Donn Products, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1977

229 N.L.R.B. 116 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donn Products, Inc. & American Metals Corporation
and United Furniture Workers Local 450, United
Furniture Workers of America, AFLCIO. Cases
8-CA-9464 and 8-RC-9998
April 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On October 18, 1976, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel, Res-
pondent,' and the Charging Party filed exceptions
and a supporting brief, and Respondent filed a reply
to the General Counsel's and the Charging Party's
exceptions. The Charging Party filed a brief in
opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, 2
findings, 3 and conclusions 4 of the Administrative
Law Judge to the extent consistent herewith.
1. The Administrative Law Judge found that
Respondent's president, Donald Brown, did not
announce in advance that if the Union were certified
Respondent would not bargain in good faith.
The General Counsel and the Charging Party have
excepted, contending that the Administrative Law
Judge incorrectly failed to consider the entire record
on this issue, particularly the transcripts of the
Union's tape recording of speeches made by Brown
at employee meetings on September 5 and 8, 1975.5
They argue that, although he properly admitted these
transcripts into evidence, he ignored them and
incorrectly subsequently referred to the evidence on
the issue of bad-faith bargaining as "nebulous,
vague, indirect." We find merit in these exceptions.
Brown's speech on September 8 is a long rambling
discussion. On several occasions he made statements
that indicate he was willing to engage in a type of
' Donn Products, Inc., and its wholly owned subsidiary, American
Metals Corporation, are referred to herein collectively as Respondent.
2 The Administrative Law Judge credited the testimony of employee
Gerald Wasik with respect to Company President Brown's remark regarding
plant relocation. Although he admitted a transcript of these remarks into
evidence, he made no reference to it. It is, however, not necessary to make
any modification in the Administrative Law Judge's finding since Wasik's
recounting of Brown's remarks is substantially the same as the transcribed
account.
i1 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
229 NLRB No. 9
bargaining which amounts to no more than a show.
Thus Brown stated:
As I mentioned to you before, I am not inclined
to be forced to do anything. It is a free country, I
am a free man, and I believe that I ought to be
able to do what I believe I have to do and, that is,
I'll bargain; but it's like leading a horse to water.
When he's got his head under water, you don't
know for sure he is drinking, but then you've got
to practically drown the horse before he drinks
enough water, before you bring him out.
So this is how the battle starts ...
* * * * *
The length of negotiations has to do with how
long do you hold the horse's head under the
water. Finally he wants a drink of water and he
comes up, so he talks for a little bit, a little while,
and goes back and forth. And, as I pointed out, a
lot of it is for show.
Brown then went on to make it clear that the
employees' only hope of obtaining an agreement was
to call a strike with the possible loss ofjobs:
[I]f I decide I'm not going to do
something and it doesn't matter what it is, there's
no law in this country that says I have to.
So then we start down the line: "How far are
we going to carry this out?" Well, this is what
happens-it's very simple-we reach the point of
impasse. That's really easy to [r]each, a point of
impasse.
You say, "Well, you got to keep talking," and
you've got to keep talking and negotiating with
the union or you've got to be continuing to
negotiate in what they call good faith. I am an
expert. That is negotiating in good faith, because all
you've got to do, I am sure, is keep talking and keep
talking and keep saying no until finally you all
decide to go on and step outside and stand outside
the same stake that this union is trying to get in, but
now my employees step out and join them and they
stand out there, outside of that stake. [Emphasis
supplied.]
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
4 We agree with the Administrative Law Judge's conclusion that Brown's
remarks regarding plant relocation were in violation of Sec. 8(aXl) of the
Act. They occurred against a background of threats, interrogations, and
promises and grants of benefits. In this context, Brown's talk about
Respondent's ability to move the plant wherever it wanted constituted a
threat of economic reprisal in the event the Union won the election.
5 All named months and dates refer to 1975, unless otherwise indicated.
116
DONN PRODUCTS, INC.
Don't forget. You can't step on our front lawn,
and we'll put up a few more stakes to be sure that
our own employees don't come back in again,
because when you are on strike it's no longer your
company, it's not your company any more. You
have decided that you are going to go somewhere
else and you won't come back to work unless you
get whatever your demand is.
Brown then told the employees in effect that he
would resist any union proposal by asking it to take
less. He again told the employees that if they selected
the Union they would face a long strike and the loss
of benefits they presently enjoyed:
Well, how do you cause the company to hurt?
You try and get even with us for not negotiating
as much as you think you would like to have and,
therefore, you go out on strike, and you step out,
pick up your signs, and there you are.
Now, it's very simple. When are you going to
come in? We'll come in when our demands are met.
[Emphasis supplied.]
"When are your demands met?" You know I
am going to have to be the one to meet them. So,
now time goes by and the talk behind the scenes
naturally is, "I wonder when they are going to be
tired of losing money by sitting out there and
wanting to come in, and how much do they think
they are going to get? How much extra do they
think they are going to get?" And all these
favoritisms and all these other little things that
you are talking about, and some of them are
pretty small, how long are you going to stay out
there? Well, it's your guess; it's my guess.
Thus, Respondent repeatedly stated that it intend-
ed to engage only in sham bargaining and force the
employees into a position where they had to strike.
Respondent thereby conveyed to employees the
futility of choosing union representation and present-
ed them with only a choice between striking and no
union.s In so doing, Respondent restrained and
coerced employees in violation of Section 8(a)(l) of
the Act. 7
2. The Administrative Law Judge found, and we
agree, that the Union represented a majority of
Respondent's employees when its demand for recog-
nition was refused on July 9. However, he found that
while Respondent's unfair labor practices warranted
the setting aside of the election they were not serious
enough to prevent the holding of another election.
We disagree. In our view there is little or no
6 Boaz Spinning Companrt, Inc., 177 NLRB 788 (1969).
7 Princeton Sportswear Corporation of Pennsylvania, 220 NLRB 1345,
1347 (1975); Si Anne's Home, Division of De Paul Community Health Center,
221 NLRB 839, 844 (1975).
likelihood that a second and fair election could be
conducted in the face of the Respondent's far-
reaching unfair labor practices, and a bargaining
order therefore is required to protect the employees'
representational rights.
Here, Respondent's unlawful conduct began early
in the union campaign, continued through the
election, and resulted in the dissipation of the
Union's majority status. Thus, Respondent interro-
gated and threatened to discharge Steyer, a member
of the union organizing committee, and threatened to
prosecute employee Wasik for distributing union
literature in the plant. It granted benefits to employ-
ees by instituting an arbitration procedure during the
campaign and by materially assisting employees to
obtain personal bank loans. Finally, Respondent
made repeated threats that it would engage in sham
bargaining should the Union be selected, and
threatened economic retaliation by closing the plant
in the event the Union won the election.
These unfair labor practices, directly affecting all
of Respondent's employees, were intended to, and
did in fact, undermine the Union's majority strength.
In these circumstances, we find that "employee
sentiment, once expressed through cards, would, on
balance, be better protected by a bargaining order."
Having determined that the Union represented the
majority of the employees in the appropriate unit, we
find that Respondent violated Section 8(a)(5) and (1)
of the Act by refusing the Union's demand for
recognition. We further find that Respondent is
required to presently bargain, upon request, concern-
ing any terms and conditions of employment, as to
which it would have been required to bargain had the
Union been recognized on July 9, 1975, the date on
which the Union demanded and was refused recogni-
tion. We need not require bargaining as to anything
prior to July 9, 1975, since all of the violations
committed prior to that date are otherwise remed-
ied.9
3. Inasmuch as the Union has been the exclusive
representative of the employees in the appropriate
unit since July 9, we find that Respondent violated
Section 8(a)(5) and (I) of the Act by incorporating
the arbitration procedures into an employee manual
distributed in August. We shall order Respondent to
return to the status quo ante by rescinding the
arbitration procedure. We also find that Respondent
violated Section 8(a)(5) and (I) of the Act by
materially assisting employees to obtain personal
bank loans. We further find Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally
N.L. R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
9 Trading Port, Inc., 219 NLRB 298 (1975). Chairman Fanning, in
accordance with his concurring opinion in Trading Port, finds that the
obligation to bargain arose on the date of demand. July 9. 1975.
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transferring the work at its Berea, Ohio, plant to the
plants in Westlake and Medina, Ohio, in December,
without bargaining with the Union as to the decision
to transfer and its effects on the employees represent-
ed by the Union. While we now order Respondent to
bargain with the Union over the decision to transfer
and its effects, we find it unnecessary to order that
Respondent reestablish the Berea plant inasmuch as
the decision to transfer was based on economic
factors, all the 36 employees involved accepted
transfers to Respondent's other plants, and it would
place an undue burden on Respondent to reopen the
Berea plant.10 We also find it unnecessary to award a
backpay remedy, since the employees at the Berea
plant have accepted transfers to Respondent's other
locations without financial loss, and the Union has
retained its bargaining strength by continuing to
represent the employees at the Westlake plant."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Donn Products, Inc. & American Metals Corpora-
tion, Westlake, Ohio, their officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Failing and refusing to bargain collectively in
good faith with United Furniture Workers Local 450,
United Furniture Workers of America, AFL-CIO,
hereinafter the Union, as the exclusive representative
of its employees in the appropriate unit set forth
herein below concerning the decision to close the
Donn Products, Inc., plant at Berea, Ohio, and the
effects of the discontinuance of the plant on such
employees. The appropriate unit is:
All production and maintenance employees,
including shipping and receiving employees, plant
janitor, the paint technician, the chief inspector,
assistant foremen, leadmen and probationary or
production trainee employees of the Respondent
at its two facilities in the Cleveland area, namely,
Donn Products, Inc. and American Metals
Corporation, 1000 Crocker Road, Westlake,
Ohio, excluding office clerical employees, techni-
cal employees, engineers and draftsmen, produc-
tion clerk, foremen, and all professional employ-
ees, guards and supervisors as defined in the Act.
(b) Unilaterally, without prior notice to or consul-
tation with the Union, instituting a binding arbitra-
tion procedure.
'o Cf. Burroughs Corporation. 214 NLRB 571 (1974).
zt Cf. Mobil Oil Corporation, 219 NLRB 511 (1975); Interstate Tool Co.,
Inc.. 177 NLRB 686 (1969).
(c) Unilaterally, without prior notice to or consul-
tation with the Union, establishing a system of
materially assisting employees to obtain personal
bank loans.
(d) Refusing to bargain collectively with the Union
as the exclusive bargaining representative of the
employees in the appropriate unit.
(e) Granting its employees a binding arbitration
procedure in order to dissuade them from prounion
activities, establishing an unprecedented system of
materially assisting employees to obtain personal
bank loans, threatening to move its business to other
locations, interrogating employees about their union
activities and about the union activities of other
employees, threatening to discharge employees and
to prosecute them because of their union activities,
telling employees they would be disciplined more
harshly because of their union activities, promising
employees an improved bonus system to induce them
to abandon the Union, or threatening to bargain in
bad faith.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the right
to self-organization, to form, join, or assist the
Union, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the
Union as the exclusive representative of all employ-
ees in the appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody it in a written signed agreement.
(b) Upon request, bargain in good faith with the
Union with respect to the decision to transfer all the
work from the Respondent's plant at Berea, Ohio, to
the Respondent's plant at Medina, Ohio, and the
effects of the decision on unit employees, and, if an
understanding is reached, embody it in a written
signed agreement.
(c) Rescind the arbitration provisions which were
formally incorporated into Respondent's employee
manual distributed in August 1975.
(d) Post at its places of business in Westlake and
Medina, Ohio, copies of the attached notice marked
"Appendix." 12 Copies of said notice, on forms
provided by the Regional Director for Region 8, after
being duly signed by Respondent's representative,
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
118
DONN PRODUCTS, INC.
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by it to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the election in Case 8-
RC-9998 be, and the same hereby is, set aside, and
the petition filed in Case 8-RC-9998 be, and the
same hereby is, dismissed.
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to bargain collec-
tively in good faith with United Furniture
Workers Local 450, United Furniture Workers of
America, AFL-CIO, as the exclusive representa-
tive of our employees in the appropriate unit set
forth below concerning the effect of the decision
to close the Donn Products, Inc., plant at Berea,
Ohio, and the effects of the discontinuance of the
plant on such employees. The appropriate unit is:
All production and maintenance employees,
including shipping and receiving employees,
plant janitor, the paint technician, the chief
inspector, assistant foremen, leadmen and
probationary or production trainee employ-
ees of the Respondent at its two facilities in
the Cleveland area, namely, Donn Products,
Inc. and American Metals Corporation,
1000 Crocker Road, Westlake, Ohio, exclud-
ing office clerical employees, technical em-
ployees, engineers and draftsmen, produc-
tion clerk, foremen, and all professional
employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT unilaterally, without prior notice
to or consultation with the Union, institute a
binding arbitration agreement.
WE WILL NOT unilaterally, without prior notice
to or consultation with the Union, establish a
system of materially assisting employees to obtain
bank loans.
WE WILL NOT refuse to bargain collectively with
United Furniture Workers Local 450, United
Furniture Workers of America, AFL-CIO, as the
exclusive bargaining representative of the em-
ployees in the unit described above.
WE WILL NOT grant our employees a binding
arbitration agreement in order to dissuade them
from prounion activities.
WE WILL NOT establish an unprecedented
system of materially assisting our employees to
obtain personal bank loans to curb their union
activities.
WE WILL NOT threaten to move our plant to
other locations to discourage union activities.
WE WILL NOT interrogate our employees about
their union activities or about the union activities
of other employees.
WE WILL NOT threaten to discharge employees
or to prosecute them because of their union
activities.
WE WILL NOT tell our employees that they will
be disciplined more harshly in the future because
of their union activities.
WE WILL NOT promise an improved bonus
system to induce our employees to abandon the
Union.
WE WILL NOT threaten to bargain in bad faith.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to join
or assist United Furniture Workers Local 450,
United Furniture Workers of America, AFL-
CIO, or any other labor organization, or to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection or to refrain from any and all
such activities.
WE WILL, upon request, recognize and bargain
with the United Furniture Workers Local 450,
United Furniture Workers of America, AFL-
CIO, as the exclusive representative of the
employees in the appropriate unit with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understand-
ing is reached, embody it in a written signed
agreement.
WE WILL, upon request, bargain collectively in
good faith with United Furniture Workers Local
450, United Furniture Workers of America,
AFL-CIO, as the exclusive representative of our
employees in the appropriate unit concerning the
decision to close the Donn Products, Inc., plant in
Berea, Ohio, and the effects of the decision on
119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit employees, and, if an understanding is
reached, embody it in a written signed agreement.
WE WILL rescind the arbitration provisions
which were formally incorporated into our em-
ployee manual distributed in August 1975.
DONN PRODUCTS, INC. &
AMERICAN METALS
CORPORATION
DECISION
STATEMENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hearing
in this consolidated proceeding was held at Cleveland,
Ohio, on July 12 and 13, and on August 16 and 17, 1976.
The complaint in Case 8-CA-9464 issued on May 4, 1976,
against Donn Products, Inc. & American Metals Corpora-
tion, here together called the Respondent, on a charge filed
on September 18, 1976, by United Furniture Workers
Local 450, United Furniture Workers of America, AFL-
CIO, here called the Union. In Case 8 RC-9998, a Board
conducted election was held on September 10, 1975; the
Union filed objections to conduct allegedly affecting the
results of the election. The Regional Director directed a
hearing on the objections, and the two cases were then
consolidated for single hearing. The issues presented are:
(I) whether the Company interfered with the election,
which the Union lost, so that the results must be set aside
and a new election held; (2) whether the Respondent
restrained and coerced the employees in violation of
Section 8(a)(1) of the Act; and (3) whether such unfair
labor practices were so aggravated and pervasive that the
Respondent must be ordered now to bargain with the
Union without any other election being held. Briefs were
filed only by the Charging Party and the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Donn Products, Inc., and its wholly owned subsidiary
called American Metals Corporation, are engaged in the
processing and production of ceiling and partition systems,
with their principal place of business in Westlake, Ohio.
Annually the two companies, together here constituting the
Respondent, shipped products valued in excess of $50,000
directly to points outside the State of Ohio. I find that the
Respondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Furniture Workers Local 450, United
Furniture Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Picture of the Case
The Union started an organizational drive among the
Respondent's employees about March 1975, and in August
it filed a petition with the Board requesting an election.
The Respondent consented to an election and it was held
on September 10, the Union losing by a vote of 148 to 115.
The Union then filed formal objections to the election and
a charge accusing the Company of unfair labor practices,
including unlawful refusal to bargain on request. The
activities of the Respondent's agents said to have consti-
tuted both interferences warranting setting the election
aside and violations of the statute are virtually the same.
For this reason, and because he felt there was merit in the
unfair labor practice charge, the Regional Director ordered
a hearing on the objections and issued a complaint, and
then consolidated the two proceedings.
From the start of the Union's campaign and continuing
to the day of the election, there was a barrage of
propaganda, both written and oral, poured upon the
employees by both the Union and the Company. Leaflets
of all sorts were distributed by union agents and an
employee organizing committee on the one hand, and by
management representatives on the other. The Union held
many employee meetings and the Company did the same.
And of course, as always, the Union kept telling the
employees why they should select the Union as their
bargaining agent, and the Company advanced one argu-
ment after another why they should vote against union
representation. No charge is made that the Union violated
the law in anything it told the employees in its campaign
activities; the case is solely against the Company. Did any
of the things it said to the employees - in writing or in
speeches - exceed the limits of that freedom of speech
spelled out in Section IO(c) of the statute? Did it promise
any improvements in conditions of employment, or
threaten to take away any existing benefits, in order to
improperly influence the employees' votes? If so, were such
promises and/or threats such as to violate Section 8(a)(1)
of the Act? If the Company's propaganda fell short of
illegal conduct, was it nevertheless such as to amount to
interference with the election?
The complaint also alleges that on July 9, 1975, the
Union demanded recognition as exclusive bargaining agent
in an appropriate unit, which is precisely spelled out in the
complaint. The answer admits the appropriateness of the
bargaining unit there described, and admits the fact of
refusal to bargain. The parties stipulated that there were, at
the critical time of such demand and refusal, 287 rank-and-
file employees in the unit. The General Counsel placed into
evidence 156 regular authorization cards, all signed by
employees within the unit before the day of refusal to
bargain. There is an attack by the Respondent upon the
validity of these cards. But assuming, for the moment, that
the cards are valid, at least enough of them to establish
majority status for the Union, the question is then
presented whether the violations of Section 8(a)(1) commit-
ted were sufficiently "flagrant," or outrageous as to justify
an affirmative bargaining order in remedy. See N.L.RB. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969).
120
DONN PRODUCTS, INC.
Violations of Section 8(a)(1)
There is testimony by employees about two major
meetings of employees held by the Company shortly before
the election, one on or about September 5 and another on
September 8, 2 days before the balloting. Principal
spokesmen for the Company were Donald Brown, presi-
dent, and Francis Martin, manufacturing manager. The
second meeting was a dinner party, of the kind the
Company holds annually, but this time the wives of the
employees were for the first time also invited. Brown and
Martin spoke at length, and the employee witnesses
repeated what they remembered hearing, very often of
necessity paraphrasing what they had heard. The General
Counsel placed into evidence about 10 leaflets - some
distributed by the Company throughout the plant and
some mailed to the homes of the employees individually.
The Charging Party then added to the record exhibits
about 17 more pieces of campaign literature given out by
the Company, again to each and every employee, almost
300 persons. The Union had to be given greater latitude in
offering its evidence because an employer may very well do
things before an election which may sustain objections to
the election but fall short of amounting to unfair labor
practices.
The end result of all of this is that the record as a whole is
a massive conglomeration of repetitive vituperation by the
Company, maligning criticism of the Union, its agents, its
representatives, and its methods. Many of the Company's
attacks upon the Union, and assertions of why it would be
against the interests of the employees to join, are belabored
again and again without limit. In a sense, there is an
implied suggestion in this case that careful analysis of each
and every phrase uttered, or written by management, will
reveal prohibited coercion and restraint - a sort of
argument that if one will look carefully maybe unfair labor
practices can be found. I do not think the scheme of the
statute calls for such a search by the Hearing Officer to
unearth proof of misconduct by such a technique. I think,
rather, given the massive quantity of the evidence as a
whole, that a proper procedure would be to consider those
complaint allegations which specify with some precision
what it is about the Respondent's activities that is now to
be faulted. I can only consider the contentions actually
advanced and evaluate them in the light of the proof.
1. To start with, can it be said that when an employer
bombards employees with too many leaflets, too many
letters, criticizing the union, and urging the employees
against collective bargaining, the fact of such massive
campaign of itself removes its activities from the realm of
permissible expression of opinion and places them in the
prohibited category instead? Maybe so, but, as will appear
below, that question need not be answered in this case.
2. A number of times throughout its literature, the
Company referred to the unioneers as "defectors," "disloy-
al," "con-men," "con-artists," and even "sons of bitches."
The unioneers were called "rabblerousers." More than
once the Union is called a "parasite union." The argument
is made, more by the Union than by the General Counsel,
that the mere use of such offensive and divisive words is a
form of coercion, and therefore an unfair labor practice.
But the question is not whether one or the other of the
contestants in a Board election behaves nicely, politely, or
as though it were all a "tea party," to use an ancient phrase.
One need not act restrained in voicing a contrary opinion
in the area of industrial relations; indeed, one seldom does.
Moreover, it has long been held by now that the American
worker is sufficiently sophisticated to pay little attention to
inflammatory words. He does not hesitate to use them
himself on the picket line.
3. In a June 17 letter to all employees, President Brown
wrote that whatever the Union was offering them they
could as well receive directly from the Company. Adding
that the Union might offer to obtain arbitration for the
employees, he then said he had investigated the possibility
himself, through the American Arbitration Association,
that he had finalized arrangements with that group, and
that thenceforth whenever "a dispute arises which can not
be settled with the Company" it would be disposed of
through arbitration. The Respondent then formally incor-
porated the new arrangement with the employees in a
revised employee manual distributed in August, the month
preceding the election. By thus surrendering a part of its
unilateral authority over the employees' conditions of
employment, the Respondent gave them a direct benefit
they had not previously enjoyed. That Brown, the presi-
dent, did this for the express purpose of curbing the
employees' prounion resolve is conceded. I find that by
granting this binding arbitration arrangement to the
employees, the Respondent violated Section 8(a)(1) of the
Act. Cf. N.LR.B. v. Exchange Parts Company, 375 U.S. 405
(1964).
4. Another widely distributed company circular, also
passed out in August, announced that in order to provide
"a little extra cash" for the employees, the Company had
"arranged for a preferred loan plan with National City
Bank." The brochure then advised "if you need the money
now, just call our personnel dept. and Mrs. Fouts will
arrange for your loan."
A number of employees did obtain loans. At the hearing
Martin, the manufacturing manager, said that the invita-
tion for employees to go to the personnel department
meant only that Mrs. Fouts would then tell the employees
the name of the bank officer to ask for when he went to the
bank to apply for the loan. Martin also added the
Company had arranged with the bank for the borrower to
repay the loan by payroll deductions, courtesy of the
Respondent, which in fact the Company has been doing.
There is no other evidence in the record on this subject.
If Martin told the truth, the announcement of a "preferred
loan," and that "Mrs. Fouts would arrange for your loan,"
was a fraud upon the employees. More likely what it all
meant was that the Company gave assurance to the bank
that there would be payroll deductions - in all probability
arranged in advance with the borrower's signature, a form
of assistance to the employee in obtaining money when he
needed it. It was a clear benefit conferred, again clearly to
buy the goodwill of the employees against their prounion
resolve. I find that by such announcement and the
arrangement, the Respondent violated Section 8(a)(1) of
the Act.
5. A precise allegation in the complaint is that at the
September 8 dinner meeting, where President Martin spoke
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at length on why the Union should be rejected 2 days later,
he announced that the employees "could form a committee
for the purpose of solving problems as to food vending
machines in the plant." The only evidence on this point is
agreement by Brown, at the hearing, with the following
leading question put to him by the General Counsel: "Q.
You said something to the effect, 'One of the things we can
do is form a small committee of you fellows at the shop,
because it is your money and your food, and I really don't
care.' " "A. Exactly." On whether any such committee ever
came about the record is silent. If this suggestion by Brown
was tantamount to an unfair labor practice, it was a weak
one indeed.
6. In late August the Respondent distributed to all the
employees a 14-page printed document replete with
extended statements detailing the nature of collective
bargaining, the duties and prerogatives of the Employer
when dealing with a union, the Company's past methods of
treating the employees, its plans for the future, and, in
general, explaining, once again, why the employees would
be better off without the Union. Among the messages thus
conveyed there was one saying clearly that in place of the
present system of "plant wide" bonuses, the Company was
preparing, and hoped to put in effect "in the near future," a
production bonus, or an operator's bonus, which would be
more advantageous to the employees. At the hearing
Manager Martin explained away this critically timed
statement to the employees so shortly before the election as
no more than reference to a longstanding idea of the
Respondent, and added, without contradiction, that up to
the day of the hearing nothing had been done about the
proposal, no new system of any kind had been devised or
put in effect.
I agree with the complaint allegation that by thus
promising the employees an added benefit in their
employment - regardless of whether it was ever granted
- in the middle of its antiunion campaign - privileged as
it may have been, the Respondent violated Section 8(a)(I)
still again. A comparable promise, also a violation of the
statute, was voiced by President Brown on September 8,
about dental insurance to the employees, when, among
much more, he said "the dental program is something we
should be looking at as time goes by, because it is going to
get to the point where it is within the realm of possibility."
7. Another act of the Respondent, called illegal in the
complaint, is that in December 1975 it closed its Berea
plant and moved the employees from there to its other two
locations. Prior to that day the Company operated in three
locations - Berea, Westlake, and Medina, and the
employees of all three were included in the organizational
campaign and together, as all parties agreed, constituted
the appropriate unit. The complaint says the Respondent
violated the Act when it closed the Berea location because
it did so unilaterally, without first bargaining with the
Union about the move. This means that before it can be
found that the Act was violated in this respect, it must be
found that the Company was obligated to bargain in
December notwithstanding the results of the election -
adverse to the Union. There is no allegation the move
constituted restraint and coercion per se. On this point
Gerald Wasik, an employee, testified that during a speech
to the Berea location employees before the election
President Brown said "he could take the company and
move it anywhere he pleases at any time," "he could just
take off and move the company anywhere he chooses at
any time." Brown did not contradict this testimony. But
Martin, the manager of manufacturing, who was also
present at the September 5 meeting, quoted Brown as
saying there was a possibility the Berea plant might have to
be closed and its operations moved to Medina for
economic reasons, as there were insufficient orders for
work there and the place was too expensive to continue.
And when the Berea plant was closed, in December, all its
employees - about 36 - were offered transfer to the other
locations and all accepted. No one was hurt economically
by the move.
Economically justified as the move may have been, and
there is no basis for questioning that explanation by
Martin, there was no reason for the president to have
talked about the possibility in terms that would of necessity
tend to intimidate the employees just 5 days before the
balloting. I credit Wasik's version of Brown's words, and I
find that the president chose to speak of the projected
move in such a way as to give the employees to understand
that the Company would exercise its managerial preroga-
tive to their disadvantage. The talk Brown was giving that
day was essentially for the purpose of persuading the
employees to vote against the Union. It was not the right
moment to promise plant closure on any basis. I find
Brown violated Section 8(a)(1) of the Act by what was in
effect a threat of reprisal.
8. Dale Steyer, a member of the employee organizing
committee, testified that one day early in the campaign
Martin called him into the office to ask was it true he had
passed out union literature "specifically part of the Hartley
Act." When he answered yes, Martin asked did he know "it
is against the law." Martin closed with saying "as long as
you admit it [passing out union literature], I want to make
it perfectly clear to you that if you are to ever do it again
that you can be fired." Steyer's final statement as a witness
was that he knew, when Martin thus talked to him, the
supervisor was talking about distribution of union litera-
ture on company time.
Wasik also recalled a talk with Martin in May or June
about union activities: "[Hie told me that he did not care
about any union affiliation, but if he caught me doing
anything outside the law, he would prosecute me to the
fullest extent of the law." The witness' earlier affidavit
states Martin's admonition to him somewhat differently:
"[H]e told me that he didn't care what my views were
regarding a union and what activity I engaged in regarding
the union as long as it was legal, but that if I engaged in
any illegal activity, he would prosecute me to the full extent
of the law."
I find that by interrogating Steyer about his union
activity and by threatening to discharge Steyer and to
prosecute Wasik for distributing union literature in the
plant, Martin violated Section 8(aX)() of the Act. There was
no rule in effect at the time regulating union solicitation or
distribution on the company premises, and, as Steyer
testified, without contradiction, there had never been any
such rule during prior organizational campaigns. When an
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DONN PRODUCTS, INC.
employer voices direct threats of discharge for union
activity in the plant, vague and oblique references to "the
law," or to "Taft-Hartley," will not serve to remove the
outright intimation from the area of prohibited restraint
and coercion. If an employer wishes to reserve working
time for work, as is its right, it must do so clearly, without
equivocation or ambiguity. Hyland Machine Company, 210
NLRB 1063 (1974). Here, not only was there no under-
standable rule announced in advance of the union
activities, but the manager took no pains to assure the
employees of their protected rights.
9. Twice in August, when Steyer was in the office of
Allen, the production manager superintendent, Allen
started talking of the Union with the employee. According
to Steyer, the first time "He asked me, 'I understand there
wasn't too many people showed up at the meeting. How
was the turnout last night?' " Steyer answered, "I would
like to terminate that part of the conversation." Allen
continued nevertheless as follows: "Not too many guys
showed up .... Was it the same old crowd?" A week later
"he made reference to the union again, and that I was
becoming pretty heavily involved in the union campaign. I
said, 'Well, by now, that's pretty common knowledge. I am
on the Organizing Committee.' He said, 'Well, you know,
people in the front office are making remarks . . . people
around here have long memories, and if you people should
happen to lose, then . . . in a year, they have long
memories . . . everybody breaks rules now and then, and
for the most part, if they are not serious violations, they will
let it go .... Perhaps in your case they may not let it fly
by.'
Allen's story is that it was Steyer who always started
talking union because he was worried about how "secure"
his position was, about possible "reprisals" by the Compa-
ny against a member of the employee organizing commit-
tee. At one point the superintendent said it was always
Steyer who brought up the subject of the Union in their
talks. But he also said the employee came in "repeatedly
after anytime we would have one of our handouts, a
meeting in which his name was named, he would come in
...." It then became clear that what the witness was
saying was that Steyer has been discussed by management
in its meetings always just before the Union was discussed
between the two in private conversation.
Q. You did mention something that Dale [Steyer]
would come in whenever his name would come up in a
meeting?
A. That's true.
Q. That his name was used in meetings by the
Company then?
A. Not so much his name as the group of
organizers in the plant.
Q. Their names came up quite a bit?
A. It was a general kind of thing, perhaps not
specifically named but addressed to the organizing
committee in the plant.
If the superintendent talked of the Union with Steyer
after the employee's name had been discussed in the inner
councils of management, it follows it had to be Allen who
started the talk. How else could Steyer know that he had
been the subject of comment by his supervisors in
conference? With this, plus Allen's general demeanor at the
hearing, I credit Steyer and I find that Allen interrogated
him about the union activities of other employees and
threatened him with possible sterner discipline in the future
if he persisted in his activities with the organizing
committee. By such conduct of Allen, the Respondent
again violated Section 8(aX)() of the Act.
10. A final complaint allegation is a blunderbuss
assertion that by the totality of its conduct - including the
extended speeches to assembled employees and unending
writings handed to each of them - the Respondent made
them understand that if ever it were faced with the legal
duty to bargain with the Union it would simply refuse to do
so in good faith, that it would arbitrarily frustrate the entire
collective-bargaining process - Section 8(aX5) or no
Section 8 (aX5). On this score the evidence is nebulous,
vague, indirect, and the oral testimony of employees more
argument than clear statement of fact. Again and again
they spoke of what management agents said "in effect,"
gave their understanding of what they were being told in
words without end, and simply responded to conclusionary
leading questions. On the very lengthy testimony and
voluminous documents here received, this question is
comparable to the frequent issue of whether an employer
bargains hard or in bad faith.
Brown did say "you can lead a horse to water, but you
couldn't make him drink," "you could force the horse to
drink, but at times you almost drown the horse before he
will take a drink of water." He also spoke of what happens
when unions strike, and how the Respondent would
prepare to defend economically against such pressure,
dramatically explaining how employees suffer in such
cases. A critical phrase, quoted by the employees a number
of times, was that the bargaining would start "from
scratch." At the start the witnesses made every effort to
convey the thought that what the president was saying was
that his first position in possible negotiations would be that
the employees work for nothing, receive no benefits at all
for their work, but would only get anything if the horse
were forced to drink. It then became clear that the
managers told the employees both in writing and orally
that whatever wages or other benefits they were then
enjoying would in no event be lost, and only that raises or
other new benefits would have to be extracted with
difficulty from the Employer. This one aspect of the
general charge of "bad faith promised" illustrates much of
the testimony.
After carefully considering all the record, I do not think
a factual finding is warranted that the Respondent did
announce in advance that if the Union were certified it
would violate the Act by not bargaining in good faith. In
fact, the witnesses even admitted that at times Brown said
exactly those words: that he would bargain "in good faith."
Refusal to Bargain: Affirmative Bargaining Order
In the light of the unlawful restraint and coercion type of
unfair labor practices committed by management before
the election, it is clear there is merit to the Union's
exceptions and that the results of the election must be set
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aside. If the Union desires, a new election must be held
when the Regional Director deems proper.
But the real substantive question in this case is whether
the unfair labor practices committed were of such a
character that it must be held they now "preclude the
holding of a fair election." Restated, the question becomes
whether it can reasonably be expected that the Board's
usual remedial order - posting of notices and a cease-and-
desist order directed to the Respondent - will serve to
dissipate the intimidating and coercive effect of the past
improper conduct by management representatives. It is an
area of Board law where no single prior decision of the
Board can be determinative precedent for a following one
because no two situations are ever truly parallel. No one
was actually hurt or prejudiced in his employment despite
the unending talk carried on by the Respondent. There was
no violation of Section 8(a)(3) of the Act; indeed, none is
alleged. The move of the Berea employees to Medina was
not illegally motivated; it was caused by economic
necessity, and concession on this point by the General
Counsel logically means the employees were equally aware
of such objective reality. And what benefits were promised
were more illusory than real. Brown spoke of one day
establishing a better production bonus system, but nothing
was ever done about that. The right to arbitration over
employee complaints is a thing of value, and interrogation
is a form of coercion. But if, as the Supreme Court said in
Gissel, supra, unfair labor practices are to be classed in
minor and major categories, surely the ones committed
here must fall into the lesser class, those which may not be
called "flagrant" or "egregious." After careful consider-
ation of all the factors relevant here to this basic issue, I
conclude that an affirmative order to bargain in remedy is
not warranted.
Were it necessary to decide, I would find that the Union
in fact had been authorized to bargain on their behalf by a
majority of the employees in the appropriate bargaining
unit on July 9, 1975, when, as the complaint alleges and the
Respondent admits, there occurred the demand and
refusal. The parties stipulated that there were that day 287
employees at work; an exhibit listing the names was placed
in evidence. To this number must be added Michael Kalus,
because the parties also agreed his "termination date" was
July 9.
There were received into evidence 156 regular authoriza-
tion cards, all dated on or before July 9, 1975, all alike, and
all in unambiguous language authorizing the Union to
bargain forthwith on behalf of the individual employees
who signed them. The cards all read as follows:
United Furniture Workers of America Local 450,
AFL-CIO
I hereby request and accept membership in the
above-named Union, and of my own free will authorize
it, its agents or representatives to act for me as
collective bargaining agency in all matters pertaining to
pay rates, wages, hours of employment and other
conditions of employment.
Of these cards, 50 were authenticated at the hearing in
person by the employees who signed them. The signatures
to 29 additional cards were authenticated by the oral
testimony of witnesses who said they saw the employees
sign the cards. And 77 cards were authenticated by
witnesses who testified in each instance that the cards were
handed to them by the signing employees within moments
after they had signed, in intimate gatherings where the
cards were passed out in solicitation and where immediate
signing took place.
The Respondent attacks the validity of these cards on
two asserted grounds. The first is that employees did not
intend what the plain printed language says, i.e., that the
Union be their bargaining representative, but only that an
election might be held. The test now, of course, is not what
employees may later say their intent once was, but rather
what they were told at the time of signing the cards. Absent
clear and probative proof that union representatives, or
other solicitors to signatures, expressly told the employees
at the time that the sole reason for signing was to obtain an
election, it is the wording of the cards - the plain English
there written and which everyone of the employees
involved read before signing - that must govern.
Several union meetings were held in March, when about
half of the cards were signed, and a number of meetings
took place later. Donald Rieger, International representa-
tive of the Union, was present at all the meetings. Robert
Sebera, business representative, was present at six or eight
meetings. I do not believe there is adequate evidence to
impair any of the cards on the ground the employees were
told the purpose was solely for an election. Both Rieger
and Sebera testified clearly and convincingly that a
number of times the employees were told the cards were to
be used to make immediate demand for recognition, and
that only in the event recognition were not achieved would
the Union move towards an election. Each of the union
agents denied they ever told the employees the purpose of
the cards was only to bring about an election.
Several employees who authenticated their cards also
spoke on this subject, but their testimony cannot offset the
writing on the cards they read before signing. They did
recall there was talk of an election, and yet, from Larry
Doehr: "All it was an indication that you are interested in
obtaining this particular union as a bargaining agent." Neil
Barrett said he heard an organizer say that "if you sign that
then they need, I think, 50 percent or something that they
were telling me and that would be enough to vote for a
union, to have the vote for a union." Another employee,
Donald Ulrich, quoted an organizer as saying "that if a
certain percentage of the cards were turned in, there would
be an election," and that "they would like a certain
percentage of the cards in before they would even try for
an election." Randolf Rusnak started by saying no one
from the Union told him why they wanted the cards signed,
and then added: "They just wanted to take like a poll to see
how many people would be interested."
The second contention adverse to the validity of the
cards is that the Union illegally bribed the employees by
promising them freedom from initiation fees or dues on
condition that they sign before the election, or before the
Union won recognition. On this score, too, the testimony of
the two most active union agents who ran the organization-
al campaign could not be clearer. Rieger testified he told
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DONN PRODUCTS, INC.
the employees: "Dues were $8 a month. Employees were
told that. They were also told there was no initiation fee for
any present employees." He denied telling any employees
"if they signed a union card they would not have to pay
union dues ... initiation fees." "We said that dues would
be first collected after a contract was signed, and we said
there would be no initiation for any present Donn
employees, and we also stated that in the leaflet as well."
From the testimony of another employee, Terrence Keane:
"Somebody told me the rule, and I can't tell you who told
me, but somebody told me that anybody who was working,
that is working at the company when the Union gets in,
doesn't have to pay. It is whoever comes in afterwards."
And the other union agent, Sebera, said: "We told the
people present that definitely in all cases that there will be
no Union dues or no initiation charge up until the time that
the contract is consummated with the Company."
The union meetings started in March, and the campaign
continued for several months thereafter. On April I the
Company distributed to each of the almost 300 employees
a printed document entitled "Opinion Poll," with the
following statement:
I understand there is a rumor being circulated through
the plant concerning the payment of the union
initiation fees. A loyal employee informed me that you
have been told if you did not sign a union card now
that in the event the union wins an election you would
be required to pay an initiation fee and those who did
sign the card would not have to pay any fee.
This paper then asked each employee to check whether
this statement by the Employer was or was not his
"understanding." In reference to that question 10 employ-
ees checked the affirmative box. How many of the other
277 employees said "No," the record, of course, does not
show.
These 10 answers are of no significant weight against the
validity of the cards, including those signed by the special
10 employees. Rumor, absent factual evidence, will not
suffice to support what is essentially an affirmative defense.
One must also ask: "What is a rumor? Who starts a
rumor?" When an employer floods the plant with a flat
statement that there is a rumor, who is it that has started
the rumor?' It was an obvious device to create, and
implant into the minds of the employees, what is now
called a Savair defense. See N. L R.B. v. Savair Manufactur-
ing Co., 414 U.S. 270 (1973).
The Respondent called some witnesses who, in part of
their testimony, said they heard the union agents tell the
employees, in the one or two meetings they attended, that
dues and fees would be waived only if they signed now. I
do not credit these witnesses against the clear testimony of
Rieger and Sebera.
Givens, chief inspector of quality control, said he heard
Rieger say "if anybody would get a Union card and mail it
in at this time, that they would be exempt from paying any
initiation dues." The witness added this was the only
meeting he attended, and that he did not stay throughout.
I "The nature and ingenuity of man is unchanged as of old." Cf. Virgil.
Aeneid, Bk. IV. 1. 160-161; Rossini, The Barber of Seville, act 3,
"LaCalunnia."
Keifer, assistant foreman, testified: "He said that if union
cards were signed now, that there wouldn't be any
initiation fee if you signed a card now." This witness said
he heard no talk in the shop to this effect. He could not
recall what date or what month he went to the meeting,
what questions he asked or what questions the other
employees asked.
Mehlman, an inspector, said: "[A]t one of the meetings it
was stated that if we had a card signed and in by the time
the election came up, we would not be liable for initiation
dues." The witness then added Sebera, at a meeting,
"confirmed it." And then, on cross-examination, came the
following:
Q. Do you recall at any of these meetings, either
Mr. Rieger or Mr. Sebera stating that there would be no
dues or initiation fees until a contract was signed
between the Company and the Union?
A. Yes, I heard that also.
Kaniecki, then quality control assistant foreman and now
quality control foreman, started by saying that at a meeting
he heard Rieger and Sebera say, "that any of the guys that
signed a petition card during a campaign would be exempt
from paying initiation fees." Like Mehlman before him,
Kaniecki then reversed himself:
Q. Did you hear Mr. Rieger or Mr. Sebera make a
statement that no employee would have to pay a Union
initiation fee until after a contract had been signed with
Donn Products?
A. Yes.
Lee Townsend, an ordinary employee, was also called by
the Respondent. Asked in his opening statement what the
employees were told in the meeting about payment of
initiation fees, he answered: "That they would be after
negotiations were taken care of." With some prodding by
company counsel the witness then said that those who
signed cards would not have to pay. His later answer
followed a series of leading questions. Finally, Townsend
said he arrived late at the meeting, and did not recall with
exactness what was said.
With talk, as was to be expected, about the plant, of
rumors of one kind or another, the Union promptly
distributed another leaflet, clearly reassuring the employees
of its earlier message that there would be no dues or
initiation costs on anybody until after the Union had
become established. Where the testimony of the Compa-
ny's five witnesses as shown above conflicts with that of the
union agents, I credit Rieger and Sebera.
On the total record, I find that the Union in fact
represented a majority of the 287 employees in the
bargaining unit on July 9, 1975, when the Respondent
refused to extend exclusive recognition on request.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set out in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
i. By granting its employees a binding arbitration
agreement in order to dissuade them from prounion
activities, by establishing an unprecedented system of
materially assisting employees to obtain personal bank
loans, by threatening to move its business to other
locations, by interrogating employees about their union
activities and about the union activities of other employees,
by threatening to discharge employees and to prosecute
them because of their union activities, by telling employees
they would be disciplined more harshly because of their
union activities, and by promising employees an improved
bonus system to induce them to abandon the Union, the
Respondent has engaged in and is engaging in violations of
Section 8(a)(l) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
126