Tiidee Products, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1969

174 N.L.R.B. 705 (N.L.R.B. 1969)

TIIDEE PRODUCTS 705
value of the minimum additional benefits, if any, including
wages, which is reasonable to conclude that the Union
would have been able to obtain through collective
bargaining with the Respondent, for the period
commencing with the Respondent's formal refusal to
bargain collectively . and continuing until paid." Such
recommended remedy seems ultimately fair and
reasonable under the circumstances of this case" and is
recommended by the Trial Examiner The compensation
shall be computed on a quarterly basis and shall bear
interest at 6 percent per annum , computed quarterly.
In that the Act envisions that industrial disputes may
be best settled by collective bargaining in good faith
between the parties and is dedicated to the encouragement
of the practices and procedures of collective bargaining,
and, since the minimum additional benefits, if any, which
it is reasonable to conclude that the Union would have
obtained through collective bargaining, with the
Respondent may be subject to future controversy, it is
recommended that the subject matter relating to minimum
additional benefits be referred to collective bargaining
between the parties in this connection the Respondent
will be deemed to have complied with this recommended
remedy when the Respondent, in good faith, makes a
reasonable offer, in which due consideration is given to
the minimum additional benefits, if any If dispute arises
as to the reasonableness of the offer, it is recommended
that it be resolved in the compliance stage of this
proceeding. Failing in such offer the Respondent shall be
held to adhere to the strict terms of this recommended
remedy.
The purpose of the recommended remedy is to
compensate for the loss of the individual worker's
bargaining power which obtained to him by reason of his
collective association and was rendered impotent by the
Respondent's unfair labor practices As noted above,
collective bargaining after employee support has been
unlawfully dissipated is an exercise in futility. Under such
circumstances the remaining "sticks" if any are easily
broken
By its unfair labor practices the Respondent deprived
its employees of the means of dealing with their employer
with a measure of equality, discouraged collective
bargaining, and rendered impotent their resort to
collective action. This was wrong for "the avowed and
interrelated purposes of the Act are to encourage
collective bargaining and to remedy the individual
worker's inequality of bargaining power. . " N L R B. v.
Hearst Publications , Incorporated, 322 U.S. III, 126.
The remedy herein recommended corrects in part that
wrong and gives vitality to the right. It serves to effectuate
the purposes of the Act which was the intent of Congress
Drawn to deal substantially with substantial things, the
National Labor Relations Act has been from the
beginning, it must continue to be, consistently with its
avowed purpose and the language employed in the Act,
broadly construed and as broadly given effect to cope
with and prevent the mischiefs it was designed to meet
and do away with
N L R B v. Metallic Building Company, 204 F.2d 826,
828 (C A. 5), cert denied 347 U.S. 911.
"Of significance is the court ' s observation in N L R B v Southbridge
Sheet Metal Works. Inc. 380 F 2d at 856 "the cynic may well observe
that respondent 's tactics have successfully held off collective bargaining for
at least three years"
Tiidee Products, Inc. and International Union of
Electrical , Radio & Machine Workers,
AFL-CIO-CIC.' Cases 9-CA-4440, 9-CA-4488,
9-CA-4536, and 9-CA-4563
February 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 28, 1968, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
cases, finding that the Respondent had engaged 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 affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Union and the Respondent
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner,' as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent
Tiidee Products, Inc., Dayton, Ohio, its officers,
'The Union has requested that the initials "CLC" be included in the
designation of its affiliation In the absence of objections , we grant its
request
The Respondent filed a motion to reopen and consolidate these cases
with Cases 9-CA-4618, 9-CA-4639- 2, and 9-CA-4710 We have considered
the Respondent 's motion and , finding no merit therein , hereby deny it As
for the Respondent's contention of bias and prejudice on the part of the
Trial Examiner , we have reviewed the record and find the contention
without merit
We find it unnecessary to pass upon the Charging Party's request that
we make certain additional 8(aXl) findings Such findings , if made, would
be cumulative in nature and would not affect the scope of our Order and
Remedy herein because we have already provided a broad cease and desist
order protecting all of the employees ' Section 7 rights
'The second paragraph of the "Appendix" attached to the Trial
Examiner's Decision is hereby amended to read as follows "This notice is
posted pursuant to an order of the National Labor Relations Board issued
after a Trial in which both sides had an opportunity to present evidence
and arguments The Board found that we violated the National Labor
Relations Act and has ordered us to inform our employees of their rights "
174 NLRB No. 103
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
and travel trailers and maintains its plant and principal
place of business in Dayton, Ohio. During the past
calendar year, the Respondent manufactured and shipped
goods and products valued in excess of $50,000 directly
from its plant in Dayton, Ohio, to points located outside
the State of Ohio On the basis of the foregoing I find and
conclude that the Respondent is an employer within the
meaning of Section 2(6) and (7) of the Act
GORDON J. MYATT, Trial Examiner. In Case
9-CA-4440 the original charge was filed on September 21,
1967,' by International Union of Electrical, Radio &
Machine Workers, AFL-CIO (hereinafter called the
Union) Amended charges in this case were filed on
September 22 and October 23, respectively On November
14, Complaint and Notice of Hearing issued alleging that
Tiidee Products, Inc. (hereinafter referred to as
Respondent), had committed violations of Section 8(a)(1)
and (3) of the Act by unlawfully interrogating employees
about their activities on behalf of the Union, by
threatening to cease operations if the Union became the
employees' bargaining representative, by threatening to
take reprisals against employees if the Union became their
bargaining representative, by discriminatorily selecting
employees for layoff, and by discriminatorily discharging
employees because of their support of the Union.
In Case 9-CA-4488 the original charge was filed by the
Union on October 23, and amended charges were filed on
November 6 and 30 On December 14, Complaint and
Notice of Hearing issued based on these charges alleging
that the Respondent committed additional violations of
Section 8(a)(1) and (3) of the Act. This complaint alleged
that the Respondent discriminatorily changed terms and
conditions of employment of employee-supporters of the
Union, that the Respondent discriminatorily selected
employees for layoff, and discriminatorily discharged an
employee for engaging in activities on behalf of the
Union.
On November 30, another charge was filed by the
Union in Case 9-CA-4536, and on December 14,
Complaint and Notice of Hearing issued. The Complaint
alleged that the Respondent unlawfully refused to bargain
with the Union as the certified representative of its
employees in an appropriate unit. On December 22, the
Union filed an additional charge in Case 9-CA-4563, and
on December 29, Complaint and Notice of Hearing issued
against the Respondent alleging further violations of
Section 8(a)(1) and (3) of the Act. All of the above cases
were consolidated for purposes of trial by an Order issued
by the Regional Director for Region 9 on December 29.
This matter was tried before me on January 16, 17, and
18, 1968, in Dayton, Ohio. All counsel and representatives
were afforded full opportunity to be heard and to
introduce relevant evidence. Briefs were submitted by all
of the parties, and they have been fully considered by me
in arriving at my decision
Upon the entire record in these proceedings, including
my evaluation of the testimony of the witnesses based on
my observation of their demeanor and on the relevant
evidence, I make the following.
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent is an Ohio corporation engaged in the
manufacture of metal and plastic parts for mobile homes
All dates herein refer to 1967, unless otherwise indicated
11. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio & Machine
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent's Refusal to Bargain
The undisputed evidence shows that . the Union
commenced its organizing campaign in July. A petition
was filed on August l and the parties entered into an
Agreement for Consent Election on September 1.2 The
Agreement for Consent Election provided, in part
SECRET BALLOT - An election by secret ballot
shall be held under the supervision of the said Regional
Director, among the employees of the undersigned
Employer in the unit defined below, at the indicated
time and place, to determine whether or not such
employees desire to be represented for the purpose of
collective bargaining . Said election shall be held in
accordance with the National Labor Relations Act, the
Board's Rules and Regulations, and the applicable
procedures and policies of the Board, provided that the
determination of the Regional Director shall be final
and binding upon any question, including questions as
to the eligibility of voters, raised by any party hereto
relating in any manner to the election, and provided
further that rulings or determinations by the Regional
Director in respect of any amendment of any
certification resulting therefrom shall also be final.
[Emphasis supplied ]
6. OBJECTIONS, CHALLENGES, REPORTS
THEREON. - Objections to the conduct of the
election or conduct affecting the results of the election,
or to a determination of representatives based on the
results thereof, may be filed with the Regional Director
within 5 days after issuance of the Tally of Ballots . .
The Regional Director shall investigate the matters
contained in the objections and issue a report thereon
If objections are sustained, the Regional Director may
in his report include an order voiding the results of the
election and, in that event, shall be empowered to
conduct a new election under the terms and provisions
of this agreement at a date, time, and place to be
determined by him. If the challenges are determinative
of the results of the election, the Regional Director
shall investigate the challenges and issue a report
thereon. The method of investigation of objections and
challenges, including the question whether a hearing
shall be held in connection therewith, shall be
'The petition (Case 9-RC-7368), the Agreement for Consent Election,
the Tally of Ballots, Respondent ' s Objections to the Election , and the
Report on Objections and Certification of Representative are in evidence
as G C Exhs l(hh) through I(II)
TIIDEE PRODUCTS 707
determined by the Regional Director ; whose decision
shall be final and binding . [Emphasis supplied.]
The appropriate unit for purposes of collective bargaining
was described as:
All production and maintenance employees at the
Employer's Dayton, Ohio, plant , excluding all office
clerical employees , professional employees , technical
employees , guards and supervisors as defined in the
Act.
On September 14, a secret- ballot election was held
which resulted in 19 votes for the Union , 6 against, and 3
challenged ballots.' The Respondent filed timely objections
to the election, stating in essence: ( 1) that the Union
distributed a leaflet to the employees on the day of the
election "which specifically changed the election issues
established by [the ] NLRB"; and (2 ) that the Union
violated the Consent Agreement by challenging employees
who were on the eligibility list. The Regional Director
conducted an administrative investigation , and on the
basis of his findings , issued a report overruling the
Respondent ' s objections and certifying the Union as the
exclusive bargaining representative of the employees.
On November 10, the Union ' s attorney directed a letter
to Hollander, president of the Respondent , requesting
certain information deemed necessary to enable the Union
to engage in collective bargaining and requested that a
meeting be arranged between the parties as soon as
possible. On that same date the Union ' s attorney
addressed a letter to the Respondent ' s labor consultant
suggesting that the parties meet to commence negotiations
for a collective-bargaining contract on November 15.
Although the Respondent did not reply to either letter,
two representatives from the Union, Reese and Brown,
and two members from the employees ' committee went to
the Respondent's plant on November 15, for the purpose
of commencing negotiations . Hollander refused to engage
in collective bargaining and suggested that the union
contingent contact his labor consultant. On November 20,
the union president , Lacy, forwarded a letter to
Respondent' s labor consultant renewing the Union's
request for negotiations and for the information previously
sought. On November 22, the Respondent ' s labor
consultant advised the Union 's attorney in a letter that the
Respondent would not comply with the certification issued
by the Regional ' - Director and that the Respondent
considered that "the Regional Director acted arbitrarily
and capriciously by denying the employer his right to due
process." In this letter the labor consultant advised the
Union that he could not meet with them "until all
litigation is disposed of." The Union renewed its request
for negotiations in letters directed to the Respondent's
representative on November 27 and December 18."
Hollander was called as an adverse witness by the
General Counsel and examined under Rule 43(b).
Hollander admitted that he had not bargained with the
Union and would not do so because the circulars passed
out by the Union on the morning of the election violated,
in his judgment, the Board's "24-hour" rule and gave the
Union an unfair advantage. He also stated that he would
not bargain while the charges were pending against the
Respondent . It was also contended that the Regional
Director denied the Respondent due process by making an
'The Tally of Ballots indicates that there were approximately 28 eligible
voters in the unit
'The Union submitted a draft of a collective -bargaining agreement and
proposals' covering pension , health, and life insurance benefits. The
Respondent made no reply to the Union's proposals.
administrative determination concerning the objections to
the election rather than affording the Respondent the
opportunity of a hearing.
The Respondent ' s assault on the validity of the
Regional Director ' s certification of the Union as the
exclusive bargaining representative of the employees is
without merit . The objections were investigated and on the
basis of the results of that investigation , a determination
was made. Under the very terms of the Agreement for
Consent Election the method of investigation , including
the question of whether a hearing shall be held, was a
matter which rested solely within the discretion of the
Regional Director , and his decision in this regard was
final and binding on the parties. It is well settled that a
Regional Director ' s Decision in a consent-election
situation will stand in the absence of evidence of "fraud,
misconduct , or such gross mistakes as to imply bad
faith." Sumner Sand & Gravel Company , 128 NLRB
1368, 1371, enfd . 293 F.2d 754 (C.A. 9). Beyond the bald
assertion that the Regional Director acted arbitrarily and
capriciously , the Respondent has failed to come forth with
any evidence whatsoever that would even suggest that the
Regional Director ' s determination should be questioned.
Nor does Respondent ' s claim that it was denied due
process alter this conclusion . The Union freely
acknowledged having engaged in the conduct which the
Respondent cited as objectionable , and there was no
factual issue in contention . The claim that a hearing is
required under these circumstances is frivolous. "The
Constitution protects procedural regularity , not as an end
in itself, but as a means of defending substantive
interests" Fay v. Douds, 172 F.2d 720, 725 (C.A. 2). As
the Regional Director ' s Report on Objections clearly
indicates, the Respondent ' s contentions were thoroughly
presented during the administrative investigation and
considered in the Report itself. Thus it is evident that a
hearing in these circumstances , where no factual dispute
existed, would be nothing more than "a senseless and
useless formality ." Air Control Products, Inc v.
N.L.R.B., 335 F.2d 245, 249 (C.A. 5) See also Carlisle
Paper Box Company v . N.L.R.B., 398 F 2d (C.A 3).
Accordingly , I find that the Regional Director's
Certification of Representative is valid , and is final and
binding on the Respondent . It follows, therefore , that the
Respondent has engaged in and is engaging in conduct in
violation of Section 8(a)(5) of the Act by refusing to
bargain with the Union.
In addition to questioning the validity of the
Certification , the Respondent ' s letter dated November 22,
stated that it would not meet with the Union "until all
litigation is disposed of." Pending Board proceedings or
pending unfair labor practice charges do not relieve an
employer of his statutory obligation to bargain with the
collective -bargaining representative of his employees, and
the refusal to do so until the proceedings have been
disposed of is clear evidence that the employer is seeking
to avoid the obligations imposed by statute. I find
therefore that the Respondent ' s refusal to meet with the
Union until pending litigation is disposed of constitutes a
separate violation of Section 8(a)(5) of the Act. Greer
Stop Nut Company , a division of Kaynar Manufacturing
Co., Inc., 162 NLRB No. 47; Kit Manufacturing
Company, Inc., 142 NLRB 957, 971.
I also find that the Respondent committed a further
violation of Section 8(a)(5) of the Act by ignoring the
Union ' s request for information pertaining to the
employees . The information sought by the Union dealt
with existing wages and fringe benefits , and the request
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for this data by the bargaining representative is
presumptively lawful. Weber Veneer, & Plywood
Company, 161 NLRB 1054, 1056; Curtiss- Wright
Corporation, Wright Aeronautical Division, 145 NLRB
152, enfd. 347 F.2d 61 (C.A. 3). The Respondent offered
nothing to rebut this presumption, but rather simply
refused to deal with the Union in any manner. In these
circumstances, the conclusion that the Respondent further
violated Section 8(a)(5) is inescapable.
B. The Other Unlawful Conduct
1. The events prior to the election
The Union's efforts to organize the employees began in
July. Employee Tackett contacted Reese, !a representative
of the Union, and arranged to have her meet with several
of the Respondent's employees at Tackett's home. Shortly
after this meeting Tackett and the employees who
attended began to distribute authorization cards and
solicit signatures from their fellow employees
Later that same month, the Union intensified its
organizational drive by handbilling the employees in front
of the Respondent's plant. The evidence indicates that this
was the first time that the Respondent's officials became
aware of the Union's efforts. A few days after the
handbilling, Respondent's president, Hollander, told
Donald Gearing5 that he did not like unions and "if they
got in, he would close the doors" and he and Gearing
"would go fishing." According to Gearing, Hollander told
him to listen around the plant for talk about the Union.
Gearing testified that on another occasion in July,
Hollander spoke to him about the Union and stated, "that
if the Union got in, only the `dedicated' employees would
work and all of the rest [of the employees] would go."
Hollander on the other hand categorically denied all
statements attributed to him by Gearing, and testified that
it was Gearing who came to him shortly after the
handbilling incident and stated that he (Gearing) would
quit if the plant became unionized.
Having observed these witnesses while testifying, and
considering Hollander's intransigent and hostile attitude
toward the very concept of union representation for the
employees and his actions following the representation
election, I credit the testimony of Gearing. Hollander's
statements to Gearing were consistent with the course of
conduct adopted by the Respondent in opposing the
Union both during the organizing campaign and after the
election.
Hollander also spoke to employee Haywood about the
union activity in the plant. Haywood testified that
Hollander told him in August that "if there is anything
that you can find out [about the Union], I would
appreciate it," and that "it would never be forgotten."
According to Haywood, Hollander promised that he
would be "taken care of," and that he (Haywood) had
been in enough trouble and Hollander didn't want to see
him get into any more 6 Haywood testified that he later
reported to Hollander that there were six employees on
his side. According to Haywood, Hollander replied that he
thought that the people on the assembly table were
responsible for the trouble.
'Gearing is alleged by the General Counsel to be a supervisor His status
is treated, infra, in this Decision
'Haywood apparently had served a prison term prior to working for the
Respondent.
Hollander denied asking Haywood to ferret out
information about the union activity among the
employees. He stated that Haywood volunteered to do so,
and he cautioned him to mind his own business. In view
of my impression of Hollander, and considering his
overall conduct in opposing 'the Union, I credit the
testimony of Haywood.'
Employee Linton credibly testified that Melvin
Hershey, also alleged to be a supervisor," told him, shortly
after the Union handbilled the plant, that the Respondent
would not recognize a union and would close down and go
fishing, During this conversation Hershey asked Linton if
he knew anything about the Union. Linton testified that
prior to the election, Hershey called him at home on' the
telephone and asked him "to talk up the Teamsters"
among the employees, and to try to find out which of the
employees would object to this Union.' Hershey, who
appeared as a witness, denied discussing the Union with
Linton, but did acknowledge that he was aware that
Linton had formerly been a member of the Teamsters
because the employee volunteered that information. On
the basis of my observation of these witnesses, [find and
conclude that Hershey did in fact make these statements
to Linton.
On August 1, a meeting of approximately 12 of the
female employees was held in Hollander's office. Gearing
complained to Hollander about the women being off the
floor because it was interfering with production. He was
told not to worry about it as the employees were talking
about the Union. When the meeting was concluded,
Hollander came out of the office and told Gearing that
the employees had voted 11 to 1 to get rid of him.
Hollander informed Gearing that he "pushed them too
hard" in their work and did not get along with people.
Gearing subsequently gathered his tools and left the
Respondent's plant.
On August 5, employee Tackett was injured in an
automobile accident and remained home for
approximately 5 weeks thereafter. During her
convalescence Tackett acted in a liaison capacity between
the employees and the Union. While at home Tackett
received a visit from Hollander, who inquired as to how
she was getting along and if she needed any financial
assistance. Hollander gave Tackett $50 to help her along.
According to Tackett, Hollander indicated that it was a
"gift" from him, but that if she wanted to pay it back, she
could do so at her leisure.
During the latter part of August, Mary Burgher,
another alleged supervisor,'" began to solicit signatures
from the Respondent's employees on a petition which she
was circulating in the plant. She was accompanied on this
mission by Ward, another senior employee. The petition
was actually a poll by which the employees were to
indicate whether or not they wanted an election to
determine if they should be represented by a union. In
each case the employee was informed by Burgher to sign
his or her name and indicate yes or no. Employees Linton,
'In addition to the request by Hollander, Haywood also testified that
Gearing asked him to find out all that he could about the Union and
report back Haywood stated this request was made in July, and he refused
to comply with it
'As in the case of Gearing, the Respondent denied that Hershey was a
supervisor His status will likewise be determined subsequently in this
Decision.
'It is not clear in this record whether Hershey made this request during
their initial conversation in July, or at some subsequent date.
"Burgher's supervisory status is also in contention, and will be dealt with
subsequently herein
TIIDEE PRODUCTS
Wells, Virgil Brummitt, William Brummitt, and Graham
signed the petition and placed "no" behind their names."
Several employees refused to sign the petition. These
employees were Sawmiller, Morgan, Haywood, and
Venters Venters testified that when she refused to sign,
Burgher told her that she had to do so. However, Venters
remained adamant in her refusal. Employee Cash testified
that when she was approached by Burgher, she indicated
that she did not care one way or the other about the
election and did not sign the petition. Another employee,
Cullars, informed Burgher that she wanted more time to
think the matter over. She was not approached thereafter
by Burgher concerning the petition. Employee Reagan
testified that Burgher signed her name to the petition and
indicated "no" after her name. Reagan thought the matter
over and subsequently went to Burgher and insisted that
her name be erased. Employee Wilson signed the petition
at the request of Burgher, but subsequently went to
Burgher and asked that her name be stricken. According
to Wilson, Burgher replied that she (Burgher) was proud
to sign her name on the petition.12 Tackett, at home
convalescing while the poll was being taken, was contacted
by telephone by Burgher and asked if she would sign the
petition. Tackett was noncommittal in her reply and there
is no indication that her name was attached to the
petition.' 3
Although Hollander disclaimed any knowledge of the
petition which Burgher had been circulating, the unrefuted
evidence shows that Burgher took the petition into
Hollander's office after she had secured the signatures.
Burgher testified that she circulated the petition because
employee Linton was talking about the Teamsters Union
and the Charging Union had passed out literature
informing employees that a Board election would be held
at the plant. Burgher claimed that she conducted the
survey to determine how the employees felt about the
matter, and that she intended to give the petition to the
Board.
After she had polled the employees, Burgher questioned
a number of them individually about the Union. The
unrefuted testimony shows that on August 31, Burgher
asked employee Wells how he felt the Union's campaign
was going. Burgher told Wells that she was going to vote
against the Union. In another conversation with Wells
shortly before September 14, Burgher told him that
someone in the shop represented the union members and
she wondered who it was. She asked Wells if he was the
person, and when he denied it, Burgher stated that she
was only "kidding."
During the week preceding the election on September
14, Burgher asked employee Reagan her views on the
outcome of the election. This employee told Burgher that
she was going to "kill Burgher's `no' vote." During this
same week Burgher approached employee Venters and
asked her who was going to be the observer for the Union
at the election. Burgher also asked this employee if she
knew who started the Union. On the day of the election
Burgher sought to get the name of the union observer
from employee Wilson. When Wilson replied that she was
going to be the observer, Burgher refused to believe her
William Brummitt testified that he was told by Linton that Hershey
wanted all employees in the plastics department to sign "no."
"There is no indication in the record that Burgher ever deleted Wilson's
name from the petition.
"During this same conversation Burgher asked Tackett if she knew who
among the employees started the union activity and what, if anything, she
knew about the Union. In addition to remaining noncommittal about the
petition , Tackett professed to know nothing about the Union
709
Burgher also played a minor role in conversations
between Hollander and several employees. Sometime
during the latter part of August, employee Jones asked
Burgher if she could see Hollander. After Burgher
determined that it was possible, she accompanied Jones
into Hollander's office. Jones was upset and threatened to
quit her job because she was having difficulty with several
of the employees in the plant. Hollander asked Jones if
she knew who started "this." Jones replied that no one
had said anything about the Union to her. Hollander then
stated that he had not mentioned the word union,
whereupon Jones replied, "No, you didn't, but I know
what you mean." Hollander then turned to Burgher and
said, "She'd be surprised if she knew, wouldn't she,
Mary9" Burgher replied in the affirmative Hollander then
informed Jones that "We know a lot more than you think
we know." Hollander assured Jones that matters would
work out in the plant, and he asked her if she was aware
of what had happened to Gearing. When Jones indicated
that she had heard from the other employees that Gearing
had been fired, Hollander stated, "We have our own way
of taking care of troublemakers."'
A week before the election Burgher came to employee
Cash's machine and instructed her to go to Hollander's
office. Burgher followed Cash into the office. When they
arrived, Hollander informed Cash that he had heard from
Burgher that she was brooding over the fact that she had
not been given a raise in pay. Hollander told Cash that he
could not give her a raise while the matter with the Union
was pending because it would look as if it were a bribe.
Hollander promised her a 10-cent-an-hour increase once
the "trouble" was over. As Cash was leaving Hollander's
office he told her that the union people were a bunch of
"damn Communists." Hollander also showed Cash some
of his records indicating the amount of profit he was
making on table legs which were being produced in the
plant. Later that day, Hollander stopped by Cash's
machine and asked her if she had learned anything from
their conversation that morning. When Cash indicated
that she had, he replied, "Well, some people think that
grass is always greener on the other side, until they get
there."15
2. The events after the election
As previously noted, the election was held on
September 14, and the Union received 19 votes with 6
votes cast against union representation and 3 ballots were
challenged. Tackett was the employee observer for the
Union during the election. After the Board agent
announced the results to the assembled employees,
Hollander grabbed Tackett's arm and said, "Do you mean
. .. after all that I have done for you! I gave you $50 to
save your house " Hollander then asked Tackett if she
had anything to say to the employees and repeated this
statement until Tackett then turned and announced the
results of the election again."
The following day when the employees reported to
work, shortly after 7:30 a.m., they found the plant locked.
A notice was posted on the door stating that the doors
"Jones' version of this conversation was unrefuted in the record
"Cash 's testimony concerning her conversation with Hollander is not
controverted in the record.
"Hollander testified that the Board agent made his announcement in
such a low tone that he was not certain that the employees heard the
results. According to Hollander, he then asked Tackett to repeat the tally
to the employees , and he denied grabbing her arm or expressing anger I
do not credit Hollander 's version of this incident
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not be opened until 7:45 a.m. Normally the doors
to the plant were open when the employees arrived. When
employees Tackett and Virgil Brummitt reported to the
plastics department, they were instructed by Hershey to
grind up the 10-foot sections of hoses which the employees
intended to prepare for shipment. Both Tackett and
Brummitt protested that the hoses were not defective and
should not be destroyed." Hershey, however, insisted that
the hoses had to be scrapped.
After the hoses were destroyed, Hershey informed
Tackett that he had no work available and sent her to
Hollander. At approximately 10 a.m. Hollander laid
Tackett off, citing lack of work as the reason. He
instructed her to contact him by telephone the following
Tuesday to determine whether there was work available.
When Tackett called as instructed, she was told that the
Respondent had no work for her. The following day
Tackett again attempted to contact the Respondent, but
Hollander refused to talk to her and instructed his
secretary to inform Tackett that there was no work
available. Tackett was recalled on September 25, and
worked for approximately a week. She was subsequently
laid off again on September 29, because there was no
work, The following week when Tackett went to the
Respondent's office to pick up her paycheck, Hollander
asked her to repay the $50 he had given her in August.
When Tackett said that she thought it was a gift,
Hollander indicated that it was once a gift, but that he did
not consider it to be such now. He told Tackett that she
was an "unappreciative employee."
Employee Virgil Brummitt was also laid off on
September 15 at approximately 11 a.m. He was informed
that there was no work available and he was instructed to
remain in contact with the Respondent. Brummitt
remained in layoff status for several weeks and was then
recalled. After working for approximately 7 days,
Brummitt was laid off again and then recalled.
Employee Morgan was laid off on September 15 at
approximately 3:30 p.m. because of lack of work. Morgan
was polishing castings at the time of his layoff, and he
testified that there was sufficient work to carry him
through the following day. Morgan contacted the
Respondent's office the following Tuesday and was told
that there was still no work available. He was instructed
to remain in contact with the Respondent. Morgan did
not contact the Respondent for more than a month, and
when he did, he was informed that there was only a single
day's work available.1e
The day after the election, the results were the topic of
conversation around the Respondent's plant. The
uncontroverted testimony indicates that Burgher
approached employee Jones and asked her how she had
voted in the election. Jones replied that she had voted "the
right way." All of the employees testified that a sign was
posted by the timeclock stating, "I know who." There was
no signature attached to the bottom of the sign. Burgher
testified that she put the sign up because someone had
jammed the timeclock. According to Burgher, she wanted
to indicate that she knew who was responsible. In view of
the Respondent' s continuous acts of harassment and
"Tackett testified that the 10-foot sections were left from a run of hoses
which were originally 25 feet in length She stated that the Respondent had
a request for 15-foot hoses and filled this order by cutting the desired
length from the longer section of hoses . Tackett stated that the remaining
sections could not be defective, and that they should have been prepared
for shipment
"Hollander testified that he had attempted to get in touch with Morgan
during that month to recall him to work, but was unable to do so.
retaliation against the employees after the election, I find
Burgher's explanation entirely unpersuasive. I find,
therefore, that the sign was posted to indicate that the
Respondent's officials were aware of the identity of the
employees who supported the Union.
On September 18, employee Reagan reported to work
and was informed that she would not be allowed to work
because of an oil leak in her machine. Hollander told
Reagan that he would have to order a part for the
machine. Reagan testified that in the past when her
machine was broken, she was allowed to work on other
machines or was given other duties in the plant. On
September 20, Reagan was recalled and worked until her
discharge the following day."
On September 19, when employee Sawmiller reported
to work she was informed by Hollander that her machine
had broken down, and that she would be laid off until the
machine was repaired. '" Sawmiller contacted the
Respondent the following day and was informed that her
machine was still not repaired. She was not recalled to
work until September 26. Sawmiller worked several days
thereafter and then was laid off again due to lack of work.
On October 6, Sawmiller returned to the plant to pick up
her paycheck. Hollander noticed that she was not feeling
well and suggested that she see a doctor. Later that day,
Sawmiller called Hollander and informed him that she
was 3 months pregnant and that she had complications
with a kidney infection. Hollander told the employee to
call him back when she was better. On October 31,
Sawmiller called Hollander and was informed that it was
the Respondent's policy not to allow pregnant women to
work in the shop, therefore she was discharged.21
On September 20, Hollander laid off employees Cash,
Cullars, and Graham. In each instance lack of work was
cited as the reason. Cash was laid off at noontime and the
Respondent never recalled her. Cullars was recalled on
September 25, and she was laid off several times
thereafter. The record does not indicate when Graham
was recalled, but this employee testified that she was
recalled and laid off many times after September 20, and
that each time she was laid off, she was informed that
there was no work.
On September 20, Hollander came into the plant and
accused employee Wilson of having one of the male
employees unload a truck forher. Hollander told Wilson
that if she wanted anything done she was to come to him
or to Burgher. He concluded the conversation by telling
Wilson "You better watch your step, and your mouth,
too." At the end of the workday, Wilson was told by
Hollander not to come to work the next day because there
was none available She was instructed to contact him the
following Monday. Wilson testified that there was work
available in the plant at the time of her layoff, and that
she had been recalled and laid off several times after
September 20 and that on each occasion there was work
available in the plant.
"The circumstances surrounding Reagan's discharge will be discussed
later herein
'Sawmiller did not work on September 18, but testified that her
machine was operating correctly the preceding Friday.
'Hollander testified that the Respondent initiated this policy for the
safety and benefit of female employees who became pregnant Sawmiller
and Venters credibly testified that at least two other female employees
were allowed to work in the plant while they were pregnant . Venters stated
that she overheard Burgher tell one of these employees that she could work
until her 6th month of pregnancy , and that the employee wore maternity
clothes while working in the plant.
TIIDEE PRODUCTS
On September 21, Ward came over to the machine that
Reagan was operating and commented that it was "a
shame the way the employees had done the Respondent."
Reagan then accused Ward of being in favor of the
Union. and this accusation so upset Ward that she spoke
to Burgher about it. Burgher and Waid went into the
Respondent's office and reported the incident to
Hollander. Hollander came out of his office and motioned
all of the employees over to Reagan's machine. According
to Reagan, Hollander would not allow her to speak and
accused her of having a big mouth and threatened to
throw her out of the plant. He had Ward repeat what
Reagan said to her, and he then fired Reagan for talking
about the Union while on the job. Venters, who was
standing in the group of employees, testified that
Hollander then turned to her and stated "that goes for
you, too." According to Venters, Hollander then told her
to "get [her] ass back to work and that [she] had raised
enough hell and started enough rumors." Venters testified
that Hollander stated, "You are making your bed and I
will see that you pay for it." He then slated that he had
been in "this mess before."
Hollander acknowledged that he fired Reagan because
she was creating friction and she discussed the Union on
the job. He admitted that he ordered Venters back to
work, but denied swearing at her. Ward and another
employee (Wilson) testified concerning this incident and
gave a version substantially similar to that of Hollander.
All witnesses agreed that Hollander fired Reagan because
she was discussing the Union while on the job and that he
ordered Venters back to work. The only area of conflict
concerns the exact statements made by him while doing
so. Considering the entire pattern of Hollander's conduct,
both prior and subsequent to the election, and considering
the prominent role that Ward played in unlawful poll of
the employees in August, I am persuaded that Hollander
made the statements attributed to him by Venters.
Consequently, I credit her version of this incident.
On October 10, employee Jones was laid off because
Hollander claimed that a shipment of cable was lost and
he had no other work for her. Jones testified that in the
past when she did not perform her usual duties, she was
assigned work elsewhere in the plant.22
During the week of October 16, Jones and Venters were
working at the assembly tables. Burgher instructed
Venters to operate a machine which fed parts to Jones for
assembly. Shortly after Venters began running the
machine, she discovered that she was catchmg up with
Jones and that they were failing to assemble the required
parts. Because of this Venters returned to the assembly
table and began working with Jones on her own initiative.
Burgher questioned this and called Hollander out into the
plant When the employees explained the difficulty,
Hollander told them that he would allow the employees to
work together at the table provided they produced 125
parts a day. In the past these employees jointly produced
75 parts each day. Several days later Hollander came into
the plant and asked Jones and Venters if they were
producing the 125 parts that he insisted upon. The
employees informed him that this was impossible and that
they were only able to produce 100 parts. Hollander then
demanded 125 parts "or else." On October 21, Venters
left the Respondent's employment and never returned,
although she had received several calls from Hollander
asking her to do so.
"Jones was also laid off on December 20 for a 3-day period
711
Employee Linton testified concerning several
conversations with Hershey and Hollander about the
Union after the election He stated that 2 or 3 weeks after
the election Hershey told him that the names of the four
instigators of the Union were "mud."23 Linton further
testified that in November Hershey asked him if he had
said anything about the Union around the plant and he
told Linton that his days were "numbered." After charges
were filed by the Union, Linton received a letter from the
Board agent requesting information to be used in the
investigation of the charges. Linton called Hershey at his
home and informed him of the letter. Hershey came to
Linton's home and took the letter and subsequently
invited Linton over to his home. Hershey told Linton that
he wanted him to call the Regional Office of the Board
and inform them that he was interested in the Union and
wanted to find out what was going on. According to
Linton, Hershey gave no explanation as to why he wanted
Linton to do this. While Linton was at Hershey's home,
Hollander came there and told the employee that he could
not order him to make the call to the Regional Office, but
that he would like for him to do it.24
Sometime in December employee Haywood was laid off
for an alleged lack of work. On December 29, Haywood
returned to the Respondent's office to pick up his
paycheck. While there Hollander asked Haywood how he
had voted in the election. Haywood replied that he had
voted for the Union. Hollander then stated that he knew
this but wanted to see what the employee would say.
During the period following the election and continuing
through the first of the following year, the Respondent
hired four new employees. Although the record is not
absolutely clear on this point, it appears that two of the
employees were hired sometime between October and
December, and that they performed jobs that the
employees in layoff status would have normally
performed. The remaining two employees were hired
sometime during the first part of 1968.
Concluding Findings
The initial issue to be resolved in this case is the status
of Gearing, Burgher, and Hershey. The Respondent takes
the position that Gearing was never designated foreman
and that he in fact usurped the title and authority of this
position. The Respondent further claims that Burgher was
the oldest and most experienced employee, completely
familiar with Respondent's entire operation, and that she
simply trained new employees when they initially reported
to the job. With respect to Hershey, the Respondent
alleges that this individual is the technical engineer in
charge of design, cost, and tooling, and in addition is
responsible for quality control. Respondent denies that
Hershey possesses any supervisory authority whatsoever.
The relevant facts, however, do not support the
Respondent's position with respect to these three
individuals.
Gearing credibly testified that he was originally hired as
a maintenance man and that after a few weeks the
Respondent placed him on salary ($10,000 per year) with
the understanding that he would run the plant. Hollander
admitted that Gearing was placed on salary, but states
that this was done in order to allow Gearing to earn a
"There was no indication as to who these instigators were considered to
be
"There is no indication in the record that Linton ever made such a call
to the Regional Office.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fixed sum of money without working long hours of
overtime each week.25 Gearing testified that he had
authority to give work to employees, to see that the
production was maintained, and to transfer employees
from one job assignment to another. His testimony in this
regard was corroborated by employees Wells, Sawmiller,
Reagan, Haywood, and Morgan Each of these employees
testified that Gearing had authority to grant them time off
for emergency leave or for illness and that he responsibly
directed their work. There is evidence in the record that
Hollander not only considered Gearing the foreman, but
also informed at least one employee that Gearing occupied
this position. The unrefuted testimony of Haywood
indicates that when he was hired, Hollander told him that
he would take instructions from Scarpelli, the toolmaker,
because the foreman (Gearing) was in the hospital. On the
basis of the above, it is clear that Gearing had authority
to responsibly direct the work of the employees, to change
their job assignments , to grant them time off, and to
require them to work overtime if needed. It is also clear
that the employees regarded Gearing as their supervisor.26
Huberta Coal Co., Inc., 168 NLRB No. 22. On the basis
of the above, I find and conclude that Gearing was the
Respondent's foreman, and that he was a supervisor
within the meaning of Section 2(11) of the Act. Stratford
Lithographers, Inc., 168 NLRB No. 65, Newland Knitting
Mills, 165 NLRB No. 104.
Respondent's contention that Burgher was nothing
more than a senior employee who acted in the capacity of
the leadgirl, also lacks persuasive force. The evidence
discloses that from October 1966 until May 1967, a
portion of the Respondent's operation was housed in a
temporary plant located a considerable distance from the
main plant. This division in the operation was caused by a
fire which destroyed a portion of the main plant. It is
undisputed that Burgher was the only person in charge of
the six or seven female employees who worked in the
temporary building, and that Hollander only visited the
temporary building for short periods of time during the
workweek. The employees who worked under Burgher in
the temporary building credibly testified that she had the
authority to, and in fact did, grant them time off for
emergency situations. Further, that she assigned them
duties and saw to it that they were carried out. The
evidence also indicates that when Gearing was fired
Burgher assumed his duties and directed all of the
employees in the plant with the exception of the
employees in the plastics department. Several employees
testified that they were told by Hollander at the time they
were hired that they would take their instructions from
Burgher. Moreover, it is abundantly clear that Burgher
regularly transmitted information concerning employees'
conduct to Hollander, and that on the basis of
information supplied by Burgher that Hollander took
action affecting the employees. Considering all of the
above, I find and conclude that Burgher was a supervisor
within the meaning of Section 2(11) of the Act. Huberta
Coal Co., Inc., supra; Newland Knitting Mills, supra.
"Hollander claimed that Gearing worked 60 to 80 hours a week It is
significant to note that while Hollander professed to be concerned about
the long hours Gearing was working , he complained , while testifying, that
Gearing was no longer willing to put in the extra hours after he became
salaried
"The Respondent's claim that Gearing usurped the authority that he
exercised in the plant is completely unpersuasive . From my observation of
Hollander, I am of the firm belief that this employer would not have
allowed anyone to assert any supervisory authority in the plant unless he
specifically authorized it
The evidence is equally as compelling concerning the
supervisory status of Hershey. Hershey hired employee
Linton and informed him at the time of hire what his rate
of pay would be. Employees Linton, Tackett, Virgil and
William Brummitt credibly testified that Hershey gave
them their job assignments, transferred them from one job
to another, and granted them time off when they
requested it. Accordingly, I find and conclude that
Hershey was also a supervisor within the meaning of
Section 2(11) of the Act
Having determined that Gearing, Burgher, and Hershey
were supervisors, it necessarily follows that the
Respondent is responsible for the conduct and statements
of these individuals. Webb Tractor and Equipment
Company, 167 NLRB No. 46 This record is replete with
instances of unlawful conduct engaged in by the three
supervisors and by the Respondent's president,
commencing shortly after the handbilling of the plant in
July. Hollander's threat to close up the plant and go
fishing if the Union became the bargaining representative
was repeated by Gearing and Hershey to employees
Haywood and Linton. This statement carried the clear
threat that the employees would face a loss of
employment due to plant closure if they selected the
Union as their representative. There are numerous
instances of unlawful interrogation of employees by the
supervisors concerning union activities in the plant.
Gearing admitted questioning Sawmiller to determine who
was responsible for causing the Union to organize the
employees. Hershey made a similar attempt to get
information concerning the Union from employee Linton.
Burgher was particularly active in this regard, and
repeatedly questioned employees in an effort to determine
the identity of the union adherents and the extent of the
union activity among the employees That such conduct by
supervisors interferes with, restrains , and coerces
employees in the exercise of their statutory rights is too
fundamental to warrant citation I find, therefore, that the
Respondent violated Section 8(a)(1) of the Act by the
above conduct of its supervisors.
In addition to the above unlawful conduct, Burgher
polled the employees in order to determine their views
about union representation. This poll was conducted at a
time when representation proceedings were pending before
the Board, and it is clear that the poll was not for the
purpose of determining whether or not the Respondent
should recognize the Union as the majority representative
of the employees. Blue Flash Express, Inc., 109 NLRB
591, 593. Accordingly, I find and conclude that the
Respondent committed a further violation of Section
8(a)(1) of the Act when Supervisor Burgher conducted an
unlawful poll to determine the extent of employee support
for the Union. Han-Dee Spring & Mfg. Co., Inc, 132
NLRB 1542.
The Respondent also violated Section 8(a)(1) when
Gearing and Hollander on separate occasions attempted
to enlist the aid of employee Haywood to check with
other employees and to find out whatever he could about
the Union. It is plain that both Gearing and Hollander
were seeking to use this employee as an informer to
ascertain the extent of the union activity among the
employees. This effort on the part of the Respondent's
president and foreman further violates Section 8(a)(1) of
the Act. Atlas Engine Works, Inc., 163 NLRB No. 61.
The Respondent's attempts to interfere with and thwart
the union activity of its employees did not cease after the
election established that a clear majority of the employees
desired union representation. Indeed, the evidence
TIIDEE PRODUCTS
discloses that after the election, the Respondent's unlawful
activities intensified The day following the election
Tackelt, the union observer during the election, was laid
off at 10 a.m., and Virgil Brummitt was laid off an hour
later. Morgan was laid off at 3:30 p.m. that same day On
September 18, Reagan was not allowed to work at all
because of an alleged defect in her machine, and on
September 19, Sawmiller was also informed that she could
not work because her machine needed repairing. On
September 20, Cash, Cullars, and Graham were laid off.
Although the Respondent asserts an economic defense,
the evidence overwhelmingly supports the General
Counsel's claim that the layoffs were unlawfully
motivated. After expressing strong displeasure over the
results of the election in the presence of all the employees,
Hollander began laying off employees the very next day.
There was no prior indication that a work curtailment was
contemplated It is significant to note that Tackett was
the first employee selected for layoff that morning. Of
equal significance is the fact that the Respondent departed
from the past practice of finding other jobs around the
plant for the employees during slow periods, e g., cleaning
machinery, washing windows, and general maintenance
work Thus, it is apparent that Hollander was carrying
out the threat voiced to Gearing when he stated, "that if
the Union got in, he would keep the `dedicated' employees
and get rid of the rest." While the record shows that only
two employees were actually fired, it is clear from the
Respondent's treatment of the employees after the election
that Hollander was seeking to achieve his purpose by
penalizing the employees for voting for the Union, thereby
discouraging their membership in the Union
Additional evidence of this unlawful motivation is
contained in Hollander's statements to employees during
the week following the election. He told employee Wilson
"to watch her step and her mouth," and he stated to
employee Venters that "you're making your bed and I'll
see that you pay for it." He also told Venters that he had
been in "this mess before."27 Hollander continued his
harassment of the employees by suddenly increasing the
production quota of the employees working at the
assembly table He demanded that these employees, Jones
and Venters, produce 125 parts a clay, whereas he
previously had been satisfied with little more than half
that amount. This dramatic increase in the production
requirements, after the election, is a further demonstration
of Hollander's efforts to retaliate against the employees
for selecting the Union as their bargaining representative.
It is in the totality of these circumstances that I find
and conclude that the Respondent's claim of economic
justification for the layoffs must be completely rejected. I
further find that the motivating cause underlying the
Respondent's conduct was the intense desire to retaliate
against the employees for voting in favor of union
representation and thereby discourage employee
membership in the Union. Battle Creek Steel Fabricating
Company, Inc., 169 NLRB No. 125; West Side
Plymouth, Inc , 170 NLRB No. 98. The suddenness of the
layoffs, the departure from the past practice of putting
employees to work in other jobs when business was slack,
the various statements made to employees after the
election, and the imposition of oppressive production
quotas are all factors which far outweigh the Respondent's
"As the General Counsel correctly pointed out in his brief, "this mess
before" obviously referred to the Union's prior attempt to organize the
employees in 1964 A complaint was issued in connection with that effort
and was subsequently dismissed by the Trial Examiner (TXD-378-65)
713
claim of economic necessity in its treatment of the
employees. Accordingly, I find that the Respondent
violated Section 8 (a)(3) and (1) of the Act by laying off
employees and increasing the production quota of two
employees for discriminatory reasons
The discharges of Reagan and Sawmiller must also be
considered as a part of the pattern of unlawful conduct
directed at the employees by the Respondent. It is clear
that Reagan was fired for discussing the Union on the job,
but it is equally as clear that until this particular incident
the Respondent never invoked or enforced a rule against
discussions of the Union in the plant. Indeed, the evidence
shows that the Respondent's president and supervisors
repeatedly discussed the Union with employees while they
were on the job, and that Burgher freely circulated among
the employees while they were working in an effort to poll
them about their union sympathies. The conversation
between Ward and Reagan which precipitated the latter's
discharge was in fact initiated by Ward, who was
complaining about the fact that the majority of the
employees voted in favor of the Union. Hollander
summarily discharged Reagan without affording her an
opportunity to explain or defend her conduct, and there is
no evidence in this record that any other employee was
ever discharged for discussing the Union while working. It
is apparent, therefore, that the rule against discussing the
Union while on the job, if it existed at all, was
spontaneously invoked and discriminatorily enforced
against Reagan. Consequently, her discharge was in
violation of Section 8(a)(3) and (1) of the Act. Talon,
Inc., 170 NLRB No. 42; Clanbach, Inc., dlbla Carousel,
170 NLRB No. 35. Cf Rexall Chemical Company, A
Division of Rexall Drug and Chemical Company, 172
NLRB No. 147
The Respondent's claim that Sawmiller was discharged
because of a policy against allowing female employees, for
purposes of safety, to work in the plant is likewise without
merit. The credible evidence indicates that at least one
other female employee was allowed to work until she was
in her 6th month of pregnancy. Moreover, Hollander's
comments to Sawmiller at the time that she was ill, due to
her pregnancy, gave rise to the expectation that the
employee would be allowed to return to work once her
condition was better. There was.no mention of the alleged
company policy against allowing pregnant women to work
in the plant I find therefore that Hollander seized upon
the fact of Sawmiller's pregnancy as a pretext to enable
him to get rid of one more employee identified as a union
supporter. I therefore find that by the discharge of
Sawmiller, the Respondent further violated Section 8(a)(3)
and (1) of the Act. Jackson Packing Company, 170
NLRB No. 155.
CONCLUSIONS OF LAW
1. The Respondent, Tiidee Products, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and
Machine Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The above Union is the duly certified
collective-bargaining representative of the Respondent's
employees in the following appropriate unit.
All production and maintenance employees at the
Employer's Dayton, Ohio, plant, excluding all office
clerical employees, professional employees, technical
employees, guards and supervisors, as defined in the
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act.
4. By unlawfully interrogating employees to determine
the identity of union adherents and the extent of union
activity in the plant, the Respondent interfered with,
coerced, and restrained employees in the exercise of their
statutory rights and violated Section 8(a)(1) of the Act.
5. By threatening to close the plant in the event that the
Union became the employees' bargaining representative,
and by threatening to get rid of employees who supported
the Union, the Respondent interfered with, restrained, and
coerced the employees and violated Section 8(a)(1) of the
Act.
6. By seeking to induce employees to act as informers
concerning the union activities of fellow employees, the
Respondent further violated Section 8(a)(1) of the Act.
7. By conducting a poll of the employees in order to
determine their sentiment for or against the Union, at a
time when a representation proceeding was pending before
the Board, the Respondent further violated Section 8(a)(1)
of the Act.
8. By unlawfully laying off employees because a
majority of the employees selected the Union as their
collective-bargaining representative, the Respondent
violated Section 8(a)(3) and (1) of the Act.
9. By discriminatorily discharging employees in order to
retaliate against employees for selecting the Union as their
collective-bargaining representative and in order to
discourage membership in the Union, the Respondent
violated Section 8(a)(3) and (1) of the Act.
10. By arbitrarily increasing production quotas of
employees in order to retaliate against them for selecting
the Union as their collective-bargaining representative, the
Respondent changed terms and conditions of employment
of its employees in order to discourage membership in the
Union and violated Section 8(a)(3) and (1) of the Act.
11. By refusing to bargain with the Union as the
certified collective-bargaining representative of the
employees in an appropriate unit, the Respondent violated
Section 8(a)(5) and (1) of the Act.
12. By refusing to furnish the Union with information
pertaining to employees' existing wage and fringe benefits,
the Respondent also violated Section 8(a)(5) and (1) of the
Act.
13. By refusing to meet and negotiate with the Union,
as the duly certified representative of its employees, until
all litigation was concluded, the Respondent further
violated Section 8(a)(5) and (1) of the Act.
14. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act, I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. As I have found that the Respondent discriminatorily
laid off and discharged employees on various dates
beginning September 15, 1967, 1 shall recommend that the
Respondent recall all employees discriminatorily laid off
and reinstate all employees discriminatorily discharged to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered as a result of the discrimination against
them. The sum payable to these employees shall equal the
amount they would have earned from the date of their
unlawful layoff or discharge, as the case may be, to the
date of recall or the offer of reinstatement, less any net
earnings during the said period. Backpay shall be
computed on a quarterly basis in a manner consistent with
the Board policy set forth in F. W. Woolworth Company,
90 NLRB 289, and interest thereon shall be computed in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716. In the case of employee Sawmiller, however,
backpay shall not accrue from the 6th month of her
pregnancy to the time that she would have normally been
able to return to work after the termination of her
pregnancy.
Because the Respondent has refused and continues to
refuse to bargain with the Union as the duly certified
collective-bargaining representative of its employees in the
unit found appropriate, I shall further recommend that it
cease and desist from refusing to bargain and, upon
request, bargain in good faith with the Union. Further,
that if an understanding is reached, embody such
understanding in a signed agreement. In view of the
nature of the Respondent's extensive unfair labor practices
and because this conduct evinces a complete rejection of
the collective-bargaining principle, I shall also recommend
that the certification period be extended to begin on the
day that the Respondent commences to bargain in good
faith with the Union, upon request, as the certified
bargaining representative. Mar-Jac Poultry Company,
Inc., 136 NLRB 785; Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5);
Excelsior Laundry, 167 NLRB No. 64; Monroe
Manufacturing Company, 167 NLRB No. 157.
In addition to the above, the Union seeks a far broader
remedy. The Union requests that the Respondent make
the employees whole for wages and benefits which they
might have received but for the Respondent's unlawful
refusal to bargain, and that the Respondent be required to
pay the Union the amount of dues and initiation fees it
lost dating from 130 days after the Union was certified.
The 130 days is predicated upon the testimony of
high-ranking union officials that in their experience a
contract containing a union-shop clause is generally
executed within 100 days after certification. The Union's
request for this type of an expanded remedy represents the
views of a growing body of respectable authority who take
the position that the Board's current policy and practices
in remedying this type of unlawful refusal to bargain is
neither adequate nor realistic. There is currently pending
before the Board at the present time two cases in which
such a request is being considered.28 In each of these cases
the Board has received oral argument on the question of
an adequate remedy, but has not, as yet, rendered its
decision. As the remedy requested in the instant cases
involves both legal and policy questions which should be
initially considered by the Board, I am not inclined to
grant the remedy requested by the Union. In the course of
the trial of these cases, I allowed the Union to develop
fully in the record all evidence necessary to sustain its
position on this issue and in the event that the Board does
modify its policy in this regard, the Union's position is
amply protected. Accordingly, I decline to require the
Respondent to make the employees whole for wages and
benefits that might have been negotiated but for the unfair
labor practices, and I likewise decline to require the
"Zinke 's Foods, Case 30-CA-372 (TXD-662-66, Trial Examiner
Josephine Klein ), Ex-Cell-O Corp, Case 25-CA-2377 (TXD-80.67, Trial
Examiner Osley Vose).
TIIDEE PRODUCTS 715
Respondent to pay the Union the amount of dues and
initiation fees lost as a result of a failure to negotiate a
collective-bargaining agreement Monroe Auto Equipment
Company, Hartwell Division, 164 NLRB No. 144. Cf.
Excelsior Laundry, supra.
Because of the nature and extent of the unfair labor
practices found herein and because these violations
manifest an attitude of hostility directed toward the very
basic purposes of the Act, and further, in order to prevent
the commission of other unfair labor practices by the
Respondent, I shall recommend a broad cease-and-desist
order. Barnwell Garment Company, Inc., 163 NLRB No.
8; N.L.R.B. v Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4).
Accordingly, upon the foregoing findings of fact and
the conclusions of law and upon the entire record in this
case, I recommend, pursuant to Section 10(c) of the Act,
the following:
RECOMMENDED ORDER
Respondent, Tiidee Products, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees to determine the identity of
union supporters and the extent of union activity in the
plant.
(b) Threatening to close the plant or to discharge
employees who support the Union in the event that the
Union became the collective-bargaining representative.
(c) Seeking to induce employees to act as informers in
an effort to determine the extent of union activities of
other employees in the plant.
(d) Unlawfully polling employees to determine whether
or not they support the Union.
(e) Discriminatorily laying off employees because the
majority of the employees selected the Union as their
collective-bargaining representative.
(f) Discriminatorily discharging employees because the
majority of the employees selected the Union as their
bargaining representative and because the employees so
laid off were supporters of the Union.
(g) Discriminatorily changing terms and conditions of
employment in order to retaliate against employees for
voting in favor of union representation, and to discourage
membership in the Union.
(h) Refusing to bargain collectively with International
Union of Electrical, Radio and Machine Workers,
AFL-CIO, as the duly certified exclusive bargaining
representative of its employees concerning wages, rates of
pay, hours, and other terms and conditions of employment
in the following appropriate unit:
All production and maintenance employees at the
Respondent's Dayton, Ohio, plant, excluding all office
clerical employees, professional employees, technical
employees, guards and supervisors as defined in the
Act.
(i) Refusing to furnish the Union with requested
information necessary to enable the Union to act fully in
its capacity as the collective-bargaining representative of
the employees in the above unit.
(j) Refusing to meet and negotiate with the Union, as
the duly certified representative of the employees, until all
pending litigation is finally disposed of
(k) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor
Relations Act, as amended.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, as the duly certified
collective-bargaining representative of its employees in the
appropriate unit with respect to rates of pay, wages, hours
of work, and other terms and conditions of employment,
and embody in a signed agreement any understanding
reached.
(b) Furnish the Union with the requested information
pertaining to wage and fringe benefits currently received
by the employees in the bargaining unit.
(c) Recall any employee currently in layoff status,
found herein to have been discriminatorily laid off, to
their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges
previously enjoyed by them, and make them whole for any
loss of pay suffered by reason of their discriminatory
layoffs in the manner set forth in the section of this
Decision entitled "The Remedy."
(d) Offer Wanda Reagan and Virginia Sawmiller
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them, in the manner set forth in the section of this
Decision entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(f) Notify the employees laid off if any are presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(g) Post at its Dayton, Ohio, plant copies of the
attached notice marked "Appendix."29 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's
official representative, shall be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.31
"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
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"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 9, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
This notice is posted pursuant to a Recommended
Order of the Trial Examiner , issued after a trial in which
both sides had the opportunity to present evidence. The
Trial Examiner found that we violated the National Labor
Relations Act and has ordered us to inform our employees
of their rights.
The Act gives all employees these rights:
To organize themselves
To form, join , or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any and all of these things
We assure all of our employees that:
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT threaten our employees with plant
closure, or discharge , or with any other types of
reprisals because they have selected International Union
of Electrical, Radio and Machine Workers, AFL-CIO,
as their exclusive bargaining representative.
WE WILL NOT attempt to get employees to inform on
the union activities and desires of their fellow
employees.
WE WILL NOT unlawfully interrogate employees
concerning their union membership , activities, or
desires, nor will we unlawfully poll our employees in
order to discover their sentiments about the Union.
WE WILL NOT lay off employees because they
selected the Union as their collective-bargaining
representative.
WE WILL NOT discharge employees because they
selected the Union as their collective -bargaining
representative.
WE WILL NOT discriminatorily change terms and
conditions of employment because employees voted in
favor of union representation, or in order to discourage
-membership in the Union.
WE WILL NOT refuse to bargain collectively with the
above Union as the certified collective-bargaining
representative of the employees in the following unit:
All production and maintenance employees at our
Dayton, Ohio, plant, excluding all office clerical
employees, professional employees, technical employees,
guards and supervisors as defined in the Act.
WE WILL NOT refuse to furnish the Union with
information that will enable it to function as the
bargaining representative of our employees in the above
unit.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights under the Act.
WE WILL make whole Virginia Sawmiller and
Wanda Reagan for any loss of earnings they may have
suffered by reason of their discriminatory discharges
WE WILL recall and make whole all employees who
were discriminatorily laid off by us.
WE WILL notify any of our employees if currently in
layoff status and if presently serving in the Armed
Forces of the United States of their rights to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
WE WILL bargain collectively with the above Union
as the duly certified collective-bargaining representative
of our employees in the above unit and if an
understanding is reached, we will sign a contract with
the Union
Dated By
TIIDEE PRODUCTS, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal Office
Building, Room 2407, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686