Interpace Corp.

National Labor Relations Board - Board Decisions

Apr 22, 1971

189 N.L.R.B. 132 (N.L.R.B. 1971)

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interpace Corporation and United Cement , Lime and
Gypsum Workers International Union , AFL-CIO
and Local 472, Laborers International Union of
North America, AFL-CIO, Party to the Contract.
Case 3-CA-4144
April 22, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On December 22, 1970, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent and the Party to the Contract filed
exceptions to the 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 this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Interpace Corporation, Albany, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case , heard at
Albany, New York, on October 7 and 8, 1970, pursuant to
charges filed by the Charging Party (herein called the
The General Counsel's motion to correct transcript is hereby granted
except for the correction proposed regarding p 92, 117 Although the
Company objects to changing "Eddie" to "Windy" on p 260, 122, it
makes less sense to attribute the quotation to Eddie than to Windy and, in
my opinion, counsel for the Company's cross-examination of the witness at
Gypsum Workers) on June 3 and August 6, 1970, and a
complaint issued August 18, 1970, presents questions
whether the Respondent (herein sometimes called the
Company), (1) violated Section 8(a)(2) and (1) of the Act by
rendering assistance and support to the Party to the
Contract (herein called Local 472), (2) violated Section
8(a)(3) and (1) of the Act by discharging Robert Wanninger
pursuant to the union-secunty provision of its contract with
Local 472, and (3) violated Section 8(a)(1) of the Act by
engaging in various alleged acts of interference, restraint,
and coercion.
Upon the entire record in the case,' my consideration of
the briefs filed by the General Counsel, the Company, and
Local 472, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company, a Delaware corporation, is engaged in the
manufacture, sale, and distribution of concrete pipe and
ceramic products at various locations in the United States,
including plants at Wharton, New Jersey, and Hudson,
New York. The latter plant is the only plant directly
involved in this proceeding. During the year preceding the
issuance of the complaint the Company's incoming
shipments of raw materials to its Hudson, New York, plant
from out-of-state sources, and its outgoing shipments of
finished products to out-of-state destinations, each
amounted to more than 50,000 worth.
Upon the foregoing facts I find that the Company is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Gypsum Workers and Local 472, the Party to the
Contract, are both labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Company's Acts of Assistance to and
Support of Local 472
1. Background
Local 472 has represented employees at the Company's
Wharton, New Jersey, plant for about 20 years. In the first
half of 1969 Local 472 stewards heard that the Company
was considering curtailing operations at Wharton and
opening a new plant in New York State. This was reported
to James Carroll, then the vice president of Local 472, who
discussed the matter with James Frawley, the Company's
manager of labor relations. Frawley confirmed that the
Company had the making of such a change under
p 262, 1 5-24 tends to confirm this view P . 260, 122, is hereby corrected in
accordance with the General Counsel 's request The General Counsel's
motion to correct transcript and the Respondent 's response thereto are
hereby made TX Exh I and 2
189 NLRB No. 12
INTERPACE CORPORATION 133
consideration. In July 1969, Vice President Carroll by letter
requested the Company to negotiate concerning the closing
of the Wharton plant and its effect upon the Wharton
employees.
At a meeting at Local 472's office in Newark in October
1969, the Local 472 representatives urged upon the
Company's representatives that they extend the Wharton
contract, which still had 1-1/2 years to run, so as to cover
the employees at the new plant at Hudson. In support of
this request the Local 472 representatives stated that the
company was moving its manufacturing operations to
Hudson and that in these circumstances it was appropriate
that Local 472 have the right to represent the employees
there. The Company's representatives refused, saying that if
the Hudson plant were going to be organized, then let it be
organized, but that the Company was going to stay out of it.
Thereafter, Vice President Carroll queried Labor Rela-
tions Manager Frawley by telephone about when the
Company was going to commence hiring at Hudson.
Frawley said sometime early in November. Carroll and
Local 472 Business Representative Richard Tissiere went to
Hudson on Wednesday, November 5, 1969, and found that
the Company had not yet started to do any hiring. After
talking to "supervision," Carroll found out that the
Company was going to commence hiring the following
week. Labor Relations Manager Frawley was at the
Hudson plant on November 4, 5, and 6.
On Friday, November 7, 1969, Labor Relations Manager
Frawley received a telephone call from Mr Straub, a
business representative for the Gypsum Workers, which
represented the employees at the Company's Buffalo, New
York, plant. In the course of the conversation Straub, after
indicating that his organization was interested in organizing
the Hudson employees, asked whether the Company had
done any hinng at Hudson. Frawley said no. Although
Straub asked when the Company was going to start hiring
at Hudson, Frawley, as he admitted, did not tell Straub the
Company's plans regarding hiring at Hudson. At this time,
however, arrangements were being made to have Henry
Hautau, personnel manager at the Company's East
Brunswick, New Jersey, plant, go to Hudson on Monday
morning, November 10, for the purpose of hiring a staff
there, and Frawley was aware of this plan.2 Frawley was
also cognizant at this time that other unions were interested
in organizing the Hudson employees, as he testified.
2. The Company commences hiring at Hudson;
assistance to Local 472 in obtaining signatures of
employees on application for membership cards
Preliminarily, it should be stated that Local 472's
majority status, which the General Counsel alleges was
obtained through the Company's unlawful support and
assistance, was achieved in 2 days of solicitation conducted
by Local 472 Vice President Carroll and Business
Representative Tissiere inside the Company's plant on
Monday, November 10, and Tuesday, November 11. Carroll
testified that Local 472 signed up five employees on
November 10 and between 10 and 11 employees on
November 11. The "Application for Membership" cards
which the employees were asked to sign were combined
union-membership and dues-checkoff cards.3
2 1 infer this from the following facts Hautau went to Hudson and
commenced interviewing applicants there between 1l am and 12 n on
November 10 In order for Hautau to plan to travel the approximately 140
miles from East Brunswich to Hudson arrangements had to be made in
advance Friday, November 7, when Straub called Frawley on the
telephone, was the workday preceding Hautau's trip to Hudson. In view of
the fact that Frawley was at the Hudson plant on November 4, 5, and 6,
and that his duties as labor relations manager included overseeing matters
such as this, it is reasonable to infer that Frawley had knowledge of the
plans to commence hinng at Hudson on November 10, when Straub called
him on November 7
3 The full text of the face of the application for membership is as
follows
APPLICATION FOR MEMBERSHIP
HEAVY AND GENERAL CONSTRUCTION LABORERS'
UNION,
LOCAL No 472
Affiliated with
International Union of North America
AFL-CIO
700 Raymond Boulevard , Newark , New Jersey 07105
Date 19
INITIATION FEE
I desire to become a member of the above Local of the
International Hod Carriers', Building and Common Laborers' Union
of America and I hereby make application for membership so that the
officers of said Union may represent me for the purpose of collective
bargaining with my employer and employers in reference to working
conditions, rates of pay and other terms and conditions of
employment
My employer and employers are authorized to deduct dues and
initiation fees from my wages and to forward them to Local Union
No 472 pursuant to any agreement made between my employer and
employers and the Union and this authorization shall be a warrant to
my employer and employers for said purposes and shall be irrevocable
for any period of time permitted by law
I further agree that upon acceptance of this application by the
Union I will pay the regularly required dues and assessments and will
abide by and be bound by the rules, regulations , Constitution and By-
Laws of the said Local Union and the International Hod Camers'
Building and Common Laborers' Union of America
(Continued)
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday morning, November 10, before the arrival of
Personnel Manager Hautau , Plant Manager William
Packett informed Plant Superintendent Richard Sellers, as
the latter testified "that there probably would be some
union officials there to talk to the people that we hired."
When asked, "Did he say which union was going to be
there," Sellers further testified that Packett stated that "it
was the Laborers Union out of New Jersey" (Local 472). A
discussion followed between Sellers and Packett concerning
whether the union officials would be permitted to enter the
office building where the interviewing was to take place.
Sellers recommended, "the weather being a little bad," that
they be permitted to speak to the employees inside the
building. It was agreed between Packett and Sellers that the
Company "would try to find space for any union officials
that came." Later Hautau arrived at the plant and it was
decided that he would do his interviewing in the basement
because considerable construction work was going on in the
uncompleted offices on the first floor. The basement was
one large room approximately 48 feet by 85 feet in size. A
table and some chairs were set up for Hautau alongside one
of the long walls of the basement.
When Vice President Carroll and Business Representa-
tive Tissiere arrived at the plant still later that morning,
Plant Manager Packett introduced them to Superintendent
Sellers and said that "they have permission to be here."
Subsequently, the two union officials were introduced by
Rudy Gottschalk, another company official, to Hautau.
Sellers placed a table for the union officials to use alongside
the other long wall of the basement, opposite and a little
further down from where Hautau was sitting 4
On Tuesday, November 11, sufficient progress had been
made in the completion of the offices on the first floor to
Name
Street
City and State
Occupation
Employed at_
Date of Birth
(Month, Day, Year)
Social Security No.
Health
Telephone Number
Former Labor Affiliations
Name of Beneficiary
Relationship
I hereby certify that the
above is correct.
Signed
The "Obligation" on the reverse side of the card, which the employees
were also asked to sign, is not reproduced as it is immaterial to the issues
in this case
4 The foregoing findings are based on the credited testimony of
Superintendent Sellers The testimony of Local 472 Vice President Carroll
render them usable , although they still were not finished.
On that day Hautau requested and was given space in an
office near one end of the building for the purpose of
conducting his hiring interviews . One of the two union
officials asked Superintendent Sellers what space Local 472
could use and Sellers, as he testified, said that the Union
could use the corner office across the hall from where
Hautau was interviewing . The union officials helped
themselves to a table and chairs and solicited employees to
sign cards after they left Hautau's office, as described more
fully below.
There is a sharp conflict between the testimony of the
employees who were interviewed, hired, and solicited to
join Local 472 on November 10 and 11, and Hautau, the
interviewer , as to whether he referred the applicants, after
interviewing them, to the two union officials. Of the
employees interviewed and hired on November 10, the first
day of interviewing, only one, David Kipp, was called upon
to testify about the events in the office building that
morning Four of the employees hired on November 11 were
called by the General Counsel. However, the testimony of
all five employees was uniformly to the effect that the
interviewer for the Company, whose name they could not
recall, at some point during the interview sent them to talk
to the two union officials.5
Hautau testified that on November 10 he referred the
applicants whom he hired upstairs to Office Manager
Sharr's office for the purpose of making an appointment for
a physical examination. Hautau further testified that on
November 10, he observed one or the other of the union
officials motioning the applicants to come over to their side
of the basement. Regarding November 11, Hautau testified
that he was unable to see where the applicants went after
that he discovered that Hautau was going to conduct the interviewing by
"eavesdropping" and that he determined where to talk to the applicants by
following Hautau around is somewhat inconsistent with Seller 's testimony
above discussed To the extent that Carroll 's testimony is inconsistent with
Sellers' , I do not credit it
5 Thus , David Kipp testified that the interviewer , whom he believed to
be Superintendent Sellers, "told me I had to go across the room to see two
men " Sellers denied making any statement to this effect I believe that
Kipp, who was interviewed on November 10, was mistaken in his
identification of Sellers, and that it was Hautau who interviewed him on
this occasion Of the men interviewed on November 11, one, William
Colwell, testified that the interviewer told me to "go into the room next
door , there are a couple of gentlemen who would like to see you " Another,
Marcus Scutt , stated that the interviewer " told me I would have to go in
the next room , two men wanted to talk to me" This room , Scutt later
explained, was "across the hall, corner office " William Pullen related that
the interviewer said, "there are some Union men in the other room that
would like to talk to you , and he told me to come back after I got done
talking to them " This other room , Pullen stated , was "across the hall "
Arthur Campbell testified that on one occasion , which he placed in early
December, he was told by Office Manager Frank Sharr to go across the
hall to a slender young man who identified himself as a personnel manager
The personnel manager , after asking Campbell questions about the number
of dependents he had and noting the number on the card , told him "to go
down the hall to see a couple of gentlemen to the last office on the
left" When he went into this office, according to Campbell , he found
Carroll and Tissiere there in view of the fact that Personnel Manager
Hautau was a tall slender young man and was engaged in interviewing
applicants for employment on November 11, in an office across the hall
from the corner office in which Carroll and Tissiere were talking to
applicants, and that November 12 was the only day on which Hautau,
Carroll, and Tissiere were so engaged in first floor offices , I conclude that
Campbell was mistaken as to the date of this incident, and find that it
occurred on November II
INTERPACE CORPORATION 135
they left the office which he was occupying. Hautau
emphatically denied that he at any time directed an
employee to go see a union representative.
Vice President Carroll testified that he and Tissiere
managed to speak to the applicants on November 10 and 11,
simply by watching the applicants as they left Hautau and
inviting them to have a discussion at their location nearby.
However, although Local 472 signed up 16 applicants on
November 10 and 11, neither Local 472 nor the Company
called a single one of them to back up either Carroll's
testimony as to the manner in which he achieved the
interviews with the applicants or Hautau's testimony that
he did not refer any applicants to Carroll and Tissiere.
Hautau's conduct in referring the men to the union officials
would be consistent with the Company's action in
providing space in the office for the two officials while
almost simultaneously refusing to give information to the
rival Gypsum Workers representative as to when the
Company was going to start hiring at the Hudson plant.
Hautau's referring of the applicants to the union officials is
also consistent with the Company's subsequent action,
found below, in hastily granting recognition to Local 472
and in promptly entering into a union-security contract
with Local 472. Although one or two of the five applicants
called as witnesses by the General Counsel to testify
concerning their interviews with Hautau were confused
about dates or the identity of the interviewer, they all
appeared to be trying to testify sincerely. They gave
sufficient details to lend an air of plausibility to their
testimony. Under all the circumstances I credit the
testimony of these five witnesses that Hautau referred them
to the two union officials.
The testimony of the various witnesses concerning the
statements made by the union officials in their discussions
with the applicants is not altogether consistent. The
applicant-witnesses called by the General Counsel testified
that Carroll and Tissiere identified themselves as officials of
Local 472 which represented the employees at the
Company's Wharton plant and stated that they were
interested in protecting the seniority, vacation, and other
rights of any Wharton employees who might transfer to the
Hudson plant. Carroll and Tissiere testified that they made
it plain to the applicants that they were not only interested
in protecting tlrights of existing members at the Wharton
plant but also in representing the Hudson employees. The
testimony of Carroll and Tissiere is not necessarily
inconsistent with that of the five applicants and I credit
their testimony as well as that of the applicants.
After making these preliminary remarks, the union
officials questioned the applicants concerning their names,
addresses, birthdates, social security numbers, and benefici-
aries, noted this information on cards, and then handed the
cards to the applicants for their signatures, both on the
bottom of the face of the card and on the middle of the
back of the card.
As found above, the cards read at the top "Application
6 The parties stipulated at the hearing that Holcomb was a supervisor
within the meaning of the Act
T The foregoing findings are based on Bartholomew's uncontradicted
testimony Holcomb was not called as a witness in this proceeding.
8 Although this incident may have occurred before December 9, on
which date, as found below, the Company recognized Local 472 and
for Membership." Below this heading, in significantly
larger bold face type, appears "HEAVY AND GENERAL
CONSTRUCTION LABORERS' UNION, LOCAL 472."
All of the employees talked to by Carroll and Tissiere
signed the cards, with one exception, according to Carroll.
I find, contrary to the position of the General Counsel, no
convincing evidence that the umon officials misrepresented
to the applicants the purpose of signing the cards.
Employee Gene Buie testified that on the morning he
reported for work, November 24, Office Manager Frank
Shan gave him a union membership card to sign. Shan
denied giving union cards to employees for signature and
he also denied having any union cards in his possession at
this time. No other employee testified about such activity
on the part of Sharr. I believe that Buie, testifying almost 11
months after the event, was confused as to the precise
nature of the documents submitted to him by Sharr for
signature on this occasion I credit Sharr.
On Monday, December 8, Robert Bartholomew passed
the company physical examination , reported this fact to
Plant Engineer Holcomb6 in Superintendent Seller's office,
and asked Holcomb for instructions. Holcomb, after
explaining the Company's wage scales to him, told
Bartholomew that "It would be a union shop." Bartholo-
mew agreed to join a umon. Holcomb instructed Bartholo-
mew to report for work the next mormng.7
About the same time,8 according to Arthur Campbell's
uncontradicted testimony, Maintenance Superintendent
Walter Webster told Campbell, one of his subordinates,
that he "would have to join the Union." This was an about
face on Webster's part, for Webster had previously
informed Campbell, in response to a question from
Campbell, that he would not have to join any union.
3. The Company's recognition of Local 472 and
its execution of a contract with Local 472 on
December 9; the presentation of the contract to
the men.
About November 18 Vice President Carroll called Labor
Relations Manager Frawley on the telephone, asserted that
Local 472 had signed up the employees at Hudson, and
asked for recognition of his organization. Frawley's reply,
according to Carroll, was "to notify him by mail of our
demands." By November 18 only two employees had
reported for work at the Hudson plant. A third employee
reported on November 19. Not until November 24 did any
substantial number of employees commence work at the
plant.
On December 2, James R. Zazzali, Local 472's attorney,
wrote a letter to Frawley in which, after asserting that Local
472 represented a majority of the Company's Hudson
employees, he formally requested recognition of Local 472
as the bargaining representative of the Company's Hudson
employees.
On December 9, Carroll and Tissiere met with Frawley
entered into a umon-secunty contract with it, in view of Campbell's
confusion about other dates I make no finding that this incident occurred
before December 9, and am assuming that it occurred after the signing of
the union-security contract In view of my ultimate conclusion herein it is
immaterial whether this incident occurred before or after December 9
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and showed him the 16 original cards which had been
signed up at the Hudson plant on November 10 and 11.
Frawley examined the signatures briefly and returned the
cards to the union officials, who then gave Frawley copies
of these cards. Frawley thereupon orally agreed to
recognize Local 472 as the exclusive bargaining representa-
tive of the Company's Hudson employees.
At the time Frawley recognized Local 472 upon the basis
of the 16 cards handed him, admittedly he was not aware
whether the cards had been signed by persons then
employed at Hudson. According to Frawley, he accepted
the representations of the union officials in this regard. In
fact, about 6 of the 16 cards presented to Frawley at this
time were signed by individuals who were not on the
Company's payroll as of December 9. The remaining 10
cards were signed by employees on the Company's payroll
as of December 9, and they constitute a majority of the
employees on the Company's payroll as of that date.
However, this fact was not ascertained until a check of the
Company's records was made about 3 days later.
After Frawley orally granted Local 472's request for
recognition the parties discussed the terms of a collective-
bargaining contract .9 That same day, December 9, the
Company and Local 472 executed a 3-year collective-
bargaining contract containing union-security and dues-
checkoff provisions. An appendix to the contract sets forth
wage scales for various classifications of employees for the
first 2 years of the contract. The contract appears to call
for lower wage scales for laborers than the Company had
offered the employees at the time they were hired. Thus,
Robert Bartholomew testified that Plant Engineer Hol-
comb stated on December 8 that as of January 1, 1970,
laborers would receive $3.10 per hour. William Pullen gave
similar testimony concerning wage information which he
received from the company interviewer. The wage scale for
laborers under the contract for the year beginning
December 9,1969. was $2.75 per hour.
Local 472 did not consult the employees at Hudson
concerning their desires regarding contract provisions
before entering into the contract with the Company.
On Wednesday, December 10, Carroll and Tissiere met
with the employees in the basement of the office building.
Plant Manager William Packett and Rudy Gottschalk,
another company official, also attended the meeting which
began about 11 a.m. Carroll read the newly signed contract
to the men. Then Carroll, Packett, and Gottschalk
explained various provisions about which questions were
raised. Among the contract provisions discussed was the
union-security clause. Carroll explained that under this
9 The record is almost barren of testimony concerning the details of the
negotiations between Local 472 and the Company preceding the execution
of the contract . The following excerpts from Labor Relations Manager
Frawley's testimony are all that I have been able to find in the record
concerning these negotiations
Q Now , in the course of your discussions with the Union as to
the terms of the contract , did the Union present you with a written set
of demands'?
A No
Q Did the Union give you a demand orally'?
A Yes
Q Did you discuss contract language'?
A Yes
Q Did you change language that the Union presented'?
A Orally
clause all employees would be required to join Local 472
after 30 days employment. One of the employees asked
whether the contract had already been signed. Informed
that it had been, the employee inquired how the local
acquired the right to sign a contract on behalf of the
employees. Carroll replied that the employees had given the
local that right when they signed the union cards.
Before the lunch period Carroll instructed the men to
elect a shop steward. The employees adjourned to the
lunchroom of the plant and discussed the contract. Later
the employees returned to the basement of the office
without electing a steward and informed Carroll that they
regretted the signing of the contract. A discussion of the
objections of the men to the contract then followed. When
Carroll again urged the men to elect a steward the men did
so.
4. The Company insists upon observance of the
contract terms at the meeting on January 12
On January 12, 1970, Plant Manager Packett held a
meeting of the employees in the plant lunchroom after
lunch. During the meeting one of the employees asked if the
Company could delay deducting union dues and initiation
fees from the employees' paycheck in view of the
employees' efforts "to have something done about the
Union with the NLRB." 10 Packett stated that the Company
had checked with their lawyers and had been advised that
the contract was binding on it and that the Company was
obliged to commence deducting dues and initiation fees
from the employees' wages. Packett further stated,
according to employee Bartholomew's credited and
undenied testimony, that any employee failing "to join this
union" would be let go, and that new employees, "they
have to agree to join this Local 472 out of New Jersey or he
could not hire them."
B. The Company's Threats Prior to the Hearing in
the Representation Case
The hearing on the Gypsum Workers petition for
certification was scheduled for April 9. In the latter part of
March, Superintendent Sellers, in the course of a conversa-
tion with employees Francis Masten and Eddie Ferratto
about other matters, stated his strong opposition to a
contract clause entitling employees to bid on vacant jobs in
the plant. Masten's credited and uncontradicted testimony
about this conversation is as follows:
... he [Sellers] said if they ever got a bid clause in
Q Was there, in fact, a give and take on issues within the
contract'?
A Yes
While Frawley gave further testimony concerning "bitter" discussions at
Parsippany, New Jersey, about "the Wharton curtailment" and "possible
agreement at Hudson ," I find that the "bitter [ness] arose out of the
Company's refusal to extend the Wharton contract to Hudson At this
meeting the Company did insist that any contract for Hudson should
provide for "pipe plant" rather than "construction" rates
is The Gypsum Workers filed a petition for certification as the
bargaining representative of the Company's Hudson employees with the
Board 's Regional Office on January 19, 1970 (Case 3-RC-4851) This
petition was dismissed by the Regional Director on April 29, 1970, upon
the grounds that Local 472's contract with the Company constituted a bar
to an election
INTERPACE CORPORATION
this contract or if another union came in and got a bid
clause in the contract, despite the fact that it was a
brand new plant, the company would close the plant up
and move the machinery out and sell the plant because
when union dictates by way of bids who's on what job,
the company no longer has control over the business
and the company wouldn't want that.
On an occasion in April 1970, before the Regional
Director issued his decision in the representation case, a
group of maintenance employees were discussing the
possibility of the Board's issuing a favorable decision; i.e., a
decision that an election should be held in which they
would be able to vote for the union of their choice.
Maintenance Superintendent Walter Webster, upon over-
hearing these remarks, interjected himself into the discus-
sion, as follows, according to the credited and undenied
testimony of Francis Masten:
Walt happened to say how he hoped everything would
go all right up at the hearing because from what he had
heard, from what he had understood, the men were
asking for unreasonable demands if they got another
union in and if they did ask for unreasonable demands,
the company might well shut the plant and close the
door because they didn't have that much money
invested in the plant at that time. Said it wouldn't do
any good to get a new union in and ask for big
demands.
s s
He said if the union asked for demands he understood
they were asking for, or if the men asked for the
demands that he understood they were asking for that
there would be a long strike, and if the strike was too
long then the company would just sell the plant and
close the doors because they didn't have that much
money invested there.
Or as more succinctly put by Arthur Campbell, Webster
stated on this occasion that if the Board should direct an
election, the Company "would hang a for sale sign on the
door and we would all be out of work, period ... .
C. The Company's Discharge of Robert Wanninger
Robert Wanninger started to work for the Company in
the latter part of February or early in March 1970. In his
first day on the job a secretary in the office had a discussion
with him about signing a union card. However, they agreed
that it would be satisfactory if he deferred signing a card
until later on. Nothing further was said to Wanninger about
signing a union card by anyone until over a month later, on
April 24. On this occasion Local 472 Steward Ferratto told
Wanninger that he had to sign a union card or be laid off.
Wanninger told Ferratto that he would not sign a card.
Ferratto did not say anything further at this time.
Later on in the afternoon, Ferratto informed Wanninger
that Superintendent Sellers wanted to see him and Ferratto
accompanied Wanninger to Sellers' office. Ferratto stated
to Sellers that Wanninger did not want to sign a union card.
Sellers asked Wanninger "In other words, you don't want to
work?" Wanninger replied, as he testified, "It's not that I
don't want to work, I don't want to join the damn union."
Sellers told Wanninger that he was "finished" and
137
instructed him to check in his safety gear. On his way to
obtain his safety gear Wanninger again told Sellers that he
did not want to join Local 472. Sellers replied, as
Wanninger further testified, that "this was the union which
was going to be here." Thus, ended Wanninger's employ-
ment with the Company.
D. The Gypsum Workers File an Unfair Labor
Practice Charge With the Board's Regional Office
On June 3, 1970, the Gypsum Workers filed the charge
with the Regional Office which gave rise to the instant
proceeding. In it the Gypsum Workers alleged that the
Company had illegally assisted and supported Local 472 in
violation of Section 8(a)(1), (2),and (3)of the Act. On August
6, the Gypsum Workers filed a first amended charge which
included an allegation concerning the discharge of Robert
Wanninger.
The date of the filing of the original charge in this case is
of significance in connection with the point strongly urged
by both the Company and Local 472 that Section 10(b) of
the Act precludes my consideration of any alleged acts of
company assistance and support to Local 472 occurring
prior to December 3, 1970, when the 6-month period prior
to the issuance of the original charge began. This point is
discussed below.
E. Conclusions Concerning the Respondent's Unfair
Labor Practices in Violation of Section 8(a)(1), (2),
and (3) of the Act
1. Introduction; the contention of the Company
and the Union based on Section 10(b) of the Act
Section 10(b) of the Act provides in pertinent part as
follows:
... no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge .. .
As indicated above both the Company and Local 472
strongly urge that Section 10(b) of the Act precludes the
Board from considering events occurring prior to Decem-
ber 3,1969, when the 6-month period began, in determining
whether the Respondent's recognition of, and execution of
the contract with, Local 472 on December 9 was violative of
Section 8(a)(2) and (1) of the Act. Both parties contend that
the decision of the Supreme Court in Local Lodge 1424 v.
N.L.R.B., 362 U.S. 411, supports their construction of
Section 10(b) of the Act. If the Company and Local 472 are
correct in their interpretation of Section 10(b), then the
allegations of the complaint based on the Company's
recognition of and entering into a union-security contract
with Local 472 on December 9 must be dismissed for the
only other incident of assistance and support to Local 472,
occurring within the 6-month period, is Plant Engineer
Holcomb's statement to Bartholomew on December 8 that
"it would be a union shop." Such a statement standing
alone, in my opinion, by no means justifies the conclusion
that Local 472's majority status, achieved when cards were
signed almost a month earlier, was tainted by company
assistance and support.
On the other hand, the General Counsel, relying on the
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's decision in Mr Wicke, Ltd. Co., 172 NLRB No. 181,
argues that the Board has held that it is proper, in
determining whether a grant of recognition and the
execution of a collective-bargaining contract within the
6-month period are lawful, to consider acts of assistance
and support antedating the 6-month period. In my opinion
the facts of the instant case, summarized below, bring it
squarely within the holding of the Mr. Wicke case. As I read
the Mr. Wicke decision, I am required, in determining
whether the Company's grant of recognition to Local 472
and its execution of a union-security contract with such
organization on December 9 violated Section 8(a)(2) and (1)
of the Act, to consider the Company's conduct prior to
December 3.
2. The Company's violation of Section 8(a)(2) and
(1) of the Act
To summarize, before hiring began at Hudson, Labor
Relations Manager Frawley, in response to an inquiry from
Local 472 Vice President Carroll, indicated that hiring
would begin early in November. However, when the
representative of the rival Gypsum Workers sought such
information from Frawley on November 7, Frawley refused
to give it. When the Local 472 officials arrived on the
morning hiring was to begin, they were permitted in the
office building and a table was made available for their use
near where Personnel Manager Hautau, the company
interviewer, was receiving applicants for employment. On
the second morning during which the Company was
interviewing applicants for employment, at the request of
the Local 472 officials, the Company made an office
available for them to use near where Hautau was
interviewing applicants.
In view of the fact that Frawley refused to give the
Gypsum Workers representative information as to when
the Company was going to commence hiring at Hudson, I
cannot accept the Company's contention that it was
prepared to afford any union representative who appeared
the same assistance that it afforded Local 472. One can well
imagine the confusion which would have resulted had the
Company allowed rival unions to set up recruiting stations
in the office some 20 to 30 feet away from where the
company representative was interviewing applicants for
employment. It is unrealistic, in my opinion, to believe that
the Company would have tolerated any such situation.
The credited testimony establishes that, in addition to
thus making facilities available to the Local 472 officials,
Personnel Manager Hautau, after interviewing applicants,
referred the applicants to the two Local 472 officials, where
they hastily secured the signatures of applicants on
"Application for Membership" cards. All 16 cards relied on
by Local 472 as establishing its majority status were
obtained on November 10 and 11, when the Local 472
representatives from Newark visited Hudson.
Local 472 Vice President Carroll called Labor Relations
Manager Frawley about November 18 and asked for
recognition of Local 472. Although only two employees, or
possibly three at the most, had reported for work at Hudson
at this time, Frawley so far as the record shows did not
question the basis for Carroll's claim of majority status but
rather indicated a readiness to recognize Local 472 by
saying in effect, "Notify us by mail of your demands."
On December 9, after being requested in writing by Local
472 to grant recognition, Frawley met with Carroll and
Tissiere, accepted their representations that Local 472
represented a majority of the Hudson employees, and
agreed to grant Local 472 exclusive recognition. Such
recognition was granted by Frawley after briefly examining
the signatures on the cards, without making any check of
the Company's records, and without even knowing whether
the cards presented had been signed by employees of
Hudson. It later developed that 6 of the 16 cards presented
had been signed by persons who did not work for the
Company. See International Ladies Garment Workers Union
[Bernhard-Altmann], v. N.L.R.B, 366 U.S. 731, 739-740.
That same day after very brief negotiations the Company
and Local 472 entered into a lengthy contract containing
union-security and dues-checkoff provisions, which effec-
tively stifled rival union activity for the 3-year term of the
contract The contract apparently did not provide as
generous a wage scale for laborers as the Company had
previously offered to the men themselves.
Upon all of the facts of the case, I conclude that the
Company's acts of assistance and support of Local 472 in
the pre-10(b) period precluded the employees from freely
choosing Local 472 as their bargaining representative, and
that the Company's recognition of Local 472 as the
exclusive bargaining representative of the Hudson employ-
ees and its execution of a collective-bargaining contract
with it on December 9 were therefore unlawful and
constituted illegal support of Local 472 in violation of
Section 8(a)(2) and (1) of the Act. Mr Wicke Ltd. Co., 174
NLRB No. 181, Continental Distilling Sales Company, 145
NLRB 820.
I would reach this conclusion even if, contrary to my
finding herein, Personnel Manager Hautau had not
referred applicants for employment to Local 472 officials
Carroll and Tissiere, for in my opinion the Company's
entire course of conduct-the Company's aid to Carroll
and Tissiere on November 10 and 11, its failure to give the
Gypsum Workers equal access to the men it was hiring, its
prompt recognition of Local 472, and its negotiation of a
collective-bargaining contract containing union-security
and dues-checkoff provisions immediately thereafter
-warrants the conclusion that the Company was
attempting in various ways to keep the Gypsum Workers
out of the Hudson plant and to foist on the Hudson
employees its choice of a labor organization. Such conduct
cannot be reconciled with the Company's obligations under
Section 8(a)(2) and (1) of the Act. The contract so executed
is invalid and cannot be upheld.
The Company's enforcement thereafter of the
union-security and dues-checkoff provisions of the
contract further violated Section 8(a)(2) and (1) of the Act.
INTERPACE CORPORATION
As found above, Maintenance Superintendent Webster told
Arthur Campbell after December 9 that he would have to
join the Union. And Plant Manager Packett announced at
the January 12 meeting of the employees that employees
failing to join Local 472 would be discharged. Later in
January, the Company commenced deducting initiation
fees and dues from the employees' wages pursuant to the
dues-checkoff provision of the contract.ii By enforcing the
union-security and dues-checkoff provisions of the
contract the Company forced the employees into Local 472
and compelled their financial support of that organization,
thereby rendering further substantial support and assist-
ance to Local 472, in violation of Section 8(a)(2) and (1) of
the Act.
3. The Company' s violations of Section 8(a)(3)
and (1) of the Act
The Company's inclusion in the contract with Local 472
of the union-security provision also violated Section 8(a)(3)
and (1) of the Act in view of the fact that Local 472 was not
the freely chosen representative of the employees as
required by the proviso to Section 8(a)(3) of the Act.
The discharge of Robert Wanninger on April 24 pursuant
to the union-security provision of the invalid contract
constituted a further violation of Section 8(a)(3) and (1) of
the Act.
4. The Company's independent violations of
Section 8(a)(1) of the Act
I discuss first the threat of Maintenance Supervisor
Webster that if an election were directed, and if another
union won, and such a union made unreasonable demands
and a long strike ensued, the Company would sell the plant
because it did not have much money invested at Hudson.
The Company contends that this merely constitutes a
permissible statement that unreasonable demands might
well lead to resistance by the Company. In my opinion
Webster's statement to the three employees was calculated
to link a rejection of Local 472 and the selection of some
other union with the closing of the plant and loss of
employment. This is the message which Campbell received,
as his testimony clearly discloses.
There was no occasion for Webster to volunteer this
statement on this occasion. The decision had not yet been
issued in the pending representation case and consequently
it could not then be definitely known that an election was to
be held. (In fact, the Regional Director ultimately decided
that no election should be held.) Even more speculative was
Webster's intimation that some other unidentified union
would make unreasonable demands and engage in a long
strike in support thereof. In my opinion Webster conjured
up this highly speculative chain of events in order to have
an excuse for implanting in the employees' minds the idea
that a change in union representation at Hudson might
have serious consequences for the employees there.
Webster's deliberate effort to convey to his hearers that a
11 These dues and initiation fees were checked off pursuant to the
authorizations included on the membership application cards which the
employees had originally signed on November 10 and 11, an invalid form
of authorization when executed under the circumstances of this case, as the
139
rejection of Local 472 and the selection of some other union
would be detrimental to the employees, in my opinion,
exceeded permissible limits . See N.L.R B. v. Gissel Packing
Co., 395 U.S. 575, 618; Wausau Steel Corp., 160 NLRB 635,
640, enfd. in this respect 377 F.2d 369, 372 (C.A. 7).
Similarly coercive was Sellers' threat to Mason and
Ferratto shortly before the hearing in the representation
case that if another union came in and demanded a
contract clause entitling employees to bid on vacant
positions, the Company would close the plant. Sellers was
aware that the Company had a 3-year contract with Local
472 which contained no such bid clause. In my opinion
Sellers seized upon this highly remote contingency as an
excuse for attempting to get across to Masten and Ferratto
that they could possibly suffer from any change in
representation at the Hudson plant. Such employer
pressures on employees is not permitted by the Act.
The Company's contention that Webster's and Sellers'
threats should be disregarded as de minimis overlooks the
fact that such threats were part and parcel of the
Company's entire course of conduct in this case which is
aimed at imposing its choice of bargaining representative
on the Hudson employees and entrenching such organiza-
tion in its representative position at the plant. This
contention is rejected.
CONCLUSIONS OF LAW
1. By recognizing and entering into a
collective-bargaining contract with Local 472 on December
9, 1969, after having assisted and supported Local 472 in
signing up a majority of the employees at its Hudson, New
York, plant, by agreeing to union-security and
dues-checkoff provisions in said contract, and by enforcing
said contract, the Respondent has assisted and supported
Local 472 in violation of Section 8(a)(2) and (1) of the Act.
2. By entering into a union-security contract with Local
472 which was not the freely chosen representative of the
employees at its Hudson, New York, plant, and by
discharging Robert Wanninger pursuant to said
union-security contract, the Respondent has encouraged
membership in Local 472 by discrimination in regard to
hire, tenure, and terms and conditions of employment, in
violation of Section 8(a)(3) and (1) of the Act.
3. By informing an employee at the time he was hired
on December 8, 1969, that "it would be a union shop," and
by making thinly-veiled threats to employees in March and
April 1970 that it would close or sell the Hudson plant if
they chose a union other than Local 472 to represent them,
the Respondent has engaged in interference, restraint, and
coercion in violation of Section 8(a)(1) of the Act.
4. 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 Company has engaged in unfair
labor practices, my recommended order will direct that the
Board has held Stafford's Restaurant, Inc, 182 NLRB No 63, and
International Union of District 50, United Mine Workers of America, et a!
(Ruberoid Company), 173 NLRB No 20.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
I have found that the Company assisted and supported
Local 472 in obtaining the bargaining authorizations upon
which Local 472 based its claim of majority status, and that
in recognizing and entering into a 3-year
collective-bargaining contract with Local 472, containing
union-security and dues-checkoff provisions, despite the
coerced nature of Local 472's majority status, the Company
has violated Section 8(a)(1), (2), and (3) of the Act. To undo
the effect of such illegal conduct, my recommended order
will direct that the Company withdraw and withhold
recognition from Local 472 unless and until Local 472 is
certified by the Board and that in the meantime the
Company shall cease giving effect to the illegal
collective-bargaining contract dated December 9, 1969,
containing union-security and dues-checkoff provisions.
Provision shall be made, however, to safeguard benefits, if
any, which the employees may have received under the
contract.
The General Counsel urges that reimbursement of dues
and initiation fees deducted from the employees' wages
pursuant to the illegal collective-bargaining contract is an
appropriate remedy in this case in view of the facts (1) that
in the circumstances of this case none of the employees can
be deemed to have voluntarily chosen Local 472 as their
bargaining representative or to have freely executed
checkoff authorizations, and (2) that these moneys were
withheld pursuant to the terms of the illegal contract with
Local 472. I agree that a general dues reimbursement order
is an appropriate remedy in this case and my recommended
order will so provide.
Having found that the Company discharged Robert
Wanninger because of his refusal to join Local 472, thereby
violating Section 8(a)(3) and (1) of the Act, my recommend-
ed order will provide that the Company offer him
immediate and full reinstatement to his former job or, if this
job no longer exists, to a substantially equivalent fob,
without prejudice to his seniority and other rights and
privileges. My recommended order will further direct that
the Company make Wanninger whole for his losses
resulting from the Company's discrimination against him
by payment to him of the sum of money he would have
earned from the date of his discharge until the date on
which the Company offers him reinstatement, less his net
interim earnings. Backpay shall be computed on a quarterly
basis and shall include interest at 6 percent per annum, as
provided F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Interpace Corporation, Hudson, New
York, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Giving unlawful assistance or support to Local 472,
12 In the event no exceptions are filed to this recommended Order as
provided by Sec 10246 of the Rules and Regulations of the National
Labor Relations Board, the findings, conclusions and recommended Order
Laborers International Union of North America,
AFL-CIO, by recognizing or entering into a contract with
it as an exclusive bargaining agent at a time when it does
not represent a freely chosen majority of its employees in an
appropriate unit.
(b) Encouraging membership in Local 472 by discharging
or otherwise discriminating against any employee because
of his failure to join Local 472, or by entering into or
enforcing any union-security agreement made in violation
of the provisions of Section 8(a)(3) of the Act.
(c) Recognizing Local 472, or any successor thereto, as
the representative of any of its employees for the purposes
of collective-bargaining unless and until said labor
organization shall have been certified by the National
Labor Relations Board as the exclusive bargaining
representative of such employees.
(d) Giving effect to, performing, or in any way enforcing
its contract entered into on December 9, 1969, or any
modifications, extensions, or renewals thereof, or any other
contract, agreement, arrangement, or understanding en-
tered into with Local 472, or any successor, relating to
grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless
and until said labor organization shall have been certified
by the Board as the exclusive representative of its
employees; provided, however, that nothing in this
Decision shall require the Respondent to vary or abandon
any wages, hours, seniority, or other substantive feature of
its relations with its employees which the Company has
established in the performance of this contract, or to
prejudice the assertion by employees of any rights they may
have thereunder.
(e) Threatening employees with loss of employment or
other economic reprisals because of their union activities or
sympathies.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Reimburse each of its former and present employees
for any and all initiation fees , dues , assessments , or other
moneys exacted from them since December 9, 1969, under
its unlawful collective-bargaining contract with Local 472,
together with interest at the rate of 6 percent per annum.
(b) Withdraw and withhold all recognition from Local
472, or any successor labor organization, as the representa-
tive of its employees for the purposes of collective
bargaining, unless and until said labor organization shall
have been certified by the National Labor Relations Board
as the exclusive representative of such employees.
(c) Offer Robert Wanninger immediate and full reinstate-
ment to his former job or, if this job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of pay suffered by reason of his discharge in the
manner set forth in the section of this Decision entitled
"The Remedy."
herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes.
INTERFACE CORPORATION
(d) Notify Robert Wanninger if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application after discharge from the
Armed Forces in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended.
(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, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended order.
(f) Post at its plant at Hudson, New York, copies of the
attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(g) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.14
13 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify said Regional Director , in writing, within 20 days from the date of
this Order, what steps the Company has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT give unlawful assistance or support to
Local 472, Laborers International Union of North
America, AFL-CIO, or any other labor organization,
by recognizing or entering into a contract with it as
exclusive bargaining agent at a time when it does not
represent a freely chosen majority of the employees in
an appropriate unit.
WE WILL NOT encourage membership in LocaP %2. by
discharging any employee because of his failure loin
Local 472, or by entering into or enforcing union-
security agreement with said labor organization made in
violation of the provisions of Section 8(a)(3) of the Act.
141
WE WILL NOT enforce or give effect to our collective-
bargaining contract with Local 472, dated December 9,
1969, or to any extension, renewal, modification, or
supplement thereof, or to any superseding agreement,
or give affect to any dues-checkoff authorization
heretofore executed by our employees in favor of Local
472.
WE WILL NOT threaten employees with loss of
employment or other economic reprisals because of
their union activities or sympathies.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from
Local 472 as the collective-bargaining representative of
our employees and WE WILL NOT deal with it
concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms and
conditions of employment, unless and until such labor
organization has been certified by the Board, following
a Board-conducted election, as the exclusive bargaining
agent of our employees in an appropriate unit.
WE WILL reimburse all present and former employees
for any and all initiation fees, dues, assessments, or
other moneys exacted from them under the collective-
bargaining contract with Local 472, dated December 9,
1969, together with interest thereon at 6 percent per
annum.
WE WILL offer immediate reinstatement to Robert
Wanninger and will pay him for the wages he lost as a
result of his discharge.
All employees are free to become, remain, or refrain from
becoming or remaining members of Local 472 or any other
labor organization.
INTERFACE CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Seventh Floor Drislane Building , 60 Chapel Street, Albany,
New York 12207, Telephone 518-472-2215.