National Can Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1966

159 N.L.R.B. 647 (N.L.R.B. 1966)

NATIONAL CAN CORPORATION 647
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate, the, policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activity in behalf of American
Federation of Television and Radio , Artists by. means of discharge or in any
other manner unlawfully discriminate against employees in regard to hire or
tenure of employment or any term or condition of employment.
WE WILL NOT prophesy that there will be cutbacks in the announcing staff
should a union be selected as bargaining representative or promise considerate
treatment if a union is rejected.
WE WILL NOT condition any offer , of employment upon a promise not to
file unfair labor practice charges with the National Labor Relations Board.
WE WILL offer to Michael Ambrose, Charles Daugherty, and Lawrence
Boyer immediate and full reinstatement each to his former or substantially
equivalent position without prejudice to his seniority or other rights and
privileges and make each whole for any loss of pay resulting from the dis-
crimination against him.
All our employees are free to become, remain , or refrain from becoming or
remaining , members of the above -named union or any other labor organization,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8(a)(3) of the National Labor Relations Act, as amended, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
TULLIS AND HEARNE BROADCASTING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify Michael Ambrose, Charles Daugherty, and Lawrence
Boyer if presently serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 849
South Broadway , Los Angeles, California, Telephone 688-5229.
National Can Corporation and United Steelworkers 'of America,
AFL-CIO, District 31, Sub-District 4
National Can Corporation and United Steelworkers of America,
AFL-CIO, District 31, Sub-District 4, Petitioner . Cases 13-CA-
6861 and 13-RC-10399. June 17,1966
DECISION AND ORDER
On February 16, 1966, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled consolidated proceeding, finding that
159 NLRB No. 66.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in the attached Trial
Examiner 's Decision . The Trial Examiner also found merit in cer-
tain objections to the election filed in Case 13-RC-10399 , and recom-
mended that the election _ be set aside and the petition therein be
dismissed. Thereafter, the Respondent filed exceptions to the Deci-
sion and a supporting brief; the Charging Party filed exceptions;
and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order; 1
dismissed the petition for certification of representative filed in Case
13-RC-10399; and- vacated all prior proceedings.]
'Appearing in the Trial Examiner's Decision under the heading: Recommendations.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Chicago,
Illinois, on each day of August 16 to 20, and August 30 to September 2, 1965, on
objections to conduct affecting the results of an election, filed by Petitioner, and
on the complaint of General Counsel, as amended, and the answers, as amended,
of National Can Corporation, herein called the Respondent, and an order of con-
solidation, dated April 28, 1965.1 The complaint alleges violations of Sections
8(a)(5) and (1) and 2(6) and (7) of the Labor Management Relations Act, 1947,
as amended, 61 Stat. 136, herein called the Act. The parties waived oral argu-
ment and briefs filed by the General Counsel and Respondent have been carefully
considered . During the hearing I reserved rulings on several motions, including
Respondent 's motions to dismiss the complaint . These motions are disposed of in
accordance with findings and conclusions herein set forth.
'The charge herein was filed on January 22, 1965 , and the complaint was issued on
March 31 , 1965 , amended June 15, 1965, and further amended during the hearing herein.
An election was held on January 15, 1965, and thereafter, on January 22, 1965, Petitioner
filed timely objections to conduct affecting the results of the election. Subsequently,
pursuant to Board authorization , these matters were consolidated.
NATIONAL CAN CORPORATION 649
Upon the entire record 2 and my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation maintaining an office and place of busi-
ness at 5620 West 51st Street, Chicago, Illinois, herein identified as the Clearing
Plant, where it has been at all times material engaged in the manufacture of metal
cans and related products .3 During the calendar year immediately preceding the
issuance of the complaint, on March 31, 1965, Respondent manufactured, sold, and
distributed, at said Clearing Plant, products valued in excess of $50,000 which
were shipped from said place of business directly to points located outside the
State of Illinois. The complaint alleges, the answer admits, and I find that
Respondent is engaged in commerce, and in activities affecting commerce, within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The United Steelworkers of America, AFL-CIO, District 31, Sub-District 4,
herein called the Union, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
1. Issues
The principal issues raised by the complaint , as amended , and answers thereto,
and litigated at the hearing are whether the Respondent : ( 1) on and after Octo-
ber 26, 1964, when it was requested to recognize and bargain , and on or before
January 15, 1965, when an election was held by the Board , engaged in a course
of conduct designed to undermine the Union 's majority status , by (a) threats,
(b) promises of economic benefits, (c) interrogation , or (d) soliciting employees
to engage in surveillance ,4 in a manner constituting interference , restraint, and
coercion and therefore violative of Section 8(a)(1) of the Act; (2 ) solicited
employees to engage in surveillance , prior to the request for recognition and bar-
gaining, or engaged in interrogation after the date of the election, in a manner
2 General Counsel filed a motion to correct the transcript , on November 15, 1965, and
a statement in support thereof , on December 7, 1965, enumerating in excess of 25 errors
Respondent , on December 6, 1965, filed a statement in opposition to General Counsel's
motion , limited , nevertheless , to corrections of two alleged errors, of identical nature, in
the testimony of witness Janetzke.
An Order to Show Cause was issued by me , on January 13, 1966 , relative to an addi-
tional 25 apparent Inaccuracies , subject to objections , if any, returnable on or before
January 21, 1966. No objections have been filed
In addition . General Counsel has moved that General Counsel's Exhibit 4 (s), mis-
takenly placed In the "withdrawn exhibit " file (the authorization card of Ronald Sitar)
be included In the file of the exhibits received in evidence Said motion is granted The
record is corrected only to the extent that no objections to said corrections have been filed.
General Counsel correctly urges that a commonsense construction of the testimony of
the witness Janetzke would require the requested modification . Respondent correctly notes
that it is most unlikely the court reporter would make the same alleged error on two
occasions . In spite of General Counsel 's representation that the recollection of counsel
for the General Counsel and counsel for the Charging Party are in accord , my memory
is that the record presently correctly reflects the actual statement of the witness Janetzke.
Inferences and conclusions are considered infra, I here treat solely with the accuracy of
the transcript.
3 While It Is undisputed that Respondent , In fact, operates some 24 plants , 3 of which
are in the Chicago area , we are here concerned only with the operation Identified as the
Clearing Plant
'The allegations of paragraph VIII ( b) of the complaint , as amended , relative to Mc-
Govern, were withdrawn during the hearing.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of Section 8(a)(1) of the Act; or (3) whether Respondent's failure and
refusal to recognize and bargain collectively with the Union, as the exclusive repre-
sentative of its employees in an appropriate unit, constituted a violation of Section
8(a) (5) and (1) of the Act 5 Additionally, the objections allege that the Employer
threatened numerous employees with respect to their conditions of employment
should they vote for the Petitioner.
Respondent, by answer, admits that the unit in which the election was held,
pursuant to a consent-election agreement, is an appropriate unit; however,
Respondent denies that the alternative unit, alleged in the amended complaint, is
an appropriate unit Respondent denies that there was -a request for recognition
in an appropriate unit, and specifically denies the commission of any unfair labor
practices. The Employer denies having threatened employees with respect to their
conditions of employment, as alleged in the objections.
2. Supervisory personnel
It is undisputed that John Fehrmann,6 plant manager, Reginal I . Hardy, comp-
troller, Edward Vieth,7 personnel manager . at the Clearing Plant, Terrence
McGovern, assistant to Vieth, until May 10, 1965, and Edward Gorzynski, sales
office manager, at all times material herein, were agents of the Respondent and
supervisors within the meaning of Section 2(11) of the Act.
3. Background
Except as noted there is no dispute as to the background facts herein set forth.
The Union represents production and maintenance units in a number of Respond-
ent's plants , including such a unit at the Clearing Plant, and an office and clerical
unit at the Maspeth Plant , Long Island, New York. There have been master
agreements between the Union and Respondent since approximately 1955 or 1956.
John C. Strohecker, corporate manager of industrial relations, related that a mas-
ter agreement effective November 1, 1962, in effect all times material herein, is
applicable to units in 14 plants, and is supplemented by local supplements cover-
ing variations in working conditions.
Anthony Graczyk, staff representative for the Union , since 1943 , started his
efforts to organize Respondent 's office and plant clerical employees about the middle
of September 1964. At that time be attended , and participated in, a grievance
committee meeting of the P & M unit at which Ray Ohm s and Vieth represented
Respondent . At the conclusion of the meeting, Graczyk advised Ohm and Vieth
that the Union was in the process of organizing the office and plant clerical
employees.
The first organizing meeting was held on October 15, 1964 , and the following
meeting was held on October 22, 1964 . On October 22, at the meeting , under cir-
cumstances considered infra, and on October 23, 1964 , Graczyk obtained 24 au-
thorization cards .9
On Friday, October 23 , 1964, Graczyk mailed a request for recognition to
Respondent which was received on Monday , October 26, 1964 . Respondent did not
respond to this request. On Monday , October 26 , 1964, the Union filed a Petition
for Election, Case 13-RC-10399 . A copy of the petition was received by Respond-
ent, on October 27, 1964.
On October 26, 1964 , the corporatewide engineering department , industrial engi-
neering department , and area quality control office, as well as a district sales office,
General Counsel ' s contention is that the election , held on January 15, 1965, should be
set aside and a bargaining order issued . General Counsel cites as authority , the holdings
in Joy Silk Mills, Inc ., 85 NLRB 1263, enfd . as modified on other grounds 185 F 2d 732
(C A D C.), cert denied 341 U.S. 914 ; and Bernet Foam Products Co., Inc., 146 NLRB 1277.
9 Misspelled Fehrman in the complaint.
7 Misspelled as With in the complaint , and corrected by amendment.
8 Identified by Graczyk as industrial relations manager of the central division of
Respondent.
9 Of these , 22 are identified as employees who were in the unit of 40, all of whom were
eligible to and did vote in the Board election . The other two cards were from employees
Cahill and Gagel , who were in corporatewide departments , then located at Clearing Plant,
but said departments were to be physically relocated , as set forth, infra.
NATIONAL CAN CORPORATION 651
the latter servicing several plants , were all physically located at the Clearing Plant.
In November 1964 , in a house publication , Respondent had announced an intention
to move the corporatewide engineering department , the industrial engineering depart-
ment, and the area quality control office to a new executive office location, some
distances from the Clearing Plant . Subsequently, in April 1965, this move was
effectuated. -
On December 7, 1964, at the time a hearing has been scheduled in Case 13-RC-
10399, the parties entered into a consent-election agreement encompassing , within
an agreed-upon appropriate unit, office and plant clerical and sales office clerical
employees , being 40 in number , but excluding engineering department , industrial
engineering department , and area quality control office clericals . Pursuant to this
agreement , an election was conducted by the Regional Director, on January 15,
1965, and resulted in 49 votes for the Petitioner and 21 against , with all eligible
employees voting.
Objections, timely filed by the Petitioner , alleging that the Employer threatened
numerous employees with respect to their conditions of employment were ordered
consolidated with a hearing herein , by the Board , on April 28, 1965.
B. Interference , restraint, and coercion -
The complaint , as amended , contains numerous allegations of threats , promises,
interrogation , and a request for surveillance , by one or more of the supervisory
personnel identified , supra, all of which events are asserted to have occurred between
the date of the filing of the petition for election , October 26 , 1964, and the date of
the election , January 15 , 1965, with two exceptions . The evidence relative to these
alleged events is considered - seriatim. -
1. Vieth
a. Soliciting employee to engage in surveillance
Geraldine Jaros credibly related that she voluntarily resigned from Respondent's
employment on March 5, 1965. Previously she was steno-cleik in the personnel
department , '° from December 5 , 1963, until her separation.
On October 15, 1964, Vieth, Jaros' immediate superior , advised her that he had
heard that she was invited to attend a meeting , at which the office workers were to
consider organization . Vieth advised Jaros that he would like it very much if she
would attend the meeting and would report back to him what the Union had to
offer these employees. She responded that she would have to think about it, because
it put her in a very awkward position . Jaros asserted that, she later advised Vieth
that she would not attend the meeting , because she did not want to be placed in
the middle of everything , and that the request was unfair to her.ri
b. Interrogation and threats
Jaros asserted that she had a further conversation with Vieth , about November 30,
at which time he inquired as ',o how she would vote if she were eligible to vote.
She responded that she would vote yes, because nothing is 100 percent perfect, that
having worked in the personnel department , she believed that the Union benefited
the employees . , Vieth responded that she would lose her individuality . She advised
10 It is undisputed that while Jaros was excluded from the eligibility list, as a con-
fidential employee , by agreement of the parties , she nevertheless sought to cast a ballot.
I have considered her obvious prounion attitude as one factor, in evaluating her testimony.
11 Vieth denied any knowledge of union activity , by the employees , between the date in
September 1964, when Graczyk advised him and Ohm of Graczyk ' s intent to organize office
and clerical employees at the plant , and the receipt of Graczyk 's letter, requesting rec-
ognition , on October 26. Vieth asserted that Jaros brought up the subject of the Union
during the first week in November , mentioning that he probably had heard that she had
been attending union meetings , and advising him that she could not tell him anything
about the meetings . Vieth asserted that he advised Jaros that it was her business if she
attended the union meetings and was no concern of his. Vieth denied the assertions of
Jaros . To the extent the testimony of Vieth is at variance with that of Jaros , I credit
Jaros.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vieth that individuality did not pay her bills, and that the janitress made more
money than she did. Vieth then asked her if she placed herself in the same cate-
gory as a janitress.iz
Ronald J. Budrik was a supervisor of Respondent at the time of his testimony
herein, having been promoted in April 1965. Budrik was one of the employees
eligible to vote in the election, pursuant to the agreement reached by the parties.
Budrik credibly related two conversations with Vieth, the first during the first week
of January 1965, and the second 2 or 3 days before the election. Budrik asserted
that Vieth initiated the first conversation, and premised his remarks with "I feel you
favor the union." Vieth advised Budrik, in connection with the pending election,
that he wanted to explain benefits as they existed at that time in the P & M unit, as
compared to the clerical employees. Vieth then advised Budrik that under existing
policy he would receive a 2-week vacation faster than the employees in the plant
unit, that the insurance plan and hospitalization plan were better for the clerical
employees and that while they had profit sharing among the clerical employees
"with the union you probably won't have it." Vieth also asserted that with the
Union Budrick would lose his individuality, that with the Union there is a good
chance he would have to punch a timeclock, something the clerical employees were
not required to do. Veith also called Budrik's attention to the fact that he had
received $50 in raises inferentially in his monthly rate of pay. Budrik related that
Ray Smith, master mechanic at the Clearing Plant, was present during the second
conversation. At that time Vieth asked Budrick if he had given any more thought
to the election. Vieth repeated his previous statements and called Budrik's attention
to the fact that with the Union "you would more than likely do the same thing
that the other people do that punch the timeclock right now. In all fairness right
now there is no serious consequence for taking an extra few minutes [for lunch],
but if you were to punch a clock you would have to adhere to the ruling of the
company." 13
Thomas Janetzke, a clerical employee of Respondent, credibly related a conver-
sation he had with Vieth on January 14, 1965, during the morning break, in the
cafeteria.14 Janetzke acknowledged advising Vieth that he had been at the union
meeting the prior evening. Vieth asked Janetzke how he thought Ray Wheeler
would vote. Janetzke responded that Wheeler would probably vote no, in view of
the fact that his father and Fehrmann, plant manager, were good friends. Vieth
then asked Janetzke how Janetzke thought Ron Sitar would vote. Janetzke responded
12 Vieth sought to combine this conversation with the earlier conversation, set forth,
supra, placing the event as in the early part of November Vieth asserted that the dis-
cussion resulted from a voluntary disclosure by Jaros. Vieth acknowledged some of the
substance of the conversation was as related by Jaros Where the testimony is in con-
flict, I credit Jaros.
18 Vieth acknowledged having two conversations with Budrik, in the machine shop,
where Budrik was working as a draftsman clerk Vieth denied asserting to Budrik that
he felt 'udrik favored the Union. Vieth asserted that it was Budrik who raised the
question of timeclocks, inquired as to whether the clericals would have to punch time-
clocks, as the P & M unit was doing, if the Union came in, to which Vieth asserted he
responded that he did now know. Vieth acknowledged initiating the conversations, and
asserted that he wanted to point out to Budrik what hourly people presently had under
the master contract and the differences in the existing conditions for the clerical em-
ployees. Vieth asserted it was Budrik who raised the question of profit sharing. Vieth
denied advising Budrik that he now had profit sharing and that with the Union represent-
ing the clerical employees he would probably not have it. Vieth asserted that he advised
Budrik that he did not know what the outcome of the existing profit-sharing plan would
be, if the Union won. Where the testimony of Vieth is in conflict with that of Budrik,
I credit Budrik.
i4 Janetzke asserted , on both direct and cross-examination, that at the outset of the
conversation "I said to him, I'm not sure about your decision, . . General Counsel,
in urging correction of the record, has pointed out that the only pending decision was the
decision of the employees relative to voting in the election Accordingly, Janetzke's state-
ment lacks coherence . While I agree with this premise, the time and place to have
corrected this error expired when the record was closed without correction, if not earlier.
Accordingly, I do not find that Vieth asked Janetzke-what decision Janetzke had made
relative to the pending election, as Janetzke may have intended to relate, but did not
NATIONAL CAN CORPORATION 653
that he thought Sitar would vote yes. Vieth then inquired as to how Janetzke
believed Rejmenczak would vote , to which Janetzke responded that he was not
certain.15
Dorothy T. Keslin was employed as a teletypist, from June 1964 to July 1965.
Keslin credibly related that on approximately December 15, 1964, in accordance
with Respondent 's practice of explaining profit sharing to employees after 6 months'
employment, she had a conference with Vieth, in Vieth's office. At that time Vieth
advised her that if the employees were represented by a union she would not be
able to receive profit-sharing . Keslin specifically denied that Vieth made any refer-
ence to the master contract , which covered the P & M unit in the Clearing Plant as
well as others , during this conversation.16
David Watkins, initially employed in September 1964, as a ditto and mailboy, and
subsequently promoted to an accounting clerk, credibly related that on January 15,
1965, prior to the election, Vieth advised him that Vieth hoped he would make a
wise decision when he voted that afternoon , that Vieth did not think the Union could
do anything for the employees, and that the Company could actually help them and
benefit them more. While Vieth "thought" he told Watkins that he hoped that
when he voted it would be a "no vote," he denied making the other statements to
Watkins. Even if I were to find the statements related by Watkins were made, and
being not unmindful of representations made, on other occasions , by other super-
visory personnel, to Watkins, I am unable to find that Vieth's assertions exceed
the permissible statement of opinions provided for in Section 8 ( c) of the Act.
Richard Johnson, Jr., initially employed August 17, 1964, as an office boy, and in
training for record clerk at the time of his testimony, credibly related that he had
a conversation with Vieth on January 14, 1965, initiated by Vieth at Johnson's
work area. Vieth advised Johnson that Vieth wanted Johnson to understand some
of the things that "could happen" if a union came in. Vieth asserted that profit-
sharing would more than likely be taken away, that Johnson would lose his close
relationship with his supervisor and that a third person, a union steward, would be
in on such conversations . Vieth also advised Johnson that he was not punching a
timeclock and that more than likely there would be a timeclock put in , that break
periods would definitely be limited to 15 minutes and the lunch hour to half an
hour, that promotions would be limited by seniority and would not result so much
from the knowledge the employee had."
2. Vieth and Gorzynski
Interrogation
Anna Jokolis has been employed by Respondent for 17 years, the last 8 years in
the office, and is presently in the production control department . Tarsa is the pro-
duction control supervisor. Jokolis related that she had two conversations with
15 Vieth denied making the inquiries which Janetzke attributed to him , relative to how
the three employees would vote . Vieth asserted that, on the afternoon of January 14,
Janetzke walked by him and advised him that Sitar was strongly for the Union , to which,
Vieth asserted , he did not respond. On these conflicts I credit Janetzke.
16 Vieth acknowledged that employees become eligible for profit sharing after 6 months'
service. Vieth denied discussing anything about the Union with Keslin, but acknowledged
discussing profit sharing with her in December. Vieth acknowledged advising Janetzke,
and apparently others, that profit sharing was not provided for in the master contract
"and what would happen to it, I don ' t know." He denied making a similar statement to
Keshn. On this conflict I credit Keslin.
17 Vieth acknowledged having a conversation with Johnson . Vieth sought to cast the
conversation as a comparison between Johnson 's existing benefits , as a clerical employee,
and the benefits under the P & M unit contract relative to insurance , sick leave, and
promotions . Vieth asserted that Johnson inquired about profit sharing, that he responded
that it was not in the master contract, and that what would happen to profit sharing he
did not know . Vieth specifically denied advising Johnson that profit sharing would more
than likely be taken away . Vieth acknowledged telling Johnson that the P & Al unit
punched a clock, but asserted he said that he had no idea what would happen relative to
a timeclock for the clerical employees if the Union was successful . Vieth acknowledged
advising Johnson that the master contract calls for a half hour for lunch and 15 minutes
for break period, but denied advising Johnson these conditions would apply if the Union
prevailed. To the extent the testimony of Vieth is at variance with that of Johnson, I
credit Johnson.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vieth and Gorzynski, the latter supervisor in the sales department. On both occa-
sions Jokolis was called into Gorzynski's private office, and confronted by the two
named supervisors. Admittedly, Jokolis was senior, in service, among the clerical
employees. During the first of these conversations, about 3 weeks prior to the
election, Vieth asked Jokolis which way she was going to vote, and she responded
that she did not know. Vieth then asked why she was undecided and she related
some area of dissatisfaction. On January 14, 1965, Vieth again called Jokolis into
the sales office, where he and Gorzynski asked her which way she was going to
vote, and Jokolis asserted that she would not commit herself. After a conversation
of approximately 15 minutes, both Vieth and Gorzynski advised Jokolis not to
forget to vote "no union." 18
3. McGovern
Interrogation and Threats
Sophia Kufrovich has been employed by Respondent more than 8 years, and is
presently payroll clerk, petty cash custodian, receiver-clerk, and relief switchboard
operator. Kufrovich credibly testified that, on December 8 or 9, 1964, she had a
conversation with McGovern, in his office. McGovern asked Kufrovich why she
was so "dead-set" on bringing a union into the office . 19 She responded that she
wanted job security, and related that people had been discharged after a period of
5 or 6 years service. McGovern then asked her, "Do you think that your job
cannot be eliminated ." She responded that she realized that her job could be elim-
inated, but they could not do anything while the employees were in the process of
organizing a union and that she felt with the Union she would have job security.20
Dorothy T. Keslin asserted that, in December 1964, McGovern asked her what
her viewpoint on the Union was, and she responded anything that would benefit her
financially she was in favor of. This was her only conversation with McGovern
relative to the Union 21
Raymond Wheeler , employed as a production control clerk, credibly related that,
in the latter part of October, McGovern came to his desk and told him that McGov-
ern wanted to talk to him, in the assistant plant manager's office. , McGovern
asked Wheeler if he had been approached by anyone from the Union, or if anyone
had talked to him about the Union. Wheeler responded in the negative . McGov-
ern then advised Wheeler that McGovern wanted to know if he was ever
approached by a union representative, or anyone, and McGovern would like to
know who it was, and what the person said to Wheeler.
Wheeler had a further conversation with McGovern, in late December 1964, at
Wheeler's desk. At that time, McGovern advised Wheeler "I am surprised you
signed an authorization card," to which Wheeler did not respond. McGovern
repeated his statement, and added , "figuring that you had a good job and possible
pay raises and promotional advances and so forth . I didn 't see any need for you to
sign the card." McGovern then advised Wheeler he was not compelled to vote
18 The denials of Vieth and Gorzynski that they, or either of them, asked Jokolis how
she was going to vote, or how she felt about the Union, are not credited While Vieth
explicitly denied that either he or Gorzynski asked Jokolis how she felt about the Union,
Gorzynski ' s assertions were somewhat at variance . Gorzynski related that they "just
asked her-just, there is this union election coming up and what she could derive, what
benefits she could derive from having a union in the office against the benefits she has
through company policy or what she could gain on her own merits."
10 It is undisputed that McGovern attended the December 7 hearing , at the Board
offices , at which Kufrovich was present as a representative of the employees.
20 McGovern asserted the only conversation he had with Kufrovich was on January 15,
1965, at her desk where, in the presence of Vieth and Gorzynski, Gorzynski asserted
"Sophie, we all love you ," to which Kufrovich responded , "If there is only one vote for the
Union you know who it will be." McGovern denied having the conversation with
Kufrovich , which she related, on December 8 or 9, and denied asking her if she thought
her job could not be eliminated . On this conflict , I credit Kufrovich.
21McGovern acknowledged having a conversation with Keslin , but related that it was
confined to a personal inquiry. McGovern asserted that Keslin raised the question of the
Union, by asserting there was a lot of confusion in the office concerning the election, that
he confined his observation to the fact that the employees would decide whether they
wanted a union or not when the election was held. McGovern, apparently confused, later
denied that there was any mention of an election or the Union in this conversation. On
this conflict, I credit Keslin.
NATIONAL CAN CORPORATION 655
any certain way because of his signature on the card. Wheeler responded that he
would think everything over before he voted.22
Richard Johnson, Jr., whom I have noted, supra, was in training for a promotion
at the time of his testimony , related several conversations which he had with
McGovern. Johnson related that, about 2 weeks after he signed a union authoriza-
tion card, on October 22, 1964, he was in McGovern's office, with his supervisor,
Hardy, to discuss a promotion to production clerk. Johnson credibly related that
at the outset McGovern advised him that McGovern would in no way ask him
how he felt about a union , then McGovern proceeded to state that if there was a
union Johnson might not be able to get the job he was applying for. McGovern
mentioned that the Union had failed in some efforts to organize office employees.
Johnson asserted as the conversation was concluding McGovern asked, "Dick, may
I ask you how you feel towards a union?" Johnson asserted he responded that if it
came to a vote he would vote no.
Johnson asserted that in the early part of January McGovern came to his work
area and advised him that, as Johnson knew, there had been a petition for an elec-
tion and McGovern wanted to tell Johnson a few things concerning what could
happen if the Union came in. McGovern pointed out that they presently had a
15-minute break period and 30-minute lunch period, that if an employee took an
extra 5 minutes , "They don't sit on you, but if a union came in the employee would
have set times." McGovern then observed that Johnson was not presently punch-
ing a timeclock and, "More than likely if the union comes in, you would have to
punch a time clock." McGovern also advised Johnson that his overtime would be
cut out unless the factory worked, and that profit sharing would mole than likely
be taken away, that advancement (promotions) would be limited by seniority, and
not so much by intelligence or how an employee could perform.
Johnson related that he had a further conversation with McGovern, in early
January, in the cafeteria, at which Ronald Sitar, another employee, was present.23
During this meeting McGovern repeated his previous statements that if the Union
came in the employees would more than likely have to punch a timeclock, that
break and lunch periods would be limited to the specified time, that advancement
would be based not on ability but on seniority, and the employees "more than
likely" would not have profit sharing.
On election day, January 15, prior to the election, McGovern had a further con-
versation with Johnson, at Johnson's work location. At this time, McGovern
asserted that Johnson knew that this was election day, that McGovern wanted him
to go and vote. ' McGovern then repeated his previous statements and added that
if the Union was successful, Johnson would be paying some kind of fee for the
union dues.24
David Watkins credibly related that in early January, McGovern asked Watkins
to meet him in the cafeteria during his morning break period. David Rejmenczak,
22 McGovern denied asking Wheeler to accompany him to the assistant plant manager's
office, which was a vacant office, in the latter part of October , or inquiring of Wheeler if
he had been approached by anyone from the Union , or advising Wheeler that he wanted
to know if Wheeler was ever approached by a union representative , etc. McGovern as-
serted that he did have a discussion with Wheeler in the latter part of December relative
to Wheeler ' s college education . McGovern asserted that Wheeler volunteered that he was
confused about the election , and inquired as to whether profit sharing would be eliminated,
to which McGovern asserted he responded that this was an issue that would have. to be
bargained for. McGovern denied making the statements attributed to him by Wheeler.
On this conflict, I credit Wheeler.
2' While Sitar appeared as a witness , he was not questioned relative to this incident.
u McGovern acknowledged that he, Hardy , and Johnson met in McGovern ' s office to
discuss Johnson 's possible promotion . McGovern was unable to place the time of this
meeting, but ventured it was about the first of December . McGovern asserted that it was
Hardy who advised Johnson that he was being given an opportunity based on his initia-
tive "but people in the plant , if they had-if the job came up of this nature, you-it
would have to be posted for 2 consecutive days, so a man that was here a month or
sooner than you, would have more seniority , that is, he would be given the job ." Hardy,
at variance with McGovern, could not recall anything being said about the posting of
jobs in the plant, about seniority being a factor in consideration of promotion , or any dis-
cussion of the method by which people in the plant were promoted Hardy corroborated
McGovern 's assertion that the Union was not mentioned at the meeting where Johnson's
promotion was the subject. -
McGovern denied inquiring of Johnson as to Johnson 's attitude toward the Union,. or
that Johnson advised him that if it came to a vote that Johnson would vote no. Mc-
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another employee, was present during this conversation. At this time McGovern
advised both of them that they were much better off without a union, that their
chances of advancement with the Company were better, and that they would
"probably" lose their profit-sharing if the Union came in. Watkins denied that
McGovern mentioned that there would be bargaining relative to profit sharing.
Rejmenczak corroborated Watkins, both as to the meeting in the cafeteria and
McGovern's statements.
Watkins related a few days before the election he had a further conversation
with McGovern, in Watkins' work area. Watkins asserted that McGovern inquired,
"What is your stand on the union, for it or against it?" Watkins responded that he
had pros and cons on the issues. Thereupon, McGovern repeated his inquiry,
"How do you still stand on it?" Watkins gave McGovern some examples of what
he termed pros and cons. McGovern then advised him that his future was at stake
asserting, "Handle it with care, because your future is at stake here." as
Govern similarly denied advising Johnson that if a union came he would have to punch
a timeclock , and the other assertions attributed to McGovern by Johnson , including the
fact that profit sharing "more than likely would be taken away, if the union came in "
McGovern denied any conversation in the cafeteria at which Johnson and Sitar were
present , but acknowledged having had a conversation with Sitar , at which Johnson was
not present. -
McGovern acknowledged advising Johnson on election day of the place and time of
the election , but denied any other discussion that day with Johnson.
McGovern asserted it was Johnson who raised the question of continuance of profit
sharing, asserting there was confusion , to which McGovern asserted he responded that
this was an issue which would have to be bargained , if the Union was successful Mc-
Govern asserted that the subject of breaks and lunch time was initiated by Johnson, and
he told Johnson that the people in the plant have specific break periods, and when the
machines start to run they have to be on their jobs , while Johnson's present supervisor
did not care if Johnson took an extra 5 minutes during a break period To the extent
the testimony of McGovern and Hardy is at variance with that of Johnson , I credit
Johnson.
25 McGovern acknowledged having a conversation with Watkins , in the cafeteria , assert-
ing it was in the early part of December , but denied ever having met with Watkins and
Rejmenczak in the cafeteria . Later, McGovern acknowledged he did have a meeting in
the cafeteria with Watkins and Rejmenczak , asserting they requested him to join them.
However , McGovern placed the time of the meeting as early December 1964.
The confusion and self-conflicting statements of McGovern are illustrated by his recita-
tions relative to this meeting . Initially , McGovern asserted it was Watkins who raised
the question of profit sharing , asserting that Watkins stated he had heard that profit
sharing was going to be taken away and inquiring if this was true. McGovern asserted
that he responded that the people in the plant did not have profit sharing and whether
the employees would lose it or not was a matter that would have to be resolved over the
bargaining table.
Initially McGovern asserted : "The only conversation I had with Dave LWatkins] was
alone, and he asked me about profit-sharing." Subsequently , having recalled meeting
Watkins and Rejmenczak, in the cafeteria, McGovern asserted Watkins said • "Terry, tell
Dave Rejmenczak what you told me concerning the profit -sharing " McGovern then related
that Rejmenczak said: "There has been confusion with respect to what has been said at
these union meetings that Mr. Graczyk will get profit -sharing for the employees." Mc-
Govern asserted he responded : "All I know is that the people in the plant have not, people
in the office do. I don't know exactly what will happen . All I know is it is a bargain-
able issue " There is no evidence that profit sharing was ever mentioned at a union
meeting. The record is replete with evidence of supervisors calling to the attention of
these employees the fact that the plant unit did not have profit sharing.
McGovern asserted that Watkins asked him what advantage Watkins would have in
joining a union, to which McGovern asserted he responded he could not answer the ques-
tion in the manner Watkins wished . McGovern asserted that he pointed out to Watkins
that he ( Watkins ) had started as an office boy and had been promoted to an accounting
clerk. McGovern then inquired of Watkins , "Do you realize what happens in the plant,
that the job has to be posted, seniority is the governing factor, not ability?" McGovern
asserted the conversation terminated at that point.
McGovern denied having any other conversation with Watkins relative to this subject
matter, and denied the assertions of Watkins , including a flat denial of having made any
inquiry of Watkins as to what his stand on the union issue was. To the extent the testi-
mony of McGovern is at variance with that of Watkins and Rejmenczak , I credit the
latter two.
NATIONAL CAN CORPORATION 657
David Rejmenczak, employed as a clerk in the shipping office, credibly related
a conversation he had with McGovern in the private office of Pavett,26 in the
early part of January. Rejmenczak asserted that McGovern advised him to close
the door, then asked him why he was voting for the Union, and why he thought
the Union was good for the employees. Rejmenczak responded that he wanted a
union because he thought they would get more money and would have more job
security. McGovern advised Rejmenczak, "don't worry about that, there will be
more raises coming." Subsequently, because of an interruption by Pavett, at
McGovern's request, Rejmenczak met him in the cafeteria, at which time David
Watkins was also present. Rejmenczak related conversations with other supervi-
sory personnel, set forth infra and another conversation with McGovern during his
lunch period a day or two later. On the latter occasion, McGovern asked Rejmenc-
zak if he had thought over what McGovern had said to him, to which Rejmenczak
responded that he had not lost any sleep about it. McGovern again asked why
Rejmenczak wanted to vote for the Union, and Rejmenczak responded that he
wanted more money. McGovern then asked him what he would do without his
money if the Company went on strike. At this point Rejmenczak asserted that he
wanted to eat his lunch in peace and McGovern departed.27
4. Reginal I. Hardy
Threats and Promises
David Watkins credibly related that, in December 1964, about a week before
Christmas, about 7 p.m., Hardy, his supervisor, advised Watkins that it would
not be to his advantage if the Union was successful, that Watkins would probably
have to punch a timeclock, and the Respondent would probably be a little more
strict relative to demerits. According to Watkins, Hardy explained that with a
union each employee is given three chances, each time he does something wrong
it is placed in his record, and after three chances his employment is terminated.
Watkins acknowledged that Hardy asserted that this was the practice in the plant
under the union contract, and that if Watkins was in the Union "the same thing
would apply to me."
Watkins related a further conversation with Hardy, in early January 1965. Hardy
initiated the conversation, and advised Watkins he probably would never have been
hired if the Union had been in the office at that time, because they probably would
have picked someone with a little more experience for that particular job. Hardy
also advised him that if the Union was successful, the overtime would probably be
reduced, explaining that it was easier to grant overtime because the salaries were
not as high. Watkins acknowledged that Hardy advised him that at Maspeth, Long
Island, to which the union contract applied relative to clerical employees, promo-
26 Harry Pavett was identified as being in charge of the shipping department, by Mc-
Govern, and was Rejmenczak's supervisor.
n McGovern acknowledged talking to Rejmenczak relative to the Union and the election
McGovern initially asserted lie had only one conversation with Rejmenczak, which he
placed as being in December and, according to McGovern, occurred in Rejmenczak's work
area and not in Pavett's private office. McGovern asserted that Rejmenczak brought up
the question of the Union, advised McGovern that he had talked to his father, whom
Rejmenczak described as a union man who did not think that a union in the office was
good for the man who had an education, assertedly because improvements and promotions
are restricted and are not based on relative ability. McGovern denied asking Rejmenczak
why he was voting for the Union and specifically denied the other recitations of Rejmenczak
relative to the early January conversation or advising him there would be more raises com-
ing. Having first denied ever meeting in the cafeteria with Rejmenczak and Watkins,
McGovern subsequently acknowledged there was such a meeting but asserted it occurred
around the first 'of December. McGovern denied any luncheon conversation with
Rejmenczak.
To the extent the testimony of Rejmenczak is at variance with that of McGovern, I
credit Rejmenczak
243-084-67-vol. 159-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions were based on seniority and were not based on individual ability, explaining
that advancement came quicker for the individual on the basis of ability.28
David Rejmenczak credibly related that he had a conversation with Hardy, on
January 4, 1965, just before lunch, after his conversation with McGovern, set forth
supra. Rejmenczak's work area is in the shipping office, in the back of the build-
ing, while Hardy is located in the front office. Hardy stopped Rejmenczak, as
Rejmenczak was passing Hardy's desk, and inquired if either McGovern or Vieth
had, approached him about the Union. Rejmenczak responded that McGovern had
talked to him and had explained the Company's side. Hardy inquired if Rejmanc-
zak thought he would have obtained his promotion, from checker to shipping clerk,
if the Union had represented the employees. 'Hardy asserted that in such an event
promotions would have been on the basis of seniority. Hardy then mentioned some
of the fringe benefits which the clerical employees presently had, and might not
receive if the Union was successful, specifically profit-sharing and sick-pay benefits,
which Rejmenczak asserted were somewhat better than the plant employee benefits.
Rejmenczak acknowledged that Hardy stated that he did not know, for certain, but
thought the employees would not have profit sharing because the Union would not
28 Hardy acknowledged talking to employees who were eligible to vote prior to the elec-
tion, mostly those who were under his supervision. He acknowledged a December con-
versation with Watkins. Hardy asserted that the stipulation for a consent election had
been posted on a bulletin board near Watkins' work area, and that Watkins inquired as
to what the stipulation meant, which Hardy then explained, including the exclusion of the
engineering department employees. Hardy's version was, Watkins advised that he
(Watkins) had been discussing the matter with his father, "who is not in favor of unions,"
and Watkins volunteered that he was inclined to feel the same way Hardy asserted that
lie advised Watkins to get the facts on both sides and vote as the saw fit Hardy asserted
that Watkins inquired about advancements in the event that the Union was successful,
and' that he (Hardy ) responded that in such event advancements would be based on
seniority, "the person who had been there the longest gets the first choice at the job,
assuming he is qualified ," it is not necessarily based on merit Hardy acknowledged
advising Watkins, relative to promotions, that Hardy had hired several employees who
had started as office boys and who had advanced to accountants and supervisory positions,
while promotions would be based on seniority if the Union was successful
Hardy acknowledged telling Watkins that, if they had to pay $50 or $75 a month more
for an office boy, they would not have hired a green, inexperienced employee right out of
high school, but would have hired some one with experience.
Hardy asserted that Watkins inquired what would happen, relative to layoffs in the plant,
if the Union represented the clericals, and he responded that they had had substantial layoffs
in the plant, but had not had any office employees laid off because of plant layoffs
Hardy denied advising Watkins that he would probably have to punch a timeclock.
Hardy asserted that Watkins inquired if he would have to punch a clock if the Union
came in, and Hardy responded he did not know Hardy denied asserting Respondent
would be stricter in regard to demerits if the Union came in. Hardy, acknowledged advis-
ing Watkins, relative to job security, that he would have no more security with the Union
than without ; if a person did not do a good job, he would receive three warnings, and at
the end of the third warning an individual would be suspended automatically. Hardy
denied indicating that a more lenient system relative to demerits was in existence, and
denied that there was any conversation relative to overtime pay
Hardy acknowledged having a further conversation with Watkins, during the first week
in January, in Watkins' work area. Hardy asserted he asked Watkins if lie had all the
information and facts he needed, in order to make up his mind as to how he was going
to vote in the election, advising Watkins he would be glad, to answer any questions
Hardy asserted that Watkins advised him that he had pretty well made up his mind and
had no questions. Hardy denied any discussion of overtime pay on that occasion, or any
advice to Watkins that he would lose overtime pay if the Union was successful. One
answer of Hardy's is illuminating.
Q Did you ever say to Mr. Watkins that you don't punch a timeclock now but
if you are in the Union and working in the plant, you would have to punch the
timeclock?
A. Well, if you are in the Union, the plant union which we now have, he would
have to punch a time clock.
Immediately thereafter Hardy denied ever having made such a statement to Watkins
Hardy also denied making any reference to the existing Plant Master Agreement in either
conversation. To the extent the testimony of Hardy is at variance with that of Watkins,
I credit Watkins.
NATIONAL CAN CORPORATION 659
allow them to have profit sharing. Hardy also advised Rejmenczak that when the
Union came in that he would have to punch a timeclock and adhere to the allotted
time for break periods and lunch. Hardy suggested if Rejmenczak had any further
questions that he should confer either with Hardy, Vieth, or McGovern.
Rejmenczak asserted that he had a further conversation with Hardy on election
day. At that time, Hardy approached him and asked him if he had thought over
all the benefits the Company had to offer him, advising Rejmenczak that he might
not have profit sharing if the Union came in, that he would have to punch a time-
clock in the morning, that lunch periods would be strictly limited, as in the plant.
Hardy called Rejmenczak's attention to the fact that his hospitalization, sick pay,
and vacation benefits were presently better than those existing in the plant. Hardy
advised Rejmenczak that he could vote any way he wanted to, that his future was
in his hands and "don't hinder it in any way." He also advised Rejmenczak that
the Company's hands were tied because the Union was trying to get in, "But, give
us time." 29
Finding no evidence that Hardy made any promise of economic benefits, or other
benefits, as alleged in paragraph 7 of the complaint, as amended , I will recommend
dismissal of those allegations.
5. Fehrmann
Threats and Promises
Ronald J. Budrik credibly related that he had a conversation with Plant Manager
Fehrmann, on January 14, 1965, in the machine shop office. Budrik related that
Fehrmann. advised that he wanted to talk to Budrik about, the election, that he
could not tell Budrik how to vote, but would like to tell him how Fehrmann felt
the Company could do more for Budrik than the Union could, that Fehrmann
would like Budrik to give the Company a chance, and that they could always peti-
tion for another election in a year's time. Fehrmann asserted .that he would like
Budrik to afford the Respondent an opportunity to prove itself to the employees.
Budrik asserted they got into a conversation about overtime and workload in the
office, that Fehrmann asserted that he could not arrange any overtime right then,
because of the budget situation, that he would try to work it out another way.
Fehrmann then inquired if Budrik desired to go back to the corporate engineering
staff, which Budrik asserted he declined. Budrik asserted that Fehrmann stated
that Fehrmann thought Budrik could do more himself without a union than he
could with a union. Budrik acknowledged that Fehrmann asserted that he would
lose a certain amount of individuality with the Union. Budrik asserted that Fehr-
mann did not state what the Company would do for the office employees without
a union, rather Fehrmann asserted that everyone had certain gripes and suggested
that the Company be given a year or two to resolve these.
Fehrmann acknowledged having a conversation with Budrik, prior to the election,
at which Ray Smith, master mechanic, was present. Fehrmann acknowledged that
he advised Budrik that Fehrmann did not believe that the Union could obtain more
pay or better benefits for him at that time, that Budrik had just been moved into
his present job as a trainee out of the engineering office, and that he would have to
wait his time to get a raise as he was in a training program. Fehrmann asserted
that he did not make any promise that Budrik would receive a raise. Fehrmann
asserted that Budrik inquired if he could obtain overtime and Fehrmann advised
him they could not grant overtime at that time. Fehrmann advised Budrik that
after he had finished his training program he thought the only way Budrik could
obtain a raise would be if he went back to the engineering office. Fehrmann
21 Hardy acknowledged that Rejmenczak's supervisor was Pavett during the period with
which we are concerned. Hardy acknowledged having two conversations with Rejnienczak,
both in January prior to the election. Hardy asserted that he inquired it Rejmenczak had
any question in connection with the union matter, whether he had all the facts and data
he needed in order to vote, and advised Rejmenczak he would be glad to answer any ques-
tions Rejmenczak might have. Hardy denied inquiring if any member of management had
talked to Rejmenczak relative to the Union, denied that there was any discussion of
profit sharing, benefits, or promotions" `Hardy, denied Rejmenczak's assertions relative to
the loss of profit a haring,-benefits,' timeclocks, etc. Hardy denied having a conversation
with Rejmenczak on the day of the election, and denied advising Rejmenczak that he had
profit shai1ing and benefits, that -lie had his future in his hands, and he should not rain it
in ariy way. Where'the testimony 'of Hardy is at variance with 'that of Rejmenczak, I'
credit Rejmenczak.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acknowledged that he advised Budrik if he had an individual grievance, under a
union contract he could not act as an individual but would have to go through a
union steward or committeeman.
I find no evidence of an alleged threat or promise of benefit in the testimony
of either Budrik or Fehrmann, relative to their conversation.
David Watkins related that he had a conversation with Fehrmann, on the after-
noon of January 15, 1965, prior to the vote, at which Bob Lucas was present.
Watkins asserted that Fehrmann advised Watkins of Fehrmann's experience as a
member of a union, of Fehrmann's having been on strike, and of his having had
an unpleasant financial experience as a result. Watkins asserted that Fehrmann
stated that Fehrmann did not think the Union could do anything for the office peo-
ple that the Company was not already doing or could do. Watkins related, "He
(Fehrmann) said as of now, he was going to try to increase their lunch period by
15 minutes or break-it was the lunch period. He said that this would probably
take a while." Watkins asserted Fehrmann stated that if the employees would give
him a year this would provide him with the time needed "to try to see what I can
do." Watkins denied having requested a longer lunch period.
Fehrmann acknowledged having a conversation with Watkins, at which Lucas
was present, a day or two before the election. It was Fehrmann's memory that
Watkins was one of the employees who had been reprimanded for spending too
much time in the cafeteria, and asserted on this particular occasion Watkins inquired
why they would not extend the lunch hour 15 minutes. Fehrmann acknowledged
stating that he would look into the matter, but denied indicating any promise of a
longer lunch hour. Fehrmann acknowledged elaborating on his prior experience as
a member of a union . Fehrmann acknowledged stating, "Well, just give the com-
pany the same privilege of a year's time to see what can happen," but asserted he
made no promise of any benefits. Fehrmann also asserted that he indicated that if
they were not happy with what the Company was doing for them they would have
the privilege of having another election at the end of the year. Fehrmann ac-
knowledged advising Watkins that he did not think that the Union could do anything
for the office people that the Company wasn't already doing or could do.
I find implausible Watkins' assertion that he made no request for a longer lunch
period, yet Fehrmann, in effect, promised such action. There is a total absence of
evidence of promises of economic and other benefits, by supervisory personnel,
herein, except in this one instance. There is no evidence of Fehrmann having
threatened any employees. Interrogation; by Fehrmann, is not alleged. Accord-
ingly, I will recommend dismissal of those allegations of paragraphs 6 and 7 of
the complaint, as amended, which relate to Fehrmann.so
6. McGovern
Postelection Interrogation
The election herein was held on Friday, January 15, 1965. On the following
Monday or Tuesday, McGovern again called Rejmenczak into Pavett's private
office where McGovern advised Rejmenczak that he knew that Rejmenczak had
voted for the Union. Rejmenczak inquired as to how he found out. McGovern
responded he had "his ways." McGovern then asked him if he knew who else had
voted for the Union. Rejmenczak responded that he did not, but he thought it
was a private election. McGovern then asked Rejmenczak who were the instiga-
tors behind the Union, to which Rejmenczak responded, that he had only been
employed a short while and did not know the individual's names. McGovern then
asked him if he knew anyone in production control and he responded there were
a few. Upon interruption, by other employees, McGovern advised Rejmenczak
that what he told Rejmenczak was to be in strict confidence and no one else would
know about it. Rejmenczak acknowledged that he had advised McGovern that it
was Stanley Lawrence, president of the plant union, who first approached him. He
acknowledged having admitted to McGovern that he had in fact voted in favor
of the Union31
301 find George V. Kuaaman, Jr., d/b/a Gulfport Transport Company, 84 NLRB 613,
cited by General Counsel Inapposite . In that case the Board found a promise of better
working conditions stated as an alternative to union affiliation.
az McGovern denied any conversation with Rejmenczak after the election , or making
the inquiries attributed to him by Rejmenczak . On this conflict I credit Rejmenczak.
NATIONAL CAN CORPORATION 661
7. Contentions of the parties and concluding findings
a. Surveillance
Respondent correctly notes that this alleged event preceded the filing of the
Union's petition for election, by 11 days. Accordingly, it is considered solely in
the context of being violative of the provisions of Section 8(a)(1) of the Act, as
distinguished from those events, which occurred in the period between the date of
the filing of the petition for election and the date of the election, and which are
the basis for setting the election aside, considered infra.
Respondent contends that the incident did not occur, as related by Jaros, as dis-
tinguished from any contention that if the event did occur, as related, it was not
violative of the Act.
In numerous cases the Board has found the solicitation of an employee to engage
in surveillance and report to management concerning union activities of employees,
in meetings and elsewhere, constitutes interference, restraint, and coercion, and is
violative of Section 8(a)(1).32 I find accordingly.
b. Interrogation and threats-October 26 , 1964, to January 15, 1965
Respondent would characterize the interrogation , set forth supra, as innocuous,
isolated, and not calculated to coerce anyone. I do not agree.
Respondent correctly asserts, as the Board has stated , that not all questioning
of an employee which relates to a union or an election is per se unlawful , and that
what the law proscribes is not interrogation , but interference , restraint , and coercion.
General Counsel correctly asserts that the interrogation herein is manifestly out-
side the area of inquiry permitted under the rules established by the Board in the
Blue Flash case.33 In the Blue Flash case , unlike the present case, the Board found
an absence of threats of reprisals or promises of benefit . More importantly, the
Board found that respondent had a legitimate reason for inquiry as to the union's
representation concerning its majority status , that respondent undertook the essen-
tial safeguards of assuring the employees there would be no resort to 'economic
reprisals, and respondent , therein, confined itself to ascertaining the validity of the
union 's representations.
The Board has said : "The purpose of interrogation is not to express views, but
to ascertain those of the person interrogated. . . . As recently stated by the Fifth
Circuit, `Coercion by interrogation is one of the "subtler" forms of management's
interference with labor 's protected rights.' " Cannon Electric Company, 151 NLRB
1465, 1469-70, citing N.L.R.B . v. Camco, Inc., 340 F.2d 803, 804 (C.A. 5).
In Johnnie 's Poultry case ,34 after setting forth the two types of situations which
the Board and courts have held permit legitimate inquiry, i .e., verification of the
union's claim of majority status or investigation of facts, essential in preparing an
employer's defense, for the trial of a case, the Board said:
. The Board and courts have established specific safeguards designed to
minimize the coercive impact of such employer interrogation . Thus, the
employer must communicate to the employee the purpose of the questioning,
assure him that no reprisal will take place, and obtain his participation on a
voluntary basis; the questioning must occur in a context free from employer
hostility to union organization and must not be itself coercive in nature; and
the questions must not exceed the necessities of the legitimate purpose by pry-
ing into other union matters , eliciting information concerning an employee's
subjective state of mind , or otherwise interfering with statutory rights of
employees . When an employer transgresses the boundaries of these safeguards,
he loses the benefits of the privilege.
General Counsel correctly characterizes as "A systematic pattern of coercive con-
duct" the activity of Respondent 's supervisory personnel in calling employees into
closed offices , to interrogate them as to their union sentiment and their knowledge
of the sentiment of other employees in the bargaining unit. Not only was there
73 See e g. Morrison Cafeterias Consolidated, Inc, and Morrison Cafeteria Company of
Little Rock, Inc., 148 NLRB 139; The Colson Corporation, 148 NLRB 827; Sweetwater
Rug Company, 148 NLRB 498, 507.
33 Blue Flash Express, Inc., 109 NLRB 591.
34 Johnnie's Poultry Co., 146 NLRB 770, 775.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a failure to assure these employees that there would be no reprisals, but to the
contrary the employees were advised of the reprisals which would ensue, if the
Union was successful in its effort. I so find.
Respondent asserts that the so-called threats relative to discontinuance of profit
sharing, strict enforcement of coffee breaks and lunch periods, installation of a
timeclock, etc., must be viewed in the light of the fact that "The major topics of
discussion amongst employees during the preelection period was a comparison of
conditions existing for the unionized production and maintenance employees with
the conditions existing for the office clerical staff." I disagree on both points. It
is undoubtedly true that Vieth, McGovern, Gorzynski, and Hardy sought to empha-
size some conditions which the office and plant clerical employees had, which were
not applicable to those covered under the P & M unit employees. The question is
whether the interrogation exceeded permissible limits and whether the so-called com-
parison of conditions were expressed in the form of threats of withdrawal or loss
of existing working conditions or imposition or less desirable conditions.
Respondent characterizes as "typical" of the discussions by supervisory personnel
with employees, during the preelection period, as a comparison of conditions exist-
ing for the P & M employees with the conditions existing for the office and plant
clericals, Vieth's assertions relative to his conversation with Janetzke, "I discussed
with him what he had now as an employee. . . I discussed about his insurance
plan, profit-sharing, pension plan, these things he had now and what the union was
offering him under their. . . I compared the master agreement, what the master
agreement called for and these things that he already had." Respondent asserts
that by reason of article III, "Union Recognition," that the Master Agreement was
applicable to any new unit certified by the Board or recognized by Respondent dur-
ing the life of the agreement. To the extent this statement implies the Master
Agreement covers all working conditions it is, at best, incomplete, if not inaccurate,
as next set forth.
John Strohecker, corporate manager of industrial relations acknowledged the
existence of a number of supplemental agreements, covering particular more favor-
able conditions in various plants, which were continued at the time the initial Master
Agreemeit was entered into, and at all times thereafter, or placed in effect upon
later recognition, as specifically provided for 'under article XVII, "Local Settle-
ments, Customs, and Practices." 35 Strohecker enumerated local seniority riles,
holidays, rate retention practices, variations in vacation plans, and shift differentials,
as among items covered under such supplemental agreements. Strohecker acknowl-
edged that the purpose of the local supplemental agreements were to reserve pre-
viously existing benefits, which were greater than those provided for in a master
agreement which was applicable to all plants.
General Counsel correctly asserts that Respondent asserts no defense, and in fact
a false posture, in contending that it was merely comparing existing working con-
ditions with the working conditions of the P & M unit, as set forth in the Master
Agreement, in view of the local supplements and in view of the absence of any pro-
vision for the elimination of the items which were the subject matter of the com-
parisons. However, we are not passing on the accuracy or inaccuracy of a repre-
sentation. The test is whether a particular assertion, in context, is a threat and
may thus be found to interfere, restrain, and coerce. The Board has stated that
it is no defense to a 8 (a) (1) charge that Respondent may have acted in good faith
in portraying economic consequences to employees. It is the inherent tendency to
interfere with, restrain, or coerce the employees in the exercise of their nghts,
guaranteed in Section 7, rather than Respondent's motives, that is controlling.
Freeport Marble and Tile Co., Inc., 153 NLRB 810.36
General Counsel acknowledges that some of the supervisors couched the state-
ment of loss of existing benefits in terms of "possibility" and not as an express,
as Article XVII provides , inter alia•
Section 2. Established local customs or practices, written or oral, which are cur-
rently in effect and are neither covered by nor in conflict with this Agreement shall
continue in effect for the term of this Agreement
Section 3: Established local customs or practices, written or oral, which are cur-
rently in effect and provide benefits in addition to or in excess of those provided in
this Agreement shall continue in effect for the term of this Agreement, unless modi-
fied or eliminated by mutual agreement
36 Citing N.L.R B. v. Burnvp & Sims, Inc , 379 U.S. 21 ; N.L R B. v. Erie Resistor Corp ,
373 U S. 221.
NATIONAL CAN CORPORATION 663
overt, threat. In the Nabors case 37 the court said: "As to statements made by
respondent, . . . as to the consequence which might follow adherence to a union:
When statements such as these are made by one who is part of the company man-
agement, and who has the power to change prophecies into realities, such statements,
whether couched in languange of probability or certainty, tend to impede and
coerce employees in their right to self-organization, and therefore constitute unfair
labor practices."
General Counsel correctly asserts that the constant and repeated pattern, by the
supervisors named, of the introduction of more stringent work rules, relative to
break and lunch periods, installation of timeclocks, third party interference in
grievances, etc., was a "clear warning and threat to the employees that the easy
'going camaraderie between management and the employees, with the attendant
benevolence of Respondent in applying rules and regulating the working conditions
of the employees, would be a thing of the past if the Union organized [their office
employees]. Such threat[s], though general in nature, [were] reasonably calcu-
lated to discourage further union-activity, and therefore constitute a violation of
Section 8(a)(1)." Shell Oil Company, 95 NLRB 102, 108.
I concur in General Counsel's assertion that the Board has found where the
statements made, by supervisors, disclose a course of action designed to create and
instill in the minds of employees a fear of economic suffering and loss of benefits,
as a result of selecting the union, such campaign propaganda is not protected by
Section 8(c), since it is at best a thinly veiled threat of reprisal, and violative of
Section 8(a)(1). See Louisiana Manufacturing Company, 152 NLRB 1301, and
cases cited in footnotes 2 and 3.
I have found that: McGovern threatened Kufrovich with possible job elimina-
tion; Vieth McGovern, and Hardy threatened named employees with loss of profit
sharing, strictly limited lunch and break periods, the necessity of having to punch
a timeclock, limitations on promotions, modification of existing overtime, installa-
tion of a system of demerits, installation of less advantageous hospitalization and
sick pay plans, all of which would or might insue in the event they exercised their
right to select the Union as their representative. The Board has stated: "If
Respondent did not wish the employees to be concerned with these possibilities
there was no need to raise them in the first place. Having sounded the alarm,
Respondent cannot so easily avoid the effect of its words." Brownwood Manu-
facturing Company, 149 NLRB 921, 924.
Accordingly, I find the interrogation of employees Keslin, Budrik, R. Johnson,
Janetzke, Jokolis, Watkins, Rejmenczak, Wheeler, and Jaros, by Vieth, McGovern,
Gorzynski, and Hardy, to the extent found hereinabove, and the threats enunciated
by said supervisors to said employees, and to Kufrovich, as found hereinabove, are
in each instance conduct constituting interference, restraint, and coercion, and thus,
violative of Section 8(a)(1) of the Act.38
c. Postelection conduct
I have found that on Monday or Tuesday, January 18 or 19, 1965, McGovern
interrogated Rejmenczak, advising that, 'McGovern knew that Rejmenczak' had
voted for the Union, inquiring as to whether -Rejmenczak knew of others who
voted for the Union, and inquiring as to who were the instigators behind the Union.
It is undisputed that this conduct cannot be considered relative to the question
of setting aside the election, since it occurred after the critical period.
I find McGovern's interrogation of Rejmenczak constituted interference, restraint,
and coercion and was violative of the provisions of Section 8(a)(1) of the Act.
In arriving at my findings of credibility, I have considered all the testimony, the
demeanor of the witnesses, the interest of each witness in the outcome of the liti-
gation, the fact that some present employees, including a supervisor, gave testimony
at variance with that of their present supervisor, candor or lack thereof, self-
contradictions and inconsistencies, and the plausibility of recitations.
C. The alleged refusal to bargain
The issues are as follows: (1) Whether the Union' s request for bargaining and
recognition, by letter dated October 23, 1964, was an adequate request ; in par-
37 N.L.R B. v. Nabors Co, 196 F.2d 272 , 276 (C.A. 5).
33 Sakrete of Northern California, Inc., 140 NLRB 765 ; Burke Golf Equipment Corpora-
tion, 127'NLRB 241.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticular, whether it described an appropriate unit with sufficient particularity; (2)
whether the Union did in fact, represent a majority of the employees in an appro-
priate unit, on October 23, 1964, the date of its request for recognition , and at all
times thereafter; (3) whether the Union requested recognition and bargaining in
the "smaller" unit on December 7, 1964, and whether the Union did, in fact,
represent a majority of the employees in an appropriate unit, on December 7,
1964, and (4) whether Respondent engaged in unfair labor practices, subsequent
to the Union's requests for recognition, calculated to destroy the Union's majority,
and if so, whether this conduct negates an assertion, by Respondent, of a good-
faith doubt as to the Union's majority, and warrants a refusal-to-bargain order.
1. The appropriate units and the sufficiency of the Union's
requests for recognition
Concededly, two units are alleged, in the alternative, as appropriate units, for
reasons explicated infra. General Counsel contends that the Union's request for
recognition and bargaining of October 23, 1964, encompassed what is referred to
in the record and briefs, as the "smaller" unit, as well as the "larger" unit.
Respondent asserts that there is a substantial variation between the two units, and
that the "larger" unit is not an appropriate unit. Respondent also contends that
the Union's demand, of October 23, did not describe an appropriate unit with
sufficient particularity. It is. undisputed that the parties agreed, on December 7,
1964, that the "smaller" unit was an appropriate unit.
The Union's letter on October 23, 1964, addressed to Fehrmann, plant manager
of the Cleating Plant, reads as follows:
On behalf of the employees of the National Can Company, Inc., I am
hereby giving you notice that a majority of said employees have signed Union
cards authorizing the United Steelworkers of America, AFL-CIO, to act as
their bargaining agent.
I am, therefore, giving you notice that the Union is willing to present these
cards to a neutral party at an agreed upon time and place to establish our
claim that we do in fact represent a majority of National Can Company
employees.
The bargaining unit which we claim to represent are all office and factory
clerical employees at the Clearing Plant of National Can Company, 5620 W.
51st Street, Chicago, Illinois, but excluding all production and maintenance
employees, cafeteria employees, guards, personnel department employees and
all supervisory employees as defined in the Act.
It is important that the Union knows at once of the Company' s position
on this matter; and, I am, therefore, requesting a response by you to this
matter by return mail.
Thanking you in advance for your prompt attention to this matter, I remain.
It is undisputed that the letter was received, by Respondent on Monday, Octo-
ber 26 , 1964, and there was no response to the request. John Strohecker, corpo-
rate manager of industrial relations , at all times material herein , acknowledged that
his office formulates labor policy for Respondent, and that it was Respondent's
policy not to recognize the Union without an election . This policy preceded
Strohecker's assumption of his present duties and was in effect in October 1964.
Strohecker asserted that he was not aware of any instance in which Respondent
has ever recognized the Union on the basis of a card check39
On October 26, 1964, a petition for certification was filed, Case 13-RC-10399,
in which the appropriate unit was described as follows:
All office employees plant clerical employees employed by the employer at its
plant located at 5620 West 51st Street, Chicago 38, Ill., excluded production
and maintenance employees, cafeteria employees, confidential employees,
guards and supervisors as defined in the Act. The number of employees was
described as 45.
A copy of the petition was served on Respondent, on October 27, 1964.
391 find of no consequence Strohecker ' s assertion that in at least seven instances in
which the Union sought to represent employees in units in different plants of Respondent,
where it did not respond to the demand letter , the Union 's representation was found to be
inaccurate as the result of subsequent election . JM. Machinery Corporation , 155 NLRB
860.
NATIONAL CAN CORPORATION 665
At the time of the representation hearing, on December 7, 1964, the parties
entered into a stipulation for certification upon consent election in which the
petition was amended to provide for an agreed-upon appropriate unit, as follows:
All office clerical employees and all plant clerical employees at Employer's
plant located at 5620 West 51st Street, Chicago, Illinois, excluding production
and maintenance employees, cafeteria employees, Corporate Engineering
Department, Corporate Industrial Engineering Department, Area Quality
Control employees, professional employees, confidential employees having
access to labor relations data, guards, and supervisors as defined in the Act.
It is undisputed that the unit agreed to, on December 7, 1964, comprised a total
of 40 clerical employees By agreement, Jaros was excluded as a confidential
employee, and Kufrovich was included, both being employed in the personnel
office. It is undisputed that some factory clerical employees were in the P & M
unit, represented by the Union, being approximately five or six in number, includ-
ing two timekeepers, one shipping and one receiving clerk, and one or two inven-
tory clerks.
It is undisputed that among these found eligible, by agreement of the parties,
were nine clerical employees in a district sales office,40 which serviced several
plants,41 and who are under the supervision of the sales office manager, Gorzynski.
Also physically located at the Clearing Plant, at all times material herein, were
the Corporate Engineering Department, the Corporate Industrial Engineering
Department, and the Area Quality Control Office. However, in November 1964, it
is undisputed, Respondent announced, in a house organ, a contemplated move of
these three departments to a new executive office, some distance from the Clearing
Plant 42 This transfer was actually effectuated in April 1965. It appears undis-
puted that, in contemplation of this physical transfer away from the Clearing Plant,
the parties agreed, on December 7, 1964, to the elimination of the clerical employ-
ees in the three named departments from the agreed-upon unit. It appears there
were, at most, four clerical employees in these three departments.43 The other 15
employees in these three departments are identified by name and classification, as
draftsmen, design layout men, project engineers, electric project engineers, staff indus-
trial engineers, corporate material handling engineer, and one checker, and insofar as
this record reveals, it is inferred, are either professional or technical employees.
Strohecker acknowledged that the benefit structure, including holidays, vacations,
insurance, and pension participation were available to all salaried employees of
Respondent, wherever located or however classified.44 It is .undisputed that the
merit review program and the profit-sharing program were the same for all the
employees here considered. There was no evidence of a variation in the working
conditions between the three corporatewide departments and the sales office, and
other than starting and quitting time, no evidence of variations in working condi-
tions between the three corporate departments and the other clerical employees
included in the agreed-upon unit.
4o Courtney, Doherty, Fleish, Gottalner, Lillian Johnson, Kowaliski, Krueger, Luthin,
and Warner
41 Strohecker explained that a number of plants have district sales offices, for con-
venience, that each services a certain district such as the Atlantic area, has North Atlantic
and South Atlantic districts The district sales office at Clearing covers the Chicago area
(in which three plants are located) and Wisconsin.
43 In part the item is: "Our company will move its executive offices to accommodate
its continuing growth . . The building . . is being completely renovated for
occupancy by January 1, 1905."
43 Respondent's list of those employed, in these three departments, by classification, in-
cludes. Rose Polichem, secretary to Vincent Trunde, manager of Corporate Industrial
Engineering ; Susan Prickler, secretary to the area manager of Quality Control, Vincent
Cahill, blueprint operator, and Gerald Gagel, engineering clerk Dorothy Strelicky, sec-
retary to the manager of Corporate Engineering, is also listed Strohecker asserted only
Prickler and Polichem were clericals. He did not explain the exclusion of Strelicky.
However, the status of Cahill and Gagel, as clerical employees, is considered infra,
section C, 2, b.
44 While Strohecker was uncertain, he asserted his belief that the three excluded depart-
ments, corporate engineering, corporate industrial engineering, and area quality control,
had the same starting and quitting time as the sales office, 8: 30 a in. until 5 p in , while
the other clericals worked from 8 am until 4 . 30 p in
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilbert Feldman, attorney for the Petitioner and Charging Party, credibly related
the events which occurred on December 7, 1964, which concluded with a consent-
election agreement. Feldman asserted that Shawe, counsel for Respondent,
advised Respondent would not consent to an election unless the three corporate
departments were excluded from the proposed unit, giving as his reason the fact
that Respondent, for some time, had contemplated the physical removal of these
departments to a new executive office some distance from the Clearing Plant.45
After obtaining a list of the classifications in the excluded departments from
Respondent, Feldman related he checked the authorization cards, then advised
Respondent, "We have counted our cards, and whether you include a unit before
the transfer or after the transfer, in either case we have a majority of cards from
the people who would be included." Feldman related that Shawe responded, "Well,
we are going to see about that." 46
Contentions of the Parties and Findings
Respondent urges the inclusion of the three corporate departments, in the
Union's request, requires a finding that the unit sought is inappropriate. Respond-
ent relies upon the Board finding in Youngstown Sheet and Tube Company, 132
NLRB 682. I disagree.
In the Youngstown case the Board severed, by deletion, a classification of "buyer
clerks" who had been physically transferred from a plant location to a companywide
office building. More germane is the fact, as stated therein, that their physical loca-
tion "was the controlling circumstance by which the original scope and composition
of the unit was determined...." Citing: Youngstown Sheet and Tube Company,
56 NLRB 559.
General Counsel correctly distinguishes significant steps previously taken to
effectuate a transfer at a fixed future date, found in Whiting Milk Corporation, 137
NLRB 1143, from an indefinite prospect that payroll department employees may be
moved to another plant, the latter found to be an insufficient basis for exclusion.
Republic Steel Corporation, 91 NLRB 904, 908 .47
Respondent urges that, on December 7, 1964, when the Union asserted it sought
to represent "all unrepresented white collar workers," Respondent apprised the Union
that the three corporate departments had been housed at Clearing because of lack
of corporate office space and were in the process of being relocated. This was
obviously long after the request for recognition, of October 23, and does not con-
stitute a basis for finding the unit requested inappropriate, for the reasons stated
supra.
Respondent asserts the Union sought to represent "all unrepresented white collar
workers" in the three departments, thus a unit of 60 employees, on December 7,
1964. The Union's letter of October 23 specified "all office and factory clerical
employees ." I find no merit in the contention that the Union sought to include
professional and technical employees.
During the hearing, Respondent asserted the Union's demand was unclear and
confusing because the Union represented some factory clerical employees in the
P & M unit. I have found supra, five or six in this category were admittedly in
the P & M unit . I find no merit in this contention , in view of the stated exclusions
in the Union's October 23 letter, and the evidence relative to the classifications of
these employees.
I find that the unit in which the Union requested recognition on October 23,
1964, of "all office and plant clerical employees," with stated exclusions, is an
appropriate unit. Youngstown Sheet and Tube Company, 56 NLRB 559. In so
finding I am mindful of Respondent 's admitted failure to respond to the Union's
demand and the subsequent December 7, 1964 , agreement.48
4 This fact is undisputed , and was advanced by Respondent as a basis for a finding
that the unit requested was inappropriate
48I do not credit the denials of this testimony by Shawe and Strohecker nor their testi-
mony that, on December 7, Graczyk indicated that the Union was seeking both professional
and technical employees in the excluded departments In this connection it is noted that
while Shawe asserted that he was advised that the Union was seeking all of the classifica-
tions in project engineering, McGovern could not recall any discussion of project engineers
44 See also: National Car Rental Company, 141 NLRB 1086, Tide Water Associated Oil
Company, 107 NLRB 39
11 Cf. Ainsworth Manufacturing Company, 131 NLRB 273, footnote 1.
NATIONAL CAN CORPORATION 667
I find that the unit described in the Union's letter of October 23, 1964, was of
sufficient particularity as to apprise Respondent of the unit the Union sought to
represent, and was not, as contended by Respondent, ambiguous.
I further find, for reasons explicated infra, that the variance between the descrip-
tion of the unit, as set forth in the Union's letter of October 23, 1964, encompass-
ing 44 employees, and that agreed upon by the parties, on December 7, 1964, in
which the election was conducted, encompassing 40 employees, does not constitute a
substantial variance 49
I further find that on December 7, 1964, Union Attorney Gilbert Feldman, then
engaged in representing the Union,50 requested recognition of the Union in the
"smaller" unit,51 and that said demand was a new and separate demand 52
2. Majority status of the Union
a. The smaller unit
It is undisputed that the parties agreed, on December 7, 1964, that a unit of
office and plant clerical employees, including area sales office clerical employees, all
located at the Clearing Plant, with stated exclusions, was an appropriate unit. It is
undisputed that this unit comprised a total of 40 employees. It is undisputed that
22 of these employees signed union authorization cards, under circumstances next
considered, on or before October 23, 1964. I find, on the credible testimony of
Graczyk, that he had possession of all of the cards enumerated herein, prior to his
forwarding the Union's letter of October 23, 1964, to Respondent. A majority of
the number in the smaller unit is 21.
All of the authorization cards were identical and read as follows:
I hereby request and accept membership in the UNITED STEELWORKERS
OF AMERICA, (AFL-CIO), and of my own free will hereby authorize the
UNITED STEELWORKERS OF AMERICA, its agents or representatives, to
act for me as a collective bargaining agency in all matters pertaining to rates
of pay, wages, hours of employment, or other conditions or employment and to
enter contracts with my employer covering such matters, including contracts
which may require the continuance of my membership in the UNITED STEEL-
WORKERS OF AMERICA as a condition of my continuing employment.
It is undisputed that 16 authorization cards were signed on October 22, 1964, by
employees later acknowledged to be eligible to vote in the election at a meeting at
the home of Frank Malone, identified as a member of the P & M unit53 Graczyk
asserted that he explained the purpose of the authorization cards was to enable him
to write a letter to Respondent requesting recognition. At the same time, it is
undisputed these employees signed dues-checkoff cards. Graczyk's assertions were
corroborated by a substantial number of those who were present at the meeting,
substantially all of whom acknowledged reading the cards before signing them.
While Graczyk denied saying anything about a Board election, at the meeting of
October 22, 1964, I find, from the testimony of those present, that he did state that
if the Company failed to grant recognition, that the cards were a means,of request-
ing a Board election.54
4B Laabs, Inc., 128 NLRB 374; Kickert Brothers Ford, Inc., 129 NLRB 1316, 1321, The
Hamilton Plastic Molding Company, 135 NLRB 371, 373
5° See WGOK, Inc., 152 NLRB 959 (TXD)
1Barney'8 Supercenter, Inc, 128 NLRB 1325, 1327, enfd. 296 F.2d 91 (C.A. 3).
52 Cumberland Shoe Corporation, 156 NLRB 1130.
53These employees are identified as Armstrong, Began, Borysck, Budrik, Grzetich,
Janetzke, Richard Johnson, Keslin, Paholski, Rejmenczak, Rutherford, Sitar, Swains,
Wash, Watkins, and Wheeler.
5° The Respondent's effort to establish that the employees were promised a waiver of
initiation fees, as an inducement to sign the cards, I find fruitless The sole exception to
the testimony given by the bulk of the witnesses who attended the October 22 meeting was
James Armstrong, who first asserted that Graczyk asserted the purpose of signing the
card was to obtain an NLRB election. Armstrong was then -unable to relate what Graczyk
had said relative to an election Armstrong then asserted, "That both the cards would
be mailed registered mail to the NLRB, that a'letter would also be mailed registered mail
to the National Can Corporation " Subsequently, Armstrong asserted that he did not
remember what was said. I do not credit Armstrong's testimony to the extent that it
is at variance with that of the other employees present at the meeting, relative to Graczyk's
statements at that time.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Six additional union authorization cards were signed on October 23,.1964, by
employees Jokolis, Kufrovich, Flood, Grigaitis, Lillian Johnson, and Hill. The cir-
cumstances of these signings are next considered.
Jokolis received the card from Janetzke, read it before signing it and returned it
to Janetzke. Jokolis asserted that Janetzke advised her that the purpose of the card
was to enable the Union to write a letter to the Company requesting recognition.
She also asserted she had been in the plant union previously and relied on this prior
knowledge in signing the card.
Kufrovich stated that she attended the meeting of October 22, heard Graczyk
state that he would send a letter to Respondent requesting that the Union be recog-
nized . Kufrovich asserted that there was an insufficient number of cards at the
meeting, and for this reason she signed a card on the following day.
John Grigaitis related that he signed his card at the plant, on October 23, 1964.
The card was given to him by a male employee whom he could not identify since
he had been initially hired, by Respondent, on October 13, 1964. He had not
attended any union meetings . Grigaitis asserted that there had been a meeting the
day before, which he was unable to attend, and that he was told the main thing
that happened was that they passed out cards to have them signed. Asked what he
was told relative to the card, by the solicitor, prior to signing it, Grigaitis responded
that he was told, variously, "(1) He told me if a majority of the workers signed
the cards, the Company would be notified that the workers have an election; and
(2) people in the office wanted to have a union . They told me that I would have
to sign the card to get a petition to the Company notifying the Company that the
people wanted a union."
The union authorization card of Flood was obtained by Janetzke, under circum-
stances on which the evidence is in dispute. Both were employed by Respondent
at the time of their testimony. Janetzke, whom I find a credible witness, asserted
that he and Flood went to lunch, at which time Janetzke advised Flood that a
letter would be sent to the Company stating that a majority of the employees had
signed cards and wished a union to represent them. Janetzke then asserted the
Company would probably not even answer the letter and they would probably go
to an election . It is undisputed that Flood, after reading the card, and after a
lengthy conversation relative to the Union, signed the card and returned it to
Janetzke.55
55 Flood acknowledged reading the cards and questioning Janetzke relative to their pur-
pose, before signing them. Flood's testimony in part was :
Q. Now can you tell us what Mr. Janetzke said to you from the time you left the
plant till the time you signed the cards 9
A I don't remember what all went on, for when I got there and read the card
over I asked him-because this specifically states, one of them specifically states that
I authorized the Union to withhold dues. The others specifically states that I au-
thorized bargaining rights and I questioned him on that and he said no, these cards
were for a petition for election, along those lines. There would be an election after
these -cards.
Q. Now, when you received both these documents [cards] from Mr. Janetzke, what,
if anything, did you do next or say then?
A. I read them over lightly. I didn't-and got the main idea of what they stated and
questioned him on several ideas.
Q When you say you questioned him, please tell us what your question was and what
he replied?
A. I replied to him I couldn't sign any cards stated as such.
Q Did you indicate why?
A. Yes, because I told him I could not sign a card if-without first knowing where
I was going, what we were getting into. In other words, I wanted to know more
about the Union before I authorized him to actually do this. Represent me
Q. When you mentioned this, what did he reply?
A. He replied this was for election purposes.
Q. For election purposes or primarily election
A Primarily a petition for election.
Q. Did you ask Mr. Janetzke any other questions"
A. No, I did not.
Q Was there anything else said before you signed the card
A. Not that I remember.
NATIONAL CAN CORPORATION 669
It is undisputed that Janetzke, on October 23, 1964, gave union authorization
cards to Kathleen Hill, for Hill and Lillian Johnson, at lunchtime. The evidence
relative to the representations of Janetzke is in dispute. Both were employed by
Respondent at the time of their testimony. It is undisputed that the cards were
the meeting on October 22. The following day, at his desk Hill asked Janetzke
related that Hill advised him that, for personal reasons, she was unable to attend
the meeting on October 22. The following day, at his desk, Hill asked Janetzke
if he would give her cards for herself and Lillian Johnson. He advised that he
-could not give them to her until lunch time. At lunch time, he gave Hill the cal ds
and advised her to read them carefully, that one card was for union dues and the
other for union representation. Nothing else was said. Janetzke specifically
denied at any time advising Hill that the purpose of the cards was to have an
election 56
Lillian Johnson was still employed by Respondent at the time of her testimony.
Johnson asserted that prior to signing the union authorization card she learned
of the union effort from Hill, a week or two before she signed the card. Johnson
related that Kufrovich advised her that a certain percentage of names were needed
"so that it could be presented to the Company for recognition, and then if the
Company didn't recognize-it had to be brought up for a vote so all the employees
could vote "
The Board has stated. It is well settled that an employee's subjective state of
mind in signing a union card cannot negate the clear statement on the card that
the signer is designating the union as his bargaining agent. Gary Steel Products
Cot noration, 144 NLRB 1160.
The Board, in rejecting respondent's contention that employees who signed
authorization cards did not do so in order to designate the union as bargaining
representative, but rather that their intent in signing the cards was to secure an
election in the plant, found: It is well settled "that an employee's thoughts for
afterthoughts] as to why he signed a union card and what he thought the card
meant, cannot negative the overt action of having signed a card designating the
union as bargaining agent." Dan River Mills, Incorporated, 121 NLRB 645, 648.
In N.L R.B. v. Cumberland Shoe Corporation, 351 F.2d 917 (CA. 6), 144
NLRB 1268, in approving a finding of the Board that while card signers were told
the purpose of the card was to secure a Board election, it does not appear they
were told this was the "only purpose" of the cards, and we cannot say, on the
basis of this record that the card solicitors so indicated to employees, the court
held: In our present case we find no claim of outright misrepresentation on the
Q Was there anything said about a letter being filed?
A. Yes, there was
Q Before you signed it'i
A Yes He said there would be a letter filed I don't know with who
Q. Was there anything said about a letter being sent for bargaining rights.
A. This could be part of it, but as I told you previously, I don't remember fully
what was said about this and I am not sure and I can't make a statement under
oath to that.
Q Do you recall to whom this letter would be sent?
A. As I recall it would be either the NLRB or the Company
Q. And do you recall any other purpose for this letter besides an election'
A No, I do not, not that I can say under oath because I don't remember that
long ago.
To the extent that testimony of Flood is at variance with that of Janetzke, relative to
this conversation preceding the signing of the cards by Flood, I credit Janetzke
w Hill asserted that Janetzke advised her that if they got a majority "to sign these
cards" that the Union would go in for a vote and at that time vote yes or no, if you
wanted it in or not Hill acknowledged discussing the cards with Lillian Johnson, but
apparently that conversation was confined to the matter of dues Hill "believed" that
she read the cards before signing them Hill "believed" that she advised Johnson of the
reason given to Hill, by Janetzke, as the purpose of obtaining signatures on the cards
Johnson's testimony was obviously at variance To the extent the testimony of Hill is
at variance with that of Janetzke, I credit Janetzke
I find of no consequence the fact that Hill's card is dated, inadvertently, November 23.
The card was submitted by the Union, to the Board, on October 26, and obviously was
signed on October 23, not November 23. 1 so find
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of any solicitor. The authorization cards were themselves wholly unambigu-
ous and they related solely to authorization of union representation as collective-
bargaining representative.
In Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8), enfg. 149 NLRB
161, the court held: Thus, the Board's conclusion is correct-that "(T)he very
act of signing an authorization card by an employee, absent real proof of fraud or
deceit, calls for a finding that the employee knew what he was doing." 57
Accordingly, I find no credible evidence of outright misrepresentation on the
part of any solicitor. The authorization cards were themselves wholly unambigu-
ous and related solely to authorization of union representation as collective-
bargaining representative. I therefore find that the essential majority, in the unit
of 40, who voted in the election, was 21, and that, at all times on and after Octo-
ber 23, 1964, the record discloses, the Union had 22 valid authorization cards.
There is not a scintilla of evidence of any effort, by anyone, to revoke or rescind
such an authorization.
b. The larger unit
It is undisputed that the only difference between the "smaller" and the "larger"
unit is the inclusion, in the latter, of the employees who were employed in the
Corporate Engineering Department, the Corporate Industrial Engineering Depart-
ment, and the Area Quality Control Office. I have found, supra, section C, 1, that
there were, at most, four clerical employees in these three departments; i.e.,
Prickler, Polichem, Cahill, and Gagel.58
Cahill, at the meeting of October 22, 1964, without hearing any explanation of
the purpose of the union authorization card, read the card and then signed it.
Gagel also attended the union meeting, on October 22, 1964, and signed a union
authorization card, after reading its content. Gagel related that Graczyk stated
that there were cards on the table for the employees to sign "if they were inter-
ested in the Union."
Respondent asserts that Gagel was "actually a trained draftsman, who per-
formed substantial drafting functions and was awaiting permanent ,assignment as
a draftsman." General Counsel asserts that both Gagel and Cahill were doing
clerical duties, at all times material herein. These contentions, and the evidence
relative to the duties of Cahill and Gagel, are next considered.
Cahill, in August 1965, had been employed for 1 year and, at all times material,
was a blueprint operator in the Engineering Department. Cahill spent 50 percent
of his time operating a photocopy machine identified as a Bruning, which dupli-
cates blueprints, by coupling them with sensitized paper, which runs through
rollers and is subjected to light. Cahill asserted that he was shown how to oper-
ate the machine one day when he went to work and that there was not any special
training required. He obtained the blueprints he duplicated from the files which
were in his custody. The instructions relative to duplication were as to the identi-
fication of the print and the number of copies desired. The balance of Cahill's
duties were the ordering of supplies, such as paper, pencils, erasers, etc., and keep-
ing the filing system in order; i.e., the filing of engineering prints and locating
them, for use by others, as needed. Cahill's salary was $350 a month, in October
1964.
Gagel was initially employed by Respondent in September 1964, as an engineer-
ing clerk. Seventy-five percent of his time was spent in what he described as
"plate layout specifications," 10 percent filing, and the balance minor drafting and
helping Cahill with the Bruning machine. He described the plate layout specifica-
tion work as a form which tells exactly how a tin plate is cut, size, etc. He
obtained the information from scratch paper, verified the accuracy by the use of
addition, subtraction, multiplication, and division, no other type of computation
was involved. He recopied the computations from scratch paper onto the form.
Gagel described the training he received as approximating one half a day, during
which the purpose of the specifications were described to him. No special educa-
tion or training was required. The only special equipment used was a "Leroy,"
a special pencil, and stencil used for printing. Relative to his filing duties he
57 See also Joy Silk Mills, Inc. V. N.L.R.B., 185 F.2d 732, 743 (C.A D C.), cert. denied
341 U.S. 914; Gotham Shoe Manufacturing Co., Inc., 149 NLRB 862, enfd. 359 F.2d 684
(C.A. 2).
51 In view of the Union 's explicit request, in its letter of October 23, 1964, to represent
"clerical" employees , I find no merit in Respondent's effort to assert that the Union also
sought professional and technical employees.
NATIONAL CAN CORPORATION 671
described the files as having previously been kept in manila folders, and it was his
job to rearrange them in new folders and write headings on them, then file them
in numerical or alphabetical order. The minor drafting was recopying a torn or
old drawing. Gager asserted that while he had 3 years of drafting in high school
and 11/2 years in college , this training was not essential , but was helpful. He obtained
no special job training for his work, but did use such drafting equipment as
triangles and a board. While Gagel asserted that on occasions, he would make a
small change in a part, he acknowledged these drawings were not drawn to scale.
Gagel acknowledged that he was presently, at the time of his testimony, a drafts-
man, and had been for 21/2 months. It was Cahill who instructed him on the use
01 toe Bruning copying machine, which required approximately 3 hours for him
to learn. Gagel asserted he did not use a slide rule, logarithm tables, trigonom-
etry, or advanced algebra, in connection with his duties as an engineering clerk.
Gagel's salary, in October 1964, was $325 a month.
Strohecker acknowledged more than 50 percent of the employees in the unit
agreed to by the parties, on December 7, 1964, had a higher rate of pay than the
rates received by Cahill and Gagel in October 1964. It is undisputed that the
fringe benefits and working conditions of Cahill and Gagel were the same as the
other clerical employees.
General Counsel urges that the inclusion of Gagel is consistent with prior Board
decisions.59
In the Automatic Electric case the Board said:
The Employer contends that clerks in the engineering departments are techni-
cal employees and should therefore be excluded from the unit. Under the
direction of engineers and technicians, engineering clericals handle engineering
files, requisitions, and orders. They also write memoranda, and collect blue-
prints. Some of them draw simple sketches and occasionally use a drafting
board. They are generally graduates of a technical high school. The interests
of the clerks in engineering departments as to matters respecting wages, hours
of work, and other conditions of employment do not seem to be unlike those
of other clerical employees whom we shall include in the unit, and we shall,
therefore, also include the engineering clerks.
In the Mixermobile case the Board said:
The employer claims that the engineering clerks are skilled draftsmen and
should be excluded as technical employees. One clerk (Stewart) has been
gathering information for preparing a parts book for which he will make the
drawings. He has prepared some drawings and has had them reproduced by
the printers, some of which are distributed with the Company's products.
Hamblin, the other engineering clerk, has his office in the plant where he
keeps all printed material. He is engaged in preparing a general parts book
to match each machine that comes off the line, to which he attaches an
inspection report, a lubrication report, and warranty card. While it appears
from the record that some drafting work is required of each of these employ-
ees, there is insufficient evidence on which to make a finding that they are
technical employees. As they are engaged mainly in keeping records and
accumulating information, we find that they are plant clericals and include
them in plant clerical unit.
General Counsel asserts the work of Cahill is not unlike that found by the
Board to be clerical in the Automatic Electric case, supra, and in Chrysler Corpora-
tion, 87 NLRB 304, 305, in which the Board said:
Department 443, concerning which the parties disagree, is a department in
the general administration section of the Employer's plant called the blue
print department. Drawings prepared by draftsmen are sent to the blue print
department where they are reproduced for use in the engineering division,
production divisions, and other departments of the plant. By various repro-
duction methods, this department also supplies to all divisions copies of engi-
neering papers, laboratory data, and office records, documents, and papers.
We therefore find that all employees in the blue print department are clerical
employees serving all divisions of the plant, and are thus excluded from the
technical unit within the engineering division.
° Citing Automatic Electric Company, 78 NLRB 1057, 1061; Sperry Gyroscope Com-
pany, 106 NLRB 721; Miwermobile Manufacturers , Inc., 119 NLRB 1617, 1619.
672 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
Accordingly, I find that Cahill and Gagel are clerical, not technical employees
and properly belong in a clerical unit.
Having found that there are 44 employees in the larger unit, it follows that the
majority' is 23. Having found that Gagel and Cahill signed union authorization
cards, on October 22, 1964, I find that the Union did, in fact, have 24 authoriza-
tion cards in the larger unit at the time it made its request for recognition, on
October 23, 1964.
3. Contentions of the parties and concluding findings
Respondent contends that it was under no obligation to recognize and bargain
with the Union and asserts: (1) that the Union never made a clear, unambiguous,
and unequivocal demand upon Respondent in a unit appropriate for collective bar-
gaining; (2) that the Union was never designated as exclusive representative of an
uncoerced and voluntary majority of Respondent's employees in a unit appropriate
for the purpose of collective bargaining; and (3) that Respondent did not violate
the provisions of Section 8(a)(1) of the Act, nor engage in any activity warrant-
ing a setting aside of the election. These contentions and the subsidiary questions
raised by Respondent have been carefully considered, supra, and found lacking in
merit.
General Counsel correctly asserts as a prerequisite to a finding of a violation of
8(a)(5) findings that the Union represented a majority of the Respondent's
employees in an appropriate unit, that the Union sought and was refused recogni-
tion, and that Respondent was not motivated in its refusal by a good-faith doubt
of the Union's majority status. General Counsel asserts that Respondent's refusal
was predicated not by any good-faith doubt as to the Union's majority status, but,
rather, by a rejection of the collective-bargaining principle and by a desire to gain
time within which to undermine the Union.
The evidence reveals that on October 23, 1964, the Union, by letter received by
Respondent, on October 26, demanded recognition in an appropriate unit, at a time
when the Union had a majority status, in both the "larger" and "smaller" units.
Admittedly, Respondent's policy was not to recognize any Union prior to certifica-
tion, after a Board-conducted election. Admittedly, Respondent made no response
to the Union's demand, except to the extent the Consent Election Agreement, of
December 7, 1964, could be considered a response. Meanwhile, and thereafter,
Respondent engaged in a campaign of interrogation and threats violative of Section
8(a)(1) of the Act, to the extent found herein.
General Counsel correctly urges the applicability, to the facts in this case, of
the finding of the'Trial Examiner, approved by the Board, in the Derby Coal case 60
as follows:
. I think Respondent's attack upon the sufficiency of the Union's demands is
not tenable where, as soon as it received the Union's first demand, instead of
questioning that demand on any grounds, it embarked on a long and varied
campaign of unfair labor practices directed at all employees in the unit afore-
said, which was clearly designed, at first to coerce them into voting against the
Union at the coming election, . .. In such circumstances, the Respondent may
not evade its duty to bargain by a belated questioning of the sufficiency of the
unit description in the bargaining demand. Furthermore, the extent, intensity,
and variety of unfair labor practices indulged in by the Respondent ... demon-
strate that throughout its antiunion campaign it was motivated, not by any
genuine doubts as to the Union's majority status, the sufficiency of its bar-
gaining demands, or the appropriateness of the unit it represented, but by
a desire to undermine and destroy its majority status and prevent it by
any means from achieving bargaining rights . . . The resort to such unfair
labor practices is in and of itself proof of an unlawful refusal to bargain in
violation of Section 8(a)(5) of the Act.
In the Jas H. Matthews case, supra, the court said, inter alia
'Section 8(a)(5) of the Act requires an employer "to bargain collectively
with the representatives of his employees, subject to the provisions of Section
9(a)." The latter section provides that "Representatives designated or selected
for the purposes of collective bargaining by the majority of the employees
in the unit appropriate for such purposes, shall be the exclusive representa-
60 Derby Coal & Oil Co., Inc., 139 NLRB 1485, 1506.
NATIONAL CAN CORPORATION 673
tives of all employees in such unit for the purposes of collective bargaining
.. ' Although §9(c) (1) provides machinery by which the question or rep-
resentative status may be determined in a Board-conducted election, it is well-
settled that an election is not the exclusive instrumentality by which a Union's
representative status may be established. See United Mine Workers v. Arkan-
sas Oak Flooring Co., 351 U.S. 62, 71-72 .... Consequently, there is no abso-
lute right vested in an employer to demand an election. N.L.R.B. -v. Decker,
296 F.2d 338, 341 (8 Cir.); N.L.R.B. v. Trimfit of California, Inc., 211 F.2d
206, 209 (9 Cir.). Rather, it is established that when a Union has obtained
authorization cards signed by a majority of the employees in an appro-
priate unit, designating the Union as their bargaining representative, an
employer violates §8(a) (5) of the Act if, absent a good faith doubt of the
Union's majority status, he refuses to recognize and bargain with the Union.
In the Cumberland Shoe Corporation case, supra, the court said, inter alia:
The underlying problem- in this whole area is, of course that of determining
from the record of testimony before an NLRB Trial Examiner whether or not
the employer's refusal to bargain was based upon a "good-faith doubt", or on
the contrary, was a mere device on the part of the employer to take such
steps as he could to deprive the union of employee support needed to constitute
that majority. In cases such as this, where the employer's unfair labor prac-
tices are clearly established, both before and after the demand for bargaining,
the good faith of his doubts of the Union majority may properly be regard
with some suspicion.
Particularly appropriate to our present case is the language used by the Second
Circuit in N.L.R.B. v. Consolidated Machine Tool Corp., 163 F.2d 376 (C.A. 2,
1947), cert. denied 332 U.S. 824 (1947);
Whether the refusal was motivated by genuine doubt, as to the League's
designation by a majority of the pattern makers was for the Board to decide,
and the coercive conduct previously discussed supports the Board's inference
that the respondent's doubt was spurious.
In the Gotham Shoe Manufacturing Co. case, supra, the court said, inter alia:
In view of the respondent's conduct in seeking, during the whole period
from the time of the demand for recognition until the time set for the election,
to undermine the union, the Board could properly find that the employer's
refusal to bargain was for,the purpose of gaining time to destroy the union's
majority and that it had no good faith doubt of that majority.61
In the Irving Air Chute case 62 the court stated:
Nor was this refusal to bargain based on a good-faith doubt of the Union's
card majority. The Company never responded to the Union's offer of an
impartial count of the cards on which this majority was based or otherwise
expressed a doubt that majority status had been achieved. The anti-union
activity of the Company both reinforces the Board's conclusion that the Com-
pany refused to bargain and established that this refusal was in bad faith. The
Company appeared to rely on the filing of the petition as an excuse for its
refusal to bargain. However, the Board has recently held that a request for
an election does not constitute waiver of the bargaining demand (citing Bernel
Foam Products, Inc., 146 NLRB 1277.)
In the Joy Silk case, supra, the court said- "It has been held that'an employer may
refuse recognition to a union when motivated by a good-faith doubt as to that
Union's majority status. When, however, such refusal is due to a desire to gain
time and to take action to dissipate the union's majority, the refusal is no longer
justifiable and constitutes a violation of the duty to bargain set forth in Section
8(a)(5) of the Act."
I find Respondent's assertion that it insisted upon an election, as a matter of right,
by reason of a good-faith doubt of the Union's majority status, is ' negated by its
8i Citing: •N.L.R B v. Overnight Transportation Company, 308 F 2d 279, 283 (4th
Cir. 1962) ; N L R.B. v. Epstein, 203 F 2d 482 (3d Cir. 1953) ; Joy Silk Mills, Inc. V.
N.L R.B., 185 F.2d 732, 741-742 (D C Cir.-1950), cert. denied 341 U.S. 914 (1951).
62 Irving Air Chute Co , Inc v. N L R B, 350 F.2d 176 (C.A. 2), enfg 149 NLRB 627.
24 3-084-6 7-v o f 159-4 4
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subsequent unlawful course of conduct, as found herein. I further find it reason-
able to infer that Respondent's refusal was due to a desire to gain time and to take
action, in violation of the Act, to dissipate the Union's majority.
On the record as a whole, for the reasons set forth, I find Respondent's failure
and refusal to bargain, on and after October 26, 1964, when it knew the Union
represented a majority of the employees in an appropriate unit, and on and after
December 7, 1964, when it knew that the Union represented a majority of the
employees, in an appropriate unit, was not motivated by a good-faith doubt, and
was violative, in each instance, of Section 8(a)(5) and (1) of the Act.
In the Bei nel Foam case, supra, the Board held that where the conduct respond-
ent engaged in is found to be of a type which makes a fair election impossible the
election is set aside and regarded as a nullity. Finding that experience has dem-
onstrated that a vast majority of rerun elections result in favor of the party which
interfered with the original election, the Board to obtain a remedy would deny an
employer any benefit from its unlawful refusal to bargain, and to remove the motive
for demanding unnecessary elections and diminish efforts to undermine the will of
the employees by interfering with their freedom of choice, ordered the respondent
to recognize the union and, upon request, to bargain collectively with it.
The courts have held in a number of cases where the employer's acts of interfer-
ence, restraint, and coercion, in violation of Section 8(a)(1) of the Act, dissipate
a union's majority and prevent the employees from freely exercising their choice of
representatives, the Board may, in order to remedy these unfair labor practices,
issue an order directing the employer to bargain collectively with the union, upon
request, provided that the union had a majority at all relevant times. In Irving
Ah Chute, supra, the court observed: "The appropriate remedy must be fashioned
to meet the situation presented in each particular case and often depends on factual
differences seemingly slight, but sufficient to tip the scales in favor of the Board's
conclusion." Here, an election at this time would be manifestly unfair to the Union
since it would allow the Company to reap the benefits of its antiunion acts and
undoubtedly would result in additional costs to the Union of a new organizational
drive.63
Accordingly, I will recommend that Respondent be ordered, upon request to rec-
ognize and bargain with the Union, as the exclusive representative of its employees,
in the appropriate unit found herein.
D. The objections to the election
As stated above, section A, 1, the Union filed timely exceptions asserting: "(2)
From the time of filing of the petition to the date of the election, said Employer
continuously threatened numerous employees with respect to their conditions of
employment should they vote for the Petitioner." This objection is based upon
the same activities of the Respondent alleged in the complaint as violations of Sec-
tion 8(a)(1) of the Act, set forth, and found, in the section entitled "Interference,
restraint, and coercion," supra, to the extent therein found.
The Board has asserted, in Dal-Tex Optical Company, Inc., 137 NLRB 1782,
1786 that: "Conduct violative of Section 8(a)(1) is a fortiori, conduct which inter-
feres with a free and untrammelled choice in an election."
Having found conduct violative of Section 8(a)(1), and having found the appro-
priate remedy to be a bargaining order, rather than the ordering of a new election,
and as no current question concerning representation exists, I will recommend dis-
missal of the petition in Case 13-RC-10399 and vacation of all proceedings held in
connection therewith.84
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with Respondent's operations described in section I, above, have a close, inti-
mate, and substantial relationship to trade , traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes obstructing commerce and the free flow of commerce.
° The court noted the factual distinction presented in N.L.R .B. v. Fiomatic Corp., 347
F 2d 74 (C.A. 2).
"The Shelby Manufacturing Company, 155 NLRB 464.
0
NATIONAL CAN CORPORATION 675
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices , it will be recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act.
It will be recommended that Respondent, upon request, bargain collectively with
United Steelworkers of America, AFL-CIO, District 31, Sub-District 4, as the
exclusive representative of all employees in the unit herein found to be appropri-
ate for the purpose of collective bargaining.
It is further recommended that Respondent be ordered to cease and desist from
in any like or related manner infringing upon rights guaranteed to its employees
by Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act
and is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Steelworkers of America, AFL-CIO, District 31, Sub-District 4, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All office clerical employees and all plant clerical employees at Employer's
plant located at 5620 West 51st Street, Chicago, Illinois, excluding production and
maintenance employees, cafeteria employees, Corporate Engineering Department,
Corporate Industrial Engineering Department, Area Quality Control employees,
professional employees, confidential employees having access to labor relations
data, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times since October 23, 1964, United Steelworkers of America,
AFL-CIO, District 31, Sub-District 4, has been the exclusive representative of all
the employees in the aforesaid unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and other terms and condi-
tions of employment.
5. By refusing on and after October 26, 1964, and on and after December 7,
1964, to bargain collectively with the aforesaid labor organization, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By engaging in the conduct set forth in the section entitled "Interference,
Restraint, and Coercion," to the extent therein found, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record of the case, I recommend that the Respondent, National
Can Corporation, its officers, agents, successors, and assigns, shall:
(1) Cease and desist from:
(a) Refusing to recognize and bargain collectively with United Steelworkers of
America, AFL-CIO, District 31, Sub-District 4 as the exclusive representative of
its employees in the following appropriate unit: All office clerical employees and
all plant clerical employees at Employer's plant ocated at 5620 West 51st Street,
Chicago, Illinois, excluding production and maintenance employees, cafeteria
employees, Corporate Engineering Department, Corporate Industrial Engineering
Department, Area Quality Control employees, professional employees, confiden-
tial employees having access to labor relations data, guards , and supervisors as
defined in the Act.
(b) Interrogating employees concerning their organizational activities in the
manner violative of Section 8(a)(1) of the Act.
(c) Threatening employees with elimination of jobs, less desirable working con-
ditions, or other economic reprisals, if the employees select the Union.
(d) Soliciting employees to engage in surveillance of the union activities of
other employees or of union meetings.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of their right to self-organization , to form labor orga-
nizations , to join or assist United Steelworkers of America , AFL-CIO, District
31, Sub -District 4, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection
guaranteed in Section 7 of the Act, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized in
Section 8 ( a)(3) of the Act , as modified by the Labor -Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request , recognize and bargain collectively with United Steelworkers
of America , AFL-CIO, District 31, Sub-District 4, as the exclusive representative
of all the employees in the aforesaid appropriate unit, and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Post at its Clearing Plant, in Chicago , Illinois, copies of the attached notice
marked "Appendix ." 65 Copies of said notice to be furnished by the Regional
Director for Region 13, after being signed by Respondent's representative, shall be
posted by the Respondent and maintained by it for 60 consecutive days thereafter,
in conspicuous places, including each of Respondent 's bulletin boards. Reason-
able steps shall be taken by the Respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(c) Notify the Regional Director for Region 13, in writing, within 20 days
from the receipt of this Recommended Order, what steps it has taken to comply
herewith 66
IT IS FURTHER RECOMMENDED that the allegations of paragraph VI relating to
threats to employees by Fehrmann , the allegations of paragraph VII which assert
promises made by Hardy and Fehrmann , and the allegations in paragraph VIII (a)
which allege interrogation by Vieth on January 15, 1965, of the comnlamt, as
demanded , and the petition for certification of representatives in Case 13-RC-10399
be dismissed and all proceedings in the election case be vacated.
es In the event that this Recommended Order Is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words " a Decision
and Order."
"In the event that this Recommended Order Is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL, upon request, recognize and bargain collectively with United Steel-
workers of America, AFL -CIO, District 31, Sub-District 4, as the exclusive
representative of the employees in the bargaining unit described below with
respect to rates of pay , wages, hours of employment , and other terms and
conditions of employment, and, if an understanding is reached , WE WILL
embody such understanding in a signed contract . The bargaining unit is:
All office clerical employees and all plant clerical employees at Clearing
plant, located at 5620 West 51st Street , Chicago, Illinois, excluding pro-
duction and maintenance employees, cafeteria employees, Corporate Engi-
neering Department , Corporate Industrial Engineering Department, Area
Quality Control employees , professional employees, confidential employ-
ees having access to labor relations data, guards , and supervisors as
defined in the Act.
LIBBY, 111cNEILL AND LIBBY 677
WE WILL NOT interrogate our employees concerning their organizational
activities in a manner violative of Section 8(a)(1) of the Act.
WE WILL NOT threaten employees with elimination of jobs, less desirable
working conditions, or other economic reprisals, if the employees select the
Union.
WE WILL NOT solicit employees to engage in surveillance of the union activi-
ties of other employees or of union meetings.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce, our employees in the exercise of their right to self-organization, to
form labor organization, to join or assist United Steelworkers of America,
AFL-CIO, District 31, Sub-District 4, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection guaranteed in Section 7 of the Act, or to refrain from any
and all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
NATIONAL CAN CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 828-7597.
Libby, McNeill and Libby , Employer-Petitioner and United Pack-
inghouse Food and Allied Workers, Local 247, AFL-CIO and
United Steelworkers of America , AFL-CIO. Case 13-UC-7.
June 17, 1966
DECISION AND ORDER CLARIFYING CERTIFICATION
On October 20, 1944, the National Labor Relations Board, in Case
13-R-2530, certified the United Packinghouse Food and Allied
Workers Union, Local 247 (herein called the Packinghouse Work-
ers), in a unit of "all production and maintenance, service and cafe-
teria employees of the Company at its Chicago Meat Canning Plant"
with exclusions not involved herein.,
On April 3, 1961, the Board, Case 13-RC-7433, certified the United
Steelworkers of America, AFL-CIO (herein called the Steelwork-
ers), in a unit of "[A]II production and maintenance employees at
the Employer's can manufacturing plant," with exclusions not
involved herein.2
On November 2, 1965, the Employer filed the instant petition for
unit clarification seeking clarification of the placement of certain
158 NLRB 231, 233.
2130 NLRB 267, 269.
159 NLRB No. 46.