Irving Air Chute Co., Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1964

149 N.L.R.B. 627 (N.L.R.B. 1964)

IRVING AIR CHUTE CO., INC., MARATHON DIVISION 627
In the light of the employees' own testimony and the record as a whole,
including the absence of antiunion sentiment by the Employer,18 it appears to
me that the few remarks thus admittedly made by Goodman to Knight and
Wesley, considering the casual circumstances under which they were made and
the total absence of even a suggestion of coercive atmosphere or design, could
hardly be regarded as other than isolated and as in no way calculated to interfere
with, restrain, or coerce the employees in the exercise of their Section 7 rights.
Innocuous pleasantry or dialogue is not per se illegal interrogation merely
because an organizational subject is referred to; nor is mere use of the word
"union" by an employer to an employee freighted with hazard.-
I accordingly find and conclude that no economic or other threats were made
by Respondent as alleged; that, as to the alleged interrogations, the alleged
incidents involved (to the extent found) were merely isolated and concoercive
in character, in no way interfering with, restraining, or coercing Respondent's
employees in the exercise of any of their rights under the Act; and, further
that, in any event, even if these incidents were considered to constitute technical,
minor infractions, viewing the case as a whole it would not effectuate the policies
of the Act or serve any useful purpose to issue a cease-and-desist order herein
based thereon.20
1. Respondent is
Section 2 (6) and (7)
2. The Union is
of the Act.
CONCLUSIONS OF LAW
an employer engaged in commerce within the meaning of
of the Act.
a labor organization within the meaning of Section 2(5)
not engaged in any of the unfair labor practices alleged
RECOMMENDED ORDER
3. Respondent has
in the complaint.
It is recommended that the complaint be dismissed.
11 Of. N.L R B. v Jamestown Sterling Corp., 211 F 2d 725, 726 (C A. 2) ; N.L R B. v.
Linda Jo Shoe Company, 3Q7 F. 2d 355, 357 (CA 5)
19 See cases cited supra, footnote 15
21 Cf. Pennsylvania Tire and Rubber Co of Mississippi, Inc, 144 NLRB 466; G. H. Hicks
and Sons, Inc ., 141 NLRB 1272, 1278; and cases cited supra, footnote 15.
Irving Air Chute Company, Inc., Marathon Division and Textile
Workers Union of America, AFL-CIO and Elected Committee
for Employee Representation ,' Party in Interest . Cases Nos.
3-CA-2097 and 3-RC-3140. November 12, 1964
DECISION AND ORDER
On May 18, 1964, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that Respondent had not engaged
1 Even though the Elected Committee for Employee Representation did not formally meet
with the Respondent , employees participated in it, elected representatives , and admittedly
formed It for the purpose of meeting with Respondent to negotiate concerning rates of pay,
seniority rights, and other working conditions Accordingly, we find that the Elected
Committee for Employee Representation is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
149 NLRB No. 59.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in other unfair labor practices alleged in the complaint and recom-
mended dismissal of those allegations. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief.2
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 brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
additions and modifications :
1. We adopt the Trial Examiner's finding that Respondent violated
Section 8(a) (1) of the Act by threatening employees with discharge
if they were active on behalf of the Union.3
2. We find, in agreement with the Trial Examiner, that Respond-
ent violated Section 8(a) (2) and (1) by suggesting the organization
of the Elected Committee For Employee Representation and giving
support and assistance to its formation.
3. We agree with the Trial Examiner that the Union represented
a majority of the employees in the appropriate unit at all relevant
times herein. Under all the circumstances, including Respondent's
flagrant violations of Section 8 (a) (1) and (2) subsequent to the
Union's request for recognition, we find, in accord with the Trial
Examiner, that Respondent's refusal to recognize and meet with
the Union was not based on a good-faith doubt of the Union's
majority. We find, rather, that Respondent seized upon the Union's
filing of a representation petition as an excuse for avoiding its obliga-
tion to recognize and meet with the Union, and that it did so for the
purpose of utilizing the preelection period to undermine the Union's
majority. Contrary to the Respondent's contention, we find no basis
for construing the Union's filing of the petition and the conduct inci-
dental thereto as a withdrawal of its claim to recognition. In this
connection, it is well established that a union's filing of a representa-
tion petition does not of itself suspend an employer's bargaining duty
unless there is other evidence of a good-faith doubt.4 Not only. is there
no such evidence in this case, but Respondent clearly showed its bad
2 Respondent ' s request for oral argument is hereby denied as, in our opinion , the record,
including exceptions and brief , adequately presents the issues and the positions of the
parties.
, In view of the fact that the Trial Examiner found that Respondent did not promise a
benefit to employee Cleo Fear at the Melody Land Restaurant , we deem it unnecessary to
reach the question , discussed in the Trial Examiner 's Decision , whether such promise, even
if made, would violate Section 8(a) (1) in view of the atmosphere of "Joviality and con-
viviality" which resulted from drinking alcoholic beverages for 6 hours.
4 C. J. Glasgow Co., 148 NLRB 98 ; Galloway Manufacturing Corporation, 136 NLRB
405, 406.
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 629
faith by engaging in conduct, during the preelection period, which
we have found violated Section 8(a) (1) and (2). Accordingly, we
find that Respondent thereby violated Section 8(a) (5) of the Act.
Assuming, however, that we were to accept Respondent's conten-
tion that its conduct did not violate Section 8(a) (5), our Order
would not be affected thereby, for we would then direct Respondent
to bargain with the Union, upon request, on the basis of its violations
of Section 8 (a) (1) and (2) subsequent to the time the Union achieved
majority status. In the VestFM A7iuminum case,5 where Section 8(a)
(5) was not violated because the union never made a proper bargain-
ing request, we nevertheless ordered the employer to bargain on the
basis of its violations of Section 8 (a) (1) and (3). We stated there :
Where, as here, the Union has clearly established its majority
status prior to the Respondents' unfair labor practices, and the
Respondents have engaged in unfair labor practices aimed at
destroying the Union's majority and disclosing a disposition to
evade their obligation to bargain, we would require the Respond-
ents to bargain upon request .... Not to order the Respondents
to bargain with the Union upon request would in effect enable
the Respondents to profit by their unfair labor practices.
We think the quoted language is equally applicable to the instant
case.
4. We agree with the Trial Examiner's finding that during the
critical preelection period Respondent engaged in a course of conduct
which interfered with the exercise of freedom of choice by the em-
ployees in the selecting of a bargaining representative,s and his
recommendation that the election of June 5, 1963, be set aside. How-
ever, in view of our holding that Respondent violated Section
8 (a) (5) of the Act and our Order requiring Respondent to recognize
and bargain with the Union, upon request, we do not adopt the Trial
Examiner's Recommended Order that the election merely be set aside.
Rather, we now dismiss the petition in Case No. 3-RC-3140 and
vacate all proceedings held in connection therewith. S.N.C. Manu-
f aetwring Co., Inc., 147 NLRB 809.
5. This case falls within our decision in Bernet Foam Products
Co., Inc., 146 NLRB 1277. We held in that case that a labor organiza-
tion which loses an election may nevertheless seek bargaining relief
under Section 8(a) (6) of the Act or Section 8(a) (1) in appropriate
circumstances, where it appears that the employer has engaged in
6 Western Aluminum of Oregon Incorporated, Western Aluminum. Corporation ( a Cali-
fornia Corporation ), and Oregon Screen Corporation (an Oregon Corporation), 144
NLRB 1191.
$ In reaching this conclusion , we rely exclusively on Respondent 's assistance in the
formation of the Elected Committee for Employee Representation which occurred during
the period of time between the filing of the petition and the holding of the election.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct requiring the election to be set aside. We will not grant such
relief, however, unless the election be set aside upon meritorious
objections filed in the representation case. Were the election not set
aside on the basis of objections in the present representation--case,
we would not now direct a bargaining order even though the unfair
labor practice phase of this proceeding itself established the employ-
er's interference with the election.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Irving
Air Chute Company, Inc., Marathon Division, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
MEMBER LEEDoM, concurring in part and dissenting in part:
I agree with my colleagues that Respondent violated Section 8(a)
(1) and (2) of the Act and that its conduct during the preelection
period was such as to warrant our setting aside the election of June 5,
1963. However, I would direct a new election herein, rather than
issue a bargaining order as my colleagues are doing. For, as I stated
in my separate opinion in Bernel Foam Products Co., Inc.,' I would
retain the Aiello s rule of waiver which the Board abandoned in the
Bernet case . Thus, I would not find a violation of Section 8(a) (5)
herein on the ground that the Union, by allowing the Board to hold
an election with knowledge of the Respondent's unfair labor prac-
tices, thereby waived its right to pursue the refusal-to-bargain
remedy. For this reason, I dissent from that part of the majority
decision which finds a violation of Section 8(a) (5) and directs Re-
spondent to bargain with the Union.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
7146 NLRB 1277.
s Louis Aiello , Benjamin Aiello, et al ., Co-Partners d/b/a Aiello Dairy Farms, 110
NLRB 1365.
TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
Upon a charge filed June 13 , 1963 , and an amended charge filed July 19,
1963, by Textile Workers Union of America, AFL-CIO, herein referred to as
the Union, the Regional Director for Region 3 of the National Labor Relations
Board , herein called the Board , issued a complaint on behalf of the General
Counsel of the Board on August 28 , 1963, against Irving Air Chute Company,
Inc., Marathon Division , herein called the Respondent or Company , alleging
violations of Section 8(a)(1) and ( 5) of the National Labor Relations
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 631
Act, as amended (29 U.S C. Sec. 151, et seq.), herein called the Act. In its
duly filed answer the Respondent, while admitting certain allegations of he
complaint, denied the commission of any unfair labor practices.
Pursuant to order of the Regional Director on behalf of the Board, the proceed-
ing referred to above was consolidated with Case No. 3-RC-3140 wherein a
representation petition on behalf of the Respondent's employees had been filed
by the Union on April 30, 1963, and an election held on June 5, 1963, pursuant
to a stipulation for certification upon consent election by the parties executed
on May 16, 1963; said consolidation being for the purpose of holding a hearing
and taking evidence in connection with certain objections filed by the Union
in respect to conduct affecting the results of the aforesaid election.
Pursuant to notice, a hearing of the consolidated cases was held before Trial
Examiner Morton D. Friedman at Cortland, New York, on November 20 and
21, 1963. All parties were represented and were afforded full opportunity to
be heard, to introduce relevant evidence, to present oral argument, and to file
briefs with me. Briefs were filed by the General Counsel and the Respondent.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, which maintains its principal office in Lexington, Kentucky,
operates a plant at Cortland, New York, the only facility involved in this proceed-
ing, where it is engaged in the manufacture, sale, and distribution of metal
and steel fabricated parts, vending machines, and seat belts. During the
12-month period immediately preceding the issuance of the complaint herein,
a representative period, the Respondent purchased, transferred, and delivered to
the plant involved herein, goods and materials of a value in excess of $50,000,
which goods and materials were transported to said plant directly from States
other than the State of New York. During the same period, the Respondent
manufactured, sold, and distributed from the said plant products of a value in
excess of $50,000 which were shipped from the said plant directly to States
other than the State of New York.
Upon the foregoing conceded facts, it is admitted, and I find, that the Respond-
ent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and I further find that it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO is conceded to be a labor organi-
zation within the meaning of the Act and I so find.'
III. THE ISSUES
1. Whether the Respondent, through its officers and supervisors, made threats
and promises of benefit to its employees in a manner constituting interference,
restraint, and coercion in violation of Section 8 (a) (1) of the Act.
2. Whether the Respondent dominated and interfered with the formation and
administration of the Elected Committee for Employee Representation.
3. Whether Leadmen John Gofgosky and Wayne Lee were supervisors within
the meaning of the Act.
4. Whether the Union represented a majority of the Respondent's production
and maintenance employees at the critical period herein
5. Whether Respondent, by engaging in the conduct with which issues 1
and 2 are concerned, did so in order to undermine the Union and destroy its
majority and thereby refused to bargain in good faith.
6. Whether the Respondent can be found to have refused to bargain and
whether the Union can be found to have represented a majority of the Respondent's
' The complaint recites the formation of the Elected Committee for Employee Repre-
sentation. This organization never functioned as a labor organization although It was
formed to the extent that representatives thereto were elected by the employees of the Re-
spondent It is carried in the title to this proceeding only for the purpose of identification.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in view of the fact that after the alleged coercive conduct and alleged
domination of the formation of the Employees Committee , the Union participated
in and lost a Board-conducted representation election.2
IV. THE UNFAIR LABOR PRACTICE PROCEEDING
A. Background-sequence of events
Upon a contact established by employee Cleo Fear, the Union , through James
E. Ryan , International representative , began organizational activities among the
Respondent 's employees on April 5, 1963. On April 25 Ryan sent a telegram
to the Respondent 's Marathon Division 's business manager, G. D. Wallace, request-
ing recognition and suggesting two alternate dates for negotiation meetings.
Wallace, who did not see the telegram until April 29, and who had just received
word of the death of his mother , wired that he could not meet with Ryan
on either of the suggested dates but would be able to meet with Ryan on
May 6. On April 30 Ryan wrote Wallace a letter to the effect that he was
sorry to hear of Wallace's mother's death but that due to the delay caused
by this, Ryan was going to file a petition for representation with the Board. Ryan
did file a petition on that day . Wallace did not see that letter until he returned
to Cortland on May 6. On that day he informed Ryan , by telephone, that
he could not meet with Ryan until such time as his principals were informed
and he could receive instructions concerning the representation petition. Ryan
stated that he was not concerned about having a meeting on that date but
that he was more interested in getting recognition . In his letter of April 30
to Wallace, Ryan also explained that the representation petition would be with-
drawn in the event the parties came to an amicable bargaining agreement. In
any event , after May 6 neither of the parties contacted each other and no bargain-
ing meetings were ever held.
On May 16, 1963, a stipulation for certification upon consent election was
executed by the parties and another union which had meanwhile intervened.3 Pur-
suant to the said stipulation , an election was conducted by the Board on June 5,
1963 . The tally of ballots of that election shows that of approximately 93 eligible
voters, 89 cast ballots of which 34 were for the Union , 48 were against the Union,
and there were 7 challenged ballots. Accordingly, the Union lost the election.
However, on June 10, 1963, the Union filed timely objections to conduct affecting
the results of the election . Three days later the Union also filed the original charge
upon which the complaint in this proceeding is partially based.
On July 22 the Regional Director issued his report on objections , in which
he found that a number of the objections did not raise any material issues regarding
conduct affecting results of the election , and he therefore recommended to the
Board that these objections be overruled. He further recommended that since
two objections , Nos. 3 and 4 , raised the same issues as are raised in the present
proceeding , a hearing should be held on these objections and that the hearing
be consolidated with the present proceeding . Accordingly, when the complaint
herein was issued it was issued as a consolidated matter along with the objections
proceeding in the representation case.
The two objections on which the Regional Director recommended hearings
were that the Respondent offered Cleo Fear a job as a foreman if he would
not work so hard trying to get the Union into the shop . Objection No. 4,
the second objection on which hearing was recommended , was that the Company
held meetings at its plants after the Union petitioned wherein it called upon
the employees to form a committee of employees of the shop , instead of having
a union. These objections will be treated hereafter and be disposed of in accord-
ance with the manner in which I dispose of the allegations of the complaint
similar thereto.
The period between the filing of the petition and the election was the time
during which the alleged events which allegedly constitute unfair labor practices
took place. It is with these events with which we are concerned in this unfair
labor practice proceeding.
2 See Lowey Aiello, Benjamin Aiello, et at., Co-Partners d/b/a Aiello Dairy Farms, 110
NLRB 1365.
3 United Textile Workers of America, AFL-CIO, not Involved herein.
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 633
B. The supervisory status of John Gofgosky and Wayne Lee
Because John Gofgosky and Wayne Lee were allegedly involved as representa-
tives of Respondent's management in the distribution and circulation of the petition
and ballots with regard to the Elected Committee for Employee Representation,
herein called the Committee, a threshold issue is whether Gofgosky and Lee
were supervisors at the times of the events in question.
Gofgosky was leadman or group leader of the vending machine department
which had, from April through June 1963, about seven permanent employees.
Gofgosky had formerly been a truckdriver but about the middle of April he
asked to be relieved of that job, and because of his mechanical aptitude he
was placed in the assembly department. His aptitude proved to be so great
that in a short time he was placed in charge of the vending machine department.
According to G. D. Wallace, Respondent's business manager and head manage-
ment representative at the Cortland facility, the Respondent built the assembly
department around Gofgosky.
Beverly Twomey credibly testified 4 that she had been an employee in the vending
machine department from the last part of March or beginning of April to
the last week in September 1963. Twomey received orders and instructions from
Gofgosky who told her what to do. In Gofgosky's absence, Twomey received
her instructions from the manager of manufacturing at the Respondent's plant,
Elwood H. Mathewson. There was no supervisor between Gofgosky and Mathew-
son, who was the chief production man in charge of the entire plant. On
two occasions Twomey desired a raise, and on each occasion she asked Gofgosky
who stated that he would recommend her for a raise. Twomey saw him write
out recommendation slips at each request. She ultimately received these raises.
The first time she received the wage raise, it was Gofgosky who informed
her that she was getting it and the second time Mathewson told her.
In the vending machine department, the employees do not do the same job
from day to day but are shifted from job to job depending upon the flow
of work and the necessary skills involved. Gofgosky was the individual who
assigned the employees to the jobs which they were to do at any particular
time. When Twomey was in need of instruction or in need of assistance, she
would ask Gofgosky. Upon occasions she was temporarily placed in other depart-
ments and it was either Gofgosky or Mathewson who told her to report elsewhere.
When employees from other departments were assigned to the vending ma-
chine department to help out, Gofgosky assigned them to their work and told
them where to work and what to do. When new models of machines were
to be fabricated in the vending machine department, Gofgosky worked with
the plant engineer to get the machines set up. After that he instructed the
other employees in what to do on the new operation.
When Twomey desired time off for any reason, she went to Gofgosky for
permission. Although she called into the office when she was out sick, when
she returned to work the next day Gofgosky asked her why she was out. More-
over, time slips are kept on the job for each piece of work as it is produced. These
slips were given to Gofgosky who made notations thereon. Gofgosky also showed
Twomey and other employees customer complaints so that corrections could be
made in the manner in which the work was being done.
When Gofgosky first came into the department, both Gofgosky and Mathewson
told Twomey that Gofgosky was going to be the boss. She also received
safety instructions from Gofgosky and, when a new employee, Leroy Henry,
was assigned to the department, it was Gofgosky who instructed him and trained
him in his various work. At times when things were slow in the department
and there was no specific work for the employees to do, Gofgosky would either
find something for them to do in the department such as taking inventory
or cleaning up, or he would find work elsewhere in the shop for the employees.
4 From my observation of Twomey, I have concluded that she is a credible witness. More-
over, none of her testimony was seriously refuted by any of the Respondent's witnesses. In
fact, her testimony was very similar to that of Wallace and Mathewson with regard to
Gofgosky's supervisory authority and the emphasis really is on interpretation rather than
on differences in what Gofgosky actually does on the job. Moreover, Gofgosky, who testi-
fied for the Respondent, did not testify with regard to his duties in the shop and, accord-
ingly, would have been the most appropriate individual to have refuted Twomey's testi-
mony. Accordingly, I credit Twomey.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gofgosky usually ate his lunch in the office or around the dock and normally
ate with Supervisors Art Payne, Elwood Mathewson, Bob Ervin, and sometimes
G. D. Wallace. Moreover, Gofgosky told Twomey that he attended management
meetings. , Gofgosky was also in charge of requisitioning supplies and would in-
struct Twomey to make out requisitions when needed. When the requisitioned mate-
rial came into the department, Gofgosky was the one who had to sign for it.
Twomey admitted that she knew that Gofgosky did not have the authority
to give her a raise but she knew that he did have the authority to recommend
such raise. As far as Twomey knows, Gofgosky never hired nor ever fired any-
body. However, Twomey was sure that Gofgosky had the right to discharge anyone
who was not performing his work. This was based on the fact that she had
observed him and heard him threaten employees who did not perform properly.
With regard to Wayne Lee, Cleo Fear credibly testified 5 to facts quite similar
to the testimony of Beverly Twomey with regard to Gofgosky. Thus, Fear
testified that Lee had given the people in Lee's department orders ever since
Fear had been an employee in that department, which covered a period of 3
to 4 years. When Lee was not present, Mathewson gave the employees orders.
When Fear wanted time off he received permission from Lee. Once he was
transferred for 3 or 4 days to the processing department and it was Lee who
ordered him to go over to that department. When he wanted a raise he asked
Lee for it. If he had any difficulty with his work or needed instruction or
assistance, he went to Lee for such help. He had also observed Lee instructing
other employees in the same manner in which he instructed Fear. If there was
something wrong with the work that came into Lee's department and Fear's
fixtures would not fit, he called Lee and Lee would go to the responsible depart-
ment to have the error corrected. Lee also checked Fear's timecards and checked
the timecards of other employees in the department. When extra employees came
into the department they were assigned their work by Lee. When Fear was
asked to work overtime, Lee would give him the instructions to do so. Fear
was a top ranking employee in the department and he made $1.95 an hour
whereas Lee's hourly rate was $2.40. When there were rush jobs to be done
in the parts department, it was Lee who rearranged the work so that the rush
job could be given priority. If safety regulation violations occurred, it was
Lee who instructed the men to obey them. When work was slow in the department
Lee would assign the men to different jobs such as cleaning up the area and
so forth. Sometimes Lee assigned the men to unload steel and sometimes he
would send Fear and other employees out of the building on errands. Lee
ordered all the supplies for the department and when the supplies came in,
Lee signed for them. When there was a breakdown in the department, Lee
ordered repairs for the same or else did the repairs himself
About a year and a half before the hearing herein, a notice was posted
on the department bulletin boards stating that Wayne Lee was the head of
the drilling, grinding, and straightening department, the department in which
Fear worked. Fear admitted that approximately half of Lee's day was spent
in actual production work by Lee. He knew that Lee had to get permission
from somebody else to get a raise in salary for any of the men but it was
Lee who made the recommendation.
Lee admitted that in the month of June, the critical period herein, there were
four and five employees working regularly in the drill press department. He
usually instructed the employees on what to do in the department although
they were all responsible for getting the work out. Lee also admitted that
about a week before the hearing, he attended a party at the Cortland Hotel
with Business Manager Wallace, Manufacturing Manager Mathewson, and other
group leaders including John Gofgosky and Art Payne. He felt that the Com-
pany had paid for the function. Lee admitted that if the employees in the
drill press department wanted time off or if they were sick or simply wanted
to go home they would ask Lee. When it came time to lay off employees,
Cleo Fear for example, he discussed the matter with Mathewson. Their discussion
concerned the type of work which was coming in and who was the best man
to do that type of work. Accordingly, therefore, Lee did participate in making
5 1 credit Fear's testimony insofar as it concerns the duties of Lee as Fear observed
them. Although in other parts of this Decision I discredit Fear's testimony, I credit this
portion of his testimony for the reasons that his testimony , to a great extent , is similar to
the testimony which I have already credited of Beverly Twomey. Moreover, the statements
of Wayne Lee himself, with regard to his duties and authority in his position as leadman,
lead me to believe that Fear 's testimony in this respect is quite accurate.
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 635
this management decision . When he was working under Art Payne in June,
he told Art Payne that a couple of employees, Gilligan and Comfort, wanted
a raise. Gilligan and Comfort received that raise. When extra employees come
into the department, Lee shows them how to run the job or takes them over
to another one of the regular employees and instructs the regular employees
to help the new man. When he received his job as leadman, he was told by
Mathewson that his decision would usually be honored. He admitted further
that if the employees generally work at different jobs and if there is no work
in one function, he assigns them to another. These shifts in assignments are
based upon the operation sheets that come into the shop. If more than one
person is needed to do a specific job, Lee assigns the extra person to the job. He
also admitted that if there was overtime work to be done he would probably
determine who would work overtime.
Art Payne, who for a time was supervisor over Lee, testified that the leadmen
were merely the most qualified men in each of their departments. He stated
that he would tell Lee what instructions to give the people each morning and
he would tell him what jobs had to be done for that day. If any change
occurred throughout the day he would come to Lee's department and tell Lee
about it.
Payne's testimony, in sum, if standing alone, would lead to the conclusion
that Lee and the other leadmen were merely conduits for instructions from Payne.
However, Payne admitted that he, himself, knew nothing about drilling and
tapping and that Lee was the man who knew his department. Lee assigned
the work to the individuals working in the department and looked over the
jobs to make sure they were properly performed since he was the man who
knew the most about them.
Mathewson, the manager of manufacturing, stated that by leadman he meant
the best man in the department. He is chosen for his quality and his attitude.
Each leadman reports directly to Mathewson.
Maurice Kinner, an employee, testified credibly that on April 29 he asked
Mathewson if the latter considered the leadmen, Wayne Lee and John Gofgosky
among them, as assistant foremen or supervisors. Mathewson told him that
if Bob Harding, one of the leadmen, told Kinner to do some work and Kinner
disregarded Harding's orders and Harding then recommended that Kinner be
let go, Kinner would be discharged.
The Respondent contends, on the basis of the testimony in the record, that
Lee and Gofgosky are leadmen who are very little higher in rank than the
employees with whom they work and who have no supervisory authority and
are, accordingly, not supervisors. I do not agree. It is evident from the credited
testimony and from the admissions of Lee, Payne, and Mathewson that Gofgosky
and Lee responsibly direct the work of the employees in their departments it
is clear that they effectively recommend raises and independently make assignments
and transfers. It would seem that from the manner in which they direct the
employees that they exercise independent judgment in doing so. They also inde-
pendently grant time off. Though both Lee and Gofgosky perform production
work, their duties include not only production but also the overseeing, on a
regular basis, of the work of the employees in their departments. In this capacity
they are required to check the work and instruct the employees on how to
perform it and they are responsible for seeing that the orders of Mathewson
are carried out. Moreover, the employees themselves, as in the case of Kinner,
were told by Mathewson that they had to obey the instructions of the leadmen.
Accordingly, I conclude and find that both Wayne Lee and John Gofgosky
are supervisors within the meaning of the Act.G
C. Interference, coercion, and restraint
1. The facts
Maurice Kinner, an employee in the painting department and an active union
adherent, was engaged in conversation on the morning of April 28 by John
Payne, now a leadman, but at that time a foreman and an admitted supervisor. As
Kinner was leaving the paint area to go elsewhere in the course of his work,
Payne said to him, "What are you trying to do get yourself fired?" Kinner
asked Payne why the latter made this remark and Payne told him that he could
see that Kinner was carrying union literature in his pocket. There were some
0 Crimptex , Inc., 145 NLRB 452.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pamphlets in Kinner's pocket which he had received the night before at a union
meeting where he had signed a union authorization card. Then Payne told
-Kinner that he could not see any reason why the employees should pay a big
fat man, sitting behind a desk smoking a cigar, just to collect dues. He also
Told Kinner that there was a possibility that the plant might move to Kentucky
as the Company had a plant there. He mentioned the fact that Smith-Corona,
which had a plant in the vicinity of Cortland, might move if the Union came
into the Smith-Corona plant.7
Kinner was engaged in still another conversation, this time with Plant Manager
Elwood Mathewson, which conversation took place on April 29, also in the
paint department. No one else was present at the time as was the case in
the conversation with Payne. Kinner asked Mathewson if the latter considered
the "den mothers" [the term used by the employees for the group leaders or
leadmen] to be assistant foremen or supervisors. Mathewson said to him "I'll
tell you just how I feel about this; if Bob Harding [one of the leadmen],
told you to do some work and you told him to go soak his head and he
came back and recommended that we let you go we would let you go." Then
Mathewson said that he had orders to go into the shop and find the agitators
for the Union and fire them. Kinner told Mathewson that he was all for the
Union so that Mathewson could take the guessing out of Kinner's status at
any rate. The conversation continued to the effect that Mathewson said that
probably the whole paint department was for the Union and Kinner said they
probably were. Then Kinner asked Mathewson whether there would be any recrim-
ination by the Company and Mathewson answered in the affirmative and that
Mathewson did not think the Company was too happy over the situation. The
conversation concluded with Mathewson asking Kinner not to repeat anything
that had occurred during the conversation.8
Another alleged incident is one involving Plant Manager Mathewson and
employee Cleo Fear. This incident allegedly occurred in May 13 at a bar and
restaurant known as Melody Land located near the plant. It would seem that
it was habitual for a group of people from the plant, including some management
representatives and some rank-and-file employees, to meet at the Melody Land
after work for a social gathering. On the particular date in question, Fear
arrived about 4 p.m. with another employee, Harold Wells. Fear and Wells
were joined at the table by a Mr. Lou Popilarski, a union representative. Fear
denied that he and Popilarski talked about the Union. However, Wells, who
was there at all times , testified that the conversation did evolve around the Union
and around the employees' union activities in the plant. Although Fear testified
that they did not discuss the Union, he could not remember what was the subject
of conversation while Popilarski was present.
'From the credited testimony of Maurice Kinner. Payne did not completely deny this
episode but testified rather that Kinner had a brochure in his pocket that was sticking out
and Payne asked Kinner what he had Kinner explained that it was some kind of a union
brochure or something pertaining to the Union, according to Payne Payne then told
Kinner, "Welt, you might get yourself in trouble," or something similar Payne stated
emphatically that this was all that there was to the conversation. I had the opportunity
to observe both Payne and Kinner. I believe that Kinner's version of the incident is the
more credible one Actually, Payne's version does not completely contravert the version
of Kinner. As I assess the two individuals and the incident as I believe it occurred, I find
that Payne was holding back on his version of the conversation and I therefore conclude
and find that Kinner was the more reliable of the two witnesses in this respect
8 From the credited testimony of Maurice Kinner. I have heretofore credited Kinner and
stated that I regarded him as a reliable witness. Although I elsewhere credit Mathewson,
I do not credit Mathewson' s denials that he ever had a conversation with Maurice Kinner
telling the latter that he had been instructed to seek out the agitators for the Union and
fire them. However, Mathewson did admit having a conversation with Kinner in the paint
booth in which Kinner asked whether lie should take orders from Group Leader Bob
Harding Mathewson told Kinner, according to Mathewson, that the latter should take
orders from Group Leader Harding From my observation of these two witnesses as they
testified to this particular incident, I find that Kinner is the more reliable witness, es-
pecially in view of the fact that Mathewson did admit to part of the conversation at the
least The Respondent argues that Kinner's testimony could not have been reliable because,
as a matter of fact, no one was discharged However, the mere fact that the Respondent
did not follow up on the alleged threat or that no one was discharged thereafter for union
activity does not render Kinner's testimony unreliable.
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 637
While Fear, Wells, and Popilarski were engaged in conversation, Wallace and
Mathewson, respectively the Respondent's business manager and production man-
ager, entered the restaurant and joined in the conversation. Popilarski left and
Fear also left for a short time, to return with his wife. There was some conversa-
tion about a "committee," as hereinafter set forth in more detail, and as the
evening wore on the participants imbibed and conversed. Finally, sometime be-
tween 9:30 and 10 p.m., when the party had gotten up from the table, and
had lined up at the bar of the restaurant, according to Fear, Mathewson told
him that they were going to open up a new "300 cook machine line" in the
near future in the plant and Mathewson said that Fear would make a good
foreman for it. He said that Fear was considered a leader up there and a
darn good worker. According to Fear, Mathewson said, "You can have this
if you do not work so hard for the Union."
Mathewson denied that he made such a statement to Fear. As a matter of
fact, he denied that anything with regard to the Union was said that evening.
Harold Wells, the other employee who came to the restaurant with Fear, testified
that he was with the group all evening except when he had to excuse himself
for short periods of time. He never heard Mathewson offer Fear a job or a
promotion. However, he did hear Mathewson tell Fear he did not have to work
so hard for the Union.
Wayne Lee testified that on the morning after the meeting at the Melody
Land Restaurant, Fear said to Lee "I guess the Company is getting pretty
worried. I got offered a foreman's job last night." When Lee asked by whom
Fear answered, "Buzz," the nickname for Wallace, general manager of the Re-
spondent's Cortland facility. Lee told this to Art Payne. Payne, in his testimony,
confirmed that he had a conversation with Lee in which Lee told him that
Cleo Fear was offered a foreman's job by Wallace. Payne testified that he told
Lee that he did not believe it and thereafter went to Mathewson who then
laughed and told Payne that if Payne wanted to he could speak to Wallace. Payne
then went to Wallace and Wallace denied to Payne that any such statement
was made to Fear.
The Respondent contends that this incident never occurred as related by Fear. I
agree with the Respondent. In the first place, there are two obvious weaknesses
in Fear's testimony. The first one is that on the following day he told Lee
it was Wallace rather than Mathewson who made the promise of the foreman's
job to him. Secondly, Harold Wells, who was called as a witness by the General
Counsel and upon whom the General Counsel relied in certain respects, was
also called by the Respondent and testified that he could remember that there
was union talk at the table, that he heard Mathewson tell Fear not to work
so hard for the Union but he did not hear Mathewson state to Fear that he
would give him a foremanship if he did not work too hard for the Union. Accord-
ingly, I find that Wells was present at the same time that Mathewson had
the conversation with Fear, despite the fact that Fear testified that they were
alone at the bar when this conversation occurred. This being so, and from
my observation of Wells, I conclude that all that Mathewson told Fear was
that he should not work so hard for the Union.9 From my observation of
Fear, Mathewson, and Wells, I conclude that Mathewson's denial that he made
any statement of any type to Wells that evening including that Fear should
not work so hard for the Union, cannot be credited. I also find that Fear,
whom I credit only in other places in this Decision where he is supported by
reliable witnesses, cannot be credited insofar as this incident is concerned . Accord-
ingly, I find that Mathewson did not make a promise to Fear to give the
latter a promotion.
2. Concluding findings as to interference, coercion, and restraint
It requires no citation to substantiate a holding that a threat of reprisal to
an employee for his union activity constitutes interference, coercion, and restraint
within the meaning of Section 8(a)(1) of the Act. I find therefore that Payne's
statement to Kinner to the effect that Kinner could get himself discharged for
carrying union literature, along with Payne's statement that the Company might
move the facility to Kentucky and that a similarly situated plant might also
9 This statement is not claimed to be a threat of any kind against the employee's organi-
zational attempts and is not alleged as a violation of the Act
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close down if unionized, constituted unlawful threats of reprisal against the em-
ployees that those who engaged in union activities would be discharged and
that if the Union was successful the plant would be closed down
I find in the same category the conversation between Kinner and Mathewson
on April 29 in which Mathewson told Kinner that he had orders to go out
into the shop and find the agitators for the Union and fire them. This is
obviously a threat of reprisal that union adherents and those who actively cam-
paign for the Union were in danger of losing their jobs as reprisals therefor.
Accordingly I find that both of the foregoing incidents constitute interference,
coercion, and restraint within the meaning of the Act and violations of Section
8(a) (1) thereof.
With regard to the incident at the Melody Land Restaurant although I have
heretofore found that the alleged promise by Mathewson to Fear for a foreman's
position was never made, I nevertheless note that by the time this alleged promise
had been made all of the parties including Mathewson, Fear, Wells, and Wallace
had been indulging for approximately 6 hours in alcoholic beverages. None
of the individuals had had dinner. In normal human experience even drinking
fairly light alcoholic beverages all evening would certainly have lent some jovial-
ity and conviviality to the party. Therefore, I find, as substantiated by Fear's
own admission, that even if the promise was made by Mathewson to Fear, it
could not have been made in any other than a purely jovial circumstance under
which Fear could not have taken the promise seriously. This being so, under
the circumstances herein and in view of the type of situation in which the remark
allegedly was made, I cannot find it to have been a promise of benefit such
as the Board has found to be violative within the meaning of Section 8(a)(1)
of the Act. I will, therefore, recommend that the portion of the complaint
alleging this as a violation be dismissed.
D. The Committee
1. The facts
As noted above, on April 25, 1963, the Union made its request for recognition
upon the Respondent and on April 30 filed a petition for representation with
the Board. Thereafter, on May 13, the Respondent's business manager , Wallace,
had a discussion, as heretofore set forth, with certain employees at the Melody
Land Restaurant. Wallace could not remember the details of the conversation
and did not remember whether the term "shop committee" was used in the
conversation. The most he said in the conversation, according to Wallace, was
that the Respondent had never refused to talk to any group of employees or
any individual employee. However, Harold Wells, whom I have heretofore cred-
ited, testified that at that discussion at the Melody Land Restaurant, Wallace
said something about having "a committee going in the shop instead of having
an outside union." Because Wallace merely could not remember and because
Wells, whom I have found to be a very forthright and dependable witness,
stated that Wallace did mention the term committee, I find that Wallace did
mention the formation of a committee at the Melody Land Restaurant on May 13.
Thereafter, on May 17, Wallace gave a speech to his assembled employees. In
this speech Wallace severely criticized the Union for the tactics it used in filing
a representation petition when the delay was caused by Wallace's mother's death.
Also in the speech Wallace stated to the employees:
I don't see why a small group of employees, who could represent all
of you, couldn't work together with management without bringing in outside
interference. We all make mistakes but we would like to be told about
them. We don't like to receive a telegram telling us of them. A talk every
week or every 2 weeks between management and a group representing the
employees would be welcomed 1°
Wallace held a second meeting with the employees on May 29, 1963. In
that meeting he addressed the employees and told them the reasons why he
thought the employees should not join or support the Union. None of this
is alleged as being violative. However, during that speech he told the employees:
io This speech was reproduced at the time it was made and there is no contention that the
above quotation is not an exact quotation from Wallace' s speech.
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 639
I see no reason why we can't deal with our own problems without
outsiders. We could get together periodically, either singly or in a group
to discuss our problems. Some folks need someone to talk to them, perhaps
a group could be approved by you to meet with management."
At the May 29 meeting, employee Kenneth Clark told Wallace that he, Clark,
had a petition signed by some 50 employees in the shop which he wished to
give to Wallace and would like to know what the Company wished to do
about it. Wallace answered that with that many signers he was quite sure the
Company would recognize the petition. Clark gave him the petition at that
time. Clark was the employee, along with employee Clead Warner, who brought
about the drawing up and circulating of the petition. Clark was motivated
to do this because at the first meeting, May 17, Maurice Kenner asked Wallace
what would happen if the management refused to meet with the Committee. Wal-
lace stated that there would be no question in his mind that the Company
would meet with such a committee if they could iron out their troubles that
way. Then Wallace said that a group of the employees, or if the hourly em-
ployees, would want to sit down and discuss their problems with management,
management would recognize these employees.
Thus it was for these reasons and because of Wallace's suggestion, that Clark,
together with Warner, drew up a petition for the formation of the Commit-
tee. The petition was drafted on May 20 and after it was drawn up it was
brought to the inspection department where Warner and Clark both worked. Per-
sons interested in signing the petition came to the inspection department and
signed it. However, before Clark placed the petition in his department to obtain
signatures, he spoke to Leadman Ralph Harper, whom I find to be a supervisor
within the meaning of the Act for the same reasons that I have found Wayne
Lee and John Gofgosky to be supervisors, for permission to have the petition
in the department and to have the employees sign it during working hours. Also
during the course of that day, Plant Superintendent Mathewson came into the
department and Clark also talked to him about it. Mathewson told Clark that
it could be kept in the inspection department for the employees to sign if they
cared to. However, he told Clark that the signing had to be done in a manner
which would not interfere with production. Therefore, the petition was signed
during working time if it was possible or during the smoke break at 10 a.m.,
during the noon hour, and during the smoke break at 2 p.m. This petition
was kept in the inspection department and placed in Clark's toolbox each evening
until May 29, the day on which Clark gave the petition to Wallace.
Upon Wallace's statement that the Company would "quite surely" recognize
the petition , Clark and Warner went about getting nominations for membership
on the Committee. They decided that the Committee should be made up of
the hourly production and maintenance employees at the shop and the purpose
was to meet with management regarding seniority rights, hourly rates, and
other working conditions. Nominations for the Committee were prepared begin-
ning June 11. Clark took a paper, upon which the names of prospective nominees
were to be placed, to the drill press department and gave it to Wayne Lee
who was in charge of that department. Lee agreed to circulate the paper in
his department and instruct the employees to place their choices thereon, in
other words have the employees nominate the prospective committee members
Lee also agreed to pass it on to the next department after the employees in
his department had had a chance to put down their choices for nomination. Also,
before Clark began to circulate the nomination slip in his own department,
Harper, his leadman, gave him permission to do so providing it did not interfere
with production.
After the paper containing the names of the nominees was circulated throughout
the shop it came back to Clark, who took the names into the Respondent's
office and spoke to Robert Irvin, who was admittedly a supervisor in the Respond-
ent's office. Irvin agreed to have a ballot typed and prepared so that it could
be run off. Thereafter, Irvin took the typed copy of the ballot to the tool
crib and had the ballot run off on a duplicating machine.
After the ballots were run off, Clark spoke to Harper and received permission
to pass the ballots out in such a manner that they knew each employee would
receive one ballot. After the ballots were passed out and marked, they were
"As in the case of the first speech, this speech was recorded and there is no dispute as
to its contents.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed in a ballot box on the wall beside the tool crib. The ballot box was
left there for the day of June 12 and during that evening in order to give
the night-shift employees a chance to vote. The ballots were counted the next
day, June 13, and Ralph Harper, leadman , and Azel Keller, an employee, counted
the ballots.
On June 14 Kinner and Clark spoke to Irvin again and asked if they could
have a notice typewritten by one of the office employees and have such notice
placed on the bulletin board. Irvin agreed to do this. The notice informed
the employees about the Committee and informed the employees that if they
had any suggestion which they would like to make to the Committee they
could deposit such suggestions in the ballot box which was left on the wall
near the tool crib. This notice was typed at Irvin's direction by one of the
office workers.12
Also, with regard to the circulation of the petition for the Committee, John
Gofgosky, group leader of the assembly department, actually handed the petition
to the employees in his department for their signature.13
It should be noted that Clark admitted, in testifying to his activity in the
formation of the Committee, no one ever specifically instructed him to proceed
with the formation of a committee. Moreover, Clark also admitted that at prior
times, for other personal matters, he had gone to Irvin, the office supervisor,
and had had a map reproduced for the town of which he had then been the
mayor and also had had some work reproduced for the church of which he
was a member. It would be safe to conclude from the foregoing, therefore,
that the Respondent lent its services to its employees for various reasons from
time to time. Also in connection therewith, the record shows that the bulletin
board on which a number of items were posted, including the item with regard
to the Committee, was generally used by the employees and by the Respondent
for posting all types of notices pertaining to the business and pertaining to
other matters outside the business such as coming social affairs, church parties,
and so forth.
It should be further noted that although Wallace inferred at the May 29
meeting, when he accepted the petition from Clark, that the Respondent would
most likely recognize the Committee, in fact, recognition was never extended.
The Committee never did function as an active labor organization and at the
time of the hearing herein, only two members of the Committee were
still employed by the Respondent, Clark evidently being one of them.
2. Concluding findings with regard to the Committee
It is apparent from the credited testimony of Clark heretofore recited, that
the idea for the formation of the Committee was planted by Business Manager
Wallace, both in his speeches to the employees on May 17 and 29 and by his earlier
suggestions directly to employees on May 13 at the Melody Land Restaurant. It
is also clear that the Respondent, through Supervisor Irvin, assisted in the mechani-
cal operations necessary to the formation of the Committee, by granting to
Clark the right to have the ballots printed and the notice to the employees
printed on the Respondent's office typewriters and reproduced on the Respondent's
duplicating machine. Further assistance was lent the Committee by Superintend-
ent Mathewson, when he permitted the circulation of the petition for the Commit-
tee within the plant provided it did not interfere with production. Then, actively
participating in the circulation of both the petition and the ballots were Supervisors
and Leadmen Wayne Lee, John Gofgosky, and Ralph Harper. It is also clear
12 All of the foregoing is from the testimony of Kenneth Clark Clark impressed me as
a forthright and honest individual. None of his testimony was seriously controverted by
any of the Respondent's witnesses. Accordingly, from my observation of him and because
of the lack of any real contention as to Clark's activities and motivations during the com-
mittee formation period, I credit Clark's testimony Cleo Fear testified additionally that
on May 29, when Clark gave Wallace the petition, Wallace said, "it looks like somebody
took me up on my suggested committee" I do not credit this testimony of Fear for the
reason that, as heretofore stated, I do not find that Fear's testimony is reliable in general
Moreover, I find Clark to be a most reliable witness and he did not mention this alleged
statement of Wallace.
"From. the credited testimony of Beverly Twomey. This testimony was supported by
Gofgosky's admission that he signed the petition for the Committee although he also testi-
fied that he did not receive instructions to do so from either Wallace or any of his other
superiors.
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 641
that the suggestion for the Committee and the assistance given it by the Respond-
ent's various supervisors followed closely upon the heel of the Union 's request
for recognition and the following representation petition . It also followed very
closely the execution of the stipulation for consent election upon which the repre-
sentation election was based.
Accordingly , I find that by suggesting the formation of the plant Committee,
by giving support and assistance thereto, even though the Committee did not
function nor did the Respondent recognize it, the Respondent violated Section
8(a)(2) and (1) of the Act.14
The General Counsel contends that the Respondent more than assisted the
formation of the Committee and did, indeed , dominate the said organization. I
do not agree with this contention and shall merely find that there was assistance
for the reason that, as noted above , in the first place, the Committee evidently
has never functioned to any extent whatsoever and recognition was never granted
it by the Respondent . Moreover , there was no showing that the Respondent
in any way dictated the policy of the Committee , the members of the Committee,
or the matters upon which the Committee should negotiate with the Respond-
ent. I therefore find that the Respondent's relationship with the Committee
did not constitute domination.15
E. The alleged refusal to bargain
1. The appropriate unit
It is conceded, and I find, that all production and maintenance employees,
including truckdrivers, employed at the Respondent's Marathon Division, at Cort-
land, New York, but excluding all office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9(b)
of the Act.
2. The majority issue
As noted above, on April 25, 1963, James Ryan, the Union's international
representative, made a written demand by telegram upon the Respondent for
recognition in the unit heretofore found to be appropriate for collective bargain-
ing At that time Wallace was away from his office and did not see or learn
of the telegram until he returned on April 29. However, the occurrences between
the dates of April 25 and 29 are critical to the Union's majority status. At
the time that Ryan made his request for recognition, he had in his possession
44 union authorization cards signed by employees in the bargaining unit.16 On
April 27 Ryan obtained 5 additional cards which brought the total of cards
in his possession up to 49 and Ryan thereafter, by April 29, obtained 4 more
cards, making a total of cards in Ryan's possession on April 29 of 53. As
of that time there were in the Respondent's employ in the unit found appropriate
93 individuals less employee Stover which made a total of 92, less Supervisors
Wayne Lee and John Gofgosky. Thus there were 90 employees in the unit
during the period from April 25 through 29 and on April 29, the Union had
a total of 53 cards. Since the demand was a continuing one and since it was
renewed again on May 6 in Ryan's telephone conversation with Manager Wallace,
it is apparent that at the critical times the Union had in its possession sufficient
cards to establish majority status.17
14 See Mary Chess, Inc., et al ., 145 NLRB 1200, Philainon Laboratories, Inc, 298 F. 2d
176 (CA 2).
15 See Canlake Petroleum Corporation, 121 NLRB 1527.
16 Ryan also had cards from two employees who had left Respondent's employ without
Ryan's knowledge before the request for recognition was made For the purpose of com-
puting status, the cards of these employees, Stover and iZmmer, are not included in the 44.
17 The Respondent introduced evidence to the effect that Cleo Fear had threatened em-
ployee Rexford Lord with loss of his job if he did not sign a card I find that Lord, who
testified with regard to this threat, and Warren Smith, who supported Lord's testimony,
were credible witnesses and that this event actually did occur However, even with Lord's
and Smith's cards deleted from the total of 53, the Union would have had 51 cards which
would have been more than enough to establish the Union's majority Moreover, I do not
find that the threatening of Lord, as overheard by Smith, was sufficient to have tainted
enough of the cards to have affected the Union's majority showing.
770-076-65-vol. 149-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that the Union represented a majority of Respondent's
employees in the unit hereinabove found to be appropriate at all times during
the period from April 23 through at least May 6, 1963, and that therefore,
at all times that the demand and the continuing demand were made , the Respond-
ent was such majority representative.
3. Concluding findings as to the refusal to bargain
The Board has held that an employer violates Section 8(a)(5) of the Act
when it insists on a Board election as proof of a claiming union's majority
and where such insistence is motivated not by any bona fide doubt as to the
union 's majority, but rather by a rejection of the collective- bargaining principle
or by a desire to gain time within which to undermine the union. Whether
an employer who refuses to recognize the claiming union and insists upon an
election is motivated by a good-faith doubt as to the union's majority or by
an intention to destroy such majority can be determined only in the light of
all of the relevant facts of the case, including other unlawful conduct of the
employer and the sequence of the events.18
I find that in the light of all of the facts in this case, that the Respondent's
refusal to bargain with the Union and its insistence upon an election was motivated
not by a good-faith desire to determine the majority status of its employees,
but rather by a desire to gain time in which to dissipate the Union's majority. In
reaching this conclusion, I consider the following: (1) The threats to employee
Maurice Kinner not only by Payne, who was at that time a department foreman,
but also by Mathewson, who was, and is, the head of all the manufacturing
in the Respondent's plant and one of the top management officials in the Respond-
ent's hierarchy at the Cortland facility, and (2) the suggestion for the formation
of a committee by Wallace and the open and notorious activities of the Respond-
ent's supervisory staff in participating in the circulation of the petition and
the ballots, the assistance in the printing of the same, the counting of the
ballots, and the consent to all of this by Mathewson. I conclude that this conduct
was designed for the purpose of inducing the employees in the unit to repudiate
the Union.
Accordingly, I find that Respondent's refusal to recognize the Union was
motivated by a desire to gain time in which to undermine the Union's majority
status, and that such conduct is violative of Section 8 (a) (5) of the Act.19
V. THE OBJECTIONS TO THE ELECTION
As heretofore detailed, the Regional Director referred for hearing the objections
to conduct affecting the election based on (1) the alleged promise to Fear,
and (2) the Respondent's assistance in the formation of the Committee. I have
heretofore found, and concluded, that Fear was not given a promise of a foreman's
position and I shall, therefore, recommend dismissal of objection No. 3, based
upon that alleged incident.
I have heretofore found that the Respondent , through Business Manager Wal-
lace, who suggested the formation of the Committee, Production Manager Mathew-
son, who permitted knowingly the circulation of the petition for the Committee
and the ballots for the election of members, Supervisor Irvin, who had the ballots
and notices printed through the Respondent's facilities, Supervisors Lee and Gof-
gosky, who participated in the circulation of the petition and ballots, and Supervi-
sor Harper, who helped count the ballots, interfered with the formation of the
Committee and assisted it in violation of Section 8(a) (2) of the Act. Since
this activity is, in part, encompassed in the allegations of objection No. 4, I
find that objection No. 4 has merit. Moreover, although not alleged as an
objection, but alleged in the charge and complaint, are the threats to Kinner
by Supervisor Payne and Manager Mathewson which I have heretofore found
to be violative of Section 8(a)(1) of the Act. I cannot ignore the effects
which such threats have upon employees and through normal channels of commun-
ication upon the employee complement with regard to their choice in the election.
is Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D C ), cert. denied
341 US. 914
19 Joy Silk Mills, Inc, supra . In the light of the Board ' s recent decision In the case of
Bernet Foam Products Co, Inc, 146 NLRB 1277, which overruled Louis Aiello, Benjamin
Aiello, et at., Co-Partners d/b/a Aiello Dairy Farms, 110 NLRB 1365, I find no proscrip-
tion against the making of this finding even though the Union chose to proceed with the
election after It learned and knew of the Respondent ' s unfair labor practices.
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 643
Therefore, since the Board has held that such conduct as is heretofore recited
is a fortiori conduct which interferes with the exercise of a free and untrammeled
choice in an election ,20 I shall recommend that the representation election heretofore
held in Case 3-RC-3140 be set aside.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in
connection with the operation of the Respondent as set forth 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.
VII. THE REMEDY
Having found that the Respondent engaged and continues to engage in
certain unfair labor practices , it will be recommended that the Board issue an
order requiring that it cease and desist therefrom, and take certain affirmative
action , including the posting of appropriate notices, designed to effectuate the
policies of the Act, as amended.
Having found that the Respondent had engaged in assisting the Committee
and thereby having violated Section 8(a)(2) of the Act, I shall recommend
that the Respondent cease and desist from recognizing the Committee, and cease
and desist from giving the Committee assistance. However, inasmuch as I have
not found the Respondent to have dominated the said Committee, I shall not
recommend the disestablishment of the Committee. Moreover, as I have noted
above, the Committee has never functioned. With relation thereto, even though
the Committee is no longer active and has never actually been more than a
de facto organization, I nevertheless consider it necessary to order the ceasing
by the Respondent of recognition of the said Committee, inasmuch as the only
way to appropriately remedy this unfair labor practice would be to cease and
desist from recognizing and dealing with either the Committee or any successor
thereof. Accordingly, I shall recommend the usual order granted by the Board
in cases of unlawful assistance.
Having found that the Respondent has unlawfully refused to bargain with
the Union in good faith and has thereby violated Section 8(a)(5) of the Act
I shall recommend that the Respondent cease and desist from refusing to so
bargain, and shall further recommend that the Respondent bargain, upon request,
with the Union and if an understanding is reached, embody such understanding
in a signed agreement.
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. The Respondent, Irving Air Chute Company, Inc., Marathon Division, is
engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Textile Workers Union of America, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By interfering in the formation of the Elected Committee For Employee
Representation, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (2) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. All production and maintenance employees, including truckdrivers, employed
at the Respondent's Marathon Division, at Cortland, New York, but excluding
all clerical employees, professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
20 Playskool Manufacturing Company, 140 NLRB 1417, 1419.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. At all times since April 25, 1963, Textile Workers Union of America, AFL-
CIO, has been the exclusive representative of all the employees in the aforesaid
unit for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment , or other terms and conditions of employment.
7. By refusing on April 25, 1962, 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.
8. 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 entire record in this case , it is recommended that Irving Air Chute
Company, Inc., Marathon Division , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interfering in the formation of, or contributing assistance or support to,,
the Elected Committee for Employee Representation or any other labor organization
of its employees
(b) Threatening its employees with economic reprisal in order to induce the
employees to abandon their support and activities on behalf of the Union.
(c) In any like or similar manner interfering with , restraining , or coercing
its employees in the exercise of their rights to self-organization , to form labor
organizations , to join or assist Textile Workers Union of America, AFL-CIO,
or any other labor organization, to bargain collectively through representatives
of their own choosing , and to engage in concerted activities for the purposes
of collective bargaining 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 in Section 8(a)(3) of the Act, as modified by the
Labor Management Reporting and Disclosure Act of 1959.
(d) Refusing to bargain collectively with Textile Workers Union of America,.
AFL-CIO, as the exclusive representative of its employees in the following appro-
priate unit:
All production and maintenance employees, including truckdrivers, employed
at the Respondent's Marathon Division, at Cortland, New York, but excluding
office clerical employees , professional employees, guards, and supervisors as defined
in the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Withdraw and withhold all recognition from the Elected Committee for
Employee Representation , or any successor thereto, as the exclusive representative
of its employees for the purpose of dealing with them concerning grievances,
wages, rates of pay, hours of employment, or other conditions of employment,
unless and until such organization shall have been certified by the Board as the-
exclusive representative of such employees
(b) Upon request, bargain collectively with Textile Workers Union of America,
AFL-CIO, as the exclusive bargaining representative of the Respondents employees.
in the unit found appropriate with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment , and, if an understanding
is reached, embody such understanding in a signed agreement.
(c) Post at the Cortland , New York plants , copies of the attached notice marked
Appendix.21 Copies of said notice, to be furnished by the Regional Director for
Region 3, shall , after being signed by the Respondent 's representative , be posted by
the Respondent immediately upon receipt thereof, and be maintained by it for 60,
consecutive days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered , defaced , or covered by any
other material.
21 If this Recommended Order be adopted by the Board , the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice In the further event that the Board's Order be enforced by a decree of the-
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."
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 645
(d) Notify the Regional Director for Region 3, in writing , within 20 days
from receipt of this Decision , what steps the Respondent has taken to comply
herewith.22
It is further recommended that paragraph 6(c) of the complaint be dismissed.
And it is further recommended that the election heretofore held in Case No.
3-RC-3140 on June 5 , 1963 , be set aside.
22 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten our employees with economic reprisals for the pur-
pose of forcing them to abandon their support of Textile Workers Union of
America, AFL-CIO.
WE WILL NOT interfere with the formation of, or contribute assistance or
support to, the Elected Committee for Employee Representation, or any other
committee or labor organization of our employees.
WE WILL NOT recognize the Elected Committee for Employee Representation,
or any successor thereto, as the exclusive representative of our employees,
for the purpose of dealing with us concerning grievances , wages, rates of
pay, hours of employment , or other conditions of employment , unless and
until such labor organization shall have been certified by the Board as the
exclusive representative of our employees.
WE WILL NOT refuse to bargain collectively with Textile Workers Union
of America, AFL-CIO, the exclusive representative of our employees in
the following appropriate unit:
All production and maintenance employees, including truckdrivers, em-
ployed at our Marathon Division, Cortland, New York, but excluding
all office clerical employees , professional employees , guards, and supervi-
sors as defined in the Act.
WE WILL, upon request, bargain collectively with Textile Workers Union
of America , AFL-CIO, as the exclusive bargaining representative of Respond-
ent's employees in the unit found appropriate with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment,
and, if an understanding is reached , embody such understanding in a signed
agreement.
WE WILL NOT in any like or similar manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Textile Workers Union of America,
AFL-CIO, or any other labor organization, to bargain collectively through
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 Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All our employees are free to become, remain, or refrain from becoming members
of Textile Workers Union of America, 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 amended Act.
IRVING AIR CHUTE COMPANY, INC., MARATHON DIVISION,
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.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone
No. TL 6-1782, if they have any questions concerning this notice or compliance
with its provision.
Metropolitan District Council of Philadelphia and Vicinity of
the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and its affiliated Local Unions and Charles B. Mahin
Metropolitan District Council of Philadelphia and Vicinity of
the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and its affiliated Local Unions, and said Council's
Officer, Robert H. Gray, Secretary-Treasurer, and Representa-
tives Charles L. Boyer, Edward Kane and Edward Goldstein
and Charles B. Mahin and National Woodwork Manufacturers
Association . Cases Nos. 4-CE-9 and 4-CC-9258. November 12,
1964
DECISION AND ORDER
On February 7, 1964, Trial Examiner Louis Libbin issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. He
also found that Respondents had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
of these allegations. Thereafter, the General Counsel, the Charging
Party, and the Respondents filed exceptions to the Decision and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel 1 [Members Fanning, Brown, and
Jenkins].
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 the case, including the Decision, the exceptions, and the
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondents, Metro-
'Charging Parties' request for oral argument is hereby denied as the record, the excep-
tions, and brief adequately present the issues and positions of the parties.
149 NLRB No. 65.