Allied Kid Co.

National Labor Relations Board - Board Decisions

Dec 17, 1965

156 N.L.R.B. 162 (N.L.R.B. 1965)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harvard Coated Products Co., Division of Colonial Tanning Com-
pany, Inc., Subsidiary of Allied Kid Company and United Shoe
Workers of America, AFL-CIO
Harvard Coated Products Co., Division of Colonial Tanning Com-
pany, Inc., Subsidiary of Allied Kid Company and United Shoe
Workers of America, AFL-CIO, Petitioner. Cases Nos. 1-CA-
4683,1-CA-4731, and 1-RC-7985. December 17,1965
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On June 17,1965, Trial Examiner Eugene E. Dixon issued his Deci-
sion in the above-entitled proceedings, finding that the Respondent had
engaged in certain unfair labor practices alleged in the complaint and
recommending that it cease and desist therefrom and take certain
affirmative action. The Trial Examiner further found that the Re-
spondent did not engage in certain other unfair labor practices alleged
in the complaint. In addition, the Trial Examiner found that the
Respondent had engaged in objectionable conduct prior to the election
held in Case No. 1-RC-7985, and recommended that the said election
be set aside , all as set forth in the attached Trial Examiner's Decision.
The Respondent filed exceptions to those portions of the Trial Exam-
iner's Decision in which violations of the Act and objectionable con-
duct were found and a brief in support thereof. The General Counsel
filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Brown, Jenkins, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con-
clusions , and recommendations as modified herein.
We agree with the Trial Examiner that Respondent violated Section
8(a) (1) of the Act by Plant Superintendent Scourtas' threat to
employee Kochilaris that, if the Union came in, the Company would
lose an important customer, and by a similar statement to employee
LeRoy with a promise of a supervisory position to LeRoy conditioned
upon the Union's loss of the election.' However, in the circumstances
of this case, including the prompt action taken by Respondent's offi-
1 Although the matter is not free from doubt , we believe the evidence to be insufficient
to support a finding that the bonus of July 28 , 1964, was designed to influence the em-
ployees in violation of Section 8(a) (1) of the Act.
156 NLRB No. 4.
A
HARVARD COATED PRODUCTS CO. 163
dais in agreeing to an election upon receiving the Union 's request for
recognition and a copy of its representation petition , the absence of
unfair labor practices thereafter , and the fact that Scourtas engaged
in the prior conduct described above after having been directed by Gen-
eral Manager Corwin not to talk about the Union in the plant, we do
not regard Scourtas ' conduct, for which, of course , Respondent must
be held responsible under Section 8(a) (1) of the Act, as sufficient to
warrant a finding of bad faith on Respondent's part in seeking to
resolve the Union's representation claim by an election. " Accordingly,
we will dismiss that portion of the complaint which alleges that Re-
spondent has violated Section 8 ( a) (5) of the Act.
We find, however , that the unlawful conduct attributable to
Respondent interfered with the election in Case No .' 1-RC-7985 and
warrants setting aside that election and the direction of a new one.
We shall so order.
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications : ( 1) Delete paragraphs 1(a) and
2(a) and reletter the subsequent paragraphs consecutively ; and (2)
delete the first indented paragraph of the Appendix 3 including the
appropriate unit.]
[The Board dismissed the complaint insofar as it alleges violations of
the Act not found herein.]
[The Board set aside the election in Case No. 1-RC-7985.]
[Text of Direction of Second Election omitted from publication.]
2 Hammond & Irving, Incorporated, 154 NLRB 1071.
3 The telephone number for Region 1, appearing at the bottom of the Appendix attached
to the Trial Examiner 's Decision , is amended to read: Telephone No. 223-3358.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Exam-
iner Eugene E. Dixon at Newburyport, Massachusetts, on January 25 and 26, 1965,
pursuant to due notice, with all parties represented by counsel. The consolidated
complaint 1 issued on November 18, 1964, by the Regional Director for Region 1,
Boston, Massachusetts, on behalf of the General Counsel of the National Labor
Relations Board, herein called the General Counsel and the Board (based upon
charges filed July 27, 1964, in Case No. 1-CA-4683 and on September 9, 1964, in
Case No. 1-CA-4731), alleged that Harvard Coated Products Co., Division of
Colonial Tanning Company, Inc., Subsidiary of Allied Kid Company, herein called
the Respondent, had engaged in unfair labor practices proscribed by Section 8 (a) (1)
and (5) of the Act. The substance of the allegations was that Respondent had
interfered with, restrained, and coerced its employees in the exercise of rights guar-
'Besides the unfair labor practice matters, a hearing was ordered on the question of
whether or not Respondent had interfered with the freedom of choice of the employees at
a representation election conducted by the Board on August 12, 1964, in Case No.
1-RC-7985.
217-919-66-vol. 156-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anteed by Section 7 of the Act by various specified conduct and had refused to bar-
gain with the Union as the representative of a majority of Respondent 's employees in
an appropriate unit.
In its duly filed answer Respondent denied any violation of the Act.
The case was efficiently and competently tried and excellent briefs were filed by
Respondent and the General Counsel.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
At all times material herein Respondent has been a division of Colonial Tanning
Company, Inc., a corporation duly organized under and existing by virtue of the laws
of the Commonwealth of Massachusetts and has maintained its principal office and
place of business at Newburyport, Massachusetts, where it has been continuously
engaged in the fabrication, lamination, and coating of .textiles for footwear and the
sale and distribution- of such products. In the course and conduct of its business
operations Respondent annually purchases, transfers, and has delivered to its New-
buryport plant sponge rubber, textiles, and other goods and materials valued in excess
of $50,000 which goods are transported to said plant in interstate commerce directly •
from States of the United States other than the Commonwealth of Massachusetts.
Respondent also, in the course and conduct of its business operations, manufactures,
sells, and distributes at its Newburyport plant, fabricated, laminated, and coated
textiles valued in excess of $50,000 which are shipped from said plant directly to States
of the United States other than the Commonwealth of Massachusetts. Respondent is
an employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
United Shoe Workers of America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The General Counsel's Evidence
On July 28, 1964, Respondent received the following letter from the Union:
This is to advise that a majority of your production and maintenance employ-
ees have signed union authorization cards with the United Shoe Workers of
America, AFL-CIO.
In view of the above, we request a meeting for the purpose of negotiating a
union contract covering wages, hours and working conditions.
Will you please advise as to the date, place and time that would be convenient
to carry out the above-stated purpose and request.
Co-incident with this request, we have today filed with the National Labor
Relations Board a petition requesting that agency to conduct a secret ballot
election.2
As of this time there were 60 production and maintenance employees on Respond-
ent's rolls who, excluding office clerical employees, professional employees, guards,
and all supervisors as defined in the Act, I find constituted an appropriate bargaining
unit within the meaning of Section 9(b) of the Act. Also as of this time the Union
had obtained 35 authorizations from employees in the unit designating the Union as
their collective-bargaining agent. These authorizations had been obtained on various
dates ranging from April 29 to July 24, 1964.
On the afternoon that Respondent received the above letter, just before the end of
the workday, General Manager Murray Corwin called all of the employees together,
at which time they were given bonus checks, together with a copy of the following
letter on an Allied Kid Company letterhead:
To THE EMPLOYEES OF HARVARD COATED PRODUCT CO.
July 24, 1964
It has been an established practice of Allied Kid Company to pay a bonus
to its employees at the end of the fiscal year, June 30, whenever profits warrant it.
2 The Company also received a copy of the R petition from the Board on July 28.
HARVARD COATED PRODUCTS CO. 165
The enclosed bonus payment is in recognition of your contribution to the
Company's success. We thank you for your cooperation.
(S) Julian E. Agoos
JULIAN E. AGOOS
President.
In addition to meeting with the employees on July 28, Corwin also visited that day
the Daily News office (a Newburyport newspaper) for the purpose of informing the
newspaper that the next Allied Kid Corporation directors' meeting would be held
in Newburyport.3 At this time Corwin also discussed in general the matters covered
in an article on the Harvard Coated Products Co., which appeared in the paper the
following day. That article reads in part:
Since acquiring the Newburyport plant, there has been a general wage increase
and establishment of a company -paid medical plan.4
More jobs-the local company has already improved some of its machinery and
has purchased new equipment for increased production. Future plans call for
the Newburyport plant to perform work for some of Allied's other divisions if
costs are kept in line with similar work now performed at other locations .5
In his visit to the newspaper Corwin specifically discussed the bonus, the general wage
increase, the paid medical plan, and also the possible expansion of the plant contingent
on keeping costs in line.
Walter C. Melvin, a former employee of Respondent who had been made fore-
man of the takeoff room during the first week in June 1964, testified about a con-
versation with Plant Superintendent Frank Scourtas on the day that the board of direc-
tors' meeting was held as follows:
Yes, and (he) took me for a little walk around the grounds outside the shipping
room, etc. He talked a little bit about well, he's the first one that gave me the
information that the Company wasn't going to fight the election, that they were
going to have the election without the company lawyer fighting it, but he told
me not to tell anybody, which I didn't. He also said that the Company's going
to expand and put a lot of new machines in and they're going to use the other
factory, but they have to beat the Union first, and he said to me, he said, "I know
that you know that anybody that voted for the Union or would vote for the Union
or had signed cards because I knew that you was active in it ... I know that
you are active in the Union, and you know who signed the cards," and I says,
3 The practice of the parent company was to rotate its stockholders meetings at the sites
of its various plants, emphasizing New England in the summertime.
4 Respondent had granted several benefits to the employees in the spring of 1964, as
reflected in this communication to the employees by letter on April 10, 1964:
After consultation with the officers of Allied Kid Company and their full approval,
we have decided to put Into effect the following employees ' benefits:
1. Effective May 1, 1964, we have arranged with the Massachusetts Blue
Cross -Blue Shield to provide for all employees-entirely at the Company's
expense-certain hospital and surgical benefits. The full details of these bene-
fits will be explained to you in the printed forms which the Blue Cross will pro-
vide. Basically , however, the plan calls for full payment of all hospital expenses
plus most surgical costs in a semi -private room at a hospital chosen by the
employee.
The above benefits apply only to the employee ; if In addition, you want
protection for your family-including all children under 19-this can be ob-
tained at a cost of $10 . 48 per month to be paid by you.
H. Effective the week ending April 18, 1964 and payable in the check you
receive on April 24, 1964 , the pay of all hourly employees will be increased
7¢ per hour.
III. All employees with the Company one year will receive a paid vacation
of one week ; employees with five years or more service will receive two weeks.
(Employment with the former Harvard Coated Products Co., Inc. will be
Included.)
The Company officials take this opportunity to thank you for your loyalty and
cooperation.
The Newburyport plant was acquired by Allied Kid on January 1 , 1964, and as stated
in the article elsewhere was being "operated as a division of the Colonial Tanning Com-
pany which is a subsidiary of the parent Allied Kid Company."
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Yes, I know they got a more of a majority," and he also says that, "I want you
foremen," he says, "We're going to put a lot of new machinery in here and
we're going to give raises," and then he asked me if my men were getting
machine operator's pay, I said no, they weren't. And he said, "After the elec-
tion if everything goes all right remind me that they all get a raise." I never
said a word to the men of ... he wanted me to see what I could do about having
it not get in ... he says, "We can't get the Union in. See if you can talk. You
know it by the signed cards. You know everybody's for the Union. You know
everybody's signed cards. You know everybody's for the Union."
On cross-examination Melvin admitted that in an interview with Respondent's
counsel on August 20, 1964, he had told him that he had not "interfered with the
Union in any way" and also that Scourtas had given him and the other foremen "spe-
cific instructions" not to interfere with union activities in any way.6 Notwithstanding
these instructions, according to his testimony, a couple of days before the union elec-
tion he told one man to vote against the Union or he would lose his job because of
his junior status. The man's name, Melvin believed, was Robert Hartnett. Melvin
testified that he never told anyone about this remark to Hartnett, including the union
or Board representatives. Notwithstanding his testimony that Scourtas had told
him not to interfere with the Union, he further maintained that Scourtas "also told
him to" do so.
Robert J. Woodbury, another witness called by the General Counsel, testified that
2 days before the election, on an occasion when he was not feeling well, Scourtas
approached him and recommended some medicine. At this time Scourtas also told,
him that Respondent "was considering expansion of the plant but it all depended
upon the outcome of this week." On cross-examination, when asked if any company
representative had "made any promises" to him or "threatened" him in any way, he
answered, "no."
Peter Kochilaris, another ex-employee called by the General Counsel, also testified
about a conversation with Scourtas a day or two before the election as follows:
Well, he asked me how my leg was, you know, and I told him it was getting
much better, and he started to tell me that things were getting a little bit too
expensive in the factory, that it was costing them a lot of money to combine
material there, and if the Union would get in it would cost them a lot more
money to combine material. They can have their stuff sent out and have it
combined cheaper than what Harvard Coated could do it . . . he said in time
probably Clemtex would pull out and have it done another place ... he said if the
Union got in it would cost a lot more money to combine them.
On cross-examination Kochilaris testified:
Well, Mr. Scourtas said that at the moment it was costing him a lot of money
to combine material, and if the Union got in it would cost them much more.
Then in time Clemtex would pull out. They wouldn't have it done in that fac-
tory ... he said it cost him less money to have material combined in other places
other than Harvard. It cost them less to have material combined other places.
If he sent it out it would be cheaper for him to have it combined than doing it
himself.
Robert Edward LeRoy, a current employee called by the General Counsel, testified
about three conversations he had with Scourtas. The first one was 3 or 4 months'.
before the election. It took place at the timeclock where Scourtas spoke of the
proposed expansion of the plant and told LeRoy that he "would become a foreman
provided that the Union did not get in." The second conversation took place 2 days
before the election in Scourtas' office. Once again he talked about the expansion of
the plant and the promotion of LeRoy to foreman "if the Union didn't get in." He
also said "that certain benefits such as Bluecross-Blueshield would be eliminated and
that Clemtex Manufacturing Company would pull out if the Union was to get in."
The third conversation took place the next day as follows:
At that particular time Frank wanted to transfer me into the shipping room, and
he wanted me to learn the job, learn the materials and what not, and learn it
well, because he said that he and the Company or the Company had intentions
of expanding the shipping room. Now, he based this on the shipping room.
6 Not only did he admit telling Respondent's counsel this, he also testified to the truth
of the admission.
HARVARD COATED PRODUCTS CO. 167
He said that there would possibly be two shipping rooms. What he meant by
that I don't really know, and once again he brought up the foreman's position
referring to me and this again based if the Union did not get in.
On cross-examination when asked what Scourtas had said on the occasion of the
first conversation, LeRoy testified:
Well, he mentioned as before expansion, and that they would bring in new
machines into the old building what is referred to as the old building, and that
also a foreman's position was in mind for myself, and that it would take place
in approximately 2 to 4 months after this conversation.
When asked if anything further was said at that time, he answered, "No, sir."
Respondent's Evidence
General Manager Corwin's testimony was as follows: He had been the top execu-
.tive in charge of the Company under its former owner. In 1963, the Union had also
tried to organize the plant. In a Board-conducted election which had been held on
July 27, 1963, the Union failed to gain a majority. This was not a consent election
and the Company was represented by counsel at this time.
Sometime prior to the current election, no date being specified, Corwin had seen
a union pamphlet which contained the following paragraphs:
There is only one way to get rid of the WORRY OF LOW WAGES and that is
to JOIN THE UNION.
Many of your fellow workers know this and have sent in their authorization
cards. In fact, we already have the legal number to have an election; however,
this time we want to be sure of winning and we are not going to seek an election
until we are positively sure we will win.
On the same day or the day after receiving the Union's request for recognition
and the copy of the representation petition, he and Plant Superintendent Scourtas
went to Boston and conferred with Julian Agoos, president of Allied Kid. At this
time Respondent was not represented by counsel. The three of them then went to the
Board office and conferred with Board Agent Harris. As they were "without counsel"
Harris explained to them about the consent-election procedure and asked whether they
would want a hearing on the matter. They agreed to a consent election and Harris
immediately contacted the Union and set a preelection conference for August 4, with
the election being set at that time for August 12. Harris also told them that they
"didn't have to do anything else until the pre-election hearing." 7
As for why the announcement of the bonus was made to the employees on July 28,
Corwin testified:
Well, we had planned to distribute them with their paychecks on July 24, Friday,
but there wasn't enough time to get both the payroll checks ready and the bonus
checks ready, and naturally the payroll checks had to be done first, and then the
bonus checks, the bonus checks weren't ready. I believe they worked on them
over the weekend and the bonus checks were ready for distribution on Monday,
but I wasn't there Monday afternoon so it had to be done on Tuesday. That was
the next day.
On cross-examination Corwin admitted that one of the reasons Respondent did not
reply to the Union's request for recognition was because of its having filed the rep-
resentation petition. Both on direct and cross-examination Corwin repeatedly pro-
fessed a good-faith doubt regarding the majority. He further testified that he had
no actual knowledge of the Union's status regarding majority and took no steps to
determine it. When it was suggested to him "that there was not too much thought
given by (him) or anybody else as to whether or not the Union in fact had a majority
of the employees, but that the motivating factor for (his) course of action was to
either dispose of this as soon as (he) could through a consent election in view of the
fact that the petition had been filed," he replied, "Well, I wouldn't quite put it that
way."
Corwin also admitted on cross-examination that supervisors would report to him
on various employees' union sympathies, some ,being for and some being against
7 In connection with an objection on the part of the General Counsel to Harris' alleged
comments, Respondent stated that the testimony was "offered to show (a) course of
action taken by this Respondent who was acting as a layman without counsel and who
was advised to go to Mr . Harris to get advice."
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. He placed no stock in these reports-"none whatsoever." He further
testified that he instructed his supervisors not to bring these reports in to him.
In explaining the reason why he doubted the Union's majority status, he testified:
The basis of my opinion was this, that I year previously under the old owners
wages were considerably lower, there was no Bluecross-Blueshield, they had no
bonus-well, I don't know. Well, the bonus came later, but I knew about it,
and various other things that we had done for the employees.s
Corwin further testified on cross-examination that he was not informed by the
parent company of its bonus system until the second week of July. Then "it came
up in a telephone conversation from Mr. Agoos." Agoos gave the formula for com-
puting the bonus over the telephone and said that he would confirm it by letter. Cor-
win did not inform the employees immediately about the coming bonus because he
"wanted the bonus payment to be a complete surprise." He also testified that he had
discussed with Scourtas "the method of passing out the bonuses." On the day that
they were passed out, he told Scourtas that "this is the day that the bonuses would be
passed out."
Corwin also testified that he believed that after 3 months of campaigning, the
Union had enough signatures to petition for an election but that they did not have
a majority. In this connection he testified that Union Organizers DiPietro and Mag-
nun, in a visit to his office on July 24, had told him that "they had enough signatures
to file a petition for a vote." In fact they claimed that they had already filed the
petition but the record shows it was not filed until the 27th.
Allied Kid President Agoos testified that he made the appointment with Board
Agent Harris "to discuss the procedure, the mechanics of dealing with the matter.
It was just for my information." He also testified that he had had experience with
this type of matter "in Wilmington many years ago" but that he "had not been
personally involved ... in the arrangement with the NLRB."
At the Board office, Harris told them that the election date could be decided on
mutually between the Union and the Company. Agoos explained:
And this is pretty much what I had come to find out about, . . . I wanted to know
whether it would happen in a short time or a long time, and I felt leaving the
office that it would be a short time off, and that's really why I went over to see
him.
On direct examination Scourtas corroborated Corwin's testimony that DiPietro
in the July 24 meeting at the plant had stated that the Union had enough cards to file
an R petition.
He also testified that Corwin had told him "not to talk about union in the plant
and to advise all foremen and supervisors in the plant not to talk about union."
Accordingly, in early June, he "advised all (the) foremen not to engage themselves
in any union activity at all or talk about the Union at all." 9
Scourtas denied in his testimony all of the 8 (1) statements attributed to him by
the General Counsel's evidence. He admitted that the union campaign was a "fairly
common topic in the plant." Nevertheless he denied talking to any of the employees
at any time during the campaign about the Union. Indeed, his testimony was, when
employees came to tell him "certain things about the Union," he would refuse to talk
to them, telling them he could not engage in any conversations about the Union.
Scourtas admitted in his testimony that he did talk to the employees regarding
plant expansion. This was when they would ask him for raises or better jobs. He
would then tell them that if they improved their work they might get a chance at the
better jobs "that were going to be available." He also testified that the Clemtex work
had started in June. At this time Respondent was experimenting on its orders "try-
ing to get the quality up and the production out for them" while maintaining costs.
Having had complaints from Clemtex that Respondent's work was poor and that it
was not getting the production out, he discussed these things with numerous employ-
ees, stressing the need for improvement in order to hold the Clemtex work.
8In addition to the wage increase and other benefits announced by Respondent on
April 10, 1964, for the first time in Corwin's 15 years with the Company, to his knowledge,
a holiday falling on Saturday was paid for. This involved May 30, Memorial Day,
which was announced to the employees by a letter dated May 15, 1964.
8 On cross-examination he testified that this occurred late in June at a general pur-
pose meeting of supervisors. He brought the subject of the Union up at this time be-
cause "some of the fellows were telling (him) that the union men were going down to
their homes . . . for them to sign cards."
HARVARD COATED PRODUCTS CO. 169
As for promising LeRoy a promotion, Scourtas testified as follows: LeRoy was
continually after him to get a better job. Scourtas told him that he could not do any-
thing for him until he proved himself. If he proved his capabilities and improved
his work and absenteeism and his tardiness, Scourtas could do something for him
later.10 At one point LeRoy demanded a raise saying that he would have to leave
if he could not get it. Scourtas told him that he could not give him a raise because
his record was not clean and that the only was he could do something for him was
for him to improve.. Thereafter, for the first 2 weeks in September, LeRoy's record
was perfect. On this basis Respondent granted him a raise.
Scourtas testified that there was no foreman in the shipping room; that the work
there was handled by three people under a leadman known as the shipper; and that
the shipping department was directly under Scourtas' own supervision. He admitted
talking to Woodbury about training him for work in the shipping department but
denied coupling his remarks with any comments about the Union.
The General Counsel's Rebuttal Testimony
In rebuttal for the General Counsel, Union Official Marty Magnun (a member of
the Chemical Workers Union currently employed by the Industrial Union Department
of the AFL-CIO and assigned to assist the Shoe Workers in their organizing effort
in Newburyport) testified that it was he who brought up the question of the union
cards. This was after he and DiPietro had been discussing the reinstatement of a
discharged employee, one Clark. That meeting had broken up and DiPietro had left
the plant but Magnun had stayed on to make further effort in Clark's behalf. At
this time Magnun had threatened to file a charge regarding Clark and had added
"that there was no question in (his) mind that the Shoe Workers Union would come
right in behind (him) and ... file a petition; because they had more than a majority."
Resolutions and Conclusions
8(a)(1)
Notwithstanding that Scourtas'instructed the foremen, including Melvin, that they
were not to interfere with or talk about the union activities of the employees in any
manner, I feel that the protestations of his own neutrality were so extreme as to raise
about the Union at any time during the campaign is belied by his explanation of why
he ordered the foremen to abstain from any such discussion with the employees.
He did so, he claimed, because of reports he had received from "some of the fellows"
about being solicited at their homes to sign union cards. Normally supervisors
considerable skepticism about them. His denial of talking to any of the employees
are not the targets of such solicitation and it would appear that his information came
directly from the employees themselves. Furthermore, his explanation does not jibe
with other of his or Respondent's testimony. Elsewhere it appears that his order to
the foremen in this connection was the result of a directive from Corwin. Moreover,
he testified that at no time did he and Corwin ever discuss the Union except in an
offhand manner like "I see the union organizers are outside again today," or some
such innocuous and passing remark. I do not believe this testimony.
Accordingly, I am inclined to and do credit the foregoing testimony of Woodbury,
LeRoy,11 and Kochilaris as against Scourtas' denials. This resolution is consistent
10 Respondent introduced from its records evidence covering about 3 months of LeRoy's
employment at this time , showing considerable tardiness and absenteeism . In this con-
nection, Scourtas admitted that there were others besides LeRoy who had tardiness
records.
211 credit LeRoy as pertains to the second and third conversations he had with
Scourtas . His testimony on cross-examination leads me to believe that nothing was
mentioned to him about the Union in the first conversation concerning a promotion to
the shipping department . This does not preclude the Union's having been mentioned in
that connection in the later conversations . Respondent maintains that the evidence shows
that LeRoy was not the kind of an employee who would have been considered for promo-
tion. Possibly ; but his shortcomings were duplicated by other employees. And the
fact that a 2-week period of rectitude on his part served to wipe out his bad record and
be grounds for a wage increase to him would indicate some kind of special status for
him. Also it would seem that if Respondent had been anticipating an overall expansion
in the plant , it would be reflected in the workload of the shipping room. Such being the
case, a logical place to put a supervisor would be in the shipping room thus relieving the
plant superintendent of direct supervision of that department.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Scourtas' remarks (undenied) to Melvin about the plant expansion being condi-
tioned upon defeating the union effort.12
Of the foregoing evidence I find only the following to have been coercive within the
meaning of Section 8 (a) (1) of the Act: 13 (1) Scourtas' remarks to Kochilaris that
if the Union got in, it would cost more to combine materials and in time, for that
reason, Clemtex would "pull out"; (2) Scourtas' remarks to LeRoy 2 days before
the election that if the Union got in, employee benefits would be eliminated and the
Clemtex work would be lost; and (3) Scourtas' further remarks the following day con-
ditioning a promotion of LeRoy to foreman on the Union's defeat in the coming
election.
In addition to the foregoing, I find that by granting the bonus to the employees on
July 28, Respondent further violated Section 8(a)(1) of the Act.14 N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405; Tinley Park Dairy Co., d/b/a Country Lane
Food Store, 142 NLRB 683, 694. I am convinced by the circumstances of the bonus
grant, particularly its timing, that it was put into effect for the purpose of influencing
the employees in the then pending election. Moreover, I make this finding notwith-
standing that it would appear that the bonus had been decided on prior to receipt of
the request for recognition and the representation petition. As I view the evidence, this
is what happened: When Corwin was informed by the union officials on July 24 that
the Union was about to file an R petition, he immediately called Allied Kid President
Agoos in Boston with the information. In an effort to beat the filing of the petition
and to influence the employees in their union support, Agoos instructed Corwin to
announce the grant of a bonus to the employees giving him the formula over the
telephone (as testified by Corwin) and saying he would confirm it by letter.15
8(a)(5)
The Respondent's defense to the refusal-to-bargain charge is based upon two con-
tentions: (1) When the demand for recognition was made, Respondent entertained
a good-faith doubt that a majority of the employees had designated the Union as their
bargaining agent; and (2) if the Union had a majority at this time, the signatures had
been obtained through misrepresentation which vitiated the authorizations.
The Validity of the Authorizations
Although there was some insubstantial evidence regarding talk of an election in
connection with the solicitation of authorization cards, there was no specific evidence
that a direct misrepresentation was made in this connection. Moreover, the cards
were unequivocal in their import, saying simply that "I hereby authorize the United
Shoeworkers of America, AFL-CIO to represent me in collective bargaining with my
employer." In these circumstances I find the authorizations here to have been valid
designations of the Union as the collective-bargaining agent of those who had signed
them. Winn-Dixie Stores, Inc., and Winn-Dixie Louisville, Inc., 143 NLRB 848.
The Good-Faith Doubt of Majority
In the Joy Silk Mills, Inc., case,16 the Board stated:
We have previously held that an employer may in good faith insist on a Board
election as proof of the Union's majority but that it "unlawfully refuses to bar-
gain if its insistence on such an election is motivated, not by any bona fide
doubt as to the union's majority, but rather by a rejection of the collective bar-
12 This is the only part of Melvin's testimony upon which I rely. Melvin had been
discharged by Respondent apparently in derogation of his seniority. Besides some in-
consistencies in his testimony, the conflicting orders he claims Scourtas had given him
regarding interference with the union activity of the employees seems inherently incredible.
13 Woodbury's testimony that Respondent "was considering expansion of the plant but
it all depended upon the outcome of this week," is too equivocal and subject to diverse
interpretations to find it to have been a promise of work expansion conditioned upon
defeat of the Union.
14 Although this action was not alleged. In the complaint as an unfair labor practice,
since it was fully litigated, I make this finding.
is No such letter was produced in evidence but it is interesting to note that the letter
to the employees from Allied Kid announcing the bonus is dated July 24. The failure to
produce the confirming letter undercuts Corwin's testimony that he learned about the
bonus in the second week of July.
is 85 NLRB 1263, 1264, enfd. 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.
HARVARD COATED PRODUCTS CO. 171
gaining principle or by a desire to gain time within which to undermine the
union." In cases of this type the question of whether an employer is acting in
good or bad faith at the time of the refusal is, of course, one which of necessity
must be determined in the light of all relevant facts in the case, including [all]
unlawful conduct of the employer, the sequence of events, and the time lapse
between the refusal and the unlawful conduct.
It seems to me that whatever evidence there is in this record which might otherwise
support Respondent's claim of good faith,17 it is effectively nullified by Scourtas'
8(a)(1) actions and by the granting of the bonus on July 28. In my opinion this
conduct clearly demonstrates Respondent's "rejection. of the collective bargaining
principle" and in the context of the circumstances here makes it liable under Sec-
tion 8(a)(5) for its failure to honor the Union's request for recognition. Joy Silk'
Mills, Inc., supra; Bernel Foam Products Co., Inc., 146 NLRB 1277.
The Objections to the Election
It is clear from the foregoing that there is sufficient merit in the Charging Party's
objections to the election so that the election should be set aside. I so recommend.
However, in view of my finding of a refusal to bargain under Section 8(a) (5) and my
Recommended Order in that connection, I do not recommend that a new election be
held.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON.COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate 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 found that Respondent violated Section 8(a)(1) and (5) of the Act, I
will recommend that Respondent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent refused to bargain with the Union which rep-
resented a majority of the employees-in an appropriate unit. Accordingly, I shall
recommend that, upon request, Respondent be ordered to bargain with the Union
as the exclusive representative of the employees in the appropriate unit.
In view of the foregoing findings of fact, and upon the entire record in this case,
I make the following:
. CONCLUSIONS OF LAW
1. At all times material herein, the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
2. At all times material herein, Respondent has been engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. All production and maintenance employees of Respondent employed at its
Newburyport plant, exclusive of office clerical employees, professional employees,
guards, and all 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. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor
practices proscribed by Section 8 (a) (1) of the Act.
5. By refusing to bargain with the Union from July 28, 1964, as the representa-
tive of the employees in the above unit, Respondent has engaged in and is engaging
in unfair labor practices proscribed by Sections 8(a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and the foregoing findings of fact and conclusions
of law, and pursuant to Section 10(c) of the National Labor Relations Act, as
17 In this connection I credit Union Organizer Magnun's testimony that he told Corwin
on July 24 that the Union "had more than a majority" at that time. The record shows
that this was the fact and I do not see why Magnun would have downgraded the Union's
strength when the usual approach would be to do just the opposite under any circumstances.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended, I recommend that Respondent , Harvard Coated Products Co., Division of
Colonial Tanning Company , Inc., subsidiary of Allied Kid Company , Newburyport,
Massachusetts , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with United Shoe Workers of America, AFL-CIO, as
the exclusive representative of its employees in the appropriate unit, with respect to
.rates of pay , wages, hours , of employment , and other terms and conditions of
employment.
(b) Threatening its employees with economic reprisals or promising them eco-
nomic benefits for the purposes of influencing their union activities or sympathies.
(c) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of their right to self-organization , to form , 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 activi-
ties for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent that such right is affected
by the provisions of Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action , which I find will effectuate the policies of
the Act:
(a) Upon request , bargain collectively with United Shoe Workers of America,
AFL-CIO, as the exclusive representative of all its production and maintenance
employees , excluding all office clerical employees , professional employees , guards,
and supervisors as defined in the Act, with respect to rates of pay, wages , hours of
employment , or other conditions of employment , and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its plant in Newburyport , Massachusetts , copies of the attached notice
marked "Appendix ." 18 Copies of said notice , to be furnished by the Regional Direc-
tor for Region 1, shall, after being duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted . Reasonable steps shall be
taken by the Respondent to insure that such notices are not altered , defaced , or cov-
ered by any other material.
(c) Notify the Regional Director for Region 1, in writing , within 20 days from
the date of receipt of this Decision , what steps the Respondent has taken to comply
herewith.19
>e In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner " in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order." .
")In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL bargain , upon request , with United Shoe Workers of America,
AFL-CIO, as the exclusive representative of all the employees in the bargaining
unit described below with respect to rates of pay, wages, hours of employment,
or other terms and conditions of employment , and, if an understanding is
reached, embody it in a signed agreement.
All of our production and maintenance employees , excluding all office
clerical employees , professional employees , guards, and all supervisors as
defined in the National Labor Relations Act, as amended.
WE WILL NOT threaten employees with economic reprisals or promise them
economic benefits for ' the purpose of influencing their union activities or
sympathies.
IRON WORKERS LOCAL NO. 155 173
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self -organization , to form, join,
or assist United Shoe Workers of America, AFL -CIO, or any other labor orga-
nization , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection , or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by the provisions of
Section ( a) (3) of the Act , as amended.
HARVARD COATED PRODUCTS Co., DIVISION OF COLONIAL TANNING
COMPANY, INC., SUBSIDIARY OF ALLIED KID COMPANY,
Employer.
Dated-------------- ----- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Boston Five
Cents Savings Bank Building, 24 School Street , Boston , Massachusetts , Telephone
No. 523-8100.
Iron Workers Local No . 155, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO and Val-
ley Foundry & Machine Works , Inc. and District Lodge 87,
International Association of Machinists and Aerospace Work-
ers, AFL-CIO. Cases Nos. 20-CD-154 and 20-CD-171. Decem-
ber 17, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges in Case No.
20-CD-154, on November 4, 1964, by Valley Foundry & Machine
Works, Inc., herein called Valley Foundry or the Employer. There-
after , charges in Case No. 20-CD-171 were filed by the Employer on
June 25, 1965, and subsequently amended on September 2 and 23,
1965. The charges as amended allege that Iron Workers Local No.
155, International Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, herein called the Iron Workers, and Car-
penters Local Union No. 701, International Association of Carpenters
and Joiners of America, AFL-CIO,' violated Section 8 (b) (4) (i) and
(ii) (D) of the Act. On September 3, 1965, the Acting Regional
Director for Region 20 issued a notice of hearing, which was later
amended on September 22 and October 8, 1965. The hearing was held
in Fresno , California, before Hearing Officer John B. Salazar on Octo-
'On October 28, 1965, after the hearing herein , the Regional Director for Region 20,
approved an Informal settlement agreement signed by Carpenters Local 701 and Valley
Foundry. Accordingly , this leaves for consideration a dispute which concerns Iron
Workers Local No. 155 alone. However , the evidence adduced at the hearing which In-
volves the Carpenters is hereinafter set forth in order to present a more complete picture
of the dispute before us.
156 NLRB No. 26.