A. L. Gilbert Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 2067 (N.L.R.B. 1954)

A. L. GILBERT COMPANY 2067
EMMA GILBERT, L. B. GILBERT , W. H. GILBERT , R. E. GILBERT, AND
R. D. STOKES , INDIVIDUALLY AND AS CO -PARTNERS
D/B/A A. L. GILBERT
COMPANY and TEAMSTERS , CHAUFFEURS , WAREIIOUSEMEN & HELP-
ERS, LOCAL 386. Case No. 20-CA-746. December 16,1954
Decision and Order
On June 30, 1953, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner found further
that the Respondents had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended dismissal of
these allegations of the complaint. Thereafter, Respondents filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner and
finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions, modifications, and exceptions :
1. On June 18, 1952, the Union started its organizational activities
among the Respondents' employees, holding its first meeting on the
evening of that day. At the meeting 15 employees out of 27 in the
appropriate unit signed union authorization cards. The Respondents
learned of the meeting a few hours after it had been held. On June
19, Respondent Lawrence Gilbert discussed the union meeting with 7
or 8 employees and was told by them that 15 or 16 employees had at-
tended the meeting and that all had signed union authorization cards.
During these conversations, Gilbert asked the employees if they were
union members, if they wanted a union, and if they knew what they
had signed. Lawrence Gilbert also discussed with some of these em-
ployees what the union had to offer and whether or not the union was
good for the employees. In these talks, Lawrence Gilbert was told,
with one exception, that the employees knew that they had signed union
authorization cards the night before.
Late in the afternoon of June 19, Respondents, following a sugges-
tion of one of their employees, called a meeting of all the employees,
which was addressed by Lawrence Gilbert. He stated that the Re-
spondents had applied to the Wage Stabilization Board for permission
to grant a wage increase and that under the Union's contract the em-
ployees would be permitted to work only 40 instead of their present 45
110 NLRB No. 231.
2068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours a week. After telling the employees to talk over the union
problem and inform Respondents what they wanted to do, Lawrence
Gilbert and other Respondents left the room. Following a short
discussion, the employees held a show-of-hand vote on representation
by the Union which favored the Union by 17 to 4. Respondents were
immediately informed of the outcome of the vote. However, shortly
thereafter two employees came to Respondents, complaining that the
vote not being secret, was hardly "legal." Respondents then arranged
with these employees to hold a secret ballot the following day.
On reporting to work in the morning of June 20, the employees were
assembled and Lawrence Gilbert told them that a secret ballot had
been suggested and that they could have such a ballot on the union
question if they wanted it. He also advised the employees that "if
they wanted a Union contract they would be voting themselves a 40
hour week." Respondents then left the room and the employees dis-
cussed the matter of holding another, but secret, election on the union
question. Respondents, on being told that the employees could not
agree, suggested that a secret vote be held on whether or not the em-
ployees wanted to vote on the union question. The suggestion was
adopted. The result of the balloting was that the employees did de-
sire to vote on the union question. Following this balloting, secret
ballots were cast on the issue of representation by the Union. Law-
rence and William Gilbert aided in the conduct of this election. The
counting of the ballots was deferred to Monday, June 23, to afford cer-
tain absent employees an opportunity to vote.
In the afternoon of June 20, Union Representative Kiser came to
the Respondents' plant and informed William Gilbert that he was
there to seek recognition for the Union. William Gilbert stated, how-
ever, that in the absence of his brother Lawrence he could not talk
officially on the matter. He then told Kiser about the ballots on
June 23.
At the beginning of the workday on June 23, employee Fisk asked
permission of Respondent Stokes to circulate a petition among the
employees requesting that the most recent secret ballots on the union
question be voided and that a new secret election be held. The reason
given by Fisk for circulating such a petition was that some employees
wished to change their votes. After conferring with Lawrence Gil-
bert, Stokes gave Fisk permission to circulate the petition. Stokes
then typed the petition for Fisk, who took it around to various em-
ployees, 14 of whom signed. Fisk then returned the petition to Stokes
at about 10 a. m. At 10: 30 a. in., Union Representative Kiser came
to the plant to confer with the Gilberts. Kiser demanded recognition
for the Union, stating that a majority of the employees had signed
cards and offered the cards to Lawrence Gilbert for purposes of a pay-
A. L. GILBERT COMPANY 2069
roll crosscheck. The latter rejected this offer, asserting that the men
did not know what they had signed and, further, that, in view of Fisk's
petition, he was not sure, even yet, that the employees knew what they
wanted. Gilbert then suggested that an election to decide the union
representation question be held by the Union, the Respondents, or both,
or by this Board. Kiser refused to be present at a future election on
the grounds that the Respondents had been "unfair and that [the] em-
ployees were not entitled to an election by virtue of their having signed
these applications."
The June 20 secret ballots were never counted, and the new private
poll requested by the June 23 petition was never held.
2. The principal issue in this case is whether the Respondent un-
lawfully refused to bargain with the Union by insisting that the Union
first prove its majority in a secret election. The Trial Examiner found
that the Respondent had, by refusing to deal with the Union on and
after June 23, 1952, violated Section 8 (a) (5) and (1) of the Act.
We do not agree.
The question of whether and in what circumstances the Board should,
consonant with the statutory policy, issue a bargaining order in favor
of a union on a showing of authorization cards, is a recurring one of
considerable importance in the administration of the statute. It is
also a problem of great difficulty. Ordinarily when confronted with
a union's claim that it represents a majority of employees in an ap-
propriate unit together with a request for collective bargaining, the
employer may refuse to rely upon evidence of representation in the
form of authorization cards signed by employees and insist that the
union prove its majority in a secret election conducted under Board
auspices. However, the Board, with the approval of the courts, has
made an exception to this right of an employer, where the refusal to
recognize the union is motivated not by a good-faith doubt of the
union's majority, but, as stated in the Joy Silk Mills 1 case, which is
hereby reaffirmed, "is due to a desire to gain time and to take action
to dissipate the union's majority...." In the latter case, "the re-
fusal is no longer justifiable and constitutes a violation of the duty to
bargain set forth in Section 8 (a) (5) of the Act." 2 The Board will
not permit a party to insist upon the use of its processes as a device for
undermining the declared purposes of the Act.
But whether, in any given case, the employer is legitimately or il-
legitimately motivated in asking for an election, whether he sincerely
or insincerely expresses doubt as to majority, depends in the final anal-
ysis, upon all the facts and circumstances of that case. There is no
iJoy Silk Mills, Inc., V. N. L. R. B., 185 F. 2d 732, 741 (C. A., D. C.), enfg. as mod. 85
NLRB 1263, cert. denied 341 U. S. 914 . See also N. L. R. B. v. Star Beef Company, 193
F. 2d 8 (C. A. 1), enfg. 92 NLRB 1018.
2 Joy Silk Mills , Inc. v. N. L. R. B ., supra, at page 741.
2070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule which will save the Board from the necessity of a discriminating
analysis and appraisal of all the relevant evidence before making a
good- or bad-faith determination. It is all the circumstances of the
particular case, including the employer's background, the "character
or extent" 3 of the unfair labor practices, and the sequence of events
which must be considered before a good- or bad-faith determination
can be made.
On June 23, Kiser, the Union's representation, called upon the Re-
spondents and asked for recognition as bargaining representative.
The Respondents refused to grant such recognition without an elec-
tion. They pointed to the Fisk petition circulated that very morn-
ing as evidence that the employees themselves did not know what they
wanted. Did the Respondents at this time sincerely doubt the Union's
representative status or were they deceitfully playing for time in which
to undermine the Union? In resolving this question, we are forced
to resort entirely to inferences drawn from circumstantial' evidence.
The record shows that the Respondents wanted an immediate election,
whether conducted by the Union, themselves, or the Board, to de-
termine the question of representation. Lawrence Gilbert told Kiser,
"You can hold an election, or we could call in the National Labor Re-
lations Board and get the thing settled." Kiser, the union representa-
tive, rejected the idea of any election with the statement that the em-
ployees were not entitled to one. The willingness of the Respondents
to have an immediate election under any auspices, seems to us very
strong evidence of good faith 4 An employer bent only on avoiding
collective bargaining would not have been so cooperative in seeking to
arrange an immediate election, but rather would have attempted to
produce the greatest delay. Moreover, Kiser's response to the request
for an election was enough to raise a doubt in the mind of any rea-
sonable man as to whether his union did in fact represent a majority
of employees. Finally, all Board Members agree that the Respondent
did not commit any unfair labor practices after they requested an elec-
tion, which casts further doubt on any inference that they sought an
election in order to gain time for undermining the Union by coercive
tactics.
We have found that the Respondents violated the Act by their inter-
rogation and polling of employees. This is the only unfair labor
practice which we have found was committed by the Respondents either
before or after the Union's request to bargain. Although by arrogat-
ing to themselves a function which is properly the Board's, the Re-
3 Beaver Machine & Tool Co., Inc ., 97 NLRB 33, 35.
`Roanoke Public Warehouse, 72 NLRB 1281 , 1282; see the dissenting opinion of Mem-
bers Reynolds and Murdock in John Deere Plow Company of St. Louis , 82 NLRB 69, 75,
adopted by the court as the reason for refusing to find a violation of Section 8 (a) (5) of
the Act, N. L. R. B. v. John Deere Plow Co. of St . Louis, 187 F. 2d 26 (C. A. 5).
A. L. GILBERT COMPANY 2071
spondents unlawfully interfered with the rights of their employees
and thereby violated Section 8 (a) (1) of the Act, their conduct was
carried out in large part at the suggestion of some of the employees.
We do not believe that this one violation of Section 8 (a) (1) of the
Act is sufficient to establish that in subsequently refusing to recognize
the Union without an election, the Respondents were motivated by
bad faith. Certainly, this unlawful conduct was less serious than that
found insufficient in other cases to establish that a refusal to recog-
nize a union without an election was motivated by bad faith.5
Upon the entire record in the case, we are not convinced that the
General Counsel has sustained his burden of showing that in refusing
to recognize the Union without an election, the Respondents in bad
faith were implementing a determination to refuse to bargain as the
statute requires. Accordingly, we shall dismiss the 8 (a) (5)
allegation of the complaint.
3. We agree with the Trial Examiner that, by interrogating and
polling their employees as to union membership, the Respondents
violated Section 8 (a) (1) of the Act.
In the recently issued Blue Flash case,6 the Board decided that an
employer's interrogation of his employees as to union membership or
activities is neither lawful nor unlawful per se. Whether it is one or
the other depends on the nature of the interrogation and the circum-
stances under which it takes place. The test of illegality is "whether,
under all the circumstances, the interrogation reasonably tends to re-
strain or interfere with the employees in the exercise of the rights
guaranteed by the Act." If it does have this tendency to restrain or
interfere with employees, it violates Section 8 (a) (1) of the Act;
otherwise it is lawful. It is readily apparent that under the Blue Flash
test, an employer does not have carte blanche to pry into his employees'
union allegiances or attitudes; neither is every interrogation, regardless
5In Beaver Machine ci Tool Co., Inc ., supra, the Board found that an employer's inter-
ference with and support of an independent union and a supervisor 's warning to an em-
ployee that he would be "on the pan" if he talked about the union, although violative of
Section 8 (a) (1) of the Act , were not sufficient to establish that the respondent 's refusal
to bargain with an outside union without an election was motivated by bad faith. In
Roanoke Public Warehouse , 72 NLRB 1281 , the Board held that prior threats by one
supervisor to discharge every employee who joined the union , and unlawful interrogation
by another did not establish that the respondent questioned the union 's majority in bad
faith In Chamberlain Corporation, 75 NLRB 1188 , the Board refused to find bad faith
insistence upon an election , although previous to such insistence a supervisor had threat-
ened to discharge union members and to close the plant if the union was successful in
organizing employees . In his dissenting opinion in The Cuff man Lumber Company case,
82 NLRB 296 , 302, Member Murdock did not consider contemporaneous extensive 8 (a)
( 1) conduct by supervisory employees and an unlawful discharge in violation of 8 (a) (3)
evidence of bad faith in insisting upon an election, where the respondent had expressed
willingness to agree to a consent election and the union had refused to allow the re-
spondent to examine the authorization cards. And in the John Deere case, supra, the
dissenting members said : "Nor does it seem to us that the mere fact that statements of
supervisory employees prior to the May 24 election are found to constitute 8 (1) . . .
necessarily precludes the existence of a good faith doubt on the Employer's part."
6 109 NLRB 591.
2072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of circumstances and impact, unlawful. As we held in the Blue Flash
decision the Board has no a priori attitude toward the question of in-
terrogation as an unfair labor practice. Each case turns on its own
particular facts. ". . . the time, the place, the personnel involved,
the information sought and the employer's conceded preference all
must be considered in determining whether or not the actual or likely
effect of the interrogations upon the employees constitutes interference,
restraint or coercion." 7 Polling of employees is akin to interrogation
and the tests for determining the unlawfulness of the latter are equally
applicable to the former a
In the present case, the Respondents first interrogated their employ-
ees as to union matters, then arranged an open meeting at which the
employees could decide what they wanted to do about the union mat-
ter, and finally conducted a secret poll of employee sentiment, because
two employees expressed doubt that the open poll really reflected the
desires of the employees. Even though the Employer's purpose in the
repeated interrogations may have been intended only to satisfy the
doubts of a few employees, and therefore to have been done in good
faith, such successive interrogation usurping as it did the Board's
established procedure which exists for the sole purpose of finally re-
solving questions of majority status, extended beyond the permissible
limits of employer interrogation as envisaged in the Blue.Flash deci-
sion. As the statute, through the Board, has established a regular
procedure to resolve representation issues, and the Respondents had
every right to avail themselves of that procedure, there was no need
or occasion for the Respondents to embark on such repeated unilateral
pollings of employee sentiment. We find, therefore, that the successive
interrogation and polling of employees necessarily created in the
minds of the employees an element of coercion which the statute pro-
hibits, notwithstanding the honest intentions of the Respondents. Ac-
cordingly, we find that by the repeated interrogations of their employ-
ees, including the polling, the Respondents violated Section 8 (a) (1)
of the Act.
4. We also find, contrary to the Trial Examiner, that the Respond-
ents' speech on June 19 did not violate Section 8 (a) (1) of the Act.
The Trial Examiner found such a violation in (1) the Respondents'
announcement of the filing on the same day with the Wage Stabiliza-
7 N. L. R B. v. Syracuse Color Press , Inc, 209 F. 2d 596, 599 ( C. A. 2), cert. denied
347 U. S 966.
8N. L. If. B. v. Protein Blenders, Inc ., 215 F. 2d 749 ( C. A. 8), denying enforcement to
105 NLRB 890 , where the court said : "Thus it would seem that the Board ought accept-
ingly to have recognized in the present situation that mere interrogation as to union
membership or mere polling as to union sentiment cannot abstractly be declared to con-
stitute a violation of $ 8 (a ) ( 1). Such interrogation or polling necessarily may, how-
ever, be found to constitute a violation of the Act , if the setting , the conditions, the
methods, the incidents , the purpose , or other probative context of the particular situa-
tion can be appraised , in reasonable probability , as having had the effect of restraining
or coercing the employees in the exercise of their rights under the Act."
A. L. GILBERT COMPANY 2073
tion Board of an application for approval of a wage increase, and
(2) the Respondents' discussion of the Union's 40-hour week policy.
As to (1) the record shows that on June 6, 1952, about 2 weeks before
the advent of the Union, the Respondents obtained from the Wage
Stabilization Board a form of application for approval of a wage
increase, and on June 16, 3 days before the Union's advent, told at
least one employee about a proposed wage increase. It is true that this
proposal was not announced to the employees generally until the day
after the Union's advent. However, that was also the very day on
which the Respondent filed its application with the Stabilization
Board and so constituted the logical time for the Respondent to
announce its plans for a wage increase. While it may be deemed a
suspicious circumstance that the application was not filed until the
day after the Union's advent, the Respondents have accounted for the
2 weeks' delay in filing the application by the fact that it was necessary
to compile considerable statistical data to support the application.
Accordingly, upon the entire record, we are not convinced that the
announcement of the planned wage increase was designed to defeat
the organization efforts of the Union.
5. As to the Respondents' discussion of the Union's 40-hour week
policy, this is no violation of Section 8 (a) (1) of the Act as it was
no more than a prediction that if the Union were to represent the em-
ployees it would demand a 40-hour week, thereby eliminating over-
time, and that in supporting the Union the employees would be sup-
porting such a demand. Such predictions of future events beyond
the control of the speaker have been held by the Board to be protected
by Section 8 (c) of the Act, as mere expressions of opinion.9 Accord-
ingly, we hold this prediction to be so protected.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents Emma Gilbert,
L. B. Gilbert, W. H. Gilbert, R. E. Gilbert, and R. D. Stokes, individ-
ually and as Co-Partners d/b/a A. L. Gilbert Company, Oakdale, Cali-
fornia, their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Polling or interrogating their employees as to whether they
desire to be represented by Teamsters, Chauffeurs, Warehousemen &
Helpers, Local 386, or interrogating their employees in any other man-
ner concerning their membership in, or other activities on behalf of
that or any other labor organization, in a manner constituting inter-
9 Cary Lumber Company, 102 NLRB 406, 409.
2074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference, restraint, or coercion in violation of Section 8 (a) (1) of the
Act.
(b) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at their plant in Oakdale, California, copies of the notice
attached hereto and marked "Appendix." 10 Copies of said notice,
to be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by Respondents' representative, be posted
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondents violated Section 8
(a) (3) and Section 8 (a) (5) of the Act.
MEMBERS MURDOCK and PETERSON, concurring in part and dissenting
in part :
The issue in this case turns on the motive of the Respondents in re-
fusing on June 23, 1952, to recognize and bargain with the Union. On
that date the Union represented a majority of the employees in the
appropriate unit and requested that the Respondents bargain with
it. Were the Respondents motivated by a good-faith doubt that the
Union, in fact, represented a majority of their employees? Answer-
ing this question in the affirmative, the majority reverses the Trial Ex-
aminer's finding that the Respondents' refusal to bargain with the
Union on that date was in bad faith and violative of Section 8 (a) (5)
of the Act. We shall discuss first the evidence upon which the ma-
jority relies to establish the Respondents' good faith. We shall then
discuss the countervailing evidence of bad faith, set forth in detail in
the Intermediate Report.
First, the majority regards the Respondents' professed willingness
on June 23 to go to an election as "very strong evidence of good faith."
We must, however, point out that it is the sincerity or lack of sincerity
in this very statement of the Respondents which is under scrutiny
here. The fact that the statement was made is, it seems to us, of little
la In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
A. L. GILBERT COMPANY 2075
significance if the General Counsel has proved by a preponderance of
the evidence that it was made in bad faith. Second, the majority ad-
vances the argument that the Union's response to the request for an
election was "enough to raise a doubt in the mind of any reasonable
man" that it did, in fact, enjoy majority status. The record shows,
however, that the Union's refusal to consent to an election was the
result of the Respondents' unfair labor practices in attempting to
wean the employees away from the Union, as the Trial Examiner
found. In the very recent Aiello case 11 the majority of this Board
holds that when an employer, who has committed unfair labor prac-
tices, refuses to bargain on the basis of authorization cards the Union
must decide either to go to an election or file charges with the Board.
The selection of either alternative by the Union precludes the other.
Had this Union agreed to an election, the 8 (a) (5) charges perforce
would be dismissed under the Aiello doctrine on the ground that the
Union had thereby waived the Respondents' unfair labor practices
by going to an election with knowledge thereof. This Union chose
the alternative of filing charges with the Board in exact conformance
with the Aiello decision. Now the majority in the face of that de-
cision holds that the Union's charges should be dismissed on the
ground, in part, that it refused to go to an election. The majority
advances an additional argument as evidence of the Respondents'
good faith by noting that no unfair labor practices were committed
after the request to bargain. This is the first time, to our knowledge,
that a suggestion of this kind has been made. We think it is suffi-
cient to point out here, although we shall discuss below the majority's
restatement of the Joy Silk Mills 12 principle, that the Respondents'
good or bad faith at the time of the refusal "must be determined in
the light of all relevant facts in the case, including any unlawful con-
duct of the employer. . . ." [Emphasis supplied.] Certainly, the
Respondents' conduct before June 23 is as legally relevant in deter-
mining the sincerity of their alleged doubt as to the Union's majority
status as anything that occurred after that date. The motive for a
deed cannot be insulated from the evidence that precedes it because
of the lack of cumulative evidence after it is done.
The evidence upon which the Trial Examiner relied in finding
that the Respondents did not have an honest doubt that the Union
represented a majority of their employees is as follows: On June 19,
1952, the very day following the first day of the Union' s organiza-
tional campaign, Lawrence Gilbert, one of the Respondent partners,
interrogated a number of employees as to their attendance at the
union meeting of June 18, as to whether or not they wanted the
Union to represent them, and whether or not other employees wanted
"Aiello Dairy Farms, 110 NLRB 1365.
'2 Joy Silk Mills v. N. L. R. B., 185 F. 2d 732, 742 ( C. A., D. C.).
2076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. (He learned from this interrogation that a majority of
employees had signed authorization cards.) At the end of the shift
on that day Lawrence Gilbert spoke to the employees assembled in a
group. According to his testimony, he said : "I asked them if they
were sure they understood the whole thing, and if they knew what
they were doing." He then proceeded to tell them that the Company
had applied to the Wage Stabilization Board for a wage increase, and
that they had been told it would probably be approved. He also
made the following statement : "I said the union contract, as I sup-
pose they all knew, would call for a regular 40-hour work week. And
of course they all knew we were then operating on a regular 45. . . . I
had a blank piece of pad there in my hand, and I tossed it over to one
of the fellows and said, `Figure it out."' After Respondents' officials
left the meeting the employees discussed the matter among themselves.
The record reveals that a number of employees objected to the par-
ticipation of an employee who had not attended the June 18 meeting
on the ground that "the men who did not go down [to the union
meeting] didn't have any right to say anything, or have any right
to vote, because the only ones who would be fired, if anything wins
done, were the men who did go down and sign up." On the follow-
ing day the Respondents continued their campaign to wean the em-
ployees away from the Union. Learning that the employees had voted
17 to 4 in favor of union representation at the employees' meeting
the preceding day, the Respondents adopted a suggestion that another
vote be taken by secret ballot. This poll was conducted by the Re-
spondents on June 20 and June 23, but the ballots were never counted.
Acting on another "suggestion" of an employee, the Respondents pre-
pared a petition to the effect that the undersigned employees requested
that the June 20 ballot "be declared null and void, and that a new
ballot be taken." This petition was then circulated among the em-
ployees and 14 of them signed it.
The Trial Examiner found that the Respondents' questioning of
their employees concerning union activities, the promise of a wage in-
crease immediately upon the advent of the Union, the threat of a de-
creased workweek in the event the Union secured a contract, and the
private polling of employees as to their desires with regard to union
representation constituted interference, restraint, and coercion within
the meaning of Section 8 (a) (1) of the Act. The majority agrees that.
the Respondents' acts of interrogation and the polls of June 20 and 23
were violative of the Act.13 While the majority regards as "a suspi-
cious circumstance" the fact that the application for a wage increase
i$ while we are of course pleased to find that our colleagues find this interrogation a
violation , using some of the same rationale we used in our dissent in the Blue Flash case
we must confess that it is not quite clear to us why they dismissed the interrogation in
that case but find it a violation in this. See Blue Flash Express, Inc., 109 NLRB 591.
A. L. GILBERT COMPANY 2077
was made and announced to the employees only on the day after the
advent of the Union, the majority refuses to find that it was a promise
of benefit to discourage membership in the Union. As to the threat
that the employees would be voting for a 40-hour rather than the cur-
rent 45-hour workweek if they voted for the Union, the majority re-
gards this statement as nothing more than a "prediction" that the
Union in bargaining negotiations would demand and presumably re-
ceive a lower workweek and less pay for the employees. Such chari-
table inferences as to the Respondents seem to us unwarranted on this
record. We are convinced, as was the Trial Examiner, that the Re-
spondents' course of conduct, summarized above, was instigated, as
soon as the Respondents learned of the advent of the Union, for the
sole purpose of defeating the Union's organizational campaign. Hav-
ing learned on June 19 that a majority of the employees had signed up
in the Union, Lawrence Gilbert obviously began his" speeches with a
promise of a wage increase but threat of a reduction in take-home pay
if the Union came in and engaged in the polling maneuvers for the
express purpose of eroding the Union's majority. We cannot reduce
all of this evidence to no more than "one violation" of Section 8 (a) (1)
of the Act that occurred notwithstanding the "honest intentions" of
the Respondents.-
It seems to us clear from the nature and extent of the Respondents"
unfair labor practices, all telescoped within the short period between
June 18, the day of the Union's advent into the plant, and June 23,
the day it requested bargaining, that it was not a good-faith doubt of
the Union's majority which prompted the Respondents to refuse to
bargain. Indeed, on the facts in this case the Respondents could not
have had the slightest doubt of the Union's majority status. All of
the employees had been unlawfully interrogated and polled by the
Respondents only a few days before the request and an overwhelming
majority had affirmatively indicated their desire for union represen-
tation.15
The majority, however, while suggesting that the test of good faith
is the sincerity or lack of sincerity in the employer's expression of
doubt concerning the Union's majority, nevertheless exonerates this
employer of any such insincerity on the ground, in part, that the un-
14 As indicated above, the Respondents engaged not in a single act of interrogation, but
in successive acts involving a number of their employees , both individually and collec-
tively. In addition to the separate acts of interrogation , the Respondents separately
polled their employees we do not understand the mathematical process by which all of
these separate violations of Section 8 (a) (1) of the Act are totalled by the majority
into "one violation."
11 The instant case is distinguishable from those cited by the majority in footnotes 4
and 5 In addition to the fact that the Respondents in this case were fully aware of the
Union ' s majority status, the extensive unfair labor practices , directed to the destruction
of the Union's majority, were committed not by minor supervisors but personally by Law-
rence Gilbert , one of the Respondents ' partners , with the consent of the remaining partners..
2078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fair labor practices occurred before rather than after the refusal to
bargain. It seems to us that the application contradicts the test.
Where, as here, an employer has violated the Act immediately before
the request to bargain and, indeed, on the very day of the request how
can it be said that such an employer's refusal was motivated by a
sincere doubt, devoid of any intention to impede the processes of the
Act? The Act provides a method for resolving such doubts by filing
a petition with the Board, which this employer was free to do. An
employer, which refrains from filing such a petition, cannot commit
serious unfair labor practices and then assert as a defense to its refusal
to bargain that it had a sincere doubt as to the Union's majority.
The majority states that by this decision the Joy Silk Mills case is
"reaffirmed." We must point out, however, that this reaffirmance ap-
pears to be related only to the specific type of bad-faith motivation
that occurred in that case. Apparently, bad faith in a refusal to bar-
gain case can only be proved to the majority's satisfaction where the
employer has desired "to gain time and to take action to dissipate the
union's majority." We do not believe that this limited concept of bad-
faith motivation comports with the general rule of law of the Joy Silk
Mills case, a rule of law followed in numerous Board and court cases
throughout the long history of this Act.16
Contrary to the majority, the statute does not create any "right of an
employer," when confronted with a claim of majority representation,
to "insist" that the Union prove its majority in a Board-conducted
election. The Act requires that an employer recognize and bargain
with the majority bargaining representative of its employees, even
though that majority has not been achieved through a Board election.
At the time of the passage of the Taft-Hartley Act an attempt was
made to amend Section 8 (a) (5) of the Act to give an employer the
right to refuse to bargain with a union unless it was recognized or
certified by the Board as the bargaining representative." This at-
tempt was defeated in Congress; it is not for this Board to put into
the Act what Congress refused to put in. The rule of law, therefore,
which provides the obligation to bargain with a majority representa-
tive, and which permits proof of majority to be established either by
valid authorization cards or a Board election, has not been changed.
The good-faith doubt exception spelled out in the Joy Silk Mills and
other cases is not to the employer's right to an election but to its
'duty to bargain with a union representing a majority of its employees.
Our view in this respect has been affirmed by a most recent decision
36 See cases cited in footnote 21, below.
17 H R. 3020, as passed the House, 80th Cong, 1st Sess., page 21 (1947) ; House Rep.
No. 245 on H. R. 3020, 80th Cong, 1st Sess., p. 30 (1947).
A. -L. GILBERT COMPANY 2079
of the Supreme Court of the United States.18 Justice Frankfurter,
speaking for a unanimous court, held that Congress in amending the
National Labor Relations Act in 1947 provided that ". . . (d) Board
certification could only be granted as the result of an election .. .
though an employer would presumably still be under a duty to bar-
gain with an uncertified union that had a clear majority...."
[Emphasis supplied.]
The opening paragraph of the court's opinion in the Joy Silk Mills
case correctly states the rule of law with regard to this narrow excep-
tion to the employer's obligation under Section 8 (a) (5) to bargain
with a union which in fact represents a majority of his employees.
It has been held that an employer may refuse recognition to a
union when motivated by a good faith doubt as to that union's
majority status [citing cases]."
Necessarily, this statement of the law includes, but is not limited to,
the situation in which, as in the Joy Silk Mills case itself, the em-
ployer is specifically motivated by "a desire to gain time and to dis-
sipate the union's majority." In a very recent case the same general
rule of law was applied where the respondent was motivated "by anti-
union animus and respondent's desire to sway its employees from their
union affiliation through intimidation and otherwise coercive
tactics." 20 The basic issue, tested in these and similar cases, is the
sincerity or lack of sincerity in the employer's expression of doubt
concerning the Union's majority status. The insincerity of the em--
ployer's position may be established by the commission of serious
unfair labor practices, whether they occur before or after the request
to bargain is made. There is nothing in these cases to warrant the
conclusion that evidence of an employer's bad faith must be limited
to evidence of a deliberate intention to preclude a union victory at
the polls; nor do these cases require a finding of bad faith solely
on the ground that the Respondents "sought an election in order to
gain time for undermining the Union by coercive tactics." While
such a theory would, of course, support the dismissal of cases where
the employer had done as much as possible to destroy the union's
majority before the request is made, it is incorrect to attribute this
doctrine to the Joy Silk Mills decision. To the extent that the major-
ity's reinterpretation of this decision means that they are adopting it
for this and future decisions only as so modified, we must vigorously
dissent. For, in our opinion, their application of that doctrine
erroneously limits the Joy Silk Mills rule, which has been affirmed
' N. L. R. B. v. Ray Brooks , 348 U. S. 96.
19 Joy Stilk Mills v. N. L. R. B., supra, at page 741.
21 N. L. R. B. v. Southeastern Rubber Mfg. Co ., 213 F. 2d 11 ( C. A. 5).
2080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by every circuit court of appeals in which the issue has been raised'21
and by the Supreme Court of the United States.22
We are satisfied that the Respondents' refusal to recognize and bar-
gain with the Union on June 23, 1952, was not motivated by a good-
faith doubt as to its majority status. Accordingly, we would affirm
the Trial Examiner's finding that the Respondents have violated Sec-
tion 8 (a) (5) of the Act and, independently, violated Section 8
(a) (1).
N. L R. B. v. Louisville Refining Co, 102 F. 2d 678, 680 (C. A. 6), cert denied 308
U. S 568; Dahlstrom Metallic Door Co. v N L R. B , 112 F 2d 756, 757 (C. A. 2) ;
Solvay Process Co. v. N L. R. B, 117 F 2d 83, 86 (C A 5), cert denied 313 U. S. 596;
N. L. R. B v. Federbush Co, 121 F 2d 954, 956 (C. A. 2) ; Lebanon Steel Foundry v.
N L R. B., 130 F 2d 404, 407 through 408 (C. A, D C ), cert denied 317 U. S 659;
Joy Silk Mills, Inc. v N. L. R B., 185 F. 2d732, 741 (C A, D C ), cert. denied 341 U. S
914, N. L. R. B, v Inter-City Advertising Co , 190 F 2d 420, 421 (C A 4), cert. denied
342 U. S 908, N L R B. v W. T. Grant Company, 199 F. 2d 711, 712 (C. A 9), cert.
denied 344 U. S. 928; Motorola, Inc v N L R. B, 199 F 2d 82, 83 (C. A. 9) , N L. R. B.
v. Everett Van Kleeck and Company, Inc, 189 F 2d 516, 517 (C. A. 2) ; N L. R. B. v
Kobratz, 193 F. 2d 8, 15 (C. A. 1) ; N. L. R B v. Poultry Enterprises, Inc, 207 F. 2d
522, 525 (C. A. 5) ; Southeastern Rubber Mfg. Co, Inc, v. N. L. R. B, 213 F. 2d 11
(C A 5).
=N. L. R. B. v. Bradford Dyeing Ass'n, 310 U. S 318, 339; Franks Bros. Co.
v. N. L. R. B, 321 U. S 702.
Appendix
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT poll or interrogate our employees as to whether
they desire to be represented by Teamsters, Chauffeurs, Ware-
housemen & Helpers, Local 386, nor will we interrogate our em-
ployees in any manner concerning their membership in, or other
activities on behalf of that or any other labor organization, in a
manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act.
EMMA GILBERT, L. B. GILBERT, W. H. GILBERT,
R. E. GILBERT, AND R. D. STOKES, INDIVIDUALLY
AND AS CO-PARTNERS D/B/A A. L. GILBERT
COMPANY,
Employers.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
A. L. GILBERT COMPANY
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
2081
Upon a second amended charge duly filed on November 4, 1952,' by Teamsters,
Chauffeurs, Warehousemen & Helpers, Local 386, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board, herein respectively called the
General Counsel and the Board, by the Regional Director for the Twentieth Region
(San Francisco, California), issued his complaint on November 12, against Emma
Gilbert, L. B. Gilbert, W. H. Gilbert, R. E. Gilbert, and R. D. Stokes, individually and
as Co-Partners d/b/a A. L. Gilbert Company, herein collectively called Respond-.
ents, alleging that Respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act.
Copies of the complaint and the second amended charge, together with notice of
hearing thereon, were duly served upon Respondents and upon the Union.
With respect to the unfair labor practices, the complaint alleged in substance that
Respondents: (1) On various occasions since on or about June 19, engaged in cer-
tain stated acts and conduct which interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed by Section 7 of the Act; (2) since
on or about June 23, has refused to bargain collectively with the Union although the
Union, at all times material herein, has been the duly designated collective-bargain-
ing representative of Respondents' employees in a certain appropriate unit; (3) on or
about July 7, in violation of Section 8 (a) (3) of the Act, discharged Louis Parker,
Roy Fitzgerald, and Gordon Leydecker because of their activities in behalf of the
Union but reinstated said three persons the following day; and (4) on or about July
11 discharged Gordon Leydecker and on or about August 4 discharged Harvey Dick-
erson, and thereafter refused to reinstate them, or either of them, because of Ley-
decker's and Dickerson's activities in behalf of the Union.
Respondents duly filed an answer on December 9, denying the commission of the
alleged unfair labor practices.
Pursuant to due notice, a hearing was held between January 15 and February 5,
1953, at Modesto, California, before the duly designated Trial Examiner. The Gen-
eral Counsel and Respondents were represented by counsel and participated in the
hearing. Full opportunity was afforded the parties to be heard, to examine and
cross-examine witnesses, and to introduce evidence relevant to the issues. At the
conclusion of the taking of the evidence, the General Counsel moved to conform the
complaint to the proof with respect to minor inaccuracies. The motion was granted
without objection. Counsel were then informed that they might file briefs or proposed
findings of fact and conclusions of law, or both, with the Trial Examiner on or be-
fore February 25, 1953.2 A brief has been received from Respondents' counsel which
has been carefully considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS ACTIVITIES OF RESPONDENTS
A. L. Gilbert Company is a partnership composed of Emma Gilbert and her three
sons, L. B. Gilbert, W. H. Gilbert, and R. E. Gilbert, and R. D. Stokes. Respond-
ents' principal offices and place of business is located in Oakdale, California, where
they are engaged in processing, selling, and distributing grain, hay, and feed. Dur-
ing 1951, Respondents' purchases of raw material exceeded $600,000, about $500,000
of which was received from points located outside the State of California.
Respondents admit, and the Trial Examiner finds, that Respondents are engaged
in commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, affiliated with the
American Federation of Labor, is a labor organization admitting to membership
employees of Respondents.
1 Unless otherwise noted all dates refer to 1952
2 At the request of Respondents' counsel, the time to file briefs was extended to March
10, 1953.
338207-55-vol. 110-132
2082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged, the answer admitted, and the Trial Examiner finds, that
during all times material herein , all Respondents ' production and maintenance em-
ployees, excluding office and supervisory employees constituted, and now constitute,
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act, with respect to grievances, labor disputes, rates of pay,
wages, hours of employment, and other conditions of employment. The Trial
Examiner further finds that said unit insures to Respondents' employees the full
benefit of their right to self-organization and collective bargaining and otherwise
.effectuates the policies of the Act.
2. Majority status of the Union in the appropriate unit
At the hearing herein, there was introduced in evidence by the General Counsel
a list prepared from Respondents' records by the secretary of Respondents' counsel
containing the names of all the persons in the appropriate unit. The list shows that
on June 23, Respondents had in their employ 27 persons in said unit. On behalf
of the General Counsel there were offered and received in evidence 16 signed cards 3
reading in part as follows:
Desiring to become a member of the above Union No. 386, I hereby make
application for admission to membership.
Applicant further declares that: "Pending my acceptance as a member, I
hereby designate and appoint the above Union 386 as my exclusive repre-
sentative for the purposes of collective bargaining with employer."
The genuineness of the signatures appearing on the cards was not challenged.
The Trial Examiner has compared the names appearing on said cards with the list
prepared from the records of Respondents and received in evidence and finds that on
June 18, 15 employees (excluding Sheldon) in the appropriate unit had signed
.cards designating the Union as their collective-bargaining representative.
The credible evidence clearly establishes, and the Trial Examiner finds, that each
.of the 15 persons whose names appear on the cards signed the cards voluntarily and
without any coercion by the Union or any of its representatives at a meeting called
by the Union on June 18. Respondents, however, contended at the hearing and in
,their brief that the Union at no time represented the majority of the employees in
the appropriate unit because (1) Arthur Bjore, who had signed a card, had previously
notified Respondents he was quitting his job, that not later than June 20 he had
informed the other employees that he would not participate in their determination
.of their bargaining representative, and that Bjore did quit his job on June 27; and
(2) four other signers of cards (Eugene Fisk, Forest Ball, Gino Giovannoni, and
Lloyd Edwards) "did not understand such cards constituted an unconditional
authorization to the Union as bargaining agent."
Fisk testified that: He signed a union membership application card at the June
18 meeting, 4 he thought the signing thereof was a preliminary step toward joining
the Union; he was under the impression that he would not be a member of the
'Union until he "had been voted into the Union" and had paid his initiation fees and
at least 1 month's dues, he did not "believe" he read that portion of the card
-which specifically stated that he was applying for membership in the Union and
-pending approval of his application was designating the Union as his bargaining
representative; he understood that the Union would become his bargaining repre-
sentative only "when and if I was elected [into the Union] and finally became a
member" thereof; at the June 18 meeting he paid $5 toward his initiation fee because
of certain insurance benefits which inure to applicants paying part or all of the
initiation fees at the time of applying for membership ; the receipt given him stated
that the $5 would be forfeited if the entire amount due was not paid within the
following 30 days; and because he did not complete his payments he lost the $5.
Fisk further testified that when he signed the application on June 18, he knew he
was applying for membership in the "AFL Teamsters and Warehousemen's Union"
S One of said cards was signed by Edward Sheldon who the General Counsel and Re-
spondents agreed upon the record was not within the appropriate unit.
4 Sixteen employees of Respondents , including Sheldon, attended this meeting and each
.signed a membership application card.
A. L. GILBERT COMPANY 2083
and wanted it to be his bargaining representative ; that at the meeting held on Re-
spondents' premises the following day, June 19, which was attended by 25 or 26 of
the 27 production and maintenance employees then in Respondents' employ,5 he
was 1 of 17 employees of the 21 voting to signify approval of the Union representing
the employees .6
Ball testified that : At the June 18 meeting he signed a union membership appli-
cation card; he signed it without reading the entire card; the only portion he read
was that which related to certain questions the applicant had to answer ; he knew
he was applying for membership in the Union because prior to filling out and
signing the cards Wendell J. Kiser, the Union's secretary-treasurer, had announced
that the cards were applications for membership in the Union; he signed the card
because Kiser had stated at the meeting that if Respondents would not sign a con-
tract or agree to recognize the Union then , in that event, an election would auto-
matically be held. Ball further testified that he did not inform anyone, prior to
signing the card, that he was signing it because of Kiser's promise of election if
Respondents failed to recognize the Union or refuse to sign a contract with the
Union; that Kiser also announced at the meeting that he would call upon Respond-
ents the following day, inform Respondents that the Union represented the majority
of the employees, and then endeavor to negotiate a contract; that he favored such
a plan; and that at no time did he advise the Union that he did not want it to
represent him as his bargaining representative.
Gino Giovannoni testified that: At the June 18 meeting he signed a union mem-
bership application card; he signed the card without reading it in its entirety because
he "was in a hurry to get out of" the meeting; he knew he was signing an applica-
tion for membership in the Union; he gave Kiser $5 toward his initiation fee because
of the insurance benefits which inure to applicants paying all or part of the initia-
tion fees at the time of applying for membership; Kiser announced that he would call
upon Respondents the following morning and "if [Respondents] wouldn't sign it it
would go to a vote, we would have the privilege of voting"; Kiser did not announce
what question the employees were going to vote on, in case a vote was held, but
he assumed that the employees would vote, if Respondents did not comply with
Kiser's request, on "whether we still wanted the Union or not"; Kiser's announced
plan to "contact the Gilberts and ask the Gilberts to negotiate a contract" met
with his approval; although while at the meeting he wanted the Union to be his
representative, sometime between the conclusion of the meeting and the afore-
mentioned June 19 meeting he changed his mind. He further testified that he
voted at the latter meeting in favor of the Union and that at no time did he advise
anyone that he did not want to be represented by the Union.
Lloyd Edwards testified that: At the June 18 meeting he signed a union mem-
bership application card; before any employee signed a card he asked Kiser 2
questions, I of which was: "In the event that any of the employees of the Gilbert
Company who are not here, or the management, do not wish to negotiate with
you, in that event what is going to happen? " to which Kiser replied, "In that case
it will automatically go to a vote"; he did not read those portions of the card
which refer to making application for membership and pending approval thereof
designating the Union the applicant 's bargaining representative ; at said meeting
he handed Kiser the "withdrawal card" which he had received from the Union
when he left the employment of a previous employer with whom the Union then
had a collective-bargaining contract; at the June 19 meeting he voted "for the
Union" merely because he was not against unions; and one of the reasons he signed
the card was that Kiser had stated at the meeting that the employees would have
an election to decide whether or not they wanted to be represented by the Union.
Kiser denied that he announced at the June 18 meeting that if Respondents did
not recognize or deal with the Union or if the employees not attending the meeting
objected to being represented by the Union, then the employees would automatically
vote on the question of representation. He testified that at the meeting he explained
that by executing the cards the employees were designating the Union their bar-
gaining representative and that when asked at the meeting, "In the event the men
8 This meeting is discussed in detail below.
6 Fisk could not recall the exact wording of the motion He testified that it was to the
effect, "Shall the A L Gilbert Company sign the contract" or "Shall the employees be
represented by the Union." Other employees testified that the question posed was whether
the employees should join the Union. In any event, the record as a whole clearly estab-
lishes, and the Trial Examiner finds, that the voting at that meeting was to ascertain
whether or not the Union was to be the collective -bargaining respresentative of Respond-
ents' employees.
.2084 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
signed the applications and later it developed that the other employees [ not at meet-
ing] didn't agree to this, or the Gilberts didn't agree to it" would there be "an elec-
tion?" he replied that if the Union represented the majority "it wasn't entirely neces-
sary to have an election ." The Trial Examiner credits, upon the preponderance of
the evidence , as well as the logic of the situation , Kiser's denials . The applications
and designations , furthermore , are clear and unequivocal and the employees well
knew, even if they did not read the portion of the application which specifically
designates the Union as the applicants ' bargaining representative , that by executing
said cards they were applying for union membership and pending acceptance of their
applications they were designating the Union their agent for the purpose of collec-
tive bargaining . This conclusion finds support in the evidence that Kiser, upon being
advised that the majority of the employees had signed cards, announced that he would
contact Respondents and would attempt to secure a contract , that such plan met
with the approval of all employees present at the meeting; that at no time did any
designee inform the Union of his desire to cancel his designation ; and that the day
following the Union 's meeting of June 18, all the employees ( including Edwards)
in the unit found appropriate , except 1 or 2, voted at an election held on Respondents'
premises by a vote of 17 to 4 (4 or 5 employees abstaining from voting ) to select
the Union as their collective -bargaining representative
Respondents ' further contention that the employees ' "intent in signing [the cards],
their understanding of what they signed , and their reservations , when signing, ex-
pressed or unexpressed , are of the greatest importance " in evaluating the question
of representation is without merit. First , as found above , each employee executing
an application card well knew that he was applying for union membership . There-
fore, even assuming that the cards did not specifically state that pending acceptance
by the Union of the application the applicant was designating the Union his bar-
gaining representative , that fact is of no real consequence in resolving a question
of representation for an application for membership in a labor organization suffices
to confer authority upon that organization to bargain on behalf of the applicant.
As the Court of Appeals for the District of Columbia aptly stated in Lebanon
Steel Foundry Co. v. N. L. R B., 130 F. 2d 404, at page 407, "an application for
union membership implies authority to bargain." 7 Second, as the same court said
in Joy Silk Mills, Inc. v. N. L. R. B, 185 F. 2d 732, "It has been held that an
employee's thoughts (or afterthoughts ) as to why he signed a union card , and what
he thought the card meant, cannot negative the overt action of having signed a
card designating a union as bargaining agent . N. L. R. B. v. Sunshine Mining
Co., 110 F. 2d 780, 790 ; N. L. R. B. v. Consolidated Machine Tool Corporation,
67 NLRB 737, enfd. 163 F. 2d 376, cert. denied 332 U. S. 824." 8
Under the circumstances , the Trial Examiner finds that the said 15 employees
(excluding Sheldon ) by signing the said membership application cards duly desig-
nated the Union as their collective -bargaining representative . The Trial Examiner
further finds , upon the basis of the entire record , that the Union was on June 18,
1952, and at all times thereafter has been, and still is, the duly designated repre-
sentative of the majority of the employees in the appropriate unit, and that, by
virtue of Section 9 (a) of the Act, was on June 18, 1952, and since that date has
been , the exclusive representative of all the employees in said unit for the purposes
of collective bargaining in respect to grievances , rates of pay, wages, hours of em-
ployment , and other conditions of employment.
3. The refusal to bargain
The Pertinent Facts
Admittedly, within a few hours of the aforementioned union meeting of June 18,
Lawrence Gilbert and his two brothers , William and Robert , were aware of the
meeting.
Lawrence Gilbert credibly testified that : The following day, June 19, he dis-
cussed the meeting with some of the employees in order to ascertain "what they
wanted , what it was all about"; Ray Beckwith was the first employee to whom he
spoke about the events of the previous evening; he asked Beckwith whether he had
7 Accord, N. L R. B v Consolidated Machine Tool Corp., 163 F. 2d 376 (C A. 2) ;
N. L. R B v. Bradford Dyeing Assn, 310 U. S 318; N. L R B v. Somerset Shoe CIO, 111
F. 2d 681 (C. A. 1) ; N L. R. B v. Fargo Foundry Co., 141 F. 2d 462 (C. A. 8) ; N L. R. B.
it. Louisville Refining Co, 102 F 2d 678 (C A. 6) ; Kelly A. Scott, 93 NLRB 654.
8 Accord • C. Pappas Company, Inc, 82 NLRB 765; Kelly A. Scott, 93 NLRB 654;
E H Sargent and Co , 99 NLRB 1318
A. L. GILBERT COMPANY 2085
attended the union meeting; when Beckwith answered in the affirmative , he asked,
"What did it mean, were they union members , had they paid their dues?" ; when he
asked Beckwith, "Do you fellows here want a union, do you think?" Beckwith re-
plied, "I don't know . So far as I am concerned I am well pleased . I am well
satisfied . I have a good job, and everybody is treating me fine. I just want to get
along with the boys, and if they want a union, whatever they want is all right with
me", Beckwith told him who had attended the meeting; when Beckwith stated all
the employees attending the meeting signed up, he asked whether he had signed
up, and Beckwith admitted that he had; that in response to his question, "What did you
sign?" Beckwith said, "A piece of paper"; when he asked what was on the paper,
Beckwith said he did not know, he had not read it, all the employees signed up
so he did.9
Lawrence Gilbert further credibly testified that: He next spoke to Gino Giovan-
noni about the Union ; when he asked Giovannoni if he had attended the meeting
Giovannoni answered in the affirmative ; Giovannoni then said he did not remain
long at the meeting because he had to attend a social gathering , that he and "the
other fellows" had signed application cards,1° that some of the employees "thought
there would be advantages under a union contract" and others thought otherwise;
Giovannoni replied in the negative in answer to his inquiry whether Giovannoni
had read the card ; Giovannoni also stated that he knew he signed an application
card; Giovannoni told him some employees paid some money and some had not;
when he asked Giovannoni if he wanted a union, Giovannoni replied that he was
not sure; and Giovannoni further said , "The fellows all seemed to want to sign up,
so [I] signed up quick and got out of there."
Lawrence Gilbert further testified, and the Trial Examiner finds, that: During
the June 19 afternoon rest period he , Jesse Palmer, Frank Palmer, Frank Zaro,
Forest Ball, and Edwards ( all of whom , except Wren, had attended the union meet-
ing) "had a general friendly discussion about the situation , about what the union
had to offer them, and whether it was a good deal for them or not"; he informed
the 5, "If they wanted [the Union] they sure could have it"; the 4 who had attended
the meeting admitted they had signed applications ; he asked them "if they knew
what they had signed, and if they knew what they were asking for, and all the de-
tails and ramifications of the union contract"; and they replied "they knew about it."
The same afternoon on which he talked to the five-man group , Lawrence Gilbert,
to quote from his credited testimony , "tried to find out" from employee Bjorge
"what was going on and what the men wanted to do" and Bjorge suggested that
Respondents assemble the employees and "talk the situation over."
According to Lawrence Gilbert's credited testimony, the employees were assem-
bled shortly before the end of the shift that day, June 19; that he told-them Re-
spondents had heard of the meeting of the previous night and he wanted the em-
ployees "to understand that it was perfectly all right if they wanted a union, that
whatever they wanted was what [Respondents ] wanted"; and that the following
then transpired:
I asked them if they were sure they understood the whole thing, and if they
knew what they were doing. And I told them that our wages had been frozen on
account of the Office of Wage Stabilization, but I also told them at that time,
which I previously told some of the others, that we had been in San Francisco
on the 6th day of June and had visited with the Wage Stabilization Board there,
and procured the forms and the regulations governing our status , and that we
had been told that a raise if applied for would probably be approved; and that
we had applied for that wage increase.
We asked if there were any questions , and one of them asked how much the
increase was applied for. We told them 18 cents on the apprentice bracket and
17 on the others.
* * * * * * *
I said the union contract, as I suppose they all knew, would call for a regular
40-hour work week. And of course they all knew we were operating on a regular
45 . I had a blank piece of pad there in my hand, and I tossed it over to one
of the fellows and said,' Figure it out."
0 Gilbert admitted knowing that 15 or 16 employees had attended the meeting.
10 Gilbert testified, and the Trial Examiner finds, that when he spoke to Giovannoni
about "signing up" he was referring to signing an application for union membership.
2086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They told us what the union wages were at that meeting, too. I think some-
body mentioned that. And also that they were going to get another increase.
They were promised another increase from the union.
* * * *
the last that [I] said was, "Fellows, we are just a bunch of country boys
here in a small town, and if this thing has to be decided by an NLRB election,
fine, we will try and get that. But we should be able to decide it among our-
selves. We all know each other. And we want you fellows to talk it over. Let
us know what you want us to do."
After Lawrence Gilbert and the other partners who had attended the meeting had
left, the employees discussed the matter among themselves. Eugene Fisk testified,
and the Trial Examiner finds, that some of the employees stated that they thought
Lawrence Gilbert was "bluffing" when he announced at the meeting that under a
union contract the workweek would be cut to 40 hours because "they said they can't
run that business on a 40-hcur week, they would have to run overtime"; and that
immediately after the vote (by raising of hands) had been taken-he informed Law-
rence Gilbert and his 2 brothers that the employees had voted 17 to 4 in favor of the
Union.
One of the Respondent's witnesses, Lloyd Edwards, testified, on direct examination,.
and the Trial Examiner finds, that during the discussion which ensued after the
Respondent's officials had left the meeting, the following took place:
One of the men stood up and the whole bunch who had been [at the Union's
June 18 meeting] told him he had no right to stand up. The only men interested
were the ones down at [the meeting] and the men who did not go down didn't
have any right to say anything, or have any right to vote, because the only ones
who would be fired, if anything was done, were the men who did go down and
sign up. Eight or ten men told him that. I knew some, but I didn't know all
who did.
Edwards further testified, and the Trial Examiner finds, that: After Frank Zaro and
Louis Parker had said, "If we didn't go union that somebody was going to be fired,"
he said, "I'll find out"; he telephoned Lawrence Gilbert, who was in the office, and
said "Lawrence, some of the men have the idea no matter which way they vote they
may get into trouble, fired, or something. I just want your word what would hap-
pen"; Gilbert replied, "You have my word, there would be no reprisals. You can tell'
them that"; he returned to the meeting and, despite the fact that he informed the men
of Lawrence Gilbert's assurance that there would be no reprisals, "some of those
same men still said the same thing"; and the men also discussed the 40-hour work-
week and the promised pay raise.
Lawrence Gilbert further credibly testified that: Shortly after being apprised by
Fisk that the men had voted 17 to 4 in favor of being represented by the Union,
Forest Ball and Giovannoni came into the office and talked to him about the "show of
hands vote," the slow manner in which the hands were raised when the men voted,
the fact that some employees did not vote, an employee's suggestion of making it a
unanimous vote, and that the manner in which the vote was taken showed "it was
hardly the type of an election that would be considered legal"; then Ball and Giovan-
noni suggested having a secret-ballot election to resolve the question; he replied, "We
wanted to get the thing settled down and straightened out. We wanted the men to
have their say and do what the majority of them wanted to do, without any fears of
reprisals, or any influences, or anything"; and after considering the suggestion made
by Ball and Giovannoni he came to the conclusion that the fair thing to do would
be to hold a secret-ballot election; and he and others that evening prepared ballots.
and a ballot box which were to be used at said election.
When the employees reported for work the following morning, Lawrence Gilbert
had them assembled and told them, in the presence of his brothers, William and
Robert, "It had been suggested that perhaps a secret ballot would be the way the thing
should be settled, and if they wanted a secret ballot they could have one"; that he also
stated, "As a result of the meeting the day before there had been some questions that
seemed to have arisen. One was the reprisals"; that he assured the assembled em-
ployees there would be none; that he also advised the employees that if they wanted
a union contract they would be voting themselves a 40-hour week, adding that Re-
spondents were not "imposing the 40 hours on them, because that is the union con-
tract in this area, and we know that, and that would be what [you are] asking for."
After making the aforementioned remarks Lawrence Gilbert and his brothers
left the meeting and the employees discussed the matter for about 45 minutes. The
Gilberts were then asked to return to the meeting and were informed, to quote
Lawrence Gilbert, "the thing had kind of worked around . . . to the point where
A. L. GILBERT COMPANY 2087
there was an argument going on [among the employees] as to whether they should
vote at that time or at some future date." Lawrence Gilbert then suggested that
the employees take a secret ballot to decide whether to vote on the "union question"
then or defer it. The suggestion was adopted and the employees voted secretly
to ballot on the "union question" immediately. Thereupon the employees, began to
vote on the "union question." As William Gilbert called the name of an employee
the latter stepped forward, his name was then checked by William Gilbert on the
list of employees he had, Lawrence Gilbert then handed the employee a plain,
unmarked envelope and a ballot upon which was typed, "Shall the employees of
A. L. Gilbert Company be represented by the union" (or words to that effect)
and the words "Yes" or "No." The employee was then told by Lawrence Gilbert
to step into the vacant room which had been set aside for the balloting, to mark
the ballot as he saw fit, or refrain from doing so, place the ballot inside the envelope,
and seal the envelope. After the employee did as instructed he put the envelope
which contained the ballot into a sealed ballot box which was in the custody of
Bjore, who was stationed outside the other door of the voting room. All the em-
ployees working that day cast ballots. It was understood by all, before the ballot-
ing took place, that the ballots would not be counted until the several employees
who were either on leave, or were absent on account of illness, or who were away
from the plant on company business, had an opportunity to vote. Since the ab-
sentees were not expected to return to the plant until the following Monday morn-
ing, June 23, it was agreed by all that the box containing the ballots would be placed
in Respondents' vault and the ballots not be counted until-Monday at 1 p. in.
During the afternoon of the secret-ballot election, June 20, Kiser and his two
associates called at the plant, saw William Gilbert, and told him that he "was back
on a similar mission" of some 7 years ago.li Gilbert replied, to quote his credited'
testimony, "I [am not] in a position to talk officially at [this] time, because my
brother Lawrence [is] not there." Before Kiser and his associates left the plant,
William Gilbert informed them of the secret balloting and then invited them to be
present on the following Monday when the ballots would be counted. Kiser's
reply, according to William Gilbert's testimony, which the Trial Examiner credits,
was that the balloting did not "mean anything."
Upon reporting at the plant on Monday, June 23, the several men who were
absent during the June 20 balloting were informed of the balloting. These em-
ployees then secretly cast their ballots and placed them in the box containing the
other ballots.
According to Fisk's credited testimony, at about 8:30 in the morning of June 23
(after the aforementioned several men had voted) he went to the office and told
R. D. Stokes, one of the Respondents, that some of the employees "felt they wanted
a new ballot, wanted to change their votes"; that Stokes "talked to Lawrence
Gilbert and came back with the 0. K.,12 and [Stokes] wrote the petition" 13 after
he had advised Stokes what he "wanted in the petition"; that he then circulated the
petition among the men and informed those whom he approached, "Some of the
boys wanted to change their vote, would you like to have a new election. If you
want to sign this petition, all right. If you don't all right"; and that after securing
the signatures of certain employees,14 he handed the petition to Stokes at about
10 o'clock that morning, saying, "This is all I have of those present. Let the truck
drivers sign it after they come in."
Lawrence Gilbert credibly testified further that: At about 10:30 that morning,
June 23, Kiser and his associates came to the plant and conferred with him and his
two brothers; 15 after mutual introductions had been made, he informed the union
representatives that they were a little early for the opening of the ballot box;
Kiser replied that the ballots were of no consequence, for the Union would not be
governed by it, because the employees were not entitled to an election; he then
said, "Well, that's fine" and handed Kiser the petition Fisk had circulated that
morning, adding, "We just received this petition from our men, and they don't want
to consider that ballot as their decision, either ."; when Kiser said he had signed
membership applications, he retorted, "Well, just what did these follows sign?
n About 1946 the Union's attempt to organize Respondents' plant was unsuccessful.
11 Lawrence Gilbert testified, and the Trial Examiner finds, that when Fisk told Stokes
about circulating a petition, Stokes came to him about the matter, and he said to Fisk,
"Sure Gene, go ahead Do whatever you want to do."
13 The petition read : "We, the undersigned, respectfully request that our ballot of
June 20 be declared null and void, and that a new ballot be taken."
14 Fourteen employees signed the petition.
'5 Stokes also was present during part of the conference.
2088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of them seem to know exactly what they signed"; Kiser replied,"Oh, yes,
they know what they signed all right. It was explained to them"; he then said,
"Well, Mr. Kiser, really you had your meeting over there for a few minutes. You
got a sign-up. Since then we have had it going on for several days, and as yet I
don't believe that our men are sure that they know what they want. I believe
that [is] evidenced by this petition that we have received this morning"; he refused
to comply with Kiser's request to open the ballot box, because he did not believe
the employees wanted the ballots counted; he also told Kiser, "You can hold an
election, or we will hold an election, [or] we will hold one together, . . . [or]
we could call in the National Labor Relations Board and get the thing settled";
Kiser refused his invitation to be present at a future election on the grounds that
Respondents had been "unfair, and that [the] employees were not entitled to an
election by virtue of their having signed these applications."
Lawrence Gilbert further credibly testified that during the aforementioned meet-
ing, Kiser informed him that the Union represented the majority of Respondents'
employees and that Kiser offered to submit to him the signed union application cards
for the purpose of checking those cards against Respondents' payroll records; that
instead of accepting the proffered cards he "offered [Kiser] the [Fisk] petition, and
that was the end of it. We asked [Kiser] to have the election." Instead of examin-
ing the signed cards which Kiser offered, Lawrence Gilbert asked for and received
from Kiser a blank application card.
B. Concluding findings
The right of employees under Section 7 of the Act "to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing
[and] to refrain from any or all of such activities" is effectively implemented
by Section 8 (a) (1) and (5). These provisions forbid an employer to "interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section
7," and likewise prohibit an employer from refusing to recognize or bargain col-
lectively with the majority representative of his employees in the appropriate unit.
The employer's economic hold over his employees, which inheres in their rela-
tionship, is thereby neutralized in matters of organization and representation, which
are peculiarly the concern of the employees. Interdiction against employer intrusion
in such matters is essential if employees are to be free from the coercive influence
of their employer, for employees are, as the courts have repeatedly and uniformly
found, not insensitive to the advantages in their employment that they consider are
likely to flow from their employer, nor the disadvantages which may attend their
choice of a representative opposed by their employer. And for the same reason,
employees cannot be expected to derive the full benefit from their protected right
of self-organization and the selection of a representative of their own choosing if
they believe, from "circumstances which their employer created or for which he
was fairly responsible," 16 that their representative, however, chosen, is subject to
the employer's approval or disapproval.
In open disregard of their duty of neutrality, Respondents, upon being advised by
the employees whom Lawrence Gilbert had questioned on June 19 concerning the
Union's meeting of the previous night, that 15 or 16 employees, all of whom were
in the appropriate unit, had attended said meeting and each of them had signed a
union membership application card, embarked upon a campaign to wean the em-
ployees away from their chosen representative. The testimony upon which this find-
ing is based rests mainly upon that of Lawrence Gilbert. Thus, it is admitted that
Lawrence Gilbert queried many employees about their own and other employees'
activities and sympathies for the Union. This interrogation is violative of the Act
in two respects. In the first place, by Lawrence Gilbert's questioning some employees
regarding their own union activities and sympathies, Respondents invaded an area
guaranteed to be exclusively the concern of those particular employees, for, as the
Board and the courts have repeatedly and consistently held, inherent in the very
nature of an employee's statutory right to organize is the accompanying right to
privacy in its enjoyment, free from employer intermeddling or intrusion.'? This is
10N. L. R. B v Link-Belt Co , 311 U S 584, 588.
17 Syracuse Color Press, Iitc, 103 NLRB 377; Standard-Coosa-Thatcher Company, 85
NLRB 1358; H. J Heinz Co. v. N. L. R. B, 311 U. S 514; N L R. B. v. Deena Products
Company, 195 F. 2d 330 (C. A. 7) ; N L R B. v. Laister-Kauffman Aircraft Corp., 144
F 2d 9 (C. A. 8) ; N. L. R. B. v. Chautauqua Hardware Corporation, 192 F. 2d 492 (C.
A. 2) ; N. L R B. v. Brezner Tanning Co., 141 F. 2d 62 (C A. 1) ; N L. R B. v. National
Plastic Products Co., 175 F. 2d 755 (C. A. 4) ; N. L. R. B. v. Valley Mould & Iron Corp.,
116 F. 2d 760 -(C. A. 7) ; N. L. R. B. v. LaSalle Steel Co., 178 F. 2d 829 (C. A. 7).
A. L. GILBERT COMPANY 2089
so even where the interrogation has been considered without regard to its relation
to other unfair labor practices of the employer.18 In the second place, Lawrence
Gilbert, by questioning some employees regarding other employees' union activities
and sympathies, engaged in a form of surveillance regarding those employees' organ-
izational activities and thus his action was no less coercive in its nature than direct
questioning of the employees themselves concerning their own union activities and
sympathies. In seeking this information, by whatever means, an employer violates
the clear mandate of the Act that employees be permitted to organize free from fear
of reprisal or recriminations. Such conduct of employers has been repeatedly held
to be in contravention of the Act.19 Lawrence Gilbert's conduct was nonetheless
violative of the Act, even though there is no showing that the employees about whom
he queried others were cognizant of his conduct. For, as the Fourth Circuit said,
"Any real surveillance by the employer over the union activities of employees,
whether frankly open or carefully concealed, falls under the prohibitions of the
Act." 20
Furthermore, the Trial Examiner is convinced, and finds, that Lawrence Gilbert's
announcement at the June 19 meeting of the application to the Wage Stabilization
Board for permission to raise wages 17 cents per hour in certain brackets and 18
cents per hour in others was adroitly and strategically timed to impress upon the
employees that continued union adherence was a fruitless gesture, would bring them
naught, and they could rely upon their employers' unilateral generosity to attain
their needs. By such announcement, Respondents violated Section 8 (a) (1) of
the Act.21 This conclusion finds support in the fact that on June 6, Respondents ob-
tained all the necessary forms and the information regarding the mechanics for mak-
ing application for wage increases, but nothing was done with respect thereto until
knowledge of the employees' union activities became known to Respondents. Then,
the application forms were filled out and mailed to the proper authorities and the
employees informed that Respondents actually had sought permission to grant a
general wage increase. After those matters had been done, Respondents advised the
employees to give further consideration to whether they wanted to adhere to the
Union and to inform Respondents of their decision.
In addition, Lawrence Gilbert's statements, made at the June 19 meeting and re-
peated at the June 20 meeting, that if Respondents entered into a contract with the
Union, the employees covered thereby would work only 40 hours per week instead
of 45 hours, as in the past, were made solely, the Trial Examiner is convinced, and
finds, for the purpose of undermining the Union and stemming the tide of its or-
ganizational campaign and hence violative of the Act.22 This finding is supported
by the fact that there is no definite, credible evidence in the record that the Union
intended to demand at the bargaining table that Respondents enter into a contract
expressly prohibiting the employees from working more than 40 hours per week.
In fact, the record clearly indicates the contrary. According to Edwards' credited
testimony, he asked Kiser at the June 18 union meeting, "How many hours we would
18N L R B. v Jackson Press, Inc, 201 F 2d 541 (C A. 7) ; N L. R. B v. Alco Feed
Mills, 133 F 2d 419 (C. A 5) ; Joy Silk Mills v. N L R. B, supra N. L. R. B. v Minne-
sota Mining and Manufacturing Company, 179 F. 2d 323 (C A. 8).
19 See 1N. L R. B. v Fruehauf Trailer Co , 301 U. S 49; N. L. R B. v. Laister-Kauff-
man Aircraft Corp, supra; Montgomery Ward & Co. v. N L R. B., 115 F 2d 700 (C A.
8) ; N L R B. v Minnesota Mining and Manufacturing Co, supra; N L R B v. Vermont
American Furniture Corp, 182 F. 2d 842 (C. A 2) ; N. L. R B v. Collins & Aikman Corp,
146 F. 2d 454 (C. A. 4) ; N. L. R. B. v. Fairmount Creamery Co., 143 F. 2d 668 (C. A 10) ;
N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U S 752; N. L. R B. v Friedman-
Harry Marks Clothing Co., 301 U. S 58.
'ON. L. R. B. v. Collins it Aikman Corp, 146 F. 2d 454, 455 (C A. 4). In accord,
N. L. R. B. v. Grower-Shipper Vegetable Assn., 122 F, 2d 368 (C. A. 9) ; N. L. R. B. v.
Clark Bros. Co, Inc, 163 F 2d 373 (C. A. 2).
21 Cold Spring Granite Company, 101 NLRB 786; Paramount Textile Machinery Co, 97
NLRB 691; May Departlluent Stores Co. v. N. L. R. B., 326 U. S. 376; N. L. R B v. Crown
Can Co., 138 F 2d 263 (C A. 8) ; N. L. R. B. v. Mt Clemens Pottery Co, 147 F 2d 262
(C. A. 6) ; F. W. Woolworth Co. v. N. L. R B., 121 F. 2d 658 (C. A. 2) ; Rapid Roller Co.
v N. L R. B., 126 F. 2d 452 (C. A 7) ; Southern Colorado Power Co. v. N L. R. B., 111
F. 2d 539 (C. A. 10) ; N. L. R B v. Wytheville Knitting Mills, Inc, 175 F. 2d 238 (C. A. 3).
22 N. L R. B v. Crown Can Co , 138 F. 2d 263 (C. A. 8) ; N. L. R. B. v. Gate City Cot-
ton Mills, 167 F. 2d 647 (C. A. 5).
2090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work if we go under the Union" and Kiser replied, "I see no reason why you wouldn't
be working the same number of hours you are now working." 23
The record as a whole, moreover, leaves no doubt that Lawrence Gilbert's remarks
at the June 19 meeting had a coercive effect upon the employees. Even though he
had assured the employees at said meeting that whatever choice they made regard-
ing the Union would be acceptable to Respondents and his later assurances to
Edwards, which Edwards transmitted to the employees prior to their voting, that no
reprisals would be visited upon the employees regardless of the outcome of their
deliberations , some employees , nevertheless , expressed fear of losing their jobs or
of being subject to some other form of discrimination. The setting in which Gilbert
made the statements, when they are considered in relationship to whom they were
made, the surrounding circumstances, the related events, and the entire background
of Respondents' actions, leads to the conclusion that his remarks were part and parcel
of a general coercive pattern designed to destroy the employees' freedom of choice
of action . This conclusion becomes inescapable when consideration is given to Re-
spondents ' reasons, as stated in their brief , for calling said meeting , ( 1) "to point
out the overtime question raised by the Union contract," 24 (2) "to make sure all,
instead of only a few of the men, knew the true status of the wage request," 25 and
(3) "most important , to have the employees inform [Respondents ] of their desires
concerning the Union." 26 Upon the entire record in the case, the Trial Examiner
finds that the above-referred-to remarks of Lawrence Gilbert were violative of Sec-
tion 8 (a) (1) of the Act 27
Despite the fact that the employees followed Respondents' suggestion and dis-
cussed the question of representation among themselves and then decided by a vote
of 17 to 4 (4 or 5 employees not voting), to retain the Union as their bargaining
representative, Respondents, nevertheless, rejected the employees' decision and
decided that a secret ballot vote should be held because, according to Lawrence
Gilbert, two employees had informed Respondents that at the balloting "some hands
went up kind of slow , . . . somebody raised a hand and said , `Let's make it unani-
mous' . . . some of them didn't vote [and] it was hardly the type of an election that
would be considered legal."
Respondents further contend that they are not guilty of engaging in any unfair
labor practices because of their statements at the June 19 meeting and their partici-
pation in the June 20 secret balloting, and, as a sort of confession and avoidance,
plead that their conduct and remarks should be considered in the light of their ex-
pressed willingness to comply with the wishes of the majority of their employees
,concerning representation by the Union, their inexperience in the "technicalities of
the Act," and the lack of legal counsel on, or prior to, those occurrences. They
also urge that consideration be given to the fact that the June 19 meeting was called
pursuant to the suggestion of Bjore and the secret balloting conducted at the sug-
gestion of two other employees. These contentions, obviously, are untenable. The
contention that Respondents did not violate the Act because their actions were
prompted by, and at the suggestion of, some employees cannot be accepted, for it
was well known to Respondents, prior to the calling and holding of said meeting,
that the Union had been designated the collective-bargaining representative by the
majority of the employees. It therefore follows that the assigned "most important"
as There is some unconvincing, conclusory testimony given by some employees that at
some other nearby plants the Union has contracts restricting the workweek to 40 hours.
Granted that the Union did enter into such contracts with other employers, the fact re-
mains that all that the Union did in those instances was to agree that the employees could
not work beyond 40 hours per week Such agreements by the Union, arising as they do,
out of give-and-take of collective bargaining, may, for aught this record shows, represent
concessions made by it in exchange for the employers' agreement on other vital terms of
the contracts which the Union deemed important May Department Stores Company, 59
NLRB 976, enfd. as mod. 154 F 2d 533 (C A 8).
14 It is to be noted that the Union at no time presented a contract to Respondents.
2 As far as the record discloses only three employees had any prior information that
Respondents were considering a wage increase They, however, did not know when the
increase would become effective nor the amount thereof.
26 Lawrence Gilbert already had been informed that the majority of the employees had
-executed union membership application cards.
sv See N. L. R. B. v. Link-Belt Co , 311 U S 584; N L. R. B. v. Virginia Electric &
Power Co., 314 U. S 469; N L R. B v. Kropp Forge Co, 178 F. 2d 822 (C. A. 7) ;
N L R. B v. Ford Bros, 170 F. 2d 735 (C A 6) ; N L. R B. v Winona Textile Mills,
160 F. 2d 201 (C. A. 8) ; N. L R. B. v. Federbush Co, 121 F. 2d 954 (C A. 2).
A. L. GILBERT COMPANY 2091
reason for calling said meeting could not have been "to have the employees inform
[Respondents] of their desires concerning the Union." The Trial Examiner finds
that (1) said meeting was called solely for the purpose of inducing the employees to
repudiate the Union as their bargaining representative and (2) Lawrence Gilbert's
remarks thereat transgressed the bounds of permissible conduct.
The further contention that because the meeting of June 19 and the secret bal-
loting of June 20 were held at the specific suggestions of some employees, it may
not properly be found that Respondents, by engaging in such activity, violated the
Act is also without merit. Passing upon a similar situation, the Supreme Court in
Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678, held that the employer
there "was not relieved from its obligations because the employees asked that they
be disregarded. The statute was enacted in the public interest for the protection
of the employees' right to collective bargaining and it may not be ignored by the
employer, even though the employees consent, N. L. R. B. v. Newport News Ship-
building & Dry Dock Co., 308 U. S. 241, 251, or the employees suggested the conduct
found to be an unfair labor practice, National Licorice Co. v. N. L. R. B., 309 U. S.
350, 353, at least where the employer is in a position to secure any advantage from
these practices, H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 519, 521, and cases
cited." 28 Under the circumstances of this case, the Trial Examiner finds that
Respondents' conduct at the June 19 meeting and its participation in the June 20
secret balloting were violative of Section 8 (a) (1) of the Act. In the latter instance,
,moreover, even though Lawrence Gilbert was informed that some employees had
stated that the secret balloting should not be held, he nonetheless suggested that
the employees vote secretly in order to ascertain if the majority present at said
meeting "wanted to ballot on the union question." As a result of that secret vote,
the employees proceeded with the secret balloting.29 One of the vices of Respond-
ents' June 20 actions is that they abrogated to themselves what should be the proper
function of the Board in conducting secret-ballot elections.30
As found above, the Union, through Kiser, on June 23 requested Respondents
to recognize it and to bargain collectively, and offered to submit signed membership
application cards to Respondents for a comparison against Respondents' payroll in
order to establish its majority status. Respondents refused to recognize the Union
upon the basis of a card check, and insisted that nothing but an election would satisfy
them as to the Union's majority status. This the Union rejected because of Re-
spondents ' intervening and unremedied unfair labor practices.
Respondents' position with respect to their refusal to recognize and bargain
collectively with the Union was that it doubted the Union's majority status and
based its opinion mainly upon the fact that shortly before Kiser and his associates
arrived at Respondents' plant, Fisk presented Respondents with a petition, signed
by a majority of the employees in the appropriate unit, requesting that the balloting
of June 20 be ignored and another balloting be held.31
The uncontroverted credible evidence establishes that on June 23, when Kiser
requested Respondents to recognize the Union and to deal with it on behalf of the
employees in the appropriate unit, the Union, in fact, was the designated collective-
bargaining representative of the majority of said employees. The fact that Re-
spondents knew of the Union's majority status is not open to dispute. Under the
circumstances, Respondents were under a statutory duty to recognize the Union
as the exclusive representative of the employees in the appropriate unit and to deal
with it as such representative. Under the circumstances, Respondents' refusal to
recognize and deal with the Union was a clear violation of Section 8 (a) (5) of
the Act, unless Respondents at that time had a bona fide doubt that the Union
represented a majority.
Respondents' conduct and activities, as epitomized above, following the Union's
June 18 meeting reveal Respondents ' want of good faith . The fact that Respondents,
28 The statute under consideration in the above cases was the Wagner Act. However,
the same congressional intent with respect to free and untrammeled right to self-organl-
zation and to collective bargaining appears in the amended Act and therefore the cited
cases are apposite here.
20 The fact that the box containing the ballots was burned prior to the ballots being
counted does not exculpate Respondents from their unlawful intrusions upon their em-
ployees' rights under the Act.
90 See E. H. Sargent & Co., 99 NLRB 1318; cf. Midwest Piping & Supply Co., Inc., 63
NLRB 1060.
31 Lawrence Gilbert said some other factors also compelled him to refuse Kiser's request
to recognize and deal with the Union. Gilbert, however, did not enumerate those factors.
2092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon being advised that the majority of the employees had signed union membership
application cards, immediately embarked upon a campaign to destroy employee
support for the Union through means proscribed by the Act clearly demonstrates-
that their refusal to bargain and their request for an election were not based upon
any desire to resolve a bona fide doubt of the Union's majority. Normally, the
Board does not hold an employer in violation of the Act if he in good faith questions
the union 's majority status, and asks to have the matter determined in an election,
since that is a conclusive means of establishing the extent of a union 's strength.
But here Respondents , upon learning of the Union's majority status, immediately
resorted to serious unfair labor practices , the effect of which would have prevented
the election from resolving the issue to which Respondents were allegedly in doubt.
Respondents thereby destroyed the efficacy of the very method it had insisted upon
by its refusal to recognize and deal with the Union . Respondents ' conduct on June
23 thus clearly supports a finding that their demand for an election was, in fact,
a rejection of the principles of collective bargaining . Under these circumstances,
Respondents "transgressed the bounds of permissible conduct to a sufficient extent
to warrant a conclusion that their refusal to bargain was as ill-intentioned as [their]
other actions." 32
The courts , furthermore , have uniformly held where , as here, an employer with-
holds recognition from a union which is entitled to it under the Act until its status
is established in an election , and at the same time proceeds to undermine and destroy
the union , it may be reasonably concluded that the employer 's refusal to bargain
stems not from an honest doubt of the union 's status but rather from a desire to.
avoid his obligations under the Act.33
Respondents' further contention that their refusal to bargain did not violate the
Act since they merely exercised their right to demand an election and that their
employees also considered that they, too, were entitled to an election , is without
merit under the circumstances herein disclosed. It is well established that neither
an employer nor his employees have the right to demand an election for the Con-
gress left to the Board the discretion to determine how and when the bargaining.
status of an employee representative should be ascertained 34 In N. L. R. B. v.
Samuel J. Kobritz d/b/a Star Beef Company, 201 F. 2d 156, the First Circuit said
regarding a case very similar to the instant proceeding:
. the right of employees to bargain collectively through an exclusive bar-
gaining representative is not conditioned upon an antecedent certification by the
Board where, as here, the majority status of the union is clearly established
otherwise , and the employer has no bona fide doubt of such majority status, but
seeeks to delay bargaining negotiations while resorting to various coercive tac-
tics designed to dissipate the union's majority support. N. L. R. B. v. Reed &
Prince Mfg. Co, 118 F. 2d 874, cert. denied 313 U. S. 595; N. L. R. B. v.
National Seal Corp., 127 F. 2d 776; N. L. R. B. v. Franks Bros. Co., 137 F.
2d 989, affd. 321 U. S. 702; N. L. R. B. v. Harris-Woodson Co., 162 F. 2d
97 (C. A. 4).35
Furthermore , had the Board been requested or petitioned to hold the suggested
election, it obviously would not have been compelled to do so if it had reason to
believe that the results thereof would not have reflected the employees' free choice,
and thus permit Respondents to benefit by their own wrongdoing. Moreover, had
the Board held the suggested election and subsequently , but timely , learned of Re-
spondents ' unfair labor practices , it would have been free to set aside the results
of the election.
Joy Silk Mills, Inc. v. N L. R. B., supra See also Franks Bros . Co. v N. L. R B ,
321 U. S. 702 ; N. L. it. B. v. Federbush Co., Inc, supra ; N L. R. B. v. Louisville Refining'
Co., 102 F. 2d 678 (C. A. 6).
13 N. L. R. B. v. Consolidated Machine Tool Corp, 163 F . 2d 376 ( C. A 2) ; N. L. R. B.
v. Dahlstrom Tool Metallic Door Co, 112 F. 2d 756 ( C. A. 2) ; N. L. R, B. v . Everett Van
Kleeck Co., Inc., 189 F. 2d 516 (C A. 2) ; Joy Silk Mills, Inc, supra; N L. R B. v. Chi-
cago Apparatus Co., 116 F. 2d 753 (C. A. 7) ; N. L. R. B. v. Morris P. Kirk & Son, 151
F. 2d 490 (C. A. 9).
34 N. L. R. B. v. Falk Corp., 308 U. S. 453; N. L R. B. v. Waterman Steamship Corp,
309 U. S 206 ; Southern Steamship Co. v. N. L. R. B., 316 U. S. 31; N. L. R. B . v. Gar-
funkel, 126 F. 2d 256 (C A. 2).
35 See also N L. R. B. v. Bradford Dyeing Assn ., 310 U. S. 318 ; International Assn. of
Machinists v. N L. R. B., 311 U. S . 72; D. H. Holmes Company, Ltd, v. N. L R. B., 179
F. 2d 876 (C. A. 5).
A. L. GILBERT COMPANY 2093
Respondents also argue that because the Union refused their request, made on or
about June 28, for a written demand for recognition, the Union did not make a suffi-
cient request for recognition and hence Respondents were excused from recognizing
the Union as the collective-bargaining representative of the employees here involved.
This contention is without substance. It is well settled that the condition prece-
dent to the employer's obligation to bargain with the majority representative of
his employees is that it request recognition as such. But there are no words of art
which must be invoked to fulfill the requirement of a request. 36 In this, as in other
situations, "Lawyers' formulae, formalities, words are not needed." 37 All that is
required to put the employer in default is that the bargaining representative must
at least have clearly signified to the employer its desire to negotiate. Measured by
this criterion the requirement of a request to bargain was amply met in this case.
Upon the record as a whole, the Trial Examiner finds that on June 23, 1952, and
at all times thereafter, Respondents, in violation of Section 8 (5) of the Act, failed
and refused to bargain collectively with the Union as the duly designated representa-
tive of the majority of the employees in the unit hereinabove found appropriate,
thereby interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C. The alleged violation of Section 8 (a) (3) of the Act
The complaint alleged that Louis Parker, Roy Fitzgerald, and Gordon Leydecker
were discriminatorily discharged on July 7; that Respondents reinstated said em-
ployees on July 8, but did so only because the Union had placed a picket line at
Respondents' establishment in protest against such discharges, that Respondents dis-
criminatorily discharged Leydecker on July 11 and Harvey Dickerson on August 4,
and thereafter discriminatorily refused to reinstate either of them. Respondents'
answer denied these allegations.
With respect to the alleged discharges of July 7, the credible evidence discloses
that: On July 3 the Union placed a picket line at Respondents' plant and most of
the employees respected it that day and did not report for work; the plant was closed
the following day because it was a legal holiday; on July 5 about 15 or 16 em-
ployees, including Edwin Post, ignored the picket line and reported for work; the
pickets ceased picketing at about 10 or 10:30 that morning; later in the day, Law-
rence Gilbert asked Post, who Respondents knew was a union adherent and who
had just completed a year's service in Respondents' employ, whether Post wanted
to take the 1-week vacation due him at that time, to which Post replied that he
would think the matter over; about 10 o'clock the same morning Leydecker went
to the plant, saw Lawrence Gilbert, and Gilbert asked Leydecker whether he was
ready to return to work; and when Leydecker said he was, Leydecker arranged with
Gilbert to report for work that afternoon at 1 o'clock.
Shortly after Leydecker, Parker, Fitzgerald, and Post reported for work on July
7, they were told to go to Lawrence Gilbert's office. Gilbert conferred with Post
and Leydecker individually, and jointly with Parker and Fitzgerald. Gilbert asked 18
Post, the employee with whom he conferred first, whether he knew if the picket line
was going to remain and Post replied that he did not know. Post then informed
Gilbert that he had decided to take his week's vacation, which announcement was
satisfactory to Gilbert. When Gilbert conferred with Fitzgerald and Parker, the
,only two employees Gilbert had not seen since the commencement of the strike, he
asked them how they felt about crossing the picket line and Parker replied that he
was a union man and would not cross it. Gilbert then asked Parker and Fitzgerald
to contact the Union and ascertain whether it intended to reestablish the picket line
at Respondents' plant. In reply to Gilbert's suggestion, Parker said, "Do you mean
we better look for another job?" and Gilbert stated, "Well, if you want to look,
Louie, but we just want to have this thing 39 straightened out here. What you do
is entirely up to you. But why don't you go see if you can find out what is going
38 McQuey-Norris Mfg. Co. v. N. L. R. B., 116 F. 2d 748 (C. A. 7).
37 Lebanon Steel Foundry Co. v. N. L. R. B., 130 F. 2d 404, 407; Joy Silk Mills, Inc.,
supra.
sa
The findings with respect to these conferences are based upon Gilbert's credible testi-
mony. Said employees' versions of what was said during their conferences with Gilbert
are at variance with that of Gilbert. The Trial Examiner finds, however, that Gilbert's
account is more reliable.
89 Whether or not Parker and Post would cross the Union's picket line if it were
reestablished.
2094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on, and let me know." Parker and Fitzgerald left Gilbert's office after agreeing to
Gilbert's suggestion.
Regarding the Gilbert-Leydecker interview, the credible evidence reveals that the
latter was called to Gilbert's office on July 7 because on July 5 Leydecker had told
Gilbert that he was fearful that he might get into trouble with the Union if he
crossed the picket line for he had some trouble previously with the Union and as the
result thereof he was blackballed for a couple of years. After Leydecker said he
would ascertain what the facts were about the reestablishment of the picket line,
Leydecker left Gilbert's office.
Upon leaving Gilbert's office, the said employees proceeded to Fitzgerald's home,
located near the plant, and telephoned Alfred Anderson, the Union's assistant busi-
ness representative, to come there. When Anderson arrived at Fitzgerald's home,
he was informed that Fitzgerald, Leydecker, and Parker had been discharged by
Lawrence Gilbert that morning. After some discussion about that matter and some
talk about which one of the 3 alleged dischargees would picket Respondents' estab-
lishment, which job Leydecker accepted, Anderson and the 3 alleged dischargees
returned to the plant. While Anderson and the 3 employees were sitting in an
automobile in front of the plant, Robert Gilbert, one of the Respondents, came
over to them and asked Parker when he was going to return to work. Parker then
informed Robert Gilbert that his brother, Lawrence, told him to seek employment
elsewhere. Robert Gilbert then sent for his brother Lawrence and when the latter
arrived Robert Gilbert asked him whether Parker had been discharged. Lawrence
Gilbert replied that Parker undoubtedly misconstrued his remarks because he did
not discharge Parker. After some further discussion between Anderson and said
employees, some of which took place in the presence of Lawrence and Robert
Gilbert, the three alleged dischargees decided to return to work the following day.
The Trial Examiner is convinced, and finds, contrary to the General Counsel's
contention, that Fitzgerald, Leydecker, and Parker misconstrued the meaning of
Lawrence Gilbert's remarks. The Trial Examiner further finds that Lawrence Gil-
bert did not inform Leydecker, Fitzgerald, or Parker that they should seek other
employment or, in the alternative, take their respective vacations or go on leaves
of absence, as said employees testified that Lawrence Gilbert had advised them to
do. Accordingly, the Trial Examiner recommends that the allegations of the
complaint with respect to the July 7, 1952, incident be dismissed.
Harvey Dickerson was first employed by Respondents on or about December 30,
1951, on a part-time basis. Several days thereafter, William Gilbert asked Dickerson
if he wanted steady employment. Dickerson replied that he would accept such
employment provided he would be permitted to take a vacation for about a month
or 6 weeks commencing the following June or July. Upon receiving William Gil-
bert's assurance that the request would be allowed, Dickerson accepted steady
employment.
Dickerson attended the Union's June 18 meeting and there signed a membership
application card.
About a week before July 1, Dickerson said to William Gilbert that he had
planned to leave on a vacation on July 1, unless he was needed at the plant, in
which event he would leave sometime during August. Gilbert replied that as long
as Dickerson had planned to take his vacation commencing July 1, he may as well
take it then.
Dickerson left on his vacation on July 1, without advising Respondents when he
would return. He returned on July 28. However, he did not report for work until
August 4. On the latter date, he informed William Gilbert that he was ready to
commence work. Gilbert advised him to see Lawrence Gilbert. When Dickerson
asked Lawrence Gilbert for work, the latter stated that during Dickerson's absence
Respondents had hired some additional employees and therefore there was no job
available for Dickerson at that time. Lawrence Gilbert, however, assured Dickerson
that as soon as a job became available for which Dickerson was qualified he would
be recalled.
Several weeks after August 4, Dickerson took Leydecker's place on the picket line
and picketed for about 6 weeks. At this time Lawrence and William Gilbert came
to his home and offered him employment, and he accepted the offer. At the time of
the hearing Dickerson was still in Respondents' employ.
The credible evidence reveals that at the time Dickerson took his vacation Respond-
ents were starting their busy season and therefore they had to hire additional em-
ployees, including a person to replace Dickerson, to cope with the situation, and
when Dickerson returned Respondents were adverse to lay off any of the new
employees to make room for Dickerson, especially since Dickerson owned a ranch
from which he received an income.
A. L. GILBERT COMPANY 2095,
Upon the entire record in the case, the Trial Examiner finds that Dickerson was
not refused employment on August 4 for the reasons alleged in the complaint.
Accordingly , the Trial Examiner recommends that the allegations of the complaint
with respect to Dickerson be dismissed.
Gordon Leydecker was first employed by Respondents on June 10, 1952. He,
had become a member of the Union during one of his previous periods of employ-
ment. At the Union 's June 18 meeting , he signed a membership application card.
As found above , Leydecker , on July 5, told Lawrence Gilbert that he was con-
cerned about crossing the Union 's picket line because he had a previous unpleasant
experience with the Union due, undoubtedly , to some infraction of the Union's
regulations or policies . Nevertheless , Leydecker worked at the plant that day and
reported for work on the following Monday morning , July 7. As related above,
Leydecker and Lawrence Gilbert again discussed the former's predicament and as a
result of such conversation Leydecker came to the erroneous conclusion that Gilbert
would not allow him to work because of his union membership and activities. After
a discussion between Anderson , Lawrence and Robert Gilbert, Parker, Fitzgerald,
and Leydecker , the matter of the misunderstanding was clarified and Anderson
advised Leydecker, Parker, and Fitzgerald to return to work.
The following day, July 8, the above-named three employees returned to their
respective jobs. A day or two later, Leydecker informed Lawrence Gilbert that
Anderson had said if he (Leydecker ) "valued his [ union dues ] book he had better
get the hell out of" the plant. Thereupon , Gilbert advised Leydecker , to quote from
Gilbert's credible testimony , to "get ahold of Andy (Anderson ) and find out"
whether or not Leydecker should cross the picket line.
On Friday, July 11, Gilbert handed Leydecker his pay check and again they
discussed Leydecker 's union situation and the possibility of Leydecker obtaining
employment at a local cannery which was about to reopen . During the course of
that conversation, Gilbert asked Leydecker, "Why do you think [the Union] is after
you" to which Leydecker replied, "I think they want me to" picket the plant.
Gilbert then asked why the Union should select him to do picket duty. Leydecker
replied, again to quote Gilbert , "Louis [Parker ] doesn 't want to picket, and Roy
[Fitzgerald ] doesn't want to picket . But I will go through with it. I will picket
if I have to ." Before the close of the conversation , Leydecker stated that he would
attempt to obtain employment at said cannery.
About 2 o'clock in the afternoon of the following Tuesday, July 15, Leydecker
went to Respondents ' offices and informed Lawrence Gilbert that he could not
obtain employment at the cannery for about a week or 10 days and then asked
whether Gilbert could give him employment until then . Gilbert advised Leydecker
to return the following morning and in the interim he would ascertain whether
there was a job available . Instead of ascertaining on July 16 whether there was
work for him at the plant, and the credible evidence shows there was, Leydecker
went on the picket line and retained that job for about 5 weeks.
Leydecker admitted while on the witness stand that just as he was about to com-
mence picketing on July 15, Robert Gilbert asked him where he had been the
previous day, and he replied that he was around the plant for about 21/a hours
"talking to the fellows." Robert Gilbert then said , "I was looking for you all,
day yesterday to go to work," and he replied , "Well, you could not have been,
because I was around here all day yesterday , or part of the day."
Upon the above recital of the facts and upon the record as a whole, the Trial
Examiner finds that Respondents did not discharge Gordon Leydecker on July 11,
or at any time material herein refuse Leydecker employment for the reasons alleged
in the complaint . This finding is buttressed by the credible testimony of John
Sansing, who testified that on July 8 or 9, Leydecker told him , "I guess I am into it
with the Union," and when he asked the reason therefor , Leydecker stated , "Well,
they told me if I valued my book that I had better get the hell out of here, working
behind the picket line." Accordingly, the Trial Examiner will recommend that the
allegations of the complaint with respect to Gordon Leydecker be dismissed.
D. The other alleged violation of Section 8 (a) (1)
The complaint alleged that for the purpose of discouraging membership and
activities in behalf of the Union , Respondents , in violation of Section 8 (a) (1),
requested an employee to exert his influence over his fellow employees. The
record fails to disclose any evidence whatsoever in support of this allegation.
Accordingly , the Trial Examiner recommends that the aforesaid allegations of the-
complaint be dismissed.
2096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operations of Respondents described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the free flow
,of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices violative
.of Section 8 (a) (1) and (5) of the Act, it will be recommended that they cease
and desist therefrom and take certain affrmative action designed to effectuate the
policies of the Act.
Having found that Respondents on June 23, 1952, and at all times thereafter,
have refused to bargain collectively with the Union as the representative of a
majority of the employees in an appropriate unit, the Trial Examiner will recom-
mend that Respondents, upon request, bargain collectively with the Union as the
.exclusive representative of all employees in the unit heretofore found appropriate
and, if an agreement is reached, embody such understanding in a signed agreement.
The unfair labor practices found to have been engaged in by Respondents are
,of such a character and scope that in order to insure the employees here involved
their full rights guaranteed by the Act it will be recommended that Respondents
cease and desist from in any manner interfering with, restraining, and coercing
their employees in their right to self-organization.
Upon the basis of the foregoing findings of fact and upon the record as a whole,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, affiliated with
American Federation of Labor, is a labor organization within the meaning of Section
2 (5) of the Act.
2. All Respondents' production and maintenance employees excluding office em-
ployees, and supervisors as defined in the Act, constitute, and during all times mate-
rial herein constituted, a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, affiliated with
American Federation of Labor, was on June 18, 1952, and at all times thereafter
-has been, and still is, the exclusive representative of all the employees in the above-
,described appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By refusing on June 23, 1952, and at all times thereafter, to bargain collectively
with the Union as the exclusive representative of all the employees in the appropriate,,
unit, Respondents have engaged in and are engaging in unfair labor practices within
-the meaning of Section 8 (a) (5) of the Act.
5. By interrogating their employees regarding their union activities and sympa-
thies and regarding the union activities and sympathies of other employees, by advis-
ing their employees that by adhering to the Union they would thereby work a shorter
workweek, by announcing that an application had been made to the Wage Stabiliza-
tion Board for permission to raise wages when Respondents were aware of the Union's
majority status, and thereafter putting into effect the approved wage increase, in order
-to induce their employees to forsake the Union, thereby interfering with, restraining,
and coercing said employees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondents have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
7. Respondents did not discriminate with regard to the hire or tenure of employ-
ment of Louis Parker, Roy Fitzgerald, Gordon Leydecker, or Harvey Dickerson, or
with the terms and conditions of their employment, nor did they request any em-
ployee to exert his influence to discourage union activity or membership among his
fellow employees.
[Recommendations omitted from publication.]