Bauer Welding & Metal Fabricators, Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1965

154 N.L.R.B. 954 (N.L.R.B. 1965)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its pro-
visions , they may communicate directly with the Board 's Regional Office, 16 Court
Street, Brooklyn , New York, Telephone No. 596-5386.
Bauer Welding & Metal Fabricators, Inc. ' and Sheet Metal
Workers Local Union 547, affiliated with Sheet Metal Workers
International Association , AFL-CIO and Operations Commu-
nications Committee , Party in Interest . Case No. 18-CA-1883.
September 3,1965
DECISION AND ORDER
On April M, 1965, Trial Examiner A. Norman Somers 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
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 and the entire record in this case,' including the
exceptions and brief, 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 hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
the Respondent, Bauer Welding & Metal Fabricators, Inc., its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order .2
' We adopt the Trial Examiner 's finding that the authorization cards presented by the
Union in support of its demand for recognition did clearly and unambiguously authorize
the Union to represent the signers for the purpose of collective bargaining . We further
agree that the letters that accompanied the cards , although they refer to an election, un-
equivocally state that it is the signer 's authorization of the Union to represent him that
is sought . We therefore see no misrepresentation or ambiguity in the letter . Thus, sub-
jective evidence as to the intent of the signers is irrelevant, and we do not rely on such
testimony . However, the Trial Examiner 's receipt of such evidence , although error, was
not prejudicial.
We expressly disavow the Trial Examiner 's speculations and assumptions as to how
particular employees might have voted in the election , and what conclusions may be
drawn therefrom , as forth in the latter part of section E, 2, of his Decision.
2 The telephone number for Region 18, appearing at the bottom of the notice attached
to the Trial Examiner 's Decision , is amended to read: 334-2618.
154 NLRB No. 82.
BAUER WELDING & METAL FABRICATORS, INC. 955
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard betore Trial Examiner A. Norman Somers in Minneapolis,
Minnesota, on October 26, 27, and 28, 1964, on complaint as amended alleging, and
answer as correspondingly amended denying, that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (2), and (5) of the Act.' At the hearing
(except for the Operations Communications Committee, which though duly served
did not appear) all parties were represented by counsel, who participated in the
presentation of evidence, and filed briefs, which have been duly considered. Upon
the entire record, and my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Bauer Welding & Metal Fabricators, Inc., the Respondent herein, is a Minnesota
corporation, having its office and place of business in Minneapolis. Its business is
that of a job shop which specializes in commercial welding and metal fabricating.
During the preceding representative year, Respondent furnished over $500,000 worth
of goods and services to two establishments, each of which annually ships over $50,000
worth of goods out of State. Also during that year Respondent received over $100,000
worth of materials that originated outside the State. It is not disputed, and I find,
that Respondent is engaged in commerce within the meaning of the Act, and that it
will effectuate the policies of the Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATIONS INVOLVED
The Charging Party, Sheet Metal Workers Local Union 547, affiliated with Sheet
Metal Workers International Association , AFL-CIO ( as is not disputed ), is a labor
organization within the meaning of the Act.
The Party in Interest , Operations Communications Committee ( as Respondent dis-
putes but as is hereafter concluded in the portion of this Decision specifically con-
cerned with that issue ), is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The repiesentahon election and the issues in this pioceeding
The Union, after unsuccessfully requesting on June 4, 1964, recognition as a bar-
gaining representative on the basis of authorization cards previously signed by a
majority of Respondent's production and maintenance employees, filed a petition for
certification under Section 9(c) of the Act. A consent election was held on July 2,
in which the tally was 11 for the Union and 12 against. The Union filed objections to
the election on the ground that Respondent had engaged in impioper conduct, which
affected the result. The Regional Director, after investigation, issued his report find-
ing that Respondent engaged in conduct which interfered with the free choice of the
employees. He accordingly set the election aside and ordered a rerun. The Union,
invoking the doctrine of Bernel Foam Products Co, Inc., 146 NLRB 1277, chose not
to have the rerun, and with the Regional Director's approval, withdrew its 9(c)
petition and asserted its rights on the basis of its card majoiity on June 4, when
Respondent rejected the Union's request for recognition. The General Counsel, like-
wise invoking the Bernel Foam Products doctrine, alleges that in rejecting the Union's
bargaining request, Respondent violated its obligation to bargain with the Union
under Section 8(a)(5) of the Act, and that the conduct which invalidated the elec-
tion consisted of unfair labor practices that demonstrated that Respondent's purpose
in refusing the bargaining request was to cause the employees to abandon their sup-
1 The charge and first amended charge were respectively filed on July 8 and August 24,
and the complaint issued September 10, 1964
2 The stenographic transcript of testimony is corrected , so that at page 624, line 11,
"to understand it" should read "to so understand If.,,
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port of the Union. Respondent contends that its rejection of the Union's bargaining
request was in good faith and disputes that its actions (which are largely conceded)
were unfair labor practices.3
B. The Union's organization of the employees and Respondent's rejection
of its bargaining request
Sometime in mid-May, Desmond Zahn, an employee of Respondent, called at the
Union's office and left the message that he wished to have the Union organize him
and his fellow employees. Kenneth L Johnson, the Union's business representative,
then called Zahn and explained that he would communicate with the employees by
mail. Zahn brought to the union office a list of names and addresses, and from then
on until the Union received the 15 signed authorization cards which are the basis for
the claim of majority, the Union's contacts with the employees were by mail only .4
On May 19, the Union mailed to the various employees at their homes an authoriza-
tion card, a letter asking them to fill out and sign the card and mail it back to the
Union, and a pamphlet devoted to showing the benefits of union representation.
(These will be detailed in the later discussion of the legal consequences of Respond-
ent's refusal to bargain.) By May 26, 15 of the employees filled out and signed the
authorization cards and mailed them back to the Union. On the same day, May 26,
the Union mailed to the employees a second letter notifying them that it would hold
a special meeting at the Union's headquarters on Tuesday, June 2, at 7 p.m., in order
to "answer all your questions about this Union, collective bargaining and the process
of a Union election conducted by the United States Government " The letter also
asked that those "who ha[d] not yet sent [their] authorization card back do so now so
we can make it 100% for the Union." Enclosed with the May 26 letter was a flyleaf
espousing the benefits of union representation and saying in part "So we may repre-
sent you, you must fill out the attached card, drop it in the mail box and the Union
will do the rest."
Before that meeting was held, Bauer was given a copy of that letter and its enclosure
by employee Steve Swiderski.5 As later related in more detail, Bauer, on Tuesday,
June 2, shortly before 6 p.m , called the employees to a meeting, in which he used the
Union's letter and pamphlet as the point of reference for his later-described talk in
opposition to the Union.
3At the hearing the General Counsel added to the complaint a new 8(a)(1) spec;fica-
tion based on the conduct of John Schauls and Frank Barnes, two alleged supervisors,
in initiating and sponsoring, several months after the election and shortly after the com-
plaint herein issued, a petition repudiating the Union as bargaining representative.
'The unit consisted of Respondent 's production and maintenance employees . Whether
their number was 21 ( as the General Counsel and the Union contend) or 23 ( as the Re-
spondent contends ), the Union would appear to have written to 18 in that group. Of
the 3 who are conceded by General Counsel and Union to be rank-and -file employees
and properly in the unit of 21, as they claim , 2, James Lemmer and William Thomsen,
were new employees , whose addresses Zahn did not have, and the third, Steve Swiderski
(whom Bauer described as a longtime personal friend of his), the Union thought to be
foreman over the 2 other persons then on the night shift-a matter mooted by the
discontinuance of that shift.
The two, Schauls and Barnes , who are alleged to be supervisors and thus claimed to be
not properly in the unit, are implicated in the postcomplaint activity which is the basis
of the 8 ( a)(1) allegation added to the complaint at the hearing ( supra, footnote 3).
Their status is considered and determined in the portion of this Decision dealing with
that allegation ( Section D , infra. ) Though the Union from the outset regarded these
two as supervisors, nevertheless , as a "comprise" and in order to expedite the election
in the RC proceeding , it consented to their names being included in the list of eligible
voters. On the reasonable assumption that they were among the 12 who voted against
the Union, rather then among the 11 who voted for it, their ballots apparently accounted
for the 12 to 11 tally against the Union, as opposed to what without them would have
been an 11 to 10 tally in the Union's favor (The Union forwent its standing to chal-
lenge their ballots as a result of having consented to their being included in the eligibility
test.)
5 This was the personal friend of Bauer whom the Union had not included in its mail-
ing list in the belief that he was the night shift supervisor but who, as is not now dis-
puted, is a rank-and-file employee properly in the unit ( supra, footnote 4). Swiderski
got it from an employee who had received it in the mail from the Union.
BAUER WELDING & METAL FABRICATORS, INC. 957
Bauer released the group 10 minutes before the hour for which the Union had
called its meeting, and numerous employees who had intended to go to it did not do
so because they believed it was now too late. Bauer followed up his talk of June 2
with talks to the employees individually and in groups beginning June 3 and continu-
ing throughout the month. In these talks, as later detailed, Bauer indicated that the
selection of the Union would result in the discontinuance of existing benefits, and he
announced his intention to foim an employee committee as a direct line of com-
munication between him and the rank-and-file concerning grievances and problems
on the job instead of through the management personnel intermediate between him
and them, as theretofore. (This portended the Operations Communications Com-
mittee, which Bauer instituted shortly afterwards.)
Thus, when the Union made its bargaining demand on June 4, Respondent was
already well launched on its campaign against the Union. At 11 a.m., on June 4,
Kenneth Johnson, the Union's business representative, announced himself at the
reception desk and asked to see Bauer. Bauer came out, and Johnson introduced
himself and an official of the State Labor Council, who was with him. Johnson told
Bauer that the Union represented his employees for the purpose of collective bargain-
ing and that he wished to discuss it with him. Bauer retorted he was busy, and
without further comment, left his two visitors behind. Later the same day, June 4,
Johnson sent Bauer a letter by certified mail special delivery, repeating his bargain-
ing request. In that letter, Johnson told Bauer that if he had "any doubts about the
[Union's majority]," he would "extend to [Bauer] the opportunity to have the signed
authorization cards checked by a neutral person or public official against your payroll
records." Johnson concluded by saying that if he did not hear from Bauer by noon
Friday, June 5, he would assume that Bauer "again rejected [the Union's] request for
recognition." Bauer did not reply.
Bauer testified that when Johnson called, he had been with a customer. Even if
one were to credit this statement, it did not explain the abruptness with which Bauer
cut Johnson off, with no suggestion that he would see Johnson when he was not "busy"
or of when that might be, or his failure to reply to Johnson's letter. At the hearing,
Respondent conceded the authenticity of the signatures of all 15 cards, and the only
reason Bauer, as a witness, gave for having assertedly doubted the Union's majority
was that he thought conditions in his plant so satisfactory that he could not see why
his employees would want a union. There was no explanation of why, in that case,
Bauer did not avail himself of the proffer to have the cards checked against Respond-
ent's payroll records. Further relevant to the claim of good faith were the counter-
measures of Respondent, treated below, in an effort to cause the employees to abandon
the Union.
C. Bauer's campaign against the Union
1. The timing of the meeting of June 2 in relation to the meeting
scheduled by the Union for the same day
As stated earlier, a copy of the Union's May 26 letter and pamphlet came into
Bauer's possession sometime before the meeting that the Union announced, for Tues-
day, June 2 at 7 p.m. (Bauer testified he got these on June 1.) At 5:45 p.m on
June 2, or about 15 minutes before the end of a 10-hour shift put in by the employees
on that day, they were summoned to a meeting with Bauer on the lower floor, and
ordered not to clock out or go home. This was their first notification that Bauer
planned to meet with them. When the employees assembled at about 5-50, Bauer
said he heard "through the grapevine" that they were about to go to the union meet-
ing, and that he "would like them all to go " Bauer nevertheless detained them
until 6-50 behind locked doors-a procedure not theretofore employed. Though
Bauer had indeed caused food to be brought in for them (Respondent paid for this
and also paid them at overtime rate for keeping them there), nevertheless, as earlier
stated, employees who during the day had indicated an interest in going to the union
meeting did not do so in the belief that they would not make it in time (The union
hall is about 20 minutes away from the plant.) The timing of the meeting called by
Bauer, its duration, and the manner he detained them there, and the less than
hospitable attitude he showed toward the prospects of their being represented by a
union, as later described, were hardly calculated to lend conviction to his opening
statement that he "would like them all to go" to the union meeting. As Bauer testi-
fied, Swiderski (the employee who gave Bauer the Union's letter and leaflet of
May 26) is a longtime personal friend of Bauer's. As such he would be expected to
be reasonably familiar with Bauer's wishes concerning the union meeting. Bauer
testified that Swiderski told him he did not have "too much to worry about," because,
as Swiderski was informed, only three employees showed up at the union meeting,
thereby indicating "that there were not any fellows interested in the Union." Bauer's
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actions had the "natural or foreseeable consequence" ( The Radio Of icers' Union of
the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v.
N.L.R.B ., 347 U.S . 17, 52 ) of aborting the Union 's meeting in the manner it did.
(Because of the small turnout , the Union disbanded the meeting and decided it would
take up the matters mentioned in its notice by later visits to the employees ' homes.)
The fair inference derived from the facts as a whole is that this also was its intended
consequence.
2. Bauer's statements to the assembled employees at the June 2 meeting
Bauer spoke to the employees from notes he testified he began to prepare when he
got the union notice, and he also added illustrative matter without reference to notes.
There is not much variance between his version and that of the employees. In regard
to such variances as there were , Bauer conceded that it was "possible" that he said
what the employees attributed to him or that , in any event , he had wanted them to
understand it in the way they testified they had understood it He told the employees
of his friendship with a "retired " but otherwise unidentified union official , who had
informed him of "sweetheart contracts " between employers and unions . Bauer told
the employees that he "could negotiate one just as well as anybody ," and when he did
the employees would be none the wiser . 6 Turning his attention to Johnson , the busi-
ness representative of the Union , Bauer told the employees he "could tell [them] a
few things " about Johnson but he would not. Bauer indeed testified that:
I [Bauer] asked, did any of you fellows know about Kenneth Johnson Do you
want to have this man represent you? I said, I do know of him but I will not
mention anything about it. [Emphasis supplied.]
Bauer admitted he had no basis for this innuendo , for he neither knew Johnson nor
anything about him . He testified that all he knew about him even now was that in
mid-June , an official of a competing company in the area, that has or had a contract
with the Union , told him that when Johnson "makes up his mind , his mind is made
up." Bauer then changed his testimony , saying that he had received this description
of Johnson several months before June 2. Whatever the credence merited by Bauer's
correction of his timing to a period when he would have had no reason to be interested
in or to talk about Johnson , Bauer could hardly have thought that description, even
if it had been given to him before June 2, supported his innuendo concerning Johnson,
which had particular point in Bauer 's vaunting his ability to make a "sweetheart con-
tract" with a union.
Bauer devoted the remainder of his talk to stressing the benefits the employees now
enjoyed without collective bargaining Referring to coffee breaks and a week's sick
pay, Bauer told the employees that if they chose to bargain through the Union they
would have to "start from scratch" concerning them Referring to Respondent's cur-
rent policy, under which employees , when their particular work "runs out," are trans-
ferred to other available work, Bauer stated that if the Union came in the work would
be "stratified" so that these employees would be laid off instead of being assigned to
other work. Referring to the profit-sharing plan (called the FSOP plan), under which
employees supplemented their regular hourly earnings by quarter -yearly bonuses on
completed jobs on which they worked , Bauer said that if the Union came in the
FSOP plan would be discontinued .? Bauer told the employees the Union could not
e Bauer admitted that he introduced the subject of "sweetheart contracts" and told the
employees that "a lot of locals are working for the Company instead of the men." How-
ever, he denied saying he could negotiate one. There is little question that that is what
he conveyed . Demetre, one of the employees who testified Bauer said he could make
such a contract , was not any longer a supporter of the Union when he testified He had
served on Bauer's Operations Communications Committee , and was among those who signed
the union -repudiating petition a few weeks before the bearing in this case.
4 Some employees derived the impression that Bauer, also: ( a) said overtime would be
eliminated if the Union came in ; ( b) promised that the bonus under the FSOP plan
would go up to $1 an hour ; and (c ) for the first time guaranteed that employees of
3 years or more of continuous service would have work 52 weeks a year. I find the
evidence on each item inconclusive . As to ( a), it does not appear that Bauer threatened
outright or by implication that he would eliminate overtime in the event the Union came
in. As to (b) and ( c), the credible evidence indicates that Bauer had earlier discussed
these subjects at the Respondent 's annual banquet for the employees in April , before the
advent of the Union . At the April banquet , Bauer told the employees that their FSOP
bonus for that quarter year was low , but that with increased productivity he did not
see why it could not come up to $1 an hour, and he also told them that there was
BAUER WELDING & METAL FABRICATORS, INC. 959
secure any benefits for them, that they would have to "start from scratch" on benefits
that now exist, and he asked them, "How long could you people afford a strike?"
3. The meeting with the employees individually and in groups
beginning June 3
From June 3 until about the end of that week, Bauer approached the employees at
the work places individually. After this he assembled them in groups of three. He
repeated, in substance, what he told them at the June 2 meeting: that if they selected
the Union as their bargaining representative they would have to "start from scratch"
concerning existing benefits, and that it would also mean the abandonment of the
profit-sharing (FSOP) plan and of the existing system of transferring employees to
other work when their work "ran out." Bauer also portended the formation of the
Operations Communications Committee, which he put into effect on June 9. He told
them that the existing system under which the grievances and problems of the employ-
ees were funneled to him through the management personnel and his policies back
through them to the rank and file was not reliable, and that he would form a com-
mittee of employees, in order to establish a direct line of communication with the
employees concerning their grievances.
Bauer told various employees about the Union's bargaining request, showing them
also the Union's letter of June 4. Bauer told the employees that "he was too busy to
talk to [the Union's representative]," and so did not do so. Bauer showed another
group photostatic copies of the payroll checks, and told them that the signatures on
them did not match those on the authorization cards. At the hearing, as previously
stated, Respondent conceded the genuineness of the signatures, and Bauer admitted
that when he made this statement to the employees neither he nor anyone on his
behalf had seen the signatures on the authorization cards. Also, since he had ignored
the Union's proffer to submit the cards for verification against Respondent's payroll
records by a neutral person or public official, Bauer did not have or claim at the
hearing to have any basis for his telling the employees that the signatures on the
cards did not match those on the paychecks. Bauer testified that when he received
the Union's letter of June 4, he called in a labor relations consultant (seemingly
neither a lawyer nor connected with counsel representing Respondent at this hearing),
and that together they decided to ask the Regional Office to show the cards in the hope
of unearthing discrepancies between the signatures on the cards and on the payroll
checks. Bauer persumably conveyed this to his newly formed Operations Communi-
cations Committee, for as Bauer testified, Al Danielson, who was on that Committee
from the outset, informed Bauer that if the signature on his authorization card should
not match that on his paychecks, his true signature was on the card, because his wife
signs his paychecks. The labor relations consultant asked the Regional Office to show
him the authorization cards in order to verify whether the Union had the 30 percent
"showing of interest," which the Board, in the normal instance, administratively
requires to justify the expense of holding an election. This was refused under tradi-
tional doctrine that the "showing of interest" is a matter of administrative ascertain-
ment, and not a litigable issue in a representation proceeding. The net of the above
is that Bauer's intimation that the signatures on the cards had been checked and
found lacking in authenticity, as in the case of his innuendo on June 2 reflecting on
Business Representative Johnson's integrity, were made with knowledge that he had
no facts to support what he implied to the employees in either instance.
4. The newly instituted policy in respect to holidays falling on a weekend
Until June 1964, it has been Respondent's policy not to pay the employees for legal
holidays which fell on a Saturday or Sunday. On June 5, when the employees were
paid for the preceding week ending May 29, they were also paid for Memorial Day,
May 30, which fell on Saturday. (Pursuant to the newly instituted policy, they were
also paid for July 4, which likewise fell on Saturday.) Bauer attributed this to the
enough work to enable him to guarantee employees with 3 or more years of service
a work year of 52 weeks . The evidence satisfies me that he said substantially the same
at the June 2 meeting.
At the June 2 meeting also, Bauer read off from the applications of each of the em-
ployees parts of their previous employment history showing where they had been laid off
for lack of work-in most instances in plants known to have been unionized . Some em-
ployees resented this as an invasion of their privacy . Bauer had thereby sought to draw
an invidious contrast between his and other plants on the score of the steadiness of the
work. Whatever one's views concerning its taste , Bauer did not by that conduct exceed
what was legally permissible.
960 DECISIONS OF NATIONAL LABOE. RELATIONS BOARD
fact that during Christmas week of 1960 the employees complained that they were
not paid for Christmas Day, which in 1960 had fallen on a Sunday, and that he was
now, in June 1964, persuaded of the justice of that complaint. Had this last been the
reason, Bauer would expectably have rectified the omission at the time the employees
made the complaint in 1960. Or at the very least, he would have paid them for
New Year's of 1961, which too fell on a Sunday. The action in June 1964, coming
hard on the heels of the Union's entry into the picture, can hardly be divorced from
Bauer's manifest interest and purpose (Texas & New Orleans RR. Co. v. Brotherhood
of Railway & Steamship Clerks, etc, 281 U.S 548, 584), as shown in his address on
June 2 and in his individual talks beginning the next day, to bring home to the employ-
ees that benefits in their working conditions would be achieved only through Respond-
ent and not the Union. In the context in which it occurred, such was its "natural or
foreseeable consequence" (Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 52), and,
when taken in total context, its intended one.8 -
8 The General Counsel claims that a like purpose motivated Respondent's granting two
other benefits-namely (a) individual wage raises to more than the usual number of
employees, and (b) a marked increase in the size of the employees' quarter yearly bonus
checks under the FSOP plan. After careful consideration, I conclude that the evidence
does not establish the General Counsel's position.
As to (a), Respondent has no policy of general raises and it grants them solely on the
basis of individual merit. The General Counsel claims that a table setting forth the
changes in the hourly rates of the individual employees since 1959 (Respondent's Exhibit
No 6) shows a more than usual amount of such increases granted beginning June 1964,
and he asserts that this was a belated appreciation of the employees' "merit" inspired by
the advent of the Union. On that score the General Counsel also attaches an invidious
significance to the fact that Zahn (the employee whose visit to the Union touched off
the Union's campaign) got no raise in 1964, although in the 5 years of Zahn's employ-
ment with Respondent, he received at least 1 raise every year (10 in all, 7 during his
first 2 years). On the other hand, Harold Skiba, who along with Zahn, was among the
three employees who showed up at the 'union meeting on June 2, received eight raises in
the 3 years he worked with Respondent Skiba received three such raises in 1964,
two the early part of 1964 and the third in August. I fail to discern a pattern that
supports the General Counsel's claim The fact that Respondent granted these raises
unilaterally without consulting the Union is relevant not to this issue but to the nature
of Respondent's bargaining obligation under Section 8(a)(5), assuming that Respondent
was under a duty to bargain with the Union on the basis of its card majority. That issue
will be discussed in its proper place.
As to (b), the individual quarterly bonus checks of the employees under the FSOP
plan beginning with the second quarter of 1964, and the aggregate bonus of all the em-
ployees during these two quarters of 1964 were several times higher than the aggregate
during the corresponding quarters of 1963. Because the formula for computing the
bonus is not understood by the employees, the General Counsel and the Union contend
that it is possible for Respondent to "rig" the computation, and base the claim that
Respondent did so here for antiunion purposes on the fact that the FSOP bonuses since
the advent of the Union increased so markedly. Undermining that position is the fact
that the aggregate bonus for the second and third quarters of 1964, though much higher
than in 1963, is only slightly higher than for the corresponding quarters of 1962. This
supports Bauer's assertion that the FSOP formula is a constant one, but that the amount
realized thereunder is variable, and depends on (1) the quantity of Respondent's sales,
and (2) the productive efficiency of the employees in completing a given job. The bonus,
which is called the FSOP (or "Fair Share of Production") is the reward the employees
who worked on a completed job earn as a group for having consumed less hours in turn-
ing out the job, and thereby having done so at a lower actual "labor cost" than the
"labor allowance." This last denotes the amount that (under a formula too involved for
restatement here) has been "allowed" as the projected labor cost for that job. The
difference, or saving, in the actual labor cost of the finished job below the projected cost,
or "labor allowance" goes to the employees as their FSOP bonus, and it is divided up
among them prorate, according to the number of hours each had put into the completed
job. Bauer testified the employees received larger FSOP bonuses beginning the second
quarter of 1964 because Respondent' s sales had increased (thereby adding to the number
of jobs on which to realize FSOP bonuses) and the employees had stepped up their
productivity so that they as a group earned higher FSOP bonuses on these various jobs.
The evidence does not support the General Counsel's contention to the contrary. The
fact that the employees do not understand the formula may well make it appropriate in
collective negotiation to seek to reduce it to more understandable terms. But that is an
altogether different matter from the imputation of irregularity based only on the increased
size of the bonuses, which I conclude the evidence does not support.
BAUER WELDING & METAL FABRICATORS, INC. 961
5. The material on the bulletin board
In its campaign against the Union, Respondent also made use of the bulletin board.
Respondent posted on it matters that harked back to Bauer's question to the employ-
ees on June 2 of "how long" they could "afford a strike." These were pamphlets and
news clippings depicting strikes and labor troubles, to which Respondent appended
the comment, "This is unionism; is this what you want?" And it added the caveat
that during a strike the employees were subject to loss of their jobs through being
replaced. Respondent also posted a facsimile of a Board ballot drawn by hand with
an "X" marked under the "NO" column. Finally, Respondent announced on the
bulletin board that it had instituted its own method for the employees to deal with
management concerning grievances and working conditions. This is treated in the
next section.
6. The Operations Communications Committee
Bauer testified that in implementation of his statement to the employees that he
would initiate a direct communication with them concerning their "problems" in
order to avoid the distortions that he ascribed to the existing made of communication
through the other management personnel, he drafted what he termed the "Operations
Communications Committee," and held its first meeting on June 9. The persons
designated by Bauer to serve on the Committee were summoned to meet with Bauer,
and were told by either the supervisor summoning them or by Bauer himself that they
were members of that Committee. At that first meeting, Bauer told the members that
the Committee was a two-way channel of communication between him and the work-
ing force regarding "what was going on in the shop, grievances, machinery, wages, or
anything like that"; and that the members were to report the grievances of the employ-
ees to him at the meetings of the Committee and he would in turn tell them the posi-
tion of management to report back to the employees. (Zahn first learned of the Com-
mittee's existence when Bjork, a member of it, who attended the first meeting, told
Zahn that "if [he] had any grievance or anything, '[he] should tell him, and he would
relay it on down to the meeting of the committee.") Sometime in June, Respondent
posted the notice of the formation structure and purpose of the Committee, as follows:
"OPERATION-COMMUNICATIONS"
Purpose: Management to Men-Men to Management
1. How to have better understanding of policies.
2. How to make worthwhile improvements.
3. How we can earn more money.
4. How to clear up misunderstandings.
How? 3 shop men and Donald K. Bauer on committee.
When9 To meet once a week to start-after less often.
Why9 See above listing under "purpose." It is up to the 3 shop men to con-
vey to other shop men what we have discussed and it is up to me to convey to
management also what we have discussed. We don't want issues twisted around
to just opposite of what we have discussed. It is up to all shop men to discuss
their problems, which cannot [emphasis supplied] be handled by going thru
regular channels, with one of the men on this committee. The committee men
will bring this problem to the next meeting. There will be no lead man or
management men on this committee . We are choosing the men in alphabetical
order by last names We will post names of men that are on the committee.
The men that are on the committee now are C. Bjork, A. Danielson and
B. Demetre . 3 men on committee for 4 weeks, rotate one man last month-as
follows:
Ist Period 2nd Period 3rd Period 4th Period
C. Bjork A Danielson R. Demetre E. Kjella
A. Danielson R. Demetre E Kjella B Kusmider
R. Demetre E. Kjella B Kusmider F. LaPointe
Bauer presided and took the notes at each of the meetings. These were held on
company premises and company time, for which those attending were paid their regu-
lar wages. The matters dealt with covered subjects about which the Committee
members themselves complained or had received complaints from fellow employees.
They included work-facilitating items, which, apart from their convenience, expedited
the job and accordingly were calculated to enhance the employees' bonus earnings
under the FSOP plan (supra, footnote 8). Thus, the Committee reported to Bailer
that the employees wanted Respondent to supply them with a worklift, an extension
cord, punching units for the drill presses, and airlines to help the welders clean their
equipment . The Committe also communicated to Bauer the employees ' wishes for
206-446-66-vol. 154-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other items calculated to add to the comfort and convenience of the work, such as
repairing a water cooler and making the work gloves more accessible. Bauer dis-
cussed all of these matters with the Committee, considered them and acted favorably
upon them. The Committee also inquired concerning the reason an employee had
been discharged. Bauer explained the reason to the Committee, and the members
accepted the explanation.
7. Conclusions concerning violations
a. Interference, restraint, and coercion
The opposing briefs reflect a rather typical polarity of viewpoint-the proponents
of the complaint (the General Counsel and the Union) reading into all of Respond-
ent's action an unwarranted invasion of the employees' rights in violation of Section
8(a) (1), and Respondent countering this by seeing in all of its statements and actions
the expression of "views, arguments and opinion" within the immunity of Section
8(c). The line between the two is not always clearcut, and the various actions must
be viewed in total context. As was stated in Efco Corporation, 150 NLRB 1505, at
1517:
To be kept in mind ... is that under review here are not disjoined events occur-
ring "individually and in isolation," but a course of conduct, in which the com-
ponent parts are viewed "cumulatively and compositely as well, in arriving at
[the proper] inferences and conclusions." (The Canyon Corp. v. N.L.R.B., 128
F. 2d 953, 955 (C.A. 8).)
In this case, as is also not untypical, each side sees every element in the totality
deriving its character from items favoring their respective positions-the proponents
feeling those those aspects of Respondent's conduct which unlawfully impinged upon
the employees' freedoms colored the other statements which, standing alone, might
have enjoyed immunity under 8(c), and Respondent, on the other hand, seeing those
aspects of Respondent's conduct which are within that immunity as neutralizing every
other facet of its conduct. Neither position has full legal accuracy. Where Bauer
merely compared the employees' existing benefits with those in a plant under union
contract (such as, for example, the items summarized in footnote 7, supra), Respond-
ent stayed within the confines of "views, arguments and opinion," sheltered by Section
8(c). On the other hand, when Bauer told the employees that if they chose a union
the existing benefits of coffee breaks and a week's sick pay were matters concerning
which they would have to "start from scratch," Respondent, as did the employers in
Suprenant Manufacturing Co. v N.L R.B., 341 F. 2d 756 (C.A. 6) and in the cases
cited by the Court.
. conveyed the message that a consequence of the selection of the union would
be the discontinuance of existing benefits and a "start from scratch," the coercive
effect of which was plain ... this constituted a violation of Section 8(a)(1) of
the Act. N.L.R.B. v. Marsh Supermarkets, Inc., supra, 327 F. 2d 109, 111....
C.A. 7th, cert. denied, 377 U.S. 944. Hendrix Manufacturing Co. v. N L.R B.,
supra, 321 F. 2d 100, 105.... C.A. 5th. A fortiori was it a violation of 8(a) (1)
to have told the employees outright that with the advent of the Union, the FSOP
plan, which accounted for a substantial increment of their wage, would go out of
existence altogether.
Other actions and statements have an equivocal aspect and thus derive their char-
acter from the total context taken "cumulatively and compositely." In the context of
the warning that if the Union came in vital existing benefits would be eliminated, and
that with a union they would have to negotiate "from scratch," Respondent's gratuitous
interjection of the element of strikes, with the pointed question of "how long" they
could "stand" one, and of the replaceability of the employees in the event of a strike
was, in effect, conveying to them that Respondent would take an intransigent posi-
tion toward the Union even in respect to maintenance of existing benefits, which
would force them into strikes, causing them loss of earnings and culminating ulti-
mately, in their replacement, and loss of their jobs Compare Surpienant Manufac-
turing Co. v. N.L.R.V., supia, (that the existing benefits were matters that only
management and "nobody else could give them, that they would be negotiated, . . .
that management were hard people to baigain with, and that strikes did not bother
them.") and Senco Manufacturing Corp., 141 NLRB 1306, 1308 The following addi-
tional conduct, taken in total context, is also held to have been an unwarranted inva-
sion of the employees' rights under Section 7-namely, Bauer's summoning the
employees to a meeting after hours, timed and arranged to impede the attendance of
BAUER WELDING & METAL FABRICATORS, INC. 963
the employees at the meeting which Bauer knew the Union had called, 9 Bauer's
falsely implying that he had derogatory information concerning the character of the
Union's business representative, the implication of the latter's corruptibility here
receiving added point in Bauer's claim that he too can make a "sweetheart contract"
with a union; and Respondent's granting a new benefit to the employees in the form
of a changed policy in respect to pay for a legal holiday falling on weekends, as an
inducement to abandon the Union.10 Also interfering with the employees' rights
under Section 7 was its introduction of its own of mode of employee representation,
in the form of the Operations Communications Committee, discussed below.
b. Formation and domination of the Operations Communications Committee
Since Respondent initiated and formed the Committee and determined its composi-
tion, Respondent does not dispute that it dominated the Committee. Respondent
disputes only that the Committee is a "labor organization." Its grounds are, in
essence, a throwback to contentions met by the Supreme Court in N.L.R B. v. Cabot
Carbon Company and Cabot Shops, Inc., 360 U.S. 203. Thus, Respondent asserts
that "there is no evidence in the record even suggesting there was any discussion at
meetings of the ... Committee relating to grievances, hours of employment, wages or
conditions of work." Respondent characterizes the matters dealt with at the Com-
mittee meetings with Bauer as but "production problems." The problems included
matters that concerned the comforts and conveniences of the job, as well as potential
bonus earnings under the FSOP plan, and as such were "conditions of work." And
the Committee's overtures to management in order to have these "problems" cor-
rected were "grievances" even if (to use Respondent's further terminology) they were
made as "suggestions" to the employer. Northeastern Engineering, Inc., 112 NLRB
743, 749; West Texas Utilities Co. Inc. v. N.L.R.B., 206 F. 2d 442, 446-447, cert.
denied 346 U.S. 855; Thompson Ramo Wooldridge, Inc, 132 NLRB 999, 994 enfd.
as modified 305 F. 2d 807 (C. A. 7). Further, Respondent's sweeping assertion that
there is "no evidence" (etc.) is refuted even under its own truncated conception of a
grievance by the undenied fact that the Committee took up with Bauer the reason for
the discharge of an employee. All of this was pursuant to the very purpose that Bauer
indicated in the notice that he posted and made explicit to the Committee when he
summoned its members-that they were to be the medium for taking up grievances
of the employees directly with him. In the language of the Supreme Court in Cabot
Carbon Company, et al., 360 U.S. 203, at 213:
It is therefore as plain as words can express that [this Committee] existed, at
least in part, for the purpose "of dealing with employers concerning griev-
ances ...... This alone brings [this Committee] squarely within the statutory
definition of "labor organizations."
It is accordingly found and concluded that the Operations Communications Com-
mittee is a labor organization and that by dominating its formation and administration
and supporting and assisting it, Respondent violated Section 8(a)(2) and (1) of the
Act.
D. The initiation and sponsorship in October 1964 of the petition
repudiating the Union
1. Sponsorship by Schauls and Barnes
In October, 1964, after the complaint in this case was issued and a few weeks before
the hearing, John Schauls and Frank Barnes initiated, sponsored, and solicited signa-
tures to a petition reading:
We the undersigned, do not want or desire to have the Sheet Metal Workers
International Association Local No. 547, or any other union to represent us. We
believe we can do our own negotiating with Mr. Donald Bauer.
Schauls conceived of the steup and Barnes, whose office adjoins that of Shop
Superintendent Biggin, prepared it. The testimony concerning their activity in spon-
soring the petition is undisputed Schauls conceded that he personally solicited and
procured signatures to it. He was particularly importunate with the welders (over
whom Respondent classifies him as the "leadman," but the General Counsel contends
0 Kelco Corporation , 79 NLRB 759, 763, 766-767, 786, enfd. as modified 193 F. 2d 642
(C.A. 4) ; Pacific Powder Company , 84 NLRB 280 ; cf. S. W. Dixon, d/b/a U.S. Trailer
Manufacturing Co., 82 NLRB 112, 121.
10 N.L.R B. v. Exchange Parts Company, 375 U . S. 405.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be is the foreman or supervisor, a matter treated in the next subdivision). When one
employee persisted in his refusal to sign, Schauls reminded him that he was the
newest welder and said that his refusal must indicate that he does not like his job.
Schauls steered other employees to Barnes' office and they signed the petition there
Two other employees, who like all the employees, ordinarily receive their checks from
their foreman, were told, one of them by their foreman (Al Handel of the fabricating
department) and the other by Barnes, that their checks were in Barnes' office,
and when they went there, Barnes handed them their paychecks and at the same time
also offered them the petition for signature. Thirteen of the rank-and-file employees
signed the petition, including 9 of the 15 who in June had signed authorization cards-
2. Imputability to Respondent
a. Criteria
Assuming Schauls and Barnes are supervisors or persons whose functions would
reasonably cause the employees to regard them as acting for and on behalf of
management, the above described activity on their part would normally be imputable
to the employer as an 8(a)(1) violation. E g. Somerset Classics, Inc. and Modern
Mfg. Co., Inc., 90 NLRB 1676, 1677, enfd. 193 F. 2d 613 (C.A. 2), cert. denied 344
U.S. 816; The Red Rock Company, etc, 84 NLRB 521; H & H Manufacturing Com-
pany, Inc., 87 NLRB 1373. However, the Board has made an exception where by
agreement of union and the employer, such a person, although he is a supervisor or
other management functionary, has been included in the unit in the election and has
voted in it. As was stated earlier (supra, footnote 4), although the Union had not
included Schauls and Barnes in its correspondence because it regarded them as
supervisors, nevertheless, in order to expedite the election, the Union "compromised"
by having them included in the eligibility list. The Board stated in Montgomery Ward
& Company, Incorporated, 115 NLRB 645, 647, enfd. 242 F. 2d 497 (C.A. 2) cert.
denied 355 U.S. 829, that though the fact that a person has been included in the
eligibility list in the election does not preclude a finding in the unfair labor practice
that he is a supervisor, nevertheless the employer is not responsible for the statements
of a supervisor in such an instance because employees would in that instance con-
sider the supervisor as a "fellow employee," whose statements would not "tend to
intimidate them." See also Hy Plains Dressed Beef, Inc., 146 NLRB 1253. In this
case, however, the impression the employees would normally derive from Schauls
and Barnes having been permitted to vote in the election would be offset by Bauer's
having excluded them from the Operations Communications Committee and the
reasons he gave for it. In the notice (previously reproduced) Bauer stated that "there
will be no leadmen or management men on this committee." This by its terms
excluded Schauls under Respondent's own classification of him as a "leadman" As
to Barnes, at one of the earliest meetings of the Committee, Bauer told its members
that Barnes and Foreman Handel (whose supervisory status is not in dispute) were
ineligible because if they were on the Committee, it would be inconsistent with Bauer's
purpose in forming the Committee-which was to have a direct communication with
the rank-and-file concerning their problems without the intercession of the repre-
sentatives of management intermediate between him and the rank-and-file. (Except
for the exclusion, Barnes and Handel, because of their initials, would ordinarily have
been reached in alphabetical order for membership on the Committee during the
"1st" and "2d" periods. This presumably explains why Bauer specifically named
Barnes and Handel as -ineligible without also naming Schauls, for Schauls would not
at that time have been reached in regular alphabetical order in any event.) The
Committee continued to meet after the election. The ineligibility of these "leadmen
or management men" for membership on the Committee under the subsisting rationale
of Bauer himself that their positions allied them more with management than rank-
and-file would thus overcome whatever impression the employees might have derived
the other way from their having voted in the election. This takes us to the actual
function and true status of these two persons.
b. The status of Schauls and Barnes
(1) John Schauls
Schauls' duties as "leadman" of the welding department correspond to those of
Handel as foreman of the fabricating department, who, as indicated, is concededly a
supervisor. Each is directly responsible to Shop Superintendent Biggin. As does
Handel in the fabricating department, Schauls assigns the work of the welders, gives
them their paychecks, and is the one whom the employees of his department asks
BAUER WELDING & METAL FABRICATORS, INC. 965
for time off. Like Handel, Schauls has full discretion to grant time off for part of a
,day, but where the employee asks for more, Schauls must first check with Superin-
tendent Biggin. So far as the employee is concerned, however, it is Schauls who
grants or denies the requested leave in either instance. Schauls administers the tests
to applicants for welders' jobs. Superintendent Biggin testified that he consults and
attaches weight to the opinions of Handel and Schauls in respect to every personnel
action regarding employees in their respective departments-in respect to hire, promo-
tion, raises, discharge, or other discipline. Handel's department is larger than that
of Schauls (15 in fabricating as against 5 or 6 in welding) and so that proportion of
time Handel devotes to supervision as against straight production work is greater than
that of Schauls. However, the rank-and-file employees who testified in this case,
welders and nonwelders alike, affirmed that Schauls and Handel exert identical respon-
sibilities toward the men in their respective departments and are regarded and spoken
of as foremen of their departments. Schauls would seem as clearly to meet the defini-
tion of a supervisor under Section 2(11) of the Act as does Handel, and it is found
-that he is one.
2. Frank Barnes
Barnes, as previously stated, occupies an office adjacent to that of Superintendent
Biggin, they being connected by a "pass through" window which is generally open.
Barnes has a variety of functions, which Superintendent Biggin described as "dis-
patcher," "shipper," "receiver" and "light maintenance man." Barnes prepares ship-
ping papers and arranges for transportation by company truck or common carrier
and has charge of the shipping room. In the performance of his shipping function,
Barnes has the assistance of a shipper and a truckdriver. The shipper working under
Barnes since June, 1964 was Olson, who was specially detailed to Barnes from his
regular job under Handel in the fabricating department. Asked who his "foreman"
was, Olson replied, "I got two. Al Handle (sic) and Frank Barnes." The testimony
of Superintendent Biggin and President Bauer indicated that Barnes executes manage-
ment missions that would cause the employees generally to regard him as a part of
management-and which presumably accounts for Bauer's having bracketed Barnes
with Foreman Handel as ineligible for the Operations Committee under the ban he
placed on "leadmen and management men." Thus, Superintendent Biggin testified
that in laying out the work of Handel and Schauls in their respective departments he
will either do so himself or transmit his instructions to Handel and Schauls through
Barnes. President Bauer indicated his recognition of the close working relationship
of Barnes with Superintendent Biggin in the notes he prepared for his after-hours
meeting with the employees on June 2. On it he wrote a reminder to "have Frank
[Barnes] and Don Biggin tell men not to punch out." Bauer indicated that he uses
"key men" to issue instructions to the rank-and-file and that the instructions, which
in this specific instance did infact issue through Barnes (who helped generally with the
arrangements for the after-hours meeting on June 2), could also have issued through
Handel and Schauls as well. Barnes' function , as Bauer himself would seem to have
openly acknowledged to his Committee in explaining his ineligibility to serve on it, is
thus one that would normally cause the employees to identify him with management
and hence as speaking and acting for it.
c. Conclusion as to imputability
As previously mentioned, however, the inclusion of Barnes and Schauls on the
eligibility list in the election might have lessened the ordinary tendency of the
employees to regard them, by virtus of their positions, as speaking and acting for
management, this was offset by Bauer' own statement to the employees concerning
the reason for his excluding men with their kind of position from the Committee.
That explanation would serve to reinforce the natural impression the employees
would derive from the positions of these persons-that they are allied in interest with
management and are deemed to speak and act for it. The circulation and solicitation
of the union-repudiating petition by Schauls and Barnes is thus attributable to
Respondent as an act of interference, restraint and coercion by Respondent, in viola-
tion of Section 8(a)(1).
E. The refusal to bargain as a violation of Section 8(a)(5)
1. The claim of a good-faith motivation for the refusal
Under the facts thus far appearing, there can be little question of the vulnerability
of Respondent's rejection of the Union's bargaining request. The 15 employees who
signed cards authorizing the Union to be their bargaining agent were a majority in
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the production and maintenance unit, whether composed of the 21 actual rank-and-
file people in it, or in addition, of the two managerial people who were included in
the eligibility list in the election under the "compromise" between the Union and
Respondent. Respondent's attribution of its action to a good-faith doubt of the
Union's majority does not stand up under controlling legal doctrine or rational factual
appraisal. The lone element to which Bauer himself ascribed his doubt-that he
thought conditions were so good he could not see why the employees would want a
union-hardly exempted Respondent from the natural necessity of at least "giving the
union [the] opportunity to substantiate its claim" (N L.R B. v. Philamon Laboratories,
Inc., 298 F. 2d 176, 180 (C.A. 2) ). This is so even if Respondent had conveyed that
doubt and the reason therefor to the Union. Where, as here, the employer has not
even done that and has rejected the Union's request for recognition out of hand, giving
it no reason, and making no reply to the Union's proffer to have its claim submitted
to verification, and has contemporaneously embarked on a campaign against the
Union in the course of which it has illegally trenched upon the rights guaranteed to
the employees under the statute, the inference is that employer acted only to "dissipate
[the Union's] majority." (N.L.R B. v. Loren A. Decker d/b/a Decker Truck Lines,
296 F. 2d 338, 341 (C. A. 8)), and (under controlling doctrine applied in all the
courts of review) has drained its claim to good faith of validity in law or credence in
fact.11 Under like controlling doctrine an employer thus acting has deprived himself
of equitable or other legitimate basis for urging finality for the results of an election,
for by his illegal action he has aborted the purpose of the election and destroyed its
utility as the truest gauge (in the absence of interference with it) of the employees'
unhampered choice. See cases cited in footnote II above, Bernel Foam Products Co.,
Inc., 146 NLRB 1277; and note, "Union Permitted" to File Refusal-to-Bargain Charge
after Losing Representative Election. 39 N.Y.U. Law Review 866.
2. The impugnment of the signatures as a genuine designation of the Union
There remains for consideration Respondent's residual contention, which impugns
the validity of the authorizations ab initio. This is not based on the signatures, whose
authenticity is now conceded, or on the language of the authorization, whose explicit-
ness is not questioned, but on the first letter of the Union in which the signatures
were solicited-that of May 19. Respondent contends that the letter caused the
employees to believe the cards were solely for the purpose of having the Board hold
an election and that the signatures were thus invalid as designations under the doctrine
of the cases exemplifying the doctrine
Respondent would seem to misconceive the basis of the doctrine on which it relies
and the import of the letter here in issue. The doctrine, in essence, is to the effect that
where the facts tali en as a whole show that the employees were led to believe that by
signing the cards they were not signifying a desire to be represented by the Union for
collective-bargaining, but merely attesting to their willingness to have a Board elec-
tion, the cards achieve a significance no greater than what the Union led the employ-
ees to believe they had. Thus in N.L.R.B. v. Harold W. Koehler, et al d/b/a
Koehlet's Wholesale Restaurant Supply, 328 F. 2d 777, 778 (C.A. 7), the employees
were told that by signing the cards "they were not selecting [the Union] as their bar-
gaining agent" (emphasis supplied) but merely executing the formality needed for
having the Board conduct an election In N.L.R.B v. Ahtasii e Salvage Company,
Inc., 285 F. 2d 552, 555 (C A. 7), the employees signed under like belief that it was
only for purpose of having the Board conduct an election, some of the signers, when
solicited, having been "expressed reluctance to join the union." In Abrasive Salvage,
also, the employees, upon learning the union was demanding recognition on the basis
of the cards, asked the union for their cards back, saying it had "misinformed" them.
In Englewood Lumber Company, 130 NLRB 384, the remaining case cited by
Respondent, the employees were led to believe the cards had no significance other
11 Joy Silk Mills, Inc. v. N.L R B., 185 F. 2d 732, 741-742 (C.A.D C.), cert. denied 341
U.S 914; N.L.R.B. v. Whitelight Products, etc, 298 F 2d 12, 14 (C A 1), cert. denied 369
U.S. 887, N.L.R.B. v. Philamon Laboratories (supra) (CA 2) ; N L R.B. v. Harry Epstein,
at at., d/h/a Top Mode Manufacturing Co., 203 F. 2d 482 (C.A. 3), cert. denied 347 U S.
912; Florence Printing Co v N.L R B., 333 F. 2d 289 (C A. 4) : N.L B R v S,vtheastern
Rubber Mfg. Co., Inc, 213 F 2d 11, 13-15 (CA. 5) , N L R.B v Armco Drainage & Metal
Products, Inc., 220 F. 2d 573 (C.A. 6) cert. denied 350 U.S 838; Madden, Reg Dir. v.
Vapor Blast Mfg. Co., 280 F. 2d 205 (C A. 7) cert. denied 364 U S. 910; N L B B v.
Decker, supra (C.A. 8) ; N.L.R.B. v. Trimfit of California, Inc., 211 F. 2d 206, 209-210
(CA. 9) ; N.L.R.B. v Lively Service Company, 290 F 2d 205 (C.A. 10).
BAUER WELDING & METAL FABRICATORS, INC. 967
than to indicate their willingness to have a Board election. It is on that basis that
the Board in Cumberland Shoe Corporation, 144 NLRB 1268, distinguished the
Englewood case. The Board in Cumberland observed (footnote 3) that in Englewood:
... the solicitor '[of the signatures] explained to . . . all the employees that the
cards were only for the purpose of securing a Board election and thereby secured
many signatures, including those of two employees whose hostility to the desig-
nated union was open and notorious and explicitly communicated to the solicitor.
Cf. also, Morris & Associates, Inc., 138 NLRB 1160, 1164. [Emphasis supplied.]
As the Trial Examiner in Englewood indicated (p. 408), the solicitor underscored
his point that signing did not signify a desire for union representation by explaining
that "an election would be held in which a vote could be cast against the Union as
well as for it."
The Union's letter of May 19 stresses the opposite premise. Every step therein
described, from the signing of the cards to the certification by the Union in the elec-
tion, is predicated upon the employees' desire to be represented by the Union in order
to secure the benefits of such representation. The pamphlet which came with the
letter is intended to stimulate that desire in the employees. The cover page has a
picture of a man at work, with the title, "This worker lost $464 last year." The import
of the pamphlet is that in the preceding year (as is claimed in the statistical table
there appearing) employees in plants having union representation averaged $464 more
in earnings than unorganized employees, and therelore, that "this worker" because
he worked in an unorganized plant "lost $464 last year." The pamphlet then stresses
that organization is the means by which "men and women in all walks of life" achieve
strength collectively that they lack individually, whether it be in the professions or in
the trades Finally, the pamphlet espouses the Charging Party's "record of over 70
years of service to its membership" as a reason for joining it The letter of May 19,
which went with the pamphlet, is on its face premised on the employees "want[ing]"
union representation and it outlines the steps for translating that desire into reality.
It reads:
To All Employees of Bauer Welding
and Metal Fabricators Inc.:
Dear Friends: YOU CAN HAVE A UNION IN YOUR PLANT IF YOU
WANT ONE!
Just fill out the enclosed authorization card and return it to us. The card
will then be turned over to the National Labor Relations Board, a branch of
the United States Government.
This is your right under law. The National Labor Relations Board will then
conduct an election only if we show them that the employees have asked us to
represent them. Your employer will never see these cards.
If the majority of the employees vote to be represented by the Union, the
United States Government will then certify the Union or the bargaining agent
for the employees.
The Sheet Metal Workers' Union understands your problems and is standing
by ready to help you Tne sooner we get the cards back, the sooner Uncle Sam
will conduct an election in your plant, and we will be able to help you.
You will choose your shop stewards and negotiating committee. The Union
will work with you to negotiate your own Union contract and wages and work-
ing conditions you will not be ashamed to work under.
REMEMBER-Together we stand united-alone the Company owns you!
BELONGING TO THE RIGHT UNION DOESN'T COST-IT PAYS'
Yours fraternally,
Kenneth L. Johnson
Business Representative
Local Union No. 547
Thus, as appears, the whole appeal in the letter is keyed to the employees
"want[ing]" union representation in order to realize its benefits, and is devoted to
showing how the employees "can have a union in [their] plant." Far from suggesting
that signing the card is a ritual not necessarily reflecting the employee's actual desire,
the signing of the card is described as a step in which the employee affirmatively
attests to his desire to have the Union represent him. That action is described as a
prelude to the second step, in which the Board will hold the election, whose successful
outcome will make the Union "able to help [the employees]" and to "work with [them]
to negotiate [their] own Union contract." But the first step, that of signing the authori-
zation, is portrayed, as quite meaningful: It will "show [the Board] that the employees
have asked us to represent them." [Emphasis supplied ]
'968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is difficult to see how any employee could have been misled by the character of
the appeal into believing that his signature was not an affirmation of his desire to
have the union represent him. The letter, of course, describes a process culminating
in the realization of that desire on the optimum basis,-since a certification pro-
tects the bargaining status of a union in more ways than does an informal recogni-
tion; 12 and secrecy spares the employee the discomfiture of disclosure to his employer
as a union supporter,-which last, indeed underlay the Union's offer, in its letter to
Respondent of June 4, to have the authorization cards checked "by a neutral person
or public official." Although the process described for realizing the desire of the
employees to be represented by the Union as premised in the letter involved a series
of steps, each step was conveyed as denoting a genuine manifestation of that desire,
beginning with the signing of the card, which attested to what the card (described
on its face and in the letter as an "authorization") unambiguously said as follows:
I the undersigned hereby authorize the SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION LOCAL 547 to represent me for the purpose of
Collective Bargaining, and in my behalf, to negotiate and conclude all agree-
ments as to hours of labor, wages, and other conditions of employment.
Further reinforcing the presumption that those who signed were genuinely attest-
ing to what they were signing to was the freedom of the employees from the pres-
sures of a personal approach. They had a full chance to reflect upon the import of
the Union's total appeal and the explicit language of the card in the privacy of their
homes before filling out the information it called for, signing it, and finally mailing
it Its meaning as a genuine authorization was unmistakably brought home to the
employees soon afterwards in a manner calculated to evoke comment from any
employee who truly thought he had been misled. Thus, the follow-up letter of
May 26, urged those who had not yet done so to sign and mail in their cards "so we
can make it 100% for the Union," and the leaflet that went with it urged the employ-
ees to sign and mail in their cards "so we can represent you." The above was before
the Union made its demand for bargaining. After the Union made its bargaining
demand on June 4, Bauer, in his rounds among the employees, as earlier described,
told the various groups that he refused to speak to the Union's representatives
because he was "too busy" and he even showed the employees the Union's letter of
June 4, in which the Union repeated its bargaining request and offered to have the
signed authorization cards checked against Respondent's payroll record The
employees were now unequivocally put on notice, this time by their own employer,
that the cards they had signed were being advanced by the Union to support a claim
of majority designation as the basis for a demand for bargaining on their behalf.
Yet, is does not appear that any employees asked the Union for their cards back or
protested to the Union or even to Bauer that they had been misled concerning the
nature of their action in signing the authorizations This was true also as to Al
Danielson, despite the fact that a most natural occasion for him so to protest if he
truly thought he had been misled, was the one to which Bauer himself testified-
the one in which Danielson, when Bauer said the signatures on the cards did not
"match" those on the pay checks, made clear to Bauer that if a mismatch should
turn up in his case, it was only because his wife signed his pay checks and he had
signed the authorization card.
Danielson's case is specifically mentioned because he was one of five employees
produced by Respondent to testify that they "understood" when they signed the
card, that they were merely attesting to their consent to the Board's conducting an
election, not to having the Union represent them Under the well-recognized prin-
ciple that "an employee's thoughts (or afterthoughts) as to why he signed a union
card, and what he thought that card meant, cannot negative the overt act of having
signed a card designating a union as bargaining agent" (Joy Silk Mills, Inc. v.
N.L.R.B., supra, footnote 11, p. 743), I at first sustained the objections to that tes-
timony. However, on further consideration, I admitted it to allow for the possibility
that a study of the record might indicate some relevance for that testimony in this
particular instance and hence to warrant consideration and appraisal thereof on its
merits. The result would seem to have given added point to judicial pronouncements
on the dubious reliability of employees' testimony in purported recall of their
12 E.g. Invulnerability of the Union's exclusive bargaining status during the "certifica-
tion year" (Ray Brooks v. NL.R.B., 348 U.S. 96), the presumed continuance of the
majority even after expiration of that year (Celanese Corporation of America, 95 NLRB
664), and express exemption from the recognition-picketing strictures of Section 8(b) (7).
See note, anion Permitted to File Refusal-to-Bargain Charge After Losing Representation
Election, 39 N.Y.D. Law Review 866.
BAUER WELDING & METAL FABRICATORS, INC. 969-
thoughts or inner motivations during a past act or experience. See, e g., N.L.R.B. v.
Donnelly Garment Company, 330 U.S. 219, 231-232 and cases cited. First to be
noted is that in the election, 11 employees still voted for the Union. Since (on the
premise underlying the principle that preserves to a union its bargaining rights under a
card majority, despite its dissipation after an employer's elhcit conduct, supra footnote
11), a campaign of the kind here carried on by Respondent can hardly be expected
to have made new converts to the Union, it is a fair assumption that the 11 employees
who voted for the Union in the election were among the 15 employees that had
signed the authorization cards on which the Union based its bargaining demand on
June 4. And it may be reasonably assumed, too, that if they still wanted the Union
to represent them even after the campaign conducted by Respondent, they wanted
it at least as much when they signed the card in May expressly attesting to that
desire. Thus, only the remaining four of the 15 card signers, who in the election,
voted against the Union were in any colorable position to impugn the genuineness
of their intention in signing. Yet at the hearing Respondent produced five among
the 15 signers who now, in late October, 1964, were prepared to testify that when
they signed the card in May, they thought it stood for something different from
what it said. So it is apparent without more than at least one in that group could
not have been making that disclaimer truthfully.
Who among these five that one was cannot, of course, be known. But it must be
said that the quality of the testimony of all five made each a suitable candidate for
such identification. The leadoff witness in the group was Robert Manzke He
testified that he had read only the Union's letter but had not read the card before
signing and mailing it in. The card, apart from the signature, called also for other
information (name, address, employer, job classification, hourly rate, and date of
signing). The witness admitted he filled in all the blanks himself. Whereupon, he
now admitted that he had indeed read the portions of the card calling for that infor-
mation, but he averred that he still had not read the remainder, which consisted of
the authorization. On further probing of his self-attributed seiectiVity, the witness
shifted his ground and admitted first that he "might have looked at" the authoriza-
tion and, finally, that it is even "possible" that he read it.
The remaining four witnesses, who were in the hearing room during Manzke's
testimony, did not repeat that witness' self-discrediting denial of having read the
card. However they testified, as had Manzke, that because of the letter of May 19,
they "understood" the card to signify no more than a willingness to have an elec-
tion. That testimony was vulnerable on grounds common to all five. They were
all literate. At the hearing they read the authorization aloud and indicated they
understood its meaning. Further, Danielson and La Pointe are men well on in years,
have long worked in industry, and have belonged to "several" unions in prior jobs.
(Danielson, additionally, is a homeowner.) Also, as previously mentioned, if any of
these five had truly signed under a different understanding of the significance of the
card from what it stated, he would expectably have made himself heard on receiving
the Union's letter and leaflet of May 26, which left little doubt that the card stood
for what it said, and at the very latest, when Bauer exhibited the Union's letter of
June 4, showing that it was asking to be recognized as the employees' bargaining
representative on the strength of the very cards signed by the various employees,
including these five. While this applies to all five witnesses, it applies especially to
Danielson for the reason stated: since, when Bauer represented to the various employ-
ees there were mismatches between signatures on the cards and those on the pay-
checks, Danielson came forwaid and affirmed that the signature on the authorization
card was his, it would have been most "natural" 13 for him, if he signed with an under-
standing different from what the card expressed, to have so explained his true intention
to Bauer, who had given the employees every reason to be certain that he would be
most receptive to intelligence of that character.
On this issue also, the demonstrated genuineness of the intentions of at least the 11
signers who continued steadfast has yet another significance. Eliminating Schauls and
Barnes, who, as found, are supervisors, and whom Bauer himself under the rule of
eligibility he laid down for his employee Committee, showed he did not deem to be
part of the rank-and-file, the I1 signers were a majority of the 21 rank-and-file
employees actually comprising the production and maintenance unit, when the Union
made its demand for recognition on June 4. As to the 4 signers who voted against
the Union, if the rule of probability permits us to say that the vote of at least one
of them reflected a departure from original intent produced by Bauer's illegal activity,
then the Union on June 4 had at least 12 genuinely-intentioned signers and thus had a
13 E. Anthony cE Sons, Inc . v. N.LRB., 163 F. 2d 22 , 26 (CA.D.C.), cert. denied 332
U.S. 773.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority at the time of the demand on June 4, even if the unit be deemed expanded
to 23 to include Schauls and Barnes. And if the "cumulative experience" (N.L R.B.
v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344, 349) of case lore permits
us to say that an employer's campaign of this character would reasonably he expected
to produce more extensive defections (e g. cases in footnote 11, supra), then we have
still another element of probability confirming what the preponderance of the credible
evidence demonstrates even apart from it- that all 15 employees in signing, were
genuinely attesting to what they signed, and that they were neither led to understand
nor did they in truth understand otherwise. On that score the facts-with the marked
preponderance of the probabilities supporting the genuineness of the intent behind the
designations-are notably similar to those in N.L.R B. v. Mid-West Towel and Linen
Service, Inc., 339 F. 2d 958, 962 (C.A. 7). where the Court, in sustaining the Board's
8(a)(5) finding, stressed comparable elements of probability in distinguishing its
earlier holding in Koehler, on which Respondent relies.
It follows that Respondent's admitted refusal to bargain with the Union on and
after June 4, 1964, unsupported by a good-faith doubt of majority as found, was a
violation of Section 8(a) (5) and (1) of that Act. Also, since Respondent was under
an obligation to bargain collectively with the Union on June 4 and thereafter, the
ensuing wage raises, though given, as I have found (supra, footnote 8), pursuant to
Respondent's established "merit" policy, and not as part of its antiunion campaign,
were nevertheless, because given unilaterally without notifying or consulting with the
Union, in contravention of the obligation under Section 8(a)(5) to bargain col-
lectively with the Union in respect to wages and other conditions of work. See
N.L.R.B. v J. H. Allison & Company, 165 F. 2d 766 (C A. 6) cert denied 335 U.S.
814. Further, by dealing concerning conditions of work with a labor organization
other than such exclusive representative, Respondent-separately and apart from its
offense under 8(a)(2) in dominating and supporting that organization (the com-
mittee) and thereby assisting it as well-violated its obligation under Section 8(a) (5)
to recognize only the exclusive statutory representative of the employees for such
purpose.
IV. THE REMEDY
It has been found that Respondent in violation of Section 8(a) (5), refused to bar-
gain with the Union as the exclusive representative of its employees in the production
and maintenance unit, in violation of Section 8(a)(2), dominated and supported a
labor organization called the Operation Communications Committee, and in further
violation of 8(a)(1), invaded in other respects the rights guaranteed to employees
under the statute. To remedy the violations found, Respondent will be required to
cease and desist from them, and (in view of the underlying opposition to the guaran-
tees of Section 7 out of which the violations here found arose) from in any other
manner infringing upon the rights guaranteed to employees under Section 7 of the Act.
Respondent will also be required to take the requisite "affirmative," or mandatory,
steps to redress the injury done In this particular kind of case the "affirmative
measures" (apart from the posting of notices) connote, in their basic essence, a
faithful adherence to the injunctive provisions. Thus, the requirement to cease and
desist from refusing to bargain with the Union entails the affirmative duty to bargain
with the Union in respect to grievances, hours, wages, and other conditions of work
and to embody in a signed contract such accord as is reached. The faithful dis-
charge of the bargaining obligation entails the duty to make a genuine effort to find a
common ground and to compose all differences in order to arrive at an accord. It
entails the duty also to refrain from action calculated to undermine the Union's status
or prestige as bargaining representative of the employees, that is to say, the duty to
bargain in respect to wages, hours and other working conditions entails the duty to
refrain from making changes in respect to these matters unilaterally and without prior
notification of the Union and an opportunity to the Union to discuss and treat with
Respondent concerning them Benne Katz, etc. d/b/a/ Williamsburg Steel Products
Co. v. N.L R.B., 369 U.S. 736.
Respondent will also he required to "withdraw all recognition from" the
Respondent-dominated Committee as representative of its employees, and to "com-
pletely disestablish" it as such, this last being the term of art to denote "severance by
Respondent from the Committee of the kind of relationship which gives the latter
identity as a labor organization fi e } termination of all `dealing' between Respondent
and the Committee concerning terms or conditions of the job . .. ' Northeastern
Engineering, Inc., 112 NLRB 743, 756.
Regarding the notice to be posted, in order that the employees better understand
the assurances embodied in the notice, it will include a brief introductory statement
.of the findings giving rise to the need for these assurances. Wabana, Inc., 146 NLRB
1162.
BAUER WELDING & METAL FABRICATORS, INC. 971
On the foregoing findings and the entire record, I accordingly state the following:
CONCLUSIONS OF LAW
1. The following employees constitute a unit appropriate for the purpose of col-
lective bargaining within Section 8(b) of the Act:
All production and maintenance employees of Respondent at its Minneapolis,
Minnesota, operation located at County Road "C" and Highway 8, excluding office
clerical employees, estimator, engineer draftsmen, salesmen, professional employees,
guards, and supervisors as defined in the Act.
2. Since on or about May 26, 1964, and continuing to date, Sheet Metal Workers
Local Union 547, affiliated with Sheet Metal Workers International Association,
AFL-CIO, has been designated as collective-bargaining representative by a majority
of the employees in said unit and by virtue thereof has been the exclusive bargaining
representative of all the employees in the unit for the purpose of collective bargaining
in respect to grievances, rates of pay, wages, hours of employment, or other terms
and conditions of employment.
3. By refusing on June 4, 1964, and thereafter to bargain collectively with the
Union as such exclusive bargaining representative, Respondent has engaged in and
is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of
the Act.
4. By dominating and interfering with the formation of a labor organization called
Operation Communications Committee, and granting financial and other support
thereto, Respondent engaged in and is engaging in an unfair labor practice within the
meaning of Section 8(a) (2) of the Act.
5. Thereby and by interfering with, restraining, and coercing its employees in the
exercise of their rights under Section 7 of the Act in other respects, including having
assembled and detained the employees after hours for the purpose or with the fore-
seeable consequence of preventing or impeding their attendance at a meeting known
by Respondent to have been called by the Union, threatening that it could make a
"sweetheart contract" with the Union in betrayal of their interest coupled with the
suggestion of the Union's corruptibility in that regard with a knowingly untruthful
implication that Respondent possessed derogatory information reflecting upon the
integrity of that representative, threatening that existing benefits would be discon-
tinued if the employees chose the Union to negotiate on their behalf, and granting a
newly conferred benefit in respect to pay for legal holidays falling on weekends, with
the purpose or foreseeable consequence of inducing the employees to deny or dis-
continue their support of the Union, and initiating and sponsoring a petition among
the employees in purported repudiation of the Union as bargaining representative of
the employees, Respondent engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. By refusing to bargain with the Union in other respects, through conduct in
derogation of the Union's status as exclusive bargaining representative of said employ-
ees, which included dealing and treating with another labor organization called the
Operation Communications Committee in respect to grievances, earnings, and condi-
tions of work, unilaterally changing its policy in respect to pay for legal holidays and
granting raises without prior notification of or consultation with the Union, Respond-
ent further engaged and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) and (1) of the Act.
7. The foregoing unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
8. Respondent did not engage in unfair labor practices other than as herein found.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions, and pursuant to Seciton 10(c) of the
Act, it is hereby ordered that Respondent Bauer Welding & Metal Fabricators, Inc., its
officers, agents, successors and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with Sheet Metal Workers Local Union 547,
affiliated with Sheet Metal Workers International Association, AFL-CIO, as the
exclusive representative of its employees in the following appropriate unit:
All production and maintenance employees of Respondent at its Minneapolis, Min-
nesota operation located at County Road "C" and Highway 8, excluding office clerical
employees, estimator, engineer draftsmen, salesmen, professional employees, guards,
and supervisors as defined in the Act.
(b) Dominating or interfering with the formation or administration of or contribut-
ing financial or other support or assistance to Operation Communications Committee
or any other labor organization of its employees.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Engaging in conduct in derogation of the status of said Sheet Metal Workers
Union as exclusive bargaining representative of the employees, such as dealing and
treating with another labor organization in respect to grievances, wages or terms or
conditions of work, or making unilateral changes in respect to them, including changes
in respect to holiday pay and hourly wage rates or other terms and conditions of
employment without prior notification of or consultation with said Union.
(d) Threatening, expressly or by implication, to discontinue existing benefits, if
the employees choose or adhere to their choice of said Union as their bargaining repre-
sentative. including coffee breaks, sick pay, transfers to other work in the event of a
shortage of work in employees' particular jobs, and the bonus opportunities under
the Fair Share of Production Plan, granting benefits in order to induce employees to
refrain from or discontinue their support of the union, or initiating or sponsoring
among the employees petitions repudiating the Union as the employees' bargaining
representative.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights as guaranteed by Section 7 of the Act, except insofar as
such rights might be affected by a contract, if validly made in accordance with Sec-
tion 8(a)(3) of the Act, under which membership in a labor organization is a condi-
tion of employment.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act
(a) Upon request, bargain collectively in good faith with Sheet Metal Workers
Local Union 547, affiliated with Sheet Metal Workers International Association,
AFL-CIO, as the exclusive bargaining representative of Respondent's employees in
the unit above described in respect to grievances, rates of pay, wages, hours of employ-
ment, and other terms and conditions of work and embody such accord or under-
standing as is reached in a signed agreement
(b) Permanently withdraw from Operation Communications Committee. or any
successor thereto, all recognition as representative of any of Respondent's employees
for treating or dealing with Respondent in respect to grievances, wages, earnings, or
other terms or conditions of employment, and completely disestablish it as such
representative
(c) Post at its plant in Minneapolis, Minnesota, copies of the attached notice
marked "Appendix." 14 Copies of such notice, to be furnished by the Regional
Director for Region 18, shall, after being duly signed by Respondent's representative,
be posted immediately upon receipt thereof, and be maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Decision, what steps the Respondent has taken to comply herewith.15
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair
labor practices other than as herein found.
"If 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 be enforced by a decree of
a United States Court of Appeals, the words used shall be a "Decree of the United States
Court of Appeals , Enforcing an Order".
15 In the event that this Order is adopted by the Board, the written notification will
be within 10 days from the Order ; In the event of Court enforcement , it will be 10 days
from Decree.
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 Rela-
tions Act, as amended, we hereby notify our employees that:
After a hearing duly held. it was found that Sheet Metal Workers Local Union
547, affiliated with Sheet Metal Workers International Association, AFL-CIO,
had been validly designated by a majority of the employees in the production and
maintenance unit, and since it was thus the exclusive collective bargaining agent
for all the employees in said unit, it was accordingly found that this Company
by refusing to bargain with said union on request had committed an unfair labor
BAUER WELDING & METAL FABRICATORS, INC. 973
practice. It was also found that this Company interfered with the guaranteed
rights of employees in other respects, such as threatening to discontinue existing
benefits if they chose to negotiate through said Union, changing working condi-
tions and rates of pay without notifying and consulting with said Union, and
recognizing and dealing in respect to grievances and working conditions with a
labor organization formed, dominated and assisted by the Company, called
Operation Communications Committee. To remedy such conduct, this Company
has been required to discontinue the practices found to be contrary to the
National Labor Relations Act, as amended, to take certain affirmative measures
to carry out the Act's policies, including that of bargaining with said Union,
and to post this notice advising you of the action we will take and assuring you
of your freedom from any future interference with your rights guaranteed you
by the Act. Accordingly, we hereby assure you as follows:
WE WILL NOT refuse to bargain and, upon request, WE WILL bargain col-
lectively and in good faith with Sheet Metal Workers Local Union 547,
affiliated with Sheet Metal Workers International Association, AFL-CIO,
as the exclusive bargaining representative, and WE WILL embody in a signed
contract such accord or understanding as may be arrived at with it in respect
to grievances, wages, hours, or other terms and conditions of employment,
of the following unit of employees:
All production and maintenance employees at our Minneapolis, Min-
nesota operation located at County Road "C" and Highway 8, excluding
office clerical employees, estimator, engineer draftsmen, salesmen,
professional employees, guards, and supervisors as defined in the Act.
WE WILL NOT discontinue or threaten to discontinue existing benefits,
such as coffee breaks, sick pay, transfer to other work when an employee's
work runs short, or the FSOP plan; nor will we grant or promise to grant
benefits as inducements to refrain from or to cease giving your support or
allegiance to said Union as your bargaining representative in respect to
terms and conditions of work, and WE WILL NOT initiate or sponsor the
repudiation of the Union as the employees' bargaining representative.
WE WILL NOT seek to undermine or impair the Union's status as exclusive
bargaining representative of our employees by treating or dealing with the
Operation Communications Committee or any other labor organization in
respect to grievances, wages, hours or other terms or conditions of work, or
by making changes in existing conditions or wage rates without first notify-
ing and consulting with said Union as the employees' bargaining
representative.
WE WILL NOT recognize, treat or deal with Operation Communications
Committee or any successor thereto in respect to grievances, wages or condi-
tions of the job, and WE HEREBY PERMANENTLY WITHDRAW all recognition
from said Committee, or any successor thereto as representative of any of
our employees, in respect to such matters, and we completely disestablish it
as such representative.
WE WILL respect the rights of our employees to self-organization, to form,
join or assist any labor organization, or to bargain collectively in respect to
terms or conditions of employment through said Union or any representative
of their own choosing, or to refrain from such activity, and WE WILL NOT
interfere with, restrain, or coerce our employees in the exercise of these
rights, except insofar as those rights could be affected by any contract with
a labor organization, if validly made in accoidance with the National Labor
Relations Act, whereby membership therein is a condition of employment
after the 30th day following the date of such contract or the beginning of
such employment, whichever is later.
BAUER WELDING & METAL FABRICATORS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must iemain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or coveied by any other material.
If employees have any question concering this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No. 334-2611.