Southeastern Rubber Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1953

106 N.L.R.B. 989 (N.L.R.B. 1953)

SOUTHEASTERN RUBBER MANUFACTURING CO., INC. 989
Having found that Respondent has refused to bargain collectively with the Union as the
statutory representative of his employees in an appropriate unit , I shall recommend that
Respondent , upon request , bargain collectively with the Union as such representative, and,
in. the event an understanding is reached , embody such understanding in a signed agreement.
The scope and.variety of Respondent ' s unfair labor practices found above disclose a fixed
purpose on his part to defeat self -organization of his employees and to thwart the fundamental
objectives of the Act , and justify an inference that the commission of other and related unfair
labor practices by Respondent may be anticipated . In these circumstances , the preventive
purposes of the Act would be frustrated unless the remedy were coextensive with the threat.
I will therefore recommend that Respondent be ordered to cease and desist, not only from
continuance of the unfair labor practices specifically found above , but also from in any
other manner interfering with, restraining , and coercing his employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
make the following
CONCLUSIONS OF LAW
1 International Union, United Automobile Workers of America , AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2 All employees of Respondent at West Bend , Wisconsin , excluding executives , salesmen.
office clerical employees , and all supervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3 The above Union was on September 26. 1952 , and has been since that date , the exclusive
representative of all employees in the aforesaid unit for purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4 By his refusal to bargain collectively with said Union as such exclusive bargaining
representative of his- employees in the unit aforesaid , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment and terms and condi-
tions of employment of Robert Kiefer and Arthur Kiefer , thereby discouraging membership
in a labor organization . Respondent has engaged in and is engaging in unfair labor practices
in violation of Section 8 (a) (3) of the Act.
6. By the aforesaid conduct , as well as other conduct set forth above , Respondent has
interfered with , restrained , and coerced employees in the exercise of rights guaranteed to
them by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices in violation of Section 8 (a) (1) of the Act.
7 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
SOUTHEASTERN RUBBER MANUFACTURING CO., INC. and
THE UNITED RUBBER, CORK, LINOLEUM AND PLASTIC
WORKERS OF AMERICA, CIO. Case No. 10-CA-1578.
August 26, 1953
DECISION AND ORDER
On June 15, 1953, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above - entitled proceeding, find-
ing 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 copy of the Intermediate Report attached hereto.
The Trial Examiner further found that the Respondent had not
106 NLRB No. 157.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be dismissed
in that respect . Thereafter , the General Counsel filed exceptions
to the Intermediate Report together with a supporting brief.
The Respondent filed a brief in support of the Intermediate
Report.
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 Intermediate Report , the exceptions and briefs,
and the entire record in the case, and hereby adopts the find-
ings, conclusions , and recommendations of the TrialExaminer
except as hereinafter discussed.
1. The complaint alleged that on or about May 12, 1952, and
at all times thereafter , the Respondent refused to bargain in
good faith with the Union in violation of Section 8 (a) (5) and (1)
of the Act. The Trial Examiner found that the record did not
support this allegation and recommended its dismissal. The
Trial Examiner predicates this conclusion solely upon his
findings that the Union did not make an unequivocal request
to bargain of the Respondent.
On May 12, 1952, the Union' wrote a letter to the Respondent,
the contents of which are fully set forth in the Intermediate
Report, in which it advised the Respondent that a majority of
the Respondent ' s production and maintenance employees had
designated it as their exclusive representative for the purposes
of collective bargaining. In this letter the Union further re-
quested the Respondent to join with it in negotiations with
respect to the rates of pay, wages, hours of employment, and
other conditions of employment of the employees it claimed to
represent . The last paragraph of the letter reads as follows:
You are advised that in the event you fail or refuse to
comply with our request , we propose to file a petition with
the National Labor Relations Board asking certification of
our Union as the exclusive bargaining agent for such
employees.
Thereafter, on May 26, 1952, the Union filed a petition for
certification by the Board. On June 11, 1952, the Respondent
and the Union entered into a consent-election agreement. The
election which was held on June 26, 1952, was lost by the
Union.
The Trial Examiner found that although the Union, at the
time it made its request to bargain, represented a majority of
the employees in the appropriate unit, the effect of the last
paragraph in the Union's written request was to give to the
Respondent an option of recognizing the Union on the basis of
its card designations or on the basis of a certification by the
Board. Thus the Trial Examiner concluded that the Union's
letter was not unequivocal and that the Respondent ' s failure
to reply to the letter did not constitute a refusal to bargain
SOUTHEASTERN RUBBER MANUFACTURING CO., INC. 991
but merely an election of the option accorded it by the Union,
to go to a certification election. We do not agree.
The fact that a union expresses an intention to file a repre-
sentation petition with the Board if the employer does not grant
recognition voluntarily does not justify a refusal to bargain
where the evidence reveals that the employer had deliberately
engaged in unfair labor practices in order to dissipate the
Union's majority and make the holding of a fair election
impossible.'
The record in this case shows that within 2 weeks after the
Respondent received the Union's request to bargain the Re-
spondent embarked upon a campaign to sway its employees
away from the Union. By demonstrating an antiunion animus,
by illegally interrogating and by otherwise coercing its
employees the Respondent caused the Union to lose its
majority. More specifically the evidence reveals that after
the Union had achieved its majority on May 7, 1952, the
Respondent, through its vice president and its plant manager,
privately interrogated each of 10 employees concerning their
union activities and sympathies. All of the employees so
interrogated had, prior to such interrogation, signed authori-
zation cards with the Union. Furthermore, Albert Wilson, a
former employee of the Respondent, testified without contra-
diction that Plant Manager Oakes had promised an increased
workweek with higher pay if the Union was kept out of the plant
and that Oakes threatened a reduced workweek if the Union was
voted in. Another former employee, O. G. Bryson, testified,
also without contradiction, that he, Bryson, would"see flowers
in his hat" if the Union was defeated. 2
Contrary to the opinion of our dissenting colleague, we believe
that the Trial Examiner's finding of the Union's majority status
rests on solid evidentiary ground. The designation cards from
10 out of some 14 employees in the appropriate unit were ob-
tained without the slightest suggestion of improper conduct on
the part of the Union. On this point, our decision in the Brown
Trucking 9 case seems to us controlling. Moreover, on the
question of the Union's continuing majority status, we cannot
lightly view the coercive conduct by the Respondent between
the time the card designations were secured and the date of the
consent election. As stated above, during this interval 10
employees were interrogated privately by top management
personnel as to their union activities and sympathies and Plant
Manager Oakes promised an increased workweek with higher
'Spitzer Motor Sales, Inc., 102 NLRB 437; Hawley Broadcasting Company, 100 NLRB 1329.
2 Although the complaint alleges that Oakes' threats and promises of benefit constitute
independent violations of Section 8 (a) (1) of the Act, the Trial Examiner made no findings
with respect to the above-mentioned testimony of Wilson and Bryson. As the General Counsel
did not except to the Trial Examiner's failure to make such findings, we shall not find that
these threats and promises of benefit are independent violations of Section 8 (a) (1) of the
Act. We find, however, that they have a substantial bearing upon the Respondent's bad faith
refusal to bargain with the Union.
3Brown Truck and Trailer Manufacturing Company, Inc., 106 NLRB No. 999.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay if the Union were kept out, and threateneda reduced work-
week if the Union came in. We can hardly agree to label such
conduct as "insubstantial ," unless we are prepared, as we
are not, to read a substantial part of Section 8 (a) (1) out of the
Act. It follows therefore , in our opinion , that the election
results adverse to the Union do not vitiate the Union ' s majority
secured prior to the Respondent ' s unlawful and improper con-
duct . Furthermore , no challenge was made at any time to the
validity of the authorization cards, nor has the Respondent
excepted to the Trial Examiner ' s finding that on May 7, 1952,
the Union represented a majority of the Respondent ' s produc-
tion and maintenance employees.
Under the foregoing circumstances , and upon the basis of the
entire record , we are convinced that the Respondent did not
withhold recognition of the Union because of a good-faith doubt
of the Union ' s majority in an appropriate unit . We find, on the
contrary , that the Respondent ' s failure to recognize the Union
on May 12 and thereafter was motivated by a desire to gain
time in which to dissipate the Union ' s majority and by a
rejection of the collective -bargaining principle . We therefore
regard the Board election conducted after the commission by
the Respondent of the above unlawful and improper acts to be a
nullity and set it aside.4
2. The complaint further alleges that the Respondent com-
mitted independent violations of Section 8 (a) (1) of the Act by
unlawful interrogation , by threats of reprisals , by promises
of benefit , and by granting unilateral pay increases . The com-
plaint makes specific reference to alleged interrogation,
threats, and promises of benefits by the Respondent's vice
president , Ralph Snow , and the Respondent ' s plant manager,
Grady Oakes.
The Trial Examiner found only that the Respondent through
Snow and Oakes unlawfully interrogated a number of its em-
ployees during the Union ' s organizing campaign and therefore
violated Section 8 ( a) (1) of the Act . No exceptions were taken
to any of the Trial Examiner ' s findings or his failure to make
findings concerning any of the alleged independent violations
of Section 8 (a) (1) of the Act . Accordingly , we will dismiss
the complaint insofar as it alleges that the Respondent violated
Section 8 ( a) (1) of the Act other than by unlawfully interrogating
its employees during the Union ' s organizational campaign and
by its unlawful conduct in connection with its violation of
Section 8 (a) (5) of the Act.
ORDER
U on the entire record in the case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Southeastern
Rubber Manufacturing Co., Inc ., Athens, Georgia , its officers,
agents, successors , and assigns , shall:
4 The M. H. Davidson Co., 94 NLRB 142; Squirrel Brand Co., 96 NLRB 179.
SOUTHEASTERN RUBBER MANUFACTURING CO., INC. 993
1. Cease and desist from:
(a) Refusing to bargain collectively with The United Rubber,
Cork, Linoleum and Plastic Workers of America, CIO, as the
exclusive representative of its employees in the appropriate
unit as found in the Intermediate Report.
(b) Interrogating its employees concerning their union affili-
ations and activities.
2. Take the following affirmative action which it is found
will effectuate the purposes of the Act:
(a) Upon request, bargain collectively with The United Rub-
ber, Cork, Linoleum and Plastic Workers of America, CIO,
as the exclusive representative of its employees in the appro-
priate unit as found in the Intermediate Report and embody
any understanding reached in a signed agreement.
(b) Post at its plant in Athens, Georgia, copies of the notice
attached hereto as an Appendix. 5 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, after
having been duly signed by an authorized representative of the
Respondent, shall be posted by the Respondent immediately
upon the receipt thereof and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Tenth Region within
ten (10) days from the date of this Order, what steps have been
taken to comply therewith.
IT IS FURTHER ORDERED that the election in Case No.
10-RC-1931 be set aside, and that the petition therein be, and
it hereby is, dismissed.
Chairman Farmer, dissenting:
I do not agree that a violation of Section 8 (a) (5) of the Act
has been shown in this case. I deem the evidence insufficient
to prove that the charging union in fact represented a majority
of the employees when the Respondent failed to grant it
exclusive bargaining rights.
In its first communication to the Respondent, the Union
acknowledged the propriety of holding a Board-conducted
election by suggesting either immediate recognition or an
election. By consent agreement with the Respondent the
election was subsequently held, under Board auspices, and
the Union lost, 6 to 13. The Board is now asked to disregard
this evidence of the Union's lack of strength, obtained by
secret ballot, and to accept instead the membership -application
5In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards solicited by union representatives during the organiza-
tional campaign and placed in evidence at the hearing.
It is not, nor could it be, claimed that on the foregoing facts,
alone, the Board should hold the Respondent guilty of refusing
to bargain with the majority representative of its employees.
Signatures to applications for union membership, obtained in
the course of personal discussions of the pros and cons of
collective bargaining, are unreliable as evidencing the em-
ployees' considered desires.6 It is for this basic reason that
the statute provides for Government-supervised tests of the
employees' choice, and it seems to me plain that, except in
extraordinary circumstances, we ought not substitute a doubtful
test for a conclusive one.7
In this case, the majority decision rejects the results of the
Board election only because two company officials asked some
employees, speaking to them individually, how they felt about
the Union. There is no finding that the Respondent or its agents
otherwise engaged in any prohibited activity.' I do not believe
that mere personal injury as to the union sentiments of some
employees constitutes in all instances violations of the Act.'
Assuming, however, that the Respondent did violate Section 8
(a) (1) of the Act in this very limited sense, it hardly follows
that Respondent thereby automatically made the results of the
later election meaningless and exposed itself to an order to
bargain with a union whose majority status rests on very
doubtful proof. That the questioning did not taint the election
is strongly indicated by the fact, as the Trial Examiner re-
ported, that Plant Manager Snow, when speaking to the em-
ployees, assured them "they could exercise their own judgment
in the matter." Accordingly, as there is no proof which I find
acceptable that the Union at any time represented a majority of
the employees, I would dismiss the allegation that the Re-
spondent unlawfully refused to bargain with it. 10
With the Section 8 (a) (5) element of the case, its major
aspect, failing of proof, all that remains are the several
instances of interrogation of employees by company officers.
Without expressing a considered view now, of the circumstances
in which the questioning of employees concerning their union
activities does or does not violate the proscription of Section
8 (a) (1) of the Act, I am satisfied that any infractions which
may have occurred here were insubstantial. Therefore, I do
not believe that it would effectuate the policies of the Act to
6Sunbeam Corporation , 99 NLRB 546, 550.
7G. H. Hess , Inc., 82 NLRB 463.
'The majority apparently also relies upon the Respondent's expressed preference to
operate without a union, but it is clear that expressions of opinion stand apart from unfair
labor practices . As to the other instances of 8 (a) ( 1) conduct alleged in the complaint,
the majority expressly dismisses the complaint.
9 See N. L. R. B. v. Winer, 194 F. 2d 370(C. A. 7).
10 Compare, Glass Fibre Moulding Co., 104 NLRB 383.
SOUTHEASTERN RUBBER MANUFACTURING CO., INC. 995
issue a cease and desist order in this case. I would therefore
dismiss the complaint in its entirety.
Member Murdock took no part in the consideration of the
above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 bargain collectively, upon request, with The
United Rubber, Cork, Linoleum and Plastic Workers
of America, CIO, as the exclusive bargaining representa-
tive of all our employees in the bargaining unit described
below, with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and
if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is:
All production and maintenance employees at our plant
in Athens, Georgia, excluding office -clerical employees,
guards, professional employees, and all supervisors as
defined in the Act.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self - organization , to form labor organizations , to join or
assist The United Rubber, Cork, Linoleum and Plastic
Workers of America, CIO, or any other labor organization,
to bargain collectively through representatives of their
choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection . All our employees are free to become or
remain members of this union , or any other labor organi-
zation.
SOUTHEASTERN RUBBER MANUFACTURING CO., INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered , defaced , or covered by any
other material.
322615 0 - 54 - 64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Pursuant to an amended charge filed on March 13, 1953, by United Rubber, Cork, Linoleum
and Plastic Workers of America, CIO , herein called the Union , the General Counsel of the
National Labor Relations Board, herein respectively called the General Counsel and the
Board, by the Regional Director for the Tenth Region (Atlanta , Georgia ) issued his complaint
of the same date against Southeastern Rubber Manufacturing Co ., Inc., herein called Respond-
ent, alleging that Respondent had engaged in certain unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies of the charge, com-
plaint , and a notice of hearing were duly served upon Respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in substance that Re-
spondent: (1) On or after May 12, 1952, refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit ; (2) since on or about the
same date has interrogated its employees concerning their membership in the Union and
coerced them by threats of reprisal or promise of benefit from lending assistance to the
Union; and (3 ) from on or about May 8 to about June 26 , 1952 , unilaterally granted certain
wage increases without consulting the Union.
On March 18 , 1953, Respondent filed its answer admitting the allegations of the complaint
with respect to the nature of its business but denying that it had engaged in any unfair labor
practices . Pursuant to notice a hearing was held at Athens , Georgia , on April 20 and 21, 1953,
before me , the undersigned Trial Examiner. The General Counsel , Respondent , and the Union
were represented by counsel and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon the issues,
was afforded all parties . At the conclusion of the hearing , the parties were advised that they
might argue orally before me and might file briefs with me by May 12 . The parties waived all
argument . On May 11, the General Counsel filed a brief.
Upon the entire record in the case and upon my observation of the witnesses , I make the
following findings of facts:
1. THE BUSINESS OF RESPONDENT
Respondent is a Georgia corporation having its principal office and place of business at
Athens, Georgia , where it is now and has been at all times relevant hereto engaged in the
processing of rubber and rubber products . In the normal course of its business it annually
purchases raw materials exceeding the value of $100,000 of which more than $25 ,000 repre-
sents purchases obtained from out-of-State sources. It annually makes sales exceeding in
value of the sum of $ 250 , 000 of which more than $100 ,000 represents sales to points outside
the State of Georgia.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber , Cork , Linoleum and Plastic Workers of America is a labor organization
admitting employees of Respondent to membership . It is affiliated with Congress of Industrial
Organizations.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The appropriate unit
The complaint alleges, the answer admits , and I find that all production and maintenance
employees of Respondent at its Athens , Georgia , plant, excluding office clerical employees,
guards , professional employees , 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.
SOUTHEASTERN RUBBER MANUFACTURING CO., INC. 997
2. The Union's majority in the appropriate unit
The parties are agreed that Respondent's payroll of May 12, 1952, showed a total of 13 or
15 employees in the unit found to be appropriate, depending upon whether one Guy Brooks and
one George Snow are included or excluded, Respondent contending that they should be included
and the General Counsel that they should be excluded. The evidence shows that on January 12,
1952, Respondent over the signature of Grady Oakes, its factory manager, posted a notice in
part as follows:
Starting Monday 1-14-52 Guy Brooks will start on supervising work....
There is no evidence that Brooks' duties changed between the dating of this notice and
May 12. The notice, together with other evidence in the record, persuades me and I find that
he was a supervisor within the meaning of the Act and was regarded as a representative of
management by the employees. He should be excluded from the appropriate unit.
The duties of George Snow seem to have been nonsupervisory in character. However, he
is a half brother of Plant Manager Ralph Snow. As such, it seems to me that he is identified
in the eyes of the employees with management and should be excluded from the unit. Making
these 2 exclusions, the total number in the appropriate unit on May 12, 1952, was 13. As is
hereafter seen, the Union's majority status would not be affected even were these 2 em-
ployees to be included in the appropriate unit.
There are in the record 10 membership-application cards signed on May 7, 1952, by em-
ployees in the appropriate unit. Respondent at the hearing did not attack the validity or the
genuineness of any of these cards, and I find as of May 7, 1952, that a majority of the employees
designated the Union as their representative for the purposes of collective bargaining.
3. The alleged refusal to bargain
On May 12, 1952, the Union by its representative , Talmadge Steinke, wrote Respondent
as follows:
Please be advised that the majority of the production and maintenance employees
(excluding supervisory employees) in the Athens, Georgia plant of the Southeastern
Rubber Company, Athens, Georgia have designated the United Rubber, Cork, Linoleum &
Plastic Workers of America, CIO, as the exclusive representative of all such employees
for the purpose of collective bargaining in respect to rates of pay, wages, hours of
employment and other conditions of employment.
It is the desire of the Union to institute negotiations with you in respect to rates of pay,
wages, hours of employment and other conditions of employment. To this end we request
that you indicate to us whether you will recognize the Union as such exclusive representa-
tive, and negotiate accordingly.
No other person or organization now represents a majority of such employees, and
you are hereby cautioned against entering into any contract, or any collective bargaining
or negotiations with any other person or organization presuming to act as agent for, or
in behalf of, any of such employees.
You are advised that in the event you fail or refuse to comply with our request, we
propose to file a petition with the National Labor Relations Board asking certification
of our Union as the exclusive bargaining agent for such employees.
An immediate reply will be appreciated.
Respondent did not reply to this communication. On May 26, accordingly, the Union filed
its petition for certification with the Board. A consent-election agreement was entered into
between Respondent and the Union on June 11. An election was held on June 26 which the
Union lost by a count of 6 for and 13 against the Union.
The Issue
The General Counsel contends that Respondent's failure to answer the Union's letter of
May 12 constituted a refusal to bargain. A substantial portion of his brief is devoted to an
attempt to show that Respondent's failure to answer the Union's demand could not have been
a good-faith doubt as to the Union's majority. The General Counsel, however, attributes to
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent a defense which the Respondent does not make for itself. Respondent did not file
a brief and I thus do not have the advantage of his contentions as to the failure to answer
the Union's letter. I do not find anywhere in the record, however, that the refusal to answer
is predicated upon Respondent's doubt as to the Union's majority. Aside from the contentions
of the parties or the lack of them, in this respect, it seems to me that the issue is quite
different. It is whether the Union made a proper demand to bargain.
It will be observed from the Union's letter that it claimed to represent a majority of the
employees, and asked for a bargaining conference, at the same time requesting that Respond-
ent indicate whether it would recognize the Union as a bargaining representative. The last
paragraph of the letter, however, states that if Respondent fails or refuses to grant the
Union's request, the Union will file a petition with the Board asking for certification. It
seems to me, and I find, that Respondent was thus given the option of recognizing the Union
on the basis of its card designations or on the basis of certification by the Board. A failure
to answer the letter, Respondent is advised, will result in the filing of a petition, followed, of
course by the usual election. All the Respondent had to do to comply with this letter was to
await the filing of the petition. This it did. The Union gave Respondent an option and Re-
spondent exercised it in favor of an election. Respondent was assured that if it did not
answer the letter, the majority would be determined in the most satisfactory manner, i.e.,
by an election under Board auspices. As has been stated, the result of the election went
against the Union. No further demand to bargain was made and, of course, none could be made
on the basis of the election results. The only question is whether Respondent by failing to
answer the letter of March 12 refused to bargain with the Union. I find that it did not. The
cases seem clear that an unequivocal demand at a time when a union has a majority in an
appropriate unit is a prerequisite to a finding of unlawful refusal to bargain.' The Union's
request, I find, was equivocal.
B. Interference, restraint, and coercion
Shortly after Respondent received the Union's letter of May 12, Plant Manager Ralph Snow,
according to his own admission,, called most of Respondent's employees to his office where he
interviewed them singly with respect to their union organization. He admitted while testifying
that he asked most of them how they felt about the Union, and told them that Respondent did
not favor the Union in the plant, although assuring them they could exercise their own judg-
ment in the matter. Several witnesses called by the General Counsel testified that, in addi-
tion, Snow said that if the employees worked with him rather than with the Union they would
get an increase in hours and wages and better working conditions. One or two witnesses
testified that Snow had on his desk a list of employees and said that he wanted them to go
over the list with him and check off those thought to be for the Company and those thought
to be for the Union.
Some of the employees also testified that Factory Manager Grady Oakes asked them about
the Union, whether for or against it, and stated that if the Union came in their working hours
would be shortened. Oakes was not called as a witness and the remarks attributed to him re-
main uncontradicted in the record.
Conclusions
I find that both Snow and Oakes questioned Respondent's employees concerning their
membership in and attitude toward the Union. The Board has held in cases too numerous for
citation that the interrogation of employees concerning their union federations are per se
interference, restraint, and coercion. Such interrogation is not within the so-called "free
speech" section of the Act, Section 8 (c). The rationale of the Board's decisions is that
this section is meant to protect an employer's expression of his opinion and not the eliciting
of employees' opinions. I credit the testimony of Snow, however, that he did not threaten
reprisals in the form of less wages and shorter work hours if the Union came into the
plant. Snow testified credibly, and I find that he had no list in his possession and knew of
the existence of none when he talked with the employees, that he made no mention of any
such list, and otherwise denied the testimony of General Counsel's witnesses as to state-
ments of him other than mere inquiries concerning their union interest.
'See: Kellow-Brown Printing Company, etc., 105 NLRB 28, and The Valley Broadcasting
Company, etc., 87 NLRB 1144.
BROWN ]RUCK AND TRAILER MANUFACTURING COMPANY, INC. 999
By questioning its employees with respect to their union membership or activity Respond-
ent interfered with, restrained, and coerced employees in the exercise of their rights under
Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act.
The complaint further alleges that Respondent from May 8 to June 26, 1952, unilaterally
granted wage increases to several of its employees without consulting the Union. The record
shows that certain wage increases were indeed granted during this period. Snow testi-
fied credibly, and I find, however, that these increases had been allowed by the Wage
Stabilization Board when the plant was opened on August 1, 1951, that they were made in
connection with that Board's authorization, that they had been intended from the first, and
were not made because of the advent of the Union in the plant. Assuming, however, that the
evidence warranted a different conclusion, such unilateral granting of wages, although viola-
tive of Section 8 (a) (1) of the Act, would not under the circumstances here constitute a
violation of Section 8 (a) (5), as being a refusal to bargain, since, as has been found above,
although the Union during this period did represent a majority of the employees no sufficient
demand for bargaining was made, and Respondent was under no obligation to bargain.
IV. THE EFFECT OF ,THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with
the operations described in section I, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent by questioning its employees concerning their
activity in behalf of the Union has engaged in unfair labor practices, I will recommend that
it cease and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its 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.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
4, Respondent did not fail or refuse to bargain collectively with the Union on May 12,
1952, or thereafter.
5. Respondent did not violate the Act by raising wages of the employees or by promising
to do so.
[ Recommendations omitted from publication. 3
BROWN TRUCK AND TRAILER MANUFACTURING COM-
PANY, INC., NEWEL MANUFACTURING COMPANY, INC.,
AND JOSEPH L. BROWN and UNITED AUTOMOBILE, AIR-
CRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO . Case No . 11-CA-500. August 26, 1953
DECISION AND ORDER
On May 26, 1953, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above - entitled proceed-
ing, sustaining the complaint , in part , as to Respondent, Brown
Truck and Trailer Manufacturing Company, Inc. ( hereinafter
106 NLRB No. 158.