Burlington Rendering Co.

Consolidated Rendering Company , d/b/a Burlington Rendering Company and Amalgamated Meat Cutters, Foodstore and Allied Workers of North America, AFL-CIO, Local Union No 33 Cases 1-CA-5158 and 1-RC-8544 October 14, 1966 DECISION AND ORDER On June 13, 1966, Trial Examiner William Seagle issued his Decl sion in the above entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci sion He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that they be dismissed Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Exam iner's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three member panel [Chairman McCulloch and Membeis Fanning and Jenkins] The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recom mendations of the Trial Examiner [The Board adopted the Trial Examiner's Recommended Order ] 1 We agree with the Trial Examiner that the Respondent violated Section 8 (a) (5) and (1) of the Act by unilaterally changing the terms and conditions of employment after the Union lost the election and while the unfair labor practice charges and objections to the election were pending Having found that the Respondents refusal to bargain as of Au gust 4 was not motivated by a good faith doubt and that the Respondent was therefore obligated to recognize and bargain with the Union we concur with the Trial Examiner that the Respondent was not privileged unilaterally to grant wage increases and other benefits and that by doing so the Respondent further violated Section 8 (a) (5) of the Act See The Coieon Corporatwn 148 NLRB 827 enfd 347 F 2d 128 (C A 8) TRIAL EXAMINERS DECISION Upon a petition filed on August 3 1965 by Amalgamated Meat Cutters Food store and Allied Workers of North America AFL-CIO Local Union No 33 161 NLRB No 3 1 264-188-a7-vol 161-2 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (hereinafter referred to as Local 33 or as the Union ) and a stipulation for con sent election approved August 24 1965 an election was directed and held on September 15 1965 to resolve the question of the representation of the employees of the Respondent The tally of the ballots cast in the election showed approxi mately 26 eligible voters that 27 ballots had been cast of which 10 had been cast for the Union and 13 had been cast against it and that 4 ballots including the ballot of Harold Rayta, had been challenged Under date of September 17 1965 the Union filed objections to conduct affecting the results of the election based on alleged violation of Section 8(a)(1) of the Act by the Respondent and on the same day filed a charge that the Respondent had violated Section 8 (a)(1) and (5) of the Act Under date of October 18 1965 the Regional Director filed his con sohdated report on the objections and the challenged ballots in which he recom mended that the Union s objections be overruled and that the challenge to the ballot of Harold Rayta be sustained on the ground that he was a watchman who was not a bargaining unit employee No recommendation was made by the Regional Director with respect to the other three challenged ballots since it seemed that they could not affect the results of the election Objections to the Regional Director's consolidated report having been filed by the Union on October 28 1965 the Board entered an order on November 24 1965 directing a hearing to resolve the issues raised by the Unions objections to the conduct affecting the results of the election and providing that such hearing might be consolidated with the hearing on the Unions charges of unfair labor practices i Under date of December 8 1965 the Regional Director consolidated the hearing in the representation proceeding with the hearing in the complaint case and issued a complaint in this consolidated pro ceedmg Under the date of December 13 1965 the Respondent filed an answer to the complaint denying the commission of any unfair labor practices Trial Examiner William Seagle held a hearing with respect to the issues in the consolidated proceeding at Burlington Vermont on March 2 3 and 4 1966 Upon the evidence adduced at the hearing the postheanng briefs filed by the parties and in view of my observation of the demeanor of the witnesses I hereby make the following FINDINGS OF FACT I THE RESPONDENT The Respondent is a corporation organized under the laws of the State of Maine the principal office and place of business of which is at 1093 North Avenue in the city of Burlington county of Chittenden in the State of Vermont The business of the Respondent consists of the manufacture sale and distribution of inedible fats fertilizers poultry feed and related products as well as of the processing of hides and skins To carry on its business the Respondent operates and maintains various plants and facilities but the only plant of the Respondent involved in the present proceeding is the plant at Burlington Vermont in connection with which it also maintains branch collection stations at Rutland Vermont St Johnsburg Vermont Potsdam New York and Peru New York In the course and conduct of its business the Respondent causes and continuously has caused large quantities of raw materials used by it in its manufacturing opera tions and in the processing of hides and skins to be purchased and transported in interstate commerce from and through various States other than the State of Ver mont The Respondent also causes and continuously has caused substantial quan tities of inedible fats fertilizers poultry feed and related products and hides and skins to be sold and transported from its Burlington plant in interstate commerce to States other than the State of Vermont In the course and conduct of its business the Respondent annually receives di rectly from points located outside the State of Vermont goods products, and materials valued in excess of $50 000 and annually ships directly to points located outside the State of Vermont goods products and materials valued in excess of $50 000 II THE LABOR ORGANIZATION INVOLVED Local 33 is a labor organization which has sought to organize the employees of the Respondent i The Respondent filed a petition for reconsideration of this order which was however rejected by the Board on January 4 1966 CONSOLIDATED RENDERING CO e3 III THE UNFAIR LABOR PRACTICES A An outline of the events leading to the present proceeding The Union launched its organizing campaign among the employees of the Respond ent in the month of June 1965 2 The campaign was conducted by one Michael J Weston an international organizer of the Union There is very little direct evidence concerning what happened in the course of the campaign But there is little doubt that the three most active employees in the union campaign were Texas H McLeod a tractor trailer driver who had been a Burlington employee for 25 years Albert Rabidoux who bore the title of hide house foreman and who had been a Burlington employee for 10 years and Arnold Gover a buyer and collector who had been a Burlington employee for 8 years These three old employees were the ones who apparently did most of the soliciting of the other employees to sign union authon zation cards The solicitations were extremely successful Between June 24 when Texas H McLeod signed the first authorization card and August 2 when the last of them was signed the Union had obtained 22 authorization cards which constituted a majority of approximately 75 percent of the employees in the bargaining unit 3 As the Burlington plant is not very large and the employees talked about the union campaign the Respondents managerial hierarchy soon became aware that the Union was attempting to organize the employees The three chief members of the man agenal hierarchy were Peter S Simon the plant manager Raymond F Gero the plant superintendent, and Gerald E Kimmey the assistant manager Simon admitted that he became aware of the presence of the Union on the scene early in July although he was very reluctant to name his informants He testified that employees would call him up and tell him about the Union Asked who called him up he testa fled I don t recollect But, hardly were these words out of his mouth, when he recollected that Harold Rayta called him up a number of times to tell him about the Union, and that about the same time Robert Byrne another employee came in to see him in person one Saturday morning to tell him that the Union was engaged in organizing the employees 4 Simon was similarly evasive in testifying with respect to what he learned from his conversations with Rayta and Byrne After testifying that he learned nothing from either of them except that the Union was active and that not a single- employee although practically all the employees talked to him volun teered anything as to whether he had signed a union card or was otherwise active or told him who was against the Union he was soon admitting that his knowledge was in fact quite extensive for he testified as follows Q Do you know that some employees were in favor or that some employees were not in favor of the union? A Yes I did Q Did you know that some employees were for the union? A Some told me they were for the union no sir no there was nobody told me they were not for the union. (Emphasis supplied ) Early in July when the rumors about the Union were becoming rife Gero told Kiinmey that he had heard that Arnold Gover had been talking union Kimmey undertook to ask Gover about the union situation and had the latter summoned to his office for this purpose Kimmey asked Gover whether it was true that he was instigating for the Union To this inquiry Gover replied Yes sir Kimmey then asked Gover what he wanted a union for whether it was because he did not like his job or because he wanted a raise Gover replied that he wanted a raise but only for the whole plant Kimmey then suggested going to the office about a raise but Gover only reiterated that he wanted raises for the whole plant Thereupon Kimmey remarked to Gover I could make things pretty miserable for you I could cut your time take stops off your run But Gover declared that if the Union got in he expected to make as much in 30 hours as he was then making in 40 hours and refusing to discuss the Union any further on company time walked out of the office Kimmey admitted talking to Gover about the Union on this occasion and asking Gover whether he knew anything about it Asked whether he had said anything else to Gover Kimmey at first testified Not that I recall Then almost immediately he recalled that Gover said that he was interested in getting a raise not for himself ' All dates hereinafter mentioned are in 1965 unless otherwise indicated ' The composition of the bargaining unit is discussed infra 4 Indeed all the indications are that Rayta and Byrne neither of whom ever signed union authorization cards were the two employees who kept the Respondents managerial hierarchy best informed concerning the progress of the union campaign 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but for everybody and that he had then remarked that he would still be running the roes Thus all that Kunmey denied in giving his version of his conversation with Goer was that he oftered Gover hiniself a raise and threatened to make things miserable for him if he proved recalcitrant It is apparent that these denials are unbelievable and must be rejected I rate the credibility of Kimmey low indeed Although according to his own testi mony he undertook to talk to Gover at the behest of Gero Kimmey actually testified that after talking to Gover and discovering that the rumors he had heard were true he discussed the situation with no one thereafter either in the month of July or in the month of August Indeed he gave utterance to the astounding declaration When ever the occasions of union was brought up I just dropped it right there Yet Gero testified that Simon told him and Kimmey in the middle of July that we was to not say anything more about the union (Emphasis supplied ) It is also not without significance that although Gero and one of the Respondents salesmen by the name of La Favre were present during the conversation between Kimmey and Gover Gero was not invited in the course of his testimony to corroborate Kimmey s version of his conversation with Gover and the salesman was not called as a witness by the Respondent for this same purpose About the same time that Gover was interrogated by Kimmey another employee Edwin John Dunham was questioned about the Union by Gero himself The ques tioning took place in Gero s office Gero asked Dunham whether he had heard the talk about the Union and Dunham admitted that he had Thereupon Gero remarked that he hoped that the Union would not come in because the Burlington plant might be closed down Dunham then inquired from Gero whether it might be made a substation like in Albany and Gero stated that this was possible in fact that the Company might put up smaller fertilizer plants throughout the State that could be run just by two or tree men and thus the workers in the Burlington area might be eliminated Gero denied having this conversation with Dunham but I do not credit his denial for Gero was at least as evasive and contradictory a witness as Kimmey For example although he had already mentioned that Simon had told him in the middle of July that he was not to say anything more about the Union, sonic Imputes later he was denying that he ever talked to Simon about the Union When the discrepancy in his testimony on this point was called to his attention he was forced to admit that he had testified incorrectly Similarly although he had denied that he spoke to any other employees than Bessette and Richard Gonyea about the Union in either the months of June July or August he then admitted that after he had returned from his vacation which was in the last 2 weeks in August, one of the employees Harold Maskell had told him that he had received a union card On July 29 and 30 Simon was in Boston to consult the attorney representing the Respondent in the present proceeding in order to ascertain, apparently what he could legally do to oppose the Union On this occasion he received from counsel a list of dos and don is for supervisors in union campaigns The list contained 21 dos and 25 don is although typed in single space the list covered three full pages 5 On the second day that Simon was in Boston counsel for the Union addressed a letter to the Respondent in which he set forth the claim that Local 33 represented a majority of its production and maintenance employees and made the request that the Union be recognized as their bargaining representative for the purposes of collective bargaining concerning wages hours and other conditions of employment Counsel for the Union also stated -in the final sentence and paragraph of the letter `The union is prepared to demonstrate proof of its majority status at any reasonable time sug gested by you and requests that you contact the union as soon as possible for the purpose of negotiating a collective bargaining agreement The Unions letter of July 30 which was mailed on Friday was received by the Respondent the following Monday August 2 On that day Simon called together all his supervisors including of course Gero and Kimmey for a meeting At this meeting Simon according to his testimony not only handed them the list of do s and don is but explained each one of them in detail But according to Gero what Simon told the supervisors at this meeting which he estimated lasted 15 or 20 minutes was that he had got official information about what not to do and what to do about this union business but let everything drop don t say a word about nothing (Emphasis supplied) It is clear from Simon s testimony however that one 5 The full title of the list phich is in evidence as Respondent s Exhibit 6 is Some Do s and Don to under the Labor tanagement Relations Act of 1947 and the Labor Management Reporting and Disclosure Act of 1959 CONSOLIDATED RENDERING CO 5 question which he did not ask of any of the supervisors was whether they had not already violated any of the do s and don is It is also clear that Simon never called another meeting to verify whether the don is were being observed Two days after his meeting with his supervisors namely on August 4 Simon replied to the Unions letter of July 30 In his reply Simon declined to recognize the Union on the ground that the Respondent had a good faith doubt that it actually represented a majority of the employees in an appropriate bargammg unit, and suggested that a Board conducted election would be the proper way of resolving this doubt. In the penultimate paragraph of his letter of reply Simon also advanced the following argument against accepting a card check You must also be aware that the showing of cards signed by employees desig nating a union as its representative is subject to many questions which we would have difficulty in resolving Among other things we would have no way of knowing the circumstances under which the cards were signed and whether at the time they were signed and at the present time they reflected the true intention of the employees who signed them Despite the don is Gero Kimmey and Simon could not refrain from approaching some of the employees and from attempting to influence them A few of the don is seem to have been honored in the breach or at least they seem to have been mis understood One of the don is warned against use of any intimidating language and another against asking employees for an expression of their thoughts about a union or its officers But while these items of advice were excellent, they seem to have been neutralized by one of the do s which permitted supervisors to Actually campaign against a union seeking representation of your employees " One day Gero had two of the employees summoned to his office in order to interro gate them These two employees were Joseph L Bessette and Richard L Gonyea, both of whom had been employed as laborers only very recently Bessette had been employed on March 10 1965 and Gonyea had been employed on July 28 1965 Bessette was instructed by Winton Gelinas the working foreman in the fertilizer department to report to Gero s office When Bessette arrived in Gero s office the latter asked him how he felt, which the employee took to mean how he felt about the Union Bessette replied that he was just a greenhorn--a reference to his very recent status as an employee-and that it was not up to him he would go along with a majority of the employees Gero then instructed Bessette to tell Gonyea to report to his office Like Bessette Gonyea was asked by Gero what he thought about the Union and Gonyea replied that he was undecided Gero attempted to justify his interrogations of Bessette and Gonyea on the Wound that they were only temporary employees but he was unable to explain how the allegedly temporary nature of their employment bore upon the situation 6 There is a sharp dispute concerning the tuning of the interrogation of Bessette and Richard Gonyea In response to leading questions both of these employees testy fled during their direct examinations that the interrogations by Gero occurred prior to the time that they had signed their union authorzation cards. As Bessette signed his union authorization card on July 27 and Richard Gonyea signed his card on July 30 it would have to be assumed that the interrogations occurred prior to these dates But on cross-examination it became apparent that Bessette could not really remember whether he was interrogated by Gero before or after he signed his union authorization card The cross examination of Richard Gonyea showed that his memory of the timing of the interrogation was equally vague and unreliable Although he had testified that he had been interrogated by Gero about a week before he signed his union authorization card this could not possibly be true since he had not even been employed until July 28 and it is most improbable that Gero would have interrogated him on the day of his employment, or even within a day or two there after Like Bessette Richard Gonyea was finally forced to admit that he could not really recall when he had been interrogated by Gero I am nevertheless convinced that the interrogations occurred not long after the Union filed its representation petition on August 3 and I derive this conviction from the testimony of Gero and his demeanor as well as the inherent logic of the testy mony as a whole During his direct examination Gero testified that he interrogated Bessette and Richard Gonyea early in the last week of July Since Gonyea had not been hired until July 28 which was the Wednesday of the last week in July this testimony could not possibly be true In fact, it was deliberately false for immediately Actually as is shown infra in connection with the discussion of the bargaining unit neither Bessette nor Gonyea had been hired as a temporary employee 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after giving this testimony Gero was asked for what purpose he had called Gonyea into his office and answered the question by testifying I had heard rumors that there was about to be a union organizer at Burlington (Emphasis supplied) As it is plain from the testimony of Gero Kunmey and Simon in other connections that they had heard rumors about the Union at least as early as the first week in July Gero obviously could not fix his interrogation of Bessette and Richard Gonyea with refer ence to the time that he first heard rumors about the Union. During his cross examination however I believe that Gero did finally let slip the truth about when he interrogated Bessette and Richard Gonyea He testified at first that when counsel for the Respondent was in Burlington in the middle of the last week in July he told the latter that he had spoken to these two fellas the same time Alas the middle of the last week in July was Wednesday July 28 the very day that Gonyea commenced to work for the Respondent and he could hardly have been interrogated Thursday As Simon was undoubtedly in Boston on July 29 and 30 seeking advice from counsel for the Respondent, it is moreover in the highest degree unlikely that the latter was in Burlington at this time If he came to Burlington at all it must have been sometime between August 2 when Simon met with his supervisors to distribute to them the do s and don is and August 6 when counsel for the Respondent left to attend the convention of the American Bar Association which had opened in Miami on August 7 However the truth came out later in Gero s cross -examination in an unguarded moment when he was testifying about who were present at the supervisors meeting on August 2 He then testified as follows Q Let me ask you approximately how long after he started working for Burlington Rendering did you call Mr Gonyea into the office? A Oh it may have been a week or two Q Aweekortwo9 A Probably two weeks Two or three weeks possibly It was no it was before It was before we got our do s and don is in writing It was apparent that Gero crestfallen as he suddenly realized the blunder that he had made in admitting impliedly that he had violated one of the don is was seeking to undo the damage Since his testimony shows that he had confessed his sin to counsel for the Respondent I deduce that he must have interrogated Bessette and Richard Gonyea either between August 4 and 6 when counsel for the Respondent could have been in Burlington, or after August 16 when he returned from the American Bar Association convention The mere fact that Gero reported his inter rogation of Bessette and Richard Gonyea to counsel for the Respondent indicates quite plainly that it must have occurred subsequently to the issuance of the don is It would be highly unreasonable to assume that Gero would report an ancient sin to counsel for the Respondent and that this sin would be one which could not affect the result of the forthcoming election The immediate spur to the interrogation must have been indeed the prospect of the election It is reasonable to assume moreover that if Simon himself transgressed the don is his subordinates would be more likely to do so and it is undisputed that in the middle of August Simon had a conversation of a questionable character with one of the employees named Ralph Gonyea who was a receiving clerk on the night shift and who was at the time of the conversation, which took place between 9 and 9 30 p in on the loading platform engaged in unloading a truck According to the testa mony of Ralph Gonyea, on direct examination he was asked by Simon who had driven up in a car with someone whom Gonyea described as the assistant vice press dent, why he did not apply for a truckdriver's job and when he replied that he couldn t get out of the plant (by which Gonyea meant that no one would give him a truckdriver s job) Simon undertook to speak to Gero about it Simon then brought up the subject of the Union in the course of the discussion of which Simon remarked that he knew the guys that was for the union naming three of them namely Gover McLeod and Rabidoux and stated that if the Union came in the Blue Shield Blue Cross insurance which the company was carrying might be dropped Gonyea further testified that he also asked Simon about getting off Friday nights or Satur days and Simon promised to speak to Gero about it It seems that Gonyea, despite the fact that he was on the night shift that extended to 11 p in also worked Saturday mornings being required to report at 7 a in on such mornings which left him little time to sleep Ralph Gonyea, who is a not very articulate or sophisticated individual was sub jected to a long and persistent cross -examination in the course of which it was shown that he was less certain than he had been during the course of his direct examination about various details of his nighttime conversation with Simon But he contradicted himself on only one important point namely whether it was Simon who had brought CONSOLIDATED I EN DERING CO 7 up the subject of the Union Faced with this question Gonyea first denied that it was he rather than Simon who had first brought up the subject of the Union then admitted that he could have brought the subject up pressed further he declared it was possible that he had brought up the subject of the Union and concluded his testimony on this point by stating that he could not remember who had brought up the subject of the Union Despite Gonyea s uncertainty on some points I am nevertheless convinced that he truthfully testified concerning Simons remarks about the union situation and that whoever it was who broached the subject of the Union Simon in the course of the conversation did undertake to ameliorate Gonyea s posi tion and help him get a truckdriver s job and that Simon also made the remark about the Blue Shield Blue Cross insurance Observing Gonyea in his struggle to deal with the questions being put to him it became apparent to me that he was a witness who was not attempting to deceive but a witness who was attempting to be scrupu lously truthful even at the cost of seemin g to involve himself in contradiction Moreover Simon himself did not deny having a conversation with Ralph Gonyea on the night in question a conversation which according to Simon occurred when he returned to the plant to pick up his car after dining at the Victorian Restaurant with his wife and the assistant to the Respondents president who had driven them to the restaurant Furthermore in his testimony concerning the conversation that then occurred Simon himself admitted that Gonyea had complained about his hours and that he did undertake to talk to Gero about this and faced with the direct question whether he had not also talked to Gonyea about finding work for him as a driver he did not flatly deny it but testified only I don t believe I did Perhaps even more significantly Simon s testimony carries with it a strong implication that Ralph Gonyea correctly testified during his direct examination that it was Simon who brought up the subject of the Union although obliquely or indirectly which would explain why Gonyea was so uncertain on this point Asked what he had done after he espied Gonyea on the loading platform Simon testified I went up and talked to him I says how are things going? He says pretty good I says any trespassers on our property (Emphasis supplied) At this point an objection cut off further explanation of the puzzling question why the manager of a plant which employed watchmen or guards for its protection should ask a receiving clerk right off about trespassers on the property unless union organizers would qualify as such Asked again to state the conversation Simon explained The conversation was how are things at the plant anything new This in the context of the union situation at the plant certainly was an open invitation to relate anything new about anything including the Union Furthermore there is testimony which I must credit despite its belated discovery that about the same time that Simon had his nighttime encounter with Richard Gonyea Simon as well as Kimmey interrogated the same Edwin James Dunham who early in July had been interrogated by Gero and who had been told by Gero that the Burlington plant might be converted into a substation On the present occasion Simon either in his own office or Gero s asked Dunham how he felt about the Ullion and when Dunham replied that he did not know Simon expressed the hope that he would not believe everything he was told by the union men and that he would not do something he would be sorry for later In Kimmey s interrogation of Dunham-it took place in Gero s office-Kimmey asked Dunham if he knew who was pushing the talk about the Union and when Dunham replied that he did not know Kimmey remarked that he should not believe everything that he was told by the union men and anything they might promise and also expressed the hope that Dunham wouldn t do anything foolish (Emphasis supplied ) Simon and Kunmey denied altogether having these conversations with Dunham but I do not credit their denials which are in significant contrast to the readiness with which they remembered any conversations with employees prior to the issuance of the do s and don is As in the case of Gero s interrogation of Bessette and Richard Gonyea the timing of the dual interrogation of Dunham by Simon and Kimmey is disputed Dunham s testimony on direct and redirect examination would indicate that the dual interrogation took place not earlier than about August 6 and I accept this testimony despite the fact that on cross examination he could not be positive that it occurred in August rather than in July Dunham who was a relief driver explained that he would be able to pinpoint the date if he were shown a schedule of the 1965 vacations Counsel for the Respondent undertook to establish the period of Dunham s vacation as part of the Respondents case in chief but never thereafter reverted to the subject It is a reasonable assumption that the cause of this reticence was the fact that the vacation schedule if produced would have shown that Dunham was ineerogated by Simon and Kimmey after the issuance of the dos and don is It is reasonable also to assume that Dunham who had already been interrogated once before would not have been interrogated again until the election was in prospect 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the day of the election approached Simon addressed two circular letters to the employees as part of his efforts to induce them to vote against the Union In the first letter which is dated August 26 1965 Simon opened by declaring I have always been very open frank and honest with each one pf you and I intend to continue that way He then proceeded to explain what he conceived to be the advantages of dealing directly with the Company as opposed to the disadvantages of union organi zation The contrast was developed in the following three paragraphs of the letter Many of you have been employed by the Burlington Rendering Company for a number of years To the extent that circumstances p,rmitted we have always tried to provide steady employment and fair wages and working conditions In the Burlington Vermont area where we work and live our wages and fringe benefits compare very favorably with those enjoyed by other workers in our area In my opinion on the average they are equal to or better than wages and fringe benefits enjoyed by our neighbors In my opinion our pension program which is entirely paid for by the Company and which has been in existence for over 40 years is one of the finest and soundest pension programs in industry Moreover we are proud of our record of having provided regular employment for our employees (Emphasis supplied ) We are in a business which is very competitive We are in a constant battle with our competitors and this is not easy We must be on our toes to compete and get our share of business It is only business which provides jobs and our business comes from many sources both Government and non Government This is not the steel industry or the automobile industry or the electronics industry We are always on the alert to improve our business and at the same time to be fair to our employees Now what about the Union9 Is it really interested in you or the dues which you will have to pays Do you really know what its record is ? Unions may boast about many things but they cannot guarantee you anything-they may only bargain It is easy to promise Do not be misled by promises Unions which are unable to fulfill their promises through bargaining frequently call strikes Are you aware of the impact a strike could have on you9 A Union does not produce the business to pay you wages or fringe benefits In the penultimate paragraph of his letter Simon declared as follows What you do is up to you Under the law an employer may not promise you anything to influence your vote and may not threaten you for this purpose I would not do this anyway because I respect you and the law too much. In the second letter which was dated September 9 after reiterating that the wages and fringe benefits of the employees compared favorably with those enjoyed by their neighbors in the area Simon proceeded to compare the wages and fringe benefits at the Burlington plant with those at its Springfield Massachusetts plant where the employees were represented by the Union Wages he proceeded to show were increased by 621h cents an hour in the Burlington plant in the period from Decem ber 2 1957 to November 2 1964 while at the Springfield plant in the period from March 31 1958 to September 9 1963 wages were increased only 401 cents an hour Simon did not state whether wages at the Springfield plant had been higher in the previous years nor did he state whether there had been a wage increase at Springfield in the period of more than 2 years that had elapsed since the last wage increase there Simon did however go on to compare the two plants in terms of Blue Cross Blue Shield vacations sickness and accident plan and time off because of a death in the family and conceded remarkably enough that these fringe benefits under its last contract with the Union at Springfield were actually better than those to be found at Burlington When he finally reached the subject of pensions, Simon merely stated that the employees at Burlington had had a pension program for over 48 years 7 without saying anything about pensions at Springfield Having completed his comparisons between the two plants Simon reiterated in almost the same words that he has used in his previous letter Please remember that under the law I may not promise you anything to influence your vote nor may I threaten you for this purpose Then he invited the employees to review the record of what the Company has done and what the employees have done without a union Despite his assurance to the employees that he had always been open frank and honest with them Simon was forced to admit that the statement made in his letter of August 26 that their wages and fringe benefits were equal to or better than those 7It remains wholly unexplained why Simon extended the duration of the pension system at Burlington from 40 to 48 years although only 2 weeks had elapsed since his prior letter CONSOLIDATED RENDERING CO 9 enjoyed by their neighbors was not true and that he had known it was not true for a considerable length of tune After the Union lost the election however Simon took steps to narrow the gap between the wages and fringe benefits obtaining in the Burlington plant and the other plants in the same area On November 25 he announced increases in wages and improvements in fringe benefits which would be made effective at Burlington on November 29 The announcement included a 12-cent an hour increase in wage rates for employees in all classifications two additional holidays (Washington s Birthday and Veterans Day) improvements in the paid vacations allowed and in payments during periods of disability These increased benefits were put into effect of course without prior notification to or consultation with the Union since it had lost the election B The composition of the bargaining unit Admittedly the bargaining unit in this case consists of all the production and maintenance employees of the Respondent employed at its Burlington plant and branch collection stations at Rutland Vermont St Johnsbury Vermont Potsdam New York and Peru New York exclusive of office clerical employees professional employees salesmen master mechanics guards, and all supervisors as defined in Section 2 (11) of the Act Counsel for the General Counsel and for the Respondent stipulated at the hearing that on August 2 the date of the receipt by the Respondent of the Union s letter requesting recognition there were at least 26 employees in the bargaining unit 8 Counsel were in disagreement however concerning the inclusion in the bargaining unit of four other employees Winton Gelinas Richard Gonyea Albert J Rabidoux and Harold S Rayta The latter must be excluded however because on the basis of a stipulation entered into by counsel for the Respondent and the Union the Regional Director sustained the challenge to his ballot in the election and his decision was affirmed by the Board Moreover there is nothing to show that the duties of Rayta were any different in the month of August than they had been in the month of September Furthermore the record shows affirmatively that Rayta as a rule spent approximately 60 percent of his time in plant protection duties The Board has held that employees who perform both guard and nonguard duties may not be repre sented by a nonguard unions Consequently Rayta must be excluded from the bargaining unit Winton Gelman and Albert J Rabidoux bear respectively the titles of fertilizer foreman and hide house foreman and counsel for the Respondent contends that they are supervisory employees within the meaning of Section 2(11) of the Act But titles are not in themselves decisive The evidence shows that they are in fact working foremen-sometimes called leadmen-who while they sometimes direct other employees in their work exercise an authority of a merely routine nature rather than an authority that requires the use of independent judgment within the meaning of Section 2(11) of the Act The men who work with or under Gelmas and Rabidoux are old hands who as a rule know what to do without being told Neither Gelinas nor Rabidoux exercise any of the high prerogatives of management such as the right to hire or fire both work for the most part along with their men 10 who normally do not exceed three both punch timeclocks and are paid on an hourly basis although somewhat more than the men under them and both work under the close supervision of Gero or of his assistant Emile Doucette Gelinas who seems to be a somewhat stronger character than Rabidoux has exercised on occasion a slightly greater degree of authority than the latter but this authority has been exer cised with the knowledge and approval of Gero 11 One of the most significant and 8These 26 employees -,A ere Fred E Barnes Henry W Barnes Roy J Beeshaw Joseph L Bessette Howard T Blair Walter R Brown Robert A Byrne Eugene H Coleman Edwin J Dunham Adrian A Fortier Charles J Francis Ralph Gonyea Arnold Gover Steve P Grabowski Edwin J Hathaway John Johnson Jr Harold L Maskell Texas H McLeod Henry D Mears Glendon E Randall Jr Francis R Sumner Earnest Tahier James Vodron Clarence N Whitehouse Frank C Whitehouse and Rudolph L Wood Q See International Furniture Company 119 NLRB 1462 Watchmanstors Inc 128 NLRB 903 Potter Electric Signal Company 149 NLRB 373 10 Rabidoux testified indeed that he spent 90 percent of his time in physical labor n Gelinas who happened to know about a man who could drive a payloader once recom mended to Gero that he be hired obviously any employees could have done the same Gelinas also once complained about an employee who would not go back on the payloader when when he instructed him to do so but it was Gero who fired the rebellious employee Gelinas would sometimes give permission to a sick employee to go home but when he did he would report this to Gero 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reliable tests of whether a given employee is really part of the managerial hierarchy is his own estimate of himself Both Gelmas and Rabidoux indicated that they did not regard themselves as part of management by signing union authorization cards An even more significant and reliable test of whether a given employee is really part of management is whether the managerial hierarchy regards him as one of them selves and Simon made it quite manifest that he did not regard Gelinas and Rabidoux as part of the managerial hierarchy for he failed to invite them to the meeting of supervisors on August 2 at which he distributed the do s and don is At this meeting there were present only Simon himself Gero Kimmey Doucette and Lionel Labonte the chief clerk Just before he enumerated those who were present at the August 2 meeting, Simon was asked did you have all your supervisors there " and his answer to the question was I did I find that Gehnas and Rabidoux are not supervisory employees within the meaning of Section 2(11) of the Act and that they should be included in the bargaining unit As for Richard Gonyea the reason advanced for excluding him is that he was hired only as a temporary employee This contention r.,sts on the testimony of Gero to the effect that when he hired Richard Gonyea he told the latter that he could not put him on as a permanent laborer due to the fact that the work was seasonal Gero also testified that the season would end right around the middle of August The record shows however that Richard Gonyea quit of his own accord on September 13 which would be almost a month after the end of the busy season Gero also testified that he hired Joseph L Bessette as a temporary employee but Bessette was still working for the Respondent at the time of the hearing and there is not even any contention that he should be excluded from the bargaining unit Richard Gonyea himself denied that when he was hired Gero told him that he was merely being hired as a temporary employee and I credit Richard Gonyea s denial Indeed he testified that when he was hired he was told by Gero that he was being hired for the fertilizer department to be trained as a payloaded operator I find therefore that Richard Gonyea was hired as a regular employee and that he should be included in the bargaining unit Despite his stipulation that James Vodron and Henry Wilson Barnes be included in the bargaining unit counsel for the Respondent contended later on in the hearing that both of them should be excluded from the bargaining unit In the case of Vodron this contention was based on the fact that on his union authorization card he mdi cated that he was employed as manager Actually Vodron was a collector who worked out of the Peru branch of the Respondent like all the other collectors, he drove a truck and collected scrap bones and meats he mistakenly described himself as a manager" because he kept records of his collections He was the only employee in the Peru branch and therefore he had only himself to manage It is obvious that Vodron is not a supervisor within the meaning of the Act indeed the contention to the contrary must be regarded as frivolous As for Henry Wilson Barnes he spent, as a rule a little more than half of the hours that he worked on the tank floor which is part of the Respondents production work and the remainder of his time as a watchman In this latter capacity he watched out for fires and trespassers whom he has on occasion barred from the plant Like Rata he must be regarded as a guard and must be excluded from the bargaining unit In view of all the evidence I conclude that on July 30 when the Union requested recognition and on August 2 when the Respondent received the Union s request for recognition as well as on August 4 when the Respondent rejected the Union s request the appropriate bargaining unit consisted of 28 employees C The Union s authorization cards as proof of majority representation The date as of which the question whether the Union represented the employees in the appropriate bargaining unit is to be determined is the date when the Respondent received its request for recognition rather than the date when the request was made This rule is well established 12 Moreover as the re quest of the Union for recognition was in the present case a continuing one it would be sufficient for the Union to establish a majority as of August 4 the date when the Respondent denied its request for recognition 13 v See Nash San Diego Inc 90 NLRB 86 87-88 Editorial El Imparcial Inc 92 NLRB 1795 1802 Spitzer Motor Sales Inc 102 NLRB 437 452 Allegheny Pepsi Cola Bottling Company 134 NLRB 388 389 Winn Dimie Stores Inc 153 NLRB 273 13 See American Compressed Steel Corporation 146 NLRB 1463 1470 affd sub nom Local 152 Teamsters v N L R B 343 F 2d 307 310 (C A D C) Henry Spen ct Company Inc 150 NLRB 138 CONSOLIDATED TENDERING CO 11 There are in evidence 22 signed union authorization cards which bear dates between June 30 and August 2 Sixteen of the signers or more than a majority of the employ ees in the bargaining unit of 28 were witnesses at the hearing and verified both their signatures and the dates on which they had signed their cards except Clarence Whitehouse who absentmindedly put the date of his birthday on his card Although he no longer had any personal recollection concerning the date when he had signed his card it must have been signed not later than August 2 for by the following day Texas McLeod who had obtained the card had turned it over to Weston the union organizer The union authorization cards of the six employees who were not wit nesses at the hearing were verified by the testimony of Weston Rabidoux and McLeod who had obtained the cards from them and who had witnessed their signatures 14 The card signers who did not themselves testify at the hearing are Edmund ( Eddie ) Hathaway Charles ( Charlie ) Francis Frank Whitehouse Walter Brown Eugene ( Gene ) Coleman and Rudolph Wood There is no evidence impugning either the dates or the signatures on the cards of four last named employ ees but there is some confusion in the evidence concerning the dating of the cards of Hathaway and Francis Texas McLeod who obtained the signatures to the cards of Hathaway and Francis at first testified that he obtained the signatures to their cards at the same time that he obtained the signature to the card of Clarence Whitehouse who is the brother in law of Francis As Clarence Whitehouse erroneously put the date of his birthday on his card the date of course could not establish the dating of the cards of Hathaway and Francis and as McLeod contradicted his testimony that he had obtained the three cards at the same time and could not even be positive that he obtained the cards in July rather than August McLeod s testimony did noth mg to dispel the confusion However since Weston the union organizer testified positively and clearly that he received the cards of Clarence Whitehouse Hathaway and Francis from McLeod on August 3 it is apparent that they must have signed their cards by August 2 Indeed the card of Francis is dated July 31 and the card of Hathaway is dated August 2 and in the absence of evidence to the contrary it is fair to assume that they were signed on the dates they bear Ralph Gonyea seemed to be unsure that the date on his card was in his own handwriting and he was therefore not certain that he had signed the card on the date that it bore namely July 28 But there is no evidence that he did not sign the card on this date and it is reasonable to assume as in the cases of Whitehouse Hathaway and Francis that the card was signed on the date it bears In any event Ralph Gonyea s card must have been signed prior to August 3 for it was turned over to the Regional Office of the Board on that date and bears the stamp of the office on that date is Although Henry Wilson Barnes executed a union authorization card on August 1 his card cannot be counted toward the Union s majority because of his exclusion from the bargaining unit The Respondent made a determined attempt at the hearing to show that signatures to many of the union authorization cards had been obtained under various misrepre sentations There is no such evidence at all with respect to 13 of the 22 union authon zation cards in evidence Seven of the signers of these 13 cards were witnesses at the hearing and no evidence whatsoever was adduced during their cross -examinations that would tend to show that the signatures to their cards had been obtained by misrepresentations of any character The other six signatories were not called as witnesses by the General Counsel but although counsel for the Respondent was making a determined attempt to establish that the signatures to most of the cards had been obtained by misrepresentation he also failed to call them as witnesses in an effort to prove that misrepresentations were made to them He also did not avail himself of the opportunity to cross-examine on this subject two of the three mdi viduals who had solicited the signatures of the employees who were not themselves witnesses at the hearing He only cross-examined Rabidoux with respect to what he told Frank Whitehouse when he induced the latter to sign a union authorization card but he failed to elicit any evidence of misrepresentation I am aware that the employees of the Respondent in the present case are neither very literate nor sophisticated The literacy of some of them is so low that they had 14 This has long been recognized as a proper method of verifying the signing of union authorization cards See National Licorice Company v N L R B 309 II S 350 N L R B v Blackstone Manufacturing Co 123 F 2d 633 634 (C A 2) N L R B v Howell Chevrolet Company 204 F 2d 79 85-86 (C A 9) N L R B v Howard-Cooper Corporation 259 F 2d 558 560 (C A 9) V L R B v I Taitei & Son 261 F 2d 1 (C A 7) NLRB v Economy Food Center Inc 333 F 2d 468 471 (C A 7) Colson Corp v V L R B 347 F2d 128 134 (CA 8) 15 See Aero Corporation 149 NLRB 1283 1291 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to have their wives fill out the authorization cards which they signed But the benefits of the National Labor Relations Act are not confined to high school and college graduates and there is nothing to show that the signatories in the present case did not know what they were doing when they signed the union authorization cards Consid enng the evidence as a whole I am convinced that an ample majority of the employees in the present case executed their authorization cards without any material misrepre sentation being made to them Some of the signatories to be sure claimed that state ments were made to them which if believed might constitute some evidence of misrepresentation But such evidence must be clear and convincing and should be closely scrutinized 16 Any individual whether an employee or a businessman who asserts that an authorization which he has given in writing was induced by misrepre sentation has two strikes on him already the first strike being the writing and the second being his signature thereto Claims of misrepresentation are particularly vulnerable in a case such as the present in which benefits have subsequently been conferred on the signatories Having obtained these benefits without having to pay dues to the Union the signatories begin to have afterthoughts, and begin to convert every rumor that was current during the union organizing campaign into the sub stance of actual representations made to them to induce them to sign their union authorization cards although sometimes they are unable to remember even who it was who solicited them to do so I shall now proceed to examine in turn each of the union authorization cards about which there is any testimony at all that it was secured by misrepresentation Joseph L Bessette who signed his authorization card on July 27 at the solicitation of Rabidoux testified first as follows Q Did he (Rabidoux) tell you a majority had signed the card when he gave it to you9 The WITNESS I wouldn t swear by it no Q He may have told you that9 A He could have yah This hardly amounts to positive testimony that Rabidoux represented to Bessette that a majority of the employees had already signed up In fact Bessette ended by making it clear that he did not really remember whether it was Rabidoux who made the statement to him Thus he testified further I recall somebody telling me about it but I don t remember the name then I heard the boys talking about it yes Asked directly again whether Rabidoux had told him that Bessette replied I think he did yes It is evident that the testimony of Bessette is too vague and contradictory to be worth anything and I sustain the validity of his card Ernest Tahier signed his union authorization card on August 2 at the solicitation of Arnold Gover He kept the card given to him by Gover for 3 days before signing it As a witness at the hearing he testified during his cross examination by counsel for the Respondent, in response to a leading question that Gover told him that if he did not sign the card he would have to pay $35 and 2 percent of his wages for a period of 6 months if the union got in Tahier also testified that he had heard that if the Union won all the employees would have to join the Union but when it was called to his attention that no one was interested in what he had heard he changed his testimony to assert that Gover told him that During his redirect exam mation by counsel for the General Counsel when he was asked to try to remember all of the things which Gover had said to him Tahier testified All he well we talked about the union and the benefits and so on and he said that every everyone in the plant had already signed the card so I well so he said why don t you take one so you know that we d have it to get the majority to hold the election Asked to explain this obviously contradictory testimony Tahier only rendered confusion worse confounded as follows TRIAL EXAMINER Just a moment Just a moment please I don t quite under stand one of your answers Did you say that Gover told you that everybody in the plant had already signed the card but if you signed the card you would get a majority to hold an election WITNESS No sir that almost everyone in there counted the plant [sic] had already signed the cards TRIAL EXAMINER He used the word almost? WITNESS Yup almost everyone TRIAL EXAMINER What else did he say? Did he say anything about that if you signed the card you would get a majority to hold an election? 16 See Jones On Evidence if 224 281 and 467 CONSOLIDATED RENDERING CO 13 The WITNEss No sir he said that, that they needed I forget now how many more to set up the majority to hold the election TRIAL EXAMINER He said that you needed some more to get a majority is that it? The Wzv ss He said to hold an election. TRIAL EXAMINER Yes did he say that he needed a few more to get a majority to hold a The WITNESS Yes sir [Emphasis supplied ] Called as a witness by counsel for the General Counsel Gover testified that he had several discussions with Tahier preceding the signing by the latter of the union authorization card but that he merely held out to him the possibility of getting as good a contract as the one at the Respondent's Springfield plant and merely told him that if he signed the union authorization card it would protect him against being fired Gover also specifically denied that he had said anythm to Tahier about union initiation fees or that he would have to pay 2 percent of his wages I credit Gover s testimony including his denial Indeed, Tahier s testimony is in itself too contradictory and inherently incredible to be worthy of belief Moreover even if Gover told Tahier that a majority of the employees had already signed union authon zation cards it would have been nothing but the truth , for by August 2 which is the date on which Tahier signed his union authorization card a majority of the employees had in fact signed union authorization cards The truth could not constitute of course, a misrepresentation I sustain the validity of Tahier s union authorization card Adrian A Fortier who is an automobile mechanic at the Burlington plant , signed on July 20 a union authorization card given to him by Gene Coleman his brother in law who himself signed a union authorization card the following day Fortier like Tahier testified to multiple representations to induce him to sign Asked during his cross-examination whether Coleman had told him `that all the employees had signed Fortier testified He said the greater share of them had If by this Fortier meant to imply that Coleman had told him that a majority of the employees already had signed union authorization cards Coleman s representation would not be true since on July 20 a majority of the employees had not yet done so But there is really no way of knowing just what Fortier who was not very articulate meant by the greater share or "a greater share Fortier also testified, moreover that Coleman told him that his card `would be used for a National Labor Relations Board election which would hardly be entirely consistent with the assumption that the Union pos sessed a majority already So far as the representation itself is concerned the Board has held that a union authorization card is not invalid unless the signer has been told that it will be used only for the purpose of securing an election 11 There would seem to be no basis therefore for holding Fortier s card invalid either on the ground that it had been represented to him that a majority had signed already or on the ground that he had been told that the card would be used to get a Board election It has also been held judicially that the union is not bound by the Unauthorized rep1esen tations of solicitors to union authorization cards i8 and there, is nothing to show such authorization here Steve P Grabowski who is a collector working out of the Rutland branch of the Respondent and who had been employed by the Respondent for over 21 years signed his union authorization card on June 30 He obtained the card from Ralph Wenzel a person whom he described as the meat manager in the A & P store in Vergennes Vermont In response to leading questions during his crops -examination Grabowski testified that Wenzel told him that the purpose of the card was to secure a Board election But during both his cross-examination and redirect examination whenever Grabowski was asked general questions about his conversation with Wenzel he failed to mention any conversation about the use of his card in the Board election and whenever he was asked to state whether such conversation was all the conversation he had had with Wenzel he replied in the affirmative I regard Grabow ski s testimony with respect to his conversation with Wenzel as, worthless In any event even if I could accept his testimony in this respect , it was not to the effect that the only purpose of the card was to secure a Board election It would also seem to be clear that Grabowski s union authorization card is not invalid because he 17 The Board has so held with court approval See N L R B v Winn Dixie Stores 341 F2d 750 754 (CA 6) Cumberland Shoe Corp 351 F2d 917 (CA 6) NLRB v Jas E Matthews c6 Co 354 F 2d 432 436-437 N.L R B v Gotham Shoe Mfg Co 359 F2d 684 (CA 2) za See Jas E Matthews d Co v NLRB supra 437 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described Wenzel as a meat manager This title alone is insufficient proof that Wenzel was in fact a supervisor In any event, while the Board has held invalid union authorization cards solicited by supervisors I am not aware that this doctrine has ever been extended to the supervisors of other employers Glendon E Randall Jr Richard L Gonyea and Adrian A Fortier (who has already been mentioned in other connections) all testified seemingly that the person who solicited their union authorization cards told them either that the card would not be seen by anybody or would not be shown to anybody But they gave this testi mony in response to leading questions by counsel for the Respondent and only after some apparent he station and prompting is I find it impossible to believe that the witnesses meant literally that their cards would not be shown to anybody else Every single one of the union authorization cards was headed Authorization for Representation under the National Labor Relations Act, and expressly authorized the Union to represent the signatory in collective bargaining with the Employer Only a moronic employee could believe that he had received a pledge that the signing of his card would or could be kept a secret from the whole world A clue to what the four employees must actually have been told is supplied by the authorization card of Vodron whose card differed in form from all the other cards in bearing upon its face the words This card confidential Vodron himself testified that when he signed his card he was under the impression that it was all confidential It is well known that it is the policy of labor unions to keep their authorization cards confidential and that they are loath to show such cards to employers Thus when labor unions offer to submit authorization cards to employers they usually request that they be examined by neutral third persons I am convinced therefore that if the four employees in question received any assurances it was simply that their cards would be kept confidential It was this long four syllable word that they must have converted into the representation that their cards would not be seen by anybody or shown to anybody I perceive no valid reason for rejecting the union authorization cards signed by them Michael J Weston the union organizer in the present case testified that the rater national waived its usual initiation fees of $40 at Burlington due to the fact that it was a new group However the waiver of the initiation fee was not embodied in the union authorization cards themselves and not a single one of the signers of these cards except Tahier whose testimony I do not credit, so much as mentioned the subject of the waiver of the initiation fee in his testimony Presumably the waiver was communicated to the employees but this fact alone would seem to furnish no ground for invalidating the union authorization cards The present case is quite distin guishable on its facts from those on which the decision appears to have been predi cated in N L R B v Gorbea Perez & Morrell 328 F 2d 679 886 (C A 1) In the view of the court in Gorbea the vice of the waiver appears to have been that it was phony since the union did not charge initiation fees in Puerto Rico In other circum stances the waiver of initiation fees has been judicially approved as a legitimate union promotional technique 20 D Concluding findings and recommendations As the Union had signed up a decisive majority of the Burlington employees the Respondent was bound to recognize the Union and bargain with it, unless it actually had a good faith doubt concerning its representative capacity In its letter to the Union the Respondent asserted such a doubt, and declined the Union s proffered card check, insisting instead upon a Board-conducted election The Respondents w Thus Randall when first asked whether the statement had been made to him that these cards would never be seen by anybody but the union representative replied I believe that in my understanding of it that these cards were to be flied. Obviously if the cards were to be filed they could not be kept secret from all the world Barnes when first asked whether it was stated to him that no one else would ever see his card replied No Well that was the general idea (Emphasis supplied ) But a general idea cannot be a specific representation Although Richard Gonyea and Fortier did give positive answers immediately the former could not remember whether Rabidoux who solicited his card was the one who told him that his card would not be shown to anybody This of course renders Richard Gonyea s testimony valueless m See N L R B v Dahlstrom Metallio Door Company 112 F 2d 756 758 (C A 2) N L R B v I Taitel 4 Son 261 F 2d 1 4 (C A 7) cert denied 359 U S 944 Amalgamated Clothing Workers of America v N.L R B 845 F 2d 264 267-268 (C A 2) affg Edro Corporation 147 NLRB 1167 CONSOLIDATED RENDERING CO. 15 alleged reasons for adopting this skeptical and negative attitude was that a card check could not reveal the circumstances under which the union authorization cards had been obtained. It would seem clear that in advancing this reason the Respondent was really attacking the card-check system itself..It would seem equally clear, however, that whatever the merits or demerits of the system, it is a recognized and lawful method of determining questions of union representation, and that an employer may not insist, as a matter of right, upon a Board-conducted election?' It was, of course, open to the Respondent to attempt to demonstrate that the union authorization cards had been obtained in the present case under circumstances that deprived them of validity, and such an attempt was made at the hearing but without success. Having asserted that the union authorization cards were tainted, the Respondent was bound to prove this by competent evidence, and also assumed the risk of failure.22 If the Respondent had really been interested in determining the validity of the union authorization cards rather in making a debating point, it would at least have taken the first step in this direction by accepting the Union's offer to check the signatures to the cards, and thus to verify at least their execution Instead, the Respondent rejected them out-of-hand. The evidence shows that the Respondent's real reason for doing so was that its representatives knew perfectly well from their talks with the employees that their sentiments in favor of the Union were overwhelming. The independent knowledge thus obtained by them was in itself sufficient to demonstrate Simon's bad faith in refusing to, deal with the Union, quite apart from the unfair labor practices which had been committed. The situation was indeed not much different from that which existed in Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9), the principle of which has recently been reaffirmed by the Board in Aaron Brothers of California, 158 NLRB 1077. Simon's true motive for refusing to recognize the Union was, as he was compelled to admit, simply that he wished to do everything that he could to keep the Union out of the Burlington plant. He added the qualification, to be sure, that he wished to do only what he legally could do to accomplish this end. But the evidence belies the qualification, for it shows that in fact he and his subordinates were unable to restrain themselves from committing unfair labor practices. Even if the Respondent's good faith is judged, moreover, solely in terms of the unfair labor practices committed by its representatives up to the time that they refused to recognize the Union, and made an election necessary, it is apparent that these unfair labor practices were sufficient in proximity and gravity to justify the rejection of the plea of good faith, despite the fact that they were only two in number up to the time that the Union requested recognition. The interrogation of Gover by Kimmey and of Dunham by Gero in July involved far more than simple ques- tioning. In both cases there were threats of reprisal, and, in the case of the interro- gation of Gover, there was also a promise of benefit-a covert offer of a raise if Gover would abandon his union activity. It must not be forgotten, furthermore, that Gover was one of the ringleaders of the union movement, and that his interrogation was planned. In the end Simon himself joined in the unfair labor practices. His plea of good-faith doubt must, therefore, be rejected. To be sure, the Respondent consented to an election but this in itself no more demonstrated its good faith 23 than the Union's petition for the election and its loss of the election 24 demonstrated that it had never secured the adherence of a majority of the Respondent's employees.25 However, before the election may be set aside, it must be shown that the Respond- ent committed unfair labor practices between the date of filing of the petition for the election and the date of holding of the election.26 Under the doctrine of Bernel "See United Mine Workers V. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72, foot- note 8, and other cases there cited ; N.L R B. v. Elliott-Williams Co , 345 F.2d 460, 464 , Colson Corp. v. N.L.R.B., 347 F.2d 128, 135; N.L R B. V. Jos. E. Matthews & Co., supra, 436 22 See Jas. E. Matthews & Co. v. N.L.R.B., supra, 439, and other authorities there cited. z1 See Taylor-O'Brien Corporation, 112 NLRB 1 ; Traders Oil Company of Houston, 119 NLRB 746, 750, enfd. 263 F.2d 835 (C A. 5) ; Lake Butler Apparel Company, 158 NLRB 863. u In fact, in view of the finding that Henry Wilson Barnes was a guard, it can now be said to be doubtful that the Union did lose the election If his ballot had been challenged, the outcome of the election might well have been different. z See Rea Construction Company , 137 NLRB 1769, 1770; Irving Air Chute Company, Inc., 149 NLRB 627, 628, and earlier cases there cited. 20 This is the critical period now established by Goodyear Tire and Rubber Company, 138 NLRB 453. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foam Products Co Inc 146 NLRB 1277 a union is no longer bound to choose between filing unfair labor practice charges and going into an election and a charge of violating Section 8(a)(5) of the Act may be entertained and a bargaining order may be entered notwithstanding the union s loss of the election The only condition to the granting of such relief is that the union must have filed meritorious objections to the conduct of the election in the representation case 27 Counsel for the Respondent contends that even if the issues of credibility should be resolved against it and it should be held that unfair labor practices were coin mitted during the critical preelection period the acts involved were too isolated to have had any real impact on the outcome of the election There have been no doubt bolder and more flagrant violators of the Act than the Respondent s representatives Their activities were indeed furtive and hypocritical but they were neither unplanned with the possible exception of Simon s nighttime conversation with Ralph Gonyea nor were they negligible either in nature or effect In Simons midnight conversation with Ralph Gonyea there was both a threat of reprisal-Simon s statement that the Company s health insurance might be dropped- and a promise of benefit-the promise to ameliorate his situation and even to get him a better job These were undoubtedly unfair labor practices whoever first mentioned the subject of the Union for the threat and the promises were made in the context of a pending union election and the subject of the Union entered into the discussion undoubtedly I do not find however that by bringing up in the discussion the names of Gover McLeod and Rabidoux that Simon was attempting to create in Ralph Gonyea s mind an impression of surveillance although this is charged In the first place while the names of these three employees were mentioned the precise con nection in which this occurred is none too clear In the second place it seems to me that it must have been pretty well known to all the employees that Simon knew not only who the union ringleaders were but also who were for and against the Union in general The impact of Simon s conversation with Ralph Gonyea was not lessened greatly by virtue of the fact that Simon in this instance may merely have been taking advan tage of an opportunity In the case of Gero s interrogation of Bessette and Richard Gonyea the opportunity clearly was made While interrogation is not unlawful per se and must be considered in the light of the circumstances of each case the interrogations in the present case must be regarded as coercive notwithstanding the fact that Gero did not directly threaten the two employees with reprisals of promise them benefits Both Bessette and Richard Gonyea were summoned to Gero s office the seat of authority" and asked to state their feelings about the Union although an election was pending for the very purpose of ascertaining how the employees felt about the Union Gero no longer even had the excuse that the Respondent might be presented with a union demand for recognition Since there had already been inter rogations in which threats of reprisal had been made explicit assurances against such reprisals were all the more necessary but none were forthcoming The assurances were also necessary because Bessette and Richard Gonyea were recently hired employees who would be less sure of themselves than older employees Indeed this is one of the circumstances that makes their selection for interrogation reprehensible The double interrogation of Dunham by Kimmey and Simon after the Union had petitioned for an election was also an unfair labor practice for this was not merely an attempt to persuade Dunham to vote against the Union and hence protected as an exercise of the right to free speech The double interrogation was in fact a resort to veiled threats To tell an employee who had already been involved in an interro gation during which plant closure had been threatened that he should not do anything for which he might be sorry later or that he should not do anything foolish is clearly menacing It is true that to arrive at this conclusion it is perhaps necessary to consider Dun hams interrogation during the critical preelection period in the light of the Respond ent s unfair labor practices prior to the commencement of this period But Y do not believe that the existing authorities would prevent this Indeed they would seem to favor such an approach It is well settled that events that have occurred prior to the running of the 6 month statute of limitations under the Act may be utilized to shed 27 See Irving Aar Chute Company Inc 149 NLRB 627 and Koplin Bros Co Inc 149 NLRB 1378 29 As the court observed in NLR B v M cE B . eadwear Co 349 F 2d 170 172 (C A 4) Whenever a high executive calls production line workers into his office and questions them about their union activity in an atmosphere of unnatural formality there is inevitably an implication of coercion CONSOLIDATED RENDERING CO. 17 light on the true character of events during the period 2s The policy considerations underlying this doctrine would seem to be equally applicable to the consideration of events during the critical preelection period . This seems to have been recognized in at least one case.30 Considered in their proper setting, it seems clear that the unlawful acts occurring during the critical preelection period were not "isolated" but represented a contin- uation of the unlawful acts before this period began . That they had an impact upon the conduct of the election and were responsible for its result cannot reasonably be doubted. The Burlington plant is a very small one, and there were only 26 eligible voters in the election. In a plant so small the alienation of the loyalties of even a single prounion emloyee could affect the result of the election. In fact, unlawful approaches were made to at least four employees during the critical preelection period, and this is the exact number of votes by which the Union lost the election. In support of his contention that the acts of the Respondent's representatives should be treated as "isolated," counsel for the Respondent cites two cases, Middle- town Manufacturing Company, Inc., 144 NLRB 234, and West Texas Equipment Company, 142 NLRB 1358. In the Middletown case, the Trial Examiner found that the respondent had not engaged in any unfair labor practices, and what the Trial Examiner said about the several acts of alleged interrogation involved in the case, which was that they were too isolated to warrant a finding of unfair labor practices, or of interference with the election, was just a dictum.31 In the West Texas Equipment case, which is the case also invoked by the Regional Director to justify his refusal to set the election aside, the Board refused to do so primarily because the incidents involved were too remote, having occurred almost 4 months prior to the election. Although the Board did speak of the acts involved as "isolated and insubstantial," this was by way of explaining that they were not really unfair labor practices. The contentions of counsel for the Respondent appear to be against the present trend of Board decision in handling election disputes. There was a time-and a time not so long ago-when the Board declared that elections would be set aside only for glaring misconduct, and any conduct falling short of this standard would be dismissed as "isolated." 32 Although cases embodying this policy do not appear to have been formally overruled, it does not appear to be the policy which is followed by the Board today. Elections have been set aside by the Board even when a few employees have been subjected to coercive interrogation or threats of reprisal, even when veiled, and the plants involved in the election have had far fewer employees than the Burlington plant.33 Of particular relevance is Clark Printing Company, Inc., 146 NLRB 121, a case involving the questioning of employees as to how they intended ai See Local Lodge No 1424, Machinists (Bryan Mfg. Co.) v. N.L.R. B., 362 U.S. 411, 416-417. 30 See Krambo Food Stores, Inc., 120 NLRB 1391. 31 This almost invariably turns out to be the case when an act is characterized as "isolated " I doubt that the concept of the isolated act has any legitimate place in the law of unfair labor practices. If an act is truly an unfair labor practice, it would seem that it should be treated as such even though no others have been committed . The Board has, of course , discretion in fashioning remedies to redress unfair labor practices but there would seem to be nothing in the Act which would give it a dispensing power and enable it to determine that an act that was in fact an unfair labor practice was not an unfair labor practice . However , the concept of the isolated act would seem to have a legitimate role to play in the law governing representation proceedings . The Board has a wide dis- cretion in deciding whether an election may be set aside, and may choose to consider a particular unfair labor practice as too isolated to Justify Intervention Indeed, the Board may set aside an election although no unfair labor practice has been committed . See, for instance , General Shoe Corporation, 77 NLRB 124 ; Metropolitan Life Insurance Company, 90 NLRB 935, 938-939; Foreman & Clark, Inc., 105 NLRB 333, Pnfd. 215 F 2d 396 (C A. 9). 32 This policy was perhaps most emphatically expressed by the Trial Examiner in Threads-Incorporated, 124 NLRB 968 , 981. "The Board has held that a secret ballot elec- tion, held under Government supervision and with safeguards developed through the years, should not lightly be set aside , and that the Board will exercise that power Spar- ingly, only in case of 'excessive acts' and 'conduct so glaring that it is almost cerrain to have impaired employees ' freedom of choice I " 33 See such cases as Lyon, Incorporated, 145 NLRB 54 ; Hnery I. Siegel Co., 148 NLRB 1192; Waste King-Universal Products, 148 NLRB 1462; Louisiana Manufacturing Com- pany, 152 NLRB 1301. 264-188-67-vol 161-3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to vote in an election In this case the Board declared We are reluctant to dismiss as trivial any interrogation of employees as to how they intended to vote in a pending representation election Such conduct tends to undermine the very purpose of a Board conducted election i e the opportunity of an employee to cast a secret ballot without the necessity of publicly declaring his position toward a proposed bargaining representative Moreover in Dal Tex Optical Co Inc 137 NLRB 1782 1786-87 the Board declared Conduct violative of Section 8(a)(1) is a fortiori conduct which inter feres with the exercise of a free and untrammeled choice in an election This is so because the test of conduct which may interfere with the laboratory conditions for an election is considerably more restrictive than the test of conduct which amounts to interference restraint or coercion which violates Section 8 (a) (1) This a fortiori doctrine has been repeatedly applied 34 but it is not entirely clear whether the coin mission of any act of interference restraint or coercion during the critical period preceding an election ipso facto requires that the election be set aside If so it would seem to give the coup de grace to the concept of the isolated act Finally it is also clear that the Respondent violated Section 8(a)(5) of the Act not only by refusing to recognize the Union and enter into collective bargaining with its representatives but also by introducing unilateral changes in the conditions of employment at the Burlington plant 35 Whether in making these changes the Respondent was motivated by a desire to reward its employees for rejecting the Union or to secure their support in case the result of the election should be set aside and another election should be directed would seem to be quite immaterial Since the Union represented more than a majority of its employees the Respondent could make these changes only after collective bargaining with the Union In view of the failure of the Union to object to the conduct of the election on the ground that Simon had made misrepresentations in his letters of August 26 and September 9 concerning the wages and fringe benefits enjoyed by the employees of the Burlington plant in comparison with those of other plants in the area, and in view of my doubt that this issue was fully litigated at the hearing I express no opinion on this aspect of the case 36 IV THE REMEDY In view of the scope of the Respondents unfair labor practices I shall recommend a broad form of cease and-desist order restraining the Respondent from infringing on any of the rights guaranteed to employees by Section 7 of the Act By way of affirmative relief I shall recommend that the proceedings in the repre sentation case be vacated that the result of the election held on September 15 1965 be set aside and that the Respondent be directed upon request of the Union to bargain collectively with it as the exclusive representative of the Respondent s employees in the appropriate bargaining unit and embody in a signed agreement any understanding winch may be reached CONCLUSIONS OF LAW I Consolidated Rendering Company d/b/a Burlington Rendering Company in an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 Amalgamated Meat Cutters Foodstore and Allied Workers of North America AFL-CIO Local Union No 33 is a labor organization within the meaning of Section 2(5) of the Act M See for instance Piayskool 3fanufacturing Company 140 NLRB 1417 1419 Daniel Construction Company 145 NLRB 1397 1410 Davis Cabinet Co 150 NLRB 182 85 The basic case is N L R B v Katz 389 U S 736 W The holding in the Koplin case supra that the Bernet Foam doctrine will not be applied in a case in which the union failed to file any objections at all to the conduct of the election would not seem to be a bar however to the consideration of this issue The Board has held that a Regional Director in considering whether to set aside an election is not limited to the specific issues raised by the parties and is not precluded from con ducting an independent investigation See J I Case Company 86 NLRB 12 Hobart Man ufacturing Company 92 NLRB 203 205 City Tire Company 117 NLRB 753 754-755 Carter Lee Lumber Company 119 NLRB 1374 1376 International Shoe Company 123 NLRB 682 684 NLRB v Realist Inc 328 F 2d 840 843 ( C A 7) Surely what may be done by a Regional Director who is but a delegate of the Board may be done by the Board Itself 9 CONSOLIDATED RENDERING CO 19 3 By interrogating its employees coercively concerning their union sympathies and activities by threatening their employees with economic reprisals including loss of employment because of their support of the Union and by promising its employ ees economic benefits in order to induce them to refrain from supporting the Union the Respondent interfered with restrained and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act and thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act 4 All production and maintenance employees of the Respondent employed at its Burlington plant and branch collection stations at Rutland Vermont St Johnsbury Vermont Potsdam New York and Peru New York exclusive of office clerical employees professional employees salesmen master mechanics guards and all supervisors as defined in Section 2(11) of the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 5 At all times since at least August 2 1965 the Union has been the representative for the purposes of collective bargaining of a majority of the employees in the appro priate bargaining unit as aforesaid and by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in the said unit for the purposes of collective bargaining in respect to rates of pay wages hours of employment or other terms and conditions of employment 6 On August 2 1965 the Union requested the Respondent to bargain collectively with it as the exclusive representative of all the employees in the appropriate bar gaining unit as aforesaid with respect to rates of pay wages hours of employment or other terms and conditions of employment 7 By refusing at all times since August 4 1965 to bargain collectively with the Union as the exclusive representative of all the employees in the appropriate bar gaining unit as aforesaid in order to undermine the Union and to destroy its majority status the Respondent has committed unfair labor practices affecting commerce within the meaning of Section 8 (a)(5) of the Act 8 By increasing the wage rates of its employees and by improving their fringe benefits unilaterally on November 25 1965 the Respondent has also committed unfair labor practices affecting commerce within the meaning of Section 8(a)(5) of the Act RECOMMENDED ORDER Upon the entire record of this case and pursuant to Section 10(c) of the National Labor Relations Act as amended I recommend that the Respondent, Consolidated Rendering Company d/b/a Burlington Rendering Company its officers agents successors and assigns shall 1 Cease and desist from (a) Interrogating its employees coercively concerning their union sympathies and activities (b) Threatening their employees with economic reprisals including loss of employ ment because of their support of the Union (c) Promising its employees economic benefits in order to induce them to refrain from supporting the Union (d) In any other manner interfering with restraining or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Take the following affirmative action in order to effectuate the policies of the Act (a) Upon request bargain collectively with the Union as the exclusive representa- tive of the employees in the bargaining unit hereinbefore described as appropriate with respect to rates of pay wages hours of employment or any other term or condition of employment and embody in a signed agreement any understandings which may be reached (b) Post at its plant at Burlington Vermont, and at its branch collection station at Rutland and St Johnsbury Vermont and Potsdam and Peru New York copies of the attached notice marked Appendix 97 Copies of the said notice to be fur coshed by the Regional Director for Region 1 after being duly signed by an authorized sr In the event that this Recommended Order is 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 If the Board s Order is enforced by a decree of a United States Court of Appeals the notice shall be further amended by the substitution of the words a Decree of the United States Court of Appeals Enforcing an Order for the words a Decision and Order 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the Respondent , shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where such notices are usually displayed . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Decision , what steps have been taken by the Respondent to comply herewith.38 In the event that this Recommended Order Is adopted by the Board , this provision shall be modified to read : "Notify the Regional Director for Region 1, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES OF OUR BURLINGTON PLANT , AND OF OUR BRANCH COL- LECTION STATIONS AT RUTLAND AND ST. JOHNSBURY, VERMONT, AND POTSDAM AND PERU, NEW YORK Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in older to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request , bargain collectively with Amalgamated Meat Cutters, Food Store and Allied Workers of North Ameiica, AFL-CIO, Local Union No. 33, as the exclusive bargaining representative of our employees in the bar- gaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached , we will embody such understanding in a written , signed agreement. The bargaining unit is: All production and maintenance employees at our Burlington , Vermont, plant and branch collection stations at Rutland and St. Johnsbury, Vermont, and Potsdam and Peru, New York, exclusive of office clerical employees, professional employees , salesmen, master mechanics, guards, and all super- visors as defined in Section 2(11) of the Act. WE WILL NOT coercively interrogate our employees concerning their union sympathies and activities. WE WILL NOT threaten our employees with economic reprisals , including loss of employment, because of their support of the Union. WE WILL NOT promise our employees economic benefits in order to induce them to refrain from supporting the Union. WE WILL NOT increase the wages of our employees , or improve their fringe benefits without first bargaining with the Union with respect to changes in their working conditions. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed to them in Section 7 of the Act. All our employees are free to become or remain , or refrain from becoming or remaining, members of any labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3), as guaranteed in Section 7 of the Act. CONSOLIDATED RENDERING COMPANY, D/B/A BURLINGTON RENDERING COMPANY, 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 employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108, Telephone 223-3353.