Mink-Dayton, Inc.

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mink-Dayton , Inc. and Sheet Metal Workers' Inter- national Association, Local 224, AFL-CIO. Cases 9-CA-3950 and 9-RC-6701 June 30, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 21. 1967. Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceedings, finding that the Respondent had en- gaged 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 Decision. The Trial Examiner also found merit in certain ob- jections filed in Case 9-RC-6701 and recom- mended that the election be set aside. Thereafter the Respondent and the General Counsel filed ex- ceptions to the Trial Examiner's Decision and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended. the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,, conclusions. and recommenda- tions of the Trial Examiner, with a modification.-' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that Respondent, Mink-Dayton. Inc., Dayton. Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Delete the final paragraph, commencing with the words "It is further recommended." and substitute the following: "IT IS FURTHER ORDERED that the petition for certification of representative. filed in Case 9-RC-6701. be, and it hereby is, dismissed, and that all prior proceedings held thereunder be, and they hereby are, vacated." ' The findings and conclusions of the Trial Examiner are based in part upon his credibility determinations to which the Respondent excepted. After a careful review of the record herein, we conclude that the Trial Ex- aminer's credibility resolutions are not contrary to the clear preponder- ance of all the relevant evidence and, accordingly , find no basis for disturbing them Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3). L In view of our determination herein, we find it unnecessary to con- sider and do not pass on the Trial Examiner's findings and conclusions in regard to the wage increases placed in effect by the Respondent after the election In view of our finding that the Respondent violated Section 8(a)(5). we shall dismiss the petition. H & H. Plastics Mfg Co., 158 NLRB 1395. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed on June 10, 1966, by Sheet Metal Workers' Interna- tional Association, Local 224, AFL-CIO, herein called the Union, the Regional Director for Region 9 of the Na- tional Labor Relations Board, herein called the Board, is- sued a complaint on behalf of the General Counsel of the Board on August 31, 1966, and an amendment thereto on September 13, 1966, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act.' Thereafter on September 28, 1966, the Regional Director issued his Supplemental Decision in Case 9-RC-6701, being a proceeding instituted upon petition of the Union, dated February 7, 1966, to determine by appropriate Board election procedures whether the aforesaid Union represented a majority of the Respondent's employees in a unit appropriate for the purposes of collective bargain- ing. In his Supplemental Decision, issued in response to the Union's objections to conduct affecting the results of the election, and to challenges of one of the ballots cast in the election, the Regional Director ordered a consolida- tion of both cases herein, and directed that, pursuant to appropriate rules and regulations of the Board, the issues not disposed of by him, the challenges of ballots having been satisfactorily resolved, be resolved in the hearing on the complaint herein. In its duly filed answer Respondent, while admitting certain allegations of the complaint, de- nied the commission of any unfair labor practices. Pursuant to notice a bearing was held before me in Dayton, Ohio, at which time the complaint herein was further amended. All parties were represented, afforded full opportunity to be heard, to present oral argument and to file briefs with me. Briefs were filed by all parties on November 29, 1966. Upon consideration of the entire record, including the briefs filed with me, and upon my observation of each witness appearing before me,2 I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Mink-Dayton, Inc., Respondent herein, is an Ohio cor- poration engaged in the design and fabrication of metal products at its Dayton, Ohio, plant. It annually sells and ships finished products valued in excess of $50,000 to The complaint was further amended at the hearing on Octobt r 25 ' "The failure of a Trial Examiner to detail completely all conflicts in the evidence does not mean . that this conflicting evidence was not con- sidered A `Trial Examiner is not compelled to annotate to each finding the evidence supporting it."' Bishop and Malco, Inc, 159 N LRB 1159. 166 NLRB No. 79 MINK-DAYTON, INC. points outside the State of Ohio. Upon these conceded facts I conclude and find Respondent to be an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers' International Association, Local 224, AFL-CIO, is conceded to be a labor organization within the meaning of Section 2(5), and I so conclude and find. III. THE ISSUES 1. Letters and speech as interference , restraint, and coercion. 2. Respondent's good-faith doubt of the Union's majority status. 3. The continuing nature of the Union's bargaining request. 4. The authenticity of the employee authorization cards. 5. The substance of objections to the conduct affecting the results of the election. IV. THE UNFAIR LABOR PRACTICES A. Sequence of Events The Union's first efforts to secure recognition as the bargaining representative of Respondent 's employees ended in defeat in a Board-conducted election on Febru- ary 5, 1965, the results of which were thereafter certified by the Regional Director in June 1965 . 3 After approxi- mately 7 months, in January 1966, the Union undertook a new organizing campaign , under the direction of its business agent, Millard Rodgers. The support of em- ployee Laurence Pack, was enlisted, and he, in turn, recruited employees Jesse Newsome. Melvin Knob. Keith Boggs , and Granville Prince to assist him in procur- ing signed union authorization cards from among the em- ployees. A meeting of the employees themselves was held on January 27, with Rodgers presiding . Then and thereafter a considerable number of signed authorization cards were obtained by the Union. These cards which form the basic substance of this proceeding will be con- sidered in detail hereafter (infra, section IV, C, 3). On February 7, 1966, Rodgers, in behalf of the Union, sent a telegram to Respondent 's president, Vincent Materese, requesting recognition of the Union as the bar- gaining representative of Respondent's employees. The substance of the telegram follows: THE SHEET METAL INTERNATIONAL ASSOCIATION AFL-CIO AND ITS LOCAL UNION 224 OF DAYTON OHIO REQUEST RECOGNITION AS BARGAINING REPRESENTATIVE FOR THE PURPOSE OF COLLECTIVE BARGAINING WITH RESPECT TO WAGES, HOURS AND OTHER CONDITIONS OF EMPLOYMENT FOR ALL PRODUCTION AND MAINTENANCE EMPLOYEES OF THE COMPANY EXCLUDING ONLY SUPERVISORS AND OFFICE HELP, WATCHMAN AND GUARDS AS DEFINED IN THE NATIONAL LABOR RELATIONS ACT OF 1947 AS AMENDED. THE UNION REPRESENTS A MAJORITY OF THE EMPLOYEES IN YOUR PLANT . IF YOU DOUBT WE REPRESENT A MAJORITY , WE ARE WILLING TO SUB- 605 MIT SIGNED REQUEST CARDS TO AN IMPARTIAL THIRD PARTY FOR VERIFICATION . REPLY REQUESTED. On the same date Materese rejected the Union 's request in a letter which reads as follows: This is in response to your telegram received by us on Monday afternoon February 7, 1966. In that tele- gram you asked that we recognize your union as the bargaining representative of our employees. Your telegram replied that a majority of our employees have signed "request cards." We sincerely doubt that a majority of our employees desires to be represented by your union . Only last June the Labor Board certified that a majority did not so desire . In these circumstances, we do not feel that cards are reliable to show whether our employees desire to be represented by a union, particularly since in our own experience claims of card majorities have not been substantiated by results of Labor Board conducted elections . In addition, we have had no indication that a majority of employees has changed their desires from that expressed in the Labor Board election last held. For the above reasons, we decline to recognize your union as representative of our employees . In addi- tion, it is less than 12 months since the National Labor Relations Board certified the results of the election which your union lost at our company. For this additional reason , we decline to grant the recog- nition you have requested. Following the receipt of Respondent's rejection the Union filed with the Regional Director, on February 14, 1966, its petition for an election in Case 9-RC-6701, sub- mitting in support of it the authorization cards referred to in its earlier telegram to the Company . These cards form part of the record in this proceeding , as does a list stipu- lated as constituting the names and addresses of the em- ployees for whom cards were submitted to the Regional Director. Following a hearing held upon the petition in Case 9-RC-6701 on March 15, 1966, the Regional Director, on April 8, 1966, issued his Decision and Direction of Election in the following unit found by him to be ap- propriate for the purposes of collective bargaining: All production and maintenance employees em- ployed by the Employer at its Dayton, Ohio plant, in- cluding inspectors, the timekeepers and group leaders but excluding office clerical employees, technical employees, outside salesmen and all guards, professional employees and supervisors as defined in the Act. At the election thereafter conducted on May 13, 1966, 77 of Respondent's 90 eligible employees voted , of whom 38 voted for the Union and 38 against it, with an additional ballot challenged. Subsequently, on May 20, 1966, the Union filed timely objections to conduct affecting the result of the election and at the same time withdrew its challenge to the 1 ballot , which action with respect to the challenge thereby revised the tally of 38 to 39 votes against the Union. These objections, after investigation by the Regional Director, have been consolidated by him 3 Case 9-RC-6192. 606 DECISIONS OF NATIONAL with the complaint case herein and will be discussed in detail hereafter (infra, sec. IV, D). B. Interference , Restraint, and Coercion It is alleged in the complaint and its amendments that Respondent engaged in interference , restraint , and coer- cion of employees by President Materese 's delivery of a speech to them on May 12, by a letter written to them by him on May 11, by certain statements made to them by Foreman Wesley Bryant during the period preceding the May 13 election , and by the institution of a wage increase among the employees during the month after the elec- tion.4 1. The letter and speech On May 11, President Materese sent a letter to each employee which read as follows: STRAIGHT TALK about your future at Mink-Dayton You people who are employed at Mink - Dayton can think for yourself, I am not going to insult your intel- ligence by replying to all the empty promises and the deliberate lies told by the union organizers in this campaign . Neither will I buy you beer or personally invade the privacy of your home in an effort to in- fluence your vote. Your future at Mink-Dayton is now in your own hands. You can keep it that way-or you can hand it over to the Sheet Metal Workers-or any other union . The question at issue is- Which is better for you? Forget me. Forget the company And consider carefully which is better-now and over the years ahead -for you and your family. WHAT CAN THE UNION GET YOU THAT YOU DO NOT ALREADY HAVE, OR CAN GET FOR YOURSELF" 1. Everyone got across -the-board increases during the past year Everyone got merit in- creases. With the union , merit increases would go out the window. And you'd have to negotiate thru the union for all other increases. If the union gets in, there will be no reprisals on the part of the company and we will bargain in good faith . But should negotiations fail, the union would have to back down or strike 2. You have a bigger, better major medical pro- gram, including hospitalization and sick care. This is our own program and better than Blue Cross and Blue Shield . (Did you know that some hospitals in Ohio are discontinuing their rela- tions with Blue Cross and Blue Shield9) 4 In addition to the tour alleged instances of unlawful conduct. counsel for the General Counsel introduced into evidence documents which it is claimed established a lack of good faith on Respondent 's part in his refusal to recognize and bargain with the Union Although counsel for the General Counsel and for Charging Party include in then respective briefs references to at least one such document, a letter dated March 23 as part LABOR RELATIONS BOARD 3 We were well on the way with a fine pension plan to be developed to meet your individual needs. But union activities forced us to drop all discussions . How can the union say they can get you a better plan when you haven 't heard the details of ours? Isn't that pretty ridiculous9 4. A big share of all profits now are being turned back to you in better wages, better benefits, and better working conditions. How can the union get you money which doesn 't exist or without actually endangering your future? The truth is that the union cannot guarantee to give you anything-however , it can guarantee to take away plenty. WHAT YOU WILL SURELY LOSE SHOULD THE UNION TAKE OVER. 1. Should the union take over , you will LOSE MONEY- dues, assessments , fines, and "spe- cial contributions" right off the top of your pay check , month after month after month. 2. You'll lose your right to complete a full day's work when there's nothing to do in the rigid job classification which the union sets up for you. 3. Should the union get in . you may also be threatened periodically with crippling strikes -long periods during which you'll get no pay at all , when customers may go elsewhere, and when you will be powerless to turn out equipment so urgently needed by the boys who are fighting in Vietnam (for the kind of freedom which the union is denying you) 4. Should the union get in , you'll be held in a straitjacket by a long involved legal contract. There will be no "ifs" or "but's You'll have to live up to a contract which fixes your wages, your job classification, the exact way which you move and turn. There's no flexibility and no place for reason and individual consideration in a legal document such as you'll have to sign- just to he able to pay dues' Should the union get in . you would no longer be a free and independent human being- but a slave in a chaingang, shackled by legal restric- tions and union rules. 5. It's one thing to have a boss-to whom you can talk back and with whom you can reason- and quit something else to have a big in- ternational union dictating to you from the out- side-calling the shots on dues, strikes , job clas- sifications . and transfers . It's true you can of the alleged independent violation of Section 8 (a)(I) I do not consider it as such at this point It will be considered as part of the alleged 8(a)(5) violation (infra ) for which purpose it was originally admitted into evidence, and in conjunction with the Union's objection to conduct affect- ing the results of the election (infra, sec iv, D) MINK-DAYTON, INC. 607 "grieve" to a union; but who knows when, if ever, they will listen? And remember, the more cases of arbitration, the higher your dues must go. USE YOUR FREEDOM WHILE YOU STILL HAVE IT You will be free on Friday to exercise the freedom guaranteed by federal law. You can remain a free and independent human being. You can avoid possible strikes, legal contracts, and month-after-month of dues-paying. You can avoid the possible loss of customers through prolonged strike activity. You can make sure that the boys fighting and dying in Vietnam will not be let down. You can prevent all this -you can protect your- self and your family-you can keep the way of life which gives you a full day's work at Mink- Dayton-by voting "NO" on Friday. I am sure that you have both the intelligence and the courage to make the right choice. And re- member, you can vote "NO" even though you may have signed a union card. A transcript of Materese's speech appears as Appendix A of this Decision and reference is made to it in its en- tirety. In their respective briefs, counsel for Generalt Counsel and the Charging Party excerpted certain por tions of this speech, claiming such to be evidence of viola- tions of Section 8(a)(1); thus in discussing the rigidity of a typical conditional sales contract and comparing it to a possible collective agreement Materese stated in his speech (Appendix A): So a contract isn't what it is cracked up to be. Remember there are two sides to a contract. If we should lose, and if we should have a contract in this plant, believe you me it is going to be binding, not only to the company but to you. You're not going to be restricted to the rules and regulations set up by the union. You're not going to have the liberties that you have now, and I know one thing, the contract is going to be a pretty big, legal mess of complications. Just like that contract for a television set. Pay it or lose it regardless of how many payments you made. if you don't make the next payment you lose it. There's no mercy in a contract. A contract is binding. So when they tell you you need a union contract, remember there's two sides to that contract. I know-what's in a union contract? I don't know what's in my union contract, if we get one here, and the union doesn't know what's going to be in that contract, because that contract, has to be negotiated. the union men have to sit upstairs with us and find out how much they can squeeze out of the stone, and they'll get as much as they can squeeze and no more. Thereafter reminding the employees of their present good working conditions and seeking to describe what would occur upon the advent of the Union. statements which it is claimed constituted threats of changed circum- stances, Materese stated: Now I want to warn some of you men who have never worked in a union shop, the fellows that worked in a union shop know all about this, but those who never have. I want to warn you of a few things. In a union shop there are no job transfers, everybody is classified. You got a job, that's it. I don't give a damn if it's putting a screw in a hole or sweeping the floor, when that floor is swept you have no right whatsoever to go put a screw in a hole for someone else, you got to go home. Remember that, job clas- sifications means that when we run out of work in that particular department we can't send big Jim, in- stead of assembling hoppers, we can't send him over to the cooler department. he's got to assemble hop- pers. When there's no hoppers to assemble, good bye Jim, we'll see you three or four days from now when we get another order for hoppers. That's one of things you will find in a union shop, for those fellows who haven't had experience working in one. The rules are strict. Boy, those rules are strict. Any rule that will be set up in this contract will be very strict. No violations. 1-2-3 bang, you're out. Just like that television contract I told you about a little while ago, you either pay up or lose the set. Nobody has mercy when there is a contract, both sides have to share in that contract. And in what are claimed to be threats of lack of access to management and the loss of opportunities to borrow money, Materese approached the conclusion of his speech, thus: One thing I ask you to do is, as you walk up to that voting place is to consider what- how the union is going to affect you, all these things I have been telling you. how it's going to affect you in your everyday work. Don't forget the dues. Don't forget they can only get what the company can afford, and the company is willingAo give everything it can af- ford without the help of the union. Why pay for it. Right now you are free to talk to the boss, some of you have and I thank you for that, I respect your backbone or whatever you call it, to have the guts to talk to the boss cause this boss is a simple guy and I appreciate your coming up to talk to me, and the peo- ple who have come up to talk to me have been pro- union as well as pro-company, but with the union you have no chance to talk to the boss, you talk to a couple of stooges and those stooges won't know a damn thing about what's going on. Those stooges will take orders from the big boss of the International who doesn't.give a damn about Mink-Dayton or anything else. The stooges will take order from the International. The stooges will be just stooges. There is nothing else to call them but stooges. They won't know what the hell is going on. They'll be taking or- ders, strict orders. Therefore you will have to talk with them you can't talk with the boss any more, you can't go upstairs and borrow 25 bucks without in- terest, you can't do this you can't do that, you got to go to the union and ask them for anything you want through a grievance committee, through a grievance situation, which sometimes it takes weeks and In quoting the allegedly offending excerpts of Materese's speech I have set forth the text with such preceding and following portions as I believe properly establishes the context. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months, and if the grievance is not proper it goes to arbitration in Cincinnati and might take 6 months there like it took 6 months to settle our election last year. Having in mind that campaigns vigorously prosecuted generate heat in words not merely on one side of the issue it would be appropriate to note certain of the remarks being uttered by representatives of the contending union contemporaneously with Materese's speech and letter. Thus in a flyer circulated among the employees prior to April 7, it was claimed that certain supervisory em- ployees had been reclassified in such a manner as to deprive them of their previously enjoyed authority, presumably to make them eligible to vote in the upcoming election. The flyer then commented: These old time and dedicated employees were kicked around for one purpose. That purpose was to allow them to vote. This type of treatment to faithful em- ployees may well backfire Mr. Materese. Nothing further in this record, including charges filed and challenges and objections made to the election, has lent any credence to this claim of impropriety I must, there- fore, necessarily assume it to be without substance. Similarly, in letters sent to the employees by the Union prior to the election, one signed by Rodgers, another un- signed, the tone of the campaign was certainly not im- proved. Thus with vituperation and an assortment of lan- guage more suited to a back alley fight it accused the Em- ployer of doubledealing, antiunionism, and favoritism, in- terspersed with other invective which President Materese claims was the provocation for the letter he wrote and the speech he gave. No point would be served by dignifying the Union's propaganda by reproduction here. It is suffi- cient merely to say that none of it justified Respondent in wallowing rhetorically on the same level.6 The Board's view of statements such as appear above in the quoted materials has been set forth in any number of cases involving coercive employer remarks. Such re- marks have most recently been characterized to con- stitute "a thinly veiled threat that the employees would suffer reprisals if the Union became the collective-bar- gaining representative."7 This finding was made in the context of a store manager telling an employee that in the event a union came into the store the employees' errors would be reported. Relating the essence of this finding to the statements made by the Employer herein I am left no alternative to a similar conclusion. Thus, there is a marked significance to such statements as "with the Union merit increases would go out the window," "union activities forced us to drop all [pension] discussions," "you'll lose your right to complete a full day's work when there's nothing to do in the rigid job classification which the union sets up for you." the union negotiators "will find out how much they can squeeze out of the stone; and they'll get as much as they can squeeze and no more," "in a union shop there are no job transfers," when your as- signed work is caught up "you got to go home," "any rule that will be set up in this contract will be very strict. No violations 1-2-3. bang you're out," "you can't go upstairs (to the office) and borrow 25 bucks without interest." These are not casual remarks, friendly conversation pieces, or words out of context. A review of President Materese's letter and his speech show them to be his esti- mates of what will occur if and when the employees select the Union as their bargaining representative. In such a context and in the current state of the law relating to Em- ployer statements the citation of further authority in this area is unnecessary to conclude and find that, irrespective of the Union's adolescent method of campaigning,8 Materese's statements were coercive, and as such con- stituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act, and I so conclude and find. 2. Foreman Bryant's remarks During the months immediately preceding the May election employee Brown Gwyn had frequent conversa- tions with Wesley Bryant, second shift foreman, on the subject of the Union. On these occasions, which Gwyn estimated to be two or three times a week for several months, Bryant would speak to him at his workplace and the conversation invariably would center about the Union. On some occasions it was Gwyn who initiated the subject matter, and on others it was Bryant. In this respect I do not credit Bryant's testimony that there were only approximately five such conversations and that Gwyn initiated each one. In the course of their discus- sions the subject of work classifications arose and Bryant repeatedly described what would happen if, under a union contract, all the work got caught up. In such cases, he would say, the employees with the least seniority would have to be sent home, "because you could not take a man off one job and put him on another." In this respect it is significant to note that under existing plant operating pol- icy employees whose work was caught up had an option of taking a temporary assignment to a lower rated job rather than lose the time. But, as Gwyn quoted Bryant, "if the Union came in he would have to get rid of the younger guys and just like me running this welding here, `you run these fifteen, sixteen, pieces out. I will have to send you home.' He would usually make the same state- ment." Furthermore, on cross-examination, Bryant him- self admitted to having a conversation with Gwyn con- cerning the effect on the Company's business if it had to raise wages and correspondingly raise the bids on the jobs they were seeking, suggesting that in such circumstances they could lose the work.9 There can be no doubt that implicit in Foreman Bryant's remarks is the fact that once the Union comes in and the employees are under a collective agreement they will be rigidly controlled in their work assignments, to their financial detriment, and indeed a union wage scale could result in such a loss of business that the unstated consequence would occur- jobs would be lost. Such statements, like those of the speech and letter previously considered (supra), sec. IV, B, 1, are not casual conver- sations'nor innocent speculations. On the contrary. they relate to the pocketbook of each employee who learns of them. To the extent that such an effect may be controlled by the advent of the Union it is interference, restraint, 6 Oak Manufacturing Company, 141 NLRB 1323, 1324, and fn 6 ' The Great Atlantic & Pacrfic Tea Company, Inc, 162 NLRB 1182. , Oak Manufacturing Company, supra s To the extent that Bryant contradicted the credible testimony of Gwyn I do not rely upon him I observed enough instances of his efforts to avoid answers to questions proponded on cross-examination to con- clude that he was not being completely forthright in his replies One in- stance of this impression of confusion was his description of what would happen to the work of spot welders under a union contract-namely, that when work ran out the welders would have to go home In his answer to the very next question Bryant testified that the spot welder, under the ex- isting arrangements, never runs out of work. MINK-DAYTON, INC. and coercion of employees in their right to select the Union if they so desire, and as such. constitutes what I conclude and find to be a further violation of Section 8(a)(1). 3. Wage increases after the election By amendment to the complaint at the commencement of the hearing it was alleged that Respondent had engaged in employee interference, restraint, and coercion by The conduct of the Respondent, subsequent to May 13, 1966, and continuing at all times thereafter, the exact date thereof being unknown to the Regional Director, in granting increases in wages to its em- ployee ... notwithstanding the fact that the Union's objections to conduct affecting the results of the elec- tion conducted by the Board on May 13, 1966, among said employees were pending for the Board. The record abounds with evidence of such increases. By one explanation they were the usual periodic variety. By President Materese's testimony they were to correct in- equities in existing wage scales, being a carryover from a previous company administration, and he further testified that a wage increase became imperative because of the competitive character of the local labor market. Union Representative Rodgers. when called as a wit- ness by Respondent. shed further light on the wage situa- tion. Thus he testified: One of the committeemen who is on the committee that the Company had set up told me that Mr. Materese would like to give them a raise and he would check with his attorney and see if he could. He didn't think it would be possible because the Union activities would prohibit him from giving them any raises or pensions or anything of that sort and this is what prompted this as I remember. He got the impression from employees that "the Com- pany was blaming the Union for all the wages" and that it could not do anything for the employees as long as the union matter was still pending.l" Specifically, employee Melvin Knob, one of those most actively working for the Union during the earlier campaign, came to Rodgers and told him that further union activity would only "cause us not to get any raises that we would normally get." As a consequence of this employee pressure, Rodgers. in a letter written to the employees early in June, stated in part: The Company stated in one of their letters to you that the Union was keeping you from getting a Pen- sion, intimating the Union was also keeping you from other raises. We of Sheet Metal Workers want to go on record as being completely in favor any raises, pension planes [sic] or other benefits the Company might want to give you at this time. (The Company will be notified of the above). General Counsel contends that in spite of the published assurance by the Union to the employees that it would not object to pay increases and its stated willingness to notify the employer that it had no such objections, the Company's compliance thereafter with the employees' request is still unlawful. This position, if accepted. places 10 Rodgers was presumably referring to the longstanding rule that wage increases granted even after an election had been held and lost, but where objections to it were pending as here, nonetheless would be considered a reward for rejecting the Union and an encouragement to do so in any fu- ture election, and therefore interference in violation of Section 8(a)(1) 609 the employer in a legally inextricable position-a box, so to speak. Some of these increases, it appears, were such as would normally have been granted at this time, while others were dictated, crediting President Materese's testimony in this respect, by an effort to reduce employee turnover in a scarce labor market. There is nothing in the record to suggest that had the Union not been in the picture these increases would have been withheld at this time. Under such circumstances it is highly conceivable that had the Company persisted in its refusal to grant the increases, stating as it did that the union matter prevented wage ac- tion, it could be deemed to have violated Section 8(a)(1) by withholding the increases, or indeed by so advising its employees." For if it is bad to so withhold an increase, Respondent might well have deemed to have com- pounded its wrong by telling the employees, as he did, that it was because of the Union. Indeed, General Coun- sel suggests as much in his brief. Conversely, it is well established that by announcing or granting wage increases after an election but during the pendency of unresolved objections to an election, as here, when there is possibility that a second election would be ordered, such action may be calculated to influence the employees' choice in the event of a second election.12 And certainly Materese's statement to the employees that the pending "union matter" prevented the granting of wages could, under the usual circumstances, be deemed equally coercive. Thus it is apparent that in the matter of wage increases in June, following the election, Respon- dent could have availed itself of no alternative that would remove at least the impression of interference, one way or another. All of this, of course, does not take into account the ac- tion of the employees themselves, and their representa- tive. The evidence is clear that the employees wanted the increase, asked for it, and demanded of the Union that it withdraw any objection it might have to it. Consequently if there be any interference with employees at this point, it is interference openly invited. Nor is the Union to be heard to object now to what it openly requested then. In sum, to view as employee interference the very wage in- crease which the Union requested would be a perfect ex- ample of "having one's cake and eating it." I accordingly conclude and find that nothing in these increases, requested and granted after the election, constitutes inter- ference, restraint, and coercion, and the Respondent has not violated Section 8(a)(1) of the Act in that respect. C. The Refusal to Bargain It is General Counsel's contention that the Union, upon its request to bargain and Respondent's refusal (supra), sec. IV, A, already represented a majority of the employees in the unit subsequently found to be ap- propriate for the purposes of collective bargaining (supra), sec.IV, A. This, it is claimed, can be established by the signed union authorization cards in the Union's possession. Accordingly, it is contended, because the Respondent's subsequent doubt of this claimed majority was not made in good faith, as indicated by subsequent This concept was most recently enunciated by the Board in Northwest Engineering Company, 148 NLRB 1136, 36,1145 11 See International Ladies Garment Workers' Union, 142 NLRB 82, 105,113 " Ambox,Incorporated, 146NLRB 1520 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawful conduct, and because the conduct was calcu- lated to destroy the Union's established majority, the Respondent thereby refused to bargain with the Union in good faith. Because the existence of this majority is a sina qua non for any finding of a refusal to bargain an analysis of the evidence upon which it is based is the first order of busi- ness. Preliminary to such an analysis, however, is the arithmetic determination of what constitutes a majority in this instance, and, with relation to the claim and denial, as of what date such a claim must be established 1. The date On February 7, 1966, the Union made its first demand for bargaining based upon a claim of majority status Thereafter, and upon Respondent 's refusal , the Union, on February 14, filed its petition for an election with the Re- gional Director and submitted to him signed cards sup- porting its petition At the hearing and in the bnefs submitted to me the determination of the critical date upon which majority status must be established was a highly contested issue. Indeed, a number of rulings made by me at the hearing impinged directly upon this issue. To the extent that these or any of them may conflict with my findings and concld- sions herein , made after a review of the record, study of the applicable law, and further reflection , they are deemed to be overruled.'' Three dates are significant . On February 7. 1966, the Union made its first request , on February 14 it filed its petition for an election among employees in the bargain- ing unit in Case 9-RC-6701, and on March 15 at the hearing in the representation case Union Representative Rodgers asked President Materese of Respondent if he would engage in collective bargaining to And it is stipu- lated that thereafter in the hearing the Respondent, through Attorney Modjeska , declined to recognize the Union as a majority representative of the employees in the bargaining unit Quite apart from Rodgers ' request of Materese earlier on this occasion it is implicit in Respond- ent's refusal to recognize that a request that it do so had been made of it and that the declination was in response thereto Any other interpretation of Respondent 's refusal at this time would be meaningless Viewing the filing of a petition as itself a request for recognition ,' -1 the Union, on dates between February 7 and March 15 , was requesting recognition as majority representative on a continuing basis and I shall accordingly adjudge the Union 's majori- ty status , as it existed during thus period, and accept as evidence of its majority cards dated between these two dates, inasmuch as on at least these three specific occa- sions during the period a proper demand may be deemed to have been made.' 6 2. The arithmetic The parties have stipulated that the total eligible voting complement in Respondent's plant as of February 7, 1966, was 89 employees. Accordingly, any computation to determine the majority status of the Union between February 7 and March 15, inclusive, will necessarily be based upon this figure. It is apparent, therefore, that to demonstrate its numerical majority the Union must establish that it had been accepted by 45 or more of the employees. 3 The signed authorization cards During the course of its organizing campaign the Union solicited signatures of the employees on cards which bore the following inscription SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION AFFILIATED WITH AFL-CIO AUTHORIZATION FOR REPRESENTATION I, the undersigned , hereby authorize the SHEET METAL WORKERS' INTERNATIONAL AS- SOCIATION, or any Affiliated Local Union thereof, to represent me for purposes of Collective Bargaining , and in my behalf, to negotiate and con- clude all agreements as to hours of labor, wages, and other conditions of employment. Cards, to a total of 24, were signed prior to February 7, the date of the Union's first request for recognition, by employees who credibly attested to their own signatures and to the date on which they signed the card," as fol- lows A. Abney Feb 1 K. R. Baer Feb. 2 J E Barrett Feb. 3 L. W. Blankenship Feb 2 Keith Boggs Feb 2 H. M. Cotterman Feb. 1 K. Crowe Feb 2 C H. Greer Feb 1 M Grigsby Feb. 2 Glen Inman Feb. 1 W Jackson Feb 2 M L Knob Feb 2 Robert Little Feb 2 H Martin Feb 2 J. H. McCoy Feb. 2 Jesse Newsom Feb. 1 Lawrence Pack Feb. 1 G Prince'' Feb. 1 R. Sage, Jr Feb. 2 II With respect to rulings made at the heating in,luding the reiecuon of exhibits offered in evidence, the transcript of the iccord will show that all such documents were placed in a file of elected exhibits at my direction after what 1 find to have been full litigation as to them and ample discus- sion of the applicable law The credited testimony of Rodgers See /sv Hill Litlint;taph (ompani, 121 Ni RB 811, 835 fn 13 Automata e Supple Co hu , 1 1 9 N I R B 1074 '^ Unlike the situation in A,nenc an C ompies sed ,ieel C oepoiation, 146 NLRB 1463, enfd 343 F 2d 307 (( A D C ), cited to me by the parties, the Respondent here questioned the majority from the seiy beginning Ac- cordingly, my holding of a continuing request for recognition is based on the three intervening requests, and not merely, as in Ameiuan Com- pressed Steel, upon the futility of making further demands after the initial one 17 Consistent with the discretion vested in me by the Board the wit- nesses called by the General Counsel were cross-examined fully on sou dire, with my permission, as to the circumstances under which they signed the authorization cards Bryant Cline tiny Grinder Company, 160 N LRB 1526 he record indicates that Princes card G C Exh 14-41 was identified on the record and offered into evidence After objection and i o0 dne examination, no further action was taken To correct this obvious oversight I rule upon review of the exhibit and all testimony respecting it that G C Exh 14-41 be admitted into evidence at this time MINK-DAYTON, INC. 611 J. Sauerland Feb. 2 E. W. Shelton Feb. 1 Ernest T. Smith Feb. 1 C. E. Spitzer Feb. 1 Roxford Stover Feb. 1 Each of the foregoing employees also credibly testified that they had either read the printed material on the card or were otherwise aware that the card was being signed "for the Union." None of them testified to an understand- ing that the signing of the card was for the sole purpose of obtaining an election. 19 In addition to the foregoing cards others were procured by employee-solicitors. Thus, employee Jesse Newsom credibly testified that he witnessed employees subscribe their signatures on authorization cards, on the dates in- dicated on the card, each employee having been advised by him that they were thereby authorizing the Union to represent them. These cards, to a total of 10, were for the following: F. E. Bremer Feb. 3 R. Fogt Feb. 2 Billy Joe Hamilton Feb. 4 L. Hamilton Feb. 2 T. L. Hayes Feb. 1 Lawrence Little Feb. 2 W. Little Feb. 3 James Newsom Feb. 2 M. Sauerland Feb. 1 C. S. Vaden Feb. 2 Employee Lawrence Pack, another solicitor, credibly testified that he witnessed employees sign their authoriza- tion cards on the dates indicated below. I have carefully studied Pack's testimony as he gave it, and thereafter as it appears in the record, and I am satisfied that the em- ployees from whom he received authorization cards un- derstood that they were signing the cards for the purpose supporting the Union and not merely to get an election .20 Pack procured the following three cards: T. Collier Feb. 3 Tex Johnson Jan. 31 C. Kanak Feb. 1 Union Representative Rodgers credibly testified that at a union meeting he personally witnessed the signing of a card by and received it from M. V. Sarver on Feb. 1.21 All of the foregoing cards, duly authenticated and found to be the purpose of selecting the Union as their representative, 38 in number, were signed and submitted to the Union prior to February 7, the date of the first request for recognition. In addition, a number of cards, under varying circumstances, were signed prior to February 15, 1966, the date of the filing of the petition in Case 9-RC-6701, which I have found to be a further de- mand for recognition (supra), sec. IV, C, 1. Thus. on February 9. 1966, employee Brown Gwyn's card was filled out and signed at his direction by his wife. He then gave it to employee Boggs from whom it was received by Union Representative Rodgers. as were all the other cards previously discussed herein. Gwyn's credited testimony clearly establishes that by signing the card he intended to designate the Union to act in his behalf.22 Employee Lawrence Pack credibly testified to having received from employees Dewey Crum and Harold L. Crum their signed authorization cards, each dated February 9. 1967.23 Employee Pack's credited testimony satisfies me that all employees from whom he solicited union authorizations were told it was for the support of the Union and not merely to secure an election. By way of summary and explanation, the Union sub- mitted 49 signed authorization cards to the Regional Director on February 14, in support of its petition in 9-RC-6701. Of these cards, 41 have been heretofore identified as to signature and date and I am satisfied, as noted previously, that each represents the respective em- ployee's selection of the Union prior to February 14 as their bargaining representative. It is to be noted that at the representation hearing on March 15, 1966, a further request was made (supra), sec. IV. C, 1, thus establishing what I have found to constitute a continuing request for recognition. Between this date and the earlier filing of the petition on February 14, four additional employee authorizations were received.24 Thus employee Leopold Boehn signed his card on February 23 in the presence of employee Pack whom I have already found to have informed the solicited em- ployees that the purpose of their signed cards was to select the Union to represent them. The card was given to Rodgers immediately thereafter.25 Employee Leroy Nation, who began work with the Company on February 7, 1966, signed his card on February 17 and conceded that he was familiar with the printed material on the card when he signed it.26 Employee Russell T. Stover, when called as a witness by Respondent, identified his union authorization card which he signed on February 20 and left in his open foot- locker where, by prearrangements, it was picked up by one of the Union's solicitors.27 Employee Elizie Tipton identified his union authoriza- tion card as the one he signed on February 20 and turned 19 "The wording of the authorization card is an important factor in determining whether an employee meant to authorize the Union as his bargaining agent. Where a card is clear on its face as designating the Union as bargaining agent, it is not subject to parole impeachment merely because the employee was told that the purpose of the card was to secure an election The card itself effectively advises the employee of the pur- pose to constitute the Union as bargaining agent " N.L.R B. v Sagamore Shirt Company, 365 F 2d 898,906(C A D C.) 11 Cf N.L R B v Sagamore Shirt Co., supra. 21 Rodgers credibly testified that throughout the union meeting at which Sarver signed his authorization card he displayed considerable interest and enthusiasm in the Union's activities From this it is clear that his in- terest in signing a union card transcended the obtaining of an election There is no evidence that he was told that an election was the sole purpose of the card N L.R.B. v Sagamoi e Shirt Co, supra 22 At the hearing, in line with my initial ruling that only cards signed on or before February 7, the date of the Union's initial request, would be ac- ceptable I rejected General Counsel's offer of Gwyn's card, Exhibit 14-18 and certain other cards, after full discussion. I now reverse this rul- ing and admit the card and such other cards as are hereafter discussed 2At the hearing each of these cards, G C Exhs 14-13 and 14-14, were admitted into evidence despite my rulings, since revised, that February 7 was the cutoff date By way of correcting an obvious error on my part I now reaffirm the admission of these two cards To the extent that any of these cards offered in evidence were re- jected by me pursuant to my initial ruling as to cutoff date (supra), I now reverse my ruling respecting them and hereby admit them into evidence, noting that I have fully considered all arguments in the record respecting their admissibility e The credited testimony of employee Pack N.L.R B. v Sagamore Shut Company (supra, fn 19) 27 He was given the card by employee Pack who instructed him in its disposition. Pack credibly testified that he received and turned in a number of signed cards which he could not otherwise identify at the hear- ing 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over to employee Baer, whose card has previously been considered and accepted by me upon his testimony that he had submitted his own card to one of the solicitors. This was one of the cards which Rodgers credibly testified he received after the filing of the petition. The foregoing 45 signed authorization cards established as being in the Union's possession on or be- fore March 15. I find each to have been properly signed and to represent the designation of the Union as the bar- gaining representative of those who signed their respec- tive cards. There are other cards that have not been so identified, to this point In addition to the ones enu- merated above the Union relies upon cards of the follow- ing employees signed on the dates indicated R. D. Adams Jan 31 R. N. Boggs Feb. 1 A. R. Herbst Feb. 2 W. H. Herbst Feb. 9 R. G Masters Feb. 1 W. D. Rodgers Feb. 2 F E. Viers Jan. 31 Union Representative Rodgers credibly testified that the cards for each of these employees were submitted to him on or shortly after the date indicated on the cards them- selves by the employees who were soliciting the cards among the employees, as their part in the Union's or- ganizing campaign. These solicitors, employees Pack, Jesse Newsom, and Prince each credibly testified, as did Rodgers, that the cards were procured upon their as- surance to the employees that the purpose was to authorize the Union to represent them.'" Submitted in evidence were the verified signatures of these .seven employees, specifically, Income Tax Withholding Ex- emption Certificates, each bearing their respective signa- tures I have carefully compared the signatures with the signatures on the respective authorization cards and in each case I find them to be an accurate reproduction I accordingly conclude and find the signatures on the cards of the above listed seven employees to be authentic '" Although these seven cards have not been identified by the employees who signed them Union Representative Rodgers credibly testified they were obtained in the course of the Union's organizing campaign in the same manner as were the others which I have already accepted. Having satisfied myself that the signatures are genuine and having heard no objection in that respect I am disposed to follow the Board's established practice in such matters and include the seven cards as valid designa- tions of the Union "i By way of recapitulation I conclude and find that the Union had in its possession 52 i1 valid employee designa- tions on March 15, 1966, when last it requested that Respondent recognize it as the representative of a majori- ty of its 89 employees for the purposes of collective bar- gaining. 4. Conclusions have found that in the bargaining unit found ap- propriate by the Regional Director in Case 9-RC-6701 there were 89 employees eligible to vote. To constitute a numerical majority 45 of these would be required to have authorized the Union to represent them. During the period between February 7 and March 15, 1966, 52 of them did so, having signed the authorization cards which I find to be authentic designations. It is well settled, of course, that an employer may insist upon a Board election as proof of a Union's majority, as Respondent did here; but it is equally well settled that it may not lawfully refuse to bargain "if its insistence on such an election is motivated, not by a bona fide doubt as to the Union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the Union."•12 Respondent specifically refused to verify the majority claim, as sug- gested by the Union, and by thereafter engaging in con- duct, set forth in detail earlier herein (supra), sec IV, B, 1, 2, 3, which I find to have been calculated to undermine the Union's claimed majority, and it consistently refused to bargain with the Union as the designated representa- tive of a majority of the employees. Because all of this clearly discloses that the Respondent's doubt of the majority lacked the good faith required and because I find Respondent has engaged in conduct constituting adequate grounds for setting aside the election, I con- clude and find that its failure and refusal to bargain was a violation of Section 8(a)(5) of the Act, and further interference, restraint, and coercion in violation of Sec- tion 8(a)(1).33 V. OBJECTIONS TO THE ELECTION In addition to the foregoing findings and conclusions upon which I shall base my recommendations for a remedy to the unfair labor practices committed I also have before me the Union's May 20, 1966, objections to conduct affecting results of the elections, objection 2 and 5 of which the Regional Director has referred to me for disposition. The objections referred to President Materese's May 12 speech (supra), sec IV, B, 1, and Appendix A) and his letter of May 11, to the employees, both of which I have already found to constituute em- ployee interference, restraint, and coercion The objec- tions also refer to Materese's letter of March 23, ad- dressed to the employees. The Union specifically ob- jected in this letter to the following paragraph We were making great progress on the pension plan- spending hours with your shop committee and in- surance companies working out the best type of plan for you Unfortunately, because of present union ac- tivities and legal restrictions imposed because of them, further work and discussion have been dropped A reading of this statement either alone or in the context of the Union's activity and Respondent's previously found conduct, clearly suggests to me, as it must have suggested to any employee who read it, that but for the "present union activities and the legal restraint imposed because of them" the employees would be on the way ( f N L R B v Sac'anun(,S hut vtpta l'hdanion Laboiato,ies , h( , 131 Ni RB 811 enfd 298 h 2 d 176,180 (( A 2) " I Janet & Son , 119 NI RB 910 912, enfd 2261 1 2d I. 4 (( A 7) t South Bar Dads B,ee;e, 160 NI RB 185 (1 In Henn Colder Curer pan, 163 NLRB 105. the Trial Examiner initially relied on the Board ' s earlier Taitel decision I find nothing definitive in the Board's oldet decision to suggest that I duel is not still the law .' I have not found it necessary in my computation to include the cards of employees Howard Stover, Eugene Inman orTommy Hardin '' lot Silk Mills, In, 85 NLRB 1263, 1264, enfd 185 F 2d 712 )( A D C ). Winn-Dixie Stores, In( , 143 N LRB 848 " Dee's of New Jertiev, In( , 161 NI RB 204 Ii,m y Air Chute Co, in( , 149NLRB627 MINK-DAYTON, INC. 613 towards "the best type of' pension plan. This clearly places the onus for a lack of pension plan upon the Union and could not but affect the Union, vis-a-vis the em- ployees faced with choosing or not choosing it as their bargaining representative in the scheduled election. Citation of authority is unnecessary to establish that such a published statement destroys the laboratory condi- tions which the Board deems necessary for determining the free choice of employees.34 I accordingly conclude and find that this letter of March 23. particularly in the portion quoted above, as well as the letter of May 11, and Materese's speech of May 12, which I have already found to constitute unlawful employee interference, restraint, and coercion (supra), sec. IV, B, 1, 2, 3, specifically interfered with the employee's free choice in the May 13, 1966, election. I accordingly recommend that this election be set aside and that Case 9-RC-6701 be remanded to the Regional Director for such further ac- tion as may be consistent with my other recommenda- tions herein. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above. occurring in connection with its business operation described in section 1, above, have a close, inti- mate, and substantial relation to trade, traffic. and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY It has been found that Respondent has violated the Act in certain respects. I will accordingly recommend that an Order issue requiring Respondent to cease and desist therefrom and to take affirmative action which will effec- tuate the policies of the Act. found will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of all Respondent's employees in the unit found ap- propriate and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Dayton, Ohio, plant, copies of the at- tached notice marked "Appendix B."36 Copies of said notice. to be furnished by the Regional Director for Re- gion 9, after being duly signed by the Respondent. shall be posted immediately upon receipt thereof, in con- spicuous places, and be maintained for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of the Trial Examiner's Decision, what steps it has taken to comply therewith. 37 IT IS FURTHER RECOMMENDED that Case 9-RC-6701 be severed from Case 9-CA-3950 and be transferred to the Regional Director for processing in conformity with this Decision. General Shoe Corporation, 77 NLRB 124. 05 In the event that this Recommended Order is adopted by the Board, the words "Recommended" shall be deleted from the caption and wher- ever else it thereafter appears , and for the words "I Recommend" there shall be substituted "the National Labor Relations Board Hereby Or- ders " 36 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's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals 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 the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend 35 that Mink-Dayton, Inc., its officers, agents. successors, and assigns, shall: 1. Cease and desist from: (a) Threatening more arduous working conditions or loss of employment or suggesting promises of benefits to its employees by letter or speech as inducements to their voting against Sheet Metal Workers' International As- sociation, Local 224, AFL-CIO. (b) Refusing to bargain with the aforesaid Sheet Metal Workers as the exclusive representative of employees in the following unit found to be appropriate for the pur- poses of collective bargaining: All production and maintenance employees em- ployed by the Employer at its Dayton, Ohio, plant, including inspectors, the timekeeper, and group leaders but excluding office clerical employees, technical employees outside salesmen, and all guards, professional employees and supervisors as defined in the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is APPENDIX A SPEECH DELIVERED BY PRESIDENT MATERESE ON MAY 12. 1966 Here we are again. We have a separate meeting this year between the day crew and the night crew and we are holding it earlier because there is a 24 hour law that says that we can't campaign 24 hours before the election time and you will notice up here it shows that the election starts at 2:30 tomorrow. So for the record and for the Na- tional Labor Relations Board and for the union let it be officially known that this is 12:30 in the afternoon not 2:30. Last year they claimed we were within the 24 hour limit which of course was proved to be a lie after the Na- tional Labor Relations Board investigated the situation but that's typical of the union, always was trying to do something to upset the apple cart. So I took time out last night to talk to the night boys rather than call them in early today. As a lot of you know, or should know, it is a very very difficult job to make a profit in the type of or- ganization that we are attempting to-run here. The reason for that is, that we have to bid for each and every job we have, and our prices are controlled by our competitiors who want work just as bad as we do, if not worse. Our competitiors are not in Dayton, our competitors are down south where most of them get away with paying a 308-926 0-70-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minimum wage of $1.25 an hour and we have lost many many contracts just because of that. I am sure through the years, at least the oldtimers know of contracts that we have lost under those conditions. So its pretty damn tough to conduct a business of this nature and make a profit and at the same time be continually heckled and bothered and made a fool of by a union who just won't give up. Now believe me fellows that's no fun. As I said before we have a very, very difficult job here in manage- ment and you fellows have a difficult job in production to keep the plant busy. It is Mink-Dayton and your work that make it possible for us to bid low enough to get enough work. It certainly is not the attempt or the job or the responsibility of the union to bring into this plant these contracts. We, ourselves, do it, your work and our bidding and trying to keep our costs down. If a union could guarantee us work, if the union would loan us money, if a union would give us contracts at a very very high price, I would be tickled pink to pay everybody $10 a hour with a $50 a week bonus. But that doesn't happen, you got to face reality. The union says in one of their notes that you fellows receive raises only when they're around. Well they've been around so long that you couldn't possibly receive raises without them being around; let's face it, we've been giving raises automati- cally on a merit basis, on many other bases through the years whether the unions were here or not, but as most of us know they are practically up here all the time so that they can make a statement to'you fellows that the only time we give a raise is when they are around. Good Lord they're never not around. That's not good English but I know you understand what I mean. Now I'm not going to insult your intelligence, I'm not going to insult your brain by attempting to argue all of the lies that the union and their local mouthpieces and stooges have tried to pass on to you, but there are a few things that I have to set the record straight on. These are statements that are actually stupid and ridiculous and childish. These are the ones that I feel I must comment on, to set the record straight. And the easiest way to do that, is to refer to one of the letters they sent you not too long ago. Can you still hear me? This is the letter that started out by saying "that Mr. Materese's letter of March 23 to you made it possible for you to agree very easily that I was living up to my B.S. degree that I received in 1941." Well after, B they had three dashes and after S they had three dashes now you and I know that means bull shit, and that is pretty child- ish. B.S. means Bachelor of Science in Engineering, for which I am very proud. The Local #224 said in this same letter "that the company in the last election agreed that 68 employees could vote and they said that the local reserved the right to challenge some of these votes and all of us including Mr. Materese knows that the National Labor Relations Board upheld the local's right to chal- lenge his supervision." Well this is a damn lie. The local National Labor Relations Board did not uphold their right to challenge these votes, that is why it took from Februa- ry, the day of the election until June 3 to confirm the fact that we had won the election because the National Labor Relations Board said you, union, have no right to chal- lenge those votes. "Votes" that they had agreed could vote, the people that they had agreed could vote, before the election, and then at the last minute when they got panicky and knew they were going to lose, they decided to challenge 'em. And when we went right back and chal- lenged them and the National Labor Relations Board, which has its good points from time to time, agreed that was a lie, that nobody had agreed to such a thing and the National Labor Relations Board, contrary to this letter, did not agree to that, but did agree that the votes were eligible. Lie number one. Why they lie is beyond me, I don't know, but maybe they got nothing else to sell. Then they said in this same letter that "the new Mink-Dayton ladder which the company is building is the same old ladder that the company can yank out from under you without a union at any time they wish." Well one good thing about this, is that they at least admit that we have a ladder that we have been climbing and those of you who have been around here for a long time know that that ladder has got awfully long from the old days. It is becom- ing a pretty damn tall ladder. Many of you know that years ago we just had a 2x4 place to work in. Practically no machinery, little or no work, 30 men. That ladder has continued to grow, and the important thing is, they not only admit we have a ladder but they say it is a ladder that we can yank out from under you. Well if we could yank this ladder out from under you how come in 10, 11 or 12 years we have grown the way we have. How come we have employees around here with 10, 12, 13, 14, 15 years records. If that ladder had been yanked we wouldn't have these people around here. That's another lie. We have never yanked the ladder, we will not yank the ladder and we never will yank the ladder, and that ladder believe you me, in spite of all, is going to get bigger and stronger and better. Then they say that "merit increases are to a chosen few. Have you received one?" Well, every darn one of you know that you have merit increases. Every one of you know that you have received many times across-the-board increases as well as merit increases. With the union you know there is no such thing as a merit increase. A smart guy doesn't have a chance with the union, he has got to work strictly on seniority. He can't get a raise until the guy beneath him gets a raise. Just because he knows a little more doesn't do a damn bit of good when the union's around. We can't even recognize good work when there is a union. Then he says here, "what is a helper classification to Mr. Materese, men who run drill presses and other machinery?" Yes, I admit in our company those are helpers, but what kind of helpers are they? Those are fellows who do not know much of anything. Those are fellows who have had a difficult time in getting a job any place else. Those are fellows whom we have taken time and money to teach how to run a drill press and a welding machine, and it is those same damn fellows after they get this experience, leave and go to work to NCR and Air Temp, where before that, they wouldn't even look at their application. Now is there anything wrong in putting a man with no experience and no knowledge on the drill press and teach him a trade? That's a stupid thing for them to say. Why do they say it, because they think they can convince you that we are a bunch of crooks around here, hiring skilled help at low wages. That is not true. Then Local 224 says that their in- surance plan paid out $46,934. They don't say to how many people. Hell, they may have 100,000 members. I don't know how many members they got but if they did have 100,000 that's only 50 cents a piece. Hell, our in- surance plan paid to just Joe Borgerding alone 3,500 to 3,600 dollars. That's another stupid statement. They show you a great big figure but they don't tell you what it means. $46,000 to how many people is the question you should ask. Again it is one of those half truths, half lies that they try to get you to believe. Then they say here "with the exception of the, of a few in the shop commit- tee, this committee could be considered a company com- mittee." Well who elects this committee? In a democratic MINK-DAYTON, INC. 615 way you boys have always elected the shop committee and I must tell you that from time to time you have elected some pretty lousy fellows for your shop commit- teemen. Some pretty poor punks you've elected. But you elected them, I didn't. Other times and most of the time, thank God, you've elected good workers, good people to represent you and your problems with the management. But the point is, it's a democratic way of electing a shop committee. It's not a company committee, you do the electing, we don't. I want you to know that, because you probably have read this letter. Boy, here's a good one. "The Company in using their so called free coffee breaks, use it as a tax deduction." Yeah, we do, absolutely, every damn expense that goes on in this company is a tax deduction. It is a tax deduction after you make your profit. You only pay taxes on profit. Up to last month we had made no profit, therefore that was not a tax deduc- tion. But how about the money they spend down at the beer joint for your beer? How about the money they spend for your liquor? They forgot to tell you that was tax deduction from a profitable outfit, where in fact the liquor was paid for by government because we know the unions are profitable. They don't have the guts to tell you that their coffee breaks or their beer breaks or whatever it is that they call it, are tax deductible. Oh yeah, "With a respectable wage employees at Mink-Dayton could receive the same gifts as the brownie point system by al- lowing you to buy a few more groceries and receiving trading stamps." This is absolutely untrue. Any TV stamps you get at Krogers you pay for because they have raised the price of that can of corn or that quart of milk to cover the cost of that stamp You know better than I do. Liberals, not too long ago gave up the TV stamps, because it raised the price of their material so high that they were losing business. So they gave up TV stamps and dropped the price of every damn canned goods they have of 2 to 3 cents a can. But in our case you don't have to buy anything to get brownie points. Those brownie points are donated free, absolutely free by the company out of the company's expenses. Those brownie points in- cidentally are worth 10 to 15 times more than a TV stamp. So I feel it is my duty to tell you that you shouldn't believe this kind of crap. "To quote Mr. Materese, we are rolling, we are progressing, we are getting more and more of the things a man wants for himself and his family." Then they say in a smirk way. "Like buying a building for the stockholders." So what if we buy a building. If we are lucky enough to buy a building without a down payment, if we are lucky enough to buy a building where the cost is no more than rent. What's wrong with that? It would be stupid, you'd think I was stupid if I didn't take advantage of that, here they try to make it a sin. Let me ask you what they do with your dues. They buy union halls. Why don't they bitch about that? Why don't they go and rent union halls? Then they say here "the company admits your good workmanship, your knowhow, and your skill in the highly essential fabricating of military equipment. This work has produced contracts for them, how much has it produced for you." I bet you know what it's produced boys, it produced jobs. Without these contracts we wouldn't have jobs. Half of you, maybe two thirds of you wouldn't be here, we'd be working strictly on railroad toilets and coolers and marine lavatories, and the 30 old- timers that we started with 15 years ago would be here making those not the rest of you fellows. So that is what this has provided for you. It has provided jobs. A couple of you fellows have asked questions about the pension plan that we had under consideration with your shop committee and incidentally your shop committee at this time is a damn good one, I congratulate you if you were responsible for electing them. But some of you brought up the question of a pension plan. Well I can't give you the details of the pension plan because that would be con- sidered a bribe. It is unfair however for the union to say that our pension plan is no good. We haven't had a chance to tell you what it is. Your shop committee knows what it is and if they haven't told you, then I'm sorry about that. But our pension plan actually provided full coverage to meet all of the employees. New ones and old ones. Even Gabe Wizelle would have retired within the year without putting any money into the plan. Why? Because the com- pany was willing to put out enough money to pay for all those nickels for the last 15 years of work of the older em- ployees. It wasn't going to come out of the pockets of the young fellows. Our pension plan included covering the oldtimers as well as the new, by the company's absorbing the cost of the oldtimers for every single hour they have worked for 15 years. But, we had to give it up until this thing blows over. Then they tell you, "you got to have a union contract to protect you." I wonder how many of you know what a contract is. But, I'll take that back. I bet a dime all of you know what a contract is, because a union contract is like any other contract. Just like a contract when you go downtown to buy a television set. That con- tract has two sides to it. That contract says the ABC com- pany is going to sell a television set and you, Joe, Bill have to pay for it, and if you don't pay for it, that contract is there to protect the guy that sold it to you. If you don't pay, you lose it. So a contract isn't what it is cracked up to be. Remember there are two sides to a contract. If we should lose, and if we should have a contract in this plant, believe you me it is going to be binding, not only to the company but to you. You're going to be restricted to the rules and regulations set up by the union You're not going to have the liberties that you have now, and I know one thing, the contract is going to be a pretty big, legal mess of complications. Just like that contract for a televi- sion set. Pay it or lose it regardless of how many pay- ments you made, if you don't make the next payment you lose it. There's no mercy in a contract. A contract is bind- ing. So when they tell you you need a union contract, re- member there's two sides to that contract. I know-what's in a union contract? I don't know what's in my union contract, if we get one here, and the union doesn't know what's going to be in that contract, because that contract has to be negotiated, the union men have to sit upstairs with us and find out how much they can squeeze out of the stone, and they'll get as much as they can squeeze and no more. So the union, absolutely, without any question, has no idea what's in this union contract that they are talking about, insofar as Mink- Dayton is concerned. And one thing you have to know, the union is not going to give you your wages, the union's not going to pay for your hospitalization, the union's not going to pay for anything, Mink-Dayton is going to pay for it all, and Mink-Dayton can only pay for what it can afford, and if they try to demand more than we can give you, then two things happen, either the union backs down and admits to you fellows that this is all we can get out of the company, we made a mistake, they are not as rich as we thought they were. But I doubt if they got guts to tell you that, so the only choice they have is a strike, when they can't get what they want, if they have promised you the moon. Now, so you do have a union, you do have a 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract, they do come upstairs and demand the impossi- ble, we can't give it to them, so they do have a strike because they don't have guts enough to admit it to you. What happens? Doors close, can't make shipments, we lost customers, how many? The Lord knows. Some customers may never come back. We lose contracts that I talked about before that make the jobs possible and if we don't get the contracts there's no jobs or not as many jobs if we don't get as many contracts, if we get none, then of course the doors have to close. This is not a threat in any way. I'm only telling you what happens when a situation like this would come up. There would be holdup of government orders for Vietnam and I don't give a damn how tough and rough you guys might be, down deep in your heart you feel sorry for those guys in Vietnam because a lot of you went to war and that is no fun and the work that we are doing here, 99 percent of it goes to Viet- nam. And there is one bad thing about this Dayton area, that is the Dayton unions seem to be strike mad. Just read the papers from day to day and see what they are doing. Now the oldtimers, at least most of them, will readily recognize and admit to the record of Mink-Dayton, they will admit that when this company made a decent profit that those profits were shared in the form of bonuses, cash bonuses. They will admit that we had the very very finest retirement plan in the state of Ohio, which they themselves voted out so that they could collect the cash that was in that fund. Checks were made out to people in this company as high as $2,800. Most of the people who voted that retirement fund out, wish they had it in now, but that's the way it goes. I can't control that. We con- tributed the money, it was yours, so therefore it was yours to do with what you wanted. The point is, that the oldtimers around here, at least most of them that are honest enough, will admit to the young men who do not know the record of Mink-Dayton, that this is a damn good company to work for. It is one of the few that is as liberal and as decent as you'll find any where, and we don't need a couple of union bosses out here with whips to make us human, all we need is the gumption and the guts to do the job. Now I want to warn some of you men who have never worked in a union shop, the fellows that worked in a union shop know all about this, but those who never have, I want to warn you of a few things. In a union shop there are no job transfers, everybody is classified. You got a job, that's it. I don't give a damn if it's putting a screw in a hole or sweeping the floor, when that floor is swept you have no right whatsoever to go put a screw in a hole for someone else, you got to go home. Remember that, job classifications mean that when we run out of work in that particular department we can't send big Jim, instead of assembling hoppers, we can't send him over to the cooler department, he's got to assemble hoppers. When there's no hoppers to assemble, good bye Jim, we'll see you three or four days from now when we get another order for hoppers. That's one of the things you will find in a union shop, for those fellows who haven't had ex- perience working in one. The rules are strict. Boy, those rules are strict. Any rule that will be set up in this contract will be very strict. No violations. 1-2-3 bang, you're out. Just like that television contract I told you about a little while ago, you either pay up or lose the set. Nobody has mercy when there is a contract, both sides have to share in that contract. Now, you've been given the information, the propaganda, the baloney, whatever it might be called, that the union is good for the people. Let me cite you a case that is right here at home. If a union is really out working for you guys, answer me this question. Why is the IUE trying to kick out the best union in the city at NCR. The NCR union gets more money, more working conditions for the NCR employees than any other union in the city. Why does the IUE want to kick out the NCR union? To help the people? Hell they got all the help they want now. Let's face it fellows they don't want to help you, they want your dues. They're not going to help you one bit because they can't help you they can only give you what the company can afford to give. NCR can af- ford to give what they do give. They give the play grounds, they give Ole River, they give all that good stuff under the jurisdiction of the union, which is a good union, it's not a dirty union, it's not a nasty union, it's a good union. So if unions in general were in favor of the worker then why in the hell is another union trying to kick them out. Certainly not to help the worker, let's face it, they want the dues. Oh boy, here's a good one, you know Mr. Hoffa, anyone ever hear of Hoffa? You know little Jimmy Hoffa, the guy who's got a noose around his neck, going to go to jail any day, you know what he said the other day at one of his meetings, this was printed in the Dayton paper April 8, he said we're going to raise the dues from five bucks to six bucks a month. I need 20.4 million dol- lars more a year to run my union. He gets $75,000 a year salary, according to the paper; probably hell of a lot more under the table, and then he went on and had the guts to say, of that 20 million he only wants one half of it. The other half you can keep at the locals. One more page of notes and we can quit. So in conclusion what I want to tell you is that your future in this company is in your own hands. You fellows have the brains and the intelligence to decide. You fellows have the ability to decide whether Mink-Dayton is an honest company with honest hard working people or whether we are a bunch of crooks salt- ing away the profits and living in mansions and driving Cadillacs and limousine with chauffeurs. You got the brains to decide that, or you got the brains to decide and believe what the union says is right, that the union can give you anything you want, all you got to do is vote for "us." I know you got the intelligence to decide correctly at least I'm sure that the majority has the intelligence to decide correctly. One thing I ask you to do is, as you walk up to that voting place is to consider what-how the union is going to affect you, all these things I have been telling you, how it's going to affect you in your everyday work. Don't forget the dues. Don't forget they can only get what the company can afford, and the company is willing to give everything it can afford without the help of the union. Why pay for it. Right now you are free to talk to the boss, some of you have and I thank you for that, I respect your backbone or whatever you call it, to have the guts to talk to the boss 'cause this boss is a simple guy and I appreciate your coming up to talk to me, and the people who have come up to talk to me have been pro-union as well as pro-company, but with the union you have no chance to talk to the boss, you talk to a couple of stooges and those stooges won't know a damn thing about what's going on. Those stooges will take orders from the big boss of the International who doesn't give a damn about Mink- Dayton or anything else. The stooges will take orders from the International. The stooges will be just stooges. There is nothing else to call them but stooges. They won't know what the hell is going on. They'll be taking orders, strict orders. Therefore you will have to talk with them MINK-DAYTON, INC. 617 you can't talk with the boss any more, you can't go up- stairs and borrow 25 bucks without interest, you can't do this you can't do that, you got to got to the union and ask them for anything that you want through a grievance com- mittee, through a grievance situation , which sometimes it takes weeks and months , and if the grievance is not proper it goes to arbitration in Cincinnati and might take 6 months there like it took 6 months to settle our election last year. Is that a way to run a business? Is that the way you fellows want to run your everyday job? So all I can say is , when you walk down to the voting place tomorrow think-think twice fellows, it is very, very important. It is very important to you, it is a hell, of a lot important to me too, to me as the manager of the company , but what- ever you do, you're going to have to live with it, and I want to warn those fellows who say this "let 's try it, let's try it to see how it might work out," well let me tell you this, I warn you, once you get the union in, boy, you got a hell of a job getting them out. The record of getting them out is almost nil, so any of you who got th° idea "let's try it" I'm warning you that if you try it and you don't like it, you're not going to get the union out. What you going to have to do if you don't like it you is go somewhere else I guess . So all I want to do now is say thanks for listening and I want you to sincerely believe and depend on the old timers to tell you that Mink-Dayton is an honest company that we aren't hiding anything. That what we say is the truth, the record shows that. We can only give what we can afford, the future looks good and so when you go up there tomorrow, I'm asking you all to vote "no." Now, don't forget I'm asking for "No." They're asking for "yes." "No" is the important one. So thanks a lot for your time, and good luck. APPENDIX B with the loss of employment to induce you to vote against the Union. WE WILL NOT, by letters or speeches , promise you benefits to induce you to vote against the Union. WE WILL, upon request , bargain collectively with Sheet Metal Workers' International Association, Local 224, AFL-CIO, as the exclusive representa- tive of all the employees in the bargaining unit described below concerning rates of pay, wages, hours of employment , and other conditions of em- ployment, and, if an understanding is reached, em- body it in a signed agreement . The bargaining unit is: All production and maintenance employees em- ployed by the Employer at its Dayton, Ohio, plant, including inspectors , the timekeeper and group leaders but excluding office clerical em- ployees, technical employees , outside salesmen and all guards, professional employees and su- pervisors as defined in the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce you in the exercise of your rights to self-organization or to form , loin, or assist any labor organization, or to bargain collec- tively with us concerning terms or conditions of em- ployment through the representative you select, or to refrain from any of these activities if you so choose, except as these rights may be affected by a contract validly made under the National Labor Relation Act, whereby membership in a labor organization is a con- dition of employment after the 30th day following the date of the contract or the beginning of a person's employment, whichever is later. You and all our employees are free to become or remain, or to refrain from becoming or remaining, mem- bers of or withdrawing membership in any labor organiza- tion. MINK-DAYTON, INC. (Employer) NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our em- ployees that: WE WILL NOT, by letters or speeches , threaten you with unpleasant or more arduous working conditions to induce you to vote against Sheet Metal Workers' International Association , Local 224, AFL-CIO. WE WILL NOT, by letters or speeches , threaten you 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, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3663.