Hercules Packing Corp.

National Labor Relations Board - Board Decisions

Mar 7, 1967

163 N.L.R.B. 264 (N.L.R.B. 1967)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones a collective-bargaining agreement (Joint Exhibit 1)
which contained the following provision:
3.02 NEW EMPLOYEE:
(a) It is mutually agreed that the Company shall not
be hampered in the selection of new employees.
(b) New employees shall be on probation for a period
of 120 days and, if retained, their seniority shall start
with the date of the commencement of the 120-day
probationary period. The probationary period may be
extended beyond 120 days by mutual agreement
between the Company and the Union.
(c) Should the Company release or dismiss a new
employee within the probationary period, such
release shall not be subject to review through the
grievance procedure.
During his employment with the Water Company Jones
did not join the Union nor did he engage in either union or
antiunion activity. In July, Jones was promoted to the
position of utility man. This promotion occurred when a
vacancy arose and Jones, pursuant to section 319(f)(2) of
the collective-bargaining contract, bid for the job. Jones
was the only bidder for the job of utility man and was given
the job. Tuesday, August 2, was a general primary election
day in Missouri. Between 9 and 9:30 a.m. on that day
Jones asked his foreman, George W. Daffron, if he could
leave about one-half hour early (quitting time was
4:30 p.m.) to vote. Daffron gave him the permission. Jones
did not, however, leave the plant property until
approximately 4:20 p.m. The next day Daniel F. Moroney,
superintendent of the Water Company's plants, advised
Daffron that he had decided not to qualify Jones at the end
of his probationary period and Jones was given notice of
termination on Friday, August 5, the end of the pay period
and also payday.
It is the contention of the General Counsel that Jones
was discharged for asserting his right to have time off to
vote under the terms of the contract between the Water
Company and the Union. This contract contains the
following clause:
3107 JURY OR ELECTION DUTY (b):
Any person entitled to vote at any election held
within this State, or any primary election held in
preparation for such election, shall on the day of such
election, be entitled to absent himself from any
services or employment in which he is then engaged
or employed, for a period of three hours between the
time of opening and the time of closing the polls for
the purpose of voting; and any absence for such
purpose shall not be sufficient reason for the
discharge of or the threat to discharge any such
person from such services or employment; and such
employee, if he votes shall not, because of so
absenting himself, be liable to any penalty, nor shall
any deduction be made on account of such absence
from his usual salary or wages; provided, however,
that request shall be made for such leave of absence
prior to the day of election, and provided further, that
this section shall not apply to a voter on the day of
election if there be three successive hours, while the
polls are open , in which he is not in the service of his
employer. The employer may specify any three hours
between the time of opening and the time of closing
the polls during which such employee may absent
himself as aforesaid.
The General Counsel and Jones admit that he did not
make any written request on the day preceding the
election as required by the contract.2
Respondent offered the testimony of Superintendent
Moroney to the effect that the decision to discharge Jones
had been made by him prior to the request made by Jones
for time off to vote and had been based on reports received
by him from Jones' supervisors, Henry Curtis Ray (when
Jones was a groundsman), George Daffron (when Jones
was a utility man), and from Arthur M. Tate, the overall
supervisor of maintenance. I find all four witnesses
credible, and I particularly accept Moroney's testimony
that the decision not to qualify Jones had been made prior
to August 2 although it was not communicated to Daffron
until August 3.
B. Conclusions
The General Counsel's theory of the case is precise, i.e.,
that Respondent violated its contract with the Union by
discharging Jones for exercising his right to take time to
vote. The record is clear that Jones did not make any
request in writing on the day preceding the election for
time to vote as required by the contract. Since he was,
however, granted time to vote, it is assumed that this
condition was waived by his employer. I do not find that he
was discharged for exercising this right. He was absent
only for 10 minutes prior to his ordinary quitting time and
the testimony establishes that his foremen were not
enthusiastic about his job performance. I credit the
testimony of Moroney that he had decided not to qualify
Jones prior to August 2. If so, then it cannot be held that
Jones was discharged for seeking time to vote despite the
testimony in the record that Jones' foreman was
displeased at the request. It is also a matter of record that
Respondent had consistently abided by its contractual
obligations in this respect.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety.
s Respondent has a written form for employees to fill out for
voting time (Resp. Exh. 1).
Hercules Packing Corporation and Textile
Workers Union of America, AFL-CIO. Case
3-CA-2759.
March 7,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On July 13, 1966, Trial Examiner James V.
Constantine issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged 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 certain affirmative action,
163 NLRB No. 35
HERCULES PACKING CORP.
as set forth in the attached Trial Examiner's
Decision . The Trial Examiner further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint, and
recommended that those allegations be dismissed.
Thereafter , the Respondent filed exceptions to the
Decision and a brief in support thereof . The General
Counsel also filed a brief in support of limited
exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
entire record in this case , including the Trial
Examiner 's Decision , the exceptions , and briefs, and
hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner to the
extent consistent herewith.
The Trial Examiner found that the Respondent
violated Section 8(a)(1) and (5) of the Act by refusing
to recognize and bargain with the Union on the basis
of the Union's showing of a majority of cards. In
reaching this conclusion , the Trial Examiner was of
the view that the Respondent had the burden, which
it had not satisfied , of coming forward with proof
that it had a substantial and reasonable ground for
doubting the validity of the Union 's majority
showing. We do not agree that the burden thus lay
with the Respondent to support its assertion of a
good -faith doubt of the Union ' s majority status.
Rather , the burden is upon the General Counsel to
establish that the employer in bad faith declines to
recognize and bargain with the Union.' Upon
consideration of the entire record in this case, we
find that the General Counsel has not sustained his
burden.
The record , as more fully discussed by the Trial
Examiner , shows that on the morning of
September 2, 1965, James E. Ryan, an International
representative of the Union, accompanied by Union
Vice President Garnold Richards , called on Donald
Rueger , Respondent's president . Ryan informed
Rueger that "I'm here to make a demand upon you
and to inform you that the Textile Workers of
America represent a majority of your employees and
we want to be recognized as the collective-
bargaining agent for the production and
maintenance employees ." Ryan was holding the
authorization cards in his hand , and told Rueger that
they were "willing to submit proof" and that they
I See John P Serpa, 155 NLRB 99 (1965)
2 The election, which was held on September 16, resulted in 22
votes for and 53 votes against the Union Upon objections to the
election filed by the Union, the Board found that certain
statements in the speech exceeded the permissible bounds of
265
had the evidence with them if he cared to look at it.
Rueger replied, "You say you represent a majority of
the people. Well, I have heard that before. And
apparently it wasn't true then and I am not sure that
it is true now." Although refusing Ryan's demand,
Rueger referred him to Respondent's counsel,
Dwight Campbell, Jr.
Later that morning Campbell telephoned Ryan.
During their conversation, Campbell alluded to
Ryan's earlier display of authorization cards. Ryan
commented that he was repeating his demand and
offer to submit proof to Campbell, who replied that
he did not believe in card counts because something
might later develop to "embarrass us." However,
Campbell asked Ryan to file a representation
petition and said the Respondent would consent to a
quick election. Pursuant to this discussion and on
the same day, the Union filed its representation
petition in Case 3-RC-3740. At a meeting on
September 7, 1965, it was agreed by the parties, as
part of a stipulation for consent election, that an
election would be held on September 16.
On September 14, 2 days before the election, the
Respondent's president addressed the employees.
This speech contained some impermissible
statements which we find, as did the Trial Examiner,
were violative of Section 8(a)(1) of the Act.'
However, not every act of misconduct necessarily
vitiates a respondent's good faith in questioning a
union's majority status and requesting a Board
election.' Rather, the Board evaluates the facts of
each case to determine whether the General Counsel
has demonstrated that the particular conduct
justifies the inference that the employer acted in bad
faith.
On the record of the instant case, we are unable to
conclude that the Respondent acted in rejection of
the collective-bargaining principle or to gain time in
which to undermine the Union and dissipate its
purported majority. Since it thus appears that the
violations of the Act here found are not truly
inconsistent with a good-faith doubt that the Union
represented a majority of the employees, we are
unable to conclude that the Respondent's refusal to
bargain was unlawful. Accordingly, we shall dismiss
the complaint insofar as it alleges that the
Respondent violated Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
Hercules Packing Corporation, Alden, New York, its
campaign propaganda and ordered a new election However,
following the filing of the charge in this case, the Union withdrew
its petition
' Hammond & Irving, Incorporated, 154 NLRB 1071 Cf,
N L R.B v Flomattc Corporation, 347 F 2d 74,77-79 (C A 2)
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete paragraph 1(a) of the Trial Examiner's
Recommended Order, renumbering paragraphs 1(b)
and 1(c) as new paragraphs 1(a) and 1(b),
respectively.
2. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order, renumbering paragraphs 2(b)
and 2(c) as new paragraphs 2(a) and 2(b),
respectively.
3. Delete from the notice attached to the Trial
Examiner's Decision and marked "Appendix" the
first indented paragraph beginning with the words
WE WILL, upon request,. .."
Member Fanning, dissenting in part:
I agree with my colleagues that the Respondent
engaged in conduct in violation of Section 8(a)(1).
However, I would also find that this conduct of the
Respondent involving as it did threats of discharge
and loss of benefits not only prevented the holding of
a free election but also demonstrates that the
Respondent was not acting in good faith when it
questioned the Union's majority status. Accordingly,
I would find that the Respondent violated Section
8(a)(5) of the Act and issue the appropriate
bargaining order.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case , brought under Section 10(b) of
the National Labor Relations Act (29 U.S.C. 160(b)), herein
called the Act. It was generated by a charge filed on
September 27, 1965, by Textile Workers Union of
America, AFL-CIO, against Hercules Packing
Corporation. A complaint based on that charge issued on
March 30, 1966. In substance the complaint alleges that
Hercules Packing Corporation, herein also called the
Respondent or the Company, has committed unfair labor
practices encompassed by Section 8(a)(1) and (5), and that
such conduct affects commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent has answered
admitting certain facts but putting in issue the
perpetration of any unfair labor practices.
Pursuant to due notice, this case came to be heard and
was heard before me on May 4, 5, and 6. 1966, at Buffalo,
New York. All parties were represented at and
participated in the hearing and were granted full
opportunity to offer evidence , examine and cross-examine
witnesses , present oral argument, and submit briefs.
Respondent and the General Counsel have submitted
briefs. Respondent' s motions to dismiss were denied at the
hearing.
The issues in this case are.
(1) Whether Textile Workers Union of America,
AFL-CIO, represented an uncoerced majority of the
Company's employees in a unit admittedly appropriate.
(2) If so, whether Respondent entertained a good-faith
doubt of that majority.
(3) Whether an election should be held on the pending
petition of the Charging Party before Respondent will be
obligated to recognize and bargain with it.
(4) Whether a speech and two letters, or any of them, of
Respondent to its employees constitute illegal
interference, restraint, or coercion of such employees.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Hercules Packing Corporation, a New York corporation,
is engaged at Alden, New York, and in Conneaut, Ohio, in
manufacturing, selling, and distributing industrial rubber
products and related products. Employees at the Ohio
plant are represented by United Steel Workers. Only the
Alden plant is involved in this proceeding. During the year
preceding March 30, 1966, said Alden plant shipped goods
valued in excess of $50,000 directly to points outside the
State of New York. I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the purposes of the Act to
assert jurisdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, herein
also called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal to Recognize and Bargain
1. The Union's campaign
James E. Ryan , an International representative of the
Union, undertook to organize the Company's production
and maintenance employees in the middle of August
1965.' A meeting for employees was held by Ryan on
August 24 at Chet's Tavern in nearby Depew, New York.
About 12 attended. Ryan distributed union designation
and membership cards to them. All 12 signed cards at the
meeting and then handed them to Ryan. These 12 are:
Edna Folger, Joe Gold, Jr., Bruce Green, Edward Herkey,
Marion Hunt, Wayne G. Mang, Norman Rudolph, Jr.,
James R. Saupe, Douglas Schlaback, Paul A. Woronowski,
Konrad Holz, and Allen Tyll. They were turned over by
Ryan to the NLRB Regional Office in Buffalo on
September 2.
A second meeting of employees was held by Ryan on
September 1 at the Alden Grill in Alden, New York. At
this meeting James Tyll signed a union card and gave it to
Ryan. Between August 24 and September 1 employee
Norman Rudolph had successfully solicited about 25 or 30
other employees to sign such cards. Rudolph gave these
cards to Ryan. By the end of September 1 Ryan had in his
possession a total of 43 cards signed by employees in the
unit.
2. The Union's demand for recognition
On September 2 Ryan, accompanied by Union Vice
President Garnold Richards, called at the Company's
' All dates mentioned hereafter refer to 1965 except where
otherwise noted
HERCULES PACKING CORP. 267
plant in Alden in the morning. They were received by
Company President Rueger who was informed by Ryan
that "I'm here to make a demand upon you and to inform
you that the Textile Workers of America represents a
majority of your employees and that we want to be
recognized as the Collective Bargaining Agent for the
production and maintenance employees. And we'd like to
sit down and negotiate a contract with you." Continuing,
Ryan told Rueger that "We were willing to submit proof,
we had the evidence with us if [you] cared to look at it."
Rueger replied "No" and that "All our labor relations are
handled by our attorney, Campbell." After further
conversation it was agreed that Rueger would get in touch
with counsel Campbell in about an hour and that Ryan
would hear from Campbell shortly thereafter.
President Rueger testified that Ryan told him the Union
"represented a majority of the people who work in the
plant" and asked for "a meeting to talk about working out
a contract with us." Rueger replied, "You say you have a
majority ... I have heard that before. And apparently it
wasn't true then, and I'm not sure that this is true now."
No one mentioned cards or proof of majority, according to
Rueger. Then Rueger called Campbell telling him that the
Union again claimed a majority and that Rueger had
referred the Union to Campbell who conducted
negotiations for the Company.2
While Ryan was talking to President Rueger in the
above conversation, I find that he held in his hand the 39
union designation cards mentioned above. Ryan also
asked Rueger for, but was denied, permission to talk to a
committee of employees at the plant.
Later in the morning of September 2, Respondent's
counsel, Campbell, telephoned Ryan. Campbell stated
that he understood Ryan had been a "busy boy this
morning running around knocking on doors with hands full
of blue cards." Ryan replied that this was true as he had
"just finished" demanding recognition of Rueger in a
production and maintenance unit and had "offered proof"
to Rueger. Continuing, Ryan said, "I'm making the same
demand upon you and offering proof." Campbell replied
that he did not believe in card counts because
"something" may later develop to "embarrass us," but
expressed willingness to consent to a quick election. To
this Ryan replied that, since he was demanding
recognition, the Company was free to file an RM petition.
Campbell agreed that he probably would have done so but
was prevented from doing this because he was
exceptionally busy; and requested Ryan to file an RC
petition, promising to a "consent meeting" as quickly as
possible. Ryan agreed to this "quick consent meeting"
provided it resulted in a "quick election." Campbell
assured Ryan that a quick election "could be arranged."
Respondent's evidence substantially confirms Ryan's
testimony except that Rueger testified that Ryan did not
offer to prove the Union's majority. In this respect I credit
Ryan. A contrary finding is not required because Ryan in
an affidavit failed to mention an offer to prove a majority.
See Respondent's Exhibit 1, pp. 3-4. This is because I
credit Ryan's oral testimony. Further I credit Ryan that
when Campbell called him on the telephone Campbell
referred to Ryan having his "hands full of blue cards,"
which, I find, are union cards. Campbell could only have
learned of these cards from Rueger, who had just called
him about Ryan's visit. Hence Rueger must have been told
by Ryan of the cards and, I find, of an offer to prove that
such cards constituted a majority of employees in the unit.
As a result of the foregoing conversation, an informal
meeting of the parties was held at the Board's Buffalo
offices on September 7. Ryan, who was present, again
demanded recognition of the Company's counsel,
Campbell, who was also present. The latter replied that,
since Ryan had "two years to be signing these people up in
gin mills," Campbell needed a week "to turn them
around." Union Representative Richards, who was also
present, praised the high caliber of the employees and
denied that they "hang out in gin mills." It was agreed by
the parties at this meeting that an election would be
conducted on September 16
3. The Union 's majority
As described above, Union Representative Ryan was
handed signed cards by 12 employees at a meeting held at
Chet' s Tavern in the town of Depew on August 24.
Although some employees had drunk beer before the
meeting opened , none of them drank any beer during the
meeting. At the meeting Ryan also handed additional
blank cards to the employees , whom he exhorted to solicit
other employees to sign at the plant . Ryan told employees
present that the purpose of the cards was to designate the
Union, Textile Workers of America, as the collective-
bargaining agent of the production and maintenance
employees ; that the Union had lost elections at the plant in
the past; and that " this time" the Union was going to "do it
differently" by "very definitely going" to make a demand
upon the Company as soon as "majority status" was
"reached ." Further, Ryan told them that , if the Union
became bargaining agent , individual employees would be
precluded from negotiating with the Company except
through the Union.
Further , Ryan told them that the Union would attempt to
negotiate a bonus, which the Company had informed them
would not be paid that year , to be given as wages, so that it
would be reflected in weekly earnings rather than cause
them " to wait till Christmas to find out if they were going
to get a bonus ." Ryan also stated that the Union would
attempt to negotiate a general wage increase and a job
classification system to eliminate "inequities ." These
statements , I find , constitute campaign propaganda, and
not guarantees. Conren, Inc., 156 NLRB 592. Hence I find
no impropriety therein tainting the validity of signed cards
obtained at the August 24 meeting.
Ryan further told them at that meeting there would be
no initiation fee, which , under the constitution of the
Union, could not be less than $1 , for those signing up then
or before a contract was executed . But I find, consonant
with the pertinent Board adjudications , that the
unconditional foregoing of initiation fees during an
organizing drive is proper and, therefore , will not
undermine the validity of cards designating the Union.
Ottenhetmer & Co., 144 NLRB 38, 46, and cases there
cited , enfd. 334 F . 2d 581 (C.A.D.C.).
As found above, Ryan met with employees again on
September 1. At that time he had signed cards from a
majority of employees and notified those present that he
2 It may be noted that, in his call to Campbell, Rueger omitted
allusion to his statement to Ryan that he (Rueger) doubted the
Union's majority This is but an instance of oversight Yet the
Respondent makes much of the fact that Ryan in his affidavit fails
to mention offer to Rueger of proof of majority although he (Ryan)
testified that he made such offer As found elsewhere, I credit
Ryan's oral testimony that he made such offer to prove majority
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would make a demand on the Company for recognition the
next morning because he had such majority.
None of the foregoing facts impeaches the validity of the
cards offered through Ryan. Hence I find that these cards
are not infected by fraud, coercion, or misrepresentation.
See N.L.R.B. v. Gotham Shoe Mfg. Co., 359 F.2d 684
(C.A. 2). Further, I find that these cards are properly
authenticated. Taitel & Son, 119 NLRB 910, 912, enfd. 261
F.2d 1 (C.A. 7), cert. denied 359 U.S. 944; N.L.R.B. v.
Hunter Engineering Co., 104 NLRB 1016, 215 F.2d 916,
923 (C.A. 8); Aero Corp., 149 NLRB 1283, 1287; Northwest
Engineering, 158 NLRB 624. Accordingly, I find that the
cards of the following 11 employees will be counted in
computing the Union's total number of valid cards: Folger,
Gold, Green, Herkey, Hunt, Mang, Norman Rudolph, Jr.,
Saupe, Schlabach, Woronowski, Tyll. Mang quit on
March 26, 1966, Saupe on December 1, 1965, and
Schlaback on November 19. But this does not destroy the
validity of their cards. Tyll's is dated September 1
erroneously.
Norman Rudolph solicited employees to sign union
designation cards. He succeeded as to employees Emma
Aylsworth and Anna James on about August 26 or 27.
Each thereafter handed him a signed card. Nothing in the
record impugns the validity of these two cards. Further, I
find they have been properly authenticated by Rudolph.
Accordingly, I find that the cards of Aylsworth and James
will be counted in ascertaining the Union's total number of
valid cards.
Employee Emil Gruca signed a union card about
August 26. He left the employ of Respondent on
November 12, 1965. I find that nothing in the record
destroys the validity of Gruca's card. In addition, I find
that Gruca's loss of employee status in November does not
detract from such validity, since he was an employee when
the Union made demands for recognition on September 2
and 7 Accordingly, Gruca's card will be counted.
Gruca also obtained signed cards from employees Ruth
Klier and Margaret Nuwer about August 26 and Josephine
Krempa and Lottie Nowalk about August 27. He had
previously distributed blank cards to them, telling each
one to sign if she wanted a union and not to sign if she did
not. He also told them a union would be better on
"benefits," giving as an example some discriminatory
treatment as to him on job training at company expense,
and stated he was for the Union. All but Krempa signed in
his presence. I find Krempa's card properly authenticated.
After he received the four signed cards Gruca turned them
over to Norman Rudolph. I find that Gruca's statements to
these employees do not amount to fraud,
misrepresentation, coercion, or other misconduct affecting
their validity. Hence I find these four cards are valid and
they will be counted.
Employee Dennis Petschke printed his name to a card
at the union meeting of August 24. Then he gave it to
Union Representative Ryan at the meeting. Although
Petschke's name is printed on the card, I find that he
intended such printing to constitute his signature. Since
no evidence has been adduced which would infect this
card, I find it valid and it will be counted.
Petschke also distributed blank cards to some
employees. He received signed cards from employees
Helen Czaya and Geraldine Wysocki on about August 26.
He observed Czaya sign her card. I find Wysocki's
properly authenticated. Employee Norman Rudolph had
given him the blank cards. Petschke told these employees
that "if we wanted a union to represent us, we had to have
a majority of the people to have an election," and that the
card was "to get the Union." After obtaining these signed
cards, Petschke gave them to Norman Rudolph. I find the
cards of employees Czaya and Wysocki are valid and will
be counted. Although Petschke referred to an election,
this does not detract from the validity of the cards,
because an election was not mentioned as the sole purpose
of the card. N.L.R.B. v. Gotham Shoe Mfg. Co., 359 F.2d
684 (C.A. 2); N.L.R.B. v. Cumberland Shoe Co., 351 F.2d
917 (C.A. 6). Moreover, the cards clearly state their
purpose, and no evidence has been proffered to show that
the employees did not comprehend the plain meaning of
the text. General Steel Products, 157 NLRB 636. "The very
act of signing ... calls for a finding that the employee
knew what he was doing." Jas. H. Matthews & Co. V.
N.L.R.B., 354 F.2d 432 (C.A. 8). In my opinion N.L.R.B. v.
Peterson, 342 F.2d 221 (C.A. 5), is distinguishable.
The validity of the card of employee Konrad Holz was
vigorously contested. Holz printed his name, address, and
telephone number, on a card dated August 24, 1965 (G.C.
Exh. 7(L)) I find that he also inserted the date on said
card. These acts he executed at the union meeting of
August 24 held at Chet's Tavern in nearby Depew and
then gave the card to "one of the boys" who collected the
cards there. Holz also testified that he had signed a caid in
the Union's prior campaign (in 1963) at the plant because
he was at that time "scared" and because he was in 1963
told "the green card is only for an election ... the card is
nothing important" and 50 percent was needed for an
election. He further testified that by placing his name on
the 1965 card he did not accept "membership" but
intended "only that there be an election in the plant," and
that he both read and did not read the present (1965) card
before executing it. Finally, Holz testified that he did not
consider the printing to be his signature but "only to give
my address."
It is my opinion, and I find, that no misrepresentation,
fraud, or coercion was practiced upon Holz to obtain his
execution of the card. The fact that an election was
mentioned to him in 1963 as the only purpose of signing in
connection with a card signed then, that he was scared in
1963, and that he was informed in 1963 that the card was
not important, is too remote to affect the validity of his
1965 card, and I so find. Moreover, the plain words on the
card are controlling evidence over his subjective
understanding. International Union, UAW (Aero Corp.) v.
N.L.R.B., 363 F.2d 702 (C.A.D.C.). Moreover, I find that
the printing of the card constitutes a signature thereto, and
that it was not intended "only to give my address." This is
because Holz also testified that he intended that the card
be used for an election, a fact inconsistent in that it was to
be utilized only to record his address. And I further find
that failure to read the card (S. E. Nichols, 156 NLRB
1201) and his subjective intent to have the card used only
for an election do not render his card nugatory (General
Steel Products 157 NLRB 636; N.L.R.B. v. Cumberland
Shoe, 351 F.2d 917 (C.A. 6); Bernard S. Happach v.
N.L.R.B., 353 F.2d 629 (C.A. 8)), especially since he has
not repudiated or sought to cancel the card. Jas. H.
Matthews Co. v. N.L.R.B., 354 F.2d 438 (C.A. 2); Tinsley
Dairy, 142 NLRB 683, 686; Conren, Inc., 156 NLRB 592.
And Holz' thoughts or afterthoughts in executing the card
may not override the plain language on his card. Gary Steel
Products, 144 NLRB 1160; N.L.R.B. v. Gotham Shoe, 359
F.2d 684 (C.A. 2).
Accordingly, I find that the card of Holz is a valid
designation of the Union and will be counted.
HERCULES PACKING CORP. 269
Employee Allen J. Rudolph signed a card. It is dated
August 25. He received and signed it at a union meeting
held in Depew, New York. Then he gave it to a union
representative present. He had a drink of beer at the bar
before the meeting started. Nothing in the record impugns
Rudolph's card. Accordingly, I find it is a valid designation
of the Union and that it will be counted. Rudolph also
solicited two other employees to sign a card, i.e., Joyce
Betz and Margaret Gerhart. One of the girls gave him both
signed cards, dated August 25, later in the day.
Another employee who signed a card is Terry Landers.
It is dated August 26. He received it from Kenneth Wright
the day before. After signing it, Landers returned it to
Wright. In his testimony, Landers said that he heard many
people in the plant mention that if the Union obtained a
majority "we would have a vote." This last statement does
not vitiate the card of Landers. N.L.R.B. v. Gotham Shoe
Mfg. Corp., supra (C.A. 2). And the record is barren of any
other evidence which may be found to amount to fraud,
misrepresentation, coercion, or other misconduct.
Accordingly, I find that the card of Landers is valid and
will be counted.
Josephine LaPiana signed a card dated August 26. It
was handed to her by Kenneth Penman. At first LaPiana
told Penman that she did not want to be bothered.
However, "in order to keep him from pestering," LaPiana
"took the card and signed it and got it over with." Later in
the day LaPiana returned the signed card to Penman. In
my opinion this persistence of Penman, absent evidence of
misbehavior accompanying his solicitation, does not
vitiate LaPiana's card. This is particularly true since
LaPiana did not immediately return the card after she
signed it and she has not requested its cancellation.
Conren, Inc., 156 NLRB 592. Accordingly, I find that
LaPiana's card is valid and it will be counted, since her
thoughts or afterthoughts in signing may not contradict the
clear language set forth on the card. N.L.R.B. v. Gotham
Shoe, supra; General Steel Products, supra.
Carl Gagliardi signed a card on August 25 given to him
on the same day by Joe Gold. I find it is valid and will be
counted.
Norbert Schmitt also signed a card on August 26. It was
given to him the day before by Kenny Penman, who told
him a few employees were thinking of forming a union and,
if Schmitt was interested, to sign the card and return it to
Penman. I find that Schmitt's card is valid and it will be
counted.
Mary Hoffman signed a card which is dated
"8/27-1965." It was given to her by employee Wayne
Mang. Although she did not, at the hearing, recall when
she signed it, she testified credibly that she filled in the
date and all other blank spaces. Hence I find that she
executed the card on August 27. When Mang gave
Hoffman the card he asked her to sign it. I find no
improper conduct was used to obtain Hoffman 's signature.
Accordingly, I find that Hoffman's card is valid and it will
be counted.
Betty George signed a card which bears the date
"8/26-1965." Since she filled in all blank spaces, including
the date, I find that she signed it on August 26. She "just
signed it so that they'd leave me alone and I wouldn't have
to be bothered with it any more." This she did some time
after receiving the card. On this testimony I find that
George's card is valid and it will be counted. N.L.R.B. v.
Gotham Shoe Mfg. Co., supra.
Anna Cieszki signed a card and filled in all blanks,
including the date "8/27-1965." Jack Rudolph gave it to
her, telling her if she wanted to join the Union "we
wouldn't be pushed around" and "we will be making more
money." After signing it, she returned the card to
Rudolph. In my opinion, Rudolph's statement is legitimate
campaign propaganda and does not detract from the
validity of the card. Conren, Inc., supra. On this evidence I
find that Cieszki's card is valid and will be counted.
Margaret Gerhart signed and filled in all blanks on a
card which she dated "8/25-1965." She received it from
Allen Rudolph, who is her leadman or setup man. If
material, I find that the evidence is insufficient to
establish that Rudolph is a supervisor within the meaning
of Section 2(11) of the Act. Rudolph asked her to sign it if
she liked. He also told her if there were enough blue cards
the Union would come in "and talk over with us what they
would do." After signing it, she returned it to Rudolph.
Nothing in the evidence points to any objectionable
conduct by Rudolph in soliciting Gerhart's signature.
Accordingly, I find her card is valid and it will be counted.
Joyce Betz signed a card and filled in all blanks on a
card which she dated "25th August 1965." It was given to
her by Allen Rudolph at the same time he gave one to
Margaret Gerhart. Rudolph asked if Betz and Gerhart
would be interested in hearing about the Union and what it
had to offer and, if so, to sign and return the card to him.
Betz did so. I find that the card of Betz is valid and it will
be counted.
Janet Merkel filled out and signed a card bearing the
date "8/26/1965." However, she did not insert the date. It
was presented to her by employee Edna Mae Folger.
Although Merkel could not recall when she executed the
card, I find it was not later than 1:01 p.m., September 2,
since it bears the official stamp of the NLRB Regional
Office that it was received on that date and that time. But I
further find that it was in possession of the Union on
September 2 when the demand for recognition was made
upon Respondent.
When Folger gave the card to Merkel, Folger asked her
to sign it. When Merkel replied she was in a hurry, Folger
told her not to worry and to return it later. For a couple of
days Folger "kept after [Merkel] for the card back
signed." Folger also told her "they just wanted enough
cards signed so that they could have the Union come in for
a vote, that no one would know who signed a card, that it
didn't really mean that much." A couple of days later
Merkel gave Folger the completed card. I find that Merkel
had plenty of time to comprehend the plain meaning of the
text of the card; that at no time did Merkel attempt to
repudiate her card; and that a vote was not mentioned as
the sole purpose of the card. Although Merkel at one point
testified that Folger told her the sole purpose of the card
was to obtain an election, she also testified that when she
received the card something was said about needing a
majority for the Union to get in. Hence, I do not credit
Merkel that the sole purpose of the card was to obtain a
vote. Accordingly, I find that Merkel's card is valid and
will be counted. N.L.R.B. v. Gotham Shoe Mfg. Co., supra.
Margaret Martin filled out, dated, and signed a card on
August 25. It was given to her either by Douglas Schlabach
or James Saupe. Nothing in the record successfully
attacks the validity of this card. Hence I find it is valid,
and it will be counted.
Ronald Czosnyka completed and signed a card on
August 25. It was given to him about a week before by
employee Paul Woronowski. The record discloses nothing
to impugn the validity of this card. So I find it is valid and
will be counted.
Kenneth Penman filled in and signed a card on
August 25. He did not fill in the words "Main-32" after
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the printed word "DEPARTMENT." But this does not vitiate
the card. S. E. Nichols Co., supra. After completing the
card Penman placed it on employee Saupe's desk. Saupe
was not present at the time. At least one day intervened
between the day he received the card and the day Penman
executed it. I find that it is not fatal that Saupe was not
present when the card was placed on his desk, since it
bears an NLRB official stamp indicating it was received
by the Regional Office on September 2. Nor do I find
anything in the record which otherwise demolishes the
validity of the card. Hence, I find that it is valid and it will
be counted.
Michael Scott completed, signed, and dated a card on
August 25 It was given to him by Wayne Mang. From
general talk prior to this Scott "understood" that, if he
Signed the card, "the Union would be able to represent us
. so that we could possibly have an election to elect the
Union in ... we needed a certain percent to have the
Union represent us until election time." However, the
person who handed him the card merely told him, "This is
the blue card. You should sign it if you want a
representative." At another point in his testimony Scott
testified that Jack Rudolph told him "we had to have a
certain percentage of the cards . either to get the
election or sign the card-to get the Union in." I find that
an election was not mentioned as the sole purpose of the
card. Hence, this alone does not invalidate the card.
N.L.R.B. v. Gotham Shoe Mfg. Co., supra. Scott was also
told "possibly we could get better wages and may be better
conditions." This latter statement, I find, is campaign
propaganda which does not destroy the validity of the
card. Conren, Inc., supra. It follows, and I find, that Scott's
card is valid. It will be counted.
Kenneth Wright signed and filled in a card. It is dated
"8/27-1965," but he did not insert the date. Although he
does not recall when he received or signed it, Wright
testified that he had the card in his possession for a week
before executing it. After signing it, he turned it over to
Douglas Schlabach or James Saupe. Since the card bears
in official stamp of the NLRB Regional Office noting its
receipt on September 2, and since Union Representative
Ryan gave all his cards to that Regional Office, it is
reasonable to infer-and I do so-that Wright signed his
card and it was in the possession of the Union before the
Union made its demand for recognition on September 2.
Further, I find that no misconduct occurred to induce
Wright to sign. Accordingly, I find that his card is valid
and will be counted.
Dolores Berlinski filled in and signed a card on
August 25. She received it from Paul Woronowski, who
told her no one would know if she signed it. He also asked
her if she wanted "to sign a card for the Union" because
"they needed a certain majority for the Union to come in
. and after this, there would be a vote." Some time after
this Union Representative Ryan had visited her home and
told her something "about better wages if the Union came
in," what the Union "would do for us," and that nobody
would know she had signed a card. On the foregoing
evidence, I find that Berlinski's card is valid and will be
counted
Anthony Stellbrecht completed and signed a card about
August 25. It was given to him by Douglas Schlabach or
James Saupe, who told him to fill it out if he'd "like to see
a Union in here ... to get a vote ... they had to have a
certain amount to have a vote." After reading it he did fill
it out and sign it. I find that Stellbrecht was not told that
the only purpose of the card was to obtain a vote. Hence, I
find the card valid, and it will be counted (N.L.R.B. v.
Gotham Shoe Mfg. Co., supra) even though I am aware
that some element of fraud enters into a solicitation of a
signature "to have a vote" when a vote is not contemplated
by the organization relying upon the card as designating it
as collective-bargaining agent. But such fraud, it has been
held, will not override the plain words of the card, if the
fraud does not comprehend an election or vote as the sole
purpose of the card. Jas. H. Matthews & Co. v. N.L.R.B.,
354 F.2d 432 (C.A. 8); N.L.R.B. v. Gotham Shoe Mfg. Co.,
supra (C.A. 2).
Arthur Dombrowski filled out and signed a card on
September 9. He started work on September 7. When the
card was handed to him, he was told "a union was trying to
get in to the shop." He was also asked to sign so that
"enough of the cards [would] get an election." I find
as in the case of Stellbrecht, that the sole purpose of the
card was not to obtain an election. However,
Dombrowski's card will not be counted in ascertaining
whether the Union had a majority on September 2 or 7,
since it was not delivered until September 9. However, it
will be counted in connection with the Union' s continuing
demand after September 9, as I find that the Union's
demand for recognition was a continuing one. Henry Spen
Co., 150 NLRB 138,139; Scobell Chemical Co. v. N.L.R B.,
267 F.2d 922 (C.A. 2). Although Dombrowski left
Respondent's employ in January 1966, I find this does not
impair the validity of his card on and after September 9.
Geraldine Wysocki completed, signed, and dated a card
on August 26. It was given to her by Dennis Petschke a
day or two before this. As no evidence was adduced which,
fairly construed, undermines the validity of her card, I find
that it is good and it will be counted.
Dwight Leo filled out and signed a card about
August 25. He received it the day before from Douglas
Schlabach, who asked him "if [Leo] had any objections to
allowing a Union election in the plant." When Leo replied
he had no objection, Schlabach, handed him a card, told
him to "look it over," and, "if [Leo] wanted, to sign this
card to allow the Union election" and return it to
Schlabach. The latter also said the Company could not fire
Leo for signing the card. This last statement manifestly is
true and cannot be considered as misrepresenting facts.
In response to a question on cross-examination whether
an election "was the only purpose of the card," Leo
replied that he was "told ... that the purpose of the card
was to allow an election and if the majority of the people in
the plant voted for the Union, United Textile Workers ...
would be the representative for the people at the
Company," and that this "was the extent of the
conversation." I find that the reasonable import of this
testimony conveys the conclusion that Leo was informed
that the sole purpose of the card was to obtain an election.
Hence, I find that Leo's card is sufficiently infected with
fraud to be invalid. It will not be counted.3 Another result
is not required because Leo read the card during his
leisure , for cards obtained by false representations are
"unreliable." Englewood Lumber Co., 130 NLRB 394, 395.
Lee Garbacz, an employee in the unit on August 31, was
serving in the United States Air Force at the time of the
hearing and was unable to testify. It was stipulated that
the signature on a card in evidence as General Counsel's
Exhibit 8(u) is genuine. It bears his name. Hence I find
that he signed it. That card is dated "Aug. 27, 1965,"
appears to be completed in the same handwriting as that of
' Leo left Respondent's employ in November I find this does
not invalidate his card if it is found to be otherwise valid by the
Board or court
HERCULES PACKING CORP. 271
the signature, and is stamped as officially received in the
NLRB Regional Office at 1:01 p.m. on September 2. Aero
Corp., 149 NLRB 1283, 1291; General Steel, 157 NLRB
636. On this evidence I find that this card was executed on
August 27 and that it was in the possession of the Union
when it made a demand for recognition on September 2.
Northwest Engineering, 158 NLRB 624: Lifetime Door, 158
NLRB 13. Therefore it will be counted in the absence of
evidence that this employee has terminated his
employment with the Company.
Larry Puchala, an employee in the unit on August 31,
was in the United States Air Force when the hearing was
held and consequently could not testify. It was stipulated
that the signature on a card in evidence as General
Counsel's Exhibit 8(v) is genuine. It bears his name.
Accordingly, I find that he signed it. That card dated
"8/26/65," appears to be filled in by the person who signed
it, and is stamped as officially received in the NLRB
Regional Office at 1:02 p.m. on September 2. For the
reasons expressed in connection with the card of Lee
Garbacz, I find that Puchala's card is valid, and it will be
counted. Cf. Photobell Company, Inc., 158 NLRB 738.
4. Concluding findings as to the refusal to bargain
No dispute exists as to the unit. On the record before me
I find as appropriate for the purposes of collective
bargaining a unit composed of "All production and
maintenance employees employed by the Respondent at
its Alden, New York, plant, excluding all other employees,
office clerical employees, professional employees, guards,
and supervisors as defined in the Act." In fact, the Board
found this unit appropriate in the related representation
case. See General Counsel's Exhibit 6, p. 2. It is binding
upon me.
Further, I find that the Union made a demand on
September 2 and 7 upon Respondent for recognition as the
exclusive bargaining representative of the employees in
said appropriate unit, and that on each occasion
Respondent refused to grant such recognition. In this
connection I find that Union Representative Ryan, in
making the demand, described the unit as "production
and maintenance employees"; and Respondent's evidence
not consonant with this is not credited. The fact that Ryan
did not mention exclusions does not detract from the
lawfulness of the demand.
There were 78 employees in the unit on September 2
and 79 on September 7, computed as follows: The parties
have stipulated that at least 78 were employed therein on
August 31 and September 2. See General Counsel's
Exhibit 2. And the record discloses that one employee,
Arthur Dombrowski, was hired on September 3 and began
work on September 7. It was further stipulated at the
hearing that the parties on September 7 stipulated that
those enumerated in General Counsel's Exhibit 2 were
eligible to vote in an election held on September 16 It is
reasonable to infer-and I do so-that the unit on
September 2 consisted of 78 and on September 7 was
composed of 79 employees; i.e., the 78 in General
Counsel's Exhibit 2 plus Dombrowski.
At the time of claiming recognition on September 2 and
7 the Union had in its possession 42 valid cards
designating it as collective-bargaining agent. Manifestly
this is a majority of those employed in a unit composed of
78 or 79 employees. It follows, and I find that on
September 2 and thereafter Respondent was obligated by
statute to recognize and bargain with the Union as the
exclusive bargaining representative of the employees in
the unit involved, unless that majority was illegally or
improperly obtained or unless the employer had
reasonable grounds to doubt that majority in good faith. I
have already found that the Union's majority was properly
obtained and is not contaminated by improper methods
used by those soliciting signatures to cards. The remaining
question is whether the Respondent's doubt of majority
rested upon good faith. Cameo Lingerie, 148 NLRB 535.
538; Aaron Bros., 158 NLRB 1077.
First, Respondent contends that, because the Union lost
two elections at the plant in the past, Respondent was
justified in questioning the Union's majority on
September 2. But I find that Respondent did not
categorically rely on this past lack of success as a reason
for doubting a majority. Rather, I find that Respondent
answered the Union's first demand only through President
Rueger and that Rueger said in such reply, "You say you
have a majority . . . I have heard that before. And
apparently it wasn't true then, and I'm not sure that this is
true now." This is not an explicit assertion of genuine
doubt. Further, I find that Ryan offered to prove his
majority, that Rueger did not accept this offer, and that
Rueger referred Ryan to Company Counsel Campbell. Cf.
Irving Air Chute v. N.L.R.B., 350 F.2d 176, 182 (C.A. 2).
Hence I find that Rueger did not specifically question the
majority of the Union on September 2. Thus N.L.R B. v.
Johnnie's Poultry Co., 344 F 2d 617 (C.A 8), is
distinguishable. Nor did Campbell question the majority.
In any event, I find that an employer is not justified in
refusing recognition solely by reason of the fact that the
Union lost two elections in the past; for this connotes that
a Union would never be entitled to demand recognition
upon a card check after it had once lost an election in the
same plant.
Secondly, Respondent contends that the Union never
offered to prove its majority. On this issue I credit the
General Counsel's evidence, and do not credit evidence of
Respondent inconsistent therewith. Hence I find this
contention not well taken. In this connection I have not
overlooked Ryan's inconsistent written statement as to
what he told Rueger. See Respondent's Exhibit 1.
Moreover I find that Ryan, in any event, offered to prove
majority to Company Counsel Campbell on September 2.
Then, again, Respondent claims that the Union never
mentioned how many were in the unit (other than an
incorrect statement in its petition in the representation
case, 3-RC-3740, that 70 employees were included) or
how many actual cards it possessed. I find this argument
lacks merit and will not, without more, support a good-
faith doubt of majority. "Where, as here, the union had
proof of its majority status readily available and
[Respondent] chose not to learn the facts, it took the
chance of what they might be." Jas. H. Matthews & Co. v.
N.L.R.B., 354 F.2d 432 (C.A. 8); Irving Air Chute v.
N.L.R.B., 350 F.2d 176, 182 (C.A. 2). Cf. N.L.R.B. v. C. J.
Glasgow Co., 356 F.2d 476 (C.A. 7).
Thirdly, Respondent bases its good faith on the
contention that the Union waived its demand for
recognition and bargaining. This position is claimed to be
supported by the assertion that "the Union affirmatively
tendered to the Company a choice between immediate
recognition and an election ...... (See p. 8 of
Respondent's brief. ) But I do not so find. Instead I find
that the Union agreed to an election only after the
Company demanded one, and that the Union' s original
request for recognition was not qualified or limited by
presenting Respondent with the alternative of an election.
The fact that the Union, after consenting to an election,
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported to its members (See Respondent 's Exhibit 12)
that it had agreed with the Company to an election does
not compel a different finding. This merely recited a true
historical fact which did not amount to a waiver . In fact
Respondent ' s Exhibit 12 expressly states that the Union
visited the Company "to request recognition of our Union
as the collective bargaining agent of all production and
maintenance employees of Hercules" and that the Union
later consented to an election . Merely consenting to an
election does not amount to a waiver of a demand for
recognition. Bernel Foam Co., 146 NLRB 1277; Irving Air
Chute V. N.L.R.B., 350 F.2d 176,182 (C.A. 2).
Respondent further contends it had a reasonable doubt
as to majority because another union in 1960 and 1962 had
lost elections at its Conneaut , Ohio, plants . For the
reasons expressed above, I find this argument is not well
founded , although I do find as facts that such elections
were lost in those years.
Finally, Respondent seeks to justify a good -faith doubt
by its lack of knowledge of union activity prior to the 1965
demand for recognition , whereas it had such knowledge in
the past ; so that before the 1965 demand it "had no such
forewarning." I do not credit Respondent 's evidence that
it had no knowledge of the 1965 activity . For example,
Respondent had some knowledge of union activity at some
time, for it introduced in evidence a union pamphlet. (See
Respondent's Exhibit 12.) Of course this does not prove
when such knowledge was acquired ; but I am not required
to find when it learned of union activity at its plant. It is
sufficient for present purposes that I do not credit such
evidence that it had no knowledge . In any event I find that
want of knowledge of union activity preceding a demand
will not excuse a refusal to look into the Union 's majority.
However , I do not find want of good faith in doubting the
Union's majority in the fact that Respondent engaged in
unfair labor practices by certain passages in the speech of
September 14. This is because the demand for recognition
preceded this speech. Hence N.L.R.B. v. Farrell Co., 360
F.2d 205 (C.A. 2), is inapposite.
Moreover , I find that Respondent 's conduct in refusing
to recognize the Union is not flagrant and evidence of its
union animus is slight . Cf. N.L.R.B. v. Flomatic Corp., 347
F.2d 74, 78 (C.A. 2). But this does not prevent a finding of
an unlawful refusal to bargain and a recommendation of an
appropriate bargaining order. Joy Silk Mills v. N.L.R.B.,
185 F.2d 732,741 (C.A.D.C.).
Further, I find that a bargaining order is appropriate
because no question of representation exists in the
connected representation case. A bargaining order is
proper because there is no outstanding valid election.
Photobell Company, Inc., 158 NLRB 738. As found above
the election heretofore held on September 16 has been set
aside by the Board. See General Counsel's Exhibit 6.
B. Interference, Restraint, and Coercion
1. The letter of September 7 or 8
Following the Union's demands for recognition on
September 2 and 7, Respondent on about September 7 or
8 mailed a letter (G.C.Exh. 3) to all employees in the unit.
It is not contended that this letter, standing alone,
transgresses Section 8(a)(1) of the Act; but the General
Counsel claims it is coercive when appraised in the light of
another letter dated September 11 (G.C.Exh. 4), or a
speech of President Rueger (G.C.Exh. 5) on September 14,
or both. Further, it is not contended that said letter of
September 11 (G.C.Exh. 4) itself violates Section 8(a)(1) of
the Act.
First , since the proposition is given that neither the
letter of September 7 (G.C.Exh. 3) nor the letter of
September 11 (G.C.Exh. 4) amounts to an unfair labor
practice, it follows that when both are read together no
violation of law has been demonstrated . For nothing illegal
added to nothing illegal amounts to nothing illegal. This is
true mathematically also; nothing plus nothing equals
nothing. Stated differently , I find that one lawful letter
(which is nothing illegal ) plus another lawful letter (which
also is nothing illegal ) add up to two lawful letters (which is
still nothing illegal).
Second, it is not contended , nor am I called to pass
upon, the question of whether lawful expressions
protected by Section 8(c) of the Act may be examined for
traces of union animus in evaluating other evidence where
such animus has become an issue. N.L.R.B. v. Va. Electric
Co., 314 U.S. 469; U.A.W. V. N.L.R.B., supra. The only
contention made by the General Counsel is that these two
letters constitute unfair labor practices when read
together or in conjunction with the speech of
September 14 (G.C.Exh. 5); it is not argued that these
letters , although lawful , display union animus by the
Company.
Third, nor do I find that either or both letters , when read
together with the speech of September 14 (G.C.Exh. 5),
constitute unfair labor practices under Section 8(a)(1) of
the Act. This is because these letters were transmitted
several days before the speech was delivered . Hence to
attempt to contaminate the letters , admittedly lawful in
themselves, by subsequent conduct or words of
Respondent , is to give such subsequent conduct
retroactive effect . This may not be done. This is far
different from using the letters to explain subsequent
conduct or words, for in such instance no retroactivity is
involved. Cf. U.A.W. v. N.L.R.B., supra, (C.A.D.C.).
Fourth, of course , when lawful letters or words
simultaneously accompany illegal conduct or words, then,
according to the Board , the lawful conduct or words lose
their protective clothing and may be found to be unlawful.
Savoy Leather Mfg. Corp., 139 NLRB 425,426; McCormick
Longmeadow Stone Co., Inc., 155 NLRB 577, fn. 1. But
that is not the case here. Hence I find that the letters of
September 7 and 11 must be construed apart from the
speech of September 14. When so regarded, they retain
their lawful character. Accordingly I find the letter of
September 7 (G.C.Exh. 3) is not coercive. It will therefore
be recommended that this aspect of the complaint be
dismissed.
2. The letter of September 11 or 12
About September 11 or 12 Respondent mailed another
letter to all employees in the unit (G.C.Exh. 4). The
General Counsel disavows that this letter, taken alone, is
proscribed by the Act as an unfair labor practice . But, as
with the letter of September 7 or 8 , the General Counsel
argues that this September 11 letter transcends Section
8(a)(1) of the Act when appraised along with the speech of
September 14 (G.C.Exh. 5), or the letter of September 7
(G.C.Exh. 3), or both.
For the reasons set forth above in connection with the
letter of September 7 or 8 (G.C.Exh. 3), I find that the
letter of September 11 or 12 is legally innocuous or
otherwise colorless to establish a violation of Section
8(a)(1). Accordingly, I shall recommend that this branch of
the complaint be dismissed.
HERCULES PACKING CORP. 273
3. The speech of September 14
About September 14, President Rueger assembled all
employees and supervisors in the production and
maintenance unit to give them the "Company's side of the
picture." He did this by reading a speech, which was first
edited by Company Counsel Campbell, twice on that day:
about 7 a.m. to the first shift, and in mid-afternoon to
employees on the later shifts. The complete text of
Rueger's remarks is set forth in General Counsel's Exhibit
5. Rueger had in the past several years spoken "regularly"
to employees upon subjects of interest to them, but on
those occasions he did not use a prepared text.
Most of said speech, while expressing opposition to the
Union and presenting arguments in favor of the
Company's position, is protected by Section 8(c) of the Act
as free speech. But I find certain passages therein to
exceed the bounds of allowable free speech and to
constitute restraint and coercion prohibited by Section
8(a)(1).
(a) Rueger adverts to two employees who were found to
be engaged in competition with the Company during
nonworking hours by manufacturing gaskets and selling
them to the Company's customers. After detecting this
situation, Rueger continued, he "still employed" two
brothers of one of these unfaithful employees because, at a
"Harmony Dinner" following an election in 1963 "in which
the union ... was rejected, these [2 brothers] gripped my
hand, looked me in the eye and stated that from that
moment on they would be good, faithful employees and
would do nothing further to impede the progress we were
attempting to make."
This statement may be thought to refer to a failure to
discharge because the two brothers promised not to
compete with the Company. But, I find that it reasonably
means, and was intended to convey the impression, that
Rueger retained them only because they had assured him
they would no longer adhere to the Union and in this
manner demonstrated their loyalty to Respondent. This is
because the two brothers never competed with the
Company, and because the offending, competing
employees did not terminate their employment until
May 4, 1964, as Rueger explained in his speech. (Rueger
testified that one quit and one was discharged on May 4.)
But the Harmony Dinner at which the brothers "gripped
[Rueger's] hand" was celebrated on December 4, 1963.
Hence, it is difficult to comprehend why Rueger should
retain disloyal, competing employees until May 4, 1964,
but be concerned about the loyalty of the innocent
brothers of one of those competing employees on
December 4, 1963. It is more reasonable to construe
Rueger's allusion to his kindness in not discharging the
two brothers as based upon his conviction that they had
assured him that they would disassociate themselves from
the Union. Thus job security was promised in the speech
in return for a vote against the Union. Accordingly, I find
that this aspect of the speech violates Section 8(a)(1) and is
not shielded by Section 8(c) of the Act. This result is not
affected by the fact that Rueger in another speech to
employees called the above disloyalty to their attention,
for that speech was not made until May 5, 1964, and could
not have any bearing on interpreting action taken on
December 4, 1963.
(b) Another portion of Rueger's speech mentions that
past benefits (such as time off to go hunting, or staying at
home with sick children, "or additional days of vacation to
fill out a week," and other benefits there enumerated)
"would go out the window" if the employees were
represented by a union. While it is true that these are
bargainable matters which must be negotiated with a
majority collective-bargaining representative of the
employees, it is equally true that existing benefits cannot
be unilaterally changed by an employer after a union is
selected by employees. Otherwise an employer would be
free to throw even existing wages "out the window" until
they were negotiated with a newly designated union.
Accordingly, I find that this segment of Rueger's speech is
coercive because it threatens employees with reprisals if
they chose a union to represent them.
(c) Still another passage in Rueger's speech refers to
other benefits now enjoyed by younger employees,
including free college or technical school tuition, the hiring
and retaining of young men under 21 who were subject to
immediate draft by the armed services, as well as the
hiring of those who take temporary jobs to finance their
education. Continuing, Rueger asked, "Could we afford to
do this if we were not permitted to deal with you as
individuals, but only as clock numbers?" Like the benefits
in the preceding subsection, I find that these benefits,
according to Rueger's speech, will be lost if a union
represents the employees. Hence, I find an unlawful threat
of reprisals.
(d) As found above, the remainder of the speech is
unobjectionable under Section 8(a)(1) because it is
safeguarded by Section 8(c). While the tenor thereof is
antiunion and proemployer, conveys the thought the
employer's present working conditions are excellent, and
insists that a union 's demand may be resisted by an
employer, nevertheless I find no restraint or coercion
therein. The fact that the Board found that the entire
speech constituted sufficient grounds to set aside the
election of September 16, 1965 (see G.C.Exh. 6), is not
controlling on the question of whether an unfair labor
practice occurred; for, in election cases, conduct not rising
to the gravity of an unfair labor practice may yet be found
to affect the validity of an election. General Shoe Corp., 77
NLRB 124, 126. The Board did not find any unfair labor
practices in setting aside the election. (See G.C.Exh. 6.)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent set forth in section III,
above, found to amount to unfair labor practices occurring
in connection 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.
It having been found that Respondent has engaged in
certain unfair labor practices prohibited by Section 8(a)(1)
and (5) of the Act, it will be recommended that it cease and
desist therefrom and that it take specific affirmative
action, described below, designed to effectuate the
policies of the Act. However, Respondent's conduct in my
opinion does not portray a general hostility to the Act; and,
therefore, a remedy broad in scope is not warranted. The
remedy adopted should be commensurate with the
violations found. Accordingly, I find that an order is
appropriate which is limited to enjoining the conduct
found to be objectionable under the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Textile Workers Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
2. Respondent is an employer as defined in Section 2(2),
and engaged in commerce within the meaning of Section
2(6) and (7), of the Act.
3. By threatening employees with loss of benefits if the
Union succeeded in representing them, and offering
benefits to employees to remain nonunion, Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. All production and maintenance employees
employed by Respondent at its Alden, New York, plant,
excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Sections 8(a)(5) and 9 of
the Act.
5. On or about September 2, 1965, and at all material
times thereafter, the Union has represented a majority and
has been the exclusive bargaining representative of all the
employees in the aforesaid appropriate unit for purposes
of collective bargaining within the meaning of Sections
8(a)(5) and 9 of the Act; and Respondent was on that date,
and has been since, legally obligated to recognize and
bargain with the Union as such
6. By refusing to recognize or bargain with the Union
for the employees in said appropriate unit on and since
September 2, 1965, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
8. Respondent has not committed any other unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize or bargain with the Union as
the exclusive bargaining representative of all the
employees in the above-mentioned appropriate unit.
(b) Threatening its employees with loss of benefits if
the Union succeeded in representing them.
(c) Promising benefits to its employees to remain
nonunion.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
aforesaid appropriate unit and, if an understanding is
reached, embody such understanding in a written signed
agreement.
(b) Post at its premises at Alden, New York, copies of
the attached notice marked "Appendix. '14 Copies of said
notice, to be furnished by the Regional Director for Region
3, after being duly signed by an authorized representative
of Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where such notices are usually displayed Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other aspects.
' 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 "a Decision and Order "
' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order. what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL , upon request, bargain collectively with
Textile Workers Union of America, AFL-CIO, as the
exclusive bargaining representative of all employees
in the bargaining unit described below with respect to
rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is
reached, embody such understanding in a written
signed agreement.
The bargaining unit is
All production and maintenance employees at
our Alden, New York, plant, excluding all clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT threaten our employees with loss of
benefits if Textile Workers Union of America,
AFL-CIO, succeeds in representing them.
WE WILL NOT promise benefits to our employees to
remain nonunion.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of said
Textile Workers Union of America, AFL-CIO, or any
other labor organization.
HERCULES PACKING
CORPORATION
(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, 4th Floor, The
120 Building, 120 Delaware Avenue, Buffalo, New York
14202, Telephone 842-3112.