Fabricators, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1967

168 N.L.R.B. 140 (N.L.R.B. 1967)

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fabricators , Incorporated and Assortment Sheet
Metal Workers Local Union No . 383, affiliated
with the Sheet Metal Workers Association,
AFL-CIO. Cases 19-CA-3303 and 19-RC-3822
November 8, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 23, 1967, Trial Examiner Louis S. Pen-
field issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in certain unfair labor practices in violation of Sec-
tion 8 (a)(1) of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not en-
gaged in certain other unfair labor practices in viola-
tion of Section 8(a)(1) and (5) of the Act, and
recommended that such allegations of the complaint
be dismissed. Thereafter, the General Counsel and
the Charging Party (hereinafter also referred to as
the Union) filed exceptions to the Trial Examiner's
Decision and supporting briefs, and the Respondent
filed cross-exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-
exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, ex-
cept as modified herein.
As more fully set forth by the Trial Examiner, on
December 3, 1965, the Union, which had secured
signed authorization cards from a majority of the
employees then in the appropriate unit , asked the
Respondent for recognition as exclusive bargaining
representative, and offered to submit the cards to a
neutral third party for verification of its majority
status. The Union filed a petition for an election the
same day. Respondent, on or about December 10,
1965, expressed its doubt as to the Union's majori-
ty, and the appropriateness of the requested unit,
and declined recognition pending the outcome of
the Union's election petition. The Union lost the
election conducted on January 19, 1966. OnJanua-
ry 21, 1966, the Union filed the present charges
against the Respondent, and on January 25, 1966,
filed timely objections to the conduct of the elec-
tion.
1. The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) of the Act by
the following conduct:
During the Union's organizing campaign, and be-
fore the Union requested recognition, General
Manager Schlamp interrogated several employees
regarding their knowledge of union activities. He
also asked two of them to report any information
concerning union activity which they might obtain
in the future; he told a third employee he had
spoken to the first two, that employees did not need
a union, and that Respondent did not want one.
After the Union's demand, Respondent's President
Jagoe interrogated another employee as to whether
employees discussed the Union, what they thought
about the Union, and what she thought about it.
Within a week after Respondent's refusal to recog-
nize the Union, Foreman Salemsaas told an em-
ployee working under him that she "should get
over" to the other employees that there would be
layoffs if the plant were organized. Salemsaas asked
another employee' during this period whether she
had been approached by the Union, how she knew
about a union meeting, and for the name of the
Union's spokeman.
And on the day before the aforementioned elec-
tion, Respondent's president stated to a group of
employees that he believed there was a
"troublemaker" in their midst, and that if the identi-
ty of this troublemaker were discovered,
"something would be done about it" and such
"trouble" would be eliminated.
2. The Trial Examiner found that the Union
represented a majority of Respondent's employees
in an appropriate unit when, on December 3, it de-
manded recognition, offered to prove its majority
status, and requested bargaining. He concluded,
however, that Respondent did not in bad faith
refuse to recognize the Union when it subsequently
insisted upon a Board election. Accordingly, he
recommended dismissal of the Section 8(a)(5) al-
legation of the complaint. The Charging Party and
General Counsel have excepted to the finding and
recommendation, and we find merit in the excep-
tions.
The Board has long held that an employer may
decline to recognize a labor organization and await
the holding of a Board election if it is motivated by
a good-faith doubt as to the Union's majority status.
Where, however, the Employer's refusal is
motivated by a rejection of the collective-bargaining
I The Trial Examiner inadvertently refers to the employee as Faye
Manser in the latter part of his Decision , but the transcript and other
reference to this interrogation in the Decision show that Salemsaas inter-
rogated Beatrice Gove at this time
168 NLRB No. 21
FABRICATORS, INC. 141
principle or a desire to gain time within which to un-
dermine the Union and dissipate its majority, the
Employer's refusal is found violative of Section
8(a)(5) and (1) of the Act.2
In meeting with a group of employees for the pur-
pose of discussing employee grievances, the day be-
fore the election, President Jagoe threatened that if
the "troublemaker" were identified the trouble
would be eliminated. And a department foreman
made a threat of layoffs if the Union came in, with
an admonition to an employee to spread this warn-
ing, which the employee obeyed. In our judgment,
these threats of serious reprisals plainly reflects
Respondent's attitude toward its employees'
unionization.3 These unfair labor practices, coupled
with unlawful interrogations by Jagoe and other
responsible company representatives, occurring
both before4 and after Respondent's refusal to ex-
tend' recognition, clearly support an inference of
bad faith on the part of Respondent. We therefore
find that the record evidence establishes Respond-
ent's unlawful motivation, and we conclude that
on and after December 10, 1965, Respondent
refused to bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
In any event, an order directing the Respondent
to bargain with the Union, upon request, is necessa-
ry to remedy the effects of its other unfair labor
practices. The record establishes that the Union
had a majority when the Respondent began its
course of unfair labor practices directed at destroy-
ing this support. The subsequent diminution of sup-
port, as revealed by the Union's loss in the election,
can only be attributed to the Respondent's unlawful
conduct.5 Therefore, we shall order the Respondent
to bargain, upon request, with the Union both to
remedy its violation of Section 8(a)(5) and its viola-
tions of Section 8(a)(1) of the Act.
ORDER
wages, hours, and other terms and conditions of em-
ployment with Assortment Sheet Metal Workers
Local Union No. 383, affiliated with the Sheet
Metal Workers Association, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees
employed by the Employer in its plants on
South Hudson and South Dawson Streets,
Seattle, Washington, including quality control
employees and production control employees,
but excluding sales employees, purchasing em-
ployees, office clerical employees, engineering
and planning employees, professional em-
ployees, guards, and supervisors as defined in
the Act."
2. Renumber paragraphs 2(a) and 2(b) as para-
graphs 2(b) and 2(c), and insert the following as
paragraph 2(a):
"(a) Upon request, bargain with the above-
named labor organization as the exclusive represent-
ative of all the employees in the aforesaid ap-
propriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement."
3. Delete from renumbered paragraph 2(c) of the
Trial Examiner's Recommended Order that part
thereof which reads "to be furnished" and sub-
stitute therefor "on forms provided. . . . "
4. In the Appendix to the Trial Examiner's
Recommended Order entitled "Notice to All Em-
ployees," prior to the paragraph beginning with the
words "WE WILL NOT unlawfully interrogate
... insert the following paragraphs:
WE WILL NOT refuse to bargain collectively
with Assortment Sheet Metal Workers Local
Union No. 383, affiliated with the Sheet Metal
Workers Association, AFL-CIO, as the exclu-
sive representative of the employees in the ap-
propriate bargaining unit. The appropriate unit
is:Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Fabricators, Incor-
porated, Seattle, Washington, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Renumber paragraphs 1(a) and 1(b) as para-
graphs 1(b) and 1(c) and insert the following as
paragraph I (a):
"(a) Refusing to bargain collectively concerning
1 Joy Silk Mills, Inc, 85 NLRB 1263, enfd as modified on other
grounds 185 F -2d 732(C A D C ),cert. denied 341 US. 914
3 Cf Galbreath Bakery, Inc, 163 NLRB 408, in 7, where we distin-
guished a number of cases reaching a contrary result because the conduct
involved was isolated or otherwise insufficient to vitiate the employer's
All production and maintenance em-
ployees employed by the Employer in its
plants on South Hudson and South
Dawson Streets, Seattle, Washington, in-
cluding quality control employees and
production control employees, but exclud-
ing sales employees, purchasing em-
ployees, office clerical employees, en-
gineering and planning employees, profes-
sional employees, guards, and supervisors
as defined in the Act.
WE WILL bargain, upon request, with the
good faith . See, e g , Harvard Coated Products Co , 156 NLRB 162;
Hammond & Irving, Inc , 154 NLRB 1071, Clermont's, Inc , 154 N LRB
1397
4 United Mineral & Chemical Corp , 155 NLRB 1390 , 1394, fn. 9
1 Bryant Chucking Grinder Company, 160 N LRB 1526
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above -named Union as the exclusive bargain-
ing representative of all employees in the unit
described above , with respect to wages, hours,
and other terms and conditions of employment,
and, if an understanding is reached , embody
such understanding in a signed agreement.
IT IS HEREBY FURTHERED ORDERED that the elec-
tion heretofore held in Case 19-RC-3822, be, and
it hereby is, set aside.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Trial Examiner: This proceeding,
with all parties represented, was heard before me in Seat-
tle, Washington, on January 24, 25, and 26, 1967, upon
a complaint of the General Counsel and answer of
Fabricators, Incorporated, herein called Respondent.
The complaint proceeding was consolidated with a
representation proceeding with respect to issues raised by
objections to the conduct of an election conducted in the
representation case.' The issues litigated were whether
Respondent violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, as amended, herein called the
Act, and whether or not certain objections to the conduct
of the election not ruled upon by the Regional Director
raised substantial and material issues with respect to con-
duct affecting the results of the election.
Upon the entire record, including consideration of
briefs filed by the General Counsel and Respondent, and
upon my observation of the witnesses, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Washington corporation which is en-
gaged in business at Seattle, Washington, in the manufac-
ture and processing of parts for aircraft and other indus-
tries. During the year ending December 31, 1965,
Respondent purchased goods for use in its business
valued at more than $50,000 which were shipped to it
directly from points outside the State of Washington, and
during the same period it sold goods and services valued
in excess of $50,000 to Boeing Company, a firm which in
turn annually produces and sells products valued in ex-
cess of $50,000 directly to points outside the State of
Washington. I find the business of Respondent affects
commerce within the meaning of the Act, and the asser-
tion of jurisdiction by the Board to be appropriate.
II. THE LABOR ORGANIZATION INVOLVED
Assortment Sheet Metal Workers Local Union No.
383, affiliated with the Sheet Metal Workers Association,
AFL-CIO, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
The complaint issued on March 31, 1966, and is based upon a charge
and an amended charge filed on January 21, 1966, and March 29, 1966,
respectively Copies of the complaint, the charge, and the amended
charge have been duly served on Respondent
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
In the complaint case , the General Counsel alleges the
Union to be the statutory representative of Respondent's
employees , and further alleges that at all times since
December 10, 1965, Respondent unlawfully refused to
accord it recognition as such representative by engaging
in a course of conduct calculated to dissipate union sup-
port and indicating rejection of the collective-bargaining
principle , thereby refusing to bargain collectively in good
faith as required by the statute . Respondent denies that
the Union at any time became the statutory representa-
tive of its employees , denies the appropriate character of
the unit alleged , and denies that it engaged in an unlawful
course of conduct undermining the majority , or that it
acted in derogation of the collective -bargaining principle.
The Union commenced organizational efforts among
the Respondent 's employees in November of 1965. On
December 3, 1965, the Union requested recognition of
Respondent as the statutory representative of its em-
ployees, and on the same date it filed a representation
proceeding in 19-RC-3822. On or about December 10,
1965, under circumstances to be described more fully
below , Respondent declined to accord the Union the
recognition requested . Thereafter, a hearing was held in
the representation case on December 21, 1965, and a
Decision and Direction of Election was issued by the Re-
gional Director on January 6, 1966 . An election was
thereafter conducted on January 19, 1966, in which a
majority of the employees voted against union represen-
tation. Timely objections to the conduct of the election
were filed , and on March 29, 1966, the Regional Director
issued a Supplemental Decision and Direction whereby
he overruled one objection , and directed that the issues
raised by five objections be determined after a formal
hearing in a proceeding to be consolidated with a hearing
on the complaint simultaneously issued.2
This consolidated proceeding involves a plant employ-
ing between 120 and 130 persons . Respondent's pre-
sident is Allison N. Jagoe. Its general manager is Kirk
Schlamp . Marlyn Salemsaas is a foreman. The superviso-
ry status of each of the foregoing is conceded, but dispute
exists as to the responsibility of Respondent for the con-
duct of an employee named Robert Boettinger, alleged by
the General Counsel to be Respondent ' s "agent or
representative ." This issue will be discussed below.
B. The Demand, the Refusal, and the Appropriate Unit
On December 3, 1965, the Union addressed a letter to
Respondent advising it that the Union represented a
majority of its employees in an alleged appropriate unit,
demanding that Respondent recognize it as the statutory
representative of such employees, and requesting a meet-
ing for the purpose of negotiating a collective-bargaining
agreement . In addition to the foregoing, the Union of-
2 The Regional Director found statements in a letter to employees
and statements to the employees made in a speech to be privileged within
the meaning of Section 8(c) of the Act Alleged granting of wage increases,
threats of reprisals and promises of benefits , sponsorship of grievance
committee, and interrogation of employees as to their union activity, how-
ever , were found to raise issues regarding the election which were best
resolved after hearing. With the exception of the wage increases which
were not alleged in the complaint or litigated at the hearing, the objections
are coextensive with allegations of the complaint
FABRICATORS, INC.
fered to make its authorization cards available to a neutral
person for the purpose of verifying its majority status. On
the same day the Union filed its petition in Case
19-RC-3822. Respondent's attorney called the Union on
December 3, 1965, to advise it that Respondent could
not meet as requested on Monday, December 6, but
would agree to meet on Friday, December 10. In this ini-
tial response the attorney made no representation as to
Respondent's position regarding recognition. Following
receipt of this request for recognition, Respondent en-
gaged the services of Washington Metal Trades, Inc., a
labor relations association, to represent it for collective-
bargaining purposes. Washington Metal Trades advised
the Union that thereafter it would undertake all future
dealings with the Union on behalf of Respondent.
C. The Majority
143
The General Counsel alleges, and Respondent denies,
that on December 10, 1965, the date upon which I have
found above that Respondent refused to accord the
Union recognition as the statutory representative of its
employees, the Union represented a majority of the em-
ployees in the appropriate unit.
On December 10, 1965, there were 125 persons in the
appropriate unit whose names were on Respondent's
payroll.3
In the course of its organizational campaign, the Union
circulated, and solicited Respondent's employees, to sign
cards with the following legend:
Although a minor dispute exists as to the precise timing SHEET METAL WORKERS ' INTERNATIONAL
of the notification , at least by December 10, either ASSOCIATION
Respondent or Washington Metal Trades had advised the AFFILIATED WITH AFL-CIO
Union that despite the Union 's expressed willingness to AUTHORIZATION FOR REPRESENTATION
agree to a card check, Respondent questioned its majority
and questioned the propriety of the unit alleged , and that
inasmuch as a petition for an election had been filed,
Respondent would withhold recognition until the
question concerning representation had been resolved by
the Board.
Upon the basis of the foregoing , I find the Union to
have requested recognition as the statutory representa-
tive of Respondent 's employees on December 3, 1965,
that its demand was a continuing one, and that on
December 10, 1965, Respondent declined to accord it
recognition pending resolution by the Board of unit and
majority status issues.
At the representation hearing, the Union urged a unit
limited to Respondent's production and maintenance em-
ployees. Respondent contended that the unit should also
include its machine shop employees . Respondent
disputed the inclusion of certain fringe groups specifically
those classified as quality control employees and produc-
tion control employees . The Regional Director ruled the
machine shop and the fringe groups each to be properly
a part of the appropriate unit . An election was directed on
January 6, 1966, among employees in the following unit:
All production and maintenance employees em-
ployed by the Employer in its plants on South Hud-
son and South Dawson Streets , Seattle, Washington,
including quality control employees and production
control employees , but excluding sales employees,
purchasing employees , office clerical employees, en-
gineering and planning employees, professional em-
ployees, guards , and supervisors as defined in the
Act.
In the present proceeding, Respondent undertakes to
preserve its original unit position. but offers no further
evidence in support thereof. Accordingly, I find that the
above-described unit heretofore found as appropriate by
the Regional Director in the representation case to be ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
3 The above figure was determined from an examination of G. C Exh.
16, a list of Respondent 's unit employees between December I and 15
The list contained a total of 135 names I struck from the list the names of
the following employees whose employment appears to have terminated
between December I and 10, 1965 Wallace Birdwell, Kathleen Boss,
Winifred Garrick, Marion Henneke, William F Hudnall , Lovell D
Knoblauch , Garry L. Marsh, Harold W Peterson , and Susan I Tharp
The name of one other employee, Bob J Hansen , was also deleted since
I, the undersigned , hereby authorize the SHEET
METAL WORKERS INTERNATIONAL AS-
SOCIATION, or any affiliated Local Union thereof,
to represent me for purposes of Collective Bargain-
ing, and in my behalf , to negotiate and conclude all
agreements as to hours of labor, wages, and other
conditions of employment.
Name Tel. No.
Address City
Employed by Shift
Classification Wage Rate
Date (Signed)
General Counsel introduced into the record 63
authorization cards with the stipulation that each card
had been signed by an employee of Respondent, that the
signatures thereon had been compared with company
records, and that each card appeared to have been ex-
ecuted by the employee named thereon. It was further
stipulated that the date stamp on the back of each card
represented the date upon which such card was delivered
to the Board's Regional Office in Seattle by the Union.
Each of the 63 cards authenticated pursuant to the
foregoing stipulation bears a date in either November
1965 or a date in December, prior to December 10, 1965.
Absent evidence to the contrary, it is presumed, and I
-find, that each of the 63 cards was dated and signed on the
date appearing thereon.
In addition to the 63 cards, the General Counsel un-
dertook to authenticate 13 additional cards by testimony.
Twelve witnesses authenticated their signatures. The
signature of employee Ted Stuart was authenticated by
another employee in whose presence Stuart had signed.
One card was dated subsequent to December 10, 1965,
and one other was signed by an employee who quit before
that date. It was established that each of the remaining I I
cards was signed on a date on or before December 10,
1965.4 I find these I I cards to be sufficiently authen-
it appeared that he was first employed on December 13, 1965.
The card of Beatrice Gove was dated on December 12, 1965 The
payroll records show Wallace Birdwell to have terminated his employ-
ment prior to December 10, 1965 . Both cards will be disregarded in deter-
mining the Union's majority The remaining I I include the following
names West Kelley, Ira B Moore , Jr , Gertrude Caffell, Malone Bolton,
Ted Stuart, Ellen Jimenez, Larry Oldham, Jacob Knaus, Marion Ruggles,
Dolores Anderson, and Russel Ellis
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticated and that each bears the signature of an employee
of Respondent whose name appears on Respondent's
payroll on December 10, 1965.
While Respondent does not contest the proposition
that there are a total of 74 authenticated authorization
cards bearing the names of persons on the December 10,
1965, payroll, it questions the propriety of the use of
these cards generally to establish the Union's majority
and attacks the validity of certain of the cards specifi-
cally. Respondent's general challenge to the use of the
cards is based on testimony of employee witnesses which
Respondent claims supports an inference that all cards
were obtained by misrepresentations, and thus cannot
reasonably be regarded as showing that the signers
thereof designated the Union as their representative. Its
specific attack is limited to 10 cards alleged not to have
come into the Union's possession until after December
10, 1965, others allegedly obtained by representations
that initiation fees would be waived, and 9 cards alleged
to be invalid because of specific misrepresentations as to
purpose. If all cards specifically attacked be found in-
valid, the Union would not have a majority.
It is undisputed that the organizational campaign was
carried on by both paid union representatives and by a
plant committee of employees each one of whom solicited
signatures of employees to the cards, and discussed the
Union and its various objectives with the employees so-
licited. John Lubetich, International organizer for the
Union, was in charge of the organizational drive. He
testified, without contradiction, that during the course of
the drive he spoke individually and collectively with em-
ployees or groups of employees explaining to them, when
urging that they sign authorization cards, that in order to
obtain a Board election it was necessary to have a certain
number of cards, and that if 51 percent or more of the em-
ployees signed such cards prior to the election, it might be
possible to get management to bargain without an elec-
tion . He testified that during the campaign his meetings
with employees took place almost daily and that, although
it was his opinion that the language on the card itself was
abundantly clear, he undertook continually to explain the
dual purposes for which the cards might be used. Lu-
betich stated further that all cards which were in his pos-
session at the time the petition was filed on December 3,
1965, were at that time submitted to the Board's Regional
Office, and that thereafter he undertook to submit to the
Board such additional cards "as fast as [he] got them."
As to 10 of the 63 authenticated cards Respondent
urges that despite the fact that each bears a date showing-
it to have been signed before December 10, 1965, each
also bears a Regional Office date stamp showing that it
had not been delivered to the Regional Office until
December 13 or 15. It is argued that since Lubetich
represents that he turned over signed cards to the Re-
gional Office as soon as possible, it must be assumed that
these cards were not in possession of the Union on
December 10, and thus cannot be counted to determine
the Union's majority. Union Representative Lubetich
testified that while he personally solicited many cards,
others were solicited by employees on the "in-plant com-
mittee." While nothing in the record affirmatively
establishes the exact time that any card came into posses-
sion of Lubetich or any other union representative,
neither is it affirmatively shown that any card was not
received by a union representative on the date which ap-
pears thereon. Lubetich testified only that it was true that
as to "most of them, as fast as [he] got them [he] turned
them over to the Labor Board, and in some cases this
would occur on the same day." Lubetich was not asked,
however, and no evidence was adduced to show, the tim-
ing of the turnover to the Board of any particular card, in-
cluding the 10 to which Respondent refers. Respondent,
in effect, asks that I infer from the Regional Office date
stamp alone that the employees signing cards dated earli-
er had not thereby designated the Union because
presumably such cards had not come into the Union's
possession before December 10. 1 would not necessarily
regard possession of a card by a union on a certain date as
an essential element to establish majority if it could be
proven that the card actually had been signed by the em-
ployee on that date. In the instant case, even if we were
to assume possession by the Union to be a requirement to
prove majority, I would nevertheless find such require-
ment to have been fulfilled. Lodging the card with the
Board is not an essential to establish majority, and the
Regional Office date stamp has little probative value for
such purpose. Absent evidence to the contrary, it is a fair
assumption that the 10 cards in question were both signed
and delivered to the solicitor on the dates which they
bear. The solicitors must be regarded as union agents, and
delivery to them as possession by the Union. The fact
that "most of them" were turned over to the Board by the
paid representative soon after he got them shows neither
when the solicitor got the card, or that any specific card
was not held for a longer period and its delivery to the Re-
gional Office delayed. Upon the basis of the foregoing, I
reject Respondent's attack on the validity of these 10
cards, and find that each should be counted in computing
the Union's majority.
Respondent specifically attacks the validity of some
cards on the ground that the solicitors had represented
that, if such cards were signed before the Union was
selected as the representative, initiation fees would be
waived. Unquestionably, representations of such nature
were made in some instances, although only three or four
employees testified along such lines and it would not ap-
pear that the waiver representations were a broadly based
aspect of the organizational drive. Even if we assume to
the contrary, however, the Board's present view is that
general representations of this nature will not invalidate
cards for majority purposes. If an employer has refused
to bargain in good faith with a union , the Board's rationale
as to counting cards to determine its majority is expressed
in the following:
If, as the court says, the cards are now the equivalent
of votes, it was Respondent who made them so. If we
should now refuse to recognize the Union's majority
status because the Respondent destroyed the basis
for a fair election, we would be bestowing on the guil-
ty party the very advantage which it hoped to gain
when it committed its unfair labor practices. Since
the Union was unlawfully deprived of a chance to
establish its majority through a Board-conducted
election, we believe that equity requires that the
validity of the authorization cards should now be
judged by the principles which would have been ap-
plied if the Union had won the election, and if the
Respondent was now seeking to overturn it on the
ground that the waiver of initiation fees had inter-
fered with the election.5
5 Gorbea , Perez & Morell , 142 NLRB 475, 477
FABRICATORS, INC. 145
With respect to an attack on an election on such grounds,
very recently the Board has had occasion to reconsider a
line of cases which had indicated that in certain circum-
stances waiver of initiation fees might serve to invalidate
an' election . In Dit-Mco, Inc., 163 NLRB 1019, the
Board reversed its position in this regard and overruled
objections to an election, holding that waivers or provi-
sional waivers of union initiation fees, whether condi-
tioned upon the result of an election or not , had no im-
proper effect on the freedom of choice of the electorate
and did not constitute a basis for setting aside an election.
If such be the basic principle , then all cards obtained
herein must be counted to determine the majority for
reasons set forth in the quotation above. Accordingly,
Respondent's attack on any card premised on an asser-
tion of initiation waiver must be rejected.
In considering Respondent 's general attack on the use
of the cards, it must be noted first that the legend on the
card itself spells out a clear and unambiguous authoriza-
tion for the Union to represent the signer for collective-
bargaining purposes. All 20 of the employee witnesses
who testified impressed me as not only literate but also
reasonably well educated. I assume that these witnesses
constituted a representative cross section of the unit em-
ployees as a whole. In most instances when asked if they
had read and understood the language on the authoriza-
tion card they answered in the affirmative. Respondent
made diligent efforts to draw from both his own and the
General Counsel 's witnesses admissions as to representa-
tions by the solicitors. As will be noted more fully below,
some witnesses state that solicitors represented that sign-
ing was for the purpose of obtaining an election or to
enable the employees to get more information. In no in-
stance, however, did any witness testify that the solicitor
represented such end as the sole purpose of signing.
Since Respondent has singled out nine employees as
representing not the only but the most obvious victims of
the alleged misrepresentations , a consideration of this
testimony should not only resolve their individual cases
but in addition should be indicative of the circumstances
surrounding the solicitation generally and provide a basis
for evaluating Respondent 's claims.
Ira B. Moore, Jr., testified that he read the card and un-
derstood it. On cross-examination by Respondent he
testified that he was told that there would be an election
and that a purpose, but not the only purpose, of the card
was to get an election.
Gertrude Caffell testified that she read the card, that
she was told she wouldn 't have to pay an initiation fee if
she signed it, and that the Union needed a certain number
of cards if it was to have an election.
Larry Oldham testified that he understood the card
when he read it, but that he was also told that its purpose
was "so that the union could contact us" and "if there
were enough cards ... could demand an election."
Jacob A. Knaus testified that he was told that the pur-
pose of the card was "so that he could receive informa-
tion on the union ." Knaus testified that despite signing
the card he had not read it.
Marion Ruggles testified that the solicitor had told her
that by signing the card she would be able to attend union
meetings and hear what the Union had to offer. She
testified that she did not understand that by signing the
card she was authorizing the Union to represent her.
Lorene Barnhouse testified that she was told by the so-
licitor that the card meant that she wanted to be
represented by the Union. She further testified that she
believed there would be an election and that this in-
fluenced her signing the card.
Dorothy Morisaki testified that the solicitor advised
her that there would be an election . However , she further
testified that no one told her that this was the only pur-
pose for the card, and that she understood when she
signed it that she was authorizing the Union to represent
her.
Mirek Pomierny testified that he was told that if he
signed the card there would possibly be an election. He
further testified that at the time of signing he wanted to be
represented by the Union.
Wilmot Bellamy testified that he was told the purpose
of the card was to determine the number of people in-
terested in obtaining information about the Union and
that , if a certain percentage signed , there might be an elec-
tion.
It is noteworthy that not one testified that he was told
to disregard the card or that it had a sole purpose contrary
to the legend on it . At the most these witnesses indicate
that they paid scant attention to the legend or assumed
that something further would happen before the Union
took over as the bargaining representative.
In determining the validity of authorization cards, the
Board and the courts have uniformly held the wording on
the card itself to be of paramount importance . Where a
card is clear on its face as designating a union as the bar-
gaining agent, it is not to be regarded as subject to parol
impeachment merely because the employee was told that
the purpose of the card was also to secure an election.
Thus, if the card itself effectively advises the employee
that it has a purpose to designate the union as his bargain-
ing agent, its validity will be subject to attack only where
the solicitor making the oral inducement expressly states
the only purpose to be other than what the card states.6
The clear and unambiguous language on the face of the
card in the instant case should not lightly be disregarded
as a statement of its basic purpose . Any representation
that the card also had a purpose of enabling the employee
to get additional information or to get an election is no
more than a true statement of a concurrent purpose and
is not a misrepresentation. While it may be true , as some
testified, that each did not fully understand all the ramifi-
cations that might follow his signing a card , this did not
come about because they were misinformed by the solici-
tors. In the circumstances here disclosed , to find that an
employee did not understand that by signing the clear and
unambiguously worded card he was designating the
Union as his representative would be either to downgrade
his apparent intelligence_ or to charge him with irresponsi-
bility. Upon the basis of the foregoing, I find that Re-
spondent has not established that any one of the nine
cards it specifically attacks is invalid or that the cards
generally were obtained in circumstances that warrant
disregarding their validity for purposes of determining
the Union's majority. Accordingly, I find that it has not
been established that any of the 63 cards authenticated by
stipulation or any of the 11 additional cards authenticated
at the hearing is invalid for a purpose of designating the
6 Cumberland Shoe Corporation , 144 NLRB 1268 , Amalgamated N L R B , 365 F 2d 898, The Shelby Manufacturing Company, 155
Clothing Workers of America , AFL-CIO [Sagamore Shirt Company ] v. NLRB 464, 466
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union as the collective-bargaining representative of the
signer.
Having heretofore found that on December 10, 1965,
there was a total of 125 employees in the appropriate unit,
that 74 of such employees had signed valid authorization
cards dated on or before December 10, 1965, 1 further
find that as of that date a majority of the employees in
such unit had designated the Union as their collective-
bargaining representative within the meaning of Section
9(a) of the Act.
D. The Alleged Unlawful Acts of Interference,
Restraint , and Coercion
The General Counsel adduced evidence concerning
conduct of Respondent occurring both prior to and after
Respondent's refusal to recognize the Union on
December 10, 1965.
Included among the alleged acts of interference occur-
ring prior to December 10, 1965, are the following:
1. In mid-November, Kirk Schlamp, Respondent's
general manager, is alleged to have questioned two of
Respondent's oldest employees, Anne Kennedy and Ger-
trude Caffell about the Union. According to Kennedy,
Schlamp asked her if she had heard about a union coming
in. She replied that nobody had heard anything about any
union , upon which Schlamp is alleged to have said, "We
being the two oldest girls employed here, that he hoped
that we would report any union activities to the manage-
ment ." Caffell's testimony corroborates that of Kennedy
with regard to this incident. I credit the consistent
testimony of Kennedy and Caffell and find that the con-
versation occurred substantially as related above.
2. Susan Sphorer testified that Kirk Schlamp called
her into his office sometime in November, for the purpose
of discussing a problem which she was having with one of
her fellow employees. She states that during the course of
the conversation he asked her if she had heard anything
about the Union. She states that Schlamp then went on to
advise her that he had talked to Kennedy and Caffell
about the Union, to which Sphorer replied that they had
said nothing to her about it. Schlamp is then alleged to
have said that Respondent "didn't want the union there
and they didn't need it." Schlamp remembers calling
Sphorer to his office about this time but he was unable to
recall any discussion about the Union. I am satisfied that
Sphorer's recollection in this connection is the more relia-
ble and find that Schlamp made the remarks about the
Union in substantially the manner set forth above.
3. Anne Kennedy testified that early in December a
conversation occurred between her and President Jagoe
during the course of which Jagoe asked her if any of the
girls had discussed the Union with her. Kennedy replied
that they had not. After this Kennedy states that Jagoe
asked her what the girls thought about the Union. Ken-
nedy replied that she could not tell him since they had not
discussed it with her, whereupon he asked her what she
thought about it. To this Kennedy states she responded
by telling Jagoe "that when a business got as big as his he
could expect the union to try to get in." Jagoe does not
deny that such a conversation may have taken place, but
he states that he does not recall it. Under the circum-
stances, I find that the converstation took place in sub-
stantially the manner to which Kennedy credibly
testified.7
Following the December 10, 1965, refusal to recognize
the Union, the Respondent is alleged to have engaged in
other conduct claimed to interfere with employee rights
and to indicate Respondent's rejection of the collective-
bargaining principle. The following incidents are in-
cluded:
1. Anne Kennedy testified that on or about December
16, 1965, Foreman Salemsaas told her that she "should
get it over to the girls that if the union comes in there
would be layoffs because Mr. Jagoe was not getting
enough money for the passenger service units, and he
could not afford to pay the union wage and possibly the
contractor would go to a competitor." Kennedy reports
that she did pass on information of this nature to the other
girls. How widely she circulated such information is not
shown, however. Salemsaas admits having a conversation
with Kennedy concerning the Union, but in response to
a direct question as to whether he told her that layoffs
might occur he responded, "I don't know, I'm not sure I
said that." In response to another direct question as to
whether he asked her "to get across to the girls that there
would be layoffs," he responded, "I asked to see what she
could find out about the union." In view of Salemsaas' ad-
mission that he had talked to Kennedy about the Union,
that he had asked her to find out about the Union, and his
uncertainty as to whether he said anything about layoffs
if the Union came in, it is reasonable to conclude that the
incident occurred in substantially the manner in which
Kennedy credibly testified, and I so find.
2. Beatrice Gove testified that on January 6, 1966,
Foreman Salemsaas, asked her who was the spokeman
for the Union. When Gove replied that she did not know,
Salemsaas then is alleged to have said, "You mean to tell
me that you haven't been approached by this union?"
Gove replied that she had not been, stating that she had
only learned about the Union recently at a meeting.
Salemsaas then asked her how she had found out about
the meeting and she replied that she had heard about it
from a "few of the girls." Salemsaas does not deny that
such a conversation may have occurred stating only "it is
possible, but I don't remember." I find that his question-
ing of Gove occurred in substantially the manner to
which she credibly testified.
3. The next incident for which Respondent is alleged
to be responsible relates to the conduct of an employee
named Robert Boettinger, whom the General Counsel
claims to have acted as Respondent's "agent or represent-
ative." According to Beatrice Gove and Faye Manser,
witnesses for the General Counsel, Boettinger came to
7 In the complaint the General Counsel alleges that early in December
Foreman Marlyn Salemsaas told an employee that management wanted to
find out who started the union activity , and at the same time informed
such employee that Jagoe wanted no union in the shop and that, if the ring-
leaders were found, "God help them " The General Counsel called no
witness to testify to such an incident and his efforts to query Salemsaas as
to such conversation were met by an outright denial Accordingly , the al-
legation stands unsupported in the record , and I so find . The General
Counsel also adduced evidence indicating that employee Wallace Bird-
well, when hired in September 1965, was queried by Kirk Schlamp about
unions, with Schlamp indicating to Birdwell that he had worked in another
shop that had gone broke because of a union, and that he would close the
doors rather than see another union come in. This is not alleged as a viola-
tion in the complaint and apparently the evidence was adduced only to
show a hostile attitude by management toward union organization
FABRICATORS, INC. 147
Respondent 's so-called pod shop early in the day on
January 17 and stated to them that he wanted to tell them
how he felt about the Union . Boettinger went on to say
that he "had belonged to a lot of unions ... that this union
was a bunch of gangsters ," and that "we should get up a
grievance committee ." The women told Boettinger that
they had heard that Jagoe would not talk with them. To
this Boettinger is alleged to have replied , "Well, if you
can't talk to Mr. Jagoe , you can come and bring it to me
personally and I ' ll go to see Mr . Jagoe and I'll see that
something is done ." Following this conversation, Gove
and Manser prepared a list of grievances and immediately
undertook to approach Jagoe directly concerning a meet-
ing. The meeting which took place on the following day
will be discussed below.
Although the General - )unsel alleges Boettinger to be
an agent of Respondent , he does not claim that Boettinger
occupied a supervisory status. Boettinger himself did not
testify. Jagoe testified that Boettinger was hired "to
schedule production ," that he was an hourly employee
who worked directly under Kirk Schlamp , and that he had
no supervisory authority and no power to hire or fire.
Jagoe states that it was Boettinger 's job to plan produc-
tion on certain jobs in such a manner that they would
progress efficiently . Boettinger ' s work was carried on in
an office located on the same floor as that of Jagoe and he
shared office space with two engineers . Boettinger's
name was included on the eligibility list used in the Board
election but , when he appeared to vote at the election, his
ballot was challenged . The issue of his eligibility has
never been resolved . In the representation proceeding
there was a dispute concerning the inclusion of the
category of quality control and production control em-
ployees in the unit. The Board found both groups
properly to be included . Jagoe was unable to place
Boettinger as clealy within either category . His descrip-
tion of Boettinger ' s duties, however , would appear to
characterize him more nearly as a production control em-
ployee than anything else and presumably it was for this
reason that his name was included on the eligibility list.
There is no direct evidence that Boettinger was ever
designated to act for management to suggest to em-
ployees that they form their own grievance committee, or
to convey to them management 's views about the Union.
According to Jagoe , it had come to management's atten-
tion that Boettinger had been talking to employees in the
pod shop , but it is not shown that management had
authorized him to present its views, or that it had acted in
one way or another to promote or prevent his talking to
the employees . Nothing in the testimony of the General
Counsel ' s witnesses suggests that Boettinger held himself
out to them as a management representative or that they
regarded him as occupying a special status of this nature.
On the contrary from their testimony, it would appear
that Boettinger represented himself as an eligible fellow
voter. Under the circumstances I am convinced , and find,
that the General Counsel has not established Boettinger
to have been acting as an agent or representative of
management . Therefore , Respondent is not responsible
for his conduct , and the allegations in the complaint re-
garding his alleged threats and suggestion that the em-
ployees form a grievance committee cannot be sustained
as violations of Section 8(a)(1).
4. The General Counsel contends that during the
course of the so-called grievance meeting when Jagoe met
the employees on January 18, 1966, Jagoe made certain
coercive statements . As noted above after Boettinger had
suggested to the employees that they make an effort to
see Jagoe about their grievances , Gove and Manser acted
immediately upon his suggestion , and it was arranged that
Jagoe would meet with them on the morning of January
18. The meeting took place in the pod shop. Initially,
Gove, Manser , and another employee, Judy Whitney,
comprised the employee group . They were subsequently
joined by an additional employee named Mary McComas.
Jagoe was accompanied by his secretary, Arlene Lundin.
Gove explained to Jagoe that Boettinger had suggested
the meeting , and presented to Jagoe a list of grievances
that she had solicited from other girls in the pod shop. All
six of the people present at this meeting testified concern-
ing its events. There is general agreement that Jagoe told
the employees at the outset that he would be unable to
discuss grievances with them , and that in refusing to do
so, he was acting on the advice of counsel . He did, how-
ever, take from them the written list of grievances that
had been prepared which related to such matters as
seniority , wages, lockers, and other matters. It is
acknowledged , however, that no definitive discussions
ensued as to any item. During the relatively brief time
that the parties met, however, Gove , Manser , and Mc-
Comas all attribute to Jagoe a remark in which it is
claimed that he used the term "troublemaker ." According
to Gove this came about when she handed Jagoe the list
of grievances , and told him "that we couldn 't go upstairs
and see him ." Gove states that Jagoe then asked if "[she
had] ever had any trouble seeing him" and after she had
responded that she had not , Jagoe had then said, "it
seems to me like we have a troublemaker here, if we
could just find out who it is." Manser testified that Jagoe
had told the group that "he couldn 't say anything because
his attorney wouldn 't allow him to say anything " and then
he said , "if he could find the troublemaker in the shop he
would certainly do something about it." McComas
testified that Jagoe told the group that he brought his
secretary so that anything that he said could not be misin-
terpreted. McComas states that after Jagoe received the
grievance list he said , " I feel that these girls are being
stirred up by a troublemaker and if I can find who it is we
will eliminate that trouble ." Judith Whitney, the fourth
employee , although called as a witness was not
questioned concerning the "troublemaker" remark, and
she volunteered no testimony along such lines . In other
respects her testimony was not inconsistent with that of
the other employees . When Jagoe and Lundin were
specifically asked concerning mention of the word
"troublemaker," each denied that the term had been used
at this meeting . No one of the witnesses attributed to
Jagoe any mention of the Union or its organizational
drive, or any direct reference to the participation of any
one of them in the drive.
The testimony regarding this meeting presents a dif-
ficult issue of credibility . On the one hand there are three
apparently credible witnesses testifying consistently that
Jagoe made the "troublemaker" remark . On the other
hand we have Jagoe himself corroborated by his secreta-
ry, specifically denying it . While there is little reason to
believe that any one of the employee witnesses was pur-
posely fabricating her testimony, it is equally difficult to
believe that a sophisticated employer being directly ad-
vised by counsel concerning what lawful expressions he
might make to his employees and who was taking the
precaution of bringing with him his own secretary as a
336-845 0 - 70 - 11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness to the meeting would deliberately or inadver-
tently so forget himself as to make a remark that might be
viewed as a threat of reprisal. Despite the denials of Jagoe
and Lundin, however, I find it likely that Jagoe did use
the term "troublemaker" in substantially the manner
which the employees relate. The three not only testified
consistently in an apparently credible manner, but their
direct interest in the outcome of the proceeding is suffi-
ciently remote that I am disposed to discount any tempta-
tion to color their testimony. That all three would report
use of the same term suggests that this is what in all
likelihood they actually-heard, and, when this is balanced
against the less remote incentive of Respondent's wit-
nesses conveniently to forget a remark of this nature, I
find it more likely that the testimony of the three em-
ployees represents what was said. Accordingly, I find
that Jagoe did make the "troublemaker" remark substan-
tially as related above. The term "troublemaker" is one
frequently used in reference to persons engaged in union
organization, and its use here when coupled with the re-
mark that if the "troublemaker" were found the employer
would "eliminate the trouble" or "do something about it"
might reasonably be regarded as a threat of reprisal. This
is not necessarily its only connotation, however, and I
will give further consideration below to the significance
of the remark as it relates to the central issue in this
proceeding.
E. Discussion of the Issues and Conclusions
Having found the Union to be the statutory representa-
tive of Respondent's employees, and that its request for
recognition was refused by Respondent on December 10,
1965, we must next consider: (1) Whether or not Re-
spondent engaged in any unlawful acts whatsoever within
the meaning of Section 8(a)(1) of the Act; and (2) if so,
whether or not this unlawful conduct is of such a nature
that it will support the issuance of a bargaining order as
the General Counsel contends.
I have found above that General Manager Schlamp,
President Jagoe, and Foreman Salemsaas engaged in in-
terrogation of employees concerning their union activities
both before and after Respondent's refusal to recognize
the Union, and that in some instances they also sought
the support of these employees in reporting the union ac-
tivities of other employees. I have also found that
Foreman Salemsaas told an employee that there might be
layoffs if the Union came in, and suggested that this em-
ployee pass on word of this to other employees. In addi-
tion I have found that President Jagoe indicated to
several employees that he felt there was a
"troublemaker" in their midst, and that he, Jagoe, would
take steps to eliminate the "trouble."
While interrogation of employees is not per se a viola-
tion of the Act, it has long been the Board's view that in-
terrogation of employees concerning their union activities
when considered in the light of surrounding circum-
stances may be regarded as having a coercive character."
Generally speaking the test to be applied is whether or
not the questioning occurs in circumstances in which it
can be shown that it has no relevant purpose, whether it
takes place in conjunction with other unfair labor prac-
tices, and whether or not it is accompanied by safeguards
whereby the employees questioned are assured that
reprisals will not be undertaken. In the instant case no
relevant purpose is advanced by Respondent in support
of its interrogations. Apparently Respondent sought
thereby not only to learn the union sentiments of the em-
ployees questioned, but also endeavored to enlist the sup-
port of such employees in informing Respondent as to the
union activities of others. While questioning an employee
about his part in union organization may suggest the em-
ployer's interest in that person alone, when such
questioning is coupled with a request for a continued flow
of information about union organization, and is not at the
same time accompanied by assurances that no reprisals
will be forthcoming, it carries the additional connotation
that rewards or reprisals may result depending upon
whether the questioned employee complies or fails to
comply with the request for information. I find that under
the circumstances here presented, the interrogations un-
dertaken by Schlamp, Jagoe, and Salemsaas, both before
and after the refusal to bargain, took place in circum-
stances which gave them a coercive character, and that
by engaging in such interrogations, Respondent has vio-
lated Section 8(a)(1) of the Act.
The statement of Foreman Salemsaas that there might
be layoffs if the Union came in, coupled with his request
that Kennedy pass this on to other employees, constitutes
a well-defined threat of reprisal of an even more serious
nature. Few things carry a stronger thrust and are more
clearly calculated to influence an employee in the exer-
cise of his statutory rights than his being told that if he un-
dertakes to bring in a union , layoffs may result.
Moreover, Respondent compounded this coercive effect
by urging that word of it be circulated among the em-
ployees. Accordingly, I find that by the threat of layoff
Respondent has engaged in conduct violative of Section
8(a)(1) of the Act.
The "troublemaker" remark of President Jagoe, con-
sidered in the context in which it was made, presents an
issue which is not so well defined. It must be noted that
the remarks were made at a meeting not scheduled by
Respondent, but requested by the employees themselves.
At the outset of the meeting Jagoe was informed that the
employees had been told that Jagoe would not meet with
them to discuss grievances. This elicited an expression of
surprise from Jagoe, who, upon learning that none of
these employees had previously requested or been denied
a meeting for such purpose, commenced to speculate
upon who might be responsible for having spread such an
impression, concurrently describing such person as a
"troublemaker." Jagoe did not couple his comment with
a direct reference to the Union, nor does it appear that the
subject of union organization or the participation of any
of the employees present in organizational efforts came
up at all. Nevertheless, as I have found above, Jagoe in
making such remarks placed no limitation upon their
scope. I am not called upon to speculate as to the actual
effect remarks of this nature may have on employees.
However, I cannot overlook the fact that a statement of
this nature may well have come through to employees
pondering their vote in the election scheduled for the next
day as an expression by top management that an em-
ployee engaged in stirring up others for organizational or
other reasons might thereby subject himself to reprisals.
8 Blue Flash Express, Inc , 109 NLRB 591.
FABRICATORS, INC.
Respondent is not to be excused from the reasonable ef-
fect that its statement may have upon its employees even
though such statement may have been made inadver-
tently or without specific intent that it have such effect.
Accordingly , having found that Jagoe made the
"troublemaker" remark , I further find that such state-
ment constitutes a threat of possible reprisal, and is
thereby an interference with basic employee rights viola-
tive of Section 8(a)(1) of the Act . The significance of the
violation , however , as it relates to supporting the bargain-
ing order , will be considered further below.
Having found Respondent to have engaged in unlawful
conduct in violation of Section 8 (a)(1) of the Act, we must
next consider whether this course of conduct is properly
remedied by a cease -and-desist order alone , coupled, per-
haps , with an order setting aside the election , or whether
under currently applicable Board doctrine Respondent
should also be required to bargain with the Union as its
statutory representative . This raises an issue concerning
the application of the Board 's so-called Joy Silk Mills or
Bernel Foam doctrine.9
The doctrine in its general outline recognizes that the
determination of 'questions concerning representation is
ordinarily best resolved by secret -ballot elections, but
that an employer 's right to an election is not absolute, and
where the employer has evidenced bad faith in doubting
the union ' s majority , or has engaged in conduct calculated
to dissipate such majority , authorization cards may be
used to prove the union ' s majority and to support a bar-
gaining order against the employer . The underlying prin-
ciple behind the doctrine and a general limitation upon its
application are well stated in the following excerpt from
the Board ' s decision in Aaron Brothers Company of
California, 158 NLRB 1077, 1079:
Whether an employer is acting in good or bad faith
in questioning the union 's majority is a determination
which of necessity must be made in the light of all the
relevant facts of the case , including any unlawful
conduct of the employer , the sequence of events, and
the time lapse between the refusal and the unlawful
conduct . Where a company has engaged in substan-
tial unfair labor practices calculated to dissipate
union support , the Board , with the courts' approval,
has concluded that employer insistence on an elec-
tion was not motivated by a good -faith doubt of the
union ' s majority , but rather by a rejection of the col-
lective-bargaining principle or by a desire to gain
time within which to undermine the union . However,
this does not mean that any employer conduct found
violative of Section 8(a)(1) of the Act , regardless of
its nature or gravity , will necessarily support a
refusal-to-bargain finding . For instance, where an
employer 's unfair labor practices are not of such a
character as to reflect a purpose to evade an obliga-
tion to bargain , the Board will not draw an inference
of bad faith.
The doctrine , as above stated , is limited to situations
where widespread and serious unfair labor practices mark
an employer 's response to the raising of a question con-
cerning representation among its employees. The Board
qualifies its application , however , by stating that in every
149
case where unfair labor practices are found, a bargaining
order will not follow, for in some situations the unfair
labor practices found will not suffice to support an in-
ference of bad faith in the refusal to bargain. This qualifi-
cation or limitation on the application of the doctrine is
dictated by the necessity to place the significance of an
employer's misconduct in its proper perspective. Promo-
tion of collective bargaining with freely chosen represen-
tativef^ of employees is an underlying aim of the statute.
While we can determine what type of employer conduct
is calculated to interfere with the free choice of represent-
atives, we cannot precisely measure the actual effect that
such conduct will have on the particular employees in any
given case. To order bargaining even in the face of
flagrant unfair labor practices may thus result in giving
the employees a representative which they may or may
not desire. However, if the unfair labor practices have
been widespread and aggravated, we may conclude not
only that it is reasonable that the employer should forfeit
any right it otherwise might have to get the representation
question resolved by a secret ballot, but we may also con-
clude that the effect of such unfair labor practices has
been such that employees cannot now, or in the
reasonably foreseeable future, exercise a free choice of
representatives. In such a situation it may well be that the
earlier designation of a union by signing a card at a time
before the unfair labor practices had taken place, will
represent a more reliable gauge of their free choice than
any other means left available. The bargaining order
becomes the appropriate remedy here not because it with
certainty reflects employee choice, but because ag-
gravated employer misconduct has destroyed the means
of resorting to another method, and the order under the
circumstances is the most likely means of making such
choice and at the same time preventing the employer's
profiting from his own wrongdoing. On the other hand
where the unfair labor practices are not widespread or of
a substantial nature , or if they are isolated and sporadic,
they neither demonstrate a clear disposition upon the em-
ployer's part to nullify the employee rights of free choice,
nor do they create a situation where it is as likely that the
employer's views will come through to the employees in
such a way that it will in fact have this effect. In such a
case it is not as clear that the earlier card designation, an
intrinsically less reliable method of designating represent-
atives than an election, is likely to be a more accurate ex-
pression of choice or that another method is effectively
foreclosed. While less significant unfair labor practices
are not to be condoned , they can be remedied in a manner
other than imposing a bargaining agent which may not
represent the free choice of the employees . In such a case
a cease-and-desist order, notification to the employees
thereof, and the conduct of an election or another elec-
tion, as the case may be, stands out as the better method
of remedying the wrong done. The line separating the
flagrant from the mild , unfair labor practice situation,
however, is not one which can be sharply drawn, and a
determination in any given case can only be made by a
consideration of all the circumstances, and by making a
value judgment on which reasonable men may differ. We
must next turn to the application of the foregoing as it ap-
plies to the record before us.
"Joy Silk Mills, Inc , 85 NLRB 1263, enfd 185 F 2d 732 (C A. D C ),
Bernel Foam Products Co, Inc, 146 NLRB 1277
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Looking first at the organizational drive which led up
to the demand for recognition, the record discloses that it
was accompanied by no widespread expression of union
animus upon Respondent's part. Except for the question-
ing of one employee in September, coupled with the re-
mark that Respondent did not favor unions, and some
rather limited questioning of older employees as to their
knowledge of union activity, accompanied by solicitation
of their help in reporting to management, little else
characterized this period. Even this questioning was not
accompanied by overt threats of reprisal or promises of
benefit. Thus in the organizational period I see little but
somewhat mild opposition to union organization, exceed-
ing permissible bounds in some cases, but not going so far
as to suggest that at this point Respondent was rejecting
the collective-bargaining principle or undertaking a con-
certed attack aimed at undermining the Union.
Respondent's refusal to recognize the Union voiced on
December 10, 1965, does not take place in circumstances
suggesting bad faith, or a design to gain time to undermine
the Union. While the Union did offer to show its cards to
Respondent, it did not do so, and Respondent at no time
acknowledged that the Union had a majority. Respondent
replied promptly to the Union's request for a meeting,
and within a reasonable time advised the Union that it
was declining to accord it recognition until it had
established a majority through Board machinery.
Moreover, at this juncture a legitimate unit question ex-
isted. The Union was seeking a unit which excluded the
machine shop, while Respondent contended it should be
included. As we have seen this issue was litigated in the
Board representation proceeding, and the Regional
Director found the machine shop properly to be part of
the unit. In addition there were unit issues between the
parties as to the inclusion or exclusion of certain fringe
employees which were likewise resolved by the Regional
Director. Thus it would appear that Respondent's initial
refusal to accord the Union recognition was made in good
faith and did not occur in a setting suggesting rejection of
the collective-bargaining principle, and I so find.
Application of the Joy Silk Mills doctrine then must
rest upon Respondent's postrefusal conduct, which we
must now examine to determine if this, when considered
with what had gone before, is of a "nature and gravity" so
as to "reflect a purpose to evade an obligation to bargain"
from which we may "draw an inference of bad faith suffi-
cient to support a bargaining order."
I have found only three incidents to have transpired
after the refusal to bargain: the layoff threat of Salemsaas
made to Kennedy; the interrogation of Manser by Salem-
saas; and the "troublemaker" remark by Jagoe.
The serious character of the layoff threat made by
Salemsaas is manifest especially when it is noted that he
suggested that Kennedy communicate his views to em-
ployees. It should not be overlooked, however, that this
threat was limited to one employee, and that this record
does not disclose the extent to which Kennedy actually
circulated the information she had received. In addition,
Salemsaas, while clearly a supervisory employee, was the
foreman of only one of Respondent's departments and no
evidence has been adduced that top management knew of
or endorsed his expressed views. The policy of top
management opposing organization was fully expressed
in the letters and in a speech by Jagoe found by the Re-
gional Director to be within the limits of Section 8(e). In
view of this and Jagoe's obvious awareness of the legal
limitations on expressions to employees, I find it unlikely
that he would have endorsed such an expression as that
attributed to Salemsaas or if he had known of it that he
would not have disavowed it. Although this does not suf-
fice to vitiate responsibility of Respondent for the coer-
cive character of the statement, it gives the incident a du-
bious significance as a measure of Respondent's rejection
of the collective-bargaining principle or overall aim to un-
dermine the Union.
The questioning of Manser by Salemsaas like the earli-
er questioning of Schlamp and Jagoe was isolated and not
accompanied by additional overt expressions of threats
of reprisal. Considering this and Salemsaas' status as a
minor supervisor, this too does not stand out as a rejec-
tion by Respondent of its statutory obligations.
Jagoe's "troublemaker" remark, of course, emanated
from the highest management source. Although Jagoe
may not escape responsibility, full consideration of the
context in which it was made does not convince me that
it had an intentional unlawful connotation. The so-called
grievance meeting was solicited by the employees them-
selves and it is significant that the organizational cam-
paign and their connection with it were subjects not
brought up at all during the course of it. While use of the
term "troublemaker" had a possible relationship to union
organization and may have been so regarded, it is equally
possible that the reference might have been meant, and
might have come through as referring to the unknown
person or persons responsible for giving the employees
the impression that Jagoe was unwilling to meet with
them concerning their grievances. This might even have
been a management representative. Thus the remark,
while unfortunate, does not appear in a setting where it
reasonably suggests a rejection of the collective-bargain-
ing principle or that it is an integral part of a planned ef-
fort to undermine the Union.
Contrary to the claim of the General Counsel I do not
find in the foregoing unfair labor practices conduct of so
widespread or of such serious nature that it reasonably
supports an inference of bad' faith, and an effort by
Respondent to evade its statutory duty to bargain. While
it cannot be said with precision exactly what effect the
conduct may have had on the employees here, I do not
see misconduct of such gravity that it calls for depriving
the employees of their right of free choice by the more re-
liable secret-ballot method. I am convinced that the more
drastic bargaining remedy must be reserved for situations
where the unfair labor practices found are both more ex-
tensive and more flagrant than they appear in the instant
case. In this situation I deem it more appropriate that
they be remedied by a cease-and-desist order alone. Ac-
cordingly I find that the General Counsel has not
sustained the burden of establishing that Respondent has
refused to bargain in bad faith within the meaning of Sec-
tion 8(a)(1) or (5) of the Act. And I will recommend that
the allegations regarding Respondent's refusal to bargain
be dismissed.
IV. THE OBJECTIONS TO THE ELECTION
In consolidating the representation proceeding with the
complaint proceeding, the Regional Director concluded
that Respondent's speech of January 18 and a prior letter
to the employees were privileged within the meaning of
Section 8(c) of the Act. He also concluded, however, that
other matters raised substantial and material issues with
p.
FABRICATORS, INC. 151
respect to conduct affecting the results of the election,
and that these issues should be resolved after hearing.
Among these were an alleged unlawful wage increase.
General Counsel did not allege a wage increase as an un-
fair labor practice, nor was evidence adduced to support
it as an objection. The threats of reprisals or promises of
benefit , the interrogations , the alleged solicitation and
sponsorship of an inside plant grievance committee noted
in the objections appear to encompass the same matters
alleged in the complaint, and are treated with in connec-
tion with the findings made above. No additional matters
were offered relating to the objections alone.
I have found above that Respondent engaged in unlaw-
ful interrogation and unlawful threats of reprisal in viola-
tion of Section 8(a)(1) of the Act. While I have not found
such conduct sufficient to support a bargaining order, dif-
ferent criteria are applicable when the issue is setting
aside an election. The Board has consistently held that
"[c]onduct violative of Section 8(a)(1) is, a fortiori,
conduct which interferes with the free and untrammeled
choice in an election. This is so because the test of con-
duct which may interfere with the laboratory conditions
for an election is considerably more restrictive than the
test of conduct which amounts to interference, restraint,
or coercion which violates Section 8(a)(1)." Dal-Tex Op-
tical Company, Inc., 137 NLRB 1782. Since the unlawful
conduct found above may have affected the free choice of
the employees in the election, it follows that the election
conducted on January 19, 1966, should be set aside. Ac-
cordingly I find that objections filed by the Petitioner in
the representation proceeding herein do raise substantial
and material issues with respect to conduct affecting the
results of the election, and that the election heretofore
held in Case 19-RC-3822 should be, and the same
hereby is, set aside.
V. The Effect of the Unfair Labor Practices Upon
Commerce
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
Vi. THE REMEDY
4. On December 10, 1965, Respondent failed to ac-
cord the Union recognition as the statutory representa-
tive of employees in the aforesaid unit.
5. By acts of interrogation, threats of reprisals, and
promises of benefits, as found above, Respondent has in-
terfered with, restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act.
6. By its refusal to accord the Union recognition on
December 10, 1965, and by the acts and conduct found
violative of Section 8(a)(1), Respondent has not engaged
in a refusal to bargain within the meaning of Section
8(a)(1) and (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this proceed-
ing, I recommend that Fabricators, Incorporated, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from.
(a) Unlawfully interrogating its employees, threaten-
ing them with economic reprisals, or offering them
promises of benefit for the purpose of influencing their
union activities or sympathies.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist the
above-named Union or any other labor organization, to
bargain collecti-vely through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutal aid or
protection.
2. Take the following affirmative steps designed to ef-
fectuate the policies of the Act:
(a) Post at its plant in Seattle, Washington, copies of
the attached notice marked "Appendix."10 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 19, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Assortment Sheet Metal Workers Local Union No.
383, affiliated with Sheet Metal Workers Association,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The unit above described in section III is a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
10 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
152 DECISIONS OF NATIONAL
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT unlawfully interrogate our em-
ployees, threaten them with economic reprisals, or
promise them economic benefits for the purpose of
influencing their union activities or sympathies.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coercce our employees in the
excerise of their right to self-organization, to form,
join, or assist Assortment Sheet Metal Workers
Local Union No. 383, affiliated with the Sheet Metal
Workers Association, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of Assort-
LABOR RELATIONS BOARD
ment Sheet Metal Workers Local Union No. 383, af-
filiated with the Sheet Metal Workers Association,
AFL-CIO.
FABRICATORS, INCOR-
PORATED
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington 98101,
Telephone 583-4583.