Soil Mechanics Corp.

National Labor Relations Board - Board Decisions

Nov 29, 1972

200 N.L.R.B. 544 (N.L.R.B. 1972)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Soil Mechanics Corporation and Carpenters Local
Union 1536, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO. Case 29-CA-2347
November 29, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On March 29, 1972, Trial Examiner Abraham H.
Mailer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Charging Party filed
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, conclusions, and recommendations
only insofar as they are consistent with this Decision
and Order.
We agree with the Trial Examiner's findings that
the Respondent violated Section 8(a)(1) of the Act by
interrogating its employees in its office as to their
interest in the Union after the Union made its
bargaining demand on March 11, 1971, and that the
pay increases granted to three of its employees
effective April 12, 1971, violated Section 8(a)(1) of
the Act. Contrary to the Trial Examiner, however,
for the reasons discussed below, we find that the
Respondent refused to bargain collectively with the
Union as the exclusive representative of its employ-
ees in the appropriate unit at its Brooklyn, New
York, operation in violation of Section 8(a)(1) and
(5) of the Act.
The Respondent is engaged in providing and
performing test boring and related services and
employs approximately eight employees as drillers,
drillers' helpers, or mechanics. The Trial Examiner
found that employees employed in these categories
constituted a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act. No exceptions were taken by the
parties to this finding.
On March 9, 1971, Henry Zylawski, a union
representative, approached employees Bruno and
Sarvis at a building site and solicited their help in
organizing the Respondent's employees. Zylawski
gave them some authorization cards, explaining that
the cards were for the purpose of authorizing the
Union to represent the employees in negotiating a
contract with the Respondent. After some discussion
regarding the union benefits, Zylawski spoke to other
employees and also gave them authorization cards.
On March 11, 1971, Zylawski and Charles John-
son, another union business representative, met with
Bruno, Sarvis, and one or two other employees, and
Johnson explained to the employees some of the
union benefits and answered their questions. He gave
them authorization cards and told them that the
purpose of the cards was to authorize the Union to
represent the employees and to meet with the
Respondent to negotiate a contract. Bruno then gave
Johnson authorization cards signed by himself,
Sarvis, Bacigalupi, Stokes, and McCormack, all
dated March 10.1 Gamble, a sixth employee, signed a
card the next day, March 12, but the Union did not
receive it until about 10 days later. The authorization
cards clearly authorized the Union to represent
employees and to negotiate a collective-bargaining
contract with the Respondent and there is no dispute
as to their validity. After receiving the cards Johnson
and Zylawski told the employees that they would
immediately go to the Respondent's office and speak
to Norman Weinstein, its president, and ask him to
recognize the Union and to negotiate a contract.
After leaving the jobsite Johnson and Zylawski
proceeded to the Respondent's office and met with
Respondent President Weinstein. At the time, Zylaw-
ski had the five signed authorization cards in his
hand. The Trial Examiner found that this represent-
ed a clear majority of the Respondent's employees in
the appropriate unit. No exceptions were taken to
this finding. Although Weinstein did not question the
majority showing, for various reasons he indicated
that he was not willing to sign a contract with the
Union and refused to negotiate. Johnson and
Zylawski thereupon left, and the Union filed a
petition for an election.
About 2 or 3 weeks after the Union made its
demand, Weinstein approached his employees in the
shop and asked them to come into his office. It was a
rainy day and, as was Respondent's practice, when
employees were not able to work at the jobsite
because of inclement weather they were employed in
various inside shop jobs. All of the unit employees
who had signed authorization cards, except McCor-
mack, who was ill, were present. Weinstein asked the
approximately seven employees whether they had
signed cards for the Union. After some hesitation,
the five employees present who had signed authoriza-
tion cards admitted that they had. Although at that
point Weinstein knew that a majority of the
employees in the unit desired to be represented by
I All dates hereinafter refer to the year 1971
200 NLRB No. 60
SOIL MECHANICS CORP.
the Union, he nevertheless proceeded to discuss the
pros and cons of the effect of unionization on the
employees and on the Respondent's business prac-
tices. A few days after this meeting the employees got
together and five of the employees who had signed
authorization cards drew up a statement stating that
they no longer wished the Union to represent them
and gave the statement to Weinstein.
In the week ending April 16, employees Bruno and
Sarvis each received a $25-a-week wage increase, and
employee Bacigalupi received a $15-a-week increase,
effective April 12. As noted above, all three employ-
ees had originally signed union authorization cards
and Bruno and Sarvis were the most active union
adherents. These increases were the largest ever
received by any employees in the unit. Prior wage
increases had never exceeded $10 a week.
The Trial Examiner found that the interrogation of
its employees as to their interest in the Union and the
pay raises given to three of its employees after the
repudiation of the Union were violative of Section
8(a)(1) of the Act. However, he concluded that the
evidence did not warrant finding that the Respon-
dent by its conduct unlawfully refused to recognize
and to bargain with the Union. Accordingly, he
dismissed the 8(a)(5) and (1) allegation. We do not
agree.
While on March 11 the Respondent had a qualified
right to refuse to bargain until the Union could
establish its majority in some manner other than the
mere assertion that it had authorization cards from
the employees in the unit, such right was not an
absolute one. As we noted in R & M Electric Supply
Co.,2 in the absence of a voluntary agreement
between the parties to utilize permissible procedures,
other than a Board-conducted election to resolve
majority status, an employer is not obligated to rely
on union-proffered authorization cards allegedly
establishing majority status. However, we further
stated that, should the employer after refusing the
union's claim of having majority status and its
demand for bargaining thereafter determine by
means of a poll under conditions of its own choosing
the Union enjoys a majority status, the Respondent
cannot ignore the results.
Here the Respondent, a few weeks after the Union
claimed majority status and made its bargaining
demand, called a meeting of its employees in its
office during working hours. Approximately seven of
the eight employees in the unit were interrogated and
specifically asked in effect if they had signed an
authorization card designating the Union as their
collective-bargaining agent. A majority of the em-
2 200 NLRB No, 59
3 See Sullivan Electric Company, 199 NLRB No 97
1 Member Penello, on the other hand, finds it unnecessary in the
545
ployees in the unit affirmatively indicated that they
had, and thus the Union's majority status was
ascertained. At that time the obligation to bargain
with the Union arose, and the Respondent could not
thereafter rest its refusal to bargain on the Union's
lack of a proven majority.3
Furthermore, in our opinion, the wage increases
given to three of the six union adherents by
themselves are sufficient, regardless of the Respon-
dent's poll, to warrant a Gissel type bargaining order.
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
610, 614-615; Skaggs Drug Centers, Inc., 197 NLRB
No. 171. These increases did not follow Respon-
dent's past practices and were much higher than any
prior wage increases. Contrary to the Tnal Examiner,
the impact of such wage increases on the employees
was as great as, if not greater than, a general increase
and would have a lingering effect making the
possibility of holding a fair and free election unlikely.
Cf. Federal Stainless Sink, 197 NLRB No. 76 (TXD,
The Remedy).4
We find, therefore, contrary to the Trial Examiner,
that the Respondent violated the Act by refusing to
recognize and to bargain with the Union and that the
policies of the Act will be effectuated by the
imposition of a bargaining order, as provided below.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, we shall order the Respondent
to cease and desist therefrom and take certain
affirmative action which we find to be necessary to
remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
For the reasons discussed above, we find that
imposition of a bargaining order is essential to
remedy the unfair labor practices and to protect the
statutory rights and interest of the employees.
Because of the scope and the extent of the unfair
labor practices found herein, we shall provide a
broad cease-and-desist order.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Carpenters Local Union 1536, United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All drillers, drillers' helpers, and the mechanic-
driller's helper, employed by Respondent at its
Seaford, New York, plant, exclusive of draftsmen,
circumstances here to pass upon whether the wage increases would warrant
a Gissel type bargaining order
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees, and all supervisors as
defined in Section 2(11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By refusing to bargain with the Union, Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
5. By interrogating its employees as to their
interest in the Union, the Respondent has engaged in
an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
6. By granting pay raises to employees Bruno,
Bacigalupi, and Sarvis, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Soil Mechanics
Corporation, Brooklyn, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their mem-
bership or interest in Carpenters Local Union 1536,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or in any other labor organiza-
tion of its employees, in a manner constituting
interference, restraint, or coercion within the mean-
ing of Section 8(a)(1) of the Act.
(b) Granting wage increases or other benefits to
employees to discourage them from engaging in
union activities.
(c) In any like or related manner interfering with or
coercing its employees in the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action designed
and found necessary to effectuate the policies of the
Act.
(a) Upon request, bargain collectively with the
Union as the exclusive representative of the employ-
ees in the bargaining unit, and embody in a signed
agreement any understanding reached.
(b) Post at its plant and office in Seaford, County
of Nassau, State of New York, copies of the attached
notice marked "Appendix."5 Copies of said notice,
on forms provided by the Regional Director for
Region 29, after being duly signed by an authorized
representative of the Respondent, shall be posted by
the Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
s In the event that this 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 "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concern-
ing their membership or interest in Carpenters
Local Union 1536, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, or in
any other labor organization of our employees, in
a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of
the Act.
WE WILL NOT grant wage increases or other
benefits to employees to discourage them from
engaging in union activities.
WE WILL NOT refuse to bargain collectively
with the Union as the exclusive representative of
our employees in the unit found to be appropri-
ate. The appropriate unit is:
All drillers, drillers' helpers, and the me-
chanic-driller's helper employed by Respon-
dent at its Seaford plant, exclusive of
draftsmen, office clerical employees, and all
supervisors as defined in Section 2(11) of the
Act.
WE WILL bargain upon request with the above-
named Union as the exclusive representative of
all employees in the unit described above with
respect to wages, hours, and other terms and
conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed contract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to
form, loin, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, and engage in other concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain
SOIL MECHANICS CORP. 547
from any and all such activities , except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
All of our employees are free to become and
remain members of the above -named Union, or any
other labor organization , or to refrain from doing so.
SOIL MECHANICS
CORPORATION
(Employer)
ments made by the Respondent to the employees who
received such increases.
All parties were represented at the hearing and were
afforded full opportunity to be heard , to introduce relevant
evidence , to present oral argument , and to file briefs with
me. On December 20, 1971 , counsel for the General
Counsel filed a brief , and counsel for the Respondent filed
a letter-memorandum . Upon consideration of the entire
record, the brief , and letter-memorandum , and upon my
observation of each of the witnesses , I make the following:
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 compli-
ance with its provisions may be directed to the
Board 's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11241, Telephone 212-596-
3535.
TRIAL EXAMINER'S DECISION
ABRAHAM H . MALLER , Trial Examiner : On April 8, 1971,
Carpenter 's Local Union 1536, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, herein
called the Union , filed a charge against Soil Mechanics
Corporation , herein called the Respondent . Upon said
charge , the Regional Director for Region 29 of the
National Labor Relations Board , herein called the Board,
on May 19, 1971, issued on behalf of the General Counsel
a complaint against the Respondent alleging that the
Respondent refused to recognize and bargain collectively
with the Union as the exclusive bargaining representative
of Respondent's employees in an appropriate unit therein
described ; interrogated its employees concerning their
membership in, activities on behalf of, and sympathy in
and for the Union ; and threatened its employees with loss
of work opportunities and other reprisals if they became or
remained members of the Union , and if they gave any
assistance and support to it, in violation of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), herein called the Act. In its
duly filed answer , the Respondent denied any violations of
the Act.
Pursuant to notice , a hearing was held before me at
Brooklyn, New York, on September 15 and 16, and
October 18, 1971. During the hearing , the General Counsel
moved , and was given leave, to amend the complaint to
allege additionally that on or about April 16, 1971,
Respondent granted wage increases to three named
employees effective April 12, 1971. Respondent filed an
answer denying the allegations set forth in the amendment,
and as an affirmative defense, averred that the increases
were merit increases granted pursuant to prior commit-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent 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 New York . At all times material
herein , Respondent has maintained its principal office and
place of business at 3770 Merrick Road , in the Town of
Seaford , County of Nassau , and State of New York, where
it is and has been at all times material herein continuously
engaged in providing and performing test boring services
and related services. During the year preceding the filing of
the complaint, which period is representative of its annual
operations generally, Respondent , in the course and
conduct of its business operations , performed test boring
and related services valued in excess of $50 , 000, of which
services valued in excess of $50 ,000 were performed in, and
for various enterprises located in , States other than the
State wherein it is located . Accordingly , I find and
conclude that the Respondent is engaged in commerce
within the meaning of the Act and that it will effectuate the
policies of the Act for the Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
Carpenter's Local Union 1536, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, is now, and
has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. Whether the Union represented a majority of
Respondent 's employees in an appropriate unit.
2. Whether the Respondent unlawfully refused to
recognize and bargain with the Union in violation of
Section 8(a)(5) of the Act.
3. Whether the Respondent coercively interrogated its
employees in violation of Section 8(a)(1) of the Act.
4. Whether the Respondent threatened its employees
with loss of work opportunities and/or other reprisals if
they joined the Union in violation of Section 8(a)(1) of the
Act.
5. Whether the Respondent granted certain employees
pay raises in violation of Section 8(a)(1) of the Act.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The Union 's organizing campaign
In March 1971,1 the Respondent employed eight
employees as drillers , drillers' helpers, or mechanics. These
employees were A. Tay, C. Gamble , J. Stokes, R.
Bacigalupi , A. Bruno, W. Sarvis, G. McCormack, and F.
Ponzio. Tay was a working foreman who earned considera-
bly more than the other employees in the unit . All the
others except McCormack were drillers or drillers' helpers.
McCormack was a mechanic who repaired trucks and
other equipment , but also worked in the field as a driller's
helper when needed . All of the foregoing employees were
also employed by the Respondent during the month of
April 1971 except Ponzio , who was terminated on March
31, 1971 The only other employees of the Respondent
during this period were two draftsmen and a secretary.
On March 9 Henry Zylawski, a union business represent-
ative, approached employees Bruno and Sarvis at the Glen
Oaks Country Club building site in Queens , New York,
and inquired whether they were interested in being
represented by the Union . He described some of the union
benefits to them, and Bruno and Sarvis indicated that they
were interested . Zylawski gave them some authorization
cards, explaining that the cards were for the purpose of
authorizing the Union to represent the employees in
negotiating a contract with the Respondent . Bruno told
Zylawski that he would look over the authorization cards
and probably sign one that evening and would return them
in a day or two. Zylawski then asked if there were any
other employees of the Respondent working in the area,
and Bruno informed him that other employees were
working at a jobsite in Great Neck , New York, and offered
to take him there. Zylawski , Bruno, and Sarvis then
proceeded to the Great Neck jobsite where Bruno and
Sarvis introduced Zylawski to employees Stokes, Bacigalu-
pi, and McCormack . Zylawski explained some of the union
benefits to the other three men, gave them authorization
cards , and told them that the purpose of the cards was to
authorize the Union to represent the employees and meet
with the Respondent to negotiate a contract . Zylawski then
arranged to meet the employees again at the Glen Oaks
jobsite on March 1 I
On the morning of March 11 , Zylawski and Charles
Johnson , another union business representative , met with
Bruno, Sarvis , and one or two other employees of the
Respondent at the Glen Oaks jobsite . Johnson again
explained to the employees some of the union benefits and
answered their questions . Bruno then gave Johnson
authorization cards signed by himself , Sarvis, Bacigalupi,
Stokes, and McCormack , all dated March 10 , which read
as follows.
AUTHORIZATION FOR REPRESENTATION
I [name] hereby authorize the United Brotherhood of
Carpenters & Joiners of Amenca AFL-CIO to repre-
i All events detailed herein occurred in 1971
a Weinstein denied making the foregoing statement, but admitted that
sent me in all matters relating to my employment with
this Employer, its successors and assigns, and to
negotiate, conclude, and administer any and all
agreements as to wages, hours and other conditions of
employment and to represent me in arbitration with
this Employer, its successors and assigns. This full
power and authority to act for the undersigned
supersedes and cancels any power to represent me
heretofore given to any person or organization. I agree
to be bound by the Constitution and By-Laws, and
Rules and Regulations of the United Brotherhood of
Carpenters & Joiners of America AFL-CIO, its
successors and assigns, and by any contract that may
be in existence at the time of this application or that
may be hereafter negotiated.
Johnson and Zylawski then told the employees that they
would immediately go to the Respondent's office and
speak to Norman Weinstein, its president, and ask him to
recognize the Union and negotiate a contract with the
Union. Johnson and Zylawski also told the employees that
if the Respondent refused to recognize the Union and
negotiate a contract, the Union would file a petition with
the Board for an election.
Earlier, on March 9, Bruno gave employee Gamble a
union authorization card, advising him of his meeting with
Zylawski that day and telling him to sign the card if he
wanted the Union to represent him. Gamble signed the
card the next day, but did not remember whether he
returned the signed card to Bruno or delivered it to
Johnson. In either event, the Union received the card
about 10 days later.
2. The demand for recognition and bargaining
After leaving the employees at the Glen Oaks jobsite on
March 11, Johnson and Zylawski proceeded to the
Respondent's office in Seaford, New York, and met with
Respondent's president, Norman Weinstein. After the men
introduced themselves, Johnson told Weinstein that a
majority of Respondent's core drillers and helpers had
signed authorization cards for the Union to represent them
and that he and Zylawski wanted to negotiate a contract
with him. At the time, Zylawski had the five signed
authorization cards in his hand. However, he did not offer
them to Weinstein, nor did Weinstein ask to look at them.
According to Zylawski and Johnson, Weinstein told them
that he could not afford to pay union wages and fringe
benefits or sign a contract with the Union and that if he
did so, he would go bankrupt. Weinstein also told them
that if the Union could organize his chief competitor, Ace
Test Boring Company, and get that company to sign a
contract, "he would be happy to sign an agreement with
us." 2 Johnson replied that the Union had been trying to
organize Ace and would continue trying to do so. Johnson
then said that if Weinstein refused to negotiate, the Union
would file a petition for an election with the Board.
Johnson and Zylawski thereupon left, and the Union filed
a petition for an election.
Ace Test Boring Company was mentioned in their conversation I credit
Johnson and Zylawski's testimony in this regard
SOIL MECHANICS CORP 549
3 Alleged interrogation and threats
About 2 or 3 weeks later, Weinstein approached his
employees in the shop and asked them to come in to his
office 3 It was a rainy day, and the employees were in the
shop cleaning jars Weinstein asked the employees whether
they had signed cards for the Union After some hesitation,
the employees admitted that they had Weinstein told them
that the purpose of the meeting was not to talk them into
joining or to talk them out of joining, but that he felt that,
as their employer, he ought to have a meeting with them to
get the matter out in the open He then proceeded to
discuss with them some of the advantages and disadvan-
tages of operating under a union contract Speaking from
notes which he held in his hand,4 he pointed out to the
employees that under a union contract, the employees had
job security in that they could not be fired at the whim of
an employer He also pointed out to them that under a
union contract they would have a substantially higher
hourly wage rate than he was paying them and better
fringe benefits Under the disadvantages, he pointed out
that under Respondent's current practice, all employees
worked 52 weeks a year with pay, even on rainy days and
snowy days when they could not work in the field, and
during the summer slow period,5 but under a union
contract they could be laid off on rainy days and during
slow periods He also pointed out to them that when work
takes them out of the geographical area, they currently
receive a per diem allowance of $20, whereas under a
union contract, he was obliged to pay them only $7
Weinstein told them that there was going to be a hearing
on the Union's petition, asked them to reach a decision
among themselves, and stated that he would abide by their
decision
4 The employees desert the Union
A few days later, the employees held a meeting in the
shop and decided that they would be better off without a
union They decided to draw up some papers stating that
they no longer wished to have the Union represent them,
and Sarvis volunteered to have his wife type up the
statements Two days later, Sarvis brought to the shop
statements addressed "to whom it may concern" which
stated that the undersigned employee no longer wanted the
Union to represent him Five employees signed the
statements and returned them to Sarvis who gave them to
Weinstein
On April 8 Joseph Geffen, secretary-treasurer of the
Union, and Business Representative Johnson attended an
informal conference at the Board's office in connection
with the representation petition filed by the Union
Anthony Marano, an attorney representing the Respon-
dent, also attended the meeting Attorney Marano asked
Geffen to meet with him privately When they were alone,
Attorney Marano pulled some papers from his brief case
and told Geffen that he had five signed statements that the
men no longer wanted the Union to represent them He
3 All employees except McCormack, who was ill were present
4 According to Weinstein's credited testimony he made the notes of the
provisions of a union contract supplied to him by another test drilling
company operating in a different geographical area
told Geffen that the employees had made a satisfactory
arrangement with the Respondent and that the statements
indicated that they were rescinding all commitments made
to the Union Geffen suggested that Attorney Marano
repeat what he had said to Board Agent Katz They then
returned to the conference room and Attorney Marano
gave the statements to Board Agent Katz and repeated
what he had said to Geffen Board Agent Katz returned
the statements to Attorney Marano and suggested that
Respondent might be in violation of the Act Geffen then
told Marano that he should call up his client and tell him
that if the Union did not get a recognition agreement
signed that day, it was going to file unfair labor practice
charges Attorney Marano left the room and returned a
few minutes later, indicating that Weinstein's answer was
"No" The meeting then broke up, and the Union
immediately filed an unfair labor practice charge against
the Respondent
A few days later Richard Hartman, another attorney
representing the Respondent, called Geffen and arranged a
meeting with him On April 15, Geffen and Johnson met
with Attorney Hartman in a restaurant After they were
seated, Attorney Hartman pulled out some papers from his
brief case and said that he had five statements for them
from the men they represented He handed the statements
to Geffen, who looked at them and showed them to
Johnson Attorney Hartman commented that the employ-
ees had made their own deal and no longer wanted the
Union to represent them and asked Geffen and Johnson
why they were pursuing the matter Geffen pointed out
that they had signed authorization cards and had come to
negotiate a contract When Geffen asked Attorney
Hartman what wage rates the Respondent was currently
paying the employees and what fringe benefits the
employees were receiving, Hartman replied that he did not
know, that it would take him a few days to find out
Hartman replied that he was there to negotiate, but that he
could not sign any agreement Geffen then pointed out that
the representation proceeding had been delayed, and he
did not think the Board would stand for any further delays
He also pointed out that an unfair labor practice charge
had been filed The meeting became argumentative, and
Attorney Hartman left Following this meeting, the Union
withdrew its petition for an election
Subsequently Weinstein returned to the employees their
statements purporting to rescind their union authoriza-
tions
5 The pay raises
On the week ending April 16, employees Bruno and
Sarvis each received a $25 wage increase , and employee
Bacigalupi received a $15 increase , all effective as of April
12 These increases were the largest ever received by these,
or any other , employees in the unit Prior wage increases
had never exceeded $ 10 per week Respondent contends
that these increases were granted pursuant to promises
made to the employees before the advent of the Union
5 Under Respondents current practice employees work in the shop
during periods when they cannot work in the field cleaning and labelling
jars repairing and maintaining trucks painting the company premises and
working on the lawn
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The matter is discussed in detail under the section
Concluding Findings, infra
B Concluding Findings
1 The appropriate unit
As previously stated, the Respondent is engaged in
providing and performing soil test boring services for
building and construction firms In addition to core
drillers, drillers' helpers, one mechanic-driller's helper, and
a working foreman, the Respondent also employs two
draftsmen and one clerical employee The drillers and
drillers' helpers are field employees who operate drilling
rigs at construction sites and take soil samples out of the
ground to test the quality of the soil The mechanic-driller's
helper also performs part of his duties in the field The
Board has held that heavy equipment operators in the
building and construction industry who constitute a clearly
identifiable and functionally distinct group with common
interests distinguishable from other employees constitute
an appropriate unit Del-Mont Construction Company, 150
NLRB 85 Also, units of field survey employees employed
by survey companies, excluding, inter alia, draftsmen and
office clerical employees, have been held to constitute an
appropriate unit Frederick H Zurmuhlen & Associates, 189
NLRB No 63, Browne and Buford, Engineers and Surve-
yors, 145 NLRB 765 Accordingly, I find and conclude that
all drillers, drillers' helpers, and the mechanic-driller's
helper employed by Respondent at its Seaford plant,
exclusive of draftsmen, office clerical employees and all
supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
2 The Union's majority status
On March 11, when the Union requested recognition and
bargaining, there were eight employees in the bargaining
unit described above 6 On that date, the Union had in its
possession authorization cards signed by five employees
and received a sixth authorization card shortly thereafter
Thus, the Union had a majority These cards were valid
authorizations, clear and unambiguous on their face The
employees who signed the cards were all literate, and there
was no misrepresentation as to the purpose and effect of
the authorization cards To the contrary, the signers were
fully aware of the purpose of the cards and were told that
they would be used by the Union to obtain recognition and
bargaining 7 Accordingly, I find and conclude that on
March 11, the Union represented a clear majority of the
Respondent's employees in the appropriate unit
3 The refusal to bargain
As previously stated, after the Union had secured
authorization cards from a majority of Respondent's
6 As previously stated employee Tay was described as a working
foreman The parties stipulated that he was a member of the appropriate
unit
V Both Bruno and Bacigalupi testified that Zylawski told the employees
that the cards were not binding Sarvis also testified to the same effect but
explained that he was told that he did not have to join the Union Zylawski
employees in the appropriate unit, Business Agents
Johnson and Zylawski called on President Weinstein at
Respondent's office Although Zylawski held the authori-
zation cards in his hand when he spoke to Weinstein, he
did not tender them to Weinstein, nor did he make any
attempt to demonstrate that the Union in fact represented
a majority On the other hand, Weinstein did not question
the statement of the business representatives that the
Union did represent a majority Instead, Weinstein
inquired whether the Union had organized his chief
competitor, Ace, and on receiving a negative reply, told
Johnson and Zylawski that he could not stay in business if
he signed a union contract unless Ace also signed a
contract with the Union, that when Ace signed a contract,
the Respondent would be happy to sign with the Union
The Union's representatives then told Weinstein that the
Union would file a petition for an election
The General Counsel contends that the Respondent
thereby refused to bargain in violation of Section 8(a)(5) of
the Act I do not agree In N L R B v Gissel Packing Co,
395 U S 575, the Supreme Court said at 594
Under the Board's current practice, an employer's good
faith doubt is largely irrelevant, and the key to the
issuance of a bargaining order is the commission of
serious unfair labor practices that interfere with the
election processes and tend to preclude the holding of a
fair election Thus, an employer can insist that a union
go to an election, regardless of his subjective motiva-
tion, so long as he is not guilty of misconduct, he need
give no affirmative reasons for rejecting a recognition
request, and he can demand an election with a simple
"no comment" to the union The Board pointed out,
however, (1) that an employer could not refuse to
bargain if he knew, through a personal poll for instance,
that a majority of his employees supported the union,
and (2) that an employer could not refuse recognition
initially because of questions as to the appropriateness
of the unit and then later claim, as an afterthought, that
he doubted the union's strength [Emphasis supplied ]
Neither of the foregoing conditions is present here
When the Union demanded recognition and bargaining,
the Respondent had no prior knowledge that its employees
had been approached by the Union and had no means of
knowing whether the Union did, in fact, represent a
majority of its employees Although the Union did
represent a majority, it made no attempt to prove it
Instead, the Union's representatives told Weinstein that
the Union would file a petition for an election, and did so
Thus, the Union opted in favor of establishing its majority
by the election process Plainly, the Union was not then of
the opinion that the Respondent had violated the Act by
refusing to bargain
The General Counsel relies upon Newton Chevrolet, Inc
37 NLRB 334, 341, and Master Touch Dental Laboratories,
165 NLRB 585, 588 Both decisions antedate Gissel Nor
are they apposite In Newton Chevrolet, the employer acted
denied telling the employees that the cards were not binding I credit
Zylawski and do not credit Bruno and Bacigalupi in this regard Sarvis
testimony that he was told he did not have to join the Union does not
detract from the validity of the cards as authorizing the Union to represent
the signers
SOIL MECHANICS CORP
in bad faith in insisting that the union involved organize
the entire industry, as evidenced by the fact that it
thereafter unilaterally put into effect the changes in wages,
hours, and working conditions demanded by the union
without giving the union credit for the changes In Master
Touch, the employer and the Union had enjoyed a
bargaining relationship for 14 years when the employer
refused to bargain further because the union had failed to
organize the employer's competitors Thus, the employer
was fully aware of the union's majority when it refused to
bargain, and thereafter engaged in unfair labor practices to
destroy the union's majority
In view of all the foregoing, I find and conclude that the
Respondent did not violate Section 8(a)(5) of the Act, and
the complaint should be dismissed in this regard
4 Interrogation
Admittedly, President Weinstein interrogated his assem-
bled employees as to their interest in the Union Such
interrogation must be considered to be coercive, because
none of the safeguards set forth in Struksnes Construction
Co, 165 NLRB 1062, 1063, were observed Accordingly, I
find and conclude that by such interrogation, the Respon-
dent violated Section 8(a)(1) of the Act
Although I have found that President Weinstein interro-
gated the assembled employees as above stated, I find that
he did not interrogate employee McCormack who was
absent from the foregoing meeting Sometime later,
President Weinstein did have a conversation with McCor-
mack while the two men were in a station wagon driving to
pick up a truck Both Weinstein and McCormack agree
that it was McCormack who initiated the conversation,
telling Weinstein that he had signed an authorization card
for the Union He asked Weinstein whether, if the
Company went union, he would have to join the Union
Weinstein replied that he did not know the answer to
McCormack's question I find and conclude that Weinstein
did not interrogate McCormack in violation of Section
8(a)(1) of the Act
5 Alleged threats of layoffs
As stated above, following the interrogation, President
Weinstein discussed the advantages and disadvantages to
the employees of operating under a union contract Among
the disadvantages, Weinstein pointed out that, under
Respondent's current practice, the employees were guaran-
teed 52 weeks' work a year, doing work around the plant
when the weather was inclement and during the slow
season Under a union contract, the Respondent could lay
off employees during the slow season and need not pay
them when they were unable to do drilling work because of
inclement weather The General Counsel has seized upon
this and contends that this was a threat to lay off the
employees if they joined the Union I cannot agree The
General Counsel's contention would have greater force
and validity if the matter of layoffs during the slow season
8 In support of this contention the General Counsel relies upon
Frederick H Zurmuhlen & Associates supra The Zurmuhlen case is
inapposite There the employer s statement that if the Union came into the
picture the Respondent would lay off employees during the winter months
551
and no work on rainy or snowy days were the only matter
mentioned by Weinstein 8 But this is not the case
Weinstein discussed both the advantages and disadvan-
tages of working under a union contract Thus, he made it
clear to the employees that under a union contract they
would have job security and would receive a substantially
greater hourly rate and better fringe benefits Against these
acknowledged advantages, he pointed out the balancing
considerations of the possibility of layoffs during the slow
season and not working during inclement weather, and the
smaller per diem for travel work under a union contract as
against the per diem which the employees currently
received Finally, Weinstein assured the employees that he
would abide by their decision In this context , the layoffs to
which Weinstein referred did not constitute a threat of
reprisal In effect, Weinstein was pointing out that the
increased hourly wage that he would have to pay under a
union contract would have an adverse economic impact on
Respondent and would prevent it from paying for
nonproductive time In sum, I find that Weinstein's
statement constituted a fair and objective discussion of the
pros and cons of working under a union contract In this
connection, it is significant that neither the General
Counsel nor the Charging Party presented any rebuttal
evidence to the effect that Weinstein had misrepresented
the provisions of the union contract Weinstein's speech
was therefore the expression of his views and argument as
to the benefits of a union contract and, as such, was
protected by the free speech provision ofSection 8(c) of the
Act Cf Bostitch Division of Textron, Inc, 176 NLRB No
47, Snap Out Binding & Folding Inc, 166 NLRB 316, 327,
T M Duche Nut Co, Inc, 174 NLRB 457, 458
Accordingly, I find and conclude that the Respondent did
not threaten the employees with layoffs, in violation of
Section 8(a)(1) of the Act, and the complaint should be
dismissed in this regard
6 The pay raises
As stated above, the pay raise of $25 to Bruno and Sarvis
and the $15 raise to Bacigalupi, all on April 16, were the
largest ever granted by the Respondent Respondent
contends that the raises were granted pursuant to promises
made to the employees before the advent of the Union,
that the promises to Bruno and Bacigalupi were occasioned
by their promotion to driller, while the promise to Sarvis
was made when he was hired
The evidence falls far short of substantiating Respon-
dent's contention Although Weinstein, Bruno, and Baciga-
lupi testified that in the latter part of 1970, Weinstein told
them that they would receive a raise "after the winter" if
they proved themselves, admittedly no amount of the
increase was mentioned, nor was any specific time stated
According to Weinstein, the occasion for the promises was
the fact that both Bruno and Bacigalupi were promoted
from drillers' helpers to provisional drillers However,
Bacigalupi testified that he became a driller approximately
2 years before the hearing Furthermore, although Wein-
when work was slow was not made in the context of a discussion of the
advantages and disadvantages of working under a union contract but was
independently stated as a threat
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stein testified that he told both Bruno and Bacigalupi that
they were doing well in January or February 1971, and that
if they kept it up they would receive raises in the spring,
Bruno testified that Weinstein never told him how he was
doing after he had been promoted to driller and before he
received the wage increase in April In sum, I do not credit
Weinstein's testimony that the raises were given pursuant
to prior promises Moreover, even if the foregoing
testimony were taken at face value, it fails to show an
explicit promise of a specified wage increase to be given at
a specific time
The same infirmities are present in the case of the wage
increase to Sarvis Weinstein testified that he had hired
Sarvis in September 1970, at $100 a week, but because
Sarvis had been highly recommended to him and had
complained about his inability to get along on $100 a week,
he, Weinstein, at the time of hiring had promised to bring
Sarvis' salary up to $140 in 6 months Sarvis received a $10
raise approximately a month and a half after starting, and
another $10 increase just before Christmas Sarvis testified
that when he got his second increase in December 1970,
Weinstein promised him a $20 raise if he improved and
told him that he was pretty close to being a driller, but did
not tell him when he would get the raise The pay raise
Sarvis received in April brought him up to $145, in excess
of the promise allegedly made to him when he was hired
In view of all the foregoing, I find and conclude that the
increases granted to these three employees were violative of
Section 8(a)(1) of the Act N L R B v Exchange Parts Co,
375 U S 405, C J Glasgow Co, 148 NLRB 98 The fact
that these increases were given after the employees had
repudiated the Union does not require a different conclu-
sion The illegal effect of a pay raise is not diminished by
the fact that it is given either as a reward to the employees
who have repudiated the Union or as a means of insuring
their continued loyalty to the employer Elliott-Williams
Co, Inc, 149 NLRB 1242, 1247-1248
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent set forth 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 thereof
VI THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I shall recommend that it cease and desist therefrom
and that it take certain affirmative action designed to
effectuate the policies of the Act
The General Counsel contends that the unfair labor
practices in the instant case cannot be remedied by the
application of traditional remedies and that a bargaining
order is required He argues that the facts of this case fall
9 Although the Trial Examiner s Decision in that case was issued before
the Supreme Court s decision in Gissel he did not recommend a bargaining
within the class of the "less extraordinary cases marked by
less pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede the
election process" (N L R B v Gissel Packing Co, supra, at
614) I cannot agree Insofar as the illegal interrogation is
concerned, the Supreme Court in Gissel said that "even if
an employer's limited interrogation is found violative of
the Act, it might not be serious enough to call for a
bargaining order" (supra at 609)
An essential basis for the General Counsel's contention
that a bargaining order is required is the argument that the
Respondent threatened the employees with layoffs during
the slow season and lack of work during inclement
weather There is no question but that President Wein-
stein's discussion of the advantages and disadvantages of
working under a union contract was the key factor that
motivated the employees to renounce the Union But, as I
have found above, Weinstein's discussion was fair and
objective and was an exercise of the right of free speech
Accordingly, an essential element of the General Counsel's
contention that a bargaining order is required is absent
This brings us to a consideration of whether the pay raise
which the Respondent granted to three of the employees
after the repudiation of the Union "was of such a nature as
to have a lingering coercive effect" (Arbie Mineral Feed
Co, 182 NLRB 146) In Tower Records, 182 NLRB 382, the
Board held that a general wage increase would have such
an effect But compare Arcoa Corporation, 180 NLRB 1,
where the Board in similar circumstances did not order
bargaining 9 In the instant case, the wage increase was not
a general one, but was limited to only three of the
employees in the unit It is speculative as to whether the
granting of a limited wage increase would in the future
impel those employees who did not receive an increase to
vote against the Union in an election Indeed, it could be
argued with equal force that it might cause them to resent
being left out and motivate them to vote against the
employer's desires Under all the circumstances, therefore,
I conclude that a bargaining order is not required in the
instant case to eliminate the effects of the Respondent's
unfair labor practices
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Carpenter's Local Union 1536, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act
3 The unit set forth in section IV of this Decision
constitutes an appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act
4 The Union has been at all times material herein the
exclusive representative of the employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act
5 By interrogating its employees as to their interest in
order The Board s decision was issued after Gissel
SOIL MECHANICS CORP
the Union, the Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act
6 By granting pay raises to employees Bruno, Baciga-
lupi, and Sarvis, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act
7 The aforesaid unfair labor practices are unfair labor
553
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
8 The Respondent has not violated the Act in respects
not found herein
[Recommended Order omitted from publication ]