Broyhill Co.

National Labor Relations Board - Board Decisions

Apr 29, 1974

210 N.L.R.B. 288 (N.L.R.B. 1974)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broyhill Company and District Lodge No. 162, Inter- the Regional Director shall issue the appropriate
national Association of Machinists and Aerospace certification in accordance with the Board' s Rules
Workers, AFL-CIO. Cases 17--CA-5619 and and Regulations.
17-RC-7166
April 29, 1974
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 28, 1973, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order in Case 17-CA-5619, and
his recommendations with respect to the disposition
of the issues raised in Case 17-RC-7166.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Broyhill Company,
Dakota City, Nebraska, its officers, agents, succes-
sors , and assigns, shall take the action set forth in the
said recommended Order.
IT IS FURTHER ORDERED that Case 17-RC-1766 be,
and it hereby is, severed from Case 17-CA-5619 and
that the same be and it hereby is remanded to the
Regional Director for Region 17 as provided below.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining with the Respondent-Employer,
the Regional Director for Region 17 shall, pursuant
to the Board's Rules and Regulations, within 10 days
from the date of this Direction, open and count the
ballots cast by Laverle Miller, Gerald C. Cook,
Donald L. Rupe, Roy H. Macias, and Jeffrey B.
Schroeder, and thereafter cause to be served on the
parties a revised tally of ballots including therein the
count of the above-mentioned ballots. Thereafter,
1 The Administrative Law Judge overruled the Respondent-Employer's
objection to the election held on August 16 , 1973, which alleged that the
date chosen by the Regional Director was inappropriate in view of the
seasonal nature of its business and that , as a result, a substantial number of
eligible employees were thereby prevented from voting.
In overruling the objection and sustaining the Regional Director, the
Administrative Law Judge relied upon the fact that the scheduling of a
representation election is a matter falling within the special competence of
the Regional Director and that on August 6, 1973 , the Board sustained the
Regional Director 's Decision when it denied the Respondent -Employer's
Request for Review on this issue . He was of the opinion that the Board's
denial foreclosed further consideration of this matter , and thus did not find
it necessary to pass upon the merits of the objection.
The above matter was fully litigated at the hearing . The General Counsel,
while agreeing with the ultimate conclusion of the Administrative Law
Judge, contends that the substantive issues should be decided to foreclose
further litigation on this matter . We find merit in this contention and shall
consider the objection on its merits.
We find no evidence in the record to support the Respondent-Employer's
position that the date chosen by the Regional Director for holding the
election in question was inappropriate and that another date would have
been preferable . Indeed, the Respondent-Employer presented conflicting
and contradictory evidence as to alternative dates . Nor do we find any
support in the record for the contention that because of the date chosen a
substantial number of eligible employees were thereby disenfranchised. To
the contrary, the record shows that the Respondent -Employer's contentions
in this regard are merely speculative and without factual support.
DECISION
STATEMENT OF THE CASE
PAUL BISOYER, Administrative Law Judge : This consoli-
dated proceeding, with all the parties represented, was
heard on October 10 and 11, 1973, in Dakota City,
Nebraska, on the complaint of the General Counsel issued
on July 3, 1973, in Case 17-CA-5619,' and the answer of
Broyhill Company, herein called the Respondent or
Company. In issue are the questions whether the Respon-
dent , in violation of Section 8(axl) and (3) of the National
Labor Relations Act, as amended ,2 discharged employees
Donald L. Rupe and Roy H . Macias because of their
protected union and other concerted activities and whether
the Respondent engaged in other acts of interference,
restraint, and coercion of employees in the exercise of their
statutory rights in violation of Section 8(axl) of the Act.
Consolidated with the unfair labor practice case for the
purpose of "hearing, rulings and decision" by the Adminis-
trative Law Judge are challenges to the ballots cast by
certain employees, including the above-mentioned dis-
1 The complaint is based on a charge filed by District Lodge No. 162,
International Association of Machinists and Aerospace Workers , AFL-CIO,
on May 7 , 1973, a copy of which was' duly served on the Respondent by
registered mail on the same day.
2 Section 8(axl) of the Act makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7." Insofar as pertinent , Section 7 provides
that "[e ]mppoyees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection ...."
Section 8(aX3), with certain qualifications not material herein, prohibits
an employer "by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization ...
210 NLRB No. 37
BROYHILL COMPANY 289
charged individuals , in the election conducted in Case
17-RC-7166, and the objections to that election filed by
the Respondent . At the close of the hearing, the parties did
not avail themselves of the opportunity afforded them to
argue their positions orally but thereafter the General
Counsel and the Respondent filed briefs.
Upon the entire record ,3 and from my observation of the
demeanor of the witnesses , and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Nebraska corporation, is engaged in
the manufacture and distribution of agricultural , industri-
al, and turf equipment at its plant in Dakota City,
Nebraska. In the course and conduct of its business, the
Respondent annually purchases materials valued in excess
of $50,000 which are shipped directly to this plant from
sources outside the State.
It is conceded, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
employees Donald L. Rupe and Roy H. Macias on May 3
and 4, respectively, because of their union activity.
Thereafter , pursuant to the Regional Director's Decision
and Direction of Election issued on June 15 , as subse-
quently clarified and amended , a secret election was
conducted on August 16 among the employees in the unit
found appropriate . The tally of ballots showed that out of
approximately 86 eligible voters, 23 cast ballots for, and 19
against, representation by the Union, and 8 cast challenged
ballots which were determinative of the election results.
Included among the challenged ballots are the two cast by
the discharged employees , Rupe and Macias , and the
ballot cast by McWilliams, who the Union and the General
Counsel claim was a supervisory employee. Also to be
resolved are the challenges to the ballots of James Sjovall
and Jeffrey B. Schroeder . At the hearing, the parties agreed
that the challenges to the ballots of Laverle Miller and
Gerald C. Cook be withdrawn and that their votes be
counted and that the challenge to the ballot of Earl
McFarlin be sustained.
Following the election, the Respondent filed four
objections to the election, three of which it subsequently
withdrew.5 The objection still remaining for disposition
relates to the date designated by the Regional Director for
holding the election . We turn to the evidence.
It is admitted that District Lodge No. 162, International
Association of Machinists and Aerospace Workers,
AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The advent of the Union; the subsequent
proceedings and events ; and issues presented
In the latter part of March 1973,4 the Union instituted a
drive to organize the Respondent's plant employees by
distributing handbills in front of the plant and soliciting
employee signatures to union authorization cards . There-
after, the Union held meetings of employees at the
Saratoga Club, which is located near the plant, and
employees began wearing union buttons while at work.
Admittedly, the Respondent was aware of these develop-
ments . Having secured a sufficient number of signed cards
from employees , the Union on April 19 filed a representa-
tion petition (Case 17-RC-7166) with the Board's regional
office. It is alleged in the complaint that, to impede the
Union's organizational efforts, Ralph Schroeder and Roger
Miller, conceded supervisors of the Respondent, and
Charles (Chuck) McWilliams, whose supervisory status is
in dispute , engaged in various unlawful acts of interfer-
ence, restraint, and coercion of employees. In addition, the
Respondent is charged with discriminatorily terminating
3 By motion attached to his brief, a copy of which was served on all the
parties, the General Counsel requests that the transcript of testimony in the
consolidated proceeding be corrected in specified respects . No opposition
having been filed, the motion is granted and the transcript is accordingly
corrected.
2. The Respondent 's alleged antiunion conduct
Only Rupe, one of the dischargees herein, and employees
Douglas Freeman and Kent Eldridge, who are still in the
Respondent's employ, furnished testimony concerning
antiunion conduct. They worked in the assembly depart-
ment in building 11,6 openly favored the Union, and wore
a union button in the plant, as did most of the other
employees in that department. Freeman credibly testified,
without contradiction, that in the early part of April, while
he was discussing a particular job with Roger Miller, the
conceded supervisor of the fabrication shop, Miller asked
him why he thought the plant should be unionized, what
could the Union do for him, and how he felt about that
organization. Freeman testified that he replied that "the
union would give us a chance to get better benefits and a
higher rate of pay." According to Freeman's further
credible and undisputed testimony, he had two or three
other similar conversations during the same month with
Miller, whom he considered to be a good friend, and
probably he (Freeman) had initiated some of these union
conversations.
About a week after Rupe was granted a wage increase on
April 16, he and some 12 or 13 other assembly department
employees were addressed in the plant by an unidentified
company official from the main office. Reading from a
paper, this individual explained to the employees what the
Company could do for them and what the Union thought
4 Unless otherwise indicated , all dates refer to 1973.
5 Objections 3 and 4 were withdrawn at the hearing and Objection 2 was
withdrawn in its brief to the Administrative Law Judge
6 In June or July, Freeman was transferred to the fabrication shop where
he has been working under the supervision of Roger Miller.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it could achieve. Thereafter, Ralph Schroeder, the then
supervisor of the assembly and engineering operations,7
invited the employees to his office to discuss their
complaints , the Union, and what the Company could
accomplish 8
Later in the day, Rupe and Eldridge availed themselves
of the invitation and went to see Schroeder in his office.
According to Rupe, the following occurred: Rupe asked
Schroeder what could the Company do for the employees.
In reply, Schroeder stated that the Company could do a lot
more than the Union. Rupe thereupon remarked that the
Company had not yet proved it to him, adding that he
thought that the Union could accomplish a lot more than
the Company was doing for the employees. He then
sharply criticized the Respondent for failing to take
measures to eliminate the gasoline fumes in the plant that
emanate from the motors being tested and cause employ-
ees headaches and make them sick. Schroeder answered
that he would see what could be done about that problems
Rupe further testified that about 2 days later he alone
returned to Schroeder's office to ascertain whether Schroe-
der had arrived at a solution to the gasoline fume problem.
When Schroeder indicated that he had not, Rupe testified,
he repeated his earlier comments that the Union could do
much more for the employees than the Company was
doing. Schroeder challenged this remark , asserting that all
the Union wanted was the employees ' money every month
and that "they" were crooks . Rupe voiced his disagreement
and declared that his brother-in-law, Dick Sturgeon, a
business representative of the Union who was involved in
the organizing activities at the plant, was not a crook. On
this note, the conversation ended.
Schroeder testified that Rupe and Eldridge came to his
office and engaged him in conversation concerning the
Union . However , all he could remember about the ensuing
conversation was that they asked him how he felt about a
union coming into the plant and that he replied that he
didn't think that the Union could be good for the
Company or the men.
Although Schroeder did not specifically contradict
Rupe 's testimony that Rupe engaged him in a follow-up
conversation , Schroeder did deny that he told Rupe that
the Union's representatives were crooks. He also denied
that Rupe informed him that Dick Sturgeon was his
brother-in-law. Schroeder further testified that the first
time he learned that Sturgeon was Rupe's relative was after
Rupe's discharge when in the middle of June or the first of
July Supervisor Roger Miller conveyed that information to
him.1o
I find that Rupe's account of his conversations with
Schroeder more complete and accurate than that given by
the other participants . I can perceive no logical reason to
7 In July, Schroeder was relieved of his supervision of the assembly
operation retaining , however, his responsibility for running the engineering
department which consists of four rank-and-file employees.
s The foregoing findings are based on Rupe's undisputed testimony.
Eldridge recalled that Rupe and he went to see Schroeder to find out
why Mr. Broyhill was opposed to the Union and that he put that question to
Schroeder but received no response. However, be was unable to remember
specific statements made by Rupe or Schroeder during this conversation.
10 Miller did not testify Although Richard N . Lott, the Respondent's
vice president and comptroller, testified that he had advised Schroeder
about Rupe 's relationship with Union Representative Sturgeon after the
disbelieve Rupe's testimony that he and Eldridge availed
themselves of Schroeder's invitation and presented to him
their grievance regarding the unhealthy gasoline fume
problem in the plant. Moreover, I find equally trustworthy
Rupe's testimony concerning his follow-up conversation in
which Schroeder informed him that the Company had not
yet found a solution to the fume problem . It appears to me
highly likely that the Company's failure to remedy the
problem would provoke Rupe to repeat his prior assertion
that the Union could do more for the employees than the
Company was doing. I find also convincing and not
beyond reasonable belief Rupe's testimony that, in
challenging Rupe's prounion comment , Schroeder im-
pugned the Union's selflessness and accused its representa-
tives of being "crooks" 11 and that Rupe , in turn, disputed
such remarks, proclaiming his family relationship with
Union Representative Sturgeon . As Rupe impressed me as
a credible witness, I accept his above testimony.
Rupe furnished the following uncontroverted testimony,
which I also credit, concerning another conversation he
had with Schroeder at a time before April 30: Schroeder
approached him in the parts storage area of building 11
and asked him if the Union had a chance , apparently
referring to success in its organizational campaign. Rupe
replied that it did. When Schroeder further inquired
whether a union meeting was held and whether "quite a
few" had attended , Rupe answered in the affirmative.
Rupe also testified to several conversations he had with
Foreman Charles McWilliams , whose alleged supervisory
authority will be later discussed . According to Rupe's
undisputed and credited testimony , at an undisclosed time
after April 16 McWilliams walked over to him while he was
working and questioned him about the Union . In answer to
McWilliams' inquiries, Rupe stated that he thought that
the Union would get in . McWilliams also asked if the
Union had "a lot of cards signed" and Rupe answered that
it had "quite a few." When McWilliams asked whether a
union meeting was held and how many employees showed
up, Rupe stated that "quite a few did ." The conversation
ended with McWilliams commenting that he wouldn't
want a union because it couldn 't do anything for him.
Rupe further credibly testified that he had "at least two
or three" other conversations with McWilliams in which
McWilliams "asked mainly" about the Union's chances of
success; "how many people were going to get in the
union"; and whether he had "quite a few" union cards
signed . Rupe also testified he gave affirmative answers to
these questions. In addition to these instances of interroga-
tion, Rupe testified that on one occasion McWilliams told
him that "if the union ever tried to get in there, they would
close the plant down." 12 According to Rupe , the latter
Respondent 's attorney had apprised him of that fact several weeks
subsequent to Rupe's discharge, Schroeder could not remember receiving
that information from Lott.
it Schroeder admitted discussing the Union with Marvin Roethler, a
prounion employee working under his supervision in the engineering
department , and remarking to him that the Union 's representatives were
"no better than a bunch of drunks." It appears to me that Schroeder is not
beyond hyperbole.
tR Although this testimony concerning plant closure was developed after
the General Counsel prodded the witness' memory , it stands uncontradicted
BROYHILL COMPANY
remark was made 1 or 2 days after he and other employees
had distributed handbills outside the plant.
Concerning the handbilling episode, the undisputed
evidence shows that on or about April 30, at 7 a.m., an
hour before the workday started, Rupe and Macias
stationed themselves at the main gate to the plant and
employees Eldridge and Neilson at another entrance and
distributed union leaflets to employees as they reported for
work. This was the first occasion employees, as distin-
guished from union representatives , engaged in such
activity. As McWilliams was driving through the gate, he
asked Rupe what he was doing and Rupe answered that he
was passing out union handbills and McWilliams just
continued to drive on.13 Later in the plant, McWilliams
asked Eldridge what he was passing out in front of the
plant and he stated that they were union handbills.
Freeman testified that about the end of March, shortly
after the Union started its organizational drive, McWil-
liams told him that 15 years ago "the unions" tried to get
into the plant and Broyhill closed the plant. When shown
his pretrial affidavit in which he stated that McWilliams
told him that "Broyhill had shut down over the union 15
years ago ," Freeman testified that the latter statement was
true and more accurate than his oral testimony.14 Freeman
also credibly testified that, on this occasion, McWilliams
asked him how he felt about the Union and that he
answered , in effect, that he favored it because it would
obtain better benefits and a raise for the employees.
3. Rupe's employment, union activities, and
discharge
On February 1, Rupe began working for the Respondent
in the assembly department in building 11, which Ralph
Schroeder supervised. During his job interview by an
individual in the front office and subsequently by
Schroeder, to whom he was referred, Rupe was advised of
the wage rates, the voluntary nature of overtime work, and
the 30-day probationary period he was required to serve,
after which time his performance would be evaluated for
continued employment and a raise in pay. Rupe was
acceptable to Schroeder and was furnished with a blue
helmet and glasses . Schroeder then sent Rupe to McWil-
liams, who was identified as his foreman,15 to be put to
work. McWilliams explained to Rupe his job duties, which
included collecting parts, nuts , and bolts needed to
assemble the agricultural sprayers the Respondent pro-
duced, and showed him the location of stock. During the
entire period of his employment, Rupe worked directly
under McWilliams from whom he received his job
assignments and took orders. If parts were out of stock,
and I credit it. As later indicated, McWilliams made a similar statement to
employee Freeman
13 Foreman Lee Carter also drove through this gate without taking a
handbill.
14 The Respondent's Vice President Lott testified that about 15 years ago
a strike was called by the Iron Workers Union, which had then represented
the employees , but that the Company continued to operate with a limited
staff. Freeman, however, denied any knowledge of such a strike.
15 Schroeder wore a helmet bearing the legend "Supervisor," while
McWilliams and Lee Carter , another foreman in the assembly department,
wore a gray helmet with the word "Foreman" printed on it
16 Considering the Respondent 's preoccupation with filling its customers
291
Rupe reported it to Foreman Lee Carter who ordered the
items. Carter also kept records of the jobs performed by
the employees in the assembly department.
As indicated above, Rupe was a brother-in-law of Union
Representative Sturgeon , one of the organizers at the plant.
When the Union instituted its drive in the latter part of
March, Rupe signed an authorization card and undertook
to solicit signatures to cards from other employees in
building 11 usually in the morning before the start of work
and during the lunch period . Or. occasions in the
lunchroom, McWilliams and Carter were standing nearby
in a position to observe Rupe handing out cards . From the
inception of the union movement , Rupe wore in the plant a
union button, the size of a 50-cent coin, as did most of his
coworkers in the assembly department , including Freeman,
Eldridge, and Neilson, who also openly voiced prounion
sentiments . After working hours , Rupe attended union
meetings at the Saratoga Club which is located near the
plant.16 On April 30, together with employees Macias,
Eldridge , and Neilson, Rupe distributed handbills in front
of the plant. Schroeder admitted his awareness of the
union movement and meetings, the distribution of hand-
bills, the display of union buttons worn by employees, and
the union discussions engaged in by them, and, in
particular, that Rupe supported the Union, although he did
not regard Rupe as outspoken an advocate of that
organization as were Freeman, Eldridge, and Neilson. He
also admitted that he had discussed with Foreman
McWilliams the identity of employees who favored or
opposed the Union.
Rupe's 30-day probation period passed unnoticed.
Consequently , on or about April 15, Rupe called this to
Schroeder 's attention and indicated that he was due for a
raise . Schroeder acknowledged this and explained that he
had been too involved in other matters but would arrange
for a prompt review of Rupe 's job performance . The next
day, Schroeder called Rupe into his office where he and
Foreman Carter conducted the performance review which
entailed completing a form containing five rating catego-
ries-dependability, output, cooperation, adaptability, and
accuracy. As a result of this review , Rupe received a rating
of "Good" for cooperation and "Average" for the other
four items 17 and both Schroeder and Carter assured him
that he was "doing real good ." On the following day,
Schroeder informed Rupe that he would get his raise and,
according to his personnel record, Rupe was granted a 5-
cent increase on April 16.18
It is undisputed that prior to his job performance review
Rupe 's work was never criticized. In fact, McWilliams had
also told Rupe that he was doing "real good." Moreover,
there is testimony by employee Eldridge that, from his
orders during this period and his antiunion conduct , I am not persuaded by
Schroeder's testimony that he permitted Freeman , Eldridge, and Macias to
leave work a half hour earlier on May 2 to attend a union meeting.
17 The ratings prescribed in the form ranged from "Excellent," "Good,"
"Average" to "Unsatisfactory ." According to Schroeder's uncontradicted
testimony, which I credit, Rupe wore his union button at the time of his job
performance review.
is Schroeder testified that he recommended only a 5-cent increase
because Rupe was "a little bit below average." However, as indicated above,
neither the rating Rupe received nor the accompanying remarks of
Schroeder and Carter substantiate this testimony.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observation , Rupe worked as fast as other employees.
However, subsequent to Rupe 's receiving his wage increase
and within a 2 1/2-week period before his discharge,
McWilliams and Schroeder found fault with Rupe's
performance . Specificially on one occasion before April 30,
McWilliams reprimanded Rupe for working too slowly. At
that time , Rupe was pulling parts for a sprayer unit when
he found that certain items were out of stock and requested
Carter to order them . Rupe denied that he was working
slowly and told McWilliams that the parts shortage caused
the delay in finishing that assignment . On another occasion
before April 30,19 while Rupe was gathering parts for
another sprayer unit , employee Eldridge requested him to
help with an assembly job which required assistance. Rupe
stopped his own work to help Eldridge. Although it was the
practice in the plant for employees to cooperate with each
other in this manner when necessary, McWilliams ordered
Rupe not to help Eldridge or anybody else. It appears that
this plant practice has continued notwithstanding McWil-
liams' reprimand of Rupe.20
On May 1, 2, and 3 Schroeder criticized Rupe assertedly
for not completing work assignments in time and placed
separate written reports to this effect in Rupe 's personnel
file 21 Concerning the May 1 incident , Rupe and Macias
were packing three booms for shipment. When Schroeder
learned from McWilliams and Carter that the booms were
not ready for shipment as they should have been, he spoke
to Rupe and Macias, told them it was taking them too long
to do that job, and asked why they had not yet finished the
assignment. Rupe answered that they were busy working as
fast as they could. Although Schroeder sought to ascertain
from Rupe and Macias the problem causing the delay, no
reason was forthcoming.22
On May 2, Schroeder23 reprimanded Rupe for the
alleged reason that he was slow in pulling parts for a unit
ordered by a customer. According to Schroeder, on this
occasion Rupe had collected less than half of the required
parts in the time that Schroeder believed Rupe should have
finished the entire job. In reply to Schroeder's question
why it was taking him so long, Rupe stated he was working
as hard and fast as he could.
The final incident occurred on Thursday, May 3, and
culminated in Rupe 's discharge before the close of the
workday under the following circumstances: After report-
ing for work , Rupe assembled a unit and then proceeded to
draw parts from stock for another job. About 3 p.m.,
McWilliams approached Rupe and stated that he was not
working fast enough gathering up parts . Rupe disagreed
and McWilliams went to Schroeder's office. Later Schroe-
der came over to Rupe to make the comment that his
performance was not good and then returned to his office.
About 4 p.m., McWilliams sent Rupe to Schroeder's office
19 Although Rupe testified that this incident occurred before April 30,
Eldridge testified that he thought it happened in early May.
20 In addition to the above incidents , Rupe , Neilson, Freeman, and
Eldridge were reprimanded for the unauthorized use of a company vehicle
on company premises on April 23. Reports of this reprimand were placed in
their personnel files.
21 No written reports of McWilliams ' earlier reprimands of Rupe were
placed in the latter's personnel file
22 A written report similar to that placed in Rupe's personnel file was put
in Macias'file.
23 Rupe testified that it was McWilliams who had reprimanded him and
where Schroeder informed Rupe that he had to let him go
and to turn in his assigned equipment . When asked for the
reason, Schroeder answered that Rupe was not working
fast enough and the Company could not put up with it any
longer. Rupe retorted that, if he were not doing his job,
why had he been given a raise . Schroeder adhered to his
decision, asserting that he had been watching Rupe's
performance for 2 weeks and it was not satisfactory. Rupe
again questioned the discharge and Schroeder asked
whether Rupe wanted to quit . Receiving a negative answer,
Schroeder repeated that Rupe was fired. Rupe then handed
in his equipment and immediately left the plant when
Schroeder told him that it was not necessary for him to
remain until the end of the workday.24
Although the regular workweek ended on a Friday,
Schroeder testified that he effected Rupe 's termination on
Thursday 25 because he did not believe that waiting would
improve the situation any. He also conceded that the
discharge action was taken "right in the middle of the busy
season" when the Company was behind in filling its orders
and he was under pressure from company officials and
customers to ship them.26
To demonstrate that other employees had been separated
in the past for the same reason as was Rupe, Schroeder
testified to the discharge in January of six part-time college
students on account of their slow performance. However,
Schroeder further testified, that, despite their inadequacy,
he retained these employees a week after he had made his
decision to discharge them because he needed to get the
work out. He also testified that he had no explanation for
not similarly retaining Rupe to help fill the orders until the
busy season ended. In addition to those discharges,
Schroeder testified that in April he had terminated an
employee before the end of his probationary period
because of poor performance and in June he permitted
another unsatisfactory employee to quit rather than be
discharged at the completion of his probationary period.
Finally, Schroeder denied that Rupe's union activities or
sympathies played any part in his decision to terminate
him.
4. Macia employment, union activity, and
discharge
On March 21, Macias was employed to work in the
assembly department. On that date, Supervisor Schroeder
introduced him to McWilliams as his foreman who would
show him around the assembly area, explain his job, and
make his work assignments . On March 30, Macias signed a
union authorization card which he obtained from Rupe in
the lunchroom while McWilliams was looking in his
direction. As indicated above, on April 30 Macias and
that he did not recall that it was Schroeder. Whether or not McWilliams
also reprimanded him, I am persuaded that Schroeder did on the occasion
in question
24 The findings concerning the events of May 1, 2, and 3 are based on
credible portions of the combined testimony of Rupe and Schroeder which I
find are not significantly in dispute.
25 Thursday afternoon was the regular payday.
26 Schroeder further testified that February through May is the
Company's busy season and that if orders were not shipped by the middle
of May, the customers would probably cancel them because at would be too
late to utilize the spraying equipment this year.
BROYHILL COMPANY 293
Rupe stationed themselves at the main plant gate where
they passed out handbills to employees as they came to
work. Schroeder testified that he observed this activity.
Probably a few days before April 30,27 Macias under-
went the same job performance review as Rupe did earlier.
Schroeder summoned Macias to his office and, with
Foreman Carter's participation , conducted the review.
Macias was rated on the Company's official form "Good"
for dependability and cooperation and "Average" for
output, adaptability, and accuracy and was informed by
Schroeder that he was doing a good job and to keep it up.
Schroeder testified that he considered Macias' perform-
ance "a little better" than Rupe's and secured a 5-cent
hourly wage increase for him, as he had done for Rupe.28
On May 4, Macias was terminated after the following
sequence of events: On April 30, Carter requested Macias,
as well as the other employees in the assembly department,
to work an hour overtime each day that week because the
plant was behind schedule . Macias agreed29 and worked
an hour overtime that day, leaving the plant at 5:30 p.m.
As previously discussed in connection with Rupe's
discharge, he and Macias were reprimanded by McWil-
liams and Schroeder on May 1 for slow performance30
This was the only time Macias ' work was ever criticized.
On this day, Macias left the plant at 4:30 p.m. without
working any overtime or directly notifying supervision. On
May 2, Macias punched out about 5:15 p.m. after he had
put in approximately 3/4 of an hour overtime. Earlier that
day Schroeder had permitted Macias to leave the plant for
several minutes to secure auto license plates . On the next
day, May 3, Macias punched out at 5 p.m. before
completing a full hour overtime. However, he credibly
testified , without contradiction, that on two of the
foregoing occasions McWilliams was at the door and saw
him leave but made no comment regarding his departure.
Earlier in the day, McWilliams told Macias that he "was
doing a good job and keep it up, and not to let any outside
interference get in . . . [his] mind and . . . [he] would get
... [his] money."
There is also uncontroverted testimony by Schroeder,
which is credited, that after Macias' departure Carter
reported to him that Macias came to him and said he was
leaving and that before he (Carter) could say anything,
Macias was gone. Schroeder thereupon pulled Macias'
timecard from the rack.
The next morning Macias arrived at the plant at the
usual time . When he found his timecard missing from the
rack, Macias asked McWilliams about it. McWilliams
SIT Schroeder testified that since Macias ' personnel record showed that he
was granted a 5-cent raise on April 30, the job performance review must
have taken place on an earlier date.
u Macias was unaware of the increase and never received it because of
his termination on May 4.
so On previous occasions , Macias and other employees were offered
overtime which they declined without being disciplined. There is no
question that the Respondent 's overtime policy has been a voluntary one
with the employees being under no obligation to accept offered overtime.
ao Macias testified that he did not work slower on thisjob than he did on
other assigned jobs. However, he admitted that he did not say anything in
response to the criticism.
Si The foregoing findings reflect the substantially undisputed testimony
of Macias and Schroeder.
32 According to Schroeder's testimony, Broyhill had learned that
employee Eldridge had made certain remarks in the plant that he did not
responded that Schroeder would speak to him later
concerning that matter . Thereafter, Schroeder called
Macias into his office and questioned him about his early
departure the day before which Schroeder declared
revealed to him that he didn't care for his job . Macias
disputed it, asserting, in effect, that he didn't realize he was
required to work overtime . Schroeder , nevertheless, asked
Macias whether he wanted to sign a quit slip . Macias
refused for the stated reason that he had not quit . At this
point , Schroeder discharged him.31
Schroeder conceded that he had never previously warned
Macias against leaving the plant early . However, he
testified , he was not inclined to give Macias another
chance because he was not impressed with an employee
who walked off a job without working the hour overtime he
had previously agreed to do. Moreover, to justify his
action, Schroeder testified to a suggestion he had received
on May 3 from President Broyhill that, if he had a problem
with employees refusing to work overtime, to replace
them.32 Finally , Schroeder specifically denied that Macias'
April 30 handbill distribution motivated his discharge
decision.
5. McWilliams' supervisory status
The Respondent disavows responsibility for McWil-
liams' antiunion conduct related above on the ground,
among others, that he was not a supervisory employee.33
The relevant evidence, developed in the representation 34
and complaint hearings , are as follows : At the time of the
significant events herein Supervisor Schroeder was in
charge of the assembly department, which employed 12 to
15 employees, and of the adjacent engineering department
whose rank-and-file complement consisted of 4 employees.
Assisting Schroeder in the assembly department were
McWilliams and Lee Carter.35 Schroeder testified that
Carter was his number two man and an assembly line
foreman to whom he would issue directions and that
Carter and McWilliams, another assembly line foreman,
would then jointly arrange the work schedule, determining
the particular assignment for each employee. It was
McWilliams' responsibility-and apparently Carter's, too
-to see that the employees' jobs were properly and
diligently performed and to give employees other work
upon completion of their assigned tasks . As part of their
duties, McWilliams and Carter also assembled equipment
intend to work overtime , regardless of consequences , and for this reason
Broyhill made the above suggestion to Schroeder.
as The same issue of supervisory authority is presented in connection
with McWilliams' eligibility to vote in the representation election which will
be considered below
34 At the consolidated hearing, the parties were informed that, in
addition to taking testimony regarding McWilliams' alleged supervisory
authority, I would take official notice of Vice President Lott's testimony
given in the representation hearing on behalf the Respondent concerning
the status of McWilliams , Lee Carter, James Stovall , and Laverle Miller
therein described as leadmen and that cross -examination would be
permitted with respect to such previously adduced testimony.
35 It appears that in August McWilliams was transferred to the shipping
department and that Carter left the Respondent's employ before the
representation election.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the latter, however, devoting most of his time to
necessary paperwork.36 When Rupe and Macias were first
hired, Schroeder sent them to McWilliams whom he
identified as their foreman and from whom they would
learn about their job and receive their assignments. Indeed,
McWilliams and Carter wore gray helmets with the
designation "Foreman" imprinted on them, while Schroe-
der's bore the designation "Supervisor." There is evidence
that, in overseeing the work of Rupe, Macias, and
employee Eldridge, McWilliams on occasions criticized
and reprimanded them for their performance and, in the
case of Rupe and Macias, as discussed above, he also
reported them to Schroeder who then talked to them about
their performance and subsequently placed adverse reports
in their personnel files.
Like rank-and-file employees, McWilliams, as well as
Carter, was hourly paid, received time and a half for work
over 40 hours a week, and punched a timeclock. However,
his hourly rate was higher than that of the employees he
directed but less than Carter's. It appears that McWilliams
and Carter did not possess the authority to hire, fire,37
grant time off, reward, or discipline employees; nor does
the record clearly demonstrate that they had the power to
make effective recommendations in those respects. Neither
McWilliams nor Carter attended management meetings
where important business matters and problems were
discussed. According to the testimony of Richard N. Lott,
the Respondent's vice president, McWilliams and Carter
were simply more experienced employees with certain skills
but without supervisory authority and belonged in the
classification of working foreman or leadman which was
established as a result of a 1957 collective-bargaining
contract between the Company and an Iron Workers
Union.38
In view of the foregoing, I find that, although McWil-
liams did not possess the authority to affect the employ-
ment status of employees, he did at all material times
responsibly direct assembly employees in more than
routine fashion, and that, in performing this function, he
exercised independent judgment sufficient to bring him
within the statutory definition of supervisory employee.39
In any event, even if McWilliams were not a supervisor
within the strict meaning of the Act, the record establishes
that the Respondent placed him in a position where
employees, and particularly Rupe and Macias, could
reasonably believe that he spoke on behalf of management
and, therefore, I find that his acts are imputable to it,40
whether or not these acts "were actually authorized or
subsequently ratified." 41
36 As indicated previously, Carter ordered needed materials, kept records
of assigned jobs, and participated in the job performance review of Rupe
and Macias
37 I am not persuaded by employee Freeman's testimony that McWil-
liams' termination of an unidentified individual about a year or so prior to
the hearing was the result of McWilliams' decision or recommendation
38 It appears that this labor organization disappeared from the scene in
1958.
39 Sec. 2(11) of the Act defines the term "supervisor" as meaning
. any individual having authority, in the interest of the employer,
to hire, transfer , suspend , lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or
B. Concluding Findings
1. With respect to interference, restraint, and
coercion
It has been found above that Supervisor Roger Miller
questioned employee Freeman concerning the need for a
union in the plant and his union sympathies. It has also
been found that, with the manifest purpose of discouraging
employees from supporting the Union, Supervisor Schroe-
der invited employees to his office to discuss their
complaints, the Union, and what the Company could do
for them; that when employee Rupe and Eldridge availed
themselves of the invitation and went to Schroeder's office,
Schroeder told them that the Company could do more for
the employees than the Union could do and that he would
look into a complaint which Rupe had presented on this
occasion regarding gasoline fumes in the plant; and that on
another occasion Schroeder questioned Rupe concerning
the prospects of success of the Union's organizational
campaign and whether a union meeting had been held and
the extent of employee attendance. Regarding Foreman
McWilliams conduct,42 I have found that in several
conversations with Rupe McWilliams made inquiries
concerning the Union, its prospects of success, whether it
had secured "a lot of signed cards," whether a union
meeting had been held, and the number of employees who
had attended and were interested in the organization. In
addition, I have found that McWilliams warned Rupe that
the Company would close its plant if the Union succeeded
in organizing it and, in a similar vein, McWilliams told
Freeman that the Company had shut down the plant 15
years ago on account of a union and then asked Freeman
for his opinion of the campaigning union . Finally, it has
been found that, while Rupe was distributing handbills
outside the plant, McWilliams inquired what he was doing
and later in the plant asked employee Eldridge, who had
also participated in the distribution, what he had passed
out.
I find that the foregoing interrogation of employees by
the Respondent's supervisors without any demonstrated
legitimate reason or assurances to employees against
reprisals; the solicitation of employee complaints and
grievances which the Company would try to remedy; and
the threat of plant closure reveal a course of conduct which
necessarily interfered with, restrained, and coerced em-
ployees in the exercise of their self-organizational rights in
violation of Section 8(axl) of the Act. However, I find
Schroeder's characterization of union representatives as
crooks to be a privileged expression of opinion which the
Act does not prohibit. Furthermore, except as found
to adjust their grievances , or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent
judgment
4o international Association of Machinists (Seasick Corp.) v. N.L.RB., 311
U.S. 72, 80; N LR B v. Dayton Motels, Inc, d/b/a Holiday Inn of Dayton,
474 F.2d 328, 330-331 (C A. 6, 1973)
41 Sec 2(13) of the Act
42 it is noted that McWilliams ' antiunion conduct occurred prior to the
May 17 representation hearing where the question of his supervisory
authority was first raised.
BROYHILL COMPANY 295
above, I find unsubstantiated other acts of interference,
restraint, and coercion alleged in the complaint . Accord-
ingly, dismissal of the relevant paragraphs of the complaint
is recommended.
2. With respect to Rupe's discharge
The General Counsel contends that Rupe was dis-
charged because of his protected union activities and
sympathies. Denying that it was so motivated, the
Respondent insists that it was Rupe's slow performance
that brought about his termination.
The question whether an employee was illegally termi-
nated because of his union support or other concerted
activities is not susceptible of easy determination as it
involves an inquiry into an employer's state of mind. In
resolving this question, therefore, all the facts and
circumstances surrounding the separation must be careful-
ly appraised with due recognition being accorded to the
settled principle that an employer may terminate an
employee for any reason, good, bad, or indifferent,
provided he is not motivated by the employee's union or
other concerted activities. Of course, it is equally well
settled that the existence of a "justifiable ground for
dismissal is no defense if it is a pretext and not the moving
cause." 43
From a careful analysis of the record, I find that the
evidence establishes that Rupe's discharge was prompted
by his union activities and not by the reason advanced by
the Respondent. Without repeating the previously dis-
cussed details, it is clear that Rupe was terminated on May
3 by Supervisor Schroeder, who admittedly was well aware
of his union advocacy, only 2 1/2 weeks after Schroeder
had rated him to be a satisfactory employee and granted
him a 5-cent hourly wage increase following the comple-
tion of his probationary period.44 Moreover, the separation
was effected without any prior warning to Rupe that he
risked discharge if his performance did not improve and
occurred at the peak of its season when it was desperate to
fill and ship its customers' orders. Indeed, Schroeder
testified that, if the orders were not shipped by the middle
of May, the Respondent's customers would probably
cancel the orders because delivery after that date would be
too late for them to utilize the ordered spray equipment.
Viewed in this context and against the background of the
Respondent's opposition to the Union's organizational
efforts, Rupe's sudden discharge, coming as it did before
the end of the workweek, supports the inference that it was
motivated by Rupe's union advocacy rather than by his
purportedly slow performance. Reinforcing this inference
of discrimination is the fact that the Respondent did not
retain Rupe to help with the completion of customer orders
at least until the end of the busy season which was
expected to last only a few weeks more, especially since it
was highly unlikely that a replacement could be obtained
who would possess the experience in the job which Rupe
had already acquired. Significantly, no legitimate business
reason was shown to justify the Company's precipitate
action in getting rid of Rupe. Moreover, the Respondent's
failure to retain Rupe is even more astonishing since in the
preceding January, just before the beginning of the busy
season, the Respondent deferred for 1 week the discharge
of a crew of part-time college students , despite their slow
performance , because, as Schroeder testified, it was
necessary for him to get the work out. At the hearing,
Schroeder was unable to give a reason why Rupe was not
accorded the same treatment 45
The Respondent argues, however, that since Schroeder
was aware that Rupe was a union adherent at the time of
his job performance review, if Schroeder were discrimina-
torily minded , he would have terminated Rupe at that time
instead of giving him a satisfactory rating and a wage
increase . While this may be a factor militating against a
finding of discrimination under other circumstances, it
does not preclude such a finding here . As previously
shown, following the performance review the Union filed a
representation petition and the Respondent promptly
undertook to make known to its employees its opposition
to the Union . In addition , Schroeder invited the employees
in his department to come to his office to discuss their
complaints and the Union and to learn what the Company
could do for them. Thereafter, when Rupe and Eldridge
availed themselves of Schroeder's invitation , Schroeder
informed them that the Company could do more for the
employees than the Union could do and accepted Rupe's
complaint about gasoline fumes in the plant for considera-
tion. When Rupe returned 2 days later and was advised by
Schroeder that the gasoline fume problem was not yet
remedied , an argument ensued between them in which
Rupe declared that the Union would do much more for the
employees than the Company would do. Schroeder
disagreed , accusing union representatives with being
crooks. Rupe challenged the latter remark and informed
Schroeder that he was the brother-in-law of Union
Representative Sturgeon , one of the organizers at the plant.
On a subsequent occasion, Schroeder questioned Rupe
about the Union's prospects of success in its organizational
campaign and the extent of employee attendance at a
union meeting, as did Foreman McWilliams who, among
other things, also separately warned Rupe and employee
Freeman of the possibility of plant closure if the Union
organized the plant. The foregoing evidence of intervening
events demonstrates the displeasure with which the
Respondent received the progress the Union was making
in its organizational campaign and lends further support to
the inference of discrimination underlying Rupe's dis-
charge . In these circumstances, it also appears to be more
than an odd coincidence that, while Rupe was never
criticized for unsatisfactory work before his performance
review but, on the contrary, was complimented, he should
thereafter be reprimanded by Schroeder and McWilliams.
Indeed, on one occasion , he was even reprimanded by
McWilliams for helping another employee in assembling a
unit, although it was the established practice for employees
to furnish such assistance to each other. Casting further
43 N.L.R B v Solo Cup Company, 237 F.2d 521, 525 (C.A 8, 1956 ). 45 It is also noted that the college student employees , although slow
44 As indicated previously, one employee was discharged and another workers , were kept in the Company 's employ for approximately 4 months
was given the option to qwt before the end of their probationary period before their discharge , which was about 2 months longer than Rupe's
because of their unsatisfactory performance tenure.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubt on the Respondent's motives, is the fact that
Schroeder's criticism of Rupe's work began a day after he
had participated with Macias and two other employees46
in the distribution of handbills to fellow employees outside
the plant.
In sum, I find that Rupe's purported slow performance
is, at best, a pretext designed to hide the Respondent's true
motivation to discourage union membership and interest
among the employees . The fact that others at least equally
active on behalf of the Union were not terminated does not
establish, as the Respondent seems to suggest, that
discrimination was not practiced against Rupe . Obviously,
an employer is not required to discharge all union activists
before being found in violation of the Act. Accordingly, I
conclude that Rupe was discharged on May 3 in reprisal
for his union sympathies and activities and that such
conduct necessarily discouraged union membership in
violation of Section 8(aX3) of the Act and interfered with,
restrained, and coerced employees in the exercise of their
rights in violation of Section 8(axl) of the Act. Even were
it assumed that Rupe's slow performance entered into the
Respondent 's decision to terminate him, I find that his
protected union activities were a substantial cause of his
discharge and that the same statutory provisions were
therefore violated.47
3. With respect to Macias ' discharge
I find that Macias' discharge was also discriminatorily
motivated . The Respondent argues, however, that it was
Macias' departure from the plant on May 3 before
finishing a full hour overtime, as he had previously agreed
to do , that caused his termination the following morning,
and not his union support , as the General Counsel alleges.
It is true that on April 30 Macias had agreed to work an
hour overtime every day during that week and that on May
3 he nevertheless left the plant about 5 p.m., after working
a half hour overtime . However, according to Supervisor
Schroeder , who made the discharge decision, he was
informed by Foreman Carter that Macias had told him he
was leaving at that time but that Carter said nothing to
Macias to the effect that he was required to remain, much
less, that he risked discharge if he left . It appears to me that
the reason Macias left early was that he was under the
impression that, although he had agreed to work an hour
overtime , it was not mandatory that he do so. This is
precisely what Macias indicated to Schroeder at the time of
his termination . Indeed, this belief was not entirely baseless
for not only was it the Company's general policy that
overtime was to be a matter of personal choice , but when
Macias clocked out on May I at 4 : 30 p.m . without
performing any overtime work at all and on May 2 at 5:15
p.m., about 15 minutes before completing an hour
overtime, Foreman McWilliams observed his departure
but nevertheless did not stop or caution him against
leaving. In these circumstances, Macias' discharge without
any prior warning that he was subject to termination for
not working a full hour overtime seems to suggest that the
Respondent had suddenly become more concerned with
finding an excuse to get rid of Macias rather than with
obtaining as much production from him as possible, which
the Company's needs demanded. Probably, Macias'
distribution of handbills together with Rupe at the main
plant gate on April 30 might well have been the source of
the Respondents concern . When to this is added the fact
that Macias was a capable employee who only a few days
earlier had received a satisfactory rating from Schroeder at
the end of his probation period and a wage increase; the
fact that, although Schroeder was under great pressure to
meet customers demands for delivery of their orders before
the middle of May, he saw no necessity to defer the
discharge; the fact that Schroeder was concededly aware of
Macias' union sympathies and activities , which included
his distribution of union handbills; and the fact that the
Respondent was undeniably opposed to the unionization
of its plant, the discriminatory motivation underlying
Macias' discharge becomes more apparent . Further sup-
porting such a finding is McWilliams ' cautionary remark
to Macias on May 3, when praising him for the good job he
was doing,48 that he should not allow any "outside
interference" with his work, apparently alluding to the
union movement.
In short, I find that the reason assigned by the
Respondent for the discharge of Macias is, as in the case of
Rupe, but a pretext designed to cloak its true antiunion
motivation. Accordingly, I conclude that the Respondent
discriminated against Macias in violation of Section 8(aX3)
and (1) of the Act. Moreover, assuming that Macias'
failure to work a full hour overtime did play a part in the
discharge decision , I reach the same conclusion because I
find that Macias' union sympathies and support would still
be a substantial cause of the termination.4e
IV. THE REMEDY
Pursuant to Section 10(c) of the Act , as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Respondent unlawfully
discharge employees Rupe and Macias because of their
protected union activities . To remedy these violations, it is
recommended that the Respondent offer Rupe and Macias
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them by payment to each of them of
a sum of money equal to that which each one normally
would have earned from the date of his discharge to the
date of the offer of reinstatement, less his net earnings
during the said period. Backpay shall be computed with
16 Previously, only union representatives distributed union literature . Schroeder told him and Rupe they were packing three booms too slowly.
47 J. P. Stevens & Co., Inc. v. N.LR.B., 380 F.2d 292,300 (C.A. 2, 1967), Admittedly, this incident did not enter into Schroeder's decision to
cert. denied 389 U.S. 1005 (1967); N.LLB. v. Jamestown Sterling Corp., 211 discharge Macias.
F.2d 725, 726 (C.A. 2). as J. P. Stevens and Jamestown Sterling, supra
48 The only time Macias was criticized for his work was on May 1 when
BROYHILL COMPANY
interest on a quarterly basis in the manner prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716. To
facilitate the computation , as well as to clarify the named
employees ' right to reinstatement, the Respondent shall
make available to the Board , upon request, payroll and
other records necessary and appropriate for such purposes.
The posting of a notice is also recommended.
In view of the nature of the discrimination for union
support and sympathies which "goes to the very heart of
the Act," 50 there exists the danger of the commission by
the Respondent of other unfair labor practices proscribed
by the Act. Accordingly, I recommend that the Respon-
dent be ordered to cease and desist from in any other
manner infringing upon the rights guaranteed employees in
Section 7 of the Act.51
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Donald L. Rupe and Roy H. Macias to
discourage membership in, and activities on behalf of the
Union, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct; by inviting employees to
submit their complaints and grievances to it which it
offered to consider for correction, for the purpose of
discouraging their support of the Union; by questioning
employees concerning the need for a union in the plant,
their union sympathies , the prospects of success of the
Union's organizational efforts, the extent of attendance at
such meetings , the number of employees who were
interested in the Union and had signed union authorization
cards, and the distribution of union handbills; and by
threatening plant closure if the Union succeeded in
organizing the employees , the Respondent interfered with,
restrained, and coerced employees in the exercise of their
statutory rights within the meaning of Section 8(a)(l) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not engage in conduct in
violation of Section 8(a)(1) of the Act other than in the
respects found above.
so N L R B v Entwistle Mfg. Co., 120 F.2d 532, 536 (C A. 4).
51 N L.R.B v. Express Publishing Company, 312 U.S. 426, 433.
52 This objection reads, as follows:
1. To failure and refusal of the Regional Director and the Board
to schedule the election on a date when all eligible voters would have
an opportunity to participate in this question concerning representa-
tion . The Regional Director held that seasonal employees (college
V. THE REPRESENTATION PROCEEDING
297
A. The Objections to the Election
As indicated above, the Respondent withdrew three of
the four objections it had filed to the election which was
conducted on August 16. The one objection remaining for
resolution" relates to the date the Regional Director
designated for holding of the election . It is the Respon-
dent's contention that the Regional Director , in contraven-
tion of established Board policy, failed to schedule the
election at a date at or near the Company's first seasonal
peak following the Decision and Direction of Election,
namely, October 5, and that he thereby deprived regular
part-time employees in the appropriate unit of the
opportunity to vote . These employees , the Respondent
asserts, were principally college students whose permanent
residences were located outside the area but who normally
returned to the area and the Respondent 's employ in
September when their summer vacation ended an d school
began.
It appears to me that scheduling the date for a
representation election is a matter falling within the special
competence of the Regional Director subject , of course, to
review by the Board. From an examination of the
documents in the representation case, I find that the
Respondent in that proceeding raised the question of
deferring the election for the same reasons urged before me
and that the Regional Director in his Decision and
Direction of Election issued on June 15 , as clarified by his
Order of June 26, denied the Respondent's application. On
August 6, this ruling was sustained by the Board when it
denied the Respondent 's Request for Review on the
ground that the request raised "no substantial issues
warranting review." In these circumstances , it appears to
me that the Regional Director either inadvertently or
mistakenly included the objection in question among the
objections initially referred to me for hearing and consider-
ation . For this reason, and since I am bound by the
Board's ruling sustaining the Regional Director, I overrule
the objection.
B. The Challenged Ballots
Of the eight challenged ballots, the parties are in
agreement that the challenges to those cast by Laverle
Miller and Gerald C. Cook should be withdrawn and that
their votes should be counted . The parties also stipulated
that the challenge to the ballot of Earl McFarlin should be
sustained . It is therefore recommended that the challenges
to these three ballots be disposed of in accordance with the
parties' stipulation.
Having found above that Donald L Rupe and Roy H.
Macias were discriminatorily discharged before the elec-
tion, I find that they were eligible to vote and accordingly
students and area farmers) of the Employer would be eligible to vote.
An election, however , was directed on August 16, 1973 , a time well
within the Employer's slack season . Seasonal employees were not able
to vote and , as a result, only 50 out of 86 eligible voters cast ballots.
Approximately 42 percent of the eligible voters were precluded from
voting due to the date of the election as directed by the Regional
Director.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that the challenges to their ballots be over-
ruled and that their ballots be opened and counted. As I
have also found above that Charles McWilliams was a
supervisory employee, the challenge to his ballot should be
sustained.
This leaves for determination the challenges to the
remaining two ballots cast by James Sjovall and Jeffrey B.
Schroeder. With respect to Sjovall, the Regional Director in
his Decision and Direction of Election issued on June 15
included him in the appropriate unit as a leadman who did
not possess supervisory authority .53 In his order clarifying
and amending Decision and Direction of Election issued on
June 26 , the Regional Director made provision for the
leadmen to vote subject to challenge because an adminis-
trative investigation of the unfair labor practice charge in
the complaint case herein had "raised some doubt as to the
correctness of . . . [the inclusion of leadmen in the unit]
and the completeness of the record testimony regarding
leadmen." Consequently , the Regional Director stated that
he was making no determination regarding the supervisory
status of the named individuals . The correctness of the
Regional Director 's modification of his leadmen determi-
nation was also submitted to the Board in the Respon-
dent's Request for Review mentioned above and the Board
there also sustained the Regional Director 's amended
ruling regarding leadmen. For this reason , at least, I find,
contrary to the Respondent 's contention , that the admis-
sion of additional testimony in the instant consolidated
hearing concerning Sjovall's supervisory status was sanc-
tioned and proper.
The evidence developed at the consolidated hearing
establishes that before the scheduled election was held
Sjovall replaced Foreman McWilliams in the assembly
department when the latter was transferred out of that
department to a shipping job and that Sjovall assumed
essentially the same duties and responsibilities previously
performed by McWilliams . As I have found that McWil-
liams was a supervisor in the assembly department within
the statutory definition , I reach the same result with
respect to Sjovall. Accordingly, I recommend that the
challenge to Sjovall's ballot be sustained.
With respect to Jeffrey Schroeder, he was a high school
student who worked on a regular part-time basis in the
parts department under Supervisor Tongish.54 He is the
son of Supervisor Ralph Schroeder, mentioned earlier in
this Decision, who is neither a stockholder nor officer of
the Company. At the time of the election, Jeffrey
Schroeder was under 15 years of age and resided in his
parents' home. The Union challenged his eligibility to vote
on the ground that he was a relative of management. At the
time of the hearing, it argued additionally that he was
disqualified from voting because he was employed in
violation of the Federal Child Labor Law. I find no merit
in the Union's position.
53 In the Decision and Direction of Election, McWilliams, Lee Carter,
and Laverle Miller were also included along with Sjovall in this nonsupervi-
sory group of four leadmen. Before the election McWilliams was transferred
out of the assembly department to a shipping job and Carter left the
Company's employ. As indicated above , Miller's voting eligibility was
conceded.
54 Jeffrey Schroeder was in the Respondent 's employ from May 31 until
August 24, 1973.
It is clear that Jeffrey Schroeder is not a relative of
management as defined in Board cases. Furthermore, there
is no evidence that during his employment he enjoyed a
special status in his job which allied his interests with those
of managementS5 As for his employment allegedly in
violation of Federal law, I am aware of no Board precedent
that would justify depriving an employee in the appropri-
ate unit of his right to vote in a representation election on
that ground. As Jeffrey Schroeder was on the Company's
payroll during the eligibility period preceding the election,
I find he was entitled to vote. Accordingly, it is recom-
mended that the challenge to his ballot be overruled and
that his ballot be opened and counted.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 56
The Respondent, the Broyhill Company, Dakota City,
Nebraska, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in District Lodge No. 162,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization, by
discharging employees or in any other manner discriminat-
ing against them in regard to their hire or tenure of
employment or any term of condition of employment.
(b) Requesting employees to submit their grievances and
complaints to it and offering to remedy them for the
purpose of discouraging them from supporting a union.
(c) Coercively interrogating employees concerning the
need for a union in the plant, their union sympathies, the
prospects of success of the organizational efforts of the
above-named Union, union meetings, the extent of
attendance at such meetings, the number of employees
who were interested in the above -named Union and signed
authorization cards, and the distribution of union hand-
bills.
(d) Threatening to close the plant down if the Union
succeeded in organizing the employees.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations , to join or assist
the above-named Union, or any other labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Donald L. Rupe and Roy H. Macias,
immediate and full reinstatement to their former jobs, or if
55 Pargas of Crescent City, Inc., 194 NLRB 616; Foam Rubber City #2 of
Florida, Inc., 167 NLRB 623.
56 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations be adopted by the Board and become
its findings , conclusions, and order , and all objections thereto shall be
deemed waived for all purposes.
BROYHILL COMPANY 299
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of their
unlawful discharge, in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay
due and the right to reinstatement and employment under
the terms of this recommended Order.
(c) Post at its plant in Dakota City, Nebraska, the
attached notice marked "Appendix." 57 Copies of said
notice, on forms - provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of
Section 8(a)(1) of the Act other than those found herein.
IT IS ALSO RECOMMENDED that the objections to the
election filed by the Respondent in Case 17-RC-7166 be
overruled.
IT IS ALSO RECOMMENDED that the challenges to the
ballots cast by Laverle Miller, Gerald C. Cook, Donald L.
Rupe, Roy H. Macias, and Jeffrey B. Schroeder be
overruled and that their ballots be opened and counted;
and that the challenges to the ballots of Earl McFarlin,
Charles McWilliams, and James Sjovall be sustained.
57 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
To refrain from any or all of those activities.
WE WILL NOT discharge or lay off any employee or
otherwise discriminate against him because of his
membership in, or activities on behalf of, District
Lodge No. 162, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, or any other
labor organization.
WE WILL NOT request employees to submit their
grievances and complaints to us or offer to remedy
them for the purpose of discouraging them from
supporting a union.
WE WILL NOT coercively interrogate our employees
concerning the need for a union in the plant, their
union sympathies, the prospects of success of the
organizational efforts of the above-named Union,
union meetings, the extent of attendance at such
meetings, the number of employees who are interested
in the above-named Union and signed union authoriza-
tion cards, and the distribution of union handbills.
WE WILL NOT threaten to close the plant down if the
Union succeeded in organizing the employees.
WE WILL NOT in any other manner interfere with or
coerce employees in the exercise of their right to self-
organization, to form labor organizations, to join or
assist the above-named Union, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL offer Donald L. Rupe and Roy H. Macias
immediate and full reinstatement to their former jobs,
or if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or other rights and privileges, and make them whole
for any loss of earnings suffered by reason of their
unlawful discharge.
All of our employees are free to become, remain, or
refrain from becoming or remaining members of any labor
organization.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
Dated By
BROYHILL COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 616 -
Two Gateway Center, Fourth At State, Kansas City,
Kansas 66101, Telephone 816-374-4518.