The Mather Co.

THE MATHER COMPANY The Mather Company , Fluorotec Division and Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 7-CA-5713 and 7-CA-5881 June 25, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS , AND ZAGORIA On July 24, 1967, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding , finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer 's Decision . Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a supporting brief, the General Counsel filed cross- exceptions and a supporting brief, and the Charging Party filed a brief in opposition to the Respondent's exceptions. The Respondent also filed an answer to the General Counsel 's cross-exceptions. 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 proceeding 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 proceeding, and hereby adopts the findings ,' conclusions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. While we agree with the Trial Examiner 's conclu- sion , we do not adopt his rationale.2 As more fully set forth in the Trial Examiner's Decision , the Union represented a majority of the ' We do not agree with the Trial Examiner that the Respondent violated Section 8 ( a)(I) of the Act when John Rutter , Respondent's plant con- troller and personnel man, explained to the employees that the advent of the Union would mean that if the Union secured its desired contract strict departmental seniority would be established which would prohibit the Respondent from making interdepartmental transfers as it had done in the past, thus causing layoffs . We view these statements , in the context in which they were made , as expressions of what might happen , and therefore find that they did not constitute threats within the meaning of Section 8(a)(1) of the Act 253 employees in the appropriate unit on July 28, 1966, when the Union requested recognition. Thereafter, by letter dated August 1, 1966, the Respondent in- formed the Union it could not recognize it as col- lective-bargaining representative until its represent- ative status was established by the Board. The Union thereupon filed a representation petition with the Board. On August 19, 1966, the Respon- dent consented to an election, which was held Sep- tember 9, 1966. However, beginning on August 1, 1966, and continuing until the election, the Respondent, as detailed in the Trial Examiner's Decision , engaged in acts of unlawful interrogation. Timely objections to the election were filed by the Union and, on December 13, 1966, following an in- vestigation, the Regional Director issued a Report on Objections, in which he set aside the election and directed a second election. Whereupon, the Respondent, as detailed in the Trial Examiner's Decision, engaged in further unlawful conduct by announcing to the employees that they would be granted certain fringe benefits. An employer may in good faith insist on a Board election as proof of the union's majority, but it un- lawfully refuses to bargain if its insistence on such an election is motivated by a rejection of the collec- tive-bargaining principle or by a desire to gain time within which to undermine the union.' The question of motive is, of course, one which of necessity must be determined in the light of all rele- vant facts in the case. We find that Respondent's refusal to bargain with the Union was motivated by a desire to create the opportunity to dissipate the Union's majority. In reaching this conclusion, we rely on the facts that Respondent prior to the election engaged in unlaw- ful systematic interrogation and after the election unlawfully granted fringe benefits. This conduct, and particularly the grant of benefits after the direction of the second election, we find, was not only designed to induce employees to repudiate the Union, but insured that it would be impossible to hold a fair election.' Accordingly, we find that the Respondent's refusal to recognize the Union was motivated by it desire to gain time in which to un- dermine the U;iion's majority status and that such conduct is violative of Section 8(a)(5) of the Act. Member Brown , in agreement with the Tnal Examiner, would find that these statements constituted threats and were violative of Section 8(a)(1) of the Act. 2 Member Jenkins agrees with the rationale of the majority in finding that the Respondent has violated Section 8 (a)(5) of the Act, but he also would adopt the Trial Examiner 's rationale. 'Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F.2d 732 (C A.D.C.), cert denied 341 U S. 914 ' Ralph Printing & Lithographing Co., 158 NLRB 1353, 1354. 172 NLRB No. 28 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the Respondent, The Mather Company, Fluorotec Division , Milan , Michigan , its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner 's Recommended Order, as modified herein: 1. Add the following as paragraph 1(b), the present paragraphs 1(b) and 1 (c) being relettered as paragraphs 1(c) and 1(d): "(b) Granting new fringe benefits , or other benefits, as inducements to employees to withdraw or withhold their support of the Union named below or any other labor organization ; provided, however, that nothing herein shall be construed to require the Respondent to rescind or discontinue new fringe benefits , or other benefits, already granted." 2. Add the following as the last paragraph in the Trial Examiner's Decision. "IT IS HEREBY FURTHER ORDERED that the petition for certification of representatives filed by the Peti- tioner in Case 7-RC-7555 be , and it hereby is, dismissed, and that all prior proceedings held thereunder be, and they thereby are, vacated." 3. Add as the third substantive paragraph in the notice the following: WE WILL NOT grant new fringe benefits, or other benefits , as inducements to employees to withdraw or withhold their support of the above or any other labor organization. How- ever, nothing herein prevents, or is intended to prevent , our continuing in effect new fringe benefits, or other benefits, previously given to you. TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner : A charge was filed by the International Union , United Automo- bile, Aerospace and Agricultural Implement Work- ers of America (UAW), AFL-CIO, herein the Union , on September 15, 1966 , against The Mather Company, Fluorotec Division , herein Respondent. An additional charge by the Union was filed against Respondent on January 20, 1967. The instant proceeding was heard on an order consolidating cases, amended complaint , issued by the General Counsel of the Board under date of March 14, 1967. The hearing was held in Ann Arbor, Michigan , on April 26 and 27, 1967 , before Trial Examiner Ramey Donovan . All parties were represented by counsel and participated in the hearing. The complaint alleged that Respondent had refused to recognize and to bargain with the Union as the bargaining representative of Respondent's employees although the Union represented a majority of the employees in an appropriate unit and although Respondent did not have a good-faith doubt of the majority status of the Union. It is further alleged in the complaint that Respondent refused to recognize and to bargain with the Union by engaging in specified conduct to undermine and to dissipate the Union 's majority status . The con- duct referred to as interfering with the rights of em- ployees as guaranteed in Section 7 of the Act and as undermining and dissipating the Union 's majority status was : coercive interrogation by three named supervisors of employees concerning the em- ployees' union membership, activities, and desires; threatening employees by a named supervisor with layoffs if the Union was successful in its organizing efforts; granting a substantial increase in its con- tribution towards the cost of an existing Blue Cross- Blue Shield hospitalization plan of its employees at a time when a representation proceeding was pend- ing before the Board , including objections to an election that had been held, and after the Board, through its Regional Director, had issued a Report on Objections, Order Setting Aside Election, and Direction of Second Election . The complaint al- leges that the aforedescribed conduct of Respon- dent violated Section 8(a)(1) and ( 5) of the Act. Respondent has filed a general denial to the com- plaint allegations. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the fol- lowing: FINDINGS OF FACT 1. JURISDICTION The Mather Company is an Ohio corporation with its corporate office in that State. The Fluorotec Division is one of several divisions of the corporation. The Fluorotec Division has an office and plant in Milan, Michigan, and this plant is the only facility involved in this proceeding. Respondent has other plants in Michigan and in Ohio . The Milan plant is engaged in the processing of Teflon into custom- made products and in the sale and distribution thereof. In a representative year, Respondent, at its Milan plant, manufactured, sold, and distributed products valued in excess of $400,000, of which products valued in excess of $50,000 were shipped from said plant directly to points outside Michigan. Respon- dent also purchased and caused to be transported and delivered, at its Milan plant, goods and materi- als valued in excess of $50 ,000 that were trans- ported directly from points outside Michigan. Respondent is an employer engaged in commerce THE MATHER COMPANY within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES The Milan plant opened in 1962 and has been in operation since that date. The Union commenced its organizing campaign about July 1966. In that month, the union representative, Dovelle, gave 40 or 50 union authorization cards to employee Otis Kanitz, a machine operator employed at the plant. According to Kanitz' uncontroverted testimony, Dovelle "told me to hand them [the cards] out and have the people sign them if they were interested in organizing." Around the same period, evidently to explain the general procedure to the employees, the union representative stated, at a meeting sponsored by the Union, that "he would write a letter to the Company saying they [the Union] had a majority of the people that signed cards [and] ... if the Com- pany did not believe it was true that a majority of the employees wanted to be represented by the Union, he would show the cards to the Company so they could see them and validate the signatures."' The authorization cards that the employees signed during the union organizing campaign read: 255 In the opinion of Examiner, there can be no doubt of the meaning of the cards since the wording is both simple and clear. The following employee witnesses identified the cards that they had individually signed on the dates shown: Riley, July 22; Krupa, July 29; Webber, July 22; Goupill, July 22; Cline, July 22; Every, July 23; Trail, July 25; O. Kanitz, July 22; Smith, July 22. Employee Riley testified that on July 22 during lunch hour, in the ladies' restroom at the plant, em- ployee Margaret Smith handed out union authoriza- tion cards to female employees who were present. Riley received three cards, one of which she filled out and signed, supra. Riley, later on the same day, gave the other two cards to Avery whom Riley re- lieved on her job when it was time for Avery's lunch period. Riley testified, without contravention and credibly, that she saw Avery sign her card and Avery handed it to Riley on July 22. The extra card given to Avery by Riley was for Wood, who had the same job as Avery but on a succeeding shift. Although Riley did not see Wood sign her card, Wood herself gave her card to Riley and the card was filled out and signed when handed to Riley. Both the cards of Avery and Smith are dated July 22 and bear what appear to be genuine signatures.2 The Examiner regards the cards of Avery and Wood, as well as the nine employees previously referred to above, as valid union authorizations. Authorization to UAW Date.... .... .... . ... . . . ....... ............... authorize UAW to represent me in collective Print Name bargaining. ................................................................................ Address-No. Street City Phone No. .................................................................... . Class of Work Hourly Rate Clock No. Dept. No. Shift Employed By ....... ................................. ............................ Company Address .............oy.ee.............. Signature of Empl (over) The reverse side of the card read: This card will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours, and working conditions. ------------- --------- -- - -- -- - - - - - -- - - --- YOU HAVE THE RIGHT UDER FEDERAL LAW TO ORGANIZE AND JOIN A UNION ---------------------------------------------------------------------------- By joining the UAW-AFL-CIO you have the support of one of the world's largest Unions. ' Krupa, a Teflon molder at the plant, gave the foregoing uncontroverted other writing although it is apparent that the Company must have had testimony regarding the union representative 's statement at the meeting. documents in its files bearing signatures of its employees ' No evidence was offered to contest the genuineness of the signatures or 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Every, in addition to identifying his own card, dated July 23, above, testified that he gave a card to another employee , Burgess. A few days later Burgess handed his completed card to Every and Every identified the card at the hearing. The Burgess card is dated July 25. Every also gave some cards to employee Schwartz for distribution. Subsequently, employee Kuntz handed a filled-out card to Every. The latter identified the card at the hearing as that which bears the signed name , Luella K. Kuntz, dated July 2 3. We reiterate, with respect to these two cards, our observation , above , regard- ing the cards of Avery and Wood, and we find the Burgess and Kuntz cards to be valid designations of the Union. Employee Otis Kanitz testified that he gave a card to his cousin , employee William Kanitz, telling the latter that if he was interested in organizing to fill it out and sign it . Subsequently , William Kanitz returned his card to Otis Kanitz . Otis Kanitz testified that he was sure that no cards returned to him were blank or unsigned . William Kanitz' signed card is dated July 28. Otis Kanitz testified to sub- stantially the same effect as above regarding the cards of employees Rathbone (card dated July 22); Waltz (July 23); Canine (July 22); and Thornton (July 22). The cards of William Kanitz, Rathbone, Waltz , Canine , and Thornton are in our opinion, for reasons previously stated, valid union authoriza- tions. Margaret Smith , an employee , testified that on July 22 she had a supply of authorization cards. In the ladies ' restroom at the plant, on the morning of July 22, she told named employees that she "had the organization cards and that they could get them at noon ." Smith gave cards to employees McKeever, Southward, Bevier, Van Loon, and Hudson , inter alia, in the restroom on July 22. Each of the foregoing individuals signed a card and handed it back to Smith on that occasion. Smith glanced at the signed cards as they were handed to her, placed them in her purse , and looked at them when she arrived home that evening . She testified that all these cards had been filled out and signed. Smith identified the cards at the hearing. McKeever's card is dated July 22; Southward, July 22; Bevier, July 22; Van Loon, July 22; and Hud- son, July 22. Later, in the afternoon , on July 22, Smith, in the restroom, gave a card to Cathelene Smith. The latter subsequently returned the card to Margaret Smith in the restroom and Margaret Smith ob- served that it was filled out and signed . Margaret Smith identified the card at the hearing . It is dated July 28. Margaret Smith 's testimony is to the same effect regarding the card of Margaret Markgraff, which is dated July 26, and the card of Imogeny Oyer, dated July 27. For reasons previously stated, the Examiner finds the cards of McKeever, Southward, Bevier, Van Loon, Hudson, Cathelene Smith, Markgraff, and Oyer to be valid union authorizations. In addition to testimony aforedescribed, Mar- garet Smith testified that she kept the cards that she received in her purse which was constantly in her possession . She then gave the cards to Kanitz. Every testified that he promptly gave any signed cards that he received to Kanitz. Kanitz testified that he kept signed cards that he received in his toolbox at work and then took them home and mailed them to Union Representative Dovelle. In addition to the 26 valid cards that have been described, there is the card of Shirley Yoakum. Margaret Smith testified that she gave a card to Yoakum at the time she gave cards to Cathelene Smith, Trail, Oyer, and Markgraff. Yoakum's card, completed, signed, and dated July 26, was returned to Smith by an unidentified female employee who purportedly found it in the restroom. The General Counsel stated at the hearing that Yoakum " is una- ble to be here as a witness for personal reasons." At the General Counsel's request, Respondent furnished Yoakum 's termination slip, dated April 20, 1967, from the Company's files. The slip bears Yoakum's signature . A comparison of this signature with that on the union card dated July 26, 1966, leaves no doubt in the Examiner 's mind , albeit he does not purport to be an expert in the field of handwriting, that the two signatures were written by the same person. Notwithstanding this fact, we regard the circumstances of what can reasonably be regarded as the signatory's nondelivery of the card to the Union, or to its representative, or to anyone else for that matter, as casting an ambiguity over the validity of this card as a designation of the Union. The matter is arguable both ways but we do not count Yoakum's card as a valid designation of the Union. Another aspect that we have considered before arriving at a conclusion that the Union had 26 valid cards authorizing it to act as the collective -bargain- ing representative of the signatories of the cards is as follows: As previously mentioned, the union representa- tive, Dovelle, stated at a meeting that the procedure was that he would write to the Company stating that a majority of the employees had signed union authorization cards . He also said that if the Company did not believe this assertion he could show the cards to the Company and afford the Company the opportunity to verify the signatures on the cards. Since it is fairly obvious in any union campaign that there is no certainty, one way or the other, as to whether an employer will recognize a union on the basis of cards or on any voluntary basis, the possibility of a Board election is present. There is no reason to regard the word "election " as a legally unmentionable topic and it was not regarded as such in the instant case. Dovelle did refer to the topic of an election in a conversation with Kanitz. Dovelle said that "to hold an election," the Union should have more than a majority , about 60 per- cent, of the employees signed up in the Union. THE MATHER COMPANY However, it is clear from Dovelle 's speech at the meeting that the primary purpose of the cards was to have a majority of the employees sign them, designating the Union as their bargaining represen- tative, so that the Union could request and, hope- fully, secure recognition as bargaining agent from the employer on the basis of having signed cards from a majority of the employees. Indeed, when Dovelle gave Kanitz the cards for distribution he told the latter "to hand them out and have the peo- ple sign them if they were interested in organizing [interested in organizing themselves into a union; interested in having a union represent them as bar- gaining agent]." The cards themselves are unmistakably clear and evidence adduced on cross -examination of some employees by Respondent, in our opinion , does not alter the unambiguous significance and meaning to be attached to any employee's act of signing such a card. Kanitz testified that when he gave out the cards to employees he told them that "if they were in- terested in organizing to fill it out ; fill out the card and sign it and give it back to me." On cross-ex- amination , Kanitz' attention was called to an af- fidavit of his in which he said that he did not know and did not know "to this day" how cards are ..used to secure an election ."3 He said, in the af- fidavit, that several days after he had passed out cards and, at a time when most of the signed cards had been returned to him , many employees discussed the union subject with him. The affidavit stated , that he , Kanitz, did recall saying , on the sub- ject of an election , that a majority of signed cards would have to be secured to have an election.4 On cross-examination , employee Riley was asked , "What was the card [the union authorization card] for?" She answered , "To authorize for the union that we wanted representation by the UAW." She was also asked , "What was told to you?" and answered , "That we wanted to get a union to represent us." The witness was asked specifically what was said in the ladies' restroom and the 3 Kanitz was a rank-and-file employee . There was nothing in his testimony or in his demeanor that impressed the Examiner that he pos- sessed any sophistication in labor law procedure or labor law matters. His knowledge in this area was quite apparently of a limited nature. ' Respondent's counsel followed this procedure : he secured Kanitz ' affir- mation that the latter had signed the affidavit; counsel would then indicate a particular portion of the affidavit to the witness and ask him to read it into the record ; the witness would do so ; then the same procedure would be fol- lowed as to another section of the affidavit. Thus, 0. How about this one here? A. [reading from the indicated portion of the affidavit] I might have told Smith and Every, when I gave them the cards, that the cards would be used for holding an election , but I cannot remember that I did. I feel that I may have. The topic , statements made by Kanitz to employees, was thereupon aban- doned and counsel went on to another topic . Initially, on cross-examina- tion , Kanitz denied that he told anyone that the cards "were to hold an election." He then was asked to read portions of his affidavit as described above . He was not asked to affirm or deny his testimony or the portions of the affidavit which he read into the record at counsel 's request and he did neither. On redirect examination by the General Counsel with reference to Kanitz' statements on cross-examination wherein he read from his affidavit 257 answer was that Margaret Smith said , "They were trying to get a union to represent us."5 Employee Goupill testified that Smith said at the time that she did not have to sign the card but that the Union would represent the employees if it won an elec- tion. Respondent, in its brief, refers to the testimony of Goupill , above, and the testimony of Every. The latter testified that Kanitz gave him a card in the plant which he took home and read . Every then filled out and signed the card at home and returned it to Kanitz. The card was signed on July 28. In September, Every was made a foreman . Also in that month, when he was a foreman , Every stated in an affidavit that Kanitz had told him that "if we signed the card it would give the union a better idea of who was interested in getting a union at the plant." According to Every, Kanitz also stated that "if enough people signed cards ," they could vote on the Union in an election. It is Respondent's contention that there was misrepresentation by the Union and employee or- ganizers and that the employees were told "that the purpose of signing the cards was to get an elec- tion." The Examiner has set forth the evidence as to statements made by Dovelle , Kanitz, and Smith. We will not repeat this evidence other than to refer to Dovelle 's statement at a union meeting and the evidence of Kanitz, Smith , Riley, Goupill, and Every. It is our opinion that the basic theme throughout the organizing and to the employees was that if you wanted to organize and to have a union represent you at the plant, you signed a card. Conversely, those who did not want to organize, did not sign cards.6 While Dovelle stated that recognition would be sought from the Company on the basis of a majority of signed cards (and the Union did make such a request to the Respondent on July 28, shortly after securing signed cards from a majority ), the possi- bility or the need of resorting to an election was un- doubtedly present. There are few organizing situa-, regarding statements about an election , the witness was asked, "Were these questions asked of you [by employees] before you gave the card to an em- ployee, or at the time you gave the card to the employee , or were they asked after the cards had been signed . A. They were asked after the cards were signed." On recross examination- 0. Can you swear that you only talked about these cards being used to obtain an election after most of them were signed? A. Yes, I can swear to that. Kanitz said that he might have talked to his cousin , William Kanitz, about an election beforehand but on further redirect examination he stated that at the time he gave the card to William Kanitz he told him that "if he was interested in organizing to fill it out and sign it." Still on recross examina- tion, Kanitz affirmed that statement in his affidavit to the effect that, in the next few days after he had distributed cards , many employees spoke with him and he told some of them that to have an election a majority of signed cards was necessary. ' The reference to the restroom was a reference to activity in that room on July 22 when Smith gave cards to about eight female employees , includ- ing Riley and Goupill, both of whom, among others, signed cards at that time and returned them to Smith. s Of 40 employees in the unit, apparently many did not sign cards since only 2 6 signed cards were introduced in evidence 354-126 O-LT - 73 - pt. 1 - 18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions where the election route can be ignored. An election was mentioned by various people as we have described previously. Cards are used in such connection. But in our view of the evidence, par- ticularly because of the clear, simple language of the cards themselves, the employees understood that signing a card was a designation of the Union to represent the signers for collective-bargaining purposes. The mention of an election was not a misrepresentation and no one was told that signing a card signified only a desire for an election. Ac- cordingly, we find that, as of July 28, 1966, the Union had valid designations from 26 employees in an appropriate unit of 40 and that the 26 cards designated the Union as the collective-bargaining agent of a majority of the employees in the unit. By letter of July 28, 1966, the Union wrote to the Respondent, stating that a majority of the em- ployees in the appropriate unit had designated the Union as the exclusive bargaining representative. The Union requested a meeting for collective bar- gaining and also offered to prove its majority by having the signed cards verified by a mutually selected third party. The Respondent replied by letter of August 1, 1966, stating: We acknowledge receipt of your letter dated July 2 8, 1966. We cannot recognize you as bargaining representative until your represent- ative status is established by the National Labor Relations Board.' It is apparent from Respondent's letter of August 1, set forth in full above, that Respondent refused recognition to the Union on the sole ground that the Union had not been certified by the Board pur- suant to an election , or, stated otherwise, the Respondent refused recognition until the Union had itself certified by the Board in an election. The Act, of course, could have provided that an employer is under no legal obligation to recognize and to bargain with a union as collective -bargaining agent unless the Union has first been certified in a Board election . The law as presently written and in- terpreted , however, imposes no such requirement. The representative "designated or selected for the purposes of collective bargaining by a majority of the employees in a unit appropriate for such pur- poses, shall be the exclusive representative of all ' By letter of August 1, 1966, the Union stated to Respondent the names of 10 employees whom the employees in the unit had selected as an Or- ganizing Committee Again, by letter of August 3, the Union informed the Respondent of the names of 16 additional employees who were acting as organizers for the Union . Two more names were added in a letter of August 9 Sec. 9( a) and Sec 8(a)(5) of the Act " N L R B. v. Trimfit of California, Inc, 211 F 2d 206, 209 10 See also Joy Silk Mills, Inc , 85 NLRB 1263, 1264, enfd as modified 185 F 2d 732, 741 (C A D C ), N L R B v Southeastern Rubber Mfg. Co , Inc, 213 F 2d I I (C A. 5), United Mine Workers of America v Arkansas Oak Flooring Co , 351 U S 62, 74-75, N.L.R.B v Elliott-Williams Co , 345 F2d460(CA.7) 11 The limited nature of the qualification is borne out by the statement of the employees in such unit for the purposes of col- lective bargaining," and it is a violation of the Act "to refuse to bargain collectively with the represent- atives" so designated or selected.' The terms of the Act, being as described above, could have been interpreted as follows: When a union claims to represent a majority of the em- ployees in an appropriate unit and requests recogni- tion and bargaining from an employer, the latter refuses recognition and bargaining at his peril, if, in fact, the Union does represent a majority by reason of its "designation or selection" for bargaining by a majority of the employees in the unit. The Board and the courts, however, have qualified the interpretation of Section 9(a) and Section 8 (a)(5) in one respect. In the light of the statutory language itself in these two sections of the Act, as explained hereinabove, it is evident that neither the Board nor the courts were at liberty to depart very far from the plain language of the Act. They have, over the years, imposed one qualifica- tion, to wit, that, if an employer has a good-faith doubt as to the union's majority, he may refuse to recognize the union until its claim is certified by the Board in an election. As well expressed by the Court of Appeals, Ninth Circuit,' in language par- ticularly pertinent to Respondent's refusal of recog- nition on August 1 in the instant case: Respondent contends that it had no duty to bargain until the union had established its majority status in a Board election. There is no absolute right vested in an employer to de- mand an election.... If an employer in good faith doubts the union's majority, he may, without violating the Act, refuse to recognize the union until its claim is established by a Board election. A doubt professed by an em- ployer as to the union's majority claim must be genuine . Otherwise the employer has a duty to bargain and may not insist upon an election. 10 We again reiterate that the statutory obligation of Section 9(a) and Section 8(a)(5) permits but limited qualification and that qualification has been restricted to the situation where the employer has a good-faith doubt of the union 's majority and refuses recognition for that reason.[' We view the Board's the Sixth Circuit Court of Appeals to the effect that "good faith is not available as a defense to a charge of refusal to bargain where the refusal is based on an erroneous view of the law" (Old King Cole, Inc. v. N.L.R B., 260 F 2d 530, 532 ), and an employer's good faith but erroneous belief that the unit requested by a union is inappropriate (United Aircraft Corporation v, N L.R.B., 333 F 2d 819, 833 (C A. 2), cert. denied 380 U S 910; Florence Printing Co v N L.R.B., 333 F 2d 289 (C A 4)), or that the union representatives were under a legal disability that prevented them from binding the union (N L.R.B. v. Burnett Construction Co , 350 F.2d 57 (C.A 10)), or that its employees were independent contractors (N L R B. v Keystone Floors, Inc , dlbla Keystone Universal Carpet Co , 306 F 2d 560, 564 (C.A. 3)), does not constitute a valid defense to a refusal -to-bargain complaint, where the record otherwise establishes that the union is the duly designated representative of the employer's employees. THE MATHER COMPANY 259 decision in the Serpa case 12 as a clarification of the burden of proof, to wit, that it is the General Coun- sel that has the burden of proving that the employer did not act in good faith or acted in bad faith. 3 If language is to receive the normal and obvious construction , Respondent refused to recognize and to bargain with the Union on August 1 because the Union had not been certified by the Board. For reasons previously stated , including citation of the Act and pertinent decisions , there would appear to be a violation of Section 8(a)(5) of the Act on Au- gust 1 since the Union represented a majority in the appropriate unit as of that date . However, perhaps if we explore , in the light of the evidence, why Respondent took the foregoing position, we may perceive something that would render the stated refusal to recognize less untenable as a legal defense. The General Counsel and the Union assert that Respondent refused recognition to the Union in order to gain time to undermine the Union and to defeat it in an election that the Respondent was requiring as a prerequisite for recognition. Prescinding from these allegations , we shall, ar- guendo, construe the evidence of Respondent's con- duct, subsequent to its August 1 refusal to recog- nize the Union , in the light most favorable to Respondent. Admittedly, after refusing recognition to the Union , Rutter, Respondent's controller and person- nel man, and Wachle, the general manager of the plant, made plans to talk to all the employees in- dividually about the subject of having a union in the plant. 14 The plan was put into operation but, after calling in a number of employees to their offices and talking to them about the Union , further inter- views were discontinued on the advice of counsel. However , the least that can be said about the plan and the interviews that did take place was that an effort was made to persuade employees that they should not have union representation at that time. That was the purpose and intent of the plan and its activation.'' It scarcely comports with a good-faith doubt of majority, a defense raised belatedly at the hearing. The effort was made to persuade em- ployees, including those who had signed cards, to abandon the Union so that, presumably, in a sub- sequent election , that the Respondent had, in ef- fect, demanded as condition for recognition, the Union would be defeated.1e Even on our foregoing assumption , arguendo, that Respondent simply engaged in legitimate per- suasion, this conduct does not obviate the refusal to bargain of August 1. The law does not provide that an employer may refuse recognition to a majority union and demand an election and certification so that the employer may have time to campaign, even by legitimate persuasion , against the union among its employees. Yet this, in the light most favorable to Respondent, is what the evidence shows to be the fact in the instant case. If Respondent went beyond legitimate persuasion and engaged in illegal interrogation and threats in the period after August 1, its position is even less defensible. But for present purposes we have sought to demonstrate the legal untenability of Respondent's position even with respect to its own contention that it engaged in no more than peaceful persuasion among em- ployees with respect to not having union represen- tation. It was at the instant hearing that Respondent stated that it had a good-faith doubt of the Union's majority when the Union requested recognition. No such assertion had been made to the Union at the time Respondent refused recognition on August 1, 1966, and the refusal of recognition at the time was not premised on good-faith doubt.17 We shall, however, proceed on the assumption that the General Counsel has the burden of proof to demonstrate in the record that Respondent did not have a good-faith doubt of the Union's majority on August 1 and that, in refusing recognition, Respon- dent acted in bad faith. As indicated, Respondent raised its good-faith doubt-of-majority defense at the hearing. Thus, the following was adduced by Respondent's counsel in questioning his witness Rutter , the plant controller and personnel man: Q. Did you have a good-faith doubt as to their [the Union's] majority status at that time? [August 1, 1966]1 [objections by the General Counsel and the Union to the question were overruled] THE WITNESS: Yes, I did. Q. Why? A. Number one, this [the July 28 letter of the Union claiming to represent a majority and requesting recognition ] is the first that I really knew of any union activity , and I was somewhat surprised. I didn 't know a small plant like ours-first of all, I didn't think the union would even be interested . Secondly, I 'Y John P. Serpa, Inc., 155 NLRB 99 A refusal to recognize and to bargain with a union designated or selected by a majority is, as we read the Act, a violation of Secs 8(a)(5) and 9(a) of the Act except in the well-established and long-accepted situa- tion where there is a good-faith doubt as to the union's majority by the em- ployer. 14 Straits, the production manager, also interviewed employees in his of- fice on the union subject. 1' The General Counsel and the Union contend that there was illegal in- terrogation and threats but we are assuming, arguendo, only legitimate per- suasion, which is Respondent's contention. The most common approach to individual employees was not , whether they had in fact designated the Union as bargaining representative-this was apparently known and assumed-but, "why do you want a union." " Cf Polish National Alliance v. N L.R.B, 136 F.2d 175, 181 (C.A. 7), affd. 32 2 U S. 643, where the Court observed, " it seems an employer is in an unfortunate position in attempting to justify before the Board its refusal to bargain for a reason that apparently did not occur to it prior to the time of the hearing." In Bernard S Happach v. N.L.R.B., 353 F.2d 629 (C.A. 7), the court held that an alleged good-faith doubt, not expressed at the time of the refusal to bargain, was not available to an employer as a defense to an 8(a)(5) complaint (fn. 7 of the Decision). 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD felt our people were fairly well happy, and as we were progressing we were doing what we could for our people. The foregoing , which is the sole evidence ad- duced to support the contention that, on August 1, when Respondent refused to recognize the Union, it had a good-faith doubt of the Union's majority, is unconvincing. While it may be the fact that Respondent in good faith was surprised that the Union had engaged in organizing Respondent's em- ployees and was claiming that it represented a majority; that Respondent "felt our people were fairly well happy"; and that Respondent felt that it had been doing what it could for its employees, these factors, individually or collectively, do not establish Respondent's contention that it had a good-faith doubt of the Union's majority. It is our opinion that Respondent, on August 1, in rejecting the Union 's bargaining request for the foregoing reasons or because it believed that it could refuse recognition until the Union had been certified, vio- lated Section 8(a)(5) and (1) of the Act. Subsequent to its refusal to recognize the Union, above, Respondent received two additional letters from the Union. The first reiterated the claim of majority and then enumerated the names of 10 em- ployees who had been selected as the union "Or- ganizing Committee ." At the hearing , Respondent's counsel asked Rutter whether he had received the foregoing letter. The answer was affirmative. The witness was then asked whether at that time he had a good-faith doubt of the Union's majority. A. Sure. There were only ten people, and we had-I think it is in the record-forty or something like this that were eligible in the unit. The Examiner is unable to understand how the fact that there were only 10 employees on the Organiz- ing Committee would give rise to a doubt of majori- ty in the unit. The letter made it clear that: (1) a majority of employees in the unit had designated the Union as bargaining representative ; (2) that 10 named employees were on the Organizing Commit- tee; (3) (being the evident purpose of naming the members of the Committee) to wit, "The afore- mentioned persons and others ... are protected by Section (7) of the Labor Management Relations Act . [against interference or discrimination because of their union activities]." The next letter from the Union to Respondent, dated August 3 , repeated the preceding letter's contents, including the 10 employees on the Or- ganizing Committee , plus the names of 16 other employees described as "in-plant organizers." After receipt of the August 3 letter, Rutter testified that he went to employee Rathbone in the plant and spoke to him because Rathbone had been listed in the August 3 letter as an "in-plant or- ganizer." Rutter said to Rathbone , "Roy, I hap- pened to notice your name on this list and I was rather shocked you would be in this group." Rutter states that Rathbone "indicated to me " that he had signed a card because he wanted to get along with his fellow workers and not antagonize them. It is apparent that Rutter opened the conversation by manifesting his shock and evident disapproval of Rathbone's association with the Union . Either in response to such an approach or because Rathbone was expressing his own feelings, the latter responded as described. It is a fact that certain peo- ple buy a new car, a color television, or go on strike, or vote for a particular political candidate or party, not solely because of some objective per- sonal analysis of their own needs or belief but because they are in some degree affected by what their relatives , friends, coworkers, business as- sociates, customers, and so forth do and say. The desire to go along with peer groups is not unusual and is a factor in human motivation. Such factors are also present in elections, political or otherwise. There is no evidence that Rathbone did not read his card before signing or that he did not understand it or that he was threatened or coerced. He signed his card on July 22, the first day of card signing in the union campaign, when it would seem that any pres- sure to conform would have minimal impact. His al- leged indications of motive were disclosed to Rutter only after the latter had sought him out and had first stated his, Rutter's, surprise and shock that Rathbone had associated himself with the Union. In any event, an employee's subjective thinking , in sig- ning an authorization card clear on its face, is not determinative. Another employee named in the Union's August 3 letter as an "in-plant organizer " was William Kanitz. Some time after August 3, Rutter ap- proached this employee and spoke to him as he had spoken to Rathbone, namely, expressed shock that Kanitz was associated with the Union. Rutter states that the employee told him that he believed, when he signed the card, that it would lead to an election and people could vote for the Union if they wanted it. Based on these conversations with Rathbone and Kanitz, Rutter states that he had a good-faith doubt of the Union 's majority. We regard the circum- stances, aforedescribed, as not affecting the fact that these two employees had voluntarily signed union authorizations , clear on their face, regardless of what the two employees, in response to Rutter's tendentious statements to them, stated their subjec- tive beliefs or feelings to be . They did not deny hav- ing signed cards . Moreover, it is clear that whatever professed doubt Rutter had as a result of these con- versations, it did not arise until after August 3. This was, of course , after Respondent, on August 1, had refused to recognize the Union. Respondent having refused to recognize the Union, as described hereinabove , the parties, on August 19 , 1966, entered into an agreement for the Regional Director of the Board to conduct an elec- tion on September 9, 1966. In the interim , from its refusal to recognize the Union on August 1 and the date of the scheduled THE MATHER COMPANY election, September 9, Respondent engaged in the following activities: Production Manager Straits , who had hired em- ployee Webber on July 16, 1966, summoned her to his office about July 20. He told her that she was to receive a merit wage increase . 18 Straits then asked her if she had any "gripes." She said , no, and Straits then said , "Well, why do you want a union, then?" Webber said it was because she wanted more money . Straits thereupon discussed the matter of wages with her. A few days later, Foreman Watkins asked Webber , "What gripes or complaints do you have about the plant? ... why are you wearing the [union ] button, because you want to , or just to go along with the girls?" Webber replied that it was because she wanted to . Watkins said that later on there would be more raises for everybody and conditions would be better at the plant. It is evident that Straits had no doubt that Webber wanted the Union in the plant (". . . why do you want a union, then?"). Webber signed a card on July 22, and was named as an in-plant or- ganizer in the Union's August 3 letter to Respon- dent. The incident has a bearing on Respondent's prior refusal to recognize the Union since, thereafter, it can at least be said , as we have previ- ously observed , that Respondent started question- ing union adherents as to why they wanted the Union, being apparently aware that such employees did in fact want the Union. In the middle or latter part of August , employee Riley was told by her foreman that she was wanted in Rutter's office . When she arrived , Rutter said, "we know why we both are here." He then told her that the Company "wasn't ready for a union as yet." The incident indicates an employer campaign to undermine the Union . Rutter was aware at the time that Riley was on the Union 's Committee and the evident and only purpose of his remarks was as we have stated above. Around the same period in August , Foreman Watkins asked employee Goupill why she wanted a union and what her complaints were . 19 He told her of another plant where the people had secured a union and afterwards they worked just as hard and were paid the same as prior to the union. About August 12, employee Cline was sent to Rutter's office when her foreman told her that the latter wanted to see her. Rutter asked her why she wanted a union and said that the Company was too young to have a union and could not afford a union . He said that sometime in the future a union might be all right. On September 8, the day before the election , Foreman Watkins spoke to Cline who was wearing a "vote UAW" button. Watkins said, "What is a nice girl like you wearing a dirty button " The General Counsel expressly stated that this and other wage in- crease matters are not alleged to be illegal in this case. 11 Goupill had been listed as an "in-plant organizer" in the August 3 letter to Respondent. 261 like that for? . . . You just wait. This company is so great if this union doesn 't get in Monday morning you will get a raise, you will all get a raise. 1120 We repeat our observation, that Respondent embarked on a campaign against the Union after having refused recognition of the Union until an election was held and the Union was certified. Employee Krupa, in the same period, was told by his foreman that he was wanted in Rutter 's office. Rutter asked why he wanted a union.21 Rutter said that he felt that the Company did not need a union as yet and that a union would not be helpful although eventually a union might be all right. Rutter then took Krupa into the adjoining office of the plant's general manager . The latter discussed with Krupa the subject of a raise which Krupa had indicated was due him. About 2 weeks before the election, employee Every was called to Straits' office about a raise. Every's foreman and Straits were in the office. Straits asked Every if he could think of any reason why the employees wanted a union. This incident adds emphasis to the fact that Respondent ap- parently was convinced that the employees did want a union albeit Respondent had refused to recognize the Union. Rutter testified that on various occasions in Au- gust, he did speak to employees in his office on an individual basis. Among the employees thus spoken to were Cline, Krupa, Riley, and Althoff. He testified that the question of union organization in the plant was so important that he felt it necessary to speak to the employees. In speaking to the em- ployees, Rutter testified, that "my main point was that we would lose the needed flexibility that we had in a small plant such as ours" if the Union came in. Rutter states that he explained to the em- ployees in the interviews that, currently, in the plant without a union, the Company did not lay off employees if there was a shortage of work in a de- partment; instead of a layoff in the foregoing situa- tion, the Company would transfer employees to another department; but, if a union came in, Rutter told the employees, it was his experience that the Union would seek or have contractual departmen- tal seniority and "we [the Company] could not transfer people, then we could have no other choice than to lay them off." Rutter states, "I asked them [the employees] to carefully consider this." Rutter and Straits did not deny the testimony of the employees, described previously. Watkins did not testify. We credit the testimony of the em- ployees and we credit Rutter in that we find that he also said to the employees what has been described above as his testimony. We believe that Rutter's testimony establishes "The General Counsel reiterated that the matter of raises was not part of the allegations against Respondent. " Krupa was on the Organizing Committee and was named as such in the union letters to Respondent dated August 1 and 3 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he told the employees, in substance, that without a union there were and would be no layoffs when work was slack in a department, but that the advent of a union would mean, if the Union secured the contract it desired, that there would be strict departmental seniority, which, in turn, would prevent the Company from making interdepartmen- tal transfers and would require layoffs instead. The fact of layoffs in slack periods, as contrasted with the existing situation , was stated as a substantially definite prospect, if the Union came in. Obviously, Respondent, being the employer, would have to ac- tively participate in the decision and the act of lay- ing off employees instead of transferring them to other departments in slack periods . As presented by Rutter, Respondent would do all the foregoing if a union came in . Stated with such definiteness and with virtually imperceptible or no qualification, an economic detriment was thus presented by Respon- dent to its employees if they adhered to the Union and brought it into the plant as their bargaining agent 22 We consider the foregoing presentation to the employees to be a violation of Section 8(a)(1) of the Act. As to the various incidents , previously described, of employees being individually ordered to manage- ment's office and there being asked why they wanted a union, we regard Respondent's conduct as follows : Respondent was not engaged in a simple inquiry to determine whether the Union did represent its employees and whether Respondent should therefore recognize the Union . Respondent had already refused to recognize that the Union represented a majority of its employees . Further, Respondent knew that the people it called to its of- fice were union adherents since its questions were not whether the individuals had joined the Union, but why they had done so. In the circumstances, a question from management to an individual em- ployee as to why he or she wanted the Union is a good deal more than a academic search for infor- mation ; and it certainly is not the expression of opinion under Section 8 (c) of the Act. Since management has stated its opposition to having a union at the time, the question , why do you want a union , immediately places the employee on the defensive and called upon to explain or justify to management his or her union adherence . If Section 7 or Section 8(a)(1) of the Act , in providing that employees may or may not join unions or engage in union activities without "interference " from the is Rutter testified that "there had been no layoffs whatsoever" in the plant since he had been there , since August 1965 . Assuming, arguendo, that Rutter could so confidently predict what terms the Union would ask for in this plant or what terms it would secure in a contract to which the Com- pany would have to agree , departmental seniority would not result in layoffs in a plant such as this with "no layoffs whatsoever " The latter situa- tion indicates no overall lack of work . Departmental seniority comes into play when there is a lack of work in one department , X, and a vacancy in another department , Y. A has worked for the Company 5 years in depart- ment X but there is now a lack of work for him in X and he is the junior man in X. However, B had worked 4 years in Y and had previously been employer, mean what they say, we believe that Respondent was interfering with the free exercise of these rights. The signing of a union card or join- ing a union is peculiarly a matter for the employee and it includes a reasonable degree of privacy. The Act, in our view, does not contemplate that the em- ployee be called upon by the employer to justify such action to the employer. Regardless of how an individual employee may answer such question, either forthrightly or by hedging (e.g., I only signed a card because I wanted to be a good fellow as far as my fellow workers were concerned), no one can say that the natural inhibiting tendency of such questions will not have their eventual intended ef- fect of undercutting union adherence. We are of the opinion that such conduct is violative of Section 8(a)(1) of the Act. Under the circumstances, we also believe that such statements, as why is a nice girl like you wearing that dirty (union) button, merits the same comments and conclusion. An em- ployee may wear a union button without being placed on the defensive for doing so or be called upon for justification. Such remarks are not simple inquiries or searches for legitimate information; they are virtual indictments calling on the employee to justify impliedly delinquent conduct, whereas, in fact, the employee, having exercised a statutory right, should be protected from such interference with the right. The election was held on September 9, 1966, and the vote was 15 for the Union; 22 against; and 1 challenged ballot. The Union filed objections to the election on September 15. After investigation, the Regional Director of the Board, on December 13, 1966, issued Report on Objections, Order Setting Aside Election, and Direction of Second Election. As stated by Respondent 's counsel in oral argu- ment at the close of the hearing , when Respondent was advised, around December 14, 1966, that the objections to the election had been upheld and that a second election would be held, "The decision was made as of that time" by Respondent to announce to the hourly paid employees (who were the em- ployees in the unit ) that, as of January 1, 1967, it would put into effect, at its expense, new benefits, consisting of life insurance, accidental death and dismemberment insurance, accident and sickness insurance; and would increase the Company's con- tribution to Blue Cross-Blue Shield from 25 percent to 50 percent.23 About December 15, 1966, Respondent distributed letters to its employees an- laid off for lack of work Because of his departmental seniority in Y, B would have preference over A for the vacancy in Y, despite A's overall greater seniority But, if there was no B in the picture , and there was a vacancy in Y, A, assuming the necessary ability, would normally be trans- ferred to Y, even if there was departmental seniority . Why would the Union require the employer to hire a new man from the street for the vacancy in Y and require the layoff of A" u In addition to the pending second election as directed by the Regional Director on December 13, the General Counsel had issued an original com- plaint against Respondent on December 8, 1966, alleging illegal interroga- tion of employees in July, August , and September 1966 THE MATHER COMPANY 263 pouncing the foregoing . The program was put into effect on January 1, 1967. In explanation and in justification of its action in announcing and putting into effect substantial new and increased employee benefits while a second election was pending, Respondent introduced cer- tain evidence. Southworth, a supervisor in February 1966 and at the time of hearing , testified that in early 1966 he was the spokesman for employees with manage- ment. In this role, in February 1966, he told Rutter that "we needed fringe benefits " and Rutter told him "they" were taking it up with the home office of the Company and would see "what they could do for us at the time." Southward states that, at the time, he reported the foregoing to "some" unidentified employees. Zammit, then secretary-treasurer of Respondent corporation, testified that in February 1966, he and Rutter discussed the need of fringe benefits at the plant and felt that they should be given because of the tight labor market and also that improvements should match the Company 's progress. Rutter states that in March or April he told Southworth that fringe benefits were under consideration . On April 6, 1966, Zammit wrote a memorandum to Mather, the corporation 's president, recommending fringe benefits for the plant . Zammit gave various reasons, including the tight labor market, and stated, "While the situation may not be extremely serious, we should be sensitive to manifestations of dissatisfac- tion and talk of 'unionism."' This precautionary concern about unionism, of course, occurred at a time when the Union or any union was not in the picture. Presumably, if a union was on the scene, as in July 1966 and thereafter, the foregoing thinking and motivation would have even more pertinency on the issue of motivation for action taken at the time a union was present. The recommendation of fringe benefits for the plant was rejected by the corporation in April 1966. Zammit testified that the plant was losing money at the time and the general manager of the plant, Wachle, had opposed instituting fringe benefits on that ground. The corporation, accord- ing to Zammit, decided to go along with Wachle's position, and wait "until the financial situation looked a little bit better." Neither Zammit nor Rutter had talked to any em- ployees about fringe benefits and Southworth's testimony, above, that, in early 1966, he talked to some unidentified employees on the subject is the only evidence offered by Respondent that the em- ployees were expecting the Company to inaugurate fringe benefits. Although there is no evidence that Southworth, the alleged conduit for information to employees, knew anything about the situation other than as described above, if Southworth was aware of the situation, he would know that in April 1966 the recommendation for such benefits had been re- jected. There is no evidence that the financial position of the plant was better in December than it was in April although poor financial position was the, or one of the , reasons for deciding not to place fringe benefits in effect in April 1966, above. Respon- dent's evidence, testimony of Rutter and Zammit, indicates that the labor market was tight in Februa- ry, March, and April 1966 when Zammit wrote his memorandum, and evidently throughout 1966, which would certainly include May and June, prior to the advent of the Union. There is no showing that, in December 1966, or in the latter part of the year 1966, the labor market was any tighter than it was from January to June.24 Respondent, in further explanation of the tight labor market and the difficulty of securing skilled male help absent fringe benefits, states that, on January 1, 1966, it had 25 men and 14 women em- ployees and at the end of January 1967,25 it had 24 men and 26 women. This statistic does show a higher ratio of women to men but does not show that the trend or the ratio was greater in December 1966 than it was in the earlier or middle months of the year; nor does it show that the newly inaugu- rated fringe benefits reversed the trend or had anything to do with it. It does show a work force expanded from 39 to 50 with one less male em- ployee.26 However, we are prepared to conclude that there was a tight labor market and that Respondent be- lieved that fringe benefits would aid it in the recruitment and retention of employees. But it is equally true that, as early as April 1966, Respon- dent regarded the installation of fringe benefits as a precaution against possible unionism among its em- ployees. In April 1966, the corporation rejected a recommendation that fringe benefits be installed. The plant manager, Wachle, had also opposed in- stituting such benefits. In August 1966, another management representative, Beers, was placed over Wachle at the plant and, in November 1966, Wachle left the plant entirely. Zammit, in his testimony, sought to convey the impression that the corporation had rejected fringe benefits in April 1966 out of deference to Wachle _' Generally speaking , as a matter of official notice, by at least the latter part of 1966, economists and businessmen expressed the belief that there was something in the nature of a sideward adjustment in the economy and 1967 was not contemplated to be a banner year. More specifically, we again note the absence of evidence that , in December 1966, Respondent was in a better financial position than in April 1966 when it rejected the fringe benefit proposal =s The transcript is apparently in error since it reads, "At the end of January I st, 1967, we had twenty-four men.. " 16 In many plants, the complement of semiskilled employees can be ex- panded without comparable expansion or any expansion of a nucleus of skilled workers Skilled machinists or diecasters , who are usually male, can produce basic tools, parts, and dies, and set up machines with which ex- panding numbers of semiskilled employees can produce increased numbers of products , or assemble them and so forth , plus an expanding need for more semiskilled packaging and shipping employees 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who opposed such benefits, and that when the latter left, the corporation instituted the fringe benefits as it had wished to all along. This explana- tion is less than convincing for several reasons. If, as Respondent 's witnesses testified, the plant, from at least February 1966, was having such a difficult time in obtaining and retaining employees in a tight labor market, and if this situation was a major reason why Zammit, in April 1966, recommended fringe benefits, it is highly unlikely that top management, at the corporate level, would have failed to institute fringe benefits at one of its plants simply because the plant manager, Wachle, did not like the idea . The fact was, as Zammit testified, that the Milan plant was losing money, operating at a loss, in April 1966, and it was for this reason, as Zammit also testified , that Wachle opposed the fringe benefit idea . The corporation then rejected the recommendation of fringe benefits and, in our view of the evidence, did so because of the finan- cial situation , with deference to Wachle on a protocol basis being a minor or coinciding factor. In short , the plant was losing money; Wachle "was responsible for it [the plant] as a profit center," as Zammit testified ; Wachle opposed the fringe benefits ; the corporation rejected the recommenda- tion for fringe benefits and, according to Zammit, "it was postponed until the financial situation looked a little bit better." But, in addition to the financial situation in April, the evidence indicates another reason why the recommendation for fringe benefits may not have been successful in April. One of the bases for Zammit's recommendation was that the institution of such benefits would allay or deflect union organization of the employees. How- ever, in April, there was no union seeking to or- ganize the employees so the cogency or immediacy of this reason was not compelling , particularly when at the time there was also the aforementioned poor financial situation. This brings us to the question of the timing of the announcement of the institution of new fringe benefits on December 15, 1966, when a second election was pending. The General Counsel asserts that the matter was timed to affect the vote of em- ployees in the second election . Zammit was asked, at the hearing , "why was it [ the fringe benefit pro- gram ] instituted at that time [December 15-Janu- ary I]?" He gave three reasons. (1) "There was a need for the program because of the tight labor situation and the difficulty in securing and retaining employees"; (2) "we had told these people [the employees] months ago that this was under con- sideration , and I thought we owed it to them to put the thing in"; and (3) "we were also considering putting in some benefits at some of the other divi- sions, and this looked like the appropriate time to do it." The foregoing reasons, in our opinion, do not adequately explain the timing of December 15, 1966. As to reason (1), there was a tight labor situation from February 1966 and at all times thereafter into 1967, and the difficulty of securing personnel existed throughout the entire period. The only evidence in support of reason (2) is that in early 1966, February or March, Southworth told some unidentified employees that consideration was being given to instituting fringe benefits. No employee testified that he or she had heard or knew of fringe benefits being considered at any time or expected fringe benefits from the Company. As to reason ( 3), Zammit's statement, above , is about all we have on this aspect. The record does show that other divisions of Respondent had the instant union as bargaining representative and these divisions did have fringe benefits . If Respondent was "con- sidering" new or additional benefits at such plants, the statement, "and this looked like the appropriate time to do it," scarcely explains the timing of the initial institution of fringe benefits at the Milan plant. In the past , when the other plants were en- joying fringe benefits, Respondent evidently felt no need to have such benefits at the Milan plant from 1962 to 1966. Before probing deeper into the matter of the December 15, 1966 , timing, we can eliminate financial condition or any change thereof at the Milan plant. We have seen that the fact that the Milan plant was operating at a loss in April 1966 was a, or the, major reason why fringe benefits were rejected at that time . There is no evidence that the financial condition of the plant changed between April and December. Zammit does not even mention this aspect among his three reasons, above. Then we come to the matter of Wachle. Although we do not believe , as explained previ- ously, that it was simply a matter of corporate deference to a plant manager that led to the rejec- tion of the fringe program in April, Respondent ap- parently believes that the December 15 timing is partially explained by the Wachle aspect. As men- tioned, in August, Beers was placed over Wachle and Wachle "instead of reporting directly to the president of the Company was to report to Howard Beers," who had been made general manager of the Respondent's entire group of plastic products plants. Wachle left in November. In August to November, Wachle could scarcely be said to be the reason for not instituting an al- legedly direly needed fringe program . The tight labor market was still present . And there was a union seeking to organize the plant . In other words, the basic reasons why Zammit had recommended the fringe program in April now existed. Why, therefore , did not Respondent effectuate its fringe program . Evidently, as far as some of the period is concerned, there was one principal reason. From July to September 1966, there was a union organiz- ing campaign among the employees and there was a September Board election . Respondent states that its counsel advised against instituting the new fringe program because of the possibility of being charged with unfair labor practices . In addition to the THE MATHER COMPANY 265 foregoing, the instant decision has found that, in August, Respondent had engaged in illegal inter- rogation of employees to undercut their allegiance to the Union . In any event, Respondent decided to proceed to the election without instituting its fringe program . This takes care of the July to September period. The September 9 election resulted in a vote against the Union . Why did not Respondent then announce its fringe program which it contends was so urgently needed to secure employees from February 1966 through December 1966 and thereafter . Although Respondent has offered no ex- planation , we will offer one that is , on its face, help- ful to Respondent . Respondent did not institute the fringe program in the period from September 10 to December 13 because the Union had filed objec- tions to the election and, if the objections were upheld , there would be a second election . Respon- dent, therefore , withheld instituting the program because of the possibility of an impending second election . The difficulty with this explanation is that, on December 15, there was more than a possibility of a second election ; there was a direction of a second election that had been issued on December 13 by the Regional Director . Therefore , if the ex- planation for the noninstitution of the fringe pro- gram in the period from September 10 to December 13 was the "possibility" of a second election being directed as the result of objections to the election that had not yet been resolved, a for- tiori, Respondent would not institute its fringe pro- gram when it knew definitely , on December 14, that there would be a second election . But this is precisely what Respondent did on December 15. Why therefore, after the September 9 election, did Respondent act differently in the period Sep- tember 10 to December 13 than it did on December 15. The tight labor market , Respon- dent's business reason for the fringe program, had existed since February and certainly existed from September 10 to December 13. Two explanations for the foregoing occur to us. The election vote having gone against the Union, there was a possibility that would be the end of the Union at the plant for at least a year, perhaps in- definitely.27 From the time of the filing of objec- tions to the election by the Union , after the election to December 13, there was a possibility that the ob- jections would not be sustained. If the objections were not sustained , the immediacy of the danger of unionization of the plant disappeared . The only reason that would remain for instituting the fringe program between September and December was therefore the business reason , the tight labor mar- ket. And Respondent did not act on that basis since it did not announce the fringe program while there was a possibility between September and December that the Union 's objections would be dismissed. During the same period , there was also the possi- bility that the objections would be sustained but Respondent decided to wait to see which result finally emerged. The allegedly sole business reason motivation timing for the fringe program did not motivate Respondent to institute its program during this period. But, on December 13, the objections to the election had been sustained and a second elec- tion directed. Immediately, on December 15, Respondent announced its new fringe program to the employees. We find that the timing of the an- nouncement supports and warrants the conclusion that it was timed to affect the result of the directed second election. If it be said that the explanation for the an- nouncement was that Respondent was tired of withholding its fringe program from the employees, the question is, why did it choose December 15. The program had been recommended in April. We have traced its history in detail. Why was it not in- stituted thereafter, even December 12, before Respondent knew that there definitely would be a second election. It was the definite prospect of a second election that triggered the announcement. The first election resulted in seven more votes against the Union than for it. A second election might have the same or a different result . Prior to the first election, Respondent had committed the unfair labor practices found hereinabove. Perhaps, in a second election , after December 15, the situa- tion might be different, since , on December 8, the General Counsel had issued a complaint against Respondent alleging illegal interrogation of em- ployees prior to the first election . The complaint might have brought about remedial action to reas- sure employees of their right to be free of inter- ference on the subject of a union , or might inhibit any further illegal conduct before the second elec- tion was held. Under these circumstances, the an- nouncement of the fringe benefits, before any second election and as soon as it was known that there would be a second election , had the manifest intent of influencing the employees in their election choice. We find a violation of Section 8(a)(1), based on the timing of the announcement of the substantial new fringe benefits. CONCLUSIONS OF LAW Respondent has violated Section 8(a)(1) and (5) of the Act as found hereinabove. The appropriate unit is: All production and maintenance employees, including shipping and receiving employees and truckdrivers , employed at Respondent's Milan , Michigan, plant, excluding office cleri- " Sec 9( c)(3) ofthe Act 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal employees, professional employees, foremen , guards and supervisors as defined in the Act. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.29 THE REMEDY Having found that Respondent has committed certain unfair labor practices we shall recommend that it cease and desist therefrom and that it take appropriate remedial action . The remedial action for a refusal to recognize and to bargain is an order to bargain and we shall so recommend. RECOMMENDED ORDER Upon the entire record in the case and the foregoing findings of fact and conclusions of law, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees so as to interfere with their union sympathies or activi- ties. (b) Refusing to recognize International Union, United Automobile , Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, as the collective-bargaining agent of the employees at its Milan , Michigan, plant in the ap- propriate unit of all production and maintenance employees, including shipping and receiving em- ployees and truckdrivers , excluding office clerical employees, professional employees , foremen, guards and supervisors as defined in the Act. (c) In any like or related manner , interfering with , restraining , or coercing its employees in the exercise of their right to self-organization , to form, join , or assist the above -named Union or any other labor organization , to bargain collectively through representatives of their own choosing , and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion. 2. Take the following affirmative action to effec- tuate the purposes of the Act: (a) Upon request, recognize and bargain with the aforenamed Union as the collective-bargaining agent of its employees in the aforedescribed ap- propriate unit and , if agreement on the terms of a contract is reached , embody such agreement in a written contract. (b) Post at its plant at Milan , Michigan , copies of the attached notice marked "Appendix."28 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent 's representative , shall be posted by Respondent 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 Respon- dent to insure that said notices are not altered, defaced, or covered by other material. 48 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 " Y° In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 7 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES As the result of a hearing at which the Company, the Union, and the General Counsel of the National Labor Relations Board were represented by their attorneys and called and examined witnesses, the Trial Examiner of the National Labor Relations Board, who heard the evidence, has issued a Deci- sion in which he found, among other matters, that, on August 1, 1966, the Union did in fact represent a majority of the production and maintenance em- ployees, including shipping and receiving em- ployees and truckdrivers, and although the Union requested the Company to recognize it as the col- lective-bargaining agent of the above employees, the Company refused to do so on August 1, 1966. This action by the Company has been found to be in violation of the National Labor Relations Act in the Decision of the Trial Examiner. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: Upon request, WE WILL recognize and bar- gain with International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, as the collective-bargaining agent of the employees in the appropriate unit at our Milan , Michigan, plant. The unit includes: All production and maintenance em- ployees, including shipping and receiving employees and truckdrivers, excluding of- fice clerical employees, professional em- ployees, foremen, guards and supervisors as defined in the Act. WE WILL NOT unlawfully interrogate our em- ployees so as to interfere with their union sym- pathies or activities. All our employees are free to become or remain, or refrain from becoming or remaining , members of the aforesaid Union or any other union, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- THE MATHER COMPANY 267 ganization as a condition of employment, as This notice must remain posted for 60 consecu- authorized in Section 8(a)(3) of the Act. tive days from the date of posting and must not be altered, defaced, or covered by any other material. THE MATHER COMPANY, If employees have any question concerning this FLUOROTEC DIVISION notice or compliance with its provisions, they may (Employer) communicate directly with the Board 's Regional Dated By Office, 500 Book Building, 1249 Washington Bou- levard, Detroit, Michigan 48226, Telephone ( Representative ) (Title) 226-3200.