Griffith Ladder Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1966

159 N.L.R.B. 175 (N.L.R.B. 1966)

GRIFIITII LADDER CORPORATION 175
WE WILL NOT give reprimands or warnings to employees for engaging in
prounion activities either during or outside working time while ourselves engag-
ing in, and permitting and encouraging other employees to engage in, antiunion
activities during such time.
WE WILL NOT enforce our no-solicitation rule in such a manner as to dis-
criminate between prounion and antiunion protagonists.
WE WILL NOT in any like or related manner interfere with, iestrain, or
coerce our employees in the exercise of their rights guaranteed under Section
7 of the Act.
WE WILL expunge from the personnel files of employees Eugene Fyffe and
John Goodloe all mention of the warning notices and reprimands given them
between January and May 1965, in connection with their union activities.
THE STANDARD PRODUCTS COMPANY,
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,
Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202.
Telephone 684-3627.
Griffith Ladder Corporation and Aluminum Workers Interna-
tional Union , AFL-CIO
Griffith Ladder Corporation and Aluminum Workers Interna-
tional Union, AFL-CIO, Petitioner . Cases 4-CA-3608 and
4-RC-6281. June 13, 1966
DECISION AND ORDER,
On March 4, 1966, Trial Examiner Sidney D. Goldberg issued his
Decision in the above-entitled proceeding, finding that respondent
had engaged in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner further
found merit in the objections filed by the Union to the election con-
ducted on March 12, 1965, and recommended that the election be
set aside and all proceedings in that case be vacated. Thereafter,
Respondent filed exceptions to the Decision and a supporting brief,
and General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
159 NLRB No. 12.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in these cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following
modifications.
1. In section III, C, 3 of his Decision, the Trial Examiner enu-
merates various instances of 8 (a) (1) violations engaged in by the
Respondent after the Union had filed its election petition and prior
to the holding of the election. One of the incidents included in this
section is an encounter between Respondent's Vice President
Choiniere and employee Potts, in which, according to the Trial
Examiner's findings, Choiniere remarked on the availability of over-
time work and said that the men should be satisfied. Relying on
Potts' testimony of his "impression" that, in this conversation,
Choiniere was threatening a discontinuance of overtime, the Trial
Examiner apparently concluded that this evidence amounted to an
8 (a) (1) violation. The record, in our opinion, does not support
this finding. Choiniere's remarks appear to have been noncoercive
arguments in which he pointed out other existing conditions, such
as sufficient work and no layoffs which, Choiniere thought, should
satisfy the employees that the Union was unnecessary. Potts should
not have been permitted to testify to his "impression" that Choiniere's
statement was intended to be a threat; 1 in any event, we do not
believe that the actual statement, as described by Potts, constitutes
a threat in violation of Section 8(a) (1), and we do not adopt the
Trial Examiner's incorporation of this incident into his cumulative
8(a) (1) finding.
In the same section, the Trial Examiner finds that employee
Killian, among others, was unlawfully questioned by Respondent's
officials. Killian's testimony shows that he was never questioned
about the Union by these officials. We therefore delete this particu-
lar finding from the overall violation found by the Trial Examiner.
In all other respects, we agree with and adopt the Trial Exam-
iner's findings of 8 (a) (1) violations.
2. The heart of the complaint was Respondent's alleged violation
of Section 8(a) (5) by refusing to recognize and bargain with the
Union. The General Counsel proved that, after obtaining cards
from a majority of Respondent's employees, the Union mailed to
Respondent a demand for recognition and bargaining. Upon receipt
of the Union's demand, Respondent's agents, Choiniere and Barnes,
conducted an informal poll of the employees to ascertain their inter-
'Potts was able to fully recount his conversation with Cholniere. Accordingly, it was
improper to allow him to offer, over objection, his conclusion as to the meaning of, or
his understanding of, Choiniere ' s words . 2 Jones, Evidence § 403 (3d ed 1958).
GRIFFITH LADDER CORPORATION 177
est in the Union.2 Respondent thereupon wrote a letter refusing
to meet with the Union, on the ground that it did not believe the
Union represented a majority. The Union then filed a petition for
an election, but Choiniere and Barnes countered to defeat the Union
through the use of weapons outlawed by Section 8(a) (1) of the Act:
threats, interference, and improper influence. In the 3-week period
preceding the election, Barnes and Choiniere, sometimes in tandem,
persistently questioned employees about their views and the views
held by fellow employees; asked employees to convince others to
renounce the Union; and threatened employees, variously, with
plant closure, elimination of overtime, and possible layoff. During
a preelection hearing, Barnes suggested to several employees that
they ask the Board's field examiner for the return of their authori-
zation cards, although a number of these employees had never indi-
cated to Barnes an interest in revoking their authorizations.
The Trial Examiner found that the results of the employee poll
taken by Respondent immediately after receiving the Union demand
could not reasonably have given rise to a good-faith doubt as to the
Union's majority status. He therefore concluded that Respondent's
expression of doubt, in its reply to the Union, was simply a maneu-
ver to gain time in which to subvert the Union's majority position,
and hence was a violation of Section, 8(a) (5).
We need not, however, determine the effect to be given the poll in
the circumstances of this case, in view of Respondent's unlawful
conduct subsequent to the poll. The continuous, and sometimes
repeated, questioning of employees as to their union sentiment, the
efforts to entreat some employees to proselytize others to abandon
the Union, and the heavy-handed threats to the employees ' income
and job security, all convincingly demonstrate that Respondent's
initial refusal to bargain was really inspired, not by a good-faith
doubt that the Union possessed majority support, but rather by a
desire to destroy the Union's majority status.
In the light of the entire record, we find it to have been amply
demonstrated, as found by the Trial Examiner, that the Union
represented a majority of the employees in the appropriate unit,
2 The Trial Examiner properly found this poll to be violative of Section 8(a) (1). How-
ever legitimate the purpose of the poll , Respondent failed utterly to minimize the inherently
coercive impact of such systematic Interrogation by use of the safeguards prescribed by
the Board in Johnnie 18 Poultry Co ., 146 NLRB 770 , enforcement denied 34 4 F 2d 617
(CA. 8). But see NL.R.B v. Lorben Corporation, 345 F.2d 346 , 349 (C.A. 2 ) ( dissent-
ing opinion, in which Judge Friendly analyzes and approves the Board 's adoption of
ground rules for employee interrogation ). We note also that Respondent did not merely
neglect to allay the likely anxiety of the employees questioned , but further provoked that
anxiety by asking two employees to Identify the Instigators of the union activity and by
accusing another of having initiated the union campaign
243-084-67-vol. 159-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the Respondent refused a proper demand for bargaining
made upon it by the Union as such representative. We find accord-
ingly that Respondent violated Section 8 (a) (5) of the Act in
refusing to recognize and bargain -with the Union.'
As recommended by the Trial Examiner, we sustain the objections
to the election based upon Respondent's unfair labor practices occur-
ring after the filing of the representation petition and before the
election. We shall order the Respondent to bargain, upon request,
with the Union, and we hereby dismiss the representation petition.
[The Board adopted the Trial Examiner's Recommended Order.]
3N.L.R.B . v. Joy Silk Mills, Inc ., 185 F .2d 732 (C.A.D.C.); John P. Scrpa, Inc., 155
NLRB 99; Drug King, Inc., 157 NLRB 343; Jean Mfg, Inc., 156 NLRB 643
TRIAL EXAMINER'S DECISION
In this consolidated proceeding, under Sections 9(c) and 10(b) of the National
Labor Relations Act, as amended (herein called the Act), the issues to be decided
are whether Respondent interfered with its employees' rights of self-organization,
whether it improperly refused to bargain collectively with the Charging Party
(herein called the Union) as the representative of its employees, and whether the
objections filed by the Union to the results of the election held on March 12, 1965,
should be sustained and the election set aside.'
These issues, raised by Respondent's answer to the consolidated complaint, came
on for hearing before Trial Examiner Sidney D., Goldberg, on August 9 and 10,
1965, at Pottsville, Pennsylvania. All parties were represented and afforded an
opportunity to present evidence, cross-examine witnesses, and argue upon the facts
and the law. Briefs filed by the General Counsel and by counsel for the Respond-
ent have been considered.
For the reasons set forth in detail below, I find that Respondent interfered
with its employees' rights of self-organization; that the Union is the collective-
bargaining representative of Respondent's employees and that Respondent's refusal
to bargain with it is an unfair labor practice. I also find that the objections to the
election have ment and that the election should be set aside but, in view of the
order to be recommended and established Board procedure, the petition in the
representation case should be dismissed and all proceedings thereon vacated.
Upon the entire record herein 2 and the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Griffith Ladder Corporation (herein referred to as Respondent in connection
with both the complaint and representation cases),3 a Pennsylvania corporation
engaged in the manufacture of wooden and aluminum ladders at Auburn, Pennsyl-
vania, is a subsidiary of a Massachusetts corporation bearing the same name and
engaged in the same business in Massachusetts. Its answer admits that it annually
imports into Pennsylvania materials valued at more than $50,000 and that it
annually manufactures and exports products valued at more than $50,000.
1 The objections to the Glection in Case 4-RC-6281 were filed March 19, 1965, and the
charge in Case 4-CA-3608 was filed March 29, 1965. On May 21, 1965, the Regional
Director of Region 4 recommended that the objections be consolidated for hearing with
the complaint which he had determined to issue on the charge. The employer filed ex-
ceptions to the recommendation of the Regional Director The Board, by order dated
June 18, 1965, adopted said recommendation and directed that the hearing on the
objections be consolidated with the bearing in the complaint case. The consolidated com-
plaint and notice of hearing was issued June 29, 1965.
2 The General Counsel's motion to correct the word "you" to "he" on page 250, line 25,
was not opposed and is granted.
3 Name of Respondent and Employer as amended at the bearing.
GRIFFITH LADDER CORPORATION 179
H. THE UNION INVOLVED
The answer admits that the Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology
Unsuccessful efforts to organize Respondent's employees were made by the Union
in 1961. Early in 1965 4 another organizing effort was begun under the general
direction of International Representative John T. Sarno, who assigned the task to
Alfred Nagle, a part-time employee of the Union living in the vicinity of Respond-
ent's plant.
Nagle, in turn, enlisted the assistance of James H. Wike, one of Respondent's
employees, who undertook to find out whether the men were interested and, on
February 8, Wike took a supply of the Union's authorization cards .5
At the plant on February 9 and 10, Wike handed the cards out in batches to
several of his fellow employees and as single cards to others, asking them "if they
were interested in being unionized" and stating that "we'd have to have the majority
of the people to sign the cards, to get union representation."
By the end of the day on February 10, Wike had received signed cards from 28
of the 48 employees and he and Nagle delivered these to Sarno. The next day
Sarno wiote Respondent, stating that the Union "represents a majority of the hourly
employees at your plant," asking that a meeting be arranged before February 16
to choose a neutral party to check the authorization cards against the payroll and,
upon completion of the card check, to begin bargaining sessions on February 17.
This letter was admittedly received by Respondent on Friday, February 12.
Immediately upon receiving the letter, Albert D. Choiniere, Jr., Respondent's
vice president, accompanied by Arthur Roy Barnes, the plant manager, interviewed
practically all of the production and maintenance (but not office) employees at
their work stations. The general format of the interview, according to Choiniere,
was a statement by him that there was "a rumor going around" that some of the
men wanted a union and his request to each man for his opinion on the point.
After this poll of its employees, Respondent, through counsel, wrote a letter
dated February 15 to the Union stating that it had "no information which would
indicate" that the Union represented a majority of the hourly employees at the
plant, declining to meet with it and pointing out that the Union might petition for
an election.
On February 19 the Union filed the petition herein. On March 3, at a confer-
ence with a Board representative at the plant, the parties entered into a stipula-
tion for certification upon consent election. During this conference, admittedly at
Barnes' suggestion, seven employees visited the plant office in an unsuccessful effort
to obtain their signed authorization cards. The election was,set for March 12 and
held on that day: the vote was 15 for and 33 against the Union. On March 19 the
I All dates hereinafter are 1965 unless otherwise specified.
'In view of some of Respondent's arguments in support of its contention that, with
respect to certain employees, the cards were invalid for the purpose of evidencing these
employees' designations of the Union as their representative, the card is here set forth
in facsimile:
ALUMINUM WORKERS INTERNATIONAL UNION
Affiliated with the American Federation of Labor and the Congress of
Industrial Organizations
Authorization for Representation Under the
National Labor Relations Act
I, the undersigned employee of the
------------------------------------------- Dept----------------
(Name of Company)
-------------------------------------------------------------------
Home Address__________________________________ Telephone No_______
I hereby designate and authorize the ALUMINUM WORKERS INTERNA-
TIONAL UNION, AFL-CIO, to represent me for the purpose of Collective
Bargaining in all matters pertaining to wages, hours and working conditions.
This authorization cancels any previous authorization.
Signature of Employee----------------------------------------
Date -------------------------------------
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union filed objections to the election based upon alleged interrogation of and
threats to the employees and the requests by the employer that employees withdraw
their authorization cards.
B. Contentions of the parties
The General Counsel contends that Respondent's poll of its employees, as con-
ducted, constituted interference with their right of self-organization; that during
the course of the poll and on several occasions between that event and the holding
of the election Respondent made threats of retaliation, in the form of loss of over-
time work, closing of the plant, and changes in working conditions, should the
employees choose the Union as their bargaining representative; that on March 3
Respondent interfered with its employees' rights of self-organization by soliciting
seven of them to withdraw their designation of the Union and, tetween March 3
and 12, by requesting certain employees to try to coerce others into voting against
the Union.
The General Counsel also contends that Respondent's refusal to bargain with the
Union is an unfair labor practice because the Union did, in fact, represent a major-
ity of the employees on February 11 and that Respondent did not have a good-
faith doubt concerning the Union's status. He also contends that Respondent's
conduct made a fair election impossible, that the election should be set aside, and
that Respondent should be directed to bargain collectively with the Union.
Respondent contends that its poll of employees was justified and properly con-
ducted; that it gave rise to a good-faith doubt concerning the Union's representation
of a majority of the employees; and that at least some of the cards were invalid,
either because obtained by misrepresentation or by reason of other defects, so that'
the Union did not, in fact and as proved the election, represent such majority.
C. Discussion and conclusions
1. The authorization cards
It was stipulated that on February 12, when the Union requested recognition,
Respondent had 48 production and maintenance employees, including truckdrivers.
Accordingly, proof is required that on that date at least 25 of these employees had
designated the Union as their representative. -
Authorization cards had been executed by .28 of these employees 6 and 27 of
these cards were in the possession of International Representative Sarno when he
marled the letter requesting recognition.? All 28 of the signers 'testified to their
signatures and the circumstances under which they had signed. Respondent does
not impugn the authenticity of any of the signatures and raises no objection to the
validity of 19 of the cards, except a general claim-considered hereafter-that the
Union's literature misrepresented the purpose for which the cards were solicited.
The authorization cards of the following employees, Respondent contends, are
invalid by reason of one or more specified defects.
Mark E. Reeser. Respondent contends that the card of this employee should be
considered invalid because:
(a) the fellow employee who gave him the card told him that there would
be an election a couple of weeks after a majority had signed cards, and
(b) the fellow employee told him that the card would be "secret."
In addition to the foregoing, however, Reeser testified that he was told, when he
was given the card, that it was "for a union," that he read the card, filled in all
the blank spaces, signed it and handed it back.
As to (a): The authorization card is simple and direct: any person of modest
intelligence-and Reeser impressed me as being far above that-would have no
difficulty in understanding its content Notwithstanding its clarity, of course, had
the Union secured it by a serious misrepresentation, it would be ineffective for its
eOne additional card, that of Charles E Koch, was delivered to the'tnion but his
name does not appear on the list of 48 employees stipulated as the roster of employees
when the Union demanded recognition and the General Counsel, satisfied that Koch was
not in the employ of Respondent between February 9 and 19, does not rely upon this card.
7 The 28th card appears to have been that signed by Riegel and misplaced after he had
signed It. A substitute card, however , was signed by Riegel about a week later and Sarno
had it in time to submit it to the Board on February 19 in support of the Union's petition
for an election.
GRIFFITH LADDER CORPORATION- 181
stated purpose. ,The • testimony of Wike,f.who was the central figure in, obtaining
the signed cards' and-, who distributed them by giving several to each of a few
selected fellow employees-including Glenn Leymeister, who gave ,then card to
Reeser-testified that he told them "there's a. possibility we'll have_ an election"
but-that he did not:say,-that cards were "only" to, get an election., hatever talk
there was about an election was, I find, in- accordance with the statement Wike
made to his fellow, employees. The Board cases are legion to,,the effect that state-
ments concerning,the holding of- an election-short of the flat statement that the
only purpose of the card is to obtain an election-do not invalidate the- authoriza-
tion cards.8 The evidence falls far short of this point and is insufficient to inval-
idate Reeser's card on .this ground.9 ;
As to (b)• The argument concerning the "secrecy" of the cards appears to
originate in the testimony of Wike that, when his aid in securing cards was enlisted
by Nagle, he mentioned the possibility that Respondent, if it learned' that some of
its employees had signed cards, might fire or lay them off: Nagle answered that
the- names of the signers would be "classified" or kept on a "need-to-know" basis.
With respect to,this card, Reeser testified that Glenn Laymeister told him, that it
would be secret. This "representation," Respondent argues, is "inconsistent" with
the use of the card in establishing the Union's status as the collective-bargaining
representative of this employee. How or why this is so is not, however, set forth
and I am unable to supply a rationale for Respondent's argument. The proposition
bears no resemblance to those involved in the commoner objections which have
their roots in claims either that the authorization card is not what it purports to
be or that, by reason of some misrepresentation, the signature does not connote the
signer's true consent. Here, the participants in the card signing had a particular
-situation in mind and, had Reeser been discharged by Respondent by reason of its
discovery that he had signed a card, Reeser might have had good cause for resent-
ment against Laymeister or the Union. Notwithstanding such contingency, how-
ever, there is nothing in this argument which impairs the validity of the card as
Reeser's designation of the Union as his bargaining representative and I find it valid
for this purpose.
Lee Riegel: Respondent contends that this employee's card should be considered
invalid because:
(a) he could not understand the purpose of the card and, therefore, it
could not represent his true intention, and,
(b) after the card first signed by him had been lost and after the date of the
Union's demand for recognition, he signed this second, back-dated card.
As to (a): Richard W. Fisher, a fellow employee, testified that on February 9
he explained to Riegel "what it was all about" and that the purpose of the card
was "to get union representation." Fisher filled out and dated the card and Riegel
signed it. John E. Lucas, who also works with Riegel, corroborated Fisher's testi-
mony. Although it was apparent, from Riegel's testimony, that his intellectual
development is limited, I am convinced that he understood the questions put to him
at the hearing when he identified his signature on the card in evidence and credibly
testified that he had signed another card "a good bit" of time previously. From the
testimony of Fisher, Lucas and Riegel, I find that Riegel, when he signed the cards,
did sufficiently understand their purpose and that his act in signing them evidenced
his designation of the Union as his representative.
As to (b): A few days later it was determined that Riegel's card had been lost.
Lucas testified that he thereupon filled out a second card for Riegel, dating it back
to February 10. Lucas also explained to Riegel the purpose of the card and that
the first one had been lost. Riegel thereupon signed the second card. Fisher cor-
roborated Lucas's testimony. The record, therefore, satisfactorily establishes the
existence of an authorization card signed by Riegel on February 9, prior to the
Union's demand, and I find that the second one adequately represents the first.
Accordingly, Riegel's card will be counted as his authorization of the Union to be
his collective-bargaining representative.io
8 Cumberland Shoe Corporation , 144 NLRB 1268 , enfd. 351 F.2d 917 ( C.A 6) ; S N C
Manufacturing Co., Inc, 147 NLRB 809, 822, enfd ' 352 F.2d 361 (C.A D C cert
denied 382 U.S. 902; Bernard S. Happach d/b/a 14th Street Market, 151 NLRB 560;
Freeport Marble et Tile Co., Inc., 153 NLRB 810; Lenz Company, 153 NLRB 1399; and
Crown Tar and Chemical Worka, Inc ., 154 NLRB 562.
0 See Aero Corporation, 149 NLRB 1283.. I
10 See DuBois Fence & Carden Co., Inc, 156 NLRB 1003.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerald R. Vandermeer: Respondent contends that this employee's card should be
considered invalid because it was not signed until about a week after the February 9
date shown on it.
Respondent concedes that the employee had, prior to February 11, signed'a slip
of paper containing some of the, material which appears on the card. - Vandermeer
testified that on February 9 he saw John Lucas, one of those to whom Wike had
given a batch of cards, hand them to several of his fellow employees. He asked
Lucas for one but Lucas said he had given-out all he had and would have more in
a couple of days. Lucas then said that, if Vandermeer wanted to "vote" for the
Union, -he could make his own card out of a piece of paper. They picked up a
writing tablet from a nearby table and, with Lucas dictating, Vandermeer wrote
down "almost the same thing as that card had on it." He-'gave it to Lucas and,
some days later, signed the authorization card in evidence.
The specific items which Vandermeer recalled writing on the slip of paper,
including the name. of. the Union, his own name and address and, especially, the
reference to the "department" convince me, and I find, that Lucas dictated the con-
tents of the card and that Vandermeer wrote them on the tablet paper, signing his
name. There is nothing in the record to indicate that Lucas; in using the word
"vote" on this occasion, meant it as anything more than a synonym for "designate."
Accordingly, I find that on February 9 Vandermeer adequately designated the
Union as his bargaining representative.
.Darryl R. Yost: Respondent contends that this employee's card should be con-
sidered invalid because: -
(a) "the union solicitor or organizer misrepresented the purpose of the
card," -
(b) "Yost was not told that the card was in effect an. irrevocable act
designating the Union," and
(c) "his testimony indicates that he did not have that in mind when he
signed the card."
Yost testified that he was given the card by George T. Brossman, who said it
was "for the Union"; that he read the card, filled it out, and signed it. Yost also
testified that Brossman said that, with a certain percentage of cards, there could be
an election.
As to (a): Assuming that this contention is based upon,the last statement of
Brossman, it is obvious that it falls far short of establishing that Yost was thereby
induced to sign the card upon the representation that it was only to obtain an
election."
As to (b): This contention is frivolous: the language of the card, which Yost
testified that he read, is simple and unambiguous and there is nothing in the record
to show that Yost was incapable of understanding it.
As to (c) : This contention has no merit. It is well established that "subjective
evidence as to the intent of the signer is, irrelevant.12 -
Robert E. D•egle,: Respondent contends that the card of this employee is invalid
because: a -
(a) it was not dated by him and be was not certain of the date when he
signed it; •
(b) he was only 18 years old and "obviously inexperienced in such
matters";
(c) he did not read the card; and
(d) he was promised that he would "get more money" if the Union came
in.
Degler testified that he received the card from Wike, who said "it was for the
Union to come in"; that he filled in everything except the date and handed it back
to Wike, the entire transaction taking about 2 minutes. -
As to (a): Wike testified that he distributed and collected the cards on Febru-
ary 9 and 10, delivering all of them to Sarno late on the 10th. The record ade-
quately shows, therefore, that Degler signed the card no later than the 10th and
Respondent's contention has no merit.13 -
As to (b): This contention concerning Degler's youth and inexperience has no
basis in the record. It is, moreover,, negatived by the fact (upon which Respond-
u Compare: Cumberland Shoe Corp., supra, and other cases cited in footnote 8.
'- Bauer Welding A Metal Fabricators, Inc., 154 NLRB 954.
13 DuBois Pence f Garden Co ., Inc., supra -
GRIFFITH LADDER CORPORATION, 183
ent's contention (d) is based ) that Degler testified it'-was after Wike's comment
that union representation would result in increased wages that he signed the card.
As to (c) : While Degler testified that he did not read the card, he also testi-
fied that he filled in the.blanks and signed it. The essence of'the card is stated so
clearly `and so prominently that it would require a strong and conscious effort to
avoid reading its , "title .". It may well be that Degler had no recollection of con-
sciously reading the four lines of small type and this was the basis for his testi-
mony that he did not "read" the card. In any event, Wike properly characterized
the function of the card and, I find, that Degler understood him. -, Accordingly, this
contention is rejected. - "
As to (d): This contention is comprehensible only as a claim that Wike's
"promise" that union representation would result in' higher wages was a misrepre-
sentation sufficient to invalidate the card: Not only does the evidence fail to sup-
port such characterization of Wike's statement but the surrounding circumstances
do not disclose any basis for an assumption that Degler relied upon it in signing
the card. His testimony convinces me that -he knew what he was doing and I find
no merit in this contention. '
From the foregoing it follows, and I find, that on February 10 this employee
validly designated the Union as his collective-bargaining representative.
Austin W. Potts: Respondent contends that this employee's card should be con-
sidered invalid because he testified that Wike, in giving-him the authorization card
to sign, said that: "the employees expected to have an election and try to have a
union in the 'shop." - - . -
The foregoing, however, is only one of the several arrangements of words in
which Potts attempted to reproduce Wike's statement to him. Potts''other versions
of Wike's statement do.not present so close a relationship between the two elements
as does the one quoted by Respondent." - Most important to be noted, moreover, is
the fact that at no time did' Potts state that Wike told him that the only purpose
of the card was'-to get an election and he specifically testified that Wike never did
make that statement but that he-"took that for granted." - This being so, Wike's
statement that there could or would be an election at some time in the future does
not ' constitute ' a representation that card was only. for the'-purpose of ' securing an
election and, therefore; this statement cannot serve to invalidate this card.14
As Respondent points out, Potts was a mature person and he testified that he
had worked in several steel mills where he was a member of the union. Although
not specifically' asked by 'either counsel whether he read the, card when he signed
it, Respondent's counsel did ask him whether he had "ever seen an authorization
card like the one you-signed here" and he said he did not remember. This answer
necessarily implies knowledge of the contents -of this card and -from it, as well as
from the care and deliberation with which Potts testified, I find that he did read
the card. His. private ,thoughts at"the time concerning the effect of signing "can-
not operate to overcome 'the effect -of his overt' action in having signed " 15-par-
ticularly where; as here, the wording on the card signed is so clear and unambig-
uous.- I find, therefore, that on February 10 Potts validly designated the Union,as
his collective-bargaining representative. ' a '
Harvey W: Metz. Respondent contends that the card of this employee is invalid
because, according to his testimony, he did not date it and he could not remember
the date on which he signed it. -
Metz, a truckdriver, testified that late one evening he found a number of `the
Union's authorization cards on' a desk near the.loading platform. He picked one
up, read it, signed it and replaced it on the desk.. The card bearing his signature
was one of those which, Wike testified, he'gave to Nagle and Sarno on the eve-
ning of February 10. Sarno testified that, after he received the cards, he mailed
out Union 'literature to those persons whose names appeared on them. Metz
testified that he -received such literature after he signed the; card. The record,
therefore, adequately establishes that Metz signed his card prior to February 11
and Respondent's contention must be, rejected.16 - -
John W. Mickshaw: Respondent contends that the card of this employee is
invalid because he "asked Roy Barnes (the plant manager) if he could get back
the card which he had signed." - ' - 1. '
1s Cumberland Shoe Corporation , supra, and other cases cited in footnote S.
15 Consolidated Machine Tool Corporation , 67 NLRB 737, 739, enfd. 163 F.2d 376 (C.A.
2), cert. denied 332 U.S. 824; Bauer Welding & Metal Fabricators , Inc., supra.
10 See P.B. & S . Chemical Company , 148 NLRB 152, 177
184 DECISIONS-OF' NATIONAL,-LABOR RELATIONS BOARD
Mickshaw-testified that on February 9 _he went to Wilke and asked for a, union
authorization card: alike gave, it to -him, he filled it out and signed it. This
card; was one of those in Wike's, possession on February 10. Some time after-
ward,' but prior to March 3, Mickshaw walked up to Plant Manager Barnes and
asked.:him whether he, Mickshaw, could get back the authorization card which
he had signed. ; Barnes, testifying to the -same conversation, said that Mickshaw
made the statement that he wanted his card back and asked him if that mere
possible; that he told Mickshaw he-did not know. The matter rested there until
the occurrences of March 3, .described below.
There can be no quarrel with Respondent's statement that union authorization
cards may be revoked and the-cases cited support the statement. Granting, more-
over, that such revocation does not require. any particular formality 17 it is
nevertheless necessary - that the person desiring to revoke his previously given
authorization take some affirmative step more substantial than a belated expres-
sion of change of mind to a stranger to the original transaction.ls As the record
stands, Mickshaw's position amounted to no more than a mere afterthought,
insufficient to nullify his outstanding designation of the Union as his collective-
bargaining representative.19
Glenn M. Leymeister: Respondent contends that the card of this employee should
be considered invalid because:
(a) he was only 17 years old and had no experience in union matters;
(b) according to his testimony, he did not read the card he signed;
(c) Wike, who gave him the card, "mentioned" that the Union would bring
a wage increase; and -
(d) he had misconceptions about the card, as evidenced by his statement to
Reeser that there would be an election "a few weeks after the majority of the
men signed up" and that the cards would be "kept secret."
Leymeister testified that, on February 9, Wike gave him a card, saying "some-
thing about a union"; that he filled out the entire card, signed it, and gave it back
to Wike.
As to (a) : The employee's age I find irrelevant and his alleged "lack of experi-
ence" both irrelevant and unsupported in the record. Accordingly, this conten-
tion is rejected.
As to (b): The prominence of the statement on the card concerning its
function convinces me that Leymeister, in the process of filling the blanks and
signing it, became adequately informed of the purpose of the card, notwith-
standing his testimony, on cross-examination, that he did not "read" it. More-
over, in his pretrial statement, dated March 3, which was introduced into evi-
dence by Respondent, he states that he "signed a card for the Aluminum Workers"
as well as three times referring to the card as a "union card." It is also noteworthy
that, in giving a card to Reeser, Leymeister also referred to it as a "union card."
As to (c) and (d): These contentions rest on foundations that are in-
sufficient, both factually and legally. When asked, on cross-examination, whether
Wike said anything about a wage increase, Leymeister answered, "I believe he
said we'd get a slight wage increase. I'm not sure," and when asked whether
Wike said anything about "using the cards to get an election," answered, "I don't
remember." Nor does Reeser's testimony concerning Leymeister's statements to
him carry any indication that Leymeister signed his own card only for the purpose
of obtaining an election. I see no merit in Respondent's contentions (c) and
(d) but, on the contrary, I find that Leymeister's card is properly to be considered
as a valid designation of the Union as his collective-bargaining representative.
In addition to its contentions concerning the cards of- the specific employees,
discussed above, Respondent contends that all the cards were obtained by mis-
representation concerning their nature and purpose,' as evidenced by the contents
of the union circulars subsequently sent to those who signed.
17 See N.L.R.B. V. Reeder Motor Co., 202 F.2d 802, 804 (CA. 6), setting aside 96
NLRB 831.
's Compare TMT Trailer Ferry, Inc., 152 NLRB 1495; Trend Mills, Inc., 154 NLRB
143; S. E. Nichols Company, 156 NLRB 1201
19 See* Jas. H. Matthews et Co. v. N.L R.B , 354 F 2d 432 (C.A. 8), enfg. 149 NLRB
161; N.L.R.B. v. Sunshine Mining Co., 110 F 2d 780, 790 (CA. 9), enfg. 7 NLRB 1252;
Consolidated Machine Tool Corporation, supra; Bauer Welding & Metal Fabricators, Inc.,
supra.
GRIFFITH LADDER CORPORATION 185
It is clear from the. record that all the , literature that - the Union mailed 'out
went to those who had already - sighed - cards and delivered them to the Union's
representative . Nothing contained in.such literature , therefore , 'could have had
any effect in persuading any of the. employees to designate the Union as their
collective-bargaining agent.
From all of the foregoing it follows, and I find , that on February 12, when
Respondent received the Union 's request for recognition , the Union represented
a majority of Respondent 's employees in the unit described in the complaint,
which I find to be an appropriate one for the purpose,of collective bargaining .20
2. The polling of the employees and refusal to recognize the Union
According to the testimony of Vice President Choiriere , immediately upon
receiving the, Union 's request for recognition on Friday , February 12, he and
Plant Manager Barnes "went around to about 35 or 40 of the employees and
asked them how they felt, whether they wanted or didn 't want a union." He
also testified that he made it clear to the employees that they were not compelled
to answer and that some refused "but not many." Of the 28 employees 21 called
by the General Counsel to prove their cards, .22 of them were questioned con-
cerning the poll conducted by Barnes and Choiniere and 20 testified , that they
were - interviewed .- Only one employee , Frank Kimmel , testified that . Choiniere
told him that he was not required to answer and another , Gerald Vandermeer,
testified that Barnes, after asking him whether he had signed a card and receiving
a negative answer , said that it did not matter what his answer was.
Out of the 20 who testified that they were interviewed , three ( Edwards,
Schappell, and Steffie ) answered that they were for the Union, two (Fisher and
Vandermeer ) said they were for the Union or anything that would mean more
money for them, and one ( Brossman )- simply answered that he had signed a
union card . Six employees , therefore , fairly indicated their support of the Union.
In opposition to these six , three employees ( Auman , Kunkel, and Glenn
Leymeister )- told Barnes and Choiniere that they were against the Union and one
(Lucas ) said he was satisfied with the, way things were in the plant, making four
employees who indicated that they were ' unfavorable:
Of the balance of the employees - whose testimony disclosed their answer to the
poll, three ( Kimmel , Yost, and Gene Leymeister ) said they were undecided, one
(1P.otts ) said he did not know what to say , and two ( Reber and Wenrich) deliber-;
ately gave vague, and evasive answers. No questions were asked of the remaining
four (Reeser, Schnoke , Richard Degler , and Mickshaw ), by either the General
Counsel or Respondent, to determine - the answer they gave during this poll.
21 The Union 's letter of February 11 'demands that Respondent recognize it as the
representative of "the hourly employees at your plant ." This description , strictly con-
strued , would include the office employees , since they are paid on an hourly basis In
the petition for an election, however, which it filed February 18, the Union restricted its
interest to the production and maintenance ' employees , including, truclidrivers , but ex-
cluded the office clerical employees as well as technical , supervisory and protective em-
ployees. ' The consent agreement , the notice of election and the complaint herein draw
the same line of demarcation and the allegation In the complaint , specifically describing
the unit alleging it to be an appropriate one, is not denied Moreover , the record shows
that Respondent was not misled , by the terms of the demand , as to the employees for
whom the Union sought recognition since, In its poll of the employees , the office clerical
employees were not interviewed . Accordingly , I find that the variance between the unit
set forth in the demand and that alleged in -the complaint is insubstantial and should be
disregarded,(see The Lone Star Company , 149 NLRB 688 , and- cases cited at pp . 700-703.
See also' Gotham Shoe Manufacturing Co , 149 NLRB 862,- Piggly Wvgaiy 1/i Dorado Co ,
154 NLRB 445; Jem Mfg, Inc., 156 NLRB 643, and Dixie Color Printing Corp, 156
NLRB 1431).
2 'Employee Koch , whose card was the 29th but was not counted, also testified con-
cerning the polling of employees, stating that he had a single conversation with Choiniere
after he signed the card and before he left Respondent 's employ. It is clear from the
record, however , that the polling occurred between the morning of February 12, when
Respondent received the Union 's letter , and February 15, when it wrote, through counsel,
refusing recognition . The General Counsel, after inspecting Respondent 's records, con-
ceded that Koch was not in Respondent 's employ after - February 9, until the 19th. Ac-
cordingly , Koch's testimony has not been considered in connection with this poll
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crediting, as I do, the detailed testimony of the several employees who testified
to their own conversations with Barnes and. Choiniere rather than the general and
oonclusionary, testimony of Respondent's_representatives,22 the record shows, that
the poll covered 20 of the 48 employees concerned; that 4 of, these indicated
that they opposed the Union, that 6 indicated that they favored•it, and that 10 gave
either equivocal answers or none at all. • ' '
On the basis of the foregoing,analysis, three questions are presented for- decision
concerning the poll:
(1) Was the poll, in itself, violative of Section 8(a)(1) of the Act?
(2) Did Respondent, during the poll, otherwise violate Section 8(a)(1) of
the Act? „
(3) Did the information obtained by Respondent through the poll support
the "good faith 'doubt" concernmg the representative status-of the-,Union
which Respondent 'claimed- as justification for its refusal to barg"aih 'with the
Union?
The Board's rule in permitting, systematic interrogation-whether plantwide, to
determine the validity of -a union's claim that it represents a majority, or selective,
to prepare for trial-is set -forth in Johnnie's' Poultry Co., 146 NLRB 770 23 at page
775, and requires "specific safeguards designed to minimize the coercive impact of
such employer interrogation." To avail himself of this privilege, the employer
must: "
(a) communicate to the employee the purpose of the questioning;
(b) assure him 'that no reprisal will take-place;
(c) obtain his participation on a'voluntary basis;
(d) put his questions in a context free from hostility to union organization;
(e) put questions not of themselves-coercive in nature; -
(f) restrict his questions to the necessities of the legitimate purpose of the
interrogation.
Tested by these criteria, it is obvious that Respondent's interrogation with
respect to each employee violated one or more of them: To start with, Barnes
and Choiniere, according to their own testimony, opened the conversation in each
instance by saying that "there's a rumor going around that there are some
employees in here who, want a union and we'd like to find out how you feel
about it Not only did they fail to state that recognition had been
requested by the Union on the basis of a claim.of majority representation and
explain that the purpose of their questioning was to determine the validity of
that claim, but the temper of the background they set by their very words was,
I find, antagonistic and, therefore, coercive. In only a single instance did
Choiniere inform an employee (Kimmel) that he did not have to talk with him
and in only one interview did Barnes give even a limited assurance against reprisal
by saying he did not care whether the employee (Vandermeer) had or had not
signed a card. , I -
Respondent conducted the poll, I find, in a manner tending to coerce its
employees in their self-organizational activities. Granting that one of its pur-
poses in conducting the poll was the legitimate one of determining whether the
Union did, as it claimed, represent a majority of the employees, Respondent's
failure to observe, either in letter or spirit, the prescribed safeguards necessary
to assure that its pursuit of a justifiable object would' not coercively interfere
with the employees' rights, makes its systematic -interrogation an unfair labor
practice proscribed by Section 8(a)(1) of the Act. -
Both Fisher and Brossman, whose testimony I credit, stated that in their inter-
views Choiniere asked them from whom "they 'had' obtained the union cards
which they signed and Fisher testified that he was asked 'who was the "instigator
of this union talk." Moreover, Barnes himself testified that, in interviewing Wike,
22 Both Barnes and Chointere testified that they made no notes of their poll of 40 em-
ployees but Barnes testified that "34 or 35" opposed the Union. Choiniere testified that
they took no count but that he "Just decided " that the employees were not in favor of
the Union.
Although its petition for enforcement ' was denied in' 344 F 2d 617 (C A. 8), the
Board, in T. J Fleming Company, 154 NLRB 800, Plains Cooperative Oil Mall, 154 NLRB
1003, and Montgomery Ward & Co.; Incorporated, 155 NLRB 482, has clearly' indicated
that it adheres to the rule.
GRIFFITH `LADDER ^ CORPORATION 187
he not only made ' the `routine, statement 1that "there's a rumor going"afbund that
some-people' want ''a union" but that he went on to say "there' s a rumor goijig,
around, that has come back to me, that',you're the fellow who is starting if."
The -direct' questioning of 'Fisher aud'"Brossman concerning the 'source of the
union cards' could serve'-no legitimate `purpose, of Respondent and Choiniere's
use-of the ' pejorative word "instigator" -'conveyed an attitude of antagonism neces-
sarily coercive iii sits -effect. The aggressive 'accusationof Wike 'by Barnes' is also
coercive in its effect . Accordingly, I find that Respondent, in its interviews with
Fisher, Brossman, and Wike, violated -Section 8 (a)(1)'-6f the Act.
The above-described poll of employees,!albeit coercive and improper, provided
Respondent with only four expressions of-'opposition to the Union-out of the'20
shown to have been questioned. Moreover, the' circumstances surrounding -these
expressions of opposition would have given reasonable men cause for doubt as
to their absolute reliability. Since the "good faith doubt" that would justify
rejection of^ a union's request for recognition based upon a claim 'of majority
representation
requires more than employer's -mere assertion of it and more than proof
of the employer's subjective frame of mind .. . The applicable test .-. .
is whether or not the objective facts furnish a "reasonable basis" for the
asserted doubt .. 24
it seems clear to me, and I find, that Respondent's rejection both of the Union's
request for recognition and of its offer to meet to substantiate its claim of
majority representation was not based upon such good-faith doubt but upon a
desire to gain time to undermine the Union' s position.25 -
It has been established that the Union was the designated collective bargaining
representative of a majority of Respondent's employees in an appropriate unit
and that Respondent did not have a good-faith doubt concerning the Union's
status. Accordingly, Respondent was under a statutory duty to bargain with
the Union on and after February 12, and its refusal to do so has been, and is,
an unfair labor practice violative of'Section 8(a)(5) and (1) of the Act.
3. Other interference, restraint, and coercion
The petition was filed in the representation case on February 18 and, at a con-
ference held at the plant on March 3, Respondent and the Union signed the
stipulation for certification, agreeing that the election would be held on March 12.
After taking the poll described above and notifying the Union that Respondent
would not recognize it as the collective-bargaining representative of their
employees , Barnes and Choiniere continued to talk to the employees, admittedly
until March 3 and, I find despite their denials,26 down to the date of the election.27
Fourteen employees testified to conversations concerning the Union with
Barnes and Choiniere after the initial poll had been completed. Fisher, Lucas,
Killian, Kimmel, Long, Reber, Brossman, Robert Degler, and Steffie, I find, were
questioned concerning their own views and the views of their fellow employees
and they were asked to talk to other employees to persuade them to vote against
the Union..- Such conduct violates Section 8(a)(1) of the Act.28
Lucas testified that, although on February. 12 he had told Choiniere he was
"satisfied the way it is" at the plant, Choiniere thereafter engaged him in several
conversations during the following 21/2 weeks, repeatedly asking him whether he
had signed a union card. In one of these conversations, a day or two after the
poll, Choiniere told Lucas that the Union would be "no good for the plant,"
that they owed everybody money and that "you can't get blood out of a stone."
Choiniere also said that they could close down the "aluminum extrusion depart-
ment" and the "wooden extrusion department," filling orders by shipping ladders
Laystrom Manufacturing Co., 151 NLRB 1482.
25 Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F.2d 732 (C .A.D.C.).
m Their denials were mostly in general terms as contrasted with the specific statements
of the employees . Based upon this contrast, as well as their demeanor .while testifying,
I accept as credible the testimony of the'employees.
2' The parties stipulated at the hearing that the. evidence adduced by the General Coun-
sel in support of the allegations of. 8(a ) (1) violations be considered on, the Union's
objections to the election herein. •
28 Admiral-Semmes Hotel and Motor , Hotei, 154 NLRB 338; Opal Clifs•Food Center, 148
NLRB 301; Industrial Steel Products • Csmpany, -Ino., 143 NLRB 336, 346.. ,
188 DECISIONS OF NATIONAL -,LABOR RELATIONS BOARD
from the parent company 's plant - in,Boston . Choiniere also said that there would
be "a-load of aluminum" coming in but that he should not be alarmed ; -it.was
"just to make it look like they could close it down."
.Koch , whose , employment recommenced February 19, also testified that
Choiniere ; after asking him whether he had signed , a card and receiving an
affirmative answer , said that , if the Union .,came in , there was a good chance that
the -plant would close down and be used . as a warehouse and that he would not
mind going back to Massachusetts. - -
Despite Choiniere's temporary reassurance to Lucas concerning the specific
load of aluminum to be delivered , I find that his statements to Lucas and Koch
constituted threats of'plant closure if the Union should become the representative
of the employees and that such threats were violative of Section 8(a)(1) of
the Act.
A few days before the election, according to Schappell, who had told Choiniere
during the poll that he was for the Union, he was again approached by Barnes
and Choiniere and asked whether he still felt the same way. He said -that he
did and Choiniere answered that, if the Union came in "it wouldnt be as nice
working there" and that hours would be cut back to 40, eliminating the overtime
earnings then available. •
Wenrich testified that the day' before the election Choiniere told' him that
Respondent did not want a union in the plant and that "it wouldn't pay you"; that
if the Union came in, all overtime would be eliminated. Potts, who testified with
great care, could not recall Choiniere saying, in specific words, that overtime would
be abolished but he was definite that Choiniere emphasized the overtime that was
then available, saying the men "should be satisfied," and that his reaction was that
Choiniere was exerting pressure on him to vote against the Union.29
James Reber testified that, despite his indefinite answers during the poll, Choiniere
assumed that he was opposed to the Union; that about 2 weeks afterward, Choi-
niere again asked him his views about the Union, reminding him that Respondent
had always kept the men - on in slack seasons and had permitted them as much
overtime as they desired during the busy seasons. He suggested that Reber talk to
certain other employees "to persuade them to think differently about union matters."
On the day before the election, Reber also testified, he was in the office about a
shortage in his paycheck when Barnes asked him whether he had made up his mind
how he would. vote. the following day. Reber said he had not yet done so and
Barnes said it was "kind of late." This conversation was confirmed by Barnes.
Darryl Yost, who had made an equivocal answer to the poll, testified that, the
day before the election Choiniere stopped him and reminded him that the election
would be held•'on the following day. Choiniere gave it as his opinion that there
were 30 against the Union and only •9 for it. He continued, however, by saying
that, while in the past the men had been kept working during slack seasons, if the
Union came in "maybe there would be a layoff."
Respondent characterizes the foregoing as mere "predictions" not amounting
to threats and•argues that they are protected by Section 8(c) of the Act. The
borderline between such protected "predictions" and 'p'roscribed threats is not to be
found in the words actually used but 'in the context- in which they were uttered 30
Respondent's reference to N.L.R.B. v. J. Weingarten, Inc., 339 F.2d 498 (C.A. 5),
is inapposite because it fails to recognize as-the court did in the cited case, that
the presence or absence of a background of antiunion activity must he considered
in determining such questions. In this case, I find Barnes' and Choiniere's state-
ments were part of a sustained attack upon the Union's position, were made for
the purpose of exerting pressure on the employees to vote against the Union, and,
therefore, constituted restraint and coercion violative of Section 8(a)(1) of the Act 31
4. Requests for return of union cards
John Mickshaw, who had signed a union card but whose testimony concerning
the poll shows only that he had admitted to Barnes and Choiniere that he had heard
29 Although Potts could not recall that, Choiniere made the explicit statement that
overtime would be discontinued , the "impression" to which' he testified was the con-
clusion which he- drew - from Choiniere's words and was', therefore, admissible (See•
3 Wigmore Evidence, § 725-729.) Respondent's motion to strike this testimony is denied.
80 Daniel Construction Co. Inc. v. N.L .R.B., 341 F 2d 805 (C A" 4).
a Associated Naval 'Architects, Inc., 148 NLRB 1674 , 1676, enfd . 355 P .2d 788 (C.A. 4) ;
Louisiana Manufacturing Company, 152 NLRB 130,1 ; Mead's Marlcet, 148 NLRB 383:
GRIFFITH LADDER CORPORATION 189
about' the Union' s organizing effort, testified that shortly 'thereafter he went'to
Barnes and asked whether he could get his card back. Barnes said he did'-not
know and the matter rested there until March 3.
Gene Leymeister conceded that he, also, had talked with Barnes about' getting
his card back and his brother, Glenn, testified that he "might have said something"
to another employee on that subject, but not to Barnes or Choiniere.
'Richard Fisher also testified that on one occasion, -prior 'to March 3, Barnes
asked him whether he would take his card if he could get it back. Fisher answered
that he would take it but did not think Barnes could get it. '
During the poll, George Brossman had told Choiniere and Barnes that he had
signed a union card but had refused to disclose who had given it to him. A few
days later, Choiniere asked him whether he wanted to go to Pottsville and get his
card back. Brossman , although asking whether anyone else was going up for that
purpose, said that he did not wish to do so.32
Darryl Yost_ and Samuel Steffie, the other employees involved in this incident,
testified that they had never told anyone that they wanted to get back their union
authorization cards.
On March 3, representatives of the Union and Respondent) met with afield
examiner of the Board, in Respondent's office at the plant, to plan for further pro-
ceedings in the representation case. During the first part of the conference both
Choiniere and Barnes, as well as 'Respondent's counsel, participated in the discus-
sion. Respondent's counsel asked the field examiner whether there were a suffi-
cient number of cards to justify an election and whether the cards were "current."
Both questions were affirmatively answered.
About 3:30 p.m. Respondent's counsel called for a recess and he retired to con-
sult with Barnes and Choimere. When the meeting resumed 10 or 15 minutes
later, Barnes did not return.
John Mickshaw testified that, shortly after 3:30 p.m. on the day the Board agent
was at the plant, Barnes came to him and asked him whether he still wanted his
card back. Mickshaw said he did and Barnes told him "there's a Government man
in the office. If you want to go in and try to get it back, you can go in."
Both Gene and Glenn Leymeister testified that, on the same day, Barnes came to
them and asked them whether they wanted their cards back; that if they did they
could go to the office and get them. They went to the office.
About 3:45 p.m., Darryl Yost, George Brossman, and Samuel Steffie were stand-
ing together when Barnes came to them and asked Brossman whether he wanted
his card back. Brossman answered that' he did and Barnes, addressing the three
of them, said that there was somebody in the office who had the cards and they
could go down and get them. After some hesitation, the three men went to the
office.
A few minutes later Barnes made the same statement to Richard Fisher, telling
him also that there were six men down there already.
The seven employees were gathered in the office when Mickshaw said to the
Board agent: "I came in to see if I could get this card back I signed for the
Union." The Board agent said that he could not give it to him and there then
followed some discussion about whether those who had signed cards were com-
mitted to voting for the Union. The Board agent assured them that they could
vote as they wished. The men then left
Barnes' testimony confirmed the events of March 3, as stated above, as well 'as
his earlier conversations with employees on'this subject. He claimed that he had
been informed by John Reedy, a maintenance man, that Mickshaw and "several
other people" had told him they would like to get their cards back.
Mickshaw estimated the date when he put his question to Barnes about getting
his card back as something more than "a few days" prior to March 3 and testified
that "it might'have been `a couple of weeks." He also testified that, when he was
first questioned by Barnes and Choiniere and admitted having heard "rumors" about
the Union trying to get in, Choiniere only said that he wished he would not vote for
it. From the foregoing,, l conclude that Micksaw's conversation with Barnes con-
cerning Mickshaw's getting his card back must have occurred after Respondent's
poll of employees; which began on February 12 immediately after receipt of the
Union's demand letter.33 This poll, I have found, constituted interference,
82 Choiniere 's denial of this conversation is rejected.' '
'This conclusion is reinforced by Barnes '' failur̀e; in testifying about either Mickshaw's
question or Reedy's report, to state that this was the first ' heThad heard about the
Union's
activities since, if such were the fact, it would have been natural for him to mention it.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restraint, and coercion violative of Section 8(a)(1) of the Act, and Mickshaw,
Glenn Leymeister, Gene Leymeister, and Fisher had been improperly interrogated
along with the other employees. Accordingly, their subsequent expressions of will-
ingness or desire to obtain the return of their cards were inspired-at least in
part-by such coercive interrogation and Respondent may not predicate a defense
thereon.34 Moreover, no such question can even be raised with respect to Bross-
man, Stef6e, and Yost, since their testimony that they never said they wanted their
cards back is not controverted.
Barnes' admitted efforts to persuade these employees to obtain the return of their
union cards was, therefore, an obvious attempt to undermine the majority status of
the Union; it unlawfully interfered with self-organizational rights of the employees
and violated Section 8(a)(1) of the Act.35
IV. THE OBJECTIONS TO THE ELECTION
The conduct detailed above, other than Respondent's original poll of employees
and its refusal to recognize the Union, occurred subsequent to the filing of the
representation petition and prior to the holding of the election. The Union's objec-
tions to the elections are based upon such conduct and, under the stipulation of the
parties, the evidence of the General Counsel in the unfair labor practice proceeding
has been considered in support of the objections. This conduct, as set forth above,
has been found violative of Section 8(a)(1) of the Act. As the Board stated in
Dal-Tex Optical Company, Inc. (137 NLRB 1782 1785) :
Conduct violative of Section 8(a)(1) is, a foitiori, conduct which interferes
with a free and untrammeled choice in an election.36
Accordingly, it will be recommended that the election of March 12 be set aside.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations described in section I, above, have a close, intimate and
substantial relation to trade, traffic and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged and is engaging in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action, including the posting of an appropriate notice, to effectuate the
policies of the Act.
Having found the Union is the designated representative of Respondent's
employees in an appropriate unit and that Respondent has engaged, and is engag-
ing, in an unfair labor practice by refusing to bargain collectively with it, it will
be recommended that Respondent cease and desist from refusing so to bargain;
that it shall, upon request, so bargain and, if an agreement is reached, embody
such agreement in a signed contract.
Having found that Respondent, by its unfair labor practices, interfered with and
made impossible the expression by its employees of their free and untrammeled
choice in the election held March 12, 1965, it will be recommended that the elec-
tion be set aside and that, in view of the order to be recommended and the Board's
procedures, all proceedings in Case 4-RC-6281 be vacated and the petition
dismissed.37
In view of the nature and extent of the unfair labor practices found to have
been engaged in by Respondent, which indicate its determination to interfere
aggressively with its employees rights of self-organization and its rejection of the
principle of collective bargaining , I shall recommend a broad cease-and-desist order
herein.38
84 See Franks Bros . Company v. N.L.R.B., 321 U.S. 702.
35 The (fit eat Atlantic B Pacific Tea Company, Inc, 144 NLRB 1571 ; Primrose Super
Market of Salem, Inc., 148 NLRB 610; Capital Distributing Co., 147 NLRB 1138; Murray
Envelope Corporation of Mis8i88ippi , 130 NLRB 1574, 1577.
88 See also : Leas h 11feVitty, Incorporated , 155 NLRB 389.
87 Irving Air Chute Company , Inc., 149 NLRB 627.
39 See Wabana, Inc., 146 NLRB 1162, 1186.
GRIFFITH LADDER CORPORATION 191
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Griffith Ladder Corporation is an employer engaged in commerce within the
meaning of Section 2(6) and ( 7) of the Act.
2. Aluminum Workers International Union, AFL-CIO, is a labor organization
within the meaning of Section 2 ( 5) of the Act.
3. By coercively interrogating its employees , by threatening to discontinue benefits
and terminate its operations if its employees should designate the said labor
organization as their collective -bargaining representative by attempting to persuade
its employees to withdraw their designations of the said labor organization as their
collective -bargaining representative , and by requesting its employees to persuade
other employees to withdraw their support of said labor organization , said employer
has interfered with, restrained , and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
4. The employees of the said employer in the following described unit constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act- all production and maintenance employees , including
truckdrivers , at the Auburn , Pennsylvania , plant, exclusive of office clerical employ-
ees, guards , watchmen and supervisors as defined in the Act.
5. At all times since February 11, 1965, Aluminum Workers International
Union, AFL-CIO, has been the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining with respect to rates of
pay, wages , hours of employment , and other terms and conditions of employment.
6. By refusing on February 15, 1965, and thereafter , to bargain collectively with
the aforesaid labor organization , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a)(5) and ( 1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
- RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entiie record in this case, it is recommended that Griffith Ladder Corporation,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning their membership in or
activities on behalf of Aluminum Workers International Union, AFL-CIO, or any
other labor organization ; interrogating its employees concerning the membership
or activities of other employees in said, or any other , labor organization ; request-
ing its employees to withdraw , or induce or persuade other employees to withdraw,
their membership or support of said, or any other ,- labor organization;
(b) Threatening to withdraw existing benefits , eliminate overtime work, lay off
employees , or discontinue the operation of all or part of its business if its employees
designate the said, or any other , labor organization as their representative for the
purpose of collective bargaining;
(c) In any other manner interfering with , restraining, or coercing its employees
in the exercise of their rights of self -organization , to form labor organizations, to
join or assist Aluminum Workers International Union , AFL-CIO, or any other
labor organization , to-bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective bar-
gaining and other mutual aid or protection , or to refrain from any and all such
activities, except to the extent that such right may be affected by an agreement
requiring membership, in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the National Labor Relations Act, as amended.
(d) Refusing, upon request, to bargain with the said labor organization as the
collective bargaining representative of its employees in the following described
unit- all production and maintenance employees , including truckdrivers, at its
Auburn, Pennsylvania , plant, exclusive of office clerical employees, guards, watch-
men and supervisors as defined in the Act.
2. Take the following -affirmative action to effectuate the policies of the Act:
(a) Upon request , bargain with Aluminum Workers International Union, AFL-
CIO, as the collective-bargaining representative of its employees in the unit
192 DECISIONS -OF NATIONAL LABOR - RELATIONS BOARD
described above with 'respect to rates of pay, hours .,of employment, and, other
terms and conditions of employment and, if an agreement is reached, embody such
agreement in a signed contract. , , ,
(b) Post at its plant at Auburn, Pennsylvania, copies of the attached notice
marked' "Appendix." 39 Copies of said notice, to be furnished by the Regional
Director for Region 4, shall, after being signed by its representative, be posted and
maintained by it for 60 consecutive days -thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall' be taken to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 4, in writing, within 20 days from
receipt of this Decision, what steps it has taken to comply herewith."
IT IS .FURTHER RECOMMENDED that the election held among the employees of
Griffith Ladder Corporation March 12, 1965, be set aside, that all proceedings in
Case 4-RC-6281 be vacated and that the petition therein be dismissed.
30 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 Appeals Enforcing an Order" shall be substituted for the words "Decision
and Order "
4° In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 4, in writing, within
10 days from the date of this Order, what steps it has taken to comply herewith,"
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate our employees concerning their
membership in or activities on behalf of Aluminum Workers International
Union, AFL-CIO, or any other labor organization, or concerning similar
membership or activities of any other employee.
WE WILL NOT attempt to persuade any of our employees to withdraw their
authorizations or designations of the said labor organization as their
collective-bargaining representative and WE WILL NOT request any of our
employees to persuade other employees to withdraw their support of said
labor organization.
WE WILL NOT threaten our employees with layoffs or loss of overtime or
other benefits and WE WILL NOT threaten to terminate the operations of our
plaint or any part of 'such operations if our employees designate the above-
named labor organization, or any other labor organization, as their repre-
sentative for the purpose of collective bargaining.
WE WILL NOT refuse to bargain collectively with Aluminum Workers Inter-
national Union, AFL-CIO, as the exclusive representative of our employees
in the following appropriate unit: '
All production and maintenance employees, including truckdrivers,
employed at our Auburn, Pennsylvania, plant, excluding all office
clerical employees, guards, watchmen, and, supervisors as defined in the
Act. _
WE WILL, upon request, bargain -collectively with Aluminum Workers
International Union, AFL-CIO, as the exclusive bargaining representative
of our employees in the said appropriate unit with respect of pay, wages,
hours of employment, and other terms and conditions of employment, and,
if an agreement is reached, we will embody such agreement in a signed
contract.
WE WILL NOT in any other manner interfere with', restrain, or coerce our
employees in the exercise of their rights -of self-organization, to form labor
organizations, • to join or assist Aluminum Workers International Union,
AFL-CIO, or any other labor organization, to bargain collectively through
UNITED PAPERMAKERS & PAPERWORKERS, LOCAL NO. 321 193
representatives of their own - choosing , to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities , except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a).(3)
of the National Labor Relations Act, as amended.
All our employees are free to become and remain, or to refrain from becoming
or remaining , members of Aluminum Workers International Union, AFL-CIO,
or any other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a)(3) of the National
Labor Relations Act, as amended.
GRIFFITH LADDER CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 1700
Bankers Security Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania
19107, Telephone S97-7617.
United Paperntakers and Paperworkers , Local No. 321, AFL-CIO
(Philip Carey Mfg. Company) and Richard Brady. Case
9-CB-1253. June 13,1966
DECISION AND ORDER
On March 4, 1966, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Therefore, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to Section 3(b)"of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a
three-member panel [Chairman McCulloch and Members Fanning
and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and the brief, and the
entire record in this case, and hereby adopts' the findings, conclu-
sions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
159 NLRB No. 27.
243-084-67-vol. 159-14