Tri-County Tube, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1971

194 N.L.R.B. 103 (N.L.R.B. 1971)

TRI-COUNTY TUBE, INC. 103
Tri-County Tube, Inc, and International Association of
Machinist and Aerospace Workers, AFI-CIO.
Case 3-CA-4222
November 10, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 22, 1971, Trial Examiner Robert E. Mullin
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondent had not engaged in other unfair labor
practices as alleged in the complaint and recommend-
ed that those allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
The complaint alleged and the Trial Examiner
found that Respondent violated Section 8(a)(1) of the
Act by President Bush's threat that he could have
employee Deiter prosecuted for perjury because of
her testimony at the representation hearing. We do
not agree. There was nothing in the threat itself, or the
context in which it was made, that could be construed
as relating to Deiter's employment status or which
established that it was intended to intimidate employ-
ees testifying at a Board hearing. It appears, in fact, to
be nothing more than Bush's opinion that Deiter, in
giving testimony contrary to his own at the represent-
ation hearing, had lied under oath. Under these
circumstances Bush's statements did not constitute an
invasion of the rights of the employees under the
statute.' We shall therefore dismiss this allegation of
the complaint.2
ORDER
Pursuant to Section 10(c) of the National Labor
194 NLRB No. 5
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Tri-County Tube, Inc., Nunda, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.3
1 Cf. Waggoner Corporation, 162 NLRB 1161, 1167.
2 For the reasons expressed by the Trial Examiner , Member Jenkins
would affirm his finding of a violation of Section 8(a)(1) in President
Bush's threat to employee Defter. Bush told Deiter that he could have her
prosecuted for perjury because of her testimony in the representation
hearing which conflicted with his. Bush 's subsequent statement to Deiter
that he would not do so because "Everything has gone in favor of our side"
sufficiently discloses the meaning and thrust of his threat . Even without
this clear elucidation from Bush himself , however, the threat in the context
of substantial other misconduct by the Employer amply discloses the
coercive and restraining meamng, and its direction toward protected
activity, conveyed by Bush's threat.
3 Chairman Miller agrees that a bargaining order is appropriate in this
case, as a remedy for the serious violations of Section 8(a)(1) which
Respondent is found to have committed within the 10 (b) period. Consistent
with his position in United Packing Company of Iowa, Inc., 187 NLRB No.
132, Chairman Miller does not find it necessary to reach the 8 (a)(5) issue,
and therefore does not pass on the Trial Examiner's finding of a
"continuing demand." See Howard Mfg. Co. v. N.L R B., 436 F.2d 581
(C.A. 8)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MuLLIN, Trial Examiner: This case was heard
in Nunda, New York, on March 31, 1971, pursuant to a
charge, duly filed and served.' The complaint, issued on
December 29, 1970, and amended at the outset of the
hearing, alleged that the Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1) and (5) of the
Act. In its answer, the Respondent conceded certain facts
as to its business operations, but it denied all allegations
that it had committed any unfair labor practices.
All parties appeared at the hearing and were given full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally at the close of
the hearing and to file briefs. Oral argument was waived by
the parties. On April 23, 1971, the General Counsel and
Respondent submitted able and comprehensive briefs. A
motion to dismiss, made by the Respondent at the close of
the hearing was taken under advisement by the Trial
Examiner . It is disposed of as appears hereinafter in this
decision.
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, with its plant
and principal office in the town of Nunda, in that State, has
been engaged there, at all times material herein, in the
manufacture of steel tubing and related products. During
1 The charge was filed on August 28, 1970.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the course of the 12 months prior to issuance of the
complaint, a representative period, it manufactured, sold,
and distributed products valued in excess of $50,000, of
which amount products valued in, excess of $50,000 were
shipped from the plant in Nunda directly to customers
located outside the State of New York. Upon the foregoing
facts, the Respondent concedes, and the Trial Examiner
finds, that Tri-County Tube, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes , and the Trial Examiner finds,
that International Association of Machinists and Aeros-
pace Workers , AFL-CIO, (herein called Union or IAM), is
a labor organization within the meaning, of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent concedes, and the Trial Examiner finds,
that all production and maintenance employees at the
Respondent's Nunda plant, exclusive of office clericals,
professional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
In December 1969, Mr. John G. Jackson, Grand Lodge
representative for the Union, began an organizational
campaign among the Respondent's employees. Helen
Deiter was one of the employees most active among her
coworkers in this regard. Jackson testified that in mid-
December she turned over to him approximately 10
authorization cards which employees had signed.
In a letter,-dated December 30, 1969, Jackson wrote Mr.
Edward Bush, president of the Respondent, that a majority
of the production and maintenance workers had authorized
the IAM to represent them, and on behalf of the Union he
requested that the Respondent recognize it as the majority
representative and arrange a conference to discuss the
terms of a collective-bargaining agreement.
On January 12, 1970,2 the Union filed a petition for an
election. Tri-County Tube, Inc., Case 3-RC-4843. On
February 26, a hearing was held on the issues raised by this
petition. On March 12, the Regional Director issued a
Decision and Direction of Election in that case. Thereafter,
on April 7, the Regional Office conducted an election
among the employees in the appropriate unit. Of approxi-
mately 19 eligible voters, 10 votes were for the IAM, 9 votes
were against, and 2 ballots were challenged.
On June 8, the Regional Director issued a Supplemental
Decision wherein he found that one of the challenges
should be sustained, but that the challenge to the ballot of
Timothy Paine, an employee on military leave, should be
overruled and that his ballot should be opened and
counted. In a revised tally of ballots, issued on June 16, the
addition of Paine's ballot resulted in a vote of 10 for the
IAM and 10 against.
Since counting of the challenged ballot was not
dispositive of the representation issue, the Regional
Director thereupon considered the Union's objections to
conduct affecting results of the election.3 On July 8, and
after an investigation, the Regional Director issued a
Second Supplemental Decision wherein he found no merit
in one of the objections, but concluded that the issues
raised by the two other objections should be resolved only
after a hearing. He thereupon ordered that a hearing be
held for this purpose. On July 14, the said hearing was held
and on August 28, the Regional Director issued a Third
Supplemental Decision, wherein he dismissed one of the
objections, but found merit to the other which alleged that
prior to the election the Employer had threatened the
employees with closing the plant and promised them wage
increases and other benefits in an effort to defeat the
Union. As a result of these conclusions, the Regional
Director set aside the election held in April and directed
that a new election be held.
As noted earlier, on August 28, the Union filed an unfair
labor practice charge alleging that the Respondent had
violated Section 8(a)(1) and (5) of the Act. On December
21, after the IAM requested permission to withdraw its
petition in Case 3-RC-4843, the Regional Director
approved this withdrawal.
B. The Organizational Campaign of the Union and
the Request for Recognition
1. The demand
During the early part of December 1969, the Union
secured signed authorization cards, from many of the
employees. These cards were worded unambiguously and
on their face clearly set forth a purpose to designate the
Union as the signatory's collective-bargaining agent. As
such, they do not have any of the limitations or disabilities
which the Board and the Courts have attributed to so-called
dual purpose cards. Levi Strauss & Co., 172 NLRB No. 57;
Gissel Packing Co. v. N.LR.B., 395 U.S. 575, 607-609.4
Eight of the individuals who signed cards were called as
witnesses by the General Counsel. Each testified credibly
and without contradiction that she had read the card when
it was presented to her and that thereafter she had signed it
for the purpose of having the Union represent her. The
employees who so testified were: Virginia Baham, Helen
2 All dates that appear hereinafter are for the year 1970 unless
specifically noted otherwise.
3 The objections had been filed on April 15, and within the time
permitted by the Board's rules, as the Regional Director found.
4 The following language appeared on the face of the card-
YES, I WANT THE IAM
I, the undersigned employee of (Company) authorize the
International Association of Machinists and Aerospace Workers
(IAM) to act as my collective bargaining agent for wages, hours and
working conditions. I agree that this card may be used either to
support a demand for recognition or an NLRB election, at the
discretion of the union.
NAME (PRINT) DATE
HOME ADDRESS PHONE
CITY STATE ZIP
JOB TITLE DEPT. SHIFT
SIGN HERE' X
Note: This authorization to be SIGNED and DATED in Employee's
own handwriting. YOUR RIGHT TO SIGN THIS CARD IS
PROTECTED BY FEDERAL LAW
RECEIVED BY (Initial)
TRI-COUNTY TUBE, INC. 105
Deiter, Christine Klugh, Ruth Letson, Geraldine Perry,
Carol Smith, Shirley Truax, and Sonja Truax. Helen Deiter
also testified, credibly, that on December 10, 1969, she gave
employee Winifred Beardsley a card, that the latter read it
and that after she had done so, Beardsley signed the
authorization. All of the foregoing cards were signed during
the period from December 9 to 10, 1969.5 In addition to the
foregoing cards, all of which were received in evidence, two
others were offered and received. These were the cards of
employees Ruth Sleight and Judith Burger. John G.
Jackson testified, credibly and without contradiction, that
on about February 5, he gave authorization cards to these
two last named employees and that, after reading the cards,
Sleight and Burger signed them in his presences
As found earlier, in a letter dated December 30, 1969, the
Union made its initial demand for recognition and for a
bargaining conference. In a telegram dated January 14,
1970, the Respondent rejected the Union's request on the
ground that the Respondent did not believe that a majority
of its employees cared to have the IAM represent them,
notwithstanding any cards they might have signed. The
Respondent concluded its wire with the declaration that it
would not meet with the Union, or any of its representa-
tives, unless and until the IAM was certified by the Board.
As noted earlier, on February 26, 1970, the Regional
Office held a hearing on the representation petition filed in
Case 3-RC-4843. At that time, counsel for the Respondent
reiterated that the Respondent had not changed its position
and that it would continue to refuse recognition to the
Union until such time as the Board decided the representa-
tion issue. At the hearing in the instant matter, President
Edward Bush conceded that the Respondent's position on
the Union's request for recognition and bargaining was still
the same as it was at the time the Company dispatched the
telegram of January 14, 1970.
Since the charge in this case was filed on August 28, 1970,
the 10(b) date is February 28, 1970. The General Counsel
contends that although the demand for recognition which
the Union made on December 30, 1969, was beyond the
10(b) period, the Union's conduct subsequent thereto
establishes that it was a continuing demand. This
contention is supported by the record. After making its
initial request for recognition, the Union filed and
processed a representation petition which in itself constitut-
ed a demand and was evidence of a continuing request.
American Compressed Steel Corp., 146 NLRB 1463,
1470-71, enfd. in relevant part 343 F.2d 307, 310 (C.A.3);
Alterman Transport Lines, 178 NLRB No. 21, fn. 3.
Throughout the period subsequent to its original demand
the Union pressed for a resolution of the issues raised in the
extended proceedings that arose out of the representation
matter. Its actions at all times subsequent to February 28,
1970, were consistent with the demand for recognition
which it made, originally, on December 30, 1969.
The General Counsel also asserts , with some merit, that
the conduct of the Respondent throughout the period in
5 The General Counsel voluntarily withdrew another card, that of Jean
Voss, as an exhibit, after he conceded that Voss was no longer a member of
the unit on the date to be considered in connection with the refusal to
bargain issue.
6 The Respondent contends that Sleight's card should not be counted
because her signature was printed rather than signed The blanks on the
question made it unnecessary for the Union to reiterate its
demand for recognition . In support of this contention there
is the fact that in its telegram of January 14, the
Respondent did not question the majority status which the
Union claimed to have . Instead, the Company asserted that
although the employees may have signed cards, it felt that
in an election the employees would not vote for the Union
and that , for this reason, the Respondent would refuse to
recognize it until the Union was certified by the Board.
This, of course , constituted an outright rejection of the
Union's request without reference or regard to the number
of cards which the IAM had secured . Thereafter, at the
representation hearing and at the complaint hearing, the
Respondent , in one instance through its counsel , and in the
other through its president , reiterated that there had been
no change in its position as to recognition of the Union.
In view of the foregoing facts , from which it is clear that
the Union has continued to seek recognition as the
employees' bargaining agent and that at the same time the
Respondent has continued to reject that request, the Trial
Examiner, concludes and finds that at all times material
herein, there was outstanding a continuing demand for
recognition of the Union and a continuing refusal of this
demand by the Respondent . N.L.R.B. v. Burton-Dixie
Corp., 210 F.2d 199, 200-201 (C.A. 10); cf., Sobell Chemical
Corporation v. N.L.R. B., 267 F .2d 922 (C.A. 2).
2. The unit and the majority issue
As found earlier herein, the parties are agreed that a
production and maintenance unit is appropriate. There is a
dispute, however, as to whether one individual should be
included within this unit as of February 28, 1970, the first
day within the 10(b) period and the critical date for the
purposes of determining majority status in this case. That
individual was Timothy Paine, an employee of the
Respondent who was on military leave at the time of the
election . It was established that Paine left his job at the
plant for duty with the United States Navy on June 21,
1968, and that he is scheduled for discharge in June 1972.
At the time of the election on April 7, 1970, Paine appeared
in person at the polls and, although his ballot was
challenged, the Regional Director held, in conformity with
a line of Board decisions, that Paine was eligible to vote and
that the challenge to his ballot should be overruled. Emil
Denmark, Inc., 121 NLRB 1370-72. On the other hand, and
more relevant to the immediate issue , other Board decisions
hold that for the purpose of determining majority status an
employee on military leave is excluded from the unit.
International Metal Specialties, Inc., 172 NLRB No. 39, fn.
8; Aero Corporation, 149 NLRB 1283, 1291; Greystone
Knitwear Corp. and Donwood, Ltd, 136 NLRB 573, 575, fn.
3. Consequently, and in accord with the last cited cases, the
Trial Examiner concludes that with respect to any unit
calculation as of February 28, 1970, Paine should be
excluded. With this exclusion there remained 19 employees
card in question were filled out in ink and the writer printed all the letters
rather than using a script . As noted earlier, Jackson credibly testified that
he witnessed Sleight fill out the card and execute it. Under the
circumstances , the Trial Examiner concludes that there is no merit to the
aforesaid objection of the Respondent.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate unit on the aforesaid date. At that time,
the Union had in its possession 11 valid authorization
cards.? Since these cards were secured from the employees
at a time when the Union's demand for recognition was
outstanding, and none of the employees sought to, or did,
revoke or rescind her card, the Board has held that such
cards may be used in computing the Union's majority
status. American Compressed Steel Corp., supra; Tower
Enterprises, Inc., d/b/a Tower Records, 182 NLRB No. 52.
Accordingly, as of February 28, 1970, the Union held valid
authorization cards from a majority of the employees in the
appropriate unit.
C. The Alleged Violations of Section 8(a)(1);
Analysis of the Evidence; Findings and Conclusions
in Connection Therewith
The General Counsel contends that during the period
preceding the election and shortly thereafter, the Respon-
dent engaged in numerous violations of Section 8(a)(1) of
the Act. These allegations are denied by the Respondent in
their entirety. To the evidence in connection with these
issues we will now turn.
As noted earlier, the initial representation hearing on the
Union's petition was held on February 26. Both President
Bush and employee Helen Deiter were among those who
testified at that hearing, the latter as a witness for the
petitioner. Bush conceded at the trial of the instant case
that at the hearing on the representation matter Deiter gave
testimony that was contrary to his. Evidence was offered at
the present trial that Bush subsequently threatened to
prosecute Deiter for perjury. Thus, Carol Smith testified
that, during the week after the representation hearing, Bush
told her that "Helen Deiter had lied at the hearing and that
he could have her on three counts of perjury, and he was
just being nice by not having her arrested." Employee
Helen Deiter testified that about April 1, President Bush
mentioned the subject to her and stated that he was going to
charge her with perjury. Deiter testified that a few days
later, however, Bush told her "Helen, . I am not going to
have you court-martialed after all. Everything has gone in
favor of our side..... Deiter did not testify as to whether
this second conversation occurred before or after the
election . The election, was held on April 7 and, as found
earlier, the Union did not win.
There was testimony from several employees that, prior
to the election, President Bush promised wage increases in
the event the Union lost the election and threatened to drop
a Company bonus plan if the Union won. Thus, Carol
Smith, an employee who has been quoted earlier, testified
that during the conversation had with Mr. Bush the week
after the representation hearing, or early in March, the
plant president told her that although ,he could not make
any promises at that time, the Company was Just starting to
make money and "that raises in pay would come
7 These were the cards of Baham, Beardsley, Burger, Deiter, Klugh,
Letson, Perry, Sleight, Smith, Shirley Truax, and Sonja Truax.
8 For some time, the Respondent has had a practice of paying a
quarterly bonus to the employees in a section based on the number of
hours saved on jobs completed by their unit during the preceding three
months
9 Klugh was engaged in "brazing," an operation described by Mr Bush
as low temperature welding.
gradually." Employee Deiter testified that in a conversation
which occurred about the first of April, Bush told her that
"if the Union got in there would be no more bonuses." s
Christine Klugh, another witness who was an employee
during the period in question, testified that shortly before
the election, President Bush had two conversations with
her. According to Klugh, on the first occasion Bush
complained to her that he was dissatisfied because work on
the order on which she was engaged was not progressing
rapidly enough. Klugh testified that thereafter she adjusted
her equipments and by the following day had doubled her
output. According to Klugh, after this occurred Bush spoke
to her again and told her that if the Union did not win the
election he would put her and the other employees on a
piece rate so that she could make from $3.00 to $3.25 an
hour. Klugh testified that at the time she was making about
$1.85 an hour and that she related this conversation with
Bush to Helen Deiter, a coworker.
There was testimony that President Bush told some of the
employees that, if the Union won the election, he might
move the plant or dismantle the machinery. Thus, Deiter
testified that, during the period shortly before the election,
Bush told her that if the Union won he might move his
machines out of the plant. According to Deiter, Bush stated
"if the Union got in . . . he could move his machines out.
. I can move them anytime and anywhere I want to.
[Neither] you nor John Jackson [the IAM representative]
can . . . tell me what I can do with my machinery." Deiter
testified that she told some of her coworkers, including
Carol Smith and Shirley Truax, about this latter conversa-
tion with Bush.
Mrs. Smith also testified that during the week prior to
the election President spoke to her while she worked at her
machine and that he expressed an inability to understand
why the employees would want a Union. According to
Smith, Bush told her that the union organizers were paid to
lie to the employees, but that he could not say anything
against the Union because it might be used against him. She
testified that he then told her that "if he wanted to smash
his machines, or if he wanted to move them to North
Carolina, that he could move ..... Mrs. Smith further
testified that after this conversation she discussed the
substance of it with five or six coworkers and with Jackson
at the next meeting which the Union held.
The record also contains the testimony of employee
Winifred Beardsley.i° According to the latter, about a week
after the election Mr. Bush told her that he did not feel that
the employees needed a union, that they were doing just as
well without one and that the machines in the plant were his
to do with as he pleased and if chose he could destroy them.
Beardsley testified that she reported this conversation to
Union Organizer Jackson.
At the hearing Mr. Bush categorically denied any of the
comments or remarks attributed to him by the employees
io At the time of the hearing in the instant case, Beardsley was ill and
unable to testify. However, the General Counsel and the Respondent
stipulated that a portion of her testimony , given in July 1970 at the hearing
on objections to the election, could be received as part of the record in the
complaint case. This stipulation and the accompanying portion of the
transcript of the hearing in the,, representation case were thereupon
received.
TRI-COUNTY TUBE, INC. 107
whose testimony is set forth above. On the other hand, he
testified that he was "dumb-founded" to discover, early in
January 1970 that his employees were interested in a
union.11 He further testified that thereafter, although his
attorney cautioned him that he should not express any
threats or hold out any promises to the employees, he
questioned his employees as to whether they had any
grievances on the assumption that any interest in a union
had been caused by dissatisfaction with their work.
According to Bush, all of the employees with whom he
talked during this canvass of their sentiment told him that
they had no grievances and that they were happy to have
employment. He also conceded that thereafter, at the
representation hearing, employee Helen Deiter gave
testimony which was contrary to that which he had given.
Finally, whereas Mr. Bush denied having told any
employees that he might move the plant if the Union won
the election, he conceded that during the period in question
he told others outside the employee complement that if his
operation in Nunda became noncompetitive he would
move.
Employees Deiter, Smith, and Klugh, who appeared at
the hearing and testified, were frank and convincing
throughout the course of their direct examination and
equally so during an extended cross-examination by able
counsel for the Respondent. Moreover, at the time of the
complaint hearing, none of them was any longer in the
Respondent's employ. Since there was no evidence that any
of them had been discharged or had quit other than of their
own volition, there was no apparent reason for them to
offer any testimony other than their honest recollection. On
the other hand, the general and specific denials of Mr.
Bush, when the latter was on the stand, were not similarly
persuasive. It is of some significance that Mr. Bush
conceded that he was, in effect, shocked to discover in
January 1970 that the employees were interested in
organizing a union and that thereafter he had numerous
conversations with them to ascertain what grievances or
dissatisfaction might have caused them to take this course.
In the light of all the foregoing considerations and in view
of the comparative demeanor of these witnesses when they
appeared and testified, it is the conclusion of the Trial
Examiner that Deiter, Smith, and Klugh were the more
persuasive, insofar as their testimony is in conflict with that
of Mr. Bush, and that the conversations in question
occurred substantially as they testified.12
On the basis of the foregoing evidence, the Trial
Examiner concludes and finds that the Respondent
violated Section 8(a)(1) of the Act in the following
instances:
(a) By President Bush's threat, voiced to employee Smith
late in February and to employee Deiter in March or April
that he could prosecute Deiter for perjury because of the
testimony she gave at the representation hearing.
(b) By President Bush's threat to employee Deiter, on or
11 The quotation is from Bush's testimony
12 It is likewise the conclusion of the Trial Examiner that the stipulated
testimony of Beardsley, set forth earlier, is more credible than that of Bush
insofar as there is any conflict.
13 This statement may be entirely correct although it is not fully
supported by the record. Mr. Bush did testify that, of all the witnesses who
testified at the trial of the complaint case, only Virginia Baham was still on
about April 1, that, if the Union won the election, bonuses
might be eliminated.
(c) By President Bush's remarks to employee Deiter, in
March or April, to employee Smith early in April, and to
employee Beardsley the week after the election to the effect
that, if the Union organized the employees, he could move
the plant to North Carolina, move the equipment out of the
plant, or destroy the machinery, all of which conversations
were subsequently related by Deiter, Smith, and Beardsley
to their coworkers, or to the union representative.
(d) By President Bush's statement to employee Smith,
early in March, that although he could not make any
promises at that time, because of the Union, raises for the
employees would be forthcoming.
(e) By President Bush' s promises to employee Klugh that
if the Union did not get in he would put her on a piecework
rate that would enable her to earn substantially more than
she was getting.
D. The Alleged Violation of Section 8(a)(5);
Contentions of the Parties; Findings and Conclusions
With Respect Thereto
The General Counsel contends that the Respondent
violated Section 8(a)(5) of the Act by its refusal to bargain
with the Union, that the Respondent's violations of Section
8(a)(1) of the Act are of such an aggravated character as to
preclude the holding of a fair election and that the
circumstances in this case require that the remedial order
include a requirement that the Respondent bargain with the
Union. The Respondent denies all allegations that it
violated the Act and further contends that, in any event,
any majority which the Union might have had was not
dissipated by its actions. The Respondent argues that it
made no attempt to delay the election in question; that,
shortly after the Union's petition was filed, it executed a
stipulation for a consent election and that it thereafter
cooperated fully in expediting the representation matter.
Finally the Respondent also asserts that 10 of the 11
employees whose cards were produced by the Union have
voluntarily left the employment of the Company,13 so that
a bargaining order entered at the present time would only
result in the disenfranchisement of the Respondent's
present employees.14
As found earlier herein, the Union's initial demand for
recognition, first made on December 30, 1969, was a
continuing one so that, notwithstanding the limitations
imposed by Section 10(b), as of February 28, 1970, there
was, in effect, a request for recognition and bargaining
from the Union and a rejection of this request by the
Respondent. Moreover, it has also been found that the
production and maintenance unit for which the Union
sought representative status was an appropriate one.
Finally, it has likewise been found that as of February 28,
1970, the Union had secured valid authorization cards from
the payroll. On the other hand, card signers Judith Burger and Ruth Sleight
did not appear at the hearing, nor did Winifred Beardsley whose testimony
was the subject of a stipulation. Consequently, from Bush's statement it is
not clear whether any of the last three named were still employees of the
Company at the time he testified on March 31, 1971.
14 President Bush testified that at the time of the trial in the instant case
the Respondent currently had about 14 employees.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II of the 19 employees then in the aforesaid unit.
Consequently, the Union had a majority on that date and
thereafter the Respondent was obligated to recognize the
IAM and bargain with it. In failing to do so, the
Respondent violated Section 8(a)(5) of the Act. There
remains for decision the question as to whether a
bargaining order is warranted by the facts in this case. In
reaching a conclusion as to this issue, a recapitulation of the
sequence of events found to have occurred here is
instructive.
On April 7, 1970, the Board-conducted election was held
and the Union lost by a narrow margin. The Trial
Examiner has found that between February 28 and the date
of the election, the Respondent, through President Bush,
threatened employee Deiter with loss of bonuses if the
Union won the election, promised employee Klugh that she
would get a wage increase if the Union lost, and told
employee Smith that although he could not make promises
during the pendency of the election the employees could
assume that, since the Company was beginning to make
money, raises would be forthcoming. During the same
period President Bush threatened employee Deiter with
prosecution for perjury in connection with her testimony at
the representation hearing, and told Deiter and Smith that
if the Union got in he could move the machines out of the
plant, move the plant to North Carolina, or dismantle the
machinery. Subsequent to the election and while a
resolution of the issues raised by objections to the conduct
affecting the election was still pending, Bush reiterated
remarks to employee Beardsley that were substantially
similar to the threats which he had voiced to Deiter and
Smith.
The above-described action and conduct on the part of
President Bush during the preelection period most certainly
tended "to undermine [the Union's] majority strength and
impede the election processes." N.L.R.B. v. Gissel Packing
Company, 395 U.S. 575, 615. In the latter opinion the
Supreme Court held that the decision as to whether a
remedial bargaining order is warranted will depend on "the
extensiveness of an employer's unfair practices in terms of
their past effect on election conditions and the likelihood of
their recurrence in the future." Gissel, supra, 614. In the
present instance, since the violations in question were
committed by the Respondent's principal executive officer,
the prospects of their recurrence in another election contest
are substantial. In these circumstances the Board has held
that the unambiguous cards validly executed by a majority
of the employees represent a more reliable index of
employee sentiment as to the union issue than another
election could provide and that effectuation of the policies
of the, Act requires that the employer be required to
bargain , upon request, with the union . United Packing
Company of Iowa, Inc., 187 NLRB No. 132; WKRG-TV,
Inc., 190 NLRB No. 34, Colonial Knitting Corp., 187 NLRB
No. 134. 15 Whereas the Union had a majority in the
appropriate unit,^on February 28, 1970 , the threats and
promises voiced by President Bush thereafter must be, and
are, held to have undermined this majority and prevented a
fair election . By such conduct the Respondent violated
both Section 8(a)(5) and ( 1) of the Act . In the light of the
above-cited cases , the Trial Examiner concludes and finds
that a bargaining order is required to remedy the effects of
these unfair labor practices.16
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. -All production and maintenance employees at the
Respondent's Nunda plant, exclusive of office clericals,
professional employees, guards and supervisors, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of the Act.
3. At all times since February 28, 1970, the Union has
been the exclusive representative, for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act, of all the employees in the aforesaid appropriate
unit.
4. By the threats to employees of reprisal for supporting
the Union and promises of benefits for refraining from such
support, found heretofore to have been voiced by President
Bush, the Respondent violated Section 8(a)(l) of the Act.
5. Since February 28, 1970, the Union has been the duly
designated exclusive collective-bargaining agent of the
Respondent's employees within the aforesaid appropriate
unit.
6. By refusing at all times since February 28, 1970, to
bargain collectively with the Union as the exclusive
representative of the employees in the aforesaid unit, and
by the acts set out in paragraph 4, above, which
undermined the Union's majority representative status and
prevented a fair election, the Respondent violated Section
8(a)(5) and (1) of the Act.
7. The above unfair labor practices affect commerce as
defined in Section 2(6) and (7) of the Act.
8. The General Counsel has not proved by a preponder-
ance of the evidence that the Respondent interfered with,
restrained, or coerced its employees in the exercise of the
rights safeguarded by the Act, except by the specific acts
and conduct found herein to have been violated.17
15 Other cases cited by the Respondent in its brief, represent various
divergent views as to somewhat comparable situations However, none of
them is clearly applicable to the facts of the instant case Cf., N.L R B. v.
General Stencils, Inc., 438 F 2d 894 (CA 2), Stoutco, Inc., 180 NLRB No.
11; Blade-Tribune Pubbrhing Co., 180 NLRB No. 56; Schrementr Bros, Inc,
179 NLRB No. 147.
16 In its brief the Respondent argues that because of substantial
employee turnover in the past year a bargaining order entered at this time
would result in the disenfranchisement of its present employees. This might
have presented an appropriate matter for consideration had the
Respondent refrained from unlawful conduct subsequent to the Union's
demand for recognition As seen from the findings set forth above,
however, Respondent's unlawful course of action does not merit a
deviation from the general rule that the wrongdoer can not profit from a
change in circumstances brought about by normal turnover in the plant
complement. N L R B. v. Benne Katz, et al, 369 U.S 736. 747-748, In 16,
NLRB v Mexia Textile Mills, Inc., 339 U.S. 563, 568; Franks Bros. Co v.
N.LR B, 321 U.S. 702,705-706; N.LRB v. P. Lorillard Co., 314 U.S. 512,
513; N.LR.B v. Lou De Young's Market Basket, Inc, 430 F.2d 912, 915
(C.A 6); G P D, Inc v. N.LR B., 430 F 2d 963, 964-965 (C.A. 6)
17 E.g., the complaint also alleged that the Respondent promised its
employees easy jobs, reemployment , and assistance in obtaining
unemployment benefits if they refrained from affiliation with the Union or
giving any assistance to it. However, the record contains no evidence to
(Continued)
TRY-COUNTY TUBE, INC. 109
THE REMEDY
Having found that the Respondent interfered with,
restrained, and coerced its employees in the exercise of their
Section 7 rights under the Act, the Trial Examiner
recommends that the Respondent be ordered to cease and
desist therefrom and to post notices so indicating. Having
further found that by reason of such interference, restraint,
and coercion the Respondent undermined the Union's
majority representative status among its employees in an
appropriate unit and prevented a fair election, the Trial
Examiner will recommend that the Respondent be ordered
to recognize and bargain with the Union, upon request, as
the exclusive collective bargaining representative of its
employees in the unit.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, the
Trial Examiner hereby issues the following recommended:
ORDER's
Tri-County Tube, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Directly or indirectly threatening unit employees with
economic reprisal for supporting the Union, promising
them economic benefits for desisting from such support, or
otherwise interfering with, restraining, or coercing them in
the exercise of their rights under Section 7 of the Act.
(b) Failing or refusing to bargain collectively with the
Union as the exclusive bargaining representative of its
employees.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the aforesaid Union, as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement. The
appropriate unit is:
All production and maintenance employees at the
Respondent's Nunda plant, exclusive of office clericals,
professional employees, guards and supervisors.
(b) Post at its plant in Nunda, New York, copies of the
attached notice marked "Appendix." 19 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by the Respondent's
authorized representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, mclud-
mg all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 3, in writing
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.20
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
is 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
19 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the said Regional Director, in writing, within 20 days from the
date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you with loss of bonuses or
any other benefits, or that we will move the plant from
Nunda or dismantle the machinery if you vote for, or
otherwise support, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, or any
other union.
WE WILL NOT promise you wage increases or any
other benefits if you vote against or otherwise refrain
from supporting the aforesaid union, or any other
union.
WE WILL NOT otherwise interfere with, restrain, or
coerce you in the exercise of your right to self-
organization , to form, join, or assist any labor
organization, to bargain collectively through represent-
atives of your own choosing, or to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid, or to refrain from any or all such
activities.
WE WILL, upon request, meet and bargain collective-
ly with International Association of Machinists and
Aerospace Workers, AFL-CIO, as your exclusive
representative in the appropriate bargaining unit,
regarding wages, rates of pay, hours of work, and other
conditions of employment, and sign our name to an
agreement containing any understanding reached. The
bargaining unit is:
All production and maintenance employees at our
Nunda plant, exclusive of office clericals, profes-
sional employees, guards, and supervisors.
TRi-COUNTY TUBE, INC.
(Employer)
giving any assistance to it However, the record contains no evidence to Dated By
support any such allegations (Representative) (Title)
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by or covered by any other material.
-anyone.- Any questions,caneerning.this notice or compliance with
This notice must remain posted for 60 consecutive days its provisions may be directed to the Board's Office, Fourth
from the date of posting and must not be altered , defaced, Floor The 120 Building, 120 Delaware Avenue, Buffalo,
New York 14202, Telephone 716-842-3100.