Arcoa Corp.

National Labor Relations Board - Board Decisions

Dec 12, 1969

180 N.L.R.B. 1 (N.L.R.B. 1969)

ARCOA CORPORATION
Arcoa Corporation and International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Local No. 20.Case 8-CA-5181
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
December 12, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 14, 1969, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed as to them. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
The Respondent filed cross-exceptions, and a brief
in support thereof combined with an answering brief
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions,- and briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Arcoa
Corporation, Toledo, Ohio, its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
in adopting the conclusion of the Trial Examiner that the Respondent
did not refuse to bargain in violation of Section 8(a)(5) of the Act, we do
not rely on his comments regarding the Employer ' s good- faith doubt
When determining whether a bargaining order is warranted , the Board now
applies the standards enunciated by the Supreme Court in N L R B v
Gissel Packing Company . 395 U S 575 Applying those standards to the
circumstances of this case, we believe that neither a finding of a refusal to
bargain nor a bargaining order is warranted
GEORGE J BOTT, Trial Examiner Upon a charge of
unfair labor practices filed by the Union on October 14,
1968, against Arcoa Corporation, herein called
Respondent or Company, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing dated November 29, 1968, in which he
alleged that Respondent had violated Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended,
herein called the Act Respondent filed an answer, and a
hearing was held before me in Toledo, Ohio, on December
19 and 20, 1968, at which all parties were represented.
Subsequent to the hearing, Respondent and General
Counsel filed briefs which have been carefully considered
Upon the entire record' in the case and from my
observation of the witnesses, I make the following.
FINDINGS OF FACT
I. THE COMPANY'S BUSINESS
Respondent, an Ohio corporation, has its place of
business in Toledo, Ohio, where it is engaged in the
manufacture of chemical products for the foundry
industry. Annually, Respondent ships from its Toledo
plant goods valued in excess of $50,000 to points outside
the State of Ohio Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
iii. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
There were 14 employees in the bargaining unit on
September 23, and by September 20, all but 3 had signed
authorization cards designating the Union as their
representative for the purposes of collective bargaining '
On September 20, a union meeting was held, which was
attended by eight employees, including employee House,
who had solicited the signatures. House turned the cards
he had obtained over to the Union at this meeting
On September 23, 1968, Union Representatives
Shumaker and Cassidy handed Grimm, Respondent's
president, a letter requesting recognition and bargaining
Shumaker and Cassidy did not testify, but it appears from
Grimm's testimony that Shumaker had some cards in his
hand and asked Grimm if he wanted to inspect them, but
Grimm declined Grimm read the Union's letter and
decided that he needed legal advice He did not recognize
the Union
A second union meeting, attended by eight employees
and addressed by Case, the Union's director of
organization, was held on September 30 After noting that
the Union represented a majority of employees, but that
'Respondent ' s unopposed motion to correct the transcript is hereby
granted I also correct p 97, I 21, by striking the word "cross" and
substituting the phrase "voire dire" before the word "examination "
'Employee Wheatley signed his card on October 1, 1968 Forris Adams
and John Cooper never signed authorization cards Mederski, who signed a
card on September 19, did not appear on the September 23 payroll, since
his last day of work was September 20
180 NLRB No. 5
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent wanted the Union to file an election petition
with the Board to resolve the question, Case suggested
that a picket line would resolve the issue quicker. A secret
ballot strike vote was taken and all eight employees
authorized the Union to call a strike.
Shortly after the Union's visit on September 23,
Grimm retained Attorney Gallagher who immediately
contacted Shumaker. Gallagher suggested that Shumaker
file a petition for certification of representatives with the
Board, and assured him that the Company would agree to
"enter into a stipulation for a consent election without
delay." In another telephone conversation with Shumaker
on Friday, September 27, Gallagher offered to have the
Company file a petition for certification with the Board,
but Shumaker rejected this, and stated that he would file
a petition "the first of the following week."
On September 30, 1968, Gallagher wrote Reagan, the
Union's secretary-treasurer, formally acknowledging the
Union's September 23 request for recognition delivered by
Cassidy and Shumaker. Gallagher reviewed his
conversations with Shumaker and repeated that a consent
election agreement under Board auspices could be
arranged "at an early date."'
On October 1, Union Representative Case telephoned
Gallagher and told him that the Union did not intend to
file a representation petition with the Board. Case
proposed that the Company agree to have the Union's
authorization cards checked by a neutral person as a
means of resolving the representation question. Gallagher
indicated that a card check was not desirable, and Case
commented that if that method were not acceptable then
the Union "would pursue other paths."'
On October 10, the Union took the other path, and
placed eight pickets from the Union's staff in front of
Respondent's plant at 6:30 in the morning. Four or five of
Respondent's employees also actually picketed and carried
signs, and the rest of Respondent's employees did not
cross the picket line and enter the plant, and can be
considered to have been on strike. Sometime around 8
a.m. Gottschalk, Respondent's vice president, spoke with
the employees outside the plant and told each one that his
job "was available and waiting for him "5 Apparently, no
one accepted this invitation at the time.
By approximately 9:30 a.m. Grimm had decided to
recognize the Union. He called Gallagher and told him
that all the employees were on strike and appeared to
want union representation. Grimm instructed Gallagher to
do what was needed to get the pickets removed, the men
back to work and a recognition agreement signed.
Gallagher immediately called Reagan at the Teamsters'
office and told him that the Company had decided to
recognize the Union. Reagan telephoned Case at the
picket line, gave him the message, and told him to put the
men back to work and report to Gallagher's office. Case
'Gallagher did not testify , but it was stipulated that, if called , he would
testify in accord with the contents of a letter he wrote the Board on
November 12, 1968. The above findings are based upon Gallagher's letter
to the Board and on his September 30 letter to Reagan, the contents of
which are uncontradicted As noted earlier , neither Cassidy nor Shumaker
testified.
'There is no reference to this conversation with Case in Gallagher's
November 12 letter to the Board, but the findings are in accord with
Case ' s credible and uncontradicted testimony.
'No employee testified about what Gottschalk said to them Case said
Gottschalk "urged" the employees to return to work, but Grimm said that
Gottschalk told the employees that they "were free to return to work " In
any case , Gottschalk 's remarks are of no particular value in resolving the
main issue in this case.
informed the employees that the Union had been
recognized by the Company, and instructed them to return
to work. He explained that he would have a recognition
agreement signed and arrange a meeting with employees
later to formulate contract demands. Case and Cassidy
then left for Gallagher's office, arriving there
approximately 45 minutes later.
Before Case and Cassidy reached Gallagher's office,
Gallagher had been telephoned by Grimm who told him
that because the Company was now satisfied that the
employees did not want union representation, his
instructions and authorization to sign a recognition
agreement were withdrawn. Gallagher accepted Grimm's
instructions, but advised him that he would have to
withdraw as counsel, which he did. In a second
conversation with Gallagher a few minutes later,
apparently suggested by Gallagher so that Case and
Cassidy could be present when it occurred, Grimm
repeated his advice and instructions, and suggested that
the union representatives return to the plant and talk with
the employees. Case and Cassidy were now present in
Gallagher's office. Gallagher gave them Grimm's message,
and they immediately started for the Company's plant.
The Union's representatives got back to the plant
around 11 a.m., and met with the employees in the
parking lot with Grimm's consent shortly thereafter. Case
told the employees what he had just learned, and promised
them that if they "stayed with us" the Union would see to
it that Respondent signed a union recognition agreement
in their presence there in the parking lot. He said that the
"essence" of his conversation with the men was giving
them a choice of staying out of the plant, if they desired
union representation, or going in, if they did not. He said,
after he finished talking, five employees remained with
him in the parking lot and the rest returned to work.,
Within 10 minutes, with Company permission, Case
again spoke with the employees outside the plant and
made essentially the same proposition. When this time all
but three of the men went back into the plant, Case
advised the remaining three to leave too. Case then told
Grimm not to discriminate against any employee who had
favored the Union, and Grimm agreed that he would not.
All this happened before noon on October 10. Case and
Cassidy left the area, and there was no picketing for the
rest of that day. On the following morning, the Union
reestablished a picket line, manned by Cassidy and Case,
not by employees. A few days later, two employees joined
the strike, and the Union has continued to demand
recognition.
On the afternoon of October 10, after the pickets were
withdrawn and Case had left the area, Grimm announced
to all employees that they were to receive wage increases,
ranging from 15 to 70 cents per hour, effective
retroactively to October 3.
Obviously something had happened between the time
Grimm decided to recognize the Union, and told
Gallagher so, and his revocation of Gallagher's authority,
not more than an hour later. Grimm told Gallagher in his
second telephone call that he had learned that the
employees did not want the Union to represent them, and
Case testified that Gallagher told him that Grimm had
"polled" the employees and found out that only one
wanted union representation. It is clear that after the
employees went into the plant when Case and Cassidy left
for Gallagher's office, Grimm and the employees
communicated with each other, and Grimm was told by
'There were 16 employees in the unit on October 10.
ARCOA CORPORATION
most of them that they did not want the Union, but there
is some minor dispute about the circumstances under
which he received this information.
Grimm testified that while he and other officers of
Respondent were sitting in his office, after Case and
Cassidy left for Gallagher's office, discussing what had
just transpired, he realized that the plant machinery was
not running He entered the plant area to find out what
was going on and found that the employees had not
changed into their work clothes, but were gathered in a
group. He said he urged the men to start working because
he had recognized the Union, but one of the employees
replied, "We don't want the Union." Grimm pointed out
that the men had been "out there on the picket line," but
someone repeated that they did not want to join the
Union Grimm looked at another employee for
confirmation, and he, too, indicated agreement with the
speaker At that point, according to Grimm, he "went
around and asked the other men how they felt about it,
and the consensus of opinion was the same, they did not
want the Union, with the exception of two or three of
them who were there that said, `Yes, they were for the
Union' " On the basis of this information, Grimm
telephoned Gallagher and revoked his authority to sign the
recognition agreement.
Employee Hopings also testified about Grimm's
meeting with employees which he said took place in a
storage area. After the pickets had been withdrawn that
morning, he returned to his fob in the laboratory. Asked
how he found out about the meeting, he replied, "I think
one of the guys came back and said Mr. Grimm would
like to see us all." When he reached the storeroom, he
found the other employees already assembled, as well as
Grimm and his associates in the business, Gottschalk and
Schwetz Hopings said Grimm announced that he wanted
to know whether the employees were for or against the
Union and stated that he would "ask each one of you
individually and tell me what you think." Grimm then
"polled" each man, according to Hopings, by calling out
his name and asking, "Do you want the Union or don't
you." Hopings said that there were "I I against and 3 for"
the Union when Grimm had completed his count.
Employee Nottage signed a union card, but he said he
had changed his mind about the Union before the strike
on October 10, and did not want it to represent him. His
version of the meeting in the storage area with Grimm is
slightly different from the others, but adds little. He said
the men were gathered in a circle and Grimm asked those
who desired the Union "to stay in, ones that don't want,
fall back out." Grimm then counted the divided
employees, and it appeared that eight or nine did not want
the Union Nottage added that nothing was said by
Grimm, Gottschalk or Schwetz while they were assembled
that caused him to change his mind about the Union
Specifically, they promised him nothing, he said.
The only other reference to the plant meeting is in the
testimony of employee Noble, who had also signed a
union card. Noble said he changed his mind about the
Union soon after he signed the authorization card, but he
also said that he was for the Union on the day the strike
took place. However, he added that, when the employees
entered the plant after recognition was granted, "We saw
we didn't want it, therefore we told him we didn't want
the Union." Nine or ten other employees were present at
this time, Noble said, and some of them also told Grimm
that they did not want the Union. Up to the time he
expressed his changed view, the Company had promised
him nothing.'
3
I find that Grimm's version of the employee meeting in
the plant at which he was told by a majority of employees
that they did not favor the Union, is essentially correct
The Grimm version is basically like the employee account,
and where his account contains facts not found in theirs,
as for example, employees being gathered in a group, not
working, and volunteering that some of them did not want
the Union, even before he questioned them, these added
facts are uncontradicted Hopings' version that he was
summoned to the meeting by another employee is really
not inconsistent with Grimm's story, for Hopings found
all the other employees gathered when he arrived, and no
other employee said that the meeting was arranged by
Grimm Hopings, of course, could not know, and did not
say what any employee had told Grimm before Hopings
arrived
B. Analysis, Additional Findings, and Conclusions
1. The refusal to bargain
As General Counsel correctly states, no question can be
raised about the Union's majority status in the
appropriate unit as of September 23, and continuing to
October 10, 1968, for the cards, signed by an
overwhelming majority of employees, clearly designate the
Union as bargaining representative, and all cards were
properly authenticated It is also true that a picket line,
which all employees honored, was established on October
10, in a further attempt to secure the recognition which
the Company had refused the Union when it made its
demand on September 23. On October 10, Respondent
recognized the Union, apparently conceding that it had
the support of a majority of employees It was at this
point, according to General Counsel's contentions, that
Respondent embarked on a course of conduct designated
to dissipate the Union's majority by conducting an illegal
poll and then improperly announcing a retroactive wage
increase. General Counsel maintains that if Respondent is
found to have committed any one of three acts on
November 10, namely, the poll, the wage increase or
withdrawal of recognition shortly after having seen a
majority of employees supporting the strike, then
Respondent violated Section 8(a)(5) of the Act.
I find that even if the poll and the wage increase were
illegal and Respondent knew that all the employees had
supported the strike, its withdrawal of recognition in the
circumstances of this case was not a violation of Section
8(a)(5) of the Act, considered either in combination with
the poll and the wage increase, or either of them, or
viewed alone,
As to the grant and withdrawal of recognition as a
violation of Section 8(a)(5) on its own, General Counsel
relies on cases like Snow & Snow,' the argument being
that an employer cannot honestly say that he was in doubt
about a union's majority when he in fact knew that the
employees had designated the Union as their
representative However, although it is true that an
employer has no absolute right to insist upon a Board
election as the only means of establishing a union's
majority status, there was more than that in Snow &
Snow and the facts were not like we have in this case
There the employer actually participated in a check of the
signatures on the union's cards which check indicated that
a majority of its employees had applied for union
'Although Noble was in error about the date of the plant meeting, it is
clear that he was describing the meeting in question.
1134 NLRB 709, enfd 308 F 2d 687 (C A 9).
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership. The Respondent never questioned the
accuracy of the card check, its only defense to its
subsequent withdrawal of recognition being that it was
entitled to a Board-directed election and the card check
was not binding There were no facts of any kind in that
case to support a claim that there was a genuine question
about the union's majority status. Here, Respondent never
inspected the Union's cards, and even if we accept the
theory that the employees' failure to cross the picket line
and report for work on October 10 was no different from
leaving work to join a strike for recognition, which is
somewhat questionable in the cold light of industrial
reality, and was therefore a clear demonstration to the
Company that they wanted the Union and there could be
no doubt of it, as soon as the Union left the scene and the
employees entered the plant, some of them, without any
encouragement from Respondent, as far as this record is
concerned, stated that they did not want to be represented
by the Union. When Grimm explored this further, he was
told by a clear majority that they, too, did not desire
union representation A short time later, outside of the
presence of their employer, the employees were questioned
about their sentiments by the Union, and a majority of
them confirmed the advice that Grimm had transmitted to
the Union through his attorney, namely, that the
employees definitely did not want the Union. The Union
gave the employees an opportunity to clarify their
positions by a physical act, that is, walking back into the
plant, if they did not want the Union, and a majority did.
Approximately 10 minutes later, the Union called the men
out again, and once more they affirmed their previous
decision by returning to work after the Union asked them
to take a position on striking or working
In Jem Mfg , inc relied on by General Counsel, the
Board, citing Snow & Snow with approval, stated that
although General Counsel had the ultimate burden of
proving the employer's bad faith in declining to recognize
the union, he had met it by proof that the employer had
checked the union's cards, was satisfied that they
established the union's majority, and, in reliance on such
cards, commenced bargaining. The facts in Jem, therefore,
were also different from the facts in this case, and, in
addition, the Board went on in Jem to say that "The
burden of going forward to overturn this prima facie case
then shifted to Respondent to show evidence why the
check was erroneous or why on other grounds Respondent
in good faith believed recognition was mistakenly granted
to the Union " Here Respondent carried its burden with
credible, uncontradicted evidence that a majority of its
employees, without any promises of benefit or threats of
reprisal, told it that they did not want the Union to
represent them I find and conclude that Respondent's
withdrawal of recognition on October 10, considered apart
from the legality of its questioning of employees about
their wishes regarding union representation, and apart
from the wage increase granted to all of them that
afternoon, was not a violation of Section 8(a)(5) of the
Act 10
Grimm's questioning or polling of employees about the
Union on October 10 was a violation of the Act, because,
as explained below, it fell short of conforming with Board
'156 NLRB 643, 645
"Arthur F Derse , Sr. President, and Wilder Mfg Co, Inc, 173 NLRB
No 30; B & W Engineering and Manufacturing Co. Inc. 172 NLRB No
183, Indiana Ready Mix Corporation . 141 NLRB 651, 660, John P Serpa.
Inc , 155 NLRB 99 reversed 376 F 2d 186 (C A. 9)
standards regulating such conduct, and his grant of a
general wage increase a few hours later was also illegal,
but the addition of these elements does not automatically
establish that his refusal to recognize the Union almost 3
weeks before, when the first demand was made, or later,
on October 10, was in bad faith
In Hammond & Irving, Incorporated," the Board noted
that it had "long held that an employer may insist upon a
Board election as proof of a union's majority if it has a
reasonable basis for a bona fide doubt as to the union's
representative status in an appropriate unit " However, if
the employer has no good-faith doubt, but refuses to
bargain because he rejects the collective bargaining
principle or in order to gain time in which to undermine
the union's majority, such conduct will be a violation of
Section 8(a)(5) of the Act it is established that the
General Counsel has the burden of proving that the
employer's refusal was improperly motivated In deciding
what really motivated the employer, all surrounding
circumstances are considered, including any direct
evidence of motivation Absent direct evidence, the
existence of unfair labor practices may reveal an
employer's real motive and justify an inference of bad
faith. In Hammond & Irving, the Board made it clear
that not every act of misconduct vitiates an employer's
good-faith, for situations may exist where the violations
are "not truly inconsistent with a good-faith doubt that
the Union represents a majority of the employees 12
In my opinion, and I find, Respondent's conduct does
not establish that it rejected the collective bargaining
principle or was stalling in order to destroy the Union's
majority On the other hand, any improper actions in
which it engaged are not inconsistent with its claim that it
believed that the employees did not really desire union
representation. The record shows that Respondent,
through its attorney, twice suggested a Board election, and
when it thought that the employees' refusal to cross the
picket line on October 10 indicated that they wanted the
Union to represent them, it quickly capitulated and told
both its attorney and its employees that it had recognized
the Union. Up to that point there is not even a suggestion
of an improper state of mind, for Respondent's course of
conduct so far evidenced acceptance of the collective
bargaining principle, not rejection
The earliest claimed unfair labor practice was the
interrogation or poll of employees on October 10, after
Respondent recognized the Union, but this poll was free
of promises or threats designed to condition it in
Respondent's favor, and it was taken only after some of
the employees told Respondent that they did not want the
Union. On Grimm's uncontradicted testimony, the doubt
was raised at that point , and having pursued the matter
with the poll, the doubt was underscored by the
employees' responses . It would be anomalous to hold that
the very event that raises a substantial doubt in an
employer's mind that a union may actually represent his
employees is the thing that legally prevents him from
raising the question at all "
After Respondent polled its employees on the union
issue, the union representatives, in a private session with
them outside the plant, also asked him whether they
wanted to stay on strike or go back work Twice a
11 154 NLRB 1071, 1073
"Ibul , at 1073
"Because the interrogation was systematic , that is, all employees present
were asked how they felt about the Union, does not, in itself, impart a
coercive character to a poll Blue Flash Express , Inc , 109 NLRB 591, 593
ARCOA CORPORATION
majority indicated that they preferred to work. It was
after this occurred that Respondent granted wage
increases to all unit employees The employees had now
been polled three times, once by the employer and twice
by the Union, and each time a majority indicated a
nonunion preference. Whatever one may guess may have
caused this shift in employee sentiment, there is, contrary
to the suggestion in General Counsel's brief, no evidence
that anyone promised them anything 1 ° I see little in the
pay raises, coming as they did after the employees had
rejected the Union, to overcome the strong evidentiary
support the employees' own actions give to Respondent's
asserted good-faith doubt Moreover, regardless of its
legality it would be straining to attempt to relate the
increase back to Respondent's original actions in granting
and then withdrawing recognition in an attempt to support
an argument that Respondent's whole course of conduct
shows a rejection of the collective bargaining principle and
an intention from the beginning to undermine the Union
I conclude that General Counsel has not established by
a preponderance of the evidence that Respondent in bad
faith declined to recognize and bargain with the Union.
Respondent, therefore, did not violate Section 8(a)(5) of
the Act as alleged 15
2 Independent violations of Section 8 (a)(1) of the
Act
a. The poll
Even though there is hardly any dispute about the
circumstances surrounding Respondent's polling of
employees on October 10, the testimony of any witness
who testified about it has been set forth extensively above
for two reasons. First, the legality of interrogating or
polling employees has always been difficult to define, the
tests or standards varying from time to time and forum to
forum, and, second, peculiar or uncommon facts may
combine to create a flavor which suggests a result that
does not fit the standards.
In Blue Flash Express Co.," the Board listed certain
relevant factors it would consider in deciding in each case
whether a poll to determine union affiliation is lawful or
whether it interferes with the employees in the exercise of
guaranteed rights. These factors are. (1) whether the
interrogation serves a legitimate purpose which is
communicated to the employees; (2) whether employees
are assured that no reprisals will be taken against them;
(3) whether the atmosphere in which the poll is taken is
free from employer hostility toward the Union Later, in
Struksnes Construction Co, Inc ," it added the
requirement that an employer poll be conducted by secret
ballot.
Respondent did not tell the employees that their
answers would not result in economic reprisals, and the
poll was not secret. On the other hand, if any employer
ever had a legitimate reason for taking a poll it was this
"The conversation with Grimm that employee Hopings was testifying
about took place in the storage room during the afternoon of October 10,
after the employees had been polled and after they had told the Union that
a majority did not want to stay with the Union
"Hammond & Irving , Incorporated , supra, Grafton Boat Co, Inc, 173
NLRB No 150, B & W Engineering and Manufacturing Co, Inc. 172
NLRB No 183, Hardy-Herpolisheimer Division of Allied Stores of
Michigan , Inc, 173 NLRB No. 165, N L R B v Ben Duthler , Inc. 395
F 2d 28 (C A 6).
"109 NLRB 591 (1954)
11165 NLRB No 102
5
one who had just recognized the Union and was
immediately confronted by a group of employees advising
him that they did not want the Union as their
representative. It would also seem that the purpose of the
poll was apparent in the circumstances and needed no
explanation If it did, in order to conform with the
standards, then the explanation was implicit in Grimm's
remarks and conduct, because when someone said they did
not want the Union, he asked them why they had been on
the picket line, if that were the case, and when someone
else insisted that nevertheless they did not want the
Union, he took the poll to find out if the Union's claim of
majority support was valid.
No unfair labor practices of any kind having been
committed and recognition having been granted in fact, as
the employees well knew, there existed no atmosphere of
hostility toward unions, and, as the Board frequently takes
into account, the questioning was informal in tone and
setting No one can say for sure that the answers the
employees gave were truthful and for all times, but when
they had a chance to speak with the Union away from
their employer, they twice gave the Union the same
responses they had given their employer
In both Blue Flash and Struksnes the Board
emphasized that the context and all the circumstances
must be considered in determining whether the
interrogation "carried an implied threat of reprisal." The
facts which I have underscored, including the quick
recognition and immediate withdrawal of it in the face of
apparently spontaneous employee dissent, may be the
unique or "unusual circumstances"" which excuse
Respondent from literal compliance with the Board's tests
and prevent its poll from emanating an "aroma of
coercion."19 Special circumstances do exist here, and
Respondent's failure to give explicit assurances against
reprisals might be excused in the light of the benign
attitude the circumstances reveal, but the requirement of
secrecy is not easily brushed aside or explained away The
case is borderline, but on the basis of the authorities cited,
I find that Respondent violated Section 8(a)(1) of the Act
by interrogating employees about their union desires 20
b. The wage increases
Although the granting of the wage increases is not
sufficient to show that Respondent rejected the
collective-bargaining principle," it was, in my opinion, a
violation of Section 8(a)(1) of the Act since it was
designed to solidify the split in the Union's supporters and
to discourage employees from reaffirming their support of
the Union. This I infer from the timing of the increase in
the circumstances of this case. The Union's first demand
for recognition was made on September 23, and the strike
took place on October 10, a relatively short time later, yet
Respondent suddenly decided sometime during that period
to grant everyone substantial increase. The only
explanation given for the increase was Grimm's statement
at the time he announced the raises that he could take the
action now because "the Teamsters were out of the
"Struksnes. supra
"Joy Silk Mills v. N L R B, 185 F 2d 732, 740 (C A D C )
"See also N L R B v Berggren & Sons, Inc. 406 F 2d 239 (C A 8)
"in Mossgrove Mining Co , Inc. 158 NLRB 1325, 1328-29, relied on by
General Counsel , Respondent improperly interrogated employees , created
the impression of surveillance of their union activities and threatened
reprisals, besides granting a wage increase, and the totality of this conduct
supported the finding that Respondent had rejected the Union ' s demand in
that case in bad faith
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picture." But the Teamsters were not out of the picture.
Although most of their supporters seemingly had defected,
at least three remained outwardly loyal, and subsequently
engaged in further picketing of Respondent. The record
also shows that the Union has, with Respondent's
knowledge, continued to insist that it is the legally
authorized representative of employees. It also appears
that employee Hopings told Gottschalk on the morning of
October 10, in response to his inquiry, that the employees
had "stuck together" in order to get a wage increase. In
these circumstances, and without any evidence from
Respondent of a business justification for its action, the
inference is warranted that the wage increases were union
related and improperly motivated. By such action
Respondent violated the Act.=r
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of the Respondent set
forth in section III, above, occurring in connection with
its operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free now of commerce.
(b) Granting wage increases or other benefits to
employees to discourage them from engaging in union
activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found, will effectuate the policies of the Act:
(a) Post at its plant at Toledo, Ohio, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by its representative,
shall be posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in
writing , within 20 days from the receipt of this
Recommended Order, what steps Respondent has taken to
comply herewith."
IT IS FURTHER RECOMMENDED that the allegation Ot the
complaint that Respondent violated Section 8(a)(5) of the
Act be dismissed.
V. THE REMEDY
As it has been found that Respondent has engaged in
certain unfair labor practices, it is recommended that the
Board issue the Recommended Order set forth below
requiring Respondent to cease and desist from said unfair
labor practices and to take certain affirmative action
which will effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in
Section 2(5) of the Act.
3. By engaging in the conduct found to be violations set
forth in section III, B, 2a and 2b, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. Respondent did not refuse to bargain with the Union
in violation of law as alleged in the complaint.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
it is recommended that Respondent , its officers , agents,
successors and assigns , shall:
1. Cease and desist from:
(a) Interrogating or polling its employees regarding
their union membership or desires in a manner
constituting interference , restraint , or coercion in violation
of Section 8(a)(1) of the Act.
11N.L.R B v. Exchange Parts Co , 375 U.S. 405 , 409; Cf. Louisiana
Plastics . Inc. 173 NLRB No. 218.
"In the event that this Recommended Order is adopted by the Board,
the words "A Decision and Order" shall be substituted for the words "The
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board ' s Order is enforced by a decree of the United States
Court of Appeals, the words "A Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "A
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 8 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate you or ask you about your
union membership or desires in a coercive manner or
under circumstances constituting coercion.
WE WILL NOT grant you wage increases or other
benefits to discourage you from designating
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 20,
or any other union as your representative for collective
bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
right to self-organization, to bargain collectively
through representatives of your own choosing, and to
engage in any other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such rights might be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
ARCOA CORPORATION 7
authorized in Section 8(a)(3) of the National Labor This notice must remain posted for 60 consecutive days
Relations Act . from the date of posting and must not be altered, defaced,
or covered by any other material.
ARCOA CORPORATION If employees have any question concerning this notice
(Employer ) or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1695 Federal
Dated By Office Building , 1240 East 9th Street, Cleveland, Ohio
(Representative ) (Title) 44199 , Telephone 216-522-3715