Hopcon, Inc.

HOPCON, INC. 31 renewal, or supplement thereto. However, we are not required to vary or abandon any wage or other substantive feature of those agreements and our employees are not precluded from asserting any rights they may have thereunder. All our employees are free to become, remain , or refrain from becoming or remaining, members of the above-named labor organization or any other labor organization. KELLER LADDERS SOUTHERN, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) KELLER INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4722. Hopcon, Inc. and Teamsters Local No. 524, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent. Case 19-CA-330. October 17,1966 DECISION AND ORDER On June 21, 1966, Trial Examiner Henry S. Salim issued his Deci- 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. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein. 1. The complaint alleged, Respondent in its answer admitted, and we find, that the following employees constitute a unit appropriate 161 NLRB No. 1. 1 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purposes of collective bargaining R ithin the meaning of Section 9(b) of the Act All employees of Respondent at its Wapato, Washington, plant, excluding office clerical employees, professional employees, labora tory technicians, guards, and supervisors as defined in the Act 2 The evidence shows, and we find, that on August 13, 1965, the date of the Teamsters demand for recognition, there were six employ ees in the aforesaid appropriate unit, all of whom had signed cards designating the Teamsters as their collective bargaining representa tive Respondent in its brief to the Board contends, however, that the cards should not be counted as valid designations of the Teamsters allegedly because "the employees were persuaded to sign Teamster authorization cards so that they could get more information about the various unions and ultimately have an NLRB conducted secret election " According to the findings of the Trial Examiner, a meeting with Teamster officials was arranged at the request of employee Dale Young in order to ascertain what benefits the employees would receive if they were to designate the Teamsters as their baigaining representative The meeting was held on July 28, 1965, at the Teamsters' offices All employees in the unit attended Teamsters' officials explained the Union's health and welfare benefits to employees, and then left the room so that the employees could decide among themselves what they wanted to do The employees decided to join the Teamsters, so informed the union officials, and then signed Teamsters' cards The cards state I hereby designate Teamsters, Chauffeuis, Warehousemen and Helpers, Local Union No 524, affiliated with International Broth erhood of Teamsters, Chauffeurs, Warehousemen and Helpet s of America, as my collective bargaining representative Officials of the Teamsters who attended the July 28 meeting Ni ith employees testified that at the meeting they described the various pro cedures by which the Union could secure recognition from Respondent, but denied that they had told the employees that the cards would be used only to obtain an election Employee Roberts testified that the Teamsteis officials told the employees that an election was "an ap proach that could be made as to determining a bargaining agent or this was one way of deciding, the employees have an election and decide on a bargaining agent " However, he admitted making the fol HOPCON, IN C. 33, lowing pretrial statements- about the meeting to Respondent's and Intervenor's attorneys : We were given cards to sign by these officials and were told this was the way to ^ get an election in the plant for union representation. Mr. Wehde [Teamster official] gave each employee a card and told- them that signing the cards would have no effect whatever, that they could sign as many cards as they wanted to but signing the cards would give them a right to an election. Employee Briggs testified that at the meeting with the Teamsters : We went in there and talked to them and asked them some ques- tions about organizing, union and different stuff and they got to. explaining how they organized some different businesses in Yakima and things so then they asked us if we would be willing to sign some cards and so we discussed it among ourselves and signed them. When asked if the Teamsters officials said anything about petitioning for an election, he replied, "I can't recall, I believe there was though." Briggs admitted that he had given a written statement to an attorney for Respondent that Teamsters officials at the-meeting had said : Well, you should sign these cards, they really don't mean any- thing, just an election. All signed the cards to get an election. Respondent relies on these written statements to invalidate all the Teamsters authorization cards signed by employees., Neither, employee Roberts nor employee Briggs, gave testimony contradictory- to that of the Teamsters -officials; at most the pretrial statements by these two witnesses upon which Respondent relies may serve ^to impeach their testimony, but is not entitled to independent -weight. Moreover,, the detailed and coherent account.of what Team- sters officials told the employees at the July 28 meeting as narrated by these officials, considering how the meeting came about and its course, is more reasonable and credible than any possible inference that might be drawn from the pretrial disjointed statements made to the attor- neys for Respondent and Intervenor. Finally, the cards which were signed by the employees were straightforward authorizations to repre- sent, and contained no mention of an election. For all the foregoing reasons, we credit the testimony, of the Teamsters officials that they did not tell employees that the authorization cards signed by employ- ees were to be used only for obtaining an election. Accordingly, we 264-188-67-vol. 161-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find, contrary to the contention of Respondent, that on August 13, 1965, the Teamsters validly represented a majority of employees in the appropriate unit. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [Add the following at the end of paragraph 2(b) of the Trial Examiner's Recommended Order and at the end of the third para- graph of the Appendix : ["... , unless and until the Board shall certify said labor organi- zation as collective-bargaining representative."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on September 24, 1965, by Teamsters Local 524, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on October 28, 1965, against Hopcon, Inc., herein called both the Respondent and the Company, alleging that the Respondent Company had engaged in certain unfair labor practices within the meaning of Section 8 (a) (1), (2), and (5) of the Act by rendering unlawful assistance to the Laborers Union as a means of undermining the Teamsters majority status by soliciting its employees to sign Laborers cards in order to prevent its employees from selecting the Teamsters as their collective-bargaining representative and by refusing to bargain with the Team- sters Union. Respondent's answer denies generally the commission of any unfair labor practices. Pursuant to notice, a hearing was 'held in Yakima, Washington, on January 11, 1966, before Trial Examiner Henry S. Salim. Briefs were filed by the parties on February 15, 1966, which have been fully considered. Upon the entire record in the case and observation of the witnesses , their demeanor, and after due consideration of the briefs, there are hereby made the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATIONS INVOLVED Respondent, a New York corporation , with a plant at Wapato, Washington, is and at -all times material herein has been engaged in the extraction and concentration of hops. During its past fiscal year, Respondent, in the course and conduct of its busi- ness operations at Wapato, Washington, shipped products valued in excess of $50,000 directly outside the State of Washington and purchased and received materials and products valued in excess of $50,000 directly from outside Washington . Accordingly, it is found that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended , herein called the Act. The Teamsters Union and the Laborers Union are labor organizations within the meaning of Section 2(5) of the Act. IT. THE ALLEGED UNFAIR LABOR PRACTICES A. The undisputed facts Respondent's plant, a new one , went into production in April 1965 . On April 18, 1965, Sidney Meisler, superintendent of Respondent's Wapato plant , contacted Her- bert Lobdell, business representative of the Laborers Union, whereupon the latter gave Meisler authorization cards of the Laborers Union. Meisler in turn , gave these cards to Muir, a plant supervisor within the meaning of Section 2(11) of the Act, and Muir distributed these cards to Respondent 's employees sometime in June and July and requested them to sign and return the cards to him.' 'Based upon a question asked Muir by Respondent 's counsel, it appears Muir asked the employees to sign and return the cards to him . Corroborative of this conclusion is the testi- mony of Lobdell , the Laborers representative , that when he gave these authorization cards to Meisler he "told him I would have to have [the cards ] signed to represent these people .. . . " See pages 173, 195, and 199 to 201 of the transcript. HOPCON, INC. 35 Sometime in July 1965, Respondent's employeeswishedito investigate the welfare, health, and hospitalization benefits of the Teamsters Union, the Charging Party. Dale Young, an employee, was asked by his fellow workers to arrange a meeting with the Teamsters in order to ascertain what benefits they would receive if they were to designate the Teamsters Union as their bargaining representative. A meeting was arranged for the evening of July 28, 1965, at the Teamsters office. At that time and place, Teamsters officials-explained their health and welfare benefits plan to the employees. The Teamsters officials then left the office where the meeting was being held, and told the employees to decide what they wanted to do and when they did to convey their decision to the union officials who would be waiting in the next room. All of Respondent's employees who were present at the meeting, after discussing the matter among themselves, called the Teamsters officials back and then signed Teamsters cards.2 On August 13, 1965, two of the Teamsters business representatives, Wehde and Tanasee, spoke with Meisler, Respondent's superintendent, at his office. They handed Meisler the employees' signed authorization, cards and he examined them. The Team- sters Union representatives informed Meisler they represented Respondent's-employ- ees and requested recognition. Meisler informed the union representatives that he had no authority to either recognize or bargain with the Teamsters but that Ernest Iglauer, a director and secretary-treasurer of Respondent, who lived in New York City, would be at the plant the following week and he would discuss the matter with him. There is a conflict in testimony as to whether the Teamsters officials were to contact Meisler or Meisler was to arrange a meeting between Iglauer and the Team- sters when Iglauer arrived at the plant from New York but in any event, no meeting was held. The following letter was sent by the Teamsters: August 16, 1965. Mr. Sid Meisler Hopcon, Inc. Wapato, Washington Dear Mr. Meisler: In order that you may have a record of the position of Teamsters' Union Local No. 524, I am including in this letter-the verbal position we stated at our meeting with you on Friday, August 13th at your office in Wapato. 1. That we represent all the employees of Hopcon, Inc. and are requesting that you sit down and bargain with us on behalf of those employees. 2. I am enclosing a copy of the bargaining cards signed by the employees which we showed to you at our meeting on Friday. 3. It is our understanding that you would be in contact with the Company and, further, that the Director of Hopcon, Inc. would be in Wapato on Wednes- day, August 18th and you would discuss the matter with him and would advise us as to the Company's position. People present at the above mentioned meeting at approximately 4 p.m., Friday, August 13, 1965 were: yourself, Mel Tanasse, Business Agent for Team- sters Local Union No. 524, and myself. Thank you for your consideration in this matter. Very-truly yours, F.H. Wehde Secretary-Treasurer, Teamsters Local Union No. 524 FHW: I Certified Mail Enc. Bargaining Cards On August 16, 3 days after the Teamsters requested recognition , Muir, Respond- •ent's supervisor, ordered the employees to assemble in Superintendent -Meisler's office during working hours. Meisler introduced Lobdell„the Laborers Union business agent, who spoke to the employees with respect to the advantages of his union's health and welfare plan. After Lobdell finished speaking, he asked the employees "if they would consider signing [Laborers Union] representation cards." They all signed. Later, another meeting was held in Meisler's office who introduced William Kunz, a Carpenters Union official to the asseiribled•employees.'Meisler•then Ileft-the meeting. Kunz spoke highly of Meisler and lauded the Laborers Union health and welfare plan. Lobdell, the Laborer's representative then explained and answered questions with respect to the Union's welfare, health, and hospitalization plan to the employees. One employee, Riegel, who was not present at this July 28 meeting, as he did not begin to work for the Respondent until August 3, signed a Teamsters card on August 10. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 23, the Laborers Union filed a representation petition for an election and a Board hearing was held on September 17 1965 The Teamsters intervened On September 21 an election was ordered which presently is in abeyance because of the Teamsters unfair labor practice charge filed on September 27 and the issuance of the complaint in this proceeding on October 28 1965 B Resolution of credibility Considerable credence has been placed upon the testimony of those witnesses who were in the employ of Respondent at the time they testified As such they depended on their jobs for their livelihood and they understood that after testifying they would continue in the employment of Respondent Moreover one is not unmindful of the predicament of an employee who testifies adversely to his employers interests being apprehensive and fearful with some measure of justifi,ation as to the future possi- bility of retaliatory action These practical considerations coupled with the normal workings of human nature have led me to credit those witnesses who are presently employed by Respondent, as it is believed they were impelled to tell the truth regardless of what consequences might eventuate Dale Young who is no longer employed by Respondent was a forthright witness whose testimony is credited C The testimony Charles Riegel who has been working for the Respondent Company since August 3 1965 attended the August 16 meeting of the assembled employees in the plant at which time they were addressed by Meisler and Lobdell The meeting was held 3 days after the Teamsters requested recognition Riegel s testimony is as follows Meisler introduced Lobdell of the Laborers Union to the employees The first_ thing [Meisler] wanted to know was who stabbed him in the back And he somewhat strongly suggested that perhaps the Teamsters wasn t the Union that we wanted He thought we could do better elsewhere namely with the Laborers He related an incident where he said he personally knew Dave Beck and he told us about a truck driver [who] had given hun a hard time at one time or another and he called on the phone and got hold of Dave Beck and within minutes that fellow was gone and he said You want to deal with people that are powerful that can do that? He said this business is a baby and he said you really don t know anything about it He said you really don t know enough about it to come in and demand anything but he said I want to provide for your families and I want you to have the hospitalization insurance for yourself and your families He said the Teamsters were gangsters 3 and on the other band he said the choice is yours don t throw away this precious thing you have you may have only one chance use it wisely Q And how did this meeting end was anything decided9 A Well we thought it would be best for us to sign the Laborers cards Q Did you then sign Laborers cards? A Yes Lobdell told them Riegel testified that they had freedom of choice as to whether they wished to sign a Laborei§ Union card On trots-examination by counsel for the Laborers Union regarding the August 16th meeting Riegel testified as follows Q Why did you sign the Laborers authorization card? A Well I just started work and I was like [Meisler] said a sheep That was what Sid [Meisler] said that I sheeped because I signed the Teamsters because everyone else had but when you have a family to support and you feel and you are new on a job you don t know what they think of yoit and you don3t know what you think of them and it has been quite strongly suggested that you sign a card we all looked at each other and kind of nodded in agreement we better sign it whether it means anything or not we better sign it In answer to a question by the Teamsters Union s attorney with respect to the August 16 meeting Riegel testified as follows Q When did Sid Meisler call you a sheep? A Well it wasn t specifically me it was all of us He said, What are you sheep? $ in answer to a leading question by Respondents attorney Meisler s testimony that he did not speak in a derogatory manner about the Teamsters Union is not credited PHOPCON, I NC 37 When questioned by the company attorney Riegel testified as follows Q At any of these meetings did Mr Meisler ever say he didn t care which union represented the men as long as they got the benefits9 A Yes Then Riegel testified about the next meeting of the employees called by the Com pany at which time William Kunz an official of the Carpenters Union was introduced to the employees by Meisler as a friend of long standing with whom he had had business dealings for over 20 years Kunz told the assembled employees of his high regard for Meisler and what a good mutual understanding they had had over all these years without a written contract Roland Roberts who is presently employed by the Company testified regarding Muir the supervisor distributing Laborers Union authorization cards in the plant during working hours to the employees in late June or early July He testified that when Muir handed him a card he said to read it sign it if I wanted to and return it With respect to the August 16 meeting Roberts testified that Lobdell explained the advantages of the Laborers Union health and welfare program Roberts testified that Meisler in speaking to the employees at this meeting in his office wanted to know why we went to the Teamsters there was some discussion on who prompted it and we said well the fellow that had set up the meeting had already left and there was no mention of names at that time 'i James Briggs who has been employed by the Company since April 1965 testified that Muir his supervisor gave him a Laborers Union card about the middle of June" and "He just asked us to sign it and give it back in a few days he didn't specify any certain time about a month or so later I believe [Muir] come around and asked us for them With respect to the August 16 meeting Briggs testified that when Meisler spoke to the assembled employees he inquired why they had not come to him when they signed Teamsters cards Under examination by the Respondent Company s attorney Briggs was asked the following question Q Did he [Meisler] give you any reason to believe that he wanted you to favor either of these unions9 A No not that I know of Dale Young worked for the Company from April to August 13 1965 inclusive On the last day he worked which was the same day the Teamsters requested recog ration Young testified that Meisler told him in the plant after the Teamsters officials had left the plant that it would probably be advantageous for us to belong to the Laborers Union rather than the Teamsters it would be better if we didn t join the Teamsters at that time and go ahead and he would suggest several unions that we could join and maybe the Laborers would be one of them as far as benefits and what not, those would be brought up too he said the Teamsters tend to be corrupt the hoodlum variety Young also testified Meisler told him he was not concerned with which union represented the employees but he wanted the best benefits for the men Sidney S Meisler a mechanical engineer is superintendent of Respondents Wapato plant His immediate superior is Ernest Iglauer who lives in New York City and is director and secretary treasurer of the Respondent Company Meisler and his wife own the A & S Recompressing Company, located adjacent to Respondents plant which processes products related to those manufactured by the Respondent 5 Meisler testified that in April 1965 he discussed with Kunz, an official of the Carpenters Union whether he could obtain the same health and welfare plan for Respondent s employees which his own company (A & S Recompressing Co) pres ently had with the Carpenters Union Kunz suggested that he discuss this matter with Lobdell the Laborers Union official which he did Lobdell advised him his union could do this but testified Meisler Lobdell told him that in order to accomplish this Respondents employees would have to sign Laborers Union authorization cards 6 4 This 1s an unmistakable reference to Dale Young who left the Company s employ on August 13 1965 See pages 36 and 37 supra 5 The Laborers Union supplied Meisler with construction employees when Respondent s plant and the A & S plants were being built 9 These were the cards Lobdell gave Meisler in April 3 months before the advent of the Teamsters and which Supervisor Muir later distributed to the Respondent Company s employees in June or July and were signed by them after Lobdell the Laborers Union representative spoke to them at the August 16 meeting See footnote 1 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Lobdell was asked if it was necessary for Respondent's employees to join his union in order for them to be covered by the Laborers health and welfare plan, he testified: "not necessarily so." He also testified that inasmuch as the employees "were out of the construction field, we would have to have a plant agreement... . Under the law, why, anyone that has benefits paid into this for compensated hours, these people regardless of their membership, are entitled to the benefits under this program." Lobdell's testimony continues as follows: I do not necessarily have arrangements with other employers, but this will vary, that an employer will have paid in on an employee who has not become a member and he has accrued enough hours under the program to qualify and he has achieved benefits. However, it is up to us- to organize this particular man and try to get him in, but as long as these benefits have been paid in, he is entitled to them. I coudn't stop him from receiving them. With respect to the meeting in his office on August 13, with the Teamsters, Meisler's testimony is substantially the same as the two Teamsters officials except with respect to who was to arrange the meeting with Iglauer. His version is that the Teamsters were to contact him when Iglauer, his immediate superior, came to Wapato from New York. The Teamsters officials denied this testifying that Meisler told them he would notify them as to when Iglauer would be able to see them on his arrival from New York. The Teamsters Union's witnesses version is credited as evidenced by para- graph number "3" of the Teamsters letter to Meisler which will' be found at page 35, supra. This paragraph of the Teamsters letter to Meisler states that he was to discuss the Union's request for recognition with Iglauer, when he arrived at the plant, and Meisler, "would advise us as to the Company's position." Meisler testified that when he was notified by the Teamsters on August 13 that they requested recognition and that the employees had signed union authorization cards, ". . I was completely taken by surprise that they [employees] couldn't come with confidence to me." D. Analysis of the evidence The evidence for the reasons hereinafter indicated, belies Respondent's defense that it cannot be found to have refused to bargain within the meaning of Section 8(a) (5) because Meisler did not have the requisite authority to make decisions as to such matters involving policies of plant operations. Respondent's lack of authority defense rings hollow in the face of its conduct detailed below. Notwithstanding the precipitancy of the Teamster Union's request for recognition, the fact remains and the evidence reveals that Meisler was in complete charge of the plant despite his protestations to the contrary. His immediate superior was officed in New York City, a great distance from the plant, so it is not too reasonable to assume he had ostensible, if not real authority to recognize the Union, under the circum- stances here delineated, even though Meisler contended he did' not have authority to deal with the Union without, authority from Iglauer. Despite Respondent's asser- tion to the contrary, the Teamsters' request to Meisler for recognition, is in its legal incidence, under the circumstances herein, as binding upon Respondent as if made to one of its admittedly authorized company officials in the contest of Meisler's immediately embarking upon a campaign to destroy the Teamsters majority in order to enable him to deal with his favored union, the Laborers. Such conduct frustrated the statutorily guaranteed free choice of the employees so that Respondent's defense may not be successfully raised in a context of unfair labor practices.? A company may not restrict its obligations to meet and bargain with a union to those periods of time when the authorized corporate official is in the city where the plant is located.8 The responsibility of Respondent to meet with the Union only at such times as Iglauer was at the plant does not satisfy the requisites of good-faith bargaining. Nor is it unreasonable to hold that under the peculiar circumstances here present, in view of Meisler's superior being officed in New York and Meisler being in complete charge of all phases of the plant's day-to-day operations, Respondent should not have delegated authority to deal with union matters to Meisler. Moreover, it is not believed, based on the realities of the situation here present that there was no one other than Iglauer who was or properly could have been authorized by the Company to meet with the Teamsters. 7 Hammond & Irving, Incorporated, 154 NLRB 1071 ; Irving Air Chute Co. v. N.L R.B., 350 F.2d 176 (C.A. 2). 8 Cf. Lock Nut Corporation of America, 77 NLRB 600, 608. HOPCON, INC. 39 It appears Respondent had established Meisler as an official with apparent authority to represent it in dealing with unions .9 In fact, he had done so in the past. He was in charge of the construction of the Wapato plant; he handled the industrial relations in connection with it, as evidenced by his arrangements with the Laborers Union, and perhaps also with the Carpenters Union; 10 he accepted and distributed the Laborers cards, arranged for Lobdell, the Laborers' official, and Kunz, the Carpen- ter's Union representative, to speak to the employees and even suggested to the employees that he was partial to the Laborers Union. Moreover, had Respondent had a good-faith desire to negotiate with the Teamsters Union, there is no apparent reason why Meisler or Iglauer, under the circumstances here disclosed, should not or could not have communicated with the Teamsters when Iglauer was at the plant from August 18 to 21 inclusive. Their failure to do so, it is not too unreasonable to infer, was improperly motivated by a desire to avoid bona fide negotiations with the Union. See paragraph "3" of the Teamster's letter of August 16, at page 35, above, which makes it clear that the Teamsters expected Respondent to contact them. While Meisler maintained he had no authority to grant the Union's request for recognition, his actions clearly showed not only his opposition to the employees being represented by the Teamsters but rather that he favored the Laborers Union. It is believed and found that his opposition to the Teamsters, as detailed above, particularly not notifying the Teamsters, when Iglauer was at the plant as he had promised he would, was the reason which actually motivated Respondent in refusing to recognize the Teamsters within the meaning of Section 8(a)(5) and not Meisler's alleged lack of authority.li Dispositive of this issue is the case of American Lady Department Stores, 145 NLRB 393, 395, 399. On August 13, 1965, when the Teamsters presented the signed authorization cards and requested recognition, Meisler not only refused the request (alleging lack of authority), but immediately proceeded to interfere with the employees' choice of the Teamsters as their bargaining representative and to openly espouse the Laborers Union.i2 This is evidenced by his conversation with employee Dale Young in which Meisler made invidious comparisons between the Laborers Union and the Team- sters.13 Moreover, there is Riegel's testimony showing not only Meisler's opposition to the Teamsters but his favoring the Laborers Union and his unfavorable comparison of the Teamsters with the Laborers Union, in which he referred to the Teamsters as "gangsters." 14 Furthermore, there is Roberts' recital of what transpired when Muir, his supervisor, handed him a Laborers Union' authorization card and suggested he sign it, "if [he] wanted to." 15 Then there is credited testimony that Meisler at the August 16 meeting asked the employees why they signed Teamsters cards, dispar- agingly called them "sheep" and inquired as to whom of the employees initiated their going to the Teamsters.18 A situation such as this, where the Respondent's unfair labor practices are clearly established after the Teamsters request for bargaining, and its assertion that Meisler had no authority to recognize the Union, under the circumstances here revealed, might be considered questionable after-the-fact rational- izations insufficient to explain his conduct and therefore, may properly be regarded with some suspicion .17 Particularly pertinent in this regard is the language of the Courts of Appeals for the Sixth Circuit which stated in language squarely applicable here: 18 If the far-flung activities of the respondent place its main executives in New York City, it can still readily designate responsible agents on the ground to deal with employees. 6 See Universal Metal Finishing, 156 NLRB 138. 10 See footnote 5. 11 See N L R B v. Russell Mylt. Co., 191 F.2d 358 (C.A. 5). 12 The Board has held that if an employer engages in unlawful conduct which renders a free election impossible, union authorization cards will be accepted and the employer re- quired to bargain with the union . Hamburg Shirt Corporation, 156 NLRB 511, Bernet Foam Products Co., 146 NLRB 1277. 13 Case page 37. 14 See page 36. 15 See page 37 and footnote 1. 18 See pages 36 and 37. 17 Cumberland Shoe Co , 351 F.2d 917 (C A. 6), enfg. 144 NLRB 1268. 1s N.L.R.B v P Lorillard Company, 117 F.2d 921, 924. Cf. N.L R.B. v Mexia Textile Mills, Inc., 339 U.S. 563, 565, where respondent "shunt[ed] the union representative from one company official to another in search of final authority." 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally there is Briggs testimony that he was handed a Laborers card by Muir his supervisor who requested hum to sign it and Meisler inquiring at the August 16 meeting why the employees had not consulted with him before going to the Teamsters 19 E The issue The underlying issue in this whole area as exemplified from the evidence detailed above is that of determining from the record whether the Respondents refusal to bargain was based on valid consideration or on the contrary was a mere device on its part to take such steps as it could to deprive the Teamsters Union of employee support in order to dissipate its majority status F Section 8(a)(5) conclusions Section 8(d) of the Act provides in part For the purposes of this section to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages hours and other terms and conditions of employment Six days after the Teamsters demand Iglauer was at the plant for 3 days His failure under the circumstances detailed above to contact the Teamsters was an indication of bad faith Moreover it is not too unreasonable to assume that Meisler had telephoned Iglauer immediately in New York of his meeting on August 13 with the Teamsters Withholding recognition under such circumstances is indicative of Respondents lack of bona fides It is believed also and so found that Meisler s refusal to deal with the Teamsters was not motivated by lack of authority but rather by a rejection of the collective bargaining principle and by a desire to gain time within which to destroy the Team sters majority This is demonstrated by Meisler s pattern of conduct immediately upon learning that the employees had signed Teamsters cards namely engaging in an intensive and varied campaign of unfair labor practices directed at all employees in the unit and designed to coerce them into voting for the Laborers and against the Teamsters and thus undermine the Teamsters majority 20 Such conduct in the face of a prior bargaining request by the Teamsters refutes Respondents defense and constituted a refusal to bargain within the meaning of Section 8(a)(5) because it interfered with restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act Section I of the Act provides that Employees shall have the right to bargain collectively through representatives of their own choosing One of its purposes is to promote the freedom of employees to select a union in an atmosphere free from restraint or coercion There is nothing more likely to subvert the policies and purposes of the Act than interfering with such right If the Respondent's defense were really bona fide it would not have launched immediately an antiunion campaign Its reaction to the Teamsters Union s recognition request belies its allegation that Meisler did not have the requisite authority 21 The issue is not whether Meisler lacked authority but whether Respondents unlawful conduct precluded its being raised This must be answered in the affirmative under the Joy Silk Mills doctrine 22 because the Respondents immediate reaction to the Teamsters request for recognition was a demonstrated pattern and concerted campaign to supplant the Teamsters with the Laborers Union The inevitable and inescapable conclusion from such conduct is that Respondents purpose was to destroy the Teamsters majority status and to defeat it at the anticipated election By such tactics the employees were coerced their free choice of a bargaining repre sentative rendered impossible and thus the freedom which the Act accords them frustrated The employer acts at his peril in refusing to recognize a duly selected bargaining agency of an appropriate unit of his employees unless the facts show that in the exercise of reasonable judgment he lacked knowledge of the appropriateness of the umt or the selection of the majority representative= 19 gee page 37 99 Engineers A Fabricators Inc 156 NLRB. 919 Comfort Inc 152 NLRB 1074 21 N L R B v Security Plating Company 356 F 2d 725 (C A 9) m Joy Silk Mills Inc v NLRB 185 F 2d 732 (CA D C ) 23 N L R B v Elliott Williams Co 345 F 2d 460 464 (C A 7) HOPCOI\, INC 41 It also violated the essential principles of collective bargaining and not only coin pletely negated the Respondents alleged good faith defense 24 of no authority for refusing to deal with the Teamsters but supports the conclusion that it was spurious because it merely sought time in which it might undermine the Teamsters majority status It then utilized the time afforded it by Meisler s claim that it would be about a week before Iglauer would be at the plant to destroy this majority status During this interval the 'ensitive initial stages of the organizing campaign Meisler utilized this time to impress the employees with his opposition to the Teamsters and his predilection toward the Laborers Union This constitutes an unfair labor practice even assuming arguendo there was an absence of accompanying overt threats or coercive statements 25 Moreover the totality of Respondents conduct subsequent to the Teamsters demand is indicative of bad faith as it shows a demonstrated unlawful antiunion motivation by Meisler to use the time until Iglauer s arrival to subvert the Teamsters majority status while collective bargaining negotiations were pending This pattern of proscribed conduct during this period of time establishes that the Respondent failed to bargain in good faith and is equivalent in its legal incidence to a refusal to bargain in violation of Section 8(a)(5) of the Act26 G Section 8(a)(2) conclusions As the Supreme Court has emphasized the Act guarantees to employees complete and unfettered freedom of choice with respect to the selection of bargaining repre sentatives 27 Section 7 of the Act expressly assures to employees the right to select representatives of their own choosing Section 8(a)(1) proscribes employer inter ference with that right As the Board declared in Dal Tex Optical Company Inc 137 NLRB 1782 1786 Conduct violative of Section 8(a)(1) is a fortiori conduct which interferes 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) Section 8(a)(2) specifically forbids employers to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it Under these provisions it has repeatedly been held that an employer may not intrude in matters concerning the self organization of his employ ees Especially is this so where the adherence of the employees is being sought by rival labor organizations 28 At a time when the rival organizations [are] still in a formative state the employees [are] sensitive to weight thrown by their employer in favor of one organization as against another even though the suggestion of preference be subtle or slight 29 Section 8(a)(2) is designed to prevent interference by employers with organs zations of their workers that serve or might serve as collective bargaining agencies 24 'Good faith is one form of credibility it means that the motive that actuated the conduct in question was in fact what the actor ascribes to it i e that what I e gives as his motive was in truth his motive Judge Learned Hand in N L R B v Thompson & Co 208 F 2d 743 745 (C A 2) Koch Engineering Company Inc 155 NLRB 1272 20 Cf Snow & Sons 134 NLRB 709 see Drug King Inc 157 NLRB 343 where the Board said where an employer refuses to recognize a union upon a showing that a ma jority of its employees in an appropriate unit have signed cards designating the union as their representative our recent decisions make it clear that the critical issue is a hether the General Counsel has carried the burden of showing the refusal to bargain was in bad faith In such circumstances a prima facie case of bad faith cannot be rebutted simply by asserting that authorization cards are unreliable as proof of employee desires 27 N L R B v Lank Belt Company 311 U S 584 588 I A 3f (Serrick Corp) v 11 L R B 311 US 72 78 79-80 N L R B v Southern Bell Telephone and Telegraph Company 319 IIS 50 60 28 Harrison Sheet Steel Company v N L R B 194 F 2d 407 410 (C A 7) 2B Elastic Stop Nut Corp v N L R B 142 F 2d 371 375 (C A 8) cert denied 323 U S 722 See also N L R B v Lank Belt Co supra 599-600 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and it was enacted to assure employees that they would be free to choose any type of organization they desired without interference from the employer 30 The formation and administration of labor organizations are the concern of the employees and not of the employer. The conduct of an employer which has the effect of defeating the freedom of employees to carry out this function constitutes an unfair labor practice31 The Supreme Court has said: 32 It would indeed be a rare case where the finders of fact could probe the precise factors of motivation which underlay each employee's choice. Normally, the conclusion that their choice was restrained by the employer's interference must of necessity be based on the existence of conditions or circumstances which the employer created or for which he was fairly responsible and as a result of which it may reasonably be inferred that the employees did not have that complete and unfettered freedom of choice which the Act contemplates. The employer must not intrude in matters concerning the self-organization of his employees and the employees must be free from all restraint and coercion. The Act imposes upon an employer total and complete impartiality and the utmost of honest neutrality, since even slight suggestions as to the employer's choice between unions may constitute powerful support, and have telling effect among men who know the consequences of incurring the employer's strong displeasure in such matters.33 Thus, during a contest between rival unions the employer may not accord such treatment to one of the rivals as will give it an improper advantage or disadvantage. A duty is placed upon the employer to maintain a position of strict neutrality while rival unions seek support of his employees. In N.L.R.B. v. Summers Fertilizer Company, the United States Court of Appeals for the First Circuit stated: 34 It cannot be denied that employees have a right to choose either an inde- pendent unaffiliated union composed solely of fellow employees or a union affiliated with a national or international organization, but where such choice occurs after the initiation of organizational •drives, by other unions and after the demand for recognition by one of these unions, any form of benefit con- tributed by the employer to a particular union must be closely examined. See N.L.R.B. v. Brown Paper M. Co., 5 Cir. 1940, 108 F.2d 867, certification denied 310 U.S. 651. The test to be applied is whether such benefit is allowable cooperation with the freely chosen representative of the employees or is it in fact an inducement to these employees to choose an organization, which without this support, would very likely not have been so chosen. Accordingly, with respect to the allegation in the complaint that, Respondent rendered unlawful assistance and support to the Laborers Union in violation of Section 8(a)(2), it is so found, as such support was consistent with, and a continua- tion of, its antipathy to the Teamsters Union. The Laborers Union obtained its majority status through the Respondent's unlawful support. The evidence, detailed above, clearly shows that the Respondent gave such proscribed aid and support to the Laborers Union in a context of illegal union activity, in order to dissipate and destroy the Teamsters preexisting majority status and thus interfered with its employees' free- 30 See S. Rept 573, 74th Cong., 1st sess. 9-11 ; H Rept. 1147, 74th Cong , 1st sess 17-19 ; S. Rept. 105, 80th Cong, 1st sess. 12 ; 93 Cong Rec. 6443, 4169, A-2253 reprinted in Leg. Hist of the Labor Management Relations Act, 1947 (Government Printing Office, 1948) pp 418, 1539, 1103, 1525 ; H. Rept 245, 80th Cong., 1st sess. 28-29, '38, 42 ; S Rept. 105, 80th Cong., 1st sess 3, 12-13, 25, 26 ; H. Conf. Rept. 510, 80th Cong., 1st sess 40-41, 54-55, reprinted in Legislative History of the Labor Management Relations Act, 1947, supra, 319-320, 329, 333, 409, 418-419, 431, 432, 544-545, 558 ; Report of the Joint Com- mittee on Labor Management Relations, S Rept. 986, part 3, 80th Cong, 2d sess. 67-68, 99-100. 31 A' L.R B. v Pennsylvania Greyhound Lines, 303 U.S. 261 ; N L R B v Newport News Shspbusldeng & Drydock Co , 308 U.S. 241 ; Elastic Stop Nut Corp. v. N L R B., 142 F.2d 371. 380 (C.A. 8). 32 N L.R.B. v. Leak-Belt Company, supra, 588. 33 LA M v. N L R B, supra, 78, N L.R.B. v. Faultless Caster Corp , 135 F.2d 559 at 561 (CA 7) 31251 F 2d 514, 518. HOPCON, INC. 43 dom of choice in violation of Section 8 (a) (2) of the Act 35 It is not surprising, there- fore, that the majority which the Teamsters clearly possessed on August 13, 1965, when it first demanded recognition , should have been subsequently lost. That such loss was directly attributable to the Respondent's unfair labor practices is clear 36 III. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of the Act, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent violated Section 8(a)(5) of the Act by refusing to recognize the Teamsters Union and bargain in good faith, it shall be recommended, therefore, that the Respondent cease and desist from refusing to bargain, and that the Respondent bargain, upon request, with the Teamsters Union as the exclusive representative of its employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. Having found that the Respondent suggested to the employees the selection of the Laborers Union as their bargaining representative and assisted and supported the Laborers Union vis-a-vis the Teamsters, it thereby violated Section 8(a)(2) of the Act. Accordingly, it shall be recommended that the Respondent cease and desist from suggesting to its employees the selection of the Laborers Union, or any other union and that it cease and desist from recognizing the Laborers Union and cease and desist from giving the Laborers Union support and assistance. CONCLUSIONS OF LAW 1. Hopcon, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local No. 524, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Independent and Interna- tional Hod Carriers, Building and Common Laborers Union _ of America, - Local Union No. 614, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By suggesting to its employees the selection of the Laborers Union and by assisting and supporting the Laborers Union, the Respondent has engaged in and is engaging in unfair labor practices. 4. All employees of Respondent at its Wapato, Washington, plant, excluding office clerical employees, professional employees, laboratory technicians, guards, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since August 13, 1965, Local 524 of the Teamsters Union has been the exclusive representative of all the employees in the aforesaid unit, within the meaning of Section 9(b) of the Act, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 6. By refusing, on August 13, 1965, and since, to bargain collectively with the said Teamsters Union, as the exclusive bargaining representative of its employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 35 When Lobdell, business representative of the Laborers Union, was asked what the em- ployees answered when he inquired of them at the August 16 meeting the reason for their signing Teamsters cards, he testified : ". . . several of them was . . . afraid, as these [Laborers Union] cards were passed out by the employer's . . foreman . that we were probably a company -dominated union and they were afraid of us " 36 The Board recently held that when an employer planned to expand his operations but ran into jurisdictional problems and the employer tried to persuade his employees to join another union that this violated Section 8(a)(2) of the Act. Modern Plastics Corporation, 155 NLRB 1126. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act as amended it is hereby recommended that the Respondent Hopcon Inc Wapato Washington its officers agents successors and as igns shall 1 Cease and desist from (a) Suggesting to employees that they select the Laborers Union or any other labor organization as their bargaining representative and contributing assistance or rendering other support to said Laborers Union or any other labor organization and from otherwise interfering with the representation of its employees through a labor organization of their own choosing in violation of Section 8(a) (2) and (1) of the Act (b) Refusing to recognize and bargain collectively concerning rates of pay wages hours of employment or other terms and conditions of employment with Teamsters Local No 524 as the exclusive representative of its employees in the following appropriate unit All employees of Respondent at its Wapato Washington plant excluding office clerical employees professional employees laboratory technicians guards and supervisors as defined in the Act (c) In any other manner interfering with restraining or coercing its employees in the exercise of their right to self organization to form labor organizations to loin or assist Local 524 of the Teamsters Union or any other labor organization to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organs zation as a condition of employment as authorized in Section 8(a)(3) of the Act as modified by the Labor Management Reporting and Disclosure Act of 1959 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Upon request bargain collectively with Teamsters Local No 524 affiliated with International Brotherhood of Teamsters Chauffeurs Warehousemen and Help- ers of America Independent as exclusive bargaining representative of all of its employees in the appropriate unit delineated above and employed at the Respondents Wapato Washington plant with respect to rates of pay wages hours of employment and other terms and conditions of employment and if an understanding should be reached embody such understanding in a signed agreement (b) Withdraw and withhold all recognition from the Laborers Union or in any manner dealing with it or any successor thereto as the representative of its employ ees for the purpose of dealing with Respondent concerning grievances labor disputes wages rates of pay hours of employment or other terms or conditions of work (c) Post immediately at its plant in Wapato Washington copies of the attached notice marked Appendix 34 Copies of said notice to be furnished by the Regional Director for Region 19 after being duly signed by the Respondent Company s repre sentative shall be posted by the Company immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered defaced or covered by any other material (d) Notify the Regional Director for Region 19 in writing within 20 days from the receipt of this Decision what steps Respondent has taken to comply herewith 38 IT IS FURTHER RECOMMENDED that unless on or before 20 days from the receipt of this Decision and Recommended Order Respondent notifies said Regional Director in writing that it will comply with the above recommendation the National Labor Relations Board issue an order requiring it to take such action m 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 In the further event that the Board a Order is enforced by a decree of a United States Court of Appeals the words a Decree of the United States Court of Appeals Enforcing an Order shall be substituted for the words a Decision and Order In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith ELECTRICAL WORKERS LOCAL 369 45 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with nor suggest to our employees which union they should select as their bargaining representative or assist or give support to the Laborers Union, or to any other labor organization of our employees. WE WILL, upon request, bargain collectively with Teamsters Local No. 524, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Independent as the exclusive representative of all of our employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. Said bargaining unit is: All employees of Respondent at its Wapato, Washington, plant, excluding office clerical employees, professional employees, laboratory technicians, guards, and supervisors as defined in the Act. WE WILL NOT recognize the Laborers Union or any successors thereto for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations, join or assist the labor organization named above or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organizations except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. HOPCON, INC., Employer. Dated------------------ By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583. Electrical Workers Local 369, International Brotherhood of Elec- trical Workers, AFL-CIO; and Its Agent, George F. Wode and Rodger J. Henderson (Henderson Electric Co., Inc.) and Con- struction and General Laborers Local Union #576, Laborers' International Union of North America , AFL-CIO. Case 9-CD- 85. October 18, 1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Rodger J. 161 NLRB No. 6.