Snyder Tank Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 724 (N.L.R.B. 1969)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snyder Tank Corporation and International Union,
United Automobile , Aerospace & Agricultural
Implement Workers of America, AFL-CIO.
Cases 3-CA-3101-2, 3-CA-3199, 3-CA-3431,
and 3-RC-4030
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On January 23, 1969, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor
practices and recommending 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 the Respondent had
not engaged in certain other unfair labor practices.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
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 case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered
the Trial Examiner's Decision, the exceptions
and brief, and the entire record in this case, and
hereby adopts the findings,2 conclusions,3 and
'The Respondent excepts to the Trial Examiner's credibility findings
It is the Board 's established policy, however, not to overrule a Trial
Examiners resolutions with respect to credibility unless, as it not the
case here , the preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc,
91 NLRB 544 , enfd 188 F 2d 362 (C A 3). As for the Respondent's
contention of bias and prejudice on the part of the Trial Examiner, we
have reviewed the record and find the contention to be without merit
iln essential agreement with the Trial Examiner , we conclude that
Respondent violated Sec 8(aX5) of the Act by rejecting the Union's
recognition and bargaining demand as the majority representative of its
employees in an appropriate unit, and embarking upon a campaign of
flagrant unfair labor practices, commencing almost immediately after
the organizational drive began and persisting up to and after the election,
in its effort to thwart the Union Those violations which include
interrogation of employees concerning their Union activities, warnings of
loss of benefits and of more onerous working conditions , withholding wage
increases , promises of benefits , threats of discharge and layoff, warnings
of plant closure , assisting and encouraging employees in distributing an
antiunion petition and the discharge of a leading union supporter, were
clearly designed to and did undermine the Union's support , and destroyed
the conditions necessary to the holding of a free election on the Union's
petition . We find that such conduct made the holding of a fair election in
the future unlikely . For these reasons, we conclude that, in orde to
protect the statutory rights and interests of employees and to remedy the
unfair labor practices committed , it is essential that the Respondent be
ordered to recognize and bargain with the Union as the statutory
representative of its employees for the purposes of collective bargaining
N.L R B v Gissel Packing Company, 395 U S 575
In setting aside the election , we rely on the numerous unfair labor
practices committed by Respondent Therefore, we deem it unnecessary to
recommendations of the Trial Examiner as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Snyder Tank Corporation, Buffalo, New York, its
officers, agents , successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
Delete the following language from paragraph
1(a) of the Trial Examiner's Recommended Order:
. . . bypassing the Union as bargaining
representative for the employees....
IT IS FURTHER ORDERED that the petition in Case
3-RC-4030 be and it hereby is, dismissed,
and all proceedings held in connection therewith be,
and they hereby are, vacated.
rely on the Trial Examiners further finding that Respondent's letter of
January 19 , 1967, to its employees, contained "a misstatement of material
facts" which exceeded the bounds of legitimate campaign propaganda
Chairman McCulloch and Member Brown affirm the Trial Examiner's
finding that Respondent 's January 12, 1967, letter to its employees violated
Sec 8(a)(1) of the Act See comments of the Supreme Court in Gissel
Packing Company, supra Member Zagoria would find that said letter
does not violate Sec . 8(a)(I) Chairman McCulloch and Member Zagoria
find, contrary to the Trial Examiner, that Respondent 's conducting of a
poll of its employees and publishing the results thereof together with the
memorandum comments thereon did not violate Sec 8 (a)(1) of the Act
Member Brown would affirm the Trial Examiner on this issue but would
ground his finding on interference with employees rights rather, than
the "bypassing" rationale used by the Trial Examiner
'In the absence of exceptions , we adopt, pro forma, the Trial
Examiner's dismissal of the allegation concerning President Gerald
Snyder's interrogation of employee George Glore In section III,D,2
of his Decision , the Trial Examiner inadvertently referred to certain
testimony as being that of Sebastian Ciacek whereas the record shows
that this is the testimony of Anthony Cacic Similarly , in the same
section , the Trial Examiner referred to testimony as being that of
Harold E Ivon whereas the record shows that this is the testimony of
Richard Lucas. Also, the Trial Examiner referred to Respondent's
President Gerald Snyder's speech of January 18, 1967, as being on the
day of the election whereas the record shows that the election was
conducted on January 19, 1967
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Trial Examiner: Upon a charge
filed in Case 3-CA-3101-2 on December 5, 1966, by
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, herein
called the Union or the UAW, and a charge filed by the
said Union in Case 3-CA-3199 on April 7, 1967, the
Regional Director for Region 3 of the National Labor
Relations Board, herein called the Board, issued an order
of consolidation, a consolidated amended complaint, and
notice of hearing on July 28, 1967, on behalf of the
General Counsel of the Board against Snyder Tank
Corporation, herein called the Respondent or the
Company, alleging violations of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended (29
U.S.C., Sec. 151, et seq.), herein called the Act.
177 NLRB No. 94
SNYDER TANK CORPORATION
On April 28 , 1967, the said Regional Director issued an
order directing hearing in Case 3-RC -4030 on objections
timely filed by the Union to alleged conduct of
Respondent allegedly affecting the election previously held
in said proceeding . On the same day, April 28 , 1967, the
said Regional Director , in his order of consolidation,
heretofore mentioned , ordered Case 3-RC-4030
consolidated with the other cases heretofore set forth for
purposes of hearing , ruling , and decision.
Thereafter , and while the cases above mentioned were
being heard , the Union filed a charge in Case 3 -CA-3431
on February 13, 1968 , upon which a complaint was issued
by the said Regional Director on April 9 , 1968, alleging
further violations of Section 8(a)(l) and (3) of the Act. By
order dated May 9, 1968 , the Trial Examiner in this
proceeding ordered Case 3-CA-3431 consolidated with the
other cases herein and ordered that a hearing be held
thereon.
In its duly filed answers to the foregoing complaints,
the Respondent , while admitting certain allegations of the
complaints, denied the commission of any unfair labor
practices.
Pursuant to notice , the hearing of the consolidated
cases was held before me at Buffalo , New York, on
various dates between October 18 , 1967, and May 27,
1968. All parties were represented and were afforded full
opportunity to be heard , to introduce relevant evidence, to
present oral argument , and to file briefs . Briefs were filed
by the General Counsel , the Respondent , and the
Charging Party . Upon consideration of the entire record,
including the briefs of the parties, and upon my
observation of each of the witnesses as they appeared
before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a New York corporation , maintains
its principal office and plant in the city of Buffalo, State
of New York, where it is engaged in the manufacture,
sale, and distribution of gasoline tanks and related
products . During the 12 months immediately preceding
the issuance of the complaints herein , a representative
period , the Respondent purchased , transferred, and
delivered to its plant involved herein, goods and materials
of a value in excess of $50,000, which goods and materials
were transported to said plant directly from the States of
the United States other than the State of New York.
During the same period , Respondent manufactured, sold,
and distributed from its plant involved herein products
valued in excess of $50,000, of which products of a value
in excess of $50,000 were shipped from said plant directly
to States of the United States other than the State of New
York.
It is admitted , and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find , that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
725
111. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Sometime during the month of September 1966, the
Union began an organizing campaign among the
Respondent's production and maintenance employees.
During this period of time, it solicited union authorization
cards from the employees at the plant and at meetings
held for that purpose at the union hall. After the Union
had secured what it deemed to be a majority of
authorization cards, it sent, on October 7, 1966, a letter to
the Respondent requesting recognition and bargaining.
Shortly thereafter the Union filed a petition for
representation with the Board and on October 12, 1966,
the Respondent by letter rejected the Union's request for
recognition on the ground that the Respondent did not
believe the Union had been voluntarily designated as
bargaining representative by a majority of the
Respondent's employees. Pursuant to the Union's petition
to the Board , a representation hearing was held and an
election ordered by the Regional Director. The election
was held on January 19, 1967. The results of that election
showed that a majority of the employees did not vote for
the Union. Thereafter the Union filed timely objections to
conduct which, it claimed, affected the results of the
election.
During the period from the beginning of its
organizational drive up to the election, the Union and the
Respondent waged vigorous and aggressive campaigns
marked by claims and counterclaims made in various
written communications to the Respondent's employees
and by speeches made by the Respondent's officials. The
Union and the General Counsel allege generally that the
conduct of the Respondent's officials and supervisory
personnel during this campaign period constitutes, in the
main, the basis for the charges and the objections filed
herein.
More specifically, the complaints herein allege, in
substance, that the Respondent, through its officers
and/or supervisors, unlawfully interrogated employees
concerning their union activities, created the impression of
surveillance of employees' union activities, threatened
reprisals and removal of the plant in the event of union
success, and made promises of benefit to induce
employees to reject the Union.
The complaints further allege that the Respondent
discriminatorily discharged employees Douglas Gravelle
and James Scott because of their union activity.
Additionally, the complaints allege that the Respondent
refused to bargain in good faith with the Union which, it
is alleged , is the majority representative of the
Respondent' s production and maintenance employees.
The Respondent' s answers admit the jurisdictional
allegations of the complaints but deny each and every
allegation concerning the alleged violative conduct of the
Respondent. With regard to the allegations of refusal to
bargain , the answers also allege that the Union did not
enjoy majority status among the Respondent's employees
at the time the Union made its demand for recognition.
Thus, broadly, the issues framed by the pleadings are:
1. Did the Respondent interfere with, coerce, and
threaten its employees, in the manner set forth above, in
violation of Section 8(a)(1) of the Act.
2. Did the Respondent discriminatorily discharge
employees Douglas Gravelle and James Scott because they
engaged in activities on behalf of the Union in violation of
Section 8 (a)(3) and (1) of the Act.
3. Did the Respondent refuse to bargain because it had
a good-faith doubt that the Union was majority
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the Respondent's employees in violation
of Section 8(a)(5) and (1) of the Act. In connection with
this issue, there is the further issue of whether the Union
represented a majority of the Respondent's employees in
an appropriate unit.
4. With regard to the objections to conduct affecting
the elections filed by the Union, did the foregoing
conduct, if found, constitute conduct which interfered with
the exercise of free choice by the employees participating
in the election so as to warrant setting aside the election.
B. Interference, Coercion, and Restraint
1. Interrogation
Heretofore, I have alluded to the vigorous manner in
which the Union and the Respondent pressed their
respective campaigns . Much that was said and much of
the written material circulated by each was purely factual,
but an equal quantity was accusatory and, at times,
vituperative. Each party accused the other of lack of
candidness and, indeed, of outright misrepresentation. To
say that feelings ran high would be an understatement.
Thus, in this atmosphere, marked by the hurling of verbal
brickbats, the employees of the Respondent were made
aware of the Respondent's and the Union's strong
antipathy for one another. And it was in this atomsphere,
permeated by mutual antagonism, that the events, below
described, occurred.
Dennis Gravelle worked under Night Foreman
Raymond Pajak. During the early part of the union
campaign he had several conversations with Pajak after
union meetings . These conversations took place in the
plant. During the first conversation, Pajak wanted to
know what happened at the union hall, what was said, and
what was done. There were several such conversations and
each started with Pajak's asking Gravelle what happened
at the meetings.'
Also during the time at which the Union was beginning
its campaign in the Respondent's shop, Harry Stark, a
working foreman on the day shift, had a conversation with
employee James Phillips. Stark greeted Phillips and then
asked the latter what he thought about the Union. Phillips
answered that he thought it was a good idea.'
Several days after the incident with Stark,
Plarr, a supervisor in the machine shop, had a
conversation about the Union, also with Phillips. Plarr
asked Phillips what the latter thought about the Union
and Phillips told him. This conversation occurred at
Phillips' work station.'
Sometime shortly after the cards were circulated among
the employees in the plant, Shipping Foreman Charles
Maue engaged employee Delbert M. Hinderliter in a
conversation regarding the Union. Maue came to
'From the credited testimony of Dennis Gravelle. Pajak admitted that he
might have had a conversation with Dennis Gravelle but he denied that he
asked Gravelle anything about the union meetings From my observation
of the witnesses I do not credit Pajak ' s denials
'From the credited testimony of James Phillips . Stark gave a different
version of this conversation stating that it was Phillips who asked Stark
what the latter thought about the Union I credit Phillips' version.
'As in the case of Stark , Plarr denied that he ever had a conversation.
with Phillips about the Union However , after his denial he admitted that
Phillips approached him on three or four different occasions , calling him
by his nickname "Butch ," and asking him what he thought about the
Union . According to Plarr he said that what he would answer would be his
personal opinion and as far as he was concerned they didn 't need one. I
credit the Phillips version of the conversation.
Hinderliter's work station and started the conversation.
Hinderliter told Maue that it was nobody's business about
the reason he wanted the Union, if he wanted it, and what
he wanted to do. During this conversation Maue asked
Hinderliter what the latter thought about the Union.
Maue engaged in further interrogation of employees.
Thus, around the middle of October 1966, employee
Ronald Guest went into Maue's office to obtain a
blueprint and Maue asked Guest, "How are you going to
vote for the Union?"
Guest answered that he did not know and that it was
none of Matte's affair.
About a month before the election, Maue engaged
employees Louis J. Shattuck in a conversation near
Shattuck's work station near the paint booth. Maue asked
Shattuck what the latter thought about the Union and
then asked him further how the latter was going to vote.
Shattuck answered that he would not know until he got
into the voting booth and that this was a matter for his
own selection.'
Foreman Harry Stark also engaged in further acts of
interrogation of employees. For example, Stark had a
conversation with employee Charles D. Smith about 2
weeks before the election. Stark asked Smith what the
latter thought about "this union business." Stark said that
it was a rough business and that it was not going to do
anybody any good.
In almost a like context, Stark, a couple of days before
the election, stopped at employee Richard Reiber's work
station and asked the latter how he felt about the Union.
They discussed it for a while. Reiber told Stark what he
liked about the Union and what he did not like.`
About a week before Christmas 1966, Foreman Louis
Taylor had a conversation in the lunchroom with
employee Bence. Taylor asked Bence how the latter felt
about the Union. Bence told Taylor that he did not know,
that he was not sure.7
About 3 weeks before the election Taylor engaged
employee Louis Shattuck in a conversation. Taylor came
up to Shattuck at the latter's work station and asked how
Shattuck felt about the Union.'
Taylor asked a like question of employee Karl Datzer
about 1 day before the election.'
A petition in the form of a letter to the Regional
Director of the Board dated January 27, 1967, was
circulated in the plant by employee James D. Lewis. This
petition, which was circulated after the election in the
representation proceeding, stated that the employees who
had signed the petition desired the Regional Director not
to process any further matters with regard to the UAW
'From the credited pretrial affidavit of Hinderliter, which was adopted
by Hinderliter on the witness stand Hinderliter , who had been promoted
to a supervisory position between the time of the incident and the time of
his testimony, was an apparently reluctant witness for the General Counsel
At first he was most reluctant to testify against the Respondent but after
being confronted with his pretrial affidavit he reluctantly admitted the
events set forth above . Under these circumstances I do not credit Maue's
denial of the incident.
'From the credited testimony of Guest and Shattuck
'From the credited testimony of Smith and Reiber
'From the credited testimony of Bence . Taylor denied that he ever had a
conversation concerning the Union with employee Bence I do not credit
Taylor's denial.
Taylor did not deny this conversation with Shattuck Accordingly, I
credit Shattuck ' s uncontroverted testimony.
'Although Taylor denied that he ever had any conversation with any
employees about the Union , I cannot credit this denial I do not believe
that all three employees who claimed Taylor asked them questions
regarding the Union were not truthful.
SNYDER TANK CORPORATION 727
because they felt that the UAW had lost fairly and that
the employees had voted against the Union without
coercion or any pressures being placed upon them. While
he was circulating this petition, Lewis was engaged in a
conversation with Working Foreman Plarr. At that time a
number of the employees had already signed. Plarr asked
Lewis if the latter had let everybody read the petition
including James Scott and Scott's helper. Lewis answered
that he had and that he had let everybody in the shop read
it. Then Plarr asked Lewis if Scott had signed the
petition. Lewis answered that Scott had not.'°
In a different vein, around January 1967, at the time
that the General Counsel of the Board was investigating
the charges filed in this proceeding, employee George
Glore gave an affidavit to a Board investigator. A couple
of days thereafter, Glore was summoned to the office of
Gerald Snyder, the Respondcnt's president. There Snyder
asked Glore whether the latter had talked to a man from
the Board. Glore said that he had. In that same
conversation Snyder asked Glore if the latter had asked
the Board or the Board investigator for a copy of the
statement Glore had given the investigator."
Clearly, the incidents in which the various supervisors,
as set forth above, inquired of the employees as to their
union membership, activities, desires , and preferences
constitute unlawful interrogation in violation of Section
8(a)(l) of the Act. I so find.
Likewise, Plarr's inquiry of employee Lewis as to
whether employee Scott and the latter's helper had signed
the petition to the Regional Director was an unlawful
inquiry into an employee ' s union or antiunion sympathies.
For this reason it is violative of Section 8(a)(I) of the Act.
However, the interrogation by Gerald Snyder of
employee Glore as to whether the latter had given a
statement to a Board agent and whether Glore had
obtained a copy of such statement, although not necessary
or material to the preparation of the Respondent's defense
to this proceeding, were nevertheless nonviolative, I find,
because the coercive element in this inquiry would seem to
have been very slight, if, indeed, existent at all."
2. Warnings of loss of benefits and of more onerous
working conditions
Shipping Foreman Maue engaged in other incidents in
which employees of the Respondent were involved. Thus,
approximately the time that the cards were being signed,
Maue engaged employee Stuhr in a conversation. Stuhr
was talking to his brother who is also employed in the
plant. Maue evidently overheard the conversation and
came over to where the two were talking. They had been
discussing the Union at the time and Maue said that he
had been in places before where, after the union came in,
there had been a slowdown in the amount of work
available for the employees. He said that as a result, some
of the employees had been laid off."
"From the credited testimony of Lewis. Plarr did not deny this incident
From the uncontroverted admissions of George Glore. Glore was a
most reluctant witness for the General Counsel During his testimony his
refusals to answer questions was so apparent that I declared him, upon
motion by the General Counsel , as a hostile witness. Although Glore by
the time he testified had left the Respondent ' s employ, he admitted that he
still owed a considerable sum of money to the Respondent on a loan he
had made from the Respondent.
"See Raytheon Company. 160 NLRB 1603 , 1609, In 4
"From the uncontroverted testimony of employee Stuhr Although Maue
in testifying denied or gave different versions of the many incidents in
which he was involved , he did not deny the Stuhr incident above related
Also, in the organizing period, probably a day or so
after Gerald Snyder made his first talk to the employees,
as hereinafter set forth, Maue engaged employee Walter
Baker in a conversation near Baker's work station at the
test tank. During that conversation Maue stated that if
the employees thought they had it tough at the present
time they should wait until a union got in and they'd
really have it rough. He said that the employees took too
much time off and if the employees took too much time
off the Union would get rid of them. Then he went on to
say that the employees would not be able to have any
more coffeebreaks or talk to anybody else while they were
working. He said they would have to stay right on the job
and do nothing but work.'°
About a week or two after John S. Piechocki signed his
card he had a conversation with Maue at the bullpen in
the plant. Piechocki had just arrived on the afternoon shift
and was about to change his clothes in the bullpen. Maue
approached Piechocki, looked at him, and said that he
had heard that Piechocki was pretty enthusiastic about the
Union. Piechocki admitted that he was in one way and in
another way he was not. Then Maue continued to talk
about the Union. Among the things Maue stated about
the Union was that the Union would not tolerate the time
the employees took off on the days on which they did not
call in . He also stated that if the Union came in the
employees would not have as many coffeebreaks or as
long coffeebreaks as they had at the present time in the
plant. Maue ended the conversation by stating that the
employees would have to "hustle" from the time they got
in to the time they left.15
Also, during the union campaign, Maue had a number
of conversations with employee Chad Troup, whom Maue
supervised. These conversations were almost always of the
same nature . Maue told Troup, in effect, that if the men
voted the Union in they were stupid because the hours
would be cut and there would be stricter work rules. He
said there would not be as many coffeebreaks and that the
men would not be able to talk "around" to each other.16
Maue had a number of conversations with employee
Kenneth Broadbent. These usually occurred together with
other employees in the shipping room which Maue
supervised. At one time Maue said that anyone who
supported the Union was stupid; that if they were a
minute late, if the Union came in , they would be sent
home . He also stated that there would be no talking to
anybody while in the plant. Then on another occasion
Accordingly, I credit Stuhr's testimony
"Maue, in testifying, gave a different version of the conversation. He
stated that Baker was the one who called him over and started the
conversation by asking Maue what the latter thought about the Union
After stating what he thought were the good things and the bad things
about the Union, Maue told Baker that it was the men 's responsibility to
stay on the job and not to come in late and that he didn't think the Union
would back a man if he was continuously absent or if he took five or six
coffeebreaks a day. Inasmuch as I have heretofore not credited Maue when
his versions of the incidents differed from the versions of the employees, I
do not credit him here.
"From the credited testimony of Piechock, Maue admitted that he had
a conversation with Piechocki about the Union and actually referred in his
testimony to the conversation about coffeebreaks although he did not
admit that he said there would be less coffeebreaks after the Union came
in.
"From the credited testimony of Troup Although Troup admitted on
cross-examination that he hated Maue, and I would ordinarily give little
weight to his direct examination because of this admission , nevertheless,
the incident with regard to Troup was so similar to the other incidents in
which Maue was involved , that I credit Troup' s version of the incidents
and do not credit Maue's.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maue said that if anybody wanted to pay him $60 he'd
represent them . On several occasions when a group of
employees were talking Maue would come up to them and
tell them to get back to work and then he would add that
the men wouldn 't do this if the Union was in and that if
the Union was in people could not go for coffee as much!'
As noted above , Maue had a conversation about a
month before the election with employee Louis J.
Shattuck in which he asked Shattuck how the latter was
going to vote . After Shattuck said that he would not know
until he went into the booth to vote Maue said that the
Union would hurt the place and that,they would have to
cut down to 40 hours a week . He also stated that the
employees would have to ask if they wanted to use the
bathroom and that they wouldn't get as many
coffeebreaks as they had at the present time . It should be
noted , in connection therewith , that at the time of the
conversation the employees were working 60 hours a week
and Maue's expression of cutting down time meant that
the men would be cut down to 40 hours or a regular
workweek. 1°
Also, around the first of October, Maue had a
conversation with employee Howard Stutz . Maue told
Stutz , in talking about the Union , that if the Union got in
things would be "worse" around there."
According to the testimony of several witnesses,
Foreman Harry Stark engaged in like conversations with
various employees . Thus , according to employee Anthony
Bordonaro , around Thanksgiving 1967 he had a
conversation with Stark . This conversation took place
near the coffee machine in the plant . Stark told
Bordonaro that the latter would not have coffeebreaks like
he had then if the Union were to come in. Anytime that
he wanted to get coffee he could at the present time; this
would stop according to Stark.2'
About the middle of the union campaign , employee
Fred Schmidt was standing around talking to two other
employees just before the lunch whistle blew. Stark came
up to them and told them that if the Union came in
they'd have to work "a darn sight harder" and that they
would have to work right up until the whistle blew."
Stark also had a conversation prior to the election,
perhaps 2 weeks before , with employee Charles D. Smith.
In that conversation he told Smith that the Union was a
"rough business" and it wasn ' t going to do anybody any
good . Stark said that the men would be getting pushed
around more or less if the Union instituted seniority in the
place. For instance , he told Smith that his job on the
cylinder line would not be guaranteed ; that if the Union
came in and seniority were instituted certain men in the
welding department , certain welders, would have their eye
on Smith ' s -job ; that they would be senior to Smith and
would therefore have preference."
Night Supervisor Pajak was also involved in a couple of
"From the credited testimony of Broadbent. Broadbent admitted he was
not on very good terms with Maue. However, because of the nature of the
conversations and because of its similarity to other conversations with
other employees I credit Broadbent's version.
"From the credited testimony of Louis J Shattuck whom I have
credited over Maue heretofore.
"From the credited testimony of Stutz
"From the uncontroverted testimony of Bordonaro. Stark did not testify
as to the Bordonaro incident
"From the credited testimony of Schmidt. Although Stark denied that
he ever had a conversation about the Union at any time with Schmidt, I
do not credit Stark' s denial.
"I credit the testimony of Charles Smith as against the bare denial of
Stark that he ever had a conversation with Smith about the Union
incidents. After the first meeting of the Union, Pajak told
Dennis Gravelle that if the Union got in the employees
would have to stay at their machines the full 10 hours of
the work session with no walking around "or anything of
that sort." 31
Pajak supervised employee Gary Scherff in the back
shop at night. Scherff's work was performed on a punch.
Pajak told Scherff that if the Union came in the punch
would be humming all the time and there would be work
there all the time. He further told Scherff that the latter
would not be running to the coffee machine for coffee and
that he would do nothing except work ; nor would there be
any talking to anybody else and all the employees would
work a lot harder.
On another occasion, about a month or two before the
election, Scherff had a further conversation with Pajak in
which Scherff asked Pajak if the latter had heard anything
about Scherff's being promoted to the position of tester.
Pajak answered that if the Union got in Scherff s chances
of being promoted to a tester would not be too good. As a
matter of fact Pajak went so far as to say that if a union
got in he did not think Scherff would be placed in the
position of tester . This was so, according to Pajak,
because Scherff was not employed by the Respondent long
enough to overcome the seniority claims of employees
who were there longer than Scherff . Pajak further said
that if the Union did not make it Scherff s chances of
becoming a tester would be much greater since the
Respondent would be giving jobs to the employees whom
management wanted to fill the jobs rather than those who
merely had seniority, the way the Union would want the
jobs to be assigned."
At the beginning of the Union' s campaign,
approximately at the time that Gerald Snyder gave his
first speech to the employees , Foreman Hugh Salsbury
had a conversation with employee Joseph Bach. This took
place at Bach's work station on the terne plate line.
During this conversation Salsbury mentioned several times
that if the Union were to get into the plant the chances
were that Bach would be bumped off the terne plate by
men with more seniority . Also, around the same time
Bach had a further conversation with Hugh Salsbury. This
occurred when all of the men were standing around
talking and Salsbury told them that if the Union were to
get in there would not be as many coffeebreaks as the
men were taking at the present time. Salsbury also told
them that they would be working harder."
Early in the campaign, Supervisor Donald Smith had a
conversation with employee Robert Fries . They were
talking about how permissive the Respondent had been
with regard to allowing people to come in late and taking
days off whenever they felt like it. Smith then said that
once the Union would come in this freedom probably
would no longer exist . He added that employees would not
be able to come in late or take a day off whenever they
felt like it without getting into trouble . This conversation
occurred in the machine shop where both Smith and Fries
worked. 26
"From credited testimony of Dennis Gravelle. Pajak admitted that he
might have had a conversation with Gravelle but he did not remember
having any concerning the Union.
"From the credited testimony of Gary Scherff . Pajak admitted that he
had a conversation about the Union with employee Scherff. However, he
could not give the specifications of that conversation . The only thing that
he denied was that he started the conversation with Scherff.
"From the uncontroverted , credited testimony of Bach . Salsbury did not
testify.
"From the uncontroverted , credited testimony of Fries. Smith did not
testify.
11
SNYDER TANK CORPORATION 729
Early in the campaign Plant Superintendent Herman
Zimmel had a conversation with employee James W.
Phillips . In that conversation , Zimmel told Phillips that if
the Union got in the employees would not be able to talk
to him, they would have to go through the Union, and
that this would cut out all friendship."
About a week to a week and a half after Maue spoke
to him, as set forth above, Louis J. Shattuck had a
conversation with Night Foreman Louis Taylor. This took
place near Shattuck ' s place of work in the paint booth.
Taylor came up to Shattuck and asked the latter how he
felt about the Union. Then Taylor told Shattuck that if
the Union got in the plant would go on 40 hours and he
said that although the men might think that the pay rate
would be higher it would not be , it would be the same or
perhaps even lower."
I find that all of the foregoing incidents constitute
warnings to employees that they would lose existing
employment benefits and privileges and that working
conditions would worsen if the Union came into the plant.
Such warnings constitute interference , coercion, and
restraint. Accordingly, I find that thereby the Respondent
has violated Section 8(a)(1) of the Act.
3. Threats of discharge and layoff
I have, above , referred to the incident in which Maue
told employee Stuhr and the latter ' s brother that he had
been in places before where the union had come in and
that there had been a slowdown in the amount of work.
He stated that as a result some of the men were laid off.
In addition , Maue was engaged in other incidents of like
import . Thus, a week or two after employee John
Piechocki had signed his card he had a conversation with
Maue at the bullpen in the plant . I have already set forth
part of this conversation , above , in which Maue started
the conversation by telling Piechocki that he had heard
that the latter was pretty enthusiastic about the Union.
After Piechocki admitted that he was in one way enthused
about the Union, Maue told him that if the Union got in
men with 6 months' or less seniority would be the first
ones out the door . He also told Piechocki there were some
employees in the plant who could not pass the physical.
They would be the first ones out."
I have also referred above to a conversation which
Maue had with employee Guest which occurred when
Guest came to Matte's office for a blueprint . In that
conversation , after asking Guest how the latter was going
to vote for the Union , Maue told Guest that if the Union
would come into the plant there would be strikes and
layoffs and other actions of this nature that could affect
the employee 's family."
Shortly after the beginning of the union campaign
employee James Phillips had a conversation with Maue.
This took place at Phillips' work station. Maue told
Phillips that Maue could go to Herman Zimmel and have
the employees fired if they were for the Union."
Heretofore I have referred to the incident in which
Foreman Hugh Salsbury spoke to employee Bach at the
terne plate in which Salsbury stated that if the Union got
in there would be a chance that personnel with more
seniority would "bump" the people situated, such as Bach,
out of their jobs. Bach testified that this type of
conversation occurred several times before the election.
Salsbury also spoke to employee Richard Bishop. This
was about October 31, 1966. At that time, Bishop had
completed testifying for the Union in the representation
case. Salsbury said that Bishop had lied about him and
had jeopardized Salsbury's family. Salsbury said that he
was going to get even with Bishop . He told Bishop that
this was not a threat , it was a promise. 3l
During the Union's organizational campaign employee
Joseph Bach had a conversation with Superintendent
Herman Zimmel. Zimmel told Bach that if the Union
came in Bach's chances of working there would be
damaged and that his job would be claimed because of his
condition. Zimmel was referring to a physical condition
from which Bach suffered.33
Bach had a similar conversation with Vice President
James Snyder. This conversation took place around
Thanksgiving 1966 at the seam welder, a machine which is
used at the terne plate. During this conversation, which
concerned the Union, James Snyder said that if the shop
had been a union shop Bach would not have been able to
get work there because of his physical condition.10
Earlier in this Decision I have set forth the incident in
which Foreman Harry Stark told employee Charles Smith
that the coming of the Union was a rough business and it
was not going to do anybody any good. Stark also stated
that employees would be "getting pushed around" if the
Union instituted seniority in the plant . Stark went on to
say that certain people had their eyes on Smith's job and
that certain welders would have preference to Smith's job
as far as seniority was concerned ; that Smith's job would
not be guaranteed.
I find and conclude that the foregoing incidents
constituted threats of discharge and layoffs which threats
constitute interference , coercion, and restraint within the
meaning of, and are violative of, Section 8(a)(1) of the
Act.
4. Promises of benefits
I have referred above to the occasion approximately a
month before the election in which Night Foreman Pajak
had a conversation with employee Scherff. This
conversation pertained to Scherff' s chances of being
promoted to a tester . Pajak said that if the Union got in
Scherff' s chances of being promoted to such a position
"From the credited testimony of Phillips . Zimmel admitted that during
the union campaign he might have had a conversation with Phillips but
denied that he spoke to him about the Union. I do not credit Zimmel's
denial.
"From credited testimony of Louis J. Shattuck . I have heretofore
credited Shattuck on other matters . Taylor's denial that he ever had a
conversation with any employee concerning the Union is not credible in
view of the number of employees who testified that Taylor did have
conversations with them concerning the Union.
"From the credited testimony of Piechocki I have already credited
Piechocki ' s testimony over Maue's denials.
"From the credited testimony of Guest.
"From the credited testimony of Phillips I credit this testimony over
Maue's denial despite the fact that Phillips had a nervous breakdown.
Other aspects of Phillips' testimony are perfectly reliable and credible and
there is no reason to believe, from the record , that Phillips' testimony in
this regard is not reliable.
"From uncontroverted , credited testimony of Bishop . Salsbury did not
testify.
"From the credited testimony of Bach . Zimmel could not remember any
specific conversation he had with Joseph Bach but he testified that he
could have talked to him . He did not specifically deny what Bach had
testified to.
"From credited testimony of Bach . James Snyder did not deny this
incident.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not be too good. Pajak stated that if the Union
were selected he did not think Scherff would become a
tester. This was because Scherff s seniority was not
sufficient; that there were employees there who were older
than he was in point of time of service to the Company
who were already testing and that his seniority would not
be sufficient. Pajak further stated, however, that if the
Union did not make it Scherff s chances of becoming a
tester would be better because the Respondent was going
to start giving jobs to employees whom they wanted in the
jobs rather than those who were merely senior . Pajak said
that this was so because if the Company did not give these
jobs to their better employees, the next time the Union
made an attempt to get in the Union would make it
easily."
On January 13, 1967, Gerald J. Snyder, president of
the Respondent, sent a letter to the employees. In this
letter Snyder attempted to answer some of the questions
that had been asked him by employees at an earlier
meeting . Among the items covered in the letter about
which questions had been asked were "How does our
other benefits compare with other companies in the area?"
The letter stated that the Company had recently sent
out questionnaires to determine this and to date, out of 43
questionnaires sent out, 20 were returned. This survey
proved that in the matter of wages , insurance, and
hospitalization the Company was far superior. However,
at the end of the paragraph which contains this
information, the letter went on to say, "We have realized
that we were a little low on this [paid holidays] but had
planned on correcting it, and in the normal course of
events it will be corrected."
Because of the tenor of the letter and the circumstances
surrounding the campaign conducted by the Respondent,
the only meaning that can be given, "due course of
events" could mean , "if the Union were to be defeated."
One further incident promising benefits occurred. This
was in a speech given by Gerald Snyder on January 18,
1967. This was on the day of the election, just before the
election was held. Snyder told the employees assembled
that the election would be overwhelmingly in favor of the
Respondent. He then proceeded to tell the employees that
they would get two additional paid holidays, a
15-cent-an-hour raise, and he would see about forming a
grievance procedure or a grievance committee. Snyder
further mentioned that an annual review of wages had
been conducted by the Respondent and that the
Respondent usually gave out wages as a result of this
review. However, at the time in question , as a result of the
review they found they could give the workers a raise but
were afraid to do so because if they did so they would be
faced with unfair labor practice charges by the Union. He
then told the employees that how they voted that day
could determine their future."
The foregoing incidents are clearly examples of
promises of benefits to the employees made in order to
persuade them to drop their union affiliation and to vote
against the Union in the forthcoming election. Under
these circumstances they constitute interference, coercion,
"From credited testimony of Scherff which I have heretofore credited
over the denials of Pajak.
"From the testimony of employees Bence , Bishop , and James Scott
Although Snyder testified that he did not deviate from the written speech
on that day, which speech was introduced into evidence , I find that from
the testimony of these employees , some deviations must have been made.
Accordingly , I do not credit Snyder' s statement that the speech as written
was delivered in toto.
and restraint in violation of Section 8(a)(1) of the Act. I
so find.
5. Impression of surveillance
I have heretofore alluded to the instance during which
Shipping Foreman Maue told employee John Piechocki
that he, Maue, had heard that Piechocki was pretty
enthusiastic about the Union. The General Counsel cites
this incident as an instance of impression of surveillance.
However, inasmuch as Maue could very well have heard
that Piechocki was a strong union adherent from other
employees, I find that the incident did not clearly
constitute impression of surveillance and I will dismiss
that portion of the complaint relating thereto.
However, on October 13, 1966, the Respondent,
through President Gerald J. Snyder, sent a letter to the
employees in which it stated that the campaign of the
Union was started by a few disgruntled employees. After
stating that they were the type that were never satisfied
and citing two instances of employees who did not get
management jobs as they had hoped, the letter went on to
say that, "They didn't get the job, and now, as we
understand it, they are really working hard to try to get a
union in here. It seems strange that no union was
interested in us until this happened."
Again by letter dated October 19, 1966, Snyder again
asked the employees not to support the Union. In that
letter he stated that, "We understand that the Union has
said that an election would take place this week."
The General Counsel cites these two examples as
creating the impression of surveillance evidently relying on
the fact that Snyder at least purported to have knowledge
of matters which it could not have knowledge of without
having at least made some inquiries as to the union
activities of its employees. However, again, I conclude
that this knowledge could have come to the employer
through voluntary statements of some of the employees. I
cannot find that they necessarily created the impression of
surveillance. I will therefore dismiss entirely that
paragraph of the complaint which alleges that the
Respondent created the impression of surveillance of its
employees' union activities.
6. Warnings to close plant
Early in the union campaign , on approximately October
10, 1966, Gerald Snyder held a meeting of the employees.
At that meeting there was discussion of the fact that the
Union had been organizing the plant and Gerald Snyder
said that he was sorry to see this happen. He then went on
to ask for questions from the employees stating that he
would write them down and answer them at a later date.
The first question that was asked was asked by an
employee, James J. Scott. Scott asked what had happened
to the Respondent's Birmingham, Alabama, plant. Before
Gerald Snyder was able to answer the question James
Snyder interrupted. He said that the Alabama plant was
forced to close because of the unreasonable demands of
the Union, that the rates that they asked were so high that
the operation ceased to be profitable. Then he went on to
state that he did not want to see happen at the Buffalo
plant what had happened at the Birmingham plant."
The General Counsel insists that this statement by
Gerald Snyder constituted a threat of loss of jobs and
"From the credited testimony of a number of employees, among them
James J Scott, Dubke , Burke, and others Neither James nor Gerald
Snyder denied this occurrence
SNYDER TANK CORPORATION 731
created an impression that the inevitable effect of
unionization would be a closing down of the Buffalo plant.
However, I do not find this to be so. The mere expression
of James Snyder to the effect that he did not wish to see
the same thing happen at the Buffalo plant as happened at
the Birmingham plant falls far short of the creation of an
impression that the inevitable effect of unionization would
be plant closure.]"
However, just before the election, on January 12, 1967,
Gerald Snyder, as president of the Respondent, sent a
letter to the employees of Snyder Tank. This letter
concerned the Union's campaign promise of job security
for the employees if the Union were to be selected as their
bargaining representative. The letter termed this promise
by the Union a "cruel hoax." In the next paragraph the
letter went on to say:
One of the outstanding examples of how false this claim
is appeared in the Toledo, Ohio newspapers sometime
ago, when 6000 union members of the United Auto
Workers, at Electric Autolite lost their jobs. Why?
Simply because the company could not continue to
operate under the union contract thus forcing the
company to close down.
In another paragraph the letter stated:
Another good example is the York-Hoover Body
Corporation, in York, Pennsylvania, which was under
contract with the United Auto Workers. This Company
had been in business for over 100 years, and at one time
had over 600 employees. After many strikes, the last
one lasting 25 weeks, and with their work force down to
approximately 250 employees, they were unable to
operate profitably under the union contract and sold
out. The Company that is now operating the plant has
an average of 150 employees.
Another good example is where the "job security" of
350 union members at one of the Wilson Packing
Plants vanished in thin air when the union rejected a
company proposal to keep the plant operating.
Again, not too long ago, a union through preaching
"job security", won an election at Peerless Woolen
Mills. After the election, the union president stated:
"Job security and the uncertainty of seniority rights was
the chief reason for the union victory." This certainly
should sound familiar to you here, since it seems to be
the theme song of the union that wants your vote at the
election. But what happened to the "job security" of the
Peerless employees? The union won the election in
August and the plant was out of business in October,
and 1700 employees lost their jobs.
Another example is the famed Darlington case, where
the union won an election and the Company closed
down causing over 1000 employees the loss of their
jobs. The union filed charges against the Company, but
the Supreme Court of the United States held the
Company could close down for any reason whatsoever
so long as it was not done to "chill" union organizing
at other plants of the Company. It was later determined
by the National Labor Relations Board that it was not
done for this reason so the employees lost out.
But we don't have to look outside Buffalo to see how
phoney the sales pitch of "job security" is. You all
know what happened practically next door to us at
Penn-Dixie, and no doubt you have read recently where
the Clarence Plant of National Gypsum after being on
strike for over six months informed the union of their
plans to discontinue manufacturing operations. In
addition to these there was the close down of the
Wickwire-Spencer plant with a loss of 1500 jobs;
American Locomotive in Dunkirk with a loss of 600
jobs; Spring Perch which sold out to another company
which now operates at a limited capacity. I am also
sure that you are all aware of what happened to the
Herald-Tribune which was forced to close because of
unreasonable union demands. (Herald-Tribune, New
York City newspaper)
WHAT HAPPENED TO THE JOB SECURITY OF
ALL THESE PEOPLE? Instead of protecting them the
unions were instrumental in their being out of work -
with no jobs to go back to.
We are not saying we will go out of business. We won't
so long as we can make a reasonable profit. What we
are saying is that much bigger companies than we have
been forced out of business through excessive union
demands. When they did the employees lost their jobs.
You judge from this just how the unions can guarantee
you job security.
Then the letter states that the Respondent, not the
Union, gives job security and a successful future for
Snyder Tank and security for the employees would be
accomplished by the Company being able to continue
selling quality tanks to their customers as cheaply as the
competitors can.
While it is true that the Respondent, in the foregoing
letter, after citing all of the instances in which plants
closed down after unionization, stated that they were not
saying that they would go out of business, nevertheless the
letter created the impression of the inevitability of such if
the employee selected the Union as their bargaining agent.
These warnings of dire consequences of unionization are
not overcome by the mere statement that the Respondent
had no intention of going out of business. The inevitable
result and the inevitable effect of the letter was definitely
to create the impression that the Company might go out
of business if the Union were to come in the plant.
Accordingly, I find and conclude that the letter was a
coercive prediction that the Respondent would possibly go
out of business if the Union were to be successful in their
campaign. Such a prediction is coercive and violative of
Section 8(a)(1) of the Act. I so find.
In August 1967, employee John Bence went to Gerald
Snyder's office to find out why he did not get a merit
raise as did many of his fellow employees. Snyder told
Bence that his work was average which would normally
entitle him to a merit raise, but that he was making too
much per hour for the job he was performing. During the
conversation Bence told Snyder that he was not rebelling
against him that he only wanted to bargain with him and
Snyder replied, "well, if I have to sell this place out I will
to fight this Union." Then Bence replied in the affirmative
and said that he knew that Snyder would do that even if
the Union did get in, Snyder would still fight it. Snyder
answered "you're damn right."39
Although the foregoing conversation occurred a number
of months after the Union was defeated in the election,
the Union's battle to gain recognition was still being
pursued by the Union. Charges were pending before the
Board in the instant proceeding as were the objections to
the election. It is clear that Snyder's remarks to Bence
constituted a threat to go out of business if the fight
"See Trent Tube Company. Subsidiary of Crucible Steel Company, 147
NLRB 538, 541; Jacob Brenner Company , Inc. 160 NLRB 131, 136-137
"From the credited testimony of John Bence Snyder did not, in his
testimony, deny this conversation with John Bence
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Union made this necessary . Accordingly, I
find and conclude that this is a coercive statement in
violation of Section 8(a)(1) of the Act.
Around the first of October 1966, employee Howard
Stutz had a conversation with Shipping Foreman Maue
about the Union. During this conversation Maue told
Stutz "they'd probably shut the place down rather than
have a union.""
Sometime around the end of October, or perhaps the
beginning of November, employee John Pates had a
conversation with Maue. Maue told Pates that the
Snyders would close the doors as they did in Alabama if
the Union were to be successful in its drive."
It is clear that the conversations between Maue and
Stutz and Maue and Pates as above outlined constituted
clear predictions that the Respondent would close its
doors if the Union were to be successful . That such a
prediction is violative of the Act requires no citation. I
find, accordingly, that by these statements, Maue engaged
in interference , coercion , and restraint violative of Section
8(a)(1) of the Act.
Employees Richard R. Bishop and James J. Scott
testified that they saw on the bulletin board before the
election a newspaper clipping to the effect that the
Clarence Plant of the National Gypsum Company was
going to end production . This article stated that the plant
was closing down after a strike over terms of a new
contract. The strike lasted 6 months and resulted in an
impasse after which the plant was closing down. This
newspaper article was from the Buffalo Evening News of
January 4, 1966.
Although the General Counsel contends that this
constituted a threat to close down the Respondent's
Buffalo plant, the facility here in question , I cannot find it
to be such a threat . In the first place, the news article was
taken out of the daily paper which was circulated in the
Buffalo area in which all of the employees of the plant
both lived and worked . Therefore, there was nothing new
in this posting by the Respondent that the employees did
not already know from their reading of the local paper.
With nothing more being added , I cannot perceive that
the article, in and of itself, is a prediction that the
Respondent would close its plant. I therefore find that the
posting of this article did not violate Section 8(a)(1) of the
Act.
7. Attempt to bypass the Union
In October 1966, the Respondent conducted an opinion
poll among its employees concerning wages, hours, and
other working conditions . This poll was conducted among
both the employees on the day shift and on the night shift.
It was similar to a poll taken by the Company in 1963 at
which time the United Steelworkers were attempting to
organize the Respondent's plant."
The poll was taken by Gerald Snyder, calling the
employees to the lunchroom where the poll was conducted
by an outside firm.
The poll itself consisted of 36 multiple choice questions
concerning such items of working conditions as work
station temperature, ventilation , lighting, work space, tool
"From the credited testimony of Stutz . Inasmuch as I have not credited
Maue's other testimony, I do not credit Maue's version of the conversation
between Stutz and himself.
"From the credited testimony of Pates.
"From the credited , uncontroverted testimony of employees Bishop and
Scott.
and equipment, toilets and washrooms , lockers, lunch
area , safety program, work requirements, receipt of orders
from superiors, overtime , work planning, interruptions,
rush jobs, relations with supervisors , employee complaint
handling, profit sharing , pay and pay raises , comparison
with other companies , job security , employee welfare, and
suggestions . The multiple choices, though fitted to each
individual question , ran the gamut from the equivalent of
excellent to bad.
The results of the poll were published and compared
with the 1963 poll. With the publication to the employees,
Respondent had a comment to make as to each question
showing what the Respondent had done or planned to do
with regard to each matter in question . In addition, the
results were accompanied by a memorandum to the
employees which read as follows:
After studying the results of this poll I think you will
have to agree that contrary to what the Union is trying
to make you believe , the majority of the employees here
feel that Snyder Tank is a pretty good company to
work for. We urge you to study the results because if
you do we know you will agree with us . It also shows
there has been an improvement here since the last poll
was taken.
The above memorandum was signed by Gerald Snyder.
It should be noted in connection with this poll that
nowhere in any of the 36 questions or in the results was
the Union mentioned . Nowhere in the poll was there any
request to the employees to express their union sympathies
or desires . Nowhere in the poll was any employee asked
to identify himself or sign his name . The General Counsel
contends that the taking of the poll and the publishing of
the results thereof constitute a bypassing of the Union
and, therefore , further constitutes a violation of the Act.
However , as in so many instances in his brief , the General
Counsel fails to point out or even offer to show the
respect in which this poll constituted a bypassing and
therefore a violation of the Act. Nevertheless, I tend to
agree with the General Counsel' s contention.
The poll did not mention the Union except that
Respondent stated that despite the claims of the Union
the majority of employees thought the Respondent ' s plant
was a good place to work . This would indicate that the
purpose of the poll was not so much to inquire into the
working conditions of the employees with the thought to
improve them , but rather to show the employees that
without the Union they could express their thoughts and
their desires with regard to wages , hours, and other
working conditions and have some of their wishes granted
voluntarily by the Company without the intervention of
the Union. This is amply demonstrated by the comments
the Respondent made with regard to each of the 36
questions, in which comments it stated what it was going
to do or what it had done with regard to each of the
items. All of this had the effect and was ostensibly for the
purpose of discouraging the employees in their adherence
to the union cause . But, additionally, it constituted a
bypassing of the Union because it demonstrated to the
employees that they could get the benefits they wanted
without the assistance of the Union. At this time, the
Union was already well in the picture . It had not only
demanded recognition and bargaining but had filed a
petition for representation . The effect of the poll,
therefore , was no different than the often-experienced
situations in which an employer deals directly with his
employees once the union is in the picture.
Accordingly , and by reason of all the foregoing, I find
that by conducting the poll and publishing the results
SNYDER TANK CORPORATION 733
thereof, together with the memorandum to the employees,
the Respondent attempted to bypass the Union in
derogation of the Union's rights, and therefore violated
Section 8(a)(l) of the Act.
8. Withholding of wage increases
In the poll , taken as set forth in the section above, item
30 of the questions asked was, in effect , "Company policy
with regard to raises is - a. very good; b. okay; c. not
too good ; d. pretty bad." The results of this question
show the majority of the employees polled felt that the
wage policy was not too good or pretty bad. In its
comments on this particular question , the Respondent
posted the following:
As we have told you in the past , we make financial
reviews between November and January each year and
have granted annual wage increases . We did the same
this year and we felt that as a result we could have
satisfied everybody, however, as you all know, when a
union is trying to organize a plant, we could be charged
with an unfair labor practice if we had put the increases
and benefits into effect during this period.
In much the same manner, in his speech to the
employees on the day before the election , Gerald Snyder
stated that they had reviewed the wages of the employees
and had found that many of them had wage increases
forthcoming but that the Respondent could not give the
wage increases at that time because of the Union being in
the picture and the possibility that if the wage increase
was given the employer would be charged with an unfair
labor practice.
The test of whether conduct violates Section 8(a)(1) of
the Act is whether a reasonable tendency of an action is
to interfere with , restrain , or coerce employees in the
exercise of their Section 7 rights . Here the Respondent's
action must be judged by the manner in which it would
normally be interpreted by the employees . At the time the
poll results were published and Gerald Snyder made his
announcement in the speech to his employees the day
before the election , the employees were well informed that
the Company was hostile to the Union . In this
atmosphere , the announcement that the employees did not
get wage increases even though wage increases were due
them because the Union was in the picture and the
Respondent did not want to be charged with unfair labor
practices , had the affect upon the employees of inducing
them to believe that the wage raises were withheld because
the Union was in the picture and would not be granted
until the Union was defeated in the election . Accordingly,
the Respondent ' s actions constitute interference , coercion,
and restraint within the meaning of Section 8(a)(1) of the
Act.
9. The antiunion petition
On January 27, 1967, employee James D. Lewis drafted
and thereafter circulated a petition addressed to the
Regional Director of the Board which read as follows:
We the employees of Snyder Tank Corporation, feel
that we had a democratic election on January 19, 1967
and now we have been told that the U.A.W. union has
asked to represent us even though they lost the
election. We want you to know that we have been told
of all the objections and they are not the truth . None of
us were promised or forced by the company in any way.
We do not feel that the election should be thrown out.
They lost and lost fair.
Some of us who have signed this may have voted for
the company; some of us may have voted for the union;
and some of us may have signed union cards for one
reason or another.
We want you to know that those of us who have
signed union cards and who have signed this letter,
want to have our cards returned to us.
Sincerely,
The foregoing petition was signed by many of the
employees. Not a few of the employees who signed were
among the employees who signed union authorization
cards.
According to Lewis, he approached James Snyder; vice
president of the Respondent, and asked if it would be all
right for Lewis to write up a petition and send it around.
Snyder answered that it wasn't up to him, it was up to
Lewis. After speaking to Snyder, Lewis went home and
wrote up the petition which was typed by Lewis' wife's
cousin . She was not employed by the Respondent. Lewis
stated on the witness stand that Snyder gave him some
advice as to what to do. Lewis further testified, without
contradiction, that since there was not enough room on
the first page of the petition a second petition was made
up in the Company's office. Lewis asked Snyder about it
and asked him if he could use the machine to make a
photostat of the original so that the second copy would be
an exact duplicate of the first. This was not during
working hours. It was after working hours and one of the
girls in the office evidently operated the machine. After
the petition was signed by the various employees, Snyder
told Lewis where to send the petition. Lewis further
testified that Snyder told Lewis that the latter could not
circulate the petition around the plant on company time.
While Lewis was circulating the petition to the
employees on the terne plate he told the employees to
read the petition, asked them to sign if they wanted to and
explained that they did not have to sign if they did not
want to. At that time Foreman Hugh Salsbury stated to
the employees present to "make sure you know what you
are reading before you sign it.""'
James Scott, a former employee, testified that he was
working at his machine when he first saw the petition. It
was in the possession of James Lewis who was circulating
the petition during working hours. When Scott first
noticed Lewis he saw the latter coming up the aisle and
stopping with a sheet at each person working along the
aisle of the back shop. Finally Lewis arrived at Scott's
station and asked Scott if the latter wanted to see it. Scott
read it and told Lewis that he did not want to sign it. At
the same time Scott saw both Foreman Plarr and
Superintendent Zimmel. Plarr was at his desk in the shop
and Zimmel was following Lewis up the aisle . He stayed
behind Lewis during the entire time that Lewis was
circulating the petition, watching Lewis circulate the
petition, and asking the employees to sign. Scott
estimated that Zimmel was between approximately 25 to
30 feet from Lewis all the time the latter was circulating
the petition. Plarr sat at his desk and did nothing
although he watched Lewis."
Apparently employee Glore was also involved in the
petition movement. At that time, Glore asked Zimmel
about the petition that he, Glore, and his fellow worker
(evidently Lewis) were thinking about getting up. Zimmel
said that if the employees signed the petition and there
"All of the foregoing from the uncontroverted testimony of Lewis.
"From the uncontroverted testimony of James J. Scott.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were enough signatures on it, it might help kill the charges
of an unfair labor election and make the election legal."
A couple of days after Lewis prepared the petition and
after a number of employees had signed it Foreman Plarr
engaged Lewis in a conversation. Plarr asked Lewis if the
latter had let everyone read the petition including Scott
and Scott's helper. Lewis answered yes that he had let
everybody read it. Then Plarr asked if Scott had signed
the petition. Lewis answered that he had not."
While he was circulating the petition to the employees
on the terne plate Lewis was approached by Foreman
Hugh Salsbury. Salsbury stated to the employees that
they should make sure what they were reading before they
signed the petition. At another time when Lewis was
circulating the petition, employee Joseph Bach was
approached by Lewis. Foreman Salsbury told Bach that
he would not sign it if he were Bach because he did not
know what he was reading. Then Salsbury read the
petition. All of this was during working time."
While it cannot be concluded from the foregoing that
the Respondent actually sponsored the petition,
nevertheless, it did, to a degree, assist in the preparation
in the advice given by James Snyder and in his giving
permission to use the office machine of Respondent to
prepare the copy for the additional signatures.
Additionally, it is apparent that though Snyder did tell
Lewis not to circulate the petition on company time,
condonation of circulation of the petition was given by
permitting circulation during working hours in the
presence of various foremen and Superintendent Zimmel
who followed Lewis as the latter solicited employees at
their work stations. Moreover, Zimmel's statement to the
effect that the petition might overcome the effect of the
union-filed objections, constituted encouragement to
proceed with the drafting and circulation of the petition.
I conclude that by these actions and by this
demonstrated permissiveness the Respondent gave the
impression that the petition was being circulated with its
approval. This constituted interference in violation of
Section 8(a)(1) of the Act."
10. Interference with Board ' s investigative processes
Shortly after the Board began investigating the charges
filed in the present proceeding, letters were sent by the
Board's investigator to the employees in the plant. A
number of them evidently told Gerald Snyder about the
receipt of these letters and, at a meeting, Snyder told the
men assembled that the letter they received from the
Board was not a subpena and that they could go if they
wanted to and that they did not have to go in response to
the letter if they did not want to."
About the same time, Gerald Snyder called a meeting
of the employees. He said that he had received a letter
from the National Labor Relations Board to the effect
that there was objections to election hearing being held
and that there were charges filed on the election. He
mentioned that he had talked to his counsel by phone and
he said that many of the employees would be called upon
to give testimony. He said that in response to the letters
the employees didn't have to go, that nobody could force
them to go, but if they did go to tell the truth.'°
"From the uncontroverted testimony of Glore.
"From the credited testimony of Lewis
"From the credited testimony of Lewis and Bach
"See River Togs, 160 NLRB 58, 60-61
"From the testimony of Dennis Gravelle and employee Lewis
About the same time employee Marjan Petrinec
received a subpena to appear before the Board
investigator. This subpena was dated June 13, 1967.
Petrinec, without showing the subpena to Maintenance
Foreman Otto Klug, asked Klug what he should do about
it. Klug told Petrinec that it was up to Petrinec and that
he should do as he thought best and if he wanted any
more advice to see James Snyder."
From all the foregoing, I find and conclude that
although both the Snyders and Klug told the employees,
in effect, that it was up to them to go or not to go to the
Board in response to the letters they received or the
subpena which Petrinec received, nevertheless, they at no
time were told not to appear as requested. Accordingly, I
do not find that the Respondent in any way interfered
with the processes of the Board. I shall therefore
recommend dismissal of that paragraph of the complaint
which alleges such interference."
C. The Discharges
1. Douglas Gravelle
Gravelle was hired by the Respondent in May 1966 and
was assigned to the back shop as a machine operator on
the night shift. At the time of the events herein, Gravelle
operated a machine called the "shear." His immediate
foreman was Raymond Pajak, his superintendent was
Herman Zimmel. Before the advent of the Union,
Gravelle had never been reprimanded for his work or his
conduct as an employee. In fact, in the short space of
time of his employment, Gravelle had received two
10-cent-per-hour wage increases and had been
complimented on several occasions by Pajak for the
manner in which he had performed his work. Also, when
Gravelle's brother was being released from military
service, Gravelle asked Pajak for a job for the brother and
Pajak told Gravelle that if his brother was as good a
worker as Gravelle the brother would have no trouble at
all."
About the middle of September 1966, Gravelle called
the union hall and told a union representative that some
of the employees at Respondent's plant were interested in
having the Union represent them. As a result, a business
representative was dispatched to meet with Gravelle. From
this meeting began the union organizing campaign of the
Respondent's employees. On September 19, Gravelle
signed a union authorization card at his home where he
met the union representative and also received many
additional cards. These cards Gravelle either distributed to
"From portions of the credited testimony of employees Bishop and
Scott This testimony was not denied by Gerald Snyder in his testimony
"From the credited testimony of Klug After considering the testimony
of Petrinec which states that he showed the subpena to Klug, I find and
conclude that Petrinec was mistaken and did not show the subpena to Klug
and that Klug 's testimony to the effect that Petrinec merely showed him
the envelope was the more correct version of the incident.
"There was an additional incident upon which the General Counsel
would rely which involved employee George Glore This incident was one
which involved Gerald Snyder. However , Glore maintains that he was
never told by Gerald Snyder that he should get a copy of his pretrial
affidavit from the Board and show it to the Respondent's labor counsel
Although Glore ' s pretrial affidavit , which was his second, stated this, in
view of Glore's denial that Snyder ever told him anything beyond the fact
that Glore could obtain a copy of his affidavit, I do not find that the
incident occurred as the General Counsel would have wanted it to
Therefore , I do not include this incident in my consideration of whether
the Respondent interfered with the Board ' s investigative processes
"From the uncontroverted testimony of Gravelle.
SNYDER TANK CORPORATION
other employees personally or gave to other employees to
distribute. Thus, Gravelle was directly responsible for the
Union's coming into the picture at the Respondent's plant.
In addition to the foregoing activity on behalf of the
Union, Gravelle attended the Board hearing in the
representation proceeding and testified on behalf of the
Union. Also, some time in the organizing period, Gravelle
was accused by Gerald Snyder, basically on the complaint
of employee George Glore, of threatening plant personnel.
This Gravelle denied stating that he had merely told
employees the purpose of the cards when he made
distribution. It should be noted, in connection with Glore's
complaint, that Glore told Snyder that he thought the
Union had planted Gravelle in the plant.5°
Additionally, during the union campaign, employee
Edward Waz had occasion to discuss Gravelle with
Foreman Raymond Pajak. Pajak told Waz, in substance,
that now that Gravelle was trying to get the Union into
Respondent's plant he was getting "too big for his
britches." Another time, Pajak told Waz that since
Gravelle had been trying to get the Union in, Gravelle was
going to try to tell how to run the plant.55
On the night of November 30, 1966, Gravelle was
working on the shear with Kenneth Hinderliter, a fellow
employee. The machine area where Gravelle was working
was cluttered with wooden blocks which were used in the
stacking of steel plates which in turn were used in the
manufacture of tanks. (The blocks are approximately 2- to
3-feet long and are made from 2 by 4 or 3 by 3 lumber,
and some smaller sizes, cut up into the necessary lengths.)
When Gravelle and Hinderliter were working that night
the blocks were getting in their way. Gravelle took some
of the blocks and kicked others into the aisle alongside the
shear to get them out of the way. Because the aisles are
used to move material and as walkways, Gravelle was
planning to pick up the blocks so that they could be
moved out of the plant by means of the overhead crane to
the outside where they could be disposed of by burning.
Gravelle was about to go up the aisle to get the crane
when Pajak came over to Gravelle and asked the latter,
"What did you throw the blocks in the aisle for.""
When Pajak asked what Gravelle had "thrown" the
blocks into the aisle for, Gravelle answered that he had
not thrown them. Upon that answer, Pajak turned to
Hinderliter and asked the latter if he had thrown the
blocks in the aisle. Hinderliter denied he had thrown the
blocks. After some further discussion, Pajak said
something to the effect that he was sick of the whole
business and that Gravelle and Hinderliter were going to
have to see Superintendent Herman Zimmel the following
morning.
Later that evening Gravelle again spoke to Pajak and
asked why Gravelle had to see Zimmel. Pajak answered
that it was because Gravelle had thrown blocks. Upon
Gravelle's asking Pajak if the latter saw Gravelle throw
blocks, Pajak answered in the negative. Thereupon
Gravelle, who claimed the incident had made him nervous,
asked to go home. Pajak consented and signed Gravelle's
punched out card.
Some time during that same evening , Kenneth
Hinderliter and Pajak conversed about the alleged block
"Accordingly, I do not credit Gerald Snyder ' s claim that he did not
know that the alleged threats were made in connection with union activity
of Gravelle
"From the uncontroverted testimony of Waz which I credit
"this version of the block piling in the aisle from credited testimony of
Gravelle. The only eye witness was Kenneth Hinderliter whose version did
not differ materially from Gravelle's.
735
throwing. Again Pajak asked Hinderliter, "Who threw the
blocks in the aisle."
When Hinderliter demurred, Pajak told Hinderliter that
the latter had his job to think about. This persuaded
Hinderliter who then told Pajak that Gravelle threw the
blocks.
The next evening about 4 o'clock Gravelle went to see
Zimmel. Zimmel asked Gravelle why the latter threw
blocks in the aisle . Gravelle denied he threw the blocks
and reminded Zimmel that Pajak had admitted to
Gravelle that Pajak did not see Gravelle throw blocks.
Then Gravelle asked Zimmel what was going on and why
Gravelle was being blamed for everything that was
happening . Zimmel answered that he had some evidence
that Gravelle had thrown the blocks in the aisle. Upon
that, Zimmel told Gravelle that the latter was to be
suspended for 2 or 3 days pending investigation of the
matter and that Zimmel would contact Gravelle by phone
or mail and tell the latter the outcome and the decision.57
The same evening that Gravelle was suspended,
Kenneth Hinderliter spoke to Superintendent Zimmel who
told Hinderliter that President Gerald Snyder wanted to
see him.58
Upon arrival at Snyder's office, they found Snyder,
John Sullivan, labor relations advisor to the Snyders, and
Hinderliter's father, a tow-motor operator in the plant.
Hinderliter related to those present his version of what
had occurred the night before. Among other things, he
told Snyder and Sullivan at that meeting that there had
been blocks thrown by other people in the plant, but that
there were never as many blocks thrown before at any one
time.
With regard to the amount of blocks placed in the aisle
on the night of the incident, James Stuhr, a former
employee of the Respondent, testified that on that night
he was wheeling material through the aisle in question.
Three different times during that evening he fell over the
aisle blocks and was forced to remove the blocks each
time in order to continue with his two-wheel buggy. Stuhr,
however, did not see who placed the blocks in the aisle.
In any event, on the morning of December 5 Gravelle
called Zimmel by phone and asked the latter whether
Gravelle was to return to work. Zimmel answered that the
investigation had not yet been completed but that
Respondent would let Gravelle know in 2 or 3 days. The
very next morning , however, December 6, Gravelle
received a letter in the mail which informed him that he
was terminated.
That there were other incidents involving the placing of
obstructions in the path of material movers is shown in
the record. Thus, some time after the union organizing
campaign started, employee Galbo was moving some
material up the aisle on a two-wheel dolly when someone
threw a block under the wheel. Forman Pajak observed
the incident, and just smiled saying nothing and taking no
action. 59
On another occasion, during the week of November 23,
1966, employee Waz placed some shelving out in the aisle.
Some employees were wheeling material up the aisle and
could not get by. Pajak asked employee Dubke why the
latter was blocking the aisle . When Dubke denied that he
"From the credited testimony of Gravelle which testimony did not differ
materially from that of Zimmel as to the meeting
"According to Zimmei's testimony , Hinderliter told Zimmel that
Gravelle not only threw the blocks in the aisle but was laughing about it as
he did so However , Hmderluer did not so testify.
"From uncontroverted testimony of Douglas Gravelle
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was blocking the aisle and pointed to Waz, telling Pajak
that Waz was the culprit, Pajak left taking no action.
In another incident which occurred in September 1966,
employees Dennis Gravelle and Gary Scherff were
working together on a press when Pajak came alongside
their machine with a tow-motor. Pajak left the tow-motor
there and when he was gone Scherff placed blocks under
the wheel of the motor. When Pajak returned he said that
if there were any blocks under the wheel Scherff could go
home. Then Pajak mounted the two-motor but he could
not move it because the blocks were under the wheel. He
turned to Scherff and told the latter to go home. Pajak
then went away with the tow-motor and when he came
back Gravelle told him that he'd have to have somebody
to work with. About 10 minutes later Scherff returned and
Gravelle told him that he had thought that Scherff had
gone home. Scherff stated that he went to get coffee and
thereafter Scherff stayed and worked with Gravelle. Pajak
saw him there and went away and that was the end of the
incident. According to Scherff the whole incident was
taken in a joking manner.`°
Still another incident occurred. Two or three weeks
after Gravelle was discharged Waz was fitting tanks.
In order to do the job properly a section of the tank
had to be burned out. In order to get the job done,
while he was waiting for someone to burn the tanks out,
Waz placed the tanks out in the middle of the aisle. Pajak
wanted to know what he was doing. Pajak said to Waz
something to the effect that Waz was trying to lose his job
like Gravelle did by putting tanks in the aisle . Then Pajak
had moved them out of the aisle and that was the end of
the incident . No action was taken."
It should be noted in connection with the alleged
block - throwing incident that although Gerald Snyder gave
the final order to discharge Gravelle, Gravelle was never
asked to give his version of the incident. Moreover,
although Snyder stated that there were others who had
been discharged for cause within the period of time near
the time that Gravelle was discharged, only in two
incidents were there discharges without prior warning. In
one of these incidents , the employee involved used certain
four- letter words in defying his foreman . In the other
incident, the employee involved punched another
employee' s timecard at a time when the other employee
was not present in the plant for work . In all other cases,
the Respondent admitted that it had given warnings and
had not discharged employees on their very first
infraction.
It cannot be denied that placing obstructions in the
rather narrow aisles of the plant was a dangerous practice.
Employees using dollies and tow-motors could readily be
injured upon impact with the obstructions . Thus, under
ordinary circumstances, the placing of obstructions in the
aisles would constitute an offense calling for some
disciplinary action on the part of Respondent ' s officials.
However, as can be readily deduced from the record,
Foreman Pajak treated other infractions involving the
placing of obstructions in the aisles and walkways in a
rather cavalier fashion . It may be argued that the reason
for this was that the other offenses were minor and that
the offense of Gravelle was major in impact and involved
more than a mere temporary blocking of the aisle at one
"From the credited testimony of Dennis Gravelle and Gary Scherff.
Pajak testified that there was nothing to the incident because the
tow-motor was not moving at the time . However Pajak did admit that he
did not report this incident to the front office
"From credited , uncontroverted testimony of Waz.
time . Thus, as former employee Stuhr testified, at three
different times during the evening he was forced to stop
moving material in order to clear the aisles to make
passage possible.
Thus, if Gravelle placed the blocks in the aisle for the
purpose of obstructing passage of material carriers,
disciplinary action of some sort might have been
warranted. But, here we have an employee whose record
up to the time of the incident was exemplary. He had
received wage increases and several compliments on job
performance during the short span of time of his
employment with the Respondent. Suddenly, for an
infraction involving horseplay, which theretofore had been
lightly treated, this employee was suddenly not warned,
not disciplined by reprimand as was the Respondent's
admitted normal procedure, but was discharged without
being given an opportunity to explain his action. And, this
occurred at a time when the heat of the election campaign
was at its highest and after Respondent had full
knowledge of Gravelle' s activities on behalf of the Union.
The disparity of the treatment given Gravelle as compared
to similar, although perhaps more minor offenders, is
emphasized by the fact that only two other employees had
been discharged without warning. Of these two, one had
cursed out a supervisor in defying the latter's authority
and the other had dishonestly punched in a fellow
employee's timecard at a time when the other employee
was not even in the plant.
Therefore, in view of the Respondent's vehemently
expressed opposition to the unionization of its employees,
the other unfair labor practices found to have been
committed herein, Gravelle's excellent record as an
employee and his open support of the Union, and the
disparity of treatment received by Gravelle compared to
other employees convinced me that Gravelle's
misbehavior, if, indeed, it was that, was seized upon by
the Respondent as an opportunity to rid itself of a strong
union adherent and that the reason given for Gravelle's
discharge was pretextual , the true reason being his union
activity.
Accordingly, I find and conclude that the Respondent
discriminatorily discharged Douglas Gravelle in violation
of Section 8(a)(3) and (1) of the Act.
2. James Scott
Scott had worked for Respondent for a period of
approximately 6 years when he was discharged on
February 2, 1968. Like Gravelle, Scott was active in
organizing for the Union at the Respondent's plant. He
helped distribute cards and discussed with various
employees the advantages of unionization to the point of
getting involved in arguments with employees with regard
to this matter. Scott testified for the Union at the
representation hearing and acted as a union observer at
the election. Additionally, Scott testified, as heretofore
noted, as a witness for the General Counsel in the early
part of the instant proceeding in the fall of 1967.
In August 1967 the Respondent established and
published new rules regarding tardiness and absenteeism.
On December 15, 1967, Scott received a 1-day suspension
for being absent without calling in . He had several
conversations with management regarding this suspension
and also had been warned prior to this time with regard to
his lateness and absenteeism . Several days before he
received the letter of suspension, Scott was having coffee
in the locker room when Superintendent Zimmel called
Scott into Zimmel's office. Zimmel told Scott that the
SNYDER TANK CORPORATION
latter had been off the day before and had failed to call in
and that therefore Scott was to receive a 1-day
suspension , starting the next working day. Then Zimmel
told Scott that Vice President James Snyder wanted to see
Scott as soon as possible.
Five minutes later Scott went to James Snyder ' s office
and spoke to the latter . No one else was present . Snyder
asked Scott if Zimmel had already spoken to him
regarding the suspension and Scott answered in the
affirmative . Whereupon Snyder told Scott the Respondent
was going to start "cracking down" on absenteeism and
tardiness . Scott answered that this was all right with him
provided "you carry this through with the other ones."
However , Scott admitted he had the suspension coming
to him but that the rule should be applied to everyone not
just the prounion men. Snyder answered that Scott was
the only one that was brought to Snyder ' s attention but
that he would investigate further to see if there were any
others. "_
Scott admitted in testifying that he requested the letter
notifying him of the 1-day suspension although normally
the Respondent did not notify employees in writing of this
type of action . Scott also admitted that he was aware of
the rules against tardiness and unexcused absenteeism.
On January 24, 1968 , Scott was again sent to James
Snyder ' s office by Superintendent Zimmel . Only Scott
and Snyder were present in Snyder ' s office . Snyder told
Scott that the latter had been late for work that day and
the day before ; that Scott gave him no other choice but to
give Scott a week ' s suspension . Snyder further informed
Scott that the suspension would start the following day,
Thursday , and that Scott was to report for work the
following Thursday . According to Scott then Scott asked
"Why just me?"
Snyder replied that Scott was the only one brought to
his attention . Also Snyder told Scott , at Scott' s request,
that a letter regarding Scott ' s suspension would be sent to
Scott. According to Scott, he asked Snyder whether the
suspension could not start on Friday with Scott reporting
back the following Friday . Snyder assented , but said he
would have to check with Herman Zimmel . Snyder then
left the office but shortly returned , said he could not get a
hold of Zimmel , but that he would call Zimmel that night
at home . He told Scott to come to work the next day,
Thursday . Scott did work the next day.
Scott reported for work on the following Friday,
February 2. As Scott was walking out of the locker room
into the plant Zimmel approached and asked Scott to
come to his office . When they arrived at the office,
Zimmel said "You're done . You were supposed to be here
yesterday . You failed to report or call . You're done."
Scott then explained to Zimmel the arrangement Scott
had made with James Snyder the week before about
taking his suspension from Friday to Friday rather than
Thursday to Thursday . He told Zimmel he was supposed
to get a letter to that effect from the Respondent but did
not receive any letter . Then Zimmel showed Scott a copy
of a letter which read , in part , that Scott was to receive a
suspension of I week , 5 workdays , and to report back to
work on February 1 (Thursday ) inasmuch as Saturday
was a scheduled workday. Thus , the letter actually gave
Scott a suspension extending from Friday , January 26, to
Thursday , February 1.
Scott and Zimmel had some more words and finally
Scott went to see James Snyder where much the same
"From uncontroverted testimony of Scott Zimmel did not testify as to
this matter and Snyder did not refute this portion of Scott 's testimony.
737
argument was made by Scott who reminded Snyder of the
Friday-to -Friday arrangement . Snyder denied that such
arrangement was made . Then Scott stated that he had
never received a letter of suspension as promised . Snyder
showed Scott a copy of a letter dated January 25, above
described . Scott claimed this was the first time he had
seen the letter. According to Snyder , the letter was sent by
regular post . The letter admittedly carried Scott ' s correct
address.
Then Scott argued some more , with Scott reminding
Snyder how the latter went out of the room to contact
Zimmel on the previous Wednesday and how Snyder had
come back and said he could not contact Zimmel and
then told Scott that he would contact Zimmel at home
that night . According to Scott, Snyder thereupon denied
that he had ever left the room . Then Scott argued some
more stating that Snyder had told him that he was to have
a week ' s suspension and had said nothing about Saturday
work . Nor had Snyder said anything about a 5-day
suspension.
In testifying , Scott stated that Saturday is not a regular
working day but that the employees are notified by a
notice on the bulletin board if they were to work on
Saturday . Scott , however , admitted that perhaps the three
or four Saturdays before his suspension they had worked.
It should be noted in connection with this issue that
during his week 's suspension , on Thursday , the day the
Respondent allegedly told Scott to report , Scott came to
the plant to pick up his check . He did not speak to either
Zimmel or Snyder on that day although he picked up his
check in Zimmel' s office from the company timekeeper
who is an uncle to the Snyders . No one spoke to him
about why he had not returned on that morning. 63
In connection with the issue of whether Scott was
discharged for cause or for discriminatory reasons, in
addition to the copy of the letter of suspension which the
Respondent claims was sent Scott and which Scott claims
he never received , the Respondent offered into evidence
records of the Company which showed that , indeed, Scott
had been frequently absent without excuse or tardy during
the year immediately preceding Scott ' s discharge. The
record also shows, by other company records , that 31
employees were discharged by the Respondent for
absenteeism or habitual tardiness during the period from
January 8 , 1966, to February 2, 1968.6'
Additionally , the record shows that two other
employees , Lewis and Cicac, were also suspended, about
the same time that Scott received his suspension, for
similar offenses.
As in the case of Gravelle , the Respondent had ample
opportunity to gain knowledge of Scott ' s activities on
behalf of and sympathies for the Union . Moreover, Scott
was a rather bold and outspoken individual who openly
"All of the foregoing from the uncontroverted testimony of Scott.
Snyder did not testify in a contradictory manner to Scott, and indeed, in
his testimony , did not touch upon many of the subjects which Scott
covered in his testimony
`The record contains considerable testimony with regard to several
conversations between Scott and Snyder and Sullivan in Gerald Snyder's
office the day before the election . Although this testimony may have some
bearing on company knowledge it is not recited here for the reason that
there is other ample testimony in the record to indicate that the
Respondent had ample notice of Scott 's union activities and sympathies
Additionally, this testimony by Scott was directly controverted by both
Jerry Snyder and John Sullivan, the Respondent's labor relations advisor
Because of my disposition of this matter, I do not find it necessary to
dispose of the credibility resolutions involved in this particular line of
testimony.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressed his thoughts regarding working conditions and
union adherence. Thus, as related earlier in this Decision,
it was Scott who asked Gerald Snyder, at a meeting soon
after the Union's drive started, what had happened at the
Birmingham plant. On another occasion, Scott, after a
meeting called by Gerald Snyder, went to Snyder's office
to protest working conditions. At another occasion, at the
company Christmas party in 1966 Gerald Snyder asked
Scott why he was anticompany and Scott answered that
he was not anticompany but was opposed to those who
were anti-Scott.
Thus, I find and conclude that despite James Snyder's
protestations to the contrary, he possessed ample
knowledge of Scott's activities on behalf of the Union at
the time he decided to suspend and then discharge Scott.
The General Counsel contends that inasmuch as Scott
testified he never received the letter informing him of his
suspension, the letter was purposely never mailed and,
therefore, James Snyder had "set up" Scott for dismissal
because Scott's verbal understanding with Snyder was that
Scott should report back on Friday, whereas the letter
stated Thursday, and thereby Snyder trapped Scott into
giving Snyder an excuse to discharge a most active union
adherent.
Snyder testified that he considered Saturday a workday
and that since a workweek was 5 days, Scott's reporting
date after suspension should have been Thursday. In
connection therewith, Scott admitted that for a number of
Saturdays immediately preceding the suspension period
the plant had worked. Therefore, I do not find it
unreasonable that Snyder considered Saturday a workday
in computing the suspension period.
As to the contention that the letter was never mailed,
Snyder testified that he wrote the letter in longhand, gave
it to a secretary to type, signed the letter, gave it back to
the secretary, and saw her place it in a basket of outgoing
mail. Snyder did not testify that he actually saw the letter
mailed. However, I do not consider this to be a fatal
defect. Snyder testified to a normal business routine. All
letters were placed in the outgoing-mail basket. The fact
that Snyder did not testify he saw the letter mailed makes
his testimony more credible. If he was going to fabricate,
he could have easily testified that he saw the letter mailed
or mailed it himself.
In any event, the most that can be said about the
conflict in reporting days is that there was a
misunderstanding and I cannot conclude that Scott was
"set up" for discharge.
My conclusion is bolstered by the fact, as proven by
Respondent's records, to which General Counsel
stipulated, that 31 other employees, in addition to Scott,
had been discharged for tardiness and unexcused absences
during the year immediately preceding Scott's discharge
Moreover, two other employees were suspended, about the
same time Scott was suspended, for similar offenses.
Thus, unlike the instance of Gravelle, a case is not made
out that Scott received disparate treatment compared to
others similarly situated.
It cannot be denied that in the light of all the
circumstances contained in the record of this proceeding
and in the light of Respondent's knowledge of Scott's
union activities and sympathies and of the Respondent's
expressed antipathy for the Union, there arises substantial
suspicion that Scott was discriminatorily discharged.
However, in view of Scott's long record of absenteeism
and tardiness, the numerous warnings he received
therefore and the fact that he did not receive disparate
treatment, I find and conclude that the General Counsel
has not proved by a preponderance of the credible
evidence that Scott was discharged for his union activities.
Accordingly, I shall order the complaint alleging that
Scott was discharged in violation of Section 8(a)(3) and
(1) of the Act, be dismissed in its entirety.
D. The Refusal To Bargain
1. The appropriate unit
In accordance with the Regional Director's Decision
and Direction of Election, dated December 20, 1966, I
find and conclude that all production and maintenance
employees, including warehouse employees, employed at
the Respondent's Buffalo, New York, plant, excluding all
office clerical employees, professional employees,
truckdrivers, truck mechanics, and supervisors as defined
in the Act constitutes a unit appropriate for the purposes
of collective bargaining.
The General Counsel would exclude, and the
Respondent include, in the unit herein found appropriate,
Donna and Margaret Bellanca , maids or cleaning women
whose main duties are to straighten out and clean up the
offices of the Respondent. These two women are
employed part time, working only Sunday and Wednesday
evenings , they do not punch timeclocks nor do they have
any contact or relationship with other employees in the
production or maintenance unit . Moreover, they are
related to the Snyders who are the top management of the
Respondent corporation. I find and conclude that the
employment interests of these two cleaning women differ
from those of the rest of the employees in the unit and
that they are, therefore, excluded from the unit.
Moreover, the Respondent did not include either of these
two individuals on the eligibility list for the election."
I further find and conclude, in accordance with the
Regional Director's decision, that all of the working
foremen are supervisors as defined in the Act and are
therefore excluded from the unit. Additionally, the parties
stipulated the names of truckdrivers as they appear on the
Respondent's payroll lists for the period of October 9,
1966. These drivers, seven in number, are also excluded
from the unit herein found appropriate.
2. The majority
With the exclusion of the above individuals from the
payroll list, it would appear that there remains on the list
151 names . Therefore, 76 authorization cards are required
to support the Union's majority claim . The General
Counsel introduced at the hearing 81 authorization cards
which were duly identified. However, the Respondent
contends that a sufficient number of cards were obtained
by fraud or were otherwise defective so as to eliminate the
Union's majority. I shall treat with these contested cards
individually.
James Stuhr. Stuhr testified that he had signed the card
after having been told by other employees who were
soliciting the cards that Stuhr's brother had signed and
because pressure had been put on him by reason of his
brother's relationship through marriage to the
Respondent's management However, Stuhr did not detail
what this pressure was other than the foregoing and he
further related that the pressure had been put on him in a
joking manner. Stuhr further stated, in his testimony, that
he had read the card before he signed it. In addition,
"See J Heber Lewis Oil Company, Inc, 123 NLRB 1115, 1116, Helms
Motor Express, Inc, 107 NLRB 132, 135.
SNYDER TANK CORPORATION 739
Stuhr admitted that he had not told the Board agent who
had investigated the case that he had been pressured into
signing the card.
I find nothing in the foregoing which would
demonstrate that Stuhr signed the card through
misrepresentation of the type which the Board has before
held to be defective or fatal . Nor was there any coercion
of the type which would render the card defective.
Accordingly, I shall count Stuhr ' s card in assessing
whether the Union did possess a majority on the date of
its demand.
Charles Hartman : When asked what was said to him
when he received his card, Hartman testified, "Well, they
were talking about getting an election for that it was,
the card it was for, to get an election to try to get a
Union down there."
However, Hartman also testified that he read the card
before signing it. I do not find that even crediting
Hartman fully , that it was expressed to him , either
explicitly or indirectly , that the card would be used only
for an election . The testimony is very meager and, in view
of this and the fact that Hartman read the card before he
signed it , I find that under all the circumstances there was
no assurance to Hartman that the card would be used for
no purpose other than to get an election."
Chad Troup: Troup testified that he received his card at
a meeting at the union hall, that he filled it out and signed
it there and gave it back to the union representative. He
further testified that before he signed the card , the union
representative said to Troup " to fill this card out was for
getting a vote , so you could vote for the Union to come
in.,,
However, upon redirect examination , Troup stated that
he could not remember exactly what was said to him at
the union hall before he signed the card . Then, because he
said his recollection was exhausted, General Counsel
presented him with his pretrial affidavit for the purpose of
refreshment of recollection . After his recollection was thus
refreshed , Troup testified that he was told at the union
meeting that the Union could get recognition for the plant
with the cards and if he wanted to sign one he could and
if he didn ' t want to sign one he didn ' t have to . Troup also
stated that he read the card fully before he signed it.
In the light of all of the foregoing , I do not find that
the import of Troup 's testimony is that it was represented
to him in substance , that the card would be used only for
an election . Accordingly , I accept Troup' s card as a valid
union designation.
John Szmalec: Szmalec spoke only broken English,
and, at best, his testimony is difficult to understand. In
any event, there was nothing in his testimony concerning
the subject of' election. He testified, in substance, that a
man bothered him to sign the card that he knew nothing
about it Respondent contends that Szmalec signed only to
bring an end to being bothered. But, I find no precedent
which would render a designation invalid merely because
the signer was "bothered" into signing . There is no
testimony here that Szmalec was coerced or threatened
into signing . Moreover, at best SLmalec's testimony was
limited in effect since he admitted that he did not
remember just what was said to him by the solicitor
Accordingly, I conclude that Szmalec's card is a proper,
valid designation.
Bernard Carney: Carney testified that the card was
solicited by a fellow employee whose first name was
Dennis. Asked what this fellow employee told him before
he signed the card, Carney testified that the solicitor
stated the card was " . . to get enough votes in or get
enough signatures so we could get a vote at the plant."
'See Levi Strauss & Co , 172 NLRB No 57
However, Carney prefaced this testimony with a
declaration "I think it was, I'm not positive "
Additionally, Carney testified he read the card before he
signed it.
On the basis of the totality of the record before me, I
cannot conclude that Carney signed because he was given
assurance that his card was to be used only for an
election . Under these circumstances, I will count his card
as a valid designation in my computation regarding the
issue of majority.
Frederick Schmidt: Schmidt testified that he received
the card from fellow employee Sam Bellavia who told
Schmidt that the card was for ". . . seeing about getting
representation or a vote from the UAW "
I find nothing in this statement which suggests that
Schmidt was told that the card was only for an election.
Accordingly, I accept Schmidt' s card as a valid
designation.
Sebastian Ciacek: Ciacek received his card from
employee Pates who told Ciacek, "sign the card . and
bring the Union in . ." Upon cross-examination and
upon a leading question put to him by counsel for the
Respondent to the effect that Pates told Ciacek about a
vote, Ciacek answered "he said something about bringing
the Union in for having a vote "
Upon consideration of all Ciacek' s testimony , I cannot
conclude that Ciacek was assured that the card was only
for an election . Accordingly, I shall count his card as a
valid union designation
Terrance Crook- Crook testified that he received his
card at a meeting at the union hall and that he was told
that the cards were, "so they could come in and take a
vote." Crook further testified that he did not read the
card but only filled in his name and address because, "He
[referring to the solicitor] said it was just for an election
and I wasn't against no election." Crook then identified
the card solicitor as William Smigelski, International
representative of the Union.
However , Smigelski testified that at the meeting he
explained the procedures in obtaining recognition and he
also explained that it is normal for a company to send a
letter of doubt once the union sent a letter requesting
recognition . He said in that instance the union would then
proceed to the Board and file a petition. Smigelski
specifically denied that during his talk he spoke to
employees in mentioning the cards that the cards were
only for an election.
Upon my observation of both Crook and Smigelski, I
find and conclude that Smigelski ' s testimony was the
more reliable of the two . This conclusion is bolstered by
the fact that Smigelski further testified that union
representatives were instructed by union counsel to stay
away from talking about an election as far as the cards
were concerned . I finally conclude that what was told the
employees at the meeting that Smigelski presided over
was that the Union would seek , through the cards, to gain
recognition from the employer voluntarily and that if this
was not accomplished then a petition for an election
would be filed.
Accordingly , I find and conclude that Crook's card
may be counted as one in support of the Union' s majority
claim.
Ronald Guest . Guest received two cards, one from
Douglas Gravelle, who merely handed a card to Guest
without saying anything, and another from a union man
outside the plant who gave Guest a card and a leaflet
explaining the Union's claimed benefits. Guest testified
that he did hear talk around the plant to the effect that
there would be an election However, Guest did not testify
that he was told by anyone representing the Union that
the cards were only for an election
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I shall count Guest's card as a valid
designation in computing majority.
Donald Bellanca: Bellanca received his card at the
union meeting presided over by Smigelski who, according
to Bellanca told the employees that the card would be sent
to the Company and the Company will turn around
and it will come to the N.L R.B. and it will come up for a
vote and whichever way the vote went is the way it would
be."
I do not find this testimony to be inconsistent with
Smigelski ' s testimony to the effect that he told the
assembled employees that the cards be used to support a
demand for recognition and, failing recognition, they
would be used to obtain an election . Under all
circumstances , I find and conclude that Bellanca was not
told, in effect, that the cards were only to obtain an
election . I shall , therefore, consider Bellanca's card as one
in support of the Union's claimed majority.
Harold E. Ivon: Ivon testified that it was his
understanding at the time he signed his card that the card
was for "getting up enough cards signed to get an
election." He did not testify that anyone made this
representation to him.
The Board and the courts have long held that an
employee's purely subjective reaction as to the meaning of
a card , or as to his motivation in signing it, does not
negate the overt effect of his designation."
In the instant case, Non ' s card is an unambiguous
designation of the Union as bargaining representative.
Accordingly, I find and conclude that Non ' s card is a
valid designation.
Samuel C. Bellavia: Bellavia's card, dated September
20, 1966, is postmarked October 15, 1966. Therefore, I
can only conclude that the Union did not receive the card
until some time after the later date Although the Union's
request for recognition was made on October 7, about a
week before the Union could have received Bellavia's
card, I find that the Union's demand was a continuous
one as evidenced by the Union's participation in the
representation case heretofore mentioned. Accordingly,
even though Bellavia's card was not received by the Union
until after October 15, it may be counted as a card upon
which the Union's majority may be based."
Delbert Max Hinderliter: Hinderliter received a card
from a union representative outside the plant . This was
accompanied by a leaflet explaining the claimed
advantages of unionization . Hinderliter signed this card
and returned it. He received a second card at a union
meeting and signed and returned the latter card also.
However , Hinderliter testified that he was asked to sign
the second card to verify his attendance at the meeting.
Respondent contends that this testimony renders the
designation invalid and that Hinderliter did not request
the Union to represent him. I find no merit in this
contention . Assuming , arguendo , that the representation
was made to Hinderliter before he signed the second card
as he testified , and assuming that this invalidated the
second card , nevertheless , Hinderliter ' s other card still
remains an unsullied designation . Accordingly, I find that
Hinderliter did designate the Union as his representative
and I shall count his card as one in support of the Union's
majority claim.
Joseph Matteucci: Matteucci testified that he received
his card at a union meeting where he was told to sign the
card by Smigelski "so we could find out who worked
there and how many employees showed up for the meeting
and the names and addresses."
However, Matteucci further testified that Smigelski
also talked about getting the Union in and "stuff like
that ." The meeting lasted about an hour . Matteucci filled
out all the blank spaces in the card himself and signed it.
But, employee James Smith testified that at the union
meeting the employees were told that the purpose of the
card was to find out how many people wanted the Union.
I do not find that Matteucci ' s testimony is completely
in conflict with the testimony of Smigelski or Smith
heretofore related . Smigelski testified that he told the
Respondent's employees about union designation as the
primary purpose of the cards and that if the Respondent
refused recognition on the basis of the cards , the cards
would be used to support a petition for an election.
Certainly , in the hour-long talk , as related by Matteucci,
the subject matter could not have been confined to merely
asking those assembled to sign for the purpose of taking
attendance.
Accordingly , on the basis of the totality of the record, I
find and conclude that Matteucci was not induced to sign
his card on the representation that it was solely for
attendance purposes. Therefore , I shall rely on this card
as valid for the purposes of the disposition of the majority
issue.
Donald Cooper and Larry Rollins: The cards of these
individuals were identified by a handwriting expert, Joel S
Lisker, a special agent of the Federal Bureau of
Investigation, who testified that the handwriting and
signatures on the cards and the handwriting and signatures
on these individuals' withholding exemption certificates
and payroll deduction authorizations were made by the
individuals named. I find and conclude that the cards were
sufficiently identified and are genuine.
However , Respondent contends that cards should not
be counted as designations because the signers were not
present at the hearing to identify the respective cards.
Therefore, the Respondent was not given the opportunity
to examine the individuals on the representations made to
them to induce them to sign.
I find no merit in the foregoing contention. The
General Counsel made out a prima facie case of execution
and regularity when he had sufficiently identified the
cards, since there is a presumption that the card was
voluntarily signed and that the signatories were aware of
what the import of the cards was. In the absence of
evidence elsewhere in the record that there was fraud or
coercion in the inducement of the signers to sign the
cards, I find and conclude the cards are authentic and that
they designate the Union as the bargaining representative
of the signers, Cooper and Rollins."
Richard Schultz: Schultz testified that he signed his
card because other employees were bothering him,
especially fellow employee Dick Bishop who told Schultz
to sign because the latter would have a guaranteed job if
the Union were to get in. Schultz replied that he would be
fired if he signed a card . Thereafter , Bishop went to
Schultz ' brother-in-law's house and persuaded Schultz'
sister-in-law to call Schultz ' wife about signing. Then
Bishop himself called Schultz' wife several times. It
"Joy Silk Mills v N L . R B, 185 F .2d 732 , 743 (C A. D.C.), cert . denied
341 U.S . 914; Gorbea , et al., 300 F .2d 886 (C.A. 1), Winn-Dixie Stores,
Inc. 341 F 2d 750 (C A 6); Gary Steel Products Corp, 144 NLRB 1160;
Economy Food Center , 142 NLRB 901, fn 2; Aero Corp, 149 NLRB
1283, 1291
"Ed's Foodland of Springfield , Inc, 159 NLRB 1256, 1261
"I have considered the obvious erasures in the date of the card of Larry
Rollins and find that the writing over the erasure is in the handwriting
appearing on the rest of the card . I, therefore , find no evidence that the
card was not meant by the signer to bear any date other than that
appearing on the card Accordingly, I do not find the erasure to constitute
a defect warranting the rejection of the card
SNYDER TANK CORPORATION 741
became so bad Schultz asked Herman Zimmel to transfer
Schultz to the night shift so he could be home days.
Schultz was shifted but the calls continued and finally
Schultz capitulated and signed.
Although the Board has held valid an unambiguous
card signed by an employee in order to get his fellow
employees "off his back," when the employee had been
subject to numerous requests to sign by fellow employees,"
I do not find such a situation presented here. The calls
by Bishop to Schultz' wife which continued until Schultz,
to protect his wife from the pressure, was forced to ask
for a shift change, did not constitute mere requests. These
calls were, rather, a form of direct and harrowing
coercion. Additionally, the calls did not cease when
Schultz did change shifts and he ultimately was forced to
capitulate to put a stop to the calls.
This becomes a matter of degree. When the calls were
extended to Schultz' wife, the degree of pressure changed
from that which can ordinarily be expected in
organizational drive and industrial life, to unbearable
coercive pressure, relief from which could only be
obtained by signing a card . Such a signing cannot be
deemed voluntary and the card cannot be considered as a
valid designation of the Union. I shall, therefore, reject
Schultz' card and will not count it toward the Union's
alleged majority.
William Reeves: Reeves was told by the person
soliciting his signature that signing a card did not mean
that it was a vote for the Union. A union designation card
of the type involved here is not a vote for the Union.
Accordingly, the representation was truthful I shall,
therefore, count Reeves' card in determining whether the
Union enjoys majority status.
James Phillips: Phillips testified that his wife read the
card to him and then he signed it. Although Phillips
admitted that he cannot read and his testimony as a whole
showed Phillips had a poor memory insofar as dates and
persons are concerned, nevertheless, I find his card to be a
valid designation. There is nothing in Phillips' testimony
to indicate that Phillips did not clearly intend to designate
the Union as his representative 71
In addition to all of the foregoing, it is well to note that
at the beginning of the Union ' s organizational campaign,
Gerald Snyder distributed a letter to the employees of the
Respondent's plant which, among other things, contained
an implication that many of the employees had been
coerced into signing authorization cards. In answer to this
allegation by the Respondent, Smigelski, on October 18,
1966, addressed a letter to all of the employees in the
plant. He mentioned in his letter the matter that Snyder
had gone into in Snyder's letter. Smigelski, in his letter,
stated all of the employees knew that no one had been
coerced or threatened into signing a card nor had any
union organizer threatened or coerced anyone or
encouraged anyone else to get cards signed by threat or
coercion. Smigelski further stated that to keep the record
straight, if any employee who had signed a card felt that
he was threatened or coerced, he could send a letter so
indicating to the UAW regional office, attention Mr.
Smigelski, and that the card of the individual who so
requested would be returned. Pursuant to his letter not a
single employee among Respondent's employees requested
a return of his card.
In the light of all of the foregoing, with the exception
of the card of employee Richard Schultz, I find that each
of the cards submitted by the Union evidenced designation
"See Triangle Plastics, Inc., 166 NLRB No 86
"See Lincoln Mfg. Co., 160 NLRB 1866, 1876
by the employees of the Union as their bargaining
representative. Each card is a good and valid designation.
Accordingly, I find and conclude that the Union had in its
possession at all times material herein 80 duly authorized
designation cards. Since the Union needed only 76 such
cards, the Union had a clear majority at all times
material.
Accordingly, I find, that the Union represented a
majority of Respondent's employees in the unit
hereinabove found to be appropriate at all times on and
after the date the Union made its demand upon the
Respondent for recognition and bargaining, and that,
therefore, the Respondent was such majority
representative at all times material to this proceeding.
3. Concluding findings as to the refusal to bargain
The Board has held that an employer violates Section
8(a)(5) of the Act when it insists on a Board election as
proof of a claiming union 's majority and where such
insistence is motivated not by any bona fide doubt as to
the union's majority, but rather by a rejection of the
collective-bargaining principle or by a desire to gain time
within which to undermine the union. Whether an
employer who refuses to recognize the claiming union and
insists upon an election is motivated by good-faith doubt
as to the union's majority or by an intention to destroy
such majority can be determined only in the light of all of
the relevant facts of a case including other unlawful
conduct of the employer and the sequence of the events.72
I find that in the light of all of the foregoing findings in
this case that the Respondent's refusal to bargain with the
Union and its insistence upon an election was motivated
not by good-faith desire to determine the majority status
of its employees but rather by a desire to gain time in
which to dissipate the Union's majority. In reaching this
conclusion , I consider the many acts of interference,
coercion, and restraint, heretofore found, which occurred
at or about the time that the Union was organizing, at or
about the time the Union made its demand for recognition
and the refusal of the Respondent to recognize the Union,
and the continued threats and coercive acts of the
Respondent made during the period between the filing of
the petition for recognition and the election. I further note
the discharge of Douglas Gravelle, one of the most active
union adherents in the plant and the employee who, in
fact, brought the Union into the plant. I conclude that this
conduct was designed for the purpose of inducing the
employees in the unit to repudiate the Union.
Accordingly, I find that Respondent's refusal to
recognize the Union was motivated by a desire to gain
time in which to undermine the Union's majority status
and constituted a complete rejection of
collective-bargaining principles. I further find and
conclude that such conduct is violative of Section 8(a)(5)
of the Act. "
IV. THE OBJECTIONS TO THE ELECTION
As heretofore related , on January 24, 1967, objections
to the conduct of elections were filed by the Union which
is the petitioner in the representation case . The objections
were based on the conduct of the employer which I have
heretofore found constituted violations of Section 8(a)(1)
"Joy Silk Mills, 85 NLRB 1263, enfd. 185 F 2d 732 (C A D C ), cert
denied 341 U.S. 914
"Joy Silk Mills, supra.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act and other objectional conduct of the employer
which involved a letter or a handbill of the Respondent
distributed to the employees on the morning of the
election which was held on January 19, 1967.
As I have found heretofore, between the time of the
filing of the petition by the Union and the election of
January 19, 1967, the Respondent engaged in numerous
acts in violation of Section 8(a)(1) of the Act. It would
unduly burden this Decision to restate all of those
violations at this time. However, it is sufficient to state
that the Board has held that such conduct as is heretofore
found to be violative of Section 8(a)(1) and (3) is, a
fortiori, conduct which interferes with the exercise of a
free and untrammeled choice in an election." On this basis
alone, there is sufficient reason to set aside the results of
the election.
However, in addition to the conduct alleged as violative
of Section 8(a)(1), the Union filed an objection relating to
the letter of January 19, 1967, heretofore referred to,
signed by Gerald Snyder, and distributed to the employees
in the plant on the morning of the election.
The letter reads in pertinent part:
We were informed this morning that last night a
number of you were visited at your homes by people
from the union who told you that if the union didn't
win the election you would lose your job.
I said it many times before and I say it again, your job
is safe here. You will not lose your job if the union
loses the election.
If they will try to scare you now - what will they do if
they get in here?
As stated, the foregoing was contained in the letter
which was distributed on the morning of the election
which was held in the afternoon of January 19, 1967.
Thus, the letter was distributed at a time when the Union
was unable to answer any of the allegations of that letter.
In refutation of the allegations as set forth above which
were contained in the Respondent' s letter , William
Smigelski, Howard Smith, and Francis X. O'Melia, all
International representatives of the Union, testified that
no one on the part of the Union had ever made any such
statements to any employee to the effect that if he did not
vote for the Union he would lose his job. The only visit
made by Smigelski to any of the employees were to the
in-plant committee, which visits were made in the early
part of the Union' s organizational drive. However, on the
night before the election, O'Melia and Smith did visit the
home of employee Kerr. During that visit they asked Kerr
if he had any questions concerning the election. There was
some discussion and O' Melia did ask how Kerr was going
to vote in the election. But both O'Melia and Smith stated
in their testimony that they never made any statement to
Kerr to the effect that he would lose his job if the Union
did not win the election. This testimony of Smigelski,
O'Melia , and Smith stands unrefuted and I credit it.
Thus, I find, that the statement by the Respondent to
the effect that the Union threatened the employees that
they would lose their jobs if the Union was not chosen by
them as their bargaining representative was a
misstatement of material facts. Moreover, I find that the
misstatement of material facts was made at a time when
the Union could not learn about it in time to answer and
to point out the misstatement of facts. The Board has
"4Playskool Manufacturing Company, 140 NLRB 1417, 1419
long held that where one of the parties to an election
deliberately misstates material facts in circumstances such
as recited hereabove , the Board will find that the bounds
of legitimate campaign propaganda have been exceeded
and will set the election aside."
Accordingly , I shall recommend that the representation
election heretofore held in Case 3-RC-4030 be set aside.
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operation of the
Respondent as set forth 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.
VI. THE REMEDY
Having found, as set forth above, that Respondent has
engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action, set forth below, designed to
effectuate the policies of the Act. One of the more basic
rights conferred upon employees by Section 7 of the Act
is the right to freely, without coercion or restraint from
the employer, express their choice in a Board-conducted
election designed to determine the wishes of the employees
with respect to collective-bargaining representative. Since
it has been found that Respondent interfered with this
right, an order commensurate with the violations found
and designed to assure Respondent's employees the
opportunity to fully express the rights guaranteed them by
Section 7 of the Act is appropriate.
It having been found that the Respondent by threats,
interrogation, and promises of benefits interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act, I shall recommend that the Respondent
cease and desist therefrom.
It having been found that the Respondent has
discriminatorily discharged employee Douglas Gravelle, I
shall recommend that Respondent offer Gravelle
immediate and full reinstatement to his former or
substantially equivalent position, without further prejudice
to his seniority or other rights and privileges. Since I have
further found that Gravelle's suspension prior to his
discharge was also discriminatorily motivated, I shall
recommend that backpay be computed from the date of
the suspension, December 1, 1966. In addition, I
recommend that the Respondent make Gravelle whole for
any loss of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he would normally have earned
from the date of his suspension , less net earnings during
said period. Backpay shall be computed with interest on a
quarterly basis in a manner described by the Board in F.
W. Woolworth Company, 90 NLRB 289, 291-294, and
Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices
herein found , including discrimination , which goes to the
very heart of the Act," there exists the danger of
commission by the Respondent of other unfair labor
practices proscribed by the Act. Accordingly, I
"See United States Gypsum Company, 130 NLRB 901, 904
"N L.R.B v. Entwistle Mfg Co. 120 F.2d 532, 536 (C A. 4)
SNYDER TANK CORPORATION 743
recommend that Respondent be directed to cease and
desist from in any other manner infringing upon the rights
guaranteed employees in Section 7 of the Act."
Having found that Respondent has unlawfully refused
to bargain with the Union in good faith and has thereby
violated Section 8(a)(5) of the Act, I shall recommend
that the Respondent cease and desist from refusing to so
bargain, and shall further recommend that the Respondent
bargain, upon request, with the Union and, if an
understanding is reached, embody such understanding in a
signed agreement.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
Conclusions of Law
1. The Respondent, Snyder Tank Corporation, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining , and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminatorily discharging employee Douglas
Gravelle the Respondent has violated Section 8(a)(3) and
(1) of the Act.
5. All production and maintenance employees including
warehouse employees employed by the Respondent's
Buffalo, New York, plant, excluding all office clerical
employees, professional employees, truckdrivers, truck
mechanics, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
6. At all times since October 7, 1966, International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, has been the exclusive
representative of all the employees in the aforesaid unit
for the purpose of collective bargaining with respect to
rates of pay, wages , hours of employment, or other terms
and conditions of employment.
7. By refusing in October 12, 1966, and thereafter, to
bargain collectively with the aforesaid labor organization,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that Respondent Snyder Tank
Corporation, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and their attitude toward the Union, threatening
employees with reprisals including threats to close the
plant if the Union is selected by the employees to become
their bargaining representative, promising the employees
benefits if they abandon their adherence to the Union,
bypassing the Union as bargaining representative of the
employees, and assisting and encouraging employees in
distributing antiunion petitions.
(b) Discouraging membership in International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America, or any other labor organization, by
discharging any employee for engaging in protected union
or concerted activity, by discriminating against employees
in any other manner in regard to their hire and tenure of
employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
form, join, assist, or be represented by International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, or any other labor
organization, to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activity for the purpose of collective
bargaining, or other mutual aid or protection, or to
refrain from any and all such activity.
(d) Refusing to bargain collectively with International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, as the exclusive
representative of its employees in the following
appropriate unit:
All production and maintenance employees including
warehouse employees employed at the Respondent's
Buffalo, New York, plant, excluding all office clerical
employees, professional employees, truckdrivers, truck
mechanics, guards, and supervisors as defined in the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Douglas Gravelle immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges enjoyed, and make Douglas Gravelle whole
for any loss of earnings he may have suffered by reason of
the discrimination against him in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Notify Douglas Gravelle if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and
reports, and all other reports necessary to analyze the
amount of backpay due under this Order.
(d) Upon request, bargain collectively with
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, as the
exclusive bargaining representative of the Respondent's
employees in the unit found appropriate with respect to
rates of pay, wages , hours of employment, and other
terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(e) Post at its plant in Buffalo, New York, copies of the
attached notice marked "Appendix."" Copies of said
"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
"N L R B. v. Express Publishing Company . 312 U S. 426, 433 event that the Board's Order is enforced by a decree of a United States
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice , on forms provided by the Regional Director for
Region 3 , after being duly signed by the Respondent's
representative , shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material . No other
material relative to this matter should be posted during
this period.
(t) Notify the Regional Director for Region 3, in
writing , within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith"
IT IS FURTHER RECOMMENDED that paragraph 6(e) of
the complaint in Cases 3CA-3101-2 and 3-CA-3199 be
dismissed and that the entire complaint in Case
3-CA-3431 be dismissed.
IT IS ALSO FURTHER RECOMMENDED that the election of
January 19 , 1967, be set aside.
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."
"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 3, 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 NOT question any employees about their
union activities or their attitude toward the Union.
WE WILL NOT make threats, including threats to close
the plant in the event that any union is successful in
organizing our employees or wins any election held for
the purpose of determining the bargaining
representative of our employees.
WE WILL NOT make promises to our employees of
better working conditions, wages, and so forth in order
to get them to disaffiliate or disassociate themselves
from any labor organization.
WE WILL NOT assist and encourage employees who
distribute or circulate petitions against the Union or
any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to form, join, or assist or be represented by
the International Union, United Automobile,
Aerospace & Agricultural Implement Workers of
America, or any other labor organization, to bargain
collectively through representatives of their own
choosing, or engage in other concerted activity for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from any and all such activity.
WE WILL offer to Douglas Gravelle immediate and
full reinstatement to his former or substantially
equivalent position , without prejudice to his seniority or
other rights and privileges, and WE WILL make
Douglas Gravelle whole for any loss of earnings that he
may have suffered as a result of our discrimination
against him.
WE WILL, upon request, bargain collectively with
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, as the
exclusive bargaining representative of Respondent's
employees in the unit found appropriate herein with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and if
an understanding is reached, embody such
understanding in a signed agreement:
All production and maintenance employees including
warehouse employees employed at our Buffalo, New
York, plant, excluding all office clerical employees,
professional employees, truckdrivers, truck mechanics,
guards, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
WE WILL notify Douglas Gravelle if presently serving
in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, or any
other labor organization , except to the extent that this
right may be affected by an agreement in conformity with
Section 8(a)(3) of the amended Act.
Dated By
SNYDER TANK
CORPORATION
(Employer)
(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 provisions, they may communicate
directly with the Board's Regional Office, 4th Floor, The
120 Building, 120 Delaware Avenue, Buffalo, New York
14202, Telephone 716-842-3100.