Boyer Bros., Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 5, 1968170 N.L.R.B. 1108 (N.L.R.B. 1968) Copy Citation 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. Copy with citationCopy as parenthetical citation