Ripley Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1974

209 N.L.R.B. 481 (N.L.R.B. 1974)

MISSOURI HEEL CO. 481
Missouri Heel Company , a Division of Ripley Indus-
tries, Inc. and District No. 9, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO and Mold Making Shop Committee,
Party in Interest . Case 14-CA-7206
March 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 20, 1973, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, both Respondent and
the General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and finds ment in certain of Respondent's
exceptions. Accordingly, we adopt only so much of
the Administrative Law Judge's rulings, findings, and
conclusions as is consistent with our Decision and
Order herein.
The Administrative Law Judge found that Respon-
dent had violated Section 8(a)(1) of the Act by
various conduct, and had not violated Section 8(a)(2)
by other conduct. We agree with his finding of no
violation of Section 8(a)(2), but not with his findings
of 8(a)(1) violations.
Respondent is engaged in the manufacture of
plastic shoe heels and related products. For many
years, its production and maintenance employees,
except for mold shop employees, have been repre-
sented for collective-bargaining purposes by a local
of the Boot and Shoe Workers International Union.
For 10 years, from 1961 to 1971, the mold shop
employees were represented separately by a commit-
tee of employees. The committee was formed in 1961
by a group of mold shop employees, including Santo
Puglisi, after Puglisi had obtained permission from
Carl Gendece, plant superintendent, to "form our
own shop committee." The practice was for the
committee annually to draw up proposals for wage
and fringe benefits which were presented to Gen-
dece, who transmitted them to Mr. Slosberg, Respon-
dent's president. Slosberg would then make counter-
proposals which the committee submitted to employ-
ees for acceptance or rejection by secret ballot. If the
vote were favorable, which was usually the case,
Respondent would write up the accepted terms in a
so-called "Statement of Policy," which Slosberg
209 NLRB No. 79
would sign on behalf of Respondent, and the
committee would sign as representative of the
employees.
In November 1971, Gendece asked Puglisi if the
committee were going to negotiate with Respondent
for the coming year, 1972. Puglisi replied that the
committee was no longer in existence inasmuch as no
employee was willing to serve on it. Gendece said
that Respondent would have to negotiate with the
employees individually. Each employee was then
asked to approve Respondent's proposals by signing
the document embodying these proposals, and did
so, after Respondent had explained to each employee
that because of Phase II wage and price controls,
Respondent was restricted in what it could offer
employees in the way of improved wage and fringe
benefits. In this manner the "Statement of Policy"
for the period November- 15, 1971, through Decem-
ber 31, 1972, was negotiated and approved by
employees of the mold shop.
In December 1972, Respondent negotiated a new
collective-bargaining, contract with the Boot and
Shoe Workers, effective from January 1, 1973, which
included improved hospital, surgical, and pension
plan benefits. On December 20, 1972, the Charging
Party, District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO,
herein called District 9, filed a representation
petition seeking to represent a unit of all production
and maintenance employees. Because of the penden-
cy of this petition, Respondent was in doubt as to the
legality of extending the improved benefits negotiat-
ed with the Boot and Shoe Workers to the mold shop
employees as had been its practice in the past.
However, on December 29, 1972, District 9 withdrew
its representation petition. Respondent received
notice of the withdrawal on January 3, 1973.
Thereupon Respondent consulted its counsel about
putting into effect for mold shop employees the
improved fringe benefits previously negotiated with
the Boot and Shoe Workers. Counsel advised
Respondent that the improved benefits should be
granted because of past practice and the withdrawal
of the petition. Thereupon, Mr. Slosberg assembled
the mold shop employees, told them that District 9
had withdrawn its petition, and announced that the
improved benefits which had been negotiated with
the Boot and Shoe Workers would be placed into
effect for mold shop employees. During the course of
his talk to employees, Mr. Slosberg assured them that
they had the right to be represented by District 9 or
any other labor organization. Mr. Slosberg also said
that he was willing to meet and negotiate with the
employees through a committee, as had been done in
the past, or individually, or through a union.
On January 4, 1973, Superintendent Gendece
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the shop employees together and told them
that Respondent was willing to offer each of them a
30-cent-per-hour wage increase in addition to the
improved fringe benefits which Slosberg had granted
the day before. Some of the employees, including
Puglisi and Leroy Schmaltz, stated that they de-
served a little more. Gendece replied that he had no
authority to offer them more and they would have to
talk to Slosberg if the wage offer he had made was
unsatisfactory. Gendece then said that obviously all
of them could not go in to see Slosberg; they would
have to choose representatives. Schmaltz, who had
been on the committee in previous years, and
Winfred Stafford volunteered to meet with Slosberg,
and employees Allen Payne, Ken Erickson, and Ed
Cover consented to Schmaltz and Stafford represent-
ing them. Puglisi also volunteered to meet with
Slosberg, but only to represent himself. This group
then proceeded to Slosberg's office, where they were
joined by employee Caesar Tamburino, who volun-
teered to represent the night shift. At the meeting in
Slosberg's office, the men said that they wanted more
than the 30-cent-an-hour wage increase previously
offered them. Slosberg explained that he could not
give a larger wage increase because of Government
limitations. After some discussion, Slosberg agreed to
Puglisi's proposal to add 5 cents an hour more for the
last 2 months of the contract year to make up for the
loss caused the employees by the 2 months' longer
duration of the preceding contract. Tamburino then
said that the proposals would have to be submitted to
the employees for a vote. Tamburino conducted the
vote among the night-shift employees, and Puglisi
and Schmaltz among the day-shift employees. The
vote was in favor of acceptance. On January 5,
Puglisi and Schmaltz went to Slosberg's office, where
Slosberg asked them to sign an addendum to the
1972 "Statement of Policy" embodying the new
wages and fringe benefits effective for the 1973
contract year. Schmaltz signed, but Puglisi hesitated
until Gendece explained that it was for Slosberg's
personal files. Puglisi then signed. Later Tamburino
and Stafford also signed.
Meanwhile , on January 4, 1973, District No. 9 filed
a new representation petition seeking to represent
only the mold shop employees. However, Respon-
dent did not learn of this petition until 2:30 p.m. on
January 5, which was after the employees had
accepted Respondent's contract proposals. On Janu-
ary 10, Respondent put into effect the increased
wage rates and benefits set forth in the addendum.
The Administrative Law Judge's Findings of
8(a)(1) Violations
A. Threatening Employees With Loss of
Employment
Employee Cover testified that on January 3, 1973,
Mold Shop Foreman Svoboda came to him at his
work place and in the course of a conversation said:
"If the union gets in, we will all not be working here.
Possibly you will. But I won't myself. I probably
won't myself because Bobby Slosberg doesn't care
where he gets his molds made." Employee Payne also
testified that Svoboda had told him the same day
that Slosberg was disappointed that the mold shop
employees hadn't come to him first and that Slosberg
didn't care where he had his molds made. Payne
further testified that it was not unusual for Respon-
dent to have its molds made elsewhere and that he
did not consider Svoboda's remark to him a threat.
The Administrative Law Judge found that Svoboda's
statements to Cover and Payne constituted "a veiled
threat to cause employees loss of work in order to
discourage support or interest in unionism" and were
therefore unlawful. We agree with this interpretation
of the Svoboda statement to Cover. While the matter
is close, since the reference to loss of employment did
not refer directly to any loss of employment by
Cover himself, there is nevertheless inherent in it a
suggestion that the future employment of both
supervisors and unit employees would be put in
jeopardy. However, as the remark to Payne, unlike
the remark to Cover, made no reference to and
contained no reasonable implication of any possible
loss of employment, we do not agree that Svoboda's
statement to Payne standing alone or in context
attained the level of a "veiled threat" to employment
in order to discourage support of a union.
The Administrative Law Judge also found that at
the meeting of January 4, Superintendent Gendece
told the employees that if the wages of the mold shop
employees "got too high" Respondent would replace
them with machinists . He also considered this an
unlawful threat violative of Section 8(a)(1). This
finding is based on an inaccurate summary of the
testimony of General Counsel witnesses Becquett
and Payne. Becquett testified:
He [Gendece] did make a point that the mold
maintenance men, that if the rate got too high they
would have to bring in a couple of machinists and
let them do the work. [Emphasis supplied.]
Payne testified:
Q. Now, during this meeting with Gendece,
didn't one of the mold changers say that he ought
to get the same price as a machinist? [Emphasis
MISSOURI HEEL CO.
supplied.]
A. Could you rephrase that?
Q. I said during that meeting with Gendece,
didn't one of the changers, mold changers say that
he ought to get the same price or wage as the
machinist got? [Emphasis supplied.]
A. I think they were wanting a raise . .. .
Q. . Do you remember Gendece saying at that
meeting if he had to pay that same wage rate as
machinists he would hire machinists because they
could do other work?
A. He said something to that effect, yes.
Mold changer or mold maintenance man is a
classification lower in skill than that of machinist,
which is the other classification in the mold shop.
The foregoing testimony of Becquett and Payne
corroborates Gendece's testimony that when a mold
changer asked him why a mold changer couldn't
make as much money as a machinist, Gendece
replied that if he had to pay a mold changer the
wages of a machinist, he would rather hire a
machinist since a machinist could also do tooling
work. We find no unlawful threat in such statement
by Gendece to a mold changer. It was a reasonable
prediction based on objective economic fact and was
therefore lawful.
B. Offers and Promises of Benefits
The Administrative Law Judge found that on
January 5 Foreman Svoboda promised employee
Carrigan a raise "around contract time" and that
later the same day Superintendent Gendece granted
Carrigan a 15-cent-an-hour raise every 45 days until
July, but added that if a union got in he would be
obliged to eliminate Carrigan's classification because
Respondent could not pay a ridiculous salary. The
Administrative Law Judge found that Svoboda had
unlawfully promised a benefit, and that Gendece had
unlawfully granted a benefit and unlawfully threat-
ened a loss of employment if a union got in. The
Administrative Law Judge's finding is based on a
misreading of Carrigan's testimony. Carrigan testi-
fied:
Q. Mr. Carrigan, did you have a conversation
with the mold shop foreman, William Svoboda,
on January 5, 1973?
A. Yes, I did.
* * * *
Q. Tell us, please, what was said?
A. He came up to me and told me, "As you
remember, I promised you a raise around con-
tract time. Becquett was mistreating you by not
giving you a raise." I said, "yes, I remember. I
asked you about two months ago for a raise and
you told me to wait until contract time was
483
coming up." I told him that was one of the
reasons I would like to have a union because in a
union, it would state in a union contract when I
would be qualified for a raise and when I would
get it. He told me that the union wouldn't have
anything to do with the qualifications for a raise.
That was about all that was said at that time.
Carrigan 's testimony thus shows that he had been
promised a raise at least 2 months before January 5,
at a time when there was unquestionably no union
organizing activity.
Carrigan further testified:
Q. The same day , Mr. Carrigan, did you have
a conversation with Mr . Gendece?
A. Yes, I did.
Q. Would you tell us, please, what was said?
A. He showed me a slip of paper showing me
where I would get a 15-cent raise from every
month and a half starting from January until July
then he told me that I would get-at vacation
time he would talk to me again about bringing me
up to top pay.
Q. Was anything else said?
A. He told me if the union did not get in now,
but got in at a later date, he would have to
eliminate my classification because he could not
pay a ridiculous salary.
Carrigan's testimony thus also shows that Gendece's
grant of a wage increase was in accordance with the
promise made to him 2 months earlier that he would
receive a wage increase "around contract time." The
implementing of this promise, made at a time when
there was no union organizing activity, was therefore
not unlawful.
However, we do consider unlawful Gendece's
statement that if the union got in later, he would
have to eliminate Carrigan's classification because he
could not pay a ridiculous salary. We find the threat
to eliminate Carrigan 's classification if the union
came in to be violative of Section 8(a)(1), despite the
"ridiculous salary" reference.
The Administrative Law Judge found that Presi-
dent Slosberg's January 3, 1973, explanation of the
automatic benefits to which the mold shop employ-
ees were entitled, i.e., life insurance , medical insur-
ance , and pension benefits negotiated for the
remainder of the plant employees, violated Section
8(a)(1) "in view of the fact that District No. 9 was
contemporaneously conducting its organizational
drive ...." There are at least two objections to this
finding. In the first place, on January 3, Respondent
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been informed that District No. 9 had with-
drawn its representation petition seeking to represent
the plant's production and maintenance employees.
It was not until January 5 that Respondent became
aware that District No. 9 had filed a new petition
seeking to represent a unit limited this time to mold
shop employees. There is no evidence that, despite
the withdrawal of the first petition, Respondent was
aware on January 3 that District No. 9 was engaged
in a new organizing campaign among the mold shop
employees. Accordingly, Respondent could not have
been influenced in extending additional fringe
benefits to mold shop employees by any contempora-
neous organizing campaign among such employees.
In the second place, in extending to mold shop
employees the improved fringe benefits negotiated
with the Boot and Shoe Workers for other pro-
duction and maintenance employees, Respondent was
merely following its past practice of putting into
effect for the mold shop employees benefits previous-
ly granted to other plant employees. In view of the
foregoing, we find no violation of Section 8(a)(1) in
President Slosberg's January 3 announcement of
improved life insurance, medical insurance, and
pension benefits for mold shop employees.
Similarly, we reject the Administrative Law Judge's
finding that Superintendent Gendece's offer of a 30-
cent-an-hour wage increase to the mold shop
employees on January 4 violated Section 8(a)(1). The
Administrative Law Judge based this finding on the
alleged fact that it "occurred at a time when District
No. 9 was attempting to organize the mold shop
employees . . . ." As set forth above, however,
Respondent was not on notice, on January 4, that
District No. 9 was engaged in an organizational
campaign among the mold shop employees. Hence,
this factor could not have influenced the decision to
grant the 30-cent-an-hour wage increase.
C. Grant of Benefits
The Administrative Law Judge found that the wage
increases granted to employees on January 4, 1973,
were intended "to discourage interest in a union and
violated Section 8(a)(1) of the Act." The evidence
does not justify the inference drawn by the Adminis-
trative Law Judge. On January 4, Respondent was
unaware that a question of representation existed
which could be affected by the grant of wage
increases . District No. 9's representation petition
filed in December had been withdrawn to Respon-
dent's knowledge. Respondent did not become aware
of the filing of the more restricted representation
petition until the afternoon of January 5. Respon-
dent's wage increase offer was also consistent with its
past practice. Under these circumstances, we reject
the Administrative Law Judge's conclusion that the
grant of the increase was intended to discourage
interest in a union . Consequently, we find that the
grant of these benefits was not unlawful.
D. Urging Employees To Form Their Own
Committee
The Administrative Law Judge found that Presi-
dent Slosberg's remark to employees in his January 3
speech, "If you would like to get a committee
together like we have done in the past, come up with
some proposals, we would be willing to listen to
you," constituted an attempt to revive the committee
and to "deter their interest in a union." However, just
as in the case of our findings as to Respondent's
promises, offers, and grants of benefits, we find that
Slosberg's statement was in conformity with past
practice and a practicable suggestion as to how to
deal with the employees' wage and benefit problems.
District No. 9 had withdrawn its representation
petition, the organizational campaign had presuma-
bly ceased, and Respondent was therefore free to
bargain with the employees. Under these circum-
stances, we find that Slosberg's suggestion was a
reasonable and feasible method for negotiating with
the employees, not an attempt to deter their interest
in a union . It is significant in this connection that the
Administrative Law Judge rejected the General
Counsel's contention that Respondent assisted or
dominated the committee in violation of Section
8(a)(2) of the Act. Accordingly, we find that, by the
foregoing statement of President Slosberg, Respon-
dent did not violate Section 8(a)(1).
The Administrative Law Judge also found that
Superintendent Gendece's remark to employees on
January 4 that, if they were dissatisfied with the 30-
cent-an-hour wage increase he was proposing, they
should form a committee to see Slosberg, violated
Section 8(a)(1), because it was "interfering with the
statutory right of employees to have a union
represent them by practically forcing them to
reanimate [sic] the old Committee. . . ." We find
this remark of Gendece no more coercive or unlawful
than President Slosberg's related statement on the
same subject on the previous day and for the same
reasons.
E. Encouraging or Compelling Employees To
Sign a Collective- Bargaining Agreement
The Administrative Law Judge found, contrary to
the contention of the General Counsel, that employ-
ees Puglisi and Schmaltz voluntarily signed the
"Statement of Policy" as requested by President
Slosberg. However, he also found that Puglisi was
induced to sign the statement "because it was
MISSOURI HEEL CO.
misrepresented to him that this instrument was for
Slosberg's personal file." By resorting to such
misrepresentation, the Administrative Law Judge
concluded, "respondent at least interfered with
Puglisi's right to decide whether he wished to be
represented by a union to negotiate a collective
bargaining contract for him." He found that by this
conduct Respondent violated Section 8(a)(1). We
reject this finding. Schmaltz, Puglisi, and the rest of
the employees had voted to accept the proposals
embodied in the "Statement of Policy." Puglisi had
signed similar statements in the past and knew their
import. Hence, Respondent's misrepresentation was
of slight, if any, significance. It certainly does not rise
to the level of a violation of the National Labor
Relations Act.
CONCLUSIONS OP LAW
1. District No. 9 and the Committee are labor
organizations within the meaning of Section 2(5) of
the Act.
2. Respondent is an employer within the meaning
of Section 2(2), and is engaged in commerce as
defined in Section 2(6) and (7) of the Act.
3. By (a) threatening to cause employees to lose
work and to eliminate the mold changer classifica-
tion in order to discourage interest in or support of
District No. 9 or any other labor organization and
(b) by threatening to have its molds made elsewhere
if the employees selected District No. 9, Respondent
has engaged in unfair labor practices condemned by
Section 8(a)(1) of the Act.
4. The above-described unfair labor practices
affect commerce within the meaning of Section 2(6)
and (7) of the Act.
5. Respondent has not committed any other
unfair labor practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , we shall order it to
cease and desist therefrom and take certain affirma-
tive action which will effectuate the policies of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Missouri Heel Company, a Division of Ripley
Industries, Inc., St. Louis, Missouri, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to cause employees to lose work
485
and to eliminate the mold changer classification in
order to discourage interest in or support of District
No. 9 or any other union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at its premises at St. Louis, Missouri,
copies of the attached notice marked "Appendix." I
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by it 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 by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not found herein.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT threaten to cause employees to
lose work and to eliminate the mold changer
classification in order to discourage interest in or
support of District No. 9, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed to them in
Section 7 of the National Labor Relations Act.
All our employees are free to become or remain, or
to refuse to become or remain , members of District
No. 9, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other union.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MISSOURI HEEL
COMPANY, A DIVISION OF
RIPLEY INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 210 North 12th Boulvard, Room 448,
St. Louis, Missouri 63101, Telephone 314-622-4167.
DECISION
STATEMENT OF THE. CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case brought under the
provisions of Section 10(b) of the National Labor Rela-
tions Act, herein called the Act (29 U.S.C. 160(b). It was
commenced by a complaint issued on February 27, and
amended on March 20, 1973, by the General Counsel of
the National Labor Relations Board, herein called the
Board, through the Regional Director of Region 14 (St.
Louis, Missouri), naming as Respondent Missouri Heel
Company, a division of Ripley Industries, Inc. It also
names, as Party in Interest, Mold Making Shop Commit-
tee. Said complaint is based on a charge filed on January
13, 1973, by District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called District No. 9.
Essentially the complaint as amended alleges that
Respondent violated Section 8(a)(1) and (2), and that such
conduct affects commerce within the meaning of Section
2(6) and (7). of the Act. Respondent has answered
admitting certain allegations of the complaint but denying
that it engaged in any unfair labor practices.
Pursuant to due notice this case came on to be heard,
and was tried before me, on May 22 and 23, 1973, at St.
Louis, Missouri. All parties except the Party in Interest
were represented at and participated in the trial, and had
full opportunity to adduce evidence, examine and cross-
examine witnesses , file briefs, and present oral argument.
Certain motions of Respondent to dismiss were denied at
the trial. Briefs have been received from the General
Counsel and the Respondent.
This case presents the issues of whether Respondent: (a)
threatened employees with loss of employment to discour-
age interest in or support of said District No. 9; (b) offered
and promised benefits to employees to prevent union
organization or to abandon union activities; (c) urged
employees to form their own committee in order to
discourage their union activities; (d) encouraged and
compelled employees to sign a statement of policy
purporting to be a collective-bargaining agreement in order
to discourage their union activities; (e) granted benefits to
employees to discourage their union activities; (f) threat-
ened an employee with loss of employment if he supported
District No. 9; and (g) assisted, dominated, contributed to
the support of, and interfered with the administration of,
Mold Making Shop Committee.
Upon the entire record in this case, and from my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Missouri Heel Company, a division of Ripley Industries.
Inc.,l a Delaware corporation, is engaged at St. Louis.
Missouri, in manufacturing and nonretail selling of plastic
shoe heels and related products. During the year 1972 it
purchased goods and materials valued in excess of $50,000,
of which goods and materials valued in excess of $50,000
were delivered to it directly from points located outside the
State of Missouri. I find that it is an employer within the
meaning of Section 2(2) and that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to assert
jurisdiction over it in this proceeding.
It. THE LABOR ORGANIZATIONS INVOLVED
District No. 9 and Mold Making Shop Committee each
is a labor organization as defined by Section 2(5) of the
Act. Said Mold Making Shop Committee is hereafter
called the Committee.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
It was stipulated that in the past Respondent has dealt
with the Committee for the mold shop employees. It was
further stipulated that the Boot and Shoe Workers
represents the remainder of the plant.
Santo Puglisi, a toolmaker in Respondent's machine or
mold shop, gave testimony which may be condensed
substantially as follows. The Committee was first formed in
1961 by a group of mold shop employees, which included
Puglisi, after he asked Carl Gendece, the plant superin-
tendent, for and obtained permission to "form our own
shop committee." Thereafter the Committee annually
"drew up proposals" on wages and benefits which it
presented to Gendece. Then Gendece brought such
proposals to Vice President Slosberg. A few days later
Slosberg informed the Committee what the Respondent
was going to offer on such proposals. Then the Committee
took a vote, by written ballot, among the mold shop
employees to ascertain whether they desired to accept or
reject the Company's offer. "Usually we would accept it."
After the Company's offer was accepted it was written out
in a so-called "statement of policy."
I This is the name of Respondent as amended at the tnal
MISSOURI HEEL CO.
Such practice of the Company's dealing with the
Committee has been continued since 1961. In November
1971, Gendece asked Puglisi if it would deal with the
Company in the coming year. Puglisi replied that the
Committee no longer existed because no one was willing to
serve on it. This caused Gendece to remark, "I guess we
will have to negotiate with each [employee] individually."
Following this negotiations were made by the Company on
an individual basis with each employee in the mold shop.
Then each employee was asked to "initial a scratch piece of
paper approving what the company's proposal was."
Pughsi initialed it in November 1971.
In the fall of 1972 the Machinists Union attempted to
organize the mold shop employees and filed an RC
petition. On January 4, 1973, William Svoboda, Respon-
dent's mold shop foreman, showed Puglisi a letter from the
NLRB stating that the Machinists Union had withdrawn
its said RC petition to have an election to represent the
mold shop employees. About 2 p.m., on the same day
Superintendent Gendece spoke to the assembled mold
shop employees offering them an increase in wages of 30
cents an hour and greater insurance benefits. Puglisi and
Schmaltz each stated that he "deserved a little bit more."
Thereupon Gendece replied that those not satisfied with
his proposal would have to request a greater raise from
Vice President Slosberg. Consequently, Puglisi, Schmaltz,
and Stafford, another mold shop employee, asserted they
would call upon Slosberg for a larger increase.
About 3:50 p.m. on said January 4 Gendece told Puglisi
to see Slosberg. However Gendece told the other mold
shop employees that if Puglisi did so that the latter "is
going to represent all of you." But when Puglisi insisted he
was representing himself only Gendece agreed. Then
Puglisi and employee Tamburino went to Slosberg's office.
Slosberg told them his hands were tied and that he could
not exceed the 5.5 percent frozen limit , and added that he
desired to continue with an annual "statement of policy"
as followed in the past. After some discussion Slosberg
gave a 5-cent-an-hour increase to the mold shop employees
but only for the previous 2 months.
The next day, January 5, William Svoboda, the mold
shop foreman, told Pughsi that the night shift in the mold
shop had rejected the Company's offer mentioned above,
but the night foreman accepted it. About 9 a.m. Svoboda
asked Puglisi to go to Slosberg's office. When Puglisi
arrived there he found employee Schmaltz already there.
Slosberg told them that the insurance benefits had
improved and suggested they telephone the insurance
company to have these benefits explained. Puglisi did so.
Then Slosberg made 10 written amendments to the
Company's latest "statement of policy" and asked Puglisi
and Schmaltz to sign such amended statement. Schmaltz
signed but Puglisi refused. Soon thereafter Puglisi signed
after being assured by Gendece that such statement was
for Slosberg's "personal files." (See Joint Exh. 5.)
On cross-examination Puglisi said that the benefits
described by Slosberg at the meeting of January 1973 were
companywide, that they had been "worked out for the
Boot and Shoe Workers," and that whenever any improve-
ments are negotiated with the Boot and Shoe Workers
"they are tendered automatically to the machine shop."
487
This also occurred in 1973. He also conceded that he,
Schmaltz, and Tamburino conducted the vote on the
question of whether the first and second shift of the mold
shop would accept the Company's 1973 proposals.
Another witness for the General Counsel is Alphonsus
Carrigan. An adequate synopsis of his testimony follows.
Carrigan is a mold maintenance man on the first shift of
the toolroom or the mold machine room. On January 5,
1973, his foreman, William Svoboda, mentioned to him
that Carrigan had been promised a raise "around contract
time." When Carrigan replied that it was desirable to have
a union because the collective-bargaining contract would
be explicit as to when he would qualify for a raise , Svoboda
insisted "that the union wouldn't have anything to do with
the qualifications for a raise." Later that day Plant
Superintendent Gendece informed Carrigan that the latter
would receive a 15-cent-an-hour raise every month and a
half until July. However, Gendece added that "if the union
got in at a later date he [Gendece] would have to
eliminate my [Camgan' s] classification because he could
not pay a ridiculous salary."
Gerard T. Becquett, a moldmaker in the machine shop or
toolroom, also testified. His evidence may be abridged as
follows. On January 3, 1973, Mold Shop Foreman Svoboda
told him that District No. 9 of the Machinists had
withdrawn its RC petition to represent the mold shop
employees and that Slosberg, Respondent's vice president,
would speak to such employees. Later that day Slosberg
addressed said employees. Svoboda and Plant Superin-
tendent Gendece were also present. After informing the
men that District No. 9 had rescinded its RC petition,
Slosberg said that he was "perfectly within our rights to
talk to you" as a result of such recall. Continuing he told
them that they were "already automatically covered" by an
increase in the amount of insurance and pension benefits,
the provisions of which he outlined to them, and suggested
that "if you would like to get a committee together like we
have done in the past, come up with some proposals, we
would be willing to listen to you." He also stated that they
were free to belong to District No. 9 or any union and "did
have a right to representation." He also said they could
"not select a union." Then some employees asked Slosberg
questions concerning grievances. To them he answered
that they could come to him about such matters but he
preferred that "it went through channels, Mr. Svoboda and
Mr. Gendece first." Slosberg also answered questions put
to him about the insurance and pension benefits.
The next day, January 4, Plant Superintendent Gendece
spoke to the mold shop employees in a group. He told
them that since no one had submitted any proposals on
behalf of such employees he suggested that "Bobby's," i.e.,
Slosberg's, offer was a fair one. This offer comprised a 30-
cent-an-hour increase in pay and increased insurance and
pension benefits. Becquett, Puglisi, and Schmaltz said they
would like to receive "more money." Following this
Gendece inquired whether any of the men had any
grievances. Some asserted that they had and made
"demands." Finally, Gendece insisted that if the mold shop
employees "got too high . . . a rate" Respondent would
replace them with machinists to do the work.
Later that day, January 4, Gendece again spoke to the
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mold shop employees, this time informing them that
"somebody has to go in and talk to Bobby [Slosberg].
Somebody has to represent the people." Becquett replied
that he would not have anything to do with such
representation. At this point Gendece said to employees
Stafford and Puglisi that "someone would have to go in
and talk to Mr. Slosberg." Puglisi responded that he
"would go in, but strictly for" himself. Soon thereafter
employees Schmaltz, Stafford, Puglisi, and Tambunno
"headed for the office" of Slosberg, but no employees
commented on this.
A conspectus of the testimony of Edward Cover, a
machinist in Respondent's mold making shop, is set forth
at this point. On January 3, 1973, Mold Shop Foreman
Svoboda told Cover that District No. 9 of the Machinists
Union had withdrawn its RC petition, and that, as a
consequence, Svoboda was free to talk to the employees.
Continuing, Svoboda commented that "if the union gets in
we will all not be working here. Possibly you will . . . I
won't, myself . . . because Bobby Slosberg doesn't care
where he gets his molds made."
Later that day Vice President Slosberg spoke to the
assembled moldmaking shop employees. Among other
things he described to them the enhanced benefits they
would receive from the Company's improved hospitaliza-
tion and pension programs. Plant Superintendent Gendece
then told the men that if they harbored any grievances they
should "consult with him first" concerning them "and then
go up the ladder . . . in the office" of Vice President
Slosberg. Finally, Gendece closed by saying "Let's get
together and get this settled because Bobby [Slosberg] has
to leave town in a few days."
Gendece again spoke to the assembled mold shop
employees the next day, January 4. On this occasion he
announced that Slosberg offered to give a 30-cent-an-hour
raise and requested the men to "get together and settle
[this] before Bobby [Slosberg] had to leave town." Then
Gendece asked the men to select a committee to call on
Slosberg. Puglisi stated he would see Slosberg for himself
but not as a member of a committee. Later that afternoon
Cover observed employees Puglisi, Tambunno, and
Schmaltz proceed "towards the office" of Slosberg.
Another meeting of the moldmaking shop men was
called by Gendece. Addressing them he requested that they
vote on Slosberg's offer of a 30-cent-an-hour augment in
wages. A vote was then taken and it resulted in a decision
to accept said offer. This increase was reflected in Cover's
next paycheck.
Another witness for the General Counsel is James Payne,
a moldmaker in the machine shop, also known as the mold
shop or toolroom, of Respondent. His testimony may be
adequately condensed as follows. On January 3, 1973,
Mold Shop Foreman William Svoboda told Payne that
Respondent's vice president, Slosberg, was disappointed
that the mold shop employees "didn't come to him
[Slosberg] first," but that "Slosberg didn't care where he
got molds made." Svoboda also mentioned that District
No. 9 had withdrawn its RC petition. Payne testified it was
not unusual for Respondent to have molds made else-
where.
Later that day Slosberg addressed the mold shop
employees. Mold Shop Foreman Svoboda and Plant
Superintendent Gendece were also present. After relating
that District No. 9 of the Machinists Union had withdrawn
its RC petition he declared that he would not pay a
"fantastic price to keep the union out." He also assured the
men that they were free to have a union or none and that
he could not stop them from getting one if they so desired.
In addition he told them he would be willing to deal with
them individually or with their committee. Next he
announced that the Company's pension and hospitaliza-
tion plans would provide for increased benefits and
described such increases. Then Gendece suggested that the
employees form a committee to make known to Slosberg
"what they wanted."
The next day, January 4, Gendece addressed the mold
shop employees. Foreman Svoboda also attended on this
occasion. Although Gendece notified the employees that
Slosberg would offer them a 30-cent-an-hour raise, "the
men didn't seem to be satisfied with this . . . and some of
them wanted 35 cents or more on the hour," according to
Payne. Continuing, Gendece suggested that the employees
"get a committee together and present it to Mr. Slosberg if
we wanted more money, because he [Gendece] couldn't do
it." Employee Stafford and some others then said that each
"would go in" for himself, and employee Erickson stated
that Stafford was authorized to speak for him. (Sometime
later Payne and the other mold shop employees received a
wage increase.) Finally, Gendece stated that if he had to
pay the men the same wage rate as a machinist he would
hire machinists to replace them because machinists could
do other work.
Leroy Schmaltz, a moldmaker in Respondent's machine
shop, and the General Counsel's concluding witness,
testified substantially as follows. On January 3, 1973, mold
shop foreman William Svoboda spoke to Schmaltz and
employee Payne. After telling them that District No. 9 had
rescinded its RC petition he "mentioned something about
$11 union dues" and that the petition could be "refiled at a
later date."
Early in the afternoon of said January 3 Vice President
Slosberg spoke to the mold shop employees, including
Schmaltz. Plant Superintendent Gendece and Mold Shop
Foreman Svoboda also attended this meeting. After
making known to them that District No. 9 had withdrawn
its RC petition, Slosberg observed that he "realized that
there had been some cards signed to take a vote on having
District 9 represent" the employees. Then he "emphasized
the fact" that employees had the right to be represented by
a union; "his attorneys were not adviseable on this"; and
the RC petition could be refiled. Following this he
described the Company's enhanced insurance benefits and
improvements in the retirement plan. Slosberg concluded
by assuring them that they could always "approach" him
with their grievances "but take it through a committee and
use your foreman and your supervisor approach."
The ensuing day, January 4, Plant Superintendent
Gendece spoke to the mold shop employees, one of whom
was Schmaltz. Also attending was Mold Shop Foreman
Svoboda. Gendece "talked about" a 30-cent-an-hour raise
in pay which he claimed "was under the 5.5 wage rate."
When the men expressed dissatisfaction with this "offer,"
MISSOURI HEEL CO.
Gendece advised them to see Slosberg if they sought a
larger increase. Thereupon employees Schmaltz, Puglisi,
and Stafford "went towards Slosberg's office ... on the
way Tambunno came in."
On January 5 Schmaltz, accompanied by employee
Pughsi, went to Slosberg's office. There they met Slosberg
and Plant Superintendent Gendece. Soon Schmaltz and
Puglisi were "put on a telephone to listen to Mr.
Tambunno agree to what the wage agreement was." Then
Slosberg asked Schmaltz and Pughsi to sign some docu-
ment for his and Gendece's "record." Schmaltz "signed
three of them." Schmaltz characterized said document as
"a policy statement on what the whole issue was all about,
the hospitalization, the wages . . . it was the statement
which contained improvements and benefits to be given
the group." Slosberg had signed it ahead of Schmaltz.
B. Respondent's Defense
Robert Slosberg is president and treasurer of Ripley
Industries, Inc. A division of said Ripley is Missouri Heel
Company (the Respondent herein). It is alleged in the
complaint, and the answer admits, that Slosberg is vice
president of Respondent. An adequate abridgment of his
testimony follows. Respondent's "Statement of Policy of
Mold Making Shop" for the period 1970 - 1971 expired the
first Monday of November 1971. Thereafter "the employ-
ees felt that they had no basic room for negotiations .. .
due to the wage-price controls that were in effect at the
time . . . and could not get a committee together, did not
want a committee." Respondent also felt there was no need
for negotiations for a wage increase "because of the
limitations of the wage-price controls." However, "all
employees were talked to" and were requested to "sign and
acknowledge" a new "statement of policy" because of a
change in dates and time length of "contract" (normally 12
months but now a 13-1/2 month "contract").
The new mold shop contract was executed for 13-1/2
months to expire on the anniversary date of the existing
pension and health benefits and the expiration date of the
Boot and Shoe Workers Union contract. Said benefits were
negotiated with the Boot and Shoe Workers Union and
were incorporated into the contract with it. Employees in
the mold shop were then asked to sign the new mold shop
"contract" which is designated as "Statement of Policy of
Mold Making Shop." (See Joint Exh. 5.) Sixteen employees
did sign it. This occurred after District No. 9 of the
Machinists had withdrawn its RC petition.
Further, Slosberg denied that, when he spoke to mold
shop employees on January 3, 1973, that he told them that
the RC petition which had been withdrawn could be
"resubmitted" later. But he acknowledged that he in-
formed the employees that said petition had been with-
drawn "without prejudice." He added that he also told
them that "they still had a right to representation by a
labor union"; that he was not going to deny them that
right; and they could "elect" not to have a union.
Additionally, he denies that at said meeting he stated that
"The question is what it would take to keep the union out,
but I am not going to say that." Rather, he claims that he
told them, "I have lived with unions and I have lived
without unions and I have no objection to them."
489
Although he denies that he requested the employees on this
occasion to "get a committee together and come in to see
me," he admits that he told them that he was willing "to
meet with them in any way they so wished and if they
wished it without union representation [he] would meet
with them individually , a committee as a whole, or a
committee representing the employees as we had in the
past ." Moreover , Slosberg insisted that neither Plant
Superintendent Gendece nor mold shop foreman Svoboda
said anything at this meeting on January 3. Continuing,
Slosberg denied that at said meeting he remarked that he
"would not pay a fantastic price to keep the union out, or
words to that effect ." Then Slosberg pointed out that
Respondent has recognized and bargained with Boot and
Shoe Workers , AFL-CIO, since 1948 or 1950 for all
employees at the plant other than those in the mold shop.
Slosberg 's version of what occurred on January 5 is as
follows. Having with him "multiple copies of the statement
for signature ," he asked , without making any comments to
them , employees Puglisi and Schmaltz "to read and
approve ." Immediately thereafter Slosberg "signed and
passed them to Mr . Schmaltz and Mr. Puglisi for their
signatures ." These two employees did sign without uttering
any statements to Slosberg.
Respondent's superintendent, Carl L . Gendece , testified
substantially as follows. At a meeting held on January 4,
1973, for the mold making shop employees, he told them
that he was authorized to proffer them an increase in pay
of 30 cents an hour, but that if they desired a larger
amount than that they would have to seek it from Vice
President Slosberg . However he also pointed out to them,
"It is obvious we can 't all go in . Who will go in and talk to
Mr. Slosberg?" Thereupon employee Schmaltz stated he
"would go in and speak to Mr . Slosberg," and employee
Payne said that Schmaltz "could talk for him." When
employee Stafford said he "would go in" employees
Erickson and Cover stated that Stafford could speak for
them . Then employee Puglisi said he "would go in."
At this point Gendece received a telephone call which
took him away from the meeting for between 5 and 10
minutes. (On rebuttal employee Becquett testified for the
General Counsel "that at no time did Mr . Gendece answer
or have any telephone conversation " during this meeting.
Rather, Becquett insisted that "after the first meeting . . . I
saw [Gendece] leave the shop [for] . . . five to seven
minutes .") When he returned to the employees he asked
them , "Are you ready to go?" Then Gendece , Schmaltz,
Puglisi , and Stafford walked towards Slosberg 's office.
Soon Tamburino approached Gendece and asked for
permission to "go in and talk for the night shift." But the
latter replied that he "had no authority, it would be up to
the men if they wanted [Tambunno ] to represent them."
Shortly after this Gendece, Schmaltz , Stafford , and Pughsi
entered Slosberg's office, and about 3 minutes later
Tambunno joined them there.
Gendece denies that on January 5 he told Puglisi that
Tamburino was on the telephone or let Puglisi talk to
Tambunno on the telephone. In fact Gendece never spoke
to anyone on the night shift about "the negotiations or a
vote " And Gendece denies (a) that he called Don Shipp
on January 5 concerning "some problem about the vote,"
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (b) that he said he would call the night shift to
"explain the settlement or something to that effect."
Gendece admits that on January 10 (but not earlier in
January) he discussed with employee Carrigan, in the
presence of Foreman Svoboda, increases for Carrigan
every month and a half until July. He also admits that on
January 4 he told Carrigan that he "wouldn't pay a certain
amount, but could pay some other rate," and that if he had
to pay mold changers a machinists' wages he would rather
have machinists, so that when mold work was slack he
could assign the machinists to perform tooling work. (Mold
changers are rated, according to Gendece, at a lower
"skilled classification" than machinists.) But he denies that
he warned Carrigan that if the Union got in Gendece
would be forced to eliminate Carrigan's job because
Gendece would not pay a ridiculous amount in wages.
Further, Gendece denies that he held two meetings of
employees on January 4, claiming there was only one; he
did not address the employees after the telephone call on
January 4; neither on January 5 or any other day did he
ask the first shift in the mold shop to vote on Slosberg's
offer of a 30-cent-an-hour increase in wages; at the
meeting of January 3 Slosberg, but not he, spoke to the
assembled employees; and he was not present in Slosberg's
office when the employees came to an agreement on a
wage and benefits increase.
Concluding his testimony, Gendece stated that when
Schmaltz, Stafford, Puglisi, and Tamburino were in
Slosberg's office, as above mentioned, Slosberg agreed to
give them 5 cents an hour in addition to the 30 cents
already tendered to them, at the end of 2 months, but that
Tamburmo insisted it would have to be voted on by the
men. On this occasion Stafford commented that if he had
known "it had to be taken back for a vote" he "wouldn't
have come in." Slosberg replied that it was "perfectly all
right" for the employees in his office "to take it back to the
men to do what they wished on it. They had plenty of time
to do it."
C. Concluding Findings and Discussion
In arriving at the findings made below I have been
guided by the following well-established principles of law.
They are so basic that citation of authority thereon would
be superfluous. (a) The burden of proving the allegations
of the complaint rests upon the General Counsel, so that
the Respondent is not obliged to disprove any of said
averments. (b) The noncrediting of some of Respondent's
evidence, or the failure of Respondent to establish one or
more of its defenses, does not amount to affirmative
evidence which will contribute towards sustaining the
General Counsel's case. Such so-called "negative evidence"
cannot supply the proof necessary to establish the
allegations of the complaint.
From 1961 to 1971 Respondent's mold shop employees
were represented by their own committee, known as the
Mold Making Shop Committee. Annually said Committee
negotiated collective-bargaining contracts, designated as
Statements of Policy, with Respondent. (See Joint Exh. 4
and pp. 14-15 of the tr.) In the fall of 1971 the employees
terminated said Committee because they lost interest in it,
and Respondent then entered into negotiations with the
mold shop employees on an individual basis. (See Joint
Exh. 5.) In late 1972 District No. 9, the Charging Party
herein, instituted a campaign to organize said mold making
shop and on December 20 of the same year filed an RC
petition. (See Joint Exh. 1.) Said petition was withdrawn on
December 29. (See Joint Exh. 2.) A new petition was filed
on January 4, 1973, and was received by Respondent the
next day. (See Joint Exh. 3.) Certain conduct of Respon-
dent in early January 1973 is alleged to constitute unfair
labor practices.
1. Threatening employees with loss of
employment
On January 3, 1973, Mold Shop Foreman Svoboda told
employee Cover "if the union gets in we will not all be
working here. Possibly you will. I won't myself .. .
because Bobby Slosberg doesn't care where he gets his
molds made." I find this is a threat to discharge employees,
in order to discourage interest in or support of District No.
9, forbidden by Section 8(a)(1) of the Act. The coercive
characteristic of this threat is not neutralized by the fact,
which I find, that Slosberg at times in the past did
subcontract some of the making of molds to outsiders. On
the same day Svoboda told employee Payne that Vice
President Slosberg was disappointed that the mold shop
employees hadn't come to Slosberg first, and that Slosberg
didn't care where he had his molds made. I find this is a
veiled threat to cause employees loss of work in order to
discourage support or interest in unionism and, as such,
violates Section 8(a)(l) of the Act. And at the meeting of
January 4 Superintendent Gendece announced that if the
wages of the mold shop employees "got too high"
Respondent would replace them with machinists to do the
work. Gendece's contrary testimony is not credited. I find
that this is a threat to discharge mold shop employees if
they insisted on having a union to obtain higher wages for
them, and that it violates Section 8(a)(1) of the Act.
2. Offers and promises of benefits
On January 3, 1973, Slosberg told mold shop employees
that District No. 9 had withdrawn its RC petition and that
said Union might refile said petition. He also added that "I
guess the thing to say would be what it would take to keep
the union out" and that he was not going to pay a fantastic
price to keep the Union out. Testimony of Slosberg
inconsistent with the above is not credited. But I find that
said statements do not contain a promise or offer of benefit
and, therefore . do not transgress the Act.
On January 5 Foreman Svoboda promised employee
Carrigan a raise "around contract time." Upon Carrigan's
mentioning that a union would aid him in obtaining a raise
Svoboda rejoined that a union would not help him to
qualify for a raise. Later that day Superintendent Gendece
granted Carrigan a 15-cent-an-hour raise every 45 days
until July, but added that if a union got in he would be
obliged to eliminate Carrigan's classification because
Gendece could not pay a ridiculous salary. I credit
Carrigan on this aspect of the case. And I find that said
statements by Svoboda and Gendece amount to an
unlawful promise (as to Svoboda) and a grant (as to
MISSOURI HEEL CO.
Gendece) of a benefit and also (as to both) a threat of loss
of employment by Carrigan if a union got in.
In this January 3 speech Slosberg also explained the
automatic benefits to which they were entitled; i.e., they
would receive the same benefits , such as life insurance,
medical insurance , and pensions , negotiated for the
remainder of the plant . In effect he was informing the mold
shop employees that he was offering them benefits without
the need of a union to negotiate for such on their behalf. I
find that such offer of benefits , in view of the fact that
District No. 9 was contemporaneously conducting its
organizational drive , violates Section 8 (a)(1) of the Act.
On January 4 Superintendent Carl Gendece told the
mold shop employees that Respondent was offering them a
raise of 30 cents an hour and augmented insurance
benefits . At the same time Gendece asked them to mention
their grievances . Since this occurred at a time when District
No. 9 was attempting to organize the mold shop employ-
ees, I find that it constituted a promise of benefits tending
to undermine that union, and is forbidden by Section
8(a)(1) of the Act.
3. Grants of benefits
When employees Schmaltz, Stafford, Puglisi, and Tam-
burino, following Gendece's attempt to induce them to act
as a committee for the mold shop employees , called on
Vice President Slosberg, the latter gave the employees an
additional 5 cents an hour for 2 months over and above the
30 cents offered to them by Gendece. Also many
employees received a 30-cent-an-hour raise. This is a grant
of benefits to discourage interest in a union and violates
Section 8 (a)(1) of the Act, and I so find.
4. Urging employees to form their own committee
When he spoke to the mold shop employees on January
3, 1973, Vice President Slosberg, among other things, told
them, "If you would like to get a committee together like
we have done in the past, come up with some proposals, we
would be willing to listen to you." It is true that in this
same speech Slosberg also stated that they were free to
belong to a union and "did have a right to representation."
But I find that by urging them to deal with him through a
committee "like we have done in the past," when coupled
with his statements at the same time concerning improved
insurance and pension benefits, persuades me, and I find,
that he was attempting to revive the Committee and sought
to deter their interest in a union . I further find that this
utterance contravenes Section 8(a)(1) of the Act.
At the meeting of January 4 Superintendent Gendece
told the employees that if 30-cent-an-hour increase was not
adequate that the employees would have to seek a greater
amount from Vice President Slosberg. But Gendece
insisted that "when these fellows go in. they are going to
represent all of you . . . somebody has to represent the
people." Gendece also asked the men to select a committee
to call on Slosberg if they wanted more money because
Gendece was powerless to offer them more than an
increase of 30 cents an hour . Patently Gendece was
interfering with the statutory right of the employees to
have a union represent them by practically forcing them to
491
reactivate the old Committee , and I so find . I further find
that this transgresses Section 8 (a)(1) of the Act.
On the morning of January 5 Gendece requested the
mold shop employees to take a vote on Slosberg 's offer of a
30-cent-an-hour increase in wages . The General Counsel
contends this request for a vote "unlawfully urged the
employees to bargain through the Committee and abandon
the Union." (See p . 7 of his br.) But I find that this request
does not have the purpose suggested by the General
Counsel . However, I do find the 30-cent offer, as noted
elsewhere herein , is a promise of benefit to sway employees
against a union , and, as such , violates Section 8(a)(1) of the
Act.
5. Encouraging or compelling employees to sign a
collective-bargaining agreement
On January 5 employees Puglisi and Schmaltz were sent
to Vice President Slosberg's office. While in the office
Slosberg told them that the insurance benefits had been
improved and had Puglisi telephone the insurance compa-
ny to ascertain what they were. Then Slosberg asked these
two employees to sign the new statement of policy.
Schmaltz complied but Puglisi balked . Then Puglisi signed
when Gendece , the plant superintendent , who was also
present , insisted the document was for Slosberg's "personal
files." Said statement of policy was in fact a collective-
bargaining agreement . (See Joint Exh. 5.)
Initially I find that neither Schmaltz nor Puglisi was
compelled to sign this statement of policy but that each
signed voluntarily . It is true , and I find , not crediting any
evidence inconsistent with such finding, that Puglisi was
induced to sign because it was misrepresented to him that
this instrument was for Slosberg 's personal files . However,
by resorting to such misrepresentation Respondent at least
interfered with Puglisi 's right to decide whether he wished
to be represented by a union to negotiate a collective-
bargaining contract for him . Hence I find that by this
action Respondent violated Section 8(a)(1) of the Act.
6. 8(a)(2) violations
Although the Committee functioned from 1961 to the fall
of 1971, nothing in the record warrants the conclusion that
Respondent either dominated or assisted it during this
period . And I further find that the Committee did not
operate after the fall of 1971 because the employees felt it
was not needed in view of the wage freeze . Yet the General
Counsel argues that, since the record is silent "that the
Respondent specifically communicated this position to the
employees or that the employees told Respondent that this
was their feeling ," that this , coupled with the evidence
recited above in this Decision , "establishes that the
Respondent by its conduct controlled this Committee."
(See pp. II and 12 of the G.C. br.) Insofar as this
contention is addressed to conduct of the employer more
than 6 months before the filing of the charge on January
17, 1973, it is barred from consideration by the statute of
limitations . See Section 10(b) of the Act.
To the extent that said contention is based on the
conduct of the Respondent occurring during the 6 months
immediately preceding January 17, 1973, 1 find that such
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct is not clothed with those qualities amounting to
control or domination of the Committee. Hence I find that
Respondent has not violated Section 8(a)(2) of the Act.
Nevertheless I have found elsewhere above that some of
such conduct was condemned by Section 8(a)(1) of the
Act. On this issue I find that Respondent did not on
January 4, 1973, as urged by the General Counsel on pp. 11
and 12 of his brief, choose "the officers and representatives
of this Committee . . . then . . . the Respondent . . . told
the other employees that this chosen Committee or group
of representatives would in fact represent all of the mold
shop employees." Rather I find that Respondent did no
more than suggest that the employees select a small group
to represent them but that the employees expressly rejected
this proposal. It is my opinion, and I find, that this
suggestion contravenes Section 8(a)(1) of the Act, but,
because it neither assists nor dominates the Committee, it
does not compass results transgressing Section 8(a)(2) of
the Act. In my opinion, University of Chicago Library, 205
NLRB No. 44, does not require a finding that Section
8(a)(2) was violated. Accordingly, I recommend that this
branch of the complaint should be dismissed for failure to
prove it.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with its operation 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 of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and that it take
specific action, as set forth below, designed to effectuate
the policies of the Act. Such affirmative action consists of
the posting of an appropriate notice the form of which is
related in the Appendix, infra. As the record does not
disclose that Respondent exhibited a general hostility to
the Act, I conclude that a broad remedial order against it is
not warranted.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. District No. 9 and the Committee each is a labor
organization within the meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2) and is engaged in commerce as defined in
Section 2(6) and (7) of the Act.
3. By (a) threatening to discharge employees and
threatening to cause them to lose work in order to
discourage interest in or support of District No. 9 or any
other union; (b) threatening to discharge employees if a
union represented them in the mold making shop; (c)
promising and also granting employees increases in wages
and other benefits in order to discourage interest in or
support of Distnct No. 9 or any other union; (d) urging
employees in the mold shop to revive the Committee in
order to discourage their interest in an outside union; (e)
misrepresenting facts to induce an employee to sign a
statement of policy which was a collective-bargaining
agreement; and (f) suggesting to moldmaking shop
employees to select a small group of such employees to
represent them rather than be represented by an outside
union; Respondent has engaged in unfair labor practices
condemned by Section 8(a)(1) of the Act.
4. The above-described unfair labor practices affect
commerce within the contemplation of Section 2(6) and (7)
of the Act.
5. Respondent has not committed any other unfair
labor practices alleged in the complaint.
[Recommended Order omitted from publication.]