The Mather Co.

National Labor Relations Board - Board Decisions

Jun 25, 1968

172 N.L.R.B. 253 (N.L.R.B. 1968)

THE MATHER COMPANY
The Mather Company , Fluorotec Division and Inter-
national Union , United Automobile , Aerospace
and Agricultural Implement Workers of America
(UAW). Cases 7-CA-5713 and 7-CA-5881
June 25, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS , AND ZAGORIA
On July 24, 1967, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended , and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer 's Decision . Thereafter , the Respondent filed
exceptions to the Trial Examiner 's Decision and a
supporting brief, the General Counsel filed cross-
exceptions and a supporting brief, and the Charging
Party filed a brief in opposition to the Respondent's
exceptions . The Respondent also filed an answer to
the General Counsel 's cross-exceptions.
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 proceeding 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 this proceeding, and
hereby adopts the findings ,' conclusions, and
recommendations of the Trial Examiner, as
modified herein.
The Trial Examiner found that the Respondent
violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union.
While we agree with the Trial Examiner 's conclu-
sion , we do not adopt his rationale.2
As more fully set forth in the Trial Examiner's
Decision , the Union represented a majority of the
' We do not agree with the Trial Examiner that the Respondent violated
Section 8 ( a)(I) of the Act when John Rutter , Respondent 's plant con-
troller and personnel man, explained to the employees that the advent of
the Union would mean that if the Union secured its desired contract strict
departmental seniority would be established which would prohibit the
Respondent from making interdepartmental transfers as it had done in the
past , thus causing layoffs . We view these statements , in the context in
which they were made , as expressions of what might happen , and therefore
find that they did not constitute threats within the meaning of Section
8(a)(1) of the Act
253
employees in the appropriate unit on July 28, 1966,
when the Union requested recognition. Thereafter,
by letter dated August 1, 1966, the Respondent in-
formed the Union it could not recognize it as col-
lective-bargaining representative until its represent-
ative status was established by the Board. The
Union thereupon filed a representation petition
with the Board. On August 19, 1966, the Respon-
dent consented to an election, which was held Sep-
tember 9, 1966. However, beginning on August 1,
1966, and continuing until the election, the
Respondent, as detailed in the Trial Examiner's
Decision , engaged in acts of unlawful interrogation.
Timely objections to the election were filed by the
Union and, on December 13, 1966, following an in-
vestigation, the Regional Director issued a Report
on Objections, in which he set aside the election
and directed a second election. Whereupon, the
Respondent, as detailed in the Trial Examiner's
Decision, engaged in further unlawful conduct by
announcing to the employees that they would be
granted certain fringe benefits.
An employer may in good faith insist on a Board
election as proof of the union's majority, but it un-
lawfully refuses to bargain if its insistence on such
an election is motivated by a rejection of the collec-
tive-bargaining principle or by a desire to gain time
within which to undermine the union.' The
question of motive is, of course, one which of
necessity must be determined in the light of all rele-
vant facts in the case.
We find that Respondent's refusal to bargain with
the Union was motivated by a desire to create the
opportunity to dissipate the Union's majority. In
reaching this conclusion, we rely on the facts that
Respondent prior to the election engaged in unlaw-
ful systematic interrogation and after the election
unlawfully granted fringe benefits. This conduct,
and particularly the grant of benefits after the
direction of the second election, we find, was not
only designed to induce employees to repudiate the
Union, but insured that it would be impossible to
hold a fair election.' Accordingly, we find that the
Respondent's refusal to recognize the Union was
motivated by it desire to gain time in which to un-
dermine the U;iion's majority status and that such
conduct is violative of Section 8(a)(5) of the Act.
Member Brown , in agreement with the Tnal Examiner , would find that
these statements constituted threats and were violative of Section 8(a)(1)
of the Act.
2 Member Jenkins agrees with the rationale of the majority in finding that
the Respondent has violated Section 8 (a)(5) of the Act, but he also would
adopt the Trial Examiner 's rationale.
'Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F.2d 732 (C A.D.C.),
cert denied 341 U S. 914
' Ralph Printing & Lithographing Co., 158 NLRB 1353, 1354.
172 NLRB No. 28
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 , The Mather Company,
Fluorotec Division , Milan , Michigan , its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner 's Recommended
Order , as modified herein:
1. Add the following as paragraph 1(b), the
present paragraphs 1(b) and 1 ( c) being relettered
as paragraphs 1(c) and 1(d):
"(b) Granting new fringe benefits , or other
benefits , as inducements to employees to withdraw
or withhold their support of the Union named
below or any other labor organization ; provided,
however , that nothing herein shall be construed to
require the Respondent to rescind or discontinue
new fringe benefits , or other benefits , already
granted."
2. Add the following as the last paragraph in the
Trial Examiner 's Decision.
"IT IS HEREBY FURTHER ORDERED that the petition
for certification of representatives filed by the Peti-
tioner in Case 7-RC-7555 be , and it hereby is,
dismissed, and that all prior proceedings held
thereunder be, and they thereby are, vacated."
3. Add as the third substantive paragraph in the
notice the following:
WE WILL NOT grant new fringe benefits, or
other benefits , as inducements to employees to
withdraw or withhold their support of the
above or any other labor organization. How-
ever , nothing herein prevents, or is intended to
prevent , our continuing in effect new fringe
benefits, or other benefits, previously given to
you.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner : A charge was
filed by the International Union , United Automo-
bile, Aerospace and Agricultural Implement Work-
ers of America (UAW), AFL-CIO, herein the
Union , on September 15, 1966 , against The Mather
Company, Fluorotec Division , herein Respondent.
An additional charge by the Union was filed against
Respondent on January 20, 1967. The instant
proceeding was heard on an order consolidating
cases, amended complaint , issued by the General
Counsel of the Board under date of March 14,
1967. The hearing was held in Ann Arbor,
Michigan , on April 26 and 27, 1967 , before Trial
Examiner Ramey Donovan . All parties were
represented by counsel and participated in the
hearing.
The complaint alleged that Respondent had
refused to recognize and to bargain with the Union
as the bargaining representative of Respondent's
employees although the Union represented a
majority of the employees in an appropriate unit
and although Respondent did not have a good-faith
doubt of the majority status of the Union. It is
further alleged in the complaint that Respondent
refused to recognize and to bargain with the Union
by engaging in specified conduct to undermine and
to dissipate the Union 's majority status . The con-
duct referred to as interfering with the rights of em-
ployees as guaranteed in Section 7 of the Act and
as undermining and dissipating the Union 's majority
status was : coercive interrogation by three named
supervisors of employees concerning the em-
ployees' union membership , activities, and desires;
threatening employees by a named supervisor with
layoffs if the Union was successful in its organizing
efforts; granting a substantial increase in its con-
tribution towards the cost of an existing Blue Cross-
Blue Shield hospitalization plan of its employees at
a time when a representation proceeding was pend-
ing before the Board , including objections to an
election that had been held, and after the Board,
through its Regional Director , had issued a Report
on Objections, Order Setting Aside Election, and
Direction of Second Election . The complaint al-
leges that the aforedescribed conduct of Respon-
dent violated Section 8(a)(1) and ( 5) of the Act.
Respondent has filed a general denial to the com-
plaint allegations.
Upon the entire record and from his observation
of the witnesses , the Trial Examiner makes the fol-
lowing:
FINDINGS OF FACT
1. JURISDICTION
The Mather Company is an Ohio corporation
with its corporate office in that State. The
Fluorotec Division is one of several divisions of the
corporation.
The Fluorotec Division has an office and plant in
Milan , Michigan , and this plant is the only facility
involved in this proceeding . Respondent has other
plants in Michigan and in Ohio . The Milan plant is
engaged in the processing of Teflon into custom-
made products and in the sale and distribution
thereof.
In a representative year , Respondent , at its Milan
plant , manufactured , sold, and distributed products
valued in excess of $400 ,000, of which products
valued in excess of $50,000 were shipped from said
plant directly to points outside Michigan. Respon-
dent also purchased and caused to be transported
and delivered , at its Milan plant , goods and materi-
als valued in excess of $50 ,000 that were trans-
ported directly from points outside Michigan.
Respondent is an employer engaged in commerce
THE MATHER COMPANY
within the meaning of Section 2(2), (6), and (7) of
the Act.
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
The Milan plant opened in 1962 and has been in
operation since that date. The Union commenced
its organizing campaign about July 1966. In that
month, the union representative, Dovelle, gave 40
or 50 union authorization cards to employee Otis
Kanitz, a machine operator employed at the plant.
According to Kanitz' uncontroverted testimony,
Dovelle "told me to hand them [the cards] out and
have the people sign them if they were interested in
organizing." Around the same period, evidently to
explain the general procedure to the employees, the
union representative stated, at a meeting sponsored
by the Union, that "he would write a letter to the
Company saying they [the Union] had a majority of
the people that signed cards [and] ... if the Com-
pany did not believe it was true that a majority of
the employees wanted to be represented by the
Union, he would show the cards to the Company so
they could see them and validate the signatures."'
The authorization cards that the employees
signed during the union organizing campaign read:
255
In the opinion of Examiner, there can be no doubt
of the meaning of the cards since the wording is
both simple and clear.
The following employee witnesses identified the
cards that they had individually signed on the dates
shown: Riley, July 22; Krupa, July 29; Webber, July
22; Goupill, July 22; Cline, July 22; Every, July 23;
Trail, July 25; O. Kanitz, July 22; Smith, July 22.
Employee Riley testified that on July 22 during
lunch hour, in the ladies' restroom at the plant, em-
ployee Margaret Smith handed out union authoriza-
tion cards to female employees who were present.
Riley received three cards, one of which she filled
out and signed, supra. Riley, later on the same day,
gave the other two cards to Avery whom Riley re-
lieved on her job when it was time for Avery's
lunch period. Riley testified, without contravention
and credibly, that she saw Avery sign her card and
Avery handed it to Riley on July 22. The extra card
given to Avery by Riley was for Wood, who had the
same job as Avery but on a succeeding shift.
Although Riley did not see Wood sign her card,
Wood herself gave her card to Riley and the card
was filled out and signed when handed to Riley.
Both the cards of Avery and Smith are dated July
22 and bear what appear to be genuine signatures.2
The Examiner regards the cards of Avery and
Wood, as well as the nine employees previously
referred to above, as valid union authorizations.
Authorization to UAW
Date.... .... ....
. ... . . . ....... ............... authorize UAW to represent me in collective
Print Name bargaining.
................................................................................
Address-No. Street City Phone No.
.................................................................... .
Class of Work Hourly Rate Clock No. Dept. No. Shift
Employed By ....... ................................. ............................
Company Address
.............oy.ee..............
Signature of Empl
(over)
The reverse side of the card read:
This card will be used to secure recognition and collective bargaining for the purpose of
negotiating wages, hours, and working conditions.
------------- --------- -- - -- -- - - - - - -- - - ---
YOU HAVE THE RIGHT UDER FEDERAL LAW TO ORGANIZE AND JOIN A UNION
----------------------------------------------------------------------------
By joining the UAW-AFL-CIO you have the support of one of the world's largest Unions.
' Krupa , a Teflon molder at the plant , gave the foregoing uncontroverted other writing although it is apparent that the Company must have had
testimony regarding the union representative 's statement at the meeting . documents in its files bearing signatures of its employees
' No evidence was offered to contest the genuineness of the signatures or
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Every, in addition to identifying his
own card, dated July 23, above, testified that he
gave a card to another employee , Burgess. A few
days later Burgess handed his completed card to
Every and Every identified the card at the hearing.
The Burgess card is dated July 25. Every also gave
some cards to employee Schwartz for distribution.
Subsequently, employee Kuntz handed a filled-out
card to Every. The latter identified the card at the
hearing as that which bears the signed name , Luella
K. Kuntz, dated July 2 3. We reiterate, with respect
to these two cards, our observation , above , regard-
ing the cards of Avery and Wood, and we find the
Burgess and Kuntz cards to be valid designations of
the Union.
Employee Otis Kanitz testified that he gave a
card to his cousin , employee William Kanitz, telling
the latter that if he was interested in organizing to
fill it out and sign it . Subsequently , William Kanitz
returned his card to Otis Kanitz . Otis Kanitz
testified that he was sure that no cards returned to
him were blank or unsigned . William Kanitz ' signed
card is dated July 28. Otis Kanitz testified to sub-
stantially the same effect as above regarding the
cards of employees Rathbone (card dated July 22);
Waltz (July 23); Canine (July 22); and Thornton
(July 22). The cards of William Kanitz, Rathbone,
Waltz , Canine , and Thornton are in our opinion,
for reasons previously stated , valid union authoriza-
tions.
Margaret Smith , an employee , testified that on
July 22 she had a supply of authorization cards. In
the ladies ' restroom at the plant , on the morning of
July 22, she told named employees that she "had
the organization cards and that they could get them
at noon ." Smith gave cards to employees
McKeever, Southward, Bevier, Van Loon, and
Hudson , inter alia, in the restroom on July 22. Each
of the foregoing individuals signed a card and
handed it back to Smith on that occasion. Smith
glanced at the signed cards as they were handed to
her, placed them in her purse , and looked at them
when she arrived home that evening . She testified
that all these cards had been filled out and signed.
Smith identified the cards at the hearing.
McKeever's card is dated July 22; Southward, July
22; Bevier, July 22; Van Loon, July 22; and Hud-
son, July 22.
Later , in the afternoon , on July 22, Smith, in the
restroom, gave a card to Cathelene Smith. The
latter subsequently returned the card to Margaret
Smith in the restroom and Margaret Smith ob-
served that it was filled out and signed . Margaret
Smith identified the card at the hearing . It is dated
July 28. Margaret Smith 's testimony is to the same
effect regarding the card of Margaret Markgraff,
which is dated July 26, and the card of Imogeny
Oyer, dated July 27. For reasons previously stated,
the Examiner finds the cards of McKeever,
Southward, Bevier, Van Loon, Hudson, Cathelene
Smith , Markgraff, and Oyer to be valid union
authorizations.
In addition to testimony aforedescribed, Mar-
garet Smith testified that she kept the cards that she
received in her purse which was constantly in her
possession . She then gave the cards to Kanitz.
Every testified that he promptly gave any signed
cards that he received to Kanitz. Kanitz testified
that he kept signed cards that he received in his
toolbox at work and then took them home and
mailed them to Union Representative Dovelle.
In addition to the 26 valid cards that have been
described, there is the card of Shirley Yoakum.
Margaret Smith testified that she gave a card to
Yoakum at the time she gave cards to Cathelene
Smith, Trail, Oyer, and Markgraff. Yoakum's card,
completed, signed, and dated July 26, was returned
to Smith by an unidentified female employee who
purportedly found it in the restroom. The General
Counsel stated at the hearing that Yoakum " is una-
ble to be here as a witness for personal reasons." At
the General Counsel 's request , Respondent
furnished Yoakum 's termination slip, dated April
20, 1967, from the Company's files. The slip bears
Yoakum's signature . A comparison of this signature
with that on the union card dated July 26, 1966,
leaves no doubt in the Examiner 's mind , albeit he
does not purport to be an expert in the field of
handwriting, that the two signatures were written
by the same person. Notwithstanding this fact, we
regard the circumstances of what can reasonably be
regarded as the signatory's nondelivery of the card
to the Union, or to its representative, or to anyone
else for that matter , as casting an ambiguity over
the validity of this card as a designation of the
Union. The matter is arguable both ways but we do
not count Yoakum's card as a valid designation of
the Union.
Another aspect that we have considered before
arriving at a conclusion that the Union had 26 valid
cards authorizing it to act as the collective -bargain-
ing representative of the signatories of the cards is
as follows:
As previously mentioned, the union representa-
tive, Dovelle, stated at a meeting that the
procedure was that he would write to the Company
stating that a majority of the employees had signed
union authorization cards . He also said that if the
Company did not believe this assertion he could
show the cards to the Company and afford the
Company the opportunity to verify the signatures
on the cards.
Since it is fairly obvious in any union campaign
that there is no certainty, one way or the other, as
to whether an employer will recognize a union on
the basis of cards or on any voluntary basis, the
possibility of a Board election is present . There is
no reason to regard the word "election " as a legally
unmentionable topic and it was not regarded as
such in the instant case. Dovelle did refer to the
topic of an election in a conversation with Kanitz.
Dovelle said that "to hold an election," the Union
should have more than a majority , about 60 per-
cent , of the employees signed up in the Union.
THE MATHER COMPANY
However , it is clear from Dovelle 's speech at the
meeting that the primary purpose of the cards was
to have a majority of the employees sign them,
designating the Union as their bargaining represen-
tative , so that the Union could request and, hope-
fully, secure recognition as bargaining agent from
the employer on the basis of having signed cards
from a majority of the employees . Indeed, when
Dovelle gave Kanitz the cards for distribution he
told the latter " to hand them out and have the peo-
ple sign them if they were interested in organizing
[interested in organizing themselves into a union;
interested in having a union represent them as bar-
gaining agent]."
The cards themselves are unmistakably clear and
evidence adduced on cross -examination of some
employees by Respondent , in our opinion , does not
alter the unambiguous significance and meaning to
be attached to any employee 's act of signing such a
card.
Kanitz testified that when he gave out the cards
to employees he told them that "if they were in-
terested in organizing to fill it out ; fill out the card
and sign it and give it back to me ." On cross-ex-
amination , Kanitz ' attention was called to an af-
fidavit of his in which he said that he did not know
and did not know "to this day" how cards are
..used to secure an election ."3 He said, in the af-
fidavit , that several days after he had passed out
cards and, at a time when most of the signed cards
had been returned to him , many employees
discussed the union subject with him. The affidavit
stated , that he , Kanitz , did recall saying , on the sub-
ject of an election , that a majority of signed cards
would have to be secured to have an election.4
On cross-examination , employee Riley was
asked , "What was the card [the union authorization
card] for?" She answered , "To authorize for the
union that we wanted representation by the UAW."
She was also asked , "What was told to you?" and
answered , "That we wanted to get a union to
represent us." The witness was asked specifically
what was said in the ladies ' restroom and the
3 Kanitz was a rank -and-file employee . There was nothing in his
testimony or in his demeanor that impressed the Examiner that he pos-
sessed any sophistication in labor law procedure or labor law matters. His
knowledge in this area was quite apparently of a limited nature.
' Respondent 's counsel followed this procedure : he secured Kanitz ' affir-
mation that the latter had signed the affidavit; counsel would then indicate
a particular portion of the affidavit to the witness and ask him to read it into
the record ; the witness would do so ; then the same procedure would be fol-
lowed as to another section of the affidavit. Thus,
0. How about this one here?
A. [reading from the indicated portion of the affidavit] I might have
told Smith and Every , when I gave them the cards, that the cards
would be used for holding an election , but I cannot remember that I
did. I feel that I may have.
The topic , statements made by Kanitz to employees, was thereupon aban-
doned and counsel went on to another topic . Initially , on cross-examina-
tion , Kanitz denied that he told anyone that the cards "were to hold an
election ." He then was asked to read portions of his affidavit as described
above . He was not asked to affirm or deny his testimony or the portions of
the affidavit which he read into the record at counsel 's request and he did
neither . On redirect examination by the General Counsel with reference to
Kanitz ' statements on cross -examination wherein he read from his affidavit
257
answer was that Margaret Smith said , "They were
trying to get a union to represent us."5 Employee
Goupill testified that Smith said at the time that she
did not have to sign the card but that the Union
would represent the employees if it won an elec-
tion.
Respondent , in its brief, refers to the testimony
of Goupill , above, and the testimony of Every. The
latter testified that Kanitz gave him a card in the
plant which he took home and read . Every then
filled out and signed the card at home and returned
it to Kanitz. The card was signed on July 28. In
September , Every was made a foreman . Also in that
month , when he was a foreman , Every stated in an
affidavit that Kanitz had told him that " if we signed
the card it would give the union a better idea of
who was interested in getting a union at the plant."
According to Every, Kanitz also stated that "if
enough people signed cards ," they could vote on
the Union in an election.
It is Respondent 's contention that there was
misrepresentation by the Union and employee or-
ganizers and that the employees were told "that the
purpose of signing the cards was to get an elec-
tion."
The Examiner has set forth the evidence as to
statements made by Dovelle , Kanitz , and Smith. We
will not repeat this evidence other than to refer to
Dovelle 's statement at a union meeting and the
evidence of Kanitz , Smith , Riley, Goupill, and
Every . It is our opinion that the basic theme
throughout the organizing and to the employees
was that if you wanted to organize and to have a
union represent you at the plant , you signed a card.
Conversely , those who did not want to organize, did
not sign cards.6
While Dovelle stated that recognition would be
sought from the Company on the basis of a majority
of signed cards (and the Union did make such a
request to the Respondent on July 28, shortly after
securing signed cards from a majority ), the possi-
bility or the need of resorting to an election was un-
doubtedly present . There are few organizing situa-,
regarding statements about an election , the witness was asked, "Were these
questions asked of you [by employees] before you gave the card to an em-
ployee, or at the time you gave the card to the employee , or were they
asked after the cards had been signed . A. They were asked after the cards
were signed." On recross examination-
0. Can you swear that you only talked about these cards being used
to obtain an election after most of them were signed?
A. Yes, I can swear to that.
Kanitz said that he might have talked to his cousin , William Kanitz, about
an election beforehand but on further redirect examination he stated that
at the time he gave the card to William Kanitz he told him that " if he was
interested in organizing to fill it out and sign it." Still on recross examina-
tion, Kanitz affirmed that statement in his affidavit to the effect that, in the
next few days after he had distributed cards , many employees spoke with
him and he told some of them that to have an election a majority of signed
cards was necessary.
' The reference to the restroom was a reference to activity in that room
on July 22 when Smith gave cards to about eight female employees , includ-
ing Riley and Goupill , both of whom, among others, signed cards at that
time and returned them to Smith.
s Of 40 employees in the unit , apparently many did not sign cards since
only 2 6 signed cards were introduced in evidence
354-126 O-LT - 73 - pt. 1 - 18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions where the election route can be ignored. An
election was mentioned by various people as we
have described previously. Cards are used in such
connection. But in our view of the evidence, par-
ticularly because of the clear, simple language of
the cards themselves, the employees understood
that signing a card was a designation of the Union
to represent the signers for collective-bargaining
purposes. The mention of an election was not a
misrepresentation and no one was told that signing
a card signified only a desire for an election. Ac-
cordingly, we find that, as of July 28, 1966, the
Union had valid designations from 26 employees in
an appropriate unit of 40 and that the 26 cards
designated the Union as the collective-bargaining
agent of a majority of the employees in the unit.
By letter of July 28, 1966, the Union wrote to the
Respondent, stating that a majority of the em-
ployees in the appropriate unit had designated the
Union as the exclusive bargaining representative.
The Union requested a meeting for collective bar-
gaining and also offered to prove its majority by
having the signed cards verified by a mutually
selected third party. The Respondent replied by
letter of August 1, 1966, stating:
We acknowledge receipt of your letter dated
July 2 8, 1966. We cannot recognize you as
bargaining representative until your represent-
ative status is established by the National
Labor Relations Board.'
It is apparent from Respondent's letter of August
1, set forth in full above, that Respondent refused
recognition to the Union on the sole ground that
the Union had not been certified by the Board pur-
suant to an election , or, stated otherwise, the
Respondent refused recognition until the Union
had itself certified by the Board in an election.
The Act, of course, could have provided that an
employer is under no legal obligation to recognize
and to bargain with a union as collective -bargaining
agent unless the Union has first been certified in a
Board election . The law as presently written and in-
terpreted , however , imposes no such requirement.
The representative "designated or selected for the
purposes of collective bargaining by a majority of
the employees in a unit appropriate for such pur-
poses , shall be the exclusive representative of all
' By letter of August 1, 1966, the Union stated to Respondent the names
of 10 employees whom the employees in the unit had selected as an Or-
ganizing Committee Again , by letter of August 3, the Union informed the
Respondent of the names of 16 additional employees who were acting as
organizers for the Union . Two more names were added in a letter of August
9
Sec. 9( a) and Sec 8(a)(5) of the Act
" N L R B. v. Trimfit of California, Inc, 211 F 2d 206, 209
10 See also Joy Silk Mills, Inc , 85 NLRB 1263, 1264, enfd as modified
185 F 2d 732, 741 (C A D C ), N L R B v Southeastern Rubber Mfg. Co ,
Inc, 213 F 2d I I (C A. 5), United Mine Workers of America v Arkansas
Oak Flooring Co , 351 U S 62, 74-75, N.L.R.B v Elliott-Williams Co , 345
F2d460(CA.7)
11 The limited nature of the qualification is borne out by the statement of
the employees in such unit for the purposes of col-
lective bargaining ," and it is a violation of the Act
"to refuse to bargain collectively with the represent-
atives" so designated or selected.'
The terms of the Act, being as described above,
could have been interpreted as follows: When a
union claims to represent a majority of the em-
ployees in an appropriate unit and requests recogni-
tion and bargaining from an employer, the latter
refuses recognition and bargaining at his peril, if, in
fact, the Union does represent a majority by reason
of its "designation or selection" for bargaining by a
majority of the employees in the unit.
The Board and the courts, however, have
qualified the interpretation of Section 9(a) and
Section 8 ( a)(5) in one respect. In the light of the
statutory language itself in these two sections of the
Act, as explained hereinabove, it is evident that
neither the Board nor the courts were at liberty to
depart very far from the plain language of the Act.
They have, over the years, imposed one qualifica-
tion, to wit, that, if an employer has a good-faith
doubt as to the union's majority, he may refuse to
recognize the union until its claim is certified by the
Board in an election. As well expressed by the
Court of Appeals, Ninth Circuit,' in language par-
ticularly pertinent to Respondent's refusal of recog-
nition on August 1 in the instant case:
Respondent contends that it had no duty to
bargain until the union had established its
majority status in a Board election. There is no
absolute right vested in an employer to de-
mand an election .... If an employer in good
faith doubts the union's majority, he may,
without violating the Act, refuse to recognize
the union until its claim is established by a
Board election. A doubt professed by an em-
ployer as to the union's majority claim must be
genuine . Otherwise the employer has a duty to
bargain and may not insist upon an election. 10
We again reiterate that the statutory obligation of
Section 9(a) and Section 8(a)(5) permits but
limited qualification and that qualification has been
restricted to the situation where the employer has a
good-faith doubt of the union 's majority and refuses
recognition for that reason.[' We view the Board's
the Sixth Circuit Court of Appeals to the effect that "good faith is not
available as a defense to a charge of refusal to bargain where the refusal is
based on an erroneous view of the law" (Old King Cole, Inc. v. N.L.R B.,
260 F 2d 530, 532 ), and an employer' s good faith but erroneous belief that
the unit requested by a union is inappropriate (United Aircraft Corporation
v, N L.R.B., 333 F 2d 819, 833 (C A. 2), cert. denied 380 U S 910;
Florence Printing Co v N L.R.B., 333 F 2d 289 (C A 4)), or that the
union representatives were under a legal disability that prevented them
from binding the union (N L.R.B. v. Burnett Construction Co , 350 F.2d 57
(C.A 10)), or that its employees were independent contractors (N L R B.
v Keystone Floors, Inc , dlbla Keystone Universal Carpet Co , 306 F 2d 560,
564 (C.A. 3)), does not constitute a valid defense to a refusal - to-bargain
complaint, where the record otherwise establishes that the union is the
duly designated representative of the employer's employees.
THE MATHER COMPANY 259
decision in the Serpa case 12 as a clarification of the
burden of proof, to wit , that it is the General Coun-
sel that has the burden of proving that the employer
did not act in good faith or acted in bad faith. 3
If language is to receive the normal and obvious
construction , Respondent refused to recognize and
to bargain with the Union on August 1 because the
Union had not been certified by the Board. For
reasons previously stated , including citation of the
Act and pertinent decisions , there would appear to
be a violation of Section 8(a)(5) of the Act on Au-
gust 1 since the Union represented a majority in the
appropriate unit as of that date . However , perhaps
if we explore , in the light of the evidence, why
Respondent took the foregoing position, we may
perceive something that would render the stated
refusal to recognize less untenable as a legal
defense.
The General Counsel and the Union assert that
Respondent refused recognition to the Union in
order to gain time to undermine the Union and to
defeat it in an election that the Respondent was
requiring as a prerequisite for recognition.
Prescinding from these allegations , we shall, ar-
guendo, construe the evidence of Respondent's con-
duct , subsequent to its August 1 refusal to recog-
nize the Union , in the light most favorable to
Respondent.
Admittedly, after refusing recognition to the
Union , Rutter , Respondent 's controller and person-
nel man , and Wachle , the general manager of the
plant , made plans to talk to all the employees in-
dividually about the subject of having a union in the
plant . 14 The plan was put into operation but, after
calling in a number of employees to their offices
and talking to them about the Union , further inter-
views were discontinued on the advice of counsel.
However , the least that can be said about the plan
and the interviews that did take place was that an
effort was made to persuade employees that they
should not have union representation at that time.
That was the purpose and intent of the plan and its
activation .'' It scarcely comports with a good-faith
doubt of majority , a defense raised belatedly at the
hearing . The effort was made to persuade em-
ployees, including those who had signed cards, to
abandon the Union so that , presumably, in a sub-
sequent election , that the Respondent had, in ef-
fect , demanded as condition for recognition, the
Union would be defeated.1e
Even on our foregoing assumption , arguendo,
that Respondent simply engaged in legitimate per-
suasion, this conduct does not obviate the refusal to
bargain of August 1. The law does not provide that
an employer may refuse recognition to a majority
union and demand an election and certification so
that the employer may have time to campaign, even
by legitimate persuasion , against the union among
its employees. Yet this, in the light most favorable
to Respondent, is what the evidence shows to be
the fact in the instant case. If Respondent went
beyond legitimate persuasion and engaged in illegal
interrogation and threats in the period after August
1, its position is even less defensible. But for
present purposes we have sought to demonstrate
the legal untenability of Respondent's position even
with respect to its own contention that it engaged in
no more than peaceful persuasion among em-
ployees with respect to not having union represen-
tation.
It was at the instant hearing that Respondent
stated that it had a good-faith doubt of the Union's
majority when the Union requested recognition. No
such assertion had been made to the Union at the
time Respondent refused recognition on August 1,
1966, and the refusal of recognition at the time was
not premised on good-faith doubt.17
We shall, however, proceed on the assumption
that the General Counsel has the burden of proof to
demonstrate in the record that Respondent did not
have a good-faith doubt of the Union's majority on
August 1 and that, in refusing recognition, Respon-
dent acted in bad faith.
As indicated, Respondent raised its good-faith
doubt-of-majority defense at the hearing. Thus, the
following was adduced by Respondent's counsel in
questioning his witness Rutter , the plant controller
and personnel man:
Q. Did you have a good-faith doubt as to
their [the Union's] majority status at that
time? [August 1, 1966]1 [objections by the
General Counsel and the Union to the question
were overruled]
THE WITNESS: Yes, I did.
Q. Why?
A. Number one, this [the July 28 letter of
the Union claiming to represent a majority and
requesting recognition ] is the first that I really
knew of any union activity , and I was
somewhat surprised. I didn 't know a small
plant like ours-first of all, I didn't think the
union would even be interested . Secondly, I
'Y John P. Serpa, Inc., 155 NLRB 99
A refusal to recognize and to bargain with a union designated or
selected by a majority is, as we read the Act, a violation of Secs 8(a)(5)
and 9(a) of the Act except in the well-established and long-accepted situa-
tion where there is a good-faith doubt as to the union's majority by the em-
ployer.
14 Straits, the production manager, also interviewed employees in his of-
fice on the union subject.
1' The General Counsel and the Union contend that there was illegal in-
terrogation and threats but we are assuming , arguendo, only legitimate per-
suasion, which is Respondent's contention.
The most common approach to individual employees was not , whether
they had in fact designated the Union as bargaining representative-this
was apparently known and assumed -but, "why do you want a union."
" Cf Polish National Alliance v. N L.R.B, 136 F.2d 175, 181 (C.A. 7),
affd . 32 2 U S. 643, where the Court observed , " it seems an employer is in
an unfortunate position in attempting to justify before the Board its refusal
to bargain for a reason that apparently did not occur to it prior to the time
of the hearing ." In Bernard S Happach v. N.L.R.B., 353 F.2d 629 (C.A. 7),
the court held that an alleged good-faith doubt , not expressed at the time of
the refusal to bargain , was not available to an employer as a defense to an
8(a)(5) complaint (fn. 7 of the Decision).
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
felt our people were fairly well happy, and as
we were progressing we were doing what we
could for our people.
The foregoing , which is the sole evidence ad-
duced to support the contention that, on August 1,
when Respondent refused to recognize the Union,
it had a good-faith doubt of the Union's majority, is
unconvincing . While it may be the fact that
Respondent in good faith was surprised that the
Union had engaged in organizing Respondent's em-
ployees and was claiming that it represented a
majority; that Respondent "felt our people were
fairly well happy"; and that Respondent felt that it
had been doing what it could for its employees,
these factors, individually or collectively, do not
establish Respondent 's contention that it had a
good-faith doubt of the Union's majority. It is our
opinion that Respondent , on August 1, in rejecting
the Union 's bargaining request for the foregoing
reasons or because it believed that it could refuse
recognition until the Union had been certified, vio-
lated Section 8(a)(5) and (1) of the Act.
Subsequent to its refusal to recognize the Union,
above, Respondent received two additional letters
from the Union. The first reiterated the claim of
majority and then enumerated the names of 10 em-
ployees who had been selected as the union "Or-
ganizing Committee ." At the hearing , Respondent's
counsel asked Rutter whether he had received the
foregoing letter. The answer was affirmative. The
witness was then asked whether at that time he had
a good-faith doubt of the Union's majority.
A. Sure. There were only ten people, and we
had-I think it is in the record-forty or
something like this that were eligible in the
unit.
The Examiner is unable to understand how the fact
that there were only 10 employees on the Organiz-
ing Committee would give rise to a doubt of majori-
ty in the unit. The letter made it clear that: (1) a
majority of employees in the unit had designated
the Union as bargaining representative ; ( 2) that 10
named employees were on the Organizing Commit-
tee; (3) (being the evident purpose of naming the
members of the Committee) to wit, "The afore-
mentioned persons and others ... are protected by
Section (7) of the Labor Management Relations
Act . [against interference or discrimination
because of their union activities]."
The next letter from the Union to Respondent,
dated August 3 , repeated the preceding letter's
contents, including the 10 employees on the Or-
ganizing Committee , plus the names of 16 other
employees described as "in-plant organizers."
After receipt of the August 3 letter, Rutter
testified that he went to employee Rathbone in the
plant and spoke to him because Rathbone had been
listed in the August 3 letter as an " in-plant or-
ganizer." Rutter said to Rathbone , "Roy, I hap-
pened to notice your name on this list and I was
rather shocked you would be in this group ." Rutter
states that Rathbone "indicated to me " that he had
signed a card because he wanted to get along with
his fellow workers and not antagonize them. It is
apparent that Rutter opened the conversation by
manifesting his shock and evident disapproval of
Rathbone 's association with the Union . Either in
response to such an approach or because Rathbone
was expressing his own feelings , the latter
responded as described. It is a fact that certain peo-
ple buy a new car, a color television, or go on
strike, or vote for a particular political candidate or
party, not solely because of some objective per-
sonal analysis of their own needs or belief but
because they are in some degree affected by what
their relatives , friends , coworkers , business as-
sociates, customers, and so forth do and say. The
desire to go along with peer groups is not unusual
and is a factor in human motivation. Such factors
are also present in elections , political or otherwise.
There is no evidence that Rathbone did not read his
card before signing or that he did not understand it
or that he was threatened or coerced. He signed his
card on July 22, the first day of card signing in the
union campaign, when it would seem that any pres-
sure to conform would have minimal impact. His al-
leged indications of motive were disclosed to Rutter
only after the latter had sought him out and had
first stated his, Rutter's, surprise and shock that
Rathbone had associated himself with the Union. In
any event, an employee's subjective thinking , in sig-
ning an authorization card clear on its face, is not
determinative.
Another employee named in the Union's August
3 letter as an " in-plant organizer " was William
Kanitz. Some time after August 3, Rutter ap-
proached this employee and spoke to him as he had
spoken to Rathbone, namely, expressed shock that
Kanitz was associated with the Union. Rutter states
that the employee told him that he believed, when
he signed the card, that it would lead to an election
and people could vote for the Union if they wanted
it.
Based on these conversations with Rathbone and
Kanitz , Rutter states that he had a good-faith doubt
of the Union 's majority. We regard the circum-
stances , aforedescribed , as not affecting the fact
that these two employees had voluntarily signed
union authorizations , clear on their face , regardless
of what the two employees , in response to Rutter's
tendentious statements to them, stated their subjec-
tive beliefs or feelings to be . They did not deny hav-
ing signed cards . Moreover , it is clear that whatever
professed doubt Rutter had as a result of these con-
versations, it did not arise until after August 3. This
was, of course , after Respondent , on August 1, had
refused to recognize the Union.
Respondent having refused to recognize the
Union , as described hereinabove , the parties, on
August 19 , 1966, entered into an agreement for the
Regional Director of the Board to conduct an elec-
tion on September 9, 1966.
In the interim , from its refusal to recognize the
Union on August 1 and the date of the scheduled
THE MATHER COMPANY
election , September 9, Respondent engaged in the
following activities:
Production Manager Straits , who had hired em-
ployee Webber on July 16, 1966, summoned her to
his office about July 20. He told her that she was to
receive a merit wage increase . 18 Straits then asked
her if she had any "gripes ." She said , no, and
Straits then said , "Well, why do you want a union,
then?" Webber said it was because she wanted
more money . Straits thereupon discussed the
matter of wages with her. A few days later,
Foreman Watkins asked Webber , "What gripes or
complaints do you have about the plant ? ... why
are you wearing the [union ] button , because you
want to , or just to go along with the girls?" Webber
replied that it was because she wanted to . Watkins
said that later on there would be more raises for
everybody and conditions would be better at the
plant.
It is evident that Straits had no doubt that
Webber wanted the Union in the plant (". . . why
do you want a union , then?"). Webber signed a
card on July 22, and was named as an in-plant or-
ganizer in the Union 's August 3 letter to Respon-
dent . The incident has a bearing on Respondent's
prior refusal to recognize the Union since,
thereafter , it can at least be said , as we have previ-
ously observed , that Respondent started question-
ing union adherents as to why they wanted the
Union , being apparently aware that such employees
did in fact want the Union.
In the middle or latter part of August , employee
Riley was told by her foreman that she was wanted
in Rutter 's office . When she arrived , Rutter said,
"we know why we both are here." He then told her
that the Company "wasn't ready for a union as
yet." The incident indicates an employer campaign
to undermine the Union . Rutter was aware at the
time that Riley was on the Union 's Committee and
the evident and only purpose of his remarks was as
we have stated above.
Around the same period in August , Foreman
Watkins asked employee Goupill why she wanted a
union and what her complaints were . 19 He told her
of another plant where the people had secured a
union and afterwards they worked just as hard and
were paid the same as prior to the union.
About August 12, employee Cline was sent to
Rutter's office when her foreman told her that the
latter wanted to see her . Rutter asked her why she
wanted a union and said that the Company was too
young to have a union and could not afford a
union . He said that sometime in the future a union
might be all right . On September 8, the day before
the election , Foreman Watkins spoke to Cline who
was wearing a "vote UAW" button . Watkins said,
"What is a nice girl like you wearing a dirty button
" The General Counsel expressly stated that this and other wage in-
crease matters are not alleged to be illegal in this case.
11 Goupill had been listed as an "in-plant organizer" in the August 3
letter to Respondent.
261
like that for? . . . You just wait. This company is so
great if this union doesn 't get in Monday morning
you will get a raise, you will all get a raise. 1120 We
repeat our observation, that Respondent embarked
on a campaign against the Union after having
refused recognition of the Union until an election
was held and the Union was certified.
Employee Krupa, in the same period, was told by
his foreman that he was wanted in Rutter 's office.
Rutter asked why he wanted a union.21 Rutter said
that he felt that the Company did not need a union
as yet and that a union would not be helpful
although eventually a union might be all right.
Rutter then took Krupa into the adjoining office of
the plant 's general manager . The latter discussed
with Krupa the subject of a raise which Krupa had
indicated was due him.
About 2 weeks before the election, employee
Every was called to Straits' office about a raise.
Every's foreman and Straits were in the office.
Straits asked Every if he could think of any reason
why the employees wanted a union. This incident
adds emphasis to the fact that Respondent ap-
parently was convinced that the employees did
want a union albeit Respondent had refused to
recognize the Union.
Rutter testified that on various occasions in Au-
gust, he did speak to employees in his office on an
individual basis. Among the employees thus spoken
to were Cline, Krupa, Riley, and Althoff. He
testified that the question of union organization in
the plant was so important that he felt it necessary
to speak to the employees . In speaking to the em-
ployees, Rutter testified, that "my main point was
that we would lose the needed flexibility that we
had in a small plant such as ours" if the Union
came in. Rutter states that he explained to the em-
ployees in the interviews that, currently, in the
plant without a union, the Company did not lay off
employees if there was a shortage of work in a de-
partment ; instead of a layoff in the foregoing situa-
tion, the Company would transfer employees to
another department; but, if a union came in, Rutter
told the employees, it was his experience that the
Union would seek or have contractual departmen-
tal seniority and "we [the Company] could not
transfer people, then we could have no other
choice than to lay them off." Rutter states, "I
asked them [the employees] to carefully consider
this."
Rutter and Straits did not deny the testimony of
the employees, described previously. Watkins did
not testify. We credit the testimony of the em-
ployees and we credit Rutter in that we find that he
also said to the employees what has been described
above as his testimony.
We believe that Rutter's testimony establishes
"The General Counsel reiterated that the matter of raises was not part
of the allegations against Respondent.
" Krupa was on the Organizing Committee and was named as such in the
union letters to Respondent dated August 1 and 3
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he told the employees, in substance, that
without a union there were and would be no layoffs
when work was slack in a department, but that the
advent of a union would mean, if the Union secured
the contract it desired, that there would be strict
departmental seniority, which, in turn, would
prevent the Company from making interdepartmen-
tal transfers and would require layoffs instead. The
fact of layoffs in slack periods, as contrasted with
the existing situation , was stated as a substantially
definite prospect, if the Union came in. Obviously,
Respondent, being the employer, would have to ac-
tively participate in the decision and the act of lay-
ing off employees instead of transferring them to
other departments in slack periods . As presented by
Rutter , Respondent would do all the foregoing if a
union came in . Stated with such definiteness and
with virtually imperceptible or no qualification, an
economic detriment was thus presented by Respon-
dent to its employees if they adhered to the Union
and brought it into the plant as their bargaining
agent 22 We consider the foregoing presentation to
the employees to be a violation of Section 8(a)(1)
of the Act.
As to the various incidents , previously described,
of employees being individually ordered to manage-
ment's office and there being asked why they
wanted a union, we regard Respondent 's conduct as
follows : Respondent was not engaged in a simple
inquiry to determine whether the Union did
represent its employees and whether Respondent
should therefore recognize the Union . Respondent
had already refused to recognize that the Union
represented a majority of its employees . Further,
Respondent knew that the people it called to its of-
fice were union adherents since its questions were
not whether the individuals had joined the Union,
but why they had done so. In the circumstances, a
question from management to an individual em-
ployee as to why he or she wanted the Union is a
good deal more than a academic search for infor-
mation ; and it certainly is not the expression of
opinion under Section 8 (c) of the Act. Since
management has stated its opposition to having a
union at the time , the question , why do you want a
union , immediately places the employee on the
defensive and called upon to explain or justify to
management his or her union adherence . If Section
7 or Section 8(a)(1) of the Act , in providing that
employees may or may not join unions or engage in
union activities without "interference " from the
is Rutter testified that "there had been no layoffs whatsoever" in the
plant since he had been there , since August 1965 . Assuming, arguendo, that
Rutter could so confidently predict what terms the Union would ask for in
this plant or what terms it would secure in a contract to which the Com-
pany would have to agree , departmental seniority would not result in
layoffs in a plant such as this with "no layoffs whatsoever " The latter situa-
tion indicates no overall lack of work . Departmental seniority comes into
play when there is a lack of work in one department , X, and a vacancy in
another department , Y. A has worked for the Company 5 years in depart-
ment X but there is now a lack of work for him in X and he is the junior
man in X . However , B had worked 4 years in Y and had previously been
employer, mean what they say, we believe that
Respondent was interfering with the free exercise
of these rights. The signing of a union card or join-
ing a union is peculiarly a matter for the employee
and it includes a reasonable degree of privacy. The
Act, in our view, does not contemplate that the em-
ployee be called upon by the employer to justify
such action to the employer. Regardless of how an
individual employee may answer such question,
either forthrightly or by hedging (e.g., I only signed
a card because I wanted to be a good fellow as far
as my fellow workers were concerned), no one can
say that the natural inhibiting tendency of such
questions will not have their eventual intended ef-
fect of undercutting union adherence. We are of
the opinion that such conduct is violative of Section
8(a)(1) of the Act. Under the circumstances, we
also believe that such statements, as why is a nice
girl like you wearing that dirty (union) button,
merits the same comments and conclusion. An em-
ployee may wear a union button without being
placed on the defensive for doing so or be called
upon for justification. Such remarks are not simple
inquiries or searches for legitimate information;
they are virtual indictments calling on the employee
to justify impliedly delinquent conduct, whereas, in
fact, the employee, having exercised a statutory
right, should be protected from such interference
with the right.
The election was held on September 9, 1966, and
the vote was 15 for the Union; 22 against; and 1
challenged ballot. The Union filed objections to the
election on September 15. After investigation, the
Regional Director of the Board, on December 13,
1966, issued Report on Objections, Order Setting
Aside Election, and Direction of Second Election.
As stated by Respondent 's counsel in oral argu-
ment at the close of the hearing , when Respondent
was advised, around December 14, 1966, that the
objections to the election had been upheld and that
a second election would be held, "The decision was
made as of that time" by Respondent to announce
to the hourly paid employees (who were the em-
ployees in the unit ) that, as of January 1, 1967, it
would put into effect, at its expense, new benefits,
consisting of life insurance , accidental death and
dismemberment insurance, accident and sickness
insurance ; and would increase the Company's con-
tribution to Blue Cross-Blue Shield from 25 percent
to 50 percent.23 About December 15, 1966,
Respondent distributed letters to its employees an-
laid off for lack of work Because of his departmental seniority in Y, B
would have preference over A for the vacancy in Y, despite A's overall
greater seniority But, if there was no B in the picture , and there was a
vacancy in Y, A, assuming the necessary ability, would normally be trans-
ferred to Y, even if there was departmental seniority . Why would the Union
require the employer to hire a new man from the street for the vacancy in Y
and require the layoff of A"
u In addition to the pending second election as directed by the Regional
Director on December 13, the General Counsel had issued an original com-
plaint against Respondent on December 8, 1966, alleging illegal interroga-
tion of employees in July, August , and September 1966
THE MATHER COMPANY 263
pouncing the foregoing . The program was put into
effect on January 1, 1967.
In explanation and in justification of its action in
announcing and putting into effect substantial new
and increased employee benefits while a second
election was pending , Respondent introduced cer-
tain evidence.
Southworth, a supervisor in February 1966 and
at the time of hearing , testified that in early 1966
he was the spokesman for employees with manage-
ment . In this role, in February 1966, he told Rutter
that "we needed fringe benefits " and Rutter told
him "they" were taking it up with the home office
of the Company and would see "what they could do
for us at the time." Southward states that, at the
time , he reported the foregoing to "some"
unidentified employees.
Zammit , then secretary -treasurer of Respondent
corporation, testified that in February 1966, he and
Rutter discussed the need of fringe benefits at the
plant and felt that they should be given because of
the tight labor market and also that improvements
should match the Company 's progress . Rutter states
that in March or April he told Southworth that
fringe benefits were under consideration . On April
6, 1966, Zammit wrote a memorandum to Mather,
the corporation 's president , recommending fringe
benefits for the plant . Zammit gave various reasons,
including the tight labor market, and stated, "While
the situation may not be extremely serious, we
should be sensitive to manifestations of dissatisfac-
tion and talk of 'unionism ."' This precautionary
concern about unionism, of course, occurred at a
time when the Union or any union was not in the
picture. Presumably, if a union was on the scene, as
in July 1966 and thereafter, the foregoing thinking
and motivation would have even more pertinency
on the issue of motivation for action taken at the
time a union was present.
The recommendation of fringe benefits for the
plant was rejected by the corporation in April
1966. Zammit testified that the plant was losing
money at the time and the general manager of the
plant , Wachle, had opposed instituting fringe
benefits on that ground. The corporation, accord-
ing to Zammit , decided to go along with Wachle's
position , and wait "until the financial situation
looked a little bit better."
Neither Zammit nor Rutter had talked to any em-
ployees about fringe benefits and Southworth's
testimony, above, that, in early 1966, he talked to
some unidentified employees on the subject is the
only evidence offered by Respondent that the em-
ployees were expecting the Company to inaugurate
fringe benefits. Although there is no evidence that
Southworth, the alleged conduit for information to
employees, knew anything about the situation other
than as described above, if Southworth was aware
of the situation, he would know that in April 1966
the recommendation for such benefits had been re-
jected.
There is no evidence that the financial position of
the plant was better in December than it was in
April although poor financial position was the, or
one of the , reasons for deciding not to place fringe
benefits in effect in April 1966, above. Respon-
dent's evidence, testimony of Rutter and Zammit,
indicates that the labor market was tight in Februa-
ry, March, and April 1966 when Zammit wrote his
memorandum, and evidently throughout 1966,
which would certainly include May and June, prior
to the advent of the Union. There is no showing
that, in December 1966, or in the latter part of the
year 1966, the labor market was any tighter than it
was from January to June.24
Respondent, in further explanation of the tight
labor market and the difficulty of securing skilled
male help absent fringe benefits, states that, on
January 1, 1966, it had 25 men and 14 women em-
ployees and at the end of January 1967,25 it had 24
men and 26 women. This statistic does show a
higher ratio of women to men but does not show
that the trend or the ratio was greater in December
1966 than it was in the earlier or middle months of
the year; nor does it show that the newly inaugu-
rated fringe benefits reversed the trend or had
anything to do with it. It does show a work force
expanded from 39 to 50 with one less male em-
ployee.26
However, we are prepared to conclude that there
was a tight labor market and that Respondent be-
lieved that fringe benefits would aid it in the
recruitment and retention of employees. But it is
equally true that, as early as April 1966, Respon-
dent regarded the installation of fringe benefits as a
precaution against possible unionism among its em-
ployees. In April 1966, the corporation rejected a
recommendation that fringe benefits be installed.
The plant manager, Wachle, had also opposed in-
stituting such benefits. In August 1966, another
management representative, Beers, was placed over
Wachle at the plant and, in November 1966,
Wachle left the plant entirely.
Zammit, in his testimony, sought to convey the
impression that the corporation had rejected fringe
benefits in April 1966 out of deference to Wachle
_' Generally speaking , as a matter of official notice, by at least the latter
part of 1966, economists and businessmen expressed the belief that there
was something in the nature of a sideward adjustment in the economy and
1967 was not contemplated to be a banner year. More specifically, we
again note the absence of evidence that , in December 1966, Respondent
was in a better financial position than in April 1966 when it rejected the
fringe benefit proposal
=s The transcript is apparently in error since it reads, "At the end of
January I st, 1967, we had twenty-four men.. "
16 In many plants, the complement of semiskilled employees can be ex-
panded without comparable expansion or any expansion of a nucleus of
skilled workers Skilled machinists or diecasters , who are usually male, can
produce basic tools, parts, and dies, and set up machines with which ex-
panding numbers of semiskilled employees can produce increased numbers
of products , or assemble them and so forth , plus an expanding need for
more semiskilled packaging and shipping employees
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who opposed such benefits, and that when the
latter left, the corporation instituted the fringe
benefits as it had wished to all along . This explana-
tion is less than convincing for several reasons. If,
as Respondent 's witnesses testified , the plant, from
at least February 1966, was having such a difficult
time in obtaining and retaining employees in a tight
labor market , and if this situation was a major
reason why Zammit , in April 1966, recommended
fringe benefits , it is highly unlikely that top
management , at the corporate level, would have
failed to institute fringe benefits at one of its plants
simply because the plant manager , Wachle, did not
like the idea . The fact was, as Zammit testified, that
the Milan plant was losing money, operating at a
loss, in April 1966, and it was for this reason, as
Zammit also testified , that Wachle opposed the
fringe benefit idea . The corporation then rejected
the recommendation of fringe benefits and, in our
view of the evidence , did so because of the finan-
cial situation , with deference to Wachle on a
protocol basis being a minor or coinciding factor.
In short , the plant was losing money; Wachle "was
responsible for it [the plant] as a profit center," as
Zammit testified ; Wachle opposed the fringe
benefits ; the corporation rejected the recommenda-
tion for fringe benefits and, according to Zammit,
"it was postponed until the financial situation
looked a little bit better ." But, in addition to the
financial situation in April, the evidence indicates
another reason why the recommendation for fringe
benefits may not have been successful in April. One
of the bases for Zammit 's recommendation was that
the institution of such benefits would allay or
deflect union organization of the employees. How-
ever , in April, there was no union seeking to or-
ganize the employees so the cogency or immediacy
of this reason was not compelling , particularly
when at the time there was also the aforementioned
poor financial situation.
This brings us to the question of the timing of the
announcement of the institution of new fringe
benefits on December 15, 1966, when a second
election was pending . The General Counsel asserts
that the matter was timed to affect the vote of em-
ployees in the second election . Zammit was asked,
at the hearing , "why was it [ the fringe benefit pro-
gram ] instituted at that time [December 15-Janu-
ary I]?" He gave three reasons . (1) "There was a
need for the program because of the tight labor
situation and the difficulty in securing and retaining
employees"; (2) "we had told these people [the
employees ] months ago that this was under con-
sideration , and I thought we owed it to them to put
the thing in"; and (3) "we were also considering
putting in some benefits at some of the other divi-
sions , and this looked like the appropriate time to
do it."
The foregoing reasons, in our opinion, do not
adequately explain the timing of December 15,
1966. As to reason (1), there was a tight labor
situation from February 1966 and at all times
thereafter into 1967, and the difficulty of securing
personnel existed throughout the entire period. The
only evidence in support of reason ( 2) is that in
early 1966, February or March, Southworth told
some unidentified employees that consideration
was being given to instituting fringe benefits. No
employee testified that he or she had heard or knew
of fringe benefits being considered at any time or
expected fringe benefits from the Company. As to
reason ( 3), Zammit 's statement , above , is about all
we have on this aspect . The record does show that
other divisions of Respondent had the instant union
as bargaining representative and these divisions did
have fringe benefits . If Respondent was "con-
sidering " new or additional benefits at such plants,
the statement , "and this looked like the appropriate
time to do it," scarcely explains the timing of the
initial institution of fringe benefits at the Milan
plant. In the past , when the other plants were en-
joying fringe benefits , Respondent evidently felt no
need to have such benefits at the Milan plant from
1962 to 1966.
Before probing deeper into the matter of the
December 15, 1966 , timing , we can eliminate
financial condition or any change thereof at the
Milan plant . We have seen that the fact that the
Milan plant was operating at a loss in April 1966
was a , or the, major reason why fringe benefits
were rejected at that time . There is no evidence
that the financial condition of the plant changed
between April and December . Zammit does not
even mention this aspect among his three reasons,
above.
Then we come to the matter of Wachle.
Although we do not believe , as explained previ-
ously , that it was simply a matter of corporate
deference to a plant manager that led to the rejec-
tion of the fringe program in April , Respondent ap-
parently believes that the December 15 timing is
partially explained by the Wachle aspect . As men-
tioned , in August, Beers was placed over Wachle
and Wachle "instead of reporting directly to the
president of the Company was to report to Howard
Beers ," who had been made general manager of the
Respondent 's entire group of plastic products
plants . Wachle left in November.
In August to November, Wachle could scarcely
be said to be the reason for not instituting an al-
legedly direly needed fringe program . The tight
labor market was still present . And there was a
union seeking to organize the plant . In other words,
the basic reasons why Zammit had recommended
the fringe program in April now existed. Why,
therefore , did not Respondent effectuate its fringe
program . Evidently , as far as some of the period is
concerned , there was one principal reason. From
July to September 1966, there was a union organiz-
ing campaign among the employees and there was a
September Board election . Respondent states that
its counsel advised against instituting the new fringe
program because of the possibility of being charged
with unfair labor practices . In addition to the
THE MATHER COMPANY 265
foregoing , the instant decision has found that, in
August , Respondent had engaged in illegal inter-
rogation of employees to undercut their allegiance
to the Union . In any event , Respondent decided to
proceed to the election without instituting its fringe
program . This takes care of the July to September
period.
The September 9 election resulted in a vote
against the Union . Why did not Respondent then
announce its fringe program which it contends was
so urgently needed to secure employees from
February 1966 through December 1966 and
thereafter . Although Respondent has offered no ex-
planation , we will offer one that is , on its face, help-
ful to Respondent . Respondent did not institute the
fringe program in the period from September 10 to
December 13 because the Union had filed objec-
tions to the election and, if the objections were
upheld , there would be a second election . Respon-
dent , therefore , withheld instituting the program
because of the possibility of an impending second
election . The difficulty with this explanation is that,
on December 15, there was more than a possibility
of a second election ; there was a direction of a
second election that had been issued on December
13 by the Regional Director . Therefore , if the ex-
planation for the noninstitution of the fringe pro-
gram in the period from September 10 to
December 13 was the "possibility" of a second
election being directed as the result of objections to
the election that had not yet been resolved, a for-
tiori, Respondent would not institute its fringe pro-
gram when it knew definitely , on December 14,
that there would be a second election . But this is
precisely what Respondent did on December 15.
Why therefore, after the September 9 election,
did Respondent act differently in the period Sep-
tember 10 to December 13 than it did on
December 15. The tight labor market , Respon-
dent 's business reason for the fringe program, had
existed since February and certainly existed from
September 10 to December 13.
Two explanations for the foregoing occur to us.
The election vote having gone against the Union,
there was a possibility that would be the end of the
Union at the plant for at least a year , perhaps in-
definitely. 27 From the time of the filing of objec-
tions to the election by the Union , after the election
to December 13, there was a possibility that the ob-
jections would not be sustained. If the objections
were not sustained , the immediacy of the danger of
unionization of the plant disappeared . The only
reason that would remain for instituting the fringe
program between September and December was
therefore the business reason , the tight labor mar-
ket. And Respondent did not act on that basis since
it did not announce the fringe program while there
was a possibility between September and December
that the Union 's objections would be dismissed.
During the same period , there was also the possi-
bility that the objections would be sustained but
Respondent decided to wait to see which result
finally emerged. The allegedly sole business reason
motivation timing for the fringe program did not
motivate Respondent to institute its program during
this period. But, on December 13, the objections to
the election had been sustained and a second elec-
tion directed. Immediately, on December 15,
Respondent announced its new fringe program to
the employees. We find that the timing of the an-
nouncement supports and warrants the conclusion
that it was timed to affect the result of the directed
second election.
If it be said that the explanation for the an-
nouncement was that Respondent was tired of
withholding its fringe program from the employees,
the question is, why did it choose December 15.
The program had been recommended in April. We
have traced its history in detail. Why was it not in-
stituted thereafter, even December 12, before
Respondent knew that there definitely would be a
second election. It was the definite prospect of a
second election that triggered the announcement.
The first election resulted in seven more votes
against the Union than for it. A second election
might have the same or a different result . Prior to
the first election, Respondent had committed the
unfair labor practices found hereinabove. Perhaps,
in a second election , after December 15, the situa-
tion might be different , since , on December 8, the
General Counsel had issued a complaint against
Respondent alleging illegal interrogation of em-
ployees prior to the first election . The complaint
might have brought about remedial action to reas-
sure employees of their right to be free of inter-
ference on the subject of a union , or might inhibit
any further illegal conduct before the second elec-
tion was held. Under these circumstances, the an-
nouncement of the fringe benefits, before any
second election and as soon as it was known that
there would be a second election , had the manifest
intent of influencing the employees in their election
choice. We find a violation of Section 8(a)(1),
based on the timing of the announcement of the
substantial new fringe benefits.
CONCLUSIONS OF LAW
Respondent has violated Section 8(a)(1) and (5)
of the Act as found hereinabove.
The appropriate unit is:
All production and maintenance employees,
including shipping and receiving employees
and truckdrivers , employed at Respondent's
Milan , Michigan, plant , excluding office cleri-
" Sec 9 ( c)(3) ofthe Act
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cal employees , professional employees,
foremen , guards and supervisors as defined in
the Act.
(c) Notify said Regional Director , in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.29
THE REMEDY
Having found that Respondent has committed
certain unfair labor practices we shall recommend
that it cease and desist therefrom and that it take
appropriate remedial action . The remedial action
for a refusal to recognize and to bargain is an order
to bargain and we shall so recommend.
RECOMMENDED ORDER
Upon the entire record in the case and the
foregoing findings of fact and conclusions of law, it
is recommended that Respondent, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees so as
to interfere with their union sympathies or activi-
ties.
(b) Refusing to recognize International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW),
AFL-CIO, as the collective -bargaining agent of the
employees at its Milan , Michigan, plant in the ap-
propriate unit of all production and maintenance
employees , including shipping and receiving em-
ployees and truckdrivers , excluding office clerical
employees , professional employees , foremen,
guards and supervisors as defined in the Act.
(c) In any like or related manner , interfering
with , restraining , or coercing its employees in the
exercise of their right to self-organization , to form,
join , or assist the above -named Union or any other
labor organization , to bargain collectively through
representatives of their own choosing , and to en-
gage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.
2. Take the following affirmative action to effec-
tuate the purposes of the Act:
(a) Upon request, recognize and bargain with the
aforenamed Union as the collective -bargaining
agent of its employees in the aforedescribed ap-
propriate unit and , if agreement on the terms of a
contract is reached , embody such agreement in a
written contract.
(b) Post at its plant at Milan , Michigan , copies of
the attached notice marked "Appendix ."28 Copies
of said notice , on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent 's representative , shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by other material.
48 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 "
Y° In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 7 , in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
As the result of a hearing at which the Company,
the Union, and the General Counsel of the National
Labor Relations Board were represented by their
attorneys and called and examined witnesses, the
Trial Examiner of the National Labor Relations
Board , who heard the evidence , has issued a Deci-
sion in which he found, among other matters, that,
on August 1, 1966, the Union did in fact represent
a majority of the production and maintenance em-
ployees, including shipping and receiving em-
ployees and truckdrivers, and although the Union
requested the Company to recognize it as the col-
lective-bargaining agent of the above employees,
the Company refused to do so on August 1, 1966.
This action by the Company has been found to be
in violation of the National Labor Relations Act in
the Decision of the Trial Examiner.
Pursuant to the Recommended Order of a Trial
Examiner of the 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:
Upon request, WE WILL recognize and bar-
gain with International Union, United Automo-
bile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, as the
collective-bargaining agent of the employees in
the appropriate unit at our Milan , Michigan,
plant . The unit includes:
All production and maintenance em-
ployees, including shipping and receiving
employees and truckdrivers, excluding of-
fice clerical employees, professional em-
ployees, foremen, guards and supervisors
as defined in the Act.
WE WILL NOT unlawfully interrogate our em-
ployees so as to interfere with their union sym-
pathies or activities.
All our employees are free to become or remain,
or refrain from becoming or remaining , members of
the aforesaid Union or any other union , except to
the extent that such rights may be affected by an
agreement requiring membership in a labor or-
THE MATHER COMPANY 267
ganization as a condition of employment, as This notice must remain posted for 60 consecu-
authorized in Section 8(a)(3) of the Act. tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
THE MATHER COMPANY, If employees have any question concerning this
FLUOROTEC DIVISION notice or compliance with its provisions, they may
(Employer) communicate directly with the Board 's Regional
Dated By
Office, 500 Book Building, 1249 Washington Bou-
levard, Detroit, Michigan 48226, Telephone
( Representative ) (Title) 226-3200.