Dawson Metal Products, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1970

183 N.L.R.B. 191 (N.L.R.B. 1970)

DAWSON METAL PRODUCTS, INC.
Dawson Metal Products , Inc. and Local Lodge 1316,
International Association of Machinists &
Aerospace Workers, AFL-CIO. Cases
17-CA-3686 and 17-RM-397
June 10, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On April 21, 1969, Trial Examiner Richard D.
Taplitz issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
other unfair labor practices alleged in the com-
plaint and recommended that such allegations be
dismissed. Finally, the Trial Examiner found that
certain conduct of Respondent after the petition in
Case 17-RM-397 was filed interfered with the elec-
tion, and recommended that the election be set
aside and the petition dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision, a supporting brief, and a supplemental
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified below,
We agree with the Trial Examiner's findings that
Respondent violated Section 8(a)(1) of the Act by
unlawful interrogation, promises of benefits,
threats, and telling an employee that Respondent
would not hire individuals with union backgrounds.
' Thus, the Trial Examiner found and the record shows that Foreman
Rogers threatened employee Anderson with respect to the consequences of
his union support, Pfant Superintendent Paufie and Foreman Rogers
promised benefits to Anderson and employee Jackson if the Union were re-
jected, Foreman Rogers and Paulie coercively interrogated employees An-
derson, White, Jackson, McAllister, and Neftzger, and Personnel Manager
Kuhlmann stated repeatedly to his secretary that Respondent would not
hire union sympathizers
' On June 12, 1969, Respondent filed a motion to reopen the record and
receive in evidence a letter dated May 27, 1969, purportedly signed by a
number of Respondent's employees, stating that they did not want to be
191
We also agree that Respondent's refusal to bargain
on and after August 27, 1968, with the Union
which represented a majority of Respondent's em-
ployees in the appropriate unit violated Section
8(a)(5) of the Act.
On June 16, 1969, the Supreme Court of the
United States issued its decision in N.L.R.B. v. Gis-
sel Packing Company, 395 U.S. 575, affirming
generally the Board' s use of authorization cards in
determining a union 's majority status, and the
Board's power to issue a bargaining order based
upon such showing, where the employer's unfair
labor practices had a tendency to undermine the
union 's majority and impede the election process.
In the light of the standards set forth in the
Supreme Court's decision in Gissel, we find that by
refusing to bargain with the Union and by engaging
in a series of unfair labor practices to undermine
the Union's majority status, Respondent violated
Section 8 (a)(5) of the Act. In so finding, we note
that the unit is small , the unlawful conduct was en-
gaged in by the plant superintendent and personnel
manager as well as by a foreman,' and the first elec-
tion was so close that the shift of but two votes
could have produced a union victory. In these cir-
cumstances, we find that the coercive effects of
Respondent' s unfair labor practices cannot be
eliminated by traditional cease-and-desist remedies
and were of such a nature as to make a fair election
doubtful, if not impossible. Consequently, we find
that the purposes of the Act can better be effectu-
ated by reliance on the employees' desires as ex-
pressed by signed authorization cards than on the
results of a rerun election, and that issuance of a
bargaining order is appropriate.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that Respondent, Dawson Metal Products, Inc.,
Camdenton, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order as
modified below.'
represented by the Union The General Counsel filed an opposition to the
motion The motion is denied Assuming that the proffered evidence would
show that the Union no longer represented a majority in the appropriate
unit, Respondent cannot , in view of its serious unfair labor practices, rely
on the Union's loss of majority status as a justification for its refusal to bar-
gain To do so "would, in effect, be rewarding the employer and allowing
him 'to profit from [his] own wrongful refusal to bargain - N L R u v
Gissel Packing Company, supra
'In fn 17 of the Trial Examiner's Decision substitute the word "Judg-
ment" for "Decree" wherever it occurs
183 NLRB-No. 25
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if IS FURTHER ORDERED that all alleged violations
not herein found, as well as the petition in Case
17-RM-397, be, and the same hereby are,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Trial Examiner: This is a
consolidated proceeding on a complaint of unfair
labor practices, as amended at the hearing, against
Dawson Metal Products, Inc., herein called
Respondent, alleging violations of Section 8(a)(1)
and (5) of the National Labor Relations Act, as
amended, and on objections to the conduct of an
election in which Respondent's employees par-
ticipated, which objections involve in part the same
alleged misconduct of the Respondent set forth in
the complaint.
In Case 17-CA-3686 a charge was filed on Oc-
tober 1, 1968,' against Respondent by Local Lodge
1316, International Association of Machinists &
Aerospace Workers, AFL-CIO, herein called the
Union. The complaint issued on November 19 and
as amended at the hearing alleged that Respondent
through its agents interfered with its employees'
rights guaranteed in Section 7 of the Act by the use
of threats of harm and promises of benefit related
to union activities, by interrogation of employees,
by creating the impression of surveillance, by blam-
ing the Union for its failure to grant pay raises, and
by informing employees that job applicants were
being rejected because of their union connections.
In addition the complaint alleged that Respondent
unlawfully refused to bargain with the Union as the
representative of its production and maintenance
employees. In its answer Respondent denied the
commission of any unfair labor practices.
In Case 17-RM-397 Respondent filed a petition
on September 3 seeking an election in a unit of its
production and maintenance employees. Pursuant
to a Stipulation for Certification Upon Consent
Election executed by all the parties, an election was
held on September 25 among Respondent's produc-
tion and maintenance employees at its Camdenton,
Missouri, plant. The employees cast 13 votes for
the Union and 15 against the Union. There were no
void or challenged ballots. Thereafter on Sep-
tember 27 the Union filed timely objections to the
conduct of the election. After investigation of the
objections the Regional Director for Region 17 of
the Board concluded that the objections included
, All dates are in 1968 unless otherwise specified
'Both General Counsel and Respondent filed motions to correct the
transcript of the record. Neither objects to the motion of the other except
in one limited particular Respondent objects to that part of the General
Counsel's motion that would change the name "Order' to "OrdellJones"
on page 215, line 4 of the transcript Except as to that one item to which
there is an objection , both motions are granted . The corrections are set
matters which were also the subject matter of the
complaint in Case 17-CA-3686 and that substan-
tial and material issues of fact and law had been
raised by the objections which could best be
resolved on the basis of record testimony. Ac-
cordingly, by order dated November 21, the Re-
gional Director consolidated Case 17-RM-397 with
Case 17-CA-3686 and further ordered that, after
hearing , ruling , and decision by a Trial Examiner,
Case 17-RM-397 be transferred to and continued
before the Board in Washington, D.C.
A hearing was held before me in Camdenton,
Missouri, on January 7 and 8, 1969, in which all
parties were given full opportunity to participate,
adduce evidence, examine and cross-examine wit-
nesses, and argue orally. Thereafter, briefs, which
have been carefully considered, were filed on be-
half of the Respondent and the General Counsel.
Upon the entire record2 in the case and from my
observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Kansas corporation, maintains an
office and factory at Camdenton, Missouri, herein
called the plant, where it is engaged in the business
of manufacturing various metal products. In the
course of its business at the plant Respondent an-
nually sells goods valued in excess of $50,000
directly to customers located outside the State of
Missouri and annually purchases goods and services
valued in excess of $50,000 directly from sources
outside the State of Missouri.
The complaint alleges , the answer admits, and I
find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer as amended at
the hearing admits , and I find that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE
OBJECTIONS TO THE CONDUCT OF THE ELECTION
A. The Alleged Violations of Section 8(a)(1) of the
Act
forth in Appendix A of this Decision (Omitted from publication ) Included
in these corrections is one which was overlooked by the parties in their mo-
tions On page 8, line 20, the word "proclaimed" is corrected to read "of
the complaint." A number of additional corrections could properly have
been made, but because the errors are obvious and the sense nevertheless
discernible from the uncorrected text, I have refrained from enlarging the
list of corrections
DAWSON METAL PRODUCTS, INC. 193
1. The conversations with Respondent's President
Dawson
Richard W. Dawson is president of Respondent
and an admitted supervisor within the meaning of
the Act.3 Dawson's conversations with four em-
ployees were offered by the General Counsel to
support allegations in the complaint that Respon-
dent violated Section 8(a)(1) of the Act. These em-
ployees were: Donald Danuser, Harley White, Gary
McAllister, and Larry Harris.
a. Danuser
Facts
Donald Danuser is a machine worker who has
been in the employ of Respondent since 1967. He
was a key employee in the Union 's organizational
drive. In July or August he spoke to a group of em-
ployees about the Union; he arranged for the union
representative , Eugene Eyink, to speak to the em-
ployees; he obtained authorization cards from the
Union; and he solicited employees to sign them.
When Danuser was hired he was told by Dawson
that he would get a raise at the end of 60 days,
another at the end of 6 months, and another at the
end of a year. At the end of his first year of employ-
ment he did not receive the raise because he had
failed to purchase tools that were needed for the
job and because of his repeated tardiness in report-
ing for work. About September 6, which was 2
weeks after Danuser signed an authorization card
for the Union, about 2-1/2 weeks before the elec-
tion , and about 1 month after his completion of a
year's employment, Danuser approached Super-
visor Jack Kuhlmann and asked whether he could
have the dime raise which he had not received at
the end of his year. Kuhlmann answered that he
would -get Respondent's president, Dawson. Kuhl-
mann left and a little while later Dawson came to
where Danuser was standing and had a conversa-
tion with him. Shortly after the conversation began
Supervisor Ralph Paulie joined the discussion.
Danuser asked Dawson for the 10-cent raise.
Dawson answered that he could not do anything at
the moment about the wage increase because "all
wages were frozen pending this union litigation or
union activity or question." Though Danuser
testified that Dawson said , "Don, I cannot give you
this raise on account of the Union," it is clear from
what followed that both Dawson and Danuser un-
derstood that the remark was relating to the pen-
dency of the election .' Dawson took Danuser to the
bulletin board and showed him a notice to em-
ployees from the National Labor Relations Board,
pointing out that portion which stated that em-
ployers were prohibited from "making promises of
promotions, pay raises, or other benefits, to in-
fluence an employee vote, by a party capable of
carrying out any such promise." Dawson then took
Danuser to the outer office where clerical work was
done and showed him a letter from the Union dated
August 26 which said in part "Please treat this
request for recognition as the majority representa-
tive of the employees in said unit as a continuing
request; and in the interim, it is expected and
requested that all matters remain unchanged unless
a mutual understanding has been reached with the
union." In this conversation Dawson told Danuser
that he was satisfied that Danuser was doing a
better job with the tardiness and Danuser had now
bought the tools he needed, so that the two basic
reasons for withholding the wage increase no longer
existed and the only thing standing in the way was
the union litigation which prevented him from
doing anything about a raise. Supervisor Paulie
credibly testified that Dawson told Danuser that he
(Dawson) did not feel there should be a union, that
a union was not needed to settle differences with
the employees because they were always free to
come to his office, and that he had always gotten
along very well with the employees. Letha Mor-
rison, who worked in the outer office, overheard
part of the conversation and in effect corroborated
Paulie. She testified that Dawson said, "Why would
you want some outside representative to come in
and represent the employees here when I have al-
ways been ready to talk with you. You can come to
me any time rather than go through a bargaining
agent." Though Morrison's original testimony was
that she heard Dawson ask Danuser why he wanted
a union, her further explanation as quoted above
indicates that Dawson was merely stating his posi-
tion with regard to the Union rather than inter-
rogating Danuser concerning any union activities.
As to other parts of the conversation there is a
sharp conflict in testimony. Danuser testified as fol-
lows: Before entering the outer office Dawson
asked Danuser how he felt about the Union.
Danuser answered that the way things were he was
100 percent for the Union. Dawson told Danuser
that if Danuser would go up there and help vote the
Union down that Dawson would see to it that
Danuser got his dime raise. Danuser replied that he
would not be the only one voting in the election
and that Dawson would have to do something for
the rest of the boys. Dawson answered that he had
helped the community by moving to the plant and
that if Danuser got out there and helped vote the
Union down Dawson would schedule raises as he
had done before. Danuser did not remember
whether Paulie was standing there during this part
of the conversation.
' The complaint alleges and the answer admits that the following persons
are supervisors within the meaning of the Act Ralph Paulie, plant superin-
tendent , LeRoy Rogers, foreman, and Earnestme Perkins, welding super-
visor
' On cross-examination Danuser expanded his testimony by
acknowledging that Dawson told him that raises could not be granted dur-
ing the pendency of the election
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dawson categorically denied that he ever asked
Danuser how he felt about the Union or told him
that he would get a raise if he helped to vote the
Union down. He further testified that Paulie was
present during the entire conversation except for
the first few minutes prior to his taking Danuser to
the bulletin board. Paulie testified that he was
present except for the initial part of the conversa-
tion. Paulie also denied that Dawson asked Danuser
how he felt about the Union or told him that he
would get a raise if he voted against the Union.
I credit Dawson's denial that he asked Danuser
what he thought about the Union or that he told
Danuser that he would get a raise if he helped vote
the Union down. Danuser was not a reticent person
and his intense advocacy of the Union was open
and forthright. As is discussed further below,
Danuser testified that about a week before the elec-
tion he asked Supervisor Earnestine Perkins if she
had a handkerchief because the election was going
to be held shortly. In this context Dawson's
testimony that he knew that Danuser was leading
the organizational drive for the Union was credible
as was Paulie's testimony that he knew that
Danuser was one of the Union's leading people.
With this background it would have been
meaningless for Dawson to ask Danuser how he felt
about the Union. Dawson did tell Danuser why he
was against the Union and Danuser may have mis-
interpreted a rhetorical question, which was part of
Dawson's statement of position, as an interrogation.
However, I do not believe that Dawson did inter-
rogate Danuser. As to the alleged statement by
Dawson that he would get Danuser the raise if
Danuser voted against the Union, I also credit
Dawson. The statement was allegedly made a few
weeks before the election during a time of exten-
sive campaigning. Danuser may or may not have
been trying to set up Dawson for the future filing of
objections or charges, but Dawson, who was fairly
sophisticated in labor relations and who had been
advised by counsel, must have considered such a
possibility when he was speaking to the chief union
adherent. An employer would not have to be as
knowledgeable as Dawson to realize the danger of
attempting to buy Danuser's vote with the promise
of a raise, or to know that such an attempt would
be an exercise of futility. In sum I credit Dawson's
denial that he attempted to purchase Danuser's
vote.5
Conclusions as to Danuser
As I have found that Dawson did not interrogate
Danuser about his union sympathies and did not
promise Danuser a raise if the Union was rejected, I
' The Respondent in its brief states that Danuser should not be credited
in part because of his failure to complete his application for a job at the
time of his hire with regard to such matters as prior injuries On the other
hand the General Counsel urges that Dawson should not be credited
because about a year before the incident in question he interrogated em-
will recommend that the parts of paragraphs 9(d)
and (h) which allege such conduct be dismissed.
With regard to paragraph 9(g) of the complaint
which alleges that Respondent unlawfully shifted
the onus of the Company's failure to grant a wage
increase on to the Union, I will also recommend
dismissal. I have found that Dawson did tell
Danuser that the raise was not forthcoming because
of the pendency of the election. Though this is not
the same as blaming the Utiion for the failure to
grant the wage increase, in certain circumstances
such remarks would be a violation of the Act. The
employees have the right under Section 7 of the
Act to participate in the election procedure and an
employer has no right to predicate either the grant-
ing or withholding of any benefit on the exercise by
employees of their rights under the Act. The Board
has recently found that an employer interfered with
the free choice of the employees in an election by
making statements to employees concerning wage
increases being withheld because of the pending
election. Alton Bcx Board Company, 173 NLRB
744. As the Board held in The May Department
Stores Company, d/bla Famous-Barr Company, 174
NLRB No. 109:
... An employer confronted with a union or-
ganizing campaign should decide the question
of granting or withholding benefits as he would
if a union were not in the picture; if his course
of action in granting or withholding benefits is
prompted by the Union's presence, he violates
the Act.
Ordinarily an employer is free to unilaterally grant
wage increases if there is no duty to bargain at the
time the wage increases are granted and the deci-
sion to grant the wage benefits is not prompted by
the union's presence. SNC Manufacturing Co., Inc.,
174 NLRB No. 31. However, an employer who
grants a wage increase during the pendency of an
election may be in the position where he has to jus-
tify the wage increase in terms of established past
practice in order to defend against the contention
that the Union's presence prompted the wage in-
crease. In the instant case Respondent's past prac-
tice regarding wage increases could not have been
used to justify granting Danuser a wage increase as
the wage increase had been already delayed sub-
stantially beyond the time it was due. Respondent
indeed was on the horns of a dilemma when
Danuser asked for a raise a few weeks before the
election. If Respondent granted the wage increase it
would have had great difficulty in justifying the
raise in terms of past practice and a finding might
well have been made that Respondent violated the
Act. Instead Respondent denied the wage increase
and now faces the allegation that a violation of the
ployee White about the Union as is more fully set forth below I find neither
of these arguments convincing and my credibility resolutions are based on
my view of the logic of the situation and on my observation of the
demeanor of the witness
DAWSON METAL PRODUCTS, INC.
Act stemmed from this denial. Another factor must
also be considered. The Union in its letter of Au-
gust 26 in which it demanded recognition in effect
notified Respondent that it represented the em-
ployees and requested Respondent not to make any
unilateral changes in wages, hours, or terms and
conditions of employment. If the General Counsel
is correct in his contention that Respondent has
had the duty to bargain with the Union since the
demand for recognition , any wage increase made
unilaterally after the duty to bargain arose would
have been an additional violation of Section
8(a)(5) of the Act. To follow the General Coun-
sel's theory through, Respondent would have vio-
lated Section 8(a)(5) of the Act if it unilaterally
granted Danuser the wage increase . It would seem
anomalous to find a violation of Section 8(a)(1) of
the Act stemming from Respondent's failure to
grant the increase. Under all these circumstances I
do not believe that Dawson's statements to
Danuser, in which the pendency of the election was
given as a reason for not granting a wage increase,
violated Section 8(a)(1) of the Act.
b. White-facts and conclusions
Harley White has been an employee since Sep-
tember 3. About a year before his date of hire he
had unsuccessfully applied for work with Respon-
dent. At that time Dawson asked him if he was a
union organizer.' White testified that between Sep-
tember 3 and 14, after Dawson had given a speech
to a group of employees, Dawson approached him
and asked him how he liked the job and how he felt
about the Union. Dawson acknowledged that he
told White that the Company's position was that a
union was not needed but he specifically denied
that he asked White his opinion about the Union.
He testified that White volunteered the information
that he (White) did not think a union was needed
without any probing or questioning on Dawson's
part I credit Dawson 's denial. I believe Dawson's
assertion that he was very sensitive to the legal is-
sues that could be raised shortly before the election
and that he was extremely careful not to interrogate
his employees concerning their union feelings.
White was a very straightforward witness but he
might mistakenly have implied a question from
Dawson 's statement of position.
As I have credited Dawson's denial- that he inter-
rogated White about his union sympathies, I will
recommend that the part of Section 9(d) of the
complaint that so alleges be dismissed.
c. McAllister-facts and conclusions
Gary McAllister was employed in the miscellane-
ous department on August 27. About September
" Dawson 's recollection of this conversation was that he asked White if
he was a paid union organizer This mcidentt is well outside the period of
limitation set forth in Section I0(b) of the Act and is not alleged as a viola-
195
11, McAllister had a conversation with Dawson in
which McAllister complained that employees who
were hired after he was were put on more difficult
machines . As a result of his conversation, McAl-
lister was put on the night shift, operating a more
difficult machine, instead of the day shift where he
had previously worked. This was done after McAl-
lister expressed his willingness to Dawson to accept
the new assignment . Thereafter , because of certain
family difficulties, McAllister decided he would
rather be back on the day shift. On the night of the
election, September 25, he approached Dawson,
told him his family problem, and asked to be put
back on days. Dawson testified that he told McAl-
lister that he could not give him an answer just then
but he would try to help him and that later an open-
ing did arise and McAllister was transferred to
days. McAllister testified that Dawson said, "Well,
the election is in process. I can't make any state-
ment at all. I mean I can't tell you what I can do for
you because of the fact that the final returns of the
Union haven't been tabulated." As this was the
night of the election and Dawson had previously
taken the position that changes had to be
suspended during the election period, I credit
McAllister's amplification of Dawson 's remark that
any change had to wait until after the election.
McAllister interpreted this remark to mean that
Dawson would not have any say as to whether he
worked on the day shift if the Union won the elec-
tion. However, further in his testimony he stated
that such an interpretation on his part was merely a
speculation . In the context of the entire situation, I
find that Dawson's remark simply indicated that he
did not think the decision on a transfer would be
appropriate on the night of the election.
Having so found , I will recommend that para-
graphs 9(f) and (k) which allege that Respondent
promised to put an employee on the day shift if the
Union were rejected and transferred an employee
to the day shift because the Union was rejected be
dismissed.
d. Harris-facts and conclusions
Employee Larry Harris had a conversation with
Dawson about October 4, which was about a week
after the election. Harris testified as follows:
Dawson approached him and said that he had heard
that Harris had voted for the Union. Harris replied,
"Someone must have told you ." Dawson answered
that he thought that he had. been pretty good to
Harris and now Harris had turned against the Com-
pany.
Dawson testified that he spoke to Harris because
he saw that something was bothering Harris and
Harris did not have his old spark. According to
Dawson , he asked Harris what was wrong, why he
non in the complaint As background evidence , it does not appear that the
discrepancy between the two versions is significant
427-258 O-LT - 74 - 14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had lost interest in his work , and why he was bitter
toward the Company ; Harris just shrugged his
shoulders and the Union was not mentioned.
I credit Harris' version of the conversation. As is
more fully set forth below , Dawson considered em-
ployee bitterness toward the Company and em-
ployee joining of a union to be synonymous con-
cepts. The remarks are not " out of character" for
Dawson and Harris' testimony was convincing.
However Dawson 's statement that he heard Har-
ris had voted for the Union and the implication that
Harris was not loyal to Dawson fell short of
establishing that Dawson violated Section 8(a)(1)
of the Act . The remarks were not accompanied by
any threat or promise and did not even necessarily
call for an answer from Harris. Anyone to whom
Harris confided his vote may have volunteered this
information to Dawson and the implication is not
warranted that Dawson was creating the impression
of surveillance as alleged in paragraph 9(1) of the
complaint . I will therefore recommend that para-
graph 9 ( 1) be dismissed.
2. Plant Superintendent Ralph Paulie's remarks to
Anderson
Facts and Conclusions
About the middle of September , Plant Superin-
tendent Paulie had a conversation with employee
Albert Anderson. Anderson testified as follows:
Paulie spoke to Anderson at the punch press
machine with no one else present and asked Ander-
son's views on the union situation . When Anderson
answered that it should be taken care of by secret
ballot , Paulie responded the Company did not need
a union and that a union took away the workers' in-
centive to work for raises since the employees who
did not work hard were raised just the same as the
ones who worked harder . Paulie then said that he
thought that since Anderson was a good worker
and wanted to get in a tool and die department, An-
derson would be better off without the Union and
that Anderson could try to get the tool department
job through hard work . Paulie also said that the
foreman of the tool and die department was observ-
ing Anderson and that Anderson had a good
chance to get into the tool and die department if
the Union did not get in.
Paulie testified as follows: Anderson asked Paulie
about getting into the tool and die department and
Pauhe answered that he would talk to the super-
visor of the tool and die department about it. An-
derson asked how seniority worked and Paulie an-
swered that it was by seniority and ability . Ander-
son then asked if there would be stricter seniority if
the Union came in and Paulie answered that he did
not know anything about the Union . Paulie did not
remember who brought up the subject of the
Union . Paulie specifically denied that he asked An-
derson what he thought about the Union and
specifically denied that he told Anderson that An-
derson had a good chance to get the transfer if the
Union did not get in.
I credit Anderson 's version of the conversation.
Paulie acknowledged that they spoke of the seniori-
ty and ability criteria for filling a position in the
tool and die department . He further testified, "The
Union got into it some way, I don't recall whether it
was me , him, or how , but it began with the seniority
also, whether it would be strictly seniority if the
Union got in." Paulie's statement later in his
testimony that he told Anderson that he had "a
good chance of getting into tool and die , but there
was no mention of union one way or the other" is
not fully consistent with his prior testimony . Ander-
son's testimony regarding this conversation was
convincing and is credited.
Paragraph 9(d) of the complaint alleges inter-
rogation in violation of Section 8(a)(1) of the Act
by Paulie . Having found that Paulie did interrogate
Anderson as to Anderson 's sympathy toward the
Union, I further find that by such conduct Respon-
dent violated Section 8(a)(1) of the Act. Section
9(c) of the complaint alleges that Respondent vio-
lated Section 8(a)(1) through Paulie 's promise to
an employee to transfer that employee to the tool
and die department if the Union were rejected. The
findings of fact set forth above do not warrant the
conclusion that Anderson was promised a transfer
if the Union were rejected but the credited
evidence is that Paulie told Anderson that he had a
good chance to get in the tool and die department
if the Union did not get in. The unmistakable impli-
cation of this remark is that Anderson 's chances
would be good if the Union were voted out and bad
if the Union were voted in. That was a promise of
benefit to keep the Union out and was closely re-
lated enough to paragraph 9(c) of the complaint to
warrant the finding that the statement violated Sec-
tion 8 ( a)(1) of the Act.
3. Welding Supervisor Earnestine L. Perkins'
remarks to Danuser
Facts and Conclusions
About a week before the election of September
25 Donald Danuser, who was mentioned above as
the mainstay of the union supporters in the plant,
had a conversation with Welding Supervisor Ear-
nestine Perkins. According to Danuser the conver-
sation went as follows: Danuser started the
exchange by asking Miss Perkins if she had a hand-
kerchief because the election was going to be held
shortly. Miss Perkins asked what they hoped to gain
by getting the Union in. Danuser answered that
they wanted a union shop, seniority rights, and a
raise. Miss Perkins said that in her opinion Dawson
would pull up stakes and move and that he had of-
fers from other places to move . Danuser replied
that if Dawson was planning to move they would
DAWSON METAL PRODUCTS, INC. 197
not be wiring up new machines. Miss Perkins an-
swered that Dawson makes snap decisions and that
he had the backing to move.
Miss Perkins' version of the conversation was dif-
ferent: Danuser stopped Miss Perkins and asked her
what she thought of the rumor going around that
Dawson was going to move his plant back to
Wichita. Miss Perkins answered that she did not
know. Danuser said that he did not feel that
Dawson could afford to move back. She responded
that he afforded to move down and that even
though she did not know anything about his finan-
cial position she had never missed a paycheck in 4
years. She denied ever telling Danuser that Dawson
would pull up stakes and leave town and she denied
ever discussing the Union with Danuser.
I credit Miss Perkins' version of the conversation.
She was a direct, straightforward witnesses and im-
pressed me as a person who would not have al-
lowed herself to be teased by Danuser into making
threatening remarks.
Whether Perkins or Danuser was credited in the
above conversation, my observation of the wit-
nesses as they testified convinced me that it was
Danuser who was trying to intimidate Perkins
rather than the other way around. The second part
of paragraph 9(i) of the complaint alleges that
Respondent, through Miss Perkins,7 threatened to
move the plant if the employees selected the Union
as a collective-bargaining representative. As I have
found that no such threat was made, I will recom-
mend that that portion of the complaint be
dismissed.
4. The conversations with Foreman Rogers
Foreman LeRoy Rogers is a native of the Cam-
denton, Missouri, area and has known most of the
Respondent's employees on a personal basis for
many years. Because of this he had a direct contact
with many employees and he often had conversa-
tions with them. Six employees testified to the con-
versations they had with Rogers in which Respon-
dent, through Rogers, allegedly violated Section
8(a)(1) of the Act. These employees were Donald
Danuser, Harley White, Albert Anderson, Johnny
Jackson, Gary McAllister, and John Walter
Neftzger.
a. Dan userfacts and conclusions
About 2 weeks before the election of September
25 employee Danuser had a conversation with Su-
pervisor Rogers. Danuser called Rogers over to his
machine and said , " Roy, I'm going to be doing all
right when the union goes in . I'll be getting higher
money. All I've got to do is set here and watch this
machine run ." Rogers answered , "Well, if the
union should go in, it wouldn't necessarily mean
that you would get a raise in pay.... In some in-
stances, it might even be reduced."
Paragraph 9(j) of the complaint alleges that
Respondent, through Supervisor Rogers, threatened
to reduce wages if the employees selected the
Union as their collective-bargaining representative.
The only evidence produced to support that allega-
tion was that relating to the Danuser-Rogers con-
versation. That conversation when viewed in its en-
tire context indicates that Danuser was baiting
Rogers and that Rogers' rather mild reply was
merely a defensive comment and in no sense a
threat to interfere with the employees' Section 7
rights. I therefore will recommend that that allega-
tion of the complaint be dismissed.
b. Whitefacts and conclusions
On September 14 or 15 Rogers had a conversa-
tion with employee Harley White. White testified
that Rogers approached him and asked him what he
thought about the Union, he responded that he did
not care one way or another and Rogers then said
that no matter how he felt he should not say
anything about it. Rogers testified that he had no
recollection of such a conversation with White and
that he could neither admit nor deny it. I credit
White's testimony.
I find that Rogers' interrogation of White con-
cerning his union sympathies was a violation of Sec-
tion 8(a)(1) of the Act as alleged in paragraph 9(d)
of the complaint. This interrogation was not an iso-
lated instance but flowed from Respondent's known
union animus and fits into the pattern of the other
unfair labor practices found herein. Cf. Dryden
Manufacturing Company, Inc., d/b/a Truck Body
Mfg. Co., 174 NLRB No. 46.
c. Anderson-facts and conclusions
Employee Albert Anderson is the same person
who testified concerning the conversation with Pau-
lie set forth above about a possible transfer to the
tool and die department. Anderson also testified to
a conversation he had with Supervisor Rogers in
the middle part of September. For some time be-
fore that conversation Anderson had been in the
habit of sitting with employees Jones and Danuser
during break periods. As set forth above President
Dawson and Supervisor Paulie acknowledged that
they knew that Danuser was a key figure in the
Union's organizational drive. Anderson testified
that on the date in question Rogers approached him
at his machine and told him that he had better stay
away from Jones and Danuser or he would be in
trouble and that if he wanted to get into the tool
and die department he had better vote against the
Union.
r This finding of fact is based on the credited testimony of Rogers
Danuser's testimony, though less detailed, was not substantially different
In direct examination Danuser testified that Rogers told him that wages
would be cut if the Union was voted in However in cross-examination he
changed the "would" to a "could "
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rogers testified that he did have a conversation
with Anderson in which he told Anderson that An-
derson should stay away from Danuser and Jones,
but that he made that remark because Danuser and,
to a lesser extent, Jones kept waving employees
over to their machines to talk to them and that this
was interfering with production. Rogers did not
directly respond to Anderson's testimony that
Rogers told Anderson to vote against the Union if
he wanted to get in the tool and die department.
Rogers acknowledged that he knew Danuser and
Jones were union supporters.
I credit Anderson's version of the conversation.
Paragraph 9(b) of the complaint alleges that
Rogers threatened to prevent a transfer to the tool
and die department unless the employees rejected
the Union. I find that Rogers' statement to Ander-
son described above was such a threat and there-
fore was in violat;oi, of Section 8(a)(1) of the Act.
Paragraph 9(a) of the complaint alleges that Rogers
threatened employees with trouble if they did not
stay away from employees who supported the
Union. Rogers' statement to Anderson that Ander-
son should stay away from Jones and Danuser was
made with knowledge that Danuser and Jones were
union supporters and was in the same conversation
in which Rogers indicated to Anderson that the
only way Anderson could get in the tool and die de-
partment was by v')ting against the Union. In these
circumstances Rogers' explanation of his remark
concerning Anderson's talking to Danuser and
Jones is unpersuasive and I find that the remark
was intended to keep Anderson away from the
union adherents rather than to safeguard produc-
tion . I find that Respondent by such conduct vio-
lated Section 8(a)(1) of the Act.
d. Jackson-facts and conclusions
A week or two before the election of September
25 Johnny Jackson and Supervisor Rogers had a
discussion about the possibility of Jackson becom-
ing a leadman. Later the same day they had a
second conversation in which Rogers asked
Jackson what he thought about the Union. Jackson
answered that it had its good points and its bad
points to which Rogers replied, "Of course, you
know that if the union goes in we'll have to choose
our lead man through seniority instead of the one
we want. "8
Paragraph 9(d) of the complaint alleges that Su-
pervisor Rogers interrogated employees about their
union sympathies. I find that Rogers' questioning of
Jackson concerning what Jackson thought about
" This finding is based on the credited testimony of Jackson Rogers
acknowledged that he had a conversation with Jackson in which he told
Jackson that Jackson was doing a good job but he testified he did not recall
talking about Jackson 's being a leadman and did not recall anything in the
conversation about the Union or seniority Jackson's testimony was direct
and convincing
This finding is made on the credited testimony of McAllister Rogers
recounted a conversation with McAllister in which McAllister asked how
the Union was an interrogation in violation of Sec-
tion 8(a)(1) of the Act. Paragraph 9(e) of the com-
plaint alleges that Rogers promised an employee a
promotion to leadman if he rejected the Union.
Though Rogers' statement to Jackson, that seniority
and not the Company' s wishes would control
promotion tc leadman status, fell short of a promise
to promote Jackson if the Union were rejected, the
statement clearly implied that Jackson's chances of
getting the promotion would be better without the
Union. That promise of additional consideration of
a promotion for Jackson if the Union were rejected
was a promise of benefit and a coercion of Jackson
in the exercise of his rights under Section 7 of the
Act and therefore violated Section 8(a)(1) of the
Act.
e. McAllister
Two or three weeks before the election of Sep-
tember 25 Supervisor Rogers had a conversation
with employee Gary McAllister at McAllister's
machine with no one else present. Rogers asked
McAllister how he felt about the Union. McAllister
answered that he was not sure. Rogers then said
that he was sure the Union would hurt a lot more
than it would help.'
I find that Supervisor Rogers interrogated em-
ployee McAllister regarding his union sympathies in
violation of Section 8(a)(1) of the Act.
f. Neftzger
Within the 3-week period before the election of
September 25 Supervisor Rogers had a conversa-
tion with employee John Walter Neftzger. Rogers
asked Neftzger if he thought the Union would pass
and Neftzger replied , " Heck yes." Neftzger then
asked Rogers what Rogers thought about it and
Rogers answered that he did not know much about
the Union.10
Though this conversation does have the ring of
familiar chit -chat, it falls into a pattern of other in-
terrogation by Supervisor Rogers and I find that it
also violates Section 8(a)(1) of the Act.
5. The conversations between Personnel Manager
Jack Kuhlmann and Letha Morrison
Facts and Conclusions
Jack Kuhlmann is Respondent's personnel
manager . It was stipulated that he is a supervisor
within the meaning of the Act. Letha Morrison,
he could get ahead with the Company, Rogers told McAllister to talk to
Dawson or Paulie , McAllister asked about the union situation, and Rogers
answered , " Well, it is my understanding union is based on seniority, and it
is my opinion this company would be better off without a union " Rogers
neither admitted nor denied the alleged interrogation of McAllister
` This finding is based on the credited testimony of Neftzger Rogers did
not recall whether or not the Union was mentioned in this conversation
DAWSON METAL PRODUCTS, INC.
who worked in the plant office from January to
November 2 had three conversations with Kuhl-
mann concerning applicants for employment. The
first conversation was the first week in September.
An ad had been running for women employees and
a woman had come to the office to apply. Morrison
took the application to Kuhlmann who said, "Well
I'm not going to hire this woman." Morrison asked
why not and he answered, "Her husband is a union
steward where he works."
The second conversation took place in the mid-
dle of September also in Kuhlmann's office with no
one else present. This time a man had come to
apply for a job and Morrison took the application
to Kuhlmann. Kuhlmann said that he would not
hire the applicant because the applicant had
worked for a company in Kansas City that had a
strong union and that company had had union
problems.
The third conversation took place in the latter
part of October, also in Kuhlmann's office with no
one else present. An applicant for employment had
come to the office and Morrison took the applica-
tion to Kuhlmann. Kuhlmann looked at the applica-
tion, slammed it on the desk, and said, "Look who
he has for reference." Morrison asked what was
wrong with him and Kuhlmann answered, "Well, he
is one of those guys." Morrison asked what guys
and he answered, "Well, he's with this union
bunch." Morrison replied, "Well, do you mean that
you wouldn't hire anyone if they were a friend of
someone who was a union supporter." Kuhlmann
answered, "Well, now, Letha you know better than
that."
With all three applicants Kuhlmann told Mor-
rison to tell them that he would call them if he
wanted to talk to them. The Company was hiring at
the time."
Morrison was a secretary and office worker. She
would prepare shipping papers and payroll. Though
in May she had been told by Dawson that she
would be in charge of office work and she had
received a 40-cent raise about August 19, the only
one to whom she assigned work at any time was
employee Edna Hall. Except for employee Hall,
Morrison had nothing to do with the hiring of em-
ployees. When a job applicant came in she would
fill out the application and give it to whomever was
doing the hiring. For some time that was Supervisor
Paulie and then it was Supervisor Kuhlmann. With
regard to Edna Hall, who ultimately replaced Mor-
rison when she was discharged, Kuhlmann asked
Morrison to interview employees for a clerical job
that was similar to Morrison's. Morrison did inter-
view potential employees and in Morrison's words
they "mutually agreed" on hiring Mrs. Hall. In part
of her testimony Morrison stated that she used her
" The above is based on the credited testimony of Morrison Kuhlmann
testified that he had no recollection of any of the three conversations to
which Morrison testified It was pointed out to Kuhlmann that the remarks
which he allegedly made were not the sort that would be easily forgotten if
199
own discretion in assigning tvork to employee Hall.
However she later expanded her testimony to make
it clear that she only assigned work to Hall from
August 27 until the first part of October and that
this assignment was based on the fact that Hall had
little clerical experience and that it was necessary
for Morrison to give her instructions concerning the
forms to be filled out in shipping and invoicing. As
soon as Hall learned her duties Morrison stopped
assigning her work.
I find that Morrison's relation to Hall was one of
a more experienced employee to a less experienced
employee. Her duties were clerical and not super-
visory in nature. Though she did participate in the
decision to hire Hall, this was clearly an atypical
situation where an employee who was familiar with
the work to be done helped pick a new employee to
do related work. Morrison was not vested with the
type of independent discretion in the performance
of her duties with relation to other employees so as
to warrant the finding that she was a supervisor. Cf.
Willis Shaw Frozen Food Express, Inc., 173 NLRB
487.
I find that Respondent, through Kuhlmann's
statements to Morrison on three separate occa-
sions, to the effect that applicants for employment
would not be hired because of their union connec-
tions, violated Section 8(a)(1),,of the Act as alleged
in paragraph 9(m) of the amended complaint.
6. Conclusions as to the alleged violations of
Section 8(a)(1) of the Act
Recapitulating the findings made above I find
that Respondent violated Section 8(a)(1) of the
Act by:
(a) Interrogating employees concerning their
sympathy toward the Union, as established by the
interrogation of employee Anderson by Plant Su-
perintendent Paulie, and the interrogation of em-
ployees White, Jackson, McAllister, and Neftzger
by Foreman Rogers, all occurring in mid-Sep-
tember.
(b) Promising benefits to employees if the Union
were rejected, as established by (I) Paulie's state-
ment in mid-September to employee Anderson that
Anderson had a good chance to get in the tool and
die department if the Union were rejected and (2)
Foreman Rogers' statement to employee Jackson in
mid-September that Jackson's chances of making
leadman would be better if the Union were re-
jected.
(c) Threatening harm to employees if they en-
gaged in union activity or if the Union were voted
in, as established by (1) Foreman Rogers' state-
ment to employee Anderson in mid-September that
if Anderson wanted to get in the tool and die de-
in fact they were made and he was asked if he could deny that such state-
ments were made, he merely repeated that he had no recollection Mor-
rison 's testimony was unequivocal and convincing
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment he had better vote against the Union and
(2) Rogers' statement to Anderson in mid-Sep-
tember that Anderson would be in trouble unless he
stayed away from the union supporters.
(d) Interfering with employees ' rights guaran-
teed in Section 7 of the Act by Personnel Manager
Kuhlmann 's statements to employee Morrison the
first week in September , in mid -September, and
again in the latter part of October to the effect that
applicants would not be hired because of their
union connections.
As to all allegations of paragraph 9 of the com-
plaint other than those found above to have merit, I
recommend dismissal.
B. The Objections
Respondent filed the following Objections to the
Conduct of the Election:
1. The Company through its officers and
agents held meetings with its employees during
working hours. During these meetings the
Company made threats and promises and coer-
cive statements to their employees to
discourage their interest in the above-named
labor organization.
2. On or about September 13, 1968 the Com-
pany through its officers and agents promised a
raise to an employee in order to discourage his
interest in the above -named labor organization.
3. On or about September 23, 1968 the Com-
pany permitted a local business man to come
into their plant to talk to the employees in
order to discourage their interest in the above-
named labor organization.
4. On September 25, 1968 the Company
placed a derogatory , inflammatory open letter
in a local newspaper timed in such a manner
that the above -named labor organization had
no time to reply.
5. On September 25, 1968 the date of the
election , the Company permitted the referred
to newspaper open letter to be placed on the
plant bulletin board and the above-named
labor organization had no opportunity to
answer.
Though the Regional Director ordered that the
hearing on all the objections be consolidated with
the complaint case in the instant matter, no
evidence was introduced at the hearing relating to
objections 1, 3, 4, or 5. None of those objections
parallel matters alleged in the complaint . It appears
-that both the Union and the General Counsel have
abandoned those objections and I will recommend
that they be overruled for failure of proof. Objec-
tion 2 appears to be a restatement in different
words of paragraph 9(h) of the complaint which al-
leges that Respondent promised an employee a
raise if the Union were rejected. The only evidence
in the record relating to objection 2 and paragraph
9(h) of the complaint is that of the conversation
between Dawson and Danuser which is discussed in
section A(1), (a), above. My credibility findings
with regard to that conversation lead to the conclu-
sion that Dawson did not promise an employee a
raise if the Union were rejected and I therefore
recommended that paragraph 9(h) of the complaint
be dismissed . In evaluating the same testimony I
must also conclude that Dawson did not promise a
raise to an employee in order to discourage his in-
terest in the Union as alleged in objection 2 and I
therefore recommend that objection 2 be over-
ruled.
As I have recommended that all of the specific
objections to the conduct of the election be over-
ruled, the question is presented whether an election
can be set aside based on conduct that violates Sec-
tion 8(a)(1) as alleged in a complaint when that
conduct is not alleged in the objections . Based on
the cases cited below I conclude that matters
litigated in the complaint case can form a basis for
setting aside the election even though those matters
were not raised by the objections
In International Shoe Company, 123 NLRB 682,
the Board held that the jurisdiction of a Regional
Director in making postelection investigations was
not limited to the specific issues raised by the
parties. In Fashion Fair, Inc., 157 NLRB 1645,
enfd. in pertinent part 399 F.2d 764, 767 (C.A. 6),
a consolidated case such as the instant one, in
which the question was raised whether the
discharge of an employee ( Black ) could be used to
set aside an election even though the discharge had
not been raised as an objection , the Board held:
While Black's discharge was not alleged as an
objection by the Union, an election may be set
aside because of objectionable conduct occur-
ring in the critical period even though it was
not specifically alleged as an objection by the
objecting party. International Shoe Company,
123 NLRB 682 , 684, and cases cited therein.
Moreover , in a consolidated proceeding such
as this, Respondents cannot claim that they
were prejudiced in any respect by the failure of
the Union to allege Black 's discharge as an ob-
jection . They had ample notice of the need to
defend against such allegation and have indeed
presented a vigorous defense to this allegation.
The court of appeals enforcing that part of the
Board's Decision held:
Respondents argue that it was improper for
the Board to consider the discharge of Black as
a ground for setting aside the election because
it was not one of the objections to the election
specifically filed by the union . Their position is
that the Board cannot consider any action of
the employer as a ground for setting aside an
election unless such ground is specifically al-
leged by the union in its timely filed objections.
Section 102.69 of the Board's Rules and Regu-
lations, 29 C.F. R. 102.69 provides , in part:
DAWSON METAL PRODUCTS, INC. 201
Within 5 days after the tally of ballots
has been furnished, any party may file
with the regional director an original and
three copies of objections to the conduct
of the election or conduct affecting the
results of the election, which shall contain
a short statement of the reasons therefor.
The Supreme Court has said with regard to
unfair labor practice charges filed with the
Board, that such charge
is not to be measured by the standards ap-
plicable to a pleading in a private lawsuit.
Its purpose is merely to set in motion the
machinery of an inquiry ... Once its ju-
risdiction is invoked the Board must be
left free to make full inquiry under its
broad investigatory power in order
properly to discharge the duty of protect-
ing public rights which Congress has con-
ferred upon it. There can be no justifica-
tion for confining such an inquiry to the
precise particularizations of a charge. Na-
tional Labor Relations Board v. Fant
Milling Co., 360 U.S. 301, 307-308 ...
[44 LRRM 2236]. See also, National Lico-
rice Co. v. National Labor Relations Board,
309 U.S. 350.... [6 LRRM 674].
This Court recently said in N.L.R.B. v. Tennes-
see Packers, Inc., Frosty Morn Division, . . 379
F.2d 172, 179 [65 LRRM 2619], cert. den.
389 U.S. 958 ... [66 LRRM 2507], "where
related facts concerning misconduct are un-
covered in the investigation of the objections
filed by a party, it is proper for the Director
and the Board to set aside an election on these
facts." See also, N.L.R.B. v. Dal-Tex Optical
Company [310 F.2d 58, 51 LRRM 2608]
(C.A. 5).
In the instant case although the objections to
the election filed by the union did not mention
the discharge of Black, the unfair labor prac-
tice charges filed the same day, and thereafter
consolidated for hearing and decision, alleged
an 8(a)(3) violation based on his discharge.
Respondents were fully aware of the charges
leveled against them. Their defense to the
8(a)(3) violation would be identical to their
defense to an objection based on the same pre-
election conduct. Therefore they suffered no
prejudice by the Board's ruling that Black's
discharge was an additional ground for setting
aside the election.
The critical period during which objectionable
conduct related to the election can be considered is
from September 3, the date the petition was filed to
September 25, the date of the election. The Ideal
Electric and Many facturing Company, 134 NLRB
1275; Goodyear Tire and Rubber Company, 138
NLRB 453. As set forth above I have found that
Respondent engaged in numerous violations of Sec-
tion 8 (a)(1) during the critical period. In Dal-Tex
Optical Company, Inc., 137 NLRB 1782, 1786, the
Board held:
Conduct violative of Section 8(a)(1) is a for-
tiori , conduct which interferes with the exer-
cise of a free and untrammeled choice in an
election. This is so because the test of conduct
which may interfere with the "laboratory con-
ditions" for an election is considerably more
restrictive than the test of conduct which
amounts to interference, restraint, or coercion
which violates Section 8(a)(1).
This policy has been consistently followed. Peerless
Bread Machinery Corporation, 174 NLRB No. 53,
Tilton Tanning Corp., 164 NLRB 1168; Playskool
Manufacturing Company, 140 NLRB 1417.
I find that Respondent's conduct, in violation of
Section 8(a)(1) of the Act which is summarized in
section A(6), (a), (b), and (c), above,12 and all of
which occurred during the critical period, was of
such a nature as to preclude the laboratory condi-
tions needed for a fair election and I therefore
recommend that the election held on September 25
be set aside.
C. The Alleged Violation of Section 8(a)(5) of the
Act
1. The facts
a. The appropriate unit and the demand for
recognition
Respondent began production at the Camdenton
plant in July 1967. At that time Respondent was
also operating a 'plant in Wichita, Kansas. Since
July 1967 Respondent has been moving its produc-
tion and manufacturing facilities from Wichita to
Camdenton. By August the Wichita plant had been
consolidated into the Camdenton plant.
The complaint alleges and the answer admits
that:
All production and maintenance employees
employed by the Respondent at the plant, but
excluding office clerical employees, guards and
supervisors as defined in the Act, is a unit ap-
propriate for collective bargaining within the
meaning of Section 9(b) of the Act.
By letter dated August 26, signed by Eugene F.
Eyink, business representative of the Union, the
Union notified Respondent that it represented a
12 1 have not considered Personnel Manager Kuhlmann's remarks to em-
ployee Morrison about applicants not being hired because of their union
connections , in evaluating the question of whether the election should be
set aside Though two of the remarks were made within the critical period
and I have found Morrison to be an employee, she is not in the bargaining
unit and there is no evidence that she repeated the remarks to anyone in
the bargaining unit at a time when it could have affected the conduct of the
election
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of Respondent's production and main-
tenance employees and requested Respondent to
recognize and bargain with it.13
b. The number of employees in the bargaining unit
and the Union's majority
Supervisor Kuhlmann received the Union's
request for recognition on August 27 and on that
day called President Dawson to inform him of the
contents of the letter. As the date that the Union's
majority status must be evaluated is that on which
the Respondent received notice that the Union
claimed to represent a majority of the employees,
an evaluation must be made as of August 27. Rea
Construction Company, 137 NLRB 1769; Allegheny
Pepsi-Cola Bottling Company, 134 NLRB 388, enfd.
312 F.2d 529 (C.A. 3). The parties stipulated on
the record the names of all employees in the bar-
gaining unit on various dates. On August 27 there
were 22 employees in the bargaining unit including
1 employee that was hired on August 27. In addi-
tion the parties stipulated that three employees who
had been working in Respondent's Wichita plant
were scheduled before August 26 to transfer to the
Camdenton plant and were in fact transferred
between August 27 and September 7. If these three
employees were not actually employed in the bar-
gaining unit in Camdenton on August 27, they
would have to be excluded from the computation
on that date. However the stipulation is not definite
as to when the transfer was made between August
27 and September 7, so it is possible that some
were transferred on August 27. Thus the employee
complement on August 27 was between 22 and 25.
On August 23 and 24, 14 employees authorized
the Union to bargain on their behalf by executing
authorization cards which read:
YES, I WANT THE IAM
I, the undersigned, an employee of (Com-
pany) ........ hereby authorize the Interna-
tional Association of Machinists and
ii The letter reads
This is to advise that a majority of your Production and Maintenance
employees, including Plant Clerical employees, have authorized and
designated Local Lodge 1316 of the International Association of
Machinists , AFL-CIO, as their bargaining representative in all matters
concerning wages , hours of work , working conditions, and other con-
ditions of employment
Should there be any good faith doubt on your part of the union's
majority status , please advise and the union will immediately submit
proof of our majority to some mutually agreeable impartial third party
such as a minister , rabbi, priest, or some other disinterested party for
the purpose of ascertaining same
This will serve as the union's request that the company recognize and
bargain collectively with the union and negotiate to a conclusion the
terms of a collective bargaining agreement regarding all matters per-
taining to wages , hours of work , working conditions , and other condi-
tions of employment
Please treat this request for recognition as the majority representative
of the employees in said unit as a continuing request , and in the in-
terim , it is expected and requested that all matters remain unchanged
unless a mutual understanding has been reached with the union We
Aerospace Workers (IAM) to act as my collec-
tive bargaining agent with the company for
wages, hours and working conditions. It is my
understanding that I will be invited to join the
IAM.
Name ....... Date ....
Address ..... City . .
Dept ... Shift . . Phone ...
Classification .......
Sign Here X .......
NOTE: This authorization to be SIGNED and
DATED IN EMPLOYEE'S OWN HANDWRITING.
YOUR RIGHT TO SIGN THIS CARD IS PROTECTED
BY FEDERAL LAW.14
The cards were duly authenticated and admitted in
evidence.15 Though additional employees signed
cards after August 27,16 these additional signatures
and the question of whether the Union's demand
was continuing in nature need not be considered as
the Union had a majority on August 27, the date
that Respondent received the demand, of 14 em-
ployees out of either 22 or 25 in the bargaining
unit.
Respondent in its brief argues that the cards
signed by the employees authorized only the Inter-
national Association of Machinists and Aerospace
Workers (IAM) and not its Local Lodge 1316 to
bargain on their behalf. Respondent urges therefore
that the Union, that is the Local, does not represent
a majority of the employees. I find this contention
without substance. The Local is the appropriate
operating arm of the International. It was the Local
that undertook the organizational drive of Respon-
dent's employees, requested recognition, and ap-
peared on the ballot at the election. There is no
evidence that any employee was misled or confused
in this regard. Under these circumstances I find that
the designation of the parent organization was a
valid designation of its affiliate. C. A. Webb, et al.,
stand ready and willing to meet with your designated representative at
an early date , mutually agreeable to the parties , to conclude such
negotiations
" One employee , Dale Wilson. testified that he was told by another em-
ployee , Don Netz, that the purpose of the card was to get the Union down
to see what they had to offer However, Wilson also testified that he read
the card before signing it The card is unequivocal About August 24 Eu-
gene Eyink , the business representative of the Union , had a meeting with a
number of the employees of Respondent Eyink told them that if a majority
of the employees signed cards he would send a letter to Respondent
requesting recognition One of the employees asked what would happen if
Respondent did not recognize the Union and Eyink answered that in that
case they would have to request the NLRB for an election The cards were
clearly valid Levi Strauss & Co , 172 NLRB No 57
" Employees Jones, Wilson, Burch, Netz, Danuser, Jackson, and
Neftzger authenticated their own cards Employee Danuser credibly
testified that he saw the following employees sign cards Eaton, Justice,
Morrison, Goldsberry , Epperhardt, Denny, and Brown
'" Employee White testified that he signed the card on August 5 but as he
was hired on August 29 1 believe he was in error and in fact signed on Sep-
tember 5
DAWSON METAL PRODUCTS, INC.
d/b/a Weaver Wintark , 87 NLRB 35 1; Cummer-
Graham Company , 90 NLRB 722 , order vacated on
other grounds 95 NLRB 175, Knickerbocker Plastic
Co., Inc., 104 NLRB 514 , enfd . 218 F.2d 9 i 7.
c. Respondent 's response to the Union 's request for
recognition
After Supervisor Kuhlmann read the demand
letter to Dawson on August 27 , Dawson instructed
Kuhlmann not to do or say anything about the
letter until he spoke to him again . The same day
Dawson called Kuhlmann back and told him not to
do or say anything with regard to the letter and
specifically not to ask any questions of the em-
ployees. Dawson decided to ask for an election, as
he put it:
... on the basis that I was not even in Cam-
denton during the occurrence of these events
and that I seriously doubted the allegation that
they represented a majority of our people on
the basis of my own contacts with the people
which indicated that we had an excellent
morale in the Camdenton plant , that the peo-
ple liked their work , they enjoyed working for
Dawson Metal Products and it was not com-
patible with the claim of the letter that these
people in the two weeks I was absent from the
Camdenton plant could make a complete turn
around into a completely opposite position of
feeling that they needed a union in the plant in
order to accomplish or correct inequities or
correct anything that might be wrong.
01 August 30 Dawson wrote a letter to the Union
in which he stated:
This will acknowledge receipt of your letter
dated August 26, 1968. We doubt your claim
that you represent a majority of our employees
in an appropriate unit , and we question the
manner in which any alleged representation
was obtained . In addition , we question the re-
liability of any designation of representation
made by an employee , other than through a
secret ballot election conducted by the Na-
tional Labor Relations Board . For this reason,
we have filed with the National Labor Rela-
tions Board a Petition for an Election, a copy
of which is enclosed . We hope that you will
join with us in cooperating with the National
Labor Relations Board so that the employees
may make a determination by secret ballot
whether they wish to be represented by your
union.
On September 3 Respondent filed a petition for
the election.
2. Analysis and conclusion as to the refusal-to-
bargain allegation
As I have concluded that the election was invalid
and must be set aside , the election is not a bar to
203
the processing of the refusal -to-bargain allegation
of the complaint , which must be decided on its own
merits. Bernel Foam , 146 NLRB 1277; Irving Air
Chute Company, 149 NLRB 627, enfd. 350 F.2d
176 (C.A. 2). General Counsel has established that
the Union requested bargaining in an appropriate
unit at a time when it represented a noncoerced
majority of the Respondent 's employees. The
Respondent had an obligation to bargain with the
Union unless it had a good-faith doubt that the
Union represented a majority . The criteria for
determining whether an employer is acting in good
or bad faith in questioning a union's majority is set
forth in Hammond & Irving, Incorporated, 154
NLRB 1071, 1073, where the Board held:
The Board has long held that an employer
may insist upon a Board election as proof of a
union 's majority if it has a reasonable basis for
a bona fide doubt as to the union 's representa-
tive status in an appropriate unit . If, however,
the employer has no such good -faith doubt, but
refuses to bargain with the majority representa-
tive of its employees because it rejects the col-
lective -bargaining principle or desires to gain
time within which to undermine the union and
dissipate its majority , such conduct constitutes
a violation of Section 8(a)(5) of the Act. [Joy
Silk Mills, Inc., 85 NLRB 1263, enfd. as
modified on other grounds 185 F.2d 732
(C.A.D.C.), cert . denied 341 U.S. 914.] In
determining whether the employer's action was
taken to achieve either of the said invalid pur-
poses, the Board considers all the surrounding
circumstances as well as direct evidence of
motivation . Absent such direct evidence,
where extensive violations of the Act accom-
pany the refusal to grant recognition, they
evidence the employer's unlawful motive and
an inference of bad faith is justified.
The Board has often found that widespread
flagrant violations of Section 8(a)(1) evidence bad
faith so as to warrant a refusal-to-bargain finding.
Jerome T. Kane, d/b/a Kane Bag Supply Company,
173 NLRB 1203; Bauman Chevrolet , Inc., 173
NLRB 474, Heck's Inc., 172 NLRB No. 255; Beaver
Bros. Baking Co., Inc., d/b/a American Beauty Bak-
ing Co., 171 NLRB No. 98. However , the Board has
also held that violations of Section 8(a)(1) that
were narrow in scope did not establish employer's
bad faith. Thus in J. C. Penney Company, Inc., 172
NLRB No. 82, a case in which two supervisors
threatened to fire employees because they were
wearing union buttons and a supervisor unlawfully
interrogated an employee , the Board held:
Respondent ' s illegal conduct limited to the
statements [of two supervisors ] was not so
flagrant as to vitiate its good faith in question-
ing the Union's majority , or necessarily have
had the object of destroying the Union's
majority status. [Footnote omitted.]
See also Fashion Fair , Inc., 173 NLRB 1421; Graf-
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ton Boat Co., Inc., 173 NLRB 999; Merritt Packing
and Crafting Service, Inc., 172 NLRB No. 202.
When Respondent received the Union's request
for recognition it expeditiously petitioned for an
election and consented to an election without the
delay of a hearing. Even though Plant Superinten-
dent Paulie and Foreman Rogers did make state-
ments in violation of Section 8(a)(1) as found in
sections A(2) and (4), above, those violations were
limited in scope and impact, and by themselves
would have been insufficient to establish that the
Respondent lacked a good-faith doubt that the
Union represented a majority of the employees.
However the statements of Personnel Manager
Kuhlmann to employee Morrison put the matter in
a different light.- Kuhlmann's remarks to Morrison
put into perspective Respondent's hiring policies so
as to indicate that a fair election among Respon-
dent's employees is impossible. Kuhlmann's state-
ments indicated that Respondent rejected three ap-
plicants because Kuhlmann thought it likely that
they might be prounion. Such conduct undermines
the very foundations of the election procedure and
evidences not only an attempt to dissipate the
Union's majority but a complete rejection of the
collective-bargaining principle. The complaint only
alleges as a violation of the Act Kuhlmann's remark
about the discrimination in hiring and does not al-
lege the discrimination in itself as a violation of
Section 8(a)(3) of the Act. However the question
of the Respondent's good-faith doubt as to the
Union's majority is in issue and in that Kuhlmann's
remarks indicate a rejection of the collective-bar-
gaining principle they tend to show a lack of good-
faith doubt of the Union's majority status.
In considering the question of good-faith doubt,
Respondent's response to the Union's request for
recognition must also be evaluated. Respondent's
President Dawson testified in substance that he
questioned the Union's majority status because his
employees had excellent morale and liked their
work, and he did not believe that the employees
had made a complete turnaround in their feelings
so as to need a union to correct whatever was
wrong. The clear implication of Dawson's remarks
is that employees who like their work do not be-
lieve in collective bargaining while employees who
are unhappy do. This questionable philosophy is a
poor foundation upon which to rest a good-faith be-
lief that the Union does not have a majority.
Considering all the above factors and particularly
the statements of Personnel Manager Kuhlmann
relating to Respondent's refusal to hire employees
who might be prounion I conclude that Respondent
rejected the collective-bargaining principle and
manifested its lack of good-faith doubt that the
Union represented a majority of its employees.
Respondent's conduct set forth in section B, above,
prevented a fair election on September 25 and its
antiunion hiring policies evidenced by Kuhlmann's
statements to Morrison effectively preclude a fair
election in the future. Respondent cannot destroy
the very conditions needed for a fair election and at
the same time successfully maintain that an election
is the sole means for determining the desires of its
employees. I therefore find that Respondent vio-
lated Section 8(a)(5) and (1) of the Act since Au-
gust 27 by refusing to bargain with the Union.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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
As for Case 17-CA-3686
Having found that the Respondent has engaged
in certain unfair labor practices I will recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent engaged in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act, I will recommend that
it cease and desist therefrom and upon request bar-
gain collectively with the Union as the exclusive
representative of all employees in the unit set forth
above and, if an understanding is reached, embody
such understanding in a signed agreement.
As to Case 17-RM-397
Having found that the Union's specific objections
to the conduct of the election are without merit but
that conduct of the Respondent which has been
fully litigated in this proceeding did affect the con-
duct of the election and prevent a fair election, I
will recommend that the specific objections set
forth in the Union's objections to the conduct of
the election be overruled but that the election be
set aside. As I have found that Respondent violated
Section 8(a)(5) of the Act I will recommend that
the petition for an election be dismissed.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
DAWSON METAL PRODUCTS, INC. 205
3. The following employees constitute a unit ap-
propriate for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act:
All production and maintenance employees
employed by Respondent at its Camdenton,
Missouri, plant, but excluding office clerical
employees, guards and supervisors as defined
in the Act.
4. At all times since August 27 the Union has
been the exclusive representative of 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 condi-
tions of employment.
5. By refusing on August 27 and thereafter to
bargain with the Union as the exclusive representa-
tive of the employees in the said appropriate unit,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the foregoing conduct and by interrogating
its employees about their union sympathies, by
promising them benefits if the Union were rejected,
by threatening harm to them if they engaged in
union activity or if they selected the Union as their
bargaining agent, and by telling an employee that
applicants for employment would not be hired
because of their union connections, Respondent
has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed to
them by Section 7 of the Act and thereby has vio-
lated Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
8. By engaging in the activities set forth above in
section III, B, Respondent interfered with the
freedom of choice of its 'employees in their selec-
tion of a bargaining representative in the election of
September 25.
RECOMMENDED ORDER
As to Case 17-RM-397
I recommend that the specific objections listed in
the Union's Objections to Conduct of Election be
overruled but that, because of the conduct of the
Respondent that was fully litigated in this proceed-
ing and which interfered with the conduct of the
election and prevented a fair election, the election
be set aside and the petition upon which the elec-
tion was based be dismissed.
As to Case 17-CA-3686
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this case, I recommend that Respondent, Dawson
Metal Products. Inc., shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
sympathy toward Local Lodge 1316, International
Association of Machinists and Aerospace Workers,
AFL-CIO.
(b) Promising benefits to employees if they re-
ject said Union.
(c) Threatening harm to employees if they en-
gage in activity on behalf of said Union or select
said Union as their bargaining agent.
(d) Telling employees that applicants for em-
ployment would not be hired because of their union
connections.
(e) Refusing to recognize and bargain with said
Union as the exclusive representative of its em-
ployees in the following unit:
All production and maintenance employees
employed by Respondent at its Camdenton,
Missouri, plant, but excluding office clerical
employees, guards and supervisors as defined
in the Act.
(f) In any manner interfering with, restraining,
or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Upon request bargain collectively with Local
Lodge 1316, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, as the ex-
clusive representative of all employees in the ap-
propriate unit described above and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at its Camdenton, Missouri, plant, co-
pies of the attached notice marked "Appendix B."17
Copies of said notice, on forms provided by the Re-
gional Director for Region 17, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.18
it 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" and in the first paragraph of the
notice the words "A Trial Examiner of shall be deleted In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
'" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
206 DECISIONS OF NATIONAL
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
After a trial at which all sides had the chance to
give evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated
the National Labor Relations Act, and has ordered
us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a
representative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all of these
things
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT ask you your opinion about
Local Lodge 1316, International Association
of Machinists and Aerospace Workers,
AFL-CIO.
WE WILL NOT promise you benefits if you re-
ject that Union.
WE WILL NOT threaten harm to you if you
engage in activities on behalf of that Union or
select that Union as your collective -bargaining
representative.
LABOR RELATIONS BOARD
WE WILL NOT tell employees that applicants
for employment will not be hired because of
their union connections.
WE WILL recognize Local Lodge 1316, Inter-
national Association of Machinists and
Aerospace Workers, AFL-CIO, as the only
collective -bargaining representative of our em-
ployees in the bargaining unit which is
All production and maintenance em-
ployees employed by us at our Cam-
denton, Missouri, plant, but excluding of-
fice clerical employees , guards and super-
visors as defined in the Act.
WE WILL bargain upon request with that
Union on wages , hours and conditions of em-
ployment and any agreement we reach will be
put in writing and signed.
DAWSON METAL
PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone
816-374-5282.