Converters Gravure Service, Inc.

National Labor Relations Board - Board Decisions

May 5, 1967

164 N.L.R.B. 397 (N.L.R.B. 1967)

CONVERTERS GRAVURE SERVICE 397
Converters Gravure Service , Inc. and
Lithographers and Photoengravers
International Union , AFL-CIO, and its
Local Unions Nos. 33-L and 60-P,
AFL-CIO.' Case 9-CA-3939.
May 5,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 9, 1967, Trial Examiner James V.
Constantine issued his Decision in this 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 Decision. The Trial
Examiner also found that Respondent had not
engaged in certain other unfair labor practices, and
recommended that the allegations of the complaint
pertaining thereto be dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and brief, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The record in this case shows that the Union
approached Respondent's president, William
Cronkrite, on May 27, 1966,2 claiming to represent a
majority of Respondent's employees, and requesting
recognition and bargaining. At this time, the Union
had obtained authorization cards from 8 of the 15
employees in the appropriate unit.
In reply to the Union's request, Cronkrite asked
what "other alternatives" the Union offered. The
Union offered to submit cards to a neutral party for a
card check, explaining such procedure. Cronkrite
asked to think it over, promising to send an answer
by letter on the first or second working day hence.3
He further asked if still other alternatives existed.
The Union replied that it "could take the cards and
file a petition with the National Labor Relations
Board for a representation election." Cronkrite
asked "when [it was] going to do that," and the
Union replied it "probably would go ahead with the
petition before the Board, but that it would be
understood that if he [Cronkrite] did send us a
letter, or if he decided to go to a card check, that we
could get the cards back from the Labor Board in
order to have a card check performed, and we would
then in that case withdraw the petition for an
election." The meeting adjourned.
At no time during this confrontation did Cronkrite
question the validity of the cards or ask to see them.
He did state that he doubted the Union's majority,
but gave no reason. Immediately following the
meeting with the Union, Cronkrite called all the
employees together and told them of the Union's
request for recognition. He remarked that, if the
employees wished to have a union, he'd abide by
their wish, but if he felt anyone signed thinking this
card would only be used to obtain an election he
"would resist this" (card recognition). A general
question-and-answer period ensued. An employee
suggested that a vote be taken right then and there;
Cronkrite said that he was not allowed to take such a
vote, and did not want to know who was for or
against the Union. He went back to his office.
The employees thereupon took a "secret ballot"
vote, and the ballots were opened in the presence of
them all. The results were announced 12 for no
union, 1 in favor of the Union, and 1 blank ballot. An
employee went to Cronkrite's office, and despite
Cronkrite's protest that he did not wish to know
about any vote, told him that only one employee was
in favor of the Union, and the rest opposed.
Cronkrite thereupon said that in that case he
thought the only fair way to settle things was to go to
an election.
On May 31, Cronkrite wrote to the Union, stating:
"You have requested ... bargaining rights ... I
sincerely doubt that a majority of our employees
desire that this status be granted to your union ... I
must decline to grant your request ... unless and
until" a majority choose the Union in an election.
Further "From the conversation ... Friday you
apparently do not object to such a procedure ... I
am formally petitioning the National Labor Relations
Board to hold such an election. . . ." Cronkrite in
fact filed such a petition that very day.
On June 1, without having received Respondent's
letter, the Union wrote to Cronkrite. Its letter
summarized what had transpired at the Friday
meeting, including the statement that "We told you
that we expected to file for an election . . ." and
ending with the statement that "Our offer still
stands. We are willing to prove our majority and to
meet ... to negotiate a contract." In fact, the Union
had filed the unfair labor practice in the instant case
on May 31. No further communication between the
parties was had.
On these facts, the Trial Examiner found that
Respondent did not in good faith doubt the Union's
majority on May 27, and, accordingly, as of that date
' Herein the Union
2 All dates herein refer to 1966
I e., May 31 or June 1
.164 NLRB No. 53
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(5) in refusing to recognize and
bargain with the authorized representative of its
employees. We do not agree. While Respondent's
good- or bad-faith doubt must, of course, be
established as of the time the Union actually made
its demand on May 27, evidence of the parties'
conduct before, during, and after their confrontation
on that date certainly is relevant and material in
establishing Respondent's motivation in refusing to
accede to the Union's request for immediate
recognition and bargaining. The Trial Examiner
absolved Respondent of all alleged violations of
Section 8(a)(1),4 with the exception of one incident of
alleged improper interrogation.5
The Board has held that the burden of proving a
respondent's lack of a good-faith doubt or bad faith
in cases of this nature rests with the General
Counsel.6 We cannot find in the circumstances of
this case that the General Counsel has carried that
burden by a fair preponderance of the evidence.
Indeed, the very opposite is indicated. President
Cronkrite's statement on May 27 that he doubted the
Union's majority was not accompanied by
knowledge, conduct, or words inconsistent with the
expression of his belief as to the Union's status. At
no time did Respondent make a free election
impossible by attempting to dissipate the Union's
majority by unlawful means. Instead, Respondent
assured its employees that it would abide by their
wishes and recognize the Union, if they so desired.
When it appeared that most of the employees did
not, in fact, wish union representation, Respondent
filed an RM petition with the Board for a Board-
conducted election, an alternative suggested by the
Union on May 27, and one provided for in the Act. It
is also significant, in our view, that Respondent did
not unduly delay filing the above petition, but did so
on May 31, within 4 days of the Union's request. On
the other hand, the Union, contrary to its stated
position on May 27, and repeated in its letter of
June 1 to Respondent (to the effect that it expected
to file a petition), did not file a petition, but in fact
filed the charge in this case on May 31.
On the basis of the foregoing, we find that
Respondent did not violate Section 8(a)(5) or (1) of
the Act, and we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' In the absence of exceptions thereto , we adopt pro forma the
Trial Examiner 's recommendation that the allegations of the
complaint pertaining thereto be dismissed
5 The Trial Examiner found that one employee was asked what
he thought about the Union We are of the opinion that even if the
question was asked , as found by the Trial Examiner , it was, at
most , an isolated occurrence not violative of Section 8(a)(1) of the
Act
6 Aaron Brothers Company of California, 158 NLRB 1077.
TRIAL EXAMINER'S DECISION
NATURE OF THE CASE
JAMES V. CONSTANTINE , Trial Examiner : This is an
unfair labor practice case initiated on May 31 , 1966, by a
charge filed pursuant to Section 10(b) of the National
Labor Relations Act, herein called the Act. 29 U.S.C.
160(b). That charge, naming Converters Gravure Service,
Inc., as Respondent , was filed by an International Union
and two of its locals. On July 29 , 1966 , the General
Counsel of the National Labor Relations Board , through
the Acting Regional Director for Region 9 (Cincinnati,
Ohio), issued a complaint based on said charge. In essence
said complaint alleges that Respondent has committed
unfair labor practices forbidden by Section 8(a)(1) and (5),
and that such conduct affects commerce as defined in
Section 2(6) and (7) of the Act. Respondent has answered
admitting some facts but denying that it violated the Act.
Pursuant to due notice this case was heard at
Middletown , Ohio, on October 11 and 12, 1966 . All parties
were represented at and participated in the hearing and
were granted full opportunity to adduce evidence , examine
and cross - examine witnesses, submit briefs , and present
oral arguments . Respondent 's motion to dismiss portions
of the complaint was denied. Respondent and the General
Counsel argued briefly at the conclusion of the hearing.
Briefs have been received from Respondent and the
General Counsel.
Upon the entire record in this case , and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent, an Ohio corporation, is engaged at
Middletown, Ohio, in repairing and engraving rotogravure
printing cylinders. During the year prior to the issuance of
the complaint, Respondent received goods and materials
valued in excess of $50,000, directly from points outside
the State of Ohio. I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the purposes of the Act to
assert jurisdiction over it in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
Lithographers and Photoengravers International Union,
AFL-CIO, and its Local Unions No. 33-L and No. 60-P, is
each a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
During the month of May 1966,1 George R. Darner, Jr.,
president of Local No. 33-L, one of the Charging Parties,
conducted an organizing drive among the employees of
Respondent . In this campaign , Darner was often
accompanied by Peter B. Schneider , International
representative of Lithographers and Photoengravers
International Union , AFL-CIO, the parent of Local No.
33-L, and sometimes by members of Local No. 60-P, a
sister union and another one of the Charging Parties. As
' Except where otherwise specified, all events hereinafter
mentioned occurred in 1966
CONVERTERS GRAVURE SERVICE
part of the campaign each employee solicited was given a
kit containing several pieces of literature, a pencil, and
Darner's calling card. In addition, a copy of the
International's constitution had been mailed to such
employees prior to this. One of the items included in the
kit was an "Informational Bulletin" (Resp. Exh. 1), which,
in part, states that "You will soon have an opportunity to
vote in an N.L.R.B. election" and describes certain
employer conduct alleged to be proscribed by the Act. In
another paragraph this bulletin states that "it is hoped that
such tactics will be avoided in this election, but you should
be on guard against the possibilities." Along with the
literature contained in the above-described kit a "blue
membership application" was also enclosed. This is in the
record as Respondent's Exhibit 2.
B. The Alleged Refusal to Bargain
1. General Counsel's evidence
When Darner solicited employees of Respondent he also
gave each one a "white authorization card." He succeeded
in obtaining signed authorization cards from seven
employees, each of whom subscribed in his presence, viz,
William Howard, Jack Brandenburg, Wesley Blythe,
Alfred Bradshaw, William Corbin, Larry Sinkowitz, and
John Kalnai. (G.C. Exhs. 2-8.) One more card, that of
Michael Casey (G.C. Exh. 9), was obtained by
International Representative Schneider, who personally
observed Casey sign it. Schneider turned it over to Darner.
Thus, eight cards were obtained between May 2 and 26.
These authorization cards in pertinent part provide that
"the undersigned, an employee of [Respondent] do
hereby appoint the Lithographers & Photoengravers
International Union-AFL-CIO, and Local 33-L-- 60-P
thereof, Dayton Ohio, or either of them, my true and lawful
agent , for me and in my place and stead, to bargain
collectively ' with said concern, and authorize the
submission of this card to the National Labor Relations
Board."
On Friday, May 27, Darner and Schneider,
accompanied by DeLater, secretary of Local No. 60-P,
called on William Cronkrite, Respondent's president, at
the latter's office. Thomas Wortley, a "partner" of
Cronkrite, was also present at the time. The union men
informed Cronkrite that they had talked to most of the
employees "in his establishment and . . . had an
overwhelming majority of the people who had signed
authorization cards, and, therefore [asked] for recognition
for the purpose of negotiating a contract to cover all ...
production and maintenance people ... [covering] wages,
hours, and working conditions." At this point Cronkrite
left for a few minutes. Upon returning he told the union
people that he could not recognize them as the bargaining
agent for his employees and asked to know what "other
alternatives" the union men offered.
Replying to Cronkrite's request for "other alternatives,"
Darner said that the unions were willing to submit the
cards to an impartial third person, such as a clergyman or,
a public official, who would check the cards against an
employee list to ascertain whether the Union had
substantiated its claim of a majority. Cronkrite replied that
he would not agree to this procedure "at the moment," and
asked for more time "to think it over." When Darner
inquired how much time Cronkrite desired, the latter
responded that he "could give ... an answer by letter ...
[on] Tuesday or Wednesday of the following week."
399
Continuing, Cronkrite asked if still "other alternatives"
existed. To this Darner replied that the Union "could take
the cards and file a petition with the National Labor
Relations Board for a representation election." When
Cronkrite asked when the Union was going to do that,
Darner replied that "we probably would go ahead with the
petition before the Board, but that it would be understood
that if Cronkrite sent [the Union] a letter, or if he decided
to go to a card check that [the Union] would get the cards
back from the Labor Board in order to have a card check
performed" and in that event the petition for an election
would be withdrawn.
During the above conversation Cronkrite neither asked
to see the signed cards nor questioned their validity.
However, a blank unsigned card was handed to Cronkrite
at his request.
The union people did not again meet with Cronkrite. By
letter (Resp. Exh. 4) dated May 31, Cronkrite wrote to
Lithographers and Photoengravers International Union
that "I sincerely doubt that a majority of our employees
desire that this status [recognition] be granted to your
union. For this reason I must decline your request for such
recognition unless and until a majority of our employees
have voted in favor of this status in a secret ballot election
conducted by the National Labor Relations Board. From
the conversation that I had with you Friday you apparently
do not object to such a procedure.... I am formally
petitioning the National Labor Relations Board to hold
such an election as soon as possible."
On June 1, President Darner of Local 33-L wrote to
Respondent's President Cronkrite reviewing the meeting
of May 27, at which recognition was demanded and
recapitulating the events of that meeting. It closed with
the assurance that "Our offer still stands. We are willing
to prove our majority and to meet with you at any mutually
satisfactory time to negotiate a contract covering wages,
hours, and other conditions of employment on behalf of
your production employees."
Employee Alfred W. Bradshaw signed an authorization
card (G.C. Exh. 7) in his living room on May 23, upon the
solicitation of President Darner of Local 33-L. Paul
Schuermann was also present at the time. Among other
things, Bradshaw was told that the cards would be used in
the event it became necessary to file a petition for an
election "in the event the employer refused to recognize
our union as exclusive bargaining agent ; that experience
demonstrated that a showing of 70 percent of the cards
rendered about an even chance of winning an election,"
and that "many things could happen between the time of
signing the cards and the election."
Darner and International Representative Schneider
induced Jack Brandenburg to sign an authorization card
(G.C. Exh. 5) on May 19, at Brandenburg's home. They
told Brandenburg the card would be used in an attempt to
obtain recognition as bargaining agent; if that request was
refused, the cards would be shown to an impartial third
party to ascertain whether the Union had a majority, in
which case the Employer would have to bargain with the
Union; and that, if neither of these two alternatives
succeeded in "gaining bargaining rights, then the cards
could be used, and probably would be used to trigger an
election by the National Labor Relations Board."
On May 19, employee William J. Howard signed an
authorization card (G.C. Exh. 4) upon the solicitation of
Darner and Schneider in Howard's driveway at home.
Howard told them he had just returned from a funeral and
"apparently was in a hurry to get in the house."
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Substantially the same language was used in describing
the purpose of the cards as that in soliciting employee
Brandenburg. The blue application for membership card
was also briefly discussed with Howard and its difference
from the white authorization card was explained, but
Howard was not asked to sign the blue "application
blank." Howard, as well as all others solicited, was also
assured that his authorization card would be kept
confidential.
Employee John S. Kalnai signed an authorization card
(G.C. Exh. 3) on May 26 in the presence of Darner and
Schneider in the living room of Kalnai. They told Kalnai
that the card would first be used to obtain recognition,
adding that "our union required us to get at least 75
percent of the cards because of the possibility of losing
part of our majority in the time lag between going to the
employer," or in the event there would be an election, to
be fairly sure of winning it. Continuing, they told Kalnai
that, if the Employer refused recognition the cards would
be exhibited to an impartial third party to ascertain
whether the Union enjoyed a majority; and, if the
Employer rejected the third party's determination, the
Union "would take the cards to the National Labor
Relations Board ... and file for an election." Darner
testified that he generally told employees that the Board
needed 30 percent before it would entertain a petition for
an election.
In soliciting employees to sign authorization cards
Darner told everyone he interviewed that during an
organizing drive both the local union and the International
each waived its usual initiation fee but not the $8 death
benefit fee required of new members; but he did not
condition such waiver upon the outcome of an election.
After the charge was filed some employees asked
Darner to withdraw the charge and proceed with an
election.
Employee Michael R. Casey subscribed an
authorization card (G.C. Exh. 9) on May 17 at the request
of International Representative Peter B. Schneider, who
also witnessed the signing . Schneider told Casey that the
card "was to begin proceedings with management ... for
the purpose of collective bargaining and obtaining better
working conditions for the employees"; that if
management did not accept the cards, they would be
submitted to an impartial person; "and then finally as a
last-resort to the National Labor Relations Board."
2. Cronkrite's testimony as a witness for the General
Counsel
When the union representatives called on Cronkrite on
May 27, they asked to be recognized as collective-
bargaining agent of the production and maintenance
employees, according to Cronkrite. Schneider claimed he
had an "overwhelming majority of the employees" who
had requested him to "bargain a contract" with Cronkrite.
When Cronkrite asked if "this request" was for an
election rather than to "bargain a contract," Schneider
replied that it was a request to "bargain a contract."
Thereupon Cronkrite said he "still had doubts as to this"
and insisted it was "not his choice to make" but that it was
a choice the employees had to make." Again Cronkrite
asked if it was a request for an election , and Schneider
reiterated that it was a "request from the majority of the
people to bargain a contract." Then Schneider offered
Cronkrite three alternatives: one, to accept Schneider's
word as to majority; two, to let an impartial observer
ascertain whether the Union had a majority; and three, to
"present the cards to the N.L.R.B. for clarification of this
recommendation."
Cronkrite testified he doubted the Union's majority. At
the hearing he based this doubt on comments of
employees made to him and Vice President Wortley that
they did not want union representation. But some of these
employees had not signed union authorization cards and
none of them said he had signed a card. However,
Cronkrite did not "have any reason to believe" that
Schneider and Darner did not have a majority of cards
when they claimed on May 27 that they had such a
majority in their possession; nor did Cronkrite ask to see
such cards at the time.
After the meeting of May 27, with the union
representatives a straw vote was taken by the employees.
Ray Casey, an employee, informed Cronkrite of the result
thereof, stating that only one employee wanted union
representation and that the remainder did not. Thereafter,
Cronkrite wrote Respondent's Exhibit 4 on May 31, and
mailed it to the Union.
Ray Casey's status is in issue . Cronkrite supervised all
but the copper plating and chrome plating operations. The
latter were supervised by Vice President Wortley. Each
morning a group meeting is held. It is attended by
Cronkrite, Wortley, Haun in preparatory, Sinkowitz in
finishing, and Ray Casey in engraving. At this meeting
Cronkrite would provide Haun, Sinkowitz, and Ray Casey
with a single complete, written schedule for the day. This
was then posted on a bulletin board for all others to see.
Wortley would prepare it in Cronkrite's absence. When
both Cronkrite and Wortley were absent, a rare
occurrence, the schedule theretofore posted would
continue to be followed until a new one was posted. One
other person, Bill Miller, works with Ray Casey in
engraving. Casey also informs the night men of their
assignments . Although the parties stipulated that Ray
Casey is in the unit, I expressly find that he is not a
supervisor because (a) his assignments to Miller and the
night men involve only routine relays of orders from
Cronkrite or Wortley to him and do not involve
independent judgment, and (b) if he is a supervisor, so are
Haun and Sinkowitz, thus producing a topheavy staff of
five supervisors to direct 13 men.
Two or three weeks before May 27, Respondent's
President Cronkrite learned from Vice President Wortley
and from three employees that the Union was organizing
Respondent's plant. When it "became evident [to
Cronkrite] that it was a strong campaign [he] held an
informal meeting [of employees] in the plant" on May 23.
Cronkrite opened the meeting by telling his audience that
he knew the Union was contacting employees and that
"there was no point in our not bringing it out into the open
and discussing it." Then he said that the Union "can gain
the right to negotiate." This was followed by expressions
of concern as to "future expansion," Cronkrite pointing
out that Respondent operated in a manner which allowed a
great deal of flexibility in moving employees "from many
different jobs," but that under a union Respondent would
not be able to do this "to the same degree" and would be
"more limited" in operating under a union. Continuing,
Cronkrite mentioned that he could start a "second
operation under [his] present system with fewer men than
[he] could do under a union shop agreement." Next he
remarked that he was considering opening a new and
additional shop in Memphis, Tennessee. Responding to a
question, he answered that the Memphis plant would be
CONVERTERS GRAVURE SERVICE
started regardless of whether a collective-bargaining
contract was negotiated.
One employee at this point asked Cronkrite whether if a
union came in and union journeymen were employed, an
apprentice like him would lose his job in case of a
reduction in force. Cronkrite replied that "it would have
no effect on any employees who were presently with the
company." However, Cronkrite did tell the assembled
employees that, from contracts he had seen, they would
have to join the Union if a collective-bargaining contract
was negotiated. Cronkrite concluded by mentioning that
his door would be open to any employee who "wanted to
discuss it further." Before concluding Cronkrite told them
that if it was their wish to have a union he would "abide by
it," but if he "felt" that any had signed cards believing it
was for a vote "where in fact it may have been for a
bargaining agreement, then [he] would resist this."
Many employees, according to Cronkrite, told Vice
President Wortley that they signed cards because they
thought "it was for a vote."
3. Respondent's evidence
Prior to May 27, Vice President Wortley told President
Cronkrite that about 11 employees had talked to him about
the Union's organizing activities . These employees had
informed Wortley that they had been approached at their
homes by Union Representatives Schneider and Darner to
sign cards and were given literature in a kit to read.
Employee Fryman turned over his kit to Wortley, who in
turn gave the kit to Cronkrite. However, not a single
employee mentioned whether he had signed a card, and
Wortley did not inquire whether he had. An unidentified
employee told Wortley that he wished that they could get
an election and "get it over with" because he was tired of
being bothered at home.
When the union representatives called on him on
May 27, Cronkrite first asked them if the cards they
possessed "signed a request to bargain or are they a
request for an election ." He was informed they were "to
bargain ." Then Cronkrite expressed that he doubted a
majority, but did not say why. At the hearing he testified
that this doubt was "based on a feeling that a doubt
existed in [my] mind" that employees had signed the
cards believing they were "for the largaining but ...
thinking they were for an election."
After the results of the straw vote of May 27 were
disclosed to Cronkrite, he decided to file an RM petition
for an election . So he mailed to the Union the letter in
evidence as Respondent's Exhibit 4 on May 31, and on the
same day filed the petition in Case 9-RM-438. This
petition was later dismissed by the Board.
Employee Alfred Bradshaw on May 23 signed a union
authorization card (G.C. Exh. 7) in his living room at the
request of Darner. In his talk to Bradshaw, Darner gave a
sales pitch about union policies and benefits: that he
wanted to get from Cronkrite "all the blood we can"; and
that the card would be kept confidential except that in
"case of a hearing" the Board would see it . At this point
Bradshaw inquired , "If I sign this card am I okaying for an
election?" Darner replied, "Yes."
Jack Brandenburg, another employee of Respondent,
signed a union authorization card (G.C. Exh. 5) in May
1966 at his home, where he was solicited by International
Representative Schneider and President Darner of Local
33-L. First, Brandenburg was told "what the union was all
about." When he was asked to sign an authorization card,
401
Brandenburg was told that "this card represented
something so they could represent us for the union, and we
were signing these cards so we could have an election at
the shop. [Also] these cards were ... confidential; nobody
would find out except the Board."
Brandenburg further testified that the "main reason"
why he signed the card was because they told him there
would be an election. However, on cross-examination he
testified that he knew the union representatives were
going to take these cards to Mr. Cronkrite and request
recognition, that he had such knowledge when he signed
the card, and that he was told an election would be held as
a "second step" only if Cronkrite refused to grant such
recognition. At no time did Brandenburg attempt to revoke
or withdraw his authorization card.
On redirect, Brandenburg replied, "Yes, sir," to the
question , "Is it correct that you were told that the union
would have to be voted on even if you signed the card?"
Patently this is a leading question which suggests the
answer. Of course evidence elicited by leading questions
is not per se unreliable; but under the circumstances,
including the fact that this question put words in the
mouth of the witness after he had on cross given a
contradictory version, I conclude that this answer is not
worthy of probative value. Cf. Crawford Manufacturing
Co., 161 NLRB 989. Hence I have disregarded it in
evaluating Brandenburg's testimony, especially since, on
re-cross, Brandenburg testified that he "took it for granted
[from what employees had told him prior to signing] that
there would be a vote" because Cronkrite would refuse
recognition when it would be requested.
Michael Casey, whom I have found to be an employee,
also signed a union authorization card (G.C. Exh. 9) on
May 17, at the request of employee Cannon and
International Representative Schneider. After showing
Casey the material in the Union's kit, Schneider explained
the Union to him. Then Schneider handed Casey an
authorization card which Casey read. When Casey asked
if the card "Meant I vote for the union," Schneider replied
that it did not. Continuing, Schneider asserted that when
over 50 percent signed cards they would be taken to
Cronkrite, Respondent's president; the cards would not be
shown to anyone but, rather would be kept confidential;
the cards would be seen only by the National Labor
Relations Board or a clergyman if they had to be counted
to ascertain "their percentage"; and the cards would be
destroyed "after the count was taken." Then Schneider
said there would be an election because he thought
Cronkrite would not go along with the Union's demand for
recognition, which would first be made.
Casey also testified that the Union's campaign was
discussed extensively among Respondent's employees,
and it "was of major concern" to them prior to May 27.
When he discovered that no election would be held, Casey
"thought about it very seriously" but did not attempt to
repudiate or withdraw his card.
An authorization card (G.C. Exh. 4) was signed by
employee Billy Joe Howard on May 19, upon the
solicitation of Union Representatives Schneider and
Darner. This occurred in Howard's driveway just as he
returned from a funeral. When Howard insisted to them
that he was in a hurry, they assured him they would be
brief. After presenting him a kit containing union
literature, they told Howard they were trying to organize
shops in the Middletown area. Then they asked him to sign
an authorization card , assuring him it would remain
confidential. Although Howard did not want to sign it
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because his writing arm was broken at the time, he
nevertheless did so. The card was read to him before he
signed it. A day or two later he personally read an identical
blank card.
Among other things, the union representatives told
Howard that the card "meant nothing," that it "was for an
election ," that a majority of employees had already signed
such cards, and that he would receive a free subscription
to a union magazine . Finally, Howard signed "just to get
them off my back." But signing to get a solicitor "off a
back," without more, will not annul the validity of a card.
Conren, Inc., 156 NLRB 592. On cross-examination,
however, Howard asserted that the union representatives
"could have" stated that they would first demand
recognition of President Cronkrite and "in the absence of
him granting recognition , then they would go for an
election." At no time thereafter did Howard ask for the
return of his card or disclaim interest to the Union, even
though employees at some time prior to May 27 explained
to him that the card "was just the same as a vote. But
there wouldn't be no election."
Employee John Kalnai signed a union authorization card
(G.C. Exh. 3) at his home on May 26, at the request of
International Representative Schneider and President
Darner of Local 33-L, who visited him there. Before
signing Kalnai was presented with a kit and a copy of
Respondent's Exhibit 1, which he then read. He was also
told that they would like to have 75 percent sign cards to
insure a better chance at an election, that the cards would
be taken to President Cronkrite and a request for
recognition and a contract would be made as the Union's
first step "in attempting to get into Converters Gravure";
that if Cronkrite refused to recognize the fact that they had
a majority of cards they would take them to some other
party "to be verified" and then present them to the Board.
C. Interference, Restraint, and Coercion
1. General Counsel' s evidence
Employee John Kalnai attended a meeting of employees
on May 23, called by President Cronkrite of Respondent.
It was held about 3 p.m. Addressing those so assembled,
Cronkrite said that he had known the Union was trying to
get the employees to have a union at Converters Gravure;
he wanted everyone to know about this; Respondent was
thinking of establishing a chrome and finishing
department in Memphis; the Memphis work involved four
jobs which could probably be handled by two men; but, if
the Union got in, four men would have to do these jobs and
also if journeymen were out of work "they would have to
bring those in" rather than send an apprentice from
Middletown; and if new hires were made, additional
journeymen would first be taken on because the Union
required a ratio of about nine journeymen to one
apprentice, but that present employees, most of whom
were apprentices, would not be affected thereby.
Cronkrite also mentioned that Respondent was
considering moving to a new location in Middletown, and
that the Union "possibly" would oppose this. Finally,
Cronkrite invited employees to bring out in the open
anything they wished then to discuss.
About 3 p.m. on May 27, Cronkrite held another
meeting of employees at the plant. Someone asked him if a
vote could be taken, but he replied that it would be illegal
for him to do this, that he would have nothing to do with it,
and they could do what they wished. When Cronkrite left
Ray Casey suggested taking a vote and distributed blank
pieces of paper to the employees, telling them to signify
prounion sentiment with an X and to mark 0 if opposed to
the Union. These ballots were then collected by employee
Richard Diver and deposited in a can, after which they
were counted by Casey in the presence of everyone. Then
Casey announced 11 did not want the Union, 1 voted no,
and 1 was for the Union.
After this Ray Casey brought the can and the ballots to
President Cronkrite's office and informed the latter of the
outcome of the straw vote; i.e., 12 were against, 1 was for,
the Union and 1 ballot was blank. Thereupon Cronkrite
answered that he would go to the National Labor Relations
Board and file for an honest election. None of the ballots
was shown to Cronkrite.
William Earl Corbin, an employee of Respondent during
March, April, and May, also attended the meeting of
May 23, described by employee Kalnai. Sometime
thereafter in May, President Cronkrite invited Corbin to
the office and spoke to him. Mentioning that the Union was
conducting a campaign, Cronkrite added that he did not
know how Corbin felt about the Union. Corbin replied that
it sounded like a pretty good deal to him and explained
that one of the reasons prompting him to think so was that
the Union had a retirement plan whereas Respondent did
not. This caused Cronkrite to observe that Respondent
was considering a retirement plan and that Corbin was
better off because he received a bonus and overtime and
was free from paying dues. During this interview Cronkrite
also asked Corbin what the latter thought about the Union.
Corbin answered that he "kind of liked the idea" because
the Union had much better hours, wages, and benefits
than Respondent.
2. Respondent's evidence
President Cronkrite talked to employee Bill Corbin at
the latter's work station because Corbin had received a
wage increase about 2 weeks before. Asking Corbin how
things were going was part of Cronkrite's method of taking
an interest in employees. However, because Corbin's reply
manifested that something was bothering him, Cronkrite
invited him to the office to talk about it.
When Corbin came to the office, Cronkrite told him it
was better "to bring things out in the open; that
[Cronkrite] hoped we could keep things clean ; we each
knew what was going on; and it would be better to discuss
it openly." Then Corbin said that the Union had
approached him and "had made him a full journeyman" so
that he could get a job in a union shop at a considerable
increase in wages. Cronkrite replied that he could not
raise Corbin to a journeyman, assured him he was free to
look elsewhere, and requested a notice before leaving
Respondent. Corbin promised to give such notice. But
Cronkrite did not ask Corbin how the latter felt about the
Union; in fact Cronkrite told him he did not care how
Corbin felt about the Union. In discussing the absence of a
retirement plan at Converters, Cronkrite said he hoped
that someday Converters would have one.
At the May 23 meeting of employees "it was brought
out" that Intanglio, a Cincinnati "union shop," sought to
transfer some laid-off employees to its Detroit and
Chicago shops but could not do so because unemployed
journeymen in Detroit and Chicago were first required to
be hired.
At the May 27 meeting of employees, Cronkrite was
asked if a straw vote could be taken then and there.
CONVERTERS GRAVURE SERVICE 403
Cronkrite replied in the negative, claiming "it would be
illegal." He also insisted that he did not want to know who
was for or against the Union. However, later in the same
day the results of an "election" were disclosed to him but
not the identity of the voters or how they voted. This
meeting was held after the Union demanded recognition.
D. Concluding Findings and Discussion as to the Refusal
to Bargain
1. As to the Union's majority
An employer is not bound to bestow recognition upon a
union unless it represents an uncoerced majority in an
appropriate unit . Citation of authority upon this branch of
the law would be supererogatory. In view of the admission
in the answer, I find that an appropriate unit consists of
"all employees employed by the Respondent except office
clerical employees and all guards, professional employees,
and supervisors, as defined in the Act." Further, I find
that on May 27, the International and its Local 33-L
requested Respondent to recognize and bargain with them
as the exclusive bargaining representative of
Respondent's employees in said appropriate unit. In this
connection I find that Local 60-P did not join in the
foregoing demand, and that at no time material did Local
60-P take an active part in organizing Respondent's
employees or in demanding recognition.
Further, I find that on May 27, when recognition and
bargaining were requested, the appropriate unit was
composed of 15 employees, viz: Wesley Blythe, Alfred W.
Bradshaw, Jack Brandenburg, Michael R. Casey,
Raymond Casey, William E. Corbin, Richard Diver,
Joseph Fryman, William F. Goertemiller, Garrett E. Haun,
William J. Howard, John S. Kalnai, William A. Miller,
Larry P. Sinkowitz, and James Robinson. I also find that
on May 27, the Unions had in their possession
authorization cards signed by employees Blythe,
Bradshaw, Brandenburg, Michael Casey, Corbin, Howard,
Kalnai, and Sinkowitz, and that these cards designated the
Unions as bargaining agent for the subscribers, and that
these eight cards patently amount to a majority. The
immediate question is whether these cards are valid or
whether one or more is tainted by coercion or substantial
misrepresentation destroying that majority. It is therefore
desirable to examine the circumstances under which each
of said eight employees signed his card.
a. Alfred Bradshaw
I find that Bradshaw was told by President Darner that
his card would be used to obtain recognition from
Respondent and, failing that, it would be used in filing for
an election. Manifestly, Bradshaw was not led to believe
that his card was being solicited only for an election.
Therefore the mention of an election as an alternative if
voluntary recognition was not achieved is colorless to
infect the validity of Bradshaw's card, since an election
was not referred to as the sole purpose of the card.
N.L.R.B. v. Cumberland Shoe Corporation, 351 F.2d 917
(C.A. 6); Bernard Happach v. N.L.R.B., 353 F.2d 629
(C.A. 7).
Nor is a different result indicated because Bradshaw
was told that experience demonstrated that a 70-percent
showing of cards rendered an even chance of winning an
election. This merely demonstrates that the Unions were
anxious to obtain more than a mere majority of the cards to
insure victory if an election were held; but it does not
constitute either misrepresentation or an assertion that the
sole purpose of the cards was to obtain an election.
Lincoln Manufacturing Co., 160 NLRB 1866. Nor is
Bradshaw's card rendered nugatory because he was
solicited to sign at home, for I find that he voluntarily
signed it without coercive conduct on the part of the
solicitors . "The very act of signing ... calls for a finding
that the employee knew what he was doing." Jas. H.
Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8).
Finally, I credit Bradshaw that President Darner told
him the card would be kept confidential and that the
Unions wanted to get from Cronkrite "all the blood we
can." Contrary testimony of the General Counsel is not
credited. I find that no confidence was broken in
presenting Bradshaw's card as an exhibit in this case, for
it is the only way in which the Union's majority can be
established. And the fact that the Union sought to obtain
"all the blood we can" from Respondent amounts to no
more than a campaign representation that efforts will be
made to better wages and working conditions; hence it
does not affect the validity of Bradshaw's card. Conren,
Inc., d/b/a Great Scot Super Market, 156 NLRB 592.
Accordingly, Bradshaw's card will be counted in
computing the number of valid cards possessed by the
Unions on May 27.
b. Jack Brandenburg
This employee signed an authorization card at his home
upon the solicitation of International Representative
Schneider and President Darner of Local 33-L. I find that
Brandenburg was told that the card would be used to
obtain recognition, and if recognition was refused, it would
be shown to an impartial third person to ascertain whether
the Union had a majority, and that if this failed to obtain
recognition, then the card would be used to obtain an
election. Since an election was not mentioned as the sole
purpose of the card, I find it is valid because not obtained
by misrepresentation. Further, I find that Brandenburg
was told that the cards would remain confidential. But I
find no confidence has been betrayed in exposing the card
at the hearing.
Finally, Brandenburg testified that "the main reason"
why he signed the card was because an election was
mentioned to him. However, postevent testimony of a prior
subjective testimony is unreliable to contradict the plain
meaning of the text of an authorization card. N.L.R.B. v.
Freeport Marble & Tile Co., 367 F.2d 371, fn. 2 (C.A. 1).
And the Board has held that a subjective state of mind in
signing a card must be disregarded in circumstances
where fraud, misrepresentation, or coercion are absent.
Gary Steel Products Corporation, 144 NLRB 1160; General
Steel Products, 157 NLRB 636. N.L.R.B. v. Peterson
Brothers, Inc., 342 F.2d 221 (C.A. 5), is distinguishable
because there the employee's thoughts or understanding
were necessary to clear up an ambiguity appearing in the
language on the face of the card.
Accordingly, I find Brandenburg's card is valid and will
be counted in determining whether the Union enjoyed a
majority on May 27.
c. William J. Howard
Another employee who signed an authorization card is
William J. Howard, who was told it would be kept
confidential. This does not destroy its validity. He was also
told that it meant nothing. I do not credit the contrary
evidence of the General Counsel. But this does not destroy
298-668 0-69-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its validity since I find that he was also told it would be
used to request recognition and, failing this, to obtain an
election. I find that Howard was aware of the dual purpose
of the card and that he knew what he was doing when he
signed. Jas. H. Matthews & Co. v. N.L.R.B., supra. Further
I find that Howard was told that the card would remain
confidential and that it would be used to obtain an election
if recognition was not voluntarily granted. Neither
statement vitiates the card, and I so find. N.L.R.B. V.
Cumberland Shoe, supra; N.L.R.B. v. Gotham Shoe
Manufacturing Co., 359 F.2d 684 (C.A. 2); N.L.R.B. v.
Delight Bakery, Inc., 353 F.2d 344 (C.A. 6); S. E. Nichols
Company, 156 NLRB 1201.
Howard was also told that a majority had already signed
authorization cards. Although untrue, this statement does
not destroy 'the validity of the card. Engineers &
Fabricators, 156 NLRB 919; N.L.R.B. v. Sagamore Shirt
Company, d/b/a Spruce Pine Manufacturing Co., 365 F.2d
898; Home Pride Provisions, 161 NLRB 634, fn. 2; Merrill
Axle, 158 NLRB 1113.
Further, I find that Howard was solicited in his driveway
at a time when he had dust returned from a funeral and was
in a hurry to leave. But I find that this does not vitiate the
validity of his card as no improper methods or words were
utilized to induce him to sign. Jas. H. Matthews & Co. v.
N.L.R.B., supra, at 438. Cf. H. Rohstein & Co., 120 NLRB
1556, 1560.
Accordingly, I find that Howard's card is valid and
should be counted.
d. John S. Kalnai
This employee signed an authorization card in his living
room at the solicitation of Union Representatives Darner
and Schneider. I find nothing offensive to the Act because
Kalnai was asked to sign in his home. And I find that
nothing said to him vitiates his designation of the Union,
regardless of whether I credit him or Darner, for they
substantially corroborate each other. One statement made
to Kalnai requires brief comment. Among other things
Kalnai was told that the Union desired to have a card
showing among 75 percent of the employees to insure a
better chance of an election. But this does not imply that
Kalnai was invited to sign only for the purpose of an
election, because he was also told, as he testified, that the
cards would be taken as the "first step" to Respondent to
support a request for recognition and a contract.
Manifestly, Kalnai was aware that an election would be
conducted only if Respondent rejected the cards. Since an
election was mentioned as an alternative if recognition
were denied, which is proper, it was equally lawful to state
that a 75-percent showing of cards would materially aid in
winning an election which might be directed. American
Cable Systems, 161 NLRB 332.
Accordingly, I find Kalnai's card valid and it will be
counted.
e. Michael R. Casey
This employee also signed a union authorization card.
Nothing said to Casey by the union representatives
impugns the validity of his card and I so find . I also find he
is not a supervisor . N.L.R.B . v. Sinko Manufacturing and
Tool Company, 369 F . 2d 226 (C.A. 7).
Perhaps two statements made to Casey deserve brief
comment . Casey was told that , "after the count was
taken ," the cards would be destroyed . This may connote
that the time of their destruction either follows a card-
count recognition without an election or recognition
subsequent to an election . Since the cards were not
applications for membership , no need for their retention
after recognition is necessary. Hence, no misrepresenta-
tion was uttered to contradict the plain language on the
face of the card. This, then, did not impair the validity of
the card. Casey also was told that Cronkrite probably
would not recognize a card count and that this would
necessitate an election . I do not credit the General
Counsel's contrary evidence on this issue. But this does
not constitute a categorical assertion that Casey's card
would be used only for an election; rather it denotes, and
I find, that Casey was put on notice that the card would
serve a dual purpose and that an election was the second
of those purposes. This is proper. N.L.R.B. v. Cumberland
Shoe Corp., supra.
Casey also testified that, when he discovered no election
would be held, he was disappointed. But his thoughts or
afterthoughts in executing the card may not override the
plain language on the card. Gary Steel Products, supra;
N.L.R.B. v. Gotham Shoe, supra; International Union,
U.A.W. v. N.L.R.B., 363 F.2d 702 (C.A.D.C.). Accordingly,
I find Casey's card is valid and it will be counted.
Further, as to Casey and all other employees who
expressed dissatisfaction with signing, I find that none of
said employees sought to withdraw or repudiate his
designation of the Union by communicating the same to
the Union. In such cases the purported withdrawal or
repudiation will not sap the Union's majority because it
was not transmitted to the Union. Jas. H. Matthews & Co.
v. N.L.R.B., supra; Moore's Seafood Products, 152 NLRB
683, 684; Tinley Park Dairy Co. d/b/a Country Lane Food
Store, 142 NLRB 683, 686.
f. Other employees
Employees William E. Corbin, Larry P. Sinkowitz, and
Welsey Blythe also signed union authorization cards.
Nothing in the record undermines the validity of their
cards. Hence, these three cards are found to be valid
designations of the Union and will be counted in
ascertaining whether the Union had a majority on May 27.
N.L.R.B. v. Fritchof A. Fosdal, etc., d/b/a Fosdal Electric,
367 F.2d 784 (C.A. 7).
Respondent vigorously assails the validity of all eight
cards on the ground that Respondent's Exhibit 1, which
admittedly was distributed to employees before they
signed , refers to an election in the opening sentence and
again in the second paragraph. However, this allusion to
an election does not exclude the possibility of other uses of
the cards, such as a request for recognition based upon a
card check. In addition, I find that all employees were
expressly informed that the cards would initially be used
to substantiate a request for recognition and a contract,
and would not be used to obtain an election unless such
request was rejected. Thus, all employees became
cognizant , prior to signing cards, that the initial function of
the cards was to secure recognition and that obtaining an
election was not their sole or only purpose. Since an
election was not the only purpose of the cards, I find that
the allusion to an election in Respondent's Exhibit 1, does
not vitiate them and does not overcome the plain legend on
the cards. Jas. H. Matthews & Co. v. N.L.R.B., supra;
N.L.R.B. v. Cumberland Shoe Corp., supra; N.L.R.B. v.
Gotham Shoe, supra; N.L.R.B. v. Delight Bakery, supra; S.
E. Nichols Company, 156 NLRB 1201.
Finally, the fact that at least one employee was told that
initiation fees would be waived during the organizing
CONVERTERS GRAVURE SERVICE 405
campaign does not vitiate the card of this or any other
employee for whom initiation fees were waived.
Ottenheimer and Company, Inc., 144 NLRB 38, 46; The
Gruen Watch Company, 108 NLRB 610, 612.
Although I have found that on May 27, the Unions
enjoyed an uncoerced majority in an appropriate unit, that
does not dispose of the matter. For if the Employer at the
time of the demand for recognition entertained a good-
faith doubt of a majority, the General Counsel cannot
prevail upon this segment of the case. Hence, the next
question relates to the issue of whether Respondent in
good faith doubted the Union's majority. H & W
Construction Company, 161 NLRB 852.
2. As to the Employer's doubt of a majority
It has been found that the Union represents a majority of
employees (8 out of 15) in an appropriate unit . Ordinarily
this imposes upon Respondent a statutory obligation to
recognize and bargain with the Union regarding
bargainable matters affecting those employees. N.L.R.B.
v. Superior Sales, Inc., 366 F.2d 229 (C.A. 8). But
Respondent seeks to avoid this legislative onus by
contending that it entertained a good-faith doubt as to the
Union's majority, and, therefore, was entitled to withhold
recognition until that majority is established in a Board-
conducted election. Aaron Brothers, 158 NLRB 1077. It is
now elementary that, regardless of a union 's majority
status as disclosed by card authorizations, an employer
may decline to recognize and bargain with an uncertified
union if he entertains a good-faith doubt as to its majority.
N.L.R.B. v. Peterson Bros., Inc., supra; Emma Gilbert, et
al. d/b/a A.L. Gilbert Company, 110 NLRB 2067, 2069;
John P. Serpa, Inc., 155 NLRB 99. On this issue the
burden of proof rests upon the General Counsel to
establish bad faith. Aaron Brothers, supra; John P. Serpa,
supra; H & W Construction Co., supra.
Respondent first seeks to show a good-faith doubt in
President Cronkrite's testimony that many employees told
Vice President Wortley that they signed cards because
they thought "it was for a vote." But not one of these
employees has been identified, so that this testimony
carries little probative value. Apart from this, however,
this hearsay testimony of Cronkrite contradicts Wortley's
own testimony that employees who told him they did not
want a union did not mention whether they had signed a
card and he, Wortley, did not know of a single employee
who had signed a card. Hence I do not credit Cronkrite
that Wortley told him that employees had signed cards
under the impression that it was for a vote. Accordingly,
no reasonable basis exists on this testimony to question
the Union's majority.
Moreover, even if I credit Cronkrite as to what Wortley
told him it would not follow that Cronkrite was reasonably
warranted in concluding that the Union lacked a majority.
At most this would disclose that some employees had
signed under a misapprehension . But signing under a
misapprehension is nevertheless a valid signing until the
employee repudiates his card. Phil-Modes, Inc., 159
NLRB 944; Moore's Seafood, supra; Tinley Park Dairy,
supra. Since no employee, on Cronkrite's own testimony,
told Wortley that he repudiated or withdrew his
designation of the Union by signing a card, it was not
reasonable for Cronkrite to infer want of union majority
under the circumstances.
Secondly, Cronkrite testified credibly2 that he told the
union representatives that he doubted the Union's
majority. However, he did not tell them why. It is not
necessary to decide whether a naked assertion of doubt
comports with good faith. Cf. N.L.R.B. v. C. J. Glasgow
Company, 356 F.2d 476, 479 (C.A. 7). However, I find
absence of good faith in this statement to the union
representatives on Cronkrite's own testimony that he
based this doubt on comments of employees made to him
and to Vice President Wortley that "they did not want
union representation." But since Cronkrite did not state
how many employees who had signed cards had so
informed him, there is no reasonable showing that the
Union' s claim of majority has been undermined. N.L.R.B.
v. Superior Sales, supra. Further, Cronkrite testified
credibly that he did not "have any reasonable basis" to
question the claim of Schneider and Darner that they had
in their possession at that time cards signed by a majority
of the employees. It is also significant that Cronkrite did
not ask to see such cards in the face of a claim of majority.
Cf. N.L.R.B. v. Armco Drainage & Metal Products, 220
F.2d 573 (C.A. 6). "Where, as here, the Union had proof of
its majority status readily available and [Respondent]
chose not to learn the facts, it took the chance of what they
might be." Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d
432 (C.A. 8). Accord: Irving Air Chute Company v.
N.L.R.B., 350 F.2d 176, 182 (C.A. 2); N.L.R.B. V. C. J.
Glasgow Co., supra. In my opinion, Indiana Rayon
Corporation v. N.L.R.B., 355 F.2d 535, 539-540 (C.A. 7),
does not govern the instant case because of its dissimilar
facts.
Then, again , Respondent contends that a poll of
employees, sponsored by the employees themselves on
May 27 following the Union's demands for recognition,
demonstrates a solid premise for questioning the Union's
majority. However, this poll occurred after the Union's
demand for recognition. But the crucial time for
establishing a good-faith doubt is when a demand for
recognition has been made. A shift in employee sentiment
after that event will not justify a refusal to recognize
because once a bargaining relationship becomes
operative, both parties must honor it for a reasonable
period thereafter. Frank Bros. Company v. N.L.R.B., 321
U.S. 702, 705; N.L.R.B. v. P. Lorillard Company, 314 U.S.
512, 513; Ruffalo's Trucking Services, 114 NLRB 1549.
Similar considerations apply to Darner's testimony that
several employees asked him, after the instant charge was
filed, to withdraw the charge and proceed with an election.
Further, Respondent relies on Vice President Wortley's
testimony, which I credit, that (a) about 11 employees had
told Pin that they had been approached at their homes by
untoil representatives and solicited to sign authorization
cards, and (b) one employee wished an election would be
held "to get it over with" because he was tired of being
bothered at home. Yet soliciting at an employee's home is
not improper. And, even assuming that the employee who
wanted an election had a change in sentiment towards the
Union, nowhere in the record is there evidence that this
employee had signed a card-indeed Wortley testified that
he did not know whether even one employee who spoke to
him had signed a card. In any event, a designation of a
2 As a trier of fact, I may credit a witness in part only, as I have
done as to Cronkrite, Darner, Schneider, and others Felix
MacKevtcius, et al d/b/a Brighton Bakery, 158 NLRB 512, fn 1,
N L.R B v United Brotherhood of Carpenters and Joiners of
America , Local 1016 (Gil Wyner Contr Co), 230 F 2d 256, 259
(C A 1)
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union will not be considered withdrawn , revoked, or
renounced until the employee so informs the Union.
Moore's Seafood, supra; Tinley Park Dairy , supra; Phil-
Modes, Inc., supra . Therefore , Wortley was not presented
with defections among, or improper solicitations of,
employees which reasonably justified Respondent in
expressing a good -faith doubt of the Union 's majority.
Finally, the fact that campaign literature distributed by
the Union to employees referred to an election will not
support a claim of good -faith doubt of majority . This is
because (a) Cronki ite at no time advanced this reason on
May 27, when recognition was requested, and
(b) Cronkrite was specifically informed by the union
representatives that an election would not be held unless
he refused to abide by a card check.
If material , I find that the union representatives did not
offer Cronkrite a chance of one of three alternatives, one
of which was an election . If this were the case, then his
choosing to proceed to an election would be lawful and I
would find no illegal refusal to recognize . Cf. N.L.R.B. v.
Fosdal Electric, supra . But I expressly find that Cronkrite
was told that an election would be petitioned for only if he
declined to accept a card check by the Union or an
impartial third person . In such case Respondent is bound
to recognize the Union if in fact it enjoys a majority and
may not insist upon an election . Cf. Maphis Chapman
Corporation v. N.L.R .B., 368 F . 2d 298 (C.A. 4).
Summing up, I find that "This good faith doubt must
have some reasonable basis and is not established merely
by the employer's assertion of doubt of majority."
N.L.R.B. v. Superior Sales, Inc., supra. See Vinylex
Corporation , 160 NLRB 1883 . And slimness of majority
will not uphold a claim of doubt absent evidence that
Respondent had knowledge of the number of cards signed.
Superior Sales, Inc., supra.
E. Concluding Findings and Discussion as to Interference,
Restraint , and Coercion
1. The speech of May 23
When it "became evident [to Respondent's president,
Cronkrite] that it was a strong [union] campaign," he
assembled the employees in the plant during working
hours. Characterizing this as a "captive audience," the
General Counsel contends that Cronkrite's remarks
contain coercive statements . While both the General
Counsel's and Respondent's testimony substantially
coincides upon this aspect of the case, I credit Cronkrite
where conflict, if any, exists in the testimony.
It is not necessary to reiterate Cronkrite's speech here,
for it is summarized elsewhere above. While I find that
Cronkrite spoke against the Union, described some
disadvantages likely to ensue as a result of contract
provisions usually required by unions, and pointed out
existing advantages which might be lost because of union
rules or contract provisions prohibiting or limiting the
same, I find that Cronkrite did not utter anything which
exceeds permissible limits set by Section 8(c) of the Act.
For Section 8(c) sanctions expressions of opinion which
belittle unions and aggrandize employers, so long as such
expressions are free of threats of reprisals and promise of
benefits. N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4);
N.L.R.B. v. Howard Quarries, Inc., 362 F.2d 236 (C.A. 8).
Further, I expressly find that Cronkrite made no threats of
reprisals or promises of benefit in said speech, and did no
more than compare present conditions, which he praised,
with probable union demands, which he denounced
because they would adversely affect existing conditions
then enjoyed by the employees. Babcock & Wilcox Co., 77
NLRB 577, 578. Also, I find that he did not threaten
reprisals but rather predicted consequences beyond his
control. Syracuse Color Press, Inc., 103 NLRB 377, 378.
Nor is a different conclusion required because
Cronkrite in his speech invited inquiries from the
assembled employees either there or in his office,
mentioning that his door was always open. I find this
language to be innocuous under Section 8(c) of the Act.
And it is not unlawful to compel employees during working
hours to attend a meeting where employer antipathy to the
Union is expounded. Hence, I find no interference,
restraint, or coercion in the fact that Cronkrite on May 23,
addressed a "captive audience." Babcock & Wilcox,
supra; Livingston Shirt Corporation, 107 NLRB 400, 406.
Accordingly, I shall recommend that paragraph 5(a)(i) be
dismissed.
2. Interrogation
Paragraph 5(a)(ii) alleges that Cronkrite illegally
interrogated employees in his office. On this branch of the
case I find as follows:
About May 25, President Cronkrite invited to his office
employee William Corbin. Referring to the fact that the
Union was conducting a campaign, Cronkrite went on to
say that he did not know how Corbin felt about the Union.
Corbin responded that it sounded like a pretty good deal to
him because, among other things, the Union had a
retirement plan whereas Respondent lacked one. This
prompted Cronkrite to note that Respondent was
considering a retirement plan and that Corbin was better
off as he received a bonus and overtime and had no union
dues to pay. Cronkrite also asked Corbin what he thought
of the Union. Respondent's evidence not consonant with
the foregoing is not credited.
But I find no illegal interrogation in the first part of the
foregoing conversation of Cronkrite. While it is true that
Cronkrite stated he did not know how Corbin felt about the
Union, I am unable to find that this is a question, or, if it is,
that it constitutes a coercive prying into Corbin's
sympathies or attitudes toward the Union. "A company
has a right to interrogate employees for purely
informational purposes." N.L.R.B. v. Great Atlantic &
Pacific Tea Company, 346 F.2d 936, 940 (C.A. 5). Accord:
N.L.R.B. v. Tennessee Coach Company, 191 F.2d 546
(C.A. 6); N.L.R.B. v. Armco, supra. But Cronkrite also
asked Corbin what he thought about the Union. I find this
latter question coercive and, therefore, unlawful under
Section 8(a)(1). Johnnie's Poultry Co., 146 NLRB 770,
773-775, reversed on factual grounds 344 F.2d 617
(C.A. 8); Skyline Homes, Inc. v. N.L.R.B., 323 F.2d 642,649
(C.A. 5). See Bonnie Bourne d/b/a Bourne Co. v. N.L.R.B.,
332 F.2d 47 (C.A. 2).
However, I find no promise of benefit in Cronkrite's
statement that Respondent was considering a retirement
plan, as no promise, express or implied, is discernible in
this remark.
3. The employee poll of May 27
Following the union demand of May 27, President
Cronkrite on the afternoon thereof assembled the
employees during working hours to inform them of that
demand and to discuss it. During the ensuing discussion
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 407
an employee asked if a vote could be taken right then and
there on the question of union representation . Cronkrite
replied he could not do so, as it would be illegal , but added
that the employees could do what they wished. When
Cronkrite left employee Casey took a vote in the manner
described elsewhere in this Decision and announced the
result thereof to Conkrite.
Although I find that Cronkrite did not initiate or
instigate the poll , so that Mid- West Towel and Linen
Service, Inc., 143 NLRB 744, 751, does not apply, I find
that Cronkrite authorized it to be taken in the plant. But
this alone will not render it illegal absent threats of reprisal
or promises of benefit by Cronkrite . Gulf Container
Corporation , 161 NLRB 734 ; Industrial Stationery &
Printing Company , 103 NLRB 1011 , 1016-17. And I find
that Cronkrite made no such threats or promises at the
time, that he did not participate in the poll, and that it was
not conducted to enable him to ascertain the number and
identity of those supporting the Union . Hence I find the
poll was not unlawful . See Blue Flash Express, Inc., 109
NLRB 51; Burke GolfEquipment Corporation , 127 NLRB
241, 245.
Accordingly , I shall recommend that paragraph 5(b) of
the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
I find that the refusal to bargain did not extend to Local
60-P, since that local neither made a demand for
recognition upon Respondent nor actively sought to
organize the employees involved . Hence the bargaining
order recommended below will not contain any provision
requiring that Respondent recognize and bargain with said
Local 60-P.
But as it has been found that Respondent has engaged
in certain unfair labor practices prohibited by Section
8(a)(1) and (5) of the Act, it will be recommended that
Respondent cease and desist therefrom and that it take
specific action, as delineated below, designed to effectuate
the policies of the Act. However, Respondent's conduct in
my opinion is not flagrant and does not depict a general
hostility to the Act, so that a remedy broad in scope is not
warranted. The remedy adopted should be commensurate
with the violations found. Accordingly, I find that an order
is appropriate which is limited to enjoining the conduct
found to be objectionable under the Act and similar or like
conduct.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. By coercively interrogating an employee as to his
union membership, sympathies, or desires, Respondent
has engaged in an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
4. All employees employed by Respondent except
office clerical employees and all guards, professional
employees, and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Sections 8(a)(5) and 9 of
the Act.
5. On May 27, 1966, and at all times material thereafter,
the International and its Local 33-L, jointly represented a
majority, and jointly have been the exclusive bargaining
representative , of all the employees in the aforesaid
appropriate unit for purposes of collective bargaining
within the meaning of Sections 8(a)(5) and 9 of the Act; and
Respondent was on that date, and has been since, legally
obligated to recognize and bargain with said International
and its Local 33-L as such.
6. By refusing to recognize or bargain with said
International and its Local 33-L for employees in said
appropriate unit on and since May 27, 1966, Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(5) and, derivatively, of Section 8(a)(1) of the
Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
8. Respondent has not committed any other unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondent, its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize or bargain with the
International and its Local 33-L jointly as the exclusive
bargaining representative of all the employees in the
above-mentioned appropriate unit.
(b) Coercively interrogating its employees as to their
union membership, sympathies, and desires.
(c) In any like or similar manner interfering with,
restraining , or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request , bargain collectively with the
International and its Local 33-L jointly as the exclusive
representative of all employees in the aforesaid
appropriate unit and, if an understanding is reached,
embody such understanding in a written, signed
agreement.
(b) Post at its premises at Middletown, Ohio, copies of
the attached notice marked "Appendix."3 Copies of said
notice, to be furnished by the Regional Director for Region
CONCLUSIONS OF LAW
1. Lithographers and Photoengravers International
Union, AFL-CIO, and its Local Unions Nos. 33-L and
60-P, AFL-CIO, each is a labor organization within the
meaning of Sections 2(5) and 8(a) of the Act.
2. Respondent is an employer as defined in Section 2(2),
9 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
408 DECISIONS OF NATIONAL
9, after being duly signed by an authorized representative,
shall be posted by Respondent, immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.4
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
4 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read `Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL , upon request, bargain collectively with
Lithographers and Photoengravers International
Union, AFL-CIO, and its Local Union No. 33-L,
jointly as the exclusive bargaining representative of
all employees in the bargaining unit described below
LABOR RELATIONS BOARD
with respect to rates of pay, wages, hours of
employment, and other conditions of employment
and, if an understanding is reached, embody such
understanding in a written , signed agreement. The
bargaining unit is:
All our employees except office clerical
employees and all guards, professional
employees, and supervisors as defined in the Act.
WE WILL NOT coercively interrogate our employees
as to their union membership, sympathies, or desires.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed to them by Section 7
of the Act.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of said
Unions or any other labor organization.
CONVERTERS GRAVURE
SERVICE, INC.
(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, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684x3663.