DTR Industries

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 833 (N.L.R.B. 1993)

833
311 NLRB No. 82
DTR INDUSTRIES
1 The Respondent contends that Sec. 10(b) bars the Sec. 8(a)(1) al-
legations. We find no merit to this contention. Sec. 10(b) is not ju-
risdictional in nature. It is an affirmative defense and, if not timely
raised, is waived. McKesson Drug Co., 257 NLRB 468 fn. 1 (1981)
citing Penn Corp., 239 NLRB 45 (1978); Systems Council T-6, Elec-
trical Workers (New York Telephone), 236 NLRB 1209, 1217
(1978), enfd. 599 F.2d 5 (1st Cir. 1979). The Respondent first raised
the defense of Sec. 10(b) in its brief to the administrative law judge
and did not plead this affirmative defense in its answer or litigate
the issue at the hearing. Therefore, we find that the Respondent did
not raise the affirmative defense of Sec. 10(b) in a timely manner
and that this defense was waived. See NLRB v. Wizard Method, Inc.,
897 F.2d 1233 (2d Cir. 1990).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 Based on the credited testimony, we find no merit to the Re-
spondent’s exceptions to the judge’s 8(a)(1) findings concerning
threats by Supervisors Joe Brinkman, Greg Lewandowski, Alan
Haynes, Robert Falk, and Dot Jordan, including specified repetitive
statements that the Company would go out of business or employees
would lose their jobs if the employees persisted in their union activ-
ity.
We note, contrary to the judge, however, that employee James
McClain, not employee Donald Anderson, recalled Supervisor Jordan
saying about 3 weeks before the election, ‘‘that she hated to see the
union come in because they’d close the doors, and she didn’t want
to lose her job.’’ We also note that the testimony of employee John
Latimer confirms that Jordan made a similar threat. Thus, Latimer
testified that in early November, while McClain was present, Jordan
said she was seeking employment at two other places because if the
Union came in, DTR would close.
4 All dates are in 1989 unless otherwise indicated.
DTR Industries, Inc. and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW.
Cases 8–CA–22436 and 8–RC–14189
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 31, 1991, Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed exceptions, a supporting
brief and appendix binder, and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) by numerous threats of plant clo-
sure, job loss, and layoff if employees did not vote
against the Union.3 The General Counsel excepts to
the judge’s failure to find that the Respondent’s No-
vember 10, 19894 letter to employees also contained
threats to close the plant and lay off or discharge em-
ployees in violation of Section 8(a)(1). The record es-
tablishes that 1 week before the November 17 election,
the Respondent’s president, Yuji Kobayashi, issued a
four-page letter telling employees, inter alia, ‘‘your fu-
ture . . . is on the line,’’ ‘‘a union would hurt our
business,’’ ‘‘our business would automatically be re-
duced if the union wins the election,’’ ‘‘if a contract
is negotiated without a strike, employees are laid off
while the inventory is used,’’ and ‘‘bringing a union
would lose business for DTR.’’
We find it unnecessary to determine the lawfulness
of all of these statements. We find that the following
language from Point 3 of Kobayashi’s letter in which
he concludes that ‘‘Bringing a union would lose busi-
ness for DTR’’ had a reasonable tendency to coerce
employees when viewed against the background of the
Respondent’s other threats of layoff, job loss, and
plant closure:
Our business would automatically be reduced if
the union wins the election and our customers
took away 50 percent of our sole source business.
They could, of course, take it all away and sole
source with some non-union company. They do
not have to give any business to DTR.
Furthermore, most labor contracts are for three
year terms. The U.S. auto companies force their
unionized suppliers to build a 90-day inventory of
parts before any labor contract termination. If the
supplier fails to do so, it usually loses its order.
That means that unionized suppliers, such as our
associate Norbalt, are required to work overtime
before the end of every labor contract and then,
if the contract is negotiated without a strike, em-
ployees are laid off while the inventory is used.
Point 3 really comes down to this. Bringing a
union would lose business for DTR . . . .
Kobayashi’s statements directly focused responsi-
bility for the claimed economic consequences on
unionization without reference to objective facts show-
ing that its customers maintained a policy (lawful or
otherwise) against contracting with unionized compa-
nies or required an inventory stockpile prior to contract
expiration. In assessing Kobayashi’s remarks in their
entirety, and when viewed against the backdrop of the
Respondent’s other unlawful conduct, we conclude that
he unlawfully threatened his employees without an ob-
jective basis that if they unionized, the Respondent’s
sole source customers would necessarily find another
supplier and take away business necessitating layoffs.
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We reject the Respondent’s claim that its articulation of the
‘‘sole source scenario’’ was lawful and demonstrably probable under
NLRB v. Gissel Packing, supra, because Kobayashi focused solely on
what customers might do if DTR experienced labor problems and his
statement thus constituted legitimate predictions of economic con-
sequences outside of the Respondent’s control. In support of its ar-
gument, the Respondent relies, inter alia, on Jetsetter Express, Case
32–CA–10725, JD–(SF)–62–91, slip op. at 14 (May 31, 1991). The
Board adopted the administrative law judge’s decision in that case
in the absence of exceptions. It thus lacks any value as precedent.
Anniston Yarn Mills, 103 NLRB 1495 (1953). Moreover, unlike the
situation in Jetsetter, the Respondent failed to establish that its cus-
tomers had a policy of terminating the contracts of suppliers that un-
derwent unionization or that the Respondent’s customers actually in-
formed it that they would pull orders or terminate their contracts if
the Respondent was unionized.
6 More specifically, the complaint alleges that on various dates
from October 20 through November 17, the Respondent granted or
promised specific benefits and improvements in working conditions
and discharged its plant manager, George Fyler, as a direct or indi-
rect result of its solicitation of grievances through the employee sug-
gestion box.
We dismiss the complaint allegations concerning the October 31
discharge of Plant Manager George Fyler and the November 1 insti-
tution of a new, improved uniform policy because the record fails
to establish that these actions resulted from solicitation of employee
grievances through the suggestion box. We note that the General
Counsel pursued no alternative theory of violation.
7 We rely on the 800 hotline only to the extent that it confirms
the solicitation of grievances. Springfield Jewish Moving Home, 292
NLRB 1266, 1269, 1274 (1989).
NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969); Harrison Steel Castings Co., 293 NLRB 1158,
1159 (1989); Gupta Permold Corp., 289 NLRB 1234,
1251–1252 (1988).5
2. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) by promising improvements in
wages, benefits, and other terms and conditions of em-
ployment if the employees voted against the Union,
and by interrogating James McClain as to the identity
of union activists.
3. We also agree with the judge that the Respondent
unlawfully solicited, promised to remedy, and rem-
edied grievances, but only for the following reasons.
The complaint alleges that the Respondent solicited
grievances from employees by instituting employee
suggestion boxes on October 13, and by instituting a
toll-free hotline on November 10.6 The judge found a
violation based on the Respondent’s policy to deal di-
rectly with its employees in order to bypass any collec-
tive-bargaining agent they might choose. The Respond-
ent claims that it has no obligation to bargain with the
Union or avoid dealing directly with employees con-
cerning terms and conditions of employment. The Re-
spondent contends that the ‘‘communication box’’ and
toll-free number simply supplanted a past practice of
soliciting employee complaints through group leaders,
and were legitimately implemented to repair the break-
down in communication resulting from the union cam-
paign. The Respondent further contends that it made
routine business changes and improvements in sanita-
tion because of rapid growth that would have been
made regardless of the union campaign.
Contrary to the Respondent’s contentions, we find
that its institution of the communication boxes and
toll-free hotline through which it solicited, implicitly
promised to remedy, and remedied specifically ex-
pressed employee complaints and grievances, was de-
signed to discourage union activity among its employ-
ees and violated Section 8(a)(1) of the Act.7 Both
these programs were established after the advent of
union organizing and represented a new approach to
grievances. When an employer institutes a new prac-
tice of soliciting employee complaints during an orga-
nizational campaign, there is a compelling inference of
an implicit promise to correct inequities discovered
and to convince employees that the combined program
of inquiry and correction will make union representa-
tion unnecessary. Middletown Hospital Assn., 282
NLRB 542, 544 (1986); Reliance Electric Co., 194
NLRB 44, 46 (1971).
The Respondent’s installation of communication
boxes in employee locker rooms shortly after the
Union filed its September 25 representation petition al-
lowed employees to ask questions and complain about
wages, hours, and working conditions and to receive
written answers from management. Through this new
practice the Respondent provided answers to 42 em-
ployee questions; it promised and made restroom im-
provements concerning soap dispensers and toilet
seats; it implicitly promised and made improvements
in the time allowed for employee lunchbreaks; it in-
stalled mirrors and trashcans in locker rooms; it in-
stalled new bells for shift breaks and lunches; it prom-
ised to install, and installed on election day, a phone
for outside calls; and it implicitly promised and actu-
ally implemented a shorter probationary period after
the election.
These changes in the Respondent’s approach to
grievances, combined with the speedy remedy of sev-
eral complaints solicited from employees, conveyed the
message that the Respondent, in its effort to defeat the
Union, was willing to look more favorably on any re-
quest they might make. Stride Rite Corp., 228 NLRB
224 (1977). Accordingly, we find that the Respondent
solicited and implicitly promised benefits in an attempt
to undermine the Union’s support in violation of Sec-
tion 8(a)(1). We further find that the Respondent’s ac-
tual grant of the promised benefits also violated Sec-
tion 8(a)(1). House of Raeford Farms, 308 NLRB 568,
569–571 (1992).
835DTR INDUSTRIES
8 According to the Respondent’s recommended timetable, the July
31 announcement and publication would follow completion of the
Respondent’s wage survey in late June, President Yuji Kobayashi’s
scheduled return from a visit to Japan in early July, and a month
of preparation and decision-making regarding the long-term wage
policy. The Respondent testified that implementation of its two-step
approach was delayed by President Kobayashi’s travel to Japan and
the death of Manufacturing Vice President Ishikawa’s father.
4. We agree with the judge that the Respondent un-
lawfully promised employees a wage increase before
the November 17 election and then unlawfully granted
a postelection wage increase to reward its employees
for voting against the Union. The following facts, not
mentioned by the judge and largely established during
presentation of the Respondent’s case, are helpful.
In March and April 1989, well before the onset of
the Union’s mid-September organizational efforts, the
Respondent reviewed a confidential, area wage survey
and certain in-house memoranda that articulated eco-
nomic and competitive reasons for increasing the Re-
spondent’s wage scale. In mid-May, the Respondent’s
officials decided to establish a competitive wage pol-
icy. The specifics of the policy, including the wage
scale progression and amounts, were left for further
study following completion of the Respondent’s own
area wage survey.
In early June, the Respondent received several com-
plaints from group leaders summarizing employee
complaints about working conditions, including the ab-
sence of a wage scale. Also about this time, an em-
ployee quit to work for a competitor at twice the Re-
spondent’s top wage rate. By June 21, the Respondent
compiled a confidential, hourly wage schedule delin-
eating a recommended timetable for effectuating what
the Respondent’s witnesses described as a two-step ap-
proach. The first step was a ‘‘short term’’ wage in-
crease designed to address the immediate concerns ex-
pressed by the group leaders. The second step, a
longer-term wage policy, was scheduled to be an-
nounced and published around July 31.8
Management next discussed wages in July, after the
Respondent’s own wage and benefit survey had been
completed. The Respondent’s officials discussed spe-
cific percentage figures proposed for the short-term in-
terim wage increase. No final decision was reached.
The long-term wage policy was not discussed.
The Respondent’s officials met again on August 10.
They decided that the short-term increase would be 5
percent, resulting in a 35 cent-per-hour increase for
employees with 18 months’ continuous service. Docu-
mentary evidence confirms that the wage scale pro-
gression covering general factory workers, maintenance
trainees, and group leaders was announced September
1 and implemented September 4. The Respondent testi-
fied that although it was ‘‘not able to discuss’’ the
long-term wage policy at this time and although no
specific written proposal existed, the Respondent in-
tended to announce the long-term policy by October.
On September 25, approximately 3 weeks after the
new wage scale progression was in place, the Union
filed its representation petition. The Respondent claims
that the petition was filed before it could finish its
work on the long-term wage policy, and that this work
was delayed after the petition for two reasons. First,
management had to spend time addressing the union
campaign. Second, counsel advised management not to
increase wages during the preelection period.
In mid-October, the parties stipulated under Board
auspices that group leaders were supervisors excluded
from the unit. Shortly thereafter, group leaders’ wages
were raised from $7.50/$7.85 per hour to $10 per hour.
Before the group leaders received this raise, they were
paid about 50 cents more per hour under the Respond-
ent’s prevailing wage scale than unit employees. By
memo to employees dated October 18, the Respondent
told them, inter alia:
You need to know we have started to address
your concerns. We have not moved as fast as we
should have. We are working on an employee
handbook. We have established a wage policy.
Please understand that the law forbids us from
making any changes in or promises regarding
your wages and benefits. We are able to give the
Group Leaders a raise because the union, the
Company and the National Labor Relations Board
have agreed that the Group Leaders are super-
visors. Supervisors by law cannot vote in the up-
coming election. Because of this, the law allowed
us to give the Group Leaders a wage adjustment.
We want very much to grow together from this
new beginning. We pledge to continue listening to
your concerns and to respond as completely and
as quickly as we can.
As noted, throughout October and early November,
the Respondent unlawfully solicited employees’ com-
plaints through the ‘‘communication box,’’ including
why group leaders suddenly received substantial wage
increases after the September wage scale progression
was set and after the Respondent knew that a union
election was scheduled. The Respondent’s responses
included the following:
After DTR issued the wage policy on September
1, it realized that its wages were not fully com-
petitive. You told us this, and we looked more
closely at wages in the area and in our industry
and realized that you were right. We intended to
make up for this mistake as quickly as possible.
Once the Union petition was filed, we could not
legally change our wage policy for any employee
who might vote in the election. As soon as we
knew that the group leaders could not vote, we
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 We note that employee Brian Baumgartner’s testimony that Su-
pervisor Lewandowski told him during an extended conversation a
couple of weeks before the election that if the Union was voted out
the Respondent would go ahead and make changes and improve-
ments, is consistent with John Latimer’s credited testimony that
Lewandowski told him that after the election the Respondent would
announce a favorable compensation package. Baumgartner’s testi-
mony also lends further support to Scott Evan’s credited testimony
that Human Resource Manager Haynes stated shortly before the
election that if employees voted ‘‘No,’’ the Company would an-
nounce the wage package.
10 This evidence is consistent with Clum’s credited testimony that
shortly before the election, when Clum asked Supervisor Haynes
about the truth of a rumor that wages would be increased to $9.50
per hour, Haynes informed Clum of management wage meetings in
which wages were going up and up.
11 Great Atlantic & Pacific Tea Co., 166 NLRB 27, 29 (1967)
(‘‘an employer, in deciding whether to grant benefits while a rep-
resentation proceeding is pending, should decide the question as he
would if a union were not in the picture’’).
brought their wages up to the level they should
have been raised to in September. It was our mis-
take to issue a wage policy in September that was
not as competitive as it should have been, and we
apologize to our associates for that mistake.
The Respondent also informed employees that:
DTR is prohibited by law from making any ad-
justments to associates’ wages until after the elec-
tion. The same law prohibits us from making any
promises to you as to any adjustments that might
be made after the election. This law does not af-
fect the Group Leaders, because the Group Lead-
ers are not part of the voting unit.
Despite these assertions, the credited testimony of
employees Martin Clum, Timothy Korte, Scott Evans,
and John Latimer establishes that the Respondent
promised improvements in wages and benefits in the
weeks preceding the election.9 Further, the week be-
fore the November 17 election, the Respondent’s top
management held a series of confidential meetings on
November 12, 13, and 14 to discuss the long-term
wage policy. In fact, on Sunday, November 12, the Re-
spondent discussed a specific proposal providing for
incremental 50-cent-per-hour increases after each 6
months of employment culminating in a $9.50 hourly
rate after 3 years of employment.10 No definitive deci-
sion was arrived at during this meeting.
On November 13, management discussed whether a
modified long-term wage proposal with a $10 ceiling
after 3 years of employment was competitive. No con-
clusion was reached. The Respondent’s labor consult-
ant was instructed to prepare a revised draft.
On November 14, the Respondent’s management
discussed its consultant’s modified draft proposal. This
proposal reduced the wage progression from 36 to 24
months, contained a top rate of $10.25 per hour, and
compared wage adjustments under both the Respond-
ent’s prevailing wage scale and its November 12 pro-
posal. No final decision was arrived at prior to the
election on Friday, November 17.
On Monday, November 20, the Respondent decided
to adopt its labor consultant’s November 14 proposal,
adjusted upward by 10 cents per hour to exceed wages
prevailing at all local competitors. This resulted in a
minimum hourly rate of $10.35 for employees with 2
years of service.
On November 20, President Kobayashi held shift
meetings to deliver a speech to employees. He told
employees that he knew they were anxious for him to
announce a new wage policy but that he could not do
so until the period for filing election objections ex-
pired. He promised more information on November 28.
On November 28, Kobayashi delivered a speech an-
nouncing a new wage policy. He told employees, inter
alia, that the Union’s election objections placed a
cloud over the Company; that his lawyers advised
against granting wage improvements until the objec-
tions were resolved; that he did not believe the objec-
tions should foreclose wage improvements that em-
ployees deserved ‘‘now,’’ nor prevent the Company
from paying competitive wage rates to retain and re-
cruit the best personnel. Accordingly, Kobayashi an-
nounced the new wage policy retroactive to November
19. It contained general, across-the-board increases to
be received in December 8 paychecks, and annual
cost-of-living adjustments effective each January.
Kobayashi promised an individual calculation of the
new wage scale progression. He also announced the
abolition of the 6-month probationary period and the
substitution of a new 90-day training period that would
result in Thanksgiving, Christmas, and New Year’s
holiday pay for employees with less than 6 months of
seniority.
Based on the foregoing evidence, including testi-
mony credited by the judge, we agree with the judge
that the Respondent unlawfully told employees before
the election that they would get a raise if they rejected
the Union. We also find, as alleged, that President
Kobayashi’s October 18 memo to employees implicitly
promised benefits, including improved wages and
working conditions, if the Union lost the election.
An employer’s legal duty during a pending represen-
tational campaign is to proceed with the granting of
benefits in the normal course of business as if the
union were not on the scene.11 The Respondent failed
to do so. It held out the ‘‘carrot or the stick,’’ prom-
ising wage increases, but withholding their actual grant
until it received the favorable election result it wanted.
The Respondent also answered unlawfully solicited
employee wage complaints by telling employees that
raises were warranted as a result of its wage survey,
but could not be given because the Union’s campaign
837DTR INDUSTRIES
12 NLRB v. Otis Hospital, 545 F.2d 250, 254, 255 (1st Cir. 1976);
Abbey’s Transportation Services, 837 F.2d 575 (2d Cir. 1988), enfg.
284 NLRB 698 (1987) (employer’s announcement that previously
scheduled wages had to be deferred until after the union election
violated the Act).
13 To the extent that the Respondent relies on advice received from
counsel, we find that its decision to withhold the increase until after
the election was not motivated by that advice or a genuine desire
to avoid election interference. Rather, we find that the advice fur-
nished the excuse rather than the reason for withholding the increase.
Arkansas Lighthouse for the Blind, 284 NLRB 1214, 1220 (1987).
We also note that counsel’s advice was disregarded when President
Kobayashi decided to grant the increase after the Union’s election
defeat while objections were pending.
14 The Respondent argues, inter alia, that this complaint allegation
should be dismissed because the rule was never enforced or dis-
cussed during the campaign. Mere maintenance of an unlawful rule,
however, violates the Act. We also note that the Respondent’s asser-
tion is refuted by its October 16 response. When employees asked
‘‘why can’t we put up any UAW literature in the cafeteria,’’ the
Company responded that, ‘‘like many other companies, we believe
our bulletin boards should be limited to communications from DTR
to our associates and community or charitable notices.’’
15 We reject the Respondent’s argument that only the Union may
file exceptions to the judge’s failure to rule on the consolidated elec-
tion objections because the General Counsel should remain neutral
in the nonadversarial, representation case context. The General
Counsel controls the litigation of this consolidated matter and is a
party that may file exceptions to the judge’s failure to rule on the
Union’s election objections pursuant to Sec. 102.46 of the Board’s
Rules and Regulations.
16 The Union alleged that the Respondent engaged in the following
objectionable conduct:
1. Conducted a campaign of fear and intimidation through constant
predictions of strikes, loss of customers and economic detriment,
which would inevitably result from a union victory.
2. Granting of benefits prior to the election.
3. Promise of benefits before and after the election to influence
the election outcome.
4. Confiscated union literature.
5. Interrogated employees as to their union sympathies.
6. Threat of plant closure and layoffs.
Continued
might make such increases appear to be bribes. It then
granted substantial wage increases to group leaders. To
the extent that the Respondent’s remarks during the
campaign created the impression that employees might
have received wage increases but for the Union’s pres-
ence on the scene, they constituted a violation of Sec-
tion 8(a)(1) by placing blame on the Union for its
withholding those increases.12
We emphasize that the Respondent failed to assure
employees that they would ultimately receive competi-
tive wage increases irrespective of the results of the
election. We also emphasize our findings that the Re-
spondent concurrently engaged in unfair labor practices
designed to discourage and undermine support for the
Union. Consequently, we reject the Respondent’s argu-
ments that its actions with respect to wages were de-
signed to avoid the appearance of attempting to dis-
courage support for the Union.13 Rather, the only rea-
sonable inference left for employees was that their own
desire to improve their lot through union representation
had deprived them of increases they might have other-
wise received. As the Supreme Court observed in
NLRB v. Exchange Parts Co., 395 U.S. 405, 409
(1964):
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the vel-
vet glove. Employees are not likely to miss the
inference that the source of benefits now con-
ferred is also the source from which future bene-
fits must flow and which may dry up if it is not
obliged.
We conclude from the entire record that the Re-
spondent manipulated the timing of its grant of wage
increases to influence its employees’ decision in the
upcoming election. Thus, after the Union lost the No-
vember 17 election by a 1-vote margin, 37 to 36, the
Respondent made good on its unlawful preelection
promises of wage increases. We find that its November
28 announcement implementing a substantial wage in-
crease averaging $1.85 per-hour for each employee ret-
roactive to commencement of the payroll period imme-
diately following the Union’s election defeat, in con-
junction with the granting of other financial benefits
also announced that day, was calculated to convey the
message that the Respondent would treat employees
better without the Union and to grant a quick reward
for voting against the Union.
5. We find merit in the General Counsel’s exception
to the judge’s failure to find that the Respondent main-
tained an unlawful no-solicitation/no-distribution rule
in its employee handbook. The Respondent issued to
new hires a document entitled, ‘‘Discipline and Rules
of Conduct.’’ This document contained the following
no-solicitation/no-distribution rule:
3.e. Unauthorized soliciting of funds or distrib-
uting literature on Company property. Unauthor-
ized posting or removal of notices, signs or writ-
ing in any form on bulletin boards or Company
property at any time.
We find the rule overly broad because it does
not distinguish between working time and breaktime
and does not state that employees can solicit on their
own time in nonwork areas of the plant. Accordingly,
we conclude that maintenance of the rule violated Sec-
tion 8(a)(1) as alleged. Ebon Research Systems, 290
NLRB 751 (1988); Baddour, Inc., 281 NLRB 546
(1986).14
6. The General Counsel excepts to the judge’s fail-
ure to make findings with respect to the Union’s elec-
tion objections that were consolidated for hearing with
the unfair labor practice case.15 We find merit to Ob-
jections 1, 2, 3, 5, and 6 to the extent that they are
coextensive with preelection unfair labor practices that
we have found.16 On this basis, we shall order that the
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. Indicated that it would be hopeless to gain any benefits if the
Union is voted in.
17 We have examined Todd Reynolds’ and James Crow’s testi-
mony below and we find that their testimony is not necessarily in-
consistent with Martin Clum’s testimony. In any event, we find that
the representations made to them were insufficient to invalidate their
cards. We do not rely on Amy Freytag’s or Vicki Oates’ cards,
among others.
18 Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd. 351
F.2d 917 (6th Cir. 1965), reaff. in Levi Strauss & Co., 172 NLRB
732 (1968), both approved in NLRB v. Gissel Packing Co., 395 U.S.
575, 606–608 (1968).
19 The parties stipulated that there were 78 employees in the bar-
gaining unit on September 22 as set forth on G.C. Exh. 72, a com-
puterized payroll record. The record reflects that employee Janine
Rader left the Respondent’s employ after working on Friday Sep-
tember 22 and did not report for work thereafter. We do not rely
on Rader’s card to establish a card majority among the remaining
77 employees.
November 17, 1989 election be set aside. We will not
direct that a second election be conducted, however,
for as explained below, we find that the possibility of
erasing the effects of the Respondent’s unfair labor
practices and of assuring a fair rerun election by use
of traditional remedies is slight, and that employee ma-
jority sentiment once expressed through cards would,
on balance, be better protected by a bargaining order.
7. We agree with the judge that the Union made no
demand on the Respondent for recognition or bar-
gaining. Therefore, the evidence fails to establish that
the Respondent violated Section 8(a)(5) by refusing to
bargain. Eagle Material Handling of New Jersey, 224
NLRB 1529 (1976) (the mere filing of a representation
petition does not constitute a request for recognition or
bargaining for 8(a)(5) purposes).
We find merit, however, in the General Counsel’s
exception to the judge’s conclusion that the Union had
not been validly designated by a majority of employees
in the bargaining unit on September 25. The judge
found that ‘‘no less than 27’’ of the 57 employee wit-
nesses called by the General Counsel to authenticate
signed authorization cards ‘‘testified that when signing
the cards, they were told the purpose was only to hold
an election.’’ The judge noted that many employees
specifically stated that they were told that immediate
recognition was not an objective of the Union; that a
number of them recalled being told that they would
have a right to decide later—at an election—whether
or not they wished to be represented by the Union; and
that practically all of them testified that the solicitor
said the cards would be held ‘‘confidential.’’ Based on
‘‘the entire record, considering especially a number of
very significant and very relevant factors,’’ the judge
credited ‘‘the large number of employee witnesses who
testified clearly they were told the cards they signed
were not intended to prove their immediate selection of
the union as their bargaining agent.’’
The judge relied on three bases to support his credi-
bility resolutions. First, the judge found employee
Martin Clum’s prehearing affidavit, which states that
Clum told certain employees ‘‘that they weren’t voting
for the union, they were just requesting the opportunity
to vote the Union in,’’ and the testimony of four of the
purported eight employees solicited by Clum (James
Crow, Todd Reynolds, Amy Freytag, and Vicki Oates),
directly contradicted Clum’s testimony that he told so-
licited employees the same thing that UAW Inter-
national Representative Hugh Smith did, i.e., that the
cards would be used to get recognition and, if that
failed, to get an election, and, further, that if they had
any questions, to read the card before they signed. Sec-
ond, the judge found that Smith’s testimonial admis-
sion, that he told employees at the group meetings that
the cards were confidential and that the Company
would not see the cards, belied his assertion that his
expressed purpose for obtaining the cards was to de-
mand recognition. Third, the judge noted that Smith
immediately filed an election petition and never de-
manded recognition from the Respondent. The judge’s
decision contains no discussion of the governing legal
standards by which the Board determines the validity
of authorization cards.
We find that the judge’s credibility resolutions pro-
vide an insufficient basis under governing precedent to
invalidate a majority of the authorization cards at
issue.17 We have carefully examined the testimony of
each of the 57 witnesses called by the General Counsel
and we find, contrary to the judge, that ‘‘no less than
27’’ of them did not testify that they were told that the
only purpose of these cards was to hold an election.
Applying the Board’s Cumberland Shoe doctrine,18 we
find that even considering UAW International Rep-
resentative Hugh Smith’s testimony, the testimony of
46 employees specifically examined below, considered
in conjunction with the unambiguous language on the
face of their authorization cards, establishes that the
Union represented a clear majority of the 77 unit em-
ployees as of September 25.19
In NLRB v. Gissel Packing Co., supra, the Supreme
Court approved Board precedent for determining the
validity or invalidity of authorization cards, as set forth
in Cumberland Shoe Corp., supra. The Court described
Board law in the following terms:
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i.e., states on its face that
the signer authorizes the Union to represent the
employee for collective bargaining purposes and
not to seek an election), it will be counted unless
it is proved that the employee was told that the
card was to be used solely for the purpose of ob-
taining an election.
395 U.S. at 584.
839DTR INDUSTRIES
20 395 U.S. at 608.
21 157 NLRB at 645, cited at 395 U.S. 584–585 fn. 5 and 608.
The 57 authorization cards at issue in this case are
not materially different from the unambiguous, single-
purpose authorization cards in Gissel, Cumberland
Shoe, and Levi Strauss. The top of each card states
‘‘AUTHORIZATION TO UAW.’’ Underneath this con-
spicuous authorization, the card contains smaller type
authorizing the UAW to represent the signatory in col-
lective bargaining.
The single purpose of the authorization could hardly
have been made clearer. Immediately after the space
for the employee’s name is the statement that the em-
ployee ‘‘does authorize UAW to represent me in col-
lective bargaining.’’ The signatory must sign the front
of the card at the bottom. The cards state in large type
on the back: ‘‘This card will be used to secure rec-
ognition and collective bargaining for the purpose of
negotiating, wages, hours and working conditions.’’ At
no point does the card refer to an election or make any
statement inconsistent with the stated single purpose of
designating the Union as collective-bargaining rep-
resentative. The Board has previously held, with court
approval, that such cards are unambiguous, single-pur-
pose authorization cards. Ona Corp. v. NLRB, 729
F.2d 713, 723–724 (11th Cir. 1984).
The Gissel Court fashioned the following rule for
unambiguous single-purpose authorization cards:
[E]mployees should be bound by the clear lan-
guage of what they signed unless that language is
deliberately and clearly canceled by a union ad-
herent with words calculated to direct the signer
to disregard and forget the language above his
signature.
395 U.S. at 606. Thus, where the card on its face
clearly declares a purpose to designate the union as
collective-bargaining representative, the only basis for
denying face value to the authorization card is affirma-
tive proof of misrepresentation or coercion. Levi
Strauss & Co., 172 NLRB 732, 733 (1968).
In Levi Strauss, the Board explained and reaffirmed
the Cumberland Shoe doctrine in the context of unam-
biguous, single-purpose authorization cards. The Board
stated:
Declarations to employees that authorization
cards are desired to gain an election do not under
ordinary circumstances constitute misrepresenta-
tions either of fact or of purpose. As in the instant
case, where the Union did use the evidence of
employee support reflected by the cards to get an
election, such declarations normally constitute no
more than truthful statements of a concurrent pur-
pose for which the cards are sought. That purpose,
moreover, is one that is entirely consistent with
the authorization purpose expressed in the cards,
as well as with the use of the cards to establish
majority support. A point sometimes overlooked
is that in basic purpose there is no essential dif-
ference between cards that are needed for a show-
ing of interest to gain an election and cards that
must be used to support a majority designation
showing in a Section 8(a)(5) complaint pro-
ceeding. . . .
Thus, the fact that employees are told in the
course of solicitation that an election is con-
templated, or that a purpose of the card is to
make an election possible, provides in our view
insufficient basis in itself for vitiating unambig-
uously worded authorization cards on the theory
of misrepresentation.
Applying the foregoing legal principles, we perceive
no valid reason for the judge’s refusal to accord the
usual probative value to unambiguous authorization
cards simply because Smith or Clum may have
stressed the election purpose of the cards or the fact
that the cards would be kept confidential. The Supreme
Court in Gissel has specifically considered and rejected
this reasoning.
In General Steel Products, 157 NLRB 636 (1966),
one of four cases consolidated in Gissel, the trial ex-
aminer, in language cited and approved by the Su-
preme Court as the ‘‘limits,’’ rejected the respondent’s
contention
that if a man is told that his card will be secret,
or will be shown only to the Labor Board for the
purpose of obtaining an election, that this is the
absolute equivalent of telling him that it will be
used only for purposes of obtaining an election.20
Thus, the trial examiner in General Steel rejected, with
Supreme Court approval, the respondent’s contentions
that cards should be invalidated because employees
were told one or more of the following: (1) that the
card would be used to get an election; (2) that an em-
ployee had the right to vote either way, even though
he signed the card; and (3) that the card would be kept
secret and not shown to anybody except to the Board
in order to get an election.21 These statements, singly
or jointly, do not foreclose use of the card for the pur-
pose designated on their face.
Thus, the proposed confidential use of the cards to
secure an election does not alter their essential char-
acter as union designations. Accordingly, we reject the
Respondent’s argument that Smith’s admission that the
cards would be confidential supports the judge’s con-
clusion that employees were told that the sole purpose
of the cards was to bring about an election.
We also reject the Respondent’s argument that the
Cumberland Shoe rationale is inapposite because the
testimony of a few employees demonstrates that they
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 In examining the testimony of these employees, we use R. Exh.
2 to supplement their testimony. This exhibit establishes that 38 em-
ployees attended one of two union meetings conducted by Smith and
held for the first or second shift on September 19.
23 Kathy Hiestand attended the first-shift meeting. She testified that
Smith ‘‘explained to us that they were attempting to get a majority
of the associates to sign cards so that we could present them to the
company for recognition. And if that didn’t happen, we would
present them for a vote.’’ She read and signed the card at the meet-
ing.
24 Timothy Korte attended the first-shift meeting. He testified that
Smith said that the cards were ‘‘dual purpose. One was to get recog-
nized, and the other was to file a petition for an election.’’ Korte
read and signed the card at the meeting.
25 Michele Selby attended the first-shift meeting. She testified that
Smith said the cards ‘‘would be for voluntary recognition or to file
for a petition for election.’’ She read and signed the card at the
meeting.
26 James McClain attended first-shift meeting. He testified that
Smith told employees that the cards were for two purposes. ‘‘One
of them was for—to get recognition of the union to represent us, and
the other one would be the right to vote if we got enough of them
signed.’’ McClain read and signed his card at the meeting.
27 John Latimer attended the first-shift meeting. He testified that
Smith told employees ‘‘if we got a majority of cards signed, we
would try to get the company to voluntarily recognize and bargain,
and if we couldn’t do that, we would use them to petition for an
election.’’ Latimer read and signed his card at the meeting.
28 Brian Baumgartner attended the first-shift meeting. He testified
that Smith told employees, ‘‘if we got a majority of people to sign
these, hopefully, we would get DTR to recognize the majority and,
therefore, they’d bargain with us. If not, we could use these to go
ahead and petition for an election.’’ Baumgartner read and signed his
card at the meeting.
29 Corey Simpson attended the first-shift meeting. He testified that
Smith said, ‘‘he was trying to get volunteer recognition about the
cards for everybody that wanted to sign could sign. It wasn’t that
he wanted to get an election there.’’ Simpson read and signed a card
at the meeting.
were confused about the meaning of terms of art used
on the cards (i.e., ‘‘to secure recognition and collective
bargaining,’’ and ‘‘authorize UAW to represent me in
collective bargaining’’), and did not understand that
they might be selecting the Union as a collective-bar-
gaining representative without an election. Like the
cards at issue in Gissel, Cumberland Shoe, and Levi
Strauss, the cards here unambiguously authorized the
Union to represent the signing employee for collective-
bargaining purposes and there was no reference to an
election. As the Board explained in Levi Strauss, ‘‘an
employee who signs such a card may perhaps not un-
derstand all the legal ramifications that may follow his
signing, but if he can read he is at least aware that by
his act of signing he is effectuating the authorization
the card declares.’’ 172 NLRB at 733.
Perhaps more importantly, where as here, the pur-
pose of the card is set forth on its face in unambiguous
language, the Board may not, in the absence of mis-
representations, inquire into the subjective motives or
understanding of the card signer to determine what the
signer intended to do by signing the card. Gissel held
that such evidence is not permissible. The Court spe-
cifically rejected ‘‘any rule that requires a probe of an
employee’s subjective motivations as involving an end-
less and unreliable inquiry’’ due to the tendency many
months after a card drive and in response to questions
by company counsel, to give testimony damaging to
the union, particularly where the company, as in the
instant case, has threatened employees in violation of
Section 8(a)(1). 395 U.S. at 608. Consequently, we re-
ject the Respondent’s argument that even assuming, for
merits sake, that Smith and union solicitors said that
the cards were ‘‘for an election,’’ and did not state that
the cards were ‘‘only for an election,’’ an assumption
that we find supported by a preponderance of the testi-
mony of the employees here, that the cards are invalid
because the employees were misled about the purpose
of the authorization cards.
Rather, we apply Gissel’s rule that employees are
bound by the clear language of what they sign unless
there is a deliberate effort to induce them to ignore the
card’s express language by telling them that the sole
and exclusive purpose of the card is to get an election.
We find, contrary to the judge, that regardless of
Smith’s or Clum’s testimony, the testimony of 46 of
77 unit employees examined below, establishes that
representations made by union solicitors to them were
insufficient to invalidate their cards. We also find that
the testimony of these employees, considered in con-
junction with the unambiguous language on the face of
their cards, authorizing the UAW to represent them for
the purpose of collective bargaining, establishes that
the Union represented a clear majority of the 77 unit
employees as of September 25.22
The following eight employees testified that they
were told that their cards would be used by the Union
to obtain recognition by the Respondent and, if rec-
ognition was not granted, then the cards would be used
for a vote: Kathy Hiestand,23 Tim Korte,24 Michele
Selby,25 James McClain,26 John Latimer,27 Brian
Baumgartner,28 and Corey Simpson.29 Accordingly, we
find their cards valid.
841DTR INDUSTRIES
30 Kathy McDougle read and signed a card at the first-shift meet-
ing. She testified that Smith said, ‘‘it was just to let the company
know that we was interested in the Union, and it would be confiden-
tial, that nobody would ever find out that we ever signed the cards.’’
We find that McDougle’s card is valid. She was not told that the
sole or only purpose for signing the card was to obtain an election.
31 James Lehman attended the second-shift meeting. On direct ex-
amination by the General Counsel, he testified that he read and
signed the card at the meeting. On cross-examination, he testified as
follows:
Q. Did Mr. Smith tell you the cards would be confidential?
A. Yes he did.
Q. Did he tell you the purpose of the card?
A. Yes, I knew.
Q. What did he say?
A. It was—they had to have 66% to call for an election. They
had to have that many green cards signed. I knew exactly what
it was for.
Q. Tell me what Mr. Smith told you about the card?
A. It was just to bring up a UAW vote in DTR.
Q. And that’s what Mr. Smith said?
A. I ain’t marking word for word what he said.
Q. My question to you sir, though, is your best recollection
as to what Mr. Smith said. Is that what you told me?
A. Yes, I suppose.
On redirect examination, after the Respondent objected to a question
it considered leading from the General Counsel, the judge asked the
following questions:
Q. Did this man Smith, who gave out these cards, you signed
one. Did he say what he was going to do with the cards?
A. Yes, he did.
Q. What did he say? Try to remember what he said.
A. Once they got over the majority of the people working at
DTR, then they would bring them forth to DTR.
Q. What?
A. They would bring the card forth to DTR showing that there
is—that the people at DTR as interest in the UAW.
We find Lehman’s card to be valid. He was not told that the sole
purpose for signing the card was to obtain an election.
32 Scott Evans attended the second-shift meeting. Evans testified
that Smith told us ‘‘that the cards, that we’d use them to obtain a
vote.’’ Evans read and signed a card at the meeting.
33 Sue Kinn read and signed her card dated September 20, after
being solicited by Baumgartner in the breakroom. She testified that
Baumgartner said, ‘‘read it and if I had any questions to ask him,
and that was about it.’’ She testified that she read the card, had no
questions, and gave it back to him.
34 Dean Koenig attended the second-shift meeting. He read and
signed his card dated September 19. His best recollection was that
he signed the card at the meeting. We find that his card is valid be-
cause he was not told that the sole purpose of the card was to have
an election.
35 Yeshai Erickson obtained her card in the breakroom. She be-
lieved that Clum gave her the card. She read and signed the card
either in the parking lot or in the breakroom after she clocked out.
She had no discussion with the person who gave her the card.
36 Janet Maxwell read and signed her card dated September 20,
after receiving the card from Clum in the breakroom. She testified
that he just asked her to sign it.
37 Steven Swallow read and signed his card dated September 19
after receiving it from Clum in the breakroom. He testified that he
did not really discuss with Clum the purpose of the card and that
Clum just said ‘‘sign it if you want to.’’
38 Kenneth Myers attended the first-shift meeting. He was pro-
moted to a group leader in October, before the election. He testified
that he read and signed his card dated September 19 at the meeting.
We find that Myers’ card is valid.
39 Brad Fisher attended the first-shift meeting. He became a group
leader in December. He testified that he filled out his card dated
September 19, but he can’t recall if he read it before he signed it.
We find that Fisher obviously read the authorization in order to
complete the card. He testified that he was a high school graduate.
An employee’s testimony that he or she failed to read a card does
not necessarily invalidate the Board’s reliance on the card as evi-
dence of majority support. Ona Corp., 261 NLRB 1378, 1410
(1982), enfd. 729 F.2d 713 (11th Cir. 1985). We find that Fisher’s
card is valid.
40 Robin Deatrick became a group leader 2 or 3 weeks after the
election. Her card is signed, filled out, and dated September 20. She
testified that she was solicited by McClain. She testified that
McClain did not talk about the purpose of the card, but he did say
‘‘nobody will ever find out that I signed the card.’’ McClain agreed
to leave a card for her in the solvent room. She read and signed the
card and gave it back to McClain in the parking lot after work. We
find that Deatrick’s card is valid.
41 Duane Jenkins testified that he signed and filled out his card
dated September 19, after Clum had given him the card in the
breakroom. When asked whether he read the card, Jenkins replied,
‘‘No, just the information. Where it says you’re to put your name
and date.’’ He left the card in Clum’s car. He cannot recall the sub-
stance of any discussion with Clum when Clum gave him the card.
Like Fisher’s card, we find that Jenkins’ card is valid.
42 Billie Edwards testified that he read and signed a card at the
second-shift meeting, and that Smith talked about the use of the
cards, but he could not recall what Smith said because it had been
so long ago.
43 Sherry Carpenter testified that McClain gave a card to her after
work on September 20 in the parking lot. She took it home, read
it over, signed it, and then gave it to McClain the next day. She tes-
tified that she had no discussion with McClain or anyone else about
the purpose of the card.
44 Peggy Pegg testified that she read and signed a card on Sep-
tember 20 after she received it in the parking lot from McClain. She
testified that McClain asked her to read it over to see if she under-
stood it, and that he told her that it would be used ‘‘to give the
union authorization to represent me.’’
We also find that the cards of Kathy McDougle,30
James Lehman,31 and Scott Evans32 are valid. Their
testimony does not establish that Smith deliberately
and clearly canceled the clear authorization on their
cards by stating that the only purpose of their card was
to obtain an election or vote.
The following 12 employees testified that they read
and signed cards without any disqualifying discussion
with any card solicitor; Sue Kinn,33 Dean Koenig,34
Yeshai Erickson,35 Janet Maxwell,36 Steve Swallow,37
Kenneth Myers,38 Brad Fisher,39 Robin Deatrick,40
Duane Jenkins,41 Billie Edwards,42 Sherry Carpenter,43
and Peggy Pegg.44 We find these cards to be valid. We
note that the Respondent has no objections to the cards
signed by Kinn, Erikson, Maxwell, Swallow, Jenkins,
Carpenter, and Pegg.
We find that the cards of employees Donald Ander-
son, James Crow, Charlene Wireman, John Szippl,
Steve Unterbrink, Timothy Pulford, Michael Selby,
Nathan Weis, Todd Reynolds, Melissa Garrick, Carla
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Falk, Rita McVetta, Anna Goddard, Charles Todd
Marshall, Elva Leffler, Tammy Thompson, Sonya
Gordey, Cheryl Campbell, Todd Grismore, Doris
Blackburn, Curt Stover, Anthony Lawrence and David
Taviano are valid. The pertinent testimony of these 23
employees establishes that even though they were told
that the cards were for an election or a vote, they were
not told either explicitly or in substance that the cards
would be used only or solely for an election or vote
or for no purpose other than to help get an election or
a vote as required to invalidate the cards under Gissel.
Donald Anderson testified that he read and signed
the front of his card at the September 19 first-shift
meeting, but did not read the back of the card because
he was in a hurry. He testified that Smith stated that
‘‘they needed a majority for the UAW to recognize,
that they needed an election, or we needed, you
know—I don’t know how I want to put it—recognition
for the employees.’’ On cross-examination, Anderson
testified as follows:
A. I can’t remember most of it, but he [Smith]
was saying how the UAW would help us and
other things to that effect, that we needed to vote
on getting the UAW in on other things, and the
green cards would help us get the election in.
Q. Alright, so you thought when you signed
this card that you were looking for an election?
A. Basically to get the election in, to have—
yes.
On redirect examination, Anderson was asked the fol-
lowing:
Q. You indicated that Mr. Smith also said
something about recognition; is that correct?
A. I think I said that.
Q. And do you recall what Mr. Smith said
about recognition?
A. Only that I think as people, that we should
be recognized to hear what we have to say basi-
cally. I think I mean by recognition, I mean that
they should be heard, what we have to say, you
know.
He was not told that the only purpose of the card was
to have an election.
James Crow filled out and signed his card dated
September 19. He received it from Clum after work in
the parking lot. On cross-examination, he testified as
follows:
Q. Did [Clum] say anything about the purpose
of the card?
A. Not to me, no.
Q. Did he tell you what the card would be used
for?
A. It would be used to help possible if we have
enough sign them we would be able to have an
election.
Q. Did he say anything else about the purpose
of the cards?
A. Not to my recollection.
Nothing that Clum said negated the written language
of the card or amounted to a direction to Crow to dis-
regard the written language authorizing the UAW to
represent him. Nor was Crow told that the only pur-
pose of the card was to have an election. Montgomery
Ward & Co., 288 NLRB 126, 128 (1988). He became
a group leader after the election in March 1990.
Charlene Wireman attended the second-shift meeting
where she read and signed her card dated September
19. On cross-examination, she was asked, ‘‘Did Smith
explain the purpose of the cards at the meeting?’’ She
replied, ‘‘he said that they would be used to get a vote
if 70%—65 or 70% people signed them.’’ She further
testified as follows:
A. And they would be confidential, and—and
he would—the UAW would uphold with us if
anything would happen from the time we signed
the card until after the election.
. . . .
A. They would protect us from the date we
signed the card up until after the election.
Q. Did Mr. Smith say anything else about the
card?
A. Not that I can recall.
We find that Wireman’s card is valid. Smith did not
negate the clear written authorization of the card nor
did he say that the only purpose of the card would be
for an election.
John Szippl testified that he read and signed his card
at the first-shift meeting. He was not asked about what
Smith said. We find that Szippl’s card is valid.
Steve Unterbrink testified that he read and signed
his card dated September 20 after receiving it from
Clum in the lunchroom. On cross-examination,
Unterbrink stated that before he signed the card he
talked to Baumgartner, who told him ‘‘it was to bring
a vote for the UAW and that, that’s basically what he
said.’’ Unterbrink further testified as follows:
Q. Did he say anything else?
A. No.
Q. Have you told me everything you and
Baumgartner talked about as far as the cards are
concerned that day?
A. He just told me it was to bring a vote, and,
for the UAW.
Q. When you later talked to Mr. Clum, when
you signed the card, did you and he have any dis-
cussion about the purposes of the card?
843DTR INDUSTRIES
A. No.
Q. Did Baumgartner tell you the card would be
kept confidential?
A. Yes, he did.
Q. Did Mr. Baumgartner say anything else to
persuade you to sign the card?
A. He said that the union could get us more
things, better benefits.
We find that Unterbrink’s card is valid. Based on the
totality of his testimony, we do not find that
Baumgartner directed him to disregard the clear au-
thorization on the card he signed when solicited by
Clum 2 hours later. Unterbrink merely testified what
Baumgartner ‘‘just told’’ him. He did not testify that
Baumgartner stated that the card would be used solely
for the purpose of an election. In these circumstances,
Unterbrink is bound by the clear language of what he
signed. Gissel, supra, 395 U.S. at 606. He became a
group leader after voting in the election.
Timothy Pulford read and signed his card dated Sep-
tember 19 at the first-shift meeting. On cross examina-
tion, he testified that Smith told employees ‘‘that the
cards would be used to get a vote and DTR to try to
get a union in there, which is UAW . . . . [A]ll that
he said is that we had to have the majority if we want-
ed the majority to get in there.’’ In response to a ques-
tion from the judge about what Smith said he was
going to do, Pulford replied, ‘‘He just said that since
we got the majority of the vote, that he would submit
them.’’ Pulford also testified that some employees
were concerned about their jobs and that Smith did say
that the cards would be kept confidential. We find that
Pulford’s card is valid. Smith did not state that the sole
purpose for signing the card was to obtain an election
so as to direct Pulford to disregard the card’s clear au-
thorization above Pulford’s signature. Jeffrey Mfg. Di-
vision, 248 NLRB 33, 36–37 (1980).
Michael Selby testified that he read and signed a
card at the first-shift meeting on September 19. He tes-
tified that Smith said, ‘‘when we sign the card, if we
got a majority it would be put up to a vote, that no-
body would ever know that we signed the card . . . .
That’s my recollection. That’s about it.’’ We find that
Selby’s card is valid. He was not assured that the card
would be used for no purpose other than to get an
election.
Nathan Weis testified that he read and signed his
card at the second-shift meeting. On direct examina-
tion, he testified that Smith said, ‘‘that we needed so
many to, green cards signed to have an election,’’ and
that he did not recall Smith saying anything else, al-
though his recollection was pretty hazy because of the
passage of time. We find that Weis’ card is valid.
Montgomery Ward, supra, 288 NLRB at 128 fn. 13.
Todd Reynolds testified that he read, signed, and un-
derstood his card dated September 22. Contrary to the
judge’s finding, Reynolds testified that he was solicited
by Baumgartner, not Clum, and that Baumgartner,
merely told him ‘‘that the card would be confidential
. . . that if enough green cards were signed there
would be an election.’’ When asked what the language
on the card ‘‘used to secure recognition’’ meant, Rey-
nolds replied, ‘‘that if enough cards were signed, that
the union could have an election. Exist, or at least
have a chance to exist after an election. That’s what
I understood at the meeting.’’ Reynolds also testified
that he understood the card language ‘‘would be used
for collective bargaining’’ to mean the ‘‘same sort of
thing where the union can bargain for wages,’’ after an
election. We find that Reynolds’ card is valid. Under
Gissel, Reynold’s subjective motivation or under-
standing is irrelevant. In any event, Baumgartner’s so-
licitation did not clearly direct Reynolds to disregard
the card’s express authorization, nor assure him that
his card would be used for no purpose other than to
get an election.
Melissa Garrick read and signed her card, dated
September 20, after it was given to her by McClain in
the parking lot. On cross-examination, she testified that
McClain told her, ‘‘just that if the majority of the peo-
ple signed it at work then the UAW would represent
us in a vote’’ . . . and that, ‘‘Just that nobody would
ever know that I signed one.’’ We find that Garrick’s
card is valid. Jeffrey Mfg. Division, supra, 248 NLRB
at 55 (Sonefelt’s card).
Carla Falk testified that she read and signed her card
at the second-shift meeting. On cross-examination, she
stated that Smith told her the following:
He said they needed a certain percentage of the
people in the factory to sign a card to show an
interest, that means they showed an interest in let-
ting the UAW represent them, represent the peo-
ple . . . . He said that this was no way was a
vote. That it would just-if there was enough sig-
natures we would get a vote. That no one would
see them or know that we signed them.
We find that Falk’s card is valid as Smith did not as-
sure her that the card would be used for no purpose
other than to get an election.
Rita McVetta read and signed her card at the first-
shift meeting. She did not stay for the whole meeting.
On cross-examination, she testified that Smith, ‘‘just
told us that no one would ever know about [the cards
and] . . . we had to have certain amounts so we would
be able to have a chance to vote, if we wanted to.’’
We find that McVetta’s card is valid and that Smith’s
solicitation did not amount to an assurance that her
card would be used for no purpose other than to help
get an election.
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 No cards were distributed at this meeting, an election.
Anna Goddard read and signed her card at the first-
shift meeting. On cross-examination, she testified that
Smith told employees:
Just that if there was a certain amount of employ-
ees at DTR that would sign the cards, that they
would represent us, the associates, at DTR for a
union. That it wouldn’t be an automatic vote. Just
that if they got enough cards, that they would rep-
resent us . . . . That the union wouldn’t auto-
matically be in if we had 57 votes, or I mean 57
people sign the cards, that it was just, we would
get a chance to vote.
She also testified that Smith told employees that the
cards would be kept confidential. We find that
Goddard’s card is valid. Her testimony does not estab-
lish that Smith told her that the cards would be used
only for a vote.
Charles Todd Marshall testified that he read and
signed a card at the first-shift meeting on September
19. On cross-examination, he testified that Smith told
employees that they had to get so many cards signed
‘‘to be able to have a vote on the union . . . . [T]o
be represented by the union,’’ and that the cards would
be confidential. Marshalls’ testimony is insufficient to
establish that Smith assured him that his card would be
used for no purpose other than to get an election.
Elva Leffler testified that she read and signed her
card in the shop on September 20. On cross-examina-
tion, she testified that she could not remember which
employee gave her the card and that several of the em-
ployees talked to her about signing the card, but they
did not explain to her what the card would be used for.
She stated she knew what the card would be used for
based on what she heard Smith say at the union meet-
ing. She testified that Smith told employees that the
cards were totally confidential and that, ‘‘the card was
to—if a high enough percentage of the employees
signed the card, that would give us the option to have
a vote, to either bring in or not bring the union.’’ She
also testified as follows:
Q. Did Mr. Smith indicate there was any other
purpose for the card?
A. Basically, he did tell us what would happen
with the card, but that was the purpose of the
card.
Q. What did he tell you would happen with the
card?
A. He said that he was going to transfer on to
the union office. It was part of the legality that
goes on with the card. He said, it’s total confiden-
tiality. He said, there is no way it would be a
threat to us as employees—that it’s total confiden-
tial and we would never be brought out in the
open about it.
Q. Were there any questions from the floor
about the purpose or use of the cards? . . .
A. Basically, people were concerned that it
would jeopardize their jobs.
We find that Leffler’s card is valid. Her testimony
does not establish that Smith assured her that the cards
would be used for no purpose other than to get an
election.
Tammy Thompson testified that she read and signed
her card dated September 20 after receiving it from
Baumgartner in the parking lot. She testified that
Baumgartner did not indicate the purpose of the card.
She testified that Smith told employees at a September
16 union meeting45 that the purpose of the cards was,
‘‘to get enough to have an election.’’ She also stated
that Smith did not indicate that there was any other in-
tended purpose for the cards and that the cards would
be confidential. We find that Thompson’s card is valid.
There is nothing in the circumstances surrounding the
solicitation of her card that directed her to disregard
the card’s clear authorization, nor was she assured that
the card would be used for no purpose other than to
get.
Sonya Gordey read and signed her card at the first
shift meeting on September 19. When asked what
Union Representative Smith told employees, she re-
plied:
Just mainly about you had to get enough people
to sign the card to have an election. They needed
some percentage, and I’m not for sure what the
percentage was. And when they got that, they’d
send the card somewhere, and it would be con-
fidential and no one would ever know that we
signed them . . . .
On cross-examination, she replied negatively when
asked whether Smith indicated any other purpose for
the cards. We find that Gordey’s card is valid. Her tes-
timony does not establish that Smith deliberately can-
celed the express authorization on her card or other-
wise assured her that it would be used for no purpose
other than to get an election.
Cheryl Campbell read and signed her card at the
first shift meeting on September 19. On cross-examina-
tion, she testified, ‘‘that Smith . . . told us, if we had
enough signatures, I think it was 60% that we would
be able to have a vote.’’ She did not recall Smith indi-
cating any other purpose for the card, but did recall his
stating that the cards would be kept confidential and
would be sent to ‘‘the main office or something to be
counted to make sure there were enough to have an
election.’’ We find that Campbell’s card is valid. Her
testimony fails to establish that Smith deliberately and
clearly canceled the express authorization on her card
845DTR INDUSTRIES
46 The absence of an 8(a)(5) finding here does not affect the pro-
priety of a bargaining order required to remedy extensive and perva-
sive unlawful conduct. Eagle Material Handling of New Jersey, 224
NLRB 1529 (1976).
47 In Gissel, the Court identified two categories of cases in which
a bargaining order would be appropriate. The second category in-
volves ‘‘less extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine majority
strength and impede the election processes.’’ 395 U.S. at 613–615.
or otherwise assured her that the only purpose of the
card was to get an election.
Todd Grismore testified that he read and signed a
card at the first-shift meeting. On cross-examination,
he testified that Smith told employees that the cards
would be confidential, that Smith intended to turn
them in to the UAW, and that he ‘‘had to have a cer-
tain amount of those cards signed to have an elec-
tion,’’ and that he did not say that he needed the cards
for any other purpose. We find that Grismore’s card is
valid. Smith did not inform him that the only purpose
of the card was to get an election.
Doris Blackburn testified that she read and signed
her card at the first-shift meeting. On cross-examina-
tion, she testified that Smith said, ‘‘the purpose for the
cards, were to have a majority of the employees sign
them so there could be a vote for or against the
union,’’ and that Smith did not give any indication of
any other use for the cards, but he did say that they
would be kept confidential. She also testified that
Smith intended to send the signed cards ‘‘to Wash-
ington to get a release someway about the vote. I can’t
recall the exact thing he was going to do—who he was
going to send it to.’’ On redirect, she testified that
Smith ‘‘was just talking about the benefits of the union
for the associates . . . .’’ We find that Blackburn’s
card is valid. Smith did not inform her that the only
purpose of the card was for an election or vote.
Curt Stover testified that he read and signed his card
at home following the first-shift meeting on September
19, and that he gave his card to McClain the next day.
He could not recall any discussion with McClain. On
cross-examination, Stover testified that Smith told em-
ployees at the meeting ‘‘that the cards were to estab-
lish interests to have a vote for or against the union,’’
and he did not indicate that the cards had any other
purpose. Stover also testified that Smith indicated an
intent to send the cards ‘‘someplace to get clearance
to have the vote.’’ We find that Stover’s card is valid.
His testimony fails to establish that Smith stated that
the only purpose of the cards was to obtain an elec-
tion. We note that the Respondent has no objection to
counting Stover’s card.
Anthony Lawrence testified that he read and signed
his card at the first-shift meeting. On cross-examina-
tion, Lawrence stated that Smith told employees that
‘‘if he had a certain amount of cards signed, they
could have an election,’’ and that Smith did not indi-
cate any other use for cards, although he did state that
they would be kept confidential and sent to the union
office for authorization for an election. On redirect,
Lawrence acknowledged that he was in the back of the
meeting drinking coffee and was not paying attention
to everything that was said. We find that Lawrence’s
card is valid. Smith did not inform him that the only
purpose of the card was for an election.
David Taviano testified that he read and signed the
card at the second-shift meeting. On cross-examina-
tion, he testified that Smith explained to employees
that the purpose of the cards was to ‘‘establish a
vote.’’ Taviano did not remember Smith indicating any
other purpose for the cards; ‘‘the main thing was to get
a vote in for a union vote.’’ He testified that Smith
also told employees the cards would be confidential
and that Smith was going to send them in somewhere
like the federal government . . . .’’ On redirect,
Taviano remembered watching a movie about unions
and fair treatment and benefits. We find that Taviano’s
card is valid. His testimony fails to establish that
Smith told him that the only purpose of the card was
for an election or vote.
Based on the foregoing testimony, we find that the
46 cards discussed above, a clear majority, constitute
valid designations of the Union as bargaining rep-
resentative.
The Propriety of a Bargaining Order
We find merit in the General Counsel’s exception to
the judge’s failure to grant a bargaining order to rem-
edy the Respondent’s extensive and pervasive unfair
labor practices.46 With respect to the appropriateness
of a bargaining order, a number of factors lead us to
conclude that the Respondent’s unfair labor practices,
in the presence of a preexisting card majority, and re-
gardless of a bargaining demand, ‘‘have the tendency
to undermine majority strength and impede the election
processes,’’ and require a bargaining order as a rem-
edy.47
In Gissel, the Court stated that in determining
whether a bargaining order remedy is warranted, the
Board may properly consider ‘‘the extensiveness of an
employer’s unfair labor practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future.’’ 395 U.S. at 614–615. The
Court further stated that a bargaining order should
issue in category-two cases where the Board finds that
‘‘the possibility of erasing the effects of past practices
and of ensuring a fair election (or a fair rerun) by the
use of traditional remedies, though present, is slight
and that employee sentiment once expressed through
cards would, on balance, be better protected by a bar-
gaining order.’’ Ibid.; see also International Door, 303
NLRB 582 fn. 2 (1991).
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 Chemvet Laboratories v. NLRB, 497 F.2d 445, 448 (8th Cir.
1974). See Thriftway Supermarket, 276 NLRB 1450, 1451 (1985),
and cases cited there, enfd. mem. 808 F.2d 835 (4th Cir. 1986).
49 Indeed, in finding a bargaining order warranted, we deem it sig-
nificant that the Respondent’s antiunion campaign was engineered by
management ‘‘from top to bottom,’’ including its president, human
resource managers, department heads, and front-line supervisors. See
Thriftway Supermarket, supra, 276 NLRB at 1451.
50 See Quality Aluminum Products, 278 NLRB 338 (1986), enfd.
813 F.2d 795 (6th Cir. 1987) (the employer demonstrated a ‘‘will-
ingness to carry out its threats’’); Tipton Electric Co., 242 NLRB
202 (1979), enfd. 621 F.2d 890, 898–899 (8th Cir. 1980).
The Respondent’s far-reaching unlawful conduct, oc-
curring both before and after the election, brings this
case under the Gissel category two umbrella. The Re-
spondent’s unlawful conduct both before and after the
election created a lasting coercive impact not likely to
be dissipated by traditional remedies. After learning of
the existence of union activity at its plant, the Re-
spondent immediately embarked on a widespread
antiunion campaign calculated to discourage support
for the Union. Respondent’s violations were extensive
in number, severe in nature, and constitute the kinds
of unfair labor practices which destroy election condi-
tions for a long period of time.
The Respondent’s threats of plant closure, job loss,
and layoffs carried a long-term coercive impact, be-
cause such threats constitute ‘‘one of the most potent
instruments of employer interference with the right of
employees to organize.’’48 In this case, the coercion
was exacerbated because some of the unlawful acts,
i.e., promises of improved wages and working condi-
tions, postelection wage increases, and improved bene-
fits, were communicated by the Respondent’s presi-
dent, Yuji Kobayashi, whose position made it impos-
sible to take the threats, promises, and improvements
lightly. President Kobayashi’s October 18 memo ad-
dressed to all employees implicitly promised improved
wages and working conditions if the Union lost the
election. One week before the election, Kobayashi
issued a 4-page letter to employees telling them that
‘‘our business would automatically be reduced if the
union wins the election’’ and our customers took away
our sole source business, and ‘‘if the contract is nego-
tiated without a strike, employees are laid off while the
inventory is used,’’ and ‘‘bringing in a union would
lose business for DTR.’’ As explained here, and
viewed against the backdrop of the Respondent’s other
unfair labor practices, Kobayashi’s statements were not
based on objective facts as to demonstrably probable
consequences beyond the Respondent’s control suffi-
cient to support his conclusions about how union orga-
nizing would affect his business or the employees’ job
tenure. Such ‘‘hallmark’’ threats of layoff and loss of
business coming from the Respondent’s highest official
are ‘‘among the most flagrant.’’ Eddyleon Chocolate
Co., 301 NLRB 887, 891 (‘‘the most pernicious
. . . .’’ Such threats are ‘‘more likely to destroy elec-
tion conditions for a longer period of time . . . .’’).
Supervisors Jordan, Lewandowski, Falk, and
Brinkman as well as Department Head Wagner and
Human Resources Manager Haynes supplemented
President Kobayashi’s written communications to em-
ployees by actively participating in the campaign
through related threats, coercion, or promise of bene-
fits.49 These managers and supervisors continued to re-
peat the messages conveyed by President Kobayashi in
his written communications and meetings with employ-
ees—unionization would result in plant closure, lay-
offs, and loss of business, while the defeat of the
Union in the election would result in wage increases
and improved benefits and working conditions. Fur-
ther, by simultaneously promising a wage increase if
the Union were defeated, the Respondent conveyed the
powerfully coercive message that employees would
lose their livelihood for supporting the Union, but
would receive substantial benefits for rejecting it. The
coercion was made more credible by the fact that em-
ployees were already receiving illegal benefits and
promised improvements in working conditions that
were unlawfully solicited and remedied through the
communication box during the midst of the union cam-
paign. The illegal threats, promises, solicitations, and
improvements were not isolated instances, were re-
peated over and over again by the Respondent’s
agents, and affected virtually all employees. Thus, the
coercion pervaded the unit.
After the Union lost the election, President
Kobayashi then announced a substantial wage increase
averaging $1.85 per hour for each employee, retro-
active to about the election date. Kobayashi also un-
lawfully announced an individual calculation of the
new wage scale progression and a shorter probationary
period that resulted in improved holiday pay for certain
employees. Indeed, by granting these benefits when the
Union was defeated, the Respondent further solidified
the credibility of its word and that it would make good
on the implied promise of improved wages and bene-
fits in the October 18 memo to employees and on the
promises of wage increases and benefits made by Su-
pervisors Haynes and Lewandowski.
Thus, if a new election were held, employees who
have already seen the Respondent carry out its prom-
ises would be justified in believing not only that addi-
tional benefits would flow from a second union defeat,
but also that the Respondent would similarly carry out
its threats to close the plant in the event of a union
victory.50
In light of the foregoing, we agree with the General
Counsel that the unfair labor practices found here are
the type of lingering violations that make the holding
of a free election unlikely. Gissel, supra at 610. Rather,
the employee’s representation desires expressed
847DTR INDUSTRIES
51 We reject the Respondent’s contention that turnover in the bar-
gaining unit warrants denial of a bargaining order. The validity of
a bargaining order depends on evaluation of the situation as of the
time the unfair labor practices were committed. Fun Connection &
Juice Time, 302 NLRB 740 (1991). Accord: Exchange Bank v.
NLRB, 732 F.2d 60, 64 (6th Cir. 1984). Cf. NLRB v. Action Auto-
motive, 853 F.2d 433, 434 (6th Cir. 1988), cert. denied 488 U.S.
1041 (1989) (high turnover unaccompanied by objective evidence
that new employees do not support the union is no evidence of loss
of majority status by the union).
Even assuming the relevance of employee turnover, we find that
the evidence submitted by the Respondent, that the bargaining unit
has expanded three or four fold and that 17 unit employees have
been promoted out of the unit, does not remove the basis for the
bargaining order. Even ‘‘substantial and nearly complete turnover’’
does not necessarily render a bargaining order inappropriate. NLRB
v. Lou DeYoung’s Market Basket, 430 F.2d 912, 915 (6th Cir. 1970).
The Respondent points to no action it took to eradicate the effects
of its threats of plant closure, layoffs and job loss, its promises of
benefits, and its postelection fulfillment of promises to grant wage
increases and other benefits after the Union lost the election. This
serious and widespread misconduct demonstrates that the Respondent
is deeply committed to its antiunion stance, has already taken steps
indicating that it will not permit employees an uncoerced choice in
a new election, and is not likely to retreat from that hardened institu-
tional commitment.
Also, the record fails to establish complete turnover or replace-
ment of the Respondent’s management, who from top to bottom are
responsible for the extensive antiunion campaign affecting all em-
ployees in the unit. Thus, the Respondent’s powerful and coercive
violations are likely to ‘‘live on in the lore of the shop,’’ and to be
passed on from old employees or supervisors to new arrivals, there-
by exerting a continuing coercive influence. See Bandig, Inc. v.
NLRB, 583 F.2d 765, 772 (5th Cir. 1978); Salvation Army Resi-
dence, 293 NLRB 944, 945 (1989), enfd. mem. 723 F.2d 846 (2d
Cir. 1990).
through authorization cards would be better protected,
on balance, by the issuance of a bargaining order. Oth-
erwise, the Respondent would be rewarded for its
wrongdoing. Id.51
Accordingly, we shall order the Respondent to bar-
gain with the Union as the duly designated representa-
tive of employees, effective September 25, 1989, the
date the Respondent embarked on a clear course of un-
lawful conduct after the Union had obtained authoriza-
tion cards from a majority of unit employees. Crown
Cork & Seal Co., 308 NLRB 445 (1992); Bi-Lo, 303
NLRB 749 (1991); Astro Printing Services, 300 NLRB
1028 (1990).
Amended General Remedial Provisions
We agree with the judge that the Respondent’s un-
fair labor practices warrant a broad cease-and-desist
order requiring the Respondent to cease and desist
from committing the specific violations found and
from violating the Act ‘‘in any other manner.’’ We re-
ject, however, the judge’s recommended special reme-
dial order that the Respondent reimburse the Board for
all costs incurred in this proceeding from the date the
charge was filed until the case is closed. We note that
the defenses raised by the Respondent to its unfair
labor practices were debatable rather than frivolous and
that the merit of several allegations turned on credi-
bility resolutions. Workroom for Designers, 274 NLRB
840, 842 (1986) (quoting Heck’s Inc., 215 NLRB 765,
767 (1974)). The cost reimbursement remedy is not ap-
propriate in this case.
CONCLUSIONS OF LAW
1. The Respondent, DTR Industries, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica, UAW is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed at the Respondent’s facility at 320 Snider Road,
Bluffton, Ohio, excluding all group leaders, office cler-
ical employees, professional employees, guards and su-
pervisors as defined in the Act, constitute a unit appro-
priate for collective bargaining within the meaning of
Section 9(a) of the Act.
4. The Union is now, and at all times since Sep-
tember 25, 1989, has been designated by a majority of
unit employees through valid authorization cards as
their exclusive collective-bargaining representative
within the meaning of Section 9(a) of the Act.
5. By soliciting, promising to remedy, and rem-
edying grievances from employees in order to discour-
age support for any collective bargaining agent they
might choose; promising improvements in wages, ben-
efits, and other terms and conditions of employment if
employees vote against union representation; threat-
ening employees with plant closure, job loss, and lay-
offs if they vote in favor of a union; interrogating an
employee as to the identity of union activists; main-
taining or giving effect to an invalid no-solicitation/no-
distribution rule; and giving raises and other improve-
ments in wages, benefits, and working conditions to
employees as promised rewards for voting against the
Union, the Respondent has violated and is violating
Section 8(a)(1) of the Act.
6. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, DTR Industries, Inc., Bluffton, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting, promising to remedy, and remedying
grievances from employees in order to discourage sup-
port for any collective-bargaining agent they might
choose; promising improvements in wages, benefits,
and other terms and conditions of employment if em-
ployees vote against union representation; threatening
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order 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.’’
1 The Board has studied how various Regions at present handle
issues relating to the use of interpreters at elections. The Board has
found that the Regions agree that the problems presented by non-
English speaking voters are serious and growing. In some areas of
Southern California, for example, a large percentage of elections are
at least bilingual, and many involve three or more languages.
employees with plant closure, job loss, and layoffs if
they vote in favor of a union; interrogating an em-
ployee as to the identity of union activists; maintaining
or giving effect to an invalid no- solicitation/no-dis-
tribution rule; and giving raises and other improve-
ments in wages, benefits, and working conditions to
employees as promised rewards for voting against the
Union. This does not, however, require or permit any
unilateral changes of improved wages, benefits or
working conditions.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of employees in the aforementioned
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
(b) Post at its place of business in Bluffton, Ohio,
copies of the attached notice marked ‘‘Appendix.’’52
Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER OVIATT, concurring.
I agree fully with the majority’s determination that
the Respondent’s numerous and highly coercive unfair
labor practices make the holding of a fair election un-
likely. I also recognize that the Supreme Court has ex-
plicitly approved counting single-purpose authorization
cards in circumstances nearly identical to those under
which many of the cards in this case were solicited—
where the card solicitor tells the signer that the card
will be used to get an election or will be kept secret.
NLRB v. Gissel Packing Co., 395 U.S. 575, 585 fn. 5,
608 (1969). I write separately to express my concern
about the continuing vitality and fairness of the
Board’s Cumberland Shoe rule. See Cumberland Shoe
Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d 917
(6th Cir. 1965).
Under Cumberland Shoe, an unambiguous authoriza-
tion card that clearly authorizes the union to represent
the employee will be counted unless the employee is
told in so many words that the card will be used solely
for the purpose of holding an election. NLRB v. Gissel
Packing Co., supra at 584. Once the Board determines,
pursuant to Gissel, that a fair election is unlikely and
that a bargaining order may be a more effective rem-
edy than an election, that determination transforms au-
thorization cards into the equivalent of a secret-ballot
election. ‘‘The ultimate justification for this remedy,
however, must be the protection of employee free
choice.’’ Note, Union Authorization Cards, 75 Yale
L.J. 805, 818 (1966). Thus, for a Gissel bargaining
order to be warranted, the Board’s determination
should be that the authorization cards truly reflect a
majority of the unit employees’ free choice of the
union. In many cases, I believe that the determination
is based on an unsound assumption.
Even when Cumberland Shoe was decided, the
Board has recognized that authorization cards are a
‘‘notoriously unreliable method of determining major-
ity status of a union.’’ NLRB v. Flomatic Corp., 347
F.2d 74, 79 (2d Cir. 1965). That is even truer today.
In part this is due to the fact that a large segment of
our work force is composed of individuals who do not
speak English as their first language, or at all, or, if
they do, cannot read simple declarative sentences. The
unreliability of cards reflects the fact that of those who
do read, many cannot comprehend or interpret cor-
rectly the technical language on an authorization card.
These problems are compounded today by the increas-
ing reliance on oral communications, a by-product of
the television age. For these reasons, I believe that the
average employee depends more at present than 30
years ago when Cumberland Shoe was handed down,
on the card solicitor’s oral communications. No longer
can we confidently presume, as did the Gissel court,
that an employee is sufficiently sophisticated to ‘‘be
bound by the clear language of what they sign . . . .’’
(Gissel, supra at 606), when that employee may never
get to the point of being able to comprehend that lan-
guage.
Since 1963, when Cumberland Shoe was decided,
the demographics of our nation have changed dramati-
cally. There has been a massive influx of non-English
speaking workers.1 Many of these recent immigrants
come from countries that do not have labor laws as we
know them, and thus have no previous exposure to the
application of our complex labor statutes.
849DTR INDUSTRIES
2 The Department of Education reports that 20 percent of Amer-
ican adults are functionally illiterate, and another 34 percent are only
marginally literate. Each year approximately 2.2 million people join
the ranks of the adult illiterate population.
The National Education Association’s 1992 English Language
Proficiency Study revealed that approximately 13 percent of Amer-
ican adults do not read at all, or read below the 4th grade level.
3 A 1985 study, conducted by the National Assessment for Edu-
cation Progress of 3,600 adults between the ages of 21 and 35 found
that 80 percent could not read a bus schedule; 73 percent could not
interpret a newspaper story; 63 percent could not follow written map
directions; 28 percent could not write a billing-error letter; and 23
percent could not locate the gross pay-to-date on a paystub. National
Assessment of Educational Progress, Educational Testing Service,
Literacy Profiles of America’s Young Adults, (1985). See also Dun-
lop, To Form A More Perfect Union, in 9 The Labor Lawyer (ABA)
at 5 (Winter 1993).
4 There is a growing body of scholarship on the effects of the shift
away from a print-based culture toward a video-based culture. Be-
cause we now live in a society where the average household watches
more than 7 hours of television on a daily basis, the correlation be-
tween television and literacy requires further study. There are those
who believe that the rise of the video culture closely resembles an-
cient oral cultures where messages were events to be absorbed in a
group, rather than concepts to be pondered in silence. Others argue
that the video culture, like the oral culture, tends to destroy individ-
uality, logical and sequential thought, abstract conceptualizing, defer-
ral of gratification, and self-control—the very qualities that an em-
ployee must have to understand the meaning and significance of an
authorization card and to be able to exercise a free choice in signing
the card. See e.g., J. Meyrowitz, No Sense of Place (1985); G. Com-
stock, Television in America (1980); T. Williams, The Impact of Tel-
evision (1986); N. Postman, The Disappearance of Childhood
(1979); W. Ong, Orality and Literacy (1982).
5 See Somerset Welding & Steel, 304 NLRB 32 (1991) (Member
Oviatt, dissenting in part), remanded on other grounds 987 F.2d 777
(D.C. Cir. 1993).
Even for employees with English as a first language,
recent studies have identified serious problems with
their comprehension of the written word. Plainly put,
a large segment of our English-speaking work force is
functionally illiterate, and that segment appears to be
growing despite recent efforts to improve the situa-
tion.2 Thus, there appears to be a growing population
of workers who are unable to understand the printed
words on an authorization card.
Even if an employee is literate by today’s standards,
there is a good possibility that he will not fully under-
stand the authorization card’s language.3 For the aver-
age employee who is not familiar with labor law terms
but is familiar with secret-ballot elections in a demo-
cratic society, the words ‘‘authorize to represent me
for collective bargaining purposes’’ could very well
mean that the authorization goes into effect only after
an election. Thus, even where a signed authorization
card’s language is unambiguous, I believe there is a
distinct possibility that the card signer did not really
understand that he was authorizing the union to be his
exclusive bargaining representative without an election.
That possibility is even stronger today, in this age of
television, than it was 30 years ago when Cumberland
Shoe was decided. Our television culture emphasizes
oral communication at the expense of comprehension
of the written word.4
For these reasons, workers today rely, even more
than before, on oral representations made by the card
solicitor. A card solicitor, however, is at present under
no legal duty to fully inform an employee about how
the card will be used. As long as the solicitor does not
tell the employee that the sole reason for his signing
the card is to secure an election the card will count.
This frees the card solicitor to refer to the fact that the
card can be used to get an election, and thus to mis-
lead the card signer into believing that the card will be
used for that purpose and for no other. Thus, the
present application of Cumberland Shoe widens further
the gap between the dictates of the law and the reali-
ties of industrial life. A reassessment of Cumberland
Shoe plainly is needed.
Apart from problems of comprehension, I have
found, in my experience, that employees often sign au-
thorization cards for reasons having little or nothing to
do with an informed, uncoerced willingness to have a
union bargain for them. In a typical organizing cam-
paign, like the campaign in this case, authorization
cards are handed out to a group of employees after a
union organizer’s speech. In such a setting many em-
ployees may be induced to sign an authorization card
because others in the group have signed—a kind of
group psychology—without ever having read the
card’s language. Other employees may sign cards be-
cause they fear union retaliation, or simply because
they want the union organizer to leave them alone.5
In my view, it is time for the Board to discard the
Cumberland Shoe rule’s legal fiction and to recognize
that a signed authorization card in many circumstances
will not accurately reflect an employee’s free and
knowing choice of a union as his exclusive bargaining
representative. I believe that the Board should require
that, if an authorization card is to be deemed valid: (1)
it should state affirmatively that when the employee
signs the card this constitutes a direct authorization to
the union to bargain for the employee without an elec-
tion; and, (2) the card’s solicitor must explain to the
employee that when he signs the card he authorizes the
union to represent him for collective bargaining, even
without an election.
850 DECISIONS 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT solicit, promise to remedy, and rem-
edy grievances in order to discourage employee sup-
port for any collective-bargaining agent they might
choose.
WE WILL NOT promise improvements in wages, ben-
efits, and other terms and conditions of employment if
employees vote against union representation.
WE WILL NOT threaten employees with plant closure,
job loss, and layoffs if they vote in favor of a union.
WE WILL NOT unlawfully interrogate employees as
to the identity of union activists.
WE WILL NOT give raises and other improvements in
wages, benefits, or working conditions to our employ-
ees as promised rewards for voting against union rep-
resentation (we are not, however, required or permitted
to change these improvements unilaterally).
WE WILL NOT maintain or give effect to an invalid
no- solicitation/no-distribution rule.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to engage in union activity or protected con-
certed activity in accordance with Section 7 of the Act.
WE WILL bargain, on request, with the International
Union, United Automobile Aerospace and Agricultural
Implement Workers of America, UAW, as the exclu-
sive collective-bargaining representative of all employ-
ees in the following unit:
All production and maintenance employees em-
ployed at our facility at 320 Snider Road,
Bluffton, Ohio, excluding all group leaders, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
All our employees are free to engage in protected
concerted activities.
DTR INDUSTRIES, INC.
Charles Adamson, Esq., for the General Counsel.
James O. Perrin, Esq. and James A. Rydzel, Esq. (Jones,
Day, Reavis & Pogue), of Cleveland, Ohio, for the Re-
spondent.
Robert Hammonds, of Toledo, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge. Hearings
were held in this proceeding on June 18, 19, and 20, 1990,
and on July 29, 30, and 31, 1991. A complaint by the Gen-
eral Counsel issued on March 23, 1990, based on a charge
filed by International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW (the
Union), on February 8, 1990. The issues presented are
whether the Respondent violated the statute by refusing to
bargain with the Union, and whether it committed a number
of violations of Section 8(a)(1) of the Act. Briefs were filed
by the General Counsel and the Respondent after the close
of the hearing.
On the entire record, and from my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Business of the Respondent
DTR Industries, Inc. (the Respondent), is an Ohio corpora-
tion with an office and place of business in Bluffton, Ohio,
where it is engaged in the manufacture and sale of auto-
motive components. Annually, in the course of its operation
there, it sold and shipped from the one location products,
goods and materials valued in excess of $50,000 to points
outside the State of Ohio. I find that the Respondent is an
employer within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
UAW, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Picture of the Case
In September 1989, the Union had authorization cards
passed around among the approximately 60 production and
maintenance employees of this Company. In a matter of
days—between September 19 and September 22—59 of the
employees signed the cards, all received in evidence here.
The cards in so many words ‘‘authorize UAW to represent
me in collective bargaining.’’
As soon as the cards were signed, on September 22, Hugh
Smith, the UAW International Representative who had engi-
851DTR INDUSTRIES
1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
neered the movement, mailed all these cards to the Board’s
Regional Office. On the 25th he filed a regular petition for
an election. The election was held on November 17, 1989.
Between the signing of the first cards by the employees
and the day of the election, the Respondent, via its manage-
rial officers, committed a countless number of violations of
Section 8(a)(1) of the Act to be sure the employees would
vote against union representation—threats to close down the
plant, threats to lay off employees, promises of increased pay
if the union were rejected, even the granting of improved
conditions of employment. All this will be detailed below,
for there is no really serious question of credibility on that
score. The employees were told they would be given the
raises after the election, Sure enough, a majority of the em-
ployees voted in the election and they rejected the Union.
Only 3 days later, the Company announced a pay increase
for all the employees involved. A very substantial raise, to
take affect retroactive to the very day of the election on No-
vember 17. That is how matters stood at the time the hearing
opened on June 18, 1990.
As I view this total picture, the real question of substance
to be decided is whether the Respondent must be ordered to
recognize the Union, and bargain with it now, as the com-
plaint and the General Counsel contend. If the Board’s order
does not establish the union as bargaining agent, the unfair
labor practices will really go unremedied. What really influ-
enced the employees to vote against the Union on November
17 was the Respondent’s promise to give them all a substan-
tial raise if they did so. The truth is that the principal reason
employees try to be represented by a union is to get more
money for their work. This Company gave these employees
exactly what they wanted. It was an outright illegal act by
the Company.
Under established Board law all I can do is order the Re-
spondent not to do that again. If I could order the Company
to take back that raise, if I could order the employees to re-
turn every penny of raises that they have been enjoying be-
tween November 17, 1989, and today—2 years of added
money—surely they would be inclined to vote for the Union
at the next election. But Board law does not permit me to
order that remedy.
Absent an affirmative order to bargain with the Union
now, all that can happen tomorrow is the holding of another
election. But there is no assurance that the Respondent will
not again give a good raise to its employees and thereby as-
sure a second defeat of the Union. It is for this reason that
the main issue here is the alleged violation of Section
8(a)(5), which, if proved, is followed by an affirmative bar-
gaining order.
To start with, it is an undisputed fact that no one on behalf
of the Union ever approached the Company to demand bar-
gaining rights and recognition as majority representative. The
Union never communicated with the Company before the
election. In a literal sense, therefore, there can be no finding
that the Respondent ‘‘refused’’ to bargain with the Union.
The General Counsel’s case rests on the Board’s ‘‘Gissel’’
principal.1 If a union in fact represents a majority of the unit
employees, and the company’s committed unfair labor prac-
tices are extensive, as in this case, the company can be or-
dered in remedy to bargain with the Union even if there
never was an outright demand. On this total record, I cannot
find that before the election the Union represented, or was
authorized to bargain for, a majority of the employees in the
unit involved.
On September 19, 1989, Smith, the UAW International
representative, had a meeting of employees at a motel; about
25 to 30 men were present. He gave a number of authoriza-
tion cards to an employee name Martin Clum for distribution
and solicitation. What did Smith say to the employees that
day was the purpose of the cards? What did Clum in his
widespread solicitation—he was a major solicitor among the
employees—tell the employees was the purpose of the cards?
Forty of these cards were signed that same day, 11 the next
day, and 3 more in the next 2 days. On the 22nd all 57 of
the cards were mailed to the Board’s Regional Office to sup-
port an election petition.
Smith, the visiting UAW representative, testified that when
he met with the employees he told them that the cards they
would be asked to sign would be used to get recognition, and
that if that failed they would be used to get an election.
Smith also admitted he told the employees that day that the
cards ‘‘were confidential,’’ and that the ‘‘company would not
see these cards.’’
Clum, the principal solicitor among the employees, started
his testimony by repeating Smith’s story, that the cards were
not to get an election but to obtain recognition directly from
the Company. As Clum continued to testify his story
changed.
Q. Isn’t it true, Sir, in your affidavit, you indicate
that when you gave them the card to sign, you told
them they weren’t voting for the union, they were just
requesting the opportunity to vote the union in, isn’t
that right, Sir?
A. To have the opportunity to vote for the
union. . . . Not to vote it in, necessarily, but to have
the chance to say yes or no.
Q. What do you tell them, then?
A. Same thing Mr. Smith said, and also it was the
opportunity they could vote either yes or no for the
union and if they had any questions, to read the card
before they signed it.
Asked to state which employees he personally asked to
sign cards, Clum recalled eight names: Crow, Ericson, Jen-
kins, Reynolds, Maxwell, Freaytag, Swallow, and Oates.
All eight of these employees testified while identifying the
cards they had signed, when they were received into evi-
dence. Four of them said they had no recollection as to what
conversation took place at the time. The other four testified
as follows:
James Crow
Q. Did he say anything about the purpose of the
card?
A. Not to me, no.
Q. Did he tell you what the card would be used for?
A. It would be used to help possible if we have
enough associates sign them we will be able to have an
election.
Q. That’s what Mr. Clum said to you?
A. Yes.
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Did he say anything else about the purpose of the
cards?
A. Not to my recollection.
Todd Reynolds
Q. When Mr. Baumgartner handed you the card did
you and he talk about it?
A. Briefly.
Q. Tell me what the two of you said.
A. He said he did say that the card would be con-
fidential. And he said that if enough green cards were
signed there would be an election.
Q. Did he say anything else?
A. No
Q. The card says that it would be ‘‘Used to secure
recognition.’’ What does that mean?
A. That if enough cards were signed that the union
could have an election. Be—exist, or at least have a
chance to exist after an election. That’s what I under-
stood it to mean.
Amy Freytag
I think I filled in part before I signed my name to
the bottom. Because it was like three or four days I was
asking questions about the card and questions about the
way it was worded on the back. And I was told it
didn’t mean anything it was just to get the election in.
Vicki Oates
A. She said that I was under no obligation to sign
the card, that it was not going to bring the union in.
It was just to give the union authorization to come to
DTR. . . . To give them the authorization. If enough
people signed the card to bring up a vote at DTR.
Q. But she specifically said the card would not work
to bring the union in without a vote?
A. Right, Right.
Q. Was [there] ever discussion about the confiden-
tiality of the card?
A. Yes, there was.
Q. What did you say and what did she say about
that?
A. That, she told me that it would be confidential.
That no one else would know that the card was signed.
That it was completely confidential.
The General Counsel called 57 employees as witnesses at
the hearing, each one to identify the union authorization card
he or she had signed. Apart from the testimony of the 4 em-
ployees mentioned above, those who Clum said he solicited,
no less than 27 others testified that when signing the cards
they were told the purpose was only to hold an election.
Many of them were specific in saying they were told that im-
mediate recognition was not an objective of the Union. A
number of them recalled being told that they would have a
right to decide later—at an election—whether or not they
wished to be represented by the Union vis-a-vis their em-
ployer. And practically all of them—even those who spoke
in favor of the General Counsel’s position—kept repeating
that the solicitor always said the cards would be held ‘‘con-
fidential.’’
On the entire record, considering especially a number of
very significant and very relevant factors, I credit the large
number of employee witnesses who testified clearly they
were told the cards they signed were not intended to prove
their immediate selection of the Union as their bargaining
agent. I therefore find that the Union never was authorized
to represent the unit employees in their relationship with the
Respondent.
The General Counsel rests primarily on the clear language
of the cards, which do say the signer authorizes the Union
to represent him or her as bargaining agent. There is also the
implied argument that in view of the unfair labor practices
committed by the Company, before and after the election, es-
pecially the substantial raises it gave the employees as a re-
ward for voting against the Union, it is to be expected that
the employees would lie at the hearing to favor the Respond-
ent now.
But there are three realities, undisputed on the record,
which absolutely support my credibility resolutions.
1. The four employee witnesses solicited by Clum, as he
himself admitted, contradicted him directly. That they were
telling the truth, and that Clum lied throughout the hearing,
is established as fact by Clum’s prehearing affidavit, sworn
to on March 9, 1990, 3 months before the hearing. It reads
as follows: ‘‘When I gave them the card to sign, I told them
they weren’t voting for the union, that they were just re-
questing the opportunity to vote the union in.’’
2. On the subject of what he told the employees when he
first met with the group, Smith’s testimony includes the fol-
lowing: ‘‘I made the statement that the cards were confiden-
tial. . . . I said that the cards were confidential and the com-
pany would not see the cards.’’
Almost everyone of the employees who signed cards and
appeared as witnesses said they were given exactly that as-
surance when their signatures were solicited. Surely Smith,
an experienced international representative of the UAW,
knew that an employer who is asked to recognize union as
a majority representative has a right to be shown proof that
a majority had authorized such a representative. When he as-
sured all employees that their cards would never be shown
to the Respondent, what he was saying was that he would
not go to the Company at all, but would seek an election in-
stead. His very use of the word ‘‘confidential,’’ which he
had passed around to all the employees, gives a lie to his as-
sertion at the hearing that his expressed purpose at the begin-
ning was to use the cards to demand recognition.
3. And finally, what Smith did when the cards were signed
removes all doubt as to the correctness of my credibility res-
olution here. As soon as he had all the cards in his hands—
the very day the last three were signed—he mailed them to
the Board’s Regional Office and ran to file the election peti-
tion. This is exactly what all the employees now say Smith
told them he was going to do. Smith never went near the
Company, much less ever demanded recognition.
Enough. I find that the record does not prove any violation
of Section 8(a)(5) by the Respondent.
On September 19, 1989, the first organizational meeting
took place, with 25 to 30 employees present. They started
signing union cards then and there. As shown above 57 cards
were signed and the Board election took place November 17.
Between September 19 and November 17 the Respondent’s
management representatives committed an unending number
853DTR INDUSTRIES
of unfair labor practices, all falling within the established
rule of prohibited conduct defined in Board decisional find-
ings over the years. Some of the major techniques used by
the Company to assure defeat of the Union at the much pub-
licized election are not factually disputed. Two of the unfair
labor practices committed were so broad and decisive of the
election—which the Union lost in consequence—that they
alone warrant a cease-and-desist order requiring the Re-
spondent not to hereafter violate the status ‘‘in any other
manner.’’
Early in October the Company installed suggestion boxes
in both the men’s and the women’s locker rooms, for the
publicized purpose of receiving opinions, comments, and
questions to be answered by management. At the same time
it also for the first time made an 800 number available for
employees to call the Company and express their comments
and concerns. This was the straight policy of the Respondent,
now that there was a union in the picture, to deal directly
with its employees in matters involving conditions of em-
ployment in order to bypass any collective-bargaining agent
they might be tempted to choose. If ever there was a direct
violation of Section 8(a)(1) of the Act this was it. And I so
find.
The Respondent kept records of the questions and com-
plaints that were raised by the employees through this new
system of communication. There were received in evidence
42 such documents, each showing the employees’ questions
and the Company’s full answers to him or her. They all
speak in one form or another of what the Board has long
called ‘‘condition of employment.’’ These documents, show-
ing how the Company was doing it, is best to satisfy eco-
nomic demands of its employees, were also publicized to all
the employees.
The Respondent’s defense to this unfair labor practice, so
blatant on its face, is that the employees always voiced their
complaints in the past and that therefore the Company did
not change anything with the advent of the Union. Its presi-
dent said the employees used to voice their grievances with
the group leaders, who worked with them.
The group leaders were made supervisors after the union
movement started, and the employees thereafter hesitated to
talk to them. The suggestion boxes were installed as sub-
stitutes for the leaders. The difference between an occasional
oral complaint by this or that employee, and the established
formal, much publicized system of bypassing the Union at
that critical time requires no comment from me. I find the
unfair labor practices as alleged the complaint. Reliance
Electric Co., 194 NLRB 44 (1971), and Middletown Hospital
Assn., 282 NLRB 541 (1986).
On November 24, 1989, 7 days after the majority of em-
ployees voted to reject the Union, Kubayashi, the president
of the Respondent and its top officers running this plant,
gathered all the employees at a meeting and announced a
very substantial raise in pay for all of them. This, of course,
was one of the ‘‘concerns’’—to use the language of the Re-
spondent’s documents—which the employees had frequently
voiced to management during the Union’s organization cam-
paign.
Martin Clum, a very active solicitor of the union cards,
testified that when, the very day before the election, he asked
Alan Haynes of the personnel department if the rumor of
raises going up to $9.50 an hour was correct, Haynes told
him that ‘‘they [the management people] were in wage meet-
ings at the time.’’ This was consistent with a statement by
the president, also recalled by Clum, made a few days ear-
lier. Clum testified he asked Kubayashi ‘‘if in fact the UAW
was not elected or voted in to DTR, if we could have his
word of honor that they would be improvements made by
DTR. And he in fact said that we would have to trust his
honor that things would improve.’’
I have no reason for not believing Clum’s clear statement,
at the hearing, that Kubayashi was speaking English, and not
through an interpreter.
Another employee, Timothy Korte, testified that in Octo-
ber Gred Lewandowski, the Company’s quality control su-
pervisor, got into a conversation with a number of employees
in the lunch room. ‘‘He [Lewandowski] asked us what we
would like to have in a contract if we voted the UAW in
on November 27.’’
Q. And what if anything do you say to him?
A. We told him we would like a wage increase,
some sort of pension plan and a seniority system.
Q. And did Lewandowski make any response to you
[to] what you said?
A. He said he had seen the package that management
was willing to offer us, and all three of those were in
the package.
There was like testimony by employee Scott Evans, who
recalled that Haynes, the personnel man, told him and other
rank-and-file employees, the day before the election: ‘‘Brad
[an employee] asked about a proposed wage policy that we
had been hearing about.’’
Q. And did Haynes have any response to that?
A. He said that, Yes, there was a proposed wage
package.
Q. Did he say what it was?
A. After Brad asked him another question, Brad
asked him if we were to vote no, when would we hear
about the wage package?
Q. And did Haynes have a answer to that?
A. Yes, He said that if we want to vote no in the
election, that after the votes were counted on Friday
afternoon, they would announce the wage package.
Again, from employee John Latimer: ‘‘He [Lewandowski]
said that he couldn’t reveal the benefit and wage package,
but a working day after the election, we would find out what
that package was.’’
Q. Did he say anything else?
A. He said it was better than what it was at the cur-
rent time. He said every one would be pleased with it
and no one would want to change a thing on it.
On this record, considering other closely related realities
of things that admittedly were said by management rep-
resentatives, I credit these witnesses. That the Respondent
was adamantly determined to convince the employees into
voting against the Union is very clearly shown. A number
of times the supervisors told the rank and file that if they
voted in favor of the Union, there would necessarily be sub-
stantial layoffs as a result. The employees were told that if
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Typical of the testimony of defense witnesses, which greatly de-
feats their credibility, is a statement by Joseph Brinkman, one of the
supervisory group leaders who passed the word about jobs being lost
in case of a union because of the pullout by Respondent customers.
In his attempt to avoid admitting he said plainly that Honda would
take its business away, he said: ‘‘I could have told them what I
thought Honda might do.’’ When a manager representative tells em-
ployees they would lose their jobs if they vote for a union, what
goes in the speaker’s mind is completely irrelevant.
the Company became obligated to bargain with the Union it
would immediately start producing a large stock of reserves
of their ordinary products, so that in case the Union should
call a strike, it would continue to service its customers for
at least 90 days during any strike action. If the Union did
not call a strike—that is, if the parties should come to amica-
ble adjustment—the Company would then use its built up re-
serve of products which would mean that for 90 days the
employees would be laid off because no production would be
necessary during such a period.
This was the Respondent’s way of telling the employees
that if they did not reject the Union, they would pay a heavy
price, no matter what followed. It was telling them that if the
Union called a strike, of course the employees would be out
of work, and of course suffer economically. But it also was
telling that if Union did not strike they would pay an eco-
nomic price anyway. In clear language the message was that
the employees would suffer economically if they did not fol-
low the employer’s request that they vote against the Union
in the Board election.
It was a violation of Section 8(a)(1) of the Act every time
a management representative made that statement to employ-
ees about the danger of layoffs if they choose to vote for the
Union, and I so find.2
There was another unfair labor practice committed a num-
ber of times by various officials of the Respondent. They
kept telling the employees that the union activity was endan-
gering the entire company business, as well as their own
jobs. Early in November Joe Brinkman, a supervisor, told
employee Clum: ‘‘Honda was very concerned with the union
activity that was going on within DTR. And that if the union
was to come in that Honda had another nonunion company
lined up that they would get their fuel filters and holes from.
And that this would, in fact, shut down the department that
I work in, the department I work in manufactures products
specifically for Honda.’’ ‘‘That we could count on at least,
at the very least, if Honda did not pull out the entire con-
tract, which they could very well do, and face us with an in-
definite lay off in our department that they would pull out
at least 50 percent of their contract to spread around with
some other companies.’’
Lewandowski said the same thing to Clum: ‘‘He expressed
his concern that Honda was also very concerned with what
was happening within DTR and relationship to the UAW and
they were considering pulling out their contract.’’ Robert
Falk, a supervisor group leader, told employee Korte: ‘‘He
said they [members of management] noted one company was
Toyota that would pull out 50 percent of their business if we
voted in the UAW. . . . He said if we felt compelled to pass
this information on to others.’’ Again, from the testimony of
employee Michelle Selby: ‘‘She [Jordan, the supervisor] told
us that if the union would come in, that we wouldn’t have
a job because Honda does not want parts from a union com-
pany. . . . And also, when work is slow, the Japanese will
always find work for us to do, but if we are union organized
we will be laid off.’’
Another employee, Donald Anderson, recalled Jordan say-
ing to the employees, again 3 weeks before the election,
‘‘that she hated to see the union come in because they’d
close the doors, and she didn’t want to lose her job.’’
Later that same day Jordan called McClain to the office,
where supervisor Brinkman was also present. ‘‘They also
told me that if we got the union in, that the Japanese would
probably go home because they just in time business would
be—they wouldn’t be able to just to run just in time any
more because they would have to build a stockpile on ac-
count of the union being in there for layoffs, and the Japa-
nese would probably go home and we would be bought
out.’’
In that same conversation McClain also recall Jordan
speaking as follows: ‘‘She also wanted to know if she could
have the names, if I was one of them, or anybody pressing
the union because she wanted to get it stopped; said that they
just started it to open the companies eyes and it was—had
gone far enough. . . . and they [Jordan and Brinkman] want-
ed to know who they could talk to to get it stopped.’’
Testifying in defense, Jordan denied having asked for the
names of the prounion people. She also said that ‘‘usually’’
(later changed to ‘‘always’’) it was the employees who
brought up the subject of the Union. But Jordan also said
that she did call employees into her office where, together
would supervise over Brinkman, they talked about the Union
with them ‘‘from 30 to 45 minutes.’’
Like others of the Respondent’s supervisors, Jordan was
not a credible witness. I do not believe either her denials, or
her major assertion that it was the employees who provoked
comments about the Union by management.
This questioning of employees as to the identity of the
union activists among the employees comment was of
course, again, a clear violation of Section 8(a)(1) of the Act
and I so find. I make similar finding with the respect to the
repeated statements by the supervisors that the Company
would go out of business if the employees persisted in their
prounion activities.
All this leads to the second of the two major unfair labor
practices committed before, as well as after—the Board elec-
tion. The first was the solicitation of grievances. The second
was ‘‘raises.’’ Admittedly the Company officials prepared a
schedule of raises for all the employees while the union cam-
paign was going on. They talked about it a great deal. Also,
according to some of its witnesses, a decision was made as
to [a] substantially defined amount much before the election.
The issue here is: did the Respondent tell the employees they
would get their raises only if they voted against the Union?
Did it withhold the raise after all the asserted studying and
analysis until after the election in order to let the employees
see that there was a reward for rejecting the Union?
Given the entire record—the many violations of Section
8(a)(1) already found, the employees’ testimony about man-
agement telling them the Company was adamantly opposed
to the Union, the other method used to satisfy the employ-
ees’ grievances, and, above all, the timing of the general
raises in fact given to all the employees, I find that the Re-
spondent’s agents told the employees, before the election,
they would get a raise if they rejected the Union, and that
855DTR INDUSTRIES
the actual granting of all those raises, immediately after the
election, was the Respondent’s way of assuring the employ-
ees their demands would always be satisfied so long as they
reject the concept of collective bargaining. Both acts were
clear unfair labor practices, as I so find.
President Kobayashi explained away the very significant
timing of the raises by saying that although the decision as
to the amount had been made long before, they were not
granted because he had to go to Japan for personal reasons
a few months before the election. The argument will not do.
If the Company really felt the need to increase the wages for
purely economic reasons, there was no reason why they
could not have put it in affect in his absence.
A final attempted justification for the timing of those
raises is also meaningless to me. Shorn of the excessive ver-
biage repeated by the defense witnesses, it all boils down to
the simple assertion that giving raises is good for business.
More precisely, the defense statement on the record is that
raises are, and were given: (1) to make the Company com-
petitive; (2) to adjust to living costs; (3) to be in a position
to hire new employees; and (4) to satisfy complaints by em-
ployees. That giving raises accomplishes these results cannot
be denied. It was not necessary, to prove all those points, for
the Respondent to have called as a witness Robert Hall, a
professor of operations management in the Indiana Univer-
sity School of Business. He knew nothing of the facts of this
case, or its particular business operations. He simply spoke
generally of how a business should be run if it is to succeed.
In the process he specified that giving raises was a good
thing to do.
The witnesses also spoke of a business principle called
Kaizen, apparently a Japanese method of doing business.
They also referred to it as the Respondent’s ‘‘philosophy.’’
What all this ignored is the law of the land where this com-
pany is doing business. Merely because the owner of a com-
mercial operation in Ohio comes from a foreign country,
does not permit it to ignore the National Labor Relations
Act, and the very decisions of the National Labor Relations
Board, sustained in the highest courts of the land, as to what
is permitted and what is prohibited in matters of labor rela-
tions. The Respondent violated American law and it must
therefore be ordered to stop doing that. By promising to give
raises if its employees reject the statutory guaranteed right to
be represented by Union, and by giving them substantial
raises for having agreed to do so, the Respondent violated
and is clearly violating the National Labor Relations Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operation of its busi-
ness, have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and the
tend to lead to labor disputes burden obstructing and ob-
structing commerce.
REMEDY
It having been found that the Respondent committed a
number of violations of Section 8(a)(1) of the Act it must
be ordered to cease and desist from again committing such
unfair labor practices. In the light of the severity of its past
violations of the statutory provision it must also be ordered
not to violate the statute in any other manner in the future.
The most effective unfair labor practice was, of course, the
large raises it promised the employees if they voted against
the Union and then actually gave them for having complied
with the Respondent’s demand that they reject collective bar-
gaining. Since the effect of these raises cannot be removed
from the minds of the employees, it is to be expected that
in the event the Union should tomorrow again go to a Board
election, the Company will simply promise another raise and
again give it to the employees. Since the Company and the
employees know that the raises cannot be taken away as part
of the Board proceeding, this sort of bypassing of the statute
by the Respondent will go on and on.
The situation therefore calls for a special remedial order.
The Respondent must be ordered to reimburse the United
States Government for all costs incurred in connection with
this proceeding from the very day the charge was filed to the
final close of the case.
CONCLUSIONS OF LAW
By soliciting grievances from employees in order to by-
pass any collective-bargaining agent they might choose, by
yielding to individual employee demands and making con-
cessions to their demands during a union organization cam-
paign, by telling employees they would have improved con-
ditions of employment if they rejected any union of their;
choice, by telling employees there would be substantial lay-
offs if they voted for union representation, by telling employ-
ees the owners of the business would abandon it if they
chose a union, with a result that the employees would lose
their jobs, by asking employees for the names of the
prounion activists in the work component, and by giving
raises to employees as promised rewards for voting against
union representation, the Respondent has violated and is vio-
lating Section 8(a)(1) of the statute.
The aforesaid unfair labor practices are unfair labor prac-
tices within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]