Arrow Specialties, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 306 (N.L.R.B. 1969)

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arrow Specialties, Inc. and District No. 9,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Cases 14-CA-4688
and 14-CA-4845
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On April 15, 1969, Trial Examiner Paul Bisgyer
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. Thereafter,
the Respondent filed exceptions and a brief in
support and the General Counsel filed a
cross-exception concerning the remedy, and a brief
in support.
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 this case, and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner as modified herein.'
For the reasons stated by the Trial Examiner, we
find that the Union had been duly designated by a
majority of employees in the appropriate unit to act
as their representative for purposes of collective
bargaining by May 17, 1968, the date Respondent
received the Union's renewed demand for
bargaining . In essential agreement with the Trial
Examiner, we find that Respondent violated Section
8(a)(5) of the Act by refusing to recognize and
'Pursuant to the provisions of Sec . 3(b) of the National Labor Relations
Act, as amended, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel.
The Trial Examiner, following then Board precedent , excluded from the
unit employee Schreier who is a Social Security annuitant . Schreier works
regularly on a parttime basis He did not sign an authorization card As
the Board now applies to employees on Social Security the rule with
respect to regular parttime employees generally, we shall include Schreier
in the unit See Holiday Inns of America, 176 NLRB No. 124 In
addition , we note that employee Hof , whose card the Trial Examiner did
not count because it appeared that he signed in reliance upon a
representation by the Union that it was intended to secure an election, is a
senior university student in business administration and accounting, who
works four hours at nights doing "secondary work" on drill presses and
milling machines . Hof does not anticipate working for the Respondent
after graduation and for that reason apparently delayed signing a card He
considered that the advent of a Union would have little effect upon him.
We shall exclude Hof from the unit as a student . See Post Houses, Inc,
161 NLRB 1159, fn. I The addition of Schreier and subtraction of Hof
leaves the unit total at 20, as found by the Trial Examiner , and the
Union's majority on May 17 , when the Union's May 16 letter reiterating
request for recognition was received , at 12 out of 20
We correct the typographical error in the Trial Examiner ' s reference to
G.C. Exh. 2, the list of employees submitted by the Respondent to the
Regional Office in connection with its previously filed representation
petition . The date should be June 4 rather than June 14
bargain with the Union on or after May 17, and by
thereafter engaging in numerous independent unfair
labor practices directed towards undermining the
Union' s standing among the employees. Those
unfair labor practices, committed in violation of a
settlement agreement in which Respondent, inter
alia, agreed to refrain from engaging in such
conduct, destroyed the conditions necessary to the
timely holding of a fair election on the Respondent's
representation petition and are so coercive and
pervasive that they tend to preclude the likelihood
that a present election would be a more reliable
indicator of the employees' desires concerning
collective bargaining than the card majority
achieved before their commission. Accordingly, we
conclude that the imposition of a bargaining order is
essential to remedy the unfair labor practices and to
protect the statutory rights and interests of
employees.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, with
the additions indicated, and hereby orders that the
Respondent, Arrow Specialties, Inc., of St. Louis
County, Missouri, its officers, agents, successors and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as amended
herein.
1. Add the following as section 1(e) of the
Recommended Order and reletter the following
paragraph 1(f):
"(e) Posting notices which modify, alter, or
detract from notices posted pursuant to orders of,
or agreements with, the National Labor Relations
Board."
2. Add as the 12th paragraph of the Appendix the
following:
WE WILL NOT post any notices which modify,
alter, or detract from notices posted pursuant to
agreements with the National Labor Relations
Board.
'N.L R B v. Gissel Packing Company, 395 U S. 575
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding with
all the parties represented , was heard on November 18
through 21, 1968, at St. Louis, Missouri, on the
consolidated complaint of the General Counsel issued on
October 3, 1968,' which was subsequently amended, and
the amended answer of Arrow Specialties , Inc., herein
called the Respondent or Company. Two questions are
'The consolidated complaint is based on separate charges filed in Case
14-CA-4688 on May 21, 1968, and in Case l4-CA-4845 on October 2,
1968. Copies of the charges were duly served on the Respondent by
registered mail on the respective dates of filing
177 NLRB No. 92
ARROW SPECIALTIES, INC. 307
presented for decision - one, the validity of the Regional
Director's order withdrawing approval of a settlement
agreement previously executed by the parties, and the
second, whether the Respondent, both before and after the
settlement agreement engaged in unfair labor practices in
violation of Section 8(a)(l), (2), and (5) of the National
Labor Relations Act, as amended.' Although afforded the
opportunity, the parties waived oral argument but
thereafter the General Counsel and the Respondent filed
briefs in support of their respective positions.
Upon the entire record,' and from my observation of
the demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Missouri corporation , is engaged in
the manufacture, sale, and distribution of screw machine
products and related items at its plant and principal place
of business in St. Louis County, Missouri. In the course
and conduct of its business, the Respondent annually ships
finished products valued in excess of $50,000 directly to
points outside the State.
The Respondent admits for the purpose of this case,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. I
further find that the Respondent' s operations meet the
Board's standards for the assertion of jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District No. 9, International Association of Machinists
and Aerospace Workers, AFL-CIO , herein called the
Union , is admittedly a labor organization within the
meaning of Section 2 (5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Settlement Agreement; Its Revocation;
Subsequent Proceedings
On March 27, 1968,' the Union initiated its
organizational drive at the Respondent's plant by
'Insofar as relevant , Sec. 8 (a) makes it an unfair labor practice for an
employer
(I) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7;
(2) to dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it .
(5) to refuse to bargain collectively with the representatives of his
employees , subject to the provisions of section 9(a).
Sec. 7 provides, among other things, that
Employees shall have the right to self-organization , to form , join, or
assist labor organizations, to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and
. to refrain from any or all of such activities ....
Sec. 9(a) provides that
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the employees
in such unit for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment , or other conditions of employment
distributing handbills with authorization cards attached
among the Respondent's employees. Because of the
Respondent's alleged conduct to counteract these efforts,
the Union on May 21, filed an unfair labor practice
charge against the Respondent, alleging violations of
Section 8(a)(1), (2), and (5) of the Act (Case 14-CA-4688).
Based on this charge a complaint issued on July 3, which
was subsequently amended.
Without admitting that it had committed any unfair
labor practices, the Respondent on August 26 entered into
a settlement agreement, approved by the Regional
Director the next day, whereby it agreed to post a notice
to all employees and to comply with its terms and
conditions. The agreement further provided that
"(c)ontingent upon compliance with the terms and
provisions hereof, no further action shall be taken in the
above case." The notice the Respondent was required to
post recited the rights guaranteed employees by the Act
with the following assurances:
WE WILL NOT do anything that interferes with these
rights. You are free to join or not to join District No.
9, International Association of Machinists and
Aerospace Workers, AFL-CIO.
WE WILL NOT ask you anything about your or your
fellow employees' union activities or feelings.
WE WILL NOT threaten to take away any benefit you
now have if you choose a union to represent you.
WE WILL NOT give any benefits to you in order to
influence your feelings about a union. However, we are
not required to take away benefits we have already
given you.
WE WILL NOT tell you to go work elsewhere if you
want a union or condition pay raises on your not
signing an authorization card or get mad at you
because you went to union meetings.
WE WILL NOT suggest that you bargain directly with
the company rather than through a union or direct or
encourage you to form a committee to bargain with us
and we will withdraw our recognition of the employee
committee.
As part of the settlement, the Union, with the Regional
Director's approval, withdrew the 8(a)(5)
refusal-to-bargain portion of its previously filed charge
and the parties entered into a stipulation for certification
upon consent election (Case 14-RM-338). This stipulation
provided for an election to be held on October 4 in a
production and maintenance employee unit.
In accordance with the Settlement Agreement, the
Respondent posted the Notice To All Employees.
However, alongside of this notice, it simultaneously posted
the Settlement Agreement, although not required to do so,
and its own notice over the name of its president, Paul J.
O'Brien, addressed "TO OUR EMPLOYEES" which
read, as follows:
Almost 4 months ago, we asked the N.L.R.B. to hold
an election here. Up until now, the Machinists Union
blocked your chance to vote by charges of unfair labor
practices it filed against this Company. If those charges
had been successful, you would never have had a chance
to vote.
testimony herein , to which no party has filed objection , is hereby granted
in the respects indicated in said motion , except that one of the requested
corrections is erroneously designated in the motion as appearing on p 429,
1. 43 instead of 1. 3.
'The General Counsel' s motion to correct the official transcript of 'Unless otherwise indicated , all dates refer to 1968.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because we always felt you have the right to vote and
should not be deprived of it, the charges against this
Company have been settled . That is the reason for the
"notice" posted here on the bulletin board . As you can
see, it does nothing more than tell you what your rights
are; namely , to decide for yourself whether or not to
join the Union.
The "notice" was agreed to by this Company only so
you can vote. There is no indication that this Company
has done anything wrong . The "settlement agreement,"
which was a part of the "notice," is posted immediately
below and you can see what it means for yourself.
A secret ballot election will be held here on October 4.
No one will know how you vote. Whether you signed a
card or not , you will have complete freedom to vote no.
If you have not signed a card , there is no reason to do
so since there definitely will be an election.
If anyone tries to get you to sign a card or to vote for
the union by threats of losing your job or other
"punishment ," which threats we know have been made
to some of you, don ' t believe such statements . They are
unlawful and should be reported to the N.L.R.B. As
you know , we can't answer any questions you may have
about the union . We do intend to let you know how we
feel about it in the next few weeks and particularly why
we feel you don 't need a union here . (The indicated
underlining appeared in the side notice.)
Both notices and the Settlement Agreement remained
posted for the 30-day period the official settlement notice
was required to be posted.
On October 1, the Regional Director indefinitely
postponed the scheduled election . The next day, the Union
filed a charge in Case 14-CA-4845, in which it revived its
previous unlawful refusal to bargain allegations against
the Respondent and charged other acts of interference,
restraint, and coercion of employees.
On October 3, the Regional Director issued an order,
withdrawing his approval of, and vacating , the settlement
agreement on the ground that he had received evidence
that the Respondent "had committed acts constituting
noncompliance with the terms of the settlement agreement
and had breached the settlement agreement." On the same
day the consolidated complaint in this proceeding issued,
alleging presettlement unfair labor practices. The
consolidated complaint was thereafter amended to include
further 8 (a)(1) allegations.
The Respondent challenges the Regional Director's
action in setting aside the settlement agreement and the
litigability of its presettlement conduct. It argues that it
had fully complied with the terms and conditions of the
settlement agreement and denies that it engaged in any
unfair labor practices subsequent to its execution or
otherwise violated its provisions . The General Counsel, on
the other hand , supports the Regional Director 's action,
urging that the above quoted side notice which the
Respondent had posted next to the Board notice , as well
as the Respondent's subsequent unfair labor practices,
justified the revocation of the Settlement Agreement and
the issuance of the consolidated complaint herein.
There is no question that a Regional Director may not
set aside a settlement agreement and issue a formal
complaint unless the charged party has failed to comply
with its terms or committed further unfair labor practices.
Specifically, the Board has found noncompliance where
the charged party posted alongside of the settlement
notice his own notice which tended to detract from the
effectiveness of the settlement notice, thereby defeating its
very purpose to assure employees that their statutory
rights would be respected .' In the present case, the
Respondent's private notice emphasized to employees that
the Union' s unfair labor practice charges had blocked
their chance to vote and that, had those charges been
"successful ," the employees "would never have had a
chance to vote." Obviously, this latter statement is not a
true exposition of the law or employee rights . Moreover,
the Respondent ' s notice advised the employees that it had
settled the charges only because it did not want to see
them deprived of their right to vote and in order to enable
them to exercise this right . Thus, the Respondent unfairly
cast the Union in the role of a culprit whose efforts to
foist itself on the employees as their bargaining
representative , without an election , was frustrated by the
Respondent' s agreement to settle the case . Finally, instead
of assuring employees that it intended to abide by its
commitments in the settlement notice, the Respondent
asserted that there was no "indication [in the notice] that
this Company has done anything wrong," and thus
implied that the conduct he had agreed not to engage in
was permissible.
All things being considered , I find that the
Respondent's notice was the type of notice that, tends "to
minimize the effect of the Board' s notice . [and]
suggests to employees that the Board 's notice is being
posted as a mere formality and that Respondent's true
sentiments are to be found in its own notice , not the
Board's."` Clearly, such a notice defeats the very intent
and purpose of the settlement agreement to assure
employees that the Respondent would not intrude upon
their self-organizational rights . Accordingly, I find that
the Regional Director was fully warranted in vacating the
settlement agreement and in proceeding to litigate the
alleged unfair labor practices. In any event , as will be
later discussed , the Respondent actually engaged in unfair
labor practices subsequent to the execution of the
settlement agreement and in breach of its terms. This
constituted a justifiable ground for invalidating the
settlement agreement .' We now turn to the evidence
relating to the Respondent ' s alleged unfair labor practices.
B. Presettlement Conduct
1. General Manager Paul P. O'Brien ' s response to
the Union' s appearance at the plant
As indicated above, the Union initiated its
organizational campaign on March 27 . Paul P . O'Brien,
the Respondent's general manager , known to the
employees and referred to herein as O'Brien , Sr.,' first
became aware of it on April 19 when the Union resumed
the distribution of handbills with authorization cards
attached among the employees outside the plant.
Manifestly , O'Brien , Sr., was not too happy over the
prospect that the plant might be unionized . On or about
April 20, Foreman Hogan' informed employee Ray N.
'Bangor Plastics, Inc., 156 NLRB 1165, 1166-67, enforcement denied
392 F.2d 772 (C. A. 6); The Paymaster Corporation, 162 NLRB 123,
125-128 ; Montgomery Ward & Co., 162 NLRB 369, 376-377, 380.
Although the employer's notice in Bangor Plastics is factually
distinguishable from the one in the present case , the Trial Examiner is, in
any event, bound by Board precedent.
`Bangor Plastics, Inc., supra. 1167.
'Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-255.
'Paul P . O'Brien, is the father of Paul J . O'Brien , the Respondent's
president, who is known to the employees as O'Brien , Jr., and will also be
referred to herein by that designation.
'Hogan's status as a supervisor will be later discussed.
ARROW SPECIALTIES, INC.
Dahlquist that O'Brien, Sr., wanted to speak to him
concerning his attitude toward the Union. Dahlquist
thereupon went to O'Brien, Sr.'s, office and informed him
that the Union "stinks" and that he did not want it.
O'Brien responded that he felt the same way and inquired
whether Dahlquist knew who brought the Union in.
Dahlquist replied that he did not know.
On or about the same day, according to employee Isaac
W. Perryman, he walked past O'Brien, Sr., and Hogan,
who were engaged in conversation in front of the welding
room, and overheard O'Brien, Sr., telling Hogan that if
the Union came in, "we might lose some of our facilities."
Perryman also testified that his hearing was impaired, that
he was approximately 8 feet from O'Brien, Sr., when he
heard the remarks in question, and that another employee,
Claus Coke, was at least 12 to 14 feet away operating a
machine. O'Brien, Sr., denied making the statements
imputed to him. In view of Perryman' s hearing difficulties
and the area and circumstances where the statements were
purportedly made, I find his testimony in this regard not
sufficiently reliable to be credited.
On or about April 21, employee John W. Childers told
Hogan that he felt left out because O'Brien, Sr., spoke to
the other employees concerning the Union but not to him,
and suggested that Hogan convey this message to O'Brien,
Sr. Thereafter, O'Brien, Sr., approached Childers at the
turret lathe he was operating and opened the conversation
with a comment that he guessed that Childers was aware
that the Union was "handbilling the place." O'Brien, Sr.,
then explained that the reason he had not spoken to him
before was that he knew pretty well how Childers felt
about the Union because Childers had supported the
Union's prior organizational efforts. Childers agreed that
he had previously favored the Union. O'Brien, Sr., then
remarked that he personally would not favor the Union
but would consider the kind of treatment he had received
from the Company. After alluding to raises and other
benefits the Respondent had given Childers, O'Brien, Sr.,
added that "if there were any employees out there who
wanted a union shop so much, why didn't they just quit
and go work in a union shop." O'Brien, Sr., then
questioned Childers regarding complaints and problems he
and other employees had. In reply, Childers suggested that
O'Brien "go around and ask" the employees himself."
On or about April 22, O'Brien, Sr., summoned
employee Claus Coke to his office. There O'Brien, Sr.,
commenting that Coke was always free to come to his
office with his "gripes" any time he desired, asked how
"this thing" got started. When Coke answered that he did
not know, O'Brien, Sr., expressed incredulity and inquired
who comprised "the committee out there," apparently
alluding to the employee committee mentioned in a union
handbill." Coke denied knowledge of the existence of any
employee committee. This elicited O'Brien, Sr.'s, retort
that there had to be a committee "to get this thing
started" but Coke persisted in his denial . O'Brien, Sr.,
stated that he could not understand "what was bugging
the people" to want a union . When Coke answered that
"The foregoing findings regarding O'Brien , Sr.'s, conversation with
Childers are based on the latter's testimony which I find worthy of belief
O'Brien , Sr., did not contradict Childers in specific respects but admitted
that he asked Childers " if he wasn ' t satisfied in everything "; that he
pointed out how Ch,lders' j ob had "improved since he [O' Brien , Sr.] had
been with " the Company; that he inquired of Childers why the employees
wanted a union , and that when Childers answered that he "heard a few
gripes around there," O'Brien , Sr, interjected "[w[hy don' t somebody
come and talk to me about it."
309
he did not know, O'Brien, Sr., inquired how he should
talk to employees. Coke replied that he did not think
O'Brien, Sr., should call them in one at a time and
suggested that he assemble the employees in a group and
in that way find out what was wrong. This suggestion did
not satisfy O'Brien, Sr., who asserted a preference to talk
to the employees individually because "people don't seem
to speak feelings in a group." The conversation ended
with Coke's remark that it was up to O'Brien, Sr., to do
as he wished."
On April 22 or so, Foreman Hogan told employee
Jerry Williams to shut down his machines and to see
O'Brien, Sr. in his office. Upon his arrival, O'Brien, Sr.,
questioned Williams concerning employee complaints and
why they needed a union . O'Brien, Sr., also inquired
whether he knew who had started the union and, when
Williams denied having such knowledge, O'Brien, Sr.,
commented that he had seen him "talking to the other
employees more than usual" and thought that perhaps he
was the one who had started it. Williams denied the
accusation and, despite O'Brien, Sr.'s, repeated
interrogation along this line, Williams adhered to his
denial. Reminding Williams of the pay raises and benefits
he and other employees had received, O'Brien, Sr., again
asked why the employees needed a union. O'Brien, Sr.,
also declared that, if the union got into the plant, the
Company would probably have to cut out all overtime in
order "to pay what it would cost to get the union to come
in. . .they couldn't afford both" the union and the
overtime. "
Probably on May 2,'° employee Virgil Burkett told
O'Brien, Sr., that he needed a raise. O'Brien, Sr., voiced
doubt that Burkett was entitled to one, observing that
Burkett was "getting pretty old." Burkett replied that he
was fully aware of it but that he was also doing a
satisfactory job. The conversation ended with the remark
that "we will see."
About a week later, Foreman Hogan sent Burkett to
O'Brien, Sr.'s, office. Referring to his earlier request for a
wage increase, O'Brien, Sr., told Burkett that he wanted a
truthful answer to one question before acting on the
request. After Burkett assured O'Brien, Sr., that he would
be truthful, O'Brien, Sr., inquired whether he had sent in
"one of those union cards." When Burkett responded in
the negative, O'Brien, Sr., stated he would give him a
dime raise, adding that he would also give the same raise
to Perryman, another elderly employee. During this
conversation, Hogan entered the office and was advised by
O'Brien, Sr., of his intention to give Burkett and
"A handbill distributed by the Union on April 19 among the employees
stated that "[w]hen employees in a plant wish to be organized into a
GOOD STRONG UNION, they contact the Union Organizers. Your
committee has contacted District No. 9, I.A.M A.W. Organizers."
However , there is no evidence that a committee of employees was actually
formed for such a purpose, although the record shows that several
employees were interested in being organized and that one of them at least
had communicated with the Union.
"The above account reflects the sum and substance of Coke's testimony.
O'Brien, Sr., could not recall having had the conversation in question.
Coke impressed me as a candid and trustworthy witness not likely to
fabricate testimony against his employer. I accordingly credit his account.
"The foregoing testimony , which I credit, was given by Williams and
was uncontradicted O'Brien , Sr., simply testified that he "might have"
had a conversation with Williams on or about April 22 in which he asked
him how he felt about the Union.
"Although Burkett and O'Brien , Sr., testified that their conversation
occurred on or about April 25, it appears from Burkett's other testimony,
that it occurred after the conclusion of the second employee meeting called
by O'Brien, Sr., which I later find was held on or about May 2
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perryman a dime raise, if Hogan had no objections.
Hogan stated that it was "all right" with him. Thereafter,
the two employees received the promised raise."
In the course of a conversation that O'Brien, Sr., had
with employee Coke on April 29 concerning the
postponement of a meeting with an employee committee,
whose formation will be discussed below, O'Brien, Sr.,
asked Coke whether he knew if anybody had signed union
authorization cards. Upon receiving Coke's negative reply,
O'Brien, Sr., requested Coke to look and ask around to
ascertain how many had been sent in to the Union. Coke,
however, declined to do so for the asserted reason that he
had no right to pry into other people' s business.
About April 30, O'Brien, Sr., approached Doyle D.
Stevenson, who was then employed on the second shift,
and inquired how the Union was able to come to the plant
to organize it. Stevenson replied that apparently an
employee sought union representation. When Stevenson
informed O'Brien, Sr., that he was a union member, the
conversation terminated."
On May 8, after working hours, Coke attended a union
meeting at the VFW hall." The next day, O' Brien, Sr.,
called Coke to his office and, according to Coke's
testimony, the following occurred: Prefacing his remarks
with the statement that it was none of his business what
Coke did on his own time, O'Brien, Sr., told Coke that
"it did kind of burn... [him] up" that Coke went to that
union meeting . Coke promptly reacted with agreement
that it was none of O'Brien, Sr.'s, business what he did on
his own time and accused O'Brien, Sr., of using spies to
report his attendance, specifically naming Oliver Liptai,
an estimator in the Company's employ." O'Brien, Sr.,
denied the accusation and, in the ensuing conversation,
asserted that the Union "would actually hurt the company
if. . .[it] came in"; that the employees "would stand to
lose an awful lot of overtime"; and that, in particular,
Coke and his wife, Leola, who was also in the
Respondent's employ, would lose approximately $200 a
month in overtime.
O'Brien, Sr., admitted having had the above
conversation in which Coke accused him of using Liptai to
spy at the union meeting . However, O'Brien, Sr., testified
that the subject came about because Coke "kept telling . . .
[him] all the time" that neither he, nor his wife, nor his
brother- in-law , Billy Roberts, another employee, was in
favor of the Union." O'Brien, Sr., further testified that he
told Coke that Coke's protestation didn't "make sense" to
him because he knew that Coke had "attended those
meetings"; that at this point Coke accused him of using
Liptai as a spy; and that he (O'Brien, Sr.), denied the
accusation, stating that it was "by accident" that he found
"The foregoing account is based on Burkett ' s testimony Except with
regard to his inquiry into the union authorization card , O'Brien , Sr.'s,
version does not in significant respects conflict with Burkett ' s. When
questioned by the Respondent' s attorney whether he had asked Burkett if
he had signed one of those union cards at the same time he (O'Brien, Sr ),
gave Burkett the raise, O'Brien, Sr., testified , "I don ' t think so, I don't
even remember that but it' s possible I might have asked him that." I find
Burkett an honest witness whose recollection of the conversation in
question is creditable
"These findings are based on Stevenson ' s undisputed testimony, which i
credit However , I do not accept Stevenson's additional testimony
concerning O'Brien , Sr's, other purported remarks relating to employees
losing overtime which were not mentioned in the pretrial affidavit he had
given to a Board Agent.
"This meeting was announced in a handbill the Union had circulated at
the plant on May 6
"As will later be discussed , Liptai ' s placement in the bargaining unit is
in issue
out.20 In addition to the foregoing, O'Brien, Sr., gave the
following answers to questions put to him by the
Respondent's attorney:
Q. At this time, did you say anything to Mr. Coke
about if the union would come in, the employees would
start to lose a lot of overtime?
A. I might have told them that in order to compete
competitively, we would have to put more people on the
night shift or we would have to figure higher prices and
take a lower amount of business which would naturally
lower our hours.
Q. This is if the union came in and a union contract
was signed?
A. That's right.
Coke impressed me as a forthright witness whose
recollection of his conversation was more accurate than
O'Brien, Sr.'s. I find Coke's version plausible and reveals
conduct consistent with O 'Brien , Sr.'s, other efforts to
undermine the union drive in the plant. I therefore credit
Coke's testimony.
2. O'Brien, Sr.'s, first meeting with employees;
formation of the Committee
On April 20, about 11:30 in the morning, O'Brien, Sr.,
assembled the employees in the toolroom which also
served as the employees' lunchroom.31 He began his
address with the declaration that he was burned up by a
union handbill which stated that the employees were being
cheated by the Company. Expressing the view that the
accusation was an insult to the employees' intelligence,
O'Brien, Sr., asserted that he had treated them fairly, paid
them above union rates, and furnished them with 9 hours
of work a day with overtime for work performed in excess
of 40 hours. He pointed out that the employees "didn't
need a third party in there," that the Company and
employees "had been getting along all right," and that, if
any employee thought he was being cheated, he should get
a job in a union shop because the Company did not want
employees making trouble. O'Brien, Sr., then stated that
he heard that some employees had complaints and
"gripes" and proposed that the employees select a
committee which would receive their complaints and
discuss them with him. Thereupon, O'Brien, Sr., Liptai,
and Hogan, who were also present, left the meeting.22
"Under cross-examination Coke, who had signed a union authorization
card on April 19, testified that he never told O'Brien , Sr , that he had no
affiliation with the Union, although he did tell him "at one time at the
very beginning" that he was not particularly interested in the Union but
that, if a majority wanted it, he would be for it too When pressed to fix a
date when he made those statements , Coke "guessed" it would be in June
or July after he had signed the card.
"According to O'Brien, Sr , he learned of Coke's attendance at the
union meeting from his secretary, Kay Foster, who assertedly was in the
vicinity of the VFW hall to pick up her children at her babysitter's home
at the time of the scheduled union meeting O'Brien , Sr , testified that
Foster told him that she saw employee Huntsman , who was then out sick,
entering the hall with other "fellows" "to have a beer" and that he
(O'Brien , Sr.), just "grinned at her and laughed and said he wasn't going
in to have a beer , just forget about it" Apart from the fact that O'Brien,
Sr.'s, testimony does not indicate that he explained the source of his
knowledge to Coke in the course of their conversation , it also does not
show that Foster identified Coke as one of the "fellows" who was with
Huntsman Moreover , although Foster appeared as a witness , she was not
questioned with respect to the above incident
"O'Brien , Sr, testified that he did so at Foreman Hogan' s suggestion
and because of the handbills the Union had distributed.
"The foregoing findings represent a composite of the testimony of
employees Claus Coke, Dahlquist , Childers, Huntsman, Williams, and
Leola Coke , and General Manager O ' Brien , Sr., which I find credible
ARROW SPECIALTIES, INC.
A committee was then formed on which employees
Coke, Childers, and Dahlquist volunteered to serve.
During the lunch period that followed the meeting,
employees submitted to the Committee their grievances
and complaints which Coke and his wife subsequently
reduced to typewritten form. Several days later the
typewritten list of grievances was submitted to O'Brien,
Sr.
3. The Respondent ' s attempt to legitimatize the
Committee ; the Committee 's demise
On April 29, O'Brien, Sr., was supposed to meet with
the Committee to consider the employees' grievances.
However, O'Brien, Sr., informed Coke of his inability to
do so on that day because he was too busy with other
matters. The next day, April 30, O'Brien, Sr., again
advised Coke that their meeting would have to be
postponed for the reason that he had a doctor's
appointment after which he had to see someone to find
out whether he could meet with the Committee because he
thought he "broke the law when. . .[he] got this
committee together because that would be something like
a company union."
On May 1, O'Brien , Sr., arranged with Coke to meet
with the Committee for 5 minutes or so to explain
something to them. Thereafter, Coke, Childers and
Dahlquist , as members of the Committee , met with
O'Brien , Sr., in the company president 's office . O'Brien,
Sr., informed the Committee that he had just come from
his attorney's office and was advised that the Company
could not meet with the Committee on company time and
could not pay the Committee for time spent in attending
such meetings . He then showed the committeemen a
document drafted by the attorney entitled "Memorandum
of Understanding" which he stated they had to sign before
a meeting could be held. This memorandum, dated May
1968, read:
Arrow Specialties , Inc., hereby agrees to discuss with
a Committee of Employees , any matters they wish to
discuss concerning conditions of employment at the
Company, provided that the following rules are
observed and agreed to:
1. The formation of the Committee of Employees
was at the sole suggestion of one or more employees
and was in no way suggested, fostered , or nurtured by
the Company.
2. The Committee of Employees will decide for itself,
its own composition , members , spokesmen and the like
and the Company shall have no part in , shall not be
consulted about and shall have no control whatsoever
over who the Committee members are and/or how they
were selected.
3. The Committee of Employees and the Company
shall meet whenever mutually agreeable but in no event
shall the meeting take place on Company time and the
members of the Committee shall not be paid for the
time they participate in said meetings.
4. The Committee of Employees agrees not to use
any Company equipment or materials when they are
acting in the capacity of a member of the Committee of
Employees.
Because of lack of corroboration , I do not adopt Leola Coke 's additional
testimony that on this occasion O'Brien , Sr , threatened to cut out
overtime and send employees home when work ran out should the Union
get into the plant.
311
The memorandum provided space for the signatures of the
Respondent and each committeeman.
The committeemen refused to sign the memorandum
until they first talked it over among themselves. Probably
at this juncture in the conversation, O'Brien, Sr.,
mentioned that the Company had been receiving letters
from the city of St. Louis requesting information
concerning employees subject to the city earnings tax.23 He
told them that if he complied with such requests, which he
did not particularly want to do, he would have to open up
his books to the city and thereby disclose the identity of
employees owing city taxes. Coke and Childers were
among the employees who were delinquent in the payment
of these taxes.
In the course of their conversation, O'Brien, Sr., also
observed that after the Committee signed the paper he
and the Committee could meet outside the plant at lunch
or he could send his secretary out for lunch the following
day and they could `meet in the office. O'Brien, Sr., also
referred to the list of grievances the Committee had
previously submitted to him and indicated that he was
inclined to grant at least 80 percent of the demands.
Before leaving, the Committee told O'Brien, Sr., that they
would let him know whether they would sign the
memorandum."
The following morning , May 2, O'Brien, Sr., came to
Coke's machine, assured him that there was "no harm in
signing this paper" because it was drafted to protect the
Committee, as well as himself, and offered to arrange for
Coke to speak to the Company's lawyer. Coke rejected
the offer, saying that "since there are laws being broken
and lawyers being called in," he did not want to have any
part of it and that they would just disband the Committee
and forget the whole thing. O'Brien proposed that the
committeemen come to his office individually to read the
memorandum again and decide for themselves whether or
not to sign it. Coke agreed.
Later in the day, Coke went to O'Brien, Sr.'s, office
and read over the first numbered paragraph 1, quoted
above, which exonerated the Company from responsibility
for the Committee's formation. After doing so, Coke
asked O'Brien, Sr., whether, if he signed that paper and
75 or 90 percent of the employees wanted a union, his
action would give O'Brien, Sr., the right to tell the union
organizers to leave because the Committee represented the
employees . Although O' Brien , Sr., answered in the
negative , Coke disagreed and refused to sign . 25 The same
"The city of St. Louis has an earnings tax of one percent of gross
income which is apphcable to city residents , regardless of their place of
employment . Employers located in the city are required to make
deductions from the pay of employees working there However, an
employer , such as the Respondent who is located outside the city, is not
required to make any deductions for city tax purposes.
'The above account is denved from Coke's testimony, which was
corroborated in various respects by employees Childers and Dahlquist, and
which I find is more reliable and complete than the versions given by other
witnesses . O'Bnen , Sr., admitted requesting the Committee to sign the
memorandum , stating that it was a necessary condition for meeting with
them , and that the Committee refused to sign However , he denied that he
mentioned anything about the city earnings tax on this occasion, although
he had previously posted on the bulletin board letters received from the
city of St Louis dealing with the subject, and that, in answer to a few
employee inquiries , he assured them that he would not report them or
permit the City to see his books unless he was forced to do so . Childers
and Dahlquist, on the other hand , support Coke' s testimony that the
subject of the city earnings tax was brought up at the time the
memorandum was presented for signature . I accordingly credit Coke's
testimony, as related in the text above
"The findings concerning Coke's conversations with O' Brien , Sr., are
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, Dahlquist also went to O'Brien , Sr.'s, office to read
the memorandum more carefully . While reading it,
O'Brien , Sr., told him that paragraph 1, which indicated
that he (O'Brien , Sr.) did not suggest forming the
Committee , was not quite true but that everything else
was true. O'Brien , Sr., further stated that, if Dahlquist
had any questions , he could call O'Brien , Sr.'s, attorney."
Following Coke' s and Dahlquist' s individual
conversations with O'Brien , Sr., the Committee discussed
the matter among themselves the same day and decided
not to sign the memorandum . Thereupon , Dahlquist
communicated this decision to O'Brien , Sr. As a result of
the Committee ' s refusal to sign the document, the
Respondent never met with the Committee to discuss the
previously submitted grievances and the Committee ceased
functioning.
4. The May 2 employee meeting; changes in terms
and conditions of employment ; withdrawal of benefits
As indicated above, the Committee had presented to
O'Brien, Sr., a list of employee grievances and demands
to improve their terms and conditions of employment.
Since the Committee refused to sign the Memorandum of
Understanding, O'Brien, Sr., called a meeting of
employees on May 2 about 4 p.m. after the close of the
day shift to announce his decision respecting their
demands. Using the list as a guide, O'Brien, Sr., discussed
each demand separately. He agreed to do the following:
(1) grant employees a 3-week vacation after 10 years of
service instead of 7 years, as requested;" (2) supply
additional shop towels, although he thought the employees
were wasting those already being furnished to them; (3)
procure more and better safety goggles and call in a safety
inspector to improve the Company's safety program; (4)
provide better lighting facilities by cleaning and replacing
lights and installing additional ones; and (5) institute for
the first time a sick leave policy which granted employees
one half day sick leave per month which could not be
accumulated beyond one year, although employees
requested a 3-year accumulation period. On the other
hand, O'Brien, Sr., rejected the employees' demands for
overtime pay for work in excess of 8 hours per day; an
improved system of wage increases; Blue Shield coverage
at Company expense, although he stated that he would
reconsider this matter at some future time; and an
increase in premium pay for night-shift work.
After O'Brien, Sr., finished his talk, O'Brien, Jr., made
some comments of his own. Expressing surprise at the
small number of grievances that had been presented, he
stated that he saw no reason for bringing "a third party
into the act" since "this was something ... [the Company
and the employees] could resolve between" themselves. He
also said that "the door was open at any time, and . .
.[the Company] would be willing to discuss with them
salary increases, or any other complaints they had . . .
[and] that the Company . welcome[s] . . . [its]
employees calling to . [its] attention things . . . [it
doesn't] recognize ... in the plant.""
According to O'Brien, Sr., the only action subsequently
taken by him with respect to the employee complaints was
to furnish the employees with more towels; to install a
number of lights, leaving a few more still to be installed;
and to procure new safety glasses.
In June, employee Dahlquist had a conversation with
O'Brien, Sr., in which he asked O' Brien , Sr., whether he
was entitled to sick leave for the time he took off from
work the day before to take his wife to the hospital.
Dahlquist testified that O'Brien, Sr., answered, "Oh, no,
anything discussed at the last meeting [apparently
referring to the May 2 meeting] is now null and void since
you turned your back on us." r9 Denying making the
quoted remark, O'Brien, Sr., testified that what he did say
to Dahlquist was that his sick leave proposal was
applicable to the employees only and not where their
wives were involved and that, in any event, the proposal
was not put into effect because he had not heard from the
employees regarding it and unfair labor practice charges
had been subsequently filed against the Company.
A difficult credibility problem is obviously presented by
this conflict in testimony. Considering O'Brien, Sr.'s,
inclination to engage in conduct to undermine the Union's
organizational efforts and the fact that Dahlquist
appeared to me to be a person with a better memory of
the event than O' Brien , Sr., and not one who would
contrive a story, I credit Dahlquist's testimony. In so
doing, I am mindful of the fact that there is nothing in the
record to indicate that the sick leave policy was intended
to apply to Dahlquist's situation. On the other hand,
whatever the sick leave policy, there is also no evidence
that its effectiveness or the granting of the employees'
other demands at the May 2 meeting was made contingent
upon the employees' acceptance.
5. The Union' s requests for recognition
On May 13, union business representatives, Kermit
Burrows and James Bagwell , appeared at the
Respondent's plant where they met General Manager
O'Brien, Sr. After introducing themselves, Burrows stated
that the Union represented a majority of the Respondent's
employees in a production and maintenance unit and
requested recognition as the employees' exclusive
bargaining agent . O'Brien, Sr., was then handed a
standard form Letter of Recognition, which described the
unit in detail, for him to sign . After reading it, O'Brien,
Sr., stated that he was the wrong person to contact since
his son, O'Brien, Jr., and a Mr. Reynolds owned the
business and both were out of town but would return on
May 15. Burrows then replied that he and Bagwell would
return on that date. In the course of the conversation,
O'Brien, Sr., mentioned that there were approximately 20
to 23 employees in the Company's employ. Before leaving,
based on the former's credited testimony . According to O'Brien , Sr., the
only conversation he had with Coke concerning the memorandum was at
his meeting with the Committee . He also testified that he did not make the
statements imputed to him by Coke, as indicated above, although he
"might have said something like" there was no harm in signing the
document, which was intended to protect Coke, as well as himself.
'The above findings are based on Dahlquist's credited testimony.
"No employee , however , was then eligible for the 3-week vacation for
the reason that the Company was then in existence only 8 years It is also
noted that no testimony was presented concerning the other employee
vacation proposals , except with respect to employee Pamela Moore'a
absence due to pregnancy , which will be later discussed.
'The above embodies quotations from O'Brien , Jr.'s, testimony I find it
unnecessary to determine , as Coke testified, whether O'Brien, Jr., also
made certain antiunion remarks in view of the fact that such statements do
not appear to be coercive or more than a prediction of economic
consequences that follow from union organization
"It is not contended that the sick leave offered by O'Brien, Sr., actually
applied to Dahlquist's situation On cross-examination by the Respondent's
counsel, Dahlquist testified that he signed a union authorization card on
July 29, 1968, for the reason that O'Brien , Sr., had gone back on his word
when he said everything was null and void , although he (Dahlquist) was
previously opposed to the Union
ARROW SPECIALTIES, INC.
the Union's representatives apprised O'Brien, Sr., that
they were fully aware of the Company's attempts to
bargain with the employees, to form a committee, and to
induce the committeemen to sign a statement exonerating
the Company from responsibility for forming the
Committee. O'Brien, Sr., however, insisted that the
employees "came to" the Company on their own volition.
On May 15, Burrows and Bagwell returned to the plant
where they conferred with the Respondent's president,
O'Brien, Jr., in O' Brien , Sr.'s, presence. Burrows repeated
the Union's majority claim and requested O'Brien, Jr., to
sign the form Letter of Recognition, which was handed to
him. O'Brien, Jr., read this document and returned it,
questioning the Union's asserted majority. Burrows,
thereupon, offered to submit the signed authorization
cards, which the Union had received from employees, to a
neutral third party to substantiate the Union's majority
claim. O'Brien, Jr., however, rejected this offer; stated
that, if the Union believed it had a majority, it should
submit to a Board-conducted election; and declared that
he would not be coerced into recognizing the Union
without an election. Burrows disavowed any intention to
coerce him and assured him that this was strictly a
business matter and that personal feelings were extraneous
since they might have to bargain with each other at some
future date. He also declined to pursue Board election
procedures and declared that he knew that the Company
had already bargained with employees in the unit and that
it was trying to dissipate the Union's majority status. On
this note, the meeting ended.
The next day, Bagwell sent the Respondent a letter
which was received on May 17, confirming the Union's
May 15 oral request for recognition, repeating its offer to
submit to a card check by a neutral third party, and
asserting its readiness to institute negotiations. On the
same day (May 16), O'Brien, Jr., sent the Union a letter
in which he reiterated his previously expressed doubt of
the Union's majority status and justified his refusal to
recognize the Union on the all too familiar ground that
cards were unreliable proof of employees' true desires for
union representation. In addition, he wrote that he
declined recognition because he had serious questions
concerning "the proper scope and composition of the
appropriate bargaining unit . Concluding, O'Brien, Jr.,
declared his willingness to bargain with the Union if it
won certification after a Board election.
On May 16, the Respondent also filed a representation
petition for an election in a production and maintenance
unit (Case l4-RM-338). The Union, in turn, filed an
unfair labor practice charge against the Respondent,
alleging, among other violations, an unlawful refusal to
bargain (Case 14-CA-4688).
6. The contemplated promotion of employee Coke
Coke was subpened by the General Counsel to appear
as a witness in Case 14-CA-4688 on August 27. A day or
so before Coke was to appear at the hearing, Foreman
Hogan came to Coke's machine and asked him to join
him in a cup of coffee, stating that he had something to
discuss with him. Coke agreed and, in the ensuing
conversation, Hogan told him that the workload was too
much for him (Hogan) to carry; that he needed an
assistant; that, after eliminating a number of named
employees for various reasons, he concluded that Coke
was his preference; that he had spoken to O'Brien, Sr.,
about making Coke his assistant;10 that O'Brien, Sr., was
agreeable to the idea; and that the promotion would
313
probably mean a wage increase. In answer to Hogan's
inquiry, Coke indicated that he was interested in that job.
Hogan then stated that, "when this mess . [was] all
over," he would get Coke as his assistant and suggested
that he talk to O'Brien, Sr., about this matter. According
to Hogan, prior to speaking to Coke, he had actually
discussed the matter with O'Brien, Sr., and Liptai.
Because the complaint case was settled, as previously
noted, no hearing was held. It also appears that nothing
further was said or done with respect to Coke's promotion
until the September 30 episode related below.
C. Postsettlement Conduct
1. The September 30 conversation
About September 27, Coke went to O'Brien, Sr.'s,
office to discuss the condition of several machines which
were badly in need of repairs. Both O' Brien , Sr., and Jr.,
were present. In the course of their discussion, O'Brien,
Jr., made it clear that the Company was in no financial
position to buy new machinery and that he and Mr.
Reynolds, owners of the Company, had exhausted their
funds to construct their new building."
Because of O'Brien, Jr.'s, statements concerning the
Respondent's financial problems, Coke returned to
O'Brien, Sr.'s, office on September 30. Coke informed
O'Brien, Sr., that he came there "in the interest of the
company" and suggested that, instead of writing campaign
letters to the employees, which the Company was doing, it
would be "better off" if O'Brien, Sr., would talk to the
employees and "just level" with, and inform, them of the
Company's financial situation, as O'Brien, Jr., had done
in their September 27 conversation. Thereafter, O'Brien,
Sr., after exacting a promise from Coke that nothing said
between them would leave the office or be communicated
to the Union, raised the subject of the election and asked
Coke how he thought the election would go. When Coke
replied that he had no idea, O'Brien, Sr., remarked that
he had written the names of employees on a piece of
paper and concluded that the election outcome would be a
"toss up," adding that he did not mind saying that at one
time he thought Coke, his wife, and Billy Roberts (Coke's
brother-in-law) would vote for the Union. O'Brien, Sr.,
then informed Coke that he was thinking of making him
.,an assistant foreman" and, just as Hogan had previously
done, reviewed the reasons for eliminating other employee
prospects. Coke then alluded to the embarrassing position
in which he found himself, pointing out that, not only was
he receiving various papers in the pending Board
proceedings," but, if he should go to O'Brien, Sr.'s, office
"It is not particularly important to determine whether Hogan
characterized the new job as assistant foreman, as Coke testified, or simply
as Hogan's assistant, as Hogan testified
"O'Brien , Jr , was obviously in error in placing this conversation "in the
end of April" According to O'Brien, Sr., Coke on this occasion also
expressed regrets for getting involved with the union. In what appears to
me to be in an exaggerated vein, O'Bnen, Jr., testified , as follows:
. we had been getting the impression from Claus Coke all along that
he didn ' t want any part of the union , he kept hammering at us with that,
that he wasn ' t interested in the union , he wished he had not gotten
involved . We were fearful to discuss anything with him, I mean we had
been on pins and needles with anything we said because we would be hit
with an unfair labor practice charge. .
Coke, on the other hand , testified that only once "at the very beginning,"
which he "guessed" was in June or July, he told O'Brien , Sr., that he was
not particularly interested in the Union, but that if a ma jority of the
employees wanted it , he would be for it , too. Considering the record in the
case, I credit Coke's testimony
"On behalf of the Committee , Coke was served with pleadings and other
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to speak to him , the men would think he was selling them
out, and if he should speak to the men , O'Brien, Sr.,
would think Coke was selling him out . O'Brien, Sr., then
proposed to have Coke substitute for Hogan as his
assistant when Hogan went on vacation the Monday after
the election scheduled to be held on October 4, and thus
replace Liptai who customarily substituted for Hogan in
his absence . In this manner , O'Brien , Sr., told Coke, he
would be eased into the assistant foreman job. O' Brien,
Sr., also advised Coke that the promotion would provide
for a pay raise of approximately 20 cents. However,
O'Brien , Sr., added that, if the election went "the other
way, then ... you have had your chance and you screwed
yourself." At this point Coke left the office."
2. The October 2 or 3 episode
About October 2 or 3, Coke was summoned to
O'Brien , Sr.'s, office where O'Brien , Sr., chided him for
revealing to employee Huntsman their discussion on
September 30 concerning the source of O'Brien , Sr.'s,
knowledge of Huntsman ' s and Coke's attendance at the
May 8 union meeting . O'Brien , Sr., observed that this
disclosure was contrary to Coke ' s promise that no part of
their conversation would leave the office. While Coke was
explaining his position , O'Brien, Jr., entered the office and
O'Brien , Sr., told his son that they were discussing how he
(O'Brien , Sr.) learned about Coke' s attendance at the
union meeting. This caused O'Brien , Jr., to remark that
"this union deal has got me going crazy." Throwing a
letter on his desk, O'Brien , Jr., continued , "They've even
got me charged with breaking the law . . . and I haven't
said anything to anybody."3' He then commented that,
although he knew one way they could "get rid of this
mess," he was not permitted to say it to Coke. However,
after being told by O'Brien, Sr., to proceed anyway,
O'Brien , Jr., stated that "if the persons who had signed
union authorization cards would go down to the Labor
Board and get their cards and tear them up, then the
union wouldn ' t have [a] majority.""
3. The cancellation of the election
On October 3, a day before the scheduled election,
O'Brien , Sr., approached Coke and Hogan in the plant
and stated that he had just received a telegram that the
papers in this case. In the same capacity , he signed the Settlement
Agreement and noted his appearance at the hearing before the Trial
Examiner
"The foregoing narration of the September 30 conversation is based on
Coke' s testimony which I find more convincing and accurate than O'Brien,
Sr 's, version.
,.It appears that at about this time , the Respondent was served with a
copy of the charge in Case 14-CA4845.
"The foregoing account is derived from Coke 's testimony . O'Brien, Sr.,
denied that he had any conversation with Coke in his office after their
September 30 conversation O'Brien , Jr., however, testified that on
October 2 or 3 he walked into his father 's office while his father and Coke
were engaged in a conversation , that Coke declared that he was
discontented with the Union and wished he had never gotten involved in it;
that he (O'Brien , Jr.) responded that, "if you 're so disenchanted with the
Union , why don' t you tell them so and tell them you 're no longer
interested in being a member of the union ; and that Coke made no reply
O'Brien , Jr, categorically denied that he told Coke to go to the Labor
Board or the Union to get his card and tear it up.
As I have indicated before , Coke impressed me as a persuasive and
honest witness whose recollection of the events in question is more reliable
than that of the O' Brien's. I, accordingly, credit his version.
election was called off. In reply to Coke's question,
O'Brien, Sr., said that he did not know why. At this
point, Hogan walked away and O'Brien , Sr., remarked to
Coke that "[t]hat kind of ties . [the Company's]
hands," that he would "like to give out raises to the
people" about which "they're all griping," but that he
couldn ' t "give out raises because of this union deal."
After stating that probably he could "go down to the
union representative and the Labor Board " to see if they
would let him give out raises , he added that he knew
"what would end this once and for all, if the fellows who
signed union authorization cards would go down to the
Labor Board and get these cards and tear them up, then
they wouldn't have nothing to go on." Coke thereupon
returned to his machine.1'
On the following Monday , October 7, Hogan left on
vacation and Liptai substituted for him, as he usually did.
The record shows that Coke was never appointed Hogan's
assistant . On October 25, the employees went out on
strike.
D. Concluding Findings
1. With respect to interference, restraint, and
coercion
There can be no doubt that an employer is privileged to
oppose a union ' s drive to organize his employees and to
become their bargaining agent provided he does not resort
to measures prohibited by the Act." I find that the
Respondent , principally through its General Manager,
O'Brien , Sr.," in an overzealous effort to prevent the
Union from establishing itself in the plant, engaged in a
course of conduct which exceeded permissible limits and
infringed upon its employees' self-organizational rights.
Without repeating the details , the Respondent , as found
above, extensively questioned employees concerning their
union membership, sympathies and activities , the identity
of employees responsible for bringing the Union into the
plant, the reasons prompting the union movement and the
anticipated outcome of the scheduled Board representation
election . Clearly, such interrogation, occurring as it did,
"in an atmosphere of active opposition to the union,
Bourne v . N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964),
without explanation to the employees of the purpose of
the questioning and under circumstances indicating that it
had no legitimate purpose, Edward Fields , Inc. v.
N.L.R.B., 325 F.2d 754, 758-759 (2d Cir. 1963), and was
unaccompanied by any assurance against reprisals, see
N.L.R.B. v. Lorben Corporation , 345 F.2d 346, 348 (2d
Cir. 1965)," amounted to a coercive and unwarranted
invasion of the employees' statutory right to organize.19
Also having an inhibiting effect on the employees'
freedom to choose a bargaining representative are those
"These findings are based on Coke' s credible testimony O'Brien, Sr.,
only admitted that , upon receiving a telegram over the telephone , notifying
him that the election was called off, he informed Coke of this development
but denied the rest of Coke' s testimony.
"Sec 8(c) recognizes this right in these terms-
The expressing of any views , argument, or opinion , or the dissemination
thereof, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
"As shown above, there are instances when President O'Brien , Jr , also
participated in this conduct.
"Bryant Chucking Grinder Company v. N.L.R.B, 389 F 2d 565, 567
(C A. 2), enfg. 160 NLRB 1526, cert. denied 392 U.S. 908; Strucksnes
Construction Co, Inc., 165 NLRB No 102.
ARROW SPECIALTIES, INC. 315
instances when the Respondent, with the evident purpose
of discouraging union support and demonstrating the lack
of need for union representation, solicited employee
complaints involving their terms and conditions of
employment; satisfied some of them; announced its
readiness to discuss wage increases and other "gripes" the
employees had; granted a wage increase to an employee as
a reward for not signing a union authorization card; and
advised another employee of his contemplated promotion
at a higher wage rate, if the Union lost the election. In
addition, in a further effort to pressure employees to
repudiate the Union, the Respondent warned them to quit
their jobs if they wanted a union ; threatened them with
loss of overtime if the plant were unionized;'" conveyed the
impression to an employee that his attendance at a union
meeting was under surveillance and reprimanded him for
attending the meeting ; impressed upon another employee
that his union activities were being watched; accused an
employee of initiating the union movement; requested an
employee to ascertain for the Respondent the number of
employees who had signed union authorization cards;
impliedly threatened employees to make available to the
City of St. Louis information relating to their earnings
affecting their city tax liability in order to induce them to
sign a document exonerating the Company from
responsibility for illegally sponsoring the formation of the
employee Committee; informed an employee that
previously promised benefits were withdrawn because the
employees turned their backs on the Respondent; solicited
employee withdrawal of union cards for the stated reason
to undermine the Union's majority status and thereby to
eliminate the Union from the plant and enable the
Respondent to grant employees wage raises; and placed
the blame on the Union for the Respondent's inability to
increase wages.
By reason of the foregoing conduct, whether viewed in
its totality or singly, I conclude that the Respondent
interfered with, restrained and coerced its employees in
violation of Section 8(a)(1) of the Act.
2. With respect to the formation of the Committee
As previously discussed , shortly after General Manager
O'Brien, Sr ., learned of the Union ' s organizational drive,
he called a meeting of employees , advised them that they
had no need for a union and proposed that they form a
committee to handle their complaints and grievances.
After O'Brien, Sr ., Foreman Hogan and Estimator Liptai
left the meeting , such a committee was established
composed of three employee volunteers . The Committee
promptly solicited grievances , which were thereupon
reduced to typewritten form and submitted to O'Brien, Sr.
Except for this grievance activity , the Committee never
functioned and, for all practical purposes , subsequently
disbanded because of the committeemen ' s refusal to sign a
statement exonerating the Respondent of any connection
with its formation.
I find , in disagreement with the Respondent's
contention , that the Committee was in nowise related to
the organizing committee mentioned in one of the Union's
handbills , nor was it an outgrowth of that body. On the
contrary , I find that it was the Respondent who initiated
"in so finding , I rely on O ' Brien , Sr's, statements to employee Claus
Coke which were made in the context of reprisal action to be taken by the
Respondent but not on O'Brien, Sr.'s, remarks to employee Williams
which were couched in terms of a prediction of the economic consequences
of unionization.
and inspired the formation of the Committee , undeniably
a labor organization as defined in Section 2(5) of the Act,"
and who then unsuccessfully sought to perpetuate its
existence . In these circumstances , I find that the
Respondent interfered with the formation of the
Committee and contributed support to it and thereby
violated Section 8(a)(2) and (1) of the Act.
3. With respect to the refusal to bargain
a. The appropriate unit
The parties are in agreement that the following
described unit is appropriate for collective-bargaining
purposes:
All production and maintenance employees at the
Respondent's plant at 155 Hanley Industrial Court, St.
Louis County, Missouri, excluding office clerical and
professional employees, guards and supervisors as
defined in the Act.
They also agree that 20 employees named in a list of 23
employees which the Respondent had submitted to the
Regional Office on June 14 in connection with its
previously filed representation petition (Case 14-RM-338)
belong in the bargaining unit. In dispute, however, is the
placement of Paul Hogan, Leonard Schreier, Pamela
Moore, whose names also appear on the list, and Oliver
Liptai, whose name was omitted from the list. It is the
position of the General Counsel and the Union that only
Moore should be included, whereas the Respondent would
exclude Moore but include the other three individuals.
Alternatively, the Respondent argues that if Hogan is
excluded as a supervisory employee, Doyle Stevenson
should be excluded for the same reason. We turn to a
consideration of these questions.
Hogan
The Respondent operates a contract machine shop
under the overall supervision of General Manager
O'Brien, Sr., whose responsibilities encompass not only
production, but also purchasing, shipping and other
nonselling functions. Directly under him in the shop is
Hogan who oversees the work of some 16 employees on
the day shift. On the basis of a work sheet received from
O'Brien, Sr., it is Hogan's responsibility to process,
schedule and assign jobs to be worked on the various
machines, furnishing the operators with the tools, cams
and other items needed to run the jobs. When the
occasion arises, Hogan is "a trouble shooter" who repairs
equipment and makes tools. He devotes more time
supervising the automatic screw machine operations than
the secondary operations" where additional work is
performed on the parts fabricated by the screw machines.
Although primarily assigned to the day shift, his duties
carry him over "quite a bit" to the night shift on which
about four employees are employed. As he does on the
day shift, Hogan lines up the jobs to be performed on the
night shift and selects the particular tools and cams to be
used on the different machines . Like the rank-and-file
"Sec. 2(5) of the Act includes within its definition of labor organization
any "employee representation committee or plan , in which employees
participate and which exists for the purpose , in whole or in part, of deahng
with employers concerning grievances, labor disputes , wages, rates of pay,
hours of employment, or conditions of work."
"Hogan testified that there is a "sort of leadman " who assists him in the
secondary department.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, Hogan wears work clothes and is paid an
hourly rate and overtime. However, he is not required to
punch a timecard which rank-and-file employees must do,
but at the end of the day notes the total number of hours
he had worked."
In addition to his production duties, Hogan interviews
applicants for employment and reports to O'Brien, Sr.,
whether or not they are acceptable. O'Brien, Sr., in turn,
does the actual hiring and determines the wage rate to be
paid the new employees. Hogan may either grant an
employee's request for time off or may tell him to ask
O'Brien, Sr. Oliver Liptai, whose status will later be
considered, testified that he thought that it would be
Hogan who "more or less" would get into "the area" of
making effective recommendations with respect to the
hiring, firing and promotion of employees, wage increases
and time off. Moreover, the record shows that on one
occasion O'Brien, Sr., informed employee Burkett that he
would grant him a wage raise only if Hogan
recommended it and then gave him the increase upon
Hogan's recommendation. The record further discloses
that Hogan also advised employee Coke that he was
considering him for promotion as his assistant after
eliminating other prospects. Finally, it is significant that,
when O'Brien, Sr., proposed at the April 20 meeting that
the employees select a Committee to handle their
grievances, O'Brien, Sr., accompanied by Hogan and
Liptai, left the room so that the employees could act on
the proposal.
In view of the foregoing, I find, contrary to the
Respondent's contention, that Hogan possesses the
authority both to make effective recommendations with
respect to the status of employees and responsibility to
direct employees in a manner requiring the exercise of
independent judgment and discretion to constitute him a
supervisor within the meaning of Section 2(11) of the
Act." Accordingly, Hogan is excluded from the unit.
Stevenson
As indicated above, the Respondent's alternative
position is that Stevenson should be excluded as a
supervisory employee if Hogan was. Stevenson appears to
be the most experienced worker on the night shift which
employs between three and five employees. °' Although
characterized as a leadman, the employee list which the
Respondent had submitted in the representation case,
classified him as "apprentice set up man." When
Stevenson reports for work, he customarily receives from
Hogan the daily assignment of work that he and the other
second-shift employees are to perform on their machines.
Hogan also selects the tools and cams required for the
particular jobs, which Stevenson furnishes the operators.
Stevenson, himself, spends approximately 60 to 70 percent
of his time operating machines and the balance of his time
helping other employees do their work and solve their
problems. He also makes needed repairs to machines. If
Stevenson encounters difficulties with which he could not
"It appears that management and the employees have the same Blue
Cross hospitalization coverage.
'Sec 2( l 1) provides
The term "supervisor" means any individual having authority in the
interest of the employer , to hire , transfer, suspend , lay off, recall,
promote , discharge , assign , reward , or discipline other employees, or
responsibly to direct them , or to adjust their grievances , or effectively to
recommend such action , if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment
cope, he calls Hogan.
Stevenson has a key to the premises and at the end of
the shift sees that the windows are closed, the lights are
turned off, and the doors to the shop are locked. Like
other employees, he punches a timeclock and is paid an
hourly rate which is equal to, or lower than, that paid to
several employees on the day shift. There is no evidence
that he enjoys any of the attributes of a supervisor as
defined in the Act or that his status is comparable with
Hogan's.
As I find that Stevenson has the same interest in the
terms and conditions of employment as the other
employees, I include him in the bargaining unit.
Liptai
Liptai is an estimator who shares an office with
General Manager O' Brien , Sr., in a part of the building
not visible from the shop. His principal duty is to prepare
bids for jobs. This involves determining the quantity and
cost of materials needed, the time factor in running the
job, and the type and quantity of tooling required.
Between 70 and 75 percent of his time is devoted to
figuring bids, which are then reviewed by O'Brien, Sr.,
and, if approved, are submitted to the customers. When
the Respondent is awarded a job, Liptai orders the tooling
and materials . The cost of the tooling amounts to
approximately $2,000 to $2,500 a year. During the
processing phase of a job, Liptai checks the progress of
the work in the shop and whether the produced parts meet
specifications; instructs operators on how to perform the
particular job; assists in ironing out difficulties; supervises
the inspection of parts; returns to the supplier the tools
and cams which require reworking; and occasionally sets
up a secondary machine for an operator. According to
Liptai, he spends about 25 to 30 percent of his time in the
shop. On occasion he may leave the shop to discuss
complaints with customers or to bring tools to a supplier
to be reworked. Sometimes he also oversees the shipping
of completed parts.
Unlike shop employees, Liptai wears street clothes
while at work, does not punch a timeclock, and receives a
fixed salary which exceeds the wages paid shop employees.
His working hours are also different from those of the
shop employees. During Foreman Hogan's absence, Liptai
substitutes for him. When questioned at the hearing
whether he had the authority to make effective
recommendations with respect to the hiring and firing of
employees, raising wages , granting employees timeoff or
promoting employees, Liptai gave this ambiguous answer:
Well, I think so. I think in a way I could. It never has
come up, but I think Mr. Hogan would be more or less
in that, but I don't get into that area.
As indicated above, Liptai's name was omitted from
the list of unit employees which the Respondent had
previously submitted in the representation case and, with
O'Brien, Sr., and Hogan , withdrew from the April 20
meeting when the employees considered O'Brien, Sr.'s,
committee proposal.
"The description of Stevenson's duties are confined to the times relevant
to the issues in this case According to Stevenson ' s uncontradicted
testimony, in September 1968, which was subsequent to the critical dates,
O'Brien, Sr, told him that he was in charge of the second shift and that,
instead of doing setup work , he was to supervise employees and inspect
their work . Previously, he had been appointed leadman and did no
inspection work. In September , Stevenson was also given a wage increase.
Notwithstanding the change in duties, Stevenson continued to operate
machines
ARROW SPECIALTIES, INC.
On the basis of the foregoing , I find that whether or
not Liptai possesses the authority to constitute him a
supervisor within the meaning of the Act , he does not
share a sufficient community of interest with the shop
employees to warrant his inclusion in the unit.
Accordingly , Liptai is excluded.
Schreier
Schreier reached his 70th birthday in August 1968. He
had previously retired at the age of 65 when he began
receiving social security benefits . About a year or so later,
Schreier decided to return to work on a part-time basis
and obtained employment with the Respondent with the
understanding that his hours would be limited so that his
gross earnings would not exceed the maximum amount
allowed Social Security annuitants . For 1968 , the amount
was $1,800 . Accordingly , Schreier has been working 5
days in Bach 2-week period ,' 6 except that where there is a
fifth week in any 2-month period he does not work that
week at all. Unlike unit employees , he receives no paid
holidays or vacations and limits his workday to 8 hours.
The Board has traditionally excluded from bargaining
units Social Security annuitants who limit their earnings
to the maximum amount allowed recipients of social
security . 07 While the Respondent makes a cogent
argument for Schreier 's inclusion in the unit based on the
Court ' s decision in Indianapolis Glove Co . v. N.L.R.B.,"
which held that Social Security annuitants share a
sufficient community of interest with full-time employees
in terms and conditions of employment , the Trial
Examiner is bound by Board precedent until the Board
decides to change it . Accordingly , I reluctantly exclude
Schreier from the unit.
Moore
Pamela Moore left her job on May 9 , before the
Union ' s first demand for recognition, because of her
pregnancy . Although she gave birth on September 25, she
never advised the Respondent that she wanted to return to
work ." The General Counsel contends that Moore was on
maternity leave and therefore should be included in the
unit . The Respondent, on the other hand , insists that she
had quit her employment on May 9 and that therefore she
should be excluded from the unit.
The record discloses that about 3 weeks before Moore's
departure, O'Brien, Sr ., discussed with Moore her present
and future job intentions . According to Moore, O'Brien,
Sr., asked her whether she intended to quit or take a leave
of absence or "what" and that she replied that she
preferred a leave of absence . Moore further testified that
O'Brien , Sr., suggested that she change her hospitalization
insurance and make arrangements for the payment of the
premiums because the Company was not going to
"In September 1968 the number of days worked in a 2-week period was
reduced to four.
"Taunton Supply Corp ., 137 NLRB 221-223 ; The Kostel Corporation,
172 NLRB No. 167 ; John P. Krystymak , d/b/a Red & White Super
Markets, 172 NLRB No. 210.
400 F . 2d 363 (C.A. 6), decided September 13, 1968.
"Moore testified that in the middle of November she received permission
from her doctor to return to work but that she was "just in no hurry" to
do so and "decided to wait a couple of weeks ." It is noted , however, that
the strike at the Respondent ' s plant, which began on October 25, was still
in progress in November . The Respondent states in its brief that , after the
hearing , Moore sent word to the Company through the Union that she was
not interested in returning to work.
317
continue her insurance while she was "on leave ." Moore
further testified that a day before she left , O'Brien, Sr.,
asked her about her health , and when she planned on
returning ; that she answered that since she expected to
give birth on October 25, she would probably return the
first or second week in November ; and that O'Brien, Sr.,
stated , "O.K., adding , however , that her return would
depend on whether "the union gets in or not whether we
will need you or take you back ." Under
cross-examination , she testified that her testimony that she
was on leave of absence was in her own words.
O'Brien, Sr ., admitted talking to Moore about her
pregnancy and leaving her job and that she told him that
she wanted to return after her baby was born . He also
testified that he informed her that she was a good worker;
that he had no objection to her returning , if work were
available ; and that he suggested that she call him when
she was ready to return.
According to the undisputed testimony of Kay Foster,
O'Brien , Sr.'s, secretary , which I credit , Moore asked her
about a week before she left to find out from O ' Brien, Sr.,
whether he would advise the unemployment insurance
agency that she was fired so that she could qualify for
unemployment benefits . Moore also told Foster that she
was informed by that agency that she would not be
eligible for benefits if she quit her job but would be if she
were discharged . Foster , thereupon , conveyed this message
to O'Brien , Sr., but refused Moore ' s request . Foster
transmitted this reply to Moore . O'Brien , Sr., testified
that he, too , later advised Moore that he would not
comply with her requests"
It is clear that since the Company 's inception it had no
maternity leave policy . Indeed , it appears that Moore's
situation was the first time that the question had arisen.
In addition, it appears that , following her departure,
Moore's name was not retained on the Company' s payroll
records as an employee.
From a careful analysis of all the relevant evidence," I
am persuaded that O'Brien, Sr.'s, testimony regarding his
conversation with Moore is more reliable than Moore's
and reveals that O'Brien , Sr., had no intention of
continuing Moore as an employee during her absence. At
most, it appears that O'Brien , Sr., expressed a favorable
inclination to reemploy her should she decide to return to
work after the birth of her baby , provided work was
available and circumstances permitted him to do so.
Substantiating O'Brien , Sr.'s, testimony that Moore had
resigned is Foster's uncontradicted and credible testimony
that Moore requested her to ask O'Brien , Sr., to inform
the unemployment insurance agency that Moore was fired
because if she had quit she would not be entitled to
unemployment benefits.
As Moore lost her employee status before the Union
demanded recognition from the Respondent, she is
excluded from the unit.
"Moore testified that she did not remember discussing the subject of
unemployment insurance with O'Brien , Sr. I find O'Brien, Sr.'s, testimony
credible in this respect
"This includes the testimony of President O'Brien , Jr., and employee
Coke regarding O'Brien , Sr.'s, remarks at the May 2 meeting concerning
Moore's leaving the Company . I have also taken into consideration the
fact that Moore' s name appears on the list of employees which the
Respondent had submitted to the Regional Office in connection with its
representation petition.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Majority status; refusal to bargain
It follows from my findings respecting the composition
of the appropriate unit that at all critical times during the
weekly payroll period ending May 17, there were 20
employees in that unit. The General Counsel claims that
at such times the Union enjoyed majority status evidenced
by authorization cards signed by the Respondent's unit
employees."
As discussed earlier in this decision, the Union made its
initial request for recognition on May 13 when Union
Representatives Burrows and Bagwell conferred with
General Manager O'Brien, Sr. However, on that date the
Union had 10 authorization cards51 which manifestly fell
short of a majority entitling it to recognition. Nor did the
Union have a card majority on May 15 when it returned
to the plant to discuss recognition with President O'Brien,
Jr. The record is too equivocal to support the General
Counsel' s contention that on May 15 the Union had
received two additional cards from employees Burkett and
Prettyman. Thus, although Burkett's card was dated May
15, 1968, he could not recall when he signed it" and he, as
well as the Union ' s representatives and other witnesses for
the General Counsel who had anything to do with the
card, denied dating the card. However, it is undisputed
that Burkett and Prettyman received blank cards from
employee Huntsman on the same day shortly before their
shift ended, which they promptly signed and returned to
Huntsman. Significantly, Prettyman's card was dated
May 16, 1968, and he testified that he had signed it on
that date." Huntsman, however, could not recall the date
he gave the cards to Prettyman and Burkett.
"These cards read , as follows
YES, I WANT THE IAM
I. the undersigned employee of
(Name of Company)
authorize District 9. International Association of Machinists
and Aerospace Workers (IAM) to act as my collective bargaining
agent for wages , hours and working conditions I agree that
this card may be used either to support a demand for recognition
or an NLRB election, at the discretion of the union
NAME DATE
HOME ADDRESS PHONE
CITY STATE ZIP
JOB TITLE DEPT SHIFT
SIGN HERE
NOTE This authorization to be SIGNED and DATED
in Employee 's own handwriting YOUR RIGHT TO
SIGN THIS CARD IS PROTECTED BY FEDERAL LAW.
RECEIVED BY ( Intial).
"Since I have excluded Moore from the unit , her card, which was signed
on April 19, is not counted . On the other hand , the 10 cards includes one
signed on April 22 by employee Stevenson who, I have found , belongs in
the unit.
Employee Coke testified that about May 15, some 10
minutes after he got off from work at 4:30 p.m.,
Huntsman delivered Prettyman's and Burkett's cards to
him; that thereafter outside the shop he met International
Representative Bagwell who informed him that the
Respondent had "just" rejected the Union's request for
recognition; and that he (Coke) thereupon handed Bagwell
the two cards in question . According to Bagwell, he
received these cards from Coke on May 15 at the time
and place indicated by Coke about an hour or hour and a
half after O'Brien, Jr., declined to recognize the Union.
However, in an affidavit which he gave a Board Agent,
Bagwell stated it was on May 17 when Coke delivered
Perryman's and Burkett's cards to him." In view of the
foregoing, I find that the General Counsel failed to prove
that the Union had a card majority at the time it
requested recognition on May 15.
On the other hand, I find, in accordance with
Prettyman's credible testimony, that he and Burkett did
sign authorization cards on May 16, which they then
delivered to employee Huntsman, who was acting on
behalf of the Union. These cards thus gave the Union a
card majority of 12 out of 20 employees in the
appropriate unit. I therefore find that the next day when
the Respondent received the Union's May 16 letter in
which the Union reiterated its recognition request and
offered to submit proof of its majority status to a neutral
party, the Union was actually the duly designated
bargaining representative of the Respondent's employees,"
whom the Respondent was obligated to recognize, unless
it had a good-faith doubt of the Union's majority status.
"Although Burkett testified that he was unable to recall when he signed
the card, he stated that he believed it was May 25. However, in view of the
other evidence discussed above, I find that this date is definitely a poor
guess
"Prettyman also testified that about 3 weeks earlier he had signed
another authorization card which he had deposited in a letter box but
which "never did show up " It is noted that the back of the card contained
the Union 's name and address and provided for prepaid postage.
"The affidavit reads
27) On May 17, 1968, Bert Townsend organiser [sic], and 1 , went to
Arrow and met with Klaus [sic] Coke, Huntsman , Jerry Williams, and
Leora [sic] Coke I told them , out in the street again , that the Company
had filed a petition and that we were going to file charges with the
NLRB At that time Klaus Coke gave me two more cards, signed by
Isaac Perryman and Virgil Burkett .
r s s s r
29) All the cards from Arrow employees , were either received by us in
the mail, or given to me by Coke on May 17, 1968
Townsend was not produced as a witness and, although Huntsman,
Williams and Leona Coke testified, they did not cover this episode.
Bagwell also produced an appointment book purporting to contain an
entry showing the delivery of two cards on May 15 In light of all the
evidence , this entry does not convince me that Bagwell received the two
cards in question on that date
"The Respondent does not challenge in its brief the validity of the
Union ' s authorization cards, although it raised objections to the receipt in
evidence of the cards of employees Bell, Childers , Terrance Hall, Brelsford,
Burkett, and Prettyman . I overruled these objections and now adhere to
my rulings. I find that Bell's card was properly authenticated by Moore.
McEwen Manufacturing Company and Washington Industries, Inc, 172
NLRB No . 99. With respect to the cards of the other named employees, I
find, on the basis of all the circumstances surrounding their execution,
including the Union ' s handbills and leaflets, and the language of the cards,
that these employees did not sign the cards in reliance on any
representation by a union solicitor that the sole purpose of the cards was
to secure a Board election . On the contrary, I find that these signers
clearly intended by their act to designate the Union as their bargaining
agent . Accordingly, I find that these cards are valid to establish the
Union ' s majority status Levi Strauss & Co , 172 NLRB No. 57
In addition to the above-mentioned 12 cards, the card of employee Hof
ARROW SPECIALTIES, INC.
The Respondent maintains that it acted in good faith in
questioning the Union ' s majority and insisting on a Board
election to determine the Union's right to represent the
Company's employees. I find otherwise.
It is settled law that a Board-conducted election is not
the only method whereby a union may establish that it has
been designated by a majority of employees in an
appropriate unit to represent them in collective bargaining
with their employer. SB It has also been held that "where a
union has obtained valid authorization cards from a
majority of the employees in an appropriate unit, the
employer is vulnerable to a Section 8(a)(5) violation if,
absent a good-faith doubt as to its majority status, he
refuses to recognize and bargain with the Union."" I find
it difficult to accept the Respondent's protestations of
good faith. Certainly, its aggressive campaign , described
earlier in this Decision , to prevent the Union from
organizing its employees does not reflect well on its
asserted reason for refusing to recognize the Union.
Indeed , its aborted attempts to establish a committee to
handle employee complaints and grievances as a substitute
for union representation betrays a predisposition not to
deal with the duly designated representative of its
employees . It is true that the Respondent expressed a
willingness to bargain with the Union if it won a Board
election. However, when, as part of the settlement of the
unfair labor practice charge against the Respondent in
Case 14-CA-4688, the Union willingly withdrew the
8(a)(5) allegations of its charge and agreed to submit its
representation claim to the test of a ballot, the
Respondent made the holding of a fair election
impossible. Not only did it post a side notice which
defeated the intent and purpose of the settlement
agreement , but engaged in other unfair labor practices in
breach of the terms and conditions of that agreement. As
a result, the Regional Director properly vacated the
settlement agreement and indefinitely postponed the
scheduled representation election . Further manifesting a
determination not to deal with the Union is the
Respondent's solicitation shortly before the scheduled
election of employee withdrawal of their authorization
cards to destroy the Union's majority.
In sum , I find that the Respondent ' s refusal to
recognize and bargain with the Union was prompted, not
by any honest belief that the Union did not enjoy majority
support, but by its complete rejection of the
collective-bargaining concept and its desire for additional
time to dissipate the Union's majority. Clearly, such an
attitude cannot be reconciled with the bargaining
obligation imposed on employers by the Act.
The Respondent , nevertheless , argues that , despite the
Union's majority status, it should not be found guilty of
an unlawful refusal to bargain because the Union itself
demanded recognition in bad faith initially when it did not
represent a majority of the employees and subsequently
when it lacked knowledge whether or not it actually did.
Assuming this would be a valid ground for exonerating
was received in evidence over the Respondent 's objection . This card was
signed and mailed to the Union on May 16. Although I adhere to my
ruling receiving the card in evidence , I will not count it in determining the
Union' s majority status for the reason that it appears that Hof had signed
the card in reliance on International Representative Bragwell's
representation that the Respondent had rejected the Union ' s bargaining
request and that the card was needed to secure an election.
"United Mine Workers of America v . Arkansas Oak Flooring
Company, 351 U.S. 62, 72, In 8; N.L.R B v. Arkansas Grain Corporation,
390 F .2d 824, 828 (C.A 8).
"N L R.B v Arkansas Grain Corporation, supra, 828
319
the Respondent, I find no factual support for its
contention . On the contrary, I find that the Union made
its earlier recognition requests in the honest belief that it
represented a majority of the employees in an appropriate
unit . The record shows that on May 13 and 15, the Union
had 11 cards and acted only after it had verified from
employee Claus Coke's count of the number of timecards
in the rack at the timeclock and Union Representative
Bagwell's count of employees entering and leaving the
plant during the shift change that there were about 20 or
21 employees who belonged in the unit. Although I have
excluded one card signed by Moore because she had left
the Respondent's employ before the Union's first request,
there is nothing in the record to impugn the Union's
belief, although erroneous, that Moore was on maternity
leave and therefore retained her employee status for the
purpose of determining the Union's majority. Moreover,
simply misjudging the size of a unit is no justification for
depriving employees of their right to representation where,
as here, the Union actually represented a majority of the
employees at the time the Respondent received its last
demand for recognition.60
Accordingly, I find that the Respondent, in disregard of
its statutory obligation, refused to recognize and bargain
with the Union on and after May 17, as the exclusive
representative of the Company's employees in an
appropriate unit and thereby violated Section 8(a)(5) and
(1) of the Act.
IV. THE 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 as 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
its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent be directed to cease and
desist from engaging in the unfair labor practices found
and to take certain affirmative action designed to
effectuate the policies of the Act.
To remedy the Respondent's unlawful refusal to fulfill
its statutory obligation, I recommend that it be directed to
bargain, on request, with the Union as the exclusive
representative of the Company's employees in the unit
found appropriate herein. Even were I to find that the
Respondent did not violate Section 8(a)(5) of the Act, I
would still recommend a bargaining order in view of the
serious and pervasive nature of the Respondent's unfair
labor practices which manifestly destroyed the laboratory
conditions necessary for the holding of a free and fair
election in which the Union's strength could be reliably
tested."
"N L R B v Arkansas Grain Corporation, supra , relied upon by the
Respondent , is clearly distinguishable There, unlike here, the union first
achieved a majority several days after the employer received the union's
last demand for recognition Moreover , in the cited case, the court found
that the union did not act in the "honest but mistaken" belief that it
represented a majority of the employees at the critical times . In the present
case, I have found otherwise.
"N L R B v. Delight Bakery, Inc, 353 F 2d 344, 346-347 (C.A. 6),
enfg 145 NLRB 893, 908-909.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the Committee became defunct shortly after its
formation, the customary disestablishment order is not
recommended . On the other hand , the nature and extent
of the Respondent' s unfair labor practices reveal a
potential danger that the Respondent might commit other
unfair labor practices proscribed by the Act. Accordingly,
I recommend that the Respondent be ordered to cease and
desist from in any other manner infringing upon the rights
guaranteed employees in Section 7 of the Act." The
posting of an appropriate notice to employees is also
recommended.
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. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees at the
Respondent' s plant at 155 Hanley Industrial Court, St.
Louis County , Missouri , excluding office clerical and
professional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all material times herein since May 16, 1968, the
Union has been the exclusive bargaining representative of
the employees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
5. By refusing on and after May 17, 1968, to recognize
and bargain collectively with the Union as the exclusive
representative of the employees in the above -described
appropriate unit, the Respondent has engaged, and is
engaging , in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By promoting , supporting and otherwise interfering
with the formation of the Committee , a labor organization
as defined in Section 2(5) of the Act, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(2) of the Act.
7. By reason of the foregoing conduct and its antiunion
activities set forth in section III, D , 1, the Respondent has
interfered with , restrained and coerced employees in the
exercise of their statutory rights within the meaning of
Section 8(a)(1) of the Act.
8. The Respondent has not engaged in other alleged
conduct in violation of Section 8 (a)(1) of the Act, except
as found above.
RECOMMENDED ORDER
Upon 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 National Labor Relations Act, as
amended , it is ordered that the Respondent, Arrow
Specialties , Inc., St . Louis County , Missouri, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
District No. 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclusive
representative of the employees in the unit described
below , concerning rates of pay, wages, hours of
employment, and other conditions of employment:
All production and maintenance employees at the
Respondent's plant at 155 Hanley Industrial Court, St.
Louis County, Missouri , excluding office clerical and
professional employees , guards and supervisors as
defined in the Act.
(b) Sponsoring, supporting or otherwise interfering with
the formation of an employee committee or other labor
organization as defined in the Act.
(c) Coercively interrogating employees concerning their
union membership , sympathies, and activities, the identify
of employees responsible for bringing the Union into the
plant, the reasons which prompted the union movement,
and the anticipated outcome of any Board-conducted
election.
(d) Requesting any employee to ascertain for the
Company the number of employees who signed union
authorization cards ; accusing any employee of
responsibility for initiating the union movement ; warning
union supporters to secure other employment; threatening
employees with loss of overtime in reprisal for organizing;
threatening employees in any manner in order to induce
them to sign a document absolving the Company from
responsibility for illegally sponsoring the formation of an
employee committee to handle their complaints and
grievances ; reprimanding employees for attending a union
meeting or giving them the impression that the Company
was keeping union meetings and their activities under
surveillance; granting , promising or offering to discuss
with employees wage increases , improvements in terms
and conditions of employment or promotions for the
purpose of discouraging them from supporting the Union;
warning employees that it would rescind previously
granted or promised benefits because they supported the
Union; soliciting employees to withdraw their union
authorization cards in order to destroy the Union's
majority in return for a wage increase ; and blaming the
Union for the Respondent ' s withholding of wage increases
to employees for the purpose of inducing employees to
repudiate the Union.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their 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 , to engage in
concerted activities 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 by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative of all
the employees in the unit described above concerning rates
of pay, wages, hours of employment , and other conditions
of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its plant in St. Louis County, Missouri,
copies of the attached notice marked "Appendix.""
Copies of the said notice, on forms provided by the
Regional Director for Region 14, shall, after being duly
signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
"N.L R.B. v. Express Publishing Company, 312 U.S. 426, 433. "In the event that this Recommended Order is adopted by the Board,
ARROW SPECIALTIES, INC.
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced or covered
by any other material.
(c) Notify the Regional Director for Region 14, in
writing , within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith."
IT IS FURTHER ORDERED that the consolidated
complaint , as amended , be and it hereby is, dismissed
insofar as it alleges other acts of interference , restraint,
and coercion not found herein to be in violation of Section
8(a)(1) of the Act.
the words , "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a decree of the United States Court of
Appeals Enforcing and 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 the Regional Director for
Region 14, 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
Relations Act as amended , we hereby notify our
employees that:
The Act gives all employees the following rights:
To organize themselves
To form, join or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
WE WILL bargain collectively , on request, with
District No. 9 International Association of Machinists
and Aerospace Workers , AFL-CIO, as the exclusive
representative of all our employees in the unit described
below with respect to rates of pay, wages , hours of
employment, and other conditions of employment and,
if an understanding is reached , embody such
understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees at the
Respondent' s plant at 155 Hanley Industrial Court,
St. Louis County, Missouri , excluding office clerical
and professional employees, guards and supervisors as
defined in the Act.
WE WILL NOT sponsor , support, instigate , or otherwise
interfere with the formation of any employee committee
or other labor organization to handle employee
complaints or grievances or in any other manner to
represent employees with respect to their terms and
conditions of employment.
WE WILL NOT threaten employees in any way in
order to induce them to sign a document absolving the
Company from responsibility for illegally sponsoring
the formation of an employee committee to handle their
complaints or grievances or otherwise to represent them
concerning their terms and conditions of employment.
321
WE WILL NOT coercively interrogate our employees
concerning their union membership , sympathies, and
activities, the identity of employees responsible for
bringing the Union into the plant , the reasons which
prompted the union movement , or the expected
outcome of any Board -conducted election.
WE WILL NOT request any employee to ascertain for
the Company the number of employees who signed
union authorization cards.
WE WILL NOT accuse any employee that he was
responsible for bringing a union into the plant.E WILL NOT warn union supporters to secure other
employment or warn employees that they stand to lose
overtime if the plant is unionized.
WE WILL NOT grant any employee a wage increase as
a reward for not signing a union authorization card or
grant, promise or offer to discuss wage increases,
improvements in terms and conditions of employment
or promotions for the purpose of discouraging them
from supporting the Union.
WE WILL NOT reprimand employees for attending a
union meeting or give them the impression that the
Company was keeping their union meetings or activities
under surveillance.
WE WILL NOT withhold or threaten to withhold
previously granted benefits because the employees
favored a union.
WE WILL NOT solicit employees to withdraw their
union authorization cards in order to destroy the
Union's majority status in return for a wage increase or
blame the Union for the Respondent's withholding of
wage increases for the purpose of inducing employees to
reject that organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
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 , to engage in
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 by Section
8(a)(3) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named Union , 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 by Section 8(a)(3) of the Act.
Dated By
ARROW SPECIALTIES, INC.
(Employer)
(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 provisions they may communicate
directly with the Board ' s Regional Office, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri
63102, Telephone 622-4167.