Rennselaer Polytechnic Institute

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 712 (N.L.R.B. 1975)

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rennselaer Polytechnic Institute and Local 294, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case 3-
CA-5661
July 30, 1975
DECISION AND ORDER
On November 21, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding . Thereafter , General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed cross-exceptions and a supporting brief.
The Board has considered the record 1 and the at-
tached Decision in light of the exceptions , cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings ,2 and conclusions of the Administra-
tive Law Judge and to adopt his recommended Order
as modified herein.
1. Although we agree with the Administrative Law
Judge's finding that the Respondent violated Section
8(a)(2) of the Act, we do not rely on his rationale.
The Non-Exempt Personnel Advisory Committee 3 is
a labor organization not merely to the extent it con-
sists of employees but because, based on the facts, as
accurately set forth by the Administrative Law
Judge , it is an organization in which employees par-
ticipate and which exists for the purpose, in whole or
part, of dealing with employers concerning griev-
ances, labor disputes, wages, rates of pay, hours of
employment , or conditions of work within the mean-
ing of Section 2(5) of the Act .4 The Respondent
formed the Committee on its own initiative in 1972.5
As alleged in the complaint, since March 1, 1974, the
Respondent has dominated , assisted , and interfered
with the administration of the Non-Exempt Person-
1 In the absence of opposition thereto , we grant General Counsel 's motion
to correct transcript which deals with spelling and transcription errors.
2 In view of our decision to affirm the Administrative Law Judge 's finding
that no bargaining order is warranted in this case, we need not reach the
issues of majority status and appropriate unit determination , or the implica-
tion that this matter is really a refusal -to-bargam case . Accordingly, we do
not consider or pass upon the Administrative Law Judge 's discussion of
these matters.
The General Counsel and Respondent have excepted to certain credibili-
ty findings made by the Administrative Law Judge . It is the Board 's estab-
lished policy not to overrule an Administrative Law Judge 's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd 188 F .2d 362 (C.A. 3, 1951). We
have carefully examined the record and find no basis for reversing his find-
in ps.
Non-Exempt Personnel Advisory Committee has been named as a party
in interest.
Ferguson -Lander Box Co., 151 NLRB 1615, 1619-20 (1965).
3 The Respondent's formation of the Committee in 1972 cannot be the
basis of a finding of an 8 (aX2) violation , since it occurred more than 6
months prior to the filing of the charge and therefore is barred by Sec. 10(b)
of the Act.
nel Advisory Committee in violation of Section
8(a)(2) of the Act by the conduct summarized by the
Administrative Law Judge. Thus, among other
things, under the terms adopted by the Respondent
when it established the Committee, the Committee is
headed by the Respondent 's representatives , i.e., the
business manager, personnel director , and superin-
tendent of physical facilities, who participate fully in
the deliberations of the Committee; the Respondent
controls employee membership on the Committee
and the Committee has no machinery for its own
selection of members; the Respondent contributes
support to the Committee by paying members for
time spent at the meetings and by furnishing a meet-
ing place; and the Respondent controls the operation
of the Committee as well as the agenda of matters to
be discussed at the meetings .6
2. We agree with the Administrative Law Judge's
findings of various violations of Section 8(a)(1) of the
Act. In addition, we find, contrary to the Adminis-
trative Law Judge, that the Respondent granted a
benefit to employees during the pendency of a peti-
tion for a secret ballot election, which, under the cir-
cumstances, also violated Section 8(a)(1) of the Act.
During the organizational campaign, the Company
gave a party for some employees at which employee
Thomas DeMayo mentioned to John Green,
Respondent's vice president for administration and
budget, that he was still worried about a letter of
criticism, which had been placed in his personnel file
3 years earlier, concerning a disagreement between
his immediate supervisors and him over whether his
rather extended absence from work had or had not
been justified. DeMayo contended that the absence
was due to a job-related injury for which he had re-
ceived workmen's compensation. DeMayo com-
plained he had never been able even to talk to any
higher supervisors about the dispute because the
door to the important management people was al-
ways closed to him. As the Administrative Law
Judge found, Green told DeMayo, in keeping with
the general tone of the Respondent's then position, it
was time the big bosses did some listening and that
DeMayo could come to his office and see him per-
sonally. At a later date, DeMayo met Green at his
office where Green produced the letter, listened to
DeMayo's explanation of the incident, and then tore
up the letter and threw it in the waste basket.
Aside from their concern about a rumor that their
work might be subcontracted out, the major employ-
ee complaint raised during the campaign concerned
the past inability of the employees to reach beyond
their immediate, low supervisors and be heard by
a Grafton Boat Co., Inc., 173 NLRB 999, 1002-3 (1968); Tuscarora Plastics
Co., 167 NLRB 1059 (1967).
219 NLRB No. 85
RENNSELAER POLYTECHNIC INSTITUTE
Green as well as Respondent's president and person-
nel director. The Administrative Law Judge found,
and we agree, that the response of the Respondent's
higher officials was to apologize for past inaccessibil-
ity due to pressing university matters and to inform
employees that they would henceforth be available to
speak with employees. Green's dealing with DeMayo
exemplifies this new policy on the part of Respon-
dent. Under the circumstances, we find that the Re-
spondent, by embarking on a policy of making high-
er officials more accessible to employees, granted a
new benefit to employees during the pendency of an
election which interfered with, restrained, and
coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act and thereby violated
Section 8(a)(1) of the Act?
3. Although, contrary to the Administrative Law
Judge, we find that Respondent has granted a benefit
in violation of Section 8(a)(1) of the Act, we never-
theless adhere to the Administrative Law Judge's de-
termination that, under all the circumstances of this
case, a bargaining order is not warranted.
Unlike our dissenting colleagues we agree with the
Administrative Law Judge that the effects of the un-
fair labor practices can be removed by traditional
remedies and that thereafter a free election can be
held. Our dissenting colleagues have listed the unfair
labor practices which we have found and concluded
therefrom that a bargaining order is warranted. In
our opinion, the decision to issue a bargaining order
must be based on all the circumstances of the case
including the nature of the violations and the context
in which they occurred. It is pursuant to such an
overall evaluation that we find a bargaining order
inappropriate.
Without repainting a total picture of the events,
which have been fully and accurately described by
the Administrative Law Judge, we briefly note that
efforts to abandon the union campaign were started
unilaterally by the employees themselves who, on
their own initiative, sought the Respondent's involve-
ment; although the Respondent, through its activities
with the Non-Exempt Personnel Advisory Commit-
tee, violated the Act, the Committee existed long be-
fore the advent of the union campaign, the issues it
dealt with were determined before the organizational
efforts, and its scope encompassed many more em-
7 See N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 , 409 (1964),
where the Supreme Court held that Sec . 8(a)(l) of the Act "prohibits not
only intrusive threats and promises but also conduct immediately favorable
to employees which is undertaken with the express purpose of impinging
upon their freedom of choice for or against unionization and is reasonably
calculated to have that effect."
Although this issue of grant of benefits was not specifically alleged in the
complaint , it sufficiently relates to other allegations in the complaint, and it
was fully litigated at the hearing.
713
ployees than those in the unit in question; and a ba-
sically free and open atmosphere existed at the Uni-
versity where no parties were inhibited from express-
ing their views, on or off working time, regarding the
pros and cons of the union campaign. Each incident,
standing alone, is relatively minor in character, and
even when added together, they do not constitute
such egregious conduct as to warrant a bargaining
order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
Rennselaer Polytechnic Institute, Troy, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 1(a):
"(a) Dominating, assisting, or interfering with the
administration of the Non-Exempt Personnel Advi-
sory Committee or any other labor organization of its
employees, or giving support to such labor organiza-
tion."
2. Insert the following as paragraph 1(f) and relet-
ter the subsequent paragraph accordingly:
"(f) Announcing or granting new benefits to influ-
ence employees' choice of a bargaining representa-
tive or to induce them to reject and refrain from ac-
tivities in support of the above-named Union or any
other labor organization."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBERS FANNING AND JENKINS, dissenting in part:
We agree with our colleagues that the Respondent
violated Section 8(a)(2) of the Act by dominating,
assisting , and interfering with the administration of
the Non-Exempt Personnel Advisory Committee.
Thus, as noted by our colleagues, the Respondent
established the Committee, controlled its member-
ship, its agenda, and its operation, and contributed
financial and other support to it. We further agree
with our colleagues that, by engaging in the fore-
going activity, the Respondent illegally interfered
with the statutory right of its employees to carry for-
ward the Teamsters organizational campaign in vio-
lation of Section 8(a)(1) of the Act. Moreover, we
agree with our colleagues that the Respondent violat-
ed Section 8(a)(1) of the Act by unlawfully interro-
gating various employees on different occasions con-
cerning their union activities, membership,
sympathies, or desires; by indicating to employees
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that their working conditions would be less pleasant
if they chose to be represented by a labor organiza-
tion; by promising employees improved working
conditions for the purpose of discouraging them
from adherence to the Teamsters; by bargaining di-
rectly with individual employees; by announcing or
granting new benefits to influence the employees'
choice of a bargaining representative or to induce
them to reject or refrain from activities in support of
the Teamsters; by writing antiunion speeches for the
employees; by preparing antiunion petitions for
them; by assisting employees in obtaining signatures
on an antiunion petition; and by permitting employ-
ees to circulate, complete, and deliver antiunion peti-
tions during paid company time.
Unlike our colleagues, we find that the
Respondent's foregoing conduct warrants a more
meaningful remedy than a mere cease-and-desist or-
der and an order directing that the Respondent dises-
tablish the Non-Exempt Personnel Advisory Com-
mittee as the representative of its employees for
collective-bargaining purposes. In our view, a bar-
gaining order is warranted based upon the foregoing
misconduct and upon the fact, as found by the Ad-
ministrative Law Judge, that the Teamsters repre-
sented a majority of the Respondent's employees in
an appropriate bargaining unit at all pertinent times.
While the Board normally views a secret ballot
election as the most satisfactory method of resolving
questions of representation, it has long been recog-
nized that certain circumstances may require reliance
on other indicia of employee sentiment. Thus where,
as here, a union has obtained valid authorization
cards from a majority of the employees in an appro-
priate unit but the employer, as here, engages in a
course of unlawful conduct which tends both to de-
stroy this majority and to negate the likelihood of a
future fair election, the Board has concluded, with
the approval of the courts of appeals, that the status
quo ante would be most nearly restored and the poli-
cies of the Act best effectuated by an order requiring
the employer to bargain with the union which, prior
to the unfair labor practices, had been designated as
bargaining representative by a majority of the em-
ployees.'
Based upon reasoning such as this, the Supreme
Court, in N.L.R.B. v. Gissel Packing Co.,9 sustained
a See, e .g., N.L.R. B. v. Consolidated Rendering Co, d/b/a Burlington Ren-
dering Co , 386 F .2d 699, 703 (C.A. 2, 1967); United Steelworkers of America,
AFL-CIO [Northwest Engineering Company] v. N.L.R.B, 376 F.2d 770,
772-773 (C.A.D.C., 1967), cert. denied 389 U.S. 932 ( 1967); International
Union, UA.W. [Aero Corporation] v. N.L. R. B, 363 F.2d 702, fn 7
(C.A.D.C., 1966), cert denied 385 U.S. 973 ( 1966); Wausau Steel Corporation
v. N.LR.B., 377 F.2d 369 (C.A. 7, 1967); J C. Penney Co. v. N LR.B, 384
F.2d 479, 486 (C.A. 10, 1967); N.LR B. v Delight Bakery, Inc., 353 F.2d
344, 347 (C.A. 6, 1965).
the Board's remedial authority to issue a bargaining
order in cases in which unfair labor practices have
been committed "that interfere with the election pro-
cesses and tend to preclude the holding of a fair elec-
tion ." 10 The Court indicated that in such cases a bar-
gaining order would be appropriate (1) where the
employer's unfair labor practices are so "pervasive"
and "coercive" that it is the only effective means of
remedying those unfair labor practices, or (2) where
the unfair labor practices, though less substantial, are
nonetheless such that the Board finds that the possi-
bility of erasing the effects of past practices and of
ensuring a fair election by the use of traditional rem-
edies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order."
In our view, under the circumstances of this case, a
bargaining order is appropriate under either of the
standards enunciated above. For, as the Court in Gis-
sel aptly stated,12
. .. a bargaining order is designed as much to
remedy past election damage as it is to deter
future misconduct. If an employer has succeed-
ed in undermining a union's strength and de-
stroying the laboratory conditions necessary for
a fair election, he may see no need to violate a
cease-and-desist order by further unlawful activ-
ity. The damage will have been done, and per-
haps the only fair way to effectuate employee
rights is to re-establish the conditions as they
existed before the employer's unlawful cam-
paign. [Footnotes ommitted.]
And, as the Court added,"
There is, after all, nothing permanent in a bar-
gaining order, and if, after the effects of the
employer's acts have worn off, the employees
clearly desire to disavow the union, they can do
so by filing a representation petition.
The majority disregards the Respondent's unlaw-
ful acts here, because, among other reasons, "efforts
to abandon the union campaign were started unilat-
erally by the employees themselves" and "a basically
free and open atmosphere existed at the University."
We find neither of these statements to be true. In any
event, there is no doubt in our minds that the Re-
spondent herein "interfered with the election pro-
cesses and tended to preclude the holding of a fair
election." This is not a case involving isolated unfair
labor practices directed at a few individuals without
9 395 U S. 575, 610, 615 (1969).
10 395 U. S. at 594.
395 U.S at 614.
12 395 U.S. at 612.
13 395 US. at 613.
RENNSELAER POLYTECHNIC INSTITUTE
evidence of pervasive effect. Here, the Respondent
succeeded in undermining the Teamsters majority
status and in making the holding of a fair election
doubtful, if not impossible. It accomplished this by
establishing and administering a competing labor or-
ganization of its own. Having established such an
organization, the Respondent used it to discuss mat-
ters such as employee health benefits and working
conditions, matters which had caused employees to
support the Teamsters. In addition to bargaining
with employees through its own labor organization,
the Respondent bargained directly with employees,
as it had announced that it would do. Thus, the Re-
spondent made good its announced intention to
grant a benefit which employees had not had prior to
the advent of the Teamsters, that is, direct access by
employees to high-level officials of the Respondent.
And, when the Respondent learned that the leading
Teamsters advocate among its employees was recon-
sidering his position, it told the employee and his
friends that all of the employees could look forward
to material, practical benefits after abandoning the
Teamsters. In addition to this encouragement, the
Respondent helped the former Teamsters advocate
write an anti-Teamsters speech to explain his conver-
sion to the Respondent's viewpoint and the Respon-
dent gathered its employees together to listen to the
speech on paid company time . The Respondent also
prepared petitions by which its employees could disa-
vow support for the Teamsters , assisted employees in
obtaining signatures on such petitions, and permitted
employees to circulate, complete, and deliver anti-
union petitions to various locations during paid com-
pany time. In addition to engaging in all of the fore-
going unlawful activity the Respondent coercively
threatened its employees with the imposition of more
onerous working conditions in the event of unioniza-
tion and unlawfully interrogated them as to their
union activities, membership, sympathies, and de-
sires.
None of the foregoing unlawful acts of the Re-
spondent is disputed by our colleagues. Our only
point of disagreement is as to the appropriate remedy
to be granted in the circumstances of this case. The
remedy which our colleagues provide, an order that
the Respondent cease and desist from the foregoing
unlawful conduct and that the Respondent disestabl-
ish its personnel committee , might prevent such con-
duct from continuing or reoccurring . However, such
an order would merely deter future misconduct. It
would not remedy damage to the Teamsters majority
status which existed before the Respondent succeed-
ed in undermining that majority by a series of coer-
cive acts which include interrogation, threats of re-
prisal, domination of an employee committee , direct
715
bargaining with employees, promises of benefits,
grants of benefits, assistance in preparing antiunion
speeches, and assistance in preparing and completing
antiunion petitions. The continuing and durable im-
pact of such misconduct is self-evident; indeed,
much of the conduct itself is of a "continuing" kind,
e.g., establishment of the continuing unlawful bar-
gaining committee, and unlawful grant of benefits
which continue thereafter. With all due respect to the
majority, the coercive and pervasive conduct in this
case cannot be magically erased by a mere cease-
and-desist order. In reaching this result we find ap-
plicable to the case at bar the reasoning set forth in a
decision of the U.S. court of appeals for the circuit in
which this case arises, Seeler v. The Trading Port,
Inc.14 There, in granting a 10(j) injunction, the court
held that a bargaining order was "a just and proper
means of restoring the pre-unfair labor practice sta-
tus quo and preventing further frustration of the pur-
poses of the Act." After noting Gissel holding, the
court stated:
Just as a cease and desist order without more is
ineffective as final relief in a Gissel situation, it
is, in certain cases, also insufficient as interim
relief. If an employer faced with a union de-
mand for recognition based on a card majority
may engage in an extensive campaign of serious
and pervasive unfair labor practices, resulting in
the union's losing an election, and is then merely
enjoined from repeating those already successful
violations until final Board action is taken, the
Board's adjudication machinery may well be
rendered totally ineffective. A final Board deci-
sion ordering a new election will leave the union
disadvantaged by the same unfair labor-practic-
es which caused it to lose the first election. Even
if the Board finally orders bargaining, probably
close to two years after the union first demand-
ed recognition, the union's position in the plant
may have already deteriorated to such a degree
that effective representation is no longer possi-
ble. [Footnote omitted.]
Thereafter, the court noted the Supreme Court's
statement in Gissel that when a union loses its major-
ity as the result of employer unfair labor practices, it
is essential not to freeze the present situation. Thus,
in the words of the Supreme Court, "The damage will
have been done, and perhaps the only fair way to
effectuate employee rights is to re-establish the con-
ditions as they existed before the Employer's unlaw-
ful campaign."
In view of the foregoing, we conclude that the em-
14 Thomas W. Seeler, Regional Director of the Third Region v. The Trading
Port, Inc, 89 LRRM 2513, 77 LC 1 10,900 (C A. 2, 1975)
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees' majority designation of the Teamsters as ex-
pressed in their authorization cards provides a more
reliable measure of the employees ' true desires than
would be provided by an election. Accordingly, in
order to protect the employees' statutory rights and
interest, we would find that the Respondent's viola-
tions of Section 8(a)(1) and (2) of the Act are so per-
vasive and coercive as to warrant a bargaining order
in addition to the other remedies provided by the
majority opinion. In any event, we would find that
such an order is warranted because of our view that
the possibility of erasing the effects of the
Respondent's unfair labor practices and of ensuring
a fair election by the use of traditional remedies is
slight and that employee sentiment , once expressed
through authorization cards, would, on balance, be
better protected by a bargaining order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated Federal law by un-
lawfully dominating a purported labor organization
representing our employees and by committing other
acts of illegal coercion, we notify you that:
WE WILL NOT dominate, assist , or interfere
with the administration of the Non-Exempt Per-
sonnel Advisory Committee, or any other labor
organization of our employees, nor will we give
support to it.
WE WILL disestablish the Non-Exempt Person-
nel Advisory Committee as representative of
any of our employees for the purpose of dealing
with us with respect to wages or any other terms
and conditions of employment.
WE WILL NOT coercively question our employ-
ees concerning their union activities, sentiments,
or desires.
WE WILL NOT indicate to our employees that
their working conditions will be less pleasant if
they choose to be represented by a labor organi-
zation.
WE WILL NOT write antiunion speeches for our
employees, or prepare antiunion petitions for
them.
WE WILL NOT assist employees to obtain signa-
tures to an antiunion petition, or permit employ-
ees to circulate, complete, and deliver such an-
tiunion petitions to any offices during paid
working time.
WE WILL NOT bargain directly with individual
employees and promise them improvement in
working conditions for the purpose of discour-
aging membership in Local 294, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.
WE WILL NOT announce or grant new benefits
to influence employees' choice of a bargaining
representative or to induce them to reject and
refrain from activities in support of the above-
named Union, or any other labor organization.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise
of their rights to self-organization, to join or as-
sist Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation, and to engage in other concerted activi-
ties for the purposes of collective bargaining or
other mutual aid or protection, or to refrain
from engaging in such activities.
RENNSELAER POLYTECHNIC INSTITUTE
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held on various dates between Au-
gust 26 and September 12, 1974, at Albany, New York, on
complaint of the General Counsel against Rennselaer Poly-
technic Institute, herein called the Respondent, or the Em-
ployer. The charge was filed on May 6, 1974, and the initial
complaint issued on June 26, 1974. The issues presented
are whether management representatives violated Section
8(a)(1) and (2) of the Act . Briefs were received after the
close of the hearing by the General Counsel, the Respon-
dent, and the Charging Party.
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Rennselaer Polytechnic Institute is a private, nonprofit
educational university, chartered by the State of New
York . It maintains its campus in the city of Troy, New
York. Annually the Respondent receives gross revenues in
excess of $ 1 million with no restriction upon its use. During
the same period of time, it receives goods valued in excess
of $50,000 transported to its Troy location directly from
out-of-state sources . I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
RENNSELAER POLYTECHNIC INSTITUTE 717
II. THE LABOR ORGANIZATION INVOLVED limited to the precise allegations in the complaint as it
I find that Local 294, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America , herein called the Union or the Teamsters, is a
labor organization within the meaning of Section 2(5) of
the Act.
A. A Picture of the Case
The University employs many categories of employees,
from academic professors to unskilled manual laborers;
none of the group has engaged in the traditional form of
collective bargaining through a regularly established union.
At the end of February 1974 one of these groups-approxi-
mately 150 employees-started a mass movement towards
joining Teamsters Local 294. They are called the physical
facilities group, for they are essentially service and mainte-
nance employees who care for the open land, physical
equipment , buildings , and appurtenances ; included are
such classifications as groundsmen , utility men, electri-
cians , mechanics . truckdrivers, etc. A majority quickly
signed union authorization cards and on March 1, 1974,
the school received the Union's letter demanding recogni-
tion and collective-bargaining rights . On March 4 the Re-
spondent answered , denying the request and expressing its
view that the employees should voice their desires in the
matter via NLRB secret ballot instead . The Union did file
such a petition asking the Board to hold an election.
In due course , a Board hearing was held under that peti-
tion on April 1, where the parties signed a consent-election
stipulation, in agreement that an election be held. They
also agreed, in writing, as to which employees it was that
were involved in the case and that should therefore be eli-
gible to vote. The election was scheduled for May 10 and
the conventional notices to that effect were posted about
the work premises.
While all this was going on the Respondent embarked
upon a studied campaign , beginning shortly after the
Union's demand letter, aimed at persuading the employees
involved that they were better advised to take their prob-
lems, or demands, whatever they might be, directly to man-
agement , instead of dealing with their employer through
the Teamsters , or any other outside labor organization.
The message was conveyed by high representatives of man-
agement in very frequent speeches to groups of employees
assembled during working hours for that purpose. There
came a time when a substantial number of employees
changed their minds , and decided against using the Union
as their bargaining agent . Aware of this development, on
May 6 the Union filed a Labor Board charge against the
university, accusing it of unlawfully coercing the employ-
ees. On investigation the Regional Director found merit in
the charge and issued a complaint . The scheduled election
was never held; instead a hearing in this proceeding took
place for the purpose of taking evidence as to the
Respondent 's alleged unfair labor practices.
B. The Issues Presented
As in all Board proceedings , the issues to be decided are
stands at the start of the hearing . This complaint is limited
strictly to alleged violations of Section 8(a)(1) and (2) of
the Act . And, as always , the issues are both factual and
legal, again as precisely detailed in the complaint . Did the
Respondent engage in the conduct spelled out in successive
paragraphs of the complaint? Did such conduct, where
found to have occurred as alleged , constitute violations of
the specified statutory proscriptions?
It is important to clarify this matter at the outset in this
case because the complaint , as originally issued on June 26,
1974, contained other critical , and substantial allegations-
both factual and legal-that have since been withdrawn.
Indeed , the complaint was amended four times , the last
amendment being made on August 19, only I week before
the hearing . It will be recalled that on March 4 the Respon-
dent refused to bargain with the Union on request . As ini-
tially drawn the complaint alleged exactly what was the
appropriate bargaining unit on that day, that the Union in
fact had then been authorized to bargain forthwith by a
majority of the employees in that unit , that the Respondent
had refused to bargain on request , and that by such refusal
the Respondent had violated Section 8 (a)(5) of the Act. It
is several of these allegations that were deleted before the
start of the hearing . As it now reads , the complaint con-
tains no allegation that the Respondent refused to bargain,
it does not specify as of what date the Union achieved
majority representative status among the employees, and it
does not charge the Company with having violated Section
8(a)(5). In fact , all references to that section have been
removed from the picture . As stated , the complaint says no
more than that the Company "interfered with, restrained
and coerced" the employees in violation of Section 8(a)(1).
In place of all these now deleted paragraphs , a new and
different contention was added . It is that:
Commencing on or about March 1 , 1974, and continu-
ing to date, Respondent engaged in the conduct set
forth in Paragraphs VIII and IX , in order to under-
mine Local 294 and destroy its majority status, and
said conduct tended to interfere with the election pro-
cess , and to preclude the holding of a fair election.
If the details of the ultimate complaint and its predeces-
sors in this case are set out in minute detail here, it is
because this last allegation , in reality more an argument
than a factual or legal assertion , in truth illumines the prin-
cipal issue of the case . The traditional 8(a)(1) complaint
calls for no more than an order that the Respondent cease
and desist from coercing its employees, and that it post a
notice to the effect that it will not repeat such offenses. In
contrast, the traditional 8(a)(5) complaint seeks to obtain
an affirmative order against the employer that it now bar-
gain with the majority representative of its employees in
order to undo the coercive effect of its earlier refusal to
bargain . The truth of the matter is that the General Coun-
sel, here, and the Union seek as their true substantive ob-
jective an order directing the Respondent to bargain with
the Teamsters forthwith, and never mind holding any elec-
tion at all . The clearest fact emerging from the unduly ex-
tended record is that while the format of the pleadings has
been altered, so as to present what is ostensibly a simple
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"interference" case, the reality of the litigation is that this is
a refusal-to-bargain case . And in the appraisal of the total
evidence the relative importance of this primary contention
must be kept in mind.
If only the literal complaint be considered, it would ap-
pear that a number of highly disputed issues must be decid-
ed: (1) Did the Respondent's representatives violate Sec-
tion 8(a)(1) in the very minute respects listed? (2) Is the
bargaining unit set out in the complaint appropriate for
purposes of collective bargaining? (3) Did an adequate
number of employees included in that unit authorize the
Union to bargain on their behalf-at the critical moment,
whenever that may have been? This one issue divides into
two substantive questions : (a) Are the 90 cards received in
evidence authentic? (b) Are they reliable as proof of intent
to authorize immediate bargaining? (4) Did the Union de-
mand recognition at a time when valid majority authori-
zation existed? If, however, the case be viewed in logical
perspective , a number of these literal issues will appear to
be of minor importance. The shifting of position by the
General Counsel , the apparent inconsistency between the
essential thrust of the complaint and a number of its com-
ponents elements , stem from application here , seemingly
for the first time by the General Counsel, of two relevant
and significant decisional precedents. In N.L.R.B. v. Gissel,
395 U.S. 575 (1969), the Court upheld a Board rule of law
that when an employer , on demand , refuses to bargain with
a union which in fact has been authorized by a majority of
the employees , and then engages in coercive , illegal con-
duct of such severity as to make it impossible to hold a fair
election , it is proper to order immediate bargaining without
an election. In Steel-Fab Inc., 212 NLRB 363 (1974), the
Board recently held that when directly coercive unfair la-
bor practices are of a sufficiently aggravated nature, again
such as to "preclude the holding of a fair election," the
question whether or not the employer also violated Section
8(a)(5) of the statute is an irrelevancy. It is for this reason
that the refusal-to-bargain elements of the original com-
plaint in the case at bar were withdrawn.
C. Rationale Underlying This Decision
In my considered judgment, after careful study and eval-
uation of the activities carried on by representatives of the
University in this case , the unfair labor practices found
could not, under established Board precedent, justify in
remedy an affirmative bargaining order without first af-
fording the employees involved an opportunity to express
their desires in a regularly conducted election. In proceed-
ings of this kind , no single prior decision can predetermine
the correct decision to be reached in a later case ; determi-
nation in each must rest upon the special complex facts of
the case. The determining rule of law is that enunciated by
the Supreme Court in Gissel. It says that when an employer
refuses to bargain and then proceeds to commit unfair la-
bor practices , you order an election , or a new election,
when the unfair labor practices are minor, but you order
immediate bargaining , without an election, when they were
major . The line of demarcation does not separate those
cases where no unfair labor practices are committed from
those where violations of the Act are found. Rather, it
deals only with cases where unfair labor practices have
occurred, placing the minor violations cases in one class
and the major violation cases in the other.
But with resolution of the truly major issue adverse to
the basic theory of complaint-regardless of its perhaps
irrelevant further allegations-the subordinate issues listed
above become moot. As the Board stated in May Depart-
ment Stores, 211 NLRB 150 (1974), no purpose would be
served by reporting in detail, and deciding, questions in-
volving the Union's asserted majority status. See also,
Franklin Park Mall, 212 NLRB 21 (1974). Especially does
this approach appear warranted here, as the subsidiary,
and now mooted questions, present novel and difficult is-
sues better considered by the Board in more appropriate
circumstances.
For example, the parties strongly litigated the appropri-
ate unit at the hearing, and they did so in terms of the
classic criteria long applied in standard representation
cases, where the whole question is determination of the
correct unit for collective-bargaining purposes. But the ac-
tivities which degenerated into this proceeding were all lim-
ited to the approximately 150 physical facilities service and
maintenance men; these were the only persons approached
by the Union, these were the only employees who signed
cards and sought to make common cause against the
school, and these were the only ones the Respondent's offi-
cers tried to dissuade, coercively or otherwise. That ev-
erything that happened, by employees and employer alike,
was limited to this group could not be clearer, for after a
month of conflict the Respondent expressly agreed these
and only these persons were to be polled in the Board's
election . And even when the scheduled election was set
aside, after still another month, the Company attempted to
compel the Labor Board, through collateral state court ac-
tion, to hold the election, again precisely limited to these
employees.
At the hearing on complaint, the Respondent for the
first time tried to add to the service and maintenance group
about 40 part-time and casual persons who are used, as the
unpredictable occasion arises , to work at the university
field house, where athletic contest are held, and where pro-
fessional entertaining companies like the Icecapades come
to town. A number of these casuals work less than 10 hours
per biweekly pay period, all of them are either students or
hold full-time jobs elsewhere, and all of them have very
little contact with the permanent group, which was in-
volved in the events here being considered. But violations
of Section 8(a)(1) of the Act have nothing to do with ap-
propriate unit questions; if they are committed they re-
strain and coerce the people who are so reached, who are
affected by the employer's misconduct. And if it can be
said that a threat to fire A of necessity has relayed effect on
B, because the two work for the same employer, there is no
coherent reason for believing the spreading intimidation
stops at the line where the Board tomorrow may draw the
perimeter of an appropriate unit. Since the affirmative bar-
gaining order sought here would be aimed at remedying
generally coercive conduct, how about the professors, who
park their cars where the groundsmen work, and therefore
probably also learned of their employer's illegal rejection
of unionization? Perhaps the answer in this novel situation
RENNSELAER POLYTECHNIC INSTITUTE 719
would be to ignore the concept of appropriate bargaining
unit altogether.
In turn , majority representative status is inseparable
from unit determination-the 100 percent against which
valid cards are counted. In an 8(a)(5) case the time for
testing is the moment of demand and refusal . What is the
critical time in an 8(a)(I) case? The General Counsel did
not say; he left the matter open. This Union's cards are
variously dated. Moreover, the clearly coercive conduct of
the Respondent came at the end of April, when its agents
directly assisted the principal union ringleader to prepare
documents used to persuade the rest to abandon the
Union. All that went on before was relatively innocuous. Is
the Respondent entitled to earlier dissipation that may
have been induced by no more than permissible campaign
propaganda by the employer?
Were it necessary, as it is not, I would decide on this
record that the approximately 90 cards in evidence are au-
thentic and valid, that the unit as described in the com-
plaint constitutes a correct grouping for purposes of
remedial collective bargaining, and that the Union in fact
represented a majority of those persons during the perti-
nent events.
D. Violations of Section 8(a)(1)
In excessive detail the complaint describes alleged coer-
cive statements by management agents in repetitive, de-
scriptive, and highly conclusionary language . The witness-
es, on both sides, colored their stories to an extreme extent,
again and again mixing opinion , legal conclusion , and even
inflamatory language , with factual recital . Shorn of all the
verbiage, the conduct by the Respondent which General
Counsel now says makes it impossible to hold a fair elec-
tion , can be slotted into six items . (1) Upon learning that
the principal stimulus inducing the mass movement to-
wards the Teamsters was a rumor that the school planned
on contracting away to an independent contractor all the
work these employees were doing , the Respondent assured
them it had no such intention and would not give away
their jobs. (2) The school bargained with an employer cre-
ated employer-employee committee, while the Teamsters
question concerning representation was pending , thereby
doing violence to both Section 8(a)(1) and (2). (3) The pres-
ident of the University personally had breakfast with a
couple of utility men in order to change their minds about
the Union. (4) The vice president invited the leader of the
union campaign to dinner at a fancy restaurant , with the
wives also present. (5) A supervisor helped William Gro-
gan, the union activist , write both an antiunion speech and
an antiunion petition , and arranged for successful use of
the document on paid company time. And, (6) company
officers solicited the grievances of the employees , unlawful-
ly interrogated employees, and invited them to resolve
them by direct dealings with the Respondent, in place of
an outside union.
1. The A.R.A. rumor
A critical union meeting took place on the evening of
February 27, 1974, a Wednesday, where about 50 persons
signed Teamster cards. Shortly before-during that week?
towards the end of the month?-there had been a rumor
that the school was going to contract with A.R.A., an unre-
lated organization, to have all the physical facilities work
done by that company, an independent employer. In Feb-
ruary 1972 the school had made separate contracts with
A.R.A. for its cafeteria employees and for its janitorial em-
ployees; these contracts were still in effect in early 1974.
There is uncontradicted testimony that some of the physi-
cal facilities supervisors, themselves in danger of losing
their jobs, also knew of the rumor. In about mid-March the
school announced no such contracting away of jobs would
take place. It is conceded the employer knew this was the
principal reason why the men had joined the Teamsters.
Dr. Richard Grosh, the school president, testified that a
letter from A.R.A., offering to do the work under contract,
reached his office late on Thursday, February 28, and that
he first read it only the next day at about 7 a.m. while
leaving town on a train. This would be March 1, the very
day the Union's demand letter came to the school in mid-
day. Grosh said he personally had not previously heard
any mention of the proposal, and that when he rejected the
idea early that morning, he as yet had heard nothing about
the union activity. There is no reason for not believing him.
It does not follow, however, that there had not been some
talk about the subject among other members of manage-
ment ; after all there is a business manager, a budget direc-
tor, etc.; the rumors certainly were not born among the
utility men. What is clear, however, and what is important,
is that there is nothing to support a finding that the Re-
spondent had decided to make the change before the self-
organization activities started. This means it did not
change position in consequence of the union activity, or in
order to influence it. At best it could be said the Respon-
dent decided not to do what it had not decided to do.
Exactly by what reasoning this act-assurance to the em-
ployees that it would not discharge them-can be deemed
interference with the right freely to join or not join a labor
organization , is not clear.
One analogy could be to the out-and-out bribe, or its
converse: The employer gives something the employees did
not have before, or takes away from them what they used
to enjoy-in each case to apply pressure. See Exchange
Parts, 375 U.S. 405 (1964). Does letting them keep, or not
depriving them of, what they have, fit into this theory in
any way? The General Counsel argues that what the school
gave these people was "assurance ," surely, it is said, some-
thing of value. But did Rennselaer have an alternative? To
avoid what is now called illegal on its part, should it have
fired everybody, or just kept the jitters alive in them?
Another possible analogy is to the rule of law that when
the employees are trying self-organization, the employer
must not change his established methods. If he has been
giving periodic merit raises he must not stop, he must con-
tinue giving them. Dotson IGA Foodliner, 194 NLRB 192
(1972). In fact, there was a merit raise system in being in
this very case, and the Respondent was careful to carry it
through on July 1. Had it held back this year, the charge of
purposeful, ill-motivated denial would quickly have fol-
lowed. Yet in the face of the rule there are contentions
advanced in support of this complaint that by reminding
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees of this established benefit on their jobs. by
promising to adhere to its established practice , the school
in a sense bribed the employees . Be that as it may, viewed
in the light of these cases , the Respondent was caught in a
Hobson's choice : Charges of illegal firings if it went
through with any plan it may have had, charges of prohib-
ited coercion if it decided against discharge . In N.L.R.B. v.
Dorn 's Transportation Company, Inc., 405 F.2d 706 (C.A. 2,
1969), the court said : "Damned if you do, damned if you
don't."
With only slight hesitation , I find the Respondent did
not violate the statute by assuring the employees it would
not contract away their jobs . With certainty , I am of the
opinion that even if by some devious reasoning this deci-
sion could be construed as a violation of Section 8(aXI),
such an unfair labor practice falls in that category of minor
offenses which , under the Gissel rule, do not even tend to
support a bargaining order without an election.
2. Non-Exempt Personnel Advisory Committee
The University uses the phrase nonexempt employees to
mean persons who are covered by the Fair Labor Stan-
dards Act; included are about 250 office secretaries, 25
security guards, some highly skilled technicians , and the
service and maintenance physical facility people involved
in this case . In 1972 the Respondent established the Non-
Exempt Personnel Advisory Committee, consisting of per-
haps 15 employees selected from among all the categories
of nonexempt employees , and a few management repre-
sentatives-such as Oliver Bonnert, business manager, Ed-
ward Braum , superintendent of physical facilities, Homer
Doran, personnel director . Employee members participate
only if selected by the highest supervisors in the school; an
occasional employee voiced a desire to be placed on the
committee by asking his supervisor , but only achieved the
status if and when approval came from the highest authori-
ties. The committee met about once a month , in the school
trustees room , during paid worktime ; its activities were all
programmed out of the personnel office-notice of meet-
ing for each member , skeleton list of subjects to be dis-
cussed , minutes reporting what had happened at each
meeting-all emanated from personnel.
The purpose of all this was so that there could be discus-
sion among the members-management and employee
representatives-of all kinds of subjects directly related to
conditions of employment . At the start there was much
talk about proposed changes in the health and hospitaliza-
tion insurance which covers all employees ; the Company
wanted to switch from a Connecticut General Insurance
policy to a Blue Cross-Blue Shield arrangement . The cost
was going to change and the employees' contributions
would be directly affected . Proposals were made, ideas
were exchanged , and recommendations from the entire
committee were then forwarded to the president and the
board of trustees , the authorities which alone have power
to alter any conditions of employment . With that matter
resolved , the next major subject became the school 's hand-
book, a 31-page printed brochure which details all sorts of
employment conditions-including promotions , layoffs,
merit ratings, leaves , vacations, holidays, overtime , etc., in-
cluding even a grievance procedure . The school wanted the
whole arrangement reexamined , reevaluated , opened for
free discussion as to changes in every respect. The employ-
ee members of the committee were encouraged to make
suggestions , the supervisors voiced their ideas , the employ-
ees did also, the matter was taken up at one meeting after
another . A written comprehensive revision was agreed
upon by the January 1, 1974, monthly meeting, and in con-
sequence the personnel office prepared copies of the pro-
posed new handbook and distributed them for a final look
to every member of the committee . The personnel office
also announced at that time that there would be a final
look at the proposal at the March 1 meeting scheduled to
take place . Apace with these matters , other suggestions
were made by employees from time to time , including mat-
ters not mentioned in the handbook . The last two meetings
of this committee , held exactly as in the past , took place on
March 1 and April 19, 1974.
To the extent that the Non-Exempt Personnel Advisory
Committee consisted of employees , I find that it was a
labor organization formed , dominated , and assisted by the
employer, within the meaning of Section 8(a)(2) of the Act.
By the activities of its supervisors in bargaining with the
employee members of the committee representing the
physical facilities employees involved in this case during
March and April, the Respondent violated Section 8(a)(2).
And, of course, by the same activity the Respondent also
illegally interfered with the statutory right of these employ-
ees to carry forward the Teamsters union campaign , in vio-
lation of Section 8(a)(1). Drives, Inc., 172 NLRB 969
(1969); Hydraulic Excessories Co., 165 NLRB 864, 868
(1967).
Repeatedly throughout the hearing the Respondent's of-
ficials simply stated the school was not "bargaining" with
its employees through this Committee , that the employees
placed on it as members by the employer were not "repre-
senting" their fellow workers . The contention is unconvinc-
ing and completely belied by the record evidence. The
managers admitted the members were expected to propose
changes in employment conditions suggested by other
workmen, the minutes of the meetings-always prepared
by management agents and delivered to each member-
were supposed to be passed around among all the employ-
ees, and the ultimate purpose was that the deciding author-
ities would make some changes in employment conditions.
The supervisors who sat on the committee and discussed
proposals with the employee members may not have had
authority to bind the school by their own "agreement," but
collective-bargaining negotiators very frequently agree on
contracts subject to higher approval . This was collective
bargaining in the real sense . The entire defense to this ele-
ment of the complaint is no more than a play on words; it
was even suggested that the school was "dealing" with the
representatives of the employees , not bargaining with
them. A committee acts for its principals ; here the few top
supervisors spoke for the Respondent and the selected em-
ployees spoke for the total employee complement. This is
exactly how collective bargaining proceeds in all contract
negotiations . No need at this late date for citing futher
decisional precedents.
RENNSELAER POLYTECHNIC INSTITUTE 721
3. The breakfast meeting
At this point it is necessary to appraise the position of
William Grogan in this total story. He was the "key" man
in the Teamsters campaign, it was he who started the
whole idea, approached a Teamsters business agent, invit-
ed his interest in the school, and opened the first union
meeting, sitting at the head table, introducing the Team-
sters professional business agent. It was also Grogan who
solicited signatures to cards at both meetings and through-
out the school grounds, and it was his testimony that was
offered to prove authenticity of the bulk of the cards at the
hearing. He changed his mind in the heat of the campaign,
and became as influential a force in persuading the em-
ployee to reshape their thinking as he had been at the start
Now he shifted completely to the other side, he invited
intimate conversations with the higher authorities and
asked for ideas on how to resolve employee grievances
without the Union in the picture, he drafted a speech he
wanted to make to the assembled employees to explain
why they should "pull out" the representation petition and
forget about Teamsters, he conceived the notion of having
them sign a petition requesting that the election be can-
celed, and it was he who delivered the petition to the
Teamsters office One can easily understand his testimony
that when he arrived there, and handed it to the Teamsters
officers, they were "speechless."
On April 29, Grogan read his antiunion speech to the
employees assembled (with the school helping to get them
together for him, it is true), invited signatures to his peti-
tion, going from one shop to another looking for more
names, and in the afternoon delivered it to the Union. On
May 6, the Union filed its charge against the University
and, of course, the May 10 election never took place. With-
in days of this the Union called Grogan to account and
told him he either told his story to them voluntarily or he
would be subpenaed. He was reluctant, certainly embar-
rassed. When he asked their advice the school officials told
him they could not help, because he was a grown boy and
must decide for himself He gave three investigation affida-
vits. At the hearing he was the principal witness in support
of the complaint, on the stand perhaps as much as 2-1/2
days. There are credibility questions, not very substantial
ones, but disagreements among witnesses nevertheless. All
witnesses aim to make their stories convincing, although
not necessarily by lying Grogan's testimony has far more
than the usual coloration, and, as shown by his repeated
injection of conclusionary phrases as he told about what
was done and said, and by his very revealing demeanor, it
is clear he was trying to atone-in the eyes of the Union-
for having in a real sense let them down after leading them
on. Why Grogan had a change of heart about the value of
the Teamsters in the University is a question Did it arise in
him in consequence of the logic and persuasiveness con-
tained in perfectly lawful expressions of opinion voiced by
the supervisors9 Or was his mind instead twisted back
when the Respondent warped it by coercive threats and
irresistible bribes9 There is no question at all, however, but
that he did turn against the Union at the end of April It is
this turncoat position in which he found himself at the time
of the hearing that makes his testimony very questionable.
One morning at 8 o'clock the president of the University
and Bonnert, the business manager, had breakfast, by ap-
pointment, with Grogan, Small, and Mathews in the stu-
dent union, the campus building devoted to social activi-
ties. Small, also a groundsman, was perhaps the second
most active agitator toward unionism, and Mathews just
another utility man There was talk about the union activi-
ties going on, and before the 2-hour visit was over Grogan
was talking about putting an end to it all. It is a contention
of the prosecution that this breakfast was brought about by
the school officers, that they there put pressure upon Gro-
gan and the other two, that they made improper promises,
indeed that the very fact of the president eating so inti-
mately with utility men of necessity bought their souls. If
the breakfast story be taken out of context, if it truly cli-
maxed a scheme by the employer, there would be much
persuasion in the General Counsel's argument. The truth is
otherwise, Grogan himself asked for the private meeting,
and even specified in advance who it was he wanted to talk
to, and Grosh made no promises at all. In fact he went out
of his way to make them understand he could not, and was
not, holding out any inducements.
The meeting followed a talk Grogan had with Bonnert
the day before. According to Bonnert, Grogan, accompa-
nied by Mathews, approached him and asked, "Is it possi-
ble that we can meet with the President?" and when he,
Bonnert, asked why, Grogan answered, "Well, I'd like to
talk to him about this Union matter. . . . we'd like to do it
as soon as possible, before Monday." Again when Bonnert
asked why, Grogan answered, "Well, you know what's
coming up Monday." Bonnert said he would see and asked
was it all right to have Mr. Green, the vice president, but
Grogan answered no. Bonnert then asked could he be pre-
sent and Grogan said yes. Bonnert continued that he
checked with Dr. Grosh and arranged for breakfast the
next day. Grogan started by saying he had an earlier talk
that day with Bonnert, in which the supervisor said some-
thing which caused him, Grogan, to "come to the conclu-
sion that if we wanted to, three or four of us could get
together and talk to R.P I , about our problems." Grogan
then testified he went to Mathews to say: ". . . there was a
possibility that we could set up a meeting and talk this over
... " The two then returned to Bonnert and said ".. .
we won't speak with Mr Green, we don't want nothing to
do with Mr. Green." After agreeing to this further request,
Bonnert then asked, still according to Grogan's story:
"Well who do you want to meet with? ... who will be
included in on this, who, what people, how many people?"
And Mathew answered: Grogan, Small and himself. The
critical part of Grogan's testimony is what came next:
"And then I said, `Well, I don't want to rush you or any-
thing, but you know what's coming up in three days, and
we've got to get an answer soon.' " Later in his story Gro-
gan put this last idea this way: "We'd better hurry up,
because you know what is going to happen-what is com-
ing up in three days "
In the face of these statements at the hearing, Grogan
insisted it was not he who had suggested the meeting. I do
not believe him, I think his own words prove the contrary
Mathews was wearing a union button that day, and the two
of them told of how Bonnert commented upon it, and, as
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the three discussed the Union, Bonnert suggested the ques-
tion of any merit in the Union was "debatable." As a
witness Grogan tried to convey the idea that this was the
supervisor's way of asking them to a meeting with manage-
ment. But Grogan also testified Bonnert had suggested the
meeting earlier, during his first talk with the supervisor. He
also said Bonnert asked them with whom they wished to
meet; it is not likely Bonnert would let the employees
choose if the scheme was of his doing. Mathews quoted
Grogan as saying. ". . . this [a debate] is what we'd like to
do . . . we'd like to discuss our grievances.. . . " An en-
thusiastic unioneer, invited by management to discuss the
possibility of putting an end to his union campaign, 3 days
before a scheduled Board hearing on a representation peti-
tion, does not tell the employer to hurry up the matter
because "we must have an answer soon." An answer to
what? Who was asking here, Bonnert or Grogan? A final
fantasy is Grogan's explanation at the hearing 7 months
later that in his mind he had been thinking of the university
trustee meeting scheduled for 3 days later, but never talked
about that at the time. There is no mention in this long
record of anyone talking, or thinking of that particular
trustee meeting, or of any other trustee meeting. What ev-
erybody was thinking of, and no doubt discussing all over
the place, was the announced Board hearing. Both Bonnert
and Grosh recalled, with supporting collateral details in the
retelling, that the meeting took place on March 28, 3 days
before the Board hearing. The employees tried to push it
back to March 14; they were wrong.
For the most part Grogan cannot be believed where the
school officials gave at least plausible contrary testimony.
A very important, if not the most important question about
the next day's breakfast, is whether, as the complaint alleg-
es, the president did promise them a quid pro quo for aban-
doning the Union, or whether, as he testified, he told them
very clearly he was not making any promises at all. In his
first version of the breakfast conversation Grogan denied
flatly that Grosh told them he was making no promises. On
the witness stand again a day later he reversed himself and
directly admitted that was exactly what Grosh had said.
And this is also the testimony of Dr. Grosh and the other
two employees. As to what was said at the breakfast, the
three employees could not agree at the hearing. I therefore
accept it as Dr. Grosh recalled. He started by asking what
the men had on their minds, and Grogan said he was sorry
the union activity had gone so far, it could not be stopped,
but that he and the other two wanted to tell him what their
problems were. Grogan and the others then listed a num-
ber of items of concern to them-job security, worry about
A.R A. contracting, poor supervision, the school hiring
outsiders to do the high voltage electrical work which the
physical facilities men could as well perform, the fact that
tall trees were trimmed by contract arrangement instead of
by use of the guardsmen. Grosh and Bonnert listened.
' This whole business about the breakfast was belabored
beyond reason at the hearing. Just one more detail will
suffice here. Later that day, the 28th, and again on the
29th, Grosh met three or four times with groups of employ-
ees, where some of them spoke of their reasons for joining
the union and asked questions. Did Grogan request of
Grosh that he talk to groups of employees, or did manage-
ment invite the gatherings to elicit grievances, and buy the
employees off in violation of Section 8(a)(1), as the com-
plaint alleges? Again, Grosh testified the three told him the
employees wanted to get things off their chest and that he
should therefore talk to them with no lower supervisors
present. Mathews testified instead it was Grosh who asked
did the three of them think he should talk directly to the
men. This time it was Grogan who agreed with Grosh's
version: "... we said that one big step is to talk to the
men and tell them the story, what it is. ..." Of course I
credit Grosh, and I find (1) it was the employees who asked
Grosh to meet with them, (2) he told them unequivocally
he could not, and was not making any promises, and (3)
the employees asked him to talk to and listen to the rest of
the workmen. Grosh did that. In each of the three or four
group talks he had on March 28 and 29, as also in a num-
ber of other planned talks various supervisors gave to em-
ployees right through all of March and April, the manage-
ment people conveyed the thought that employees could
resolve whatever problems they had by direct dealings with
the school officials, that there was no need to resort to a
bargaining agent involving outsiders. The record is clear
and therefore there will be no need to repeat it again, that
no supervisors ever promised anything at all, that many
times Grosh and others explicitly said they were making no
promises, indeed that throughout the events the Respon-
dent made no change of any kind in conditions of employ-
ment-either a benefit or a disadvantage to the employ-
ees.'
An unusual but very significant aspect of this organiza-
tional campaign is that despite all the talk of what the
employees wanted, what their problems were, discussions
of their reasons for turning to the Teamsters, they were not
seeking additional benefits in those conditions of employ-
ment commonly called economic subjects of a collective-
bargaining agreement. There was practically no talk of di-
rect raises, more vacations, greater fringe benefits, or
things of that kind. And maybe this is why the Respondent
did not promise them anything-they never asked. The
major gripe-after the worry about losing their jobs alto-
gether to A.R.A.-seems to have been the past inability of
the employees to reach beyond their immediate, low super-
visors, and be heard by the president, or Mr. Green, or Mr.
Doran, the personnel director, or maybe even by the trus-
tees themselves. And this is why the higher officials now
went about telling them that henceforth they would be able
to do that; they even excused their seeming indifference of
the past towards the physical facilities group by explaining
i There had been 3 years before all this, a disagreement between Thomas
DeMayo, a groundsman, and his immediate supervisors over whether De-
Mayo's rather extended absence had or had not been justified, and in conse-
quence a letter of criticism had been placed in the man's personnel file At
a party which the Company gave some employees one day, Mr Green
asked DeMayo what had started all this union business, and DeMayo said
he was still worried about that letter, and complained he had never been
able even to talk to any higher supervisors about it, the door to the impor-
tant management people was always closed to him Green told him, in
keeping with the general tone of the Respondent's then position, it was time
the big bosses did some listening, and that DeMayo could come to his office
and see him personally DeMayo went, Green found the letter in the file,
and, after listening to DeMayo's explanation of his absence of 3 years earli-
er, tore up the letter and threw it in the waste basket
RENNSELAER POLYTECHNIC INSTITUTE
how there had been extreme money shortage complica-
tions, changes of administration, other pressing matters
now somewhat taken care of and not quite so urgent.
And again the nebulous but most important question of
the whole case comes to the surface. An employer has the
right-even in the heat of an union organizational cam-
paign-to express its opinion that direct dealings with
management are preferable to collective bargaining
through a union. If this direct dealing arrangement hap-
pens to be what the employees themselves want, but were
unable to wrest from the employer in the past, and the
company now agrees to give it to them, is the employer
doing violence to the statute at all? If the employer may
express this opinion but only does so when a union appears
on the scene, and for the purpose of persuading the em-
ployees, to abandon the plan, is it then an unfair labor
practice.
4 Lunch and dinner
As the month of April wore on, Grogan decided there
was no purpose it>rcontmuing the union campaign and that
steps should be taken to avoid the Board election ev-
erybody knew was coming on May 10. At the hearing he
explained this new frame of mind in terms of what he told
fellow employees at the time, what he told the school offi-
cers then, and, finally, just why he did what he did. He said
he had become tense, the responsibility was too great, his
digestion became impaired, his family life suffered, he was
losing sleep. He testified quite clearly that toward the end
of the month he, and other leading union proponents, were
saying to one another they were convinced the Union was
going to lose the election. Interwoven throughout this recit-
al Grogan injected another thought-and it was that the
Respondent's improper use of the advisory committee, its
granting of benefits so directly to the employees via the
committee, was the real reason for the disaffection, his as
well as that of the other employees. He said he had com-
plained to Bonnert and Ramoth about the school using the
committee as a union-busting device (The fact is the hand-
book revision suggestions "agreed" upon by the committee
applied to all the nonexempt employees, not only the phys-
ical facilities men, and that it was Grogan himself who had
posted on the bulletin board the minutes of the last com-
mittee meeting.) This was Grogan presuming to decide the
principal issue of this case, giving his opinion from the
witness stand that by its unlawful interference the Respon-
dent had broken the union drive Whether or not there had
been violations of the statute was not for him to decide, but
the repeated assertions from him served the witness' pur-
poses. By shifting to the school all responsibility for what
he had done, Grogan was exculpating himself in the eyes of
the Teamsters He was unconvincing.
As in the case of who it really was that had invited the
breakfast meeting with the university president, here the
question becomes who was it that made the decision to
"pull" the petition, meaning the Teamsters representation
election petition filed with the Board? If what happened on
April 26 through 30 was all instigated by the employer, a
certain picture of coercive conduct appears. If instead it
was Grogan himself, and his coterie of intimates, who went
723
to management for assistance to kill off the Union, a total-
ly different view emerges And this involves the most im-
portant allegation of the complaint, because the question
touches directly upon the Gissel rule of law, the very heart
of the case.
The critical conversations took place between Grogan,
on one side, and Green and Bonnert on the other. Here it
is best io consider the managers' versions, because it is
theirs that must be believed. Bonnert testified that on April
26 Grogan told him it looks like the election is swinging
towards R P I and the men want to give R.P.I. another
chance " Bonnert said he was glad to hear this. Grogan
then also told Donnert-this, still according to the supervi-
sor-he was upset, he was unwell, had an upset stomach,
could not sleep, there was too much responsibility. Green
testified that Grogan talked to him on the parking lot in
the afternoon on the 27th, when people were leaving after
still another talk by management to further its campaign at
convincing the employees to go along without a union. He
quoted Grogan as saying he thought they were going to
lose the election: "something to the effect that, he thought
he-he thought this whole union matter was-they were
going to lose. He said that `the Teamsters aren't the union
for us anyway.' He mentioned that 'it was a big mistake
ever going to the Teamsters,' and he said he wished that he
had never gotten involved in the matter. He said that, he
was thinking about getting out . . . his survey showed that
they were going to lose the election and it was dust a big
mess " Green denied ever having asked Grogan to "pull
the petition."
Grogan testified on successive days about these talks. He
said he had for some time become convinced the employ-
ees would not vote for the Union. He recalled saying this to
Bonnert and to Small, the number 2 man in the union
campaign. And then he bagan to change his testimony as
he went along. "Q. Who was the one other person, after
April 22, who you said it to? [That the swing to R.P 1.1 A I
believe it was Mr. Green, outside the Physical Plant Ga-
rage, it was the end of the week, the Friday... ... The next
day, returning to the stand, he twice denied flatly having
said thai to Green. His version of the Green talk is other-
wise very revealing He said Green approached him to ask
why he was so antagonistic towards Bonnert, and that he
answered it was because Bonnert had used the advisory
committee as a tool against the Union Grogan continued
that at this point he volunteered he was getting tired, hav-
ing trouble sleeping, his stomach bothered him, etc., and
that in response to this Green suggested "why don't you
pull the petition?" He answered he could not because the
employees would not follow him again some other time.
Then came the following- "the men have got a raise com-
ing probably on July 1st and if the petition isn't pulled,
they probably won't get it. [sic]" But this was Grogan, in
his own words, telling Green the petition had to be
"pulled" in a hurry! A unioneer asked by the employer to
stop the union movement does not tell the boss to hurry
up. The next morning Grogan talked to Small He asked
what did Small think about pulling the petition, and when
Small asked would the July 1 raises "go through," Grogan
answered that is what he understood, and "they're going to
pick up another 25 per cent of the hospitalization." This
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was Grogan asking Small to join in the petition "pulling."
Another foreman, Rude, passed by and Grogan told him,
"Oh, we're just talking about-discussing pulling the peti-
tion." With this Small suggested the two of them talk to
Ramoth They telephoned Ramoth at home and, still ac-
cording to Grogan, he told Ramoth "that we wanted to
talk to him about the petition and the school' s intentions."
They invited Ramoth to have lunch with them. Grogan,
Small, and a third man named Suprenant then called for
Ramoth and the four went somewhere to dine.
As to the talk while the group was together, Grogan's
testimony is- "I told him we were discussing pulling the
petition . . . I asked him if the school was sincere, no retal-
iation or anything. . . . What about the Blue Cross-Blue
Shield: I says, `There's a good chance they'll pick up an-
other 25 percent.' He says, `You know that too' He says,
`That's almost a certainty.' And I said, `The raises will go
through on July 19' He said, `Yes . . " Ramroth was
enthusiastic about the pulling of the petition and agreed
with virtually everything Grogan said he expected would
happen. Still from Grogan's testimony: "Well, we Just can't
pull the petition. I said, `I gotta do something. I've got to
write a speech or something.' He said, `Well, if you need
any help on it, let me know. I'll help you out on it.' I said,
`Also, the men will probably have to be-we'll have to get
the men together.' He said, `No problem I'll take care of
that. Just let me know.' "
Grogan had another social visit with top brass. On Fri-
day evening, the day of his talk with Green in the parking
lot, Grogan received a telephone call at home from the vice
president. Green invited him and his wife to dinner at a
restaurant the next night. On April 28 the two men and
their wives spent about 2 hours together at dinner, with
Green the host. Here Grogan's testimony is that he told
Green "Dick Small and I got together and we were going
to pull the petition," that he had heard "the July 1 raises
will go through," and "the Blue Cross-Blue Shield with R
P.I . . . probably would pick up another 25 percent .. .
And as he had told Ramroth earlier that day, Grogan also
told Green in the evening: "Of course, I'm going to have to
write a little speech or something. We just can't do this
quick like, we've got to write a little speech or something."
Grogan also testified that he then spoke of possible
"hard feelings" because a number of employees had paid 9
or 20 dollars to the Teamsters for membership or initiation
fees, and that Green's comment was there was nothing the
school could do about that, but that some alumni or trustee
might put a $20 bill in a man's pocket on the pretense it
had been found in the street Mrs Mary Grogan corrobo-
rated her husband's testimony on all these details; her testi-
mony includes the following. "One thing that Bill brought
up is if they pulled the petition, this would more or less
lead the way for the July 1st raises to go through which
could be held up because of Union activities."
Green testified he did say that night he was happy Gro-
gan now agreed no third party was necessary at the school,
but he denied there was any mention at all about raises, or
insurance premium payments, or money paid by employ-
ees to the Teamsters, or comment by him in any way about
reimbursing the employees, directly or deviously
I think it clear on this total record, including all that is
set out above , plus countless other phrases out of the wit-
nesses' mouths too minor and cumulative to warrant repe-
tition here , that the actual move towards "pulling" the rep-
resentation petition was started by the employees. What
caused them to change their minds is, of course, psycholog-
ically, something else again . No doubt all the perfectly law-
ful arguments against unionization voiced by management
representatives had a certain effect upon the minds of the
workmen : expressions of opinion always do. The record
also proves, I believe , that Grogan, whatever his reasons,
tried to get something for the employees out of the employ-
er in return for pulling the petition . He admitted he was
going to be embarassed in the eyes of his associates by his
reversal of position ; if he could assure them of some com-
fort come what may, his standing in their esteem would be
more tenable . His testimony is that , when telling Ramroth
and Green of the decision to stop the election , he asked
them both whether the July 1 merit raises would be given
as usual, and whether the school really intended to raise its
contribution towards the employee ' s Blue Cross-Blue
Shield payments . Ramroth testified he answered he did not
know to both questions ; Green denied either question was
asked . I believe Grogan on this. In some respects Green's
testimony left much to be desired. Twice asked why he had
invited the Grogans to dinner , he each time answered be-
cause the man was despondent and because he wished to
be liked by Grogan . When, in the heat of a campaign to
dissuade its employees from going union , and with knowl-
edge of a beginning success in its program , the vice presi-
dent of a university invites an ordinary groundsman to a
social evening out with the wives-who never before had
met-the reason must be something other than to establish
mutual affection . In his brief, counsel for the Respondent
says Green was "politicking" that night . I find both Ram-
roth and Green did say the July 1st raise would be given.
They had to; had they said no it would have been an unfair
labor practice . No purpose would be served by an attempt
to reconcile the belabored emphasis placed upon this es-
tablished July merit raise system in the General Counsel's
brief . On page 10, Petrie , a very low supervisor, tells some
employees the union movement "screwed" the raises that
would otherwise surely have come . This is called an unfair
labor practice and the effective coercion which forced all
the employees to abandon their statutory rights, their spir-
its intimidated beyond repair . On page 18 , the vice presi-
dent and a higher supervisor tell the two union ringleaders
the raise will be given , as it always was. This is called an
unfair labor practice and the effective inducement , illegal
of course, towards mass defection from the Teamsters.
Such illogical reasoning only illustrates the straining that
pervades the entire case in support of the complaint.
I do find Green said the insurance premium benefit in-
crease could come about , " it was a possibility."
When an employer invites employees to bargain with
him directly instead of through a union, at what point is he
also inferentially giving them assurance that benefits would
flow to them from his kind of bargaining? If he makes an
explicit , definite promise of benefits, there is no question
he exceeds the limits of expressions of opinion and violates
the statutory proscription against coercion. If he makes no
definite promise, leaves things open to the discussion which
RENNSELAER POLYTECHNIC INSTITUTE
he suggests and which are supposed to follow. is he by
implication promising improved employment conditions
nevertheless? The question is a very close one here. I think
Green and Ramroth were in a sense bargaining with Gro-
gan, suggesting, if not overtly holding out, a plum then and
there to sweeten his anguish at leading the employees out
of the Teamsters. As the court stated in Hendrix Manufac-
turing Company, Inc., v. N.L.R.B., 321 F.2d 100 (C.A. 5,
1963):
When . . . an employer sets out to campaign
against a union, one of the risks is that . . . [his] repre-
sentatives . . . will overstep the mark. Since it is the
policy of the Act to protect employees in a free choice
of a bargaining representative, the law looks to what
the listener-employees reasonably could have infer-
red from what was said and done by one authorized to
engage in the antiunion preelection campaign.
I find that both Ramroth and Green violated Section
8(a)(1) of the Act by conveying the thought, however ob-
liquely, to Grogan and his friends at the luncheon Saturday
noon, and to Grogan at the evening dinner, that the em-
ployees could look forward to material, practical benefits
after abandoning the Union. They were in a sense bargain-
ing with the employees.
I do not believe Vice President Green said anything
about reimbursing the employees for monies advanced to
the Teamsters. It would have been completely out of char-
acter, considering the nature of the campaign carried on by
the school officials. They were careful always to make no
promises, and where they did step beyond the limits of
legality, it was only to a very mild extent. Whatever else
may be true of Green's conduct in weaning the employees
back to the school's view, I credit his denial in this matter.
5. Material assistance
After his dinner visit with Green, on Sunday, April 29,
Grogan spent hours at home writing a speech he planned
to deliver to assembled employees; he is inexperienced as a
draftsman and was having difficulty. In the evening Ram-
roth telephoned to ask how he was doing, would Grogan
read to him over the phone what he had written. Ramroth
found fault with what he heard and, according to Grogan,
asked could he come over to help; Grogan agreed. Ram-
roth testified the employee invited him; I do not credit his
denial. In Grogan's home he rewrote the speech. As to the
extent to which the final wording was his, the two men
disagreed at the hearing. It is of little moment, for the im-
portant fact is that the supervisor did make himself part of
the antiunion activity. Grogan and his wife said he rewrote
the whole thing; Ramroth belittled his contribution. He is
the academically educated one, and he volunteered to go
for the very purpose of seeing to it that the written argu-
ment was persuasive. Asked had not his purpose that night
been to make the speech more convincing upon the em-
ployees, he answered that such a thought "absolutely did
not enter my mind." The statement did not enchance his
credibility; I do not believe him.
With the speech finished, Mrs. Grogan _reminded her
husband he had to have something for the employees to
725
sign, some kind of a petition . At Grogan 's request Ramroth
wrote that too . The question then became how Grogan
could reach all the employees with his talk . Ramroth then
proceeded to call a number of supervisors from Grogan's
home, told each to have his men assembled in a nonwork
area early the next morning, with no supervisors present.
He admitted he did make these arrangements , but denied
calling the supervisors from Grogan 's house.
Again , it makes no difference where or when he took the
necessary steps to assist in the activities . He did it, with
approval of his superiors , and with effect . The next morn-
ing, always on paid time, Grogan spoke to a large group of
employees . reading his speech and explaining whey they
should forget about the Union. From the mass meeting he
went from one shop to another , again explaining his mis-
sion , and soliciting signatures . The supervisors knew he
was doing this and encouraged him. He succeeded in ob-
taining 80 signatures .2 With management 's knowledge and
assistance Grogan then made copies of the signatures list
on an office duplicating machine , and then , still with ex-
press approval of the school officials , went to the Board's,
and then to the Union's offices , with other employees in a
company car to deliver it. All this while he was on the
clock and paid as though he was working.
I find that by the activities of Ramroth in rewriting
Grogan's antiunion speech, by his conduct in writing the
antiunion petition , by the conduct of several supervisors,
high and low, in directing the employees to listen to
Grogan's talk during paid time , and by the various forms
of direct help to Grogan to obtain signatures and deliver
the petition to the appropriate offices, the Respondent vio-
lated Section 8(a)(1) of the Act.
6. Interrogation ; solicitation of grievances
If there is one thing this record makes clear, it is that
there was no inhibition , anywhere , about speaking openly
of the union campaign. If ever card solicitors felt free to
talk up the union at work and during working hours this is
the case . No one hesitated in telling their respective super-
visors how the activity was progressing , or why it was going
on. In turn the supervisors freely expressed their views. In
the ensuing general debate , of course , all sorts of questions
were asked and answered . The argument on management's
side being that direct dealing was better than third party,
or outside union representation, of necessity they said the
employees would be better off that way . There is no indica-
tion of fear in any employee, hidden talk , clandestine ef-
forts at concealment , or threats made to them . Indeed
2 The petition to which the signatures were obtained , and whose heading
had been written by Supervisor Ramroth the night before, reads as follows:
Resolution to not have Teamsters Local 294 represent Rennselaer
Polytechnic Institute employees.
We the undersigned having signed and/or indicated authorization
cards for Local 294 of the Teamsters Union to represent us in a union-
ization against Rennselaer Polytechnic Institute we now withdraw said
authorization and furthermore do not wish or desire that Local 294 of
the Teamsters Union or its agents to represent us as a bargaining agent
with Rennselaer Polytechnic Institute and hereby request and demand
that they withdraw our petition for representation of us for any further
action to organize employees of Rennselaer Polytechnic Institute.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much solicitation went on during hours with company
knowledge, and without interference. And perhaps the gen-
erally relaxed attitude so reflected throughout this record
makes more understandable the real reason why Grogan,
and his friends, turned to the Teamsters at all. They all
liked working for the University; one employee witness af-
ter another told of how friendly and intimate he has been
for years with this supervisor or that. Several men testified
the Teamster agents told them they could promise nothing
more than job security. Why should professional union of-
ficers so limit their encouragement to would-be members?
They normally promise much more than they know they
can obtain. Could it be it was the employees who told the
Teamster officials this is all they wanted, that they really
had no other complaints against the school?
There was interrogation, and there were questions put to
employees by supervisors asking what caused the union
movement, what objectives did the men seek to achieve.
The Respondent counts 91 specific instances of interroga-
tion of this kind; I make it 62, but if there really were that
many there must have been even more. Is it illegal interro-
gation, however, coercive violation of the federal statute,
for a supervisor, in a picture of this kind, to say to a man
he has seen every day for years-"how you doing, Sport?",
"how are things going?", and "how are we doing?" Much
of the talk that went on falls in this category. I doubt there
can be unfair labor practice findings based on chit-chat of
this kind. But just as the vice president's talk with Grogan
about the virtues of direct dealing carried over into a cer-
tain amount of inferential bargaining or promising, even
so, too much talk in the effort to persuade individual work-
men could easily evolve into improper probing into the
employees' desires, or even invitation to resolve individual
gripes as a practical diversion from the union movement.
This an employer may not do, notwithstanding his right to
express opinions.
I credit the testimony of Grogan that on or about March
14 his supervisor, Courtney, asked, "How many men have
you got signed up?", and when the answer was "80 per-
cent ," added his experience in earlier employment had
shown "the union didn't do them any good ... he didn't
think it would do us any good. And he said that he thought
that the Teamsters were too strong." I find a violation of
Section 8(a)(1) here. Riding home in a car pool one day,
another supervisor, Rude, asked employee Abel how he
was going to vote in the coming election, and added if
there were a union the men could not have free time off for
a doctor's appointment, things "will be a little bit more
harder on you, on your job we'll push you a little bit more
and we won't be buddy buddies." Rude admitted he talked
the Union down that day, asked the men what they
thought of paying union dues of $9 each month. I credit
Abel, and find Rude's interrogation and promise of harsh-
er conditions also violated the statutory proscription. Two
other employees were questioned by Rude; Raymond Terk
was asked "are you for the Union or are you not?," and
when he answered yes, Rude came back with: "Oh, no,
no." DeMayo said Rude asked him "How do you feel to-
wards the Union?"; he answered equivocally and Rude
came back: "Well .. . you know if the Union gets in here,
I'm not going to be able to be as nice as I used to be." I
credit Terk and DeMayo, too, and find in each instance
Rude committed unfair labor practices. There were other
instances of veiled interrogation of one kind and another,
but nothing of substance would be added to this report by
detailing them here.
Some of the incidents said to support the complaint fall
short, considering the free air of the place and the fact the
unioneers never hesitated to publicize their activities.
Standing in the toilet next to Grogan one day, Sirco, the
lowest type supervisor, said: "I don't have to ask you how
you're going to vote, do I?" If there is one thing everybody
still knew as of that date it was that Grogan was going to
vote for the Union. What Sirco should not have said, and I
believe he said, despite his denial, was: "Mr. Braun asked
me to ask you people and I've got to get back to him by
this morning because he's got to have the answer, he's got
a meeting in the Pittsburgh Building this afternoon." This
was improper and, I find, still another unfair labor prac-
tice. One other instance will suffice. After the Union filed
its charge, Grogan had to appear at its offices more than
once to give statements. He did leave during working
hours; indeed a number of other employees found them-
selves in the position of having to go to the union office. In
the general activity there came a time early in May when
some company supervisors asked Grogan where he was
going, what caused him to leave the campus. He said it was
to go to the union. The complaint calls this interrogation
unlawful. The truth of the matter is the question of whether
or not to pay people who took time off for things like this
arose, to say nothing of proper needs by management to
know who was on duty and who was not. In fact, there is
indication the company did not dock Grogan for his pay at
least once that he had to report to the Union. I can make
no unfair labor practice findings based on this type of in-
terrogation.
Conclusions
The university officers violated Section 8(a)(1) and (2) of
the Act in their successful campaign to persuade the em-
ployees to forget about the Union. Does it follow these
employees could not be relied upon to express a free choice
in the matter if an election were to be held tomorrow, or
after a 60-day period of posting of the usual "We Will Not
repeat the offense" notices? A lady truckdriver on the wit-
ness stand was asked did she feel she could cast an untram-
meled ballot. The General Counsel objected to the ques-
tion . He was right; it is for the Board, in its expertise, to
pass judgment upon the necessary effect of unfair labor
practices that are committed. As already stated, I am satis-
fied in this case that there can be a free election, and there-
fore there is no warrant for the Board to order bargaining
without giving the employees the right to decide for them-
selves.
If this long record were combed with a fine brush, no
doubt 6 or 12 more instances could be found where the
talking and the questioning that went on might be called
additional violations of the statute. But none would fall in
that category of unfair labor practices that could be char-
acterized as major, egregious, or flagrant. When the cases
speak of outrageous misconduct such as to preclude the
RENNSELAER POLYTECHNIC INSTITUTE
holding of a fair election, they speak of outright discharge,
or direct threat of discharge. Compare, Chairman Miller's
dissent in General Stencils, Inc., 195 NLRB 1109, reversed
472 F.2d 170 (C.A. 2, 1972). There was no discharge here;
there was no threat of discharge. No quid pro quo benefit
was given; no promises of benefits were voiced. The Non-
Exempt Committee met on March 1 and April 19, after the
union movement started, exactly as it had been doing be-
fore. There was bargaining and it was in violation of Sec-
tion 8(a)(2), but it was the minor type of unfair labor prac-
tice. Nothing was recommended by the total committee to
higher authorities that had not already been discussed and
recommended before. The attempt to make the activity ap-
pear more severe on the ground the documents were not in
a "different form," or as a "booklet" instead of "minutes,"
adds nothing of substance. President Grosh was present a
few minutes on April 19. He had also been present at the
January meeting. I credit his testimony, corroborated by
Bonnert and Cohen, one of the employee members, that he
said unequivocally there could be no definite promises of
action of any kind because of the pending question con-
cerning representation. And, finally, no action has been
taken by the Respondent in the slightest sense changing
any condition of employment. This is simply not a Gissel-
type case.
III. THE REMEDY
Having found that the Respondent violated the statute
in a number of respects , it must be ordered to take appro-
priate remedial action. The Respondent will be ordered to
cease and desist from unlawfully interrogating its employ-
ees, bargaining with them individually or in small groups
for the purpose of interfering with their freedom to select a
union of their choice , assisting employees in their efforts to
persuade other employees to abandon a self -organizational
campaign , or bargaining with its employees in total by use
of an employer formed , assisted and dominated labor orga-
nization . The Respondent must also disestablish the Non-
Exempt Personnel Advisory Committee.
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 the operations of Re-
spondent described in section 1, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By forming, assisting, and dominating the Non-Ex-
empt Personnel Advisory Committee, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(2) of the Act.
2. By interrogating employees concerning their union
activities and sentiments, by indicating to employees that
their working conditions would be less pleasant if they
727
chose to be represented by a union, by writing an anti-
union speech to be used by employees, by preparing an
antiunion petition, by assisting employees to obtain signa-
tures to such a petition, by permitting employees to
circulate, complete, and deliver an antiunion petition to the
Union during paid company time, and by bargaining di-
rectly with individual employees and promising them im-
provements in working conditions for the purpose of dis-
couraging them from self-organizational activities, the
Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER3
The Respondent, Rennselaer Polytechnic Institute,
Troy, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation or ad-
ministration of the Non-Exempt Personnel Advisory Com-
mittee or any other labor organization of its employees, or
giving support to such labor organization.
(b) Unlawfully interrogating its employees concerning
their union activities, membership, sympathies, or desires.
(c) Indicating to its employees that their working condi-
tions would be less pleasant if they chose to be represented
by a labor oranization.
(d) Writing antiunion speeches for its employees, pre-
paring antiunion petitions for its employees, assisting em-
ployees to obtain signatures to an antiunion petition, or
permitting employees to circulate, complete, and deliver
antiunion petitions to other offices during paid company
time.
(e) Bargaining directly with individual employees and
promising them improvements in working conditions for
the purpose of discouraging them from adherence to Local
294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other la-
bor organization.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.:
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102
.48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Completely disestablish the Non-Exempt Personnel
Advisory Committee as the representative of any of its em-
ployees for the purpose of dealing with it with respect to
wages or any other conditions of employment.
(b) Post at its school premises in Troy, New York, cop-
ies of the notices attached hereto and marked "Appen-
dix." 4 Copies of said notices on forms provided by the
4 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
Regional Director of Region 3, after being duly signed by
its representatives, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all placed where notices to employees are custom-
arily posted. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of the receipt of this
decision what steps the Respondent has taken to comply
herewith.