Bryant Chucking Grinder Co.

National Labor Relations Board - Board Decisions

Oct 4, 1966

160 N.L.R.B. 1526 (N.L.R.B. 1966)

1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premature extension of the original single-plant contract and hence
did not bar a petition timely filed with respect to the latter
agreement.
In view of the above decisions, I am doubly puzzled by my col-
leagues' reservation on the question of "whether bargaining history
alone can ever negate the appropriate character of a bargaining
unit." Such a bargaining history clearly has this effect in at least
certain circumstances under longstanding Board policy. It is obvious
that in multiemployer units historical bargaining plays a most per-
suasive, if not a controlling, role.20 And in the multiplant situation,
it is well settled that such a history justifies dismissal of a petition for
some other unit even though the Board would not itself establish the
historical multiplant unit were the issue presented for initial deter-
mination.21 It is true that in those cases the historical units were of
long standing. However, the Board has never applied a temporal
limit to its general rule that it will not disturb an established bar-
gaining relationship unless required to do so by the dictates of the
Act or other compelling circumstances.22
Since I cannot accept my colleagues' grounds for ignoring the bar-
gaining history in the instant case, I do not join in their departure
from the Board's practice of denying severance of one plant which
has become merged into a multiplant unit. I would therefore dismiss
the petition in this matter.
w Chicago Metropolitan Home Builders Association, 119 NLRB 1184.
21 The Great Atlantic .C Pacific Tea Company, Inc, 153 NLRB 1549, and cases cited
in footnote 8 thereof.
22Ibid
Bryant Chucking Grinder Company and United Electrical, Radio
and Machine Workers of America ( UE) Local 218. Case 1-CA-
037. October 4, 1966
DECISION AND ORDER
On June 4, 1965, Trial Examiner Fannie M. Boyls issued her Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices alleged in the com-
160 NLRB No. 125.
BRYANT CHUCKING GRINDER COMPANY. 1527
plaint. Thereafter, General Counsel and Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs. The Respond-
ent also filed a brief in answer to the General Counsel's exceptions.'
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 [Chairman McCulloch and Members Jenkins and Zagoria].
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.2 The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,3 conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
1. We agree with the Trial Examiner that the complaint should not
be dismissed, insofar as it alleges a violation of Section 8(a) (5) of
the Act, because of delay in its issuance by the General Counsel. The
record shows that at about the time the charge was filed in this case,
another case was pending before the Board 4 which presented the
issue whether the Board would continue to follow the doctrine of
Louis Aiello, et al., d/b/a Aiello Dairy Farms 5 that a union which
had gone to an election should be held to have waived its right to
assert that an antecedent refusal to bargain violated Section 8(a)(5)
i Respondent 's request for oral argument is hereby denied as the record , exceptions, and
brief, adequately present the issues and positions of the parties
2 Initially , the Trial Examiner ruled that witnesses called by the General Counsel for
the purpose of authenticating their signatures to authorization cards could not be cross-
examined as to the circumstances under which their signatures were obtained . Instead,
she ruled that Respondent would have to take such witnesses as its own if it wished
to establish the existence of fraud, coercion , or misrepresentation such as to invalidate
their cards. Respondent appealed to the Board which, on August 4, 1964, reversed the
rulings of the Trial Examiner and directed that Respondent should be permitted to cross-
examine General Counsel's witnesses as to the circumstances under which they signed
the authorization cards Upon the resumption of the hearing, the Trial Examiner ruled
that while Respondent would be permitted to undertake such cross-examination , it would
not be permitted to ask leading questions of such witnesses until it became clear that they
were hostile , to the Respondent or that their recollection of the circumstances under which
they bad signed authorization cards were exhausted . We believe that her ruling imposing
a conditional limitation on the use of leading questions was within the scope of her discre-
tion and was not erroneous.
3 The spelling of Foreman Ray LaMire's name is hereby corrected wherever it appears
in the Trial Examiner 's Decision . The Respondent correctly points out that a stipulation
regarding the genuineness of the signatures on the authorization cards was obtained on
the second, rather than the first, (lay of the hearing, and that it appealed to the Board
from a ruling of the Trial Examiner on July 29, 1964, rather than on July 27. We correct
the Trial Examiner 's Decision in these respects without further comment since they do
not affect either her or our substantive findings.
'Barker's East Main Corp., 142 NLRB 1194. -
5 110 NLRB 1365.
1528W DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act.-6 The General Counsel believed, correctly as it turned out,
that' the Board" might determine to overrule the Aiello doctrine. In
these circumstances, it was reasonable for the General Counsel to
await the outcome of the "lead" cases before proceeding with this
case. Indeed, if the enforcement of the important rights involved
herein were to be uniformly applied and not to turn on the haphazard
selection of cases, by the General Counsel to test the disposition of the
Board to sustain an 8(a) (5) allegation in these circumstances, the
General. Counsel had no choice but to handle the instant case as he
did. The only alternative was to issue a complaint, on every such
charge and, to litigate, it fully, despite the hazard that the Board
might subsequently decide against the principle on which those cases
were based and dismiss all those complaints.
The Board has not heretofore sought to require the General Coun-
sel to follow the latter course. It could prove to be an unduly burden-
some and costly case-handling procedure for the parties as well as this
Agency. We do not deem it wise to require it now, as our dissenting
colleague urges. Section 3(d) of the Act confers upon the General
Counsel the final authority with respect to the issuance of complaints,
and we perceive no abusive exercise of that discretion here. The delay
that resulted from awaiting the decision in the Bernel case, like the
delay in the later stages of the instant decision, was largely a con-
sequence of the time required for the decision-making procedure at
the Board's level.
Our decision finding no merit in this exception of the Respondent is
further supported by the absence of a showing that Respondent suf-
fered any,prejudice as a result of the delay in scheduling the hearing
in this case. We find without merit the Respondent's contention that
the principle.of Bernet Foam Products Co., Inc., supra, should not be
applied retroactively in this case. Even where a party has been led
into unlawful conduct by a reasonable reliance on then-existing Board
doctrine, the Board has, with court approval, changed prior rules or
holdings retroactively where the overriding policies of the Act so
require.7 But here, the Respondent cannot claim to have relied on the
6A letter from General Counsel Ordman to counsel for the Respondent explaining the
delay in the issuance of the complaint was made a part of the record in this case. Therein,
the General Counsel states that shortly after the Union filed its request for review of the
Regional Director's refusal to issue a complaint on its Section 8(a) (5) allegation, another
case prosecuted by the General Counsel was pending before the Board raising the same
issue See Barker's East Main Corp , supra The Decision of the Board in that case was
Interpreted by the General Counsel as an indication that the Boned would overrule the
Aiello case The General Counsel further stated in the above letter that he selected a few
representative cases in which to present this issue to the Board which, as lie anticipated,
overruled Aiello. See, Bernel Foam Products Co , Inc, 146 NLRB 1277. He then authorized
the issuance of complaints alleging violations of Section 8(a) (5) in this and other cases
involving this issue.
7 See N.L.R.B. v. National Container Corp., 211 F.2d 525, 534-535 (C A 2) Compare
N L R.B. v. E & B Brewing Company, Inc., and Drivers and Helpers Local No 18, Inter-
national Union of United Brewery, Flour, Cereal. Soft Drink & Dsstillemy Workers of
America, AFL-CIO, 276 F.2d 594 (C.A. 6), cert. denied 366 U.S. 908.
BRYANT CHUCKING GRINDER COMPANY 1529
rule of the Aiello case either in declining to recognize the Union on
August 17, 1962, or in its subsequent violations of Section 8(a) (1) of
the Act, for even under Aiello the Union could have withdrawn its
petition at any time prior to the election on November 1, 1962, and
filed the charge that initiated this proceeding. Thus, there is no basis
whatever for objecting to the application of the new Board doctrine.8
2. The Trial Examiner found, and we agree, that Respondent
unlawfully interrogated 41 of its employees through 7 of its super-
visory personnel and made various threats of reprisal against its
employees.
3. The Trial Examiner also found, and we agree, that Respondent
unlawfully interfered with the rights of its employees under the Act
when it announced improvements in its pension plan on October 9
and 10, 1962, and when it announced further improvements in pension
benefits on October 29, 1962.3 As pointed out by the Trial Examiner,
Respondent had in the past made improvements in pension benefits
independent of increases in the general wage level. Thus, the
announcement of pension improvements on October 9, 1962, cannot be
considered to have been a part of the regular October wage increase
granted to employees in past years. Moreover, these improvements
were not to become effective until January 1, 1963, well after the
scheduled date of the election. Respondent chose to announce further
improvements in pension benefits in a series of mass meetings wf
employees just 2 days before the November 1, 1962, election. Ihis
series of specially timed announcements convinces us that they were
de,;igned to, and did, interfere materially with the organizational
rights of its employees in violation of Section 8(a) (1) of the Act.10
4. We agree with the Trial Examiner's findings that Respondent's
refusal to bargain with the Union on August 17, 1962, violated Sec-
tion 8 (a) (5) of the Act. The Trial Examiner correctly found that a
a See N L R 11 v . National Container Corp , sapra, 535, making the same point in a
similar context We note, inoleover , with respect to the argument of our dissenting col-
league , that the fact that our Decision in Bernet Foam, reversing the rule of A iello, did
not issue until May 4 , 1964 , did not prompt the Board majority to withhold remedial
orders to cease and desist from refusing to bargain anu requiring future bargaining either
in Bernel, where the refusal to bargain was found to have occurred on November 12, 1962,
or in such cases, following the rule i n lternel , as C N C Manufacturing Company, 147
NLRP. 809, enfd. 352 F.2d 361 (C A D C ), cert denied 382 U S 902, where the retusal to
bargain was on March 5 , 1963, or The Colson Corporation , 148 NLRB 827 , enfd 347 F 2d
128 (C A. 8), cert. denied 382 U.S 904, where the refusal to bargain was on January 8,
1963.
9 On October 9, 1962 , the Company announced a general increase in monthly pension
payments by 30 to 40 cents for each year of credited service with the Company and the
introduction of a joint and survivor option . On October 29, it announced the following
additional benefits ( 1) Reduction of the length of service required for eligibility for dis-
ability retirement from 15 years to 10 years; (2) increase in minimum pension payments
for certain automatic retirees from $24 to .$28; ( 3) ineiease in pensions payable to
employees terminated before becoming eligible for full pension by giving them credit for
service performed before they attained age 30 , ( 4) increased double pensions payable to
certain early retirees in relation to their eligibility for social security.
3 0 N L R B. v. Exchange Parts Company, 375 U.S. 405.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear majority of the employees in an appropriate unit 11 had validly
designated the Union as their bargaining representative when the
Union made its demand for recognition. Respondent's subsequent
unfair labor practices, designed to induce employees to abandon their
support for the Union, demonstrated a' rejection of the collective-
bargaining principle and give rise to the inference that its initial
refusal to bargain was not in good faith.12 Moreover, while a Board
election is normally the best method of determining,whether or not
employees desire to be represented by a bargaining agent, where, as
here, an employer engages in unfair labor practices which make
impossible the holding of a free election, the Board has no alternative
but to look to signed authorization cards as the only available proof
of the -choice employees would have made absent the employer's
unfair labor practices.13
Further, even if the record had warranted the conclusion, contended
for by the Respondent, that it relied, in refusing to bargain with the
Union, on a bona fide doubt of the Union's majority, effectuation of
the policies of the Act would still require a remedial order directing
the Respondent to bargain with the Union upon request, in order
properly to remedy the Respondent's other unfair labor practices here
found.- The record establishes that the Union had a clear majority
when the Respondent began its course of unfair labor practices
directed at destroying that majority. To the extent that the election
revealed 'a loss of union support thereafter, such loss must be found
attributable to the Respondent's unfair labor practices. Therefore, we
shall order the Respondent to bargain, upon request, with the Union
both to remedy its violation of Section 8(a) (5) and its violations of
Section 8 (a) (1) of the Act.
[The Board adopted the Trial Examiner's Recommended Order.] is
[The Board dismissed the complaint insofar as it alleges unfair
labor practices not found herein.]
"We agree with the Trial Examiner that the Respondent is estopped in this proceeding
from relitigating the scope of the appropriate unit and from making contentions with
respect to the unit which it could have raised with the Regional Director in the underlying
representation case. Thus, we affirm the findings of the Trial Examiner with respect to
appropriateness of the unit of approximately 337 employees , and excluding those employed
by Respondent 's computer division.
12 Joy Silk ]fills Inc. v. N.L R B., 185 F.2d 732 (C.A.D C ).
13 See New England Liquor Sales Co , Inc., 157 NLRB 271 , Ben Colson Manufacturing
Company, at al., 112 NLRB 323, 342.
14 Editorial "El Imparcial" Inc. v. N.L R B , 278 F.2d 184 ( C. A. 1) ; Piasecki Aircraft
Corporation v NLRB , 280 F.2d 575, 591-592 (C.A. 3), cert. denied 364 U S. 933: D. H.
Holmes Company, Ltd v. N.L R.B., 179 F.2d 876, 879-880 (C.A. 5) , N.L R.B. v Delight
Bakery Inc., 353 F.2d 344 (C.A. 6) ; N.L.R B. v Joe Caldarera, d/b/a Falstaff Distributing
Company, 209 F.2d 265, 268-269 (C.A. 8 ). Cf. N.L .R.B. v. Flomatic Corp, 347 F.2d 74
(C.A. 2).
15 The telephone number for Region 1, appearing at the bottom of the notice attached
to the Trial Examiner 's Decision, is amended to read : Telephone 223-3358.
BRYANT CHUCKING GRINDER COMPANY ' 1531
MEMBER JENKINS , dissenting in part :
I agree generally with the conclusions and remedial order recom-
mended by the majority. However, I disagree with their reliance
on the Board's decision in Bernel Foam Products Co., Inc., 146 NLRB
1277, because I think this case should have been decided under the
pre-Bernel rules under which it normally would have been
determined.
Briefly, the Union requested recognition as bargaining representa-
tive on August,14, 1962, and on August 16, before receiving any reply,
filed a petition for an election. The Employer was notified of the peti-
tion for election and on August 17 refused to grant recognition, stat-
ing that its policy was to have a union's majority status determined
by a Board-conducted election. It is clear from the record that the
Union's request for recognition was pro forma, that it intended to
proceed to an election, and that it so informed the employees when it
solicited union authorization cards. An election was held on Novem-
ber 1, 1962, which the Union lost. The Union filed, objections to the
election and on December 18, 1962, the Regional Director set aside the
election. Thereafter, the Union withdrew its petition for an election
and on January 3, 1963, the Union filed charges alleging preelection
violations of Section 8 (a) (1) and alleging that Respondent's refusal
on August 17 to grant recognition and bargain violated Section
8(a) (5).
Thereafter, the Acting Regional Director, apparently relying on
Aiello Dairy Farms, 110 NLRB 1365, refused to issue a complaint on
the refusal-to-bargain charge and entered into an agreement with the
Respondent settling the alleged violations of Section 8(a) (1). The
Union refused to join the settlement and appealed to the General
Counsel in Washington. There the case rested for some 15 months.
Then, on May 22, 1964, the General Counsel sustained the Union's
appeal and on June 5, 1964, issued the complaint herein relying on
the authority of the Board's decision in Bernel Foam Products Co.,
Inc., supra, which issued on May 4, 1964.
The majority considers that the 15-month delay by the General
Counsel was "reasonable" and that he "had no choice" except to
handle the case as he did. I do not agree.16
Simply stated, the applicable rule at the time of the Union's appeal
to the General Counsel was that where a union proceeds to an election
with knowledge of an employer's unfair labor practices, it waives the
right to proceed thereafter on a refusal-to-bargain charge predicated
16 As the General Counsel is the final authority in determining whether to issue com-
plaints, my comments and conclusions are limited to the unpact of his actions on the
case before us.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on conduct occurring before the election. Therefore, on the basis of
the rule existing at the time of the appeal, the charge would have
been dismissed.
Where the Board revises, or has indicated that it may be willing to
revise, an existing rule, some modest degree of delay in pending cases
may be appropriate to obtain uniformity and effectiveness in the
application of the revision '17 and I am sure such considerations
weighed with the General Counsel. To extend this tolerance of flexi-
bility or reasonable judgment to include a delay of 15 months implies,
however, that the General Counsel has almost unfettered discretion in
the future to withhold or delay action in every case in which his
informed judgment indicates the Board may be persuaded to change
its views.
I recognize that the General Counsel was faced with what may have
seemed the even more unpalatable alternative of litigating every such
case to a conclusion, at considerable expense and effort to the parties
and the Government, in order to determine whether or when the Board
would apply the new rule. I recognize also that the General Counsel's
delay was in sonle mea,;ure attributable to the Board's own unavoid-
able delay in the decisional process culminating in Bernel. These fac-
tors, however, must be evaluated against the "reasonable dispatch"
requirement of Section 6(a) of the Administrative Procedure Act,
and the policy expressed in Section 10(b) of our own Act against
processing of stale charges. Delays of this character in the admin-
istrative process are unfair and unduly burdensome to the parties.
Pendency of litigation and uncertainty as to its outcome may inter-
fere with the planning and performance of operations. Lapse of time
obscures the facts and makes them more difficult (and expensive) to
ascertain. On balance, therefore, I think the proper disposition of this
case is to apply the "before Bernel" rule to the preelection misconduct
of the employer in this case, and I would dismiss the complaint as to
those violations.
I concur with my colleagues in finding postelection violations of
Section 8 (a) (1) of the Act, and agree that a bargaining order is the
appropriate remedy for those violations.
17 where appropriate, I have found that conduct laiNful at the time of its occurrence
may later be found by the Board to be unlawful because of a reversal of Board precedent.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 3, 1963, by United Electrical , Radio and Machine
Workers of America (UE) Local 218, herein called the Union, a complaint was
issued on June 10, 1964. The complaint as amended on July 16, 1964, and as
further amended at the hearing , alleged that Respondent , Bryant Chucking Grinder
Company, had engaged in unfair labor practices within the meaning of Section
8(a)(1) and ( 5) of the National Labor Relations Act, as amended . Respondent
BRYANT CHUCKING GRINDER COMPANY 1533
filed answers to the complaint and the amendments to the complaint, denying that
it had engaged in the unfair labor practices alleged and setting forth certain
affirmative defenses which will be treated hereinafter. A hearing was held before
Trial Examiner Fannie M. Boyls at Springfield, Vermont, on July 28 through
August 11, and on September 28 through October 9, 1964. At the conclusion of
the hearing all parties waived oral argument but thereafter filed briefs which have
been carefully considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and I find that Respondent
is a Vermont corporation maintaining its principal office and place of business in
Springfield, Vermont, where it is engaged in the manufacture, sale, and distribution
of machine tools, internal grinders, and related products. In the course and conduct
of its business, Respondent receives annually directly from points outside the State
of Vermont materials valued in excess of $50,000, and ships annually to points
outside the State products valued in excess of $50,000. Respondent is, and has
been since February 1959, a wholly owned subsidiary of Ex-Cell-O Corporation,
whose headquarters are in Michigan. I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits, and I find that United
Electrical, Radio and Machine Workers of America (UE) Local 218, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and issues
The Union lost an election conducted by the Regional Director of Region I on
November 1, 1962, in a unit of Respondent's employees found to be appropriate.
Thereafter, the Union filed timely objections to the election, asserting that certain
improper preelection conduct of Respondent had affected the results of the election.
The Regional Director, on December 18, 1962, issued his Supplemental Decision,
finding merit to some of the objections, setting aside the election and stating that
he would conduct a new election at a time and place to be determined.' Respond-
ent did not file with the Board any exceptions to the Regional Director's findings
or any request for review of such findings, and the propriety of the Regional
Director's action in that regard is therefore not now subject to challenge (Section
102.67 and 102.69 of Board's Rules and Regulations, Series 8, as amended).
On January 3, 1963, the Union filed unfair labor practice charges, alleging that
Respondent since on or about August 14, 1962, when the Union requested recog-
nition as the employees' bargaining representative, had violated Section 8(a)(l)
and (5) of the Act by unilaterally granting wage increases and other benefits, by
interrogating employees concerning their union membership and activities, and by
engaging in other acts designed to dissipate the Union's majority status in the
appropriate bargaining unit. Following an investigation, the Regional Director and
Respondent entered into an agreement designed to settle the Section 8(a)(1)
violations alleged, and the Regional Director refused to issue a complaint on these
alleged violations or on the Section 8(a)(5) charge. The Union, however, did not
join in the agreement and appealed to the General Counsel from the Regional
Director's approval of the settlement agreement and his refusal to issue a com-
plaint. By letter dated May 22, 1964, the General Counsel notified the parties that
he had sustained the Union's appeal. He stated that the Section 8(a)(5) allegation
presented issues which should be resolved by the Board on the basis of record
testimony developed at a hearing before a Trial Examiner, citing Bernel Foam
Products, 146 NLRB 1277. He therefore remanded the case to the Regional Direc-
tor with instructions to set aside the Section 8(a)(1) settlement agreement and
issue an appropriate Section 8(a)(1) and (5) complaint.
'i In view of subsequent developments no new election was ordered and on June 8, 1964,
the Union requested and recei' ed permission to withdraw Its representation petition.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint which was then issued , and as amended prior to the hearing,
alleged that Respondent on and after August 14, 1962 , engaged in unfair labor
practices in violation of Section 8 (a) (5) and ( 1) of the Act by unlawfully refusing
to bargain with the Union as the collective -bargaining representative of Respond-
ent's employees in an appropriate bargaining unit and by engaging in various acts
of interference , restraint , and coercion , including the interrogation of its employees
regarding their union membership and sympathies , the promising and granting of
benefits to its employees, the solicitation of employees to engage in surveillance
of union meetings and activities , engaging in such surveillance and giving the
impression it was engaging in such surveillance , and threatening discharge or other
reprisals because of union membership or activities . It was the theory of the com-
plaint that the Union was in fact the majority representative of Respondent's
employees in an appropriate bargaining unit when it requested recognition on
August 14 , 1962, and that Respondent , in refusing the Union 's request for recog-
nition and bargaining on August 17, 1962, was not motivated by a good-faith
doubt as to the Union's majority status in such appropriate unit, but was instead
motivated by a desire to gain time in which to dissipate the Union 's majority
status, and that it thereupon embarked upon a course of unfair labor practices
designed to defeat the Union in the election which was held on November 1, 1962.
In these circumstances , the General Counsel asserted that the Board should, in
determining the Union 's representative status and Respondent 's obligation to bar-
gain with the Union, rely on the union authorization cards signed by a majority
of the employees in the appropriate bargaining unit prior to the bargaining request
on August 14, 1962.
On the first day of the hearing, the complaint was further amended to allege
that Respondent through its attorneys and other representatives had engaged in
additional Section 8 ( a)(1) conduct by interrogating Respondent 's employees con-
cerning their union membership , activities, and desires ; by informing Respondent's
employees that they need not cooperate with Board agents during their prehearing
investigation ; and by implanting in the minds of its employees and suggesting to
them testimony which it sought to have them give in support of its defense.
Respondent 's answer, in addition to denying the commission of any unfair labor
practices, challenged the majority status of the Union as well as the appropriate-
ness of the bargaining unit found appropriate in the representation proceeding. It
also challenged the authority of the General Counsel to issue the complaint, con-
tending that the General Counsel was improperly applying to this case a new
Board policy set forth in Bernel Foam Products, rather than the policy which it
had theretofore announced in 1954 in Aiello Dairy Farms, 110 NLRB 1365. The
latter contention , it seems to me, is not one properly addressed to the Trial Exam-
iner, for the Board has already considered this problem and explained in Bernel
Foam that Aiello "was itself a departure from well -established prior Board prece-
dent" and that the Board has now reverted to its pre-Aiello, rule, a rule which has
been applied by the Board and approved by the courts on numerous occasions 2
prior to Aiello and has recently again been approved by the court in International
Union of Electrical, Radio and Machine Workers (S.N.C. Manufacturing Com-
pany, Inc.) v. N.L.R.B., 352 F.2d 361. Nor can I see any legal basis for Respond-
ent's complaint that the General Counsel , in the exercise of his "final authority, on
behalf of the Board , in respect to the investigation of charges and issuance of
complaints" (Section 3 (d) of the Act), saw fit to hold in abeyance his decision
as to whether to issue a complaint on the Union 's charge while awaiting the
Board's decision in another case on whether it would change its Aiello rule.
Respondent has shown no prejudice to itself or its employees by reason of the
procedure followed in this case.
The basic issues before me are the following:
1. Whether , barring newly discovered evidence or changed circumstances not
present in this case , Respondent is bound by the Regional Director 's determination
in the representation proceeding as to the appropriate bargaining unit.
2 See e.g., Joy Silk Mills , Inc., 85 NLRB 1263, enfd . 185 F.2d 732 (C .A.D.C.) ; Howell
Chevrolet Company, 95 NLRB 410, enfd. 204 F.2d 79 (C.A. 9) ; Model Mill Company, Inc.,
103 NLRB 1527, enfd . 210 F.2d 829 (C.A. 6) ; Armco Drainage & Metal Products , Inc, 106
NLRB 725, enfd. as modified , 220 F.2d 573 (C.A. 6), cert. denied 350 U. S. 838; South-
eastern Rubber Manufacturing Co , Inc., 106 NLRB 989, enfd. 213 F.2d 11 (C.A. 5) ;
Stow Manufacturing Co., 103 NLRB 1280, enfd. 217 F. 2d 900 (C.A. 2), cert. denied 348
U.S. 964.
BRYANT CHUCKING GRINDER COMPANY 1535
2. Whether on August 14, 1962, when the Union requested recognition and
bargaining, it had been designated by a majority of the employees in an appropri-
ate bargaining unit to represent them.
3. Whether Respondent, in refusing to recognize and bargain with the Union,
was motivated by a good-faith doubt as to the Union's representative status.
4. Whether Respondent, between August 14 and the election on November 1,
1962, engaged in unfair labor practices in violation of Section 8(a)(1) of the Act.
5. Whether Respondent, in 1964, through its attorneys and other representatives,
unlawfully interrogated employees, discouraged them from cooperating with Board
agents during their prehearing investigation and trial of the case, and implanted
in the minds of the employees or suggested to them testimony which Respondent
sought to have them give in support of its defense.
B. The appropriate bargaining unit
1. The 'unit determination in the representation proceeding
In the Union's bargaining request received by Respondent on August 14, the
unit was described merely as Respondent's "hourly rated production and main-
tenance employees" (General Counsel's Exhibit 200). In the representation petition
which it filed on August 16, the unit was more particularly described as "All hourly
rated production and maintenance employees of Bryant Chucking Grinder Com-
pany, 257 Clinton Street, Springfield, Vermont, including truckdrivers" but exclud-
ing "clerical employees, technical employees, professional employees, guards, lead-
men and supervisors as defined in the Act" (Respondent's Exhibit 3).
At a hearing on the representation petition, the parties were in agreement as to
the appropriateness of the basic production and maintenance unit described in the
petition but were in dispute as to the unit placement of the leadmen, three watch-
men and six hourly rated trainees, all of whom the Union wanted excluded and
the Employer wanted included. On the basis of the evidence adduced at the hear-
ing, the Regional Director concluded that all but two of the leadmen were super-
visors and should be excluded from the unit, but that the evidence as to two,
Wheelock and Nies, was inconclusive and that they should be permitted to vote
under challenge; that the three watchmen performed guard duty and should there-
fore be excluded from the unit; and that since the record was unclear as to whether
the six hourly paid trainees were being trained for management or production jobs,
they should be permitted to vote under challenge. On October 11, 1962, he issued
his Decision and Direction of Election (General Counsel's Exhibit 139) in which
he included in the production and maintenance units, among others, Respondent's
cooperative students and plant clerical employees. Thereafter, pursuant to a motion
to amend the Decision and Direction of Election and stipulation of the parties, the
Regional Director on October 23, 1962, issued his Amended Decision and Direction
of Election in which he described the appropriate unit as follows (General Coun-
sel's Exhibit 3) :
All hourly rated production and maintenance employees at the employer's
Springfield, Vermont plant, including truckdrivers and production expeditors
but excluding office clerical employees, cooperative students, plant clerical
employees, technical employees, professional employees, leadmen, watchmen,
guards/ and supervisors as defined in the Act.
In his Amended Decision and Direction of Election, the Regional Director recited
that he was excluding rather than including the cooperative students and plant
clerical employees because of the motion and stipulation of the parties.
2. Respondent's present contentions regarding the unit
Despite the fact that Respondent in the representation proceeding was, as above
indicated, in substantial agreement as to the composition of the bargaining unit
and did not appeal from the Regional Director's Decision thereon, is sought in
this proceeding to relitigate the whole unit issue, making contentions now which
it had not made in the representation proceeding and even challenging the exclusion
from the unit of employees it had expressly stipulated should be excluded from the
unit. For example, in this proceeding it contends that plant clericals should be
included in the unit although, despite the Regional Director's finding to that effect
in his original Decision, Respondent joined in a stipulation that they should be
excluded, thereby causing the Regional Director to issue an Amended Decision in
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he excluded them . Moreover , Respondent contends for the first time in this
proceeding that the approximately 67 employees of another corporate employer
located about a mile from Respondent 's plant should be included in the unit. It
contends that computer division of the Ex-Cell-O Corporation of Delaware, Ohio,
which at one time , under a slightly different name, was a part of Respondent's
operations at its Clinton Street plant but which in 1961 became a separate and
wholly owned subsidiary of Ex-Cell-O Corporation, should be included in the unit
with Respondent's employees. The representation petition had made it clear that
only Respondent's employees located at its 257 Clinton Street plant were deemed
by the Union to be in the appropriate unit. No mention had been made in the
representation proceedings of the existence of this other employer. Respondent has
not contended that changed circumstances since 1962 now make it appropriate to
include the computer division employees of the parent corporation. Indeed, when
asked by me whether there were any such changed circumstances, counsel for
Respondent replied, "No, I think it probably goes in the other direction. I think
it would be much less appropriate to include them today than it was in 1962."
It was my position at the hearing in this case, and still is, that in the absence
of changed circumstances or of new and previously unavailable evidence-con-
cededly not present here-the Regional Director's findings in the representation
proceeding as to the appropriate unit should be controlling in this case.3 Accord-
ingly, Respondent was not permitted to relitigate any phase of the unit issue which
had already been litigated and decided in the representation proceeding . In these
circumstances , "a single trial of the issue was enough ." Pittsburgh Plate Glass
Company v. N.L.R.B., 313 U.S. 146, 162. "An issue covered and decided in unit
proceedings cannot as of right be relitigated in a subsequent unfair labor practice
proceeding." N.L.R.B. v. Worcester Woolen Mills Corporation, 170 F.2d 13, 16
(C.A. 1), cert. denied 336 U.S. 903. See also Paramount Cap Manufacturing Co.
v.N.L.R.B., 260 F.2d 109 (C.A. 8). The fact that the Regional Director set aside
the election results because of Respondent 's conduct which he found interfered
with the free and uncoerced choice by the employees, and that the Union, after
being notified that its appeal to the General Counsel had been sustained, withdrew
its representation petition should in no way nullify the validity or binding effect
of the Regional Director 's finding as to the appropriate unit in that proceeding.
Dazzo Products, Inc., 149 NLRB 182. The record in the representation proceeding
is a part of the record in this proceeding.
The parties in this proceeding were, however, permitted to adduce evidence
regarding the unit placement of certain individuals whose inclusion or exclusion
from the production and maintenance unit had not been determined by the Regional
Director. These individuals consist of the two leadmen and the six trainees who
were permitted to vote under challenge, and of five summer employees who were
not referred to in the Regional Director's Decision.
3. The individuals whose unit placement was not decided in the
representation case
a. The two leadmen: The issue as to the two leadmen, Frederick Nies, Jr., and
LeClair Wheelock, is whether, like Respondent's other leadmen, they are super-
visors within the meaning of Section 2(11) of the Act and should accordingly be
excluded from the unit?
Nies has been the leadman in the pipefitting section of the assembly department
(also called department 11) for the past 18 or 20 years. In addition to the pipe-
fitting section, there are four other sections in that department , which in August
1962, employed about 40 employees. Foreman Elwyn Barber was in charge of the
department and he had an assistant foreman, Robert Prouty. During Nies ' tenure
as pipefitting leadman there have been as high as 30 and as low as 2 pipefitters
working there. In August 1962, there were four, including Nies. Nies, like the
other pipefitters , is paid on an hourly basis. He testified that in August 1962, when
3 Section 102 07(b) of the Board's Rules provides that the Decision of the Regional
Director shall be final, in the absence of a timely request for review by the Board.
Respondent concededly made no such request for review
The findings as to Nies and Wheelock are based upon the evidence adduced in this
proceeding considered in conjunction with that adduced in the underlying representation
case.
BRYANT CHUCKING GRINDER COMPANY ' 1537
there -were no new or inexperienced pipefitters to be trained, he spent about 90
percent of his time on production work, that is, the installation of all hydraulic,
pneumatic, and cooler parts required for the functioning of machines according to
customer specifications. The other 10 percent of his time, he explained, was spent
"working in conjunction with engineering on new development, changing or modi-
fying present development due to changes in merchandise or additional features on
the machine." At other times, such as at the time of the hearing, he spends very
little time on regular production work for his time is largely consumed in training
new men As a leadman, it is his duty to lay out work for the other pipefitters;
design additions of parts on the machines; interpret the ideas of the engineering
department and apply them to the machines; assign work to new or unskilled pipe-
fitters and instruct them in their work; inform all the pipefitters of changes in the
work schedules; see that the machines built have the proper hydraulic, pneumatic,
and cooling system installed in accordance with specifications of the customer as
well as of Respondent; and where defects occur, see that they are corrected.
Although Nies has no power to hire or fire employees, he has occasionally been
consulted by management in connection with its decision to lay off, as well as to
recall employees, and except on one occasion where management decided to let
seniority be the controlling factor, Nies' recommendations have apparently been
followed. Upon several occasions management has also consulted him in con-
nection with whether to grant raises to certain pipefitters and his recommendations
in that respect have been followed. I find that Nies has authority effectively to
recommend layoffs, recalls, and wage increases, and that he responsibly directs the
work of the other pipefitters. He is therefore a supervisor within the meaning of
Section 2(11) of the Act and is excluded from the appropriate bargaining unit.
Wheelock has been a leadman in the wheelhead assembly department (also
known as department 12) for 6 or 7 years, working under Foreman Ed Grethe.
Employment in that department has fluctuated between 6 and 11 persons including
Wheelock. In August 1962, there were only six. It is the functioii of the depart-
ment to build and to, balance rotating parts on machines using a delicate class
of bearings. Wheelock, the most experienced of the men, can and does operate
all equipment in the department. In addition to performing assembly work, he
breaks in, instructs, and assists other persons performing assembly work and checks
the work of new men until they become competent; but, according to Wheelock,
he instructs and helps the men with their difficulties only after Foreman Grethe
requests him to. He reports to his foreman any defective work- on-materials which
may come to his attention. He also analyzes defective wheelheads and makes a
written report regarding them which goes to the foreman, to the engineering depart-
ment, and to the sales department. He is not however responsible for quality
control. He receives 10 cents an hour more than the regular highest-classed assem-
blyman. When his foreman is absent on vacation or because of illness or for any
other reason, Wheelock takes over his responsibilities. Wheelock does not assign
jobs except in the absence of his foreman, and does not hire, fire, discipline, sus-
pend, lay off, recall, transfer, promote, grant pay increases or time off, or make
any recommendations with respect to these matters. On the basis of this evidence,
I am not persuaded that Wheelock responsibly directs the work of the other
employees in his department or otherwise possesses the, indicia of a supervisor as
defined in the Act. The fact that on specific occasions, when Foreman Grethe is
absent from the plant, Wheelock substitutes for him, is not alone sufficient to estab-
lish his supervisory status. U.S. Gypsum Company, 116 NLRB 1771, 1773; Martin
Aircraft Tool Company, 115 NLRB 324, 326.
In reaching this, conclusion regarding Wheelock, I am not unmindful of the fact
that Vice President and General Manager Leyds appears to have considered that
leadmen, in general, were not employees-for in answer to a question as to what
position Merton Goodell, Sr., held in 1959, he answered that he was not sure
whether Goodell was "a leadman or an employee." I am also aware of the fact
that Wheelock at the hearing apparently attempted to play down the importance
of his position. Nevertheless, on the basis of, the evidence in the record, I do not
feel warranted in concluding that he was a supervisor.
b. The six trainees: On August 14, 1962, six employees were working as "train-
ees." The record in the representation proceeding (Case 1-RC-7067) is not clear
on the issue as to whether they were being trained for management or for pro-
duction jobs. Raymond Converse, who was. Respondent's assistant personnel man-
257-551-67-vol. 160-98 -
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ager in 1962, testified, and I find, that all of these six employees were hired as
trainees for the test floor and were to have, and subsequently did have, the title
of "inspector, machine quality assurance" upon the completion of their training
period. Other persons employed in that capacity were considered employees entitled
to vote in the election and did vote without challenge. It is therefore found that
these six employees who were trainees on August 14, 1962, are a part of the appro-
priate bargaining unit .5
c. The summer employees: Four college students, William R. McGrotty, Gary
A. Holt, Nicholas J. Woodbury, Ives J. Nadeau, and one teacher, Paul H. Potter,
were employed as summer employees in the summer of 1962, with the expectancy
that they would return to or attend school in the fall. Respondent's ex-personnel
manager, Converse, characterized all as "temporary help." All were classified as
temporary employees on August 14, 1962. It was Respondent's policy to rehire
summer employees in succeeding summers if work was available and if no regular
employees were on layoff status. Four of the five here involved have worked for
Respondent during more than one summer. Although Respondent did not include
the names of any of these employees on the voting eligibility lists submitted by it
prior to the election, it now contends that all five should be included in the unit
but that in any event, all should be treated alike. The General Counsel, on the
other hand, contends that one of the five, McGrotty, should be included in the
unit and the other excluded. His basis for treating McGrotty differently is the fact
that McGrotty learned in July 1962, that he would be unable to return to college
that fall and was thereafter given permission to stay on as a regular employee until
February 1, 1963, when he resumed his college education. McGrotty's employment
records, however, show that his status was not changed to that of a permanent
employee until August 28, 1962, subsequent to the Union's request for bargaining
and Respondent's refusal. I accordingly find that on August 14 and 17, the critical
dates, McGrotty, like the other summer employees, was a temporary employee.6 It
is the Board's practice to exclude from the bargaining unit students or teachers
who work only during the summer or during vacations unless they have a reason-
able expectancy of forthcoming permanent employment. N.L.R.B. v. Joclin Manu-
facturing Company, 314 F.2d 627, 634 (C.A. 2); Brown-Forman Distillers Corpo-
ration, 118 NLRB 454, 455; Oscar Ewing, Inc., 124 NLRB 941, 942; Mon-Clair
Grain and Supply Co., 131 NLRB 1096, 1099. The record does not show that any
of the,five here involved had any such reasonable expectancy of forthcoming per-
manent employment. They are therefore excluded from the bargaining unit.
4. Conclusions respecting the number in the bargaining unit
The voting eligibility list submitted by Respondent prior to the election named
328 employees in the unit which the Union had claimed as appropriate. It was
agreed by all the parties at the hearing in this case that the number in the unit
included at least these 328, plus 2 other employees, A. E. Couture and Sim R.
Gray, whose names were inadvertently omitted from the list. To this number
should be added one leadman, Wheelock, and the six trainees. There accordingly
were 337 employees in the appropriate bargaining unit on August 14 and 17, 1962.
C. The Union, after obtaining union authorization cards from q majority of the
employees in the bargaining unit, requests recognition and bargaining; Respondent
refuses
It is undisputed that 198 of Respondent's 337 employees in the unit found appro-
priate signed union authorization cards prior to August 14, 1962. Except for the
card of Edwin Rash, which was signed on May 31, 1962, all were signed between
June 14 and August 14.7
On August 14, the Union sent Respondent a letter, which Respondent received
on that date, notifying Respondent that a majority of its hourly rated production
5 These six are Gordon W. Robertson, Warren W. Munford, Frank R. LeBlanc, Jr.,
Ivan R. Larabee, James W. Buss, and Michael J. Young. None of these were included on
the voting eligibility list.
6 McGrotty had signed a union card on June 27, 1962, but his name does not appear
on the voting eligibility list.
7 One card, that of Leonard Cleveland, is incorrectly dated August 16. Since this card
was among those mailed to the Union's regional office in Boston on August 14, it was
obviously signed on or before the latter date, as Respondent conceded in its brief.
BRYANT CHUCKING GRINDER COMPANY 1539
and maintenance employees had authorized the Union to represent them and
requesting Respondent to recognize the Union and arrange for an early bargain-
ing conference (General Counsel's Exhibit 200). On the same day, the Union
mailed to its Boston office. 203 signed union authorization cards with a covering
letter stating that it would probably want to file a representation petition on
Thursday, August 16, but would call on that date to give final instructions (General
Counsel's Exhibits 215 and 216). When, by August 16, the Union had received
no reply to its August 14 letter to-Respondent, it instructed its Boston office to file
a representation petition and this was done .8 On the same day it issued a news
leaflet, informing the employees that it had filed the representation petition (Gen-
eral Counsel's Exhibit 240). On the following day Respondent received a copy of
the representation petition from the Board's Regional Office in Boston.
Respondent replied to the Union's bargaining request by letter dated August 17.
In declining the Union's request for a meeting, Respondent explained (General
Counsel's Exhibit 201) :
Our Company has a very definite policy with respect to its employees, which
precludes the recognition of the representation rights of any union organiza-
tion unless said organization has been certified as the collective bargaining
agent by proper National Labor Relations Board procedures, which show that
such organization truly represents a majority of our employees.
Because of this, we cannot consider any request to meet with your Union.
D. Respondent's campaign to defeat the Union;
the alleged 8(a) (1) violations
The Union began its 1962 campaign to organize Respondent's employees about
May and, as already noted, had signed up a substantial majority of those employ-
ees by August 14.9 On August 17, the date on which Respondent mailed to the
Union its letter declining to recognize or bargain with the Union in the absence of
a Board certification, Respondent sent to each of its employees a copy of this let-
ter along with a covering letter in which it clearly disclosed its opposition to the
Union (General Counsel's Exhibit 214). Between that date and the election, both
Respondent and the Union deluged the employees with leaflets, letters, or other
written communications, giving their respective views, arguments, and opinions
with respect to the employees' need for representation by the Union Respondent's
written communications to its employees, although expressing strong criticism of
and opposition to the Union, are not, except to the extent specifically mentioned
below, alleged to be unlawful. Respondent's top management representatives also
during the preelection period distributed to its supervisory staff memoranda explain-
ing its position in regard to the Union and advising those supervisors of factual
data which could be used in combating the union campaign propaganda The
written communications by management, as well as those by the Union, will be
referred to hereinafter where relevant to explain Respondent's conduct which is
alleged to be unlawful.
There is summarized below the conduct alleged to be in violation of Section
8(a)(1) of the Act.
1. Respondent 's interrogation of its employees
a. Interrogation by Foreman Barber 'at merit rating interviews
According to the credited testimony of Foreman Barber, it was customary for
Respondent's foremen to review the work of each of their employees every 6
months, to rate each, and to grant him a merit increase if the foremen, with the
approval of Respondent's personnel department and the superintendent, felt that
such increase was warranted. This practice had started in the month of June
'A National Labor Relations Board stamp on the reverse side of the Union's list of
203 employees who had signed cards shows that it was received by the Regional Office
at 1 16 p m. on August 16 ( General Counsel 's Exhibit 216). This would indicate that the
representation petition was filed at about that time.
9 The Union had theretofore organized the employees and had been certified as their
representative in 1944 , but had ceased to represent them after about 1 year . Thereafter,
it had intervened in a representation proceeding initiated by the United Steelworkers in
1959 and both unions were rejected at the polls. Board records show that the Steelworkers
also petitioned for and lost an election in 1956.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and had been in effect for a number of years. The merit rating reviews of the more
senior employees therefore occurred in June and December, and those for the
other employees occurred 6 months from whatever date-they were hired. After the
merit rating has been approved, the foreman has a merit rating interview with the
employee whose wages and work have been reviewed. This interview usually occurs
soon after the merit rating is made and, in any event, it occurs prior to the time
for another merit review. It is conducted in Respondent's personnel office or in an
anteroom thereto where the employee and supervisor may talk in privacy. At the
interview the merit rating sheet is discussed and is signed by the employee. It has
been Foreman Barber's practice to follow the merit rating interview with a discus-
sion, about how to improve conditions for the employee and his department and
how to help get more production for Respondent.
During the latter part of August and in early September 1962, Barber conducted
merit rating interviews with about 30 of the approximately 35 or 40 employees
under him. He had never before conducted so many interviews within so short a.
period. This large accumulation of merit rated employees awaiting their interviews
was occasioned by the fact that Barber's assistant foreman had been out all sum-
mer and his leadman had taken all his vacation at one time. When the leadman
returned, Barber, with the approval of Assistant Personnel Manager Converse, con-
ducted all of the interviews within a period of a few days.
,Barber explained that prior to conducting these interviews he felt that he must
have been remiss in his duties toward his employees by not ascertaining and reme-
dying their "gripes"; "otherwise they wouldn't have wanted any other representa-
tion." He accordingly determined to, and did, ask each of the approximately 30
employees he interviewed what the employee believed the Union could do for him
that Respondent could not do directly.'° Some of the employees told him why
they thought a union was needed in the plant and, as to them, Barber acknowledged
that he. assumed they were for the Union; other employees told him they knew of
nothing the Union could do; and still others stated that they would rather not dis-
cuss the matter. In this manner Barber was able not only to ascertain which of his
employees were probably for and which were against the Union, but was also
able to ascertain what complaints some of them had which might have caused
them to designate the Union to represent them. At these interviews, according to
Barber, it was, generally understood that he would try to do something about the
complaints. This latter aspect of the interviews will be discussed infra, under the
heading "The Complaint Procedure."
b. Interrogation by Machining Superintendent Clayton F. Lester
Employee Craig W. Stephens testified that during September, he was told by
his foreman,` Ray LeMere, that Superintendent Lester wanted to see him in the
plant conference room. LeMere accompanied Stephens to the interview with Les-
ter. Stephens gave the following account of what took place:
Mr. Lester asked me if I was dissatisfied with the company or my foreman;
what, they done wrong to displease me or anything like that, and if I thought
that I could benefit in some way by the union that I couldn't settle with the
company any difference or grievances I had. And I told them I had no gripes
against the company or Mr. Lemire [sic]; that I had my reasons for feeling
the way I did about the union and I had nothing personal against the com-
pany''or Mr."Lemire [sic] or anyone involved; and we went to talking about
unionization in general. He asked me if I thought that Bryant was that badly
in need of a union. I told him no. I told him I didn't think it was drastically
needed; ,I knew of places that needed one worse. And he reviewed my wage
increase. I had in a year, I guess, 11 months that I had been working there....
The end 'of the conversation he asked me something about if my mind was
closed or something strongly one way or the other; . [Q. If your mind
was closed about what?] The Union, the way I felt. I told him my mind was
10 Several of the employees, Miles, Tillson, and Hussey, testified-but Barber denied-
that he also made a statement to the effect that "the Company" wanted to know what the
men expected to gain by having a union and that be had to ask this question of all his
employees I find it unnecessary to resolve this conflict. Since, as Respondent concedes,
Barber was a supervisor within the meaning of the Act, his conduct is attributable to
Respondent regardless of whether he was acting pursuant to instructions from higher
management representatives, for lie was acting within the scope of his apparent authority.
BRYANT CHUCKING GRINDER 'COMPANY - - 1541
open on it; I was open for argument for me to decide and I intend to remain
that way . He said he was very glad that I felt this way. He said that if
everyone felt that way, he believed that the. company would be in good, hands
or very well off, something to that effect . . . . .[Q. Did Mr. Lester say to you
what do you have to gain by being in the Union?) He asked me in the begin-
ning what I thought I had to gain by the union that I couldn't get the benefit
without the union. And I told him that I thought matters like wages and
working conditions, that organized workers were much better off than
unorganized.
The whole conversation, according to Stephens, was about the Union and lasted
about an hour and a half.
Superintendent Lester testified about ' an interview he had with Stephens on or
about September 10 or 11 when the hearing in the representation case, (Case 1-RC-
7067) was in progress. Lester's account .is' so different from that of Stephens that
it is difficult to determine whether both witnesses were testifying about the same
interview. According to Lester, while in attendance at the representation hearing,
he saw the Union's attorney reading a job description from a pamphlet or book
which Lester recognized as one normally chained to a post near Foreman LeMere's
desk, and believing that the pamphlet' had been impropeily removed from its place,
he had consulted Foreman LeMere about it. LeMere could not explain its disap-
pearance and Lester thereupon decided to question Stephens about the matter since
Stephens worked nearer to LeMere's desk than did any other- employee on that
shift." Lester testified that he questioned not only Stephens but' all the other
employees in the area about the job description pamphlet. -Regarding his interview
with Stephens, he testified as follows.
Well, before calling him into the hearing room I had pulled his personnel rec-
ords because again he was an employee who had but recently been promoted
to that job from a heat treater job and he would be due for a merit rating,- I
believe, it was in October. He had been promoted to this job'of receiving
clerk about the middle of June . So while I was talking to him about
the book . I asked him about the job, how he liked it, what- problems he
had, on the job, and discussions, all those matters that we discussed prior to a
merit rating. [Q. Now, do you recall whether Mr. Stephens said anything about
having any problems?] Well, as I remember, he said something but they
were just the everyday problems that were going on in the shop 'at the'time,
at that time, with all the agitation due to the union drive. [Q. Was anything
else said about the Union?] I recalled that during the course of- this discus-
sion, I think the whole thing lasted less than 15 or 20 minutes, that-he men-
tioned that he was pro-union, that he had always been.a strong-union sup-
porter because his father had always been a strong supporter and he had been
brought up that way. [Q. Did you ask him whether he supported theUnion
or not?] No . . . [Q. Did you know at that time whether prior to that con-
versation he was a union supporter?] No, I didn't. [Q. Well, do you recall
anything else that was said in the conversation?) No, only that he denied
taking the book which I accepted, and I asked him if he had seen anyone
take the book and he said no, so that matter was dropped.
Lester denied that during the conversation he asked Stephens whether his mind
was closed on the subject of unions and stated that he attempted to avoid men-
tioning the word union during the preelection campaign.
From my observation of them at the hearing, as well as from an analysis of
their entire testimony, I regard Stephens as a more forthright and reliable witness
than Lester. I have no doubt that Lester may have inquired of Stephens and other
employees about the missing job descriptions, as he testified, but find it unneces-
sary to decide whether his inquiry of Stephens took place at the meeting about
which Stephens testified or on some other occasion. Stephens testified early in the
UAt the hearing in this case, Respondent's chief counsel, McGuiness, conceded that
Respondent's attorney, Gannon, had supplied the Union's attorney with certain job descrip-
tions at the representation hearing The transcript of the hearing in the representation
proceeding (pages 78 and 179) bears this out At the representation hearing the, Hearing
'Officer granted the General Counsel's request to substitute photo copies of the original
records so that the originals could he returned to the Company Lester, apparently
unaware that Respondent itself had furnished the lob de,criptionr, mistakenly believed
that they had been purloined
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing and Lester on the last day of the hearing . Stephens , although purporting to-
testify to all he . remembered about the interview , was not asked whether anything
was said about the missing job descriptions and I do not regard his failure to
recall that subject-even if it was mentioned at the interview-as reflecting on his
credibility as to the matters about which he did testify . I find that Stephens ' account
of his interview with Lester insofar as it related to his work and the Union was
'substantially, accurate.
c..Interrogation by Foreman Rice
During the latter part of August , according to the credited testimony of employee
James O. Tosee ; his foreman , Rice ; came to his machine and asked , "I think you
signed the union card , haven't you ?" Losee did not answer at first but when Rice
repeated the question , Losee replied , "I don 't believe that is any of your business."
Rice asked the question once again but left when Losee "clammed up."
I also credit the testimony of employee Allen Brown that in October, 2 or 3
weeks before the election , Foreman Rice came to his machine while he was work-
ing and sought to engage him in conversation about the Union . He commenced by
asking Brown whether he had signed a union card and when Brown said that he
did not have to tell Rice , the latter replied that for every good reason Brown
could give him in favor of the Union , Rice could give him other reasons that were
not so good.
Foreman Rice categorically denied that he ever asked any employee whether he
signed a union card or whether he was for or against the Union , but I do not
find his denials convincing.12
d. Interrogation by Foreman Ray LeMere
Based upon uncontroverted testimony , it is found that Foreman Ray LeMere
engaged in the following acts of interrogation : At sometime between August 14
and November 1, while in the steelroom , he asked employees Arthur Converse
and Lawrence M. Neilson , Jr., what they thought the Union could do for them.
Converse did not reply but Neilson answered the question by stating that he was
for the Union and telling why. LeMere is Neilson 's uncle and in prior conversa-
tions outside the shop , Neilson had let his uncle know that he was in favor of the
Union . In September , LeMere approached another employee in his department,
Frederick Stocker, and after stating that he knew Stocker was for the Union, asked
him what the Union could do for him that the Company could not. Sometime in
October , LeMere asked employee Frank Ripchick whether he thought the Union
was going to get into the shop . When Ripchick reported that he did not know,
LeMere asked for his opinion about the matter . Ripchick replied that he did not
expect any gold mine from the Union if it got in , but he liked to see the people
united.
e. Interrogation by Foreman Alfred J. Belaire
Based upon uncontroverted testimony , it is found that Foreman Belaire engaged
in the following acts of interrogation : Sometime in October , Belaire came to the
machine where employee Elden T. Bedell was working and, after first talking to him
about the job he was doing, asked him how he thought the election was coming out.
Bedell replied that he did not know and "would rather not discuss the situation any
more." During the first part of October , Belaire called another employee , Wayne O.
Bashaw, to the personnel office for a merit interview and following the interview,
asked Bashaw what he thought about the Union and whether he thought it "was
going to get in at Bryant 's." Bashaw replied that he "didn 't know but it looked
pretty good ." As,Bashaw,, left.,the office ,, ^Belaire told him, "You better think it
over; you make your decision ." Later in October, Belaire came to Bashaw and
expressed surprise at seeing his name listed on a union bulletin as being a mem-
ber of the Union 's organizing committee.
12There is also testimony by employee Clarence Ellis that Rice " indirectly" inquired
about how he felt about the Union , but Ellis appeared reluctant to testify and the testi-
mony he gave was too vague and indefinite to warrant a finding that Rice unlawfully
interrogated him.
BRYANT CHUCKING GRINDER COMPANY 1543
f. Interrogation by Foreman Arthur Caron
According to the uncontroverted and credited testimony of employee William H.
Cordle, his foreman, Arthur Caron, came to where he was working near the
steelroom in late July or early August , and asked if Cordle could spare a moment
to talk with him. Cordle then went with Caron to a quieter place in the steel-
room and Caron asked him whether he had signed a union card. Cordle replied
that he had. Caron thereupon asked, "Couldn't you have come to me if you
had any grievance?" Cordle responded, "Well, I thought that I needed represen-
tation in any grievances I had , so I signed a union card ." Cordle had worked
under Caron since 1955 and Caron had never before asked him about any
grievance either at merit rating interviews or upon any other occasions.
g. Interrogation by Foreman Gilbert Rooney
Sometime in September , according to the uncontroverted and credited testimony
of employee Terry J. Robb, his foreman, Gilbert Rooney, during the course of a
casual conversation at Robb's work station , remarked that he planned to ask all
the employees in his department how they felt about the Union. He then asked
Robb how he felt about it and Robb replied that he "felt the Union was going to
be a good thing, that he was in favor of it and was going to vote for it."
Conclusions With Respect to the Acts of Interrogation
Interrogation of employees by their employer about union matters is not per se
a violation of the Act. Whether it tends to interfere with , restrain, or coerce
employees in their organizational rights depends on the facts of each case, but the
Board and the courts have delineated certain factors which should be considered.
In a recent case, Cannon Electric Company, 151 NLRB 1465, the Board discussed
some of these factors which it considered relevant , particularly those referred to
in Bourne v. N.L.R.B., 332 F.2d 47, 48 (C.A. 2). It stated:
With a caveat that we consider these factors tentative only and not of gen-
eral applicability , we shall apply the Bourne factors in the present case. The
Bourne factors are : ( 1) the background , particularly as it relates to the
employer's hostility , if any, ( 2) the nature of the information sought,
especially where it appears designed to permit ascertainment of the identity
of the employees and their support of the Union , ( 3) the identity of the
questioner , ( 4) the place and method of interrogation , and (5 ) the truth-
fulness of the response.
Viewing the interrogations in this case in the light of the above factors, among
others, it is concluded that such interrogations were of a coercive nature. (1) They
took place against a background of strong antipathy of Respondent toward the
Union which Respondent freely publicized to its employees. ( 2) Most of the
interrogation was directed at ascertaining the union sympathies of the particular
employees interrogated-a type of interrogation almost uniformly condemned by
the Board and courts as coercive . --,although the approach of some of the manage-
ment representatives was indire#1 and subtle-such as the inquiries of Foreman
Barber, Superintendent Lester, and Foreman LeMere, as to what the employees
thought the Union could do for them which the Company could not do directly-
it enabled management no less than by direct questioning to ascertain the union
sympathies of the employees interrogated . At the same time this approach, coupled
with an invitation to the employees to voice their grievances , tended to leave them
with the impression that Respondent was willing to satisfy their grievances as an
inducement for their rejection of the Union as their bargaining representative.
Foreman Barber testified that there was only one complaint which he did not get
settled at the interviews with employees in his department at which he inter-
rogated them in this manner. ( 3) The management representatives engaging in
the interrogation were not leadmen or assistant foremen, those in the lower
supervisory hierarchy , but were the machining superintendent and six of the fore-
men, persons whose authority to speak for management the employees had no rea-
son to doubt. (4) The interrogation , except in a few instances , was not of a casual
nature but was pursuant to a purpose and design by the supervisors to ascertain
the employees ' union sympathies or activities . Many of the employees were
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called from their work stations (by Foremen Barber, Belaire, and Caron, and
Superintendent Lester ), and subjected to this interrogation Another supervisor,
Foreman Rooney , though interrogating employee Robb at his work station,
announced that he planned to ask all the employees in his department how they
felt about the Union . The instances of interrogation were not isolated but were
of a widespread nature. (5) It is not possible to tell from this record the extent to
which employees answered truthfully the questions propounded to them as to their
union membership or sympathies . Most certainly some of them acknowledged
their union sympathies or strongly defended their action in having signed a union
card. But the responses of some others showed an obvious embarrassment at
being singled out and put on the spot in regard to their union views, they declined
to answer the questions put to them or to commit themselves before their
employer in either supporting or condemning the Union . (See, e.g. , the responses
of employees Charles Baker and Elden T. Bedell , and Foreman Barber's testimony
that some employees questioned about what the Union could do for them "said
they would rather not discuss it.")
On the basis of all the evidence and the considerations mentioned above, it is
found that Respondent during the preelection period in 1962 unlawfully inter-
rogated its employees about their union membership and sympathies , in violation
of Section 8(a)(1) of the Act.
2. The threats of reprisal
According to the uncontroverted and credited testimony of employee Wayne
Bashaw, about mid-October , after completing one assignment and asking his fore-
man, Belaire , what to do next, the foreman gave him another assignment and told
Bashaw. "If the Union was in here , we couldn't transfer you to this other
machine, and if work was slack, [we] would have to send [you] home." Bashaw
protested that he had worked in a union shop before and that the employer had
always found work for him , without having to send him home. Shortly thereafter,
when Bashaw was listed on one of the union leaflets as a member of the organiz-
ing committee , Foreman Belaire remarked to him, "I was kind of surprised to
see your name on this committee leaflet, union committee leaflet."
A few hours later, according to Bashaw , Superintendent Lester also came by
Bashaw's machine and remarked that he was surprised to see Bashaw's name on
the union leaflet listing the organizing committee members, and after Bashaw
replied that it was his privilege to be on the committee , Lester asked , "Do you
like your job?"
Lester, although conceding that he had seen the leaflet containing the names of
union organizing committee members, denied that he approached Bashaw and told
him he was surprised to see Bashaw's name listed. Lester testified that although
he did not specifically recall asking Bashaw whether he liked his job, such a
question would not have been unusual for he often asked such a question of new
employees or employees recently transferred to new jobs. He testified that Bashaw
in the first part of June had been transferred from the job of operating a hand
truck to that of operating a machine, and for that reason Lester could have asked
him in mid -October how he liked his job. It seems more than a coincidence, how-
ever, that Lester would have waited over 4 months after Bashaw was transferred
to a different job and would have chosen the very day on which Bashaw's name
was listed on the union leaflet as a union organizer to have asked that question
if in doing so he was motivated solely by an interest in whether Bashaw liked
his "new" job . As already noted, Lester did not impress me as a reliable witness.
On the other hand, I have no reason to doubt Bashaw's testimony and I credit it.
I find that Foreman Belaire by his statement to Bashaw that Respondent could
not transfer him from one job to another when work was slack, as Respondent was
then doing, but would have to send him home instead if the Union succeeded in
organizing the plant , was thereby threatening economic reprisal in the event
Respondent 's employees chose the Union as their bargaining representative and
that this threat was in violation of Section 8(a)(1) of the Act. I further find that
Superintendent Lester's interrogation of Bashaw as to whether he liked his job
after having first told Bashaw that he was surprised to see his name listed on the
union leaflet as a union organizer , amounted to a veiled threat of job reprisal for
his union activities and was also in violation of Section 8(a)(1) of the Act.
I do not, however , regard as unlawful another incident occurring in October in
which Foreman Walter Rice questioned employee Wayne Rowe about how he liked
BRYANT CHUCKING GRINDER COMPANY 1545
his job just after the latter's name had been listed on a union leaflet as a member
of the Union's organizing committee. Rowe had been transferred to the night shift
only a week earlier and had been seething with anger over what he then considered,
but was later persuaded was not, an unfair selection of himself rather than another
employee for transfer. Foreman Rice, when inquiring about whether Rowe liked
his work, did not mention having seen the union leaflet. It was Rowe who asked
his foreman if he was angry because Rowe's name had been listed on the leaflet.
It is a reasonable inference that Foreman Rice sensed Rowe's discontent with his
job and for that reason sought to ascertain the reason for it.
3. The alleged surveillance and conduct designed to give the impression
that Respondent was engaging in surveillance
a. Activities of Edward Wilson
The record contains much evidence which could reasonably have led the
employees to believe that Respondent was engaging in surveillance of their union
meetings and activities and I am convinced that many of the employees in fact
believed this. This belief, it appears, was triggered by the coincidence of two events
at the Union's August 15 meeting-the appearence at that meeting of an employee,
Edward Wilson, who sat alone taking notes and refused, upon request, to reveal
his name to the presiding officer, International Representative Hugh Harley, and
the report to Harley by another employee, Merton Goodell, Sr., just prior to the
meeting, that he and a fellow employee had been engaged by Respondent during
the Union's 1959 campaign to spy on union meetings and report back to manage-
ment.ta Union Representative Harley reported to night shift employees, with whom
he met on August 16, about the conduct of Wilson and about what Goodell had
told him of his 1959 surveillance activities.
Although producing no direct evidence that Wilson was acting as an agent of
Respondent, the General Counsel argues that an inference should be drawn to that
effect from Wilson's conduct at the August 15 meeting as well as from the addi-
tional evidence regarding Wilson's antiunion activities. In mid-October, Wilson told
employee Floyd Stowell that he thought it would be a good idea to send question-
naires to employees of Jones & Lamson (an organized plant located across the street
from the Bryant plant and hereinafter referred to as J & L), inquiring of those
employees as to whether if they had another chance to choose the union they would
do so again, but Wilson added that he did not know whether "the company" would
go along with that idea.14 On another occasion Wilson told employee Hussey
that the Company had asked him to find out how the fellows felt about the Union,
then asked Hussey if he had any gripes and wrote them down on a piece of paper.15
On still another occasion, he borrowed from Foreman Massey a copy of what
purported to be an unsigned letter, postmarked October 27, from an employee
of J & L expressing dissatisfaction with the union at that plant, had the letter
reproduced and distributed copies of it to Respondent's employees (General Coun-
sel's Exhibit 272). Wilson also passed out other antiunion pamphlets to the employ-
ees (General Counsel's Exhibits 325 to 329).
Wilson's position as test floor operator required him to move around the plant
to get parts to be used in assembling and testing the machines on the test floor and
he frequently had reason to be away from the test floor. He often talked to
employees in and out of his department in an attempt to enlist them in his anti-
union campaign . Wilson may well have been absent from the test floor more than
other employees doing the same type of work and may also have spent more time
than other such employees in talking to fellow employees, as the testimony of
13 The General Counsel offered to prove by Goodell that what he reported to Harley
had in fact occurred in 1959, but this proffer was rejected since proof of such conduct
in 1959 could not constitute evidence that Respondent was doing the same thing in 1962.
14 This finding is based upon the credited testimony of Stowell, corroborated by that
of Wilson. Wilson, however, testified that he was referiing to J & L when he questioned
whether "the company" would go along with the idea
15 This finding is based upon Hussey's credited testimony I do not credit Wilson's
denial that he told Hussey that management asked him to find out how the employees
felt about the Union. Although testifying that lie could not recall whether he had inter-
rogated Hussey about his gripes and written them down, he did not deny doing so. He
testified, however, that he did not in fact transmit any such gripes to management.
-1546 DECISIONS OF NATIONAL LABOR • RELATIONS BOARD
Ronald Hussey, Robert Burbank, and Emmett Gavin would indicate, but I am not
convinced that such absences and talking were so extensive as necessarily to have
come to the attention of management. Foreman Massey, upon one occasion, broke
-up a conversation between Wilson and prounion employee Gavin.
Wilson denied that he was acting at the request of management in any of the
things he did or that he informed management of what he learned. He stated that
he attended the union meeting merely as an observer and took notes on what was
said, as is his custom when attending any meeting, and that he threw the notes
away on the day after the meeting he attended. He testified that he had not made
up his mind when he went to the meeting whether he was for or against the Union
but that he was irritated by a threat to throw him out of the meeting; accordingly,
after reporting to some of his fellow employees on the test floor what went on at
the union meeting, he and about five other employees decided to form an antiunion
group to combat the Union. With the assistance of the junior chamber of com-
merce, whose president was an employee of Respondent, and of a local printer
who did work for them without charge, the group published and distributed to the
employees a number of antiunion leaflets. In regard to the unsigned letter which
he borrowed from Foreman Massey and had reproduced and distributed to the
employees, he explained that he had heard some of the employees talking about
it, decided to borrow it and reproduce it in connection with his antiunion campaign.
and that he punched out on his timecard when leaving the plant during working
hours for this purpose.16
In view of Wilson's unusual conduct, especially that of taking notes at the
August 15 union meeting and refusing to reveal his name , his statement to Hussey
that management had asked him to find out how the fellows felt about the Union
and his solicitation of gripes, it is understandable that employees believed he was
acting as an agent of Respondent in keeping the Union's activities under surveil-
lance and in thereafter conducting his antiunion campaign. Indeed, he may well
have purposely sought to give the employees that impression. Nevertheless, I do
not believe, in view of the denials of Wilson and of Respondent that he was acting
as an agent of management, that any such finding would be warranted. Such a
finding would be based merely on suspicion. Accordingly, no unfair labor practice
finding is made on the basis of Wilson's activities.
b. Conduct of Foreman Massey
It is also alleged by the General Counsel that Foreman Massey made several
statements which gave the impression that employees were kept under surveillance.
One employee, Hollis Sherer, testified that upon one occasion, in September, his
foreman, Massey, remarked to him that he -knew which men in his department were
for the Union. On another occasion in September, Massey sent a letter to the
editor of the local weekly newspaper in which he referred to a prior letter to the
editor purportedly written by five unnamed Brant eymployees and stated in his
letter that "the grapevine in the plant" had informed him what to look forward to
and by whom before the letter by the five employees was printed.
Foreman Massey testified that he had never discussed his letter to the editor
with any member of management and that by "grapevine" he was referring to
rumors in the plant. He further testified that he never told Sherer he was sure
about any men belonging to' the Union.'He explained that he had learned from
some of the union pamphlets, including the one containing the pictures and names
of some members of the organizing committee, about the union sympathies of
some of the men and that when he showed employees the unsigned letter from
what purported to be a J & L employee, some of them expressed approval of it
while others paid no attention to it, but that the employees did not give him much
information about their union sympathies. Massey was frankly seeking to wage an
antiunion campaign prior to the election. I am convinced' that employees in his
department, which included union leader Emmett Gavin, talked rather frankly about
the union campaign.' In these circumstances, it would seem unrealistic to character-
ize Massey's exaggerated statements about knowing how his employees stood in
Ie Foreman Massey, a frankly antiunion witness, corroborated Wilson's testimony in
this respect. Massey testified that he had no idea of the identity of the person purporting
to send the letter. He explained that he showed the letter to a number of the employees,
left it on his desk where other employees could 'read it, and as happy to loan it to Wilson
BRYANT CHUCKING GRINDER COMPANY 1547
-regard to the Union and about learning in advance through "the grapevine" what
to look for from the unnamed five Bryant employees as reasonably designed to
give the impression that he was engaged,in surveillance. I find that a preponder-
ance of the credible evidence does not support this allegation as to Massey.
c. Conduct of Foreman, Rice
In further support of the allegation that Respondent was seeking to engage'inlor
create the impression that it was engaging in surveillance of union meetings, is
the testimony of employee Richard Hendee that sometime in about mid-August,
his foreman, Rice, asked him whether he was going to the union meeting or going
to the meeting to get some free beer. When Hendee replied that he was, Rice
asked, "Can I talk to you afterwards?" Hendee replied in the affirmative. At the
conclusion of the union meeting, Hendee told Union Representative Harley that
Rice had requested him to attend and report on the meeting.17 On the following
morning, according to Hendee, Rice approached him at his work and asked him
whether he had attended the meeting. Hendee replied in the affirmative and
although Rice stood silent for a few minutes and watched Hendee work, Hendee
did not discuss the meeting. Rice's version is that one night when he asked Hen-
dee to work overtime, Hendee refused, explaining that it was hot and he was going
to the union meeting to get some free beer. Rice testified that he could not recall
any further discussion of the union meeting after that and that he never asked
Hendee to attend and report on any union meeting.
I am convinced, as Hendee testified, that Rice did ask him whether he was going
to attend the union meeting and did indicate to Hendee that he wished to talk to
Hendee later; otherwise, it seems unlikely that Hendee would have reported to
Union Representative Harley at the meeting that he had been asked to spy on the
meeting. I am not convinced , however, that Rice in fact intended to ask him to spy
on the meeting or that he asked Hendee on the following day whether he had
attended. I think it more likely that Rice was merely interested in ascertaining
whether Hendee intended to go to the meeting in order to learn whether he would
be available for overtime work that night, and that his reference to wanting to
talk to him afterward related to Hendee's availability for overtime work on the
following night if needed. But for Wilson's appearance at the union meeting on
August 15 under suspicious circumstances, and Merton Goodell, Sr.'s statement
to Union Representative Harley that he had engaged in surveillance for Respondent
in 1959, I doubt that Hendee would have placed the interpretation he did upon
the inquiry and statements by Foreman Rice.
The General Counsel alleges that Foreman Rice, on another occasion in Sep-
tember or October, again gave the impression that Respondent was engaging in
surveillance of union meetings. This charge arose out of the following circum-
stances. Employee Merton Goodell, Jr., announced at a union meeting during
which rates were being discussed, what he believed to be Respondent's starting
wage; new employee, Green, who was present, told those at the meeting that he was
being paid 20 cents less than what was supposed to be Respondent's start-
ing wage; he later complained to his leadman and Foreman Rice; Rice investi-
gated, found that Green was erroneously receiving 20 cents less than Respond-
ent's starting rate, corrected the error, then sought Goodell, Junior. He told
Goodell, Junior, "I understand you are telling the wage rate around." Goodell,
Junior, at first denied the charge, then admitted that he had discussed the
rate at the union meeting. Rice then told Goodell, Junior, that he, Rice, would
take care of rate increases and he did not think it was any of Goodell, Junior's
business. Goodell, Junior, learned shortly thereafter that Green had told Rice about
what had happened at the union meeting.
Without passing on the legality of Rice's conduct in reprimanding Goodell,
Junior, for disclosing Respondent's starting rate at the union meeting, a right
clearly protected under Section 7 of the Act,18 it is sufficient to say that the record
does.not sustain the allegation of the complaint that such conduct was designed to
give the impression that Respondent was keeping the meeting under surveillance.
11 Hendee's testimony in this respect is corroborated by that of Harley.
"This conduct was not alleged in the complaint to be an unfair labor practice and it
may not have been fully litigated.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The alleged promises of benefits and granting of benefits
a. The alleged benefits relating to satisfaction of employee complaints
(1) The complaint procedure in effect in 1962
The Employee Handbook in effect in 1962 describes a "Complaint Procedure"
consisting of four steps (General Counsel's Exhibit 207). Step 1 provides that if
an employee has a complaint , he should talk it over with his immediate super-
visor . Step 2 provides that if the complaint is not settled to the employee's satisfaction
in step 1, it is mandatory for the supervisor to present to his division head a
written statement of the issues , his decision and the reasons for his decision, and
that it is then mandatory for the division head to meet with the employee alone
and attempt to settle the complaint. Step 3 provides that if the division head is
unable to settle the complaint to the satisfaction of the employee , it is mandatory
for the complaint to be referred to a complaint committee to be composed of the
personnel manager, who acts as chairman , and two members of Bryant personnel
to be chosen by the employee, one of whom must be from outside the employee's
department. If the complaint committee cannot arrive at a unanimous decision,
the complaint is referred to the general manager-which is the fourth step-and
the general manager 's decision is final.10
(2) The alleged grant and promise of benefits by Foreman Barber
Foreman Barbel, in his late August and early September merit rating interviews
already described, did not purport to act pursuant to Respondent 's complaint pro-
cedures in soliciting the employees under him to tell him about any gripes they
might have,20 but his action in soliciting complaints from the employees he inter-
viewed as pait of his interrogation of them as to what they thought the Union
could do for them that the Company could not do directly, enabled him to assure
those having complaints that their complaints would be taken care of without the
necessity of union intervention . It is the General Counsel's theory that Barber was
thus instituting a new or revised complaint procedure , thereby granting the employ-
ees a benefit which they did not theretofore enjoy in order to discourage their
interest in the Union.
Thus, it was shown that Barber, through questioning Ronald Hussey, learned that
Hussey thought Respondent should have a separate classification for scrapers-
the type of work Hussey was doing-which would entitle Hussey to a higher rate
of pay. Barber explained that Respondent had eliminated this separate classification
when there was very little scraper work to be done but since the amount of that
type of work had increased , Respondent might restore that classification-at least
if more than 50 percent of an employee's day was spent at scraping . He told Hus-
sey that he would see if Respondent "would come up with anything ." According
to Hussey, Barber informed him later, in October, that he had talked with manage-
ment representatives about the scraper classification and that they had agreed that
the rate for scrapers should be nearer the higher classified rate for assemblymen 21
Barber learned from Earl Burbank and from Harlan Miles that they were dis-
satisfied with Respondent 's insurance plan but Barber told them that since that
complaint pertained to the plant as a whole and not just to the assembly floor,
Barber could do nothing about it.
10A revised complaint procedure appears in a new Employee Handbook issued on Febru-
ary 7, 1964 (General Counsel's Exhibit 208) Under the revised procedures, the employee
is permitted , if lie desires, to select two plant employees to help present his complaint
at the first step and neither of these two employees in that or subsequent steps is required
to be from outside the complaining employee ' s department.
20 He testified that he had never used the complaint procedure provided for in the
Employee Handbook and considered that something for the individual to avail himself
of if he wishes.
21 The above findings regarding the merit interview are based upon the testimony of
Barber , corroborated by that of Hussey. Barber denied having a conversation with Hussey
about the matter in October , but I believe his recollection in this respect is less accurate
than that of Hussey , for Hussey 's account is consistent with Barber 's testimony that
another departmental complaint , that of the pipers , "is the only one that I know of that
didn't get more or less settled "
BRYANT CHUCKING GRINDER, COMPANY- 1549
Barber learned from Donald Tillson that he was dissatisfied with overtime
standards. Barber attempted to explain the standards and toward the end of the
interview asked, "Do you feel as strong toward the Union as you did?" Tillson
replied, "I 'have always been a union man and will probably always-be."
From Floyd Stowell and several of the-other pipers Barber learned that they
believed the differential in pay between their classification and the Grade.A bench
and floor classification was unjustified. This complaint had been voiced, by some
employees at their previous merit rating interviews. Barber told them that he had
previously spoken to Works Manager Clark about the matter. After the interview
Barber again spoke to Clark. About 2 weeks later, Barber and Quality • Control
Superintendent Erickson told the four pipers that although Respondent was in the
middle of a union campaign and therefore could make no promises except to look
into the problem, that job differentials had been reviewed in the past and would
continued to be reviewed in the future. About 6 months or a year later, Respondent
-did remedy this complaint 22
Barber testified that his August and September 1962 merit interviews differed
from previous such interviews only in that in August and September, but not
-on previous occasions, he inquired of each employee as to what the employee
believed the Union could do for him which Respondent could not do directly. The
General Counsel, as already noted, takes issue with this statement, contending that
Barber at the interviews was departing from previous practice in giving the employ-
ees a greater opportunity to voice their complaints and to that extent was granting
them a benefit which they did not theretofore have. The General Counsel relies on
the testimony of Ronald Hussey to the effect that Barber did not give him an
opportunity to discuss grievances at the time he was shown his merit-rating sheet
and given a raise at the end of his 90-day probationary period in May 1962. But,
as Barber explained, it was not his practice to afford an opportunity' for a discussion
,of grievances at the probationary rating interviews as distinguished from the regular
,6-month rating interviews. The General Counsel also relies on the following testi-
mony of Harlan Miles:
Then he wanted to know if I had any gripes. I told him my biggest gripe was
that I seemed to be held right in one place with no chance of improvement
for myself. He asked for more gripes, and I asked him, "Such as what?" He
showed me a paper and said, "Well, the pipefitters have made their statement
that they figure their wages should be brought closer in line, with top pay on
assembly." And I didn't do any griping about that. I was even offered the
chance to gripe against my assistant foreman at the time, who was Walter
Kallinen . Now, this really surprised me because a short time before
that Mr. Kallinen and I had words, and I was told at that time he was the
assistant foreman and I should respect him as such, and it didn't make no
difference what he said, that I would go along with it.
Miles testimony, while indicating that Barber was perhaps more solicitous in
learning of Miles' grievances in August 1962 than he had been on previous occa-
sions, cannot reasonably be interpreted as evidence of the institution by Respondent
,of a new or improved complaint procedure or even as a revival of a moribund
procedure. Barber's special diligence in performing his normal duties, as a super-
visor does not warrant a finding that Respondent granted its employees a special
benefit in the form of a new or improved complaint procedure.
(3) Memoranda to supervisors regarding improving and enforcing
complaint procedure
In my view, there is likewise no basis for finding that Respondent granted a
benefit in the form of an improved complaint procedure by thereafter issuing
to its supervisory force written reminders and instructions about utilizing and
improving the complaint procedure. In a memorandum dated September 18, 1962,
issued by Works Manager Clark to all the supervisors, it was stated (General
Counsel's Exhibit 204):
One of the reasons a company without a union is vulnerable in the above
areas is the fact that a union knows something we should all recognize. The
22There is no substantial dispute as to the above findings, which are based upon the
credited testimony of Barber, Hussey, Stowell, and Erickson.
1550 DECISIONS OF NATIONAL LABOR 'RELATIONS -BOARD
average individual in a shop is reluctant to become too conspicuous by per-
sonally pushing his own complaint to a final conclusion. The union accepts
this unpleasant facet of the procedure and becomes conspicuous instead of
the employee. This is what they mean by "representation" and this is why it
has a definite appeal to many employees. It provides someone to argue force-
fully in their behalf.
Our complaint procedure can provide this service for the employee only if
we sincerely want it to, and set ourselves up to accomplish this desire on the
part of management.
. To put the desired strength into our complaint procedure and to make it
as effective as possible, we will do the following:
1. Each supervisor will be alert to complaints from his people. If he can sat-
isfy-the employee verbally at the time of the complaint, naturally he should
do so.
2. If he is unable to satisfy the employee because of existing policies, or for
whatever reason, he must make a note of this complaint and discuss it with his
superintendent.
3. Clayt Lester, Virg Erickson and the writer will set aside a portion of a
day each week for the review of the various complaints that the supervisors.
have had and have been unable to settle. We will discuss each complaint with
each supervisor and determine what course of action is indicated in each case
Our first review will be set up for Friday, September 21st at 9:00 A.M.
Please be prepared to discuss your outstanding problems in this area at that
time.
On 'October 11, in a further memorandum to the supervisors which purported to.
set forth facts the supervisors should know in meeting union campaign statements,
Works Manager Clark stated 'in regard to Respondent's complaint procedure (Gen-
eral Counsel's Exhibit 206) :
If our complaint procedure has failed to satisfy our people, and I believe it has
failed, it can and will be improved, and suggestions from you foremen or any
of your people will certainly be in order. No one should have to pay dues,
for this common sense improvement.
Foreman Barber testified -that he took no., specific, action as a result of these mem-
oranda and there is no evidence that any of the other supervisors did so. There is
no doubt that Respondent's motive in issuing the memoranda was to cause the super-
visors to be more alert in satisfying employee grievances and in that manner give
the employees less reason for wanting a union to handle their grievances, but I
would not find this action to be unlawful interference with the employees' Section
7 rights even if the memoranda had resulted in a more diligent performance by the
supervisors of their duties in this regard.
b. The alleged promise of a better job to employee Cornish
According to the uncontroverted and credited testimony of Floyd E. Cornish, he
was asked by Assistant Personnel Director Converse in October to fill out a register
of skills card wherein the employee lists his qualifications for various types of jobs.
This is normal procedure before any employee is'considered for a higher rated job.
Thereafter, about 2 weeks before the election, Cornish went to the office of Works
Manager Clark and requested a better job.23 Clark promised to give him one, and
although he has been considered for one or more better jobs since then, he had not
at the time of the hearing received one. Cornish already has one of the highest clas-
sifications of jobs at the plant, there being only one or two classifications higher
than his.
Cornish testified that he distributed union leaflets in front of the plant on two
occasions at approximately the time of his interview with Clark, and that his name
and picture thereafter appeared with a list of other union organizers in a union leaf-
let.24 It is the theory of the General Counsel that Clark promised Cornish a better
xv The record does not show whether he was summoned to the office or went there of his
own accord.
21 International Union Representative Harley, however, testified, and I find, that this
union leaflet (General Counsel's Exhibit 271) was distributed in early September, which
would be about a month prior to the incidents described above.
BRYANT CHUCKING GRINDER COMPANY 1551
job at the time he was active in the union campaign in order to cause him to aban-
don his support of the Union. No mention, however, was made of the Union either
at the time Cornish filled out his register of skills card or at the time he was prom-
ised a better job, and I find no basis for concluding that Cornish's union activities
rather than Respondent 's normal operating procedures accounted for the treatment
accorded Cornish.25
c. The promise and grant of increased pension benefits
During the Union 's 1962 organizational campaign , Respondent put into effect, or-
announced that it would put into effect , increased insurance benefits, a general wage
increase , and increased pension benefits . The General Counsel does not' contend that.
Respondent violated the Act by announcing or putting into effect the increased insur-
ance 'benefits, apparently because - this occurred prior to 'the^Unibn's request for rec-
ognition , or by granting the general wage increase , apparently because the Union,
had urged and even challenged Respondent to do so, but he does contend that
Respondent's announcement shortly before the election of substantial improvements
in its pension plan , which were not to take effect until January 1, 1963, was unlaw-
ful interference with the employees ' rights guaranteed under Section 7 of the Act.
Respondent , on the other hand , urges that all the benefits should be considered as a
"wage package" and be treated together in determining whether the announced inten-
tion to improve the pension plan was unlawful. Respondent 's actions in regard to
all these benefits are summarized below.
On July 10, Respondent 's treasurer , Harold A. Bush , sent a letter to all the,
employees announcing and describing a new feature which had been added on Jan-
uary 1 , 1962, to the Total and Permanent Disability Provisions of the Life Insur-
ance portion of Respondent's Group Insurance Plan, and also announcing and
describing certain additional improvements in the Group Insurance Plan which were
to become effective on August 1, 1962 . Respondent also announced in the letter that
it was putting into effect a new Plan of Hospitalization Insurance for retired
employees.
Although the Union had already started its 1962 organizational , campaign and
issued the first of a series of campaign fliers on July 6, Respondent 's announcement
on July 10 of the increased insurance -benefits . appears,unrelated to the campaign and
is not alleged as an unfair labor practice . So far as the record shows, Respondent
took no discernible notice of the Union 's campaign until after August 14 , when the
Union claimed to represent a majority and requested recognition and bargaining.
After that date both the Union and Respondent in their campaign literature made
charges and countercharges each against the other.
Among the charges made by the Union was one that Bryant was not meeting,
competition with other firms in the granting of wage increases . In a leaflet distrib-
uted to the employees on July 20 (General Counsel's Exhibit 233), the Union charges
that Bryant was the only area machine tool plant which had not given a raise in
1962 , and that although Bryant 's story was that it reviewed wages in October, Bry-
ant's past history did not bear out that story. On September 20, the Union distrib-
uted to the employees a copy of its letter of that date to Respondent , charging
Respondent with stalling the election in order to weaken the Union with antiunion
propaganda and merit increases , and asserting that if the Company had agreed to
y There is also testimony by employee Leroy K Warren, who worked in the wheelhead
assembly under Foreman Grethe, that one day during the period when he had been passing
out union leaflets, Foreman Belaire engaged him in a conversation in the aisle outside
Belaire's department. According to Warren, Belaire said that he had thought Warren was
"a pretty level -headed fellow but guessed he was wrong ," since Belaire had seen him passing
out union leaflets and had seen Warren's name on the organizational committee list. They
then engaged in a lengthy conversation about the Union which lasted a half hour or 45.
minutes. Finally, Warren told Belaire that he had to get back to his department and asked
how he should explain his long absence to Foreman Grethe Belaire replied that Warren
should tell his foreman what they had been talking about and that his foreman woult
probably give him a raise. Belaire also suggested that Warren talk to Works Manager
Clark. I do not interpret Belaire's conversation with Warren as other than mere good-
natured banter and argument ; and in view of Warren 's concession on cross-examination-
that he knew the reference to a raise was a joke, I can see no basis for the General Coun-
sel's argument that Belaire 's suggestion that Warren might get a raise amounted to an
illegal promise of benefit to persuade Warren to refrain from engaging in union activities.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an early election, the Union and Company would already be negotiating, inter alia,
a "substantial general wage raise which the Company should have granted months
ago." Finally, on September 28, the Union issued another leaflet (General Counsel's
Exhibit 252), stating, inter alia:
-Monday next is October-time for the general wage increase Bryant talked
about earlier this year. We of the Bryant UE 218 Organizing Committee urge
the Company to grant the raise immediately. There is no excuse for it being
delayed this long-when every other Machine Tool Plant in Vermont gave the
1962 increase earlier in the year.
We think Bryant workers will take the raise and still vote for the Union. That
would put the Company in the position of negotiating a, full set of Bryant
workers contract proposals for wages, insurance, pensions, holidays, vacations,
job protection, etc-on top of the Company raise.
Respondent accepted the Union's challenge and on October 9 announced that it
was granting a 31/2-percent wage increase, effective as of October 15, to each of its
employees. But at the same time Respondent also announced that it was granting
increased benefits in its retirement or pension plan, effective as of January 1, 1963.
This announcement was made by General Manager Leyds in meetings with groups
of the employees, and at the conclusion of each of these meetings, there was handed
to each employee attending, a letter addressed to him personally, informing him of
the exact amount of his hourly increase in pay. The letter also informed him:
Your retirement plan will increase your benefits from $2.40 per month for past
and $2.50 per month for future years of service, to $2:80 per month for past
and future years of service. The improved plan will also provide for an option
to have, your benefits on a joint-survivor basis.
It announced that details of these improvements, which would become effective on
January 1, 1963, would be confirmed by letter shortly. In the same letter Leyds also
referred to the "substantial improvements" in Respondent's insurance program which
had been put into effect on August 1 and labeled all of these benefits as Respond-
ent's "wage package" for the year.
On the following day, October 10, there appeared in the local weekly newspaper,
Springfield Reporter, a full page advertisement placed by Respondent, referring to
"Bryant's $4,300,000 Annual Stake in Springfield" and stating in part (General
.Counsel's Exhibit 213) :
AND, AS OF OCTOBER 15, HERE'S HOW OUR EMPLOYEES WILL
SHARE IN OUR FUTURE PROGRESS:
The Bryant 1962 over-all wage package-wages up 31/2% for weekly sala-
ried and hourly-rated employees.
Generous increases in group insurance (effective August 1, 1962) and pen-
sions (effective January 1, 1963).
Bryant has a big interest in Springfield. Your future is our future. Consider
how Bryant has invested here this year. Then ask yourself, "How much has the
U-E invested?" A vote for Bryant is a vote for your family's security. It didn't
take a union to get where we are, and it won't take one to get where we're
going.
VOTE "NO"-GROW AND GO WITH BRYANT
BRYANT CHUCKING GRINDER CO.
Springfield, Vermont
A few days before the election the employees were again called together in groups
of 30 to 50 each. Respondent's treasurer, Bush, explained to them the improved
retirement benefits-which had theretofore been referred to by Leyds and described
in the October 9 letter to the employees-and also explained to them certain addi-
tional pension plan benefits which Respondent was putting into effect on January 1,
1963. Two days before the election, Bush also prepared and distributed to the
employees a letter dated October 29, which described in detail the pension plan ben-
efits which Leyds had announced on October 9, in addition to the other pension ben-
efits announced later, all of which were to become effective on January 1, 1963
(General Counsel's Exhibit 212).
The record does not support Leyds' contention that on October 9, Respondent, in
accordance with prior practice, was merely announcing and granting to its employ-
ees in a single package its overall cash benefits for the year, which "includes wages,
BRYANT CHUCKING GRINDER COMPANY 1553
hospitalization, insurance, retirement and other fringe benefits." As shown above, it
had already announced and put into effect on August 1, prior to the Union's claim
to bargaining rights, certain insurance benefits; and even after October 9'it announced
that it was putting into effect certain additional retirement plan benefits not there-
tofore mentioned to the employees. Moreover, none of those retirement plan bene-
fits were to become effective until January 1, 1963. In any event, Respondent's label-
ing the retirement plan benefits as a part of the economic package it was granting
for the year 1962 does not immunize Respondent's conduct from the principles nor-
mally applicable to employee benefits granted by an employer during the pendency
of a representation proceeding. Respondent's premature announcement in October,
just a few weeks before the scheduled election, of substantial pension benefits, and
its announcement only a few days before the scheduled election of additional such
benefits, neither of which were to take effect until January 1963, and its advertising
of these benefits in the local newspaper as one of the reasons why the employees
should vote against the Union, were reasonably calculated to affect the outcome of
the election and, under established authority, constituted a violation of Section 8(a)
(1) of the Act. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405.
E. Respondent's 1964 postelection conduct alleged to be in violation of
Section 8(a) (1) of the Act
The complaint in this case was issued on June 10, 1964, and a hearing was
scheduled to commence on July 28. The complaint as amended on the first day of
the hearing alleges that 'Respondent engaged in additional unfair labor practices in
violation of Section &(a)(1) of the Act by certain conduct of its counsel and
officials in connection with the preparation of its defense and the conduct of the
hearing. The General Counsel contends that after the issuance of the complaint,
Respondent sought to deprive employees of vindication by the Board of their right
to engage in activities protected under Section 7 of the Act, and sought otherwise
to interfere with the exercise by employees of those rights: by repeatedly seeking
to implant in the minds of its employees the idea that they had signed union
authorization cards prior to August 14, 1962, solely for the purpose of getting an
election or for some purpose other than that stated on the face of the cards; by
improperly interrogating its employees regarding their union membership, activities,
and desires; _and by interfering with and impeding the agents of the Board in the
performance of their duties by informing the employees that they need not coop-
erate with Board agents during the preheating investigation and during the hear-
ing. The evidence adduced bearing upon these allegations is summarized below
in chronological sequence.
1. Bulletin board notice of June 30 informing employees of Respondent's
awareness of issuance of subpenas
By June 30 , 1964, Respondent was aware of the fact that many of its employees
had been subpenaed to appear and testify at the forthcoming unfair labor practice
hearing, and on that date it posted a notice on its bulletin boards telling the
employees that it was aware of this fact and informing them that it wanted to
scotch rumors that it was responsible for the issuance of any of those subpenas
(General Counsel 's Exhibit 324). The posting of this notice is not alleged in itself
to be an unfair labor practice but is considered relevant in the sequence of evi-
dence described below , particularly to Respondent 's memorandum to its supervisors
regarding employee questions concerning subpenas.
2. Respondent 's July 6 letter to its employees
On July 6, General Manager Bush , with the approval of Respondent 's counsel of
record , sent a letter to each of its employees in which it stated , inter alia (Gen-
eral Counsel 's Exhibit 189) :
These are troubled days for all of us.
In some ways our destiny has been taken from our control and placed in
the hands of Examiners , Boards, and Courts.
Most of us feel the last election by secret ballot had decided an issue among
us, and if men were dissatisfied with the results they could always arrange
another election . Perhaps you signed a card because you believed an election
'was the proper way to decide such matters.
2 5 7-5 51-6 7-v o f 16 0-9 9
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now we are 'told that there will be a Hearing on the fairness of the election.
We are also told a decision could be rendered which would certify the union
which lost the election . This would be resisted by many of us with every
force available to free men.
We are among those who believe that Bryant employees have chosen to
reject a union . . .
Your Company will resist every effort to deny you your free right of choice
as an American citizen.
The General Counsel argues that this letter had the twofold purpose of suggest-
ing to the employees that union representation can be gained only by means of an
election and that the union cards were signed only in order to have an election.
3. Respondent 's bulletin board notice of July 13
On July 13, Respondent posted on its bulletin board the following notice to its
employees signed by General Manager Bush (General Counsel 's Exhibit 190): 26
NOTICE
To All Employees:
As you all know , N.L.R.B. and union representatives are attempting to inter-
view many of you in preparation for the Hearing to be held soon . We have
heard that pressure is being put on some of you to assist these investigators.
We want you to know that it is your privilege to help the N.L.R.B . attorneys
in building a case against the Company. This is your decision to make and the
Company has no desire to interfere.
But you may not have been told, and you are entitled to know , that you
are under no obligation to provide this assistance to the N.L.R.B. and the
union . You do not have to talk with these people during this investigation.
This is your choice as free citizens.
Consider what the N.L.R.B. and union are trying to do here . There has been
a secret ballot election in which a large majority of you voted against the
union . The N.L.R.B. is now joining with the union to force you to accept the
union as your bargaining agent without a secret vote. In other words, the
N.L.R.B. and the union are trying to say that when you signed the union card,
that had the same effect as a secret ballot election.
Compare this with the political election we will all be voting in next Novem-
ber. You may have registered for this election as a Democrat or as a Repub-
lican . You know, however, that you don' t have to make a final decision until
all the issues have been debated and you cast your secret ballot for the man
of your choice. No one will be able to say that, because you registered for
one party, you have to forfeit your vote and automatically take that party's
choice.
The issue in this case is whether people who have signed union cards are
entitled to express their freedom as citizens in a free election . In deciding
whether or not to assist in the investigation , think what our decision will mean
to your own right and the right of your fellow employees to a secret ballot
election.
The General Counsel points out that no evidence was adduced at the hearing to
support the assertion in the first paragraph that pressure was being put on any
employees to assist the Board or Union in investigating the case . He argues that
paragraph 3 served to interfere with and impede agents of the Board in the per-
formance of their duties under the Act in preparing the case for hearing and that
Respondent 's unsolicited advice to employees that they did not have to cooperate
with Board attorneys was also calculated to hinder the General Counsel in his
burden of proving the Union's majority status by having all the card signers appear
as witnesses to authenticate their cards. The General Counsel contends that in
paragraphs 4 and 5 of the notice, Respondent was using the analogy to political
elections in order to suggest to the employees that they could only have signed
28This notice , according to employee Ronald Davis , was still on the bulletin boards on
October 6 , when Davis testified.
BRYANT CHUCKING GRINDER COMPANY 1555
union cards in order to have an election and not to authorize the Union to act as
their bargaining representative as was clearly and concisely stated on the cards
themselves . Finally, the General Counsel contends that in the last paragraph of
the notice , Respondent 's statement that "In deciding whether or not to assist m the
investigation , think what your decision will mean to your own right and the right
of your fellow employees to a secret ballot election," was further calculated to
interfere with statutorily protected employee rights by impeding the Board in its
investigation processes.
4. Respondent 's statements to employees
On July 24, 4 days prior to the opening of the hearing in this case , the hourly
paid employees were assembled at the plant and addressed first by Works Manager
Clark, who introduced Respondent 's six counsel-its three attorneys of record in
this case and three local attorneys-and then by Respondent 's chief counsel,
McGuiness . The latter , according to the credited testimony of Harlan Miles, spoke
from a printed document or something in his hand and made the remark that he
wanted a record of what he was saying . Respondent in its brief states: "It was not
contradicted that McGuiness spoke from a printed document or something in his
hand" and I construe this as an acknowledgment that McGuiness was speaking
from a written text . No such document was offered in evidence , however, and it
has been necessary to rely on the testimony of some of the employees who attended
the meeting in order to ascertain what was said . None of these employees pur-
ported to remember everything that was said ; some testified regarding certain
statements and others testified regarding other parts of the speeches ; still others
purported to remember practically nothing about what was said or could not be
sure whether they heard certain statements from company representatives at the
meeting or from the company letters or bulletin board notices. After carefully
comparing these accounts and partial accounts and weighing the relative reliability
of the various witnesses ( from my impressions of some of them at the hearing as
well as from a consideration of their entire testimony ), it is found that , in sub-
stance, the following occurred.
Works Manager Clark opened the meeting by telling the employees that the
Board hearing in this case was scheduled to start during the following week and
that it was necessary for Respondent to prepare its defense ( testimony of Miles,
Kozak, Godin, and Davidson ). He stated that Respondent was "pretty good" at
making internal grinders in the machine industry but did not feel up to par in
handling legal issues such as those involved in this case and had therefore hired
legal counsel to handle the matter (testimony of Gavin ). He introduced McGuiness,
Respondent 's chief counsel , and the other five counsel who were present . During
the meeting either Clark or McGuiness , or both , stated in substance that Respond-
ent had thought that the question whether the Union would be the employees'
representative was settled sometime ago, but it was to be litigated again and that
it might take 2, 3, or 4 years before the matter went through the courts and was
finally settled ( testimony of Gavin , Miles, and Hoyt ); that Respondent intended
to protect the right of its employees to a free vote (testimony of Gavin, Pomykato,
and Dubanevich ); that some of the employees who had signed a union card may
not have read the "fine print" on the card ( testimony of Miles, Kozak, and David-
son), and may have thought that they were signing only to get an election (testi-
mony of Gavin , Miles, Hoyt, Kozak, and Davidson ), or maybe some were forced
to sign a card (testimony of Gavin ). McGuiness announced that in connection
with preparing Respondent 's defense , each employee, after the meeting , would be
interviewed by company attorneys who would ask them some questions ( testimony
of Kozak , Miles, Gavin , Hoyt, Godin , and Davidson ). He also told the employees:
"We want you to be absolutely sure that nothing we say or do here or in these
interviews will interfere with your right to be for or against the Union; what you
say is entirely voluntary." 27
5. The individual interviews and interrogation of employees by
Respondent's counsel on July 24
For the purpose of having its attorneys interview each employee, Respondent
set up three temporary booths in its old engineering or drafting room and the
n Miles agreed that this statement which McGumess read to him at the hearing was
made by MeGuiness at the meeting.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
six attorneys were divided into three teams of two attorneys each. Starting immedi-
ately after the mass meeting, and continuing throughout the day, employees were
sent to one of these teams of attorneys for an interview. The attorneys, after intro-
ducing themselves to the employee and ascertaining his name and writing it at the
top of a previously prepared questionnaire form, then asked a series of questions
and one of the attorneys wrote the employee's answer after each question. The
questionnaire consisted of two pages. Some of the employees, apparently depending
upon their responses to the questions on the first page, were not asked the ques-
tions appearing on the second page. On the first page appeared the following
(General Counsel's Exhibit 194):
EMPLOYEE QUESTIONNAIRE
The purpose of this interview has already been discussed in the employee
meeting held at the beginning of the shift.
I have a few short questions I would now like to ask if you have no
objection. I am going to write down the substance of your answers and when
we are through we will show them to you to make sure they are correct.
Have you received a subpoena to appear at the coming N.L.R.B. Hearing?
Did you sign a Union card at any time in 1962?
Do you recall the date on which you signed?
Where were you when you signed?
Were others present when you signed?
Did a Company employee give you the card which you signed?
If not, who did?
Were you told that the purpose of signing the card was to get an election?
If so , what was said and by whom?
Were you told at any time that the Union would use your card to establish
a union in the plant without any election?
The second page contained these additional questions:
Was anything said about initiation fees, dues, or assessments when you
signed the card?
If so, what?
Were any threats made to you to get you to sign?
What was said to you or done which caused you to sign?
What was your understanding of the effect of signing the card?
CONCLUDING STATEMENT
We want to be sure our notes accurately reflect what you have told us.
Would you, therefore, please read what we have written and tell us if it is
correct?
Some of the employees interviewed testified that they believed other questions
were asked and it seems likely that in a few instances the employees' responses
probably evoked a few additional questions. However, in general , I am satisfied
that the questions appearing on the form above set forth were the only ones asked.
The General Counsel contends that these questions , like the mass meeting preced-
ing the interviews wherein it was suggested that perhaps the employees did not
read the fine print on the cards and signed only to get an election, went beyond
what was privileged in the preparation of Respondent's defense . He contends that
the question, "Were you told that the purpose of signing the card was to get an
election?" instead of a general inquiry as to what, if anything, was told the
employees about the purpose of signing the cards, was a part of a scheme to influ-
ence the employees' testimony by repeatedly suggesting to them that the purpose
of their signing was to get an election.
6. Respondent's memorandum regarding the effect of Board subpenas
On July 27, the day before the hearing opened, Respondent's personnel director,
Shaw, issued the following notice to all its foremen (General Counsel's Exhibit
320):
NOTICE
To All Foremen:
During the interviews last Friday in preparation for the N.L.R.B. Hearing,
a number of employees asked about the legal effect of the N.L.R.B. subpoenas.
BRYANT CHUCKING GRINDER COMPANY 1557
Because of the difficulty employees have in obtaining correct answers to such
inquiries and because you may be asked similar questions, I have discussed
with our counsel the meaning of subpoenas.
From this discussion it is my understanding that there is no penalty for
refusing to comply with the N.L.R.B. subpoena.
The N.L.R.B. has authority to issue subpoenas requiring the attendance
and testimony of witnesses at an N.L.R.B. Hearing. If the individual sub-
poenaed does not appear as directed, the N.L.R.B. has no power of its own
to force an individual to comply with the subpoena. Instead it must apply to
a District Court of the United States for an order requiring the person sub-
poenaed to appear. The District Court judge has power to issue such an
order but he also has discretion as to whether or not he will do so.
In other words, the effect of the N.L.R.B. subpoena is that it is a formal
direction of an individual to testify at a hearing but it does not have any
binding legal effect until a Federal Judge sees fit to order the individual to
comply. Therefore, no penalty can be imposed on the indiivdual for failure
to appear as ordered in the N.L.R.B. subpoena. A penalty can be applied only
if a court grants the order referred to above and, after that order is served
upon the individual, he continues in his refusal to appear.
If you are questioned by any employee as to the meaning of the subpoena,
it is proper to give them the above information. In doing so, remember that
you have no authority, and should not advise any employee as to whether he
should submit to the N.L.R.B. subpoena.
According to the credited and uncontradicted testimony of employee Arthur
Wright, a few days before he testified on July 30, pursuant to a Board subpena,
he talked to his foreman, Ray LeMere, about whether he would go to the hearing
and asked LeMere what he would do if he were in Wright's place . LeMere there-
upon produced the document described above and told Wright "read it and see."
Wright told LeMere that he was going to show the document to two of his fellow
employees, Fred Stocker and Jim LeMere (a nephew of the foreman), and ask
their opinion about it. Foreman LeMere did not object and Wright, in his fore-
man's presence, did show it to his two fellow employees. After the three employees
discussed the document, Wright announced to them, "I am going to find out for
sure" whether the subpena had to be obeyed. That night Wright telephoned a judge,
who was a friend of his, and asked the latter's advice as to whether the subpena
should, be honored. The judge advised him to obey the subpena. On the following
day Wright reported to Stocker what the judge had said. Stocker corroborated
Wright's account. He testified that after the three employees read the document
furnished by Foreman LeMere, "We were doubtful on the subject . whether
the subpena was good or not" and that after Wright reported back the next day
that his friend, the judge, had said the subpenas "were just as legal as any you
could get," he did appear at the hearing.
According to the uncontradicted testimony of employee Leander Patria, before
he appeared on July 29 to testify pursuant to a subpena, Sam Daniel, the head of
his department, showed Patria, leadman Lillie, and one of the other bosses a letter
which was "something like" the document described above and "said it was up to
us if we wanted to go in. We didn't have to." Patria further testified: "He just
said we could go in. He didn't try to talk us out of going. He just showed us the
letter." The letter, according to Patria, was to the effect "that we didn't have to
appear."
Another employee, Walter Dubanevich, saw the document on the desk of his
foreman, Carl Robins, and read it. The desk is located in the area where the
employees worked 28
Another employee, Frank Pomykato, although he had not personally seen the
document, had heard it talked about at the plant. He had heard that certain fore-
men had copies of it and that any employee could see it by asking his foreman to
show it to him. Pomykato had refused to accept the first two subpenas served on
him. He finally accepted the third subpena. That some other employees knew about
and discussed the document is also apparent from employee Arthur Wright' s testi-
mony that there was some discussion of this letter among the employees and from
employee Gilbert Roy's confused testimony about seeing or hearing about a docu-
ment which described "what rights they had about being subpenaed."
2' Foreman Ted .Hassey testified that he expected employees to read matters left on his
desk and that to be sure they read some things, he has "lots of times" written "Confiden-
tial" on anything he wanted them to read
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that Respondent's conduct in issuing and com-
municating to the employees the contents of the document regarding subpenas-
especially when considered in the light of its June 30 notice that it was not
responsible for issuing any of the subpenas and its letter of July 6 advising employ-
ees that they were under no legal compulsion to cooperate with Board attorneys-
was designed to impede and obstruct the Board in its attempt to obtain testimony
from the approximately 200 employees whom it subpenaed for the purpose of
having,them identify the signatures on their union authorization cards, and that
this conduct constituted a violation of Section 8(a)(1) of the Act.
7. Respondent's "News Brief" posted on its bulletin boards on August 8
On August 8, while the hearing was in progress, Respondent posted on its bulletin
boards, a "News Brief" (General Counsel's Exhibit 210), purporting to bring the
emp.oyees up to date on the progress of the Board hearing and telling the employ-
ees inter alia:
From interviews with employees conducted shortly before the Hearing
while the Company was preparing its defense, many employees stated that
they signed the cards in order to get an election.
The basic issue in the case is the right of the employees to a secret election.
The General Counsel argues that this notice was calculated again to suggest to
the large number of employees who had not yet testified regarding the circum-
stances surrounding the signing of their cards that those cards were signed only to
get an election, and that the notice again repeated the idea that union, representa-
tion can rightfully be established only by means of an election.
8. Respondent's interviews with employees between their
direct and cross-examinations
On July 27, the first day of the hearing in this case, the General Counsel being
unable to obtain a stipulation from Respondent regarding the genuineness of the
signatures on the authorization cards, began calling witnesses for the purpose of
having them identify their signatures on the cards which they had signed. Respond-
ent on that date appealed to the Board from a ruling of the Trial Examiner that
in view of the clear and unambiguous language on the cards themselves, any
defense by Respondent that fraud, misrepresentation, or coercion was used in
obtaining the signatures was an affirmative defense which should be developed by
having Respondent treat the witnesses as its own, rather than by cross-examination.
Between that date and August 4, when the Board reversed the Trial Examiner's
ruling, Respondent cross-examined the witnesses called by the General Counsel to
identify their cards only with respect to matters appearing on the face of the cards.
Thereafter, beginning on August 10, Respondent recalled for cross-examination
those employees who, Respondent's counsel stated, Respondent had some reason
to believe would testify in support of its defense that they signed only to get an
election. Before calling them, one or another of Respondent's counsel conducted
interviews with at least some of them singly or in groups of 6 or 12.
Employees Richard Hall and Sim Gray credibly testified that on August 10 just
prior to appearing at the hearing for cross-examination, they were told by Person-
nel Manager Shaw to go for an interview at the plant with one of Respondent's
counsel and were among about six employees interviewed by McGuiness, that he
apologized to them for having to call them back to the hearing; that he talked
about some of the questions they would be asked, and that among other things
he told them they would be asked whether they had been told that the purpose
of signing the union card was to get an election; and that they were then trans-
ported to the hearing in a company car.
Employees Francis Lynch, Jr., Malcolm Davidson, and Charles Baker were
among a group of about 12 employees interviewed by Respondent's counsel, Petrie,
on August 10. According to Lynch, Petrie went over "some of the questions that
might be asked. He asked us the questions that he asked us before to see if we
felt the same as we did then, if we understood it"; and he put to all the employees
present the question, "Were you told that the purpose of signing the card was to
get an election?" Davidson testified that the employees in the group were given
BRYANT CHUCKING GRINDER COMPANY 1559
copies of their questionnaires which had been filled out on July 24; that Petrie
"would go over a question with one or two of us and the others could listen and
read over theirs and then we'd remember the questions"; and that Petrie asked one
of the employees, "Were you told that the purpose of signing the card was to get
an election?" while Davidson listened. I regard Lynch's and Davidson's accounts
as mutually corroborative and credit both their versions.
C. C. Perry, an employee who, assertedly signed his card after being told that
it would cost him more if he joined later, was interviewed by McGuiness separately
from the other employees before being recalled for cross-examination on Septem-
ber 28, and according to his credited testimony, McGuiness just asked about the
card and whether there was any talk that went on when he signed the card.
Edward Broderick credibly testified that he was interviewed with a group of
other employees by Respondent's attorney, Gannon, before being recalled for
cross-examination on September 28, and that Gannon passed around the questions
and answers given by the employees at their July 24 interviews and asked them to
see if they recognized their questions and answers.29
The General Counsel vigorously protested against this procedure of having
employees interviewed by Respondent between their direct and cross-examination
and moved that the testimony of Hall, the first witness who testified about being
thus interviewed, be stricken. This motion was denied. The General Counsel con-
tends that Respondent, by means of these interviews, was once again implanting
in the minds of the employees the suggestion that they were told that the purpose
of signing their cards was to get an election.
9. Respondent's statements published in,the August 12 "Springfield Reporter"
On August 12, the day after the hearing in this case was temporarily adjourned,
there appeared in quotations in the local weekly newspaper "Springfield Reporter"
what purports to be the respective versions of the Union and Respondent as to
why the hearing was adjourned (General Counsel's Exhibit 331) 30 Respondent
voiced no objection to the introduction of this and did not dispute the accuracy of
the quoted matters attributed to it. In the quoted portion of Respondent's version,
there appears the following statement:
The Company called very few employees until yesterday, when the Company
started presenting its defense . Several employees were called to the stand,
many of them testifying that they had been told the cards were to obtain a
union election and not to bring the Union in without an election.
10. Respondent's August 19 advertisement in the "Springfield Reporter"
On August 19, while the hearing was in recess , Respondent inserted a full page
advertisement in the "Springfield Reporter" published on that date, setting forth
21 The record does not show on what date subsequent to their direct examination Perry
and Broderick were interviewed Although they did not testify on cross-examination until
September 28, I assume that their interviews occurred on or prior to August 11, when the
hearing was recessed until September 28, for on August 11, alter the propriety of such
precross -examination interviews was questioned, Respondent's chief counsel assuied me
that he would not talk to any more of those , being recalled for cross-examination
30The hearing was temporarily adjourned on August 11, for reasons expressed by me at
the hearing, in order to afford the parties an opportunity to file briefs on the question of
the proper procedure to be followed in the development of evidence regarding the circum-
stances surrounding the signing of union ' cards On September 8 I handed down my ruling
that upon a resumption of the hearing the witnesses called for cross-examination regarding
the circumstances surrounding the signing of union cards be accorded an opportunity
(without first being asked the leading question , "Were you told that the purpose of signing
the card was to get an election ") "to tell in their own words the circumstances sur-
rounding the signing of such cards, including what was said at that time, without preju-
dice to the right of the cross-examiner thereafter to employ leading questions if the
witness' recollection appears to have become exhausted, or if the witness should appear
to be biased or unfavorable to Respondent' s case" (General Counsel's Exhibit 1(v)) The
hearing was resumed on September 28.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following "Statement of Principles" which it said it had posted on its bulletin
boards a few weeks earlier (General Counsel's Exhibit 332):
STATEMENT OF PRINCIPLES
On November 1, 1962 a substantial majority of Bryant employees voted in
a secret ballot election and determined that they did not want a union to rep-
resent them . The Union refused to accept the results of this election and has
now joined with the N .L.R.B. in extended legal proceedings against the Bryant
Chucking Grinder Company to force the Union into our plant without an
election.
In view of this action , we wish to state the principles upon which we stand:
1. WE BELIEVE that Bryant employees have a legal right to a secret ballot
election in order to determine whether or not a union will represent them.
2. WE BELIEVE Bryant employees declared on November 1, 1962, by a
majority vote that they did not want a union in our plant.
3. WE BELIEVE that the legal rights of Bryant employees who voted on
November 1•, 1962 would, be violated if the National Labor Relations Board
forced a union into Bryant without a secret ballot election.
4. WE BELIEVE that the legal rights of over one hundred new Bryant employ-
ees who have never had the opportunity to express their choice by secret
ballot would also be violated if the National Labor Relations Board forced'
a union into Bryant without a secret ballot election.
5. WE WILL USE every possible legal means . to protect the rights of all our
employees to a secret ballot election.
6. WE WILL RESPECT the convictions of all employees , and once more we
assure you no employee will receive advantages or suffer disadvantages because
of his convictions:
7. WE ARE ALL STRIVING for an atmosphere of mutual cooperation and
respect in our plant in which free men can work at their best . We will fight
to protect this atmosphere of cooperation and respect.
BRYANT CHUCKING GRINDER COMPANY
Harold A. Bush,
Vice President and General Manager
7/27/64
The General ' Counsel calls attention ' to the fact that Respondent , in the advertise-
ment , fails to mention that the Regional Director' had set aside the election of
November 1, 1962 , because of what he found; to be improper conduct on the part
of Respondent , and that Respondent took no appeal from the Regional Director's
ruling. The, General, Counsel argues that by means of this advertisement Respondent
once again impressed upon potential employee witnesses that union representation
is gained only by an election and that their union cards must have been signed
only for the purpose of getting an election.
11. Respondent's September 25 letter to its employees
On September 25, just 3 days before the hearing was to resume on September 28,
General Manager Bush sent a letter to all of Respondent 's employees in which he
purported, inter alia, to bring the employees up to date on the status of this case
(General Counsel's Exhibit 317). In this letter Respondent told the employees:
On Monday, August 10, the day before the Hearing closed, a few of you
were recalled as witnesses in accordance with the N .L.R.B. Ruling . The testi-
mony that day showed that many employees signed the cards to get an,
election.
* * * * * *
As you well know, I believe you have the right to express your choice about
a union in a secret ballot election . I believe that this whole case is aimed at
taking your right of free choice away from you. As I have said before, we
respect your convictions and we will use all possible legal means to protect
your rights and to avoid any action which would threaten the atmosphere of
cooperation and teamwork prevailing in our plant today.
The General Counsel contends that Respondent by means of this letter was again,
imparting the suggestion that an election is the only proper means of designating'
BRYANT CHUCKING GRINDER COMPANY 1561
-a union as bargaining representative and that the employees must have signed their
-cards solely for the purpose of getting an election.
Conclusions Regarding the Alleged 8(a)(1) Violations in 1964
The -challenged -conduct of Respondent subsequent to the issuance of the com-
plaint on June 10, 1964, has been set 'forth in chronological order so that the
allegations of the complaint may more easily be viewed in their true perspective.
There are three facets of this conduct which the General Counsel alleges to be
unlawful : the interrogation , the suggesting of testimony , and the impeding of
Board agents.
The alleged unlawful interrogation and suggesting of testimony appear closely
related and will be treated as a part of the same type of conduct We start with
the proposition that a -respondent clearly has a right to interview employees and
other prospective witnesses in connection with investigating the allegations against
it and preparing its defense. But, as has been pointed out by the Board and the
-courts many times, this right is not without some restrictions. In the often quoted
language of-the court in Joy Silk Mills v. N.L!R.B., '185 F.2d 732, 743 (C.A.D.C.),
cert. denied 341'U.S. 914, this right is stated 'as follows:
The Board has held that "an employer is privileged -to interview employees
for the purpose of discovering facts within the limits of the issues raised by a
complaint , where the employer, or its counsel does so for the purpose of
preparing its case for trial and does not go beyond the necessities of such
preparation to pry into matters of union membership, to discuss the nature
or extent of union activity, to dissuade employees from joining or remaining
members of a union, or otherwise to interfere with the statutory right to
self-organization." May Department Stores Co., 70 NLRB 94, 95.
Apparently this rule means that an employer may question his employees
in preparation for a hearing but is restricted to questions relevant to the
charges of unfair labor practice and -of sufficient probative value to justify
the risk of intimidation which interrogation as to union matters necessarily
entails; and that even such questions may not be asked where there is pur-
poseful intimidation of employees . Such a standard assumes that interrogation
.of employees concerning their union activities is, of itself, coercive, but that
fairness to the employer 1requires that a limited amount of such questioning
be permitted despite the possible restraint which may result.
It can hardly be said that the subject matter of the questions propounded to the
,employees on July 24 by Respondent 's counsel , and the questions and answers
shown to some of them between their direct and cross-examination, were not
relevant to possible defenses by Respondent to the issue as -to whether the employ-
ees had validly designated' the Union as their bargaining representative on or before
August 14, 1962. It seems obvious that Respondent did not know on July 24
whether it could develop any defenses to the card designations and that the inquir-
ies it then made were in search of defenses. Had these inquiries been phrased so
as to permit the employees to tell in their own words the circumstances surround-
ing the signing of their cards, including what was said at that time, instead of being
phrased so as to suggest initially by a Heading question that the employees may
have been told that the purpose of signing was to get an election, there would
,be less basis for challenging Respondent's interrogation of its employees. The
inclusion of this type of question in the interrogatories, especially in view of
Respondent's previous suggestion in the July 6 4etter to the employees that "per-
•haps you signed a card because you believed an election was the proper way to
decide such matters" and its similar suggestion in the speech of its works manager
-or chief counsel immediately prior to the individual interviews with employees,
apparently forms the principal basis for the charge that the interrogation of employ-
ees on July 24 went beyond what was necessary and proper in preparing for the
hearing.
In any event , the fact that Respondent 's counsel had already obtained answers
to the interrogatories from the employees it interviewed on July 24, furnishes
plausible support for the view that its action in again calling some of them in for
interviews between their direct and cross -examinations and again putting to them
,the question , "Were you told that the purpose of signing the cards was to get an
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election," and showing them their interrogatories from their first interviews, was
not for the purpose of ascertaining information necessary for Respondent's defense.
These second interviews, especially when viewed in the light of Respondent's
bulletin board notice of August 5 which told the employees that many of them
at the first interviews had stated that they signed the cards to get an election-
smack more-of a purpose to impress upon those employees who had not, yet testi-
fied the importance to Respondent of their affirmative answers to that question
than of a purpose to ascertain the true circumstances under which the cards were
signed. This conclusion is fortified by the fact that even after Respondent's counsel,
following vigorous objection by the General Counsel and an expression of concern
by me, promised to discontinue these second interviews, Respondent persisted by
other means to suggest to the employees that the Union could properly be selected
only by means of an election, and that the employees probably signed their union
cards only for. the purpose of getting an election. It did so in its news release of
August 12 wherein it stated that "many" of the employees testifying on August 10
had said "that they had been told the cards were to obtain a union election and
not to bring the Union in without an election"; 31 in its advertisement in the
"Springfield Reporter" on August 19, in which it set forth its "Statement of Princi-
ples" which it had theretofore posted on its bulletin boards at the plant; and in its
letter of September 29 to all its employees in which it again told them that the
testimony of employees on August' 10 showed that "many" employees signed the
cards to get an election and in which it reiterated its view that the employees
were entitled to express their choice in a secret ballot election and that "this whole
case is aimed at taking your right of free choice away from you."
The conduct discussed above is, at the very least, relevant in evaluating the
weight to be given the testimony of employees as to the circumstances surrounding
the signing of their cards, and I have weighed their testimony in the light of this
conduct. Whether such conduct also constitutes a violation of Section 8(a)(1) of
the Act is a more difficult question. As stated by the court in N.L.R.B. v. Guild
Industries Manufacturing Corp., 321 F.2d 108, 113 (C.A. 5):'
A determination as it relates to this conduct must be made within the bounds
of the rule stated in Joy Silk Mills, Inc., supra. Relevant to this determination
is whether or not the questioning fell within the scope of issues then pepding
and was designed to produce probative evidence. Another matter to be con-
sidered is the procedure used. Did it exceed what was necessary to afford the
employer the right to present a defense?
Analyzing Respondent's conduct in the light of these principles, I am con-
strained to conclude that at least its interviews, between their direct and cross-
examinations , of employees whose answers to the questions, propounded to them
on July 24, it had already recorded, and without even according them the option
of declining to be interviewed again , were beyond the pale of privilege and were
in violation of Section 8(a)(1) of the Act. Against the background of Respond-
ent's vigorous opposition to the Union; the avowal during its preelection antiunion
campaign to use "every legal, moral and intelligent means" at its disposal to avoid
dealing with the Union (General Counsel's Exhibit 283); its improper preelection
conduct (herein found to constitute unfair labor practices) resulting in the
Regional Director's setting aside the election; its avowal subsequent to the issuance
of the complaint that it would join others in resisting "with every force available to
free men" any attempt to establish the Union as bargaining representative except
by means of an election (General Counsel's Exhibit 189); and its repeated sug-
gestions to the employees that they may have signed union cards for the purpose
of getting an election, it is a reasonable inference that Respondent's conduct in
summoning some of its employees from their work for second interviews regard-
ffi Five of the thirteen employees cross-examined on that date had answered in the
affirmative to the leading question, "Prior to signing the union card in 1962 were you told
that the purpose of signing the card was to get an election " All five (Morris, Hall, Gray,
Lynch, and Davidson) were among those interviewed by Respondent's counsel, just before
being recalled for cross-examination Practically all employees who were questioned
about the matter on this date, as well as subsequently, testified that they were told neither
that the Union would nor that it would not attempt to use the cards to bring the Union
in without an election
BRYANT CHtiCKINd GRINDER COMPANY 1563
ing the same subject about which they had previously been interviewed, tended to
intimidate and coerce them in the exercise of their Section 7 rights.32
With respect to the allegation that Respondent, through its numerous written
communications to employees and the July 24 interviews and interrogations, sug-
gested testimony to prospective witnesses, and that this conduct constitutes a viola-
tion of the Act, a closer question is presented. It is recognized, as the court stated
in N.L.R.B. v. Katz Drug Co., 207 F.2d 165, 172 (C.A. 8) that:
Of course, no litigant has the right to abuse legal situation and judicial process.
An employer or its counsel cannot, therefore undertake to use a judicial pro-
ceeding and its incidents as a weapon or as a shield for saying and doing
things not reasonably necessary to the effecting of proper disposition of the
justiciable controversy involved, measured by the test of fitting sense of suitor
and counsel responsibility in the immediate situation. And if such extrava-
gances are indulged in, of such a nature as to indicate a designed attempt to
reach into the field of and serve a purpose in relation to the Labor Manage-
ment Relations Act, or as to be capable generally of serving only such a
purpose, the employer's actions in the judicial proceeding are not beyond the
provisions of the Act.
Nevertheless, farm not persuaded that what Respondent did in this respect was
a violation of the `Act. The line to be drawn between the permissible rights of an
employer and its counsel in investigating and defending an unfair labor practice
charge and the rights of employees is a delicate one. Despite the fact that Respond-
ent's much publicized defense that employees may have signed cards solely to get
an election, and its prehearing leading questions in the development of that defense,
may have influenced some of the employees' testimony (and I believe it did),
this conduct, it would seem, should more properly be viewed as relevant to the
weight to be given the testimony than as an interference with the employees'
Section 7 rights., I have no doubt that counsel or other representatives' of the
parties, in the course of preparing for a trial may sometimes employ procedures or
make statements to prospective witnesses which influence their testimony and
which, if brought to light, should he considered by the Trial Examiner or judge in
evaluating the weight of the testimony.33 It is another matter to say that such pro-
cedures or statements are necessarily improper or unlawful.
Let us now turn to the General Counsel's contention that Respondent after the
issuance of the complaint, engaged in conduct which tended to impede the Board's
agents in the investigation of the issues and the conduct of the hearing, and thereby
tended to deprive employees of vindication by the Board of their' statutory rights.
The evidence, in my view, sustains this allegation. After first posting on its bulletin
boards a notice to its employees that it was aware that many of them were being
subpenaed to appear at the forthcoming hearing and informing them that it wanted
to scotch rumors that it was responsible for the issuance of any of these subpenas,
and after letting its employees know in its letter of July 6 that it intended to resist
with every force available what it described as an attempt to take away the employ-
3' In addition to the Joy Silk Mills and Guild Industries cases cited supra , see Sullivan
Surplus Sales , Inc, 152 NLRB 132, Barker's East Main Corp. 142 NLRB 1194, 1201 ;
Neuhoff Bros , 151 NLRB 916 , and Johnnie's Poultry Co . 146 NLRB 770, enforcement
denied 59 LRR\I 2117 (C A 8) And cf Henry I Siegel Co , Inc v N L R B , 3 28 P 2d 25,
27 (C A 2) , N L R B v Lindsay Newspapers , Inc , 315 F 2d 709 710-711 (C A 5) ;
Texas Industries. Inc v NLRB , 336 F 2d 128, 131,-132-134 (CA 5); NLRB v
Winn-Dixie Stores, Inc , 341 F 2d 750, 752-753 (C A 6) : Surprenant Mfg Co v N L R B
341 F 2d 756 , 762-763 (C A. 6).
For example , it was brought out by Respondent ' s counsel in this proceeding that five
of the General Counsel ' s rebuttal witnesses were interviewed by the General Counsel in
a group and I have considered whether the statements of these employees in the presence
of each other may have influenced their respective recollections or thinking in regard to
the matters about which they were questioned I have also taken into consider'ition the
fact that some of these five witnesses as well as many other witnesses called by both sides
during the course of this hearing were sitting in the hearing room and listening to others
testify prior to being called to the witness stand themselves Neither the General Counsel
nor counsel for Respondent desired to invoke the rule for sequestration of witnesses, and
I now regret that I did not , on my own motion , invoke the rule
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees' freedom as American citizens to reject union representation in a secret ballot
election, it posted on its bulletin boards on July 13 the notice with reference to
attempts of Board and union representatives to interview employees. In this notice
it told the employees, inter alia, ". . . you are under no obligation to provide this
assistance to the NLRB and the Union. You do not have to talk with these people
during this investigation . . In deciding whether or not to assist in the investi-
gation, think what your decision will mean to your own right and the right of your
fellow employees to a secret ballot election." Considered in the context of Respond-
ent's other communications to its employees and even in the context of the July 13
bulletin board notice itself, it is a fair inference, and I find, that Respondent, by
the above-quoted statements, was appealing to its employees not to cooperate with
Board agents in their investigation of the issues and their preparation for the hear-
ing. Respondent was thus interfering with the employees' right to utilize the statu-
tory protection of their Section 7 rights without fear of reprisal for giving informa-
tion or testimony adverse to it. This conduct had the tendency to obstruct and
impede the Board in its investigative and trial procedures and to deprive employees
of vindication by the Board of their statutory rights. It was accordingly in violation
of Section 8(a)(1) of the Act. Tertile Workers Union of America, (Personal
Products Corporation), 108 NLRB 743, 749; Alterman Transport Lines, Inc., 127
NLRB 803, 804; Ceitain-Teed Products Coip., 147 NLRB 1517. See also Better
Monkey Grip Co., 115 NLRB 1170, 1171, enfd. 243 F.2d 836 (C.A. 5), cert.
denied 353 U.S. 864.
The same contention might be made with respect to Respondent's issuance of
the memorandum regarding the meaning of Board subpenas, for this memorandum
apparently created confusion in the minds of some of those who saw it as to
whether they were required to obey the subpenas. However, the memorandum,
while perhaps laying an unwarranted stress on the fact that no penalty can be
imposed on an employee who fails to obey the subpena unless and until a court
orders the subpena obeyed, does not, when read in its entirety, appear to have
incorrectly stated the legal effect of such subpenas; it purports on its face to be
presented only for the benefit of those employees who might specifically seek
advice on that subject; and it was not generally circulated or displayed to all the
employees, as was the July 13 bulletin board notice. I note, moreover, that although
Respondent's counsel initially asserted at the hearing that he did not want his
client to be in the position of telling the subpenaed employees to appear at the
hearing as they were needed by the General Counsel as witnesses, he and his client
thereafter cooperated by posting on plant bulletin boards a notice prepared by me
regarding the manner in which the employees were to appear, by thereafter inform-
ing the witnesses when they were needed, and also by stipulating as to the authen-
ticity of signatures on the cards of 14 employees who failed to respond to their
subpenas. Under all the circumstances, I do not base any unfair labor practice
finding on Respondent's use of this memorandum.34
F. The Union's majority status
As already pointed out in subsection C, supra, between May 31 and August 14,
1962, 198 of Respondent's 337 employees in the appropriate bargaining unit signed
union cards. On these cards immediately above the space for "Applicant's Signa-
ture," appeared the following language:
I hereby request and accept membership in the above-named Union, and
authorize it to represent me, and in my behalf to negotiate and conclude all
agreements as to hours of labor, wages, and all other conditions of employment.
These cards, on their face, were therefore clear and unambiguous designations of
the Union as the employees' bargaining representative 35 Respondent nevertheless
contends that a large number of the employees signed the cards solely to get an
election and that the cards should not be counted in ascertaining the Union's
majority status. In treating this contention, it is proper to consider, in addition to
what is stated on the face of the signed cards, parole or written evidence of repre-
sentations made by union representatives and the card solicitors which are incon-
34 Cf The Babcock & Wilcox Company , 114 NLRB 1463. Winn-Dixie Stores, Inc, 12S
NLRB. 574, 578-579 , Lester Brothels , Incorporated 142 NLRB 992 , 1011-12, enfd. 337
F 2d 706 (C.A. 4).
15 A facsimile of one of the cards is shown in Appendix A, infra
BRYANT CHUCKING GRINDER COMPANY 1565
sistent with the language on the cards , ' such as testimony that the employee was
told that the only purpose of the card was to secure an election . Gotham Shoe
Mfg. Co., Inc., 149 NLRB 862. Since, however, the card is clear and unambiguous
on its face, it is not proper to consider evidence of the employee 's subjective intent
in signing the card for , as pointed out in Joy Silk Mills v. N.L.R.B., 185 F.2d 732,
743 (C A D.C.), cert denied 341 U.S. 914, " . an employee's thoughts (or
afterthoughts ) as to why he signed a union card , and what he thought the card
meant , cannot negate the overt act of having signed a card designating a union,
as bargaining representative." 36
During the 1962 organizational campaign and prior to August 14, the Union
held about 12 meetings , half of which were with the day shift employees and half
with the night shift employees . At the first meeting and at some subsequent meet-
ings, according to the credited testimony of International Representative Harley,
he explained to the employees the various means by which a union might obtain
recognition and bargaining rights-by voluntary recognition by the company if a
majority of the employees have signed union membership and authorization cards,
by unfair labor practice charges and Board Order where the employer engages in
unfair labor practices designed to destroy the union 's majority status, by economic
sanctions against a company to force it to recognize the union , or by means of
an election if the company forces the union to prove its majority in that manner.
In discussing the latter means of obtaining recognition and bargaining, he explained
that the Board would entertain a representation petition and order an election if
only 30 percent of the employees signed cards authorizing the Union to repre-
sent them, but that he did not intend to petition for any such election unless more
than 50 percent signed such cards. I am satisfied that as the Union 's organization
campaign progressed , Harley made it known that he contemplated that an election
would have to be held in order to obtain recognition . There was some talk about it
at union meetings as well as in conversations with individual employees. Thus,
according to employee Wettach's credited testimony, it was stated at one of the
union meetings that "the Union would like to have enough cards signed up to be
sure if it comes to an election , they will win the election ." And Harley-apparently
referring to the fact that in 1959 when the Union , without having cards from a
majority of the employees , was unsuccessful when it appeared on the ballot in
an election proceeding initiated by the Steelworkers union-told employee O'Hara
during the 1962 campaign that "We were not taking any chances this time; we
were going to have signatures enough before we asked for an election ." That an
election was contemplated was also made clear in a union leaflet issued on
August 3 in which it was stated , inter alia (General Counsel 's Exhibit 236):
UE 218 ORGANIZATION FOR NLRB ELECTION MAKING
GOOD PROGRESS
The campaign of Bryant Chucking Grinder workers to organize their own
self governing unit of UE Local 218 is making very good progress.
A large percentage have already signed UE cards and many Bryant workers
are active in the various departments of the shop.
Bryant workers who are pushing hard to get the Union in will appreciate
your help thru your signed UE card.
COMPANY DOES NOT SEE YOUR UE CARD
Several Bryant workers have told us they are in favor of UE Local 218,
and that they will vote for the Union in an NLRB election . But they have not
yet signed UE cards because they are afraid the Company will see their cards
and discriminate against them.
The fact is that Bryant Management will never see your UE card and the
Union will never show your card to the Company.
The UE card has two purposes:
1. We will present the cards to the National Labor Relations Board to get
an election . The NLRB keeps your card confidential . They never show your
card to the Company.
"Accord: N L.R.B. v. Green] eld Components Corporation, 317 F.2d 85, 89 (C A 1) ;
N.L R B v. Corbea, Perez ct Morell, S en C. 300 F 2d 886, 887 (C A. 1) ; N.L R.B v.
Sunshine Mining Co, 110 F.2d 780, 790 (C.A. 9), cert. denied 312 U S. 678; Consolidated
Machine Tool Corporation, 67 NLRB 737, 739, enfd 163 F 2d 376, 378 (C.A 2), cert.
denied 332 U S. 824.
1566 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
2. Your card is your written pledge that you want UE Local 218 at Bryant.
If we have your card we will count on your vote. If we don't have your
card, experience tells us we cannot count on your vote.
UE LOCAL 218 WILL NOT ASK FOR NLRB ELECTION
UNTIL WE HAVE ORGANIZATION NECESSARY TO WIN
Several Bryant workers who are in favor of UE Local 218 refused to sign
cards this time because they think the same thing will happen as in the last
two NLRB elections.
A lot of cards, a lot of work-and the Union lost.
This time UE Local 218 has no intention of asking for an election until
we have the CARDS and the ORGANIZATION to guarantee victory.
We say this to any Bryant worker who says he will vote for the Union but
won't sign a card:
"UE Local 218 will not count on a single vote from a person who has not
signed a card."
"So if you want to vote for the Union there is only one way to get the
opportunity-SIGN A CARD."
Respondent relies heavily upon the language which describes the first of the "two
purposes" of the card in contending that employees were informed by the leaflet
that the purpose of signing union cards was to get an election. I cannot agree that
this is a fair reading of the leaflet for it is also made clear that another purpose
was to furnish the Union with a written pledge by the employee that he wanted
the Union to represent him and thereby enable the Union to count on his vote.
Respondent also relies on the testimony of a number of employees to support
its argument that many signed cards solely for the purpose of getting an election.
In its brief it lists 12 employees whose testimony it construes as being to the effect
that specified union solicitors represented to them before they signed their cards
that the purpose of signing was to get an election. It lists 15 others whose testi-
mony it construes as having been told the same thing, before they signed, by some-
one whose identity they could not recall. It lists still others who testified that
although they themselves were not told that the purpose of signing was to get an
election, there was general talk about the cards being signed for that purpose or
general talk that an election would be held if a majority of the employees signed
cards. Respondent also made an offer to prove that in addition to the employees
listed in the above categories, many others would testify that they understood the
effect of signing cards was to get an election, or understood that there would be
an election if a majority signed cards. In addition it offered to prove that many
employees did not understand that their cards would be used to bring the Union
in without an election.33
For the reasons already stated, no weight has been given to the testimony 38 or
offers of proof regarding the subjective intent or understanding of employees
regarding the purpose or effect of their signing of union cards. The testimony
regarding "general talk" or "scuttlebutt" is likewise of an unreliable nature, not
only because of the difficulty of rebutting such testimony but because it is not
attributed to any union representative or solicitor. What one employee may say
to another about the purpose of signing a card is not authoritative, as each employee
must know, unless the speaker is an authorized union solicitor.39
For the same reason it would seem that no controlling weight should be given
to the testimony of employees that they were told by some unidentified person that
'37 Respondent appears to argue that cards should be invalidated because a number of
the employees when asked by Respondent's counsel if they were told that the Union
would use their cards to bring the Union in without an election, answered, "No " But
many of these same employees when asked by the General Counsel if they were ever told
that their union card would not be used to get the Union in without an election, almost
uniformly also answered, "No." I do not regard this type of testimony as significant
38 Despite my ruling at the hearing that counsel should not inquire into the subjective
thinking of employees, some testimony regarding the employees' subjective intent or
thinking appears in the record.
so In early September the Union published the names of 30 employees who had volun-
teered to serve on the Union's organizing committee (General Counsel's Exhibit 271)
On October 22, about 20 more names were added to the list and were published in the
Union's newsletter of that date (General Counsel's Exhibit 263).
BRYANT CHUCKING GRINDER COMPANY 1567
the purpose of signing a card was to get an election. Since in those instances there
is no evidence to connect the Union or its agents or solicitors with responsibility
for such statements,' it cannot be assumed that these employees' testimony referred
to statements from other than fellow employees expressing merely personal views.
Such personal views, moreover, would appear to be inconsistent with the state-
ments contained in the many union publications which were distributed to all the
employees, and it should not be assumed that employees would give more weight
in regard to this matter to the personal views of fellow employees than to the
written statements of the Union itself. Thus, prior to August 14 when the Union
requested recognition, it had distributed to the employees a news leaflet upon nine
occasions (General Counsel's Exhibits 230 to 238). These leaflets were devoted
almost exclusively to a comparison of wages and working conditions at Respond-
ent's plant with those at organized plants and to arguments as to why employees
should join the Union. In none of them except the August 3 one (General Coun-
sel's Exhibit 236) was any mention made of an election. Instead, there appeared
such statements as: "Organization gets results. Sign a UE 218 card now." (General
Counsel's Exhibit 231) ; "There's only one 'way to get a voice in your wages. That's
by organizing. Do it now by signing a UE Local 218 card." (General Counsel's
Exhibit 233); "Get yourself the protection and security of a union contract. Sign
for UE Local 218 today." (General Counsel's Exhibit 234); "Bryant workers can
get protection on time standards through UE Local 218 organization. Sign your
UE card today." (General Counsel's Exhibit 235); "Sign your card and get a voice
[in deciding -wages," benefits, job security and time standards]." (General Counsel's
Exhibit 238). International Representative Harley, moreover, credibly testified
that, in general, he sought to have these news leaflets reflect what was discussed
at the union meetings.
In view of the factors set forth above, it is concluded that no weight should
be given to that part of the testimony of the 15 employees listed in Respondent's
brief which, Respondent argues, should be interpreted as statements that they
were told by unidentified persons that the purpose of signing a card was to get an
election.40 In any event, a careful analysis of the entire testimony of these 15
employees does, not 'warrant a conclusion that they signed their cards because of
any representation made to them that the sole purpose of signing was to get an
election. Among those 15 listed by Respondent as being in this category is one,
Francis P. Lynch, Jr:, who did identify the person who made the alleged state-
ments regarding the purpose of signing a union card. This testimony will be con-
sidered below in connection with a treatment of the testimony of the 12 employees
listed in Respondent's' brief as having purportedly been told by union solicitors
that the purpose of signing' was to get an election.
The evidence regarding these 12 is now summarized below.
Malcolm Davidson signed his card on June 27, 1962. He was one of the first
employees to express an interest in the Union in 1962. He and several 'other
employees;'including Ronald Davis and Robert Burbank, met in a garage in Per-
kinsville, Vermont, with former Union Business Agent Henry Hicks in May 1962,
and questioned Hicks about how to get a union in the plant. Hicks explained to
them that if 30 percent of Respondent's employees signed union cards, they could
petition the National Labor Relations Board to hold an' election at which the
Union might be voted in, and that if over 50 percent signed cards the Union could
ask Respondent for recognition based on the card majority; if Respondent did not
then see fit to recognize the Union, it could ask for a card check by a third party
or petition the Board for an election. These employees also asked Hicks about what
benefits he thought the Union could get them and he gave his opinion about that
matter. .
Davidson was one of the employees interviewed by Respondent's counsel for a
second time, just before being recalled for cross-examination. Without having
first been given the opportunity to tell in his own words the circumstances sur-
rounding the signing of his card, he was asked, "Prior to the time you signed your
card in 1962, were you told that the purpose of signing the card was to get
"These 15 employees are : Edward Broderick, Kenneth A. Holden, James A. Williams,
Corad Godin, Joseph Yessman, Francis P. Lynch, Jr., Raymond F. Bowen, Charles E.
Delehanty, Wayne Stevens, Robert O'Hara, Gilbert Roys, Charles White, Ronald Hoyt,
Earl Burbank, and James LeMere.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an election?" Davidson replied in the affirmative.41 He later explained that he was
told, "If a majority of us sent back to the Union, the cards which we had signed,
they, would be presented into the, Labor Board, and they would authorize an elec-
tion ." When. asked who told-him this, he replied,, "It was the general word' all over
the shop. Quite a few different ones told` me . . . . I remember I was talking to.
Mr. Hussey in, particular, because he rides, with me . . . . He said the card stood
for the purpose of an, election; and I'd have to fill out another one afterwards to.
belong to it . . . . I pointed out what the card' read to him and he said for now
not to pay any attention to that." Hussey, on the other hand, testified: "He mis-
understood me if he said I said. anything- like that. I am a pretty, good, friend of
his, but I told him, I, remember very distinctly, . I said after the Union gets
in here, you will have to . . . sign a card to authorize the Company to deduct the
union- dues, from your pay,, otherwise they wouldn't be able to take any money out
of you unless you authorized the Company to do so." Davidson conceded that he
had. read, the, union. card several times prior to this discussion with Hussey, and I
am convinced that the subject of the discussion was the effect on liability for dues
of that part of, the, card, that reads, "I hereby request and, accept membership in
the above-named, Union" and. that Davidson' s recollection , when testifying, was
confused: In. any event, Hussey was not at that time a member of the Union's
organizing, committee and had no authority, to speak as an agent of the Union. A.
preponderance of the credible evidence does not support a finding that Davidson.
signed, his union, card because, of any representation by a, union agent or anyone
else that the card, would be used solely for the purpose of getting an election.
Ronald H. Davis signed- his. card on August 9. He was one of the employees
who met with former Union Business Agent Hicks in the Perkinsville garage in
May 1962 and. heard Hicks explain the various ways by which the men might get
a union in the shop and what the Union might be able to do for them. Davis
testified, that one of, the employees, whose name he thought was Harold LaFayette„
gave; him the card, and said: "That if I, signed the card there would be an election,
and he wanted, to. get a majority, of the men to, sign the cards,, and if the Union
could get the majority, to, sign the. cards there would be an election and that would
decide whether the Union would, be: in or not." LaFayette told. Davis, "All he
wanted to do, was get the majority." Davis further testified that before signing the
card he was told- by some of the men what benefits the Union was trying to get
the employees, through, bargaining. Even, assuming that LaFayette made the state-
ments, attributed, to him, by Davis, (which, LaFayette, denied), I do not construe
Davis' testimony as supporting Respondent's contention that LaFayette or any
other employee told him before he signed the card that the sole purpose was to
get an election 42
Sim, R. Gray, signed, his card on- July 27. He, was one of the employees inter-
viewed by- one of Respondent's, counsel between his, direct and cross-examination;
and, transported to the- hearing immediately thereafter in a company car. Without
*i It is noted that on January 13, 1964, the Board-in Cumberland Shoe Corporation, 144
NLRB 1268, issued an Order (unreported), granting the employer's motion for reconsid-
eration and amending its reported Decision and Order, inter alia, by adding the following
as footnote 3 to its Decision :
8 The record indicates that the testimony to this effect [that employees were told
that "the purpose" of the cards was to secure a Board election] consisted of affirma-
tive responses by the signatories to leading questions propounded by Respondent's
counsel, upon cross-examination, as to whether they were told that the purpose of
the cards was to secure an election. We do not deem such testimony sufficient to
controvert the statement of the purpose and effect of such cards contained on the
face, thereof, nor do we consider it inconsistent with an understanding that the cards
served the dual purpose, of designating a repiesentative and of securing an election.
The Board's ruling in Cumberland appears equally appropriate here
0 Davis appeared to be a rather confused v.itness Ile, testified that when he appeared
at the hearing. on July 30 to identify his card, lie sat in the audience and heard' other
employees testify that the purpose of signing the cards was to get an election As the record
shows, however, no employee was questioned or testified on that date regarding the circum-
stances surrounding the signing of his card. It seems obvious that Davis was confusing
what he heard with what he read about employees' testimony in Respondent's "news brief"
of August 8 (General Counsel's Exhibit 210), and in its letter of September 25 to all the
employees (General Counsel's Exhibit 317), both of which Davis acknowledged having
read
BRYANT CHUCKING GRINDER COMPANY 1569
having first been afforded an opportunity to tell in his own words the circumstances
surrounding the signing of his card, he was asked, "Before you signed your union
card were you told that the purpose of signing the card was to get an election?"
He answered, "Yes." He then testified that employee Emmett Gavin upon three
occasions had asked him, "How about signing a card so that we can have an elec-
tion in the shop?"; that he, Gray, at first said that he would think it over and on
the last occasion said, "Well, okay." Gray was alone when he finally signed the
card. He read it before signing it. I do not regard the statement, "How about sign-
ing a card so that we can have an election in the shop," as necessarily inconsistent
with the purpose of the card as stated on its face. Unless the employee is told
by the solicitor that the only purpose of the card is to obtain an election and that
the employee may vote against the union if he wishes, it would seem reasonable
to conclude that the employee who signs a union authorization card in order to
help bring about on election also signs because he wants the union to win an
election and represent him.
In any event, Gavin denied that he ever said anything to Gray about signing a
card to get an election. Gavin particularly impressed me as a responsible , honest
person and I am confident that he did not represent to Gray that the sole purpose
of signing was to get an election.
Richard Hall signed his card on August 8. He was one of the employees inter-
viewed between his direct and cross-examination by one of Respondent's counsel
and transported to the hearing immediately thereafter in a company car. Without
first having been afforded an opportunity to tell in his own words the circumstances
surrounding the signing of his card, he was asked, "Were you told that the purpose
of signing the card was to get an election prior to signing it?", and he replied in
the affirmative. He later testified that he believed employees Hendee and Putnam
had told him this but could not recall exactly what they said. He did not sign the
card immediately upon receiving it and read it before he did sign . He conceded that
at a union meeting he told International' Representative Harley about the pressure
under which he was working at the plant as a result of having to operate two
machines and stated that he may have told Harley that he hoped this situation
would be cured when the Union got in. He heard at the union meeting that the
Union "was going to help the shop." Hall was concededly very nervous on the wit-
ness stand and had difficulty remembering even what had occurred during the con-
ference with Respondent's counsel on the very morning he testified. He testified that
he was "quite forgetful"; "I've heard so much, as I said, I don't remember long."
On the basis of Hall's confused testimony alone, given under the circumstances
already related-even without considering the denials by Hendee and Putnam that
they made the representation incorporated in the leading question put to Hall-I
am unable to conclude that Hall signed his card because of any misrepresentation
made to him about the purpose of'signing, it.
John J. Lohutko signed his card on June 27. He stated that he first asked Emmett
Gavin for a card but that Gavin did not have any cards. Later a man who he under-
stood was a union steward at the nearby J & L plant, came to his house with- a card.
Lohutko further testified that before signing the card: "I already mentioned that I
wanted to be part of the Union . I actually asked him to what effect it had if
we were going to have to pay union fees if it passed. He said no . . That if the
Union didn't enter the plant by legal procedure that it would be dropped. It wasn't
said in those words but it was very close to it."
It seems clear that Lohutko requested a union card and signed it because, as he
had mentioned before signing, he wanted' to be a part of the Union and that there
was no misrepresentation made to him which induced him to sign.
Mitchell G. Matulonis signed his card on August 8. The card had been attached
to a union leaflet distributed to him in front of the plant. He read the card before
signing it . He testified that prior to that time employee Harlan Miles (who was not
even a member of the organizing committee), asked' him if he had signed and he
replied in the affirmative. Miles later informed Matulonis that the Union had not
received his card. He told Matulonis that the Union "wanted to get a better per-
centage than they had in the other election . . . . They wanted to have better than
50 percent to get the election." A day or two later, while alone in his car, Matulonis
signed his card. He then either mailed it to the Union or gave it to Miles. Before
he signed the card he and Miles had talked about the Union practically every week
and Miles had asked Matulonis why he did not go along, remarking that it "couldn't
do us any harm." Matulonis further testified that before signing he read practically
257-551-67-vol. 160-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the union leaflets; that the leaflets told what the Union was trying to do for the
employees , ,"get better benefits, a little more wages" and told them to "join the UE."
He also testified that no one ever told him that the language on the card had no
meaning but "they just said it was good for one year" and that "then after election
you would have to sign another card in order to get another one." Matulonis did
not testify as to who made the latter statements to him or that they were made prior
to his 'signing the card . On the basis of Matulonis ' entire testimony , I find no basis
for concluding that he was induced to sign because of any fraud, misrepresentation,
or coercion by any union solicitor or agent.
William D. Murchie signed his union card on July 31. He testified that prior to
signing he read all or most of the union leaflets; that he listened to both, sides, what
the Company had • to say and what the Union had to say, before making up his
mind about whether he wanted to sign it . He further testified that Gavin talked to
him about signing: -
Q. Well, give us his exact words, as best you can recall?
-A., He asked me if I was going to sign the card.
Q. What, if anything, did you say? -
A. Yes. Then he said , "If we had 70 percent we would have an election."
The evidence does not support Respondent's apparent contention that Murchie
signed his card because of any misrepresentation as to the purpose of signing it.
Paul Rubacka signed his card on July 26. He testified at first that "they" were
"after" him for several weeks before he agreed to and did sign, and that "they
wanted the majority to sign to get an election"; but he later explained that only one
person, Robert Burbank, talked to him about signing a card; the others had talked
about the Union, saying that it would help the employees by getting them -better
wages and better benefits. Rubacka then gave the following testimony on redirect:
Q. And I believe you said Mr. Burbank told you that the Union wanted a
majority of the employees to sign cards?
A. That is right.
Q. And they said that they wanted to win the election?
A. Yes.
Q. And did they say that they needed a majority of the cards so they could
get an election?
A. That's right.
Q. And he told you that he wanted you to sign the card so that the Union
could get a majority of the cards signed to win the election?
A. That's right. -
On recross-examination, Rubacka reiterated that Burbank had told him that the
Union wanted a majority of the cards signed "so we could get an election." In
these circumstances, even crediting Rubacka's testimony, denied by Burbank, that
the latter told him he should sign a card "so we can get an election," I do not con-
strue this statement as a representation that the sole purpose in signing was to get
an election or as indicating that Rubacka signed his card solely for that purpose.
Hollis Sherer signed his card on August 9. He testified on cross-examination that
he signed in the shop after employee Harold LaFayette asked him if he -would sign
a card "so they could get a majority of the cards to get an election." Later on
examination by union counsel, he gave the following testimony:
Q. And did Harold LaFayette apart from the time he gave you the card,
Mr. Sherer, did he ever talk union to you at all?
A. No. sir.
Q. You mean he just came up to you and gave you the card and asked you
to sign it?
A. He asked me if I would be interested in signing it.
Q. And you said you would?,
A. Yes.
I do not regard Sherer's testimony as supporting Respondent's contention that he
signed his card because of any representation that the sole purpose in signing was
to get an election. -
R. H. Westcott signed his card on July 27. He testified that he was asked seven
or eight times by Harold Willoughby to sign a union card. After repeatedly attempt-
ing to explain that his understanding of the purpose of signing was to get an
election and after having that type of answer stricken, Westcott stated at one point,
BRYANT CHUCKING GRINDER COMPANY 1571
"No, he didn't tell me this," but later testified, "This fellow asked me if I. would
sign a card to bring an election into the shop. Now, I can't say; to my under-
standing , that is what I thought it was." Thereafter, in response to the leading
question , "At that time before you signed the card, were you told that the purpose
of signing the card was to get an election?" he replied, "Yes" and said that
Willoughby had told him this. When asked specifically, however, what was said by
Willoughby, Westcott testified as follows:
Q. And it is your testimony that during the seven or eight times he told you
the same statement?
A. He didn't tell me; he asked me if I would sign the card. He asked me;
he didn't tell me to sign it.
Q. He asked you if you would sign the card?
A. That is right.
Q. And what did you say?
A. I thought it over, and I said not right now, I will have to think it over.
Q. Is it your testimony that during the seven or eight times he asked sub-
stantially the same question?
A. If I would sign a card, yes.
Q. Could you give us as best you can recall, Mr. Westcott, the words that
he used?
A. He asked me if I was going to sign a card; that is as near as I can
remember.
Westcott further testified that he did not sign the card for quite a while after being
asked to sign-not until a month or more later-and that nothing was said' about
the card at the time he signed. He read the card before signing it and was-, alone
at his machine when he signed it. He later gave it to Willoughby; 1 am not cbn-
vinced on the basis of Westcott's entire testimony that, he signed his card because
of any representation to him that the sole purpose"of signing was to get an election.
Francis P. Lynch, Jr. is not listed in Respondent's brief in the same category as
the other 12 employees being considered at this point. I believe, however, that
Respondent inadvertently neglected to include him in this category. Lynch signed
his union card on July 6. He is one of the employees interviewed by one of
Respondent's counsel, for a second time, between his direct and cross-examination.
Without first having been given an opportunity to tell in his own words the circum-
stances surrounding the signing of his card, he was asked, "Prior to signing your
card in 1962 were you told that the purpose of signing the card was to get an
election," and he replied, "Yes." He then testified that he was told this by different
fellows throughout the shop, including Robert Merrill, but could not recall what
was said. Using his own words in an attempt to describe what was said, he testified
that Merrill had "said that they needed a majority to have an election", that Merrill
asked if Lynch was going to sign a card ; and that Lynch said that he had already
signed one as, indeed, he had about a week earlier. Merrill apparently did not
believe Lynch and kept asking him to sign, whereupon Lynch signed a second card.
Lynch identified the card introduced into evidence as the first card he signed, and
testified that no one asked him to sign that one. On recross-examination, when
asked, "Did Mr. Merrill tell you before you signed the first card that the purpose
of signing was to get an'election?" he answered, "Yes."
On the basis of Lynch's entire testimony , and bearing in mind the circumstances
under which he testified, I am convinced that Merrill did not represent to Lynch
before he signed either the first or second union card that the sole purpose in
signing was to get an election.
One employee, H. P. Morris, Jr., who was interviewed by one of Respondent's
counsel between his direct and cross-examination and, without having first been
afforded an opportunity to tell in his own words the circumstances surrounding the
signing of his card, was asked the question, "Prior to signing the union card in
1962 were you told that the purpose of signing the card was to get an election,"
replied in the affirmative. He stuck to this testimony throughout his redirect exam-
ination, naming Union Solicitor Hendee as the person who told him that. Hendee
denied making any such statement . There is uncontradicted testimony by another
employee, C. C. Perry, and I find, that before he signed his card, Union Solicitor
Merton Goodell, Sr., told him that if he did not sign the union card until after
the Union came in,, it would cost him $40 or $50 to join. I find it unnecessary to
resolve the conflict in the testimony of Morris , Junior, and Hendee or to decide
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether the representation made by Goodell, Senior, to Perry was of the type
which should invalidate Perry's card, for an invalidation of these cards would still
leave the Union with a substantial majority in the appropriate unit.
Accordingly, even assuming (without finding) that the cards of Morris, Junior,
and Perry were tainted and should not be counted, the Union had a clear majority
of 196 out of 337 employees in the appropriate unit on August 14 when it
requested Respondent to recognize and bargain with it, and on August 17 when
Respondent refused.
G. Respondent's refusal to bargain in violation of Section 8 (a) (5) and(1)
of the Act
The record shows that the Union had in fact been designated by a substantial
majority of Respondent's employees in an appropriate bargaining unit as their
bargaining agent when the Union requested recognition and bargaining on Au-
gust 14, 1962; that Respondent, without expressing any doubt as to the Union's
representative status, refused the bargaining request on August 17 because of an
asserted company policy against recognizing any union until it had been certified
by the Board; and that Respondent thereupon embarked upon a course of con-
duct designed to dissipate the Union's majority status.
Among other things, while engaging in its antiunion campaign, it refused at the
representation hearing on September 10 and 11, 1962, to sign a consent-election
agreement which would have enabled the Regional Director to conduct an expedited
election and insisted upon a full hearing as to the unit placement of certain fringe
employees, and an opportunity thereafter to file a brief before the Regional Direc-
tor, although the Union at the representation hearing offered to stipulate with
Respondent as to the inclusion or exclusion on the voting eligibility list of what-
ever persons Respondent proposed if Respondent would sign a consent election
agreement and thereby expedite the election 43 It is a reasonable inference, in view
of Respondent's other conduct designed to defeat the Union at the polls, that
Respondent's refusal to accede to the Union's request for a consent election was
in furtherance of a plan to gain time in which to undermine the Union's strength.44
It utilized this time not only in which to wage a vigorous antiunion campaign
through letters and other written communications to its employees, but also in
which to engage in the unfair labor practices hereinbefore described, which were
designed to destroy the Union's majority status and prevent a free election. Because
of some of this unlawful conduct, the Regional Director found that Respondent
had, interfered with a free election and set the election aside.
Section 8(a)(5) of the Act makes it an unfair labor practice for an employer
to refuse to bargain with the representative designated by a majority of his
employees within an appropriate bargaining unit. It does not say that the employ-
er's obligation to bargain is conditioned on the Board's certification of the
union's representative status nor, indeed, on submission by the union of any
proof of its representative status.45 The Board, acting not on any express statutory
requirement, but rather on the equitable principle that an employer who enter-
tains a genuine doubt as to a union's representative status should' be entitled to
have that doubt resolved before being required to bargain, has applied the statute
so as to excuse an employer from his obligation to bargain if his refusal is
motivated by a good-faith doubt as to that status. Since this exception is grounded
48 See transcript pages 14, 19, 96, 97-98, 130-131, and 273-276 in the representation
proceeding , Case 1-RC-7067, to which my attention was directed in this case ; see also,
the Union's news leaflets of September 12 and 20 (General Counsel's Exhibits 248 and
250), charging Respondent with stalling tactics in this connection and Respondent's news
briefs of September 11 and 14 (General Counsel's Exhibits 282 and 283 ) stating Respond-
ent's position in this regard'.
44 Commercial Chemical Company. 10 NLRB 465, 467-408 469 ; Clearfield Cheese Com-
pany, Inc ., 106 NLRB 417, 440 ; see also, General Tire eG Service Company, 43 LRRM
1218, Case 16-RC-2368 (December 19, 1958), an administrative decision in which the
Board sustained the Regional Director's dismissal of a union's petition for an election,
since the union had refused to agree to a .timely consent election in a situation involving
no real unit question or other issues-the employer having agreed to go along with the
union on its unit placement contentions.
45 United Mine Workers Y. Arkansas Oak Flooring Co., 351 U.S. 62, 71.
BRYANT CHUCKING GRINDER COMPANY 1573
upon equitable principles , however, the Board does not permit the employer to
avoid his obligation to bargain with the representative which in fact represented a
majority at the time of the bargaining request , where the employer thereafter
engages in unfair labor practices which tend to dissipate that majority status or to
prevent a free choice in a subsequent election. Such an employer , having "made no
effort to learn the facts" concerning an uncoerced choice by his employees at
the time the union claimed to have been designated by a majority of them, and
having, instead , embarked upon an unlawful course of conduct designed to under-
mine the union 's strength and prevent a free election , must take "the chance of
what [the facts] might be ." N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862, 869
(C.A. 2), cert. denied 304 U.S. 576 and 585: N.L R.B v. Dahlsstiom Metallic
Door Company, 112 F.2d 756, 757 (C.A. 2). Accordingly, as stated in N.L.R.B.
v. Armco Drainage & Metal Pioducts Inc., 220 F.2d 573, 577 (C.A. 6), "It may
also be said that even though an employer be in doubt as to a union's authority,
such doubt does not excuse it where it is plain that its position was not based upon
any doubt but upon its unwillingness to treat with the representative of its employ-
ees. N.L.R.B. v. Dahlstrom Metallic Door Co., 2 Cir., 112 F.2d 756 "
I find that Respondent's refusal to bargain on and after August 17, 1962, was
not motivated by any good-faith doubt as to the Union's majority status in an
appropriate bargaining unit but was instead motivated by a desire to gain time
in which to dissipate that majority status46 The refusal to bargain was therefore
in violation of Section 8(a)(5) and (1) of the Act, and the Union's loss of the
election following Respondent 's refusal to bargain and other unfair labor practices
does not relieve Respondent of its obligation now to bargain with the Union. Joy
Silk Mills Inc. v. N.L.R.B., 185 F 2d 732, 737, 741 (C.A.D C.), cert denied 341
U.S. 914; International Union of Electrical , Radio and Machine Workers, AFL-
CIO (S.N.C. Mfg. Co., Inc.) v. N.L.R.B., 352 F.2d 361 (C.A.D C.); N.L.R B. v.
Stow Manufacturing Company, 217 F.2d 900, 904-905 (C.A. 2), cert. denied 348
U.S. 964; Amalgamated Clothing Workers of America, AFL-CIO (Elio Coip
& Ansaco Gloves, Inc.) v. N.L.R.B., 372 F.2d 264 (C.A. 2); N.L.R B. v. South-
eastern Rubber Mfg. Co., Inc., 213 F.2d 11, 15 (C.A. 5); N.L.R.B. v Armco Drain-
age & Metal Products Inc., 220 F.2d 573, 577 (C.A. 6). cert. denied 350 U S. 838,
N.L.R.B. v. Model Mill Co, 210 F.2d 829, 830 (C.A. 6); N.L.R.B. v. Howell
Chevrolet Company, 204 F.2d 79, 86 (C.A. 9), affd. 346 U.S. 482; cf. N.L R.B. v.
Joe Caldarera, d/b/a Falstaff Distributing Company, 209 F.2d 265, 268-269 (C.A.
8); Flomatic Corporation, 147 NLRB 1304.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (I) of the Act.
2. All hourly rated production and maintenance employees at Respondent's
Springfield, Vetmont, plant, including truckdrivers and production expeditors but
excluding office clerical employees, cooperative students, plant clerical employees,
technical employees, professional employees, leadmen (except leadman Wheelock),
watchmen, guards, and supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
3. At all times since August 14, 1962, the Union has been the exclusive rep-
resentative of all the employees in the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
401 do not regard It as significant as Respondent appears to contend, that the Union
filed its representation petition only 2 days after making its bargaining request and
without waiting longer for a reply from Respondent. It may well be that the Union, in
the absence of unfair labor practices by Respondent, would have preferred to have Its
representative status certified by the Board after an election, for there are advantages
which accrue to a certified union which an uncertified union does not have. The majority
status of a certified union, for example, may not normally be challenged during the first
year of its certification regardless of Its de facto majority status. Ray Brooks v N L R B.,
348 U.S. 9G. Moreover, Section 8(b) (4) (1) and (ii) (C) and (7) of the Act confers upon
certified unions certain protections or advantages not accorded to uncertified unions
0
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing on and after August 17, 1962 , to bargain collectively with the
Union, Respondent has engaged and is engaging in an unfair labor practice within
the meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, my
Recommended Order will require that Respondent cease and desist therefrom and
take the type of affirmative action normally required to remedy the unfair labor
practices found.
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act as amended, there is hereby issued the following:
RECOMMENDED ORDER
The Respondent, Bryant Chucking Grinder Company, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating or interviewing its employees in regard to their
union membership, activities, or sympathies, or in regard to the testimony which
they might be called upon to give in any Board proceeding.
(b) Threatening employees with job or other economic reprisals for assisting or
selecting United Electrical Radio and Machine Workers of Ameiica (UE) Local
218, or any other labor organization as the employees' bargaining representative
(c) Granting retirement benefits or other improvements in conditions of employ-
ment for the purpose of influencing its employees to reject any labor organization
as their bargaining representative; Provided, however, that nothing herein shall
be construed as requiring said Employer to withdraw, change, or abandon
any benefits or improved working conditions currently enjoyed by its employees
(d) Inducing or encouraging employees not to cooperate with Board agents in
the investigation or trial of any Board case.
(e) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights guaranteed in Section 7 of the Act.
(f) Refusing to bargain collectively with United Electrical, Radio and Machine
Workers of America (UE) Local 218, as the exclusive representative of its employ-
ees in the following appropriate unit: All hourly rated production and maintenance
employees at Respondent's Springfield, Vermont, plant, including truckdrivers and
production expeditors but excluding office clerical employees, cooperative students,
plant clerical employees, technical employees, professional employees, leadmen
(except leadman Wheelock), watchmen, guards, and supervisors as defined in the
Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with United Electrical, Radio and Machine
Workers of America (UE) Local 218, as the exclusive representative of Respond-
ent's employees in the unit found appropriate above, and embody any understand-
ing reached in a signed contract.
(b) Post at its plant at Springfield, Vermont, copies of the attached notice marked
"Appendix B." 47 Copies of said notice to be furnished by the Regional Director for
Region 1(Boston, Massachusetts), after being duly signed by an authorized repre-
sentative of Respondent , shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by said Respondent to insure that said
notices are not altered , defaced , or covered by any other material.
471n 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 be 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 "
BRYANT CHUCKING GRINDER COMPANY 1575
(c) Notify said Regional Director in writing, within 20 days from the date of
this Decision and Recommended Order, what steps Respondent has taken to comply
therewith.48
'B In the event that this Recommended Order be 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 "
APPENDIX A
B hereby request and accept membership in the above named union , and authori ze it to represent
me, and in my behalf to negotiare and conclude all agroemanis as to hour of labor , wages, and
all other conditions of employ.nent.
Book No............ ......:......... ..._._
Applicant's
/Pious. Wade
& Zone ._....... „........... ..........................
Employed by........ :...:^ . «. i^ ...._ _.._._........... _ _ Dept ......... . ............
Date._/...:.1...,G''" L'2Occupation„. 3..^lc.r__f ....^. . ........ _...I Check if Veteran []
out. moat be d ,7 r 1
Check or - Clock .__.....B(dg ............ ......Shift......(........ Floor,............
Print Name _......_..._ ............... ......................
form 5 - I II 52
vntcd0U s A _...____.t .2h4 Received by_....... _..._..._.................. ... .. ........
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate or interview our employees in regard
to their union membership, activities, or sympathies, or in regard to the
testimony which they might be called upon to give in any Board proceeding.
WE WILL NOT threaten employees, with job or other economic reprisals for
assisting or selecting United Electrical, Radio and Machine Workers of
America (UE) Local 218, or any other labor organization, as the employ-
ees' bargaining representative.
WE WILL NOT grant retirement benefits or other improvements in conditions
of employment for the purpose of influencing our employees to reject any
labor organization as their bargaining representative; Provided, however, that
nothing herein shall be construed as requiring us to withdraw, change, or
abandon any benefits or improved working conditions currently enjoyed by
our employees.
WE WILL NOT induce or encourage employees to refrain from cooperating
with Board agents in the investigation or trial of any Board case.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL, upon request, bargain with United Electrical, Radio and Machine
Workers of America (UE) Local 218, as the exclusive representative of our
employees in the following appropriate unit:
All hourly rated production and maintenance employees at our Spring-
field, Vermont, plant, including truckdrivers and production • expeditors
but excluding office clerical employees, cooperative students, plant cler-
ical employees, technical employees, professional employees, leadmen
(except leadman Wheelock), watchmen, guards, and supervisors as
defined in the Act.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL embody any understanding reached in a signed contract.
You are free to become, remain, or refrain from becoming or remaining, a
member of any labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a)(3) of the National
Labor Relations Act, as amended.
BRYANT CHuciur o GRINDER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(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, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108,
Telephone 532-8100.
Furniture Designs, Inc. and John W. Charles. Case 203-CA-2759.
October 4, 1966
DECISION AND ORDER
On May 18, 1966, Trial Examiner Alvin Lieberman issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices and recommending that the
Respondent cease and desist from such activities and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions and a brief in sup-
port thereof.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Members
Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The rul-
ings of the Trial Examiner are hereby affirmed. The Board has con-
sidered the Trial Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner 's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties, except the Charging Party, represented, was
heard by Trial Examiner Alvin Lieberman in Houston, Texas, on March 14 and
15, 1966, on complaint 1 of the General Counsel and answer of Respondent.2 The
1 The complaint was issued upon charges filed by John W. Charles.
2 Respondent 's original answer consisted of a letter written by Carl Waldman, Respond-
ent's president , which did not comply with Section 102.20 of the Rules and Regulations
of the National Labor Relations Board (herein called the Board). At the hearing Respond-
ent was permitted to amend its answer so as to deny specifically certain allegations of
the complaint.
160 NLRB No. 126.