# Amicus Curiae Brief — National Labor Relations Board v. Gissel Packing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0029%3A25 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 575 ## Text - 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 : . at Amicus Curvae . 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F / / - Ma a . ° 7 PE ALOR LAA LEER EATS, IME aH Ge OTTO a pene Som SOE RN OR RET EE te 4 mn Foor uae; "¥ i ‘ ‘ta ee ae 1a ete piers en ~ fe sat bach Pmapircc ‘Wei iene | iia: died abet » % Be 2 oe be r H » “ a ro ae ey en \ 8, 's er Baer essay tty ee NY ee oer ee ee OO aa el SESE air ™~ 176 NLBB No. 91 : 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 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-.. Lo F a ee ‘ 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. ‘ro ae aca ite sd . ee Ne f | | (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 & : ee wr ‘ : e : m - ™ 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 —— iets ela ntcaie ites Gi BLAIS NPA AR OI ARNE MOI A MA ARI Oe nee nl tonto HOA er . ° a” . . ’ PLO IR IRR MEE Oe Cree He RE-8 otiig eRe ERAT ae hata eR EEE CATT COT FP NE See TE SS | > a an > 58a. | ’. _ 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, « “« be din RAE SRAM TO es iin esata tse nin PORTE ETRE Tree ETN REE Ee tea ee ete DIET AIS erg RE Re RE SRR OREN ARO IE IR eeRER Og &, 55a . . 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. . > er ee ee ee eee ray 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 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. : | ey yer 43 7% . . heats , hele ~~) ante Aen g ia o e” Rez, eee P - alta tate - ea Fe IE OES ual ee q) . 62a 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 bar [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0029%3A25. Public record. Not legal advice.