Plastilline, Inc.

National Labor Relations Board - Board Decisions

May 17, 1971

190 N.L.R.B. 365 (N.L.R.B. 1971)

Plastiline, Inc. and Charles A. McWhorter
PLASTILINE, INC. 365
Plastiline, Inc. and Broward County Carpenters Dis-
trict Council , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO. Cases 12-CA-4755
and 12-CA-4905
May 17, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On January 28, 1971, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceedings,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that Re-
spondent had not engaged in certain other unfair labor
practices and recommended that the allegation pertain-
ing thereto be dismissed. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision with
a supporting brief and a motion to reopen the record.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, brief, motion,' and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Plastiline, Inc., Pompano Beach, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order.
' Respondent has filed a motion to reopen the record and requests that
the Board direct a further hearing As a ground therefor , Respondent argues
that the Trial Examiner " impliedly credited" the General Counsel 's conten-
tion that the April 17, 1970, meeting was a negotiating session Categorizing
the meeting as a negotiating session is immaterial to our decision in that both
sides made their positions known at the meeting Respondent also asserts
as grounds for its motion the Trial Examiner's alleged finding that it was
guilty of a refusal to bargain on or about April 12, 1970, which is outside
the scope of the complaint We find no indication of such a finding in the
Trial Examiner 's Decision Accordingly, Respondent ' s motion is denied
190 NLRB No. 75
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: These cases were heard at
Miami, Florida, on October 20 through 26, 1970, pursuant to
charges filed on January 28 (by McWhorter) and,.July 28,
1970, (by Broward County Carpenters District Council,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein called the Union). A complaint was issued
by the Regional Director in Case 12-CA-4755 (the
McWhorter case) on May 18, 1970. Thereafter this case was
ordered consolidated with Case 12-CA-4905 and a con-
solidated amended complaint was issued on September 30,
1970. The consolidated amended complaint was issued on
September 30, 1970. The consolidated amended complaint
alleges in substance that the Respondent discharged
McWhorter on January 26, 1970, because of his union and
grievance-presentation activities, in violation of Section
8(a)(3) and (1) of the Aot, refused to bargain collectively with
the Union on and after June 12, 1970, in violation of Section
8(a)(5) and (1) of the Act, and engaged in certain alleged acts
of interference, restraint and coercion in violation of Section
8(a)(1) of the Act.
Upon the entire record,' my observation of the witnesses,
and after considering the brief filed by the Respondent, I
make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, is engaged at
Pompano Beach, Florida, in the manufacture and sale of
plastic pipe fittings. During the year preceding the issuance
of the consolidated amended complaint the Respondent
shipped more than $50,000 worth of finished products to
out-of-State destinations. Upon these facts, I find, as the Re-
spondent admits, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Broward County Carpenters District Council, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Respondent 's Discharge of Charles McWhorter in
Alleged Violation of Section 8(a)(3) and (1) of the Act
1. McWhorter 's work record prior to the organization of
the Union
McWhorter was classified as a mold maker and worked in
the Respondent 's toolroom . At the time of his termination he
had worked for the Respondent about 6 years. A mold maker
must be a highly skilled tool and die maker and necessarily
works to extremely close tolerances . McWhorter had been a
tool and die maker for over 30 years and was in the top labor
grade for mold makers. He was assigned to operate the largest
and most expensive machine in the toolroom , an automatic
boring mill. Frank Mayer , who was foreman over the tool-
room for all except the last 4 or 5 months of McWhorter's
employment , testified that prior to 1969, McWhorter was an
' The motions of the General Counsel and the Respondent to correct the
record are hereby granted These motions are included as TX Exh 1 and
2 in the folder containing the Respondent's exhibits
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"excellent worker" and that he had on occasions urged other
employees to try to "do as well" as McWhorter.
2. Sequence of events leading up to McWhorter's
suspension
An employee sought the aid of the Union in organizing the
Respondent's employees early in 1969. Both the Union and
the Company waged vigorous campaigns, distributing nu-
merous releases among the employees. In one of the Com-
pany's letters to the employees, dated April 11, 1969, the
Respondent's president, Bryce Batzer, stated as follows: "We
do not want to see a union come into the plant. We are going
to do what we legally can do to prevent it." In some of the
Union's leaflets, President Batzer was referred to in very
uncomplimentary terms.
The Union achieved sufficient support among the em-
ployees by March 19, 1969, to petition the Board's Regional
Office for an election, and the election was later scheduled for
May 5.
About 2 weeks before the election an antiunion circular
was mailed to the homes of the employees. It bore the state-
ment at the bottom "Published & Paid for by NUS commit-
tee," which was unknown to the employees at the plant. This
circular was referred to in a discussion in the plant between
Bryce Batzer, the president of the Respondent, and
McWhorter. McWhorter objected to the mailing of the circu-
lar to the employees, asserted that "you've got everybody in
the plant upset," and accused the Respondent of being re-
sponsible for the mailing of the circular to the employees'
homes. Batzer, in effect, denied that the Respondent was
responsible for the circular, whereupon McWhorter chal-
lenged Batzer to print a retraction if the Respondent were not
responsible.
Batzer had another conversation with McWhorter at his
machine a few days before the election. Both men objected to
the literature which the other side was putting out during the
preelection campaign. In the course of the conversation
McWhorter stated that since Batzer had let it be known that
he was going "to fight" the Union, he should consider
McWhorter as one of his opponents.
Sometime before the election McWhorter was involved in
an incident with Theodore Huber, who was assistant foreman
in the toolroom. Huber at various times had occasion to speak
to employees, including McWhorter, about returning to work
promptly at the end of their break periods. McWhorter ap-
parently resented this. On one occasion, while protesting Hu-
ber's asserted harassment of employees to return to work,
McWhorter stated to Huber, according to the latter's cred-
ited and undenied testimony, "You and the other guy are the
two biggest assholes in this shop." A few moments later
McWhorter called Huber a "Nazi" and accused the Re-
spondent of running the plant "like the Nazis do."' Huber
immediately reported the incident to Foreman Mayer.
The Union won the election by a vote of 139 to 91, with
5 challenged ballots. On May 13, 1969, the Regional Direc-
tor, on behalf of the Board, certified the Union as the exclu-
sive representative of all of the Respondent's employees in the
appropriate unit.
The day after the Union won the election President Batzer
called Joe Mankowitz, a business agent of the Union, and
apologized to him for having ordered him off company prem-
ises on the day before. In the course of the conversation which
ensued, Mankowitz, after assuring Batzer that together they
could work out a contract which would be beneficial for all
concerned, stated, according to Batzer's credited and un-
' Huber is of German nationality
denied testimony, that "If we are going to have any problems
it's going to be over that little s.o.b. McWhorter, and I dust
want you to know we are not going to war over him."
About 4:30 p.m. on May 15, 1969, Robert Goode and
Charles McWhorter, who were later elected president and
vice president of the Union, left the toolroom in which they
worked and entered the main plant in which the Respond-
ent's production is carried on. The toolroom is in a separate
building about 30 feet away from the main building. Accord-
ing to their testimony, they had completed their workday and
were going to get a cup of coffee in the vending machine area.
Goode testified that the coffee machine in the toolroom was
not in working order. To reach the vending machine area the
two men had to go down an aisle past production employees
at work (the production employees work in three shifts).
Plant Engineer Herman Schweizer stopped the men as they
were entering the vending machine area and told them that
they were not to use the area for recruiting purposes and to
leave immediately, asserting that it was contrary to Company
policy for men to remain on the premises after their workday
had ended. The two men nevertheless pressed forward and
obtained coffee for themselves, at the same time asserting that
they had a right to be there.' At this point, General Foreman
Ron Gavel joined the group and they all sat down at a table.
McWhorter objected that they were being "treated like
mules" and "pushed around." Later McWhorter, while nod-
ding in the direction of two female box stitching machine
operators, asked Gavel if he had "taken any action with
regard to the second shift foreman and the pigs he had work-
ing for him." Gavel told McWhorter that it was none of his
business. McWhorter rejoined that if Gavel did not take any
action "the union would when it got in." When Gavel told
Goode and McWhorter to leave, they insisted that they had
the right to remain as long as they wanted to. Gavel reported
this incident to Personnel Manager Don King the next day.'
About June 1, McWhorter stopped President Batzer as he
was passing by McWhorter's machine and said in an admit-
tedly loud tone of voice, "Bryce, where in the hell is my
raise." McWhorter went on to say that he was the only one
of five in the same category who had not received a raise.
When Batzer said that he had his reasons, McWhorter replied
that it was "quite obvious" what his reasons were, explaining
that he was "the only one of the five that was a union em-
ployee." The above quotations are from McWhorter's cred-
ited testimony. According to Batzer's testimony which I
credit, on this occasion McWhorter "started off on a tirade"
about the ability of his foreman, Frank Mayer, claiming that
Mayer had "cost the Company millions of dollars" and sug-
gesting that Batzer would do well to get rid of Mayer.
In the latter part of May, the Union held an election of
officers, stewards, and trustees. As above indicated, Robert
Goode was elected president of the Union and McWhorter
was elected vice president. Ray Vick was elected recording
secretary.
Sometime early in June 1969, after the election of union
officers, President Batzer had a conversation with Ray Vick,
the recording secretary of the Union. According to Vick,
' McWhorter referred to a letter to the employees from President Batzer
which he asserted gave them the right One paragraph of a letter mailed to
the employees on March 7, 1969, states as follows
The second situation concerns the new machine shop building A state-
ment has been made that all employees except those working in the
machine shop are to be kept out of the building This is not true Any
employee is free to move about the buildings providing it doesn't inter-
fere with his assigned duties
The foregoing findings about the vending area incident are based upon
my reconciliation of the sometimes sharply conflicting testimony of the
various participants in the incident
PLASTILINE, INC. 367
Batzer, after mentioning the fact that Vick was an officer in
the Union, stated that he "sure wished that they could have
had an independent union in there rather than the Carpen-
ters, or any outside union ." Batzer went on to say that he had
a new position in mind and was considering Vick for it, and
indicated that he would receive more favorable consideration
for the job if he would drop his union affiliation. Batzer's
version of the conversation is that Vick volunteered that the
employees intended to use the Carpenters to help them organ-
izer but once the Union was organized to ask the NLRB for
leave to disassociate themselves from the Carpenters and
form a company union . Regarding Vick's testimony as to a
job offer, Batzer testified that he asked Vick if he would be
interested in a supervisory job in the molding department and
that Vick turned it down because "it would put him in a poor
light with the employees he worked with to organize the
union ." Batzer denied telling Vick that his union affiliation
"was holding him back" from progressing in the Company.
In my opinion it is implausible that Vick would have stated
to Batzer that the employees proposed to take advantage of
the Carpenters and then drop the organization later on. Fur-
thermore, Batzer exhibited a poor memory at various points
in his testimony. Having observed both witnesses on the
stand, I credit Vick's version.
Shortly thereafter a negotiating committee was appointed
by representatives of the District Council and affiliated organ-
izations within the Carpenters International Union. The
committee included several employee-members, among
whom were Union President Goode and Vice President
McWhorter and also several union officials, namely Joe Man-
kowitz, a business representative of the District Council,
Warren Conary, a representative of the Florida State Council
of Carpenters, and John Sheppard, a representative of the
International . Although Goode and McWhorter acted as the
chief spokesmen for the Union in the bargaining meetings
which followed, Goode was informed at the time he was
appointed to the negotiating committee that his role was
subject to the authority of the District Council and its affili-
ates.
The union negotiating committee, with Union President
Goode and Vice President McWhorter acting as co-chair-
men, met with representatives of the Respondent for the
purpose of collective bargaining 13 times in the June to
December 1969 period. The first meeting was held on June
10. Attorney Granville Alley, Jr., was the Respondent's
spokesman in the negotiations . The negotiations culminated
in an agreement between the union negotiating committee
and the Respondent. The record fails to show when this
agreement was reached, except that it was some time before
April 12, 1970, when the employees at a union meeting voted
to reject the agreement.
When Union President Goode was asked at the hearing to
describe McWhorter's conduct at the bargaining meetings, he
answered as follows:
Mr. McWhorter was very aggressive when the attorney,
Mr. Alley, would bring forth a proposal from the com-
pany and if it was distasteful to Mr. McWhorter, he
would raise many objections to the point of an obvious
feeling by Mr. Alley of resentment.
3. The circumstances surrounding McWhorter's
suspension on January 26, 1970
The chain of incidents precipitating McWhorter's suspen-
sion commenced on January 22, 1970. At 4:48 p in. that day
Everett Moore, the foreman of the toolroom, testified that on
this occasion he observed McWhorter not working and that
his toolbox was locked at 4.48 p.m. The buzzer, which signals
time to quit work, does not sound until 4.55 p.m. Moore then
asked Theodore Huber, the assistant foreman, why McWhor-
ter's box was closed. Huber said he did not know. According
to Moore, when McWhorter observed Moore looking at him,
he began to pretend he was busy and started cleaning up his
machine. Moore then noted on a form which the Respondent
uses, headed "Written Warning," the following with respect
to McWhorter:
I saw his tool box locked at 4:48 p in. I did not say
anything to him today.
Moore then had the form inserted in McWhorter's personnel
folder. The practice of Moore and his predecessor, Mayer,
with respect to the use of these warning slips is discussed
below.
The next afternoon, Friday, January 23, McWhorter
started cleaning up his machine about 4:50 p.m As found
above, McWhorter operated the largest machine in the tool-
room, and it produced the most dirt and debris. At 4:50 p.m.
Foreman Moore noticed that McWhorter's toolbox was again
closed and locked. Moore told Assistant Foreman Huber that
he was going to have to speak to McWhorter about it.
McWhorter testified as follows concerning Moore's con-
versation with him on this occasion:
. I started cleaning up at 4.50, and my machine was
still running . It was in the middle of a cut. So, I pro-
ceeded to let it run and was putting away my tools and
things, and all of a sudden I closed the lid on my tool
box.
Immediately Mr. Moore came over and pointed to the
tool box and said, "I do not want to see that tool box
closed until 4:55."
I said, "It's my own personal tool box." I said, "I
don't know of any reason why I shouldn't do that."
He said, "Furthermore, I want your machine running
until 4:55," and I pointed out to him that the machine
was still running. He ignored that and went back to his
tool box.
I argued that there had never been a rule that I ever
knew that said a man couldn't close his tool box. Some
people left their tool boxes, kept them closed all day
long. They never did open them.
I said, "Why are you picking on me." I said, "Why
all these new rules always start with me."
He said, "Furthermore, I don't want you out there at
that coffee truck until 10 minutes until 10:00," and again
I emphasized, "Why are you picking on me."
I said, "Look at the men in the wash room already
washing up." He ignored this and by that time the
buzzer had rang and it was time to quit. So, I went in
and washed up.
Moore testified as follows regarding this incident:
I walked over and I told Mr. McWhorter, as I stated
here, that I didn't want his box being closed before the
4:55 bell, or to stop work before the 4:55 bell, because
if somebody come to the front office, if Mr. Batzer would
come through and saw him not working and closed up
I would be checked on.
So Mr. McWhorter got quite indignant with meat this
time and said why was I picking him out and what had
changed the rules.
I said , "Mr. McWhorter, I do not make the rules
here." I said, "I have to enforce them, and if you are not
satisfied with the rules you will have to see Mr Jones in
personnel."
Moore added that McWhorter was "very, very perturbed and
angry" on this occasion. Moore testified, contrary to
McWhorter, that McWhorter's machine was not running
when he spoke to him on this occasion. I credit Moore's
testimony in this regard. McWhorter's statement on gnev-
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ances which was read to Director of Industrial Relations
Jones just 2 days later indicates that Moore approached
McWhorter after McWhorter had shut down his machine.
This statement of grievances is discussed more fully below.
Later that day Moore prepared and had placed in
McWhorter's personnel folder another warning slip stating as
follows regarding this incident.
At 4.50 I saw his box locked so I went to him and told
him I didn't want his box closed until 4:55 because if
somebody from the front office came in and saw it I
would be checked on it. He got very indignant about it
so I notified all the assistant foremen that from here on
no body would be allowed to go to the lunch wagon etc.
before the bell rang. I notified personnel of this matter.
McWhorter was not informed that this slip had been placed
in his personnel folder.
Shortly after the conversation with Moore, McWhorter
went into Moore's office and asked him to make an appoint-
ment for McWhorter to see Director of Industrial Relations
Walter Jones on the following Monday. Moore agreed to do
so. Moore got up to leave just as McWhorter started to leave
the office Both men reached the doorway about the same
time, with McWhorter slightly in the lead. At this point
McWhorter raised his forearm to a horizontal position with
his elbow forward and nudged Moore in his ribs, temporarily
blocking his passage. Moore told McWhorter, as the latter
testified, "Don't you push me." McWhorter denied doing so
and followed Moore out the door.'
On Sunday night, January 25, McWhorter prepared a
16-Y,-page statement which he planned to read to Director of
Industrial Relations Jones at the conference which was being
arranged for the following day. In this statement McWhorter
listed numerous instances of asserted harassment and dis-
crimination against him by certain of the Respondent's super-
visors because of his official position in the Union and also
instances of alleged favoritism towards nonunion employees.
The statement concluded with a request for papers on which
to file a grievance under the procedure which he asserted the
Respondent had adopted.'
The meeting with Jones was arranged for 1:30 p.m on
Monday, January 26. McWhorter arrived at Jones' office with
a tape recorder in an open manila folder. McWhorter first
requested that Robert Goode, the president of the Union, be
present at the meeting Jones, after making a telephone call,
denied this request. At this point, Jones asked McWhorter if
he had a tape recorder among his papers. McWhorter admit-
ted that he had. Jones stated that he was sorry but he could
not allow McWhorter to record this session . According to
McWhorter, the following then ensued:
I said, "Why not? You have tape recorders. I said, "You
have one on your desk." I said, "You have several more
within the room here."
When Jones denied this, McWhorter asserted, as he testified,
"Everybody in the plant knows that you record all of the
sessions and conversations that take place in this room."
McWhorter proposed that they move to another room, leav-
' The findings in the above paragraph are based upon my resolution of
the somewhat conflicting versions of McWhorter and Moore concerning
this incident Although McWhorter denied attempting to block Moore's
passage, I believe he was still angry at the reprimand which he received from
Moore a few minutes earlier and either deliberately or subconsciously gave
vent to his anger in this manner
' The Respondent had in fact distributed among its supervisors a docu-
ment setting forth a grievance procedure but it had not notified the em-
ployees of the existence of the procedure McWhorter had heard the Re-
spondent 's proposed grievance procedure being discussed in negotiating
meetings and had previously received a copy of the document containing
the grievance procedure from an assistant foreman
ing their recorders in Jones' office Jones reluctantly agreed.
After settling themselves in another office, McWhorter
read the statement in its entirety to Jones, with only a few
interruptions from Jones. In the statement, McWhorter ac-
cused the Respondent of engaging in "a planned program" of
"harassment" against Union employees and "favoritism" to-
wards nonunion employees in an effort to encourage union
employees, particularly himself, to quit. This, McWhorter
asserted, would give the Respondent "a free hand to ride herd
on the rest of the employees." In the statement, McWhorter
reveals himself as being overly confident of his abilities and
qualities as an employee and highly critical of three of the
Respondent's supervisors, Herman Schweizer, chief engineer,
Moore and Huber, the foreman and assistant foreman in the
toolroom. McWhorter's statement as a whole is highly an-
tagonistic to the Respondent and it openly reveals his convic-
tion that the Respondent would not consider his grievances
in good faith. As indicated above, McWhorter concluded his
presentation with a request for forms on which he could
submit his grievances. Jones indicated that the Respondent
had no such forms and suggested that they return to his office.
Jones called Walter Legere, his assistant, and Moore,
McWhorter's foreman, into the office. Then Jones stated that
he was particularly interested in the toolbox incident of the
preceding Friday. This was the last specific instance of alleged
discrimination and harassment covered by McWhorter in his
presentation to Jones. McWhorter offered to drop this com-
plaint if Jones would consider the remaining incidents. Jones
replied, "I am particularly interested in that last day there."
McWhorter reread his notes concerning this incident
Jones asked Moore, "Is that the way it happened?" Moore
said, "Yes, that's about right." Then the following ensued,
according to McWhorter's testimony:
He said to Mr. Moore, "Wasn't there something else
you told me this morning about that incident."
Mr. Moore said, "Oh yes." He said "As we started to
go through the door Mr. McWhorter pushed me."
I guess I jumped up from my seat , or something, and
I said, "Wait a minute. What are you fellows trying to
pull off here."
Jones thereupon excused Legere and Moore and after they
had left the office, McWhorter again asked for the papers
upon which to file his grievance. When Jones again stated
that he had no such papers, McWhorter said, "Well, I guess
I've wasted my time" and started to leave.
McWhorter testified regarding the remainder of this meet-
ing as follows:
Mr. Jones said in a loud voice, "Now, just a moment.
You sit down here I'll tell you when to leave." He said,
"I resent you coming into my office with a tape recorder
and attempting to record my voice. This is an invasion
of my privacy." He said, "I resent this," and he said,
"Therefore, I'm going to suspend you."
Jones then took McWhorter back to the toolroom. The two
men passed a group of toolroom employees having coffee as
they walked towards McWhorter's work station. As they did
so McWhorter shouted, as Jones testified, "I just got fired
. for doing nothing." Jones remonstrated with McWhorter
for disrupting production and announced, McWhorter's tes-
timony continues, "I'll give you ten minutes to get off the
company property." As McWhorter started putting away his
tools, Jones told him "Don't take your tools.... If you take
your tools I'll consider that you have quit." In McWhorter's
words, the following then occurred:
I said , "Mr. Jones, I'm not quitting." I said, I want
that perfectly clear, I'm not quitting," but I said, "I have
had this entire lot of tools, $2,000 worth stolen just a few
months back ." I said, "If you will take the responsibility
PLASTILINE, INC. 369
for these tools I'll leave them, but if you will not take the
responsibility I must take them.
He said, "I will not assume the responsibility." So, I
continued to pack up my tools. He said, "If you are not
out of here within five minutes I'm going to call the
guard."
... I kept packing my tools. I have lots of them, two
big roll away chests full of tools. I looked up, and here's
a guard standing there....
The guard said, "I'm sorry, but you are going to have
to leave," and I said, "Well, I will if you will just give
me a few moments more." I said, "You are not going to
have any trouble with me."
I completed just threw things together and closed
the door and rolled the chest out through the door, and
the guard helped me. I left the building, and that was the
end of that.
The foregoing findings concerning the meeting between
McWhorter and Jones on January 26, 1970, are based upon
my reconciliation of the sometimes conflicting testimony of
McWhorter and Jones. I found both McWhorter and Jones
apt to overstate matters and have had to scrutinize their
testimony carefully in an effort to ascertain where the truth
lies. The findings recited above, based in part upon McWhor-
ter's testimony and to a lesser degree upon Jones', are consist-
ent with what I believe to be the logic of the situation.
A few minutes after McWhorter was suspended, Jones told
Robert Goode, the president of the Union, that McWhorter
was suspended for being "insubordinate." When Goode
asked what Jones meant, Jones replied, as Goode testified,
"Well, we find that he is very loud, very boisterous and he
does not respond with our direction."
Around breaktime on the afternoon of McWhorter's sus-
pension, Jones explained to the assembled toolroom em-
ployees that McWhorter was suspended pending an investiga-
tion. When a few employees asked questions concerning the
reasons for the suspension, Jones stated that he did not have
all of the facts in his possession and would inform them more
fully later.
That same afternoon Goode had the following conversa-
tion with Foreman Moore, as Goode credibly testified:
I had asked Mr. Moore what-for what cause Mr.
McWhorter was suspended and what were the results;
what was being done about it. And Mr. Mc-Mr. Moore
said to me that the only difference between he and Mr.
McWhorter was the fact that he had closed his tool box
prior to the five minute bell that goes off-five minutes
wash up bell. And I raised the objection and I accused
Mr. Moore of singling out Mr. McWhorter because most
of the employees in the tool room, by the nature of their
work, closes their tool box at any given hour during the
day. On most occasions, a lot of tool boxes are not even
opened during the day. There are many days when I go
through without even putting a key to my tool box and
no objection is ever raised.
TRIAL EXAMINER You told all this to Mr. M
WITNESS Yes, Sir.
oore?
And Mr. Moore said well, he had not noticed these
things, that he had brought to Mr. McWhorter's atten-
tion that he had closed his tool box early.
4. McWhorter's discharge on February 20, 1970
On February 9, McWhorter went to the Respondent's
office and sought to talk with Jones. However, Jones was
confined to a hospital at the time and McWhorter talked to
Assistant Personnel Manager Legere. McWhorter first told
Legere that he wanted to make arrangements so that his
insurance would not expire. Then McWhorter said that the
Unemployment Commission had sent him in and wanted to
know the disposition of his case. Legere stated that the matter
was in Jones' hands and that he would have Jones call him
when he returned. About a week later, after Jones had re-
turned, McWhorter called Jones again . Legere took the call,
explaining that Jones was busy. McWhorter asked Legere on
this occasion "how much longer my suspension is going to be
for." Legere replied that this was strictly between
McWhorter and Jones and again stated that he would have
Jones call him. The next day Jones called McWhorter, but
said he still had not completed his investigation, and that he
would call the following day.
On the next day, February 20, Jones called and said he was
converting McWhorter's suspension into a discharge. When
asked for the reason, Jones replied that there were numerous
reasons, including insubordination and pushing a supervisor,
and referred to the various incidents in which McWhorter
had been involved in the 6 years of his employment. The
foregoing is McWhorter's recollection of the reasons given
him by Jones for his discharge. Jones recalled a few additional
reasons given McWhorter at this time, such as fighting on the
job and other incidents which were documented in his per-
sonnel folder, constant use of foul and abusive language and
inability to get along with his fellow employees. Jones con-
cluded with the statement that he "just felt that we couldn't
tolerate it any longer." I credit Jones' testimony concerning
these additional reasons for McWhorter's discharge.
5. The warning slips previously given McWhorter
In mentioning the fighting on the job and other incidents
which were documented in McWhorter's personnel folder,
Jones was referring to the warning slips which over the years
had been placed in McWhorter's personnel folder.
Before even briefly covering the content of these warning
slips, it is necessary to explain the Respondent's procedure
with respect to the issuance of these slips. Although these
slips are headed at the top "Written Warning," and contain
at the bottom the words "Repeated Written Warnings could
lead to further disciplinary action or discharge," except in the
comparatively rare instances in which the employee is shown
the slip and asked to receipt for it, the employee is not in-
formed that a warning slip has been prepared. Under the
Respondent's practice, such a warning is considered an oral
warning even though the supervisor may have given the em-
ployee only the mildest sort of reprimand in discussing the
incident with him or, as in the case of the incident involving
McWhorter on January 22, may not even have mentioned the
incident to the employee at all. In cases of serious misconduct
or drastic violations of the Respondent' s rules, the Respond-
ent shows the warning slip to the employee and asks him to
sign it . On such occasions the employee is deemed to have
received a written warning.
At the trial in this case the Respondent introduced into
evidence 16 warning slips which had been placed in McWhor-
ter's personnel folder at various times commencing in 1967.
But two were issued before the union campaign began. Only
three of these 16 warnings were what the Respondent re-
garded as written warnings, given for more serious miscon-
duct or derelictions of duty. One of these, issued on May 10,
1967, stemmed from a fight with Ed Czulinski in the shop,
for which McWhorter received a 3-day layoff. The next re-
sulted from McWhorter's leaving the toolroom without per-
mission on June 12, 1969, about a month after the Union won
the election. For this offense McWhorter was given a 2-day
layoff. The warning slip issued by Foreman Mayer on this
occasion, which McWhorter refused to sign , states that
"When confronted with charge in front of Mr. King [the then
personnel manager] Mr. McWhorter used abusive language."
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mayer credibly testified that McWhorter called him "a lousy
Christian' and a liar and a poor foreman" on this occasion.
The third written warning given McWhorter was based upon
work errors and his failure to follow instructions in machin-
ing a certain part.
Of the 13 oral warnings placed in McWhorter's folder, the
last two covered the incidents which precipitated McWhor-
ter's suspension on January 26. Four of these 13 were based
upon misconduct of one sort or another, such as harassing an
employee to join the Union, removing a company letter from
the bulletin board, and doing personal work in the shop 2
days in a row after being reprimanded on the first occasion.
The remainder were based either on work errors or taking
excessive time on jobs. Some of the work errors required
costly repair jobs.
The Respondent established that it had discharged nine
employees in the preceding 12 months, including one for
insubordination, and that all of them had fewer oral or writ-
ten warnings in their personnel folders than did McWhorter.
The General Counsel made no attempt to prove the contrary
or to differentiate their cases from McWhorter's.
6. The Respondent's contention concerning McWhorter's
discharge; Conclusion
The Respondent, while not denying that it was fully aware
of McWhorter's very active role in the union movement,
contends that the accumulation of complaints against
McWhorter, culminating in the incident in Moore's office on
January 23, in which McWhorter pushed Moore in the ribs
with his elbow-which the Respondent characterizes as a
"flagrant act of insubordination"-was the real reason for
McWhorter's discharge and that McWhorter's union activi-
ties were not a substantial and motivating factor in his dis-
charge.
In passing upon this contention it should be borne in mind
that at the time of McWhorter's discharge the relations be-
tween the Respondent and the Union were amicable. At that
time the parties had bargained together in good faith over a
6-month period and the prospects for reaching a satisfactory
agreement wwere excellent. (An agreement satisfactory to the
negotiating committees was in fact reached not long there-
after.) The Respondent is charged with no unfair labor prac-
tices in the 6-month period antedating McWhorter's dis-
charge. While the General Counsel relies on several
statements of President Batzer which indicate hostility to the
Union, the latest of these was uttered in June 1969, approxi-
mately 8 months before McWhorter's discharge, long before
the series of bargaining meetings was successfully concluded.
While McWhorter had previously been an excellent tool
and die maker, his work deteriorated after the Union came
into the picture.
The record shows that McWhorter had a very short tem-
per, was quick to give vent to his anger, and frequently used
abusive language to his superiors. All in all, McWhorter was
a very difficult employee to handle and caused problems with
other employees, as well as supervisors. While I do not regard
McWhorter's pushing of Moore on Friday, January 23, as
seriously as does the Respondent, the Respondent could
fairly treat this as a further challenge to its authority. This
incident, together with the incident in Jones' office just before
McWhorter's suspension in which McWhorter attempted to
make a tape recording of the discussions there and in which
he arrogantly and presumptuously presented his statement of
his grievances, could reasonably be regarded as the "last
straw," as Jones in effect testified. In my opinion it was the
accumulation of complaints against this irascible employee,
rather than McWhorter's union activities which caused the
Respondent, after reviewing McWhorter's entire record, to
convert his suspension into a discharge. Such a discharge is
lawful, and the allegations of the complaint based upon
McWhorter's discharge will be dismissed.
B. The Respondent's Refusal To Bargain Collectively with
the Union in Violation of Section 8(a)(5) and (1) of the
Act,- Further Acts of Interference,- Restraint and Coercion in
Violation of Section 8(a)(1) of the Act.
1. Introductory statement
The complaint challenges the Respondent's conduct com-
mencing.on June 12, 1970, after the certification year had
expired, and does not raise any question regarding the Re-
spondent's fulfillment of its bargaining obligations prior to
the expiration of the certification year on May 13, 1970.
Hence, even though the Respondent's conduct in the last part
of the certification year might be regarded as inconsistent
with the requirements of Section 8(a)(5) of the Act, no finding
of an unfair labor practice may be based thereon because of
the failure of the complaint and the proceedings had thereon
to apprise the Respondent that the legality of its conduct
during this period was being challenged. However, since the
Respondent's defense to the refusal-to-bargain allegations of
the complaint is that after the expiration of the certification
it had reasonable grounds for doubting the Union's continu-
ing majority status, and since such a claim can be relied on
only if it is made in good faith, it is necessary to discuss
certain conduct of the Respondent towards the end of the
certification year which casts light on the Respondent's good
faith in asserting doubt as to the Union's majority status.
2. The Respondent's conduct within the certification year
As stated above, the Union was certified by the Board as
the exclusive bargaining representative of the Respondent's
employees on May 17, 1969. In the period from June to
December 1969, the respective bargaining committees met on
13 occasions and subsequently reached agreement on the
terms of a proposed collective-bargaining contract. As found
above, Attorney Granville Alley, Jr., was the Respondent's
principal spokesman in the negotiations and Union President
Goode and Vice President McWhorter were the principal
spokesmen for the Union.
However, on April 12, 1970, when the proposed contract
was submitted to union members at a union meeting for
ratification, the members rejected the contract. The next day
Union President Goode, with the approval of John Sheppard,
a representative of the International who was also on the
union negotiating committee, informed Director of Industrial
Relations Jones of the rejection of the contract. Pursuant to
Sheppard's instructions, Goode at the same time urged Jones
to arrange meetings to discuss the provisions of the contract
which concerned the employees.
A day or so later President Batzer commented to Goode
that he understood that Goode and his "forty man executive
committee"' had rejected the contract. After Goode replied
that the contract had been rejected at "a duly representative
meeting," Batzer asked Goode what he was concerned about
in the contract. Goode suggested that if Batzer and his repre-
sentatives "would sit down with us" he thought that "we
could work something out." Goode mentioned that he had
' Mayer testified that he had deep religious convictions and that on ° This was apparently a reference to the number of employees whom
previous occasions he had urged his employees to go to church Batzer had heard had attended the contract ratification meeting
PLASTILINE, INC.
talked to Jones about "getting together" and Batzer acknowl-
edged that he was aware of this.
On Wednesday, April 14, Jones called International Rep-
resentative Sheppard and informed him that Goode had re-
quested a meeting with the Respondent to discuss the em-
ployees' objections to the contract. Jones, as he testified, told
Sheppard that he had asked Goode to present an agenda of
the terms to be discussed at the meeting and if this was
satisfactory with his superiors , he would arrange the meeting.
However, Jones stated that he wanted it understood that
"this was not to be construed as a negotiating meeting " On
Thursday afternoon, Goode turned over to Jones a list identi-
fying the areas of the contract which the employees felt
needed to be improved. Eleven items in all were covered on
the list.
Messrs. Goode and Vick representing the Union met with
President Bryce Batzer , his father , Milton Batzer , the treas-
urer and the founder of the Respondent, and Director of
Industrial Relations Jones on April 17. Either Goode or Vick
discussed each of the items contained on the agenda. Com-
pany representatives asked questions about various items.
The meeting lasted 2 Y, to 3 hours. At the end of the meeting,
as Jones testified , President Batzer , after commenting that the
Respondent would take the matters raised under advisement,
stated, "[W]e will discuss this with our attorney, and we'll get
back to you."
About a week or 10 days later, not having heard anything
further from Jones, Goode asked Jones in his office as to the
Respondent's disposition of the questions which he had
raised concerning the proposed contract. Jones stated that he
had no further information at that time, but that he and his
superiors were considering their requests. Thereafter, Goode
spoke to Jones on several occasions about various matters
including the resolution of the differences between the parties
concerning the proposed contract. On one occasion early in
May, Jones told Goode, as the latter testified, that he "had
given the necessary information to our attorney, Mr. Alley,
to have the legal terminology worked out on some of our
contract problems." During one of these conversations about
the middle of May, Jones told Goode that he has "some
goodies for the employees" respecting the "wage performance
schedule," "vacations," and "holidays," if Goode would ap-
prove of them. Goode's answer was that he "thought that
within a couple of sessions in negotiating we could work this
out." Jones stated that he "certainly did not want to go into
another year of long and drawn out negotiations" and that
"he felt that it would be better if we could work something
out between us." The foregoing quotations are from Goode's
undenied testimony.
Despite Goode's repeated requests for information con-
cerning the disposition of the Union's objections to the con-
tract,' the Respondent did not at any time thereafter give any
answer to the questions which Goode and Vick had raised
about the proposed contract.
3. The Respondent's conduct after the expiration of the
certification year
a. The initial correspondence between the parties
The certification year expired May 13, 1970. The next
communication from the Respondent to the Union was a
letter sent by Attorney Alley to Thomas Dorsey, an attorney
for the Union, on May 25, 1970. The text of the letter is as
follows:
' Goode made a further request of Jones for the Respondent 's answer to
the Union 's objections to the proposed contract about the middle of July,
as Jones himself testified
371
I was very sorry to learn today that the union was not
going to execute the contract which the negotiators had
agreed to during the course of collective bargaining be-
cause the Union membership had rejected the contract.
The Company would like to make certain changes in
its wages , hours and working conditions but before do-
ing so would like to know whether or not your organiza-
tion desires to be advised of these changes and to negoti-
ate in regard to them.
If we do not hear to the contrary from you on or
before June 5, 1970, we will presume that you do not
desire to be notified or to negotiate concerning these
matters.
Attorney Dorsey answered Alley's letter on June 1, as
follows-
The Union still represents the employees at Plastiline,
Inc. and is desirous of negotiating relative to any changes
in its wages, hours, and working conditions.
Please contact me and we will arrange to meet at a
mutually convenient time.
b. The Company's June 18 challenge of the Union's
majority status; the June 23 meeting
After a telephone conversation between Attorneys Alley
and Doresey on June 18, a meeting between representatives
of the Union and the Respondent's representatives was ar-
ranged for the evening of June 23. This was done at Alley's
request. Alley confirmed this arrangement by letter dated
June 18. The letter concluded with the following paragraph:
We have received your earlier letter in which you state
the Union still claims to represent a majority of the
employees. We must inform you that we do not believe
that your organization represents a majority of the em-
ployees at Plastiline, Inc., and would expect you to come
forward with proof of this majority status at the sched-
uled meeting.
At the meeting on June 23 Attorney Alley and Jones repre-
sented the Respondent. Attorney Dorsey, Representative
Warren Conary of the Florida State Council of Carpenters,
Union President Robert Goode, and two other employees
represented the Union . The purpose of the meeting, as was
made clear by Alley, was to enable the Respondent to discuss
with the Union two changes in existing working conditions,
provided the Union offered fresh proof of its majority status
or would agree to do so in the near future. Attorney Dorsey
took the position, in effect, that the Respondent was still
bound by the certification, declined to furnish fresh proof of
majority status, and insisted that the Respondent bargain
further regarding the terms of a contract. Alley refused, say-
ing that the Respondent had proposed the meeting only for
the purpose of discussing the two changes, and refused also
to set a date for future bargaining meetings . In justification
of this position Alley asserted that the Respondent had evi-
dence that the Union no longer represented a majority and
indicated the kind of evidence the Respondent was relying
upon.
Although there were considerable bickering between the
spokesmen for the parties thereafter, their positions remained
the same until the end of the meeting, with the Respondent
taking the position that the Union no longer represented a
majority of the employees and the Union insisting that it was
still entitled to rely on the previous certification.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Director of Industrial Relations Jones' acts of
interference, restraint, and coercion
About the middle of June 1970, Director of Industrial
Relations Jones, after expressing doubts about the Union's
continuing majority status, told Union President Goode that
he thought that the employees would "be better off without
a big union" and asked him to consider urging the employees
to reject the Union and to support a decertification election.
Jones added that if Goode succeeded in persuading em-
ployees to abandon the Union he felt sure that Goode could
convince the outside union officials to drop their organizing
activities."
Frances Bedsole had a conversation with Jones when she
went into the office on July 1 to discuss her return from a
leave of absence. During the conversation Jones, after men-
tioning that the contract which the employees had rejected
was better than she thought it was, asked her, as Bedsole
testified, if she did not think "that we should get rid of the
International and form an independent union ." Jones further
suggested at this time that "she talk to the people about
... an oral contract and get them to accept one." Bedsole
refused, telling him that she thought the proposal was ridicu-
lous." Then after a discussion about the Union's present
majority standing, Jones according to Bedsole, asked her if
she would "start a petition for decertification " so as to resolve
the question of the Union's current majority. In the course of
this conversation, which lasted about 45 minutes, Jones also
stated that "the Union was holding us back from receiving
raises and other benefits such as shortening the workday of
certain departments.""
In early August, Jones had another conversation with
Goode in which Jones suggested that Goode consider taking
a position as his assistant to conduct a training program.
Goode said that he was not interested. Jones went on to say
that his first interest was the good of the majority of the
employees and that he thought that Goode should have the
same interest in the employees. Continuing, Jones stated, as
Goode testified, "I urge you to use your influence on these
employees to consider what we refer to as a company union
to draft up some kind of an oral agreement, something that
could be worked out and be more favorable for the people "12
On August 11, Jones told Recording Secretary Ray Vick,
in effect, that he could further his advancement in the Com-
pany if he took a position favoring an independent union in
the plant."
10 The foregoing findings are based on Goode's credited testimony As
found below, Bedsole also testified concerning Jones' effort to get her to start
a decertification petition Jones after first admitting that he had made a
statement to Goode to the effect that he thought that the employees would
be better off without a big union, later denied this, and also the remainder
of the conversation attributed to him by Goode I was more favorably
impressed by Goode's reliability as a witness than Jones' I credit Goode's
testimony upon which the above findings are based
11 Jones, in essence, denied making the statements attributed to him by
Bedsole Bedsole's testimony was so full of details that I am convinced that
she had a better recollection than Jones, who was hazy about some aspects
of this conversation I credit Bedsole's version
13 The above findings are based upon Goode's testimony As found
above, Bedsole testified about a similar suggestion made to her by Jones
Jones recalled certain aspects of the conversation but denied making any
mention of forming an independent union during the conversation I credit
Goode's testimony about this conversation
" This is Vick's testimony. Jones could not recall whether the subject of
unions came up during this conversation He did deny stating that union
affiliation was holding up Vick's progress in the Company As found, above,
both Goode and Bedsole testified to statements made to them by Jones
regarding the formation of an independent union Under all the circum-
stances I credit Vick's testimony in this regard
d. The final correspondence between the parties
Following the June 23 meeting an exchange of letters took
place between Attorney Alley and either Attorney Dorsey or
Representative Conary of the Florida State Council of Car-
penters, commencing with a letter from Alley to Dorsey on
July 9. In this letter Alley stated the Respondent's intention
to file an RM petition (an employer petition seeking an elec-
tion to determine the exclusive bargaining representative of
its employees, if any) and offered to continue bargaining pro-
viding that the execution of any contract be conditioned upon
the Union's making a fresh showing of majority status. In the
Union's response dated July 17, 1970, the Union reiterated its
position that the May 13, 1969, certification was still binding
upon the Respondent and that no further proof of majority
status was required. In the succeeding letters the parties'
positions remained essentially unchanged and no further bar-
gaining meeting resulted
On July 23, 1970, the Respondent filed with the Board's
Regional Office an RM petition.
Certain aspects of Alley's letters to the union representa-
tives deserve mention. On page 2 of Alley's letter of July 21,
1970, to Conary he states as follows.
. As to paragraph 4 of your letter, Mr. Conary, we
have no contract demands from you in our hands as
none of the Union representatives have submitted any to
us either in writing or during any official negotiating
session. So as to make the record clear, we had agreed
upon a contract which was submitted to the employees
for ratification on April 12, 1970, and turned down by
those few employees present at that meeting. Since that
time neither you nor your Union has made any request
to reopen negotiations, nor have you or your Union
submitted to the Company any new proposals upon
which we can negotiate
You and I both know that only one official negotiating
session has been held between the Company and the
Union since April 12, 1970. That session was held on
June 23, 1970. That meeting was called by me.
In Alley's letter of July 31, 1970, to Conary the following
appears:
... we also have bargained with you in good faith at all
times which you requested during the course of the cer-
tification year in an effort to reach agreement on a con-
tract. In fact, we agreed on a contract, but that contract,
as you know, was rejected by Plastiline employees at a
meeting held for that purpose on April 12, 1970. Since
that time, you have not made any other effort to negoti-
ate with me on the matter of a new contract.
It would also speed the progress of future negotiations
if you took the trouble to submit to us a new statement
as to the Union's position inasmuch as the agreement
previously reached has now been rejected . We have no
idea what new position , if any, your Union has taken.
In answer to this and a similar claim made in Alley's July
21 letter, Conary wrote back on August 5 in part as follows:
... If you will check with Mr. Jones and the Company,
you will find that he and the Company have been in-
formed of our position on the rejected contract and the
changes desired. The changes were presented a few days
following the rejection of the agreement
Finally, in Alley's letter to Conary dated August 7, 1970,
states in part as follows:
... The Company has met with your Union each and
every time your Union has requested to negotiate. Not
only has the Company met to negotiate, agreement was
reached on a complete contract . For the record, you
PLASTILINE, INC. 373
simply have not pursued negotiations in any diligent
manner since September, 1969. After the contract was
rejected on April 12, 1970, your Union did not request
a single meeting. The only meeting that was held was
held between Mr. Goode and several Company officials
on Company property. It was the intent of all present
that such was not to be a negotiating meeting, but was
merely for discussing some of the reasons why the em-
ployees refused to ratify the contract submitted to them
on April 12.
* * s s
Finally, I should make it clear that the Company has
not received any new and official Union position. The
meeting to which you make reference in the final para-
graph of your letter was held on April 17, 1970. At that
meeting it was understood by all present that the meet-
ing was not a negotiating session, but just a meeting
through which Mr. Goode and Mr. Vick informed the
Company as to the reasons underlying the employees'
refusal of the contract. This is the same meeting to which
I have made reference above. Eleven points were dis-
cussed at that meeting. No official Union position was
presented.
Mr. Conary, we both know that it was customary in
our negotiations to have official positions presented in
writing to the other party so that the record could be
kept straight. We did not receive such a position from
you following the April 12 rejection.
3. Conclusions concerning the Respondent's refusal to
bargain collectively
As found above, the Respondent bargained collectively in
good faith up until the time the respective negotiating com-
mittees reached agreement on the terms of a proposed con-
tract sometime prior to April 12, 1970. But from the time the
employees voted to reject the proposed contract the Respond-
ent adopted a wholly different approach.
Upon being informed by Union President Goode of the
rejection of the contract, the Respondent acquiesced in a
meeting to consider the objections to the proposed contract,
but insisted that this meeting, which was held on April 17,
was not to be considered an "official" negotiating meeting.
While President Bryce Batzer, Treasurer Milton Batzer, and
Director or Industrial Relations Jones listened to the Union's
presentation of the employees' objections to the proposed
contract for over 2% hours and discussed various of the points
raised by the Union, they refused to commit themselves on
any point. Attorney Alley, who had previously been the Re-
spondent's principal spokesman in the negotiations, was not
present at the meeting on April 17. At the end of the meeting
President Batzer stated that the Respondent would com-
municate with its attorney about the matters raised and re-
port back to the Union This is the testimony of the Respond-
ent's own witness, Jones.
Despite this statement by the Respondent's president to
Union Officers Goode and Vick, both members of the union
negotiating committee, the Respondent never did give the
Union any answer to the objections stated at the meeting.
Goode's prodding of Jones for an answer about 10 days later
was to no avail. Also ignored were Goode's subsequent re-
quests for information regarding the differences between
them. Instead the Respondent did nothing with respect to its
bargaining obligation in the almost 4 weeks remaining in the
certification year. Thereafter, the Respondent took the posi-
tion that the Union no longer represented a majority and
refused to bargain further unless the Union furnished fresh
proof of its majority status, or would agree to do so promptly.
The Respondent's first move after the certification year
expired was Attorney Alley's letter to Attorney Dorsey dated
May 25, 1970. In this letter Alley totally ignored the fact that
Union President Goode had fully explained the Union's ob-
jections to the proposed contract to the Respondent's top
officials about a month earlier, had kept after Jones thereafter
for an answer, and was awaiting a statement of the Respond-
ent's position. Instead Alley proceeded on the unwarranted
assumption that the Union was no longer interested in repre-
senting the employees and appears to have been merely seek-
ing confirmation of this fact. In the letter Alley stated that he
was "very sorry to learn today that the Union was not going
to execute the contract." While the statement may be techni-
cally accurate, the implication of this statement is that Alley
had just been informed of the rejection of the contract over
a month earlier and of the subsequent discussions between the
parties. For the reasons discussed in the note below, I cannot
believe this to be the case." The reason for Alley's dissem-
bling of this manner is not quite clear. Whatever may be the
reason it is consistent with the approach taken thereafter by
the Respondent in its relations with the Union, i.e., of treating
the communications between Goode and Vick and the Re-
spondent's top officials at the April 17 meeting as though they
never happened, or at least as not representing official posi-
tions of the Union casting an obligation on the Respondent
to respond. This approach was foreshadowed by the Re-
spondent's insistence that the April 17 meeting not be re-
garded as an official negotiating meeting.
The next formal communication between the parties was
Alley's letter to Union Attorney Dorsey of June 18 in which
he challenged the Union's majority status. The meeting of
June 23 which followed merely confirmed the fact that the
Respondent was taking the position that it would require
fresh proof of majority status from the Union before the
Respondent would participate in further negotiations.
In Alley's letter to Representative Conary dated July 21,
he stated that the Respondent had received no contract de-
mands from the Union since the April 12 meeting "either in
writing or during any official negotiating session." Later in
the letter Alley stated that the Union had not made any
request to reopen the negotiations or offered any new propos-
als for negotiation. In Alley's letter to Conary dated July 31,
Alley states that since April 12 Conary had made no effort
to negotiate with the Respondent regarding a new contract.
Included in this letter is the further statement that "We have
no idea what new position, if any, your Union has taken." In
Alley's letter to Conary dated August 7 he reiterated that the
Union "did not request a single meeting" after the contract
was rejected on April 12 and that "No official union position
was presented" at the April 17 meeting.
The foregoing excerpts from Alley's letters to the Union
make it abundantly clear that the Respondent has taken the
position that the requests of Union President Goode for a
meeting to discuss the Union's objections to the proposed
contract, that the statements of Goode and Vick to the Re-
" As found above, Director of Industrial Relations Jones testified that
President Batzer stated at the end of the April 17 meeting that he would
discuss the matters raised with the Respondent's attorney and report back
Early in May, Jones told Goode that he had given Alley the necessary
information to enable him to work out the legal terminology covering some
of their contract problems It would be contrary to the normal practice
between client and attorney in these bargaining situations for the Respond-
ent's top officials not to have promptly informed Alley, the Respondent's
attorney and principal spokesman in the negotiations, of the developments
following the employees' rejection of the proposed contract And it would
have been clearly inconsistent with the Respondent's obligations under Sec
8(a)(5) of the Act for the Respondent not to have communicated this infor-
mation to its attorney
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent 's top officials at the April 17 meeting concerning
the objections to the proposed contracts , and that Goode's
subsequent efforts to obtain the Respondent 's answer to the
Union 's objections are of no significance and do not raise any
obligation on the Respondent 's part to respond thereto. For
obviously if these actions of Goode and Vick are taken into
account it simply is not true, as Alley repeatedly stated in his
letters, that the Respondent has not at any time since the
April 12 meeting received any request from the Union to
reopen the negotiations or received any new proposals for
negotiation . In view of the fact that Union President Goode
and Recording Secretary Vick spent over 2Y2 hours at the
April 17 meeting discussing with the two Batzers and Jones
the Union 's objections to the proposed contract , I am wholly
at a loss to understand counsel 's statement that "We have no
idea what new position , if any your Union has taken."
The Respondent had no valid reason for treating Goode's
actions in requesting a meeting to discuss the Union 's objec-
tions to the proposed contract , his statements of position at
the April 17 meeting , and his subsequent requests of Jones for
the Respondent 's answer to the Union 's objections as not
representing official union action . Goode was a member of the
official union negotiating committee and he served as one of
the main spokesmen for the Union at the negotiating meet-
ings. Having attended the meeting at which the contract was
rejected and having heard the discussions there, Goode was
well equipped to voice the employees ' objections to the con-
tract . There is no suggestion in the record that Goode in
presenting the Union 's objections was acting contrary to the
authority of the Union.
The Act does not allow either of the parties to bargaining
negotiations the prerogative of determining who shall be the
official spokesman for the other or the manner in which com-
munication shall be had. Yet in taking the position that
Goode's actions were not official union actions the Respond-
ent was attempting to exercise this very prerogative.
The Respondent 's action in failing to respond within a
reasonable time to Goode's statement of the Union 's position
regarding the Respondent 's proposed contract was inconsist-
ent, in my opinion , with the fulfillment of the Respondent's
obligations under Section 8(a)(5) of the Act Goode's re-
peated requests for an answer to the Union 's statement of
position, even without the Respondent 's acquiescence
therein , were sufficient to cast upon the Respondent the bur-
den of taking the next step in the negotiations , i.e., of respond-
ing in some manner to the Union 's objections to the proposed
contract or seeking clarification thereof . This the Respondent
failed to do.
The Respondent 's sole defense to the refusal -to-bargain
allegations of the complaint is that it believed that the Union
no longer represented a majority of the employees in the
appropriate unit, a belief which the Respondent asserts is
supported by the "objective considerations " detailed in its
brief. It is true, as the Respondent states, that after the end
of the certification year "an employer may lawfully refuse to
bargain" "if it can show by objective facts that it has a reason-
able basis for believing that the Union has lost its majority
status since its certification ." United States Gypsum Com-
pany, 157 NLRB 652 , 655. However , as this case makes clear,
for this defense to be available , the employer must be acting
in good faith and must have refrained from any conduct
tending to dissipate the union's majority status. Gypsum case,
157 NLRB at 656. See also Celanese Corp., 95 NLRB 664,
672; Laystrom Mfg. Co., 151 NLRB 1482 , 1483-84, set aside
on other grounds 359 F.2d 799 (C.A.7); N.L.R.B. v. Gulf-
mont Hotel Co., 362 F.2d 588, 589, 592 (C.A.5); N.L.R.B. v.
Little Rock Downtowner, Inc., 414 F.2d 1084, 1090-1091
(C.A.8); Terrell Machine Co., 173 NLRB No. 230, and cases
cited in footnote 5 thereof.
The evidence, in my opinion, establishes that the Respond-
ent was not acting in good faith in asserting a doubt of the
Union's continuing majority status . The Respondent was not
acting in good faith when it refused to treat Union President
Goode 's requests for a meeting, his statement of positions at
the April 17 meeting, and his subsequent requests for the
Respondent's answer to the objections voiced by him at the
April 17 meeting as official union action. While Goode may
not have had the authority to bind the Union to the terms of
a collective-bargaining contract, he clearly had the authority
to act as its,spokesman. There is no legal basis for the Re-
spondent's failure to treat him as such. Indeed, had the com-
plaint contained an allegation that the Respondent violated
Section 8(a)(5) and ( 1) of the Act by its conduct in failing to
make any response to Goode's statement of position at the
April 17 meeting and his repeated requests for an answer,
such conduct, which occurred before the certification year
expired , might have justified a finding of a refusal to bargain
collectively.
Had the Respondent fulfilled its statutory obligations in the
final weeks of the certification year and discussed with the
Union its objections to the proposed contract, the parties
might possibly have reached an agreement and thus would
have been avoided any defections from the Union resulting
from dissatisfaction that no contract had been arrived at.
After the Respondent asserted its alleged doubt of the
Union 's majority status, it continued to take the unwarranted
position in its letters to the Union that Goode was not an
official spokesman for the Union and that hence it had no
obligation to respond to any of his requests, and it continued
to assert that the April 17 meeting was not an official nego-
tiating meeting.
I am convinced in view of the Respondent's entire course
of conduct commencing with the employees' rejection of the
proposed contract on April 12, that the Respondent's manner
of handling the April 17 meeting-its insistence upon the
understanding that the meeting was not an "official" nego-
tiating meeting , the Respondent 's willingness to proceed in
the absence of Attorney Alley, and the failure of the Re-
spondent's top officials to commit themselves regarding any
part of the Union's objections-and the Respondent's subse-
quent failure, within the remainder of the certification year,
to take any action with respect to Goode's statement of posi-
tion regarding the proposed contract were parts of a strategy
contrived by the Respondent to delay resolution of the differ-
ences between the parties as to the terms of the proposed
contract until such time as it would be free to question the
Union's majority status The Respondent's subsequent chal-
lenge of the Union 's majority status and its continued insist-
ence upon the unfounded position that Goode did not speak
for the Union and hence could not raise any obligation on its
part to respond were part and parcel of the Respondent's
scheme to avoid further bargaining with the Union. The
adoption of such a scheme is manifestly incompatible with
good faith dealing with the Union.
Director of Industrial Relations Jones' efforts commencing
about the middle of June to induce three members of the
union negotiating committee to drop the Union , to start a
decertification petition, or to consider an oral contract with
an independent union further evidence the Respondent's fail-
ure to act in good faith in its relations with the Union.
In view of all of the foregoing evidence, I conclude that the
Respondent was not acting in good faith in questioning the
Union's majority status commencing on July 18, 1970. Ac-
cordingly, under the authorities cited above, the Respond-
ent's defense that it had reasonable grounds for believing that
PLASTILINE, INC
the Union had lost its majority status since its certification
fails. The Union's majority status must be deemed to continue
at least for a reasonable period after bargaining relations
between the Respondent and the Union have been reestab-
lished.
In the view of this case which I have taken, I do not reach
the further question whether the factors relied upon by the
Respondent as justifying its doubt of majority status consti-
tute the kind of "objective considerations" which the Board
has held must support a claim of this nature.
4. Conclusions concerning Respondent's interference,
restraint and coercion
As found above, about the middle of June, Director of
Industrial Relations Jones asked Union President Goode to
persuade employees to reject the Union and support a decer-
tification election. On July 1, Jones made a similar request of
Frances Bedsole, a member of the union negotiating commit-
tee. In the conversation with Bedsole, Jones blamed the Un-
ion for the failure of the employees to receive certain benefits,
although it was the Respondent's failure to bargain collec-
tively with the Union in good faith which was responsible for
the employees' failure to receive the benefits in question.
Later on, after offering Goode a transfer to a managerial
position, Jones urged Goode to persuade employees to accept
an oral agreement with an independent union as an alterna-
tive to a contract with the Union. Still later Jones told Re-
cording Secretary Vick in effect that his prospects for ad-
vancement in the Company would be enhanced if he favored
an independent union.
Jones' requests and statements to these three union offi-
cials, which were aimed at inducing them to abandon the
Union and advocate among their fellow workers the forma-
tion of an independent union-requests which on two occa-
sions were accompanied by veiled promises of benefits-con-
stituted interference, restraint, and coercion of employees in
the exercise of Section 7 rights, and therefore violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By its action commencing about the middle of June
1970, in requesting employees to persuade their fellow work-
ers that they abandon the Union, Broward County Carpen-
ters District Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and support a decertification
election, in requesting employees to persuade their fellow
workers to accept an oral agreement with an independent
union as an alternative to a contract with the Union, in
making veiled offers of benefits to employees to induce the
requested action, and in falsely blaming the Union for the
employees' failure to receive certain benefits, the Respondent
has interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices in violation of
Section 8(a)(1) of the Act.
2. All production, maintenance, warehouse, and shipping
department employees, all truckdrivers, tool and die em-
ployees, machinists, stockroom employees, laborers, helpers,
apprentices, plant clerical employees, and leadmen at the
Respondent's plant at Pompano Beach, Florida, excluding all
other employees, including all office clerical employees,
expediters, guards, professional employees and supervisors as
defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section
9(b) of the Act.
3 At all times since May 13, 1969, the Union has been and
now is the exclusive certified representative of all employees
in the above-stated appropriate unit for the purpose of collec-
375
tive bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
4. By its actions stated in paragraph 1 above and by assert-
ing doubt of the Union's majority status in bad faith and
refusing on and after June 18, 1970, to bargain collectively
with the Union as the exclusive bargaining representative of
the employees in the appropriate unit stated in paragraph 2
above, the Respondent has thereby engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act by its conduct after the certification year
expired, my Recommended Order will direct that the Re-
spondent'cease and desist from such conduct and from like
and related forms of interference, restraint, and coercion.
Affirmatively, my Recommended Order will provide that the
Respondent, upon request, bargain collectively with the Un-
ion as the exclusive representative of all employees in the
aforesaid appropriate bargaining unit.
Upon the foregoing findings and conclusions and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following:
RECOMMENDED ORDER15
The Respondent, Plastiline, Inc., Pompano Beach, Florida,
its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Broward County Carpenters Distract Council, United Broth-
erhood of Carpenters and Joiners of America, AFL-CIO, as
the exclusive representative of all employees in the appropri-
ate unit stated below.
(b) Requesting employees to persuade their fellow em-
ployees that they abandon the above-named labor organiza-
tion and support a decertification election or that they accept
an oral agreement with an independent union as an alterna-
tive to a contract with the above-named labor organization.
(c) Making offers of benefits to employees to induce them
to take the action stated above.
(d) Falsely blaming the Union for the employees' failure to
receive certain benefits.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the above-named labor organization as the exclusive repre-
sentative of all employees in the appropriate unit stated below
with respect to wages, hours, and other terms and conditions
of employment, and if an understanding is reached, embody
such understanding in a signed agreement:
All production , maintenance , warehouse and shipping de-
partment employees, all truck drivers, tool and die- em-
ployees, machinists, stockroom employees, laborers, helpers,
apprentices, plant clerical employees and leadmen at the Re-
spondent's plant at Pompano Beach, Florida, excluding all
" In the event no exceptions are filed to this Recommended Order as
provided in Sec 102 46 of the Rule% and Regulations of the National Labor
Relations Board, the findings, conclusions, and Recommended Order herein
shall, as provided by Section 10(c) of the Act and in Sec 102 48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
sions, and order, and all objections thereto shall be deemed waived for all
purposes
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees, including all office clerical employees,
expediters, guards, professional employees and supervisors as
defined in the Act.
(b) Post at its plant at Pompano Beach, Florida, copies of
the attached notice marked "Appendix "16 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 12, after being duly signed by the Respondent's repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable 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 12, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith."
3. The allegations of the consolidated amended complaint
concerning the discharge of Charles McWhorter are hereby
dismissed.
16 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
" In the event that this Recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read
"Notify said Regional Director, in writing, within 20 Goys from the date of
this Order what steps the Respondent has taken to comply herewith "
APPENDIX
cal employees and leadmen at the Respondent's
plant at Pompano Beach , Florida, excluding all
other employees , including all office clerical em-
ployees, expediters , guards, professional employees
and supervisors as defined in the Act.
WE WILL NOT request employees to persuade their
fellow employees that they abandon Broward County
Carpenters District Council , United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and sup-
port a decertification election or that they accept an oral
agreement with an independent union as an alternative
to a contract with Broward County Carpenters District
Council , United Brotherhood of Carpenters and Joiners
of America , AFL-CIO.
WE WILL NOT make offers of benefits to employees to
persuade them to take the action stated above.
WE WILL NOT falsely blame Broward County Carpen-
ters District Council , United Brotherhood of Carpenters
and Joiners of Amenca , AFL-CIO, for the employees'
failure to receive benefits.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL , upon request, bargain collectively in good
faith with Broward County Carpenters District Council,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive bargaining repre-
sentative of the employees in the appropriate unit, and
if an understanding is reached we will sign a contract
with it.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in good
faith with Broward County Carpenters District Council,
United Brotherhood of Carpenters and Joiners of
Amenca, AFL-CIO, as the exclusive representative of
the employees in the unit stated below-
All production, maintenance, warehouse and
shipping department employees, all truck drivers,
tool and die employees, machinists, stockroom em-
ployees, laborers, helpers, apprentices, plant cleri-
PLASTILINE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
826, Federal Office Building, 51 SW. First Avenue, Miami,
Florida 33130, Telephone 305-350-5391.