George Groh and Sons

National Labor Relations Board - Board Decisions

Mar 28, 1963

141 N.L.R.B. 931 (N.L.R.B. 1963)

GEORGE GROIN AND SONS 931
George Groh and Sons and Sheet Metal Workers' International
Association, Local 77, AFL-CIO. Case No. 17-CA-f000. March
28, 1963
DECISION AND ORDER
On December 5, 1962, Trial Examiner James T. Barker issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. He also
found that the Respondent had not engaged in certain other unfair
labor practices as alleged, and recommended that the complaint be
dismissed as to them. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on June 19, 1962, by Sheet Metal Workers' International
Association, Local 77, AFL-CIO, hereinafter called the Union,' the Regional Director
of the National Labor Relations Board for the Seventeenth Region , on August 13,
1962, issued a complaint against George Groh and Sons 2 hereinafter referred to as
Respondent, alleging violations of Section 8(a)(1) and Section 8(a)(5) of the
National Labor Relations Act, herein called the Act. In its duly filed answer Re-
spondent denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held before Trial Examiner James T. Barker at
Emporia, Kansas, on September 18 and 19, 1962. All parties were represented at
the hearing and were afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument , and to file briefs . Respondent presented oral
argument and thereafter briefs were filed by the Respondent and the General Counsel.
Upon consideration of the entire record and briefs of the parties , and upon my
observation of the witnesses, I make the following:
1 The designation of the Charging Union was amended at the hearing.
2 The parties stipulated this to be the correct name of Respondent.
141 NLRB No. 83.
708-0 0 6-64-vol. 141-60
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein, a partnership maintaining
its principal office and place of business in the city of Emporia, Kansas, where it is
engaged in the sale and installation of sheet metal, roofing, air-conditioning and heat-
ing systems, and related products. During the calendar year 1961 Respondent in the
course and conduct of its business operations purchased and received goods and
materials directly from suppliers located outside the State of Kansas valued in excess
of $50,000. Similarly, during the first 6 months of 1962 Respondent purchased and
received goods and materials directly from suppliers located outside the State of
Kansas valued in excess of $37,000.
I accordingly find upon these stipulated facts that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.3
If. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association , Local 77, AFL-CIO, the Union
herein, is found to be a labor organization within the meaning of Section 2(5) of the
Act.4
III. THE UNFAIR LABOR PRACTICES
A. Position of the parties
The General Counsel contends, in substance, that at a meeting of its employees
held at its shop on June 7, 1962, Respondent through George Groh, a partner,
threatened its employees with economic reprisals consisting of less work and layoffs
if the employees continued their union membership, adherence or activities, and
thereafter, made threats of reprisal to employee Humberto Filipe, which conduct
violated Section 8 (a)( I) of the Act.
The General Counsel further contends that since on or about June 5, 1962,
the Respondent has refused to meet and bargain collectively with the Union as
exclusive representative of Respondent's employees in an appropriate unit.
Respondent denies that it engaged in conduct violative of Section 8(a)(1) of the
Act; and further denies that its conduct violated Section 8(a)(5) of the Act on the
grounds that (a) the Union's telegraphic bargaining request was defective in that it
was ambiguous and described the unit in which it requested bargaining in terms
broader than the unit alleged in the complaint to be appropriate; (b) at the time of its
bargaining request the Union did not represent a majority of the employees in the
alleged appropriate unit; and (c) that the Respondent's refusal to bargain with the
Union as the representative of its employees was based on a good-faith doubt of
the Union's majority status and not for the purpose, as alleged, to gain time to under-
mine the Union's alleged majority status.
B. Organizational activities and the demand for recognition
The Union through its former Business Agent Wesley Bailey had on occasions
during the past 5 years sought recognition from Respondent,5 but the relevant events
leading up to the June 1, 1962, recognition and bargaining request commenced
9 days earlier on May 23, when Bailey and Union Attorney Kimbrough met with two
employees of Respondent concerning union representation for Respondent's em-
ployees.6 Thereafter on May 29 Bailey and Kimbrough met with four employees of
Respondent and on that occasion four authorization cards were executed.? On
May 31, employee Wallace Jack Rose met with employer LeClair and after a brief
discussion of the Union, LeClair executed an authorization card .8 On the same day
employee Larson signed an authorization card after discussing the Union with em-
ployee Ott.9 The following evening, June 1, Bailey and Kimbrough met with em-
3 Man Products, Inc., 128 NLRB 546.
4 The credited testimony of Kimbrough, Pierce, and Bailey establishes that Local 77
admits employees to membership and exists for the purpose of dealing with employers
concerning wages, hours, and conditions of employment. Mound City Yellow Cab Com-
pany, 132 NLRB 484.
s The credited testimony of Kimbrough, Bailey, and George Groh.
8 The credited testimony of Kimbrough. Bailey's testimony that the first organizational
meeting with employees occurred on May 16 is not credited.
T The credited testimony of Kimbrough, Bailey, Rose, Iiagemann, Walliser, and Ott.
8 The credited testimony of Rose and LeClair.
9 The credited testimony of Larson and Ott.
GEORGE GROH AND SONS 933
ployees Ott and Rose and went to the home of employee Filipe who signed an
authorization card. The signed authorization cards of employees LeClair and Larson
were given to Bailey and Kimbrough on June 1.10 As a result of discussions Kim-
brough and Bailey had had with Respondent's employees it was determined that the
bargaining unit was comprised of 11 employees.ll Having acquired 7 authorization
cards, signed and dated, Bailey and Kimbrough returned from Emporia to Topeka
where Bailey dictated and caused to be sent a telegram to George Groh 12 which was
duly delivered on the morning of June 2. The telegram read as follows: 13
The Undersigned Local Union has been authorized by a majority of your em-
ployees to represent them concerning wages, hours and working conditions.
We therefore request recognition by your firm and a meeting at your earliest
possible convenience to negotiate wages, hours and working conditions of your
employees. Please contact the undersigned Local Union as to your preference
for an early negotiation session.
SHEET METAL LOCAL UNION #77
WESLEY BAILEY
930 Orleans PH CE 32522
The telegram was followed on June 4 by a telephone call from Bailey to Groh
in which Bailey requested a meeting with Groh for the purpose of discussing "wages,
hours and working conditions for the employees." A meeting was arranged for
10 a.m. on June 5 at Respondent's Emporia office.14
C. The Union's bargaining efforts
1. The June 5 meeting
Pursuant to the arrangements a 2-hour meeting took place on June 5 at Respond-
ent's place of business. The meeting occurred in an area of Respondent's office ad-
jacent to a customers service counter, and the discussions that followed were
punctuated by frequent interruptions to permit Groh and Roy Kuhlman, a partner and
Respondent 's sales engineer , who joined the meeting at an early stage , to serve
customers. Thus, only a portion of the 2-hour period was devoted to actual
discussions.
At the outset Bailey introduced Attorney Kimbrough to Groh as the attorney for
the Union. Kimbrough thereupon stated that "he hated to be legal about this situa-
tion, but that Mr. Bailey called [him] in to see that it [the conference] was handled
in a legal manner." Kimbrough proceeded by informing Groh that the Union repre-
sented a majority of his employees and "wished recognition." 15 Groh asked to see
the authorization cards but Kimbrough declined.18 Kimbrough stated in response,
however, that if Groh doubted the Union's majority status he would submit the
authorization cards to a disinterested third person, specifically suggesting the presi-
dent of a college in the community. Groh declined, stating that that would not be
"necessary to bring a third party into the matter." 17
During the conversation that followed the participants discussed prevailing local
wage scales . Kimbrough indicated a disposition on the part of the Union in its wage
approach to be "competitive" in the housing scale, but on the other hand indicated
10 The credited testimony of Bailey, Kimbrough , and F ilipe.
11 The credited testimony of Kimbrough.
11 The credited testimony of Bailey and Kimbrough.
13 General Counsel's Exhibit No. 16.
14 The credited testimony of Bailey. Groh's testimony that Bailey did not Inform him of
the purpose of the proposed meeting is rejected.
15 The foregoing is predicated upon the credited testimony of Kimbrough and Bailey.
13 Groh's testimony in this respect is credited and that of Kimbrough and Bailey deny-
ing that Groh asked to see the authorization cards is rejected. Groh Impressed me with
the accuracy of his recollection In this respect.
17 The credited testimony of Kimbrough and Bailey. However, Kimbrough's additional
testimony that Groh also stated "he was satisfied we represented these people" 1s not sup-
ported by the testimony of Bailey, and has no other record support. Kimbrough's hesi-
tancy as he testified concerning his alleged statement casts doubt upon the accuracy of
his recollection in this regard. I reject this testimony . Moreover , Groh's request to see
the authorization cards Indicates no initial disposition on his part to accept at face value
Kimbrough's assertion of majority status. However, as Groh's own testimony reveals he
chose not to pursue in depth on June 5 the question of the Union's majority status and
I am convinced on the basis of credited testimony of Kimbrough and Bailey that Groh
refused to resort to an independent card check.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the impossibility of significant variance from prevailing commercial scales. During.
the discussion Bailey handed Groh a "list" containing a wage scale for roofers which.
Groh returned to him saying "I will have to give this back to you, Mr. Bailey.
A wage scale was suggested to Groh who asserted that his firm was not "big enough
for a union" and stated that the Union would have to "organize all the competitors."
Kimbrough asserted that he could not legally follow this course and that at this time:
he was discussing "only the employees of George Groh." As the conversations pro-
ceeded Groh stated that Kimbrough and Bailey were "wasting [their] time, that he
wasn't interested in the Union." Kimbrough informed Groh that "the law made it-
mandatory upon him, once his employees chose to bargain collectively through a
representative of their own choosing, that he negotiate with that representative and
that the representative negotiate with him, even though no final resuls may be
arrived at." 18
As Groh revealed some lack of awareness of his legal bargaining rights and ob-
ligations, Kimbrough suggested that he should get "an attorney of his choice to-
represent him." 19
As the conversation neared its end Groh stated he could not discuss the contract.
matters further because one of his partners [Roger Ott] was out of town. However,,
Groh stated he would notify Bailey upon the partner's return and a meeting could be-
arranged "when all the partners could be present."
As the meeting concluded, Groh mentioned Wallace Jack Rose, an employee with.
some 17 or 18 years' tenure, whose termination he was considering on the ground
that his work had deteriorated. Groh further observed that "he thought he [Rose]
was the fault of all this fuss we are having." Kimbrough advised Groh to follow a
restrained course because punitive action against an employee during the organiza-
tional period would force Kimbrough to seek "redress in the courts." 20 As the parties.
departed, Groh reiterated that he would call Bailey when Roger Ott returned from
vacation.21
2. Chance meeting with David Groh
At the conclusion of the meeting Kimbrough and Bailey left Emporia and had-
a chance meeting with David Groh, a partner in Respondent and the son of George-
Groh. In the discussion that followed, Kimbrough told David Groh that he and
Bailey had been "talking with his father" and informed Groh that there would be
further negotiations upon the return of "the other partner [Roger Ott]." Groh!
requested that negotiations be conducted in the evening when all partners would be
available, and indicated that he did not know how long Ott would be away. Kim-
brough requested David Groh to intercede with his father to prevent alleged punitive-
action against employee Rose.22
3. Bargaining efforts after June 5
The Union's next contract with George Groh was telephonic and through Kim-
brough. Kimbrough had expected the return of Roger Ott to Emporia to occur on-
June 11. When he did not hear from Groh, Kimbrough on June 12 telephoned him'
to arrange for a bargaining meeting. Kimbrough credibly testified as follows con-
cerning the conversation:
On the phone he informed me that he didn't think he wanted any part to do
with the Union again. I then informed him whether he had a part to do with
the Union or not was not his decision to make, it was his employees, and once
they had made up their minds that was it. He said they could go to Topeka
18 The foregoing is predicated upon the credited testimony of Kimbrough as supported'
by credited testimony of Bailey. To the extent the testimony of Groh is at variance with
credited testimony of Kimbrough and Bailey, I reject it.
30 The credited testimony of Kimbrough. I reject Groh's contrary testimony relating to
the extent of the June 5 discussion of Groh's need for legal advice. I further reject the
inferences of Groh's testimony to the effect that the June 5 meeting was just another in a
series of discussions between Groh and Bailey covering a 5-year period and relating to,
recognition. I am convinced Groh understood the special nature of the June 5 meeting
for, contrary to previous ones, it had been formalized by a specific demand for recogni-
tion, a claim of majority and the presence of union counsel.
20 The credited testimony of Kimbrough. I reject Groh's contrary testimony that the-
matter of the possible employee discharge was not discussed.
21 The credited testimony of Bailey and Kimbrough.
22 The credited testimony of Kimbrough.
GEORGE GROH AND SONS 935
and then come back to them.23 I said that wasn't the idea. I said I would talk
to an attorney of his choice and I still would, because he had a duty to bargain
at this stage of the game and Mr. Groh decided that morning he'd like to have
me talk to an attorney . . . in Emporia. He said he would call him right
away. [Footnote indication added.]
Kimbrough telephoned the attorney to whom Groh had referred him but learned
he was out of town and would not return for several days. Kimbrough again con-
tacted Groh who referred him to another attorney, but Kimbrough was unable to
reach him until some 6 days later. When on June 18, 1962, contact was made with
the attorney, he indicated Groh had not sought his advice or services concerning the
matter. Kimbrough then sought to reach Groh by telephone but was unable to do
.so. Groh returned Kimbrough's call however, informing him that he had retained
'Topeka counsel.24 That day the Union received a letter from counsel stating in
pertinent part:
Mr. George Groh, of the George Groh Roofing & Sheet Metal Company, Em-
poria, has referred your telegram, dated June 2nd, in which you claimed to
represent a majority of his employees for collective bargaining purposes, has
been referred to me for answering.
We must inform you that we have a good faith doubt that you in fact represent
a majority of these employees in an appropriate unit and, therefore, deny your
request for recognition at this time.
As you know, the National Labor Relations Board has procedures established
for the conducting of elections to allow employees to vote by secret ballot in
these matters and we, therefore, suggest that you use this machinery in regard
to your demand for recognition.
'There was no further contact between the Union and Respondent following receipt
of counsel 's June 16, 1962 , letter.
D. Alleged interference, restraint, and coercion
June 7 employee meeting
On June 7 shortly after 8 a.m. as the employees were in the shop preparing to
commence work they were informed by Partner Roy Kuhlman that George Groh
desired to speak to them. The employees present gathered in the shop and George
Groh spoke to them. He said, in effect, that the Union had contacted him and claimed
to represent a majority of the employees. He said that the Union had asserted that
the employees desired to have union representation and that he did not know who had
signed cards and did not desire to know. Groh further stated that he had no objection
to the employees joining the Union, that they could "take off," go to Topeka and
join the local union there, and could still come back and continue to work at the same
wages and "everything would be the same." He further stated that he did not have
anything "against the Union in that respect." At this point employee Jim Castoe
intervened suggesting that if the employees were "unionized" that in the event of a
strike "at Topeka" Respondent's employees would also "have to go on strike in
Emporia." The meeting appears to have ended at this juncture.25
The Filipe-Groh Conversation
Approximately a week after the June 7 employee meeting as employee Filipe
was leaving his work for the day, he engaged in a conversation with George Groh.
Groh stated to Filipe that he was "concerned with the Union." Groh further stated
"[i]f the Union gets in my shop, it means we have less work, and maybe he wouldn't
be able to keep most of the guys." Filipe volunteered that he did not know "very
much about the Union" and that he "hoped he wouldn't cause any trouble." Groh
did not ask Filipe if he had signed a union card and did not inquire concerning other
employees' activity in this respect. Groh indicated to Filipe his concern that unioniza-
tion would have an adverse effect upon his competitive position because of the
higher wage rates he would be forced to pay. He further indicated that a non-
I This reference is to Groh's willingness to have his employees join the Topeka local.
This remark must be and has been considered in conjunction with Groh ' s similar remark
to his assembled employees on June 7, considered below.
The credited testimony of Kimbrough.
25 The credited testimony of employees Rose and Filipe.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
competitive position might have an adverse effect upon his ability to accord em-
ployees year-round employment 26
Conclusions
1. As to the alleged interference , restraint , and coercion
I find that neither by his statement to his assembled employees on June 7 nor his
comments to his employee Filipe approximately 1 week later did George Groh violate
Section 8(a) (1) of the Act. His comments on June 7 contain no threats expressed or
implied, but, rather , consisted merely of an accurate statement pertaining to the
Union 's request for recognition and claimed majority status , coupled with a dis-
claimer of interest in the identity of those who had signed authorization cards.
Further, Groh made clear to the employees that he had no objection to them
joining the Union and assured them that their union membership would not adversely
affect their continued employment. At most , Groh's remarks could be interpreted
as inferring that the current wage structure could not be improved by unionization.
But in its context this does not constitute a threat of reprisal constituting a viola-
tion of Section 8(a)(1).
Nor do I construe Groh 's comments to Filipe as being more than a prediction of the
consequences of unionization upon Respondent 's ability to maintain its competitive
position and to sustain its payroll in the face of diminishing work. I do not interpret
Groh's remarks to Filipe to constitute a threat of reprisal to force him into abandoning
the Union.
In view of the foregoing I shall recommend that the complaint be dismissed, with
respect to the alleged interference , restraint , and coercion of employees 27
2. The appropriate unit
The complaint alleges and I find that the following described unit was on June 1,
1962, and has been at all times pertinent. herein , an appropriate unit for collective
bargaining:
All production and maintenance employees of George Groh and Sons, exclu-
sive of office clerical employees and professional employees , guards, and super-
visors as defined in the Act.
3. The Union's bargaining request
I conclude and find that the telegram sent on June 1 by the Union and received
on June 2 by the Respondent constituted a proper request and was not defective,
as Respondent claims, by virtue of the Union's failure to precisely define the unit in
which it sought recognition and bargaining , or because of the insubstantial variance
between the unit language of the telegram and the unit described as appropriate in
the complaint and found herein to be appropriate . The Union's telegraphic request
communicated to the Respondent the employerwide nature of the unit of employees
for which it wished to bargain and the complaint merely defined the unit with
specificity , neither enlarging upon its scope nor narrowing it.28
4. The Union 's majority status
a. The employee complement
The parties agreed that on June 1, 1962, the Respondent employed 2 office clerical
employees, but they are in disagreement as to whether on June 1 Respondent's em-
ployee complement additionally consisted of 14 employees , as the Respondent con-
tends, or 11 as the General Counsel asserts.
General Counsel would exclude Richard Kuhlman , Kenneth Burenheide, and
Maynard Redeker as temporary or casual employees while the Respondent contends
that each on June 1 had the status of a permanent part-time employee and should
be included in the unit.
2e The credited testimony of F11ipe.
n See Bilton Insulation , Inc., 129 NLRB 1296; cf. Texas Industries, Inc., at at., 139
NLRB 22.
as See Kickert Brothers Ford , Inc., 129 NLRB 1316 , 1318 , 1321; Laabs , Inc., 128 NLRB
374, 375 , footnote 5; cf. The C. L. Bailey Grocery Company, 100 NLRB 576, 580.
GEORGE GROH AND SONS 937
Richard Kuhlman
Richard Kuhlman is a young man 21 years of age who finished his schooling in
May 1959 and who, since , has been for the most part alternately engaged occupa-
tionally as a farmer and as a sheet -metal worker . He is the brother of Roy Kuhlman
who, as noted above, is a partner in Respondent and Respondent 's sales engineer.
Richard Kuhlman 's farming activities have derived from the assistance he has
given his aging father in the operation of his 340 -acre farm during the height of the
farming seasons since 1959; and from his own operation since the fall of 1960 of a
125-acre rented farm which he will cease to operate after the 1962 crops are
harvested . Kuhlman defined the "busy" season on the farm as follows:
It starts about the middle of March and it will run up until the end of April,
that is when we are really busy. And then it will slack off for about two weeks
or three weeks then it starts up again until , well, until the middle of August. Then
it will slack up until the first of September until the end of September its busy
again, and the rest is pretty well free then . That depends a lot on the weather
and conditions of the year.
As delimited by his farming duties, Kuhlman 's other occupational undertakings
from May 1959 when he completed school until June 1 when the Union demanded
recognition have been as follows: 29
Fall 1959 to March 1960---------- Emporia, Kansas sheet metal firm.
September 1960 to March 1962 -- --- Emporia, Kansas livestock company (1
day per week-Fridays).
1960* November 17_____________ 8 hrs.
October 20 _____________ 4 hrs. 20_____________ 8 hrs.
22_____________ 8 hrs. 28___ _________ 8 hrs.
25------------- 8 hrs.
_
30------------- 8 hrs.
27_____________ 8 hrs. December 1______________ 8 hrs..
29------------- 8 hrs. 3-------------- 8 hrs..3 1------------- 8 hrs.
1962*November 1------------
2
8 hrs.
8 h April 30------------------ 8
hrs.------------ rs. May 1__________________ 8 hrs.
5------------ 8 hrs.
2------------------ 8'A hrs.8------------ 8 hrs.
3 8 hrs9------ --- - 8 hrs. ------------------
.
- -
5------------------ 4 hrs..10------------ 8 hrs. 8'h22 hrs
12 ------------ 8 hrs.
------------------
23------------------ 8V2
..
hrs.
*Denotes employment with Respondent.
Richard Kuhlman was initially given employment by Respondent in the fall of
1959 as a result of a request made by Richard to his brother Roy. Richard had
free time available and accordingly sought and was given employment by Respond-
ent. After December 3, 1960 , Richard was not again employed by Respondent
until April 30, 1962. He did not work at all for Respondent during 1961. However,
in March 1962, Richard inquired of his brother Roy if he needed "help at the shop"
and advised his brother that he "would have several days [he ] would be available
to help him ." Commencing on April 30 and thereafter , Richard Kuhlman has been
employed by Respondent at such times as his services have been required and he
has been available. The usual practice has been for Kuhlman to contact Respondent
and indicate his availability , but on occasions the initiative has been Respondent's.
Kuhlman had in the spring of 1962 terminated his employment with the livestock
firm and desired additional employment because of greater amounts of free time
available to him as a result of the acquisition of certain farm machinery . Prior to
his employment in April 1962, he had apprised his brother, Roy, of this. Richard
Kuhlman works in the employ of Respondent as a laborer . There are three other
laborers in Respondent's employ whose unit placement is not in dispute 30
Kenneth Burenheide
Kenneth Burenheide was at the time of the hearing an 18-year-old first semester
college student who in May 1962 had graduated from high school . Burenheide
2A The credited testimony of Richard Kuhlman and General Counsel 's Exhibits Nos.
3 and 4.
30 The foregoing is predicated upon the credited testimony of Richard Kuhlman.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was initially employed by Respondent on June 19, 1961, and, thereafter, through the
summer of 1961 until August 31, he was employed on a full-time basis. After
August 31, Burenheide returned to school and did not again work in the employ of
Respondent until Saturday, March 24, 1962, when he worked 4 hours. The follow-
ing Saturday, March 31, he worked 8 hours. He was not again employed by Re-
spondent until June 4, when the school year had ended and he returned to Re-
spondent's employ for the summer. Burenheide was employed by Respondent
from June 4 until August 17, when he ceased work to take a vacation. He com-
menced college on September 3 but worked for Respondent on September 15, the
Saturday preceding the hearing. Between August 17 and the day of the hearing
Burenheide worked for Respondent "several days . . . possibly a week."
His return to Respondent's employ in June 1962 had been preceded a few days
earlier by Burenheide's request of Roy Kuhlman for employment. Soon after being
employed, Burenheide informed Roy Kuhlman that "he would like to work during
school if [he] had spare time in which to work." 31
Maynard Redeker
Maynard Redeker at the time of the hearing was 17 years old and had a few days
earlier enrolled in Kansas State Teachers College at Emporia. He had graduated
from high school on May 25, 1962. During the summer of 1961 until September 8,
he had been employed by Respondent on a full-time basis. On April 2, 1962, he
worked 8 hours for Respondent taking inventory and on May 12, 1962, again was
employed by Respondent for 81/2 hours. In late May 1962, Roy Kuhlman contacted
Redeker regarding his summer-work intentions. On June 4 Redeker commenced
work and was employed on a full-time basis until August 17, when he ceased work
to prepare for school. He returned to work on August 24 and worked the entire
week. Redeker accepts summer employment to obtain money for college and does
not intend to remain in Respondent's employ after completing college. However,
during the summer he requested Saturday employment during the school months
and was told by Roy Kuhlman that he would be used when work was available 33
Partner Roy Kuhlman credibly testified that Respondent pursues a policy of hiring
students for summer work "with the idea of them continuing on into the fall"; and,
looks with favor upon their return each summer because they have experience in
Respondent's operations.
I find that on June 1, 1962, when the Union made its bargaining request, Richard
Kuhlman had the status of a regular part-time employee and was accordingly in-
cludible in the appropriate bargaining unit. Although he had not been employed
by Respondent during 1961, between April 30 and June 1, 1962, he had worked 7
days for a total of 531/2 hours and, in the circumstances prevailing on June 1, had
reasonable expectation of future employment on a regularly recurring basis, as his
availability and the Respondent's demand for his services coincided. In the spring
of 1962 and on June 1, unlike the previous 3 years, Richard Kuhlman had no employ-
ment to supplement his farming activities, and the acquisition of additional farming
equipment calculated to give him greater freedom from the demands of the farm
were circumstances known to his brother Roy, who enjoyed substantial freedom in
the recall of experienced, qualified personnel of the type Respondent prefers to tap
to meet its frequent need for additional help.33 Moreover, and in addition to
Richard Kuhlman's employment history and expectations, as a laborer in a small,
specialized unit, it is to be concluded that the tasks he performed were substantially
similar to those performed by the three other laborers in the unit whose unit place-
ment is not in dispute. Accordingly, Richard Kuhlman was on June 1, 1962, a
regular, part-time employee with a community of interest with the other employees
in the unit herein found to be appropriate and accordingly includible.34
81 The credited testimony of Burenheide and General Counsel's Exhibits Nos. 7-A
and 7-B.
31 The credited testimony of Maynard Redeker and General Counsel's Exhibits Nos.
8-A and 8-B.
33 After June 1 and during the summer of 1962 Richard Kuhlman was employed on
6 days in June for a total of 44 hours ; 1 day in July for 4 hours ; 10 days in August for
8 hours, and worked on September 5 and 6 for 8 hours each day. While these records
may not be used to establish Kuhlman's status as of June 1, subsequent occurrences in
the form of employment after June 1 is a factor to be weighed in assessing his employ-
ment expectancy as of that date.
34 Crown Drug Company, 108 NLRB 1126, 1128; The Great Atlantic & Pacific Tea
Company, 119 NLRB 603, 607; Tol-Pac, Inc., at at., 128 NLRB 1439; cf. Anderson's
.Super Service, Inc., 120 NLRB 583, 5184. Richard Kuhlman appears to enjoy no special
GEORGE GROH AND SONS 939
On the other hand, in accordance with established Board practice, I conclude
and find that on June 1 and all other times material, Kenneth Burenheide and
Maynard Redeker were temporary and casual employees and were not includible
in the unit found appropriate herein. As students who worked during the summer
months and who will if they desire be rehired during the ensuing summers, they fall
into the category of employees excluded by the Board under the rule of the Brown-
Forman case 35 Their respective 2 days of work during the school year in the
spring of 1962, were isolated and do not reflect an established pattern of recurring,
regular part-time employment during the nonsummer months as would justify their
inclusion in the unit 36
In view of the foregoing, the following 12 employees were on June 1 properly
included in the unit: Forest Arnold, J. D. Castoe, Humberto Filipe, Don Hagemann,
Richard Kuhlman, E. R. Larson, Charles LeClair, Johnny Lopez, Albert Ott, C. D.
Pine, Wallace Rose, and G. E. Walliser. Of these 12, it is found that the following
7 employees had signed authorization cards at the time the Union requested recogni-
tion and collective bargaining on June 1, 1962: Humberto Filipe, Don Hagemann,
E. R. Larson, Charles LeClair, Albert Ott, Wallace Rose, and G. E. Walliser.
Accordingly, I further find that on June 1 the Union represented a majority of
Respondent's employees in an appropriate unit.
Conclusions as to Respondent's Good-Faith Doubt
It is by now well established that an employer may in good faith insist on a Board
election as proof of the Union's majority but that it "unlawfully refuses to bargain if
its insistence on such an election is motivated, not by any bona fide doubt as to the
Union's majority, but rather by a rejection of the collective-bargaining principle or by
a desire to gain time within which to undermine the Union." The queston of whether
an employer is acting in good or bad faith at the time of the refusal is "one which
of necessity must be determined in the light of all relevant facts in the case, including
any unlawful conduct of the employer, the sequence of events, and the time lapse
between the refusal and the unlawful conduct." 37 It has thus been recognized that
there is no rule which will obviate the necessity of a "discriminating analysis and
appraisal of all the relevant evidence before making a good-or-bad faith
determination." 38
An analysis of the cases wherein the Board has made this "good-or-bad faith deter-
mination" suggests rather strongly the "pervading importance" of contemporaneous
unlawful conduct as a cardinal criteria 39 However, it does not perforce follow that a
finding of such unlawful conduct is the sine qua non to a rejection of a good-faith
defense. While accompanying unlawful conduct may render more discernible an un-
lawful motive, its absence is but a factor, and not a preclusive one, to be weighed
status by reason of his brother' s official position with Respondent which allies him to
management, and which would require his exclusion from the unit. See Maointryre Motor
Company, 119 NLRB 54; Southern Illinois Sand Co., Inc., 137 NLRB 1490.
15Brown-Forman Distillers Corporation, 118 NLRB 454.
8" Brown-Forman Distillers Corporation, supra; Belcher Towing Company, 122 NLRB
1019; Home Brewing Company, Incorporated, 124 NLRB 930; Mon-Clair Grain and Supply
Co., 131 NLRB 1096, 1099; Taunton Supply Corp., -et al ., 137 NLRB 221.
I reject Respondent's contention that as Respondent is primarily engaged in the con-
struction industry and as Redeker and Burenheide had been employed for at least 30 days
in the 12 months preceding June 1, 1962, they should be included in the unit under an
application of the rule in Daniel Construction. Company, Inc., 133 NLRB 264. The facts
as well as the special circumstances of the Daniels case, not here present, render it singu-
larly distinguishable from the instant one, and in my opinion, inapposite.
Nor do I consider the Board's recent decision in Madsen Wholesale Co., 139 NLRB 863,
applicable in determining the status of Burenhelde and Redeker. For even if it were
assumed that Respondent were engaged in a "seasonal operation with a widely fluctuating
employee complement," and if it were further found in the circumstances of this case that
a payroll period including the week of June 4 (the day on which both individuals re-
sumed summer employment) were a proper one, their exclusion would nonetheless appear
to be required under established Board practice relating to summer-employed students.
51 See Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D.C.) ; Arts &
Crafts Distributors, Inc., 132 NLRB 166, 169, and cases cited at footnote 8.
se A. L. Gilbert Company, '110 NLRB 267, 269-270.
10 See Orkin Exterminating Company of Kansas, Inc., 136 NLRB 630. (Intermediate
Report.)
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a "discriminating analysis and appraisal of all the relevant evidence ." The absence
of good faith , then , may be manifested as well by attitudes and conduct demonstrating
a rejection of the collective -bargaining concept as by more overt , readily discernible
Section 8 ( a) (1) and 8 ( a) (3) conduct potentially more immediately destructive of the
Union 's majority status. The evidence in the instant case establishes no unlawful
Section 8(a) (1) activity , but based on other record evidence I am convinced and find
that the Respondent 's refusal to recognize and bargain with the Union was motivated
not by a good -faith doubt of the Union 's majority status but by a rejection of the
collective -bargaining principle.
It is significant first to observe that Groh did not raise the majority status issue
at the June 5 meeting nor during the several subsequent telephone conversations with
Kimbrough . The issue was first raised after Groh had made statements and engaged
in conduct revealing adamant rejection of the Union , and suggests that Respondent
sought a Board election as a procedural device for delay. I am impressed in this
regard with the fact that although on June 5 Groh asked to see the authorization cards
he readily acquiesced in Kimbrough 's refusal to show them and did not avail himself
of the opportunity which Kimbrough proffered for an independent card check, al-
though this would have provided a reliable and expeditious resolution of any doubts
Groh may have had. His conduct at this critical time suggests Groh entertained no
abiding doubt on June 5 concerning the Union 's majority status.
On the contrary , I am convinced that Groh by his June 5 assertion that Kim-
brough and Bailey were "wasting [their ] time, that he wasn 't interested in the Union"
early manifested his attitude of essential opposition to the principle of collective
bargaining , which attitude remained constant throughout later dealings with the
Union and served as the foundation of his subsequent expressions and conduct.
Moreover, this same attitude of opposition was further revealed as the June 5
meeting drew to a close, when Groh expressed his resentment of the Union in labeling
long-term employee Rose as the fomenter of "all this [Union ] fuss." While promising
further meetings with the Union and with seeming justification requesting delay so
that all partners might participate in any future negotiations , Groh again 1 week
later, on June 12, revealed his resistance to recognition when he stressed to Kim-
brough that , in effect , he wanted nothing to do with the Union. The import of
Groh 's June 12 comments to Kimbrough (which were a reiteration of his June 7
remarks to his assembled employees ) was, simply , that while he had no objection
to his employees becoming union members, he , Groh, "didn 't want any part to do
with the Union again ." This position , twice asserted , can only be reasonably inter-
preted, in my opinion, as a candid , adamant, and continuing rejection of the Union's
request for recognition and of the collective -bargaining priciple . Groh's tactics in
referring Kimbrough to attorneys whose consultation and advice Groh himself had
not sought , and did not seek even after the lapse of some days, can be described
only as dilatory. It is against this background that Respondent 's June 16 response
first raising the issue of the Union 's majority status must be measured. Prior to
June 16 Groh had clearly communicated his adamant opposition to recognizing
the Union and there is nothing to show a changed attitude on his part or to suggest
any changed circumstance upon which Respondent might have belatedly predicated a
good-faith doubt . While the employee complement had increased by two over
its size on June 1 when the Union made its original bargaining demands, it was not
larger than it had been on June 5 or thereafter when Groh stated and restated his
opposition to the Union . While the benefit of legal advice may have arguendo
brought into focus for the first time to Groh the full significance of the majority
status question , there is no evidence to show that on June 16 or prior thereto Re-
spondent was aware of the number of authorization cards the Union possessed, or to
show that Respondent had information that cast doubt upon the validity of any of the
cards.4°
Upon a careful evaluation of the relevant evidence , I am convinced that the evi-
dence preponderates in favor of the General Counsel , and I accordingly conclude and
find that Respondent in seeking a Board election was motivated not by a good-faith
doubt of the Union's majority status but by a rejection of the principle of collective
40I am convinced that Groh possessed a degree of sophistication in labor relation matters
which exceeded that attributed to him by Respondent . Thus , his June 5 request to see the
authorization cards , his June 7 disclaimer of interest in knowing which employees had
signed cards and his record testimony concerning alleged past efforts of the Union to
organize by starting "from the -top" In an alleged effort to force Groh to bring his em-
ployees into the Union , reveal that Groh possessed some insight into the statutory organi-
zational rights and bargaining requirements.
GEORGE GROH AND SONS 941
bargaining. By its refusal on June 5 and thereafter to recognize and bargain with the
Union Respondent violated Section 8(a)(5) and (1) of the Act.41
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section IV, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (5) and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. Sheet Metal Workers' International Association , Local 77, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees of George Groh and Sons, exclud-
ing office clerical employees and professional employees , guards, and supervisors
as defined in the Act constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
4. Sheet Metal Workers ' International Association , Local 77, AFL-CIO, has been
at all times since June 1, 1962, and now is the exclusive representative of all em-
ployees in the aforesaid appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. By failing and refusing at all times since June 5, 1962 , to bargain with Sheet
Metal Workers' International Association , Local 77, AFL-CIO, as the exclusive
bargaining representative of employees in the aforesaid appropriate unit , the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (5) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
7. Respondent has not engaged in any alleged unfair labor practices not specifically
found herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that George Groh and Sons, Emporia, Kansas, its officers, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Sheet Metal Workers' International Asso-
ciation, Local 77, AFL-CIO, as the exclusive bargaining representative of all pro-
duction and maintenance employees of George Groh and Sons excluding office
clerical employees and professional employees, guards, and supervisors as defined in
the Act.
(b) In any like or related manner; interfering with, restraining, or coercing their
employees in the exercise of their right to self-organization, to form or to join or
to assist the aforesaid labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, bargain collectively in good faith with Sheet Metal Workers'
International Association, Local 77, AFL-CIO, as the exclusive representative of
all production and maintenance employees in the aforesaid appropriate unit, and,
if an understanding is reached, embody such understanding in a signed agreement.
41 Jog,' Silk Mills, supra; see Laabs, Inc., 128 NLRB 374; cf. Orkin Exterminating Com-
pany of Kansas, Inc., 136 NLRB 630; Norlee Togs, Inc., 129 NLRB 14; KTRH Broad-
casting Company, 113 NLRB 125.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Emporia, Kansas, shop, copies of the attached notice marked "Ap-
pendix." 42 Copies of said notice, to be furnished by the Regional Director for the
Seventeenth Region shall, after being duly signed by a representative of the Respond-
ent, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted. Reasonable
steps will be taken to insure that such notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps the Re-
spondent has taken to comply herewith.43
It is recommended that unless on or before 20 days from the date of the receipt
of this Intermediate Report, the Respondent notifies said Regional Director in writ-
ing that it will comply with the foregoing recommendations, the National Labor Re-
lations Board issue an order requiring the Respondent to take the action aforesaid.
12 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree
of the United States Court of Appeals, Enforcing an Order" for the words "A Decision
and Order."
431f these Recommendations are adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Seventeenth Region, in writing within
10 days from the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively in good faith with Sheet Metal
Workers' International Association, Local 77, AFL-CIO, as the exclusive rep-
resentative of all employees in the bargaining unit described below with respect
to rates of pay, hours of employment, and other conditions of employment, and,
if an understanding is reached, we will embody such understanding in a signed
contract. The bargaining unit is:
All production and maintenance employees of George Groh and Sons,
excluding all office clerical employees and professional employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist Sheet Metal Workers' International Association,
Local 77, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
All our employees are free to join or assist any labor organization, and to engage
in any self-organization or other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from such activities.
GEORGE GROH AND SONS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No. Balti-
more 1-7000, Extension 731, if they have any question concerning this notice or com-
pliance with its provisions.