Garry Mfg. Co.

National Labor Relations Board - Board Decisions

May 24, 1979

242 N.L.R.B. 539 (N.L.R.B. 1979)

GARRY MANUFACTURING COMPANY
Garry Manufacturing Company and District 65, Dis-
tributive Workers of America. Cases 22-CA-7821
and 22-RC-7163
May 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On December 29, 1978, Administrative Law Judge
Karl Buschmann issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and a motion to supplement
the record;' the General Counsel filed a brief in sup-
port of the Decision of the Administrative Law Judge
and a memorandum in opposition to Respondent's
motion to supplement the record.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
We agree with the Administrative Law Judge's
findings of numerous and pervasive violations of Sec-
I Respondent's motion to supplement the record, based on its allegation
that the Administrative Law Judge's conduct of the hearing was prejudicial
and constituted a denial of due process, is hereby denied. As a preliminary
matter, this motion does not conform to the requirements of Sec. 102.37 of
the Board's Rules and Regulations, Series 8, as amended. We note that the
allegations of misconduct were not raised at the hearing or subsequent to the
hearing, until a Decision adverse to Respondent's interests issued. In addi-
tion, Respondent's allegations contained in the affidavit attached to its mo-
tion constitute nothing more than bare conclusionary statements which nei-
ther refer to specific instances of misconduct nor demonstrate specifically
how the alleged misconduct prejudiced its case; as such, Respondent's mo-
tion and supporting affidavit fall short of even a prima facie showing of
entitlement to any kind of relief. Moreover, we have carefully reviewed the
entire record in these proceedings and have independently evaluated the
findings of the Administrative Law Judge and are persuaded that his findings
of fact are adequately supported by the record and that they also properly
support his conclusions of law. Specifically, we would point out that for the
most part the findings and conclusions of the Administrative Law Judge are
based on the contents of written campaign literature admitted into evidence,
or are based on essentially undisputed record testimony. It is only with re-
gard to promises of wage increases to two employees, predicated on the
Union's defeat at the polls, that the Administrative Law Judge found it
necessary to resolve conflicting testimony. He credited the General Counsel's
witnesses over Respondent's witness and concluded that Sec. 8(a)(1) of the
National Labor Relations Act, as amended, had been violated. In so doing
he did not rely on demeanor but on corroborating testimony. We have in-
dependently evaluated the testimony of these witnesses and we conclude that
the testimony of the General Counsel's witnesses was not impeached and
was not mischaracterized, as Respondent contends, but that in all essential
aspects it adequately supports the findings and conclusions of the Admims-
trative Law Judge. See Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951).
2 The Administrative Law Judge inadvertently failed to conform his notice
with his recommended Order. We shall correct his notice accordingly.
tion 8(a)(1) and (3) of the Act and his conclusion that
a bargaining order is warranted to remedy these vio-
lations of the law and to "effectuate ascertainable em-
ployee free choice."3 It is clear from the record that
Respondent's unlawful conduct eroded the Union's
majority strength, established on the basis of union
authorization cards, and impeded the election process
with the result that the chances of holding a free and
fair election in the future are, in our view, extremely
remote.
The record demonstrates that Respondent, through
top level management officials, waged an incessant
and pervasive antiunion campaign which far ex-
ceeded permissible bounds of electioneering. Through
speeches to assembled groups of employees and ex-
tensive use of written campaign literature, Respon-
dent repeatedly drove home the message that, on the
one hand, unionization would threaten continued em-
ployment and job security and inevitably result in
strikes and violence while, on the other hand, rejec-
tion of unionization would result in improved benefits
and working conditions. As correctly found by the
Administrative Law Judge, this conduct constituted
clear interference with employees' Section 7 rights
and thus violated Section 8(a)(l) of the Act. It is
against this backdrop that we assess the impact of the
additional violations found on the Union's majority
and on the election process itself.
We view with particular significance Respondent's
unlawful punishment of active union supporters by
the imposition of more stringent disciplinary proce-
dures and the promise of improved wages to other
employees should the Union lose the election. This
combination of specific instances of unlawful conduct
was particularly coercive as it had the effect of con-
cretizing and exemplifying the very unlawful themes
conveyed by Respondent throughout the election
campaign by means of speeches and campaign litera-
ture.
We find the most significant single violation of the
Act, for purposes of imposing the bargaining order, to
be the creation of the "Garry Hot Line"-a special
telephone number that employees could call anony-
mously to address questions and suggestions to man-
agement. It is apparent from the record evidence, and
is in fact admitted by Respondent, that this device
was set up to solicit employee grievances. In response
to employee questions via the "Hot Line" Respon-
dent prepared a written memorandum listing ques-
tions and management's answers. This document con-
veyed a clear promise of improved benefits should the
Union be defeated. As we stated in Teledyne Dental
Products Corp.,4 such conduct evidences a deliberate
'N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969).
'210 NLRB 435, 436 (1974)
242 NLRB No. 94
539
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . course of action designed to convince the
employees that their demands will be met
through direct dealing with Respondent and that
union representative could in no way be advan-
tageous to them. Obviously such conduct must,
of necessity, have a strong coercive effect on the
employees' freedom of choice, serving as it does
to eliminate, by unlawful means and tactics, the
very reason for a union's existence.... [S]uch
conduct by its very nature has a long-lasting, if
not permanent, effect on the employees' freedom
of choice in selecting or rejecting a bargaining
representative.
Finally, we cannot take leave of this without men-
tion of Respondent's interference with the Board in-
vestigation in this case through a letter to employees
which mischaracterized the purpose of the Board's
investigation and actively discouraged employee co-
operation. The Administrative Law Judge found, and
we agree, that such conduct constitutes a clear viola-
tion of Section 8(a)(l) of the Act.5 Such conduct has
the direct effect of obstructing this Agency's perform-
ance of its proper legal function, denigrates its statu-
tory purpose, and undermines employee confidence in
this Agency's liability to protect employees' rights un-
der the Act. For this reason, Respondent's conduct
makes the holding of a free and fair election in the
future an extremely remote possibility.
Accordingly, in view of the cumulative impact of
Respondent's unlawful conduct, we conclude that a
bargaining order is both proper and necessary.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Garry Manufacturing
Company, New Brunswick, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
IT IS FURTHER ORDERED that the representation
election in Case 22-RC-7163 be set aside.
Florida Steel Corporation, 233 NLRB 491 (1977); Certain-Teed Products
Corporation, 147 NLRB 1517 (1964).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, it has been found that
we violated the law and we have been ordered to post
this notice. We intend to abide by the following:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represent-
ative of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all these things.
WE WILL NOT threaten you with loss of jobs,
plant closings, or relocation.
WE WILL NOT promise or grant benefits in or-
der to discourage you from voting for the Union.
WE WILL NOT solicit your grievances or com-
plaints and impliedly promise to adjust them in
order to interfere with your union activities.
WE WILL NOT issue disciplinary warnings to
our employees or otherwise discriminate against
our employees because they support the Union.
WE WILL NOT interfere with or impede the
investigating process of the National Labor Re-
lations Board.
WE WILL NOT refuse to bargain collectively
with District 65, Distributive Workers of Amer-
ica, as the exclusive bargaining representative of
our employees in the unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
above rights.
WE WILL, upon request, bargain collectively
with the above-named labor organization as the
exclusive representative of the employees in the
appropriate unit concerning wages, hours, and
other conditions.
WE WILL expunge from the employment rec-
ords of Veronica Taratko and Dorothy Dickhut
all disciplinary warnings which the National La-
bor Relations Board found unlawful.
GARRY MANUFACTURING COMPANY
DECISION
STATEMENT OF THE CASE
KARL BUSCHMANN, Administrative Law Judge: This case
arose upon charges filed by District 65, Distributive Work-
540
GARRY MANUFACTURING COMPANY
ers of America (the Union) which resulted in a complaint
issued August 31, 1977, charging the Respondent with vio-
lations of Section 8(a)(l) and (3) of the National Labor
Relations Act (The Act). The complaint was amended on
December 6, 1977, based upon additional charges filed by
the Union.
Respondent, Garry Manufacturing Company, New
Brunswick, New Jersey, filed an answer on September 8,
1977, denying the substantive charges of the complaint and
raising affirmative defenses to the complaint.
A hearing on the allegation in the complaint was held on
December 6, 7, 8, 9, and 13, 1978. Both sides filed briefs on
March 15, 1978. Respondent filed a reply brief on March
24, 1978, which was opposed by General Counsel on March
27, 1978.' By letter of March 28, 1978, General Counsel
requested that judicial notice be given to C & T Manufac-
turing Company, 233 NLRB 1430 (1977) in the event that
Respondent's reply brief is accepted.
Upon the entire record in this case, including the briefs
filed by counsel and General Counsel's letter of March 28,
1978, and from my observation of the witness I make the
following findings of fact and conclusions of law.
FINDINGS OF FACT
Respondent, Garry Manufacturing Company, is a New
Jersey corporation with its principal office and plant lo-
cated at 1010 Jersey Avenue, New Brunswick, New Jersey.
It is admittedly engaged in the manufacture, sale and distri-
bution of electronic component parts and related products
in commerce within the meaning of Section 2(6) and (7) of
the Act.
District 65, Distributive Workers of America (the Union)
is admittedly a labor organization within the meaning of
Section 2(5) of the Act.
The Union began an organizational campaign at Garry
in late April in response to an oral inquiry by Veronica
Taratko, a Garry employee. On Friday, April 29, 1977, a
meeting was held between Veronica Taratko, Nancy Gall,
and Dorothy Dickhut, all employed by Garry Manufactur-
ing Company, and two union representatives, Robert
Mihalko and Robert Cardinale. During that meeting the
three employees signed union cards and discussed with the
union representatives the procedure for a union drive at
Garry. On Monday, May 2, 1977, the employees com-
menced to distribute union cards among the rest of the em-
ployees. They campaigned among the employees on behalf
of the Union but attempted to hide this activity from man-
agement. The Union obtained approximately 90 signed
cards from Garry's 130 production and maintenance em-
ployees. On May 17, 1977, Robert Cardinale, the Union's
manager, met with Rudolph Koppel, president, and his son
Harry Koppel, executive vice president, and requested that
the Union be recognized as the bargaining agent on behalf
of Garry's employees. Rudolph Koppel, however, re-
sponded: "We do not recognize you do what you have to."
Thereafter, the Company waged a vigorous campaign op-
posing the Union's efforts to gain recognition as the em-
ployees' bargaining agent.
General Counsel's motion to strike Respondent's reply brief is denied.
Based upon a Stipulation for Certification Upon Consent
Election signed May 31, 1977, an election was held on June
29, 1977. By vote of 67 to 46 out of a total of 113 valid
votes, the Union was defeated. Following the filing of ob-
jections to the election and Respondent's answers thereto,
the Union on July 22, 1977, filed charges with the National
Labor Relations Board alleging that the Company had en-
gaged in conduct violative of Section 8(a)(1) and (3) of the
Act.
On August 31, 1977, the Board issued a complaint (in
Case 22-CA-7821) charging the Respondent with unfair
labor practices and an order consoiidating that case with
Objections to the Election (in Case 22-RC-7163). In sub-
stance, it is alleged that during its campaign against the
Union's organizational attempt, Respondent has gone be-
yond the bounds of permissible conduct and engaged in
unfair labor practices which unfairly prejudiced the election
results.
I. RESPONDENT'S CAMPAIGN LITERATURE
Respondent conceded that it conducted a vigorous cam-
paign against the Union's organizational drive. The record
contains numerous bulletins and letters which the Com-
pany had distributed to its employees and in which it ex-
pressed its anti-union position. In addition, management
made speeches to the employees discussing the Union. For
example, a letter, dated May 23, 1977, from the "The Man-
agement" warned the employees (G.C. Exh. 108):
REMEMBER, NO UNION CAN PROTECT YOUR
JOBS.
AS YOU KNOW, GARRY IS ACCEPTING MANY
SMALL AND UNDESIRABLE ORDERS, TO
KEEP YOU FULLY EMPLOYED. ONLY MAN-
AGEMENT, BY ITS CONTINUED EFFORTS,
ESPECIALLY IN THESE VERY DIFFICULT
TIMES, CAN PROTECT YOUR JOB SECURITY.
NO UNION CAN GIVE YOU THIS PROTEC-
TION.
In a speech. given one week before the election, Koppel
emphasized job security and stated, inter alia, (G.C. Exh.
107(a)):
JOB SECURITY.
NO UNION CAN GIVE YOU JOB SECURITY....
NOW LET US TALK ABOUT REAL JOB SECU-
RITY. REAL JOB SECURITY MEANS A PAY
CHECK EVERY WEEK, AN EXCELLENT IN-
SURANCE PROGRAM ...
SOME COMPANIES, SIMILAR TO OURS IN
SIZE, THAT WERE ORGANIZED BY UNIONS
FOUND THAT THEY COULD NOT COMPETE
AND IN ORDER TO SURVIVE THEY MOVED.
MOST OF US REMEMBER THAT MACK
TRUCK, AMONGST OTHERS, LEFT OUR AREA
SOME TIME AGO.
In a reply to two union leaflets, Rudolph Koppel told the
employees (G.C. Exh. 112):
ONLY GARRY CAN AND WILL PROTECT
YOUR JOBS AND YOUR FUTURE AND YOUR
STEADY PAYCHECKS. UNLIKE THE UNION,
541
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BY LAW I AM PROHIBITED TO MAKE SPE-
CIFIC PROMISES. AFTER WE WIN THE ELEC-
TION WE WILL DISCUSS TOGETHER OUR FU-
TURE OPENLY AND FRANKLY WITHOUT
INTERFERENCE OF OUTSIDERS. I AM SIN-
CERELY INTERESTED IN OUR FUTURE AND
WILL NOT DISAPPOINT YOU.
In a flyer entitled "It Could Happen Here" the company
warned of strikes and violence if the Union were elected at
Garry. Listing several instances of violence as reported in
local papers, the document warns: "If you want the threat
of strikes and violence and constant turmoil in our plant,
vote for District 65" (G.C. Exh. 105; see also: G.C. Exh.
115(a)). In another letter addressed to the employees. Harry
Koppel poses, among others, the following rhetorical ques-
tion: "How are they [the Union] going to win improve-
ments without a strike" (G.C. Exh. 104). Yet in another
open letter, dated June 28, 1977, the management of Garry
Manufacturing Co. stated (G.C. Exh. 113):
ARE YOU ORGANIZING YOUR PLANT OUT
OF A COMPETITIVE POSITION?
ARE YOU ORGANIZING YOURSELF OUT OF
REGULAR EMPLOYMENT AND LIBERAL
OVERTIME?
Don't Experiment!
DO NOT GAMBLE with your secure jobs, your fu-
ture benefits, and that steady pay check.
Your company will strive for continued improve-
ments.
Finally, among Garry's numerous pieces of antiunion lit-
erature was a letter drafted by an employee but distributed
to the employees by Garry's management which, inter alia,
hypothecated that the Company-if forced to bargain with
the Union-would offer no more than what it presently
offers to its employees and that a consequence would be a
defeat of the Union after one year. The other alternative
would be to strike. It concluded by stating that the Koppels
"have alluded to improvements in the future if they were
given a chance." (G.C. Exh. 103(a)).
Although quoted out of context above, the cumulative
effect of the often repetitive statements clearly represented
to the employees, (1) that unionization would mean a loss
of employment, security and overtime work: (2) that it
would lead to strikes and violence and (3) that only a defeat
of the Union would result in certain benefits and improve-
ments in working conditions of Garry.
In appraising campaign propaganda of the type summa-
rized above, it is often necessary to overlook some of the
exaggerations and slight inaccuracies expressed by the em-
ployer because of his right to free speech and his right to
wage a vigorous campaign agains a union drive. At the
same time, employees have a right to make a choice, either
for or against a union, freely and fairly. An employer may
make predictions of the effects which unionization will have
upon his company. But such predictions must be based
upon an employer's reasonable, honest and demonstrable
belief. However, if the campaign rhetoric contains misrep-.
resentations which have a tendency to coerce or threaten
employees or which may reasonably be expected to have
had a serious or significant impact on the election, it may be
set aside by the Board. Of particular significance are an
employer's threats, promises of benefits, loss of benefits, or
other conduct which interferes with an employee's right of
free choice.
The overall impact of some of Respondent's campaign
rhetoric as summarized above has been seriously to inter-
fere with the employees' right of free choice. It had a ten-
dency to coerce and threaten them to the extent that they
probably felt constrained to vote against the Union. Such
statements, particularly when coupled with certain other
practices detailed below, constituted violations of the em-
ployees' rights protected by Section 7 of the Act, in viola-
tion of Section 8(a)( ) of the Act.
II. OIHER UNION RILArED (ONDUCT
A. The Movement of Plant Machinero
The record further shows that on June 20, 1977, during
the union campaign and shortly prior to the election, the
Company removed certain machinery and equipment out
of its Brunswick plant for purpose of storage and relocation
to other plant locations. This move caused considerable ap-
prehension among the employees about Garry's intentions
of continuing its operations at the Brunswick location. For
example, employee Dorothy Dickhut testified as follows as
to what she observed when the machinery was moved: "I
saw panic, I saw fear. People came to me with questions
and statements as to why the machinery was being moved."
It is uncontested that about 15 pieces of equipment includ-
ing several heavy machines, were moved out by riggers,
specially employed for this task, and that the move was
made without a prior announcement or any subsequent ex-
planation by management. With one exception, it was the
largest single move undertaken by Garry.
The record contains extensive testimony by company of-
ficials as to the reasons for the move. Generally. Respon-
dent has shown that the moving of machinery from one
plant to another was made for legitimate business reasons.
However, the record does not show why the move was nec-
essary at precisely the point in time both, the Union and the
Company, were campaigning for the votes of the employees
shortly prior to election. Moreover, as already stated, the
Company did nothing to allay the employees' apprehension
engendered by the sudden moving of machinery at such
critical time.
Respondent's conduct in timing the move of the machin-
ery to coincide with the union campaign conveyed to the
employees the economic power of the employer in realistic
and concrete terms which, in conjunction with the constant
and repetitive allusions to job security, plant closure or
plant relocation in their campaign literature, had a threat-
ening and coercive effect on the employees.
B. Promises of Benefits
Similarly, the veiled promises of benefits contained in Re-
spondent's literature were reinforced by promises of specific
benefits and the granting of benefits. For example, even
542
GARRY MANUFACTURING COMPANY
though the Union had scheduled its final organizational
meeting for June 26, 1977, Repondent decided to schedule
an employee outing to Great Adventure Amusement Park
for the same day. The record shows that in early April 1977
a salesman from the Great Adventure Amusement Park
contacted Garry's management and that on April 13, 1977,
a salesman briefly met with Harry Koppel to discuss the
various programs which Great Adventure offered on a
group discount basis. Great Adventure sent information
and brochures to Garry.
Some time in late May 1977 Harry Koppel called Wil-
liam Tantum of Great Adventure requesting a meeting to
discuss a group outing. On June 6, 1977, Tantum and Kop-
pel met, they discussed the various options and finally
agreed to an outing to be held on June 26, 1977, for the
employees at Garry's Brunswick location. The program of-
fered all employees free admission to the Park and a lunch
at Company's expense.
On June 8, 1977, Koppel called Tantum and informed
him that for legal considerations he wanted to cancel the
June 26 outing to be rescheduled for a later date. The can-
cellation request by Koppel was followed up by letter of
June 8, 1977.
Nonetheless, on June 24, 1977, Koppel decided to go
ahead with the original agreement signed on June 6, 1978,
and to offer his employees a free day with a buffet lunch at
Great Adventure. On that day, June 24, Garry posted no-
tices informing all employees of the program. This was the
first time that employees were notified of the outing and the
only time in the Company's history that Garry had made
this benefit available to its employees. Moreover, this was
done even though in early June the Union's organizing
committee had scheduled its final organizational meeting
for June 26, 3 days prior to the election set for June 29,
1977. All employees had therefore been notified in early
June by bulletins and word of mouth of the union meeting
on June 26, 1977.
To be sure, employees who wanted to take advantage of
the Great Adventure outing were not prevented from also
attending the union meeting set for 6 p.m. in the evening,
and the record reflects that some employees did attend both
functions. Nevertheless, the record shows that Respondent
carefully calculated the timing of the outing to coincide
with the union meeting. First, Respondent decided in the
latter part of May-well after May 17th when the Union
made its request for recognition-that it wanted to offer the
outing to Great Adventure, a benefit which theretofore had
not been made available to the employees. Secondly, Re-
spondent was obviously aware that the Union meeting was
set for June 26, yet Koppel, having initially contemplated
the cancelling of the outing for June 26, decided to let the
dates coincide. It is well established that the timing in-
volved in the granting of a benefit to employees can be of
great significance in determining the impact of such actions
on the employees. N.L.R.B. v. Exchange Parts Company,
375 U.S. 405 (1964).
In addition, Respondent made selected promises of wage
increases. For example, on the day of the election, Dorothy
Dickhut saw Joseph Weresow, a supervisor, approach
Erika Eordos, an employee while she was working on her
machine and overheard him mention to her that she would
get a 20 cent raise if the Union did not get in. Similarly,
about a week prior to the election, Weresow talked to
Sarolta Gruber and stated that Mr. Koppel would give
them more money, about 20 cents or more in the event the
Union would be unsuccessful. Specific promises of pay
raises in conjunction with the campaign literature insinuat-
ing improvements in working conditions were a powerful
tool in dissuading employees from voting for the Union.'
C. The Garry Hot Line
In late May 1977, when Rudolph Koppel became ill with
phlebitis, the Company distributed a memorandum to its
employees, which, in substance, explained that by dialing a
certain telephone number employees were entitled to ex-
press their concerns anonymously, and that replies to any
such questions would be distributed by special memoran-
dum (G.C. Exh. I 10a). The memorandum begins as fol-
lows:
Here's your chance to ASK YOUR QUESTIONS
AND GET ANSWERS FROM ME REGARDING
UNION ACTIVITIES AND A.NY'THING ELSE
ABOUT THE COMPANY'. We are calling it "THE
GARRY HOT LINE."
The questions you ask and the answers to these ques-
tions will be distributed throughout the plant by spe-
cial memo. No one will know who a.vked the questions.
It then describes how to use the special telephone and
concludes:
I feel it is extremely important that you ask questions
and know all thejlcts. Please do not hesitate to use the
special phone as often as you wish. IT IS FOR YOU'
TO USE.
The reason for the Garry Hot Line was explained by
Rudolph Koppel as tollows: "When I was sick I felt I
2 Although Weresow denied having talked to the two employees about the
raise, I credit the testimony of employees Gruber and Dickhut, since it was
corroborated by the testimony of Veronica Taralko, another employee.
Although General Counsel has demonstrated that Respondent granted
the employees an additional paid holiday shortly after the employees began
their union campaign, the record does not establish that Respondent had
knowledge of it. More specifically, on May 6. 1977. a notice, pixsted at Garry.
informed the employees that they were getting an additional paid holiday on
George Washington's Birthda) Extensive testimony dealt with the decision-
al process of the Company, particularly as to whether it knew of the union
drive at the time the decision was made. General Counsel asserts, without
evidentiary support. that the Company had known of the union drive prior
to May 6. 1977 because several employees had solicited on behalf of the
Union. Respondent argues that the decision was hased upon the efforts of its
supervisor) employee, Anne Fisco, who had requested Harry Koppel to
grant George Washington's Birthday as an additional holidas for the em-
ployees.
There is no record of evidence which indicates or from which it may be
inferred that Respondent had any knowledge of the union campaign prior to
May 17. 1977 when Cardinale and Mihalko met with the Koppels and re-
quested to be recognized. Indeed, one of the three employees wvho led the
union drive, Dorothy Dickhut testified: "We decided to get signatures. pass
out cards, talk of the union, discuss the Union in private. without manage-
ment's knowledge.' Accordingly, I find that Respondent's decision to add
George Washington's Birthday into a paid holidaly for the employees was
not motivated by union considerations.
543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would like to communicate with our people as the union
drive was on. I had always very good relations with our
people. I couldn't speak to them. I wanted to hear if there
are any complaints or suggestions so I could answer them at
least in writing as I couldn't be present at the factory [Em-
phasis supplied.]" As a direct result of this device, Respon-
dent distributed several memoranda, the contents of which
deal almost exclusively with the subject matter "union."
Respondent essentially argues that the Garry Hot Line
was simply a device which enabled Respondent's president
to communicate with his employees which he otherwise was
unable to do because of his illness. To be sure, this may
have been one of Respondent's motives, but it is clear that
in its notice to the employees, Respondent has urged them
to use the device. Its very creation at such a critical time
conveyed to the employees that the Company had a great
concern for them, and it represented an implied promise to
improve their working conditions further. For example, in
one of the answers to a Garry Hot Line question, Respon-
dent stated (G.C. Exh. Illa): "Unfortunately, during an
organizational drive, I am prohibited from discussing any
plans we have for adding optical coverage or improving
dental care or about any other changes in our overall bene-
fit plan. After you vote NO on June 29, I can speak freely."
This statement, made in response to a question seeking cer-
tain medical insurance coverage, implicitly promised that
improvements in the insurance coverage would be made if
the Union were defeated.
Solicitation of employees' complaints and grievances and
the implied promise to adjust them during the union drive
is in violation of Section 8(a)( ) of the Act. Ken McKenzie's,
Inc., 221 NLRB 489, 492 (1975).
D. Discriminatory Conduct
Finally, the record contains several instances of discrimi-
natory conduct by Respondent against union activists. In
May 1977, Dorothy Dickhut, while distributing union lit-
erature near the Company's offices, was approached by Su-
pervisor Weresow and asked whether she knew what she
was doing. She replied, "[y]es, I do. I'm a turtle. I have to
stick out my head to get anywhere." He replied, "just make
sure you have a neck to pull back when all this is over." In
his testimony, Weresow admitted that such a conversation
occurred but maintained that his reply was simply, "It's
your neck." Irrespective of which comment Weresow actu-
ally made, it shows he was well aware of Dickhut's union
efforts when, on June 15, 1977, he handed her and fellow
campaigner Toratko disciplinary warnings for absenteeism
with the comment: "When a union gets in we are going to
have strict rules around here so I might as well start right
now." These warnings stated (G.C. Exhs. 117, 116a): "You
were absent on Tuesday, June 14, 1977, [Monday, June 13,
1977, respectively] and did not call in. This is a serious
violation of our company policy and must not be repeated."
While, as Respondent argues, Respondent may have
been justified in criticizing Dickhut and Taratko for being
absent without calling in, the record shows that this was the
first time written warnings were handed out to the employ-
ees even though they had been absent on several prior occa-
sions. Accordingly, it is clear that Respondent had changed
its attitude toward both Taratko and Dickhut because of
their union efforts.
Similarly, on June 23, 1977, Weresow issued a "write-up"
to Taratko for poor work (G.C. Exh. 116b). The warning
simply stated that she had been producing unacceptable
parts for a couple of days and admonished her to take cor-
rective action to prevent the discrepancy in the future.
While she had been considered one of the best employees,
Respondent claimed that Taratko's and Dickhut's preoccu-
pation with the Union and long secretive meetings in the
bathroom prevented them from discharging their duties sat-
isfactorily. Of significance was Weresow's remark to
Taratko when he handed her the warning slip. He stated:
"You want to play little union games, I'll play little union
games." On June 29, the day of the union election, he re-
marked that she had only a week or two left with the Com-
pany even if the Union would get in.
Weresow admitted in his testimony that prior to this time
he usually gave oral warnings to the employees and tried
not be too formal by issuing written reprimands because he
wanted to stay on a friendly basis with them. But when
during the campaign, according to Weresow, they distrib-
uted the place and became irresponsible "with their bath-
room meetings and they walk way from their machines,
they were talking to other people, disrupting other people,"
he decided to give a warning in writing rather than verbal
in order to be more effective. Clearly then, Respondent's
conduct, in issuing written warnings to Taratko and Dick-
hut showed that they were singled out because of their
union activities in violation of Section 8(a)(3) of the Act.
E. Obstruction of Board's Investigation
In an open letter, dated November 17, 1977, and distrib-
uted to all employees, Garry warned that an NLRB repre-
sentative had contacted several employees in preparation of
the formal, administrative hearing and advised them that
they had no obligation to cooperate with the Board agent.
Of particular significance is a statement in the third para-
graph of the letter which stated: "We want you to know
that you are not obligated to talk to the agent or sign any-
thing," and the last paragraph of that letter which states as
follows (G.C. Exh. 118):
The N.L.R.B. agent is not interested in the results of
the prior vote (June 19, 1977) or that you may not
want District 65 to represent you now. He only wants
your signature in order to force Garry to recognize
District 65 as your bargaining agent. Again, you are
not obligated to talk to the agent or sign anything.
At first blush such statements may seem innocuous. Yet
it is obvious that Respondent's explanation for the presence
of the Board agent and his function is somewhat distorted,
for the duty of any Federal investigation includes his obli-
gation to ascertain the true and accurate facts surrounding
the controversy. Yet Respondent depicted the function
one-sidely-as only being concerned with facts supporting
the complaint, irrespective of their truth or falsity. More-
over, Respondent's further instruction that employees have
544
GARRY MANUFACTURING COMPANY
no obligation to talk to a Federal investigator or sign any-
thing is patently erroneous. Not only is it the duty of every
citizen to cooperate with the lawful investigation of any
governmental agency, but also the failure to comply with a
subpoena or other formal requests for information mandat-
ed by statute or regulation can lead to the arrest of the
recalcitrant party.
I have no difficulty in finding Respondent's statements to
be violative of Section 8(a)(1) of the Act for the reasoning
set forth in Certain-Teed Products Corporation, 147 NLRB
1517, 1520-21 (1964); Bryant Chucking Grinder Company,
160 NLRB 1526, 1562 (1966) 4
F. Bargaining Order
General Counsel has urged that under N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969), a bargaining order
should issue in this case because Respondent had engaged
in serious unfair labor practices which interfered with the
election process and which tended to preclude the holding
of a fair election. Respondent argues that even if violations
of Section 8(aXl) and (3) of the Act are found, they are not
sufficiently serious as to warrant a bargaining order.
The principle is well established that a bargaining obliga-
tion may be found to exist, even though the employees had
rejected the Union as their bargaining agent in an election.
Such a duty arises when it can be shown (1) that at one
point the Union had a majority status and (2) the employ-
er's unfair labor practices were extensive or pervasive and
likely to have dissipated the Union's majority status.
The record contains the definition of the appropriate bar-
gaining unit, as well as the approximate number of the em-
ployees in that unit. The unit is described as "[a]ll produc-
tion and maintenance employees including shipping and
receiving employees employed by the Employer at its 1010
Jersey Avenue, New Brunswick, New Jersey location, but
excluding all office clerical employees, guards and supervi-
sors as defined in the Act." (Resp. Exh. 2). The approxi-
mate number of eligible voters amounted to 130 employees
(Resp. Exh. 3). It is further uncontested that a demand for
recognition was made by District 65 on May 17, 1977, and
denied on the same day by Rudolph Koppel. On that date,
the Union had attained already 73 signed authorization
cards. Ultimately 90 cards were signed which are contained
in the record (G.C. Exhs. 2-102). These cards, introduced
by General Counsel, were obtained from witnesses who tes-
tified to having passed them out to the employees, observed
them sign the cards, and received the signed authorization
cards from the particular employees. In those instances
where the actual signing of the cards was not directly ob-
served by a witness, General Counsel offered the signatures
of these employees as contained on cancelled checks or
"W-4" forms and the testimony of a handwriting expert
who compared the respective signatures. Clearly all cards
have been amply validated on the record, and they consti-
' On June 24, 1977, while addressing the employees assembled in the cafe-
teria, Harry Koppel, referring to Susan Venuto, a Garry employee, stated:
"If the Union gets in, the people have you to thank, Sue." General Counsel
argues that the remark was meant to hold Venuto up for ridicule and dispar-
aged her for her union support.
However, I find the remark to fall short of any volation of Section 8(aX 1)
of the Act.
tute reliable indicia of majority status among the employees
in the bargaining unit.
Of paramount and remaining concern is whether Re-
spondent's unfair labor practices were significant and per-
vasive enough to have had a significant impact in the elec-
tion process. In this regard I find that Respondent's unlaw-
ful conduct, including the implied threats of loss of jobs or
the inevitability of strikes and promises of benefits ex-
pressed in the campaign statements, compounded by the
timing of the removal of certain machinery, specific prom-
ises of wage increases, the Company sponsored outing to an
amusement park, as well the Garry Hot Line, and the dis-
criminatory write-ups to known union supporters, had such
a prevasive and significant effect on the election process so
as to deprive the employees of their right to freely select or
reject a bargaining representative. Particularly effective
were the campaign statements, most of which came from
top management, namely Rudolph or Harry Koppel. The
Garry Hot Line involved both Koppels, and the amuse-
ment park benefit was directly negotiated by Harry Koppel.
High management involvement to such an extent was cer-
tainly significant and substantial. I have no difficulty in
concluding that the employees' sentiment expressed by a
vast card majority must be protected by a bargaining order.
In view of Respondent's unlawful conduct immediately
upon the Union's request for recognition on May 17, 1977,
the bargaining obligation commenced as of that time. Trad-
ing Port, Inc., 219 NLRB 298 (1975).
Findings On Objections
In view of my findings concerning the unfair labor prac-
tices committed by Respondent which (with the exception
of certain conduct relating to the obstruction of the Board's
investigation) are the same as, or similar to, the objections
to the election in Case 22-RC-7163, I find that Respon-
dent's conduct precluded the holding of a free election and
that the election should be set aside.
CONCLUSIONS OF LAW
I. Garry Manufacturing Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. District 65, Distributive Workers of America, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
3. By impliedly threatening employment security, the in-
evitability of strikes and violence, and promises of benefits
in its campaign rhetoric, Respondent has violated Section
8(a)(l) of the Act.
4. By causing a large scale movement of plant machinery
to coincide with campaign slogans emphasizing plant clos-
ings and plant relocation, Respondent violated Section
8(a)(1) of the Act.
5. By promising wage increases to certain employees if
the Union did not get in and by granting an employee out-
ing, including free lunch and free admission to an amuse-
ment park. on the day of a union meeting, Respondent vio-
lated Section 8(a)(l) of the Act.
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By creating the Garry Hot Line for the purpose of
soliciting employee complaints with the implied promise to
adjust them constituted a violation of Section 8(a)(1) of the
Act.
7. By issuing disciplinary warnings to selected employees
because of their union support, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
8. By discouraging its employees from cooperating with
the lawful investigation conducted by Board agents, Re-
spondent violated Section 8(a)(1) of the Act.
9. By having engaged in pervasive and significant unfair
labor practices during the union campaign immediately af-
ter the union's request for recognition as the employers'
bargaining agent and the unfair labor practices having dis-
sipated the Union's majority status which had been
achieved when a large majority of the employees in the
appropriate bargaining unit had executed union authoriza-
tion cards, a bargaining order is necessary to remedy past
election damage and to deter further misconduct.
10. The aforesaid practices are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II1. All other allegations in the complaint have not been
sustained.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)( ) and (3) of the Act, I
recommend that Respondent be ordered to cease and desist
from its unlawful practices. I further recommend, for the
reasons stated in this decision, that an affirmative order is-
sue directing that Respondent bargain with the Union upon
request and, if an understanding is reached, embody such
understanding in a signed agreement.
ORDER 5
The Respondent, Garry Manufacturing Company, New
Brunswick, New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with loss of jobs, plant
closings or relocation, and the inevitability of strikes and
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
violence in the event that they selected the Union as their
bargaining agent.
(b) Promising and granting benefits to the employees in
order to dissuade and discourage them from voting for the
Union.
(c) Soliciting complaints and grievances from the em-
ployees and impliedly promising to adjust the grievances
for the purpose of interfering with the employees' union
activities.
(d) Issuing disciplinary warnings or otherwise discrimi-
nating against employees because of their support of the
Union.
(e) Obstructing or impeding the investigating procedures
of the National Labor Relations Board.
(f) In any other manner interfering with or coercing its
employees regarding the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative of
the employees in the appropriate unit concerning wages,
hours, and other conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(b) Expunge from personnel records of employees Ve-
ronica Tarato and Dorothy Dickhut all disciplinary repri-
mands found to be unlawful herein, and make them whole
for any loss of seniority or employment status as a result of
the reprimands.
(c) Post at its Brunswick, New Jersey, facility copies of
the attached notice marked "Appendix." 6 Copies of said
notice on forms provided by the Regional Director for Re-
gion 22 after being duly signed by Respondent's represent-
ative shall be posted by it immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
6 In the event that this Order is enforced by a Judgment of a United States
C'ourt of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
labor Relations Board."
546