Crow Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1973

206 N.L.R.B. 439 (N.L.R.B. 1973)

CROW INC. 439
Crow Inc . and Local Lodge 1042 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO. Cases 8-CA-747S and 8-CA-7554
October 16, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On July 5, 1973, Administrative Law Judge Sidney
Barban issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
of Section 8(a)(1) of the Act, and (7) from on or about
December 11, 1972, refused to recognize and bargain with
the Union as representative of an appropriate unit of
Respondent's employees by refusing to meet with the Union
and negotiate working conditions of those employees, and
by laying off and constructively discharging employees,
conducting a poll, and unilaterally subcontracting janitorial
work in order to undermine the Union and destroy its sta-
tus, all in violation of Section 8(a)(1) and (5) of the Act.
Respondent's answers, as amended at the hearing, admit
allegations of the complaints sufficient to support the asser-
tion of jurisdiction under current standards of the Board
(Respondent, an Ohio corporation engaged in maintenance,
fueling, sale, rental and storage of aircraft at Swanton, Ohio,
annually ships products valued in excess of $50,000 in inter-
state commerce). The answers deny the commission of any
unfair labor practices.
Upon the entire record in this case, from observation of
the witnesses, and after consideration of the oral arguments
of the parties and a memorandum of citations submitted by
General Counsel, I make the following:
FINDINGS AND CONCLUSIONS
I. THE FACTS
A. The Appropriate Unit
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Crow Inc., Swanton, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This matter
was heard at Toledo, Ohio, on May 15, 1973, upon a com-
plaint issued in Case 8-CA-7478 on March 14, 1973 (based
on charges filed on February 7 and 27, 1973), and upon a
complaint issued in Case 8-CA-7554 (based on a charge
filed March 13, 1973) and an Order Consolidating Cases
issued on April 3, 1973. The consolidated complaints allege
that the above-named Respondent (1) laid off employee
Daniel P. Hardy from January 8 to January 22, 1973, (2)
laid off employee Charles Degner from January 8 to Febru-
ary 9, 1973, (3) terminated Charles Degner on March 14,
1973, and (4) constructively discharged employee Lloyd
Bailey on or about January 26, 1973, all in violation of
Sections 8(a)(1) and (3) of the Act, (5) on or about January
5, 1973 conducted a poll of its employees to determine
whether they desired to be represented by the above-named
Charging Party (herein "the Union"), and (6) on or about
February 19, 1974, subcontracted its janitorial work in dero-
gation of the Union's representative status, all in violation
As a result of a petition for certification filed by the
Union in Case 8-RC-8873, and after a hearing held on
January 4, 1973, the Regional Director for Region 8 in a
Decision and Direction of Election dated January 17, 1973,
found the following to be an appropriate unit for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
All mechanical and maintenance employees of the [Re-
spondent] at its facilities located at Swanton, Ohio,
including parts department employees, line service em-
ployees, licensed mechanics, mechanic helpers, the
electronics mechanic and the janitor, but excluding all
licensed pilots, office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
Respondent, though it sought the inclusion of the office
clericals and pilots in the unit during the representation
hearing, agreed on the record in the present case that the
above unit was an appropriate unit withht the meaning of
the Act, and it is so found.
B. The Sign-Up of Union Cards
Between December 5, and 7, 1972, 10 of Respondent's
employees in the unit set forth above signed cards stating
that the signers "hereby authorize the International Associ-
ation of Machinists and Aerospace Workers (IAM) to act
as my collective bargaining agent with the company for
wages, hours and working conditions. It is my under-
206 NLRB No. 107
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing that I will be invited to join the IAM." I
Of the 10 employees who executed these cards, 1, William
Joseph David, testified at the hearing in this matter that he
signed the card because he understood that he would there-
by get more information about the Union, indicating that
this was his principal reason for signing. David executed his
card at a meeting on December 5 attended by employees
interested in the Union. At the meeting, employee Charles
Wellman had union cards which he handed out to those
who stated that they would like to have a union at
Respondent's operation. David states that Wellman said he
was going to arrange a meeting with a union representative
"so that we could further discuss what was going to come
about as far as the union, what the union could do for us,
what better job improvements or what not we could get
from the union." David asserted, "basically, what [Well-
man] said, if we wanted more information we could sign this
thing and we would get more information from it." David
testified that it was his personal understanding that the card
was "an application for information pertaining to an IAM
Union." Nevertheless, the record shows that David read the
card before he signed it, that he has a sufficient awareness
of the union representational process to understand the sig-
nificance of the card, and neither he nor anyone else present
at the meeting raised any question about the language on
the card. Further, David testified that the large majority of
Respondent's employees had expressed themselves in his
presence as being for the Union, the exceptions being, ac-
cording to David, "one or two undecided or didn't want [a
union]."
Based on the record as a whole and my observation of
David, I have substantial doubts with respect to the reason
he now advances for signing the IAM authorization card.
My impression is that this reason, insofar as it denies the
plain meaning of the card, is an afterthought rather than a
clear recollection of his mental attitude (unexpressed) at the
time. In any event, David's testimony makes clear that this
alleged reservation concerning the card was personal to
him, and even if his card were disqualified this would not
affect the Union's majority status as of December 11, 1972,
when the Respondent received the Union's request for rec-
ognition and bargaining by Respondent. On that date, ac-
cording to the list provided by Respondent, there were 17
employees in the appropriate unit set forth above.
C. The Request To Bargain
By letter dated December 8, 1972, received by Respon-
dent on December 11, the Union advised Respondent that
"a majority of your employees (Production, Maintenance &
Mechanics) have authorized and designated [the Union] as
their collective bargaining agent," offered, if Respondent
had any doubt of the Union's representational status, to
have this determined by an impartial person, and requested
recognition and bargaining. Respondent has never an-
1 Notwithstanding Respondent's denial, it is clear that the Union is a labor
organization within the meaning of the Act, and I so find. The record in the
swered this letter, nor has it ever stated its reason for refus-
ing to recognize and bargain with the Union.2
D. Respondent's Poll of the Employees
The Board's hearing in the representation case was held
on January 4, 1973. The following day, January 5, Respon-
dent assembled all of its employees after the close of work.
It is indicated that it even called one employee who was off
on sick leave to come in from home. Clerical employees
(who were obviously excluded from the unit) were given to
understand that they were not affected by the proceedings
and were given leave to depart if they desired. At the outset
of the meeting, presided over by Respondent President Bar-
num, Barnum wanted to know where the janitor, Lloyd
Bailey, was, stating, "He's No. 1." Barnum read parts from
a three and a half page letter of instructions, dated Decem-
ber 29, 1972, which he had received from a lawyer concern-
ing the law applicable to an employer in face of an union
organizational campaign. Two parts of the letter appear
particularly pertinent to the issues in the present matter.
First is the following (in pertinent part):
An employer may claim that he is merely predicting
when he states the consequences from unionization
such as strikes, violence, unemployment, plant closure,
hard bargaining and hard litigation. . . . In order not
to be a threat, a prediction must relate to an event over
which the employer (speaker) has no control. [Emphasis
in original] In theory, he is privileged under his free
speech rights to predict the adverse consequences of
unionization upon his company as long as he claims
that he will be acted upon-a victim of union or other
group power. If, however, this predictions are based
upon his power response to unionization, he is guilty of
a threat under the Board's coercive control test.
Immediately thereafter, the letter discussed the possibility
and effect of interrogating employees, including the advice,
"Don't interrogate," but giving advice as to what to do if
Respondent wished, nevertheless, to interrogate its employ-
ees, including the following:
There has, therefore, arisen a ritual which must be
followed to avoid an unfair labor practice claim:
1. Before questioning an employee, employer must
have a valid reason for doing so.
2. Tell reason to employee.
3. Inform employee that his answers are voluntary
and no reprisals will be taken. [Emphasis in original]
If you desire to poll your employees to learn the impact
of union influence, it must be a secret ballot to avoid
an unfair labor practice claim. [Emphasis in original.]
These safeguards must be observed if you poll: (1) the
purpose of the poll must be to determine the truth of
union's claim of a majority; (2) employees must be told
the purpose; (3) assurances against reprisals must be
representation case, which was received in evidence in this proceeding, also 2 As part of the formal proceedings in the representation case,
supports the Regional Director's finding to that effect in the representation Respondent's President, Leon E. Barnum, agreed with the assertion of the
case. hearing officer of the Board that Respondent declined to recognize the Union
until the Union's status was determined through the procedures of the Board.
CROW INC. 441
given; (4) a secret ballot must be used; and (5) employ-
er must not have engaged in unfair labor practices or
created a coercive atmosphere... .
Quite understandably, considering the language and pur-
pose of the letter, none of the employees questioned at the
hearing retained or could recall any of the matters read to
them, other than it was about the Union. One of the witness-
es, Lloyd Bailey, recalled that Barnum interpolated a refer-
ence to a competitor who had been on the airfield
previously, who had apparently been unionized and who
was no longer on the field. Bailey asserted, however, that
Barnum had made no threats.'
Toward the end of his reading of the letter, Barnum stated
to the employees that he had been told that "the union has
a majority of my workers that wish to be represented," and
stated, "This I do not believe." Barnum then directed a poll
of the employees as to whether they desired to be repre-
sented by the Union. At that time there were 15 employees
in the appropriate unit. Slips were handed out to the em-
ployees bearing the words, "for" or "against." The employ-
ees marked the slips where they stood or sat in the area and
deposited them in a box with a slit in the top. Thirteen
ballots were cast, eight were for the Union, four were
against, and one was marked-"undecided." 4 After the count
Barnum merely commented, "Now, I know what to do,"
and returned to his office.5
The employee witnesses questioned stated that Barnum
did not assure them during this meeting that there would be
no reprisals as a result of the vote.
E. The Layoffs
About noontime, on January 8, 1973, Respondent's su-
pervisor, William E. Tanner, advised mechanic Daniel P.
Hardy that he was being laid off for lack of work. About the
same time it appears Respondent also let mechanic Charles
Degner go. (As noted previously, the complaint alleges that
Degner was laid off on this same date. Degner did not
appear to testify at the hearing. Bailey's testimony indicates
that Degner was given "the ax" in January. However, the
3 Barnum asserted from counsel table that Bailey should not be credited,
but did not , as a witness , deny this testimony . While there may be reason to
consider Bailey's testimony with care , on the whole he made a favorable
impression, as attempting not to attribute anything to Barnum which he was
not sure of, and he is credited with respect to this matter. On the other hand,
Barnum impressed as a witness without candor and of very doubtful reliabili-
ty Thus, when called as an adverse witness, he inexplicably denied even the
occurrence of the January 5 meeting and the poll taken during that meeting,
though it is clear that he was aware of the facts and the nature and purpose
of the inquiries.
4 One of the Respondent 's witnesses stated that the two parts department
employees told him that they did not vote, or complained that they were not
permitted to vote. The indication is that they may have considered them-
selves clericals and did not vote because of inadequate instruction from
Barnum.
5 After all sides had rested , during oral argument, Barnum claimed for the
first time that during the representation hearing , the Board 's Hearing Officer
advised him , on the record, that Barnum had the right to poll his employees
and should do so. When Barnum declined my invitation to reopen the record
to litigate this claim , I ordered General Counsel to submit a copy of the
transcript of the representation proceeding , which has been received as an
exhibit in this case I have read it. It does not contain the material suggested
by Barnum I am convinced , on this record, that Barnum got the idea for the
poll from his own counsel 's letter
allegations of the complaints concerning Degner are not
admitted, and there is no direct evidence concerning his
employment other than that given by employees Wellman
and Bailey.) At the time of Hardy's layoff there was clearly
much additional work to be performed on the plane on
which Hardy was working. Though there was indication
from the nature of Barnum's questions of witnesses that he
was taking the position that this work was not essential, but
merely "make work," again this was not established by any
testimony or other evidence.
About 2 weeks later, when Hardy appeared at
Respondent's operations to pick up a check, Tanner told
Hardy that he (Tanner) had been trying to contact Hardy,
for 3 or 4 days to recall him to work. Hardy returned to
work for Respondent the following Monday. He later quit.
Hardy was first employed by Respondent in October
1972. On cross-examination, he agreed that during his em-
ployment he may have been absent from work as much as
once a week. He also stated that he had been spoken to
about being late by Ted Winterfield, whom Hardy referred
to as a foreman, but who Respondent in the representation
case claimed was only an employee, and who is listed by
Respondent as one of the unit employees. Hardy did not
receive any disciplinary warnings.
As previously noted, the complaints allege that Degner
was recalled from layoff on February 8, 1973, and was
discharged March 14, 1973. Both General Counsel and the
Union assert he is now employed elsewhere.
Bailey testified that on an occasion when another em-
ployee expressed himself to Tanner as upset over Degner
getting "the ax," Tanner said "The damn fool had to sign
one of those union cards." When Tanner's attention was
directed to this comment, he testified, "I don 't remember
ever saying it. I can't honestly say I ever did." Tanner testi-
fied that Barnum instructed him not to discuss unions with
employees, and "I tried to . . . the best of my ability not to."
While I consider Tanner a truthful witness, his testimony
obviously is not a specific denial of Bailey's account. I am
satisfied that Bailey would not make the attribution unless
he were convinced of the truth of the statement. Neither of
the two employees named by Bailey as probably present at
the conversation was called as a witness . In the circumstanc-
es, Bailey's testimony is credited.
F. Bailey's Termination; The Subcontracting of Janitorial
Work
Lloyd Bailey was employed by Respondent from August
1971 until late January 1973 as a janitor. Until shortly after
the January 5 meeting, Bailey's normal work week was 40
hours from Monday through Friday. Though Bailey was
accustomed to missing time frequently , Respondent was
quite lenient with him, and he was permitted to make up the
missing days on Saturdays and Sundays . He therefore was
able to earn a full week's pay every week. During his em-
ployment, Bailey had been raised from $1.95 an hour to
$2.05.
About 2 weeks after January 5, Barnum had a conversa-
tion with Bailey with respect to the time it took Bailey to
drive the refuse to the dump, and what Bailey referred to as
"this economy bit." Barnum said that "Maybe it will be less
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expensive to have a community sanitation pickup." Bailey
said that this might be a good idea .6 During this conversa-
tion, Barnum stated that he knew of other companies whose
employees took care of the janitorial duties in their own
areas, and thus did not employ a permanent janitor or cus-
todian at all. Bailey agreeably replied that Respondent
might try that, that it might work for Respondent although
it did not work out for other companies Bailey knew.
Within a short time thereafter, Barnum informed Bailey
that he was cutting Bailey's work time to 4 days a week, a
total of 32 hours. Bailey objected to the reduction in his pay,
and requested that Barnum lay him off, instead, as he had
"the other two guys." Barnum refused. Soon thereafter, Bai-
ley left Respondent's employment, when, he said, he found
permanent employment "with a livable wage."
After Bailey's departure, Respondent, without notifica-
tion to or consultation with the Union, subcontracted its
janitorial work to an outside contractor. It is clear that
Respondent was able to do this at less cost than Bailey's
previous wage for a 40-hour week.
F. Respondent's Economic Situation
According to Respondent's comptroller, Floyd Koegler,
Respondent has not been in a profitable situation for some
time. At one point he referred to a loss at the end of calendar
1971, and a greater loss in calendar 1972, although he was
unable to be specific since he had no records to support
these statements. Koegler, asserted that Respondent's losses
were "running close to over $10,000 a month downward"
(emphasis added), ending "with about, I would say,
$120,000 loss." However, Koegler, who emphasized that
(since he did not have his records with him) these figures
were estimates, "off the top of my head," also had consider-
able difficulty in establishing the period during which as-
sertedly Respondent lost this sum of money. He first stated
in response to a leading question that it occurred from June
1 until December 31, then that it was determined in January
or February 1973. He later stated that it was September
1972 when Respondent "really realized that things were
really getting bad," and that it was not until May that he
determined that Respondent had a $120,000 deficit. There-
after, Koegler testified that the $120,000 deficit applied to
the period from September 1972 to March 1973-a 6-month
period.
In the latter part 1972, about October, Koegler states that
Barnum began discussing with him the institution of econo-
mies at Respondent's operations. At one time Respondent's
operations had included installations at three airfields at
three cities (near Toledo, Mansfield, and Youngstown,
Ohio). One of these had been shut down in June 1972. The
losses noted were apparently incurred at the two remaining,
including Swanton. Barnum insisted that Koegler cut down
on clerical help. This led to the dismissal of one clerical in
January 1973, and Barnum's refusal to permit Koegler to
6 Apparently about this time, or previously, Bailey had been stopped by
the State Patrol when driving to the dump, and the police had found a
number of things wrong with the jeep and trailer he was using, which led
Bailey to tell Barnum's son, Eric, an officer of Respondent, that Bailey did
not feel like going on the road with this equipment anymore.
hire additional clerical help he said he needed. Other than
a tighter rein on expenditures generally, Koegler was un-
aware of any other economies effected. Barnum testified
that, in addition, "we made other moves [to effect econo-
mies], letting other people go and the lines operation, we
reduced our staff there also ... Miller Airport, a lines near
Youngstown, some things like that."
II ANALYSIS AND CONCLUSIONS
A. The Poll of the Employees
Inasmuch as an employer poll tends generally to inter-
fere, restrain, and coerce employees in the exercise of their
rights under the Act, the Board, based on its experience and
many years of litigation in this area, has clearly set forth the
circumstances under which an employer may be justified in
querying its employees concerning their desires for repre-
sentation . See Struksnes Construction Co., 165 NLRB 1062,
1063. These criteria were quite accurately set forth in
counsel's letter to Respondent. It is evident that Respon-
dent did not meet the requirements of these criteria. In the
first place, and most importantly, Respondent's purpose on
conducting the poll was not to determine the Union 's claim
of majority representation so that Respondent would know
how to deal with the Union' s claim. The Respondent had
decided from the beginning to ignore the Union's claim, and
at the representation hearing on the day before agreed that
it would only be satisfied with a Board certification. The
purpose of the employer poll, on the very day after the
Board hearing on the representation hearing, therefore,
could only be designed to undermine the Union. If it were
otherwise one would expect that when a majority of the
employees voted for the Union, the Respondent would have
accepted their choice. This did not happen.
If we are to encourage resort to the orderly procedures of
the Board, and discourage this sort of interference with the
representational process, we must, in the absence of unusual
circumstances , hold that a poll of the employees in this
situation (particularly where the jurisdiction of the Board
has been invoked) violates the Act. Respondent has not
shown any unusual circumstances justifying its action. Nor
did the Respondent in the course of conducting this poll
properly reassure its employees that they did not have to
participate, or give them clearly to understand that they
would suffer no reprisals as a result of their participation or
nonparticipation in the procedure. I believe it manifest that
a formalistic reading of the legally worded letter of counsel
did not serve this purpose, and, in fact, the employees did
not understand that their rights were thereby protected.
It is therefore found that Respondent, by conducting a
poll of its employees on January 5, 1973, to determine
whether its employees desired to be represented by the
Union, violated Section 8(a)(1) of the Act.
B. The Alleged Acts of Discrimination
1. The layoffs and the discharge of Degner. At the close of
the poll on January 5, Respondent President Barnum was
heard to say, "Now, I know what to do." Respondent's next
action, so far as this record shows, was the layoff of Hardy
CROW INC. 443
(and possibly Degner) on January 8, followed shortly there-
after by the reduction of hours for Bailey, the janitor (dis-
cussed hereinafter).- When queried about Degner being
given "the ax," Supervisor Tanner remarked that "the damn
fool had to sign one of those Union cards."
Respondent contends that the layoffs (and the reduction
of the janitor's hours) were caused by its poor economic
situation . Respondent's comptroller, Koegler, was convinc-
ing that Respondent had been losing money for a consider-
able period before January 1972, though I am not prepared
to accept, because of the nature of his testimony, the
amounts or the periods he specified. It is further not clear
to what extent, if any, the Toledo operation, with which we
are here concerned, was responsible for whatever loss Re-
spondent incurred.?
What is particularly difficult to comprehend are the rela-
tively ineffective actions Respondent assertedly took to
counter the substantial deficits claimed (about $10,000 a
month beginning in the fall of 1972). Though Koegler testi-
fied that Barnum began pressing him strenuously, about
October, to cut down on his staff, neither Koegler nor Bar-
num took any significant action to cut down on the employ-
ee complement until January, after the employee poll, when
Koegler let one clerical go, the janitor's hours were cut, and
Hardy and apparently Degner were laid off. Even so, it is
noted that these latter two were quickly recalled-Hardy in
about 2 weeks and Degner apparently in about a month-
although there is no evidence of a change in Respondent's
economic situation in this short time or any other reason for
these recalls.' It is further noted that although Barnum was
assertedly seeking to cut down his staff from October on, at
least one unit employee, David, was employed by Respon-
dent in late October and was not laid off.
The record as a whole, particularly the timing of these
events, and the unpersuasive character of Respondent's as-
serted economic justification, is convincing that
Respondent's actions were taken in reprisal for the employ-
ees' adherence to the Union, and it is so found. It is there-
fore found that by laying off Hardy for about 2 weeks
Respondent discriminated in the terms and tenure of em-
ployment of its employees, discouraging membership in the
Union in violation of Section 8(a)(1) and (3) of the Act.
Degner's case presents a difficult situation. General
Counsel asserted that Degner had been advised to appear
at the hearing but did not do so. General Counsel asserted
his belief that this was due to Degner's beginning a new job
on the day of the hearing, and indicated that he would let
the matter be resolved on the record as it stood. While there
are strong indications, as in Bailey's testimony, that
Degner's layoff was discriminatory, as was Hardy's, I am
inclined to believe that the purposes of the Act, in this case,
would be best served by recommending that the allegations
7 Koegler, at one point , stated that, because of these losses, Respondent
closed down its operations at Mansfield in June 1972, although that action
seems to have antedated the time Koegler indicated Respondent became
aware of its serious loss situation (September-October 1972) Thereafter,
Respondent continued to operate at an airfield near Youngstown also which
probably contributed to the loss
8 Barnum also testified, in the most general terms , that employment was
also cut at Youngstown, but without any details as to when or how many or
for what period
concerning Degner's layoff, and, of course, his later dis-
charge, be dismissed for lack of effective prosecution.
2. The termination of Bailey. Bailey, who had been em-
ployed for more than a year as Respondent's janitor, had,
been fairly frequently absent from work during that period.
Respondent, nevertheless, had been quite lenient with him,
regularly permitted Bailey to make up this lost time on
weekends. This was apparently satisfactory to Respondent
until January 1973. On the occasion of the employee poll,
Barnum made a special effort to assure himself that Bailey
was present. Within 2 weeks thereafter, Barnum cut Bailey's
work schedule from 5 to 4 days a week, notwithstanding
Bailey's complaint that he could not make enough money
on that basis. When Bailey shortly thereafter quit to accept
a full time job, affording him "a livable wage," Respondent
subcontracted the janitorial work, without notifying or con-
sulting with the Union. This action clearly- resulted in a
considerable savings to Respondent.
Respondent's reduction of Bailey's hours of work, and
consequently his weekly pay, was clearly the cause of his
leaving Respondent's employment. For reasons previously
discussed, and on the entire record, I am convinced this
reduction in hours and pay was in reprisal for the employ-
ees' adherence to the Union, and thus violated the Act.
Respondent thus by causing Bailey's termination of em-
ployment discriminated against its employees in tenure and
terms of employment discouraging union membership and
activities in violation of Section 8(a)(1) and (3) of the Act.
C. The Alleged Refusal To Bargain
Respondent received the Union's request for recognition
and bargaining on December 11, 1972, to which Respon-
dent has never made a reply other than its assertion at the
representation hearing that it would not recognize the
Union except through Board proceedings. Though there is
a slight variation between the unit described in the letter
request from the appropriate unit found herein (the term
"production" employee was included in the letter), there is
no evidence that Respondent was misled thereby. In any
event, by the date of the hearing on the representation pro-
ceeding, this matter had been clarified, without any change
in Respondent's position.' See, e.g., Escondido Ready-Mix
Concrete, Inc., 189 NLRB 42. Indeed, in the circumstances,
the filing of the petition constituted a new demand on Re-
spondent for recognition. See Tri-County Tube, Inc., 194
NLRB 103, and cases cited.
The Union at all times since December 7, 1972, clearly
was the designated bargaining representative of a majority
of employees in the appropriate unit. This is shown by the
authorization cards signed by the employees in December,
and is confirmed by the results of the employee poll con-
ducted by Respondent in January. The governing law in this
situation has recently been restated by the Board in Sullivan
Electric Company, 199 NLRB No. 97, as follows:
9 The Union's petition for certification in the representation proceeding,
which was undoubtedly served upon Respondent prior to the hearing in
accordance with the Board's normal practice, requested a unit of "All me-
chanics and maintenance employees including utility employees , drivers,
Janitors , fork lift refuelers, line service employees , mechanics and electronic
employees. "
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concededly, an employer is not required by the Act
to recognize and bargain with a union wholly upon the
strength of its assertion that it represents a majority of
the employees involved, notwithstanding that the
union predicates its assertion upon an adequate show-
ing of signed authorization cards. In this respect, we
have held that an employer may, in the face of a union
demand for recognition, insist that a question concern-
ing representation be resolved by means of a Board-
conducted election, absent agreement between the par-
ties on an alternative means for resolving the question
or misconduct on the part of an employer which is of
such a character as to have a lingering and distorting
effect on any future election.
However, where, as in this case, the Respondent re-
jects the foregoing alternatives and unilaterally under-
takes to determine the Union's majority or'minority
status by means of a poll, under conditions of his own
choosing, the Respondent cannot thereafter disclaim
the results simply because he finds them distasteful.
[Citing Nation-Wide Plastics Co., Inc., 197 NLRB
996.] 10
In the present matter, respondent's actions in conducting
a unilateral poll and then refusing to abide by the results,
and discriminating against its employees because of their
adherence to the Union are, indeed, actions of such a char-
acter as to seriously distort the conditions under which a
Board election might be conducted, and would prevent the
conduct of a fair election to determine the employees' de-
sires as to representation within a reasonable time . In such
circumstances I find that the signed authorization cards
furnish the best available proof of the employees' desires
with respect to representation by the Union.
Moreover, as the Board held in Sullivan Electric, supra,
Respondent, having chosen to determine the Union's repre-
sentational status by its own poll, is not free to ignore the
proof thus acquired, and was obligated to recognize and
bargain with the Union. This it refused to do.
In addition, once this obligation has attached, Respon-
dent may not unilaterally alter the terms and conditions of
employment of its employees, without first affording the
employees' representative a reasonable opportunity to bar-
gain with Respondent over these changes and their effect
on the employees. Nor is this obligation avoided by the
fact that Respondent, as in its dealings with Bailey, may
have discussed the matter with the employee involved, or
even secured his consent. See Medo Photo Supply Corp. v.
N.L.R.B., 321 U.S. 678, 683-685.
It is therefore found that Respondent, by refusing and
failing to recognize and bargain with the Union as the repre-
sentative of its employees in an appropriate unit, and by
changing Bailey's hours of employment, and by subcon-
tracting its janitorial work without affording the Union an
opportunity to bargain over these matters, violated Section
8(a)(1) and (5) of the Act.
10 See also Soil Mechanics Corp, 200 NLRB No 60
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act, and was at all material times, and
continues to be, the exclusive representative of
Respondent's employees in the appropriate unit set forth
below for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
3. All mechanical and maintenance employees of the Re-
spondent at its facilities located at Swanton, Ohio, including
parts department employees, line service employees, li-
censed mechanics, mechanic helpers, the electronics me-
chanic and the janitor, but excluding all licensed pilots,
office clerical employees, professional employees, guards,
and supervisors as defined in the Act constitute an appro-
priate unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. By failing and refusing, since December 11, 1972, to
bargain in good faith with the Union in the above-described
unit, and by unilaterally changing the hours of work of
employees, and by unilaterally subcontracting the janitorial
work previously performed by its employees, in each case
without consulting and giving the Union a reasonable op-
portunity to bargain with respect to these changes, Respon-
dent engaged in unfair labor practices in violation of
Sections 8(a)(1) and (5) of the Act.
5. By conducting a poll of its employees on January 5,
1973, with respect to their desires as- to representation for
collective bargaining, Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
6. By reducing the hours of employment of Lloyd Bailey
and causing Bailey's constructive discharge, and by its lay-
off of Daniel P. Hardy, Respondent discriminated in regard
to the hire or tenure or terms or conditions of employment
of its employees discouraging membership in and activities
on behalf of the Union and thereby engaged in unfair labor
practices in violation of Sections 8(a)(1) and (3) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (3) and
(5) of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully re-
duced the working hours of Lloyd Bailey and constructively
discharged Bailey, it will be recommended that Respondent
offer Bailey reinstatement to his former job, as it existed
prior to the reduction of hours, without loss of seniority or
other rights or privileges, and make Bailey whole for any
loss of earnings suffered by reason of the reduction of his
hours of work and because of his constructive discharge to
the date of Respondent's offer of reinstatement, less Bailey's
earnings during the period of his constructive discharge, in
accordance with the Board's formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon at
CROW INC.
the rate of 6 percent per annum, as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
It having further been found that Respondent unlawfully
laid off Daniel P. Hardy on January 8, 1973, for a period
of approximately 2 weeks," it will be recommended that
Respondent make Hardy whole for any loss of earnings
suffered by reason of his layoff, less Hardy's earnings dur-
ing the period of his layoff, in accordance with the Board's
normal formula, and with interest thereon at the rate of 6
percent per annum, as set forth above.
It having been found that Respondent unlawfully re-
duced the hours of an employee and subcontracted janitori-
al work included in the appropriate unit without , first
affording the Union, as representative of the employees in
the unit, a reasonable opportunity to bargain concerning
these changes in working conditions, it will be recommend-
ed that Respondent rescind these actions, restore the prior
working conditions, and cease and desist from changing
employee rates of pay, wages, hours of employment, or
other conditions of employment without first consulting
and giving the Union a reasonable opportunity to bargain
concerning such changes.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 12
Respondent Crow Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interfering with the rights of employees under the Act
by interrogating or polling its employees concerning their
union activities or membership or desires with respect to
representation for collective bargaining.
(b) Making unilateral changes in hours or schedules of
work, or other terms and conditions of employment without
first consulting and bargaining in good faith with Local
Lodge 1042 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclusive bar-
gaining representative of the employees in the appropriate
unit set forth hereinbelow.
(c) Refusing td' recognize and bargain collectively with
the above-named union, as the exclusive bargaining repre-
sentative of the employees in the appropriate unit set forth
below with respect to the rates of pay, wages, hours of
employment, and other conditions of employment of such
employees. The appropriate unit is:
All mechanical and maintenance employees of the Re-
spondent at its facilities located at Swanton, Ohio, in-
cluding parts department employees, line service
employees, licensed mechanics, mechanic helpers, the
11 There was some indication that Respondent had made attempts to recall
Hardy prior to his return . On this record, I find that they were inadequate
to toll Respondent's responsibility to Hardy.
12 In the event no exceptions are filed as provided by See 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
445
electronics mechanic and the janitor, but excluding all
licensed pilots, office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
(d) Discouraging membership in the above-named
union, or any other labor organization, by discrimination
with respect to the hours or schedules of work, or other
conditions of employment of its employees, or by laying off,
discharging, or in any other manner discriminating against
employees with respect to hire or tenure of employment or
any term or condition of employment.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
Local Lodge 1042 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, as the exclu-
sive representative of all employees in the above-described
appropriate unit with respect to rates of pay, wages, hours
of employment, and other conditions of employment of
such employees, and embody any understandings reached
in a signed agreement.
(b) Rescind, revoke, and abrogate the unilateral reduc-
tion in the hours and schedule of work of Lloyd Bailey, its
janitorial employee, and the unilateral subcontracting of the
work of its janitorial employee.
(c) Offer Lloyd Bailey immediate and full reinstatement
to his former job, without the reduction in his hours or
schedule of work made in January 1973, and without preju-
dice to his seniority and other rights and privileges, and
make Bailey whole for any loss he may have suffered by
reason of Respondent's reduction in his hours or schedule
of work, and by reason of his constructive discharge by
Respondent in the manner set forth in the section of this
Decision entitled "The Remedy."
(d) Make Daniel P. Hardy whole for any loss he may
have suffered by reason of his lay off from employment on
January 8, 1973, to the, date of his return to work, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amounts of backpay due and the rights of em-
ployment under the terms of this order.
(f) Post at its place of business located at Swanton, Ohio,
copies of the attached notice marked "Appendix." 13 Copies
of said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by an authorized repre-
sentative of Respondent, shall be posted immediately upon
receipt thereof and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Respondent
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall take reasonable steps to insure that said Notices are
not altered, defaced, or covered by other material.
(g) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaints in
this matter be dismissed insofar as they allege unfair labor
practices not specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT make unilateral changes in the hours or
schedules of work of our employees in the appropriate
unit described below, or in the terms or conditions of
their employment without first consulting and bargain-
ing in good faith with Local Lodge 1042 of the Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO.
WE WILL NOT interfere with the rights of our employ-
ees under the National Labor Relations Act by interro-
gating or polling our employees concerning their union
activities or membership or their desires for union rep-
resentation.
WE WILL NOT discourage membership in or activities
on behalf of the Union, or any other labor organiza-
tion, by laying off, discharging, or otherwise discrimi-
nating against our employees in regard to their wages,
hours, hire or tenure of employment or any other term
or condition of employment.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL, upon request, bargain collectively, in good
faith, with Local Lodge 1042 of the International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO, as the exclusive representative of our employees
in the appropriate unit described below with respect to
the employees' rates of pay, wages, hours of employ-
ment, and other conditions of employment, and WE
WILL embody any understandings reached in a signed
agreement. The appropriate unit is:
All mechanical and maintenance employees of the
Company at its facilities located at Swanton, Ohio,
including parts department employees, line service
employees, licensed mechanics, mechanic helpers,
the electronics mechanic and the janitor, but exclud-
ing all licensed pilots, office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
WE WILL discontinue the subcontracting of janitorial
work which we have made, and WE WILL offer Lloyd
Bailey immediate and full reinstatement to his former
job, without the reduction in his hours or schedule of
work which was made in January 1973, and without
prejudice to his seniority or other rights and privileges,
and WE WILL make Lloyd Bailey whole for any loss of
pay he may have suffered, with interest, because of his
constructive discharge by the company.
WE WILL make Daniel P. Hardy whole for any loss of
pay he may have suffered, with interest, because he was
laid off by the company in January 1973.
Dated By
CROW INC
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.-
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Suite 1695, Anthony Celebrezze
Federal Building, 1240 East 9th Street, Cleveland, Ohio
44199, Telephone 216-522-3715.