Pizza Products Corp.

National Labor Relations Board - Board Decisions

Jul 2, 1965

153 N.L.R.B. 1265 (N.L.R.B. 1965)

PIZZA PRODUCTS CORPORATION, ETC. 1265
Food and Allied Workers, AFL-CIO, concerning the subjects described immedi-
ately above.
WE WILL NOT in any similar manner interfere with , restrain , or coerce our
employees in the exercise of their rights under Section 7 of the Act.
WE WILL, upon demand, bargain collectively with Independent Union of Meat
Cutters and Packinghouse Employees, Local No. 1110, United Packinghouse,
Food and Allied Workers, affiliated with AFL-CIO, as the exclusive representa-
tive of all our employees in the following unit:
All production and maintenance employees at our Knoxville, Tennessee,
plant including the transportation department, shipping department, and
leadmen, but excluding office and plant clerical employees, salesmen, buyers,
guards, and supervisors as defined in the Act.
EAST TENNESSEE PACKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. 876-3311, Extension 5357.
APPENDIX B
NOTICE TO ALL MEMBERS OF INDEPENDENT UNION OF MEAT CUTTERS AND
PACKINGHOUSE EMPLOYEES (UNAFFILIATED)
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT demand or accept recognition from East Tennessee Packing
Company as the representative of its employees or maintain a collective-
bargaining relationship with said Company unless and until we have been certi-
fied by the National Labor Relations Board.
WE WILL NOT in any other manner restrain or coerce employees in the exercise
of their rights guaranteed in Section 7 of the National Labor Relations Act.
INDEPENDENT UNION OF MEAT CUTTERS AND
PACKINGHOUSE EMPLOYEES (UNAFFILIATED),
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street, Atlanta, Georgia, Telephone No. 876-3311,
Extension 5357. -
Pizza Products Corporation and G & W Food Products of Ohio,
Inc. and United Stone and Allied Products Workers of America,
AFL-CIO . Case No. 8-CA-3668. July 2, 1965
DECISION AND ORDER
On March 26, 1965, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
153 NLRB No. 78.
796-027-6G-vol. 153-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision with a supporting brief and a motion to reopen
record and receive further evidence. The General Counsel filed a
memorandum in opposition to Respondents' motion.'
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
the Respondents, Pizza Products Corporation and G & W Food Prod-
ucts of Ohio, Inc., Pemberville, Ohio, their officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
1 Subsequent to the hearing in this case, Respondents filed a motion to adduce the testi-
mony of Gustav Feldtmann by deposition, purportedly to deny that the Union had offered
a card check or other proof of majority. Assuming that the Union had not offered to
prove its majority, the Trial Examiner stated that fact would not alter his findings and
he accordingly denied the motion. Respondents thereafter renewed their motion before
the Board. The record shows that at the time of the hearing, Gustav Feldtmann was
confined to the hospital but Respondents did not request a continuance At the close of
General Counsel's case, Respondents proceeded to introduce evidence and call witnesses.
At the conclusion of their case, Respondents rested and did not request a postponement
in order to secure Feldtmann's testimony In view of the foregoing, the motion to reopen
the record is denied . Even assuming, without deciding, that the Union did not offer to
prove its majority, it nevertheless would not warrant a reversal of the finding that Re-
spondents violated Section 8(a)(5). Further, as the record and brief fully present the
issues and positions of the parties, Respondents' request for oral argument is denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 30, 1964, by United Stone and Allied Products
Workers of America, AFL-CIO, herein called the Union, the General Counsel of the
National Labor Relations Board, by the Regional Director for Region 8, issued a
complaint on December 10, 1964, against Pizza Products Corporation, herein called
Pizza, and G & W Food Products of Ohio, Inc., herein called G & W, collectively
referred to herein as the Respondents, alleging that the Respondents constitute a
single integrated business enterprise and had engaged in unfair labor practices vio-
lative of Section 8(a)(1) and (5) of the Act The complaint alleged that the
Respondents had restrained and coerced their employees by threatening to close
PIZZA PRODUCTS CORPORATION, ETC. 1267
operations if a union succeeded in organizing the employees and had conducted and
participated in a poll of employees to ascertain their union sympathies or desires,
thereby violating Section 8(a)(1) of the Act; and that the Respondents had violated
Section 8(a)(5) of the Act by refusing to bargain with the Union as the exclusive
representative of their employees in an appropriate unit. In their answer, the
Respondents denied that they operated as a single integrated enterprise and further
denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held by Trial Examiner Ivar H. Peterson on
February 8 and 9, 1965, in Toledo, Ohio. All parties were represented by counsel
and were afforded full opportunity to examine and cross -examine witnesses , to argue
orally on the record, and to file briefs. The General Counsel and the Respondents
filed briefs, which have been duly considered.
Upon the entire record in the case,' and from my observation of the witnesses and
their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents , Ohio corporations , are engaged at Pemberville , Ohio, in the
production and distribution of pizza crusts and finished pizza products. Respondent
Pizza, which was formed in September 1963 and began operations in late March
1964,2 makes pizza crusts, and all of its production is sold to Respondent G & W,
which has been in business for about 7 years. About 90 percent of the production of
Pizza is used by G & W in the manufacture of finished pizzas and G & W sells the
balance of the pizza crusts purchased from Pizza. Annually, G & W purchases goods
and materials valued in excess of $50,000, which goods and materials are transported
to it directly from States other than the State of Ohio. Since beginning operations,
Pizza has sold crusts to G & W valued in excess of $50,000.
Gustav Feldtmann is president and treasurer , and a director and shareholder of
each of the Respondents , and is actively engaged in the management of both of
them. He owns 20 shares of stock in G & W, and his wife and brother , Robert
Feldtmann , each owns 43 shares out of the 192 shares outstanding . In addition,
Feldtmann 's wife and brother are directors ( there are only three ), and Mrs. Feldt-
mann is vice president , assistant secretary, and assistant treasurer of G & W Frank
Kaczor and Carl Hooper each owns 43 shares of G & W stock, but neither is an
officer or director. Robert Kelb is secretary of G & W and also of Pizza. The only
shareholders of Pizza are Gustav Feldtmann and Kaczor , each owning 30 shares.
Feldtmann , Kaczor, and Kelb are the directors of Pizza, and Kaczor is vice president,
assistant treasurer , and assistant secretary . Kaczor devotes most of his time to
managing Pizza and directly supervising operations.
G & W and Pizza occupy the same premises , Pizza renting its space from G & W.
Separate books of account and payrolls are maintained by the two entities. They
share a common office and bookkeeper Employees of G & W and Pizza have sub-
stantially the same terms and conditions of employment , wage rates , and vacation
allowances , and share the same plant facilities . When one company is temporarily
in need of additional help, employees of the other are assigned to give the necessary
assistance . Kaczor testified that only recently has a record been kept of the hours
so spent on "loan" by employees of one company to the other . When Pizza began
production, some G & W employees on the night shift were transferred, at their
request, to daywork for Pizza. As of August 24, G & W had 29 employees and Pizza
had 23 employees , exclusive of supervisors and office clerical employees.
In view of the high degree of integration of products and operations , the occasional
interchange of employees , the common ownership and control that Feldtmann and
Kaczor, the active managers of G & W and Pizza, have and exercise over the corporate
'At the time of the hearing , Gustav Feldtmann , the principal officer of the Respond-
ents, was hospitalized and therefore unable to testify . No request was made that the
hearing be postponed on that account In his brief , counsel for the Respondents moved
for leave to submit Feldtmann 's testimony by deposition , the primary purpose of such
testimony being stated to be "to provide his unequivocal denial that Harold Etchison or
anyone on behalf of the Union ever offered a `card check ' or any other proof of majority "
Counsel for the General Counsel filed a memorandum in opposition , and counsel for the
Respondents filed an answering memorandum . Assuming that the Union did not offer to
prove its majority , by a card check or otherwise , that fact would not alter the findings
hereafter made Accordingly , the motion is denied.
2 Except where otherwise indicated , all dates refer to the year 1964
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affairs and labor policy of the Respondents, I find, contrary to the contention of the
Respondents, that they constitute an integrated enterprise and a single employer within
the meaning of Section 2(2) of the Act, and are engaged, singly and collectively, in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On April 20, Harold Etchison, director of the Union's district No. 3, which includes
the State of Ohio, met with several of the Respondents' employees in the meeting hall
of Local 24 of the Union in nearby Woodville, Ohio, having previously been advised
by the corresponding secretary of Local 24 that some of the Respondents' employees
had expressed an interest in union representation. Lester Clabaugh, an employee of
G & W, attended the meeting and was designated as a contact man for the Union at
the Respondents' plant. Thereafter Clabaugh and others distributed membership
application cards among employees and secured signatures. As of August 20 Etchi-
son had received 30 cards hearing the names of employees of the Respondents.
During shift change time on August 20, which was payday, Feldtmann called a
meeting of the employees of both Respondents. Various employees, as well as Vice
President Kaczor of Respondent Pizza and Luther Wegman, foreman of G & W,
testified regarding what occurred at this meeting. There is no material conflict in the
testimony, although the recollection of some of the witnesses was not as clear or
detailed as that of others. A fair consensus of the testimony establishes that Feldt-
mann said he was aware that a union was attempting to come into the plant and stated
he had received a letter from the United Mine Workers of America claiming repre-
sentation rights.3 Feldtmann said that the Respondents were in bad financial condi-
tion, could not afford to pay union wages, and that if a union came in he would have
to close the plant and turn it into a distribution center. As Kaczor testified, Feldt-
mann stated "he could not see his way to negotiate with a union or do anything for
it," and that he "would have to change his operation from crust making to a distribut-
ing company." G & W Foreman Luther Wegman credibly testified that Feldtmann
said that if the employees "had a union and made any demands on him that he might
have to change his operation" to a distributorship. Virginia Beair, an employee,
credibly related that Feldtmann said that "if we got the union in, we wouldn't have a
job. We could forget the union and keep the job."
At the conclusion of Feldtmann's talk, Mamie Christjohn, an employee, suggested
that a vote be taken among the employees to determine whether they wanted a union.
In response to Feldtmann's request for a show of hands, most of the employees
favored taking a vote at that time, although some suggested waiting and thinking
about the matter. Feldtmann went to the plant office for paper and pencils, and
ballots were then distributed by Foreman Wegman and Leroy Fox, an employee.
Feldtmann told the employees to mark their ballots "yes" if they were in favor of a
union and "no" if they were opposed. Fox collected the ballots in a box provided
by Feldtmann. During the voting, Feldtmann and Kaczor were present, as was
Foreman Wegman, who also voted. Ballots were tallied by Fox and Feldtmann,
resulting in a vote of 34 to 7 against union representation. Shortly after the balloting,
Feldtmann asked Clabaugh whether he "was the guilty guy that started this," to which
Clabaugh replied, "What do you think I am, crazy?" Feldtmann, according to
Clabaugh, "just laughed."
Based upon the uncontradicted and credited testimony, as summarized above, I find
that by Feldtmann's statement to employees that he would close the plant and turn
it into a distribution center if a union came in, and by his action in assisting and
participating in a poll of the employees as to their desires for union representation,
the Respondents interfered with, restrained, and coerced their employees in the exer-
cise of the self-organizational rights guaranteed them in Section 7 of the Act, thereby
violating Section 8 (a) (1) of the Act.
3 There is no evidence that the Mine Workers had been engaged In organizing the Re-
spondents' employees. Under date of August 6 an official of that organization wrote to
the Eighth Regional Office of the Board stating that "in the event a request for representa-
tion Is raised concerning the employees" of G & W, the Mine Workers "would be an in-
terested party and wish to be a part of any proceedings involving these employees." A
copy of this letter was sent to G & W, and I find that it was this letter that Feldtmann
referred to In his talk. As of August 20 the Union had made no claim to representation.
PIZZA PRODUCTS CORPORATION, ETC. 1269
B. The refusal to bargain collectively
1. The appropriate unit
In a stipulation entered into with counsel for the General Counsel , counsel for the
Respondents agreed that the same classifications of employees employed by each of
the Respondents constitute an appropriate unit, but did not admit that a single unit of
employees in the agreed classifications of both Respondents was appropriate. I have
found, in section I, above, that the Respondents constitute a single employer within
the meaning of the Act. Accordingly, and in agreement with the stipulation entered
into by the Respondents, I find that all production and maintenance employees of
the Respondents, including truckdrivers, but excluding all office clerical employees,
professional employees , guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining , within the meaning of Section
9(b) of the Act.
2. The Union's majority status
The Union 's bargaining demand was mailed to the Respondents on August 21, and
was received on August 24. Consequently, the critical date for determining the
Union's majority status is August 24.4 By agreement of the parties, two lists of
employees as of August 21 and 24, within the categories as included in the description
of the appropriate unit, were received in evidence. These lists show that as of Au-
gust 24 there were 52 employees in the unit (23 on the payroll of Pizza and 29 on the
payroll of G & \V). A total of 30 membership application cards,5 bearing the names
of employees of the Respondents as of August 21 and 24, were received in evidence.
These 30 cards were in the possession of Etchison, the Union's representative, on
August 20. The following day, August 21, he sent them to the Board's Regional
Office as evidence in support of the representation petition he forwarded on that date.°
Each of the cards, on the reverse side, bears a stamp showing its receipt by the
Regional Office on August 24. The Respondents contend that certain of the cards
lack evidentiary validity, for various reasons. These questions will next be considered.
At the outset, the card bearing the name of Sharon Cadaret cannot be counted
toward the Union's majority, thus reducing the total number of cards to 29. This
employee did not testify, and no witness identified her signature or otherwise testified
concerning the execution of the card.
A total of 20 employees testified and identified their signatures or printed name on
the card.? I find that the cards of these employees are valid cards and are properly
to be counted in determining the Union's majority.
June Cadaret, employed by Pizza since August 11, 1964, credibly testified that she
signed the card bearing her name (General Counsel's Exhibit No. 34), at the solicita-
tion of Lester Clabaugh She testified that he told her, "They wanted to get enough
people to have a union " and that she said that "if everybody else wanted a union I
' See Rea Construction Company, 137 NLRB 1769, and cases cited in footnote 1 thereof.
5 Aside from the top heading of the card bearing the full name of the Union , its affilia-
tion and address , the cards read as follows
Date ------------ 19 ----
I hereby accept membership in the United Stone and Allied Products Workers of
America , and of my own free will hereby authorize the U S A.P.W.A , its agents or
representatives to act for me as a collective bargaining agency in all matters per-
taining to rates of pay, wages , hours of employment , or other conditions of employment.
EMPLOYED BY
-------------------- ---------------------
Name of Company Address of Company
-------------------- ---------------------
Name of Applicant Address of Applicant
e The original petition ( Case No. 8-RC-5670 ), filed August 24, named only G & W as
the employer . An amended petition was filed August 26, naming both Pizza and G & W.
The petition was withdrawn on December 4
7The following 12 employees of Pizza as of August 21 and 24 authenticated their cards:
Sharon Bauer , Virginia Beair, Martha Cluckey, Katherine Garner , Judy Harmon, Linda
Johnson, Rebecca Loboschefski , Lana Mergenthaler , Harry Mull, Meda Riffle, Hulda
Schiermyer , and Rosetta Wilson Meda Riffle credibly testified that she printed her name
on the card and placed the date , May 6, on it . The following eight employees of G & W
as of August 21 and 24 identified their cards : Marlene Beair, Mary Brown, Lester
Clabaugh , Pansy Garvin , Arlene Joseph , Betty Riffle , Johnny Riffle, and Eleanor Runion.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would sign too," as she thought she, as a new employee, "should do what the majority
was doing." She could not recall whether anything was said to her about an election.
Cadaret explained the misdating on the card, August 17, 1965, as due to "one of my
tricks writing 65 instead of 64." I am persuaded that she did in fact sign the card
and that the date thereon is in her handwriting. Since the card bears the Regional
Office date stamp of August 24, I find it was included with the other cards sent by
Etchison to the Regional Office on August 21 Since I accept Cadaret's testimony
that she signed the card, I conclude that she did so after the date of her employment
(August 11) and prior to August 21 I find nothing misleading or fraudulent in the
representations made to her by Clabaugh, Accordingly, I conclude that her card
is valid.
The signature on the card of Donetta Mull (General Counsel's Exhibit No. 24)
was identified as being hers by Harry Mull, her husband, who saw her sign it. It
bears the same date, August 18, as his card, which I have accepted as valid. Her
card, I find, is valid.
James Oiler, an employee of a concern in Gibsonburg, Ohio, and a member of the
organizing committee of a local of the Union, testified that he gave authorization
cards to his wife, Joanne Oiler, and sister-in-law, Barbara Shull, and saw each of
them print her name on the card (General Counsel's Exhibits Nos. 18 and 20) on the
dates indicated on the cards, July 23 and 31, respectively. Mrs. Oiler, although
available and subpenaed by the Respondents, was not called as a witness According
to Mr. Oller, Barbara Shull, at the time of the hearing, was in Florida. Oiler testified
that the cards were returned to him and that he gave them to Etchison Oiler's
testimony is uncontradicted; he appeared to me to be a credible witness. I find that
the cards of Joanne Oller and Barbara Shull are sufficiently authenticated and should
be counted.
The only witness to testify concerning the cards bearing the names of Christine
Goucher, Richard Kern, and Patricia Savage (General Counsel's Exhibits Nos 30, 31,
and 29, respectively) was Lester Clabaugh. He testified that he gave the cards to
Goucher and Savage and saw them affix their signatures. The date on Goucher's
card, August 19, is obviously written in a different hand than the balance of the card,
and Clabaugh testified he filled in the date. Clabaugh further testified he saw Kern
sign his card, which was given to him by Etchison, and place the date, April 20, on it.
April 20, as found above, was the date some employees met with Etchison, who testi-
fied, as did Clabaugh, that Clabaugh and Kern were among the employees at that
meeting. A close inspection of Kern's card shows that the writing in the date and
name and address of company spaces is in different handwriting and darker color ink
than the writing in the name and address of applicant spaces. In a prehearing affi-
davit, Clabaugh inconsistently stated that he "didn't see anyone but Mary Brown sign"
a card, and that "Dick Kern signed one in my presence at a meeting with Etchison
right at the beginning of the campaign." On the other hand, Johnny Riffle, June
Cadaret, and Rebecca Loboschefski all credibly testified, in corroboration of
Clabaugh's testimony, that he was present when they signed their cards While I am
convinced that Clabaugh was in error in testifying that Kern placed the date on his
card, and that the above-quoted statements from his pretrial affidavit are not con-
sistent with each other or his testimony, Clabaugh on the whole impressed me as a
sincere witness, although somewhat inarticulate and not too literate I credit his
testimony and conclude that the cards of Goucher, Kern, and Savage are valid and
entitled to be counted.
Janet Clabaugh, the wife of Lester Clabaugh and employed by G & W for a year
before she quit in June, testified that she solicited Ruth Krasny's signature. Accord-
ing to Mrs. Clabaugh, Krasny stated she desired to join the Union and was not inter-
ested in the further information volunteered by Mrs. Clabaugh that an election was
to be sought. Mrs. Clabaugh testified that she saw Krasny sign the card, but that
she (Mrs. Clabaugh) put the date on the card (August 19) in Krasny's presence and
at her request, after Mrs. Clabaugh had called her attention to the omission. Mrs.
Clabaugh acknowledged that she told Krasny, as stated in her prehearing affidavit,
that the card "was to get an election started," but stated she did not say that that was
the only purpose Mrs. Clabaugh seemed to me a credible and forthright witness,
and her uncontradicted testimony is credited. I conclude that although Mrs Cla-
baugh told Krasny that an election was to be sought, she did not represent that that
was the sole purpose of the card, and that Krasny said she desired to join the Union
and was not interested in hearing the additional information Mrs Clabaugh sought
to give her. It is found that Krasny's card is valid and should be counted.
Mamie Christjohn identified her signature on the card bearing her name (General
Counsel's Exhibit No. 28). She testified that when Lester Clabaugh gave her the
PIZZA PRODUCTS CORPORATION, ETC. 1271
card he represented that everyone in the plant had signed "except one lady." She
kept the card for about a week and then, when Clabaugh asked whether she was
going to sign, she did so, stating that if "the rest sign it I will." During the week that
she had the card she did not inquire of fellow workers whether they had signed cards,
explaining she did not because Clabaugh had told her not to do so. She testified that
she would not have signed the card if she had known that "the whole company didn't
sign it " Mrs. Christjohn, an elderly, positive woman, impressed me as a credible
witness. While I have some doubt that Mrs. Christjohn was so naive as to have relied
upon Clabaugh's representation that everyone else in the plant had signed, I accept
her testimony, not controverted by Clabaugh, that he did make the statement to her.
Because of this material misrepresentation, I conclude that Mrs. Christjohn's card
is invalid.
To summarize, I find that as of August 24 the Union had been validly designated
by 28 of the 52 employees in the unit.
In his brief, counsel for the Respondents states that after the close of the hearing
and following Feldtmann's release from the hospital, Feldtmann "was able to demon-
strate conclusively" to counsel that Krasny, whose card is dated August 19, left her
employment on August 5 and never returned, and that Savage, whose card is dated
May 6, quit on July 16. Both Krasny and Savage are listed as employees of Pizza as
of August 21 and 24, on the list submitted in evidence by agreement of counsel for
the Respondents Opposite the name of each is the notation "sick leave." No ques-
tion was raised at the hearing as to their employee status on August 21 or 24, although
Kaczor, vice president of Pizza and in active charge of its operations, was present
throughout the hearing and testified. I adhere to my earlier finding that Krasny and
Savage were employees in the unit on August 24, and that their cards are to be
counted. But even if their employment had terminated earlier, and hence their cards
should be excluded, the result would be that the Union still would have a majority
of 26 out of 50 employees.
Contrary to the Respondents' contention, the evidence does not establish that
employees solicited to sign union cards were told that the cards were for the purpose
of obtaining an election. Clabaugh, the principal solicitor, credibly testified he made
no such representation, and in this he was corroborated by the credible testimony of
other employees, including Mrs. Christjohn.
Upon all the evidence, I find that the Union was properly designated as their col-
lective-bargaining representative by 28 of the 52 employees in the appropriate unit
on August 24, the date the Respondents received the Union's bargaining demand and,
therefore, that the Union was on August 24 the exclusive representative of the employ-
ees in the appropriate unit, within the meaning of Section 9(a) of the Act.
3. The refusal to bargain
On August 21, the day following the meeting held by Feldtmann with employees
of the Respondents, as described in section II, A, above, Etchison on behalf of the
Union sent the following certified letter to Feldtmann•
G & W FOOD PRODUCTS CORPORATION OF OHIO
R. R. #I
Pemberville, Ohio
Attention. Mr. Gustave Feldtmann, President
Gentlemen:
August 21, 1964
This is to advise you that our Union, United Stone and Allied Products Workers
of America, AFL-CIO, represent the majority of the production and mainte-
nance employees, and all truckdrivers including over-the-road truckdrivers at
your Pemberville, Ohio operations, for purposes of collective bargaining.
We hereby request that you recognize our Union, for purposes of collective bar-
gaining, in all matters pertaining to wages, rates of pay, hours of work, and
other conditions of employment, covering the employees in the unit described
above.
We further request that you meet and confer with us for the purpose of negotiat-
ing a collective bargaining agreement.
Kindly advise?
Yours truly,
Harold Etchison,
Director, District #3
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Feldtmann received this letter on August 24, and the same day replied as follows:
August 24, 1964
MR. HAROLD ETCHISON
P. O. Box 1063
Muncie, Indiana
Dear Mr. Etchison:
Enclosed find a copy of letter of 8/6/64 sent to the National Labor Relations
Board by the United Mine Workers of America.
Our employees voted 7 to 34 against a union at this time, but I would be very
happy to confer with you.
Very truly yours,
G & W FOOD PRODUCTS OF OHIO, INC.
(S) Gustave H. Feldtmann
GUSTAVE H. FELDTMANN
The Mine Workers' letter enclosed by Feldtmann was as follows:
August 6, 1964
NATIONAL LABOR RELATIONS BOARD
720 Bulkley Building
1501 Euclid Avenue
Cleveland 15, Ohio
Re: G & W Food Products Corporation
Highway 199
Pemberville, Ohio
Gentlemen:
This is to advise you that in the event a request for representation is raised
concerning the employees of the above plant we would be an interested party
and wish to be a part of any proceedings involving these employees.
Sincerely yours,
Thomas V. Badoud
Director, Region 36
cc- G & W Food Products Corporation
About 10 days after mailing the August 21 letter demanding recognition, Etchison
met with Feldtmann in the latter's office. Etchison's undenied testimony, which I
credit, is that he repeated the claim that the Union represented a majority and sug-
gested that they "sit down and negotiate a contract." Etchison also testified that he
said the Union was willing to have a card check to determine its majority status.
Feldtmann, so Etchison testified, refused to recognize the Union, said that the employ-
ees had a right to vote on union representation, suggested that they wait about a year
before anything be done "about the union," and expressed the view that negotiations
would cause a financial burden on him. Etchison testified he told Feldtmann that
the Union could not wait a year, that the employees wanted a union, and stated that
the Union was not going "to negotiate him out of his plant." There was no discussion
of the petition then on file with the Regional Offices Feldtmann, according to Etchi-
son, stated that he would contact his attorney, who was out of town, and then get
in touch with Etchison Some time later Etchison received a letter from counsel for'
the Respondents, the contents of which are not disclosed by the record, but he did
not hear directly from Feldtmann. Concededly, Etchison did not write to Respondent
Pizza or have any discussion with Kaczor.
Aside from contending that G & W and Pizza cannot be regarded as a single
employer and that the Union had not in fact been designated by a majority of the
employees, issues which I have resolved against them, the Respondents defend the
refusal-to-bargain charge by asserting that they entertained a good-faith doubt of
the Union's majority claim. In his brief (page 7), counsel for the Respondents states:
"It is conceded that if the Union had a majority on the date its request for recognition
was received, the Employers were under a duty to bargain unless they had a good
faith doubt of that majority." Disclaiming reliance upon the results of the poll con-
8The petition originally filed by the Union (Case No 8-RC-5670) on August 24 named
G & W as the employer, but listed the number of employees as 56, about twice the num-
ber actually employed by G & W. As amended on August 26, the petition named both
G & W and Pizza as the employer and continued to list the number of employees as 56.
PIZZA PRODUCTS CORPORATION, ETC. 1273
ducted on August 20 , it is suggested that "the fluctuating employment situation" and
the letter of August 6 from the Mine Workers, "give rise to a reasonable doubt as to
which Union , if any, was the choice of the employees."
Upon analysis , I find that the Respondents, in refusing to bargain , were not moti-
vated by a good-faith doubt regarding the Union 's majority. On the contrary, I
find that they declined to recognize and bargain with the Union because they sought
to avoid their statutory obligation . Aware of the Union's organizing activity among
the employees , and anticipating a demand for recognition and bargaining , President
Feldtmann convened a meeting of the Respondents ' employees , at a time when
employees from both shifts would be present , at which he made clear his opposition
to entering into negotiations with a union and flatly stated that rather than do so he
would close the plant and convert it into a distribution center, thereby eliminating the
jobs involved in the manufacture of pizza crusts and perhaps also those associated
with the making of finished pizzas. He emphasized his remarks regarding closing the
plant if the employees insisted on a union by stating that he could not afford to pay
union wages, was losing money , and had borrowed all the money he could borrow.
It was in this atmosphere that the elderly Mrs. Chrigtjohn , who had just 3 days
earlier signed a union card after considering the matter for about a week, proposed
that the employees then vote on whether or not they wanted a union.9 Feldtmann
asked for a show of hands on this suggestion and, when most of the employees
responded affirmatively , arranged for the vote and participated in tabulating the
results. In replying to the Union 's letter of August 21 demanding recognition , Feldt-
mann did not question the Union 's claim of majority representation but said that the
employees had "voted 7 to 34 against a union at this time." [Emphasis supplied.]
In his subsequent meeting with Etchison , Feldtmann did refer to the right of the
employees to vote on union representation , apparently in justification of the poll
conducted in the plant , but did not otherwise question the Union 's majority claim or
dispute the appropriateness of a unit including employees of both Respondents. His
refusal to recognize the Union was primarily grounded in the stated belief , previously
coercively expressed to the employees , that to do so would be financially burdensome.
Considering the total circumstances and the sequence of events , I construe Feldt-
mann 's letter of August 24 replying to the Union 's request for recognition and bar-
gaining, although in terms not so phrased , as a rejection of that request . Since I have
found that the poll of the employees on August 20 was conducted in a coercive
atmosphere , its results cannot be relied upon as the basis of a good -faith doubt of the
majority status of the Union . Nor am I able to find that the earlier letter received
from the Mine Workers expressing an interest in participating in any representation
proceeding involving the employees , an interest not shown or believed to have been
supported by any membership or organizing efforts among the employees , was in fact
relied upon by Feldtmann in refusing to bargain with the Union . Accordingly, I
conclude and find that the Respondents , on and after August 24 , refused to bargain
with the Union , the exclusive representative of the employees in the unit found appro-
priate above , thereby violating Section 8 (a) (5) and ( 1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section II, above, occurring in con-
nection with the operations of the Respondents set forth in section I, above, have a
close, intimate , and substantial relation to trade, traffic and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
IV. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take appropriate
affirmative action designed to effectuate the policies of the Act . To remedy the
Respondents ' unlawful refusal to fulfill their statutory bargaining obligation , I recom-
mend that they bargain on request with the Union as the exclusive representative of
u Plainly Mrs . Christlohn took Feldtmann 's remarks about closing the plant seriously.
She testified that she told counsel for the General Counsel in her prehearing interview,
and In apparent justification for her proposal that the employees vote, that she "was
glad to have the job that I had because at my age I couldn ' t go out and get a job. And
ten dollars a day to me was a lot better than nothing"
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their employees in the unit found appropriate herein, and, if an understanding is
reached, embody such understanding in a signed agreement. I also recommend that
the Respondents post at their plant the notice attached to this Decision marked
"Appendix."
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents are a single employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees of the Respondents including truck-
drivers, but excluding all office clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act
4 At all times material herein, the Union has been the exclusive bargaining repre-
sentative of the employees in the aforesaid appropriate unit, within the meaning of
Section 9(a) of the Act
5. By refusing on and after August 24, 1964, to recognize and bargain collectively
with the Union as the exclusive representative of the employees in the aforesaid
appropriate unit, the Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a) (5) of the Act.
6. By the foregoing conduct, by threatening to close the plant if the employees
selected a union as their representative, and by assisting and participating in the con-
duct of a poll to ascertain employee desires regarding representation, the Respondents
interfered with, restrained, and coerced employees in the exercise of their statutory
rights 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, G & W Food Products
of Ohio, Inc., and Pizza Products Corporation, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with United Stone and Allied
Products Workers of America, AFL-CIO, as the exclusive representative of all pro-
duction and maintenance employees of the Respondents, including truckdrivers, but
excluding all office clerical employees, professional employees, guards, and super-
visors as defined in the Act, concerning rates of pay, wages, hours of employment,
and other conditions of employment.
(b) Threatening to close their plant if the employees select a union as their repre-
sentative, assisting or participating in the conduct of a poll to ascertain employee
desires regarding representation, or in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all the employees in the unit described above, concerning rates
of pay, wages, hours of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
(b) Post at their plant in Pemberville, Ohio, copies of the attached notice marked
"Appendix." 10 Copies of said notice, to be furnished by the Regional Director for
iu In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of 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"
PIZZA PRODUCTS CORPORATION , ETC. 1275
Region 8, shall , after being duly signed by representatives of the Respondents, be
posted by the Respondents immediately upon receipt thereof, and be maintained for
a period of 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondents to insure that said notices are not altered , defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 8, in writing , within 20 days from
the date of receipt of this Decision and Recommended Order, what steps the Respond-
ents have taken to comply herewith.11
11 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director for Region 8, in writing , within
10 days from the date of this Order , what steps they have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT threaten to close our plant if our employees select a union as
their representative.
WE WILL NOT coercively assist or participate in the conduct of a poll of our
employees to ascertain their desires regarding union representation.
WE WILL NOT refuse to recognize and bargain collectively with United Stone
and Allied Products Workers of America, AFL-CIO, as the exclusive represent-
ative of our employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of rights guaranteed them in Section 7 of the Act.
WE WILL bargain collectively , upon request, with United Stone and Allied
Products Workers of America, AFL-CIO, as the exclusive representative of all
our employees in the bargaining unit described below with respect to rates of
pay, wages , hours of employment , and other conditions of employment, and,
if an understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees , including truckdrivers, but
excluding all office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above -named 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 amended Act.
G & W FOOD PRODUCTS OF OHIO, INC,
Employer.
Dated------ ------------- By-------------------------------------------
(Representative ) ( Title)
PIZZA PRODUCTS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720
Bulkley Building , 1501 Euclid Avenue, Cleveland , Ohio, Telephone No. Main 1-4465,
if they have any question concerning this notice or compliance with its provisions.