Amicus Curiae Brief — National Labor Relations Board v. Gissel Packing Co.

- pete : 6

; - that it bad «virtually abandoned the Joy Silk doc-

‘* trine . ehegethan,” | as noted in. this ae opinion

- herein. ; }

-,The Board’s alleged new hiss: the ‘merits of ‘

which the amicus and other parties have not been af- ~

_ forded the oppertunity to brief and fully argue, raises

~ new.and serious issues which require resolution by this '

Court. For example, is the “key to the issuance of a

bargaining order . ... the commission of serious unfair .

‘-laboy practices that interfere with the: election proc- |

esses and tend to preclude the holding of a fair elec- .

tion’? (37 L.W. 4536 at 4540-1; emphasis supplied)

Or is it, conversely, as stated by this Court in the very ©

next sentence of its Decision, any employer ‘‘miscon-

duct’’?. (37 L.W. 4536 at 4541) The results in a par-

- ticular case, of course, may vary significantly if one,

rather than the other, of these criteria constitutes the ©

. controlling law. Without a clear resolution by. this

. Court the preciseness and predictability so necessary

in this significant area of the law will still only be

he mirage and: parties to Board proceedings will once

again be left to the shifting an cdnilicting cpinions of

the Board and the lower courts. 3

Similarly, this Court’s Decision is*subject to a vari-

ety of different, and even conflicting, interpretations

. which obfuscate, rather than clarify, the guidelines

by which it may be determined when an employer’s re- .

fusal ‘to bargain, accompanied by. interference with

the election processes, warrants issuance of-a ‘card-.

based bargaining order. It may thus be legitimately.

argued that any one of the following standards was,

that actually intended by this Court: |

(1) That a’ bargaining order is warranted, as

| urged by the Board in its new position, where "the coe

=f,

“

| employer commits “serious: unfair labor practices

that interfere with the election processes and tend

to preclude the holding of a fair election” (37 L.W.

4536 at 4540-1); -

(2) That a bargaini ‘order is warranted, as

_ this Court stated in United Mine Workers v.

_ Arkansas Oak Flooring Co., 351 U.S. 62 (1956)\

and reasserted in the Decision, where there is an'\

‘‘absence of any bona fide dispute as to the ex- \

istence of the required majority of. eligible em-.

ployees’’ (37 L.W. 4536 at 4542) ; ae

(3) That a bargaining order is warranted, as

this Court indicated in delineating the boundaries _ \.

of its Decision, where, although no unfair labor

" practices may have been committed, the employer’s

conduct was nevertheless sufficient to demonstrate

that ‘‘a fair election could probably not have been

held, or where an election that was held was in_

_ fact set aside” (37 L.W. 4536 at 4543, fn. 18) ;

| (4) That a bargaining order is warranted, as _-

- this Court noted in describing the issues involved

herein,. where the employer ‘‘has committed inde- |

_ pendent unfair labor practices which have made

the holding of a fair election unlikely or, which .

have in fact undermined a union’s majority and _

eaused an election to be set aside” (37 L.W. 4536

_at 4945; emphasis supplied) ; ; ;

(5) That a bargaining order is warranted, as

this Court ‘observed in indicating when a cease-

- and-desist order may not be an appropriate rem-

' edy, where the em loyer has succer. 4 by his

misconduet ‘‘in undermining a univ 3+ strength |

and destroying the laboratory cond.tions neces-

- sary for a fair election” (37 L.W. 4536 at 4546) ;

“or te E és

{6) That a bargaining order is warranted, as .

the Court stated in its summation of its present

holding, where ‘the Board finds that the possi-

Se ee

; bility 0 of i insuring a fair. eleation (or a tite rerun) ©

by the use of traditional remedies, though present, -

is slight and that employee sentiment once ex-

BS pheeel through cards would, on balance, be better

nt 4547). by a es. order’’. (37 L.W. 4536

- The different resuits which would hon rien one, caine ;

than the other, of the above standards require, a...

‘submitted, clarification by-this Court.°

The Court’s approval of authorization cards as a

predicate for a bargaining order underscores the im-

- portance of. the criteria by which the Board adjudi-

cates the validity of such cards. The Board’s Cumber-

land rule fails to establish adequately such criteria and

the Decision on this issue, as the result in part of in-

sufficient argument by parties who did not believe

that this question was before the Court, also fails to

establish such guidelines. What, for example, would

constitute ‘‘an approach any more rigid than that in

General Steel’’ or a ‘‘too easy mechanical application

. of the Cumberland rule’? (37 L.W. 4536 at, 4545)

These critical questions should not be left to future

litigation and the potential of conflict such as that

which preseatly exists between the Board and numerous:

appellate courts. If authorization cards are in fact to.

be a basis for bargaining orders then, surely, it should

be clearly specified as to those conditions which are

requisite to their validity. —

It is respectfully submitted that the _— of this

Court to prescribe standards will permit the Board to

8 See, eg., the Court’s utilization of, and reliance on, appropri-. —

ate standards in the application of another provision of the Act in

Local 761, IVE v. NLRB, 366 U.S. 667 (1961), where the Court

articulated specific gilidelines for determining the legality of re-

served gate picketing under Section 8(b) 4(A) of the Act.

OA

9

revert to its prior policy simply by changing labels.

As an example, in Nat Harrison Associates, Inc., 177 -.

NLRB No. 24, (printed as Appendix B hereto) made -

public July 2, 1969, the Trial Examiner ordered card-

_ based bargaining upon the employer’s.lack of ‘“‘good- —

faith doubt.’’ The Board in its decision, rather than.

. sending the case back to the Trial Examiner -for new

findings consistent with this Court’s decision, adopted -

pro forma the findings, conclusions and recommenda: ©

tions of the Trial Examiner and then simply dropped

a footnote which rephrased the Trial Examiner’s lan-

guage to comport with the Court’s decision herein and

assumed findings neither amar ieives ‘nor found by the

trial examiner. .

CONCLUSION

‘> For the foregoing reasons, the Federation iit

, fully requests that the Petition for Rehearing of Gen-

“eral Steel Products, Inc. and Crown Flex of N orth

| Carolina, Ine. be granted. |

P Respecthliy mibicnitiod,

Barce I. Busxor

Pum B. Hammonp

Suite 420

1819 H Street, N. W.

- Washington, D. C.

Attorneys for American

Retail Federation as

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SuimMe., Hm & BisHop

Suite 420

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. . Washington, D. C.

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la

APPENDIX A

FOR RELEASE AFTERNOON PAPERS

JUN E 19, 1969“

’ D-2000

Zanesville, Qhio

UNITED STATES OF AMERICA

BEFORE THE NATIONAL ‘LABOR RELATIONS BOARD

ae antl Cases 8-CA-5100, 8-CA-5108

- Cuay Crry Beveraces, Ino.

| and

_ INTERNATIONAL Moupers & ALLIED WokKERS

_ Union, AFL-CIO |

sare Descision and Order

‘On February 10, 1969, Trial Examiner Thomas §S. Wilson

issued his Decision:in the above-entitled proceeding, find-

ing that the Respondent had engaged in and was engaging

in certain unfair labor practices and recommending that

it cease and desist therefrom and take certain affirmative

action, as set forth in the attached Trial Examiner’s Deci-

sion. Thereafter, the Respondent filed exceptions to the

Trial Examiner’s Decision and a brief in support. |

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 powers in connection with

_ this case to a three-member panel.

The Board has reviewed the rulings made by the Trial

Examiner at the hearing and finds that no prejudicial error

‘was committed. The rulings are hereby affirmed. The

Board has considered the Trial Examiner’s Decision, the

‘exceptions, the brief, and the entire record in this case,

and hereby adopts the findings, conclusions, and recom- .

mendations of the Trial Examiner to the extent consistent,

| herewith.

ae...

| a The Facts ve |

The Respondent operates a small plant in Zanesville,

Ohio, where it bottles soft drinks for wholesale distribution

ey throughout the immediate area. The majority of the stock

‘of the Respondent is owned. by Okey Johnson, but the

actual operation of the plant and the distribution of its

' products is controlled by his sons, Richard and Bradley - |

Johnson. The Respondent normally employs approxi-

mately 12 employees in its production operations, exclusive |

of supervisors, clerical employees and salesmen." ;

In the middle of July 1968, following some talk concern-

ing unionization among the Respondent’s employees, Lloyd

Paxton, a filler operator, obtained authorization cards from

“@ representative of the Union. On the evening of July

/19, 1968, 10 of the employees met in a vacant yard, and

after some, diseussion Paxton distributed the authorization

cards. All 10 of the employees signed the cards and -re- '

turned them to Paxton, who in turn delivered thé cards to

a representative of the Union. On July 23, 1968, Paxton

was discharged and on the following day the. Union unsuc-

_eessfully requested’ recognition and bargaining with the ~

Respondent on the basis of its status as the-majority rep-

resentative of the employees in an appropriate unit. On —

July 25, 1968, because of the discharge of Paxton and the

Respondent’s refusal to recognize and bargain with the

Union, the employees went out on a strike, which continued

until September 23, 1968.

1 We agree with the Trial-Examiner’s finding that the unit stipu-

lated to by the parties, consisting of all production and maintenance

employees employed at the Respondent’s plant at Zanesville, Ohio,

* excluding all office clerical ‘employees, professional employees,

guards and supervisors as defined in the Act, is a unit appropriate

for the purposes of collective bargaining.

-&

violated the Act.

| «8a

The 8(a)(1) Conduct

We agree with the Trial Examiner’s findings that the

Respondent: violated Section 8(a)(1) of the Act by the in-

-terrogation of employee, Roy Agin, and by the letter it |

directed to its employees engaged in an unfair labor, prac-

tice strike threatening them with discharge unless they

+ abandoned their strike and returned to work by August .

5, 1968.- As to the latter violation, the Trial-Examiner in-

_ advertently failed to make a conclusion of law, and we |

shall, accordingly, modify his Conclusions of Law and

Recommended Order to this extent. We similarly find,

in agreement with the Trial Examiner, that an additional .

violation of Section 8(a)(1) ensued from the remarks made

by. Okey Johnson to Union Organizer Kisner on August 14, -

1968, to the effect that the strikers would be reinstated

only if the Union abandoned its demand for recognition and

bargaining, and that ‘Paxton would not be reinstated at

all because he was the ‘instigator’? of the Union and the

strike. At the time Okey Johnson made these remarks,

the Respondent had already threatened the employees with

| discharge for failure to abandon the strike, and condition-

ing their right to further employment upon a total renuncia-

tion of their union activities and desires for collective bar-

gaining constituted a further act 3 interference, restraint,

_ and coercion.

For the reasons set forth Seoiin: we also adopt the Trial

Examiner’s finding that the Respondent violated Section

8(a) (1) by failing to pay to the employees who participated

in the’ strike the $10 bonus it paid to the employees who

remained at work. Considering the evidence in the pesture

most favorable to, the Respondent’s contention that it had

‘promised the employees a $10 bonus when’ production

reached 4,000 cases a day, and that this production figure

was reached on July 24, 1969, we find that the strikers were

employed and working on the day the bonus was earned

and accrued. Accordingly, the Respondent’s payment of |

the bonus only to those who desisted from strike activity

| : | t 4a’

. The 8(a)(3) Conduct —

Contrary to the contention of the Recphadint, we find

that the record adequately supports the Trial Examiner’s —

findings that the Respondent was fully aware of the union —

activities of Lloyd Paxton-and the extent of his participa

tion in the organizing campaign, and that Paxton’s union

activities were the motivating ‘and. immediate cause for |

his discharge. During the coarse of the unlawful interroga-

tion of Roy Agin by the Johnson brothers on the evening

of July 22, 1968, Agin identified Paxton as the employee

who had the authorization cards, and he also informed —

the Johnson brothers that all the empioyees had signed

cards. When Paxton appeared at work on’ the following

morning he was immediately called to the office and sum-

marily discharged. At the meeting of Augnst 14, 1968,

Union organizer Kisner renewed the Union ’s request for

' recognition and bargaining; and he also requested that the

Respondent reinstates Paxton. In response to the latter

request Okey Johnson replied that the Respondent would

. never take Paxton back because he was the ‘‘instigator’’ -

of the Union and .the strike, and Paxton was responsible

for destroying a valuable piece of property. ;

a = ae contends that Okey Johnson’s reference

to the destruction of property supports its contention that

Paxton was discharged: for unsatisfactory operation of

the bottling machine. We agree with the Trial Examiner

that there is no merit to this contention. Moreover, assum-

ing that Okey Johnson’s refusal to reinstate Paxton was —

based in part on grounds of his alleged unsatisfactory per- |

formance on the bottling machine, this fact would not justify —

a finding that his discharge was not unlawful where as. .

here the discharge was motivated at least i in substantial

| past by aad union activities.”

2N.L.EB.B. v. Great Eastern Color Lithographic Corp., 309 F.2d

352 (C.A. 2), enfg. 133 NLRB 911, cert. denied 373 U.S: 950. \

5a. - |

"The 8(a)(5) Conduct

We find, in accord with the Trial Examiner, that when

' the-Union demanded recognition and bargaining on July -

- 24, 1968,-it represented an uncoerced majority of« the em-

_ Ployees in the stipulated appropriate unit, and that. the

Respondent’ rejection of the demand was motivated, not

_ by @ goad-faith doubt of the Union’s majority, but by a

rejection ef the collective-bargaining principle and’a desire

. to gain time to undermine the Union’s majority The Re-

spondent contends, névertheless, that it was not obligated

to recognize or bargain with the Union because Richard

Sanders, who it contends is a supervisor, participated in

the Union’s organizing campaign. n,

Contrary to the Trial Examiner, we find ‘that Sanders’.

change from a salaried to an-hourly-paid position at or

about the time Fred Tahyi was. hired in February 1968,

did not, without more, deprivé him of his supervisory re-

sponsibilities and authority. Sanders testified, without

contradiction, that his duties and responsibilities after his

change to hourly-paid status were ‘‘about the same’’, and .

that he ‘‘still had the right to hire and fire and was over

the boys.’’ Every other witness who testified at the hear-

ing, including the employees, stated that at all times

Sanders had authority both to hire or fire and authority to

direct the work of the employees. We find, accordingly,

that.Sanders was a supervisor at all times material to this -

case, and we shall exclude him from the bargaining unit. ,

_ Having found Sanders to be a supervisor, it does not

necessarily follow, however, that his signing of an author-

ization card and limited participation in the organizing

campaign is sufficiént to taint the authorizations sigtied

by the employees. The organizing campaign was of. ex-

tremely, limited duration, having begun in mid-July and

| 8 Joy Silk Mills, Inc. v. N.L.BB., 185 F. 24 732 (C.A.D.C.), cert.

denied, 341 U.S. 914. | 3

>

S

6a

uiibidite on J uly 19, 1968, when 10 employees attended

a meeting in a vacant lot. Sanders engaged in some lunch- -

- .time conversations with employees about the Union. He

attended the July 19 meeting, signed a card, and consider-

ing the evidence in the light most.favorable to the Respond-

ent’s contention, Sanders also answered questions of an

unspecified nature while present at the meeting. Neverthe-

less, Paxton obtained the cards from the Union, and he

alone’ solicited the ‘signatures. The authorization cards

were returned to Paxton, and he made them available to

the Union. In addition, Sanders was.a low-level supervisor,

and testimony indicated that the ‘Respondent was in no

, way chargeable with Sanders participating in the cam-

‘paign. Under these circumstances, and particularly as the

record fails to show the nature of Senders’ statements dur-

ing the lynch-time conversations and at the July 19 meeting,

we find that ‘Sanders’ participation in the organizing ‘cam-

' paign di not taint the-cards of the employees,* and since

the invalidation of. his card ‘alone does not reduce the.

number of valid cards below a majority, we shall adopt —

the Trial Examiner’s findings and Recommended Order

with respect to the refusal to bargain.

- Amandéd Sislinitins, of Law

The followitig is substituted for the Trial ienuibnahs S

fourth Conclusion of Law:

4, By. interrogating its employees villas their union

| membership and activity, by refusing to. pay to strikers

the same $10 bonus for prestrike production achievement

that was paid to nonstrikers, as an economic reprisal for |

engaging in a strike, and by threatening its employees en-.

gaged in an unfair labor practice strike with discharge in

‘a letter dated August 2, 1968, the Respondent has engaged

in interference, restraint and coercion in violation of Sec-

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

4 Aero Corp. v. N.L.R.B., 149 NLRB sans, enfd. 363 F. 2d 702,

cert. denied 385 U.S. 973.

7a |

ORDER _ | My 3

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 Trial

Examiner, as inodified herein, and hereby orders that the

Respondent, Clay City Beverages, Inc, Zanesville, Ohio,

its officers, agents, successors, and assigns, shall take the

action set forth in the Trial Examiner’s Recommended -

Order, as so modified : :

1, Delete paragraph 1(c) of the Trial Benmaisies* s Rec-

' ommended Order and, substitute therefor the following:

(c) Intefrogating its employees with regard to their

union membership and activity, threatening them with dis-

charge unless they abandon protection activities, condi-

tioning their reinstatement upon abandonment of protected

activities, and refusing to pay a bonus to employees be-

cause they engaged in protected activities. :

2. Add the following as paragraph 1(d) of the Trial

Examiner’s Recommended Order:

(d) In any. other manner interfering with, restraining,

or coercing its employees in the exercise of — guar-

anteed in Section 7 of the Act. -

3. Add the following as paragraph 2(b), and sees a the —

following paragraphs accordingly :

_.*(b) Notify the above-named dati if: presently serv-

ing in the Armed Forces of the United States, of his right

‘ to full reinstatement, upon. application, i in accordance with

the Selective Service Act and the Universal: Military Train-

* ing and.Service Act, as amended, after a from the:

Armed Forces.

4. Add the following as sasiaali 3:

3. All allegations in the complaint 1 not specifically found

herein are hereby dismissed.

Ba

. 5. Delete the fourth indented ne of the ee

and substitute therefor the following :

WE WILL NOT interrogate our employees with re-—

gard to their union membership and activity, threaten

them with discharge unless they abandon protected

activities, condition their reinstatement upon abandon-

ment of protected activities, refuse to pay them a

bonus because they engaged in protected activities, or

- _in any.other manner interfere with, restrain, or coerce

our employees in the exercise of their right to self-

organization, to form, join, or assist International

.Molders & Allied Workers Union, AFL-CIO, er any

other labor organization, to bargain « collectively

through a representative of their own choosing, to.

engage-in concerted activities for the purpose of col-

lective bargaining or other mutual aid or protection,

or to refrain from any such activities, except to the

extent that such right may be affected: by an agree-

- ment requiring membership in a labor organization

‘as¥ authorized by Section 8(a) (3) of the Act, as

amended. *

6. Add the following as the last indented paragraph of °

. the Appendix:

WE WILL notify the daiiienlinnd litte: if pres-

ently serving in the Armed Forces of the United States,

of his right to full reinstatement, upon application, in

accordance with the Selective Service Act and the

' Universal Military Training and Service Act, as

~ amended, after discharge from the Armed Forces.

asp er D.C.

Frank W. isteach,

Chairman

Howakp JENKINS, Ir.,

Member

Sam ZaGORIA,

Member

fim) .. National Labor Relations Board

—

PDS TPT RS STS: LONE LA TIL § ee ee Te ESR Pe Se Ae serra et - ae soe a ;

- . ao mits AE is TN Ata Sitiodombenese: .

TXD—26—69

| Zanesville, Ohio —

UNITED STATES OF AMERICA |

BEFORE THE NATIONAL LABOR RELATIONS BOARD —

‘DIVISION OF TRIAL EXAMINERS

_ WASHINGTON, D.C.

Cases 8-CA-5100, 8-CA-5108

Ctay Orry Baveraaes, Inc.

. a ; and.

INTERNATIONAL Motpers & ALLIED WoRKERS

Union, AFL-CIO

Charles Z, Adamson, Esq., for the General Counsel:

Charles D. Minor, George L. ‘Jenkins, and Jon M. Cas-

sady, Esqs., of Columbus, Ohio, and ere Ohio, re-

spectively, for the Respondent.

Mr. Cl@yton E. Kisner, of Marion, Ohio, for the Union.

‘Trial Examiner's Decision

Statement of the Case

-. « THomas 8. Wuson, Trial Examiner: Upon a wanes in

Gens 8-CA-5100 duly filed on July 29, 1968, and a charge in

_ Case 8-CA-5108 duly filed on August 2, 1968, and there-

_after amended.on August 21, 1968, by International Molders —

& Allied Workers Union, AFL-CIO, hereinafter called the

Union or Charging Party, the General Counsel of the

National Labor Relations Board, hereinafter referred to

as the General Counsel* and the Board, respectively, by

the Regional Director for Region 8, Cleveland, Ohio, issued

its consolidated complaint dated September 20, 1968,

against Clay City Beverages, Inc., hereinafter = to

as the Respondent. |

a This term specifically: includes the attorney appearing for the

General Counsel at the —

ae

The complaint alleged that Respondent had engaged in

and was engaging in unfair labor practices affecting com-

merce within the meaning of Section 8(a)(1), (3), and (5)

and Section 2(6) and (7) of the Labor Management Rela-

tions Act, 1947, as amended, herein referred to as the Act.

Respondent duly filed its answer admitting certain alle- -

gations of the complaint but denying the commission of any

| unfair labor practices. |

Pursuant to notice a hearing Giateon was held before me

in Zanesville, Ohio, on November 13, 1968. All parties

appeared at the hearing, were represented by counsel, and |

' were afforded full opportunity to be heard, to produce and

cross-examine witnesses, and to introduce evidence material

and pertinent to the issues, At the conclusion of -the

hearing, oral argument was waived. Briefs were received

from Respondent and from General Counsel on December

23, 1968. .

“Upon the entire record in ‘the case and from my observa-

tion of the witnesses, I make the following :

Findings of Fact

I. The Business of Respondent

‘The complaint alleged, the answer admitted, and I find

that: Clay City Beverages, Inc., is now, and has been at

all times material herein, a corporation duly organized.

under and existing by virtue’of the laws of the State of

Ohio, engaged in bottling and wholesale distribution of

soft drinks at its Zanesville, Ohio, location. Annually, in

the course and conduct of its business, Respondent receives

at its place of business in Zanesville, Ohio, goods valued

in excess of $50,000 tae d from points located outside

’ the State of Ohio. |

Accordingly, I find that oe is now, and has been

at all times material herein, an employer engaged in com-

merce within the meaning of Section 2(6) and (7) of the

Act, :

a

II. The Union Involved

International Molders & Allied Workers Union, AFL-

CIO, is a labor organization admitting to oe em- ;

—— of ee

II, The Unfair Labor Practices .

A. The Facts |

From the point of view of the employees this case begins.

about the middle of July 1968. From the point of view of

Respondent the case eUEDOSOY — before Thanks-' +

giving 1967.

For some years Respondent’ s bottling works in ——

ville, Ohio, had been owned and operated by Okey Johnson

(Okey) as Chairman of the Board and his sons, Richard

Johnson (Richard) as president and. general manager, and

Bradley Johnson (Brad) as secretary and plant manager.

According to the testimony of Richard, Okey held the con-

trolling financia] interest in the business of Respondent but

had not participated i in the management of the business for

some years prior to the events here because of a problem

with alcohol although he remained as Chairman of the

here.

Exclusive of the Johnsons, Respondent’s plant was oper-

ated by 11 production and maintenance employees and i

transport driver. In accordance with the stipulation of

the parties I find that these 11 production and maintenance

employees and 1 transport driver constitute the ———

unit herein. |

_. Prior to some indefinite teins in May 1968, Respondent’s

filler or bottling machine had been an old one of German

make. As Richard Sanders, one of Respondent’s senior .

employees in point of service ‘ond at the time of the hearing.

either Respondent’s assistant plant manager or assistant

Board of Respondent. Okey was not called as a witness

zy ae 12a:

peplaction manna described ‘it, “the old machine. was” |

kind of hard-to run anyway..It was not the best.’? Fred

Tahyi, temporarily also a production manager, déscribed~~

the machine as ‘‘worn out.’’ The infirinjties of the-machine

_-- were those not unknown to numerous bottling. companies:

partly filled bottles, caps askew, foreign objects in the

bottle contents, and not infrequent machine breakdowns.

About Thanksgiving time in 1967 Brad Johnson took the

_ problems to the manufacturer of the machine who, not un-

naturally, assured Brad that the trouble was with the

_ operator and not the machine. Despite this assurance,

however, the manufacturer rebuilt the. feeder head of the

_. machine twice thereafter in the year 1967. Finally about

February 1968 Respondent decided to replace that machine

with a newly febuilt one. The date the newly rebuilt ma-

chine actually replaced the old one was left highly indefinite |

in this record although the evidence indicates that it must

_ have‘ been sometime during-the month of May 1968. Be-

tween February 1967 and July 23, 1968, Lloyd Paxton was

the bottling machine operator following his promotion from |

-the position of a transport driver.

In the latter part of February 1968, one Fred Tahyi sold

the beverage. business he conducted in Coshocton, Ohio, to

Respondent and accepted a job thereafter with Respondent

which, according to Tahyi and Jolinson, was supposed to

be*that of production manager. Tahyi apparently replaced

Richard Sanders as such assistant production manager, a

salaried position which Sanders had been filling prior to

the hiring of Tahyi.- At or about the time of Tahyi’s em-

ployment Sanders suddenly lost his salaried position and

became an hourly paid employee. During this period

Sanders was ordered to show Tahyi how to run Respond-.

ent’s machinery. However about the end of April and

2 The Johnsons and Sanders used both titles indiscriminately to

. describe both the job Sanders held prior to April 1968 .as well

as the ‘‘new’’ job he received on July 23, 1968.

—— Docc aN POLIO LOOT EL LIT LE NI OLY TP SIA ———

i a ig to pe nthe : ee

. =

ol

before the arrival of the. new bottling machine Tahyi left.

Respondent ’s employ. Sanders remained a rank-and-file |

hourly paid employee until he was offered a ‘‘new’’ posi-

_ tion of assistant plant manager or assistant~production

manager on a salary basis on the evening of July 22, 1968.

About the middle of July, following some talk. of union-

ization among the employees, Lloyd Paxton secured some

union authorization cards from:a local union official em-

ployed in a nearby plant. ' 7

' After work on Friday, J uly 19, through notice by word of

mouth in the plant, 10 of Respondent’s production and

maintenance employees, including Richard Sanders, gath-

ered at a vacant lot located at Fifth Street and Howard

Avenue in Zanesville, ‘114 blocks from Respondent’s plant,

where Paxton passed out the union authorization cards to

the employees and with the help of Richard Sanders ex-

plained what they were. All 10 of the employees present

signed and witnessed this signing of these unambiguous.

union authorization cards. Those employees attending and -

signing such authorization cards were employees Roy Agin, -

David Bon.tield, James Dobbins, Terry Dobbins, Homer

Keiffer, Dennis Moorehead, Lloyd Paxton, Richard San-

- ders, Robert Seenes, and David Vandenbark. The cards

so executed were given to Paxton who thereafter delivered

‘the signed cards to his friend, the union official.

As employee Roy Agin was about to get into his auto-

mobile parked across the street from the plant after work

on the evening of Monday, July 22, Richard arid Brad John-

son called him back across the street in front of the plant

_ and asked him what he knew about the Union. At first Agin

denied knowing anything about the Union. Richard ‘then

stated that he knew the employees ‘‘were trying to gef a

union in’’ and wanted ‘‘to know who all were involved in

it.”’ He also stated that a union would cause nothing but

trouble in the plant. Agin then told the Johnsons that

Lloyd Paxton was ‘‘the one that had the cards’’ and that

‘

° . . “

. 4 -

. ’ . ‘

— «

> : > F

ad e 7 = Sa WLIO GOOD IOS:

. enaeroun ‘ ace

“Ida

all the employees had signed them. Richard assured Agin.

that he, Richard, ‘‘would not say anything to anybody that

he had had that eonversation’’ with Agin and Agin agreed

to say nothing about it either. The conversation ended on:

this note:

Later that same evening of Monday, July 22, the John-

sons telephone Richard Sanders at Sanders’ home while

he wasbathing after work and asked him to return to the

plant in order that they might talk to Sanders about ‘‘mov-

ing up a step.’? When Sanders returned to the plant

Richard asked Sanders how Sanders ‘‘ would like to become

. Brad’s assistant production manager’’ on a stated

salary because they thought Sanders would be ‘‘the best’’.

for. the job with his knowledge of plant operations due to

‘his: long tenure in the plant. Sanders said that he would”

discuss the salary with his wife and would let the John-

sons know the next morning. During this discussion the

J ohnsons expressed the opinion that Lloyd Paxton ‘‘was —

‘not doing the job he should be doing”’ and that they thought

they were going to let Paxton go. With that Sanders left

the plant.

On July 23 wheri Paxton appeared ‘tee work as usual,

Brad took him into the office and told him in- front of

Richard that ‘‘the bottles were going down the line with

crowns not on properly; they were not properly capped;

[Paxton] had been sitting around too much-and [his]

services were no longer needed.’? Brad then handed him

a check for 45 hours’ work so that Paxton could look for ~

’ another job.’ He has not been reinstated since.

- - On July 24 Union Organizer. Clayton E. Kisner appeared

in Zanesville in response to a.telephone call from Paxton

notifying him of the signed authorization cards and his own .

discharge. At noon he and Paxton met the employees at

lunch across the street-from the plant.* Although the em-

s Sanders was not present at this or any other subsequent meeting i

ofthe employees.

lida

ployees talked in favor of immediate strike because of the

discharge of Paxton, Kisner requested time for him to talk

to the Johnsons about the cars and reinstatement before

any action was taken. © P

Although he was then in the immediate vicinity of the

-plant, Kisner chose’to telephone Richard Johnson. Over

the phone Kisner asked for recognition as he had signed

@ union authorization cards for ‘‘a majority (10 out of 12)

of the twelve employees” in the stipulated appropriate

unit. After some talk as to how this majority could, be

verified, Richard said that he could’ do nothing because his

lawyer was out of town.

That evening following this telephone call, Kisner and

Paxton again met with eight employees at Putman Hill

Park where Kisner reported to them his lack of success

with Richard. The ompsoyete present decided to strike

the plant the next morning.*

At7 a.m. on July 25 employees Agin, Caihaad Boni-

field, Terry Dobbins, and Jim.Dobbins went out on strike

_and with Paxton began picketing the plant. The other em-

-. ployees returned to work apparently being bothered by

the financial loss to them in engaging in such a sfrike.

On July 26, having beén unable to reach Richard by tele-

phone, Kisner telephoned Okey Johnson. Again Kisner.ex-

plained that he represented a majority of the employees

and requested recognition by Respondent and reinstatement

of Paxton. Okey*answered that he and ‘‘the boys’’ (Rich-

ard and Brad) would have a meeting the next Monday and

' would talk the matter over with Respondent’s attorney

who was in charge of the" matter. That concluded the

telephone call. .

4 The employees present were Terry Dobbins, Dave Viasinbid,

Paxton, James Dobbins, Robert Seenes, Homer Keiffer, _ Agin,

and David Bonifield.

p 16a

Also on July 26, 1968, Respondent rewarded each of’ the

employees then working in the plant with a $10 bonus.

_ On Monday evening, July 29, Kisner itelephoned Rich- -

ard at his home and asked him if Respondent had come |

to any decision on recognition and reinstatement. Richard.

indignantly refused tg discuss business from his home,

telling Kisner that he would only conduct business i in his .

office, and hung up the telephone. |

On A t1 Richard saw Agin, Vandenbark, ‘Sin

Dobbins, Bonifield still on the picket line and invited

them to return to work. They refused. On Friday, August

2, Respondent wrote-each of them the following letter:

We are asking you to return to your job Monday, ‘

August 5, 1968, at 7:00 A:M. This is the last date

your job will be held for you.

‘This renews our request of last Priday to return to .

work. |

If you fail to report for work on Monday morning, we

will consider your employment terminated and all con-

nection with our aad ended.

None of the four remaining pickets returned to work.

Then on August 14 Kisner, through the intervention of

one Cecil C: Fulton, a good friend.of Okey’s and a former

- retired official’ of the lecal union, met with Fulton and -

-Okey in the plant office. Upon being asked for recognition |

and for the reinstatement of Paxton, Okey stated that Re-

spondent would take the four remaining strikers back to

work provided that Kisner forget the whole thing and went .

back to his base at Marion; Ohio. Kisner refused that

. offer. Okey also.stated that Respondent would never take

Paxton back even if they had to go to the highest court

possible on the grounds that he was “‘the instigator’’ of

the Union and of the strike-and was responsible for destray-

ing a very valuable piece of property. ,

A oA One!

, ‘a a |

Richard saw Okey driving himself to and from this meet- -

. ing'in his automobile. Both he and Brad:knew that Okey

was meeting with Kisner, the union organizer, in Respond-

ent’s office but, as Bichard testified, ‘¢,.. 1 stayed out of

the office especially: »* There is andenied testimony that

Richard and’ Brad were invited to participate in the meet-

ing but réfused.

Under date of September 18, 1968, Respondent sent each

of the four remaining pickets the following letter : 8

We are asking you to return,to your job Monday, Sep-

tember 23, 1968, at 7:00 A.M. This offer is uncondi-

‘tional.

The company has salted to carry on your insurange

program in your absence. You have lost no other bene-

~—~fits which you has. acquired during the course of your ©

employment with us. ,

“2

“Iti is our sincere hope that you will accept this offer.

. In response all four of these employees returned to work:

Subsequently two of them voluntarily left —

employ.

B, Conclusions.

1. Discharge of Paxton

From February 1967 to July 23, 1968 Lloyd Paxton prmeke

ated Respondent’s bottling machine following his promo-

tion from his former transport driver position. The John-

sons admit that his services on the filling machine for the .

first half of that period had been satisfactory. Moreover

neithér Johnson could recall ever having criticized his

work to Paxton during that whole period.

Then on July 19, a Friday, by word of mouth, Paxton

gathered 9 of the other 11 production and maintenance em-

_ ployees in an open field 114 blocks from the plant, explained

*

‘

18a |

the Union and its authorization cards to the assembled em-

ployees, and succeeded in having all of them execute un-

ambiguous cards authorizing the Union-to bargain on their

behalf. Richard Sanders was one of the employees éxecut-

‘ing such authorization cards at this meeting.

On Monday ‘evening, July 22, employee Roy Agin: testi-

field that Richard and Brad asked him about the Union and

who were imvolved.and that he informed them that Paxton .

had brought the union cards and had signed up all the em-

ployees. Both Agin and Richard agreed that the conversa-

tion would be kept secret.5 The next morning, July 23,

Paxton was precipitously discharged aad for poor

| workmanship.

Subsequently on August 14, ay Johnson, Respondent’s

‘Chairman of. the Board, rather vehemently refused the

Union’ s request for the ‘reinstatement. of Paxton ‘on the

grounds that: he was ‘‘the instigator’’ of the Union and of.

the strike.and the destroyer of valuable property.®

With the ‘above evidence General Counsel has proved a

strong prima facie-case of a typical type of discriminatory -

discharge. The weak~spot in the case, if any, appears to

be the question of Respondent’s knowledge’ of Paxton’s

union activity priot to his discharge. This, of course, is .

amply supplied by the Agin-Richard and Bradley conversa- -

tion on the evening of J uly 22 to the effect that Paxton was

the ‘instigator of the union effort and the strike and by the

~ admission on August 14 that Paxton had been fired because

he was such instigator. ' The trouble, if any,‘as to: these

" pieces of evidence arises because both Richard and Bradley

ones 1 flatly — they had had any. a on- July

| 7 5 Both J emai en flatly denied neat any such con-

versation occurred. —

8 This last must have been a neferesio’ to Respondent’ s business

' because there is no evidence in this record to the effect that Paxton ,

a or injured any machinery.

. 19a -

22 with Agin’ and also claimed that Okey was a chronic

alcoholic and on August 14 was “completely inebriated’’..

This testimony naturally creates a credibility question as to

both the above pieces of evidence.

In addition to the credibility problems thhs raised, Re-

spondent in its brief argues that the refusal-to-bargain alle-

gations must be dismissed with the following argument:

It is submitted, however, that whether or not the

company liad a good faith doubt as to the Union’s ma-

jority status, there is no violation of Section 8(a) (5)

‘of the Act for another, on. Due to the active par-

ticipation and leadefship of Richard Sanders in its

- organization campaign, the Union, on July 24, did not

represent a majority of the employees within the bar-

gaining unit. As is stated in ATI Warehouse, 169

NLRB No. 75, 67A.RRM 1256 (1968) :

- » It is well settled that cards obtained with the direct

and open assistance of a supervisor are invalid for

such purposes. (For the purpose of a bargaining

request. ) eas

However, if this argument be sound, the problem of Re-

spondent’s knowledge of Paxton’s.union activities is like-

wise solved because, as a supervisor, Sanders’ admitted.

. knowledge of Paxton’s union activities would be imputed

to.Respondent as a supervisor’s knowledge is that of the

employer.

Despite the brief’s claim: ‘“‘there is:no question as to

Richard Sanders’ supervisory position,’’ the y trouble

with this theory of imputed knowledge is that the above

fact so stated by Respondent is incorrect in that for several

months prior to receiving his ‘‘step up” to assistant plant

or assistant production manager on J uly 23, Sanders had -

been reduced to the status of an ordinary hourly paid em-

ployee without supervisory authority which during his

|

f

}

20a ;

employment by Respondent had passed to Fred Tahyi. In

. fact it was this reduction to an hourly paid status which

caused Sanders to become interested in the Union. As such

ordinary rank-and-file employee the Act guaranteed San- — |

ders the right to engage in union activities as of that time:

However, Sanders testified that he never told the John-

sons of.this union organizational activity because, as he

put it, ‘‘I wasn’t going to tell Richard or Brad because

I figured they would find out for themselves and all in due

time.” Regardless of the fact that Sanders testified that

he had never informed the Johnsons of his attendance at

the July 19 meeting until the very day Respondent called

him as a witness at the hearing, I find no reason to dis-

believe Sanders on that point although doubting the last

_ part of his testimony.

Sanders’ testimony, héwever, strongly leietiite that due.

_to the smallness of the plant with only 12 production and

maintenance employees the Johnsons were bound to learn

quickly of any and all union activities therein.’ I must

agree. In a plant of this size it is, of course, possible, but

highly improbable, that Respondent: would not become

aware almost immediately of the existence of union activity.

therein. Miracles dd happen—but infrequently. -

Leaving for the moment this disputed question of knowl-

edge, the Johnsons also contended that for the last half

of his tenure on the bottling machine, the complaints of

' Paxton’s work ‘‘increased progressively’’ so that as early

as November-1967, Richard and Brad bégan serious con-

_ sideration of dismissing Paxton for poor workmanship.

According to both the Johnsons, they became corivinced ’

that the troubles in bottling were those of Paxton and not

those of the old German machine when its manufacturer,

without having seen the machine, so informed them. De-

spite this alleged conviction that the trouble was Paxton’ 3,

the facts disclose that thereafter the machine manufacturer

rebuilt the feeder head on the machine—not one but indeed

.

21a

twice—and still the trouble continued. Thus the facts

justify Tahyi’s appraisal that the machine was ‘‘worn out”’

and Sanders’ that the machine ‘‘was not the best.’’ In

fact the Johnsons themselves decided in February a new

machine was necessary. This history is quite sufficient

proof that the problem Respondent here attempts to blame

-upon Paxton was that of the machine and not of the

operator: j

‘The Johnsons’ contention that the volume of complaints

‘*increased progressively’’ right up to the end of Paxton’s

‘employment is at odds with the testimony of Respondent’s

own sales manager, Richard Glaub, who testified that

“normal complaints”’ continued throughout Paxton’s em-

ployment but that he knew of “no increase’’ therein. It

is noteworthy that Glaub was -.not asked and therefore did

not testify about the sale meeting supposedly held on July ©

' 22 where the increase in the complaints, according to the

Johnsons, fmally caused them to decide to discharge Pax-

ton. If anyone would know of complaints about the mer-

‘chandise sold, it would be the sales manager.

Because of the disparity between the testimony of Glaub

. and the Johnsons, I have grave doubts that the sales meet-

. ing of. July 22 ever took place and that the complaints ©

““pragressively increased.’’ Cu,

The Johnsons further testified that they began search-

‘ng for an experienced operator of bottling machines to

Teplace Paxton as early as November 1967. -This search

was finally consummated on July 29, 1 week after Paxton

had been discharged, when Respondent hired a returned

serviceman with absolutely no experience on a bottling

machine, although the Johnsons testified that such expe-

rience was a necessity. _ |

Respondent attempts to explain its delay in hiring a re-

Placement for the allegedly inefficient Paxton on the for-

tuitous fact that in February 1968, it bought out Tahyi’s -

22a

bottling business in Coshocton and unibinen Tahyi with

alleged plans to make Tahyi assistant production manager

replacing Sanders who in turn would replace Paxton.

Tahyi, in effect, collaborated this testimony by the John-

sons albeit, in this Trial Examiner’s opinion, with some

embarrassment. :

Be that as it may, this so-called plan was never imple-

mented beyond tthe fact that Sanders was promptly reduced

to a rank-and-file hourly employee upon the employment

of Tahyi. Paxton continued to be the bottling machine

operator without change despite the employment of Tahyi.

No one except the Johnsons and, perhaps, Tahyi ever heard

of this alleged plan. Its implementation was nil. As a

matter of, fact neither Johnson could recall an instance

where Paxton’s work during this whole period had ever

been criticized to Paxton himself, Thus it seems that Pax-

ton continued to operate-even the newly installed machine

without criticism from the Johnson at least until the evening

- of July 22. |

The Johnsons maintained that Respondent had ‘‘hired’’

Patric McDaniel, the returned serviceman, who ultimately

replaced Paxton as bottling machine operator, before it -

discharged Paxton. This contention is contrary to the

testimony of McDaniel. McDaniel’s testimony proved that

sometime early in July he had, by.chance, run into Brad in

the vicinity of their respective homes and that Brad had

suggested that Respondent might have employment for him

if he were interested. At that time McDaniel was not inter-

ested because he had just been released from service and

preferred to ‘‘free lance.’’ McDaniel, in fact, continued to

vacation ‘until July 26 when he went to an employment

agency where he found only two possible jobs listed, one of

which was the job with Respondent. On that same day

"McDaniel went to the Respondent’s plant, asked Brad for

the job, and got it. But Paxton had been discharged at

least 3 days before. Thus Respondent’s alleged long

<a

(23a

‘search for a filling machine operator begun in November —

- 1967 ended. This long ‘*search”’ has all the appearance

'_ of being the figment of someone’s imagination.

According to Brad, ‘‘one of the main things [causing the

decision to discharge Paxton] was that a sales meeting is

held at the plant every Monday morning. There were so

many complaints at that time [July 22]’’ that the John- |

sons‘determined to discharge Paxton. Brad testified that

the final decision to discharge. Paxton was made between

7:30 and 8 a.m. July 22. On this Richard disagreed testi- ©

ae fying that the decision was made, after a day long ‘discus-

sion, during the evening of July 22. The importance of the .

July 22 sales meeting in the making of the decision is

greatly diminished by Brad’s other testimony that he had

begun looking for a replacement as early as November

1967, by his claim that he had hired McDaniel on July 19,

- and by Glaub’s testimony. The promotion of Sanders dur-

ing the evening of July 22 tends to confirm Richard’s testi-

mony that the decision on Paxton also occurred during that.

same personnel meeting. Of course, if Richard is correct

in this as it seems he was, the decision to discharge Paxton

occurred after the Johnsons’ conversation with Agin.

In any event it is clear that the decision to discharge

Paxton was a precipitous, hurried, ‘and on-the-spur-of-the-

moment decision for the reason that it was made without

there being a replacement in sight. There seems no ques-

tion but that the decision was made on the spur of the ~

" Moment and as a result of some momentous event such as

‘ the discovery that Paxton was the instigator of the Union.

Richard also maintained that Zanesville suffered a ‘very

severe storm on July 22 which caused the loss of three trees

on the theory, apparently, that an outside conversation i

such as Agin described. would be impossible in such weather.

Strangely only Richard mentioned this storm. Richard

further testified that on July 22 he made two trips to

Newark, Ohio, but even the times he gave in regard to

these trips would have. gotten him back to Zanesville in time

' 4a

to hold the Agin conversation at the time Agin said it

happened.

” In sum, the above has caused this Trial Examiner to view

the testimony of both Johnsons with skepticism. Accord-

ingly, as Agin gave all appearances of a witness telling the

' truth, I credit his testimony that the Johnsons asked him

about 4-4:30 p.m.'on July 22 what he knew about the Union

and were told that Paxton had obtained the union author-

ization cards and gotten all the employees to sign them. I,

therefore, discredit the Johnsons’ flat denials thereof.

In the light of the Johnsons’ subsequent treatment of

the Union’s request for recognition, the Agin conversa-

tion was just such an event as would have triggered the

sudden discharge of Paxton.

Richard and Brad attempted to discredit Okey’s admis-

sion that Paxton was discharged by Respondent because

he was the. ‘‘instigator’’ of the Union'and of the strike

by testimony, no doubt true, that Okey was an admitted

_ aleoholic and that on August 14 was ‘‘completely in-

ebriated.’’ If this last were true, then Richard’s action

in permitting Okey to drive his Cadillac in that known

condition away from the plant, at least, verged upon action-

_able*negligence. However the fact remains that even in-

_ebriates can and do tell the truth. On this occasion this

Trial Examiner is convinced that on — 14 Okey was in

fact telling the truth.

Under all the facts here this Trial Duunieer is con-

vinced, and -therefore finds, that Respondent discharged |

Lloyd Paxton because of his known membership in and

activities on behalf of the Union in violation of. Section

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

2. Interference, restraint, and coercion

‘There 3 is no question but the action of Okey Johnson on

’ August 14 in conditioning the reinstatement of the em-

ployees still engaging in an unfair labor practice strike

2a

against Respondent caused by Respondent’s unfair labor.

practices and in discriniinating against Lloyd Paxton

_ because of his union activities upon the agreement of the \

union representative to return to his base in Marion, Ohio,

and ‘‘forgetting the whole thing’ amounted to interference

with, and restraint and coercion of Respondent’s employees

in violation of Section 8(a)(1) of the Act. The Trial Ex-

aminer’so finds. — fears nce

Nor can there be any doubt but that Respondent’s letter

to the strikers dated August 2, 1968, threatening, as it did,

the strikers with loss of employment unless they abandoned -

their unfair labor practicé strike by the following Monday

also constituted a violation of Section 8(a) (1) of the Act.

The Trial Examiner so finds. |

It was stipulated that on July 26, 1968, the day after the

strike began, Respondent paid each of its employees then

working in the plant after having crossed the picket line the

sum of $10. oe oer

Respondent maintained that at some indefinite date in the

past Brade had promised the employees a $10 bonus when- _

ever production reached 4,000 cases cases per day and that _

on July 24 production did in fact reach 4,000 cases for

. the first and only time in Respondent’s history. As Re-

spondent was working shorthanded on J uly 24, following

the discharge of Paxton, it is somewhat hard to believe -

that this absolutely unique production record was set that

day. It is also hard to believe that such‘a record was not

memorialized in Respondent’s business records and. that

such records would not be produced at the hearing to cor-

roborate the gral testimony of the Johnsons. No corrobora-

tion of this type was offered. I am inclined to believe that

the $10 paid was‘paid by Respondent as a bonus to those

employees who were working behind the picket line. If

in fact a record was established by the production of July —

24, then by failing to pay that same bonus to employees,

then on the ie but who had participated in the

>

setting of that record, Respondent dnhiniy engaged in

economic. reprisals against them because of their engaging

in the strike. In either event Respondent's action amounted

to interference, restraint, and coercion in violation of Sec-

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

J In order, therefore, to restore the status quo this Trial

- Examiner is.going to order Respondent to pay the em-

ployees on the picket line on July 25 who had worked in the

plant when the alleged production record was set on July

24 the sum of $10 each.

3. The refusal to bargain

a. Appropriate unit and majority

The parties stipulated that the unit appropriate for the

purposes of collective bargaining at retarsas ’s plant

— consisted of -the following:

All production and maintenance employees employed

- at Respondent’s Zanesville, Ohio bottling plant, ex-

cluding all office clerical employees, professional em- —

_ ployees, guards and, supervisors as defined in the Act. —

The parties agreed ine that there were 12 production and

maintenance employees employed in the renee ap-

propriate unit.”

- On July 19, 10 of Respondent’s ere in the appro-.

priate unit, at that time includirtg Richard Sanders, volun-

tarily signed authorization cards reading in full as follows: -

I hereby authorize the Iw TERNATIONAL Mo.pers and

Auuiep Workers Union, A.F.L. - C.LQ, to represent

me’ and, in my behalf, to negotiate all agreements or

contracts in regard to wages, hours and working condi-.

tions. ,

™The parties did disagree as to the inclusion of an employee

named Fox in that appropriate unit. Under the facts of this aase

it is immaterial whether or not Fox was or was not included therein.

27a

Consequently at the time the Union made its request of

‘Respondent for recognition on J uly 24, the Union repre-

sented a large majority of all Respondent’s employees in .

the appropriate unit. The inclusion of employee Fox and

the subsequent exclusion of Richard Sanders do not affect

the Union’s majority. status at any time. '

- Consequently on J uly 19, 1968, and at all times there. _

after, the Union was the duly authorized bargaining agent

of a majority of the Respondent’s employees in the stipu-

_ lated appropriate unit and entitled to recognition and the

right to bargain with Respondent on behalf of the employees

in that unit. a |

b: The refusal

Respondent’s refusal to bargain with the Union is crystal

clear. Respondent never intended to bargain and suc- .

ceeded in not doing so through its own deliberate actions. |

. When first asked to grant recognition, Respondent through

Richard stalled on the ground that Respondent’s attorney -

was Out of town. Once having used this excuse, it became

ineumbent upon Respondent to make up its mind and notify

the Union of its decision. This Respondent did not do:

Respondent stalled again when Okey told Kisner that Re-

spondent was having a meeting the following Monday when

it would consult with its attorney and make up its mind.

Again it became incumbent upon Respondent to notify the

Union of its decision, if any. Again Respondent refused

to do so. Then Kisner telephoned Richard at home in the

evening to find out what decision, if any, Respondent had

reached at that alleged Monday meeting. This time Rich-

ard arrogantly refused to discuss Respondent’s business at

_ his home. Finally Respondent’s Chairman of the Board on

August 14 offered to reinstate the ‘Temaining strikers con- °

ditioned upon the Union’s getting out of town and “‘for-~

getting the whole thing.’”’ These are not -the actions ofa

party willing to engage in collective bargaining with the

exclusive representative of a majority of its employees in ‘

I EI LOE IL AOA. FCG LES EE IMLS Teter

eoremerege yn

28a

an appropriate unit. These actions, individually or col-

lectively, amount to a refusal to bargain.

As for the instance of August 14 Respondent is estopped |

to make its usual excuse for the actions of Okey because

the facts show that, both Richard and Brad knew that its

‘ Chairman of the Board was engaged with the Union ob-

viously .on mat concerning collective bargaining and

yet Richard, at least, ‘‘especially’’ stayed out of thé con-

ference, even though invited, thereby deliberately mislead-

ing the Union into believing that it was dealing with a a

sponsible official of the Respondent. This is at least’ a

reprehensible as Richard’s permitting: a ‘‘completely in-.

ebriated man,’’ as Richard described him, to drive his auto-

- mobile from the plant ontc rie ae highways as Richa

allowed him to do. \ so

Respondent claims ‘‘a \reasonable doubt’’ as to the

Union’s majority: status. is contention, like the others,

” is mere verbiage“under the facts’ here because Respondent

was offered a full and fair opportunity to determine

through the cards that status and deliberateiy chose not to

avail itself thereof. Self-imposed deception or delusion does

not amount to ‘‘a reasonable doubt.”’ Respondent had no

one but itself to blame for any doubt. Respondent attempts

_ to profit by its own wrongdoing. Respondent had nothing —

concrete. or tangible upon which to base a ‘‘reasonable

doubt’ other than its own deliberate refusal to accept a

~reasonable means for satisfying itself as to the Unionh’s

majority. status. »

Accordingly this Trial Examiner must, and hii does,

find that on July 24, 1968, and at all.times thereafter, Re- |

spondent refused to bargain collectively with the Union as

the exclusive representative of Respondent’ ~ employees i in

the above-found appropriate unit in violation of Section

8{a)(1) and (5) of the Act.

3 29a

IV. Tue Ervecr or rar Unrar Lasor

Practices Upon ComMERcE

The activities of Respondent set forth in section III,

above, occurring in connection with Respondent’s opera-

‘

among the several States and tend to lead labor disputes

commerce.

V.

ing commerce and the free flow of

Tue Remepy

Having found that Respondent has engaged in certain

unfair labor practices, I shall recominiend that Respondent

cease and desist therefrom and that it take eh 97 affirma-

0

tive action. designed to effectuate the policies

the Act.

Having found that Respondent discriminated in regard

to the hire and tenure -of employment of Lloyd Paxton by

discharging -him on J uly 23, 1968, because of his known

membership and activit

iés on behalf of the Union, I shall

recommend that Respondent. offer him immediate and full

reinstatement to his former or substantially equivalent

position without prejudice to his seniority or other rights”

and privileges and make him whole for any loss of pay he.

may have suffered by reason of said discrimination against

a sum of money equal to that which ~

2 earnings during such period, in accordance with the formula

set forth in F. W, Woolworth Company, 90 NLRB 289, with

interést thereon at 6 percent per annum. | /

Having found that $10 paid by Respondent on July 26,

allegedly as a bonus for record plant production on July

30a aoe

theie en striking for engaging in said strike, I will order

that Respondent pay each of: the employees engaging in

Having found that Respondent refused to recognize and

bargain with the, Union in vieilation of Section 8(a)(5) and

(1): of the Act, I will récommend that, upon request, Re-

. =, Spondent recognize and bargain collectively with the Union

hours, and other terms and conditions of employment and,

if an agreement is reached, embody such understanding i in

a signed agreement. . The appropriate unit is:

All: production and maintenance employees at Respond-

. ent’s Zanesville; Ohio bottling plant, excluding all office

clerical émployees, professional employees, guards and

supervisors as defined in the Act.

‘Because of the character and scope of the unfair labor

practices found to have been engaged in by Respondent, I

be recornamend that Respondent cease and desist from in

y manner interfering with, restraining, or coercing its

‘employees in the exercise of their rights guaranteed i in Sec-

tion’? of the Act.

_. “Upon the foregoing findings and enenticibenin of law and

*. upon the entire —- I hereby make the tla

Conctvsioxs or Law

1. International Molders & Allied Workers Union, AFL-

CIO, is a labor organization within the meaning of Section

2(5) of the Act.

co * By. discriminating in regard to the hire elt ‘abtite of

'. employment of Lloyd Paxton by discharging him on July

23, 1968, because of ‘his membership in and activities on

.. behalf of the Union, oo has engaged in ‘and is

- the strike who had worked on July 24, the day of the Saas =

record production, the sum of $10. ;

as the ‘exclusive representative of all its employees in the

appropriate unit below with respect to rates of pay, wages,

de

3la

engaging in unfair labor practices within the meaning of

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

3. By refusing on July 25, 1968, and at all times there-

after to bargain collectively with the Union as the exelu-

.Sive representative of all Respondent’s employees in the.

appropriate unit below, Respondent has engaged in and .

‘is engaging in unfair labor practices within the meaning of

Section 8(a)(5) and (1) of the Act. The appropriate is:

All production and maintenance employees employed

at Respondent’s Zanesville, Ohio bottling plant, exclud-

ing all office clerical employees, professional employees,

guards and supervisors as defined in the Act.

4. By interrogating its employees regarding their union

membership and activity, by paying its empldyees for work-

ing behind the picket line the sum of $10 or refusing to pay

strikers the same $10 as an economic reprisal for engaging

in a strike, Respondent has engaged in interference, re-

‘straint, and:coercion in violation of Section 8(a) (1) of the

Act. rye 2 | , ;

5. The aforesaid unfair labor practices affect commerce -

within the meaning of Section 2(6) and (7) of the Act.“

RECOMMENDED ORDER

| Upon the basis of the foregoing findings of fact and con-

clusions of law and upon the entire record in this case,

I recommend that Clay-City Beverages, Inc., Zanesville,

Ohio, its officers, agents, successors, and assigns, shall:

i. Cease and desist from: ue

(a) Discharging or otherwise discriminating in regard

to the hire or tenure of employment or of any term or con-

dition of employment of its employees because of their

membership in or activities on behalf of International

Molders & Allied Workers Union, AFL-CIO, or any other

labor organization of their choice. gh su

32a

(by) Refusing to recognize and ania with said Union

as the exclusive representative of Respondent’s employees

in the above-mentioned appropriate unit. 7

(c) In any manner interfering with, restraining, or coerc-

ing its employees in the exercise of their rights aes

the employees by the Act.

2. Take the following ‘sfiremtive. action designed to ef-

' fectuate the policies of the Act:

(a) Offer Lloyd Paxton inlaid i eneciditional re-

instatement to his former or substantially equivalent posi-

tion, without prejudice to his seniority or other rights and

privileges, and make.him whole for any loss of earnings

he may have suffered by reason of the discrimination

against him, in the manner set forth in the section hereof

entitled ‘‘The Remedy,” with interest thereon at 6 —

per annum. :

(b) Pay the sum of $10 to each of the. employees who

went out on strike on July 25, 1968 and had worked

in the plant on July 24 when — the’ pla t prodnetion

record was set. .

(c) Upon request, recognize and bargain in -good faith

with International Molders & Allied Workers Union, AF'L-

‘CIO, as the exclusive bargaining representative of all Re-

spondent’s employees i in the above-found appropriate unit

and, if agreement is reached, embody said ba shennan in a:

written signed agreement.

(d) Preserve and, upon request, make available to ‘the Z

- Board or its agents, for examination and.copying, all pay-

roll records, social security payment records, timeeards, per-

sonnel récords and reports, and all other records necessary

to analyze the amount of a due under the terms of

this Recommended Order.

&

A

ee =

PONE Cote Te

rs 33a

Go. sein |

(e) Post at its plant in Zanesville, Ohio, copies of the

attached notice marked ‘‘Appendix.’’* Copies of said |

notice, on. forms provided by the Regional Director for

Region 8, after being duly signed by. Respondent’s repre-

sentative, 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 the employees are customarily posted.

“Reasonable steps shall be taken by Respondent. to insure

that said notices are not altered, defaced, or covered sd

‘any other material.

' (f) Notify said Regional eee in writing, within 20

days from the receipt of this Decision, what. steps have -

been taken to comply herewith.°

Ir Is FurtHER RECOMMENDED that, unless Respondent

notifies said Regional Director within 20 days from the re- °

ceipt hereof. it will take the action here recommended, the

Board issue an order directing Respondent to take the

action here recommended. .

Dated at Washington, D. c

8 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 Appeals Enforcing an Order’’

“shall be substituted for the words ‘‘a Decision and Order. a

®In the event that this Recommended Order is adopted by the

Board, this provision shall be modified to read: ‘‘Notify the Re-

gional Director for Region 8, in writing, within 10 days from the

date of this Order, what steps eee has taken to comply

herewith. sin

34a

APPENDIX _

Notice To ALL EMPLOYEES

_ Pursuant to the Recommended Order of a Trial Examiner

‘ of the National Labor Relations Board and in order to

effectuate the policies of the National Labor Relations Act,

as amended, we hereby notify our employees that:

We Wu. Nor discourage membership in or ashivition

on behalf of International Molders & Allied Workers

Union, AFL-CIO, or any other labor organization, by

discharging or discriminating in regard to the hire,

tenure, or other terms or cénditions of ae of

any of our employees.

We Wuz offer Lloyd Paxton his Sunnie or substan-.

tially equivalent position, without prejudice to his

seniority or other rights. and privileges, and we will

pay him for any loss of. pay he may have suffered: be-

cause of our discrimination against him together with

interest thereon at 6 percent per annum.

We Wuz pay to each of the employees on strike on .

July 26, 1968, who had worked in i plant on July 24,

- 1968, the sum of $10. .

We Wut Nor in any 1 manner interfere with, restrain,

or coerce our employees in the exercise of their right

to self-organization, to form, join, or assist Interna- —

tional Molders & Allied Workers Union, AFL-CIO; or

any other labor organization, to bargain collectively

through a representative or their own choosing, to en-

gage in concerted activities for the purposes of collec-

tive bargaining or other mutual aid or protection, or —

to refrain from any such activities, except to the ex-

' tent that such right may be affected by an agreement

‘ requiring membership in a labor organization as a —

condition of employment, as authorized by Section 8

(a) (2) of the Act, as amended. | |

35a

All our employees dre free to become or remain, or to re-

frain from becoming or remaining, members of Interna-

tional Molders & Allied Workers Union, AFL-CIO, or any

other labor organization, except to the extent that this

right may be affected by an agreement executing and con-

forming with Section 8(a) (3) of the Act.

Cuay Crry Brveracsgs, Inc.

(Employer)

(Representative). (Title)

_ This notice must remain posted for’ 60 consecutive days

- from the date of ‘posting and must not be altered, defaced,

or covered by: any other material.

If employees have any question concerning this notice or |

compliance with its provisions, they may communicate di- ©

rectly with the Board’s Regional Office, 1695 Federal Office

Building, 1240 East Ninth Street, Cleveland, Ohio 44199,

Telephone 216-522-3715. -

wv

36a

APPENDIX B

FOR RELEAS MORNING PAPERS

| ee July 2, 1969

177 NLRB No. 24 | |

autt | D-3010

Ft. Lauderdale, Fla.

| UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 12-CA-4305 (1-2)

Nat Hannon Aanoctares, Inc.

and

INTERNATIONAL BroTHERHOOD oF Eecrrican Wonxens,

LocaL No, 728, AFL-CIO

Decston and Order

On March 12, 1969, Trial Exami Rythard D. Taplitz

if _issued his Decision in the above-entitl case, finding that

4° Respondent had engaged in and was engaging in certain

unfair labor practices within the meanihg of the National

Labor Relations Act, as amended, and recommending that-

‘it cease and’ desist therefrom and take certain affirmative

action, as set forth in the attached Trial Examiner’s Deci-

sion. Thereafter, the Respondent filed exceptions to the

Trial Examiner’s Decision and a supporting brief.

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 powers in connection with

_ this case to a three-member panel.

> The Board has reviewed the rulings of the Trial E —

. iner made at the hearing and finds that no prejudicial error

‘was committed. The rulings hereby affirmed. The Ef 7

Board has considered the Trial Examiner’s Decision, the

exceptions and brief, and the entire record in this seta and

tt”

v

a)

’ ; “ .

RICE NES PA CORE AN THEE ts BRET PEG T TONE IE I I OR BRS wince ele FO Myton yee ay

. . = - . —~ > 5

37a

hereby adopts the findings, conclusions, and recommenda-

tions of the Trial Examiner." \

OrpER

é : / “ 7,

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

tions Act, as amended, the National Labor Relations Board

adopts as its Order the Recommended Order of the Trial

‘Examiner, and hereby orders that the Respondent, Nat

' Harrison Associates, Inc., Ft. Lauderdale, Florida, its offi-

cers, agents, successors, and assigns, shall take the action

set forth in the Trial Examiner’s Recommended Order.

Dated Washington, D. C.

_ John H.-Fanning, | Member

Gerald A. Brown, Member

Howard Jenkins, Jr.,-

| Member

(SEAL) - ; _ Nationan. Lasor Rexations

Boarp

* We agree with the Trial Examiner that the Respondent engaged

in extensive violations of the Act including wholesale unlawful in-

' terrogation, threats to discharge employees because of their union

activities, promises of benefits to employees to refrain from union

activity, and the discharge of two employees because they joined

the Union. Moreover, as concluded by the Trial Examiner, Re-

spondent may not destroy the very conditions needed for a fair ©

' election, as we find occurred herein, and at the same time success-

fully maintain that an election is the sole means for determining

the desires of the employees. Accordingly, as we conclude that

the Respondent’s massive unfair labor practices have made the

holding of a fair election unlikely, we shall provide, as did the

Trial Examiner, for an 8(a) (5) bargaining order. See N.L.R.B.

Vv. Gissel Packing Co., Inc., — US. — (decided June 16, 1969),

71 LRRM 2481, read x6

: TXD-105-69

Dp OM. — Fla.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF TRIAL EXAMINERS

' ' WASHINGTON, D. C.

Case 12-0-A-4305 (1-2) -

Nat Harrison Associutes, Inc. Rc

and

INTERNATIONAL BROTHERHOOD OF Exzornicat ORKERS,

Loca No. 728, oe

Jack T. Brellis, Esq., of

Miami, F'a., for the General

Counsel. ,

‘Donald R. Holley, Esq.,

Muller, Schenerlein & Bare,

of Miami, Fla., for the Respondent.

Willie Lee Henderson, of |

Ft. Lauderdale, Fla., for

the Charging Party.

‘Trial — sn Decision

STaTEMENT OF THE CasE

tiie D. Taruitz, Trial Examiner: This case was tried

in Miami, Florida, on December 3, 4, 5, 6, and 9.1 The

issues litigated were framed by a complaint dated Novem-

ber 1, as amended at the hearing, alleging violations of Sec-

tion 8(a)(1), (3), and (5) of the National Labor Relations

Act, as amended, and an answer, as amended at the hearing,

filed by Nat Harrison Associates, Inc., herein called Re-

‘spondent, which denies that Respondent violated the Act.

1 All dates are in 1968 elie otherwise specified.

39a on

The complaint was based on a charge in Case 12-CA-4305

dated August 9, a charge in Case 12-CA-4305-2 dated Au-

gust 26, and an amended charge in Case 12-CA-4305 (1-2)

dated October 23, all filed by the International Brotherhood

of Electrical Workers, Local No. 728, AFL-CIO, herein

called the Union. All parties appeared at the hearing and

were given full opportunity té participate, to adduce rele-

vant evidence, to examine and cross-examine witnesses,’ to

argue orally, and to file briefs, A brief which has. been

carefully considered was filed on behalf of the Respondent. =

IssuEs.

1. Whether Respondent violated Section 8(a)(1). of the

Act by. interrogating employees concerning their activities A

‘on behalf of the Union and by interfering with their right

to engage in such activity by threatening them with re-

prisals if they were for the Union and promising them.

benefits if they were against the Union. .

_ 2. Whether Respondent violated Section 8(a) (3) and (1)

of the -Act by discharging James F. Aldridge and Willie L.

J eter in order to discourage membership in the Union.

3. Whether Respondent violated Section 8(a)(5) and (1) |

of the Act by refusing to recognize and bargain with he

Union.. | . *

Upon the entire record — from my observation of the

demeanor of the witnesses while they were testifying under . .

oath, I make the following: “aia

Finpines or Fact

I. Tue Business or Responpent

Respondent, a Florida corporation. with its principal

place of business at 5600 Northeast Fourth Avenue, Miami, -

Florida, is engaged in the construction business. Its pri-

mary work is electrical construction, such as the installa-

tion of electrical high lines, pipe cable, and satellite towers, .

40a

in various States of the United States and in foreign eoun-

tries. This work is necessarily done at various construc-

tion sites in the field. Minor maintenance and repair of Re-

spondent’s machinery and equipnggnt is done by mechanics

. in the€ld but for major bess se and repair and for

- the dispatching of equipment to the various jobs Réspond-

ent maintains three maintenance and equipment yards.

One is at Florence, New Jersey, one in Baton Rouge, Louisi-

ana, and a third at 3615 Southwest 47th Avenue, Ft. Lauder-

. dale, Florida. The Ft. Lauderdale yard is the situs of the

alleged unfair labor practices in this proceeding.

~ ance of the complaint, Respondent purchased goods and

materials valued in excess of $50,000 directly from suppliers

located outside the State of Florida.. ;

_ The complaint alleges, the answer admits, and 1. find

that Respondent is an employer engaged in commerce with-

in the meaning of Section 2(6) and (7) of the Act. . rs,

er ‘IL. ‘Tae Lasos Oncanzation Iw VOLVED.

_ The complaint alleges, the answer admits, and I find that

the Union is a labor organization within the meaning of

Section 2(5).of the Act.

II. Tue Autecep Unrarm Lasor Practices

A. The Alleged Violation of Section 8(a)(1) of the Act

| Facts 3

i. The organizational activity and

Respondent’s knowledge thereof

o& In about May Elbert A. Pirkle, a mechanic-welder in

Respondent’s employ, began discussing the possibility of

organizing Respondent’s. employees with the employee of

an other employer in Respondent’s industry. By July 18

_ Elbert A. Pirkle had received from the other employee and

from the Union blank application cards for membership in

During the 12 months immediately preceding the issu-

| 4la : Ney

the Union. On that date he passed oyt about 20 cards to,

employees of Respondent at the Ft. Lauderdale ‘yard. =

Groups of cards were given to some of the employees and

they in turn passed them out to otlier employees. On July

31 the Union held a meeting which was attended by many

of Respondent’s employees. At this meeting W. L. Hen-

derson, the Union business manager, told the employees that

they would be processed through the Local and that they

would be represented by the Local Union. At that time ~

_ Pirkle turned in a number of cards and: other employees

turned in the cards that they had signed.

“Woodrow E. Maddy is Respondent’s equipment superin-

terident and an admitted supervisor within the meaning of

the Act, Though John Flora, Respondent's sho foreman

and yard supervisor for the Ft. Lauderdale y is ordi-

narily in charge of.that yard, Maddy who is over Flora in

Respondent’s supervisory hierarchy was given Flora’s

duties from July 28° through August 5 while Flora was

‘absent from the yard. Maddy testified that on August 1

he saw an unidentified stranger in the yard and that he -

spoke about it to Ora (Bud) M. Paul, a@ruckdriver and

equipment mover in Respondent’s employ. At that time

Ora Paul told Maddy that there was union activity going on

and that some of -the employees, including Ora Payl’s

brother, Maxwell (Boots) L. Paul, were passing out cards.

. 2. The individual conversations

After learning about the union activity at the Ft. Lauder-

dale yard, Maddy engaged in whdélesale terrogation of the.

employees concerning their union activities. Maddy’s testi-

mony leaves the dates of these interrogations somewhat in“

doubt but it is clear that it all occurred between July 28

and. August 5 as that was the only period of .time that

Maddy was at the Ft. Lauderdale yard. Though Maddy’s

recollection of the exact date kept changivig, his best. recol-

- lection was that he spoke to employee Pirkle and the other

employees'on August 1 which was the date that he allegedly

‘a

»

™~

-

Ss

noticed the stranger P vard Maddy admitted that he

spoke to 15 employees.’ Re ent has approximately 32

employees at the:yard.. Maddy test?

about the Union. Maddy spoke to each one individually at

various places in the Ft. Lauderdale yard. :

~ William €rane, Respondent ’s export manager and.alsoan

admitted supervisor under the Act, testified’ that he also

engaged i in interrogation. He admitted that on August 2,

a his office at the yard in the presence of Maxwell Paul

and Maddy, he asked Willie L. Jeter whether Jeter had

signed the union card. Jeter answered that he had.’

Crane also admitted that at the same meeting he asked .

Maxwell Paul whether Paul had signed for the Union.‘ °

- A-number of employees testified that Respondent did not

stop with interrogating them > concerning | whether they

signed for the Union or what they heard about the Union.

KE. Pirkle testified that, in the same conversation in which .

Maddy asked him whether he had signed a card and what

he had heard about the Union, Maddy bragged about firing -

employees at the Baton Rouge, Louisiana, yard because the

employees. were trying to get.the Union in and that Maddy:

said he could understand it if it was a Teamsters or Operat-

ing Engineers who were trying to organize the Ft. Lauder-

dale yard but he could not: understand the drive by Local — | :

* 728. Employee J. MoGlamory testified that when Maddy

asked him whether he signed a card Maddy also asked if he

a E. Pirkle, E. Paton, F 3 a aE J. Mandeville, G. - Ash-

craft,-J. Callender, R. Cuthbertson; L. Ellis, A. Fusco, D. Dasher,

D. Keith, R. Marchman, L: Brown, R. Sorrells, and J. Aldridge.

8 Jeter was discharged. on — 7, allegedly i in en of Sec-

tion 8(a) (3) of the Act. .

infra.

‘stnth aeiniie oie}. ate

that he asked each

_ of these employees whether they had signed-a union card.

He also admitted that he asked most of. them what~they

knew about the Union or whether they. had heard anything

4 Maxwell Paul’s status ds an ae or a is discussed

aah his LOIN bad DESL at OK aba tail pias LENG Ae Rito Bi Mas °

tie at ald 2

SE awn ae

+

Sasa NLR ler na ae bg tas PRINTER PAELLA LL IRI mea ee Tee ae fi

+

43a

_went to the union meeting. Employee. J. Mandeville testi- —

fied that, when Maddy asked him whether he signed a-card

. or heard anything about the Union, Maddy ‘also told him

that the ones who stayed out of the Union would be better

off and get better benefits and Specifically that he (Mande- .

ville) would be better off if. he didn’t sign. Employee J.

Callender testified that, in addition to asking him whether

he.had signed a card and what he knew: about the Union,

' Maddy told him not ‘to sign a union card. .Employee R. .

Cuthbertson testified that Maddy not only asked him.

whether he signed a card. but told him that, if employees |

did not sign’ cards, they would get uniforms and a pay’

: .Yaise and that he,.Cuthbertson, would be all right as long

. as he did not ‘sign a card. - Employee L. Ellis testified that,

- in addition te Maddy’s asking him whether he signed-a card,

‘Maddy told him that he ‘would not be sorry if he did not

sign. Employee A. Fusco, Jr., testified that Maddy called

him into his office and asked him what he knew about the

union meeting the other night. When Fusco equivocated © .

Maddy told him not to lie because he would find the answer

anyway. Maddy asked him. whether he had been -at the

meeting and Fusco answered that he was.’ Maddy asked

him if he had signed a card and he answered.that he had. ,_-

Maddy then said ‘Well, now you know what’s liable to

happen to you don’t you?’”’. Employee J. Baughman testi- |

' fied that; in addition to being asked whether he had signed

a card or knew anything about the Union, Maddy told him

not to ‘let anyone talk. to him into signing a ecard. Em-

_ ployee’D. Dasher testified that Maddy asked him if he’ knew

_ anything about the Union and that he answered that he had _

just heard rumors. Maddy asked if Dasher had signed and

Dasher answered that he had-not. Maddy then told him not

to sign because it could only get him in trouble and that if

‘anyone did sign that person would be terminated as soon as

he could find cat whet has. Employee D. Keith testified

. that Maddy asked him whéther he had signed.. He an- -

swered that he had not since he was on that job and Maddy |

; * .

- .

Sree ITSO 9 8008 Rlaeeiah pital sebeiaa acetone thal siete dae in i heealah hate aie ihc Bi ail Adanag *

‘told: hina. to keep it that way. " Baiployse L. Brown testi-

fied that, in addition to being asked whether he ‘signed a

» card and what he knew aboutsthe Union, Maddy told him .

‘not to sign because there would probably be a .skelton

~ erew around and they would be in the money. Brown also

- testified that about the same time he asked Sufpervisor

- John Flora for a raise and Flora told. him that there would

‘not be any increase as long as ‘people. kept running around

. signing papers.’ Employee Clarence Paul testified that his

_ eonversation with Maddy: occurred in the yard with no one 4

- else ‘present. Maddy asked. if Paul had signed a card and %

said that he would get Paul more money if Paul did not

sign. Clarence Paul answered that he had signed and that

His brother ‘had given him the card.° Maddy told Clarence

Paul to get. the card back, and C. Paul answered shat: he -.

_ would if he could but he believed it had been sent i Maddy

then told him that he could fire any instigators who passed

out the cards and that he could’fire any man who joined —

the Union. Later in the same day there was a second con- _

versation in which Maddy’ told C. Paul that he (Maddy) |

could fire anybody in the yard even if he had to use a safety

reason and that if the Union came into the yard Respondent — 4

would close the gates. Maddy also said that he would fire - ;

the instigators if he could catch them and that he was going

to fire any man who signed a union card. James F.-Ald- |

ridge, who is also alleged as.a discriminatee under Section

8(a) (3) of the Act, testified that Maddy asked him whether °.

ouldn’t be any raises for some time and that Brown answered ie

that he wished he hadn’t signed for the Union. -However, the

complaint does not allege-that Flora engaged in, any activity in. rela

violation of Section 8(a) (1) of the Act and, therefore, — od

will be made with regard to this incident. one ae

® Clarence Paul credibly testified that in fact Pirkle had given —

him thé card but that he (G. Paul) told Maddy that it was his:

brother because he was trying to protect Pirkle and he knew that

Ora Paul had already told — that Maxwell ‘Paul was involved

with the Union. -

3 (wo Flora admitted tellirig Brown that the way things looked there

Ww

ao 4,

45a .

he signed a card and -he answered that he did. © Maddy re-

plied that he had been associated with he Union and “

_ Can fix any of those smart boys. I know all about the

union, they can’t touch the State of Florida.” Soa ee

Maddy specifically responded to the testimony of each of

the employees set forth about jand categorically denied

that he had made any of the statements attributed to him

except to the extent that he ‘asked employees whether they

‘had’ signed for the Union and’what they knew about the |

Union.’ I am unable to credit Maddy in regard to these

denials. After observing the demeanor of the employees as

they testified under oath and considering the fact that the

_ tenor of the, testimony of the employees is mutually COrro-

borative, I credit that testimony. Maddy did not impress

me with his candor ‘and where a conflict in testimony ap-

pears between ‘hith and-the employees I credit the em-

ployees® —s : : ree ,

8. The lunchroom meeting with Maddy

‘tien with Qra Paul in the lunchroom at the Ft. Lauderdale *

_yard/when Maxwell Paul entered the room. Maxwell Paul

“Maxwell ivory. that he did. Maddy asked if he

could get his ecard back and he answered that it had already .

_-been turned in and he would not get it back. Maddy then

- said, ‘Well, I will personally have your pink slip of termi-

nation in: the morning.’? Maddy asked Maxwell Paul if

.™ Maddy denied having any conversation with J. Baughman.:

_* All ‘the employees wlio could recall the date of the conversation .

with Maddy with accuracy placed the conversation ag oceurring

between August 1 and August. 5, with the bulk of the conversa-

‘tions op August 1. I-so find. on

“©

AE, DELO VS PERE

| 46a

.,. anyone else signed a card and Maxwell Paul answered

_ thajghe didn’t know but as far as he did know everybody

_ had signed. Maddy asked if Jeter had signed and Maxwell’

Paul ‘answered that he didn’t know. .Maddy then said

“Well, if he has, I have his pink slip, too, and anybody—

anyone else who has signed.a card.’? Maddy asked who the

instigator .was and Maxwell Paul answered that he could Rie

not tell him. As \Maxwell Paul was leaving the room he itive

saw,semployee Jim Bowen come into ‘the lunchroom and .

_ heard Maddy ask him if the*had signed a card. Bowen —

- answered that he had.- He algo heard Maddy speak to -—

’ Dasher, the night watchman, and heard Maddy ask Dasher

- whether he had signed a card. Dasher answered that he

_. didn’t know what Maddy was talking about and Maddy re-

. . plied that he had better not sign. :

Maddy recalled the conversation in the lunchroom but. he |

denied the substance of Maxwell Paul’s testimony. Maddy

testified as follows: Maddy was. talking to. Bud Paul when

j Maxwell Paul entered the lunchroom. Maddy asked Max-

- well Paul what he knew about the Union and then Bud and

Maxwell Paul got.into a heated discussion about the merits.

of unionization. Maddy said that, if something d didn’t hap-

'- pen and they didn’t start getting work done, he would get

a whole handful of pink slips. Semetime during the con-

versation. Clarence Paul walked into the room. Maddy

specifically denied that he asked Maxwell Paul whether he

had signed a union card and stated instead that Bud Paul’

had asked that question. In a like vein Maddy denied that

he questioned: Maxwell Paul about who the instigator was, __-

\. Ora Paul’s version of the conversation is somewhere

“between. that of Maxwell Paul and Maddy. Ora Paul

testified as follows: It was Maddy who asked Maxwell Paul

if*he signed a tmion card and Maddy asked Maxwell Paul

who was creating all-the-disturbance. Maddy. said that

_ - the men were slowing down and creating a disturbance and

were getting dissatisfied with their Employer and he would

like to find out who those men were who were causing the

1 Re SRR Wie an sats.

ry

—————

- A 47a : f

disturbance because he would give them their pink slips

to terminate them.. After this conversation: Clarence Paul

came into the room.

Employee Dasher testified that he was outside the lunch-

room and overheard part of the conversation and that he .

-heard something about the Union not doing any good and

causing less of jobs. RR Serce ,

‘I efedit Maxwell Paul’s testimony with regard to this

conversation. On significant details such the question of —

- who asked Maxwell Paul whether he had signed a union

card, Maddy and Ora Paul differed in their testimony. My

observation of both Maddy and Ora Paul as they testified

leads me to the conclusion that both are less than reliable

in their testimony. On the other hand Maxwell Paul was

very convincing. ; r

4. The conversation in Crane’s office

As set forth above, Crane admitted that in the presence ©

of Maxwell Paul and Maddy he ssked Willie Jeter and

-—_~~Maxwell Paul whether they had signed union cards.

Maddy’s testimony was substantially the same. Maxwell

_ Paul credibly testified that more was said in this conversa-

tion, as follows:. Before Jeter came into Crane’s office

Crane asked Maxwell Paul whether he signed a union card. -

Paul answered that he had. Crane asked if he was the-

' instigator and Paul answered that he was not. Crane then

asked if Jeter had-signed-a card or if Bowen, Jack Carr,

——~or Jim Aldridge had signed. Paul answered that he didn’t

_ know. Crane then asked Paul to go out and get Bill Jeter.

Paul went into the yard and returned with Jeter. Crane

interrogated Jeter asking. why he didn’t come to the Com-

' pany first. At that point Maddy said that the same thing

had happened before and they had gotten rid of the

instigators and. they could do it again. Weta

Willie Jeter in his testimony conéerning this conversation

did not remember Maddy’s remark about getting rid of

4

ee i 7 :

instigators but he did testify that Maddy asked him whether

arg ee oa and he answered he had, that he was asked —

who else joined fad he answered he did not know, and that

“Maddy said t that was all right because he, ee

would find out ie they were.

I credit Maxwell Paul’s version of this | ‘conversation. .

The testimony of both Crane and Maddy where it differed

from Maxwell Paul’s was unconvincing, My observation fg

of Jeter leads me to the conclusion that he was an honest

witness telling all that he recalled but that Maxwell Paul

- had a fresher recollection of exactly Whst happened at

sg meeting. - eta

‘ es ~5"The en employee status of Maxwell Paul:

——-

Maxwell Paul testified as follows: He was hired i in? 1962

and worked.until August 7 when he was, discharged.’ Some

time prior. to his discharge he worked: in the overseas

- shipping and receiving department - where he received,

erated and shipped materials:for overseas jobs. While he

‘spent 10 to 20 percent of his time ordering parts, his work

consisted primarily of manual Jabor. He was a leadman

in a 4-man department. He sometimes showed new men |

'. how to crate materials but he worked with the other men —

‘doing the same jobs.* Bill Crane who was his supervisor

never told him that he (Paul) was a supervisor. He was

hourly rated at, $2.50 an hour, punched a timéclock, and

had no ‘special. privileges. Though he relayed messages

and orders from Crane, he ‘never attended’ supervisory .

meetings.» He never hired, fired, or, recommended the hire

or fire of any employee, had no authority to grant time off

on his own, and never reprimanded or disciplined any

employee. With ‘regard. to the granting of time off, he _.

would ask-Crane and relay Crane’s decision. On occasions

~ Orane would ask him how a new man was doing. . With

* The complaint does not alloge that Maxwell Panl was discharged

_ in violation of the Act and therefore that question was not litigated. _

O

_- Urbano

-

ms. oe

regard to the ihactiig of natte, he was given the orders

which were already written up and okayed. _@rane decided .

_ what overtime work was needed a ‘who was ee

work. ae

Supervisor William Crane testified as Salles New

a told to report to Maxwell Paul and Paul,

tell them what to do. Four or five employees

—~ generally worked in Paul’s department. and at times there

were extras so that there were eight or nine employees i in

all. A normal procedure was for Crane to give the shipping

schedules to’ Paul and tell him to get the materials crated. |

Paul handled the entire shipment from purchases through ~

final recordings. Paul picked men for overtime work at

his diseretion. In J anuary,, while Crane was away from

” the yard, Paul handled Crane’s affairs. In December 1967,

after Crane had been sick for 5 days, he came back and -

found things in good order. Paul interviewed employees

and recommended their hire. One of these employees was

s who was interviewed and hired in*J wale

Another easpioyee interviewed by Paul was hired by Flora

- Paul recommended the discharge of employee Rip Miller

‘in or about December 1967 ‘and the recommendation was

' followed.” ‘Paul got 40 cents an hour more than the next

highest ‘paid employee in his department.

Where a conflict in testimony exists between Maxwell

Paul and Crane, I credit Paul. ‘Based on this credited

evidence, I find that Maxwell Paul was not vested with the - -

type of independent discretion in the performance of his

duties, with relation to other employees so as to warrant

the finding ses he was a supervisor.. — he was

\

ad Maxwell Paul specifically denied that he ae recommended the

discharge of Miller and testified that he had an argument with

. Miller as a coemployee because he, Paul, didn’t think that Miller

was holding up his end of the work and that Miller walked off

the job and didn’t return, but that he never recommended that

Miller be discharged. rs

p-..

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‘

clearly a°key man as well as a straw he did not have

the authority, with the use of independent judgment, to

hire, transfer, suspend, lay off, recall, promote, discharge,.

assign, reward, or discipline employees, or responsibly

- direct them a their grievances, or effectively recom-

mend such on. I find, therefore, that Maxwell Paul”

was not a supervisor within the meaning of Section 2(11)

of the Aat.: a

=

6. Conclusions as to the alleged violations -

of Section 8(a) (1) ;

Based on the credited testimony set forth above, I find

‘that Respondent violated Section 8(a)(1) of the Act by

' the activities of its supervisor, Maddy, who between

August 1 and 5:

(1): Interrogated 20 of the approximately 32 sialeiess

at the Ft. Lauderdale yard concerning whether they signed

a card for the Union, ‘interrogated most of those 20 em-

ployees concerning what they knew, about the Union, and.

; interrogated . employees McGlamory’ and Fusco. — the

union meeting.

(2). Implied that employees would be discharged if jin

joined the Union by telling employee E.. Pirkle that

|. Respondent had discharged employees for pnion activity

. in Louisana, and by telling employee Fusco that he knew

_ what was liable to happen to him if he signed. .

(3} Directly threatened to discharge. employees because ;

of their” union activities in statements to employees Dasher,

Clarence Paul, and Maxwell Paul,

(4) Promised benefits to’ employees for not joining thie |

‘Union as expressed to rer Mandeville, Cuthbertson,

; and Brown. iw,

(5) Threatened to close the plant if the Union came in |

as i Se 4 Clarence Paul.

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(6) Instructed employees Callender, Baughman, Keith,

and Dasher not to sign’Union cards, - age | =

> In addition I find that’ Respondent violated Section :

‘8(a)(1) of the Act by ‘tie activities of its Supervisor Crane

Who on August 2 interrogated Maxwell Paul and Willie

Jeter concerning whether they signed cars for the Union.

B. The Discharge of James F. Aldridge, 3

_.+ James F. Aldridge worked or Respondent as an engine

‘rebuilder and automotive mac t from January 2;°1967,

to August 5,. 1968, when he was discharged. On Friday,

. August 2, in the engineroom at the Ft. Lauderdale yard

answered that there was a warped camshaft in the Reo

motor that Aldridge had worked on. pica oe of oa

The decision to discharge Aldridge was made solely by —

Supervisor Maddy. During the time that Maddy was filling

in for Flora at the Ft. Lauderdale yard, two engines which

had been rebuilt by Aldridge were put on the test stand

and did not perform ‘Properly. One was a Reo engine

&

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ae ct | 52a

wthich had a warped camshaft that had to be replaced... ‘The

other was a Waukesha engine which also needed some addi-

tional work. Both motors were delayed in shipment wa:

‘, becanse of the needéd repairs. Maddy testified that he :

‘ thought Aldridge had fouled up both engines and as a

- result, when Flora returned to tlie yard, Maddy: told him — a

. that something. would have to “be done about the situation oe

or somebody else would be doing Flora’s job. Flora con- . ‘ore

firms the fact that it was solely Maddy’s decision to dis- i

charge Aldridge by testifying that, when he returned to

"the yard on Augugt 5, Maddy told him that Aldridge had

ty messed up some engines and that he, Flora, had either to

.. let Aldridge go or that he, Flora, would be let go. 12

: As noted above, Aldridge worked for Respondent for

over a year and a half. He was hired at $2.50 an hour and’

. during his period of employment he received three 10-cent-

_per-hour raises, the last. about June 15. While employed

_ he rebuilt approximately 80 engines. During the~entire

_ period of his employment.no one from Respondent ever

complained te Aldridge about his work. About June Flora

did mention to Maddy that he had received a phone call

from Louisiana and was told that a couple of Reo engines

~ had the rods in backwards. . However, Aldridge answered

that in that particular model engine the rods did go in in

an opposite direction from most engines and he then took

some oil pans off similar engines to show Flora that*they ,

12 It is apparent from the. testimony of both Flora and Maddy

that Flora had nothing to do with. the decision to terminate

Aldridge. + It follows that Flora’s testimony about his father-son

type of conversations with Aldridge about Aldridge’s drinking,

’ about Aldridge being inefficient in the ordering of parts, and about

his feeling that they were going to have to do something with

Aldridge was irrelevant with’ regard to the reason for Aldridge’s

discharge. Even if this were not the case Flora admits that he

knew when Aldridge was hired that he drank and he never told

»“ Aldridge that he had to stop drinking. He never reprimanded

' Aldridge with regard to the ordering of parts or with regard to

his work ——

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’. _ did/go in the way he said. Nothing else was said of this

incident. No. supervisor. ever’‘made any comment: to.

Aldridge about any other motor or engine that he worked

on. With regard to the two engines that didn’t properly

work on. the. test. stand. shortly before his ‘discharge, -

' Aldridge credibly testified as follows: utting.in the

camshaft -when the engine was rebuilt he checked it as ° -

best he could with the equipment available. However, it

didn’t, appear until the motor was tested on the test stand

’ that the camshaft was warped. He then replaced the cam- -

shaft. He never had a similar problem in the yard. With

. the Waukesha engine that wasn’t working properly on the

.test stand, he took out ‘the camshaft and replaced it. with

another camshaft but found that there was nothing wrong ©

with the original camshaft and there was a vacuum leak

cack | | assay

2. Conclusions as to the discharge of Aldridge

_ Aldri e engaged in an activity that is protected under ~

Section 7 of the Act when he signed the union: card.

Respondent obtained knowledge of this protected activity —

when it unlawfully interrogated Aldridge on Friday,

August 2, Aldridge was discharged on Monday, August 5.

The facts found in section A, above, establish that Respond-

ent bore a virulent animosity toward the Union as shown.

by the commission of many violatjons of Section 8(a)(1) _

of the Act. Included in these violations was the direct

' threat to employees that they would be discharged if they

engaged in union activity* §- ~~. | |

are

1 Of the 20 employees that Respondent unlay* wily interrogated .

concerning the signing of union cards, 14 «ered that they

had not signed cards and 6 answered that the nad. . The six who

_ had admitted signing cards were Fusco, Clarence Paul, Maxwell

Paul, Jim Bowen, J. Aldridge, and Jeter. The two alleged dis-

criminatees, J. Aldridge and Jeter, were both among the group

of six that had indicated they had signed cards. Maxwell Paul

was also discharged about this time but as he is not allowed as

a discriminates in the complaint no inference will be drawn from’

his termination. iy spies 3

*

a. RE RT a TE NA RE Ea NaS ete ns

Pee NG Ae LO MRE IR OF RR EP SE ee eS ee Se

54a

J

; f

The General Counsel has established a prima fatie o case

against which the Respondent’s defense must be evaluated.

-°. Supervisor Maddy does not contend that he considered

anything other than. the allegedly poor work by Aldridge

_ on two particular engines before coming to the -decision

to discharge Aldridge. *As Maddy’s decision was a sole

and ‘final one with regard to the discharge, any doubts

. . Flora may have had as to the caliber of Aldridge’s work,

which doubts were buried in the bottom of Flora’s mind

and unexpressed to either Maddy or Aldridge, have no

bearing on the ‘instant case. The mere fact that Maddy

.gave an ultimatum to Flora in directing Flora either to

fire Aldridge or be fired himself indicates that Aldridge’s.

discharge was not based on run-of-the-mill business con-:

siderations as Respondent contends. Aldridge had worked

for over a year and a half and during that time Respond-

ent considered that work to be of sufficient worth to warrant

three increases in pay. During the entire time he was

never reprimanded for poor work. Maddy, who had very

little contact with Aldridge’s work, as-he was just filling

in for Flora for a limited time, never bothered to even ask

Flora.‘what kind of worker Aldridge was but instead on.

the basis ofan extremely limited observation summarily -

decided to discharge him. 7

I find that Respondent ’s alleged reason for discharging

Aldridge was a transparent pretext to shield the real

' reason, which was Aldridge’s protected activity in signing

‘a union card. I therefore find that Aldridge.was dis-

- charged in violation of Section 8(a)(3) and (1) of the Act.

_ ©. The Discharge of Willie L. Jeter

Facts

Willie L. Jeter worked for Respondent from his date of ~

hire in the latter part of 1961 until his discharge on August |

7. He worked in the freight and shipping department at

B the Ft. Lauderdale yard where he received, packed, crated,

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. . and hauled freight. Though he was not a regular driver

_in the freight department, he did make three or four local

~ trips a week as well as an average of one out-of-State trip

a month. Gt haee is tse ae

On July 31 he signed a union card. As is more fully set

out in the section above entitled ‘‘The conversation in

Crane’s office,’’? Respondent learned that Jeter had signed

a card for the Union after unlawfully interrogating him.

August 2 was on a Friday. The following Wednesday,

August -7, Supervisor Crane called Jeter into his office .

in the middle of \the day, paid him till the end of the day,

and summarily discharged him, telling him that he hated

to do it but that it-was-ont of his hands. Crane told Jeter

that he was being let go because he did not operate.the |

forklift and because the day before he had left at 4:30 .

without saying anything to- Crane." ae ,

Respondent ¢ontends that Jeter. was discharged because

he was unable to complete ‘reports on‘ over-the-road trips

by himself, he left work at 4:30 p.m. on August 6 without

checking with Crane, atid he was unable to drive a fork-

lift truck. oats eRe enc

Jeter was in Respondent’s. employ approximately 7

years. He was hired ai #1.0¢ an hovr and during his em-

ployment he received incresses raising his pay, to $2.10 an

hour. The last wage increase was 10 cents an hour in or

about-May. Neither Crane nor any other supervisor: had

ever complained to him about his work. Crane admitted

.that Jeter was able to do the work with regard to- the

physical driving of that ‘truck.

Respondent contends that Jeter’s inability to fill out the

forms relating to over-the road truck driving became. a

-. ™ Crane testified that the reason he gave Jeter for the discharge

was that Jeter could not make out the fuel reports and that he

failed to report before leaving the yard on August.6. Crane ‘also

testified that he might have said something about Jeter’s not -

driving the forklift. I credit Jeter. .

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AALS CE POET ET ON I RIF TT ey NETS

PRIS RMRREE Te He ora sit mnon,

56a

problem on August 6 because Maxwell Paul who had pre- —

viously helped Jeter in filling out the forms was discharged

on that date. How signs Selasoeoasge. 4 that Maxwell

Paul help hitprepare the doc “simply because it

was quicker for the two of them to do it was never ques-

tioned by Respondent and no one ever told Jeter that he

should make out the forms by himself. As the forms only

had to be made out for out-of-State trips and Jeter only

took about one such trip a month, the completion of the

forms must have been a very minor part of his dutiés.

Respondent contends that ‘Jeter’s leaving work at 4:30

on August 6 was a serious matter because Maxwell Paul

‘was absent"and as second senior man Jeter knew that,

. when Maxwell Paul was not there, he was in charge. How-

ever, Crane admits that he never told Jeter that he (Jeter)

was going to be boss. As 4:30 p.m. was the normal quitting: ©

time, no one told Jeter that he was supposed io work

overtime, he was never told to check with Crane before

_ punching out, and he was never told that he was in charge

_ of the other employees, this defense cannot be taken seri-

ously.

The third item raised by Respondent is that Jeter did

not drive the forklift. However, about a year and a half

,before the discharge, Crane told Jeter to let the younger

men drive the forklift and Jeter hadn’t operated it since.

It is difficult to see why this duty which was apparently ©

a matter of minor concern for a year and a half before

the discharge becgme suddenly important as a reason for

discharging Jeter. : sical

The General Counsel has established a prima facie case

by evidence that Jeter engaged in protected activity within

the meaning of Section 7 of the Act in the signing of a

card, that Respondent gained knowledge of this activity

“through its unlawful interrogation on August 2, that Re-.

. spondent demonstrated its virulent animosity toward the —

- Union by engaging in the severe pattern of 8(a)(1) conduct

AY

‘ \

»

| big, oot ee as be

described above in section A which ineluded the threat to

discharge employees who joined the Union and the specific

threat to fire Jeter if he signed for the Union, and that

Respondent discharged Jeter on August 7, just.5 days _

after it learned of Jeter’s protected activity. Respondent’s

asserted reasons for discharging J. eter are so patently

frivolous that I can only conclude that they are a pretext

to disguise the real reason for Jeter’s discharge, namely

his protected activity in signing a union card. I therefore —

find that Jeter was discharged in violation of Section 8(a)

(3) and (1) of ‘the Act. .

‘D. The Alleged Violations of Section 8(a)(5) of the Act

1, The facts

a. The appropriate unit

The complaint, as amended, alleges and the answer, as

amended, admits that: . ieee ‘. eegeaed

—

All employees employed by the Respondent at its

Broward County equipment yard," excluding “office °

clerical employees, guards, professional employees and

' Supervisors as defined in the Act, constitute a: unit

appropriate for the purposes of collective bargaining

within the meaning of the Act. ; bene

b. The Union’s demand for recognition

On August 2 W. L. Henderson, the Union’s business

manager, sent & letter to Dan Stoneberger, Respondent’s

‘vice president and a supervisor within the meaning of the

_——_

Act, which read as follows:

This is to inform you that we now represent a majority

- of your Equipment Mechanic employees in this juris-

diction, namely, Broward County. 7 |

16 Referred to herein as ‘the Ft. Lauderdale yard.

ee,

58a

“We would like retognition as their collective bargaining

agent and will be happy to discuss this with you at your

earliest convenience.

On August 5 Stoneberger called Henderson’s office and i in .

Henderson’s absence spoke to Frank E. Harper, the Union’s

assistant business amnager. Stoneberger. asked Harper if. |

he had ever heard of the IBEW representing Respondent g'

kind of eifiployees. When Harper started answering,

Stoneberger told him not to bother because he would talk ~

’’ to.Henderson. The following day, August 6, ‘Stoneberger

called again and<did speak to Henderson. ‘ Stoneberger

said that he:received the letter but that he didn’t think that

the IBEW could represert his employees. Stoneberger

_ also said that he didn’t think that the Union represented a

- majority. of employees at the Ft. Lauderdale yard.

_ Henderson replied that the Union could represent the em-

3 ployes and that they did represent a@ majority. ‘

_ On the same date, August 6, Henderson wrote a second

letter to Stoneberger.as follows:

We have been advised that on pees 5, 1968 you dis-

_ charged two (2) employees because. of their member-

ship or activities in behalf of this Labor Union. Be

advised that we shall seek relief for. this discriminatory .

practice by filing a charge with the National Labor

Relations Board, unless these employees are im-

mediately reinstated with back pay.

In_ my letter to. you of August ond I specifically

advised you that we ‘Tepresent a majority of: your em-

ployees performing repair work on equipment and are

employed by you as Equipment Mechanics. I can only

assume by your discharge of James Aldridge and Jack

Carr that. you are refusing to recognize and negotiate

with us. If we are mistaken, that is, if you are willing

_ to recognize our majority representative capacity,

please advise us of that fact immediately and we can

arrange to prove that we represent the majority of

4

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- your employees. by any fair and impartial means. _We-.

are anxious to commence negetiations covering wages,

hours and conditions of employment for. the employees

we represent, and therefore. we’ request that you take

prompt action to accept us as the collective bargaining -

agent for the employees in the Unit described above. .

I shall ‘await your response. —

atl

On August 9 Stoneberger wrote to Henderson as follows:

Thank you for-your letter of August 2, 1968 and

\ August 6, 1968, aes

. Please be advised that we sincerely doubt that you

represent a majority of our employees at our Broward

County equipment yard, and therefore, do ‘not recog-

“nize you as their bargaining representative at this time.

Accordingly we respectfully invite you to use such

procedures. [sic]. as are available: to you under

applicable Federal law.

On September 30 Henderson sent the following telegram

to Stoneberger : 3S eee | )

PLEASE REFER TO MY LETTERS OF AUGUST 2 AND 6. IN |

- FURTHER CLARIFICATION OF THE UNIT OF YOUR EMPLOYEES

WHICH WE CONTEND WE REPRESENT. BE ADVISED THAT WE —

REPRESENT 4 MAJORITY OF YOUR EMPLOYEES AT YOUR

BROWARD COUNTY EQUIPMENT YARD. WE DEMAND RECOG-

_ NITION AND ASK FOR IMMEDIATE NEGOTIATIONS ‘AND WE

JORITY STATUS. PLEASE ADVISE a

ce. The number of employees in the bargaining unit

' aw@ the Union’s majority

As noted above, the Union demanded recognition by letter

dated August 2 and Respondent through -Stoneberger

responded to their demand in a telephone conversation to

Henderson on August 6. _ In that conversation Stoneberger

questioned the propriety of an IBEW local representing

?

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° 60a

Respondent’s employées and the Union’s majority status, . .

and in doing so he, in effect, on that date refused the

Union’s demand to bargain. As this refusal to bargain first

occurred on August 6, the Union’s majority status on that

date must be considered.

General Counsel’s Exhibit. 2(b) is is a list of 30 employees.

_ It was stipulated that these 30 were all employees in the

appropriate unit on August 6. It was further stipulated:

that the parties could introduce additi evidence con-

* cerning employees who'should or should hot be on the list.

_ Evidetice” was so introduced with res

t to four indi-

viduals: Maxwell Paul, Billy Harris, O. )

Jeter. have found that W. Jeter was discharged in

violation 0 Section 8(a) (3) of the Act and will therefore

fr

part of the day on August.6.% The General Conneel

tends that Billy Harris and O. Natali should also be

cluded on the list. Harris and Natali both testified that”

they are field mechanics: who receive no supervision from

the Ft: Lauderdale yard and whose’ job is to maintain

' equipment while it is in the field. It is clear. from their

testimony ‘that any connection they have with the Ft.

‘Lauderdale yard is a casual one and that they are not

employed at the Ft. Lauderdale yard so as to be included

within the appropriate unit. They therefore cannot be

added to the list.

I find that the total employee iniitiiaaian | in the appro-

priate unit on August 6 was 32 employees. Of these 32

Se eee for the ee. ‘The cards were

peas er

16 Paul testified that he worked until inl August 7. Cr&ne

testified that Paul had been terminated on August 6.

6la

all dated between J uly 18 and August 1, were all properly

_ authenticated, and were admitted in evidence.” At the time

the August 2 demand for recognition was written the Union

had all 20 cards in its possession. , 3

Emplovre . — Dare Carp SinEp CLASSIFICATION br

1. Wilson, F. July 31 Machinist

2. Marchman, R. . July 19 Mechanie

8. Callender, J. July18 . Mechanic

-4, Pirkle, E. July18 ©. Mechanic

5. Ellis, L. —~ > Gaa'e Mechanic

6. Keith. D. ' July 30 Mechanic :

7. Brown, L. — July 20 Mechanic

" & Fusco, T. July 22 - Mechanic Fy

' _9, Mandeville, J. ., July 29 Mechanic

10. Pirkle,T, July 19 ' Mechanic Helper

11. Tatum, E. . July24 Welder

12. Ashcraft, G. ; July29. Welder .

13. Sorrells,R. July 29 Welder

"14. Paul; C. ‘. . Aug. 1 ; ar wea

15. Dominguez, E. - : ainter — %

16, Hernandez, R. ._ ‘Painter .

17. Jeter, W. ae July 31 Warehouse Man

- 18, Andrix, E. é Warehouse Man

19. Matos, V. Wi Man

20. Dominguez, H Laborer

21. Forte,P. * Laborer

22. Robledo, A. ieee Laborer «=

. 23. MeGlamory,J. _ July 31 Truck Driver.. re)

' 24, Romich,C.. _ Truck Driver

25. Paul, O. Truck Driver

26. Gessner, B Clerk Parts

Pure

27. Butler, J. ‘' Parts Pic Man

28. Baughman, J. Aug. 1 - Parts Storekeeper .

29. Cuthbertson, R. _ July 31 \ Lnbeman a

30. Bowen, J. € ‘\, Messenger

31. Aldridge, A. July22_ , Engine Rebuilder ’

32. Paul, M. oe July 31 ___\ Warehouse Man

OMe list “Wilson” has the initial “i*®, white the card is signed

_~ “Wiley F. Wilson.’’ The list also shows ‘“‘T. Fusco’? while the

card is signed ‘‘ Anthony Fusco, Jr.”” As both card signers credibly

testified that they were employed during the time. period that

included August 6, I conclude that they are the ‘Wilson’ and

‘Fusco’? named in the list. :

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2. The Sospesilent "s diktncen

In substance Respondent contends that no violation ‘of |

Section 8(a)(5) should be found because:

a. The Union’s demands for recognition. dated August 2

and August 6 related solely to a unit. of equipment

“mechanics and that such a unit differed’ so substantially .

from the stipulated appropriate unit that no obligation on

the Respondent’s part could arise to bargain i in the appro-

priate unit.

b. The employees who signed cards for the Union were

merely applying for membership in the Union and were not

authorizing the Union to represent them for the purpose _

of collective bargaining. Therefore, the Union was never -

authorized to seetond the employees in the bargaining

- unit.

ce. The Union would not fairly represent two emptoyees_

- whose national origin was Cuban and éne negro employee

in the 2, bargaining unit, —

d. Decbsndint had a good-faith doubt that the Union

represented a idle of the employees in the bargaining

"unit. .

18 Ag to the Respondent ’s good-faith doubt that the Union repre-

sented a majority of its employees, Respondent in its brief states

that the doubt was based on the fact that only three employees and

one supervisor had admitted signing a card, that one employee

. had been coerced because he refused to sign, and because a super- ©

ba (Maxwell Paul) had purportedly been soliciting for the

nion.

‘Ora Paul testified that employees Cuthbertson and McGlamory

told him that he would have to join the Union or get out. He also

testified that employee Marchman made the same threat. Cuth-

bertson, McGlamory, and Marchman alli denied that they told.

Ora Paul he would have to leave the job if he didn’t join the

Union. I credited the three denials.

For the reasons set forth above I have found that Maxwell Paul

“was not a supervisor within the meaning of the Act. © Even if he

were, the record does not establish that he solicited the employees,

upon whom the Union’s majority status rests, to join the Union. .

oo . ee

cos

3. The facts with regard to the fair

. Tepresentation issue ingen ;

With regard to the Respondents allegations concerning _

. . the Union’s discrimination in members ip policy, the facts

_ are as follows: mR “tens |

_ Joseph Butler is the only negro employed by Respondent

at the Ft. Lauderdale yard. Though he was employed

. since September 1967, he was unaware that. the employees

were joining the Union and no one ever asked him to apply

for membership. Butler, is a parts pickup man and there- ©

fore isin the bargaining unit. W. L. Henderson, the.

Union’s business manager, testified without contradiction

that he was unaware that any Negro was employed at the

Ft. Lauderdale yard, that at the present, time the Union

has no Negro member, and that the Union haa had. negro

members in-the past and is now processing on¢: Negro for .

membership.. He further testified that the Union does not

discriminate against any minority group+on the basis of

race, creed, national origin, or. color. - os :

Two employees of Cuban origin, Eneldo Dominguez and

Pedro Alberto, did sign union cards. These- cards were |

dated July 29 and August 1 respectively. Employee Elbert

Pirkle took these cards together with the $10 initiation fee

for each employee and kept them in his truck until

December 9, Pirkle testified that he intended to give the

cards to the Union when they were given to him but that’

he spoke to employee Clarence Paul who told him to hang

on to the cards until things cooled off because they did not

want to get Dominguez ‘and Alberto fired. Pirkle further

- testified that he forgot he had, them in his truck until Thurs-

day; December 5 (during the coursé of this trial). *Union’

Business Manager Henderson testified that he heard for

the first time about the cards of Dominguez and Alberto

during the trial on December 5 and he called Pirkle that

* evening. Henderson asked Pirkle for the ‘ecards and ‘took .

them on December 9. Henderson testified that the cards

\ would be processed. eee.

_®

ates

SPR ca meme orren enim PNA OG Re PERIL AG DD 9A TELIA FOR Mrs PO OEE hE 9D SE MY a Fore cs

Cha

. I find Pirkle’s allegation that he kept possession of the

Dominguez and Alberto cards to protect those employees

and later because he forgot about them simply incredible.

-~ However, I do credit Henderson’s assertion that he found

out about those cards during the trial and then took pos-

session of them. . There is no evidence in the record, other

than set forth above, to be evaluated in determining whether

in fact the Union does discriminate because of color or

: national origin.” 7

4, Analysis as to the eer violation of

~ Section 8(a) (5)

a. The fair representation issue.

It ‘can well be ‘argued. that a labor organization whose

membership ‘policies invidiously discriminate against. em-

ployees on the basis of race or national origin inherently

is-incanable of faitly representing such employees. It can

-furth.. be argued that such inability to fairly represent

should be a defense against an 8(a)(5) allegation where

~ members of the discriminated against group are part of

_ othe bargaining unit. Cf. United Packinghouse, Food and

Allied: Workers International Union, AFL-CIO v. N.L.R.B.,

. F.2d .. (C.A.D.C.) 70 LRRM 2489. However, a legal:

analysis of these propositions would only be warranted in

a case where the evidence on the record establishes that

the Union does so discriminate.

I have found that the reasons given by Pirkle for his |

retaining the union cards of Dominguez and Alberto were

19 En footnote 7 of -its Brief Respondent suggests that it was not

_ allowed to fully explore this issie. During the t-ial Respondent

offered to prove that if Ora Paul were permitted to testify he would

, te&tify, that several employees told him that they did not approach ~

Joe Butler because they didn’t want him in the Union. I ruled

_ that such testimony would be hearsay unless Respondent made and

supported the contention that the employees were — as agents

of the Union. No such contention was made.

we... han shes ai nt AGS A peri ince ey achiag Minin ed oe

-6da

not credible. In the absence of any other explanation I

believe that a fair inference can be made that Pirkle held

‘the cards because of the national origin of those two em-

ployees. From the evidence on the record it is more difficult

to infer that Joseph Butler was not asked to sign a union

card ‘because he was Negro. However, even if such an

inference can be made, it must be noted: that all of the

~* solicitation of cards at the Ft. Lauderdale yard were made

by employees. -The Union did not seek out Pirkle and

designate him as its agent in the solicitation of cards.

Rather, Pirkle who Respondent in its brief describes as

‘‘the self-appointed employee organizer’’ received cards

’ from an employee in another shop and other cards from:

the Union.. He distributed some and gave some to other

employees to distribute. There is absolutely no evidence

in the record that the Union had -knowledge that there

" was any discrimination based on race or national origin

prior to the date of the trial. Shortly after becoming aware

of the problem the Union took possession of the cards

signed by Dominguez and Alberto and Henderson has ~

testified they will be processed. In no sense can it be said

that the Union ratified the conduct of the employees who

solicited cards. I therefore find that the failure to solicit

a card from Butler and the withholding of the cards of

Dominguez and Alberto can not be attributed to any

membership policy of the Union. The admission hy

Business Manager Henderson that at the present time

there are no Negro members in the Union indeed raises

a suspicion. However, standing alone it dges not prove _

' that the Union had discriminatory menibership policies;

particularly where Negroes have been members in the past

and the application of a Negro is now pending, As the

evidence does not establish that the Union’s membership ~

| policies discriminate on the grounds of race or national

origin a legal analysis of the — of.law mentioned

above is not in order.

66a |

b. The unit and the demand:

The appropriate unit.as stipulated to at the hearing

consists of all Respondent’s employges at the Ft. Lauder-

dale yard with the usual exclusions (office clericals, guards, -

professionals and supervisors). Of the 32 employees in

this unit on August 6, 8 were mechanics, 1 a mechanics’

helper, 1 an engine rebuilder, 1 a machinist, and the balance ©

welders, painters, warehousemen, laborers, truck drivers,

and other nonmechanics. The Union’s demand for recog-

nition dated August\2 states that the Union represents a

majority of equipment mechanics. The letter of August 6

- states that the Union represents a majority of employees).

performing repair work on equipment and who are em-

ployed as equipment mechanics. Not until the Septembér.30

telegram did the Union specifically tell Respondent that

the Union sought representation in an all-employee unit.

The question presented is whether the Union’s demand

of August 2 sufficiently identified the unit in which bar-

gaining was sought to provide a foundation for a aw

that Respondent #efused to bargain in an all-employe

- unit. .In determining whether the parties understood t

an ‘‘all employee’’ unit was the subject matter of an

Union’s demand, the wording of the demand in itself . is

- important. However, all fhe surrounding circumstances

must be considered, as no magic words are needed in this

field of law. Benson Wholesale Company, Inc., 164 NLRB

No. 75. The important question is whether the Employer

knows he is being asked to bargain with the Union as a

representative: of a: certain group of employees. The .

Union’s August 2 letter did mention equipment mechanics.

However, Respondent, through its unlawful interrogation, |

did ascertain that a mechanic, a painter, two warehousemen,

_. @ Messenger, and an engine rebuilder had signed cards for

. the Union.” On August 6 when Respondent’s vice presi-

2 Fusco, C. Paul, M. Paul; Jeter, and Aldridge. In addition |

Ora Paul, a truck driver, told Respondent that he had been solicited

- to join the Union.

I a sisesistccint sn sineassniech tests air Sandan

67a

dent, Stoneberger, called Union Business Manager Hender-

son, Stoneberger said: that he doubted that the Union

represented a majority of the employees.at the Ft. Lauder-

dale yard. Henderson replied that he did represent the

majority. There was no mention of mechanics: as such

and both the Union and Respondent appeared t6. have an

all-employee ‘unit in mind. Certainly Respondent did not

- question the size of the unit nor indicate that it thought

the Union-was seeking a mechanics only unit. Respondent’s .

stated reasons for not recognizing the Union were that

‘Respondent did ‘not think the IBEW could represent its

. employees and that: Respondent doubted that the Union

represented a majority of employees at the Ft. Latiderdale

yard. The refusal was not based on the scope of the.

Union’s demand. In its followup demand of August 6 the |

Union’s letter also contained the phrase ‘equipment

mechanics.’’ However, in its reply of August 9 Respondent

wrote that it doubted the Union represented a majority

of ‘‘our employees at our Broward County equipment

yard’’ and therefore €efused to bargain. The language of

Respondent’s August 9 letter makes it clear that Respond-

ent was interpreting the Union’s demand as one which

encompassed an all-employee unit. As Respondent under-

stood the Union’s demand to be in an all-employee unit.

and as Respondent’ made no ‘objection to the narrow

language of the Union’s letter of August 2 and did not

base its refusal to bargain on such language, I find that

the Union did make a proper demand for bargaining in the

’ appropriate unit. | i hae

@. Majority status ;

On August 6, the date of Respondent’s refusal to bargain

with the Union, 20 out of the 32 employees in the bargain-

ing unit had signed cards for the Union. These cards

were not the ordinary authorization cards but were

applications for-membership in the Union. The Board,

with court approval, has long held that signing of an |

-

>

a

68a

application for membership in a labor organization’ in it-

self authorizes that labor organization to bargain for the

card signer. - Blade-Tribume Publishing Company, 161

NLEB 1512; Delaware-New Jersey Ferty Company, 30

NLRB 820, enfd. in pert. part 128 F.2d 130 (C.A. 3);

N.L.R.B. v. Somerset Shoe Company, 111 F.2d 681 (C.A. 1).

I find that on Atngust 6 the Union was authorized by a

majority: of the employees in the appropriate bargaining

“unit to represent them in collective bargaining with

Respondent.

d. The alleged good-faith doubt

The criteria for determining whether an employer is

acting in good or bad faith in questioning the Union’s

majority is set forth in Hammond €& Irving, Incorporated,

154 NLRB 1071, where the Board held:

_ The Board has long held that an employer may insist

upon a Board election as proof of a union’s majority

if it has a reasonable basis for a bona fide doubt as to

the union’s representative status in an appropriate |

unit. If, however, the employer has no such good- ©

faith doubt, but refuses to bargain with the majority

representative of its employees because it rejects the

collective-bargaining principle or desires to gain time

within which to undermine the union and dissipate its

majority, such conduct constitutes a violation of

Section 8(a)(5) of the Act. (Joy Silk Mills, Inc., 85

NLRB 1263, enfd. as modified on other grounds 185

F.2d 732 '(C.A.D.C.), cert. denied 341 U.S. 914.) In

determining whether the employer’s action was taken

to achieve either of the said invalid purposes, the —

Board considers all;the surrounding circumstances as

well as- direct evidence of*motivation. Absent such

direct evidence, where extensive violations of the Act

". accompany the refusal. to grant recognition, they.

evidence: the employer’s unlawful motive and-an in- ©

ference of bad faith is justified.

——_—

SA un teens: eres eneeerem sen

P

Direntnsasninsibeesimitchitete dettbsisticiiat ter cintet. canines

69a

In applying these criteria the Board has held that the

commission of narrow violations of Section 8(a)(1) of the

_Act do not necessarily indicate’a rejection of the collective-

bargaining principle. Fashion Fair, Inc., 173- NLRB No.

28 ; Grafton Boat Co., Inc., 173 NLRB No. 150; J. C. Penney

Company, Inc.; 172 NLRB No. 82, However, the Board - ~~

has consistently held that substantial violations of Section

-8(a)(1) and: (3) of the Act do warrant a conclusion that

an employer does not have good faith in questioning a

union’s majority status. In the instant ease: Respondent

engaged in extensive violations including wholesale un-

lawful interrogation, threats to discharge employees

because of their union activities, promises of benefits to

employees to refrain from union activity, and the discharge

of.two employees because they joined the Union. This

gonduet on the part of the Respondent evidenced its com- .

plete rejection of the collective-bargaining principle rather

than any good-faith doubt that the Union had a majority.

Respondent, may. not destroy the very conditions needed °

f¢@ a fair election and at the same time successfully main-

. tain that an election is the sole means for determining the

desires of the employees. Respondent’s unlawful coercive

conduct began on August 1 immediately after it learned

that its employees were engaging in union activities and

culminated with the discharge of Jeter on August 7, the

day after it notified the Union that it would not bargain.

The Respondent’s conduct both before and after the demand

for recognition is part of the same pattern which clearly

_ establishes Respondent’s rejection of the collective-

_ bargaining principle. Gibson Products Company of Wash-

ington Parish, La., Inc., 172 NLBEB No. 243. Such conduct -

violates. Section 8(a)(5) of the Act. Jerome T. Kane

d/b/a Kane Bag Supply Company, 173 NLRB No. 180;

_Rish Equipment Company, 173 NLRB No. 136; Bawman

- Chevrolet, Inc., 173 NLRB No. 78; Heck’s Inc., 172 NLRB

' No. 255; Beaver Bros. Baking Co., Inc. d/b/a American

70a"

Beauty Baking Co., 171 NLRB‘No. 98." Violations of the

_ Act both before and after a demand for revognition may

show bad faith. . San ‘Angelo Packing Company, 163 NLRB...

-No. 118; Boot-Ster’ Manufacturing Company, Inc., 149

NLRB 933, enfd. 361 F.2d 325 (C.A. 6). .

Respondent’ s attitude toward collective bargaining was.

well summed up in Supervisor’s Maddy’s remark to em-

ployee Aldridge: ‘‘I can fix any of those smart boys.

I know all about the union, they can’t touch the State of

Florida. x

I ilies find that ~~ on a hia 6 did not

have a good-faith doubt that the Union represented a

mapority of employees in the appropriate unit.

‘

4

*@. Conclusion as to the 8(a)(5) allegation

Having found that the Union made a demand for recog-

nition in an appropriate unit, that the Union was authorized

by a majority of the employees in said unit to represent

- them, that the Respondent refused to bargain with the

Union, and that the Respondent did not have a good-faith

doubt that the Union represented the majority of the em-

ployees in the unit but instead sought by unlawful means

to undermine the Union, I find that the Respondent violated

:, Section 8(a) (5) and (1), of the Act.

'. Jn reaching this conclusion I am not re on the testimony

of employee Dasher who testifies that Maddy admitted ‘to him that

‘the Union had 51 percent of the employees. Though Dasher was

honestly trying to recall the entire incident, he was obviously

confused as to whether Maddy said that the Union claimed to repre- .

_ sent the employers or whether Maddy said the Union did represent

the employees. In addition he was very uncertain as to when the

conversation occurred. Under these circumstances I do not believe

- that Dasher’s testimony in this regard has probative weight. .

on]

f+ mee

{la

“ - £. The unilateral change—

facts and conclusion ©

~~ several years the regular hears of employment at

the Ft. Lauderdale yard were ftom 7 a.m. to 4:30 p.m. on

weekdays and 7 a.m. to 12 noon on Saturdays. The number

of hours worked per week varied from time to time

' depending on the workload but the usual workweek was

aA

as stated. On December 2 Respondent posted a notice on

its bulletin board stating that the workday on December 2

would be 7 a.m. to 3:30 p.m. and that in December 3 and

thereafter it would be 8 a.m. to 4:30 p.m. There was no

mention of Saturday work. This was the first time such

a notice had been posted. The new hours were thereafter

observed. During the hearing the General Counsel amended

the complaint to allege this change in hours as a violation

Of Section 8(a)(5) and (1) of the Act. The General

Counsel made clear that he was not-aleging that the change

in hours was a discrimination because of union activity and

he did not argue that the change had other than economic

motivation. His theory simply was that a unilateral change

was mate at the time when Respondent had a duty to

barge.m with the Union. Respondent did not bargain with

the. Union about the change. I find that the change was

a unilateral modification of existing-working conditions and

as I have already found that the Respondent had a duty

to bargain with the Union, the’ change is an additional

violation of Section 8(a)(5) and (1) of the Act. I will

: therefore recommend that the Respondent be ordered to

cease and desist from making such unilateral changes. -

However, in the circumstances of.this case where the under-

lying duty to bargain is being litigated, I do not believe that

any additional remedy for the unilateral change would be

warranted. Cf. Donua Lee Sportswear, 174 NLRB No. 54.

720,

Iv. The Effects of the. Unfair Labor Practices

Upon Commerce

The activities of the Respondent set forth in section II, .

above, occurring in connection with Respondent’s opera-

tions described in section I, above, have a close, intimate,

“~*~ and substantnal relationship to trade, traffic, and commerce —

among the several States and tend to lead to labor disputes

burdening and obstructing commerce and the free flow of

commerce. | 2

_V. The Rémedy .

Having found that the Respondent has engaged in certain

unfair labor practices, I shall recommend that it cease and

desist. therefrom and take certain affirmative action

designed to effectuate the policies of the Act.

Having found that Respondent engaged in unfair labor

practices within the meaning of Section 8(a)(5) and (1)

of the Act, I shall.recommend that it cease and desist there-

from and upon request bargain collectively with the Union

as the exclusive representative of all employees in the unit

set forth above and, if an understanding is «reached,

embody such understanding in a signed agreement.”

- Having found that Respondent discharged and failed to ©

reinstate James F’. Aldridge and Willie L. Jeter in viola-

tion of Section 8(a)(3) and (1) of the Act, f shall further

recommend that Respondent offer reinstatement to said

employees) and make them whole for any loss of pay

resulting}from their discharge from the date of their dis-

charge to'the date on which they are offered reinstatement,

less their net earnings during that period. Such backpay

_ 2In view of the Respondent’s numerous and serious violations

of Section 8(a)(1) and (3) of the Act, I would recommend a bar-

gaining order as a remedy to those violations even if no violation

of Section 8(a)(5) were found. Irving Air Chute Company, Inc.,

149 NLRB 627; Frito-Lay, 169 NLRB No. 115; Heck’s Ine., 172

NLREB No. 255.

-

.

ee aes i oe

738

shai be computed on a quarterly basis in a manner

prescribed in F. W.. Woolworth Company, 90 NLRB 289,

and shall include interest at 6 percent as provided in Isis

Plumbing & Heating Co., 138 NLBB. 716.

Upon the basis of the foregoing findings of fact and

‘ upon the entire record in the case, I make the following:

| Conclusions of Law

s.. es Ex Se

_ 1. Respondent is an employer engaged in commerce and -

in operations affecting commerce ‘within the Ieaning of

Section 2(6) and\(7) of the Act. Aen 3

2. The Union is\a labor organization within the meaning

of Section 2(5) of the Act. :

3. The following employees constitute a unit appropriate

for the purpose of collective bargaining within the meaning

of Section 9(a) of the Act: |

All employees employed by Respondent at its Broward .

County equipment yard, excluding office clerical em-

Ployees, guards, professidiial employees - and super-

visors as defined in the Act. york

4. At all times since August 2 the Union has been the.

exclusive representative of the employees in the aforesaid

unit for the purposes of collective bargaining with respect

to rates of pay, wages, hours of employment, and other

terms and conditions of employment. ” 7

5. By refusing on August 6 agd thereafter to bargain

with the Union as the exclusive representative of the em-

ployees in the said appropriate unit, the Respondent has

engaged in and is engaging in unfair labor practices within

the meaning of Section 8(a)(5) of the Act..

- 6. By discharging and using to reinstate James F.

Aldridge and Willie L. Jéer because of their activity on

behalf of the Union, thereby discouraging membership in

the Union, Respondent has violated Section 8(a)(3) of: °

the Act. ;

"

(by the foregoing conduct and by interrogating its

employees about their union activities, by threatening them

with discharge if they engaged in such activity and by

promising them benefits if they refrained~from/’ such

activity, Respondent has interfered with, restrained, and

- coerced its employees in the exercise of the rights guaran-

teed to them by Section/ 7 of the Act and canehy has

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

8. The aforesaid unfair labor practices are unfair las °

practices affécting commerce within the meaning of Section

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

rt oe Onper

_ Upod the basis of the foregoing findings of fact and con-

clusions of law, and upofi the entire record in this case, I

recommend that spite Nat Harrison Associates, wae

‘shall:

5 ‘Cease and desist from:

(a) Interrogating its — about their union

. activities.

(b) Threatening its iia with loss of jobs or

economic benefits if they become mémbers of or assist the

International Brotherhoed «of Electrical rr Local

No. 728, AFL-CIO.

(c) Promising its eniployees economic benefits if they

_ refrain from becoming a member of or ve that labor

organization.

(d) Discriminating against its eiinias by rier

them in order ‘to discourage membership in that labor

organization.

(e) Refusing to recognize and bargain with the Inter-

national Bortherhood of Electrical Workers, Local No. 728;

_ AFL-CIO, as the exclusive representative of its employees: : ~

‘in - following unit :-

+

nS ae

owe i

/

j

/

tere se Ta

All employees employed by Nat Harrison Associates,

‘Inc., at its Broward County equipment yard, excluding

office clerical employées, guards, professional em-

ployees and supervisors as defined in the Act.

(f) Unilaterally changing the terms ‘and conditions of ©

employment of its employees in said unit without bargain-

_ ing with said labor organization as the exclusive repre-

sentative of.the employees in that unit.

(g) In any manner interfering with, restraining, or

coercing its employees in the exercise of their rights

| guaranteed in Section 7 of the Act.~

2. Take the following affirmative action to effectuate the

policies 6f the Act: -

“ys

(a). Offer to James F. Aldridge and Willie L. Jeter

reinstatement to“their former or substantially equivalent

positions without prejudice to their seniority and other

rights. and privilegés. —

(b) Make whole the above-named_employees for any loss

of pay they may have suffered by reason of the discrimina-

tion against them by payment to each of them of a sum of

money equal to the amount he normially would have earned

as wages from the date of ‘the discharge to the date of

the offer of reinstatement, in the manner set forth in the -

section of this Decision entitled ‘““The Remedy.”’

(¢) Notify the above-named employees if presently serv-:

ing in the Armed*Forces of the United States of their right

to full reinstatement upon application in accordance with

the Selective Service Act and the Universal Military Train-.:

ing and Service Act, as amended, after discharge from the

Armed Forces.,

(d) Upon request bargain collectively with the Inter-

- national Brotherhood of Electrical Workers, Local No. 728,

_ AFL-CIO, as the exclusive representative of all the em-

ployees in the appropriate unit described above, and, if.an

.

‘

4

—_—

— ce a ee i

oe

.

76a

Baenreee ved is reached, embody sual ntapdiniing in’

a signed agreement. —

(e) Post at its Fort Lauderdale, Florida, yard, copies of

the attached notice marked ‘‘Appendix.’?* Copies of said

notice, on forms provided by the Regional Director for

Region 12, after being duly signed by Respondent’s

authorized representative, shall be posted by the Respond-

ent immediately upon receipt thereof, and be maintained

\ by it for 60 consecutive days thereafter, in conspicuous

places, including all places where notices to employees are

customarily posted. Reasonable steps shall. be taken by

the Respondent to insure that said notices are not altered, ©

defaced, or covered by any other material. 7

(f) Notify the Regional Difector for Region 12, in

writing, within 20 days from the receipt of this. Decision,

what steps have. been taken to comply herewith.™: ;

Dated at Washington, D.C.

ao - ~. —

%In the event that this Récommended. Order i 1s aii by the

. Board, the words ‘‘a Decision and Order’’ shall ‘be substituted

‘for the words ‘‘the Recommended Order of a Trial Examiner’’

and in the first paragraph of the notice the words ‘‘a Trial Ex-

aminer of’’ shall be deleted.' 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 Appeals En-

forcing an Order’’ shall be substituted for the words “‘a aerated

and Order.’’

* In the event that this Revemintaded: Order is adopted by the

- Board, this provision,shall be modified to read: ‘‘Notify the Re-

gional Director for Region 12, in writing, within 10 days from the

date of this Order, what steps Respondent has taken to comply

herewith.’’ '

2 :

Notice To Aut EmMProyvers

Pursuant to the Recommended Order of a Trial Examiner

of the National Labor Relations Board. and in order to

effectuate the policies of the N ational Labor Relations Act,

as amended, we hereby notify our employees that:

After a Trial at which all sides had the chance to give.

evidence, a Trial Examiner of the National Labor Rela-

tions Board has found that we violated the National Labor

Relations Act, and has ordered us to post this Notice. 7

The Act gives all employees these rights:

To engage in self organization.

To form, join, or help unions

_ To bargain collectively through a representative

of their own choosing |

To act together for collective bargaining or other

mutual aid or protection ; ;

To‘refrain from any and all of these things

We Wu Nor do anything that interferes with these

rights. More specifically, |

We Wu Nor ask you whether you are a member

of or are helping the International Brotherhood of

Electrical Workers, Local No. 728, AFL-CIO.

We Wut. Nor threaten you with loss of your job or

any benefits you now enjoy if you become a member

_ or help that Union. | |

* oil

. We Wu Nor promise to. reward you in any way if

we

Ps

‘ you refrain from becoming a member of or helping that

. Union.

We Wu Nor discharge any employee to discourage

membership in that Union.

>

78a

We Wut immediately offer to remstate James F.

Aldridge and. Willie L. Jeter to their former or sub- |

stantially equivalent positions without any change in ff

seniority or other privileges they enjoyed before we

discharged them and ‘we will pay to them any money

they lost as a result of the discrimination against them

with interest at 6 percent.

We Wut notify the above-named employees if

presently serving in the Armed Forces of the United. ;

_ States of their right to full reinstatement upon applica- \a

tion in accordance with the Selective Service Act and : 5

the Universal Military Training and Service Act, as

» amended, after discharge from the Armed Forces.

We Wut recognize International Brotherhood of

Electrical Workers, Local No. 728, AFL-CIO, as the

_ only collective-bargaining representative of our em-

ployees in the bargaining unit which is:

All employees employed by us at our a

County equipment yard, excluding office clerical — 7 og YG

employees, guards, professional employees and cf

supervisors as defined in the Act. f

We Wu bargain on request with the International

Brotherhood of Electrical Workers, Local: No. 728,

AFL-CIO, on wages, hours and conditioris of employ-

ment and any agreement we reach will be put in writing

and signed. |

_ We Wut Nor change your hours or other conditions.

of employment without bargaining with the Inter-

national Brotherhood of Electrical Workers, Local

No. 728, AFL-CIO.

Nar Hareisow Associatzs, Inc.

ve 7

_ (Representative) — - sinc

79a

| This notice must remain posted for 60 consecutive days

from the date of posting and must not be alteréd, defaced,

or covered by any other material.

If employees have any question concerning this notice or

compliance with its provisions, they may communicate

_ directly with the Board’s Regional Office, Room 706,

' Federal Office Building, 500 Zack Street, Tampa, Florida

33602, Telephone 813-228-7711, Ext. 227.