Drives, Inc.

National Labor Relations Board - Board Decisions

Jul 3, 1968

172 N.L.R.B. 969 (N.L.R.B. 1968)

DRIVES, INCORPORATED
Drives, Incorporated and District No. 102 , Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Cases 38-CA-255 and
38-CA-305'
July 3, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On October 31, 1967, Trial Examiner Abraham
H. Mailer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent and the General
Counsel filed exceptions to the Decision and sup-
porting briefs.
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
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions2 and
recommendations of the Trial Examiner, with the
following modifications.
1. Prior to Union's organizational campaign the
Respondent considered instituting a wage incentive
system and announced its intention to its em-
ployees. The incentive system was put into effect
shortly after it was developed, at a time which coin-
cided with the election campaign. The Employer
made several references to the plan during the cam-
paign, pointing out the advantages of the newly in-
' Case 38-RC-289, a consent election case originally consolidated with
the instant cases for hearing , was severed and remanded to the Regional
Director for Region 13 for further processing by an executive secretary's
order dated October 31, 1967 We have been administratively advised that
on December 21, 1967, the Regional Director sustained the objections and
set aside the election
Our action in reversing certain of the Trial Examiner 's findings of
8(a)( I)-violations (infra) is not to be construed as passing on the merits of
any of the objections in Case 38-RC-289 Such rulings are made by the Re-
gional Director pursuant to the consent election agreement executed by
the parties
r In the absence of exceptions , we adopt the Trial Examiner 's conclusion
that it was unnecessary to determine whether the Respondent 's conduct
with regard to the Advisory Board constituted domination as well as unlaw-
ful assistance However, the Trial Examiner recommended disestablish-
ment of the Advisory Board, a remedy normally ordered where domination
969
stituted plan to the employees. The Trial Examiner
found that although it was "innocently conceived"
the Respondent used the plan to infringe on the
employees' freedom of choice, thus violating Sec-
tion 8(a)(1) of_the Act.3 We are unable to agree
with the Trial Examiner's conclusion. The plan was
conceived and developed prior to the campaign and
the employees were so notified. The Respondent
put into effect a previously planned benefit, and
pointed out a lawfully existing benefit during the
campaign. We find that this conduct was lawful and
was not engaged in for the purpose of impinging
upon-the employees' Section 7 rights.'
2. Two weeks prior to the election conducted in
Case 38-RC-289, the Respondent mailed to its em-
ployees a form for a survey of their attitudes and
opinions relating to their work Specifically, the
survey consisted of the employee's rating of his su-
pervisor, his working conditions, and his pay rela-
tive to other places of employment. Two questions
dealt with employees attitudes toward a union. Em-
ployees were requested to return the completed
survey to the plant, and were cautioned not to sign
the survey form, or indicate their identities in any
manner . The cover letter accompanying the survey
indicated that the Respondent would study the
results of the survey and "begin as rapidly-as possi-
ble to make those improvements that the majority
of you indicate should be made consistent with our
financial ability to do so." Subsequent to the survey
certain improvements were made in the plant.
The Trial Examiner found and we agree that the
timing of the survey in relation to the election,
together with the implied promise to improve work-
ing conditions, constituted unlawful interference
with the rights of employees and was violative of
Section 8(a)(1) of the Act.
The Trial Examiner further concluded that as the
employees were not required to complete and
return the survey form, the Respondent did not un-
lawfully interrogate the employees by conducting
the survey. As a determination as to whether the
survey itself constituted unlawful interrogation
has been found As we have only found that the Respondent has unlawfully
assisted the Advisory Board , we conclude that the normal remedy of a
cease-and -desist order and a withdrawal of recognition is appropriate here
and we have modified the Order accordingly
We agree with the Trial Examiner that Respondent violated Sec 8(a)(1)
by denying employees permission to attend the representation hearing, and
threatening to discharge them if they did attend, because we find that
Respondent 's motivation therefor was not legitimate business considera-
tions, but hostility to the Union and a desire to interfere with the organiza-
tional activities of its employees
' N L R B v Exchange Parts Company, 375 U S 405
' Member Brown would adopt the Trial Examiner 's 8(a)(I) finding for
he believes that the incentive plan was instituted in the pressroom and
promised to the other employees shortly before the election in order to in-
fluence the employees'vote in the election
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not materially change the remedy herein, we
find it unnecessary to consider or pass on the Trial
Examiner's additional conclusion.
3. We disagree with the Trial Examiner's conclu-
sion that the Respondent's preelection campaign
created the impression that a strike was inevitable if
the employees selected union representation. The
Respondent here spoke only of the ability of the
Union to call a strike, and the risk of a strike if the
Union won the election. As we find the Employer's
election campaign did not characterize a strike as
inevitable, we conclude it did not violate Section
8(a)(1) of the Act.5
The Respondent also told employees that if they
selected the Union the Company might lose some
business, which would result in a cutback of em-
ployment. One of the Employer's campaign letters
discussed the theory that unionization would mean
that the Company could not absolutely guarantee
delivery because of the possibility of work stop-
pages, and absent such a guarantee several
customers might give orders to some other firms in
order to assure themselves a continuing supply of
the product. The Trial Examiner found this was
part of an effort to appeal to fear, and part of a
campaign which was intended to interfere with the
employees' Section 7 rights. We do not agree with
this conclusion. The Respondent's statements were
not indications of inevitable results of union
representation, but merely predictions of possible
economic consequences of the employees selecting
the Union. We do not view the expression of
Respondent's opinion of possible economic con-
sequences of the employees' action as a violation of
Section 8(a)( I) of the Act.6
4. Contrary to the Trial Examiner we conclude
that the Respondent violated Section 8(a)(3) by
refusing to rehire Patricia Tadlock. Tadlock was ac-
tive in the Union's campaign, a fact known by the
Respondent. Specifically, Foreman Van Dyke,
when questioning Blaine Kostielney about the
source of union authorization cards, stated that he
knew "it was Pat Tadlock, and . . that Whitten
[the general foreman] knew it. He was gonna take
care of it."
Tadlock quit the Respondent's employment in
October, but on February 10, 1967, she telephoned
Hogue, the personnel manager, and asked him if
Respondent was hiring. Hogue replied in the nega-
tive. Tadlock then asked if the Respondent would
be hiring, and Hogue informed her that it probably
would, and when they had a job that they felt she
5 Cf Formes Company, 160 NLRB 835
6 Formex Company, supra
Member Brown disagrees He finds in the preelection speech and letters,
which are quoted in the Trial Examiner 's Decision, a sustained emphasis on
could do they would call her. Thereafter, Tadlock
called Respondent's office at least weekly and
inquired as to the availability of employment. The
response was always negative. On March 14 she ap-
plied for employment in person at Respondent's of-
fice, but was not rehired.
During this time Respondent was having a large
turnover of help. From January 1, 1967, to the date
of the hearing Respondent had been actively seek-
ing new employees by means of newspaper and
radio advertisement, and through employment of-
fices.
The Trial Examiner concluded that the Respon-
dent did not violate Section 8(a)(3) because of its
actions on March 14, the date Tadlock applied at
the Respondent's office. Specifically, on that date
Hogue checked with two supervisors, Van Dyke
and Poel, who Tadlock claimed had indicated a
desire to have her return to work. Hogue stated
that Van Dyke told him that Tadlock had been
dissatisfied with her earlier employment with
Respondent, and he did not care to have her back.
The Trial Examiner concluded that the Respon-
dent's refusal to rehire Tadlock was based on this
previously demonstrated dissatisfaction. However,
as indicated by Van Dyke's earlier interrogation of
Kostielney, both he and the general foreman knew
of Tadlock's active participation in the organiza-
tional campaign, and specifically of her distribution
of authorization cards, and Van Dyke then at-
tributed to the general foreman the attitude that
"he [the general foreman] was gonna take care of
it." Van Dyke was therefore familiar with higher
management's hostility to the Union in general and
to Tadlock in particular; thus his answer to Hogue
is of little probative weight in supporting Respon-
dent's asserted reason for refusing to recall
Tadlock.
Furthermore, the Trial Examiner disregarded the
Respondent's earlier refusal to consider rehiring
Tadlock on and after February 10, at a time when
the Respondent was actively seeking new em-
ployees. On February 10, and on subsequent dates
when Tadlock telephoned Respondent inquiring
about employment, she was told that Respondent
was not hiring The basis for Respondent's later as-
serted reason for refusing to rehire Tadlock was not
deemed a factor or even considered until over I
month after she first requested reemployment. In
view of Respondent's union animus, its knowledge
of Tadlock's active participation in the union cam-
paign, and its active recruitment of new employees,
the probability of job loss because of strikes and loss of customers if the
Union was victorious in the election, and he would therefore adopt the
Trial Examiner 's 8(a)( I) finding here
DRIVES, INCORPORATED 971
it is clear that the Respondent refused to consider
Tadlock for rehiring on and after February 10,
1967, because of her union activities, which con-
duct we find violated Section 8(a)(3) and (1) of
the Act.
5. The Trial Examiner's Recommended Order
directs that the Respondent make whole all em-
ployees who were entitled to, but failed to receive,
a pay raise during the Union 's organizational cam-
paign . The complaint alleged and the Trial Ex-
aminer found that the Respondent violated Section
8(a)(3) and ( 1) by its denial of a wage increase to
employee Leon Wyncoop. As the Recommended
Order extends beyond the scope of the complaint
and the findings, we shall modify the Order ac-
cordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Drives, Incorporated, Fulton, Illinois , its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing the Advisory Board as the bar-
gaining representative of any of its employees for
the purpose of dealing with the Company concern-
ing grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of em-
ployment, unless and until said labor organization
shall have demonstrated its exclusive majority
representative status pursuant to a Board-con-
ducted election among the Employer's employees.
(b) Discouraging membership in District No.
102, International Association of Machinists and
Aerospace Workers, AFL-CIO, or in any other
labor organization of its employees, by refusing to
hire, discharging, or in any other manner dis-
criminating against employees in regard to hire and
tenure of employment or any term or condition of
employment.
(c) Promising improvement of working condi-
tions and/or wages in violation of Section 8(a)(1)
of the Act.
(d) Withholding semiannual wage increases
from employees in violation of Section 8(a)(1) and
(3) of the Act.
(e) Interrogating employees concerning their
membership in, or activities on behalf of, District
No. 102, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
labor organization of its employees, in a manner
constituting interference, restraint, or coercion
within the meaning of Section 8(a)(1) of the Act.
(f) Giving its employees the impression of en-
gaging in surveillance of the union activities of its
employees.
(g) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist any labor organization, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in other concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all
such activities.
(h) Refusing , upon request , to bargain collec-
tively with District No. 102, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of all em-
ployees in the following appropriate unit:
All production and maintenance employees
employed by the Respondent at its Fulton, Il-
linois , plant; but excluding office clerical em-
ployees, professional employees, guards, and
supervisors as defined in the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Blaine Kostielney immediate and
full reinstatement to his former or substantially
equivalent position (if Respondent has not already
done so), without prejudice to his seniority or other
rights and privileges , dismissing if necessary any
employees hired subsequent to his discharge, and
make him whole for any loss he may have suffered
as a result of the Respondent's discrimination
against him in a manner set forth in the section of
this Decision entitled "The Remedy."
(b) Offer to Patricia Tadlock employment at a
wage scale and with the same seniority and other
rights as if she had been hired 5 days after she
made her first request for reemployment on
February 10, 1967, and make her whole for any
loss she may have suffered by reason of the dis-
crimination against her, with interest thereon at the
rate of 6 percent per annum.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all records necessary for the determination
of the amount of backpay due.
(d) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their rights to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(e) Make whole Leon Wyncoop for any loss of
pay he may have suffered by reason of the dis-
972 DECISIONS OF NATIONAL
criminatory denial of the pay raise to which he was
entitled, with interest thereon at the rate of 6 per-
cent per annum.
(f) Upon request, bargain collectively with Dis-
trict No. 102, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, as the ex-
clusive representative of the employees in the ap-
propriate unit with respect to rates of pay, wages,
hours of employment, and other conditions of em-
ployment and, if an understanding is reached, em-
body such understanding in a signed agreement.
(g) Withhold all recognition from the Advisory
Board as the exclusive representative of the em-
ployees for the purpose of dealing with it concern-
ing wages , rates of pay, hours of employment, or
other terms and conditions of employment, unless
and until such labor organization shall be certified
by the Board as the exclusive bargaining represen-
tative of such employees.
(h) Post at its Fulton, Illinois , plant copies of the
attached notice marked "Appendix."7 Copies of
said notice, on forms provided by the Officer-In-
Charge of Subregion 38, after being duly signed by
an authorized representative of the Respondent,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous
places, including all places where notices to em-
ployees 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.
(i) Notify the Officer-In-Charge, in writing,
within 10 days from the date of this Decision and
Order, what steps Respondent has taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
After a trial at which all sides had the chance to
give evidence, the National Labor Relations Board
found that we, Drives, Incorporated, violated the
National Labor Relations Act, and ordered us to
post this notice to inform our employees of their
rights.
The Act gives all employees these rights:
To organize themselves
LABOR RELATIONS BOARD
To form, join, or help unions
To bargain as a group through a
representative they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things
The Board has also ordered us to assure our em-
ployees that:
WE WILL NOT do anything that interferes
with these rights.
You are free to join District No. 102, In-
ternational Association of Machinists and
Aerospace Workers, AFL-CIO, or any
other union.
WE WILL NOT give the impression that we
have spied on your union activities.
WE WILL NOT ask you anything about a
union or whether you favor it.
WE WILL NOT threaten to fire you, make you
quit, refuse to hire you, or treat you differently
in any way if you join or work for a union, or
talk to other employees about a union.
WE WILL NOT recognize the Advisory Board
as the exclusive representative of our em-
ployees with respect to rates of pay, wages,
hours of employment, and other conditions of
employment, unless and until such labor or-
ganization shall be certified by the Board as
the exclusive bargaining representative of such
employees.
The National Labor Relations Board found that
when we made Blaine Kostielney quit, we did this
because he was for the Union. The Board found
that this violated the Act.
WE WILL offer him back his job and seniority
and we will make up the pay he lost and also
pay him 6 percent interest.
The National Labor Relations Board found that
we refused to rehire Patricia Tadlock because she
was for the Union. The Board found that this vio-
lated the Act.
WE WILL offer her a job and seniority as if
she had been hired 5 days after she applied for
a job and we will make up the pay she lost and
also pay her 6 percent interest.
The National Labor Relations Board found that
we failed and refused to give a semiannual pay raise
to Leon Wyncoop who was entitled thereto during
the Union's campaign.
WE WILL make up the additional pay he lost
and also pay him 6 percent interest.
The National Labor Relations Board found that
our conduct prevented our employees from freely
indicating whether they wanted District No. 102,
International Association of Machinists and
Aerospace Workers, AFL-CIO, as their collective-
DRIVES, INCORPORATED 973
bargaining representative and has therefore set
aside the election and has ordered us to bargain
with the Union.
WE WILL, upon request, bargain collectively
with District No. 102, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of
the employees in the appropriate unit with
respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment
and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL notify Blaine Kostielney and
Patricia Tadlock if presently serving in the
Armed Forces of the United States of their
right to full reinstatement upon application in
accordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
DRIVES, INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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 Subregional
Office, Fourth Floor, Citizens Building , 225 Main
Street, Peoria, Illinois 61602, Telephone 673-9282.
TRIAL EXAMINER'S DECISION
ABRAHAM H. MALLER, Trial Examiner: In Case
38-RC-289, pursuant to a Stipulation for Certifica-
tion Upon Consent Election, an election by secret
ballot was held on November 4, 1966.' A tally of
the ballots showed that there were approximately
141 eligible voters and that 129 ballots were cast,
Df which 53 were for District No. 102, International
Association of Machinists and Aerospace Workers,
AFL-CIO, the petitioner, herein referred to as the
Union, 72 were against the Union, and 4 were chal-
lenged. The Union filed timely objections to con-
duct affecting the results of the election.
Thereafter, on March 24, 1967, the Regional
Director for Region 13 issued and served upon the
parties his report on objections in which he found
that the objections raised issues which could best
be resolved on the basis of record testimony and/or
other testimony developed at a hearing. He also
noted that the objections included allegations which
are also the subject of charges and amended
charges filed by the Union in Case 38-CA-255. Ac-
cordingly, he ordered that a hearing be held to
resolve the issues raised by the objections and that
such hearing be consolidated with the hearing in
Case 38-CA-255 and that the Trial Examiner
designated for the purpose of conducting the hear-
ing prepare and cause to be served on the parties a
report containing resolutions of credibility of wit-
nesses, findings of fact, and recommendations to
him as to the disposition of said issues, and that
thereafter Case 38-RC-289 be severed and trans-
ferred to him for further processing.
In Case 38-CA-255, the Union filed a charge on
November 14, a first amended charge on
November 29, and a second amended charge on
March 8, 1967. Upon said charges, the Acting Of-
ficer-In-Charge of Subregion 38 of the National
Labor Relations Board, herein called the Board, on
March 22, 1967, issued a complaint on behalf of
the General Counsel of the Board against Drives,
Incorporated, alleging violations of Section
8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act. In the meantime, on March
16, 1967, the Union filed another charge against
the Respondent in Case 38-CA-305. On March 29,
1967, the Officer-In-Charge of Subregion 38 issued
an order consolidating for hearing the two com-
plaint cases mentioned above and the representa-
tion case, and on April 21, 1967, the Acting Of-
ficer-In Charge of Subregion 38 issued an
amended, consolidated complaint consolidating the
above-mentioned complaint cases and the represen-
tation proceeding. In its duly filed answers to the
original and amended consolidated complaints,
Respondent denied the commission of any unfair
labor practice.
Pursuant to notice, a hearing was held before me
on May 23, 24, and 25, 1967, at Clinton, Iowa. All
parties were represented and were afforded full op-
portunity to be heard and to introduce relevant
evidence. At the opening of the hearing herein,
counsel for the General Counsel asked and ob-
tained leave to file a second amended consolidated
complaint alleging, in addition, violations of Sec-
tion 8(a)(2) of the Act and additional violations of
Section 8(a)(1) of the Act. The new matters al-
leged in the second amended consolidated com-
plaint were based on a first amended charge filed
by the Union on May 19, 1967. Respondent was
permitted to answer orally the new allegations set
forth in the second amended consolidated com-
plaint, and denied the commission of any unfair
labor practice. At the close of the hearing all
' All the events in the instant proceeding , unless otherwise specified, oc-
curred in 1966
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties were given the opportunity to present oral
argument and to file briefs with me. Briefs were
filed by counsel for the General Counsel and by the
Respondent.
Upon consideration of the entire record, includ-
ing the briefs of the parties, and upon my observa-
tion of each of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, an Illinois corporation, with its principal
place of business located in Fulton, Illinois, where it
is engaged in the manufacture and sale of chains,
augers, and related products. During the calendar
year preceding the issuance of the amended con-
solidated complaint, Respondent sold and shipped
goods and materials valued in excess of $50,000
from its Fulton, Illinois, plant directly to points
located outside the State of Illinois. During the
same period of time, Respondent purchased goods
valued in excess of $50,000 directly from points
located outside the State of Illinois. In view of the
foregoing, I find and conclude that the Respondent
is engaging in commerce within the meaning of the
Act and that it will effectuate the policies of the
Act for the Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
District No. 102, International Association of
Machinists and Aerospace Workers, AFL-CIO, is,
and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
1. Whether the Respondent coerced or
restrained its employees or interfered with their
rights under the Act, in violation of Section 8(a)(1)
of the Act.
2. Whether the Respondent constructively
discharged Blaine Kostielney, in violation of Sec-
tion 8 (a)(3) of the Act
3. Whether the Respondent violated Section
8(a)(3) of the Act when it refused to rehire
Patricia Tadlock.
4. Whether Respondent violated Section 8(a)(3)
of the Act when it denied a wage increase to Leon
Wynkoop.
5. Whether the Respondent assisted and
dominated the Advisory Board, in violation of Sec-
tion 8 (a)(2) of the Act.
6. Whether the Union represented a majority of
the employees of the Respondent when it requested
recognition and bargaining.
7. Whether the Respondent's refusal to bargain
was based on a good-faith doubt as to the Union's
majority.
8. Whether the objections to the election should
be sustained.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union 's Organizing Campaign
On August 17, Edward Pope, union representa-
tive, met with some of the employees of Respon-
dent at an employee's home in Fulton , Illinois.
Among those present were Kenneth Tadlock,
Patricia Tadlock, his wife, and James Ven Huizen
The employees present signed cards designating the
Union as their collective-bargaining representative.
They were also made official union organizers and
given 25 to 30 union cards with which to solicit the
participation of other employees. Subsequently,
Leon Wynkoop and Blaine Kostielney were among
the employees who were also made union or-
ganizers . By September 22, approximately 85 em-
ployees out of a unit of 155 production and main-
tenance employees of the Respondent had signed
union cards. On that day, the Union sent to the
Respondent a letter which Respondent in its answer
admitted receiving on September 23, reading as fol-
lows:
This is to advise that a majority of your
Production and Maintenance employees have
authorized and designated District No. 102, In-
ternational Association of Machinists and
Aerospace Workers, AFL-CIO, as their bar-
gaining representative in all matters regarding
wages, hours of work, working conditions, and
other conditions of employment.
Should there be any good faith doubt on
your part of the Union's majority status, please
advise and the Union will immediately submit
proof of our majority status to some mutually
agreeable impartial third party, such as a
Minister, a Rabbi, a Priest, or a member of the
Federal Mediation and Conciliation service for
the purpose of ascertaining same.
This will serve as the Union's request that
the Company recognize and bargain collective-
ly with the Union and negotiate to a conclusion
the terms of a collective bargaining agreement
regarding all matters pertaining to wages,
hours of work, working conditions, and other
conditions of employment . Please treat this
request for recognition as the majority
representative of the employees in said unit as
a continuing request ; and in the interim it is ex-
pected and requested that all matters remain
unchanged unless a mutual understanding has
been reached with the Union. We stand ready
and willing to meet with your designated
representatives at an early date , mutually
agreeable to the parties, to conclude such
negotiations.
Receiving no response to its demand, the Union
on September 26 filed a petition with Subregion 38
of the Board, requesting an election and sent 89 ex-
DRIVES , INCORPORATED 975
ecuted union cards to support its petition. On the
same day, the Respondent sent a letter to the Union
which read as follows:
We have received your "Certified Mail, Return
Receipt Requested" Letter regarding recogni-
tion.
In this letter we believe that you are asking us
to deny our Employees the "American" right
to vote and decide for themselves whether they
want you to represent them. We feel you also
request indirectly, on your word only, that all
our Employees be committed to paying into
your funds thousands of dollars in Dues; Spe-
cial Assessments, and Strike Funds and that
this Company absorb additional thousands in
the cost of handling Union Activities.
You will remember that you sent a similar
request to us four years ago and that a secret
ballot vote showed a result of 5 1 against to 6
for your union and after you had convinced the
"Federal Labor Relations Board" that you
represented our Employees. Your action in this
instance was very costly to us.
We also feel that your attempt to involve the
Clergymen in this area in your program of
Union Organization Activities is an insult to
them and to the fine Christian Community, our
Employees and the Managers of Drives, Inc.
As you and your large staff of Union Lawyers
know, all you have to do is ask the "Labor
Relations Board" to verify the fact that you
represent our Employees and they will call for
a vote. We refuse to fall into the trap outlined
in your letter for the sake of our Employees
and the People of the Fulton Area who know
the value of having and keeping a Progressive
and Industrious Industry in this Community.
We have great respect for our Employees Wel-
fare and their Wishes. Please accept this Letter
as a rejection to your demand for Union
Recognition.
Thereafter, an Agreement for Consent Election
was entered into and approved, and an election was
set for November 4. Following the Union's demand
for recognition, the Respondent engaged in a
vigorous campaign against the Union. The Respon-
dent's conduct will be discussed infra.
B. Alleged Restraint , Coercion, and Interference
1. Interrogation of, and threats to, Bernard
Kostielney
Early in September , Blaine Kostielney gave his
brother Bernard a union card at the plant shortly
after quitting time.2 Howard Wiebenga, foreman of
the press department, was present. The following
day, Foreman Wiebenga asked Bernard Kostielney
what Blaine had given him the day before. Bernard
Kostielney told him that it was a union card;
whereupon Foreman Wiebenga said , "Anyone
caught signing them in the plant or distributing
them out would be fired right on the spot." A few
days later, Bernard Kostielney went to the office of
Maurice Hogue, Respondent's personnel manager
to discuss a problem. While he was there, Hogue
asked Bernard Kostielney if he had signed a union
card. Bernard Kostielney admitted that he had
signed one . Personnel Manager Hogue then said
that "anyone caught signing them in the plant or
distributing them out would be disposed of."
The foregoing is based upon the credited
testimony of Bernard Kostielney. Personnel
Manager Hogue testified that, although he had
talked to Bernard Kostielney in his office several
times, he did not talk to him about the Union.
Despite Personnel Manager Hogue's denial, I am
inclined to credit the testimony of Bernard Kostiel-
ney, who is no longer employed by Respondent and
who appeared pursuant to a subpena. Bernard
Kostielney would be more apt to remember a single
conversation with the personnel manager, whereas
Hogue as personnel manager undoubtedly had con-
tact with many employees and would be less apt to
remember in detail each conversation that he had
with the employees. Thus, he testified that he had
no recollection of a girl named Judith Meekum
being fired by Foreman Van Dyke. However, Van
Dyke testified that he had fired a girl named Judith,
had written up a report on the incident, and had
given it to Hogue In sum , Hogue's memory may
not be reliable in this instance.
Accordingly, I find and conclude that Hogue in-
terrogated and threatened Bernard Kostielney in
violation of Section 8(a)(1) of the Act.3
2 Interrogation and threats by General Foreman
Lloyd Shaver
Around the end of September, General Foreman
Shaver approached Leon Wynkoop at the latter's
bench and asked if he could have a man-to-man
talk with him. Wynkoop answered in the affirma-
tive. General Foreman Shaver then asked Wyn-
koop, "How do you feel about the union? What can
the union do for you?" Wynkoop and Shaver then
discussed the Union and the effect that it would
have on the plant and on working conditions. Dur-
ing the course of the conversation, Shaver said that:
... the majority of our business was based
' As there are two Kostielneys, Bernard Kostielney is identified herein by
his full name , whereas Blaine Kostielney , also known in the plant as Jim
Kostielney, is referred infra by his last name only
' The General Counsel did not allege that Foreman Wiebenga 's threat to
Bernard Kostielney was violative of the Act, nor does he so argue in his
brief Accordingly, I make no finding of a violation in this regard However,
Wiebenga's participation in the event can and does form the basis for the
subsequent interrogation and threat by Hogue , for I infer from the
sequence of events that the incident was reported to Hogue by Wiebenga
That the incident did occur rests not only on the credited testimony of
Bernard Kostielney , but also on the fact that Respondent did pot call
W iebenga to deny it
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on repeat customers that was confident in ob-
taining their products from our company, due
to the fact that it wasn't union and there would
be no strike. That we would very likely lose
those customers.
... they couldn't rely on our reliability of
obtaining the products, due to the fact that we
were unionized and probably evidently be out
on strike.
Shaver admitted that he had a conversation with
Wynkoop to ask him if the employees who were
against the Union would be forced to join if the
Union won the election, but denied threatening
Wynkoop. However, Shaver did not deny the
foregoing statement attributed to him by Wynkoop.
It would therefore appear that Shaver did not re-
gard the foregoing statement as coercive. The
Board, however, has held that it is. Harvard Coated
Products Co., 156 NLRB 162.
On another occasion, in October 1966, employee
James Ven Huizen was stopped in the toolroom by
Les Whiting, another employee, who attempted to
argue with him against the Union. Ven Huizen
refused to argue with Whiting and told him that he
did not want to discuss the subject until after work.
Shortly after Ven Huizen teturned to his job,
Foreman Shaver approached him and told him that
"if I was talking Union talk, I could be fired on the
spot." Foreman Shaver denied talking to Ven Hu-
izen. I do not credit his denial. Shaver's testimony
revealed a lack of frankness. Thus, he did not want
to admit that Blaine Kostielney was a good worker,
a fact which Foreman Van Dyke readily admitted
and which was corroborated by employee Wintjen.
Accordingly, I find and conclude that the
aforesaid conduct of Foreman Shaver was violative
of Section 8(a)(1).4
3. Threat by Foreman Richard Drury
At lunch periods during the Union's organiza-
tional campaign, some of the employees discussed
the Union. Wynkoop argued for organization. On
one occasion, the discussion became particularly
heated, with Wynkoop arguing for the Union. After
the whistle blew and the employees returned to
work, Richard Drury who was Wynkoop's foreman
approached Wynkoop and told him that "I should
watch myself or my news wouldn't be so good."
The statement was made at a time when Wynkoop
was expecting a semiannual wage increase.'
Foreman Drury's statement made in connection
with Wynkoop's expectation of a wage increase was
reasonably calculated to, and was made for the ob-
vious purpose of, restraining Wynkoop in the exer-
cise of his right openly to support the Union and
was therefore in violation of Section 8(a)(I) of the
Act, and I so find.
4. Threats and impression of surveillance by
Foreman Gilbert Van Dyke
Gilbert Van Dyke, foreman of the roller chain
department, admittedly had several conversations
with employee Blaine Kostielney about the Union.
According to the credited testimony of Kostielney,
he was at the back door of the roller chain depart-
ment shortly after lunch when Foreman Van Dyke
saw a union card in his pocket. Van Dyke asked
Kostielney where he got the card, and Kostielney
replied, "A girl gave it to me." When Van Dyke
asked who the girl was, Kostielney refused to tell
him. Van Dyke then said he knew "it was Pat
Tadlock, and ... that Whitten [general foreman]
knew it. He was gonna take care of it."
In subsequent conversations with Kostielney,
Foreman Van Dyke told him that "if the union got
in, we'd lose our Christmas bonus, our monthly
bonus, we'd make less money, 'cause we had to pay
the union dues; and he said that the company
would probably close the doors if the union got in."
During another conversation Foreman Van Dyke
told Kostielney, "If I was you, I wouldn't step out of
line on this union deal." He also told Kostielney
that Personnel Manager Hogue "knew who the in-
stigators were, and they were gonna get fired."
Kostielney asked Van Dyke if he was going to get
fired, and Van Dyke replied, "No, but if Whitten
[general foreman] knew what I knew about it,
you'd get fired." During another conversation
which occurred at the 550 bench, Foreman Van
Dyke told Kostielney that "Whitten was gonna
make it mighty damn hot on everyone around
there, until this union deal was cleared up."
The foregoing is based upon the credited
testimony of Blaine Kostielney. Although Van Dyke
admitted that he had had several conversations with
Kostielney regarding the Union, he testified that he
never made any statements about the Union. I find
it difficult to believe that these conversations about
the Union, which Van Dyke admittedly held with
Kostielney, consisted of monologues by Kostielney.
Under all the circumstances, including my observa-
tion of Van Dyke's demeanor while testifying, I do
not credit his denials.
Foreman Van Dyke's statements to Kostielney
were violative of the Act in several respects: The
threat of loss of a Christmas bonus if the Union got
- ' The fact that, during the Union's organizational campaign , the Respon-
dent issued instructions to its supervisors not to engage in interrogation,
threats, etc is of no avail to the Respondent in this regard or in relation to
other instances of violations of Sec 8(a)( I) by supervisors infra inasmuch
as there is no showing that the employees were ever apprised of these in-
structions , nor does it appear that Respondent ever attempted to ascertain
whether its instructions were being carried out N L R B v Landis Tool
Company, 145 F 2d 152, 155 (C A 3), enfg 51 NLRB 718, N L R B v
Laufer-Kauffmann Aircraft Corporation, 144 F 2d 9, 13 (C A 8 ), enfg 52
NLRB 261
' The credited testimony of Wynkoop. Foreman Drury was not called as
a witness to deny Wynkoop's testimony
DRIVES , INCORPORATED 977
in was clearly restraint , coercion , and interference,
in violation of Section 8(a)(1) of the Act. The
statement that Respondent would probably close its
doors if the Union came in, though stated as a
probability , cannot be considered as a mere opinion
or prediction , coming as it did from one identified
with management and, in the eyes of the em-
ployees, in a position to translate to them the views
of management . Shop Rite Foods , Inc., 141 NLRB
1013, 1021; Wilder Finishing Co., Division of Jervis
Corporation , 138 NLRB 1017 , 1018. Such a state-
ment had a reasonable tendency to coerce the em-
ployees in the exercise of their rights , and it was
therefore violative of Section 8(a)(1) of the Act,
and I so find . The statements that Van Dyke knew
that Tadlock had given Kostielney a card and that
Personnel Manager Hogue knew who the instiga-
tors were and that they would be fired gave Kostiel-
ney the impression that the employees ' union ac-
tivities were under surveillance . It is well settled
that giving employees "[a]n impression of surveil-
lance might well instill in the employee a fear of
reprisal from the employer " and "is violative of
Section 8(a)( I) as it could inhibit the right of em-
ployees to pursue their union activities untram-
meled by the fear of possible employer economic
coercion or other forms of retaliation " (N.L.R.B. v.
Ralph Printing & Lithographing Co., 379 F.2d 687
(C.A. 8)). See also Texas Coca -Cola Bottling Com-
pany, 146 NLRB 420, 433-434, enfd . 365 F.2d 321
(C.A. 5); Opal Cliffs Food Center, 148 NLRB 301,
303. Indeed , in the instant case , Van Dyke overtly
acted to instill a fear of reprisal when he added that
"he was going to take care of it."
5. Threats by General Foreman Ronald Whitten
A Board hearing in the representation proceed-
ing was scheduled to be held October 18. On that
day, Blaine Kostielney asked his foreman, Van
Dyke, for permission to attend the hearing. Van
Dyke denied that Kostielney told him he wanted to
go to the Board hearing , but admitted that he "fig-
ured" that Kostielney wanted to go to the hearing.
Admittedly , Van Dyke told Kostielney that he, Van
Dyke , would have to take the matter up with the of-
fice . About 45 minutes later , General Foreman
Whitten approached Kostielney and told him that
he could not leave the plant , that if he did, "I'll
have to pull your time card and it will be up to the
office ." According to Kostielney , he told Whitten
that the employees who wanted the Union thought
some of the employees ought to be at the meeting;
otherwise , there would be only company officials
and union officials there. Whitten replied that the
Union would have sent a letter asking for him if
they wanted him to attend . Kostielney then told
Whitten that he was a union organizer . According
to Whitten , Kostielney refused to tell him where he
wanted to go, but Whitten admitted that he thought
Kostielney wanted to attend the hearing. Whitten
also testified that he had two conversations with
Kostielney on October 18, and that it was only in
the second conversation which occurred in the af-
ternoon that Kostielney told him that he wanted to
attend the Board hearing . At that point , according
to Whitten , he told Kostielney that it was too late to
go and that the meeting was over at that time.
On the same day employee Larry Wintjen also
asked Foreman Van Dyke for permission to attend
the Board hearing . According to Wintjen, Van
Dyke did not reply to his request . Later, in the af-
ternoon , General Foreman Whitten came to Wint-
jen and asked him if he had asked for time off in
order to go to the Board hearing . When Wintjen
replied in the affirmative , Whitten said , " Anyone
who left the plant today without a good excuse like
being ill or something like that , that they would be
fired."
General Foreman Whitten remembered that Van
Dyke told him about Wintjen 's wanting to be off
and that he had told Van Dyke that he would talk
to Wintjen about it . Whitten also admitted that,
although he had talked to Wintjen that day, he
could not remember what the conversation was
about , and denied that he talked to Wintjen about
the request for time off.
It is undisputed that both Kostielney and Wintjen
had on many other occasions requested time off
and were never denied permission . This was the
only time that permission was denied to either of
them.
There can be no doubt that Kostielney and Wint-
jen, in requesting time off in order to attend the
Board hearing , were exercising the rights guaran-
teed them by Section 7 of the Act to " self-organiza-
tion ," to "assist labor organizations," and "to en-
gage in" concerted activities for "collective bar-
gaining or other mutual aid or protection." Con-
sequently, in refusing to permit them to take time
off and in threatening to discharge them if they left
the plant, Respondent was interfering with their
rights under Section 7 of the Act. Pearson Corpora-
tion , 138 NLRB 910, 918-920; Chautauqua Hard-
ware Corporation , 103 NLRB 723, 728-731, enfd.
208 F . 2d 750 (C.A. 2). There is no evidence in the
record that the presence of these men in the plant
on October 18 was required for production pur-
poses . To the contrary , Foreman Van Dyke in-
ferred that there were other employees who could
perform Kostielney 's work . Moreover , it is clear
from the testimony of Foreman Van Dyke and
General Foreman Whitten that the basis for
Respondent 's refusal to permit the two employees
to take off and the threats of firing them if they did
was Van Dyke's and Whitten's belief that Kostiel-
ney and Wintjen desired the time off in order to at-
tend the Board hearing . Accordingly , I find and
conclude that Respondent 's refusal to permit
Kostielney and Wintjen to take time off in order to
attend the hearing and the threats to these men that
they would be fired if they did take time off for that
354-126 O-LT - 73 - pt. 1 - 63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose were violative of Section 8(a)(1) of the
Act.6
6. Respondent 's institution of a wage incentive
system
Prior to the Union 's organizational campaign,
Respondent considered the feasibility of instituting
a wage incentive system in its plant . On June 2, it
sent a letter to the American Metal Trades,
requesting that it study the plant and set up job
classifications with a view of instituting a wage in-
centive system . By letter dated June 22 , Respon-
dent announced to its employees that it intended to
put an incentive system into effect in its plant. The
incentive system for the pressroom was ready to be
put into effect on October 4, but was delayed until
October 17 , when Respondent by letter announced
to its employees that the incentive system had been
put into effect that day in the press department and
soon would be effective throughout the production
departments.
If the matter had ended there , it might be con-
cluded that the Respondent 's action in putting the
incentive system into effect less than a month prior
to the election was purely a coincidence and was
not unlawfully ' motivated . Divco-Wayne Industries,
Inc., 154 NLRB 974, 977. Compare Betts Baking
Company, 155 NLRB 1313 However , Respondent
immediately began to capitalize on the wage incen-
tive system and used it repeatedly as an argument
to the employees that they did not need a union
Thus, in several talks to employees in various de-
partments in the latter half of October , Vice Pre-
sident Den Besten told the employees that it would
be possible for them to make more money under
the incentive system. According to the credited
testimony of employee Kenneth Tadlock, Den
Besten a week before the election told the em-
ployees that " he didn 't think the union was our way
out ... once we got piece work in the force, that
they could be able to pay us more money." Also,
employee James Ven Huizen testified credibly that
in one of his talks, Den Besten told them "how we
could do much better with piece work , than if we
had a union."
Respondent also emphasized the incentive system
as an argument against unionization in its letters to
the employees . Thus, in a letter dated October 26,
Respondent told its employees:
LET'S TALK ABOUT INCENTIVES
*
Drives Incorporated also has incentives:
1. Incentive to make this plant one of
the best paying plants in this part of the
country.
The new incentive plan will make it possible
for all concerned to achieve these goals.
We know from the results that have already
been achieved, that this incentive plan has pro-
vided substantial increases in the Press Depart-
ment, and it will be applied in all other Produc-
tion Departments as rapidly as possible.
Frankly we don't understand why the union
is against your making more money.
Our incentive plan is like putting you in busi-
ness for yourself, and you will not take a cut in
your present wages.
VOTE [X] NO, November 4th and protect
your Democratic way of living.
In another letter dated October 29, Respondent
wrote to its employees as follows:
LET'S TALK ABOUT WAGES
We feel with the new incentive plan, it will
enable all of you to increase your earnings sub-
stantially.
Some of our people on incentive have all
ready [sic] made as much as 40 cents per hour
above their day rate.
DON'T BE FOOLED BY UNION
PROPAGANDA
VOTE [X] NO-November 4th.
In view of the foregoing , it can hardly be said
that Respondent 's conduct in putting the incentive
plan into effect and in announcing it to the em-
ployees shortly before the election was pending was
purely coincidental . Rather, though innocently con-
ceived , the incentive plan was used by the Respon-
dent for "the express purpose of impinging upon
their [the employees '] freedom of choice for or
against unionization and ... [was] reasonably cal-
culated to have that effect" (N.L.R.B. v. Exchange
Parts Company, 375 U. S. 405 , 409). Accordingly, I
find and conclude that the Respondent 's conduct in
this regard was violative of Section 8(a)(1) of the
Act.
6 StandardPackaging Corporation, Royal Lace 'aper Division , 140 NLRB
628, and United Aircraft Corporation (Hamilton Standard Division), 144
NLRB 492, are distinguishable from the instant case In Standard Packag-
ing, the respondent relied upon its work schedule as the reason for its un-
willingness to release more than two employees to attend a decertification
hearing, and the Board pointed out that "there is no evidence in the record
which indicates any hostility on the part of Respondent toward the collec-
tive activity of its employees, whether for or against any of the labor or-
ganizations involved" (id at 630) In United Aircraft, the employee in-
volved sought time off in order to meet with the Board 's investigator during
working hours In holding that the employer 's conduct in refusing to permit
the employee to take time off for that purpose was not violative of the Act,
the Board pointed out that " the record shows that [the employee] did
meet with the Board agent that day after [ the employee 's] working
hours, and there is no claim that the Union's case was in any way preju-
diced thereby Because it found no reason compelling enough to justify an
interruption in its own business, the respondent denied the Union's request
that [the employee ] be excused during his working hours" ( 144 NLRB
at 494)
DRIVES, INCORPORATED 979
7. The Respondent 's attitudes and opinion survey
On October 21, Respondent mailed to its em-
ployees a form for a survey of their attitudes and
opinions . In the letter accompanying the survey
form, Respondent promised that it "will make an
immediate analysis of the surveys and begin as
rapidly as possible to make those improvements
that the majority of you indicate should be made
consistent with our financial ability to do so." The
letter requested the employees to bring in the
completed survey form to the plant on Monday,
October 24, and drop it into a designated box. Both
the letter and the survey form cautioned the em-
ployees not to sign the survey or to indicate their
identities in any manner . Treasurer Richard Kum-
merer testified that Respondent had decided to
take such a survey because employees were stand-
ing around talking in small groups, were grumbling
and were unhappy, and because the Company's ef-
ficiency was down and it was falling behind on or-
ders.
In general , the survey consisted of multiple cho-
ice questions which required merely a check mark.
However ,- several of the questions required the em-
ployee to write in his answers , and a space was pro-
vided for the employees to write in any comment
about any unfavorable situation or condition which
was not covered by the listed items . Briefly , the sur-
vey consisted of the employee's rating his superior,
his working conditions , and his pay relative to other
places of employment . Two items , however, dealt
with the employee 's attitude toward a union:
16. I don 't think we need a union in this plant
because : ( Check several if you wish)
-Company is doing all it can for employees at
the present time.
-I feel free to take grievances up with my
foreman, without outside help.
-I feel that union organizers are just after my
money.
-I feel that the management of this firm can
do a better job of providing job security for
me if left alone by outside union organizers.
-We would probably have a lot of strikes if
we had a union.
-I feel I am getting fair treatment by manage-
ment.
-I might lose my job if the union came into
this plant because of the unreasonable de-
mands that the union would make of the
company to back up their promises as they
have done at other plants that are now
closed.
-Company is having a tough time trying to
stay in business and a union could be the
"straw that broke the camel's back."
17. I think we need a union in this plant
because:
(Write in your answer)
Following the deadline for the return of the sur-
vey forms , Respondent sent a letter to the em-
ployees on October 26 entitled "LET'S TALK
ABOUT INCENTIVES" which has been previously
mentioned under the topic of the wage incentive. In
that letter , Respondent said inter alia:
Drives Incorporated also has incentives:
4. Incentive based on the results of the
survey to improve the working conditions
of this plant.
* * *
VOTE [X] NO, November 4th and protect
your Democratic way of living.
Also in his speech to the employees on
November 2, Kummerer said:
Let's talk about what you have in the way of
working conditions. We want to know the
things which you feel could be improved. We
feel that everyone works better and is happier
when working conditions are as pleasant as
possible. Your comments on the new survey
have pointed up some areas that perhaps we
had not given enough thought to up until this
time . We want to correct any conditions that
bother you, and will do so as we have the
money to make changes.
Kummerer admitted that after the survey,
Respondent improved the toilet facilities for the
women employees, installed new drinking foun-
tains , has been trying to clean up the shop, and
built a new room to improve the eating facilities for
the women employees.
With regard to the survey, the General Counsel
makes two contentions: First, that it constituted un-
lawful interrogation of the employees, in violation
of Section 8(a)(1) of the Act; and second, that the
r Vice President Den Besten testified that the foregoing improvements
were not the result of the survey , but had been decided upon before the
survey was sent out and were part of the Respondent 's expansion program
Den Besten admitted that he was responsible for contracting out the im-
provements and purchasing the various items involved , and that the Com-
pany had records regarding these matters However , Respondent did not
introduce any of these records to indicate when the improvements were or-
dered I do not credit Den Besten's testimony Den Besten denied that he
was interested in the employees ' attitude about the Union and testified that
he did not try to learn their opinions on this matter His testimony in this re-
gard is contradicted by items 16 and 17 in the survey which Den Besten ad-
mitted , when he was asked to look at the survey, were very clear on the
point
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timing of the survey implying the future granting of
benefits in the form of improved working condi-
tions interfered with the rights of the employees
under Section 7 of the Act, in violation of Section
8(a)(1) of the Act. In support of the first conten-
tion , the General Counsel relies principally upon
the case of Cannon Electric Company, 151 NLRB
1465 , where the Board found an employer 's survey
of employees ' attitudes and opinions about a recent
union campaign constituted interrogation in viola-
tion of Section 8(a)(1) of the Act. While the Can-
non case bears a marked resemblance to the instant
proceeding , there are significant differences which
make the case distinguishable from the instant case.
Thus in the Cannon case, the first three questions of
the survey related to the individual employee's sex,
length of employment with the respondent , and the
name of the department in which the employee
worked. This obviously facilitated identifying the
individual employee. In the instant case, the survey
asked the employees to indicate by a check mark
their department and to write in the name of the
foreman . It is apparent that identification of the
employee could be made with the aid of a hand-
writing expert, if Respondent wanted to go to the
trouble and expense of engaging one. More impor-
tantly, the employees in Cannon were brought into
a conference room in groups of 40 to 50 during
working hours and asked to fill out the survey and
leave it in a box by the door before leaving the
room . The Board noted that this circumstance im-
parted an atmosphere of compulsion, pointing out
at page 1471:
The employees did not appear voluntarily to
answer the questionnaire . They were brought
into the conference room from their work sta-
tions by their supervisors during working
hours, and requested to fill out the question-
naire before leaving the room. The atmosphere
was thus redolent with compulsion.
By way of contrast, in the instant case the em-
ployees received the questionnaire in the mail and
were asked to deposit it at work. Thus, employees
were free to answer the questionnaire or not to
answer it as they saw fit. As the element of compul-
sion was lacking in the instant case, I find and con-
clude that in conducting the survey, the Respon-
dent was not guilty of interrogation in violation of
Section 8(a)(1) of the Act.
The General Counsel's second contention, how-
ever, is meritorious and must be sustained . The tim-
ing of the survey in relation to the election , with its
implied promise by the Respondent to improve
working conditions as disclosed by the survey, fol-
lowed by Respondent's stated " incentive based on
the results of the survey to improve the working
conditions of this plant," which in turn was coupled
with the request that the employees vote against the
Union, was all part of a unified plan of the Respon-
dent which was reasonably calculated to influence
employees in the exercise of their rights guaranteed
in Section 7 of the Act. The conduct was also
designed to impress upon the employees that they
did not need a union to secure improvement of
working conditions . I therefore find and conclude
that Respondent thereby violated Section 8(a)(1)
of the Act. Flomatic Corporation, 147 NLRB 1304,
1306-07; Northwest Engineering Company, 148
NLRB 1136, 1139-40.
8. Respondent 's predictions of strikes , loss of jobs,
and effect upon its competitive position, in the
event the Union is certified
While the election was pending , the Respondent
engaged in a vigorous campaign against the Union,
consisting of speeches by management and letters
to the employees , in which it made frequent
references to the fact that unionization of the plant
would result in strikes and would have an adverse
impact upon the Company's position vis-a-vis its
competitors , with a resulting loss of jobs. In its
letter to the employees under date of October 14,
the Respondent , inter alia, asked:
Are they [ Union outsiders ] interested in peace
or will they produce unrest, strikes, and shut-
downs?
On October 31, it sent its employees a letter cap-
tioned "STRIKE STRIKE STRIKE ." In this letter, it
examined the "truth " of things "which the Union
had told you," in pertinent part as follows:
1. The Union says it can get you higher wages.
This is not true . The only thing the Union can
get you for sure is a Strike , which puts you out
of work and you can never make up the money
you lose while you're out of work....
2. The Union says it can get job security. This
is not true . Certainly , the right to strike isn't
job security. Whether you have a job or not de-
pends entirely on whether the company you
work for has enough orders from customers to
keep it in operation . If the union forces us to
raise our prices above our competitor, we lose
business and you lose your jobs. The way things
are right now, there is absolutely no reason why
this should happen. You've been able to work
steadily in the past and we want you to be able
to in the future.
*
VOTE NO in the election and protect your-
self against forking out a lot of money to big
time union organizers and risking a STRIKE
which puts you out of work, .. .
On the same day, Respondent sent its employees
a letter signed by Gerry Kopf, sales manager, enti-
tled "AN OPINION REGARDING THE STATUS
OF DRIVES, INC., AND THE -PROSPECT OF
DRIVES , INCORPORATED
HAVING A UNIONIZED SHOP." In pertinent part
the letter read as follows:
Why has the company expanded so fast? Per-
haps our customers have the answers to that.
There are four major suppliers of agricultural
chain. Ours is the only non-union supplier.
Purchasing agents appreciate having at least
one source to pull them through strike periods
with other suppliers. We have realized con-
siderable growth because we are non -union.
Hardly a week passes but what some customer
asks me of our union status .... These
customers know too that our company is flexi-
ble enough to come up with new dies and new
products, and can adjust quickly to a change in
their orders . Union shops generally restrict ad-
justments of this nature until it hurts business
for a company....
To my thinking , the presence of a union could
be most detrimental to our company because
of this capital situation . Older established com-
panies can weather the shock of a strike or two
because they have various divisions , and have
working capital. On the other hand, Drives,
Inc. because of its newness is prone to im-
mense harm if the present pattern is at all
disrupted . Our customers are always aware of
this too, and this is the reason they constantly
ask about our union status . They can't afford
to take the chance in this time of short supplies
and long lead times to work with a shaky sup-
plier . In the case that our employees became
unionized , it is my opinion that labor leaders
from outside our area would be involved in the
case of a strike, and would not be as con-
siderate of the precarious situation of a small,
one-product, new company, having had most
of their fighting experiences with large cor-
porations. This very thing had been pointed
out to me in two communities within two hun-
dred miles of Fulton at LaCrosse, Wisconsin
and Ottawa, Illinois . Small company deaths oc-
cured [sic] here due to unrealiztic labor de-
mands and almost devestated [sic] these com-
munities five to ten years ago. When it was too
late and the big labor representatives had left
town, the local laborers came back offering to
work at reduced levels in order to hold the
companies in these localities.
On November 1, Respondent sent its employees
a statement purporting to compare the claims of
the Respondent and that of the Union. The docu-
ment consisted of two columns one headed
"DRIVES, INC.," the other, "IAM UNION."
Under the topic "Job Security," the Respondent in
its column stated in part: "With no union, we can
get more than our share of the business in our field
because we can guarantee delivery: No strikes-No
lock-outs-No slow-downs, etc." In the opposite
column labeled IAM UNION, Respondent made
the following statement:
981
Clinton Engines at Maquoketa had the IAM
union and today there are 800 people out of
work at this plant.
Herman Nelson at Morrison had the IAM
union and that plant is also closed up.
Under the topic "STEADY WORK," Respondent
in the IAM column stated:
Due to strikes and seasonal "ups and downs"
no IAM union plant in this area has this good a
record . Clinton Engines & Herman Nelson are
closed up-no work.
On November 2, Treasurer Richard Kummerer
read a prepared speech to the employees on com-
pany time. In pertinent part, Kummerer's speech is
as follows:
This union will promise you many things
which it cannot give. The reason it cannot give
these things is because these promises can't
possible be met and still keep our plant in
operation. If that comes to pass, just keep in
mind that we will no longer be your employer,
so you will have to look to the UNION for your
job security; wages; vacations, etc. In fact, one
of the things the union has been talking about
is increasing the rates of pay. The truth is, the
only rate of pay they can guarantee is the rate
they pay for picket duty, which I understand is
about $25.00 per week! The only vacation they
can guarantee is a striker 's vacation.
Perhaps the most important thing that you
should consider when you vote on Friday-is
that this election concerns YOU MORE
DIRECTLY than any election you have every
[sic] voted in. It affects your pocket, your JOB
SECURITY. Here's why: When Joe and Gerry
go into a customer's place of business and asks
them for an order for our chain, the first
question that they ask is, "CAN YOU
GUARANTEE DELIVERY?" Granted, the
price and quality have to be good; but the most
important thing to our customers is that they
can be sure of getting our chain on time so that
their production lines won't be shut down.
So far, we have been able to answer "YES-
WE CAN GUARANTEE DELIVERY."This
has given us a tremendous advantage in getting
orders which, in turn, has given YOU regular
work-52 paychecks a year, or 352 paychecks
during the last 7 years.
Now, if we had a union we couldn't say
"YES-WE CAN GUARANTEE
DELIVERY" because how would we know
when the union might call a STRIKE; OR A
SLOWDOWN; OR A WALKOUT; OR A
WORK STOPPAGE in thisplant??
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If we can't guarantee delivery to a customer,
he will protect himself by spreading his busi-
ness to several chain companies. This could
result in a 30% to 35% drop in production and
in JOBS. If our orders go down, the number of
weeks you get to work go down.
We personally think that one of our com-
petitors is responsible for the union trying to
get into our plant. If the union can gain control
of this place then this competitor will get some
of our business. This hurts YOU. Clinton En-
gines at Maquoketa, Iowa had the same union
that is trying to get in at this plant-today
there are 800 people out of their jobs. Herman
Nelson at Morrison, Illinois , had the same
union that is trying to get in here-they too;
are out of business . These two examples prove
that this union cannot guarantee job security-
only good management working with good em-
ployees can provide job security.
We suggest that it's just good business to
make it possible for us to say "WE CAN
GUARANTEE DELIVERY." In other words,
if you vote "NO" in the election on Friday, we
can say to our customers and employees on
Monday.... SURE, we can make delivery and
SURE, we can give you regular steady employ-
ment.8
It is clear that by means of the foregoing,
Respondent created the impression of the inevita-
bility of a strike if the employees selected the
Union as their bargaining agent and warned of the
loss of jobs. This unremitting effort on the part of
the Respondent to impress upon the employees the
dangers inherent in their selection of the Union as
their bargaining agent, particularly the danger of
job loss, was not an attempt to influence the em-
ployees by reason, but was an appeal to fear. Ac-
cordingly, I find and conclude that Respondent's
entire preelection, antiunion campaign , when con-
sidered as a whole, was intended to interfere with,
restrain, and coerce its employees in the exercise of
their rights guaranteed by Section 7, and was there-
fore violative of Section 8(a)(1) of the Act.
Nebraska Bag Processing Company, 122 NLRB 654,
655; Harvard Coated Products Co., 156 NLRB 162;
Ideal Baking Company of Tennessee, Inc., 143
NLRB 546, 552; Climate Control Division, The
Singer Company, 160 NLRB 765.
C. The Constructive Discharge of Blaine Kostielney
Blaine Kostielney worked in the roller chain de-
partment under Foreman Van Dyke. At the start,
he was assigned to running small presses . After a
few days, Van Dyke made him his assistant, giving
him the duties of a setup man to make sure that
everybody had parts. In July, Kostielney's father
became sick in California, and Kostielney asked
Van Dyke for a leave of absence. Van Dyke refused
the request because he was going to go on his vaca-
tion shortly. Thereupon,-Kostielney quit his job.
About the middle of August, Kostielney returned
and applied to the Respondent for reemployment.
Personnel Manager Hogue asked Foreman Van
Dyke if he would like to have Kostielney back. Van
Dyke replied that he would, that Kostielney was a
good worker. Van Dyke thereup on assigned
Kostielney to operate the tumblers. At the time,
Foreman Van Dyke told Kostielney that he would
like to give him back his old job as assistant, but
that this would be unfair to employee Larry Wint-
jen who had been made assistant when Kostielney
quit. Kostielney worked with a minimum of supervi-
sion . When he had spare time, as when all tumblers
were running, he would dip chains, band boxes, or
help bench employees who were behind in their
work. Sometimes, he would ask Foreman Van Dyke
if there was anything special he wanted him to do.
As previously noted, Kostielney was an em-
ployee-organizer for the Union. He solicited
between 20 and 25 employees to sign union cards.
The Respondent's knowledge of Kostielney's union
membership is revealed not only by Foreman Van
Dyke's and General Foreman Whitten's threats set
forth above, but also by Foreman Van Dyke's
testimony to the effect that some 6 weeks before
Kostielney left, he had shown Van Dyke his union
card.
Prior to this incident, Foreman Van Dyke had
never criticized Kostielney's work. A few days later,
Van Dyke began giving Kostielney increasingly
more work assignments . On October 20, Foreman
Van Dyke gave Kostielney a work assignment, but
before Kostielney could finish it, Van Dyke told
him to start doing another job. When Kostielney
did so, Van Dyke returned and wanted to know
why the first job wasn't finished. Van Dyke then
told him to return to the first assignment . Later,
8 Also as previously noted , in the survey questionnaire which Respon-
dent sent out on the same day to its employees , the Respondent in item 16
set forth the following , inter alia, as suggested reasons for not having a
union in the plant
We would probably have a lot of strikes if we had a union
s s s
I might lose my job if the union came into this plant because of the un-
reasonable demands that the union would make of the Company to
back up their promises as they have done at other plants that are now
closed
Company is having a tough time trying to stay in business and a union
could be the "straw that broke the camel's back "
Three tumblers, a large one and two small ones, are operated in the
roller chain department Manufactured parts are put in the tumblers for the
purpose of removing burrs The usual duties of a tumbler operator include
going to the front of the plant, getting the parts that are to be tumbled, and
carrying them back to the tumblers The parts are dumped on the floor and
then shoveled into the tumblers If the parts are heavy, it takes an operator
between 10 and 15 minutes to load the large tumbler After a tumbler has
been loaded , the doors are closed and the tumbler and a blower are turned
on The tumbler rotates, tumbling the parts inside a sufficient length of
time to remove the burrs The length of time that a tumbler operates de-
pends on the type of parts placed in the tumbler , as well as the quantity of
parts, varying between 15 minutes and 45 minutes , or even longer After
the operator deems the parts have been tumbled for a sufficient length of
time, he follows a reverse sequence , unloading the parts and moving them
to the place where they are to be used
DRIVES, INCORPORATED
Van Dyke came back and inquired why the second
job hadn't been completed, and directed him to do
another job. As Kostielney put it, "he just had me
running all over and doing everything."
Matters finally reached the breaking point on Oc-
tober 24. After punching in, Kostielney got the fork-
lift truck, brought a load of parts back to the tum-
bler area, and dumped them on the floor in front of
one of the small tumblers. As he was loading the
parts into one of the small tumblers, Foreman Van
Dyke came over and told him to dip some chains.
Kostielney proceeded to dip the chains, but before
he finished, Foreman Van Dyke directed him to
band some boxes. Before that operation was
finished, Foreman Van Dyke told Kostielney to
move some boxes that were lying in the aisles. As
Kostielney began to move the boxes, Van Dyke
came to him and wanted to know why the boxes
were not banded. When Kostielney told him that he
had directed him to move the boxes, Van Dyke
became upset and wanted to know why the tum-
blers were not loaded. Kostielney replied that Van
Dyke had told him to do the boxes. Van Dyke then
said, "That's the first thing you're supposed to do
when you come in in the afternoon is to get them
tumblers loaded. That's your very first job."
Kostielney then went to the tumblers and
proceeded to load the parts into a small tumbler.
As he was doing so, Foreman Van Dyke came and,
referring to a pile of parts that the day crew had
dumped in front of the large tumbler, asked
Kostielney why he had dumped the parts there.
Kostielney replied that the day crew had left them
there. Van Dyke then directed Kostielney to load
the parts left by the day crew. When Kostielney
replied that he had already had some parts in the
small tumbler, Van Dyke ordered him to load them
anyway. At this point, Kostielney demonstrated his
disgust, whereupon Foreman Van Dyke said, "Well
look, Jim,10 if you're going to mess around, you can
go home." Kostielney did not reply but proceeded
to take out the parts that he had already loaded in
the small tumbler and shoveled in the parts which
had been left by the day crew. After starting up the
tumbler, Kostielney went to Foreman Van Dyke
and told him, "Gib, I can't take any more of this,"
and handed Van Dyke his glasses and grease rag.
Van Dyke replied, "All right." Kostielney there-
upon left the department. As he was on his way out
of the plant, Kostielney ran into Personnel Manager
Hogue who had Kostielney's timecard in his hand
and a piece of paper which he handed to Kostiel-
ney. Kostielney said, "You ain't going to have to
worry no more Morey; I quit." Hogue replied,
"Well, Jim, you can't say it was me. I've always
been fair to you." Kostielney then punched out
and left the plant.
Foreman Van Dyke's version is as follows: ".. .
when it was time to start working, I told him to run
983
the tumblers. That's what he did. He had to do the
fork lift work first, and there was a box sitting out
in the aisle; and while he was on the fork truck, I
asked him to move it. He said he didn't want to. I
told him to go ahead and move it anyhow. He
finally did, but he really didn't want to." About 45
minutes later, Kostielney came to Foreman Van
Dyke, handed him his glasses and his grease rag,
told him that "he was tired of this-place," and
quit. Foreman Van Dyke further testified that he
said nothing in response and was not surprised
when Kostielney quit.
I do not credit Foreman Van Dyke's version
which is completely inconsistent with his own ap-
praisal of Kostielney's work habits. Thus, Van Dyke
admitted that Kostielney was a good worker,
worked with a minimum of instructions, would
make boxes on his own if he had free time, and
would of his own volition take the forklift truck
whenever he saw that something had to be done.
And significantly, Van Dyke admitted that he was
not surprised when Kostielney quit-a state of mind
which is consistent with a course of conduct of
making things difficult for an employee to induce
quitting. Moreover, Kostielney's testimony as to in-
creasing work assignments after the inception of
the Union's campaign is corroborated by the
testimony of Larry Wintjen, who is no longer em-
ployed by the Respondent and who had been
assistant to Foreman Van Dyke. Wintjen testified
that Kostielney was a good worker and that after
the union campaign began, Van Dyke gave Kostiel-
ney more job assignments and "before he could get
one job done, he'd have him do another." This con-
dition continued until Wintjen quit on the Friday
before Kostielney's termination.
It is well settled that "[a]n employee who is
forced to leave his employment as the only alterna-
tive to accepting discriminatory action relating to
his conditions of employment is constructively
discharged in violation of the Act" (American Auto-
Felt Corporation, 158 NLRB 1628, 1631). Ac-
cordingly, I find and conclude that the Respondent
discharged Blaine Kostielney in violation of Section
8(a)(3) and (1) of the Act.
D. Respondent's Refusal to Rehire Patricia Tadlock
Patricia Tadlock was hired by the Respondent on
June 13, and worked in the roller chain department
under Foreman Van Dyke. As previously noted,
Tadlock attended the union organizational meeting
with Union Representative Pope on or about Au-
gust 17, signed a union card at that meeting, and
became an organizer. She then began soliciting fel-
low employees to join the Union. A few days later,
Foreman Van Dyke assigned her to work on the
staker, a machine that processes chains. Tadlock
was the first woman ever assigned to run the staker,
10 Blaine Kostielney was also known as Jim
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and she told Foreman Van Dyke that the staker was
a hard job for a woman to do. On another occasion,
she told Van Dyke that she thought that the staker
was a man's job. Esther Greathouse, a fellow em-
ployee in the roller chain department, testified that
Tadlock was a good worker and complained about
the staker only when she got tired.11
Tadlock continued to be active in the Union's
campaign. As previously noted, early in September
she was warned by Foreman Van Dyke not to pass
out union cards on company time . Also, during Oc-
tober, Tadlock passed out union literature outside
of the Respondent's plant, and while so engaged
was observed by Personnel Manager Hogue who
was watching from his office window. Hogue also
observed her wearing a union button in the plant
during October.
Tadlock quit the employment of the Respondent
in October and went to work for General Electric.
On February 10, 1967, Tadlock was laid off by
General Electric. She thereupon telephoned Hogue
and asked him if Respondent was hiring. Hogue
replied in the negative. She then asked whether the
Respondent would be hiring, and Hogue replied,
"Probably," and added that as soon as they had a
job that they felt that she could do, they would call
her.
At the time, Respondent was suffering from a
large turnover of help, and since January 1, 1967,
up to the date of the hearing, Respondent had been
actively seeking male and female help by means of
newspaper and radio advertisements and employ-
ment offices.
Thereafter, Tadlock telephoned Hogue about
twice a week inquiring as to the availability of em-
ployment, and received the same answer. On
March 14, 1967, she came to Respondent's office,
filled out an application for employment, and gave
it to Hogue . Hogue told her that "he didn't know
why I wanted to come back. I wasn 't satisfied there
when I was there before." Tadlock replied, "Who
are you to judge." She was not rehired.
Personnel Manager Hogue corroborated
Tadlock's testimony regarding the telephone calls
and the interview. He further testified that,
although there are no complaints in Tadlock's per-
sonnel file, he did recall an incident in August or
September, when Foreman Van Dyke assigned her
certain work and that "she made the statement that
she didn't want to do that-job." Hogue further
testified that, during the interview, Tadlock told
him that Foremen Van Dyke and Poel had told her
that they would like to have her back. He there-
" Although the second amended complaint does not allege that
Tadlock's assignment to the staker was discriminatory , the General Coun-
sel in his brief suggests that the assignment was made in retaliation for
Tadlock's union affiliation and activity However, although the record in-
dicates that eventually the Respondent had knowledge of Tadlock's union
affiliation and activity, it does not appear from the record that at the time
Tadlock was assigned as a staker , the Respondent was aware of her union
affiliation Moreover , shortly after being assigned to the staker, Respon-
dent gave Tadlock a pay raise of 15 cents an hour This would tend to
upon talked to the two foremen. Foreman Poel told
him that Tadlock had not worked for him and that
he knew nothing about her work, and denied that
he told her that he wanted her back. Foreman Van
Dyke told Hogue that he did not care to have
Tadlock back; that there were certain jobs that she
did not like to do and made that fact known by
voice and by the quantity and quality of her work.1
In determining whether Respondent's refusal to
rehire Tadlock was due to her union activity and af-
filiation, or to her previously indicated dissatisfac-
tion, I find significant the fact that Hogue did check
with the two foremen who, Tadlock claimed, had
indicated a desire to have her back. This action of
Hogue's is hardly that of an employer who refuses
to rehire an employee because of union affiliation.
Rather , it is consistent with the conclusion that
Respondent did not want Tadlock because she had
been a dissatisfied employee, but nevertheless was
willing to consider rehiring her if the foremen
wanted her back. I therefore find and conclude that
the Respondent's refusal to rehire Patricia Tadlock
was not based on her union affiliation or activity,
but on her previously demonstrated dissatisfaction
with her job, and was not discriminatory. Ac-
cordingly, the complaint should be dismissed in this
regard.
E. The Denial of a Wage Increase to Leon Wynkoop
Leon Wynkoop was employed by the Respondent
on February 9, 1961, as a maintenance man in the
maintenance department and has worked in that
capacity since . It had long been Respondent's pol-
icy to review the performance of the employees in
the maintenance and tool departments every 6
months and, if recommended by the foreman, to
grant such employees a wage increase. During all
the time that Wynkoop had been employed by the
Respondent, he had received semiannual raises
which averaged about 10 cents per hour. In August,
Wynkoop returned to work after an illness of about
9 weeks. He approached his foreman, Richard Dru-
ry, and reminded him that his semiannual pay raise
was due on August 9. Drury replied that he would
investigate . Approximately 3 weeks later , Wynkoop
again asked Foreman Drury about his pay raise and
was told that his pay raise would be delayed 9
weeks to make up for the time that he had been
away while he was ill. In October, at the expiration
of the 9-week period, Wynkoop again asked Drury
about his raise and was told that he would have to
negate the General Counsel's suggestion that her assignment to the staker
was retaliatory
1' Foreman Poel was not called to corroborate Hogue's testimony in this
regard Although Foreman Van Dyke was called as a witness , he was not in-
terrogated regarding the foregoing conversation between himself and
Hogue, nor was he interrogated about Tadlock's work Nevertheless, I
credit Hogue's testimony in this regard Hogue testified in a frank and
straightforward manner
DRIVES, INCORPORATED 985
wait until after the Respondent found out what the
Union was going to do.
Wynkoop was not the only employee who was
denied a pay raise during this period. Claude Wild-
man, superintendent of tooling and maintenance,
admitted that he had been instructed to grant no
wage increases during the Union's campaign and
that employees were informed to that effect.
After the election on November 7, Wynkoop
again approached Foreman Drury about his raise.
Drury replied, "They are not ready upstairs." Wyn-
koop then indicated that he wanted to talk to Vice
President Al Den Besten , and he and Drury
proceeded to Den Besten 's office. Wynkoop asked
Den Besten , "Al, I want to hear from you why I am
not getting my raise." Den Besten replied, "Your
quality and quantity of work is terrible." Wynkoop
then asked why he had not been informed, pointing
out that he thought it was the duty of management
or the foreman to tell a man when he wasn't doing
what was right. He received no answer, and put the
same question to Foreman Drury and Superinten-
dent Wildman, who had joined the group, and
received no answer from either of them. He then
asked, "What do I have to do?" Den Besten
replied, "Why don't you go get another job." Wyn-
koop eventually received a pay raise in February
1967.
At the hearing, Superintendent Wildman testified
that it had been reported to him by the foremen
that Wynkoop was "somewhat bullish in taking in-
structions" and spent time wandering around talk-
ing to other employees.13
It is well settled that the withholding of normal
wage increases which would have been granted but
for the presence of the union, and advising em-
ployees that their wage increases which were other-
wise due pursuant to respondent's policy are being
withheld for this reason, violate Section 8(a)(1) of
the Act, because such action necessarily tends to
create employee dissatisfaction with the union and
misrepresents to the employee the employer's duty
under the law and the union's role in causing the
loss or deferment of the wage increase. Dan
Howard Mfg. Co., 158 NLRB 805; International
Ladies Garment Workers' Union, AFL-CIO, 142
NLRB 82, 113, reconsideration denied 143 NLRB
1168, enforcement granted on this point sub nom.
Federation of Union Representatives v. N.L.R.B.,
339 F.2d 126, 128 (C.A. 2). Accordingly, I find
and conclude that the denial of a wage increase to
Wynkoop in October constituted a violation of Sec-
tion 8(a)(1) of the Act.
The denial of a wage increase to Wynkoop in
November, after the election, constituted a viola-
tion of Section 8(a)(3) of the Act. Wynkoop was a
longtime employee of the Respondent and was a
good worker as evidenced by the fact that since
1961 he had regularly received semiannual wage in-
creases. His personnel file disclosed only one repri-
mand issued some 4 or 5 years before, resulting
from a trivial incident.'4
As noted above, Wynkoop openly supported the
Union's campaign.'5 This fact was known to
General Foreman Shaver who had interrogated
Wynkoop concerning his attitude toward the Union
and had indicated to Wynkoop that unionization of
the plant would be detrimental. It was also known
to Foreman Drury who, at a time when Wynkoop
was expecting a semiannual wage increase, had told
Wynkoop that he should watch himself or his news
would not be so good.
Considering Wynkoop's long record of satisfacto-
ry service, it seems strange that if he had been guil-
ty of a "bullish" attitude and of excess talking that
he would not have been warned about these mat-
ters by at least one of the foremen involved. It is
likewise strange that none of the foremen placed a
notation to that effect in his personnel file. Yet
when he asked for his pay raise in November, he
was suddenly confronted with these charges and the
pay raise was denied. Under all the circumstances, I
find and conclude that the reasons advanced by the
Respondent for refusing to give him a wage in-
crease in November were pretextual and that Wyn-
koop was denied a raise in retaliation for being in
favor of the Union. Accordingly, I find and con-
clude that the denial of a wage increase to Wyn-
koop in November was discriminatory, in violation
of Section 8(a)(3) and (1) of the Act.
F. The Advisory Board
In 1961 or 1962, Respondent formed an Adviso-
ry Board to take care of communications between
the Company and its employees. The Advisory
Board" consisted of representatives of each depart-
ment elected by the employees in such depart-
ments, and members of management. Occasionally,
as occurred in the case of employee Wynkoop,
when the term of an employee representative ex-
pired, the foreman of the department would ask
him to continue serving for another term. The Ad-
visory Board meets on company time, and em-
ployee members of the Advisory Board are not
docked for the time spent at such meetings. In addi-
tion, they are paid $50 a year by the Respondent
for serving on the Board. Meetings of the Advisory
Board are held at the call of management. Respon-
dent makes and preserves minutes or memoranda
" Neither of these foremen was called to testify
" At that time , Wynkoop had built a bench When he returned to work
the next day he found that the bench had been pulled out of shape to the
point where it could not be straightened He made another bench and put a
note on it telling the people on the next shift in obscene language to keep
their hands off the bench As a result , a written reprimand was placed in
Wynkoop 's personnel file and he was instructed not to leave such notes
again He apologized
IS Wynkoop was an employee-organizer He kept a supply of union cards
in his toolbox, and when employees asked him for a card , he would send
them to his toolbox where they could get one
ie The Advisory Boarb is sometimes referred to in the record as Advisory
Committee , Advisory Board and Safety Committee, and Grievance Com-
mittee
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these meetings, sends a copy to each member of
the Advisory Board, and posts a copy on the com-
pany bulletin board. Matters discussed by the Ad-
visory Board consist of adequacy of drinking facili-
ties, smoke in the plant, restroom and lighting
facilities, eating facilities, a place to hang shears,
hazards, and other working conditions. The matters
brought up before the Advisory Board are then
taken under advisement by management which may
or may not act on them.
The General Counsel contends that the Advisory
Board is a labor organization within the meaning of
Section 2(5) of the Act, in that it is assisted and
dominated by the Respondent and should therefore
be disestablished. That the Advisory Board is a
labor organization within the meaning of Section
2(5) of the Act is not opened to doubt. It is well
settled that the mere presentation to management
by an employee committee of employee views,
without specific recommendations as to what action
is needed to accommodate those views, constitutes
dealing with management under Section 2(5). See,
e.g., Thompson Ramo Wooldridge, Inc., 132 NLRB
993, 994-995, enfd. as modified 305 F.2d 807
(C.A. 7); Ferguson-Lander Box Co., 151 NLRB
1615, 1620. It is also clear that the Respondent has
given assistance to the Advisory Board by holding
meetings of the Advisory Board on company time
and not docking the employee representatives for
time spent at such meetings, and by paying them
$50 a year for serving on the Board. See, e.g.,
Robert W. Johnson, et al. d/b/a Johnson Metal
Products Co., 161 NLRB 844; Walker Process
Equipment, Inc., 163 NLRB 615.
These elements and others present in this case,
particularly the fact that tenure of office of com-
mittee members is terminable by discharge or
transfer to another department, both matters within
Respondent's control, and the further fact that a
foreman could, and on occasion did, extend the
term of an employee member, have been held to
constitute domination. See, e.g., Ferguson-Lander
Box Co., supra; Koehler's Wholesale Restaurant
Supply, 139 NLRB 945, 953, enfd. as modified 328
F.2d 777 (C.A. 7); Pacemaker Corporation, 120
NLRB 987, 989-990, enfd. 260 F.2d 880 (C.A. 7).
However, it is unnecessary in the instant case to
determine whether Respondent's activities vis-a-vis
the Advisory Board constituted domination as well
as assistance. "The difference between 'domina-
tion' and mere `support' is one of degree"
(Koehler's Wholesale Restaurant Supply, supra at
953), and the result is that where the employer is
guilty of illegal assistance to, or interference with,
an employee committee, the remedy is to order the
employer to discontinue such practices, whereas
where the employer dominates the employees'
labor organization, it is ordered to disestablish such
labor organization. Higgins Industries, Inc., 150
NLRB 106, 119. In the instant case, this distinction
need not be made because, as found infra. the
Union represented a majority of the employees in
the appropriate unit at the time when the Respon-
dent refused to recognize and bargain with it and
the Respondent did not have a good-faith doubt as
to such majority, and I have therefore recom-
mended that the Respondent be ordered to bargain
with the Union as the exclusive bargaining
representative for such employees. It therefore fol-
lows that the Respondent must disestablish any
other organization purporting to represent its em-
ployees.
I therefore find and conclude that Respondent il-
legally assisted the Advisory Board in violation of
Section 8(a)(2) and (1) of the Act.
G. Respondent's Refusal To Recognize and Bargain
With the Union
1. The appropriate unit
Respondent's answer admits and I find that the
following is an appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees em-
ployed by the Respondent at its Fulton , Illinois,
plant; but excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
2. The Union's majority
On September 23, when the Respondent received
the Union's demand for recognition and bargaining,
there were 155 employees in the appropriate unit. 17
By that date, 84 employees in the appropriate unit
had signed cards which clearly and unequivocally
designated the Union as its collective-bargaining
representative.18
Of the 84 cards which constitute the Union's
majority, 79 were introduced into evidence without
'r A list of employees approved by Respondent shows that Respondent
had 174 employees on that date From this list should be deducted 18 em-
ployees who were either supervisors or office employees , as agreed to by
Treasurer Kummerer There should also be stricken from the list the name
of Gary Glazier who, as admitted by Respondent 's answer, was a supervisor
within the meaning of the Act
B The card read as follows
YES, I WANT THE LAM
I, the undersigned , an employee of fCOmpany)_ _
hereby authorize the International Association of Machinists and
Aerospace Workers ( IAN) to act as my collective bargaining agent
with the company for wages , hours and working conditions. It is
my understanding that I will be invited to join the LAM.
NAME (print ) DATE
ADDRESS (print ) _ CITY_____
DEPT
Classification
SHIFT_ PHONE
SIGN HERE X
NOTE: This authorization to be SIGNED and DATED in EMPLOYEE'S
OWN HANDWRITING . YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY
FFDERAL LAW.
DRIVES, INCORPORATED 987
objection as to authenticity. All are dated Sep-
tember 22 or earlier . In addition , date stamps on
the reverse side of these cards indicate that they
had been received on September 23 by the Union's
regional office to which they had been sent by Dis-
trict No. 102 on September 22. See Winn-Dixie
Stores, Inc., 153 NLRB 273, footnote 1. Additional
cards signed by employees Allan Root, Sandi Rose,
Barbara Barsema ( Hager ), Clayton R. Hubbard,
and David Greathouse should also be counted as
part of the Union's majority. These cards are dated
September 22 or earlier, and the signers (except
Hubbard) testified credibly that they signed them
on the dates they bear and gave them immediately
to a union organizer . Accordingly, they should be
counted towards the Union's majority. Hubbard
testified credibly that he took the card home on
September 21, signed it that evening but dated it
September 22, and on the morning of September
22 mailed it in a preaddressed envelope to the
Union. Since it was mailed prior to the critical date,
it may be counted. Indiana Rayon Corporation, 151
NLRB 130, 136.
Respondent attempted to attack only one card,
that of John Matuszewich, who was called by the
Respondent and testified that the person who sol-
icited his signature had kept after him for about a
week and told him that his signature was needed to
get an election. The card was not invalidated by the
representation, since Matuszewich was not told that
the only purpose of the card was to get an election.
Hamburg Shirt Corporation, 156 NLRB 511, 535,
enfd. sub nom. Amalgamated Clothing Workers of
America v. N.L.R.B., 371 F.2d 740 (C.A.D.C.);
N.L.R.B. v. Cumberland Shoe Corp., 351 F.2d 917,
919 (C.A. 6), enfg. 144 NLRB 1268, as amended by
an unreported Order. On the critical date, there-
fore, the Union represented a clear majority of the
employees in the appropriate unit , and I so find.
3. Respondent's alleged good-faith doubt as to the
Union's majority
The only alleged doubt claimed by the Respon-
dent as to the Union's majority was set forth in its
letter of September 26, in which it rejected the
Union 's request for recognition and bargaining. In
that letter, the Respondent based its doubt upon an
election result 4 years earlier , when it had approxi-
mately 56 production and maintenance employees
as contrasted to 155 in September 1966. Aside
from the staleness of the occurrence relied upon by
the Respondent , Respondent 's subsequent conduct
as hereinabove detailed consisting of numerous
threats, interrogation , giving employees the impres-
sion of surveillance , implied promises of improved
working conditions , announcement of an incentive
wage system , a campaign of fear of strikes and loss
of jobs, the constructive discharge of Kostielney,
and the refusal to grant periodic wage increases
pending the election, indicates that the Respondent
did not have a good-faith doubt as to the Union's
majority, but refused to recognize and bargain with
the Union in order to utilize the time intervening
between the Union's request for recognition and
the election to dissipate the Union's majority by un-
fair labor practices which were patently calculated
to accomplish that purpose. Joy Silk Mills, Inc. v.
N.L.R.B., 185 F.2d 732, 741-742 (C.A.D.C.);
Hamburg Shirt Corporation, supra, 538-539, Furr's,
Inc. v. N.L.R.B., 381 F.2d 562 (C.A. 10), and cases
cited therein; Madison Brass Works, Inc., et al. v.
N.L.R.B., 381 F.2d 854 (C.A. 7), enfg. 161 NLRB
1206.
Accordingly, I find and conclude that the
Respondent did not entertain a good-faith doubt as
to the Union's majority when it refused to recog-
nize the Union, and by its refusal to recognize the
Union violated Section 8 (a)(5) and (1) of the Act.
V. REPORT ON OBJECTIONS TO THE ELECTION
As indicated above, the Regional Director for
Region 13 has referred to me objections filed by
the Union to conduct of the employer which af-
fected the results of the election for "a report con-
taining resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Re-
gional Director as to the disposition of said issues."
The objections referred to are as follows:
FIRST, the Employer held a captive au-
dience meeting on November 2, 1966, during
which it stressed the idea that if the Petitioner
became the bargaining representative, the Em-
ployer would be forced to go out of business.
SECOND, the Employer distributed printed
material to its employees which was designed
to intimidate, coerce and threaten its em-
ployees by stating that the Petitioner forced
two other area Employers out of business and
would do the same to it. These letters also
were designed to cause the employees to fear a
loss of jobs and wages and cause them to be-
lieve that only strikes would result from a
union victory on election day.
THIRD, the Employer posted printed anti-
union material immediately next to the official
Election Notices, along with a letter designed
to appear as if the National Labor Relations
Board sanctioned such articles and their con-
tents. The Employer acted unlawful in posting
such material next to the National Labor Rela-
tions Board Official Notice and by the contents
of the material and its accompanying letter.
FOURTH, the Employer unlawfully changed
the employees' wage system and granted wage
increases prior to the election for the purpose
of influencing their vote.
FIFTH, the Employer unlawfully permitted
its Quality Control Manager to attend all union
organizing meetings.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SIXTH, the Employer made a material
misrepresentation of fact in its printed material
to its employees when it accused the Petitioner
of forcing the closing of specific companies in
the area. It made this same misrepresentation
in its captive audience meeting held on com-
pany time November 2, 1966.
The first, third, fifth, and sixth objections are not
supported by evidence and should therefore be
overruled. The second objection should be
sustained in accordance with my findings under the
heading "Respondent's predictions of strikes, loss
of jobs, and effect upon its competitive position, in
the event the Union is certified." The fourth objec-
tion should be sustained to the extent that it
charges that the Employer unlawfully changed the
employees' wage system, in that as found under the
heading "Respondent's institution of a wage incen-
tive system," the Respondent did institute a wage
incentive system for the pressroom on October 17,
and utilized its action as an argument to the em-
ployees to vote against the Union, promising to ex-
tend the wage incentive plan to the rest of its plant.
Based upon my findings in the unfair labor case, I
find and conclude that during the critical preelec-
tion period, Respondent engaged in a course of
conduct which interfered with the employees' exer-
cise of a free and untrammeled choice in the elec-
tion. The election should therefore be set aside.
However, it would be inappropriate in this case
merely to set aside the election and provide for a
new one. Since some of the objections to conduct
affecting the election are meritorious and the
Union represented a majority of the employees in
the appropriate unit when Respondent received the
Union's demand for bargaining, I shall recommend
that the Respondent be ordered to bargain with the
Union. Irving Air Chute Company, Inc., 149 NLRB
627, 629-630, enfd. 350 F.2d 176 (C.A. 2); Bernel
Foam Products Co., Inc., 146 NLRB 1277.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
election, that the Union represented a majority of
employees in the appropriate unit, and that the
election should be set aside, I recommend that the
Respondent be ordered to bargain with the Union.
Since I have found that the Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(1), (2), (3), and (5) of the Act, I
shall recommend that it cease and desist
therefrom19 and that it take certain other affirma-
tive action designed to effectuate the policies of the
Act.
Having found that the Respondent constructively
discharged Blaine Kostielney because of his mem-
bership in and/or activity on behalf of the Union, I
shall recommend that, if it has not already done so,
the Respondent be required to offer him immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights, dismissing if necessary any
employees hired after his discharge. Respondent
should also be required to make him whole for any
loss of earnings he may have suffered because of
the discrimination against him , with backpay com-
puted in the customary manner.20 I shall further
recommend that the Board order the Respondent
to preserve and, upon request, make available to
the Board or its agents payroll and other records to
facilitate the computation of the backpay due and
the right of employment.
Having found that the Respondent because of the
Union's organizational campaign failed and refused
to give semiannual pay raises to employees entitled
thereto, I shall recommend that the Respondent be
required to make such employees whole for any
such loss of earnings, with interest thereon at the
rate of 6 percent per annum.
As the unfair labor practices committed by the
Respondent are of a character striking at the root
of employee rights safeguarded by the Act, I shall
recommend that it cease and desist from infringing
in any manner upon the rights guaranteed in Sec-
tion 7 of the Act.
The activities of Drives, Incorporated, set forth in
section IV, above, occurring in connection with the
operations of the Respondent set forth in section I,
above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
VII. THE REMEDY
Having found that there is merit to some of the
objections to conduct affecting the result of the
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in
the case , I recommend that the Respondent , its of-
ficers , agents , successors , and assigns , shall:
1. Cease and desist from:
( a) Discouraging membership in District No.
102, International Association of Machinists and
Aerospace Workers , AFL-CIO, or in any other
labor organization of its employees , by discharging
or in any other manner discriminating against em-
'° In the ensuing Recommended Order, I have not, as is customary , set mended Order sets aside the election and requires the Respondent to bar-
forth specific cease -and-desist provisions keyed to each type of violation gain with the Union, it would be anachronistic to order the Respondent to
found above Thus, I have omuted cease-and -desist provisions relating to cease and desist from engaging in such practices
threats to withhold the Christmas bonus, etc , "if a majority of the em- 20 F W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating
ployces selected the Union to represent them " Inasmuch as the Recom- Co, 138 NLRB 716
DRIVES, INCORPORATED 989
ployees in regard to hire and tenure of employment
or any term or condition of employment.
(b) Promising improvement of working condi-
tions and/or wages in violation of Section 8(a)(1)
of the Act.
(c) Withholding semiannual wage increases in
violation of Section 8(a)(1) and (3) of the Act.
(d) Interrogating employees concerning their
membership in, or activities on behalf of, District
No. 102, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
labor organization of its employees, in a manner
constituting interference, restraint, and coercion
within the meaning of Section 8(a)(1) of the Act.
(e) Giving its employees the impression of en-
gaging in surveillance of the union activities of its
employees.
(f) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist any labor organization, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in other concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all
such activities.
(g) Refusing , upon request, to bargain collec-
tively with District No. 102, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of all em-
ployees in the following appropriate unit:
All production and maintenance employees em-
ployed by the Respondent at its Fulton , Illinois,
plant ; but excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Blaine Kostielney immediate and
full reinstatement to his former or substantially
equivalent position (if Respondent has not already
done so), without prejudice to his seniority or other
rights and privileges, dismissing if necessary any
employees hired subsequent to his discharge, and
make him whole for any loss he may have suffered
as a result of the Respondent's discrimination
against him in a manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all records necessary for the determination
of the amount of backpay due.
(c) Notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(d) Make whole those employees who are enti-
tled to, but failed to receive, a semiannual pay raise
during the Union's organizational campaign, with
interest thereon at the rate of 6 percent per annum.
(e) Upon request, bargain collectively with Dis-
trict No. 102, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, as the ex-
clusive representative of the employees in the ap-
propriate unit with respect to rates of pay, wages,
hours of employment, and other conditions of em-
ployment and, if an understanding is reached, em-
body such understanding in a signed agreement.
(f) Disestablish the Advisory Board.
(g) Post at its Fulton, Illinois, plant copies of the
attached notice marked "Appendix. "21 Copies of
said notice, on forms provided by the Officer-In-
Charge of Subregion 38, after being duly signed by
an authorized representative of the Respondent,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees 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.
(h) Notify the Officer-In-Charge, in writing,
within 20 days from the date of the receipt of this
Decision , what steps Respondent has taken to
comply herewith.22
I FURTHER RECOMMEND that the election held
November 4, 1966, in Case 38-RC-289, be set
aside.
I FURTHER RECOMMEND that Case 38-RC-289 be
severed and transferred to the Regional Director
for Region 13 for further processing.
" In the event that this Recommended Order is adopted by the Board , and Order "
the words "a Decision and Order" shall be substituted for the words "the 22 In the event that this Recommended Order is adopted by the Board,
Recommended Order of a Trial Examiner" in the notice In the further this provision shall be modified to read "Notify the Officer - In-Charge of
event that the Board 's Order is enforced by a decree of a United States Subregion 38, in writing, within 10 days from the date of this Order, what
Court of Appeals , the words " a Decree of the United States Court of Ap - steps Respondent has taken to comply herewith
peals Enforcing an Order " shall be substituted for the words "a Decision