Sinclair & Rush, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1970

185 N.L.R.B. 25 (N.L.R.B. 1970)

SINCLAIR & RUSH, INC
Sinclair & Rush , Inc. and Teamsters , Local Union
No. 688 , affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Cases 14-CA-5195 and 14-
RC-6179
August 21, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING , MCCULLOCH, AND JENKINS
On April 22, 1970, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled case,
finding that the Respondent had engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and rec-
ommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel, Charging Party, and Respondent
filed exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, 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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, with the following modifications:
(1) During a conversation with leadman Springmey-
er, Plant Supenntendant Ventimiglia commented,
according to the credited testimony of Springmeyer,
"If the union would get in there and if we go on
strike the company possibly would fold up. He said
they don't know if they could afford a strike, they
couldn't charge their price demands to the prices
they had to pay to the union scale and to the operators.
If they would strike each time they wanted a raise
they probably couldn't afford to strike, they couldn't
raise the price of their products."
The Trial Examiner found that these remarks were
violative of Section 8(a)(1). We do not agree . Rather,
we regard such statements as a legitimate economic
prediction which does not exceed the boundaries of
free speech protected by Section 8(c). Accordingly,
we shall dismiss this allegation of the complaint.
25
(2) Although the Trial Examiner found that
Respondent had on a number of occasions engaged
in conduct violative of Section 8(a)(1), he dismissed
other statements made by Respondent's officials to
various employees as "ordinary, passing-the-time-of-
day conversations without intent to coerce ...."
On examining these conversation, we reach a contrary
conclusion.
The record reveals that a few weeks prior to the
election, Foreman John Vickers asked employee Jarvis
what Jarvis thought "about the Union coming and
the whole thing in general." Then, each day for
a week before the election, Vickers asked employee
Hunt how he thought the election would go and
how he felt about the election. Further, on the Monday
following the election, Vickers asked Hunt how he
had voted in the election. Employee McFadden also
testified that Ventimiglia asked him five or six times
how he felt about the Union. Again, Ventimiglia
questioned leadman Springmeyer several times as to
how the employees felt about the Union and the
forthcoming election. Thereafter, Springmeyer did dis-
cuss the Union and the election with his fellow night-
shift employees and reported their sentiments back
to Ventimiglia.
The statements described above clearly constitute
instances of unlawful interrogation and must be con-
sidered as additional violations of Section 8(a)(1),
and we so find.
(3) The Trial Examiner did not discuss in his
Decision the fact that Respondent posted a notice
approximately 1 month after the election informing
employees that because the Union had filed charges
against it, Respondent was as a matter of law ".
. . prevented from improving the wages, benefits
or other terms and conditions of employment until
such time as these legal proceedings end."
Respondent's normal business practice was to grant
wage increases on an individual basis every 3 months
to employees who were performing well. Testimony
was offered that Respondent did not, in fact, discontin-
ue granting such raises throughout the time period
in question. Nevertheless, by posting the above-quoted
notice, Respondent misrepresented the applicable law.
It is well established that during an organizational
campaign an employer must decide whether or not
to grant improvements in wages and benefits in the
same manner as it would absent the presence of
the Union.' To announce that benefits will be withheld
because the Union has filed unfair labor practice
charges against Respondent is coercion in violation
of Section 8(a)(1).2
The May Department Stores Company, 174 NLRB No 109
Id, Dorn's Transportation Co, Inc., 168 NLRB No 68.
185 NLRB No. 9
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, as modified below,
and hereby orders that the Respondent, Sinclair &
Rush, Inc., St. Louis, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as here-
in modified:
1. Add the following as paragraph 1 (e) and reletter
the subsequent paragraph accordingly:
"(e) Informing employees that legal proceedings
initiated by the Union prevent improving wages, bene-
fits, or other terms and conditions of employment."
2. Add as the last paragraph in the Appendix:
WE WILL NOT inform employees that legal
proceedings initiated by the Union prevent
improving wages, benefits, or other terms and
conditions of employment.
It is further ordered that the election conducted
herein on May 16, 1969, be, and it hereby is, set
aside.
[Direction of second election' omitted from publica-
tion.]
' In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote , all parties to the election should have access to a list of voters
and addresses which may be used to communicate with them Excelsior
Underwear Inc., 156 NLRB 1236, N.L R B. v Wvman-GordonCompani
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must
be filed by the Employer with the Regional Director for Region 14
within 7 days after the date of issuance of the Notice of Second Election
by the Regional Director The Regional Director shall make the list
available to all parties to the election No extension of time to file
this list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Thomas S. Wilson, Trial Examiner: Upon a charge duly
filed on July 15, 1969,' and thereafter amended on August
5, by Teamsters, Local Union No 688, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereinafter referred
to as the Union or Charging Party, the General Counsel
of the National Labor Relations Board, herein referred
to as the General Counsel' and the Board, respectively,
by the Regional Director for Region 14, St. Louis, Missouri,
issued its complaint dated September 3, 1969 , against Sin-
All dates herein are in the year 1969 unless otherwise specified
This term specifically includes the attorney appearing for the General
Counsel at the hearing
clair & Rush , Inc., hereinafter referred to as the Respondent
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and (5) and
2(6) and (7) of the Labor-Management Relations Act, 1947,
as amended , herein referred to as the Act.
By order dated September 3 the Regional Director ordered
that the Union's Objections to the Conduct of the Election
in Respondent's plant conducted by the Board on May
16 be consolidated with the aforementioned complaint for
the purposes of hearing. The election had resulted in a
tie vote with two challenged ballots which would, of course,
have affected the results of the election and which have
to be determined. In addition, the Union had objected
to the Respondent's conduct prior to the holding of said
election with such conduct also having been alleged in
the aforementioned complaint as constituting interference,
restraint , and coercion.
Pursuant to notice a hearing thereon was held before
me in St. Louis, Missouri, on November 17, 18, 19, and
20, 1969. All parties appeared at the hearing, were represent-
ed by counsel, and were afforded full opportunity to be
heard , to produce and cross -examine witnesses, and to
introduce evidence material and pertinent to the issues.
At the conclusion of the hearing, oral argument was waived.
Briefs were received from General Counsel and Respondent
on January 26, 1970.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I there-
fore find:
Sinclair & Rush , Inc., is, and has been at all times
material herein, a corporation duly organized under and
existing by virtue of the laws of the State of Missouri.
At all times Respondent has maintained its principal office
and place of business in the city of St. Louis and State
of Missouri. Respondent is, and has been at all times
material herein , engaged in the manufacture, sale, and
distribution of plastic products and related products. During
the year ending June 30, 1969, which period is representative
of its operations during all times material herein , Respond-
ent, in the course and conduct of its business operations,
manufactured, sold, and distributed at its St. Louis plant
products valued in excess of $50,000, of which products
valued in excess of $50,000 were shipped from said plant
directly to points located outside the State of Missouri.
Accordingly, I find that Respondent is now, and has
been at all times material herein , an employer engaged
in commerce within the meaning of Section 2 (6) and (7)
of the Act.
SINCLAIR & RUSH, INC
II. THE UNION INVOLVED
Teamsters, Local Union No. 688, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization admit-
ting to membership employees of Respondent.
III THE UNFAIR LABOR PRACTICES AND OBJECTIONS TO
THE ELECTION
A The Basic Facts
Sometime in March at the request of employee Ray
Hunt, Plant Superintendent Ventimiglia' met with Hunt
and the rest of Respondent's employees in the plant. The
subject of the meeting was the employees' request for higher
wages. After hearing the request, Ventimiglia stated that
he would check with Respondent's officials and let the
employees know. Thereafter time went by but no word
came from Ventimiglia or Respondent about the wage
request.
Becoming discouraged with the lack of results from the
meeting , the employees began suggesting that they join
a union . So on April 2 employees Ray Hunt and Steve
Marler went to the office of the Union where they put
the facts before Organizer Michael F. Dunn. Dunn, who
was in a hurry to leave town, gave the employees some
Teamsters authorization cards, told them that they needed
a majority of the employees signed up, and closed the
audience.
The next morning Hunt and Marler handed out these
authorization cards to numerous employees as they foregath-
ered for coffee before work at a nearby restaurant known
as Helen 's Restaurant . That evening at Hunt 's request
employee Ethel Carter took cards to a number of temporarily
laid-off female employees. By the evening of April 6, 24
of Respondent's 40 employees had executed these unambigu-
ous authorization cards which were then mailed to the
Union that evening and received by Dunn the morning
of April 7.
On April 7 Dunn and Teamsters Organizer William
Chrostowski went to Respondent's plant, met with some
unknown female in Respondent's office, and demanded
recognition of her orally without offering the executed
authorization cards. This individual informed them that
both President George Sinclair and Wayne Rush, Respond-
ent's vice president and treasurer, were out of town but
that she would let them know upon their return.
Under date of April 8 Attorney Allan I. Berger as
attorney for Respondent refused recognition on the ground
that Respondent had a "good-faith doubt" of the Union's
majority status and because of Respondent's distrust of
such cards because of "the way they are obtained, and
the purposes for which they are used." However Respondent
stated that it was willing to cooperate in expediting a
Board representation election
' At or about this time Ventimiglia had been promoted from the
position of foreman to that of plant superintendent by Respondent
27
Omitting here a substantial number of conversations
between management representatives and various employees
which occurred between that date and May 16, a representa-
tion election was held on this latter date which resulted
in a tie vote with two challenged ballots- (1) that of John
Vickers challenged by the Union as a supervisor; and (2)
that of Mitzi Carter challenged by Respondent as a nonem-
ployee. The Union also objected to the election based upon
the aforementioned conversations which will be found and
discussed in a later section of this Decision.
B. The Challenged Ballots
1. John Vickers
Throughout his testimony John Vickers referred to himself
as a "leadman." The employees referred to him as a
"foreman ." This is pure semantics.
In March or April Respondent made Joe Ventimiglia
the "Plant Superintendent" under Plant Manager Froney-
berger who with Ventimiglia set the plant production sched-
ule daily in order to best take care of Respondent's orders.
Ventimiglia then posted the list of machines and operators
on a board. He spent most of his time in the office.
The man on the production floor during the day working
hours was John Vickers He saw to it that the operators
were working on the right machines and the right orders.
Vickers reported directly to Ventimiglia. Admittedly Vickers
was the conduit for Ventimiglia's orders. He took care
of matters on the production floor. He corrected timecards.
If employees needed help, they went to Vickers. Except
for relieving operators for their lunchbreak, Vickers did
little, if any, manual labor. He reported poor production
to Ventimiglia. He could and did shift operators from
one machine to another . Although allegedly having no
authority to hire or fire, Vickers discharged one employee
for poor production, although at the hearing Vickers main-
tained that in this instance he acted solely as a conduit
for Ventimiglia. However, Vickers had reported the opera-
tor's poor production to Ventimiglia prior to the discharge.
Vickers also discharged another employee and on that
occasion claimed public credit for the action. He had author-
ity to scrap poor production of operators on his own
initiative. He also had authority to allow employees to
take Respondent's products from the plant.
Respondent listed both John Vickers and Gerald Spring-
meyer , the leadman over four employees on the evening
shift , as employees eligible to vote in the Board election.
Springmeyer was permitted to vote without objection, but
Vickers' vote was challenged by the Union.
Respondent contends that as Spnngmeyer , leadman on
the evening shift over four employees, voted without chal-
lenge in the May 16 election, Vickers should have been
allowed to vote because the jobs of the two are or have
been interchangeable. It is true that on occasion, particularly
about the time of the election, Springmeyer and Vickers
have interchanged their day and night shifts for periods
of time . These interchanges seem to have taken place around
the time of the election when it seems that Respondent
introduced some temporary changes in Vickers' work for
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the apparent purpose of showing him to be an ordinary
employee.
There are important points of difference in the duties
between these two individuals. Vickers has authority to
excuse employees from the plant, to change their timecards,
to scrap employees' production on his own say so, and,
in at least two instances, to discharge employees. Springmey-
er has none of this authority. Vickers is paid $3.82 per
hour whereas Springmeyer receives $3 10. It is expected
that the orders given by Vickers will be obeyed without
question by both management and the employees. Vickers
does little, if any, manual work whereas Springmeyer does
a great deal. Vickers has discharged two employees whereas
Springmeyer has not and, indeed, has only the authority
to file written evening reports about events in the plant.
Vickers has discretion as to whether or not an employee
may be excused from work whereas Springmeyer has only
authority to excuse a man when he asks to leave the
plant. Springmeyer has no discretion in that regard. It
is quite obvious that Vickers has a great deal more authority
over the employees than Springmeyer, He is also over
a much larger staff than Springmeyer's four fellow employ-
ees.
I have no hestitation in finding that Vickers, at least,
is a supervisor within the meaning of the Act and, as
such, his ballot was properly challenged.
2. Mitzi Carter
Mitzi Carter was first employed by Respondent in 1967
as an operator but voluntarily left Respondent's employ
in the summer of 1968 for a vacation which she subsequently
changed to a permanent change of residence in the State
of Texas. She subsequently returned to St. Louis around
January 1969 and unsuccessfully requested employment
from Respondent. However in February 1969, Ventimiglia
sent for Carter to return to work. She returned to work
as a new employee but was never covered by Respondent's
Blue Cross-Blue Shield insurance. On March 12 Carter
was laid off by Ventimiglia for "lack of work," when
employee Faulkerson returned from maternity leave.
Although Carter has not worked for Respondent since
then, she was subsequently given several unemployment
compensation forms by Respondent when she reported to
Respondent that she was having difficulty in getting her
unemployment compensation from the commission. On this
slim reed General Counsel bases his contention that Carter
had an "expectancy" of reemployment with Respondent.
That is such a slender reed that I have no hestitation
in finding that Carter's employment ended long before
the election eligibility date and even long before there
was any union activity in the plant. The challenge to
Carter's ballot was therefore also proper. Also as Carter's
employment ceased before the eligibility date, her signed
authorization cannot be counted.
Consequently, I must find that the election results, if
the objections to the election are not upheld, ended in
a tie vote and, therefore, the Union was not entitled to
certification as a result of the election.
The elimination of Carter's signed authorization card
leaves the Union with 23 employees having signed authonza-
tion cards in the unit of approximately 40 employees
As the Union thus would have a majority even with the
inclusion of four part-time employees in the appropriate
unit as requested by Respondent , I see no reason in extending
this Decision by a discussion as to whether their inclusion
is proper or not.
Respondent also objected to certain executed cards on
the ground that some of the employees who executed such
cards had been misled into believing that these cards were
to be used either to get a meeting with the Union or
to secure a Board election. I was far from impressed with
the evidence Respondent adduced on these points . In view
of my ultimate decision in this case, I believe that a discus-
sion of this evidence and the legal points raised thereby
would serve only to unnecessarily lengthen this Decision.
C Interference, Restraint, and Coercion; Objections to the
Election
From the date of Respondent's refusal of recognition
and the Union's filing of its petition for certification to
the date of the election on May 16 Respondent's supervisory
and managerial staff engaged in numerous conversations
about the Union and the election with various and sundry
rank-and-file employees Statements made by Respondent
officials during these conversations form the basis for both
the Union's objections to the election and the allegations
of interference, restraint, and coercion alleged in the com-
plaint. Thus it becomes necessary to consider these numerous
statements.
Vice President Rush , Plant Manager Froneyberger, and
Plant Superintendent Joe Ventimiglia all had a number
of conversations with employee Herman McFadden. During
his several conversations with McFadden, Rush told him
to vote "the way [he] felt" but that "the company needed
more time," "that he would need time to improve things,"
that "they needed this vote of confidence," and then added
that "it was possible that if the union came in that [Rush]
had known places, due to high demands, that the union
ran the company out of business."
During several conversations with McFadden, Froneyber-
ger inquired, "if I could tell them where had the company
gone wrong down through the employees that they wanted
a union," and that "the company needed a vote of confidence
and they only needed a year. If they had a year to do
things, to improve things."
During a number of conversations Ventimiglia told
McFadden that "the company needed more time , in general,
they needed a vote of confidence, they would improve
things, in other words, they had been working on a
plan and it took some time to create this thing and they
had just got it together previous, I guess, to the union
deal that came in. . . . They would have to table that
because there was nothing they could do with it because
they couldn't offer nobody anything [due to the election]."`
Ventimiglia added that "there would be no more favors
to any individuals and that there were seniority rights,
' This part of this conversation was not denied by Ventimiglia
SINCLAIR & RUSH, INC
of course, that the older people would move to different-
to higher positions."
Employee Ray Hunt described his several conversations
with Ventimiglia as follows:
A. Well, my best knowledge, Joe [Ventimiglia] asked
me if I had ever been in an election before, I told
him yes. He asked me what happened, I said, "The
union " He asked me if I had any gripes or complaints,
and I said, "No " He said he thought that the company
could help me and the employees now that he had
a better position.... He told this was dust a Mickey
Mouse operation, that the plant wasn't big enough
to have a union.
On the morning of the election John Vickers, heretofore
found to be a supervisor, asked how Hunt felt about the
election and then said, "I know there was a meeting last
night with the union," that Vickers' vote was going to
be challenged and that "The company knew who was
at the meeting."
Employee Fred Quitmeyer had several discussions with
Ventimiglia during which "several times Joe would ask
for us to give the company a year to rearrange itself
and try to make things better for the employees, after
this instead of saying a year, he [Ventimiglia] would say
all we need is 3 months."
After one such conversation Quitmeyer found that Presi-
dent Sinclair was working during Quitmeyer's evening shift
and so "I asked him [Sinclair] what-where the company
stood and what they meant by giving him three months
to straighten theirselves [sic] out. He said, there is nothing
I can tell you definitely, except I have things on my
desk I want to bring out but I can't, because the union
has got my hands tied. He said, could you tell this to
the people and maybe they would understand, and he
said, I can't, the union has my hands tied."5
On another occasion Quitmeyer was talking to Foreman
Vickers when Vickers "said if the union does come in,
it would probably put such an economic strain on the
company that the company would have to pull up roots
and move to Florida."
One evening during this time Quitmeyer asked Vickers
where employee Frank Huskey was. Vickers answered, "I
don't know where he is, but last night he was at a union
meeting."
During this period Ventimiglia used to discuss the situa-
tion several times a week with Jerry Springmeyer, admittedly
a leadman but placed by Respondent on the list of those
eligible to vote in the election. According to Springmeyer,
Ventimiglia "started talking to me, after the representative
was coming down and we had the meeting with the union
and he knew what was going on and he asked me what-
he said, `What was the main gripe of the'-what I thought
was the main gripe with the guys, and I talked to him
and I told him I thought it was wages and that and
being-seniority being placed on different jobs and a lot
' Sinclair recalled Quitmeyer 's inquiry but testified that his own answer
referred only to the 1-year delay between elections , which amounted
almost to a non sequiturs in the light of the question asked. I credit
Quitmeyer especially as Ventimiglia did not deny his similar conversation
about the "plan" with McFadden
29
of guys didn't like where they were working and being
changed around so much. But I told him I thought it
was mostly wages." During these discussions Ventimiglia
also told Springmeyer that "Prior to this getting the union
in they had planned to work with the individuals more
and have better benefits and better pay rates and things.
He [Ventimiglia] said since he had been promoted to superin-
tendent he had more of a free hand to work with the
individuals No, he said they would work it out They
wanted to possibly have three months and if they couldn't
work out a solution with the employees within three months
that we could bring in any union we wanted to without
any objection." Ventimiglia added that Respondent could
do nothing about improvements before the election because
"their hands were tied because of the union, they just
couldn't do anything " He also added, "If the union would
get in there and if we go on strike the company possibly
would fold up. He said they don't know if they could
afford a strike, they couldn't charge their price demands
to the prices they had to pay to the union scale and
to the operators If they would strike each time they wanted
a raise they probably couldn't afford to strike, they couldn't
raise the price of their products." In addition Ventimiglia
"would ask if I [Spnngmeyer] would talk to them [the
employees] and see how they feel and what their outlook
was "
About a week or so before the election Ventimiglia asked
employee Orville Ramsey how Ramsey thought the election
would come out and inquired of Ramsey, "would you
mind feeling the women employees out" about their reaction
to the election Ramsey agreed to do so, discussed the
Union with two women employees, and then reported back
to Ventimiglia that the women were mostly interested in
the good pension plan which the Union would have.'
Ventimiglia inquired of employee Quitmeyer as to how
Quitmeyer thought employee Frank Huskey might feel about
the Union. Quitmeyer answered that he did not know
as Huskey "never expressed his feelings."
In addition there were numerous other inquiries of various
employees by Respondent's officials as to how the employee
or fellow employees felt about the election and how they
thought that it would come out. As these may well have
been just ordinary passing-the-time-of-day conversations
without intent to coerce, or, if not, are at least redundant,
I make no finding in regard to them.
On the other hand, there can be no doubt but that
in the above-found conversations Respondent officials were
deliberately intending to create the impression that, in
the event that the employees voted down union representa-
tion at the election , Respondent had unspecified plans from
which the employees would gain unnamed benefits in "3
months" or "a year";' that Respondent had plans to work
"personally" with the employees but would not be able
to carry such plans into effect if the Union won the election;
that Respondent had union activities under surveillance;
that employees should, and did, "feel out" and report
the union sympathies of fellow employees; and that there
' This testimony was uncontroverted
' One employee even was commissioned to pass this information
regarding benefits on to the other Respondent employees
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were even threats that the plant would be forced to close
down or to move in the event that the Union won the
election. These are such well-recognized instances of illegal
interference, restraint, and coercion in violation of Section
8(a)(1) of the Act as not to require any citation of authority.
The campaign was so widespread as to prove it to have
been intentionally planned and carried out and did not
consist of merely inadvertent statements.
Respondent's widespread campaign of oral interference,
restraint, and coercion in violation of Section 8(a)(1) occur-
ring between the filing of the petition for certification
and the casting of ballots is sufficient to have interfered
with the laboratory conditions the Board requires at election
time in order to make sure that the employees are free
to express their untrammeled desires at the ballot box.
Accordingly, I will set aside the election of May 16, 1969,
because of Respondent's having disturbed the necessary
laboratory conditions by these violations.
General Counsel and the Charging Party contend that
on the authority of the Gissell case' the effect of the
above-found violations upon the employees make the holding
of a second election impossible and, therefore, that Respond-
ent should be ordered to bargain with the Union on the
basis of the card majority shown by the Union. I cannot
agree. While widespread, the coercion here was all verbal
with some of it verging on the implied or the relatively
innocuous In my opinion, in the circumstances of this
case the violations here would not make the holding of
a fair second election impossible. I therefore will recommend
the holding of a second election among Respondent's
employees at a time when the Regional Director determines
that the effects of the Respondent's violations have been
dissipated.
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 Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship 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.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I have also found that Respondent, by the commission
of the unfair labor practices proscribed by the Act, thereby
engaged in objectionable conduct which interfered with
the election held on May 16, 1969. I shall therefore recom-
mend that said election be set aside and another be conducted
at such time as may be appropriate.
' N.L.R.B v Gissell Packing Co, 395 U S 575
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in this proceeding,
I make the following:
CONCLUSION OF LAW
1. Respondent is an employer engaged in commerce
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 interfering with, restraining, and coercing employees
in the exercise of rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging in unfair
labor practices within the purview of Section 8(a)(1) of
the Act.
4. By the aforesaid unfair labor practices, Respondent
has interfered with and illegally affected the results of
the Board election held on May 16, 1969.
5. The aforesaid conduct constitutes conduct affecting
commerce within the meaning of Section 2(6) and (7)
of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act,
as amended, I recommend that Respondent, Sinclair &
Rush, Inc., St. Louis, Missouri, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their own and
their fellow employees' union sympathies and activities.
(b) Threatening to close or move the plant in the event
its employees choose to have union representation for collec-
tive bargaining.
(c) Keeping the union activities of its employees under
surveillance and importuning employees to do the same
on its behalf.
(d) Promising its employees additional economic and
other benefits if they reject union representation in collective
bargaining.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization, to form labor organizations, to
loin or assist the Union or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which I find
is necessary to effectuate the policies of the Act:
(a) Post at its plant in St. Louis, Missouri, copies of
the attached notice marked "Appendix.' Copies of said
In the event no exceptions are filed as provided Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , 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
(cont'd)
SINCLAIR & RUSH, INC
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 14, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.10
IT IS FURTHER RECOMMENDED that the election conducted
in the appropriate unit of Respondent's employees on May
16, 1969, be set aside, and that another election be directed
at an appropriate time.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein."
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 "
10 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
it This specifically includes the allegation as to wage increases allegedly
granted by Respondent between April 11 and May 16 for the purpose
of influencing the employees in the Board election In his brief General
Counsel appears to have in effect withdrawn this allegation-even as
the evidence required
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees concerning
their sympathies and activities on behalf of Teamsters,
31
Local Union No. 688, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organiza-
tion, in a manner constituting interference, restraint,
or coercion within the meaning of Section 8(a)(1) of
the National Labor Relations Act, as amended.
WE WILL NOT keep the union activities of our
employees under surveillance.
WE WILL NOT imply to our employees that their
union activities are under surveillance nor will we
request any employee to keep such union activities
under surveillance or report back on them to us.
WE WILL NOT threaten to close down the plant
or to move the plant in the event that our employees
choose to have union representation in collective bar-
gaining.
WE WILL NOT promise or imply to our employees
that they will receive benefits, economic or otherwise,
in the event that they repudiate union representation
in collective bargaining.
SINCLAIR & RUSH, INC.
(Employer)
Dated By
(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, 1040
Boatmen 's Bank Building , 314 North Broadway, St. Louis,
Missouri 63102, Telephone 314-622-4167.