Gordon Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 3, 1966

158 N.L.R.B. 1303 (N.L.R.B. 1966)

GORDON MANUFACTURING COMPANY 1303
(b) Post at its facilities in Massachusetts and Connecticut, copies of the attached
notice marked "Appendix." 9 Copies of said notice to be furnished by the Regional
Director for Region 1 shall, after being signed by Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and maintained by it
for 60 consecutive days thereafter, in conspicuous places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order what steps have
been taken to comply with the recommendations herein made?o
0In 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 be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
10 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the 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 effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT withhold benefits from our employees conditioned upon a
waiver of the right to file charges or objections with the National Labor Rela-
tions Board, or to discourage, our employees from joining or assisting Local 33
or 371, Amalgamated Meat Cutters, Food Store and Allied Workers of North
America, AFL-CIO, or any other labor organization, or to interfere with the
right of our employees to select or reject representation for the purposes of col-
lective bargaining with the company concerning conditions of work.
WE WILL grant to our meat department employees, to the extent not
already provided, sick leave benefits on the same basis as previously provided
to other store employees.
AGAWAM FOOD MART, INC, ET AL. D/B/A THE FOOD MART,
Employer.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board s Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 223-3358.
Gordon Manufacturing Company and Local 406, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Ind. Case No. 7-CA-507. June 3, 1966
DECISION AND ORDER
On February 9, 1966, Trial Examiner W. Edwin Youngblood
issued his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
158 NLRB No. 131.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria]
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 brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner l
'Nothing herein shall be construed as requiring the Respondent to vary or abandon any
economic benefit or other term or condition of employment which the Respondent has
heretofore established Cf The Press Company Incorporated, 121 NLRB 976, 981
[The Board adopted the Trial Examiner's Recommended Order ]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed February 19, 1965 ,1 and an amended charge filed April 22
by the Union , a complaint was issued against Respondent on June 15 The com-
plaint was amended at the hearing , and alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended , by various acts of inter-
ference, restraint, and coercion, and violated Section 8 (a)(5) of the Act by refus-
ing to bargain collectively with the Union Respondent's answer denies the com-
mission of any unfair labor practices This case was heard before Trial Examiner
W Edwin Youngblood at Grand Rapids , Michigan, on August 24 , 25, and 26, and
briefs have been received from the General Counsel and the Respondent
Upon the entire record, including my evaluation of the witnesses based on the
evidence, and my observation of their demeanor, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, is engaged at its plant at 700 Plymouth
Avenue NE, Grand Rapids, Michigan, in the manufacture, sale, and distribution
of screw machine products and related items During the year ending June 30,
1964, Respondent manufactured, sold, and shipped products valued in excess of
$50,000 directly to points located outside the State of Michigan, and during the
same period, Respondent purchased and received products at its Michigan plant
valued in excess of $50,000, which were shipped directly to its plant from points
located outside the State of Michigan
Respondent admits, and I find, that it is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local 406, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, Ind, is a labor organization within the meaning of
Section 2 (5) of the Act
1 Unless otherwise Indicated all dates herein are in 1965
GORDON MANUFACTURING COMPANY 1305
III THE MJFAIR LABOR PRACTICES
A The supervisory issue
General Counsel contends, and Respondent denies, that Albert Dewey and John
Sanger are supervisors within the meaning of the Act Respondent performs its
operations in a building which is approximately 78 feet by 130 feet, uses some 25
to 30 machines and has about 24 employees Respondent utilizes three shifts, the
first being from 7 a in to 3 30 p in with 15 employees working that shift, the sec-
ond being from 3 30 to 12 p in with 5 employees, and the third from 12 p in to
7 30 am with 4 employees 2
Dewey works as leadman on the second or night shift In fact, DeGraaf has
introduced Dewey to employees as the "boss" of the night shift Dewey checks
the pieces produced by the employees, and when employees do not produce as they
should, Dewey speaks to them about it When employees linger on coffee breaks,
Dewey instructs them to go back to work Also, Dewey has reprimanded employ-
ees for poor work Dewey assigns employees to work on machines and moves
them to other machines as needed, e g , when a machine breaks down He also
authorizes employees to leave the plant and go home when emergencies arise such
as illness Although Dewey sometimes works on machines, this is usually not the
case
DeGraaf ordinarily leaves the plant at 5 p in so that Dewey is the only repre-
sentative of management present from 5 p in until the shift ends at 12 p in Dewey
is in charge when DeGraaf is not present DeGraaf telephones the plant usually
around 11 p in at night and talks with Dewey
John Sanger is leadman on the first shift Sanger assigns work to employees,
and shifts them around to other machines as needed He also checks the parts pro-
duced and has bad parts done over Sanger shows employees how to use various
tools, and if they are using them wrong, how they can do better When employees
have slowed down in production, Sanger has cautioned them about this, and warned
them that if they slow down they will not get their money
DeGraaf usually comes to the plant about 8 or 8 30 so that Sanger is the only
representative of management present from starting time at 7 a m until DeGraaf
arrives Sanger acted as a "boss" on the job, and new employees have been told to
follow his instructions Sanger also informed employees when they should work
overtime In addition , he has given employees permission to leave the plant early
because of illness or other emergency without checking with anyone else
Employees have been discharged because Sanger informed DeGraaf that they
were not doing good work As set forth herein, Sanger along with DeGraaf, spoke
to Respondent's employees at a meeting Respondent conducted in June 8
DeGraaf testified that he is the foreman of the plant, and personally supervises
all work in the plant DeGraaf estimated that he spends 75 percent of his time in
the plant Further DeGraaf testified that he has no help in the office and, there-
fore, handles all the filings and paperwork himself, even including making out cards
for the payroll He did mention, however, that his wife does some typing for him,
In addition, DeGraaf handles all sales and correspondence In fact, DeGraaf
described himself as the "chief cook and bottle washer " According to DeGraaf,
he gives all the orders, decides which employees will work on what machines, does
setup work, schedules all overtime, alone determines all wage increases, and does
all the hiring and firing and disciplining of employees In fact, DeGraaf testified
that if he was at home, and an employee wanted to take off, the employee took off
on his own because employees don't have to report to anybody when DeGraaf is
not in the plant Although DeGraaf admitted that Sanger has reported the names
of employees doing poor work, DeGraaf stated that he made his own investigation
of the situation Further DeGraaf testified that Dewey telephoned him if some-
thing unexpected came up during the second shift DeGraaf stated that he tells
Dewey what jobs are to be run, what employees should be assigned to which
machines, and gets the second shift started Further he schedules all work on the
third shift as well DeGraaf did admit, however, that he uses Dewey and Sanger as
2 The foregoing is based on the credited and undisputed testimony of Respondent's
President Gordon DeGraaf , and Jesus de la Gandara
8 The foregoing is based on a composite of the credited testimony of Jesus de la Gandara
(incorrectly spelled De La Gandara throughout the record), Reiderto Rodriguez Marcelino
Basiredo , William P DeGood, and Pedro Lopez
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his spokesmen in the plant, e g, he has told Dewey to warn an employee of pos-
sible discharge if the employee continued to produce bad parts DeGraaf testified
also that employees other than Dewey checked parts
I am constrained to reject DeGraaf's testimony insofar as it is at variance with
that of the witnesses of the General Counsel who testified about the duties of
Sanger and Dewey Specifically, I reject DeGraaf s testimony denying that Sanger
and Dewey have any supervisory authority, and asserting that he is the only person
in the plant with any supervisory authority It strains credulity too far to accept
DeGraaf's testimony that he alone performs all the supervisory and executive duties
and responsibilities in this plant of 24 employees
Accordingly, I find that Sanger and Dewey are supervisors within the meaning
of the Act, particularly in the light of their powers to assign and reassign employ-
ees to work at paiticular machines, to instruct employees to work overtime, to
reprimand employees, and to grant them time off, the fact that they are the sole
representatives of management present in the plant when DeGraaf is not there, and
finally the fact that if they were not supervisors DeGraaf would be responsible for
the direct and complete supervision of all 24 employees in the plant, in addition to
his other duties, which is not only a disproportionate ratio but unrealistic
B The validity of the union cards
The Union rests its claim to majority status upon certain authorization cards-
We turn now to the facts pertaining to this claim
On January 6, de la Gandara commenced talking with other employees about
organizing a union On January 7, de la Gandara went to see Union Representa-
tive Robert Anderson, and told him that the employees wanted the Union to repre-
sent them Anderson told de la Gandara that de la Gandara had to have a major-
ity of the employees signed up on union cards before he (Anderson) could make
a demand for recognition on the Company Then Anderson gave de la Gandara
some union cards, and de la Gandara commenced obtaining employees' signatures
to these cards The cards read in part as follows
GENERAL TEAMSTERS UNION, LOCAL NO 406
I HEREBY ACCEPT MEMBERSHIP IN GENERAL TEAMSTERS UNION
LOCAL NO 406, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and of my own free will
hereby authorize the above union to act for me as a collective bargaining
agency in all matters pertaining to rates of pay, wages, hours of employment,
or other conditions of employment
The card has a space for the name of the employer and the signature of the
employee, together with other data pertaining to the employee Eleven cards were
received in evidence at the hearing based on the authenticating testimony of de la
Gandara In its brief, Respondent questions specifically the validity of the cards of
Austin Oliver, Jr, Basiredo, Rodriguez, Gary Thompson, James Wiersma (referred
to inadvertently at one point in Respondent's brief as DeGood), Daniel Smack, and
DeGood
Oliver's card is challenged on the basis that the authenticating witness de la
Gandara, did not see Oliver sign his name De la Gandara credibly testified, how-
ever, that he handed Oliver a card which Oliver later returned to him with what
appeared to be Oliver's signature thereon Oliver's action in handing de la Gandara
a union card bearing Olivei's name appears sufficient to establish that Oliver did
intend to designate the Union as his bargaining agent I so find 4
Respondent challenges the cards of Basiredo and Rodriguez on the basis that (1)
de la Gandara told these employees that signing the cards meant higher wages or
better working conditions, and (2) that these employees were limited in their under-
standing of the English language, and did not comprehend the significance of their
actions in signing these cards These witnesses are Cubans and did demonstrate
some difficulty with the English language in their testimony De la Gandara cred-
ibly testified that he talked to Lopez, Basiredo, DeGood, Smack, Wiersma Gary
Thompson, Jr, Hank Romeyn, and Austin Oliver, Jr, on January 6 De la Gan-
dara told them that he would go the next day to get some union cards and that
' Howard Cooper Corporation, 117 NLRB 287 , 288 295
GORDON MANUFACTURING COMPANY 1307
"the cards would authorize the agent of the Union to protect us " De la Gandara
further stated that they would have better working conditions De la Gandara testi-
fied that he told Basiredo on January 6 that employees would perhaps get a raise
in salary and that somebody from the Union would come "to help us "
Rodriguez testified without the use of an interpreter Although he demonstrated
some difficulty at times in understanding the questions, I am not persuaded that the
record demonstrates that he was unable to comprehend essentially what was on the
card he signed Although an interpreter was used when Basiredo testified, he dem-
onstrated at least some knowledge of the English language by testifying that Sanger
had questioned him about the Union in English and that he understood the ques-
tion Also Basiredo answered at least one question in English at the hearing
Further, Basiredo testified that in talking with de la Gandara there were occasions
when an interpreter was not used As with Rodriguez, I do not believe the record
establishes that Basiredo was unable to comprehend the essential nature of the union
card he signed In any event, it is clear from the foregoing and the entire record,
that even if Basiicdo and Rodriguez did not understand what was on the cards, they
knew that the purpose of signing was to obtain a union to represent them and
bargain for them with management regarding wages and working conditions For
example, de la Gandara told Basiredo on January 6 that the cards would authorize
the agent of the Union to protect the employees, that somebody from the Union
would come to help the employees, and that they would have better working
conditions
Respondent questions Thompson's card on the basis that (1) the purpose of the
card was misrepresented to him (2) Thompson never read the card and (3) the
number of i mployees having signed was misrepresented to Thompson as being
13 when in fact only 11 cards were submitted in evidence Although Thompson
testified that he did not remember reading the card, he did admit that he never
signed a document without reading it De la Gandara testified that Thompson was
present when Romeyn and Wiersma signed cards, and that Thompson then asked
for one De la Gandara specifically testified that Thompson read the card before
signing it, and that he told Thompson that he had seven cards signed De la Gan-
dara was a straightforward witness who withstood a lengthy cross-examination with-
out material changes in his testimony, and I was favorably impressed by his
demeanor I credit his testimony
No issue is raised as to Thompson's ability to read and understand English The
purpose of the card is clearly stated thereon Under the circumstances, I reject
points 2 and 3 listed above Point 1 will now be considered
Respondent contends that the purpose of signing the union cards was also mis-
represented to Smack and DeGood As set forth in its brief, Thomson testified
that de la Gandara asked him if he would consider talking to a union representative
about joining the Union, this being around the first part of January Three or
four days later, de la Gandara approached Thompson and asked him to sign a
card According to Thompson, de la Gandara told him that he needed the cards
signed so that the union representative would come and talk to the employees
Thompson admitted under cross-examination , however, that de la Gandara talked
about getting a union in the plant, and that he understood that this was what de la
Gandara wanted to do
Smack testified that de la Gandara asked him to sign a card, and that de la Gan-
dara told him that the card would bring a union representative out to explain what
the Union might be able to do for the employees Regarding DeGood, Respond-
ent points to de la Gandara's testimony that DeGood asked a question when he
talked with de la Gandara about signing a card, and that de la Gandara told
DeGood that somebody would come to talk to the employees Respondent does not
contend that Smack or DeGood cannot read and comprehend English , and both
signed the union cards which clearly state their purpose
De la Gandara testified that DeGood came to him on January 7,5 and asked him
what he thought of the factory, adding that the Cubans were not being paid the
right salary De la Gandara told DeGood that `the best thing to do is to join the
Union' DeGood asked for a union card De la Gandara testified that he watched
DeGood read the card, and then heard him say that the Union was needed in that
5 De la Gandara actually testified it was January 6, but he did not receive the cards
until January 7
1308 DECISIONS `OF NATIONAL LABOR RELATIONS BOARD
place . DeGood signed the card as -they were sitting in de la Gandara's car. De
la Gandara testified on cross-examination:
Q. Didn't you say that was the only reason for signing the card, was to have
somebody' come and talk with them?
A. No, I told them that we signed the cards, we would have better working
conditions.
De la Gandara testified that only one employee asked about a union man com-
ing to the plant and that was DeGood. De la Gandara testified, as referred to
above, that he told DeGood that somebody from the Union would come and talk
to the employees. De la Gandara specifically denied telling any employee that if
he signed a card, the only thing that would happen would be a union representa-
tive would come to talk to the employees. De la Gandara clarified this answer by
stating that he told the employees the union representative would come and talk to
DeGraaf. Later in his testimony, de la Gandara testified that he told DeGood that
somebody from the Union would come "talk to Mr. DeGraaf." De la Gandara
specifically denied telling DeGood that the union representative would come talk to
the employees. De la Gandara stated that he told the employees that signing the
card would be joining the Union. Further that he told the employees individually
that the Union would be the best thing for the employees to get better working
conditions , and that the Union would represent them.
As set forth above, I credit de la Gandara's testimony. I am satisfied that de la
Gandara did not tell DeGood or any employee that the only result or purpose of
signing the cards would be to have a union representative come talk to the employ-
ees. Nor do I find that de la Gandara told any employee that somebody from the
Union would come talk to them. I am persuaded that de la Gandara's testimony
on this" point is the result of confusion or translation problems occasioned by the
use of an interpreter . But even if de la Gandara did' so inform DeGood, I do not
believe this would be -sufficient to constitute misrepresentations within the meaning
of applicable , Board decisions so as to vitiate the cards .6 It follows that I must
reject the contention that misrepresentations were made to the employees as to the
purposes of the card.? " Accordingly I reject the challenges to these cards made by
Respondent in its brief, and find that the cards validly designated the Union as
collective-bargaining representative of Respondent 's employees.
C. The appropriate unit, the demand for recognition , and the refusal
The parties agreed to the appropriateness of the unit as alleged in the complaint,
and I find that all production and-maintenance employees of Respondent' s Grand
Rapids, Michigan, plant, excluding office clerical employees, guards, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act. The parties also agreed
that there were 17 employees employed by Respondent in the foregoing unit on
January 8. The parties disagree, however, as to the unit placement of three
employees. Two ,of these employees are Sanger and Dewey. As I have found
above that these employees are supervisors as defined in the Act, they are excluded
from the unit.
The General Counsel also contends that Clare DeGraaf should be excluded from
the unit because he is the son of the president and owner of Respondent, Gordon
DeGraaf. John Knoor and Gordon DeGraaf jointly owned all of the stock of
Respondent until January 19. In December 1964 Knoor and Gordon DeGraaf
entered into a contract agreeing in effect to transfer full ownership of Respond-
ent to DeGraaf as of January 19.8 Accordingly, as of January 8, as General Coun-
sel contends all that remained for Gordon DeGraaf to become full and sole owner
of the stock of Respondent were the formalities in connection with the transfer of
stock agreed to in December and effective January 19. The Board held in Bridge-
ton Transit, 123 NLRB 1196 that individuals employed by a corporation wholly
owned by their parent are excluded from the definition of "employee" under Sec-
6 Cf. The Shelby Manufacturing Company, 155 NLRB 464.
7 I do not think Respondent 's contention is strengthened , as urged in its brief, by
Wiersma 's statement that, he did not want the Teamsters Union which statement was
in the course of illegal interrogation of Wiersma about his union activities by Sanger, as set
forth herein.
8 The foregoing is based on the credited testimony of Knoor.
GORDON MANUFACTURING COMPANY 1309
tion 2(3) of the Act as individuals employed by their parents .9 I believe and find
that the fact that full ownership of the stock was not vested in Gordon DeGraaf
until January 19 is inconsequential for determining under Section 2(3) of the Act
that Clare DeGraaf was employed by his parent. Accordingly, I find that Clare
DeGraaf was not an employee within the meaning of the Act on January 8, and is
excluded from the unit.
Consistent with the foregoing, I find that there were 17 employees in the unit as of
January 8 when the Union made its demand on Respondent for recognition as
collective-bargaining representative of its employees . As the Union had been val-
idly designated by 11 employees in the unit as their bargaining representative, I
find that the Union was the representative of a majority of the employees in the
appropriate unit on January 8.
On January 8, Union Representative Anderson went to Respondent's offices at
Respondent's plant. There Anderson handed to Knoor the Union's letter (General
Counsel 's Exhibit 3) requesting recognition as representative of Respondent's
employees and stating in part that : "One of our representatives will call on you at
your office on Wednesday, January 13, 1965, at 10 a.m. for the purpose of negoti-
ating a collective-bargaining agreement . If such date is inconvenient for you, please
notify us so that another more convenient date can be agreed upon . We are will-
ing to permit a neutral person to check our authorization cards at the time of the
meeting for the purpose of verifying our majority status." The letter was in a
sealed envelope, and Knoor placed it on his desk without opening it. Knoor stated
that he was expecting the letter. Anderson suggested that Knoor read the letter,
and Knoor replied, "Why should I bother to read it? I will give it to my attorney."
Knoor asked Anderson when he was going to organize the men, and Anderson
replied that they were already organized . Anderson requested that Knoor meet
with union representatives in Knoor's office the following Wednesday morning to
negotiate a contract.10
By letter dated January 11 (General Counsel's Exhibit 4) Respondent replied to
the Union's request for recognition and bargaining as follows:
General Teamsters Union
Local 406, Int. Bro. T.C.W. & H.
3315 Eastern Ave., SE.
Grand Rapids 8, Michigan
Attention: Mr. Lee Haney, President
Gentlemen:
In your letter of January 8, 1965 you demand that we sit down & bargain a
contract with one of your professional organizers. You believe you are enti-
tled to this right because of some memberships you may have sold to a few
of our employees.
We do not believe the meeting you suggest next Wednesday would be worth-
while. In the first place, we have no knowledge that a majority of our employ-
ees have freely named you their exclusive bargaining agent. The card check
you suggest would prove nothing since we understand that several employees
signed for the sole purpose of getting an election.
It seems to us that a free election, supervised by a government agency, is the
only fair way to proceed. In that way, we will all know what jobs are cov-
ered, who can vote and what are the true wishes of the majority.
We do not believe that our employees want or need representation by your
union . However, that is a matter to be decided by the employees-not you
and not the company.
The decision will be made after all the issues are known and fully discussed.
Yours very truly,
GORDON MANUFACTURING CO.
John Knoor
As set forth in this letter, Respondent's primary basis for refusing to recognize
and bargain with the Union was its stated disbelief that the Union represented a
majority of its employees based on its understanding that several employees signed
cards for the sole purpose of getting an election. Thus the issue is whether
Respondent in good faith raised the question of the Union's majority status.
Knoor 's attention was directed to this portion of his letter , and he testified that
0 See also Marriello Fabrics, Inc. and Michael Marriello, 149 NLRB 883.
10 The foregoing is based on a composite of the credited testimony of Anderson and Knoor.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he talked with several employees about the Union on Monday, January _11, the
day he wrote the letter. Knoor testified -that Thompson came into' )the office and
said, "I apologize.". Thompson then said, "I did something I should not have
done. I, signed a card." Knoor also thought Thompson said, "I 'don't recall, I
don't really know what I signed my name to." ' Knoor testified that Romeyn told
him that he had not read the card. Knoor recalled also that Clarence..Van Polen
told him that he would-not "work'. in a union shop, or, something to.that.,effect."
It is readily apparent from the 'foregoing that there. is nothing in. these conversa-
tions which could reasonably be the basis for the statement in Knoor's letter that
several employees signed for the "sole purpose of getting an election." rMoreover,
Knoor's testimony on,this point.was somewhat-"vague and indefinite, and he was
not even positive about when he had talked with these employees. Knoor gave
an, affidavit to the Board in May in which he'rstated that, he did not recall the
specific' persons who told him the men had signed cards on the mistaken under-
standing of what they were doing. I conclude and find. that Knoor did not in
fact have an understanding -that employees had signed for the sole purpose of get-
ting an election, and that his statement to that effect in his letter-,was not the
reason for Respondent's refusal to recognize the Union. What then' did occasion
Respondent's refusal' to recognize the Union? We 'turn now. ,to the events
occurring after the refusal to which the General Counsel alludes in his brief as
evidencing Respondent's bad faith refusal to bargain:
D. Conduct subsequent to the refusal
On January 14, Pedro Lopez went to DeGraaf's office to get his paycheck.
DeGraaf showed Lopez a paper that somebody had sent him from the Union
which presumably was the Union's letter: DeGraaf then asked Lopez if he had
signed a union card. After Lopez replied in the negative, DeGraaf stated that
if they had a union in the factory,' he would have to close the doors'.,
About 2 days later, Knoor asked Lopez if he had signed a union card. After
Lopez replied in the negative, Knoor told him not to sign the card because soon
he would receive a raise in salary.
About the second or third week in January, James Wiersma had a conversation
with Sanger about the Union. Sanger asked Wiersma if he wanted a union or
liked the idea of a union. Two or three days later Sanger asked Wiersma the
same question.
On January 21, Daniel Smack was coming into the shop when Dewey asked
him if he had been to the "big meeting." This occurred the same day as but
after a union meeting was held. Possibly 3 weeks before the union meeting just
referred to, Smack had a conversation with Sanger about the Union. Sanger told
Smack that the Union would not help the employees, but that if they could have
a union within the shop and pick their own negotiator, then if they had any
grievances, their negotiator could go to the office and present their grievance,
"instead of paying an outside union to come in." Sanger said that he thought it
would be better for the employees to pick "a committee in the shop."
On January 28, Reiderto Rodriguez went to DeGraaf's office to pick up his
paycheck. DeGraaf started to talk about the Union, and told Rodriguez that if
the Union got in, he would not "pay any more overtime, any more raises."
DaGraaf continued by saying that if the Union did not get in he would give
employees a raise and more overtime, and the factory would be better for the
employees . On cross-examination, Rodriguez was asked this question: "Didn't
he say that he would not give more raises until the Union was in or out and he
knew what he could do?" Rodriguez answered, "Yes." However, Rodriguez later
indicated that he did not understand this question and specifically testified on cross-
examination when asked what DeGraat said, "He said the Company is making a
lot of money but until the Union-if the Union got in, he couldn't make anything.
It will be more after the Union, if they got out of it, it will be more money, more
overtime, but if the Union got in, it won't be anything." I conclude and find that
Rodriguez' testimony establishes that DeGraaf promised employees more money if
the Union did not get in. '
On February 13, Marcelino Basiredo had a conversation with John Sanger
about the Union. Sanger asked Basiredo if he had attended the union meeting
held the day before at 4 o'clock. Sanger then repeated the question and asked
Basiredo to write whether,or not he attended the meeting on a piece of paper.
On March 4, Sanger asked DeGood if he was going to a meeting at the Pant-
lind Hotel. A meeting had been arranged at the Pantlind by an agent of the
Board . DeGood replied that he was not going to the Pantlind, but that he was
GORDON MANUFACTURING COMPANY 1311
going to the union hall Sanger then said, "So you are going to join the damn
union " Further, Sanger said that if the Board called him to the meeting, he
would just tell them to "go to hell " 11
On March 21, de la Gandara was called into the office of DeGraaf who told
de la Gandara that his mother was not feeling well, and further that he had prob-
lems with the Union DeGraaf said further that he paid part of the earnings
from the business to his mother because he had received the business from his
father DeGraaf asked de la Gandara why he got "implicated with this problem
of the Union because he would close the door of the factory and would sell the
material, that he would not sign any contract to us, that he would close the factory,
and would sell the machinery, and he would lend or lease the factory to somebody
else " 12
DeGi aaf was asked in his testimony about his conversation with Lopez on
January 14, and specifically if there was discussion about closing the plant
DeGraaf testified that he mentioned the fact that if "the Company goes in the
red if we have to meet these raises, there is no alternative but to close the door
With respect to his conversation with Rodriguez on January 28, DeGraaf testi-
fied that he told Rodriguez "that the Company cannot afford to raise wages to
what the Union wants them to " DeGraaf 4dded that if the Company lost money,
he would be forced to close the doors
Regarding his conversation of March 21, with de la Gandara about closing the
plant, De Graaf testified that he told de la Gandara that he would tell him the
same thing he told everybody else, which was that if the Company lost money
and went into the red, he would have to close the door
It is apparent that DeGraaf's testimony does not directly deny the testimony of
Lopez, Rodriguez, and de la Gandara, rather it tends to support their testimony
Moreover, as found above, I was not impressed with the testimony of DeGraaf
about the supervisory status of Dewey and Sanger To the extent that DeGraaf's
testimony is at variance with that of the employees referred to above, it is
rejected and their testimony is accepted
Knoor was asked about his conversation with Lopez in January Knoor did
not deny interrogating Lopez about signing a union card Knoor testified that he
told Lopez that he could not give him a raise because of the Union, and that
Lopez replied that he did not want a union and that he did not sign a union card
Lopez' version is more plausible than that of Knoor, and is consistent with other
credited testimony herein Accordingly, I credit Lopez' testimony and reject that
of Knoor to the extent it is at variance with that of Lopez
Dewey and Sanger did not testify in this proceeding, and the uncontradicted
testimony involving these supervisors is credited
E Conclusions with respect to the bona fides of Respondents refusal
It is clear from the foregoing that following the Union's demand, Respondent
through DeGraaf, Knoor, Dewey, and Sanger engaged in the following conduct
(1) Threatened employees with closing the factory if the Union became bar-
gaining representative of Respondent's employees
(2) Interrogated its employees about their union activities
(3) Suggested to its employees that the Union would do them no good, but
that their own union within the factory could negotiate for them instead of pay-
ing an outside union
(4) Threatened its employees by telling them that if the Union became their
bargaining representative there would be no more overtime or raises
(5) Informed its employees that it would not sign a collective-bargaining
agreement with the Union
(6) Promised its employees raises and overtime if the Union was not selected
as their collective-bargaining representative Moreover, and further illustrative of
Respondent's attitude toward the Union, Sanger in a discussion with DeGood
cursed the Union, and stated that if the Board requested his appearance at a
meeting, he would tell them to "go to hell "
"The foregoing statements of Sanger were not offered by the General Counsel as evidence
with respect to a violation of Section 8 (a) (1) of the Act, but rather as evidence showing
the 'union animus of the Respondent
ss The foregoing is based on the testimony of Lopez, Wiersma Smack, Rodriguez,
Basiredo , DeGood, and de la Gandara
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I can only conclude from all this conduct and the entire record that Respond-
ent's refusal to recognize the Union was motivated by a desire to gain time in
which to seek to undermine the Union, and was also a complete rejection of the
collective-bargaining process I therefore find that Respondent since January 11
has refused to bargain with the Union as the exclusive representative of its em-
ployees in an appropriate bargaining unit in violation of Section 8(a)(5) of the
Act 13 In view of this finding, the John P Serpa, Inc case, 155 NLRB 99, cited
by Respondent in its brief is inapposite Nor can I under these circumstances
attach the significance Respondent desires to the subsequent breakdown of efforts
to arrange a consent election or to the withdrawal of its petition by the Union
Likewise, any loss of majority status by the Union subsequent to its demand for
recognition such as Respondent sought to establish by the petition signed by certain
employees on February 11, and the letter signed by certain employees on March 1,
would be attributable to Respondent 's unlawful conduct, and therefore insufficient
to nullify the Union's majority status or to effect the remedy recommended
herein 14
F Findings and conclusions regarding the alleged interference, restraint,
and coercion
I find that Respondent violated Section 8(a)(1) of the Act as following 15 (1)
DeGraaf's threat to Lopez of closing the factory if the Union became bargaining
representative of the employees, DeGraaf's threat to de la Gandara of closing
the factory if the Union became bargaining representative, and his statement to
de la Gandara that he would refuse to sign a collective-bargaining agreement (2)
In context with the other unfair labor practices found herein, DeGraaf and Knoor
coercively interrogated Lopez by asking Lopez if he had signed the union card,
Sanger coercively interrogated Wiersma by twice asking him if he wanted a
union or liked the idea of the Union, Dewey coercively interrogated Smack by
asking him if he had been to the "big meeting," and Sanger coercively interrogated
Basiredo by twice asking him if he had attended a union meeting and by asking
him to write his answer (3) Sanger's statement to Smack that the Union would
not help the employees, but if they formed their own union in the shop, their
negotiator could go to the office and present their grievances instead of paying
an outside union to represent them (4) DeGraaf's promise to Rodriquez of a
raise and more overtime if the Union did not become bargaining representative of
its employees
The complaint, as amended, alleges in paragraph 9(i) and (j) that DeGraaf
granted wage increases , hospitalization and insurance benefits, and announced a
bonus system for the purpose of discouraging the union activities of its employees
When Smack was hired on December 14, 1964, he was told that there would be
a review for a possible 25-cent merit wage increase after a certein period of time
In February or March, Smack asked his leadman, Al Dewey, for a raise Dewey
said that he did not think it would do any good, but that he would ask Smack
also talked to DeGraaf about a raise, and DeGraaf said that he could not give
the raise on account of the Union DeGraaf said that if he gave Smack a raise
"they could use it for charges of bribery or buying me [Smack] off "
Smack received a wage increase on June 19 of 25 cents an hour DeGraaf
informed Smack of the raise after telling him that he (DeGraaf) had talked to
his lawyer who advised that he could give the increase if he wanted to Basiredo
also was granted an increase in pay by DeGraaf of 5 cents an hour some time
in June
In the latter part of May, Smack talked to a Prudential Insurance Company
agent about getting an insurance form so that his Prudential insurance could be
written in his own name Smack advised the agent that the Respondent had a
18 Joy SW, Mills, Inc, 85 NLRB 1263 , enfd as modified on other grounds 185 F 2d
732 (C A D C ), cert denied 341 U S 914
11 Franke Bros Company v N L R B , 321 U S 702, Medo Photo Supply Corporation
v N L R B , 321 US 678 687, cf also Southland Paint Company, 156 NLRB 22, 60
LRRM 1546
1 At the close of the hearing , General Counsel advised that be did not contend that
Respondent had violated the Act in any way other than as alleged in the complaint, and
that he did not wish to move to amend the complaint Accordingly, the findings herein
are restricted to the allegations of the complaint
GORDON MANUFACTURING COMPANY 1313
group insurance plan. While Smack was there , the agent called DeGraaf and
asked what type of insurance they had. DeGraaf apparently told the agent to
have Smack come back to the shop and he would see what he could do about it.
About the same time Smack received the wage increase referred to above,
DeGraaf informed him that he and his dependents were entitled to the hospitaliza-
tion benefits.
Some time in June prior to June 19, Respondent held a meeting of its employees.
DeGraaf and Sanger spoke to the employees. DeGraaf told them effective July 1
they would all receive a bonus system. DeGraaf said that he would have a bank
official draw up an agreement so that employees would get a percentage of the
yearly profits, either quarterly, semiannually, or annually, whichever they chose.
DeGraaf said that he was trying to help the employees out as best he could.16
A petition for certification was filed by the Union on February 8. On Feb-
ruary 18, the Union sent a telegram to the Acting Regional Director advising that
Section 8(a)(1), (3), and (5) charges were being filed against the Employer,
and requesting postponement of an election hearing then scheduled for February 23
until, the charge was disposed of. On February 19, a charge alleging violations
of Section 8(a)(1), (3), and (5) was filed by the Union against the Employer.
On February 19, a telegram was sent by the Acting Regional Director to the attor-
ney for the Union postponing the hearing indefinitely because of the blocking
charge. On April 22, an amended charge was filed against the Employer alleging
violations of Section 8(a)(1), (3), and (5). On June 15,-Attomey Kleiner sent
a telegram requesting withdrawal of the petition since a complaint was issuing on the
Section 8(a)(5) charge. On June 15, the complaint issued against the Employer
alleging violations of Section 8(a)(1) and (5). On June 21, the Regional Direc-
tor by letter, with copies to the Union and its attorney, advised the,Employer that
the petition had with his approval been withdrawn.17
It is the theory of the General Counsel and the Union that Respondent violated
Section 8 (a) (1) of the Act by granting wage raises, hospitalization and insurance
benefits, and instituting a bonus or profit-sharing system at a time when the Union
claimed to represent the employees. The General Counsel contends these benefits
were announced for the purpose of influencing employees to abandon their support
of the Union.
- Obviously DeGraaf knew of the persuasive effect that wage increases and other
benefits were likely to have in dissuading employees from supporting the Union
because he gave as his reason for refusing Smack a raise in February or March
his belief that he might be accused of "buying" Smack off. Also it is significant
that when DeGraaf announced the institution of the bonus or profit-sharing system
at the meeting with employees in June he told the employees that he was trying
to help them out as best he could. When the foregoing conduct is considered in
context with the earlier extensive and flagrant unfair labor practices Respondent
engaged in, as found above, including DeGraaf's promise of wage raises to em-
ployees if the Union did not become bargaining,'representative, of the employees,
all of which were reasonably calculated to cause employees to withdraw their sup-
port of the Union, I believe- the General Counsel has made out a strong prima
facie case for finding that these benefits likewise were granted for the same purpose.
Although Respondent may have refrained from granting benefits while the
Union's petition was_ pending, I do not believe the Union's withdrawal of its petition
on June 15 explains or provides a proper defense for Respondent's going ahead
and granting these benefits at: a time when it was on notice of the- Union's claim
to represent its employees at least by virtue of the issuance of the complaint
alleging Respondent's wrongful refusal to recognize and bargain with the Union.
This is particularly true in the light of the fact that there is no evidence of a fixed
decision by Respondent to grant these benefits prior to the beginning of the Union's
campaign. There was some vague testimony by DeGraaf indicating that he' may
have discussed with Knoor the possibility of instituting a bonus system prior to
January. In addition, DeGraaf testified that although he did not mention the word
"bonus," he did tell Rodriguez in December 1964 that he could not give "details"
but there was "something" that would give Rodriguez and other employees more
money if they were willing to work for it. I do not believe, however, that the
1e The foregoing is based on the credited and undisputed testimony of Smack, Basiredo,
and Lopez.
17 The foregoing is based upon a stipulation of the parties.
221-731-67-vol . 1®8-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing is sufficient to overcome the strong prima facie case established by the
General Counsel
I therefore find, as alleged in the amended complaint, that Respondent violated
Section 8(a) (1) of the Act by granting wage increases, insurance benefits, and
announcing the institution of a bonus or profit sharing system for the purpose of
discouraging the union activities of its employees 18
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action which I find necessary to effectuate the policies of the Act
Having found that the Respondent engaged in unfair labor practices by refusing
since on or about January 11 , 1965, to bargain with the Union as the exclusive
representative of its employees in an appropriate unit , I shall recommend that
the Respondent cease and desist therefrom, and, upon request , bargain collectively
with the Union , and, if an understanding is reached , embody such understanding
in a signed agreement
Having found that the Respondent engaged in extensive and flagrant unfair labor
practices in violation of Section 8(a) (1) of the Act, I shall recommend that the
Respondent cease and desist therefrom or from in any other manner infringing
upon the rights of its employees guaranteed in Section 7 of the Act
Upon the basis of the above findings of fact and upon the entire record in this
case , I make the following
CONCLUSIONS OF LAW
1 Gordon Manufacturing Company is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act
2 Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind, is a labor organization as defined in Section
2(5) of the Act
3 All production and maintenance employees at Respondent's Grand Rapids,
Michigan plant, excluding office clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act
4 The Union at all times material herein has been, and now is, the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act
5 By refusing since on or about January 11, 1965, to bargain collectively with
the Union as the exclusive representative of the employees in the aforesaid appro-
priate unit, the Respondent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act
6 By interfering with, restraining, and coercing its employees, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(1) of the
Act
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 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 recommend that Gordon Manufacturing
Company, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively concerning wages, rates of pay, hours of
employment and other conditions of employment with Local 406, International
za Cf NLRB v Douglas d Loma8on Co , 333 5' 2d 510 (CA 8), enfg 142 NLRB 320
GORDON MANUFACTURING COMPANY 1315
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Ind., as the exclusive representative of all its employees in the following appropriate
unit:'
All production and maintenance employees at Respondent's Grand Rapids,
Michigan, plant, excluding office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) Coercively interrogating its employees concerning their union membership,
activities, or sympathies.
(c) Informing its employees that it will not ' sign a collective-bargaining
agreement.
(d) Threatening its employees with closing the plant ' if the Union became
bargaining representative. '
(e) Suggesting to its employees that the Union would not help them, but that
a committee of employees within the plant should be formed to represent them
instead of paying an outside union to do so.
(f) Promising its employees wage increases and more overtime or other benefits
if the Union did not become their bargaining representative.
(g) Granting wage increases, hospitalization insurance benefits, or other bene-
fits and announcing a bonus system for the purpose of discouraging the union
activities of its employees.
(h) In aIiy other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them in Section 7 of the Act, except to
the extent that such right is affected by the provisos in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
'(a) Upon request, bargain collectively concerning wages, rates of pay, hours
of employment, and other conditions of employment with Local 406, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Ind., as the exclusive representative of all employees in the above described unit,
and if an agreement is reached, embody such understanding in a signed agreement.
(b) Post at its plant copies of the attached notice marked "Appendix." 19 Copies
of said notice, to be furnished by the Regional Director for Region 7, shall, after
being duly signed by the Respondent's representative, be posted by the Respondent
immediately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision what steps the Respondent has
taken to comply herewith 20
-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 be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
20 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the 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 effectuate the policies of the National Labor
Relations -Act, as amended, we hereby notify our employees -that:
WE WILL, upon request, bargain with Local 406, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., as
the exclusive representative of all the employees in the bargaining unit
described below with respect to wages, rates of pay, hours of employment,
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other conditions of employment and, if an understanding is reached,
embody such understanding in a signed agreement . The bargaining unit is:
All production and maintenance employees at Respondent 's Grand Rapids,
Michigan , plant, excluding office clerical employees , professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL NOT coercively interrogate our employees concerning their union
membership , activities , or sympathies.
WE WILL NOT inform our employees that we will not sign a collective-
bargaining agreement.
WE WILL NOT threaten our employees with closing the plant if the Union
becomes their bargaining representative.
WE WILL NOT suggest to our employees that the Union would not help
them but that a committee of employees within the shop should be formed
to represent them instead of paying an outside union to do so.
WE WILL NOT promise our employees wage increases and more overtime
or other benefits if the Union does not become their bargaining representative.
WE WILL NOT grant wage increases , hospitalization insurance benefits, or
other benefits, or announce a bonus system for the purpose of discouraging
the union activities of our employees.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of the rights guaranteed to them in Section 7 of
the Act except to the extent that such right is affected by the provisos in
Section 8(a)(3) of the Act.
GORDON MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, 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, 500
Book Building , 1249 Washington Boulevard , Detroit, Michigan , Telephone No.
226-3244.
Tennessee Packers, Inc. Frosty Morn Division and Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local 405. Case No. 26-CA-1388. June 3, 1966
SUPPLEMENTAL DECISION AND ORDER
On June 28, 1963, the National Labor Relations Board issued a.
Decision and Order in the above-entitled case, finding that the
Respondent had discriminated against certain named employees in
violation of Section 8(a) (3) and (1) of the National Labor Rela-
tions Act, as amended, and requiring the Respondent to reinstate
the named employees to their former or substantially equivalent
positions and to make them whole for any loss of pay suffered by
reason of Respondent's discrimination against them Thereafter,,
the Board's Order was enforced by the United States Court of'
1143 NLRB 494.
158 NLRB No. 130.