Wabana, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1964

146 N.L.R.B. 1162 (N.L.R.B. 1964)

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employees if serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Ac of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614
National Newark Building, 744 Broad Street , Newark , New Jersey , Telephone No.
Market 4-6151, if they have any questions concerning this notice or compliance
with its provisions.
Wabana, Inc. and International Union of Electrical , Radio and
Machine Workers, AFL-CIO. Case No. 05-CA-1739. April 29,
1964
DECISION AND ORDER
On December 10, 1963, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging. in certain unfair labor
practices within the meaning of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at thehearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Wabana,
Inc., its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, and the com-
plaint with respect to any alleged unfair labor practices other than
those found by the Trial Examiner is hereby dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner A. Norman Somers on August 6 and 7,
1963, in Frankfort, Indiana, on a complaint alleging, and an answer denying, viola-
146 NLRB No. 147.
WABANA, INC. 1163
tions by Respondent of Section 8(a)(5) and (1) of the Act.' The General Counsel
and Respondent, through their respective counsel, presented evidence and (waiving
oral argument) have filed briefs, which have been duly considered. Upon the entire
record (as corrected on notice to all parties) and my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Wabana, Inc., is an Indiana corporation, where, in a plant in Frank-
fort, Indiana, it makes electrical assemblies as the "manufacturing division" of an
enterprise owned by its parent, Unilectric, Inc. Unilectric is a Delaware corpora-
tion , with its main headquarters in Milwaukee , Wisconsin , and an office also in
Chicago, Illinois. Nicholas G. Polydoris, president of Unilectric and of Respond-
ent, personally conducted the negotiations here involved.
The finished products shipped from the Wabana plant in Frankfort to points out-
side the State of Indiana exceed $50,000 a year. Respondent admits and I find that
it is an employer engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Charging Union, International Union of Electrical , Radio and Machine
Workers, AFL-CIO ( hereinafter referred to as IUE, or the International), is a
labor organization within the meaning of the Act . So also is Local 952 of the IUE,
hereinafter referred to as the local.
III. THE UNFAIR LABOR PRACTICES .
A. The issues and statements of the opposing positions concerning them
The IUE, on the basis of the results of an election conducted by the Board among
Respondent's production and maintenance employees, was certified on January 7,
1960, as the exclusive bargaining representative of these employees. After this the
IUE and its Local 792 (the latter composed solely of Respondent's employees and
jointly designated in the contract with the International as the Union), executed
two contracts with Respondent, one in 1960, which expired in 1961, and the second
on September 8, 1961, which expired June 15, 1963.2
The conduct constituting the claimed unfair labor practices occurred during nego-
tiations of a "supplemental agreement" to the then existing, contract. The General
Counsel charges Respondent with a systematic series of acts undermining the Union's
status as the employees' bargaining representative, each in violation of'Section 8(a)
(5) and (1), climaxed by a general violation in the form of a total repudiation of
the bargaining obligation altogether. Respondent disputes the claimed illegality of
the acts preceding the total repudiation and justifies the repudiation as based on a
"good-faith doubt" of the Union's majority. The General Counsel challenges the
basis for the asserted doubt ( a decertification petition filed by three defecting officers
of the local during the later stages of the series of claimed specific violations), first
on the ground of the insufficiency of the petition in the absence of a showing that it
was supported by a majority of the employees, and secondly on the ground that the
employer in any event has no standing to claim "good faith" for a doubt which it
has raised in the context of its own unfair labor practices, aggravated here by a
motive to alienate the employees from the Union .3
' Charge filed April 23, 1963; complaint issued June 14, 1963.
2 Although the record does not Indicate precisely when the local was formed, the in-
ference, in the light of customary practice , is that upon being certified as bargaining rep-
resentative of the employees in the plant , the International chartered the group composed
solely of Respondent 's employees as a separate local-the actual contract being negotiated
by a representative of the International and the local performing basically to handle
grievances at the initial steps (the third or final step being one which, under article VI of
the contract, specifically requires that a "Representative of the International" be present).
The contract, on its face, is separately executed for the International by its "field rep-
resentative" and for the local by the employees at the plant, who were its officers at the
time.
8 As a separate unfair labor practice the General Counsel accuses Respondent of specific
sponsorship and support of the decertification petition. Since the conduct thus charged
is not crucial to whether the employer, In the circumstances, can predicate a "good-faith
doubt" in justification of its repudiation, that item will be treated separately after con-
sideration of whether Respondent violated Section 8(a) (5) and ( 1) even apart from it.
1164. DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
B. The sequence of the negotiations and the conduct culminating in the
ultimate repudiation 4
1. Meetings in 1962 over a supplemental agreement for changes in the
existing contract
President Polydoris of Respondent and Field Representative Sheets of the Inter-
national met at the Frankfort plant on September 10 and November 9. Present at
each session also were William McDougall, the plant superintendent in Frankfort,
and the three employees referred to by Sheets as the "grievance committee" composed
of the president, the vice president, who is the chief steward, and the financial secre-
tary of the local. 'At each session (apart from grievances over seniority violations,
which Polydoris promised to correct) they discussed a change in the wage provision
and the inclusion in the contract of an "agency shop" clause.
At the September 10 meeting, the conferees agreed that the incentive plan, the
then prevailing basis of pay under the contract, was too "unwieldly," because the
production standards were beyond the reach of many girls and Respondent was not
equipped to make the corrective time studies. The agency-shop clause was deferred
for further discussion. At the November 9 meeting, Polydoris agreed that there
should be a changeover from the incentive plan to a straight hourly pay' rate and
stated that Respondent would prepare a schedule and embody it in a proposal to
be submitted to Sheets and the local. Sheets proposed that the wages-and the agency-
shop clauses be considered together for incorporation in a single supplemental agree-
ment. Polydoris first stated they should be separately considered, because he was
"leery" about the validity of an "agency shop" under Indiana's "right to work" law.
Sheets then handed Polydoris a reprint of the decision of the Indiana Superior Court
in Meade Electric Company v. Hagberg, as reported in 34 CCH Labor Cases #71,
525. This decision, rendered at nisi prius on May 19, 1958, as affirmed by the
Indiana Appellate Court on June 19, 1959 (129 Ind. App. 631. 159 N.E. 408, 44
LRRM 2312), is the authoritative construction of Indiana's "right to work" statute
(that outlaws contracts making membership in a union a condition of employment)
as not proscribing an agency-shop contract (that conditions the job on the employee's
paying a sum equivalent to the membership obligation but leaves the choice with
him as to whether or not to be a member).5 The Meade opinion set forth a verbatim
copy of the agency-shop clause there in issue. Sheets blocked it out for Polydoris
in ink, informing him that this would be the clause proposed by the Union, except
that here there would be no requirement to pay assessments as in Meade, because
the Union imposed none on the employees.
Polydoris said -he would send the "booklet" (the reprint of the decision) to his
lawyer, and that as soon as he heard from him, he would get in touch with Sheets.
It was then understood that the two provisions would be considered together for in-
clusion in one supplemental agreement-that Respondent would submit its proposal
for the wage changeover and would also give the Union its position on the agency-
shop clause. As to when this would be done, Polydoris said that he was then busy
coping with. creditors of debts incurred by Respondent under its prior management..
Sheets accordingly agreed to wait until after the end of the year to hear from
Respondent.
2. Respondent's direct offer to and polling of employees on wage proposal
before submission thereof to the Union
While Field Representative Sheets, in accordance with the arrangement on
November 9, was waiting for Respondent to submit its wage proposal , Respondent
on January 28 submitted .one directly to the employees and polled them concerning
it. The proposal submitted to the girls for a vote read as follows:
* The negotiations between the Respondent and the Union took place -between Polydoris,
president of Respondent , and Ted Sheets, the field representative of the International.
Sheets' testimony concerning them was not specifically denied , and in all essential par-
ticulars ultimately stated by Polydoris to be not disputed by him.
'The Meade decision underlays the holding of the Board and of the Supreme Court in
General Motors Corporation, 133 NLRB-451 , enfd . 373 U.S. 734, that the obligation of an
employer of a plant in Indiana to bargain over an agency-shop contract was not affected
by Section 14(b) of the Act, since such a contract does not offend the Indiana law as
interpreted in Meade, and that an employer's obligation under Section 8(a) (5) to bargain
concerning an agency shop in Indiana , as in a State not having a right-to-work law, hinged
solely on whether the agency shop conformed to the proviso of Section 8(a)(3) of the
Act (the conclusion being that it conformed with the 8(a) (3) proviso and thus was a
"mandatory subject" of bargaining within the employer's obligation under 8(a) (5)).
WABANA, INC. 1165
There has been a desire expressed to have all. of the girls- working at the
Wabana Division of Unilectric , Inc., on the same wage rate . .The following
is a proposal which we are offering to you to.' discuss and to vote on:
(Ito 4: the specified hourly rate for designated groups.)
5. We hope that you will do your best to make the prescribed rate or more.
6. This we hope will be a fair and equitable system to all-girls.
7. A bonus system will be a part of this proposal but will depend on profits
and will be paid on the basis of SENIORITY.
8. If accepted by all we will put this into effect by February 1, 1963.
9. Evening shifts will be .10/hr. more.
10. Everything else will stay as is.
(S) Nicholas G. Polydoris,
NICHOLAS G. POLYDORIS,
President.
The signatures below are for ballot
verification and-do not constitute
approval or disapproval of this proposal.
1. (S) FRIEDA HUNT
2. (S) MARY MATHEWS
3. (S) CARRIE RUSK
The notation at the lower left corner came about as follows: 6
The day before the poll, Polydoris had assembled the employees and discussed
with them the wage proposal and also the next day's poll. While thus speaking
with the employees as a group , he asked the three employees who were then the
officers of the local to be the ones to check the ballots and attest in writing to the
accuracy of the count. Rusk, president of the local (supra, footnote 6), asked that
her signature and those of her two fellow officers be thus qualified-as was done.
Also, after first requesting and receiving Polydoris ' permission to address the group,
she told the group this was "strictly the Company 's proposal , none having yet been
made by the Union, and that "any decision would have to be through the Union."
Polydoris did not reply, but the body of the proposal, as noted above, with its
description as being offered directly to the employees "to discuss and to vote on"
without the Union being mentioned, and the promise to put it into effect on a day
within the same week " if accepted by all," remained the same.
The vote was 31 to 11 in favor of the wage proposal.
Field Representative Sheets later that day complained to Polydoris that Respond-
ent's action in submitting the wage proposal directly to the employees for a vote
before proffering it to the Union was "an unfair labor practice." Polydoris replied
"he had a right to know how his employees felt, and that was one way of finding
out." Respondent claimed that what had been done here was in "good faith"
as was also its entire conduct-a matter to be treated later . It also stated that even
if "misguided," the conduct here was "cured" by Polydoris ' later negotiating the
wage proposal with the Union and executing with it a supplemental agreement
concerning wages. This poses the issue of whether the employees ' right of collec-
tive bargaining under Section 7, includes , in addition to making the final decision
through the bargaining representative , the right as well to receive proposals through
the representative and counseling with it in formulating the initial position, and
whether precommitting the employees as individuals before submission of the pro-
posal to the representative "of necessity obstructs [ later] bargaining ," a matter also
discussed in the conclusion . The implication , further, that such obstruction was
not independently demonstrated here is refuted by the record , showing Respondent
to have used the results of the poll to the Union 's detriment in the later negotiations.
Until then the dealings had proceeded on the understanding that the wage proposal
would be negotiated and embodied in an agreement concurrently with the agency-
shop proposal . After this Respondent used the result of the poll on the wage pro-
vision as a means of reversing that commitment . In a letter thereon to Sheets on
February 14, Polydoris wrote in part:
The majority of the girls voted for this proposal. I feel that it is the duty
of the Union to accept what the majority wants .7
6 The description was given by Carrie Rusk, then president of the local , substantially
corroborated by Polydoris.
'The wedge between the employees and their representative inhering in the wording of
the January 28 proposal submitted for a vote and of this letter of February 14 was accentu-
ated further by the manner of the routing of the letter. In the lower left, the "cc" shows
a routing not to the local but to the "Girls at Wabana Pit [sic]."
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union yielded on the point, and on February 22 it executed a separate
supplemental agreement on the wage clause, while negotiations were still pending
over the agency shop. How Respondent handled that aspect of the negotiations is
dealt with in the next section.
3. The negotiations on the agency-shop clause (and an intervening unilateral
change in the insurance coverage)
a. Agreement on a poll and on wording of clause to be voted on by the employees
On January 28, after Sheets protested Respondent's polling the employees on the
wage proposal, the parties reaffirmed the arrangement of November 9. Respondent
was to submit to the Union its formal wage proposal, and the Union its counter-
wage-proposal and the proposal on the agency-shop clause. An added element was
that Respondent was to poll the employees on the agency-shop clause. The record
is not clear as to who initiated that means of dealing with that provision, but the
fair sense of the dealings indicates that it was mutually assumed that that was how
to handle it in view of the pattern set by Respondent in dealing with the wage pro-
posal and :that the decision hinged on whether the majority would approve or reject
the agency-shop clause at the poll.
On February 9, after receiving the formal wage proposal from Respondent, Sheets
and the local drew up a counter wage proposal and also a draft of the agency-shop
clause. They brought this to the plant the same day, and showed it to Superin-
tendent McDougall. He said the revision of the wage proposals would present no
problem, but that only Polydoris had authority to discuss the agency-shop proposal.
That night Sheets spoke to Polydoris on the telephone. The conversation pro-
ceeded on the previously mentioned premise that the decision on the agency shop
hinged on the majority vote at the poll and that the negotiations concerning it and
the wage proposal would take place and be consummated together. Also that day,
Sheets mailed Polydoris a copy of the agency-shop proposal he had shown to
McDougall, along with a covering letter. The proposal at the bottom had a
sentence stating that the agency-shop agreement would be "put into effect as of the
change over of rates to straight hourly pay."
The parties met again at the plant in Frankfort on February 11. Polydoris now
announced he would hold up the poll on the agency-shop clause until March 28,
and that the wage clause negotiations would have to proceed separately without
awaiting the poll on the agency shop (a position which, after the meeting, he recon-
firmed in his previously mentioned letter of February 14, claiming the vote of "the
majority of the girls" on the wage poll was binding on the Union). Sheets then
insisted that the delay on the agency-shop poll should not change the voting com-
position on the agency shop, i.e., that the same employees vote on the agency shop
as had voted on the wage proposal, without the participation of new employees inter-
veningly hired. Polydoris agreed. Thereupon the parties drew up and signed a
paper agreeing upon the exact wording of the agency-shop clause to be submitted
to the employees for a vote. It read as follows:
VOTE TO BE TAKEN ON MARCH 28, 1963
You will be asked to vote on an Agency Shop on March 28.
(a) Membership in the UNION is not compulsory. Employees have the
right to join, not to join, maintain or drop their membership in the UNION,
as they see fit. Neither party shall exert any pressure on or discriminate against
an employee as regards such matters.
(b) Membership in the Union is separate, apart and distinct from the assump-
tion by one of his equal obligation to the extent that he receives equal benefits.
The Union is required under this Agreement to represent all of the employees
in the bargaining unit fairly and equally without regard as to whether or not
an employee is a member of the Union. The terms of this Agreement have
been made for all employees in the bargaining unit and not only for members
in the Union, and this Agreement has been executed by the EMPLOYER after
it has satisfied itself as the result of a secret ballot that the UNION is the choice
of a majority of the employees in the bargaining unit and the UNION has been
certified by the National Labor Relations Board. Accordingly, it is fair that
each employee in the bargaining unit, pay his own way and assume his fair
. WABANA, INC. 1167
share of the obligation along with the grant of equal benefits contained in -this
Agreement. ..
(c) In accordance with the policy set forth under subparagraphs (a). and
,(b) of this Article, all employees shall, as a condition of continued employ-
ment, pay to the UNION, the employees' exclusive collective. -bargaining repre-
:SentatiVe, an amount of money equal -to that paid to other employees -in the
bargaining unit who are members of the UNION, which shall be limited, to an
amount of money equal to the UNION's regular and-usual initiation fees,.and
its regular and usual dues. For existing employees, such payment shall com-
-mence forty-five (45) days following the date of execution of this Agreement and
-for new employees, the payment shall start forty-five (45) days following the
.date of employment.
ALL employees will participate equally in the financing of the -UNION.
This is to be done so that equal benefits can be had by all and therefore
,equal obligations must be met by all.
If you have any questions, feel free to contact Martha Jean Mohr [the then
new president of the local]. .
-(S) Nicholas G. Polydoris, .
NICHOLAS . POLYDORIS.
(S) Ted Sheets,
TED -SHEETS .8
tb. Intervening unilateral change in insurance coverage preceding March 28
poll; Polydoris' comments on being informed of union-bypassing character
of the action
While the parties were thus awaiting the date of the poll on the agency shop, Re-
.spondent took unilateral action on another matter. On-March 13, it changed, effec-
tive April 1, the carrier and the coverage on insurance. That was the subject of a
separate article in the contract. The original contract, under article XII, entitled
"Insurance," specifically described the coverage and carrier (Lincoln National In-
surance Company). Article XII of the subsisting contract executed 1961 read,
"Covered by Supplemental Agreement." What had apparently happened was that
when the. 1961 contract was executed, Respondent, then still under the prior manage-
ment, had been contemplating a change from Lincoln to another carrier. Sometime
'later , Respondent 's then attorney under the earlier management , took up with Sheets
-a proposal to change the carrier from Lincoln to John Hancock, and pointed out to
-Sheets certain advantages in the change. The Union, after considering the matter,
gave its assent, and Respondent made the change to John Hancock, with the parties
.omitting the execution of a supplemental agreement embodying the consensually
arrived at change.
After the new managmeent took over, Polydoris, on being informed of dissatis-
faction among some employees over the delay in the processing of claims by John
-Hancock, decided to change over to Travelers. In contrast with prior management's
recognition of the Union's interest in the matter as the employees' representative,
Polydoris for Respondent, although admittedly familiar with article XII of the con-
tract, made the change without previously consulting or even notifying the Union.
The first and only ones notified were the employees directly. Polydoris assembled
them at a meeting , where he told them of the change and espoused its features, then
introduced one'of two representatives of Travelers, also present, to explain the details.
When Sheets met with Polydoris at the plant on March 28, he protested this new in-
-stance of bypassing the Union as the employees' bargaining representative. Polvdoris
replied, "What are you going to do? Put, me in jail?" And he added that "if he
-had to go through the Union every time he went to the [washroom] he'd close the
joint down" Polydoris had earlier been reminded of the Union's interest in the
matter by two officers of the local the day he announced the change to the group.
Right after that meeting, Martha Jean Mohr and Joan Heaton, the local's new presi-
dent and financial secretary, respectively, asked him whether this "didn't have to go
e The document signed February differed from the clause submitted on February 9 only
in respect to the matter which appears after (a), (b), and (c). The February 9 proposal
,had a final paragraph which included . inter alia, a provision that after 10 days' notice to
the employer of an employee's dues delinquency, he was to be discharged unless lie inter-
-veningly made good his arrears. As appears from the reproduction, none of that matter
Is on the paper signed February 1-1.
744-670--65-vol. 146-75
1168 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD
through the Union," to which he heatedly retorted, "Why do the girls even need a
union for? ... Why don't they go out and collect a dollar from each employee and
get a lawyer and sue me?" °
c. The agency-shop poll on March 28: Respondent's departure from the agree-
ment concerning the composition of the voters, its plea to the employees
to adopt individual bargaining; its unsuccessful effort to reserve to it final
decision on the agency shop; the result of the poll
When the poll was about to be taken, Polydoris, despite his prior agreement that
his delaying the agency-shop poll would not alter the voting composition on it from
the one that had been polled on the wage provision, now insisted that the vote be
among all present employees , including those hired since January 28, and Sheets
yielded to this.
Pursuant to previous arrangement, Polydoris and Sheets then addressed the em-
ployees. Polydoris spoke first.10 His talk consisted, in the main, of a plea in the
manner of his statement ,to the two local officers at the day of the meeting announc-
ing the change in the insurance coverage (supra , footnote 9) that the employees
abandon representation by the Union in favor of dealing individually with him.
He told them that "a girl didn't need a union, that he was a fair man and would
treat everyone right.'.' One of the girls replied that it "wasn't that we didn't trust
him or anything but when it comes to the girls' jobs we just needed security and
someone 's word just wasn 't good enough ." He answered that "there was no sense
of their having to pay $4.25 for a union, when if he mistreated them they could
take up a buck and get them a lawyer and sue him if he didn't treat them right."
He also questioned what was being done with the dues collected from the girls,
whereupon Joan Heaton, the financial secretary, gave him a breakdown on how the
money was used, stating also how much went to the International and how much to
the local. He then said "half the girls didn't even know what the Agency Shop was"
and asked "the girls that actually knew to raise their hands." 'First four and then
"practically all the rest" raised their hands.
They then proceeded to the ballots. As prepared by Respondent for distribution,
they read as follows:
IN ORDER To OBTAIN AN EXPRESSION OF THE EMPLOYEES OF THE WABANA
PLANT OF UNILECTRIC, INC. WITH RESPECT TO AN AGENCY SHOP, THE FOLLOW-
ING BALLOT Is TAKEN
q For Agency Shop
q Against Agency Shop'
You do not have to be a member of the Union to work at'Unilectric. If this
proposal is agreed to by the girls and approved by management of this company,
$4.25 will be deducted once a month from your wages.
9 The evidence of the above was the testimony of Linda Smith, a trustee of the local,
concerning a report Mohr gave of this conversation to Sheets and the local committee:
(Mohr, Heaton, and Hunt were the three officers who later, on April 8, filed the de-
certification petition after a meeting with Polydoris in Chicago on April 4, the same week
that Polydoris failed to show up at an appointment he had made, after the favorable vote
by the employees, to be at Frankfort on April 2 to sign the agency-shop.clause.) Smith
testified to Mohr's report of the conversation with . Polydoris. without objection. This
vested the testimony concerning Mohr's recital with internally probative competence.
Diaz v. U.S., 223 U.S. 442, 450; I Wipnzore on Evidence (3d ed.) 918. Its "naturally
probative effect" (Diaz, at p. 450) was here reinforced by other factors adding to its re-
liability: It was not denied and it corresponded in tenor with the statements established
by direct and undenied testimony as having been made by Polydoris on other occasions.
One such instance was his statement to Sheets ; another was his statements in his speech
to the girls immediately before the agency-shop poll, set forth in the ensuing part of
the text.
10 There is nothing in the record concerning Sheets' replying address. The substance of
Polydoris' address was detailed by Linda Smith; a trustee. Sheets and Polydoris too testi-
fied concerning it. Polydoris merely related that portion of his address in which he
quoted himself as arguing against the requirement to pay dues. He did not, however, deny
the details of his address given by Linda Smith as partially corroborated by Sheets' own
brief account. Smith, a witness singularly levelheaded and dispassionate despite her still
continuing adherence to the Union (infra, footnote 30), was convincing in her manner
and the forthrightness of her responses. She is credited.
WABANA, INC. 1169
The last paragraph was deleted before the vote was taken . It happened as
follows: 11 Sheets protested that.its language could be construed as reserving the
final decision in Polydoris, in which case, he stated, "there wouldn't be any use to
take ,the vote." Polydoris then said, "All right, the girls can strike it off. Go ahead
with the vote." The whole paragraph was crossed out by interlineation ink and the
vote was taken. The final tally was as follows:
For Against Total
Day Shift---------------------------------------- 26 16 42
Night Shift-------------------------------------- 10 3 13
Total----------------------------------------- 36 19 55
d. Respondent's promise, after the poll, to sign the agency-shop clause; the failure
to keep the appointment for it; renewal of the promise after the three local officers
filed a decertification petition
After .the count, Sheets asked for a meeting to discuss renewal of the contract
(which was to expire June 15) and also to execute the supplemental agreement con-
taining the agency-shop, provision as thus approved by the majority. Polydoris
assented, stating he had already written the IEU's vice president agreeing to such a
meeting. An appointment was accordingly made for the morning of Tuesday,
April 2.
Sheets called at the plant on April 2 at the appointed hour. Polydoris did not
show up. Superintendent McDougall called the Chicago office, and was told Poly-
doris had gone to Milwaukee. He then called Milwaukee and was told Poly-
doris had not yet arrived. Sheets finally reached Polydoris at Chicago the morning
of Monday, April 8, by telephone, and asked him if he had forgotten the meeting
on April 2. Polydoris replied "No," but that he had been "busy" and "he would
be down sometime, that week." Sheets asked about the agency-shop clause, and
Polydoris stated "he had given it to his lawyers, but he hadn't heard from them yet,
and he would -get it fixed up so that he could bring it down with him."
On April 11, Sheets called at the plant with Charles Ziegler, a fellow field repre-
sentative of the IUE (who had been Sheets' predecessor in that area, he having been
the signatory for the International of the first contract, made in 1960). There they
met with Polydoris and Plant Superintendent McDougall. By that time, it became
known that on ,the afternoon of Monday, April 8, Mohr, Heaton, and Frieda Hunt,
the three top officers of the local, had been to the Board's Regional Office in
Indianapolis and had filed a decertification petition (supra, footnote 9). The specific
circumstances are discussed in connection with the General Counsel's separate claim
of Respondent's complicity in this event, which is later dealt with as an item distinct
from the alleged refusal to bargain arising out of the dealings between the parties.
We here treat it solely as it entered into the discussions. It had also come to light
that pursuant to an appoinment made over long distance late Wednesday, April 3,
they flew to Chicago next morning and met with Polydoris in a restaurant in the
airport for several hours, returned Friday to Frankfort and solicited signatures at
certain employees' homes over the weekend, filed the petition on Monday, finally
coming back to the job on Tuesday, after an absence of 31h workdays. In his talk
with Sheets over the telephone the morning of Monday, April 8, Polydoris did not
disclose that be had had the meeting in Chicago that culminated in the girls' action
later that day in filing the petition. The formal notification of the filing of the
petition was received in the mails the morning of April 9.
At the meeting on April 11, Polydoris introduced the subject himself. He
opened with "What happened? Goodness gracious . . . I can't understand what
happened here," and that "in his wildest dream or nightmare, he would never expect
such a thing ,to happen." He went on to explain that after the girls called him the
night of the third, he called his attorney, who advised him "he couldn't even buy
them a cup of coffee," and that he adhered to that stricture to the letter. Sheets then
complained that it had been reported to him that on April 9, the morning after the
decertification petition was filed, Superintendent McDougall, in an address to the
employees, said that "if the girls don't go along with the Company on this [the
decertification petition] he would run it like an army camp," whereupon Polydoris
exclaimed to McDougall, "Good God . .. , if you ever did that, we're in trouble,"
and McDougall denied having said it.12
u Linda Smith testified to the incident without denial.
"This too is dealt with in the separate portion concerned with the General Counsel's
added specification of Respondent's support and sponsorship of the petition.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Polydoris then suggested they continue their session at lunch, and the conferees
proceeded in Sheets' car to a restaurant. There they discussed a seniority grievance,
which Polydoris said he would look into, and also the agency-shop clause. Concern-
ing this last, Polydoris assured the field representatives as follows: .
Don't worry about it, don't worry about that; we'll take care of that .. .
you'll receive it at the beginning of the week.
He repeated that assurance when the field representatives dropped him and
McDougall off at the plant.13
4. The total repudiation of the bargaining obligation
The parties never met again. On April 29, Field Representative Sheets wrote
Polydoris as follows:
DEAR Sm: It seems we had an agreement that must have slipped your mind.
On March 28, 1963, we held a secret ballot vote for an Agency Shop. This
Clause to be a supplement to the present Contract. You stalled the signing of
this agreement until April 2, 1963 and then did not show up for the meeting.
On April 11, 1963 Mr. Ziegler and I met with you on this and other prob-
lems we had and was again stalled by you, with a promise that you would mail
signed copies of the Agency Shop clause to me the following week.
WHAT HAPPENED?
I would like to remind you of something you wrote to me in your letter of
Feb. 14, 1963 when you were wanting to get the Rates changed over. I quote
"The majority of the girls voted for this proposal. I feel that it is the duty of
the Union to accept what the majority wants." As you well know I had not
seen the proposal on Rates when you took that vote.
On the Agency Shop we both had signed copies, it was posted on the bulletin
board so they would know what they were voting on. The Union won that
vote 36 to 19 and this includes all the new employees.
At this point the Union can only assume that you were only interested in
your own personal gains, and was not sincere when you made the above
statement.
In your letter to Mr. Hutson of March 22, 1963 you stated that you would
be happy to meet with the Union to modify the present contract, therefore we
would like to meet with you in the week of May 5th, 1963 preferably Tuesday
May 7th or Thursday May 9th, 1963.
Trusting this will coincide with your schedule. I will be waiting to hear
from you on which of the above dates is most agreeable with you.
Sincerely,
(S) Ted Sheets,
TED SHEETS,
Field Rep. I.U.E. A.F.L.-C.I.O.
Respondent did not reply. On May 11, Sheets wrote Polydoris informing him of
the new slate of officers of the local. On May 24, Polydoris wrote Sheets as follows:
This is to advise you that Wabana, Inc. has a good faith doubt as to the
majority status of International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO and Local Union 952.
In addition in view of the pending decertification case and charges, we can-
not enter into collective bargaining with your union at this time.
We, of course, will continue to process grievances and carry out all our
obligations under the existing contract until June 15, 1963.
On June 27, after the General Counsel issued the complaint based on the charges
(supra, footnote 1) and after the Acting Regional Director, on June 18, dismissed
the decertification petition, the IUE, this time, through its vice president, again wrote
Respondent asking for a meeting to negotiate a contract. Respondent did not reply.
Is The above was testified to by Field Representative Ziegler, without denial by Polydoris
or McDougall. Polydoris, in fact, when finally pinned down on whether he would dispute
Sheets' testimony that after the result of the ballot was announced he told Sheets to sub-
mit the clause to them and that he would sign it, answered, "I will have to go along with
that right now." McDougall testified that after the vote he was "under the belief that
an agency shop supplement would be entered into" and that Polydoris had not indicated
otherwise to him even in private.
WABANA, INC. 1.171
C. Conclusions concerning refusal' to bargain.
1. Introductory
As earlier stated (supra, footnote 3), the General Counsel challenges the decertifi-
cation petition as an adequate ground for the -asserted "good-faith doubt" of the
Union's majority on which Respondent premised the ultimate repudiation of its bar-
gaining obligation, first, because of its insufficiency as such a ground even apart from
the claimed unfair labor practices, and secondly, because Respondent's claimed
illegal action , which is the context in which the doubt was raised, deprives it of the
standing to claim "good faith" for it. Also, based on facts beyond those already
related, he claims a specific complicity by Respondent in that petition, which he ad-
vances as an additional and independent unfair labor practice. But since the basic
issue of the alleged violation of Section 8(a) (5) and (1) is capable of determination
apart from this last, it would seem appropriate to defer it, as stated previously, for
separate consideration in a later section, and proceed to the main issue. We shall
do so from two vantage posts: the petition viewed apart from Respondent's claimed
illegal conduct and then against that background.
2. The adequacy of the ground for the repudiation considered apart from the
conduct in derogation of the Union's bargaining status, which preceded it
On the question of whether the decertification petition, even apart from the context
of Respondent's union undermining conduct, justified the repudiation of the bargain-
ing obligation under the subsisting certification, we start with the familiar proposition
that after the guaranteed "certification year'.' (in which the certification is invulner-
able to a claim of loss of majority, Ray Brooks v. N.L.R.B., 348 U.S. 96), there is
still a presumption, under the certification, that the union has retained its majority,
but it is now "rebuttable," so that a "good-faith doubt" of the union's majority, if
founded "upon reasonable ground" therefor, will excuse an employer's refusal to
bargain with the certified union. Celanese Corporation of America, 95 NLRB
664,672-673.
Where the doubt is based on a decertification petition, the naked fact that such
a petition has been filed would not appear to be enough, since, nothing else appear-
ing, it indicates merely that the petition is supported by the requisite 30 percent
"showing of interest." Hence, as I read the cases, whenever a doubt founded upon
such a petition has been held to excuse an employer's refusal to bargain with the
certified union, the decision expressly noted, as the implied indispensable additional
fact, that it ^ was "supported by a majority of the employees." 14 Here, the unfair
labor practice context aside, the petition failed to overcome the presumption of
continued majority on two scores: First,. there was not an affirmative showing that
the petition was supported by a majority of the employees in the unit, and secondly,
there was an affirmative showing of recently expressed employee preference which
not only reinforced the original presumption of a continued majority but re-
demonstrated it as effectively as the results of a Board election. Only 10 days
earlier, the employees were polled by their employer not merely on whether they
still wanted the Union to represent them, but on whether they wanted strongly
enough to pay for the representation by making payment of dues a condition of
their job. The decisive majority is the more impressive in the face of the enlarge-
ment of the voting composition, upon Polydoris' insistence thereon at the last minute
.to include all employees who were newly hired since January 28, the date Respond-
ent conducted the poll on its wage proposal, and his strong appeal to the employees
immediately before the agency shop poll on March 28 to reject representation by the
.Union altogether in favor of dealing individually with him-which, it is fairly to be
inferred from the totality of his conduct, is what Respondent would have claimed
for the result had the vote gone the other way. That decisive endorsement of the
Union had an impact on Polydoris even after the decertification petition was filed,
for on April 11, he still recognized the Union as the bargaining representative when
he dealt with the two representatives of the International concerning grievances and
twice renewed his promise to sign and mail in the agency -shop clause , raising no
question of the Union's majority. Yet, a month later, Respondent repudiated the
.bargaining obligation altogether, with no showing of any intervening event vesting
14 Lloyd A. Fry Roofing Company, 123 NLRB 647, 659; McCulloch Corporation, 132
NLRB 201 , 211 (893 decertification cards , submitted to employer out of a total of 1646 In
the unit) ; N.L.R.B. v. Minute Maid Corporation, 283 F. 2d 705 (C.A. 5) (141 out of 208)
The Hinde A Dauch Paper Company, 104 NLRB 847, 855, 859 (56 out of 81).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the decertification petition with any greater doubt-engendering quality than it had
on April 11. 15 So , -added to the insufficiency of the petition as a "reasonable ground"
for the doubt, if entertained, the combination of the recent reaffirmance of the
Union's continuing majority and Respondent's initially negotiating with the Union
on the strength thereof even after the petition was filed undermines Respondent's
assertion that it relied thereon in "good faith." 16 This is apart from the question
of the context of other conduct in which the doubt was raised, to which we come.
3. The asserted doubt of majority viewed in the context of Respondent 's union-
undermining conduct
An employer cannot in any event be heard to claim "good faith" for a doubt,
if "raise[d] . in a context of illegal antiunion activities or other conduct aimed
at causing disaffection from the Union Celanese Corporation of America,
95 NLRB 664, 673. These facts, each in itself sufficient to invalidate the claim of
"good-faith doubt," here existed in combination.
Concerning the first: Respondent successively violated its bargaining obligation
under Section 8(a)(5) and (1) of the Act, when it bypassed the Union and dealt
with and polled the employees directly concerning the wage provision before first
proffering it to the Union (Medo Photo Supply Corporation v. N.L.R.B., 321 U.S.
678), when it again undermined the Union's exclusive representation status by
changing the insurance coverage and carrier without consulting with or notifying it
(N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S.
736; May Department Stores d/b/a Famous-Barr Company, 326 U.S. 376, 384), and
when it dishonored its commitment to sign the agency-shop clause-made twice
before the vote was taken and three times after the condition therefor had been met
by the decisive vote at the poll. H. J. Heinz Company v. N.L.R.B., 311 U.S. 514.
In regard to all of these actions, we are met by Respondent's assertion of its
"good faith." Deferring for the moment the nature and quality of that faith,
Respondent's assumed premise is that acts in derogation of the bargaining obligation
become innocent in law if done with innocence of mind. ' The assumption is made
without supporting authority and with no sign of recognition of the existence of the
previously cited line of Supreme Court cases standing for a contrary doctrine. Most
notable is the failure to treat with or even mention the Katz case, which embodies
the Supreme Court's most recent rejection of Respondent's unsupported premise.
The Court there stated : "The duty to `bargain collectively' ... may be violated with-
out a general failure of subjective food faith . .
The context of this pronouncement was a unilateral change in a working condition
which the employer sought to justify on the basis of an asserted overall "good faith."
Concerning it, the Court said:
Unilateral action by an employer without prior discussion with the union does
amount to a refusal to negotiate about the affected condition of the employ-
ment under negotiation and must of necessity obstruct bargaining contrary to
the Congressional policy.
But the Court made it clear that the pronouncement applied generally to acts
in derogation of a representative's exclusive bargaining status, whether it be in the
form of a unilateral change in a working condition, as in Katz (and the insurance
coverage here); 17 or by direct negotiation with the employees instead of the Union
15 The filing of the charges could hardly have done so, since a duty to bargain, otherwise
existing, is not diminished by a pending charge even if unmeritorious (Mason d Hughes,
Inc., 86 NLRB 848; Heider Manufacturing Company, 91 NLRB 1185, 1190: Kit Manu-
facturing Company, Inc., 142 NLRB 957), much less one which by June 27, when the
Union renewed the bargaining request, was determined to warrant issuing the complaint
and dismissing the very decertification petition on which the asserted doubt was predicated.
19 Cf. The Richard W. Kaase Company, 141 NLRB 245; The Perry Rubber Company,
133 NLRB 225, 229.
17 Respondent justified the unilateral change on the ground that the Union had not on its
own initiated a proposed supplemental agreement regarding insurance for inclusion under
the applicable article of the contract, and also because, as it claims, the new coverage was
an improvement on the old. Whether embodied in the contract or not, the insurance
coverage, including under the facts of this case, also the carrier, is a "condition of em-
ployment," concerning which there is a duty to bargain with the employees' bargaining
representative (W. W. Cross and Company, Inc. v. N.L.R.B., 174 F. 2d 875'(C.A. 1) ; cf.
Inland Steel Company V. N.L.R.R., 170 F. 2d 247 (C.A. 7), cert. denied'336 U.S.. 960), hav-
WABANA, INC. 1173
as;in ,Medo.Photo Supply Corporation (and-the wage provision here).18 The same
applies to the refusal to sign an agreement embodying an agreed-upon clause.
Deferring the matter of how "good faith" can be conceivably claimed for the
successive breaches of the prior commitments to sign the agency-shop provision,19
such a refusal is an inherent violation of the bargaining obligation, whatever the
faith behind the breach. And it violated Section 8(a)(1) when Polydoris after
his contemptuous characterization of Respondent's obligation to take up the change
in insurance with the Union said Respondent would close the plant before complying.
. Coming to the quality of Respondent's faith, it is difficult to see how Respondent
can escape the cumulative force of the unfair labor practices as manifesting an
intention to undermine the Union's majority by the two-ply device of systematically
chipping away at the Union's prestige as the employees' bargaining representative
and a , series. of direct overtures to the employees . to abandon collective bargaining
in favor of individual dealing with the Respondent, here launched by the appeal to
that effect on the very face of the wage proposal submitted to the employees at the
poll, and repeated after the announcement of the insurance change and in Polydoris'
address at the agency-shop poll. Taken also with the successive reversals of prior
assurances at each significant step in the dealings, including, in the case of the
agency shop, the dramatic demonstration to the employees of the utter futility of
any promises made to the Union by Respondent, the fair conclusion is that the
guiding motivation of the man who took over the presidency of Respondent during
the life of the contract was to remove that inherited incumbent from Respondent's
reluctant back by alienating the employees from their certified representative if
possible, or that failing, seizing.upon some color of ground to repudiate in its entirety
the bargaining. obligation thereunder.
Engineering it was an executive not in the image of the table-pounding union baiter.
He vaunts a childhood background in unionism and, with garrulous joviality, protests
his sympathy for union aspirations in general and seniority in particular. This
beguiling quality may perhaps account for the singularly unassertive demeanor of the
International's representative, as instance upon instance mounted of the new presi-
dent's breaches of faith: his submitting and polling the employees on the wage pro-
posal in disregard of his express prior promise (apart also from the legal duty) to
submit it to the Union; his reversal of the prior understanding that the wage and
agency-shop proposals would be concurrently negotiated and embodied in one supple-
mental agreement (using for it the dual gambit of a long postponement of the poll
on the agency shop and the claim of a binding effect on the Union of the vote of a
"majority of the girls" on his own poll on the wage clause); his last-minute turning
back on the commitment that the delay in the agency-shop poll would not change
the voting composition from the one that was polled on the earlier wage proposal;
his similar last-minute confrontation of the Union with a ballot couched in language
capable of later use to frustrate the subsisting understanding that the result would
be binding either way (which Sheets caught and managed to have excised); and his
running out on his appointment, made immediately after the employees' approval of
the agency shop at the poll, to be at Frankfort April 2 to sign the clause.
ing as a component element the duty to consult with that representative concerning a
proposed change ( ibid., and see also Kenneth B. McLean d/b/a Hen's Building Supplies,
142 NLRB 235) : and the assertion that the change was for the better begs the purpose
underlying that duty, which Is to have the change preceded by an effort at mutual assent
derived from persuading the employees ' representative of its merits.
's Respondent claims that this was "cured" by its later negotiating the wage proposal
with the Union to ultimate execution. Apart from Respondent's previously mentioned
use of the results of the poll to reverse its prior commitment for concurrent negotiation
of this with the agency-shop provision, the contention overlooks the fact that the right
"to bargain collectively through [chosen] representatives," guaranteed In Section 7, en-
tails not only the right to make the final decision through the bargaining representative
but to advise and consult with the representative in formulating the initial position as
well. A precommitment obtained from the group individually before submission to the
Union "of necessity" ( N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products
Co., supra) embarrasses them in the advancement of a later position collectively, a fact
here confirmed by Respondent's previously mentioned later use of that result and, indeed
specifically Intended by Polydoris, as shown in his testimony separately dealt with later.
'@ Usadel Trophy Manufacturers, Inc., 131 NLRB 1347; Stackhouse Oldsmobile, Inc.,
140 NLRB 1239; Lozano Enterprises, 143 NLRB 1347; Artistic Embroidery, Inc., 142
NLRB 974; Warrensburg Board & Paper Corporation , 143 NLRB 398.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such faith as one can discern in Respondent would seem . to have been the un-
bounded one of its president in his duplicity. We were favored- with a fair share of
it at the hearing, and this brings us to our next subject.
4. The claim of good faith viewed additionally in the context of the quality
of testimony of Respondent's president at the hearing
On the witness stand, the youngish-looking top executive, with a never failing
geniality, graced us with a dense fog of evasive double-talk, most of.it unresponsive.
Respondent, in its brief, writes this off as showing him as "admittedly voluble,"
but "obviously attempting to testify with exactness to events that frequently merged
and consumed a. period [of coping with creditors under the prior management]."
The "attempt" had the oddest manifestations: his recitals consisted of generalized-
obscurities which, when brought reasonably close to the factual, carried their "own
death wound" 20 of inherent improbability, and were additionally. discredited by estab-
lished facts. When confronted with them, he avoided them in one of two fashions:
either by a blackout of memory, or by improvising new elements in qualification of
his exposed assertion, and when that too was exposed, improvising still another
qualification on top of the one before. As it is, he wound up not disputing the
accuracy of Representative Sheets' versions of the various sessions with him (supra,
footnote 4), and Respondent, in its brief, vouches for Sheets' integrity. The witness'
contribution was the negative one of reinforcing the credibility of the implicating testi-
mony and giving conclusive confirmation of the inferences of malintent which flowed'
from the conduct. Space limitations prevent doing full justice to the performance;
but a fair sampling is provided us by the salient aspects of the explanations of his
conduct on the crucial items of the polling of the employees on the wage proposal
before submission to the Union and his dishonoring of the results of the poll on the-
agency-shop clause.
Concerning the first, we had it from the witness that he had in fact taken up the
wage proposal "with the Union" before polling the employees. This gave the im-
pression that he discussed it with the International's representative, Sheets, with,
whom he had been in negotiation on that subject and also on the agency-shop clause
at the meetings in the fall of 1962. When asked how specifically he took it up "with,
the Union," it turned out he meant his meeting with the assembled employees in,
which he asked the three girls, who were then the officers of the local, to verify the
count. He testified that these three employees were "what I felt was the Union as
it existed at Frankfort." This had a hollow ring from one who, as previously stated,
made it a point to underscore his background in unionism from childhood, and who-
in any event had been in negotiation with the International's representative on that
subject 21 So he was asked to reconcile his assertion with this last fact. On this he.
drew a blank: he vaguely remembered having met with Sheets in 1962, but as to,
when it was or what was discussed, apart from some grievances, he simply could not
remember. But if in the mere settlement of a grievance, the International played a
superseding part distinct from the local (as the contract confirms, for, as earlier
noted, (supra, footnote 2), article VI requires the presence of a "Representative of
the International" at the third step), would it not be with the International that he
was to take up the even more basic subject, of a proposed revision of•the wage clause--
a matter additionally brought home to him by the fact that it was with the Interna-
tional's representative that he had previously been meeting on the subject? Even'
the fact that at the November 9 meeting the International representative had banded
him a copy of the Meade decision to give his lawyer did not lessen the witness'
aphasia. At long last, well on during his cross-examination, without acknowledging
any revival of his expired recollection, he owned up to the following:
TRIAL EXAMINER: ... Did you hear Mr. Sheets testify that in November he
and the grievance committee met with you and Mr. McDougall and that there
was a discussion of two things: the wage change and the agency shop proposal.
Do you remember that meeting?
The WITNESS: Specifically, I don't remember the meeting. If he has a
recollection, of the meeting, the meeting was there and this was. one of the
standard topics we discussed when we did get together. So the answer is yes.
[Emphasis supplied.]
'°N.L.R . B. v. Robbins Tire •& Rubber Co:, 161- F. 2d'798, 801 (C.A. 5).
2 'All of Respondent 's' letters to the Union during Polydoris ' incumbency are shown to
have been addressed to the International . This goes back to June 27, 1962, before the
negotiating sessions with Sheets here in issue.
WABANA, INC. 1175
While thus insisting that in polling the girls on the wage proposal he had not
violated his duty or comitment to submit it first to the Union, he justified his.actions
on the basis of the reverse premise: that he wanted the employees committed to a
position as individuals without the prior opportunity of consultation with their bar-
gaining representative. This, of course, is manifest in the body of the proposal and
his assertion to the protesting Sheets of a right to poll those employees on their in-
dividual positions before submitting his proposal to the Union. The same also
appeared in what he stated at the hearing to have been his purpose. He testified:
Every girl within her private ballot would be able to express herself how she
felt about this. So we really got an opinion of the girls out on the plant, and
not some other force. [Emphasis supplied.]
While it hardly called for a diagram to divine the meaning of this last, it seemed
appropriate for further insight into the witness to have him tell us his intended
meaning. Apparently "some other force" meant anyone but the Union. At first:
It would be let us.say one of our-McDougall or Nicholson or a foreman.
We had a problem in manufacturing it was evident on the ballot sheet that
showed-
TRIAL EXAMINER: Do you recall-do you consider Mr. McDougall as an
outside force, one of your own people, one of your own supervisors?
The WITNESS: Oh, maybe I'll expand on this a little bit.
TRIAL EXAMINER: Please.
He expanded, but hardly by "a little bit" and not at all "on this," and in the ever-
-widening spiral of his unresponsive discourse, he careened into this:
. and with an issue that was presented to them, I propose it was presented
to them free and clear. In other words, they understood what we were talking
about, and why we were doing it. We had to sell this to the girls. [Emphasis
supplied.]
"There was still no clarification of what he undertook to "expand" upon, so it was
necessary to bring him back to the original question, whether "the only outside force
[he] thought of was McDougall and the other officials of the Company." The
:answer this time:
The WITNESS: By outside forces I mean my employees right across the
board. I'm not thinking about the Union because the Union right now is-
[Emphasis supplied.]
The matter was finally left thus:
TRIAL EXAMINER: I got the impression you're referring to someone outside
the girls. Is that what you meant?
The WITNESS: No, no, no, no sir.
On the agency-shop clause, the question was how he could have dishonored his
-commitment after the decisive vote of the employees on that issue. He answered
that he merely wanted the "sentiment" of the employees as "an influencing factor,"
but that he had never intended to be bound by it because "it was a serious step,"
which should not be taken "without any careful analytical thinking" and prior
,consultation with his attorney about its legality under Indiana law. One would
reasonably have thought that this was all settled in the interval between his receiving
a copy of the Meade decision to show his attorney and his signing the paper on
February 11, agreeing on the language of the clause to be submitted to the girls
at the poll. Especially so, since his answer -to what he did with the decision was
that "I read it over and I submitted it to my attorney, George Mergess." Reminded
that this was in November, he now recalled that what he gave his attorney was not
the "actual booklet." He testified:
TRIAL EXAMINER: That was in November?
The WITNESS: Well, let me backtrack. What I submitted to George Mergess
was not the actual booklet but a rdsumd of the booklet that Mr. Sheets had
typed up for me copies. [Emphasis supplied.]
But whatever it was, it would reasonably follow that he had satisfied himself
about the legality of the agency shop and the acceptability also of the language by
February 11, when he signed the paper containing the agreed language of the
clause to be voted on, and certainly by March 28, when the vote was taken. Now
it appeared that his attorney did not have the competence to advise him. He
testified:
1176 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
TRIAL EXAMINER: At some stage before you took poll you satisfied yourself,
did you, that an agency shop, that is to say a contract which required payment
equivalent to dues but did not require membership, was legal under Indiana
law?
The WITNESS: Let me say that my attorney is not a labor attorney and was
not familiar enough with this to give me any real opinion. He just tentatively
advised me that I should get together with an Indiana attorney who is involved
with the matters, which I subsequently did. [Emphasis supplied.]
One would then have expected that he inform us with reasonable clarity when
he consulted with "an Indiana attorney." He gave us this:
TRIAL EXAMINER: When was that?
The WITNESS:, Oh, it was somewhere-that's a good question. I don't-it
was somewhere during the-oh- I would say January, February, somewhere
in there, maybe December. [Emphasis supplied.]
The "maybe December" would indicate that he had been in consultation with
the "Indianapolis attorney" not later than that and in every reasonable likelihood,
earlier, since he had gotten the decision early in November. But on either basis,
the original question, put to him before this diversion, still applied. So he was
asked it again, and here he interjected a new element as follows:
TRIAL EXAMINER: You took the poll, I assume, after you were satisfied with
whatever advice you got, and from whatever the source was that you could
legally grant the agency shop. I take it you were satisfied that that was so
before you took the poll?
The. WITNESS: To the best of my recollection I don't think I had resolved the
agency shop issue in my mind because I had deliberately-it was not deliberate-
I had intended this to be a separate issue in itself and not to be tied in with
the wage poll, as Mr. Sheets-in other words at no time did I consider this being
tied in with the wage, the agency shop and the wage being tied in together .. .
so even to this very second I don't think-I don't know what to do. [Em-
phasis supplied]
But this last could hardly have been a consideration, since on February 11, when
he signed the paper embodying the clause to be voted on, he announced the poll
would be delayed until March 28 and insisted the wage proposal be separately
negotiated to consummation-which was done on February 22, when the Union
executed with him the supplemental agreement containing the wage provision. Also,
his then telling the Union that he deemed it bound by the vote of a "majority of
the girls" on the wage clause reasonably'implied his adoption of the same standard,
cutting both ways, for the agency-shop clause. Now another-new element was inter-
jected. The witness testified:
TRIAL EXAMINER: . You conducted a poll, you said, in order to get the
sentiment of the group?
The WITNESS: All right. The-
TRIAL EXAMINER: What was the sentiment for?
The WITNESS: Now that was-the other part of my thinking in arriving at
this decision was if every single girl in.this plant wanted an agency shop. Then
there was nothing I could do but to grant it, you know, in my mind if every
single girl wanted it. [Emphasis supplied.]
TRIAL EXAMINER: Was that the condition, it had to be unanimous or you
wouldn't accept it? Are you telling us -that? [Emphasis supplied.]
The WITNESS: Yes, I am.
But if his asserted reservation about the binding effect of the poll was due to
lingering doubt over the legality of the clause under Indiana law, a unanimous vote
would be as irrelevant as a majority vote. At any rate, whether this now asserted
qualification made sense or not, did he mention it to Sheets any time before the poll
was taken? He admitted he had not done so. As to whether he did so afterwards, he
testified:
TRIAL EXAMINER: Was Mr. Sheets in touch with you after the vote of 36 to
19 was taken?
The WITNESS: Yes, I believe he was.
# • • i f * F
WABANA, INC. 1177
TRIAL EXAMINER: Since you said you expected a unanimous decision, I sup-
pose you told Mr. Sheets that you were not going to grant him an agency shop
because the vote was not unanimous. Is that what you told?
The WITNESS: I didn't tell him that. - -
The question then was what he did tell Sheets. He met that question with a.
prolonged silence-and finally:
TRIAL EXAMINER: Now, you' re pausing a long time , don't you remember?
The WITNESS: I don't remember whether it was a telephone call or personal
meeting, if someone had some notes or recollection or some sort of a date sched-
ule, it might trigger off my -thinking. But I know I was on the phone with him
and I know we met in person and I don't-he was at the plant, and he left, and
I don't-he was at the plant, and he left, and I don't remember anything else.
TRIAL EXAMINER: You heard Mr. Sheets testify yesterday ... did he refresh
your recollection a little bit?
The WITNESS: I must have been doing something else when that part came up
because I don' remember it. If you have your notes-
TRIAL EXAMINER: You don't remember?
The WITNESS: If you have your notes, it might-I don't-
TRIAL EXAMINER: I see, without my notes you don't remember what he
testified to about that?
The WITNESS: No, no, I don't recall, that's the honest to God truth.
TRIAL EXAMINER: Well, without looking at my notes, I recall that after that
vote according to the testimony of Mr. Sheets, you asked him to submit the
agency proposal and sign it . Now, did anything like that happen?
The WITNESS: It may have, I don't remember. This is again-
TRIAL EXAMINER: Why do you say "may have?"
The WITNESS: Because I can't recall-I can't recall any-I can't recall any
specific instances from the time-all I recollect from the last meeting, is we
were in the plant, the poll was taken, and I don't recall what happened after.
that.
TRIAL EXAMINER: The reason you say "may have" is this-
The WITNESS: Because I-
TRIAL EXAMINER: -if Mr. Sheets testified that happened, you won't dispute
it?
The WITNESS: I have .to pretty well go along with that right now.
There would be little point in laboring the witness' performance further except
to say the rest was more of the same. What strikes one even more than the demon-
strated uncreditworthiness of the asserted mental reservations is the proposition ad-
vanced by Respondent in its brief that:
The record establishes that at no time was there a meeting of the minds
of the parties in regard to the wording or even the substance of an agency
shop provision. [Emphasis supplied.]
Building on the above assumption that a binding agreement depends on the actual
concurrence of the mental states of the parties rather than on conduct from which
an agreement is to be inferred, Respondent's brief quotes the testimony through
which counsel led him on redirect, to the effect that "at no time" did he "tell Sheets
[he] would sign the agency provision as submitted to [him]"; that he told Sheets he
was "going to consult with others relative to the content as submitted" and that
he did so; and that before the complaint in this case was issued he "had reached one
conclusion, that as submitted it was not acceptable to me." It then advances the
above as "accurately describ[ing] -the Respondent's thinking" and hence as disposi-
tive of the issue.
It is beside the point that even as to these self-serving representations concerning the
outcome of his consultation with said "others," the witness was soon to be further.
discredited, as later shown. Equally astonishing is that on the assumption of their
truth, there should be advanced in this day and age, the proposition that the test of the
existence of an agreement. is the identity of the mental states of the parties rather
than the objective manifestations of agreement inhering in conduct. Williston
states: 22
22 Williston , Contracts ( Jaeger, 3d ed . 1957) § 22.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the formation of contracts it was long ago settled that secret intent was
immaterial, only overt acts being considered in the determination of such
mutual assent as that branch of the law requires.2 [Emphasis supplied.]
2 Citing many cases, including O'Donnell v. Clinton, 145 Mass. 461, 14 N.E. 747,
and quoting the Court's pronouncement that "assent in the sense of the law is a
matter of overt acts not of inward unanimity of motives, design, or the Interpretation
of words." °
Just as agreement here does not hinge on whether Polydoris'had mental reserva-
tions in opposition to the fair sense of his objective conduct, so too does the existence
of an agreement not hinge on whether, as counsel apparently deems conclusive,
Polydoris in so many words "did [or. did not] tell Sheets he would sign the agency
provision as submitted" (even though I am satisfied and find that he did), but
on whether his conduct reasonably conveyed to Sheets that he would. As Wil-
liston puts it (op cit. § 22A) (with the documenting footnotes omitted) :
Though assent must be manifested in order to be legally effective, it need
not be expressed in words. In the early law of assumpsit stress was laid on
the necessity of a promise in terms. The modern law rightly construes both
acts and words as having the meaning which a reasonable person present would
put upon them in view of the surrounding circumstances. Even where words
are used, "a contract includes not only what the parties said but also what is
necessarily implied from what they said," and it may be said broadly that
any conduct of one party from which the other may reasonably draw the infer-
ence of a promise, is effective in law as such. [Emphasis supplied.]
On the basis of any sober interpretation of the plain meaning of conduct, what
other inference could Sheets reasonably have drawn than that Polydoris would sign
the submitted agency-shop clause? The steps in the sequence, each an implied as-
surance, have a cumulative effect making the inference of a promise inescapable,
Polydoris signing the paper on February 11, which embodied the language of the
clause to be voted on; his letter of February 14, reasonably implying, from his
claim that the vote of the "majority of the girls" on the wage proposal was binding
on the Union, that such also was the standard he applied, evenhandedly, concerning
a poll on the agency shop; his agreement to the deletion of the paragraph on the
ballot containing language that could be interpreted as reserving the final decision on
the matter in management; his making the appointment, after the result was an-
nounced, to be at the Frankfort plant on April 2, to sign the clause; his statement
on April 8 on the telephone that he would have the clause "fixed up" by his lawyer
and be in Frankfort that week, with the implication that he would do them what
he had been supposed to do on April .2; and his twice renewing to Representatives
Sheets and Ziegler on April 11 (after the decertification petition was filed) the
promise to sign and mail in the agency clause-with no statement on any of these
occasions of any reservations on the score of the legality of the agency shop, the
wording of -the clause, or the binding effect of the vote. Another who drew the
reasonable inference that Polydoris would sign the agency-shop clause as submitted
was Superintendent McDougall, who was present at every session with Sheets con-
cerned with it and also the last one on April 11. He testified he too thought
Polydoris would sign the clause as approved by the majority of the employees at
the poll, and that at no time had Polydoris indicated otherwise even to him.24
23 To same effect, see Restatement of the Law of Contracts (1932 ed.) ¢ 21 ; Corbin,
Contracts (1950 ed.) 1 9.
24 At the terminal stage of his session on the stand, Polydoris' "every single girl" re-
quirement underwent dilution. This was when Government counsel asked him whether he
had said anything about it to the employees before the vote was taken on March 28, a
sort of a cross-examiner's rhetorical question, since lie had already given his own version
of his address (supra, footnote 10) which, like the ballot Itself, made no reference to such
a requirement. Not one to overlook a bet, Polydoris now claimed be did, but in doing so,
sort of gave up the "every single girl" gambit--thus:
And at the meeting I did make the statement in essence: that I would not allow-I
think a sizeable segment-or a segment of this group-if a segment of this group did
not want an agency shop, if there was a sizeable group-I think I mentioned two or
three was the figure I gave-that I felt.at that time it my duty to give considerable
thought before we arbitrarily started deducting union dues from a sizeable segment
of the working force without their consent. [Emphasis supplied.]
WABANA, INC. 1179
An interesting feature of this last contention is that apart from the, legal in-
sufficiency, his assertion that he now had mental reservations about the wording of
the clause-inherently incredible in the circumstances-is in addition exposed by
another aspect of his testimony. His testimony, on redirect, that "as submitted it was
not acceptable to me" opened up the matter of specifics: what in consequence of his
consulation with said "others," had he found "not acceptable" in the clause as
submitted? Since I was then unaware of the difference between the wording of
the clause sent him on February 9 and the one he signed February 11 (supra,
footnote 8), on the assumption that the two were entirely identical, I showed him
the one that happened to be handy at the moment-the proposal as sent him on
February 9. The one portion he claimed to be in not quite satisfactory shape was
the 10-day dues delinquency provision, which appears in the February 9 document
but not in the one signed by him on February 11.
The one respect in which the minds of the parties can be said not to have met,
is in their intentions to keep their promises-Sheets for the Union intending to
keep his to drop the agency-shop demand if the majority of the girls voted it down
and believing correspondingly that Polydoris intended to keep his to adopt it if the
majority approved, with Polydoris intending to hold Sheets to his promise while
secretly bent on finding a way out of his promise if the vote went the other way.
It was the kind of nonmeeting of the minds that exists between the deceiver and his
victim, and hardly one which the guilty bargainer can equitably turn to his advan-
tage at the expense of the innocent party. The totality of Polydoris' conduct
indicates he was playing for even higher stakes than merely the defeat of the agency-
shop proposal. A majority vote against it would have given him a golden op-
portunity to claim that it was a vote by the girls against being further represented
by the Union, for he had pitched his address to them against the agency shop on a
plea-in line with his overtures from the time he bypassed the Union on the submis-
sion of the wage proposal-to abandon union representation in favor of dealing with
him individually.25
Reinforcing the inference of Polydoris' "heads I win, tails you lose" objective,
which flowed from his conduct, was the duplicitous jargon in which he had the
ballot couched. Respondent still makes a claim for the deleted "and approved by
management" clause as if it never went out. Its brief says:
The statement at the bottom of the ballot, which was inserted by Respondent,
clearly shows that the matter was to be decided by Respondent. The second
sentence begins with the words "If this proposal is agreed to by the girls and
approved by management . . .
It may be questioned whether it would "clearly show" it even if Sheets had not
caught it, for it has an ambivalence lending itself also to construction, in the light
of the understanding reached before the poll, as merely setting the time when the
obligation to pay would begin-namely, when management would approve it by
formal execution after a favorable vote. One would reasonably have thought, then,
that Polydoris' agreement to strike the paragraph "clearly shows" the reverse of what
Respondent contends. Respondent meets it this way:
Although this statement scratched out at the request of the Union rep-
resentatives . . . the objection referred to the argumentative nature of the
wording and not in any sense as indicative that the Union believed the balloting
could per se determine the agency shop question. [Emphasis supplied.]
This would be an astounding interpretation for the excision of the paragraph
even if there were support for the assertion that Sheets had based his objection to
it on -the "argumentative . wording." But Respondent does not support that
assertion with any citation in the record, and the sheer boldness of the utterance has
caused me again to turn to the record. I have found nothing that disputes the un-
denied testimony of Linda Smith (supra, footnote 11) that the objection of Sheets,
to which Polydoris responded with the concession that the "girls can strike it off,"
was that under the language used, "the final decision would be left up to him, Mr.
Polydoris to make, no matter which way the vote went" and that "if this was left on
the ballot there wouldn't be any use to take the vote." That the paragraph had,
as an added vulnerable feature, an argument by management on the face of the
u Respondent advances in proof of Respondent's "good faith" the fact that Polydoris
wrote Sheets inviting him to participate with him in addressing the girls on March 28.
This was implicit in the arrangement concerning it from the start, and had he barred
Sheets; it would have given him less face to claim a loss of a majority in the event or a
rejection of the agency shop at the poll.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballot for a negative vote, there can be no doubt. But that Respondent should itself
introduce this added self-impugning item as an offensive weapon in its favor is as
incredible as the claim it makes for the deleted language.
The above does not exhaust Respondent's use of the language of the ballot as an
arsenal of combat. Pointing to the opening paragraph, which begins with: "In
order to obtain an expression of the girls . . . with respect to an agency shop
."the brief argues:
The word "an" is significant and makes it obvious that the employees were not
voting on a specific agency provision . Had the ballot been intended for
anything more than an expression of opinion it would have so described.
The "obvious[ ness]" would seem to have escaped the harried Sheets who had had
his hands full with the potential mischief in the "and approved by management"
paragraph. I must confess the "an" in the opening paragraph rather eluded me
until I read the claim Respondent makes for it. It must be said that it is a cute
one, but the draftsmen might more instructively have turned to the previously cited
texts and to Mr. Justice Cardozo's pronouncement in the Lady Duff Gordon case,26
which over almost half a century has been the classic answer to attempted exploita-
tions of weasel phraseology to defeat the essential nature of a compact, thus:
The law has outgrown its primitive stage of formalism when the precise word
was the sovereign talisman, and every slip was fatal. It takes a broader view
today. A promise may be lacking and yet the whole writing may be "instinct
with an obligation" imperfectly expressed [citing cases] If that is so, there
is a contract.
D. The sponsorship and support of the decertification petition
This phase of the case, as stated previously, was left for residual treatment, because
the validity of Respondent's action in repudiating its bargaining obligation does not
hinge on whether it had direct complicity in the filing of the decertification petition.
The General Counsel claims, however, that apart from the presumptions that arise
from the violations previously found, other evidence implicates Respondent in that
occurrence warranting a finding that it engaged in the additional unfair labor practice
of specifically sponsoring and supporting that step. Whether that is so is ,the matter
here to be considered.
The General Counsel, in undertaking his burden of proof, had his work cut out
for him, since what occurred at the meeting at the airport on April 4 was known
only to the three defecting officers and Polydoris. Government counsel introduced
this phase of the case by putting these three girls on the stand.29 They testified, in
substance, that on Wednesday, April 3, they visited the Board's Regional Office in
Indianapolis, where they asked about decertification procedures and were given
forms, but had not yet decided to file a petition; that late the same day, Heaton, with
Mohr listening, called Polydoris on long distance, saying they would like to see
him about the "tension" and "squabbling" among the girls at the plant, and, as Heaton
testified, "to get something straightened out so that the plant would run a lot
smoother, better for the girls and better for -him as an employer"; that Polydoris
offered to come to Frankfort, but Heaton suggested that because of the "confusion"
at the plant, they come to him, and so it was arranged that they meet next morning
at Sky Harbor Airport in Chicago. The next morning, Heaton and the other two
flew to the appointed place in a private plane, borrowed and piloted by Heaton.
On arrival, Polydoris informed them his lawyer told him he could 'not even "buy
[them] a cup of coffee," so they repaired to a restaurant, where the girls testified they
had a talk lasting about 2V hours, discussing the common interest of Polydoris and
Heaton in flying, domestic problems, and the rearing of children; and finally, the
"tension on the floor" and "what we could do," to which Polydoris replied this
was "none of his business," that "it was [their] union and that [they] would have to
get it settled [them]selves." They stayed on. at Chicago until the next day, Friday,
and it was then that they decided to file the decertification petition. Over the week-
end Heaton and Hunt solicited signatures to the petition at certain employees' homes,
and at 1 o'clock the afternoon of Monday, April 8, they filed it, their absence from
the plant having been from the early part of Wednesday, when they set out for the
Regional Office in Indianapolis the first time, to Tuesday, the day after they went
there the second time and filed the petition.
2" Wood v. Lady Duff Gordon, 222 NY 88, 118 NE 214.
27 The order in which they were called was: Joan Beaton. financial secretary; Martha
Jean Mohr, president; and Frieda Hunt, vice, president and shop stewardess.
WABANA, INC. 1181
The above did not tell us much that would implicate Respondent in direct com-
plicity with the occurrence . Quite the reverse : for their testimony was that Polydoris
gave them no more than amiable chit -chat , and brushed off their inquiry about
"squabbling" on the floor with the reminder that it was "[their ] union" to do with as
they . saw fit . But since they had deferred the decision on whether to file a decertifica-
tion petition until after their meeting with Polydoris , which Heaton testified she had
explained to him , in her call on April 3, was "to get something straightened out,"
the fair inference would be that something was said at the meeting which satisfied
them sufficiently on that 'score to tip the scales in favor of the ensuing decision to
file the petition . The account they gave of that conversation hardly met that de-
scription , and the resulting inference that they had not told the complete story was
reinforced by the undenied testimonies of Linda Smith and Juanita Crockett (who
testified after they did) concerning Heaton 's version of the conversation as given
separately to them , and partially corroborated , singularly enough , in the version
Polydoris himself gave of the meeting . Each gave that testimony without objection
from Respondent . Linda Smith testified that on the evening of April 8, after trying
to reach Heaton in the afternoon , to track down a rumor that the three girls had
seen Polydoris and had filed a decertification petition ( the details of which are
relevant to another context to be discussed later ) Heaton called her , explaining that
"we thought we were doing it for the girls' best interest ," that Smith said, "I guess
you know you shoved my job down the river ," to which Heaton responded, "No,
he promised no one in the plant would be fired [ and] told her that he would sit
down with the girls and their lawyer and draw up a new contract."
Crockett testified that on Saturday , April 6 , Heaton came to her home to solicit
her signature to the decertification petition , which Crockett in fact signed on being
informed by Heaton as follows:
Well, she said that she had went to Chicago to see Mr. Polydoris, and she said
that she talked it over with him, and he said it would be a good idea to get rid
of the Union and he would sit down with the girls and the girls could have a
lawyer , and he would have his lawyer , and make out a contract between the two
of them.
What Heaton told her fellow employees about the meeting contained the rational
link between the meeting and the ensuing decision to file the petition that was lacking
in the account she and her two associates gave at the bearing. The promise Heaton
attributed to Polydoris in her talks with Smith and Crockett was in line with , and was
a logical implementation of, his prior appeals that the girls abandon collective bar-
gaining in favor of individual dealing with him-that he made to Heaton and Mohr
themselves in his previously described testy response to their reminder that he
should have taken up the insurance changes "through the Union ," and to the girls as
a group the day he addressed them on the agency shop. In his version of the Chicago
meeting, Polydoris , in his own style, talked himself around to a tell-tale indication
that what he said to them was more in keeping with Heaton 's version of it to Smith
and Crockett than her and her associates ' version of it to us. He testified that heeding
his attorney 's "cup of coffee" admonition he was "very cautions and careful " against
getting "involved in any direct discussion involving specifics ." And then:
However, there were some general questions as to my background , and my at-
titude , and what I think about things. I distinctly remember telling these three
girls that my father was a union man , and I was you know, brought up in a
family, that unions was a part of our life . And I firmly believe in the seniority
system , and it is not necessarily because of-this is a fact , this is exactly what
I told the girls-seniority is a necessary thing from the management 's point
of view, because when a girl has been there five years-you know. I can go on
like this for an hour , but . But I gave them in philosophy what I thought,
but at no time did we talk specifics.
Q. I don't think the Trial Examiner wants to heai•-
A. But I gave them in philosophy what I thought, but at no time did we
talk specifics.
Q. All right. And that was the extent of the conversation.
A. Yes, sir.
Even a presiding officer's attention is not above undergoing a brief furlough , especially
with a witness whose discursiveness has already wearied him during previous ef-
forts at clarification on other matters . So, while appreciating counsel 's solicitude
concerning what the "Trial Examiner wants to hear ," I must attribute to this brief
lapse in close attention , my not encouraging the witness to elaborate on what he
"gave them in philosophy," the stage at which his counsel cut him off. But I
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would think he went far enough to indicate that he conveyed, albeit by a self-
'attributed avoidance of "specifics " and ,the exposition of • a "philosophy " calculated
to vouchsafe to them what would be entailed in the "specifics," what Heaton told
her fellow employees he did flatly without the tightrope performance he ascribed to
himself. But we shall return to this after we consider other factors bearing upon
management 's knowledge of the girls ' mission and its support of it , as the General
Counsel claimed.
Polydoris testified that "the subject of decertification was not brought up
to me at this meeting, and I did not even know that they had this in the back of their
minds." We need not labor the verity of his self-ascribed incapacity to put two
and two together, for the record indicates he had no need for even that modest
faculty to divine their purpose. Before Heaton called him late Wednesday, April 3,
she and the other two officers had spoken, successively, to Dick Nicholson, the
production and personnel manager, and Plant Superintendent McDougall about
decertification. A few days before this, Virginia Fink, an employee, inquired of
Polydoris and McDougall at the plant about ousting the Union, and they told her
"there was such a thing as decertification," but that to know the procedure she
"would have to go to the [Board's] office in Indianapolis." Fink relayed this to
Heaton. After this, on April 3, Heaton and her two fellow officers had the con-
versations with Nicholson and McDougall about decertification. On that day, as
appears in a later context, Nicholson, who passes on leave requests, cleared their
prospective absence for the 3i/2 working days consumed by the venture. So, if
the extraordinary call from Heaton did not awaken in Polydoris memories of his and
McDougall's talk with Fink, and of his own earlier appeals to abandon the Union
in favor of dealing with him individually, he could hardly have failed to call the
plant for a clue from McDougall and Nicholson concerning the purpose of the
girls' singular call and proposed pilgrimage.28
Two events at the plant, one the late afternoon of Monday, April 8, and the other
on the following morning, tend to show management's identification with and
sponsorship of the venture. On the afternoon of Monday, the 8th, the fourth day
of the girls' absence, rumors were rife about their having gone to Chicago (which,
they had kept a secret by giving their fellow employees purely personal reasons for
their contemplated absence) and about their having by this time filed a decertifica-
tion petition. Certain employees turned to trustee Linda Smith, who inquired of
Vilma Aders, the recording secretary. Aders thought the rumor well founded,
and the two agreed the situation needed looking into at once. They asked their
respective foremen if they could be spared the remaining 13/4 hours of the shift,
and the foreman said they could. Smith then went to Nicholson for the routine
clearance. He said he would have to check with their foremen. Smith told him
the foremen had already said they could be spared. He then went on to inquire
"if it was personal business." She replied , "No. It's union business . There's
some trouble. I want to see if I can get out and take care of it." Nicholson
s Employee Beatrice Harshman testified without denial that Nicholson told her shortly
after the petition was filed that the day before they flew to Chicago, which would be
April 3, "the girls came to him and asked him what he thought about [ decertification]"
and that he referred them to McDougall , with whom, he further related , " they talked . .
that night" before they flew to Chicago . Harshman also testified , without denial or objec-
tion, that at 5 a.m. on April 3, she and Mohr were due at the plant for special . duty, that
at 5 o'clock Mohr's parked car showed she already arrived at the plant but, she did not
join Harshman at work until about 10 minutes later, when she emerged from Nicholson's
office and explained that "she had been talking to Dick" but entreating Harshman "not
to mention it, because if it got out , he said he would deny talking to her ." Nicholson
testified that he had indeed talked to Mohr on that occasion but only about pending union
grievances over "overtime [ and] inequities ," with no mention of decertification . In view
of the nature of the venture on which Mohr was soon to embark with her two fellow
officers, union grievances would hardly then have engaged her time or her bent, nor would
such a subject be one to have impelled her to entreat her fellow employee to secrecy con-
cerning the mere 'fact of her having been at Nicholson 's office, and with the kind of reason
she gave . Nicholson 's later undenied disclosure to Harshman that the three girls had
spoken to him that very day about decertification , taken with the fact that he is the one
to pass on leave requests and his revelation (in his later described denial of the request
of two union adherents an April 8 to be excused shortly before closing time to track down
the rumor about the venture of the three 'officers ) that he knew of their mission, would
indicate that the conversation he told Harshman he had had with the girls concerning
'decertification took place at the meeting at dawn, about which ' Mohr , on emerging from
Nicholson 's office, had entreated Harshman to secrecy.
WABANA, INC. 1183
said he would check with their foremen anyway and would let her know. Ten
minutes later, one of the two foremen came to Smith and reported that Nicholson
would not let either of them off, and gave no reason. Smith then went to Nicholson.
He told her he vetoed the request because "he had already had to put up with three
girls being gone three and one-half days on union business."
Smith testified to the above without denial by Nicholson, nor was it explained. I
would think it called for explanation. The inference that he gave advance clear-
ance for the defecting officers' absence of 31A days is here confirmed by testimony
of Frieda Hunt (the defecting vice president) that she specifically requested and
obtained it from Nicholson for herself. She claimed that under her particular
schedule it meant missing one shift, but Nicholson's statement to Smith on April
8, in explanation of his refusal of her and Aders, would indicate that it was more.
At any rate, she had no problem. Hunt testified:
Q. What did you tell him?
A. I told him I wouldn't be there. Business.
Q. And what did Mr. Nicholson say?
A. Well, they never say nothing, when you are only off one day or so.
They don't ask any questions . [Emphasis supplied.]
It is doubtful whether she even had to go that far, since early in the day that
the three girls started out on their venture they had already spoken to him in-
quiring about decertification (supra, footnote 28), the only thing in the record to ac-
count for his statement to Smith attributing their absence to "union business." But
he could hardly have been candid in using that description of their mission. It
is a fair inference that when he turned these two down, despite their foremen's
approval, he was fully aware of the "union business" and the "trouble" Smith was
referring to, in contrast with the other girls' mission, whose absence he gave as the
reason for vetoing their respective foremen's approval of Smith's and Aders' re-
quest. As is to be inferred from an explanation he gave of a later-described con-
versation with Blanche Gill, which I have accepted as exonerating him of the Gen-
eral Counsel's accusation based on Gill's testimony (infra, footnote 29), he, as
personnel manager in the relatively small establishment, is attuned to "rumors"
and aware of the differing loyalties of the employees. The treatment of the two
requests for leave was thus strikingly disparate, one marked by extraordinary leniency
and the other by extraordinary rigidity. The action toward the two union adherents,
with its departure from the "no questions asked" procedure when a brief absence
is involved (to which the defecting Hunt testified), the pressing for a reason despite
being informed that the foremen approved the request, and the denial even after
verification of that approval, taken in connection with the contrasting leniency
toward the other three, would be a capricious act without rational motivation except
on the basis of a contrasting attitude toward the two missions-favorable to one and
hostile to the other. The action, taken in connection with the spuriousness of the
equating term used by Nicholson for the two opposing missions, was a discrimina-
tory application of leave policy in support of the mission on which Nicholson knew
the three defecting officers -to be engaged, and in interference with the legitimate
concerted activity of the union adherents.,
McDougall's address to the employees the morning of April 9, that evoked Repre-
sentative Sheets' complaint to Polydoris on April 11 that McDougall had told the
girls "he would run it like an army camp" if they did not. "go along" with the
petition, was the subject of conflicting testimony by the General Counsel's witnesses
on the one hand, and those of Respondent on the other. Linda Smith and Mary
Kemmerer testified that McDougall opened by reading the decertification petition.
He then explained that a hearing would be held and a vote taken on it, adding, as
Smith quoted him, that "we can't tell you how to vote, but . . . you know how
Mr. Polydoris feels about this," that the plant "had been run very informally up
to the present, but they would have to put a stop to it, and if the girls didn't go
along with this that he could run the plant like an army camp, but if they did go
along, he could run it just as informally as they had in the past." McDougall
and employees called by Respondent testified, in substance, that he complained
that there would have to be a stop to the girls running to and from the restrooms,
because it was impairing efficiency, and that his threat that the plant would no longer
be run "informally" but like an "army camp" was conditioned on their putting a
stop to or continuing their forays to the restroom.
This explanation, normally of an appealing quality, raised the question of how it
tied. in with the decertification petition,, which was admittedly his opening sub-
•ject, and was the occasion' for.. his assembling the employees. ' There was also
744-670-66-vol . 146-76
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this; none of Respondent 's witnesses mentioned McDougall 's reminder to the em-
ployees that they knew "how Mr. Polydoris feels about this." Neither did Mc-
Dougall, in his rather extended dissection of the "three points" of his speech. I
would think, however, that whether he did so remind them would be decisive:
there is no showing that Polydoris or anyone else in management had theretofore
complained to the employees of visits to the restroom, as against Polydoris' repeated
appeals to the employees to abandon collective in favor of individual bargaining.
Hence, McDougall's offering them the alternative between the plant being run
"informally" as before or like an "army camp," taken in connection with his open-
ing the meeting by reading and explaining the decertification petition, would
rationally relate to how they supported that petition , if it is also true that he told the
employees they knew how Polydoris felt about it. When counsel completed their
examinations of McDougall , I asked him if he did so tell them . He admitted
that he did, and I then invited him to develop what he had thereby "been trying to
convey to the girls." He testified it was the "ideas" expressed by Polydoris "when
the agency shop was talked about with he and Mr. Sheets," thus himself. providing
the clincher on the disputed aspect of his address .. Smith and Kemmerer are
credited.
Coming back to the meeting in Chicago, I have already indicated that the three
girls could not have given us the whole story of what took place there, an inference
one would reasonably draw even apart from Joan Heaton's telling Smith and Crockett
that Polydoris had promised to sign a contract with the girls, and Polydoris' own
revelation of his expounding to the girls on his "philosoph [ ic]" ardor for normally
union-achieved benefits, particularly seniority. Those three officers had until just
recently given affirmative manifestation of their prounion allegiance, most notably
Heaton and Mohr, who had protested to Polydoris the unilateral character of the
insurance change, and, just 5 days before their call to Polydoris, had distributed the
ballots on the agency shop , Heaton then also defending the Union against Polydoris'
innuendoes about the money collected . Neither in their testimony , nor in Heaton's
talks with her fellow employees, was there any indication of disillusionment with
collective representation in which they were responsibly involved and had so re-
cently espoused. Their concern, as Heaton expressed it, was over the "tension"
and "squabbling" or "bickering" among the girls. Yet, as various employees testified,
there had always been bickering among them even before the advent of the Union.
Smith credibly testified that it was accentuated during the rounds of meetings and
polls, reaching its peak before the poll on the agency shop and subsiding after the
decisive result that day.
One can hardly divorce the venture on which the three erstwhile union protagonists
embarked on April 3 from Polydoris' signal failure to show up at the plant on
April 2 to go through with his promise to sign the agency-shop clause. On the
heels of Polydoris' previous actions, it was a dramatic demonstration of how manage-
ment could not be relied on to fulfill any assurances obtained from it through the
Union. This would make Heaton and Mohr take a new look at Polydoris' previously
mentioned appeals to deal with him individually. The practical and hardheaded
Heaton, who dominated the venture, in telling Polydoris she and her two associates
wanted to get "something straightened out" to the mutual benefit of the employees
and Respondent, was, as is reasonably to be inferred, bent on having Polydoris
reduce his prior overtures to a concrete assurance that abandoning the Union would
not mean forfeiture of the benefits achieved through. it. The banner item, as the
evidence indicates, was security of tenure through a binding seniority policy-a
subject that an employee , in answer to the proposal Polydoris made to the employees
on March 28 that they deal with him, gave as a reason for wanting to continue to
deal through the Union. The session at the airport could hardly have brought
on-as it did-the decision to file the petition unless the girls were reasonably sat-
isfied they had an assurance from Polydoris of a binding seniority policy. That
they were led to believe they had one from him appears from what Heaton, in
answer to Smith's apprehensions over the effect of the girls' action on her job, and
also 2 days earlier, as an inducement to Crockett for the signature to the petition
she procured from her, told each of them of the contract Polydoris had promised to
sign in the event of the Union 's ouster , a matter given added credence by Polydoris'
description of how he thought he had engineered the tight course between "specifics"
and "philosophy."
The sum of the foregoing is that Respondent, in further violation of Section
8(a) (5), dealt with these three girls, now acting as individuals, concerning working
conditions in derogation of Respondent 's obligation to do so exclusively with the
Union , even though he did not , as the complaint further charges , "appoint [them as]
a committee" to do so . Polydoris' assuring the girls, whether, "philosoph [ ically]"
WABANA, INC. 1185
as he fancied he did; or flatly, as. Heaton described,it to her fellow employees, of a
binding seniority policy as an inducement to file the petition , Nicholson 's discrimina-
tory application of Respondent 's leave policy in support of the petition , and Mc-
Dougall's threat to the employees of "army camp" conditions unless they supported
it, separately and, in combination , and, against the background of the unfair labor
practices previously found, interfered with, restrained, and coerced employees in the
exercise of their rights under Section 7; and since these acts were committed while
negotiations were pending for signing the agency -shop clause and renewing the exist-
ing contract, they were calculated to hamper the Union in the performance of its
functions as bargaining representative and adversely to "so affect the bargaining
process" (N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 437) as to have thereby
also violated its bargaining obligation under Section 8(a)(5).29
IV. THE REMEDY
Respondent will be required to "cease and desist " from the unfair labor practices
found and "to 'take.such affirmative action as will effectuate the policies of the Act."
The above are the component parts of what.we traditionally call "the remedy," a
term ascribing to us a healing power soothing to the senses if not altogether com-
porting with reality. The Board and the courts do make allowance for the chasm
between the ideal and the obtainable by, defining the "effectuate the policies" standard
as one looking toward the "restoration of the situation , as nearly as possible , to that
which would have obtained but for the illegal [conduct]." 30 This last was articulated
by Mr. Justice Frankfurter in a case where the illegal conduct to be remedied was
discriminatory deprivation of jobs, and.the "affirmative action" called for such defini-
tive and externally verifiable conduct as the restoration of the victims to their jobs
and reimbursement of their pay losses, - and even then , of course , a legitimately
formulated order can hardly overcome the gap between the "restoration" objective
and the possible, which results from the disaffection of the union's adherents and
the aversion of those offered reinstatement to quit interveningly acquired jobs for the
ones in which they had their misadventures. The disparity between the lost and
restorable is even . greater where the matter to be "remed[ied]" is the employer's
wrongful repudiation of its bargaining obligation, more especially in a situation such
as unfolded here. Gone are the elements which existed at the time of the unlawful
refusal-a contract with still some time to run , a base of employee support so recently
demonstrated by the endorsement given the Union at the agency-shop poll, and,
indeed, the right to have the contract supplemented by the agency-shop provision.
The order cannot restore the contract , since its term has expired ; it cannot direct the
making or execution of any particular contract , however reasonable the expectation
that "but for the illegal [conduct]" here, "the situation . which would be ob-
tained" would have been the negotiation and execution of a new contract between
the Union and Respondent, containing the two clauses that had been agreed upon so
near the expiration date of the old one (since the wage changeover and agency shop
were concerned with a basic policy looking beyond. the brief residual duration of the
present contract). Our remedial powers are circumscribed by the nature of the
employer's duty under Section 8(a)(5) as amplified by Section 8(d). An employer
is required thereunder-and all that lies within our power to do-to direct the em-
ployer to reduce to writing and to sign an agreement actually negotiated to an
accord between it and the bargaining representative . The salvage is in the first step of
A The General Counsel additionally claims that Respondent, through Nicholson, threat-
ened that the employees who continued to support the Union would be blacklisted. The
claim is based on the testimony of Blanche Gill that on April 10. Nicholson came to her
workplace and so told her. Nicholson denied this. He explained that he had heard
rumors that the union adherents were going to expel the three defecting officers and have
them blacklisted from other employment; so he "picked" Gill, whom he knew to be an
ardent union adherent, to whom to express his.disapproval of blacklisting, whether done
by management or union . The explanation is persuasive, and in my opinion, stands up
against the uncorroborated testimony of Gill. She struck me as having the kind of pro-
union bias which impaired her objectivity,. in contrast with the other credited witnesses,
most notably, Linda Smith, concerning whose dispassionateness I have previously com-
mented (supra. footnote 10). I, accordingly, reject the General Counsel's proposed finding
of a'blacklist threat based on the testimony of Gill.
30 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194, adopted by -Chief Judge Parker in
Virginia Electric and Power Company v. N.L.R. B., 132 F. 2d 390 (,C.A. 4), affd. 319
U.S. 533.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the process : that the employer recognize the Union as the exclusive bargaining rep-
resentative of its employees and, at the Union 's request, bargain with it "in good
faith."
The above has a negative aspect and an affirmative one. It means calling it a day
on the roster of the tactics here found to have been restorted to: no more by-
passing of the Union in respect to changes in working conditions , either by changing
them directly without consulting the Union or by offering them to and polling the
employees concerning them instead of submitting the proposals in the first instance
to the Union; it means also no more failure to reduce to writing and to sign all
agreements or accords arrived at with the Union ; no more union-discrediting reversals
of promises or prior understandings reached with the Union ; no more inducements
to employees , whether flatly made or fancied to have been done so "philoso-
ph[ically ]," to abandon collective in favor of individual bargaining ; no more dealing
with individual employees whether singly or in groups , concerning wages , hours, or
other conditions of work ; no more threats of more stringent working conditions if
they do not abandon their certified bargaining representative in favor of individual
bargaining , or discriminatorily applying Respondent 's policy in respect to requests
for leave or other policies in order to support or encourage the abandonment of
collective for individual bargaining . It means also drawing the closing curtain on
similar devices to undermine the Union 's bargaining status and on all devices
calculated to thwart or obstruct the bargaining process. Indeed , the ingenuity shown
by the Respondent on that score as well as the disposition to put it to maximum use
renders it impracticable to confine the restraining order to the particular catalogue
of malfeasances unfolded by this record . Hence , to make the prevention com-
mensurate with the reasonably anticipative , and to achieve the wholesome "benefits
of prevention or prophylaxis" 31 Respondent will be required to refrain from invad-
ing the guaranteed rights of its employees "in any other manner." 32
But the above is merely the "cease and desist" or negative aspect of Respondent's
remedial obligation. As the Supreme Court has put it, "one of the chief responsibili-
ties of the Board is to direct such action as will dissipate the unwholesome effects
of violations of the Act ." 33 To "dissipate [ their] unwholesome effects," the bargain-
ing relationship here required to be reestablished "must be permitted to exist and
function for a reasonable period , in which it can be given a `fair chance to suc-
ceed '." 34 To give it that "fair chance," Respondent must bargain with the Union
"in good faith ." That entails something above and beyond merely meeting with the
representative and going through the surface forms of bargaining . It means genuine
negotiations with an honest intention of reaching an agreement . It does not require
either bargainers to submit to terms that are unacceptable . But it does call for the
mutual exploration of common ground in a genuine effort to compose differences in
order to strike an accord , and when that accord is reached, to reduce it to writing and
sign it.
Concerning the form of the notice : it may be presumed that by this time the
ranks of union supporters , despite the majority impressively demonstrated shortly
before the total repudiation , have undergone the inevitable attrition that ensues when
the bargaining representative has been wrongfully denied the opportunity to function.
To avoid the impression among the disaffected and the newly hired that a bargaining
representative has been superimposed upon them without regard to choice , it would
appear appropriate that the notice set forth the requisite information to make the bar-
gaining requirements and the basis therefore reasonably comprehensible to them-
such as a description of the Union 's original status as the employees ' duly chosen
representative , the basis on which the employer's refusal to deal with it has been
found to be wrongful , and the consequent need to remedy that refusal by requiring
the employer to restore the bargaining relationship and giving it a "fair chance to
succeed."
Upon the foregoing findings and the entire record, the Trial Examiner hereby
states the following: .
CONCLUSIONS OF LAW
1. Respondent , Wabana, Inc., is an employer engaged in commerce within the
meaning of the Act.
a Chief Circuit Judge Hutcheson , Judging as Administration, Administration as Judging,
21 Texas Lew Rev. 1, 6.
sa N.L.R.B. v. Cheney California Lumber Company , 327 U . S. 385, 387.
33Franks Bros . Company v. N.L.R.B., 321 U.S. 702, 704.
34 Ibid.
WABANA, INC. 1187
2. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a
labor organization within the meaning of the Act, and at all times herein was and
still is the duly certified collective-bargaining representative of an appropriate unit
of Respondent 's employees consisting of: all production and maintenance employees
at the plant in Frankfort , Indiana, including the shipping department employees and
the janitress (and excluding office and professional employees and all guards and
supervisors).
3. By submitting its proposal for a wage change directly to the employees instead
of said representative and polling the employees concerning the same; by unilaterally
changing working conditions before notifying or consulting with said representative;
by refusing to reduce to writing and sign an agency-shop clause despite fulfillment of
the agreed condition for adoption of said clause and in breach of later promises to
execute a supplemental agreement embodying said clause, the Respondent has failed
and refused to bargain collectively with said representative, thereby engaging inunfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
4. By engaging in the above conduct as part of a systematic and preconceived
design to undercut the Union as exclusive bargaining representative of the employees
and to cause a disaffection of the employees from the said bargaining representative,
including the systematic reversal of agreements previously made, and the making
of agreements with the undisclosed intention of breaking them, Respondent failed
and refused to bargain with the said representative in good faith, thereby further
engaging in an unfair labor practice within the meaning of Section 8(a) (5) and (1)
of the Act.
5. By repudiating the bargaining obligation altogether, without reasonable ground
for doubting the Union's majority and by raising such doubt in a context of unfair
labor practices and a total course of conduct calculated and intended to cause the
employees to abandon said representative in favor of individual bargaining, Re-
spondent has engaged in and is engaged in an unfair labor practice within the mean-
ing of Section 8(a) (5) and (1) of the Act.
6. By the above, and by threatening to close the plant rather than notify and
consult with the said representative in advance of changes in working conditions;
and by supporting and assisting a decertification petition through promises of bene-
fits to employees in the event of repudiation of said representative, discriminatory.
application of Respondent's policy in respect to leave requests, and threat of more,
stringent conditions in the event of the employees' failure or refusal to repudiate
said representative, Respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
7. The above unfair labor practices affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. Respondent did not threaten employees with boycotting them at other em-
ployment if they supported the said representative, or engage in unfair labor prac-
tices alleged in the complaint, other than herein found.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions, and the entire record, and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby recommends that the Re-
spondent, Wabana, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Union of Electrical, Radio
and Machine Workers, AFL-CIO, as the duly certified exclusive collective bargain-
ing representative of its employees in the following appropriate bargaining unit:
All production and maintenance employees of the Employer at its Frankfort, Indiana,
plant, including the shipping department employees and the janitress; but excluding
office employees and all guards, professional employees, -and supervisors as defined
in the Act.
(b) Unilaterally changing working conditions, including insurance, without pre-
viously notifying or consulting with said representative.
(c) Directly offering to or polling employees on proposals for changes in the
contract or in working conditions, instead of making such offers or proposals di-
rectly and in the first instance to said representative.
(d) Refusing to reduce to writing.and sign a contract or amendments to any
contract as agreed upon between Respondent and said representative.
(e) Threatening to close the plant rather than comply with the obligation to
notify and consult with said representative before making changes in. working
conditions, including insurance.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Promising benefits as inducements = to, or threatening to impose or imposing
harsher conditions , to coerce employees into abandoning thel certified bargaining
representative in favor of individual bargaining.
(g) In any other manner interfering with or thwarting the efforts of the above-
named representative to bargain collectively with the Respondent on behalf- of said;
employees or obstructing or hampering the bargaining process.
(h) In any other manner interfering with , restraining , or coercing said employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is- found will effectuate the
policies of the Act.
(a) Upon request , bargain collectively and in good faith with . International
Union of Electrical, Radio and Machine Workers , AFL-CIO, as • the exclusive
bargaining representative of its employees in the above -described unit in respect to
grievances , labor disputes , wages, rate of pay,. hours . or conditions of work , and, if
an understanding or accord is 'reached , embody such understanding or accord , whether.
in respect to a contract or amendments thereto , in a duly signed and executed
writing.
(b) Post at its plant in Frankfort , Indiana, copies of the attached notice marked
"Appendix ." 35 Copies of said notice , to be furnished by the Regional Director
for the Twenty -fifth Region , shall, after being duly signed by Respondent 's presi-
dent , be posted by Respondent immediately . upon receipt thereof and be main-
tained for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps
shall be taken to see that said notices are not altered , defaced , or-covered by other
material.
(c) Notify said Regional Director , in writing, within 20 days from the receipt
of this Decision , what steps Respondent has taken to comply herewith.36
IT IS FURTHER RECOMMENDED that the complaint be dismissed in respect to any
alleged unfair labor practices other than those herein found.
15 Should this Recommended Order be adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. Should the Board's Order be enforced by a decree of a United States Court
of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an
Order" shall be substituted for the words "A Decision and Order."
sl In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
To OUR EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to carry out the policies of the National Labor Rela-
tions Act, we inform you as follows:
After a hearing duly held, it was determined that Wabana, Inc., at a time.
when International Union of Electrical, Radio and Machine Workers, AFL-
CIO, was the duly certified collective-bargaining representative of our employees
in the unit named below, had engaged in a series of illegal acts undercutting
the standing of the union as the exclusive bargaining representative of our em-
ployees and that the Company finally broke off the bargaining relationship and
refused to bargain with the Union altogether, despite the Union's continuing
status as the employees' duly designated bargaining representative.
To remedy the above conduct, we have been required to reestablish the bar-
gaining relationship with the Union and to give it a fair chance to Succeed by.
not again engaging in the conduct found to have been unlawful and by bargain-
ing in good faith with the Union in an honest and genuine effort-to arrive at an
agreement and by signing and executing any agreement thus arrived at.
According, we hereby assure all of you as follows:
WE WILL NOT refuse to bargain collectively with International Union of
Electrical, Radio and Machine Workers, -AFL-CIO, and, on request, WE
WILL bargain with it in good faith in respect to grievances wages, hours,
working conditions, and other conditions of employment, and in event -of
agreement, reduce to writing and sign a contract embodying the same, in
respect to the following unit of employees: All production and maintenance.
employees of the Wabana plant, in Frankfort, Indiana, including the ship-
THE STANDARD OIL CO. (OHIO) (AKRON DIVISION) 1189
ping department employees and the janitress, and excluding office employees
and all guards, professional employees, and supervisors , as defined in the
National Labor Relations Act.
WE WILL NOT offer any proposals for a contract or for clauses or changes
in a contract or in working conditions except directly to said union and
will not make any changes concerning them except after first notifying,
consulting with, and negotiating in good faith with said Union concerning
the same.
WE WILL NOT try to discredit the Union by going back on promises to or
agreements made with it, or by making promises to or agreements with
the Union , with the preconceived intention of backing out on them.
WE WILL NOT threaten to close the plant rather than comply with our
obligation to notify and bargain with the union in respect to any change of
working conditions.
WE WILL NOT promise any of our employees benefits to induce them, or
threaten any of our employees with more stringent conditions , or discrim-
inate against them in respect to our policy concerning leaves of absence
or any other policy, in order to coerce them , into abandoning the Union in
favor of dealing individually with us.
WE WILL NOT in any other manner interfere with the efforts of said
Union to represent you and to bargain for and negotiate working conditions
on your behalf , nor will we in any other manner seek to obstruct the
bargaining process.
WE SHALL respect your rights under the National Labor Relations Act
and shall make every reasonable effort to give the bargaining relationship
with the Union a fair chance to succeed by bargaining with it in an honest ef-
fort and with a genuine intention of arriving at an agreement , and by re-
ducing to writing and signing any agreement we arrive at, and honoring its
terms.
WABANA, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If any employees have any questions concerning what the above notice means or
requires , they may get in touch with the Board 's Regional Office , 614 ISTA Center,
150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose 3-8921, in
person , by telephone , or by mail.
The Standard Oil Company ( Ohio) (Akron Division ) and Akron-
Youngstown Petroleum Workers
The Standard Oil Company (Ohio ) (Youngstown Division) and
Akron-Youngstown Petroleum Workers. Cases Nos. 8-RC-4745
and 8-RC-4747. April 29, 1964
SUPPLEMENTAL DECISION AND ORDER
On June 22 and August 10, 1962, respectively, Akron-Youngstown
Petroleum Workers, the Petitioner herein, was certified as collective-
bargaining representative of two identical bargaining units of opera-
tions and maintenance employees of the Akron and Youngstown sales
divisions of the Employer, including, among others, drivers.
On November 6,1963, the Petitioner filed separate motions to clarify
certifications with respect to whether certain individuals classified as
"distributors" and "consignment distributors" in the Employer's
146 NLRB No. 148.