Telex Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1968

171 N.L.R.B. 1155 (N.L.R.B. 1968)

VIKING OF MINNEAPOLIS
Viking of Minneapolis , Division of the Telex Cor-
poration and District 77, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO. Case 18-CA-2325
June 18, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 31, 1967, Trial Examiner Josephine
H. Klein issued her Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mend that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner 's Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case 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 the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner as modified herein:
1. The Trial Examiner found , and we agree, on
the evidence presented in this proceeding ' and for
the reasons set forth herein , that Respondent vio-
lated Section 8(a)(1) of the Act by making
promises of benefits to induce employees to refrain
from supporting the Union and by promulgating
and maintaining the no-solicitation and no-distribu-
tion rules.
(a) Speeches: The record herein shows that,
' The Trial Examiner erred in relying upon , and deeming herself bound
by, the Board 's decision sustaining objections in the representation
proceeding , as basis for finding that the speeches and no-solicitation and
no-distribution rules violated Section 8(a)( I) of the Act It is well settled
that the Board's findings and conclusions with respect to conduct alleged as
objectionable in a representation proceeding are not binding upon the Trial
Examiner in a subsequent hearing where such conduct is alleged as an un-
171 NLRB No. 7
1155
upon the commencement of union activities, three
meetings of employees were conducted by Respon-
dent in October 1966, during working time at
which Respondent's president, Kleiman, expressed
the Company's opposition to the Union.2 At these
meetings Kleiman told the employees that the Com-
pany was working on a retirement program and "it
looked like a real good deal"; more liberalized va-
cation benefits were being planned; the Company
was working on a job classification system; and the
Company would consider a sick leave plan. The
discussion of benefits at these meetings was cou-
pled with antiunion remarks designed to show the
employees that it would be an act of futility to
select the Union as their bargaining representative.
In substance, Kleiman told the gathered employees
"that we wouldn't gain anything by having a union,
that they could give us as much as the union would,
that you couldn't get blood out of a turnip ... that
[the Union] wouldn't do us any good, all it would
do would cost us some money ... [and that] the
Viking employees might be better off without a
union...."
Thereafter, on November 14, Kleiman con-
gregated all the production and maintenance em-
ployees and conducted a meeting between the 26th
and 24th hour preceding the election on the com-
pany premises , and on company time for which the
employees were paid. At this meeting Kleiman
reemphasized the same matters which were
discussed at the October meetings, adding that the
Company would attempt to provide better in-
surance coverage and that a job classification plan
was now available for the employees to review.
Such a job classification plan had been promised to
the employees at the October meetings. Kleiman
also invited the employees to come to his office and
discuss their complaints and gripes with him per-
sonally. Kleiman then emphasized to the gathered
employees the gravity of the risks which the em-
ployees assumed by selecting the Union.
Upon completion of Kleiman's speech, he
remained while employee Heath delivered a lengthy
prepared address to all the employees. In the
speech Heath reiterated several of the benefits
promised by Kleiman. He asserted Respondent
should be given a year's grace period to put them in
fair labor practice , since the issues are different in the two types of
proceedings Cf Dal-Tex Optical Company, Inc, 137 NLRB 1782,
1786-87
Y Respondent's witness , Von Stocken , best characterized these meetings
when she testified that the employees " knew what the union had to offer
them, but they wanted to find out what Mr . Kleiman would offer them "
353-177 0 - 72 - 74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect. He strongly urged the employees not to vote
for the Union as it would redound to their detri-
ment .' During the speech and at its conclusion
Kleiman made no corrections, repudiations, or dis-
avowals.' By his conduct we find that Kleiman gave
to the employees the impression that Heath was
speaking for the Respondent and thereby ratified
the statements of Heath as voicing the position of
management.'
In our view Kleiman's and Heath's speeches con-
tained express or implied promises of specific
benefits and improvements in terms and conditions
of employment if the employees refrained from
joining or assisting the Union.' Moreover, from
these speeches the employees could reasonably un-
derstand that these benefits would be achieved
without the intervention of a bargaining representa-
tive, and therefore that the selection of such a
representative was an unnecessary expense and fu-
tile.' Contrary to Respondent's contention it is no
defense that some of Kleiman's statements were
prompted by questions from the employees.' In this
regard we note that the Respondent instigated and
was the moving force in arranging these "em-
ployee" meetings, as Kleiman wished to present his
argument against the Union. Furthermore, contrary
to the Respondent's contention, the record
establishes that these promises of benefits and im-
provements in terms and conditions of employment
which were made during the critical preelection
period in October and November were not repeti-
tions of earlier promises made to the employees.
The earlier remarks were uttered by Kleiman at a
July 8 meeting at which the new Telex management
was introduced to the employees. These remarks
consisted merely of general assurance by the new
management that things would be better and ".. .
that if the company [was] successful we would
share it, [but] if the company wasn't successful
then there wouldn't be anything in effect to share
" Such statements fall far short of specific
promises or assurances of new benefits or changes
in terms and conditions of employment in the im-
mediate offing, spoken in the course of an anti-
union campaign.
(b) No-solicitation and no-distribution rules:
Without passing upon whether or not the rules were
presumptively invalid on their face, we find that
Respondent promulgated and maintained its rules
for the sole and unlawful purpose of frustrating the
employees in the exercise of their Section 7 rights.
In this regard the record shows that on October
11, only 13 days after the instant representation
petition was filed, Respondent allegedly at the sug-
gestion of its labor relations consultant posted on a
plant bulletin board a document entitled "Rules
Governing Solicitation Activities" which contained,
inter alia, the following restrictions:
1. There must be no distribution of Union
literature anywhere on the Company premises
during work time. There must be no distribu-
tion of Union literature by employees in work
areas of the plant either on work time or non-
work time.
2. Solicitation by employees of other em-
ployees is prohibited anywhere on the premises
during work time.
3. Outsiders are not authorized to enter
anywhere on the premises for the purpose of
conduction [sic] unionization activity, either to
solicit or distribute literature.'
Shortly after the November 15 representation elec-
tion the rules disappeared from the company-main-
tained bulletin board which was serviced by Super-
Among other comments Heath stated
We have been told by Mr Kleiman that an industry wide study is being
made by Telex for the purpose of implementing a retirement plan-
something to supplement our social security and old soldiers benefits
Isn't this an indication of the concern Telex has for its employces9
We have been told that Telex has under consideration a plan for
three, and possibly four weeks vacation based on length of service with
the company Isn't this an indication of the concern Telex has for its
employees9
We who are opposed to the union at this time only ask that out of
reason and fairness Telex should be given a grace period of one year
I say you have no moral right by your vote to dictate the condi-
tions under which this plant will be operated in the future , unless you
intend to stay here and either enjoy the benefits or suffer the con-
sequences
In this respect Heath testified as follows
Q Did Mr Kleiman say anything to you while you were giving your
speech on November 149
A Only once, and that was when I was referring to the insurance
benefits , I listed them off, and I says, " Mr Kleiman , if I am in error I
hope you will correct me," and he said no, the insurance benefits were
as I had given
Cf Custom Chair Mfg Co, 170 NLRB 454 (TXD), Marlene Indus-
tries Corporation, 166 NLRB 703 (TXD), Steuart & Stevenson Services,
Inc, 164 NLRB 741
Redcor Corporation, 166 NLRB 1013
See The Trane Company (Clarksville Manufacturing Div ), 137 NLRB
1506, 1510
e Heick Moving & Storage, Inc , 150 NLRB 1124, 1130, Tom's Superniar-
ket, Inc , 157 NLRB 1276, 1282, enforcement denied 385 F 2d 198 (C A
7), Radiator Specialty Co v NLRB , 336 F 2d 495, 498-499 (C A 4)
The Respondent sought to portray these rules as a mere clarification of
a previous unwritten rule, and thus create the impression that these rules
announced on October 11 represented nothing new so far as Respondent's
employment conditions were concerned However , Kleiman's understand-
ing that the previous rule was "[s]pecifically that production time was not
to be taken for solicitation of any type without prior management ap-
proval" and his admission that the rules " [ were] an extension of what
had not been written before" clearly establishes that the rules posted on
October 11 were much broader in coverage Moreover , each employee
who testified had no knowledge of any prior unwritten rule governing sol-
icitations Thus, the rules restricting solicitation and distribution were en-
tirely new to the employees
VIKING OF MINNEAPOLIS 1157
visor Johnson. As of the close of the instant hearing
the rules had not been replaced by Respondent.
Prior to the posting of the rules and subsequent to
their removal solicitations and collections of all
kinds were carried on by the employees in the
presence of supervisors during worktime and in
production areas . In view of the timing of the
promulgation and posting of the rules, the timing of
their subsequent disappearance without replace-
ment, and the demonstrated plant practice of
liberality with respect to employee solicitations and
collections, we conclude that the rules were
promulgated and maintained for the discriminatory
purpose of combating the Union's organizing cam-
paign and repressing union activities in violation of
Section 8(a)(1) of the Act.10
2. We agree with the Trial Examiner, for the
reasons stated in her Decision, that the Union
represented a majority of the employees in the ap-
propriate unit at all relevant times herein. We also
agree with the Trial Examiner, for the reasons
stated herein, that Respondent refused to recognize
and bargain with the Union on and after September
29 in violation of Section 8(a)(5) and (1) of the
Act.
As more fully set forth by the Trial Examiner, on
September 28 the Union, which had secured signed
authorization cards from a majority of the em-
ployees then in the appropriate unit, filed a
representation petition with the Board and at the
same time mailed to Respondent its initial demand
for recognition and request for bargaining. Respon-
dent did not reply to the demand letter, which it
received on September 29, but rather, commenced
upon the aforementioned course of serious anti-
union conduct. Thereafter, on November 3, after
having examined and compared against the signed
authorization cards the list of unit employees sup-
plied by Respondent, the Union again demanded
recognition as exclusive bargaining representative
and offered to submit the cards to a neutral third
party for verification of its majority status. Again
Respondent made no reply or acknowledgement.
The Respondent's silence after the September 29
demand coupled with its continued widespread, and
substantial antiunion conduct in violation of Sec-
tion 8(a)(1) clearly reveals that the Respondent's
failure to recognize the Union was based on its
desire to gain time in which to undermine the
Union. Such conduct also clearly demonstrates that
the Respondent totally rejected the concept of col-
lective bargaining, and was acting in bad faith to
defeat the desires of the employees. Accordingly,
we find that the Respondent refused to recognize
and bargain with the Union on and after September
29 in violation of Section 8(a)(5) of the Act."
An order directing the Respondent to bargain
with the Union, upon request, is necessary to
remedy the effects of its other unfair labor prac-
tices. The record clearly shows that the Union
represented a majority of the employees in the ap-
propriate unit when the Respondent initiated its
course of unfair labor practices aimed at destroying
this support. The subsequent diminution of support,
as revealed by the Union's election defeat, can only
be attributed to the Respondent's unlawful con-
duct.12 Therefore, we shall order the Respondent to
bargain, upon request, with the Union both to
remedy its violation of Section 8(a)(5) and its
violations of Section 8(a)(1) of the Act.
3. The Trial Examiner also found, and we agree
for the reasons stated in her decision, that Respon-
dent violated Section 8(a)(5) of the Act by taking
unilateral action affecting wages and other terms
and conditions of employment on and after Oc-
tober 11.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Viking of Minneapolis,
Division of the Telex Corporation, Bloomington,
Minnesota, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified:
Amend paragraph 2(d) by adding the following
at the end thereof:
"(d) If, however, its plant in Minneapolis
(Bloomington), Minnesota, is no longer in opera-
tion, then mail an exact copy of the attached notice
to District 77, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, and to
each employee in the appropriate unit who was em-
ployed by Respondent at said plant during the
period involved herein to the date of its closing.
Copies of said notice, on forms provided by the Re-
gional Director for Region 18, after being duly
10 Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527; Ward Manufactur-
ing, Inc., 152 NLRB 1270, 1271; State Chemical Company, 166 NLRB 455,
Pace, Inc., 167 NLRB 1104 (TXD)
11 Joy Silk Mills, Inc., 85 NLRB 1263, enforcement as modified on other
grounds 185 F 2d 732 (C A D C ), cert. denied 341 U S 91411 Bryant Chucking Grinder Company, 160 NLRB 1526, 1530, enfd 389
F.2d 565 (C.A 2), Fabricators, Incorporated, 168 NLRB 140.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by an authorized representative of Respon-
dent, shall be mailed immediately upon receipt
thereof, as herein directed."
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: Upon a
charge filed by District 77, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, on November 21, 1966, and thereafter
amended, against Viking of Minneapolis, Division
of the Telex Corporation, the Regional Director is-
sued a complaint on April 18, 1967. Pursuant to
due notice, a hearing on the complaint as then
amended was conducted by the Trial Examiner on
May 16, 17, and 18, 1967, in Minneapolis, Min-
nesota. All parties were represented and were af-
forded full opportunity to be heard and to examine
and cross-examine witnesses.
Upon the entire record, observation of the
demeanor of the witnesses, and careful considera-
tion of the briefs filed by the General Counsel and
Respondent, the Examiner makes the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and
the Examiner finds that at all times material herein
Respondent has maintained a principal office and
place of business in Bloomington , Minnesota. Dur-
ing a representative 12-month period , Respondent,
in the course and conduct of its business opera-
tions, manufactured , sold, and distributed products
the gross value of which exceeded $50,000, and,
during the same period , purchased and received
supplies and materials from points outside Min-
nesota valued in excess of $50,000. Respondent is,
and at all times material herein has been, an em-
ployer engaged in commerce within the meaning of
the Act.'
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Viking of Minneapolis, a relatively small com-
pany, had been engaged in the production of tape
recorders in Bloomington 2 Minnesota, for many
years prior to July 1966,3 when, by purchase, it
became a division of The Telex Corporation. So far
as appears, there had never been any union or-
ganizational activity at Viking under Mr. Rasmus-
sen, its prior owner.'
On September 13, the Union commenced its or-
ganizational campaign, with Union Organizer Ed-
ward Ninteman visiting employee Joyce Medland at
her home. He gave her blank union authorization
cards and instructions as to the method of soliciting
signatures. Union organizational meetings were
then held after the close of business on September
20 and 26.
On September 28 the Union filed a representa-
tion petition with the Board (Case 18-RC-6950)
and at the same time mailed to Respondent a de-
mand for recognition and request for bargaining.
Respondent did not reply to the demand letter,
which it received on September 29.
On October 13, the parties entered into a stipula-
tion for certification upon consent election, which
was approved by the Regional Director on October
19. On November 3, the Union sent to Respondent
a second demand for recognition and bargaining.
The Board election, held on November 15, was
lost by the Union. On November 18, the Union
filed objections to the election. Then, on November
21, the Union filed its original unfair labor practice
charge.
On December 30 the Regional Director sustained
one of the Union's three objections to the election.
He recommended that the election be set aside and
a second election be directed. On timely exceptions
filed by Respondent, the Board, on March 22,
1967, adopted the Regional Director's findings and
recommendations and directed a second election.
No election was held pursuant to the Board's
Order, and the Union's petition for certification
was withdrawn on April 13, 1967, with the Re-
gional Director's approval. The present complaint
was issued on April 18, 1967, based on the charge
of November 21, as amended on January 16, 1967.
The charge, as further amended on May 12, 1967,
and at the hearing, alleged that:
1. Respondent violated Section 8(a)(5) by:
(a) Refusing to honor the Union's recogni-
tion and bargaining demand dated September
28 (repeated November 3);
(b) Unilaterally changing wage rates and
terms and conditions of employment; and
(c) Unilaterally deciding to move the plant
without bargaining with the Union as to the ef-
fect of the move on unit employees.
2. Respondent violated Section 8(a)(1) by:
' This finding refers equally to Viking of Minneapolis before July 1966
when it became a division of the Telex Corporation.
2 Bloomington is a suburb of Minneapolis As did the witnesses, the Ex-
aminer will here use "Bloomington" and "Minneapolis" interchangeably
There is another Viking establishment in Savage, Minnesota, about 10
miles away Telex also has a relatively new installation in Glencoe, Min-
nesota . In addition , as discussed below, at the time of the present hearing
Telex planned to build a new plant in Blue Earth, Minnesota, about 100
miles from Minneapolis The Company's plan was to move the Viking of
Minneapolis operation to Blue Earth, there to be consolidated with Telex's
Magnecord production of tape recorders, which was to be moved from Tul-
sa, Oklahoma On July 8, 1966, Ansel Kleiman, for Telex, became pres-
ident of Viking
' Unless otherwise specified , all dates are in 1966
In a speech delivered at a preelection meeting called by Respondent,
employee Ralph Heath referred to Rasmussen's intransigent opposition to
unions.
VIKING OF MINNEAPOLIS
(a) Granting wage increases to employees in
its Delco Department on or about September
23, before the Union made its bargaining de-
mand and filed its representation petition;
(b) Making promises of benefits to induce
the employees not to support the Union and
maintaining unlawful no -solicitation and no-
distribution rules in October and November,
during the election campaign;' and
(c) Announcing a general wage increase
covering unit employees on January 4, 1967,
after the election.
B. The Alleged Violations of Section 8(a)(5)
1. Alleged wrongful refusal to recognize the Union
a. The appropriate unit
The complaint alleged and Respondent's answer
admitted that the appropriate bargaining unit was
"All production and maintenance employees of
Respondent at its Minneapolis plant; excluding all
office employees, professional employees, guards
and supervisors." This was the unit described in the
Union s petition for certification , in the agreement
for consent election , in the Regional Director's re-
port on objections to the election , and in the
Board 's Order setting the election aside and direct-
ing a second election.
At the outset of the hearing , the parties agreed to
the identity of 95 members of the unit, with the
status of 6 employees to be litigated. Of the six em-
ployees in dispute , the General Counsel maintains
that two ( Bernice Cole and Vernon Erickson)
should be excluded from, and four ( Kai Jensen,
Susan Harvey Rosenlund , Samuelson , and John
Erickson ) included , with Respondent 's position
being the reverse. If Respondents position were ac-
cepted in toto, there would be a unit of 97. Since
the Examiner has concluded ( see part II , B, 1, b, in-
fra) that the Union held valid authorization cards of
58 employees, in addition to those of the 4 em-
ployees Respondent would exclude, it may be un-
necessary to determine the unit placement
questions raised . However , they were litigated and
briefed and, since the Board might disagree with
the Examiner 's disposition of the validity of the
cards questioned by Respondent, the unit of place-
ment questions will be here briefly discussed.'
Bernice Cole and Vernon Erickson: On the rele-
vant date, these two employees did work for and
were on the payrolls of both Viking of Minneapolis
and Viking Tool and Die Co., which is located in
' A union objection to the election based on this allegation was dismissed
by the Regional Director because the alleged conduct antedated the
representation petition.
6 This was the alleged conduct on the basis of which the first election was
set aside.
' A decision at this time may also forestall possible future questions in
the course of bargaining.
1159
Savage, Minnesota. When it appeared from the
testimony that they were physically located at the
Savage plant, the Examiner indicated her opinion
that they clearly were not within the unit as defined
in the complaint and admitted by Respondent.
Respondent thereupon moved for leave to amend
its answer to delete the phrase "at its Minneapolis
plant" from the scope of its admission. The Ex-
aminer denied the motion on the ground that the
Board's definition of the appropriate unit in the
representation case is conclusive in the present
proceeding. That ruling is here reaffirmed. Rohm &
Haas Company, 155 NLRB 227. The conclusiveness
of the Board's definition of the bargaining unit is
strengthened rather than, as Respondent contends,
weakened by the fact that it was based on agree-
ment of the parties. Guyan Machinery Company,
155 NLRB 591, 594.
Since, on the undisputed evidence, Cole and Ver-
non Erickson were not employees "at [Respon-
dent's] Minneapolis plant," they must be excluded
from the unit. This conclusion is not altered by the
apparent fact that they voted in the election
without challenge. Cf. Mitchiyoshi Uyeda, d/b/a
Udaco Manufacturing Company, 164 NLRB 700.
John Erickson: The parties agreed that the status
of John Erickson was in issue and was to be
litigated. In its brief, Respondent says that " during
the course of the trial, General Counsel and em-
ployer's counsel stipulated and reached agreement
that John Erickson should be excluded by reason of
being a part time employee." Respondent provides
no record reference. The Examiner finds no such
agreement reflected on the record, and does not re-
call any such agreement having been commu-
nicated to her during the hearing, either on or off
the record.8 In his brief, the General Counsel says:
"The parties' final position concerning unit place-
ment of Erickson was inadvertently left out of the
record. However, the record reflects that this em-
ployee was employed as a Delco Department as-
sembly employee on September 27."
The record establishes that John Erickson
worked for Respondent from the beginning of Sep-
tember through March 28, 1967. He thus was not
just a summer student employee. The record also
discloses that from the beginning of September
through November 21, 1966, his hours ranged from
16-1/2 to 29-1/2 per week, with 27-1/2 hours ap-
parently being his normal workhours. There is no
reason to believe this period was atypical. On the
record, the Examiner finds that John Erickson was
a regular part-time employee on the date of the
Union's demand, and thus is to be included within
the unit.
" Any such agreement, even if reached, would not be binding on the Ex-
aminer if it was contrary to established Board policy Southbridge Sheet
Metal Works, Inc, 158 NLRB 819, 826, Mttchiyoshi Uyeda, supra. "Even
when the parties have agreed on the composition of a bargaining unit, the
Act imposes upon the Board the duty to exercise its decretion in such a way
as to investigate and determine the voting eligibility of employees whom
the parties have agreed to exclude "
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kai Jensen: Rasmussen, the former owner of Vik-
ing, was a partner or joint entrepreneur with a Mr.
Jensen in the production of tape recorders in
Denmark. Jensen's son , a native of Denmark, came
to the United States to work 1 year at Viking of
Minneapolis for the purpose of learning the busi-
ness . Rasmussen had agreed with the elder Jensen
that Kai would be transferred from department to
department throughout the plant so that he could
become acquainted with all phases of the business.
When Telex took over, Kleiman agreed to honor
Rasmussen 's commitment. Jensen thus worked in
several different departments in succession, includ-
ing engineering . In each of them he performed the
same type of work as rank-and-file employees. He
was being paid $2 per hour as against the $1.60 per
hour generally paid to beginning employees. But he
received the same fringe benefits as other produc-
tion employees. There is no evidence that he had
any supervisory or other duties different from those
of other employees or that he enjoyed any special
privileges. As the General Counsel observes,
Respondent included Jensen's name in the eligibili-
ty list it provided to the Board, and he was not chal-
lenged when he voted in the Board election. But, as
previously noted, agreement of the parties is not
conclusive as to unit status.
Weighing the various factors, the Examiner con-
cludes that Kai Jensen was a temporary employee.
His status was analogous to that of a management
trainee with little community of interest with other
production and maintenance employees. Ac-
cordingly, he is excluded from the unit . Diana Shop
of Spokane, Inc., 118 NLRB 743, 745.
Kathryn Samuelson: Employee Samuelson works
in the office of the shipping department, under the
supervision of the shipping foreman. Her office,
which is shared with the shipping foreman and an
employee of the Company s advertising depart-
ment , is at the rear of the plant, whereas the Com-
pany's general offices are at the front of the build-
ing. Samuelson has no contact with the main office
personnel except for visits to that office to dis-
tribute material . She processes all incoming and
outgoing orders and checks serial numbers of all
items shipped out and of any instruments returned.
She secures information for such records from
production and shipping personnel, with whom
most of her working time is spent. Her benefits
have always been the same as those of production
workers, and she was not given sick leave benefits
when, some time in the past, they were granted to
personnel of the Company's main office.
Although Kleiman testified that, in signing the
consent-election agreement, he intended to exclude
all clerical workers, whether attached to the
"front" office or to the plant, there is no evidence of
any mutual understanding to that effect. Ac-
Sixty-five were introduced However, that of Kai Jensen is here
eliminated because of the present holding that he was not properly mn-
cordingly, the unit definition adopted by the Board
in the representation proceeding must be read as
conforming to the Board's general practice of not
including plant clerical employees within "office
employees." See The Joclin Manufacturing Com-
pany, 144 NLRB 778, 782.
The Examiner finds without merit Respondent's
contentions that the issue is to be determined by
reference to the unit described in the Union's bar-
gaining demands and that the "Union's demand
letter clearly excluded office employees." The
Union's demand referred only to "production and
maintenance employees," a phrase which most
commonly is used to include plant clericals.
Susan Harvey Rosenlund: Susan Harvey Rosen-
lund was employed by Respondent on September
29, 1966, but has since left the Company. The na-
ture and duties of her job were described by em-
ployee Friendshue, Rosenlund's replacement.
She worked in a small office adjacent to the shop
area. Phil Phelon, plant manager , has a desk in the
same office, and Gerald Johnson, assistant plant
manager , also uses the office. Production blueprints
are kept there and production line leaders use the
office for examining blueprints. Rosenlund kept
time records of the production workers, distributed
paychecks, and prepared and filed credit slip or-
ders. Most of her work was performed with produc-
tion and maintenance employees and was directly
related to production.
On all the evidence, the Examiner finds that, as
claimed by the General Counsel, she was a shop
payroll clerk and timekeeper. As such, she is
properly included in the production and main-
tenance unit here involved. American Beryllium
Company, Inc., 142 NLRB 457.
Thus, of the six employees in dispute, Kai Jensen,
Cole, and Vernon Erickson are excluded from the
unit, while John Erickson , Samuelson , and Susan
Rosenlund are included. Accordingly, the unit con-
sisted of 98 employees.
b. The Union's majority
Under the foregoing findings, the unit consisted
of 98 employees. The General Counsel introduced
639 executed union authorization cards. Of the
cards in evidence, 29 were authenticated by the
direct testimony of the signers. With two excep-
tions, the remainder were authenticated by a hand-
writing expert on comparison with admittedly
genuine signatures (N.L.R.B. v. Economy Food
Center, Inc., 333 F.2d 468, 471 (C.A. 7)) or by the
testimony of employees who either had witnessed
the signing or had received the signed cards from
the signers (Don the Beachcomber, 163 NLRB 275,
fn. 2; Mink-Dayton, Inc., 166 NLRB 604).
cluded in the unit . Dennis Garvey's card is also eliminated because he left
Respondent's employ before the bargaining demand was made
VIKING OF MINNEAPOLIS 1161
The two cards admitted without specific authen-
tication of the signatures were those of employees
Wallace and Schmidtgall. They had been sub-
penaed by the General Counsel, but had replied
that they were unable to appear because of illness.
Citing Northwest Engineering Company, 158 NLRB
624, the General Counsel contends that these two
cards should be counted as valid authorizations on
the testimony of Union Organizer Ninteman that he
received them from employee solicitors in regular
course during the organizing campaign . The deci-
sion in Northwest Engineering was based on the
particular facts, from which the Board concluded
that the "Respondent's prehearing conduct" con-
stituted an admission of the genuineness of the
signatures on the cards in question . No similar
prehearing conduct has been shown in the present
case . Although the matter is not entirely free of
doubt, the Examiner believes that the Wallace and
Schmidtgall cards must be rejected under the
Board 's more recent action in Henry Colder Co.,
163 NLRB 105.This reduces the number of cards
to 61.
The Circumstances of Signing
Respondent concedes the authenticity of the
signatures on the remaining 61 cards and the fact
that they were executed on or before September
29, 1966 , when the Union 's original recognition de-
mand was received . 10 Respondent , however, main-
tains that the cards should not be accepted as a reli-
able indication of the employees' desires because of
evidence in the record which, in Respondent's
words, shows that a substantial number of em-
ployees "signed the cards not to authorize the
Union, but merely to learn more about the Union,
with the knowledge that an election would have to
take place ." For the ensuing reasons, the Examiner
rejects Respondent 's contentions.
The cards are unambiguous designations of the
Union as bargaining representative . At the top, in
very large, boldface, capital letters, appears the
statement : "YES, I WANT THE IAMAW." The
printed text of the cards is as follows: "I, the under-
signed , an employee of hereby authorize the
International Association of Machinists and
Aerospace Workers (IAMAW) to act as my collec-
tive bargaining agent with the company for wages,
hours and working conditions . It is my understand-
ing that I will be invited to join the IAMAW."
Below the signature line appears the following:
"NOTE: This authorization to be SIGNED and
DATED in EMPLOYEE'S OWN HANDWRITING.
YOUR RIGHT TO SIGN THIS CARD IS PRO-
TECTED BY FEDERAL LAW." There follows the
name and address of District 77 IAMAW. There is
nothing on the back of the card. Thus, the card is
one which he who runs may read; there is no room
for misinterpretation or misreading. Even one
filling out the numerous blanks" without reading
the text could scarcely fail to note the prominent
heading: "YES, I WANT THE IAMAW."
In face of a card of this nature, it would take
strong evidence of misrepresentation12 to establish
that the cards were improperly solicited and
secured. James H. Matthews & Co. v. N.L.R.B., 354
F.2d 432, 438 (C.A. 8), cert. denied 384 U.S.
1002. The record contains no such evidence.
Edward Ninteman, the union organizer, testified
that on September 13 he first contacted employee
Joyce Medland.13 He testified as follows:
. I told her in order to have the Machinists
Union represent the people we required at
least 60 per cent of the people to sign cards so
we could ask for bargaining with the employer.
He gave Medland some blank cards to pass out "at
noon hours or on her time and/or after work." A
union meeting was arranged for September 20.
At the union meeting on September 20 Medland,
and perhaps a few other employees, gave Ninteman
some cards which had already been signed. Also,
some additional cards were signed at the meeting.14
Ninteman testified that at the meeting he discussed
the "procedure" for bringing the Union into the
plant. In explanation of the word "procedure," he
said:
Well, the percentage we needed to ask for
representation and as [to] how many people
were working in the plant, and also that if we
had enough of the people sign cards, we would
ask the company to bargain with us by a letter.
At the meeting he also discussed the terms of con-
tracts the Union had with other companies in the
area. He testified that at the second union meeting,
held on September 26, he discussed "practically the
same things as the first meeting" and "told them
that we needed at least 60 per cent of the total em-
ployees in the plant."
Employee Kenneth Nichols corroborated Nin-
teman , stating that at the first union meeting Nin-
teman said "that these were cards for us to sign
denoting that we were interested in the union
representing us." Similarly, employee Lorne
Moodie testified that Ninteman said "[s]omething
to the effect that this card would, if a sufficient
majority were reached, would authorize the union
to represent us as their bargaining agent." Em-
10 All but one were executed before the demand letter was mailed
" The blanks called for the employee's name (to be printed), the date,
address-street , city, and ZIP code; department, shift; phone number; clas-
sification; and signature . Most of the cards in evidence have all items filled
in
's Or coercion, which Respondent does not suggest.
" Medland left Respondent 's employ on November 14. She did not testi-
fy at the hearing.
"The record shows that only 16 cards were signed on September 20.
Ninteman, therefore, was somewhat inaccurate in his recollection that
"there was approximately 15 signed cards handed in and there was also
maybe six or eight more made out at the meeting and given to me at this
meeting "
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee Isal Amundson testified that Ninteman "said
that signed cards authorized us to try bargaining
with the company, otherwise we would have an
election for a union in the plant."
Respondent did not cross-examine any of these
four witnesses concerning the union meetings. It
produced two employees, Hanson and Stanton, who
testified, inter alia, concerning the first union meet-
ing. Their testimony (which is summarized below)
is discredited to the extent that it may be read as
denying that Ninteman informed the employees at-
tending the meeting that a bargaining demand
would be made if a sufficient number of cards were
signed.
The Examiner finds that Ninteman affirmatively
advised the employee solicitors and the employees
who attended the union meetings that the cards
could and would be used as the basis of a bargain-
ing demand though they might also be used to
request an election if Respondent did not honor the
bargaining demand.
Of the 29 card signers called by the General
Counsel, Respondent cross-examined15 8 card
signers as to the circumstances surrounding their
signing and Respondent itself produced only 4 such
witnesses. Respondent relies on testimony by 11 of
these witnesses to invalidate the authorization
cards. Respondent's argument appears to be that:
(1) The purpose of the cards was misrepresented;
(2) the signers did not intend to designate the
Union as bargaining representative; and (3) the
testimony of these 11 witnesses may be taken as in-
dicative of what the remaining card signers would
have said had they been questioned.1e
The following is a summary of the testimony ad-
duced on examination of seven witnesses called by
the General Counsel on which Respondent relies:
Muriel Christopherson first testified that she at-
tended the second union meeting on September 26.
The employees were there "told that by signing the
card [they] would be giving the union permission to
come and talk for [them], talk to [them]." After
testifying , in answer to a leading question , that Nin-
teman said that there would have to be an election
before the Union could represent the employees,
she proceeded as follows:
Q. (By Mr. Jacobowski) When you signed
the card , were you told by the union represen-
tative that an election would have to take place
before the Union would be authorized to
represent the employees?
A. Well, I suppose I should say that is the
way I understood it. I couldn't say that he said
it in so many words.
On redirect examination the witness said that Nin-
1-1 the General Counsel 's objection , the Examiner allowed Respon-
dent free scope of cross-examination of card signers produced by the
General Counsel.
16 I n its brief, Respondent says "Fully one third of those who testified
gave evidence indicating why their card should not be counted If we apply
teman indicated that "He couldn't talk to us until
he had 60 percent." She conceded that they were
not told that the cards would be used only for an
election. She said that she understood that signing
the card did not "obligate" her in any way, and ex-
plained that she took that to mean that she was not
"automatically a union member" upon signing the
card. She further testified that she had read the
card fully before going to the meeting and before
signing.
Darlene San signed her card at work. Her initial
testimony on cross-examination was:
Q. Were you told what signing the card
meant?
A. You mean what I was signing when I
signed it?
Q. Yes.
A. Yes, for the Union. I was told it was a
union card. Of course, it says it on it.
Pressed further by Respondent's counsel, San
proceeded:
Q. Was it explained to you what signing the
card meant?
A. Oh, you mean like if it was for getting
more information, or if it was to have a vote
for the union?
A. That is a good question. Well, I figured it
was for-no, see, they gave me the card and
asked me if I wanted to sign a card for the
union . I read it over and said yes. I can't re-
member anyone explaining anything to me.
Q. Were you told this card was to authorize
an election?
A. Let's put it this way, I was told that if we
got enough that were interested in the union,
we would have an election.
She stated emphatically that it was not Ninteman
who spoke to her; that the person who asked her to
sign did not say that the card would be used only
for an election-indeed, the person involved did
not even use the word "election." The nub of San's
testimony was: ". . . about all I was really told, she
asked me if I wanted to sign the union card, and she
handed me the card and I read it over and said
O.K."
Jennie Peterson testified that she signed her card
at work at the request of "just somebody in the
plant.... it wasn 't a union member." Her
testimony continued:
Q. Were you told what signing the card
would mean?
the same percentage to the balance of the cards that General Counsel
sought to introduce by means other than the direct testimony of the in-
dividual card signer , this strongly suggests that a sizeable number of these
other employees from whom no testimony was heard , might well give
testimony similar to the eleven."
A. Yes and no.
VIKING OF MINNEAPOLIS 1163
vote later whether it would really be in or not."
Mrs. Young then testified to having heard other
employees speak of the advantages of unionization
* * * * * in "so much more bigger wages and that things
A. Well, I was told if I signed the card, the
union could come in ... and state their views.
Q. . . . Were you also told that the card was
for an election?
A. Well, yes, I suppose.
Q. Was anything told you about an election
or with respect to an election?
A. Not at the time . It was, that way they
would have a chance to come in and vote
union in or union out. That is all I was told.
She "understood that they would have a chance to
come in and vote an election one way or another,
but, I didn 't mean that , I mean-how would I say
that , when an election came a person could vote as
they saw fit ." No specific person told her what the
card meant or coulpd be used for. She had read the
card and was alone when she signed it.
Ethel Young signed her card at work but could
not identify any person who asked her to sign.
When asked if anybody explained to her what sig-
ning the card meant , she replied:
A. Well, I suppose they did. I can't pinpoint
it right down but I understood what the card
meant.
A. I understood by signing the card that it
was more or less a permission for the union to
approach the company , that they had to have
permission to do that and that is the permission
that I was signing for them to do this.
Then came the following model of ambiguity:
0. To approach the company or to ap-
proach the employees of the company?
A. I suppose it would be the people, yes.
* * * *
A. Well, to come in . I really don't un-
derstand all this myself, but it was a permission
for them to , a vote for permission for them to
come in and try to start a union , I guess.
A. . . . I understood before there could be a
union in there there had to be so many of these
white cards signed , and, well , I didn't know
who they were going to approach, I suppose
the people, tell them about it, what they had to
offer.
She "didn 't feel like [ she] was voting for the union
because [she ] understood there would be another
would be more fair.... There was just a lot of talk
about if there was a union there would be higher
wages and things would be more fair, because it
had been unfair." She did not remember specifi-
cally having been asked to sign the card, but stated
that she signed-
... because I understood that I would learn
something about the union, whether it was to
be better or not, because I did not know and I
just couldn't, I didn't feel like I could just take
everybody's word for it because all you would
hear would be the prejudiced side, you know, I
wanted to know myself and I wanted to know
more about it. I mean I wasn't really interested
but it was there and I thought, well, I might as
well sign it and learn more about it.
... It was just sort of like an understanding
that we were signing the card to give the union
permission to approach, that is all. I can't word
it any other different way because I don't know
how to do it.
On recross-examination, she concluded as follows:
Q. (By Mr. Jacobowski) When you were
referring that signing the card gave the union
permission to approach ... do you mean per-
mission to approach the company to represent
you or permission to approach the employees
to explain and tell more about the union?
A. I think it was the employees.
THE WITNESS : I really didn 't think too much
about it.
Alta Kreuger testified that she understood the
cards were "just a survey to see how many would
be interested maybe in listening to what the union
had to offer us, but it held us not responsible
whether we were for or against ." She did not attend
any union meeting before September 27, when she
signed her card . No union organizer had told her
what the card meant and she heard "very little"
general talk in the plant concerning the cards. Her
impression as to what signing the card meant came
from an unidentified employee , who she was not
sure was "connected with the union ." She gave the
executed card to somebody of her "own free will."
Marjorie Sternhagen , whose card was signed on
September 21, had not attended the union meeting
on September 20. She thought that signing the card
would bring about an election . She had heard about
the election from "a number of" employees. When
1164 DECISIONS OF NATIONAL
she received the card, she read it and put it away,
and then signed it several days later.
David Jensen understood that signing the card
meant that he "was willing to vote in an election if
it was held." He did not gain this impression from
anybody on behalf of the Union but simply "from
the shop." He did not recall overhearing anybody
say what the purpose of signing the card was, and
he read it before signing.''
Respondent produced four card signers, whose
testimony is summarized as follows:
Timothy Hanson testified that he thought "sign-
ing the card would bring an election." He was told
this "[n]ot by anybody representing the union,
[but] by certain people in the plant that were for
the union." When asked what Ninteman, the union
organizer , had said at, the union meeting on Sep-
tember 20, Hanson said:
Well, he quoted, about all he did was quote
what would be or what other employees in
other establishments were making as compared
to our wages.
Hanson , who is 19 years old, testified that beer was
served at the union meeting; that he drank "Quite a
lot.... About a pitcher, maybe a little less" and
that he felt "effects from the beer." The record
shows, however, that he did not sign his union
authorization card until the next day, thus negating
Respondent's apparent intimation that Hanson
signed under the influence of liquor.'g
On cross-examination he was asked whether he
had been told that an election was the only purpose
for the card, to which he replied: "No, but I was
not told any other reason." He further testified that
some employees left the meeting during the first 10
or 15 minutes "because they were against the union
from the start," but that he had remained.
Richard C. Hessburg, 18 years old, did not attend
any union meetings . He testified that he signed a
card because "at first [he] was told" by employee
Nichols that "it was just for more information
about the union ." On cross-examination , he stated
that he was not told that the card could not be used
for any purpose other than an election.
Nina B. Stanton, who has been an office em-
ployee and thus outside the unit since February 6,
1967, signed her card at the first union meeting on
September 20. On direct examination she testified
as follows:
Q. Why did you sign a card?
A. Because the card enabled us at a future
date, if we so desired, to vote for the union.
Q. Was this told to you by a union represent-
ative?
'r Respondent cross -examined only one other card signer produced by
the General Counsel . The entire cross-examination of that witness, Ina
Lipke, was as follows:
0 (By Mr. Jacobowski ) Were you asked to sign the card by any-
body on behalf of the union'
LABOR RELATIONS BOARD
A. That is what I understood.
Q. (By Mr. Jacobowski) Were you told
anything with respect as to when the union
could come in the plant and represent you em-
ployees?
A. No, it was just supposed to be within, I
would say, three months or so.
Q. What was supposed to be within three-
A. (Interrrupting) The election was sup-
posed to be within three months or so.
Q. Were you told whether or not the cards
had any other purpose?
A. No, except that they would enable us to
know more about what the union would do for
us.
She also testified that beer was served at the meet-
ing; that she drank "two large glasses"; that she
"felt carefree"; and that she left "a little early." She
said she had not thereafter tried to have her card
returned because "we were led to understand that
we could, at a later date, vote whether or not we
wished to join a union." She was never told that the
card could be used only for an election, but "was
never told anything other than that." On further
cross-examination, she testified as follows:
Q. Did Mr. Ninteman tell you that the card
would not be used for any other purpose but
for an election?
A. Yes.
Q. He did tell you that?
A. Well, it was understood. I don't know if
he came right out and said it.
When asked by the Examiner what Ninteman had
actually said at the meeting, the witness said he had
told the employees they were being underpaid and
that if they joined the Union they would receive the
higher wages paid by comparable companies.
After conceding that she had read the card be-
fore she signed it, her testimony concluded as fol-
lows:
Q. [By General Counsel] Did you ask Mr.
Ninteman any questions regarding the card?
A. I thought that I fully understood what
was written on the card.
Q. (By Mr. Jacobowski) Do you think dif-
ferently now?
A. No, I signed willingly
MR. JACOBOWSKI No further questions
But his beer drinking probably dulled his attention and affected his
memory
VIKING OF MINNEAPOLIS 1165
A. Yes, I certainly do, and I am very sorry
that I signed it.
Bettie von Stocken testified that she signed her
card " Because it was presented to me and I more or
less had to sign the card, I felt, or should sign it."
She said she had been told by employee solicitors
that " signing the card meant only that I was in-
terested in finding out what the union had to do for
me, both wages and jobwise." She testified further
as follows:
Q. [By General Counsel] No person or per-
sons told you that the card would not be used
to make a bargaining demand upon the com-
pany?
Well, by signing the card, I assumed that
maybe something, the company would be
asked something or told. I thought that you
would, no doubt, go directly to the company.
Q. In other words, by signing the card, you
thought that the company might be asked to
bargain on behalf of the employees?
A. Well, that's what I had heard other peo-
ple talking about.
However, on further questioning by the General
Counsel, the witness said she had been told that
"there would be a vote" before the Union could
ask the Company to bargain. After she
acknowledged that she had not mentioned a "vote"
in her direct testimony , the cross-examination con-
tinued as follows:
Q. Isn't it your testimony that you were told
that the card was to find out more information
about the union?
A. But it did not mean that I was in favor of
the union or that I was going to vote for the
union , but that it would maybe come up and
that there would be a vote, that that just meant
that I was to get more information from the
union.
She stated that her opinion as to what the card
meant was derived from "many people." She had
not attended either of the two union meetings held
before she signed.l9
Where, as here, a majority of the unit employees
have signed " simple and unequivocal authorization
cards ... it is settled that a signed card is not in-
validated by an employee's misconceptions of its
operative effect . Misrepresentations by solicitors
that the securing of a Board election was the only
purpose of the cards must be established to in-
validate such cards." Henry I. Siegel, Inc., 165
NLRB 493; Southbridge Sheet Metal Works, Inc.,
158 NLRB 819, enfd. 380 F.2d 851 (C.A. 1). In
the absence of such misrepresentations, an em-
ployee's subjective understanding or afterthoughts
cannot serve to invalidate unequivocal authoriza-
tion cards. Colson Corp. v. N.L.R.B., 347 F.2d 128,
135 (C.A. 8), cert. denied 382 U.S. 904, Joy Silk
Mills, Inc. v. N.L.R.B., 185 F.2d 732, 743
(C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v.
Winn-Dixie Stores, Inc., 341 F.2d 750, 755 (C.A.
6), cert. denied 382 U.S. 830.
As the foregoing summary of the pertinent
evidence shows, Respondent established at most
that a few employees may have believed that some
sort of "vote" or "election" would be held before
the Union became the authorized bargaining agent
for the employees and a few employees thought
that signing a card was for the purpose of securing
further information, of an unspecified nature, from
the Union. Of the small minority of card signers
questioned by Respondent, not one credibly
testified that he had been expressly advised that the
sole purpose of the card was to secure a Board-con-
ducted election. In most instances the employees'
direct testimony, without leading questions, nega-
tived any misrepresentation by either Ninteman,
the union organizer, or by employee solicitors.20
On all the evidence, including the demeanor of
the witnesses, the Examiner finds and concludes
that, in the recent words of another Examiner, ap-
proved by the Board (J. Taylor Mart, Inc., dlbla
Taylor's I.G.A. Foodliner, 166 NLRB 329, 333):
The cards are so unambiguous, and show so
clearly an unqualified designation of authoriza-
tion to represent the employees for the pur-
poses of collective bargaining, that it would
require a stronger showing than is here made
to establish that they were executed merely for
the purpose of obtaining a Board-conducted
election.
It may be added that, even if we were to
eliminate the cards of the 11 witnesses examined by
Respondent, together with those of Wallace and
Schmidtgall, the Union would still have a majority;
i.e., 5021 in a unit of 98, as found above.
19 Respondent also made an "offer of proof' that if employees Wallace
and Schmidtgall were to appear , they would " give testimony as to how they
signed the cards similar to some of the testimony I have already elicited
from employees , namely, that they signed cards only for an election."
Counsel did not indicate the basis for his offer of proof Nor did he request
an opportunity to try to secure their testimony , despite the fact that early in
the hearing he advised the Examiner that it might become necessary later
to request some arrangements to take the testimony of witnesses who were
then unable to appear because of illness
40 The Examiner has taken note of court decisions cited by Respondent.
For the purposes of this Decision , it is sufficient to note that all the deci-
sions cited are either factually distinguishable from the present case or, in
any event , do not reflect the Board 's views. In the one Board decision cited
by Respondent , Englewood Lumber company, 130 NLRB 394, the majority
of the panel found misrepresentations by the card solicitors . It may also be
noted that none of the members of the panel in that case is now a member
of the Board Board law has developed considerably since Englewood. See
Amalgamated Clothing Workers ( Sagamore Shirt Co.) v N L.R. B., 365 F 2d
898 (C A.D.C )
Although the General Counsel was probably correct in contending that
evidence of the employees' subjective state of mind was irrelevant, Aero
Corp, 149 NLRB 1283 , 1291, the Examiner allowed Respondent broad
scope of cross-examination to enable it to make a record in the event judi-
cial review were to be sought See Bauer Welding and Metal Fabricators,
154 NLRB 954, reversed in part 358 F 2d 766 (C A. 8) The Examiner
here expresses no opinion as to whether the evidence adduced by Respon-
dent would be sufficient to invalidate any of the authorization cards under
any judicially enunciated standards
21 This also excludes the cards of Kai Jensen and Dennis Garvey
1166 DECISIONS OF NATIONAL
In its brief, to support its denial of the Union's
majority, Respondent argues that, although counsel
cross-examined only 8 of 29 card signers produced
by the General Counsel, the testimony of the 11
card signers who were examined should be taken as
representative. Thus, says Respondent, since the
testimony of 11 of the 32 card-signing witnesses
casts doubt on the validity of their cards as bargain-
ing authorizations, it should be assumed that about
one-third of the card signers who did not testify
"might well give testimony similar to the eleven."
To justify such projection, Respondent relies on the
General Counsel's failure to adduce evidence of the
circumstances surrounding the employees' execu-
tion of the authorization cards.22 Circuit Judge
Feinberg has provided a cogent and complete
answer in N.L.R.B. v. Niskayuna Consumers
Cooperative, Inc., 376 F.2d 260 (C.A. 2):
. As to the duty of the Board or the General
Counsel to take the laboring oar from respon-
dent, we need only point out that the General
Counsel called 17 of Niskayuna's employees as
witnesses. Although they were thus available
for cross-examination, Niskayuna attacked the
validity of only five cards. Given the skimpy
evidence of coercion or misrepresentation by
the Union, we accept inaction of Niskayuna's
attorney below as a judgment that it would
have been futile to try to prove that the other
employees knew of the alleged threat to Mrs.
Lowery and were intimidated by it or had been
duped into signing cards....
In the present case , Respondent cross-examined
only 7 of the 29 card signers called by the General
Counsel. Accordingly, the Examiner would find
that the Union represented a majority even if the
evidence had been sufficient to cast doubt on the
validity of the 11 cards specifically questioned by
Respondent.
The Examiner thus finds that on September 29,
1966, when the first bargaining demand was
received by Respondent, the Union represented a
majority of the employees in the appropriate unit.
c. Respondent's asserted good faith doubt
At the hearing, Respondent asserted that it had a
good-faith doubt of the Union's majority when the
recognition demands were made. In defense of its
failure to bargain on demand, however, Respondent
places major reliance on the fact that the Union
filed a representation petition simultaneously with
making its original bargaining demand. Respondent
asserts that it was advised by its labor consultant at
22 Respondent says, inter aha
The fact that this counsel for the employer would not go into general
unprepared questioning of these other witnesses should not be prejudi-
cial . The General Counsel should be himself interested in deter-
mining as accurately as possible whether or not the employees in sign-
ing cards, truly authorize a Union to represent them or not We have
no evidence that General Counsel even investigated this during the
LABOR RELATIONS BOARD
that time that the filing of the petition made the
bargaining demand academic. It also relies on its
agreement for a consent election to support its as-
serted absence of bad faith.
As a factual matter, the record establishes that
Respondent did not have any good-faith doubt of
the Union's majority when the bargaining demands
were made. The Company did not even answer
either of the Union's two demand letters. It asserted
a good-faith doubt as to the Union's majority status
for the first time at the hearing. On questioning by
Respondent's counsel, Kleiman testified as follows:
Q. When you received the letter and the
petition, did you know whether or not the
union represented a majority?
A. No, I did not.
0. Did you have any reason to doubt that
they represented a majority?
A. Yes.
Q. Why?
A. Well, when I became aware of the activi-
ty there were a couple of people related to su-
pervisors and at least on one occasion directly
to me, that they didn't want a union and if we
had one they would be darned if they would
join it. In other words, if they were forced to
join a union they would leave.
Q. Did any employee come to you-
Q. -and state they wanted a union at that
time?
* * *
A. Not to me directly but several of the su-
pervisors have reported to me that some peo-
ple had very definitely wanted a union.
Had this been the sum total of the relevant
evidence, it might be held that the General Counsel
had failed to sustain his burden of proving that
Respondent did not entertain a good-faith doubt as
to the Union's majority on September 29, when the
original bargaining demand was made. Aaron
Brothers Co. of California, 158 NLRB 1077; John P.
Serpa, Inc., 155 NLRB 99, 100, enforcement de-
nied 376 F.2d 186 (C.A. 9).
But on November 3, after Supervisor Johnson ad-
mittedly became full aware "that many employees
favored the union, ' Ninteman again wrote to
Respondent as follows:
course of the investigation and certainly he exhibited no initiative in
trying to bring forth positive testimony in this regard during the trial.
It is to be presumed that the Regional Director and the General Counsel
met their statutory investigative obligations as conscientious public ser-
vants It may be noted that at no time during the hearing did Respondent's
counsel request production of the pretrial statement given to the Board by
any witness for the General Counsel
VIKING OF MINNEAPOLIS
After examining [ the Excelsior ] list and
checking it against the authorization cards
which have been submitted to us by your em-
ployees, we again wish to advise you that a
majority of your production and maintenance
employees has authorized and designated [the
Union] as their bargaining representative in all
matters regarding wages, hours of work, work-
ing conditions , and other conditions of employ-
ment.
Should there be any good faith doubt on
your part of the Union s majority status, please
advise and the Union will immediately submit
proof of our majority status to some mutually
agreeable impartial third party ....
This will serve as the Union 's request that
the Company recognize and bargain collective-
ly with the union.... Please treat this request
for recognition as the majority representative
of the employees in said unit as a continuing
request .... We stand ready and willing to
meet with your designated representatives at
an early date mutually agreeable to the parties,
to conclude such negotiations.
Again Respondent made no reply or
acknowledgment . Its admitted knowledge that
"many employees favored the Union ," together
with the Union ' s statement that it had checked its
cards against the list of unit employees provided by
Respondent and Respondent 's refusal of the card
check offered by the Union , certainly negate the
existence of any good -faith doubt as to the Union's
ma ority status.
At no time has Respondent suggested that it en-
tertained any doubt of the Union's majority
because of the means by which authorizations were
solicited . The record is barren of any suggestion
that Respondent entertained " a good faith doubt as
to the reliability of the authorization cards" where
it ignored the bargaining demands . Colson Corp. v.
N.L.R.B ., supra, 135.'
Not having communicated to the Union any
good-faith doubt as to the claimed majority, "the
Company may not now persuasively claim that its
refusal to bargain was based on a good -faith doubt
of the Union 's majority status." N.L.R.B . v. Fosdal
Electric, 367 F.2d 784 ( C.A. 7). "When adequate
proof is available in a reasonable manner , its offer
cannot in good faith be refused ." N.L.R.B. v.
George Groh and Sons, 329 F.2d 265, 269 (C.A.
10); N.L.R . B. v. Elliott-Williams Co., Inc ., 345 F.2d
460, 464 (C.A. 7); N.L.R.B. v . Nelson Manufactur-
ing Co., 326 F .2d 397, 399-400 (C.A. 6); N.L.R.B.
v. Witbeck , 382 F.2d 574 (C.A. 6).
The Examiner finds that Respondent 's refusal to
bargain on request was not grounded on any good-
faith doubt as to the Union 's majority.
29 Explaining its failure to adduce additional evidence as to the circum-
stances surrounding the signing of union cards, Respondent says in its brief-
"An employer's attorney in preparing his case is under a severe handicap,
lest his very act of preparing the case might be interpreted or regarded as
1167
Respondent's contention that the Union's bar-
gaining demands were "conditional" because the
first one was made simultaneously with the filing of
a representation petition is virtually identical to the
time-worn argument that the Union in effect gave
Respondent a choice of an election or bargaining.
This argument has been frequently rejected by the
Board with judicial approval. N.L.R.B. v. Fosdal
Electric, supra, 367 F.2d 784; Arkansas Grain Cor-
poration, 163 NLRB 625, and cases cited in TXD;
Colson Corp. v. N.L.R.B., supra; cert. denied 382
U.S. 904; Irving Air Chute Company, Inc., 149
NLRB 627, 628, enfd. 350 F.2d 176 (C.A. 2).
It is no defense to the present refusal-to-bargain
charge that Respondent may have in good faith re-
lied on the advice of its then labor consultant that
the Union's representation petition rendered the
bargaining request "academi." For it is well settled
that "good faith is not available as a defense to a
charge of refusal to bargain where the refusal is
based upon an erroneous view of the law." Old
King Cole, Inc. v. N.L.R.B., 260 F.2d 530, 532
(C.A. 6).
Finally, in the representation proceeding, the
Board found that Respondent had engaged in con-
duct interfering with the conduct of a proper elec-
tion. Although the issues were, as a matter of fact,
relitigated before the Examiner in the present
proceeding, in connection with the alleged viola-
tions of Section 8(a)(1), no evidence was
developed as to any facts which were not known to
the Regional Director or set forth in Respondent's
exceptions to the Board. As recently said in Banco
Credito Y Ahorro Ponceno, 167 NLRB 397, 398:
It is well established that, in the absence of
newly discovered or previously unavailable
evidence, a respondent is not entitled to
relitigate in a Section 8(a)(5) proceeding is-
sues which were or could have been raised in a
related representation proceeding.
See also, e .g., American Life and Accident Insurance
Company of Kentucky, 158 NLRB 260, 260-261,
264; Carolina Natural Gas Co., 157 NLRB 674; The
Lord Baltimore Press, Inc., 151 NLRB 236, enforce-
ment denied 370 F.2d 397 (C.A. 8).
So far as the Examiner is aware, the Board has
not limited the scope of this rule by reference to
the type of issues involved or the type of 8(a)(5)
proceeding to which it is applicable. Indeed, in
Heights Funeral Homes, Inc., 159 NLRB 723, foot-
note 1, the Board declined to decide whether, in
the words of the Trial Examiner, "the only unfair
labor practice which can be said to be related to a
representation case [within the purview of Section
102.67(f) of the Board's Rules and Regulations] is
the subsequent 8(a)(5) in which the duty to bar-
gain , raised by certification, is enforced."
constituting an interference with the employees " The clear implication is
that Respondent did not have prior information as to the circumstances
under which cards were signed
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conclusiveness of the Board's prior decision
is unaffected by the facts that no hearing was held
in the representation proceeding (LTV Elec-
trosystems, Inc., 166 NLRB 938; Capitan Drilling
Company, Inc., 167 NLRB 144) and that the
representation petition has since been withdrawn
(Bryant Chucking Grinder Company, 160 NLRB
1526, TXD).°4
Even if it might be said that the General Counsel
effectively waived his right to rely on the decision
in the representation case, it would appear that,
while the Board may, of course, reconsider that
decision, the Examiner has no similar authority. See
Golden Age Beverage Co., 167 NLRB 151; Capitan
Drilling Company, supra, 167 NLRB 144, 145:
The Trial Examiner has no authority to
review the Board's final disposition of the
representation issues or to question its conclu-
sion on the existing record. The Respondent is
free, in exceptions to this Decision, to request
the Board to reconsider its conclusions, and in
the event of an unfavorable order by the Board
may request review in an appropriate court of
appeals.
Compare N.L.R.B. v. Southbridge Sheet Metal
Works, Inc., supra, 380 F.2d 851 (C.A. 1).
In the representation proceeding, the Board
found that Respondent interfered with the election
by granting promises of benefits to influence the
election and by illegally posting and maintaining
no-solicitation and no-distribution rules. Even if it
were to be found that Respondent's conduct did
not constitute substantial violations of Section
8(a)(1), the Board's decision in the representation
case would, nonetheless, warrant a finding of bad-
faith refusal to bargain in an effort to undermine
the Union's majority. As said in Aaron Brothers
Company of California, 158 NLRB 1077, 1079, "an
employer's bad faith may also be demonstrated by a
course of conduct which does not constitute an un-
fair labor practice." See George Groh and Sons, 141
NLRB 931, enfd. 329 F.2d 265 (C.A. 10), holding
that an employer had violated Section 8(a)(5) even
though all allegations of violation of Section
8(a)(1) and (3) were dismissed. The Examiner, af-
firmed by the Board, there said (pp. 939-940):
While accompanying unlawful conduct may
render more discernible an unlawful motive, its
absence is but a factor, and not a preclusive
one, to be weighed in a "discriminating analy-
sis and appraisal of all the relevant evidence."
The absence of good faith, then, may be
manifested as well by attitudes and conduct
demonstrating a rejection of the collective-bar-
Y' See N L R B v Southbridge Sheet Metal Works, supra , Amalgamated
Clothing Workers [ Sagamore Shirt Co) v N L R.B , 365 F.2d 898
(C A D C) But compare United Insurance Co v N LRB , 272 F 2d 446
(CA 7)
t' Kleiman conceded that they were also broader than those contained in
the employee handbooks at other Telex plants
11 The Examiner also finds, as claimed by the General Counsel , that the
gaining concept as by more overt , readily
discernible Section 8 ( a)(1) and 8(a)(3) con-
duct potentially more immediately destructive
of the Union 's majority status . The evidence in
the instant case establishes no unlawful Section
8(a)(1) activity , but based on other record
evidence I am convinced and find that the
Respondent 's refusal to recognize and bargain
with the Union was motivated not by a good-
faith doubt of the Union 's majority status but
by a rejection of the collective -bargaining prin-
ciple.
See also N.L.R.B. v . Tom's Supermarket , Inc., 385
F.2d 198 (C.A. 7); N.L.R.B. v . Clark Products, Inc.,
385 F.2d 396 (C.A. 7).
Since the Board has definitively found that in the
preelection period Respondent engaged in conduct
interfering with a proper election , the Examiner
concludes that Respondent 's failure to honor the
Union 's continuing bargaining demands was calcu-
lated to gain time within which to undermine the
Union 's majority . Accordingly , the Examiner holds
that Respondent violated Section 8(a)(5) of the
Act by failing to recognize the Union and bargain
collectively on and after September 29.
2. Unilateral action
The complaint, as amended at the hearing, al-
leges that Respondent violated Section 8(a)(5) by
taking unilateral action affecting wages and other
terms and conditions of employment on and after
October 11, 1966.
On October 11, 1966, Respondent posted no-sol-
icitation and no-distribution rules on the bulletin
board at the plant. While Respondent maintained
that there had previously been no-solicitation rules
in effect at the plant, no employees corroborated
this fact. The employees questioned on the matter
denied having had any knowledge thereof and
testified concerning solicitations which had been
made previously with the knowledge and at least
acquiescence of supervisors. In any event, Respon-
dent concedes that the rules posted on tober 11
were broader than those it claims were inOc existence
previously.21 The written rules were prepared by
Respondent's labor consultant and were posted on
his recommendation, specifically because of the
union campaign.26 The posting of the no-solicitation
and no-distribution rules, therefore, constituted a
change in working conditions.27
On January 4, 1967, a notice to "All Hourly Em-
ployees" was posted announcing "a 10 cents per
hour general increase effective January 3, 1967."
rules were removed from the Viking bulletin board within a few weeks after
the election and solicitations have since been allowed, apparently without
the necessity of securing specific approval of management
!r In the representation proceeding very scant attention appears to have
been given to whether the rules posted on October I 1 were new The facts
stated in this paragraph were developed at the present hearing
VIKING OF MINNEAPOLIS 1169
All nonunit employees and all unit employees hired
after the eligibility date received the increase when
it was announced . However , at that time the in-
crease was not paid to members of the unit here in-
volved. These employees were told that, because of
the pendency of the representation proceeding, the
Company was prohibited from granting wage in-
creases to unit employees. They were told, how-
ever , that , upon final conclusion of the representa-
tion proceeding , they would receive the increase
retroactively to January 3.
On April 24, 1967, the unit employees were paid
the 10-cent-per-hour raise retroactive to January 4.
It appears, however, that the retroactive payment
was made solely on the basis of straight time,
without overtime premium where applicable.
On May 4, 1967, Respondent posted an an-
nouncement that in September its Magnecord
operation would be moved from Tulsa, Oklahoma,
to a new plant in Blue Earth , Minnesota , about 100
miles away. The Viking operation would then also
move to Blue Earth , commencing in October and
ending in December . The announcement advised
Viking employees of the manner of applying for
employment at Blue Earth if they so desired and of
such matters as the notice of termination and ter-
mination pay which would be given.
It also appears that since September 29 Respon-
dent has changed the company carrying the em-
ployees' insurance.
Respondent concedes that it did not advise, con-
sult, or bargain with the Union concerning any of
the matters discussed above. 28 Since it has been
found that Respondent was legally obligated to
recognize and bargain with the Union on and after
September 29, 1966, its unilateral action in the
respects mentioned constituted violations of Sec-
tion 8 ( a)(5), and the Examiner so holds. Con-
solidated Rendering Company, d/b/a Burlington
Rendering Company, 161 NLRB 1, footnote 1.
C. The Alledged Violations of Section 8(a)(1)
1. The Delco Department wage increases
The complaint alleges that:
On or about September 23, 1966, Respon-
dent, by its supervisors Ansel Kleiman , Harlee
Anderson and Jim Ryan , granted its Delco De-
partment employees a wage increase in order
to induce said employees to refrain from
becoming or remaining members of the Union
or giving assistance or support to it.29
Although Respondent admits the allegation that
it "granted its Delco Department employees a wage
increase," the record is clouded as to this fact.
Counsel for the General Counsel introduced into
evidence a letter addressed to him by Respondent
on December 7, 1966, identifying 10 employees "in
the Delco Department who received a general in-
crease ... [of] 10 cents per hour ... initiated on
20 September 1966." However, the General Coun-
sel also introduced a summary of hours worked by
Delco Department employees from July 1 through
November 15, 1966. This summary, prepared by
Respondent's payroll clerk,30 lists 11 employees in
the Delco Department as of September 19, with the
number increasing to 15 by September 26.31 Of the
11 employees listed as of the week of September
19, only 6 received raises on or about September
20. Conversely, of the 10 employees named in
Kleiman's letter as having received raises on Sep-
tember 20, 4 were not listed in the summary of
hours worked by Delco employees and were not
classified as Delco Department employees in a list
of employees as of September 29. When questioned
concerning the discrepancies, Tape Department Su-
pervisor Gerald Johnson testified that the only
reason four of the Delco employees who had
received raises on September 20 did not show up
on the Company's record was that they "were not
employed at the time, at the time of the ... Sep-
tember 29 demand by the union." That is true as to
one (Dennis Garvey), but the remaining three
(Brechka, Siegmund, and Donna Utech) are shown
on the eligibility list and identified as being in the
Tape Department in the list of employees on Sep-
tember 29.32 Employee Nichols mentioned three
other employees who had worked in the Delco De-
partment during the summer, but presumably they
had left Respondent's employ before any of the
events here involved, since their names do not ap-
pear in any of the exhibits.
A sine qua non of the General Counsel's position
is Respondent's knowledge of the union campaign
before initiation of the wage increases. Unfortu-
nately, the record is also confused as to the timing
of the increases. Nichols, a witness for the General
Counsel, stated that he was told of the raise on Sep-
tember 21, "[t]he day I received it." September 21,
1966, was a Wednesday. According to Kleiman, the
'" The General Counsel concedes that the decision to move was
economically motivated
rb This allegation was included in the Union 's objections to the election.
However , it was dismissed as relating to events predating the filing of the
representation petition.
3° Without objection , the General Counsel introduced several summaries
of data from Respondent 's records through Respondent 's president, who
was originally called by the General Counsel under Rule 43 ( b) of the
Federal Rules of Civil Procedure The payroll clerk did not testify Kleiman
was not examined as to the method of preparation of the summaries or as to
any discrepancies within the summaries or between the summaries and
other evidence.
31 One of these employees, Donna Wenich , was apparently out sick dur-
ing both the weeks
ar The Delco operation is conducted in a separate room and is apparently
shown as a separate department in Respondent 's books However, em-
ployee Nichols at one point testified. "I was in the tape department, but I
don't know if it was considered a department, but they called it Delco."
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's pay week runs from Wednesday
through Tuesday , with payday on Friday for the
week ending the prior Tuesday.33
Kleiman testified that he believed the Delco in-
creases first covered the period September 13
through 21 , and was paid on Friday , September 23.
However , the Company 's books seem to record the
increases on September 20, and in a letter to coun-
sel for the General Counsel dated December 7
Kleiman said , "The general increase was 10 cents
per hour and initiated on 20 September 1966."3a
Kleiman conceded that this letter "apparently"
meant that the raise was effective on September 20,
although he had previously indicated that the Sep-
tember 20 date was probably "the time [the payroll
clerk] entered it in her book ." Respondents brief
says " it was made effective on the payroll starting
September 20." In cross-examining Kleiman, the
General Counsel adduced the evidence that, in a
letter dated January 27, 1967, Lloyd M . MacAloon,
Respondent 's labor consultant at that time, had
referred to "wage increases to several employees
on or about September 22."
Johnson testified that he first learned of the
union organizational activity "about after 4:30
p.m." on September 20, when an antiunion em-
ployee informed him that there was to be a union
meeting that evening . Johnson was not questioned
as to whether or when he passed this information
on to Kleiman or to Harlee Anderson or Jim Ryan,
the other two supervisors who the complaint alleges
were involved in the Delco increases . Anderson and
Ryan did not testify . Kleiman testified that, while
he could not recall precisely when the increases
had been announced , he was sure that he had ap-
proved them several days before they a ppeared in
the paychecks . He further "emphatically " denied
having had any knowledge of the Union s organiz-
ing campaign when he approved the increases.
Although the evidence is confused , the Examiner
finds that the wage increases were announced and
made effective on September 21. But the Examiner
further credits Kleiman 's statement that the deci-
sion to grant the increases had been reached some-
time before it was announced and his denial that he
knew of the Union 's organizational activities when
he approved them.
The Examiner 's conclusion that the September
21 increases were uninfluenced by the union cam-
paign is based in part on the essentially negative na-
ture of the General Counsel 's position.
In cross-examining Kleiman , the General counsel
elicited the fact that in a letter dated January 26,
1967, Lloyd MacAloon, Respondent 's then labor
consultant , had said that "the wage increases to
several employees on or about September 22, was
a'' A summary of hours worked by Delco employees in the summer and
fall of 1966, prepared by Respondent's payroll clerk, is broken down by
weeks dated on Mondays. These dates, appearing as the headings in the
chart , seem to denote the end of the weeks reported
"Actually, according to the summaries of Respondent 's books in the
merely part of the Company's previously an-
nounced policy to continue the merit reviews in in-
creases to employees as part of their 30-day, 3-
month, and 6-month policy and program." The
Viking policy referred to calls for a review of each
employee's performance when he has worked 30
days . If he is not granted an increase then, he is
reviewed again in 90 days. Thereafter, an em-
ployee's performance is reviewed every 6 months.35
The General Counsel argues, and the record
bears him out, that several of the employees
granted increases on September 21 had received in-
creases less than 6 months previously. For his part,
Kleiman , in effect repudiating MacAloon 's letter,
testified that the 30-day, 3-month, and 6-month
review was only part of Viking 's total wage policy.
He said that there was considerable flexibility as to
additional increases and increases had previously
been granted to reward both individual and group
performance. He explained his inability to specify
prior departmental increases by the short time he
had been with Viking. However, the record clearly
establishes his contention that the 30 -day, 3 -month,
and 6-month program was not an inflexible limita-
tion on wage increases. For example , employee
Brechka , one of the Delco employees here in-
volved, had been hired on October 12, 1965. She
received her initial 30-day increase in the amount
of 10 cents on November 16, 1965. Thereafter, and
before the Union appeared on the scene, she
received 5-cent raises on December 21, 1965, and
March 1, 1966, and then 10 cents on April 28,
1966. Her raise on September 21 was 10 cents.
Florence Utech was hired on January 5, 1966;
received her 30-day raise in the amount of 5 cents
on February 8 and then another 5 cents on March
1. Her raise in September was 5 cents. Employee
Hessburg was hired on June 22. He received a 10-
cent raise on August 16, which did not conform to
the 30-day, 3-month pattern called for in the formal
policy. He received an additional 5 cents in Sep-
tember. The record thus clearly establishes that the
written review policy was not exclusive or rigidly
applied.
The General Counsel next argues that Respon-
dent has been vacillating in its explanation of the
Delco increases. According to employee Nichols, in
advising the Delco employees of the raise, Harlee
Anderson "said that Delco had done such a good
job that they had deserved a five to ten-cent raise."
At departmental meetings held in October, em-
ployees of other departments questioned Kleiman
about the Delco increase. He told them that the in-
creases had been granted because Delco employees
had been working shorter hours than the other em-
ployees. At the hearing, Kleiman repeated both
record , the raise was not a flat 10 cents Of the 10 employees listed in the
letter , 6 received increases of 5 cents , 2 got 10 cents, and the remaining 2
received 15 cents.
"" This policy is reduced to writing but no written statement was introduced
into evidence
VIKING OF MINNEAPOLIS 1171
these explanations of the Delco increases and added
that he had been having trouble recruiting new em-
ployees for the Delco line. He testified that the
Delco operation was new . Viking had previously
produced tape recorders for automobiles under its
own label but the operation had proved not very
successful . Then it contracted to produce automo-
bile tape recorders exclusively for Delco, a subsidi-
ary of General Motors , and production started
around June or July . Delco ordered on a weekly ba-
sis, with resultant great fluctuation in orders. In ad-
dition , there was a serious problem of quality con-
trol, leading Delco to reject many shipments and
order frequent suspensions in production . Accord-
ing to Kleiman , the operation was beset by "vendor
problems" ( i.e., poor scheduling ) and engineering
problems . Kleiman further testified that early in the
fall of 1966 Delco drastically increased its orders,
imposing a heavy production schedule on Respon-
dent . While he had to build up the Delco line, he
was experiencing considerable turnover, since the
Delco Department was largely staffed by younger
employees.
The General Counsel contends that Respondent
is inconsistent in arguing that the Delco employees
were being recognized for fine performance despite
the fact that many Delco instruments were being
returned for poor quality , and, indeed , that the
quality was often so poor that the customer ordered
suspension of production . But Kleiman credibly
testified that the poor quality of the machines was
due to engineering problems, including , as a major
problem , a hum in the motors, which were
purchased from another independent source.
Kleiman 's testimony in this regard was uncon-
tradicted , although presumably the General Coun-
sel's witness Nichols was in a position to know what
the difficulties were . The Examiner concludes that
it was not unreasonable for Respondent to grant
merit increases to Delco employees despite the
poor quality of the instruments.
The General Counsel also contends that Respon-
dent is inconsistent in asserting that the increase
was motivated , in part at least , by an attempt to
recruit new employees , while at the same time
maintaining that the existing Delco employees had
been working short hours . Again the seeming in-
consistency is more apparent than real . The record
supports Respondent 's assertions that Delco opera-
tions were very fluctuating. For example , in July
there were a maximum of six Delco Department
employees ; on November 21 there were 21 . Super-
visor Johnson testified that at one point the Delco
line had been completely shut down and that at the
time of the hearing there were only four Delco em-
ployees , plus two balancers.38
Respondent , however, has not clearly supported
its contention that the Delco Department em-
ployees had been working shorter hours than other
employees . Throughout the summer and fall Delco
employees' hours averaged in excess of 40 hours
per week , despite the fact that some of them were
only part-time employees . Employee Nichols
testified , and the Company's records corroborate
him, that throughout that period he was working
between 45 and 53 hours per week . Respondent's
evidence concerning Nichols is conflicting . When it
was called to his attention that Nichols had worked
53, 47, 59, and 50 hours per week in September,
Kleiman said : "There is an exception in Nichols'
case because apparently when he didn 't work on
Delco or Delco was shut down , he worked on other
jobs in the shop ." But Gary Tomperi , Respondent's
production control supervisor , testified as follows:
TRIAL EXAMINER : You don't recall whether
there was a period in which the Delco em-
ployees were working shorter hours?
THE WITNESS : No. It has been a standard
company policy to put these people , not to lay
these people off , but to put them into other
operations in the lines where we are presently
running, our other tape recorder lines.
THE WITNESS : It has been a pretty close
standard policy to keep them in the plant and
not lay them off with short hours.
Kleiman testified that during the summer of 1966
production workers other than the Delco Depart-
ment "were probably working the full amount per-
missible under the law. The women , I believe, were
working about 50 hours, and many of the men were
working in excess of that ." He also testified that for
some time the rest of the plant had been regularly
working 6 full days a week . Respondent , however,
presented no records to show that the hours of
other employees were generally longer than those
of Delco employees . Presumably such records
would have been easy to compile . Employee
Nichols testified that the Delco Department was
working regularly from 7 a.m. to 4 : 30 p.m ., while
some other parts of the plant were not starting until
8 a.m. He testified further that those Delco Depart-
ment employees who worked shorter hours did so
by choice, for personal reasons.
Finally, the General Counsel emphasizes the fact
"that by September 21, five employees from the
small Delco Department had signed union
authorization cards ." General Counsel adduced no
evidence , direct or circumstantial, to suggest that
Kleiman , or any other representative of Respon-
dent , knew who, if anybody , had signed cards when
the Delco increases were initiated or announced.
Of the 15 employees identified as Delco Depart-
s" The Company's balancing wheels are located in the Delco Department
and are operated by Delco Department employees Thus these employees
do some work for other company products.
353-177 0 - 72 - 75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment employees on September 20, 3 signed union
cards on September 20 and 2 on September 21. In
an overall unit of around 100, 18 employees signed
cards on September 20 and 6 on September 21.
The concentration within the Delco Department
thus does not appear to be grossly disproportionate
to that in the rest of the plant.
In sum, the Examiner finds deficiencies, confu-
sion, and discrepancies in all the evidence concern-
ing the alleged Delco Department wage increases.
On all the evidence, including the demeanor of the
witnesses, the Examiner concludes that the General
Counsel has failed to establish by a preponderance
of the evidence the allegation that Respondent
"granted its Delco Department employees a wage
increase in order to induce said employees to re-
frain from" supporting the Union In so concluding,
the Examiner notes the absence of any indication by
the General Counsel as to how the granting of wage
increases to about 10 percent of the unit employees
might be calculated to discourage union support,
particularly where, as here, there was no apparent
correlation between the increases and union ad-
herence. See Astronautics Corporation of America,
164 NLRB 623 (TXD); Jewell Smokeless Coal Cor-
poration, 163 NLRB 651 (TXD). The General
Counsel has failed to show that the increases
granted to some Delco Department employees
around September 21 were granted "with the ex-
press purpose of impinging upon [employees']
freedom of choice for or against unionization and
[were] reasonably calculated to have that effect."
N.L.R.B. v. Exchange Parts Company, 375 U.S.
405, 409.37
Accordingly, the Examiner will recommend
dismissal of the complaint so far as it alleges viola-
tion of the Act by the grant of wage increases to
Delco Department employees in September 1966.
2. Alleged violations of Section 8(a)(1) during the
election campaign
a. The effect of the representation proceeding
The complaint alleges that in October and
November Respondent committed violations of
Section 8(a)(1) by making promises of benefits to
induce employees not to support the Union and by
posting and maintaining unlawful no-solicitation
and no-distribution rules. These allegations refer to
the same events that were investigated in the
representation proceeding and served as the basis
for the Board's setting the election aside and direct-
ing a second election.
The General Counsel introduced into evidence
the Regional Director's report on objections to the
election, Respondent's exceptions thereto, and the
order of the Board adopting the Regional Director's
decision. In its order the Board said:
The Employer's exceptions, in our opinion,
raise no material or substantial issues of fact or
law which would warrant reversal of the Re-
gional Director's findings and recommenda-
tions.
Neither at the hearing nor in his brief did the
eneral Counsel seek to rely on the representation
case decision as conclusive of any issues in the un-
fair labor practice proceeding. All issues presented
by the complaint, including matters involved in the
representation proceeding, were fully litigated be-
fore the Examiner in the complaint proceeding. As
previously observed, in the 8(a)(5) portion of the
present proceeding the Examiner was not at liberty
to make independent findings as to the issues in-
volved in the representation case. However, so far
as the complaint alleges violations of Section
8(a)(1) of the Act, it appears that the decision in
the representation case probably does not preclude
relitigation and independent decision of any issues
in the complaint proceeding. This result would
seem to follow from two separate principles. First, a
complaint alleging violation of Section 8(a)(1) ap-
parently is not a subsequent proceeding "related"
to the representation case within the purview of
Section 102.67(f) of the Board's Rules and Regula-
tions . See Amalgamated Clothing Workers of Amer-
ica [Sagamore Shirt Co.] v. N.L.R.B., supra,
904-905; Leonard Niederriter Company, Inc., 130
NLRB 113; The Standard Products Company, 159
NLRB 159. Second, the Board's finding that certain
conduct by an employer interfered with the proper
conduct of an election is not necessarily equivalent
to a finding that the same conduct was violative of
Section 8(a)(1), since "the test of conduct which
may interfere with the `laboratory conditions' for
an election is considerably more restrictive than the
test of conduct which amounts to interference,
restraint, or coercion which violates Section
8(a)(1)." Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-1787; Sewell Manufacturing
Company, 138 NLRB 66, 70; Douglas and Lomason
Company, 151 NLRB 616, 623; Watkins Center,
156 NLRB 442.
Although it is legally possible that "at approxi-
mately the same time the same issue [may be] de-
cided in different ways for different purposes,"38
Amalgamated Clothing Workers [Sagamore Shirt
Co.] v. N.L.R.B., supra, 365 F.2d at 898, footnote
" While not decisive , it is interesting to note that , if Respondent had in-
tended to dissuade Delco Department employees from supporting the
Union, it was signally unsuccessful Nine Delco employees signed union
cards on September 26 and 27 The remaining Delco Department em-
ployee, who had been hired on September 26, signed an authorization card
on September 29
31 The varying applicability of the Board's rule against relitigatton has led
one Examiner to make essentially inconsistent findings as to the same facts
in one and the same case On exceptions , the Board reversed the Ex-
aminer's decision of the 8 (a)(I) allegations on the merits, thus achieving a
result consistent with the decision in the representation case and the
8(a)(5) portion of the unfair labor practice complaint It thus did "not
reach the issue whether relitigation should have been permitted " Ross
Porta-Plant , Inc, 166 NLRB 494
VIKING OF
15, such result can usually be avoided by granting
"persuasive relevance" or "administrative comity"
to the prior decision in the representation case.
Security Guard Service, Inc., 154 NLRB 8, enfd.
384 F.2d 143 (C.A. 5); National Freight, Inc., 154
NLRB 621, 627-628. Following that course arrives
at consistent results in the 8 (a)(1) and (5) aspects
of the present case, since the litigation did not ad-
duce any substantial evidence or establish any
material facts which were not before the Board in
the representation proceeding, either in the Re-
gional Director 's report or in Respondent's excep-
tions thereto and, as shown below, the Board's ac-
tion effectively disposes of all the issues raised by
the pending allegations of violations of Section
8(a)(1) in October and November, during the elec-
tion campaign . While the ultimate holding in the
representation case was that Respondent had inter-
fered with the conduct of a proper election , subsidi-
ary findings and rulings by the Regional Director,
adopted by the Board , indicate that the conduct al-
leged was also violative of Section 8(a)(1). In the
absence of evidence requiring findings of relevant
or material fact in conflict with those made in the
representation case , the Examiner deems herself
bound by the Board 's conclusions , if only as bind-
ing precedent as to the legal effects of such facts.
b. Promises of benefits
(1) Kleiman 's statements
Section 7(b) of the complaint alleges that:
Respondent, by its president , Ansel Kleiman,
from on or about October 1, 1966, to on or
about November 14, 1966, made four speeches
to its employees , and during the course of said
speeches promised its employees wage in-
creases, a retirement program , a rate and job
classification system , sick leave , and other
benefits or improvements in their terms and
conditions of employment if they refrained
from becoming or remaining members of the
Union or giving assistance or support to it.
The Regional Director's report reads:
The investigation reveals that the Employer's
president , Ansel Kleiman , made four extem-
poraneous antiunion speeches to employees
during working hours between the date the
petition was filled and the date of the election.
The first three speeches were in separate de-
partments and were essential ly the same in
content. Kleiman claims he made three depart-
mental speeches at the request of several em-
ployees; however, there is evidence indicating
that the Employer encouraged those requests.
The procedure that was followed at the first
three meetings was that an employee raised a
general topic for discussion and Kleiman then
presented the Employer 's views and plans on
the subject . During the course of the meetings
MINNEAPOLIS 1 173
Kleiman mentioned a number of benefits and
improved working conditions that were being
considered by the Employer, such as a retire-
ment program, a rate and job classification
system, and a new plant, or at least a
modernization of the existing facilities. He
further mentioned that the Employer needed
time to prove itself to its employees. In the
course of these speeches Kleiman said it was
impossible for the Union to fulfill wage in-
crease and fringe benefit promises because it
could not guarantee anything aside from the
institution of monthly dues and initiation fees.
He further stated that the Union could not do
anything for the employees that the employees
and the Employer couldn't do for themselves.
The fourth meeting was with all production
and maintenance employees and held between
the 26th and the 24th hour period preceding
the election. The thrust of Kleiman's speech on
that occasion was that under Telex manage-
ment the employees would receive additional
benefits if the Employer's profit picture im-
proved. He promised that the Employer would
share any future benefits with the employees
and also promised to look into possible sick
leave benefits when future conditions per-
mitted. In connection with the above-men-
tioned promises, he stated that the Employer's
Glencoe plant employees received three
general wage increases during the past year.
He told the employees that all the Union could
do was to collect $6.00 a month. He further
told the employees that the Employer's plants
with a collective bargaining agent probably did
not fare any better than those without a bar-
gaining agent and that some of the Employer's
unionized employees were making less money
than the Glencoe and Minneapolis plants. He
further told the employees that the Employer's
door is always open to receive and discuss em-
ployees' complaints and gripes, and that he
thought it would be to the employees' ad-
vantage to be without a union. It is Board pol-
icy that if any employer's statement substan-
tially interferes with an election, the form in
which the statement was uttered is immaterial.
[Citing Dal-Tex Optical Company, 137 NLRB
1782, 1787.] Therefore, I find no merit in the
Employer's contention to the effect that the
occurrences at its meeting with employees on
the day prior to the election were not coercive,
because the subject matters discussed had been
previously discussed at prior meetings with the
employees.
The Regional Director's statement concerning
the October and November meetings conforms with
the evidence adduced at the unfair labor practice
hearing.
Respondent contends that none of Kleiman's al-
leged "promises" could be held violative of Section
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1), as construed in N.L.R.B. v. Exchange Parts
Company, 375 U.S. 405, because the October de-
partmental meetings were requested by employees;
his statements there were made only in response to
questions by employees and were merely repeti-
tions of statements originally made by him on July
8, when Telex took over and before the Union
commenced its organizational campaign; and his
statements at the November 14 meeting in turn
were repetitions of those in October.
The evidence does establish that on July 8 an em-
ployee meeting was held, at which Kleiman was in-
troduced as the representative of the new manage-
ment. At that time Kleiman informed the em-
ployees of certain plans Telex had for the improve-
ment of Viking's operations, which for some time
had been conducted at a break-even or loss level.
Kleiman said that the Telex Magnecord Division
was then producing tape recorders in Tulsa,
Oklahoma, and that operation would be moved to
Minnesota for consolidation with the Viking opera-
tion. He stated that it would be necessary to enlarge
and modernize the Viking plant, if possible, or, if
that was not feasible, a new building would be
erected. According to the credited testimony of
Johnson, supervisor of Viking's Tape Department,
Kleiman said that he hoped it would be possible to
build the new building in the Bloomington area. At
the July meeting Kleiman spoke optimistically of
Viking's future and assured the employees that they
would share in the Company's prosperity as it was
realized. He further assured the employees that
none of the employee benefits they then enjoyed
would be eliminated or reduced; all they could ex-
pect would be improvements as the Company's
economic position permitted. After addressing the
employees, he opened the meeting up for questions.
In answer to a question, he stated that whether the
employees wanted a union was entirely up to them;
that the Company had no official position, but he
personally thought a union was not necessary.
Questions were asked as to specific employee
benefits. At the hearing examination was sparse,
witnesses' recollections were generally unclear and
imprecise, and the evidence is conflicting as to
what specific benefits were raised at that meeting.
However, it is clear that Kleiman said the Company
a In his brief, the General Counsel also refers to the fact that, in answer
to an inquiry, Kleiman said the employees would be permitted to smoke in
the plant when there was adequate ventilation , either in a new building or
by renovation of the existing structure The Examiner holds that, under the
circumstances, such a "promise " would not be sufficient to constitute a
violation within the Exchange Parts principle
'0 As previously noted, Respondent has since announced that the Viking
operation would be moved to Blue Earth , Minnesota
" The record does establish that at least some employees were desirous
of hearing the Company 's position on several matters and that the Com-
pany was interested in stating its position Employee von Stocken , called by
Respondent , testified "I heard that the tape department had requested a
meeting with the president of our company to find out some information
and that the cards had been signed and they knew what the union had to
offer them, but wanted to find out what Mr Kleiman would offer them "
was considering or would look into each type of
benefit raised by the employees. He made no
specific promises or commitments; nor did he reject
any suggestion.
At the October meetings , as found by the Re-
gional Director, Kleiman spoke of "a number of
benefits and improved working conditions that
were being considered by the Employer, such as a
retirement program, a rate and job classification
system, and a new plant, or at least a modernization
of the existing facilities." The evidence establishes
that at the October meetings Kleiman stated that
Telex had a retirement plan under consideration
and he thought something good would be worked
out. He also said that he would look into the matter
of sick leave benefits, but no commitment was
made. One witness for the General Counsel
testified that he believed Kleiman "said that they
were planning something else on [vacations] to ex-
tend it after so many years, but that was still in
process." The only significant definite promise at-
tributed to Kleiman was that the Company would
remain in the Bloomington area.39 Three employees
testified that Kleiman made this promise at the Oc-
tober meeting. The Examiner believes this
testimony is not entirely accurate. Kleiman
testified, in effect, that it was around August that
he decided that a new building would be required.
He then "started examining sites as close in as we
could .... We had hoped that the circumstance
would prove out where we could build another fac-
tory within the same area." The Examiner is
inclined to believe that in the October meetings
Kleiman merely repeated the hope he expressed at
the July meeting that the Viking plant could remain
in the same general area.40
As the Examiner understands it, the decision in
the representation proceeding makes it immaterial
whether, as Respondent maintains, (1) the
meetings in October were called at the request of
employees;41 (2) Kleiman merely answered em-
ployees' questions;42 and (3) Kleiman only repeated
statements he had made at the July meeting, before
the advent of the Union.43
(1) As quoted above, the Regional Director said:
Kleiman claims he made these departmental
speeches at the request of several employees;
Supervisor Johnson testified that he told the employees that the Com-
pany could not call meetings unless requested by employees In this
Respondent appears to have viewed its rights too restrictively N L R B v
United Steel% orkers ofAnierica (Nutone, Inc ), 357 U S 357, Sec 8(c)
In any event , Respondent concedes that it called the meeting of
November 14 on its own initiative
aR The evidence establishes that the departmental meetings in October
were in question -and-answer format Kleiman repeatedly stated that he was
prevented by law from making any promises and could only answer specific
questions asked of him There was no evidence that Kleiman 's statements
were made in such a way as to suggest that benefits were being withheld
which would be forthcoming were it not for the pendency of the election
"The present record is inadequate to permit definitive findings as to
what specific benefits were discussed at each of the various meetings
VIKING OF MINNEAPOLIS 1175
however, there is evidence indicating that the
Employer encouraged those requests.
In its exceptions to the Regional Director 's report,
Respondent emphatically denied that it had in-
stigated the employee requests and asserted as "a
positive statement of fact" that the October
meetings had been held "at the request of the em-
ployees." In affirming the Regional Director, the
Board stated that the exceptions raised no material
issues of fact or law.
(2) In its exceptions in the representation
proceeding , Respondent strenuously objected to
the Regional Director's description of the October
meetings . The exceptions say, in part:
The employees did not raise general topics
for discussion-they asked questions, and Mr.
Kleiman supplied the answers where he could.
Mr. Kleiman insists that these questions
came from the employees freely.
Respondent also objected to the Regional
Director 's having referred to Kleiman 's statements
at the November 14 meeting as an " anti-union
speech ." Respondent said:
In the fourth meeting held in the work area of
the employees , Mr. Kleiman provided answers
to employees from questions that had been
raised in the first three meetings and sub-
sequently and wherein he had needed addi-
tional time and study to respond to them. In
that fourth meeting , after making his response
to earlier questions raised , the balance of the
meeting then consisted of comments by em-
ployees.
Thus, the Board's adoption of the Regional
Director 's report indicates that it is immaterial
whether Kleiman 's statements were made in answer
to employee questions.
(3) In the representation proceeding , the Re-
gional Director expressly rejected Respondent's
"contention to the effect that the occurrences were
not coercive , because the subject matters discussed
had been previously discussed at prior meetings
with the employees . In its exceptions , Respondent
emphasized the July meeting , saying in part:
any such items raised by questions in the
first three meetings in the report [in October],
actually had already been discussed by the
company with the employees back in the July
8, 1966, meeting. At the time of the July 8,
1966, meeting , the union was not even in the
picture . The Regional Director's Report
completely failed to give this important
background context.
And, as just noted, Respondent maintained that any
"promises" in November merely followed upon
matters discussed in October. The Board's af-
firmance of the Regional Director's findings in the
face of Respondent's exceptions necessarily means
that the impropriety of Kleiman's "promises" dur-
ing the election campaign would be unaffected by a
showing that substantially the same statements had
been made before the campaign began.44
(2) The Heath speech
Section 7(c) of the complaint reads:
Respondent, by its agent, Ralph Heath, on or
about November 14, 1966, made a speech to
the employees in the unit in which Respondent
promised its employees a retirement program,
improved vacation benefits, wage increases
and other benefits or improvements in their
terms and conditions of employment if they
refrained from becoming or remaining mem-
bers of the Union or giving assistance or sup-
port to it.
Heath is a rank-and-file employee, who the
General Counsel does not maintain has supervisory
status within the statutory definition. At the meet-
ing he convened on November 14, 26 hours before
the election, Kleiman made a brief talk and then
opened the meeting to statements by employees.
Employee Heath walked to the microphone, took
some papers out of his pocket, and proceeded to
read a six-page, single-spaced typewritten speech in
which he fervently urged the employees to vote
against the Union in the forthcoming election.
Although Heath had apparently for some time been
very vocal as to his antiunion position, and Kleiman
testified to having known Heath's identity for 2
weeks before the November meeting, there was no
evidence, and the General Counsel does not con-
tend, that Heath's speech was prepared or delivered
with the prior connivance or knowledge of
Kleiman.45
In his report in the representation proceeding,
the Regional Director said:
Upon the conclusion of Kleiman's speech,
employee Ralph Heath read a speech to the as-
sembled group, including Kleiman. The crux of
Heath's speech was that the Employer's pres-
ident was offering certain benefits that the
Employer should be given a year's grace period
in which to put them in effect. [sic] Heath also
strongly urged the employees not to vote for
the Union. Kleiman was present during Heath's
"The Examiner suggests that the Board might desire to reconsider this
ruling in the light of Dan Howard Mfg. Co, 158 NLRB 805, 807, in which
the Board held that the granting of holiday pay during an election cam-
paign did not violate the Act "in view of the fact that [Respondent] had
demonstrated its intention by informing some of the employees thereof
prior to the advent of the Union " See also Redcor Corporation, 166 NLRB
1013
'" In his speech Heath said : " I have made these statements of my own free
will and in cooperation with those who do not want a union AT THIS
TIME To those of you who think I am a poor union man, I can give you
references showing my past union activity which has been quite extensive
To those of you who think the company has bought me out let me say this
'They haven't got money enough "' Although the General Counsel success-
fully impeached Heath 's testimony that he had not ascertained that an em-
ployee meeting would be held before preparing the speech , there was no
evidence warranting a finding that he spoke at the behest of or with any ad-
vance knowledge by Kleiman or any other representative of Respondent
1176 DECISIONS OF NATIONAL
entire speech. He did not repudiate any part of
it. Accordingly, I find that the Employer
thereby imphedly ratified and adopted those
parts of the Heath speech relating to promises
of benefit Heath attributed to the Employer as
its own statements to its employees.
The Examiner understands this as a ruling of law
that, as alleged in the complaint, Heath was
Respondent's agent in making his speech at the em-
ployee meeting on November 14.
In his speech, Heath said, inter alia:
. [Kleiman] has said that any benefits en-
joyed by other divisions of Telex would be
granted to us.41' The employees of each di-
vision of Telex will share in the profits which
they themselves help the company to realize.
He only asked for time to work these things
out. Doesn't this indicate that Telex is con-
cerned about its employees?
We have been told by Mr. Kleiman that an
industry wide study is being made by Telex for
the purpose of implementing a retirement
plan-something to supplement our social
security and old soldiers benefits. Isn't this an
indication of the concern that Telex has for its
employees?
We have been told that Telex has under con-
sideration a plan for three, possibly four weeks
vacation based on length of service with the
company. Isn't this an indication of the con-
cern that Telex has for its employees?
Heath further suggested that benefits were being
withheld because of the election campaign , saying:
If no effort had been made AT THIS TIME
to organize a union-is it possible you would
already be enjoying the benefits of a wage in-
crease? You would like to know, wouldn't you?
You can't ask Mr. Kleiman because by your
own actions , you have invoked a law which not
only denies management the right to grant an
increase , but prevents them from telling you if
there would have been one. And so Mr.
Kleiman is strangely quiet. And all you can do
is let your curiosity gnaw at your conscience
and wonder how much money you have al-
ready lost on your paychecks because your ac-
tions have prevented an increase.
Later in the speech Heath suggested issuing a chal-
lenge to Respondent, as follows:
If the union is defeated you may have more
strength than if it had won. For then you can
turn to company management and say:
* * * * *
'" While there was evidence indicating that a companywide retirement plan
was being considered and Kleiman indicated he would consider sick leave
benefits in the light of the policy at the Telex Glencoe plant, which is non-
union , there is no evidence (other than Heath 's statement ) that Kleiman
ever made a broad commitment or promise to grant Viking employees any
LABOR RELATIONS BOARD
"You have stated that the Telex program of
wages and benefits would be made public in at
least 30 days after the election. We expect this
to be carried through.
*
"We expect you to look into the wage in-
equalities and make the required adjust-
ments....
"We would appreciate a company policy to
encourage vocational and technical training
which would help the individual qualify for a
better job at higher pay. The possibility of in-
plant classes after working hours should not be
overlooked.
* * * * *
"And finally we are telling you that this is
the last chance to operate this plant without a
union. Those of us who are opposed to the
union AT THIS TIME have done so because
we honestly believe the company and the em-
ployees are better off without a union. There
will not be a second chance."
Heath concluded his speech as follows:
Those of us who are voting no on the union
issue are determined that conditions in this
shop will be better. We think we can grow with
the company. Ours is a common goal. We can
stand together; united without the drain of
union dues on our pockets; presenting to the
company a common, firm front at the same
time we extend our hand in cooperation and
good will.
If Kleiman had himself made an employer's coun-
terpart of Heath's speech, it would reasonably be
read as implying promises of improved conditions
within a year if the Union was defeated. Thus, since
Respondent is held responsible for Heath's state-
ments, it must be found to have violated Section
8(a)(1).
(3) Conclusion as to alleged promises of benefits
The Regional Director stated his conclusions
concerning the employee meetings as follows:
Considering the Employer 's several speeches
here involved in their entirety , I am of the
opinion that they exceeded the permissible
bound of employer electioneering. The intent
and purpose of the speeches was to induce em-
ployees to vote against the Union by promises
of benefits. From the Kleiman speeches the
benefits enjoyed at other Telex installations . Since some of the Telex plants
are organized, any such promise , if made by Kleiman , would be violative of
Section 8 ( a)(1) as "an announcement that the [ Viking] employees would
receive all the benefits of a union contract without a union ." Casey Manu-
facturing Company, 167 NLRB 89
VIKING OF MINNEAPOLIS
employees could reasonably understand that
such benefits would be gained without the
necessity of a bargaining agent and that it
would be an unnecessary expense to the em-
ployees and an act of futility to select a bar-
gaining a#ent because a union would not im-
prove their economic or working conditions. In
these circumstances I conclude that the
speeches made during the period between the
date of the filing of the petition and the date of
the election interfered with the employees'
right to a free election.
Although the operative effect of the Regional
Director 's decision was to set aside an election, he
cited an authority N.L.R.B. v. Exchange Parts Com-
pany, supra , 375 U.S. 405 , and Flomatic Corpora-
tion , 147 NLRB 1304, enfd . in part 347 F.2d 74
(C.A. 2), both unfair labor practice proceedings.
His conclusion that "The intent and purpose of the
speeches [were] to induce employees to vote
against the Union by promises of benefits" requires
a holding that Respondent violated Section
8(a)(1).
c. The no-solicitation and no-distribution rules
The Regional Director's report says:
... on October 11, 1966, thirteen days after
the instant petition was filed , the Employer
posted in its plant "Rules Governing Solicita-
tion Activities" which contain, inter alia,
restrictions on employees ' solicitation for or
against union organization and the distribution
of union literature during working time on the
Employer 's premises.... [A]ssuming that on
their face these rules are presumptively valid, I
conclude that the timing of their promulgation,
the Employer 's violation of these rules on at
least several occasions when it conducted an-
tiunion meetings on the Employer's premises
and during employees ' working time, which
conduct I find coercive , and permitting em-
ployee Heath to deliver a lengthy antiunion
speech on the Employer 's premises and during
employees ' working time , clearly reveals that
these rules were calculated to interfere with
the employees' self-organization and the em-
ployees right to a free election, and I so find.47
In support of this conclusion , the Regional Director
cites two cases involving violation of Section
8(a)(1) (Pepsi Cola Bottlers of Miami , Inc., 155
NLRB 527, and Electro Plastic Fabrics, Inc., 157
NLRB 1023) and one decision in a representation
" In affirming the Regional Director , the Board had before it the assertions
in Respondent 's exceptions that employees freely made prounion state-
ments at the meetings.
'" The present case differs from Dan Howard Mfg Co., 158 NLRB 805, on
which the General Counsel relies . In that case it was found that an em-
ployee engaged in antiunion activities during working hours "at the behest
of the Company" ( p. 812), while a no -solicitation rule was enforced against
prounion activity. In the present case , Heath 's speech was delivered at a
lawful meeting of all employees , with production suspended; he did not
1177
proceeding (Armstrong Cork Company, 109 NLRB
1341). While the Examiner has serious question
whether the rationale of the Regional Director's
holding is consistent with N.L.R.B. v. United Steel-
workers of America [Nuton Inc.], 357 U.S. 357,48
she deems herself bound by the finding adopted by
the Board, that the "rules were calculated to inter-
fere with the employees' self-organization."" Ac-
cordingly, it is found, as alleged in the complaint,
that the promulgation of the rules was violative of
Section 8(a)(1).
Thus, applying the rulings and conclusions of the
Board in the representation proceeding to the
evidence adduced at the present hearing, the Ex-
aminer finds and concludes that in October and
November, during the election campaign, Respon-
dent violated Section 8(a)(1) by promising its unit
employees benefits to discourage their support of
the Union and by posting and maintaining improper
no-solicitation and no-distribution rules.'
3. Postelection wage increase
The complaint alleges that Respondent violated
Section 8(a)(1) by announcing a general wage in-
crease covering the unit employees on January 4,
1967, which was just a few days after issuance of
the Regional Director's report recommending that
a second election be held.
In view of the prior finding that the wage in-
crease in question was violative of Section 8(a)(5),
it appears unnecessary to pass on the matter as an
alleged violation of Section 8(a)(1). Mink-Dayton,
Inc., 166 NLRB 604.
CONCLUSIONS OF LAW
1. Respondent is an employer within the mean-
ing of Section 2(2) of the Act, 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. In October and November 1966 Respondent
made promises of benefits to its employees to in-
duce them to refrain from supporting the Union,
thus interfering with, restraining, and coercing its
employees in violation of Section 8(a)(1) of the
Act.
4. On October 11, 1966, Respondent promul-
gated and thereafter maintained unlawful no-so-
licitation and no-distribution rules which interfered
with, restrained, and coerced its employees in viola-
tion of Section 8(a)(1) of the Act.
hold himself out as an agent of Respondent , nor was he acting at Respon-
dent's behest, and no restriction was imposed on employees' making pro-
union statements at the meeting if they so desired.
49 Additional facts adduced at the unfair labor practice hearing ( see supra,
sec II, A, 2) would not alter the conclusion reached by the Board
"The allegation that Respondent " promulgated and posted ... unlawful
no-solicitation and no -distribution rules," is deemed adequate to cover the
violation as found , particularly in view of the prior decision in the represen-
tation case
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent did not interfere with, restrain, or
coerce its employees by granting wage increases to
employees in its Delco Department in September
1966.
6. The following employees of Respondent con-
stitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All production and maintenance employees at
the Minneapolis plant, excluding all office em-
ployees, professional employees, guards and super-
visors as defined in the Act.
7. Since September 29, 1966, the Union has
been and is the exclusive representative of the em-
ployees in the aforesaid unit within the meaning of
Section 9 (a) of the Act.
8. By refusing, since September 29, 1966, to
recognize and bargain collectively with the Union
as the exclusive representative of the employees in
the aforesaid bargaining unit , Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of
the Act.
9. By announcing a general wage increase on
January 4, 1967, and making payment retroactively
on April 24, without consulting or bargaining with
the Union, Respondent has engaged in an unfair
labor practice within the meaning of Section
8(a)(5) of the Act.
10. By announcing, on May 4, 1967, its plans for
moving its operations without advising the Union
and bargaining collectively with respect to the ef-
fect of such action on the employees, Respondent
has engaged in an unfair labor practice within the
meaning of Section 8(a)(5) of the Act.
11. The said unfair labor practices effect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
8(a)(1) and (5) of the Act, the Examiner will
recommend the customary cease-and-desist and
notice hosting remedies.
Additionally, to remedy the violations of Section
8(a)(5), the Examiner will recommend a general
bargaining order, as requested by the General
Counsel . In so recommending , the Examiner is not
unmindful of the fact that Respondent has previ-
ously announced that in the period October
through December 1967 the Viking of Minneapolis
operation is scheduled to move to Blue Earth, Min-
nesota, there to be consolidated (at least to some
extent, unspecified) with the Telex Magnecord
operation. However, having no current information
and being aware of the fate that ofttimes befalls
even the best laid plans (particularly when, as here,
building construction schedules are involved) the
Examiner will here assume the continuance of the
situation shown to exist at the time of the hearing.
It is suggested that, if conditions have significantly
changed, the parties may so advise the Board and
request appropriate action. Cf. Webb Tractor and
Equipment Co., 167 NLRB 383, footnote 10.
Since the General Counsel concedes that
Respondent's decision to move to Blue Earth was
economically motivated, the Examiner will not
recommend any mandatory provision for payments
to employees, leaving such matters to the collec-
tive-bargaining process. See McGregor Printing
Corporation, 163 NLRB 938. Similarly, the Recom-
mended Order will not require Respondent to make
any change in existing conditions.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this proceeding, the Trial Examiner recommends
that Viking of Minneapolis, Division of the Telex
Corporation, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to recognize and, upon request, to
bargain collectively with District 77, International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of all
production and maintenance employees at the Min-
neapolis plant, excluding all office employees,
professional employees, guards and supervisors as
defined in the Act.
(b) Promising retirement benefits, sick leave, in-
creases in wages, improvement in vacations, better
working conditions, or other economic benefits to
its employees in order to interfere with their choice
of a bargaining representative, or as inducement to
reject and refrain from activities in support of said
Union.
(c) Promulgating or maintaining illegal no-sol-
icitation or no-distribution rules.
(d) In any like or similar manner interfering
with , restraining , or coercing its employees in the
exercise of their rights of self-organization, to form,
join, or assist the Union, or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from engaging in any or all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) and recognized in
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collec-
tively with the Union as the exclusive representa-
tive of the employees in the bargaining unit
VIKING OF MINNEAPOLIS 1179
described above, and embody any understanding
reached in a signed agreement.
(b) Upon request, bargain with the Union on be-
half of the employees in the unit defined above
concerning notice of termination, severance pay,
transfer, and similar incidents of the anticipated
move of the operations of Viking of Minneapolis to
Blue Earth, Minnesota.
(c) Upon request, bargain with the Union as the
exclusive bargaining representative of the em-
ployees in the unit defined above concerning any
proposed changes in wage rates, insurance benefits
and plans, or other terms or conditions of employ-
ment.
(d) Post at its plant in Minneapolis (Blooming-
ton), Minnesota, copies of the attached notice
marked "Appendix."" Copies of such notice, on
forms provided by the Regional Director for Region
18, after being duly signed by an authorized
representative of Respondent, shall be posted im-
mediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 18,
in writing , within 20 days from the date of receipt
of this Decision, what steps Respondent has taken
to comply herewith.s2
The complaint is dismissed insofar as it alleges
unfair labor practices not hereinabove found.
81 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order."
as 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."
WE WILL bargain upon request with District
77, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclu-
sive representative of the production and main-
tenance workers at our Minneapolis
(Bloomington) plant.
WE WILL bargain with said Union specifically
with respect to transfer rights, notice of ter-
mination, severance pay, and similar terms and
conditions incident to moving the operations of
Viking of Minneapolis to Blue Earth, Min-
nesota.
WE WILL NOT effect any changes in wages,
insurance, or other terms or conditions of em-
ployment of the production and maintenance
workers at our Minneapolis (Bloomington)
plant without first advising the Union and,
upon request, bargaining with the Union.
WE WILL NOT promulgate, maintain, or en-
force any no-solicitation or no-distribution
rules in such a manner as to interfere with,
restrain, or coerce our employees in the exer-
cise of their rights of self-organization.
WE WILL NOT promise any increases in
wages, improvements in vacations, retirement
benefits, sick leave, or other economic benefits
to induce our employees to withhold support
from the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to join or
assist a union, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for mutual
aid or protection.
VIKING OF MINNEAPOLIS,
DIVISION OF THE TELEX
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the of National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 316 Federal Building, 110 South Fourth
Street, Minneapolis, Minnesota 55401, Telephone
334-2611.