Rospatch Corp.

National Labor Relations Board - Board Decisions

Oct 15, 1971

193 N.L.R.B. 772 (N.L.R.B. 1971)

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rospatch Corporation and General Teamsters Union
Local No. 406, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America. Cases 7-CA-8348 and 7-RC-10178
October 15, 1971
DECISION, ORDER AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On June 30, 1971, Trial Examiner Anne F. Schlez-
inger issued her Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the aforesaid conduct interfered
with the Board election of November 24, 1970, and
recommended that the election be set aside and that a
new election be held. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief. The Trial Examiner further found
that three of the six employees whose ballots had been
challenged were not eligible to vote and that therefore
the challenges were insufficient in number to affect
the results of the election. No exceptions were filed
with respect to the Trial Examiner's report on
challenged ballots.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
The Trial Examiner found that Respondent's
President Brush, in speeches given to groups of
employees, told the employees that selection of the
Union as their bargaining representative, thus requir-
ing the Respondent to negotiate with the Union,
would involve considerable legal expenses for Res-
pondent that would come out of profits, and hence
would reduce the Respondent's profit-sharing
contributions.' We do not agree with the Trial
Examiner that Respondent thereby unlawfully threat-
ened to reduce its contributions to the profit-sharing
plan in the event they voted for the Union. In our
opinion, Brush's speech merely predicted a possible
economic consequence, and was not a threat of
reprisal, if Respondent's business costs were
increased.2 Accordingly, we shall order that the
complaint be dismissed.
The above-mentioned remarks to employees are the
sole grounds upon which the Trial Examiner recom-
mended sustaining the Union's objections to the
election in Case 7-RC-10178 and directing a second
election. For the reasons set out above, we shall
overrule the objections, and as the Union has failed to
receive a majority of the valid votes cast, we shall
certify the results of the election.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the Union's objections
to the election conducted in Case 7-RC-10178 on
November 24, 1970, be, and they hereby are,
overruled.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes cast in the election conducted in Case
7-RC-10178 have not been cast for General Team-
sters Union Local No. 406, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and that said labor organization
is not the exclusive bargaining representative of the
employees in the unit found appropriate within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
i The Respondent has a profit-sharing plan to which it has paid 10
percent of net pretax profits annually for several years
2 See Wilmington Heating Service, Inc, 173 NLRB 68
TRIAL EXAMINER'S DECISION
and
REPORT ON OBJECTIONS TO ELECTION
AND CHALLENGED BALLOTS
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER , Trial Examiner: Upon a charge
filed on December 1, 1970, by General Teamsters Union
Local No. 406, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
referred to herein as the Charging Party or the Union, the
General Counsel , by the Regional Director for Region 7, on
February 11, 1971, issued a document entitled:
193 NLRB No. 122
ROSPATCH CORPORATION 773
1. COMPLAINT
II. REPORT ON OBJECTIONS AND CHALLENGED
BALLOTS
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
III. ORDER CONSOLIDATING UNFAIR LABOR PRACTICE,
OBJECTIONS AND CHALLENGED BALLOTS CASES FOR
HEARING
IV. NOTICE OF CONSOLIDATED HEARING
This document (a) alleges that Rospatch Corporation,
referred to herein as the Respondent or the Employer,
interfered with, restrained, and coerced its employees in the
exercise of their Section 7 rights, in violation of Section
8(a)(1) of the Act; (b) reports that the Union's objections to
the election parallel the allegations of the complaint, that
the challenged ballots are determinative of the election
results, and that the objections and challenged ballots raise
substantial and material issues of fact, including credibility
issues, which can best be resolved by a hearing; and (c)
orders that the unfair labor practice and the objections and
challenged ballots cases be consolidated for hearing, ruling,
and decision by a Trial Examiner, that thereafter Case
7-RC-10178 be transferred to and continued before the
Board, and that the provisions of Sections 102.46 and
102.69(e) of the Board's Rules and Regulations shall govern
as to the filing of exceptions.
In its answer, duly filed, the Respondent admits certain
allegations of the complaint but denies that it has engaged
in any unfair labor practice and denies that there is any
basis to support the objections to the conduct of the
election
Pursuant to notice, a hearing in the consolidated
proceeding was held before the Trial Examiner at Grand
Rapids, Michigan, on March 30, 1971. All parties appeared
at the hearing and were afforded full opportunity to
present evidence and to examine and cross-examine
witnesses . At the close of the hearing, the Union presented
oral argument. Subsequent to the hearing, briefs were
received from the Respondent on May 3 and the General
Counsel on May 4, which have been fully considered.
Upon the entire record in these cases, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation duly organized under the
laws of the State of Delaware, maintains its principal office
and place of business at 609 Myrtle, N W., Grand Rapids,
Michigan, where it is, and has been at all times material
herein, engaged in the manufacture, sale, and distribution
of cloth labels and related products. The Respondent, in the
course and conduct of its operations at Grand Rapids, the
only facility involved in this proceeding, purchases goods
and materials valued at more than $50,000 directly from
points located outside the State of Michigan and ships
products valued at more than $50,000 directly to points
located outside the State of Michigan. The complaint
alleges, the Respondent's answer admits, and I find that the
I find, as the complaint alleges and the Respondent's
answer admits, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent, by Brush, its
president, (a) on or about November 17, 1970, threatened
its employees with reduced contributions on their behalf to
the Respondent's profit-sharing plan as a result of the
Union's organizational activities, and/or in the event the
Union was selected by the employees as their collective-
bargaining representative; (b) on or about November 20
advised its employees that the selection of the Union as
their bargaining agent would operate as an impediment to
the securing of increased employee benefits; and (c) on or
about November 20 advised its employees that the selection
of the Union as their bargaining representative would not
be of beneficial assistance to the employees, and that the
employees' efforts in seeking the assistance of or represent-
ation by the Union were acts of futility in that they would
gain nothing from such assistance and representation. The
complaint alleges that the Respondent by the aforesaid
conduct interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act. The Respondent maintains that the evidence fails to
show that Brush made the statements alleged in the
complaint, or that the statements Brush did make were
violative of the Act.
It was stipulated at the hearing that the Respondent
maintains a profit-sharing plan covering employees in the
unit here involved. The Respondent has paid 10 percent of
net pretax profits into this plan annually for several years.
The employees, who make no contributions to this plan, are
given booklets in which the Respondent annually records
their accumulated shares in the plan. It was also stipulated
that the Respondent as of November 24, 1970, had 18 unit
employees who were 60 years of age or older. The
mandatory retirement age for the Respondent's employees
is 65.
During the summer of 1970, the Respondent's operations
were under study by an outside organization with a view to
increasing efficiency. At this time some employees were
required to operate more machines than they previously
did, which created concern among the employees that
changes resulting from the efficiency study might cause
layoffs.
Prior to the election, which was held on Tuesday,
November 24, the Respondent held a number of meetings
with groups of employees, divided by department and shift,
in a conference room in the plant. These meetings began in
late October. The last three were held on November 6, 17,
and 20. On each of these days the Respondent conducted a
series of 5 to 7 meetings, with the same subjects covered at
each meeting in a series. The same management personnel
generally attended all the meetings in a series, and
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors attended the meetings of the employees they
supervised At the series of meetings on November 17, the
Respondent's representatives, using flip charts, compared
various employment benefits and conditions at its plant
with those at comparable plants in the area which had been
organized by unions This series of meetings was referred to
by the witnesses as the flip-chart meetings. As set forth
above, the complaint alleges that Brush, president of the
Respondent, made unlawful remarks at the November 17
and 20 series of meetings. As to these allegations the
General Counsel presented testimony of three witnesses.'
Beverly McGraw, a utility operator, has been employed
by the Respondent for 6 years and works on the first shift
from 7 a in. to 3 p m.2 She testified that she attended the
November 20 meeting held in the early afternoon, that 25 to
30 employees were present, and that, in addition to Brush,
the Respondent was represented at this meeting by Chaille,
the chairman of the board of directors, Joon, the plant
manager, and Weih, the area supervisor. McGraw also
testified that Brush stated at this meeting. ". . . that they
had learned from-I don't recall if he said mistakes or how
it went, but they had learned many things from this
campaign, and mostly through lack of communication .. .
we did not need a union to tell us how to run our affairs. We
could work our problems out among ourselves . . . we have
made many changes in the past few months, and the union
could not change that." She also testified that, "I believe
Mr. Brush is the one who made it, and he said any money
spent on hiring attorneys to fight the union or negotiate
with the union would cost a lot of money and would come
out of the profits that would go into our plan." Upon cross-
examination by the Respondent, she testified further with
regard to this statement by Brush: "As much as I can recall
them, I remember Mr. Brush saying that they had to hire
attorneys to fight the union that it would be costly and
come out of the profits which would go into our
retirement." She admitted that she could not recall the
exact words used by Brush.
McGraw also testified that she attended one of the flip-
chart meetings on the morning of November 17 at which
Chesnover, the personnel director, compared the employ-
ment benefits, including pension plans, at the Respondent's
plant with those at area plants having union contracts. She
did not recall Brush being present at this meeting.
Florence Ewing, who has been employed by the
Respondent for 12 years as a machine operator in the cut-
and-fold department, works on the third shift from I I p.m.
to 7 a.m. She testified that she attended a meeting on
November 20 about II p.m., that about 8 or 9 employees
were present, and that the Respondent was represented at
this meeting by Brush and also by Chaille, Joon, and Drent,
the area supervisor of her department. Ewing testified that
the remarks made by Brush, who was the last of the
management representatives to speak, included the follow-
ing: "Mr. Brush said we didn't need the union, we could do
a better job ourselves . . . He said he had promised time
and time again there will be no reprisals or anybody will
suffer, anybody voting for the union, and there would be
better communications from now on, and especially
through supervision, and there is fob security at Rospatch
and he said that out of the one hundred twenty-seven that
will vote Tuesday, sixty-three had been here 10 years, and
some a lot more . . . He said there would be no layoffs at
this plant . . . that there would be job security at Rospatch
... He did say they were buying or purchasing next week
... land on which they were building a new plant, and that
to him was security for the people at Rospatch . . . he said
there had been tensions within the past few weeks but he
thought they would be cleared up after the election and
things would get back to normal . . . He said he hoped that
we would think the same way and vote a resounding vote
against the union."
Ewing also testified that she attended the preceding
meeting for the same group of employees at which the flip-
chart comparisons were made; that Brush was not among
the company representatives present; and that a representa-
tive who was present-she did not recall which one-stated
that "Rospatch had the best retirement of any of those that
was on the whole chart . . . what would be paid the lawyers
would come out of our pay and it would affect our
retirement fund." On cross-examination by the Respon-
dent, she agreed that, as stated in a question, "the remarks
were along the lines this was an expensive situation, the
problem of organizing and negotiating."
Eugene Kwast, who has been employed by the Respon-
dent as a maintenance electrician for 5 years, works on the
7:30 a.m. to 4 p.m. shift. He testified that he attended a
meeting on November 20 at which about 25 employees
were present; that the Respondent's representatives at this
meeting, in addition to Brush, were Chaille, Joon,
Chesnover, and Drent; and that Brush at this meeting said
something to the effect that there would be no retaliation
based on how anyone voted, and also that "he did not see
or know of any one thing the union could do that would
help us . . . the election would be by a secret ballot and we
were free to vote as we saw fit but obviously he would like
to see us cast a strong no vote at the election." Kwast
testified further that Brush said, at this and at the first
meeting, that "the cost of lawyers to negotiate with the
union would come out of the money that would normally
go into the retirement fund." On cross-examination, when
the Respondent questioned him about the exact words
Brush used in these last remarks, Kwast maintained that
"He said there would be quite a bit of money spent for
lawyers to negotiate . . . He said it would be money that
would come out of profits that could go into the retirement
fund."
Kwast also testified that he attended a meeting, held in
the morning about a week or two prior to the November 20
meeting, at which Chesnover explained the flip-charts, and
that the Respondent's representatives at this meeting
included Brush, as well as Joon, Chesnover, Krause, and
Sweat, the maintenance supervisor. Kwast also testified as
to this meeting that the comparison between the Respon-
dent's pension plan and those of companies represented by
the Union was commented on by Chesnover, and that
The General Counsel elicited some testimony about conduct of objected thereto , that these matters were presented to show the context of
individuals other than Brush , and of Brush on dates other than those the statements that are in issue.
alleged in the complaint He explained , when counsel for the Respondent 2 Some departments operate on a 2-shift and others on a 3-shift basis.
ROSPATCH CORPORATION 775
"later Mr. Brush explained it, expanded on it." He also
testified that he thought it was Brush who pointed out that
the qualifications for the Union's pension plan would be 20
years in the industry and 5 years under the union contract;
that Brush said the Respondent's plan "was a good plan,
but if the union would be voted in it is possible the union
would gain control of the plan because of certain
circumstances and some of the older employees would
never be eligible for a pension." According to Kwast, Brush
explained as an example of such "circumstances" that "if a
specific person was sixty-two and not five years under the
union contract they would not be eligible."
Brush testified, as a witness for the Respondent, that (a)
he spoke at some of the meetings held before November 6
and at all the meetings in the series held on November 6, (b)
that he attended only the first in the series of meetings on
November 17 and as an observer only, and (c) that he
"made a presentation" at each of the final series of
meetings held on November 20.
(a) Brush was asked by counsel for the Respondent if he
recalled "any discussions . . any place along the way
about the expense of organizing or negotiating contracts."
Brush replied: "At our November 6th meeting I made the
statement that inasmuch as some employees desired
outsiders-namely, a union-to represent their interests, it
would be necessary for the corporation to hire the services
of competent labor legal authority or authorities to
represent the corporation, and consequently this would
involve considerable expense to the company for its outside
help. And I made the statement at that time that inevitably
if a union were to represent the employees they also would
incur extra expense and costs of dues." Asked if, with
respect to the profit-sharing discussion, there was any
connection between his remarks about the expense to the
company and reducing its contributions to the profit-
sharing plan, Brush replied: "No. None whatsoever. The
only point that could be construed in that light was that the
additional costs of attorneys on our part would and could
have an effect on corporate profits." Asked if there was at
any time after the November 6 meetings any discussion
about reducing the employees' share in the profit-sharing
plan, Brush replied, "No. Not at any time on my part."
(b) With respect to the flip-chart meetings on November
17, Brush testified that he attended only the first one in the
series because he wanted to hear Chesnover "present the
company programs on hospitalization, fringe benefits and
so forth"; and that he attended this meeting only as an
observer, did not address the meeting, did not converse
with any employees sitting near him at this meeting, and
did not talk to any employees at any time on November 17
regarding the profit-sharing plan. Chesnover also testified,
as a witness for the Respondent, that Brush attended only
the first in the series of meetings on November 17 and as an
observer only.
With regard to the November 17 meeting that Brush
attended, he testified he recalled that, after Chesnover's
flip-chart presentation, an employee asked, "If Rospatch
were to have a union what effect would it have on the funds
in our profit-sharing program"; that Chesnover's answer
was that "it would have no effect on the funds that are
presently in the profit-sharing program"; and that "I don't
recall at that meeting that anything was stated about the
future ." Brush testified further that Chesnover , in compar-
ing the Respondent 's program with those at union-
organized plants, made reference to the qualifications for
the union pension plan but, Brush testified , he did not recall
what Chesnover said as to the qualifications. Brush
admitted that as part of its presentation at this meeting, the
Respondent "developed what some of the pension pro-
grams were with other companies similar to ours in the
Grand Rapids area that had unions . I believe there was a
reference to at least one company that was represented by
the Teamsters , and one company that was represented by
the UAW." Asked by the General Counsel whether
Chesnover compared the Union 's pension plan with that of
the Respondent , Brush replied , "I believe there were
comparisons made." The following colloquy then took
place:
Q.
A.
Q.
plan?
What did he say about the Rospatch plan?
When we compared the wide area-
Do you recall what he said about the Rospatch
A. He gave the benefits-our entire fringe benefits.
Hospitalization-
Q. I'm not asking about hospitalization or vacations
or anything like that. I'm asking about the Rospatch
profit-sharing plan. What did he explain about that?
A. He indicated the benefits that had accrued.
Q. What did he say? Do you recall?
A. I can tell you what the benefits are. How he may
have stated them, that I can't say.
THE WITNESS: Was I paying much attention?
Q. (By Mr. Ciaramitaro) Yes, sir.
A. Yes, I paid very much attention, without any
question whatsoever. But to recall the matter many
months later, as to exactly how one of our executives
phrased it as to the aspects of our profit-sharing
program, that would be very difficult for me to do.
Chesnover testified, on cross-examination by the General
Counsel, that in his November 17 flip-chart presentations
he did "compare the Teamster pension plan on that chart to
Rospatch retirement or profit-sharing," and that he did
state as to "the qualifications for a Teamster pension" that
"Twenty years were required in the Teamster industry to
qualify, five years under a union contract, plus one hundred
twenty weeks of contributions on the part of the employee."
Chesnover also indicated to the employees, as he testified,
that the effect of the Union's qualifications was "that some
of our employees as a result of their age could not qualify
for the . . . Teamster pension plan." As noted above,
retirement is mandatory for the Respondent's employees at
the age of 65.
(c) At the November 20 series of meetings, the final
meetings preceding the election, Brush, as he testified,
"made a presentation" at each meeting. Brush also testified
that it was company procedure, prior to the meetings, for
those representatives who were to make presentations to
prepare written outlines, which these representatives would
"finalize" at meetings with counsel for the Respondent.
Brush testified that he did not read his outline but used it as
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a guide and followed it closely as he addressed the
November 20 meetings
One of the items on this outline states, "No layoffs
because of change in operations." Brush testified, on cross-
examination by the General Counsel, that he so assured the
employees at the meetings . As he testified further in this
regard:
I reiterated to the employees that during the summer
months we had had the help of outside industrial
engineers working towards the establishment of new
methods and more efficient standards and so forth, and
we had made it clear to the employees prior to this firm
coming to Grand Rapids and during the period they
were here that if these efficiencies that were effected by
their planning helped because of these we would not lay
off any personnel whatsoever. That's the reason that
layoffs appear here as a point, because there was great
concern on the part of the employees as tojob security
We wanted them to feel they had every reason to
believe they had continued security even though we
were studying our operations.
Although assurances as to job security were made to the
employees prior to and during the study, the employees
continued, according to Brush's testimony, to be concerned
about layoffs, and one of his aims in the preelection
meetings was to address himself to the employees'
concerns.
Brush also testified that at the November 20 meetings, "I
said in the last several weeks there had been unrest and
tension developed, and obviously extemporaneously said
this is perhaps a situation that would occur during a period
when there are problems and labor unrest. And I asked
them to share my feelings that a strong 'no' vote would be
the best way to put an end to tension and unrest We
wanted to develop team work in the corporation." Finally,
Brush testified that in the talks he made at the November 20
meetings, "I do not recall making reference to the union. In
other talks I have "
Concluding Findings as to Unfair Labor Practices
I credit the testimony of McGraw, who impressed me as a
completely candid and reliable witness, that Brush stated,
at the meeting she attended on November 20, that money
spent by the Respondent to fight the Union or to negotiate
with the Union would come out of company profits that
would otherwise go into the retirement plan.3 I find that
Kwast, who apparently attended the November 17 meeting
at which Brush was present, mistakenly attributed to Brush
comments made at this meeting by Chesnover. I am
convinced nevertheless that Kwast testified honestly and to
the best of his recollection and credit his testimony that
Brush stated, at the November 20 meeting as well as at an
earlier meeting Kwast attended, that "there would be quite
a bit of money spent for lawyers to negotiate . . . that
would come out of profits that could go into the retirement
fund." I find also that Ewing testified credibly that a
management representative stated at one of the meetings
that "organizational and negotiating problems are expen-
save matters" and that "what would be paid the lawyers
would come out of our pay and it would affect our
retirement fund," although she could not recall who said
this and believed it was said at a meeting at which Brush
was not present.
I do not credit Brush's testimony that he made no
remarks "whatsoever" indicating that the expense of
negotiating with a union might cause a reduction in the
Respondent's contributions to the profit-sharing plan. I
found him an evasive and unconvincing witness. Moreover,
although the written outline used by Brush does not include
such remarks, Brush testified that he followed but did not
read the outline, and that he made some comments at these
meetings "obviously extemporaneously."
The Respondent argues in its brief that Brush did not
assert that the Respondent would reduce its contributions
to the profit-sharing plan in retaliation for a prounion vote,
that Brush did not indicate that the Respondent would
reduce the percentage of profits it contributed to the profit-
sharing plan, and that what Brush said about the legal
expense of negotiations causing a reduction in profits was a
statement of economic fact. It is apparent, however, from
the entire record, and I find, that the remarks made by
Brush indicated to the employees that the designation of
the Union as their collective-bargaining representative
would result in a reduction in the contributions to the
Respondent's profit-sharing plan. That there was employee
concern as to the effect that selection of a union would have
on the profit-sharing plan was known to Brush. This is
shown by his testimony that an employee asked a question
about the matter at the November 17 meeting he attended,
and that Chesnover stated it would have no effect on
present funds but said nothing about future effects. An
employee question was an unusual occurrence as the
employees at these meetings generally made no comments
and asked no questions. Knowledge of the employees'
particular concern about this matter is apparent also from
the remarks made at the meetings by the Respondent's
representatives about the seniority of many unit employees,
their accumulated stake in the profit-sharing plan, and the
ineligibility of the older employees to qualify for the union-
negotiated pension plans. Brush, however, in contrast with
his frequent reassurances aboutjob security, did not seek to
relieve the employees' concern in this regard by assurances
that the Respondent would continue its past practice
regarding contributions to the profit-sharing plan.
Accordingly, on the basis of all the relevant evidence, I
find that the president of the Respondent warned the
employees that the designation of the Union as their
collective-bargaining representative, requiring the Respon-
dent to negotiate with the Union, would involve consider-
able legal expense for the Respondent that would come out
of profits and hence would reduce the Respondent's profit-
sharing contributions. These remarks, made at meetings of
all the employees assembled by departments and shifts on
the eve of the election, concluded with a plea by Brush for
"a strong `no' vote" against union representation. Brush's
remarks, moreover, were made in a context of statements
by other management representatives that many employees
3 1 find it immaterial in the circumstances of this case that the
complaint alleges that this conduct occurred on or about November 17
rather than on or about November 20 See REA Trucking Co, Inc v
NLRB,439 F2d 1065 (CA 9, 1971)
ROSPATCH CORPORATION 777
had considerable accumulated interest in the profit-sharing
plan, that a number of unit employees were approaching
the compulsory retirement age, and that these employees
would be precluded from coverage by the requirements of
the retirement or pension plans negotiated by unions with
other plants in the area. In this context, as must have been
apparent to Brush , the "likely import" 4 of his remarks was
to indicate to the employees that, in the event they
designated the Union as their collective-bargaining repre-
sentative , the Respondent's contributions to the profit-
sharing plan would be reduced and the employee shares
would consequently also be reduced I conclude and find,
in all the circumstances of this case, that Brush's remarks
constituted threats of reduced employment benefits in the
event the employees designated the Union as their
collective-bargaining representative; that such threats
relating to retirement , a matter about which many of the
employees were "particularly sensitive,"5 were made "for
the purpose of influencing the employees in their choice of
whether or not they wished to be represented by the
Union"; 6 and that by such threats, explicit or implied,7 the
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Acts
I find the other remarks attributed to Brush which are in
issue herein , including those referring tojob security and to
his hope that the Union would be defeated, not to be
violative of the Act. The assurances that layoffs would not
occur as a result of the production changes were not tied to
the outcome of the election, and I find the other remarks
are protected by Section 8(c), the free-speech proviso of the
Act.
IV THL OBJECTIONS 10 THE ELECTION
A petition for an election was filed by the Union in Case
7-RC-10178, on September 23, 1970. Pursuant to a
Stipulation for Certification upon Consent Election, an
election was conducted by the Regional Director on
November 24, 1970, in the following unit of employees at
the plant here involved, which the parties agreed was
appropriate-
All production and maintenance employees, includ-
ing leadmen and superfinishers, shipping and receiving
employees, drivers and plant clericals, but excluding
modelshop employees, engraving department employ-
ees, office clerical employees, professional employees,
technical employees, guards and supervisors as defined
in the Act.
A tally of ballots showing the following results was duly
served upon the parties:
Approximate number of eligible voters ... 135
J Wausau Steel Corp v N L R B, 377 F 2d 369
5 See NLRB v Gissel Packing Co, 395 U S 575, 617, Bancroft Mfg
Co, Inc. 189 NLRB No 90
8 Monroe, 190 NLRB No 100 See also Bendix-Westinghouse Automotive
Brake Co v N L R B, 443 F 2d 106(C A 6,197 1), finding the employer's
announcements during an organizing campaign about its newly-introduced
retirement plan violative of Section 8(a)(I), and holding that as such
conduct "tended , under the circumstances, to interfere with activity
protected by Section 7, then it will be presumed that the Company
intended the interference which was the natural consequence of its action "
Void ballots ................ 1
Votes cast for Petitioner [the Union] ... 60
Votes cast against participating labor
organization ............... 65
Valid votes counted ............ 125
Challenged ballots ............ 6
Valid votes counted plus challenged ballots. 131
On December 1, 1970, the Union filed timely objections
to conduct affecting the results of the election. Following
an investigation, the Regional Director reported that the
Union's remaining objections paralleled the Section 8(a)(1)
allegations of the complaint issued simultaneously with his
report. The objections originally filed by the Union referred
to other conduct also, but the Regional Director reported
that he approved the Union's request to withdraw all
portions of the objections which did not directly relate to
the aforementioned allegations of the complaint.9 At the
hearing the Union requested that the testimony adduced by
the General Counsel with regard to the unfair labor
practice allegations of the complaint be considered also as
evidence pertaining to the objections. This request, to
which there was no objection, was granted.
I have found above that certain remarks attributed to
Brush were not shown to constitute violations of the Act as
alleged in the complaint and find that they likewise did not
preclude the employees' freedom of choice in the election. I
have also found, however, that the Respondent, by other
remarks made by Brush, engaged in unfair labor practices
by threatening its employees with reduced contributions to
the Respondent's profit-sharing plan in the event the
employees designated the Union as their collective-bargain-
ing representative. These threats were made to all the
employees at meetings held during the critical period
between the Union's filing of the petition for an election
and the day of the election. Accordingly, I find that such
conduct by a company official during the critical period
precluded a fair election and effectively denied the
employees their statutory rights freely to express their
choice in the election. Therefore, and in light of the findings
below as to the challenged ballots, I shall recommend that
the results of the election held on November 24, 1970, be set
aside, and that a new election be held at a time to be
determined by the Regional Director.
V. THE CHALLENGED BALLOTS
As set forth above, the six challenged ballots were found
by the Regional Director to be determinative. At the
hearing the Employer asserted that it had challenged the
ballot of William Mull in error, and it withdrew this
challenge. On the basis of the entire record, I find as follows
as to the five remaining challenged ballots:
The Union challenged Helen Bladey, contending that she
7 The Dalf Corporation, d/b/a Hoffman Bros , 188 NLRB No 57
8 N L R B v Gissel Packing Co, supra, N L R B v Kolmar Laboratories,
Inc, 387 F 2d 833, Bancroft Mfg Co, Inc, supra, N L V Casino Corp
d/b/a Silver Nugget, 174 NLRB No 8, Jefferson Wire and Cable Corp, 159
NLRB 1384, Reliance Electric Co, 191 NLRB No 1
9 1 find no merit , therefore , in the contention , made by counsel for the
Union in his closing argument at the hearing , that the objections are
broader in scope than the unfair labor practice allegations of the
complaint
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be excluded as a technical employee. Bladey collects
labels from the production departments , washes them for
varying periods in one of two washing machines, makes
visual tests of the effect of the washing on the colors and
materials , then irons the labels and staples them in a book
for reference . No special education or experience is
required for this work , which is performed in Bladey's
absence by McGraw, a utility operator , or by one of the
production employees , none of whom have had any special
training for this job Bladey performs her work in a
production area, not in the laboratory. She works on an
overtime basis in the cut-and-fold department , where she
was previously employed. I find that Bladey is a production
employee eligible to vote.
The Union also challenged Myron Anderson , a superfin-
isher , on the ground that he is part of the engraving
department . The stipulated unit includes superfinishers but
excludes engraving department employees . Anderson is not
an engraver by training and performs none of the functions
of the engravers , who require considerable training for their
work and are paid at least 100 percent more than he is.
Anderson operates a superfinishing machine which polishes
rotary cylinders after the engravers have completed their
operations on the cylinders He works on the production
floor , not in but near the engraving room , which is
enclosed. He takes the cylinders when they are completed
to the cylinder storage area and spends most of his time at
his machine or walking to the storage area. I find that
Anderson is in a unit category and eligible to vote.
The Employer challenged the ballots of John Korea,
Robert Torrey, and Leslie Mull as guards . They are
classified as watchmen janitors. While they perform some
janitorial functions, their prime responsibility is to maintain
plant security in the evening hours, and most of their
working time is spent in this function. Other janitorial
personnel is employed at the plant but no other watchmen.
The men in question work on the 3 p.m. to 11 p.m. and 1 I
p.m. to 7 a.m . shifts, make hourly rounds with a Detex clock
which they are required to punch at 13 stations in the plant,
go out to check the gates and open them when the next shift
is due, and check anyone who comes to the plant entrances
after 5 o'clock when it is necessary to ring a bell to gain
entrance . They work without immediate supervision as the
maintenance department foreman , who is their supervisor,
leaves at 5 p.m. I find that these three individuals are guards
within the meaning of the Act, and that they are therefore
excluded from the unit and not eligible to vote.
I conclude, accordingly , that William Mull, Helen
Bladey, and Myron Anderson were eligible to vote. Their
ballots, however , would not be determinative of the results
of the election as the Union would not have received a
majority of the valid votes even if all three were cast in its
favor
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with its operations described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VII. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I shall
recommend that it be ordered to cease and desist therefrom
and from any like or related conduct, and that it take
certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with reduced contrib-
utions to the Respondent's profit-sharing plan in the event
they designated the Union as their collective-bargaining
representative, the Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act and has thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce 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 herein, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: io
ORDER
The Respondent, Rospatch Corporation, Grand Rapids,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with reduced contributions
to the Respondent's profit-sharing plan in the event they
designate the Union as their collective-bargaining repre-
sentative.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action designed to
effectuate the policies of the Act:
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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
ROSPATCH CORPORATION
(a) Post at its Grand Rapids, Michigan, plant copies of
the attached notice marked "Appendix." i i Copies of the
said notice, on forms provided by the Regional Director for
Region 7, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced or
covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.12
It is also ordered that the complaint be dismissed insofar
as it alleges violations of Section 8(a)(1) of the Act not
specifically found herein.
IT IS FURTHER RECOMMENDED that the Union's objections
to the election held in Case 7-RC-10178 be sustained, that
the results of the election be set aside, and that said case be
remanded to the Regional Director for Region 7 for the
purpose of conducting a new election at such time as he
deems appropriate.
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
1E In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 7, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
779
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with reduced
contributions to our profit-sharing plan in the event
they designate General Teamsters Union Local No.
406, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
other labor organization as their collective bargaining
representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed in the National Labor Relations
Act.
Dated By
ROSPATCH CORPORATION
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.