Sportspal, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1974

214 N.L.R.B. 917 (N.L.R.B. 1974)

SPORTSPAL, INC.
Sportspal , Inc. and United Steelworkers of America,
AFL-CIO-CLC. Cases 6-CA-6889 and 6-
RC-6565
November 12, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 20, 1974, Administrative Law Judge Eu-
gene F. Frey issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, the General Counsel filed cross-
exceptions and a supporting brief, and Respondent
filed an answering brief to the General Counsel's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegaged its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order 3 as modified here-
in.
The Administrative Law Judge finds that the state-
ments by Respondent Vice President Robert R. Mil-
liken that, if the Union got into the plant, "things
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The General Counsel has excepted to the Administrative Law Judge's
finding that the union authoriztion cards of employees John Karnes, Gary
Salusky , Lonnie Felix , Raymond D Yengling, and Mark Jackson were not
valid as proof of majority status As the Union has obtained sufficient valid
cards to establish its majority status even excluding these cards , we find it
unnecessary to pass on these exceptions
Respondent has requested special leave to file an additional brief assert-
ing that since the hearing in this case its plant has been totally destroyed
Leave to file the additional brief is hereby granted The General Counsel's
motion to strike this brief is hereby denied In its additional brief Respon-
dent states that the plant was destroyed by fire September 6, 1974 Respon-
dent further states that the plant will not be reconstructed nor its business
operations resumed until , at the very earliest , January or February 1975 It
asserts that these circumstances constitute additional reasons for the Board
not to adopt the Administrative Law Judge 's recommendation that a bar-
gaining order be entered in this matter We find no merit in Respondent's
contention as the temporary interruption of operations is not a sufficient
basis for the denial of a bargaining order where otherwise warranted
3 For the reasons stated by the majority in Steel-Fab, Inc, 212 NLRB 363
(1974), we do not adopt the Administrative Law Judges finding that Re-
spondent violated Sec 8(a)(5) of the Act , but rather enter a bargaining order
as a remedy for the serious unfair labor practices committed by Respon-
dent We shall modify the Administrative Law Judge 's recommended Order
and notice accordingly Member Fanning , for the reasons stated in his dis-
sent in Steel-Fab, would find the violation of Sec 8 (a)(5) and base the
bargaining order on that section as well as Sec 8(a)( 1)
917
would be different, you could not move around the
shop in different jobs as you now do," and Blue
Cross and Blue Shield benefits "would not be the
same," were not coercive or violative of the Act. The
General Counsel excepts. We find merit in this ex-
ception. The Administrative Law Judge finds these
statements were predictions of what might happen as
a result of bargaining with the Union and did not
indicate changes that would be made by Respondent
to the detriment of employees if the Union came into
the plant. However, Respondent did not tell the em-
ployees that the loss of benefits would not be auto-
matic and would occur only if Respondent and the
Union so agreed through collective bargaining. In
our opinion, these statements could reasonably be
regarded by employees as a threat of more onerous
working conditions and of a reduction in benefits if
they designated the Union as their collective-bar-
gaining representative. The statements therefore re-
strained and coerced employees in the exercise of
their statutory rights in violation of Section 8(a)(1) of
the Act.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Sportspal,
Inc., Emlenton, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order as herein modified:
1. Insert in paragraph 1(a) after the words "re-
moval or closure of its plant," the words "with more
onerous working conditions,".
2. Delete paragraph 1(c) and reletter the existing
paragraphs accordingly.
3. Add the following to the end of paragraph 2(b):
"The appropriate unit is:
All production and maintenance employees at
our plant in Emlenton, Pennsylvania, excluding
all office clerical employees, guards, profession-
al employees, and supervisors as defined in the
Act."
4. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the petition filed in
Case 6-RC-6565 be, and it hereby is, dismissed.
4
N L R B v Gissel Packing Co, 395 U S 575, 618 (1969), The Great
Atlantic & Pacific Tea Co, 194 NLRB 774, 777-778 (1971)
214 NLRB No. 143
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
the exclusive bargaining representative of all our
employees in the appropriate unit 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. The
appropriate unit is:
WE WILL NOT unlawfully interrogate our em-
ployees regarding their union sentiments or ac-
tivities.
WE WILL NOT threaten our employees with a
removal or closure of our plants, with more on-
erous working conditions, with loss of employ-
ment for them, if they vote for United Steel-
workers of America, AFL-CIO-CLC, in a
Board-conducted election, or if it wins such
election.
WE WILL NOT threaten our employees with
loss of benefits if said Union wins such election,
or promise them benefits if it loses the election.
WE WILL NOT give our employees benefits to
persuade them to vote against said Union in an
election.
WE WILL NOT promise our employees benefits
in negotiations if they reject said Union in an
election and form an independent or company
union.
WE WILL NOT grant our employees benefits to
induce them to form an independent or compa-
ny union.
WE WILL NOT assist our employees by gifts of
company time, equipment, and use of our plant
to form an independent or company union.
WE WILL NOT negotiate with or recognize
such independent or company union of our em-
ployees, and grant employees benefits during
such negotiations, while a representation pro-
ceeding brought by the above-named or any
other union is pending before the Board.
WE WILL NOT dominate or interfere with the
formation or administration of, or contribute fi-
nancial or other support or assistance to, any
independent or company union which may be
formed by our employees.
WE WILL withdraw and withhold all recogni-
tion from, and cease to negotiate in any manner
with, the company union formed by our employ-
ees on September 13, 1973, but in so doing WE
WILL NOT take any action to rescind, abandon,
or vary any economic benefit or any beneficial
change of terms or conditions of employment
granted to employees during our recognition of
and dealing with said company union.
WE WILL bargain collectively, upon request,
in good faith with the above-named Union as
All production and maintenance employees at
our plants in Emlenton, Pennsylvania, exclud-
ing all office clerical employees, guards, pro-
fessional employees, and supervisors as de-
fined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed to them by Section
7 of the Act, except to the extent that such rights
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized in the proviso
to Section 8(a)(3) of the Act.
All our employees are free to become or remain, or
to refrain from becoming or remaining, members of
United Steelworkers of America, AFL-CIO-CLC, or
any other labor organization.
SPORTSPAL, INC.
DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Administrative Law Judge: This case
was tried before me on due notice to all parties on Decem-
ber 5 and 6, 1973, and January 21 and 22, 1974, at Frank-
lin, Pennsylvania, with General Counsel and Respondent
appearing by counsel, the Union represented by a staff
representative, and the Company Union by an employee,
after pre-tnal proceedings in compliance with the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq. (herein called the Act). In Case 6-CA-6889, the issues
are whether Respondent, Sportspal, Inc., (1) by various ac-
tions assisted, dominated, and interfered with the adminis-
tration of the Company Union in violation of Section
8(a)(2) of the Act; (2) coerced and restrained employees in
exercise of their Section 7 rights by interrogation, various
threats of reprisal, and promises and grants of benefits;
and (3) refused to bargain collectively with the Union, after
it obtained majority status in an appropriate unit of em-
ployees, in violation of Section 8(a)(5) of the Act.'
In Case 6-RC-6565, the Union filed its petition for certi-
1 The issues arise on a complaint issued October 31, 1973, by the Acting
Regional Director of Region 6, and amended at the trial, after Board mves-
t1gauon of charges filed by the Union on August 10 and September 20,
1973, and answer of Respondent denying the commission of any unfair
labor practices
SPORTSPAL, INC
fication on August 6, 1973. On August 10, the day the
Union filed its first charge in the Case 6-CA-6889, the
Union formally requested the Regional Director to pro-
ceed with the representation case, stating that "no objec-
tions to the election (to be) held in this case on September
18, which would be based upon conduct occurring prior to
the filing of the petition, would be admissible in this case,
i.e., the representation case." The parties agreed on August
23, 1973, to a consent election, which was held on Septem-
ber 18, 1973. Out of 31 eligible voters, 14 voted for the
Union, 15 against, with 2 ballots challenged, enough to
affect the results. The Union filed objections to conduct
affecting the results on September 20, 1973, charging the
Employer with conduct essentially coextensive with that
charged as violations of Section 8(a)(1) and (2) in Case
6-CA-6889. By report and Order of October 31, 1973, the
Regional Director found that the issues raised by the ob-
jections and challenged ballots were substantial enough to
be resolved by record testimony in a formal hearing, and
ordered that these issues be consolidated with the issues in
Case 6--CA-6889 for presentation of testimony and resolu-
tion by findings of an Administrative Law Judge.
At close of testimony in the consolidated cases, all par-
ties waived oral argument, but Respondent moved to dis-
miss the complaint on the merits in Case 6-CA-6889. That
motion is now disposed of by the findings and conclusions
in this Decision. A written brief filed by Respondent has
been carefully considered in the preparation of this Deci-
sion which was signed and released by me on May 9, 1974,
for distribution to the parties in the usual course.
Upon the entire record in the consolidated cases , obser-
vation of witnesses on the stand, and consideration of ar-
guments during the trial and written argument of Respon-
dent thereafter, I make the following.
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS AND STATUS OF THE UNION
Respondent is a Pennsylvania corporation with its prin-
cipal offices and places of business located in Emlenton,
Pennsylvania, where it manufactures and sells aluminum
canoes and boats. In the 12 months preceding issuance of
this complaint, Respondent had a direct inflow of goods
and matenal valued in excess of $50,000. Respondent ad-
mits, and I find, that at all times material herein it has been
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The Union and the Company Union are labor organiza-
tions within the meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES 2
A The Union Campaign
The Union began to organize the workers in
Respondent 's plant late in July when union authorization
cards were procured by employee August V Durnell and
2
All dates stated in this Decision are in 1973, unless otherwise specifically
noted
919
distributed to employees in and out of the plant by em-
ployees Daniel G. McCoy and Douglas Hart. By August 1,
at least 22 employees had signed such cards, which wefe
turned in to the Union on August 4, and on the basis there-
of the Union filed its petition for certification on August 6
as found above.' On the same date the Union sent Respon-
dent a letter, addressed to Vice President Robert R. Milli-
ken, claiming majority status by virtue of signed authoriza-
tion cards of employees in said unit, and requesting recog-
nition of the Union as the exclusive bargaining agent of
such employees, offering the signed cards for examination
by a third party to verify majority status, and advising of
the filing of the representation petition "to protect our legal
rights in the event you refuse to recognize us on the basis of
the proposed card check," and that the Union would with-
draw its petition if Respondent recognized it as agent of
the employees. Respondent received the letter a day or two
later, but did not reply to it directly, instead agreeing to a
consent election and reacting to the demand by other con-
duct found hereafter.'
On the issue of majority status of the Union, the record
contains 29 authorization cards signed by employees in the
unit aforesaid on and after August 1, 1973. The cards in
terms are (1) a request for and acceptance by the signer of
membership in the Union, and (2) an authorization to the
Union to act as collective-bargaining representative of the
signer in the terms and for the purposes set forth in Section
9 of the Act. The signers of all the cards (except Mark E.
Jackson who did not testify) were subjected to searching
cross-examination as to the circumstances of their execu-
tion of the cards which was designed to elicit all outside
statements and events heard and witnessed by them which
may have played a part in their understanding of the pur-
pose, meaning, and intended use of the card and any obli-
gation imposed on them when they signed it. On the basis
of this examination, and careful observation of each signer
during testimony about the card, I am satisfied and find
that 19 employees 5 voluntarily signed cards on August 1
and clearly understood at the time of signing, both from
reading its wording, as well as surrounding circumstances,
that they were thereby designating the Union to act as their
bargaining agent in dealings with Respondent. I find no
credible proof that these signers were induced to sign by
any representation that the card would be used only for the
limited purposes of an election,6 or that the usual initiation
fee charged by the Union would be waived if they signed at
3In Case 6-RC-6565 , the Employer and Union stipulated and agreed
that all production and maintenance employees at Respondent's plants in
Emlenton, Pennsylvania , excluding all office clerical employees , guards,
professional employees , and supervisors as defined in the Act constituted an
appropriate unit The Respondent now admits, and I find that said unit is
appropriate for such purposes of collective bargaining within the meaning
of Sec 9(b) of the Act
The above facts are found from credible and uncontradicted testimony
of various witnesses of General Counsel , stipulations of the parties, and
documentary proof
5 Fred Vanistendael, Frank Shaffer , William R Best , Marie Edinger, Bet-
ty Baum , Charles Shaffer , Sr, Charles Shaffer , Jr, August V Durnell, Ray-
mond D Hart , Daniel G McCoy , Leroy Steiner , Larry Bartley , Chris Run-
yan, John Link , Larry Weckerly , Craig Gothe , Roger Douglas , Lucy Blair,
and Rick J Barger
6 Cf N L R B v Gissel Packing Co, 395 U S 575, 584, 606 (1969)
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
once and the Union won the election.' I find that these
cards are reliable evidence to prove majority status. The
same conclusion is reached as to cards signed by four em-
ployees on later dates but before the election.8 I conclude
and find that as early as August 1, and ever since, the
Union was and has been freely chosen as their bargaining
agent by a majonty of at least 19 out of a total of 31 eligi-
ble employees in the unit aforesaid, and that from and
after that date the Union was and has been the exclusive
bargaining agent of all such employees within the meaning
of Section 9(a) of the Act .9
B. Respondent's Reaction to the Advent of the Union
I find from credible evidence of Shop Foreman Robert
Stewart that, as soon as Milliken received the Union's de-
mand for recognition in the week of August 6, he gave
Plant Manager Nelson Cotherman and Stewart instruc-
tions to carry on operations as usual, ordered them not to
ask employees about their union sentiments or activities,
make any threats or promises to them, and not to take any
action against them even if their work fell off. After that
employees continually talked among themselves at the
plant about the Union and often asked Stewart his views
about a union, and sought his advice on what they should
do about it, but he told them only that they alone had to
make the decision whether to join or not join a union.
On August 8, while employees Gothe and Best were
teaching employee Barger how to build canoes by shaping
sheet aluminum over wooden forms, they needed straps to
tie the metal down to the form, so they asked Cotherman
for straps. He told Gothe to get straps from a truck. Gothe
found they were rubber straps and not strong enough to
hold the metal down firmly, so they complained to Cother-
man about it, asking for nylon straps. He told them he
would make some other straps with rings on them, while
they were waiting for an order of nylon straps to be deliv-
ered. In giving him the temporary straps (either rubber or
nylon), Cotherman commented "you will not be needing
these much longer." The builders used the temporary rub-
ber or nylon straps until nylon replacements came in and
have used the latter ever since in building canoes.10 In light
of the circumstances involving the need for and use of
straps, I find no coercive connotations or violation of the
Act in Cotherman's remark that the builders would not be
needing the temporary straps much longer, since this is
clearly consistent with the fact that Respondent was using
7 Cf NLRB v Savair Mfg Co, 414 U S 270 (1973)
8 Goldie Lobaugh, Raymond A Hogue, Delton Hindman , and Sara Dau-
benspeck
9 In reaching this conclusion I do not rely on proof of the circumstances
of signing of cards by John Karnes, Gary Salusky, Lonnie Felix, and Ray-
mond D Yenglmg, which leaves grave doubt whether these workers under-
stood from all sources, including a reading of the card, the real purpose and
effect of the cards I also reject the card of Mark E Jackson who was not
produced to testify as to the circumstances of his signing , and the card of
Crandal Taylor who, while understanding the meaning of the card as writ-
ten, was not a proper member of the unit aforesaid, because of his known
status as a student worker employed only for the summer See Pacific Tile
and Porcelain Co, 137 NLRB 1358, 1365 (1962)
10 1 find these facts from a composite of credible evidence of Cotherman,
Barger, and Best Testimony of any of these witnesses at variance therewith
is not credited.
the old and less satisfactory rubber straps until the new
and better nylon straps were received, and hence it is more
likely that the workers received this impression from the
remark, than that it conveyed some vague threat to their
jobs, particularly in the absence of credible proof that Bar-
ger, Best , or Gothe were then active in the union campaign,
that Respondent had specific knowledge of their union
sentiments, or that they or any other employees were dis-
charged during the campaign, and in light of the fact that
the builders have since continued using nylon straps in
building canoes. I recommend dismissal of the August 8
charge of violation of the Act contained in paragraph 7(a)
of the complaint, on which this testimony appears to have
been adduced.
Sometime in the week of August 6, Cotherman told em-
ployee Hart in the plant that Milliken had received the
letter from the Union, and he (Cotherman) did not know
what Milliken would do about it, whether he would move
the plant or shut it down. Hart replied that if it were
moved, he hoped it would not be too far away because he
could not afford to drive too far to work.
On the afternoon of August 8, Cotherman had a talk
with employees McCoy, Charles Shaffer, Jr., and Karnes in
which he told them about receipt of the union letter.
Karnes asked about the progress of the new building being
constructed by Respondent adjacent to the plant, com-
menting that the foundation hole had been excavated but
construction appeared to be stopped. He asked if the union
campaign had anything to do with it. Cotherman replied
that Karnes might not have his job much longer, that Mil-
liken would close the plant and "fill in the hole," and that
construction was shut down "until after this fight." McCoy
commented that this was kind of "dumb" because the
plant was just starting to build a new type of boat. Cother-
man replied that this was a bad time for the union cam-
paign because the plant had orders for many canoes. Since
the election, construction has been resumed on the new
building, and it was nearly finished at the time this trial
started. ' I find Respondent coerced employees in violation
of Section 8(a)(1) of the Act by Cotherman's remark to
Hart indicating the possibility that Milliken might shut
down the plant or move it, since receipt of the union de-
mand, and his comment to the other three employees that
one might shortly lose his job, as Respondent would close
the plant and "fill in the hole" for the new building, which
was a clear threat that expansion of the plant was stopped
and it might be closed with loss of jobs because of the
campaign.
On August 20, Foreman Stewart distributed to workers
at the plant a printed statement from Milliken advising
them that the election case pending, and that the Company
would attend a meeting with union agents at the Board's
Regional Office to prepare for an election. It also set out
company benefits given in the past, the company belief
that the Union could not do any more for the workers than
they could do for themselves at the plant. It announced
that Milliken would speak to them in the near future about
the facts, that they should consider what a union might
11 The above facts are found from a composite of credible testimony of
McCoy. Shaffer, Jr, Hart , Vanistendael, and Cotherman Testimony of any
of these witnesses at variance therewith is not credited
SPORTSPAL, INC.
cost them in dues, initiation fees, possible loss of wages due
to strikes, etc., and asked them to keep an open mind until
Respondent told its side of the story. I find nothing coer-
cive in this statement but only a legitimate exercise of free
speech within the meaning of Section 8(c) of the Act.
I find from uncontradicted testimony of Hogue that in
the third week of August Hogue asked Milliken in his of-
fice for leave of absence of a month without pay in Octo-
ber for a hunting trip. Milliken replied that if the Union
did not get into the plant, Hogue could have the leave, but
if the Union won he could not see any way to give it to
him. Hogue replied that "it looks like I will have to quit."
Milliken said he hated to see Hogue do that. They then
discussed guns and hunting for a while, after which Milli-
ken asked what the "main gripe" was at the plant. Hogue
repled it was wages and working conditions. Milliken
asked what Hogue's gripe was, and he replied that it was
shortage of fans in the paintroom where he worked. In
Hogue's presence, Milliken phoned Cotherman to ask the
size of that room. He then phoned some company about
fans, and advised Hogue the man there would check on the
fans. The man called back shortly, and Milliken told him
to send some nonexplosive type fans to the plant. Hogue
heard this. The fans were delivered to the plant later, but
were not installed until after the election. Hogue was given
the month's hunting leave without pay in October that he
had asked for. Milliken' s remarks clearly conditioned the
grant or denial of hunting leave to Hogue on the outcome
of the election, hence were a violation of Section 8(a)(1)
because they were well calculated to appear to Hogue as a
promise that grant of that customary benefit depended on
employees' rejection of the Union, and a threat that would
be denied if the Union won.12 I also find that Respondent
violated the Act by Milliken's interrogation of Hogue
about his and other employees' complaints, when followed
by instant action indicating that Milliken was trying to sa-
tisfy at least Hogue's gripe about lack of fans. The latter
action amounted to a prompt promise and grant of benefit
well calculated to induce a vote against the Union, which
in itself violated the Act.13
On August 21, Milliken sent all employees a letter invit-
ing them to a meeting at a Sheraton Inn Motel in nearby
Clarion, Pennsylvania, for a discussion on the "current sit-
uation," suggesting that "due to the very serious matter
that now confronts us," "it is time that we start talking with
each other and try to resolve any problems which we might
have without the interference of an UNKNOWN third party."
He suggested workers bring their wives, and said that after
the meeting there would be food and drinks for them. That
meeting was canceled when management discovered few
workers would attend, and was rescheduled for the evening
of August 22 at a local schoolhouse.
About 10-15 workers attended the schoolhouse meeting.
12 In speeches made by Milliken to the workers in September, as noted
hereafter , he repeatedly mentioned grant of leave at the start of hunting
season as an annual benefit enjoyed by by the workers
13 These conclusions are not altered by credible testimony of Stewart indi-
cating that new fans for the plant room had been on order for some time
before August, because of State safety requirements Milliken did not dis-
close these facts to Hogue in their talk, hence only Milliken 's remarks noted
above are pertinent in determining the impact of all his conduct on Hogue
921
At the outset Milliken expressed his view that "if we can
re-establish our communications we can handle any situa-
tion that might arise without the interference of an un-
known third party." He then detailed meetings held in the
representation case leading to an agreed election on Sep-
tember 18. He then gave his views of the Union as a large
commercial organization which used workers' dues for the
benefits of its leaders, made promises it could not keep
about increased wages, and the possibility of strikes to en-
force union demands, which would lose wages for workers.
He outlined in detail the wages and other benefits Respon-
dent was giving the employees, using a blackboard to write
down and add figures for each benefit, to show the total
value of all their benefits. He also showed how wages of
employees had been increased each year by Respondent.
During a question and answer period, Milliken advised
that Respondent could not give a raise at that time under
the rules of a Presidential Wage Board. He also impressed
on workers the fact that the owners of Respondent, Mr.
Breen, was plowing back his profits into improvement and
expansion of Respondent, rather than investing it in securi-
ties which might earn him more money. He ended his talk
by reminding them that their signing of a union card did
not obligate them to vote for the Union, that he felt they
could solve "our problems without the interference of any
outsiders" and urged them to vote against the Union at the
election.14 I find no coercive threats or promises in either
the letter of August 21 or Milliken's remarks of the 22d,
but conclude they involve only free speech including legiti-
mate statements of fact and expression of opinion within
the purview of Section 8(c) of the Act.
On the morning of August 23, Milliken convened a
meeting of all employees in the plant on worktime. He first
said all those who had attended the schoolhouse meeting
were free to leave the plant to get coffee downtown. Sever-
al employees did so and were paid for the approximate I
hour they were absent from the meeting. Milliken repeated
substantially the same remarks as he made at the school-
house meeting. In addition, according to uncontradicted
testimony of Charles Shaffer, Sr., and Frank Shaffer, he
also said that if the Union got into the plant, "things would
be different, you could not move around the shop in differ-
ent jobs as you now do," the Blue Cross-Blue Shield bene-
fits "would not be the same," and that if the workers went
on strike, he could get replacements to run the plant and
have them escorted across the picket lines by State police.15
I find nothing coercive or violative of the Act in Milliken's
remarks: The predictions of probable curtailment of trans-
fer privileges of employees and modification of present
health and medical insurance benefits if the Union came
into the plant was not stated in such fashion as to indicate
that such changes would be made deliberately by Respon-
dent to the detriment of employees if the Union came in,
but were susceptible to the interpretation that movement
14 The events of August 21 and 22 are found from a composite of credible
testimony of various employee witnesses, considered with notes from which
Milliken spoke during the meeting of the 22d , which were identified by
some witnesses , and other documentary proof Milliken did not testify for
ani party in this case
s The events at this meeting are based on uncontradicted testimony of
various employees who testified for General Counsel
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among jobs might well be limited by contract terms pro-
cured by the Union in bargaining, such as the standard
imposition of seniority rights traditionally sought and often
procured by labor organizations; and the same implication
arises as to probable changes in medical and health bene-
fits upon negotiation with the Union, since it is well known
that labor organizations normally try to get wages and ben-
efits greater or more costly than those presently given to
employees, in order to show the value of unionization to
their members. The prediction of procurement of replace-
ments for striking employees in event of a strike was no
more than a legitimate statement of the employer 's rights
under the law to run his business with replacements during
an economic strike.16 In addition I conclude that Respon-
dent did not give a coercive and unlawful benefit to work-
ers when he allowed them to take time off with pay on
August 23 because they had attended the schoolhouse
meeting the night before. There is no proof in the record
showing whether or not Respondent had in the past made
a practice of paying or not paying employees for time spent
in attendance at company-sponsored meetings, hence I
cannot find that the grant of such benefit during this union
campaign was such a departure from past practice as to
compel the conclusion that the grant of this economic ben-
efit violated the Act. The Golub Corporation, 159 NLRB
355, 362 (1966), and cf. U-Tell Corporation, 150 NLRB
1534 (1964).
1. September 7, 10, and 12 meetings with workers
Milliken spoke to employees assembled in the plant on
the afternoon of September 7. He began by explaining
three company options if the Union came into the plant-
(1) in case of a strike, Respondent could legally hire re-
placements to keep the plant running; (2) if the parties
could not agree on a contract during negotiations, Respon-
dent could shut down the plant and keep it closed until it
desired to reopen; (3) if negotiations are not successful,
and the demands on Respondent are so great that it could
not economically continue to operate by accepting them, it
could close the plant and get rid of the business. He "pre-
dicted" that if any of these situations arose, Respondent
would take the action stated above. In answering prior
questions of employees, he elaborated to some extent on
the employer's right to hire replacements during a strike
and arrange for shipment of materials and products across
the picket line. He also predicted Respondent would never
agree to a union-security clause requiring employees to join
the Union after a contract was signed. He expanded on
rights of the employer during bargaining, including the
right to refuse to make concessions and to refuse to sign a
contract "eventually." He questioned alleged union prom-
ises of greater wages and benefits, mentioning certain pre-
sent Federal wage rules limiting the right of any employer
to give raises at will and in any amount
16 1 make no finding of violation of the Act from uncontradicted testimo-
ny of Frank Shaffer that: (I) about August 14, Milliken called him a rather
vile name after asking him if Shaffer was not speaking to him because he
was mad at Milliken, and Shaffer's reply that he was not talking to anyone
that day, and (2) Stewart's query of Shaffer on August 15 or 16 about when
he would take his vacation, and then walking away, giving Shaffer a "fun-
ny" look, when Shaffer did not reply but just looked at him
In closing, Milliken emphasized the right of workers to
vote for or join, or vote against and not join, the Union,
and then "wondered" if the workers had talked with differ-
ent unions which might better represent them , "or whether
you simply bought the first one which came along?" He
asked if they had compared the Union with other labor
organizations. He then asked "Has anyone considered the
possibility of you people representing yourselves such as
Armco, Magnetics, and Sprang, Inc?" He said he could not
make any promises, however "I can predict that the com-
pany would look favorably toward the possibility of you
holding your own secret ballot election to appoint your
own representatives to deal and represent you with the
management of this company," and also predicted that
"your company would meet regularly and negotiate fairly
with you on all issues" and that if this did not prove suita-
ble over a period of 1, 2, 3, or 4 years, and they still felt
unsatisfied, "you could still return and ask a union to come
in and represent you." He pointed out that "all of you see
that this would cost you nothing and you would have the
privilege of representing and speaking for yourself." He
said the companies mentioned above had done this "very
successfully, and I am trying to have one of the representa-
tives from one of these companies attend our meeting next
Wednesday to explain how they work."
On September 10, Milliken convened the employees in
the plant on worktime for a 15-minute meeting in which he
passed out copies of photostated excerpts from a commer-
cial publication on labor relations, which summarized
Board and court decisions explaining when an employer
could lawfully close his place or lock out employees during
a labor dispute, when he could hire replacement workers
during an economic strike, and his right to refuse conces-
sions and to make or not make counterproposals during
bargaining with a union. He read the excerpts to the work-
ers and then asked several, such as Durnell and Frank
Shaffer, if they had any questions. When none asked ques-
tions, he asked the workers how they liked his new suit,
and that ended the meeting.
Late in the week of September 7 Milliken mailed formal
invitations to employees inviting them and their wives or
husbands to a meeting at the Sheraton Motel in Clarion on
September 12, advising that Respondent would arrange
transportation for any workers without it, and that food
and beverages would be served. The meeting of the 12th
started at 7 p.m. After disclaiming any attempt to make
promises or threats to influence the vote of workers by
offering food and drink or otherwise, Milliken said this was
first a "business meeting," with Respondent trying to "re-
establish the lines of communication that we at one time
had," giving his opinion that "if these communications can
be re-established, we can handle any situation that might
arise without the interference of an unknown third party."
He then repeated for the specific benefit of wives and hus-
bands of employees most of what he had said at previous
meetings about unions and the way they used employees'
dues and fees, making promises of greater wages and bene-
fits which they cannot secure except through bargaining,
the cost to workers of joining a union, other consequences
of unionization such as being required to man picket lines
SPORTSPAL, INC.
at some other company, with consequent loss of wages
which could make it hard for them to live and pay their
debts, and the effect of intervention of a union in the plant
in dealings between the employer and employees. Milliken
then repeated in detail all the benefits presently given to
employees by Respondent, both in wages and other fringe
financial and nonfinancial benefits. He stressed the fact
that the company owner was not taking great profits from
the business, but putting back most of the profit to keep
the business going, keep people employed and trying to
expand the business, but with a small company this was a
slow process. He also reminded them that the owner "can
survive quite well in the event it (the plant) closes."
Milliken then repeated in detail the legal options of Re-
spondent in running or closing the plant if the Union came
in, if a strike occurred, and if collective bargaining did not
reach an agreement even without a strike, in effect para-
phrasing the digest of court decisions he had distributed to
workers on September 10. He predicted that in each of
these events Respondent would exercise the legal options
of (1) hiring replacements in event of an economic strike,
(2) lacking agreement on a contract without a strike, "the
doors will be closed and rehiring will also commence," in
effect forecasting a lockout, and (3) if no acceptable eco-
nomic solution is reached after a long period of time in
bargaining with the Union, "Sportspal will be closed by the
owner."
Milliken also stated the right of Respondent in bargain-
ing to refuse to make concessions on a union-security pro-
vision which would require employees to join the Union
within 30 days after execution of a contract, that "we are
not required to sign a labor agreement and there is nothing
that says that we must eventually sign, all we have to do is
bargain in good faith."
Milliken then said in effect:
Once again, to end this meeting, I would like to
propose the possibility of you forming your own inde-
pendent union which would be set up by you and run
by you. It would cost you nothing. You can elect your
own representatives to negotiate with us. If you vote
NO on the 18th, so that you may try a union of your
own which is run by our own people and not a group
of outsiders, say in a year's time if you are still unhap-
py you can always ask the same union to return or
look for another to represent you.
I can predict that this company would look very
favorably upon the possibility of your holding elec-
tions to appoint representatives to your own indepen-
dent union. I also can predict that this company
would meet regularly or when you desired and negoti-
ate fairly with you on all issues I would like to take
this opportunity once again to urge all of you to vote
NO on September the 18.
I have asked John Altmire to attend this meeting,
not because he is a representative of another union but
simply he is an employee of a company which has an
independent union and to which he belongs. He vol-
unteered to come and answer any questions which you
might have regarding an independent as compared
with a national union.
923
I could not have a representative from another
union present as it could have possibly been in viola-
tion of the law and an unfair labor practice suit could
have been filed.
There is not much more which can be said or done.
The matter is now in your hands to decide how you
will vote. I sincerely hope you all consider the alterna-
tive very carefully. If you make a mistake this time it
will be a big one and you will have to live with it a
long time.
Altmeyer then rose to explain how the independent union
at Armco operated, and some of the fringe benefits they
enjoyed, like time off in hunting season without pay, how
they handled grievances, and the low dues they paid. He
answered questions of a few workers about insurance bene-
fits.
After both spoke, employee Vanistendael asked Milliken
why he was afraid of an outside union. Milliken said he
was not afraid of it, but that he just wanted to give employ-
ees raises, instead of having Radulovich, the agent of the
Union, give it to them.
The workers then viewed picture slides of Milliken's trip
to Africa, and enjoyed food and beverages at company
expense. At some point after the slides were shown, Vanis-
tendael asked Milliken why he did not like organized labor.
Milliken said that Mr. Breen , president and owner of Re-
spondent, had been against organized labor all his life, that
he would rather bargain with a company union, than with
the Steelworkers. At some point this discussion turned into
an argument between the two, in which Vanistendael
abruptly told Milliken he was quitting then.17
The complaint alleges that on September 7 Respondent
coerced employees by unlawful interrogation about their
union activities and sympathies, and threats to close down
the operation if they went on strike, and also encouraged
them to form an independent or company union.
Milliken's prediction of a plant closure in event of a strike,
obviously referring to a lockout of workers, and of a proba-
ble shutdown of the whole business if the union demands
in negotiations and the situation arising therefrom were
such that the business could no longer be operated eco-
nomically, appear to be legitimate prediction of the exer-
cise of Respondent's legal rights in those two situations
which fall within the area of legitimate free speech. The
legal options he outlined were essentially the same in short
form as those he circulated and read off to employees at
the September 10 meeting. General Counsel presents no
argument nor citation of authority to show that these pre-
dictions of the exercise of legal rights under the Act were
illegal, and it is significant that amended complaint does
not charge, nor does General Counsel argue, that the cita-
tion of those legal rights on September 10 was inaccurate,
misleading, or unlawful. Hence, I find no violation of the
17 The events of September 7, 10, and 12 are found from speech notes
used by Milliken at the meetings of September 7 and 12, as corroborated in
large part by testimony of numerous employees who attended, most of
whom could recall only short portions of what Milliken said, but some of
whom, like Vanistendael, Baum, and Hindman, admitted that the speech
texts in evidence contained the substantial gist of what Milliken said, and
that he read from these texts for the most part
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act in Milliken's prediction of a lockout or shutdown of
the business in these two situations.18
I find no illegal interrogation of employees on Septem-
ber 7 because Milliken's only questions toward the end of
his speech were made to the whole group, coming right
after his legitimate reference to the right of employees to
vote for or against, and join or not join, the Union, and in
that context were palpably designed, not to elicit their atti-
tudes, singly or as a whole, regarding the Union, but to
bring to their attention the fact that they were not bound to
choose the Union, as the first labor organization presented
for their consideration, but had the right to search for some
other organization, including an independent union, to see
if it was better suited for their needs. I do not consider the
presentation of these alternatives, even by the time-hon-
ored and effective device of rhetorical questions (which do
not call for an answer), to be coercive. General Counsel
presents no argument or citation of authority which would
tend to prove otherwise.
However, Milliken had made it clear in his August 21
invitation to the first general meeting, and twice in the
August 22 meeting itself, that Respondent wanted to start
talking directly with employees about their problems
"without the interference of an UNKNOWN third party," an
indirect but thinly veiled indication that it would rather
negotiate directly with the workers than through the
Union. While these remarks are not charged as coercive,
Milliken's "prediction" that Respondent would favor the
employees holding "your own" private election to choose
"your own" representative for bargaining, with whom Re-
spondent would meet and negotiate "regularly and fairly,"
in contrast with his prior predictions that Respondent
would bargain hard with the Union, an outsider, would
never agree in bargaining to a union-security clause, which
would force all workers into the Union, and might refuse
concessions and "eventually" might not even sign a con-
tract, clearly stand out as potent promises of quick and
easy negotiations leading to a quick contract, thus implying
quick economic benefits, if no outside third party was in-
volved, and thus were well calculated to coerce the employ-
ees to reject the Union in the election and form their own
independent union. I find these remarks in context viola-
tive of Section 8(a)(2) and (1) of the Act.19
At the meeting of September 12, which was a bare 6 days
before the Board election, Milliken continued his pressure
on employees to persuade them to form their own union,
by his repeated comments that if Respondent and they
"restablish [sic] lines of communication," they could han-
dle all problems themselves without an unknown outsider,
suggesting that they try that approach to bargaining for I
to 4 years before turning to outside union, predicting fa-
vorable responses from Respondent in negotiations. The
coercive thrust of these remarks is enhanced by
Respondent's clear animosity toward the Union as shown
18 On the prediction of total cessation of business , see Sinclair & Rush,
Inc, 185 NLRB 25 (1970) These predictions accompanied the prediction of
operation of the plant with replacements during an economic strike, which
is not charged as a violation of the Act and is also consistent with the lawful
citations of authority recited to the workers on September 10
19 Lake City Foundry Co, 173 NLRB 1081, 1088-89 (1968)
by Milliken's open remarks in answer to one employee's
questions, that Respondent wanted to give benefits to
workers directly, not through the outside union, and that
Respondent's owner disliked "organized labor" and want-
ed to deal only with a company union. The coercion inher-
ent in these remarks was further enhanced by the prior
announcement and grant of food and beverages for work-
ers at this meeting at company expense.
2. Formation and recognition of Company Union
On the morning of September 13, a call was broadcast
over the plant public address system, requesting employees
Bartley, Gothe, and Karnes to report to the downtown
sales office. McCoy heard it, and told the three he would
go along. The four went downtown about 10 a.m. and met
Shipping Clerk Hindman and Milliken in the latter's office.
About 9 a.m. that morning Vanistendael had received a
telephone call at home from Milliken, who said he was
having a meeting in his office and asked Vanistendael to
come down. Vanistendael got there shortly after 10 a.m.
and met the other four employees and Altmeyer, the Arm-
co Steel independent union agent, there. At the outset Mil-
liken told Vanistendael the Company had decided to give
him his job back. He then asked the five employees what
they thought about an independent union, stating he felt it
was a good idea because the employees could clear up their
own problems within the Company without a third party.
He mentioned the independent union at Armco Steel, say-
ing it was not a bad thing to have. One employee said he
thought the workers should do something about it, try to
get an independent union started. Milliken said it was a
good idea, and asked Altmeyer to explain how such a
union could be organized and would operate. Altmeyer
talked to someone on the telephone, and then told the
group that the employees would have to vote on a compa-
ny union, and also vote to elect three representatives, and
then a contract could be drawn up with the Company and
signed by the representatives and the employer. Another
employee suggested they should have a vote, to see how
many employees favored the idea. Milliken said that if the
employees needed any materials or supplies to hold a vote,
they could "help themselves" in the office. He also "pre-
dicted" that the employees would probably get more bene-
fits through a company union than an outside union.
Some of the employees raised the question of how to
prepare a legal contract. Milliken said it would be legal if
the parties drew it up and then the employees voted on it
and had it prepared by a lawyer and notarized by a justice
of the peace. An employee asked how the lawyer would be
paid for this service. The worker group suggested the Com-
pany pay the lawyer. Milliken replied that the workers
must pay for that, as it was like paying union dues. He then
telephoned someone to find out what the lawyers fees
would be, but got no reply.
The conferees recessed for lunch, with Milliken suggest-
ing the employee group return to the plant after lunch and
get the views of all the employees about forming their own
union. When the worker group returned from lunch, Hind-
man and McCoy went upstairs to Milliken's office and
shortly returned with a handful of pens and a batch of
SPORTSPAL, INC.
about 30 typed ballots, already printed with blocks in
which "yes" or "no" could be marked for or against a com-
pany union. Before the group left, Milliken called the plant
and ordered that officials Cotherman and Stewart come
down to the sales office at once. Those officials came down
sometime before 1 p.m., after telling some employees at the
plant that they had been ordered to report at the office,
because the workers were going to hold a meeting at 1 p.m.
in the plant.
The employee group got to the plant about 12:30 p.m.
and at once started to talk with other workers about a
company union and the differences between it and the
Steelworkers Union. Gothe told all the workers they would
have a 4-hour "under the table" discussion among them-
selves only. For about an hour, the workers discussed it pro
and con in small groups. In the discussion Karnes told
some workers, on the basis of remarks Milliken had made
to the group of five, that if they formed a company union,
Milliken would give them anything they wanted. No super-
visor or company official was present during any part of
the meeting. After about an hour, Gothe or another worker
suggested they have a vote on the company union by a
show of hands. This was done, but another worker suggest-
ed this was not good enough, they should have a written
ballot vote. The ballots procured by McCoy were then
passed out and marked by the employees. An employee
counted them and announced the result as 17 "yes," 8 "no"
and I blank ballot.20
An employee then suggested they contact a lawyer to
find out what type of contract would be binding and how
much it would cost to prepare it Several made calls to
lawyers but reported back that the lawyers called knew
nothing about labor contracts and could give no advice.
McCoy and employee Betty Baum then called the Pitts-
burgh Regional Office of the Board in an attempt to find
out if a contract would be binding and whether they could
negotiate one with an election pending. They were advised
not to act hastily but to seek legal advice. Some employees
asked who would pay the lawyer's fees, so McCoy called
Milliken at his office, told him the result of the vote, and
asked if the Company would pay the lawyer. Milliken sug-
gested they might as well start negotiating a contract at
once, and he would pay half the lawyer's fee. On learning
this, the employees became disheartened, saying the Com-
pany should pay the whole fee, and some began tearing up
their written ballots. Gothe called Milliken to report their
reaction, and then reported to the workers that Milliken
would pay the entire fee.
The employees then nominated six workers as employee
representatives. Link and Vanistendael went back down-
town and returned with typed ballots containing the names
20 When the written vote was called, employees Vanistendael Link, and
Runyan did not participate, for they had gone back to the downtown office
at the request of employee Durnell to find out if Milliken would take part in
an open debate with a Steelworkers' agent on the merits of their respective
unions While discussing this with Milliken, a call came from employees at
the plant to find out how the three would vote Milliken asked the three and
then reported to the caller that they would vote for the company union A
bit later Gothe called the office and told Vanistendael he wanted the three
at the plant to vote on the employee representatives so they went back in
time to cast their personal ballots in that vote
925
of the six, with blocks opposite their names for voting. By
written ballot the employees chose McCoy, Hindman, and
Karnes as their representatives.
This meeting ran from 1 to 4 p.m., and all the employees
present were paid for that time, although there was no pro-
duction in the period.
Shortly after the second vote, Milliken called the plant
and McCoy reported the result of that vote. When McCoy
said he got the most votes, Milliken said that made him the
chairman, and that he wanted to speak to the committee at
once at his office. The committee and Link went down
shortly after 4 p.m. Milliken told them he thought they
"had done a pretty good thing," and that they "could fol-
low through on it on September 18." He then called the
company attorney, putting the four employees on exten-
sion phones, and reported what had occurred. The attorney
advised that the Company could not pay lawyer's fees for
the employees' lawyer, and could not recognize or bargain
with an independent union while a proceeding for an elec-
tion was pending before the Board, and that the Company
could not make any threats or promises of any kind to the
workers. After this, Milliken told employee Hart and per-
haps others that he was not allowed to pay any lawyer's
fees for their union.
After the employees' meeting ended, Vanistendael went
back to Milliken's office with his wife to ask for a personal
loan of $300. Milliken said he could not give it to him, as
he had no guarantee that Vanistendael would have a job at
the plant after September 18, the date of the election. Van-
istendael asked why this was, and Milliken said "because
of my predictions" made in his prior speeches. He added
that all the Company had to do was to negotiate fairly with
the Union, and he could "drag it out as long as I want." 21
The record indicates that, after the events of September
13, the Company Union engaged in none of the normal
activities of an active and living labor organization, with
one exception. It did not adopt or operate under any const-
itution or bylaws, formally or informally, hold any meet-
ings of members or of its committee of three, collect any
dues, etc. Hart testified credibly that after the workers
learned on September 13 that Respondent would not pay
the fees of a company union lawyer and could not deal
with their union while the election case was pending, that
"blew the whole deal." However, the company union com-
mittee became active on October 16 under the following
circumstances- On that date Vanistendael was building 15-
foot canoes, while Charles Shaffer, Sr., an older and senior
employee, was working on 14-foot flat-bottom boats. Shaf-
fer was dissatisfied with his assignment, and complained to
his foreman that, as a senior employee, he should have the
canoe job which was easier work because canoe builders
could put out more items per day and more quickly earn a
bonus. The foreman talked to Milliken about it. At the
same time , Shaffer asked Vanistendael to switch jobs with
him, making the same argument. Vanistendael was agree-
able, and Shaffer told his foreman about their agreement.
Milliken then called both employees to his office, as well as
21 The events of September 13 are found from credible and uncontradict-
ed testimony of McCoy, Karnes , Frank Shaffer, Baum, Durnell , Hart. and
Vanistendael , with some corroboration from Stewart and Cotherman, as
well as documentary proof
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the three committeemen . He asked the committee whether
Shaffer had enough seniority to insist on the switch, and
they agreed that he did have and should have the canoe job
if he wanted it. Milliken likewise agreed, and also said the
whole plant would be put on a seniority system the next
day.
On October 17, Milliken brought personnel records into
the plant showing the length of service of each employee,
and with that list before him asked each employee, on a
seniority basis, if he or she wanted anotherjob or preferred
to remain in the present job. Some wanted to transfer, and
on that basis about 10 employees were shifted to other
jobs, bumping junior employees out of them. The company
union committee took no part in the poll of workers or the
actual transfers, nor did any of its members know about
the discussions between Shaffer and Vanistendael and by
them with their foreman before the meeting with Milliken.
They learned they were being called to a conference on the
matter as the ostensible "grievance" committee of the
Company Union for the first time when they entered
Milliken's office.22
It is clear from the above facts that Respondent prompt-
ly followed up its plainly stated preferences for an inside
union by the following coercive and unlawful actions on
September 13: (1) Milliken's selection and convening of a
group of five workers (four by name and acceptance of
McCoy when he came along without invitation) on compa-
ny time, without prior notification of the employees or per-
mitting them to choose their own agents to meet with
management, and reemphasizing to that committee
Respondent's desire for, and the advisability of, a company
union; (2) advising the group through an agent of another
company union called in by him about the procedure for
formation and operation of a company union; (3) provid-
ing the employee group with writing material, stationery,
and office equipment for preparation of ballots for a vote
on a company union and bargaining representatives; (4)
promising to pay a part, and then all, of lawyer's fees
which might be incurred by the Company Union in prepar-
ing contracts in negotiation with Respondent; (5) allowing
employees on company time and premises to discuss and
vote on a company union and selection of a bargaining
committee; and (6) designating McCoy, the chief organizer
for the Union, as the chairman of the company union bar-
gaining committee, without prior vote of or approval from
the employees.
I conclude that by the above actions Respondent initiat-
ed, dominated, and interfered with the formation and ad-
ministration of the Company Union, and rendered it po-
tent and unlawful support and assistance in its initial and
formative stages, in violation of Section 8(a)(2) of the Act.
By such conduct within a few days before the Board elec-
tion Respondent also effectively counteracted and fore-
stalled the Union's organizing campaign, thus coercing and
interfering with employees' right to choose their own bar-
gaining agent as guaranteed by Section 7 of the Act, in
violation of Section 8(a)(l) of the Act.23
22 These facts are found from credible testimony of Vanistendael and
Hindman Testimony of Cotherman at variance therewith is not credited
23 Lake City Foundry Co, supra, Si Joseph Lead Company, 171 NLRB 541
(1968)
I find and conclude that Respondent further violated
Section 8(a)(1) of the Act by Milliken's refusal to consider
a grant of a personal loan to Vanistendael on September
13, contrary to its past practice,24 because of his "pre-
dictions" in past speeches, which included a promise that
Respondent would lock out employees or even shut down
the whole operation in event of a strike by the Union or if
its demands made further operation of the business uneco-
nomical, as either action might result in loss of
Vanistendael's job. Such remarks were a clear coercive
threat of denial of an existing benefit because of the possi-
ble advent of the Union if it won the election.
Although Respondent argues that the Company Union
existed very briefly in embryo form for only a few hours on
September 13, hence was not a true and viable labor orga-
nization, I must find that Respondent, after unlawfully
creating and dominating it for that short period of time to
persuade employees to vote against the Union, in effect
kept it on the shelf in a state of "suspended animation," so
to speak, until after the Union lost the election, and then
revived it for no more than another day on October 16, by
suddenly calling in its committee of three to give a pro
forma approval in a seeming dispute over a job switch
which had already been amicably worked out by the em-
ployees involved, all without knowledge of the Company
Union or its committee. Milliken also treated it as an ex-
isting but puppet organization when he announced at the
same time the institution of the seniority system in the
plant, getting the committee's pro forma approval of that
decision, and implemented the announcement the next day
by actual imposition of seniority, with some shift of em-
ployees in jobs, but all without giving the Company Union
or its committee a chance to put the issue before the em-
ployees privately. This action sharply outlines the contin-
ued puppet character of the Company Upton and
Respondent's continued domination of it, in violation of
Section 8(a)(2) of the Act. Both the announcement and
institution of the seniority system, after the Union's de-
mand for recognition and while a question concerning rep-
resentation was pending, was a further violation of Section
8(a)(2) and (1) of the Act.25
3. The refusal to bargain
Although Respondent did not reply formally to the
Union's August 6 demand for recognition and negotiation,
it has obviously relied upon the outcome of the election for
its refusal to bargain since its outcome became known. It
now claims that a finding of a refusal to bargain, and a
bargaining order, should not be based solely on the basis of
the signed authorization cards, but that an election is still
the best mode of determining employee sentiment about
representation, where there has been confusion and misun-
derstanding in connection with the signing of the cards,
and the "evidence of unfair employer practices is less than
compelling." I must disagree. I have already found the
24 In his August 22 and September 12 speeches Milliken specifically cited
the personal loan practice as one of the Important benefits employees en-
joyed
25 Donna Lee Sportswear, 174 NLRB 318 (1969)
SPORTSPAL, INC
Union had majority status since August 1, on the basis of
reliable authorization cards. Respondent's varied and coer-
cive conduct in the critical period before the election 26 as
found above, including repeated plain promises of easy ne-
gotiations and grant of benefits if the workers created their
own independent union and rejected the Union, followed
by Respondent's initiation of, and potent assistance and
support to, the formation of the Company Union, domina-
tion of its employee creators and its elected representatives,
followed by unilateral revival of it after the election for
purposes of granting the valuable right of seniority to all
employees, all without prior negotiation, and with all of
this conduct standing in sharp contrast to Respondent's
repeated warnings to employees that it would bargain hard
with the Union if it became their representative, would
probably never yield on the issue of union security, and
would probably refuse concessions to the point of avoiding
the need for signing any contract, presents a broad picture
of pervasive and extensive unfair labor practices which
compel the conclusion that Respondent has acted through-
out to avoid recognition of and bargaining with the Union
by whatever means. I conclude that by all of this conduct
in the short critical period before the election Respondent
has failed and refused to bargain in good faith with the
Union as the exclusive bargaining agent of its employees in
the appropriate unit found above, in violation of Section
8(a)(5) and (1) of the Act.27
4. The objections to the election in Case 6-RC-6565
As the Union presented no proof of its own in support of
its three objections, but relies solely upon the evidence ad-
duced by General Counsel in Case 6---CA-6889, I must
conclude that the findings of unfair labor practices above
require me to sustain Objection 1, 2, and 3. The unfair
labor practices involving such conduct require that the
election of September 18 be set aside 28
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of Respondent set forth in
section II, above, occurring in connection with its opera-
tions 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
thereof.
26 The critical period is the time between the filing of the representation
petition and the date of the election Ideal Electric Company, 134 NLRB
1275, 1278 (1961)
27 In reaching these conclusions, I have considered other conduct of Re-
spondent set forth in the record, and certain other arguments of Respondent
on various aspects of the case, but find it unnecessary to make specific
findings on such conduct, and I also conclude that the added arguments of
Respondent are without merit
Z Although the election is set aside, I also rule for the sake of a complete
record, on the basis of agreement of the parties, that the Union's challenge
to the ballot of Nelson Cotherman be sustained and its challenge to the
ballot of Charles Shaffer, Sr , be overruled
CONCLUSIONS OF LAW
927
1. Respondent is an employer engaged in commerce,
and the Union and Company Union are labor organiza-
tions, within the meaning of the Act.
2. By unlawful interrogation of employees regarding
their union sentiments or activities, threatening them with
plant removal or closure and loss of employment if they
voted for the Union and it won in an election , threatening
them with loss of benefits if the Union won the election,
and promise of grant of benefits if it lost, granting them
benefits to persuade them to vote against the Union, prom-
ising them benefits in negotiations if they rejected the
Union and formed an independent or company union,
granting them benefits to induce them to form an indepen-
dent or company union, assisting them by gift of company
time , equipment, and use of its plant to form an indepen-
dent or company union, and negotiating with and recog-
nizing such independent or company union and granting
benefits to employees during such negotiation, while a rep-
resentation proceeding brought by the Union is pending
before the Board, Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed to them by Section 7 of the Act, thereby engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3 By dominating and interfering with the formation
and administration of the Company Union, and contribut-
ing financial and other support and assistance to it, to the
extent found above, Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(2) of the Act.
4 Since August 1, 1973, the Union has been the exclu-
sive collective-bargaining representative of employees of
Respondent, within the meaning of Section 9(a) of the Act,
in a unit consisting of all production and maintenance
employees at Respondent's plants in Emlenton, Pennsylva-
nia, excluding all office clerical employees, guards, profes-
sional employees and supervisors as defined in the Act,
which is a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
5. By refusing since August 6, 1973, to bargain collec-
tively upon request with the Union as such bargaining
agent of employees in said unit, Respondent has engaged
and is engaging in unfair labor practices in violation of
Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Except to the extent found above, Respondent has
not engaged in conduct violative of the Act as charged in
the amended complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violating Sections 8(a)(1), (2), and (5) of the
Act, I shall recommend that Respondent be ordered to
cease and desist from such conduct and take certain affir-
mative action designed to effectuate the policies of the Act.
As the variety of unfair labor practices indicate that Re-
spondent has a fundamental opposition to the basic princi-
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pies of collective bargaining set forth in the Act, I shall
recommend a broad cease-and-desist order.
I shall also recommend that Respondent withdraw and
withhold all recognition from the Company Union as the
representative of any of its employees for any of the statu-
tory purposes of collective bargaining; however nothing in
this recommendation or the Order based thereon shall be
construed to require Respondent to rescind, abandon, or
vary any economic benefit or any beneficial change of
term or condition of employment granted to employees
during its unlawful dealing with that labor organization.
In view of Respondent's violation of Section 8(a)(5) of
the Act, coupled with its other persuasive and extensive
unfair labor practices which require that the election of
September 18, 1973, be set aside, it appears that the coer-
cive effect of Respondent's overall conduct is so broad and
pervasive as to make it unlikely that the effects of the un-
fair labor practices can be erased and a free and untram-
meled choice of bargaining agent by the employees insured
by use of the traditional remedy of a second election. I will
therefore recommend that Respondent bargain, upon re-
quest, with the Union as the exclusive bargaining agent of
employees in the appropriate unit aforesaid, and, if an un-
derstanding is reached, that it embody such understanding
in a signed agreement 29
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and on the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 30
Respondent, Sportspal, Inc., of Emlenton, Pennsylvania,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union senti-
ments or activities, threatening them with removal or clo-
sure of its plant, with loss of employment or benefits, if the
Union won an election, promising them benefits if it lost
the election, granting employees benefits to persuade them
to vote against the Union, promising them benefits in ne-
gotiations if they rejected the Union and formed an inde-
pendent or company union, granting them benefits to in-
duce them to reject the Union and form an independent or
company union, assisting them by gift of company time,
equipment, and use of plant property to form an indepen-
dent or company union, negotiating with and recognizing
such independent or company union and granting employ-
ees benefits during such negotiations, while a representa-
29 Irving Air Chute Co, Inc, 149 NLRB 627 (1964), N L R B v Gissel
Packing Company, 395 U S 575 (1969)
30 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
tion proceeding brought by the Union is pending before
the Board.
(b) In any manner dominating or interfering with the
formation or administration of the Company Union or any
other labor organization, or contributing financial or any
other assistance and support to such organization, or re-
cognizing or dealing in any manner with such organization
as the exclusive bargaining representative of its employees;
provided, however, that nothing herein shall be construed
as requiring Respondent to rescind, abandon, or vary any
economic benefits or beneficial change of terms or condi-
tions of employment granted to employees during its un-
lawful dealing with that labor organization.
(c) Refusing to bargain collectively upon request in
good faith concerning rates of pay, wages, hours of em-
ployment, or other conditions of employment with United
Steelworkers of America, AFL-CIO-CLC, as the exclusive
bargaining representative of its employees in the appropri-
ate unit consisting of all production and maintenance em-
ployees at Respondent's plants in Emlenton, Pennsylvania,
excluding all office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act, 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 authorized in the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
Company Union as the exclusive bargaining representative
of its employees in the appropriate unit aforesaid, but with-
out taking any action to rescind, abandon, or vary any
economic benefits or any beneficial change of terms or
conditions of employment granted to its employees during
any past recognition of or dealing with said Company
Union.
(b) Upon request bargain collectively in good faith with
United Steelworkers of America, AFL-CIO-CLC, as the
exclusive representative of all employees in the appropriate
unit aforesaid with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment , and, if an understanding is reached, embody such
understanding in a signed agreement.
(c) Post at its plants and offices in Emlenton, Pennsylva-
nia, copies of the attached notice marked "Appendix." 31
Copies of said notice, on forms to be provided by the Re-
gional Director for Region 6, after being duly signed by a
representative of Respondent, shall be posted by Respon-
dent 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
31 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
SPORTSPAL, INC. 929
customarily posted. Reasonable steps shall be taken by Re- Respondent has taken to comply herewith.
spondent to insure that said notices are not altered, de- IT IS FURTHER ORDERED that the complaint, as amended,
faced, or covered by any other material. be dismissed insofar as it alleges violations of the Act not
(d) Notify the Regional Director for Region 6, in writ- specifically found herein.
ing, within 20 days from the date of this Order, what steps