Boyer Bros., Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1968

170 N.L.R.B. 1108 (N.L.R.B. 1968)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boyer Bros ., Inc. and Bakery and Confectionery
Workers' International Union of America
Boyer Bros ., Inc. and Bakery and Confectionery
Workers' International Union of America, Peti-
tioner . Cases 6-CA-3711 and 6-RC-4185
April 5, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 26, 1967, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
proceeding, finding that the Respondent, Boyer
Bros., Inc., had engaged in and was engaging in cer-
tain unfair labor practices and recommending that
it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exception to the Trial Examiner's Decision
and a supporting brief, and the General Counsel
filed a brief in answer to the Respondent's excep-
tions, cross-exceptions to the Decision, and a
supporting brief The Respondent also filed a
motion to reopen the record and the General
Counsel filed a brief in opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Respondent's mo-
tion,' the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Boyer Bros., Inc., Al-
toona, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the petition for cer-
tification filed in Case 6-RC-4185 be, and it
hereby is, dismissed.
' Neither the Respondent's motion to reopen the record nor the af-
fidavits attached thereto contain any allegation which if proved would af-
fect the outcome of our Decision herein Accordingly, the Respondent's
motion is denied
' The Trial Examiner's Decision incorrectly uses July 6 as the date for
establishing the Union's majority and finds that of the 208 employees in the
unit, 106 had signed authorization cards by that time We find the critical
date to be July 7, the day on which the Respondent received the Union's
request for bargaining Rea Construction Company, 137 NLRB 1769 Ac-
cordingly, we shall exclude the card signed by Philip Jenkins, who had con-
cededly left the Respondent's employ by that date
We shall, however, include the authorization card signed by Elizabeth
Park on June 30 after she was told that "practically everyone" had signed
Park's card was excluded by the Trial Examiner See G & A Truck Line,
Inc , 168 NLRB No 106 In any event, the record shows that, in fact, a
majority of cards had been signed by June 30, exclusive of Park's
Accordingly, we find that 106 employees, constituting a majority of the
207 employees found to be in the unit, have authorized the Union to
represent them for purposes of collective bargaining
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a
charge filed on August 19, 1966, by Bakery and
Confectionery Workers' International Union of
America, herein called the Union, the Regional
Director for Region 6 of the National Labor Rela-
tions Board, herein called the Board, issued a com-
plaint on behalf of the General Counsel of the
Board on January 27, 1967, against Boyer Bros.,
Inc., Respondent herein,' alleging violations of Sec-
tion 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et
seq.), herein called the Act. Thereafter on January
31, 1967, the Regional Director issued his order
directing a hearing on objections to conduct affect-
ing the results of the election held pursuant to a
Stipulation for Certification Upon Consent Election
among Respondent's employees in Case
6-RC-4185. On the same date the Regional
Director issued his order consolidating both cases
and directing a consolidated hearing. In its duly
filed answer Respondent, while admitting certain
allegations of the complaint, denied the commission
of any unfair labor practice.
Pursuant to notice a trial was held before me in
Altoona, Pennsylvania, and Washington, D.C.,
where all parties were present, represented, and af-
forded full opportunity to be heard, present oral ar-
gument, and file briefs with me. Briefs were filed by
all parties on June 27, 1967. Upon consideration of
the entire record, including the briefs filed with me,
' The caption above includes the name of the Respondent as corrected at
the hearing
170 NLRB No. 119
BOYER BROS., INC. 1109
and specifically upon my observation of each wit-
ness appearing before -me,2 I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Boyer Bros., Inc., Respondent herein, is engaged
in the manufacture and nonretail sale of candy at
its Altoona, Pennsylvania, plant. During the most
recent 12-month period it received at its Altoona
plant directly from outside the Commonwealth of
Pennsylvania goods and materials valued in excess
of $50,000. During the same period it shipped from
this plant goods and materials valued in excess of
$50,000 directly to points outside the Common-
wealth of Pennsylvania. Upon these conceded facts
it is admitted and I conclude and find that Respon-
dent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded by all parties and I conclude and
find that Bakery and Confectionery Workers' Inter-
national Union of America, Charging Party herein,
and petitioner in the representation proceedings, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE ISSUES
1. Supervisory status of line supervisors.
2. Interference, restraint, and coercion.
3. Imposition of an unlawful no-solicitation rule.
4. The discharge of a statutory supervisor.
5. Refusal to bargain based upon refusal to ac-
cept proffered signed authorization cards.
IV. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Organizing efforts among Respondent's em-
ployees commenced during the latter part of May
1966. At the outset union representatives mailed to
those .employees for whom they had procured home
addresses union authorization cards with provision
for return mailing. Signed cards were returned by a
considerable number of employees to the Union's
Pittsburgh headquarters. Meanwhile, in early June,
the Union's representatives enlisted the support of
interested employees and through their efforts addi-
tional signed cards were obtained. Some of these
signed cards were procured at the several meetings
held thereafter, others by visits of union representa-
tives and active employees to the homes of the em-
ployees, and still others by solicitations at the plant
before and- after work, and during -coffeebreaks.
These cards which formed the basic substance of
this proceeding will be - considered in detail
hereafter (infra).
On July 6, 1966, Henry S. Alvino, director of or-
ganization of the Union, directed a letter to W. E.
Boyer, Respondent's president, advising him that
the Union represented a majority of the production
and maintenance employees and requested recogni-
tion as their exclusive bargaining representative. In
support of his claim and request Alvino stated that
"we would be happy to exhibit signed and dated
pledge cards demonstrating proof of our majority
interest to any neutral third party whom you and
we can agree upon." In response to this communi-
cation Respondent, by letter of its attorney, Edward
C. First, Jr., dated July 8, 1966, stated, in part, as
follows:
Because we have a good faith doubt of the fact
that you represent such a majority and a doubt
about the circumstances , and ways and means
whereby pledged cards may have been ex-
ecuted, we suggest that you file an appropriate
petition with the Pittsburgh office of the Na-
tional Labor Relations Board which you know
would have jurisdiction over a representation
proceeding on your petition.
Following the receipt of Respondent's rejection
the Union filed with the Regional Director on July
11, 1966, its petition in Case 6-RC-4185 for an
election among Respondent's employees.
Thereafter on July 27 Respondent and the Union
executed a Stipulation for Certification Upon Con-
sent Election, wherein the election was scheduled
for August 17, 1966, and the unit appropriate for
collective bargaining was agreed to be: All produc-
tion and maintenance employees,- truckdrivers,
shipping and receiving employees at the Employer's
Altoona, Pennsylvania, location; -excluding all other
employees, office clerical employees, guards,
professional employees and supervisors as defined
in the Act. -
At the election thereafter conducted 220 of
Respondent's 241 eligible employees voted, of
2 Except where specifically indicated otherwise the credibility evalua-
tions I make of the testimony of witnesses appearing before me is based, at
least in part , upon the demeanor of the respective witness as I observed it at
the trial and particularly at the time the testimony was given . Cf Retail
Clerks International Association , AFL-CIO, Local 219 ( National Food
Stores), 134 NLRB 1680, 1682, in fn. 3; Bryan Brothers Packing Co, 129
NLRB 285 . To the extent that I do not rely on or I reject in part or entirely
the testimony of any given witness it is to be understood that I have fully
considered such evidence and such other evidence as may be inconsistent
with it and that based upon my evaluation of it and a consideration of the
demeanor of the respective witnesses , it is my intent thereby to indicate
that such a part or all of the testimony, as the case may be, is discredited by
me. In this respect "[T]he failure of a Trial Examiner to detail completely
all conflicts in the evidence does not mean that this conflicting
evidence was not considered A `Trial Examiner is not compelled to an-
notate to each finding the evidence supporting it "' Bishop and Malco, Inc ,
159 NLRB 1 159
To the extent that I credit any witness only in part I do so upon the
evidentiary rule that it is not uncommon "to believe some and not all of a
witness' testimony " N L R B v Universal Camera Corporation , 179 F 2d
749, 754 (CA 2),
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom 95 cast votes for the Union, 124 against the
Union, with 1 vote challenged. Subsequently, on
August 19, 1966, the Union filed timely objections
to conduct affecting the results of the election.
These objections, after investigation by the Re-
gional Director, have been consolidated by him
with the complaint case herein and will be
discussed in further detail hereafter (infra.).
B. Supervisors
Critical to a number of issues that have been
raised is the status of a group of 12 individuals
claimed by Respondent to be supervisors. Because
their status relates not only to their eligibility to
vote in the election but also to the part they took in
the several incidents related hereafter it would
seem appropriate to make a final determination as
to them at the outset.
This group, referred to as line supervisors, con-
sists of the following:
Donna Bowmaster Mona Hancock
Ida Bulman Betty Henry
Paul Burgret Janet Mauk
Clara Davis Mary Mauk
Mary DeLozier Wayne Medesia
Catherine Fyan Mary Price
All the line supervisors are hourly rated, whereas
all the other supervisors are salaried. They attend
all meetings of supervisors, however, and at these
meetings participate in discussions relating to
roduction, safety, plant cleanliness, and otherp duction,-
items of management concern. While they are not
empowered to either hire or fire the employees as-
signed to them they do recommend such action,
and after independent investigation by higher su-
pervision their recommendations have frequently
been adopted by management. They are instructed
to warn employees in their respective "lines" con-
cerning improper dress and after consultation with
their own supervisors are empowered to send such
employees home. Their average hourly rate of pay
is approximately 30 cents more than the average of
employees on the line, and like them they are paid
overtime and punch timeclocks. Each of the line
supervisors has a number of employees "working
under them," which number varies from time to
time, depending on production conditions. Thus the
line supervisors average the following number of
employees working "under them":
Donna Bowmaster 10 Mona Hancock 25
Ida Bulman 14 Betty Henry 6
Paul Burget 5 Janet Mauk 25
Clara Davis 20 Mary Mauk 10
Mary DeLozier 15 Wayne Medesia 6
Catherine Fyan 10 Mary Price 10
9 The foregoing findings are a composite of the testimony of Plant
Manager and Vice President Francis R Lockard, Personnel Director
Robert M Wallace and of Supervisor Dolores Mascitelli, a witness called
by the General Counsel This testimony corroborates the several "reports
It is conceded that they make recommendations for
disciplinary action and that Respondent has "car-
ried out these recommendations as seen fit." They
are consulted when the salary increase of an in-
dividual employee is contemplated, make recom-
mendations as to. the workability of such em-
ployees, and participate in periodic employee rating
programs. Management gives "quite a bit" of
weight to such reports and recommendations.3
On August 8, 19-66, Respondent and the Union
agreed upon a list of employees eligible to vote in
the forthcoming election, which list includes among
those eligible to vote 11 of the 12 line supervisors,
Betty Henry having been discharged in the mean-
time. And in this respect it is stipulated among the
parties that.as an element of the negotiations lead-
ing to the consent election it was agreed that at
least nine named supervisors would be permitted to
vote, thus explaining their presence on the eligibili-
ty list. They voted at the subsequent election and
their votes were not challenged.
Respondent urges that despite its earlier
willingness to concede the voting eligibility of the
line supervisors, an action which it claims to have
taken to expedite the preelection negotiations and
preparations, it should not now, in contexts of a
refusal to bargain and of a discharge of an alleged
supervisor, be bound by its original acquiesence.
Thus, despite its earlier concession to the contrary,
it strenuously urges that the line supervisors whom
it has agreed to include in the voting unit are, in
fact, ineligible, being supervisors within the mean-
ing of the Act, a status which would bear sig-
nificance to issues pending herein.
It is well settled that agreements and concessions
respecting inclusion or exclusion of specific job
categories or individuals made by the parties to ex-
pedite a representation proceeding do not carry
with them the force of settled law. Montgomery
Ward & Company, Inc., 115 NLRB 645, 647; cf.
Birmingham Fabricating Company, 140 NLRB 640.
Nor does failure to contest or to pursue all avenues
of appeal in a representation proceeding preclude a
party's effort to relitigate the issue in a subsequent
complaint proceeding where it arises in some other
context. N.L.R.B. v: Sagamore Shirt Co., 365 F.2d
898 (C.A.D.C.). I would accordingly reject any
suggestion that I am precluded from determining
the supervisory status of the line supervisors on the
basis of the evidence presently before me.
A consideration of relevant evidence, particularly
the testimony of Vice President Lockard and Per-
sonnel Director Wallace, discloses that in such
areas as direction of employees, evaluation of their
work, the reprimanding of them and making recom-
mendations respecting their production, conduct,
and shortcomings, which recommendations are
of violation" signed by line supervisors and submitted to management and
admitted into evidence It also supports the testimony of Betty Henry and
Mona Hancock called as witnesses by the General Counsel
BOYER BROS., INC.
usually accepted by management upon review, the
line supervisors responsibly direct the employees
who "work under them ."4 I therefore conclude and
find that Respondent 's 12 line supervisors em-
ployed during June 1966 , and including Betty Hen-
ry, are supervisors within the meaning of Section
2(11) of the Act and may not be properly included
in any bargaining unit which I find to be ap-
propriate for collective -bargaining purposes.
C. Interference , Restraint , and Coercion
1. The Company 's stated opposition to union
organization
The Union 's organizing activity first came to
Respondent 's attention on May 24 during the
course of a supervisors ' meeting. On this occasion
someone in the group showed Vice President
Lockard a copy of a letter being sent to employees
seeking their support . Lockard turned over the
letter to President W. E. Boyer . After reading it
Boyer directed his discussion to the need for loyalty
among the supervisors and management and for
"diligence in maintaining our status without the aid
of a union ."5 Supervisor Bottenfirld, called as a wit-
ness by Respondent , credibly described the meeting
in some detail , quoting Boyer : "He looked on us as
the supervisory personnel . That everybody that was
present in that room at that particular time were
the supervisors, the supervisory personnel. He de-
pended on us. That he wanted us to be loyal to
him. If we didn 't feel that we could be loyal to him
that we could leave the room if we did not and
there would be no hard feelings whatsoever." Mrs.
Bottenfield 's next comment in her testimony bears
significance to the issues herein: "But needless to
say nobody left the room."
In the course of his plea for cooperation Pre-
sident Boyer urged the supervisors to "talk com-
pany to the girls ," and find out how things were go-
ing. And at a subsequent meeting index cards bear-
ing the names, addresses , and telephone numbers of
the individual employees were distributed among
the supervisors for the purpose of ascertaining-who
were for and who were against the Union. Each su-
pervisor was asked to note on the card after discus-
sions with individual employees whether they were
for or against the Union or questionable.'
At one of the subsequent meetings of supervisors
held in mid-July, according to Supervisor Hancock,
they were asked ( without identifying -who it was
that asked ) if any of them had signed union cards
and Hancock indicated that she had done so. She
was complimented by Respondent 's attorney for
her frankness.
' Betty Henry credibly testified that in cases of absence or emergency she
frequently substituted for one or the other of the employees assigned to
her This activity on her part, regular though it may have been, in no way
detracts from the inherent supervisory power which I find to exist in sub-
stantial measure Ohio PoxerCo v NLRB, 176F2d385,388(CA 6)
2. Preelection incidents
Consistent with- the policy disclosed at the several
supervisory meetings management determined, in
the words of Vice President Lockard, to embark
upon a "Company selling campaign." This conduct
is the subject matter of the complaint issued against
Respondent, specifically paragraph 6. To the extent
that orderly presentation permits, the manner in
which Respondent implemented its campaign
against the Union will be detailed herein in such
fashion as will relate the facts in the order in which
they appear in the several allegations of the com-
plaint.
At a meeting of the employees held on June 9,
within 2 weeks after first learning of the Union's
campaign, Executive Vice President R. J. Boyer an-
nounced that additional paid holidays were under
consideration. Thereafter, on July 29, at the height
of the election campaign, slips were placed in em-
ployees' pay envelopes advising them that three ad-
ditional paid holidays would be granted. The
Respondent insists this action was taken as a result
of an improved financial position and the an-
nouncement itself states that it was -"promised you
several months ago." But Vice President Lockard's
testimony, corroborated by employee De Leo,
establishes June 9 as the date on which President
W. E. Boyer announced the three additional paid
holidays, and a stipulation of the parties confirms
that on June 9 Boyer promised the employees "it
would do everything it could for the employees
after the fiscal year ended."
It was at this same June 9 employee meeting that
Executive Vice President R. J. Boyer announced an
improvement of the vacation plan. Thus, effective
with the July 1966 annual vacation period, 2 weeks
of paid vacation would be given to employees of 3
or more years of service. In the past, employees
after their first year received only a 1-week paid va-
cation, the 2-week paid vacation not being granted
them until the completion of 5 years of service.
As soon as Respondent became aware of the
Union's efforts among its employees it developed
its -own program, as noted previously, to counter
the activity by, as Vice President Lockard
described it,7 a program of "selling the Company,"
and by intensively ascertaining the sentiments of
the employees. Although there is testimony that the
term "union" was not used, that all management
people were given a list of "do's and don'ts," and
that they were instructed not to directly interrogate
those employees with whom they spoke, there is
considerable corroborated and undenied evidence
that management and its representatives exceeded
these bounds.
' The testimony of Lockard and Boyer, corroborated by Supervisors
Mascitelh, McIntire, Hancock, and Henry, and Personnel Director Wal-
lace.
' The testimony of Supervisors Mascitelli and Hancock.
7 Corroborated by the testimony of Supervisor Mascitelh
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the course of reprimanding employee Romeo
DeBartolome, an employee active in the affairs of
the Union, for soliciting on behalf of the Union, Pre-
sident W. E. Boyer asked him, "What do you ex-
pect to get from the union?" Or, as Vice President
Lockard described the incident, "W. E. Boyer
asked DeBartolome why he was trying to bring in
the union. "I
Shortly thereafter DeBartolome encountered.
Vice President R. J. Boyer who also asked him why
he wanted to get the Union into the plant. When
DeBartolome replied that the employees generally
favored the Union Boyer replied, "You're not
smart, you're dumb. Too dumb to work for me and
some day I'm going to get you." He then asked De-
Bartolome, as had W. E. Boyer, what he expected
to get from the Union. To this DeBartolome
replied, "hospitalization." Whereupon Boyer coun-
tered, "You'll never get free hospitalization from
us."9 R. J. Boyer is also described as having a
similar conversation with Betty Henry, the line su-
pervisor whose discharge will be considered in
detail hereafter (infra). This conversation, in the
privacy of Boyer's office and with no one else
present, admittedly involved Henry's membership
in the Union. According to Henry, whom I credit,
Boyer asked her if she was on the union committee,
at the same time commenting upon certain em-
ployees, Kieswetter, Terry, DeBartolome, and Han-
cock-all on the committee. He then told her he
heard she had been holding union meetings, which
she denied. He then asked her if she had signed a
union card. And upon her admission that she had
signed one he asked her why. Boyer, in the course
of the conversation, reminded Miss Henry that she
was a supervisor and working for the Company and
he specifically inquired if she had been at the last
supervisors' meeting; to which she replied that she
was not, having been hospitalized at the time. Hav-
ing found that Betty Henry is a supervisor within
the meaning of the Act, I am disposed to attach no
more significance to her private conversation with
R. J. Boyer than to view it as background relating
to her subsequent discharge and as a demonstration
of the pattern of R. J. Boyer's predisposition
towards the Union.
Supervisor Mascitelli, a witness for the General
Counsel, credibly described the manner in which
she carried out the instructions to "sell the Com-
pany":
I went to each and every individual in my de-
partment, and I said to them, "The Company
was good to them." I told them, "The Union
represented an outside influence and if we had
any problems the Company could solve them
without any Union help."
Q. Then what did you do?
A. Well, by conversing with these girls I
ascertained where they stood as to whether for,
against, or questionable.
And, after testifying that she was not able to inter-
view all of the 25 employees under her supervision,
she described what next transpired:
Then a short while later Mr. Patterson came to
me and he asked me, "to put on a yellow inter-
com office paper a sheet, to put on the names,
make three columns, for, against, questiona-
ble." . . . So that is precisely what I did. Then
after conversing with all of these people, each
individual girl, I went to them and I told them,
number one the Company was good for them.
Number two, that we didn't need any outside
influence. Number three, that if we had a
problem the Company was willing to meet with
us and solve it. Those are the three things that
I stated twenty-five times over.
In a number of recorded instances, however, the
supervisors appeared to have extended their efforts.
Thus, employee DeBartolome observed that "a lot
of the management personnel, supervising person-
nel, would stop me in the process of my work and
ask me about it, question me about it, ask me about
the union activities." Specifically, DeBartolome
described conversations with Traffic Manager
James Reighard, a few weeks before the August 17
election. He quotes Reighard as saying, "The Union
demands would be such that Boyer Bros. couldn't
afford to meet their claims. If he was running the
company he would close up the plant. Mr. Boyer
probably would." DeBartolome further testified
that "quite a few times" before the election
Reighard asked him "if I changed my mind yet
about the Union."10
A week before the election Supervisor David
Hainly had a conversation with employee Gary
Neff. Hainly spoke to him in the lunchroom and
asked him what he thought about the Union. He
then went on to say that before he voted he should
consider the reasons for a union and what it can do
for him," Previously Vice President Lockard had
also sought out Neff, took him aside, and asked him
if he had heard anything about the Union, and went
on to discuss promotion possibilities, a subject to be
discussed in detail hereafter (infra).
On the day of the election Al Bidoli, Respon-
dent's general production foreman, approached
employee Janice Yarmish and asked her if she was
going to vote in the election. When she told him
' I rely on Lockard's and DcBartolome's testimony in this respect and do
not credit Boyer's denial that he asked the question attributed to him by
DeBartolome He was not questioned concerning Lockard's version
Executive Vice President R J Boyer admitted to this conversation with
DeBartolome and to a question, "Why are you such a rabid umonite''" He
denied the remainder of the statements attributed to him Upon my obser-
vation of both witnesses I credit DeBartolome and reject Boyer's version of
the conversation and his denials
I do not credit Reighard's denial that he had a conversation with De-
Bartoiome concerning the Union during the period immediately prior to
the election
" 1 do not credit Hamly's denial that he questioned Neff or his testimony
that the conversation was restricted only to his statement that he would not
want the Union to represent him
BOYER BROS., INC.
that she was, he asked her, "How?" When Miss
Yarmish inquired of him how he though she should
vote he replied by urging her to vote against the
Union.12
In addition to the foregoing incidents which in-
volved the conversations between supervisors and
employees there are several additional conversa-
tions between employee Shirley McCachren and
President W. E. Boyer, Executive Vice President R.
J. Boyer, and Vice Presidents Lockard and Melvin
Barr. Because all of these incidents hinge upon the
testimony of Miss McCachren I am not disposed to
make any finding with respect to them. I observed
Miss McCachren as a witness and upon her
demeanor I do not accept her testimony as credi-
ble. Illustrative of this is the manner in which she
testified, halting and confused in her presentation
of accounts of what supposedly had transpired.
Furthermore, when confronted at one point with a
statement she had previously made in her pretrial,
affidavit she appeared to be unable or unwilling to
distinguish between her own current sworn
testimony and a contradictory statement appearing
in the affidavit itself.13
In addition to the foregoing findings which relate,
for the most part, to conversations between
management and employees there are other in-
cidents which reflect a more positive effort by
Respondent to forestall the Union.
Employee DeBartolome, as we have seen, was
known to have been the most active union advocate
among the employees, was frequently questioned
concerning these activities (supra), and was even-
tually reprimanded for carrying them on in the shop
(infra). ,He credibly testified that quite apart from
the constant inquiries from his superiors, and in line
with Vice President R. J. Boyer's threat to "yet
him" (supra), he has been "under the gun," as Vice
President Lockard threatened he would be (infra).
Thus, since the campaign began he has received
five or, six reprimands, one of them involving a I-
day suspension for failure to wear a hat in the
production area. This, it would seem, might have
been routine and proper except that the
unidentified superior who reported him for his
transgression was himself not wearing a hat.
Although his pay has not been reduced since Boyer
threatened to "get" him he has been doing what he
refers to as "a lesser job." Although classified as a
mechanic and doing mechanic's work at the outset
of the union campaign DeBartolome testified
without contradiction that since then his job is dif-
ferent. Thus:
It is a general maintenance job. Sometimes I
work outside. Lately I have been working in
their parking lot throwing gravel. I've dug
1113
ditches and filled them back up again. I
repaired fence that didn't even belong to
Boyer, Oh, I don't know, I could probably go
on for hours. I painted the fence in freezing
weather when the brush was so frozen you
couldn't even get the paint on the fence.
Q. These jobs that you had done, prior to
the organizational drive have you ever done
these jobs prior?
A. No sir. Nothing like that.
Employee Gary Neff's encounter with manage-
ment was of a different character. Two weeks be-
fore the election, in the campaign that he
"launched to try to discourage the situation"
Lockard "came across Mr. Neff." As he described
it:
I asked him the question, "How long he was
there?" He admitted three years . I said, "I
couldn't understand why he hadn't been con-
sidered for supervisory work but that I would
find out." I had some idea, although I had
some small inkling of his problem, I wanted to
make sure of it. I had asked him, "If he was in-
terested-in that way of bettering himself?" He
said, "He did-not know." I said, "Well, maybe
you might change your mind and decide the
other way. In the meantime I will check out
your record by your superiors." I did just that
and reported back to him, "His attitude was
negative. That we would not consider the su-
pervisory at all."
Neff's account of the incident conforms with
Lockard's in substantial part, accepting only that
Neff testified that in the course of the conversation
he inquired about wage raise possibilities and that it
was this which prompted Lockard to seek him out
later to tell him that upon further check he found
his attitude poor and urged an improvement. I do
not view this variation as detracting from the con-
ceded fact that at the height of the election cam-
paign Lockard sought out Neff and made the
promotion overtures described above.
3. Postelection incidents
After the August 17 election in which the em-
ployees rejected the Union several additional in-
cidents occurred which bear relevance to Respon-
dent's efforts to defeat the Union. The first in-
cident, involving President W. E. Boyer, demon-
strates Respondent's effort to convey to the em-
ployees its awareness of who were the ones who
favored the Union. Boyer, on a visit to the peanut
butter department, summoned employee Gary Neff
and accused him of spreading a rumor that there
were mice in the peanut bags. 14 Neff appears to
" Called to testify Bidoli could not recall such a conversation I credit testimony Nor do I consider for any purpose such testimony as has been
Miss Yarmish's account of the incident proffered either in support of or in rebuttal to Miss McCachren's
" Having rejected Miss McCachren as a credible witness I would ac- testimony
cordingly dismiss for want of credible support paragraphs 6(h), (i), (w), " There is no evidence in the record of any condition of mice infestation
(a), and ( aa) in the complaint which rely for proof solely upon her in the Respondent 's plant
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have corrected Boyer's misunderstanding and
Boyer went on to say that if he (Neff) "and 94
others would have voted the other way it would
have been a different story." Although the import
of this remark has a rather dubious relation to the
mouse rumor, crediting Neff as I do, it does sug-
gest, and I find, that Boyer was aware that Neff was
a union advocate and that he wanted Neff to know
of this awareness.
Again, approximately a week after the election,
the employees in the peanut butter department
were severely reprimanded by Vice President
Lockard. The basis for the reprimand was the
failure of the responsible employees-Gary Neff,
Albert Erculiani, Frank Pollito, and Clair Cherry-
to add cocoa butter to the peanut butter in the for-
mula preparation of seven batches of candy filling.
The consequence of this failure, according to
Lockard whom I credit, was the loss of 4,200
pounds of peanut butter. It appears -from the
testimony of the employees questioned-Cherry
and Neff-that there was no excuse for the lapse,
that it was a costly one, and that some reprimand
would normally be expected. 15 A meeting was
promptly arranged and a severe reprimand was
given the employees responsible for the error.
Present were Lockard, President Boyer, Personnel
Director Wallace, and Production Foreman Bidoli.
Lockard advised the men of the gravity of their
error and told them that they could be fired for
what they had done. In conclusion Lockard said
that if the "chewing" got outside the door neither
the National Labor Relations Board nor the Union
could help them. And President Boyer added that if
they got fired Mastandra and Micelli, the union
representatives, could not do anything to help
them. There is no evidence, however, that they had
been threatened with discharge if they were to re-
port the reprimand to either the Board or the
Union. 16
4. Other alleged instances of interference,
restraint, and coercion
Two additional incidents occurred that are the
subject of the complaint, both during the preelec-
tion period: the reprimand of employee DeBar-
tolome (par. 6(j) and (bb), and the allegedly coer-
cive conversation between Personnel Director Wal-
lace and employee DeLeo and Sandra Neff (par.
6(g))•
a. Union solicitation in the plant
On July 22 Romeo DeBartolome, then a
mechanic, reported to work at 6:30 a.m., as was his
custom, so that the machinery would be in proper
condition for operation on the shift which began at
7 a.m. At approximately 6:40 a.m. DeBartolome
was preparing machinery for use and as he did so,
according to his credited account, he spoke to
several men working on the third shift, " pointing
out their discrepancies." Third Shift Foreman Vin-
cent Gaeto appeared on the scene and asked De-
Bartolome why he was talking to the men. In reply
DeBartolome stated, "We were having a union
meeting."
Although DeBartolome testified that his reply to
Gaeto was made "jokingly," he conceded on cross-
examination that he gave no indication to Gaeto
that it was in jest. Gaeto's version differs little from
DeBartolome's, except that Gaeto quotes himself as
asking, "What is this, a union meeting?" Ta which
DeBartolome replied, "Yes, it is." This variance is
not significant. What is significant is whether Gaeto
really believed DeBartolome to be engaged in
union activity or to be merely joking. Gaeto's
further testimony supplies the key to this for he
testified credibly that it was his best judgment at
that time that DeBartolome was serious, thus con-
firming DeBart olome's testimony that he gave no
indication that his reply was made "jokingly."
Upon the foregoing I conclude and find, therefore,
that when Gaeto thereafter reported DeBartolome's
conduct to his superiors he did so upon the-assump-
tion that DeBartolorne had truthfully and seriously
admitted to talking to the third-shift employees
about the Union during his and their working
hours, his shift having begun at 6:30 a.m.
Upon Gaeto's report of DeBartolome's action he
was summoned to the office later- in the day and
reprimanded by Lockard in the presence of a
number of other top members of management.
Lockard referred to provisions in the employee
handbook forbidding soliciting and told him that
for such an offense he could be fired. He was told
that in the future he was not to talk about the
Union at any time, "my time or Company time."
He was also told that he was "under the gun" and if
he made any mistakes he would find himself in the
street. Later in the day DeBartolome was presented
with an official reprimand which stated that it was
for "soliciting support for an outside organization
during working hours." 17
The provision of the employee handbook which
forms the basis for the reprimands stated as follows:
ARTICLE #20-UNAUTHORIZED SOLICIT-,
ING OR GAMBLING
'O I attach no mitigating significance to the fact that the peanut butter de-
partment was then unsupervised or that the conduct might have been a
consequence of laxity on Respondent's part
16 The credited testimony of Neff, corroborated by Cherry In Lockard's
version , which I also deem to be corroborative , they were told that
recourse to the Board or the Union would not help them when they were
wrong , as they were in this instance
" The foregoing findings are a synthesis of the testimony of DeBar-
tolome , Vice President Lockard, and Supervisor Gaeto, all of whom ap-
peared to be in substantial accord, with one major exception Lockard de-
nies that he told DeBartolorne at the meeting that he might not solicit on
his own time, as testified to by DeBartolome Under all the circumstances,
including the gravity which management attached to the offense by calling
a full-dress reprimand meeting, I am disposed to accept DeBartolome's ver-
cion and view Lockard's statement as one which included nonworking time
as well as company time In thus rejecting Lockard 's version I note that ex-
cept in this one statement, "company time ", was the criteria in all other
references to this incident and to the offense
BOYER BROS ., INC. 1115
Vending, soliciting, or collecting contributions
for any purpose whatsoever on the premises of
this company unless authorized by the Manage-
ment, will result in: 1st OFFENSE-Suspen-
sion-three (3) working days with loss of pay
for that period. 2nd OFFENSE-
DISCHARGE.
b. The threat to withdraw friendship
Particularly in the light of Respondent's vigorous
efforts to defeat the Union I conclude and find that
granting of additional paid holidays and instituting
a new vacation plan when it did could not but af-
fect the sentiments of the employees in the heated
atmosphere generated by the union campaign and
by the Company's resistance movement. I therefore
conclude and find that these actions constitute un-
lawful interference , restraint , and coercion,
Next we will consider the conversation had
between Personnel Director Wallace and em-
ployees Eileen DeLeo and Sandra Neff which has
been alleged- to be coercive. Two weeks before the
election, on the occasion of a visit to the office dur-
ing the vacation period, on July 14,_ employees
DeLeo and Neff met Wallace with whom they were
both acquainted. In the course of a conversation
which followed Wallace told them that if he found
out that they had anything to do with the Union
that would be the end of their friendship.18 Mrs.
DeLeo testified that upon meeting Wallace at the
plant two weeks later he repeated the remark. I do
not credit Wallace's denial that he made the state-
ment on either occasion.
5. Conclusions
A review of the findings set forth above discloses
a definite pattern of action on Respondent's part to
thwart the Union's organizing efforts. Indeed
Respondent would be the first to concede such ac-
tivity, and has based its defense in this proceeding
upon the proposition that the steps it took were a
proper exercise of its rights under the Act. In such
a posture , therefore , evaluating the conduct is a
matter of prime concern , to determine if there in-
hers in it unlawful interference , restraint , and coer-
cion.
a. The additional paid holidays and the improved
vacation plan
On June 9, 16 days after Respondent's first
knowledge of the Union's campaign , announcement
was made to the employees through their super-
visors (supra), that three paid holidays would be
added to those then being given , and that substan-
tial improvements would be made in the vacation
plan. The timing of such benefits with the Union's
campaign cannot be viewed as mere coincidence,
nor has the Board ever so viewed such benefits.19
"In his brief to me counsel for the General Counsel attaches sig-
nificance to the fact that Wallace also adverted to the discharge of Betty
Hem y." (unpin) suggesting that by including this in the conversation the
' ft iendship" i efeience became an implied thi eat Mrs, DeLeo did mention
the Betty Henry discharge in her testimony , but only to fix the time of her
conversation with Wallace Thus on cross-examination she simply stated
that she knew the conversation occurred on July 14, because it was the
same date as Henry 's discharge, and she knew this "because he [Wallace]
b. The reprimand of DeBartolome and the no-
solicitation rule
I am satisfied that when Supervisor Gaeto re-
ported DeBartolome for engaging in union business
on company time (supra) he was accepting DeBar-
tolome's statement that it was such and not that he
was joking. Moreover there is nothing in the record
to suggest that management did not take disciplina-
ry action with this same understanding.
DeBartolome was reprimanded for engaging in
solicitation in behalf of the Union on company
time. But an employer may make and enforce a
rule forbidding his employees to engage in such sol-
icitation during working time.20 I would accordingly
find Lockard's reprimand a proper exercise of his
managerial authority.
But it must be remembered, however, that De-
Bartolome was not only reprimanded for his con-
duct but he was also warned as to future transgres-
sions-that he was not to talk about the Union at
any time. Thus there is a second element which we
must consider here. I am not so favorably disposed
to Lockard's further remarks to DeBartolome-that
he was not to talk Union at any time. This state-
ment partakes of the same vice as does the
published rule upon which Lockard appears to have
relied (supra). Thus Respondent's employees are
enjoined by the Employees' Handbook from solicit-
ing, not merely during their working time, but "on
the premises of this Company"; that is to say, at
any time. It is well settled that such restriction upon
the employees "during their non-working'time un-
lawfully interferes with their right to discuss self-or-
ganization among themselves, unless the employer
proves special circumstances that make such a
restriction necessary to maintain production or
discipline."" As no such circumstances have been
presented here I would conclude and find that the
published rule which so restricts the employees,
together with Vice President Lockard's application
of this rule in his statement to DeBartolome, each
mentioned it " As I observed her as she testified I do not judge her state-
ment on the "friendship" matter to have been consciously related to the
Henry discharge and I reject an} suggestion that it was
" R v Hill Lithograph C'onipani, 121 NLRB 831, 850
"' Pet ton Packing Co , Inc , 49 NLRB 828, 843-844
21 N L R B ^ Walton Matzufac tuning Co , 289 F.2d 177, 180 (C A 5),
Stoddard-Quirk Manufacturing Co , 138 NLRB 615
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute the unlawful interference, restraint, and
coercion implicit in the applicable decisions of the
courts and the Board.
c. Threats and promises
An employer's right to engage in speech or con-
versation in opposition to a union does not extend
to actual or implied promises of benefit or to
threats. This is implicit in Section 8(c) of the Act.
Against such a backdrop President Boyer's state-
ment that he would "get" employee DeBartolome
(supra), the known union leader among the em-
ployees, followed by such incidents as the frequent
questioning of him (supra), giving him five or six
different reprimands, one reprimand for the failure
to wear a hat given him by a hatless supervisor
(supra), and his assignment to arduous tasks
(supra) all assume a significance far beyond casual
conversation or persuasion. I would, on the contra-
ry, conclude and find that Boyer's threat to "get"
DeBartolome, effective as it happened to be, con-
stituted interference, restraint, and coercion in
violation of the Act. Nor is Boyer's statement to
DeBartolome immediately thereafter any less un-
lawful. Thus-when Boyer told DeBartolome that the
employees would "never get free hospitalization
from us" he thereby demonstrated a mind closed to
collective bargaining upon a mandatory bargaining
subject and this presents a further incident which I
also find to be interference, restraint, and coer-
cion 22
Similarly, the statement of Traffic Manager
Reighard to DeBartolome during the height of the
campaign that "Mr. Boyer probably would" close
up the plant if the Union won is the sort of state-
ment consistently construed to be unlawful inter-
ference, restraint, and coercion23 and I so conclude
and find here.
And equally coercive are the promotion overtures
made to employee Gary Neff when, at the height of
the campaign, Vice President Lockard sought him
out and in the context of questioning him concern-
ing-his union preferences, discussed in detail the
possibilities of promotion. Citation of authority is
certainly not necessary to establish that conduct of
this sort can be viewed only as an inducement to
side with the Company against the Union. As such I
find and conclude these overtures to be another in-
stance of unlawful interference, restraint, and coer-
cion.
d. Interrogation, surveillance, and the impression of
surveillance
The record and the findings set forth above are
replete with conversations which to a greater or
lesser degree contain the ingredients of questioning,
and a general inquisitiveness by management into
matters that are none of its business-namely, the
individual employee's respective feelings , attitudes,
and preferences as to their -bargaining representa-
tive. It is clear from all that transpired during the
preelection period that a fine line was established
earlier as a matter of company policy; one beyond
which Respondent sought not to tread in prying
into their employees' personal affairs, and in com-
municating to them the Company's preference not
to deal with the Union as their bargaining represen-
tative. While I am constrained to respect the letter
and spirit of Section 8(c) of the Act which bestows
free speech in this area upon an employer, I know
of no restrictions which prevent me drawing -from
obvious facts the deductions and inferences recog-
nizable to anyone of normal intelligence. What
Respondent was determined to do here was to con-
vey to its employees its -distaste for the- Union and
to glean from conversations with them a knowledge
of where each one stood in the matter. This is obvi-
ous from a reading of the findings detailed above
(supra). Under such circumstances I fail,to see how
analysis of reported incidents and citation of rele-
vant cases would add anything to what must appear
obvious even to the naive. So, whether employees
were questioned or just "talked to," the goal was
the same-were they for- or against the Union?
Further, whether supervisors were told to talk and
not to question presents more semantics than legal
distinction. For whether the supervisors "inter-
rogated" or "created the impression of surveillan-
ce" matters -little-the end result is the same. Ac-
cordingly, upon the questions propounded, the sur-
veillance suggested and executed, and the listings
made and reported by supervisors, all of which
have been detailed heretofore, I ' would conclude
and find that the Respondent, by the activities of
the top officials of the Company, W. E. and R. J.
Boyer, Lockard, and Wallace, and by its minor offi-
cials and supervisors, Hainy, Bidoli, Mascetelli, and
the other supervisors, including line supervisors
who carried out the stated instructions, effectively
interfered with, restrained, and coerced the em-
ployees during the critical period when they were
about to select their bargaining representative.
Nor is it significant that the statements made by
members of the latter group were made without the
knowledge of, or indeed contrary to, the instruc-
tions of management or its attorney, none of whom
thereafter disavowed such statements.24 The real
vice is that employees subject to the pressures of a
supervisor's remarks, be they questions or threats,
have every reason to assume that these same super-
visors are speaking for the management of which
they are a part. By the conduct set forth above
22 The Rose Company, 154 NLRB 228, 268
2' Baltimore Binding and Waistband Corp, 130 NLRB 1629, Lock Joint
Tube Co , 127 NLRB 1 146
24 Birmingham Publishing Co , 118 NLRB 1380; Birmingham Fabricating
Co , 140 NLRB 640
BOYER BROS ., INC. 1117
therefor I conclude and find that Respondent
further violated Section 8(a)(1) of the Act.
e. The "friendship" threat
One further incident remains for consideration-
Personnel Director Wallace's statement to em-
F loyees DeLeo and Sandra Neff (supra) to the ef-
ect that if he learned of their membership in the
Union it would be the end of their friendship. In his
brief to me counsel for the General Counsel argues
that this statement was an implied threat of
discharge as well as a threat to withdraw friendship
because i1 was made in the context of reference to
Betty Henry's discharge (infra). As I have previ-
ously found, Henry's discharge was "mentioned," it
is true, at the time, says DeLeo; and DeLeo herself
mentioned it in her own testimony; but only to fix
the time of the incident. I am not disposed to let
this passing reference be inflated to a full-blown
event and to thus manufacture a threat that does
not otherwise appear. On the contrary, upon my
analysis of DeLeo's testimony and observing her as
a witness I reject any suggestion that she was or felt
she was being threatened with the same fate as
Henry.
Now we are left with Wallace's threat, so-called,
to withdraw his friendship. There is no evidence
that this was a friendship of the deep and abiding
sort, or that it was of long standing. On the contrary
the record leaves me with the distinct impression
that Wallace, obviously a friendly person to begin
with, was friendly with the employees as might be
expected of him in his" official capacity. I am
directed to no authority for the proposition that this
characteristic of "friendliness" is a commodity of
substantial value to be given or withheld in the give
and take of a union organizing campaign. I am
referred to Fort Smith Broadcasting Co., 146 NLRB
752, 762, where the Board sustained the Trial Ex-
aminer's finding that a supervisor's withdrawal of
friendship, because of an employee's union sym-
pathies Was a violation of the Act. But a reading of
that case discloses that the friendship there was a
very close one, the supervisor being "one of the
best of friends the employee ever had" giving the
appearance of a relationship of more importance
than holding a job. In fairness to the individuals
concerned here, on the other hand, it must be
emphasized that there is no comparison whatever
between the cited factual situation and the casual
remarks found to,have been made here. I would ac-
cordingly dismiss' so much of the complaint as al-
leges a violation of Section 8(a)(1) by Personnel
Manager Wallace.
D. The Discharge of Betty Henry
Betty Henry was employed by Respondent as a
line supervisor, a work category which I have found
to be supervisory within the meaning of the Act
(supra). In this capacity she was required to attend
supervisory meetings, including a number of the
specific meetings discussed above, and to perform
the functions of line supervisors already discussed
in detail above. Albeit the section she supervised
operated on a seasonal basis and Henry herself
worked along with those whom she supervised; the
status of her position is in no wise altered. It is, as
we have previously noted, the power and authority
which inhers in the position and not the frequency
or intensity with which it is exercised or applied.25 I
therefore reaffirm my previous conclusion that the
specific line supervisor, Betty Henry, was a super-
visor within the meaning of the Act.
A review of the findings heretofore made and of
the substantially mutually corroborative testimony
of Henry and Vice President Lockard disclose that
Miss Henry was most active in her support of the
Union and that this became known to management
officials. Such was the situation on July 13 when R.
J. Boyer confronted her with his knowledge that
she was actively working for the Union. This she
admitted to him. Whereupon he reminded her that
she was a supervisor and was expected to work for
the Company. On the following day Vice President
Lockard called Miss Henry to his office and after a
few preliminary remarks told her that she was being
discharged. When Henry asked the reason he
replied, "Incompetent and insubordinate." Lockard
confirmed this in his testimony, stating further that
the insubordination was based in part upon Henry's
union activity. In-its brief to me Respondent con-
cedes that there was no reason for Miss Henry's
discharge other than participation in the Union's
organizing activities.
"Absent special circumstances, a statutory super-
visor does not enjoy a protected right to engage in
concerted activity in behalf of a labor organiza-
tion."" Such "circumstances" have been described
as instances where supervisors had failed or refused
to commit an unfair labor practice against rank-
and-file employees and had been discharged in con-
sequence.27
Betty Henry, a statutory supervisor, was not
shown to have been required to do anything except
to carry out instructions relating to her part in the
Company's campaign. Nor is it claimed that she
was discharged for any lapse in this area. In a word,
there were no special circumstance surrounding her
discharge. Indeed I would conclude and find that
she was discharged for, doing what all agreed she
was discharged for doing-engaging in union activi-
ties. In the absence, therefore, of any of the special
circumstances referred to above, Henry, as a statu-
tory supervisor has no protected right to engage in
the union activities as she did. I would accordingly
conclude and find that her discharge for this
'' Ohio Power Co v N L R B., 76 F 2d 385, 388 (C A 6) '' Talladega Cotton Factory, Inc, 106 NLRB 295, enfd 213 F 2d 208
2' National Freight, Inc, 154 NLRB 621,622 (C A 5), Ozark Motor Lines, 164 NLRB 300
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific reason was not a violation of either Section
8(a)(1) or (3) of the Act and I would recommend
that so much of the complaint as alleges that it does
be dismissed.
line supervisors' and all other supervisors as
defined in the Act.
2. The critical date
E. The Refusal To Bargain
It is General Counsel's contention that the
Union, upon its request to bargain (supra) already
represented a majority of the employees in the bar-
gaining unit agreed upon by the parties prior to the
August 17 election (supra). This, it is claimed; can
be established by the signed union authorization
cards upon which the majority was first asserted.
Accordingly, it is contended, because the Respon-
dent's subsequent doubt of this claim to majority
was not made in good faith, as indicated by sub-
sequent unlawful conduct, and because the conduct
was calculated to destroy the Union's established
majority, the Respondent thereby refused to bar-
gain with the Union in good faith.
Respondent, on the other hand, claims that the
bargaining unit in which the Union's majority is
claimed is not an appropriate one regardless of an
agreement to accept it as such in the earlier
representation proceeding. Additionally Respon-
dent has registered a number of objections to the
use of signed authorization cards which includes
the eligibility of some of the employees for whom
cards were presented and the manner in which the
authorizations were procured. Because the defini-
tion of the unit appropriate for bargaining and the
establishment of this majority claimed by the Union
are essential to any finding of a refusal to bargain
an analysis of these issues becomes the first order
of business.
1. The appropriate unit
Elsewhere herein I have concluded and found
that the position of line supervisors, as described in
the credible testimony is supervisory within the
meaning of Section 2(11) of the Act, for it is abun-
dantly clear that those who hold the position
responsibly direct employees assigned to them and
that in the exercise of their authority they are
required to use their independent judgment. I
would accordingly conclude and find that irrespec-
tive of any agreement or arrangement to the contra-
ry2S the unit of employees-appropriate for the pur-
poses of bargaining is:
All production and maintenance employees,
truckdrivers and shipping and receiving em-
ployees, at the Employer's Altoona, Pa., plant;
excluding all other employees, office clerical
employees, guards, professional employees,
'" In a previous section of this Decision I have concluded that Board
precedent does not require adherence to stipulations or agreements in the
representation case which are contrary to existing fact, statutory enact-
ments , or settled law, supra
Critical to a determination of the request to bar-
gain and the refusal is'a determination of the date
upon which the claim was established. It was on
July 6, 1966, the Union made its demand 'upon
Respondent for recognition and bargaining upon a
claim of'majority'status. I conclude and find that as
of this date, July 6, that it must be established that
the Union represented a majority of the eligible em-
ployees in the unit which I have found to be ap-
propriate.
3. The total eligible employees
Preliminary to the trial of this matter a list of em-
ployees was prepared and agreed upon. It was
stipulated that on various dates during the period
between June 28 and July 17, 1966, 223 listed in-
dividuals were employed. Specifically it,was -stipu-
lated that on July 6, 1966, the date of the Union's
claim to majority status, 220 were employed. This
total included Patricia Tresise and Philip Jenkins of
whom it is found by stipulation 'and credited
testimony, respectively,-that they were actually in
Respondent's employ on July 6. The total does not
include the names of Mary Blake Weltmer or Mary
Butler, neither of whom were employed after June
30 29
Twelve names on the list were those of the line
supervisors whom L had previously listed by name
as being statutory supervisors (supra). I conclude
and find that they are not a part of the bargaining
unit and that the total of the unit be reduced ac-
cordingly; and I direct that their union authoriza-
tion cards, if any there be, not be counted for pur-
poses of determining majority status.
Over General Counsel's objection Respondent
contends that six employees were eligible members
of the bargaining unit although in layoff status dur-
ing all or part of the June 28-July 17 payroll
period. Their names appeared on the list as being of
questionable status. These were Jean Huntsman,
Carole Marlett, Mary Mobley, Donna Quarry, Ruby
Robertson, and Carol Smith. In support of its argu-
ment to include them Respondent submitted a list
of all employees who were in layoff ' status during
the week ending July 10, the week during which
Respondent refused to bargain. Fourteen em-
ployees were listed as being in layoff status, the six
in question and seven others who voted in the sub-
sequent election and whose eligibility status,
generally, is unchallenged. One additional name on
"These four names are specifically referred to at this point for the
reason that each signed a union authorization card which would or would
not be counted depending upon the employment status of the signer as of
July 6, 1966
BOYER BROS ., INC. 1 119
the list was Janet Mauk whom I have previously
found to be a supervisor (supra).
Upon full consideration of this layoff list, con-
taining as it does the recent employment history of
each employee involved, and upon the testimony of
Personnel Director Wallace and employee Jean
Huntsman whose employment history I consider
typical of those in layoff status, I am persuaded that
in each case, including the cases of the six em-
ployees in question, these was as of July 6, 1966, a
reasonable expectancy of their return to work in
the future. Thus each had been laid off and recalled
at least once prior to the date in question and all
have been recalled since that date. Indeed the six
employees in question appear to be in a different
category from the other seven in layoff status only
because their return from layoff status was too late
for them to be included among those on a sub-
sequent (July 22) eligibility list for the up-coming
election. In all other respects their eligibility is as
unquestioned as the seven who actually voted.
It is not my province to determine who was eligi-
ble to vote in the election. On the contrary, I am
required to determine upon the facts presented me
who, as a matter of law, were employees in the ap-
propriate unit on July 6, the date of the Union's de-
mand for recognition. This was 2 weeks before any
election or election eligibility was ever agreed
upon. In this respect, then, I am satisfied that re-
City Zone
gardless of the precise day upon which they shortly
thereafter returned to work, all six were employees.
with a reasonable expectancy of future continuing
employment on July 6. I would accordingly con-
clude and find that all six, Jean Huntsman, Carole
Marlett, Mary Mobley, Donna Quarry, Ruby Robert-
son, and Carol Smith were properly part of the total
bargaining unit when a request to bargain was
made.3o
By way of recapitulation the 12 line supervisors
should not be included in the bargaining unit. Ac-
cordingly, the gross total of the unit, as of July 6,
would be reduced from 220 to 208. As I would
retain on the list the names of the six employees on
layoff status, and the names of Tresise and Jenkins,
the total of 208 would constitute the one upon
which majority status would be determined. Ac-
cordingly, to demonstrate its numerical majority on
the date upon which it requested collective bargain-
ing, July 6, the Union must establish that it had
been designated by 105 or more employees then in
the unit.
4. The signed authorization cards
During the course of its organizing campaign the
Union solicited signatures of the employees on
cards which bore the following inscription:
AUTHORIZATION FOR REPRESENTATION
I, the undersigned
(Please Print Name)
Home Phone Type of _woik
CONFIDENTIAL I
AUTHORIZATION
CARD
Employed by
Company name Shift
I hereby apply for membership in the Bakery and Confectionery Workers International Union of
America, Local No, , .. and I authorize and designate that Union to represent me for
collective bargaining with my employer.
Signed
Please write Date
ALL CARDS ARE KEPT CONFIDENTIAL BY B&C and the UNITED STATES GOVERNMENT
Snap-Out Binding & Folding, Inc, 160 NLRB 161
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Eligible employees who had read and signed the
Union's authorization cards
Cards, to the total of 71 were signed prior to July
6, 1967, the date .of the Union's request for recog-
nition, by employees in the bargaining unit who
credibly attested to their own signatures, the date
,on which they signed the card, and that they had
read the card before signing it.31 These cards were
signed by the following:
Patricia A. Tresise Gary McCormick
Eileen DeLeo Dennis Appleman
Sandra Neff Sandra J. Price
Gary L. Neff Dona J. Riggleman
Saundra Brumbaugh Paul L. Rider, Jr.
Mildred Metzgar Janet Siters
Virginia Glacken Karen A. Reesemali
Kathryn E. Steward Edward G. Lee
Joan Diehl (Stock) Phillip B. Jenkins
Jean Grafus James Robinson, Jr.
Sandy Kieseweter Roy R. Litzinger
Doris Lindemer William F. George
William P. Harlow Ronald Biem
Gary D. Himes Norma J. Hunt
Faye L. Imler Rose M. Troutman
Judith A. Terry Lois Decker
D. E. MacDonald Cecilia Cooper
Frank R. Weidlich Walter L. King
Donald L. Brooks Jean Fanella
Robert M. Byrnes Barbara Bailor
Glenn A. Himes Betty L. Miller
Margaret Igou Rita Brothers
Gary T. Cockburn Sandra Eversole
Anna N. Brunner Genevieve Brubaker
Helen Martin Clair L. Cherry
M. A. Manocchio Phyllis M. Smouse
Barbara McPhee Paul E. Runk -
Betty H. Beaver Margaret L. Ebling
Mary E. Smith Donald O'Brien
Jean Spahn Sandra L. Lebo
Romeo J. DeBartolome, Jr.
Shirley M. McCachren
Linda Dickson (Schilling)
Joan Partner (Lonesky)
Cathy Wasylik (Fetterman)
Nancy M. Smith (Detwiler)
Michael I. Montgomery
Gerald J. Jenniger
Vicki Burk (Teegardin)
Carol Burkhard (Farber)
Rhonda R. Pulcinello
b. Card signers who were aware of the union
campaign
In addition, prior to July 6, cards were signed by
10 employees, all of whom attested to their signa-
tures and the dates upon which they signed the
respective cards. The record is silent, however, as
to whether, or not they read the card prior to sign-
ing. These were the following: Dorothy -Crider,
Harry Martin, Jerry Corles, Jean. Huntsman, Mary
Lou Eckenrode, John Lear, Benjamin Froshey,
Christine Raia, David Halton, and Dorothy Stewart.
In each case the circumstances surrounding the
signing are such, however, as to persuade me that
the employee was fully aware that he was selecting
the Union to represent him, as stated on the card
which he signed. Thus employee Crider credibly
testified that she discussed the card with her
husband before signing it and it appeared from the
-testimony of employee Manocchio that Mrs. Crider
was actively engaged in soliciting signatures of, em-
ployees. Employee Eckenrode credibly testified
that she discussed the authorization card with her
mother before signing it, Indeed the whole tenor of
her testimony indicates that she was quite aware of
the nature of the card. Employee Raia, who
testified that she had not read the card, credibly ex-
plained that she did not have to read it, being
familiar with union authorization cards from previ-
ous employment. Employee Halton credibly
testified that he was given a card after being asked
"if I wanted the Union in." Employee Martin, in
describing the circumstances of his signing of the
card, quoted the union solicitors as telling him
they wanted him to sign the card "to get the'Union
in." Employee Lear was also told when he was
given the card that it was "to get the Union in."
Employee Corles testified that he signed the card to
have the Union represent him. Employee Forshey
credibly described conversations with fellow em-
ployees, many of whom he solicited for signatures,
where the prime interest was "to be represented by
a union ." Employee Dorothy Stewart was aware of
the campaign "to have a union represent us" when
she signed her card. And employee Huntsman
received her card in the mail while she was in layoff
status and before she signed and returned her card
she telephoned a number of her friends "to find out
if they were being signed." It may readily be
presumed that she had read the card about which
she had made such a deliberate inquiry.
The employees listed in the two foregoing
categories, all members of the bargaining unit, hav-
ing read the printed materials on the cards which
11 Consistent with the discretion vested in me by the Board the witnesses
called by the General Counsel were cross-examined fully on voir dire, with
my permission, as to the circumstances under which they signed the
authorization cards Brtant Chucking Grinder Company, 160 NLRB 1526
in the course of the cross-examination of employees testifying to the
signing of cards I permitted counsel foi the Respondent, over General
Counsel's objection, to examine the i espective witnesses as to their sub-
jective understanding and intent in signing the card At the close of the
trial counsel renewed its ohJection to this line of questioning and moved to
strike the testimony I iesci ved i tiling
Upon a study of the record and relesant authority I have reconsidered
my earlier rulings in this area and at this time sustain counsel for the
General Counsel's objection to questions relating to a card signer's subjec-
tive intent and grant his motion to strike such testimony in answer thereto
Aero Corporation, 149 NLRB 1283, 1290 1 accordingly do not consider
any of such testimony in the conclusions which I reach herein
BOYER BROS ., INC. 1121
they signed or being otherwise aware that the card
they signed was "for the Union," have established
to my satisfaction by the cards which they signed
and which came into the Union's possession prior
to July 6, that they have each selected the Union as
their bargaining representative as of that date, and I
so conclude and find.
Nor is it significant that upon cross-examination
in some instances the card signer may have in-
dicated that obtaining an election was of prime con-
sideration.32 "The wording of the authorization
card is an important factor in determining whether
an employee meant to authorize the Union as his
bargaining agent. Where a card is clear on its face,
as designating the Union as his bargaining agent, it
is not subject to parole impeachment merely
because the employee was told that the purpose of
the card was to secure an election. The card itself
effectively advises the employee of the purpose to
constitute the Union as bargaining agent."33
c. Card signers unavailable to testify
Cards were proffered at the trial signed by em-
ployees employed in June and early July 1966 but
who have since that time left Respondent's employ
and who for a variety of reasons were not available
to testify with -respect to the -circumstances sur-
rounding the signing of their respective cards.
Although Respondent concedes the authenticity of
the signatures on each of the proffered cards it ob-
jected to their introduction because of its lack of
opportunity to establish the cards' validity. In this
respect it is to be noted that when cards were
received by the Union their receipt was,recorded
upon a master check list of the employees which it
maintained during the organizing campaign, as
thereafter, discussed in the case of Gary Runk's
missing card: An inspection of this check list as it
appears in the record reveals that all of the con-
tested cards discussed hereafter were recorded as
having been received by the Union during the cam-
paign, i.e., prior to the Union's request for recogni-
tion. A consideration of the individual cards fol-
lows: Joseph W. Tierney signed his card on June 9,
1966, was employed-on July 6, 1966, and was not
available to testify by reason of service in the
United States Army, stationed at Fort Gordon,
Georgia. David T., Rossbach signed his card on
June 10, 1966, was employed on July 6, 1966, and
was not available to testify by reason of being
presently a member of the United States Armed
Forces serving in Viet Nam. Marry Anna
Krywokulski signed her card on June 10, 1966, was
employed on July 6, 1966, and was unavailable to
testify by reason of her present attendance at col-
lege in Lockhaven, Pennsylvania. Sandra Nedimyer
signed her card on June 10, 1966, was employed on
July 6,1966, and was unavailable to testify, having
moved from the area and presently residing in Ash-
bury Park, New Jersey. Patricia A. Eger signed her
card on- June 23, 1966, was employed on July 6,
1966, and was unavailable to testify by reason of
personal incapacity which made her attendance im-
possible. Cloyd A. Davis, -Jr. signed his card on
June 10, 1966, was employed on July 6, 1966, and
was unavailable to testify by reason of service in the
United States Army, stationed in Germany. Rose
Dascanio signed her card on June 13, 1966, was
employed on July 6, 1966, and was unavailable to
testify, having moved from the area and presently
residing in San Diego, California. James Crist
signed his card on June 13, 1966, was employed on
July 6, 1966, and was unavailable to testify by
reason of service in the United States Army sta-
tioned at Fort Gordon, Georgia. William E. Black
signed his card on June 29, 1966, was employed on
July 6, 1966, and was unavailable to testify by
reason of service in the United States Army, sta-
tioned at Fort Lee, Virginia. Anna Marie Belie
signed her card on June 23, 1966, was employed on
July 6, 1966, and was unavailable to testify, having
moved from the area and-presently residing in Fall
River, Massachusetts. John Mollica, Jr., signed his
card on June 10, 1966, was employed on July 6,
1966, and was unavailable to testify by reason of
service in the United States Army. His station as-
signment was not known. Carol Rinker signed her
card on June 3, 1966, was employed on July 6,
1966, and was unavailable to testify by reason of
serious illness requiring her hospitalization at the
time of the trial. Millie Edwards signed her card on
June 10, 1966, was employed on July 6, 1966, and
after diligent search could not be located to testify.
Nancy Tremmel signed her card on June 13, 1966,
was employed on July 6, 1966, and after a diligent
search could not be located to testify. David Camp-
bell signed his ' card on June 14, 1966, was em-
ployed on July 6, 1966, and after diligent search
could not be located to testify. Robert D. Shaw
signed his card on June 29, 1966, was employed on
July 6, 1966, and after diligent search could not be
located to testify.
As previously noted the authenticity of the signa-
tures on these 16 cards is conceded, and Respon-
dent objects to their inclusion among those
proffered by the Union only for the reason that it
had no opportunity to cross-examine the respective
signers and thereby test the validity of the cards.
In this respect Respondent suggests the possibili-
ty of direct or indirect coercion, threat, or substan-
tial misrepresentation, any instance of which -would
invalidate the card and possibly cast doubt upon
the validity of others. After 7 days of hearing and
the appearance of approximately 115 witnesses,
and with ample time before and- after the trial, it
" See fn 3I in which I have ruled that I am not relying on testimony
which relates to a card signer's subjective understanding or intent
' N L R B v . Saganiore Shirt Company, 365 F 2d 898, 906 (C.A D.C.)
See also Brandenburg Telephone Company, 164 NLRB 825 _'
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seems to me that Respondent has had full opportu-
nity to explore all avenues of possible skulduggery
in the procuring of union authorization cards. All
that has been revealed, however, and this after
vigorous cross-examination and leading questions,
is that a number of employees were of the impres-
sion that as a result of their signing authorization
cards an election would be forthcoming; an impres-
sion, incidentally, which, by the nature of its sub-
jective character has been consistently rejected as
probative evidence by the Board.34
Absent therefore any evidence or indeed sug-
gestion that the subject cards, or any others, were
procured by subterfuge, coercion, or other devious
means, and with the full opportunity to explore
such possibilities, generally, I reject Respondent's
argument directed in opposition to the admission of
the cards into evidence and their inclusion among
those proffered by the Union.35 I will therefore in-
clude among the valid cards supporting the Union's
claim of majority' status on July 8 the cards of:
Joseph W . Tierney
David Rossbach
Mary N. Krywokulski
Sandra Nedimyer
Patricia A. Eger
Cloyd A. Davis, Jr.
Rose Dascanio
James Crist
William E. Black
Anna Marie Behe
John J. Mollica, Jr.
Carol Rinker
Millie Edwards
Nancy Tremmel
David Campbell
Robert D. Shaw
d. Individual cards
The cards of certain other employees require in-
dividual consideration which follows: Janice
Yarmish identified her card as being signed by her
on June 9, the date indicated on the card. She was
not asked if she had read it or knew what the card
was. Clarence Holton identified the signature on
the authorization card as his own and the date of
June 29 as the one upon which he signed the card.
While there is no evidence that he read the card
which he signed he was well aware- of the union
campaign then in progress and so testified.
Cathleen Vinglass (Kochara) identified her signa-
ture of an authorization card which she returned to
employee Smouse. Mrs. Vinglass testified that she
did not read the card before she signed it. She did
state, however, that when she received the card
from employee Smouse she asked her "if I would
sign , this union card."
- " Cumberland Shoe Corporation, 144 NLRB 1268, enfd 351 F 2d 917,
920 (C.A 6) See also S E Nichols'Company, 156 NLRB 1201, enforce-
ment of 8(a)(5) remedy denied 380 F 2d 438 (C A 2) With all due
respect to the Court of Appeals for the Second Circuit I have no alternative
but to follow the course of orderly procedure by applying established
Board precedent which the Board or the Supreme Court has not reversed
loci a Beef Packers, Inc, 144 NLRB 615, enfd 331 F 2d 176 (C A 8)
" Mink-Dayton, Inc, 166 NLRB 604, fn 30, I Taitel & Son, 119 NLRB
910, 912, enfd 261 F.2d I, 4 (C A 7), Nortlniest Engineering Company,
158 NLRB 624, 629
Each of the above-discussed situations have a
common factor-there is no evidence that they
read the card before signing it, and in the case of
Vinglass, there is evidence that she had not read
the card before signing it . Without citing authority
for the proposition I am distinctly inclined to the
view that in the absence of evidence to the contra-
ry, and in the absence of evidence of fraud and
misrepresentation, a person signing a document is
presumed to know what it is they have signed and
to be bound by the consequences of their action.
Secondly, in the absence of fraud or misrepresenta-
tion no one has ever been shown to have success-
fully disavowed his signature to an, otherwise valid
contract, or indeed to a check, on the protestation
that he had not read what he signed.- I see nothing
more sacred or unusual about the signing-of a union
membership and authorization card that would per-
mit normal, intelligent people to avoid their volun-
tary action. Indeed to question the motives and ac-
tions of employees contradicts, it would seem, the
very freedom of choice upon which the whole
selection process depends. I would accordingly in-
clude among the cards supporting'the union claim
those signed by Janice Yarmish, Clarence Holton,
and Cathleen Vinglass.
Gary Runk: it appears from the credited
testimony of Union Representative Micelli, Gary
Runk, and his brother Paul Runk that Gary Runk
signed a union authorization card' which has since
been lost. Thus Gary Runk credibly identified a
specimen union authorization card as identical to
the one he signed in mid-June 1966 and mailed.36
Paul Runk testified that he witnessed the signing
and heard his brother state that he would mail it.
And Micelli credibly testified that union records
disclosed that the card was actually received by it
as evidenced by a check mark on the Union's
master list of employees which it maintained during
the organizing campaign. Upon ' the foregoing I
would find and conclude that Gary ' Runk timely
submitted to the Union a valid union authorization
card.37
Albert Erculiani and Richard Erculiani: a
question arose at the- hearing respecting the authen-
ticity of the cards of Albert and Richard Erculiani.
Although Richard Erculiani acknowledged his own
signature and the date on the card, June 23, 1966,
a question was raised respecting a dissimilarity
between it and specimen signatures in Respondent's
files. Upon Richard's credited testimony I deem the
Gary Runk was not certain to whom he. mailed the card; stating in
answer to an inquiry, "I guess to the Labor Relations Board " I do not ac-
cept Runk's uncertainty in this matter as dispositive of the issue, On the
contrary an inspection of authorization cards in evidence discloses that all
cards submitted by mail were preaddressed to union headquarters I am not
disposed to make an exception as to Runk's card merely because his recol-
lection is faulty I accordingly conclude and find that this card, like all
others mailed, was addressed to union headquarters
" Queen City Transports, 141 NLRB 964, 973
BOYER BROS ., INC. 1123
signature to be his own and will include the card
with those supporting Union's majority claim. Al-
bert Erculiani was not available to testify respecting
his card. His brother Richard credibly testified,
however, that he witnessed the signing on June 22,
1966. Upon this testimony and that of a handwrit-
ing expert called to verify Albert's signature I ac-
cept the card as valid and will include it with the
others proffered by the Union.
Timothy L. Hale: after identifying his signature
on his card, verifying its date and stating he had
read it, including the fine print, Timothy L. Hale
testified on cross-examination that employee De-
Bartolome, in soliciting his signature stated, "All it
is is just to get an election in there." Upon the
credited denial of this statement by DeBartolome
and the testimony of Paul Rider who witnessed the
incident I do not accept Hale's testimony that he
was told that the card was "just to get an election."
On the contrary, upon Hale's testimony that he
read the card before he signed it3s I will include the
card with those supporting the Union's claim.
Harry Bliss Burns, on June 1, 1966, signed a card
mailed to him by the Union. In doing so he crossed
out the word "membership" in the printed sentence
which read "I hereby apply for membership, etc.,"
and substituted the words "information of what you
can do for me"; thus causing the corrected sen-
tence on his signed card to read, "I hereby apply
for information of what you can do for me." He did
not, however, cross out that printed portion which
followed, whereby the signer authorized and
designated the Union to represent him as bargain-
ing representative.
At first glance it would appear that Burns' cor-
rections on the card would be dispositive of its
validity. At the trial, however, I sought to satisfy
myself as to the purpose of the corrections he made
on the card and the following colloquy occurred:
TRIAL EXAMINER: You have made this offer
and I have some questions to ask him about
this whole transaction myself. Why did you
scratch out the word "membership?"
THE WITNESS: Because I didn't want mem-
bership.
TRIAL EXAMINER: You didn't want to be a
member?
it.
THE WITNESS: I didn't know anything about
TRIAL EXAMINER: You also say in your state-
ment (the witness' pretrial affidavit) ". . . I did
not want to become a member. At that time I
did not intend to authorize the Union to
represent me." Why didn't you scratch that
out?
THE WITNESS: No reason.
TRIAL EXAMINER: No reason. But you didn't.
When you decided that you didn't want to be a
member you specifically scratched out. At the
time you signed this, did you also not want the
Union to represent you?
THE WITNESS: Yes, I suppose so. If I wasn't a
member they could not represent me.
TRIAL EXAMINER: That is not what I asked
you.
MR. FIRST: That is his understanding.
THE WITNESS: That is my understanding.
TRIAL EXAMINER: At the time that you
signed this card, did you want the Union to
represent you or did you not want the Union to
represent you?
THE WITNESS: Well I thought membership, I
thought if you were a member or something
they represented you. If you wasn't a member
they didn't.
TRIAL EXAMINER: You read the card, didn't
you?
THE WITNESS: Yes sir.
TRIAL EXAMINER: You see what it says on
the card, read it again . There are two segments
to that statement. One has to do with member-
ship and the other has to do with authorization.
You specifically scratched out membership
because you didn't want to be a member. If as
you said you didn't want them at that time to
represent you why didn't you do in that respect
as you did with regard to membership and
scratch it out?
THE WITNESS: I really didn't give it that
much thought I guess.
Upon a consideration of the entire record, particu-
larly Burns' admission that he read the card, and
upon my observation of him as an astute person, I
am persuaded that he knowingly intended that the
authorization portion of the card remain intact, that
he was not then persuaded to actually join the
Union, and that he knowingly differentiated
between union membership and authorization for
majority representation. I would therefore include
Harry Bliss Burns' card among those proffered by
the Union in support of its majority claim.
Robert J. Franke first testified that he received
his authorization card from employee DeBar-
tolome, that he did not read the card when he
signed it on June 29, and that 2 days earlier DeBar-
tolome had told him that they needed 50 percent to
75 percent of the employees signed up to get an
election. This, Franke testified, was the only reason
he signed the card.
After exhaustive examination of Franke his
further testimony disclosed that he had actually
received and signed two identical cards, but at dif-
ferent times, one after the June 29 signing. He also
testified that he actually had read a second card
that he signed. He reasserted his statement, how-
ever, that he did so only to get an election.
A review of Franke's testimony persuades me
that he indulged in a pattern of deliberate evasion,
" N L R B v Sagamore Shirt Co., supra
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempting to withhold the fact that he signed and
read a second card. I therefore do not credit him,
excepting only his admission that he did read the
second identical-card which he signed.
Franke having- admitted to reading the second
card I do not believe that he signed it or the first
one for some purpose less than he actually knew it
to be for. I therefore direct that the card which
Robert Franke signed on June 29 be included
among those proffered by the Union in support of
its majority status. -
Walter Carothers identified his signature on his
authorization card and verified the date upon which
he signed it, May 24, 1966. After some confused
testimony as to the manner in which he received
the card he testified on cross-examination that in
the course of the union representatives' solicitation
of his signature he was told, "If you didn't sign one
there would be a fee of $25 if they got in and you
didn't sign the card." Union Representative Micelli
was later called as a rebuttal witness by General
Counsel but was not questioned on the subject.
Union Representative Mastandria, similarly called,
was asked if he advised Carothers in the manner
previously described, and his only answer was, "No
sir, -I don't- think I met the gentleman."39 In this
state of the record I deem Carothers' statement
substantially undenied and I credit it.
Clearly Carothers was being offered an economic
inducement to sign a card authorizing the Union to
represent him. Because such conduct stands .on no
different footing than an economic inducement by
an employer to an employee that he forego union
representation, I have no hesitancy in equating the
former with the latter, concluding that on its face
the, Union's, offer invalidates Carothers', card. I
would accordingly direct that it not be counted.
Because, however, there is no evidence whatever
that Carothers?' experience constituted a practice or
pattern of conduct on the part of the Union I-reject
the suggestion that the Union's majority status
would be destroyed, other than by the elimination
of Carothers' card.4o
Elizabeth Park credibly testified that she signed
her card some time prior to the beginning of the
plant vacation on July 11, 1966.41 Although she
testified to not having read the card she was aware
that it concerned, getting the Union into the plant
She further testified that when employee Mary
Blake gave her the card to sign she said, "Well,
practically everyone is voting for the Union.." To
which Mrs. Park replied, "Well, I will vote too,"
and signed the card. On cross-examination when
asked if she would have signed the card if she had
known that everyone was not signed she replied,
"No, I wouldn't have signed it.," -
When it is misrepresented to an employee that a
majority of the employees had already signed cards
and it has been established that that solely in
reliance upon the information the employee then
signs the authorization card, it is now well settled
that such a card is not valid for the purpose of
establishing a majority claim.42 By her own credited
admission Mrs. Park asserts that, she would not
have signed the card but for the misrepresentation
of employee Blake. I accordingly direct that the
card of Elizabeth Park not be included among those
proffered by the Union to establish its majority
status.
Janie Long credibly testified that she signed a
union authorization card without reading it on June
11, 1966. She testified further on cross-examination
that she did not know the employee who gave her
the card to sign but she did recall that she was told
that the card was just for an election and she
testified that she would not have signed it other-
wise. Because Miss Long has thus signed her card
solely upon the misrepresentation that she was
doing so only-to get an election I will direct, in con-
formity with established precedent,43 that her card
not be counted.
e. Recapitulation
By way of recapitulation I conclude and find that
the Union proffered to. the Respondent on July 6,
1966, a total of 106 valid, authenticated cards
signed by its employees authorizing the Union to
represent them for the purposes of collective bar-
gaining.
f. Conclusions
In the bargaining unit agreed upon as appropriate
I have found that on July 6, 1966, the date upon
which the Union requested recognition as the
majority representative of Respondent's employees,
there were 208 eligible employees. To constitute a
numerical majority 105 of these would be required
to have authorized the Union to represent them. On
the basis of the findings I have made herein I con-
clude and find that, as of July 6, 1966, 106 of these
employees did so, having signed authorization cards
which Hind to be valid, authentic designations.
Respondent's refusal to acquiesce in the Union's
request to submit these; authorization cards to a
neutral third party for the purpose of checking its
Js Over Respondent's objection I permitted counsel for the General
Counsel to question a witness in such a manner as to impeach an earlier
witness called by the General Counsel I reaffirm my ruling at'this time
upon the authority of Plumbers and Steamfitters Union Local 100 (Beard
Plumbing Company), 128 NLRB 398, citing Wigmore, Evidence, Sec. 907
(3d ed 1940)
40 Cf. Gafner Automotive and Machine, Inc , 156 NLRB 577, Ottenheimer
and Company, Inc, 144 NLRB 38
" Upon the credited testimony before me I view the date of "7/30/66'
insccribed by Mrs Park on her authorization card as incorrect and find it to
be actually June and not July
° LT.T Senn-Conductors, Inc, 165 NLRB 716, citing Home Pride Provi-
sion, Inc., 161 NLRB 634, N L R B v. Sagamore Shirt Company, supra,
Merrill Engineering Laboratories , 158 NLRB 1113
4s Peterson Brothers , Inc, 144 NLRB 679, enfd 342 F 2d 221 (C A 5)
BOYER BROS ., INC. 1125
majority claim is based, it is true, upon the asser-
tion that the Employer had a good-faith doubt as to
the existence of such majority status and a doubt as
to the character of the cards themselves. This
refusal to recognize and bargain with the Union
must be examined, however, in the light of all the
relevant facts, including the conduct of the Em-
ployer contemporaneous with the initiation of the
Union's organizing campaign and the sequence of
events which followed.44
Even as the Union announced in a letter ad-
dressed to the employees its plan to organize them
Respondent admittedly instituted its own campaign
"to sell the Company" and in the process engaged
in a profusion of conduct which I have already
found to constitute unlawful interference, restraint,
and coercion. Where, as here, the Union, in fact,
represents a majority of the employees as shown by
the analysis of the signed cards relied upon by it in
its request for recognition and bargaining, and the
Employer has anticipated this by engaging in activi-
ty designed to thwart the Union and undermine its
majority status the Board may properly remedy
such unlawful conduct and restore the status quo
by requiring that the Employer bargain with the
Union, all quite apart from the Employer's con-
sistent willingness to go through with an election.45
Moreover, it is well settled that where, as here,
timely and meritorious objections to the election
have been filed by the Union the Board may, as
proper restoration of the status quo, require bar-
gaining even though the Union participated in the
election and lost.46
Upon consideration of the foregoing, therefore,
and upon the basis of the findings and conclusions I
have made, herein I conclude and find that by refus-
ing to, recognize and bargain with the Union upon
its presentation of 106 valid cards signed by the
employees; designating it to represent them the
Respondent then and thereafter refused to bargain
with the Union in violation of Section 8(a)(5) of
the Act.
F. The Objections to the Election
As previously noted, the Union, on August 19,
1966, filed timely objections to conduct affecting
the elections and a hearing upon these objections
were consolidated with the instant proceeding. A
review of the pleadings in this respect discloses that
the objections raised are substantially identical with
the allegations of violations of Section 8(a)(1) and
(3) in the complaint. To the extent, therefore, that
I have already treated of these allegations and
found certain of them -to constitute unlawful con-
duct, as alleged, it would'be an undue burden upon
the record and the reader to reiterate these findings
in a parallel context. Suffice it to say that in the in-
stances of interference, restraint, and coercion
which I have already found (supra), it is an a for-
tiori conclusion that such conduct interferes with
the exercise of the free choice of voters necessary
for an election." Accordingly, , shall recommend
that the representation election heretofore held in
Case 6-RC-4185 be set aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE ;
The activities of the Respondent set forth in sec-
tion IV, above, occurring in connection with its
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several.
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that Respondent hasvio-
lated the Act in certain respects, I will accordingly
recommend that an order issue requiring Respon-
dent to cease and desist therefrom and to take affir-
mative action which will effectuate the policies of
the Act. Nothing herein shall be deemed, however,
as requiring Respondent' to vary such vacation and
holiday pay arrangements as have been made as
described herein .48
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations
Act, as amended, I recommend49 that Boyer Bros.-,
Inc., its officers, agents, successors, and assigns,
shall: -
1. Cease and desist from.
(a) Offering additional paid holidays, improved
vacation benefits, and promotion to supervisory
jobs to its employees as inducements ' to' their voting
against-Bakery and- Confectionery Workers' Inter-
national Union of America or any other' labor or-
ganization. -
(b) Interrogating its employees unlawfully as to
their union membership and activity. --
- (c) Creating among its employees the impression
that their individual union activities and sentiments
were known to it.
44 Jac Silk Mills, Inc , 85 NLRB 1263
"See, e g., N L R B v Model Mill Company, Inc, 210 F.2d 829 (C A
6); N L R B v Armco Drainage & Metal Products Inc, Fabricating Divi-
stoti, 220 F 2d 573, 577 (C A 6), cert denied 350 U S 838
41' Iri ing Air Chute Conipa s, Inc, Marathon Division, 149 NLRB 627,
atfd 350 F 2d 176 (C A 2) -
4' Irving Air Chute Conipant, Inc supra
41{ Golden State Battling Co , Inc , 147 NLRB 410
41 In the event that this Recommended be adopted by the Board, the
words "recommended" shall be deleted' fiom the Caption and wher-
ever else it appears thereafter,'and for the words-1 recommend" they shall
be substituted "The National Labor Relations Board Hereby Orders "
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d`) Stating its refusal to grant hospitalization
benefits to its employees in any bargaining negotia-
tions in which it might thereafter engage.
(e) Threatening its employees it would close its
plant. in the event the aforesaid Union won the elec-
tion.
(f) Assigning its employees to jobs inferior to
their classification in reprisal for their support of
the aforesaid Union or any other.
(g) Publishing in its employee information
materials and otherwise informing employees that
they are prohibited from engaging in union activity
on plant property.
(h) Refusing to bargain collectively with Bakery
and Confectionery Workers' International Union of
America as the exclusive representative of em-
ployees in the following unit found to be ap-
propriate for the purposes of collective bargaining:
All production and maintenance employees,
truckdrivers and shipping and receiving employees
at the Employer's Altoona, Pennsylvania, plant; ex-
cluding all other employees, office clerical em-
ployees, guards, professional employees, line super-
visors, and all other supervisors as defined by the
Act.
(i) In any like or related manner interfering
with, restraining , or coercing employees in,the ex-
ercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all Respondent's employees in the
unit found appropriate and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its Altoona, Pennsylvania, plant, co-
pies of the attached notice marked "Appendix. "so
Copies of said notice, on forms provided by the Re-
gional Director for Region 6, after being, duly
signed by the Respondent's representative, shall be
posted by it immediately upon receipt thereof, 'and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.51 -
IT IS FURTHER ORDERED that the e lection in Case
6-RC-4185 be set aside.
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT offer you additional paid
holidays, improved vacation benefits, or
promotions to supervisory jobs to induce you
to vote against the Bakery and Confectionery
Workers' Union of America, or any other labor
organization. -
WE WILL NOT unlawfully question you about
your union membership or activities.
WE WILL NOT create the- impression among
you that we know your individual union senti-
ments or activities. -
WE WILL NOT announce that in any bargain-
ing in which we hereafter engage that we will
refuse to grant hospitalization benefits.
WE WILL NOT threaten you with closing our
plant if you select the Bakery Workers to
represent you.
WE WILL NOT assign you to jobs inferior to
your classification as punishment for your sup-
port of the Bakery Workers or any other labor
organization.
WE WILL NOT publish or enforce any rule
which forbids you from engaging in union ac-
tivity on plant property, provided it is on your
own time.
WE WILL, upon request, bargain collectively
with Bakery and Confectionery Workers' Inter-
national Union of America, as the exclusive
representative of all the employees in the bar-
gaining unit described below concerning rates
of pay, wages, hours of employment, and other
conditions of employment, and if an un-
derstanding is reached, embody it in a signed
agreement. The bargaining unit is:
All production and maintenance em-
ployees, truckdrivers and shipping and
receiving employees at the Employer's Al-
toona, Pennsylvania plant ; excluding all
other employees, office clerical em-
ployees, line supervisors , and all other su-
pervisors as defined by the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
51 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
5' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional , Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
BOYER BROS., INC.
exercise of your rights to self-organization or
to form , join , or assist any labor organization,
or to bargain collectively with us concerning
terms of conditions of employment through the Dated By
representative you select , or to refrain from
any of these activities if you so choose , except
as these rights may be affected by a contract
validly made under the National Labor Rela-
tions Act, whereby membership in a labor or-
ganization is a condition of employment after
the 30th day following the date of the contract
or the beginning of a person 's employment,
whichever is later.
You and all our employees are free to become or
remain or to refrain from becoming members of, or
withdrawing membership in, any labor organiza-
tion.
BOYER BROS., INC.
(Employer)
1127
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh , Pennsylvania 15222,
Telephone 644-2977.