Spengler-Loomis Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 19, 1953

102 N.L.R.B. 337 (N.L.R.B. 1953)

SPENGLER-LOOMIS MANUFACTURING COMPANY 337
The Board has previously emphasized that even a proper claim
of majority representation, under these circumstances, must be sup-
ported by the filing of a petition within 10 days to be valid. This
is so because the "mere naked claim of representation . . . places no
onus on the claimant to substantiate its claim and thus gives rise to
no inference of substantial interest." [Emphasis supplied.] 12 The
fundamental interest of this Board is thus in ascertaining that con-
tracts are not nullified without a clear and substantial contest between
claimants to majority representation at the time of the execution of
the agreement. In the instant case, however, the majority position
of the Intervenor had not even been questioned by a bare assertion
of majority status on the part of the Petitioner at the time of the
contract execution. Under these facts, and when the challenging
union fails to contest the majority position of the incumbent organi-
zation to even this limited extent, I do not believe that the processes
of the Act or the stability of bargaining relationships is aided by
striking down the contract and directing an election. Accordingly,
I would dismiss the petition in Case No. 8-RC-1814.
v General Electric X-Ray Corporation, supra.
SPENGLER-Loomis MANIIFACTURING COMPANY and INTERNATIONAL
UNION, UNITED AIITOMOBILE , AIRCRAFT, AND AGRICIILTURAL IMPLE-
MENT WORKERS OF AMERICA , C. I. O. Cases Nos. 13-CA- 915 and
13-RC-17X. January 19,1953
Decision and Order
On July 10, 1952, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also recommended that the
petition in Case No. 13-RC-1732 be dismissed. Thereafter, the Union
filed exceptions to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and
Members Styles and Peterson].
3 The Respondent did not file exceptions to the Intermediate Report. The Union
excepted only to the failure of the Trial Examiner to recommend that the election be set
aside.
102 NLRB No. 47.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The request of the Union for oral argument is denied, because, in
our opinion, the record and briefs adequately set forth the issues and
the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the following modification :
The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by announcing and granting increased vacations,
a profit-sharing plan, higher minimum wage rates, various improve-
ments in plant facilities, and other employee benefits, for the purpose
of effecting the results of the elections held on April 11, 1951, and
September 12, 1951. As no exceptions to these findings were filed
by the Respondent, we adopt them.2
The first election in the representation proceeding, held on April 11,
1951, was set aside by the Board on July 17, 1951, as a result of objec-
tions filed by the Union to conduct which we have found herein to
violate Section 8 (a) (1) of the Act.3 Meanwhile, during June 1951,
while the objections to the first election were pending, the Respondent
authorized Joseph Roeder, a profit-sharing consultant, to draw up a
profit-sharing plan for the employees at this plant. After the Board's
action on July 17, 1951, setting aside the first election, the Respondent
took the following steps to announce and effectuate the profit-sharing
plan.
On August 1, 1951, Roeder explained the profit-sharing plan to the
Respondent's employees through lectures given at the Respondent's
plant. On August 15, 1951, the Respondent was notified that a meet-
ing would be held by a representative of the Board on August 20,
1951, for the purpose of setting a date for a new representation elec-
tion. On the same- day an election was conducted among the
employees to select employee candidates for an advisory committee
of employee and management representatives, the function of this
committee being to approve the form of the profit-sharing plan.
At the meeting on August 20, 1951, the Respondent and the Union
agreed upon September 12, 1951, as the date for holding the second
Board election. On August 22, 1951, the Respondent conducted a
runoff election among the employees at the plant for the purpose of
choosing the two employee members of the advisory committee. On
2 The Trial Examiner also found that a series of meetings with groups of employees
in the Respondent's plant conducted by the Respondent 's agent, Roeder , ending an hour
before the election on September 12, 1951, were not in violation of Section 8 (a) (1) of
the Act. As no exceptions were filed to this finding , we also adopt it.
3 Spengler-Loomis Mfg . Co., 95 NLRB 243.
SPENGLER-LOOMIS MANUFACTURING COMPANY 339
August 23 , a formal order setting the date of the new representa-
tion election was issued by the Board. On August 27 the advisory
committee met and approved the profit-sharing plan and trust agree-
ment necessary to implement the plan, and on the following day the
trust agreement was signed . A few days later forms for the designa-
tion of a beneficiary under the profit -sharing plan were distributed
to the employees . On August 20, after the election date was agreed
upon , and on August 24 and 29, after the Board confirmed the date
of the election , the Respondent sent letters to all the employees which
referred to the profit -sharing plan as one of the benefits provided by
the Respondent , and asked the employees to consider these benefits
in deciding how to vote in the representation election. A letter sent
by the Respondent on September 10 formally announced that the
profit-sharing plan was in effect and reviewed its advantages.
Another letter distributed on September 12, the day of the Board
election , set forth that the profit-sharing plan was an example of the
type of benefit that could be obtained without a union.
We have found , in agreement with the Trial Examiner, that the
conduct of the Respondent in announcing and effectuating the profit-
sharing plan was for the purpose of affecting the results of the second
election. The Trial Examiner further found , however , that by pro-
ceeding to the election with knowledge of the foregoing conduct of
the Respondent, the Union had waived such conduct as a basis for
setting aside the election , and he therefore recommended that the rep-
resentation petition be dismissed.4
We find merit in the Union's exceptions to this finding . The Board
has consistently held that there can be no waiver of objections to an
election where , as here, the conduct which improperly interferes with
the employees ' freedom of choice continues to the eve of the election 6
We therefore find that Respondent 's conduct improperly interfered
with the employees ' freedom of choice in the election . We will order
that the election of September 12, 1951, be set aside and that a new
election be conducted by the Regional Director at such time as he
deems appropriate.
Order
Upon 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 the Respondent, Spengler-Loomis
Manufacturing Company, its officers, agents, successors, and assigns,
shall :
' In so finding, the Examiner relied on the Board decision in Denton Sleeping Garment
Mills, Inc., 93 NLRB 329. For the extent to which the holding in the Denton case has been
overruled , see the Board 's recent decision in The Great Atlantic cE Pacific Tea Company,
101 NLRB 1118
5 See, e. g., F. W. Woolworth Co., 101 NLRB 145T.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Promising, granting, or announcing benefits to employees dur-
ing the pendency of a representation proceeding for the purpose of
causing employees to vote against International Union, United Auto-
mobile, Aircraft, and Agricultural Implement Workers of America,
C. 1. 0.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the aforestated or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purposes of collective bargaining, or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at Rockford, Illinois, copies of the notice
attached hereto as an appendix.6 Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by the Respondent, be posted immediately upon receipt
thereof and be maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. The Respondent shall take reason-
able steps to insure that such notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for the Thirteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the September 12, 1951, election be, and
it hereby is, set aside; and that the proceeding in Case No. 13-RC-1732
be remanded to the Regional Director for the Thirteenth Region for
the purpose of conducting a new election at such time as he deems the
circumstances permit the free choice of a bargaining representative.
6 In the event that this Order is enforced by a 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."
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, we hereby notify our employees that :
SPENGLER-LOOMIS MANUFACTURING COMPANY 341'
WE WILL NOT promise , grant, or announce benefits to employees
during the pendency of representation proceedings for the purpose'
of causing employees to vote against INTERNATIONAL UNION,
UNITED AUTOMOBILE , AIRCRAFT, AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, C. I. 0.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist INTER-
NATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT , AND AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., or any other
labor organization , to bargain collectively through representatives
of their own choosing , to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities , except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
SPENGLER -LOOMIS MANUFACTURING COMPANY,
Employer.
By ------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed in Case No . 13-CA-915, by International Union, United
Automobile , Aircraft , and Agricultural Implement Workers of America , C. I. 0.,
herein called the Union, the General Counsel for the National Labor Relations
Board , by the Regional Director for the Thirteenth Region ( Chicago, Illinois),
issued a complaint dated April 9, 1952 , against Spengler-Loomis Manufacturing
Company, herein called the Respondent . The complaint alleges that the Re-
spondent has engaged in specified conduct violating Section 8 ( a) (1) and
Section 2 ( 6) and ( 7) of the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act. Copies of the complaint and charges were duly
served upon the Respondent , and the Respondent has filed an answer denying
the commission of the unfair labor practices alleged.
On May 20, 1952, the Board directed that a hearing be held on objections filed
by the Union respecting the Respondent 's conduct in Case No . 13-RC-1732, and
the Board also directed that the instant complaint and representation cases be
consolidated for hearing . Pursuant to notice , a bearing in this consolidated
matter was held at Rockford , Illinois , on June 9, 1952, before the undersigned
Trial Examiner . The General Counsel, the Respondent , and the Union were
represented by counsel , and all parties had full opportunity to be heard,-
to examine and cross- examine witnesses , and to Inttoduce evidence bearing
250983-vol . 102-53-23
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the issues. The parties had an opportunity to present oral argument at
the conclusion of the hearing, and they were given opportunity to file briefs
and proposed findings of fact and conclusions of law. The Respondent has
filed a brief which has been considered.
Upon the entire record in the case, and from my observation of the demeanor
of witnesses, I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Illinois corporation engaged in manufacturing various
mechanical products in Rockford, Illinois. The Respondent's shipments of
finished products in interstate commerce exceed $250,000 annually.
I find that the Respondent is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The Union filed a representation petition on January 9, 1951. An election was
held and was ultimately set aside when the Board sustained objections to the
conduct of the election filed by the Union. A second election was held on Sep-
tember 12, 1951, pursuant to Board order, and objections were again filed by
the Union. The present consolidated case involves conduct of the Respondent
during the course of the representation proceedings, which conduct the General
Counsel claims to have violated Section 8 (a) (1) of the Act and part of which
the Union claims to have constituted interference with the second election of
September 1951.
Following the filing of the representation petition in January 1951, Manager
Arthur Gillespie advised the employees by letter that "We have been approached
lately by Unions who want to organize and represent our people." The letter
also stated, among other things, that the Company "feels that we can best
solve our mutual proolems by working directly with each other without out-
siders" and the letter further announced that meetings would be arranged to
"exchange ideas" about plant working conditions. Gillespie thereupon held
meetings with all the employees, in small groups of 10 or 12, in which he invited
their complaints and suggestions covering the entire range of their employment
relationship. These meetings were held during the first 2 weeks of February,
the hearing in the representation case being scheduled for February 15, 1951.
This was the first time the Respondent had conducted such employee meetings.
Gillespie testified that the Union had distributed literature at the time at-
tributing "all kinds of disagreeable things" to the Respondent and that he
called the meetings "to find out what these were."
On March 13, 1951, the Board issued its Decision and Direction of Election
(unreported). Beginning March 14 and lasting through March 26, Gillespie
held a second series of conferences with employees, similar to those of February.
This time Gillespie reviewed with the employees the various complaints and
suggestions they had made in the February meetings, which matters he had
investigated meanwhile, and he announced at the meetings what action the
Respondent had taken since the first meetings concerning some of the matters
raised by them. Thus, Gillespie advised the employees, among other things,
SPENGLER-LOOMIS MANUFACTURING COMPANY 343
that minimum starting rates had been raised ; that specific piecework inequities
were corrected ; that vacation benefits would be increased for employees having
more than 1 year and less than 5 years longevity . to be effective in June 1951;
that various physical improvements, such as water fountain, additional smoking
areas, and toilet facilities, had been installed ; that the Respondent had dis-
charged a supervisor for using abusive language , the employees having also
complained about this matter in the February meetings . Gillespie also ex-
plained to the employees for the first time how the Respondent 's existing
seniority system operated, but without making any changes in the system ;
he also told employees that the Respondent had received a Government contract,
this being the first time he had advised the employees of the Respondent's
contracts.
On April 9, 1951, 2 days before the scheduled date of the first election, the
Respondent sent its employees a second letter referring to the fact, among other
things, that the Respondent had acted upon each suggestion made by the
employees in the aforementioned February meetings.
The election was held on April 11, 1951, the Union receiving less than a
majority of the valid votes cast, and on April 13, 1951, the Union filed objections
to the conduct of the election. On May 17, 1951, the Regional Director issued
his report on the objections, sustaining the Union's claim that the Respondent
had interfered with the employees' free choice in the election and recommending
that the election results be set aside and that a new election be conducted.
A week later, on May 25, 1951, the Respondent filed exceptions to the Regional
Director 's report on objections , and on July 17, 1951 , the Board issued a Supple-
mental Decision and Order sustaining the Regional Director's report on objec-
tions and adopting his recommendation to set aside the election results and to
direct a new election at an appropriate time (95 NLRB 243).
Meanwhile, on or about June 15, 1951, the Respondent sought a meeting with
Joseph A. Roeder, a profit-sharing consultant, for the purpose of establishing a
profit-sharing plan for the Respondent's employees. And, within a week, the
Respondent authorized Roeder to work out a "profit-sharing and retirement
plan ," which Roeder did. The plan adopted by the Respondent provided for
employee and management contributions , with an officer of the Respondent to
be trustee to administer the plan's fiscal operations. Coverage under the plan
was optional for the present employees and compulsory for new employees and
there also was a provision permitting the Respondent to discontinue the plan
on 30 days' notice.
On or about August 1, 1951, the plan was presented to the employees through
a series of lectures by Roeder . And the following day the Respondent distributed
"Designation of Intent" slips upon which the individual employees might indi-
cate their desires to participate in the program. A majority of the employees
decided to join the plan . The plan provides for an "Advisory Committee" con-
sisting of the trustee and two employees and two management representatives
and Plant Manager Gillespie appointed an employee committee to conduct an
election on company property for the purpose of selecting the employee repre-
sentatives on the advisory committee. This election was held on August 22,
1951. On August 27 and 28, 1951, the advisory committee gave its final approval
to the plan and the required trust agreement was executed.
Representatives of the Regional Office, the Respondent, and the Union arranged
at a meeting on August 20, 1951 , that the second election , which the Board
had earlier stated it would direct at a then undetermined date , would be held
on September 12, 1951. Immediately after this August 20 meeting, the Re-
spondent mailed a leaflet to its employees. Referring to the new election date,
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the leaflet stated that "it is the policy of your Company to seek improved benefits
for its employees at all times." The leaflet thus mentioned such matters as
"seniority," a "generous vacation plan," and the "profit-sharing plan ," and it
also stated that present benefits "will be maintained. Not only that-we confi-
dently expect them to increase." In conclusion the leaflet announced that:
The election on September 12 will decide whether a union is to be allowed
to upset our relationships or whether we will remain free to go on building
good things for ourselves without the meddling and interference of out-
siders. We believe that everyone here can enjoy more happiness and greater
profit without a union. We sincerely hope that you think the same.
On August 23, 1951, this Board issued its formal order directing that the second
election be held and on the following day the Respondent mailed another leaflet
to its employees, stating in part that :
We have made definite arrangements for profit sharing and have set up a
plan which is many times better than the pension plans which the Union is
struggling to get [in union shops].
On August 29, 1951, the Respondent mailed its employees another leaflet, re-
ferring again to the forthcoming election and to the various benefits enjoyed
by the employees, including the profit-sharing program. "All of these good
things," the leaflet stated, "have been provided voluntarily by the company with-
out strikes or loss of pay.... In considering how to vote, we hope you will
think carefully about the many real benefits now provided by the company as
compared with the loose promises made by Union. . . . If we face the truth
squarely, it should be plain to us all that we are much better off without a union."
And on September 10 and 12, 1951, the Respondent issued other bulletins to the
employees stressing the salutary nature of their profit-sharing plan and express-
ing the Respondent's appreciation for the employees' "attitude and understanding
in the past" and stating its knowledge that the Respondent "can count on your
co-operation in working out the Profit Sharing program which lies ahead." The
September 12 leaflet also stated that "Our wage and benefit and profit sharing
program has been developed without the help of outsiders."
By letter on September 10, 1951, the Union requested Plant Manager Gillespie
to debate the election issues with the Union on election day in a vacant lot near
the plant. About this same time the Union distributed its own throwbill attack-
ing the aforementioned profit-sharing plan. Gillespie did not reply to the Union's
request for debate and the Union held its own one-sided debate on the day of the
election. That same afternoon, in meetings ending about an hour before the elec-
tion was scheduled to be held, Roeder addressed groups of employees in the plant
to the effect that "he knew an election was coming up and that he had nothing
to do with it in any way, but that he felt they should be fully informed about
his plan after having been given misleading information about it." Roeder was
referring to the Union's attack on the plan.
The Union again failed to obtain the necessary number of votes to prevail in
the election of September 12, and it filed objections claiming interference by the
Respondent in this second election.
The General Counsel adduced testimony to the effect that the Respondent also
sponsored and defrayed the costs of a company picnic in August 1951 and that
the Respondent also agreed for the first time to sponsor a bowling league, at an
expenditure of about $40, with Gillespie inaugurating the season by bowling the
first ball on the night of the September 12 election. Gillespie testified that the
Respondent customarily had held Christmas parties for its employees but that,
at the employees' request, it sponsored the picnic instead. As to bowling,
SPENGLER -LOOMIS MANUFACTURING COMPANY 345
Gillespie testified that the Company had refused to sponsor a bowling team in
previous years because of the limited participation by employees in the earlier
situations , but that it went along with the employees' desires in 1951 because
employee participation was substantially increased . Gillespie denied any con-
nection between the pending representation proceeding and the Respondent's
sponsorship of the picnic and bowling league.
Gillespie testified that the Respondent had considered various profit -sharing or
pension plans in previous years3 but that the Respondent had never before
advised the employees that the matter was under consideration at the time.
Gillespie also testified that the Respondent had actually decided in 1950 to grant
the additional vacation benefits, although Gillespie admittedly did not advise
employees of these additional benefits until his second series of employee meet-
ings in March 1951 . Concerning improvements in physical facilities , e. g., drink-
ing fountains , toilet facilities , etc., Gillespie testified that the Respondent had
always had a plant-improvement program , but he also stated that the employees'
complaints concerning these matters at the February meetings caused the
Respondent to expedite the installation of these particular items.
Conclusions
13-CA-915
The charge in this case was not filed and served until September 18, 1951,
hence the operative period under Section 10 (b) does not cover the period more
than 6 months before that date . However, the second series of meetings which
began on March 14 did not end until March 26, and it was at these meetings
that Gillespie first announced the additional benefits and changes which the
Respondent had made and intended to put into effect. I am satisfied that the
Respondent made these announcements and later put into effect various other
items-the profit-sharing plan , increased vacation benefits, the picnic, the bowling
team , etc.-all for the purpose of causing the employees to vote against the
Union in the representation case.
Referring to the fact that the Union , during the organizational campaign,
had itself charged the Respondent with "disagreeable [albeit unidentified]
things," as Gillespie testified , the Respondent contends that it was particularly
privileged to hold the aforementioned meetings and to issue the various letters
and other communications to its employees , for the purpose of ascertaining the
causes of employee dissatisfaction and in order to take whatever action it con-
sidered advisable to correct or eliminate such causes and then to advise the
employees of corrective action taken . Were this a novel question under the
Act, much might be said to support this contention , even respecting such conduct
during the pendency of representation proceedings , and the argument could be
developed to the effect that in situations like the present case both the union and
the employer are seeking the employees ' favor at the polls and that as a union
is permitted to promise benefits through the prospect of future collective action-
should the union prevail in an election , so should the employer be similarly
permitted to show, by the granting of economic benefits, that a labor organiza-
tion is not necessary to promote the employees ' welfare. But the issue implicit
in the Respondent 's contention is hardly one of first impression and I accordingly
find that by announcing and effecting employment benefits during the pendency
of representation proceedings on and after March 18, 1951 , for the purpose of
I The Respondent claims that its fiscal year ends August 31 and that it installed the
profit -sharing plan before that date in 1951 In order to have such item included within
its 1950-1951 tax year.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affecting the results of the elections, particularly in regard to its action concern-
ing vacations, profit sharing, and minimum wage rates, the Respondent has
violated Section 8 (a) (1) of the Act. Pacific Moulded Products Company, 99
NLRB 93; Rehrig-Pacife Company, 99 NLRB 163; Mooresville Mills, 99 NLRB
572.
I do not accept the General Counsel's contention that because the Respondent
did not accept the Union's challenge to debate the election issues the Respondent
additionally violated Section 8 (a) (1) by conducting the Roeder meetings
with employees on the day of the September election. Apart from other con-
siderations, there is no showing that the Union requested an opportunity to
address the employees on company time and premises. Silver Knit Hosiery
Mills, Inc., 99 NLRB 422. Compare Metropolitan Auto Parts, Inc., 99 NLRB
401; Bonuait Teller, Inc. v. N. L. R. B., 197 F. 2d 640 (C. A. 2). This is not to
say, however, that I would have found a violation even had such opportunity
been denied.
13-RC-1732
Relying on the fact that the Respondent's conduct concerning the establishment
and contemporaneous announcements of the profit-sharing program (which, the
parties agreed at the hearing, was the principal objection in the representation
case) was known to the employees and the parties well in advance of the election
and that the Union in fact made this profit-sharing plan a major issue in the
election, the Respondent claims, in effect, that the Union has waived such conduct
as a basis for setting aside the election results. The Board's decision in Denton
Sleeping Garment Mills, Inc., 93 NLRB 329, cited by the Respondent, sustains this
contention and I shall accordingly recommend dismissing the petition in the
representation case.2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in section III, above, occurring in
connection with the Respondent's operations described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and territories, and such of them as have been found to constitute
unfair labor practices tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies 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. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
2. 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 in this volume.]
2 The "waiver" or "acquiescence" doctrine which removes certain conduct as a basis
for objections in a representation case does not also operate to remove such conduct from
the purview of an unfair labor practices proceeding and order.