Glar-Ban Corp.

National Labor Relations Board - Board Decisions

Sep 6, 1968

172 N.L.R.B. 1861 (N.L.R.B. 1968)

GLAR-BAN CORPORATION
Glar-Ban Corporation and District Lodge 76, Local
#1053, International Association of Machinists
and Aerospace Workers, AFL-CIO. Case
3-CA-13370
September 6, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On June 4, 1968, Trial Examiner David S. David-
son issued his Decision in the above-entitled
proceeding finding that the Respondent had_ en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act, as amended, and recommending that it
cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that Respon-
dent had not engaged in certain other unfair labor
practices alleged in the complaint and recom-
mended that the allegations pertaining thereto be
dismissed. Thereafter the General Counsel filed ex-
ceptions to certain portions of the Decision of the
Trial Examiner and a supporting brief. The Respon-
dent filed cross-exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Glar-Ban Corporation,
Buffalo, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
i Exceptions have been taken to some of the credibility findings of the
Trial Examiner which were based to a large extent on demeanor of wit-
nesses It is the Board's policy, however, not to overrule a Trial Examiner's
172 NLRB No. 222
1861
resolutions with respect to credibility unless , as is not the case here, the
clear preponderance of all the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544,
enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to
charges filed on November 20, 1967, and amended
on January 24, 1968, by District Lodge 76, Local #
1053, International Association of Machinists and
Aerospace Workers, AFL-CIO, hereinafter
referred to as the Union, a complaint issued Janua-
ry 29, 1967, alleging that Respondent violated Sec-
tion 8(a)(I) of the Act by interrogating employees,
offering or promising benefits, threatening reprisals,
and encouraging employees to form their own com-
mittee to negotiate with Respondent. The com-
plaint also alleges that Respondent violated Section
8(a)(3) and (1) of the Act by laying off or
discharging Sylvester English, Dominic Tripoli, and
John Hoffman on November 17, 1967, and that
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing since November 7, 1967, to bargain
with the Union as the representative of its produc-
tion and maintenance employees. In its answer
Respondent denies the commission of any unfair
labor practices.
A hearing was held before me in Buffalo, New
York, on March 11 and 12, 1968. At the close of
the hearing oral argument was waived and the
parties were given leave to file briefs which have
been received from the Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, maintains
its principal office and place of business at Cheek-
towaga, New York, where it is engaged in the
manufacture, sale, and distribution of aircraft
lighting and instrumentation systems and related
products. During the year preceding issuance of the
complaint, in the course of its operations Respon-
dent manufactured, sold, and distributed products
valued in excess of $200,000, of which products
valued in excess of $100,000 were shipped from
said plant directly to points located outside the
State of New York. I find that Respondent is an
employer engaged in commerce within the meaning
of the Act and that assertion of jurisdiction herein
is warranted.
II. THE LABOR ORGANIZATIQN INVOLVED
District Lodge 76, Local #1053, International
Association of Machinists and Aerospace Workers,
1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, is a labor orgainzation within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(1)
1. The facts
Some time before November 6, 1967, Sylvester
English, an employee of Respondent at its Kennedy
Road plant, the only plant here involved, contacted
Union Representative Nelson Duerr and told him
that the employees in the plant wanted to be or-
ganized. Duerr explained that they would have to
obtain signatures on authorization cards from more
than 50 percent of the employees and that
thereafter Duerr would call a meeting of the em-
ployees. Duerr volunteered to deliver blank cards
to English's home which he did. On Monday,
November 6, English took the cards to work with
him, and several employees signed cards that morn-
ing.
On that day in the late afternoon, John R. Burke,
Jr., Respondent's general manager, called the em-
ployees in the shop together and spoke to them.'
Burke explained that Respondent had suffered
some losses and had run up a deficit of $18,000
since the beginning of the current fiscal year in
May. He told the employees that they would have
to try to improve the Company's position. Burke
described several improvements in fringe benefits
but said that with two exceptions, they would not
become effective until the Company started to
show a profit and the board of directors approved
them. These benefits were an income protection
plan and group life insurance , and improved vaca-
tion plan , paid death leave, and time and a half for
time worked in excess of 8 hours in I day. All of
these represented additions to existing benefits.2
Burke told the employees that there would be a
projected trim in some areas where they were
heavy with personnel but did not state any more
specifically what he had in mind.3 He also told the
employees that the rejection rate of Respondent's
products by its customers had shown some im-
provement but was still too high, that overtime
work had been excessive, and that both were con-
tributing to Respondent's deficit and would have to
be eliminated or cut down as much as possible.
Burke told the employees that if the Company con-
tinued to operate at a deficit, the projected benefits
would not become effective. After he finished
speaking, a few questions were asked by employees
about holidays and a Christmas bonus. As to the
latter, Burke answered that he did not know
whether there would be a Christmas bonus,
although there had been one in the past.4
The Union was not mentioned by Burke at this
meeting, and, according to Burke, he was not aware
of the employees' organizational activities at the
time of the meeting.
During the week following this meeting em-
ployees continued to sign authorization cards for
the Union and by the end of the following Monday,
November 13, as set forth more fully below, 14 of
the 20 employees then on the payroll had signed
cards.
English collected all the signed cards and mailed
them back to Union Representative Duerr with a
letter which Duerr received on or about November
15, requesting a Friday night meeting of the em-
ployees. After a telephone conversation with En-
glish on November 15, Duerr set a meeting date for
Friday, November 24.
On the morning of November 15, Production
Manager William McArthur approached employees
John Wilson and Dominic Tripoli, who with English
had been instrumental in contacting the Union, and
told them that he wanted them and another em-
ployee, Connie Nelson, who was also an early sup-
porter of the Union, to come to Burke's office." As
Nelson was not at work that day and McArthur had
indicated that they wanted to talk with representa-
tive employees, Wilson suggested that English be
called to the office in her place. McArthur agreed,
and the three employees went to the office where
they met Burke and McArthur for the remainder of
the morning and again for a while after a
lunchbreak.s
Burke became general manager on July 17 , 1967, and had spoken to
the assembled employees once before , shortly after assuming that position
The two benefits to take effect immediately were paid leave for death in
an employee 's immediate family and payment of time and a half for time
worked in excess of 8 hours in any I day As to the first , Burke explained
that he had only recently been confronted for the first time with the need
for death leave He had granted leave on that occasion and sought to make
the policy uniform and bring it in line with other corporate policies As to
the second he explained that he wished to bring Respondent 's policies in
line with policies of other employers in the area
Burke stated that he had in mind that Respondent could do without
from three to six employees in several areas of the plant
The evidence as to what Burke said at this meeting was not in substan-
tial conflict , although witnesses differed in the extent to which they re-
called Burke's remarks and were generally not in agreement as to the exact
date of the meeting I have generally credited Burke whose recollection
seemed most certain and complete and who was corroborated in most
details by at least one other witness as to the content of his remarks and the
date of this meeting Although two employees testified that Burke said they
would get wage increases if the Company showed a profit, other employees
did not mention wage increases among the benefits discussed at this time,
and Burke and Tripoli both testified that wage increases were not discussed
at this meeting I credit them in this regard
' Burke and McArthur testified that this meeting occurred on November
15 English, although less certain, placed it on the same date Tripoli
testified that it occured on November 13, and Wilson placed it on
November 13 or 14 I have credited Burke, McArthur , and English in this
regard
According to Burke, he had asked McArthur to bring a cross-section of
the employees to his office from various groups in the plant to talk with
them about employee gripes concerning wages and fringe benefits Accord-
ing to Burke, there had been a lot of griping about these matters to him and
McArthur and they wanted to know from the employees what their gripes
and grievances were
GLAR-BAN CORPORATION 1863
At the outset one of the employees asked why
they were there, Burke replied that they were
called in because work was not up to what it should
be and was slow, there were a lot of employees
griping , and he wanted to know their views as to
how they could improve output and morale.' He
mentioned that the Company had sustained a loss
that year of $18,000 up to that point and that they
would have to increase their efforts to improve the
Company's status.
The employees indicated that they were primarily
dissatisfied over wages which they wanted in-
creased immediately. Tripoli stated that his gripe
was that he had been promised a raise 2 months
earlier , but still had not received it. Burke stated
that he could actually get along with five or six less
employees at that time and that he could not con-
ceive of how he could give a wage increase then.
One of the employees asked how many Burke was
planning to do without and who would be affected.
Burke replied that he did not know. One of the em-
ployees suggested that in view of the amount of
work John Hoffman performed, Burke could lay
Hoffman off and split his wages among the three
employees present. Burke replied that this was not
the way to get wage increases and that any prospect
of wage increases would depend on improvement in
Respondent's finances and profitability. He stated
that Respondent could not afford a wage increase
at that time which would only add to Respondent's
costs and deficit. The employees did not take issue
with Burke's statement that Respondent could
stand a reduction in force and agreed that it could
obtain the same production with several less em-
ployees.
McArthur asked English his opinion about em-
ployee gripes. English replied that he had a gripe
about another employee who was making more
money than English despite the fact that English
was teaching and showing him the job. Burke told
English that the other man was hired for his
background and education and was likely in the fu-
ture to design products for the Company. Burke
also told English that he was producing substan-
tially less than the newer man, was not carrying his
load, and had been reprimanded. English agreed
that the amount of work described by Burke was
what he was turning out, but said that the reason
for his lower production was perhaps that he was
doing his work properly and that his foreman said
that most of the new man's work was wrong. After
Burke and English argued for a while over English's
work, McArthur broke in to say that the matter of
English's work had been straightened out.
During the course of the morning session, Wilson
asked Burke to come to the point, stop throwing
him curves, and tell him the real reason for the
meeting. Burke replied that the real reasons for the
meeting were those he had already explained.
At the usual lunchtime the meeting recessed, and
the same persons returned after the lunchbreak to
continue the discussion along the same lines as in
the morning.' The afternoon meeting lasted for
about an hour.
During the afternoon English mentioned that
Burke was beating around the bush and reiterated
Wilson's earlier remark about throwing them
curves. English asked whether the reason they were
there was not the Union. Burke replied by asking,
"What Union?" This was the first mention of a
union by the employees, and according to Burke, it
was the first time he was aware of any union activi-
ty.' Burke said that Respondent could not afford a
union and did not want one.10
During the meetings with the three employees
Burke did not suggest that employees form a com-
mittee to negotiate with Respondent or that they
form an independent union. No threats of reprisal
were made to the employees based on their union
activities. Burke did not offer or promise the em-
ployees a wage increase or any other benefits, apart
from those mentioned to the employees on
November 6.11
After the employees left Burke's office, Burke
and McArthur discussed briefly what had been said
during the meetings with the three employees. They
discussed the mention of a union by the employees
and also what kind of a reaction they expected the
people to have with respect to some of the
proposals they had made on November 6. They de-
cided that they wanted to explain further some of
the programs they had been talking about between
' As is to be expected in testimony as to a meeting of this length , not all
witnesses recalled and recounted the same details , and there are some vari-
ances, mostly minor, as to some of the things that were said Unless other-
wise indicated , my findings as to this meeting are based on a composite of
the testimony of Burke, Wilson, English , and Tripoli McArthur who was
present was not asked to testify in any detail as to this meeting
' According to Tripoli, who placed the meeting on November 13, during
the lunchbreak between the morning and afternoon sessions , a foreman,
Ronald Krzyzan , approached him and said that Burke knew they were try-
ing to start a union and had known it for a month Krzyzan denied that he
discussed union matters with Tripoli , but conceded that he became aware
of the union organizational campaign at the plant through rumors during
the week of November 13, when he overheard others talking about it He
testified that he spoke to no one about them He then testified that Wilson
had told him that they were thinking of starting a union He stated that he
asked Wilson no questions and was not interested in it Although mere in-
accuracy as to dates does not necessarily indicate an otherwise inaccurate
recollection or lack of veracity Tripoli 's testimony as to the sequence of
events which followed is also at variance in some respects with that of other
witnesses , and I have concluded that he is not to be credited as to this con-
versation in the face of Krzyzan's denial
+t Wilson testified that this exchange occurred during the morning ses-
sion Burke placed it during the afternoon and testified that during the
morning he had not grasped the import of W ilson's remarks about throwing
him curves According to Tripoli , the Union was not mentioned at all dur-
ing the meetings McArthur's testimony as to the conversation between
himself and Burke immediately after the afternoon session , set forth below,
and the other events which followed this session tend to corroborate Burke
whom I credit in this regard
10 Wilson and English so testified without contradiction
11 Although these benefits were discussed during the meetings with the
three employees , the content of that discussion is not indicated in the
record
1864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves and felt that Wilson could communicate
to some of the employees the things they wanted
explained , assuming that he would talk to the other
employees about what they told him. Accordingly,
McArthur went out into the plant and called Wil-
son back into Burke's office.12
During this meeting , Burke and McArthur told
Wilson that they would attempt to give the em-
ployees a wage increase and had been working on a
plan to fit the employees in the plant into nine clas-
sifications and to devise a scale of wages with
progressions based on length of service.13 McArthur
told Wilson that they had been working on the plan
for some time because many employees had griped
to him and Burke about wages.14 They referred to a
handwritten document lying on Burke's desk but
did not show it to Wilson."
Wilson asked for something concrete and said
that he would talk it over with English and Tripoli
to see whether they wanted to go along with it.
Burke and McArthur told Wilson what increases
most of the employees would receive under the
plan, but added that the increases were contingent
upon Respondent's showing a profit and approval
of its board of directors. Wilson told Burke that he
believed the increases were equitable and would be
acceptable to a majority if they were implemented.
He asked Burke if he could tell the other employees
about the increases and was told that he could take
time to do so." As he left Burke's office, Wilson
said he believed that the plan was all right and that
he could get the Union off his back. Burke said he
appreciated that very much.'?
After Wilson left Burke's office, he went to En-
glish and told him about the wage increases of
which he had just learned. English expressed dis-
pleasure with the increases and expressed doubt as
to why Burke would have told Wilson about it.
What happened next is the subject of conflicting
testimony. According to Wilson, he told English
that if English did not believe him, English should
go to Burke's office and ask Burke. Wilson testified
"These findings are based on the testimony of McArthur Burke
testified on cross-examination that he did not know how it came about that
Wilson returned to his office with McArthur and that he did not recall that
it was at his request I have concluded that McArthur was more candid than
Burke in recounting what happened after the end of the meeting with the
three employees This testimony of Burke as well as additional testimony
set forth below persuades me that whatever candor Burke may have dis-
played in describing events up to this point, he was not candid in his
testimony with respect to later events
13 Unless otherwise indicated my findings as to this meeting are based on
a composite of the testimony of Wilson, Burke, and McArthur
" The principal complaint identified on the record was that older em-
ployees complained because new employees were hired at the same or
higher rates of pay than those of experienced employees
"The document, which contained a schedule of classifications and rate
progressions, showed how each employee would fit in the schedule and its
effect on his present wages. McArthur testified it was prepared on
November 7, after some earlier discussion about wage inequities Accord-
ing to McArthur, he worked on the document for about a week before
finishing it
IS Burke testified that he did not tell Wilson that he could make an offer
for Respondent but agreed that Wilson could explain to the employees
that English then went to Burke's office where Wil-
son did not hear what was said because Wilson did
not go with him.
According to English, Wilson left him temporari-
ly, returned after a brief absence, and said that
Burke wanted to see him in his office. English
testified that he went to Burke's office with Wilson
and a conversation ensued between English and
Burke with Wilson present. English's version of the
conversation was as follows: Burke asked English if
Wilson had told him what Burke had said. English
told Burke what Wilson had told him about the in-
creases, and Burke confirmed it. English laughed
and said he did not think it was fair. Burke said that
it was and that he had just shown Wilson the
figures. Burke then said, "I know all about it. En-
glish, I know all about it." English asked about
what, and Burke said a union. English asked Burke
how he knew, and Burke replied from hearsay
around the shop. English said that the proposed in-
crease was good for him but that since Burke knew
about the Union, how did Burke think the others
who had signed cards would feel about it. English
asked if it was all right for them to tell the other
employees. Burke said it was, and English asked if
it was all right for him to give Burke a report the
next day. English specifically denied that Burke
said anything about approval of the board of
directors as a condition of the increase.
According to English during this conversation
after he described the raises, Burke said, "I'd like
to get this damn union off my back" and also, "If
the Union comes in here, I'll lose my job plus the
plant would be closed down."
Burke denied that the conversation occurred at alI
and also specifically denied that he ever told any
employee that the plant would be closed.
The credibility issue raised by the conflicting ver-
sions has two aspects. One is veracity and the other
is accuracy of recollection. As to the first, while
Wilson and English were in disagreement as to Wil-
son's presence in Burke's office with English, Wil-
what was under consideration as a projection
" Burke testified that he could not recall whether or not Wilson men-
tioned the Union at this time When shown an affidavit. he had previously
given, Burke testified that his affidavit referred to the end of the earlier
meeting at which time he testified that "the statement was made, if those
things were to go into effect, we would not be bothered by a union" refer-
ring "to the wage projection and fringe benefits , improvement and so
forth " Although Burke in further explanation testified that there had been
general discussion of a wage increase before that at the earlier meeting, the
evidence, including testimony of McArthur, predominates that up to that
point Burke's comments about wages had been negative and not affirma-
tive Moreover, in clarifying this testimony Burke also explained "The
statement was that is , if we were to implement the new wage system, adjust
the pay scales and fringe benefits and income protection and so forth, that
they would, collectively, the three of them would not bother us with
union " Although Burke continued to assert that this statement was made
at the end of the meeting with the three employees , all witnesses , including
Burke, agree that no new wage system had been mentioned up to that
point I am satisfied that the statement described by Burke is the same as
the statement described by Wilson as having been made at the end of his
later private meeting with Burke and McArthur
GLAR-BAN CORPORATION
son's testimony supports English's testimony that
English went to Burke's office. Although there is
reason to believe that Wilson's relations with
Tripoli and English became strained shortly after
these events, and Wilson was employed by Respon-
dent at the time of the hearing, Wilson impressed
me as both truthful and accurate in his recollection,
particularly of this event. Accordingly, I credit Wil-
son that he did not return to Burke's office with En-
glish , but based on his testimony and that of En-
glish , as well as my conclusion that Burke was not
candid with respect to events following the meeting
with the three employees,"' I find that English
spoke to Burke in his office shortly after Wilson
was given information about the wage increases.19
As for the content of English's conversation with
Burke, although I find Burke's denials entitled to lit-
tle weight, the question remains whether English's
version should be credited. English's testimony that
Wilson was present, as well as comparison of his
testimony concerning the November 6 meeting to
that of other employees, makes it clear that English
was not always an accurate reporter of what he ob-
served and heard. However, in the face of Burke's
denial that he told any employee that the plant
would be closed, there is support for English's con-
trary testimony in the testimony of employees Lan-
dowski and Keller that English told them shortly
after leaving Burke's office while polling their senti-
ments that if the Union came in the plant would be
closed. The value of their testimony, which I credit,
establishing statements consistent with English's
testimony as support for his testimony, of course,
depends on English 's accuracy in repeating what
Burke had told him and the likelihood that English
in repeating it did not invent or embroider upon
what Burke had told him. As for the latter, it is
clear that English was suprised by Wilson's report
that Burke had told him about possible wage in-
creases so soon after Burke had indicated that in-
creases were not possible and was sufficiently dubi-
ous to determine the truth of Wilson's report
directly from Burke. Although English stood to
benefit personally if and when the increases
became effective, I find it doubtful that English,
who was instrumental in the organizing campaign,
would have invented a threat for attribution to
Burke on short notice in the excitement of the time
's See fns 12 and 15, above
Also supportive of this finding is the fact that English 's testimony is un-
contradicted that on the next day he sought to report back to Burke and
spoke to McArthur about the employees ' reaction to the wage increases,
consistent with his testimony that he had told Burke he would
"According to English , a supervisor , Helen Johns , was present in the
area and probably heard what they said He also testified that Burke and
McArthur were standing in the lunch area looking into the shop while they
spoke to the employees Tripoli testified that from his work station he
could see the gathered employees with two supervisors in the group He
testified that he saw McArthur come in the lunch area and watch the
grouped employees. Burke denied that he observed the employee
gatherings and McArthur was not asked about them Wilson testified that
he did not observe Burke , McArthur, or any other supervisor in the area at
1865
in order to induce acceptance of Burke's proposal
by the other employees without Burke having con-
veyed to him the essence of the threat in their con-
versation. As for English's accuracy, lacking any
elucidation from Burke as to what he might have
said of a nonthreatening nature which might have
been misunderstood by English as a threat to close
the plant, I credit English's version of his conversa-
tion with Burke.
After English left Burke's office, Wilson spoke to
other employees in two groups relaying to them the
information about wage increases that Burke had
given him. No supervisors participated in the group
discussions.20 However, before speaking to the em-
ployees, Wilson spoke to at least one of the super-
visors of the employees involved and told her that
he was going to talk to them about a proposal he
had gotten from the office.
English spoke to one employee individually about
Burke's offer, and then joined Wilson in telling the
employees what Burke had offered. Wilson told the
employees that if they would forget about the
Union they would get raises depending upon how
long they had been there.
On the following day, English went to Burke's of-
fice. As Burke was not there, English spoke to
McArthur and told him that the employees had said
they would rather have a union represent them and
would not go along with Burke's proposal.21
2. Concluding findings
The complaint alleges that Respondent promised
or offered certain improved benefits to employees
on November 6 and 15, 1967, if they refrained
from becoming or remaining members of the Union
or giving assistance or support to the Union or in
order to induce them to do so.22
With respect to November 6, the General Coun-
sel relies on the speech made by Burke to the as-
sembled employees. The General Counsel concedes
that no express mention of the Union was made by
Burke at this time but contends that in the context
of the union activities which had just commenced
at the plant and other surrounding circumstances,
the unlawful purpose alleged in the complaint is to
be inferred. Respondent contends, to the contrary,
that no purpose beyond that to which Burke
the time I do not credit Tripoli's testimony that the supervisors joined the
grouped employees Whether or not Burke , McArthur , or the other super-
visors were in a position to observe the groups , I find the evidence insuffi-
cient to establish that they heard what was said or participated in any
discussion However, it is clear that Burke , McArthur, and at least one of
the supervisors were aware that Wilson and English were going to discuss
the increases with the other employees
L1 English so testified without contradiction
ix The complaint also alleges that Respondent violated Sec 8 ( a)(1) by
the conduct of David Holmes in interrogating employees concerning their
union activities on or about November 16, 1967 No evidence was in-
troduced to support this allegation , and I will accordingly recommend that
it be dismissed
354-126 O-LT - 73 - pt. 2 - 46
1866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified may be inferred because there is no
evidence that Respondent's management became
aware of the union activities at the plant until
November 15.
There is evidence to support the General Coun-
sel's contention. Although Burke denied awareness
of employee union activities at the time and em-
ployees conceded that they were trying to keep
their union activities secret, the small size of the
employee complement in the plant, the relatively
large ratio of supervisors to employees, and the tim-
ing of Burke's speech in relation to the beginning of
the card signing campaign by the employees would
supply a basis to infer that Burke's denial was not
truthful.23 Moreover, the nature of Burke's remarks
would tend to indicate that they were prompted by
something other than normal considerations, for
despite the fact that insurance and vacation
benefits had not been formulated or approved
Burke took this occasion to announce them at this
time.
Burke's testimony explaining his reasons for
calling the meeting and announcing the benefits at
this time is not persuasive in rebutting the inference
the General Counsel seeks to have drawn, but to
the contrary lends some support to it. Although
Burke testified that he sought employee coopera-
tion at this time in reducing overtime, rejection
rate, and other costs, the evidence shows that over-
time costs, which had been at their highest in July,
August, and September, were lower in October
than they had been for the previous 12 months.
Burke also testified that the rejection rate had im-
proved since he had taken over as manager. Burke
did not explain why if his concern over costs was
well founded he chose that moment to announce
changes in employee benefits which would result in
increased costs to Respondent.
The November 6 meeting, of course, cannot be
viewed in isolation from the entire chain of events
and particularly those of November 15, also under
attack in the complaint. Here again Burke denied
awareness of the union activities at the time he
asked to meet with a cross-section of the employees
in the plant. Burke's explanation that he sought to
meet with a cross-section of employees to answer
employee gripes and his denial that he was aware of
the union activities until they were mentioned dur-
ing the meetings raise further doubts. It would seem
that the gripes could have been dealt with more
directly with the employees making them at the
time they were made than with a cross-section of
employees. The gripes apparently were not new but
had continued for some time. The employees who
were called in were three of the early card signers
in the plant.24
However, if, as the General Counsel contends,
the November 6 meeting and the meetings with
Tripoli, English, and Wilson were motivated by a
desire to interfere with union activities, it is difficult
to understand why Burke and McArthur did not
reveal the projected wage plan to all three em-
ployees during their lengthy meetings occasioned
by employee complaints about wages, but to the
contrary stated at that time that wage increases
were not possible and waited until later in the day
to unveil the plan to Wilson. This sequence of
events becomes more readily understandable if
Burke's testimony as to when he became aware of
the union activities is accepted. For then it appears
consistent with McArthur's testimony that after
Burke and McArthur became aware during the
second session of their meeting with the three em-
ployees that employee dissatisfaction was being
manifested in union organizational efforts, they
discussed their prior efforts to overcome employee
dissatisfaction in the light of this additional
knowledge which led them to decide to call Wilson
back to Burke's office to unveil their previously un-
disclosed plan for dealing with employee com-
plaints about wages.
I have concluded that the inference is stronger
and more easily drawn that, during the second ses-
sion of their meeting with the three employees on
November 15, Burke and McArthur became aware
of the union activities which motivated their sub-
sequent actions that day than that they were aware
of and motivated by the employee union activities
in their earlier actions. Accordingly, I conclude that
the allegations of the complaint based on the
November 6 meeting with all employees in the
plant and on the November 15 meeting with the
three employees have not been sustained.
The evidence leaves little doubt, however, that
the disclosure of the projected wage increases to
Wilson was motivated by the desire of Burke and
McArthur to induce the employees to give up their
organizational efforts. McArthur's testimony makes
it clear that the information that the employees
were seeking a union was discussed between him
and Burke before they recalled Wilson and told him
about the increases, and indeed it appears that this
was the only significant new information they had
learned as a result of the earlier meetings to explain
the reason for the recall of Wilson. Whether or not
they directly presented the wage plan to Wilson as
an alternative to selecting the Union, it is clear
from Wilson 's parting remarks to Burke that he un-
derstood that to be the purpose for which the wage
increases were proposed, and Burke's response to
those remarks supported that understanding. The
evidence is even more direct that when English
went to Burke to verify what Wilson had told him
about the increases , Burke raised the topic of the
Union and threatened that the plant would close if
the Union came in . Moreover, McArthur's
Ventre Packing Co , Inc., 163 NLRB 540
24 Nelson, Tripoli, and Wilson English was suggested as a substitute for
Nelson by Wilson and Tripoli
GLAR-BAN CORPORATION 1867
testimony establishes that he and Burke intended
that Wilson communicate word of the increases to
the other employees and that their purpose in dis-
closing the wage plan was not simply to influence
Wilson but to induce all the employees to abandon
their organizational efforts.
Accordingly, I conclude that Respondent vio-
lated Section 8(a)(1) of the Act by the conduct of
Burke and McArthur on November 15, 1967, in in-
forming Wilson and English of their plan for in-
creasing wages which was tantamount to a promise
of benefit design to induce the employees to aban-
don self-organization . 25 I also conclude that Burke's
threat to English that the plant would be closed if
the Union came in further violated Section 8(a)(1)
of the Act.26
B. The Alleged Violations of Section 8(a)(3)
1. The facts
On November 17, at the end of the workday,
McArthur called English, Tripoli, and John Hoff-
man into his office. McArthur told them that all
three did good work but he had to lay them off
because Respondent was short of work.27 The three
employees then went to Burke's office and obtained
layoff slips.26
None of the laid-off employees was replaced.
Tripoli's work was performed by his foreman who
absorbed it along with his other duties. The work of
English was absorbed by others in his department,
and insofar as the record shows Hoffman's work
was substantially unneeded at the time of his layoff.
Hoffman was recalled to work on December 27. As
of the time of the hearing, English and Tripoli had
not been recalled.29
Burke testified that layoffs by Respondent were
not rare and that during 1967, approximately seven
employees were laid off. According to him, the
number of employees in the-plan-t- varied with the
workload. According to Burke, the reasons for the
November 17 layoff were the deficit, a slowdown in
receipt of raw materials being used for a contract
with Cessna Aircraft, and the fact that they were
starting to maintain schedules for that contract.
According to McArthur, as early as mid-October,
he and Burke discussed the possibility of laying off
some employees because they did not have enough
work in certain areas to keep everyone as busy as
they should be. They discussed the areas where
they could reduce employment without hurting
productivity and the possibility of laying off some
employees unless orders increased. McArthur
testified that there was no formal policy with
respect to selection of employees for layoff, and
that Respondent considered any factor they felt
relevant within the bounds of good judgment and
ethics. Burke also testified that while they tried to
adhere to a departmental type of seniority, there
was no seniority system in the plant and it was not a
primary factor in the decision to lay off. Burke
testified that the company policy with respect to
layoffs was to rely on any factor it felt relevant
within its discretion.
According to McArthur and Burke the decision
to lay off the three employees was made during the
week preceding the layoff. McArthur testified that
there was preliminary discussion of the three em-
ployees ultimately selected early in the week before
the November 15 meetings in Burke's office and
that the final decision was made after the
meetings.30
Tripoli and Hoffman, two of the three employees
selected for layoff, performed work directly related
to a Cessna contract. Tripoli primarily silk screened
and painted panels. Hoffman sheared and cut extru-
sions relating to this contract. According to Burke,
Respondent had a decreasing backlog of work on
this contract and was experiencing difficulty in
getting materials for this job. He testified that he
and McArthur decided to lay off Tripoli because
his foreman could assume Tripoli's duties along
with his other work and they selected Hoffman
28 Assuming that the wage plan was a "projection " subject to approval by
the board of directors and showing of a profit rather than a "proposal" as
testified by Burke, it is clear from the testimony of Burke, McArthur, and
Wilson that the plan was presented to Wilson as something that Burke
would attempt to put into effect subject to satisfaction of the conditions
Thus, Burke and McArthur intended to convey to the employees , contrary
to their earlier discouraging remarks , that if the employees refrained from
their union activities they would seek to implement the plan at the ap-
propriate time This was a clear promise of additional benefits Copeland
Oil Co , Inc , etc , 157 NLRB 126, 135- 136 See also Eagle-Picker Indus-
tries, Inc , 171 NLRB No 44 English's testimony which I have credited of
course makes the promise even clearer
28 In view of these conclusions, I find it unnecessary to decide whether, as
the General Counsel contended at the hearing , Wilson and English became
agents of Respondent so that Respondent was responsible for their state-
ments to employees on November 15 The complaint also alleges that on
November 15, Burke suggested to its employees that they form their own
committee to negotiate with Respondent , encouraged them to do so,
and/or encouraged them to bypass the Union as their collective -bargaining
representative In view of my findings above and the fact that the Union
had made no request to bargain at that time , I conclude that these allega-
tions have not been sustained and will recommend their dismissal
2' English and Tripoli so testified without contradiction
28 Immediately after receiving their layoff slips, English and Tripoli went
to Wilson and reminded him that they had an agreement that if one of them
was laid off they would all request layoff At their urging , Wilson went with
English and Trioloi to Burke's office and asked Burke to lay him off Burke
refused to do so and told W ilson that if Wilson left he would be considered
a quit Later that afternoon he telephoned Burke and told him he was
under duress when he requested the layoff slip W ilson continued to work
thereafter
29 English 's wife started to work for Respondent at the same time as En-
glish and was working at the time of the hearing
30 As set forth above, Burke mentioned to the assembled employees on
November 6 a projected trim in areas where they were heavy with person-
nel without being more specific Again on November 15, in response to the
request of English , Tripoli, and Wilson for wage increases , Burke stated
that he could get along without five or six employees . At that time when
asked how many and whom Burke was planning to let go, Burke said that
he did not know
1868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they were more or less on schedule with
the materials on which Hoffman worked.31
English, the third employee laid off, was
originally hired to work in the machine shop on the
shear. Later at his request he was transferred to
work in the special production department on a
contract for internally lighted instruments and
clocks for a contract with the R. C. Allen Aircraft
Instrument Division. That contract started in Oc-
tober 1966 and terminated in September 1967. En-
glish also worked on clocks for another customer in
the special production department. According to
Burke, the backlog of orders for this customer had
diminished at the time of the layoff and was dif-
ficult to project from month to month. Apart from
English, Connie Nelson and Terry Lukowski
worked on the clocks in the special production de-
partment along with the leadman, David Holmes,
and a new technician, Dan Wisniewski, who was
being trained in that area to give him some
background. According to Burke, English was
selected for layoff because his skills were below
those of Nelson and Lukowski and he had previ-
ously been reprimanded for his attitude and his
work.
Burke and McArthur both testified that they had
experienced a great deal of poor work by English in
the clock department, and that English's attitude
had been poor in that he spent too much time walk-
ing around the plant talking to other employees
rather than working.32 According to Burke, English
had been reprimanded several times about his poor
production, and, as set forth above, this subject was
raised at the November 15 meeting between Burke,
McArthur, English, Tripoli, and Wilson, in connec-
tion with discussion of the possibility of laying off
some employees.
According to Burke, in late October he had con-
sidered discharging English but had been dissuaded
by McArthur who believed that English could
become a good employee with proper handling.
McArthur spoke to English at that time.
McArthur testified that he had received several
complaints from English's leadman about the quali-
ty of English's work and English's general attitude.
On or about October 30, McArthur and Holmes,
the leadman, decided to talk with English about
these complaints and did so. In response to mention
of his attitude, English told McArthur that he had
been promised a raise by previous management
which he had never received and stated that he felt
this was why he did not care about his work. Ac-
cording to McArthur, English admitted that his at-
s' Hoffman testified that he knew of no material shortage However, ab-
sent effort to obtain greater detail from Burke , Hoffman , or Respondent's
records, I am not persuaded that his testimony raises any basic conflict as
to the availability of work for Hoffman, particularly in the light of the
discussion on November 16 between Burke, McArthur, English, Tripoli,
and Wilson
' Burke conceded that on one occasion English had been complimented
for a suggestion he had made to overcome a production problem, but
titude was not what it should be. McArthur and
Holmes agreed that, if English had been promised a
raise which he did not receive, it would affect En-
glish's attitude. McArthur told English he would
give him a 10-cent hourly increase then and review
it in January 1968, to determine whether he should
be given an additional 10 cents at that time. Ac-
cording to McArthur, in the time which followed
until English was laid off, he observed English on
the job and found no appreciable change in his at-
titude or productivity, but had no further discus-
sions with English about it.
English's rate of pay at the time he was hired was
around $2 an hour. With the October 30 increase
he was earning $2.40 an hour at the time of his
layoff. At least part of his increase was due to an
across-the-board increase given to all employees.
Both Burke and McArthur testified that English's
rate of pay was a factor in their decision to lay off
English, in that they felt that they could get as
much work out of others who earned less than En-
glish. English was not offered the opportunity to
work at a lower rate of pay or told that he had
priced himself out of his job. McArthur testified
also, however, that they did not offer English a
chance to transfer to a lower paying job because he
had no place to put any of the laid-off employees.33
During English's term of employment he had quit
once in October 1966 without notice. When he
returned shortly thereafter to ask for his job again,
he was rehired. Burke was not manager at the time,
but testified that he understood that English was
rehired because he had some experience in the
shearing operation and they needed help in that de-
partment at the time of his return.
2. Concluding findings
Although I am not persuaded that Burke was
aware that employee discontent had ripened into
self-organizational efforts until he learned this fact
during the meetings with Wilson, English, and
Tripoli on November 15, there is substantial basis
to infer that at the time the decision to lay off was
made after those meetings, Respondent was aware
that English and Tripoli were among the active
union adherents in the plant. Burke's statement to
English on the afternoon of November 15 that he
knew all about the Union from hearsay in the shop,
Krzyzan's admission that he had heard about the
Union from Wilson during the week of November
13, and the small size of the shop with its large ratio
of supervisors to employees support the inference
testified that his workmanship had nonetheless continued to be poor
- 3 He testified that in October they had transferred English from the spe-
cial department into the machine shop in mid -October for a short time
because they had work to do in the machine shop and work was slow in the
special production department McArthur did not know whether or not En-
glish had been transferred before that as McArthur was not at the plant
until September 1967
GLAR-BAN CORPORATION 1869
that once Burke learned that the employees were
trying to organize, the details of their efforts were
easily come by. That Wilson and Tripoli were al-
ready viewed as leaders of employee opinion was
indicated by their invitation to come to Burke's of-
fice on November 15 and by solicitation of their
views as to how employee morale might be im-
proved. That English was a part of the leadership
group in the plant also appeared from the fact that
Wilson and Tripoli suggested English to replace the
absent Nelson at the meetings . English's role fol-
lowing the meeting , including his report to
McArthur the following day, and an otherwise
unexplained warning to Tripoli not to talk to Wil-
son following the meetings34 support the inference
that Burke and McArthur were aware that English
and Tripoli were active union supporters at the
time of the layoffs, despite Burke's denial.35
By showing a substantial basis to infer Respon-
dent's knowledge of the union activities of English
and Tripoli, Respondent's unfair labor practices on
November 15, and the effectuation of the layoffs 2
days after November 15 and 1 day after English
told McArthur that the employees still wanted a
union , the General Counsel established prima facie
that the decision to lay off was based on discrimina-
tory reasons. The burden of going forward to rebut
the General Counsel's proof thus shifted to Respon-
dent.36
Much of Respondent's evidence stands uncon-
tradicted on the record. There can be no doubt on
this record that Respondent was operating at a
deficit and was beset with production problems for
which it was seeking to find solutions. At least some
of these problems, however, the deficit, excessive
overtime, and excessive rejection rate, had existed
for some time and botk the excessive overtime and
rejection rate had decreased. It appears that among
the solutions Respondent was exploring was the
possibility of a layoff. Indeed , on November 6,
Burke projected trim in areas where Respondent
was heavy with personnel without being more
specific. On November 15, he told Wilson, Tripoli,
and English , in response to their request for wage
increases , that he could do with five or six less em-
ployees, but it is significant that in response to their
inquiry he stated that he did not know who would
be affected and did not indicate that he was con-
sidering Hoffman for layoff even when the em-
ployees suggested it.
There Is no evidence to suggest any intervening
circumstance other than the union activities which
might independently explain the conclusion of
Respondent's deliberations and the timing of the
decision after the November 15 meetings. The
testimony of Burke as to the decrease in backlog
and the material shortage is vague as to timing and
detail and gives no indication that any of the factors
to which he attributed the decision became more
acute or clearly defined after November 15 than
they had been for some weeks before. Of course
evolution of a decision such as this need not be as-
cribed to occurence of a specific triggering change,
but where the record suggests the presence of an
unlawful trigger the absence of any other new
development must leave motivation in doubt.
Respondent's defense is thus not without its
weaknesses . However, it has its strengths as well.
The laid-off employees were not replaced by
others. There is nothing to indicate that there was
sufficient work to keep Tripoli and Hoffman busy
in their accustomed jobs or that there were other
employees doing similar work who were more logi-
cal candidates for selection for layoff. Likewise,
there is nothing to indicate that the reduced work
force in the special production department was
unable to handle its workload. The possibility of
layoffs had been mentioned by Burke twice, as I
have found, before he became aware of the union
activities. While the evidence indicates that the
conditions on which the layoff was based had ex-
isted for some time and that excessive overtime and
rejection rates had decreased, insofar as the
evidence shows the deficit had not, and the
decrease in overtime and rejection rate could sup-
port a finding that fewer employees were needed
as well as that excessive production costs were
reduced.
On this state of the record I find the evidence in
equipoise as to Respondent's motivation for its
decision to lay off employees. While the General
Counsel's evidence supports an inference of dis-
criminatory motivation for the decision, Respon-
dent's evidence equally supports an inference that
Respondent for valid reasons was about to lay off
some employees before it became aware of the
union activities in the plant. Further evidence might
well have tipped the balance either way. For exam-
ple, the record discloses the amounts of overtime
worked for a 13-month period ending in November
1967 but no evidence of overtime worked
thereafter. A showing that overtime was. or was not
substantial thereafter in the special products de-
partment or on the part of the foreman performing
Tripoli's duties would have had significant effect
but was not adduced. More concrete evidence as to
the material shortage and Respondent's backlog of
orders might also have shed light on whether
Respondent could have usefully employed the laid-
off employees, but it was not offered. While it is
34 According to Tripoli , on November 16, he went to Wilson in connec-
tion with his work , and Luczak, a foreman , approached him Luczak told
him not to talk to Wilson Tripoli asked why and explained that he was talk-
ing to him about work Luczak told him to go back to his area and not talk
to Wilson Tripoli asked, "Why' Are you going to fire me " Luczak replied,
"Maybe I will or maybe I won 't " Wilson advised Tripoli to leave and he
left Luczak did not testify , and Tripoli 's testimony in this regard was unde-
med
" Ventre Packing Co , Inc , supra Hoffman had signed a union authoriza-
tion card but there is no indication that he otherwise engaged in union ac-
tivities
36 Heck's Inc., 156 NLRB 760, 762-763, enfd as modified 386 F 2d 317
(C A 4), LTV Electrosystems, Inc, 169 NLRB 532 See also Materials
Transportation Company and Cement Trucking Company, 170 NLRB 997.
1870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
true that Respondent's witnesses could have been
less vague as to details and could have supported
their testimony with business records, they were
available for cross-examination and production of
significant business records could have been
required by counsel for the General Counsel. I con-
clude that on this state of the record the burden
shifted back to the General Counsel to rebut
Respondent's defense as to its motivation for the
decision to lay off and that the General Counsel has
not sustained that burden.
The question still remains , however, whether
Respondent was motivated by the employees' union
activities in selecting any or all of the employes to
be laid off. Considering English first, it was English
who initiated the contract with the Union, brought
the cards to the plant, solicited signatures , and col-
lected the cards At the November 15 meetings
between Burke, McArthur, English, Tripoli, and
Wilson, it was English who directly questioned
whether the meeting was brought about by the
union activities. It was English who expressed skep-
ticism over the willingness of the employees to ac-
cept the wage plan in lieu of the Union, and it was
English who reported back that the employees still
wanted the Union after he and Wilson told them
about the wage plan. Despite English's work record
which Burke criticized on November 15, when
Burke was asked who would be laid off, Burke an-
swered that he did not know and gave no indication
that English's job was in jeopardy. English per-
formed work similar to that performed by other
employees in the special production department.
While the workload in his department may have
decreased to the point at which it could be per-
formed with one less employee, there were still full-
time jobs left in the department to be performed
after the layoff. Of the other two employees in the
department, one, Connie Nelson, had been em-
ployed substantially longer than English, and the
other, Terry Lukowski, had been employed sub-
stantially less.37 I conclude that a clear prima facie
case has been made with respect to the selection of
English.
The reasons advanced by Respondent for select-
ing English for layoff, his poor work record and his
high wage rate, do not withstand close scrutiny. At
the very time that McArthur testified that he and
Burke began to consider a reduction in force, one
of the contracts performed by the special produc-
tion department had terminated, decreasing the
available work for that department. Despite
Respondent's dissatisfaction with English's work
and its other problems, after Burke and McArthur
had begun to consider a reduction in force even
" Holmes, who was the leadman and stipulated to be a supervisor, was
the oldest man in the department Wisniewski who was also identified as
performing similar work was not considered to be a production employee
and was performing this work as training for technical duties The evidence
does not indicate how long he remained in a training status
though Burke assertedly favored English's
discharge, McArthur persuaded Burke that efforts
should be made to salvage English, granted English
an immediate increase, and promised him a further
increase in January conditioned on improvement in
his work. Certainly it would seem that at that time
neither Burke nor McArthur contemplated laying
off English. When McArthur drew up the wage
plan, only a week after English was given an in-
crease, he placed English in a separate classifica-
tion occupied only by English and assigned him a
rate which would have resulted in a further increase
for him above the rate contingently promised to
him to be effective in January. On November 15,
when the topic of English's work was raised in
discussion of employee complaints about wages,
McArthur terminated the discussion with the re-
mark that the problems with English's work had
been straightened out. Later that day when the
wage plan was unveiled, English was told that he
would receive a 20-cent increase under the plan,
and no indication was given him that he would not
be around to receive the increase because of an im-
minent layoff. Even at the time he was informed of
the layoff, English, along with Tripoli and Hoffman,
was assured that his work was good and not the
cause of his layoff.
In these circumstances, I am convinced that, but
for English's role in the union activities and his re-
port back to McArthur that the employees still
wanted the Union, McArthur's efforts to salvage
English as an employee would not have been
abruptly terminated by his layoff, and Respondent
would not have selected him rather than some
other employee for layoff at that time.
Some of the factors which support this conclu-
sion as to English also apply to Tripoli. But there
are also significant differences. Although Tripoli
appears to have been among the group of em-
ployees who instigated the union activities as in-
dicated by his pact with Wilson and English, there
is little evidence of overt union activity by Tripoli
other than his signing of the card. Unlike English,
Tripoli was the only employee in the plant who per-
formed silk screening and spray painting work, and
the evidence is unchallenged that after Tripoli was
laid off, his foreman performed that work in a few
hours each day along with his other duties. There is
no evidence that the foreman worked excessive
overtime or that any of his other duties were
reshuffled after Tripoli's layoff in order to conceal
a continuing need for Tripoli's services.311 Although
the unexplained instruction to Tripoli not to talk to
Wilson on the day before his layoff raises suspicion
that Respondent was motivated by union hostility in
's Uncontradicted testimony by Tripoli that on the day of his layoff he
was told by a supervisor that he would have to finish what he was working
on or work overtime the following day is inconclusive There is no evidence
to indicate whether or not Tripoli finished the work he was doing before his
layoff at the end of the workday
GLAR-BAN CORPORATION 1871
dealing with Tripoli, I have concluded that the
evidence supporting an inference that Tripoli's
selection for layoff was motivated by union activi-
ties has been met by Respondent 's evidence in-
dicating an economic basis for Tripoli's selection
and that doubt must be resolved against a finding
that the selection of Tripoli was unlawful.
The evidence as to Hoffman in support of the
complaint is the weakest. There is no evidence that
he engaged in any union activities other than sig-
ning a card , an activity shared by a majority of
Respondent's employees. Not only is the evidence
as to the lack of need for Hoffman's services at the
time of the layoff substantially uncontradicted,but
the view that his service could be dispensed with
2. The Union's majority
As of November 7, 1967, there were 20 em-
ployees in the appropriate unit . Except for the
layoffs of English, Tripoli, and Hoffman at the end
of the day on November 17, 1967, the composition
of the unit remained unchanged through November
25, 1967.
From November 6 through 13, 14 of the em-
ployees in the bargaining unit , including English,
Tripoli, and Hoffman signed union authorization
cards. Of these, seven signed cards on November 6,
five signed on November 7, and two signed on
November 13. The cards, all identical in form, con-
tained the following printed matter:
YES, I WANT THE IAM
I, the undersigned, an employee of (Company)
hereby authorize the International Association of Machinists and
Aerospace Workers (IAM) to act as my collective bargaining agent
with the company for wages, hours and working conditions. It is
my understanding that I will be invited to join the IAM.
NAME (print) DATE
ADDRESS (print) CITY
DEPT SHIFT PHONE
Classification
SIGN HERE X
NOTE: This authorization to be SIGNED and DATED in EMPLOYEE'S
OWN HANDWRITING. YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY
FEDERAL LAW.
was advanced during the November 15 meeting in
support of tthe employees' request for a wage in-
crease . I conclude that the General Counsel has
failed to establish that the selection of Hoffman was
motivated by employees ' union activities.
Accordingly, I conclude that the General Coun-
sel has established by a preponderance of the
evidence that English was laid off because of the
employees' union activities but has failed to
establish that the layoffs of Tripoli and Hoffman
were unlawful.
C. The Alleged Refusal To Bargain
1. The appropriate unit
The parties agreed and I find as alleged in the
complaint that the following employees of Respon-
dent at its Kennedy Road plant constitute an ap-
propriate unit for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees,
excluding all office clerical employees , profes-
sional employees , guards and supervisors as
defined in the Act.
Most of the signatures on the cards were ob-
tained by English and Wilson. Both testified on
cross-examination that in soliciting employees to
sign cards, they mentioned to them that there
would be an election. English, in attempting to ex-
plain what he had said in this regard, showed con-
siderable confusion in his own mind between an
election and a meeting to be called by the Union
after a majority had signed cards at which contract
proposals would be voted upon. However, in at-
tempting to clarify what he had said he testified
that he had told employees they would have to vote
for the Union if they wanted one and that he be-
lieved Union Representative Duerr had told him
that. English's readiness in initially conceding that
he mentioned an election coupled with his obvious
confusion in his subsequent testimony in this regard
convinces me that English was not seeking to con-
ceal something which he believed might be damag-
ing to the Union's cause but that he was simply
confused and uncertain as to what he said relating
to an election in obtaining signatures on the cards.
Wilson testified that he solicited only two signa-
tures, but handed cards to other employees who
came to him to ask for them. According to Wilson,
1872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he told the employees, " Here 's the card and decide
whether you want a union or not. If you want a
union sign the card. You're not being pressured
into it, now, if there are enough of us that want a
union, then there will be a meeting and there will
be a vote taken on the-whether the Union is com-
ing in ." Wilson testified further that he formed the
impression that there would be a vote from infor-
mation received from English. He testified that he
told the employees basically what English had told
him and did not know in any greater detail what or
where the election would be.
Although 10 witnesses, apart from English and
Wilson, testified to identify the cards they had
signed, none of them were asked what they were
told at the time their signatures were solicited.
I am satisfied that the 14 cards received in
evidence constitute valid authorizations of the
Union to represent the signers. This is not a case in
which reluctant employees were induced to sign
authorization cards on the basis of a representation
that the card was designed only to secure an elec-
tion in which they would have a chance to make an
independent decision as to whether or not they
desired a union, thus giving them a reasonable basis
to believe that the cards would be used only for the
purpose of securing a Board election and not to ob-
tain union recognition . Here , as both English and
Wilson testified without contradiction, a number of
those who signed cards approached them and asked
for cards. All the cards were obtained by employee
volunteers. Union Representative Duerr had no
role except to supply the cards to English who had
initiated the contact between them. English's
testimony leaves in substantial doubt just what he
said to employees about an election but as Wilson
testified that he told other employees what English
had told him, and no other employees were asked
about English's statements to them when he sol-
icited signatures, I can only conclude that English's
statements did not differ in their significance from
the remarks which Wilson testified he made to
other employees. Wilson told employees that there
would be a vote taken on whether the Union would
be coming in, without being more specific or know-
ing specifically what kind of a vote he was referring
to. But Wilson also told employees that they should
sign a card if they wanted a union . He said nothing
to indicate that signing of the card, contrary to
what it indicated, would not have the effect of
authorizing the Union to represent the signer. In
these circumstances, I conclude that the signers of
the cards intended their signatures to have the ef-
fect indicated on the face of the cards.
Accordingly, I conclude that at all times material
after November 7, 1967, the Union represented a
J° By the end of the day on November 7, 12 employees had signed cards,
and 2 more signed cards on November 13 Even after English , Tripoli, and
Hoffman were laid off , the Union had a majority of I I out of 17 employees
majority of the employees in the unit found ap-
propriate above.39
3. The Union's request for recognition
On November 20, 1967, several days after
receiving the signed cards sent him by English,
Union Representative Duerr sent Burke a letter
containing the following text:
Please be advised that a majority of your
Production and Maintenance employees have
requested Local Lodge 1053, District 76, of
the International Association of Machinists and
Aerospace Workers, AFL-CIO, to represent
them in matters pertaining to wages, hours and
working conditions.
An early conference is requested for the pur-
pose of discussing formal recognition of the
Union and the terms of a collective bargaining
agreement.
Look forward to a pleasant and mutually
amicable relationship and with kindest regards,
I am,
Very truly yours,
Nelson Duerr
BUSINESS
REPRESENTATIVE
On the same day, Duerr filed the original charge
in this case alleging that Respondent had violated
Section 8(a)(1), (3), and (5) of the Act. The
charge was served on Respondent on November 22.
On November 24, 1967, Burke replied to Duerr
as follows:
Receipt of your letter of November 20, 1967
is acknowledged. This was the first communi-
cation of any sort received from your organiza-
tion . On the same day, your organization filed
a charge against Glar-Ban Corporation alleging
that the Corporation had refused to bargain
collectively . Apparently there has been some
error made in as much as no time to commu-
nicate with you would be available under the
circumstances.
Since receipt of your letter , the Corporation
has come to the opinion that your organization
does not now and never did represent a majori-
ty of the Corporation 's production and main-
tenance employees . Under the circumstances,
the Corporation could not legally give recogni-
tion to your organization as the bargaining
agent of its production and maintenance em-
ployees.
Insofar as appears, there has been no further
communication between the Union and Respon-
dent.
remaining in the plant , and in view of my findings as to the selection of En-
glish for layoff, the Union had a majority of 12 out of 18 employees for pur-
poses of determining Respondent's bargaining obligation
GLAR-BAN CORPORATION
4. Concluding findings
Although it is clear that the Union represented a
majority of Respondent's employees at all times
material after November 7, the burden remains on
the General Counsel to establish that Respondent's
refusal to recognize the Union was not in good
faith, but was motivated by a desire to gain time to
undermine the Union or rejection of the collective-
bargaining principle.40
As I have found, the first mention of the Union to
Burke and McArthur came during the second ses-
sion of their meeting with English, Tripoli, and Wil-
son. After that meeting, they discussed between
themselves the meeting that had just ended, includ-
ing the information they had just received about the
Union. In lengthy meetings which had just ended
they had not seen fit to mention the proposed plan
for wage increases which was under consideration
but had discouraged any expectation of wage in-
creases which were a principal cause of employee
complaints. Nonetheless, after conferring they re-
called Wilson and presented to him the wage plan
with the expectation that he would communicate it
to other employees. They gave Wilson permission
to speak to other employees about it on working
time, and Wilson left assuring them that he thought
it would get the Union off their backs. Whether or
not they left it to Wilson to infer that their purpose
in presenting the plan to him was to persuade the
employees to abandon the Union, the conclusion is
inescapable that this was their purpose. Force was
added to their efforts by the more explicit conver-
sation that the plant would close if the Union came
in. After English reported back the next day that
the employees still wanted a union , he, as I have
found, was selected for layoff because of the union
activities.
The fact that Respondent's unfair labor practices
preceded the Union's request for recognition does
not detract from their relevance to the issue of
good faith. Unlawful opposition to organization
may evidence rejection of the collective-bargaining
principle whether it follows a bargaining request or
occurs as soon as the prospect for a recognition
request or election appears.41
Similarly, the filing of charges by the Union on
the same day that it sent its request for recognition
did not relieve the Respondent of any obligation to
bargain with the Union. Whether or not the Union's
charges that Respondent had refused to bargain as
of November 20 were well founded, the charges
like the request for recognition asserted the Union's
40 Aaron Brothers Company of California, 158 NLRB 1077
" Post Houses , Inc , 161 NLRB 1159, enfd 384 F 2d 463 (C A 3)
°R No evidence was offered by Respondent in support of the opinion as-
serted in the letter that the Union did not then and never did represent a
majority of its employees To the contrary, the only evidence as to Respon-
dent 's knowledge of the Union 's majority appears in English 's uncon-
tradicted testimony that he reported to McArthur on November 16 that the
employees still wanted a union
1873
majority status and were not inconsistent with its
majority claim. It is well settled that the filing of
charges does not relieve an employer from his bar-
gaining obligation under the Act.
Respondent's unfair labor practices were neither
peripheral nor minor. The disclosure of the wage
plan was not irrelevant to the source of employee
discontent but a deliberate measured response to
employee complaints which Respondent had
theretofore declined to make despite its concern
over the complaints. The layoff of English occurred
only after the more constructive effort to
discourage the employees had seemingly failed.
Respondent's response to its learning of the union
activities was thus clearly calculated to undermine
whatever support the Union enjoyed and directly
evidenced rejection of the collective-bargaining
principle. In these circumstances I conclude that
the General Counsel met his burden of proving that
Respondent's refusal to bargain on November 24,
1967, was not in good faith and therefore violated
Section 8(a)(l) and (5) of the Act.42
Apart from the above, even assuming that it were
found that Section 8(a)(5) was not violated, I
would find in any event that a bargaining order
would be warranted to remedy the violations of
Section 8(a)(1) and (3) which occurred after the
Union acquired its majority and were clearly
designed to frustrate that majority.43
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations of Glar-Ban Corporation, described in
section I, above, have a close, intimate, and sub-
stantial 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.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, as alleged in the
complaint, I shall recommend that Respondent be
ordered to cease and desist therefrom and take cer-
tain affirmative action. As I have found that
Respondent's violations included a discriminatory
layoff and reflected a purpose to evade the obliga-
tion of collective bargaining , I am of the opinion
that there exists a danger of commission of other
°3 Irving Air Chute Co , Inc , 149 NLRB 627, enfd 350 F 2d 176, 182
(C A 2) Cf Flomatic Corp , 147 NLRB 1304, enfd in part 347 F 2d 74,
77-79 (C A 2) Although the court in Flomatic denied enforcement to the
Board 's bargaining order, unlike the facts in that case , here the evidence
shows that Respondent 's unfair labor practices were more than "a
somewhat overstated reply" to charges by the Union, but went directly
toward remedying known employee complaints and culminated in the
layoff of English
1874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and further unfair labor practices and shall recom-
mend that Respondent be ordered to cease and de-
sist from infringing in any other manner upon rights
guaranteed by Section 7 of the Act.
As I have found that Respondent discriminatorily
selected Sylvester English for layoff, I shall recom-
mend that Respondent be ordered to offer him im-
mediate and full reinstatement to his former or a
substantially equivalent position , without prejudice
to his seniority and other rights and privileges, and
to make him whole for any loss of earnings he may
have suffered by reason of the discrimination
against him by payment to him of a sum of money
equal to the amount he normally would have
earned as wages from the date of his discharge to
the date of the offer of reinstatement , less his net
earnings , to which shall be added interest at the
rate of 6 percent per annum , in accordance with
the formula set forth in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the basis of the above findings of fact and
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent , Glar-Ban Corporation , is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. District Lodge 76 , Local # 1053, International
Association of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees at
Respondent's Kennedy Road plant , Cheektowaga,
New York, excluding all office clerical employees,
professional employees , guards and supervisors as
defined in the Act constitute an appropriate unit
for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times since November 7, 1967, the
Union has been , and now is , the exclusive represen-
tative of the employees in the said unit for the pur-
pose of collective bargaining within the meaning of
Section 9 ( a) of the Act.
5. By promising employees wage increases and
threatening to close Respondent's plant in order to
interfere with , restrain , and coerce them in the ex-
ercise of rights guaranteed by Section 7 of the Act,
by selecting Sylvester English for layoff because of
the employees ' union activities, and by refusing to
bargain collectively with the Union as the exclusive
representative of its employees in the appropriate
unit set forth above, all as found above, the
Respondent has engaged in and is engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8 ( a)(1), (3), and ( 5) and Sec-
tion 2 ( 6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and pursuant to Section
10(c) of the Act, I hereby recommend that Glar-
Ban Corporation, Cheektowaga, New York, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising employees wage increases in order
to interfere with, restrain, and coerce them in the
exercise of rights guaranteed by Section 7 of the
Act.
(b) Threatening to close its plant if the em-
ployees choose to be represented by a union.
(c) Discouraging membership in District Lodge
76, Local #1053, International Association of
Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization, by discriminating in
regard to the hire and tenure of employees or any
term or condition of their employment.
(d) Refusing to bargain collectively in good faith
concerning rates of pay, hours of employment, and
other conditions of employment with District
Lodge 76, Local #1053, International Association
of Machinists and Aerospace Workers, AFL-CIO,
as the exclusive representative of the employees in
the appropriate unit described in paragraph 3 of the
section of the Decision entitled "Conclusions of
Law."
(e) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their rights to self-organization, to form
labor organizations, to join or assist District Lodge
76, Local #1053, International Association of
Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in any other concerted activities for the
purposes of collective bargaining 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 by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act,
as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effecuate the policies of the Act:
(a) Offer Sylvester English immediate and full
reinstatement to his former or a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previously
enjoyed, and make him whole for any loss he may
have suffered by reason of the discrimination
against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b)Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
GLAR-BAN CORPORATION
and all other records necessary to analyze the
amount of backpay due under the terms of this
-Recommended Order.
(d) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of-all employees in the appropriate unit , and em-
body in a signed agreement any understanding
reached.
(e) Post at its Kennedy Road, Cheektowaga,
New York, place of business, copies of the attached
notice marked "Appendik."94 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 3 , after being duly signed by the Respondent's
representative, 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 em-
ployees 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.
(f) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.45
IT IS FURTHER RECOMMENDED that the complaint
be dismissed insofar as it alleges unfair labor prac-
tices not found herein.
14 In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
u In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing , within 1 0 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to eftectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL bargain collectively, upon request,
with District Lodge 76, Local #1053, Interna-
tional Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclu-
sive representative of all the employees in the
bargaining unit described below with respect to
rates of pay, wages , hours of employment, and
other terms and conditions of employment
and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance em-
ployees at our Kennedy Road, Cheek-
towaga, New York, plant, excluding all of-
1875
fice clerical employees, guards and super-
visors as defined in the Act.
WE WILL offer Sylvester English reinstate-
ment to his former or a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges, and we will make
him whole for any loss he may have suffered as
a result of his layoff.
WE WILL NOT promise our employees wage
increases in order to interfere with, restrain,
and coerce them in the exercise of rights
guaranteed by Section 7 of the Act.
WE WILL NOT threaten to close our plant if
our employees choose to be represented by a
union.
WE WILL NOT refuse to bargain collectively
with District Lodge 76, Local #1053, Interna-
tional Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclu-
sive representative of all the employees in the
bargaining unit described above.
WE WILL NOT discourage membership in Dis-
trict Lodge 76, Local #1053, International As-
sociation of Machinists and Aerospace Wor-
kers, AFL-CIO, or any other labor organiza-
tion, by discriminatorily laying off and refusing
to reinstate any of our employees or by dis-
criminating in any other manner in regard to
their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist Dis-
trict Lodge 76, Local #1053, International As-
sociation of Machinists and Aerospace Wor-
kers, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through represen-
tatives of their own choosing, and to engage in
other concerted activities for the purposes of
collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
Dated By
GLAR-BAN CORPORATION
(Employer)
(Representative ) (Title)
Note: We will notify the above-named employee
if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
1876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vice Act and the Universal Military Training and
Service Act, as amended , after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Fourth Floor , The 120 Building, 120
Delaware Avenue, Buffalo , New York 14202,
Telephone 842-3100.