D. H. Overmyer Co.

National Labor Relations Board - Board Decisions

Mar 22, 1968

170 N.L.R.B. 658 (N.L.R.B. 1968)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. H. Overmyer Co. and Local 781, Miscellaneous
Warehousemen and Production Employees Union,
affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Hel-
pers of America . Case 13-CA-7607
March 22, 1968
DECISION AND ORDER
On July 6, 1967, Trial-Examiner Gordon J. Myatt
issued his Decision in the above-entitled proceed-
ing, 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 Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations 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 Deci-
sion, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial Ex-
aminer only to the extent consistent herewith.
1. The Trial Examiner found, and we agree, that
the Respondent threatened employees in violation
of Section 8(a)(1) of the Act.
2. The Trial Examiner also found that the Union
represented a majority of employees in an ap-
propriate unit on September 29, 1966, and that the
Respondent, by refusing to recognize and bargain
with the Union on and after that date, violated Sec-
' The Respondent excepts to some of the Trial Examiner 's credibility
findings It is the Board's established policy , however, not to overrule a
Trial Examiner 's resolutions with respect to credibility unless , as is not the
case here, the preponderance of all the relevant evidence convinces us that
the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C A 3).
2 During the Respondent 's cross-examination of Cook, the following
testimony was elicited
Q. How much free life insurance did you promise these gentlemen')
A $500.
Q. Individuals get $500 free life insurance just for signing a card')
A All members get $500 life insurance
Q Does an individual get $500 free life insurance for signing this
card9
A. No, sir.
Q. Do you explain that to each individual before they sign them?
A If they ask, sir
Q Did any of the gentlemen ask, to the best of your recollection9
A I believe I talked that over with Frank Stefan about the life in-
surance.
Q Any of the others)
tion 8(a)(5) and (1) of the Act. The Respondent
excepts on the grounds that the Union made
material misrepresentations to the employees While
soliciting their signatures- to union cards and con-
tends, therefore, that the cards did not establish
that the Union had obtained valid designations
from a majority of the employees. ,For the reasons
set forth below, we find merit in these_ exceptions
and contentions.
The Union's business representative, Cook, ob-
tained signatures from a majority of the Respon-
dent's employees. The cards he used provided
blank spaces for information about the signer, in-
cluding one to designate "Beneficiary for your Free
Insurance Policy." In addition, as shown by the
testimony set forth in the margin,' Cook promised
the employees $500 free fife insurance, and ex-
plained to only one individual, who raised, the
question, that the card signers would not become
entitled to the insurance merely by virtue of signing
the cards.
It is apparent, and we find, on the basis of Cook's
testimony and the reference' to "Free Insurance
Policy" on the face of the cards, that the Union was
inducing employees to sign cards by indicating to
them that they would thereupon become entitled to
free life insurance, which was not the case. In any
event, the promise of such a tangible economic
benefit as $500 free life is, in our opinion, a sub-
stantial inducement for employees to sign
authorization cards. Such a promise is, moreover,
clearly distinguishable from the "harmless salestalk
or puffing" normally engaged in by union or-
ganizers ." We find, therefore, that the Union sol-
icited and obtained its card designations on the
basis of material misrepresentations and, further,
that cards so obtained do not accurately reflect the
free choice of the employees. The General Counsel
has, in these circumstances, failed to establish that
A I just remember talking to Frank about that.
Redirect examination by the General Counsel elicited the following
testimony.
Q When did you tell these card signers that they would get $500
free life insurance)
A Well in signing the card with-not all of them, some of them
asked about it , what is the free life insurance , and I told them every
member was covered by a $500 life insurance policy on the payment
of their dues
Q Well where did they see something about life insurance?
A There is "free life insurance" at the bottom of the card
Q So that you didn't-you did not say anything to them about in-
surance other than when they asked a question9
A Yes, sir
Q And then you told them it was $500
A. Yes, sir
Q Do you recall specifically who asked you about insurance9
A. The only person I can remember is Frank Stefan asked me about
the insurance
There is no other testimony in the record with regard to this matter
'See G & A Truck Line, Inc, 168 NLRB 846, cf. Wagner Electric
Coiporation, 167 NLRB 532.
170 NLRB No. 69
D. H. OVERMYER CO.
a "majority of employees freely and fairly reflected
an intention-to designate the-Union" as the bargain-
ing representative.' Accordingly, we find, upon the
entire record, that the cards relied on did not
adequately establish the Union's representative
status, and, consequently, that the Respondent's
refusal to recognize and bargain with the Union was
not violative of Section 8(a)(5) and (1) of the Act.
We shall, therefore, dismiss this allegation of the
complaint.'
AMENDED CONCLUSION OF LAW
Delete the Trial Examiner's Conclusions of Law
4, and substitute therefor the following:
"4. The Respondent has not violated Section
8(a)(5) and (1) of the Act by refusing to recognize
and bargain collectively with Local 781, Miscel-
laneous Warehousemen and Production Employees
Union, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America."
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, as modified
below, and hereby orders that the Respondent, D.
H. Overmyer Co., Chicago, Illinois , its officers,
agents , successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified herein:
1. Delete paragraph 1(c) of the Trial Examiner's
Recommended Order and reletter the- succeeding
paragraph accordingly.
2. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order.
'N L.R.B. v Preston Products Company, Inc , 373 F 2d 671 (C.A D C.),
enfg. 158 NLRB 322, John P Serpa, Inc, 155 NLRB 99, reversed and re-
manded sub nom. Retail Clerks Union, Local 1179 v N L R.B , 376 F 2d
186 (C.A. 9), conclusions of court adopted on remand John P Serpa, Inc.,
166 NLRB 336.
5 Our dissenting colleagues have proceeded on an erroneous premise by
concluding that our rejection of the Union's cards as evidence of majority
status has been predicated solely upon the language of the card , itself. As
our Decision clearly indicates, our finding with respect to these cards is
based upon the reference to."Free Insurance Policy" on the face of the
cards and Union Business Representative Cook's oral representations to em-
ployees at the time of the solicitations, which have been detailed at footnote
2 of our Decision
6 I HEREBY ACCEPT MEMBERSHIP IN LOCAL
UNION NO. 781, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, and of my own free will
hereby authorize the above union to act for me as the
exclusive collective bargaining agency in all matters
pertaining to rates of pay, wages, hours of employ-
659
3. Reletter paragraph 2(b) of the Trial Ex-
aminer's Recommended Order as 2(a), and para-
graph 2(c) as 2(b), deleting from the new para-
graph 2(a) that part thereof which reads "to be
furnished by ..." and substitute therefor "on forms
provided by ...."
4. Delete from the "Appendix" attached to the
Trial Examiner's Decision the second and third in-
dented paragraphs.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges that
the Respondent refused to bargain in violation of
Section 8(a)(5) and (1) of the Act.
MEMBERS BROWN AND JENKINS, dissenting in part:
The majority rejects the card, set forth below,'
for purposes of establishing the Union's representa-
tive status because, in their opinion, the card itself
led employees to believe that they would receive
free insurance policies immediately upon affixing
their signatures and before payment of any union
dues or initiation fees. The policy becomes opera-
tive without additional cost upon satisfaction of
these membership requirements, but our colleagues
conclude that employees were misled because the
effective date of the insurance coverage awaits such
payments.
In this age of "free" coupons or stamps with
purchases of groceries and other consumer
products or "free" servicing with purchases of ap-
pliances or "free" alterations with purchases of
wearing apparel, we consider it wholly unrealistic
that the employees would believe they would
receive the insurance without satisfying the conven-
tional financial requirements for union member-
ship. Indeed, we do not believe that, even our col-
leagues would find that, by failing to mention dues
and initiation fees, the card also misled employees
into believing that membership did not entail such
meat, or other conditions of employment. ALL CARDS
ARE STRICTLY CONFIDENTIAL.
Employed by
Name o Company
Your
Home Teleph
one Signature
(Write - of ant
Class of Work Clock No. Shift Home Address
City State Soc. Sec. No.
Beneficiary for Your
Free Insurance Policy Date
THINK UNION - TALK UNION - BE UNION
HAymarket 1-7005
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligations or into believing that they were entitled
to enjoy all other benefits of union membership be-
fore paying their dues and initiation fees.
The card plainly designates the Union as bargain-
ing representative and a majority' of the employees
signed such card. We therefore disagree with our
colleagues' contrary finding.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a
charge filed September 29, 1966,1 and upon an
amended charge filed October 26, by Local 781,
Miscellaneous Warehousemen and Production Em-
ployees Union, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
(hereinafter referred to as the Union), a complaint
was issued on November 30 against D. H. Over-
myer Co. (hereinafter referred to as the Respon-
dent). The complaint alleges that the Respondent
violated Section 8(a)(1) of the Act by unlawfully
interrogating employees, by threatening employees
with layoffs and reductions in pay, and by promis-
ing and granting employees wage increases and
other benefits in order to discourage their activities
on behalf of the Union. The complaint also alleges
that the Respondent violated Section 8(a)(5) of the
Act by refusing to bargain with the Union as the
majority representative of the employees. The
Respondent's answer admits certain allegations in
the complaint but denies the commission of any un-,
fair labor practices. The Respondent affirmatively
asserts that it has a good-faith doubt that the Union,
represents a majority of the employees in an ap-
propriate unit.
This case was tried before me on January 23 and
24, 1967, at Chicago, Illinois. Briefs have been sub-
mitted by the General Counsel and the Respondent,
and they have been duly considered by me in arriv-
ing at my decision in this matter.'
Upon the entire record in this case, including my
evaluation of the witnesses based on my observa-
tion of their demeanor, and upon the relevant
evidence contained in the record, I make the fol-
lowing:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent is an Illinois corporation en-
gaged in the business of warehousing goods and
Unless otherwise indicated, all dates herein refer to the year 1966
' Subsequent to the hearing, the Respondent submitted a motion to cor-
rect certain errors in the transcript of the testimony There being no op-
position thereto and after a careful review of the transcript, the Respon-
dent's motion is granted and hereby made a part of the record
materials. The Respondent- maintains an office and
a warehouse in Franklin Park, Illinois , and another
warehouse in Elk Grove Village, Illinois;- both loca=
tions are suburbs of Chicago, Illinois. During the
past calendar or fiscal year, the Respondent has
received in excess of $50,000 for warehousing
goods and materials which were shipped directly to
the above locations from places-outside the State of
Illinois. Accordingly, I find that the Respondent is,
and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 781, Miscellaneous Warehousemen and
Production Employees Union, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
In 1965, the Respondent maintained only one
warehouse facility in the Chicago area. This was the
warehouse, located in Franklin Park , Illinois.
Although the Respondent staffed the warehouse
with supervisory personnel, the physical work in the
warehouse was performed by employees of another
concern.' The Union began picketing the' Respon-
dent 's warehouse , ' and as a result of `this-" informa-
tional" picketing the Respondent filed several
charges-with the Board and instituted proceedings-
in the Federal District Court. Pursuant to a private
agreement between the Respondent and the Union,
the picketing ceased and the Respondent withdrew
all charges and dismissed the court action.
In May 1966, the Respondent opened a second
warehouse in Elk Grove Village, Illinois. This facili-
ty, as well as the Franklin Park warehouse, was
staffed by employees who were on the Respon-
dent's payroll. It was approximately at this time that
the Union commenced the organizing -campaign
which provides the basis for the present charges.'
B. The Events Preceding the Union's Demand for
Recognition
As noted, the Union began its campaign to or-
ganize the warehouse employees on the Respon-
dent's payroll in May. Kenneth A. Cook, Jr., vice
president and business representative of the Union,
' It appears from the documents in evidence that the Respondent had an
arrangement with a firm called All Work , Inc., and that All Work supplied
all of the Respondent's laborers
D. H. OVERMYER CO. 661
made numerous visits to the Respondent's
warehouses in order to persuade the employees to
sign authorization cards for the Union.' On June 9,
Cook visited the Elk Grove Village warehouse and
succeeded in getting employees Chester Gunderson
and John Visser to- sign authorization cards for the
Union.5 Each of these employees had been given a
card by Cook during a previous visit. Shortly after
they signed the cards, both Gunderson and Visser
informed Marvin Bestvena, the warehouse
manager, and Lou Darlin, Respondent's vice pre-
sident in charge of the Chicago area, that they had
signed cards for the Union. Each indicated that
they had done so "reluctantly." According to
Visser, "It was a cold morning and he [Cook] got
on our backs and we figured the only way we could
get rid of him was to sign the card.," Visser testified
that Bestvena stated, "Well, you should have told
me sooner."
In July, both Gunderson and Visser were in-
troduced by Bestvena and Darlin to an official from
the Respondent's personnel office in New York. As
each of these employees had successfully
completed the 60-day probationary period required
of new employees, the personnel official talked to
them about the increases they could expect in their
pay and the benefits that they would be entitled to
as permanent employees, such as hospitalization,
medical insurance, paid holidays, and paid vaca-
tions. Visser testified that the personnel official told
him that "... we would get a raise, ahead of that
which the union would be able to do for us, and
that our pay would be higher than what a union
representative would be able to do for us."
On August 19, Gerald Rozek was appointed
general manager of the Respondent's Chicago area
warehouses.' Shortly after Rozek became general
manager, Gunderson and Visser informed him that
they had signed authorization cards for the Union.
Both indicated that they had done so "reluctantly,"
and according to Rozek, gave the impression that
they signed in order to get the union representative
"off their backs."
Sometime between August 21 and September 28
(the exact date is not clear in the record), Rozek
had a conversation with employee Harry Burtt in
the Franklin Park warehouse. Burn was in Rozek's
office, and Rozek informed him that he knew a
union representative had been in the building. He
authorized Burtt to tell anyone who wasn't sup-
posed to be in the warehouse to leave. According
' In its brief, the Respondent makes much of the fact that Cook's visits to
warehouses were never authorized by management In my judgement, this
is totally irrelevant and has no bearing on the issues involved in this case
5 These individuals were regular full-time employees, Gunderson was a
forklift operator, and Visser was classified as a warehouseman. Both em-
ployees were hired May 16, 1966
6 Rozek had been employed by the Respondent since August 1965 Prior
to becoming general manager he was regional sales manager.
I Burtt was hired on August 21, as a regular full-time employee At the
time of the conversation Burtt was a probationary employee, and he did not
achieve permanent status with the Respondent until October 24.
to Burtt, Rozek stated that he knew that some of
the men had signed authorization cards. Rozek also
asked Burtt to show him a copy of an authorization
card in the event that he received one. On Sep-
tember 28, Burtt signed a card for the Union, and
shortly thereafter told Rozek that he bad done so.
Rozek stated that he had no ill feelings toward
Burtt, "whether [he] signed it or not."'
In addition to Burtt, Cook received signed cards
from employees Benedetto and Powell on Sep-
tember 28. Both of these employees worked at the
Franklin Park warehouse; Benedetto was a regular
full-time forklift operator and Powell was classified
as an "irregular part-time" employee,' The follow-
ing day, Cook received a signed authorization card
from employee Frank Stefan. Stefan, a full-time
postal employee, worked on a regular part-time
basis for the Respondent. Cook went to the post of-
fice where Stefan was employed and got the card
signed at approximately 1 p.m.
C. The Union's Demand on September 29
After he received the card from Stefan, Cook
went to the Respondent's Franklin Park office and
claimed majority and demanded recognition as the
collective-bargaining representative of all of the
warehouse employees. Cook arrived at-Rozek's of-
fice somewhere between 3:45 and 4 p.m.1° Cook
recited the names of the employees who had signed
cards and started to read from a letter directed to
the Respondent in which the Union claimed majori-
ty and asked for recognition. Rozek left his office
and brought in William Dutton, Respondent's re-
gional manager for the Chicago area. Cook re-
peated his claim of majority and read from the
letter requesting recognition. He placed six
authorization cards on Rozek's desk. He asked
Rozek to check the signatures on the card. Rozek
refused to look at the cards and suggested to Cook
that he go to the Board. According to Rozek, he
told Cook that he had "a reasonable doubt that he
[Cook] did in fact represent all of Respondent's
employees." On direct examination Rozek stated
that he did not look at the cards "[b]ecause I did
not feel the cards were necessarily a true feeling of
my employees' attitudes. I did not know what the
cards said, and did not, at that time, feel that I
should look at them."
After Cook left the Respondent's warehouse, he
met employee O'Neil in the Respondent's parking
A Burtt testified as if his conversation with Rozek only took place after he
had signed the union card Upon further questioning, however, it became
evident that Burtt had two conversations concerning the Union with
Rozek , before and after he signed the card
'The different classifications of the employees will be developed more
fully in the section relating to the unit question.
16 The time is set forth here because it underscores the fact that Cook
was in the Respondent 's offices , several miles from the city of Chicago, at
the very time that the original charge alleging that the Respondent refused
to bargain with the Union was filed in the Board 's Regional Office in
Chicago Cook freely admitted, however, that the Union had filed the
charge before he made the demand for recognition
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lot. O'Neil signed a card for the Union at that time.
Upon leaving the Franklin Park warehouse, Cook
had the authorization cards photocopied and he en-
closed the copies in a letter to the Respondent,
claiming majority and demanding recognition.
On October 2 or 3, Dominic Benedetto, a regular
employee at the Franklin Park warehouse, in-
formed Rozek that he had signed a union card. Ac-
cording to Benedetto, he said "We had the union
man in here today and I signed a card." Benedetto
told Rozek he signed a card "because I think we
ought to have more steady help and if you pay
more, we would have it." Benedetto candidly ad-
mitted that Rozek made no threats or promises. In-
deed, in Benedetto's words there was "no pressure
whatsoever." Benedetto testified that Rozek told
him that he (Benedetto) "had the right" to sign the
card, and that this statement was made in the
presence of "a couple of employees."
On October 4, the Respondent's attorney sent a
telegram to the Union rejecting the Union's request
for recognition "because of the Company's good-
faith doubt that Local 781 does represent a majori-
ty of its employees in [an] appropriate bargaining
unit." The telegram stated that if the Union were
certified by the Board as representative of the
Respondent's employees, the Respondent would
bargain in good faith with the Union. That same
day, Rozek returned the copies of the authorization
cards in a letter to the Union, indicating that he was
doing so pursuant to instructions from the Respon-
dent's attorney.
Cook continued to meet with the Respondent's
employees in early October to explain the wage
rates and benefits that the Union hoped to
negotiate on their behalf. After one such meeting,
O'Neil became concerned about his status as a
part-time employee under the proposed union con-
tract. He approached Rozek, informed him that he
had signed a card and began questioning Rozek
about the Company's wage rates. O'Neil told Rozek
that the men had heard that the Company was
doing well financially, and "the fellows thought
they should deserve a raise because ... [they] were
working hard." Rozek showed O'Neil the Com-
pany's books and O'Neil became convinced that
the information the men had in the warehouse was
not accurate. O'Neil testified that during this con-
versation Rozek told him that it would be
uneconomical for the Company to hire part-time
union employees, because of the benefits that
would have to be paid." O'Neil testified that at no
time during this conversation did Rozek indicate
that part-time employees would be discharged or
laid off if the Union became the collective-bargain-
ing representative.
" It is apparent from the record that the Respondent 's part-time em-
ployees did not receive any of the fringe benefits given to the full-time em-
ployees
About 2 weeks after the Union made its demand
for recognition, Rozek had a conversation with
Stefan and O'Neil in the Franklin Park warehouse.
Stefan testified that Rozek initiated the conversa-
tion by asking how the union meeting went the
evening before. Stefan replied that the meeting had
been fine and he began to extol the benefits that
the Union would attempt to get for the employees.
According to Stefan, Rozek stated that it could be
possible that the employees would lose their jobs if
the Union became their bargaining representative,
because he didn't think that the Company would
hire part-time employees under the terms of a
union contract. Stefan stated that Rozek quoted the
union scale for a forklift operator as being $2.97
and that the Respondent was paying $3.00 an hour
for similar work. Stefan testified that Rozek
promised him a 25-cent-an-hour raise after he
checked into his records. He also stated that he told
Rozek at this time that he had signed a union card.
O'Neil gave a somewhat different version of this
conversation. O'Neil states that Rozek initiated the
conversation by inquiring about the union meeting.
However, he states that Stefan had knowledge of
the union rates for warehouse employees and
quoted them to Rozek. O'Neil testified that he was
present during the entire conversation with Rozek,
but he did not recall Rozek saying anything about
part-time workers. In fact O'Neil stated that he
didn't think this was mentioned.12
Rozek testified concerning this same conversa-
tion. Rozek denied initiating the conversation and
stated that it was Stefan who brought up the subject
of the Union. According to Rozek, Stefan told him
of the wage rates and benefits that the Union in-
tended to seek for the employees and compared
them with the rates that the Company was presently
paying. Rozek testified that he told Stefan that "it
was not the company'; policy to extend benefits
such as insurance, life insurance, medical health in-
surance, paid holidays or paid vacations, to part-
time employees." Rozek stated that these benefits
did apply, however, to the Respondent's full-time
employees. Rozek denied telling Stefan or O'Neil
that the Company would discharge or lay off part-
time employees if the Union became their bargain-
ing representative. Rozek testified that when Stefan
told him that the Union had promised to ask for
$2.75 an hour for part-time employees, he (Rozek)
stated that these were "virtually full-time wages."
Rozek also told Stefan "that if the company was
going to embark on this type of a program, cer-
tainly from an economical standpoint, we would
have to consider having full-time employees."
On October 14, Rozek had a conversation in the
Elk Grove Village warehouse with Gunderson and
12 O'Neil testified that during the conversation Rozek told him that he
would receive a pay raise This raise was pursuant to a commitment made
to O'Neil at the time he was hired, that he would receive a pay increase
within 30 to 60 days
D. H. OVERMYER CO. 663
Visser. According to Visser, Rozek told him that
the Respondent had warehouses all over the
country and that there were no union men working
in these establishments. He further stated that the
Company "gives the men raises before the union
would give raises, . . . thereby satisfying the em-
ployees." Visser recalled that Rozek told him that if
the Union were voted in, his pay would automati-
cally be cut because the Union's rates for
warehousemen were lower than the rates paid by
the Respondent. Visser replied that he would quit if
his pay were cut. Testifying concerning this same
conversation, Rozek denied stating that the em-
ployees' wages would be cut back to the union con-
tract rate. Rozek testified that he told the em-
ployees, "I don't know what they are promising you
specifically, but I have had occasion to look at a
local 781 contract currently in effect, and the wage
rates stated in that contract for a forklift operator
was $2.97 an hour, and for a warehouseman it was
$2.77 an hour .... You gentlemen are also aware
of what your current wage rates are and what our
company benefits are." Rozek denied making the
statement that none of the Respondent's
warehouses throughout the country had unions
representing the employees. According to Rozek,
the Respondent has over 200 warehouses
throughout the country, and to his knowledge em-
ployees in three of these warehouses are
represented by unions.
D. The Appropriate Unit
The Union requested recognition as a collective-
bargaining representative of the employees in the
following unit:
All warehouse employees employed ... at
10525 Waveland Ave., Franklin Park and 600
Pratt Blvd., Elk Grove Village, Illinois, exclud-
ing guards, professional employees, technical
employees, office clerical employees and su-
pervisors as defined in the Act.
This unit is also alleged in the complaint by the
General Counsel as an appropriate bargaining unit.
The evidence discloses that the warehouse em-
ployees fell' into' different categories based on the
terms of their employment. At the Elk Grove Vil-
lage warehouse there were two regular full-time
employees (Gunderson, a forklift operator, and
Visser, a warehouseman). Two regular full-time
employees were also employed at the Franklin Park
warehouse. These employees, Benedetto and Burtt,
were forklift operators. In addition to these em-
ployees, the Respondent employed Stefan as a
regular part-time employee at the Franklin Park
warehouse. Stefan worked from 1:30 p.m. to 5 p.m.
daily. There were two other classes of employees at
Franklin Park. One group, described as irregular
13 These employees were McDougal, Kroll, Thuotte, and Powell. As ir-
regular employees these individuals had no set schedule and only worked
when the Respondent needed them.
part-time employees, consisted solely of airline
pilots and copilots. The men in this group were
working for the Respondent because their compa-
nies were on strike at the time.13 The other group of
employees were classified as temporary student
help. There were only two individuals in this
category, O'Neil and Kessler. As students, these
employees were allowed to set their own schedule
and to determine the number of hours that they
would work each week. The record shows, espe-
cially in the case of O'Neil, that the hours these em-
ployees worked each month fluctuated con-
siderably.
After the evidence was developed at the hearing,
the General Counsel conceded that the irregular
part-time employees and the employees classified
as temporary student help should be excluded from
the bargaining unit. I agree. Accordingly, I find the
appropriate unit for purposes of collective bargain-
ing to be:
All full-time and regular part-time warehouse
employees employed at 10525 Waveland
Avenue, Franklin Park, and 600 Pratt Bou-
levard, Elk Grove Village, Illinois, excluding
guards, professional employees, technical em-
ployees, office clerical employees, and super-
visors as defined in the Act.
E. Concluding Findings
In both its oral and written requests for recogni-
tion and bargaining the Union. clearly defined the
unit which it was seeking. The Respondent attempts
to cast doubt on the scope of the unit by arguing
that a single warehouse unit is presumptively ap-
propriate. But whether a separate unit of employees
for each warehouse is also appropriate is not the
issue here. The law does not impose a duty on the
Union to seek recognition in the most appropriate
unit, it merely requires that recognition be sought
in an appropriate unit.14 As I have already found
that a unit encompassing the warehouse employees
of both warehouses is an appropriate unit, the
Respondent's arguments in this regard must be re-
jected.
More critical to the unit question, however, is the
composition of the unit. Cook, the union represen-
tative, testified that he was seeking all warehouse
employees except those who were pilots in their
full-time jobs. The unit which I have found excludes
not only these individuals but also all other ware-
house employees who work on an irregular basis.
Thus, all irregular part-time employees and the
employees classified as temporary student help' are
excluded from the bargaining unit. The significant
question at this point is whether the variance in the
unit composition, due to the exclusions, is sufficient
to vitiate the Union's request for bargaining. I find
'4 Florence Printing Co.v.NLRB,333F2d289(CA 4) Cf NLRB
v Overnice Transportation Co., 308 F.2d 279 (C A. 4)
664 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
that it is not. The excluded employees perform the
same work as the unit employees, although on an
irregular basis because of their private arrange-
ments with the Respondent. Their inclusion or ex-
clusion does not affect the Union's majority
status,15 and their exclusion does not alter the unit
requested by the Union; i.e., warehouse employees
of both warehouses. In these circumstances, I find
that the variance in the composition of the unit is
not substantial enough to invalidate the Union's
request for bargaining for the warehouse em-
ployees. United Butchers Abattoir, Inc,, 123 NLRB
946, 956. See also Colecraft Mfg. Co., Inc., 162
NLRB 680 and American Manufacturing Company
of Texas, 139 NLRB 815. Thus, I find that on Sep-
tember 29, and at all times material thereafter, the
Union represented a majority of the employees in
the unit found appropriate.16
But majority status in an appropriate unit at the
time of demand for recognition and bargaining,
standing alone, is not sufficient to establish a viola-
tion of Section 8(a)(5). The General Counsel must
show by affirmative evidence that the Respondent's
rejection of the Union's request was made in bad
faith. Aaron Brothers Company of California, 158
NLRB 1077; John P. Serpa, Inc., 155 NLRB 99,
revd. 376 F.2d 186 (C.A. 9).17 "Whether an em-
ployer is acting in good or bad faith in questioning
the Union's majority is a determination which of
necessity must be made in the light of all the rele-
vant facts of the case, including any unlawful con-
duct of the employer, the sequence of events, and
the time lapse between the refusal and the unlawful
conduct." Aaron Brothers Company of California,
supra; Joy Silk Mills, Inc., 85 NLRB 1263, enfd.
185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S.
914.
In the instant case there is no evidence of unlaw-
ful activity by the Respondent prior to- the Union's
demand on September 29. Both Visser and Gunder-
son voluntarily disclosed to management that they
had "reluctantly" signed union authorization cards.
There is no evidence of any threats or coercion
directed at these employees after their disclosure.
The evidence also shows that Rozek had a conver-
sation with employee Burtt prior to the Union's de-
mand, in which Rozek informed Burtt that he was
aware that a union representative had been in
the building. Rozek asked Burtt to tell any un-
authorized person he found in the warehouse to
leave. During the course of this conversation Rozek
also asked Burtt to show him a copy of the union
authorization card in the event that he received
one. The mere fact that Rozek gave- such instruc-
tions to Burtt does not warrant the conclusion, that
the Respondent was interfering with employee
rights guaranteed by Section 7 of the. Act. In the
circumstances of this case , the Respondent was
under no duty to allow the union representative
free access to the employees while they were in the
warehouse itself . Nor is the request to be shown a
copy of a union authorization card unlawful in this
context.
After the Union's demand, however, Rozek had
several conversations with the warehouse - em-
ployees which in my judgement take on a different
hue. On October 14,' he spoke to Visser, in the
presence of Gunderson, at the Elk Grove Village
warehouse. During the conversation Rozek told
Visser that the wage rates for warehousemen pro-
vided for in- the Union's current contract were
lower than the wage rates which the Respondent
was presently paying. Rozek stated that if the
Union were voted in, his (Visser's): pay would auto-
matically be lowered to the contract rate. Rozek
also indicated that there were no union-represented
employees in the Respondent's other warehouses
because "[the Company] gives the men raises be-
fore the union would give raises , and thereby
satisfying the employees." While Rozek denied
making the statements attributed to him by Visser,
he admitted that he pointed out that the rates in the
Union's current contract were lower than the rates
which the Respondent was presently paying. -Based
on my-observation of these two witnesses and on
their demeanor while testifying, I credit Visser's
version of what was said during this conversation.
Visser, still in the Respondent's employ, impressed
me as being candid and straightforward in his
testimony, while Rozek appeared to tailor his
answers in this regard to serve his interests. There-
fore, I do not credit his denial concerning the state-
ments made to Visser. Accordingl-y, I find that the
Respondent violated Section 8(a)(1) of the Act
when Rozek told Visser that his wages would be cut
if the employees voted the Union in.
Rozek also had a conversation at the ' Franklin
Park warehouse with part-time employees Stefan
and O'Neil, approximately 2 weeks after the Union
made its demand. During this conversation Stefan
15 If these employees were included in the unit, the Union would have
had 6 signed authorization cards in a unit of I 1 employees at the time of the
oral request for recognition on September 29 Prior to mailing its written
request for bargaining the Union secured the card of O'Neil, thereby in-
creasing the number to seven On.the other hand, if these employees are
excluded, the number in the unit is reduced to five, all of whom signed
cards before the demand on September 29 -
16. These unit employees are Visser , Gunderson , Burtt, Benedetto, and
Stefan, The fact that Visser and Gunderson indicated that they had signed
the authorization cards "reluctantly" does not in any way invalidate their
designation of the Union as their representative ., Neither of these em-
ployees took any affirmative step to revoke their designation.
17 In reversing the Board in Serpa, the Ninth Circuit did not disagree with
the Board's stated principle that the General Counsel must affirmatively
establish the existence of bad faith in order to sustain a violation Rather,
the court held that the facts in that case adequately supported the conclu-
sion that the employer acted in bad faith.
11 The exact date of this conversation is ascertained from Visser's af-
fidavit which is in evidence as General Counsel's Exhibit 13
D. H. OVERMYER CO.
told Rozek that the Union was going to seek to get
$2.75 an hour for part-time employees.19 Rozek ad-
mitted stating that if the Company were required to
pay $2.75 an hour plus the other fringe benefits to
part-time employees then the Respondent, from the
standpoint of economics, would have to consider
having full-time employees. Rozek's statements to
Stefan and O'Neil carry the clear implication that
the part-time employees' jobs were in jeopardy if
the Union became their bargaining representative
and attempted to get increased benefits for them.
Statements of this nature most certainly interfere
with and restrain employees in the exercise of their
rights to select,a collective-bargaining representa-
tive, and are violative of Section 8(a)(1) of the
Act:
The remaining question thus becomes whether
the Respondent's subsequent unlawful conduct is
sufficient to establish that the prior refusal to
recognize and bargain with the Union was made in
bad faith. I find that it is in the circumstances of
this case. While I am mindful of the fact that the
Board has stated that other unlawful conduct is not
a sine qua non to a finding of bad faith and that the
determination of good or bad faith "of necessity
must be made in the light of all relevant circum-
stances of a given case, 3920 I find, nonetheless, that
the Respondent's conduct here was calculated to
destroy the Union's majority status. This is not a
situation where,the unlawful statements were made
by a low-level supervisor, as in Strydel Incor-
porated,21 nor is it a situation where the statements
were made to a small number of employees in a
large bargaining unit, as in the case of Hammond &
Irving, Incorporated.22 Rozek was the general
manager in charge of both warehouses and his un-
lawful statements were directed to three of the five
employees in the bargaining unit. I, find, therefore,
that the General Counsel has sustained the burden
of establishing that the Respondent acted in bad
faith when it rejected the Union's demand for
recognition and bargaining, and that the Respon-
dent refused to bargain in order to gain time to un-
dermine the Union and to dissipate its majority
status. Accordingly, I find that the Respondent has
violated Section 8(a)(5) of the Act. Joy Silk Mills,
Inc., supra.
10 Stefan also testified that during the conversation Rozek said that the
part-time employees could possibly lose their jobs because the Respond-
ent would not hire them under a union scale, and that Rozek promised
him a 25-cent-an-hour pay increase after he checked Stefan's employ-
ment records O'Neil, who was present during the entire conversation,
did not recall Rozek stating that the part-time employees would lose their
jobs if the Union got in. Indeed, Stefan under cross-examination admitted
that he was never under the impression that he would automatically lose
his job if the Union became the collective-bargaining representative.
Rozek testified that Stefan asked him for a raise, and that he informed
Stefan that his wage scale would have to be reviewed before anything
could be done In arriving at my findings concerning Rozek's conversa-
tion with Stefan and O'Neil, I do not rely on the testimony of Stefan
CONCLUSIONS OF LAW
665
1. D. H. Overmyer Co. is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 781, Miscellaneous Warehousemen and
Production Employees Union, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By informing warehouse employees that their
wage rates would be cut in the event that the Union
became their bargaining representative, and by in-
forming part-time employees that the Company
would have to consider hiring full-time employees
in the event that the Union became the bargaining
representative, the Respondent has engaged in un-
fair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By refusing to bargain collectively with Local
781, Miscellaneous Warehousemen and Production
Employees Union, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the ex-
clusive representative of the Respondent's em-
ployees in an appropriate unit described below, the
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(5) and (1) of the Act;
All full-time and regular part-time warehouse
employees employed at 10525 Waveland
Avenue, Franklin Park, and 600 Pratt Bou-
levard, Elk Grove Village, Illinois, excluding
guards, professional employees, technical em-
ployees, office clerical employees, and super-
visors as defined in the Act.
5. 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 certain unfair labor practices, I shall recommend
the issuance of an order that it cease and desist
where such testimony is uncorroborated or unsupported by other reliable
evidence. Stefan tended to expand the facts while testifying in order to
make his point. Moreover, the evidence shows that concerning certain
facts, his memory was faulty. Thus Stefan testified in a very positive
fashion that he was still employed by the Respondent as late as December,
while the records show that he left his job on October 28 Therefore, I
find that Rozek did not promise Stefan a wage increase nor did he
explicitly state that the part-time employees would lose then-jobs if the
Union became their representative.
$0 H & W Construction Company, Inc., 161 NLRB 852, Aaron Brothers,
supra.
41 156 NLRB 1185, 1186.
22 154 NLRB 1071, 1073.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom, and that it take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As I have found that the Respondent has refused
to bargain collectively with the Union as the exclu-
sive bargaining representative of a majority of the
Respondent 's employees in the unit found ap-
propriate, I shall recommend that the Respondent
cease and desist from refusing to bargain, and
further, that upon request the Respondent bargain.,
in good faith with the Union as such representative,
and, if an understanding is reached, embody such
understanding in a signed agreement.
Accordingly, upon the foregoing findings of fact
and 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 D. H. Overmyer Co., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Informing warehouse employees that their
wages will be automatically reduced in the event
that they select Local 781, Miscellaneous
Warehousemen and Production Employees Union,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as their collective-bargaining representa-
tive.
(b) Informing part-time employees that the
Respondent will have to consider hiring full-time
employees in the event that the employees select
the above-named Union as their collective-bargain-
ing representative.
(c) Refusing to recognize and bargain collective-
ly in good faith with the above-named Union con-
cerning wa&es, rates of pay, hours, and other terms
and conditions of employment as the exclusive
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time warehouse
employees employed at 10525 Waveland
Avenue, Franklin Park, and 600 Pratt Bou-
levard, Elk Grove Village, Illinois, excluding
guards, professional employees, technical em-
ployees, office clerical employees, and super-
visors as defined in the Act.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of all its employees in the unit found appropriate
herein and embody in a written signed agreement
all understandings reached.
(b) Post at its warehouse in Elk Grove Village
and Franklin Park, Illinois, copies of the attached
notice marked "Appendix."23 Copies of said notice,
to be furnished by the Regional Director for Region
13, after being duly signed by an authorized
representative of the Respondent, shall be posted
immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the said Regional Director, in writing,
within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to
comply herewith.24
IT IS FURTHER RECOMMENDED that the allegations
of the complaint alleging as unlawful any conduct
other than found unlawful herein be dismissed.
21 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 "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT tell our employees that their
wages will automatically be reduced or that we
will no longer consider hiring part-time em-
ployees in the event that they select Local 781,
Miscellaneous Warehousemen and Production
Employees Union, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other labor organization, as their collec-
tive-bargaining representative.
WE WILL, upon request, bargain collectively
with the above-named Union as the exclusive
representative of all our employees in the fol-
lowing appropriate unit:
All full-time and regular part-time
warehouse employees employed at 10525
Waveland Avenue, Franklin Park, and 600
Pratt Boulevard, Elk Grove Village, Il-
D. H. OVERMYER CO. 667
linois, excluding guards , professional em-
ployees, technical employees, office cleri-
cal employees , and supervisors as defined
in the Act.
WE WILL embody in a signed document any
and all agreements reached with the above-
named Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-
organization, to form labor organizations, to
join or assist Local 781, Miscellaneous Ware-
housemen and Production Employees Union,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other labor
organization, to bargain collectively through
representatives of their own choosing, and to
engage in any other concerted activities for the
purposes of collective bargaining or other
mutual aid or protection, or to refrain from any
or all such activities, except to the extent that
such may be affected by an agreement requir-
ing membership in a labor organization as a
condition of employment as authorized by
Section 8(a)(3) of the Act, as amended.
All our employees are free to become or remain,
or to refrain from becoming or remaining , members
of the above-named Union, or any other labor or-
ganization.
D. H. OVERMYER CO.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 881 U.S. Courthouse and Federal Office
Building , 219 S. Dearborn Street , Chicago , Illinois
60604, Telephone 828-7570.