Polyurethane Products Co., Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1967

168 N.L.R.B. 98 (N.L.R.B. 1967)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Polyurethane Products Company, Inc., and
International Chemical Workers Union,
AFL-CIO. Case 14-CA-4181
November 6, 1967
DECISION AND ORDER
By MEMBERS FANNING, JENKINS , AND ZAGORIA
On July 19, 1967, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a brief in support thereof. I
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 this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the Respondent's exceptions, and the en-
tire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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 Respondent, Polyurethane Products
Company, Inc., East St. Louis, Illinois, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.
I The Respondent's request for oral argument is hereby denied as, in
our opinion , the record , including the exceptions and beef, adequately
present all the issues herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE PROCEEDING
GEORGE J. BOTT, Trial Examiner: Upon a charge of
unfair labor practices filed by International Chemical
Workers Union, AFL-CIO, herein called Union, on
December 22, 1966, against Polyurethane Company,
Inc., herein called Company or Respondent, the General
Counsel of the National Labor Relations Board issued a
complaint on February 9, 1967, which was amended on
March 1, 1967, in which he alleged that Respondent had
engaged in unfair labor practices in violation of Section
8(a)(1) and (5) of the National Labor Relations Act, as
168 NLRB No. 20
amended, herein called the Act. Respondent's answer ad-
mitted certain allegations of the complaint but denied the
commission of any unfair labor practices. A hearing was
held before me in St. Louis, Missouri, on April 10 and 11,
1967. Subsequent to the hearing, General Counsel and
Respondent filed briefs which I have considered.
Upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent has its principal office in St. Louis, Mis-
souri, and also maintains a plant in East St. Louis, Il-
linois, where it is engaged in the production of molded
rigid polyurethane foam pipe insulation. During the year
ending December 31, 1966, which is a representative
period, Respondent, in the course of its business opera-
tions, manufactured, sold, and distributed at its East St.
Louis plant, which is the only plant involved in this
proceeding, products valued in excess of $50,000 of
which products valued in excess of $50,000 were shipped
from said plant directly to points outside the State of Il-
linois. Respondent is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. AllegedActs of Interference, Restraint , and Coer-
cion in Violation of Section 8(a)(1) of the Act
1. The setting
Respondent opened its East St. Louis plant sometime
in early 1965, and, until the summer of 1966, was engaged
mostly in the development of its product, methods, and
machinery. After Respondent received a large order in
August 1966, it hired a substantial number of additional
employees and began to work three shifts which it main-
tained until mid-December 1966, when it discontinued
the second and third shifts and laid off approximately 15
employees because of the completion of the order it had
obtained in August. It is not clear from the record exactly
when the Union started to organize the Company's em-
ployees, but a few union authorization cards were signed
in August and September 1966 and a substantial number
in December. It is clear, however, that by December 13
the Union had obtained union authorization cards from a
majority of the approximately 37 unit employees then em-
ployed, and, on that date wrote Respondent and asked for
statutory recognition. It also is a fact that the Union dis-
tributed union literature and application cards at Re-
spondent's plant on December 14, and that Respondent
received the Union's demand for recognition sometime
during the day on December 15. The complaint alleges a
substantial number of violations of Section 8(a)(1) of the
Act, occurring in December 1966, engaged in by Re-
spondent's plant manager, Wendt, an admitted agent, and
POLYURETHANE PRODUCTS CO., INC. 99
Sammie Connor, an alleged supervisor, whose status as
such is denied, and must be disposed of first.
2. Supervisory status of Sammie Connor
Respondent claims that Connor is a leadman or an in-
structor, not a foreman or supervisor. Wendt testified that
Connor has no power to hire or fire, and he and Milton
Litz, Respondent's president, said he was one of the first
employees hired at the East St. Louis plant; that he was
hired as an unskilled laborer, but Wendt taught him how
to perform the process by which the product is manufac-
tured; that, as new employees were hired, Connor taught
them how to perform their duties in production but also
continued to do production and minor machinery repairs
himself.
Although Connor may not have the power to hire or
fire and does instruct and work with employees on occa-
sion, I find that he has enough of the indicia of a super-
visor set out in Section 2(11) of the Act to qualify as one
under that section. This finding is based on the uncon-
tradicted testimony of many employees. The record
shows that during an employee meeting in the plant in
September 1966, Wendt, in Litz' presence, announced
that Connor was "boss" and employees should consult
him if they had any problems. Wendt also stated at the
same time that Connor had authority to send employees
home from work if they did not do what Connor told them
to do.'
Connor plays a part in the hiring of employees. He has
effectively recommended applicants for employment, and
he has called laid-off employees back to work.2
Connor has actually exercised the powers which
Wendt said he had in the September meeting with em-
ployees. He has, for example, sent employees home for
loafing, arguing , or for reporting to work without permis-
sion.3
A substantial number of employees described Connor
as a "boss" or a "foreman," and it appears that he trans-
fers employees from job to job and assigns work to them.4
Connor has granted employees permission to leave the
plant and has adjusted their grievances.5
It is well settled that Section 2(11)'s list of supervisory
indicators is to be read in the disjunctive.6 I find, on the
basis of the entire record, that Connor has the authority,
in the interest of Respondent, • using independent
judgment, to assign, direct, transfer, discipline, and adjust
the grievances of employees, and, in addition, to effec-
tively recommend their hire, suspension, or recall. Hav-
ing at least such authority, Connor is a supervisor within
the meaning of the Act.
3. Interrogation of Employees
Respondent interrogated a substantial number of em-
ployees about their union activities. Plant Manager
Wendt asked employee German on December 15, 1966,
if he had received a union leaflet and application card
which the Union had distributed. He denied that he had,
and, a few days later, Connor told him that Wendt wanted
to know if he had signed a union card. German then ad-
mitted that he had.
Connor also asked employee Watson on December 15
if he had received an application card from the Union,
and he told the employee that the Company did not need
a union, that employees were better off without one, and
that Wendt was "kind of mad about it."
Employees Triplett and Randle were interviewed by
Connor and Wendt in late December 1966 and were
asked if a Board agent had come to their homes and what
they had told the agent. Connor also asked each em-
ployee if he had signed a union card, and, when they ad-
mitted that they had, Connor said it would make no dif-
ference because they could vote against the Union in an
election.
On December 15, Wendt, after first asking employee
Johnson if she had signed a union application card and
receiving a negative reply, told her not to do so, but to
"stick with the Company and she would go places." The
next day, Connor sent Johnson to see Wendt in his office
where Wendt asked her who had started the union activi-
ty.
Employee Agnes Connor was asked by Wendt on
December 14 if she had received one of the leaflets and
authorization cards distributed by the Union that day.
Another employee, Mary Canada, visited the plant on
December 16, which was the day after she was laid off,
and Connor sent her to see Wendt who asked her if she
had signed a union card, whether she had ever been a
union member, and what she thought a union could do for
her. During the conversation, Wendt said that his superi-
ors did not want a union.
Ruth Hobson was also laid off on December 15, and,
when she saw Wendt shortly thereafter, he told her he did
not like what was going on. Hobson asked him what he
meant and he answered "union ." When Hobson asked,
"what union," Wendt said she knew. Hobson then
handed Wendt a union card which she had received.
Respondent's interrogation of employees served no
legitimate purpose and was not accompanied by the
safeguards established in the Blue Flash decision.? I find
that it was coercive and that Respondent thereby violated
Section 8(a)(1) of the Act.8
4. Creating the impression of surveillance
Respondent also created the impression that it had the
union activities of its employees under surveillance. In
Dora Johnson's case, after asking her who started the
Union, Wendt commented that he thought it had started
on the second shift. A few days later, Wendt told Johnson
that he had seen employee Mendola Smith, a friend of
Johnson, at a union meeting.
Employee Doris Watson said that Wendt described her
Testimony of employees Charlene Brown and Mendola Steward.
i Testimony of Lidell Hall and Archie Triplett.
3 Testimony of Hall, Lavelle Bean , Steward , and Dons Watson
4 Testimony of Mary Canada, Hall, Wanda Steele, Doris Watson, Gary
Watson , and Dora Johnson.
Testimony of Genevieve Watson , Mattie Lockett , and Bean.
e Ohio Power Company v. N.L R.B , 176 385 (C.A. 6), cert denied 338
U.S. 899.
Blue Flash Express , Inc, 109 NLRB 591; see also Struksnes Con-
struction Co , Inc , 165 NLRB 1062
8 N.L.R.B v. Mid-West Towel and Linen Service, 339 F 2d 958, 961
(C.A. 7) It is well known that it is the tendency of an employer's conduct
to interfere with employee rights, rather than his motive , that is con-
trolling, and "his words must be judged by their likely import to em-
ployees." So, therefore if Wendt' s questioning was done in ignorance of
the law or contrary to legal advice, this is no defense . Wausau Steel Corp.
v. N.L.R B, 377 F.2d 369 (C A 7), N.L.R.B. v. La Salle Steel Co, 178
F 2d 829, 833-834 (C A 7), Welch Scientific Inc v N.L.R.B., 340 F.2d
199,203 (C.A. 2).
336-845 0 - 70 - 8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to other employees as his "union girl." Wendt had also in-
terrogated her earlier about signing a card for the Union.
Employee Wanda Steele corroborated Watson. She said
that during December 1966 Wendt called Watson and
employee Helen Edwards his "little union girls."
I find and conclude that by these remarks of Wendt,
Respondent created the impression that it was keeping
the union activities of its employees under surveillance.
By such conduct, Respondent violated Section 8(a)(1) of
the Act.9
5. Promises of benefits
B. The Refusal to Bargain
1. The appropriate unit
The complaint alleged, the answer admitted, and I find
that:
All production and maintenance employees of
Respondent employed at its East St. Louis, Illinois,
plant EXCLUDING office clerical, professional em-
ployees, guards and supervisors as defined in the Act
constitute a unit for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
Sometime in December 1966, Wendt told employees
Wanda Steele and Agnes Connor that they were eligible
for a raise in pay but that he could not give them or any-
one else an increase "until the union activity was settled."
As set out earlier, Wendt promised employee Johnson
that she would "go places" with the Company if she did
not join the Union. By such promise, and by indicating to
Steele and Connor that -union activity was preventing
their promotions, Respondent was attempting to induce
employees to abandon the Union by holding out the hope
of reward if they did so. By such conduct, Respondent
also violated Section 8(a)(1) of the Act.
6. Threats of reprisal
Charlene Brown had a conversation with Wendt in
September 1966 in which she told him that she had heard
that there was going to be a union at the Company. Wendt
replied that there would be no union, but that if there
should be, he would "walk out." Although not a separate
unfair labor practice because it happened in 1965 long be-
fore the filing of charges, but nevertheless an indication
of Wendt's union animus, Wendt told the same employee
that any employee who wanted a union could "leave
now.,,
Employee Davenia Roberts was laid off in December
1966. Supervisor Connor told her at that time that he had
discovered that her sister had started the Union, and,
since Roberts had not reported it to him, she "would have
to go too."
Connor also told employee Watson in December 1966,
after he had asked her if she had signed a union card, that
it was not "time for" a union because the Company could
not afford it. He added that before the Respondent would
permit a union to organize its employees it would close
the plant.
By indicating to employees that a top official would
"walk out" if a union were successful, by threatening to
close the plant for the same reason, and by attributing em-
ployee Roberts' layoff to her sister's union activity, even
if they were unconnected, Respondent engaged in addi-
tional violations of Section 8(a)(1) of the Act.10
0 Ainsworth Manufacturing Company, 131 NLRB 273
10 A substantial layoff occurred on December 15 and the Union filed a
charge that it was discriminatory, but the General Counsel refused to
issue a complaint based on it
" Rea Construction Company, 137 NLRB 1769.
z Christine McClodden, November 29, 1966, G C. Exh. 4, Davenia
Roberts, November 29, 1966, G.C Exh 5, Ivia Trice, December 9,
1966, G C. Exh. 6, Ora Garner, December 9, 1966, G.C Exh. 7, Willie
Randle, December 12, 1966, G C Exh 8, Lidell Hall, December 1,
1966, G C. Exh. 9, Simon Haynes, August 12, 1966, G.C Exh 10, Wil-
liam Smith , December 10, 1966, G C. Exh. 11; Charles Connor,
December 1, 1966, G C Exh. 12, Terry German, December 1, 1966,
2. The Union's majority status
Sometime before noon on December 15, 1966,
Respondent received a letter sent by the Union on
December 13 advising Respondent that a substantial
majority of employees in the bargaining unit had
authorized the Union to represent them and demanding
recognition as the sole collective-bargaining agent of
those employees. The Union also stated in its letter that
it was prepared and willing prove its claim to Respond-
ent's satisfaction. Since the Union's communication was
received on December 15, that is the so-called critical
date upon which it must be shown that the Union had
majority status."
Not counting employee Agnes Connor, whose card is
of questionable validity in the light of her testimony, as of
December 13, 23 of the unit employees had signed valid
union authorization cards designating and selecting the
Union as their statutory representative. The names of
these employees, the dates on which they executed the
authorization, and the exhibit numbers are set forth in the
margin. Each signer, except McClodden whose card went
into the record by stipulation, identified his own card.12
It was stipulated at the hearing that as of 7 a.m.,
December 15, there were 36 employees in the ap-
propriate unit, not including Sammie Connor whose
status was in dispute. Since Connor has been found to be
a supervisor, he is not to be included for the purpose of
computing the Union's majority. The Union, therefore,
had a clear majority of the 36 employees in the unit on the
morning of December 15.13
Sometime after 7 a.m. on December 15, however,
Respondent decided to reduce its staff and it did, on that
day, lay off 15 unit employees. It appears from Wendt's
uncontradicted testimony that he made the decision when
he arrived at the plant on the morning of December 15
and got a report "from the night shift about production."
The second and third shifts were then canceled, and em-
ployees telephoned at home and informed about it. It also
appears, as found above, that the Union's demand for
recognition was received by Wendt at approximately 11
a.m. or noon on December 15. The reduction in the size
G.C Exh 13; Mary Canada, December 1, 1966, G C. Exh. 14, Dora
Johnson, December 7, 1966, G.C Exh 15, Myra Nash , September 1,
1966, G C Exh 16, Wanda Steele , August 23 , 1966, G C. Exh 17,
Dons Watson , September I, 1966, G.C Exh 18, Gary Watson, Sep-
tember 1, 1966 , G C Exh 19, Lavelle Bean, December 9, 1966, G.C.
Exh. 20, Sarah Griffin, December 1, 1966, G C Exh. 21, Mary Dixon,
December 1, 1966, G C. Exh. 22, Edna Brown, December 7, 1966, G.C.
Exh 23; Mattie Lockett , December 12, 1966, G C Exh 26, Archie
Triplett, December 12, 1966, G.C Exh. 27, Ruth Hobson , November
29,1966,G.C Exh.28
11 G.C Exh 3 is the list of unit employees as of that time
POLYURETHANE PRODUCTS CO., INC.
of the unit on December 15 must be considered for what-
ever bearing it may have on the U nion 's majority.
Of the 15 unit employees laid off on December 15,14 9
had signed union authorization cards 15 It was also stipu-
lated that of the 15 unit employees laid off on December
15, 6 were recalled and 9 were not.1e Included in the six
employees laid off on December 15 and thereafter re-
called, were four cards signers." Of the nine employees
laid off on December 15 and not recalled, five had signed
cards for the Union.18
Although Respondent virtually completed a very large
order just prior to the December 15 layoff, has partially
mechanized its production line, suffered another reduc-
tion in force in March 1966, and, at the time of the hear-
ing, had very little business, it appears that the 15 em-
ployees laid off on December 15 were not permanently
laid off but rather had a reasonable expectancy of recall.
Nine of them were actually recalled, and Wendt testified
that he told employees laid off that they would be recalled
if needed. He said that the Company "anticipated" or-
ders, and he agreed that the Company had not hired new
employees, but had recalled those laid off as needed. I
find, therefore, that the employees laid off on December
15 were temporarily laid off and are to be included in the
unit for the purpose of computing the Union's numerical
status. But even assuming that all 15 employees laid off
on December 15 were laid off permanently, and assuming
that their employment was severed before Respondent
received the Union's demand for recognition - which is
not at all clear - the Union would still have represented
14 employees in a unit of 21. If the employees were tem-
porarily laid off, as I have found, then the Union
represented 23 of a unit of 36 employees. I find, there-
fore, that the Union was the majority representative of
Respondent's employees in the appropriate unit on
December 15, when Respondent received its recognition
request, regardless of the status of the laid-off employ-
ees.'8
3. The demand and the refusal
On December 13 the Union wrote a letter to Respon-
dent which it received on December 15, advising
Respondent that it represented a majority of its em-
ployees and demanding that Respondent recognize it as
the sole collective -bargaining agency for the employees.
The Union also offered to prove to Respondent's
satisfaction that it did represent a "substantial majority"
14 It was stipulated that certain employees were not laid off, and it ap-
pears, therefore that the following is an accurate list of those who were
Mary Dixon , Lidell Hall , Doris Pate, Elsie Little , Ruth Hobson, Willie
Randle, Gary Watson, Christine McClodden , Loretta Beggs, Earl Fox-
worth , Delons Wilson , Jesse Haselroth , Davema Roberts, Mary Canada,
and Charles Connor
15 The nine card signers laid off sometime during the day on December
15 were Mary Dixon , Lidell Hall, Ruth Hobson , Willie Randle, Gary
Watson, Christine McClodden , Davenia Roberts, Mary Canada, and
Charles Connor.
18 Those recalled were . Mary Dixon, Lidell Hall, Doris Pate , Elsie Lit-
tle, Ruth Hobson , and Willie Randle Those not recalled were: Gary Wat-
son, Christine McClodden, Loretta Beggs , Earl Foxworth, Delons Wil-
son, Jesse Haselroth , Davenia Roberts, Mary Canada , and Charles Con-
nor.
17 Mary Dixon , Lidell Hall , Ruth Hobson , and Willie Randle
18 Gary Watson, Christine McClodden, Davema Roberts, Mary
Canada , and Charles Connor.
10 It has been noted that of the 15 employees laid off on December 15,
6 were thereafter recalled and 9 were not If it be considered that only the
6 recalled were temporarily laid off, then since 4 of them had signed union
cards, the Union would have 18 employees who designated it as their bar-
101
of employees in an appropriate unit, and it asked for an
immediate reply to its request. The letter concluded by
stating that if Respondent did not accept and recognize
the "employees' choice of International Chemical Work-
ers Union" then the "matter will be taken up with the
National Labor Relations Board." Respondent never
replied to this communication orally or in writing
It also appears, however, that on December 14, 1966,
the Union filed a representation petition with,the Board,
and, on the same day, the Regional Office of the Board
wrote Respondent and enclosed a copy of the petition.
Respondent's president, Litz, testified without contradic-
tion that the Union's demand for recognition and the
Board's notification of the filing of the petition were
received by him on the same day. Litz immediately con-
sulted counsel who quickly got in touch with the Board
and a joint conference of the parties looking toward an
election was arranged for December 28 at the Board of-
fice. By letter of December 16, the Company and Union
were officially notified by the Board that such conference
had been set. Subsequently, however, the Board notified
Respondent that, because the Union had filed unfair labor
practice charges against it, the conference on the
representation petition was canceled and action on the
petition deferred until the charges were disposed of. On
February 14, 1967, the Board notified Respondent that
the 8(a)(3) portion of the charge filed by the Union had
been withdrawn, leaving the 8(a)(1) and (5) matters pend-
ing, and , on February 16, advised Respondent that the
petition had been withdrawn. Earlier, on February 9,
1967, the Regional Director had issued the instant com-
plaint of unfair labor practices alleging violations of Sec-
tion 8(a)(1) and (5) of the Act.
Respondent recognizes that where a union represents
a majority of employees, an employer cannot refuse to
recognize it in order to gain time to undermine it and
destroy its majority. It argues, however, that, in the cir-
cumstances of this case, it was fully justified in failing to
contact the Union after receipt of its letter of December
13, 1966, and to immediately bargain with it without an
election. In support of its position, it points to its prompt
willingness to meet with the Board in conference with the
Union to arrange an election, and it stresses the newness
of its operations, which it describes as a "pilot plant," as
well as its turnover in personnel and uncertainty of future
operations. Respondent contends, on these and other
considerations'20 that it held a good-faith doubt about the
gaining representative in a unit of 27 I find, therefore , that even if only
those subsequently recalled may be considered to have been in the unit
when Respondent received the Union's demand - again assuming that it
was received after the employees were laid off-the Union, nevertheless,
represented a majority of employees in the appropriate unit and was the
statutory representative of the employees at the necessary time.
20 Respondent also attacks some of the Union's authorization cards on
the ground that employees were told that they would be used only for an
election . Englewood Lumber Company, 130 NLRB 394, Morris & As-
sociates, Inc., 138 NLRB 1160 . Except in Agnes Connor's case, whose
card I have assumed is invalid , there is no evidence in the record that any
employee was told that the card he signed would be used only to obtain an
election The cards are clear and unequivocal designations of the Union
on their face, and except in one case, they were authenticated by the em-
ployees who signed them In these circumstances , the cards are valid
designations I also reject, in the light of the employees ' testimony about
their cards and the fact that they are all time-stamped with the Regional
Office's time stamp , the suggestion that one may be invalid because the
employee directed his wife to sign it, and another invalid because of uncer-
tainty about its date of execution . See N L R B. v. Cumberland Shoe
Corp, 351 F 2d 917 (C.A. 6), Happach v N.L.R B , 353 F 2d 629 (C A
7).
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's asserted majority and that any unfair labor prac-
tices it committed are so trivial or isolated that they can-
not support a finding to the contrary.
General Counsel, on the other hand, contends that the
record establishes that upon receipt of the Union's de-
mand, Respondent embarked upon a course of conduct
evidencing Respondent's rejection of the collective-bar-
gaining principle and making a free election impossible
He concludes that Respondent's refusal was not based on
any doubt of majority, but motivated by a desire to gain
time to undermine and destroy it. In my opinion, the
record and the cases support General Counsel's position.
First of all, the filing of a representation petition and
the scheduling of a conference at which a consent election
would be discussed and perhaps agreed on cannot excuse
Respondent's refusal to grant the Union recognition. A
representation proceeding is only one of the routes which
a union may use to demonstrate its majority, and, even if
an election had taken place which the union had lost, an
employer may still be ordered to bargain with the union
if its declination of recognition was improperly motivated
or if it made a fair election impossible.21
Secondly, Respondent's contention that a turnover in
personnel and uncertainty of operations would excuse it
from recognizing the Union or even proceeding with an
election is not supported by necessary facts in the record,
and its reliance on certain cases is misplaced. The record
shows that when the Union made its demand for,recogni-
tion, Respondent employed at least 36 unit employees on
three shifts. Although Respondent laid off a substantial
number of employees thereafter and its future at the time
of the hearing with respect to new orders may have been
uncertain, nevertheless it had just completed a large
order, and, so far as the record in this case discloses, and
Respondent does not contend otherwise, it had em-
ployees employed in all the classifications needed to
produce its product. Moreover, although employment
has fluctuated, Respondent is still in business, seeks to
continue, and still had production employees employed
during the hearing in this case. Respondent's operations
at all material times, therefore, were founded on a
representative complement of employees, both in number
and classification, which would have justified it in grant-
ing recognition to the Union without violating the Act.22
Although Respondent's manufacturing and sales
problems and its apparent willingness to cooperate with
the Board in processing the representation petition which
the Union filed do not of themselves excuse Respond-
ent's denial of recognition, they may be given considera-
tion with all "relevant facts in the case, including any un-
lawful conduct of the employer"23 in determining whether
the employer's action was not in good faith but taken
because it rejected the collective-bargaining principle and
in order to gain time within which to undermine the
Union and dissipate its majority. I have found earlier that
Respondent, commencing on the morning of December
15, 1966, and continuing into the following January, coer-
cively interrogated employees about their own union ac-
tivities and the union activities of fellow employees, and
coupled some of its interrogation with promises of
benefits and threats to close the plant on account of the
Union. In addition, Respondent ridiculed two employees
by describing them as "union girls," and by such conduct
and other statements indicated to employees that it had
their union activities under surveillance.
Respondent contends that the statements which Con-
nor and Wendt made were not coercive and in no case in-
dicative of a desire to undermine the Union's majority. It
is true that in this type of case the character and extent of
unfair labor practices must be considered because the
mere finding of a violation of Section 8(a)(1) of the Act
does not automatically create a presumption that an em-
ployer acted in bad faith by refusing to bargain with a
union.24 The General Counsel has the burden in all cases
of establishing that the refusal was in bad faith, and in
Hammond & Irving 25 the Board, in dismissing a refusal-
to-bargain complaint, noted that "there are some situa-
tions in which violations of the Act are not truly incon-
sistent with a good-faith doubt that the union represents
a majority of the employees." I have carefully considered
Respondent's asserted reasons for not granting recogni-
tion and the character and extent of the unfair labor prac-
tices in which it engaged during the Union's campaign,
particularly those which occurred contemporaneously
with the Union's demand and Respondent's asserted
willingness to have a free election. In my opinion, the in-
terference, restraint, and coercion practiced by Respond-
ent was not isolated or minimal, but was widespread,
serious, and done at a critical time. Respondent, as is
evident from Wendt's and Connor's statements, did not
want its plant organized, and its violations of Section
8(a)(1) of the Act made a fair election unlikely or impossi-
ble.
I find that Respondent's refusal to bargain with the
Union upon request was in bad faith and that by such
conduct Respondent violated Section 8(a)(5) and (1) of
the Act.26
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations set
forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent had engaged in certain
unfair labor practices, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
11 United Mine Workers v. Arkansas Oak Flooring Co., 351 U S. 62,
71-72, Bernel Foam Products Co, Inc., 146 NLRB 1277; Joy Silk Mills,
Inc, 85 NLRB 1263, enfd. 185 F 2d 732 (C A D C ), International
Union of Electrical Workers (S N.C. Mfg. Co) v. N L R.B , 352 F 2d
361 (C A D C.), cert denied 382 U S 902, Wausau Steel Corp v
N.L R.B., supra, fn. 8
22 See General Extrusion Company, Inc., 121 NLRB 1165, Lapeer
Metal Products Co., 134 NLRB 1518, 1532; A 0 Smith Corporation of
Texas, 122 NLRB 321. Cases cited by Respondent, such as Detroit
Processing Terminal Division , Nor-Cote, Inc, 151 NLRB 468, and
Douglas Motors Corp ., 128 NLRB 307, rely on the General Extrusion
rule and are, moreover , factually distinguishable.
23 Joy Silk Mills, Inc , 85 NLRB 1263, 1264.
24 Hammond & Irving, Incorporated , 154 N LRB 1071; Glynn Camp-
bell, dlbla Piggly Wiggly , El Dorado Co ., 154 N LRB 445
25 Supra, in 24
26 Joy Silk Mills, Inc, supra , Irving Air Chute Co v N L R.B., 350
F 2d 176 (C.A. 2)
POLYURETHANE PRODUCTS CO., INC. 103
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. All production and maintenance employees of
Respondent employed at its East St. Louis, Illinois, plant,
excluding office clerical, professional employees, guards,
and supervisors as defined in the Act consitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. At all times material since December 13, 1966, the
Union has been the exclusive representative of all the em-
ployees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
6. By refusing to bargain with the Union, as found
above, on December 15, 1966, and thereafter, Respond-
ent engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Director for Region 14, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.28
27 In the event that this Recommended Order is 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
28 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days trom the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and upon the entire record in the case, it is
recommended that Polyurethane Products Company,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive representative of its employees in the ap-
propriate unit found herein.
(b) Interrogating any of its employees with respect to
their union activities.
(c) Creating the impression of surveillance of the
union activities of its employees.
(d) Promising benefits to employees in order to
discourage them from engaging in union activities.
(e) Threatening employees that Respondent will close
its plant or that its officials will resign from Respondent
rather than recognize a union.
(f) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their rights to
self-organization; to form, join, or assist any labor or-
ganization; to bargain collectively through representa-
tives of their own choosing; to engage in concerted activi-
ties for the purposes of collective bargaining or other mu-
tual aid or protection; or to refrain from any and all such
activities.
2. Take the following affirmative action:
(a) Bargain with the Union, upon request, as the exclu-
sive representative of the employees in the appropriate
unit found herein with respect to wages, hours, and other
conditions of employment , and if an understanding is
reached embody such understanding in a signed agree-
ment.
(b) Post at its East St. Louis, Illinois, plant involved
herein copies of the attached notice marked "Appendix."27
Copies of said notice, to be furnished by the Regional
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL bargain collectively in good faith with In-
ternational Chemical Workers Union, AFL-CIO, as
the exclusive representative of all employees in the
bargaining unit described below with respect to rates
of pay, hours of employment, and other conditions of
employment, and if an understanding is reached, we
will embody it in a signed agreement. The bargaining
unit is:
All production and maintenance employees at
the East St. Louis, Illinois, plant , EXCLUDING
office clerical, professional employees, guards
and supervisors as defined in the Act... .
WE WILL NOT interrogate employees about their
union activities.
WE WILL NOT promise employees benefits to get
them to give up their union activities.
WE WILL NOT make statements designed to give
employees the impression that we are keeping them
and their union activities under surveillance.
WE WILL NOT threaten to close the plant or have
our officials quit their jobs if the union organizes our
plant.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the right to self-organization, or form labor organiza-
tions, to join or assist any labor organization, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mu-
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tual aid or protection, or to refrain from any or all This notice must remain posted for 60 consecutive
such activities. days from the date of posting and must not be altered,
POLYURETHANE PRODUCTS
defaced , or covered by any other material.
COMPANY, INC. If employees have any question concerning this notice
(Employer) or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 1040 Boat-
Dated By men 's Bank Building , 314 North Broadway, St. Louis,
(Representative ) (Title) Missouri 63102 , Telephone 622-4167.