Grede Foundries, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1312 (N.L.R.B. 1976)

1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Felsenthal Plastics , Inc n/k/a Grede Plastics , a Divi-
sion of Grede Foundries , Inc and District 8, Inter-
national Assoc iation of Machinists and Aerospace
Workers , AFL-CIO Case 13-CA-14019
June 18, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On February 25, 1976, Administrative Law Judge
David S Davidson issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions 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 au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
and (5) of the Act In its answer Respondent denies the
commission of any unfair labor practices
A hearing in this case was held before me in Chicago,
Illinois, on September 29 and 30 and October 1, 1975 At
the conclusion of the third day of hearing Respondent re-
quested a continuance in order to gain attendance at the
hearing of additional witnesses The continuance was
granted with the understanding that in the interim the par-
ties would submit memoranda on the admissibility of the
further testimony which Respondent intended to submit
and that the hearing would be closed if it were concluded
that such testimony was not admissible On October 20,
1975, after receipt of memoranda from the General Coun-
sel and Respondent, I issued an Order closing the hearing
and granted the General Counsel's motion to strike certain
testimony previously heard Thereafter the General Coun-
sel and Respondent filed briefs With its brief Respondent
also filed an offer of proof which is opposed by the Gener-
al Counsel
Upon the entire record in this case including my obser-
vation of the witnesses and their demeanor I make the fol-
lowing
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Felsenthal Plastics, Inc,
n/k/a Grede Plastics, a Division of Grede Found-
ries, Inc , Chicago, Illinois, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board s established policy not to over
rule an Administrative Law Judge s resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950) enfd 188 F 2d 362 (CA 3 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
DAVID S DAVIDSON, Administrative Law Judge The
charge in this case was filed on February 20, 1975, by the
Union, and the complaint issued on August 8, 1975 The
complaint alleges that Respondent made a promise of ben-
efits during the pendency of a decertification election and
granted certain benefits while objections to that election
were pending thereby undermining and destroying the ma-
jority status of the Union in violation of Section 8(a)(1)
Respondent is a Division of Grede Foundries, Inc, a
Wisconsin corporation Respondent maintains an office
and place of business at 3500 North Kedzie Avenue, Chi-
cago, Illinois, the only facility involved in this proceeding
From about July, 1971, until November, 1974, the Kedzie
Avenue plant was operated by Felsenthal Plastics, Inc, a
wholly owned subsidiary of Grede Foundries, Inc Effec
tive November 2, 1974, Felsenthal and Salg Plastics, Inc,
another wholly owned subsidiary of Grede Foundries,
were merged into Grede Foundries, and the two subsid-
iaries jointly became known as Grede Plastics, a Division
of Grede Foundries, Inc After the merger the former Fel
senthal plant became known as the Kedzie plant of Grede
Plastics At all times material Respondent has been en-
gaged in the manufacture and sale of plastic products at
the Kedzie plant and has purchased and received at that
plant goods and materials valued in excess of $100,000 di-
rectly from points outside the State of Illinois I find that
Respondent is an employer within the meaning of the Act
and that it will effectuate the policies of the Act to assert
jurisdiction herein
II THE LABOR ORGANIZATION INVOLVED
The Union, District 8, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, is a labor or-
ganization within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
In 1948, before Felsenthal Plastics, Inc, was purchased
by Grede Foundries, the Union was certified by the Board
224 NLRB No 182
GREDE PLASTICS A DIVISION OF GREDE FOUNDRIES 1313
as the exclusive bargaining representative of Felsenthal's
production and maintenance employees Thereafter, the
Union and Felsenthal entered into a series of collective-
bargaining agreements The most recent agreement was ne-
gotiated after Grede acquired Felsenthal and ran from
June 22, 1972, until October 31, 1974
On August 20, 1974, a timely decertification petition was
filed by Leroy McCoy, an employee of Respondent On
August 27, 1974, the Union gave notice of its desire to
reopen the expiring agreement, and on September 12, 1974,
Respondent replied that in view of the question concerning
representation raised by the decertification petition it was
required to decline any invitation to engage in bargaining
until that question was fully resolved
On November 18, 1974,1 a Stipulation for Certification
Upon Consent Election was approved by the Regional Di-
rector pursuant to which an election was scheduled to be
held on December 5, 1974
On December 2, 1974, 3 days before the election Re-
spondent sent the following letter to all employees in the
bargaining unit 2
TO ALL GREDE PLASTICS EMPLOYEES
On Thursday, December 5th, you and your fellow
workers will decide a very important question-
whether or not you wish to be represented by a union
Consider the facts before you vote
It is a fact that the employees at our six non-union
foundries have received larger and more frequent
wage increases than you have under your recent union
contract
It is a fact that these non-union employees enjoy a
better fringe benefit package than you had under your
contract
It is a fact that these non-union employees have
greater job security through satisfied customers than
you supposedly had from the union contract
These facts are the result of a team effort on the
part of all of these employees in satisfying our custom-
ers
We believe you should be a part of this successful
team-and free from union dues
Vote NO on December 5th
Sincerely,
Burleigh E Jacobs,
Chairman
On December 2 and 3 Respondent's Board Chairman
Jacobs gave almost identical speeches to two separate
groups of bargaining unit employees at the Kedzie Avenue
plant The speeches contained a frank appeal for the em-
ployees to vote against continued union representation in
the decertification election Jacobs attempted to explain to
employees what Grede Foundries had done for the plant
and them since it had taken over Felsenthal and to de-
scribe Respondent's "Guiding Principles" which had previ-
ously been mailed to the employees In his speeches Jacobs
After the petition was filed the Union filed a charge against Respondent
which was dismissed before the consent election agreement was executed
2 A Spanish translation was sent to the Spanish speaking employees in the
unit
made the point that solutions to employees' problems
could best be reached directly between the employees and
management and that the Union's role did not contribute
to those solutions In the course of his remarks Jacobs
made the following statements upon which the General
Counsel particularly relies in its argument that the
speeches are part of the background against which Jacobs'
December 2 letter must be interpreted
I'm sure you're all aware that solutions to problems
come only out of open discussions between you and
your supervisors and managers, and do not come from
the disruption and divisive interference of unions
* *
You may wonder, well what's wrong with unions Well
many of you are well aware of what's wrong with
them You know that there is no freedom for you
when you are in a union When some union boss says,
"Strike ' you leave your work and your paycheck be-
hind, whether you want to or not
The strike that occurred at this plant, just prior to our
purchase, is one example of the kind of human rela-
tions that unions lead to, the kind of anger and vio-
lence that grows out of distrust and dissension
* * * *
Now, I'm sure that all of you want an uninterrupted
and a growing income just as our customers want an
uninterrupted source of supplies This is all possible if
we work regularly, safely and take the opportunity to
remove the present outside interference Much of our
business is a result of people having confidence that
Grede Plastics will not have work stoppages and will
be a continuous source for plastic parts You have an
opportunity for increased income Don't let an outsid
er interfere with your future, with the future of your
family, or with your job
* *
No matter what the union may say to you, believe me,
we do not have unions at any of our six foundries and
have been a successful company for more than 50
years Over 2000 employees of Grede are enjoying a
union-free environment with excellent benefits and
high wages, and paying no union dues for this privi-
lege
The election on December 5 resulted in a vote of 96
against the Union and 84 for it On December 9 the Union
filed timely objections to the election alleging that in the
letter and speeches Respondent promised its employees in-
creased wages and improved benefits if they voted against
the Union in the election
On December 16 while the objections were under inves-
tigation Respondent sent a letter to its employees an-
nouncing the grant of increased wages and benefits to em-
ployees which became effective on that date These
benefits were a wage increase of approximately 12 percent,
improved medical insurance coverage, increased life insur-
ance, elimination of employee contributions for depen-
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dents' insurance coverage, accident and sickness benefits
extended to 26 weeks with an increase in weekly benefit
payments, an additional paid holiday, and increased vaca-
tion benefits
The letter to the employees was prefaced with the state-
ment, "The vote of confidence in your Grede Management
shown on Thursday, December 5, 1974, is sincerely appre-
ciated," and it closed with, "Once again, we are extremely
pleased that you have indicated your confidence in the
Grede Management With continued teamwork and coop-
eration in the future, we can all help to make Kedzie an
even better place to work "
On February 13, 1975, the Regional Director issued a
Report on Objections recommending that the election be
set aside because the December 2 letter, "however factual,
was a clear invitation to reject union organization with a
promise of benefit, and in the light of the increases given to
employees, after the election, constituted an interference in
the free choice of employees " Respondent filed exceptions
to the Regional Director's Report, and on July 28, 1975,
the Board, with Chairman Murphy and Member Kennedy
dissenting, upheld the Regional Director and ordered a
new election 3
B Concluding Findings
1 The alleged violations of Section 8(a)(1)
a The December 2 letter
The General Counsel contends that Jacobs' December 2
letter, particularly when viewed in the light of his Decem-
ber 2 and 3 speeches, promised employees better benefits if
the employees voted to decertify the Union than if they
remained represented by the Union Respondent contends
that the letter contained no promise of benefit and repre-
sented nothing more than permissible factual statements,
which have not been challenged as untrue and which must
be viewed in light of union campaign literature circulated
to employees which Respondent was entitled to rebut
While conduct which may warrant setting aside an elec-
tion does not always constitute interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the Act,
the conclusions reached by the Board majority in this case
in sustaining the objections to the election would not only
support setting the election aside but would also support a
finding that Section 8(a)(1) had been violated
Thus, the majority found
We agree with the Regional Director's conclusion
that the letter, however factual, was a clear invitation
to the employees to reject the Union and receive bene-
fits for doing so
Thus the letter stressed the fact that all the
Employer's nonunion employees received better wages
and benefits and had better job security than the
Union had been able to obtain from the Employer's
predecessor The letter describes the nonunion plants
as constituting a team and invites these union employ-
3 219 NLRB 592
ees to join that team by rejecting the Union Since the
employees knew that if the decertification effort were
unsuccessful the Union would be bargaining with the
Employer over wages, fringe benefits, and job securi-
ty, the employees also knew that it was within the
Employer's power to agree or not to agree to employ-
ment terms desired by them Thus it is clear that the
contents of the letter told employees that if theyjoined
the Employer's `team" of nonunion employees they as
"team" members would enjoy "team" benefits At the
same time the letter had the effect of warning employ-
ees that if they declined to join the "team" by voting
against decertification, Respondent would take a
tough stand during negotiations and would not agree
to terms and conditions of employment comparable to
those enjoyed by the nonunion employees According-
ly, we agree with the Regional Director's finding that
the election should be set aside and a second election
directed 2
'Our dissenting colleague makes much of the fact that the
Employers actual conferral of benefits did not take place until after
the election While this conduct took place outside the critical period
and might very well have constituted a basis for an 8(a )( 1) violation in
an unfair labor practice context the fact remains that the Employers
unlawful promise of benefit made prior to the election and during the
critical period in itself constituted sufficient interference to warrant
setting the election aside Moreover the later fulfillment at least in
part of the implications conveyed to the employees during the pen
dency of the petition can hardly be regarded as unrelated to those
implications
Jacobs' speeches on December 2 and 3 do not appear to
have been considered by the Board majority in the repre-
sentation case Both the letter and the speeches clearly im-
plied that if the employees voted the Union out they would
receive improved benefits-the letter, by inviting employ-
ees to become a part of the team that had produced better
benefits, and the speeches by echoing that theme and
stressing the opportunity for increased income by voting
the Union out The negative inference that the employees
would not be as well treated if they retained the Union is if
anything more directly drawn from the speeches than the
letter Thus, Jacobs told the employees that " solutions to
problems come only out of open discussions between you
and your supervisors and managers, and do not come from
the disruption and divisive interference of unions," and
that "an uninterrupted and a growing income" was possi-
ble if they took "the opportunity to remove the present
outside interference " I agree with the counsel for the Gen-
eral Counsel that the inferences already found by the
Board in the December 2 letter are strengthened by consid-
eration of the letter in the context of the concurrent
speeches made by Jacobs to the employees
The union campaign leaflets, on which Respondent re-
lies also , do not appear to have been considered by the
Board in the representation case There is no question that
Respondent was entitled to campaign for a "no" vote in
the election and to present facts in support of its position
Union leaflets dated November 19 and 26 were distributed
before Respondent's December 2 letter was given to the
employees Their thrust was that without a union , benefits
would not be guaranteed by a contract, the Company
GREDE PLASTICS, A DIVISION OF GREDE FOUNDRIES 1315
would be free to take away any benefits as it saw fit, and
particularly that the protection of senior employees
through the seniority provisions of the contract would be in
jeopardy because of the impact of recession on the industry
served by the Kedzie plant Respondent was entitled to
present facts as to the experience of its nonunion employ-
ees and arguments to rebut these leaflets, but it was not
entitled to do so in such a way that the message conveyed
was that it would not do as much for employees who were
represented by a union as it would for those who were
unrepresented
In the light of the previous conclusion of the majority of
the Board that the December 2 letter contained a promise
that employees would receive greater benefits if they reject-
ed the Union than if they retained it, I conclude on the
record before me that the December 2 letter violated Sec-
tion 8(a)(1) of the Act as alleged in the complaint 4
b The December 16 grant of benefits
The complaint alleges that the grant of increased bene-
fits to employees on December 16 while the objections to
the election were pending violated Section 8(a)(1) of the
Act The evidence presented establishes a prima facie case
in support of this allegation When the announcement was
made, the objections were under investigation Respondent
knew of them and knew that the objections charged Re
spondent with having promised to do what it was now
doing While Respondent contends that it acted upon legal
advice that the objections lacked merit, it must have known
that if that advice were wrong its actions might compro-
mise the fairness of any new election Not only does the
timing suggest that Respondent sought to gain an advan-
tage if a new election were directed, but the letter sent to
the employees to announce the increased benefits gives af-
firmative evidence that Respo.ident sought to convey that
the grant of benefits at that time was made to fulfill the
implied promise in Jacobs' December 2 letter Thus, the
introduction and close of that letter thanked the employees
for their vote of confidence in Grede management, and the
close invited "continued team work and cooperation in the
future to make Kedzie an even better place to work,"
indicating that because the Kedzie plant employees had
joined the team of Respondent's nonunion employees they
had received the benefits described in the letter and had
already made the plant a better place to work
Respondent contends, however, that the increased bene
fits were justified by necessity because Respondent's wage
rates had fallen behind the prevailing rates in the Chicago
labor market by the time the contract expired, because im
provements were further delayed beyond contract expira-
tion by the pendency of the decertification election and
earlier charges filed by the Union, and because the period
after the election was the first time Respondent could grant
increases which normally would have been granted upon
expiration of the contract
In support of this contention R J Ward, Respondent's
director of industrial relations, testified that in preparation
for anticipated contract negotiations his staff made a pre-
liminary survey of wages and benefits and he had advised
Respondent's president in June that it would be necessary
to program a minimum of a 9-percent wage increase and
some other benefits in plans for the coming fiscal year
which began November 1 According to Ward, the Kedzie
plant wage rates were not keeping pace with the employ-
ment market, the starting rates were no longer attracting
quality people to work at the plant, and Respondent was
experiencing an increase in turnover Ward also testified
that Respondent was falling behind schedule in deliveries
to three of its major customers, who were writing to com-
plain about late deliveries 5
Ward testified further that before the end of the fiscal
year after his staff had made additional surveys and had
checked with the Associated Industries of Greater Chicago
area, he advised Respondent's president that the 9-percent
increase he had proposed in June was no longer adequate
and that a 12-percent increase would be required to make
the Kedzie plant current At that time Ward also proposed
making changes in the vacation plans, insurance, and add-
ing a holiday Ward testified that the proposal for these
changes had as its objective to standardize benefits
throughout Grede Foundries' plants
According to Ward, after the objections were received he
discussed them with Respondent's president and its general
counsel, and their consensus was that the objections had
no merit because Respondent had run a clean campaign
and had not made promises Their further view was that
they could implement the benefits he recommended be-
cause they had held the benefit package in abeyance since
October 31, they were not attracting quality employees to
work at the plant, they were having other problems, and
implementation could not influence the vote
Ward conceded that he had rejected a union request in
May 1974, to meet with the Union in order to correct wage
inequities which the Union claimed had developed as a
result of unanticipated inflation and the restraints of Fed-
eral wage control regulations at the time the contract was
originally negotiated in 1972 Ward testified that he had
refused to reopen the contract in May because if Respon
dent gave away monetary benefits before negotiations for a
renewal agreement began, its bargaining position for ob-
taining contractual concessions from the Union would be
weakened, and it would have less to trade off in the up-
coming negotiations Ward testified further that if the
Union had won the election, Respondent would not have
offered the benefits conferred in the December 16 letter at
the outset of negotiations because it wanted to use the fi-
nancial portion of any offer to obtain other changes in the
contract
While the General Counsel urges that Ward's testimony
as to the considerations which led to the wage increases
should be discredited because no supporting documents
were introduced, the General Counsel made no request for
production of such documents at the hearing, and I find no
reason to doubt that the wage schedule provided by the
5 Although Ward did not so testify explicitly in the context of the ques
tion asked him it appears that he related Respondents problem in meeting
schedules to the problem of attracting quality applicants to accept jobs in
4 See also Westminster Community Hospital Inc 221 NLRB 185 (1974) the plant
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract had fallen behind the prevailing wages in the area
and that Ward had advised Respondents president that a
substantial increase would be needed after the contract ex-
pired
Nonetheless, Ward's testimony as a whole is not persua-
sive that business conditions made it necessary for Respon-
dent to grant the benefits described in its December 16
letter while the objections were pending As Ward conced-
ed, merit increases were given to some employees in the
summer of 1974 in addition to what the contract schedule
provided, and the contract itself gave Respondent discre-
tion to hire new employees above the contractual starting
rates based on their experience Moreover, even assuming
that implementation of a general wage increase was need-
ed, Ward's testimony makes it clear that the objective of
the other benefit changes was to make them uniform
throughout the Company, an objective that could have
awaited disposition of the objections Finally, Ward con-
ceded that if the Union had won the election, Respondent
was prepared to withhold increases in order to use them to
exchange for Respondent's objectives in bargaining, and
achievement of those objectives would have outweighed
any necessity for granting the benefits on December 16 In
sum, while I conclude that a catchup wage increase was
contemplated by Respondent and that other increases were
contemplated to make benefits uniform throughout
Respondent's plants, the evidence does not establish that
there was a business justification for granting the increases
at a time when the objections were pending and the possi-
bility of a rerun election remained Therefore, I conclude
that Respondent's grant of wage and benefit increases after
the election while the objections were pending was a re-
ward to the employees for having rejected the Union in
fulfillment of the implied promise in Jacobs' December 2
speech and violated Section 8(a)(l) of the Act 6
2 The alleged violation of Section 8(a)(5) and the request
for a bargaining order
The complaint alleges that Respondent refused to bar-
gain with the Union by promising and granting benefits, as
described above, in order to undermine the representative
status of the Union and to dissipate and destroy its majori-
ty The General Counsel contends that a presumption of
the Union's majority derives from the Union's certification
and the subsequent bargaining history, including the most
recent contract between the Union and Respondent, that
the filing of the decertification petition excused Respon-
dent from bargaining collectively with the Union while the
petition was pending but did not rebut the continuing pre-
sumption of majority or give Respondent license to make
unilateral changes without bargaining, and that the pre-
sumption of majority was not otherwise rebutted The
General Counsel also contends that Respondent's conduct
in promising and granting increased benefits was so perva-
sive in its impact as to make a free and uncoerced second
election impossible and that a bargaining order is neces-
sary in order to remedy the violations of Section 8(a)(1)
6 Westminster Community Hospital supra
Respondent contends that the presumption of continu-
mg majority is not applicable in this case, that it has of-
fered sufficient evidence to rebut any such presumption,
and that assuming that it unlawfully promised and granted
benefits, its conduct did not preclude a fair second elec-
tion
The initial question to be resolved is whether the Union's
majority may be presumed to have existed at the time of
Respondent's promises on December 2, 1974 The General
Counsel relies on Celanese Corporation of America, 95
NLRB 664 (1951) Respondent contends that the purpose
of the presumption found in that and similar cases was to
prevent disruption of established bargaining relationships
in the absence of objective evidence to support a good faith
doubt of majority or proof of actual loss of majority Re-
spondent contends that the presumption is not applicable
to determine the appropriateness of a remedy designed to
effectuate employee sentiment as sought by the General
Counsel in this case However, the Board in Automated
Business Systems, a Division of Litton Business Systems,
Inc ,' found the presumption applicable in circumstances
parallel to those in the instant case where the employer had
justification to interrupt the bargaining relationships pend-
ing an election but was ordered to bargain because of its
unfair labor practices which interfered with an election and
made a fair second election impossible The underlying ra-
tionale for the presumption is the same whether the occa-
sion for applying it arises in circumstances like those of
Celanese or those of this case As the Board stated in Auto
mated Business Systems,8 "Far from being an esoteric tech-
nicality, it is a recognition of the simple principle that a
status shown to exist is presumed to continue until shown
to have ceased " Accordingly, I find that the General
Counsel was entitled to rely on the presumption of the
Union's majority in this case I
Respondent next contends, relying on Stoner Rubber
Company Inc," that it is not obligated to rebut the pre-
sumption by a preponderance of the evidence but must
only produce evidence sufficient to raise a serious doubt as
to the Union's majority in order to neutralize the presump-
tion and require the General Counsel to produce evidence
of the Union's majority However in Automated Business
Systems, supra, the Board majority rejected the minority
position in Stoner on which Respondent now relies, and
stated, "[L]ike other rebuttable presumptions it [the pre-
sumption of majority] has the same force and effect as
other forms of proof of facts, and is rebutted only by the
kind of proof that would rebut a prima facie showing estab-
lished by other means " Indeed, in Automated Business Sys
tems, the Board found that there was sufficient evidence of
loss of majority known to the employer to raise a doubt of
continued majority and to justify a refusal to bargain pend-
ing resolution of that doubt But it nonetheless required the
General Counsel to adduce no evidence of majority be-
yond the presumption and found the presumption unrebut-
ted by the evidence which supported a good-faith doubt
Although Respondent cites rule 301 of the new Federal
205 NLRB 532 (1973) enforcement denied 497 F 2d 262 (C A 6 1974)
$ Id at 535
9 See also Westminster Community Hospital supra
10 123 NLRB 1440 (1959)
GREDE PLASTICS, A DIVISION OF GREDE FOUNDRIES 1317
Rules of Evidence as also supporting its contention, House
Conf Rept 93-1597, December 14, 1974, accompanying
H R 5463, makes it clear that rule 301 does not adopt the
position urged by Respondent While the Congress rejected
the notion of the presumption as evidence in the face of
contradictory evidence, it did not bar the drawing of an
inference from the facts on which the presumption is
based The Conference report stated "If the adverse party
does offer evidence contradicting the presumed fact, the
Court cannot instruct the jury that it may presume the exis-
tence of the presumed fact from proof of the basic facts
The Court may, however, instruct the jury that it may infer
the existence of the presumed fact from the proof of the
basic facts "
Thus, it is left to be decided whether the evidence of-
fered by Respondent in this case contradicts the presump-
tion of majority and if so, whether the inference of majori-
ty to be drawn from the bargaining history outweighs the
contradictory evidence
Respondent relies on six basic factors as contradictory
of the presumption of majority
a The decertification petition The General Counsel
would not agree to put the decertification petition in evi-
dence but offered to stipulate the number of employees
who signed it, and Respondent joined in the stipulation
The stipulation shows that 58 out of 188 employees em-
ployed as of August 23, 1974, 3 days after the decertifica-
tion petition was filed, signed the petition Thus, the peti-
tion establishes only that a minority of the employees were
opposed to continued representation by the Union and
standing alone does not contradict the presumption
b Employee expressions of discontent with the Union
made known to Respondent and the Union before the elec-
tion
R J Ward, Respondent's Director of Industrial Rela-
tions, testified early in the hearing that after the decertifi-
cation petition was filed and before the election, Larry Mc-
Coy who signed the Board's petition form, told him that
over 50 percent of the employees did not want the Union
as their bargaining representative This testimony was of-
fered and received not for the truth of McCoy s assertion,
but to show what information Respondent had at the time
Ward indicated that he could not be specific as to when
this conversation occurred between August and December
and could recall nothing else from their conversation ex-
cept that he thought McCoy made the statement in passing
in a corridor one day after an employee meeting When
McCoy testified immediately after Ward, he denied that he
ever had a conversation with Ward in a hallway at the
plant in which he stated anything in regard to whether a
majority of the employees wanted the Union or not, and
the matter was not pursued further by Respondent
At the end of the hearing Ward was recalled and asked
about conversations with other employees about employee
support for the Union Ward then identified Mary Wash-
ington, Irene Brooks, Geneva Smith, Pernell Dixon, and
Maggie Whitlow as employees who personally informed
him before the election as to whether the Union was sup-
ported by a majority of those in the unit Ward testified
that there were a number of others whose names he did not
recall as well, and that this information came to him gener-
ally when he was visiting production areas of the plant On
direct examination Ward was not asked what these em-
ployees told him, but on cross-examination he testified that
they indicated that a majority did not want the Union He
testified that he could not recall when he spoke to any of
these employees With respect to Dixon (also referred to by
Ward in his testimony as Roberts) he testified that he could
remember more specifically that she told him that she was
dissatisfied with union representation and would like to get
out Ward testified that Washington and some of the others
told him that they were considerably dissatisfied with the
Union, that a majority of them were dissatisfied, and that
they were going to vote it out Ward testified that no one
ever told him on what basis they believed that a majority
no longer wanted the Union
Ward also testified that a number of employees com-
plained because the Union was "hassling" them in the
plant He testified that Angie Chavez complained that the
Union was using her name on handbills without her per-
nussion, and others complained to him that the Union told
them that if the Union was voted out the Company would
take away vacation privileges, seniority, pension benefits,
and shift premiums Ward testified that he did not know
the names of some of the employees who voiced these com-
plaints
Mary Washington, Irene Brooks, Geneva Smith, Maggie
Whitlow, and Angie Chavez, were all called as witnesses by
Respondent before Ward's second appearance on the
stand, but none of them were asked about their conversa-
tions with Ward Il
With the exception of the two conversations described
by Ward with Dixon and Chavez which went only to their
own personal dissatisfaction with the Union, Ward s testi-
mony is most notable for its lack of specifity and its attri-
bution of identical remarks to a number of people Certain-
ly McCoy's contradiction of Ward, the sequence of Ward's
testimony, and the failure even to seek corroboration of it
from other employee witnesses, who testified before Ward
was recalled as a witness, do nothing to strengthen his testi-
mony At best this testimony would show nothing more
than that some employees were dissatisfied, already shown
by the petition,12 and that some of them expressed the
opinion that they were part of a majority Taken at face
value, Ward's testimony establishes nothing more than em-
ployee belief At most the conversations he described re-
flect shop talk and hearsay, at worst they reflect a trans-
parent attempt to shore up a position in which Ward's
interest is clear Given Ward's vagueness as to these con-
versations, McCoy's contradiction of Ward, and the lack
of corroboration of Ward by any other witness I am not
persuaded that Ward's testimony reflects any certain me-
mory of any conversation with any individual employee to
the effect that a majority of the employees supported the
petition I conclude that Ward's testimony in this respect
neither supports an inference that the Union had lost its
majority nor establishes a foundation for a claim of good-
faith doubt of majority
"Washington was recalled after Ward testified for the second time but
again was not questioned about her conversations with Ward
12 Mary Washington Irene Brooks Geneva Smith Maggie Whitlow and
Angie Chavez each signed the petition
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c The Union's election defeat Respondent argues that
the vote in the initial election should be considered as evi-
dence of loss of majority, relying on recent studies which it
asserts show that promises or grants of benefits have little
if any impact on elections Respondent's contention in this
regard flies in the face of the Board's Decision that the
election should be set aside and its consistent treatment of
promises and grants of benefit As the election has been set
aside by the Board, its results are invalid and may not now
be used as evidence that the Union had lost its majority 13
d Alleged dilatory tactics of the Union to delay the ini-
tial election Respondent contends that the Union engaged
in dilatory tactics before the election in order to buy time
to mend its fences Respondent relies in this regard on re-
jected evidence concerning the filing of a charge by the
Union on September 6, 1974, alleging that Respondent vio-
lated Section 8(a)(1) and (5) of the Act by withdrawing
recognition from the Union and refusing to permit its rep-
resentatives access to Respondent's premises on the
grounds that the collective-bargaining agreement sched-
uled to expire October 31, 1974, was null and void Re-
spondent offered to prove that while the charge was pend-
ing the hearing on the decertification petition was
postponed indefinitely and not reschedul.,d until after the
charge was dismissed on November 1, 1974
The fact that the charge may have delayed the hearing
and was ultimately dismissed as without merit does not
establish that its filing was a dilatory tactic and certainly
does not constitute evidence that the Union had lost its
majority I reject Respondent's contention in this regard
and affirm my rejection of documentary evidence prof-
fered to support this contention
e Respondent s good-faith doubt of the Union's majori-
ty Respondent contends that it had a good-faith doubt of
the Union's majority which in turn establishes a serious
doubt of the Union's majority sufficient to require the
General Counsel to go forward with independent evidence
of the Union's majority This contention is made in con-
junction with Respondent's reliance on Stoner Rubber dis-
cussed above Apart from my rejection of the argument
based on Stoner Rubber I have also considered and rejected
Respondent's contention that it entertained an objectively
based good-faith doubt of the Union's majority
As evidence to support its good-faith doubt Respondent
relies on the filing of the decertification petition, the fact
that the Union demanded bargaining immediately after the
petition was filed, the alleged dilatory filing of the charge,
the nature of the Union's campaign propaganda, and em-
ployee expressions of dissatisfaction with the Union
The filing of the petition was enough to justify Respon-
dent in refusing to bargain over a renewal agreement 14
However, the mere filing of such a petition is not enough to
raise a good-faith doubt of majority in the absence of other
objective evidence to show majority support of the peti-
tion 15 I have rejected above as independent evidence of
loss of majority the statements of employees to which
Ward testified and reject that testimony as well as evidence
13 Westminster Community Hospital supra at fn 2
14 Telautograph Corporation 199 NLRB 892 (1972)
15 Wabana Inc 146 NLRB 1162 1171 (1964)
of good faith doubt because I do not find it reliable Nei-
ther the Union's demand for bargaining nor its filing of
charges give objective grounds to doubt majority Each
was premised on just the opposite assumption Contrary to
the thrust of Respondent's contention, in order to avoid
the charge that it has created a good-faith doubt of its
majority a union faced with a decertification petition need
not acquiesce in an immediate election and refrain from
any permissible effort to preserve its status without an elec-
tion Similarly, as long as its campaign propaganda is not
objectionable and contains no overt admission that it has
lost its majority, the tactical course it chooses to pursue in
the election campaign gives rise to no such doubt
f Offers to prove that a majority of the employees
would testify or told others that they did not want the
Union to represent them before December 2, 1974 Finally,
Respondent would show that 20 present employees who
were eligible to vote in the election signed the decertifica-
tion petition and would testify that they did not desire
union representation immediately prior to December 2,
1974, the date of Jacobs' letter, that 50 present employees
and 2 former employees who were eligible voters would
testify that they did not sign the petition and did not desire
union representation immediately prior to December 2,
1974, and that Mary Washington would testify that she
had contact with 38 former employees who were eligible
voters who told her that they did not wish the Union to
continue to represent them 16 No evidence was offered to
show that, apart from signing the decertification petition,
any of the employees would have testified that they coin
municated their desires to any representative of the Union
or management
The testimony offered by Respondent at most would
show a mere change of view by employees unaccompanied
by any unequivocal action communicating to the Union or
Respondent an intention to withdraw authorization from
the Union to represent them Such evidence is not ade-
quate to establish withdrawal of authorization by the em
ployees who allegedly spoke to Mary Washington or whom
Respondent offered to call to testify 17 Moreover, the elic-
iting of employee sentiments in open court after promises
have been made, an election has been lost, and benefits
have been granted is not a reliable indicator of what em-
ployee sentiments were before any of these things oc-
16 The testimony of 46 of the employees covered by this offer was heard
before the General Counsels motion to strike their testimony was granted
and the offer of proof as to them stands in the form of their struck testimo
ny Respondent has made a further offer with its brief changing slightly the
offer of proof made at the close of the hearing seeking to supply further
foundation for the admissibility of Mary Washington s testimony and seek
ing to explain the adverse testimony of several witnesses called by Respon
dent on the last day of the hearing With respect to Mary Washington s
offered testimony Respondent has noted the coincidence between the num
her of signers of the decertification petition who did not testify and the
number of employees who allegedly told Mary Washington that they did
not wish the Union to continue to represent them Respondent does not
alleree that the composition of these two groups differs
i Jas H Matthews & Co v NLRB 354 F 2d 432 437-438 (C A 8
1965) cert denied 384 U S 1002 (1966) NLRB v Moores Seafood Prod
acts Inc 369 F 2d 488 490 (C A 7 1966) enfg 152 NLRB 683 Priced
Less Discount Foods Inc d/b/a Payless 157 NLRB 1143 1150 (1966) enfd
405 F 2d 67 (C A 6 1968) Southbridge Sheet Metal Works Inc 158 NLRB
819 829 (1966) enfd 380 F 2d 851 (C A 1 1967)
GREDE PLASTICS, A DIVISION OF GREDE FOUNDRIES 1319
curred 18 Although the questioning of Respondent's em-
ployees in preparation for the hearing and at the hearing is
not alleged as a violation of the Act, two of the safeguards
required by the Board for permissible polling of employees
were not met in this case The poll was not conducted by
secret ballot, and Respondent had engaged in prior unfair
labor practices The Board's usual finding that a non-secret
poll following unfair labor practices is coercive reflects di
rectly the view that such a poll will cause employees to fear
reprisal and therefore refrain from further demonstration
of union support That fear also taints the fruits of such
polling Whether or not this polling independently violated
Section 8(a)(1), the failure to conform with these safe-
guards, as well as the fact that employees were being asked
in late 1975 to describe their sentiments before December
2, 1974, renders the proffered testimony inherently unreli-
able Accordingly, I affirm my rejection of Respondent's
offers of proof at the hearing and reject Respondents fur-
ther posthearing offer attached to its brief
In sum, I find that the evidence presented and offered by
Respondent considered separately and as a whole is not
sufficient to contradict the presumption that the Union's
majority continued That evidence shows little more than
that a decertification petition was filed supported by less
than a majority of Respondent's employees I find there-
fore that the Union continued to represent a majority of
Respondent's employees as of December 2, 1974, when the
first unfair labor practices found above occurred
I find also that the nature of the unfair labor practices,
particularly the grant of benefits following the election,
makes impossible the conduct of a fair second election
Standing alone, Jacobs' December 2 and 3 promises to em-
ployees would probably have had too slight an effect to
warrant a bargaining order But the December 16 grant of
benefits radically disturbed the balance In similar cases,
the Board has placed considerable weight on such grants 19
Unlike the mere promise whose effects dissipate the longer
it goes unfulfilled, the grant of benefits reinforces the effect
of the promises and with each receipt of the increased ben-
efits the effects of both are again reinforced Here the grant
of benefits was particularly sweeping, not merely adjusting
employee wages so that they could catch up to others but
also cutting across the range of ancillary benefits received
by the employees in addition to their wages I find that the
grant of increased benefits following shortly after Jacobs'
preelection letter and speeches is conduct of a kind which
leaves a lingering effect upon employees and impairs their
ability to express a free choice in another election Accord-
ingly, as I have found above that there is no probative
evidence that the Union had lost its representative status as
established by its certification and bargaining history prior
to December 2, 1974, I shall recommend that Respondent
be ordered to bargain with the Union to remedy its unlaw
ful conduct 20 As Respondent's unfair labor practices be-
18 Retired Persons Pharmacy 210 NLRB 443 449-450 (1974) enfd 519
F 2d 486 491 (C A 2 1975) See also Struksnes Construction Co Inc 165
NLRB 1062 (1967)
19 Steel Fab Inc 212 NLRB 363 (1974) Idaho Candy Company 218
NLRB 352 (1975) Westminster Community Hospital supra
20 Automated Business Systems a Division of Litton Business Systems su
pia Westminster Community Hospital supra
gan on December 2 and the subsequent grant of benefits
appears related to the initial promise, I shall recommend
that Respondent be required to recognize and bargain,
upon request, with the Union as of December 2, 1974 1 As
a consequence thereof, I find further that Respondent's
unilateral grant of benefits to the bargaining unit employ-
ees on December 16, 1974, violated Section 8(a)(5) of the
Act, as Respondent thereby refused to recognize and bar-
gain with the Union as majority representative while en-
gaging in conduct which undermined the Union and pre-
vented holding a fair second election 22
IV THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act For the reasons
set forth above, I shall recommend that Respondent be
ordered to bargain collectively with the Union as represen-
tative of its production and maintenance employees
CONCLUSIONS OF LAW
1 Felsenthal Plastics, Inc, now known as Grede Plas
tics, a Division of Grede Foundries, Inc, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
2 District 8, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
3 All production and maintenance employees employed
by Respondent now located at 3500 North Kedzie, Chica-
go, Illinois, excluding printers, office clerical employees,
artists, designers, employees employed on a salary basis,
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 At all times since December 2, 1974, the Union has
been and now is the exclusive representative of the employ-
ees in said unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act
5 By promising and granting employees increased bene-
fits in order to induce them to vote to decertify or other-
wise reject the Union as their bargaining representative Re-
spondent has engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act
6 By refusing since on or about December 2, 1974, to
recognize and bargain collectively with the Union as the
exclusive representative of the employees in the unit de-
scribed in paragraph 3, above, while engaging in conduct
which undermined the Union and prevented holding a fair
election, Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(5)
and (1) and 2(6) and (7) of the Act
21 Trading Port Inc 219 NLRB 298 (1975)
22 Ibid
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER23
Respondent, Felsenthal Plastics, Inc n/k/a Grede Plas-
tics, a Division of Grede Foundries, Inc, Chicago, Illinois,
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Promising or granting employees increased benefits
in order to induce them to vote to decertify or otherwise
reject District 8, International Association of Machinists
and Aerospace Workers, AFL-CIO, as their bargaining
representative
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all of
the activities specified in Section 7 of the Act
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act
(a) Upon request, recognize and bargain collectively
with the Union as the exclusive representative of the em-
ployees in the appropriate unit described in paragraph 3 in
the section of this Decision entitled "Conclusions of Law'
and upon request embody in a signed agreement any un-
derstanding reached
(b) Post at its Chicago, Illinois, place of business copies
of the attached notice marked "Appendix " 24 Copies of
said notice, on forms provided by the Regional Director
for Region 13, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
23 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided m Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
24 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
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 Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material
(c) Notify the Regional Director for Region 13, in writ-
ing, within 20 drys from the date of this Order, what steps
Respondent has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise or grant you increased bene-
fits in order to induce you to vote to decertify or
otherwise reject District 8, International Association
of Machinists and Aerospace Workers, AFL-CIO, as
your bargaining representative
WE WILL upon request recognize and bargain collec-
tively with District 8, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, for the
unit described herein with respect to rates of pay,
wages, hours of work, and other terms and conditions
of employment, and WE WILL upon request embody in a
signed agreement any understanding reached The
bargaining unit is
All production and maintenance employees now lo-
cated at 3500 North Kedzie, Chicago, Illinois, ex-
cluding printers, office clerical employees, artists,
designers, employees employed on a salary basis,
guards, and supervisors as defined in the Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to engage in or to refrain from engaging
in any or all the activities specified in Section 7 of the
Act
FELSENTHAL PLASTICS, INC n/k/a GREDE PLASTICS,
A DIVISION OF GREDE FOUNDRIES, INC