I.T.T. Semi-Conductors, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 716 (N.L.R.B. 1967)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I.T.T. Semi-Conductors , Inc. and Inter-
national Brotherhood of Electrical
Workers, AFL-CIO
I.T.T. Semi-Conductors , Inc. and Inter-
national Brotherhood of Electrical
Workers, AFL-CIO, Petitioner. Cases
12-CA-3044, 12-CA-3089, 12-CA-3225, and
12-RC-1975.
June 21,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 17, 1966, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the 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. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices.
Thereafter, the General Counsel, Charging Party,
and Respondent filed exceptions to the Decision and
supporting briefs. The Respondent subsequently
filed an answering brief to the exceptions and briefs
of the General Counsel and Charging Party.
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 only to the extent consistent
herewith.'
i We do not adopt any of the Trial Examiner's gratuitous
observations contained in the paragraphs preceding his Findings
of Fact and Conclusions of Law
2 One of the Respondent's supervisors, Rogers, who threatened
that the plant would move out of State if the Union won the
election, and who was in charge of three departments, was
characterized by the Trial Examiner as a "minor supervisor "
Insofar as such characterization may have been intended to
minimize the unfair labor practices found, we do not adopt it
3 Although the Respondent contends that the appropriate unit
was an expanding one and that the employees eligible to vote in
the election did not constitute a representative complement, its
claim remains unsupported by the evidence.
" Contrary to the Trial Examiner, we would also find valid the
authonzation card of Robert A. Hall in that the record clearly
shows that he was not told that the purpose of the card was only
for an election (Although there appears some ambiguity, we agree
with Respondent that in context the reference to card signer
"Hall" in the Trial Examiner's Decision was to Robert A Hall and
not Alonza Hall, the janitor) We also find valid the card of janitor
Hall and the four other cards solicited by him Hall was hired as
We agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) of the Act by its
threats to move to Massachusetts if the Union won
the election; by its persistent inquiry of employees
what they thought of the Union or why they should
want it; by its threat of instant discharge for the
posting of prounion literature, particularly as it was
clear that the posting of antiunion literature was
permitted; and by its questioning of employees
concerning the reason for wearing union buttons or
insignia.2
We further agree with the Trial Examiner that the
no-solicitation and no-distribution rules posted in the
plant from October 9, 1964, were promulgated at a
time calculated to interfere with employees' rights
under Section 7. The Trial Examiner also correctly
found that the unlawful rules were not enforced
against antiunion adherents in the plant and, in fact,
the Company financed-by furnishing time,
materials, and space-the building of an electrical
apparatus by technicians which buzzed or honked
every 10 minutes, calling attention to a series of
electric lights that blinked "Vote No." In addition,
the Trial Examiner found, and we agree, that the
Respondent granted a wage increase at a time
caluclated to interfere with the right of employees to
choose a representative, no reasonable explanation
having been offered for the increase at that
particular time.
We do not, for the following reasons, agree with
the Trial Examiner that the Respondent did not
violate Section 8(a)(5) by refusing to bargain with the
Union. The unit found appropriate for bargaining by
the Trial Examiner comprised 223 employees.3 The
Trial Examiner also found that of the 122
authorization cards submitted by the Union in
support of its majority status claim, 115 were valid,
thus providing it with a majority.' He intimated,
though, that the Union's majority status might not be
viable because of the solicitation of some cards upon
the representation by the Union that it then
possessed a majority. Thus, the Trial Examiner
observed "on the basis of recent Board declarations
lead custodian at $1 25 an hour and although his hourly rate was
subsequently increased to $1 75, he was making only 15 cents
more per hour than the next highest paid custodian. Hall did not
have authority to hire or fire employees or even to have his
recommendations earned out, he did not attend supervisory
meetings; and except for hourly rate, worked under the same
employment conditions as the other janitors and performed the
same work as they He was responsible for cleaning the
president's office, evidence certainly not of supervisory authority.
He did instruct other custodians where work was required to be
done, but so did one other custodian on the night shift
Essentially, Hall transmitted orders of a routine nature regarding
locations designated to be cleaned and was not permitted to
exercise his independent judgment. At most, he was conduit for
the transmission of orders to the custodial staff Thus, we find the
cards of Hall and the four other custodians valid
We find merit in Respondent's exception concerning Gerrye
Kinsey's card, the evidence revealing that she was told it was
"merely" for an election Thus, we find that the Union had in its
possession 120 valid authorizations at the critical time and that
this number constituted a majority
165 NLRB No. 98
SEMI -CONDUCTORS, INC. 717
[citing cases] that a false representation as of
existing majority made by one who solicits
signatures vitiates the cards without proof of
reliance on such representation." Apart from the
fact that such a postulate wrongly reflects the
present state of the law, we are not persuaded that
the Union did not, at all times when such
representations were made, possess a majority of
authorization cards.
In any event, even if at the time of every such
solicitation, the Union did not represent a majority,
our cases uniformly hold that a card so obtained can
be rendered invalid only upon proof that it would not
have been subscribed but for the erroneous
representation or that the misrepresentation
operated coercively by putting signers in fear of
majority reprisal. Home Pride Provision, Inc., 161
NLRB 634; N.L.R.B. v. Amalgamated Clothing
Workers of America (Sagamore Shirt Company), 365
F.2d 898 (C.A.D.C.), enfg. 153 NLRB 309; Merrill
Engineering Laboratories, 158 NLRB 1113. Such
proof as was adduced regarding either of these
grounds was insufficient to establish, on the record
made before the Trial Examiner, that card signers
relied on or were coerced by the representations [if
they were made, and if they were wrong] by the
Union.
Finding that the Union possessed a majority at the
critical times herein, and holding meritorious certain
of the Union's objections to the election, the Trial
Examiner nevertheless refused to order the usual
bargaining remedy because, as he held, "on the bare
card majority, the relatively little interference, and
the election tally, we cannot find loss of actual
majority and attribute such loss to the unfair labor
practices found...." We find no support either in
our own decisions or in the decisions of the courts of
appeals5 for this reasoning and reject it as reflecting
an erroneous view of the law.
We view the 8(a)(1) violations found to have been
committed by Respondent throughout the period of
the Union's organizational activity to be of a serious,
substantial, and pervasive nature. The threat to
close the plant should the Union be designated as
bargaining representative, the furnishing of material
and space on company time for the fabrication and
dissemination of antiunion propaganda, the granting
of a wage increase at a time calculated to interfere
with the self-organizational rights of employees, and
the disparate enforcement of a no-solicitation rule
are each, in our judgment, by themselves sufficient
to establish that the Respondent had as its purpose
the rejection of the collective-bargaining principle or
the desire to gain time within which to undermine
the Union and dissipate its majority. The
interrogation present in the case was, by comparison
with the other violations found, only a small part of
the overall picture pointing to the bad faith of the
Respondent. Thus, the Trial Examiner's reliance on
Hammond & Irving, Incorporated, 154 NLRB 1071,
is misplaced, for there we simply held that a minimal
amount of interrogation, by itself, did not establish
bad faith. That case is in no way applicable to the
instant facts or the 8(a)(1) violations found. For these
reasons we find that Respondent violated Section
8(a)(5) by refusing to recognize the Union as the
representative of its employees for collective-
bargaining purposes."
Lastly, we find, that by laying off its janitors on
April 16, 1965, and by subcontracting the
maintenance operations performed by them without
bargaining with the majority representative of the
employees on the matter of contracting out the work,
Respondent further violated Section 8(a)(5) of the
Act.7 Although other employees were laid off 1
month earlier, there is no proof that the work they
had been doing is now being performed outside the
bargaining unit. For that reason, we find no violation
in the termination of eight maintenance helpers and
painters.
THE REMEDY
We are in agreement with the Trial Examiner that
the Union's objections to the election held on
December 17, 1964, are meritorious and that the
election must be set aside. As we find the
Respondent in substantial violation of Section
8(a)(1), and as we find further that the Respondent
refused to bargain with the Union in violation of
Section 8(a)(5), we shall order Respondent to cease
and desist from the violations found and to bargain
with the designated employees' representative. We
shall also require the reinstatement with backpay
and interest of the terminated janitors" and a
resumption of the custodial services contracted out
to another firm.9
CONCLUSIONS OF LAW
1. I.T.T. Semi-Conductors, Inc. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. On December 6, 1964, the Union was the
exclusive representative for collective-bargaining
S See for example , Joy Silk Mills, Inc., 85 NLRB 1263, enfd
185 F 2d 732 (C.A D C.), cert denied 341 U.S 914; Bernel Foam
Products Co., Inc, 146 NLRB 1277, Irving Air Chute Company,
Inc , 149 NLRB 627, enfd 350 F 2d 176 (C A 2)
9 Ibid
7 Fibreboard Paper Products Corp V N L.R B, 379 U S. 203;
Consolidated Rendering Company, d/b/a Burlington Rendering
Company, 161 NLRB 1; The Colson Corporation , 148 NLRB 827,
enfd 347 F 2d 128 (C A. 8)
9 Loss of earnings shall be computed in the manner set forth in
F W. Woolworth Company, 90 NLRB 289, with interest thereon
in the manner set forth in Isis Plumbing & Heating Co , 138
NLRB 716
9 Fibreboard Paper Products Corp , supra.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of Respondent's employees in the unit
described as follows:
All production and maintenance employees,
including quality control inspectors at the
Company's West Palm Beach facilities; but
excluding all office clerical employees,
technical employees, including quality control
technicians, temporary employees, professional
employees, guards, and supervisors as defined
in the Act,
which was and is a unit appropriate for the purposes
of collective bargaining within the meaning of
Section 9(b) of the Act.
4. By coercively interrogating employees; by
threatening to discharge employees supporting the
Union, and, if its employees should designate the
Union as their collective-bargaining representative,
to terminate its operations; by curtailing the posting
of prounion propaganda while permitting and
assisting in the dissemination of antiunion
propaganda; by providing material, time, and space
for the preparation of antiunion literature and
devices; and by conferring benefits in granting a
wage increase on October 6, 1964, during the period
of union organization, Respondent has interfered
with, restrained, and coerced its employees in the
exercise of rights guaranteed them in Section 7 of
the Act, and has thereby engaged in and is engaging
in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. By refusing on December 6, 1965, and
thereafter, to bargain collectively with the aforesaid
labor organization, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By unilaterally discontinuing its custodial
operations without first bargaining collectively with
the Union as the exclusive representative of the
employees in the aforesaid appropriate unit, and by
discharging all the employees engaged in the
custodial operation on April 16, 1965, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not violate Section 8(a)(3)
of the Act by failing to promote the employee named
in the complaint, nor Section 8(a)(5) by the
termination of its maintenance helpers and painters.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
I.T.T. Semi-Conductors, Inc., West Palm Beach,
Florida, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees;
threatening to discharge employees supporting the
International Brotherhood of Electrical Workers,
AFL-CIO, and, to terminate its operations if the
employees should designate such Union as their
collective -bargaining representative; curtailing the
posting of prounion propaganda while permitting
and assisting in the dissemination of antiunion
propaganda ; providing material , time, and space for
the preparation of antiunion literature and devices;
and conferring benefits for the purpose of interfering
in the self-organizational rights of its employees.
(b) Refusing to bargain collectively with the
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit:
All production and maintenance employees,
including quality control inspectors at the
Company's West Palm Beach facilities; but
excluding all office clerical employees,
technical employees , including quality control
technicians , temporary employees, professional
employees , guards, and supervisors as defined
in the Act,
with respect to wages, hours, and other terms and
conditions of employment ; and from unilaterally
subcontracting unit work without first bargaining
with the exclusive bargaining representative of its
employees.
(c) In any other manner interfering with,
restraining , or coercing employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist the above-named
Union or any other labor organization , to bargain
collectively through representatives of their own
choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , and to refrain from any and
all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request , bargain collectively with
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the unit found appropriate
with respect to wages, hours, and other terms and
conditions of employment , including the
subcontracting of unit work.
(b) Reinstate the maintenance operation
previously performed by the following employees
represented by the above-named Union : Alonza
Hall, Deloris Hooks, Cleveland Dix, Robert Nickey,
Geddess Jenkins, and Isaac Rolle, and offer to these
employees immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges , and make them whole for any loss of pay
suffered by them in the manner set forth in the
above section entitled "The Remedy."
SEMI -CONDUCTORS, INC. 719
(c) Notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary or useful to determine the
amount of backpay due and the rights of
reinstatement under the terms of this Order.
(e) Post at its plant in West Palm Beach, Florida,
copies of the attached notice marked "Appendix."10
Copies of said notice, to be furnished by the
Regional Director for Region 12, after being duly
signed by the Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 12, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
I t is also ordered that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
IT IS FURTHER ORDERED that the election held on
December 17, 1964, in Case 12-RC-1975, be, and it
hereby is, set aside, and that said case be, and it
hereby is, dismissed, and that all prior proceedings
held thereunder be, and they hereby are, vacated.
10 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
WE WILL NOT curtail the posting of
propaganda favoring a labor organization while
at the same time permitting and assisting in the
dissemination of propaganda against such labor
organization.
WE WILL NOT provide material , time, and
space for the preparation of antiunion literature
and devices.
WE WILL NOT confer benefits on our
employees for the purpose of interfering in their
self-organizational rights.
WE WILL NOT in any other manner interfere,
restrain , or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations , to join or assist the
above-named Union or any other labor
organization , to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, and to refrain -from any and all
such activities.
WE WILL bargain collectively with the
International Brotherhood of Electrical
Workers, AFL-CIO , as the exclusive
representative of our employees in the unit
found appropriate , with respect to wages, hours,
and other terms and conditions of employment.
WE WILL reinstate the maintenance operation
previously performed by the following
employees , all of whom are represented .by the
above-named Union : Alonza Hall , Deloris
Hooks, Cleveland Dix , Robert Nickey, Geddess
Jenkins, and Isaac Rolle, offer these employees
immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges , and make them whole for
any loss of pay they may have suffered.
All of our employees are free to become , remain,
or to refrain from becoming or remaining, members
of International Brotherhood of Electrical Workers,
AFL-CIO, or any other labor organization.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended , we hereby notify you that:
WE WILL NOT coercively interrogate our
employees regarding any affiliation with any
labor organization that they might have.
WE WILL NOT threaten to discharge
employees supporting the International
Brotherhood of Electrical Workers, AFL-CIO,
nor to terminate our operations should
employees designate the above -named labor
organization or any other labor organization as
their collective -bargaining representative.
I.T.T. SEMI-
CONDUCTORS, INC.
Dated By
(Representative ) (Title)
Note: We will notify the above-named employees,
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
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.
720 DECISIONS OF NATIONAL
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Room 796 Federal Office Building, 500 Zack
Street, Tampa, Florida 33602, Telephone 228-7711.
TRIAL EXAMINER'S DECISION, AND REPORT AND
RECOMMENDATIONS ON OBJECTIONS TO
ELECTION
BUCHANAN, Trial Examiner: The complaint herein
(issued June 24, 1965; charges filed October 7,
November 3, and December 9, 16, and 24, 1964, and
February 15, April 20, May 5, and June 24, 1965) alleges
that the Company has violated Section 8(a)(3) of the
National Labor Relations Act, as amended, 73 Stat. 519,
by failing and refusing because of his protected con-
certed activities, to grant a wage increase to Guy H.
Perry; and Section 8(a)(1) and (5) of the Act by said alleged
acts and by interrogating and threatening employees in
connection with union activities and sympathies,
requesting an employee to persuade others to vote against
the Union, by promulgating and discriminatorily enforcing
a no-solicitation and no-distribution rule, by granting a
wage increase to induce employees to vote against the
Union, by refusing to recognize or bargain with the Union
since on or about December 6, 1964, and by unilaterally
eliminating several job classifications and discharging 14
named employees. The answer places in issue the status of
alleged supervisors and denies the allegations of violation,
including appropriate unit and card majority.
Consolidated with the hearing on the above issues was a
hearing with respect to issues raised by certain objections
by the Union to conduct affecting the results of an election
held among employees on December 17,1964.
A hearing was held before me at West Palm Beach,
Florida, from July 20 through 28, August 24 through 27,
and October 19 through 28, all dates inclusive, and on
November 4, 1965. The General Counsel argued orally at
the close of the hearing. Briefs have been filed by the
General Counsel, the Union, and the Company, the time to
do so having been extended; and also a supplemental brief
by the Company, received on April 21, 1966, and
responses thereto by the General Counsel and the Union,
received on May 5, 1966.
Several extrinsic but official matters have caused delay
in issuance of this Decision, as I notified the parties with
regret several months ago. This delay was a protraction of
already existing delay at the time of commencement of the
hearing which, although there had been neither bargaining
nor recognition, began 7-1/2 months after the Board-
conducted election. A fair expression of the employees'
desires as to representation already long delayed at the
time of the hearing, there appeared to be no reason for
further suspending an election until this case was disposed
of, especially in view of the circumstances and the
prospect of delay here, not to mention the time and
expense of the hearing itself.
An agreement to withdraw the refusal-to-bargain
allegation and to hold another election would have avoided
consideration and determination of the questions whether
I Kolptn Bros Co., Inc, 149 NLRB 1378, 1380, where unlike
the instant case , the election was not set aside
2 This will be referred to in connection with the alleged
LABOR RELATIONS BOARD
the Union had a valid majority of cards and whether "the
election, which the Union lost, truly expressed the
employees' desires as to representation."' Even aside
from the delay in issuance of this Decision, due to
circumstances beyond our control, industrial peace and
the rights of the employees would have been better served
by early agreement for another election, whatever the
disposition of the other issues in the case by settlement or
otherwise, as several times suggested. But whatever the
reasons and motives, the invitations for agreement to hold
another election at a date to be mutually agreed upon were
rejected. The net result has been that, with long delay
already experienced and indication of further delay, the
employees have been denied the opportunity to express
freely and effectuate their own desires concerning
representation, after the effect of any unfair labor practice
had been dissipated. If certain conditions have been
beyond our control, the interests of the employees could
nevertheless have been better served. Nor should the
expense and time lost in actual hearing be overlooked.
However interesting various questions may be when
pursued as technical problems, the practical issues here
could be readily disposed of with full recognition of the
rights of all concerned and without magnification into a
cause celebre.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a
Delaware corporation and the nature and extent of its
business are admitted ; I find and conclude accordingly
and also that it is engaged in commerce within the
meaning of the Act; and that the Union is a labor
organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Independent Violation of Section 8(a)(1)
Perry testified that in the latter part of July 1964
Maintenance Supervisor Robert Seuberling asked him
why he had gotten involved and what he expected to gain
from the Union; and told him that, had he not gotten
involved with the Union, he'd have received a wage
increase. Seuberling denied all of this. Perry first
distributed union cards on July 6. In connection with the
increase2 allegedly mentioned by Seuberling, Perry
testified that Coleman, director of plant engineering, had
promised when he was hired early in March that he would
receive an increase from $3.15 to $3.50 per hour within 60
days to 6 months, depending on how the electrician crew
was filled. Not only did Coleman deny making such a
promise, but although Perry knew, as he allegedly told
Seuberling, that Howard Wilburn had been hired at $3.50,
he did not, while speaking with Seuberling 4-1/2 months
after the alleged promise to him, ask for the increase
despite the fact that he claimed that he was assigning jobs
discrimination , Infra, and the circumstances surrounding
payment of the $3 50 rate
SEMI-CONDUCTORS, INC. 721
to Wilburn and was his "unofficial leadman" (according to
Perry, Coleman had told him about 2 weeks earlier that
Wilburn was to be his supervisor); and in a conversation
with Coleman on September 23 (more than 6 months after
he was hired) he spoke to Coleman about others being put
in for a raise while he was not and told him that he "felt
entitled to a raise"; nothing here about Coleman's alleged
promise.
Aside from the foregoing, the basis for my credibility
findings with respect to Perry's testimony lies in the
testimony concerning the alleged discrimination against
him, infra. I credit Seuberling's denial, and also
Coleman's, that he had told Perry that his union activities,
which are not questioned, indicated that he did not have
the Company's interest at heart; that he had thereby
messed up a golden opportunity for a bright future; and
that he would have received an increase had he not gotten
involved with the Union.
Employee Jones testified that in the second half of
October she joined in a conversation among her immediate
supervisor, Rogers, and three or four other employees;
that Rogers asked whether she thought the Union was
coming in and, when she answered in the affirmative,
asked her why, and that she replied, "Because of job
security and wages." Whether such questions concerning
an employee's expectations and belief are violative in this
context (with few instances of interference found, this is
the only interrogation alleged against Rogers), more
serious would be Rogers' alleged statement that, if the
Union got in, the plant would probably have to close down
and return to Lawrence, Massachusetts; that mills had
closed down in Lawrence and "the same thing would
happen here." Jones modified this by adding that Rogers'
statement about the plant closing was in reply to an
employee's question, what would happen if the Union
came in, and that Rogers had further said that the
Company could not compete with the wages paid by two
other local companies.
Denying the "probably" aspect, Rogers testified that
during a conversation which he had instituted with
employees and in response to one employee's question as
Jones had described it, he stated that "in [his] opinion the
company could possibly move its operations to Lawrence
in order to better compete in the semi-conductor
business." True, anything is possible. But whether Rogers
used "probably" or "possibly," such direct and automatic
connection of unionization with plant removal constitutes
a threat and interference with organizational activities
even if stated to be the speaker's "opinion." I would add3
that, responsive to a question and made by a minor
supervisor, this violation is minor. What I have called
"automatic" appeared less so as Rogers explained to the
employees that because of union demands other
businesses had left Lawrence and, with that experience,
the people there "didn't want to have anything to do with
unions at all after this company moved in."
Jones testified further that early in November, in
response to her question how everything was going,
Rogers declared that things were slow; he wasn't happy;
"we probably will have to go back to Massachusetts"; "the
whole plant might have to." Aside from Rogers' denials, I
find no violation here. Jones thought that Green,
production foreman, was present during the latter
conversation. Green testified that he did not hear Rogers'
alleged remarks. By contrast, except for one who testified
concerning other matters, none of the five employees
whom Jones placed at the earlier conversation and all of
whom signed cards and presumably supported the Union
was called to corroborate Jones.
Employee Little testified that on Friday, November 13,
when she asked Supervisor Martel whether there would be
work for the following day, he replied, "No there will be no
more overtime. You can thank the Union for that." About a
week later, after some interrogation not alleged4 to be
violative, Martel allegedly told Little that if the Union got
in the plant could move to Lawrence, and that he was
going to get tough about the Union. After reference to a
third conversation, which Little connected with some
hearsay information and in which Martel allegedly
undertook to state the Company's concern with respect to
Lawrence as well as West Palm Beach, Little told us of a
fourth early in December (a variance in dates was noted) in
which in response to her question how he knew that the
plant would close if the Union got in, Martel cited his long
experience with and knowledge of the Company. Whether
or not there was a violative threat in the prior statement by
Martel about the plant closing if the Union got in, I would
find none in this last, which depends on the earlier and
was a prompted repetition: I would not find multiple
violations where a supervisor is asked about and repeats
the first to the same person.
It is clear that Little was not timid in her support of the
Union as she was "plastered" with badges and streamers
and wore a union T-shirt. She testified that there were
more conversations than the four which she described.
Martel testified that several times daily, as she worked in
front of his desk, she would ask whether the Company
would close down, what he thought of the Union and of
unions generally, etc.; but he denied that he discussed the
Union with her on five or six occasions. It stands
uncontradicted that Little did not work alone and that
other girls 3 or 4 feet away from her must have overheard
any conversations; yet there is no corroboration of her
account. (Little was not asked how Martel avoided
discussions, in part at least, and passed off her many
questions.)
Balanced against this reflection on Little's credibility is
Martel's testimony that he believed that he initiated a
conversation in which he asked why Little wanted a union;
and his earlier statement that he never initiated such a
conversation but that he may have asked that during the
course of one. Although not alleged, the question why
Little wanted a union was litigated and would tend to
interfere and be violative even if there be doubt in the case
of one so outspoken as she. Martel credibly contradicted
Little's testimony that he told her the Company was
fighting because of the Lawrence plant: the Union had
been defeated there a very short time before. I do not
credit Little's testimony concerning threats by Martel and
his connection of loss of overtime with union activities.
Little also told us that, among four or five conversations
concerning the Union which she had with Leger, a
supervisor under Martel, was one in the latter part of
November 1964, in which he said that the employees were
cutting their own throats and, when she asked why,
explained that the plant would close and all would be out
of work. As had Martel, Leger told us that several times a
day Little initiated conversations about the Union, and
that she wore union buttons or tags (there is no question
concerning her right to do that), making no secret of her
9 Thus making both sides unhappy. 4 See Hilton Mobile Homes, 155 NLRB 873
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stand. He maintained that while Little prodded him with
questions about possible loss of jobs if the Union came in,
he did not know what the consequences might be and so
told her. The impression left with me in all of this as in
connection with her talks with Martel is that Little,
whether so intending or not, asked questions which, had
the supervisors been willing to guess at possible results,
might have provoked answers which in form at least would
have constituted threats. I find no violation by Leger.
Paralleling but explained quite differently from Martel's
question why Little wanted a union, supra, is Leger's
question why Little thought there should be a union in the
plant: he was sparring in response to her question why he
thought there should not be a union. Little did not testify to
this.
Employee Carpenter testified that about the middle of
November, Calandrello, supervisor over several
departments, told her that he wanted to talk to her about
how she was going to vote and, after she referred to the
rule against talking about the Union during working hours
and told him that she had not thought about how she was
going to vote, he asked whether she knew how any of the
other women were going to vote; her reply was that she
had not talked to them about it since there was an
argument every time she talked to them. Calandrello
testified that he did not recall any conversation with
Carpenter about the bulletin board notice. But he was firm
in his denial that he had asked whether she knew how any
of the women were going to vote. I do not find the
interrogation here alleged.
Employee Tracey (she signed a card under her maiden
name, Hendry) told us that in the latter part of November
Supervisor Turke asked her what she thought of the union
situation. Her brusque reply that it was none of his
business does not lessen the tendency of the question to
interfere unlawfully in the existing context, and I find here
unlawful interrogation. Turke was not called to testify.
Returning to Seuberling, employee Slater testified that
about a week before the election Seuberling threatened
that he would be fired on the spot if caught putting union
literature on the wall. It appears that "literature [was]
posted in the plant relating to the union." If Seuberling
intended any distinction between posting in the plant
(which could include posting on the walls) and putting
literature on the wall, this was not pointed out by him; nor
has it been claimed by the Company. Aside from any
question of the Company's right to prohibit distribution,
infra, the apparent disparate treatment or threat to Slater
was violative. This threat was not denied by Seuberling
and it was hardly overlooked by counsel for the Company
since, when the General Counsel sought to cross-examine
Seuberling concerning it despite his failure to deny or
mention it on direct examination, the Company objected
that it had not been gone into on direct. Neither was this
allegation among those withdrawn at the close of the
General Counsel's case. I can but assume that Seuberling
recalled and, quite reliably, would not deny this threat.
Slater did not support the allegation of interrogation at this
time.
Slater also told us that 2 or 3 days before the election
Seuberling asked him why he was wearing a
monogrammed union T-shirt, and told him that it might
militate against his chances for advancement as "the
5 Such shirts were not unusual or a novelty in the plant at that
time
B As he testified, this was part of his reply to Poisson although it
supervisor would take notice" that he had worn the shirt
and had been involved with the Union. Seuberling's
version is that he went to speak to Slater about the work he
was to do that night and had not noticed that he was
wearing the T-shirt;5 that Slater volunteered the
explanation that "they" had told him to wear it; and that
Seuberling expressed his unconcern. The latter also
denied making the threat concerning advancement, and he
pointed out that he was himself "the supervisor."
Further, according to Slater, Seuberling said to him
about a week after the election that he had been paid
although he was off the day before; but that, had the Union
been there, he "would not have been able to have been
paid" for the day. Seuberling denied that he had said that
to Slater at any time.
Employee Harmon testified that a few days before the
election Seuberling asked which way he was going to vote
and that he replied that he had not made up his mind on
the "pros and cons about the union"; and that the
conversation was interrupted with the appearance of the
manager or director of plant engineering. Again
Seuberling's was a simple denial that he had asked the
question.
Aside from possibly significant reliance on Seuberling
because he did not deny the threat in connection with
putting literature on the wall, there is no basis in the
record testimony or in the witnesses' demeanor for
credibility findings in connection with these last three
allegations. I therefore do not find the violations alleged in
paragraph 9(o), (r), or (q).
It will be seen, infra, that before or about the time when
Coleman left early in November, supervisory janitor Hall
was given rank-and-file status; and although other janitors
had no knowledge of the change, he was a rank-and-file
employee of the Company. He testified that 4 or 5 days
before the election on December 17, Poisson, company
vice president, asked him whether he had attended the
union meeting the night before and when Hall replied that
he attended practically all,6 threatened that he would close
the plant before he paid $1.75;' and thereafter told Hall to
go out and get as many "No" votes as possible. If, as Hall
testified, when Poisson came up, Rogers said that he had
been trying to persuade Hall to vote "No," this was not
alleged as violative and was not put to Rogers. It is
contrary to Poisson's version.
According to the latter, only after Hall volunteered that
he had been seeking "No" votes for the Company did
Poisson ask whether Hall had attended a union meeting;
Hall replied that he had attended meetings only to find out
who was attending and so that he could tell them to vote
against the Union; to this Poisson's comment allegedly
was that he did not think that Hall "should do this on
behalf of the Company," and he laughed and walked away,
leaving a "startled" Hall.
Hall's purpose in attending union meetings, indeed
whether he in fact attended, is not in issue; what the two
said at this time is. It is no easier to believe that the top
company official at this plant, not charged with remarks to
any other employee, was guilty of such interrogation,
threats, and solicitation of a janitor than that the latter,
without the interference alleged, sought to curry favor. As
for the admitted question whether Hall had attended a
union meeting, this was not violative and would not tend to
is outside the quotation in the transcript , which is hereby
corrected
What this related to was not indicated.
SEMI-CONDUCTORS, INC. 723
interfere following, as it did, Hall's statement that he was
seeking "No" votes. I find no violation here.
Employee Meredith testified that 3 or 4 days before the
election8 Supervisor Bailey asked whether he thought the
Union would get in; and that when Meredith replied that
he thought it would, Bailey said that in that case the
Company would not put up another building as it was
planning to do but would move back to Lawrence. I find no
violation in the simple question, which Bailey denied,
whether Meredith, who was and had been wearing an
IBEW T-shirt, thought that the Union would get in. As for
the threat that the plant would move, Bailey denied any
such threat although he appeared uncertain as to whether
there were other conversations concerning the Union,
which he finally denied: his version of this conversation
was entirely different and quite innocuous. That another
supervisor allegedly present at the time did not hear the
question or the threat proves nothing; but we are left
without persuasive proof of either.
Carpenter also testified that 2 or 3 days before the
election Supervisor Kerekgyarto asked her why she was
wearing a union pin; when Carpenter "said because I
wanted to," Kerekgyarto asked whether the Union had
promised her something, and Carpenter replied in the
negative. That same afternoon Kerekgyarto allegedly told
Carpenter that the Company could move to Clevite, which
it had bought out. Kerekgyarto testified that out of her
"own curiosity" she asked Carpenter why she was wearing
the union pin; she "must have a reason," and if she had
any complaints, she should voice them. Kerekgyarto told
us further that as far as she knew only the Clevite
equipment, not the building, had been purchased by the
Company, and she denied that she had said that the
Company could move to Clevite. I find violative
interrogation, but no threat.
With respect to the allegation that the Company
promulgated and discriminatorily enforced a no-
solicitation and no-distribution rule against union
adherents,9 it appears that the Company posted on the
bulletin boards on October 9, 1964, and maintained1o there
until sometime during the monthly period following the
December election, the following notice:
Solicitation of any kind, collection of funds, group
congregating, participation of any activity for other
than authorized company business shall not be
carried out during working time without special
permission of the management head of the company.
Distribution, passing or posting of unauthorized
literature or material within working areas of the
company premises is forbidden. Violations of these
rules will be considered dischargeable offenses.
As Poisson told us, that rule had been promulgated in
Massachusetts in 1961, and was carried over to this plant;
and copies were allegedly distributed to all supervisors
(one testified that he was never given a copy). But not until
2-1/2 weeks after the September 22 Decision and Direction
of Election was the rule posted and thus brought to the
attention of employees."
Aside from this timing of notice to the employees, the
evidence indicates that it remained as a limitation on
employees' activities although the Company apparently
did not take steps to enforce it and in fact enforced it
disparately. Thus although Seuberling, supra, threatened
Slater concerning prounion literature distributed and
stuck on walls and equipment, antiunion literature was
affixed to material buggies which were pushed throughout
the plant, and company time and equipment were
employed in connection with antiunion literature: about 2
weeks and again about 1 week before the election,
electronic technicians, opposed to the Union, made up
such handbills in the laboratory, ran off copies on the
company duplicating machine, and distributed them at the
employees' entrance and at the front door.
Nor could the Company admit (it did not) that the
technicians engaged in "authorized company business" or
with Poisson's "special permission" in their building,
erection, and display12 of an electric sign with built-in
smoke and sound effects which would do a Bill Veeck
proud. This was indeed a "home team" device which was
erected and permitted to function without company
objection despite the rules. One can imagine that some
employees at least had a high time as the electronic
technicians exercised their ingenuity in constructing and
operating this combination electric sign and breathing
noisemaker which, during working hours, periodically
urged employees to vote against the Union.
We need not repeat the full regalement with which we
were favored, and several times, in connection with this
device. Suffice it to say that it was a sheetmetal sign
which, for several days and during their worktime, three
technicians constructed in the electronics laboratory,
using company material. The sign was approximately 1-1/2
by 2 feet and stood on a 6-foot partition. It had about 75
lights, blinked "Vote No," emitted smoke, and was
connected with a large horn or buzzer which "made
terrible noises" about every 10 minutes throughout the
working day for a period. It is not clear, however, that
many employees worked in the area and could observe the
sign.
Beyond the fact that "the materials were furnished by
the Respondent,"13 the time and space facilities were also
so provided; and all of this was apparent to at least some
employees despite the restriction on prounion activities.
The disparateness in posting, distributing, and enforcing a
rule against solicitation, posting of signs, and engagement
in noncompany business, while permitting such activity by
electronic technicians was, like the sign itself, flagrant (the
sign literally so).
On Tuesday, October 6, 1964, the Company, by letter,
notified all of the 122 employees in its pay group one
(included in the unit noted herein, which on that day
totalled some 180 employees) that they would receive a 10-
cent-an-hour increase, which would be included in the
paycheck which they would receive on Thursday of the
same week. Since the payroll week ended on Sunday, the
increase was retroactive for the week beginning
9 A variance in location is not significant
0 The General Counsel has specifically disclaimed that the rule
is invalid on its face.
10 See Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527
11 It will add nothing except of a cumulative nature to describe
and analyze a handbook and accompanying letter mailed by the
Company to all employees on November 19, 4 weeks before the
election
12 "Performance" would be a better word If the baseball
Senators would emulate the management of such teams as
Kansas City, Cleveland, and Chicago, I can heartily recommend
these laboratory technicians, who presumably would not find
magnification a serious problem.
13 Bishop and Malco, Inc , d/b/a Walker's, 159 NLRB 1159.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 28. Poisson was unable to recall any discussion
of the retroactivity with either of the other two persons
who were involved in consideration of this increase.
Upon his arrival in West Palm Beach on August 1 by
transfer from Lawrence, Burlingham, as personnel
manager, initiated a wage survey. Poisson evidently did
not know of this when he arrived: he testified that he
directed Burlingham to make a wage survey and was told
that it was under way. Although jobs and conditions
elsewhere were not shown to be quite similar, we can
accept as fact the testimony of witnesses on each side that
wages at this plant were deemed inadequate by employees
and now by management. Burlingham then gave Poisson
his survey notes with an oral recommendation and, 2 or 3
days later, "probably ten days before the letter" of
October 6, Poisson discussed the proposed increase with
Dusault, the company president, and the other person
described as involved in this problem. Dusault approved
the recommendation and sent the letter to the employees.
But through all of this a union campaign was being
conducted and an election was imminent. Our concern is
with the timing of the increase. The representation
petition had been filed on July 20. Burlingham arrived on
the scene 12 days later (he remained until January 1, 1965)
so that even his survey, the earliest step mentioned in
connection with the increase, followed the commencement
of union activities and the first formal step taken by the
Union for certification.
Not only has the Company not adequately explained the
need for its action at that stage, but it appears from the
Company's compilation of the number of employees in the
unit by weeks that when the increase was announced, the
complement of employees had almost reached the
maximum noted-and that without the wage increase-so
that the discovery that the Company was not competitive
in the local labor market is not impressive. (According to
Burlingham, the increase was not granted on the basis of
the Florida market alone. We need not detail various
inconsistencies in the explanations of the survey and the
reasons for it.) As for the second alleged reason, that the
Company would not be in compliance with the Walsh-
Healey Act were it to be the successful bidder on
government contracts, comment can be limited: this was
quite anticipatory. Sudden and immediate action was not
dictated; restraint was since an employer may not
campaign with benefits. Neither reason adequately
explains or justifies the announcement of increase at that
time or the retroactive feature. I find and conclude that the
increase was violative.
B. The Alleged Violation of Section 8(a)(3)
The issues of a statement by Seuberling to Perry
concerning withholding of increase, and by Coleman
concerning loss of opportunity have been considered
above. Also at the outset here it should be made clear that
I do not rely on a possibly exculpating suggestion that
Perry was a supervisor and therefore not the subject of a
charge of discrimination. Failure to promote him is not
alleged, and promotion is not sought.14 Certainly he was
not a supervisor after Howard Wilburn entered upon the
performance of his duties shortly after being hired on
June 25. If it had been contemplated that Perry, the first
electrician hired, would be made supervisor, he did not
qualify for that, and the promotion went to Wilburn, who
had been hired at the higher rate before the
commencement of union activities; the facts indicate no
discrimination there.
Perry was generally qualified and there is no issue
concerning his ability although sometime after
September 23 he failed the examination for master
electrician's certificate. The Company paid for the
examination as under a city ordinance it needed licensed
men. Wilburn had a certificate before he was hired, and
thus met a requirement for supervisor, at a $3.50 rate,
which was approved for him at the main office in
Lawrence.
In September other maintenance men received
increases (apparently not above the top $3.15 rate) on
recommendation by Coleman after he had discussed them
with Seuberling. The latter, confirming what Coleman
testified he already knew, told him that the quantity of
Perry's work was not satisfactory and that he was
disrupting production. Martel, production supervisor, had
previously told Coleman that under no circumstances was
Perry to work in his area; he got the girls to talk and laugh
when they should have been working.
On or about September 23, at Perry's request, he and
Coleman held a merit wage review conference. Coleman
denied that they discussed Perry's union activities and
that he referred to Perry as a union organizer and
otherwise referred to the Union. He did tell Perry that he
was already at the top of the grade for maintenance
electrician and that there was no authorization for him to
go higher; and that he would not give him an increase
anyway because while the quality of his work was good,
the quantity was not, also because he disrupted
production and because he had rifled Coleman's and
others' desks. The greatest emphasis and testimony pro
and con were directed at the hearing to the third of these
alleged reasons; both the quantity and the quality of the
evidence in this respect reflect on Perry's credibility
generally and on the validity of the charge of
discrimination against him because of his union activities,
aside from any question of authority to increase his rate
beyond that of any unlicensed maintenance electrician
other than the supervisors.
On the question of credibility, Perry's contradictory
statements about the number of Board envelopes he saw
in the trash from the office and elsewhere in the dumpster
at a later time, and his story that he went to the dumpster
to get wrapping paper was fanciful, as was his attempt to
explain his presence at office desks on certain Saturdays
in May 1964. I credit the reports and testimony of three
security guards (the first as to events directly in issue and
as to which Coleman charged Perry during their
discussion of September 23) including the fact that he
visited various offices and searched through desktop
papers and in desk drawers.
Whatever attacks are made on Coleman's credibility, it
is clear that he was aware of and charged Perry with rifling
desks. Although recalled and questioned about the matter,
the latter did not deny Coleman's testimony concerning
what occurred when he confronted Perry with this on
May 25 and warned him. I do not credit Perry's
explanations for his presence and actions in the offices
14 Cf. Mooney Aircraft, Inc., 156 NLRB 326, where the
recommendation was made and adopted to promote an employee
to leadman
SEMI-CONDUCTORS, INC.
and later among the discarded papers outside. (Nor need
we go into other activity for which he was reprimanded,
which bear on the no-solicitation and no-distribution rule
found violative, supra.) While it would be no great chore to
analyze further the relevant testimony pro and con in this
connection, I shall withhold details and analysis to spare
Perry further embarrassment. I am convinced that his
explanations were attempts to distort the truth; and while I
have no hesitancy in thus assessing them where falsity is
so apparent, it will be a kindness not to detail his attempts
to explain or justify.
Like many verbal flights and unlike ventures into the
wild blue yonder, these explanations lost altitude and in
fact literally descended into unbelievable depths as they
gained speed. My impression of credibility and of what
occurred is very clear and definite; I prefer to limit my
expression although intending it to be quite as definite.
I cannot and need not absolutely exclude the possibility
that the Company would have treated Perry differently but
for its knowledge of his union activities. Conceivably, if
one would speculate in the other direction, it might have
taken further justifiable action against him but for such
activities. On the record before us, it appears and I find
and conclude that Perry's protected concerted activities
did not cause or trigger the refusal of a wage increase.
Suffice it to say that, aside from any question of an earlier
commitment to promote him, the Company acted with
restraint in merely refusing the promotion.
Understandably it did not recognize him as a paragon in
leadership or reliability. Granted his competence as a
mechanic and his role in organizational activities, as well
as the Company's knowledge thereof, I find and conclude
that the Company did not discriminate against him.
C. The Alleged Violation of Section 8(a)(5)
On the basis of the Regional Director's Decision and
Direction of Election dated September 22, 1964, as
amended by stipulations of the parties dated November 20
and 23, 1964, I find and conclude that the following is an
appropriate unit within the meaning of Section 9(b) of the
Act:
All production and maintenance employees, including
quality control inspectors at the Company's West
Palm Beach facilities; but excluding all office clerical
employees, technical employees, including quality
control technicians, temporary employees, profes-
sional employees, guards, and supervisors as defined
in the Act.
Whether as viewed by the Regional Director on the
basis of the facts as submitted to him and prospectively
thereafter, or from actual employment by the Company in
December 1964 and thereafter, as noted at the hearing, the
eligibility list of employees in the unit as described,
submitted by the Company, constitutes a representative
complement. The Company has not supported its early
claim that this was an expanding unit and that there was
no representative complement of employees in December
1964. It appears that there has not since been any marked
change either in number of employees or in type of
operation with respect to this unit . Further, any expansion
15 See Rish Equipment Company, 150 NLRB 1185, 1193-94
Unlike that case, supervisory status was not here relitigated.
is The court' s opinion in Peterson did not issue until March 11,
1965, some 3 months after the refusal to bargain and the election
here
725
of or accretion to the unit could thereafter be made the
subject of a petition to the Board or of procedure for
clarification under Section 102.60, et seq. of the Board
Rules and Regulations.
Of the 224 names on the list, that of Gerald Whitfield is
to be excluded as found by the Regional Director in his
report of February 24, 1965, the Board adopting this in its
Order of April 1, 1965.15 Whether or not the request for
recognition was a continuing one, no claim has been made
of majority at any later date, and the circumstances at a
later date were not explored at the hearing. A majority
thus consists of 112 and, as litigated by the parties, proof
was received on the issue whether the Union had such
majority on December 6, 1964, when as admitted it
requested the Company to bargain collectively with it.
Before undertaking a count of the cards, we must
consider their validity as designations of the Union as
collective-bargaining representative. The cards as signed
and received are in two virtually identical forms. There is
no issue concerning difference in form. There is issue, and
a serious one in view of the authority cited by the
Company, concerning the validity and effect of the cards
in either form. The cards bear the following heading in
large, boldface type:
I WANT AN NLRB ELECTION NOW !
AUTHORIZATION FOR REPRESENTATION
Immediately below and in smaller type appears the
following:
I authorize the International Brotherhood of
Electrical Workers, to represent me in collective
bargaining with my employer.
From the very beginning of the hearing,t6 the Company
has relied on and cited the court of appeals' decision in
Peterson Brothers,ii reversing the Board's holding18 in
that case. Aside from my obligation to follow the Board,
and although it is neither my duty nor my privilege to
exercise the Board's right to cite decisions in other circuits
and to attempt otherwise to persuade the court here, I
recognize and would point to what may be significant
differences between the facts in Peterson and those here.
The court there pointed out that, after the heading and
the body of the card, both of which referred to
representation as collective-bargaining representative, the
following was printed at the bottom of the card:
This is not an application for membership. This
card is for use in support of the demand of this union
for recognition from the company in your behalf,
or for an N.L.R.B. election.
Relying on the alternative aspect which it thus emphasized
as creating an "ambiguity on the face of the card," the
court declared that the Board should have considered "the
subjective intent of the signer."
It need not be found that the instant cards are a model
or a paradigm for emulation. But even if the disjunctive
created an ambiguity in Peterson, we have no disjunctive
and no ambiguity here, where both purposes are clearly
set forth in the same place and in the same size type, with
the addition of repetition of the authorization or purpose to
represent; and therefore no warrant for inquiry into
signers' intent in the face of their act in signing.19 The
1 t N L R B v Peterson Brothers , Inc., 342 F 2d 221 (C.A. 5).
is Peterson Brothers , Inc , 144 NLRB 679
19 Bauer Welding & Metal Fabricators , Inc., 154 NLRB 954
We shall consider infra whether signers otherwise misunderstood
or were misled.
299-352 0-70-47
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point may be clearer if it be understood that, without
minimizing intent, I do not rely on or consider it in the face
of the overt act, of which more below.
The Company argues in this connection that the signers
of these cards thereby indicated that they "desired to
authorize the IBEW to represent [them] in securing an
election . . . rather than an authorization to represent the
employee[s] in collective bargaining"-in short, that
AUTHORIZATION FOR REPRESENTATION does not
mean "authorization to represent." "Winning the election
was a precondition to representation," as the Company
maintains, but this is true and the purpose in every
election situation, as the Company emphasizes in quoting
employee Hall. Were this a valid limitation on or bar to
authorization to represent, no card could meet it. The
Company argues far too much in concluding that
"therefore an authorization to represent meant an
authorization to arrange for an election" rather than and to
the exclusion of an authorization to represent in collective
bargaining. To say that "the authorization cards are for"
proof that the employees want an election does not
exclude the purpose of representation stated on the cards
and testified to by the employees on the issue of sole
purpose.
It will serve little purpose to analyze once again such
leading cases as the oft-analyzed Cumberland Shoe 20 and
S. N. C. Manufacturing. 21 Similar holdings are to be found
in the more recent Freeport Marble'22 Lenz,23 and Shelby
Manufacturing24 cases. It may be stated as a general
proposition that, where a card solicitor has not told a
signer that the purpose of the card is only to obtain a
Board election,25 "the failure of the Union's solicitors to
affirmatively restate [the cards' authorization for
representation] does not indicate that it was abandoned or
ignored," in the words of Cumberland Shoe.
No more than when printed on the card do oral
statements by a solicitor of additional purposes, objects, or
reasons why a card should be signed negate (unless by
their very terms they do negate) the object of
representation stated on its face, even if inter alia. Except
in the case of employees Graves and Hall, in no instance
does the credible and credited testimony show, as we
examine the entire testimony received concerning each
card, infra, that a signer was told that the card was for an
election only. Where discussion leading up to signing of a
card concerns advantages or benefits to be derived or
hoped for from union representation, it is reasonable to
Cumberland Shoe Corporation, 144 NLRB 1268
21 S N C. Manufacturing Co., Inc , 147 NLRB 809
22 Freeport Marble & Tile Co, Inc, 153 NLRB 810
23 Lenz Company, 153 NLRB 1399
24 The Shelby Manufacturing Company, 155 NLRB 464, where
the cards contained the disjunctive but, as in Peterson, after a
specific authorization for representation
25 Englewood Lumber Company, 130 NLRB 394
26 These observations are unnecessary in view of the truncated
procedure herein and the remedy proposed.
27 A truthful answer to a partial (in the sense of fractional)
question may be a half-truth and quite misleading
28 Quasi-judicial agencies and even Trial Examiners, like
courts, are free to err and to correct themselves until they are in
turn corrected in higher forums, up to the Supreme Court; and
even that highest of all lies exposed in the forum of law school
professors and their students , who can be criticized only by their
peers Whether or not this freedom to err be a constitutional right,
it is buttressed by precedent which is prodigious and, in volume at
least , impressive
29 In Pizza Products Corporation, 153 NLRB 1265, where the
conclude that the person soliciting the signature and
reciting such advantages is stating the latter as a reason
for the former. Consistent26 with rejection of testimony
concerning a signer's intent, mental reservations, or
afterthoughts as distinguished from statements of purpose
on the card or orally made, I shall point out, infra, that a
signer's intent, purpose, or reliance thereon should
likewise not be considered if the testimony shows that
misstatements of fact were made which would tend to lead
him to sign: the tendency can be found as a reflection of
the solicitor's purpose and as an inference from his own
inferred evaluation of it in making the misstatement.
The testimony indicates that various employees were
told that some had signed for the Union (no
misrepresentation is indicated as to that, whatever the
truth and effect of claims of majority), and that an election
was sought; but they also had been told of or discussed the
elements of representation or benefits-aside from the
language of the cards which they signed. To cite an
instance of possible ambiguity as favorable to the
Company as any, employee Sikora testified concerning her
intent (after intent had been ruled out) after she had been
cross-examined concerning an earlier statement. In
response to a limited question'27 she answered partially
(that was her complete answer to the question as put to
her) that she signed the card to get an election. Questioned
further, she testified that she wanted the Union to
represent her. Thus even if we were to consider intent in
the face of overt acts of statements and signature, her
testimony is reasonably understood as indicating that she
desired an election but also wanted that representation
which would be available if they "could get the union in."
But again, her card speaks clearly as a designation of the
Union or authorization for representation; and that voice is
neither muted nor made unclear by any contrary
statement to her when or before she signed the card.
I have long been reconciled to the need to analyze the
evidence in detail with its pro's and con's concerning the
122 cards received on the issue of majority: the status of
some signers and solicitors; statements allegedly made
concerning the purpose of the cards; and representations
of majority when signatures were solicited. Also, while the
rule appears to be that misrepresentations as to majority in
hand must be shown to have been relied on by the signers,
it can be argued both on principle,28 as I have just
promised to point out but now need not and on the basis of
recent Board declarations,29 that a false representation as
Board adopted the Trial Examiner 's Decision without
modification, the Examiner rejected employee Chnstjohn's card
as invalid He did not base his finding on Christjohn's testimony
that she relied on the representation that all but one had signed;
he specifically expressed doubt concerning any such reliance But
he did "accept," by way of contrast which he thus made clear, her
testimony that the representation was made to her Thus was
emphasized the making of the representation , rather than its
effect or the employee's reliance upon it
In Shapiro Packing Company, Inc, 155 NLRB 777, the Board
found it "unnecessary to decide (a hopeful sign , or am I grasping
at straws9 ) whether the exclusion was proper " with respect to a
card signed "on the basis of a statement" of majority by the union
solicitor The Trial Examiner made no finding whether the card,
which had previously been rejected by the employee but was
signed after the false claim was made, was in reliance on that
statement or that it would not have been signed but for the
statement . The signer testified that he had stated when solicited
that if everybody had signed (the claim as he described it had not
been so all inclusive ), he would go along too The Trial Examiner
found that the misrepresentation rendered the card invalid.
SEMI-CONDUCTORS, INC.
of existing majority made by one who solicits signatures
vitiates the cards without proof of reliance on such
representation.
But whatever a detailed analysis of the cards and the
testimony concerning them may disclose, and whether the
cards on their face are authorizations for representation or
mere requests for an election, the overall conclusion and a
fair and adequate remedy are clear under the
circumstances here. Having reached this point, I have
reviewed and weighed the proof and reached certain
conclusions. It is now necessary in this Decision to explain
these by consideration of the entire record and references
as the "reasons" called for by statute are presented.
I now realize that inclusion here of the detailed analysis
which I had anticipated may be unnecessary because of
the nature and extent of the proof of interference and also
because of the consideration which ought to be given to
the desires of the employees. We can thus avoid a boscage
of words, attitudes, and unnecessary findings. (Counsel
cannot be charged with this since at the earlier stages they
could not foresee what the proof would be; nor assume the
risk that so much would be unnecessary.) A finding that
the Union had a majority of valid cards would, under the
facts here and for reasons which I shall indicate below,
dictate another election at the Union's request, the effect
of the interference found having been dissipated; while if
the Union lacked a majority, it could now, as shortly after
the hearing and since, request another election.
It was apparent to counsel at the hearing that I not only
followed very closely the testimony concerning each of the
122 cards submitted by the General Counsel to show
majority, but that I also tentatively noted findings; and I
declared to counsel that the margin would be very small,
whichever way the tally went. Review has since served to
resolve the doubt in a few instances; in the others it has
confirmed my earlier impressions. If whether there was a
majority or not, the same remedy will lie, there would be
29-Continued
In Pretser Scientific, Inc , 158 NLRB 1375, the Trial Examiner
declared with respect to the card signed by employee Fox
even if it be assumed that such representations were
made and that they would have invalidated Fox's card if she
had relied on them, it would still be necessary to find that,
since she did not in fact rely thereon, her card was valid
But the Board specifically left open the question of validity of the
card because of absence of reliance on the misrepresentation,
declaring that it was not counting the card since it was
"unnecessary to reach the merits of the Trial Examiner's finding
as to Fox "
In Phil-Modes, Inc , 159 NLRB 944, the Board did not reverse
but merely declared it unnecessary to pass upon the Trial
Examiner's rejection of cards signed by employees Hickman,
Powell, Paris, and Spradlin The Trial Examiner had rejected
Hickman's card because of a misrepresentation made when she
was asked to sign it, and without reference to whether she had
relied on the misrepresentation that the respondent had said it
was all right to have a union Because of a similar
misrepresentation and without reference to reliance thereon, the
Trial Examiner rejected Spradlin's card Whether Powell or Paris
relied on the misrepresentations made to them had not been
considered either They had been told what was said to Hickman
and also that all except one other (in Paris ' case , two others)
employee had already signed The Board's failure or continued
reluctance to point out, as it could readily have done, that there is
no evidence that these employees had relied on the
misrepresentations , is encouraging and further suggests the
advisability of a de nova analysis of the issue of misrepresentation
and of relevance of testimony concerning reliance Such analysis
would cover the general rule with respect to tendency rather than
727
little reason and no profit in analysis with respect to each
card. I can state in summary as a credibility finding, if it be
of importance here or only of historical interest or to
satisfy curiosity, that from the testimony and the witnesses
as they testified, 115 (all but Graves', Hall's, and five
others) of the cards, a majority, are valid.30 Because five of
the cards which I would not include fall into one group, it
can quickly be explained without detailing the testimony
that, whatever the dispute concerning the date when Hall
lost his status as supervisor or company spokesman to the
janitors, he signed his card when he was supervisor and it
does not appear that the four other janitors who signed had
been told or were otherwise aware of a change in Hall's
status when he solicited and obtained their cards. The four
include Jenkins who, hired a month earlier, signed on
November 23 when Hall's relationship to the group of
janitors continued as before although his authority by that
time was more apparent than real. We were told that about
the middle of November "the other janitors continue[d] to
look upon [Hall] as their boss" even after notice that Biby
was their supervisor.
Whether the Company further unlawfully failed to
bargain in connection with termination of certain
employees and the subcontracting of some jobs in March
and April 1965, would depend on its obligation to bargain.
The testimony in the latter connection was, as noted,
directed to the 1964 request and refusal. We were not
favored with proof of union status thereafter, and neither
the General Counsel nor the Union adverts to these
allegations in the briefs submitted. We do have a
stipulation that the employees named were terminated,
and it does not appear that the Company gave the Union
notice of that or of the subcontracting.
Having for the present avoided details of a mass of
testimony and as much as 100 pages of written analysis of
many cards31 and the circumstances surrounding the
signing of each, with separate credibility findings in lieu of
actual effect, and the extent to which inquiry into reliance would
affect hearings, as well as a comparison with the rules concerning
statements of alleged limitation of card purpose
Where principle indicates to me that validity depends on what
the solicitor said rather than on whether the signer relied on it, the
hope that the Board will so hold is bolstered by these avoidances
of a contrary ruling I myself "do not rely on" these cases since we
have not reached and it is unnecessary to pass on the question
whether, where misrepresentation has been made, reliance
thereon by the signer must be shown What is here set forth
represents some of my reflections on this point and may guide
deliberation when the issue of reliance needs to be determined
30 Graves' card, with all of the testimony pro and con
concerning it, could be counted as valid but for her testimony on
cross-examination, which differed from other things which she
said, that she was told that the only purpose of the card was to
have an election Sufficient doubt was here created, without
leading by counsel who sought such an answer, to warrant
rejection of her card I similarly reject Hall's card
I have counted as valid those cards (factually, should they be
rejected, there would be a finding of less than a valid majority)
whose signers discussed or were told the benefits of unionization
and also that the cards were for an election I construe reference
to benefits as connected with representation and the authorization
therefor (Conren, Inc, 156 NLRB 592) But in Dan Howard Mfg
Co., 158 NLRB 805, the Board did not so regard the cards of
Thomas and Terrell, who had also been told that the cards were
only for an election This finding of 115 valid cards is aside from
the issue concerning the effect of claims of majority made by
solicitors
3i Analysis of the cards must refer to more than the few
described in the respective briefs
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the overall finding made above, we can proceed to
consideration of a proper remedy.32 The law is well
established that an employer's activities may indicate
absence of good-faith doubt of a union's representative
status. In such a case, on a finding that the employer
rejects the collective-bargaining principle or desires to
gain time to undermine the union and dissipate its
majority, violation of Section 8(a)(5) is found.33 But this is
no per se rule to be applied mechanistically, as the Board
has indicated in Hammond & Irving. 34
In the latter case the vote of 44 to 65 against the union
was as close to being proportionately identical to the 89 to
129 vote here as could be without being actually so. In
Hammond, 70 of 110 in the unit signed cards; here 122 of
223 (or 227 if we follow the election tally) signed, whether
valid cards or not, so that the dropoff in the election and
the conceivably attributable effect of the interference
were smaller than in Hammond.
As in Hammond, the interference here is not sufficiently
flagrant to indicate bad faith under the JoySilk Mills rule.
Nor is it so flagrant as to indicate that the employees'
desire has been thwarted or to warrant imposition of a
bargaining agent upon them. In this latter respect we can
consider not merely the employer's good faith within Joy
Silk and Hammond, but in addition the effect of the
interference on the employees, and their rights and
desires. A historic and long-recognized purpose of a Board
Order is "a restoration of the situation, as nearly as
possible, to that which would have obtained but for the"
unfair labor practices found.35
It cannot be found here on the basis of the evidence
before us that a majority of the employees in the unit
favored the Union or that, but for the interference found,
the Union would have won the election. In short, as we
reflect on the bare card majority, the relatively little
interference, and the election tally, we cannot find loss of
actual majority and attribute such loss to the unfair labor
practices found, or that the lack of majority in the election
more nearly reflected the interference found than the
employees' actual preference as indicated by the secret-
ballot vote (allowing for the interference on such ballot).
Whatever the rights and interests of union and employer,
employees must not be deprived of the right to express
themselves within the election procedure or otherwise to
indicate their preference. Unless their choice is
reasonably indicated, the employees' rights should not be
limited or denied or made dependent on the employer's
or the union's acts. As has recently been declared,
32 This is not merely a departure from expectation , it is, I trust,
an improvement.
33 Joy Silk Mills, Inc., 85 NLRB 1263, enfd as modified on
other grounds 185 F.2d 732 (C.A D.C ), cert denied 341 U S 914
34 Hammond & Irving, Incorporated, 154 NLRB 1071
33 Phelps Dodge Corp v N.L.R B , 313 U.S 177,194
31 Board Member Brown, September 6,1966.
37 Preston Products Company, Inc., 158 NLRB 322.
38 Griffith Ladder Corporation, 159 NLRB 175
39 Heck's, Inc., 159 NLRB 1151
40 Texas Electric Cooperatives, Inc , 160 NLRB 440
11 In this connection we must keep in mind the card count, the
size of the unit, the election tally, and the extent and nature of the
violations
employees have the right of "meaningful participation in
our democratic institutions. "36
The instant case is in marked contrast to several recent
ones where a bargaining order issued. In Preston
Products'37 although the union lost the election by a wide
margin, the employer was ordered to bargain, there having
been a great deal of interference. A similar situation
obtained in Griffith Ladder Corporation.38 In Heck's,
Inc.39 the employer systematically and unlawfully
interrogated the employees as to whether they supported
the union, to the point where it could identify each. Cf.
also Texas Electric'40 where bargaining was directed
despite an overwhelming vote against the union, there
being many instances of interference and two of
discrimination in a unit one-eighth the size of that here.
Since discrimination if found would be weighed in this
connection, the restrained treatment of Perry may be
considered as pushing the scales in the opposite direction.
We have noted that the vote margin against the Union is
not attributable to the limited interference.41 In Hammond
& Irving, the employer's executive vice president and its
vice president, in separate conversations, questioned 6 of
110 employees concerning their and others' union
activities and sympathies, solicited withdrawal from the
union, and gave the impression of surveillance of union
activities. The employer there also sent to each employee
a letter which contained a violative promise of benefit. In
the instant case the detailed analysis of the evidence,
supra, reveals that five employees were respectively
interrogated (three instances) or threatened (two
instances) by a maintenance supervisor and four
department supervisors.42
More serious than these few violations by low-level
supervisors is that with respect to the noisemaker and the
no-solicitation rule and the violation found in connection
with the wage increase of October 6, which are the
counterpart of the employer's letter promising benefits in
Hammond & Irving. The tendency of the increase is to
interfere even if there was no slowdown in the number of
new cards which the Union thereafter obtained. While we
cannot rely on a mechanical comparison for the answer,
the interference found here reflects less, and certainly
proportionately so, of bad faith than does that in
Hammond. If there be any doubt in this connection despite
the fact that the Company's position here is at least as
strong as that in Hammond, we have weighed the problem
and arrived at the same result by considering the available
evidence with respect to the employees' desires. Whether
considered in one way or another, there does not appear to
12 The relative seriousness or lack of it would not be
significantly affected if we added the two instances of
interrogation , one of threat , and one combining interrogation and
threat (two of these four by two other department supervisors and
one by a person whose supervisory status was denied). These
allegations were withdrawn by the General Counsel in accordance
with my early suggestion to avoid the cumulative In contrast to
the attention given herein to the various allegations of
interference, only a few are even mentioned in the General
Counsel 's brief, which can reflect the proponents ' appraisal of
significance , and not all of those have been found The Union's
brief is devoted to the refusal - to-bargain issue.
SEMI-CONDUCTORS, INC.
be warrant for not attempting to obtain a fair expression of
the employees' will before any direction to bargain.43
Certainly a union which is the bargaining representative
may not be interfered with in its representative capacity.44
But the issue here is whether the Union is in fact the
representative; and the first consideration may well be the
employees' desires as reasonably indicated by the
available evidence with due consideration for the effect of
any interference.
In thus stressing the element of employees' wishes in
addition to that of the employer's good faith, I am
concerned with the question, what is to be done in this
very real situation affecting several hundred employees?
These are no mere numbers or faceless individuals; they
have rights, among them the right to choose or reject
representation.
Had the Union rested on its majority of cards, however
thin, without testing that majority in an election, we would
not be faced with the marked vote against it although the
issue of good faith under Joy Silk Mills and Hammond &
Irving would still be with us. But although the majority of
cards was so slight (aside from any question of statements
made and the issue of reliance thereon), the Union, with
the apparent expectation that the vote would favor it, did
proceed to an election, with the result noted. And we may
not ignore that result or the attendant circumstances. I do
not suggest a return to the Aiello rule.45 The question is
not union election or waiver; but given the Union's right to
seek relief from an original refusal of recognition, there
remain the question of good faith, recognized in Hammond
& Irving, and also the subsisting rights of the employees,
as indicated by the facts in this case.
On the latter point, it may be repetitive to state that the
vote margin against the Union more clearly reflects the
employees' freely expressed desires than the interference
found can be held to be so flagrant and effective as to have
interfered with those desires to the extent that it destroyed
a majority. We can and should avoid a representational
invagination and imposition of a bargaining representative.
Hopefully, a new election can soon be held and the
employees' desires with respect to representation
determined.
Reflection over a long period and many notations
concerning the issues in this case while more immediate
attention was directed toward other and far different
questions have led to this shortcut to what appears to me
to be the likely denouement. If there be no precedent for
this anticipation that the Board will find further detailed
analysis unnecessary as I do, it nevertheless appears to be
41 In his brief to the Circuit Court of Appeals for the District
of Columbia in United Steelworkers of America, AFL-CIO v
N L R B. [Northwest Engineering Company], 376 F 2d 770,
the General Counsel points to the disparity between the number
of cards in that case and the closeness of the vote in the election
to show that by its extensive interference the employer planned
"to undermine the Union and lure away its support " The
General Counsel thus justified the Board's Order that the
employer there bargain with the union The Board there found
729
in order and desirable. As I have indicated, .my own
analysis shows that this result would be reached in a
detailed decision, which I have here avoided however
much I should like to express the many thoughts, noted
during and since the hearing, on the various issues and
points raised; these including reliance on misstatements,
and partial or limited questions which can elicit only half-
truths and misleading replies even from an honest witness.
Should the Board desire detailed findings of fact with
respect to the various cards and the circumstances
surrounding the signing of each, and with respect to such
lesser (in volume certainly) items as the changing status of
Hall as affecting his card and that of several others, I am
prepared to provide all details on remand.
III. THE OBJECTIONS TO THE ELECTION
Nor do the objections to the election and the findings
thereon suggest a different remedy. Of objections 1, 2, 3, 4,
7, and 12, which are before us, the following can be said:
Objection 1. The findings with respect to the no-
solicitation, no-distribution rule support objection 1 (see
objection 12, below), which I sustain.
Objection 2. The findings with respect to interrogation
support objection 2, which I sustain.
Objection 3. The findings with respect to alleged
discrimination against Perry indicate that objection 3
should be and it hereby is overruled.
Objection 4. The findings with respect to threats
support objection 4, which I sustain . It will serve no
purpose to consider evidence of other threats.
Objection 7. The findings with respect to the wage
increase of October 6, 1964, support objection 7, which I
sustain.
Objection 12. Objection 12(a) is sustained on the basis
of testimony that union adherents were photographed by
and in the presence of a supervisor. In the absence of a
right to forbid the wearing of union shirts, counsel's
warning or threat at the preelection conference that
pictures would be taken does not exculpate the Company.
I do not join in the "inference" or implication of plant
closure claimed on the basis of notices posted, and
therefore overrule objection 12(b).
The findings with respect to the no-solicitation rule,
above, and objection 1 were at least in part based on and
cover the discriminatory treatment with respect to the
devices mentioned in objection 12(c), which need not be
reasserted and is therefore overruled.
[Recommended Order omitted from publication.]
that the employer had "embarked on a course of action, involving
serious violations of the Act, which resulted in the dissipation
of the Union's majority and the destruction of the conditions
for a fair election in which the Union could have demonstrated
that majority." As shown, we do not have such a situation here
41 Wooster Division of Borg-Warner Corporation, 113 NLRB
1288; 121 NLRB 1492, enfd. 236 F 2d 898 (C.A 6), 356 U S. 342
45 Aiello DairyFarms, 110 NLRB 1365