Lammert Industries

National Labor Relations Board - Board Decisions

May 24, 1977

229 N.L.R.B. 895 (N.L.R.B. 1977)

LAMMERT INDUSTRIES
Lammert Industries, a division of Componetrol, Inc., a
subsidiary of I-T-E Imperial Corporation' and
District No. 8, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO. Cases
13-CA-14147, 13-RD-996, and 13-CA-14811
May 24, 1977
DECISION AND ORDER
On September 30, 1976, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief in support of the Administrative
Law Judge's Decision.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Lammert Industries, a division of Compone-
trol, Inc., a subsidiary of I-T-E Imperial Corporation,
Addison, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order as so modified:
1. Add the following as the second sentence of
paragraph i(p):
I Respondent's name appears as amended at reopened hearing on
February 3. 1976,
2 In his discussion of Respondent's obligation to bargain at its new
facility in Addison the Administrative Law Judge concluded that the
unrepresented group from the old Addison factory was accreted into the
larger represented group from the Chicago plant, a finding which we adopt.
We disavow. however, his statement that, absent the unfair labor practices
herein, an election would have been the proper method of resolving the
"question of representation" raised. For a finding of accretion precludes the
existence of a question concerning representation warranting an election.
Considering our longstanding disavowal of the dictum in Telautograph
Corporation, 199 NLRB 892 (1972), that the filing of a decertification
petition suspends an Employer's bargaining obligation, we disagree with the
position of our dissenting colleagues that Respondent herein may rely on
Telautograph as a defense to its refusal to bargain with the Union beginning
on November 27. 1974.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dr, Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
: Cf. A utoprod, Inc., 223 NLRB 773 (1976), where a panel which included
Member Penello found an 8(aXS) violation based on the company's
229 NLRB No. 128
"Provided, however, that nothing herein shall be
construed to require Respondent to revoke these
benefits or any other benefits which have been put
into effect prior to this Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER MURPHY, concurring:
I agree with my colleagues' finding that Respon-
dent violated Section 8(a)(5) of the Act by refusing to
bargain with the Union as of November 27, 1974. 1
consider it unnecessary, however, to pass on Telauto-
graph Corporation, 199 NLRB 892 (1972), as I would
reach the same result under any view of that case.
Thus, under Telautograph, I would find that a
decertification petition would justify the Employer's
reasonable doubt only if the Employer were aware of
the filing and predicated its refusal to bargain upon
it. In the case at hand, the refusal to bargain
occurred before Respondent was aware of the filing
of the petition.3 In addition, the Administrative Law
Judge found that, prior to its knowledge of the filing
of the petition, Respondent embarked on a campaign
of unfair labor practices. Accordingly, under the
circumstances present herein, Respondent may not
be permitted to rely on the existence of the
decertification petition as a defense to its refusal to
bargain with the Union.
MEMBERS PENELLO AND WALTHER, concurring in
part and dissenting in part:
We agree with our colleagues' disposition of this
case except that we would not adopt the Administra-
tive Law Judge's finding that Respondent violated
Section 8(a)(5) by refusing to bargain with the Union
since November 27, 1974. For on that very day, at a
time when Respondent had not engaged in any
withdrawal of recognition after a decertification petition was filed because
of the context of unlawful conduct. I note, further, that in a recent case
involving a Midwest Piping issue (63 NLRB 1060 (1945)), a panel which
included Members Penello and Walther found an unlawful withdrawal of
recognition although two representation petitions by rival labor organiza-
tions were pending and the incumbent union had received the fewest votes
in a Board-conducted election as to which objections had been filed and
were still pending. Turbodyne Corporation, Gas Turbine Division, 226 NLRB
522 (1976).
The distinctions referred to by Members Penello and Walther are
nonexistent or totally irrelevant, as is their comment concerning my
reference to Midwest Piping. For Autoprod and Turbodyne are cited only as
examples of cases in which those Members found that a pending petition
was an insufficient basis for withdrawal of recognition even though the
employer was aware of its existence, where the reliance on the pendency of
the petition occurred in the context of unfair labor practices; and I referred
to Midwest Piping only as descriptive of the facts in the Turbodyne case. Far
from being distinguishable, they are analogous to the facts herein, where
Respondent withdrew recognition at a time when it was not aware of any
objective facts on which it could base its asserted reasonable doubt of
continued majority status, and it learned of and relied on the pendency of
the RD petition only after it embarked on its unfair labor practices. In either
situation, the relevant context is that existing at the time the petition was
relied on, and I would not permit Respondent in this case to rely on it nunc
pro tunc.
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices, a decertification petition was
filed with the Board accompanied by a statement
showing almost unanimous employee support which
raised a question concerning the representation of
those employees. And, in Telautograph Corporation,
199 NLRB 892 (1972), it is said:
. . . the decertification petition, supported by
an adequate showing of interest . . . raised a
question concerning representation. In Shea
Chemical Corporation, 121 NLRB 1027, the Board
established the rule that when a real question
concerning representation has been raised by the
filing of a petition by a rival union that "an
employer may not go so far as to bargain
collectively with incumbent (or any other) union
until the question concerning representation has
been settled by the Board." The same rule should
be applied where a real question concerning
representation has been raised by the timely filing
of a decertification petition.
Therefore, even if Respondent did not have
knowledge on November 27 of the petition filed that
day, it was legally justified in not going "so far as to
bargain collectively with incumbent . . . union until
the question concerning representation has been
settled by the Board."4 By stating that an employer is
not relieved of its bargaining obligation by the filing
of an RD petition of which it has no knowledge, our
colleagues are implicitly finding that such an
employer not only may-but must-continue to
bargain and possibly sign a contract in the face of a
valid question concerning representation. Not only
does such a finding negate the concept of employee
free choice, but it comes perilously close to directing
the employer to commit an unfair labor practice.
Nevertheless, we agree to an 8(a)(5) finding, and
the issuance of a bargaining order in this case.
Beginning on or about December 9, Respondent
began its involvement in the commission of numer-
ous and serious unfair labor practices, which clearly
precluded the holding of a fair decertification
election.5 Consistent with Board law,6 we would hold
Respondent in violation of Section 8(a)(5) as of
December 9, 1974, and require it to bargain with the
Union, on the basis of the Union's majority status as
found by the Administrative Law Judge, at the new
Addison plant.7
4 While we do not consider knowledge of the filing of the decertification
petition critical. we note that it is the customary practice of the Regional
Offices, immediately upon the docketing of a petition, to notify the
employer and all other interested parties of its filing.
' Our concurring colleague cites for comparison purposes Autoprod, Inc..,
223 NLRB 773(1976), and Turbodyne Corporation, Gas Turbine Division, 226
NLRB 552 (1976). Both of these cases are inapposite. In Autoprod, the Board
found that the filing of a decertification petition did not justify an
employer's decision to terminate negotiations with an incumbent union
because the decision to terminate negotiations was made in the context of
other unfair labor practices. In the Board's view, those unfair labor
practices, which included a refusal to furnish the union with addresses of
unit employees, a unilateral wage increase made effective on the day the
decertification petition was filed, and bad-faith bargaining, "directly
affected all unit employees and could have reasonably been predicted to
cause employee dissatisfaction." In the instant case, unlike in Autoprod,
Respondent did not suspend bargaining in the "context of its unlawful
conduct" since its unlawful conduct did not commence until December 9.
1974, almost 2 weeks after the decertification petition was filed and
Respondent refused to bargain. In Turbodyne Corporation, the Board,
relying on such cases as Shea Chemical Corporation. 121 NLRB 1027 (1958);
G & H Towing Company, 168 N LRB 589 (1%967); and Telautograph
Corporation, 199 NLRB 892 (1972), found that an employer violated Sec.
8(a)(5) and (1) of the Act when, following the expiration of a collective-
bargaining agreement with an incumbent labor organization, it withdrew
recognition from it and failed to "adopt and maintain a neutral position
with respect to the competing labor organizations" until the question
concerning representation had been resolved. In making this finding, the
Board found that the employer therein had instituted certain "basic changes
in the collective [-bargaining] agreement" prior to the resolution of the
pending question concerning representation. Unlike in Turbodyne Corpora-
tion, Respondent in the instant case did maintain a neutral position by
suspending bargaining pending resolution of the question concerning
representation at least until December 9, 1974, the date on which it
commenced its campaign of unfair labor practices and the date from which
we would require Respondent to bargain with the Union.
We also consider Member Murphy's reference to Midwest Piping to be
completely inapplicable. The Midwest Piping doctrine involves the legality
of an employer's recognition of one of two or more competing unions, and
has absolutely nothing to do with the question of whether an employer's
suspension of bargaining is legal.
I Trading Port, Inc., 219 NLRB 298 (1975).
7 It follows, of course, that the unilateral grant of benefits on October 1,
1975, also violated Sec. 8(aX5) of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, recognize and bargain
collectively with District No. 8, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, as the exclusive representative of
our employees in the unit described below, with
respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment and, if
an understanding is reached, embody such
understanding in a signed agreement. The bar-
gaining unit is:
All production and maintenance employees
employed by Respondent at its relocated
factory at 1040 West Fullerton Street,
Addison, Illinois, excluding all office em-
ployees, clerical employees, professional and
technical employees, guards and supervisors
as defined in the National Labor Relations
Act, as amended.
WE WILL make Pedro Ramos and Rodney
Mason whole for any loss of earnings they may
have suffered by reason of their unlawful termina-
tions.
896
LAMMERT INDUSTRIES
WE WILL NOT discharge or lay off any employ-
ee, or otherwise discriminate against employees
because of their membership in, or activities on
behalf of, District No. 8, International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO, or any other labor organization.
WE WILL NOT discharge or lay off any employee
or otherwise discipline any employee for engaging
in concerted activities for mutual aid or protec-
tion with respect to wages, hours, and other terms
and conditions of employment.
WE WILL NOT promise money and/or reim-
bursement of union fees and dues in order to
induce employees to support antiunion charges
and abandon support for the Union.
WE WILL NOT promise benefits to our employ-
ees in order to encourage employees to reject
union representation.
WE WILL NOT threaten to get rid of the Union.
WE WILL NOT order employees to stop their
union activity.
WE WILL NOT attempt to induce employees to
resign their positions with the Union.
WE WILL NOT tell employees that the Union
acts as a barricade to future benefits.
WE WILL NOT threaten to discharge employees
who vote for the Union in an election.
WE WILL NOT interrogate employees concern-
ing their union sentiments and feelings.
WE WILL NOT give money to employees in order
to induce and/or reward employees for their
known or suspected antiunion activities.
WE WILL NOT promise greater accessibility to
high company officials in order to induce employ-
ees to reject union representation.
WE WILL NOT solicit employee grievances and
promise to adjust them in order to induce
employees to reject union representation.
WE WILL NOT instruct employees to remove
their union buttons and other union material.
WE WILL NOT grant you increased benefits in
fulfillment of earlier unlawful promises and in
order to induce you to reject the Union as your
bargaining representative.
WE WILL NOT unilaterally change existing terms
and conditions of employment without first
bargaining about such changes with the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form unions, to join, assist, or support District
No. 8, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
union, to bargain collectively through representa-
tives of their own choosing, or to engage in any
other concerted activities for the purpose of
mutual aid or protection, as guaranteed by
Section 7 of the National Labor Relations Act, as
amended, or to refrain from any or all such
activities.
All our employees are free to become and remain,
or to refuse from becoming or remaining, members
of District No. 8, International Association of
Machinists and Aerospace Workers, AFL-CIO, or
any other union.
LAMMERT INDUSTRIES, A
DIVISION OF
COMPONETROL, INC., A
SUBSIDIARY OF I-T-E
IMPERIAL CORPORATION
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Administrative Law Judge: Of the
multitude of issues involved in this consolidated proceed-
ing of alleged violations of Section 8(aXI), (3), and (5) of
the Act, the parties are agreed that the critical issue is
whether an order should be issued under Section 8(aX5)
requiring Respondent to bargain with the above-named
Union.
The complaint in Case 13-CA-14147 was issued on May
22, 1975, pursuant to a charge filed on March 25, 1975. On
March 3, 1975, the Regional Director in Case 13-RD-996
issued a "Report on Objections, Order Consolidating Cases
and Direction of Hearing" in which he directed that a
hearing be held in that RD proceeding to resolve the issues
raised by the Union's objections to conduct affecting the
results of an election' held on March 7, 1975, in which 10
votes were cast for the Union and 11 were cast against the
Union. In his report, the Regional Director further ordered
that the hearing in the RD proceeding be consolidated with
the hearing in Case 13-CA-14147 for the reason that the
Union's objections included allegations which are also the
subject of the Union's unfair labor practice charges in Case
13-CA-14147 involving the same parties.
At the commencement of the hearing in Cases 13-CA-
14147 and 13-RD-996, the complaint was amended in the
manner set forth in General Counsel's Exhibits 1 (p), I (r),
and 2. Respondent's answer to the complaint, as amended,
denies the alleged unfair labor practices.
The hearing in Cases 13-CA-14147 and 13-RD-996 was
held in Chicago, Illinois, on August 13, 14, 15, 18, 19, and
20 and September 3 and 4, 1975. The comprehensive and
able briefs filed by counsel for General Counsel and by
counsel for Respondent,2 together with the Union's
The election was held pursuant to a decertification petition filed on
November 27. 1974. and to a Stipulation for Certification Upon Consent
Election Agreement approved by the Regional Director on February 27,
1975. The Union's objections to the election were filed on March 13, 1975.
2 However, Respondent's 228-page brief does not deal with the 8(a)5)
issue raised by the pleadings.
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
memorandum brief, have been carefully reviewed and
considered.
Following the close of the hearing in Cases 13-CA-14147
and 13-RD-996 on September 4, 1975, and after the
receipt of the briefs therein, the Regional Director on
November 18, 1975, issued a second complaint against
Respondent in Case 13-CA-14811, alleging further viola-
tions of Section 8(a)(1) and (5) of the Act, pursuant to a
second charge filed by the Union on October 24, 1975,
against Respondent. Pursuant to motion by General
Counsel 3 I issued an order on December 8, 1975,
consolidating the new proceeding in Cases 13-CA-14147
and 13-RD-996 and remanding and reopening the newly
consolidated proceeding for hearing on Case 13-CA-1481 1
on February 3, 1975. Respondent's answer to the new
complaint denies the alleged labor practices.
The hearing on the remanded proceeding took place at
Chicago, Illinois, on February 3 and 4, 1976. Thereafter,
counsel for General Counsel and for Respondent filed
timely and substantial supplemental briefs which have
been carefully reviewed and considered.
The specific issues herein will be stated below under the
caption of "Issues."
For reasons hereinafter indicated I find Respondent in
multiple violation of the Act as alleged in the complaints,
as amended, with the exceptions hereinafter noted. In
addition I will recommend that Respondent be ordered to
bargain with the Union and that the election in Case 13-
RD-966 be set aside and that said proceeding be dismissed.
Upon the entire record in the case4 and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, Lammert Industries, a division of Compo-
netrol, Inc., a subsidiary of I-T-E Imperial Corporation, is
a separate corporation organized under the laws of the
State of Illinois. Lammert at all times herein material has
owned and operated a factory at 221 North Wood,
Chicago, Illinois, where it has been engaged in the
manufacture of vacuum pumps and compressors. During
the calendar year preceding the issuance of the complaints
herein, a representative period, Lammert, in the normal
course and conduct of its business operations, has received
gross revenue in excess of $250,000 and during the course
of the same representative period, has purchased and
received goods and materials valued in excess of $50,000
from points directly outside the State of Illinois. During the
same representative period, Lammert, in the normal course
and conduct of its business operations, has sold and
directly shipped products valued in excess of $50,000 to
points outside the State of Illinois. Lammert admits that it
has at all times material been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
:; The grounds for General Counsel's motion was that the allegations of
the new complaint in Case 13-CA-1481 I were related to the allegations and
the evidence thereof in the earlier complaint in Case 13-CA-14147.
1. THE LABOR ORGANIZATION INVOLVED
District No. 8, International Association of Machinists
and Aerospace Workers, AFL-CIO, the Charging Party, is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For 30 or more years, Respondent, a small independent
corporation, operated a factory on Wood Street in Chicago
where it was engaged in the manufacture of vacuum pumps
and compressors. In 1974 and 1975, the time of the alleged
violations here involved, the Company employed approxi-
mately 21 production and maintenance employees at its
Chicago Wood Street facility. Some 30 years ago the Union
became the exclusive collective-bargaining representative
of the Company's unit of production and maintenance
employees at the Wood Street plant. Since 1945 the Union
has had many collective-bargaining agreements with the
Company covering the above-described unit in the Wood
Street factory. The latest collective-bargaining agreement,
the one here directly involved, was executed on March 8,
1973, and covered a 2-year period from February 1, 1973,
to February 1, 1975. The contract carries the usual
provision that the agreement was to be self-perpetuating
"from year to year" after its expiration date "unless either
party gives written notice of its desire to modify or
terminate" the agreement at least 60 days prior to its
February 1, 1975, expiration date.
The contract was signed in behalf of I-T-E Imperial, the
new owners of Lammert Industries. I-T-E Imperial ac-
quired Lammert Industries in 1972. The signatures on the
collective-bargaining agreement in behalf of I-T-E Imperial
are that of Joseph LeBlanc whose title is shown on the
contract as executive vice president and general manager,
and Earl McGlone whose title is shown as plant supervisor.
McGlone had been the Wood Street plant supervisor for
some 5 years prior to its takeover by I-T-E Imperial and
was kept on by I-T-E Imperial as the Wood Street plant
supervisor after the takeover. McGlone was the chief
company negotiator of the collective-bargaining agree-
ment. Joseph LeBlanc is the executive vice president of
Componetrol, Inc., a subsidiary of the parent company. 5
Componetrol, Inc., has direct control and management of
four plants, including that of Lammert Industries. When
the parent company, I-T-E Imperial, became the owner of
Lammert Industries it also acquired as part of the deal a
second Lammert factory located on Westwood Avenue in
Addison, Illinois, which had started operations in 1969.
That plant, like the Chicago Wood Street plant, was also
engaged in the manufacture of vacuum pumps and
compressors. In 1975, at the time of the alleged violations
here involved, the Addison Westwood Avenue factory had
seven maintenance production employees. At all times here
pertinent, Earl McGlone, Chicago's Wood Street plant
supervisor, was also the supervisor of Respondent's
4 Certain errors in the transcripts have been noted and are hereby
corrected.
See pleadings in Case 13-CA-14811 and findings infra.
898
LAMMERT INDUSTRIES
Addison's Westwood Avenue plant. Unlike the organized
Wood Street facility in Chicago the Westwood Avenue
plant in Addison has never been under a union contract.
In 1972 when I-T-E Imperial Corporation, the parent
company, acquired Lammert Industries, it owned and
operated 17 other manufacturing plants located in various
States. Five of these 17 facilities operate under union
contracts and the remaining 12 plants are nonunion shops.
This division between union and nonunion shops remained
the same, not counting Lammert Industries, at the time of
the hearing in the latter part of 1975 and early part of 1976.
The parent company, for administrative purposes, divides
its various manufacturing facilities into four "Groups."
The group to which Lammert Industries is assigned is
called the Componetrol Group and Lammert is known as a
division of Componetrol, Inc. As heretofore noted, Joseph
LeBlanc, who signed the collective-bargaining agreement
here involved, is the executive vice president of Compone-
trol, Inc.
On or prior to November 27, 1974, 19 employees of the
unit here involved at the Wood Street plant in Chicago,
signed a document requesting the National Labor Rela-
tions Board "to conduct a decertification election with
regard to" the Union representing them, the Charging
Party herein.
On November 27, 1974, a petition was filed with the
Board in Case 13-RD-996 herein by an attorney in behalf
of Respondent's employees at the Wood Street plant in
which the purpose of the petition is stated therein as
follows "RD-DECERTIFICATION - A substantial
number of employees assert that the certified or currently
recognized bargaining representative is no longer their
representative." The document represents that the petition
is supported "by 30%0 or more of the employees in the unit"
out of the 23 then represented to be in the unit.
As heretofore noted, the Board, pursuant to the RD
petition, conducted a decertification election on March 7,
1975. With 21 employees voting at the election, the Union
lost the election by a vote of one. Due to timely objections
to conduct affecting the results of the election filed by the
Union, the Regional Director on May 23, 1975, issued his
"Report on Objections, Order Consolidating Cases and
Direction of Hearing," which as aforenoted because of the
similarities of the issues, resulted in the consolidation of the
RD proceeding with Case 13-CA-14147, and the hearing
thereof in the latter part of 1975 and early part of 1976.
In September 1975, Respondent closed its old Chicago,
Wood Street facility, and its old Addison, Westwood
Avenue facility, and consolidated and transferred their
former manufacturing operations to a new plant in
Addison (Illinois), on Fullerton Street where it engaged in
the same manufacture of vacuum pumps and compressors
as formerly. Practically all of the employees in the closed
facilities accepted transfers to the new Fullerton Avenue
plant.
In October 1975, Respondent unilaterally changed
certain terms and conditions of employment of its
maintenance and production employees at its Fullerton
6 See G. C. Exhs. I (p). I (r), and 2, for amendments to complaint in Case
13-CA 14147.
Street plant in Addison without prior notice to or
bargaining with the Union.
1. Issues under Section 8(a)(l)
Under the above undisputed but skeletonized back-
ground facts, the 8(a)(1) issues under the pleadings, as
amended,6 in Case 13-CA-14147, as heard in August and
September 1975, are as follows: (1) Whether Plant
Manager McGlone warned an employee that it would be in
his best interest to abandon all union activity, and
threatened to get rid of the Union; (2) whether Plant
Manager McGlone promised an employee reimbursement
of his union fee and/or other monetary incentive if the
employee abandoned his support of the Union; (3) whether
Plant Manager McGlone promised an employee economic
and other benefits in an attempt to persuade him to resign
his position with the Union; (4) whether Plant Manager
McGlone at an employee gathering at the home of a
relative of employee Benito Gonzalez (a) promised Re-
spondent's employees economic or other benefits if the
employees would oppose the Union and/or discontinue
their support of the Union and (b) promised the employees
that once the Respondent moved its plant (to a new plant
at Addison, Illinois), the absence of a union would mean
that they would receive greater economic benefits; (5)
whether Plant Manager McGlone promised an employee
economic benefits when the Company moved its Chicago
Wood Street facility to Addison, Illinois, if there was no
union; (6) whether Plant Manager McGlone told an
employee that he was going to "red circle" the names of
employees who helped him; that he (McGlone) would put
something in their pockets, but the Union had to be out;
and that he (McGlone) was not going to forget the
employees that helped him; (7) whether Plant Manager
McGlone at the Chicago plant ordered an employee to
remove a union button from his cap and told the employee
that he did not want to see the union buttons in the shop
anymore; (8) whether Plant Manager McGlone at the
Chicago facility interrogated an employee as to why he had
hung up union literature at the plant; (9) whether Plant
Manager McGlone promised an employee that if the
Union got out, the Company would permit employees in
one classification to train and become employees of a
different classification; (10) whether Plant Manager
McGlone threatened to get rid of the employees who were
against him in the election; and (11) whether Plant
Manager McGlone gave an employee money in order to
discourage him from supporting the Union.
The above issues relate exclusively to alleged misconduct
by Respondent's Plant Manager McGlone in violations of
Section 8(a)(1) of the Act.
Additional 8(aX ) issues under the pleadings as amended
in Case 13-CA-14147, involving alleged misconduct by
Respondent's agents other than by the aforementioned
Plant Manager McGlone, are as follows: (I) whether on
February 27 and March 3 and 5, 1975, an agent of
Respondent promised Respondent's employees at the
Chicago Wood Street facility economic benefits, including
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but not limited to, attendance bonuses, raises, and pension
benefits, if the employees opposed the Union and/or
discontinued that support of the Union; (2) whether on
March 3, 1975, the aforementioned Personnel Director
Charles E. O'Hagan at the Chicago Wood Street facility
solicited employees to present their grievances to him, and
promised the employees that the grievances would be
resolved; and (3) whether an agent of Respondent
(identified at the hearing as William P. Treacy, counsel for
Respondent at the hearing herein) on or about August 6,
interrogated employees concerning the testimony the
employees had given and/or were to give the Board. 7
2. Issues under Section 8(aX3)
The pleadings in Case 13-CA-14147 also raise the
following issues under Section 8(a)(3) of the Act, to wit: (1)
whether Respondent's aforementioned Plant Manager
McGlone discharged Pedro Ramos on January 26, 1975,
because of his union activities and/or protected, concerted
activity, and (2) whether Plant Manager McGlone laid off
employee Rodney Mason because of his union and/or
protected, concerted activity.
3. Issues under Section 8(aX5)
After the conclusion of the hearing of the initial
proceedings herein in Cases 13-CA-14147 and 13-RD-996
on September 4, 1975, Respondent, pursuant to leave
granted at the hearing, albeit late, filed a proposed
amended answer to the complaint in Case 13-CA-14147,
on September 12, 1975, together with a simultaneous
motion for leave to file "instanter" its proposed and
attached amended answer. On September 16, 1975, counsel
for General Counsel filed his opposition to Respondent's
motion to amend its answer on the principal ground8 that
the proposed amended answer was a "post hearing attempt
to create alleged additional issues." The motion came up
for oral ruling on February 4, 1976, upon the reopening of
the initial proceeding herein for further hearing in
connection with Case 13-CA-14811. Because of General
Counsel's opposition to Respondent's proposed amended
answer on the ground that it set forth "additional issues,"
before ruling on Respondent's motion, I required counsel
for Respondent to file a statement in support of its motion
for leave to file its proposed amended answer as filed on
September 12, 1975. That requested statement, received in
evidence as Respondent's Exhibit 25 with page references
to the transcript in the original proceeding, clearly shows
that Respondent's proposed amended answer is tied to
both documentary evidence and testimony adduced at the
original hearing in August and September 1975. 1 find, in
agreement with counsel for Respondent, that Respondent's
proposed amended answer "is simply [for the purpose of]
making the pleadings conform to the proof." However, the
weight to be accorded to that alleged "proof' was and is
reserved for ruling in this Decision. By reasons of the
I The latter issue was raised by an amendment to the complaint in Case
13-CA-14147 as reflected in G. C. Exh. 2.
A The other ground for the opposition to the proposed amended answer
was that it was filed 8 days after the conclusion of the hearing whereas I had
given Respondent leave to file an amended answer on or before the
aforenoted circumstances, Respondent's motion for leave
to file its amended answer was granted on the record on
February 4, 1976.
It should be noted that General Counsel's aforemen-
tioned principal objection to Respondent's three-page
amended answer runs only to that part thereof that relates
to paragraph XII of the complaint in Case 13-CA-14147
which in the key part reads, "From on and about
November 27, 1974, and continuing to date, Respondent
has failed and refused, and is failing and refusing, to
bargain with the Union as exclusive bargaining representa-
tive of the employees in the unit...." Respondent's
amended answer to paragraph XII of the complaint reads:
"As to paragraph XII Lammert readopts its Answer to the
original complaint and adds thereto the following: At no
time material hereto did the Union herein represent a
majority of the employees herein involved."
As through oversight Respondent's aforementioned
amended answer and its motion for leave to file the
amended answer were not offered in evidence at the
hearing herein, I herewith place the two documents in
evidence as Respondent's Exhibits 27 and 28, respectively.
As likewise through oversight General Counsel's "Re-
sponse and Opposition to Respondent's Motion to Amend
Answer" was not offered in evidence at the hearing herein,
I herewith place that document in evidence as General
Counsel's Exhibit 26. (As heretofore noted, "Respondent's
Statement In Support of Motion for Leave to File
Amended Answer Filed on September 12, 1975" was
received in evidence at the hearing herein as Resp. Exh.
25.)
Under the above analysis of the pleadings and the
foregoing undisputed but skeletonized background facts,
the combined 8(aX5) issues under the pleadings in Cases
13-CA-14147 and 13-CA-14811 are as follows: (1)
Whether on November 27, 1974, when Respondent
admittedly withdrew recognition, the Union no longer
represented a majority of the unit employees at Respon-
dent's Chicago facility; (2) whether on the same date of
November 27, 1974, Respondent had a reasonably based
doubt as to the continuing majority standing of the Union
at its Chicago facility; (3) in the event it is found that
Respondent had a continuing obligation to bargain with
the Union with respect to the involved unit at the Chicago
facility, whether that obligation carried over to the
Company's new plant at Addison, Illinois, to which the
Chicago unit and the Addison old plant unit were
transferred on October 1, 1975; and (4) whether Respon-
dent's alleged unfair labor practices, if found as alleged, are
so serious as to require the issuance of a bargaining order.
4. Additional 8(a)(1) issue under second
complaint and answer
Under the pleadings in Case 13-CA-14811 and the
foregoing background facts, the remaining issue under
Section 8(aX)() of the Act is whether Respondent granted
conclusion of the hearing. At the remanded hearing herein on February 4,
1976. at my discretion, I overruled the objection to the proposed amended
answer because of the lateness of its filing in view of the very long transcript
of the record which counsel for Respondent had to study before he could
prepare and file a proposed amended answer.
900
LAMMERT INDUSTRIES
certain benefits on October 1, 1975, to its employees at its
new facility at Addison, Illinois, in order to discourage
union activity and/or in fulfillment of earlier alleged
unlawful promises of benefits in Case 13-CA-14147.
B. Eleven Alleged 8(a)(1) Violations by Plant
Manager McGlone
The complaint, as amended, alleges II separate incidents
of violations of Section 8(a)(l) of the Act by Respondent's
plant manager, McGlone. McGlone, a longtime employee
of Lammert Industries, has been plant manager of
Lammert's Chicago North Wood Street plant for the past 6
or 7 years. When the present parent company, I-T-E,
acquired Lammert in 1972, it kept McGlone on as plant
manager of Lammert's Chicago facility which was then
under a 2-year collective-bargaining agreement with the
Union, due to expire on February 1, 1975. The agreement
covered a unit of maintenance and production employees
at the plant with the usual exclusions. During the periods
here material there were approximately 21 employees in the
unit. The unit had been represented by the Union since
1945. On November 27, 1974, a decertification petition was
filed with the Board by an attorney in behalf of some of the
employees in the unit. The incidents involved in the 11
alleged 8(a)(1) violations charged to Plant Manager
McGlone as agent for Respondent took place chiefly in
December 1974 and January 1975, following the Novem-
ber 27, 1974, filing date of the decertification petition, but
before the election thereon on March 7, 1975.
The incidents in which Respondent is charged with
violations of Section 8(aX)() of the Act by the conduct of its
agent, Plant Manager McGlone, will be taken up below
generally in the order set forth in the complaint, as
amended.
1. Incident of alleged threats and promises in
December 1974 by McGlone to Shop Steward
Robert Minor
Paragraph VIII (a) of the complaint, as amended, alleges
that, "In or about December 1974 ... Earl McGlone . . .
warned an employee that it would be in his best interest to
abandon all union activity and support of the Union, and
threatened to get rid of the Union, no matter what the
financial cost."
The above alleged incident took place in the following
setting. In the first part of December 1974, two union
agents, George Janas and Earl Drenning, called at
Respondent's Chicago plant and received permission from
Plant Manager McGlone to talk to the men in the above-
described unit. At that time there was a great deal of
tension between management and the Union because of
the employee decertification petition that had been
recently filed with the Board. In giving the union
representatives permission to speak to the unit employees,
McGlone cautioned them against bringing any pressure on
the employees and especially on Norbert Kurlik, a working
foreman, to cause a withdrawal of the decertification
petition which Kurlik had taken the initiative to sponsor.
Nonetheless, some minutes later McGlone, according to
his testimony, found Business Agent Janas shouting at
Kurlik and pointing a finger at his stomach. Later when the
two union business agents were about to leave the plant,
McGlone testified that Business Agent Janas told him that
he would stop the construction of the new plant Lammert
was just beginning to put up on Fullerton Avenue in
Addison, Illinois, "if you [McGlone] don't get these [the
unit employees] back into the fold [the Union] like you
supposed to."9 Almost immediately after the two union
representatives left the plant, McGlone told Shop Steward
Minor about Janas' alleged threat to stop the construction
on the new factory in Addison. Minor's immediate
response was, "I don't believe that," and that he would
check the story out with Janas. McGlone told Minor that
"he would like to know" what he found out from Janas. In
response, Minor told McGlone that, "You can call me at
home." Minor, after work that day, looked up Janas at the
union offices where Janas flatly denied that he had made
the threat attributed to him by McGlone about closing
down the construction of the new plant if McGlone did not
help him in getting the employees in the unit to support the
Union.
The above background findings are based on the
combined and undisputed testimony of both McGlone and
Minor, but the subsequent alleged events as testified to by
Minor are undisputed. Minor testified that in the early
evening of the same day, McGlone telephoned him at his
home to find out whether Janas had admitted making the
alleged threat that he would stop the construction of the
Company's new plant in Addison if McGlone did not help
the Union to get the employees in the unit back into the
Union fold. MGlone denies that he even made such a
telephone call to Minor's home. Minor's testimony about
McGlone's telephone call was corroborated by Minor's
wife, Erma, who testified that when McGlone called, she
answered the telephone call and upon finding that it was
McGlone who wanted to speak to her husband, she turned
the telephone over to Minor.
Minor further testified that when he answered the
telephone the first thing he told McGlone was that he had
checked with Janas on the statement McGlone had
attributed to Janus and that Janas said it was not true and
that McGlone replied that if the attributed statement was
not true, he was not interested.
Minor testified that McGlone then switched the conver-
sation to his [Minor's] relationship with the Union, during
the course of which McGlone made the following state-
ments to him: (1) "Why don't you just stop this Union shit
because you have seniority ... and pretty soon the Union
will be out. I am getting rid of the Union. The Company is
behind me 100 percent, and if it takes me $1,000 a man I
am going to get rid of that Union." (2) "You are up for
advancement or promotion, you can get it faster without a
Union." (3) "You can make better advancement without
your Union." (4) "You can stop this Union business and
just cut it out." (5) "He told me to keep quiet, just do my
job and keep quiet and don't have anything to do with this
Union."
9 Bracketed matter is inferred and inserted by me.
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
I credit Minor's testimony as corroborated by his wife
that McGlone telephoned Minor on the night here in
question at his home and made the threats and promises
shown above to him (Minor). I discredit McGlone's denial
that he had even called Minor at his home that night and
further discredit his denials that he made the above-quoted
statements to Minor. I make these credibility findings
primarily on Minor's superior demeanor evidence. I also
credit Shop Steward Minor's testimony because numerous
subsequent incidents, as hereinafter described which also
involve 8(a)(1) violations by McGlone, show that
McGlone's testimony was directly contradicted by one
witness after another. I also find that a subsequent finding
herein which shows that in another incident McGlone
actually stuffed the pocket of a unit employee with $20 bills
to induce him to vote for the Company in the then
forthcoming decertification election is additionally confir-
mative of the credibility of Minor's testimony that
McGlone did telephone him and that McGlone in the
course of his remarks to Minor did tell him that he had
company backing to get rid of the Union even if he had to
pay up to $1,000 per unit employee to accomplish that
purpose.
I find that the evidence adduced by General Counsel
substantially proves the allegations of the complaint here
under consideration that McGlone warned Minor, the
union shop steward, that it would be to his best interest to
abandon all union activity and support of the Union, and
that McGlone threatened to get rid of the Union, no matter
what the financial cost. I further find and conclude that
this conduct by Respondent through its agent, Plant
Manager McGlone, constitutes a violation of Section
8(aX)(I) of the Act.
2. Incident in late November or early December
of 1974 of McGlone's alleged promise to an
employee of reimbursement of his union fees if he
would abandon his union support
Paragraph VIII (b) of the complaint as amended alleges
that on or about December 9, 1974, Respondent through
Plant Manager McGlone promised an employee at its
Chicago plant "the reimbursement of his union fee and/or
other monetary incentive if the employee abandoned his
support of the Union." Although this allegation refers to an
alleged promise to a single employee, counsel for General
Counsel adduced evidence of such alleged promise to two
of Respondent's unit employees.
The above-alleged incidents took place in the following
setting. By the latter part of November 1974, a substantial
number of the 21 employees in the unit here involved had
become delinquent in the payment of their union dues. The
Union, under a letter dated November 26, 1974, notified
Plant Manager McGlone that the six unit employees
named in the letter were not in compliance with a provision
in the existing collective-bargaining agreement requiring
that an "employee must become and remain a member in
good standing in the Union," and accordingly asked for
their immediate termination "upon receipt of this letter."
Among the employees named in the letter were Willie
Carpenter and Wally Davis. Under the same date of
November 26, 1974, the Union in an identically phrased
letter to McGlone also demanded the termination of two
other unit employees, not directly involved in the incidents
here under consideration, for nonpayment of union dues.
As heretofore noted the employee decertification petition
of the Union was filed on November 27, 1974. The petition
and the above-described union letters to Plant Manager
McGlone demanding the termination of Carpenter and
Davis, among other employees, for nonpayment of union
fees, crossed each other in the mail. The union demand
letters were mailed out a day before the decertification
petition was filed, but at the time McGlone spoke to
employees Carpenter and Davis about the Union's demand
for their terminations for nonpayment of dues, he had
received a copy of the decertification petition from the
Board.
On December 4, 1974, the six unit employees whose
discharge had been demanded by the Union in its letter of
November 26, 1974, for nonpayment of union fees, filed an
unfair labor charge against the Union on the ground that
the Union had asked for their discharge "because of their
support for an employee petition to decertify" the Union.
By letter dated December 30, 1974, the Regional Director
notified the representative of these six employees that "the
evidence does not show that the Union unlawfully
requested the Employer to terminate any employees," and
that he was, therefore, refusing to issue a complaint under
their charge. In effect the Regional Director found that the
Union had the right under the collective-bargaining
agreement to demand the termination of the employees
named in its letter because of their failure to pay dues.
Actually the Union's demand letters were mailed to
McGlone before the Union, as far as the record shows, had
any word or knowledge about the filing of the employee
decertification petition.
Shortly after the receipt of the Union's demand letters of
November 26, 1974, Plant Manager McGlone contacted
machinists Carpenter and Davis, among other employees,
about their union dues delinquency. It is admitted that
McGlone loaned Carpenter S100 to pay up his delinquency
in union dues and thus avoided termination and that
Carpenter shortly thereafter paid the $100 to McGlone.
Carpenter testified that McGlone "advised me to go to the
Labor Board and file charges, [to] see if I could get my
$100 back, and he told me if I didn't get it back, he
[McGlone] would give me $100 back." Carpenter further
testified that McGlone told him that, "he would fire any
man that went against them [the Company] in the
[decertification] election." I credit Carpenter's above-quot-
ed testimony of what McGlone told him and discredit
McGlone's denial that he made such statements to
Carpenter.
Carpenter testified that the above-described conversation
between McGlone and himself took place in mid-Decem-
ber 1974. McGlone testified that the conversation took
place "sometime in November, December" after he had
received the Union's demand letter for Carpenter's termi-
nation for union-dues delinquency. As the above-described
conversation shows that McGlone advised Carpenter to file
charges with the Board against the Union to get back the
902
LAMMERT INDUSTRIES
$100 he paid the Union for his arrearage in union dues and
as such a charge, with Carpenter's name thereon, was
actually filed on December 4, 1974, 1 find that the
conversation in which McGlone advised Carpenter to file
such a charge took place prior to December 4, 1974.
It is admitted that McGlone likewise took up the matter
of the Union's demand for the termination of Davis for
nonpayment of his union dues with Davis shortly after
McGlone received the Union's demand letter. Davis then
went down to the union office and paid his union dues
arrearage of $100. Davis testified that about a week later
on December 9, 1974, McGlone looked him up at his work
station and told him he "didn't have to worry" about the
$100 he had paid the Union for back dues as McGlone
would see to it that he got it back. Davis further testified
that later that day McGlone again looked him up at his
turret machine and again told him not to worry about the
$100 he had paid the Union and in that connection asked
Davis if he wanted "to go down with the guys down to the
Labor Board" where his fellow workers were going "to see
if they could get the money back from the Labor Board."
Davis further testified that still later that day when a group
of his fellow workers were getting ready to go to the offices
of the Board to support their aforementioned unfair labor
charge against the Union, McGlone said to him, "Don't
you want to go with them? You will get that $100 plus the
$1001 am going to give you."
Davis' above-described testimony at the hearing on
August 15, 1975, was based upon his recollection of what
McGlone said to him some 8 months earlier on December
9, 1974. In an earlier written statement, dated December
22, 1974, to the Board, only about 2 weeks after the
conversation here under consideration, Davis stated that
McGlone "promised me that if I voted against the Union
he will reimburse me the $100 I paid for the union
reinstatement fee which I paid about 2-3 weeks ago .... "
(Resp. Exh. 5.) In a somewhat later statement of January
20, 1975, in affidavit form, to the Board much of which
relates to other matters, Davis stated, as here pertinent,
"On or about December 9, [1974] McGlone talked to me at
the turret lathe. He said, 'Davis, don't worry about your
$100 bucks . . . [to the Union for union dues], I'll give it
back to you when this is all over.' "'0 (Resp. Exh. 6.)
In summary, Davis testified that McGlone on December
9, 1974, told him he did not have to worry about the $100
he had paid the Union because McGlone promised him
reimbursement for that sum. I credit this testimony by
Davis, the truth of which is corroborated by earlier written
statements to the Board by Davis, chronologically much
closer to the incidents here under discussion. Conversely, I
discredit McGlone's denial that he promised Davis that he
would reimburse him for the $100 he paid the Union. In
further summary, Davis testified that McGlone told him
that if he joined his fellow workers in going to the Board to
back up their unfair labor charge against the Union, that
he would get the $100 he paid to the Union back "plus the
$100 I am going to give you." I credit this testimony by
Davis and discredit McGlone's denial that he made the
statements attributed to him by Davis.
"' I find that the phrase "when this is all over" is a reference to the
decertification election, not at that time as yet scheduled, which McGlone
expected the Company to win.
Conclusions
I find and conclude that General Counsel has substan-
tially proven the allegation of the complaint here under
consideration as expanded by the evidence that Respon-
dent through its Plant Manager McGlone promised two
employees, Carpenter and Davis, reimbursement of their
union fees and/or other monetary incentive if the employ-
ees abandoned their support of the Union, in violation of
Section 8(a)(1) of the Act. As shown above I have credited
the testimony of Respondent's employees, Carpenter and
Davis, that McGlone engaged in the misconduct alleged in
the complaint as against McGlone's denials thereof. I
based these credibility findings primarily on the superior
demeanor evidence of Carpenter and Davis over that of
McGlone. Another factor in my credibility findings is that
throughout the hearing herein McGlone's testimony is
directly contradicted by one witness after another which in
itself is indication of the unreliability of McGlone's
testimony. Still another factor in my credibility findings is
the detail in the testimony of Carpenter and Davis which
would be hard to fabricate and the failure of cross-
examination to shake their testimony. A still further factor
in my credibility findings is that the record as a whole
shows that McGlone, acting without the advice of counsel
before Respondent's present counsel came into the picture,
sought to break the Union's hold on the involved unit in
line with the firm policy of the new multiplant owners of
Lammert Industries to favor nonunion plants.
3. Incident of alleged promises and inducements
by McGlone to Union Shop Chairman Brown
Paragraph Vlll (c) of the complaint as amended alleges
that Respondent through Plant Manager McGlone "prom-
ised an employee economic and other benefits, including
but not limited to, a raise in pay, in an attempt to persuade
this employee to resign his position with the Union."
The evidence identifies the employee mentioned in the
above allegation as Carl Brown, about 54 years old, who
has been in Lammert's employment since 1947 and has
greatest seniority of any employee in the unit. He works in
the Company's shipping and receiving department but also
does some maintenance work. Brown has been the Union's
shop steward since 1974.
It will be recalled that the Union on November 26, 1974,
had mailed to Plant Manager McGlone, two letters
demanding the termination of eight unit employees for
failure to pay their dues; the letters show that copies
thereof were simultaneously mailed to Brown in his
capacity as the Union's shop steward. Part of Brown's
duties as a shop steward is to see that the members of the
Union keep current on their dues. When Brown received
copies of the Union's demand letters for the termination of
the named employees, he contacted the delinquent mem-
bers in an effort to get them to pay their dues and thus
avoid termination.
Brown's testimony shows that on December 20, 1974, or
some 3 weeks after the Union's demand letters, McGlone
called him into his office. Brown testified McGlone in his
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office told him, "You know, the Union is going to be
thrown out so why don't you just resign your position as
Chairman [actually union shop steward] of the Union. If
you will be loyal to me you needn't have to worry about
your job. I will give you a raise and put you on salary."
Brown asked McGlone to put the promise in writing but
McGlone refused. McGlone then asked Brown to think his
offer over. Brown further testified that some 2 or 3 weeks
earlier, McGlone said to him, "Carl, they [the dues
delinquent Union members] are giving you a hard time
... .so why don't you just quit as Shop Foreman?"
Brown's reply was, "I won't quit."
Brown's credited testimony shows that the only time
McGlone offered him a promotion to a salaried position if
he would resign from his job as union shop steward was
"during the dispute," which was a reference to the contest
then going on between the Company and the Union to win
the forthcoming decertification election.
McGlone admits that he offered Brown a salaried job
sometime in December 1974, but testified that he did that
solely out of sympathy for the hard time the union dues
delinquent members were giving Brown in his efforts as
shop steward to bring them current on their union dues.
Brown's testimony shows that he told McGlone that the
delinquent members were not giving him a hard time
beyond what he routinely expected as shop steward.
McGlone also testified that his offer of a salaried job to
Brown in December 1974 was not his first offer to Brown
of a promotion and that he had offered promotions to
Brown over the past 4 or 5 years from time to time. I do not
credit McGlone's testimony about his repeated offers of
promotions to Brown over the years but instead fully credit
Brown's testimony that he had received only two offers of
promotion from McGlone and that both of these offers
were made to him "during the dispute" or contest between
the Company and the Union to win the expected
forthcoming decertification election.
Conclusions
I fully credit Brown's testimony that McGlone on
December 20, 1974, told him, "You know that the Union is
going to be thrown out, so why don't you just resign your
position as chairman of the Union. If you will be loyal to
me, you needn't have any worry about your job. I will give
you a raise and put you on a salary." I would credit this
testimony by Brown even if it were denied by McGlone
because of Brown's superior demeanor evidence. However,
McGlone admits he offered Brown a promotion and the
record fails to disclose a denial by McGlone that he
conditioned his offer of a better job to Brown on Brown's
abandonment of his position of shop foreman for the
Union.
I do not credit McGlone's testimony that he offered
Brown a promotion because he felt sorry for Brown
because of the hard times the delinquent union members
were giving him in connection with his dues collecting
duties as shop steward.
I find from the record as a whole that McGlone offered
Brown a promotion as an inducement for him to resign his
position with the Union in a further effort to break up
union support among the employees in the unit, following
the filing of the decertification petition.
I find and conclude that McGlone in soliciting Brown to
withdraw from the Union violated Section 8(a)(l) of the
Act and also find that Respondent through McGlone
further violated Section 8(aXl) by promising Brown a
promotion in order to induce him to abandon the Union.
Oahu Refuse Collection Co., Inc., 212 NLRB 224, 226, 227
(1974).
4. Incident of alleged promise of benefits to Shop
Steward Brown under benefit program of new
owners of Lammert at projected new plant
Paragraph VIII (f) of the complaint, as amended (taken
somewhat out of order because it also involves the same
Shop Steward Brown), alleges that Respondent through
Plant Manager McGlone in late December 1974, "prom-
ised an employee economic benefits when Respondent
moved its facility [Wood Street facility in Chicago] to
Addison, Illinois, if there was no Union."
At the initial hearing herein in the fall of 1975, and for
many years prior thereto, Respondent Lammert Industries,
as aforenoted, had a principal facility in Chicago on Wood
Street where it employed approximately 21 production and
maintenance employees engaged in the manufacture of
vacuum pumps and compressors. In the fall of 1975 and for
a number of years prior thereto, Lammert also had smaller
auxiliary facility on Westwood Avenue in Addison, Illinois,
a suburb of Chicago, where it was engaged in the same type
of manufacturing as in its Chicago plant with a crew of
some six or seven production and maintenance employees.
Some of the employees in the Chicago plant were from
time to time sent to work temporarily at the Addison
Avenue plant and one employee, Charles Wavra, worked
daily between the two plants.
McGlone was plant manager of both the Chicago and
Addison facilities. As aforenoted the Chicago plant had
been organized for many years, with the most recent
collective-bargaining agreement running from February 1,
1973, to February 1, 1975. The auxiliary Addison plant on
Westwood Avenue has never been organized.
On October 1, 1975, Respondent closed its Chicago
facility and its auxiliary facility on Westwood Avenue in
Addison and consolidated its operations into a new plant,
also in Addison, but located on Fullerton Street.
In late December 1974, about a month after the
employee decertification petition had been filed with the
Board, Shop Steward Brown noticed that McGlone was
making the rounds of the Chicago plant to show and talk to
each employee individually about a document he had in his
hands.
When McGlone got to where Brown was standing, he
showed Brown the papers or document he had been
showing the other employees individually. McGlone told
Brown that the document set forth the employee benefits
that the employees at Lammert's nonunion shop at
Addison were receiving. The document, received in
evidence as General Counsel's Exhibit 5, is a four-page
pamphlet, bearing at the top of its first page the words, "oF
CONCERN TO YOU AS A NEW EMPLOYEE." The pamphlet lists
such employee benefits as group medical and life insur-
904
LAMMERT INDUSTRIES
ance, profit sharing, sick pay, and paid vacations, among
other benefits. Other evidence dehors the pamphlet shows
that these listed benefits are called Componetrol employee
benefits from the name of the corporation Componetrol,
Inc., that owns Respondent Lammert Industries and that
Componetrol in turn is owned by I-T-E Imperial Corpora-
tion, the top parent company.
The record further shows that the Componetrol employ-
ee benefits as set forth in the pamphlet were installed only
in Componetrols' unrepresented or nonunion plants.
Later sections of this Decision further show that the
Componetrol employee benefits for its unrepresented
factories were generally considered by Lammert's employ-
ees to be more liberal than those they received under their
labor contract. As aforenoted Lammert is a subsidiary of
Componetrol.
Brown while glancing through the Componetrol booklet
detected that the Componetrol employee benefit program
called for more paid vacations than the Lammert employ-
ees at the nonunion Addison plant were receiving. Pointing
to that item in the booklet, Brown told McGlone that it
was wrong and McGlone immediately agreed. "
Nevertheless, Brown's credited testimony shows that
McGlone told Brown that when Lammert closed down its
union plant in Chicago and its nonunion plant in Addison
and moved and consolidated its operations at its new plant
then under construction at a new location in Addison, the
employees who transferred to the new plant would get the
benefits and vacations set forth in the pamphlet-"if the
Union went out." 12
Brown's immediate and admitted response to McGlone
was that the exhibition to him of Componetrol's employee
benefit booklet was illegal. I infer and find that Brown, by
the use of the term "illegal," meant that McGlone's
exhibition to him of Componetrol's more liberal employee
benefit program for nonunion facilities, at Lammert's
unionized Chicago plant at a time close on the heels of a
pending decertification election, was illegal.
McGlone admits that he showed and talked to Brown
about Componetrol employee benefit pamphlet in late
December 1974, but denies that he told Brown that the
employee benefits shown in the pamphlet would be put in
force at the new plant-"if the Union went out." I do not
credit McGlone's conditional denial, "if the Union went
out." McGlone also testified that Brown had previously
asked him on several occasions to show him a copy of the
Componetrol employee benefits. Although Brown was not
called on rebuttal to deny that assertion, I do not find that
relevant as a defense because on the occasion and
circumstances here under consideration Brown had not
asked to see the Componetrol document but was shown the
pamphlet as part of McGlone's procedure that day to show
the booklet individually to all the employees in the Chicago
plant at a time that an employee decertification petition
was pending before the Board. As shown above, Brown, by
reason of the position he held as the Union's shop steward,
took immediate umbrage about McGlone's exhibition of
the Componetrol employee benefits booklet.
1 The findings in the above paragraph are inferred from the combined
testimony of Brown and McGlone.
'2 The above finding is based on the following credited testimony of
Conclusions
I find and conclude that General Counsel has substanti-
ated the allegation of the complaint that Plant Manager
McGlone in late December 1974 "promised an employee,"
the aforementioned Shop Steward Brown, "economic
benefits when Respondent moves its facility to Addison,
Illinois, if there is no Union." As there is no dispute that on
the day here in question McGlone went about showing
each employee in the unit including Brown, the Compone-
trol employee benefit pamphlet, the only issue before the
Administrative Law Judge is one of credibility over
whether McGlone told Brown that the installation of the
Componetrol benefits would be conditioned upon the
Union being "out" at the new plant when operations at the
two older plants were phased out and moved to the new
plant. In the findings above I have credited Brown's
testimony that McGlone's promises of benefits were
conditioned on the Union being out of the new plant as
against McGlone's denial of that condition. I base my
determination of that credibility issue primarily on Brown's
superior demeanor evidence. Other factors in this credibili-
ty determination are the same as those set forth in
connection with other unfair labor practices by McGlone
and the general unreliability of McGlone's testimony.
Another factor in the credibility determination is that there
emerges from the record as a whole a pattern of behavior
by McGlone through promises, threats, and rewards to try
to persuade and influence Respondent's employees to vote
the Union out at the then forthcoming decertification
election.
5. Incident of McGlone's alleged promises of
benefits to a gathering of employees at a private
home on January 13, 1975
Paragraph VIII(d)(l) and (2) of the complaint as
amended alleges that McGlone on January 13, 1975, at the
home of a nonemployee related to employee Benito
Gonzalez, promised Respondent's employees economic
and other benefits, such as insurance benefits and in-
creased sick days, if the employees opposed the Union
and/or discontinued their union support, and also prom-
ised the employees that once the Company moved its plant,
the absence of a union would mean that they would receive
greater economic benefits such as higher wages, more sick
days, and a bonus after each year.
The following are admitted or undisputed background
facts under the above alleged incident. On January 13,
1975, there was a meeting of about 18 of Respondent's
employees out of the involved 21-man unit at the home of a
cousin of fellow employee Benito Gonzalez. Plant Manager
McGlone was in attendance at the meeting. McGlone
brought with him and discussed with the employees at the
meeting the same printed package of Componetrol employ-
ee benefits (G. C. Exh. 5), the exhibition of which as shown
earlier herein had drawn the ire of Union Shop Steward
Brown because he deemed its showing by the plant
manager as illegal.
Brown: "He IMcGlone] said if and when we move to Addison, we would
get these vacations and benefits if the Union went out."
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also admitted that McGlone attended the meeting at
the invitation of employee Norbert Kurlik who as shown
earlier herein had been the initiator and prime mover
behind the employee decertification petition. Kurlik's fully
credited testimony shows that at the time he invited
McGlone to come to the meeting he told McGlone he was
extending the invitation because "the guys [the unit
employees at the Chicago plant] wanted to know what they
can get after the union was out." I discredit McGlone's
denial of this both on demeanor grounds and because the
record as a whole shows him to be an unreliable witness. In
addition McGlone's own testimony shows that he brought
to the meeting copies of Componetrol's employee benefits
because the employees "knew I had a policy from
Componetrol which I had shown to Carl Brown" and "they
asked me if I would bring it to the meeting and show them
what the policy consists of." McGlone further admits that
he passed out copies of the document to the employees and
then read to them some of the employee benefits set forth
in the document. All of these factors add to the credibility
of Kurlik's testimony that he invited McGlone to the
meeting because "the guys wanted to know what they can
get after the union was out."
The record as a whole shows that the employees in
attendance at the meeting felt that the Componetrol
employee benefit package was generally more liberal than
the benefits they were getting under the collective-bargain-
ing agreement. An overall comparison of the Componetrol
employee benefits against the labor contract shows this to
be true.
The critical question is whether McGlone told or in
effect promised the employees at the meeting that they
would get the more liberal Componetrol employee bene-
fits-if they voted the Union out-at the pending decertifi-
cation election.
McGlone denied that he promised the employees that
"he would get the employees anything they wanted if the
Union went out." This is not a denial that he would get the
employees the Componetrol benefits. If McGlone meant
by his denial that he did not promise the Componetrol
benefits on the condition that the Union went out, I
discredit that denial. McGlone in his testimony did not
specifically deny that he promised the employees that they
would get the Componetrol package of employee benefits if
the Union went out.
The credited testimony of other witnesses as set forth
below is convincing that McGlone did promise the
employees at the meeting that they would get the superior
Componetrol employee benefits, with some modifications
to fit the local situation, if the Union went out.
Unzo Givens, a company welder, was General Counsel's
leadoff witness. His credited testimony shows the follow-
ing. On the morning of the above-described January 13
meeting of Respondent's employees at a private home,
McGlone came to Givens in the welding room where he
told Givens that "he was going to have a little dinner for
some of the fellows" that night and invited him to come to
the dinner,'3 stating that it would be to Givens' best
1'3 do not credit McGlone's denial that he invited Givens to attend the
meeting.
14 1 infer and find that McGlone singled Givens out for the invitation to
interest to attend "because there was something to be
discussed that he [McGlone] was sure I would benefit
from."'4 Later that day Givens told McGlone that he
accepted the invitation. That night he was I of the 17 or 18
employees at the meeting.
Givens' further credited testimony shows that after
McGlone passed out printed copies of Componetrol's
employee benefits, he read out some of the main benefits in
the document. The employees in Lammert's Chicago plant
do not get sick leave under their labor contract. By contrast
the Componetrol employee benefit schedule calls for 5
days of sick leave in the first year of employment. As
McGlone read off that figure of 5 days' sick leave, Givens
jotted it down on his copy of the Componetrol employee
benefits which is the copy received in evidence as General
Counsel's Exhibit 5. McGlone told the employees that the
Componetrol 5-day sick leave benefit was a "benefit the
union could never get."
On the matter of paid holidays, the collective-bargaining
agreement called for 10 paid holidays but the Componetrol
document provided for only 9 paid holidays. However,
according to Givens' credited testimony McGlone told the
employees that he would meet every benefit the Union had
gotten for the employees or could get for them. After
discussing with the employees the various other Compone-
trol employee benefits, Givens' credited testimony further
shows that McGlone guaranteed the employees that he
could get those benefits for them "for free" and that the
only barricade against their receiving the Componetrol
benefits was the Union. In summary, I find from Givens'
testimony as a whole that McGlone promised the employ-
ees at the meeting the more liberal employee benefits-if
the Union went out.
Another employee present at the meeting McGlone
addressed was Rodney Mason, an assembler. Like Givens,
he testified in behalf of General Counsel. Mason's credited
testimony shows that when McGlone began his discussion
of the distributed printed Componetrol employee benefits
pamphlet, he prefaced his remarks with the statement that,
"if the Union went out he [McGlone J would try to get these
things." Mason's further credited testimony shows that
when McGlone got to the subject of sick leave he said he
would try to get the employees the 5 days of sick leave
shown in the Componetrol package and also the listed 2-
week paid vacation after I year of employment-if the
Union went out, whereas the employees at Lammert's
union plant were then receiving no sick leave and only a I
week vacation after I year of employment. Asked by the
Administrative Law Judge if there was any doubt in
Mason's mind that McGlone had said to the assembled
employees, "If the Union goes out I will try to get you 5
days of sick leave that don't now have?," Mason's instant
reply was, "There is no doubt in my mind whatever."
Mason was I of the 19 employees who had signed the
petition request to the Board for a decertification election.
Although Mason testified that McGlone said he would
"try" to get for the employees the Componetrol benefits in
contrast to Givens' testimony that McGlone "guaranteed"
attend the dinner meeting because he was one of the only two or three unit
employees who had not affixed his name to the November 1974 petition
request to the Board to conduct a decertification election.
906
LAMMERT INDUSTRIES
the Componetrol benefits if the Union went out, the record
suggests that McGlone used both the word "try" and
"guarantee" with reference to the Componetrol employee
benefits. I make this finding because Mason's testimony
shows that he was largely inattentative to what went on at
the meeting and that the only thing he remembered about
the discussion at the hearing some 6 months after the event
was what McGlone had to say about sick pay and paid
vacations.
Without further discussion below, I find that whether
McGlone promised "to try" to get the employees the
Componetrol employee benefits or "guaranteed" such
benefits to the employees-if the Union went out-is
inconsequential because in either case the words connote
either a contingent l5 or absolute promise of benefits if the
Union went out. In each such situation there is an obvious
and classical promise of benefits if the Union went out, in
violation of Section 8(a)(l) of the Act.
Mario Gonzalez, a shipping helper at the Chicago plant
who speaks a broken English, testified for Respondent with
respect to the employee meeting of January 13, 1975, here
under consideration. His testimony shows that he was
present at that employee meeting at the invitation of
Kurlik, the initiator of the decertification petition, who, as
the above findings show, arranged the meeting and further
arranged for Plant Manager McGlone to be present
because "the guys wanted to know what they can get after
the union was out." Gonzalez admits that a several page
document was passed out at the meeting showing company
employee benefits (heretofore shown to be the Compone-
trol employee benefit pamphlet), that McGlone discussed
these benefits, and that the employees asked McGlone
questions about the benefits. However, Gonzalez denied
that McGlone made any promises that the employees
would get these benefits and even denied that there was
any talk about the Union at the meeting that night. Under
cross-examination Gonzalez showed a tendency to evasive-
ness which seriously reflects on his credibility.
Under examination of his probity, Gonzalez first testified
that McGlone never gave him any money and then that
McGlone from time to time had lent him $2 or $3 and he
finally admitted that McGlone loaned him $50 to get out of
jail only some 4 months before the hearing herein.
Based on Gonzalez' obvious lack of candor as disclosed
by his demeanor and his evasiveness about the favors he
receives from time to time from McGlone, I do not credit
his testimony that McGlone made no promises at all to the
employees about getting the Componetrol employee
benefits. I further discredit Gonzalez' testimony because he
even testified that the Union was not even mentioned at
the meeting in view of the fact that the meeting was held
only 2 days prior to the then scheduled decertification
election and in view of the further fact that Kurlik had
invited McGlone to the meeting, "because the guys wanted
to know what they can get after the union is out."
Charles Wavra, who is employed by Respondent as a
specialist, also testified for Respondent. At the time here
material, Wavra's work required him to shuttle daily
1s Contingent upon McGlone's getting the approval of his superiors for
the installation of the Componetrol benefits.
between Lammert's unionized Chicago plant and Lam-
mert's smaller auxiliary but nonunion facility in Addison.
Wavra's testimony shows that he attended the employee
meeting of January 13, 1975, here under discussion and
that he and Kurlik who had arranged the meeting, had
requested McGlone to bring to the meeting printed copies
of the Componetrol employee benefit program so that it
could be discussed before the then pending decertification
election took place a few days later.
Wavra testified that after McGlone had distributed
copies of the Componetrol benefit program, it was
discussed but that McGlone made no commitments or
guarantees that Respondent would give the Chicago plant
employees the Componetrol employee benefits if the
Union was voted out because McGlone thought they were
too liberal. Wavra also testified that McGlone had told the
assembled employees that the Componetrol employee
benefit package was "a piece of garbage." I discredit
Wavra's testimony because McGlone's own testimony fails
to show that he made the extreme statements attributed to
him by Wavra.
I also discredit Wavra's testimony because it is contrary
to the whole tenor of the composite testimony of other
credible witnesses whose testimony leave no doubt that
McGlone promised the Componetrol employee benefits or
efforts to get such benefits for Respondent's Chicago plant
employees if the Union went out.
Since the record shows that McGlone exerted every
effort to win the forthcoming decertification election for his
Employer, I further find that he would not have engaged in
the wholesale denigration of the Componetrol employee
benefit package attributed to him by Wavra as that would
have been counterproductive of his objective to help win
the decertification election by a showing of the superior
employee benefits that Componetrol offered to nonunion
shops. At most the record shows that McGlone only
expressed some reservations about whether Respondent's
parent company, Componetrol, would allow Respondent
to put into effect to the full extent some of the Compone-
trol benefits even if Respondent won the decertification
election. But the record leaves no doubt that McGlone was
invited to the employee meeting by decertification ring-
leader Kurlik, according to Kurlik's own testimony, for the
express purpose of giving McGlone the opportunity to tell
the assembled employees what the Company would offer
them in the way of established employee benefits for
nonunion shops, if the employees voted the Union out. It is
significant that Respondent who called Kurlik as a witness
failed to examine Kurlik as to what McGlone told the
employees at the meeting, from which I infer and find that
Kurlik if asked would have corroborated of General
Counsel's witnesses that McGlone promised the employees
the superior Componetrol benefits if the Union was voted
out. Under all of these circumstances I do not find Wavra's
testimony creditable that McGlone at the meeting made no
promises to install the Componetrol benefits if the Union
was out and especially his testimony that the Union was
not even mentioned at the meeting.
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
Based on the above credibility determinations, I find and
conclude that Plant Manager McGlone at an employee-
called meeting held at a private home on January 13, 1975,
promised the assembled union employees to get for them
the superior Componetrol employee benefits if they
abandoned the Union, substantially as alleged in para-
graph VIIl(d)(l) of the complaint, as amended, in violation
of Section 8(a)(1) of the Act. Respondent contends that if
any commitment was made by McGlone to the assembled
union employees, it was merely a commitment "to try" to
get for them the superior Componetrol employee benefits
rather than an absolute promise or guarantee of such
benefits. I find and conclude that even if the evidence
showed that McGlone merely told the employees that he
would "try" to get the Componetrol benefits for them, such
conduct would still constitute an unlawful inducement of
possible economic benefits if the employees abandoned the
Union, in violation of Section 8(a)(1) of the Act.
Respondent's further defense is that McGlone as plant
manager had no actual authority on his own to make any
changes in the employees' then existing benefits if the
employees abandoned the Union because any such
changes would have to be approved "by one or two levels
higher than his own." While the evidence does support this
factual conclusion, I likewise find that defense without
merit because McGlone obviously did have the authority
"to try" to get his superiors to install the superior
Componetrol employee benefits if the employees aban-
doned the Union because as shown above the mere
promise "to try" to get the Componetrol benefits in
exchange for the abandonment of the Union also consti-
tutes a violation of Section 8(a)(1) of the Act.
All other contentions by Respondent in defense of the
allegation of the complaint here under consideration have
been considered and also found without merit.
With respect to the remaining allegation under subpara-
graph 2 of paragraph VIII(d) of the complaint, as
amended, Respondent contends that there has been a
complete failure of proof thereon that McGlone, "Prom-
ised the employees that once the Respondent moved its
plant [meaning to the new plant then under construction in
Addison, Illinois], the absence of a union would mean that
the employees would receive greater economic benefits,
including, but not limited to, higher wages, more sick days,
and a bonus after each year." (Emphasis supplied.) I agree
with that contention. The record is barren of any evidence
that McGlone at the employee called meeting of January
13, 1975, mentioned "higher wages" or "bonuses" and in
fact those subjects are not even listed in the Componetrol
printed package of employee benefits. As for the alleged
promise of the Componetrol benefits in the absence of a
union "once the Respondent moved its plant," the record
likewise appears barren of any testimony that McGlone
even made any mention at the employee meeting with
reference to the moving of Respondent's plant. The brief of
counsel to General Counsel does not appear to request any
specific findings on subparagraph of the complaint here
under discussion. For all of these reasons I will recommend
the dismissal of the allegation in the noted subparagraph 2
of paragraph VIII (d) for failure of proof.
6. Alleged unlawful promises by company vice
president and company attorney at employees
meetings of February 27 and March 3 and 5, 1975
Paragraph VIII (e) of the complaint, as amended, reads:
"In or about February 27, 1975, March 3, 1975, and March
5, 1975, Respondent, by its agent, during employee
meetings, promised its employees economic benefits,
including, but not limited to, attendance bonuses, raises
and pension benefits, if the employees opposed the Union
and/or discontinued their support of the Union."
Related paragraph VIII (g) of the complaint, as amend-
ed, reads: "On or about March 3, 1975, Respondent, by its
officer and agent Charles O'Hagan, at Respondent's
facility, solicited employees to present their grievances to
him, and promised the employees that the grievances
would be resolved."
The undisputed background facts to the above allega-
tions show that just prior to the Board's decertification
election of March 7, 1975,i6 a vigorous campaign was
going on between the Company and the Union for the
favorable votes of the unit employees in the imminent
election.
The record contains many union letters to the employees
exhorting them to vote for the Union and several company
letters exhorting the employees to vote for the Company,
each with reasons why the employees should vote as urged.
Most of the union letters were simply signed, "District No.
8," followed by the name of the International. All of
Lammert's letters were signed by Charles E. O'Hagan as
"Vice-President-Personnel," although he was not resident
at the Chicago plant. Some of O'Hagan's letters to the
Lammert employees are addressed personally to individual
employees by their given names, such as, "Dear Robert";
referring to Robert Minor, and "Dear Unzo," referring to
Unzo Givens. Both Minor and Given are strong union
supporters.
O'Hagan's testimony shows that he is actually a vice
president in charge of industrial relations of 18 of the
ultimate parent Company's factories, of which Lammert's
is only 1. O'Hagan has been employed for 29 years by a
subsidiary of the parent company which has control of the
industrial relations of these 18 manufacturing facilities and
has been that subsidiary's vice president in charge of
industrial relations for the past 15 years.
I infer and find from the record that O'Hagan, as the
subsidiary's industrial relations expert, caused the three
employee meetings to be held at Lammert's Chicago plant
on February 27 and March 3 and 5, 1975, in an effort to
persuade the employees to vote for decertification of the
Union in the election scheduled to take place on March 7,
1975.
At the meetings, O'Hagan had with him William P.
Treacy, a lawyer of many years experience in representing
employers in labor law matters, as a cospokesman for
'6 The election was originally set for January 24, 1975.
908
LAMMERT INDUSTRIES
Respondent Lammert." Treacy had become known to
Lammert employees when he was called in by management
to settle an alleged unfair labor practice strike which
started in the month of February, and ended just 2 days
prior to the first employee meeting of February 27, 1975.
Treacy represented Lammert throughout the hearing
herein except for a brief interval when he called in
associate counsel to handle that part of the hearing which
dealt with an unfair labor practice charge by the pleadings
to Treacy as an agent of Respondent as detailed in a later
section of this Decision. O'Hagan was unknown to the
employees at the Lammert plant prior to the employees
meetings here under consideration. McGlone as manager
of the Lammert factory introduced O'Hagan and Treacy to
the employees at the first meeting. The employees were
told that they were not required to stay at the meetings and
that they were free to leave the meetings at any time if they
so desired. Each of the three meetings were held on
company time and on company premises.
At the three meetings O'Hagan generally deferred to
Treacy the numerous questions asked by the employees
because Treacy was the Company's attorney and it was his
job to keep the meetings legal and not to jeopardize the
Company. As no contemporaneous notes were kept on
what occurred at the three meetings, the record contains
only the recollections of witnesses who were present as to
what Treacy and O'Hagan said at the meetings. At the first
meeting Treacy told the employees that the meetings were
essentially get-acquainted meetings and invited questions
from the employees but somewhere close to the beginning
of the meeting either Hagan or Treacy stated the Compa-
ny's reasons for its drive to decertify the Union. These
reasons are best expressed by a nearly contemporaneous
letter sent by O'Hagan the day after the first employee
meeting to employee Robert Minor who had walked out of
the first meeting because of his displeasure over the way
Treacy and O'Hagan were seemingly avoiding questions
put to them by the employees. O'Hagan's letter (G. C. Exh.
7) to Minor reads as follows:
Dear Robert:
Thank you for meeting with us yesterday. I am only
sorry about one thing - that we didn't meet a year or
two ago.
You asked questions that make good sense. A
question, for example, that makes a lot of sense is,
"Why does Imperial-Eastman prefer not to have a
union.?"
We assured you that we would put everything we
said in writing - and sign it. So here are our signed
answers to this question:
1. We know we can treat every single person 100%
fairly without a union. We know this because we have
done just this for many years - with thousands of
employees.
2. We know - and you do too - that where there
is a union there is always the risk of a union forced
strike.
'7 Thus. there were two spokesmen for Respondent. O'Hagan and
Treacy, at the above indicated employee meetings called by Respondent
against the single but unnamed agent referred to in the complaint. Treacy
Strikes, of course, are not inevitable. We won't force
a strike. But union-forced strikes do happen. And with
a union, such a strike could happen right here at
Lammert. A short strike just ended. Another strike
could last a long time.
Before you make up your mind how you want to
vote, please consider that a union-forced economic
strike:
I. Could force us to replace the strikers -
permanently.
2. Could force us to transfer your work to
other Imperial Eastman plants - we have good
people now on layoff who would be glad to have
a job.
There's a lot more. Please, doyourselfa favor - let's
talk it over beforeyou vote! (Emphasis as in letter.)
Sincerely,
Charles E. O'Hagan
Vice President
Industrial Relations
No violation of the Act is alleged by reason of O'Hagan's
above letter to employee Minor.
However, serious questions of fact and law are raised by
the evidence in this proceeding on whether the numerous
responses made by Treacy and O'Hagan at the meetings to
specific questions by the employees as to what benefits
they could expect from management in the absence of a
union, constitute unlawful promises, notwithstanding
Treacy's and O'Hagan's admitted, repeated, and unswerv-
ing assertions that they were not making and could not
make any promises of economic and other employee
benefits because such promises before the decertification
election would be unlawful. General Counsel contends
that, notwithstanding these verbal disclaimers, Treacy's
and O'Hagan's responses to the employee questions
constitute promises, both direct and indirect, of employee
benefits in the absence of a union at the plant. Respondent
relies on its reiterated disclaimers of promises as its
defense.
Four employee witnesses testified for General Counsel
and three employee witnesses and Treacy and O'Hagan
testified for Respondent, on the responses Treacy and
O'Hagan made to employee questions as to what employee
benefits, if any, they could expect to receive from the
Company, if the employees voted to decertify the Union.
A common twin thread runs through virtually all of the
combined testimony of the seven employee witnesses. One
of these common threads, with some qualification on the
testimony of employee Gonzalez, is that Treacy's standard
response to all employee queries as to what benefits they
could expect without union representation was that under
the law he could not and was not making any promises but
that he simultaneously nevertheless asked the employees to
trust the Company and pleaded with them to give the
Company a chance to show what it could do for them
without union representation and further told them that if
testified that in the past 10 years he had "participated in roughly 1,000
meetings of the sort that have been testified to in this trial [the present
proceeding I as the meetings of February 27, March 3 and March 5."
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were not satisfied at the end of a year with what the
Company was doing for them without union representa-
tion, they then could take steps to have the Union back as
their bargaining representative. Employee after employee
witness, except Mario Gonzalez,18 testified that Treacy
pleaded with the employees at the meetings "to trust" the
Company even as he told them he could not make any
special promises of employee benefits in the absence of the
Union. Treacy does not deny that, while he steadfastly
declined to make any express promises, he repeatedly
appealed to the employees "to trust" the Company when
asked what employee benefits they would have without a
union. Returning now to the testimony of employee Mario
Gonzalez, the record shows that while he only testified that
Treacy made no promises of employee benefits at the
meetings, the record fails to show that he was ever asked by
any counsel whether Treacy, in responding to questions
about employee benefits, asked the employees "to trust"
the Company while simultaneously refusing to make any
specific promises. If Mario Gonzalez had been asked if
Treacy's response to queries about employee benefits, had
been for the employees "to trust" the Company, I infer and
find from the testimony of all the other employee witnesses
that Gonzalez would have testified as they did that Treacy
did use that expression.
The other common thread that runs through the
testimony of all the seven employee witnesses, including
Gonzales', is that when the employees asked what would
happen to their long vested right to present grievances if
the Union was voted out, O'Hagan responded and
promised that the employees would be given the right of a
direct appeal to him personally in the event Plant Manager
McGlone turned their grievances down. This was a new
privilege or benefit that the employees never had in the
past. The credited testimony of the employee witnesses
further shows that O'Hagan also assured the employees at
the meetings that in any appeals to him on grievances he
would give the grievant employee the benefit of the doubt.
Respondent does not deny that O'Hagan promised the
employees the right of a personal appeal to him on any
action taken by Plant Manager McGlone adverse to an
employee.
The following is representative of the credited testimony
of all the employee witnesses in the case on the responses
they received from Treacy and O'Hagan at the employee
meetings in answer to their questions on the benefits they
would receive if the Union was voted out. As heretofore
noted these employee meetings were held only days before
the March 7, 1975, decertification election. We take up first
the employee witnesses in behalf of General Counsel.
a. General Counsel's employee witnesses
Employee Robert Minor, heretofore referred to in connec-
tion with another issue. Minor's testimony shows that at
the first employee meeting he asked Treacy why the
Company was opposed to having a union. I do not credit
Minor's testimony that Treacy replied that Respondent
wanted "a chance to prove that they [employees] can do
better things with the Company than they could with the
Union .. ." because that testimony is not corroborated by
any other employee witness and is in fact denied by fellow
employee witness Charles Wavra, as will be shown in the
discussion of Wavra's testimony below. I further discredit
this part of Minor's testimony because any examination of
the record would show Treacy to be too able a lawyer and
too long experienced and astute in labor law to have made
such a statement to Minor and the assembled employees.
In fact the testimony of virtually all the employee witnesses
shows that Treacy repeatedly told the employees point
blank that neither he nor O'Hagan was making any
promises of wage raises or employee fringe benefits if the
Union was voted out. However, Minor's testimony and
that of virtually all other employee witnesses show that
Treacy, in response to questions of what the employees
could expect without a union, implored the employees "to
trust" the Company; the legality of that response and other
conduct outlined below will be considered at the end of
this section of the Decision.
Employee Unzo Givens, heretofore referred to in connec-
tion with another issue. Givens' credited testimony shows
that at the first meeting O'Hagan and Treacy appealed for
their votes in support of decertification as "they would like
for us to trust them for a year." His testimony further
shows that when the employees pressed O'Hagan and
Treacy for assurances on the employee benefits they would
receive if the Union was voted out, O'Hagan and Treacy
would reply, "Well, you just have to trust us, and I am sure
that the other places [meaning the ultimate parent
company's other 17 factories] trust us, they are very
happy." Givens' further testimony shows that at the second
meeting when the employees asked for some proof that the
Company's other nonunion factories had better employee
benefits, Treacy replied that "they had charts that he could
bring down to try to establish this point." Givens' further
testimony shows that when employees asked what Respon-
dent's position would be on important employee benefits,
Treacy replied, "Well, I can't answer that now ... but just
trust us and I am sure that things will work out real good
for you." Givens also testified that when the employees
pressed the two company spokesmen for a "statement of
guarantees," either Treacy or O'Hagan would reply, "I
can't do that now, but after everything is over, then we
could come in and just sit down and . . . know what our
course would be if the union is decertified." I do not find
that alleged reply to be a promise of better benefits if the
Union is decertified. I further find that, even if that alleged
reply is interpreted as a promise, I do not credit Givens'
testimony that Treacy made such a reply. I also do not
credit that alleged reply because it flies in the face of
Givens' own testimony and that of all other employee
witnesses herein, as well as that of Treacy and O'Hagan,
that Treacy and O'Hagan repeatedly insistently told the
assembled employees that the Company was not making
any promises of any kind of benefits if the Union is voted
out.
Givens also testified, just as Minor had, that when
employees asked what would happen if the employees had
"' Not to be confused with Santo Gonzales.
910
LAMMERT INDUSTRIES
grievances, O'Hagan replied in effect that, if a dispute
arose between an employee and the plant manager, the
employee would have the right of an appeal to him and
that all the employees had "to do is to just call me and I
can come down . . . and we will sit down and discuss the
matter," and that "we lean toward the employee."
Givens also testified to what transpired at the third and
final employee meeting held on March 5, 1975, just 2 days
before the decertification election. At that meeting Treacy
and O'Hagan brought to the meeting a number of charts
showing a comparison of wages and fringe benefits
between Respondent's union and nonunion shops. These
charts had been brought from O'Hagan's office where they
had been on display, in response to employee requests at
the prior employee meeting for some proof that employees
at the parent company's nonunion plants do as well or
better than the employees at the parent company's union
plants.
One of the charts brought to the March 5 meeting listed
17 plants, 12 of which were nonunion plants and 5 were
union plants. The chart shows the starting rate of pay, top
rate, average rate, night-shift premium, cost-of-living and
average rate increase in the past 12 months for each of the
17 plants, including Respondent Lammert's Chicago plant.
The chart shows average starting wage rate and average
top rate in the parent company's 12 nonunion plants were
$3.12 and $5.43, respectively, as against $3.02 and $5.25 in
the parent company's 5 union shops. However, the chart
showed that Lammert's organized plant employees enjoyed
a higher average starting wage of $3.49 as against the
average starting rates of both parent company's nonunion
and union plants as aforenoted. Similarly, the chart shows
that Lammert's organized plant employees also enjoyed an
average higher top rate of $5.62 as against the lower
average top rate of both the parent company's nonunion
and union plants as aforenoted.'9 From the record as a
whole, I find that this advantage that Lammert's employees
have in wage rates over the parent company's other plants,
both organized and nonorganized, in other parts of the
country, is due to the fact that wage rates in the
metropolitan area of Chicago is higher than in the less
populated areas where the parent company's other plants
are located. Aside from this factor, I find that the chart
shows that pay-wise the employees in the Company's
nonunion shops generally do better than those in the
Company's union plants.
The second chart brought into the March 5 meeting lists
11 plants, 5 of which are union shops and 6 are nonunion
plants. The chart shows the rate of pay in the 11 plants for
10 representative or "bench mark" jobs, that is, jobs
common to 3 or more plants. This chart likewise shows that
the six nonunion shops generally pay higher rates for bench
mark jobs than the union shops.
The third and last chart brought into the March 5
meeting again lists the 17 plants owned by the parent
company, 12 of which are nonunion shops and 5 are union
shops. This chart shows the existence or nonexistence of all
benefits in the 17 plants, including Lammert's Chicago
plant. Although Respondent in its brief contends that it is
1i The chart also shows that the Lammert organized employees also
received a higher average overall rate than was paid at either the parent
Company's nonunion or union plants.
virtually impossible to draw any conclusion from the chart,
I concur in the comparisons made therefrom by General
Counsel in his brief and accordingly find the chart shows
(I) that generally the nonunion shops enjoy an attendance
bonus whereas the union shops generally do not, (2) that
the nonunion shops have a suggestion system whereas the
union shops generally do not, (3) that the nonunion shops
generally have better safety equipment, job evaluation,
department seniority, and job injury pay than the union
plants.
After the wall-sized charts were hung on the walls of the
meeting room with the assistance of Givens and other
employees, Treacy invited questions from the employees
on the data shown on the charts. From Givens' testimony
as a whole, I find that the assembled employees got the
impression from the charts that the employees in the parent
company's nonunion shops were receiving higher wages
and better employee benefits than the employees in the
Company's union plants. Givens' testimony further shows
that when the employees asked about specific benefits they
would receive in the absence of the Union, Treacy's stock
reply was that "you just have to trust us," that he could not
go into details, and that he could not make any direct
promises to the employees. Other testimony by Givens
shows that when Treacy was asked about specific benefits
Lammert employees might expect to receive if the Union
was voted out, he replied, "I can't promise you direct, but
[referring to the charts] you [can] see for yourself."
Carl Brown, the union shop steward heretofore referred
to in connection with other issues. Brown's credited
testimony as to what Treacy and O'Hagan said at the three
employee meetings is substantially the same as that of
employees Minor and Givens; namely, that, in replying to
employee questions as to what benefits the Lammert
employees would receive without union representation,
Treacy avoided a responsive answer by asking the
employees to "just trust us for one year, and if you aren't
satisfied with the way things are going without a union, at
the end of one year you can bring the union back in."
Brown's credited testimony further shows that Treacy, in
answering such inquiries, repeatedly responded, "You just
. . . have to trust us." Brown's credited testimony also
shows that, when the employees asked what would happen
to their right to file grievances if the Union was voted out,
O'Hagan promised the employees that they could take
their grievances to him personally if they got no satisfac-
tion at the plant level.
Employee Walter Ham, heretofore referred to in connec-
tion with other issues. Ham attended the employee
meetings of March 3 and 5. As shown above, the credited
testimony of virtually all of the employee witnesses shows
that Treacy recurrently asked the assembled employees "to
trust the Company" while at the same time refusing to
make any commitments or promises of specific employee
benefits the employees would receive if they voted the
Union out. On the same theme of trusting the Company,
Ham's credited testimony shows that at the March 5
meeting Treacy told the employees, "if we vote for the
Union we are telling them [Respondent] that we don't trust
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them." Ham's further credited testimony shows that Treacy
followed the above statement up with the declaration that,
"If you try us for a year and you are not satisifed, you can
vote the Union back in."
Because Ham's memory appeared faulty, I credit Ham's
above-described testimony solely because it is corrobo-
rated by the testimony of other employee witnesses as
shown above. I do not credit Ham's testimony that at the
March 3 and 5 employee meetings Treacy told the
employees that they would have bonuses20 without a
union, because it is not corroborated by any other
employee witness and because Ham's memory as noted did
not appear to be reliable 21 although by his demeanor I
regard Ham as a totally honest witness.
In addition to the above findings, the record shows that
employees Minor and Brown, strong union adherents, and
other employees walked out of some of the employee
meetings because they felt that the meetings were meaning-
less since Treacy and O'Hagan refused to make any
promises to employee questions on what they could expect
in the way of wage increases and fringe benefits if the
Union went out and because they were not satisfied with
Treacy's indefinite promise that the Company would treat
the employees fairly if they voted the Union out and were
distrustful of his plea to trust the Company for a year.
The above concludes the summary of the most relevant
testimony of General Counsel's employee witnesses on the
issues here under consideration.
b. The testimony of Respondent's three employee
witnesses and that of Treacy and O'Hagan
Employee Wavra, heretofore referred to in connection
with another issue. Wavra attended all three of the
employee meetings here under discussion. Wavra was a
more articulate witness than most of General Counsel's
employee witnesses. His credited testimony shows that at
all of the three meetings Treacy as spokesman for
Respondent declined to make any promises or commit-
ments as to what wages and benefits the employees would
receive without a union to represent them because that was
prohibited by law, but that the response of both Treacy
and O'Hagan to inquiries on such matters was answered by
requests to trust the Company for a year and that if at the
end of a year the employees did not like the way
Respondent treated them "they could always vote the
Union back." Wavra's credited testimony also shows that
both Treacy and O'Hagan told the employees that they
would be treated fairly if the Union was voted out. Wavra,
like all the other employee witnesses, testified that
O'Hagan promised the assembled employees that they
could take an appeal on any "problems" they had to him if
their grievances on such problems were not satisfactorily
settled at the plant level.
20 Although Ham's testimony does not show the type of bonus he had
reference to, it appears from the complaint and the testimony of other
employee witnesses, particularly Shop Steward Brown, that Ham's reference
was probably to attendance bonuses.
21 For example on the unreliability of his memory, Ham under cross-
examination testified that he could not recall the word "promise" or
"promises" used at any time during the March 5 employee meeting whereas
all the other employee witnesses testified that Treacy repeatedly refused to
It will be recalled that the testimony of employee Minor
was discredited above that Treacy at the first employee
meeting told the employees that Respondent wanted "a
chance to prove that" the employees "can do better with
the Company than they could with the Union" because
that testimony was not corroborated by any other employ-
ee, among other reasons. I fully credit Wavra's "No, sir," to
the question put to him by Treacy, "In any of the meetings
was it said by anybody that the Company would do better
for the men if they voted the union out." As heretofore
noted, the record shows Treacy as too astute and too
experienced a labor law lawyer to have made an obviously
unlawful promise to the employees that the Company
would do better with them without a union than it would
do for them with union representation.
Passing now to another phase of Wavra's testimony and
based solely on Wavra's testimony, counsel for General
Counsel requests a finding that "Treacy promised the
employees that the Company would not cut their pay if the
Union went out...." The pertinent testimony is as
follows:
Direct Examination
Q. (By Treacy) Was anything at all said in the
second meeting about the company's ability without a
union to cut people's pay?
A. (By Wavra) You said they could do it.
Q. Was this in response to someone else's state-
ment or did Ijust come out and say it?
A. Someone asked you if you could. Asked you
whether you could do it without a union.
Q. Did I answer that question?
A. You said, "Yes, it is true, we could without a
union."
Cross-Examination
Q. Go to the second meeting you attended on
March 3rd. It is true, isn't it, Mr. Wavra, at that
meeting Treacy promised you he wouldn't cut your pay
if the union went out.
A. No, sir.
Q. What did he say?
A. He said that no company would do it, that if
they did do things like that, people wouldn't trust them
and then we would have another election in another
year.
Q. So he didn't promise you - wouldn't cut the
pay because no company did that?
A. That's not a promise, its a statement.
Q. He made the statement that he would not cut
your pay if the Union went out; is that correct?
A. Right.
make any direct or specific promises of employee benefits if the Union was
voted out. However, this refusal to make specific or direct promises does not
rule out the question of whether Treacy's plea to the employees "to trust the
Company" and other conduct by Treacy and O'Hagan do not constitute
promises of rewards to the employees if they voted the Union out in the then
forthcoming decertification election. Decision on that issue is reserved for
discussion below.
912
LAMMERT INDUSTRIES
The record as set forth above shows that Treacy, in
response to a question, forthrightly told the assembled
employees that the Company in the absence of a labor
contract would have the right to reduce wages, but at the
same time told the employees that the Company had no
intention of cutting wages if the Union was voted out. I
find that Treacy was stating a reality, not a promise, when
he told the employees in effect that there was no chance
that the Company would cut wages if the Union lost the
decertification election. That reality is that no ongoing
business enterprise in these days of inflation and spiraling
wage increases would even attempt to cut wages and that
no firm which desires to operate a nonunion shop, such as
Respondent does, would dare to cut wages under prevail-
ing economic conditions as such a step would inevitably
lead to militant efforts by the employees to restore union
representation.
I find that Treacy's assurance to the employees of no
wage cuts if the Union was voted out, if deemed a promise,
was in effect a negative promise of no adverse action,
rather than the classical promise of higher wages and better
fringe benefits as an inducement to employees to keep
them from ousting the Union as their bargaining agent.
I further find and conclude that, under the prevailing
condition of spiraling wages and the sense I get from the
entire record, Respondent's employees were expecting
wage increases, not wage cuts, regardless of the outcome of
the decertification election, and that Treacy's negative
promise of no wage cuts if the Union was voted out played
no part in the outcome of the decertification election which
as noted above the Company won by only one vote.
As aforenoted, the paragraph of the complaint here
under consideration (par. VIII (e) as amended), alleged
that at the employee meetings of February 27 and March 3
and 5, 1975, the Respondent "promised its employees
economic benefits . . . including . . . raises . . . if the
employees . . . discontinued their support of the Union."
(Emphasis supplied.) As the General Counsel seeks a
finding of a promise of no wage cuts if the Union is voted
out, I find that proposed finding goes outside the scope of
the pleadings.
For all of these reasons and without further discussion
herein, I find and conclude that Treacy's statement to the
assembled employees, that Respondent had no intention of
cutting wages if the Union was voted out, does not
constitute a violation of the Act and further find and
conclude that General Counsel is not in any event entitled
to the finding it seeks here that "Treacy promised the
employees that the Company would not cut their pay if the
Union went out," because that finding lies outside the
scope of the relevant pleadings.22
Employee Mario Gonzalez, a witness for Respondent,
heretofore referred to on another issue. Gonzalez' testimo-
ny shows that he attended all three employee meetings here
under discussion. Although Gonzalez was shown above not
to be a creditable witness in connection with another issue,
I credit his testimony on what occurred at the three
meetings because it is in conformity with the testimony of
22 I find that the issue of whether Treacy told or promised the employees
that Respondent would not cut wages if the Union went out was not tried by
consent, as an examination of Wavra's testimony under direct examination
all other employee witnesses. Thus his credited testimony
shows that Treacy made no promises of benefits to the
employees if the Union went out, but did ask the
employees to trust the Company. Gonzalez' credited
testimony further shows that O'Hagan promised the
employees the right of a personal appeal to him in the event
a grievance went against an employee at the factory level.
Employee Norbert Kurlik, the prime mover for the
decertification of the Union, heretofore referred to in
connection with other issues. Kurlik's testimony is essen-
tially the same as that of all other employee witnesses, to
wit, (I) that Treacy made no promises of benefits if the
Union went out because that would be unlawful under the
Act; (2) that Treacy asked the employees to trust the
Company for a year because if they were not then satisfied
with what the Company was doing for them they could
bring the Union back; and (3) that O'Hagan promised to
look into grievances if the employees were not satisfied
with the way Plant Manager McGlone handled grievances
at the plant level.
Attorney Treacy, who took the stand as a witness for
Respondent. Treacy's testimony is substantially in accord
with the testimony given by the employee witnesses, with
amplifications. Samples of his credited testimony are as
follows: "I said frankly that we could not and would not
make any promises or commitments on benefits whatever,
and I explained to them for the second time that this was
unlawful, but that we would ask employees to trust the
company for a year, work with the company for a year ...
and at the end of that time the law permitted them to have
another vote if they wished to do so. I pointed out that they
had a union at that plant [Respondent's involved Chicago
plant] for a number of years. .... We were asked, for
example, if we had unions and if we didn't [at other plants
of the parent company], and we were asked how do you
treat people? And we tried to convey the impression we
tried to be fair to all the employees whether they were
union people or not, but that all people would be treated
just as fairly as if they had a union. .... If you put your
trust in the company for a period of a year without the
union then at the end of that time you could decide
whether things have worked out well for you or whether
they haven't, and if you don't think they have, this union or
some other union will be glad to come and get you and you
can write this year off and say: It didn't work."
General Counsel seeks a finding that, "Treacy told the
employees that all companies had benefits, and he
promised that they will receive benefits." The request for
the finding that Treacy "promised that they will receive
benefits" is denied because it is contrary to Treacy's
testimony as shown in the transcript of his testimony as
corrected. As corrected, the transcript shows that Treacy
testified as follows: "Now, with respect to the more prosaic
benefits, such as holidays, vacations, and so forth, our
standard answer [to employee questions] was: Yes, of
course the company has these benefits; naturally it does.
Every company has them, and we were asked, can we
guarantee they [the employees] will get them. No; we can't
by Treacy as counsel for Respondent shows that the alleged promise of no
cuts in wages came in merely as a background sample of the questions and
answers that were made at employee meetings in question.
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do that, because you know we can't make any promis-
es...." With respect to questions about pensions and
insurance benefits, Treacy's testimony shows that he
replied, "We [meaning himself and O'Hagan ] told them we
could not make any commitments, that they would have to
trust the company to treat the employees fairly."
Treacy's further testimony shows that in answering
questions from the employees on what benefits they could
have if the Union was voted out, that "it was repeated over
and over again in different ways, that if they voted the
union out they would be treated fairly and treated
decently, that we would not and could not make any
commitments whatsoever, any tangible or precise guaran-
tees."
Respondent's adjunct counsel asked Treacy, "Did you at
all say that the men [employees] could or would keep all of
their benefits [under the collective-bargaining agreement]
if the Union [which had been representing them for some
30 years] was voted out." Treacy's credited reply to the
employees on this question was: "I said we couldn't
guarantee even that. I said: Strange as it may seem it might
be dangerous under the law to even make you a guarantee
that you could retain everything that you have, now, if you
voted the union out. I said: Even that could be considered
as a promise, and on the other hand I said: Use common
sense. Every company has benefits. Every company has
pensions, insurance and holidays and that sort of thing,
and you will have to consider for yourself: Are we going to
take things away. Would you take things away. But we
can't even give you assurances on anything as basic as
that." 23
I asked Treacy what answer was given employees at the
meetings as to what avenue of appeal they would have on a
discharge in the absence of a union. Treacy answered that
the reply to that question at the employee meetings came
primarily from O'Hagan and that O'Hagan's reply went as
follows: "He [O'Hagan] said that he had been with
[parent] company for 28 years in his position as an
industrial relations man and . . . 10 or 15 years as vice
president [in charge of industrial relations], that it was one
of his main functions, if not his main function, to see that
all employees in all plants, union and nonunion, were
treated fairly; that any employee in any plant anywhere in
the country was welcome to call him at his office or at
home, day or night, if he couldn't solve the problem
internally, and then he [O'Hagan] added sort of as an
aside.... In your plant I would like it if you go to see
[plant manager] McGlone, first, if you have a problem, but
if you can't settle it with Earl McGlone, you like any other
employees are free to call me day or night at home, and I
will come down to your plant as soon as I can."
Asked by me if the right of appeal to O'Hagan was
something new that O'Hagan was offering to the employ-
ees, Treacy replied, "I am sure they never knew of this
access before."
Asked by adjunct counsel if O'Hagan told the employees
at the employee meetings here in question about whether
O'Hagan made himself available at other plants on
21 Counsel for General Counsel also seeks support for his proposed
finding that Treacy "promised the employees that they will receive
benefits." on the basis of Treacy's above-quoted testimony. I find that
grievances, Treacy's credited testimony shows that
O'Hagan told the Lammert employees that he had made
himself available for such purposes at all of the parent
company's multiple plants "on many occasions when he
had visited these other plants...." Treacy's testimony
further shows that O'Hagan told the employees that this
privilege "was being extended to the employees at
Lammert Industries if they cared to use it .... "
With reference to Treacy's admitted promise of fair
treatment of the Lammert employees if they voted the
Union out, Treacy's credited testimony shows that he told
the employees at the meetings here in question that they
[the employees] had a great club or weapon over the
Company "if we were unfair, then a year from now they
would bring back a union, and we wouldn't have a chance
of winning an election, so that for many reasons it was in
our own best interest, the company's best interest, to be fair
to people." Treacy also told the employees that another
reason that the Company would treat them fairly even if
they were not represented by a union was that, "We need
these people [employees]. We have an investment in them.
They know our business and our work .... "
Charles E. O'Hagan, vice president in charge of industri-
al relations of the parent company which owns 18 plants
throughout the country, including Respondent's Lam-
mert's Chicago plant, here directly involved.
O'Hagan's credited testimony follows that of Treacy and
all of the employee witnesses that at the three employee
meetings here under discussion in that, in the words of
Treacy, neither he nor Treacy made "any commitments
whatsoever, any tangible or precise guarantees" on what
the employees would receive in the way of wages and fringe
benefits if they voted the Union out, but that all questions
with respect to such matters were answered with the
statement that the employees would "have to trust us."
In line with the testimony of all other witnesses in the
case, O'Hagan admitted that he told the assembled
employees that in the event they voted the Union out they
would have the right of appeal to him on any grievances
which had been turned down at the plant level. In that
connection, he was asked on direct examination, "Was any
question asked if the union was voted out to whom the men
would present their grievances inside the company.?" To
this O'Hagan replied as follows: "Yes, they asked that
question, and I said that what I done in any of our other
grievances [meaning at nonunion shops owned by the
parent company], I would get involved in it; but I
preferred in all instances for them to go to their supervisor
first of all and discuss it with them. And I pointed out that
I had been in the industry for some 40 years on both sides
of the fence and I was well aware of the fact that
supervisors wasn't necessarily always right. I was also
aware of the fact that employees weren't necessarily right.
But I would listen to both sides, get the facts, and see what
can be done to settle the problem fairly for both sides."
The above concludes the summary of the pertinent
testimony of what occurred at the company called
employee meetings of February 27 and March 3 and 5,
Treacy's quoted testimony is quite contrary to the proposed finding and
again deny the requested finding.
914
LAMMERT INDUSTRIES
1975, which as seen preceded the Board-conducted
decertification election of March 7, 1975, which the Union
lost by a vote of one.
While there are no essential conflicts of fact on what Mr.
Treacy, as principal spokesman for the Company, told the
assembled employees at the three meetings, I find that
Treacy's testimony as outlined above and which I fully
credit, presents a fuller, more comprehensive, and more
accurate picture of what occurred at the meetings than the
testimony of the employee witnesses.
Since there are no meaningful conflicts of fact on the
relevant occurrences at the employee meetings, the overrid-
ing issue for decision is not one of credibility but instead a
mixed question of fact and law of whether Treacy's
admitted urgings of the employees at the meetings "to trust
the Company" to deal "fairly" with them for a year
constitute unlawful promises of economic benefits, despite
Treacy's concurrent and repeated refusals to make any
specific promises or commitments of benefits if the
employees voted the Union out.
Discussion and Conclusions
As noted at the beginning of this section, one of the
allegations of the complaint here involved alleges that
Respondent, through an unidentified agent at the three
employee meetings here under discussion, "promised its
employees economic benefits, including, but not limited to,
attendance bonuses, raises and pension benefits, if the
employees oppose the Union and/or discontinued their
support of the Union." The record shows the unidentified
agent to be Mr. Treacy, Respondent's aforementioned
attorney of record throughout the hearing herein.
From the above findings I find and conclude that there
has been a complete failure of proof that Respondent,
through Treacy or any other agent, made any express
promises of pay raises, attendance bonuses, pension
benefits as alleged, or any other kind of fringe employee
benefits, to induce the employees to vote to oust the Union
in the then forthcoming decertification election.
In the absence of any express promises of specific
employee benefits as inducement for votes to decertify the
Union, counsel for General Counsel relies on what he calls
"general promises [by Treacy and O'Hagan] . .. that the
employees will enjoy better benefits if the Union is voted
out" which, if proven, would of course be in violation of
Section 8(a)(1) of the Act. (Emphasis supplied.)
The record shows that the only general promise made by
Treacy and O'Hagan was in their combined pleas and
promise to the employees that they should "trust" the
Company to treat them "fairly," under the sure recourse
the employees had at the end of the year to vote the Union
back in, if the Company had not kept its preelection
promise to treat them fairly.
Counsel for General Counsel has not cited and I have
not found any cases which hold that a general promise by
21 The expired union contract for the years 1973 and 1974 (Joint Exh. I)
shows a wage increase for all classifications of employees in 1974 over that
in 1973. Treacy's credited testimony shows that the employees at
Respondent's Chicago plant had been receiving regular annual wage
increases under their union contracts. Treacy's further testimony shows that
an employer to treat employees fairly if they voted not to
be represented, is a violation of the Act.
Moreover, in my opinion, the Employer's promise to
treat its employees fairly, even when they are unrepresent-
ed, was more of a statement of economic reality in the
present and foreseeable general business conditions than a
promise. Economic reality, not the promise to treat the
employees fairly, makes it a virtual certainty that after
decertification the Company would continue to pay its
employees at least the pay they had under the prior labor
contract and to give them at least the equivalent of the
fringe benefits they enjoyed under their labor contract.
Similarly, economic necessity, not the promise, makes it
a virtual certainty that the rising cost of living and the
national trend for at least matching increases in wages
would compel the Company to increase wages after
decertification even in the absence of representations
Finally, not the promise, but the existing reality of the
parent company's own freely adopted and fairly uniform
system of employee benefits at nearly all of its unrepresent-
ed plants would make for the adoption of the same or
similar benefits in the Lammert Chicago plant if the
employees voted to be unrepresented.
General Counsel places a great deal of reliance on the
comparative wage and benefit charts Treacy and O'Hagan
brought to the final March 5, 1975, employee meeting, as
indicative of inferred promises that the Lammert employ-
ees would fare better both in the matter of wages and
benefits without union representation because the charts
show that the parent company's nonunion shops generally
pay higher wages for similar work and give better fringe
benefits to their employees than the parent company's
union plants.
I find that these charts, shown to the employees at their
own request, are statements of existing facts and not of
promises. The Act does not prohibit an employer from
merely making statements of existing fact to his employees
prior to a representation election; the Act prohibits only
promises of benefits to induce employees to vote to be
unrepresented. Of course, the Lammert employees could
draw inferences from the charts that, if they voted the
Union out, they would receive the fringe benefits shown on
the charts but such inferences would be actually in the face
of forthright negative statements by both Treacy and
O'Hagan that they were not promising them any benefits if
they voted the Union out. Actually in the more fundamen-
tal matter of wages, as distinguished from employee fringe
benefits, the charts were adverse to Respondent, if their
purpose was to get the Lammert employees to vote the
Union out, because they showed that the Lammert
employees under their expired union contract were being
paid higher wages than the wages paid at any of the parent
company's numerous other plants, whether they were
union or nonunion plants.
The parties have stipulated that the matters shown on the
charts are not per se violations of the Act.
"normally negotiations would be going on about this time, so that in reality,
win or lose, they {Respondent's employees] could expect something in the
way of an annual increase in the relatively near future." tEmphasis
supplied.)
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary under all the circumstances of record, I find
and conclude that Respondent's exhibition of the charts to
its employees did not constitute direct or indirect promises
of the fringe benefits shown thereon to the employees if
they voted to decertify the Union.
Counsel for General Counsel relies on Felsenthal Plastics
Inc. now known as Grede Plastics, A Division of Grede
Foundries, Inc., 219 NLRB 592 (1975), as precedent for a
finding of an 8(a)(1) violation here arising "from the entire
context of the [three] meetings that Treacy impliedly
promised to the employees that they would receive the
benefits of the other nonunion plants of the Company if
the Union were voted out." Counsel for General Counsel
describes the facts and holdings of the Board in Felsenthal
as follows:
. . . the Employer sent the employees a letter which
stated that the Employers' nonunion plants enjoyed
better benefits than the employees had under their
union contract. The letter urged the employees to
become part of the "team." The Board found (Chair-
man Murphy and Member Kennedy dissenting) that
the letter, however factual, was a clear invitation to the
employees to reject the Union and receive benefits for
doing so, and was an unlawful promise of benefit.
The Felsenthal case is wholly different in its facts than
the present case as Respondent herein has never sent a
letter as in Felsenthal to its employees stating that its "non-
union plants enjoys better benefits than the employees had
under their contract." Obviously, the charts here involved
of the parent company, showing comparisions of wages
and benefits between its nonunion and union plants, are
not letters. Moreover, the parties herein have agreed that
the charts per se are not violations of Section 8(a)( ) of the
Act. Furthermore, the charts, which are purely factual,
were brought in and exhibited to Respondent's employees
because they themselves requested them for their own
information; they were not brought in at Respondent's
own initiative.
If the charts had any tendency to imply to Respondent's
employees that they would receive the seemingly superior
fringe benefits paid to the employees in the parent
company's nonunion shops if they voted the Union out, the
record shows that Treacy at all times did everything in his
power to disabuse the employees from any thoughts that
Respondent was making any promises of benefits to
influence them to decertify the Union at the then
forthcoming decertification election. That emphatic denial
of any promises came through so clearly as to cause some
employees to walk out of two of the three company-called
employee meetings described above.
The Felsenthal case is not only different in its facts than
the present case; it is also different procedurally in that,
unlike the present complaint case, it arose out of a
representation setting. The Felsenthal case, unlike most
cases which are decided by a three-man division of the
Board, was decided by a majority of the full Board with a
strong vigorous dissent by Chairman Murphy and Member
Kennedy.
In conclusion I find a failure of proof that Respondent at
employee meetings promised economic benefits in the
absence of a union as alleged but do find that Respondent
promised appeal rights on rejected grievances in the
absence of a union, substantially as alleged.
7. Incident of alleged promise by Plant Manager
McGlone to "Red Circle" employees for preferred
treatment if they would help keep the Union out
Paragraph VIII, (h) of the complaint, as amended,
alleges that, "In or about late December 1974 ...
Respondent, through its agent and supervisor Earl
McGlone, at Respondent's facility, told an employee that
he was going to 'red circle' the names of those employees
who helped McGlone; that he would put something in their
pockets, but the Union had to be out; and that he wasn't
going to forget the employees that helped him."
The employee involved in the above-alleged incident is
Wallace Davis, a machinist who at the time of the hearing
had been an employee at Respondent's plant since 1972. In
an earlier section of this Decision, under another allegation
of the complaint, it was found that Plant Manager
McGlone, in violation of Section 8(a)(l) of the Act,
promised Davis reimbursement of the $100 he had paid in
delinquent union dues plus an additional $100 if he would
abandon his support of the Union.
In support of the allegation here under consideration as
quoted above, Davis testified that on December 23, 1974,
McGlone approached him at his work station in the plant
and told him "that any guys . . . that would help them
[management] out as far as getting the union out that he
would red circle their names, and he would put something
in their pockets because he wouldn't forget the guys that
helped them." In a pretrail affidavit dated January 20,
1975, some 8 months before the hearing herein, Davis
attributed substantially the same statement to McGlone.
Although Davis' testimony does not expressly show what
"red circling" means, I infer and find from the context of
his testimony and his pretrial affidavit that the term as
spoken by McGlone to Davis conveyed the thought that
employees would be "red circled" or marked for preferen-
tial treatment if they would refrain from supporting the
Union in the then forthcoming decertification election.
McGlone testified that he used the term "red circling" to
mean the freezing of a present employee's wages at its
current level in the event a then pending reevaluation of
the employee's work classification called for a lower wage.
I do not credit this testimony as it relates to McGlone's
conversation with Davis and on the contrary find that
McGlone used the term in the broader and unlawful sense
shown above in his "red circling" remark to Davis.
Although McGlone did not specifically deny making the
"red circling" statement attributed to him by Davis as
shown above, he denied ever saying to any of the
employees in the plant "any guy or any employees who
help me get the Union out will be red circled."
I discredit this denial by McGlone and his definition of
"red circling" as he claimed he used the term in talking to
Davis because the many previous incidents shown in prior
sections of this Decision show McGlone to be an unreliable
and uncreditable witness in his zeal to defeat the Union in
the decertification election.
916
LAMMERT INDUSTRIES
Finally, it is noted that McGlone did not deny that he
told Davis that "he would put something in their [employ-
ees'] pockets for supporting his efforts to get the Union
out, the latter phrase being in substance as alleged in the
subparagraph of the complaint here under consideration.
Conclusions
The issue being solely one of credibility, I credit Davis'
testimony that Plant Manager McGlone told Davis that he
would "red circle" or reward and also otherwise reward
employees by putting something in their pockets who
helped him get the Union out, substantially as alleged in
the complaint. I find this conduct by the Company through
its plant manager to be a violation of Section 8(aXI) by
promises of benefits to employees in order to induce them
to refrain from or cease union activities.
8. Incident of Plant Manager McGlone's order
for removal of union buttons
Paragraph VIII, (i) of the complaint, as amended, alleges
that in or around March 1975 Plant Manager McGlone
"ordered an employee to remove a union button from the
employee's cap, and told the employee that he did not want
to see the union buttons in the shop any more."
Although this allegation alleges that only a single
employee was ordered by Plant Manager McGlone to
remove a union button from his person, General Counsel
adduced evidence showing that McGlone also ordered two
other employees to remove their union insignia from their
persons.
General Counsel's principal witness on the allegation
here under consideration was employee Walter Ham whose
testimony under other issues was evaluated and credited in
prior sections of this Decision.25
Ham's credited testimony shows that on the Tuesday
following the decertification election of March 7, 1975,
which, as seen, the Union lost by a vote of one, Plant
Manager McGlone looked Ham up at his work station in
the plant and ordered him to "take off the union button"
he was wearing on his person. Ham complied and
McGlone walked away. This order by McGlone to Ham
was corroborated by the testimony of employee William
Carpenter who overheard the order.26
McGlone admits talking to Ham about taking his union
button off but sought to soften the impact of the incident
by his testimony that he merely told Ham that he would
"appreciate your taking it [union button] off and forgetting
about this" as the election was over and he was anxious to
defuse the bitterness that had arisen between the prounion
and antiunion forces in connection with the decertification
election.
I credit Ham's testimony, as corroborated by Carpenter,
that McGlone ordered Ham to remove his union button
because McGlone repeatedly in prior reported incidents
has shown himself to be an utterly unreliable witness. But
under either version of the union button incident, the order
25 See findings above under par. VIII (b) and (e) of the complaint as
amended.
25 For testimony by Carpenter on another issue, see findings above
under par. VIII (b) of the complaint. as amended.
or request to remove a union button from the person of an
employee while at work is a violation of Section 8(aX)() of
the Act. Ohio Masonic Home, 225 NLRB 509 (1976).
The credited testimony of employees Carpenter and
Robert Minor 27 also show that they, too, had been ordered
by McGlone to remove union insignia from their persons
at or about the same time that McGlone ordered Ham to
remove his union button. McGlone's denial that he also
told other employees to take their union buttons off, is not
credited.
Conclusion
In summary, I find and conclude that General Counsel
has sustained his burden of proof on the violation charged
in paragraph VIII (i) of the complaint, as amended, and
that by reason of Respondent's order to three of its
employees while at work to remove their union insignia
from their persons, Respondent is in violation of Section
8(a)(l) of the Act.
9. Incident of McGlone's interrogation of
employee re posting of union leaflet
Paragraph VIII (j) of the complaint, as amended, alleges
that, "On or about January 27, 1975, Respondent, by its
agent and supervisor Earl McGlone, at Respondent's
facility, interrogated an employee as to why the employee
had hung up union literature at Respondent's facility."
The record shows that the employee in the above
allegation to be Rodney Mason, an assembler, whose
testimony under other issues was considered in prior
sections of this Decision.28
As an assembler, Mason worked in that part of the
Chicago plant known as the assembly room.
On the morning of January 27, 1975, Mason as he was
about to report to work was handed a piece of union
literature outside the plant protesting Respondent's dis-
charge of employee Pedro Ramos as an unfair labor
practice. Mason thumb-tacked the Ramos union leaflet on
a stairway in the assembly room alongside a posted notice
of the then forthcoming decertification election, which I
infer and find had been posted at the plant by Respondent
pursuant to direction from the Regional Director. In-
formed of Mason's posting of the union leaflet by another
employee, Plant Manager McGlone removed the leaflet
but moments later confronted and received an acknowl-
edgment from Mason that he had hung up the union
leaflet. McGlone asked Mason why he had posted the
leaflet and Mason replied that since "the union passed it
out legally, there was no reason why everybody shouldn't
be able to read it," especially "since McGlone was going
around campaigning against the Union." McGlone replied,
"Don't worry. I won't hold it against you."
McGlone admits the incident as testified to by Mason
but justifies his removal of the union leaflet on two
grounds. One is that the union contract then still in force
has a provision for a union bulletin board and that Mason
27 Robert Minor has also testified in connection with other issues in the
case as shown in earlier sections of this Decision.
2' See findings above under par. VIII (dX I) and (2) of the complaint as
amended.
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hung the union leaflet at a place other than the union
board. The contract provision on the subject of a union
bulletin board reads as follows: "The Company shall
furnish a bulletin board for the exclusive use of the Union.
Matters to be posted thereon shall first be submitted to the
Plant Manager." I find that this provision in the contract
does not limit the posting of union literature solely on the
union bulletin board.
McGlone testified that his other reason for removing the
Ramos union leaflet from its place in the assembly room is
that it aroused the anger of three other employees who
were opposed to the Union and that for this reason he
asked Mason to place such union literature at other parts
of the plant in order to avoid aggravating such union-
opposed employees. The three alleged aggravated employ-
ees were not called by Respondent to corroborate
McGlone's testimony.
The record stands admitted, however, that McGlone did
interrogate Mason as to why he had hung up the Ramos
union leaflet. As shown, this interrogation took place on
January 27, 1975. Ramos had been discharged on January
17, 1975. Mason himself was laid off on January 31, 1975, 4
days after he had been interrogated by McGlone about his
posting of the Ramos union leaflet.
The discharge of Ramos and the layoff of Mason caused
a strike at Respondent's Chicago plant in mid-February
which lasted about a week and was settled only through the
intervention of Mr. Treacy, counsel for Respondent, who
was brought into the picture of Respondent's labor
problems for the first time at the time of the strike. The
complaint herein, as amended, charges Respondent with
the discriminatory discharge of Ramos and the discrimina-
tory layoff of Mason. These will be dealt with in
subsequent sections of this Decision.
In the section of this Decision next below, there is a
finding that Plant Manager McGlone in late December
1974, which was about a month prior to McGlone's
interrogation of Mason here under consideration, promised
Mason "that if the union got out Respondent would permit
employees in one [lower paid] classification to train and
become employees of a different [higher paid] classifica-
tion," as alleged in subparagraph (k) of paragraph VIII of
the complaint, as amended, in violation of Section 8(a)(l)
of the Act.
Discussion and Conclusions
The issue here is not whether Mason had the right to post
the Ramos union leaflet in the assembly room or whether
Plant Manager McGlone had the managerial right to take
the union leaflet down. The real issue is whether
McGlone's admitted interr6gation of Mason as to why he
had put up the Ramos union leaflet constituted coercive
interrogation in violation of Section 8(a)(l) of the Act.
I find and conclude that McGlone's interrogation of
Mason was coercive in nature because it was an obvious
and threatening angry reaction by McGlone to his
discovery that Mason was still sympathetic to the Union,
notwithstanding McGlone's promise of a month earlier to
Mason that he would have a better chance to train for the
better paid job of a machinist if the Union was voted out,
as indicated above and detailed in the next section of this
Decision. I also find that the interrogation was coercive
because it was designed to get Mason to talk about the
extent of his interest and involvement in the Union.
Because of the repeated instances shown aove of
McGlone's unlawful efforts by promises of various benefits
to employees if the Union was voted out in the election, I
do not credit McGlone's testimony that his motivation in
asking Mason why he hung up the union leaflet was merely
to protect other nonunion sympathizing employees from
being aggravated by such union literature.
Finally, I do not credit McGlone's "reassurance" to
Mason that he would not hold his posting of the Ramos
union leaflet against him because a finding in a later
section of this Decision shows that only 4 days after
McGlone's interrogation of Mason over the union leaflet
Mason was discriminatorily laid off.
In summary, I find and conclude that McGlone's
interrogation of Mason as to why he posted the Ramos
union leaflet in the plant's assembly room constituted
coercive interrogation into Mason's union interests and
sympathies in violation of Section 8(a)(1) of the Act.
10. Incident of McGlone's promise to employees
to permit them to get into higher pay
classifications if the Union got out
Paragraph VIII (k) of the complaint, as amended, alleges
that in late December 1974 Plant Manager McGlone
"promised an employee that if the union got out,
Respondent would permit employees in one classification
to train and become employees of a different classifica-
tion."
The employee involved in the above-alleged incident is,
as heretofore noted, the aforementioned Rodney Mason
who worked as an assembler in the assembly room of
Respondent's Chicago plant.
Mason's credited testimony shows that, on a Saturday in
late December 1974 when he was alone in the assembly
room, Plant Manager McGlone came to him and engaged
him in a conversation. Mason's further credited testimony
shows that, in the short conversation he had with the plant
manager, McGlone told him that "if the Union went out
. . .he would try to get the assemblers to start training on
the machines and [to] become machinists."
Mason's credited and uncontested testimony also shows
that at the time of his above conversation the Respondent
under existing practice did not permit assemblers to train
to become machinists whose starting wage is $1.70 higher
per hour than that of starting assemblers. (Joint Exh. 1.)
McGlone denied that he told Mason that if the Union
were defeated in the decertification election he would try to
get assemblers to work on the machines. I do not credit
McGlone's denial because as heretofore noted many times
I do not find him to be a creditable witness. Previous
findings in many incidents show that McGlone, in his zeal
to get the Union decertified, made many promises of
benefits to Respondent's employees if they would vote the
Union out.
918
LAMMERT INDUSTRIES
Conclusion
I find and conclude that McGlone by his promise to
Mason that he would try to benefit assemblers by giving
them the opportunity to train for more skilled and better
paid jobs if the Union was voted out, violated Section
8(a)(1) of the Act.
11. Incident of McGlone's threat to fire any
employees not voting to decertify the Union
Paragraph VIII (I) of the complaint, as amended, alleges
that in about mid-January 1975, Plant Manager McGlone
at Respondent's Chicago plant "threatened to get rid of the
employees who were against him in the election."
The credited testimony of machinist Willie Carpenter,
heretofore mentioned in connection with other incidents,
shows that about the middle of January 1975 McGlone
told him at the Chicago plant that "he would fire anybody
that went against them [management] in the decertification
election." I credit Carpenter's testimony because of his
obvious sincerity and discredit McGlone's denial that he
made the above-noted threat to Carpenter because of
McGlone's repeated lack of credibility as heretofore
shown.
Conclusion
I find and conclude that Respondent violated Section
8(a)(1) of the Act through the threat of its agent, Plant
Manager McGlone, to fire any employee who did not vote
to decertify the Union.
12. Incidents of alleged bribes by McGlone to
employee to discourage him from supporting the
Union
Paragraph VIII (m) of the complaint, as amended,
alleges that, once in February 1975 and at another time in
March 1975, McGlone at Respondent's Chicago facility
"gave an employee money in order to discourage the
employee from supporting the Union."
Santos Gonzales 29 is identified by the record as the
employee referred to in the above allegation; at the times
here material he was employed at Respondent's Chicago
plant as a specialist. Gonzalez, whose native tongue is
Spanish, speaks a broken but intelligible English, under
which there is no doubt of his meaning.
Gonzales is one of the group of six unit employees
heretofore referred to in an earlier section of this Decision
whose discharge the Union under a letter dated November
26, 1974, to Plant Manager McGlone, had demanded
under the terms of the collective-bargaining agreement
because of serious delinquency in the payment of union
dues.30
The monthly union dues are about $8.50. At the time of
the Union's letter to McGlone demanding Santos Gon-
29 Not to be confused with Mario Gonzalez referred to in the earlier
section of this Decision dealing with the employee meetings of February 27
and March 3 and 5. 1975.
30 See discussion above under section dealing with par. ViIl (b) of the
complaint. as amended, which alleges that Plant Manager McGlone
promised an employee reimbursement of his union dues if the employee
zales' discharge for nonpayment of dues, Gonzales was $80
delinquent in his union dues. Within days after the demand
for his discharge, Gonzales paid the $80 he owed the Union
and thus avoided termination.
Two months later in February 1975 there was a strike at
the plant over the aforementioned discharge of Pedro
Ramos and the aforementioned layoff of Willie Carpenter.
On the first day of the strike Gonzales crossed the picked
line and worked that day, but at the end of the day he told
McGlone he would not return to work the next day
because he was afraid to cross the picket line. McGlone
agreed that Gonzales should stay home if he was afraid.
The strike which lasted more than a week was ended on
February 25, 1976, due to a settlement arranged by
Respondent's aforementioned counsel, Mr. Treacy, as
heretofore noted.
Gonzales' testimony shows that the following incident
happened to him at the plant a week or so after the strike
had ended and at a time only days prior to the then
scheduled decertification election of March 7, 1975. On the
date of the incident Gonzales was wearing a jacket because
the plant's furnace was not functioning due to damage
incurred from neglect during the strike.3 1 Gonzales'
credited testimony shows that during a coffeebreak that
day and while he was standing at the coffee machine he
saw McGlone's hand put something in one of the pockets
of his jacket. McGlone said nothing to Gonzales but when
Gonzales got back to his work station he found two $20
bills in his pocket. These two $20 bills was not his own
money and were not in his pocket prior to the time
McGlone put his hand into Gonzales' pocket. I infer and
find that the money was put in Gonzales' pocket by
McGlone.
Gonzales' credited testimony shows that a duplication of
the same incident occurred on the very day of the election
of March 7, 1976, but after the voting had taken place and
the poll had closed. Gonzales' testimony shows that after
the election was over while he was at a coffeebreak at the
coffee machine McGlone in passing by him put something
in Gonzales' pocket. Once again McGlone said nothing to
Gonzales but Gonzales later found a second set of two $20
bills in his pocket. The two $20 bills was not his own
money and were not in his pocket prior to the time
McGlone put his hand into Gonzales' pocket. I infer and
find that the money was put in Gonzales' pocket by
McGlone.
McGlone's denials of having twice stuffed two $20 bills
into Gonzales' pocket is not credited, not only because of
Gonzales' superior demeanor but also because throughout
the hearing covering numerous incidents I have found
McGlone to be an untrustworthy and noncreditable
witness.
There is also additional inferential evidence that
McGlone was the person who had stuffed Gonzales'
pockets with four $20 bills. The amendment of the
complaint here under consideration was served on Respon-
abandoned his support of the Union. This prior section found a violation of
the Act.
31 Gonzales merely testified that there was "no heat at that time." but
testimony of other witnesses shows that this was due to the fact that the
furnace was not functioning for the reason stated in the above finding.
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent for the attention of Mr. McGlone on August 7, 1976.
(See G.C. Exh. I(r) for the amendment and attached
registered receipt of service of the amendment.) That
amendment, as aforenoted, alleges that sometime in
February 1975 and again sometime in early March 1975
McGlone "gave an employee money in order to discourage
the employee from supporting the Union." It should be
noted that the employee mentioned in the allegation is not
identified by name. But the evidence shows that McGlone
upon the receipt of the amendment on August 7, 1975,
knew immediately that the unidentified "employee" men-
tioned in the amendment must be Gonzales because of out
of all the 21 employees at the plant, McGlone, on the day
of the receipt of the amendment, went directly to Gonzales
to tell him (as stated by Gonzales), "Somebody put some
charge against me [i.e., McGlone] in the Labor Board
because somebody [an employee] in the Company said
they got paid for vote against the Union." McGlone
himself admits that upon the very day of the receipt of the
amendment he had a conversation with Gonzales about the
new charges against him [McGlone] concerning the
payment of money.
Thus, McGlone's act in looking up Gonzales upon the
very day of his receipt of the new amendment to the
complaint, to tell Gonzales, out of all the other 20 plant
employees, about the new charge against him (McGlone),
is a tacit admission by McGlone that he knew that
Gonzales was the employee who had reported to the Board
that he (McGlone) had stuffed Gonzales' pockets with $20
bills on and before the date of the representation election. I
further infer and find from McGlone's act in looking up
Gonzales and telling him about the new unfair labor
charge against him (McGlone) that this was a silent
admission that he (McGlone) had stuffed Gonzales'
pockets with $20 bills and a silent reproach to Gonzales for
having reported the incidents to the Board.32
Discussion and Conclusion
I find that the undisputed fact that Gonzales crossed the
picket line on the first day of the strike to work as usual at
the plant, was an indication to Plant Manager McGlone
that in all probability he had in Gonzales an employee who
was not sympathetic to the Union and who might be
influenced to vote the Union out at the then forthcoming
decertification election. I infer and find that in an effort to
assure and influence Gonzales to use his vote to decertify
the Union, McGlone stuffed Gonzales' pockets with $20
bills to bribe Gonzales to vote the Union out. I find and
conclude that this effort by Respondent through its agent
McGlone to bribe an employee to discourage him from
supporting the Union constitutes a gross and flagrant
violation of Section 8(a)(1) of the Act.
32 On Resplxndent's motion at the hearing, a ruling was made striking
Gonzales' testimony about the above-described conversation McGlone had
C. Two Pleaded Unlawful Terminations and a
Nonpleaded Threat of Discharge for Union Activity
and Respondent's Special Defense for not Making
the Alleged Discriminatees Whole After
Reinstatement
1. Background
Paragraph XI of the complaint, as amended, alleges that
Respondent by its aforementioned agent McGlone dis-
charged an employee named Pedro Ramos on January 17,
1975, because of his union and/or protected, concerted
activity and further alleges that although Respondent
reinstated Ramos on February 17, 1975, it did not make
Ramos whole for his lost earnings in the interim period in
which Ramos was not employed by Respondent.
Similarly paragraph X of the complaint, as amended,
alleges that another employee, the aforementioned Rodney
Mason, was discharged or laid off on January 31, 1975, by
McGlone because of his union and/or protected, concerted
activity and further alleges that although Respondent
reinstated Mason on March 10, 1975, it did not make him
whole for his lost earnings in the interim period in which
Mason was not employed by Respondent.
The record shows that the discharge of Ramos and the
layoff or discharge of Mason and of one other employee
not here involved caused an unfair labor strike of about 10
days' duration in February 1975 in which some violence
occurred. The strike was settled through the intervention of
Mr. Treacy, Respondent's aforementioned attorney, with
the result that Respondent's employees returned to work
on February 25, 1975. The settlement agreement is
reflected in a handwritten page dated February 24, 1975,
and signed by a representative of the Charging Union and
by the aforementioned Mr. O'Hagan, vice president in
charge of personnel for Respondent. The agreement called
for the reinstatement of both Ramos and Mason "with all
rights and privileges effective February 25, 1975, at 8 a.m."
The agreement also provides that Ramos and Mason
"waive any and all claims for back-pay for the periods of
time recently when they were suspended." (Resp. Exh. 14.)
Although the Regional Director approved the withdrawal
of certain charges not involved in this proceeding, it is
undisputed that he never approved the settlement agree-
ment.
The complaint herein seeks backpay for the two alleged
discriminatees for loss of earnings by reason of their
suspensions from their jobs.
2. Findings as to Ramos
Ramos was discharged on January 17, 1975, by Plant
Manager McGlone for the alleged reason of theft that day
of four rolls of company toilet paper, but the complaint
charges that he was discharged because of his union and
protected activities. At the time of his discharge, Ramos
had worked for the Respondent for about 3 years and was
a shipping department employee. Ramos is native of
Puerto Rico; he speaks English but is more comfortable
and articulate in his native Spanish.
with Gonzales on August 7. 1975, as irrelevant. Upon reconsideration that
ruling is hereby rescinded.
920
LAMMERT INDUSTRIES
Ramos for personal reasons did not work on the day of
his discharge which was payday but came to the plant in
the late morning to ask McGlone for his paycheck which
McGlone gave him. Ramos put some dirty work clothes in
a shopping bag to take home and put the bag near the
timeclock where he intended to pick it up after he had
cashed his check at an exchange near the plant.
Before leaving to cash his check Ramos greeted his
fellow employees and showed some of them a typewritten
letter in Spanish. The charge that Ramos was terminated
because his union activity springs from the content of that
one-page letter.
The letter is dated January 17, 1975, the same day that
Ramos was discharged, and is on the letterhead of a
Spanish community paper with offices in the Merchandise
Mart in Chicago. The letterhead in large decorative print
shows the name of the newspaper to be, "Gallo, the
Fighting Cock, A Community Minded Spanish Newspa-
per." The letterhead also shows that the general manager
or editor of the newspaper to be Alfredo Torres De Jesus
and the letter is signed by Torres.
The letter is personally addressed to Ramos as well as to
Santos Gonzales, M. Gonzales, and B. Gonzalez, all of
whom were employed by Respondent at its Chicago plant.
Although the record does not contain an English transla-
tion of the Spanish letter (G. C. Exh. 3), I find that the
substance of the letter is correctly described in General
Counsel's brief as follows:
The letter states that Torres was not writing the letter
as any union employee or company bureaucrat; that he
was a newspaperman and had been fighting for the
legal recognition of workers to be represented with the
human and legal guarantees which have been estab-
lished by state and federal laws ever since the difficult
times of tobacco workers in Utado, Puerto Rico and in
Chicago since 1956. The letter stated that organizing
workers with this objective in mind had cost lives and
sacrifices, and that in Puerto Rico they had struggled to
achieve the best for the worker, and that in the United
States they are fighting one of the hardest battles in
history to establish a union for the farm workers in an
industry that is not fortunate to be unionized.
The letter continued saying that the employees in
Lammert had one of the best unions in the world - the
machinists, and that the writer understood that there
are problems of communication and information, and
they exist everywhere, but these are minor details to be
corrected with the help of a good union steward who
they have the right to elect, but the important thing was
to be backed up by the guarantees of the collective
bargaining agreement which the Company must abide
by. Without the contract, the promises of the Company
are meaningless, and the employee could not even
count on a secure job.
The letter states that unions, governments, and
churches all depend on contributions of their members
in order to exist, and that it would be impossible for a
:3 The representation election was originally set for January 24. 1976. but
postponed to March 7. 1976.
:"I See Resp. Exhs. 3 and 15.
:', I do not credit any testimony by McGlone that he did not know the
man or an unrecognized group to pay the amount it
would cost to obtain the representation costs. A lawyer
would charge thousands of dollars to negotiate a
contract that really wouldn't represent the workers'
interests, but that on the other hand each employee
paying a small monthly amount results in everybody
obtaining all that service from a union without further
worry. The letter continued, asking if they could
imagine what would happen to a government if the
people didn't pay their taxes; then the government
wouldn't be able to give any services. The letter
concluded with the statement that the election at
Lammert would be on January 24,33 that the person
should think what he is doing and that the union was
the only protection the law can give the worker.
While Ramos was showing the letter to the employees,
Benny Gonzalez, who is named in the letter as B. Gonzalez
and whose given name in Spanish is Benito,3 4 asked to see
it. He then took the letter to the duplicating machine where
he caused copies of the letter to be duplicated. Gonzalez
gave a copy of the letter to McGlone and translated or
interpreted the Spanish into English for McGlone.3 5
Gonzalez also distributed copies of the letter to other
Spanish-speaking employees.
McGlone took the copy of the letter Benny Gonzalez
had given him to shop steward Minor. Minor's credited
testimony shows that McGlone told him that Ramos could
be fired for passing out such union literature in the plant
although in fact Gonzalez as McGlone knew was the
employee who had duplicated and passed out copies of the
letter which Ramos had brought to the plant and had
shown to some of his fellow Spanish-speaking employees.
In the meanwhile Ramos left the plant to cash his
paycheck, leaving as aforementioned his shopping bag at
the timeclock. He was out about 20 minutes. In the interval
McGlone engaged Minor and the aforementioned union
shop chairman Brown in a conversation in his office on the
rights of the Union to post notices in the plant under the
collective-bargaining agreement at places other than the
Union's bulletin board furnished by the Company. While
they were talking, Charles Skrable, a working foreman,
came into the office and whispered something into
McGlone's ear. McGlone then asked Brown to go with
him, and he told Minor to return to work.
In the meantime Ramos had returned to the plant and
was walking out of the door with his shopping bag when
McGlone stopped him, emptied his shopping bag, and
discovered four rolls of company toilet paper. McGlone
accused Ramos of stealing the tissue, which was the same
brand as used in the restroom of the plant. There is a
conflict of testimony as to Ramos' response to the
accusation. Brown and Minor who had been summoned by
McGlone to the scene testified that Ramos made no
response to the accusation; McGlone testified that Ramos
admitted that he had taken the four rolls of toilet paper;
Ramos testified that in replying to the accusation he denied
to McGlone that he had taken the rolls of toilet paper.
content of the prounion letter until after Ramos' discharge because I have
found his testimony in incident after incident charged by the complaint to
be unreliable.
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the testimony of Brown and Minor which I fully
credit, I find that Ramos stood mute when McGlone
accused him of stealing the toilet paper. I do not credit
McGlone's testimony that Ramos admitted the theft of the
tissue as McGlone has consistently shown himself not to be
a creditable witness. I also discredit Ramos' testimony that
he denied the theft to McGlone as I am convinced from the
testimony of Brown and Minor that Ramos remained
silent 36 when McGlone accused him of the theft. At any
rate, McGlone then and there discharged Ramos for the
alleged reason of his theft of the company toilet paper.
Discussion and Conclusions on Discharge of
Ramos
I do not find it necessary to decide whether Ramos
actually stole the four rolls of toilet paper because, even if
it is assumed that he did steal the tissue, the question
remains whether Ramos was in fact discharged for the theft
or whether the theft was used as pretext for terminating
him because of his union activity and his protected activity
in showing the above-described letter to his fellow workers.
From the record as a whole, I find and conclude that
Respondent through Plant Manager McGlone seized on
the alleged theft as a pretext for terminating Ramos for his
union and concerted union activities in violation of Section
8(a)(3) and (1) of the Act.
Numerous previous findings show McGlone's bitter
antiunion campaign and his numerous unfair labor
practices in behalf of Respondent in efforts to get the
Union voted out in the then scheduled decertification
election. The record further shows that the equally strong
and cogent prounion letter Ramos brought to the plant
greatly aroused McGlone's ire and anger because the letter
from the Spanish newspaperman set forth very powerful
and persuasive reasons why the employees in Respondent's
Chicago plant should vote to keep the Union in as their
exclusive bargaining agent. The letter so enraged McGlone
that he told Minor, the union shop steward, that Ramos
could be fired for passing out copies of the Spanish
newspaperman's prounion letter to fellow employees,
although McGlone knew that it was Gonzalez, and not
Ramos, who had duplicated the letter and distributed
copies thereof to other Spanish-speaking employees in the
plant, as well as to McGlone himself. Within minutes after
having made this threat to the union shop steward, I find
and conclude that McGlone carried out the threat by firing
Ramos for his union and protected union activities under
the handy guise and seemingly plausible pretext of the then
almost simultaneous discovery of an alleged theft by
Ramos of four rolls of company toilet paper as found in
Ramos' shopping bag.
Finally, even if it is assumed that Ramos' did steal the
four rolls of toilet paper, I find that the severity of the
penalty for this offense-termination of an employee with
some 3 years of continuous service with the Company-is a
further indication that Ramos' discharge for theft was a
coverup for his termination for bringing prounion literature
into the plant. As pointed out by counsel for General
:16 Ramos' silence does not necessarily call for an inference that he stole
the tissue; the toilet rolls could have been planted in his shopping bag and
this, if true, could also explain his dumbfoundedness.
Counsel, there is no evidence that McGlone ordered
Ramos to return the toilet paper and warn him about such
future occurrences; there is no evidence that McGlone
even gave any consideration to suspending Ramos for a
period of time as a penalty for the offense; there is no
evidence that Respondent routinely metes out such harsh
penalties to its half-literate Spanish-speaking employees.
Moreover, Ramos' discharge for the petty theft, if it was a
theft, of four rolls of company toilet paper, is contrary to
Respondent's own understanding of the importance of
treating its employees fairly as stated by Mr. Treacy,
Respondent's counsel, and heretofore noted, to wit: "We
need these people [employees]. We have an investment in
them. They know our business and our work .... " All of
these factors constitute further proof that McGlone's real
motive for discharging Ramos was for his union activity
and not for his seeming theft of four rolls of toilet paper.
Discussion and Conclusions re General Counsel's
Request for a Separate Finding of an Unpleaded
8(a)(1) Violation Based on McGlone's Threat of a
Possible Termination of Ramos for Bringing the
Prounion Letter Into the Plant
As shown above McGlone made a threat to Minor, the
union shop steward, that he (McGlone) could discharge
Ramos for bringing and showing the prounion letter (he
had received from a Spanish newspaperman) to his
Spanish-speaking coworkers. As noted above, McGlone
did in fact terminate Ramos shortly after he made the
threat to discharge him.
However, the complaint, as amended, does not allege this
threat by McGlone to be a separate or independent
violation of Section 8(a)() of the Act. At the hearing the
threat was brought out merely as a background fact to
show that McGlone shortly thereafter did in fact carry out
his threat by firing Ramos for his protected right to show
the prounion letter to his coworkers. Accordingly, I found
above that Ramos was discharged in violation of Section
8(a)(l) of the Act, as well as under Section 8(a)(3) of the
Act.
However, counsel for General Counsel, on the ground
that the issue of the threat "was fully litigated at the
hearing" in connection with Ramos' 8(aX)(I) termination,
now seeks a separate finding that the threat in itself
constitutes an independent 8(a)(1) violation, notwithstand-
ing the fact that the threat is not pleaded in the complaint,
as amended.
I find that, although the record does show that McGlone
did make the threat (to the shop steward), Ramos could be
terminated for circulating the prounion letter to his
coworkers, I find that counsel for General Counsel did not
put Respondent on notice at the hearing that he was raising
this new issue and that Respondent was not consciously
aware that this new issue was being raised. For these
reasons I deny General Counsel's request for a finding of
an independent 8(aX)(I) violation by reason of McGlone's
described threat to terminate Ramos. I note, however, that,
because of the very extensive unfair labor practices found
922
LAMMERT INDUSTRIES
herein by Respondent, the cease-and-desist order I will
issue in this case will be sufficiently broad to encompass
the described threat.
3. Findings as to employee Mason
The issue as to Mason is whether he was temporarily laid
off because of an economic slump in Respondent's
business or whether the real reason for his layoff was his
uncompromising union sympathies and activities.
Mason was hired as an assembler on September 19, 1971,
and laid off on January 31, 1975, a Friday, about I a.m. In
September 1974, the month of Mason's hiring, Respon-
dent's Chicago plant had orders in the amount of $137,906,
but in November 1974 the volume of sales plummeted to
$59,203. In December 1974 and January 1975 orders had
risen to $82,393 and $82,051, respectively. In February
1975 the orders dropped somewhat to $78,189, but in
March 1975 the orders went up to $87,879. It is noted
Respondent did not lay off Mason in November 1975 when
the orders dropped dramatically to $59,203 from $137,906
in September 1974. Similarly, Respondent did not lay off
Mason in December 1974 when sales had risen to $82,393,
but did lay him off on January 31, 1975, when sales were
nearly the equivalent of December 1974. Respondent's
sales are subject to wild variations: thus in July 1974 the
Company had orders in the amount of $226,759.
At the time of his layoff, Mason had the lowest seniority
of any employee in the plant, but he was also the only
layoff in the plant. The collective-bargaining agreement
provides for layoffs in each of the several classifications of
work3 7 at the plant based on seniority in each classifica-
tion. Respondent offered no testimony to show why it
chose to reach into the assembler work classification as
against all other work classifications in the plant to make a
layoff, thus causing the layoff of Mason in Respondent's
assembly department because he had the lowest seniority
in that department.
In the weeks ending January 4, 11, 18, and 25, 1975,
many employees in the various departments of the plant
worked overtime but in the week ending January 31, 1975,
when Mason was laid off, no employees put in any
overtime. In the weeks ending January 4 and 11, 1975,
Mason put in 11 and 12-1/2 hours of overtime, respective-
ly. Saunders, who like Mason was also employed as an
assembler, worked overtime in the weeks ending January 4,
11, 18, and 25, 1976. No overtime was worked by any
employees in February 1975 which I infer and find was in
large part due to the strike in that month. In March 1975
the employees again began to put in much overtime.
As heretofore noted, McGlone laid Mason off on
January 11, 1975. Some 10 or 15 days prior to Mason's
layoff, McGlone learned that Mason had been selected to
be the Union's observer at the decertification election, then
scheduled to be held late in January.
A prior section of this Decision shows that on January
27, 4 days before Mason's layoff, McGlone got into a
dispute with Mason over Mason's hanging a union leaflet,
a7 These include working foremen, machinists. specialists, assemblers.
helpers, and janitors.
:1s 1 infer and find from this testimony by McGlone that he talked to
LeBlanc by telephone as there is no evidence that LeBlanc is stationed at
protesting employee Ramos' discharge, alongside the
Board's notice of the then forthcoming decertification
election, during the course of which McGlone engaged
Mason in coercive interrogation about his union activities,
which was found above to be in violation of Section 8(a)(1)
of the Act. At the time of the described incident, McGlone
told Mason he would not hold it against him.
Mason's layoff by McGlone occurred 4 days after
Mason's posting at the plant of the Union's protest against
the Company's discharge of Ramos. Of the six or seven
other assemblers at the plant, Mason was the only
assembler who was laid off. At the time of Mason's layoff
on January 31, 1975, Mason's credited testimony shows
that McGlone told him he would be laid off for 2 weeks.
About 10 days after Mason's layoff, the employees at the
plant, as aforenoted, went on strike for a period of about 10
days in the month of February 1975, in protest of Ramos'
discharge and Mason's layoff. As aforementioned the
strike was settled and Mason was reinstated to his job on
February 25, 1975, as a result of a strike settlement
agreement brought about through the intervention of Mr.
Treacy, Respondent's attorney, as aforeshown. After
Mason's layoff, no one was hired to do hisjob.
McGlone testified that Respondent's business at its
Chicago plant is not subject to long term planning with
respect to layoffs because the plant's volume of work is
subject to change "from day to day," depending upon the
orders the Company received from day to day and that
accordingly the layoffs at the plant are "day by day." In
McGlone's own words Respondent's Chicago facility is "a
small plant and we live from day to day really. If we get
one large order on pumps worth $5,000, then we hang on
for another day. That's the way business has been."
However, Respondent presented no evidence that it made
any layoffs at all between September 1974 and the end of
January 1975 except for the layoff of Mason on January
31, 1975, despite the wide upward and downward swings of
orders between such months of September and January.
McGlone testified that it was his custom to talk to his
superior, Joseph LeBlanc,38 the first week in every month
about orders and sales and that it was his standing
instruction "to watch personnel and any cuts in tooling or
anything I can do I better start doing." McGlone laid
Mason off not after he made his usual report to LeBlanc in
the first week of the month but just prior thereto.
Discussion and Conclusions
I find Respondent's defense that Mason was laid off
because of a slackening of orders at its Chicago plant is
unconvincing. The record shows that the Company
consistently retains about 21 employees at its Chicago
plant month after month regardless of the monthly
variations in the dollar volume of orders it receives. Thus,
although the Company's orders of $137,906 in September
1974 slumped to $111,783 in October 1974, Respondent
made no layoffs in October. Again, although the Compa-
ny's aforenoted orders of $111,783 in October 1974
Respondent's Chicago plant and the record supports the inference that
LeBlanc is the manager in charge of production of a number of plants of the
parent company.
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plummeted to $59,203 in November 1974, the Company
still made no layoffs. Similarly, there were no layoffs in
December 1974 for apparently the obvious reason that the
amount of orders had risen $82,393 in December from the
low point of $59,203 in the preceding month of November.
But at the end of January 1975, McGlone laid off Mason,
notwithstanding the fact that the orders received in
January were substantially the same ($82,051) as they had
been in the preceding month of December ($82,393) and
despite the fact that the Company was already short one
employee by reason of its above-noted discriminatory
discharge of Ramos on January 17, 1975.
The months of February and March 1975 after Mason's
layoff likewise fail to show any economic justification for
Mason's layoff. In February the amount of orders dropped
only about $4,000 over the previous month, due to the
closedown of the plant in February because of the strike,
but in March the orders increased materially to $87,879.
Thus, Respondent's layoff of Mason in January was
inconsistent with the Company's obvious policy of keeping
its work force intact even when there are in some months
drastic reductions in the amount of orders received.
It is also apparent that the amount of orders Respondent
receives in any I month is not in itself indicative of the
amount of work to be performed in Respondent's plant. In
some months the orders may be so overwhelming (such as
$226,759 in July 1974) that it may take many subsequent
months to catch up with the work.
Another factor pointing to the lack of economic
justification for Mason's layoff is that in the very month of
Mason's layoff there were many employees, including
assemblers Mason and Saunders, who were called on to
work overtime.
Respondent's asserted economic justification for Ma-
son's layoff is also brought into further doubt because
Respondent made no showing as to why of all departmen-
tal work at the plant the assembly department where
Mason worked was chosen for a layoff-that is, Mason.
Finally, I reject McGlone's asserted economic justifica-
tion for Mason's layoff because McGlone has consistently
shown himself to be an unreliable and noncreditable
witness.
For all of the above reasons, I find and conclude that
McGlone used lack of work as a pretext for laying off
Mason and that the true reason for Mason's layoff was his
union activity in hanging up at the plant a union protest
against Ramos' discharge, alongside the Board's notice of
the then scheduled decertification election. I also infer and
find that Mason's union activity in accepting an appoint-
ment to be a union observer at the election also played a
part in his layoff at the plant.
I find and conclude that Respondent discriminatorily
laid off Mason in violation of Section 8(a)(3) of the Act.
Discussion and Conclusions re Respondent's
Defense Against Backpay for Ramos and Mason
In its brief Respondent takes the position that Ramos
and Mason, if found discriminatorily suspended from their
jobs, should nevertheless not be allowed backpay because
in the written agreement executed by the Union and
Respondent on February 24, 1975, settling the strike at
Respondent's plant, it was agreed that, "R. Mason and P.
Ramos waive any and all claims for backpay for the period
of time recently when they were suspended." Respondent
"submits this agreement deserves to be honored," but
admits that it "does not contend that the Board participat-
ed in or approved this agreement" and states that,
"Accordingly, Respondent does not contend that this
agreement is binding on the Board."
By its admission that the non-Board settlement here
under discussion is not binding upon the Board, Respon-
dent is taking cognizance of a long-established policy that
the Board retains jurisdiction in such situations for the
effectuation of public, rather than private, rights. This
policy has again been recently affirmed in Jerstedt Lumber
Company, Inc., 209 NLRB 662, fn. 2 (1974). In that case the
equities for not issuing an order for backpay were far
stronger than here because in Jerstedt the company had
actually made restitution for lost earnings before the
issuance of the Administrative Law Judge's decision in the
case and accordingly moved to vacate the Administrative
Law Judge's decision. The Board nevertheless denied the
company's motion to vacate the Administrative Law
Judge's decision for two reasons, one of which is, that "it is
not the Board's practice to waive its jurisdiction and
thereby deprive the public of the right of enforcement." As
precedent for this action, the Board cited its 1960 decision
in Aacon Contracting Company, Inc., 127 NLRB 1250, 1269,
wherein it is stated that, "It has been a long-settled law that
a respondent cannot deprive the Board of jurisdiction or
the public of the right to enforcement of the public rights
involved by the stratagem of 'any . .. private settle-
ment.' "
Respondent's request, deemed a motion, for the deletion
of the traditional "make whole" order in the recommended
Order to be entered herein for the restitution of lost
earnings for Ramos and Mason, is denied.
D. Issue as to Whether Attorney Treacy's Pretrial
Interrogations of Employees re Facts on Charged Violations
in Preparations for TrialAre Unlawful
Paragraph VIII (n) of the complaint, as amended, alleges
that "On or about August 6, 1975, Respondent, through its
agent at its facility located in Chicago, Illinois, interrogated
employees concerning the testimony the employees had
given and/or were to give before the Board." The record
shows that the unnamed agent in the allegation is the
aforementioned counsel for Respondent, William Treacy.
The hearing of this proceeding under the principal
complaint, as amended herein, in Case 13-CA-14147
opened on August 13, 1975, at Chicago. Seven days prior to
the opening of the hearing, Respondent's counsel, Treacy,
on August 6, as part of his preparation of Respondent's
defenses against the charges alleged in the complaint, went
to the Company's Chicago plant, accompanied by a court
reporter, to take such statements of fact from the plant's
employees, as they would voluntarily give him on the
unlawful conduct charged against the Company.
The employees interrogated by Treacy were the ones the
Company believed would testify against it in the hearing.
The interrogations were conducted in the office of Plant
Manager McGlone because it was the quietest place in the
924
LAMMERT INDUSTRIES
plant, but McGlone did not participate in the interroga-
tions and was not present when they took place. The
witnesses were summoned one by one by the Assistant
Plant Manager Gus Zikas who simply told the called
employee that Mr. Treacy wanted to talk to him. The only
persons present at the interrogations were Treacy; Edward
Jones, the court reporter; Carl Brown, the aforementioned
union shop chairman, who remained at each interrogation
at the request of Treacy; and the employee who was being
interrogated. The questions by Treacy and the answers by
the employees were stenographically recorded by the court
reporter and transcripts thereof are in evidence as exhibits.
At each of the interrogations, Treacy interrogated the
employees chiefly on what he (Treacy) had told the
employees at the company-called employee meetings of
February 27 and March 3 and 5, 1975, in view of the
allegation of the complaint that he3 9 had made unlawful
promises at such meetings of economic benefits if the
employees would give up their support of the Union. (In an
earlier section of this Decision, it was found that Treacy
had not made any unlawful promises to the employees at
the three employee meetings as alleged in the complaint, as
amended.)
The record shows that all of Treacy's interrogations
related strictly and exclusively to inquiries of fact with
respect to the unlawful acts charged to the Respondent by
the complaint, as amended. Treacy made no inquiries
unrelated to the allegations of the complaint.
A review of the transcripts of the interviews shows that
Treacy interrogated the employees with uniform tact and
courtesy and without any coercion. Where an employee
had an uncertain recollection of the event inquired into,
Treacy would sometimes try to refresh the employee's
memory with what Treacy believed to be the facts, but he
never sought to bully or otherwise coerce the employee into
a favorable answer.
At the beginning of each interview, Treacy told the
employee that the purpose of the interview was to help the
Company to prepare its defense to the present lawsuit.
Likewise, at the beginning of each interview, Treacy
routinely told the employee that he was under no
obligation to talk to him (Treacy) and that if the employee
preferred not to be questioned that his refusal to be
interviewed would not be held against him or that his
refusal would not cause any hard feelings against him and
that the employee was free to leave the room before any
questioning began or during the course of the interrogation
if the employee so desired. In all Treacy spoke individually
to seven employees that day and each interview was
conducted in the presence of Carl Brown, the Union's shop
chairman, who was himself interviewed by Treacy with
Brown's consent.
Three of the seven summoned employees told Treacy
they preferred not to be interviewed. These three employ-
ees were Robert Minor, William Carpenter, and Walter
Ham, heretofore mentioned in other connections. When
Minor, the shop steward, said he preferred not to talk,
Treacy told him, "Fine. Then we have an understanding,
you and 1, and there are no hard feelings." Treacy's remark
39 The involved allegation is par. VIII (e) of the complaint, as amended.
That allegation does not mention Treacy by name as the company "agent"
"no hard feelings" was a reiteration of what Treacy had
told Minor in his opening statement if Minor chose not to
be interviewed. (G. C. Exh. 16.) In Treacy's opening
statement to Carpenter, he told him, "You sure don't have
to talk to us at all if you don't want to. If you don't talk to
us, nothing is going to be held against you. This is your free
choice." When Carpenter told Treacy that he preferred not
to talk, Treacy said to him, "You have a free choice to stay
or go." (G. C. Exh. 17.) Similarly, in his opening statement
to Ham, Treacy told Ham, "You don't have to talk to me.
If you don't, there are no hard feelings, believe me, whether
you do or don't .... " When Ham said he preferred not to
talk, Treacy replied, "It's a free country, man. Nice to see
you anyway. Take care. We'll be around. I hope you will
too." (G. C. Exh. 19.)
The remaining four employees who called and consented
to be interviewed by Treacy were Carl Brown, the union
shop chairman, John Harper, Benito Gonzalez, and Unzo
Givens. The transcripts of their interviews by Treacy show
that they agreed without any coercion to tell Treacy what
they recalled about the incidents alleged in the complaint
under which the Company is charged with unlawful
conduct. But before Treacy began interrogating them, he
told each employee that he did not have to talk to him if he
did not want to and that his refusal to be interviewed
would not be held against him. More specifically, Treacy
told Union Shop Chairman Carl Brown, "Carl, you don't
have to talk to me if you don't want to. That's your
privilege. If you would rather not, we will still, I hope, be
friends. Certainly we won't hold anything against you." (G.
C. Exh. 15.) Treacy told Harper "you don't have to talk to
me if you don't want to. That's your free choice. There will
be no hard feelings no matter what you decide...." (G.
C. Exh. 18.) Treacy told Gonzalez, "You don't have to
talk. .... There will be no hard feelings either way. I want
to ask you what your memory is." (G. C. Exh. 20.) Finally
moving on to Givens, Treacy told him, "You don't have to
talk to me if you don't want to. If you don't there is no
hard feeling. I will tell you this much, I won't ask you any
question that is unfair, and if I do you just say you won't
answer it. That's all. Or if you feel like leaving, you get up
and walk out, there is no hard feelings...." Givens chose
to answer some of the questions Treacy put to him but
declined to answer other questions. (Resp. Exh. 16.)
From the record as a whole, I find and conclude that
Treacy in one way or another in effect assured each
employee he called in for questioning that the Company
would not harm him in any way if he refused to subject
himself to his (Treacy's) questioning him about what he
recalled the facts to be about the events set forth in the
complaint under which Respondent is charged with unfair
labor practices. This is evident from Treacy's various
expressions of assurances of no harm to the employees that
if they refused to be interrogated, such as the expressions,
(1) there would be "no hard feelings," (2) "nothing is going
to be held against you," (3) "there will be no hard feelings
no matter what you decide," and (4) "there are no hard
feelings either way."
who made the promises of economic benefits, but the record identifies the
unnamed agent to be Treacy.
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following excerpt40 from the transcript of Treacy's
interrogation of employee John Harper on August 6, 1975,
is illustrative and representative of the care Treacy took to
tell each of the interviewed employees on the same date (1)
that the purpose of the proposed interview was to help
Respondent to prepare its defense against the unfair labor
practices charged to the Company in the complaint and (2)
that the Company would not visit any harm on employees
who declined to be interrogated or who refused to answer
some questions but not other questions:
To John Harper: My name is William Treacy, and I
am the Lawyer for the Company. As you may know,
the Union has filed a lot of charges against the
Company, and it is my job to try to defend the
Company. You have no objection to my defending the
Company. That's myjob.
A. Yes.
Q. I would like to talk with you and ask you about
some of these things, primarily what was said in those
meetings which you attended, but I want to tell you,
you don't have to talk to me if you don't want to. That's
your free choice. There will be no hard feelings no
matter what you decide. .... If you are willing to talk,
I guarantee I won't ask you any questions that are
going to be personal. Secondly, if at any time during
the discussion you think, "Well, he is not keeping his
word," and you want to walk out, you are free to do so,
and again no hard feelings. It is perfectly legal for us to
talk. As you know, any lawyer in getting ready for a
case talked with every witness he can put his hands on.
That's the way you do your job. Would you be willing
to hear what I have to say before you make up your
mind?
A. Yes, I will let you talk. [G. C. Exh. 18]
The transcripts of the interviews of August 6, 1975,
further show that Treacy in his interrogations of Respon-
dent's employees did not try to coerce the employees to
answer any questions they preferred not to answer. The
transcript of Treacy's interrogation of employee Unzo
Givens is illustrative of this. As aforenoted Givens was one
of the four employees who agreed to being interrogated on
the events alleged in the complaint, but he refused to
answer some of Treacy's questions. In opening the
interview, Treacy said to Givens, "I will promise you this
much, I won't ask any questions that is unfair, and if I do
you just say you won't answer it. That's all .... " During
the course of the questioning, the following took place:
Q. (By Treacy) So far have I asked you any
question that you object to?
A. No.
* * *
Q. Now, they [the complaint] claim that at this
meeting Earl [Plant Manager McGlone] said if the guys
vote against the Union, "I promise you will have better
insurance benefits. Did he say that?"
A. . . . But now it's getting into a further explana-
tion, and since it started getting into a further
explanation, I would prefer to answer any question like
that on the stand before the Justice.
Q. (By Treacy) Fair enough. At this meeting did
Earl [McGlone] promise to give the men an increase in
sick days.
A. Here again-
Q. Same answer?
A. Same answer.
Q. No problem. I am keeping my word to you,
aren't I?
A. All right.
None of the employees who were called in for interviews
by Treacy on the aforementioned date of August 6, just 7
days before the beginning of the hearing of this proceeding,
were asked to answer questions under oath and none were
asked to sign their names to the transcripts of their
interviews.
It is again noted that all of Treacy's interviews took
place, at Treacy's urgent request, in the presence of the
Union's in-shop representative, Carl Brown, the Union's
shop chairman. The only agent of Respondent at the
interviews was Treacy, the Company's labor law counsel.
The record herein fails to show any reprisals or even
claims thereof by Respondent against the employees who
refused to be interrogated by Treacy or in the case of the
employees who agreed to being interrogated, for refusing to
answer some questions while answering other questions,
although some months had elapsed between the first
hearing on this consolidated proceeding in August and
September 1975 and the second hearing herein in February
1976.
Discussion and Conclusions
Both General Counsel and Respondent are agreed that
under well-established law an employer has the legal right
to investigate facts without incurring 8(a)(1) liability by
interrogations of the employer's employees concerning
unfair labor practice issues raised by the pleading where
such interrogation is necessary for the preparation of the
employer's defense for the hearing of the case, provided,
however, certain safeguards are met to protect the
employees from inherent dangers of coercion in such
interrogations. These safeguards, designed to minimize the
coercive impact of employer interrogation, are specifically
set forth in Johnnie's Poultry Co. and John Bishop Poultry
Co., Successor, 146 NLRB 770, 775 (1964), as follows:
Thus, [1] the employer must communicate to the
employee the purpose of the questioning, [2] assure him
that no reprisal will take place, and [3] obtain his
participation on a voluntary basis; [4] the questioning
must occur in a context free from employer hostility to
union organization and [5] must not be itself coercive
in nature; [6] and the questions must not exceed the
necessities of the legitimate purpose by prying into
other union matters, eliciting information concerning
4" This excerpt is chosen because of its comparative brevity.
926
LAMMERT INDUSTRIES
an employee's subjective state of mind, or otherwise
interfering with the statutory rights of employees.
[Footnote omitted.]
As stated in Johnnie's Poultry, "When an employer
transgresses the boundries of these safeguards, he loses the
benefits of the privilege."
I find and there appears to be no dispute on this, that
Respondent has met the safeguards or requirements set
forth under the bracketed numbers 1, 3, and 6 of the above
quotation from Johnnie's Poultry and has accordingly, at
least with respect to these three safeguards, met the
conditions for allowable interrogation of its employees
without 8(a)(1) liability.
However, General Counsel contends that Respondent
lost its 8(a)(1) immunity because of Respondent's alleged
failure to meet the safeguards shown as number 2, 4, and 5
of the above-quoted paragraph from the Board's decision
in Johnnie's Poultry. Of these General Counsel lays his
greatest stress on safeguards 2 and 4, but gives precedence
in his brief to safeguard 4.
Safeguard 4 requires that "the questioning must occur in
a context free from employer hostility to union organiza-
tion." Counsel for General Counsel contends that Attorney
Treacy's questioning of Respondent's employees did not
occur in a context free from union hostility because, in
connection with its efforts to win the decertification
election, "Respondent's vigorous unlawful conduct includ-
ed threats of reprisals, promises of benefits, discriminatory
discharges and other unlawful acts." He also contends that
the place of the interrogation itself, McGlone's office, was
not in a context free from employer hostility because
McGlone "had earlier committed numerous violations of
the Act." He further contends that the mere fact that the
questioning was conducted by Treacy negatived a context
free of employer hostility because Treacy in the minds of
the questioned employees was associated with Treacy's
alleged unlawful promises of benefits at the employee
meetings of February 27 and March 3 and 5, 1975, in order
to induce the employees to abandon the Union.
The difficulty with General Counsel's contention that
Treacy's examination was conducted in an atmosphere of
pervasive employer hostility to union organization is that
all employer acts of union hostility had stopped, as
conceded by General Counsel, at least 5 months prior to
the time Treacy was conducting his prehearing interroga-
tion of Respondent's witnesses on August 6, 1975, which
preceded the opening of the hearing by only 7 days.
Moreover, the decertification election which took place on
March 7, 1975, was likewise past history at the time Treacy
began his August 7 interrogations of Respondent's witness-
es in preparation for the hearing. Thus, at the time of
Treacy's prehearing employee interrogations, the contest
and strife between the Company and the Union for votes in
the decertification election had long stopped. Similarly at
the time of Treacy's prehearing interrogations, the Febru-
ary unfair labor strike caused by Respondent's discharge or
suspension of employees Pedro Ramos and Rodney Mason
had ceased long ago and the two employees had been
reinstated as a part of the strike settlement worked out by
Treacy. Under these circumstances, I find that Respon-
dent's long past unlawful conduct was not a factor in
preventing Treacy's prehearing interrogations from being
carried on "in a context free from employer hostility to
union organization."
Next counsel for General Counsel contends that because
Treacy's interrogations took place in Plant Manager
McGlone's office and because McGlone had committed
numerous violations of the law, the interrogations did not
take place in a context free from employer hostility to
union organization. I also find this contention without
merit for substantially the same reasons I found above for
not finding Treacy's interrogations to be coercive by
reason of Respondent's long past violations of the Act. An
additional factor in this determination is the fact that the
only quiet place in the plant for Treacy to conduct his
employee interrogations was in McGlone's office and the
further fact that McGlone was not present at any of the
interrogations and does not appear to have been in the
plant or around the area of his office at the time of the
interrogations. Similarly, McGlone had no part in sum-
moning the various employees for questioning by Treacy as
this was done by Assistant Manager Zikas who is not
charged in the complaint with any violations of the Act in
his capacity as an agent of Respondent.
General Counsel's final contention on safeguard 4 is that
Treacy's interrogations in preparation for hearing herein
were inherently coercive because of Treacy's own unlawful
conduct by his (alleged) promises of benefits to Respon-
dent's employees at the employee meetings of February 27
and March 3 and 5, 1975, if they would abandon the Union
at the then forthcoming decertification election. This
contention is likewise rejected because my findings on the
issue of whether such promises were made show that
Treacy not only did not make the alleged promises, but
also show that some of the employees at the noted
employee meetings actually walked out of the meetings
because of Treacy's adamant refusal to make any such
promises of benefits.
Passing on to safeguard 2, it is renoted that that
safeguard requires the employer who seeks to interrogate
an employee in preparation for a hearing must, "assure him
that no reprisal will take place," as one of the requirements
the employer must meet to avoid 8(a)(1) liability. Although
counsel for General Counsel admits that no "magic words"
must be used in conveying assurances against reprisals to
employees, he argues that Treacy as Respondent's attorney
and agent failed "to convey to the employees that no
reprisals will be meted out against them because of their
answers." My findings above show that Treacy's expres-
sion to the employees that "Nothing is going to be held
against you," or the variation thereof, "There will be no
hard feelings no matter what you decide," were assurances
to the employees that no harm would befall them if they
chose not to be questioned or if their answers were
unfavorable to their employer. I deem and find these
expressions to be the equivalent to the expression "that no
reprisal will take place" and probably more meaningful as
common experience shows that the word "reprisal" is not a
common expression among common people. Cf. Essex
Wire Corporation, 188 NLRB 397, 411 (1971), where the
expression of "no harm" would result whether or not the
employees agreed to be questioned was deemed in effect to
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be the equivalent of an assurance of no reprisal. Cf. also
with Salina Concrete Products, Inc., 218 NLRB 496 (1975),
where the words, "Are you willing?", are deemed to be the
equivalent of the word, "voluntary" as used in safeguard 3
in Johnnie's Poultry. Finally, there is no evidence that
Respondent in the months between the first hearing herein
in the late summer of 1975 and the supplemental hearing
herein in early 1976 visited any reprisals on the employees
who refused to consent to questioning or who, after
consenting to questioning, refused to answer certain
questions. Thus the record shows that Respondent kept
Treacy's promises to the employees that nothing would be
held against the employees who declined to be questioned
or who declined to answer certain questions.
Moving on to safeguard 5 in Johnnie's Poultry, it is
renoted that it requires that an employer's questioning
"must not be coercive in nature." Counsel for General
Counsel contends that Treacy's questioning was coercive in
nature because for the most part his interrogations related
to "the truth of statements made at the February 27, March
3 and March 5 [employee] meetings-at which he was
present and therefore knew full well what had occurred."
In elaboration of this contention, counsel for General
Counsel rhetorically asks, "How could Treacy's purpose
have been to secure facts when he already had the facts?"
I find this argument without merit because regardless of
what Treacy personally knew of his own knowledge of
what had occurred at the three employee meetings, he had
no knowledge of how the employees would remember what
had been said at the meetings or how the employees would
testify thereto at the hearing. To properly prepare for the
hearing, Treacy owed a duty to Respondent, his client, to
learn in advance of the hearing whether there would be
dispute over what he and Respondent's vice president,
O'Hagan, had actually told the employees at the three
employee meetings as it is common knowledge that two or
more persons who have witnessed the same event may
come up with wholly different versions of what occurred.
As it turned out, Treacy's prehearing employee questioning
as shown by the transcripts thereof reveal an accord
between Treacy and the questioned employees that Treacy
had not made any express or direct promises of benefits to
the employees at the three employee meetings if they would
abandon the Union. I find that this in itself was a
legitimate purpose of the interrogation because it aided
Treacy in advance of the hearing on what to expect in the
way of testimony from the same employees at the actual
hearing of the case and legitimately further laid a basis for
impeachment if at the hearing the witness departed from
what he had told Treacy in his prehearing interrogation.
Counsel for General Counsel also urges that Treacy's
prehearing questioning of Respondent's employees was
coercive in nature because "through leading questions" he
"sought to alter the answer of the employee," but cites no
examples of this from the transcripts of the interrogations.
My own examination of the transcripts shows that Treacy
questioned each of the employees without coercion but
with tact and the utmost courtesy and while, to be sure,
Treacy did ask some leading questions, that in itself did not
make the questioning coercive as the very purpose of a
prehearing investigation by interrogation is to probe for the
facts. A typical example of the noncoercive nature of
Treacy's questioning is reflected in the findings above
where it is shown that when Treacy asked employee Unzo
Givens, "So far have I asked you any question that you
object to?", Givens replied, "No." The same above findings
further show that Treacy released Givens without any
argument and with grace from answering any questions
that Givens stated should be best left for answering at the
hearing proper.
In summary, I find and conclude that Treacy's prehear-
ing interrogations of Respondent's employees met all the
safeguards of Johnnie's Poultry against the dangers of
coercion inherent in such employer interrogations and that
accordingly Respondent's interrogations of its employees
through Treacy on matters involving their Section 7 rights
took place without incurring 8(a)(1) liability.
Alternatively, I find and conclude that there has been a
failure of proof under paragraph VIII (n) in the complaint,
as amended, here involved, that Respondent on August 6,
1975, through its agent (Treacy), "interrogated employees
concerning the testimony the employees had given and/or
were to give before the Board" because in a literal sense
there is not a scintilla of evidence of proof thereof. In other
words, the transcripts of Treacy's interrogations of the
seven employees he questioned totally fail to show that
Treacy asked a single question "concerning the testimony
the employees had given and/or were to give before the
Board." On the contrary, the transcripts show that Treacy's
interrogations related solely and exclusively to the employ-
ee's memories or recollections of the events alleged in the
complaint, as amended, under which Respondent is
charged with unfair labor practices.
In a broader sense it may be true, of course, that Treacy's
questioning of Respondent's employees on their recollec-
tions of the events charged to the Respondent in the
complaint, as amended, may also have resulted in indirect
questioning of the employees on the contents of their prior
sworn statements to the Board on the same events or of the
testimony the employees may be called upon to give on the
same events at the hearing herein.
I find, however, that notwithstanding such incidental
affects of Treacy's questioning, Respondent had the right
under Johnnie's Poultry to engage in such prehearing
questioning on the issues raised by the pleadings where as
here all the safeguards against coercion set forth in
Johnnie's Poultry have been met.
E. Findings of Fact With Respect to Whether
Respondent Should Be Ordered To Bargain With the
Union
As noted in the opening paragraph of this Decision the
parties regard the principal and critical issue herein, among
the myraid of issues in the case, to be whether an 8(a)(5)
order should be recommended requiring Respondent to
bargain with the Union. As stated by counsel for General
Counsel in his supplemental brief, "the heart of this case
involves the issue of whether Respondent will be ordered to
bargain with the Union...." This is the issue that
Respondent in its original 228-page brief, dealing exclu-
sively with 8(a)(1) and (3) issues in the case, does not
928
LAMMERT INDUSTRIES
directly address itself to, but now argues extensively in its
supplemental brief.
The issue is complicated by the fact that in September
1975 Respondent permanently closed both its Chicago
Wood Street plant, which had been under contract with the
Charging Party Union for 30 years, and its aforementioned
unrepresented, smaller Westwood Avenue plant in Addi-
son, a suburb of Chicago, and transferred the operations of
these two old plants and all of their interested employees to
a newly constructed plant in Addison on Fullerton Avenue
which had been under construction during much of the
time the above-named violations of Section 8(aXl1) and (3)
of the Act were taking place. During the construction of
the new plant and even before the construction began the
employees at both Respondent's Chicago plant and the old
Addison plant on Westwood Avenue were aware that they
would be offered transfers to the new plant when it was
completed and ready for operation.4 l
In the 30-year bargaining history here involved, the last
and final contract between the Union and the Company
covered the 2-year period between February 1, 1973, and
February 1, 1975. It is well established that a recognized
union by virtue of an existing collective-bargaining
agreement, as in the instant case, enjoys "a dual presump-
tion of majority-[ I ] a presumption that the union was the
majority representative at the time the contract was
executed, and [2] a presumption that its majority continued
at least through the life of the contract." Barrington Plaza
and Tragniew, Inc., 185 NLRB 962 (1970), enforcement
denied on other grounds sub nom. N.LR.B. v. Tragniew,
Inc., and Consolidated Hotels of California, 470, F.2d 669
(C.A. 9, 1972). Upon the expiration of the contract, the
presumption still continues but may be rebutted by (1)
clear and convincing proof that the Union did not in fact
enjoy majority support at the time of the refusal to bargain
or by (2) a good-faith doubt at the time of the refusal to
bargain as demonstrated by "objective considerations"
that the employer has some reasonable grounds for
believing that the Union has lost its majority status.
Barrington Plaza, supra, and cases cited therein.
Respondent by its original pleadings herein admits that
since on or about November 27, 1974, the Union has
requested the Respondent to bargain with it with respect to
the wages, hours, and other terms and conditions of
Respondent's employees at its Chicago Wood Street plant
and further admits "that it has not bargained with the
Union as alleged," but under paragraph XII of its answer,
in defense of its refusal to bargain, affirmatively alleges
that it "is not ... legally obligated to bargain collectively
with said Union" because "on or about November 27,
1974, a petition for decertification of said Union was filed
with the Board and on or about March 7, 1975, pursuant to
said petition, a decertification election was conducted by
the Board, resulting in ten (10) votes being cast for
representation by the Union and eleven (11) votes being
cast against representation by the Union, with no votes
41 Plant Manager McGlone's testimony shows that in late 1974 he spoke
to the employees in Respondent's Chicago plant about the Company's plan
to build a new plant in Addison and about their transfer to the new Addison
plant when completed. I infer and find that the employees in the then-
existing auxiliary plant in Addison also knew that they. too. would be
offered transfers to the new plant when completed in the same town of
Addison, although there is no direct evidence on this.
challenged." Paragraph XII of the answer further denies
that Respondent engaged in any unlawful acts "in order to
undermine the representative status of the Union," as
alleged in the complaint.
After the close of the first hearing herein on September 3,
1975, Respondent on September 12 moved to amend its
aforenoted paragraph XII of its original answer in which,
as above noted, its sole defense for its refusal to bargain
with the Union was that a decertification petition had been
filed on November 27, 1974, that it had not committed any
of the alleged unfair labor practices, and that it had won
the decertification election held on March 7, 1975. By its
motion to amend, Respondent proposed to readopt
paragraph XII of its original answer but to add to it for the
first time the following new defense for its refusal to
bargain, to wit; "At no time material hereto did the Union
represent a majority of the employees herein involved."
Before ruling on the motion, I required Respondent to
submit a statement in support of the motion, showing that
the then-completed record had some evidentiary support
for the amendment. That statement of support (Resp. Exh.
25) was offered and submitted into evidence on February
4, 1976, which was the last day of the second hearing in this
consolidated matter. On the basis of the facts stated in
Respondent's statement of support, the motion to amend
paragraph XII of the complaint was allowed. As reflected
in its statement of support for the amendment, Respondent
seeks to prove primarily through employee Norbert Kurlik
that at all times here critical it had knowledge that the
Union no longer represented a majority of the unit
employees. In its supplemental brief Respondent claims it
had such knowledge of lack of union majority support at
least prior to December 9, 1974, which is the date the
complaint alleges and I found Respondent committed its
first unfair labor practice.
In summary from the pleadings and the record as a
whole, I find that the Union requested bargaining for a
new labor contract on precisely November 27, 1974, and
that the Respondent precisely on that date refused to
bargain. Accordingly, I find that November 27, 1974, is the
critical date for the determination of whether or not the
Union on that date still enjoyed the legal presumption of
majority support from the unit employees here involved. 42
That presumption of majority status, under a long line of
Board decisions, is rebuttable only by (I) competent
evidence that Respondent as of November 27, 1974, had
knowledge that the Union in fact no longer enjoyed
majority status or by (2) creditable evidence that Respon-
dent as of November 27, 1974, had a good-faith doubt
based upon "objective considerations" of the Union's
continuing majority as of that date. Barrington Plaza,
supra, and cases cited therein; Bartenders, Hotel, Motel and
Restaurant Employers Bargaining Association of Pocatello,
Idaho and its Employer-Members, 213 NLRB 651 (1974).
To rebut this legal presumption of the Union's continued
majority support on the critical day of November 27, 1974,
42 Under the pleadings it is established that the appropriate unit here
involved includes all of Respondent's production and maintenance
employees at its Chicago plant but excluding all office employees, clerical
employees, professional and technical employees, guards and supervisors, as
defined in the Act
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent relies on a document bearing the title
"Petition" signed by most of the unit employees, expressing
an interest in a decertification election, which was filed
with the formal decertification petition. The opening
paragraph of that documemt which General Counsel calls
"a showing of interest petition" reads as follows:
The undersigned, employees of (sic) Lambert Indus-
tries, hereby requests the National Labor Relations
Board to conduct a decertification election with regard
to the above-named International Association of
Machinists and Aerospace Workers.
The document bears the signatures of 19 of Respondent's
employees out of the 21 unit employees at the Chicago
plant but Respondent claims that the document was signed
by 18 and not 19 employees, presumably because I of the
signers was not a unit employee.
Based on this "showing of interest petition" as combined
with the testimony of employee Norbert Kurlik that he told
Plant Manager McGlone about the petition and the
number of employee signatures thereon, Respondent
contends that it had knowledge that the Union did not
have majority status on the critical date of November 27,
1974, and that therefore Respondent was legally justified in
refusing to bargain with the Union from and after that
date. Respondent further argues that as it is not accused of
committing any unfair labor practices on or prior to
November 27, 1974, but only subsequent to that date, the
loss of union majority, "in the absence of employer unfair
labor practices ... employer unfair labor practices do not
relate back to re-establish such lost majority."
Respondent does not contend that it actually saw the
"showing of interest petition" on the critical date of
November 27, 1974, when it was filed with the Board. It
claims only that it was told about the petition and the
number of employee signatures thereon by employee
Kurlik. In his testimony Kurlik does not show the precise
date on which he gave that information to McGlone.
The record thus poses the question of when Kurlik
informed Plant Manager McGlone about the contents of
the petition and the number of signatures thereon.
Machinist Kurlik, heretofore mentioned in connection
with other issues, has been the prime employee mover for
the decertification of the Union. Now 27 years of age, he
freely admits that he has been dissatisfied with and critical
of the Union ever since he started working for Respondent
as an apprentice after graduation from high school. His
testimony shows that he took the initiative and was the
leader in the move to decertify the Union by circulating the
"showing of interest petition" among the plant employees
for their signatures, prior to its filing with the Board.
Kurlik testified under direct examination in behalf of the
Company that he told Plant Manager McGlone how many
employee signatures were on the showing of interest
petition "after it was filed." No attempt was made in behalf
of Respondent to clarify Kurlik's expression "after it was
filed." From that expression and other evidence, I infer and
find that Kurlik told McGlone about the number of
employee signatures on the petition on some date subse-
quent to the critical date of November 27, 1974, when the
petition was filed with the Board and at least subsequent to
December 9, 1974, when Respondent committed its first
alleged and proven unfair labor practice.
Other evidence in support of the inference that Respon-
dent did not learn about the number of employee
signatures on the "showing of interest petition" on the date
(November 27) it was filed, is a letter dated January 21,
1975 (G. C. Exh. 25), from Respondent's former labor
counsel, James R. Cox, to the Board. In his letter dated
approximately 2 months after the critical date of Novem-
ber 27, 1974, Cox stated, "It may be safely assumed that
preceding the actual filing of the Petition, the employees
discussed decertification and circulated the necessary
documents." Cox nowhere in his letter indicated that
Respondent even then had actual knowledge of the
contents of the "showing of interest petition." I find that
Cox's necessity, after an investigation into the facts, to
engage in assumptions about the circulation of the petition
some 2 months after it was filed is additional evidence that
Respondent had no knowledge from Kurlik or any other
employee as to the number of employee signatures on the
petition on the critical date of November 27, 1974, when
the petition was filed and for long time thereafter.
Additionally, the inference drawn above that Respon-
dent did not on the critical day have knowledge that a large
majority of its unit employees had signed the showing of
interest petition until long "after it was filed" is directly
shown by Respondent's own original answer of May 29,
1975, to the chief complaint herein, because the answer as
to that late date, a full 6 months after Respondent's refusal
to bargain, totally fails to assert or even mention the
"showing of interest petition" and the number of employee
signatures thereon as a defense for Respondent's refusal to
bargain with the Union. As noted above, Respondent's sole
defense under its original answer was that it had won an
election held pursuant to a decertification petition and that
it had not engaged in any unfair labor practices in order to
undermine the representative status of the Union, as
alleged in the complaint. It is thus clear that Respondent
did not become aware of the number of employee
signatures on the "showing of interest petition" until many
months after its November 27, 1974, refusal to bargain with
the Union and thus did not and could not have relied on
that knowledge as a basis for its refusal to bargain.
In summary I find that the Union's legal presumption of
majority status on the critical date of November 27, 1974,
has not been rebutted by employee Kurlik's testimony that
he divulged the number of employee signatures on the
"showing of interest petition" to Plant Manager McGlone
because Kurlik's own testimony shows that he did not give
McGlone that information until "after" the decertification
petition had been filed and other evidence shows that the
knowledge of the number of signatures on the showing of
interest petition did not become known to Respondent
until long after the critical date of November 27, 1974,
when that petition was filed.
Respondent in its brief urges the following additional
reasons for its claimed rebuttal of the Union's presumed
majority status as of the critical date of November 27,
1974, to wit:
930
LAMMERT INDUSTRIES
(a) a number of employees, prior to December of
1974, had advised Lammert they no longer wished to be
represented by the Union, and
(b) that a number of employees had filed unfair labor
practice charges against the Union.
In support of the claim that, "a number of employees,
prior to December 1974, had advised Lammert they no
longer wished to be represented by the Union," Respon-
dent relies on the testimony of Plant Manager McGlone
whose testimony in other connections has been found to be
uniformly unreliable and untrustworthy. McGlone testified
that three aforementioned employees, Norbert Kurlik,
Charles Wavra, and Edward Saunders, approached him
about the Union in early September 1974, "way before" the
decertification petition was filed because, "They didn't feel
that they were being served by the Union." McGlone
testified that the first employee to so express dissatisfaction
to him about the Union was Kurlik, but that a little later
Wavra told him the same thing and that Saunders "was
another one that wanted out." This testimony by McGlone
was given at the second hearing herein in February 1976;
McGlone was never asked or explained why he failed to
give the same testimony when he testified at the main
hearing herein in August 1975. Similarly, Kurlik and
Wavra, witnesses friendly to Respondent, likewise testified
in August 1975 but gave no testimony then that they had
expressed dissatisfaction with the Union to McGlone and
they were not called to corroborate McGlone's testimony
as above related in the February 1976 hearing. For these
reasons, but primarily because of demeanor evidence, I do
not credit McGlone's testimony that the three indicated
employees expressed interest to him about getting the
Union out, except possibly in the case of Kurlik.
But even if McGlone's testimony were credited, it does
not constitute a defense to Respondent's refusal to bargain
for the obvious reason that these isolated conversations
McGlone had with the three indicated employees cannot
serve as a basis for the formation of a good-faith doubt of
the Union's continued majority support because at most
they involved only three of the employees out of a unit of
21 employees.
One of the remaining affirmative defenses Respondent
relies on for its alleged rebuttal of the Union's presumed
majority status as of the critical date of November 27,
1974, is that, "In the Fall of 1974, the Union wrote letters
to Lammert, demanding that Lammert discharge eight (8)
of the aforesaid twenty-one (21) employees because said
eight (8) employees had failed and refused to pay dues to
the said Union." (G. C. Exh. 21 (h).) Although it is an
admitted fact that the Union sent these described letters to
Lammert, I find that these letters have no bearing on the
Union's presumption of majority support because it is well
established that a showing of lack of financial support of
an incumbent union is not the equivalent to a showing that
the employees no longer desire representation by the
Union. Bartenders, supra. The evidence shows that the eight
defaulting employees had merely fallen behind in their
payment of union dues, not that these employees did not
want the Union to continue to represent them. On the
contrary, the evidence shows that no less than four of the
eight employees who were in default on their union dues
were staunch supporters of the Union, to wit, the
aforementioned employees, Willie Carpenter, Wallace
Davis, Walter Ham, and Pedro Ramos. I find and conclude
that the mere demands of the Union for the discharge of
eight employees for nonpayment of dues had no affect in
destroying the legal presumption of the Union's continuing
majority support.
I also find without merit Respondent's companion
affirmative defense 43 for its refusal to bargain with the
Union on the ground that, "In the Fall of 1974, a number
of the aforesaid twenty-one employees filed a charge
against said Union with the Regional Director...."
Contrary to Respondent's representation that a "number"
of Respondent's employees filed a charge against the
Union, the charge itself (G. C. Exh. 12 (a)) shows that only
one employee, Benito Gonzalez, filed the charge. The
charge was that the Union requested the discharge of six
named employees, including Benito Gonzalez, Willie
Carpenter, and Wally Davis, "because of their support for
an employee [decertification] petition]," whereas in fact
the Union had requested their discharge for nonpayment
of union dues. As heretofore noted, the Regional Director
refused to issue a complaint under the charge on the
ground that "the evidence does not show the Union
unlawfully requested the Employer to terminate any
employees." The prior findings also show that Plant
Manager McGlone unlawfully but unsuccessfully sought to
induce and encourage Willie Carpenter and Wally Davis to
file such charges against the Union. In addition the record
shows that the charge was filed on December 4, 1974, some
7 days after Respondent's refusal to bargain with the
Union. Under these circumstances I find that the filing of
the charge here under consideration was totally lacking as
an objective consideration to foster a good-faith doubt of
the Union's majority status.
Finally, even if it is assumed under the conditions most
favorable to Respondent that on November 27, 1974, when
it refused to bargain with the Union that the Company had
full knowledge of the "showing of interest petition" and the
names of the 18 employees who had placed their signatures
thereon, that document contained no information per se to
rebut the presumption the Union had under established
law that it enjoyed majority status because the petition was
merely and literally only a "request" for a decertification
election. As properly stated by counsel for General
Counsel, the petition does not constitute evidence that the
employees who had signed the petition did not support the
Union. It takes more positive evidence to prove lack of
union support by a majority of Respondent's unit employ-
ees.
Any inference from the mere fact of the signatures of the
18 employees on the request for a decertification election
that all of these 18 employees wanted to get rid of the
Union would have been shattered in the eyes of Respon-
dent by the fact that among such signatures were the
signatures of at least five obvious union adherents such as
43 Respondent's affirmative defenses in its answer in G.C. Exh. 21 (h).
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willie Carpenter, Rodney Mason, Wallace Davis, Walter
Ham, and Pedro Ramos. On the contrary, I infer and find
that these five union supporters, and perhaps others, signed
the "showing of interest petition" in the expectation that a
secret election would quell the two or three chronic
complainers such as Kurlik who began complaining about
the Union from the time he was first employed by the
Company as an apprentice upon graduation from high
school.
Finally, it is well established that the mere filing of a
decertification petition does not destroy the presumption
that a recognized union enjoys of continued majority
status. The Rogers Manufacturing Company, 197 NLRB
1264 (1972), enfd. 486 F.2d 644 (C.A. 6, 1973); Muncy
Corporation, 211 NLRB 263 (1974); Cavalier Division of
Seeburg Corporation and Cavalier Corporation, 192 NLRB
290, 291 (1971). Thus, the mere filing of the decertification
herein did not destroy that presumption. As the "showing
of interest petition" herein was filed as a part of or an
appendix to the formal decertification petition, I find as a
matter of law that its filing likewise does not destroy the
Union's presumption of majority status.
Conclusions and Discussion
In sum, based on the above findings and governing rules
of law, I find and conclude that Respondent offered no
evidence showing the Union in fact did not enjoy majority
status and demonstrated no objective considerations
warranting a reasonably based doubt as to the Union's
continuing majority status on the critical date of November
27, 1974, when it refused to bargain with the Union and,
therefore, its refusal to bargain violated Section 8(a)(5) of
the Act.
I further find and conclude that Respondent cannot rely
on its winning of the decertification election on March 7.
1975 (even if it had won the election by more than the one
vote victory it had), as a defense to its withdrawal of
recognition from the Union because prior to the election
Respondent had committed numerous and flagrant unfair
labor practices as has been found and set forth above in
numerous pages of this Decision. These unfair labor
practices included Respondent's discriminatory termina-
tion of two union adherents; its threat of reprisals for union
activity; promises of benefits designed to induce an
employee to resign his position with the Union and
abandon his support of the Union; inducements to support
antiunion charges; bribing a voter employee, unlawful
interrogations; and other unlawful interference which have
virtually affected every person in the unit. I find that
traditional remedies in the present case would be ineffec-
tive to remove the coercion and interference summarized
above from the minds of Respondent's employees.
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
As it has been established that the Union enjoyed a
presumption of continued majority status from and after
November 27, 1974, when Respondent refused to bargain
with the Union and as I find that Respondent's numerous
unfair labor practices have made the holdings of a free and
fair election impossible, an order requiring the Respondent
to bargain is normally in order under well established law.
Decorel Corporation, et al, 163 NLRB 146 (1967); Auto-
mated Business Systems, A Division of Litton Business
Systems, Inc., A Subsidiary of Litton Industries, Inc., 205
NLRB 532 (1973), remanded 497 F.2d 262 (C.A. 6, 1974);
Westminster Community Hospital, Inc., 221 NLRB 185
(1975).
But Respondent has a further defense against the entry
of bargaining order herein which will be given consider-
ation in the next section of this Decision. Briefly,
Respondent's final defense against a bargaining order is
that the old bargaining unit at its principal plant in
Chicago was dissolved and supplanted by an alleged new
unrepresented unit when the Company on or about
September 15, 1975, closed both its Chicago plant and its
auxiliary plant on Westwood Avenue in Addison, Illinois,
and transferred their operations and employees to a new
plant on Fullerton Street in Addison, Illinois. Respondent
contends that any duty it may have had to bargain with the
Union ended with the alleged dissolution of the old
represented bargaining unit and its alleged displacement
by a new unrepresented unit.
F. Findings of Fact Related to Issue of
Respondent's Obligation To Bargain at its New
Facility
Based on the following largely stipulated and undisputed
facts, Respondent contends that the old bargaining unit
that had existed at its Chicago plant is now dissolved and
superseded by a new unit which because it is new,
Respondent argues it is under no obligation to bargain
with.
As heretofore shown, on March 7, 1975, the date of the
decertification election, and for years prior thereto,
Respondent owned two plants in the State of Illinois for
the manufacture of vacuum pumps and compressors. One
of these plants, the largest, was located on Wood Street in
Chicago, and the other smaller plant was located on
Westwood Avenue in Addison, a suburb some 20 miles
distant from Chicago. The finding made earlier in this
Decision that the Westwood Avenue plant was an auxiliary
plant to the larger Chicago plant is reiterated here.
Previous findings show that one of the employees at the
Chicago plant, the aforementioned Charles Wavra, was
required to shuttle on a daily basis between the Chicago
plant and the Addison Westwood Avenue plant in
connection with his work as a specialist in both plants.
Both the Chicago plant and the Addison Westwood
Avenue plants were operated under the management of the
aforementioned Plant Manager McGlone. In carrying out
his duties, McGlone also shuttled frequently between the
two plants.
By stipulation it is established that in September 1975,
some 6 months after the decertification election, Respon-
dent permanently closed its factory in Chicago and also its
factory at Westwood Avenue in Addison, Illinois, and
transferred 19 of the 20 employees in the Chicago plant
and all of the employees in the Westwood Avenue plant in
Addison, to a newly constructed factory on Fullerton
Street in Addison, Illinois.
It is also established by stipulation that the majority of
the employees formerly employed at the Chicago plant and
a substantial number of employees formerly employed at
932
LAMMERT INDUSTRIES
the Westwood Avenue plant in Addison, were, while
employed at these respective facilities, engaged in produc-
tion and maintenance work in and about the manufacture
of vacuum pumps and compressors, and that after their
transfer to the new Fullerton Street factory in Addison,
they continued to be employed by Respondent as produc-
tion and maintenance employees in and about the
manufacture of vacuum pumps and compressors.
The parties have also stipulated that after the transfer of
the Chicago plant's production and maintenance employ-
ees to the new Fullerton Street factory in Addison, they
used substantially the same equipment, machinery, and
methods and continued to produce the same type of
vacuum pumps and compressors as they had done in
Chicago plant. In the absence of any evidence to the
contrary, I infer and find that after the transfer of the
Company's production and maintenance employees at its
Westwood Avenue plant in Addison to the new Fullerton
Street plant on Fullerton Street in Addison, they likewise
used substantially the same equipment, machinery, and
methods and continued to produce the same type of
vacuum pumps and compressors as had been done at the
Westwood Avenue facility in Addison.
It is also stipulated that Earl McGlone who had been
plant manager of both the Chicago plant and Westwood
Avenue plant in Addison, continued to function in the
same capacity at the new Fullerton Street factory in
Addison.
I reiterate here an earlier finding that McGlone had
informed the employees at the old Chicago plant and the
old auxiliary Addison plant at the beginning of the
construction of the new plant in Addison or even earlier
that they would be transferred to the new plant upon its
completion. I further find that McGlone gave this informa-
tion to the employees at the two old plants at least 9
months before their actual transfers to the new plant took
place on or about September 15, 1975.
As previously found the production and maintenance
employees at Respondent's former Chicago plant have
worked under labor contracts for 30 years from 1945 to
February 1, 1975, when the Union's last contract expired
and was never renewed because of Respondent's refusal to
bargain, whereas Respondent's Westwood Avenue plant in
Addison, although acquired by Respondent in 1969, has
never been under union contract.
As of the time of the decertification election on March 7,
1975, it is undisputed that the bargaining unit of Respon-
dent's Chicago plant consisted of 21 employees, including
the aforementioned Pedro Ramos and Rodney Mason. It is
admitted that Mason quit his employment with the
Company in April 1975, and that Ramos did not continue
his employment with Respondent after it closed its Chicago
plant on or about September 15, 1975. As Mason was not
replaced, there were 20 employees in Chicago unit at the
time the Chicago plant was closed on or about September
15. With,Ramos refusing to accept a transfer to the new
11 Although it has been stipulated that in September 1975 Respondent
"transferred 19 of 20 employees from the Wood Street factory [the Chicago
factory] to the new factory on Fullerton Street. Addison, Illinois,"
Respondent in its brief states that only "sixteen of the W.ood Street
employees continued to work at Fullerton Avenue in production and
maintenance." The record does not support Respondent's statement that
plant, this accounts for the aforesaid stipulation that the
Company "transferred 19 of the employees from the Wood
Street factory [in Chicago] to the new factory on Fullerton
Street, Addison, Illinois." As the stipulation does not
describe these 19 employees as unit employees, I infer and
find from the stipulation and record as a whole that they
were bargaining unit employees. 44
As aforenoted all of the employees in Respondent's old
Westwood Avenue plant in Addison were transferred as of
on or about September 15, 1975, to Respondent's new
plant on Fullerton Street in Addison. It is stipulated that
included in this total group of employees who were
transferred to the new plant there were seven production
employees and an undisclosed number of nonunit persons.
Thus, in sum, as of about September 15, 1975, when
Respondent's brand new facility in Addison went into
operation, its unit of production and maintenance employ-
ees consisted of 19 transferees from Respondent's old
Chicago plant and 7 from Respondent's old Westwood
Avenue plant in Addison, or a total unit of 26 production
and maintenance employees. It is further established by
stipulation that these seven employees from Westwood had
the same job classifications as the unit employees from the
Chicago plant. They performed the same unit work under
the same conditions of employment as performed by the
employees from the Chicago plant unit.
As of the start of operations of Respondent's new
Fullerton Street facility on or about September 15, 1976,
there is no evidence that the number of employees in the
unit of the production and maintenance employees at the
new facility exceeded the 26 such employees who were
transferred from Respondent's former plant in Chicago
and its former plant on Westwood Avenue in Addison. As
aforenoted 19 of these employees came from the old
bargaining unit in the abandoned Chicago plant and the
remaining 7 employees came from the unrepresented unit
in the abandoned Westwood Avenue plant.
As of January 28, 1976, Respondent had increased its
unit of 26 production and maintenance employees at its
new Fullerton Street facility to a staff of 33 employees by
new hirings from time to time after the operation of the
new plant had started on or about September 15, 1975.
Between the opening of Respondent's plant on or about
September 15, 1975, and January 28, 1976, 3 of the original
19 unit employees who had been transferred from the
closed Chicago plant to the new plant ceased their
employment at the new plant and were replaced by new
unit employees.
I find the fact that some of the 19 original Chicago unit
employees here involved ceased their employment at
Respondent's new Addison facility after their transfers
thereto is immaterial on the question of whether the
original organized unit at the Chicago plant became
dissolved on or about September 15, 1975, when the
members of that unit were transferred to the new plant.
only 16 of the Wood Street employees continued to work at Fullerton in
production and maintenance; the record shows as found above that 19 of
the 20 employees in production and maintenance at the old Chicago plant
on Wood Street transferred to the new plant in Addison on or about
September 15, 1975, when it opened for operation.
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion and Conclusions
As heretofore noted, there were 20 production and
maintenance employees in the old Chicago plant's bargain-
ing unit when the Chicago plant was closed on or about
September 15, 1975. Simultaneously with the closing of the
Chicago plant, the operations thereof and 19 of the 20
maintenance and production employees employed therein,
were transferred to Respondent's new Fullerton Street
plant in Addison, a suburb of Chicago. The 19 represented
employees from the Chicago plant, upon their transfer to
the new plant, on or about September 15, 1975, were
simultaneously augmented by the 7 unrepresented produc-
tion transferees to the new plant from the old auxiliary
plant in Addison.
Because of this merger of the virtually undiminished
bargaining unit from the Chicago plant with the unrepre-
sented bargaining unit from the old Addison plant,
Respondent in effect claims (1) that a new unit was created
at the new plant, (2) that "General Counsel must prove that
the Union represents a majority of the employees" at the
new plant, and (3) that in absence of such a showing,
Respondent is under no obligation to bargain with the
Union.
Under normal conditions this question of representation
would be resolved by an election, but in the present case
because of Respondent's numerous and serious unfair
labor practices at the old Chicago plant prior to the
representation election held therein on March 7, 1975, the
option of a postelection is no longer available to Respon-
dent or the Union because the lingering effects of the prior
unfair labor practices cannot be dissipated by traditional
Board remedies.
Thus, the question for decision here is whether the old
Chicago bargaining unit of 19 employees was in fact
dissolved by its merger with the 7 unrepresented unit
members of the old Addison plant or continued its
existence at the new plant as the dominant group.
Under all the facts and circumstances of this case, I find
and conclude that the former Chicago 19-member bargain-
ing unit retained its majority status after its transfer to the
new Addison plant notwithstanding the fact that the 7
production and maintenance workers from the old Addi-
son plant were added to its ranks on the day of the opening
of the new plant. In other words, I find that the smaller old
Addison plant unit was absorbed into and became a part of
the former established larger unit from the Chicago plant
upon the opening of the new plant. I therefore find and
conclude that the heretofore found obligation of Respon-
dent to bargain with the Union became a continuing
obligation at its new plant in Addison.
These conclusions are based on a number of factors in
the present case which the Board has held are determining
criteria on the question of whether a bargaining obligation
remains where a unit is relocated and certain employees
are added to the relocated unit. In such situations, the two
foremost criteria are, (I) whether the operation at the
relocated plant is a new operation or merely a continuation
of the old operation and (2) whether there has been a major
14 Although there is no contract bar in the instant case, the quoted
principle is applicable.
change of personnel. Purolator Products, Inc. (Van Nuys
Plant), 160 NLRB 80 (1966); The Kroger Company, 155
NLRB 546 (1965); General Extrusion Company, Inc.,
General Bronze Alwintite Products Corp., 121 NLRB 1165
(1958). As stated in General Extrusion Conmpany, supra, "a
mere relocation of operations accompanied a transfer of a
considerable proportion of the employees to another plant,
without an accompanying change in the character of the
jobs and the functions of the employees in the contract
unit, does not remove a contract bar."4 5
In the present case we have a mere relocation of
operations and a transfer not "of a considerable proportion
of the employees to another plant" but a transfer of all but
one of the unit employees from the Chicago plant to the
new Addison plant. The fact that there was no change in
operations at Respondent's new plant is borne out by the
Company's stipulation that the employees from the former
Chicago plant continued to use substantially the same
equipment, machinery, and methods and produced the
same products at Respondent's new plant as formerly done
at the Chicago plant. Respondent further stipulated that
the operations at the new plant likewise remained under
the same supervision; namely, that of Plant Manager
McGlone and the former foremen at the Chicago plant.
Additionally on questions of whether there is a continu-
ing employer obligation to bargain with a relocated
represented unit when it is augmented by another unrepre-
sented unit from another location, the Board gives
consideration to the size of the two groups of employees
and which of the two groups is predominant. Thus, the
Board holds that, "An accretion is found where a relatively
small related operation is included or added to the
coverage of a collective-bargaining unit involving a larger
group of employees." Hudson Berlind Corporation, 203
NLRB 421(1973). See also Boston Gas Company, 221
NLRB 628, fn. 5 (1976). As shown above the old Addison
factory was engaged in the manufacture of the same
products as made in the old Chicago plant and the
machinery used in both of these now closed plants were
substantially the same. As also shown above, one of the
regular employees at the Chicago plant made daily shuttles
between the Chicago plant and the old Addison plant in
connection with his duties at both plants. The earlier
findings also show that both the old Chicago factory and
the old Addison factory were under the supervision of the
same plant manager, the heretofore often mentioned, Earl
McGlone, who likewise shuttled frequently between the
two plants in the performance of his duties. I reiterate here
my earlier finding that the old Addison factory was an
auxiliary facility to the old Chicago factory. Under these
interconnected facts together with the fact that the former
Chicago plant unit was numberwise the dominant group, I
find and conclude that, upon the opening of the newly
constructed plant in Addison and the transfer thereto of
the two groups, the unrepresented group from the old
Addison factory was accreted into the larger represented
group from the old Chicago plant.
Under the previous section of this Decision I dealt with
the question of Respondent's obligation to bargain with the
934
LAMMERT INDUSTRIES
Union with respect to its Chicago Wood Street plant while
the Company was still operating at that facility. In that
connection I found that Respondent was under a continu-
ing obligation to bargain with the Wood Street unit from
and after the critical date of November 27, 1974, when the
Company refused to bargain and that Respondent's refusal
to bargain with the Union constituted a violation of
Section 8(a)(5).
Under the present section I find and conclude in
summary that after the Chicago unit was relocated at
Respondent's new Addison plant, the Company had a
continuing obligation to bargain with the Union for the
numerous reasons stated above. Summarized these reasons
are: (1) the Chicago bargaining unit was relocated virtually
intact with 19 out of the 20 employees therein accepting
transfer to the new Addison plant; (2) there were no
changes of operation in the new plant as its operations are
the same as formerly at the old Chicago plant, namely, the
manufacture of vacuum pumps and compressors; (3) the
same machinery was used at the new plant as had been
formerly used at the Chicago plant; (4) the seven
unrepresented employees at Respondent's old Addison
plant, both before and after their relocation at the new
Addison factory, were also engaged in the manufacture of
vacuum pumps and compressors; (5) the machinery
formerly used at the old Addison factory is now used at the
new Addison plant; (6) the plant manager of the new
Addison plant is the same Earl McGlone who had been
plant manager of both the old Chicago Wood Street plant
and the old Addison plant; (7) of the two employee groups
relocated at the new Addison factory, the dominant group
is the former Chicago plant bargaining unit as it outnum-
bers the unrepresented unit from the old Addison factory
by a ratio of about 3 to 1; (8) the seven-man unrepresented
unit from the old Addison plant, heretofore found to be an
auxiliary plant to the Chicago plant, has been totally
absorbed and accreted into the former Chicago plant's
represented unit and has thus lost whatever separate
identity it may have had at the old Addison plant; and (9)
finally, the new plant is not located at a completely new
location but is located at the same town (Addison) where
one of its two former plants were located.
Because of the described perpetuation of the former
Chicago bargaining unit into Respondent's new Addison
factory and its dominant position therein, it follows and I
find that Respondent is not entitled to a new election to
determine majority status because Respondent by its own
numerous and serious unfair labor practices prior to the
decertification election of March 7, 1975, has rendered
impossible a free and uncoerced electoral choice by the
employees in the involved unit. I accordingly find and
conclude that Respondent should be required to bargain
with the former Chicago bargaining unit at its relocation at
the new plant in Addison.
Respondent relies on Purolator Products, Inc., supra,
which it describes as "a case nearly precisely in point" in
support of its contention that it not be held in violation of
Section 8(a)(5) of the Act for its refusal and failure to
bargain with the Union at its new location in Addison. I
find that the facts in the Purolator case are so completely at
odds with the facts in the present case as enumerated under
the nine points shown above as to be completely inappo-
site. Whereas the facts in Purolator required a dismissal of
the 8(aX5) charges against that Company, I find that the
totally different facts in the present case under Board
established criteria requires a bargaining order.
G. Findings re Respondent's Alleged Fulfillment of
Promises of Economic Benefits Made Earlier at the
Former Chicago Plant
In an earlier section of this Decision I found that Plant
Manager McGlone in late December 1974 at the Wood
Street plant in Chicago promised Carl Brown, the afore-
mentioned employee and union shop steward, "economic
benefits when Respondent moves its facility to Addison,
Illinois, if there was no union," as alleged in paragraph
VIII (f) of the complaint, as amended. These economic
benefits were listed in a brochure which McGlone showed
to Brown. The brochure purported to set forth the standard
economic benefits that Respondent's parent company,
Componetrol, Inc., awarded to all of its nonunion subsidi-
aries.
In another earlier related section of this Decision I also
found that Plant Manager McGlone at an employee
meeting held at a private home on January 13, 1975,
"promised the assembled employees or told the employees
that he would try to get for them the superior Componetrol
employee benefits if the Union went out, substantially as
alleged in paragraph VIII (d) of the complaint, as
amended."
These promises were established by competent and
credited testimony under the allegations of the first
complaint herein, issued on May 22, 1975, in Case 13-CA-
14147.
The second complaint herein in Case 13-CA-14811,
issued on November 18, 1975, alleges under paragraph
VIII thereof that Respondent on October 1, 1975, at its
new factory location in Addison, Illinois, in fulfillment of
earlier unlawful promises of benefits, "granted to its
employees the Componetrol/Imperial-Eastman Insurance
Plan, the Componetrol/lmperial-Eastman Pension Plan,
sick pay and personal leave benefits and other benefits or
improvements in their terms and conditions of employ-
ment."
The second complaint also alleges under paragraph IX
that the aforesaid grants of employee benefits were made
without prior notice to or bargaining with the Union and
that the Company thereby unilaterally changed existing
wage rates, benefits, and conditions of employment.
In other words the second complaint alleges that, on or
about October I, 1975, within 2 weeks after the transfer of
the Chicago unit employees to the new Addison factory,
Respondent unilaterally put into effect the Componetrol
employee economic benefits it had unlawfully promised
them some 10 months earlier at the Chicago plant to take
effect when they were transferred to the new Addison
plant, if the Union had been voted out at the election of
March 7, 1975. As aforenoted the Company won the
election by one vote.
Respondent admits that on October 15, 1975, it unilater-
ally installed a series of economic benefits not only for the
unit transferees from the Chicago plant but for all of its
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at the new Addison factory under what it terms
the Componetrol/Imperial-Eastman Insurance Plan and
the Componetrol/lmperial-Eastman Pension Plan, the
details of which are set forth in a pamphlet with a covering
letter which was distributed to all Lammert employees. (G.
C. Exh. 23.) As aforenoted Respondent Lammert is a
division of a group of four such divisions owned by
Componetrol, Inc., which in turn is owned by the ultimate
parent company, Imperial-Eastman Corporation, which
through its various subsidiaries owns 18 manufacturing
facilities throughout the United States.
Prior to the October 15, 1975, installation date of the
Componetrol/Imperial-Eastman Insurance and Pension
Plans for all of its employees at the new Addison plant,
Respondent Lammert continued to pay to its former
Chicago unit employees the wages and fringe benefits
called for in its expired collective-bargaining agreement
with one exception. The one exception is their pension
benefits because from and after February 1, 1975, the
I.A.M. National Pension Fund, which is a wholly separate
entity from the Union, terminated "participation and
coverage for Covered Employees at Lammert Industries"
due to the fact that the Union had been decertified in the
election of March 7, 1975, and that the "last contribution
received from the employer [Lammert] was for the month
of January 1975."
With the installation of the Componetrol/Imperial-East-
man Insurance and Pension Plans, Respondent simulta-
neously terminated the benefits paid to the former Chicago
unit employees under the expired collective-bargaining
agreement.
The benefits enumerated under the two Componetrol
plans includes sick pay and personal leave benefits, lunch
and rest periods, premium pay, group medical and life
insurance, paid vacations, paid holidays, educational
assistance, paid absences, leave of absences, and wage,
salary and promotion programs, and a pension plan "paid
for entirely by the Company" for all regular full-time
employees, except those hired after their 55th birthday.
A comparison of the benefits under the Componetrol
plans and the expired labor contract shows that some of
the Componetrol benefits were not enjoyed under the
contract but that others were similar to those in the
contract. The Componetrol pension plan was entirely new
to the employee transferees from the Chicago plant unit
because as heretofore noted the pension provisions under
the labor contract had been terminated many months prior
to the time the Componetrol benefits were put in effect at
the new Addison plant.
I find that on the whole the Componetrol benefits are
superior to the collective-bargaining agreement benefits
that Respondent had kept paying the unit transferees from
the Chicago plant, notwithstanding the expiration of the
labor agreement, until the Componetrol benefits were
substituted on October 15, 1976.
The Respondent adduced testimony with the intent to
prove that the Componetrol/Imperial-Eastman Insurance
Plan and Componetrol/Imperial-Eastman Pension Plan
were installed at the new Addison factory for all the
employees therein in order to comply with company policy
to achieve uniformity of employee benefits throughout the
four divisions of Componetrol, Inc., of which Respondent
Lammert is one, as the other three divisions were already
covered by the Componetrol Insurance and Pension plans.
Discussion and Conclusion
I find and conclude that Respondent's unilateral grant-
ing as of October 15, 1975, of the superior Componetrol
employee benefits to the former Chicago unit employees,
now at the new Addison factory, was in fulfillment of
Respondent's earlier unlawful promises to such employees
when they were still employed at the Chicago plant that
they would receive the Componetrol benefits upon their
transfer to the new Addison factory, if while they were still
at the Chicago plant the Union was voted out at the
decertification election of March 7, 1975, as had happened
by a vote of one, substantially as alleged in the complaint.
Respondent's principal defense to the charged violation
here under consideration appears to be that with the
September 15, 1975, consolidation of the 19 represented
production and maintenance from the Chicago plant and
the 7 unrepresented production and maintenance employ-
ees from the old Addison plant at the newly constructed
Addison factory a new and unrepresented unit had
emerged and for this reason it was not then unlawful for
the Respondent to unilaterally install the Componetrol
benefits at the new Addison plant in conformity with
Respondent's alleged and proven previous, unlawful
promises, and without notice to or bargaining with the
Union.
That defense was found untenable in the preceding
section of this Decision dealing with the bargaining issue
where I found under the findings therein that Respondent
has a continuing obligation to bargain with the former
Chicago unit through the Union at the new Addison plant.
Accordingly, I find that same defense for the same reasons
is also without merit in connection with the charges here
under consideration. In view of Respondent's continuing
obligation to bargain with the Union at the new Addison
plant, I find that Respondent's unilateral installment of the
superior Componetrol employee benefits at the new
Addison plant in fulfillment of its earlier unlawful promises
is a further violation of Section 8(a)(1) and (5) of the Act.
Respondent's other defense appears to be that the
installation of the superior Componetrol benefits at the
new Addison factory was in pursuance of a legitimate
business purpose to effectuate Respondent's long-estab-
lished "policy of making its benefit program as uniform as
feasible at all Componetrol plants."
I find that this alleged justification for legitimizing the
installation of the superior Componetrol benefits at the
new Addison factory is a cover for Respondent's final
effort to dissipate employee union support by sweetening
the benefits the transferees from the old Chicago plant
could have without representation at the new Addison
plant. I find that the granting of the Componetrol benefits
was the culminating effort in Respondent's long history of
unfair labor practices, including bribes, designed to break
up any remaining union sympathy and support.
In further justification of its uniform granting of the
Componetrol benefits to all of its employees at the new
Addison plant, Respondent states in its brief, "Had
936
LAMMERT INDUSTRIES
Respondent on or about October 1, 1975, excluded only
those previously represented employees [from the Compo-
netrol benefits], Respondent almost certainly would have
been charged with a violation of the Act."
The cases cited by Respondent in support of that
prediction are factually wholly different than in the instant
case. None of Respondent's cited cases involved situations
which presented the employer with the option, as the
Respondent had in the instant case, to merely preserve the
status quo of the employee benefits of its relocated
transferees at the employer's new place of business.
Respondent in its brief admits that it had that option and
does not appear to contend that it would have incurred any
violation of the Act if it had merely preserved at the new
Addison plant the employee benefit status the transferees
from the Chicago plant and the transferees from the old
Addison plant enjoyed while working at their respective
locations, at least until a final decision in the present
proceeding had been reached.
The fact that Respondent had that option but did not
choose to exercise it is still another indication that
Respondent granted the superior Componetrol benefits to
the transferees from the old Chicago plant in fulfillment of
its earlier unlawful promises to do so if the Union was
defeated in the decertification election and for the further
purpose of alienating any remaining support for the Union,
in obvious violation of Section 8(aX 1) and (5) of the Act, as
alleged in the second complaint herein.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Lammert Industries, a division of
Componetrol, Inc., a subsidiary of I-T-E Imperial Corpora-
tion, is an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
2. District No. 8, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, the Charging
Party, is a labor organization within the meaning of Section
2(5) of the Act.
3. At all times here pertinent all production and
maintenance employees of Respondent at its former plant
located at 221 North Wood, Chicago, Illinois, excluding all
office employees, clerical employees, professional and
technical employees, guards and supervisors as defined in
the Act, constituted a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. All production and maintenance employees em-
ployed by Respondent at its facility now located at 1040
West Fullerton Avenue, Addison, Illinois, excluding all
office employees, clerical employees, professional and
technical employees, 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.
5. At all times since November 27, 1974, the Union has
been and is now the exclusive bargaining representative of
46 N.L.R B. v. Express Publishing Conpan),: 312 U.S. 426 (1941);
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941): Consolidated
Industries, Inc.. 108 NLRB 60(1954). and cases cited therein.
all employees described in paragraphs 3 and 4, above, for
the purpose of collective bargaining with respect to rates of
pay, wages, hours and conditions of employment.
6. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(aXl) of the Act.
7. By discharging Pedro Ramos and laying off Rodney
Mason, Respondent violated Section 8(aX3) and (1) of the
Act.
8. By its conduct as described in paragraphs 6 and 7,
above, Respondent interfered with the employees' freedom
of choice in the decertification election conducted on
March 7, 1975.
9. By refusing since November 27, 1974, to recognize
and bargain collectively with the Union as the exclusive
representative of the employees in the unit described in
paragraphs 3 and 4, above, while engaging in conduct
which undermined the Union and prevented holding a fair
decertification election, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) of the Act.
10. By granting employees increased benefits in fulfill-
ment of earlier unlawful promises and in order to induce
employees to reject the Union as their bargaining represen-
tative, Respondent has engaged in unfair labor practices in
violation of Section 8(aX I) of the Act.
11. By unilaterally changing terms and conditions of
employment on October 15, 1975, without first bargaining
with the Union, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) of the Act.
12. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the recommended Order below, which I find necessary
to remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act. Because
of the character and scope of the unfair labor practices
found, I shall recommend a broad cease-and-desist order.4
Due to the numerous and serious violations of Section
8(aXI) and (3) of the Act, including a flagrant attempt to
bribe an employee to vote to decertify the Union at an
election, I find that the only appropriate remedy for the
cure of Respondent's refusal to bargain with the Union is
an order requiring the Respondent to bargain with the
Union. The Supreme Court in N. LR.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 594 (1969), stated that "the key to
the issuance of a bargaining order is the commission of
serious unfair labor practices that interfere with the
election processes and tend to preclude the holding of a fair
election."
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Due also to the fact that almost all of Respondent's
unfair labor practices were designed to undermine the
representative status of the Union and to dissipate and
destroy its majority standing, and thereby render impossi-
ble a free and uncoerced electoral choice by the employees
in the involved unit, I will recommend setting aside the
election held in Case 13-RD-996 and the dismissal of that
proceeding in view of the bargaining order recommended
herein.
Upon the foregoing findings of fact and the entire record
in this proceeding, I make the following recommended:
ORDER 47
The Respondent, Lammert Industries, a division of
Componetrol, Inc., a subsidiary of the I-T-E Imperial
Corporation, Addison, Illinois, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Promising money and/or reimbursement of union
dues and fees in order to induce employees to support
antiunion charges and abandon support for the Union.
(b) Promising its employees economic benefits if the
employees rejected union representation.
(c) Threatening to get rid of the Union.
(d) Ordering an employee to stop his union activity.
(e) Attempting to induce an employee to resign his
position with the Union.
(f) Indicating to employees that the Union stood as a
barricade to future benefits.
(g) Threatening to discharge employees who vote for the
Union in the election.
(h) Interrogating employees concerning their union
sentiments and feelings.
(i) Giving money to employees in order to induce and/or
reward the employee's known or suspected antiunion
activities.
(j) Promising greater accessibility to high company
officials in order to induce employees to reject union
representation.
(k) Instructing employees to remove union buttons and
other union material.
(I) Discouraging membership in District No. 8, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by discharging
employees or laying off employees, or in any other manner
discriminating against them in regard to their hire or tenure
of employment.
(m) Discharging or laying off or otherwise disciplining
employees for engaging in concerted activities for mutual
aid or protection with respect to wages, hours, or other
terms and conditions of employment.
(n) Refusing to recognize or bargain collectively with
District No. 8, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive bargaining
representative of all production and maintenance employ-
47 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ees employed at its plant now located at 1040 West
Fullerton Street, Addison, Illinois, excluding all office
employees, clerical employees, professional and technical
employees, guards and supervisors as defined in the Act.
(o) Granting increased benefits in fulfillment of earlier
unlawful promises and also in order to induce employees to
reject the Union as their bargaining representative.
(p) Unilaterally changing existing terms and conditions
of employment without first bargaining about such changes
with the Union.
(q) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain in good faith
with the above-named Union as the exclusive bargaining
representative in the above-described unit respecting rates
of pay, wages, hours, or other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Make Pedro Ramos and Rodney Mason each whole
for any loss of pay he may have suffered by payment to
each of a sum of money equal to that he would normally
have earned from, in the case of Pedro Ramos, January 17,
1975, the date of his discharge, to February 25, 1975, the
date of his reemployment, and in the case of Rodney
Mason, from January 31, 1975, the date of his layoff, to
February 25, 1975, the date of his reinstatement, less the
net earnings of each during said periods Crossett Lumber
Company, 8 NLRB 440 (1938), said backpay to be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), together with interest thereon at the rate of 6
percent per annum Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and reports, and all other records
necessary to determine the amount of backpay due under
this Order.
(d) Post at its new plant in Addison, Illinois, copies of the
attached notice marked "Appendix." 48 Copies of this
notice on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's
representative, 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 notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that such notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
4n In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
938
LAMMERT INDUSTRIES
IT IS ALSO ORDERED that as to all allegations of the
complaint not specifically found to have been in violation
of the Act, those allegations shall be dismissed.
IT IS FURTHER ORDERED that the election in Case 13-RC-
996 be set aside and that said proceeding be dismissed.
939