Gotham Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1967

167 N.L.R.B. 670 (N.L.R.B. 1967)

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gotham Industries , Inc. - Crawford Plastics Corp.
and Retail , Wholesale and Department Store
Union , AFL-CIO. Case 1-CA-5687
October 2, 1967
DECISION AND ORDER
BY MEMBERS FANNING,JENKINS, AND ZAGORIA
On June 19, 1967, Trial Examiner Robert E.
Mullin issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondents had not
engaged in a certain alleged unfair labor practice
and recommended dismissal of this allegation of the
complaint. Thereafter, the Respondents filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
cross-exceptions 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, cross-
exceptions, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the
following modifications:
1. The General Counsel excepted to the failure
of the Trial Examiner to find a violation of Section
8(a)(4). Inasmuch as the actions alleged to con-
stitute the 8(a)(4) have been found in violation of
Section 8(a)(1), and that, in any event, the remedy
to be afforded if a violation were found would be the
same, the Board finds it unnecessary to take a posi-
tion on the Trial Examiner's recommendation of
dismissal of that portion of the complaint.
2. Contrary to the Trial Examiner, we do not be-
lieve that the unfair labor practices found herein,
considered against the background of the Respond-
ents' prior unfair labor practices, ar° so aggravated
as to warrant unusual remedial action. Accordingly,
we shall delete from the Trial Examiner's Recom-
mended Order the provisions requiring that copies
of the notice be mailed to each employee and be
read to assembled employees in the plant.
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondents, Gotham Industries,
Inc., and Crawford Plastics Corp., Fitchburg, Mas-
sachusetts, their officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Paragraphs I(a)(1) and II(a)(1) are amended
to read as follows:
"(1) Promising, announcing, and granting wage
increases to employees during the pendency of a
representation election should such conduct ...."
2. Amend paragraph I(b)(1) and 11(b)(1) of the
Trial Examiner's Recommended Order to read:
(1) Post at Respondents' plant in Fitchburg,
Massachusetts, copies of the attached notices
marked "Appendix A and Appendix B." Copies of
said notices, on forms provided by the Regional
Director for Region 1, after being duly signed by
the Respondents' representatives, shall be posted
by the Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecu-
tive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondents to insure that said notices are
not altered, defaced, or covered by any other
material.
3. Paragraphs I(b)(2) and II(b)(2) are deleted,
and paragraphs I(b)(3) and II(b)(3) are renumbered
respectively I(b)(2) and II(b)(2).
4. The third indented paragraphs in Appendixes
A and B attached to the Trial Examiner's Decision
are amended to read:
WE WILL. NOT promise, announce, and grant
wage increases to our employees during the
pendency of a representation election should
such conduct ....
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case was
heard in Fitchburg, Massachusetts, on February 20 and
21, and March 2 and 3, 1967. The complaint, originally
issued on January 10, 1967, and amended at the hearing,'
alleged that the Respondents had violated Section 8(a)(1)
and (4) of the Act. In their answers, duly filed, the
Respondents conceded certain facts with respect to their
business operations but denied the commission of any un-
fair labor practices.
All parties entered appearances at the hearing through
their attorneys. All were given full opportunity to ex-
amine and cross-examine witnesses, to introduce relevant
evidence, to argue orally after presenting their evidence,
ORDER
Pursuant to Section 10(c) of the National Labor
The complaint, as amended , was based on an onginal charge filed on
October 13, 1966 , and an amended charge filed on January 3, 1967
167 NLRB No. 91
GOTHAM INDUSTRIES, INC.
and to file briefs. The parties waived oral argument. A
motion to dismiss, made at the close of the hearing by the
Respondents, is disposed of as appears later in this Deci-
sion. On April 28, 1967, the General Counsel and the
Respondents submitted thorough and comprehensive
briefs to the Trial Examiner.
Upon the entire record in the case, including the briefs
of Counsel, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Gotham Industries (herein called Gotham)
is a New York corporation. Respondent Crawford
Plastics (herein called Crawford) is a Massachusetts cor-
poration. Both have an office and place of business in
Fitchburg, Massachusetts, known as the Fitchburg plant,
the site of the labor dispute that is involved in this matter.
At this location they are engaged in the manufacture, sale,
and distribution of plastic housewares and related
products.
Gotham and Crawford are two closely related cor-
porate entities which are owned and controlled by various
members of the Gottsegen family. In Fitchburg they con-
duct their operations from the same building and their
managerial personnel share office space, as well as clen-
cal and administrative personnel.
The General Counsel alleged that Gotham and Craw-
ford are affiliated businesses with common officers,
directors, and ownership, and constitute a single in-
tegrated business enterprise with a common labor policy.
Initially, the Respondents denied this contention. At the
outset of the hearing, the General Counsel called as an
adverse witness, Robert Gottsegen, vice president of
Crawford and the general manager of both Gotham and
Crawford,z who was examined at length as to the inter-
relationship of the officers, shareholders, directors, and
operations of the two corporate entities. On the second
day of the hearing, the Respondents withdrew their op-
position, for the purposes of this proceeding, to the allega-
tion that they are joint employers engaged in a single busi-
ness within the meaning of the Act.3
In their answers, the Respondents conceded that in the
course and conduct of their business each annually
receives from points outside the Commonwealth of Mas-
sachusetts goods valued in excess of $50,000 and each
annually ships to points outside the Commonwealth
goods valued in excess of $50,000.
Upon the foregoing facts, the Trial Examiner con-
cludes and finds that Gotham Industries, Inc., and Craw-
ford Plastics Corp., constitute a single integrated business
enterprise within the meaning of the Act and that they are
engaged in commerce within the meaning of the Act.
ii. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union,
AFL-CIO, herein called Union, is a labor organization
within the meaning of the Act.
1 In their answers both Crawford and Gotham conceded that Robert
Gottsegen acted as their general manager
3 In an amendment to the complaint, offered on the first day of the hear-
ing, the General Counsel alleged that, in addition to being a single em-
ployer within the meaning of the Act , the Respondents were engaged in a
joint venture . The Respondents , however, made no concession as to this
latter allegation Since the Respondents ' concession as to their joint em-
III. THE ALLEGED UNFAIR LABOR PRACTICES
671
A Background and Sequence of Events
The issues in the present case involve the latest round
in a dispute between Respondent Gotham and the Union
which began several years ago.
In a Board-conducted election held at the Gotham
plant on November 21, 1963 (Case 1-RC-7611), 29 em-
ployees voted for the Union and 137 voted against it.
Thereafter, the Union filed objections to conduct affect-
ing results of the election. On December 27, 1963, and
after an investigation of these objections, the Regional
Director issued a Supplemental Decision wherein he
found that Gotham's maintenance of an illegal no-dis-
tribution rule during the campaign period had infringed on
employee rights. Accordingly, he set aside the election
and ordered that a new election be held. I n so doing the
Regional Director stated that the rerun election would be
held "at a date and time to be determined" and that the
eligible voters in such election "will be those employees
in the unit who will have been employed during the
payroll period immediately preceding the issuance of the
new Notices of Election."
Immediately after the issuance of this Decision, the
Union filed unfair labor practice charges against Gotham.
Gotham Industries, Inc., Case 1-CA-4429. As a result,
the scheduling of a new election was held in abeyance
pending the disposition of these charges. On December
14, 1964, the Board found that Gotham had violated Sec-
tion 8(a)(1) and (3) by unlawfully discharging one Joseph
Landry, the leader of the Union's organizational cam-
paign, discriminatonly suspending another employee,
promulgating an illegal no-distribution rule, and unlaw-
fully interrogating its employees. Gotham Industries,
Inc., 150 NLRB 63.
On about May 4, 1966, the United States Court of Ap-
peals for the First Circuit filed a per curiam opinion,
sustaining the Board's Decision in the above-captioned
case.4 Thereafter, in compliance with the decree of the
court of appeals, Respondent Gotham posted the
requisite notice and complied with the other provisions of
the Board's Order. On August 30, 1966, the Regional
Director notified Gotham that it had complied satisfac-
torily with the provisions of the Board's Decision and
Order, as enforced by the decree of the court of appeals,
and that Case 1-CA-4429 was closed. The letter from
the Regional Director concluded with an admonition that
the closing was conditioned upon continued observance
of the Board's Decision and Order, and that further
proceedings would be undertaken should subsequent
violations occur.
On September 23, 1966, a representative of Region 1
telephoned Robert Gottsegen to inform him that the
rerun election would be scheduled shortly. On October
7, an agent of the Regional Director wrote the parties that
the election would be held at the Fitchburg plant on Oc-
tober 20 and 21, and that it would cover the production
and maintenance employees of both Gotham and Craw-
ployer status disposed of the principal issue as to their corporate relation-
ship, it is the conclusion of the Trial Examiner that a finding on the joint
venture question is not necessary to any issue in this case
' Neither the General Counsel nor the Respondents have given any
citation for this case in the court of appeals. The opinion appears to have
been unreported
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ford By letter, dated October 10, the Regional Director
mailed to the Respondents copies of the conventional
notices of election for posting at the Gotham and Craw-
ford facilities.
On October 13, 1966, the Union filed the unfair labor
practice charge out of which the present proceeding
arose Soon thereafter, and as a result of the charge hav-
ing been filed, the Regional Director notified the Re-
spondents that the election scheduled for October 20
and 21 had been postponed
On about December 1, 1966, the Respondents put into
effect the wage increase that is in issue here.
B. Analysis of the Evidence ; Contentions of the Parties;
Findings and Conclusions in Connection Therewith
The General Counsel alleged that in September 1966
the Respondents announced a wage increase to undercut
the strength of the Union's appeal in the forthcoming
election and that when the Union filed an unfair labor
practice charge, the Respondents endeavored to convince
the employee that because of this action by the Union,
they would not get the increase which the Respondents
had promised. All of these allegations are denied by the
Respondents in their entirety
The great bulk of the production and maintenance em-
ployees here involved worked in the molding department
of Crawford and in the assembly room at Gotham.
Early in August 1966, some of the day employees in
the molding department called a meeting in the plant
lunchroom at the end of their shift. In addition to the em-
ployees, several supervisors were present, including
Plant Superintendent Alfred Stauble and several
foremen. Those present discussed with Stauble, and the
others, the prospects for a wage increase. Stauble
promised the employees that he would bring the matter
up with the plant management. According to Stauble,
later that day he discussed the employees' request with
Robert Gottsegen, general manager of both Crawford and
Gotham. Several employees of the molding room testified
that a short while later, and before the end of August,
Gottsegen called them to his office and told them that the
Company planned to grant a raise in December
On about September 14, Lawrence Gottsegen, vice
president of Gotham and an officer in Crawford, held a
meeting for the employees in the assembly department of
Gotham and told them that they would get a wage in-
crease that would be effective early in December.
On September 22, the employees in the molding de-
partment of Crawford received a notice in their pay en-
velopes, signed by Robert Gottsegen, that they would
receive a 10-cent-per-hour wage increase effective
December 1, 1966
As found earlier, by letter dated October 7, the Re-
gional Director notified the Respondents that the rerun
election was scheduled for October 20 and 21. Almost
immediately thereafter, in a letter dated October 11, and
mailed to all of the employees, Robert Gottsegen set forth
his views as to the issues in the forthcoming election. In
this letter Gottsegen reviewed the earlier election which
the Union had lost and stated that the Board had decided
that a new election would have to be held within a few
days In an appeal to the employees that they mark their
ballots for "no"union, Gottsegen stated, in pertinent part
We agree now (as we did in 1963) that all of our em-
ployees should have a chance by a fair, free and
secret ballot in the true democratic way to once again
tell these outside union sales-organizers and, perhaps
a few bellyachers in our midst who are trying to mess
with your job security that you don't want their
brand of trouble making here.
In the next couple of weeks , you will probably hear
many of the same shop -worn promises , the same ex-
aggerated claims that this union made to our people
before. All kinds of arguments to persuade you to
vote for the union will be made Sweet talk on the
one hand and pressure on the other are the usual in-
gredients in the experienced union organizers' sales
pitch . But we are not going to sit idly by and let false
promises deceive you. We aim to give you THE
FACTS We know that you 're all grown men and
women, intelligent enough to have your own
judgment , experience and common sense guide you
in the right direction
*
Ask yourselves what you think the union can do for
you in this plant that we, working cooperatively
together-that is, you and the company-cannot ac-
complish without a union here.
Ask yourselves how a union tries to make good on all
those big promises if a company cannot afford them
or doesn't want to grant them. Remember that when
the chips are down the union's only weapon is a
strike and some of these, as you must know, don't
settle so fast. Ask employees in union shops how
long it would take them to make up pay lost in a long
strike over something as trivial as one employee's
claimed right to a transfer or an extra half day's
holiday
I want to make it absolutely clear that is not the com-
pany's fight- this is your fight' These are your
futures you ' re going to be playing with. As far as the
company is concerned , you can join a union or refuse
to join ; you can argue for a union or against one; you
can sign a union card or refuse to; you can vote for or
against a union. Your rights to exercise your choice
freely will be fully protected , whichever side you're
on. The company will not inflict any punishment or
reprisals for your acting one way, nor will the com-
pany offer you any benefits or rewards for your act-
ing otherwise . You alone must make the decision,
but before you do-BE FAIR TO YOURSELVES
AND TO YOUR FAMILIES. GET ALL OF THE
FACTS.
As found earlier, on October 13, the Union filed an un-
fair labor practice charge, alleging, inter alia, that the
Respondents had interfered with union organizational ac-
tivity and employee rights by promising the employees
All events hereinafter discussed occurred in 1966, unless otherwise
specifically noted
GOTHAM INDUSTRIES, INC 673
various benefits, including a 10-cent-an-hour increase to
be effective on December 1, 1966. Shortly thereafter the
Regional Director postponed the representation election.
Robert Gottsegen testified that after he received word
that the election had been postponed he showed a number
of the employees a copy of the unfair labor practice
charge and pointed out to them that the grant of a wage in-
crease was one of the allegations therein.
There was also testimony at the hearing that Plant Su-
perintendent Stauble told employee Toni Arsenault that
the Union's action in filing unfair labor practice charges
would deprive the plant personnel of the wage increase
that had been promised earlier. Thus, Arsenault testified
that during the week of October 17, Stauble, in answer to
her request for an individual pay increase of 20 cents per
hour, stated that at that moment he was unable to give her
a penny raise, that "the Union has stepped in and taken
away the 10-cent raise. `6 Arsenault testified, credibly,
that subsequent to this occasion she related the substance
of her conversation with the plant superintendent to a
number of her fellow employees.
There was other testimony that after the posting of the
election notices some of the employees expressed ap-
prehension as to whether this would affect the wage in-
crease that had been promised. Endonia Ingemi, a floor-
lady in the assembly department, testified that eight or
nine of the girls on her shift questioned her as to whether,
as a result of the notice, they were still going to get the in-
crease. Caroline Cosby, an employee in the molding de-
partment, testified that during this same peroid she
inquired of Al Lanza, her foreman, as to whether the
wage increase was going into effect because she had
heard her coworkers discussing the prospect of losing the
raise they had been promised. Geneva Gallent, another
employee in the molding department, testified that after
the Union filed its charge, there was discussion among
her fellow workers to the effect that as a result of this ac-
tion they might lose their wage increase.
Robert Gottsegen testified that during this period he
received numerous inquiries from the employees as to
whether the Union's charge would prevent the effec-
tuation of the wage increase which had been promised
for December. According to Gottsegen, because of these
inquiries, in a notice dated October 27, 1966, and dis-
tributed to all the employees, he wrote as follows:
On September 20, 1966, a letter was distributed to
all employees in the Molding Room stating that there
would be a ten cent (10 cents) raise for molding
machine operators, box boys and hopper boys in
December for the payroll period of December 4,
1966.
As you know, the Retail Wholesale Department
Store Union has filed with the National Labor Rela-
tions Board unfair labor practice charges alleging
that this pay increase was an unfair labor practice.
The Company thinks this charge is absurd and is
doing everything in its power to prevent the union
from denying our employees this very much needed
and very much deserved increase. We are unable to
understand why the union, who says they are in-
terested in our employees' welfare, is trying to inter-
fere with our giving you higher pay. Our lawyers are
now presenting our views regarding this pay increase
to the National Labor Relations Board and we hope
to have further information on this in about ten (10)
days.
You need this pay increase, you deserve this pay in-
crease, and we intend to give it to you
Very truly yours,
/s/ Robert Gottsegen
The General Counsel and the Union allege that the an-
nouncment of the raise here in question was planned by
the Respondents as a strategem to interfere with the free
exercise by the employees of their choice in the rerun
election and that the comments of Superintendent Stauble
and the news letter of Robert Gottsegen constituted
further unlawful interference and restraint of the em-
ployees in the excerise of their rights under the Act All
of this is denied by the Respondents, according to whom
the raise was dictated solely by pressing economic con-
siderations.
It is well settled that, under normal circumstances, the
announcement of a wage raise on the eve of a represen-
tation election constitutes unlawful interference and
coercion. Thus, the Supreme Court has stated:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged. [N.L.R.B. v.
Exchange Parts Company, 375 U S. 405, 409.]
Likewise, the Board has held that "a wage increase plan
that is either conceived or accerlerated for the purpose of
counteracting a union organizing campaign violates Sec-
tion 8 (a)(1) of the Act." The Great Atlantic & Pacific
Tea Co., Inc., 162 NLRB 1182, 1185 Paramount Tex-
tile Machinery Co , 97 NLRB 691, 692-693. Cf., Ambox,
Inc., 146 NLRB 1520, 1521, enforcement denied in part
357 F.2d 138, 141 (C.A. 5).7
According to Robert Gottsegen, after the court of ap-
peals enforced the Board's Decision and Order in Case
1-CA-4429, in May 1966, the Respondents' counsel ad-
vised him that another election might never be held. At
the hearing, both Robert and Lawrence Gottsegen
testified that their first intimation that another election
would be scheduled came on September 23, 1966, when
a representative of the Regional Director so informed
Robert Gottsegen. Thus, it is the Respondents' earnest
assertion that all plans for the employee wage raise were
made on the honest, albeit mistaken, assumption that
another election might never be ordered, or, at any rate,
that its likelihood was extremely remote
Respondent Gotham, of course, could not deny having
had knowledge that the order for a rerun election had
6 Arsenault's testimony was credible It was not denied by Stauble Ac-
cording to the latter, "She [Arsenault] demanded a 20-cent-an-hour raise
and I told her that since the Union had filed unfair labor practices against
the Company that there would be no raises coming until that matter was
settled "
7 The Board has noted its respectful disagreement with the decision of
the court of appeals in N L.R B v Ambox, Inc , 357 F 2d 138 (C A 5),
and has reaffirmed its original holding in that case James A Pea son, et
al, dlbla Crystal Lake Broom Works, 159 N LRB 429, fn I
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been outstanding for a long while. On December 27,
1963, in the Supplemental Decision wherein the Regional
Director set aside the original election, the latter an-
nounced that another election would be held "at a time
and place to be determined." Whereas it is indeed true
that the situation here is somewhat unique in that there
occurred a lapse of over 33 months between the date
when the original election was set aside and a new elec-
tion scheduled, it must be noted that this delay resulted
from Gotham's own misconduct and the ensuing unfair
labor practice proceeding which was commenced in
January 1964, and not concluded until the summer of
1966. In the light of this extended litigation wherein
Gotham contested every allegation of unlawful action
during the earlier union campaign and which eventuated
in adverse findings against Gotham, by first the Trial Ex-
aminer, then the Board and, finally, by the court of ap-
peals in May 1966, Robert Gottsegen's testimony that,
during the summer of 1966, he did not anticipate a rerun
election at the plant, strains credulity.
On the other hand, the Board has held that an employer
is not to be penalized where his grant of employee
benefits is the result of economic factors that are unre-
lated to any pending representation proceeding.
Champion Pneumatic Machinery Co., 152 NLRB 300,
306; International Shoe Company, 123 NLRB 682,
684-685; Glosser Bros., Inc., 120 NLRB 965, 966. In
these last cited cases, the Board has held that if the em-
ployer can establish that the grant of benefits and their
timing were prompted by factors other than the pendency
of a representation election, no violation of the Act was
committed.
In this case, the Respondents' principal witnesses,"
testified that wage increases and other employee benefits
were customarily announced and made effective near the
end of the calendar year. According to Robert Gottsegen,
this had been the practice at Gotham for a considerable
period. Thus, in November 1963 Gotham announced a
health insurance plan for all who had been in its employ
for over a year. In November 1964, it announced a wage
increase of approximately 5 cents per hour, effective at
the end of December. In November 1965, Gotham an-
nounced that effective on January 1, 1966, it would
secure a life insurance policy of $ 1,000 for each employee
who had 1 year, or more, of service with Gotham by the
latter date. Gottsegen further testified that in each in-
stance the announcement of the added benefit, or wage
increase, was made about a month before the employees
received it.
In contrast with past practice, the raise here in question
was announced to the employees almost 3 months before
it was to be put into effect. According to Robert Gott-
segen , this was done because in August the employees in
the molding room had met and demanded a raise , because
the Respondents were experiencing serious turnover
problems, and because an increase in the standard set by
the minimum wage law was about to be voted by the Con-
gress.
As found earlier herein, the employees on the day shift
in the molding room had, in fact, held a meeting to discuss
a pay raise sometime early in August 1966, and after
several of the older employees had circulated a call for
such a conference.9 The meeting was held at the end of
the shift and was attended by Superintendent Stauble and
Foreman Al Lanza, as well as about 25 of the employees.
During the course of the meeting, the employees
discussed the need for a wage increase and Stauble as-
sured them that he would relay their demand to the plant
management. Thereafter, and during the latter part of Au-
gust, Robert Gottsegen called several of these employees
to his office where he assured them that the Company
was considering a rase for them. Gottsegen testified that
in these conferences with individual employees he told
them that the raise would be 10 cents an hour and that it
would be effective on December 1. Although Gottsegen
was a far from frank, or credible, witness, his testimony
in this respect was corroborated by Antoinette LeBlanc
and Audrey LeClair, two of the employees with whom he
held these interviews. Consequently, it is the conclusion
of the Trial Examiner that some time after the meeting of
the day-shift employees, Robert Gottsegen did tell
several of them that their Employer planned a wage in-
crease that would be effective in December.
Robert Gottsegen also testified that during the summer
and fall of 1966 the Respondents experienced an un-
precedented turnover of personnel so that they were com-
pelled to expend a substantial sum on advertising and in
other channels to recruit the necessary replacements. In
support of this testimony, evidence was offered which
established that the Respondents had increased, very
substantially, their expenditures for "help wanted" adver-
tising during the year 1966.10 However, other evidence
on this issue did not sustain Gottsegen's contention that
the Respondents' problems in personnel turnover were
any more acute during 1966 than they had been in prior
years. In support of Gottsegen's testimony in this regard,
Joan Amos, office manager for the Respondents, was
called to the stand. Whereas her statistics on turnover in-
dicated a high rate during 1966, on cross-examination she
testified as to other data which established that turnover
at the Fitchburg plant had been a continuing problem for
several years and that, in fact, the rate had been even
higher at Crawford in 1965 and at Gotham in 1964, than
it was in 1966.11
The testimony of Robert Gottsegen that he was moved
to announce a wage increase, in part, because early in Au-
gust the molding room employees had met and demanded
a raise, was not persuasive. According to Superintendent
Stauble and several others who were present, the meeting
in question was attended by about 25 employees. Mrs.
Amos testified that for the week ending on August 14,
1966, the molding room in the Crawford plant had 159
employees. During that same period she testified that
Gotham had 48 employees in its assembly room and 35
others working at various assignments, making a total of
83. In the light of the fact that at the time the Respond-
e I e , Robert and Lawrence Gottsegen
Although at the time the molding room was operating on a 3-shift ba-
sis, only the employees on the day shift attended this meeting
10 Thus, there was evidence that in 1964 the Respondents spent ap-
proximately $ 9 on such advertising in the Fitchburg Sentinel , a local
newspaper of general circulation . In 1965, Gotham and Crawford ex-
pended approximately $96 for this purpose During 1966, however, the
Respondents spent approximately $1,000 on such advertising
11 Mrs Amos testified that the number of employees who quit at each
of the Respondents for the period from 1964 to 1966 was as follows
Crawford Gotham
1964 315 172
1965 412 118
1966 388 163
GOTHAM INDUSTRIES, INC. 675
ents' joint payroll was substantially in excess of 200 em-
ployees, it seems most unlikely that the meeting in
question, involving as it did only part of one shift in one
department, would cause the Respondents to accelerate
the announcement of an across-the-board wage increase
for over 200 employees that would not become effective
until the following December.
Robert Gottsegen also testified that among the factors
considered by him and Lawrence Gottsegen in their
discussions of the need for a wage increase was the
prospect of amendments to the Fair Labor Standards
Act, a subject that was then being debated in Congress.
According to Gottsegen, as the result of these discus-
sions, the management concluded that it would be better
if the proposed wage increase was announced to the em-
ployees before any final Congressional action which
would make it compulsory for them to raise the em-
ployees' wage level to meet any newly established
minimum. This is, indeed, plausible and such a con-
sideration may have had some effect on the Respond-
ents' planning. In August 1966, the amendments in
question had passed the House and the Senate and were
awaiting action by a Conference Committee of the Con-
gress. In late September, the Conference version of the
proposed legislation was passed by the Congress,
establishing the minimum wage at $1.40 per hour. Public
Law 89-601, sec. 301(a)(1); 29 U.S.C.A. § 206(a)(1)
(1966 supp.). On the other hand, although passed in Sep-
tember 1966, this provision did not become effective until
February 1, 1967. Public Law 89-601, sec. 602;
U.S.C.A. § 203 (1966 supp.). Moreover, at the hearing
the Respondents offered no evidence as to the effect, if
any, which the new minimum, established by this legisla-
tion, would have on the wage level in the molding and as-
sembly departments in their plant.12 Consequently, in
view of this fact and the further fact that many months
would elapse before the new minimum wage level pro-
vided in the legislation became effective, it is the conclu-
sion of the Trial Examiner that, whereas the impending
change in the Fair Labor Standards Act might have had
some bearing on the Respondents' planning in August
and September it was not, by any means, a dominant fac-
tor.
In his letter of August 30, 1966, the Regional Director
apprised the Respondents of the fact that they had
satisfactorily complied with the posting requirements of
the decree as well as its other provisions. On the basis of
the record here, it is the conclusion of the Trial Examiner
that, contrary to the testimony of Robert Gottsegen, the
Respondents knew that subsequent to the expiration of
the 60-day posting period required by the Board's Order,
as enforced by the decree of the court of appeals, a rerun
election would be scheduled. It is not for the Trial Ex-
aminer to sit in judgment on the Respondents' business
acumen in deciding when the various factors vital to the
operation of their plant compelled them to decide that a
wage raise was essential and to make an announcement
of that decision. Here, however, and on the basis of the
facts found above, it is the conclusion of the Trial Ex-
aminer that in August and September 1966 the Respond-
ents well knew that another representation election was
in the offing. It is the further conclusion of the Trial Ex-
aminer that no adequate business reason was advanced
for the departure from the Respondents' past practice of
announcing general wage and fringe benefits at the end of
the calendar year and that it was for reasons closely re-
lated to the impending employee election that in 1966 the
announcement of a yearend pay increase was made in
August and September rather than in November or
December as had been done in times past.
The foregoing conclusion is likewise supported by the
subsequent conduct of the Respondents after they
received notice as to precisely when the rerun election
would be held and the Union filed its unfair labor practice
charge. Thus, although the Union alleged that the
Respondents had announced the wage increase for a dis-
criminatory reason, it did not demand that the forthcom-
ing raise be rescinded. This, however, was the light in
which Robert Gottsegen and Plant Superintendent Stau-
ble chose to place the Union's action in invoking the
processes of the Board. In this vein, Stauble told em-
ployee Arsenault that "the Union has stepped in and
taken away the ten cent raise" and on October 27, in his
notice to the employees, Robert Gottsegen, in referring
to the Union's unfair labor practice charge, characterized
it as an effort by the Union to deny the employees "a very
much needed and very much deserved increase." Robert
Gottsegen testified that after he received a copy of the
charge, he showed it to employees throughout the plant
and that many of them questioned him as to the effect
which its filing would have on their pay increase. At the
hearing, it was his contention that the letter of October 27
was necessary to quiet the fears of the employees that the
pay raise promised them would be forthcoming. On the
other hand, the language which Gottsegen used in his
letter belied his bland assertion that the purpose of this
notice was merely to allay the apprehensions of the em-
ployees that the unfair labor practice charge might
prevent their getting the wage increase. The words he
used were quite obviously chosen for the purpose of
sounding a general alarm. Thus, with reference to the
Union's unfair labor practice charge, Gottsegen stated:
. The company thinks this charge is absurd and is
doing everything in its power to prevent the union
from denying our employees this very much needed
and very much deserved increase. We are unable to
understand why the union, who says they are in-
terested in our emplcyees' we fare, is trying to inter-
fere with our giving you higher pay .... You need
this pay increase, you deserve this pay increase, and
we intend to give it to you. [Emphasis supplied.]
From the tone and implication of this letter it might be
fairly said of the Respondents here, as the Board stated of
a somewhat similar situation in another case:
. through this conduct, the Respondent sought to
discredit the Union and discourage membership
therein by announcing a desire to offer ... benefits
to its employees and then shifting to the Union the
onus for not instituting these benefits. [McCormick
Longmeadow Stone Co., Inc., 158 NLRB 1237,
1238.]
The action of the Union in filing its charge was taken in
conformity with the procedures established by the Act to
guarantee the rights of employees defined in that statute.
Neither the Union's charge, nor the Act, required that the
Respondents rescind the forthcoming pay raise. The Act
12 There is little in the record as to the wage level of the employees in $1 40 an hour Thus, employee Toni Arsenault, who was hired in August
the unit here involved Such evidence as can be found indicates that the 1966, testified that her starting rate was $1 45 per hour
employees in August and September were already getting in excess of
310-541 0 - 70 - 44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did require, however, that, once filed, the charge had to
be investigated and that, during the course of such in-
vestigation, the election might be held in abeyance. In the
meantime, through comments such as those of Superin-
tendent Stauble, and more significantly by the language
in Gottsegen's letter of October 27, the Respondents
characterized the Union's lawful course of action as hav-
ing been taken to deny the employees a much deserved
raise. This was a misrepresentation which seriously
prejudiced the Union and interfered with the rights of the
employees to have a free election. Moreover, in view of
all the circumstances here present and the manner in
which the Respondents so quickly seized upon the filing
of the charge as an opportunity to stigmatize the Union as
being hostile to any immediate wage benefit for the em-
ployees, it is the conclusion of the Trial Examiner that the
Respondents' entire course of action with respect to the
wage raise, from August through December, was taken to
dissuade the employees from voting for the Union in the
forthcoming representation election. In the light of the
foregoing findings, it is the further conclusion of the Trial
Examiner that by this course of conduct the Respondents
interfered with and restrained the employees in the exer-
cise of the rights guaranteed by Section 7 of the Act, and
thereby violated Section 8(a)(1). N.L.R.B. v. Exchange
Parts Company, 375 U.S. 405, 409, Northwest Engineer-
ing Company, 148 NLRB 1136, 1145; Admiral Semmes
Hotel and Motor Hotel, 154 NLRB 338, 342, 349-350;
Crystal Lake Broom Works, 159 NLRB 429, 436-437;
Glosser Bros., Inc., 120 NLRB 965, 966.
ents who were first promised a wage raise and then
threatened with its loss when the Union filed its unfair
labor practice charge.
Here it was the Union , and not the employees, who
filed the charge. Neither the language of the statute, nor
any of the cases cited by the General Counsel in his brief
support the contention that the action of the Respond-
ents, already found to have violated Section 8(a)(1), also
constituted a violation of Section 8(a)(4). For this reason,
it is the conclusion of the Trial Examiner that this allega-
tion in paragraph 1 1 of the complaint must be dismissed.
Aluminum Products Company , et at. 7 NLRB 1219,
1240, 1241, modified on other grounds , 120 F.2d 567
(C A. 7).
CONCLUSIONS OF LAW
1 The Respondents are engaged in commerce and the
Union is a labor organization, all within the meaning of
the Act.
2. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights under the Act, the
Respondents have engaged in and are engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
3. The Respondents have not engaged in violations of
Section 8(a)(4) of the Act as alleged in the complaint.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
C. The Alleged Violation of Section 8(a)(4); Contentions
of the Parties; Conclusions with Respect Thereto
The General Counsel contends that the Respondents'
course of conduct here was designed to convince the em-
ployees that the Union's unfair labor practice charge en-
dangered their prospect of a wage increase and that, for
this reason, it tended to discourage further resort to the
processes of the Board. The General Counsel alleges
that, in this latter respect, the Respondent violated not
only Section 8(a)(1), but 8(a)(4) as well.
In support of this proposition, in his brief the General
counsel has cited John Hancock Mutual Life Insuarance
Company v. N.L.R.B., 191 F.2d 483, 485 (C.A.D C.)
enfg. 92 NLRB 122; Oil City Brass Works v. N.L.R.B.,
357 F.2d 466, 471-472 (C.A. 5), enfg. 147 NLRB 627;
and Local 138, International Union of Operating En-
gineers, AFL-CIO (Charles S. Skura), 148 NLRB 679,
681-682. None of these cases, however, is pertinent to
the issue here, for all of them involve the conventional
situation where an individual has been penalized by his
employer or his union, for having filed charges or having
given testimony under the Act.
Section 8(a)(4) reads as follows.
It shall be an unfair labor practice for an em-
ployer-
(4) to discharge or otherwise discriminate
against an employee because he has filed
charges or given testimony under this Act [.]
The General Counsel would construe this section so that
the word "employee" encompassed all of the employees
in the molding and assembly departments of the Respond-
The unfair labor practices found above, occurring in
connection with the operations of the Respondents
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 bur-
dening and obstructing commerce and the free flow of
commerce
THE REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, the Trial Examiner will
recommend that they be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. Further, because of
the background of unfair labor practices on the part of
Respondent Gotham as found in Gotham Industries,
Inc., 150 NLRB 63, it will be recommended that the
Respondents herein be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
The General Counsel has urged, in his brief, that here
more is required to effectuate the policies of the Act than
the conventional posting of a notice in the plant, in view
of the manner in which the Respondents circularized the
employees in the course of their campaign to disparage
the Union and in view of the background of unfair labor
practices committed earlier by Respondent Gotham The
Trial Examiner concludes that there is merit in this posi-
tion and accordingly, will recommend that the Respond-
ents be required to: (1) convene, during working time,
meetings of employees in the various departments of their
plants and read to them a copy of the appended Notice to
All Employees; and (2) mail copies of this notice, after it
has been signed by a representative of the Respondents,
to each of the employees. J. P. Stevens and Co., 163
NLRB 217, The Remedy sections. Further, nothing
GOTHAM INDUSTRIES, INC. 677
herein shall be construed as requiring the Respondents to
vary or abandon any economic benefit or any term or
condition of employment which the Respondents have
heretofore established
Upon the basis of the above findings of fact, and con-
clusions of law, and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended , the Trial Examiner recommends is-
suance of the following:
RECOMMENDED ORDER
1. Gotham Industries , Inc., its officers , agents, succes-
sors, and assigns , shall:
(a) Cease and desist from:
(1) Announcing wage increases to employees during
the pendency of a representation election should such an-
nouncement interfere with the rights of employees as set
forth in Section 7 of the National Labor Relations Act, as
amended, or make it appear as though the employees may
lose a wage increase because they, or the Union , seek to
protect their rights under the Act by filing charges or
otherwise-complaining or objecting to such conduct.
(2) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all of 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.
(b) Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(I) Mail a copy of the attached notice, marked "Ap-
pendix A,"13 to each employee, and post copies at its
plant in Fitchburg , Massachusetts . Copies of said notice,
to be furnished by the Regional Director for Region 1,
shall be signed by a representative of the Respondent.
Thereafter, a copy shall be mailed by the Respondent to
each of its employees working in the Fitchburg plant, and
additional copies shall be posted by it and be maintained
by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken
by the Respondent to insure that said notices are not al-
tered , defaced, or covered by any other material.
(2) Convene during working time, by departments and
by shifts, all its employees , and a responsible official of
the Respondent , at departmental supervisor level or
above, shall read to the department employees the con-
tents of the attached Appendix A.
(3) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith. 14
II. Crawford Plastics Corp ., its officers , agents, suc-
cessors, and assigns, shall:
(a) Cease and desist from:
(1) Announcing wage increases to employees during
the pendency of a representation election should such an-
nouncement interfere with the rights of employees as set
forth in Section 7 of the National Labor Relations Act, as
amended, or make it appear as though the employees may
lose a wage increase because they, or the Union , seek to
protect their rights under the Act by filing charges or
otherwise complaining or objecting to such conduct.
(2) In any other man*ier interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization, to form labor organizations, to loin or assist
Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all of 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.
(b) Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(1) Mail a copy of the attached notice, marked "Ap-
pendix B,"15 to each employee, and post copies at its
plant in Fitchburg, Massachusetts. Copies of said notice,
to be furnished by the Regional Director for Region 1,
shall be signed by a representative of the Respondent.
Thereafter, a copy shall be mailed by the Respondent to
each of its employees working in the Fitchburg plant, and
additional copies shall be posted by it and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(2) Convene during working time, by departments and
by shifts, all its employees, and a responsible official of
the Respondent, at departmental supervisor level or
above, shall read to the department employees the con-
tents of the attached Appendix B.
(3) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.16
13 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 "
14 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
pondent has taken to comply herewith "
11 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 "
16 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that: '
After a trial in which both sides had an opportunity to
present their evidence and arguments, it was found that
we violated the law and that our announcement to our
employees of a general wage increase was given in order
to support our side of the argument to you that our em-
ployees didn't need a union to get benefits for them.
We want you now to know that we will not take the
raise away from you and that the National Labor Rela-
tions Board has never required us to take the raise away
from you. Any time you personally, or the union on your
behalf, seek to protect our employees' rights, you will be
fully protected and you will not be penalized for such ac-
tion by your company.
WE WILL NOT announce wage increases to our em-
ployees during the pendency of a representation peti-
tion should such announcement interfere with the
rights of employees as set forth in Section 7 of the
National Labor Relations Act, as amended, or make
it appear as though our employees may lose a wage
increase because they, or a union on their behalf,
seek to protect their rights under the Act by filing
charges or otherwise complaining or objecting to
such conduct.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor or-
ganizations , to join or assist Retail , Wholesale and
Department Store Union, AFL-CIO, or any other
labor organization, to bargain collectively through
representatives of their own choosing, or to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the
extent that such right may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor- Manage-
ment Reporting and Disclosure Act of 1959. All our
employees are free to become , remain , or refrain
from becoming or remaining members of this Union,
or any other labor organization.
GOTHAM INDUSTRIES, INC.
(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, John F. Ken-
nedy Federal Building, Cambridge and New Sudbury
Streets, Boston, Massachusetts, Telephone 223-3300.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
After a trial in which both sides had an opportunity to
present their evidence and arguments , it was found that
we violated the law and that our announcement to our
employees of a general wage increase was given in order
to support our side of the argument to you that our em-
ployees didn't need a union to get benefits for them.
We want you now to know that we will not take the
raise away from you and that the National Labor Rela-
tions Board has never required us to take the raise away
from you. Any time you personally , or the Union on your
behalf, seek to protect our employees ' rights, you will be
fully protected and you will not be penalized for such ac-
tion by your company.
WE WILL NOT announce wage increase to our em-
ployees during the pendency of a representation elec-
tion should such announcement interfere with the
rights of employees as set forth in Section 7 of the
National Labor Relations Act, as amended , or make
it appear as though our employees may lose a wage
increase because they, or a union on their behalf,
seek to protect their rights under the Act by filing
charges or otherwise complaining or objecting to
such conduct.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the excerise of
their right to self-organization , to form labor or-
ganizations , to join or assist Retail , Wholesale and
Department Store Union , AFL-CIO, or any other
labor organization , to bargain collectively through
representatives of their own choosing , or to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the
extent that such right may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor- Manage-
ment Reporting and Disclosure Act of 1959. All our
employees are free to become , remain , or refrain
from becoming or remaining members of this union,
or any other labor organization.
CRAWFORD PLASTICS CORP.
(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, John F. Ken-
nedy Federal Building, Cambridge and New Sudbury
Streets, Boston, Massachusetts, Telephone 223-3300.