Brown Specialty Co.

National Labor Relations Board - Board Decisions

Feb 14, 1969

174 N.L.R.B. 519 (N.L.R.B. 1969)

BROWN SPECIALTY CO.
Brown Specialty Company and Local 221 of the
Office and Professional Employees International
Union , AFL-CIO. Case 38-CA-449
February 14, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 30, 1968, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint and recommended
that the complaint be dismissed with respect to
those allegations. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief. The General Counsel filed limited
exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the additions and
modifications set forth below.
1. The Trial Examiner found that employee Jo
Thomas was not an agent or supervisor of
Respondent and that her statements to employees
Rebecca Vannoy and Michele Swanson cannot bind
Respondent. We do not agree.
The record shows that on or about February 21,
1968, Company President Golofsky spoke to
employee Michele Swanson about the Union. In the
course of that conversation Golofsky mentioned that
"all the girls had signed," and requested Swanson to
ask them to "back out of it." He requested her to
write a letter to Local 221 "asking for our cards
back." When Swanson refused to write such a letter,
Golofsky asked her if she would sign such a letter.
Swanson replied that she "would go along with the
majority of the girls." Golofsky then said, he would
ask Jo Thomas, to write such a letter. In another
conversation, Golofsky told employee Rossie
Sargeant that his attorneys had advised him that if
the Company "drew up a letter" stating that the
employees did not want a union, and all the
employees signed it, that would end it all and "these
519
cards wouldn't be any good;" that he "was having
Jo Thomas draw it up;" "that employees Beverly
Cossart and Michele Swanson were going to sign it,
and that he would like Rossie (Sargeant) to sign it."
Later that day, Jo Thomas told Michele Swanson
that she had prepared a letter at Mr. Golofsky's
request, that it could be rough for employees if they
did not go along with her, and that she wanted
Michele to sign it. Shortly thereafter Michele
Swanson signed the letter. The record also shows
that on or about February 23, Thomas solicited
employee Rebecca Vannoy's signature to the letter.
In doing so, Thomas told Vannoy, that Mitchell
Rudman, Respondents' secretary-treasurer told her,
that President Golofsky talked to everyone "and go
ahead and have the rest. . .sign that".
The foregoing clearly shows that Respondent
solicited two of its employees in an attempt to have
them draw up a letter asking for the cards back and
requested them to solicit employee signatures to
such letter. Although unsuccessful in having
Swanson perform this request, Respondent was
successful in gaining Thomas's cooperation in
performing the task. On the basis of the above facts,
we find that the Respondent constituted Jo Thomas
its agent for this purpose and is legally responsible
for her statements to the employees relating to the
union matter and for the consequences of such
statements.' We therefore find Thomas' statements
to employees Swanson and Vannoy set forth in the
Trial Examiner's Decision to be coercive and in
violation of Section 8(a)(1) of the Act.
2. We find merit in the General Counsel's
exception to the Trial Examiner's failure to find that
Respondent was responsible for statements made by
Susan Nyman's father attempting to induce her to
withdraw from Union. The record shows that
President Golofsky, relying on his long-standing
friendship with Nyman, asked him to induce his
daughter's withdrawal from the Union. Nyman did
so, and the next day Susan withdrew from the
Union. On that next day, Golofsky asked Susan to
sign the withdrawal letter to be circulated by other
employees and asked her if her father had spoken to
her, explaining that he had asked her father to
intercede on his behalf because he felt her father
could talk to her better than he could. On these
facts, it is apparent that Golofsky designated
Nyman as Respondent's agent for the purpose of
obtaining Susan's withdrawal from the Union 2 and
advised Susan that her father had been speaking to
her on Respondent's behalf. Respondent is thus
responsible for Nyman's remarks. We find that
Golofsky's utilization of Nyman as its agent to
induce Susan's withdrawal from the Union
interfered with her exercise of Section 7 rights and
that Nyman's remarks to Susan constituted further
'Goodman Lumber Company , 166 NLRB No. 48
'Cramco, Inc, 162 NLRB No. 142
174 NLRB No. 77
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interference and restraint with the exercise of such
rights in violation of Section 8(a)(1) of the Act.
3. We find merit in the General Counsel's
exception to the Trial Examiner's finding that
Golofsky's statement to employees Fell and
Witherbee that "If the Union came in he would
dock them if they were absent or came in late,
whereas they were enjoying such privileges now"
was not coercive. This statement was made to the
employees during a discussion that included
unlawful interrogation by Golofsky concerning their
Union allegiance. It occurred in Golofsky's private
office. It constituted a threat to take away benefits
now enjoyed by the employees, hinged simply on the
Union's coming into the plant. Contrary to the Trial
Examiner, the threatened change in treatment was
not tied to the provisions of a prospective Union
contract. We find that by these statements
Respondent violated Section 8(a)(1) of the Act.
The Trial Examiner found that supervisor Ted
Olson's interrogation of Linda Jackson, on or about
February 19, as to whether she had signed a union
card, to be coercive. He also found Olson's
statement to Jackson that he knew that employee Jo
Thomas had started the union business and knew
where the meeting had been held, to be coercive as
it gave the impression of surveillance of Thomas and
of a union meeting. He further found that Olson's
statement that if the Union got in he would be
tougher to get along with to be coercive as it
denotes that the advent of the Union will bring
about more arduous working conditions; i,e., it
contains a threat of reprisals. We agree with these
findings. We additionally find coercive (1) Olson's
statements subsequent to Jackson's affirmative reply
that she had signed a union card, that; "within the
next few days employees would probably be called
to President Golofsky's office to be asked why they
had been signing cards, and that it would not be a
good idea to answer it was because everyone else
had signed;" (2) his statement that, "the employees
were underhanded and backward [and] were forcing
Mr. Golofsky to take drastic measures," and, that,
"if they had complaints they should go to Golfsky
"instead of taking this manner," and (3) his
statement that, "Mr. Golfsky could eliminate all of
us" and still remain in business, to be coercive.
4. In agreement with the Trial Examiner, we find,
on consideration of all the circumstances of this
case, that Respondent's refusal to recognize the
Union as the exclusive representative of its office
clerical employees to be a violation of Section
8(a)(5) of the Act. We do so not only for the
reasons given by the Trial Examiner but also for the
additonal reason set forth below.
The Union's efforts to organize Respondent's
employees began in February 1967, and came to
Respondent's attention on February 13, when it
received the Union's letter demanding recognition as
the exclusive bargaining agent for the above
employees. The record shows that on February 13,
14 persons were employed in the appropriate unit.
The Trial Examiner found that on February 13, the
Union had in its possession 10 authorization cards
from employees in the unit. He further found that 9
of said 10 cards are valid and that none of the 10
cards is tainted by coercion, fraud, or
misrepresentation; and, that said 9 cards constitute a
majority in a unit of 14. We agree that on February
13, the Union represented a majority of employees
in the unit.3
In finding that Respondent did not have a
good-faith doubt of the Union's majority status at
the time of receipt of the Union's demand on
Febrary 13, the Trial Examiner relied on
Respondent's failure to respond to the Union's
request for recognition or to express a doubt as to
its majority status; and - upon Respondent's
subsequent commission of various unfair labor
practices. We agree. There can be no reasonable
doubt that Respondent sponsored the circulation of
the letter providing for the employees' withdrawal of
their membership applications because it believed
the Union did, in fact, have its claimed majority and
it wished to dissipate that majority.
Accordingly, we find that Respondent violated
Section 8(a)(5) of the Act by refusing to recognize
or bargain with the Union on and since February
13, 1968.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that respondent, Brown Specialty Company,
Galesburg, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
'Though the General Counsel has excepted to the Trial Examiner's
refusal to count Thomas ' card, and the Respondent has excepted to his
counting of Cossart's card, we are not disposed to reverse of the Trial
Examiner' s finding . In any event , it is apparent that neither card is crucial
for the Union 's majority
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner- This is an
unfair labor practice case brought pursuant to Section
10(b) of the National Labor Relations Act, herein called
the Act. 29 U S.C. 160(b). It was initiated by a charge
filed against Respondent by Local 221 on February 26,
1968, and an amended charge on March 22, 1968. A
complaint based on said charges was issued on March 28,
1968, by the General Counsel of the National Labor
Relations Board through the Officer-In-Charge of
Subregion 38 (Peoria, Illinois), naming Brown Specialty
Company as the Respondent.
Said complaint, as amended at the hearing, in
substance alleges that Respondent has engaged in conduct
violating Section 8(a)(1) and (5), and that such conduct
BROWN SPECIALTY CO. 521
affects commerce within the meaning of Section 2(6) and
(7), of the National Labor Relations Act, herein called the
Act. Respondent has answered admitting some facts but
denying that it committed any unfair labor practices.
Pursuant to due notice, this cause came on to be heard,
and was tried before me, at Galesburg, Illinois, on May
27 and 28, 1968. All parties were represented at and
participated in the hearing, and had full opportunity to
adduce evidence, examine and cross-examine witnesses,
offer oral argument, and submit briefs. At the hearing the
complaint was amended by deleting the name of Michele
Swanson as an employee illegally discharged. Respondent
argued orally at the close of the case. Briefs have been
received from the General Counsel and the Respondent.
The Index to the Transcript at page 2 is hereby
corrected by inserting between the words "Rossie
Sargeant" and "Marian Witherbee" the words "Susan
Nyman . . . Direct 91 . . . Cross 95." It is also corrected
at page 111 to spell Riner's first name as Larry and not
Lary.
This case presents the issues of whether Respondent (1)
Coercively interrogated its employees regarding their
union activities; (2) Threatened employees with discharge
or reprisals if they engaged in union activities; (3)
Unlawfully created the impression among employees that
it was keeping their union activities under surveillance; (4)
Urged employees to disavow Local 221; and (5) Refused
to recognize and bargain collectively with Local 221 as the
exclusive representative of employees in an appropriate
unit when Local 221 had a majority.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. AS TO JURISDICTION
Brown Specialty Company, herein called Respondent or
the Company, an Illinois corporation, is engaged at
Galesburg, , Illinois, in selling at wholesale groceries and
sundry products. During the 12 months preceding the
issuance of the complaint herein, it shipped goods and
materials valued in excess of $50,000 to, and received
goods and materials valued in excess of $50,000 directly
from, points outside the State of Illinois. I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction
over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 221 of the Office and Professional Employees
International Union, AFL-CIO, herein called Local 221
or the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III. GENERAL COUNSEL'S EVIDENCE REGARDING THE
UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Recognize and Bargain
with Local 221
President Walter L. Bruner of Local 221 held a meeting
of the Company's employees on February 3, 1968, at the
home of one of them, Michele Swanson. Five employees
attended. In speaking to them he explained that, if they
signed an application card, they were authorizing the
Union to act as their exclusive collective-bargaining
representative and if a majority signed "in the clerical
unit," the Union would write to the Company demanding
recognition. Proceeding with his talk he added that if
Respondent denied recognition the Union would petition
for an election on the basis of the cards "as proof of
interest." All five employees present signed cards and
handed them to Michele Swanson. He also gave five
additional blank cards to employee Michele Swanson, who
attended the meeting.
By letter dated February 12, 1968,' Walter L. Bruner,
president of the Union, wrote John Golofsky,
Respondent's president. (General Counsel's Exhibit 2(a)).
Among other things, Bruner asserted that the Union had
signed up "more than a majority of the office clerical
employees" of the Company, requested recognition of
Local 221 as the exclusive bargaining agent of a unit
comprising office clerical employees, but excluding
executive, professional, confidential employees, guards,
supervisors, and all other employees; and requested a date
for a meeting to negotiate a contract. This letter was
received on February 13. At that time said unit consisted
of 14 employees. Their names are enumerated in Joint
Exhibit 1.
At the time said letter was mailed 10 employees m the
unit had signed authorization cards for Local 221. See
General Counsel's Exhibits 3(a) through 3(1). Employee
Michele Swanson had obtained signatures, including her
own, to these 10 cards and turned them over on February
11 to President Bruner of the Union
About Thursday or Friday of the week of February 11
employee Jo Thomas asked Michele Swanson whether
she, Jo, could get her card back. That evening Michele
called Union President Bruner. But he had already mailed
all 10 cards, including Jo's, to the NLRB office in Peoria,
Illmois. Thereafter Michele told Jo that Jo's card had
already been "sent out" and therefore could not be
retrieved.
B. Interference, Restraint , and Coercion
About February 21, Company President Golofsky
spoke to employee Michele Swanson. After telling her
that he did not like the Union and could not understand
why the girls wanted one, he said that he was going to
fight the Union. Then he asked Michele why the girls
wanted a union. She replied that they wanted "more
better benefits" which she enumerated. Then Golfsky
stated that he could not understand why Michele and
employee Linda Jackson had signed cards since they had
received a good raise in the short time they had worked
there.
Continuing, Golofsky mentioned that "all the girls had
signed," and requested Michele to ask them to "back out
of it." He also requested her to write a letter to Local 221
"asking for our cards back." When Michele refused to
write such letter, Golofsky asked her if she would sign
such a letter. Michele replied she "would go along with
the majority of the girls." Then he said he would ask one
of the other girls, Jo Thomas, to write such a letter.
Finally, he asked Michele why the girls did not quit and
go elsewhere if they did not like it there.
Later that day employee Jo Thomas told Michele that
Jo had prepared a letter at Mr Golofsky's request, that it
could be rough for employees if they did not go along
'All dates mentioned hereafter refer to 1968 except when otherwise
specified '
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with her, and that she wanted Michele to sign it. Michele
said she would and did so shortly thereafter. This letter,
dated February 21, is signed by the 10 employees signing
union authorization cards, is addressed to the National
Labor Relations Board , and provides that
We, the employees of The Brown Specialty
Company, wish to withdraw our application for
membership in the Office and Professional Employees
Union, and for an election. (General Counsel's
Exhibit 4.)
However, the words "and for an election" were not typed
on General Counsel's Exhibit 4 at the time Michele signed
it.
About February 19, Ted Olson, who was in charge of
the IBM department, spoke to employee Linda Jackson.
First he asked her if she had signed a union card. When
she replied that she had he asked her whether she knew
anything of a meeting "held to sign the cards." Then he
said that within the next few days employees would
probably be called to President Golofsky's office to be
asked why they had been signing cards, and that it would
not be a good idea to answer it was because everyone else
had signed.
Continuing, he said that the employees were
"underhanded and backward [and] were forcing Mr.
Golofsky to take drastic measures," and that if they had
complaints they should to to Golofsky "instead of taking
this manner." Finally he stated that "Mr. Golofsky could
eliminate all of us" and still remain in business.
A few minutes after this Olson again spoke to Jackson.
This time he told her that he knew that employee Jo
Thomas had started the "union business" and "where the
meeting had been held." Then he "explained" that "if the
Union went through" Jackson stood to lose a lot because
the work would become much harder, there would be
more work, breaks would become shorter, and he himself
would become tougher to get along with.
Two or three days later Jackson overheard Olson tell
employee Riner that "if the Union went through" things
would "definitely change for the worse," that three times
more work would be imposed on employees, and that
Riner was jeopardizing his job by signing a union card.
At the request of employee Jo Thomas, Jackson, on
Febrary 22, signed the February 21 petition to revoke her
union card. See General Counsel's Exhibit 4. However,
when she signed General Counsel's Exhibit 4 the words
"and for an election" were not on the petition.
About February 19 Olson talked to employee Rossie
Sargeant about the Union. When he asked her if she knew
anything "about the union activities ," and she replied that
she did, he then inquired why she felt that she wanted a
union . She answered that it would increase her wages.
Thereupon Olson commented that if the Union got in
things would be different.
Approximately 2 days later President Golofsky asked
Rossie Sargeant if she had signed a union card. As her
reply was in the affirmative, he then asked her why she
wanted a union. Her response was that her wages were
not enough for the type of work which she performed.
Then he observed that he might have done something
about this but could not at the time "because of all this
union movement" and as it might interfere with the
election which the Union sought. Nevertheless, Golofsky
promised nothing. However, he did express opposition to
the Union and added that he would do "anything to keep
from getting it."
Continuing, Golofsky told Sargeant that his attorneys
had advised him that if the Company "drew up a letter"
stating that the employees did not want a union, and all
employees signed it , that "would end it all" and "these
cards wouldn't be any good"; that he "was having
[employee] Jo Thomas draw it up"; that employees
Beverly Cossart and Michele Swanson were going to sign
it; and that he would like Rossie to sign it.
The next day, February 22, such a letter or petition was
circulated among the employees by employee Jo Thomas
Presumably Jo Thomas prepared it. Rossie signed it
voluntarily See General Counsel's Exhibit 4. However,
the words "and for an election" were added to it
subsequent to her subscribing General Counsel's Exhibit 4.
During the evening of about February 20 employee
Susan Nyman overheard President Golofsky telephoning
her father. She was able to do this by listening in on a
telephone extension in an upstairs room. Golofsky said
that since Susan was a young girl he thought that Mr.
Nyman could talk to her about getting her union card
back because Golofsky did not want the Union. Golofsky
added that he knew who started the Union at his
establishment, and that it was some of the older, rather
than the younger, girls Mr. Nyman did talk to Susan
soon thereafter.
The next day employee Jo Thomas presented a petition
to Susan and requested her to sign it. Susan did so. See
General Counsel's Exhibit 4. Ten or fiteen minutes later
President Golofsky told Susan that he did not want the
Union and requested her to sign a letter, to be drawn up
by "one of the girls ... asking for our union cards back."
When Susan replied that she had already done so,
Golofsky responded that he was unaware that "it had
gotten around that fast."
Another employee with whom President Golofsky
talked about the Union is Virginia Fell. About February
21, in the presence of employee Marian Witherbee,
Virginia asked him if he had received a letter from the
Union. He responded by asking if Virginia had signed a
card and stated that he could see the cards of Virginia and
Marian if he so desired. The two girls complained of the
inadequacy of a nickel raise. Then he asked who had
started the union movement , insisting that it had to be a
"new girl" rather than "any of the older help" because
the "older help" would have come to him. He also stated
that, in case of an election , the girls would not win
anyway because he would have his son-in-law and Charles
Allen vote "against us." Then he mentioned that if the
Union came in it would "control the office," and he also
would dock them for being absent or late although he now
paid them under such circumstances.
Marian also signed the petition to withdraw her union
card (General Counsel's Exhibit 4) at the request of
employee Jo Thomas on February 21. She observed Jo
Thomas carry the petition into President Golofsky's office
on February 22.
Some time in the middle of February Ted Olson asked
employee Martha Dahl of the IBM department whether
Dahl "would be for the Union." She replied that she
probably would in order to obtain better wages. Mrs
Dahl also signed General Counsel's Exhibit 4 about
February 21. She did so voluntarily.
About mid-February Ted Olson asked employee Larry
Riner whether Larry knew anything about a union in the
office. Thereafter Olson on several other occasions talked
about the Union with Riner.
Approximately in late February President Golofsky
asked Rmer if Riner knew anything about the Union.
BROWN SPECIALTY CO. 523
When Riner replied affirmatively, Golofsky asked Riner
what he thought of it "in general." Riner answered that
he did not believe it ' would work "in that office."
Golofsky then observed that he was not in favor of the
Union, and asked if Riner had received a union card.
Upon River's replying that he did, Golofsky asked him if
he had signed it. Riner answered that he did not expect to
sign it.
Employee Rebecca Vannoy, who had previously signed
a union card (General Counsel's Exhibit 3(d)) on about
February 3, signed a petition to withdraw it (General
Counsel's Exhibit 4) upon being solicited by employee Jo
Thomas. At this point Thomas told Vanr,oy that Mitchell
Rudman, Respondent's secretary-treasurer, told Thomas
that President Golofsky talked to everyone "and go ahead
and have the rest . . . sign that." But since I find that
Thomas is not an agent or supervisor of Respondent her
statements to Vannoy cannot bind Respondent. Therefore
no violation of the Act is disclosed in this conversation.
A few days after February 21 Secretary-Treasurer
Mitchell Rudman told Vannoy that he opposed unions in
a smaller business whereas they might be needed in a
larger corporation. Mentioning that General Counsel's
Exhibit 4 was "too late" to "get the cards back,"
Rudman said that "in the end I'm sure you'll see it our
way." I find Rudman is a supervisor under Section 2(11)
of the Act. But I find that his statement is not coercive; at
most it expresses antiunion hostility.
C. The Status of Ted Olson
According to President Golofsky, Ted Olson "is an
understudy in [the] IBM department, being trained for the
future as a supervisor." At the time of the hearing he had
so served for about 2 years. Golofsky further testified that
Olson "arranges" the billing and tabulating work and
"allots" it to the employees. It is`Olson's responsibility to
see that the work is done.
When employee Linda Jackson was hired in January
1968, she was interviewed in President Golofsky's office
by Golofsky, Ted Olson, and'Office Manager Bob Morris.
She reported for work to Olson in the IBM department,
who introduced her to some employees and then instructed
her how to perform her duties. Thereafter he assigned her
to various jobs and taught her how to perform those with
which she was unfamiliar. However, other "people"
sometimes also taught her how to run some machines
after Olson had instructed her. In addition Olson
corrected her when she performed work incorrectly; so did
other employees. Once he discussed her "attitude"
towards her job with her, criticizing her performance. In
this conversation they also discussed her quitting date, as
she had given him notice that she was leaving.
According to employee Rossie Sergeant of the
Company's IBM department, Olson tells her and other
employees in the department what to do, and has fired
employee Sandy Berm. He also showed her what to do on
those jobs unfamiliar to her.
When office employee Martha Dahl was hired by the
Company in about 1966 to work in the IBM department,
Office Manager Bob Morris introduced her to Marlene
Kessler as Martha's "boss" in that department. About 6
months later Kessler quit and was replaced by Ted Olson.
Thereafter Olson was "over" the IBM employees and on
two or.three occasions called them together to tell them
that they were lagging in their work. In addition, she
requested Olson for time off several times and he granted
it. When Dahl quit she notified Olson of her intention to
do so about 3 or 4 months in advance. Shortly after
Martha Dahl quit Olson called on Dahl's husband at the
husband's gas station and asked Mr. Dahl to request
Martha to return to work for a week as Respondent was
"in a pinch." Martha did so.
Employee Larry Riner was hired by Respondent in
June 1967. At that time President Golofsky introduced
Riner to Ted Olson, mentioning that Olson "takes care of
our IBM department," and that Olson would "explain the
operation" to Riner.
IV. RESPONDENT'S EVIDENCE REGARDING THE UNFAIR
LABOR PRACTICES
One of those employees signing union cards is Beverly
Cossart, who subscribed on February 3. See General
Counsel's Exhibit 3(g). She did so upon being solicited by
employee Michele Swanson and the latter's husband.
Beverly "knew" she should not have signed it. Beverly
further testified that Michele told her and Beverly also
"knew" that, by signing, "it would help to get a union
started and if I wanted I could get the card back and
there would be an election and [I could] change my mind
at the election [and] vote no." Michele also said "we
would make a lot more money." Later, she decided to get
her card back and on February 21 signed General
Counsel's Exhibit 4 for this purpose; she also wrote to
Union President Bruner on February 20 to recall her card
but he never answered her letter.
On cross-examination Beverly asserted that she signed
the card "to help them get [the Union] started." She also
claimed on cross that "it even said on the card there
would be an election," then she added, "or on something I
read." But she stated that whatever she read about an
election did not precede her signing the card on February
3 or before February 20 when she attempted to revoke her
card. In her affidavit given to the Board (General
Counsel's Exhibit 5, read into record at p. 170-A of
Transcript), Beverly gave an account of Michele's
statement soliciting Beverly to sign a card. Nowhere in
said affidavit is an election mentioned; when examined on
cross about this, she replied, "I thought there was going
to be an election."
Employee Mary Bragg Thomas, also known as Jo
Thomas, was solicted on February 9 to sign a union card
by employee Michele Swanson and the latter's husband.
Jo did sign one on the same day. See General Counsel's
Exhibit 3(j). Prior to signing, Jo told Michele that Jo did
not believe in unions and wanted no part of a union.
Nevertheless, Michele assured her "all we need is your
signature [to get a union in the office]. You will not be
involved in any way." Jo replied, "If that's what you girls
want ... if it would help ... to have something [Michele]
wanted . . . you can use my name. But I want no part of
it ... leave me out ... I would not be involved."
The next working day, February 12, Jo asked Michele
to return the card. Although she tried to reach Michele
the evening of February 9, Michele had already
surrendered it to someone and all cards "had been sent
in." Notwithstanding that Michele offered to obtain it for
Jo, she never did. Jo then wrote on February 20 to Union
President Bruner to return her card to her. See
Respondent's Exhibit 1. Receiving no response from
Bruner, Jo then solicited employees to sign a withdrawal
petition. See General Counsel's Exhibit 4. It was signed
by all 10 employees who had previously executed union
cards in evidence as General Counsel Exhibit 3(a)
through 3(j).
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's Exhibit 4 was prepared by Jo
voluntarily , and no other person suggested it or instructed
her to prepare it. However , she did ask Respondent's
president, John Golofsky, "if it was permissible." He
replied that it was Jo's "privilege " and that Jo could do as
she liked. While she added the words "and for an
election" at the end of General Counsel's Exhibit 4 after it
was originally typed by Jo, these words appeared thereon
before any one signed said document . Then she mailed it
to the National Labor Relations Board "to get my card
back." In pertinent part the Board replied, by letter dated
February 26, that it lacked authority to act upon an
employee's request for the return or revocation of an
authorization card. See Respondent's Exhibit 2. At no
time did Jo take General Counsel's Exhibit 4 to President
Golofsky's office, and she never told Michele Swanson
that he told Jo to write a letter or prepare one which
revoked union cards signed by the employees.
On February 19 an RC petition for an election
accompanied by 10 union cards (General Counsel's
Exhibits 3(a) through 3(j)), was filed by the Union with
the National Labor Relations Board Subregional office in
Peoria, Illinois. Official NLRB notices of an impending
election were then posted by Respondent on its bulletin
boards. Jo Thomas obtained the address of the NLRB
from these notices and used this address in mailing
General Counsel ' s Exhibit 4. Said petition was withdrawn
on March 22, so that no election was ever conducted
pursuant to said RC petition.
Ted Olson was hired in February 1966, as a trainee in
the IBM department to become office manager eventually.
The present office manager is Robert Morris. Ted starts
work at 6 a.m. and quits at 3 p.m. He does not punch a
timeclock, whereas other office clerical employees do
Other office employees work from 8 a.m. to 5 p.m. He
has never hired or fired anyone , although he fired Sandra
Berm pursuant to instructions from Bob Morris and
President Golofsky. He also operates IBM machines
during working hours.
Olson replaced Marlene Kessler in the IBM department
when she left about a month after he was hired and
thereafter he performed her duties. She ran machines, told
others "what to do," pointed out and corrected mistakes
which employees made, and instructed employees how to
operate machines in the department . Olson has since
performed these functions in addition to others
enumerated herein. Olson also "supposes" he could
recommend to President Golofsky that a person be hired.
Olson is a salaried employee, receives no pay for
overtime , has no "regular scheduled number of hours a
week ," and is paid more than any employee in the IBM
department . He also makes more than any employee in
the office clerical unit who works regular hours, but three
in the unit make more than he when they work overtime.
Besides operating machines , Olson also performs other
functions . In the absence of Office Manager Morris,
Olson calls a repairman when a machine breaks down.
Also he collects orders taken by the Company's salesmen
and transmits them to the IBM department employees to
be processed there. He also checks accounts "for the
minimums" and "writes up receivables " In addition, all
merchandise received in Respondent ' s warehouse is posted
by IBM department employees at Olson ' s direction after
it is recorded on appropriate cards by employee Riner.
It is true that Olson called a meeting of employees at
which he criticized their work . But he did so pursuant to
instructions from Office Manager Bob Morris, after Olson
had reported to Morris that "we were having trouble."
Linda Jackson reported to Olson when she was hired
simply because he was the only one in the office at the
time, i.e., at 6 a.m. But Olson was "told to introduce
[Linda] to everybody . . . familiarize her with everything
in the department and assign her to someone [who] could
show her the work to do." And he authorized Linda to
take off for 2 weeks only after discussing the matter with
President Golofsky and Office Manager Morris.
On one occasion Olson granted time off to employee
Martha Dahl, but only after he was authorized to do so
by Bob Morris, the office manager. Olson also discussed
Martha's notice to quit with Morris and conveyed to
Martha what Morris told him. And Olson also asked
Martha's husband to ask her to return to work for a
couple of weeks after she quit because "we're in a bind, '
but only after he cleared this with Bob Morris, who, in
turn, cleared it with President Golofsky.
Olson once inquired of Linda Jackson "if she heard
anything about a union." When she replied that she had,
he asked her to what extent and "why did you go behind
John [Golofsky's] back?" But he denies that he told her
that President Golofsky could eliminate all of them or
could take drastic measures
Although Olson did discuss unions with employee Larry
Riner, Olson made no derogatory remarks concerning
them.
Respondent's president is John Golofsky. He was
unaware of a union movement among the office
employees until he received a registered letter about 3 or 4
p.m on February 13. Since he was due to leave town soon
on a business trip, he did nothing about the letter until the
following Monday, February 19, when he consulted his
counsel , Burrell Barash . The letter stunned Golofsky and
he also doubted that the Union had a majority.
Counsel Barash advised Golofsky that the latter could
talk to the employees, saying anything he wished, but that
he could not threaten or coerce them. Later that day
Golofsky spoke to employee Mary (Marian?) Witherbee
and Virginia Fell. After asking them if they were
underpaid or mistreated by the Company, he inquired if
they signed a union card, but Marian did not answer and
Virginia made a remark which he has forgotten. That
ended the conversation. On that or the next day he also
asked employees Josephine (Jo?) and Beverly Cossart the
same questions. Each one answered "it was a mistake."
Additionally he asked these questions of employee
Michele Swanson and "maybe" other employees
Golofsky denies that he told Michele Swanson that he
would ask Jo Thomas, an employee, to write a letter of
withdrawal, and asserts that he never asked any employee
to prepare such a letter. He did call Susan Nyman's
father to tell him that Susan, a young girl dust out of high
school, was active in the union movement, that Golofsky
was in no position to advise her, and that Mr. Nyman, as
Susan's father, "may wish to counsel her." Further,
Golofsky denies he discussed the Union with Susan
Nyman, but admits that he did ask some employees "who
started all of this?"
In late February or early March, Mitchell Rudman,
Respondent's secretary-treasurer, asked employee Leonard
McMillion if McMillion had signed a union card. He
replied that he had' not.
At no time after February 12 did the Union offer to
produce any proof of majority in the unit. And President
Golofsky never saw the withdrawal petition (General
Counsel's Exhibit 4) until it was shown to him when he
was cross-examined at the hearing. However, he
"probably" saw it before the hearing. Nevertheless, he did
1
BROWN SPECIALTY CO. 525
"hear about it" when employee Jo Thomas asked for his
permission to prepare it and he replied, "that's up to
you.,,
V. CONCLUDING FINDINGS AND DISCUSSION
A. As to the Supervisory Capacity of Ted Olson
Section 2(11) of the Act defines a supervisor for the
purposes of the Act. Whether a person in a specific case
exercises or is vested with supervisory authority
necessarily depends on the facts peculiar to that case, so
that prior Board decisions generally offer no controlling
precedent. Each case must be decided on its own facts.
It is my opinion, and I find, that Olson is a supervisor
within the meaning of Section 2(II) of the Act. This
ultimate finding or conclusion is based on the entire
record and the following subsidiary findings, which I find
as facts:
1. Olson's duties require him to work closely with top
management officials. He is also allied with management
as a trainee. Thus he was present and interviewed
applicant for work Linda Jackson. Further, he has no
regular hours, he is the only one in the IBM department
who is paid a salary, he receives nothing for overtime, and
his pay is higher than that of any office clerical who does
not work overtime. While these facts alone do not
necessarily elevate Olson to the stature of a supervisor,
they constitute relevant indicia of his rank above
employees, some of whom have been employed much
longer than he. International Metal Specialties, Inc., 172
NLRB No. 39.
2. New hires in the IBM department report directly to
him. For example, Linda Jackson reported directly to him
for work, rather than to Office Manager Bob Morris.
Olson also called a repairman during the absence of
Office Manager Bob Morris I attach no significance to
this aspect of his functions, as I regard it as routine or
perfunctory, and not calling for the use of independent
judgment.
3. Olson introduces new employees to the other
employees (as in the case of Linda Jackson), assigns
employees to their daily tasks, and teaches employees how
to perform their duties. In assigning employees Olson
exercises his own judgment, as President Golofsky's
testimony reveals. I do not credit Olson's testimony to the
extent that it indicates his assignments of work are routine
or clerical in nature.
4. Olson rectifies employees who perform their work
incorrectly, and criticizes those whose work is
unsatisfactory. In addition, he also occasionally called
meetings of employees in the IBM department to inform
employees as a group that their performances were below
par.
5. He also was the person to whom notices to quit were
given, and discharged at least one employee, viz., Sandy
Berm. The fact that Olson cleared this discharge with his
supervisors, which I find, does not detract from the fact,
which I find, that he effectively recommended this action.
6. He granted time off whenever employees requested
it. And employees intending to quit or out ill notified him
thereof, rather than to Office Manager Bob Morris.
7. In at least one instance, i.e., in the case of Martha
Dahl, he effectively recommended that an employee who
had quit be temporarily rehired because Respondent at the
time was short of help. It is true that any employee is at
liberty to suggest that a friend be hired without thereby
becoming a supervisor. But when the suggestion is coupled
with an appraisal of the work requirements of a
department, the exercise of independent judgment becomes
operative. Such judgment involves more than routine or
clerical functions, and I so find.
8. Olson replaced Marlene Kessler as "boss" of the
IBM department. That Marlene was "boss" is derived
from Martha Dahl's testimony, which I credit, that when
Office Manager Morris introduced Martha to Marlene he
referred to Marlene as Martha's "boss" in the IBM
department. Thus, I find that Olson succeeded Kessler as
the "boss" of the IBM department. El Cananazo
Supermarket, Inc., 171 NLRB No. 15.
9. In exercising the foregoing authority I find that
Olson did so in the interest of his employer, that his duties
required him to use independent judgment, and that such
work was not of a routine or clerical nature. Hence it is of
no consequence that Olson also operated machines
occasionally, as I find that the great bulk or majority of
his time was devoted to acting in a supervisory capacity.
Hence his functions are essentially dissimilar to those of
floorladies whom the Board found not to be supervisors in
G. C. Murphy Company, 171 NLRB No. 45.
Evidence by Respondent and the General Counsel
relating to Olson's duties is in the main not in
controversy. However, on those minor points on which
differences may exist, I credit the General Counsel's
witnesses, including President Golofsky, and do not credit
Olson's testimony to the extent that it collides with that of
the witnesses for the General Counsel.
B. As to the Refusal to Recognize and Bargain with
the Union ,
When a labor organization requests an employer to
recognize and bargain collectively with it as the exclusive
representative of his employees, he is under a statutory
onus to honor said request if, but only if, all three of the
following conditions have been fulfilled:
(a) Said request relates to employees in an
appropriate unit,
(b) Said labor organization represents an uncoerced
majority of the employees in the appropriate unit; and
(c) The employer does not entertain a good-faith
doubt of such majority.
The burden of establishing that all three conditions have
been met rests upon the General Counsel of the National
Labor Relations Board.
1. The appropriate unit
Patently the Union requested that the Company
recognize and bargain collectively with it when
Respondent admittedly received on February 13 the
Union's letter of February 12. See General Counsel's
Exhibit 2(a). I so find. I further find, since Respondent
does not challenge the unit described in said letter and
reiterated in the complaint (see Respondent's answer
admitting the appropriateness of said unit), that a unit
appropriate for the purposes of collective bargaining under
Sections 9 and 8(a)(5) of the Act consists of
All office clerical employees located at the
Respondent's Galesburg, Illinois, plant, but excluding
executive, professional, confidential employees, guards,
supervisors as defined in the Act, all other represented
employees, and all other employees.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Whether the Union had an uncoerced majority
No dispute exists that on February 13, 14 persons, as
enumerated in Joint Exhibit 1 and General Counsel's
Exhibit "Mar 7," were employed in the appropriate unit
on February 13. This latter exhibit is not numbered. The
February date, when the Union's request was received, is
the crucial date, and the rights of the parties are
determined as of then. McEwen Manufacturing Company,
172 NLRB No. 99. 1 find that on February 13 the Union
had in its possession 10 authorization cards (General
Counsel's 3(a) through 3(j) from employees in said unit. I
further find that 9 of said 10 cards are valid and that none
of the 10 cards is tainted by - coercion, fraud, or
misrepresentation. Levi Strauss & Co., 172 NLRB No.
57; McEwen Manufacturing Company, 172 NLRB No.
99. Finally, I find that said nine cards constitute a
majority in a unit of 14.
Certain cards attacked by Respondent as invalid
deserve brief comment. Beverly Cossart who signed a card
(see General Counsel's Exhibit 3(g)) at the request of
Michele Swanson testified, and I credit her, that Michele
told her that, by signing, "it would help get a union
started," that "there would be an election," and that "we
would make a lot more money." None of these remarks
infects Cossart's card, and I so find, since there was no
assertion that the card would be used only for an election,
and since the reference to more money is not a guarantee
of a wage raise but, rather, a statement of union goals
sought to be attained. Levi Strauss & Co., 172 NLRB
No. 57; Phil-Modes, Inc., 159 NLRB 944, 950, 951;
McEwen Manufacturing Company, 172 NLRB No. 99;
Koehler's Wholesale Restaurant Supply, 139 NLRB 945,
946; U-Tote M of Oklahoma, Inc., 172 NLRB No. 21. In
Conren, Inc., 156 NLRB 592, the Board held that a
guarantee of a wage increase amounts to
misrepresentation which will invalidate a card. Cossart
also testified that she knew she should not have signed the
card and that she "thought there was going to be an
election." But this does not contaminate it because mental
reservations do not destroy the effectiveness of a card.
McEwen Manufacturing Company, supra, at p.10; Levi
Strauss & Co., 172 NLRB No. 57.
Similarly, I find that the card of Mary Bragg Thomas
was valid when executed. She was not coerced into
signing, and no misrepresentations were made to her' to
induce her to sign. Phil-Modes, Inc., 159 NLRB 944, 955.
When the card is unequivocal on its face, as this card is,
and no improper statements were made to her about it,
the employee signing the card may not repudiate it at a
later date solely on the basis that subjectively she opposed
unions. McEwen Manufacturing Company, 172 NLRB
No. 99. Even if she signed to get the girls off her back,
such annoyance will not negative the overt act of having
signed a card designating a union as bargaining agent,
although she was told she did not have anything to lose by
signing the card. Joy Silk Mills v. N.L.R B., 185 F.2d
732, 743 (C.A.D.C.), cert. denied, 341 U.S. 914.
However, I find that Thomas on February 12 asked
that the card be returned to her. This repudiation of the
card of Thomas became effective because it was
communicated to President Bruner of the Union shortly
after February 12. Since Thomas succeeded in
withdrawing her designation of the Union her card may
not be counted in computing the Union's majority.
Phil-Modes, Inc., 159 NLRB 944, 950, and court cases
there cited.
Nor does the withdrawal petition dated February 21
(General Counsel's Exhibit 4) destroy the Union's
majority. Even if, contrary to the fact hereafter found,
said petition was not sponsored or initiated by
Respondent, so that it was inspired solely by employee
sentiment, it cannot affect the Union's majority on
February 13. This is because the Union's representative
status must be determined on February 13 (McEwen
Manufacturing Company, 172 NLRB 99); and, since the
Union enjoyed a majority on that date, it had a
reasonable time thereafter to conclude a contract as the
statutory exclusive representative of the employees.
.. an employer [must] bargain exclusively with the
particular union which represented a majority of the
employees at the time of the wrongful refusal to bargain
despite that union's subsequent failure to retain its
majority . . . a bargaining relationship once rightfully
established must be permitted to exist and function for a
reasonable period in which it can be given a fair chance to
succeed." Franks Bros. Company v. N.L.R.B., 321 U.S.
702, 705. I find that no reasonable time had elapsed
between February 13 and February 21, so that
Respondent could not lawfully rely upon the Union's loss
of majority on February 21 as a reason for refusing to
recognize and bargain collectively with it. See Ruffalo's
Trucking Service, Inc., 114 NLRB 1549; N.L R.B. v.
Shurtenda Steaks, Inc., 397 F.2d 939, (C.A 10).
However, as hereinafter set forth, I find that said
withdrawal petition does not affect the Union's majority
because it was sponsored by the employer. Phil-Modes,
Inc., 159 NLRB 944, 958. For this additional reason I
find that the withdrawal petition did not undermine the
Union's majority on and after February 13.
Finally, I find that President Bruner's remarks to
employees that cards would be used to support a petition
for an election if the Company refused to grant
recognition does not impeach the cards of those
subscribers who heard him. For he did not thereby
mislead employees into believing that the sole purpose of
the cards was to obtain an election N.L.R.B. v. H & H
Plastics, 389 F.2d 678, 682 (C.A. 6); N L.R.B. v.
Southbridge Sheet Metal Works, Inc, 380 F.2d 851,
855-856 (C.A. 1). See NL.R.B. v. Atco-Surgical
Supports, Inc, 394 F.2d 659 (C A 6); American Cable
Systems, Inc., 161 NLRB 332, 334.
3. Respondent's doubt of the Union's majority
Even when a labor organization in fact has obtained
signed cards from a majority of employees in an
appropriate unit an employer need not recognize or
bargain with it if he doubts or questions that majority in
good faith. Aaron Brothers Company of California, 158
NLRB 1077, 1078. Respondent contends that it
entertained a good-faith doubt of majority when it
received the Union's request for recognition on February
13. On this issue the burden of proof is upon the General
Counsel of the National Labor Relations Board to
establish that the employer in bad faith declined to
recognize and bargain with the Union. Aaron Brothers
Company of California, 158 NLRB 1077, 1079; John P.
Serpa, Inc., 155 NLRB 99, 100; N L.R B. v. Ben Duthler,
Inc., 395 F.2d 28, 68 LRRM 2324, 2326 (C.A. 6).
It is my opinion, and I find, that Respondent did not
have a good-faith doubt of majority. This finding is based
on the entire record and the following additional findings
of fact.
BROWN SPECIALTY CO. 527
(a) Respondent at no time informed the Union that
Respondent questioned the Union 's majority . Indeed
Respondent at no time since February 13 has responded
to the Union ' s request for recognition . Failure to
announce a doubt of majority is significant . Graham
Ford , Inc., 172 NLRB No. 50 (TXD).
(b) Respondent did nothing about the cards Thus it
"chose not to learn the facts, [and] it took the chance of
what they might be." James H. Matthews & Co. v.
N.L.R.B ., 354 F.2d 432 (C.A. 8). See Irving Air Chute v.
N.L.R.B., 350 F.2d 176, 182 (C.A 2). It is therefore
immaterial that the Union did not proffer the cards.
Respondent ' s argument that Respondent could ignore the
Union's request for recognition until such cards were
proffered is not well taken in my opinion . N.L.R.B. v.
The Sinclair Company, 397 F.2d 157, 68 LRRM 2720,
2723. (C.A. 1).
(c) Respondent committed unfair labor practices
contemporaneously with the Union's request for
recognition . This indicates a desire to dissipate the
Union's majority . Joy Silk Mills v. N.L . R.B., 185 F.2d
732, 741 (C.A.D C.), cert. denied 341 U.S . 914; American
Cable Systems, Inc, 161 NLRB 332, 335. In my opinion
N.L.R.B. v. Logan Packing Co., 386 F.2d 562, (C.A. 4),
and N. L.R.B. v. Ben Duthler, Inc., 395 F.2d 28 (C.A. 6)
are distinguishable.
(d) Respondent claims good faith as a defense.
However , good faith is not established by merely asserting
it. N.L. R.B v. Superior Sales, Inc., 366 F.2d 229, 237
(C.A. 8); Johnnie 's, Poultry Co., 146 NLRB 770, 773.
Hence, such assertion does not rebut the General
Counsel ' s prima facie case. N.L.R.B. v. The Sinclair
Company, supra , at 2723.
(e) President Golofsky testified he did not know
whether any employees had signed cards. This negatives
an affirmative basis for a good- faith doubt of majority.
N.L.R B . v. Superior Sales, Inc., 366 F.2d 229, 237,
(C. A. 8).
(f) President Golofsky interrogated at least five
employees , all of whom told him they had signed union
cards. Hence the only information Respondent possessed
indicated that employees had signed cards Absent
knowledge that any employees had not so signed, the
record does not support a reasonable foundation for
questioning the Union 's claim of majority.
(g) Finally, at no time did Respondent request an
election to ascertain whether the employees wanted a
union. While this is not conclusive it tends, along with
other facts found above on this branch of the case, to
demonstrate that Respondent lacked a basis for
challenging the Union's claim of majority.
Accordingly , I conclude and find that the General
Counsel has made out a prima facie case , and that
Respondent has not overcome it by the defenses it has
interposed . N.L.R.B . v. Gissel Packing Company, 398
F.2d 336 (C.A. 4), does not compel a contrary - result.
C. As to Interference, Restraint , and Coercion
About February 21, President Golofsky spoke to
employee Michele Swanson. I credit Swanson's account of
this conversation and do not accept Golofsky's version to
the extent it is inconsistent with Swanson's. I do so
because Golofsky admits systematically interrogating
employees after receiving the Union's February 13 request
for recognition and that one of the questions he asked
each girl, including Swanson, is whether she signed a
union card. Since Swanson also testified that he asked her
this question , which constitutes an unfair labor practice, I
find that it is likely that he also mentioned the other
subjects recited by Swanson . That conversation is set out
above in section III B, above, and need not be reiterated
here.
Accordingly, I find that the questions asked by
Golofsky amount to coercive interrogation . While I
recognize that an employer who is confronted with a
union ' s demand for recognition may inquire among his
employees to ascertain whether it has acquired a majority,
nevertheless he must assure them that no reprisals will be
taken because of their answers . Struksnes Construction
Co., Inc., 165 NLRB No. 102; Automotive Warehouse
Distributors , Inc., 171 NLRB No. 101. But Golofsky
admittedly failed to give such assurances . Hence, his
inquiries are coercive within the contemplation of Section
8(a)(1) of the Act. Heck's, Inc, 171 NLRB No. 112;
Johnnie's Poultry Co., 146 NLRB 770, 773, 775,
enforcement denied 344 F.2d 617 (C.A. 8); Blue Express,
Inc., 109 NLRB 591, 593-594.
In this conversation Golofsky alluded to the fact that
all the girls had signed cards. I find that this creates an
impression of surveillance of union activities, and is
therefore coercive.
In addition , he asked Michele to write a letter to recall
cards by,employees . This is coercive , as it interferes with
an employee ' s right freely to join or withdraw from a
union . Finally, Golofsky told Swanson that he would ask
employee Jo Thomas to prepare such a letter. Since Jo
did do so later (see General Counsel ' s Exhibit 4) and
circulated it, I find that said letter written by Jo Thomas
is not a valid withdrawal of cards because • it was
sponsored and circulated at Golofsky' s request , and that
such request is an unfair labor practice. Phil-Modes, Inc.,
159 NLRB 944, 958.
Later that day Joe Thomas made some remarks to
Michele Swanson. Since Thomas is not a supervisor or
agent of the Company, her statements may not be
attributed to it . Hence, I find no unfair labor practices in
Jo's utterances to Michele.
President Golofsky about February 21 asked employee
Rossie Sargeant if she had signed a union card . I Find this
interrogation is coercive since he gave no assurances that
reprisals would not be taken . In this conversation he also
mentioned that he was having Jo Thomas draw up a letter
for employees to sign that they did not want a union, that
employees Cossart and Swanson would sign it, and that he
wanted Rossie to sign it. Golofsky's denial thereof is not
credited. This statement is coercive, and I so find. The
reminder of Golofsky' s conversation with Sargeant
indicates antiunion animus on his part, but I find nothing
therein which is coercive because it contains no threats of
reprisals.
About February 20 Golofsky talked to Susan Nyman's
father requesting him to attempt to induce Susan to
withdraw from the Union . The father did so; but the
record is barren of evidence that the father told Susan
that he was prompted to speak to her. Hence , I find that
the father's talk to Susan is not coercive And I futher
find that Golofsky' s request to the father is not coercive
as the latter at the time was not employed by Respondent.
However, Susan overheard Golofsky's request to her
father by eavesdropping on an extension telephone at the
Nyman home. I find no violation of the Act in Susan's
overhearing this conversation as her conduct in listening
did not alter the private nature of the talk.
President Golofsky about February 21 asked Virginia
Fell and Marian Witherbee if they had signed union cards
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and who had started the union movement. These inquiries
are prohibited by Section 8(a)(1) of the Act as coercive
interrogation, and I so find. He also stated he could see
their cards if he so desired. In my opinion this is not
coercive, and I so find. Next he observed that the girls
would not win an election if one were held. This is not
coercive because I find i(does not reasonably imply that
the girls should vote against the Union or that it would be
futile to have a union in the plant. Then he mentioned
that if the Union came in it vould control the office. I
find this is not coercive.
Finally, Golofsky told Fell and Witherbee that if the
Union came in he would dock them if they were absent or
came in late, whereas they were enjoying such privileges
now. But I find this is not coercive, as I find that he was
correctly stating the law. It is my opinion that an
employer has a right to say that he will adhere to the
terms of a union contract. This is because an employer
may not unilaterally alter the provisions of a
collective-bargaining contract he has executed with a
recognized union, and thus he may not unilaterally grant
working privileges unless they are contained in the
contract.
About February 21 President Golofsky asked Susan
Nyman to sign a withdrawal petition to be prepared by
one of the employees. His contrary testimony is not
credited. I find this is soliciting an employee to withdraw
from the Union, and that it violates Section 8(a)(1) of the
Act. The remainder of his talk to Susan is innocuous and
does not transgress said Section 8(a)(1).
In late February President Golofsky asked employee
Riner if he knew anything about the Union and what he
thought of it. I find these questions are not coercive. Cf.
Mel Croan Motors, Inc. v. N.L.R.B., 395 F.2d 154-(C.A.
5). However, he also asked Riner if the latter had signed a
union card. This question is coercive as it was not
accompanied by assurances that no reprisals would be
taken. Struksnes Construction Co., Inc., 165 NLRB No.
102; Heck's, Inc., 171 NLRB No. 112.
Supervisor Ted Olson about February 19 asked
employee Linda Jackson if she had signed a union card I
find this is coercive. Although the remainder of Olson's
talk may be labelled as antiunion, I find that it is
protected as free speech under Section 8(c) of the Act.
Hence, I find it does not transgress Section 8(a)(1) of the
Act.
A few minutes later Olson told Jackson that he knew
that employee Jo Thomas had started the union business
and knew where the meeting had been held. His denial is
not credited. I find this is coercive as it gives the
impression of surveillance of Thomas and of a union
meeting. The remainder of this talk, except as narrated in
the next sentence, may be characterized as antiunion, but
it does not transgress Section 8(a)(1) of the Act. However,
Olson also said that if the Union got in he would be
tougher to get along with This is coercive as it denotes
that the advent of the Union will bring about more
arduous working conditions, i.e., it contains a threat of
reprisals.
About February 22 or 23 employee Linda Jackson
overheard Olson tell employee Riner that if the Union
"went through" working conditions would be worse, more
work would be imposed on employees, and that Riner was
jeopardizing his job by signing a union card. I find these
statements are coercive within the meaning of Section
8(a)(1) of the Act.
About February 19 Olson asked employee Rossie
Sargeant if she knew about the Union's activities and why
she wanted a union. I do not credit his denial thereof.
These questions constitute coercive interrogation. He also
mentioned that if the Union got in "things would be
different." I find this last statement is too indefinite and
ambiguous to be construed as a threat of reprisals and
thus coercive, and therefore find it does not violate
Section 8(a)(1) of the Act.
In the middle of February Olson asked employee
Martha Dahl if she would be for the Union. I do not
credit his denial. I find that this is coercive interrogation.
About mid-February Olson also asked employee Larry
Riner whether Riner knew anything about a union in the
office. Olson's contrary testimony is not credited. This
question is not coercive under Section 8(a)(1) of the Act
On February 22 employee Marian Witherbee observed
Jo Thomas while carrying General Counsel's Exhibit 4
enter President Golofsky's office. But I find that this is
not an unfair labor practice not only because it was part
of Jo's duties to confer with Golofsky, but also because
the record is silent as to whether they discussed said
document.
A few days after February 20 Supervisor Mitchell
Rudman asked employee Leonard McMillion if the latter
had signed a union card. Since this has not been
contradicted, I credit McMillion. I find this constitutes
coercive interrogation proscribed by Section 8(a)(1) of the
Act.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE -
Those activities of Respondent set forth in section V,
above, found to amount to unfair labor practices,
occurring in connection with its operations described in
section 1, above, have a close, intimate, and substantial
relation 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.
VIL THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices prohibited by Section 8(a)(1) and (5)
of the Act, it will be recommended that it cease and desist
therefrom and that it take specific affirmative action, set
forth below, designed to effectuate the policies of the Act.
It appears that a bargaining order is necessary to remedy
the unfair labor practices found herein. Graham Ford,
Inc., 172 NLRB No. 50, fn. 4. However, as I find that
Respondent has not demonstrated a proclivity to violate
the Act (see Mel Croan Motors, Inc. v. N.L.R.B., 395
F.2d 154 (C.A. 5), a broad order, i.e., one prohibiting any
unfair labor practices, is unwarranted. Hence an order will
be recommended limited to enjoining Respondent from
repeating only the unfair labor practices found herein and
like or similar acts.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer as defined in Section
2(2), and is engaged in commerce within the meaning of
Section 2(6) and (7), of the Act.
3. By engaging in the following conduct Respondent has
committed unfair labor practices within the meaning of
BROWN SPECIALTY CO.
Section 8(a)(1) of the Act: coercively interrogating
employees concerning their union membership, activities,
or desires; soliciting employees to withdraw their union
authorization cards; threatening to make working
conditions more onerous if the Union got into
Respondent's plant; and warning employees they were
jeopardizing their jobs by signing union authorization
cards.
4. A unit appropriate for the purposes of collective
bargaining within the meaning of Sections 8(a)(5) and 9 of
the Act consists of all office clericals located at
Respondent's Galesburg, Illinois, plant, but excluding
executive, professional, confidential employees, guards,
supervisors as defined in the Act, all other represented
employees, and all other employees.
5. On or about February 13, 1968, and at all material
times thereafter, the Union has represented a majority,
and has been the exclusive bargaining representative, of all
the employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Sections 8(a)(5) and 9 of the Act; and Respondent was on
that date, and has been since, legally obligated to
recognize and bargain with the Union as such.
6. By refusing to recognize or bargain with the Union
for the employees in said appropriate unit on and since
February 13, 1968, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of
the Act.
7. Respondent has not committed any other unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that the National Labor Relations
Board enter an Order that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees as to their
union membership, activities, or desires.
(b) Soliciting its employees to withdraw their union
authorization cards.
(c) Threatening to make working conditions more
onerous if the Union got into Respondent's plant.
(d) Warning employees they were jeopardizing their
jobs by signing union authorization cards.
(e) In any like or similar manner interfering with,
restraining, or coercing its employees in the exercise of
rights safeguarded to them by Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union
as the exclusive representative of all the employees in the
aforesaid appropriate unit and, if an understanding is
reached, embody such understanding in a written, signed
agreement.
(b) Post at its Galesburg, Illinois, plant , copies of the
notice attached hereto as "Appendix."2 Copies of said
notice, on forms provided by the Officer-In-Charge for
Subregion 38, after being signed by a representative of
Respondent thereunto duly authorized, shall be posted by
it immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter in conspicuous places,
529
including all places where notices to employees are
customarily displayed. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Officer-In-Charge for Subregion 38, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
'If this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner" in the notice In the further event that the
Board ' s Order is enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
'If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Subregional Officer-In -Charge, in
writing within 10 days from the date of this Order , of the steps which
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT coercively interrogate our employees
as to their union membership , activities , or desires.
WE WILL NOT solicit our employees to withdraw
their union authorization cards.
WE WILL NOT threaten to make working conditions
more difficult if a union represents our office
employees.
WE WILL NOT warn employees they are jeopardizing
their jobs by signing union authorization cards.
WE WILL NOT in any like or similar manner interfere
with, restrain , or coerce our employees in the exercise
of rights safeguarded to them by Section 7 of the Act,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
WE WILL, upon request, bargain collectively with
Local 221 of the Office and Professional Employees
International , Union, AFL-CIO, as the exclusive
representative of all employees in the bargaining unit
described below with respect to rates of pay, wages,
hours of employment, and other conditions of
employment, and, if an understanding is reached,
embody such understanding in a written , signed
agreement.
The bargaining unit is:
All office clerical employees located at the Company's
Galesburg, Illinois, plant , but excluding executive,
professional, confidential employees , guards, supervisors
as defined in the Act, all other represented employees,
and all other employees.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or
refrain from becoming or remaining , members of said
Local 221, or any other labor organization.
Dated By
BROWN SPECIALTY
COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 4th Floor,
Citizens Building 225 Main Street , Peoria, Illinois 61602,
Telephone 673-9282.