Dayco Corp.Download PDFNational Labor Relations Board - Board DecisionsApr 5, 1966157 N.L.R.B. 1459 (N.L.R.B. 1966) Copy Citation DAYCO CORPORATION 1459 WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Sec- tion 8 ( a) (3) of the Act. THE NELSON CO., 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 provi- sions, they may communicate directly with the Board 's Regional Office, Room 2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No. 684-3627. Dayco Corporation , and Its Wholly Owned Subsidiary Howell Plastics Company, and Cadillac Plastic and Chemical Company, a Division of Dayco Corporation and the Successor to Howell Plastics Company and Local Union 580, International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind. Cases Nos. 7-CA-5029 and 7-RC-6543. April 5, 1966 DECISION AND ORDER On December 6, 1965, Trial Examiner George J. Bott issued his Decision in the above-entitled proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint 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 certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. The Trial Examiner further found merit in the objections by the Union to the election conducted on January 21, 1965, and recommended that the election be set aside and all proceedings in that case be vacated. There- after, Respondent filed exceptions to the 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 these cases to a three-member panel [Chairman 'McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 157 NLRB No. 117. 221-374-66-vol . 157-93 1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Delete the phrase "In any other manner" in paragraph 1(e) and in the last paragraph of the notice, and substitute therefor the phrase "In any like or related manner." [2. Add : ["IT IS HEREBY FURTHER ORDERED that the election held in Case No. 7-RC-6543 be, and it hereby is, set aside and all proceedings in that case vacated."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges of unfair labor practices filed by the Union on January 27, Febru- ary 15, and April 23, 1965, in Case No. 7-CA-5029, and upon timely objections to an election held among Respondent's employees on January 21, 1965, pursuant to a Decision and Direction of Election issued by the Regional Director for Region 7 on December 2, 1964, the General Counsel of the National Labor Relations Board, on April 28, 1965, issued a complaint, supplemental decision, order consolidating cases for hearing, and notice of consolidated hearing, in which he alleged that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act and in which he consolidated the unfair labor practice case for hearing on certain of the Union's objections to the election. Subsequently, on June 23, 1965, the General Counsel amended the complaint to add an allegation of discrimination in violation of Section 8(a)(3) of the Act and accordingly enlarged the scope of the hearing on objections. Respondent's answers admitted certain allegations of the complaint but denied the commission of unfair labor practices. Pursuant to notice, a consolidated hearing was held before Trial Examiner George J. Bott in Howell, Michigan, on September 13, 14, and 15, 1965. Subsequent to the hearing, Respondent filed a brief and proposed findings which I have carefully considered. Respondent's proposed findings are disposed of in accord with the findings and conclusions in this Decision. - Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Prior to its dissolution in June 1965, Howell Plastics Company i was a wholly owned subsidiary of Dayco Corporation and it operated a plant in Howell, Michigan, where it was engaged in the manufacture and sale of plastic film in interstate commerce. Cadillac Plastic and Chemical Company, a Michigan corporation and a division of Dayco Corporation, succeeded to Howell Plastics Company in June 1965, and has continued to operate the Howell, Michigan, plant as Howell's successor. Dayco Corporation has its principal office and place of business in Dayton, Ohio, and maintains plants in various States where it has been engaged in the manufacture and sale of rubber, plastics, and related products in interstate commerce. Dayco Corporation and Cadillac are affiliated businesses with common officers, owners, directors, and management who formulate and administer a common labor policy affecting the employees of the two entities. Dayco Corporation and Howell Plastics Company, prior to the latter's dissolution, were also affiliated businesses with common officers, owners, directors, and management who formulated and adminis- tered a common labor policy affecting the employees of the two entities. I find that Dayco Corporation and its division, Cadillac Plastic and Chemical Company, are successors to Howell Plastics Company and are joint employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find that Dayco Corporation and Howell Plastics Company were joint employers engaged in commerce within the meaning of the Act, prior to Howell's dissolution. 1 Howell Plastics Company was dissolved in June 1965, and the pleadings were amended at the hearing to show the proper name of its successor. DAYCO CORPORATION 1461 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged discriminatory discharge or layoff of Austin Opper 1. The facts On October 20, 1964, the Union filed a petition for election with the Board seeking representation among Respondent's approximately 60 production employees. Austin Opper, employed as a maintenance man during the Union's drive to organize employ- ees, was active in the campaign, and he, individually or with the aid of certain key employees, obtained the signatures of 31 employees to union authorization cards which Opper secured from and then returned to the Union for filing with the National Labor Relations Board. Opper was laid off on November 13, 1964, allegedly because of his union activities. It is Respondent's position, however, that Opper was laid off because he was the least qualified and experienced employee in the maintenance group, which was reduced from six to five employees in an overall production cutback and reduction in personnel caused by legitimate production considerations, and because he declined to take a production job offered him. These contentions require some analysis of Opper's employment history and Respondent's operational problems. At the time Opper was first employed by Respondent, he was engaged in the spray painting contracting business which he operated under the name of "Spray Painting Carl." In September 1963, Opper applied at the Howell plant for employment as a maintenance man. Opper testified that there was no work at maintenance "available" at the time, but Superintendent Tomsick testified that Opper was not a qualified maintenance man. In any case, there is no dispute that Opper and Respondent made a special arrangement whereby Opper was engaged, along with his equipment, to per- form painting work at the plant. Opper himself drew up the terms of the agreement and signed it.2 Superintendent Tomsick, whose testimony I credit, testified that all necessary paint- ing work was finished in early January 1964, and Opper was terminated as a painter. Opper went to Florida for 2 weeks, and when he returned he applied to Tomsick for work. Tomsick told him there was an opening in maintenance but said it would be on a temporary basis because Opper lacked experience in the field. I also find on the basis of Tomsick's and Aldo Galvi's testimony, the latter being general manager of the Howell division at the time, that the Respondent had difficulties in recruiting and hiring qualified maintenance men during 1964 and that this bore on their decision to employ Opper. When Opper was hired in February 1964, he became one of five maintenance employees in the department. Respondent's process was operational 7 days a week, and Respondent used two maintenance men on its first shift, one on the second, one on the third, and another on a "swing shift," relieving the other maintenance men on their days off. General Manager Galvi credibly testified that the Company continued to search for qualified maintenance personnel during 1964 and appealed to the parent company for assistance. He said that, in early September 1964, he employed Gary Tubbs, who was a licensed boiler operator with prior maintenance experience. Tubbs was inter- viewed by Galvi and employed in the maintenance department at $2.50 per hour. In addition, two men were transferred from the Cadillac Plastic and Chemical Company plant in Detroit to work in the maintenance department. John Sweatman was a licensed boiler operator and had been previously employed at the Detroit plant in maintenance work where he developed a familiarity with the processes and instru- mentation of that plant which are similar to those at the Howell plant. Sweatman, like Tubbs, worked out satisfactorily, according to Galvi, and they are still employed.3 The second transfer from Detroit, one Belanger, was found incompetent for mainte- nance and was dismissed shortly after his transfer. The addition of Tubbs and Sweatman resulted in the Company having six mainte- nance employees on its staff in early November 1964, although only five were needed. 2 It is unnecessary to decide whether or not Opper was an "employee" or an "independent contractor" while he was performing painting work for Respondent It is enough to find, as I do, that from September 1963 until February 1964, when the painting work was completed, he did painting only, apparently without complaint. 8 Tubb's hourly rate was 30 cents per hour more than Opper's, and Opper stated that Sweatman was hired at a much higher rate than he was receiving. 1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the credited testimony of General Manager Galvi, Respondent had two production lines operational and producing a commercial product in the summer of 1964, but was exerting great efforts to get the third line into operation and producing a salable product. Respondent hired extra personnel to help effectuate this purpose, but despite its increased effort, the line continued to turn out scrap, and Respondent decided to abandon the effort temporarily because of the heavy cost and to restudy the problem. Since Respondent had staffed for a third line, it was necessary to cut back employment because of the indefinite future of the line's production. It was decided that approximately 12 employees would be laid off, but since 4 quit, the Com- pany had to lay off only 8, including Opper. There is no contention that the general layoff was discriminatorily motivated. Opper's selection for layoff, however, is claimed to have been based upon discrimi- natory considerations. Tomsick testified that three of the maintenance men on the payroll, namely, Clarence Petrie, Joe Petrie, and George Relyea, had more seniority than Opper and were well acquainted with Respondent's operations because they had been employed since the plant opened. Although Tubbs and Sweatman were junior to Opper, in Tomsick's opinion they were more qualified and experienced. In addi- tion, as already indicated, he stated that he had an understanding with Opper when he was put on maintenance after the painting work was finished, that he would be let go when competent maintenance men were found. On the basis of these considera- tions, he felt that Opper was the extra man of the six employed and should be laid off. Opper's version of the events just prior to his layoff is somewhat different from Respondent's. He testified that when John Sweatman was hired in October 1964, he was assigned to "break in" the new employee. He agreed that the employment of Sweatman was an indication that one of the other maintenance employees would eventually be displaced. Opper worked with Sweatman for 2 or 3 weeks, and, accord- ing to Opper, Tomsick then told him that he thought that Sweatman could handle the job and he was now "going to let him try it for a couple of weeks." Sweatman then continued to do maintenance work on his own, and, apparently, Opper went back to painting at Tomsick' s suggestion. According to Opper, Tomsick told him at the end of the shift on November 13, 1964, that he was being laid off and that "another man had taken my job." Opper conceded that there was some discussion about a production job for him, but his ver- sion appears to be that Tomsick tried to discourage him from taking it. He said that he told Tomsick that there ought to be something for him in Respondent's employ, but that Tomsick said there was nothing at the time .4 Opper also testified that his work was always satisfactory, that he never had been reprimanded, but to the contrary, had received compliments from supervision. As an indication of his reliability, he said that sometime in October 1964 he worked two full shifts, 7 days a week for 3 weeks, during the illness of another maintenance man. Under cross-examination, he was unable to recall a reprimand from General Manager Galvi or remember certain suggested incidents of pump failures. Tomsick and Galvi testified about their conversations with Opper when he was laid off. Tomsick said he decided to lay off Opper because he was the least qualified, but he secured Galvi's permission to offer Opper a production job. He called Opper to his office, told him that it was necessary to reduce employment, and reminded Opper of their earlier understanding that his employment in maintenance was on a temporary basis. He then offered Opper a job at $1.85 per hour, operating a machine which chops scrap for later use in the process, but Opper replied that he did not want a pro- duction job. Galvi corroborated Tomsick's testimony that he offered Opper a job cutting scrap, but Opper turned it down. I find that Opper was offered the chopper job as testified to by Galvi and Tomsick.5 Regarding Opper's performance as a maintenance man, Galvi and Tomsick both recalled incidents reflecting adversely on the employee. Galvi said he criticized him once for using an improper wrench which could have damaged a piece of equipment, and Tomsick testified that Opper 's work on a pump had to be redone by others on two occasions. Galvi and Tomsick also denied that Opper "broke in" Sweatman in any teaching or training sense , and they agreed that Opper merely showed the new employee around the plant.6 With respect to Opper's claim of working two full shifts, 4 Galvi was also present during a part of Tomsick 's discussion with Opper. s Subsequent to Opper's layoff, Relyea , another maintenance man, was replaced because he was unsatisfactory . Respondent offered him the chopper job which Opper had refused, and he accepted it. e Sweatman testified that he got no instruction from Opper when hired . I credit his testimony. DAYCO CORPORATION 1463 7 days a week for 3 weeks, they credibly explained and offered records to establish that Opper was offered the overtime because it was hunting season and others did not want it, and that, in any case, Opper worked substantially less overtime in the period in question than he said he did. 2. Analysis and conclusion in Opper's case Although Opper was instrumental, directly or indirectly, in securing all the union authorization cards which were submitted to the Board in the election case and in the proceeding before me, and although there is evidence of company animus toward the Union, this is not a case where these factors and the timing of the discharge, con- sidered in the light of defects in the reason offered to explain a termination, will sup- port the conclusion that the asserted reason is pretextual and the real one was dis- criminatory. Respondent had legitimate business reasons for its general reduction in staff in November 1964, and for its elimination of a maintenance employee. Opper was originally hired as a painter, and I have credited Respondent's evidence that it had difficulty finding qualified maintenance people and, because of this, took Opper on in maintenance in January 1964 on a temporary basis. Although he worked from then to the end of the year without any serious incidents, I credit Tomsick's and Galvi's testimony that his work was not as satisfactory as Opper would have it and their explanation of Opper's exaggerated version of the overtime he worked. It also appears that Sweatman and Tubbs, who were hired after Opper, were qualified main- tenance employees with greater experience than Opper at the trade. It is of some significance that both were hired at a higher hourly rate than Opper was receiving. Finally, Opper was offered a production job at $1.80 per hour, and this would have permitted a key union man to be in the shop prior to and during the Board election. While there are many subtle techniques of discrimination, the offer does not seem to have been spurious-it was the same one Relyea accepted-and so I find in it some evidence that Respondent was not trying to rid itself of a union activist. I credit Respondent's version of the circumstances supporting and the reasons involved in Opper's layoff, and I find and conclude, therefore, that General Counsel has not estab- lished by a preponderance of the evidence that Respondent discriminated against Opper in violation of Section 8(a)(3) and (1) of the Act. B. The evidence as to alleged violations of Section 8(a) (1) of the Act; findings and conclusions with respect thereto The alleged acts of interference, restraint, and coercion relate primarily to cer- tain statements of Shift Supervisor Benjamin Gray just before the Board election in January 1965. Gray had been a rank-and-file employee up to November 1964, when he was appointed shift supervisor. Respondent had four shift supervisors at the time of the occurrences in question, and Gray supervised about five or six employees. Employee Ronald Racine testified that, on January 15, 1965, Gray told him he wanted to speak to him and Racine went to Gray's office. Gray asked Racine how he felt about the Union, told the employee he would be better off without a union, and showed him a list of employees who he said were going to vote for the Union in the coming election. Gray also said that he thought the Company would give the employees a 10-cent raise if the Union did not win the election. Gray told employee William Stanley on January 10, 1965, that he wished to see him after working hours. When Stanley met Gray, Gray asked him if he was going to vote for the Union and showed him a list of employees whom he claimed were voting for the Union. Stanley told Gray he was going to vote "no," and Gray said that he couldn't promise anything, but he had heard that there would be a 10-cent raise if employees did not vote for the Union. Stanley conceded that he also asked Gray for his opinion of the Union and that Gray told him that unions were needed in some companies but not at Howell. Employee Solomon Braswell testified that, having heard his name was on a list of union adherents, he approached Gray on January 17, 1965, and asked him if it was so. Gray agreed that it was a fact and said there was talk in the shop that Braswell was a union man. Braswell told the supervisor that he was not for the Union and knew nothing about unions. He said that Gray stated there was nothing wrong with unions but that employees did not need one at the moment. Gray told Braswell dur- ing this conversation that if the Union was unsuccessful in the Board election the employees would get a raise. 1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gray also asked employee Richard Wonch on January 15, 1965, how he was going to vote in the election, according to the employee, and Wonch said he was going to vote against the Union. Wonch testified that Gray "said something about if the union was voted out, we would probably get a raise." Employee Leonard Buckelew also recalled a conversation with Gray, on or about January 15, 1965, in which the Union was mentioned. He said he asked Gray if he knew anything about a list of names in the company office. He said Gray did not answer him, and he was also unable to recall who started the conversation. Buckelew also testified with more certainty, however, that Gray said the employees would get a raise if the Union lost the election. Ronald Sell testified that Gray asked him to come to his office during his rest period. During the conversation in Gray's office, Gray asked Sell for his opinion about the coming election, and Sell said he was going to vote against the Union. Sell said Gray said "something" about a 10-cent an hour raise if the Union were defeated and also showed him a list of names of employees who Gray thought were going to vote for the Union. According to employee Richard Wagner, while he and some other employees were talking about the Union in the Company's lunchroom before the election, Gray joined them and asked them what "they thought of it," and they in turn asked Gray for his opinion. Wagner testified that Gray responded that he did not think it was a "good idea" and that if the employees wanted a union, they ought to get the Chemical Workers Union or start a union of their own, because the Teamsters was a truck- driver's union. Gray also said that the employees "may" get a raise if the Union lost the election. The employee conceded that he had asked Gray for his views about the Union once before, that he also asked Supervisor Phillips for his opinion, and had asked "most everyone down there" for their thoughts about the Union. Benjamin Gray was extremely vague and uncertain about the time, place, or content of his talks with the employees as just described. He testified that Racine's testimony was "news to him" and he could not remember what was discussed. Simi- larly, Gray could not recall the Stanley conversation, but he admitted that he talked with the employee and told him that it was "a little early for a union." According to Gray, Stanley came into his office uninvited, told Gray that he had never belonged to a union, and sought his advice. Gray said he could not remember any discussion about a raise, but he did not "think" there was. Gray testified that his talk with Racine was "the same" as the one with Stanley, but he said he never told Racine that he would get a raise. Gray could not recall the Braswell conversation at all, but he said there was a rumor about a wage increase, and, when employees questioned him about its basis, he told them he didn't know whether it would happen or not. Gray could not remember the Sell or Wagner talks, but he stated that his con- versations with employees about the Union "overlapped" the periods of his employ- ment as a rank-and-file and as a supervisor. Gray had been a member of the Chemical Workers Union, he said, and, according to him, talked about that union to employees before he was promoted. He denied that he "promised anything" to employees, but he "thought" that he told them it was a "little early" for a union at the Howell plant. Although Supervisors Wright and Phillips were not claimed to have been involved in conversations, discriminatory or otherwise, with employees, they were called by Respondent to testify about certain employee statements in the union area. Wright said employee Wagner came to him and asked him "how a union worked." Another employee asked him if there would be a raise if the Union lost the election, and he said that he told the employee that he had heard nothing about it and that there was "nothing to it. " Phillips was made shift supervisor in September 1964. He testified that Solomon Braswell and another employee told him in January 1965 that they had heard about a possible pay raise, but he told the employees he knew nothing about it and "to forget it." He also stated that employees Wagner, Barbour, and Sell had asked him about the Union in January 1965. He recalled Wagner telling him that he was inexperienced and asking for his opinion. He said he gave the employee the "good points and the bad" about unions, told him that the Union might get them a raise, but Respondent was a "young" company and the union movement was pre- mature. He said he told the employee to make up his own mind. I credit the testimony of the employees about their talks with Gray in its essentials. Although employees may have on occasion approached supervision with questions about the union idea, and although the word "promise," in all probability, was never used, it is evident to me, based upon the employees' testimony and my recall of their demeanor as contrasted with Gray's and his poor memory, that Gray questioned DAYCO CORPORATION 1465 them about the Union, showed some of them a list of employees who he said would vote for the Union, and held out the lure of a wage increase after the election was over and the Union defeated. 7 I conclude that by interrogating employees about their union desires, in the cir- cumstances of this case; by creating the impression of surveillance of the employees' union activities ; and by promising employees a wage increase in order to dissuade them from voting for the Union, Respondent interfered with, restrained, and coerced employees in violation of Section 8(a) (1) of the Acts The complaint also alleged that Respondent, by Plant Superintendent Jack Tom- sick, promised employees economic benefits in order to dissuade them from voting for the Union. The record contains a letter sent to all employees on January 15, 1965, over Tomsick's signature. The letter refers to letters the employees had recently received from George Carlyon and Al Galvi, officials of Respondent, ". explaining the very serious choice which faces you in the coming election." This choice was described in Tomsick's communication as ". . . continuing to deal with us individually, or as a group, or having an `outsider,' a Union, who does not under- stand your troubles or ours trying to represent you." Tomsick then referred to production problems, but indicated that he felt that Respondent was not over the "hump" and with the continued "help and cooperation" of employees "should soon be operating a successful plant." The next paragraph of the letter states: Our top management has been very patient and understanding , considering the tremendous amount of money they have spent making changes and additions which we felt necessary to reduce our heavy losses. I feel they are most anxious and ready to reward a successful effort, and that we owe them a vote of confi- dence for their efforts and to re-affirm their faith in Howell Plastics. The letter concludes by mentioning loss of wages during strikes, and plant removals, because of ". . . problems and conflicts caused by union interference in management affairs," and urged employees to vote against the Union in the coming election. In my opinion, and I find, the letter contains a not very subtle promise of reward in the statement that "they are most anxious and ready to reward a successful effort...." By such promise, Respondent violated Section 8 (a) (1) of the Act .9 C. The refusal to bargain collectively with the Union 1. The appropriate unit The complaint alleged , the answer admitted, and I find that: All production and maintenance employees employed by Respondent at its Howell, Michigan, plant, including shipping and receiving employees, produc- tion and laboratory assistants , and quality control employees , but excluding office clerical employees, professional employees, guards, and all supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act.10 2. The Union's majority status On October 20, 1964, the Respondent received a letter from the Union demanding that Respondent recognize and bargain with it. October 20, 1964, therefore, is the critical date on which it must be shown that the Union had majority status.11 There are 60 unit employees on a list of employees in evidence against which the 31 union designation cards submitted by the Union must be compared.12 7 Although Richard Wagner was also a credible witness, in my opinion, 'I do not think that his reference to Gray's statement about the Teamsters being a truckdriver's union is evidence substantial enough to support a finding that Respondent engaged in a separate violation of Section 8(a)(1) of the Act. 8 N.L R.B. v. Exchange Parts Company, 375 U S. 405 ; Hendrix Manufacturing Com- pany, Inc. v. N.L.R.B., 321 F. 2d 100, 104, footnote 7 (CA. 5). I find nothing in Super- visors Wright's and Phillips' testimony to neutralize the coercive nature of Gray's activities. Cf. NL.R.B. v Austin Powder Company, 350 F 2d 973 (C.A. 6). 0 N.L R.B. v. Exchange Parts Company, supra 10 This is the unit found appropriate in the Director ' s Decision and Direction of Elec- tion, dated December 2, 1964. 11 Rea Construction Company, 137 NLRB 1769. 12 G. Belanger, whose name appears on the list, was terminated by transfer to another plant on October 19, 1964, and is not properly in the unit. 1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Respondent concedes that the Union had in its possession 31 authoriza- tion cards from employees in the unit on the date when Respondent received the Union's demand for recognition, it disputes the validity of the cards on the asserted ground that they were obtained for the limited purpose of only securing a Board election.13 The union authorization cards are in the following form: AUTHORIZATION FOR REPRESENTATION I, the undersigned, employed by (Name of Firm) believing that the working conditions of all employees may best be improved through organization, hereby authorize Local Union No. 580 to represent me and, in my behalf, to hold elections, negotiate all agreements as to hours of labor, wages and other employment conditions. It being further understood, that my name on this Authorization Card shall, at all times be held strictly confidential. Department Date Signature Address Phone The card mentions "elections" in addition to authorizing the Union to represent employees, but this does not make the card an invalid designation of a labor orga- nization as bargaining representative.14 But if the purpose of the card was misrep- resented to employees by representing that its sole end was the obtaining of an elec- tion, then the cards are not reliable designations of the union for this type of case.'' Austin Opper testified that he talked with all but a few employees about signing a union card and some of the cards were signed in his presence. He could not recall the number, but it appears that many of the cards were distributed by other key employees and returned to Opper after execution.16 Opper got the union cards from Kenneth Drouin, assistant to the union president, and he said he thought Drouin told him at the time that if a majority of employees signed the cards an election could be obtained. Opper could not remember how many employees he made a similar statement to, but he said that, since there had been considerable discussion in the plant about organizing a union before he obtained the cards, it was usually only necessary to inform a particular employee that he now had the cards and the employee would then sign without further discussion. Opper admitted that he told employee Jack Frost that he needed his signature to "get the majority of the votes" 17 and told Ron Sober that he needed his to get a majority of cards "in order to have an election, so that the Union could represent us." 18 Opper also said that the cards had two purposes, the first being representa- tion by the Union and the second'the obtaining of an election.19 Respondent also points to the testimony of certain employee witnesses in support of its contention that the authorization cards had a limited purpose. Employee Richard Wagner testified that Opper told him "we would have to have an election" 13 Englewood Lumber Company, 130 NLRB 394; Morris i Associates, Inc, 138 NLRB 1160. 1s Lenz Company, 153 NLRB 1399; The Shelby Manufacturing Company, 155 NLRB 464; Wsnn-Dixie Stores, Inc, 147 NLRB 788, enfd. 361 F. 2d 512 (CA. 6). 16 See cases cited footnote 13, supra. 18A handwriting expert compared the signatures ' on 21 cards with known specimens and testified that they were authentic. Ten employees, whose cards were not included in the expert 's examination , identified their own signatures , and four other employees, whose signatures had been previously authenticated by expert testimony, also identified their own signatures . Thus , 14 employees testified, or were available for examination, about the circumstances surrounding their execution of cards. 11 Frost testified that Opper gave him a card , asked him if he was "for the Union," and, when he said he was, asked him to sign , which he did. 18 Sober testified that Opper asked him if he were interested "in having a union in the shop" when be presented a card to him. He also said he understood the card was to join the union" and "probably" for an election. Employee Stanley said Opper merely told him he had the "card for the Union." 11 Solomon Braswell testified that Opper told him the card would mean "better work- ing conditions." DAYCO CORPORATION 1467 when he handed him the union card. Richard Wonch said he just "glance[d]" at the card and signed it to "get the union in or bring- it to a vote." He added that the purpose was to "bring the Union in so we could vote on it." 20 I do not believe that the record in this case will support a finding that the employees were told that the sole purpose of executing union cards was to enable the Union to obtain an election. In the first place, by signing a card the signator authorized the Union to represent him, and although there can be no question that discussions must have occurred between the solicitors and the card signers in which an election was mentioned, this is not inconsistent either with the stated dual purpose of the card or the testimony of Opper and others that the employees were interested in "getting a union" and obtaining "better working conditions." 21 It is, perhaps, practically impossible to reconstruct the situation exactly as it existed during the organizing campaign and determine precisely what was said by the solicitor and solicitee. Opper credibly testified that there had been much talk about a union before he brought the union cards into the plant and that in many cases he merely presented the card to an employee who signed it without further explanation.22 Opper found it as difficult to be precise about what he said as did some of the employees. Although he testified that he told some that he needed their signatures in order to get a majority of cards "in order to have an election," he also stated that "we had to get the cards first to be represented" and an election ". . . didn't come before being represented." Opper's testimony, therefore, like the testimony of the employees, is consistent with the dual purpose stated on the card. I find that the solicitors of the cards did not represent that they were to be used only to secure an election, and that there is no evidence of any significance to negative the overt action of the employees of having signed cards designating the Union as bargaining agent 23 None of the cards, accord- ingly, are invalidated because of misrepresentations with respect to a possible elec- tion, and I find and conclude that the Union represented a majority of Respondent's employees in an appropriate unit on October 20, 1964, when it requested recognition and bargaining. 3. The alleged refusal to bargain The Union requested recognition and bargaining by letter of October 19, 1964, and the Respondent refused it in its reply of October 21, 1964, in which it suggested a Board election. The Board's Regional Director directed an election on December 2, 1964, and an election, which the Union lost 26 to 10, was held on January 21, 1965. The Union filed charges of unfair labor practices and objections to the election and the Regional Director set the matters for hearing on complaint and supplemental decision in which he seeks an order setting aside the election and an order to bar- gain with the Union as the statutory representative of the employees on the basis of the authorization cards the Union had in its possession before the election.24 An election is not the only means by which a.union's representative status may be determined,25 and it is well settled that where authorization cards have been signed by a majority of employees, the employer violates Section 8(a)(5) of the Act if he refuses to recognize and bargain with the union, unless such refusal is motivated by a good-faith doubt of the union's majority status.26 If the employer refuses to bar- gain because it rejects the collective-bargaining principle or desires to gain time within which to undermine the union and, dissipate its majority, the violation of Section 8(a)(5) is apparent. In determining whether the employer's action was taken to achieve either of said invalid purposes, consideration must be given to all 20 Respondent contends Clute's card is invalid because Clute intended to quit Respond- ent at the time he signed the card. Clute was in the unit, however, and his card may be counted. If Clute's name is removed from the payroll and his card not counted, the Union would still have 30 of 59 employees, which is a majority. 21 Testimony of Opper, Sober, Braswell, and Stanley. 22 Rodney Sober, for example , who said he signed "to join the Union" and also for "an election," said he didn't read the card at the time because he had read one before., 23 Winn-Dixie Stores, Inc, et al , 143 NLRB 848, enfd. 341 F. 2d 750 (C A. 6) ; S.N C. Manufacturing Co., Inc., 147 NLRB 809, enfd. sub nom. International Union of Elec- trical, Radio and Machnne Workers, AFL-CIO v. N.L R.B., 352 F. 2d 361 (C A.D.C.) , The Shelby Manufacturing Company, supra. 21 Bernet Foam Products Co , Inc., 146 NLRB 1277; Irving Air Chute Company, Inc., Marathon Division, 149 NLRB 627; Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d (C A.D C ), cert. denied 341 U.S. 914. Z United Mine Workers of America v. Arkansas Oak Flooring Co , 351 U.S. 62, 71-72. 20 Joy Silk Mills, Inc., supra ; Wann-Dixie Stores, Inc ., et al., supra,; N L.R.B. v. Cum- berland Shoe Coi p., 351 F. 2d 917 (C. A. 6). 1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "relevant facts in the case, including any unlawful conduct of the employer." 27 I have found that, shortly before the election in this case, Supervisor Gray interrogated employees about their union sympathies, indicated that Respondent knew how employees were going to vote by his reference to a list of employees, and promised employees a raise if the Union were rejected. In addition, Superintendent Tomsick urged the employees to vote against the Union and clearly implied that they would be rewarded for doing so. Respondent urges, however, and properly so, that the character and extent of the unfair labor practices must be considered, because the mere finding of a violation of Section 8(a)(1) does not automatically raise a pre- sumption that an employer acted in bad faith by refusing to bargain with the union.28 In the recent Hammond & Irving case,29 the Board, in dismissing a refusal-to-bargain charge, noted that "there are some situations in which the violations of the Act are not truly inconsistent with a good-faith doubt that the union represents a majority of employees." In that case it appeared that the respondent engaged in conversations with 6 employees in a unit of approximately 110, and the Board said that such inter- rogation, "while unlawful, was not so flagrant that it must necessarily have had the object of destroying the Union's majority status." Respondent also reminds us that we have been told that even if an employer is found to have interfered with employees in violation of Section 8(a) (1) and to have refused to bargain, "the appropriate remedy must be fashioned to meet the situation presented in each particular case and often depends on factual differences seemingly slight ...." and that a bargaining order based on Section 8(a)(1) violations is "strong medicine." 30 Although I cannot take issue with the quoted language or cited principles, it seems to me that the violations of Section 8(a)(1) of the Act in this case strongly indicate that Respondent's refusal to bargain was in bad faith, and I so find. Gray, it is true, was but one of four shift supervisors in charge of five or six employees, but he was in full charge of his shift, and the employees under him con- stituted more than 10 percent of the electorate.31 Gray talked with at least six employees just before the election, and the substance of his remarks, it is reasonable to infer, would rapidly spread around the plant.32 Some of Gray's interviews took place in his office to which he had summoned the employee. Interrogation about the individual's union attitudes or intentions in the election was coupled to real or pre- tended awareness of the intentions of others and was then larded with the lure of a wage increase conditioned upon the Union's defeat. Gray's statement must have been "strong medicine" for the voters, because some of the employees he talked with told him that they were against the Union, despite the fact that they had signed union cards. Gray's interviews and comments, taken with Tomsick's written promise of reward and Respondent's general appeal for a "no" vote in its letters to employees, must have exercised a potent influence in the election, which the Union.lost 26 to 10, and I have no doubt that it should be set aside because of Respondent's interference. I am also of the opinion that the same effective interference with employee rights in violation of Section 8(a)(1) of the Act just before the election demonstrates that Respondent refused to bargain with the Union in order to gain time to defeat it in the election and because it rejected the principle of collective bargaining 33 Although expertise, it may be assumed, is the administrative agency's scale, test tube, or Geiger counter, and granting -that the spectrum of unfair labor practices is wide, assigning weights labeled "minimal" or "flagrant" to unfair labor practices, particu- larly those which take place during the sensitive election period, and which were 27 Joy Silk Mills , Inc., supra. 28 Hammond & Irvinq, Incorporated, 154 NLRB 1071; Glynn Campbell , d/b/a Piggly Waggly El Dorado Co ., 154 NLRB 445. 2D Supra. 30 Irving Air Chute Co. , Inc. v. N.L.R.B , 350 F. 2d 176 (C.A. 2) ; N.L.R.B. v Flomatic Corp ., 347 F. 2d 74 (C.A. 2). 21 Employment had shrunk to approximately 40 employees at the time of the election because of the November layoff. 12 Gray's discussion with employee Wagner, during which he mentioned a wage increase, took place in the Company's lunchroom in the presence of other employees . Similarly, employees Buckelew and Braswell heard about the list of prounion voters, which Gray had in his office, from other employees , because they approached him and asked him about its existence. =I note in this connection that although it argued in the representation case that the petition should be dismissed because its employee complement might triple in the future if production problems were solved , Respondent 's appeal to employees before the election was not to postpone having a union but to reject one completely for reasons stated. DAYCO CORPORATION 1469' designed to or had the necessary effect of tainting the election, is bound to be a rather inexact procedure, it seems to me, because no one can say with any certitude whether an illegal discharge, which, as every one knows, "goes to the very heart of the Act," 34 weighs more on the industrial scales than five acts of interrogation and a promise of benefit.35 Experience assures us, for example, that some who succumb to promises, bridle at threats. In any case, I have examined the decisions and surveyed Respond- ent's conduct. In my view, Respondent's interference with the election was of a serious nature and its conduct was more like the employer's conduct in Joy Silk Mills 36 and Irving Air Chute 37 than that found in Hammond & Irving 38 or Flo- matic Corp .39 I find that Respondent's refusal to bargain with the Union upon request was in bad faith and that by such conduct Respondent violated Section 8(a)(5) and (1) of the Act. D. Objections to conduct affecting the election Having found that the Respondent promised its employees economic benefits in an effort to dissuade them from voting for the Union in violation of Section 8 (a) (1) of the Act as alleged in the complaint, which allegation parallels union objection 2(a), set forth in the complaint, I find merit in the objection and will recommend that the election heretofore held in Case No. 7-RC-6543 be set aside 40 Since I have found that the Respondent refused to bargain with the Union in vio- lation of Section 8(a)(5) of the Act and will recommend that it be ordered to bar- gain with the Union, I will not recommend that a new election be conducted, but do recommend that the petition be dismissed and all proceedings vacated in said repre- sentation case. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE AND CONDUCT AFFECTING ELECTION The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take cer- tain affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent refused to bargain in good faith with the Union, it is recommended that Respondent bargain upon request with the Union and embody any understanding reached in a signed agreement. , Upon the basis of the above findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in 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. 3. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is. engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act- 34 N.L.R.B. v. Entwi8tle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). 35 Compare the Board 's treatment of the effect of any unfair labor practice on, an election . Dal-Tex Optical Company, Inc., 137 NLRB 17,82. 33 Supra, footnote 26. 37 In Irving Air Chute Co., Inc. v. N.L.R.B., supra, footnote 30, the court pointed out that the Flomatic case, in which it had refused to enforce the Board's Order, involved "only a minimal Section 8(a) (1) violation and no demand and refusal to bargain " The in- stant case does, of course, involve a demand and a refusal. 38 Hammond & Irving, Incorporated, supra, footnote 28, involved interrogation only. 33 Supra, footnote 30. 10 The Board has held that conduct violative of Section 8(a) (1) of the Act is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an elec- tion. Dal-Tex Optical Company, Inc ., 137 NLRB 1782. 1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. All production and maintenance employees employed by Respondent at its Howell, Michigan, plant, including shipping and receiving employees,-production and laboratory assistants , and quality control employees , but excluding office clerical employees, professional employees, guards, and all supervisers as defined in the Act constitute a unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material since October 19, 1964, the Union has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. (6) By refusing to bargain with the Union as found above on or about October 21, 1964, and thereafter, Respondent engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 8. Respondent did not discriminate against Austin Opper in violation of Section 8(a) (1) and (3) as alleged in the complaint. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Dayco Corporation and Cadillac Plas- tics and Chemical Company, successor to Howell Plastics Company, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive representa- tive of its employees in the appropriate unit found herein. (b) Interrogating any of its employees with respect to their views or sympathies for the Union, or any labor organization, or about their voting intentions in a Board election. (c) Creating the impression of surveillance of the union activities of their employees. (d) Promising benefits to employees in order to dissuade them from voting for the Union or engaging in other union or concerted activities. (e) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Bargain with the Union, on request, as the exclusive representative of the employees in the appropriate unit found herein with respect to wages, hours, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Howell, Michigan, plant, copies of the attached notice marked "Appendix." 41 Copies of said notice, to be furnished by the Regional Director for Region 7, shall, after being duly signed by Respondent or its representatives, 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 to employees 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 said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.42 I also recommend that the election held in Case No. 7-RC-6543 be set aside and all proceedings in that case vacated. "I 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." "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to ready "Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " MORRIS NOVELTY CO., INC. 1471 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 Rela- tions Act , as amended, we hereby notify our employees that: WE WILL bargain collectively in good faith with Local Union 580 , Interna- tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, Ind., as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, and other conditions of employment , and, if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees at our Howell, Michigan, plant, including shipping and receiving employees, production and laboratory assistants , and quality control employees , but excluding office clerical employees , professional employees , engineering employees , guards, and supervisors as defined in the Act. WE WELL NOT promise employees benefits to get them to vote against a union or give up their union activities. WE WILL NOT make statements or engage in conduct designed to give employ- ees the impression that we are keeping them and their union activities under surveillance. WE WILL NOT interrogate employees about their union activities or desires. WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of the right to self-organization , to form labor orga- nizations , to join or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DAYCO CORPORATION AND CADILLAC PLASTICS COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 500 Book Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. 226-3200. Morris Novelty Co ., Inc. and United Industrial Workers of Sea- farers' International Union of N.A., AFL-CIO. Case No. 14- CA-3448. April 6,1966 DECISION AND ORDER On July 14, 1965, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- 157 NLRB No. 121. Copy with citationCopy as parenthetical citation