Flomatic Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1304 (N.L.R.B. 1964)

1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL jointly and severally, with Shure-Richardson, Inc., make the fol-
lowing employees whole for any loss of pay they may have suffered as a result of
their unlawful layoff.
James T. Berry Wilfred K. Weber
William W. Copeland Ray L. Weiler
John P . Pickert
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA, AFL-CIO,
Labor Organization.
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.
Employees may communicate directly with the Board's Regional Office, 4459
Federal Building , 1520 Market Street , St. Louis, Missouri , Telephone No. Main
2-4142, if they have any questions concerning this notice or compliance with its
provisions.
Flomatic Corporation and Lodge No. 1588, International Asso-
ciation of Machinists, AFL-CIO. Case No. 3-CA-2090. June 30,
1964
DECISION AND ORDER
On February 26, 1964, Trial Examiner Horace A. Ruckel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
and the Union each filed exceptions to the Trial Examiner's Decision
with a supporting brief, and the Respondent filed an answering brief
in opposition.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
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 Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except to the'extent inconsistent herewith.
The Trial Examiner found, and we agree for the reasons given
below, that the Respondent did not refuse to bargain with the Union
since about March 25,1963, in violation of Section 8 (a) (5) of the Act.'
} However, in view of our recent decision In Bernel Foam Products Co., Inc., 146 NLRB
1277, wherein the Board reversed Louis Aiello , et al.. d/ b/a Aiello Dairy Farms, 110
NLRB 1365 , we find no merit in the Respondent 's contention that the Union by its partici-
pation in a Board election on May 2, 1963 , was foreclosed from thereafter filing an
8(a)(5) charge.
147 NLRB No. 143.
FLOMATIC CORPORATION 1305
The Trial Examiner further found that the Respondent did not there-
after violate Section 8(a) (1) of the Act by interrogating employees
concerning the Union and promising them benefits if they refrained
from giving it assistance. We disagree n'ith the latter finding as we
are of the opinion that the respondent's preelection letters of May 1
and 2 2 contained a number of promises of benefit and invitations to
deal directly with the Respondent which were designed to undermine
the majority status of the Union in violation of Section 8(a.) (1) of
the Act .3
As indicated in the Trial Examiner's Decision, William I.T. Bradt,
the Union's representative, on March 25, 1963, wrote the Respondent's
plant manager, Wilbur Rice, advising him that a majority of the em-
ployees in the unit had designated the Union as their bargaining rep-
resentative and requesting that the Respondent recognize the Union.
Bradt requested an appointment with Rice "at which time this matter
can be discussed and properly disposed of." Bradt concluded the letter
with the following request : "We would appreciate a prompt reply .. .
if possible within five days from the date of this letter. If no reply is
received by us by that time, we will. assume that the . . . request for
recognition ... is refused, in which event we shall file -a petition
with the . . . Board."
Two days after writing the letter, Bradt mailed a petition for an
election to the Regional office which received it on March 29. Rice
telephoned Bradt a "couple of days" prior to April 1 and arranged a
meeting for that date. Bradt explained at the meeting with Rice that
the letter requesting recognition was required as a prelude to an elec-
tion. On April 19, 1963, the parties entered into a consent agreement
for an election on May 2, 1963, to determine 'whether or not the em-
ployees desired to be represented by the Union.
The Trial Examiner found that the Union's. letter demanding
recognition did not include a clear and unequivocal demand for bar-
gaining and there could therefore be no unlawful refusal to bargain on
the part of the Respondent. Without ruling that the language used in
the Union's letter might not under other circumstances be regarded
as a proper bargaining request, we find on the basis of the particular
circumstances herein. that the Respondent was justified in not regard-
ing the Union's letter as a specific request to bargain such as to call for
a response. It is clear from the conduct of its representative that the
Union was asking only for an election as a means of establishing its
status as the bargaining representative of the employees.4 Thus, as
s The text of this letter is attached hereto as Appendix B.
s The parties stipulated that as of March 26, 1963 , a majority of the employees in the
appropriate unit had signed cards authorizing the Union to represent them for purposes
of collective bargaining.
• Cf. Barker 's East Main Corporation, 142 NLRB 1194.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shown above, the Union filed its petition without awaiting a reply
to its letter, and its representative testified that he explained to Rice on
April 1 that a letter requesting recognition was "required in petition-
ing [the Board] for the election."
As already indicated, the Trial Examiner found that none of the
Respondent's preelection statements and literature promised benefits
to the employees. However, we find, contrary to the Trial Examiner,
that an examination of the letter distributed by the Respondent on
May 1 and 2 reveals all too plainly that it contained a series of prom-
ises of benefit and invitations to employees to deal directly with the
Respondent that dissipated the majority status of the Union and
destroyed the conditions for a fair election in which the Union could
demonstrate its majority.5
Respondent's letter stated that it was written by Plant Manager
Rice in reply to a union leaflet which asserted that the Respondent in
an earlier letter had not said that it would "correct the abnormal and
substandard pay rates and working conditions in [the] plant . . . ."
Rice, at the outset of the letter, asserted that "in a company of this
size it hardly seems necessary to pay dues to a union for the privilege
of talking to me . . . about your wages and working conditions."
Rice also made the following comments on various items which were
mentioned in the Union's letter :
1. Seniority-"... My position is that I will guarantee to respect
seniority."
2. Health and welfare plans-"... If any of you individually
have some thoughts on the subject, I would be interested in reviewing
them with you . . . I am open to suggestion and will make no changes
unless a majority of you approve of anyc:changes which might be
suggested."
3. Vacation with pay-"... I would hope that we could look for
some improvement in the vacation benefits for employees with many
years seniority."
4. Arbitration-"... We have no arbitration procedures now .. .
if many of you think it would be desirable to establish such a pro-
cedure, I would be very glad to work on it with you."
5. Layoff and -recall-"... I will be glad to guarantee that layoffs
and recall will be based on seniority."
6. Paid holidays-"... We now have six paid holidays. If
more . . . becomes more or less standard throughout industry, we
shall certainly join the crowd. . . ."
6 As noted in the Trial Examiner's Decision , the Union lost the election and filed objec-
tions. Thereafter, the parties agreed to setting aside the election . The Union subse-
quently requested withdrawal of its petition which was permitted by the Regional Director
with prejudice.
FLOMATIC CORPORATION 1307
7. Pension plans-". . . We do not now have a pension plan ... I
will work toward instituting [a profit sharing plan which provides
some of the benefits of a pension plan] ... At the moment . . .
Flomatic . . . cannot afford a pension plan and you can be sure that
I am doing my best to alter this situation."
8. Leave of absence-". . . Although we have had no request for
a Leave of Absence since I got here, you may assume the policy of
granting a leave is now in effect at Flomatic."
9. Grievance procedure-". .. Here at Flomatic we certainly have
a most satisfactory and direct Grievance Procedure ... I will do
my best to see to it that [employee grievances are] resolved to your
satisfaction ... I doubt if the Union can suggest a more direct and
satisfactory Grievance Procedure."
10. Overtime pay provisions-". I believe [our present schedule]
is a reasonable overtime pay schedule, but if you have any suggestions
I would welcome them."
The letter further stated: "I have previously said that I would
consider pay raises as soon as we are making money . . . we did make
money in the first quarter of this year, so if my word is any good you
can draw your own conclusions."
We find that by this letter the Respondent engaged in unlawful
conduct in violation of Section 8 (a) (1) of the Acts Where, as here,
the union has clearly established its majority status prior to the re-
spondent's unfair labor practice, and the respondent has engaged in
unlawful conduct aimed at destroying the union's majority and dis-
closing a disposition to evade its obligation to bargain, we have re-
quired the respondent to bargain, as only a bargaining order could
restore as nearly as possible the situation which would have obtained
but for the respondent's unfair labor practices.7 We shall therefore
order that the Respondent, upon request, bargain collectively with
the Union.
The foregoing activities of the Respondent, occurring in connec-
tion with the operations of the Respondent described in section I of
the Trial Examiner's Decision, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
6 The General Counsel contends that Respondent's Plant Manager Rice also engaged in
8(a) (1) conduct by interrogating employees James Hathaway and Nettie Parker. As the
record shows, contrary to the Trial Examiner, that Hathaway's testimony was disputed
by Rice, and as the Trial Examiner did not mention or make any credibility findings as
to Parker's testimony, we shall not rely on the testimony of these two employees as a
basis for an 8(a) (1) finding.
7 Bannon Mills, Inc., 146 NLRB 611 ; Western Aluminuon of Oregon, Incorporated,
et at., 144 NLRB 1191.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
As the unfair labor practices committed by the Respondent reflect
its hostility to the principles of collective bargaining and to the
rights of employees to engage in legitimate concerted activities for
the purposes of organization or other mutual aid or protection, we
shall issue a broad order enjoining all forms of unlawful interference
with rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing and the entire record in this case,
we hereby accept the Trial Examiner's Conclusions of Law, as modi-
fied by the following additional :
CONCLUSIONS OF LAW
4. All production and, maintenance employees at Respondent's
Hoosick Falls, New York, plant, excluding office clerical employees,
guards, professional employees, and supervisors, as defined by the
Act, constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
5. At all times since March 26, 1963, the Union has been, and now
is, the exclusive representative of all the employees in the unit de-
scribed in paragraph 3, above, for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
6. By its letters distributed on May 1 and 2, 1963, promising bene-
fits to employees and inviting them to deal directly with the Respond-
ent, Respondent interfered with, restrained, and coerced- employees in
the exercise of their statutory rights within the meaning of Section
8(a) (1) of the Act.
7. The foregoing unfair labor practices affect 'commerce within the
meaning of Section 2•(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Flomatic Corporation, Hoosick Falls, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
aforementioned Union or any other labor organization, to bargain
collectively through 'representatives of their own choosing, or to en-
gage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected
FLOMATIC CORPORATION 1309
by any agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a) (3) of the
Act, as amended.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Upon request, bargain with Lodge No. 1588, International
Association of Machinists, AFL-CIO, as the exclusive representative
of all its employees in the unit herein found appropriate, and em-
body any understanding reached in a signed agreement.
(b) Post at its plant in Hoosick Falls, New York, copies of the
attached notice marked "Appendix A." 8 Copies of said notice, to be
furnished by the Regional Director for the Board's Third Region,
shall, after being signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained 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.
(c) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT Is FURTHER ORDERED that those allegations of the complaint
alleging violation of Section 8(a) (5) of the Act, and violations of
Section 8(a) (1) of the Act not herein found, be, and they hereby
are, dismissed.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order," the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with Lodge No.
1588, International Association of Machinists, AFL-CIO, as the
exclusive representative of all employees in the bargaining unit
described below with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agree-
ment. The bargaining unit is :
All production and maintenance employees at the Com-
pany's Hoosick Falls, New York, plant, excluding office den-
0
5.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cal employees, guards, professional employees, and super-
visors as defined in the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the aforementioned
Union or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to ref rain from any and all such ac-
tivities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act,
as amended.
All our employees are free to become, remain, or refrain from be-
coming, members of Lodge No. 1588, International Association of
Machinists, AFL-CIO, or any other labor organization, except to the
extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act, as amended.
FLOMATIC CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
.Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo,
New York, Telephone No. Ti. 6-1782, if they have any question con-
cerning this notice or compliance with its provisions.
Dear Fellow Employees:
APPENDIX B
May 1, 1963
This morning I had an opportunity to read the letter furnished to you by Mr.
Bradt which carried the signature of "Flomatic Organizing Committee ". This let-
ter pointed out that the laws of our country give you the right to bargain collectively
with your employer through representatives of your own choosing . This is cer-
tainly true and I do hope you exercise this right and that you feel qualified and
capable of doing it yourself . In a company of this size it hardly seems necessary to
pay dues to a union for the privilege of talking to me, not only about your wages
and working conditions , but any other matter that you may have in mind. An ex-
change of views through a third party is never satisfactory and is often distorted
and misunderstood . A direct communication between two people is almost always
the best way to solve a problem . If you don' t want to come to me I shall be glad
.to come to you at your convenience to discuss any matter which you think we
should look into.
Regarding the twelve items affecting your -employment mentioned in Mr . Bradt's
letter, my comments are as follows:
1. Seniority (job security).
These two are not synonomous . You can have "Seniority" in a declining business
while people are being laid off , but certainly not "job security" under those condi-
tions. "Job security" can only exist in a healthy company which is preferably ex-
0
FLOMATIC CORPORATION 1311
panding and making money enough to buy new or better equipment to provide more
jobs to fill the needs of a growing list of satisfied customers . My position is that
I will guarantee to respect "Seniority" here as I have every other place I have
worked. My views are pretty well set forth in the Code of Rules which I wrote
some years ago. As I have mentioned before, I will write a. Code of Rules for
this company just as quickly as I possibly can. Learning about our business and
trying to build up our business have taken priority over this job. so far. This
build-up of the company is the only way to provide you with "job security" and my
success or failure will affect my "job security" a lot quicker than yours. Therefore,
while I can guarantee your SENIORITY I can only guarantee to work for your
"job security".
2. Health and Welfare Plans.
We now have a Blue Cross -Blue Shield arrangement which I understand from
talking to you is very satisfactory . If the union has suggested that they can offer
you an improvement I would certainly be interested in their suggestions. If any
of you individually have some thoughts on the subject, I would be interested in
reviewing them with you. As you know, I have already asked two people that
I feel are well qualified in this field to submit proposals for improved coverage
and/or lower costs , but I have not been able to uncover an overall plan which
appears to be better than the one we now have . My position on this subject is that
I am open to suggestion and will make no changes unless a majority of you approve
of any changes which might be suggested.
3. Vacation with Pay.
We now have "Vacation with Pay" and it appears to be a liberal plan for a com-
pany of this size. Certainly very few companies offer a vacation of any kind to
employees with less than a year of service. Please look at the Bulletin Board to see
how much vacation and how much vacation pay you are entitled to. If you be-
lieve that there has been an error in the calculations , please let me know immediately.
My position is that the present company policy will be continued and I would hope
that we could look for some improvement in the vacation benefits for employees with
many years seniority.
4. Arbitration.
An arbitrator is needed when two people cannot resolve a dispute between them.
We have no arbitration procedures here now, but I aim personally not opposed to
arbitration and if many of you think it would be desirable to establish such a pro-
cedure, I would be very glad to go to work on it with you.
5. Lay-Off and Recall.
My views are best understood by reading the Code of Rules on this subject.
Fortunately, we have been hiring people since I got here, not laying them off and
I hope this situation will continue . However, I will be glad to guarantee that "lay-offs
and recall" will be based on seniority as was the case when the Purolator job was
held up for a few days.
6. Paid Holidays.
We now have six paid holidays. If more than six paid holidays becomes more
or less standard throughout industry, we shall certainly join the crowd. I don't
think we are presently in a position to try and be the pace- setter and offer more
holidays than anybody else, although it would be fine if we were. My stand is
that these paid holidays will be continued as a company policy.
7. Pension Plans.
We do not now have a pension plan and neither did Warren Wire Company when
I joined that firm. They now have a profit sharing plan which produces some of
the benefits of a pension plan and I will work towards instituting a similar arrange-
ment here. Our government established Social Security many years 'ago because
it was obvious that the great majority of businesses in this country could not afford
a pension plan of any kind. At the moment, of course , Flomatic Corporation
cannot afford a pension plan and you can be sure that I am doing my best to alter
this situation.
8. Leave of Absence. •
My views on a Leave of Absence are spelled out in the Code of Rules previously
referred to and I shall be glad to see that this policy is applied here at Flomatic.
Although we have had no request for a Leave of Absence since I got here , you may
assume the policy of granting a leave is now in effect at Flomatic.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Grievance Procedure.
Normally in a large company a Grievance Procedure is one which takes disputes
up through channels until they finally reach the highest level of management if
they cannot be resolved at some lower level. Here at Flomatic we certainly have
a most satisfactory and direct Grievance Procedure. In case you are not familiar
with the formal Grievance Procedure, I would suggest you try the following:
Merely say-"Hey Wilbur, I got a gripe."
I will do my best to see that it is resolved to your satisfaction as quickly as possible.
I doubt if the union can suggest a more direct and satisfactory Grievance Procedure.
10. Overtime Pay Provisions.
We now pay time and a half for any time worked over 8 hours in any one day
and time and a half for any time worked over 40 hours in any one week. I believe
this is a reasonable overtime pay schedule, but if you have any suggestions I would
welcome them. Without a union, they will not be reduced.
11. Shift Premium Pay.
We now have shift premium pay of ten cents .per' hour for the second shift and
fifteen -cents per hour for the third shift. I have heard no comments -from any of
you that this was not a completely satisfactory arrangement. Without a union, they
will not be reduced.
12. Wash Up Time.
We do have wash up time provided and again I have heard no criticism or sugges-
tion that this is also not a completely satisfactory arrangement. Without a union,
they will not be reduced.
Reference was made to my letter to you of April 26th in which the union noted and
I would not state that I "will correct the abnormal and substandard pay rates and
working conditions in our plant, nor does he state that in the future, without a union,
they will be lowered even further". It is 'my understanding that with a National
Labor Relations Board election in -the offing, it is not legal for me to make any
guarantees of what improvements I will offer you in the future and I can assure you
that I am most anxious not to get in any legal troubles. However, I have previously
said that I would consider pay raises as soon as we were making money. When I
made that statement we were not making money, which fact you are well aware of.
According to Mr. Urbach's report to Sweden and to me, we did make money in the
first quarter of this year, so if my word is any good you can draw your own
conclusions.
Our "substandard pay rates" have still attracted 14 new employees since I joined
the company. The union might be more helpful if they spent their efforts' in
trying to improve the pay rates and working conditions at some of the places these
new employees left to join us.
I don't know why the letter you received this morning seemed to make an
issue of whether or not the meeting I attended in Albany was a FORMAL hearing
or not. As I stated to you previously, the meeting was not a formal hearing,
in spite of the suggestion to the contrary in this morning's letter. I merely mention
this because the union seems to be concerned with the `.`facts" and I only wish
that they could be stated correctly.
On Thursday, May 2nd, an election will be conducted by the National Labor
Relations Board and I hope that you will vote by putting an X in the right hand
square on your ballot, thereby giving me your vote of confidence and indicating
that you do not want to have a union enter the picture at this time. If you previously
signed a union card you are at liberty to change your mind now that you have had an
opportunity to assess the facts which I have tried to present to you and the promises
and implied promises made to you by the union representatives. I wonder if they
listed in detail the great assistance unions have rendered to the employees of the
following foundries in this area:
Noble and Wood, Walter A. Wood, Rensselaer Valve, Ludlow Valve, Eddy
Valve and Hunter Machine Company.
Please give me your continued support by voting NO by marking an X in the
right hand square on your ballot and if I should prove to be a disappointment to
you, you can then ask for another vote twelve months from now. I think the progress
we have made together since I got here can and should be continued.
Sincerely,
Wilbur C. Rice
FLOMATIC CORPORATION 1313
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 10, 1963, by Lodge No. 1588, International Associa-
tion of Machinists, AFL-CIO, herein called the Union, the General Counsel for the
National Labor Relations Board, herein called, respectively, the General Counsel
and the Board, by the Regional Director for the Third Region (Buffalo, New York),
issued a complaint dated September 5, 1963, against Flomatic Corporation, herein
called Respondent, alleging in substance that Respondent (1) beginning about
April 1, 1963, interrogated its employees concerning their membership. in or activi-
ties on behalf of the Union, and promised them certain benefits if they abstained
from giving it assistance; and (2) since, about March 25, 1963, has failed and re-
fused to bargain with the Union as the collective-bargaining representative of its
employees in an appropriate unit, in violation of Section 8(a)(1) and (5) of the
National Labor -Relations Act,'as amended (29 U.S.C. Sec. 151, et, seq.), herein
called the Act. Respondent's answer' denies the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held before Trial Examiner Horace A. Ruckel
at Albany, New York, on December 3, 4, and 5, 1963, at which the parties were
represented by counsel. At the conclusion of the hearing the parties waived oral
argument and subsequently filed briefs.
Upon the record as a whole, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE RESPONDENT'S' BUSINESS
Respondent is a New York corporation having its principal office and place of
business at . Hoosick Falls, New York, where it is, engaged in the manufacture, sale,
and distribution of valves and related products. During the . 12 months prior to the
issuance of the complaint Respondent sold and distributed from its Hoosick Falls,
New York, plant, products valued in excess of $50,000, of which products valued
in excess of $50,000 were shipped from said plant directly to States of the United
States other than the State of New York. The complaint alleges and Respondent's
answer admits that Respondent is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Lodge No. 1588, International Association of Machinists , AFL-CIO , is a labor
organization admitting employees of. Respondent to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain and other alleged interference,
restraint, and coercion
1. The appropriate unit
The complaint alleges and Respondent's answer admits that an appropriate unit
for purposes of collective bargaining consists of all production and maintenance
employees at Respondent's Hoosick Falls, New York, plant, exclusive of office cleri-
cal employees, guards, professional employees, and supervisors as defined by the Act.
2. The Union's majority in the unit
For the payroll period commencing -March 25 and ending March 31, 1963, there
were 28 employees within the unit. It is stipulated by the parties that as of March 26,
20 employees in the unit, a majority, had signed cards authorizing the Union to
represent them for the purpose of collective bargaining.
3. The alleged refusal to bargain; other asserted interference, restraint,
and coercion "
a. Request for recognition
On March 25, 1963, the Union, over the signature of William Bradt, its repre-
sentative, wrote Respondent advising it that a majority of the employees in the unit
had designated it as their bargaining representative and requesting that Respondent
recognize the Union as such. The letter made no suggestion that the parties meet
or bargain, or any offer to prove a majority by showing union designation cards. On
756-236-65-vol. 147-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 29, prior to hearing from Respondent, the Union filed a representation peti-
tion 1 with the Board's Regional Office. On April 1, Bradt met with Wilbur Rice,
Respondent's president, in Rice's office where Betty Aldrich, his secretary, was also
present. Rice and Bradt discussed the Union's petition and the Board's procedures.
Rice, who was unfamiliar with the Act, asked Bradt what he could properly do and
what he should refrain from doing pending an election. Bradt accommodated by
telling him that he could state his views on unions to the employees so long as his
statements were factual and noncoercive. Rice, for his part, told Bradt that if the
employees wanted a union he would be glad to work with them but that he did not
think that a union was desirable in a plant as small as Respondent 's, and that the
plant was losing money. Bradt testified that at one point in the conversation Rice
said that he was going "to do everything within [his] power to keep the Union
out." Rice denied making this statement and he was corroborated by the testimony
of Aldrich. Moreover, this statement does not appear in either of two pretrial affi-
davits which Bradt made to the Regional Office, and is hardly consistent in its tenor
with other statements that Bradt admitted Rice made such as that he could get along
with the Union, if necessary, and that he had dealt pleasantly with a union where he
had just been employed before coming with Respondent. I find that Rice did not
make the statement in dispute.
After the meeting in the office Rice took Bradt on a tour of the plant and intro-
duced him to the plant foreman, and Bradt spoke with those employees whom he
knew as he went along.
After Bradt left, Rice went onto the floor of the plant and engaged James Hath-
away, an employee called by the General Counsel as a witness, in a conversation
which the complaint alleges is coercive. Hathaway's undisputed testimony is that
Rice asked him whether it was the old or the-new employees who wanted the Union,
and Hathaway replied that he did not know. At Rice's request Hathaway stepped
into the office where Rice asked -him why any of the employees should want a union.
When Hathaway answered "for security," Rice commented with there could not be
security in a plant which was losing money. Rice then showed Hathaway Respond-
ent's books which he pored over for some time. According to Hathaway's further
testimony Rice said that he thought that he could "give employees the benefits just
as well as the Union could," and that he "would treat us as individuals, and if the
Union came in he would treat us as a group," but that he "would go along with it."
I find these statements of Rice not violative of the Act.
b. The April 1 meeting of employees
On the afternoon of the day of Bradt's , visit Rice addressed the production and
maintenance employees assembled in the office, and told them about the receipt of
the Union's request for recognition. Asked by the General Counsel if he said that
he was personally opposed to the Union because it "could hamper operations," he
testified that he did and that he further said that in his opinion a union was not
necessary. He also admitted the truth of the General Counsel's accusation that he
said that he "wished [the employees] would give [him] more time to run the shop,"
without a union,2 and that he did not know until he received the Union's letter of
April 25, that there were some employees who were not happy with the way the
shop was run. This is the sum and substance of Rice's remarks, so far as they are
revealed by the record. From among them the General Counsel singles out the
remark that the Union "could hamper operations" for - special quotation and em-
phasis in his brief. I find it innocuous.
c. The April 23 meeting
Rice addressed another meeting of employees on about April 23, 1963. On
this occasion two employees rose to ask Rice if the rumor was true that Respondent
was going to cancel the Blue Cross-Blue Shield insurance program, the cost of
which was divided equally between Respondent and the employees, and substitute
in place of it an insurance policy with a $50 deductible feature .3 Rice replied that
several insurance companies had approached him on the matter, but that he had
no intention of changing the existing Blue Cross-Blue Shield program without the
employees first agreeing to it. By a show of hands those present indicated that
they wished to continue the existing program. Also at this meeting, Rice reported
1 Case No. 3-RC-3108.
'Rice came to Flomatic as its president less than a year before from Warren Wire
Company.
3 The testimony of several employees is that the subject of insurance was raised at the
April 1 meeting, rather than at the April 23 meeting. The precise date is immaterial.
FLOMATIC CORPORATION 1315
that he had signed an agreement for a consent election and that an election had
been set for May 2, when the employees could make their choice as to whether
they wanted the Union to represent them.
The General Counsel, in his brief, takes exception to Rice's permitting the em-
ployees to vote whether they desired to retain the Blue Cross-Blue Shield insurance
plan or change to a $50 deductible plan, and his "assuring them no changes would be
made without discussing it with them," since this "constitutes the giving of a benefit
as well as the promise of a future benefit, viz, that benefit derived from retention of
the existing plan. This is so . notwithstanding the employees in fact chose to retain
what they already had. It makes no difference that no strings were attached and
no threats were made to withdraw benefits [if] the employees persisted in supporting
the Union." To the extent that I understand, I disagree.
d. Letters to the employees
1. The letter of April 26
On April 26, 1963, Respondent, over Rice's signature, distributed copies of a let-
ter to the employees which was announced to be the first issue of a regular weekly
letter. In this he reported that at a meeting with representatives of the Board and
the Union he had signed a consent-election agreement and agreed that an election
would be held on May 2. The letter stated that a formal representation hearing
was not held "because the union men-and I had no disagreement ." These excerpts
are typical and about exhaust the news content of the letter. The General Counsel
has no fault to find with them, but he does maintain that an examination of this
letter, and a later one dated May 1, demonstrates that they are "replete with promises
of benefit . . . . Each letter manifests the perspicuous nature of the language
employed in promising several benefits to the employees ." With relation to the
April 26 letter this perspicacity is illustrated in the simple institution of the letter
itself-any letter. In his brief the General Counsel sets forth the following excerpt:
Recognizing that information about a business is of interest to its employees,
I started an employee "payroll letter" 4 at the Warren Wire Company many years
ago. This served as our main means of communication between management
and employees until the company newspaper was founded later on. This
letter was used to cover almost every topic which seemed to be of interest at the
moment and with this letter I am initiating the same program here at
Flomatic . . . . It is my desire that we both benefit by this payroll letter and
I hope that you will help me make this effort in "Communication" a two-way
street.
The brief sets out the above extract without rationalization. I do the same except
to express disbelief that the "benefit" to management and employees so hopefully
envisioned as the result of the publication of a periodic letter is such a benefit as
the Act proscribes.
2. The exchange of letters of May 1 and 2
The election took place on May 2 in the Respondent's office area, the polls open-
ing at 6:45 a.m., for a half hour before work. On the day before the election the
Union distributed among the employees a leaflet urging them to vote for the Union
and listing various demands which the Union would make of Respondent if it won
the election. Referring to Respondent's letter of April 26, the Union's leaflet said:
"Nowhere in Mr. Rice's letter does he state that he will correct the abnormal and
substandard pay rates and working conditions, in our plant, nor does he state that
in the future, without a Union, they will be lowered 5 even further." These polemics
were continued on election day by Rice who met the employees as they arrived at
the plant and handed them copies of a letter replying to the Union's'leaflet of the
day before. The letter took up the Union's list of demands seriatim and com-
mented on them. Nowhere in the leaflet do I find any actual or implied promise
of benefit or threat of reprisal. The following comment on the Union's general
demand for a pension plan goes as far in the direction of a reward as anything in
the leaflet: "At the moment, of course, Flomatic Corporation cannot afford a pen-
sion plan and you may be sure that I am.going to do my best to alter the situa-
tion"; unless it is the reply to the Union's unspecified demand concerning holidays:
"If more than six paid holidays becomes more or less standard throughout industry,
we shall certainly join the crowd."
Apparently so called because it was published on payday.
Respondent points out in its brief that perhaps the composer of the leaflet meant this
to read " they will not be lowered," etc.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently stung by the inference in the Union 's leaflet that Respondent "with-
out a union" could and would (or would not ) lower its pay rates , Rice's letter picks
this up and, brushing aside all negatives , single or double , says concerning overtime
pay: "We now pay time and a half for any time worked over 8 hours in any one
day and time and a half for any time worked over 40 hours in any one week. I be-
lieve this is a reasonable overtime pay schedule, but if you have any suggestions I
would welcome them . Without a union , they will not be reduced."
I am unable to find in Respondent 's letter of May 2 , any promise of benefit or
threat of reprisal. . Its utterance is protected under Section 8(c) of the Act.
e. The election
Rice continued the distribution of his letter up to a minute before the polls opened
on May 2. Bradt, . who was present, observed Rice's activity and immediately re-
ported it to the Board agent who was present . The election proceeded , however,
and the Union lost 19 to 7 . On May 8 Bradt, for the Union , filed objections to
the election based upon Rice's distribution of his letter the morning of the election.
At a meeting of Bradt, Rice, and a Board agent in the Regional Office on May 13,
Rice readily signed a stipulation setting aside the election and providing for a re-
run election to be held at the Board 's discretion . On May 23, however , the Union
requested to withdraw its petition , and the Regional Office granted this on June 3,
with prejudice.
Conclusions
I have found that Respondent, did not violate the Act by its speeches and letters
to employees , discussed above, including its letter of May 2. It may perhaps be that
by the distribution of that letter near the polls and up to the time of their opening,
Respondent violated a Board rule applicable to the conduct of elections . It does
not follow, however, that , this activity constituted an unfair labor practice, and I
find that it did not., Respondent cites Louis Aiello , et al., d/b/a Aiello Dairy
Farms, 110 NLRB 1365, as authority for the proposition that where a labor organi-
zation, with knowledge of alleged . unfair labor practices by an employer , neverthe-
less participates in a Board-conducted election , it may not thereafter resort to an
8(a)(5) proceeding based on the same unfair labor practices as a means of estab-
lishing its representative status. The Union had knowledge of all statements and
pamphlets issued by Respondent prior to the day of the election , and had ample
opportunity to withdraw its petition if it wished to do so. It might be said, although
I do not so hold , that it did not have sufficient notice of the circularization of em-
ployees on May 2 to enable it to make an election of remedies .6 I find it un-
necessary to decide this point since I find that this circularization did not constitute
an unfair labor practice . Hence, Aiello is not controlling . Regardless of Aiello,
I have found the Union's demand for recognition on March 25, 1963, did not in-
clude a request to bargain , and the Union admittedly at no time thereafter made
such a request . It is clear that it was content to abide the result of an election as
a means of establishing its majority . It is equally clear that the Union did not at
any time, either 'by Board certification or offer of union designation cards to Re-
spondent for count and verification of signatures , establish its majority status?
It follows that the allegation of the complaint that Respondent on and after
March 25, 1963, failed and refused to bargain with the Union , must be dismissed.
CONCLUSIONS OF LAW
1. The operations of Respondent , Flomatic Corporation , occur in commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
2. Lodge No. 1588 , International Association of Machinists , AFL-CIO, is a labor
organization within the meaning of the Act.
3. Respondent has not committed unfair labor practices within the meaning of
Section 8(a) (1) or (5) of.the Act.
RECOMMENDED ORDER
Upon the basis of the'foregoing findings of fact and conclusions of law , I recom-
mend that the complaint herein be dismissed.
6 Although Bradt, an experienced and knowledgeable union official , could have asked to
withdraw the Union 's petition . when . he protested Rice's activities.
7 See Barker's East Main Corporation, 142 NLRB 1194 . The facts in that case are
almost identical in most important respects with those in the instant case.