Area Disposal, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1972

200 N.L.R.B. 350 (N.L.R.B. 1972)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Area Disposal , Inc. and Local 299, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Ind. Cases
7-CA-8966 and 7-RC-10710
November 20, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 11, 1972, Administrative Law Judge'
George J . Bott issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge2 and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Area Disposal, Inc.,
Taylor, Michigan, its officers , agents, successors,
and assigns , shall take the action set forth in
the Administrative Law Judge 's recommended Order.
IT IS FURTHER ORDERED that the election conducted
on August 27, 1971, in Case 7-RC-10710 be set
aside, that the petition filed therein be dismissed, and
that the proceeding in Case 7-RC-10710 be vacated.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Respondent 's request for oral argument is denied as the record, the
exceptions , and the briefs adequately present the issues and the positions of
the parties.
3 While Chairman Miller agrees that a bargaining order is appropriate
herein , he would, for the reasons stated in his separate concurrence in
United Packing Company of Iowa, Inc., 187 NLRB No. 132, predicate this
remedy solely upon the extensive 8(a)(I) violations found herein.
TRIAL EXAMINER'S DECISION AND
REPORT ON OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
GEORGE J. BoTT , Trial Examiner : The hearing in these
consolidated cases was held before me in Detroit , Michi-
gan, on April 10 and 11 , 1972. The unfair labor practice
cases began with a charge filed by Local 299 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Ind. (herein Union) on September
17, 1971, on which the Regional Director issued a
complaint against Area Disposal, Inc. (herein Respondent)
alleging that it had violated Section 8(a)(1) of the National
Labor Relations Act, as amended , herein called the Act.
On December 15, 1971, the Regional Director amended
the complaint to add an allegation that Respondent had
refused to bargain with the Union in violation of Section
8(a)(5) of the Act.'
Case 7-RC-10710 began with a Petition for Certification
of Representatives filed by the Union on July 26, 1971.
Pursuant to a Stipulation for Certification Upon Consent
Election , a consent election among Respondent's truckdri-
vers and helpers was held on August 27 , 1971. The Union
lost the election , but on September 1, 1971, it filed
objections to its conduct . The Regional Director investigat-
ed the objections and issued a Report on Objections in
which he concluded that the objections raised substantial
and material issues of fact which could be best resolved by
a hearing . Having also concluded that the issues raised by
the objections parallel those raised by the allegations of the
complaint in Case 7-CA-8966 , which issued simultaneous-
ly with his Report on Objections , he consolidated the cases
for hearing.
All parties were represented at the consolidated hearing.
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
1. RESPONDENT'S BUSINESS
Respondent , a Michigan corporation , has its principal
place of business in Taylor , Michigan , where it is engaged
in providing the services of collection and disposal of
rubbish and refuse for industrial , commercial , and private
customers.
During the calendar year ending December 31, 1970, a
representative period, Respondent derived gross revenue in
excess of $500,000 from the performance of its services, of
which services valued in excess of $50 ,000 were performed
1 The Regional Director had previously refused to proceed on the Sec.
8(a)(5) aspects of the Union's charge and issued a partial dismissal letter.
The Charging Party filed a request for review with the General Counsel on
October 25, 1971, and the General Counsel acknowledged the appeal by
letter of October 28, 1971 . On November 24, 1971, the parties were notified
by the General Counsel that the matter had been remanded to the Regional
Director for further investigation . Subsequently , while the appeal was still
pending, the Regional Director, having concluded that a complaint should
issue alleging a violation of Section 8(a)(5), rescinded his partial dismissal
and issued the amended complaint on December 15, 1971. On January 6,
1972, the General Counsel advised the parties that the Union 's appeal was
moot in view of the action of the Regional Director in rescinding his
dismissal.
On February 9, 1972, prior to the hearing in this case, Respondent filed a
motion to dismiss the 8(a)(5) portions of the complaint on the ground that
the Regional Director had exceeded his authority by amending the
complaint in the circumstances described . General Counsel filed an
opposition , and the matter having been referred to her for ruling, Trial
Examiner Nancy Sherman, on February 24, 1972, issued an order denying
the Respondent 's motion . Respondent renewed its motion at the hearing
before me at the close of the General Counsel 's case, and I denied it. Sam
Main and Sons, 127 NLRB 776.
200 NLRB No. 54
AREA DISPOSAL
for various enterprises located in Michigan, each of which,
during the same calendar year, purchased and caused to be
transported to their places of business within Michigan
goods valued in excess of $50 ,000, which were transported
directly from points located outside the State of Michigan.
Respondent concedes , and I find that it is an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Independent Violations of Section 8(a)(1) of the
Act
Paul Dyl, then employed by Respondent, arranged to
have union representatives meet with employees at his
home on July 20, 1971, to talk with them about organizing
a union . Some employees executed union authorization
cards at the meeting and others returned cards, which Dyl
had previously given them, already signed.
On Sunday morning, July 25, Norman Baker, Respon-
dent's president called Dyl to his office by telephone and
offered him a promotion to foreman , with an increase in
salary, on condition that he try to persuade his fellow
employees not to join the Union. Baker noted that Dyl was
popular with employees. When Dyl refused to commit
himself, Baker pointed out the advantages of his offer and
he also clearly suggested to Dyl that if the Union were
successful in its efforts to organize the employees , some of
them might lose their jobs because of certain individual
handicaps or other personal problems. He mentioned in
that connection Dyl's artificial limb, Brooks' lack of a
chauffeur's license, and Rich's illiteracy.2
Respondent held a meeting of employees on its premises
on Sunday afternoon, July 25, 1971, to discuss the Union
with them. Irving Hunter, business representative of the
Union, having been informed by an employee that the
meeting was planned , went to Baker's office and demand-
ed that Respondent recognize the Union as the bargaining
representative of Respondent 's employees . Baker turned
down the request, and, on July 26, the Union filed its
petition for an election with the Board.
Former employee Burbo assisted Dyl in soliciting
employees for the Union . He testified credibly and without
contradiction that Foreman Walker came to his home on
Sunday , July 25, and told him to be present at a meeting of
all employees that afternoon. Burbo attended, as did 25 or
30 other employees . Baker addressed the employees, and
Hunter , who had just demanded recognition , also said a
few words . When Burbo spoke out in favor of a union,
Baker asked him who had chosen him to represent the
employees , and then adjourned , the meeting.
On the following day Baker approached Burbo at the
Respondent's garage and attempted to dissuade him from
supporting the Union. Baker argued that he could not
afford to pay union wages and he also contended that the
2 Dyl's testimony, upon which the above findings are based , is undemed.
3 Either Burbo was obviously in error or the transcript is inaccurate
351
Union would not obtain any benefits for employees. Baker
also told Burbo, as he had Dyl, that he was influential with
the men and promised to make him foreman Walker's
assistant , with a substantial increase in salary, if he would
talk the employees out of the Union.
During his conversation with Burbo , Baker advised him
that, as of that day, he was granting all employees a $10-
per-week increase . Shortly thereafter , Burbo passed this
information on to employee Reames who was not inclined
to believe it until Foreman Walker confirmed it.
Records in evidence show, and it was also stipulated that
Respondent granted all employees a wage increase of $10-
per-week on July 26, effective as of July 23, the beginning
of the payroll period.
I find and conclude on the basis of Dyl's and Burbo's
testimony that by promising them promotions upon the
condition that they attempt to turn their fellow employees
away from the Union, Respondent violated Section 8(a)(1)
of the Act.
I also find that Respondent violated Section 8(a)(1) of
the Act by threatening employees with discharge in the
event the Union became their bargaining representative, as
testified to by employee Dyl.
Respondent also violated Section 8 (a)(1) of the Act by
granting and announcing a general $10 wage increase to all
employees on July 26, effective as of July 23 3 Ernest
Labato, an officer of Respondent, testified that it is
Respondent's practice to grant employees raises during the
summer season when Respondent 's major contracts are
renewed on a 3-year basis . He said that the subject of a
raise for all employees was discussed with Baker in July,
1971, but that final decision was delayed because Baker
was on vacation. I do not find support in the record or in
his testimony for the suggestion that the $ 10 raise
announced on July 26 was motivated by ordinary business
considerations and not by an intention ' to thwart the
Union's organizing efforts. Baker did not testify, and no
records showing Respondent's past practices were prod-
uced , and it appears that the 1971 raise was twice as much
as the one given in 1968 . Labato also said he had no
recollection of what had been done in 1965 . It also appears
that Respondent's three major contracts were entered into
in February, March, and early July 1971 , respectively, and
there is no adequate explanation for R'espondent's post-
ponement of the increase until late July . Finally, the
context in which the raise was announced as well as its
timing is especially significant . Baker told Burbo about the
general increase in the same conversation in which he tried
to get him to work against the Union by offering him a
promotion , and the increase was publicized the day after
the Union asked for recognition and the very day it
petitioned the Board for an election because recognition
had been denied it.
B. Alleged Refusal To Bargain in Violation of
Section 8(a)(5) of the Act
1. The appropriate unit
The complaint alleges, the answer admits, and I find that
where he is recorded as saying that he learned about the increase on July 22.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all truckdrivers and helpers employed by Respondent at its
Taylor, Michigan, establishment, but excluding all office
clerical employees, guards, and supervisors as defined in
the Act, and all other employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. The demand and the refusal
On July 25, 1971, Hunter, a business representative of
the Union, visited Respondent's place of business and
requested Baker, Respondent's president, to recognize the
Union as the statutory representative of Respondent's
employees in the appropriate unit, but Respondent denied
the request. On July 26, 1971, Hunter sent a telegram to
Respondent in which he claimed that a majority of the
employees in the appropriate unit had designated the
Union as their bargaining representative and demanded
that Respondent recognize and bargain with the Union as
the exclusive representative of such employees. In the
telegram, Hunter also stated that the Union was willing to
have a neutral person check the Union's authorization
cards to verify the Union's majority claim. The Union's
telegraphic demand for recognition was received by
Respondent on July 27, and, according to Hunter's
uncontradieted testimony, it was ignored by Respondent
until a week or 10 days later when Respondent's counsel
telephoned him and indicated that Respondent would
prefer to have the matter handled by the Board. As pointed
out earlier,'the Union did file a petition for an election with
the Board on July 26, and an election, based upon a
consent agreement, was held on August 27, with a large
majority of the employees voting against the Union.
3. The Union's majority status
There were 39 employees employed in the appropriate
unit during the payroll period ending July 29, 1971, as
appears from the Respondent's payroll for that period. The
Union obtained a maximum of 21 signed authorization
cards during the payroll week ending on July 29, but only
20 of the cards are in evidence.4 Respondent contests the
validity of the cards on a number of grounds.
Respondent attacks the authorization cards of Marshall
Reames and Donald Bates on the ground that the Union
had not received them when it made its demands for
recognition on July 25 and 26.5 Bates signed his card and
gave it to Hunter at a meeting on July 26, which took place
after 5 p.m.
4 General Counsel offered the authorization card of James V. Rich and
requested the Trial Examiner to compare the signature on the card with the
signature of the employee on Michigan and Federal tax withholding
exemption certificates produced from Respondent's files. I felt unqualified
to make an expert comparison and I also thought that a sufficient
foundation for the use of such a technique in this type of case had not been
established. In asking that I reverse my ruling rejecting the card and the
handwriting specimens and refusing to make the comparison, General
Counsel cites Aero Corporation, 149 NLRB 1283, 1287-88, and Heck's, Inc,
166 NLRB 186, but I think the cases are distinguishable. In Aero
Corporation, the comparison of the signature on the card with genuine
signatures on the tax forms was made by a handwriting expert, called as a
witness by General Counsel, who testified that the signatures matched. It
also appeared that the signers were no longer employed by the employer
and not available to testify at the hearing. In Heck's, Inc., the parties
Reames' card is dated July 20, but he mailed it to the
Union sometime after that, but exactly when he could not
say. Reames first said he signed the card on the date it
bore, but he quickly questioned his own testimony, for he
was positive that he had not signed the card on the day he
mailed it, and he thought it was postmarked "July 20."6
Later he said he thought he received the card at a union
meeting and had mailed it to the Union on July 28, but he
also conceded that he could have signed the card before
July 26 since he had union cards in his possession before
then. Because Reames was uncertain about the date of
execution and mailing, I cannot find that the Union had
his card in its possession on July 26, but Hunter delivered
the card to the Board's office no later than 1:30 p.m., July
29, for it is so time-stamped, and I credit his testimony that
he had to have received the card at his office in the regular
course of business no later than July 28 in order to be able
to deliver it to the Board at the time indicated by the time
stamp.
Although the Union had not received Bates' and
Reames' cards when Hunter dispatched his second
demand by telegraph on July 26, I find that the Union had
Bates' card on July 26 and Reames' no later than July 28.
I also find that the Union's demand for recognition was
a continuing one and that it would have been futile for the
Union to have made another demand for recognition on
July 28 or later, when it did have these cards, because
Respondent had ignored the Union's written demand and
had attempted to impede the Union's efforts to become the
bargaining representative of the employees by the commis-
sion of serious unfair labor practices. I conclude, therefore,
that Bates' and Reames' cards may be counted in
computing the total number of cards the Union possessed
during the payroll week ending July 29, if they are
otherwise valid.?
Respondent contends that former employee Geilenski's
card is not a valid designation of the Union because
neither he nor Business Representative Hunter authenticat-
ed his signature. Geilenski testified that while he was
working for Respondent in July, 1971, he was asked to sign
a union application at a union meeting. Shown the card
bearing his signature, he said he signed it after receiving it
from Hunter„ Geilenski has a little difficulty in speaking
English, and he also said at different times that he could
not read what was on the card "very good" or "at all."
Later, however in answer to the Trial Examiner's inquiries,
he stated that he could "read pretty good." Geilenski also
testified that Hunter told him when he gave him the card
stipulated that the signer was unavailable , his whereabouts being unknown.
In the instant case, Rich is still employed by Respondent, and so is not
unavailable, even though I accept General Counsel's representations that he
has been unable to reach the employee After due consideration , my ruling
remains the same, for in these circumstances, in my opinion, it is the
General Counsel's or the Union's burden to produce either the signer, or
someone who saw him execute the document, or to use expert testimony,
and it is not incumbent on Respondent to call the employee for examination
at the hearing, as General Counsel suggests.
s Respondent also claims that these cards and those of other employees
are not valid designations of the Union because employees were told before
they signed them that they would be used for no other purpose than to get
an election This issue will be treated separately.
6 The postmark is illegible, and never was clarified.
7 Hardy-Herpolsheimer Division of Allied Stores, 173 NLRB 1109, 1121.
AREA DISPOSAL 353
that it "was for the union," but he also added that he was
told it was "to vote for the union."
Apart from the question of alleged misrepresentations
cancelling the language of the card , to which contention we
turn next, Geilenski recognized his signature and knew that
the card shown him was the card he signed. I find that the
card is not invalid because of lack of authentication. I also
find, based on his testimony and my close observation of
him, that Geilenski , an alert and intelligent individual, is
sufficiently at home in English to have understood the
language on the card he signed.
The card used by the Union in its organizing campaign is
a single-purpose authorization card stating clearly and
unambiguously on its face that, "I hereby designate the
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , through its
authorized agents, as my representative for collective
bargaining." At the top of the card appears the Union's
name in large print, and below that, in even larger type, the
card is described as an application for membership.
Despite the clear statements on the card , Respondent
contends that the totality of circumstances surrounding the
card solicitation was such, as to add up to an assurance to
the signer that his card would be used for no purpose other
than to secure a Board election, and this argument
requires, therefore, a review and evaluation of the
testimony of the signers and, solicitors about statements
made at the time the cards were solicited and executed.
As set forth above, former employee Geilenski , said he
was told that the purpose of the card was to "vote for the
union," but he also stated that he was told that the card
was "for the Union."
Employee Bates testified that he signed a card for the
Union at a union meeting, but he said he was told that "it
was for an election only" and that no other purpose was
stated to him by Business Representatives Hunter and
Oulette , who were present when he signed the card. He was
not sure, but he thought that Oulette explained the purpose
of the card to him. It also appears that Bates gave an
affidavit to a representative of the Board in which he stated
that he signed the card and returned it to Oulette because
he "vented to be a member of the union, and . . . wanted
it to ' represent (him) in dealing with Area Disposal."
Employee Gary Asciutto, called as a witness by
Respondent , signed his card at a meeting at employee
Dyl's home on 'July 20. He said that when a union
representative handed hire an authorization card he asked
him and the other employees if they were serious about
trying to "get a union in the company," and when the
employees indicated that they were, the union representa-
tive advised them that they must sign the cards in order to
have a , vote to determine whether or not the employees
wanted a union. He said he recalled no other reason given
by anyone for signing cards. On cross-examination,
however, Asciutto also remembered that the person who
spoke to employees on the Union's behalf also stated that
the Union wanted to secure more than a majority of
signatuies if it could , for in that case the Union could ask
the Respondent for recognition and go on strike if
necessary . The speaker also referred to other matters in
connection with soliciting the cards , such as governmental
protection of employees' right to join a union or sign a
membership application card, the filing of unfair labor
practice charges if those rights were interfered with, and
the election of a union steward to represent the men.
Employee Donald Allen, called by Respondent, testified
that he signed an authorization card for employee Burbo.
Burbo filled in all other material on the card except his
signature, because Allen cannot write, although he can
print his name. Allen cannot read either, and he said that
Burbo and former employee Dyl, who solicited him, told
him that "we need a union," that employees would
"prosper" with a union, and that they could "get a union in
here if you will sign" the card. Asked, however, what the
card he signed was, he answered that it was a "card to get
an election for the union." Allen gave his signed card to
Business Representative Hunter at a meeting at Dyl's
home. He said Hunter asked to see his driver's license in
order to compare the printed signature on Allen's card
with the one on the license. He recalled Hunter comment-
ing that he doubted that a printed signature would be
approved, and he also said that Hunter stated that if
enough cards were obtained, the employees could "get an
election for a vote for a union." On cross-examination
Allen admitted that he had given an affidavit to the Board
in which he had stated that he had given his card to the
Union because he "wanted to join the union and have it
represent (him) in dealing with Area Disposal, Inc." At
another point in his testimony, he indicated that Hunter
had said other things, for he also recalled that Hunter
expressed doubts that the employees would "get the
union," because not enough signed cards were being
returned. When Hunter made that remark, Allen handed
him his card, he said, stating "there's mine."
Employee Walter Sharp, called by Respondent, signed a
card at Dyl's home at a meeting attended by Union
representatives Hunter and Oulette. He said both repre-
sentatives stated that if enough cards were signed, a vote
would be taken to determine whether the employees
wanted a union or not. He also testified that Oulette said
the cards were "not worth a damn" and did not mean
anything until a vote was taken. He also stated that Oulette
told him that signing a card did not make him a member of
the union, but permitted the union to get an election. On
cross-examination, he said that when Dyl invited him to
the meeting at his home, he told him that "we are getting a
union in over there," and employees had to attend the
meeting and sign cards "if we were going to join the
union." He also recalled something about Hunter mention-
ing arranging a meeting with the Respondent, but he
connected this with the holding of an election. Sharp at
first suggested that he had not read the card before he
signed it, but when it was called to his attention that he had
filled in all the spaces on the card, giving the information
called for, he conceded that he must have read the card.
Gandolf Asciutto, Gary's father, did not sign a card and
did not go to the meeting at Dyl's home, although he was
invited. He testified that Dyl solicited hitn a number of
times and each time told him he wanted his signature so
that "an election for the union" could be held. He also
described the substance of Dyl's remarks as the signing of
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards so that employees could have an "election to get the
union in."
Marshall Reames, called by General Counsel, testified
that Hunter told the employees at the meeting he attended
that the Union already had enough signatures to secure a
Board election, but he also said that Hunter also told them
that the card was "to get recognition." " He also recalled,
after being shown an affidavit he had given the Board
during the investigation of this case, that Hunter had said
that "the purpose of the card was for the Union to get
recognition from Area Disposal Corporation."
Hunter testified that he attended a number of meetings
with employees and discussed unionism with them. He
recalled being at meetings at Dyl's home in July when the
Sharps (father and son) Geilenski, Gary Asciutto, Don
Allen, and others were present. Hunter was also present at
a meeting which took place at the Veterans of Foreign
Wars hall on July 26 where other employees signed or
returned signed cards to the Union. According to Hunter,
at the meetings at Dyl's home, he and Union Representa-
tive Oulette answered employees' questions. He said he
told employees, as he customarily did in these situations,
that if they decided that they wanted to have the Teamsters
represent them they would have to sign an application
card, and that if a majority of employees signed cards, the
Union could petition the Board for an election. He also
said that he explained to the persons present what the
Union had to offer in regard to "job rights and seniority
and representation," but that he warned them that
although the Board would accept cards from 30 percent of
the employees as a basis for holding an election, that was
only a minimum number, and if the employees were
seriously interested in the Union, he wanted them to show
their desire for representation by a large number of them
signing union cards.
Hunter also testified that he told the employees at the
meeting at Dyl's that if a great number of cards were
signed, the Union could demand recognition and could
strike to get it if it were refused, but he also said that he
advised the employees that although that was an "avenue"
the Union could, take if a majority of employees signed
cards, the Union preferred to have a Board election. He
said some of the employees were interested in a strike for
recognition, but he discouraged it and told them that if "we
have a certain number of cards we will petition for an
election and go to the NLRB, and no one is losing any
work."
Union Representative Oulette was also involved in
organizing Respondent's employees and he attended a
meeting at employee Dyl's home on July 20. He testified
that he did considerable talking at the meeting, most of
which concerned asking employees to sign application
cards and explaining to them what the union could do for
them. He said that he mentioned "job security and
representation" as two items the Union had to offer. He
also said that both he and Hunter explained the impor-
tance of the application card as a "show(ing) of interest for
the NLRB to get them to sponsor our election for us."
Oulette indicated that he told employees what he usually
did in other cases, that is, that the Union needed to have
"at least thirty percent of signed cards, voluntarily signed
cards to file with the NLRB for an election , but we don't
like to move generally with less than fifty, sixty or seventy
percent."
Oulette testified that under questioning by employees he
explained that "we can call in a third party" if the
Company did not believe the Union had a majority, but he
also thought, oddly enough, that the purpose of having "a
disinterested person like a clergyman" check the Union's
cards was "to have an election . . . with the NLRB." On
the other hand, asked what else he told the employees, he
replied that since the subject was usually beyond the
employees' prior experience, "you explain the purpose of
the card, it is strictly an application card and it signifies the
Teamsters union as the sole bargaining agent for them."
According to Oulette, the subject of strikes was men-
tioned, but he and Hunter tried to soft-pedal that issue, but
he said the employees were informed that if a large
majority of them signed cards, the Union could strike for
recognition. He also said that he and Hunter told the
employees that there was another way of seeking recogni-
tion by demanding it from an employer and offering to
have the Union's cards checked by a third person if the
employer disputed the Union's majority status.
Oulette denied that he had told any employee that
signing a card did not mean a "damn thing," as employee
Sharp had testified, but he said that he believed he had
stated, as he had on other occasions, that signing a union
card was not like signing a mortgage, and if the employee
changed his mind at any time, he would tear his card up, if
he still had it. He also said that he told the assembled
employees that the cards would be held in the "strictest
confidence" and would be shown to no one but the Board.
I credit Hunter and Oulette. Neither appeared to be
embellishing his testimony and both were particularly
frank in stating what they told employees about the use of
authorization cards in obtaining Board elections. Although
Oulette appeared slightly confused with respect to the
cross-check technique for obtaining recognition,8 his
testimony was otherwise logical and sounded plausible.
Hunter, on the other hand, appeared more experienced in
these matters than Oulette, and his testimony is clearer and
easier to follow, although he, like Oulette, spoke like a
union business agent, not a lawyer, in describing what he
tells persons who call upon the Union to help them
organize. I also find that their testimony in this area is very
much like that of some of the employees called by General
Counsel and Respondent, and this is an additional reason
for crediting them. Gary Ascuitto, for example, called by
Respondent, who said he asked Hunter what the card was
for before he signed it and was told that the Union had to
have a certain number before it could have a vote, also
recalled later that Hunter talked about obtaining recogni-
tion of the Union from the Respondent on the basis of a
majority of signed authorization cards.
I find, therefore, that Hunter and Oulette told the
employees they spoke with at union meetings that they
were soliciting their signatures to union authorization cards
8 He said he had not experienced obtaining recognition of the Union on
the basis of a check of union authorization cards by a neutral person.
AREA DISPOSAL
for use in filing a petition for an election with the National
Labor Relations Board but that they also told them that
the Union would demand recognition from the Respon-
dent as the employees' representative , that the cards could
be used in obtaining recognition , that a strike for
recognition was a possible route to recognition , but one
which the Union intended to avoid by filing a petition for
an election if recognition were denied it. I also find that the
employees were told that the card was an application for
membership in the Union and that the Union would
represent the employees if they signed cards.
Specifically, in regard to the testimony of particular
employees , I find that Oulette did not tell Sharp that the
card did not "mean anything" and was not "worth a
damn." In addition to the fact that Sharp recalled more on
cross-examination about what Hunter and Oulette said
when they presented the cards than he did on direct, he
also impressed me generally as an employee who was
having second thoughts about why he signed the card in
the first place.
I do not credit Bates' testimony that he was told that the
card was for an election "only." He was not sure which
business agent told him that , and he previously signed an
affidavit for the Board stating that he signed a card
because he wanted to join the Union and be represented by
it.
I also find that Donald Allen was told more by Hunter
than he said he was in his testimony. In addition to stating
that employee Burbo solicited him for the Union and had
said that the employees would "prosper" under a union, he
brought his card to a union meeting already signed and
gave it to Hunter, even though Hunter questioned his
signature, and he, too, had given the Board an affidavit in
which he had sworn that he wanted to join the Union and
have it represent him in dealing with the Respondent.
The issue facing us here of whether the authorization
cards are not valid designations of the Union because they
were obtained by misrepresentation is controlled by the
Board's Cumberland Shoe9 doctrine which the Supreme
Court in N.L.R. B. v. Gissel Packing Co., 395 U.S. 575, 584,
expressly approved and described as follows:
... Under the Cumberland Shoe doctrine, if the card
is unambiguous (i.e., states on its face that the signer
authorizes the union to represent the employee for
collective bargaining purposes and not to seek an
election), it will be counted unless it is proved that the
employee was told that the card was to be used solely
for the purpose of obtaining an election.... [Empha-
sis in original.]
The Supreme Court then stated at pp. 606-607:
In resolving the conflict among the circuits in favor of
approving the Board's Cumberland rule, we think it
sufficient to point out that employees should be bound
by the clear language of what they sign unless that
language is deliberately and clearly canceled by a
9 Cumberland Shoe Corp, 144 NLRB 1268
10 In Lew Strauss, the Board, in explaining and reaffirming the
Cumberland doctrine, added , in fn . 7, that it did not mean to "imply that a
finding of misrepresentation is confined to situations where employees are
expressly told in haec verba that the `sole' or `only' purpose of the cards is to
obtain an election ." The Board went on to make it clear that "it is not the
use or nonuse of certain key or `magic ' words that is controlling, but
355
union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature. There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
card will probably be used first to get an election... .
The Court also noted its agreement with the Board's own
warnings in Levi Strauss & Co., 172 NLRB No. 57, that in
hearing testimony concerning card challenges, trial exam-
iners should not neglect their obligation to ensure
employee free choice by a too easy mechanical application
of the Cumberland rule,10 but it also commented that it
accepted the "observation that employees are more likely
than not, many months after a card drive and in response
to questions by company counsel, to give testimony
damaging to the union, particularly where company
officials have previously threatened reprisals for union
activity in violation of Section 8(a)(1)." The Court went on
to reject any rule that requires a probe of employees'
subjective motivations, but it cautioned the Board to guard
against any approach any more rigid than used in General
Steel.ii
Having examined the totality of circumstances surround-
ing the card solicitation in some detail, I find that they do
not add up to an assurance by the solicitors to the signer
that the cards would be used only for an election. Although
my reading of Hunter's and Oulette's testimony, as well as
that of the card signers, convinces me that it was made
clear to the employees that a Board election was contem-
plated and that the cards would be used for that purpose, I
have also found that employees were also told that the
cards could be used to obtain recognition from Respon-
dent. It seems to me that the Union felt that voluntary
recognition was unlikely, and it is clear that it advised the
employees that no strike would occur if the Respondent
declined to recognize the Union, but that the Union would
instead petition the Board for an election. In that context,
the employees might easily understand that an election was
to be expected and that the cards were being signed to that
end. I cannot, however, in the light of the teachings of the
cases, find that the clear language of what the employees
signed was "deliberately and clearly cancelled by a union
adherent with words calculated to direct the signer to
disregard and forget the language above his signature." An
election, in the solicitors' view, was "probable," "likely"
and even an odds on bet if enough employees signed cards,
and this, without a doubt, was what they meant their words
to mean, but this does not negate their reference to
voluntary recognition on the basis of the employees'
signatures or cancel the clear language of the card, and we
have not yet been told that an authorization card,
otherwise valid, is invalidated if employees are told that its
principal purpose is to get an election.
I find, therefore, for the reasons stated, that none of the
whether or not the totality of circumstances surrounding the card
solicitation is such, as to add up to an assurance to the card signer that his
card will be used for no purpose other than to help get an election"
11 395 U.S. at pp 608-609. General Steel Products, Inc., 157 NLRB 636,
enfd. in part, 398 F.2d 339 (C.A. 4), was one of the four cases, including
Gissel, before the Court on the card question
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards is invalidated because the signer was told that his
card would be used only to get an election.12
I find further that the Union represented a majority of
the 39 employees on Respondent's payroll during the
payroll week ending July 29, based on the 20 valid
authorization cards of the following employees, authenti-
cated as indicated:
Ronald Bates, Marshall Reames, Stanley Geilenski
(Gileski), Raymond Burbo, Paul Dyl, Gary Asciutto,
Walter Sharp, and Donald Allen authenticated their own
cards.
Virgil Sharp and William Hartley filled out cards on July
20, at a small meeting at Dyl's home, and handed them to
Hunter, according to Hunter's credited testimony.
Paul Dyl obtained the cards of the following employees
who either signed in his presence or returned the card to
him already signed, according to his credited testimony:
Lawrence E. Dyl (his brother), John Von Linsowe, George
Hollis, Thomas Allen, J. Ptak, Bud Miracle, William Papp,
Leo Nowcekowski, Eunice Carroll, and Dana Curry.
4. Whether a bargaining order is an appropriate
remedy under the circumstances herein
The existence of the Union's majority status does not by
itself, however, establish a refusal to bargain in violation of
the Act or justify the imposition of a bargaining order. In
Gissel Packing Company, supra, the Court sustained the
Board's remedial authority to issue a bargaining order, in
cases like this one, where an employer rejects a valid card
majority and commits unfair labor practices "that interfere
with the election process and tend to preclude the holding
of a fair election." 13 While the Court approved the
imposition of a bargaining order in "exceptional" cases
where there was no 8(a)(5) violation but the unfair labor
practices were so "outrageous" and "pervasive" that "their
coercive effects cannot be eliminated by the application of
traditional remedies," 14 it also held that a bargaining order
is appropriate "in less extraordinary cases marked by less
pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede the
election processes." In regard to the issuance of a
bargaining order in these less severe cases which interfere
with the election processes, the Court set forth the
following standards:
In ' fashioning a remedy in the exercise of its discretion,
the Board can properly take into consideration the
extensiveness of an employer's unfair labor practices in
terms of their past effect on election conditions and the
likelihood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is a
slight and that employee sentiments once expressed
12 General Steel Products, Inc., supra, fn. 11
13 395 U.S. 575, 594-
14 395 U.S at 613-614
15 Gissel Packing Co., quoted above in the text.
16 General Stencils, Inc., 195 NLRB No. 173 (79 LRRM 1608) and cases
cited therein in the dissenting opinion of Chairman Miller
17 The Union's fourth objection, objection 3, seems to duplicate
objection 2.
18 As such conduct occurred on July 26, the date the petition was filed,
through cards would, on balance, be better protected
by a bargaining order, then such an order should issue.
(395 U.S., at 614-615)
I have found that contemporaneously with the Union's
demand for recognition and bargaining, Respondent
granted its employees a wage increase to thwart the Union.
When it learned that two of its employees were playing an
active role in organizing, it offered them promotions on
condition that they use their leadership talents to turn the
employees away from the Union, and it threatened one of
these persons with reprisals if the Union were successful in
its efforts, suggesting to him that he and his fellow
employees would suffer under the Union and that some of
them might lose their jobs.
Board members sometimes disagree as to the kind and
extent of unfair labor practices which will call forth a
bargaining order in these cases, but, as I read its recent
decisions, the Board would unanimously hold that the-
grant of a general increase, with or without the promises of
benefits and the threats found above, would have such an
impact on employees that the "possibility of erasing" its
effects and "of ensuring a fair election (or a fair rerun) by
the use of traditional remedies, though present, is slight
and that employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order ...." 15 On the basis of those cases, I find that
Respondent's conduct in this case amounted to an
unlawful refusal to bargain in violation of Section 8(a)(1)
and (5) of the Act, and I further find that the remedy of a
bargaining order is appropriate either for a Section 8(a)(5)
or a Section 8(a)(1) violation.i6
IV. THE REPRESENTATION CASE
In the election held on August 27, 1971, the employees
voted 25 to 7 against union representation . On September
1, 1971, the Union filed timely objections to the election.
One of the Union's objections relates to the general wage
increase Respondent announced on July 26, effective as of
July 23 , and another relates to a "promise of a wage
increase and other things of value ." A third objection states
that Respondent called employees into the office and
coercively attempted to induce them to vote against the
Union.17
Having found that Respondent engaged in serious
violations of Section 8(a)(1) of the Act on July 26, 1971, the
day the representation petition was filed ,18 by announcing
a general wage increase and by offering an employee a
promotion on condition that he dissuade employees from
supporting the Union, it follows that such conduct
interfered with the employees' free choice of a collective-
bargaining representative and that the results of the
election must be set aside.19
In view of my recommendation, hereinafter set forth,
and before the election held on August 27, it falls within what the Board
regards as the critical period West Texas Equipment Company, 142 NLRB
1358.
19 Leas & McVrtty, Incorporated, 155 NLRB 389. Geilenski 's testimony
that President Baker had him and other employees in his office before the
election and talked about pay raises and the union is not as clear as it might
be, but it is undenied, and I find it sufficient to support a finding to sustain
Union's objection 3.
AREA DISPOSAL
that Respondent be required to recognize and bargain with
the Union, I shall recommend that the petition in Case
7-RC-10710 be dismissed, and that proceedings in
connection therewith be vacated. Irving Air Chute, Inc., 149
NLRB 627.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act, I shall recommend that Respondent
cease and desist from engaging in such unfair labor
practices and from like or related unfair labor practices
and to take certain affirmative actions which I find will
effectuate the policies of the Act. I shall also recommend
that Respondent bargain collectively, upon request, with
the Union as the exclusive bargaining representative of the
employees in the unit found appropriate herein, and to
embody any understanding reached in a signed agreement.
Upon the basis of the foregoing findings of fact and on
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By announcing and granting wage increases to
influence employees' choice of a bargaining representative
and to induce them to reject and refrain from activities in
support of the Union, Respondent violated Section 8(a)(1)
of the Act.
4. By promising employees wage increases and promo-
tions on condition that they attempt to dissuade other
employees from supporting the Union, Respondent violat-
ed Section 8(a)(1) of the Act.
5. By threatening employees with discharge or other
reprisals in the event that the Union became their
bargaining representative, Respondent violated Section
8(a)(1) of the Act.
6. By refusing to bargain with the Union as the
exclusive bargaining representative of employees in the
unit found appropriate, Respondent violated Section
8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I recommend the following:
ORDER20
Respondent, Area Disposal, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Announcing or granting wage increases to influence
employees' choice of a bargaining representative or to
induce them to reject and refrain from activities in support
of Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind.,
or any other labor organization.
(b) Promising employees wage increases and promotions
357
upon condition that they attempt to dissuade other
employees from supporting said Union.
(c) Threatening employees with discharge or other
reprisals because of their union activities.
(d) Refusing to bargain with the Union as the exclusive
bargaining representative of its employees in the unit
found appropriate herein.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in their exercise of
the rights guaranteed in Section 7 of the National Labor
Relations Act, as amended.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the unit
found appropriate, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Taylor, Michigan, place of business, copies
of the attached notice marked "Appendix."21 Copies of
said notice, on forms provided by the Regional Director
for Region 7, shall, after being duly signed by Respondent,
be posted immediately upon receipt thereof, in conspicu-
ous places, including all places where notices to employees
are customarily posted, and be maintained by it for 60
consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith 22
I FURTHER RECOMMEND that the election conducted in
Case 7-RC-10710 on August 27, 1971, be set aside and
that proceeding be vacated and the petition dismissed.
20 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Sec. 102,48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions, and order, and all objections
thereto shall be deemed waived for all purposes.
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
22 In the event ' that this recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 7, in writing, within 20 days from
the date of this Order, what steps Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT announce, promise, or grant wage
increases to our employees to discourage them from
voting for, joining or supporting Local 299, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind., or any other
labor organization.
WE WILL NOT promise employees promotions in
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to try to persuade them to turn other employees
away from the above Union or any other labor
organization.
WE WILL NOT threaten employees with discharge or
other reprisals because of their union activities.
WE WELL NOT m any like or related manner interfere
with our employees in the exercise of their organiza-
tional rights guaranteed under the National Labor
Relations Act.
WE WILL, upon request, bargain collectively in good
faith with the Union as the bargaining representative of
all employees in the bargaining unit described below
with respect to wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody it in a signed agreement. The
bargaining unit is:
All truck drivers and helpers, excluding supervi-
sors as defined in the National Labor Relations
Act, as amended.
Dated By
AREA DISPOSAL, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 500 Book Building, 1249
Washington Boulevard, Detroit, Michigan 48226, Tele-
phone 313-226-3200.