Pure Chem Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1971

192 N.L.R.B. 681 (N.L.R.B. 1971)

PURE CHEM CORP. 681
Pure Chem Corporation and General Truck Drivers &
Helpers Local No. 315, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America
Pure Chem Corporation and General Truck Drivers &
Helpers Local No. -315, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen ,& Help-
ers of America, Petitioner. Cases 2,0-CA-5942 and
20-RC-9035.
August 17, 1971
DECISION AND ORDER
On December 29, 1970, Trial Examiner Leo F.
Lightner 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. He also found
that Respondent had not engaged in certain other
unfair labor practices and recommended that the
allegation pertaining thereto be dismissed. The Trial
Examiner further recommended that the representa-
tion petition be dismissed and that all proceeding held
in connection therewith be vacated., Thereafter, the
Respondent filed exceptions to the-Trial Examiner's
Decision with supporting brief, and the General
Counsel filed cross-exceptions and a brief in support
thereof.
The Board has reviwed the rulings of the Trial
Examiner made at the hearing and, finds for the
reasons set forth below that no prejudicial error was
committed. The ruling are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
these cases, and hereby adopts the Trial Examiner's
findings,' conclusions, and recommendations.
The Trial Examiner found, and we agree, that
Respondent committed various violations of Section
8(a)(1) of the Act by making certain plant improve-
ments, engaging-in interrogation, promising benefits,
threatening plant closure, and threatening to remove
employee benefits if the Union won the election. We
also agree with the Trial Examiner's 8(a)(5) finding
and the issuance of a bargaining order.
Our dissenting colleague would refuse to set aside
the election because Petitioner's objection to the
election was overruled, and he would also dismiss the
r While the Trial Examiner's findings with respect to the polling of
employees do not so state , the record establishes that the polling did not
satisfy the preconditions to lawful polling enunciated in Struksnes
Construction Co., Inc., 165 NLRB 1062.
2 149 NLRB 627.
3 Morris Novelty Co., Inc., 157 NLRB 1471 , 1484, enforcement denied
on other grounds 378 F.2d 1000 (C.A. 8, 1967). (Emphasis in original.)
192 NLRB No. 88
8(a)(5) allegation., We disagree. Although the election
was set aside as a result of the Regional Director's
postelection investigation rather than upon the
specific grounds urged in the objections filed by -the
Union, the Irving Air Chute2 requirements are
satisfied where we do not have the results of a "valid"
election.3 "It should be clear ... that the Board in its
responsibility to determine whether a fair and
conclusive election was held, may -consider relevant
evidence disclosed in its investigation, independent of
whether the conduct is raised in formal objections." 4
It is well settled, therefore, that the Board- may
properly consider evidence discovered during a
postelection investigation,5 and that such evidence
alone may be used to set aside an election s The Board
has held that, as in-the instant case, an election may be
set aside and a bargaining order issued where
objections to the election were found to be without
merit, but where the employer had engaged in various
unfair labor, practices which were discovered during
the postelection investigation.? In this case, the
complaint contained specific allegations of unlawful
conduct which occurred during the critical period. To
allow Respondent to avoid the ramifications of this
conduct simply because the Petitioner failed to frame
the scope of such conduct within his objections would
frustrate the rights of employees which are of
paramount importance.
The dissent also states that the requirements of due
process have not been satisfied because- the `Trial
Examiner did not give Respondent's counsel an
adequate opportunity to prepare his defense in light of
the amendments offered at the hearing. Yet, the Trial
Examiner did, in fact, offer to postpone these
proceedings. The record shows that Respondent was
informed by telegram on June 3 of certain amend-
ments to the complaint which would be offered at the
hearing. At the commencement of the hearing on
June 9, the General Counsel moved to amend the
complaint by adding five of these amendments and
two additional amendments of which Respondent
had no notice. Following the motion, Respondent
requested a 1-month continuance in order to prepare
its defense. The General Counsel did not object to a
continuance but preferred to' have the hearing
delayed, if necessary, only a few days. The Trial
Examiner then denied Respondent's motion for a 1-
month continuance, but offered- to postpone the
hearing until the following week so that Respondent
would have at least 10 days' notice from the date he
4 Fasco Industries, Inc., 173 NLRB No. 85, TXD, fn. 54.
5 N.LR.B. v. Realist, Inc., 328 F.2d 840 (C.A. 7, 1964).
6 National Electric Coil Div. McGraw-Edison Company, 184 NLRB No.
95; Thomas Products Co., Division of Thomas Industries, Inc., 169 NLRB
706, and cases cited therein.
I Dawson Metal Products, Inc., 183 NLRB No. 25 . See also NLRB. v.
Gissel Packing Company, 395 U.S. 575 , fn. 34.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received the .General Counsel's telegram. Respon-
dent's attorney declined this offer because of other
commitments. The , Trial Examiner also advised
Respondent that it ` could renew its request for, a
continuance, at the conclusion of the General Coun-
sel's case if it still felt that it had not had an adequate
opportunity to prepare its defense, but Respondent
did not renew its request at that time.
As the Respondent did not have any notice as to
amendments (1) and (J), a threat, of plant closure and
a threat to remove employee benefits, respectively, we
do, not, in the circumstances of this case, rely on any
of the testimony as to amendments (1) and (J) and
those allegations are, accordingly, dismissed.
With, regard, to ;the other amendments, the question
of whether a continuance is to be granted is a matter
within the discretion of the Trial Examiner, and we
cannot say that he abused his discretion in this case in
light of the fact that Respondent had sufficient notice
of these amendments, including the specific nature
thereof, that it was offered a continuance until the
following week, and that it was given an opportunity
to renew its request. - for a continuance at the
conclusion of the General Counsel's case.
in, considering. the entire record, with the exception
of the evidence ^ introduced in support of amendments
(I) and (J), we find that Respondent has violated
Section 8(a)(5) and (1) of the Act, has engaged in
other, 8(a)(1),conduct, and that a bargaining order is
appropriate. For these reasons we adopt the findings
and conclusion 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
the Respondent, Pure Chem Corporation, Richmond,
California, its officers, agents, successors, and assigns,
shall take the affirmative action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that all allegations of the
complaint not -specifically found to be violations of
the Act be,,and they hereby are, dismissed.
MEMBER KENNEDY, dissenting:
Contrary to my colleagues, (1) I would dismiss the
8(a)(5) allegation because meritorious objections, were
not filed; and (2) I would remand the $(a)(1)
allegations of the complaint for a new hearing because
I do not believe the requirements of due process have
been satisfied.
The, Trial Examiner ruled that the election herein
should be, vacated and set aside even though he
overruled the Petitioner's objections. Since I believe
his overruling of the objections was proper, it
necessarily follows that I, think. he -was in error_ in
setting aside the election.
The sole basis of the objections. filed by the
Petitioner was a three-page letter, dated December 8,
1969, which reads as follows:
We have been a struggling company, that has
tried to make,a success. Now,, with Dart Industries
behind us there should bea wonderful future.
You have an absolute right to know what your
part in this future will be as we see it.
First, the future of the job security of each of
you that does his or her job is good. We are not
going to discharge,a person because they backed a
union.
You have a right to ask what kind of financial
future you are going to have if you stay non-union.
We are, restricted by law as, to what we can tell, you
during a union organizing campaign: We : can
lawfully tell you the things;that, are in existence.
You may choose to share ; in our Profit Sharing
Plan which is known as oneof-the finest programs
for working people. If you stay with the company
and develop, as we are- sure that you will,, you
should have much - more money , in this, plan
compared with any Teamster plan., You get to take
all or part of, this,,money with-you after the, very
first year that you are in the plan. UnderTeamster
plans you would, in most cases, forfeit all that, had
been put into it for you,if you leave while you are
young.
The Teamsters are not very important ,in the
chemical, industry. If you, wish to progress, then in
my `judgment, , you, are better to leave ,them alone
and stay in the chemical industry, whether with us
or with other companies.This is a highly specialized
and skilled industry. This is -an industry which
pays well when plants are running, producing and
profitable. I, I
This last month we made some 1-7,000 pounds of
product. Hopefully, this month we will break that
record and move up to over 25;000 pounds. This
comes as a result of better team work; comes as a
result of your, efforts, comes as the result of
improved equipment and, approaches. This will
mean for the very first time that we,can expect to
break even and perhaps begin! to 'make money.
When a plant, is making money things always
improve as far as morale, as far as friendliness, and
as far as spirit--ofterimorethings improve too.
Our, policy is to pay fairly. By fairly we mean,in
accordance with the'standards of the community
and similarly `situated plaints in the community. I
have been planning a, review of our wage structure.
We should re-examine the relationship, between
the wages of our various groupsof employees, We
should re-examine the fairness ' of our classifica-
PURE CHEM CORP.
tions to see if there need to be more or fewer
classifications. We should take another look at the
time it takes to reach the top rates. We should look
at those top rates.
You have a right to ask whether we would give a
raise if the Teamsters get in. No one can say. I
would expect that you will get just as much non-
union-asyou would union.
There are many reasons why with a good,
modern, soundly managed company the non-union
life .is better. A.few reasons are:
1. You don't have to pay dues.
2. You don't have to attend union meetings.
3. You don't get pulled into strikes over other
peoples' problems. -
4. You don't have to pay initiation fees.
5. Most important, you can often more easily
be a partner with your company if you are non-
union.
You, have a right to ask, "Would the company
take a strike with a union as powerful as the
Teamsters." The Chemical Division over its
lifetime hashadifournegotiations.*,All these unions
are gone from our plants now. There have been
three strikes out of the four negotiations. One of
these was the Teamsters. We did have a seven
week strike with 'them. Do not take this to say that
the company would cause a strike. We would try
not to. A strike would come (if it came) if the union
tried to push us into an area which we regard- as
being unsound for our company. `
We are beginning to put together the kind of
team that can accomplish great things here., Each
and everyone of you is an important, even an
essential, part of the team. I think that you should
give this team a chance to function without any
interference from the outside. I think that you will
find that what we have here with a little bit of
success is something that you can be very proud of.
We still have a long way to go. We still have a lot of
work. We still expect- to make-major mistakes. We
do hope to manage better than we have ever
managed before.
I personally pledge that I will take a deep and
continuing interest in what is happening in the
plant and in, the laboratory By doing this, if I do
my job and you do yours, I am sure it will be better
than if we have the Teamsters.
You have an absolute right to vote your own
wishes. Be sure to vote. Be sure to regard this vote
as one of the most important in your life because
you spend a lot` of time in this plant. Your future
and the plant life here will be affected by this vote.
It can't possibly be'the same here if there is a
union. The union would say that the change would
be for the better. I don't think so.
683
I consider it a personal favor if each and
everyone of you cast your secret ballot on the "no"
side. I believe with all my-heart-that this is really a
vote for yourselves, -a vote . for your . fellow
employees, a vote for your company and a vote for
me.
*We don't count joint ventures.
I agree with the Trial Examiner's conclusion- that
the letter does not support a, finding of either a
promise of benefit or a threat-of-economic detriment,
and that the objections were properly overruled. It
therefore follows, under the Board's policy enunciat-
ed in Irving Air Chute Company, Inc., 149-NLRB 627,
that we are obliged to dismiss the 8(a)(5) allegation of
the complaint. The Board in Irving-- Air Chute at
629-630 stated:
This case falls within our -decision in Bernel
Foam Products Co., Inc., 146 NLRB 1277. We held
in that case that a labor-organization which loses
an election may nevertheless seek bargaining relief
under Section 8(a)(5) of the Act or Section 8(a)(1)
in appropriate circumstances, where- it appears
that the employer has engaged in conduct requir-
ing the election to' be set.aside. We will not grant
such relief, however, unless the election be -set
aside upon, meritorious objections filed in the
representation case . Were the election not set aside
on the basis of objections in the present representation
case, we would not now direct a bargaining order even
though the, unfair labor- practice phase of this
proceeding itself established the employer's interfer-
ence with the election. [Emphasis supplied.]
My colleagues hold that the Board may rely on
evidence disclosed by the postelection investigation,
"and that such evidence alone may be used to set
aside an election." This holding is at odds with the
Board's pronouncement in IrvingAir Chute, supra.
The majority in the instant case is holding that an
election may be set aside on the basis of allegations in
a complaint which bear no relation to the objections
filed. In this connection it is noted that the only
specific 8(a)(1) violation alleged in the original charge,
which WAS filed almost 2 months after the election,
was the December 8, 1969, letter quoted above.
Nor can I agree with my colleagues that the Trial
Examiner's rulings are free from prejudicial error.
General Counsel amended the complaint on the day
of the hearing to add seven, new -paragraphs of
violation of Section 8(a)(1). These amendments
represented a substantial enlargement of the com-
plaint since the complaint, prior to the day, of the
hearing, was limited to three 8(a)(1) allegations, one of
which was the December 8 letter quoted above.` No
prior notice was given to the- Respondent as to two of
the seven amendments, and only 3 workdays' notice
was given the Respondent of the other five amend-
ments . The Trial Examiner denied Respondent's
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion fora 1-month continuance to prepare to meet
the amendments ` to the complaint , but offered to
postpone the hearing-until the . beginning' of the
following week . Respondent's counsel declined the 1-
week , postponement because of prior commitments:
The hearing then proceeded over the strenuous
objections of Respondent's counsel . The Board's
Rules . and Regulations - provide .that a respondent is
entitled- to 10, days from the service of a complaint in
which to answer and that hearing shall,be held not less
than 10 days after the service of a complaint (Sections
102.15 and 102.20).8 In my view, such hearing, which,
was clearly, contrary, to the Board's published Rules
and, Regulations, ;did not meet the requirements of
due process. See Russell-Newman Mfg. Co., -Inc. v.
N.LR.B., 370 F.2d 980 (C.A. 5, 1966), denying
enforcement of ,153 NLRB 1312.,
s My colleagues recognize that insofar as amendments (I) and (J) to the
complaint are concerned the circumstances under which Respondent was
compelled to proceed to hearing , were so inequitable that they do not
predicate the bargaining order ,herein upon such amendments and the
testimony in support thereof. In my opinion, the entire course of conduct
dealing with the amendments was so permeated with lack of due process
and fair play that no violation should be premised on any of them,
particularly since it is'obvious that Respondent 's counsel was not engaging
in dilatory tactics and the General Counsel offered no-opposition to the
continuance.
The majority-suggests that the failure of the Trial Examiner to give the
Respondent the 10 days'- notice, as required by the Board's Rules, was
excused because Respondent did not ' request a continuance at `the
conclusion of the General Counsel's case to prepare its defense to the
extensive amendments to the complaint . Such 's suggestion ignores the
basic proposition that a respondent is entitled to make a full investigation
of the facts and prepare a defense before being required to conduct
"eleventh hour" cross-examination of witnesses called by the General
Counsel . See in this connection the dissenting opinion of Chairman Miller
in Richard L Cannady and Jane' Cannady d/bla Bob White Target
Company, Division ,of CannadySupplly Ca, 189 NLRB No. 128.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in San Francisco, California, on June 9
and 10, 1910, on the complaint of General Counsel, as,
amended,, and the answer,' as amended, of Pure Chem
Corporation, herein called the Respondent.' The complaint
alleges violations of Section '8(aX5) and (1) and 'Section 2(6)
and (7) of the Labor Management Relations Act, 1947, as
amended , 61 Stat. 136, herein called the Act-Resolution of
the objections;' filed by petitioner, is set forth infra The
parties waived oral argument and briefs filed by the
General-=Counsel and Respondent have been carefully
considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
' A charge was filed on February 10, 1970 , and an amended charge was
filed on May 8, 1970. The complaint was issued on March 24,, 1970, and
amended at the outset of the hearing . Pursuant to a stipulation for
certification upon consent election, approved by the Regional Director for
Region 20, on November 10, 1969, an election was conducted on
December 10 and 11, 1969. On December 15, Petitioner filed timely
FINDINGS AND, CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation, with a place of
business located at Richmond , California,- where it is
engaged in the manufacture of chemicals . During the year
immediately preceding the issuance of the complaint, a
representative period, Respondentsold_and shipped goods
and materials valued in excess of $50,000 directly to
customers located outside the State of California,.
The complaint alleges, the answer admits, and _I find that
Respondent is, and at all times material herein has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
U. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers & Helpers Local No. 315,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the complaint and answer,
and litigated at the hearing, are whether , the Respondent:
(1) engaged in conduct constituting interference, restraint,
and coercion, thus violative of Section 8(aXl) of the Act, by
(a) installing vending machines , dining and ,other conven-
ience facilities for its employees , in October or November
1969, or safety equipment , in November 1969, in an effort
to induce its employees to abandon- their support of 'the
Union, or (b) by President Haag, on or about December 8,
1969, impliedly promising employees raises, to induce them
to abandon their support of the Union, or _ (e) by Ike
McCoy, public, relations representative , in late November
and early December 1969, engaging in interrogation, or, (d)
by McCoy, in November or December 1969 , making
promises to improve an employee's working conditions and
to provide economic benefits, or (e) by McCoy and Frank
Callaghan, plant manager, in late November or early
December 1969, engaging in interrogation , or (f) by
McCoy, in late November or early December 1969,
advising employees they would not participate' in,-Respon-
dent's profit-sharing plan if the Union was selected as their
collective-bargaining representative, or (g) by Dr. Meyer
Wiener, vice president, in October , or November 1969,
advising an employee' that Respo`ndentwould close its plant
and move to' Texas, if the Union won the election, or (h)by
Wiener, in November or December 1969, advising, an
employee that she would not participate in Respondent's
profit-sharing plan if the Union was selected as the
objections to conduct affecting the results of the election ..On March 24,
1970, the Regional Director found that Petitioners objections , alleged to be
grounds for setting aside the election , encompass ' conduct allegedly
violative - of the Act and included in the 'specifications of 'the complaint,
issued on the same date. The Regional Director ordered a consolidation of
the cases, for hearing and resolution of the issues.
PURE CHEM CORP. 685
collective-bargaining representative of Respondent's
employees; 2 or (2) by engaging in unfair labor practices in
contravention of the provision of Section 8(aX5) and (1) of
the Act, by failing and refusing to bargain collectively with
the Union as the exclusive collective-bargaining representa-
tive -of -Respondent's employees, in an appropriate unit,
with respect to rates of pay, wages, hours of employment,
and, other terms and conditions of employment, as more
fully. described in the complaint, commencing October 10,
1969,- and at all times thereafter. The objections to conduct
affecting the results of the election are confined to a letter,
dated December 6,-1969, signed by President Haag and sent
to each employee in the unit, which it is asserted "by
implication" promises benefits to the employees in the
event of a union defeat and threatens economic detriment
to,the employees in the event of a union victory.
Respondent denies the commission of any unfair labor
practice.
Supervisory Personnel
The complaint, as -amended, alleges, the answer, as
amended, admits, and I find- that Arthur T. Haag,
president, Dr. Meyer Wiener,3 vice president, Frank
Callaghan," plant manager, and IkesMcCoy, public relations
representative, , at all times material herein, were, each,
agents of Respondent, acting on its' behalf within the
meaning of Section 2(13) of the Act, and that those named,
except McCoy, were supervisors, within the meaning of
Section 2(11) of the Act.4
Background
The facts set forth under this subsection are undisputed.
There has been no prior history of collective-bargaining
between the Respondent and the Union.
A day or two prior to October 9,1969, James Foster and
DavidI McQueen, employees of Respondent, obtained
authorization card ^ forms from' Michael- J. Corniola,
business representative of the Union. Having obtained the
signatures of 15 employees, of a total of 16 employees in the
unit, Foster and McQueen returned-the signed cards to
Corniola on October 9.5 The cards contain the following
legend:
I hereby authorize TeamstersLocal No. 315 IBTC W&H
of A under the-National Labor Relations Act to be my
exclusive bargaining representative in the negotiations
forbetter wages and working conditions.
On Friday, October 10, 1969, Corniola, accompanied by
2 An allegation, in the amendment to the complaint , that David Boring,
shift foreman, in November or December 1969, told an employee that
Respondent would close its plant and move to Texas if the Union won the
election was withdrawn,
3 Incorrectly Spelled Werner in the complaint and corrected- by
amendment.
4 In view of the withdrawal of the allegations of the complaint, as
amended, relating to Shift Foreman David Boring, I find it unnecessary to
determine if'-Boring was , either an agent of Respondent or a supervisor
within the meaning , of the Act.
6 It appears that there are four shift foremen , identified as Bob Mall,
Willis Griffith, Guy Jones, and David Boring, whom Repondent contends
should, be included in the unit . The assertion of Foster, union observer at
the election, that the foreman named did not vote is undisputed . I find it
unnecessary to resolve the question of whether the shift foremen are in fact
Joe Treas and Joe Davis, also business representatives of
the Union, went to Respondent's plant. Being advised that
President Haag was absent, they met with Vice -President
Meyer Wiener. Corniola advised Wiener that he and his
companions represented the Union, that the Union
represented a majority of the people working for Respon-
dent, and that they had authorization cards from a majority
of the employees and desired to negotiate a contract.
Corniola then laid the cards out, one at a time, on a table,
and read aloud the name appearing on each card. As-each
name- was` announced, Wiener- acknowledged that each
individual named was in fact employed by Respondent.
Upon the conclusion of the reading of 15 names, "Wiener
noted the fact that one individual had not been named.
Wiener acknowledged 'that all of those named were
employed at the time of this- meeting. When Corniola
renewed his request for the setting of an appropriate date to
commence negotiations,' Wiener advised that he did not
have authority, and that he would advise President Haag,
who was not available.
Subsequently, on - Monday, October 13, Corniola, by
telephone, advised President Haag of the above events, and
of the Union's representation of the majority of the
employees. Haag advised Corniola that Haag could not
authorize negotiations, or sit down and negotiate, but that
Respondent's attorney, Jack Hall, was, -then - present in
Haag's office. Corniola then adv5-64 Hall that the Union
represented the employees, that Wiener had been afforded
an opportunity to inspect the authorization cards,-and that
Cormola -desired to sit down and negotiate a collective-
bargaining agreement . Hall responded by suggesting that
the Union file a petition for election .6
On October 17, 1969, the Union filed a petition for
election, Case 20-RC-9035. Subsequently, a stipulation for
certification upon consent election was approved -by the
Regional Director, on November 10, 1969, providing for a
split election on December 10 and- 11, 1969.-A tally of
ballots reflects 13 eligible voters, of whom 4 cast ballots in
favor of the Petitioner and 8 cast ballots in opposition. On-
December 15, Petitioner filed timely objections to conduct
affecting the results of the election.
Thereafter, on March 25, 1970, the employees went on
strike.? Subsequently, on May 5, 1970, the Union made an
unconditional offer, on behalf of the employees, to
terminate the strike and return to work. On May 8, the
Respondent agreed to reemploy the employees; as needed,
and four were recalled prior to the hearing herein. It is
undisputed that no replacements were employed during the
period of the strike, or prior to May 8. -
supervisory employees, since the cards were obtained from a majority of
employees whether the unit was 16 or-20.
§ Wiener, appearing as witness for Respondent, did not dispute the
recitation of Corniola, relative to the meeting of October 10. He did
estimate the number of authorization cards shown to him to have been
"about a dozen."
While Haag appeared as a witness he was not questioned relative to his
conversation with Corniola , and did not dispute the assertions of the union
representative
Hall appeared as cocounsel, but not as a witness.
9 It is undisputed that at the time of the strike there were still 16
employees in the unit . None worked during the strike. However, one quit a
few days after the commencement of , the strike, one was hospitalized at the
time of the strike, and one did not report for work but did not engage in
the picket line activities . The remaining 13 did picket. - -
686 DECISIONS OF NATIONAL=LABOR RELATIONS BOARD
Interference, Restraint, and Coercion
Convenience Facilities- Safety Equipment
.,It- is alleged- that, in October' or November 1969,
Respondent installed vending , machines, dining and other
convenience„._ facilities, and _ that, in the latter month,
Respondent -installed safety, equipment, all to induce
employees to abandon-their support of the Union.
-, Foster was initially employed by Respondent in-August
1969. At the time. of the hearing herein, Foster was still an
employee; but had not been recalled after the conclusion of
the -strike and was in. layoff status. Foster described his
duties, when employed, as a production worker and also as
a shipping ,and receiving clerk., However, it Js obscure
whether Foster was in these classifications simultaneously
or at separate periods of time.s, ,
Foster asserted that the employees had complained about
a lack of specific safety equipment. He asserted that he had
called attention to specific hazards and unsafe conditions,
at safety committee, meetings, and ; that President Haag,
Vice President Wiener, and, Plant, Manager Callaghan, or
one of them, would advise that the budget of that particular
month was insufficient to accomodate an expenditure for
safety equipments
-Foster asserted, inadequate ventilation as among the
objectionable conditions atthe plant, particularly by reason
of ,the_, presence of hydrochloric acid gas fumes. Foster
described employee dissatisfaction with working conditions
and wages as the underlying reason he sought the aid of the
Union.
I have found, supra that on Friday, October 10, the
Union displayed authorization cards, signed by all but one
employee, and,requested recognition and bargaining:- On
Monday,, October 13, President Haag advised the Union
that hey did not have authority to bargain, and Attorney
Hall advised, the Union to file a petition for- election,
McCoy appeared at the plant, as a representative of Dart
Industries, on Wednesday; October 15.10
Foster credibly related, he was taking a sample from a
"ball mill," on October 15,,when McCoy approached and
inquired about the nature of Foster's activity. Foster
asserted that,,in explaining how he obtained the sample to
McCoy, he discovered and pointed out a-bad valve. Foster
explained what might have happened, and what could be
done to prevent such an ocurrence, by the installation of a
new quick disconnect unit. Foster then proceeded to
another ball mill and again the flask fell. off. In order to
recharge the second mill,; it was necessary to remove bolts
which held it shut. Foster found the bolts were rusted and it
was necessary to obtain the welder to cut them off. Foster
asserted that the job should have required 2 minutes and
actually required 4 hours, partially because new bolts were
required and were-, not available. Foster 'responded to
McCoy's inquiries relative to other equipment, explaining
' 8 Foster described Respondent's operation, prior to the March 25 strike,
as a 7-day, 24-hour continuous operation , with two production operators'
on each of three shifts and two relief operators as shifts rotated . It appears
that there were -'two maintenance employees on the first shift , Belfils and
Zampa. There were also several laboratory technicians , who worked in the
laboratory d redly 'under the supervision of Dr . Meyer Wibnerr Other
classifications, if'anỳ, are obscure.
9 In finding credible this , recitation of Foster, I am' not unmindful that
the function of each. Foster asserted that, upon learning.of
McCoy's connection with , Dart Industries, her invited
McCoy to his home for dinner, the same evening , to discuss
improvement of safety, increase in -production, and
bringing up the morale of the workers.
Foster asserted than David McQueen was present during
his 'conversation with McCoy,, ' which commenced' , at
approximately 6 p.m., on October, ,15. Among the safety
items Foster called to the attention of McCoy were :?,that
welding cables were frayed; or poorly patched, , and'that
welders were forced to weld- while-these 'cords were in
water; that guards' were needed over moving chain-and
high pressures hoses to protect employees; 'that handholds
were needed on tall vertical tanks; that the plant was-dirty
and' dark and the lighting was poor; that when all of the
machinery was operating, in the' winter' time, there was-a
high decibel rating, requiring the wearing of oil-filter muffs
to protect eardrums; and the chemical content of plant air
was sufficiently high to cause deterioration of chrome finish
on wrenches, within a short number Of days. Foster also
advised McCoy the vessels in the plant would vent off a
fume, which would condense on the ceiling, form a. liquid
acid, and fall to the floor. Foster indicated"that he e did not
enjoy sitting at a desk covered with liquid acid, wearing ear
muffs and eating lunch. He advised McCoy that he thought
it might be nice if they had a lunchroom which was quiet
and clean." Foster called attention to;the fact that there
was only one safety shower, and it ,was located in the
laboratory. Foster described the plant as very large ,'with
numerous pipes and equipment which prevented an
employee from running rapidly from one building to
another, which would be essential in the event of a spill, to
reach the safety shower.
Foster asserted that McCoymade copious'notes and that
he indicated that he had been a longtime production worker
and he was sympathetic. ,McCoy advised Foster, that
McCoy had been a longtime member of certain unions, that
unions were very good,but McCoy was desirous of learning
what Dart Industries could do to keep the Union out of
Respondent's, plant because it was- much easier. to_ deal
directly with the employees without the Union being a
middleman. McCoy explained that, although he saw
nothing really wrong with the Union, he would prefer to
keep them out of the plant. Foster asserted he,responded
that he could not speak for-the other employees but, after
lengthy discussions with them, Foster understood there had
been 3 years of brokenpromises about safety equipment, or
other items, which were promised and never arrived, and
there was nothing Respondent could do to persuade. him
not to vote for the Union. Foster asserted at the close of the
conversation McCoy provided Foster' with' a business card
which contained McCoy's home address and telephone.
McCoy advised Foster that he could call'- McCoy ' if
anything arose at the plant that Foster could not cope with
Callaghan asserted he commenced - his employment' on approxunately
September 3 or 4, but did not assume ' full responsibility until October' 1.
1o Plant Manager Callaghan asserted that McCoy was present, at ,the
plant, as a representative of Dart Industries. Callaghan described McCoy's
duties 'as increasing the plant capacity.
11 Foster asserted he also ` complained about lack of sufficient tools.
However, the matters litigattA are confined to safety equipment and
convenience 'facilities.
PURE CHEM CORP.
or which was not dealt with by management, in which event
McCoy would come directly to the plant and treat with the
problem.
Foster asserted that within 48 hours after his meeting
with McCoy, a, number of changes commenced. Foster
described changes which occurred between October 17 and
a date just prior .to the election, which was held on
December 10 and 11, as including: a small trailer arrived
for the employees to- use as a lunchroom; vending
machines , including- a, cigarette machine, a candy bar
dispensing machine, and a soda pop machine were installed
in the trailer; a drinking water machine with a small
refrigerator unit was placed in the plant;12 safety-showers,
which had been, purchased-previously but never installed,
were , installed ; first aid in the -form of bum and acid
neutralizer and burn spray were provided; as was ointment
for the welding department.13 A breathing air system
containing bottled breathing air, , connected to _a series of
long hoses , permitting employees to put on a mask and
work in a contaminated area were provided: larger gloves
and face shields,, as added protection from bums were
provided; some guards were placed around equipment,
including chains., and hydraulic high, pressure hoses;
lighting was improved by the installation of fluorescent
lights.
Foster tiacknowledged, the safety showers had been
present, in crates,",for an-indefinite period, and were there
when Foster was,first,employed. Foster asserted-that when
inquiry was made, relative to the installation of them, at a
safety meeting, the employees were advised the budget was
not sufficient for such an expenditure.
Foster asserted, that,, thereafter, he would have frequent
conversations with McCoy as to how Foster. liked a
particular improvement, such as: "Isn't it nice to have a
pop machine," or the new lights are very nice, the new
paint will look nice on this equipment." Foster asserted that
usually at the end of these discussions he would be asked
his opinion of `how he thought the election would go, and
whether it would go for the Company or the Union. Foster
asserted that McCoy would shake his head and say he was
not too confident either way, and Foster replied that,he
could not answer for the other workers and had no idea
what the outcome of the election would be.14
Willis L. Belfils had been a'maintenance man and welder
at Respondent's plant for approximately 4 years at the time
he testified, and was employed at that time. Belfils asserted
that `iris employment commenced when the plant opened
and that he had built all of the' contents. His duties included
repair of all machinery, the construction of 'tanks, and
installation of, pipes, machinery; and other equipment.
Belfils was among those who went on strike on March 25.
He returned to work on Monday, May 11, 1970. Belfils
12 Foster described the prior condition , when an employee desired a
drink of water, as a single sink, similar to a household sink, in one corner
of the building, used to clean flasks and wash out brushes. The enamel had
been removed by acid and the pipes were corroded.
11 Foster asserted the previous condition was:
The only medication in the plant at that time was band-aids, and
another small jar of bum ointment , which was upstairs in Willis
Griffiths ' desk. After 5:30 p.m. that was locked up.
14 McCoy did not appear as a witness . No explanation was made by
687
asserted he had been an observer in the election, on behalf
of the Company. -
Belfils was a member of the safety committee from May
1969 until early January 1970. Belfils credibly related that
two meetings of the safety committee were scheduled- for
each month. One such meeting was to be confined to
members of the committee, while the second meeting would
involve all of the personnel for-discussion.of safety matters.
Belfils asserted that by reason of the absence of manage-
ment representatives , or for other reasons, numerous
meetings were not held, and in fact such meetings were held
only once every-, other- month. Belfils identified Haag,
Griffith, and later, Callaghan, as the management repre-
sentatives on the committee. The committee did tour' the
plant to-identify existing hazards=which needed correction.
Among the items enumerated by Belfils were: faulty
wiring ; absence of fire extinguishers ; . broken ladders;
absence of safety 'showers; frayed welding cords; and
absence of insulated boots where welding was done in
water. Belfils asserted the main response of management,
during' the early period, preceeding the-advent of the
Union, would include: insufficient time to, handle 'the
matter; busy with other things requiring a postponement of
the particular item; and financial inability to attend to it at
that time.
Belfils asserted that he first met McCoy in late October or
early November 1969, in the plant. At that time McCoy
advised Belfils that McCoy was a representative of Dart
Industries. McCoy explained that he was interested in the
plant, and wanted to know how the plant functioned and
how Belfils liked working there. Belfils asserted, he had
numerous conversations with McCoy in the plant; explain-
ing he would have a conversation every day that McCoy
was there. Belfils credibly related that, in December, "close
to the election," McCoy advised Belfils and Zampa that he
(McCoy) hoped the Union would not win, because, Dart
has a policy that they do not recognize Unions in their
system, and that the Company-would, once it got on its feet,
do better, and that they would try to make it to where the
employees would not want a Union, and would not need
one, by such things as better wages, better-conditions to
work under, and a better safety program.
Belfils asserted he complained about the lack of insulated
boots to permit him to do welding while standing in water,
without danger. He related he was given a charge card to
procure them from a local store but not before the advent
of the Union.15 - . .
While, as related by Griffith, -a request for "quotations,"
for face mask and breathing` equipment, was made, by
Respondent, on May 22, 1968,no appropriation appears to
have been made for it until July 15,-1969 some 15 months
later.16
Griffith acknowledged the plant lighting was improved
Respondent as to why McCoy was not called While Callaghan , appeared
he did not dispute the above recitation of Foster. Callaghan acknowledged
McCoy was at the plant approximately 2 days each week during the period
preceding the election. - -
Y5 Foreman Griffith described these boots as `Fheavy - duty- rubber
boots," and explained the delay in purchase as being due to the necessity
of Belfils and Zampa going to the store for a fitting. Griffith , who was
purchasing agent for Respondent, estimated the cost as $15 a pair.
16 The safety committee report to plant personnel , of February 27, 1969,
(Continued)
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between July and November , 1969 , explaining the electrical
contractor did the work as men were available.
Griffith acknowledged a first aid kit in the laboratory and
some items in his desk, such as burn spray, ointment, and
bandaids , constituted everything available, in the first aid
category,-prior to the last quarter of 1969. He related-that
out of the appropriation they did purchase first aid
equipment during the-last quarter of 1969.
Griffith asserted Respondent ordered the trailer, used as
a lunchroom, about the last week of September , under a
lease agreement.17 While Griffith produced copies of
requests for quotations, and-some purchase orders, there is
no document relating to the trailer. Respondent does not
contend that any employee was advised that Respondent
was, securing a lunchroom area prior to the arrival of the
trailer. According to Griffith the trailer arrived in late
October. Griffith, asserted that, in late July 1969, he
requested employees to indicate preferences as to soft drink
and cigarette machines., He acknowledged these were not
installed, in the, trailer, until, mid-October. Griffith
estimated it required ,about 2 weeks to obtain , the water
cooler, which was ordered in mid-October . The first aid kit
and chemical burn , water were ordered on November 30,
1969.
Letters to Employees-December 6, 1969
Objection to Conduct of Respondent
It .pis- undisputed that on Saturday, December 6, 1969,
President Haag sent a three-page letter to each employee in
the unit. These letters were received on Monday, December
8. The -election was held on December 10, from 2:45 to 3:15
P.m.,, and on December 11, from 6:45 to 7:15 a.m. The
letter is the sole basis for objections filed by the Union. The
asserted reason for the objections is that the letter "by
implication promises benefits to the employees in the event
of a union defeat and threatens economic detriment to the
employees inthe event of a union victory." The letter is also
the basis of an allegation in the complaint that in it
Respondent inipliedly promised raises to employees, to
induce them -to abandon their support of the Union.
The paragraphs of the letter which General Counsel
identified as containing promises are the following:
This last month we made some 17,000 pounds of
product. Hopefully, this month we will break that
record and move up to over 25,000 pounds. This comes
as a result of better team work , comes as a result of your
efforts, comes as , a result of improved equipment and
approaches. This will mean for the very first time that
we can expect to break even and perhaps begin to make
money. When a plant is making money things always
improve as far as morale, as far as friendliness, and as
far as spirit-often other things improve too.
Our policy is to pay fairly. By fairly we mean in
accordance with the standards of the community and
similarly situated plants in the community. I have been
planning a review of our wage structure. We should re-
examine the relationship between the wages of our
various groups of employees. We should re-examine the
item 5, recites: Two full face masks with 50' hose each and 3 cyls air each
bank-on 'order. Griffith explained "on order"' meant awaiting essential
fairness of our, classifications to see if there need to be
more or fewer classifications. We should take another
look at the time it takes to reach the top rates. We
should look at those top rates.
You have a right to ask whether we would give a raise
if the Teamsters get in. ` No one can say. I would expect
that you will get just as much non-union as you would
union.
Neither General Counsel nor Charging' Party specified
any portion of the letter as constituting-a threat.
Foster related that he had a,conversation with Haag, With
Wiener present, at the Lucky Lanes Bowling Alley, on
approximately December 9, during which Haag-stated that
he could not make any comment positive or negative about
any wages as it would be illegal. Foster asserted 'he had
another conversation with Haag, the same day ' in the
laboratory, with Fernades, Edmunds, and-Nora Johnson
present. However, Foster also placed the situs as the trailer
office. During this conversation'-, accordingto Foster, Haag
said he had done a survey of thelocalarea,thcommunity,
the wages earned in that area, and conditions, etcetera, and
that the letter explained those,, and` that= he would consider
it, as he said, I believe in the last paragraph of his letter, a
personal favor to vote for the Company, you know, if-we
were to vote for the Company and not for the Union. Asked
specifically what, if anything, Haag said about''a pay raise
Foster responded: "The survey was done, and when they
had the results things-would definitely-improve." Thereaf-
ter, Foster acknowledged that Haag did not promise a wage
increase.
Haag asserted that in this particular' conversation, in the
laboratory, he, advised the employees of the' results of a
survey of a local plant which indicated that Respondent's
wage rates were not out of ' line' ,with the, rates at- that
particular plant. Haag denied making any specific promises
of improvements in the wage structure. Haag acknowl-
edged following the theme of the letter'' that if the
Company's operation met with success and prosperity
many things would improve.
I find this recitation of Foster implausible. If is unlikely
that Haag, obviously advised that he could not promise pay
increases, and having advised Foster that he could not
comment "positive or negative" as it would be `unlawful,
would, the same day advise him "things would definitely
improve." Accordingly, to the extent the testimony of Haag
conflicts with the testimony of Foster, relative to the
promise of a pay raise, I credit Haag.
Section 8(c) provides that the expressing of any views,
argument, or opinion shall, not constitute or be evidence of
any unfair labor practice if such expression contains no
threat of reprisal or force or promise of,benefit.
I am unable to find any language in the December,6 letter
which would support a finding of either a ,promise, by
implication, or a threat of economic detriment. According-
ly, I will recommend dismissal of,,, the allegations. of
paragraph 6(c) of the complaint and overruling of A he
Union's; objection.
appropriations, for safety equipment
17 However, the lease agreement is'not in evidence.
PURE CHEM CORP. 689
McCoy-Interrogation
Nora Johnson was initially hired by Respondent in June
1967, and was employed at the time of her testimony. She is
a laboratory technician . Dr. Wiener is her immediate
supervisor. Johnson related that either President Haag or
Vice President Wiener introduced her to McCoy in October
1969, indentifying 'McCoy as a representative of Dart
Industries.
Johnson credibly related a conversation she had with
McCoy about 2 weeks prior to the election. McCoy
inquired : "How do you think things are going to go [in the
election ], Nora?" Johnson responded , that she thought it
would go for the Company. McCoy then stated , "Well, I
wish I could be as sure as you are." Johnson asserted that
she responded that she did not know what McCoy was
worrying about. Johnson acknowledged having previously
advised Wiener she intended to cast her vote for the
Company.
McCoy then inquired , "How about the girls in the lab,
how about Ruby?" Johnson asserted she responded that
Ruby would votehfor , the Company. McCoy then inquired,
"How about Suzie?" Johnson asserted that she responded
that, definitely, Suzie would vote for the Company. McCoy
then inquired as to how Zampa would vote, and Johnson
responded she was pretty certain he would vote for the
Company. McCoy then inquired as to how Al Hill would
vote and Johnson-responded she did not know.
I have found, supra, that on October 15 McCoy advised
Foster, in the presence of McQueen, that McCoy was
desirous of learning ' what could be done to keep the Union
out of Respondent's plant because it was much easier to
deal directly with the employees without the Union being
present.
I have also ' found, supra that as each improvement,
previously suggested to- McCoy by Foster , was installed
McCoy 'would inquire of Foster as to how he liked the
particular ' improvement. These inquiries were followed by
McCoy's inquiry of Foster 's opnuon as to employee
sentiment relative to the election . Foster related that he
responded to each of several such inquiries by advising
McCoy he could not answer for the employees.
McCoy-Promises of Benefits
I have found, supra - that McCoy advised Belfils and
Zampa, just prior to the election , that once the Company
got on its feet it would do better and try to make it "to
where the employees would not want a union in there" and
would not need one, by such things as better wages, better
conditions, and a better safety program. Belfils related that
McCoy also advised that he (McCoy) would obtain the
setting up of a special fund for Belfils, so that Belfils could
obtain the proper equipment to do his job properly . Belfils
asserted that McCoy also advised that he (McCoy) would
putBelfiis in charge of maintenance and construction at the
plant, that the plant had a good promise of growing, and
that they would build a plant next door and enlarge. Belfils
'a Callaghan was unable to recall any conversation in his office in
which Belfils and McCoy participated relating to any employee being
asked how the employee would vote . Callaghan asserted that he had been
briefed earlier, after the Union appeared , that they were not to discuss the
also asserted that McCoy advised Belffils and Zampa that
he would take them to Los Angeles, and to some of the
other plants owned by Dart Industries, so they could we
how maintenance is run in a large plant.
Johnson asserte& that in a second or third conversation
she had with McCoy, inferentially in October or Novem-
ber, McCoy asked her, "What was causing the trouble?"
She asserted that she responded by advising him that it was
wages agd safety, ' that these were the main problems.
McCoy advised her that he had been through many strikes,
that usually people find out that the company could do as
well for them, if not better, than unions could do for them,
and that, if the company was given a chance, they would
come through. Johnson related that Vice President Wiener
had assured her that McCoy had influence ' with Dart
Industries . Thereafter, McCoy advised Johnson that
Wiener had talked to him about wages. McCoy asserted
that the laboratory people were very much underpaid, and
that this fact had been brought to the attention of Dart
Industries.
I find the last assertion of McCoy to be an implied
promise of increased wages.
McCoy and Callaghan-Interrogation
Belfils credibly related that he had several conversations
with plant manager Callaghan, in Callaghan 's office, with
McCoy present, and with McCoy, in the plant, immediately
prior to the election, when he was asked by each of them
how he thought the election was going to go . Belfils asserted
that he was advised that they knew how four votes were
going to be cast but they were interested in how other
people were going to vote and inquired whether Belfils
knew. Belfils asserted that McCoy advised him that McCoy
could not tell him how to vote, that they were not doing
that, but that they didn't want the Union to get in if it was
at all possible to prevent it .18 -
The McCoy Threat Relative to Profit-Sharing
Program
Alvin Hill was initially employed by Respondent on
September 3, 1969, in shipping and receiving . He was a
relief operator at the time of the strike, , on March 25, in
which he participated. At the time of his testimony, he was
in layoff status.
Haag introduced Hill to McCoy , prior to the election,
while Haag was giving McCoy a tour of the plan. In early
December, prior to the election , McCoy advised Hill that
Respondent had a profit-sharing plan whereby, as the
Company grew, the profit-sharing grew , and, if an
employee was fired or quit, he would get his share of the
money in the profit-sharing plan . McCoy also advised that,
if the shop became union, it would not be possible for the
employee to get profit-sharing.
Belfils related that in a conversation, in December, prior
to the election McCoy advised Belfiils and Zampa that, if
the Union won the election , there would not be any profit-
union situation with employees. Callaghan denied ever hearing McCoy
discuss the Union with any employees . To the extent Callaghan's totftogy
is at variance with that of Belfils , i credit Belfils.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sharing plan in the Company ; that the existing profit-
sharing plan would no longer , exist. Belfils asserted , that at
the, time Dart Industries took over Respondent's plant, in
May 1969, Dart Industries sent a representative to the plant
who explained how, the profit-sharing plan worked, -and
gave each employee a booklet relative to it.19
Under a heading of "Who Is Eligible to Participate" the
following: qualification appears, "Is an executive, adminis-
trative, professional, sales, clerical or other employee and is
not covered by a collective-bargaining agreement ." After
the qualification , reference is made to a, provision entitled
"Effect of Collective-Bargaining Agreement," in which it is
noted that benefits of employees represented by a majority
collective-bargaining agent are determined by negotiation.
The validity of the plan itself was not litigated.
Wiener--Threat to Close Plant
Nora Johnson credibly related that, in October, after the
Union obtained authorization cards, she went to Wiener's
office to advise him that she had signed a union card. She
explained to Wiener that she had signed the card because of
the existing wages. Wiener responded, "Well, you know,
Nora, this is a poor company. We are in the red, we have
been in the red, and are still in the red, and this union
coming in, is all they're going to need, that probably they'll
move it [the plant] to Odessa, Texas, because Dart Industry
is dead set against unions." 20
Wiener; Threat Relative to Profit-Sharing
Johnson related she had a conversation with Wiener, in
the laboratory, in October, after the advent of the Union, in
which Wiener advised her: "Nora, I want to know if you
are aware that if the Union came in, you would no longer
have, profit-sharing, because this is against Dart's policy."
Johnson asserted that she was aware of that because Zampa
had so advised her, Johnson , on cross-examination , denied
that Wiener explained that, if the Union won the election,
everything, including profit-sharing, would be subject to
negotiation.21
Refusal To Bargain
Appropriate' Unit and the Union's Majority Status
It is undisputed that the Regional Director, in Case
0-RC--9035, on November 10, 1969, approved a stipula-
tion for certification upon consent election which provided,
inter alga, that specified employees of Respondent consti-
ts The profit-slrarhi plan is identified as "Profit-Sharing Retirement
Trust." It was initially under the unme of Rexall Drug, which was later
changed to Dart Industries. It is undisputcd 'thet the profit-sharing plan
was a plaui of the patent corporation and was applied to the employees at
'Respondent's plant.
I* Wiener identified his capacity as technical director, vice president,
and a chemist. He identified his responsibilities as technical catalyst
evaluation, catalyst development, and certain managerial responsibilities.
wiener acknowledged having a conversation with Johnson relative to the
possibility of the plant being moved to Texas. wieners version was: "I
brought up the Odessa matter, because there was a rumor making the
rounds of the employees on this, and I said, to the best of my recollection,
that if there was any truth to this matter, that in my opinion, the Company
would be more likely to go through -with the move if a union came in. That
was in my opinion, that's the way I expressed it."
tare a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act. I
find accordingly. The unit is:
All production and maintenance employees, including
laboratory technicians, employed by the employer at its
plant located at Richmond, California,excluding office
clerical employees, salesmen, professional employees,
guards and supervisors as defined in the Act.
On October 10 and 13 , 1969, there were 16 employees in
the unit described.22 It is undisputed that on both dates the
Union , had in its possession unambiguous authorization
cards designating the Union as representative, for the
purpose of collective bargaining , in the unit described
above, signed by 15 of the employees in said unit.
I have found, supra, under the section entitled
"Backgound," that on Friday, October 10, Corniola, union
representative, displayed the authorization .cards to Vice
President Wiener, at Respondent's plant, and requested
recognition and bargaining. Wiener acknowledged, the
employee status of each card signer . Wiener responded that
he did not have authority to grant the request _and-suggested
that Corniola get in touch with President = Haag. I have
found that, on Monday, October" 13, Corniola, by
telephone, requested President Haag to recognize the
Union and to schedule a time for negotiations ; advising
Haag of the events of the prior Friday. Haag responded
that he could not authorize negotiations . No recognition
has since been accorded and no negotiations have ensued.-
Concluding Findings
Interference,_ Restraint, and Coercion
Prior to the Blue Flash, case,23 all interrogation relative to
union membership , activities, and desires, was held to be
per se unlawful. -In Blue Flash the Board found legitimate
reasons for inquiry, when conducted with appropriate
safeguards . The Board held that the test -is -whether, under
all the circumstances, interrogation reasonably tends to
restrain or interfere with the employees in the exercise of
rights guaranteed by the Act:
The Board further elaborated in its decision in Johnnie's
Poultry case 24 in which the Board stated that the purpose
which the Board and courts have held legitimate
(permitting interrogation) are of two types : clarification of
a Union's claim to majority status to, determine whether
recognition should be extended, and investigation of facts
concerning issues raised in a complaint; where such
To the extent the testimony of wiener is at variance with , that of
Johnson, I credit Johnson.
2a Wiener acknowledged having a conversation in the laboratory
relative to proffit-sharing, but was uncertain whether it was with Johnson or
another employee, identified as Chris Edmunds. Wiener asserted:
"Approximately, that based on what I had heard from other management
people, I said that the fringe benefits that existed under Dart would not
automatically carry over if the Union won, but that these would be open
for negotiation." -
To the extent the testimony of wiener is at variance with that of
Johnson, I credit Johnson,
22 The result would not vary if, as Respondent contends, four shift
supervisors were added to the unit.
as Blare 17ash ress Inc, 109 NLRB 591.
24 Johnnie's Poultry Company, 146 NLRB 770, 775.
PURE CHEM CORP. 691
interrogation is necessary in preparing the employer's
defensefor the trial of a case.
There is no indication in-this record of the existence of
either of the conditions outlined by the Board-in Johnnie's
Poultry case, nor were the safeguards enumerated therein
taken. Accordingly, Hind the interrogation of employees
by McCoy and Callaghan, as found in the section-entitled
"Interference, Restraint, and Coercion;' were coercive and
thus violative of the provisions of of Section 8(aXl) of the
Act.
I have found that McCoy advised' Belfils and Hill that if
the Union won the election the existing profit-sharing plan
would no longer exist. I have found that Wiener made the
same assertion to Johnson. The Board has found such an
assertion constitutes a threat and conduct in derogation of
Section 8(a)(1). Elias Brothers Big Boy, Inc., 139 NLRB
1158.E
General Counsel correctly urges, in his brief, that the
arrival of McCoy, on October 15, immediately followed the
Union's request for recognition and bargaining. McCoy's
meeting with Foster, for the purpose of ascertaining the
nature of the employees dissatisfaction was promptly
followed with the arrival of new equipment, to alleviate
portions of that dissatisfaction. The recitation of Foster as
to the numerous inquiries of McCoy, relative to employee
reaction of these improvements, and their possible effect or
impact on the outcome-of the election, stands undisputed.
Since Respondent did' not see fit to produce McCoy as a
witness, or explain his nonappearance, it must be assumed
that McCoy's recitation would have been: adverse to the
interests of Respondent 26
I find it unnecessary to repeat the numerous findings I
have made, supra relative to promises of benefit made by
McCoy to Foster, Belfils, and Johnson, in the event the
Union was defeated and the Respondent was permitted an
opportunity, to improve conditions. Similarly, I find it
unnecessary to repeat my finding that Wiener threatened
plant closure and removal to Odessa, Texas, in the event the
Union won the election.
General Counsel, in support of his contention, cites the
holding of the Supreme Court in Exchange Parts, 27
The broad purpose of Section 8(a)(1) is to establish "the
right of employees to organize for mutual aid without
employer, interference"-[citation omitted]. We have no
doubt that it prohibits not only intrusive threats and
promises but also conduct immediately favorable to
employees which is 'undertaken with the , express
purpose of impinging upon their freedom of choice for
or against unionization and is reasonably calculated to
have that effect. In Medo Photo Supply Corp., v.
N.L.RB., 321 U.S. 678,686 this Court said. "The action
of employees with respect to the choice of their
bargaining agents may be induced by favors bestowed
by the employer as well as by his threats or
domination." " Although in that case there was already a
designated bargaining agent and the offer of "favors"
25 Accord : Melville Confectwns, Inc., 142 NLRB 1334.
28 Interstate Circuit v., U.S., 305 U.S. 208, 225-226; N.L.R.B. v.
Remington Rand Inc., 94 F.2d 862, 871 (CA. 2).
e'+ N.L.RB. v. Exchange Parts Co., 375 U.S. 405,409.
28 N.L.RR v. 6issel:Packing Co., 395 U.S. 375 (1969).
Eg., Great Plaint Steel Corp., 183 NLRB No. 96 (1970); Martin
was-in response to a suggestion of the employees that
they would leave the Union if favors were bestowed, the
principles which dictated the result there are fully
applicable here. The danger inherent in well-timed
increases in benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss the
inference that the source of benefits now conferred is
also the source from which future benefits must flow
which may dry up if it is not obliged. -.
Accordingly, for the reasons stated, I find -each, act of
interrogation, each acquisition and installation of conven-
ience facilities, or safety improvements, each promise of
benefit or threat, as specifically found herein, constituted
conduct in derogation of the provisions of Section 8(aX-l) of
the Act.
Refusal To Bargain
The complaint alleges that on October 10, 1969, the
Union requested Respondent to bargain collectively with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, as the
collective-bargaining representative of the employees in the
unit herein found to be an appropriate unit.IIt appears
undisputed that, at all times thereafter, Respondent refused
the request of the Union. I have found, from undisputed
testimony,' that on October 10, Corniola, union business
representative, displayed 15 unambiguous authorization
cards, signed by Respondent's unit employees, to Wiener. It
is undisputed, and I find, that this constituted majority
representation.
In the light of the Supreme Court's decision in Gissel 28 it
is now established that an employer's good- or'bad-faith
doubt that a union represents a majority of the employees
at the time of its request for recognition is largely irrelevant,
the criteria instead being whether or not the Union in fact
represented a majority of the employees and the employer
engaged in substantial unfair labor practices making a
holding of a fair election impossible or unlikely.
Here the record establishes beyond doubt that the Union
at all times at and after its request in fact represented a
substantial majority of the employees in the appropriate
unit. As a result of the Supreme Court's decision in Gissel it
must now be considered settled law that the majority status
of a union may be established by methods other than
certification by the Board after an election, including the
securing of the majority, of unambiguous authorization
cards.Under the Board's subsequent explications of Gissel 29
it is well settled that, where an employer rejects a
bargaining demand based on unambiguous authorization
cards and then engages in substantial unfair labor practices,
the Board is authorized to issue a bargaining order, both
when the employer has engaged in unfair labor practices
"so coercive that, even in the absence of Section 8(a)(5)
violation, a bargaining order would have been necessary to
repair the unlawful effect of those [unfair labor practices],"
Electronics Inc., 183 NLRB No. 4 (1970); Central Soya of Cantors Inc., 180
NLRB No. 86 (1969); Heck's Inc., 180 NLRB'No. 64 (1969); W.7: Grant
Company, 180 NLRB No. 45 (1969); The Brescome Distributors Corporation,
179 NLRB No. 137 (1969); and Garland Knitting Mills of Beaufort, South
Carolinas Inc., 178 NLRB No. 62 (1969).
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, as the court further stated : "... in less -extraordinary
cases marked by less pervasive practices which nonetheless
still have a tendency to undermine majority strength and
impede the election process." In the latter situation, in the
words of the Court:
If the Board finds that the possibility of erasing the
effect of past practices and of insuring a fair election (or
a fair rerun) by the use of traditional remedies , though
present, is slight and that employee sentiment once
expressed through cards would, on balance , be better
protected by a bargaining order then such an order
should issue.
Here, having suggested that the Union resort to the
Board's election process, instead of awaiting the outcome of
the election Respondent , immediately upon becoming
aware of the strength of the prounion sentiment among the
employees, by the exhibition of authorization cards from 15
employees out of 16 in the unit, embarked on the course of
conduct found above, including coercive interrogation,
threats, promises, and efforts to supply convenience
facilities and safety equipment , which I have found in each
instance to constitute an unfair labor practice.
Accordingly, I conclude and find that, as a result of these
unfair labor practices, the possibility of erasing their effects
and of insuring a fair election is slight, and , the employees
sentiment once expressed through cards would, on balance,
be , better protected by a bargaining order. I find
Respondent's refusal to bargain in these circumstances to
be in violation of the provisions of Section 8(a)(5) and (1) of
the Act.
I shall therefore recommend that Case 20-RC-9035 be
severed and remanded to the Regional Director for Region
20,, with Instructions that the election held on December 10
and 11, 1969, be vacated and set aside, and the petition in
said case be dismissed.
1! '. YH EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having fend that the Respondent has engaged ,' and is
engaging, in certain unfair labor practices , I shall
recorimehd'that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act„
It-will be recommended that Respondent , upon request,
recognize and bargain collectively with General Truck
Drivers & Helpers Local No. 315, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, as the exclusive representative of all employees
sQ In the ; event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
in the unit herein found to,be appropriate for thepurpose of
collective bargaining, with respect to rates of pay; wages,
hours of employment, and other conditions of- employment,
and, if an understanding is reached, upon request, embody
such understanding in a signed agreement.
It is further recommended that Respondent be ordered to
cease and desist from in any like or related manner
infringing on rights guaranteed to its employees by Section
7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in,the case, I make the following:
CONCLUSIONS OF LAW ,
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. General Truck Drivers & Helpers Local No. 315,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance - employees, includ-
ing laboratory technicians, employed by Respondent at, its
Richmond , California, plant excluding office clerical
employees, salesmen, professional employees , guards and
supervisors as - defined in' the Act constitute a-, unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union has been the exclusive representative of
all employees in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act, since October 9,1969.
5. By failing and refusing to meet,and bargain , in good
faith, on and after October 10, 1969;'with the Union as the
exclusive collective-bargaining representative 'for the 'em-
ployees, in an appropriate unit, described herein, with
respect to rates of pay, wages, hours of employment;' and
other terms and conditions of employment, Respondent
has engaged, and is engaging, in unfair labor - practices
within the meaning of Section 8(aX5) of the Act , and has
thus interfered with , restrained,, and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act,
and has thus engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1)-of the Act.
6. By engaging` in the conduct set forth in, the section
entitled "Interference, Restraint, and Coercion,", to the
extent , therein found, Respondent has engaged, and is
engaging, in unfair labor practices within the-meaning of
Section8(aX-l) 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.
RECOMMENDED ORDER30
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
and pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent, Pure Chem Corporation,
shall, as provided in - Section 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.
PURE CHEM CORP.
its officers, agents, successors, and assigns,shall be ordered
to:
1. Ceaseand desist from:
(a) Failing, and .refusing to bargain collectively in good
faith, with General Truck Drivers-&µHelpers Local No. 315,
International Brotherhood of Teamsters, Chauffeurs,
Warehouseniten & Helpers of America,- as the exclusive
bargaining. representative `of all its employees constituting
the unit herein found -to be appropriate for the purposes of
collective bargaining.
(b) Interrogating employees in a manner violative of the
provisions of Section 8(axl) of the Act.
(c) Providing or promising employees benefits or
improvements in working conditions as an inducement to
refrain from becoming or remaining a member of a union
or giving assistance or support to it, or threatening
economic retaliation in the form of discontinuance of
existing benefits, or plant closure or removal, with
consequent employee loss of employment, in the event the
Union won the election.
(d) In any like or related manner interfering with,
restraining, or coercing, its employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing , and to engage in any other
concerted activity for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities , except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8(aX3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with General
Truck Drivers & Helpers Local No. 315, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as the exclusive representative of all
the employees in the aforesaid appropriate unit , and, if an
understanding is reached , upon request, embody such
understanding in a signed contract.
(b) Post at its plant in Richmond, California, copies of
the attached notice marked "Appendix." 31 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt of this
Trial Examiner's Decision what steps the Respondent has
taken to comply with the foregoing recommended order32
IT Is FURTHER RECD ED that Case 20-RC-9035 be
severed and returned to the Regional Director for Region
20, with instructions to vacate and set aside the election of
693
December 10 and 11, 1969, and to dismiss the petition for
election in said case. ,
IT Is FURTHER RECOMMENDED that the allegations of
paragraph VI(c) of the complaint be, and they are hereby,'
dismissed.
31 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
enforcifng an Order of the National Labor Relations Board."
32 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 the Regional Director for Region 20, in writing , within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIM
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, recognize and bargain with
General Truck Drivers & Helpers Local No. 315,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of all of the employees in the bargaining
unit described below, with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, we will, upon request, embody such under-
standing in a signed contract. The bargaining unit is:
All production and maintenance employees,
including laboratory technicians, employed by
Pure Chem Corporation at its plant located in
Richmond, California, excluding office clerical
employees, salesmen, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT interrogate employees in the manner
violative of the provisions of Section 8(aXl) of the Act.
WE WILL NOT provide or promise employees benefits
or improvements in working conditions as an induce-
ment to refrain from becoming or remaining a member
of a union or giving assistance or support to it, or by
threatening economic retaliation in the form of
discontinuance of existing benefits, or plant closure or
removal, with consequent employee loss of employ-
ment, in the event the Union won the election.
WE WILL NOT in any like or related manner interfere
with, or restrain, or coerce, our employees in the
exercise of the right 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 any other concerted activity for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right might be affected by
an agreement requiring membership in a labor organi-
zation, as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
1
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain , or to This is an official notice and must not be defaced by
refrain from becoming or remaining, members of the anyone.
above-named Union or any other labor organization. This notice must remain posted for-.60 consecutive days
from the date of posting and must not be altered, defaced,
PURE Cis CORPORATION or covered by any other material.
(Employer) Any questions concerning this notice or compliancewith
its provisions, may-be -directed to,theBoard's Office, °13050
Dated By Federal Building,, 450 Golden Gate--Avenue, Box'^36047,
(Representative) (Title) San Francisco, California 94102, Telephone 556-3197.