Grafton Boat Co., Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1968

173 N.L.R.B. 999 (N.L.R.B. 1968)

GRAFTON BOAT CO. 999
Grafton Boat Co., Inc and International Brotherhood
of Boilermakers , Iron Shipbuilders , Blacksmiths,
Forgers , and Helpers of America , AFL--CIO and
its Local 483 , Petitioner . Cases 14-CA-4226 and
14-RC-5677
November 27, 1968
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND J ENKINS
On May 22, 1968, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging 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
Trial Examiner's Decision. He also found that Re-
spondent had not engaged in other unfair labor
practices alleged in the complaint and recommended
that such allegations be dismissed. Finally, the Trial
Examiner found that the objections to the election
conducted in Case 14-RC-5677 were meritorious
and recommended that the election be set aside. Both
Respondent and General Counsel filed exceptions to
the Trial Examiner's Decision; Respondent also filed a
brief in support of its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner 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 finds merit in
some of Respondent's exceptions. Accordingly, the
Board adopts the Trial Examiner's findings, conclu-
sions, and recommendations, as modified herein.
1. The Trial Examiner found that Respondent
violated Section 8(a)(1) of the Act on several occa-
sions. Although we agree with most of these findings,
we do not adopt the findings that supervisors Driver
and Schneider in conversations with employees Yates
and Norris unlawfully promised them benefits. The
complaint alleged that these two conversations consti-
tuted unlawful interrogation, not unlawful promises
of benefits.' Since no motion was made to amend the
pleadings, Respondent had no way of knowing that
allegedly unlawful promises of benefits were involved
in these conversations. Moreover, while both super-
visors did testify, they were not asked about such
alleged promises. It does not appear, therefore, that
unlawful promises of benefits to these employees
were either alleged in the complaint or fully litigated.
For this reason, we conclude that the Trial Examiner
erred in finding that Respondent unlawfully promised
benefits to Yates and Norris.
2. The Trial Examiner also concluded that the
unfair labor practices committed by Respondent
negated Respondent's claim that it declined to bar-
gain with the Union because it had a good-faith
doubt about the Union's majority status. We disagree.
Because of the nature of the unfair labor practices
found, their timing and limited number, we are not
persuaded that they are sufficiently substantial to
demonstrate Respondent's bad faith and vitiate its
claim that its refusal to bargain was lawfully moti-
vated.' Accordingly, we conclude that General
Counsel has not sustained his burden of proving that
Respondent's refusal to bargain was violative of
Section 8(a)(5). However, since unfair labor practices
were committed after the election petition was filed,
we shall order that the election be set aside and a
second election held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that Respondent, Grafton Boat Co., Inc.,
Grafton, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified.
1. Delete paragraph 1(a) from the Trial Examiner's
Recommended Order and reletter the subsequent
paragraphs accordingly.
2. Delete paragraph 2(a) from the Trial Examiner's
Recommended Order and reletter the subsequent
paragraphs accordingly.
3. Delete the first indented paragraph (including
the appropriate unit) of the Notice To All Employees.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges that
Respondent violated the Act by unlawfully promising
benefits to employees Yates and Norris, and by
unlawfully refusing to bargain with the Union.
I Although the second amended complaint did allege that Schneider
unlawfully promised benefits to an employee , it is clear that the
employee to whom benefits allegedly were promised was not Norris
When Norris began to testify about his conversation with Schneider,
Respondent objected on the ground that Norris was testifying about
events not alleged as unfair labor practices Respondent 's objection was
overruled after General Counsel stated that Norris' testimony dealt with
events mentioned in paragraph 5(H) of the amended complaint. Since
that paragraph refers only to unlawful interrogation , Respondent was
justified in assuming that the promises of benefits were made to an
employee other than Norris.
2 Hammond & Irving , Incorporated , 154 NLRB 1071
173 NLRB No. 150
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the election con-
ducted on June 21, 1967, be, and it hereby is, set
aside.
[Direction of Second Election3 omitted from
publication.]
MEMBER BROWN , dissenting
For the reasons set forth by the Trial Examiner, I
would find that Respondent violated Section 8(a)(5)
of the Act. Accordingly, I would order that Respond-
ent bargain with the Union on request.
3 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 14 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director. The Regional Di-
rector shall make the list available to all parties to the election. No ex-
tension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances . Failure to comply with this re-
quirement shall be ground for setting aside the election whenever prop-
er objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
TRIAL EXAMINER'S DECISION
GEORGE TURITZ, Trial Examiner- On November 21, 1967,
the General Counsel of the National Labor Relations Board,
herein called the Board, through the Regional Director for
Region 14 issued a second amended complaint against Grafton
Boat Co., Inc., herein called the Respondent and, at times, the
Company, which was served by registered mail upon Respond-
ent and upon the Labor Management Committee, herein called
the Committee.'
On June 21, 1967, an election was held among Respond-
ent's employees pursuant to the Regional Director's Decision
and Direction of Election in Case 14-RC-5677 issued on May
24, 1967,2 as amended by order of the Board dated June 19,
1967.3 The results were indeterminate because of the chal-
lenges to the seven Yellow Hats and to one Stevens. The Union
filed objections to the election, specifying 10 items. On August
30, 1967, the Regional Director issued a Supplemental
Decision and Order4 in which he overruled the challenge to
Stevens, sustained the challenges as to the seven Yellow Hats,
overruled six of the Union's objections, but directed that a
hearing be held on the Union's remaining objections, namely
objections 1, 5, 9, and 10, and also on certain alleged
interrogation and issuance of anonymous election propaganda
by the Company. Upon request for review by the Company
dated September 7, 1967,5 the Board on November 14, 1967,
issued an order6 finding that the issues raised by the challenges
could best be resolved by hearing and remanding Case
14-RC-5677 to the Regional Director with authority to
consolidate the issues as to challenges with Case 14-CA-4226
for hearing and disposition by the Trial Examiner. On
1 General Counsel's Exhibit I-SS The original charge was served on
February 13, 1967 upon Respondent , the first amended charge was
served on August 29, 1967, upon Respondent and upon the Committee
The Committee refused to accept either document served upon it See
General Counsel's Exhibits I-RR and I-SS. Three of the four
Committee members -Robert Driver , Gary Gress, and Deon Hill-
testified about the Committee at the hearing
2 General Counsel 's Exhibit 2-A.
3 General Counsel 's Exhibit 2-C Having found that the contested
issue of the unit placement of the seven working foremen, referred to in
the record as Yellow Hats, could be best resolved through the challenge
procedure , the Board amended the Decision and Direction of Election
to permit them to vote subject to challenge.
4 General Counsel 's Exhibit I-X.
November 21, 1967, in Cases 14-CA-4226 and
14-RC-5677 the Regional Director issued an order consoli-
dating cases and notice of hearing,7 directing a consolidated
hearing before a Trial Examiner with respect to the challenges
to the seven Yellow Hats and to Stevens, with respect to
objections 1, 5, 9, and 10, and other conduct affecting the
election, and with respect to the second amended complaint
simultaneously issued and referred to above.8
The hearing was held at St. Louis, Missouri, before the Trial
Examiner above named on January 2, 3, 4, and 5, 1968. The
General Counsel, Respondent, and the Union were represented
by their respective counsel. The parties stipulated that the
entire record in Case 14-RC-5677 be deemed to be before
the Trial Examiner for all purposes in connection with both
cases. The General Counsel and Respondent have submitted
briefs to the Trial Examiner.
Upon the entire record9 and from his observation of the
witnesses, the Trial Examiner makes the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, Grafton Boat Co., Inc., is an Illinois corpora-
tion having its principal office and place of business in the city
of Grafton, State of Illinois, where it is engaged in the
production and sale of boats, barges, and other types of
water-borne craft constructed of steel or aluminum. In the
course of its operations at the Grafton plant Respondent
annually sells and ships from said place of business products
valued at in excess of $50,000 directly to customers located at
points outside the State of Illinois, and annually purchases
goods and materials valued at in excess of $50,000 which are
shipped to it directly to said place of business from points
outside the State of Illinois. It is found that Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act, as
amended, herein called the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers of America, AFL-
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
The Labor Management Committee, also referred to in
testimony as the Recommendation Committee, had four
members, three rank-and-file employees and one supervisor.
Attached to the Committee minute book was a documentlo
the first paragraph of which read as follows.
The management of Grafton Boat Co , Inc., would like to
establish a Company-Labor Recommendation Board. This
5 General Counsel 's Exhibit 2-G.
6 General Counsel's Exhibit 2-H.
7 General Counsel 's Exhibit 1-LL. The Regional Director had
previously issued another order consolidating cases, General Counsel's
Exhibit 1-V, and an amended complaint, General Counsel's Exhibit
1-W
8 General Counsel 's Exhibit 1-MM
9 It is ordered that the transcript of the hearing before the Trial
Examiner be corrected as follows
Page 301 , line 4, change Naumann to Ewen.
Page 337, line 12 , change the to no.
Page 551, line 8, change signed to given.
10 General Counsel's Exhibit 11.
GRAFTON BOAT CO.
Board would review and revise company rules as necessary,
tender written recommendations to management advising
them how they could improve working conditions and
advising them of any unjust practices. Also this Board
would be called upon by management to advise individuals
and the production force as a whole where more coopera-
tion is required....
On February 7, 1967, Edward Fry, Respondent's vice presi-
dent and general manager, informed a group of employees that
the Committee existed for the purpose of enabling employees
to bring to Respondent problems which they would bring to a
labor union. The Committee met weekly and discussed and
voted on complaints and suggestions submitted by the employ-
ees, principally, although not exclusively, by way of a
suggestion box placed at the timeclock. Each member of the
Committee, including the supervisor, had a single vote. In some
instances the supervisor-member of the Committee gave
Respondent's answer immediately, in other instances he gave it
after consulting higher authority. The following were among
the suggestions and complaints made at the meetings during
the period from August 13, 1966, to May 2, 1967, which were
remedied or which the supervisor-member promised would be
remedied or submitted to higher management water foun-
tains, smoking privileges, leak in roof of men's room, smell
near men's dressing room, sick pay for regular employees,
vacation timing, potato-chip shortages, bonus money, benches
for dressing room, Labor Day as a holiday, heat for dressing
room, heat for shop, stocking tools employees were required
to furnish, deductions from paycheck without written authori-
zation of employee, and additional parking facilities i i The
requests relating to vacations and additional holidays were
answered directly by Thompson, Respondent's vice president
in charge of manufacturing, who came to a Committee meeting
and denied the requests. Among the subjects brought up at the
meetings as to which the record does not disclose any reply
were. a cup dispenser, triple time for holidays, and allegedly
unfair wage scales Suggestions were also made and acted upon
or otherwise answered which related to plant safety and
efficiency.
The employee-benefit suggestions and complaints men-
tioned above all concerned mandatory subjects of collective
bargaining and were within the usual area of collective
bargaining) 2 and the employees dealt with Respondent about
them through the Committee. As the Committee is an
organization or employee representation plan in which em-
ployees participate, exists to some extent for the purpose of
dealing with Respondent concerning grievances, rates of pay,
and conditions of work, and the normal subjects of collective
bargaining, it is found that it is a labor organization within the
meaning of Section 2(5) of the Act. See Raybestos-Manhattan,
Inc, 80 NLRB 1208, 1209.
11 In some instances the making or granting of these requests was
disclosed by the minute book , in others by oral testimony at the
hearing.
III. THE UNFAIR LABOR PRACTICES AND CONDUCT
AFFECTING THE RESULTS OF THE ELECTION
A. The February 7 Meeting
1001
Thompson, Respondent's vice president and production
manager, testified that on February 6, 1967, Robertson, an
employee, informed him that a union meeting was to be held
that evening at the house of Charles Buis. Thompson replied
that he had already heard about it and he asked whether
Robertson had been invited. The meeting was in fact held and
was attended by three union officials and by Buis, Cope, and
Yates, three employees of Respondent. The three employees
signed union designation cards at the meeting. Thompson also
testified that the next morning he was approached by William
Marsh, who worked in alternate months for Respondent and a
second mate on a tug boat. He testified that Marsh said that
the three employees who had attended the meeting had
requested him to speak to Respondent about some of their
problems, but that they had not told him what the problems
were. Thompson stated that Marsh at no time identifed the
three employees. He also testified that as he obtained
information about the meeting he discussed it with Fry.
During the morning of February 7 Yates, Cope, and Buis
were summoned to a meeting in Respondent's conference
room. Four other employees, Respondent's three Manu-
facturing Department supervisors, Thompson, Fry, and two
other members of management were also at the meeting. Fry
said that there seemed to be problems in the plant and that he
wanted to hear about them from the employees. He asked
whether the three men who had been at the union meeting
were present and then asked which was Charles Buis. When
Buis identifed himself, Fry asked what the problem was that
caused him to want a union. Buis complained that there were
several pay scales for the same work but no definite procedure
for advancing. Fry said, "Why take your troubles to some
gangster with his big car and booze and wild women instead of
to us through the labor management committee which we have
for this purpose?" Cope said that employees were afraid of
making complaints lest they be fired. Fry testified. "I then
told Cope that I couldn't understand why on earth they would
be afraid of being fired, because we don't have any contract or
anything to keep us from firing anybody in the plant, and that
we weren't trying to run people out We are running ads and
trying to hire people." Yates testified that Fry said, "We could
fire the three men that were at the union meeting and it would
be over with, but we are hiring now and not firing " Yates was
corroborated by Cope. Yates impressed the Trial Examiner as a
credible witness and his version of the basic elements of the
meeting has been credited over that of Fry where there were
differences. It is also found that the meeting was not called in
12 The extent to which some other matters dealt with by the
Committee may have concerned mandatory subjects of bargaining has
not been passed upon in this Decision
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response to any request by Marsh or the three employees who
had been to the union meeting at Buis' house13 but was called
on Respondent's initiative
During the meeting various suggestions were made by
employees for improving their working conditions. For the
most part the answer given was, "this all takes time." When
Buis complained that he had riot been given a test for a Navy
certification as a welder, it developed that he had been given
one but had failed and was not yet due for a retest under
Respondent's usual procedure. Shortly after the meeting Buis'
retesting was accelerated. In addition a "special run" was made
and everybody possible was tested, whether he was due for a
test or not. Certification resulted in a pay increase . Thompson
also took care of several minor complaints that had been
brought up at the meeting.
Conclusions as to the February 7 meeting- By disclosing to
the employees Respondent's swiftly obtained knowledge that
the union meeting had been held the previous evening, that it
had been held at Buis' house , that three employees were there,
and that they were Buis, Cope, and Yates, Respondent created
the impression that it was keeping close and accurate watch
over the employees' union activities. It is found that Respond-
ent thereby coerced and threatened the employees in violation
of Section 8(a)(1). See Ainsworth Manufacturing Company,
131 NLRB 273, 274, Polyurethane Products Company, Inc.,
168 NLRB No. 20; The Sardis Luggage Company, 170 NLRB
No. 187. The coercive impact of this disclosure was augmented
by Respondent's immediate summoning of the employees
involved to explain their conduct. Respondent further coerced
and threatened the employees in violation of Section 8(a)(1)
by saying that it could, although it would not, fire the three
employees who had gone to the meeting; by saying that the
various problems which were raised, "took time," thereby
promising to remedy the problems, and by in fact accelerating
tests for Buis and other employees after the meeting so that
they could advance to higher classifications more quickly than
normally. See American Freightways Co., Inc., 124 NLRB
146. Respondent had no legitimate need to question em-
ployees as to why they had resorted to the Union. On the
contrary, Respondent's implied promises at the meeting and
the accelerated tests instituted after the meeting disclose an
illegitimate purpose of the interrogation, namely, to place
itself in a position where it could more effectively use its
economic power and its control over the employees' livelihood
to induce them not to adhere to the Union. It is therefore
found that Fry's interrogation was coercive and violative of
Section 8(a)(1). See Struksnes Construction Co , Inc, 165
NLRB No. 102; Blue Flash Express, Inc., 109 NLRB 591. The
interrogation was made more coercive by Fry's disparaging
statement about the Union, by his statement that Respondent
could fire the men who had gone to the meeting, by his
disclosure that Respondent was keeping itself informed as to
the employees' union activities, and by his having summoned
the three employees to require them to account to him for
their exercise of their right of self-organization See Blue Flash
13 Respondent has offered no credible explanation of how it came
to know that Yates and Cope were at the meeting Thompson
emphasized his contacts with Marsh , but he said that Marsh at no time
told him who had been at the meeting . Driver, the supervisor who
summoned Cope and Yates to the meeting , did not testify on that
subject. Thompson 's testimony that Marsh told him that the three men
delegated him to discuss their problems with management without
describing or identifying the problems in any fashion was unconvincing
and has not been credited Marsh did not testify.
Express, Inc, supra Thompson's question to Roberts the
previous day as to whether he had been invited to the meeting
in Buis' house was also violative of the Act.
B. Conduct Affecting the Election
1. The Committee (objection 10)
As originally constituted by Respondent, the Committee
consisted of two "company men and two production men.'>r 4
At the time of the events here in question the Committe
consisted of one supervisor-member and three employee-
members. The supervisor-member was the head of the
Committee, he was appointed by Respondent at an annual
dinner. If he was unable to attend a meeting, it was postponed
or another supervisor took his place. The employees in each of
the production departments of the plant elected one of their
group as a member of the Committee. This was done upon
instructions by their respective supervisors.
The Committee met during work time in a room above the
production area which was a combination classroom and
supervisor's office, located near the production manager's
office, and the members were paid for their time. The last
committee to take office did so in July 1966. At its first
meeting, held July 29, the supervisor suggested who should be
the recording secretary and that person was forthwith chosen
and he acted as secretary at all meetings thereafter. After the
filing of the Petition on March 28 the Committee met on
March 28, April 4, 12, 18, and 25, and May 2. The minute
book discloses that during that period the Committee took up
complaints and suggestions concerning, among other things,
ventilation, additional parkine facilities, paper towels and soap
for the washroom, and a requirement that all office personnel
entering production areas wear safety shoes. In addition, in
response to a Committee request made in March or April
Respondent installed two water fountains. 1 s
Shortly after the May 2, 1967, meeting the secretary was
told by his supervisor, who was not the supervisor-member of
the Committee, that they were not going to have the meetings
for a while, and none were held at least up to the time of the
hearing No reason was stated for the suspension.
Conclusions as to the Committee The Committee was
created by Respondent on its own initiative and under terms
decided by Respondent Except for the brief document in the
minute book the Committee has no constitution or bylaws,
imposes no dues or other financial obligations upon partici-
pating employees, and has no place to meet except in the
supervisors' office. It is headed by a company representative
appointed by the Comapny, and when he or a substitute is not
available, meetings cannot be held. The Committee has no
machinery of its own for the selection of members; the
employee-members are elected; when Respondent, through
their respective supervisors, so direct. Moreover, as they are
elected by departments, Respondent can alter the Committee's
membership by means of its managerial power to transfer them
14 G C. Exh. 11.
15 Deon Hill testified that they were installed in 1967 "when it got
warmer," and that this was "not too long" after the complaint had been
made. Gress testified " . . . One of the employees put in a complaint
about no water fountains in the shop and there were two installed and
the time would have been probably March or April ," referring to 1967.
The minutes in evidence contain no entries about water fountains
GRAFTON BOAT CO. 1003
to other departments. Respondent contributes support to the
Committee by paying members for time spent at meetings and
by furnishing the meeting place. The completeness of Re-
spondent's control and domination of the Committee was
demonstrated when Respondent suspended its meetings with-
out informing the employees, or even the Committee
members, of the reasons, and not through the machinery of
the Committee but through its supervisory hierarchy. It is
found that Respondent at all times material to this case has
dominated and contributed financial and other support to the
Committee and interfered with its administration, all in
violation of Section 8(a)(1) and (2) of the Act. Federal Mogul
Corporation, Coldwater Distribution Center Division, 163
NLRB 927; Tuscarora Plastics Co., 167 NLRB No 154,
Dennison Manufacturing Company, 168 NLRB No. 131.
The vice of a dominated labor organization, and the reason
for its outlawing by Congress, is that an employer can
discourage collective bargaining by holding it out to his
employees as an instrument for that purpose which they can
adhere to without incurring his disfavor. Fry by his comment
at the February 7 meeting openly disclosed this to be
Respondent's reason for having the Committee. As the
dominated organization is in fact the employer's own creature,
subject to his control, employers have historically used this
device for the specific purpose of preventing or discouraging
their employees from resorting to genuine collective bar-
gaining. See Delaware New Jersey Ferry Company, 30 NLRB
820; Ford Motor Company, 31 NLRB 994, 1095; Weirton
Steel Company, 32 NLRB 1145. In Bethlehem Shipbuilding
Company, Ltd., 11 NLRB 105, 131, the Board commented:
... the Plan evolved as a method whereby the semblance
of collective bargaining was vouchsafed employees without
relinquishment of the ultimate control of the bargaining
agency by the management ....
See also International Harvester Company, 2 NLRB 310, 348,
where the Board said, referring to a dominated labor organi-
zation
... is it anything more than an elaborate structure
designed to create in the minds of the employees the belief
that they possess something of substance and value that
enables them to deal with their employer on an equal
footing, so that they will be sufficiently content to resist
the appeal of an outside labor unions ...
Since the Committee functioned actively for a substantial
length of time following the filing of the petition, and was in
existence when up to the date of the election, it is found that
Respondent's domination of the Committee, its interference
with its administration, and its contribution to it of financial
and other support all interfered with the employees' free
choice of a bargaining representative and tended to have an
effect on the results of the election. See Edmont, Inc., 139
NLRB 1528; National Cash Register Company, 167 NLRB No.
153. It is recommended that objection 10 be sustained.
2. Promises and threats as to benefits
(including objections 1, 5, and 9) and interrogation
The following incidents were testified to as having occurred
during the 3-week period prior to the election.
Yates testified that Driver, his "supervisor," asked him what
the employees "really" wanted through the Union. He testified
further that when he listed summer vacations, furnishing of
small tools by the Company, and "the pay scale straightened
out," Driver replied that he thought that those things would be
granted irrespective of whether or not the Union got in. He
also testified that Driver added that Respondent would inform
the employees at a meeting shortly before the election what
they would be getting. Driver admitted questioning Yates but
said only that Yates' reply referred to the furnishing of small
equipment and that he, Driver, said that he did not favor that.
Driver mentioned nothing one way or the other about a
preelection meeting or about the employees getting benefits
whether or not the Union got in. He did specifically deny
other testimony about the conversation. Yates impressed the
Trial Examiner as a truthful witness. In view of this fact, and
as Driver's denial that the statements about the granting of
benefits and the holding of the meeting was at best only by
implication, it is found that he made the statements testified
to by Yates.
Driver approached Wirch, an employee who did not
associate with the other employees, and asked him how he
thought the election would go. When it developed that Wirch
knew nothing about it, Driver called his attention to a notice
on the bulletin board and then said, "Frankly it doesn't make
any difference to me which way the election vote ... [goes]."
He then added that Wirch was scheduled for a welding test the
following week. Driver explained at the hearing that Witch had
previously requested advance notice of his test so that he could
practice.' 6 An employee's answer to Driver's question would
not disclose his point of view. In the absence of special
circumstances the question would not tend to coerce em-
ployees and was therefore not violative of the Act, nor did it
tend to affect the results of the election.
Supervisor Schneider asked Norris how he felt towards the
Union, and whether he had seen the Company's election
propaganda. Norris replied that he did not want to discuss the
matter since he was quitting. Schneider suggested that he stay
and vote' 7 and he promised Norris that he could come back if
the job he was going to turned out unsatisfactory. Schneider
denied asking Norris how he felt about the Union or
mentioning the company propaganda. Norris impressed the
Trial Examiner affirmatively as a truthful witness and his
version of the conversation has therefore been accepted.
Respondent needed employees, and it is possible that
Schneider would have made the same promise to Norris even if
an election had not been pending. However, by making the
promise while suggesting that Norris remain long enough to
vote in the election, Schneider was utilizing Respondent's
power to give jobs to induce a vote against the Union.
It is found that by holding out promises of benefit to
induce Yates and Norris not to adhere to the Union or to
designate it as bargaining representative Respondent violated
Section 8(a)(1) of the Act. It is further found that Respond-
ent's interrogation of Yates and Norris as to the employees'
expectation from the Union and Norris' union sympathies,
both engaged in in connection with the promises of benefits
referred to, and without any legitimate need for the infor-
mation sought, were likewise violative of Section 8(a)(1) of the
Act. See Blue Flash Express, Inc., 109 NLRB 591, Struksnes
Construction Co., Inc., 165 NLRB No. 102. It is found, also,
that this conduct of Respondent interfered with the em-
ployees' free choice in the election and tended to affect the
results of the election. It is recommended that objection 5 be
sustained.
16 The General Counsel does not contend that Driver 's statement 17 Norris did so, quitting 2 days after the election.
about the welding test was a promise of benefit.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schneider asked Carey and another employee what they
thought the Union could do for them that they could not do
for themselves. When Carey replied that he thought he was
entitled to go to a higher labor-grade classification, Schneider
pointed out that Carey had recently been transferred to his
section and that he could not at that time get any of his men
wage increases since, in view of "this union business,"
increases "would look like they were buying off the men to
vote against the Union."' 8 "As a general rule, an employer, in
deciding whether to grant benefits while a representation
election is pending, should decide that question as he would if
a union were not in the picture." Great Atlantic and Pacific
Tea Company, Inc., 166 NLRB No. 36, fn. 1. Whether an
employer's withholding of benefits tends to affect the results
of an election depends on the manner in which it is done. If an
employer utilizes the announcement of his decision, whether
by timing, mariner, or both, as a tactical maneuver to discredit
the Union, he interferes with the employees' freedom of
choice. See McCormick-Longmeadow Stone Co., Inc., 158
NLRB 1237, 1238; The Great Atlantic and Pacific Tea
Company, Inc., supra; Polyurethane Products Company, Inc.,
168 NLRB No. 20. Schneider's statement to Carey gave a
reasonable explanation couched in such terms as would not
lead employees to conclude that the witholding of increases
was intended to influence the employees' vote in the election.
Uarco, Incorporated, 169 NLRB No. 162. It is therefore found
that Schneider's statement was not coercive and did not
interfere with the employees' freedom of choice in the
election.
Norris testified that Shaw, a Yellow Hat whom he knew
well, told him that three employees whom he named would be
supervisors some day and therefore had too much to lose by
voting for the Union. He also testified that Shaw told him that
if the Union got in the pay scale might go down since the
Union's scale was lower than Respondent's. Shaw's version of
the latter conversation was that he expressed the opinion that
the Union would not like Respondent's wide wage spread and
would probably demand a consolidation. Carey testified that
Shaw, in the course of a discussion as to what the Union might
accomplish, said that in his opinion if the Union got in the
men might lose more than they would gain. None of the above
statements by Shaw expressed a threat of any action by
Respondent. It is found that the statements were not coercive
and that they did not interfere with the employees' free choice
in the election.
3. The anonymous propaganda
On June 12, 16, and 21, 1967, Respondent posted brief
typewritten propaganda statements on its bulletin board urging
the employees to vote against the Union.' 9 The statements,
which each remained posted about 1 day, were typewritten on
blank sheets of paper and bore no signature or other
identification as having been issued by Respondent. The
bulletin board was used exclusively by Respondent for its own
notices and for notices required by Government and State
agencies. No claim is made that anything in the content of the
notices was improper. The General Counsel has cited Heintz
Division, Kelsey-Hayes Company, 126 NLRB 151, where the
Board stated at page 153:
18 Schneider denied Carey 's testimony but the Trial Examiner found
Carey a credible witness and has accepted his testimony.
Therefore, to insure that our elections are conducted
under proper laboratory conditions, we hold that the failure
of parties in Board elections to identify themselves as
sponsors of campaign propaganda initiated by them consti-
tutes grounds for setting aside the election.
The posting of the allegedly anonymous notices was not
alleged to be an unfair labor practice. Cf. Zwickler v. Koota,
290 F.Supp. 244, (D.C.N.Y.). The bulletin board was
used exclusively by Respondent, so that the notices were
reasonably identifiable as having been sponsored by Respond-
ent. The rule in the Heintz case was expressly aimed at
campaign standards "so lowered .. that the uninhibited desires
of the employees could not be determined." There is no
indication that Respondent intended to conceal its sponsorship
of the propaganda, and as such sponsorship was in fact
implied, it is found that the posting of the notices without
signature or other identification on the notices themselves did
not interfere with the employees' free choice in the election.
Recommendation as to the objections: As it has been found
that Respondent's conduct with respect to the Committee, its
promises of benefit to induce employees to reject the Union,
and its interrogation of employees interfered with the
employees' free choice in the election and tended to affect the
results of the election, it is recommended that the election be
set aside and the tally of ballots vacated.
C. The Threat to Discharge Cope and Taylor
Naumann, a Yellow Hat who has quit Respondent's employ
testified that in April 1967 Thompson told him that "when
this union business was settled they would be able to get the
troublemakers from the shop," and that Thompson named
Cope and Taylor and one other employee as the "trouble-
makers." He also testified that several days later Driver said
substantially the same. Naumann further testified that in July
1967 he related the above to Cope and Taylor, with whom he
was on friendly terms. Cope and Taylor corroborated
Naumann. Thompson and Driver categorically denied
Naumann's testimony. Naumann, who quit on July 27, 1967,
fixed the time of his conversation with Cope and Taylor at
approximately 2 weeks before his quitting. On July 11 Cope
and Taylor both gave affidavits to a Board agent, neither of
which contains any mention of what Naumann had said. Cope
explained that Naumann had not yet told him of the incident,
and Taylor explained that he did not want to involve
Naumann, who was his friend and was still in Respondent's
employ. The Trial Examiner has found Driver credible. It is
found that Thompson and Driver did not make the statements
ascribed to them by Naumann. It is further found that the
General Counsel has failed to establish that Naumann told
Cope and Taylor that Thompson or Driver said that they or
any other "troublemakers" would be fired.
D. The Refusal to Bargain
1. Unit
a. Milton Sutton
Sutton was in charge of the toolcrib and of the several
stock-supply stations located at various parts of the plant. He
19 Exhibits 3(A), (B), and (C) attached to G.C. Exh. 1-X.
GRAFTON BOAT CO.
handed out tools and materials, including gasoline, helped load
and unload merchandise, and was responsible for the cleanli-
ness of the restrooms and of the nonproduction areas of the
plant. He was paid a weekly salary of $100, started and
stopped work a few minutes earlier and later, respectively,
than the other employees, and was not docked for absences,
but otherwise his working conditions were the same as those of
the Brown Hats. Sutton normally had one laborer assigned to
help him, but in some seasons, especially the summertime, he
had two or three. These were part-time employees, usually
schoolboys, and they worked under Sutton's direction. In his
Decision and Direction of Election the Regional Director
stated that the record was not clear as to whether Sutton was a
supervisor and he therefore directed that Sutton cast a
challenged ballot. Sutton voted in the election without
challenge, so that his ballot has been counted. At the hearing
before the Trial Examiner both the General Counsel and
Respondent took the position that Sutton was not a supervisor
and should be deemed in the unit. On the basis of the above
evidence and in view of the positions of the General Counsel
and of Respondent, it is found that Sutton was not a
supervisor and was in the unit. See American Coach Company,
169 NLRB No. 153.
b. The working foreman
Respondent's Manufacturing Department had three divi-
sions or sections-structural fabrication, welding, and
finishing-headed by their respective "supervisors" or "Red
Hats," Schneider, Driver and Kappler. The Red Hats are
conceded by all parties to have been supervisors.
The three Red Hats worked in close coordination with each
other. Each was experienced in, and fully familiar with, the
operations in all three sections, and when one was absent, the
others took over for him. All work was pursuant to detailed
plans and specifications furnished by customers. The Red Hats
worked out the estimates for labor involved in advance of
bidding and when a contract was awarded, they met together
to allocate the work among themselves, to break down the
work of their respective divisions into a large number of
minute individual jobs, and to estimate the time required to
perform each. They also met each afternoon to plan the work
for the following day. At that time they consulted with one
another as to whether they would need any men from each
others' crews temporarily for some special purpose, checked
their respective job tickets for completed jobs to ascertain
what had been done to date on each boat under construction,
and then made up cards for each of the individual jobs which
they calculated could be accomplished by their respective
crews the next day. In the morning they handed the job cards
over to their foremen, the Yellow Hats. The Red Hats were
required to give final approval to every piece of work done,
based on their own physical inspection of each detail of the
work performed, to ensure that the product would be accept-
able to the customers, particularly the Navy. In addition to
this at least the welding supervisor, and probably the finishing
supervisor also, inspected the work done by the crew working
ahead of his, to ensure that it was ready for his operation.
Approximately 45 foremen and rank-and-file employees,
"Brown Hats," worked in the Manufacturing Department,
distributed as follows- in structural, 8 Brown Hats and 2
Yellow Hats; in welding, 10 or more Brown Hats and 1 Yellow
20 This practice was discontinued about a week before the election
pursuant to the instructions given at Respondent's regular foremen's
meeting held on June 12, 1967.
1005
Hat; in finishing, 18 or more Brown Hats and 4 Yellow Hats.
Three of the last group of Yellow Hats, namely Webber,
Stemmler, and Stretton, had crews of only two or three. The
seven foremen spent the following percentages of their time
doing manual work Webber, 85 percent; Stemmler, 67
percent; Shaw, 15 percent; Stretton, 75 percent; McNeally, 60
percent; Stringer, 75 percent, and Naumann, 50 percent.
Driver testified that usually the occasion for Naumann to
perform welding work was that a new kind of welding came
up, but that he also did it when not engaged in helping other
employees or checking their work. Fry testified that the reason
Shaw did so little manual work was that he had too many men
under him to watch properly and that Respondent was in fact
seeking another Yellow Hat to relieve Shaw. Respondent had
nine labor grades. The working foremen were at the top, with
$3.65 per hour, the next lower grade was "master craftsmen,"
with $3.50 per hour, and the next lower was "craftsmen ...
Class A," with $3.30 per hour. Red Hats were salaried and had
markedly different fringe benefits from those of the rank-and-
file employees with one exception, namely, that Respondent
paid the entire cost, instead of half, of the hospitalization
insurance of both the Yellow Hats and the Red Hats. In other
respects, such as the basis of wages, punching in, pay for
overtime, nightshift differential, use of facilities, incentive
awards, and profit-sharing bonuses, the working conditions of
the Yellow Hats were like those of the Brown Hats and
different from those of the Red Hats.
As a Brown Hat became available for work, his Yellow Hat
assigned him to another job by handing him one of the job
cards. In assigning jobs the Yellow Hat was guided by the
question of who was free, the nature of the work involved, as
to both difficulty and immediacy of need, and the differing
abilities of the individual Brown Hats. This went beyond the
question of whether an employee had the needed classification
or certification. Thus, when Naumann first became a Yellow
Hat, his supervisor, Driver, explained to him the capacities of
the individual members of the welding crew, and also inserted
on each job card the name of the man assigned to the job.
After Naumann had been a foreman for a while, Driver
dispensed with this and Naumann normally selected the man
to whom to assign each job. The Red Hat also gave his Yellow
Hats several job cards in blank so that when the Red Hat was
not available the Yellow Hat could assign work for which there
was no job card without loss of tmie.20 Red Hats were not
available when in meeting and each Yellow Hat regularly made
several such assignments daily. It is found that the Yellow
Hats' assignment of work to employees was not routine in
nature but required the use of independent judgment.
As is evident from the description above of the Red Hat's
duties, they were absent from work areas during a substantial
part of each day, and even when present were engaged in in-
tensive inspection of all work performed in their respective
sections. Respondent relied upon the Yellow Hats to explain
to employees how things were to be done, to stop employees
from doing work improperly and see to it that it was done
correctly, and to require them to put additional work into a
job even after the employee thought it was finished. Although
the Yellow Hats were engaged in manual work a substantial
part of the time, they had to interrupt it to inspect each job,
no matter where located, and initial the job card immediately
upon completion?' If the job could be made acceptable by
21 An unsatisfactory job was initialed and marked "Incomplete."
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional work or by corrective measures, the Yellow Hat was
required to order the Brown Hat to perform such additional
work or correction until the job was properly done. If,
however, the job had to be completely redone, it was required
that the Red Hat issue a rework card. The Yellow Hat gave out
the rework cards, usually to the man who had done the
original work. However, there were occasions when this was
not feasible and he selected another man, frequently causing
dissatisfaction. The boats were not uniform and presented
varied problems. While the basic requirements were indicated
on the job tickets, Fry testified that poor work could be
covered up, and the record shows that Yellow Hats to a
substantial extent required the men working under them to
correct defective work. It is found that the Yellow Hats'
direction of the work of the men in their crews and their
decisions as to whether work performed was satisfactory were
not routine but required the exercise of independent judg-
ment. See General Electric Appliances Company, Department
of General Electric Company, 119 NLRB 573.
Respondent conducted "foremen's meetings," with dinner,
one evening each month The meetings were devoted to discus-
sion of such matters as what the Company was doing and why,
what work should be bid on, whether work in progress was
ahead of, or behind, schedule, production records, what could
be done to improve production and safety, and how many new
employees were needed Driver testified that the meetings were
attended " . from top level down to foremen," or Yellow
Hats, and that these were the only meetings of such nature
which he attended
Respondent maintained on its bulletin board a notice advis-
ing the employees that smoking was permitted only outside
certain designated areas and in the absence of specified condi-
tions. The notice" included the following
The red or yellow hats have the authority, at their op-
tion, depending upon their opinion of the seriousness of the
violation, to suspend any employee violating the "No
Smoking Rules "
The notice entrusted to the Yellow Hats the authority not
merely to prevent violations but to suspend employees for vio-
lations See Remington Rand Corporation, 141 NLRB 1052,
1054 This authority was not to be exercised, according to the
notice, routinely in accordance with any established pattern,
distinguish United States Gypsum Company, 92 NLRB 18, 21,
but "at their option, depending upon their opinion of the seri-
ousness of the violation"-which plainly means that the
authority vested in the Yellow Hats, in the language of the
Act, "require [d] the use of independent judgment " The non-
exercise of supervisory power so clearly bestowed and continu-
ously on display for the employees' notice does not detract
from the status of the individuals so endowed. See Alamo Ex-
press, Inc., 119 NLRB 6, 13.
22 Respondent's Exhibit 8.
23 The second card bearing the name of Schafer, General Counsel's
Exhibit 8-JJ, and the card bearing the name of Kessinger , General
Counsel's Exhibit 8-Z, were not authenticated.
24 These figures include General Counsel 's Exhibits 8-Z and 8-JJ.
See footnote 23 above.
25 The six employees and the General Counsel's Exhibit numbers of
their two cards were Cope (8-A and 8-BB), Lorsbach (8-DD and
8-EE), Manning (8-Y and 8-AA), Plummer (8-J and 8-KK), Schafer
(8-K and 8-JJ ), and Stahl (8-I and 8-II)
26 General Counsel's Exhibits 12-A through E
27 These figures respectively include Smay , who was terminated, and
Carey, who signed a card , each on March 29. The Union had received at
There is little evidence as to the amount of discretion and
independent judgment involved in the direction and assign-
ment of work by the four finishing supervisors. The record
does show, however, that Shaw spent 85 percent of his time
doing nonmanual work and that Webber's recommendations as
to employees' status would carry weight with Respondent.
Moreover, by clothing all the foremen with a uniform, visible
indicium of authority, namely the yellow hat, by having them
all attend discussions of management policy at the foremen's
meetings, and by posting the notice endowing all with the
same authority to suspend employees, Respondent demon-
strated that it considered and intended all to have equal
authority. Furthermore, the employees would necessarily as-
sume that all had equal authority in representing management
In view of their authority to assign and direct work and to
suspend employees for violations of the rules as to smoking,
and of their attendance at meetings for discussion of manage-
ment policies, it is found that Respondent's working foremen
in the Manufacturing Department are supervisors
2. Majority
The General Counsel placed in evidence union-designation
cards bearing purported signatures of 32 unit employees, of
which all, with two exceptions, were sufficiently authenticated
as to date and signature.23 Because they had not themselves
dated their first cards 6 of the 32 employees signed second
cards, so that a total of 38 signed cards were placed in evi-
dence.24 In all six cases the first card was date-stamped by
the Board's Regional Office March 28, 1967 2 5 The total
number of cards submitted in evidence by the General Counsel
corresponds with the total number of cards for which the
Union received five Regional Office receipts, to wit, 20 on
March 28, 4 on March 29, 6 on March 31, 4 on April 10, and 4
on April 24 26 Ten of the 38 cards in evidence bore no Re-
gional Office date stamp These included the six cards for
which there were duplications date-stamped by the Regional
Office March 28 The signers of two of the other four un-
stamped cards testified at the hearing
On March 29, the day following the filing of the Petition,
the unit consisted of 42 employees of whom 20, less than a
majority, had signed cards on or before that date 27
Smay left on March 29 and Gipson signed a card on or be-
fore March 31,28 so that on March 31 the Union had been
designated by 21 of the 41 employees, attaining a majority for
the first time The following is a list of the unit employees on
March 31, with the names of the card signers as of that date in
capital letters
1 Ray Adams 4 CHARLES BUIS
2 B H Bird 5 BREARD BURKS
3 WILLIAM BRITTAIN 6. Richard Calame
least three , and possibly four, additional signed cards at that time, but
the signers -Wilson, Cunningham, Shaw, and Kessmger-had been
terminated shortly before March 29.
28 While Gipson was uncertain as to the date when he signed, he
testified that it was about 6 or 8 weeks, definitely more than 2 weeks,
before he quit his employment . Respondent carried Gipson as termi-
nated April 6. However, Gipson quit while in the hospital and he
testified that he did not know whether April 6 represented the last day
he worked or the date on which he informed the Company that he
would not come back. Gipson's card, General Counsel's Exhibit 8-FF,
was dated March 31, 1967, but not by Gipson. Counsel for the General
Counsel does not contend that Gipson should be counted as part of the
Union's majority prior to March 31, 1967
GRAFTON BOAT CO. 1007
7. Carroll Camerer 25. LOYAL MANNING
8. John Camerer 26. William Marsh
9. CHARLES CAREY 27. WILBERT MARSHALL
10. BILLY JOE COOK 28. HOMER MONROE
11. FRANK COPE 29. Robert Murphy
12. Michael Cox 30. Carroll Norris
13 Thomas Driver 31. ROBERT PLUMMER
14 Sam Edwards 32. W W. Robertson
15. LLOYD EWEN 33. ROBERT SCHAFER
16. Kenneth Franz 34. Lawrence Sconce
17 John Fugate 35. WILLIAM STAHL
18 LEONARD GIPSON 36 James Story
19 GARY GRESS 37. Milton Sutton
20. GEORGE HARTLEY, JR. 38. KENNETH TAYLOR
21. Deon Hill 39. REUBEN WIRCH
22. GLENARD HULVEY 40. WILLIAM YATES
23. Waldemar Kinna 41. Joseph Ziegler, Jr.
24 GEORGE LORSBACH, JR
Terminations up to May 1, 1967, were as follows. April 6,
Gipson; April 13, Cook; April 14, Hulvey; April 21, Burks.
Additions to the payroll up to May 1 were. April 3, Richard
Baker; April 25, Harold Shaw. Additional cards were signed by
Calame on April 2, by Baker and Ziegler on April 6, and by
Hill, Kinna, Murphy, and Norris on April 10, so that the Union
had been designated by 27 of the 41 employees in the unit on
April 10. The subsequent termination prior to May 1 of three
more employees, Cook, Hulvey, and Burks, all card signers,
and the hiring of one more employee, Clarence Shaw, made
the union majority, as of May 1, 24 out of 39 9
The cards signed by the employees were all in the following
form
AUTHORIZATION FOR REPRESENTATION
(This is not an application for Membership)
International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers AFL-CIO
Fill in All Blanks Date
I, the undersigned employee of
(Name of Company)
hereby select the above named union as my collective bargain-
ing agent
Name of Employee (Please Print)
Home Address (Street)
City State
Telephone No. Class of Work Shift
Signature of Employee
(Personal Signature of Employee)
The solicitation of the designation cards was principally by
Cope, Taylor, and Buis, the former two doing most. They were
frequently accompanied by Pickering and Costello, two union
officials. Cope, Taylor and Pickering testified to the effect that
they told employees that the cards were sought in order to get
authorization for the Union to represent the employees in
bargaining with Respondent for a contract. Costello testified,
"We primarily discussed representation by the Boiler Makers
Union ... we said that we intended to represent the boat yard
either by an NLRB election or by consent, that we didn't
know what would hapven . . . ". Cope testified that he told
employees that if Respondent refused recognition, they would
seek an election. Pickering testified that prior to the filing of
the petition nothing was said about an election, but that after
it was filed, he told employees that Respondent had refused
recognition and the Union was seeking an election. The
employees were also told that the Union usually granted a
dispensation when a plant was being newly organized and
reduced the initiation fee
Several card signers3 ° testified that when solicited they
were told that the purpose of the cards was to authorize the
Union to represent them in collective bargaining with Re-
spondent. Gress' pretrial affidavit included the following.31
.. Pickering told us the Union would have a little
bargaining power if it got in He said that if a certain
percentage of the men signed cards, the Union could write
into the State of Illinois for an election. Pickering did
not mention that if so many men signed cards, as a
majority, the Company might just recognize the Union and
bargain with it . . . I thought that by signing the card, the
men would stand a little better chance of getting the Union
in, to get a better deal. I knew the card had something to do
with trying to get the Union in . . .
Carey testified that he read the card before signing it and that
the solicitors had said "that if there were enough men
interested in the election, in the union, they could have an
election. Whether he said `signed cards' or not, I wouldn't be
sure about that." Brittain, whose card was filled out and signed
by his mother at his request, since he himself was hardly
literate, testified, "I knew how many cards, you had to have so
many percent of the men to sign before you could have an
election " He stated that he did not recall having been told
that by any of the solicitors or other employees, but that he
knew it from his prior experience. He also testified that he had
requested the card from one of the employees he knew were
asking for a union. He testified, " ... they didn't tell me much
of anything really. I knew they had cards and I wanted one of
them. They didn't ask me for one; I offered." Wirch testified
that Cope had approached him and asked him if he would like
the place to be a union shop and that he had replied, "Do you
feel the union can do any good in here." Some 2 weeks later
Wirch told Cope that he felt the Union could do some good
and he requested a card, but Cope had none with him. On this
occasion, he testified, Cope told him that the Union had to
have 30 percent of the men sign in order to have an election.
Several days later Wirch again asked Cope for a card, this time
at work, but Cope told him to wait until after work Wirch
waited for Cope, first at the timeclock then at his car, but
Cope was slow in coming out. When Wirch finally saw Cope, he
went over and asked for a card. Not having one, Cope
accompanied Wirch to Buis' truck, where a card was obtained
which Wirch filled out, signed, and returned to Cope
Concluding Findings As To Majority
Respondent states in its brief. " the few employees who
identified their cards made it crystal clear that the union
solicited the cards to support an `RC' petition and any other
claim is untrue." Twelve card signers, including Taylor and
Cope, testified and Respondent explored at length the ques-
tion of the extent and nature of the discussion about the
29 From April 10 on the Union would have had a majority even if
the Yellow Hats had been in the unit.
31) Baker, Gress , Hill, Lorsbach , and Norris.
31 Respondent 's Exhibit 1.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possiblility of an election taking place. While Brittain, and
possibly Wirch, may have assumed that there would be an
election, neither was pressured to sign a card and, in fact, both
sought cards on their own initiative, Wirch with particular
persistence. No evidence was adduced that representation was
made to any employee that the cards were to be used solely to
obtain an election.
The promise to some employees of a reduced initiation fee
because the boatyard was newly organized does not invalidate
the cards. See N.L.R.B v. I. Taitel and Son, 261 F.2d 1 (C.A.
7), enfg. 119 NLRB 910, cert. denied 359 U.S. 944.
It is found that all the employees signing the cards thereby
effectively and validly designated the Union as their bargaining
representative and that they intended to do so. It is further
found that at all times since March 31, 1967, the Union has
been the exclusive representative of all the employees in the
appropriate unit for purposes of collective bargaining.
International Harvester Company, supra, and Bethlehem Ship
Building Company, Ltd., supra. The Trial Examiner finds that
Respondent's refusal to bargain was based upon such rejection
and not upon any good-faith doubt of majority. National Cash
Register Company, 167 NLRB No. 153.
It is found that by refusing to bargain with the Union on
and after April 11, 1967, Respondent violated Section 8(a)(1)
and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of the Respondent set forth
above in section III, occurring in connection with its opera-
tions described in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
3. Request and Refusal
On April 11, 1967, Respondent received from the Union a
letter32 advising that it represented a majority of the
employees in the unit and requesting a meeting for the purpose
of negotiating a collective-bargaining contract. 3 On April 19
Respondent replied '3 4 stating that Respondent did not believe
that the Union represented a majority of the employees, that
authorization cards do not necesaarily establish employees'
true desires, that an informal conference had brought out
questions as to the unit, and that the best solution was to
proceed with an election.
Immediately following receipt of the Union's request,
Respondent, as already found, continued to contribute sup-
port to, to dominate, and to interfere with the administration
of the Committee, which held meetings on April 12, 18, and
25 and May 2 Respondent did nothing to counteract the
effect of these actions On the contrary, by telling Hill that
meetings would not be held "for a while" Respondent made
clear that it was retaining the Committee. That organization
represented Respondent's answer to the problem of the
employees' exercise of their right to bargain collectively
through representatives of their own choosing; Respondent so
stated on February 7. Respondent used the Committee to
inveigle the employees to resist the Union's appeal in the hope
that the Union's strength would be undermined and collective
bargaining thereby avoided. By this course of action Respond-
ent was refusing to bargain. See Petrolane Gas Service, Inc,
138 NLRB 1004, 1005 The election which Respondent was
insisting upon could not be a fair one in the face of these
actions of Respondent Moreover, Respondent reinforced its
utilization of the Committee to inveigle the employees away
from resort to collective bargaining with other unfair labor
practices. Its supervisory personnel held out promises of
benefit to employees and engaged in coercive interrogation for
the same purpose These unfair labor practices, which were
patterned by some of Fry's conduct at the February 7
meeting, negate Respondent's claim that it declined to bargain
because of any good-faith doubt of majority. Respondent's
conduct, especially with respect to the Committee, establishes
that it simply rejected genuine collective bargaining See
32 General Counsel 's Exhibit 3
33 The General Counsel contends that the Petition in Case
14-RC-5677, which stated on its face that it constituted a request for
recognition , was a valid and continuing demand for recognition. As the
V. THE REMEDY
As it has been found that Respondent has engaged in
certain unfair labor practices, it is recommended that the
Board issue the Recommended Order set forth below requiring
Respondent to cease and desist from said unfair labor practices
and to take certain affirmative action which will effectuate the
policies of the Act.
Since Respondent has dominated and interfered with the
administration of the Committee and has contributed support
to it, it is recommended that Respondent be ordered to
disestablish the Committee as collective-bargaining representa-
tive of any of its employees Such order should not be deemed
to interfere with the Committee's functioning as other than a
labor organization. The order for disestablishment of the
Committee is recommended notwithstanding that it was
apparently dormant from shortly after May 2, 1967, to the
time of the hearing, and possibly thereafter The Committee
has never been dissolved, nor is there any evidence that the
employees generally have even been told that its functioning
has been suspended. The employees may still regard it as an
existing labor organization. Under such circumstances Re-
spondent should be required formally to disestablish the
Committee.
Respondent's use of the device of a dominated labor
organization to defeat collective bargaining, and the extensive
unfair labor practices by its top management immediately
upon learning of the employees' interest in self-organization,
indicate a disposition on Respondent's part to defeat the
policies of the Act It is therefore recommended that Respond-
ent be required to cease and desist from infringing in any
manner on the rights of the employees guaranteed in Section 7
of the Act.
VI. THE REPRESENTATION PROCEEDING
As it has been recommended that the objections be
sustained , the Tally of Ballots vacated and the election set
aside, it is unnecessary that any disposition be made of the
challenged ballots, and no recommendation is, therefore, made
General Counsel did not establish that Respondent received a copy of
the Petition at any time prior to April 12 , when it received the Notice
of Hearing in the representation proceeding, it is unnecessary to decide
this question.
34 General Counsel's Exhibit 4.
GRAFTON BOAT CO.
in that respect In view of the bargaining order which has been
recommended it is further recommended that the representa-
tion proceeding be dismissed.
Upon the basis of the foregoing findings of fact and of the
entire record in this case, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Respondent, Grafton Boat Co , Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act
2. Respondent is, and at all times material has been an
employer within the meaning of Section 2(2) of the Act
3. International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers, and Helpers of America, AFL-
CIO, and the Labor Management Committee are each a labor
organization within the meaning of Section 2(5) of the Act
4. Respondent's working foremen in the Manufacturing
Department are supervisors within the meaning of Section
2(11) of the Act.
5 All production and maintenance employees, including
plant clericals, employed at Respondent's Grafton, Illinois,
facility, excluding office clerical employees, professional em-
ployees, guards, working foremen in the Manufacturing De-
partment, and other supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act
6. At all times since March 31, 1967, the Union has been,
and it still is, the exclusive representative of all the employees
in the appropriate unit for the purpose of collective bargining
in respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, within the
meaning of Section 9(a) of the Act
7. By refusing to bargain collectively with the Union as the
exclusive representative of all its employees in the appropriate
unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
Act
8 By dominating and by interfering with the administra-
tion of the Labor Management Committee, and by contribut-
ing to it financial and other support, Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(1)
and (2) of the Act
9. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed in Section 7 of the Act
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
10. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conslusions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations Act,
35 In the event that 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. In
the further event that the Board 's Order is enforced by a decree of the
1009
as amended, Respondent, Grafton Boat Co., Inc., its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and
Helpers of America, AFL-CIO, as the exclusive representative
of its employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, or other terms or
conditions of employment. The appropriate bargaining unit is.
All production and maintenance employees of Grafton
Boat Co , Inc , including plant clericals, employed at its
Grafton, Illinois, facility, excluding office clerical em-
ployees, professional employees, guards, working foremen
in the Manufacturing Department, and other supervisors as
defined in the Act.
(b) Dominating or interfering with the administration of
the Labor Management Committee or any other labor organi-
zation of its employees, or contributing financial or other
support to such labor organization
(c) Interrogating employees concerning their union mem-
bership or desires in a manner or under circumstances
constituting interference, restraint or coercion within the
meaning of Section 8(a)(1) of the Act
(d) Promising employees more desirable working condi-
tions or other benefits if they refrain from designating the
Union or any other labor organization as their representative
for collective bargaining, or from joining or assisting or
remaining members of such labor organization
(e) Threatening to discharge employees for engaging in acti-
vities on behalf of the Union or any other labor organization.
(f) Creating the impression among employees that Re-
spondent has engaged in surveillance of employees in their
union activities.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which, it is found,
will effectuate the policies of the Act.
(a) Upon request, bargain collectively with the Union as
the collective-bargaining representative of the employees in the
appropriate unit, and, if an understanding is reached, embody
such understanding in a signed agreement
(b) Completely disestablish the Labor Management Com-
mittee as representative of any of its employees for the
purpose of dealing with it in respect to grievances, labor
disputes, wages, rates of pay, hours of employment or other
conditions of employment
(c) Post at it office and place of business at Grafton,
Illinois, copies of the attached notice marked "Appendix ,31
Copies of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by its
representative, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps
shall be taken to ensure that said notices are not altered,
defaced, or covered by any other material
United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 14, in writing
within 20 days from the receipt of this Recommended Order,
what steps Respendent has taken to comply herewith.3 6
IT IS ALSO RECOMMENDED that the complaint be dis-
missed insofar as it alleges that Respondent promised to assign
employees more desirable or clean jobs or higher seniority,
threatened to assign more arduous or disagreeable work to
employees who engaged in union activities, threatened em-
ployees with loss of benefits if employees selected the Union
as their collective-bargaining representative, or threatened not
to grant wage increases during the pendency of union activities
among the employees It is also recommended that paragraph
5-0 of the complaint be dismissed.
36 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
Director for Region 14, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that
WE WILL, upon request, bargain with International
Brotherhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers of America, AFL-CIO, as the
exclusive representative of our employees in the appropriate
unit, which is
All production and maintenance employees of
Grafton Boat Co , Inc., including plant clericals,
employed at its Grafton, Illinois, facility, excluding
office clerical employees, professional employees,
guards, working foremen in the Manufacturing Depart-
ment, and other supervisors as defined in the Act.
WE WILL NOT dominate or interfere with the adminis-
tration of any labor organization of our employees nor will
we contribute financial or other support to it
WE HEREBY disestablish the Labor Management Com-
mittee as representative of any of our employees for the
purpose of dealing with us with respect to grievances, labor
disputes, wages, rates of pay, hours or employment or other
conditions of employment and we will not recognize it or
any successor for any of the above purposes
WE WILL NOT interrogate you concerning your union
membership or desires in a coercive manner or under
circumstances constituting coercion.
WE WILL NOT promise you more desirable working
conditions or other benefits if you refrain for designating
the Union or any other labor organization as your repre-
sentative for collective bargaining, or if you refrain from
joining, assisting, or remaining members of such labor
organizations.
WE WILL NOT threaten to discharge you for engaging in
activities on behalf of the Union or any other labor
organization
WE WILL NOT create the impression among you that we
have engaged in surveillance of your union activities.
WE WILL NOT in any other manner interfere with,
restrain or coerce you in the exercise of your rights to
self-organization, to bargain collectively through representa-
tives of your own choosing, and to engage in any other
concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such rights
might be affected by an agreement requiring membership in
a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
Relations Act
GRAFTONBOAT CO, INC
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provision, they may communicated di-
rectly with the Board's Regional Office, 1040 Boatmen's Bank
Building, 314 North Broadway, St Louis, Missouri 63102
Telephone 662-4154.