Poray, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1966

160 N.L.R.B. 697 (N.L.R.B. 1966)

PORAY, INC. 697
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 17th
Floor, U.S. Post Office and Court House , 312 North Spring Street , Los Angeles, Cali-
fornia 90012 , Telephone 688-5850.
Poray, Inc. and Metal Processors ' Union Local No. 16, AFL-CIO.
Case 13-CA-6775. August ^?6. 1966
DECISION AND ORDER
On April 19, 1966, Trial Examiner Owsley \TOSe issued his Decision
in the above-entitled proceedint, 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. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices and recommended
that such allegations of the complaint be dismissed. Thereafter, the
Charging Party filed exceptions to the Decision and a supporting
brief. The Respondent filed cross-exceptions, and an answering brief
and brief in support of cross-exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board dismissed the complaint insofar as it alleges violations
of Section S(a) (5) of the Act.]
1 Frito-Lay, hic, 151 NLRI, 28 In view of our holding herein that the Respondent had
reasonable grounds for believing that the Union had lost Its majority status, we find it
unnecessary to pars on the Trial Examiner's additional finding that the Union ens re-
sponsible for discontinuation of negotiations , and that the General Counsel tailed to prove
that the incumbent Union represented an uncoerced majority because the new checkoff
authorizations were obtained by the Union through false representations
160 NLRB No. 61
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Owsley Vose, in Chicago, Illinois,
on June 16 to 18, 1965, and January 17, 1966 , pursuant to, charges filed in the
preceding November and December 1964 and January 1965, and a complaint
issued on March 26, 1965. The complaint, as subsequently amended, presents
questions as to whether the Respondent refused to bargain collectively with the
Charging Party ( hereinafter called the Union), in violation of Section 8(a)(5) of
the National Labor Relations Act, as amended, and whether it engaged in various
acts of interference , restraint , and coercion in violation of Section 8(a)(1) of the
Act.
Upon the entire record, including my observation of the witnesses , and after due
consideration of the briefs filed by the General Counsel and the Respondent, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation , is engaged in manufacture of metal
parts at its plants at Chicago , Illinois. During 1964, the Respondent shipped more
than $500,000 worth of manufactured products to out-of-State destinations. Upon'
these facts , I find, as the Respondent admits, that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Metal Processors ' Union Local No. 16, AFI-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 1961 contract
On October 16, 1961, the Respondent entered into a collective-bargaining
contract with the Union, covering all the Respondent 's production and' mainte-
nance employees , excepting office and clerical employees and certain other groups.
The Union, although the representative of a majority of the Respondent 's employ-
ees in the above appropriate unit, had not been certified by the Board as the
statutory bargaining representative of the Respondent 's employees . The contract
provided that it was to expire on January 1, 1965.
The contract contained a union -security clause requiring all union members
to remain members in good standing . As to all other employees , and those newly
hired, they were required by the contract to become members after 30 days. The,
contract also contained a dues checkoff provision.
B. The 1962 petitions
During the summer of 1962 a management official found on a desk in one of
the Respondent 's offices two petitions signed by a total of 67 employees bearing
the following typewritten text in English:
We the undersigned respectfully request Mr. Poransky, president of Poray
Inc. to cease the collection of our AFL-CIO union dues and if possible to
refund dues collected up to this time , which may not as yet been turned over
to the union. The reason for this request is that we feel that our joining of
the union was based on a misunderstanding of facts.
Immediately below the English text was typed what was presumably a translation
into Polish. The signatures were appended below the Polish translation.
The record in this case does not show the origin of the petitions nor who was
responsible for circulating them. Although the record in this case was reopened
in January 1966 to afford interested parties an opportunity to develop the facts
regarding the origin and sponsorship of the petitions , nothing of significance, in my
opinion, was brought out. -
The record does show that after receiving the petitions , the Respondent for a
few months in 1962 ceased paying over to the Union dues which it was then
PORAY, INC. 699
checking off from the employees ' wages pursuant to previously executed checkoff
authorizations . As a result the Union consulted the State 's attorney 's office about
a possible criminal prosecution of the Respondent . A conference concerning this
matter was held at the State's attorney 's office in September 1962. Representatives
of the Respondent and the Union attended , including President Walter Poransky
for the Respondent , and David Loewenberg , the attorney for the Union . Poransky
referred to the petitions at this conference and offered to show them to the
representative of the State 's attorney 's office. The offer was declined and Loewen-
berg did not have an opportunity to examine the petitions at this time. At the
instance of the State 's attorney 's office, the Respondent paid over the back dues
and resumed paying on a current basis.
C. The negotiations for a successor contract
The Union called a meeting with the Company to discuss the grievances of
two of the Respondent 's employees on July 30 , 1964. At this meeting , which was
held at the union office , Norbert Anderson , an attorney who had been given
authority to act as negotiator for the Respondent , met with David Loewenberg, the
general counsel of the Chicago Joint Boaid of the International Union of Doll
& Toy Workers of the United States and Canada, AFL-CIO , with which the
Union is affiliated . Joseph Cicero , another attorney representing the Union, was
present during part of the discussion . When Anderson brought up the subject of
grievances , Loewenberg indicated that the "real problem" was the negotiation of
a new contract, and asserted that he had heard that the Respondent was going
to file a petition for an election with the Board . Anderson , while denying that the
Respondent was preparing to file a petition , later on in the discussion stated, in
connection with Loewenberg 's renewed request that the parties commence bargain-
ing for a successor contract , as follows:
Dave, you know part of the trouble here is that the Company simply does
not believe that the union represents a majority . .
Mr. Poransky has been accused by some of the employees of selling them
down the river.
The conversation continued as follows, according to Anderson 's testimony which
I credit:
And he made the statement that they did represent the employees.
And I said , well, what I would like to do is get this question out of the
way. If you claim to represent a majority and we don 't believe you do,
isn't the easiest way out of this to have an election and get rid of the ques-
tion once and for all ? Mr. Loewenberg stated that he would not go to an
election. That he was not even sure that they could win an election. And if
the company filed a petition , they would disclaim interest but that did not
mean that they were going to walk away. That they would harass the com-
pany until they got what they wanted.'
After the grievance was briefly discussed Loewenberg again sought to talk about
the contract . Anderson agreed to pass his requests along to the Respondent.2
On August 21, 1964 , Loewenberg sent a letter to the Company requesting the
opening of bargaining negotiations for a new contract within the coming week.
ILoewenberg testified that at first there was no discussion abort majority status, that
it was not until just prior to the filing of the employer's petition for an election that the
Respondent informed him that it questioned the Union ' s majority status I do not credit
Loewenberg 's testimony in this regard It is implicit in Union Attorney Cicero's question-
ing of Anderson concerning the meeting on July 30 , at which Cicero was present for part
of the time, that the Respondent had raised a question conceining the Union ' s majority
status, for he asked if Anderson iemembered "Loewenberg stating whether or not lie was in
fear of a representation election because of the company 's conduct calculated to dissipate
the union 's majority"' Furthermore , within a week after the July 30 meeting the Union
commenced obtaining new checkoff cards ( containing bargaining authorizations), although
due,, were then being checked off of the wages of an undisclosed number of employees
pursuant to existing checkoff authorizations In these circumstance ,, I cannot believe
that the Respondent did not raise it question about the Union's majority status at the
July 30 meeting.
2 The foregoing is not a full account of the discus sion at this meeting However, it is-
sufficient , in my opinion , for the purposes of this case
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early in September, Anderson sent the Union a letter acknowledging the Union's
request for a meeting, and about September 10, Anderson called Loewenberg to
arrange such a meeting.
The meeting was held on September 22 at the Como Inn. Loewenberg presented
the Union's dozen or more demands orally at the dinner table. Anderson com-
mented that the Company's financial position was such that "it just wasn't possible
to meet the demands." Loewenberg replied, "We don't expect all of the demands."
But he added that there were a few demands which the Union would insist upon.
Anderson recalled these as follows: health and welfare contributions, the elimina-
tion of the clause in the current contract making vacations dependent upon
the Respondent's making a profit, a general 5-cents-per-hour wage increase, a
union-security clause, and a 3-year contract. Anderson suggested eliminating the
union shop and checkoff clauses and explained his reasons for seeking such a
change. In lieu of a union shop clause, Anderson broached the possibility of
having some form of a maintenance-of-membership clause. Loewenberg opposed
this. Anderson then suggested that in view of the dispute about the majority
status of the Union, the parties continue to negotiate with the - understanding
that a petition for an election would be filed by the Respondent at the appropriate
time, and that the contract would be subject to the Union's establishing its major-
ity status in the election This, Anderson suggested, might make the union-shop
problem less difficult to solve. After this meeting Anderson called Loewenberg and
asked him to put the Union's demands in writing to avoid any misunderstanding.
Loewenberg agreed and suggested that when this had been done it would then
be up to the Respondent to make a counterproposal. After discussing possible
dates for the next conference, it was agreed-that Anderson would call Loewenberg
the latter part of the month to set a definite date for the next meeting (Loewen-
berg was going to be out of town in the meantime).
Loewenberg complied with Anderson's requested letter stating the Union's pro-
posal by letter dated October 7, 1964. Among the Union's requests were the
following:
1. Hospitalization benefits.
2. Retirement benefits.
3. Life Insurance.
4. Time and one half after 8 hours.
5. Eight hours reporting time.
6. Two additional paid holidays.
7. Improvement in the vacation program.
8. A -general wage increase of 25 cents an hour.
Anderson called Loewenberg on October 28 but was unable to reach him. When
Loewenberg called back the next day, Anderson told him that the Respondent felt
that it had no alternative but to file a petition for an election, and wanted the
Union to know about it in advance. Anderson also inquired what the Union
wanted to do in these • circumstances about another meeting. Loewenberg stated
that it would be "ridiculous" to have another meeting, that he wanted to terminate
the contract immediately, that he was going to take the employees out on strike,
and would take every step possible to make sure that the Respondent did not
operate. Anderson suggested continuing the discussions until the Board had decided
the question of representation. Loewenberg asked Anderson to terminate the con-
tract as of that date. Anderson declined. Anderson agreed to furnish Loewenberg
with a statement of the Respondent's position with respect to the Union's contract
proposals.
That same day, October 29, the Respondent's attorney, Warren Sullivan, filed
a petition for an election with the Board in the Respondent's behalf. On
November 4, Loewenberg mailed to the Board an unfair labor practice charge
alleging that the Respondent, although it had not questioned the Union's majority
status, since 1961 had refused to bargain collectively in good faith with the Union,
thereby violating Section 8(a)(5) and (1) of the Act.
On November 6, Anderson, in response to Loewenberg's request, wrote him
confirming the fact that the Respondent had filed a petition for an election and
stating the Respondent's position regarding various of the Union's proposals,
including its proposals for a union shop and dues checkoff and explaining the
reasons for the Respondent's position. As to the Union's economic demands. An-
derson mentioned the fact that the Respondent had lost several large accounts,
PORAY, INC. i 701
with the result that its work force had had to be reduced , while at the same time the
Respondent 's overhead continued as before . Anderson concluded that in these
circumstances it appeared "inadvisable to increase labor costs."
Around December 11 or 12 the Respondent informed Anderson that the Union
had passed out leaflets intimating that a strike was to be called . Anderson called
Loewenberg 's office, but Loewenberg was out of town. Anderson left the message
that he wanted to talk with Loewenberg about rumors of a possible strike , that he
was anxious to avoid one , and that he felt that as long as the parties continued
talking the chances of a strike were lessened The following week Loewenberg
called Anderson back and proposed that the contract be extended for 90 days.
Anderson replied that he would pass along his recommendations to the Respond-
ent and call Loewenberg back. Attorney Sullivan , on behalf of the Respondent,
wrote Loewenberg declining to extend the contract.
There were no further discussions or meetings between the parties . The Union
did not request any further meetings.
D. The Union 's efforts to obtain fresh bargaining authorizations
As found above, at the grievance meeting on July 30 , 1964 , the Respondent's
representative asserted that the Respondent did not believe that the Union repre-
sented a majority of its employees . Shortly thereafter , at a union meeting on
August 7, the Union commenced soliciting signatures on new checkoff authori-
zation blanks, despite the fact that dues were presently being checked off from
the wages of some of the Respondent 's employees , pursuant to authorizations
then in effect 3 The authorization blanks also contained a designation of the Union
as the sole bargaining agent of the signers thereof . Approximately 23 authorization
blanks were signed at this meeting.
The Union apparently let its efforts along these lines lapse for several months
for it was not until November , after the Respondent had filed its petition for an
election and after the Union had filed its unfair labor practice charge, that the
Union renewed its efforts to obtain fresh bargaining authorizations .4 At this
time the Union initiated a concerted effort to obtain the signatures of employees
on new authorization blanks. The Union not only solicited signatures at union
meetings , but also it communicated with the employees by mail and by personal
visits to the homes of employees.
All of the Respondent 's employees whose addresses the Union could obtain
were either given or sent a "kit" of materials containing a letter in English and
Polish mentioning the various benefits of union membership , a so-called Replace-
ment Death Benefit Policy, a so -called Replacement Severance Benefits Policy, and
a pamphlet of the Chicago Joint Board explaining various union benefits, includ-
ing, among other things , Blue Cross -Blue Shield coverage , the Union 's disability
benefit program , and legal advice. Also included in the kit was a Blue Cross-
Blue Shield membership card made out in the employee 's name and bearing
the date "1 / 1/65," which , it was explained at the hearing, was the effective date
of the card.
Apparently these kits were distributed in November in connection with the
Union's drive for new signatures at the time, as the covering letter announces
the date of the next union meeting as November 20, 1964. By November the
Union had been advised by the Respondent that its financial condition was such
that it was inadvisable to raise labor costs.
Despite the fact that the Respondent , for the time being at least , had rejected
the Union 's "must" demand for participation in the Union 's health and hospitali-
zation program , the Union stated in the covering letter included in the kit in both
English and Polish , as follows:
Enclosed you will find your Blue Cross , Blue Shield hospitalization card and
the booklet of benefits that explains all the benefits you are entitled to as a
Union Member. This Blue Cross card will admit you and /or any member
of your family to any Doctors office or Hospital in the United States abso-
lutely free of charge. All of your Hospital and Doctor bills will be paid for you
3 The record fails to give even an approximation of the number of employees from whose
wages dues were currently being checked off.
4Only four authorizations are dated in the period between August 7 and November 5.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by your Union . Always keep this card on your person , in your wallet or
purse so that it is immediately available for an emergency . All you have to
do is present this card whenever you go to any doctor or hospital.
This language was included in the letter although the Union admits that under
its Blue Cross-Blue Shield program it is financed solely by employer contributions.
In defense of its action , Joseph Cicero , one of the attorneys for the Union,
testified that it was explained to the employees that participation in the Blue
Cross-Blue Shield program was a benefit which the Union hoped to persuade
the Respondent to pay for in bargaining negotiations , and that if it were unsuc-
cessful it would permit the employees themselves to pay the premiums which
would enable them to obtain the savings from participating as group members,
rather than having to pay the individual rate which was much higher . I am not
persuaded by the testimony in this case that this message was effectively com-
municated to the employees who signed cards in November , most of whom did
not speak much English. Eighty percent of the Respondent 's employees spoke
Polish. Neither Loewenberg nor Cicero , who did the explaining , speak Polish.
E, The Company 's alleged acts of interference , restraint , and coercion
1. The incidents in November 1964
The General Counsel discusses a number of instances of alleged acts of inter-
ference, restraint , and coercion in his brief , all of which , I find , occurred after the
Union filed its charge with the Board alleging that the Respondent had refused to
bargain collectively with the Union in violation of Section 8(a)(5) of the Act.
The first incident involves a conversation between Wladyslaw Gabryluk, an
admitted supervisor, and three of the men that worked under him at night. Accord-
ing to Peter Sawickij, Gabryluk told the employees early in November "that Mr.
Poransky [ the Respondent 's president ] not to smoke , just unions to smoke. Poran-
sky give three [warning] tickets on people-fired. Have to take new people, .
Union make $20." (The Union 's initiation fee was $20 ) Gabryluk testified that
he told the men to stop smoking because it was dangerous and denied saying any-
thing about a union initiation fee. The record establishes that the Respondent for
years has prohibited smoking in the plant and that signs to this effect had long
been posted . I think it highly improbable under all the circumstances that Gabryluk
would have attributed to the Union the enforcement of the no-smoking rule and
consequently reject Sawickij's testimony above quoted . In making this finding I
do not wish to imply that Sawickij was lying. Rather I conclude that we had a
communications failure at the hearing due to Sawickij 's difficulty in expressing him-
self in English.
The General Counsel next relies on two smaller incidents occurring in November
1964 involving Walter Poransky , the Respondent 's president . Poransky was not
called to testify concerning these incidents , consequently we do not know what
his version is. Lawrence Miszkowski testified on direct examination that Poransky
came up to him at his work in the plant and told him "not to sign anything
with the union ." On cross-examination, Miszkowski backtracked consideiably,
answering in the affirmative to counsel 's question as follows: "Isn 't it a fact,
Mr. Miszkowski , that Mr Poransky told you you could sign or not sign but it was
up to you to be sure you understood what you were being asked to sign, isn't that
a fact?" On redirect , Miszkowski reverted to his original version, stating that Por-
ansky had "said that the union was going to come to our house and tell us to
sign And he said we shouldn 't sign anything ." Since Poransky failed to give us
his account of this conversation , I have only Miszkowski 's testimony to go on,
and must determine which, if any , of Miszkowski 's versions are truthful . I conclude
that more reliance can be placed on Miszkowski 's testimony on direct and redirect,
than his response to counsel 's extremely leading question on cross. In fact I am
far from sure that the witness fully comprehended counsel's question on cross.
And it is sometimes difficult for an employee who is facing his employer 's officials
at counsel table, to give an answer which he knows will displease his employer.
In any event , Miszkowski appeared to me to be trying to testify truthfully in his
answers to the General Counsel's questions and I credit his testimony that Por-
ansky told him not to sign anything for the Union.
Joseph Dvorek credibly testified that Poransky came up to him at his work
station and spoke to him as follows: "He told me not to sign that stuff. He told
me to see my lawyer and somebody else." When asked , "What stuff," Dvorek
answered , "The white card" that "Theodore [Kabot, union representative] and
PORAY, INC. 703
Pete [Sawickij , union steward]" were going around with . Dvorek observed Por-
ansky talking to about 20 other employees that same day that Poransky had
talked to him.
The giving of such instructions to Miszkowski and Dvorek by Poransky, the
Respondent's top official whose word was law at the plant , in my opinion, natu-
rally tended to interfere with and restrain these two rank-and-file workers in their
freedom to join the Union . As such instructions did not constitute an expression
of "views, argument or opinion ," Poransky 's instructions did not come within
the protection of Section 8(c) of the Act . I conclude that Poransky , by giving
such instructions to the two men, interfered with and restrained them in violation
of Section 8(a)(1) of the Acts
The Respondent , relying on a notice posted on its bulletin board on
November 16, 1964,6 argues that Poransky merely told Dvorek and Miszkowski
to be sure to understand what they were signing before signing anything for the
Union. However, Poransky did not testify to this effect and argument, in my
opinion , is not an adequate substitute for testimony where the question is solely
one of fact.
President Poransky is also involved in an incident involving Ete Jelen. One
evening in November one of the Respondent 's employees and another man visited
Jelen at her home and left with her an envelope containing the various papers
which the Union was passing out among the employees . The next morning Por-
ansky asked Jelen in the plant if someone from the Union had been at her
house and if they had left any papers with her. When Jelen answered yes,
Poransky asked Jelen whether she had signed . She said no . Poransky then asked
whether he might see the papers which the Union had left with her. Jelen agreed
to bring the papers to the plant. Jelen brought the papers, which were in an
unopened envelope, to the plant the next day and gave them to Poransky at her
first opportunity , which occurred a few days later. Subsequently Poransky again
questioned Jelen about a statement which she had given NLRB investigators.
The incidents discussed above, which are based on Jelen's undenied testimony,
reveal persistent questioning of an employee by the Respondent 's top official.
Poransky 's questioning of Jelen indicates that he was more than casually interested
in the matter of Jelen's union sympathies and that union affiliation was a matter
of serious concern to him. Not only did Poransky seek to find out whether
Jelen had been solicited by the Union and whether she had aligned herself with
it, but he requested her to furnish communications to her from the Union which
the Union had delivered to her privately . The request, which Jelen may well have
6 The General Counsel also cites the testimony of Stefania Dziadkowiec to the effect
that Poransky told her in November 1964 not to sign any union documents unless she un-
derstood what she was signing However, I find nothing coercive in such a statement This
is particularly true in a case like the present where 80 percent of the employees are Polish
speaking.
The text of the notice , which was posted in both English and Polish , is as follows
November 16, 1964
To All Employees
Apparently some of our people are being requested by the Union to sign papers or cards
without being given the opportunity to read them or have them translated from the English
We have been asked whether there is any requirement that you do so We think you should
follow these rules.
1 Do not sign anything you have not read and understood.
2 You are legally entitled to discuss any request to sign or what the card contains
with your family or friends before signing.
3 You should make up your own mind on what to do. You may sign or you may refuse
to sign
4 Some have been told the cards are for your insurance and others have been told
they are being obtained for the Government . We have no idea what the purpose is, al-
though we do know that no Government agency has requested our employees to sign any
forms. Whatever the reason , you owe it to yourselves to find out for certain what you are
being asked to sign
We haven ' t forgotten that we promised to keep you advised on the pending National
Labor Relations Board election case. These things take time. A secret ballot election has
been requested in which you will have an opportunity to vote on iuhether or not you want
the Union . The National Labor Relations Board case number is 13 R\I 774
PORAY, INC
In the Polish translation paragraph 3 was omitted.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarded as an order coming as it did during working hours from the Company's
president, was not couched in terms calculated to assure her that she was free to
refuse. Thus, apart from the concern about union affiliation which is implicit in
employer questioning of employees about union matters and the implication that
this concern may be translated into adverse action against the employees if support
of the Union is -revealed, Poransky's questioning of Jelen in this case invaded
Jelen's right of privacy regarding a matter as to which employees, in my opinion,
are entitled to be protected from an employers prying, if they are fully to enjoy
the right to self-organization. Under all the circumstances of the case, I conclude
that Poransky's questioning of Jelen violated Section 8(a)(1) of the Act.
Another incident relied on by General Counsel involves Mykolaj Hrycum and
Stanislaw Baran, a foreman. Hrycum testified that Baran told him, as Baran passed
him in the plant one day in November, "no making sign . for Union," "Mr.
Poransky given you given raise." As I construe Hrycum's testimony, he was saying
that Baran had told him not to sign for the Union and Mr. Poransky will give
you a raise. Baran flatly denied saying anything either about a union or Mr.
Poransky giving Hrycum a raise. Instead, Baran testified, he remonstrated with
Hrycum on this occasion for coming to work drunk. This conflict in the testimony
creates a very difficult credibility problem. However, testimony which I have
credited and which is not denied by Poransky establishes that Poransky told at
least two employees not to sign cards for the Union. It would have been consist-
ent with Poransky's own actions for Baran to have approached Hrycum as
Hrycum said he did. Under all the circumstances I credit Hrycum's testimony and
find that Baran's conduct violated Section 8(a)(1) of the Act.
2. The police incident in January 1965
On January 6, 1965, Theodore Kabot, the president of the Union, and Miles
Nekolny, a business agent, visited the Respondent's plant at about 6.30 a.m. As
they were sitting in Kabot's car which was parked in front of the plant, Poransky
went to the window on the driver's side and asked who they were. Kabot told
Poransky that they were from the Union, and the two union men then got out
of the car. Poransky asked them what they wanted there. Kabot replied that they
wanted to talk to the employees. By this time all three men were on the public
sidewalk in front of the plant. Poransky stated that they had no business there.
Kabot rejoined that they had as much business there as Poransky did. Poransky
called the union men "trouble-makers" and Nekolny responded belligerently that
they were not afraid of him. Poransky told an employee who was standing
nearby to go inside and bring out more employees. Kabot then reiterated that he
had as much right to be there as Poransky, whereupon Poransky said he would
call the police and went inside.
Within 5 minutes a police car drove up, and within a short while three other
police cars containing uniformed policemen drove up. Poransky went over to the
first car and spoke to the officers who had gotten out of their car. When asked
what the trouble was, Poransky, referring to the two union men, said that "these
people are causing trouble." When asked who they were, Poransky replied that
he did not know. The officers came over to the two union men and asked what
the trouble was. Kabot replied that there was no trouble, and explained that they
were business agents working on the shop and that there was "a bit of a labor dispute."
One of the officers replied "I don't see any trouble or anything else." The officers
and Poransky went back to the squad car where they were observed in a heated
discussion with Poransky. After all the employees had reported for work at 7:30
a.m. Kabot and Nekolny left.
Thereafter, during the months of January, February, and March 1965, Kabot
visited the plant about two or three times a week. Each time he was there, he
observed one or two squad cars of uniformed police.
Poransky testified that about 3 p.m. on January 5 he received a telephone call
from an anonymous caller who told him that he could expect trouble at the
plant the following morning. As a result of receiving this call, Poransky went to
the office earlier than he normally would, and the episode above related occurred.?
Poransky further testified that he did not call the police department again after
January 6.
7 Poransky's version of this affair differs but little from Kabot's, stated above, mainly
to emphasis.
PORAY,, INC. 705
Union President Kabot admitted that the police did not interfere with him in
any way on January 6 or later in carrying out -his mission at the plant.
John Killackey , a lieutenant in the Chicago police department , testified that
once the police department receives a call for assistance in connection with a
labor dispute the department continues to keep the dispute under surveillance
until , in its judgment , there is no further need for its services.
While I find that in calling the police on January 6, 1965, Poransky was moti-
vated by hostility to the Union and a desire to prevent the union agents from
obtaining access to the employees as they went to work, I find in the circumstances
of this case , that the police in no way interfered with access of the union agents
to the employees and that the presence of the police on this occasion did not
unlawfully restrain the employees in the exercise of their rights under the Act.
Regarding the presence of the police at the plant after January 6 , I conclude that
the Respondent was not responsible for the decision of the police department to
continue to keep an eye on the plant after January 6, and hence, even assuming
that the continued presence of the police had an inhibiting effect on the employ-
ees, which I doubt, no violation of the Act can be attributed to the Respondent.
3. The incident involving Foreman Pilip in May 1965
The final incident relied on by the General Counsel is one occurring about the
end of May 1965 and is based upon the testimony of Peter Sawickij , as follows:
I come from the washroom and he [Ed Pilip , his foreman ] meet me, he said,
Pete, are you still [messing ] around with the union . You not satisfied with
$3 per hour , I make you make $2 an hour . I cut your rate . When you don't
like, you work somewhere else.
By the time this incident occurred the complaint had already been issued. On
June 7, the General Counsel issued and served on the parties a Notice of Inten-
tion to Amend Complaint based upon Foreman Pilip 's questioning of Sawickij and
the threat above related . On June 11, 1965, counsel for the Respondent requested
an appointment with the Regional attorney for the purpose of making an offer of
settlement of the matter covered in the General Counsel 's notice of intention to
amend and to consider "such other or further action as might be deemed necessary
or advisable to remove any inference of employer authorization or approval or
of the possibility of reprisals ." 8 Warren Sullivan, counsel for the Company, met
with Regional Attorney William Cavers and Attorney Donald Crawford on June 12.
Sullivan proposed posting the notice, the text of which is set forth in the footnote
below .9 According to the stipulation , which I have marked as the Respondent's
Exhibit 27 and received in evidence , "Counsel for General Counsel Donald Craw-
ford and Regional Attorney William Cavers declined to consider any disposition
of the matter and stated that they proposed to proceed at the hearing along the
lines indicated on the attached Notice of Intention to Amend."
The Respondent contends that no unfair labor practice finding can be made
upon the basis of this last incident involving Foreman Pilip on the grounds ( 1) that
8 The language quoted above Is taken from a stipulation in this case dated June 16,
1965, which was signed by Donald J. Crawford , as counsel for the General Counsel, and
Warren G Sullivan , counsel for the Respondent.
The notice read
NOTICE TO ALL EMPLOYEES
It has come to our attention that on May 2'8, 1965 , one of our foremen ( E Phillip)
warned an employee ( P Sawicklj ) that he might be subjected to discipline because he had
been soliciting union memberships outside of the plant on his own time. It Is a Company
rule and policy that there can be no solicitation for or on behalf of any organization,
including unions , on Company time and premises What our employees do at other times
or in other places, however , is their own business. It is your right to decide for yourselves
whether to be for or against a particular union and we not only do not Intend to inter-
fere with your exercise of that right , we intend to protect it in every way we can
Consequently , we feel it is important that you know Mr. Phillip was not authorized so
to act and that no employee will be disciplined or adversely affected in his employment
because of any off-duty actions such as we have described above.
Walter Poransky
President
257-551-67-vol. 16 0- 4 6
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unfair labor practice alleged in the amendment is of a different nature from
those previously alleged in the complaint and may not be added to the complaint
without a new charge being filed ; ( 2) that the General Counsel , in violation of
Section 1004 (b) of the Administrative Procedure Act and the Board's Rules and
Regulations , denied the Respondent an opportunity to adjust the charge made with
respect to Foreman Pilip ; and (3 ) that in any event, the Respondent took prompt
action , by posting the notice set forth in the footnote above, to dissipate the coercive
effects of Pilip's conduct by stating that it was unauthorized and contrary to the
Respondent's policy. In my opinion , none of these grounds is meritorious.
The original complaint alleged that a foreman had engaged in interrogation. The
amendment in question alleges an additional incident of interrogation by a fore-
man and includes a threat which was part and parcel of the interrogation Regard-
ing the General Counsel 's alleged failure to afford the Respondent an opportunity
to adjust the charge concerning Foreman Pihp , it appears that the Respondent was
seeking to adjust but one aspect of a case involving various alleged violations of
the Act. The Respondent was not offering to adjust the allegations of the complaint
as a whole. In my opinion , the General Counsel did not abuse his discretion in
refusing to consider accepting such a piecemeal offer of adjustment . Finally, the
notice posted by the Respondent was not sufficient to undo the effects of Pilip's
interrogation of and threat to Sawickij . The implication derived from the notice
is that union solicitation will not be permitted on company premises under any
circumstances and that employees may suffer if they engage in union solicitation
in the plant , regardless of whether engaged in during the lunch hour or in the
testroom . Such a broad limitation exceeds permissible bounds, absent unusual cir-
cumstances not here shown to be present and the inclusion of such a limitation in
the notice precludes reliance upon the notice as an exculpatory document.
I adhere to my ruling granting the General Counsel's motion to amend and
find, on the basis of Sawickij 's uncontradicted testimony , that Pilip by his action
in the latter part of May 1965 in questioning Sawickij and threatening to cut his
pay interfered with, restrained , and coerced Sawickij in violation of Section 8(a) (1)
of the Act.
F. Conclusions concerning the Respondent 's alleged refusal to bargain
The facts above discussed show that the Union , about 5 months before the
1961 contract was due to expire, initiated discussions looking toward the negotia-
tion of a successor contract . At the very first meeting the Respondent mentioned
the fact that it doubted that the Union still represented a majority of its employ-
ees. However , while thus raising the question of the Union 's majority status, the
Respondent did not refuse to enter into negotiations with the Union . At the next
meeting on September 22, Loewenberg stated the Union 's demands, which were later
reduced to writing at the Respondent's request. Anderson stated the Respondent's
position with respect to various of the Union 's proposals and suggested certain
alternative proposals . Among these was the proposal that the parties continue
negotiating , but that any contract arrived at be made subject to the outcome of
an election which, at an appropriate time, the Board would be requested to hold.
About a month later when Anderson called Loewenberg in an attempt to set a
date for a further meeting , he informed Loewenberg that the Respondent planned
to file a petition for an election with the Board within a few days. The Union
took the position that it would be "ridiculous ," in view of this fact, to hold any
further meetings . None was in fact requested by the Union . The last contact
between the Respondent and the Union occurred in December 1964, when Loewen-
berg returned a call from Anderson and in the course of the call requested that
the contract be extended for 90 days. The Company subsequently declined this
proposal.
The foregoing facts do not warrant a finding that the Respondent has failed to
fulfill its obligation under Section 8(a)(5) of the Act to meet at reasonable times
and confer in good faith with the Union with respect to wages and hours and other
terms and conditions of employment (Section 8 ( d)). The negotiations were never
carried through to a conclusion because of the Union 's refusal to meet further with
the Respondent because of the latter 's insistence upon an election.
There remains the question whether the Respondent was entitled to insist upon
an election under the circumstances of this case. The legal principles applicable in
this case are well settled. An employer is ordinarily under a legal obligation to
recognize and bargain with the majority representative of his employees in an
appropriate unit even though such majority status is established by union author-
PORAY, INC. 707
ization cards. United Mine Workers of America v. Arkansas Oak Flooring Co.,
351 U.S. 62, 71-72; Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.),
cert. denied 341 U.S. 914; N.L.R.B. v. Bedford-Nugent Corp., 317 F.2d 861,
864 (C.A. 7); N.L.R.B. v. Elliott-Williams Co., 345 F.2d 460, 463 (C.A. 7). How-
ever, "an employer may insist upon a Board election as proof of a union's majority
if it has a reasonable basis for a bona fide doubt as to the union's representative
status in an appropriate unit" and the employer's conduct as a whole does not war-
rant the inference that "it rejects, the collective-bargaining principle or desires to
gain time within which to undermine the Union and dissipates its majority." Ham-
mond & Irving, Inc., 154 NLRB 107. See also Cameo Lingerie, Inc., 148 NLRB
535, 538-539; Clerinont's, Inc., 154 NLRB 1397; John P. Serpa, Inc., 155 NLRB
99, Ben Duthler, Inc., 157 NLRB 69. This asserted doubt regarding majority sta-
tus must rest on more than unfounded assertions or speculation. A good-faith
doubt presupposes "a rational basis in fact." N.L R.B. v. Howe Scale Company,
311 F 2d 502, 504 (C.A. 7). Or as recently stated by the Board, an employer may
insist upon an election "only if it can show by objective facts that it has a reason-
able basis for believing that the union has lost its majority status," U.S. Gypsum
Co., 157 NLRB 652.
The Respondent asserts that it acted in good faith and relies primarily upon
the 1962 petitions as its basis for doubting the Union's majoriy status. It also cites
Loewenberg's rejoinder to Anderson at the July 30 meeting, at which Loewenberg
himself expressed doubt concerning the Union's ability to win an election and
threatened to harass the Respondent to gain its ends.1e The General Counsel con-
tends that the Respondent's asserted doubt regarding the Union's majority status
was not raised in good faith, urging that the Respondent's course of conduct during
the period the Union was seeking new bargaining authorizations warrants the find-
ing that the Respondent was not questioning the Union's majority status in good
faith but was in fact seeking to destroy the Union's majority.
In my opinion, weighing the evidence concerning the Respondent's course of
conduct upon which the General Counsel depends, as against the evidence of loss
of majority upon which the Respondent relies, it is not reasonable to infer that the
Respondent was improperly motivated in insisting upon an election. Of the acts
of interference, restraint, and coercion alleged in the complaint as amended (which
were contemporaneous with the union campaign), I have found only the following:
President Poransky's instructions to Miszkowski and Dorek not to sign anything
for the Union, Poransky's questioning of Ete Jelen, and Foreman Baran's state-
ment to Hrycum about Poransky giving him a raise if he did not sign anything for
the Union. The foregoing unfair labor practices are not of a sufficiently flagrant
character to warrant the inference of an improper motive in insisting upon an elec-
tion In my opinion this case falls within the rule of the Hammond & Irving line
of cases cited above. '
In addition, the petitions relied upon by the Respondent as its justification for
questioning the Union's majority status appear to afford a reasonable basis for this
claim. The petitions stated that the signers had joined the Union under a misunder-
standing of the facts and requested that the Respondent discontinue checking off
union dues. Such concrete expression of dissatisfaction with the Union in my opin-
ion clearly constitutes objective evidence of a kind which would ordinarily war-
rant an employer in acting upon it. The only question in my mind relates to
whether the staleness of the petitions (they were apparently signed in the summer
of 1962) affects their usefulness in gauging the employees' sentiments toward the
Union in late 1964. No evidence was produced which gave a more recent indica-
tion of the signers' intentions with regard to the Union. Furthermore, the Respond-
ent was precluded by the Board's 3-year contract-bar rule (General Cable Coi pora-
tion, 139 NLRB 1123) from raising any question concerning the Union's majority
status until it did, when the expiration date of the contract was approaching. Under
all the circumstances, and bearing in mind Union Attorney Loewenberg's statement
to Anderson that he doubted that the Union could muster majority support, I con-
clude that the Respondent had a reasonable basis, shown by objective facts, for
believing that the Union had lost its majority status.
10 The Respondent also refers to communications received from employees in December
apologizing for having mistakenly signed union caids These letters were not received until
months after the Respondent expressed doubt as to the Union's majority status and after
President Poransky had instructed employees not to sign anything for the Union . con-
sequently I can give no weight to them as a basis for the Respondents questioning the
Union's majority.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having, found that, the onus for the breakdown in the negotiations should be
placed upon the Union rather than the Respondent (due to the Union's refusal to
meet further with the Respondent because of the Respondent's insistence upon an
election), and having found that the Respondent was entitled to insist upon an
election in this case, the allegation of the complaint as amended that the Respond-
ent refused to bargain collectively with the Union in violation of Section 8(a) (5)
of the Act must be dismissed."
CONCLUSIONS OF LAW
1. By instructing employees not to sign anything for the Union, by coercively
questioning an employee concerning her union sympathies and the union activity
at the plant, by offering a benefit to induce an employee to refrain from support-
ing the Union, and by threatening an employee with a reduction in wages because
of his union activities, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in the Act, thereby engaging
in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1)
and 2(6) and (7) of the Act.
2. The Respondent has not refused to bargain collectively with the Union in
violation of Section 8(a) (5) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor' practices, my
Recommended Order will provide that the Respondent cease and desist therefrom,
post the usual remedial notices, and furnish the Regional Director with the cus-
tomary compliance reports. Because of the fact that so many of the Respondent's
employees speak Polish, a Polish translation of the text of the notice shall be placed
below the text in English.
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 ORDER
The Respondent, Poray, Inc., Chicago, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from instructing employees not to sign anything for the
Union, coercively questioning employees about union matters, offering or granting
benefits to induce employees to refrain from supporting the Union, threatening
employees with reprisals because of their union activities, and in any like or related
manner interfering with, restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act.
. (a) Post at its plants in Chicago, Illinois, copies of the attached notice marked
"Appendix," including a Polish translation of the text of the notice.12 Copies of
said notice to be furnished by the Regional Director for Region 13, after being
"Since the Board may disagree with my finding that the onus for the discontinuance
of the bargaining negotiations rests upon the Union, It is appropriate to state my con-
clusions with respect to the Respondent's contention that the General Counsel failed to
show that the Union represented an uncoerced majority of the Respondent's employees in
the July to November period of the negotiations for the reason that the cards were ob-
tained through false representations made by the Union, including among others, the
statement that "All of your Hospital and Doctor bills will be paid for by your Union."
The record shows that nearly half of the 67 authorization cards relied upon by the Union
as establishing its majority of 67 out of the 128 employees in the appropriate unit were
signed during November 1964, after the Union had distributed the literature containing
the misrepresentations in question. I am fully in accord with the Respondent's contention
in this regard and it is sustained. The refusal to bargain allegations of the complaint
should be dismissed for this reason also
17 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
RETAIL CLERKS, LOCALS 698 AND 298 709
duly signed by an authorized representative of the Respondent, shall be posted
by the Respondent 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
the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 13, in writing, within 20 days
from the receipt of this Decision, what steps it has taken to comply herewith.13
'J In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT instruct employees not to sign anything for the Union,
coercively question employees covering union matters, offer benefits to employ-
ees to induce them not to support the Union, or threaten employees with
wage cuts or other harmful consequences because of their union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of their right to engage in union or concerted
activities.
PORAY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Offce, 881
U.S. Courthouse & Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 828-7597.
Retail Clerks International Association , AFL-CIO , and Locals
698 and 298, Retail Clerks International Association , AFL-CIO
( Skorman's Inc., and Skorman Bros ., d/b/a Skorman 's Miracle
Mart ) and Anne Bates . Case 8-CB-977. August 26, 1966
DECISION AND ORDER
On June 17, 1966, Trial Examiner George J. Bott issued his Deci-
sion in the above-entitled case, finding that the Respondents, Retail
Clerks International Association, AFL-CIO, and its Local 698, had
engaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that these Respondents had
not engaged in other, and Local 298 had not engaged in any, unfair
labor practices, and recommended that such allegations be dismissed.
160 NLRB No. 73.