Petition for Writ of Certiorari — Pearson Bros. v. National Labor Relations Board

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IN THE ares Bi

Supreme Court of the Rnited States

October Term, 1973

"43-1268

THE PEARSON BROS. COMPANY,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RICHARD C. BAUERLE

112 West Second Street

Ottumwa, Iowa 52501

Attorneys for Petitioners

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, 0. C.-223-1220

(i)

INDEX

OPINIONS DELIVERED IN COURTS BELOW .

JURISDICTIONAL STATEMENT .

QUESTION PRESENTED

STATUTE INVOLVED

STATEMENT OF CASE .

REASONS RELIEF ON FOR ALLOWANCE

eS «¢ « + « « s s +,« «

CONCLUSION

APPENDIX

Page

14

la

(ii)

AUTHORITIES CITED

Cases:

Evening News Assn. and American Newspaper

Guild, 146 NLRB (No. 121)

Frank Miller’s Sons Fireproofing Co.

and United Order of American

Bricklayers and Stonemasons,

NLRB (No. 29) .

Master Dynamics Corp. and

James L. Dunlap, 180 NLRB

(No. 121) . ecg Gs

Research Designing Service, Inc.

and Local 155 Auto Workers,

141 NLRB 211 .

Troxel Manufacturing Co. and United

Packing House Workers, 174 NLRB

(No. 127) . . ne

Stacute:

National Labor Relations Act, as amended

(61 Stat. 136, 73 Stat. 519, 29 U.S.C.,

Sec. 151, et seq.)

Section 8(a)(1) .

Section 8(a)(3) .

Page

11

11

11

12

11

4,8

4,11

iN THE

Supreme Court of the Hnited States

October Term, 1973

No.

THE PEARSON BROS. COMPANY,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To the Honorable Warren E. Burger, Chief Justice of the

Supreme Court of the United States, and the Associated

Justices of the Supreme Court of the United States.

This is a petition by The Pearson Bros. Company for a

writ of certiorari to review a judgment of the United States

Court of Appeals for the Seventh Circuit entered in the

above case.

2

I.

OPINIONS DELIVERED IN COURTS BELOW

The United States Court of Appeals for the Seventh

Circuit entered a decision without opinion. The decision

is 486 Fed.2d 1406.

ll.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Seventh Circuit

handed down its order on October 2, 1973, and the judgment

sought to be reviewed was entered on November 19, 1973.

The statutory provision believed to confer on this Court jur-

isdiction to review the judgment in question is Section 1254

of Title 28 of the United States Code.

il.

QUESTION PRESENTED

The question presented for review is that where National

Labor Relations Board found that the employer had econom-

ic reasons at the time of the layoff that would justify a reduc-

tion in the work force, can the National Labor Relations

Board order the reinstatement of all twelve employees

who were laid-off and who were union adherents, and

thereby in effect permit only the laying off of non-union

adherents.

3

IV.

STATUTE INVOLVED

The statute of the United States involved is 29 U.S.C..,

Section 158(a) (3) which provides as follows:

“Section 8(a) It shall be an unlawful labor

practice for an employer—

(3) by discrimination in regard to hire or ten-

ure of employment or any term or condition

of employment to encourage or discourage

membership in any labor organization. Pro-

vided, That mothing in this Act, or in any

other statute of the United States, shall pre-

clude an employer from making an agreement

with a labor organization (not established, main-

tained, or assisted by any action defined in sec-

tion 8(a) of this Act as an unfair labor prac-

tice) to require as a condition of employment

membership therein on or after the thirtieth

day following the beginning of such employ-

ment or the effective date of such agreement,

whichever is the later, (i) if such labor organi-

zation is the representative of the employees as

provided in section 9(a), in the appropriate col-

lective-bargaining unit covered by such agree-

ment when made, and (ii) unless following an

election held as provided in section 9(e) within

one year preceding the effective date of such

agreement, the Board shall have certified that

at least a majority of the employees eligible

to vote in such election have voted to rescind the

the authority of such labor organization to make

such an agreement: Provided further, That no

4

employer shall justify any discrimination against

an employee for nonmembership in a labor or-

ganization (A) if he has reasonable grounds for

believing that such membership was not available

to the employee on the same terms and condi-

tions generally applicable to other members, or

(B) if he has reasonable grounds for believing

that membership was denied or terminated for

reasons other than the failure of the employee

to tender the periodic dues and the initiation

fees uniformly required as a condition of ac-

quiring or retaining membership.”

V.

STATEMENT OF CASE

A complaint was filed by the General Counsel fo the Na-

tional Relations Board alleging interrogation and threats in

violation of Section 8(a)(1) of the National Labor Relations

Act. as amended, and the layoff and/or discharge of twelve

employees in violation of Section 8(a)(3) and (1) of the

Act. The employer denied that it committed any unfair

labor practices. The case was tried before a Trial Examiner

who thereafter filed his decision finding that the employer

coercively interrogated its employees concerning union ac-

tivities and threatened them with reprisals for engaging in

union activities and laid off and/or discharged twelve em-

ployees because of their union activities. The employer

filed exceptions to the Trial Examiner’s Decision and upon

review, the National Labor Relations Board entered a deci-

sion and order affirming the rulings, findings and conclu-

sions of the Trial Examiner and ordered the employer to

5

cease and desist from coercively interrogating any of its

employees concerning union activities or threatening em-

ployees with reprisals for engaging in union activities and

from laying off, discharging or otherwise discriminating

against any employee for supporting any labor organiza-

tion. The National Labor Relations Board further ordered

the reinstatement, with back pay, of the twelve employees

laid off. The petitioner field a Petition to Review before

the United States Court of Appeals for the Seventh Circuit

and the National Labor Relations Board filed a cross-appli-

cation for enforcement of the order. The United States

Court of Appeals for the Seventh Circuit denied the Peti-

tion for Review and ordered the enforcement of the order

of the National Labor Relations Board.

The employer, Pearson Bros. Company, is engaged in the

manufacture of farm equipment, and principally liquid ma-

nure spreaders. During the year 1971 it had obtained a

large contract with Avco for the manufacture of this equip-

ment and this one contract accounted for approximately

one-third of the employer’s production. On January 12,

1972, Leland Pearson, president of the employer, along

with Ed Mendenhall, met with representatives of Avco at

Cold Water, Indiana. They had expected to obtain a sim-

ilarly large order from Avco for the year 1972, but at

this meeting they learned that Avco had approximately

40% of the 1971 production still on hand and unsold.

Consequently, the employer received no new order from

Avco as expected.

The situation of the employer was further complicated

by the fact that these spreaders all use a pump manu-

factured in Italy. The shipment of pumps from Italy had

6

been delayed. The pumps that should have reached the

employer on December 10, 1971, did not arrive until

February, 1971, and then only 100 of the 140 pumps or

dered arrived. Therefore on January 12, 1971, the em-

ployer’s inventory of pumps was depleted and it was not

economical to build these spreaders without the pump.

Gene Nelson, the plant superintendent, urged Leland

Pearson to lay off employees early in December, but Mr.

Pearson refused to lay off any employees before Christ-

mas. Leland Pearson realized some time in December,

1971, that a layoff was likely if the Avco order was not

renewed. During the week prior to January 12, 1972,

he explained the possibility of a layoff to the Coopera-

tion Committee, made up of employees, and asked them

for advice or recommendations as to a layoff procedure.

After the meeting with the representatives of Avco on

January 12, Leland Pearson and Ed Mendenhall made the

decision that the employer would have to cut production

by thirty per cent and would have to lay off a number

of employees. Their return to the employer’s plant was

delayed because of a snow storm so Leland Pearson called

Vernon Pearson (vice-president of the employer) and asked

him to determine who could be laid off without disrupt-

ing production and suggested that he talk to the plant

superintendent, Gene Nelson.

The employer had no procedure or criteria for layoff

and had never had any substantial layoff of employees

prior to this date.

Leland Pearson then discussed the layoff with the plant

superintendent, Gene Nelson, and Gene Nelson offered

the names of several of the employees who he felt would

oe

5

not be needed in view of the curtailment of production.

On January 13, 1972, nine employees were laid off and

on the following day three more employees were laid off.

The first union contact with any of the employees was

made by a representative of the International Molders and

Allied Workers union with employee, Harry Lambert, at

his home on January 3 or 4, 1972. There is no evidence

of any union activity at the plant of the employer until

January 10, 1972.

Prior to January 3, 1972, the employer had no organi-

zational chart, job classifications or seniority list. It had

no system of rating employees or reviewing the perform-

ance of the employees on any systematic or regular basis.

When an employee asked for a raise, it would consider

the request and either grant or deny the raise to that par-

ticular employee. The employer recognized that this lack

of organization and procedure caused inequities, and it

started in the fall of 1971 to formulate a job classifica-

tion and pay scale system. This project was principally

assigned to Ed Mendenhall and he worked on this during

the latter part of 1971. It was finally prepared and ex- é

plained to the employees, to be effective January 3, 1972.

The employer first established a Wage Classification and

Schedule. This chart sets out the labor grade and job title

for the different job operations of the employer and was

intended as a classification of jobs and not of the individ-

ual employees. No employees are listed on the chart,

only jobs. After all the jobs were classified as to the

labor grade and wage schedule, the names of the partic-

ular employees were related to the job titles. It was not

the purpose initially to rate the employees, rather this

initial classification was to establish labor grades and

job titles. Each employee was listed opposite the job

er PUFA

8

title he was performing. This process of indexing the

employees by job title was accomplished, but the em-

ployer was not finished with its task of organization.

Still to be accomplished was the task of rating the in-

dividual employees and necessarily shifting some employ-

ees from their present job classification into a classifica-

tion that would be more nearly descriptive of their skill

and ability.

The wage classification and schedule provides that a

new employee undergoes a work review at the end of a

90 day probationary period.

Of the twelve employees who were laid off, five (Jones,

Wessels, Strouse, Washburn and Bainbridge) were among the

twelve employees with the least seniority. Four of the

employees laid off were among the eleven lowest paid full-

time employees (Jones, Wessels, Washburn and Dunn).

The National Labor Relations Board found the employer

engaged in interrogations and threats in violation of Sec-

tion 8(aX(1) of the National Labor Relations Act. Armed

with this finding, the National Labor Relations Board found

that the layoff of each and every employee, regardless of

the employee’s seniority, wage scale, or other evaluation

of performance, was prompted because of their union ac-

tivities and required the reinstatement of all employees.

The enforcement of this order by the United States Court

of Appeals for the Seventh Circuit denied the nght of the

petitioner to select union adherents for layoff when such

layoff is justified by economic reasons.

The basis for federal jurisdiction in the court of first

instance is Section 161(f) of Title 29 of the United States

Code.

9

Vi.

REASONS RELIED ON FOR ALLOWANCE OF WRIT

1. The decision of said Court of Appeals as to the

right of the petitioner to layoff union adherents where

the petitioner had economic reasons which would justify

a reduction of force, by ordering the reinstatement of all

employees laid off, involves an important question of fed-

eral law which has not been, but should be, settled by

this court.

2. The decision of said Court of Appeals as to the

right of the petitioner to layoff union adherents where

the petitioner had economic reasons which would justify

a reduction of force, by ordering the reinstatement of all

employees laid off, so far departs from the accepted and

usual course of judicial proceedings, or so far sanction

such a departure by the National Labor Relations Board

as to call for an exercise of this court’s power of super-

vision.

The employer, being faced with the necessity of an

economic layoff, had the decision of what employees

were to be laid off. There are no specific standards set

forth in the NLRA as to the order in which employees

are to be laid off — this remains the prerogative of the

employer. The employer had never had a lay off of any

significance in all of its history. It had established no

precedent and had adopted no procedure for determining

the employees to be laid off. This was a case of first

impression as far as this company was concerned. The

president of the company had even brought up the sub-

ject about layoffs at the Co-operation Committee meet-

ing prior to January 12, and asked for suggestions from

the employees on the committee, but the employees had

no suggestions.

10

The twelve employees with the least seniority were:

Name Date Hired | Name Date Hired

*Jones, Ed l- 3-72 Osborne 9-28-71

*Wessels 12-14-71 Lindsey 9-27-71

Bowyer 12-13-71 Bazzoli 9-27-71

*Strouse 9-29-71 *Washburn 9-22-71

Watson 9-29-71 Luallen 9-20-71

Thompson 9-28-71 *Bainbridge 9-10-71

The eleven employees receiving the lowest hourly

wage were:

Name Wage Name Wage

*Jones, Ed $2.50 Milroy $2.60

*Wessels 2.50 Simmons 2.60

Thompson 2.50 *Dunn 2.65

Layman,R.E. 2.55 * Pennington 2.65

Fritch 2.60 *Washburn 2.65

Galloway 2.60

*These employees were among the twelve employees

laid off.

The Trial Examiner found that a reduction in force for

economic reasons was justified. The employer had suffered

a loss of work that amounted to approximately thirty per

cent of its production, and at the time the employer had

approximately seventy-five production workers. Because

of this loss of work, the employer laid off twelve employ-

ees which was not found to be excessive. The General

Counsel did not contest the proposition that a reduction

in force for economic reasons was justified and the Na-

tional Labor Relations Board specifically found that a re-

duction in force for economic reasons was justified. It

does not follow then that every union adherent caught in

the layoff was automatically a discriminatee. The em-

ployer had a legitimate reason for a reduction in force

and certainly some of the union supporters would have

to be laid off.

1]

The National Labor Relations Board has historically at-

tacked layoffs as being discriminatory when they are not

based upon seniority. Master Dynamics Corp. and James

L. Dunlap, 180 NLRB (No. 121); Troxel Manufacturing

Co. and United Packing House Workers, 174 NLRB (No.

127); Frank Miller’s Sons Fireproofing Co. and United

Order of American Bricklayers and Stonemasons, 164

NLRB (No. 29); Evening News Assn. and American News-

paper Guild, 146 NLRB 841. However, in the present

case, the National Labor Relations Board refused to honor

any of the layoffs as being non-discriminatory.

All new employees undergo a normal ninety day pro-

bationary period. Both Jones and Wessels were in the

probationary period and had the least seniority in the

entire plant. The National Labor Relations Board found

that the layoff of Edwin Jones, who was the newest em-

ployee with only ten days seniority, and the layoff of

William Wessels, who was the second newest employee

with only thirty days service, was discriminatory. This

ruling seems indefensible when the employer had a legi-

timate reason for a layoff because of a thirty per cent

loss of work. Apparently under the decision, the em-

ployer was permitted only to lay off nonunion sympathiz-

ers. This is certainly not the intention of N.L.R.B. Sec-

tion 8(a)(3).

Referring to the wage scale, Jones and Wessels were the two

lowest paid employees in the entire production force, both

earning $2.50 per hour, as well as having the least seniority.

There were a total of eleven employees who earned $2.50 per

hour or less among the seventy-five production workers and

Washburn and Dunn were also among the eleven lowest paid

employees. Consequently, Jones, Wessels and Washburn were

not only among the twelve employees with the least seniority,

but they were likewise among the eleven employees receiving

¥ UENO

12

the lowest wage. Certainly the wage scale and the lack

of seniority are the most common criteria for layoffs.

The National Labor Relations Board has recognized that

even though an employer may be guilty of unlawful acts

of threats and interrogation against the employees, the

employer is still permitted to lay off union activists where

a legitimate reason for a reduction in force exists. In the

case of Research Designing Service, Inc. and Local 155

Auto Workers, 141 NLRB 211, the Board said:

“When the factors noted below are weighed

in the light of this pattern of illegal conduct,

it is apparent to us that Respondent was un-

lawfully motivated in making certain layoffs.

But it does not follow, as the General Coun-

sel would have us find, that because the Re-

spondent, under the cover of its economic si-

tuation, sought to weaken the Union’s position

by laying off union adherents, that every union

adherent caught in the layoff was automatically

a discriminatee. Respondent did have a legiti-

mate reason for a reduction in force, and it is

probable that some of the individuals would

have been laid off even if there had been no

union on the scene. Whether or not a partic-

ular individual had suffered discrimination must

turn not simply on whether he was a union

member, but on a number of other factors.

In determining whether an alleged discrimi-

natee was in fact selected for layoff for anti-

union reasons, we have taken into considera-

tion: (1) whether his name was on the Union’s

lists submitted to Respondent; (2) whether

he had been laid off in previous (1960 or

1961) economic reductions; (3) his seniority

13

or length of service with Respondent; (4) his

rate of pay as compared with others retained

in similar job categories; and (5) interroga-

tions or threats directed against him.”

The National Labor Relations Board found there was

an economical justification for a layoff, and did not find

that the layoff of twelve men was excessive in view of

the thirty per cent loss of work. Consequently, the em-

ployer was justified in laying off twelve employees. The

decision below would require the employer to lay off

‘only nonunion sympathizers in order to avert a charge

that the selection of employees was discriminatory. If

the employer has a legitimate basis for an economic lay-

off, then he should be permitted to lay off the most logi-

cal employees, regardless of their union affiliations. Where

a legitimate layoff is authorized, the employer should not

be penalized for laying off those persons with the least

seniority and the lowest hourly rate, particularly when

these employees are singled out by the plant superintend-

ent as being the least necessary.

The employer, at the very least, was authorized to lay

off Jones, Wessels, Strouse, Washburn and Bainbridge who

were among the twelve employees with the least seniority.

In addition, the layoff of Dunn was authorized since Dunn

was among the lowest paid employees in the plant, suf-

fered from a serious health problem that prevented him

from doing production work and was engaged in a non-

essential job as errand man. Ignoring all the evidence of-

fered by the employer as to the qualifications of the em-

ployees laid off and the basis for their selection certainly

the employer is entitled to lay off the foregoing six em-

ployees.

Beers ceamememonesornteteen sen ae

14

Vil.

CONCLUSION

Wherefore, The Pearson Bros. Company, petitioner,

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the

Seventh Circuit in the above entitled case.

Richard C. Bauerle

112 West Second Street

Ottumwa, Iowa 52501

Attorney for the Petitioner

la

APPENDIX

TRIAL EXAMINER’S DECISION

Statement of the Case

Arnold Ordman, Trial Examiner: This case was tried

in Peoria, Ilinois, on April 10, 11, and 12, 1972 on a

complaint issued against Respondent by General Coun-

sel on February 29, 1972, pursuant to charges filed on

January 18, 1972, and February 23, 1972. The complaint

as amended at the hearing’ alleges interrogation and

threats in violation of Section 8(a)(1) of the National

Labor Relations Act, as amended, and the layoff and/or

discharge of 12 employees in violation of Section 8(a) (3)

and (1) of the Act. Respondent denies that it committed

any unfair labor practices.

Upon the entire record, upon my observation of the

witnesses, and after due consideration of the briefs filed

by General Counsel and by Respondent, I make the

following:

* At the opening of the hearing General Counsel moved

to amend the complaint by adding an allegation that Inter-

national Molders & Allied Workers Union was a labor

organization within the meaning of Section 2(5) of the

National Labor Relations Act, as amended, and additional

allegations relating to further interrogation and threats

in violation of Section 8(a)(1) of the Act. Respondent

opposed the motion to amend limiting its opposition to

the allegation relating to the Molders Union and pleading

surprise. As the facts hereinafter set forth, the Molders

Union was more directly involved in the instant contro-

versy than the Charging Party. The motion to amend was

granted with leave to Respondent to renew its request if

it could show prejudice during the course of the hearing.

No claim of such prejudice was made or tendered and the

ruling on the motion stands.

aor MEIOSIS

2a

Findings and Conclusions

I. Jurisdiction

Respondent, an Illinois corporation, manufactures and

sells liquid manure spreaders at its plant in Galva, IIli-

nois. Both its interstate shipments of goods and mate-

rials and its receipt of goods and materials from outside

the State of Illinois exceed $50,000 in value. Respondent

admits, and I find, that Respondent is an employer en-

gaged in commerce within the meaning of Section 2(6)

and (7) of the Act.

Respondent further admits that the Teamsters Union,

the Charging Party, is a labor organization within the

meaning of Section 2(5) of the Act and, for purposes

of this proceeding, that the Molders Union (see note

1, supra) is a labor organization with the meaning of

that Section. I so find.

Il. The Alleged Unfair Labor Practices

A. Background; The Issues

On January 3, 1972 Respondent had at its Galva, Illi-

nois, plant a relatively stable complement of approxi-

mately 75 production and maintenance employees. About

17 of these employees were on a part-time schedule. There

was no union at the plant.

Dissatisfaction with certain working conditions gave

rise to some concerted activity among the employees

in 1971. When the employees brought their dissatisfac-

tions to the attention of management, a Cooperation Com-

mittee was formed at management’s suggestion in late

August or early September 1971 to deal with the em-

ployees grievances. The Committee was composed of five

employees representing different departments in Respon-

dent’s plant and several meetings were held between

the Committee and management over the next few

3a

months. Talk of union organization which had taken place

among the employees before the Committee was formed

dwindled during the brief existence of the Committee.

Late in December and early in January 1972 it revived,

culminating in a meeting at the Wagon Wheel Tap in

Galva, Illinois, on January 10, 1972, where a number

of employees signed authorization cards for the Molders

Union. A few more Molders Union cards were signed

within the next day or so, making a total of 22 card-

signers among the approximately 75 employees in Re-

spondent’s employ. On January 13, 1972, 3 days after

the Wagon Wheel meeting, the employment of nine em-

ployees was admittedly terminataed and on the follow-

ing day, January 14, three more omployees were ad-

mittedly terminated.? All 12 employees terminated were

full-time employees and were among the 22 who had

signed cards. General Counsel contends that the selec-

tion for termination of these 12 union adherents from

a work force of approximately 75 production and main-

tenance employees were dictated by antiunion considera-

tions. Respondent counters with the claim that the termi-

nations were the result of a reduction in force dictated

by a falloff in available work and that the selections

were made on the basis of the versatility of employees

to meet the needs of a continuing operation with a more

limited work output.

During this same period Respondent’s officials al-

legedly engaged in interrogation and threats directed

against the union activity of the employees. Involved

in this conduct were Carl Peve and Lester Morrell who,

General Counsel contends and Respondent denies, were

supervisors for whose actions Respondent was answer-

able.

2 While these events were taking place, several employees

signed authorization cards for the Teamsters Union.

SEAN NLR IA

4a

The issues presented are:

1. Whether Carl Peve and Lester Morrell were su-

pervisors within the meaning of Section 2(11) of the Act.

» Whether Respondent’s officials, including Peve and

Morrell, engaged in interrogation and threats in viola-

tion of Section 8(a)(1) of the Act.

3. Whether the layoff and/or discharge of 12 Union

adherents on January 13 and 14, 1972, was discrimina-

torily motivated in violation of Section 8(a)(3) and (1) of

the Act.

B. The Supervisory Status of

Peve and Morrell

1. Carl Peve

The evidence as to the supervisory status of Carl

Peve was in sharp conflict. Generally speaking, Respon-

dent’s president, Leland Pearson, its vice-president, Ver-

non Pearson, brother of Leland, and E.L. Mendenhall,

assistant to the president, denied that Peve was a de-

partment head, foreman, or leadman, and asserted that

Peve exercised no supervisory functions. Vernon Pear-

son testified that Peve had no title or job classification

as such and that his sole function was that of trouble-

shooter. Mendenhall testified that Peve was a trouble-

shooter, expediter and inspector, that one of his fune-

tions was to oversee the operations of the paint depart-

ment but that Peve operated only under the direction

of Gene Nelson, Respondent’s general foreman. Carl

Peve’s own testimony was to the effect that he was

not a leadman, foreman or department head, that he

exercised no supervisory functions and that he did not

train new employees. Peve testified further that he per-

forined the function of troubleshooter and inspector and

that he never gave an order to an employee unless spe-

cifically directed to do so by the general foreman, Gene

5a

Nelson, or by one of the Pearson brothers. It also ap-

peared that Peve was paid at an hourly rate whereas

all the admitted supervisors in Respondent’s hierachy

were on a salary basis.

On the other hand, testimony of employees was to the

effect that Peve was identified to them by management

as being a supervisor and that Peve, in fact, exercised

supervisory functions. Employee Harry Fritch testified

Vernon Pearson took him on a tour of the plant, and iden-

tified Carl Peve as assistant shop foreman. Employee

Edwin Jones, also hired by Vernon Pearson when he

applied for work in mid-December, testified that Vernon

Pearson introduced him to Carl Peve with the statement,

“Ed Jones, this is Mr. Carl Peve. This is your Foreman—

your boss. You do what he says.” Employee James L.

Bainbridge, hired in September 1971, testified to like

effect. Vernon Pearson introduced Bainbridge to Gen-

eral Foreman Nelson and Carl Peve. Vernon Pearson

left. Nelson then told Bainbridge that Nelson and Carl

Peve “run the shots [sic] and Carl would be my boss.”

Employee William Washburn, hired by Vernon Pearson

in September 1971, testified that Vernon Pearson took him

to the paint department on the day he started work, intro-

duced him to Carl Peve and said, “This is the man you

will be working under.”

Testimony was also given by employees as to Peve’s

functions. Harry Fritch who was transferred to the paint

department after a few months in the shipping depart-

ment, testified that his assignments in the paint de-

partment were given to him by Carl Peve and that

Carl Peve also told other employees in the paint de-

partment what to do.’ Bainbridge likewise testified

that Peve gave directions to the employees in the paint

department. In addition, employees Harry Lambert,

?There were about six employees in the paint depart-

ment.

6a

William Wessels,* Rodney Mackie and Joseph Bickett

testified that Peve issued orders and assignments to em-

ployees and directed them to redo jobs inadequately or.

improperly done. With respect to other aspects of Peve’s

authority, Lambert testified that Lester Morrell told him

he would have to consult Peve or Nelson about a pos-

sible transfer to the shipping department, that he did

consult Peve and, after his third effort in this regard,

Peve told him his transfer was effective. William Wash-

burn testified that he discussed overtime work with Peve

and that on a few occasions Peve gave him time off.

Rodney Mackie stated that Peve gave him his assign-

ments, informed Mackie that his job performance was

inadequate, watched his work and later discharged him.

Even more significant in this regard was other testi-

mony vouchsafed by Respondent’s top officials. Vernon

Pearson, a very difficult or confused witness who, as

already noted, denied Peve’s supervisory status, acknow!}-

edged that on occasion, when he or his brother were

absent from the late afternoon shift and the part-time

employees were at work, Peve was in charge of, and

responsible for, the operation on that shift. President

Leland Pearson conceded that Peve could fairly be char-

acterized as a multi-department leadman. Leland Pear-

son admitted also that in an affidavit he had furnished

to a Board investigator in February 1972, he had listed

Carl Peve among Respondent’s foremen and leadmen

and stated further that among Peve’s duties was that

of oversecing the paint room. In this connection Leland

Pearson iestified also that foremen or leadmen had the

authority to recommend the hire or discharge of ein-

ployees and that in the event of such a recommendation,

‘The incorrect spelling “Wessells” was corrected at the

hearing.

7a

the odds were very high that the recommendation would

he accepted. Relevant here, also, is the fact that Re-

spondent, on or about December 29, 1971, prepared a

complete roster of its rank-and-file employees from which

supervisory personnel were excluded and that the name

of Peve was not on that list.

In sum, it appears that Peve’s job as inspection ex-

pediter and troubleshooter gave him wide range and

seope throughout Respondent’s enterprise with special

attention to the paint department. Cogent evidence, not

seriously challenged, establishes that Peve made job as-

signments, issued orders and ararnged for transfers,

temporary or otherwise. Respondent sought to explain

away these obvious indicia of supervisory status on the

ground that Peve did not bear the title of foreman, de-

partment head, or leadman, that Peve was paid an hour-

ly rate rather than a salary, and that to the extent he gave

orders to employees, he was in each instance merely

relaying ~pecific directives from General Foreman Gene

Nelson.

The explanations are vulnerable. As indicated, several

employees testified that Vernon Pearson, upon their en-

trance into employment, introduced or identified Peve

to thm as assistant foreman or boss or the man they

would take orders from or work under. I credit that

testimony. Leland Pearson acknowledged that he had

listed Peve among the foremen and leadmen in Respon-

dent’s employ, that Peve could fairly be called a multi-

department leadman, and that, as president of Respon-

‘Respondent sought to explain the absence of Peve’s

name on the ground that Peve was undergoing hospitaliza-

tion at the time the list was prepared. Yet it appears that

employee Carl Nelson who was also absent from work

from October 1971 until after January 13, 1972, was in-

cluded in the employee roster.

SHOR RUPEE YSIS ENA HY I ORD PA

8a

dent, he gave great weight to recommendations of fore-

man and leadman with respect to hire and discharge

of employees. The fact that Peve was paid on an hourly

rate rather than on a salary basis is not controlling;

not the method of payment or the title, but the func-

tions performed and the authorities possessed or exer-

cised are the criteria for the determination of super-

visory status. Finally, the claim that Peve exercised no

initiative and made no independent judgment in the

myriad situations where he gave orders or made assign-

ments to employees, but that he acted in each instance

only on specific directives from foreman Gene Nelson

strains credulity.

In determining the supervisory status of a specific in-

dividual it is settled law that “section [2(11) of the

Act] is to be interpreted in the disjunctive, . .. and the

possession of any of the authorities listed in Sec. 2 (11)

places the employee invested with this authority in the

supervisory class.” Ohio Power Co. v. N.L.R.B., 176 F.

2d 385, 387 (C.A. 6, 1949), cert. denied, 338 U.S. 899;

N.L.R.B. v. Roselon Southern, Inc., 382 F. 2d 245, 247

(C.A. 6, 1967); Federal Compress & Warehouse Co. v.

N.L.R.B., 398 F. 2d 631 (C.A. 6, 1968). Moreover, Sec-

tion 2(11) of the Act “does not require the exercise of

the power described for all of any definite part of the

employee’s time. It is the existence of the power which

determires the classification.” Ohio Power, supra, at 388.

On this basis the evidence in the record firmly estab-

lishes, and I find, that Carl Peve is a supervisor within

the meaning of Section 2(11) of the Act and an agent of

Respondent as alleged in the complaint.

2. Lester Morrell

The situation respecting Morrell is not too dissimilar

from that respecting Carl Peve and the relevant evi-

: a

9a

dence can be more briefly summarized. Respondent’s

position generally is that Morrell, like Peve, exercised

no supervisory functions. Like Peve, too, Morrell was

paid on an hourly basis. His hourly rate was $2.65, 69

cents more than the next most highly paid employee

in the shipping department where Morrell worked. Mor-

rell’s name like Peve’s was not included in the roster

of rank-and-file employees prepared by Respondent. The

reason assigned for that omission in Morrell’s case was

that Morrell was deemed to be attached to Respondent’s

office staff. Actually, Morrell had a small office in the

immediate area of the shipping dock. Morrell spent most

of his working time in the shipping dock area.

Morrell described his own job. He was a shipping clerk,

“more or less a lead man.” He admitted that when

there was more than one truck to be loaded, he “some-

times” picked the fellows to do the loading, that he “fre-

quently” assigned an employee another job when the

employee completed the job he was working on, that

he would reassign employees, as necessary, when such

jobs came in, and that generally his responsibility was

to see that the work in the shipping department was

done properly, and that there was no “goofing-off.” In

addition, Morrell was responsible for training new em-

ployees in his department and was admittedly consulted

consulted by Peve or General Foreman Nelson as to

how the employees in his department were developing.

Overtime work in the department was frequent but, ac-

cording to Morrell, he did not direct employees to do

overtime work but “asked” them.

Employees Fritch, Bickett and Lambert testified that

Lambert was in charge of, and gave orders to the em-

ployees in the shipping department. Lambert, who was

transferred to that department at his own request was

PARI AC 2 PR RI

ratrerenrnes a a

10a

told by Peve that he would be working for Morrell. Ac-

cording to Lambert, Morrell would make the work assign-

ments to the employees when the buzzer sounded for

the beginning for work in the morning, make additional

assignments, as needed and reassign employees to take

care of such jobs.

There was also extensive testimony by management

officials as to Morrell’s duties and responsibilities. Men-

denhall, assistant to the president, identified Morrell as

shipping clerk and, in response to a question as to who

was head of the shipping department which had a nor-

mal complement of about four employees, replied, “The

shipping clerk is head of the department as such.” Ver-

non Pearson testified that Morrell’s jcb was “seeing to

it that the trucks were properly loaded and took care

of the paperwork on it,” and that in the discharge

of this functicn Morrell told the shipping department

employees what to do. President Leland Pearson also

identified Morrell as shipping clerk but conceded that

Morrell could be regarded as shipping department fore-

man. Leland Pearson also conceded that Morrell would

be consulted on occasion when the question of a wage

increase for a shipping department employee was raised.

Morrell was, of course, answerable to General Fore-

man Nelson and to the Pearson brothers. On the other

hand, the evidence is clear that subject to that con-

trol, Morrell was in complete charge of the shipping

department, spent most of his time on the shipping dock,

and actively directed the work of the shipping depart-

ment employees who, in turn, regarded Morrell as their

superior. The testimony of both Pearson brothers and

Mendenhall essentially confirms that Morrell had this

status. Upon all the relevant evidence, and in the light

of the precedents and authorities cited in the discussion

lla

concerning Peve, I find that Lester Morrell was a super-

visor within the meaning of Section 2(11) of the Act and

an agent of Respondent as alleged in the complaint.

C. Interrogation and Threats

As already indicated, in late August or early Septem-

ber 1971 a Cooperation Committee was formed to deal

with grievances of the employees concerning wage in-

equities and working conditions. A series of meetings

were held hetween the Cooperation Committee and man-

agement regarding these matters and some steps were

taken to meet the employee complaints. As already noted

also, talk of union organization dwindled when the Co-

operation Committee was formed but before too long

talk of union organization revived, culminating in the

meeting of January 10, 1972, at the Wagon Wheel Tap

where a number of the employees signed authorization

cards for the Molders Union.

Willaim Wessels, hired as a full-time custodian on

October 16, 1971, had his preemployment interview with

Vernon Pearson. Pearson explained that the lack of clean-

liness in the restrooms and the plant generally was a

source of dissatisfaction to the employees and it would

be Wessels’ job to remedy that situation. Wessels asked

whether in view of these troubles, Respondent had any

kind of a shop union. Vernon Pearson replied in the

negative and explained that Respondent did not need

a union, that the problems would be worked out, and.

that by December the employees would get a raise and

would be given grade classifications. Wessels was termi-

nated on January 13, 1972.

In mid-December 1971 employee Marshall Geirnaeirt,

terminated on January 13, talked to Vernon Pearson about

a raise. The question of raises and wage inequities was

12a

a live issue in the meetings of the Cooperation Commit-

tee with Respondent. In that connection Geirnaeirt com-

mented, “The boys are kind of on their horse. You know

what’s going to happen, don’t you? There’s going to be

a Union.” Vernon Pearson replied, “Well, if there is, I’m

going to shut the doors.” I credit Geirnaerit’s testimony.

Harry Fritch, terminated on January 13, testified that

on January 10, 1972, the day the Wagon Wheel Tap

gathering was scheduled, Peve came to him at the plant

in mid-afternoon just before quitting time. Fritch

stated that Peve asked whether he was going to the

“big meeting.” Fritch asked, “What big meeting?” and

Peve replied, “You aren’t fooling us; we know about it,

and I bet I can even tell you who gave you the word.”

Peve added, “You fellows are going to fool around and

they will close the door and we will all be out of a

- job.” Peve denied making any such statement to Fritch.

Indeed, Peve, who had returned to work on January

4, 1972 after hospitalization and who worked continuous-

ly thereafter during the period of the January 10 Wagon

Wheel gathering and the January 13 and 14 layoffs,

denied that he had any knowledge of union activity or

any awareness of union activity until the week of Jan-

ary 17. In view of the widespread nature of that ac-

tivity, the layoffs of January 13 and 14, and the dis-

cussion of both the activity and the layoffs which ad-

mitiedly went on in the plant, it is difficult to believe

that Peve whose joh required him to operate through-

out the plant, could have been unaware of such activity

and discussion. I credit the testimony of Fritch as to

his conversation with Peve on January 10.

The Wagon Wheel gathering of the employees took

place later that afternoon after regular working hours.

President Leland Pearson was also at the Wagon Wheel

;

:

'

|

13a

Tap. Thereafter he returned to the plant. William Ste-

phen Walker, who had been a recent employee of Re-

spondent, approached Leland Pearson to ask for reem-

ployment. In the course of the ensuing conversation, Le-

land Pearson asked Walker if he knew anything about

a union being organized. Walker said he did not and

Leland Pearson commented that he did not dare talk

to any of his employees about union or about any union

activity. I credit Walker’s testimony.

Bainbridge was among the employees terminated Janu-

ary 13, 1972. The preceding afternoon, according to Bain-

bridge. Peve asked him what he thought about the union.

Bainbridge replied that he was for it. The following af-

ternoon Peve reopened the subject by asking Bainbridge

whether he was still of the same mind about the union.

When Bainbridge said yes, Peve told him, “You know,

you're going to be in big trouble. You and a lot of other

boys can lose their jobs over it.” Bainbridge replied,

“[ can't afford to lose my job but I think this place

needs a union to clean it up.” He added, “It’s a hell

of a shame I can’t voice my own opinion without some-

thing like this happening.”

Very shortly after this conversation, at quitting time,

nine employees, Bainbridge among them received their

termination notices. Peve, of course, denied engaging in

the quoted conversations with Bainbridge. For reasons

set forth in connection with the Fritch incident, I do

not eredit Peve’s denial and find that the conversations

oceurred as Bainbridge testified.

Ikmployee Edwin Jones, according to his testimony,

had a similar experience. Jones testified that during

the noon break on January 12 Peve approached him,

and adjuring him to tell the truth, asked whether re

was for a union. Jones replied, “Yes, I am for a union.

renee ah idl Re Ree He

Cola Achat hole

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spars mf

Borer

14a

We need one here.” Peve shook his finger in Jones’

face and said, “That’s all I wanted to know.” Jones’

employment was terminated on January 14. As with

Fritch and Bainbridge, Peve denied that this conversa-

tion occurred. I credit the testimony of Edwin Jones.

LaVern Charlet, manager of the industrial and munici-

pal equipment division and admittedly a supervisor and

agent of Respondent, was also involved in the matters

here under consideration. Leonard Dunn was among the

nine unions adherents laid off at quitting time on Janu-

ary 13. Immediately upon receiving his termination no-

tice, Dunn walked into the truck mount office where

Charlet was engaged in a conversation with Bruce Bry-

nev ard employee Vern Frail. Charlet volunteered that

“if the plant went Union why Lee [Leland Pearson]

would shut the place down.” Dunn, obviously upset at

and move the son-of-a-bitch to Russia.” Charlet admitted

that he had had a conversation with Dunn at the time

and place and under the circumstances to which Dunn

testified but stated that to “the nearest of my recollec-

tion” the conversation consisted of Dunn’s statement that

he would never have been laid off if there had been

a union in the plant and Charlet’s rejoinder that he did

not think anyone at Pearsons was interested in a union.

To the question whether he was said Leland Pearson

would shut down the plant if it went union, Charlet first

replied, “No, sir, I don’t believe I made any statement

like that,” and upon further questioning by Respondent’s

counsel, stated that he did not make a statement like that.

I find Dunn’s recollection more certain and accurate in

this regard and conclude that Charlet did make the state-

ment in question.

Leland Pearson, Vernon Pearson and LaVern Charlet

are admittedly supervisors and agents of Respondent.

ami

15a

The evidence relating to their conduct and statements,

summarized above, adequately justifies a finding of in-

terogation and threats violative of Section 8(a)(1) of

the Act. The conduct and statements of Carl Peve, whom

I have found to be also a supervisor and agent of Re-

spondent, furnish additional instances of coercive interro-

gation and threats. In sum, the evidence amply warrants

a finding that Respondent violated Section 8(a)(1) of the

Act.

D The Discharges on January 13 and

14, 1972

Respondent employed about 75 production and main-

tenance employees. Respondent had never had a major

layoff. Beginning on January 10, 1972, and within 2 days

thereafter, 22 of these 75 employees signed cards desig-

nating the Molders Union as their bargaining represen-

tative. On January 13 and 14, 12 of these 22 card-signers

were terminated, 9 on January 13,3 more on January 14.

No nonunicn adherents were terminated.

Respondent had occasion to learn the identity of the

employees who were union adherents. Ten of the 12 em-

ployees who were terminated attended a meeting at a

tavern in Galva, Illinois, known as the Wagon Wheel

Tap, on the afternoon of January 10, following the end

of the regular work shift.© Harry Lambert, a prime mover

in the union organizational campaign, arranged the meet-

ing to rally support for the Molders Union by obtaining

signatures to authorization cards. As indicated by Peve’s

inquiry of employee Fritch as to whether Fritch was

going to the “big meeting“ and by Peve’s accompanying

*These 10 employees were James Bainbridge, Harry

Lambert, Harold Potter, Leonard Dunn, Jerry Smith,

Harry Fritch, Marshall Geirnaeirt, Edwin Jones, Bernard

Strouse and William Washburn.

Bowre a te

16a

comments, it is apparent that Peve, at least, knew about

the meeting before it took place. Lester Morrell, already

identified here, was present at the meeting." Leland Pear-

son, Respondent’s president, and LaVern Charlet, man-

ager of Respondent’s industrial and municipal division,

came into the tavern during the course of the meeting

and stayed for a while.’ Morrell, of course, and Leland

Pearson and Charlet also, had an opportunity to observe

who was present.

‘Morrell did not sign a card. He informed Strouse,

in response to the latter’s inquiry, that he did not sign

a card because it would hinder his chances of getting a

salaried position. In reply toa similar inquiry Morrell told

Bainbridge that he could not sign a card because he was

boss. According to Strouse and Bainbridge, Morrell was

resent at the tavern while the cards were being signed.

orrell testified that he did not arrive at the tavern until

5:00 p.m., that he did not know union cards were being

signed and that he did not know about the card-signing

until he heard it being discussed in the plant the following

day, January 11. Even on Morrell’s version, he knew as

of January 11 that the employees at the tavern were

signing union cards.

®Leland Pearson testified that he went to the Wagon

Wheel Tap only infrequently. Several employees who

were regular patrons testified they had never seen either

Leland Pearson or LaVern Charlet there before. Leland

Pearson explained the striking coincidence of his presence

of this particular occasion on the ground that he wanted

to have a private business conference with Charlet because

each of them were leaving on separate business trips and

it was difficult for them to have a private uninterrupted

conference at the plant. The explanation seems somwhat

strained. Moreover, inasmuch as Leland Pearson knew

that a number of his employees regularly patronized the

Wagon Wheel Tap after work, the explanation is even

more strained. However, surveillance was not alleged.

The fact remains that Pearson and Charlet were present

and Pearson admittedly saw at least some of the employees

who were present.

17a

The 11th and 12th employees terminated, Joseph

Bickett and William Wessels, were not at the meeting.

However, Morrell had had discussions concerning the

union with each of them prior to their terminations.

General Counsel argues that these facts alone, that

all 12 employees who were terminated were union ad-

herents, that union adherents were far the lesser part

of Respondent’s employee complement and that Respon-

dent had opportunity to know of the identity of the

union adherents, are themselves cogent evidence of un-

lawful discrimination. In support of this position Gen-

eral Counsel cites F.W.Woolworth Company, 25 NLRB

1362, 1372-1374 (1940), enforced in pertinent part, 121 F.

2d 658 (C.A. 2, 1941); N.L.R.B. v. Camco, Inc., 340 F.

9d 803 (C.A. 5, 1965); Montgomery Ward & Co., Inc.,

v. N.L.R.B, 107F. 2d 555 (C.A. 7, 1939). Supplementing

this contention is the evidence, already summarized, that

Respondent regarded the advent of a union among its

employees with considerable disrelish and, as manifested

by the statements ofadmitted supervisory officials as

well as by the statements of Peve, made no secret of

its hostility to union organization.

It is arguable that, without more, these facts would

warrant a finding of discriminatory discharge. I find it

unnecessary to, and no not adopt, this contention. How-

ever, the showing here made calls at the very least,

for a critical serutiny of the reasons assigned by Re-

spondent for the terminations. See Montgomery Ward

& Co., Ine. v. N.L.R.B., supra.

These reasons are twofold: first, that a decline in Re-

spondent’s operational needs justified a reduction in Re-

spondent’s workforce for economic reasons, and, second,

that the determination of which employees to release

was made on the basis of the importance of particular

OL AE ILLS PRLS 4

PATS OO

18a

jobs to the continued operation of the plant on a re-

duced production schedule and the versatility of the em-

ployees to handle those jobs.

As to the first reason General Counsel, neither at the

hearing nor in its brief, contests the proposition that

a reduction in force for economic reasons at the time

of the terminations would have been justified. Apart

from other considerations, President Leland Pearson

learned on January 12, 1972, that Avco New Products,

a major customer of Respondent, was not going to re-

new its order. On this state of the record I find that

a reduction in force for economic reasons would have

been justified.

Respondent’s corollary defense is that the terminations

were made pursuant to its determination to cut the work-

force for economic reasons and that the criterion for

the cut was the importance of the job and the versa-

tility of the employee. Here Respondent’s position was

sharply challenged.

Vernon Pearson testified that the decision as to which

employees to terminate was made by him and his broth-

er Leland Pearson on the morning of January 13 and

that he and his brother had worked on the decision on

the evening of January 12 and on January 13. Accord-

ing to Vernon Pearson, he consulted with General Fore-

man Nelson and John Mercer, head of the fabricating

department, before the final decision was made and was

not sure whether he had also had a discussion with Carl

Peve in that regard. Vernon Pearson initially testified

that the criteria governing the selection were the im-

portance of the job to the continuing business, the ver-

satility of the particular employee, his attendance record,

his cooperativeness and his seniority. Confronted with

a sworn affidavit he had previously furnished the Board,

19a

Vernon Pearson agreed that he had there made no men-

tion of cooperativeness and, on further examination, re-

affirmed his express statement in the affidavit that se-

niority of the employees was not a factor in the de-

termination. Vernon Pearson also acknowledged that no

part-time employee had been laid off, that for several

weeks prior to the instant hearing there was a_ sub-

stantial amount of overtime work for which Respondent

paid time and a half, that Respondent was currently

behind in its production and that, notwithstanding, none

of the 12 employees terminated on January 13 and 14

had been recalled.

Leland Pearson testified that he learned of the loss

of business from Aveo New Products at a meeting which

he and E.L. Mendenhall, his assistant held with officials

of Aveo New Products on January 12 at the latter’s

plant in Coldwater, Ohio. According to Leland Pearson,

he called his brother, Vernon Pearson, that night, in-

formed him that a lavoff would be required, and dis-

cussed with him how to implement the layoff so as to

maintain production at a reduced rate. Leland Pearson

further testified that Respondent had no layoff procedure

and no seniority system, and that the criterion applied

to determine layoff or retention was the versatility of

the particular employee to do the jobs which would be

required in a reduced operation.

General Foreman Nelson, confirmed that he had dis-

cussed the impending layoffs with Vernon Pearson a cou-

ple of days before the termination notices were issued.

According to Nelson, he advised Vernon Pearson of at

least eight employees whose services could be dispensed

with in a reduced operation, citing either inadequate work

performance or some other reason for his recommenda-

tion. Reminded that he had furnished an affidavit to

ee rae

20a

the Board about 2 months prior to the hearing and a

month after the layoffs, Nelson acknowledged that the

affidavit recited only one employee he had recommended

for layoff, Harry Lambert. As already noted, Harry Lam-

bert was a prime mover in the organizational campaign.

In sum, it appears that despite testimonial suggestions

of a variety of reasons which allegedly entered into the

layoff determinations, the only asserted reason which

emerged was the versatility of the particular employee

for continued operation of the plant on @ reduced pro-

ductivity schedule. This asserted ground must in the first

instance explain the striking coincidence that its appli-

cation Ied to the discharge of 12 of the 22 union ad-

herents and that every one of the 50 or more nonunion

employees survived this test.

Moreover, even as applied to the 12 employees termi-

nated, Respondent's asserted ground is vulnerable.

(1) James Bainbridge was hired by Respondent in

September 1970 as a spray painter. His wage rate was

$3.50 per hour and he was classified as Labor Grade

6, the next to the highest labor grade in Respondent’s

labor grade seale.* Bainbridge who had long experience

*The data relating to labor grade and wage seale de-

rives from a roster of Respondent’s work force pre red

by Respondent late in December 1971 and accurately re-

porting the status of the work force as of January 3,

1972. The roster, introduced into evidence as General

Counsel’s Exhibit 2, contains a list of the employees, their

starting dates, their rates of pay as of January 3, 1972,

and their labor grades ranked from No. 1 to No. 7 with

the higher labor grades ranked from No. 1 to No. 7 with

the higher labor grades awarded to those employees with

greater skills. Respondent contends that the roster re-

flected a rating of the jobs and not of the individuals who

held those jobs. The claim is suspect inasmuch as Re-

spondent was free to assign the individual it deemed most

2la

as a painter, was the only employee who painted liquid

manure spreaders, a major item in Respondent’s product

inventory. At the hearing, Respondent indicated that it

had been dissatisfied with Bainbridge’s work performance

since September 1971 and suggested that he indulged in

alcoholic beverages. As to the latter allegation, the evi-

dence is clear that Bainbridge never missed a day’s

work and did a great deal of overtime work. Respon-

dent did run an advertisement for 3 days for a spray

painter but, significantly, this advertisement first ap-

peared on January 11, 1972, the day following the meet-

ing at the Wagon Wheel Tap, a meeting which Bain-

bridge attended. Respondent obtained no replacement for

Bainbridge and at the time of the hearing was subcon-

tracting out the painting of truck mounts at admittedly

high rates.

(2) Harry Lambert was hired in August of 1970 as

a laborer and was later transferred to the shipping de-

partment. In both jobs he performed a variety of func-

tions including substituting for Morrell in the shipping

department when the latter was absent. Lambert was

hired at $2.40 an hour and during the course of his em-

ployment received four raises, the last on January 3,

1972. In labor grade 4 at $3 per hour, Lambert was

the highest paid employee in the shipping department.

Immediately below him was Joseph Bickett in labor

grade 3 at $2.80 per hour. Bickett was also discharged.

Not discharged but retained were Galloway and Simmons,

the other two employees in the shipping department who

* (continued)

qualified to any particular job, the designation of labor

grade was within its discretion, and the roster admittedly

included pay raises effective January 3 which one may

fairly assume reflected Respondent’s evaluation of the

work performance of the employee on the particular job.

ewe

es de) Oneret © epi te

PERE ee

22a

were classified in labor grade 2 and received $2.60 an

hour. Unlike Lambert and Bickett, Galloway and Sim-

mons were not union adherents and did not attend the

Wagon Wheel Tap meeting. Respondent complained that

Lambert was guilty of “a lot of standing around.” Only

one specific instance was cited occurring in December

1971. Yet Respondent gave Lambert a raise as of Jan-

uary 3, just 10 days before his termination.

(3) Joseph Bickett was employed by Respondent in

July 1970 on the part-time shift in the paint room and

within a few months was transferred to the full-time

shift in the shipping department. As already noted, Bickett

at $2.80 an hour in labor grade 3 was second only to

Harry Lambert in the shipping department and was above

Galloway and Simmons in both pay scale and labor

grade. In both the paint room and in the shipping de-

partment, Bickett performed a variety of jobs.

(4) Harold Potter hired in August 1970, was initially

assigned to a number of different jobs in Respondent’s

operation and was finally assigned to assist Marshall

Geirnaeirt. In addition to grinding the parts which Geir-

naeirt cut out, Potter processed these parts into finished

products utilizing various machines to punch or drill

holes, ream the holes, and tap or thread them as ap-

propriate. Potter was the only employee doing this work.

His labor grade was 4 and he was one of those given

a 15-cent raise as of January 3, 1972. Despite his ver-

satility, Respondent terminated his employment 10 days

later on the ground that his services were no longer

needed.

(5) Leonard Dunn, was hired in February 1970 and

worked in the truck mount department where he per-

formed a number of operations. At the outset some of

his time was spent running errands and picking up tools

23a

and supplies needed thruout the factory. The latter as-

spect of his work grew and by the time of his layoff,

Dunn was spending most of his time running errands

and making deliveries of spreaders to customers within

a 100-mile radius of Respondent’s plant. Dunn was in

labor grade 3 at $2.55 an hour. Respondent noted that

Dunn had trouble standing on his legs too long. How-

ever, Respondent was aware of this problem when Dunn

was hired. This disability on Dunn’s part was due to a

heart condition whch resulted in his occasional absence

for a day or part of a day for medical treatment.

(6) Jerry Smith was hired in May 1970 and worked

in the tank department. He received four raises, including

a raise of 15 cents on January 3, 1972, raising his sal-

ary from $2.40 and hour to $2.90 an hour. He was in

labor grade 4. Smith performed a variety of jobs in-

cluding maintenance welding when the construction and

repair crew was too busy to do such welding. Of the

several employees in the tank department, only Smith

and Strouse attended the Wagon Wheel Tap meeting.

Only Smith and Strouse were laid off from that depart-

ment.

(7) Harry Fritch was hired into the construction and

repair department in July 1970. He was later transferred

to the shipping department where he got a raise and,

in September 1971 went to the paint department. Fritch’s

labor grade was labor grade 2; his salary was $2.60

an hour. Thomson also at labar grade 2 in the paint

department was paid $2.50 an hour and Paxton, a la-

bor grade 1 in the paint department, was paid $2.20

an hour. Neither Thomson nor Paxton were terminated.

(S) William Wessels was hired in October 1971 as a

custodian to take care of deplorably dirty conditions in

the restrooms and the rest of the plant about which

24a

the employees were complaining. The record establishes

that Wessels did a good job in rectifying this situation.

Although there is no indication that tbe need for Wes-

sels’ services abated, Respondent included him among

the employees terminated. Wessels was in labor grade

2 at $2.50 an hour.

(9) Marshall Geirnaerit was hired in April 1967 at

$2.25 an hour. During his employment with Respondent

Geirnaeirt performed about every job in the shop and

his versatility in that regard was known to Respondent.

His basic job at the time of his dischargewas operat-

ing a flame cutter to cut patterns out of plate metal.

Some time before his discharge, Respondent installed a

new and improved flame cutter. Respondent indicated

that it had a growing dissatisfaction with Geirnaeirt’s

work in that he was reluctant to change procedures with

the old cutter and was also reluctant to adapt to the

use of the new cutter. The dissatisfaction, however, would

appear to have been quite recent inasmuch as Respon-

dent gave him a l5-cent per hour raise on January 3,

1972, 10 days before the layoff, and classified him at

labor grade 5 at a top wage of $3.30 an hour. More

significant perhaps is the fact that Leland Pearson ad-

mittedly saw Geirnaeirt at the Wagon Wheel Tap meet-

ing on January 10.

(10) Edwin Jones was a very junior employee clas-

sified at labor grade 2 in the paint department and was

paid $2.50 an hour. At least one employee in that de-

partment was below him. Paxton was classified at labor

grade 1 at $2.20 an hour.

(11) Bernard Strouse went to work for Respondent

in September 1971. Vernon Pearson, who hired Strouse,

commented on his broad experience. Strouse had per-

formed all kinds of welding and carried the title of Cer-

25a

tified Welder. He was put to work in the tank depart-

ment where he did all varieties of welding and assem-

bly operations and was complimented on his work. He

was classified in labor grade 5 and was paid $3.25 an

hour. Three lower rated employees in the department

were not laid off. Vernon Pearson, commenting on

Strouse’s termination, testified that, according to Mercer,

Strouse was not “a pretty good welder,” but Mercer

did not take the stand to verify that statement.

(12) William Washburn was hired on September 22,

1971 as a dipper in the paint department at $2.50 an

hour. He was in labor grade 3 and, on January 3, 1971,

was raised to $2.65 an hour. In addition to dipping and

some spray painting Washburn did various odd jobs. Two

lower rated employees in the department, at labor grades

1 and 2 respectively, were not laid off.

The net of the foregoing summaries is that in several

of the instances Respondent’s contention that the peo-

ple terminated were the least versatile and were un-

suited to the needs of a business which was going to

be operated on a reduced basis is wholly unsupported.

Even on the assumption that such a conclusion would

have been warranted in a few instances, the claim ad-

vanced by Respondent that this was the guiding consid-

eration in al] 12 instances is patently untenable. Rather

the evidence taken in its totality points inevitably to

the proposition that the unifying thread in all 12 termi-

nations was the union adherence of the employees in-

volved. Respondent had ample opportunity to learn of

the union adherence. Its hostility to union organization,

disclosed by its coercive interrogation and threats, was

manifest. Moreover, its hostility was unremitting. Not-

withstanding the fact that as of the time of hearing Re-

spondent was behind in its production and that consid-

erable overtime at time and one-half was required, Re-

26a

spondent did not recall any of the 12 employees who were

laid off, ostensibly, for lack of work.’

On all the evidence of record and after due con-

sideration of the arguments and authorities urged by

the parties, I conclude and find that Respondent did not

on January 13 and 14, 1972, carry out a reduction in

force for economic reasons, a course of conduct which

would have been warranted, but instead utilized the stra-

togem of a reduction in force as a pretext to rid itself

of union adherents. Accordingly, I find that by terminat-

ing the employment of the 12 employees, named in the

complaint, on January 13 and 14, 1972, Respondent vio-

lated Section 8(a)(3) and (1) of theAct.

Conclusions of Law

1. Carl Peve and Lester Morrell are supervisors of

Respondent within the meaning of Section 2 (11) of the

Act and are agents of Respondent as alleged in the com-

plaint.

2. By coercively interrogating its employees concern-

ing union activities and by threatening them with re-

2° Toward the end of the hearing the parties stipulated

that 9 of the 12 employees terminated, Bainbridge, Dunn,

Jones, Lambert, Geirnaeirt, Bickett, Wessels, Potter, and

Smith, applied for unemployment compensation with the

State of Illinois Department of Labor and in response to

a question posed by that agency reponded that they lost

their last jobs because of lack of work.

This was, of course, the thrust of the termination notices

which the employees received on January 13 and 14. The

date of the applications for unemployment compensation

and the surrounding circumstances do not appear. Under

the circumstances and weighed against the evidence ad-

duced in the instant hearing, I can attach little, if any,

probative weight to the facts alleged in the stipulation.

27a

prisals for engaging in union activities, Respondent has

violated Section 8(a)(1) of the Act.

3. By laying off and/or discharging the following

named employees:

James Bainbridge

Joseph Bickett

Leonard Dunn

Harry Fritch

Marshal] Geirnaeirt

Bernard Strouse

Harry Lambert

Harold Potter

Jerry Smith

William Wessels

Edwin Jones

William Washburn

because of their union union activities, Respondent has

violated Section 8(a)(3) and (1) of the Act.

4. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning

of Section 2(6) and (7) of the Act.

Remedy

To effectuate the policies of the Act, I find it nec-

essary and appropriate to order Respondent to cease

and desist from the unfair labor practices found and,

because of the character and scope of these unfair labor

practices, from infringing in any manner upon the rights

guaranteed in Section 7 of the Act.”

The unfair labor practices found also dictate the pro-

priety of directing affirmative remedial action. Accord-

ingly, I shall direct Respondent to reinstate the 12 em-

“ Brad’s Machine Products, Inc., 191 NLRB No. 15

(1971).

oes a aa

28a

ployees, above-named, who were laid off and/or dis-

charged on January 13 and 14, 1972, to their former

positions or, if such positions no longer exist, to sub-

stantially equivalent positions, and to make these em-

ployees whole for earnings lost as a result of their wrong-

ful terminations by payment to each of them of a sum

of money equal to that which each would normally have

earned, absent the unlawful discrimination, from the date

of his termination to the date of Respondent’s offer of

reinstatement, less their net earnings, if any, during said

period. Backpay shall be computed in the manner pre-

scribed in F.W. Woolworth Co., Inc., 90 NLRB 289, and

interest shall be added as prescribed in Isis Plumbing &

Heating Co., 138NLRB 716.

To facilitate and achieve these ends the remedial order

will include the customary record-keeping and notice-

posting provisions.

Upon the foregoing findings of fact and conclusions

of law, upon the entire record, and pursuant to Section

10 (c) of the Act, I recommend the following:

ORDER”

Respondent, the Pearson Bros. Company, its officers,

agents, successors and assigns, shall:

1. Cease and desist from:

(a) Coercively interrogating any of its employees

concerning union activities, or threatening employees

with reprisals for engaging in such activities.

In the event no exceptions are filed as provided by

Section 102.46 of the Rules and Regulations of the Na-

tional Labor Relations Board, the findings, conclusions and

recommended Order herein shall, as provided in Section

102.48 of the Rules and Regulations, be adopted by the

Board and become its findings, conclusions and Order, and

all objections thereto shall be deemed waived for all pur-

poses.

9

ee ok ee eee

29a

(b) Laying off, discharging, or otherwise dis-

criminating against any employee for supporting In-

ternational Molders & Allied Workers Union, AFL-

CIO; Chauffeurs, Teamsters and Helpers, Local No.

15, affiliated with International Brotherhood of Team-

sters, Chauffeurs, Warehousemen and Helpers of

America; or any other labor organization.

(ec) In any other manner interfering with re-

their rights under Section 7 of the Act.

Take the following affirmative action necessary to

effectuate the policies of the Act:

(a) Offer the individuals named hereunder im-

mediate and full reinstatement to their former jobs,

or, if those jobs no longer exist, to substantially

equivalent jobs without prejudice to their seniority

or other rights and privileges, and to make them whole

for their lost carnings in the manner set forth in

the section of the Trial Examiner’s Decision entitled

“Remedy.” The individuals are:

James Bainbridge Harry Lambert

Joseph Bickett Harold Potter

Leonard Dunn Jerry Smith

Harry Fritch William Wessels

Marshall Geirnaeirt Edwin Jones

Bernard Strouse William Washburn

(b) Notify immediately the above-named _indi-

viduals if presently serving in the Armed Forces of

the United States, of the right to full reinstatement,

upon application after discharge from the Armed

Forces, in accordance with the Selective Service Act

and the Universal Military Training and Service Act.

(c) Preserve and, upon request, make available

to the Board or its agents, for examination and copy-

188, PTI BAIN Me

30a

ing, all payroll records, social security payment rec-

ords, timecards, personnel records and reports, and

all records necessary to analyze the amount of back-

pay due under the terms of this Order.

(d) Post at its plant in Galva, Illinois, copies of

the attached notice marked “Appendix.” Copies

of the notice, on forms provided by the Officer-in-

Charge of Sub-Region 38, after being duly signed by

an authorized representative of the Respondent, shall

be posted by the Respondent immediately upon re-

ceipt thereof, and be maintained for 60 consecutive

days thereafter in conspicuous places including all

places where notices to employees are customarily

posted. Reasonable steps shall be taken by the Respon-

dent to see that the notices are not altered, defaced,

or covered by any other material.

(e) Notify the Officer-in-Charge, in writing, with-

in 20 days from the date of this Order, what steps

the Respondent has taken to comply herewith.

Dated at Washington, D.C. July 17, 1972.

/s/ Arnold Ordman

Arnold Ordman

Trial Examiner

3la

DECISION AND ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

On July 17, 1972, Administrative Law Judge Arnold

Ordman issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a support-

ing brief, and General Counsel filed a brief in support

of the Administrative Law Judge’s Decision.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has

decided ot affirm the rulings, finding, and conclu-

sions’ of the Administrative Law Judge and to adopt

his recommended Order.

*The title of “Trial Examiner” was changed to “Ad-

ministrative Law Judge” effective August 19, 1972.

*The Administrative Law Judge inadvertently sub-

stituted, in sec. II, B, 2, of his Decision, “Lambert” for

“Morrell” as being in charge of the shipping department.

That statement is hereby corrected to read, “Employees

Fritch, Bickett, and Lambert testified that Morrell was

in charge of, and gave orders to, the employees in the

shipping department.”

*In adopting the Administrative Law Judge’s conclu-

sion that the layoffs were discriminatorily motivated, we

note that such conclusion is further strengthened by evi-

dence not cited in his Decision. On January 14, 1972, em-

ployee Washburn, known by Respondent to have attended

the union meeting on January 10 and to have signed a

union authorization card, questioned Supervisor Peve

concerning the nine employees laid off, on January 13.

Peve’s response was, “You know damned well what hap-

pened. If you don’t keep your mouth shut, you’ll be next,”

and Washburn was laid off that night. ‘Thus, we find that,

while the evidence relied on by the Administrative Law

Judge is sufficient to support the finding that the layoffs

32a

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of

the Administrative Law Judge and hereby orders that

Respondent, The Pearson Bros. Company, Galva, Illinois,

its officers, agents, successors and assigns shall take the

action set forth in the said recommended Order.

Dated, Washington, D.C. October 31, 1972.

were violative of Sec. 8(a) (3) and (1) of the Act, Peves

reply provides additional conclusive evidence that Re-

—" discriminatorily selected the union adherents for

ayoff.

33a

COLIN INNT

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Before: LUTHER M. SWYGERT, Chief Judge, LATHAM

CASTLE, Senior Circuit Judge, and ROBERT A.

SPRECHER, Circuit Judge.

THIS CAUSE came to be heard upon a petition to

review, and on a cross-application for enforcement of,

an order of the National labor Relations Board dated

October 31, 1972, against The Pearson Bros. Company,

its officers, agents, successors, and assigns. The Court

heard argument of respective counsel on September 18,

1973, and has considered the briefs and transcript of

record filed in this cause. On October 2, 1973, the court

being fully advised in the premises, handed down its

order denying the petition for review and granting enforce-

ment of the Board’s order.

ON CONSIDERATION WHEREOF, IT IS ORDERED

AND ADJUDGED by the United States Court of Appeals

for the Seventh Circuit that the petition for review filed

by The Pearson Bros. Company, be and it is hereby

denied; and that the said order of the National Labor

Relations Board in said proceeding be enforced, and that

The Pearson Bros. Company, its officers, agents, successors,

and assigns, abide by and perform the directions of the

Board in said order contained.

IT IS FURTHER ORDERED AND ADJUDGED by the

Court that costs shall be taxed against the Petitioner.