Comet Corporation

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1414 (N.L.R.B. 1982)

DECISIONS OF NATIONAl. IABOR RELATIONS BOARD
Comet Corporation and Local 414, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and The
Shop Committee of Comet Corporation at
Albion, Indiana, Party of Interest
Comet Corporation and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW. Cases 25-
CA-8243, 25-CA-8387-1, 25-CA-8387-2, and
25-CA- 11349
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMM ERMAN
On September 28, 1981, Administrative Law
Judge Robert G. Romano issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, the General
Counsel filed cross-exceptions and a supporting
brief, and both the General Counsel and Charging
Party UAW filed answering briefs to the Respond-
ent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Comet Corpo-
ration, Albion, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
MEMBER JENKINS, dissenting in part:
The Administrative Law Judge, affirmed by the
majority, found that the General Counsel made a
prima facie showing sufficient to support the infer-
ence that the Respondent's layoff of welder Martin
McCoy was motivated by its unlawful purpose of
reaching union activists Carter and Hickman for
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Hoard's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NL RB 544 (1950), enfd 1R8 F. 2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
261 NLRB No. 188
layoff in order of seniority, McCoy being less
senior than they. The Administrative Law Judge
also observed that under Wright Line, 2 once that
prima facie case was established the burden shifted
to the Respondent to demonstrate that the same
action would have been taken even in the absence
of the unlawful reason.:' However, in analyzing the
Respondent's defense and concluding that the
prima facie case had been rebutted, the Administra-
tive Law Judge and the majority have distorted the
Wright Line test.
The Board's decision here relies first on the fact
that McCoy's union activity was no greater than
that of another laid-off welder whose layoff was
not alleged to be unlawful. But McCoy's union ac-
tivity is beside the point. The prima facie case is
grounded on the Respondent's desire to rid itself of
other employees who were union activists. McCoy
was only a pawn in the Respondent's game, and
the status of the other welder is not before us. The
Board also relies on the Respondent's showing that
it had economic grounds for some layoffs in the
plant. However, the Respondent's burden was to
establish that economic grounds alone would have
resulted in the layoff of McCoy in particular. The
state of the record is such that to cross from the
general showing to the particular requires a leap of
faith. For the most the Respondent has established,
consistent with the Administrative Law Judge's
factual findings, is an uncertainty as to whether
McCoy would have been laid off had the layoff
been shaped by purely economic considerations.
Thus, the Respondent has not established its de-
fense; it has not rebutted the prima facie showing
that the unlawful reason was at least a contributing
cause. That is where things stand from a formally
legal perspective. On equitable grounds, the situa-
tion is the familiar one in which uncertainty exists
as a result of a party's wrongdoing, in this case the
(unanimously found) unlawful scheme to manipu-
late the layoff so as to reach Carter and Hickman.
This uncertainty is not to be resolved in favor of
the wrongdoer. Accordingly, I would find that the
layoff of McCoy violated Section 8(a)(3) and (1) of
the Act.
I agree with the majority in all other respects.
I Wright Iine, a Div)iion if Wright line, Inc., 251 NILRB 1083 (1980).
:' There is some question as to whether Wright Line is applicable here.
since it provides a rule only for dual-motive cases. Here, the initial ques-
tion is whether the motivation was the Respondent's desire to be rid of
the union activ ists or the econiomic considerations justifying a layoff. But.
since there was an economic justification fior a layoff. the case may prop-
erly be treated as, at least potentially, a dual-motive case. The ultimate
determination is whether the decision to include certain employees in the
layoff was motivated solely by economic considerations or whether the
unlawful reason was at least a motivating. operative factor
1414
CO()MET CORPORATION
DECISION
STATI MiNT 01: IHI CASI
ROB ERT G. ROMANO, Administrative Law Judge:
These consolidated case proceedings were heard before
me at Albion, Indiana, on various dates in March, April,
and May 1980. The original charge in Case 25-CA-
11349 was filed on September 21. 1979,1 by International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW (herein UAW or
the Charging Party) against Comet Corporation (herein
Respondent or Employer); and a complaint thereon
issued on October 26 against Respondent, with The Shop
Committee of Comet Corporation at Albion, Indiana
(herein The Shop Committee), therein appearing as a
Party of Interest. The complaint alleged various viola-
tions of Section 8(a)(l), (2), (3), and (5). An order con-
solidating said complaint in Case 25-CA-11349 with a
reissued consolidated complaint, as amended, in Cases
25-CA-8243 and 25-CA-8387 (1-2) was issued contem-
poraneously. Respondent, by answer filed October 30,
has denied the commission of any unfair labor practices.
The original charge in Case 25-CA-8243 had been
filed against Respondent earlier on September 7, 1976, by
Local 414, International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America
(herein Teamsters Local 414); and a complaint thereon
had issued on October 27, 1976, alleging various viola-
tions of Section 8(a)(1) and (3), which by answer filed
November 23, 1976, Respondent had earlier denied. In
the interim original charges in Case 25-CA-8387 (1 2)
were filed by Teamsters L ocal 414 on October 26, 1976;
and thereafter an order consolidating cases and a consoli-
dated complaint in Cases 25-CA-8243 and 25-CA 8387
(1-2) issued on November 26, 1976, alleging various vio-
lations of Section 8(a)(l), (2), and (3) of the Act, which
by timely answer filed November 30, 1976, Respondent
again had denied. By an amendment to complaints dated
December 21, 1976, inter alia, The Shop Committee w.as
added as a Party of Interest in those earlier consolidated
proceedings. On January 28, 1977, the charge in Case
25-CA-8243 was amended to allege additional violations
of Section 8(a)(1) and (3). On February 2, 1977, an infor-
mal settlement agreement (with nonadmission clause)
was entered into by the parties2 which was approved by
the Acting Regional Director on February 9, 1977. An
order withdrawing approval of settlement agreement and
reissuing of the consolidated complaint as amended in
Cases 25-CA-8243 and 25-CA-8387 (1-2) issued on Oc-
tober 26, 1979. By amendment to complaint in Case 25-
CA- 11349 dated February 12, 1980, further allegations of
violation of Section 8(a)(1) and (2) were added; and by
second amendment to consolidated complaint in Cases
25-CA-8243 and 25-CA-8387 (1-2) which also issued on
February 12, 1980, inter alia, further allegations of con-
duct violative of Section 8(a)(2) were added; and specific
grounds were alleged upon which the settlement agree-
ment was being vacated and set aside. By answers filed
I All dates are in 1979 unless otherwise stated
2 t11 is not clear of record whether The Shop Committee as Party of
Interest was signatory to the settlement agreement
respectively thereto on February 18, 1980, Respondent
has denied the commission of any unfair labor practices.
On March 7, 1980, counsels for the General Counsel and
Respondent entered a stipulation in substance and effect
reinstating the terms of the prior settlement agreement in
Cases 25-CA-8243 and 25-CA-8387 (1-2) with regard to
all allegations of Section 8(a)(3) and (1), saving only as
to matters relating to allegations of alleged violation of
Section 8(a)(l) and (2) in regard to The Shop Commit-
tee. Teamsters Local 414 has not participated in the in-
stant proceedings.
Upon the entire record,: including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel on August
25, by Respondent on August 13, and by Charging Parts
UAW on August 25, 1980, I make the following:
FINI)IN(GS OF FACT
I. JIURISt)ICTION
Jurisdiction is not in issue. The Employer, a State of
Washington corporation, has a principal office and place
of business in Spokane, Washington, and a facility at
Albion, Indiana, where it is engaged in the manufacture,
sale, and distribution of semi-truck trailers, van bodies,
and related products. Only the Respondent's Albion ft-
cility is involved herein. The various complaints allege,
and Respondent by Answer, admissions and Stipulations
has conceded, and I find that during all material times
that Respondent was an Employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
On the basis of the record evidence before me I as readi-
ly conclude and find that Teamsters Local 414 and
UAW, during all times material herein were labor orga-
nizations within the meaning of Section 2(5) of the Act.
The complaints allegation of labor organization status of
The Shop Committee, as to which Respondent by
answer has plead insufficient knowledge, and thus effec-
tively has denied, but in brief would affirm as of 1978, is
considered infra.
II. tHIt AI.I.I(itl) UNFAIR .ABOR PRA('IICILS
A preliminary scan of the issues:
The issues presented by complaint in Case 25-CA-
11349, as amended, appear to be:
1. Whether Respondent has unlawfully interrogated its
employees as to their own union membership, activities,
and desires, and as to that of other employees, in viola-
tion of Section 8(a)(1) of the Act by the conduct of its
agent Rayford T. Blankenship at its facility in late July
or early August.'
2. Whether Respondent, in violation of Section 8(a)(1)
of the Act, has discriminatorily published in August and
thereafter maintained and enforced certain employee
rules of conduct; and whether certain specific such rules
1 T'he General Counsel's unopposed motion to correct the record filed
August 25, I98), is granted.
4 An additional allegation of interrogation by supcrs sor and agent Bon
Tucker at Respondent's facility in early August was withdrawn hy the
General Counsel
1415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
independently constituted unlawfully broad no-solicita-
tion, no-distribution, and no-access rules in violation of
Section 8(a)(1), viz: (a) its published rule prohibiting "So-
liciting, collecting contributions or distribution of litera-
ture, written or printed matter of any description on
Company premises without specific Company authoriza-
tion"; and (b) its published rule prohibiting "Unauthor-
ized entry into Company property."
3. Whether Respondent's truckdrivers (4) should be
excluded, as is urged by the General Counsel and UAW,
or should be included as is urged by Respondent, in an
appropriate unit of employees otherwise agreed by the
parties to exist for purposes of collective bargaining con-
sisting of:
All regular full-time and all regular part-time pro-
duction and maintenance employees of the Employ-
er at its Albion, Indiana, facility; but excluding all
office clerical employees, all salesmen, all profes-
sional employees, all guards and supervisors as de-
fined in the Act;
and in connection with the composition of said unit
whether the unit would also include K. Wogoman and
R. Winebrenner, initially hired as temporary summer stu-
dents.
4. Whether as of August 16 a majority of the employ-
ees in the aforesaid unit as may be determined appropri-
ate herein have validly designated the UAW as their col-
lective-bargaining representative; and whether, upon re-
quest, Respondent has refused to recognize and bargain
with UAW in violation of Section 8(a)(5) and (1) of the
Act; and whether in thereafter unilaterally publishing the
aforesaid employee rules of conduct Respondent has in-
dependently violated Section 8(a)(5) and (1) of the Act.
5. Whether Respondent on August 31 has discrimina-
torily indefinitely laid off, discharged, and refused to re-
instate its employees Gregory Carter, Hugh Hickman,
and Martin McCoy in violation of Section 8(a)( 3) and (1)
of the Act.
6. Whether commencing on an unknown date in
August anid continuing to date Respondent has recog-
nized and bargained with The Shop Committee as the
exclusive bargaining representative of its production and
maintenance employees in matters pertaining to, inter
alia, safety, compensation, employee benefits and disci-
plinary procedure, notwithstanding that The Shop Com-
mittee has not represented the uncoerced majority of the
production and maintenance employees, and has not re-
quested such recognition; and further, notwithstanding
that a real question concerning representation then exist-
ed; and whether Respondent on September 17 urged and
permitted The Shop Committee to solicit signed authori-
zations from Respondent's employees at its facility on
working time; all in violation of Section 8(a)(2) and (1)
of the Act.
7. Additional issues presented by the instant consoli-
dated proceedings are whether the informal settlement
agreement of February 9, 1977, reached in earlier consol-
idated complaint proceedings in Cases 25-CA-8243 and
25-CA-8387 (1-2) has been appropriately vacated and
set aside by virtue of the certain conduct alleged in suc-
ceeding paragraph 9, and/or by virtue of all of the above
conduct.
8. Whether as therein, and now remainingly alleged,
Respondent has heretofore violated Section 8(a)(2) and
(I) of the Act by the certain conduct of its supervisor
and agent (former) Plant Manager Gordon Blake Ross,5
in initiating, forming, sponsoring, and promoting The
Shop Committee at Respondent's Albion facility; in
thereafter rendering aid, assistance, and support to it; and
in interfering with the operation and administration of
The Shop Committee by:
(a) The alleged specific conduct of Plant Manager
Ross on May 10, 1976, with the advent of, and again on
July 20, 1976, with the renewal of, Teamsters Local 414
organizational effort, in sponsoring and urging employees
to choose The Shop Committee as their bargaining
agent;
(b) Permitting and urging The Shop Committee to
conduct meetings at Respondent's Albion facility during
work on July 20 and 21, 1976, and by paying employees
for their attendance thereat;
(c) The alleged conduct of Plant Manager Ross, of
Shop Supervisor Robert Hasserd, and of Shop Foreman
Ronald Huck in attending and participating in the meet-
ings of The Shop Committee; and,
(d) Since May 10, 1976, recognizing and meeting with
The Shop Committee for purposes of collective bargain-
ing; and
9. Whether, as now alleged by February 12, 1980,
amendment to said earlier consolidated complaint pro-
ceedings in Cases 25-CA-8243 and 25-CA-8387 (1-2),
Respondent has further violated Section 8(a)(2) and (1)
of the Act:
(a) By supervisor and agent Plant Manager Hays, in
September 1978, sponsoring and urging Respondent's
employees to choose The Shop Committee as their col-
lective-bargaining representative in regard to safety and
discipline; and
(b) By urging and permitting The Shop Committee to
conduct meetings at Respondent's Albion facility, during
working hours, and by paying employees for such at-
tendance; and
(c) By Respondent's supervisors and agents thereafter
attending and participating in the meetings of The Shop
Committee; and
(d) By recognizing and bargaining with The Shop
Committee since September 1978 in regard to safety and
discipline, notwithstanding The Shop Committee had not
been certified, did not represent an uncoerced majority,
and did not request such recognition.
10. Finally, whether under all the attendant circum-
stances to be determined herein, a remedial bargaining
order is warranted in any event.
A. Background
I. Respondent's operations
Respondent's corporate headquarters are located in
Spokane, Washington. Respondent operates manufactur-
5 Gordon Blake Ross was the plant manager through September 1977
Robcrit lays became plant manager in January 1978.
1416
COMET CORPORATION
ing facilities in Spokane, and also in Albion, Indiana,
where it is engaged in the business of the manufacture of
various type vans and trailers produced to specifications
of customers in the trucking industry or for dealers sell-
ing to entities who are engaged in hauling bulk freight.
Only Respondent's Albion division or facility is involved
in this proceeding.
The Albion plant is approximately 30,000 square feet.
Raw materials, e.g., steel and aluminum, are initially pur-
chased from suppliers and hauled to the Albion facility
by Comet-employed drivers, who drive equipment leased
to Comet by Gage Transport Company, Inc. (herein
Gage Transport), and who also deliver vans and trailers
when produced to Respondent's customers. Raw materi-
als are unloaded, usually by material handlers who bring
the materials to assembly points, and/or to a parts shop
for fabrication of parts which are either subsequently to
be welded in a weld shop into certain components (run-
ning gear, landing gear, king pin, rear frame, pintle box
and miscellaneous parts, or "sills") for inclusion in assem-
bly or final assembly process, or the fabricated parts are
delivered directly to assembly lines, or initially to certain
subassembly work areas prior to entry into the basic as-
sembly line process. The latter leads into a final assembly
where, inter alia, certain electrical, air, liner, and final
weldwork is performed. In issue is whether a certain axle
and brake assembly operation was a separate classifica-
tion (or department) for layoff purposes on August 31 as
contended by Respondent or whether its occupant at
that time, "Skip" E. Altimus, was theretofore essentially
a welder in the weld department as contended by the
General Counsel and UAW. There is also a two to three
man maintenance department in addition to the material
handling department, both being considered by the Em-
ployer as nonproduction or indirect labor, as are Re-
spondent's trucking operations.
2. Respondent's management and supervisory
hierarchy during material times
The Albion manufacturing division opened November
1975. Gordon Blake Ross was plant manager during the
period from December 1975 through September 1977.
On approximately January 1, 1978, Robert J. Hays
became the new plant manager. Employed since 1978,
Steve Cervi is currently the plant superintendent. Since
1976, Charles Dorgan has been employed apparently as a
combined officer, purchasing, and personnel manager.
Dorgan also performs certain supervisory functions over
material handling and traffic, including supervision of
Respondent's truckdrivers. 6 R. Reinhardt is a resident
engineer in charge of quality control. General Foreman
Bon Tucker supervises both parts department and weld
department; and he reports directly to Superintendent
Cervi. Currently Darrell Johnson is general foreman of
6 Hays related that truckdrivers report directly to Dorgan. In passing,
it is observed that, prior to hire, new and/or unknown driver applicants
are tested for driving ability by Tom M Gage, employed by Respondent
as a driver-dispatcher. Drivers frequently receive their dispatches from
Gage. Thomas M. Gage, not to be confused with his nephew Thomas F
Gage (the latter employed as an assemblyman), is also president and
owner of Gage Transport. The status of Tom M. Gage is discussed fur-
ther infra, with the discussion of the issue of placement of the drivers in
the unit.
assembly department and final department though his
primary responsibility is for assembly. Al Gaerte is fore-
man in final assembly department only. Both Tucker and
Gaerte report to Cervi. The two to three maintenance
department employees under a leadman, Burlie Jones,
report directly to Cervi. In the light of Respondent's ad-
missions, party stipulations, and evidentiary support in
the record, I find that the above managers and general
foreman/foremen during all times material herein were
supervisors and agents of Respondent within the mean-
ing of Section 2(11) and (13) of the Act; and I further
find that Robert Hasserd, Clarence Barnhardt, and
Ronald Huck, employed as foreman theretofore, viz, in
1976, were similarly supervisors and agents of Respond-
ent during that earlier material time as well. It was also
stipulated and I find that during material times Rayford
T. Blankenship was Respondent's agent.
Excluding for the moment, consideration of the six (6)
employees whose placement in the above production and
maintenance unit found appropriate is in issue, viz, four
drivers and two alleged summer help employees, the par-
ties have stipulated and I preliminarily find that the com-
plement of Respondent's above production and mainte-
nance unit in the material period of August 16, 1979, was
99 employees, saving only further the determination of
the status of Thomas M. Gage, to be discussed infra
B. The UA.4 W Organizational Activity
1. Initial contacts of welders Gregory Carter and
Hugh Hickman
On July 16, employee Gregory Carter, employed as a
welder in the weld department, contacted UAW Interna-
tional Representative Jack L. Albright concerning the
possibility of the UAW organizing the production and
maintenance employees at Respondent's Albion facility.
Carter was given a "single purpose" UAW authorization
card7 with instruction to arrange a meeting of interested
employees. Carter had no phone. Hugh Hickman, an-
other welder in the weld department who did have a
phone, was also interested in the Union. Carter signed
his authorization card on July 18 and mailed it back to
the Union which was received on July 23. On that day,
further contact of the Union was had with Hickman and
Carter and final arrangements made for the first union
meeting with interested employees to be held that after-
noon at Greg Carter's trailer home.
7 The authorization card used by the union herein is described by Al-
bright as being a "pure" card, The card itself provides on one side "I
[with place for printed name insert] authorize UAW to represent me in
collective bargaining" along with other data to be filled in, including em-
ployee signature The other side of the card unequivocally provides:
This card will be used to secure recognition and collective bargain-
ing for the purposes of negotiating wages, hours, and working condi-
tions.
You have the right under federal law to organize and join a union
By joining the UAW you have the support of one of the world's
largest unions.
There is no reference on the card itself to an election; nor in a brochure
which accompanied subsequent card handouts, discussed infra. I readily
find that the card utilized herein was a single purpose card authorizing
the Union to represent the signer thereof in collective bargaining in
regard to wages, hours, and terms and conditions of employment
1417
DECISIONS (OF NATIONAL LABOR RELATIONS BOARD
2. The first union meeting on July 23
Eleven Comet employees attended this first union
meeting held at Carter's home at approximately 3:30
p.m.; and all signed affirming their attendance and par-
ticipation in this UAW organizing meeting. In addition
to the two welders present, Carter and Hickmall (both
alleged discriminatees herein), there were also six assem-
bly line employees, two material handlers, and Randy
Gunder, a leadman in final (assembly) department. The
meeting lasted about 2 hours during which time union
matters were discussed. Albright testified credibly that
inter alia he told this group of employees that the signing
of the authorization cards would indicate their desire to
have the UAW represent them with their Employer.
Carter additionally corroborated that they were told the
cards were going to be used to show majority standing,
at which time a letter would be sent to the Company
asking Respondent to recognize their majority status; and
that if Respondent refused to do so the "NLRB" would
be petitioned for a vote. All the employees were given
single purpose authorization cards which they all signed
at that time (except leadman Gunder); and all agreed to
act on an inhouse organizing committee. I find at this
time the Union began its organizing campaign with 10
valid authorization card designations. 8 Albright instruct-
ed the organizing committee members as to their con-
duct of an organizing campaign; and distributed to them
organizing committee buttons and cards. Albright also
gave Gregory Carter, who agreed to head up the com-
mittee, approximately 100 single purpose authorization
cards with a brochure containing asserted benefits of
UAW representation of employees for collective-bargain-
ing purposes. Inasmuch as Carter had no phone, Hick-
man agreed to be the phone contact to and from Al-
bright. Each employee who agreed to serve on the orga-
nizational committee was given an organizational kit.
Union decals and union T-shirts were also made availa-
ble to them. Albright sent a letter (dated July 23) to the
Employer advising of the commencement of the UAW
organizational activity among Respondent's production
and maintenance employees and gave general notice
(without specific employee identification) that employees
would be serving on the "UAW In-Plant Organizing
Committee." Albright admonished the organizing com-
mittee not to begin their organizational activity at the
plant until the Employer had had time to receive the
Union's letter. Employees thereafter began their organi-
zational activity at the plant on July 25.
" Signed at this time were: Gordon and Gregory Carter, Kevin Ches-
ter, Jeff Coplin, Kevin Ellet, Thomas E. Gage, Hugh Hickman, Randy
King, Randy Marks, and Stanley Starcher, I note the cards of Randy
Marks and Kevin Eillet were entirely printed Nonetheless Marks identi-
fied his own authorization, and witness of the execution by Kevin Ellet
of a blank card was confirmed by Carter and others in attendance. John
P. Stout, whose card is also dated July 23, 1979, did not attend the July
23 meeting, and from his testimony of receiving it in the parking lot I am
satisfied and I find Stout has simply misdated the card he received on
July 25 and turned in the next day.
3. General overview of the subsequent card
solicitations and plant union activity
Card solicitation by certain members of the organizing
committee began at the Albion facility on July 25; and
continued through August 15 by which time the Union
had in its possession as is shown herein 62 single purpose
signed authorization cards, a clear numerical majority.9
The card solicitations had been carried out on a daily
(work) day basis, and almost, but not exclusively on non-
work time; i.e., before 6 a.m. shift start, at lunchtime, and
after shift closing in the parking lot, and usually near the
employees' entrance. t"
Starting August 1, and until layoff-discharge on
August 31, Gregory Carter (alone) wore two yellow
UAW decals (3 inches in size) one affixed on either side
of his welding helmet; and Hickman wore a UAW orga-
nizing committee button on his hat to work and on his
person while at work. Carter had additional UAW T-
shirts from a prior campaign in which his wife was in-
volved with the UAW; and Hickman had two union T-
shirts. The record convincingly established that Carter
and Hickman wore UAW T-shirts before others did, did
so more continuously, 4-5 days a week; and I thus find,
essentially did so all the time prior to their layoff-dis-
charge on August 31. Carter and Hickman testified (and
it was undenied by Gaerte) that Supervisor Al Gaerte
had observed, for some 5-10 minutes, Greg Carter and
Hickman soliciting cards (and I find) on the first day of
their solicitation at the plant in the parking lot. Plant
Manager Hays also admitted that he had observed union
cards being handed out in the lot, and I find would rea-
sonably have observed Carter doing so early in the cam-
paign; l t and in any event Hays, who on regular occasion
passed through the plant, also acknowledged that he had
observed both Carter and Hickman wearing the UAW
T-shirts along with certain other employees. However,
as related infra, Carter was particularly vocal and visible
in his prounion advocacy, indeed engaged in a direct
confrontation with agent Blankenship in the presence of
Hays, and to Hays' visible displeasure, on the occasion
when Blankenship delivered an antiunion speech to Re-
spondent's employees assembled at the American Legion
Hall (across the street from the Albion facility), the le-
gality of which Carter in certain aspects questioned. In a
front seat on that occasion was Hickman, also wearing a
committee button and union T-shirt; and it is admitted
' This finding is based on actual cards evidenced herein: despite Al-
bright's recollection he had received as many as 67 cards, which is noted
as not necessarily inconsistent with the number of cards offered to estab-
lish a majority of current employees at a certain time
0O ltickman however acknowledged that he was involved in some
union activity in the plant Thus Hickman relates that one employee,
Reginald Lazar, had inquired of him about a card in the weld shop, but
Hickman told Lazar that he would give him a card at breaktime, which
he did. towever, Hickman also returned their signed cards (dated July
25 and 26, respectively) to him in the weld shop. Hickman also acknowl-
edged that he had given a card to welder Darrel DeLong in the weld
department who signed it and returned the card (dated July 30) to him
immediately
I This finding is based on flays' testimony that he observed employee
Caldwell signing a card. Greg Carter had testified credibly that he gave a
card to Caldwell and identified the card of Mark Caldwell (dated July
26) as returned to him
1418
COMET CORPORATION
that on this occasion management officials had identified
some of the Union's (employee) organizers to Blanken-
ship.
Of 51 additional cards obtained between July 25 and
August 15, Carter has testified to a personal
solicitation/receipt of 23 additional cards, and Hickman
to such on 10 additional cards, thus overall, both ac-
counting for solicitation/procurement of two-thirds of
the additional cards obtained by the committee in the
period from July 25 through August 16. Contrary to Re-
spondent's contention in brief, this record has clearly es-
tablished beyond any reasonable question that Carter and
Hickman were the leading union adherents"' of which (I
find) Respondent was thus well aware prior to their
layoff-discharge on August 31.
4. Respondent's initial reactions, Respondent's
antiunion speech of July 3011
Upon receiving notice that the UAW would be con-
ducting an organizational campaign among its employ-
ees, Plant Manager Hays promptly reported that devel-
opment to Respondent's president; and within a few days
had contacted Labor Consultant Blankenship for assist-
ance. A meeting of all employees on working time wias
promptly arranged and held at the local American
l egion Hall which is located directly across the street
from Respondent's Albion plant. Hays relates that the
meeting of the employees was called because they
wanted to make sure that the employees were properly
informed of what was going on. The meeting began an
hour before normal quitting time and lasted about 2
hours. Employees attending were paid overtime for the
extra hour.
Blankenship sat at a head table with Plant Manager
Hays. According to Greg Carter, Blankenship began the
meeting by stating to the employees that he was appear-
ing before them, not to represent the Company or the
Union but to present the pros and cons of unions; but
Carter testified that Blankenship had then gone on to a
totally negative discussion of the Union. Hays relates
that he introduced Blankenship to the employees and
that Blankenship had mentioned the rights of employees,
and of the Company and the Union. While I credit the
latter, I also credit Carter, corroborated by Hickman,
that Blankenship spent the first hour essentially then re-
lating negative reasons for the employees having a
union-in short, delivered an antiunion speech to all the
1 All cards procured by the tour to five committeemen active in card
solicitation were returned to Carter, who delivered them to Albright
r' There is much conflict in the evidence as to whether Respondent's
meeting was on July 30. or on July 31 immediately hefore an open union
meeting held at Albion Park. I resolve the conflict on the basis of Dor-
gan's testimony based on timecards of employees that indicated payment
was on July 30 for their attendance at the company meeting It would
serve no useful purpose to relate all the evidence either that additionally
supporting such, or contrary, beyond observing that frequentl the latter
was based on employees talking on July 31 about the recent company
meeting, and there is no question that its effects were to be obhserved i
the question-and-answer session of employees with Albright on July 31.
thus contributing to a relation of one to the other. and, in my view, no
doubt to confusion on the part of many as to their being of same date of
occurrence.
assembled employees." All agree that at some point
there followed a question-and-answer period.
a. The alleged inlerrogation of employees by
Blankenship
Dcspite availability of other witnesses who were in at-
tendance at this meeting, the General Counsel offered
only the testimony of Greg Carter and Hickman in sup-
port of this allegation. Carter's testimony was that he
seemed to recall, though he could not recall whether
such occurred during the speech part or question-and-
answer part of Blankenship's speech, Blankenship say:
"Can anyone tell me why they want a union? It seems to
me there's an open channel of communication between
The Shop Committee and Management." However, on
cross-examination his recollection thereon was then dis-
jointed, was acknowledged to be not verbatim, and ren-
dered his direct testimony in that area much less con-
vincing. Carter also had related that there were re-
sponses to Blankenship's question, which would suggest
the same had occurred as part of the question-and-
answer session; but Carter could then not recall any sub-
ject response or speaker specifically.
Hickman, on one occasion, in relating that Blankenship
had spoken about several union contracts that he knew
about, related in conjunction therewith that to his knowl-
edge of unions he could not see why employees needed a
union in the shop because of the lines of communication
that employees had with the management, that he did
not understand what kind of a problem that the employ-
ees had that was so great that they needed outside inter-
feretnce. Hickman did not confirm a reference to The
Shop Committee. Hickman also could not recall when
the latter was discussed; but on cross-examination stated
he did not believe Blankenship had paused; thus suggest-
ing, when considered with union contract discussion con-
nection, that such remarks were a part of Blankenship's
antiunion speech, and thus the more likely reasonably
recognizable by employees as but an expression of opin-
ion or viewpoint of Blankenship offered to persuade but
less likely to be viewed as an interrogation of them to be
some time later responded to by them. However, Hick-
man did also testify on direct that there was a question
addressed to employees, though he preliminarily stated it
was one that he could not remember word for word,
which was then described by him as being-"why we
thought we needed a union in Comet, and that if anyone
could tell him, you know, why we needed a union-or
why we thought we needed a union." Hickman also
could not testify as to a reply of anyone, if any.
It is uncontested that Blankenship had announced to
the employees prior to his speech that he was going to
tape the meeting for his own protection. At instant hear-
ing Blankenship did not testify in denial of any of the
above versions of Carter or Hickman, testifying rather in
support only of an offer of the tape made of the meeting.
On objection, the tape and a partial transcript thereof
14 Hays conceded there were discussion on strikes and the provisions
of the Union's constitution and/or bylaws, etc.: and Hickman recalled
that Blankenship had spoken (unfavorably) about several union contracts
that he knew abohl
1419
I)ECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
were rejected inter alia, and primarily for conceded con-
tainment in the tape of substantial segments that were in-
audible, garbled, and without speaker identification
and/or gaps. On request the exhibit was placed in the re-
jected exhibit file. Respondent's renewed request for my
review of same is denied; and said exhibit has not been
considered herein. However, I do observe that Blanken-
ship did testify that the tape was not tampered with by
him, nor to his knowledge by anyone intentionally, or at
his direction. Blankenship did also appear to concede
that it could not be proven by experts, either way,
whether the tape had been tampered with. Blankenship
has set forth the circumstances of the tape's production,
attempted transcription, including secretarial mishap.
Having fully considered all these particulars, I decline to
draw any inference from the defective condition of the
tape, or deficiencies of the transcript thereof.
Hays however did testify in this area. Thus Hays' rec-
ollection was that the question-and-answer session had
only lasted about 15-20 minutes; and Hays denied that
Blankenship had asked employees any questions, testify-
ing in that regard: "No, you [Blankenship] made a lot of
statements that people should ask themselves, or should
consider, or be aware of, but no, I didn't hear you ask
any questions." General Foreman Tucker essentially cor-
roborated Hays.
b. The confrontation of Carter with Blankenship and
Hays
At the commencement of the question-and-answer ses-
sion, Carter first said to Blankenship "so much for the
cons of Unions. How about the pros?" Blankenship
promptly replied-"there aren't any." Hickman recalled
that toward the end of the meeting that Carter had in-
quired if the meeting was legal. Carter relates that Blan-
kenship said that if anyone had any questions about the
legality of the meeting that he would be glad to give the
phone number and name of whom to ask for at the
NLRB Regional Office in Indianapolis. Carter then
asked for the phone number and as Blankenship began to
give it, Carter asked him to stop as he did not have any
paper. Carter then walked to the head table from his po-
sition directly in back of Hickman and asked Plant Man-
ager Hays for a piece of paper. Carter on this occasion
was wearing an extra large UAW T-shirt, with an 8-inch
VOTE and 3-1/2-4-inch UAW logo. Carter testified that
Hays tore it off violently from a tablet of paper and
more or less threw it across the table, with Hickman,
however, recalling Hays sort of tore it out of the tablet
and slid the tablet across the table. More significantly,
Carter's description of Hays' appearance at the time as
being that "[h]e was tight lipped, rather flushed, nasty
looking is the only way I can put it" was convincingly
corroborated by Hickman who described Hays as ap-
pearing at the time red in the face, and tight-lipped. Both
confirm that when Carter then asked for a pen Hays
pulled a pen out of his pocket, but just handed it to
Carter. As noted earlier I am convinced and I find that
Hays was visibly displeased by Carter's prounion actions
and his confrontation with Blankenship in front of the as-
sembled employees.
c. The question raised in regard to plant rule.s
Hickman recalled that one employee, Tom E. Gage,
brought up an occasion when he had been sent home for
wearing shorts; and Gage asked where the company
(dress) rule was, that he had not seen it. Hays responded
that company handbooks were being printed up at the
printers in Spokane and as soon as they were printed
they would be distributed. (A temporary copy was dis-
tributed to employees later in August discussed infra.)
d. The question raised in regard to wearing the union
T-shirts
Hays recalled that Hickman had inquired in this meet-
ing about a rumor that if the Union did not get in, that
all the people wearing T-shirts were going to be fired;
and that Blankenship had promptly replied that was not
the case, as it was not legal; and it was not the way they
operated.
5. Respondent's dealings with The Shop Committee
a. Post-settlement evidence of the existence of a Shop
Committee as part of a Shop and Safety Committee:
and development oJ same as a labor organization
during the period from September 21, 1978, through
August 7, 1979
As was earlier noted Robert Hays assumed his position
as plant manager of the Albion facility on January 1,
1978. The pertinent provision of the informal settlement
agreement approved on February 9, 1977, entered into
during Ross' tenure, in adjustment of allegation that Re-
spondent had rendered unlawful assistance and support
of The Shop Committee, a labor organization, provided
agreement by Respondent that it:
. . .would refrain from urging employees to form
or join the Shop Committee of Comet Corporation;
that the Respondent would withdraw and withhold
all recognition from the Shop Committee as the bar-
gaining representative of any of its employees unless
and until said Shop Committee had been certified as
the collective bargaining representative by the Na-
tional Labor Relations Board; and that the Re-
spondent would not in any other manner interfere
with, restrain or coerce its employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
It is uncontradicted that from entry of such informal set-
tlement (February 2, 1977) through end of Manager
Blake's tenure (September 1977), Respondent had no
dealings with The Shop Committee.
On approximately April 11, 1978 (Monday), following
prior request of employees, Supervisor Bon Tucker (then
general foreman), with the knowledge of Hays, estab-
lished a Safety Committee. Design and purpose of the
Safety Committee as stated in writing to employees was
(limitedly) to meet to discuss constructive suggestions on
safety, repeated unsafe practices, and safety hazards
noted in the plant. The Safety Committee was to meet
regularly every month. Tucker designated the plant areas
1420
COMET CORPORATION
that would be represented, viz, parts department, weld
department, east line, west line, final, maintenance, and
material handling. Tucker specifically designated lead-
man Burlie Jones for Maintenance, which department
would do the repair and/or corrections. The other desig-
nated areas were asked to provide volunteer representa-
tives to the Safety Committee. If an area did not produce
a volunteer (and some did not), the most senior man was
then asked to serve as the Safety Committee representa-
tive for that area. In the period April II through Sep-
tember 20, 1978, the Safety Committee met apparently
only on April 13 and 27 and June 15, 1978, discussing
only safety matters. (Additional meetings for May 19 and
July 13, 1978, were scheduled but apparently not held.)
In August 1978, Rick Sherman, then a welder, asked
Hays on two occasions if the employees could establish a
Shop Committee to present employee complaints. On
both occasions Hays refused. The establishment and func-
tioning of Respondent's Safety Committee through
August 1978 is not claimed violative of the prior settle-
ment agreement of February 7, 1977.
During the week of September 18, 1978, one of Re-
spondent's foremen initiated certain disciplinary action
against three employees, citing a violation by them of ex-
isting company rules and policies. Angry over what was
viewed as inconsistent disciplinary action taken in differ-
ent plant areas, a number of employees (Respondent con-
tending in brief as much as 70 percent of the work force,
but in any event I find a majority) walked out of the
plant for a few hours in protest of what they viewed had
been an unfair discipline of their fellow employees.
An effort was made by Plant Superintendent Steve
Cervi to get the employees engaged in the work stop-
page to come back to work. However, the employees re-
fused to do so until Hays came out and met with them.
On Cervi's report of that circumstance to Hays, Hays re-
fused to go out, but agreed to meet with a small repre-
sentative group of employees in his office to discuss the
problem. Some 5-6 employees, including welder Rick
Sherman and his brother Paul Sherman (then weld lead-
man), were among the group who at that time were as-
signed or volunteered to meet with Hays for that pur-
pose. Cervi was also present in the office when they met.
Mays started by admitting they had a problem. Rick
Sherman said that they wanted the disciplinary action re-
scinded on the three employees involved; and both em-
ployees and management agreed they needed a better set
of (local) shop rules which they really did not have. On
review of the 30 facts of the incident, Hays concluded
that the disciplinary action taken was inconsistent with
prior action, and he agreed to rescind it. Hays also
agreed to get the Spokane home office to give Albion
employees their own rules and policies. i
'
Paul Sherman then mentioned having a Shop Commit-
tee to meet with management on such employee com-
plaints, so that their problems could be worked out.
Hays, who had twice refused similar urging by Rick
Sherman in the past month, on this occasion replied that
he thought, "It would be a good idea." However, Hays
5 T he foregoing findings are based on credited testimony of Sherman,
Hays, and Ccrvi to the extent mutually consistent.
then said that he wanted to combine the Shop Commit-
tee with the existing Safety Committee, so he would not
have so many people attending different meetings and so
he would not have to meet with both. Rick Sherman tes-
tified credibly that Hays also added that Burlie Jones
would have to attend all meetings because of the mainte-
nance and safety aspects; and Hays said that the Commit-
tee should have a cross-section of the plant, naming the
departments that could have a representative, and in so
doing combined material handling with another depart-
ment.
Shortly after Hays' approval. Rick and Paul Sherman
returned with three other employees on September 21,
1978, who were later joined by Burlie Jones; and the
first meeting of the newly constituted Shop and Safety
Committee was then held with Respondent's representa-
tives. In that meeting and subsequent meetings in 1978
there were clearly some but limited committee inquiries
made of management, touching on subjects directly relat-
ing to terms and conditions of employment, e.g., employ-
ee requests for restroom maintenance and improvements
in the employees' brcakroom area. As early as December
1978 and at least by January 1979, committee inquiries
had been significantly extended, inter alia, to such sub-
jects as for a pension plan, a credit union, and (by Febru-
ary) for employee washup time and parking lot. (This
finding is based on Hays' testimony that minutes dated
1-8-79 were in part a photostat of a prior meeting, thus
seemingly a December 1978 meeting.) More specifically,
the minutes of the meetings of September and November
1978 reveal that with exception of restroom and break
area requests (and arguably an inquiry as to pay phone
availability for shop employees in November 1978) items
raised were predominantly, indeed almost exclusively, on
safety and/or production-maintenance related items.
Commencing in 1979, though a clear primacy of safety
and/or production-maintenance related items continued,
other items began to appear raised for discussion with a
discernibly greater frequency. Thus at least commencing
in January 1979, in addition to the above-noted subjects
(break area, restroom, pay phone) there appeared as
agenda items: credit union, pension plan and for air vent
fans in final and weld departments; and in February re-
quest for washup time and (employee) parking lot pave-
ment.
However, it essentially was not until April that Re-
spondent's answers on these subjects were recorded in
the minutes and a clear report to employees was made,
via minutes posting. Thus, in April, there is report of one
vent in weld being completed, and a second to start as
soon as possible, a new break area to be started soon. An
Employer answer is reported in regard to request for pay
phone and pension plan as essentially not to be made
available to employees at this time (April); and any
washup period to be granted, (only) on a man-to-man
basis with an involved foreman. It was reported that
quotes continued to be taken on an employee paved
parking lot. However, it is both notable and significant
that in regard to the subject of plant rules of conduct
(which were of initial concern to employees in Septem-
ber 1978) it was reported in the April 12, 1979, minutes
1421
DECISIONS OF NATIONAI. LABOR REI.ATIONS BOARD
only that rules of conduct would be given to the shop
employees as soon as an approved copy was received
from Spokane. There was no prior discussion of the con-
tent of such rules between Employer representatives and
employee committee members, prior to August 1979,
though committee members from time to time made in-
quiry thereon. I find there was no bargaining on shop
rules during this entire period.
There is a dispute as to whether The Shop Committee
functioned at all in the period from April to August 7. In
contending that it did not, the General Counsel relies
heavily on the absence of any minutes theretofore regu-
larly kept for such meetings when held. Hays testified,
with convincing documentary support, that in 1979 he
had an ongoing oral and written discourse with Spokane
concerning the development of shop rules for Albion
employees. Hays also asserted rules had developed to the
point that there were discussions on same with The Shop
Committee in May and June. Although Angel at one
point related there was earlier discussion he testified cre-
dibly that The Shop Committee reviewed the rules only
once before distribution and, upon review of August 7
minutes, clarified the time as being August 7. None of
the other members of The Shop Committee corroborated
Hays. In the absence of documentation (minutes). I
credit Hays' recollection of discourse only to the extent
corroborated by Angel and the minutes. Moreover, I do
not credit Hays' other recollections that prior existing
Employer shop rules (as opposed to safety rules) had re-
maincd posted in the plant in the light of the major and
general unawareness of such by employees.
b. Respondent v upgraded dealings with The Shop
Safety Committee on August 7, 1979
The minutes of August 7, 1979, meeting of The Shop
Safety Committee shows Hays and Cervi present, with
T. Angel, Burlie Jones, and L. Coe present (for Dazey
who was on vacation); and newly appearing thereon
were R. Detweiler and D. Slone. These minutes record a
decidedly different format and tone. For the first time
old business is distinguished from new business and as
much as one-half of agendaed old business addressed
nonsafety items. Subjects covered are the cleaning and
painting of restrooms, with report of one being half done
and the other in process; hookup of a second vent fan in
the weld shop; renewed attempts to be made on a credit
union; renewed consideration to be given to a washup
period at the end of shift; specific details of an employee
parking lot to accommodate 58 cars and 10-15 motorcy-
cles, on a first-come first-serve basis, and with arrange-
ments made to accommodate overflow in the VFW
parking lot across the street; and, as noted, specifically in
regard to rules of conduct, notation that "They have
been reviewed with the Committee to make certain all
points clearly understandable." (I also credit Angel that
handbook draft was reviewed.)
Safety items continued to predominate on new busi-
ness but even then with notable provision for future dis-
cussions of (some) significant subjects in: a program for
certification of welders; a statement on work hours and
company policy on overtime and workday limit; and a
statement on company policy on work by leadmen, and
by supervisors; change of the company doctor; janitorial
work assignments; and a request for a substitution for
absent tow motor operator. Before passing on to review
of the Shop Safety Committee meeting held on Septem-
ber 5, 1 observe the pertinent UAW and Respondent ac-
tivities in the interim.
c. The UA W's interim demand for recognition and
commencement of bargaining: Respondent 's refusal of
posted certified mail
Additional card solicitations which began on July 25
continued through August 15, with the Union by that
time having procured 62 authorization cards. Having at-
tained a numerical majority of single-purpose authoriza-
tion cards in the sought unit of production and mainte-
nance employees, the UAW promptly sent a letter (dated
August 16) advising of its majority designation as exclu-
sive representative, of all production and maintenance
employees "for the purpose of collective bargaining in
respect to rates of pay, wages, hours, and other terms
and conditions of employment, to become effective im-
mediately"; offered to establish its majority position by
impartial check of its authorization cards; requested insti-
tution of negotiations; and cautioned against Respond-
ent's negotiating "with any person or organization pre-
suming to act as agent for, or in behalf of, any such em-
ployees." The said demand letter was delivered to Re-
spondent on August 17, by posted certified mail, which
was promptly refused by Respondent's agents, pursuant
to earlier direction of Hays on advice of Blankenship.
The refusal was on the specific basis that the letter
would be likely to contain just such union demands and
notices. t I conclude and find Respondent is legally
chargeable with the service of same, and thus with
notice of its contents. Upon postal return to it of the re-
fused demand letter, the UAW promptly petitioned for
an election on August 23. 1979.
d. Respondent's distribution of a temporary copy of
Comet Corporation's "Employee Handbook--Albion
Plant"
On an unspecified date (but I find) in late Augustt 7 a
new but temporary employee handbook, entitled "Comet
Corporation, Employee Handbook-Albion Plant," was
distributed to employees; and as presently pertinent
under "10, Shop Safety Committee" therein provided:
Comet employees are represented in matters per-
taining to safety, compensation, employee benefits,
disciplinary procedure (sic), etc., by representatives
elected by their fellow employees on a department
basis.
I, It would serve no useful purpose to review the tlestimony thereon,
particularly Hays, since admissions and concessions eventually were
made of record by Respondenl's supervisors and agents substantially to
the above effect I do observe that, on this matter. Hays' testimony was
initially neither frank nor candid.
" The Shop Safety Committee minutes for the mcetling of September
5, 1979, confirm in regard to rules of conduct (also contained therein)
that "Temporary copies have been issued to employees Printed books
should be available in about two (2) weeks R. Flays"
1422
COME F CORPORAI IO()N
1. Parts and Material Handling
2. Welding
3. Line Assembly
4. Final Assembly
5. Maintenance
Committee meetings with management are held
monthly. Input from employees is to be channeled
thru committee members.
Departmental or plant employees meetings with
Committee and Management will be scheduled
upon request and approval by shop [sic] Safety
Committee and Management Representatives. i8
e. The alleged publication. maintenance and
enforcement of an unlawfidl "no access" rule. and
overly broad and thus unlawtful "no solicitation and
no-distribution " rules
The aforesaid temporary copy of the "Employee
Hlandbook-Albion Plant" also provides in number "8.
Employee Rules of Conduct" as follows:
A. Major Rule Violation . . .
13. Unauthorized entry into Company property.
B. Minor Rule Violations:
4. Soliciting, collecting contributions or distribution
of literature, written or printed matter of any de-
scription on company premises without specific
company authorization.
Respondent essentially defends that the above were
rules that existed, in prior corporate Shop Rules applica-
ble at Albion plant, and posted to employees well before
August 1979. As noted, ii the face of substantial employ-
ee testimony to the contrary I have not fully credited
Hays in that regard. Respondent also defends it never
prohibited such actions, with the General Counsel con-
tending that Respondent did not affirmatively show that
it did not enforce these rules.
f. Continued upgraded dealings with T7h Shop and
Safety Conmittee,' and related assistance considerations
The next meeting was held on September 5. In the in-
terim on August 31 there had been a layoff of 22 em-
ployees. The General Counsel does not contest that eco-
nomic grounds existed for a general layoff at that time,
but does contend that welders Carter, Hickman, and
IH In contrast Sherman testified credibhl that, during the 8 months that
he xwas a member of The Shop and Safety Comminittee up tl April 197'.
there "as never an) prior indeplndet meeteTing of The Shop alnd SaferT
Committee or any kind of vote by the committee. or ot( any 'subect
Coimmitteeman Angel testified credibly that the time arid place of prior
meetings were regularly established b' ltays arid Cerl; indeed. Illtat
sometimes Cervi would come and get them just before the metlinig was
held Hays has acknowledged that. on one later occasioln v hen a Shop
Committee member had left Respondent's employ, he had suggested to
the committee Ihat they find a replacement for that cnltmber, which Ihe 5
prnomptly did
I1 Employees are also therein infiirmed that a violaltiotn of a major rule
can result in immediate lernmination For lilolation of minor rnoles infrau
discipline involves written warning ((or wsrittlen arning ,with 3-da;) sits
pension for violation of same rule ,ithin 90 days) and with termination
provided for receipt of three v arnilgs in a given h-monlh period
Martin McCoy were discriminatorily selected for such
layoff, discussed infra. The minutes of the meeting of
September 5 reveal that the same individuals as in the
prior meeting were again in attendance; and the meeting
followed the same format. There were continued reports
and discussions on the above old business subjects of the
August 7 meeting, inter alia: possibilities for a change of
company doctor; parking lot marking; and promise of
credit union information presentment in the future.
Under new business there appears a proposal for a third
week of vacation after 5 years; discussion of employee
abuse of breaks: and layout of the break area.
A representation hearing on the Union's petition had
been scheduled and was held at Kendalville, Indiana, on
September 14, and again on September 18. Hays ac-
knowvledged that Committeemen Angel, Best, Dazey,
and Jones attended hearing on both days; and that they
were all paid by Employer while they were in attend-
ance. though none were under subpoena by the Employ-
er. (Angel received his regular pay while in attendance
at the instant proceeding.)
On apparently September 17 (Monday) a meeting of
all employees as held on company premises, at request of
certain members of The Shop Committee made of man-
agement, which was promptly approved by the latter.
Notices of same were posted on the buletin boards. The
meeting was significantly scheduled and held one-half
hour before normal quitting time of employees. Employ-
ees were thus paid by the Employer for their time of at-
tendance. 2 Angel testified that his understanding of the
purpose of the meeting was to afford employees an op-
portunity to sign a petition authorizing The Shop and
Safety Committee members to attend the representation
case hearing and to report back thereon to the employ-
ees. At the hearing held the next day on September 18,
Blankenship urged that intervention of The Shop Com-
mittee should be allowed in that proceeding and that it
should be afforded a place on the ballot.
The next meeting was held on October 8 with Hays,
Cervi, and Tucker present for management, and with L.
Ellet appearing as acting for Angel, with Dazey back,
but with D. Slone not attending and a new employee, G.
Best, appearing. There was continued report and discus-
sion on restrooms, and on a washup period (with a 5-
minute washup period eventually promised in a later No-
vember I meeting, and made effective at end of shift, in
December 10 meeting); continued investigation of credit
union possibilities (with attempt in November I meeting
to align with other companies; and report in December
of continued lack of success, but with effort promise to
be contitnued; notice of change of company doctor;
notice of an in-house testing program for welder certifi-
cation; 3 weeks of paid svacation to be provided after 10
years, discipline for unauthorized use of break area and
vending machines: and under new business, a staggered
break system was proposed as an open item for discus-
sion (and declined in November with additional ma-
chines made available and disagreement reportedly regis-
" Although initially not acknowledging such. tlays later admitted that
in a prior slatemiltit he had acknol. ledged that The Shop Cornmittnce was
pernilrCed to ha,\r such Iton working time
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tered by other employees). A request made for a weekly
paycheck distribution was declined because of restric-
tions of computer system in use; and inquiry made on in-
surance, received an Employer forecast of change, prob-
ably around first of next year. In the same minutes there
appears under new business:
5. The question of changing committee members
was raised. The management of the company will
recognize and cooperate with persons selected to
the Shop and Safety Committee. However, for the
committee to be effective it must be stable.
In the November meeting D. Johnson joined Hays and
Cervi. Angel was back with Dazey and Jones, Best con-
tinued, and M. Bennett substituted for Detwiler. A
plantwide meeting was subsequently held; and nomina-
tions made for election to positions on the committee.
Ballots, prepared by the Employer's secretary, were used
for the first time, and an election was subsequently held
for employees to formally choose their new committee
members.
In the December 10 meeting, Tucker again joined
Hays and Cervi. Joining Angel and Jones were employ-
ees K. Chester, B. Leitch, and J. Owens. Under new
business there was discussion of possible items for a 1980
wage benefit package, including it being noted there had
been a prior 10-13 percent rate of inflation for the year;
and recording that an additional meeting in December
would be held thereon. Significant was Hays' testimonial
concession thereon that though there was no written
agreement on such there was then an "understood agree-
ment reached."
In the January 11, 1980, meeting C. Dorgan joined
Hays, Cervi, and Tucker. R. Feightner appeared in place
of Leitch. Under new business there was a report on in-
surance, and on wage changes, asserted as totaling 11
percent on average wage rate. In a February 5, 1980,
meeting a special meeting was held discussing, inter alia,
plant production backlog and possible alternatives to a
layoff. All elected committee member and alternates
were present except B. Jones and J. Owens. Thus present
were T. Angel, C. Edwards-final; K. Chester, B.
Leitch, R. Feightner-Assembly; J. Sheets-maintance-
truckdrivers; K. Sherman, G. Carter-weld shop 2 ' ; and
D. Slone-parts department. Additional meetings were
held in February in regard to a pending layoff, with ma-
jority of committee on February 21 proposing a 4-day
workweek, if possible. Present for the Committee on this
meeting were Angel, Chester, Jones, Leitch, Owens, and
K. Sherman.
6. Presettlement evidence in regard to the Shop
Committee origin
The record reveals that a similar organizational drive
by Teamsters Local 414 had commenced in the spring of
21 Greg Carter had been rehired in November, and his overall subse-
quent employment status is discussed infra I obhserve that excepting
Carter, who began the campaign and was the first employee to sign,
Shop and Safety Committee members/alternates L. Ellet, Angel, Shone,
Leitch, Chester, Owens, Detwiler, and Feightner all had signed cards for
the UAW on or befoire July 26, except I.eitch who signed on July 31
1976 with (then) Plant Manager Ross having acknowl-
edged at hearing and/or recorded in a prior sworn state-
ment that he had received notice of that union's activity
from a supervisor in late April or early May 1976. Ross
relates that the first mention of a shop committee was ac-
tually by an employee, Harry Steffe, in conversation
during a group disciplinary matter. The underlying cir-
cumstances were that a group of employees had been or-
dered to work overtime on a Saturday, had reported in,
but had then walked off the job. For that job action,
they received several days off in discipline. In the related
disciplinary interview attended, inter alia, by Steffe and
employees Richard A. Collingsworth and Byron Graves,
Ross relates that Steffe had said to Ross that they (man-
agement) were acting in a very high-handed manner, and
that employees needed some kind of a plant committee,
indicating they had to set up some kind of a means of
communication. According to Ross, he said at that time
that he would go along with the formation of such a
committee and told Steffe to decide who the employees
wanted to represent them. However, a layoff intervened
in May; and Respondent's work force went down to a
skeleton crew to the point as Ross revealingly testified,
"the functions weren't sufficient to where we could have
established any kind of a committee that would have
made any sense at that time." (Emphasis supplied.)
Former employee Collingsworth, in confirming his at-
tendance at the disciplinary meeting, recalled it as being
on May 10 (a Monday) and at a time after he had al-
ready attended two union (Teamsters Local 414) meet-
ings. Collingsworth's testimony is that Ross on that occa-
sion had said that he would like to see the men start a
shop committee because they (the employees) were com-
plaining about things in the shop that were not right;
though he also recalled that Ross mentioned that he had
talked to the men before (about it). Collingsworth per-
sonally had heard nothing earlier about The Shop Com-
mittee. Collingsworth, who was among the group laid
off later in May, was subsequently recalled, only to be
again laid off on July 14, 1976 (Wednesday). Former em-
ployee Byron Graves also present at the disciplinary
meeting essentially confirmed Collingsworth that on that
occasion Ross told the group of employees that, if they
wanted representation, they would have to form a shop
committee, though on cross-examination he somewhat
qualified in testifying that he thought Ross had brought
up the subject of the committee, but he was not sure.
According to Ross it was on a later occasion when the
employees made a request of Ross for a lunchroom, or
an area to eat, other than general plant area, and for a
refrigerator to keep soft drinks in, that Ross actually told
the employees to form a committee to talk about it. On
that occasion, the employees inquired how they would
do so, and Ross replied they should have a meeting and
vote on their representatives. However, I am persuaded
by the entire evidence of record, and I find, that a notice
for such a meeting was first posted on July 20, 1976
(Tuesday), the very same day that Teamsters Local 414
had renewed its handbilling at the Employer's premises,
which activity had been reported to Ross.
1424
COMET CORPORATION
The meeting at which The Shop Committee was first
actually formed was held the very afternoon of July 20,
1976, at the end of the shift at 3:30 p.m. This first meet-
ing, I find, was not held on company time, but it was
held on an impetus supplied directly by Ross following
his awareness of renewed Teamsters organizational
effort.
Ross and Supervisors Bob Hazzard and Ron Hook at-
tended the formation meeting; as did employee Collings-
worth, though at the time on recent layoff. I credit Col-
lingsworth's testimony that it was Ross who started the
meeting which was attended by approximately one-half
(more or less) of the employees who remained working
after the last layoff. Thus, Ross began the meeting by an-
nouncing that they could go ahead and start the meeting
and elect their officers. Nominations were promptly
made and an election held. Collingsworth conceded that
such was done without management's participation oth-
erwise in the actual selection process while he was there.
However, Collingsworth also testified that after about 5-
10 minutes Ross left the meeting, returned, and shortly
thereafter Ross called Collingsworth out of the meeting and
asked Collingsworth what he was doing there. Collings-
worth replied he came to attend the meeting. Ross then
told Collingsworth that he did not belong there because
he was laid off; and Collingsworth then left. Collings-
worth acknowledged that it was explained to him that
the committee was only a form of resolving problems be-
tween management and current employees before they
became too severe.
Ross essentially confirmed (and I find) the purpose of
The Shop Committee at the time was for employees to
air gripes which would then be adjusted. 22 Ross also ac-
knowledged that The Shop Committee representatives
had never claimed that they represented a majority of
the employees in the plant. According to Ross, The
Shop Committee was to meet on items of interest to em-
ployees and take care of them for employees, but only
after hours, except for safety items. Ross also acknowl-
edged that in a subsequent meeting with The Shop Com-
mittee, he had discussed an employee requested lunch-
room area, and then granted same; with employees
agreeing to provide their own refrigerator.
Graves, at that time also recently laid off, relates that
he was notified of the holding of the first (July 20) meet-
ing of The Shop Committee by Collingsworth. Graves
testified credibly that he attended the second Employer
Shop-Committee meeting held on (I find) July 21. 1 fur-
ther credit Graves that this meeting began at 3:15 p.m.
(regular worktime), and was attended by (essentially) all
2 As conceded by Ross, The Shop Committee formation was
Basically to maintain some kind of communication between the plant
management and the employees, letting employees know what we
were going to do, what our plans were, hearing from them about
safety related items, things that they would probably see sooner than
we would, and generally just to air their gripes so that, you know.
we could find something that was bothering them, we could take
care of them
It was also stipulated by all parties that the most important function of
The Shop Committee at that time was actually to find out what employ-
ees' gripes were
the working employees;2` and that Ross then led a 15-
minute discussion about a pop machine, though such was
not voted on while Graves was there. Again, as with
Collingsworth, Ross noticed Graves and asked Graves
what he was doing there. Graves replied that as long as
he was not terminated he had a right to be there. Graves
was then taken by Ross to the general office, being also
accompanied by The Shop Committee representatives at
Graves' request. On arriving at the office Ross gave
Graves his termination papers, apparently dated July 16
(prior Friday), and Graves promptly left. According to
Graves, none of The Shop Committee representatives ac-
tively participated in any conversations (relating to him)
though Graves acknowledged also that he had made no
specific reference to raising a grievance on his termina-
tion. I credit Collingsworth and Graves in the above par-
ticulars.
Ross otherwise testified that after the employees were
provided a lunchroom (in August) that The Shop Com-
mittee essentially became a "nothing." Ross specifically
denied that Respondent had subsequently negotiated
with The Shop Committee on any wages, vacations, in-
surance, etc., for employees. 24 Finally, Ross testified
without contradiction and credibly so that there was no
Shop Committee operating at all in the plant from Feb-
ruary 2, 1977 (Employer settlement date), for the remain-
der of his tenure which lasted through September 1977.
a. Preliminary analysis, conclusions, and findings in
regard to the independent 8(a)(1) and (2) allegations
In contending that Respondent's agent, Blankenship,
has interrogated employees in violation of Section 8(a)(l)
of the Act, the General Counsel and UAW would rely
on Ethyl Corporation, 231 NLRB 431, 434 (1977), and
UAW additionally on El Rancho Market, 235 NLRB
468, 472 (1978). I have no quarrel with the efficacy of
the General Counsel's or UAW's urged legal principles,
as such.2 5 The problem with such legal contentions pre-
vailing herein is the unconvincing underlying evidentiary
base which was offered. Thus, Respondent has with
record substance observed, in brief, that out of all the
employees who were in attendance at that meeting,
many of whom were called as witnesses herein by the
-: Collingsworth estimated that some 15 or more were present at the
first meeting; and Graves estimated that there were 20 30 at the second
mecting
-4 Teamsters Local 414 in the interim had filed a charge in Case 25-
CA 243 alleging 8(a)( ) arnd (3) violations in the layoff of Collingsworth
on July 14, 1976. and discharge of Coliingsworth July 20, 1976; and simi-
larly as to discharge of Graves in Case 25 CA -8187 1 By agreement of
the parties, such matters are subject of reinstated informal settlement
agreement terms and are thus not further to be considered herein Case
25-CA-X387 2 charge of 8(a)(1) and (2) and complaints thereon were re-
served by the parties for resolution herein
: Trhus, the General Counsel correctly would have observed that an
employer's probing of an employee union interest and support, by en-
couragilng either agreement to, or argument with, a stated question, may
serve to interfere with, restrain, and coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act. The UAW addition-
ally would rely oin El Rancho Muarket supra, a case in which an owner's
wife had inquired of emploees as to their desires foir changes. and fol-
lowed with individual inquiries of employees as to their problems, which
were urged to be ironed out by themselves (thus with adjustments prom-
ised impliedly. without a union)
1425
DECISIONS OF' NATIONAl I. AIOR REI.ATIO)NS ()ARD
General Counsel on other matters, only two witnesses
(Greg Carter and Hickman) were produced in support of
this particular complaint allegation. I observe and find
that the witnesses produced were (on this matter) unsure
in their testimonial recollections, and in significant as-
pects gave substantially hesitant and divergent, if not, as
urged by Respondent, actually inconsistent accounts. Re-
spondent's answering witness Hays who denied there
were any questions asked by Blankenship; rather testify-
ing of his own recollection, that 3Blankenship's statements
were usually prefaced with a conditioning statement es-
sentially to the effect that what followed was something
that employees should ask themselves, or be aware
and/or consider, thus the more likely constituting but ex-
pression of lawful Employer opinion, or viewpoint. It is
the function of the trier of fact to initially determine
whether there has been a preponderance of credible evi-
dence presented which is sufficient to convince that a
certain Employer statement was made in circumstances
under which it tended to interfere with, restrain, or
coerce employees in the exercise of their Section 7
rights. It having been the General Counsel's ultimate
burden to have persuaded me by an offer of such con-
vincing evidence that a particular statement was made by
Blankenship to the assembled employees (or an individu-
al in question-and-answer session) which constituted the
unlawful interrogation as alleged, and having failed to do
so by the weight of credible evidence offered, I shall ac-
cordingly recommend that this allegation of the amended
consolidated complaint be dismissed.
The complaint also alleged that in August, Respondent
published, maintained, and enforced the certain rules of
conduct (thus as were contained in the temporary typed
copy of the Employee Handbook when published in
August), because employees had recently joined and as-
sisted the Union, and for the purpose of discouraging
employees from engaging in such activity. The General
Counsel's argument that the above publication of the
rules of conduct was itself discriminatory rests essentially
on the timing of its occurrence in relationship to the
Union's organizing campaign. Though conceding that
shop rules of conduct were a basic employee concern
which had arisen about a year earlier, the General Coun-
sel nonetheless relies on the fact rules were left unre-
solved since then; and on Respondent's strong amimus
shown present viz, the clear hostility shown by Respond-
ent to the Union, evidenced by Respondent's: prompt an-
tiunion speech as delivered by Blankenship; refusal to
even accept a delivery of the Union's demand letter in
the mail; and the certain other violations of the Act as
herein are found. The General Counsel would also have
noted as supportive the contrast to be observed in Re-
spondent's action in granting contemporaneous upgraded
status to the Shop and Safety Committee upon the
Union's arrival on the scene despite prior 3-4 months in-
activity of the Shop and Safety Committee.
Earlier findings, however, serve to establish that not
only had the subject of employee-desired clear rules for
the Albion plant first been raised in September 1978, but
there was also from time to time continuing inquiry
about the shop rules by certain shop committee mem-
bers; and there was also credible testimony of Hays (with
supporting intracorporate correspondence in early 1979),
on the basis of which I find there was in fact an ongoing
intracorporate dialogue between Albion and Spokane re-
lating to the development of these rules of conduct
(along with the other provisions contained in the Albion
plant employee handbook) during the first half of 1979,
thus well prior to the advent of the Union. The April
Shop and Safety Committee minutes likewise confirm
there existed an Employer ongoing expressed intention
to publish new shop rules of conduct to employees when
approved copy was received from Spokane; and Hays
both reconfirmed and showed advancement on such with
reference to printed copy distribution in question-and-
answer session on July 30. Thus, while the temporary
typed form of the initial publication may be suspiciously
suggestive that there was a decision made for an ad-
vanced or hastened publication and distribution of shop
rules of conduct in that form at this time, the rules of
conduct were no less clear with the appearance of being
steadily in the making, indeed evidenced as long in the
making. Moreover, the certain specific rules indepen-
dently questioned by complaint allegations, I am satis-
fied, did exist in prior corporate rule base. Consequently,
I feel constrained to conclude that while the temporary
typed copy distribution is itself suspicious in timing of re-
lease, the publication of rules of conduct itself, when de-
veloped, is not, by virtue of mere timing sequence to
union activity and/or Employer's hostility to the latter,
thereby controllingly shown as one discriminatory in
origin or publication.
However, as to the certain specific rules also indepen-
dently alleged in complaint and contended by the Gener-
al Counsel to be violative of Section 8(a)(]) of the Act,
clearly the General Counsel's positions prevail; and I ac-
cordingly conclude and find that the restrictive rules
therein contained on "Soliciting .... or distribution of
literature . . ." on and on "Unauthorized entry . . ."
were indeed independently violative of Section 8(a)(1) of
the Act.
Clearly the above employee handbook rule violation
provision applying to "Soliciting . . . or distribution of
literature . .. . on Company premises without specific
Company authorization" was unduly broad and unlaw-
fully tended to be restrictive of the above important em-
ployee rights to engage in self-organizational activity
during their own lunch and break periods on company
premises.27 It would seem clear that there is no apparent
limitation of such tendency in that a respondent has not
otherwise sought to enforce the published rule by an
actual instance of award of provided discipline, where
the rule itself has been publicized in a form, which at
:o I/Ess'x Internarionul. Inc., 211 NL.RB 749 (1974): cf I R. 4 HBearingi
Division, a D/vision of I:R. 14, Inc., 257 NLRHB 442 (1981) In the latter
case, the Board recently explicated, at 443
Inasmuch as employees may rightfully engage in organizational ac-
tivities during breaktime and mealtime, rules which resirain. or
which, because of their ambiguity, tend to restrain employees from
engaging in such activity constitute unlawful restrictilons against and
interference with the exercise by employees of the self-organi.ational
rights guaranteed them by Section 7 of the Act
27 See also ,Muallor BHitry terCompany, a division of P R. Mallor & Co..
In,., 23'1 NI.RB 204. 2()5 (1978)
1426
COMET CORPORATION
best, is left ambiguously restrictive of these basic em-
ployee organizational rights. Moreover. even with con-
clusion that these particular rules were in form as earlier
corporately published; and even were it to be further
concluded that they had not only been previously appli-
cable at the Albion plant, but remained applicable at
Albion (as Hays asserted), though they' did not remain
posted nor indeed were even generally known to most, if
not all employees (as I have found), the General Counsel
has still correctly observed that the republication and
distribution of these rules (in August in the employee
handbook), even in unchanged form, which are still too
broadly proscriptive of statutory union organizational ac-
tivity by employees, effectively constituted a mainte-
nance thereof, which itself tended to inhibit employees in
the exercise of their above Section 7 rights in violation
of Section 8(a)(1) of the Act. 2 8
Finally, inasmuch as the above "Unauthorized entry
. ." rule did not limit access solely with respect to the
interior of the plant and other working areas; it thus was
left proscriptive of off-duty employees entry to parking
lots, 2 9 gates, and other nonworking areas without a dem-
onstrated business reason justification; e.g., to maintain
production, discipline, or security. Being thus stated in
too broad a manner, it tended to restrict all employees in
self-organizational activity in these areas when off duty
and thus tended to interfere with them in the exercise of
their Section 7 rights in those areas at those times. Ac-
cordingly, I conclude and find that Respondent's unclari-
fied "Unauthorized entry" rule was similarly violative of
Section 8(a)(l) of the Act.0o
b. In regard to Shop and SafJit Committee
In February 1977, Respondent undertook in the infor-
mal settlement agreement that it would not urge its em-
ployees to form or join The Shop Committee of Comet
Corporation; and that it would withdraw and withhold
recognition of same as employee bargaining representa-
tive unless and until The Shop Committee was certified.
I find that thereupon the prior shop committee immedi-
ately became inoperative in the Albion plant.
Respondent next initially established an unquestioned
Safety Committee in April 1978. Prior to September
1978, Respondent has had no "dealings" with The Safety
Committee on subjects that would constitute this com-
mittee a labor organization, and/or in connection with
that Safety Committee is unlawful charge made (includ-
ing Respondent's establishment of a practice of paying
committee member employees for their attendance at
safety committee meetings). No issue is seen to arise at
all until there is an acquiescence of Hays to leadman
2S Utrad Corporation. 185 NlIRB 434 (1970), 454 F 2d 520. 523 524
(7th Cir. 1971)
2s While Respondent was aware of employee solicitation in the park-
ing lot and by employee entrances. all such preshift and postshift solicita-
tion activity by employees appears to have taken place prior to the pubhl-
cation of the above rule in the employee handbook Inplanl activity was
minimal, and there was considerable overtime worked by some empl',
ees in August, affecting arrival/departure times
so Bulova Wfatch Com/pan). Inc., 208 Nt.Rt 79t} (1974): Iri-(ounti
Medical Center. Inc.. 222 NL.RB 1089 (19761); (Camphbell Chain (ornpany.
237 NLRB 420, 422 (1978); and Conintenial Rut .5vten,. In, . 229 NL.RI)
12h2 (1977)
Paul Sherman's unprompted request in September 1978
for a shop committee to meet with management on em-
ployee complaints and Hays' immediate agreement there-
to and action in the formation of a combined Shop and
Safety Committee.
Paul Sherman's request was a limited one, viz, for a
shop committee that would meet with management on
employee complaints. Unlike employee Richard Sher-
man's two similar requests for a shop committee which
were made of Hays in the prior month and promptly re-
jected by Hays as unnecessary inasmuch as Hays then
felt that there was good communication between the em-
ployees on the floor and management, Paul Sherman's
request for a shop committee that would bring employee
complaints to management was made at the very
moment of an existing serious employee work stoppage
brought on by inconsistent disciplinary action by super-
visors which also convinced Hays that weakness existed
in the area of the plant shop rules. (If then posted, it is
more probable Hays took existing shop rules down at
this time.) Sherman's inquiry as to a shop committee was
promptly embraced by Hays as a "good idea." With
Hays' announcement that management essentially would
meet with a Shop and Safety Committee on employee
complaints (grievances) an incipient labor organization is
clearly described, .VL.R.B. v. Cabot Carbon Co., 360
U.S. 203, 213 (1959); and see UCS. Railway Equipment
Company, 172 NLRB 708, 720 (1968). 1 pass for the
moment alleged unlawful assistance thereto.
Respondent did not meet and bargain with the Com-
mittee about the content of shop rules which was a relat-
ed concern of the walkout, certainly not before August
7; and addressment of safety matters was only a continu-
ance of the Safety Committee which had been estab-
lished for months without prior question. Thus, contrary
to an apparent urging of the General Counsel, and con-
trary further to clear contention of Respondent that Re-
spondent had actually recognized and commenced bar-
gaining with the Committee immediately in September
1978 (including Xwholly discredited contention of Re-
spondent that it had done so because of being faced with
a majority demand) I am rather more persuaded, in the
light of Hays' above-credited testimony, and I find, that
Respondent had neither recognized nor bargained with
the Shop and Safety Committee from September through
December 1978. indeed I am persuaded it did not do so
even through April 1979. :3' However, Respondent just as
:" Thus. it `ias merely recited in minutes to he posted to employees: a
pension plan was denied at this time, there will not be a credit union of
fered until a group can be found that will accept them. an emploee pas
phone was not possblle until the phone company would assume all re-
sponsibilils for installation cost and monthly minimum billing There
cere however some progress and/or open reports in April on other
raised subjects, e g . in regard to ain employee paved parking lot (raised in
February) that quotes continued to be taken; in regard to sents. that one
was operational in Weld. and a second would hbe provided as soon as pos-
sible; in regard to restroom, that the wash basin and hot water Were
fixed, and the rioom in process of cleaning, in regard io hreak area inm-
prorement (raised Ir September 1978) an assertion that a relocation and
conslrilction of a niew break area would start soon, but %ithout an) ap-
parent concurrent response at that time to request foir additional ma-
chines in regard tio washup period (also raised In February) that such
,will be afforded onils onl a inan-to-manl, basis on dis.cuion with the fore
(n tin ued
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly did have "dealings" with the Shop and Safety
Committee from time to time; and however attenuated in
1978, and becoming progressively clearer in 1979, the
same were such as to have confirmed clearly the Shop
and Safety Committee a labor organization from its in-
ception throughout this period, though it continued to be
an undemonstrated and unrecognized majority employee
representative. Accordingly, it is found that the Shop
and Safety Committee is, and has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act since
September 21, 1978.32 However, I further conclude and
find that it was not until August 7, 1979, that the Em-
ployer formally recognized the Shop and Safety Com-
mittee as the representative of employees "in matters
pertaining to safety, compensation, employee benefits,
disciplinary procedure, etc." It follows and I shall rec-
ommend (in any event) that the complaint allegation that
Respondent unlawfully recognized and commenced bar-
gaining with the Shop and Safety Committee in regard
to safety and discipline, in 1978, be dismissed.
Before passing on to the General Counsel's and
UAW's further contentions in regard to claim that there
was a radically changed relationship exhibited by Re-
spondent towards the Committee on and after August 7,
it seems equally clear that Hays and Respondent's other
agents were directly involved in the initial formation of
the Shop and Safety Committee and its continuing ad-
ministration. Thus, it was Hays who at the start con-
trolled combining The Shop Committee in a Shop and
Safety Committee because Hays did not wish to meet
with more than one group of employees, or committees.
It was Hays' further requirement that there be a continu-
ance of his personally selected maintenance and safety
representative, on the new Committee (to cover safety
and maintenance aspects), and if he did not effectively
control the selection of other representatives, it was he
who identified the plant areas that would be represented
by such individuals, merging one department (material
handling) in doing so. Thereafter, Respondent's supervi-
sors and agents participated in all of the committee meet-
ings held in this period.
That the Shop and Safety Committee had in this
period, as a practical matter, functioned essentially at the
will of Respondent is also plain from other evidenced
circumstances herein, viz, it had no formal structure, was
not self-supporting. Indeed from September 1978 through
April 1979, there were no prior and independent meet-
ings of the Shop and Safety Committee by itself; and
thus there were no caucuses held by it, nor any votes
taken by it on any of the subjects that it did raise. (The
same is but further supportive of finding there has been
no collective-bargaining or negotiations throughout that
period between the Committee and Respondent.) Rather
this record wholly convinces me that such meetings as
were held were essentially called always by the Employ-
er, occasionally by it at the very last minute. Indeed,
though there was an April 12 published (minutes) notice
man; that shop rules (which as noted were to date unnegotiated) would
be given to shop employees as soon as approved copy was received from
Spokane.
:2 N.L.R.B. v. Cabot Carbon Co.. e al., 360 U. S 2()3 (1959); D)oces
Sixth Ave. Inc., 225 NLRB 806. 812 (1976).
to employees that meetings in the future were to be held
regularly on the first Monday of each month in a fore-
man's office, I have found none were held thereafter for
several months. With Respondent's own subsequent fail-
ure to actually continue to call meetings, in the period
May-July, as it normally had done in the past, Respond-
ent, significantly, simply had no further "dealings" with
the Shop and Safety Committee at all during that sub-
stantial period of time. Neither, with April report of its
accomplishments in its dealings with Respondent, did the
Shop and Safety Committee seek any renewal of such
meetings in the same period. I am convinced it was thus
so simply because none were again called by Respondent
before August 7. 1 conclude and find that Respondent
was deeply involved in the initial formation of the Shop
and Safety Committee and in the ongoing administration
of the Committee at its inception in September 1978 and
as it developed as a labor organization through April
1979.:1:'
The Respondent has contended essentially in regard to
allegations of unlawful assistance and support of The
Shop Committee that its actions were outside the statu-
tory 10(b) period of current charge in Case 25-CA-
11349, filed September 21, 1979. However, Respondent's
pre-10(b) arguments, such as they are, are more precisely
addressable to its conduct involvement in the formation
of the Shop and Safety Committee in September 1978,
and its meetings with the Committee prior to March
21. 34
The General Gounsel contracontends basically that
Respondent has twice interfered with employee self-or-
ganizational efforts by unlawful assistance and support of
The Shop Committee at its Albion plant. More precisely,
the General Counsel has correctly conceded that the
consideration of whether Respondent's presettlement be-
havior of prior complaint proceedings (in Cases 25-CA-
8243 and 25-CA-8387 (1-2)) may presently be found to
constitute violations of Section 8(a)(2) and (1) of the Act,
is an issue that can only be addressed after finding is first
made of other post-settlement unlawful conduct breach-
ing the terms of the earlier settlement.35 However, prior
events, even pre-l0(b) which are of a nature such as to
shed light on alleged unlawful conduct occurring within
the statutory 10(b) period, are admissible and relevant as
background evidence thereto, so argues the General
Counsel, generally correctly. Berbiglia, Inc., 233 NLRB
1476, 1485 (1977). But see Local Lodge No. 1424, Interna-
tional Association of Machinists, AFL-CIO [Bryan Manu-
facturing Co.] v. N.L.R.B., 362 U.S. 411 (1960), for the
parameters of permissible evidentiary use of such anter-
ior events. In that connection Respondent would also
:: i Consequently Respondent's arguments that would basically seek to
distinguish the 1978 79 Shop and Safely Commiltee as disrelated from
earlier 1976 77 Shop Committee essentially on the basis of its form and
structure are simply not to be viewed as persuasive.
a4 Contentions are that its 1978-79 actions in regard to the Shop and
Safety Committee are too remote and unrelated to earlier charge concern
in regard to Respondent's relationship to the 1976 Shop Committee; that
its 1978-79 conduct did not constitute a breach of the settlement agree-
ment of February 9, 1977; and its alleged 1976 conduct is not available
and/or proof that Respondent's conduct within the 10(b) period in regard
to T he Shop and Safety Committee was unlawful as alleged.
:'* Corniell C(ompanv. Inc., 159 NLRB 42, 44 (1966).
1428
COMET CORPORATION
have observed the Board's own previously expressed
concern, essentially that there be more than minimally
independent probative evidence of unlawful conduct
within the 10(b) period, particularly where other offered
background evidence is remote. Consolidated Flavor Cor-
poration, 238 NLRB 326, 327 (1978).36
It is not of dispositive significance in this matter that
the Shop and Safety Committee has been found to be a
labor organization since September 1978, inasmuch as the
mere pre-10(b) existence of the Shop and Safety Commit-
tee as a labor organization does not preclude findings of
specific incidents of alleged unlawful assistance and sup-
port later rendered that committee within the 10(b)
period, if otherwise established.3 7 The General Counsel
relies principally on contention that 10(b) conduct, and
particularly Respondent's conduct on and after August 7,
constituted serious violations of Section 8(a)(2) and (1)
and fundamental and material breach of the prior settle-
ment agreement, thereby justifying the Board's Regional
Director thereafter setting the settlement agreement
aside, and proceeding not only on original 8(a)(2) and (1)
allegations in Cases 25-CA-8243 and 25-CA-8387 (1-2)
in regard to Respondent's alleged initiating, forming,
sponsoring, and promoting The Shop Committee in 1976,
but also its conduct in September 1978, and subsequent
conduct (by amended allegations) of interference with
formation and administration of that employee commit-
tee.38
I address first the matters of alleged unlawful assist-
ance and support rendered the Shop and Safety Commit-
tee clearly within 10(b) period, principally Respondent's
conduct towards the Committee on and after August 7.
Of all such conduct claimed to constitute unlawful assist-
ance, support, and encouragement of the Shop and
Safety Committee none would appear to be more clear,
and more indisputable, than was the act of formal recog-
nition then broadly extended to the Shop and Safety
Committee by Respondent for the first time (only after
employee organizational effort had begun at the plant) as
the representative of employees "in matters pertaining to
safety, compensation, employee benefits, disciplinary pro-
cedure (sic), etc." with specific direction to employees to
channel their input on such subjects to the committee;
and with further notice that committee meetings with
management are held monthly and that a plant employ-
ees' meeting with same might be scheduled upon request
and their approval. All of the same stands in stark con-
trast with Respondent's 3-4 months hiatus in having had
any "dealings" with the Committee, for whatever reason.
That formalized status granted to the Committee was
first noticed in discussions with the committee members
on the employee handbook when they met on Respond-
ent's call on August 7; and the same was later individual-
ly published to all employees with the subsequent distri-
butions of, firstly, a temporary typed copy of employee
S6 Clearly presettlement conduct may otherwise reseal the motivse or
object of a respondent in its postsettlement conduct, Northern California
District Council of llodcarriers and Common Laborers of America. AFLI
CIO (Joseph's Landscaping Service), 154 NLRB 1384. fn. 1 (1965).
37 See, e.g., Walker Process Equipment, Inc., 163 NLRBt 615, 620, 623
(1967).
a8 Thereby encompassed properly would he all of Respondent's al-
leged unlawful conduct
handbook in late August, and secondly, printed copy of
same distributed to employees 3 4 weeks later. Nor is it
overlooked that this formal recognition shortly followed
an expression of Respondent's own strong antiunion
stance made promptly and clearly to all assembled em-
ployees on July 30, and on the heels of a concurrent Re-
spondent stress laid upon employees in regard to existing
employee lines of communication with management in
context made unmistakably clear of even date. The ex-
tended formal recognition was also contemporaneous
with formalized (unlawful) shop rule restrictions placed
on employee union activity at the plant in regard to so-
liciting, distributing literature, and access, as earlier
found.
Nor were Respondent's immediately renewed "deal-
ings" with the Committee unappreciable then, or in the
months to come. Thus on August 7 Respondent immedi-
ately discussed details of its plan for a proposed employ-
ee parking lot and it effectively reopened for additional
discussion under (new) title of old business, such subjects
of prior committee interest as: the earlier desired washup
period for all employees at end of shift;' 9 and it also
promised a renewed effort would be made to obtain a
credit union. The employees and the Committee did not
fail to heed or to take full advantage of Respondent's of-
ferings. In subsequent months discussions freely covered
a variety of subjects, overtime hours policy, vacations,
work assignments, work by supervisors, institution of
welder certification program, insurance, indeed leading
eventually to discussion of and agreement on a full wage
benefit package in December, effective in January 1980.
Consultations on layoffs begun in late August were con-
tinued in January and February 1980. 1 conclude and
find that it was only following Respondent's grant of the
above formal recognition and its broad invitation that the
"dealings" of Respondent with the Committee were thus
broadly extended to the whole gamut of collective-bar-
gaining subjects, and Respondent thereupon in substance
and effect (I find) commenced bargaining with the Com-
mittee.
Respondent's formal recognition of the Shop and
Safety Committee, after a substantial period of the lat-
ter's inactivity, and Respondent's interrupted "dealing"
subsequently upgraded to bargaining with the same
Committee in regard to the employees' rates of pay,
wages, hours, and other terms and conditions of employ-
ment, has unquestionably seriously interfered with the in-
tervening basic employee self-organizational effort then
only recently begun. Accordingly, I conclude and find
that, commencing on August 7, Respondent did recog-
nize and subsequently bargain with the Shop and Safety
Committee, a labor organization, as the exclusive repre-
sentative of its production and maintenance employees in
matters pertaining to wages, hours, and other terms and
conditions of employment, notwithstanding that said
Committee had not demonstrated that it represented an
3a In contrast with earlier disposition of the request on the basis of a
man-to-man determination by an involved foreman, subsequent discus-
siosns led to grant of the 5-minute washup period for all employees, made
effective in December It also reviewed and made changes on discipline
matters in this meetinig
1429
DECISIONS OF NATIO()NAl I ABO(R RELATIIONS BOARD
uncoerced majority of those employees, and had not re-
quested such recognition; and that thereby Respondent
did render the Shop and Safety Committee unlawful as-
sistance and support, which seriously interfered with
Section 7 self-organizational rights of employees in viola-
tion of Section 8(a)(2) and (1) of the Act.4 0
Respondent has afforded the Committee other clear in-
stance of unlawful assistance and support in its conduct
of permitting an assembly of all employees on company
premises on company paid time during which certain
committee member conducted solicitation of authority to
support their participation in the representation hearing;
by its clerical and other assistance in formalizing com-
mittee membership status by secret ballot in December;
by typing and posting minutes of its meetings in this
period of heightened activity and by its payments of
wages to committee members for their attendance at
these meetings, as well as for their attendance at the rep-
resentation hearing and the instant unfair labor practice
hearing; but not, in my view, for mere advancement of
contention during representation hearing that the Com-
mittee should be allowed a place on the ballot in a
Board-conducted election. 4
In the light of Respondent's prior voluntary undertak-
ings in settlement agreement of 1977 that it would there-
after refrain from urging employees to form or join the
Shop Committee at Albion and that it would withdraw
and withhold recognition therefrom unless and until the
Shop Committee was certified as collective-bargaining
representative, I further conclude and find that there has
been a substantial and material breach of that prior vol-
untary adjustment by Respondent's above unlawful rec-
ognition, and bargaining with the Shop and Safety Com-
mittee at Albion, and by its above other unlawful assist-
ance and support rendered thereto.
The evidence as to the origin of the Shop Committee
in 1976 is clear and convincing and itself need not be be-
labored. The weight of the evidence supports finding,
and I find that Former Plant Manager Ross, when initial-
ly faced with the Teamsters local 414 organizational
effort at his plant, sponsored and urged employees to
form and join a Shop Committee at Albion initially in
May 1976; and that thereafter, in July 1976, on the occa-
sion of the Teamsters renewed organizational effort
(after a substantial layoff), Ross renewed and gave impe-
tus to the formation of the Shop Committee, and in so
doing encouraged employees to form and join it; and
that he and other supervisors and agents of Respondent
then attended, participated in, and controlled the attend-
ance at its formative meetings on July 20 and 21; and
that by all the above conduct, and by permitting a meet-
ing of The Shop Committee to be held thereafter on paid
company time on July 21 in which Respondent discussed
benefits and/or terms and conditions of employment Re-
spondent has unlawfully participated in the formation
and administration of the said Shop Committee and con-
4" In view of the weight of 10(h) probatiic evidence offered, the case
of Consolidated I lavor Corporation. iupra, relied on by Respondent is
clearly distinguished.
" A represenltatiion ease proceeding is basically art ihicstigatory one ill
which all parties should be left fully free to bring all potlentially aterial
facts to the attention of the Board
stituted it a labor organization from its origin; and has by
all of the above conduct rendered it unlawful assistance
and support in violation of Section 8(a)(2) and (1) of the
Act; and in practice and effect has dominated it.
The evidence of record has convinced me that with
the settlement agreement entry by Respondent the origi-
nal Shop Committee effectively ceased to function and
exist; and that the Safety Committee which was thereaf-
ter first inaugurated in April 1978 neither then reason-
ably constituted a continuance of The Shop Committee
in other form, nor were Respondent's dealings therewith
such as to reasonably warrant finding that the same con-
stituted a labor organization, particularly so when the
same as such has not been alleged. Similarly for reasons
detailed above which need not be repeated presently I
have found facts which lead me to further conclude that
Hays did not urge employees to choose the newly
formed Shop and Safety Committee as their collective-
bargaining representative in September 1978, neither for
safety nor discipline as alleged in the complaint. As to
the former a safety committee was already functioning;
and as to the latter, although clear shop rules relative to
discipline award were a continuing concern of employ-
ees, I have found Hays had no discussions with employ-
ees about their content from Septemer 1978 until August
7, 1979. I shall recommend that these complaint allega-
tions be dismissed. There can be no real question present-
ed in regard to the background of IHays' involvement
with the formation of a combined Shop and Safety Com-
mittee, nor also in regard to Hays and other supervisors'
and agents' participation in all Shop and Safety Commit-
tee meetings and payment of members for attendance
thereat. It was Respondent's call and wish that con-
trolled the schedule of its meetings. I accordingly con-
clude and find further that Respondent has thereby con-
trolled the formation of this employee labor organization
and rendered it unlawful assistance and support, interfer-
ing with its operations, all in violation of Section 8(a)(2)
and (1) of the Act. I conclude and find in practice and
effect it had dominated the Committee.
C. The Alleged Discriminatory Layoff and Discharge
of Welders Gregory J. Carter, Hugh Hickman, and
Martin McCoy
By August 16 the UAW had obtained to a majority of
signed single-purpose authorization cards and sent its
demand for recognition to Respondent which Comet of-
ficials received August 17, but, with anticipation of its
likely contents refused to accept. On August 23, UAW
filed petition; and Respondent concedes it had received
copy thereof before announcement of any pending
layoff. On Tuesday, August 28, a notice of pending
layoff was posted by Respondent. The notice recited,
inter alia, that there had been a downward industry trend
generally; and specifically, that two large contracts had
not materialized "due to customer's hesitancy to purchase
equipment during this economic downtrend" (emphasis sup-
plied); and that a layoff was necessary and would be an-
nounced the following Friday, August 31. For the first
and only time employees were notified that such layoffs
would be "without expectancy of a recall." On Friday,
1430
COMET CORPORATION
August 31, the names of 22 employees thus selected for
permanent layoff (or termination) were posted. 42 Includ-
ed were the names of welders Gregory Carter, Hickman,
and Martin McCoy. I find that on August 31 they were
permanently laid off or terminated. 43
At the outset it is to be observed that the General
Counsel does not attack by complaint allegation Re-
spondent's assertion that economic grounds existed at
this time for a general layoff of employees. Rather the
complaint has more precisely alleged and it is the con-
tention of the General Counsel (and UAW) specifically
that three of four welders laid off at this time were dis-
criminatorily selected for the layoff on August 31, 1979,
because of their prior union activity.
1. The General Counsel's prima facie case
The high profile of Carter and Hickman as the leading
union adherents. and Respondent's awareness of same,
has been heretofore found. Respondent's general hostility
to the Union is every bit as clear from its prompt anti-
union speeches employees, rejection of union claim and
the unfair labor practice conduct heretofore found, as is
Hays' hostility thereto, as particularly and specifically
made visible towards Carter.
The posted August 28 notice also asserted: "Company
practice has always been to lay off by seniority within
classification. We will at all times protest the seniority
rights of our employees." Also posted at this time was a
list of employees entitled "Employee List By Seniority
Within Classification." This was the first such list, viz, se-
niority within classification, that employees had ever
seen before in the plant; and I find it had been prepared
under Hays' specific direction for use in this layoff after
consultation with Blankenship. All prior and subsequent
seniority lists were plantwide seniority listings. 4 4
42 One, the most senior, John Klopfenstein, a final electrician (but
listed under assembly) had planned on leaving, notified Respondent prior
to the layoff and took a voluntary permanent layoff at this time
43 Gregory Carter was rehired on November 1 and Hickman on No-
vember 5 as ne4w employees McCoy was not. Carter and Hickman have
been subsequently laid off and recalled, but never with a full prior serv-
ice credit return
44 The General Counsel introduced in evidence all such prior lists that
were applicable from February I through July 27 (the latter with its ad-
ditions and deletions through August 27), entitled "Seniornty I ist," and
update lists thereafter dated entitled "Seniority List." and update lists
thereafter dated September 5 through November 7, entitled "Employees
Seniority [ ists" Hays also related that these lists e g. prior to August
28) were not actually seniority lists but only a list of employees by clock
number (essentially sequential) used for purposes of fringe benefits How-
ever, in agreement with the urgings of the General Counsel and UAW I
reject such characterization as one not warranted by clear weight of
credible testimonial and documentary evidence of record In that connec-
tion, later at the hearing Hays claimed that certain other lists (identified
as Resp. Exh 7) were prior lists by seniority within classifications On
lack of Hays' ability to properly authenticate them, and on objection
being sustained, the lists (Resp. Exh 7) were withdrawn. No effort was
made thereafter to introduce them by any others who it would seem
would have been able to properly authenticate any actual use of them
Leadman Sherman did testify that there were manpower assignment lists
by classification but denied they were seniority lists In brief Respondent
appeared to urge that these lists were related by Hays as used for pur-
poses of seniority within job classifications, but neither record cited, nol
the documents introduced, nor the record as a whole convinces me of
that fact. I conclude and find the August 28 posted list was uniquely pre-
pared for use in the August 31 layoff
Of 46 employees listed under the assembly department
on the August 28 list, 14 were subsequently laid off on
August 31; of 14 employees in the final department, 3
were laid off; and of 10 employed in the parts depart-
ment, I employee was laid off. Of the 13 employees
listed under weld department, 4 welders were laid off.
There were no layoffs in other departments and/or work
areas. 4 5
There is also credible, indeed uncontradicted, evidence
in the form of current weld department leadman, Rich-
ard Sherman, that in past layoffs Respondent's practice
had been to retain its welders over other less skilled job
classifications, if at all possible, and specifically over as-
semblers. 4 6 The last plantwide seniority list prior to the
August 28 list was July 27. It is clear from analysis
thereof that Carter, Hickman, and McCoy, the alleged
discriminatees herein, and another welder (Hovarter)
were the four most senior employees involuntarily laid
off on August 31. (Their 1979 seniority 10 dates of hire
were: Greg Carter, April 17; H. Hickman, April 18; M.
McCoy, May 22; and Randy Hovarter, June I 1.)
Thus Carter and Hickman were the most senior em-
ployees involuntarily laid off. Between Hickman and
McCoy, the next most senior employee laid off there
were six employees retained, they being three employees
in assembly, one (rehired) material handler/leadman
(Eugene H. Best, Jr.), and two in parts. 4 7 Between
McCoy and Hovarter, the next most senior employee
laid off there were four or five employees retained, they
being three in assembly (including Ryan J. Winebrenner
listed as summer help) and one or two drivers. 4? Even
more in seeming contrast with prior stated practice of
keeping welders, if at all possible, between Hovarter and
Howard L. Mapes, assembly, the next most senior em-
ployee laid off, there were some 14 additional employees
(one in parts and the rest in assembly, but with one)
(Chris P. Edwards) shown as quitting the same day. 4 9
4' There were no employees laid off in the material handling depart-
ment, and there were no full-time drivers laid off Though several part-
time drivers had been previously employed by Respondent, they had not
been called to work for a long time: they did not appear on this list: and
they were not called for work subsequently Though the part-time driv-
ers were not specifically notified of a termination, nonetheless I find,
under all of the above circumstances and the record as a whole, that they
had had no likelihood of a call to work
4e This finding is based on uncontradicted credited testimony of weld
leadman Sherman that he was told by (admitted) Shop Supervisor Robert
Hasserd on the occasion of a prior layoff in 1976, that in a layoff, welders
were retained if at all possible, since other categories of workers with less
skills, such as assemblers, were easier to obtain (Welders were put to
work in maintenance.) The last prior layoff by Respondent in 1976 was
during the tenure of former Plant Manager Ross. The instant August 31
layoff, howsever, was the first layoff effected in Hays' tenure as plant
manager
47 Included in this group was Thomas R. West, hired as a welder on
May 9 (less senior than Carter and Hickman) but transferred to parts de-
partment on July 2, but who subsequently worked in the weld depart-
ment after August 31, discussed infra
4s Included was Erville K Callison (thus less senior than all alleged
discriminatees). who also was assigned to do weld work thereafter. dis-
cussed infra, and tBuddy D Todd listed as a driver, on July 27 list, but
who does not appear on August 28 list
49 Also significantly less senior than Mapes but retained was driver
'erry I1 Stafford, who was assigned to do weld work thereafter, also
discussed infra Another listed driver, Bryan 1, Triman, also does not
appear on the August 28 list.
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally 15 of the 17 least senior employees were laid off
at this time, principally in assembly except that one, D.
Edsall, shown as being laid off on August 31 list is
shown on the July 27 seniority list (update) as quitting
the same day (August 31).
On the basis of the above-determined very prominent
and leading union activity of Greg Carter and Hugh
Hickman, Respondent's (including Hays' personal)
knowledge and exhibited displeasure therewith, Respond-
ent's deep hostility toward the Union otherwise clearly
shown present, along with the timing of the termination
of Carter and Hickman being within 2 weeks of refusal
of union demand letter by Respondent and I week of
union pursuit in petition filing, and with appearance of
their permanent layoff being inconsistent with a prior
practice of Respondent, I conclude and find that the
General Counsel has made a strong prima facie showing
that the selection of Carter and Hickman for permanent
layoff on August 31 was discriminatory, and their resul-
tant discharge in violation of Section 8(a)(3) and (1) of
the Act.
As to the third alleged discriminatee, Martin McCoy,
the General Counsel, while appearing to concede there
was more limited union activity by McCoy and a lack of
showing of direct knowledge on the part of Respondent
of McCoy's union activity, proceeds on a theory that
Respondent had to terminate McCoy first in order to get
to Carter and Hickman and that thus McCoy's layoff in-
volved a discriminatory motivation even without direct
company knowledge. (The General Counsel does not ad-
vance complaint allegation or similar claim as to Ho-
varter, who, like McCoy, had signed a union card on
July 25.) The General Counsel also introduced evidence
that establishes that one of the two employees retained
(in the group of the 17 least senior employees) was Skip
E. Altimus who is shown on the August 28 list, separate-
ly, under heading of "Axel [sic] & Brake Assy." and not
the weld department; but who was hired as a welder on
July 27, was so shown as such on the July 27 seniority
list and other company records, and whose above job
Sherman has testified without specific contradiction by
Respondent that both he (Sherman) and McCoy were
previously trained to do (and Carter and Hickman could
have been trained to do). I conclude and find that the
General Counsel has made out a prima facie showing suf-
ficient to support inference of discriminatory motive as
to McCoy as well. The General Counsel correctly ob-
serves that once the General Counsel has established
such a prima facie case, the burden is on Respondent to
establish bona fide reasons for its actions, indeed that it
would have laid off McCoy (and Carter and Hickman as
well) in any event, Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980). See also Central Mer-
chandising Company, 194 NLRB 804 (1972). 1 turn now
to Respondent's contentions and evidentiary offerings in
support.
2. Respondent's defense
a. Inhouse orders
Company records show that the Employer had re-
ceived one significant order increase on May 10. In-
volved actually was a change order from Spokane, at
customer urging, which provided for production transfer
from Spokane of an additional 100 trailer units increasing
the overall total ordered to be manufactured at Albion to
536 units. The customer was Pacific Intermountain Ex-
press (herein PIE). (The first 100 units of such order had
been earlier produced at Albion commencing in Febru-
ary.) Despite the order increase a prior scheduled com-
pletion date of September 30 was retained at this time.
According to Hays, this meant that he would have to
push the Albion plant beyond its designed capacity, but
Hays felt at the time it could be done because of the pro-
duction repetitions that would be involved in building
that many of the same type trailer. PIE had by this time
become the Employer's largest customer, as the Employ-
er wound down delivery on an interim order of (35 simi-
lar) units for another customer, Northwest Transport
(herein NWT).
b. Employee buildup and increased trailer unit goal
Records reveal that commencing on May 10 Respond-
ent engaged in a buildup of its employees from the ap-
proximate (plant designed) complement of 70-75 employ-
ees to the 105 employees listed on the August 28 list im-
mediately prior to August 31 layoff.50 During this
period, after review of order schedule, the Employer
also raised its trailer unit per day production average
(herein simply unit average) goal with the above expan-
sion of the work force from a four-unit average to a six-
unit average goal.
c. The new trailer brake system problems
During May, Respondent had also taken over the in-
stallation of a new brake system for PIE, which system
was engineered by Borg & Beck Company (herein B &
B) and B. F. Goodrich Company (herein BFG). The
brake system was a totally new one in the industry. The
first such brake units had been initially installed by BFG
personnel in February on the 100 units otherwise pro-
duced by Respondent at that time. First units produced
by Respondent with such brake system installed by Re-
spondent were delivered in May. Hays testified that it
soon became apparent to him that the system (still)
needed refinement. Indeed with prior delivered units
now regularly being reported back as experiencing seri-
ous difficulties with their brakes on the road, Hays
became so concerned about Comet's potential liability
from the installation that Hays notified PIE that the Em-
ployer would cease to install the new system. According
to Hays, with BFG assurance that they would assume li-
5O Included are the four drivers who had not been listed on any senior-
ity list prior to July 27, and whose first appearance on the onginal July
27 list postdated UAW notice to the Employer of the start of its organiz-
ing campaign. The clear (late) assignment of sequential clock numbers to
these drivers when placed on the July 27 list in seniority sequence at this
time speaks eloquently in confirming that prior treatment of seniority of
employees separately from drivers was the fact. Hays also acknowledged
that certain part-time drivers, who the record reveals had not worked for
a long time, were removed from the August 28 list after only first ap-
pearing on the July 27 list. Indeed driver Shepard testified that he, Staf-
ford, and Callison (and excepting dispatcher Gage) were the only drivers
employed from January 1979.
1432
COMET CORPORATION
ability if they could train the person installing the new
system, and periodically check the work, Hays found
such an arrangement an acceptable one, and production
was then continued.
On basis of credited documentary correspondence
from BFG from B & B to Employer, I find that it was
on May 29 that representatives of both B & B and BFG
visited the plant and after inspecting and finding an
"automatic slack" adjuster was installed improperly, Ron
Gesquirre of B & B performed an initial training session
for (certain) "hourly people," including specifically em-
ployee Ron Young who was then doing the installation,
and also Cervi. BFG representatives later confirmed in
writing confidence that they (Young and Cervi) had then
enough training to install the B & B automatic slack cor-
rectly. (Cervi however is not a welder, and thus could
not perform the preassembly welding production part of
the brake and axle assembly). Contract delivery schedule
with PIE was at this time rescheduled from September
30 to an unspecified date in October. At this point of
time the ordered, but yet undelivered, PIE units consti-
tuted 90 percent of the Employer's existing backlog.
Final deliveries on this order would not eventually be
made until November. During the overall period there
were many visits by B & B and BFG at first, which les-
sened at the end. There were additional difficulties with
parts which were apparently overcome by June-July,
with installation instruction revision being accomplished
in September by BFG.
In the earlier related BFG correspondence to the Em-
ployer, referring to the May 29 plant visit, but dated
June 29, BFG representative there significantly relates:
If a turnover in production personnel should occur,
please do not hesitate to contact BFGoodrich or
Borg & Beck to perform another training session. A
BFGoodrich representative will periodically call on
Comet's Albion facility to ensure that harmony re-
mains on the installation of the BFGoodrich Power
Screw Air Disk Brake.
d. Certain anticipated orders do not materialize in
August
Hays relates he at this time also became concerned
about obtaining new business that would sustain the
plant's oversized manpower level which was otherwise
inconsonant with a normal attrition. Thus, in June and
July, Albion, inter alia, quoted bids to four of its prime
customers: (1) PIE (in regard to 125-300 units); (2) Caro-
lina Comet, a dealer; (3) North West Transport; and (4)
Yellow Freightlines. However, when certain of these
orders fell through in August, Hays decided that he
would have to make an adjustment of the work force by
a permanent layoff.5
'5 Credible testimony of Hays and intracorporate documentation estab-
lishes to my satisfaction that Spokane was notified on August 2, and Hays
no doubt promptly thereafter, that PIE had decided to defer on its (next)
prospective order indefinitely, inviting renewal of quotes in the second
quarter 1980. 1 am also fully convinced that a pre-August 28 trip of Hays
for new business purpose to North Carolina (acknowledged by Sherman)
had proved similarly unsuccessful. I credit Hays that by this time he had
also been informed that NWT would also not be ordering further in this
period. While Hays' further recollection of having additionally received a
Hays relates that in view of the plant's existing rate of
production currently obtained, it had then appeared to
him that the plant would run completely out of its exist-
ing work in September (somewhat overstated). Accord-
ing to Hays, in order to spread the work out longer and
keep the plant operating, it was necessary for him to lay
off people; and after consultation with Dorgan, he select-
ed and laid off the 22 employees whose names appear on
the August 31 permanent layoff notice. (Essentially Hays
explains that the layoff was made permanent because
there was nothing on the horizon to indicate a repeat of
the conditions under which they had recently, but never
before, operated.) He also revised the production at that
time down from 6 to just under a 4-unit average. How-
ever, it is clear a 4-unit goal was established for the weld
department; and standards (for weld) were created in
September to meet that goal. Respondent denies in ef-
fecting the above layoff that it has discriminated against
welders Carter. Hickman, or McCoy.
3. The countercontentions
The complaint did not allege, nor did the General
Counsel ever contend herein that the August 31 layoff
was itself discriminatory in origin, or advancement.
What is the litigated issue, solely and precisely, is wheth-
er Respondent Employer, given that economic condi-
tions arose at this time warranting a layoff, nonetheless,
in effecting a required cutback in its employee comple-
ment, it has opportunistically laid off union adherents
Carter, Hickman, and McCoy, discriminatorily as al-
leged.
Thus, the General Counsel countercontends that even
despite concession on Respondent's above-asserted eco-
nomic grounds for a layoff, that the termination of weld-
ers Carter, Hickman, and McCoy was discriminatory is
revealed in two major ways: (1) Respondent's manipula-
tion of departmental status and assignments of certain
employees (Altimus, Angel, Bennett, and Richard Sher-
man) in effecting the layoff of Carter, Hickman, and
McCoy, contrary to the Employer's past employment
(and layoff) practices; and (2) by evidentiary showing
made that Respondent's layoff of four welders (following
on the heels of Employer's termination of two welders
earlier) had the effect of simply cutting too deeply into
the weld department's manpower for it to meet even its
own revised production schedule, as is demonstrable
from its own production records and from regular use
thereafter of employees from outside the weld depart-
ment to do welding work. UAW further contends that
the record herein has revealed that Respondent has so
clearly been shown to have manipulated certain of its
own lists and statistics in the presentment of its economic
call on August 27 or 28 from Spokane on still further loss of a Yellow
Freightlines anticipated order to a competitor is, as noted by UAW, at
odds with intracorporate record of notice of same being given by Yellow
Freightlines to Spokane later (September 5), the earlier above-related ma-
terial convincingly supports the notice given employees on August 28 in
explanation of pending layoff, that two large contracts had failed to ma-
terialize "due to customer's hesitancy to purchase equipment during this
economic downtrend." (I observe in passing that loss of Yellow Freight-
lines bid to competitor is not encompassed therein: and I place no reli-
ance thereon.)
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defenses herein that its assertions even otherwise for the
nondiscriminatory selective layoff of Carter, Hickman,
and McCoy has been rendered thereby not worthy of
any credence.
4. The evidence
a. The claimed manipulation of departmental status
and work assignments of employees allegedly to effect
discriminatory layoff' analysis
I begin with statement of the perspective that the
layoff of August 31 was the first layoff at Albion with
which Hays was involved. Hays has testified that he de-
cided that he would lay off by seniority, but would do so
within job classification; that he would keep the most
senior employees, or an employee, e.g., Skip Altimus,
with (contended) special skills or training, discussed
infra. In doing so, Hays compiled a new type seniority
list which Hays eventually of record acknowledged had
never been done before at Albion. Hays also testified that
under the established standards for the weld department
effective in September, the goal of weldment production
for four trailer units a day could be met with eight weld-
ers. On the August 28 list Hays caused the weld depart-
ment to appear to be composed of 13 welders. (Not in-
cluded was an additional welder, D. Hull, hired on July
23, who was terminated on August 23.) On August 31
welders Carter, Hickman, McCoy, and R. Hovarter were
laid off. Additionally listed welder Taylor Watts Ill,
with hire date of June 4 (thus with less seniority than
McCoy), terminated on August 29. Thus, after Hays' an-
nouncement of pending layoff Respondent had reduced
its welder force by five welders; but, in real substance
and effect it had reduced its welder force by six welders
within but 5 days of the announcement of need for
layoff. Not listed in the layoff was Skip E. Altimus who
inter alia regularly performed weld work.
Employee Skip E. Altimus was hired on July 27 as a
welder. Within a few days Altimus was moved onto the
axle-and-brake assembly job for which I find he had been
initially hired. Thus Ron Young, the employee first as-
signed to this job and originally trained by B & B and
BFG, had quit about 3-4 weeks earlier on July 2, after
Young had become discouraged by continuing difficul-
ties of the job. Before leaving, Young had trained an-
other employee, Buford Owens, who then took over the
job. Owens had also received subsequent training on the
job from a BFG representative; and, according to Sher-
man, whom I credit, Sherman and McCoy received simi-
lar training on this job at the same time as well. Howev-
er, I credit Hays that he was unaware that McCoy had
ever received any such training on that job; and McCoy
never subsequently performed the job. Owens did not
last on the job; and it was Sherman who next was as-
signed to and worked on the job for about a week before
Altimus started performing the work after an initial
training on the job provided by Sherman.
Sherman confirmed that it was within a week of the
hire of Altimus that Cervi had told Sherman that Alti-
mus was hired for that job. Sherman also testified credi-
bly that he had no authority to assign a welder to that
job; and that his understanding was that a man could
start to build the axle-and-brake assembly (without re-
ceiving BFG training first), but the Employer wanted
the assigned employee to have BFG training eventually.
Sherman, corroborated by Altimus, testified that he ini-
tially trained Altimus, but, so far as he knew, he was the
only one to do so. Be that as it may I am convinced that
Altimus' work on the new axle-and-brake assembly was
approved by BFG as was the work of employees per-
forming this job before him.5 2 Altimus would perform
this work until he himself was laid off in a second major
layoff which occurred much later on December 7. That
layoff brought the plant's working complement down to
35 employees. Hays explained that with production then
down to a trailer a day, he concluded that he could no
longer justify the expense of a specialist. Moreover, at
this time Respondent was without orders; and it was
building 100 trailers on speculation of likely sale. The
trailers thereafter produced were marked for subsequent
appropriate inspection before delivery. With Altimus'
later refusal of a recall because of other employment,
others, after first being trained, received further training
from BFG.
In July-August there had also been a parts shortage on
the brake components. The trailers were produced so far
as could be done; and then overflow of incomplete trail-
ers was parked on the Employer's lot. Altimus eventual-
ly worked this overflow back to his own work station.
Prior to the layoff of August 31, Altimus was regularly
working 4-5 hours daily on "axle and brake assy" and 3-
4 hours in the weld department on "sills," which he con-
tinued to do after the August 31 layoff through Septem-
ber. Starting in early October, he regularly worked at
least 6.25 hours (discussed infra), if not more in the 2
weeks immediately prior to Carter's rehire on November
1.
Essentially, the General Counsel argues that there is
an inconsistency in the above retention of the less senior
welder Altimus, and a departure from (earlier) Dorgan
representation case testimony that the Employer's layoffs
were accomplished by department and seniority, without
s2 Although Altimus conlfirmed Sherman. that Sherman was the only
ione to) train him, Altimus was showvn in prior statement to have made
declaration that he received training on the job froim a P'IE representa-
tise. At the hearing. Altimus disclaimed the conflicting statement as one
erroneously reflecting his own declaration, ascribing that statement to
what he understood at the time had been said of him by others, but that
it was not so. Although the statement had been taken under concededly
unplanned and personally interruptive circumstances, it was nonetheless
affirmed by Altimus at the time. On the other hand there was no evi-
deuce in this proceeding otherwise of PIE having trained anyone ton this
job, theretofore, or thereafter Hays seemingly asserted that Altimus was
trained by both BHFG and B & B; but [lays also ackniowledged he never
personally saw Altimius trained. Foreman Tucker recalled Altimus being
trained out on the lot by BFG representative Wooid; but recalled it as
being in June, thus well befoire Altimus was even hired and at a time and
place seemingly monre indicated lon this record that Wood was with
Owens. In sum, there is thus much confused testimony, indeed, seemingly
contradictory statements in regard to any additional direct training that
Altimus may, or may not have been afforded by BFG. B & B, or PIE. I
need not resolve same as I am fully satisfied that the record sufficiently
has established otherwise that the work of Altimus on the "axle and
brake assy" job was subsequently approved by BFG in Chicago, in one
form otr another. (This finding is based on credited testimony of Altimus
iof receiving such report from Cervi, and Sherman corroboration of same
further from Hays, though received after the layoff.)
1434
COMET CORPORATION
interdepartmental bumping. Thus, in view of Altimus
being less senior than all four welders laid off and par-
ticularly than McCoy who had also been trained in that
job, and than Carter and Hickman who (according to
Sherman, whom I credit) were capable welders and who
could have been trained as Altimus was, Altimus was im-
properly retained in order to effect release of these
senior welders, who were involved with the Union, so
argues the General Counsel. In that connection, the Gen-
eral Counsel would have it noted that the appearance of
Altimus under heading of "Axel (sic) & Brake Assy." on
the August 28 list separate (for the first time) from weld
department, while still being carried on other company
records as a welder (e.g., on his timecards through Sep-
tember 8; and in regard to pay increase on August 29)
reveals that there was a manipulation of Altimus' status
to retain him over the more senior welders who were in-
terested in the Union. Respondent answers essentially
that Altimus was retained simply and solely because of
the job he performed and his special and (argued) sole
training in it.
In my view the above circumstances present a close
question, but one on which I do not find myself ultimate-
ly persuaded by the preponderance of evidence to an ac-
ceptance of the General Counsel's (and UAW's) conten-
tions over Respondent's explanation for retention of Alti-
mus. Thus, while the timing of the appearance of Alti-
mus under Axle & Brake Assembly separate listing is sus-
picious, and particularly so in the light of other findings
hereinafter made as to that same list, it is clear that this
work station "axles" on manpower assignment listing had
fluctuated in the prior 2 months from appearing under
parts (June 22) to appearance under the weld department
(August 3); and in each instance, it was separately listed
thereunder. The General Counsel's own evidence and
position was that it was Respondent's practice in layoff
to retain welders, if at all possible. Hays did not know
(as found) that McCoy had had any prior training in this
job; and if Cervi knew, he no less had hired Altimus for
that job despite that as a consideration. Although some
welding is involved in the job, major welding ability is
not. McCoy was not shown especially active in union af-
fairs, nor is showing made of Respondent's awareness of
same. Carter and Hickman had never performed this job,
nor were they trained to do it. But even more persuasive
on the ultimate point, Hays has testified generally and
persuasively so, essentially that he was not about to
expose the Employer in any way to any liability on this
project. Given the above unquestionable and ongoing
difficulties with installing this innovative brake system,
one that had reportedly failed in trailers all over the
country and was being continuously adjusted and re-
fined, with BFG more recently reported satisfaction with
Altimus' present assembly of the units, I conclude and
find that the retention of Altimus by Respondent was
simply pursuant to a management decision made at this
time that I am convinced it reasonably appears would
have been made by it, in any event.5 3 However, Re-
53 E.g., the General Counsel does not appear to question the Employ-
er's election at this time to retain It. D. Sheets, on seniority list of July 27
shown as hired in assemhly, hut listed in separate (normally) electrical de-
spondent's actions otherwise taken in connection with
this list and with the layoff of welders at this time are
quite another matter, as we shall see.
With the layoff of Carter, Hickman, McCoy, and Ho-
varter (and with the intervening terminations of Hull and
Watts), according to Respondent, the weld department
consisted of the following eight welders:
(I) M. Bennett
(2) R. Sherman
(3) T. McGuire
(4) L. Hurley
(5) T. Angel
(6) D. Delong
(7) K. Sherman
(8) R. Detwiler
I begin with observation that in contrast with prior
layoffs where attempt was made to retain welders if at
all possible, in this instance, this layoff unquestionably hit
hardest in the weld department and it was made a per-
manent one. But even the above immediate observation
does not reflect the full import of the nature and effect
of this welder lineup.
For months prior to August 28, M. Rennett had been
working in the maintenance department (conceded by
Cervi, and fully supported by company records); and
Bennett had worked essentially on maintenance repair,
only part of which involved welding. I find that prior to
his August 28 listing in the weld department, Bennett
was a full-time employee assigned to the maintenance de-
partment, not the weld department. Again in passing, I
observe that in contrast with prior employer practice of
retaining skilled welders by temporary assignment to do
maintenance work, here we have instance of the very re-
verse, viz, a reassignment of a maintenance employee to
the weld department to take the place of a welder to be
displaced by permanent layoff. Bennett for the next
month and a half would work mainly on running gear
theretofore performed by Carter and Hickman. (I also
observe that, despite a major layoff in December, Ben-
nett was returned to maintenance.)
Similarly, Angel, prior to August 28 (I find) was as-
signed to the final department and had been so since late
1978. Indeed Angel had relinquished his representative
status for the weld department on the Shop and Safety
Committee upon transfer, though he then became such
for the final department. I conclude and find that Angel
was a full-time employee assigned to the final depart-
ment, not the weld department. In that connection, nei-
ther can the clear inconsistency of position be over-
looked in Respondent's asserted base for inclusion of
Bennett and Angel in the weld department at this time,
viz, because they performed weld work, while simulta-
neously excluding Altimus who also performed weld
work. Indeed Altimus performed more weld work in the
weld department, and far more regularly than had either
Bennett or Angel in the same prelayoff period. Conse-
quently I am constrained to reject Respondent's offered
base for an initial listing at this time of Bennett and
Angel in the weld department; noting further, that Re-
spondent's avowed practice and procedure did not pro-
vide for any interdepartmental bumping on seniority
partment for the first time on the same August 28 list, despite Sheets'
even lower seniority.
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis. Moreover, even with this listing of Angel in the
weld department, it is seen to be but a surface present-
ment. Thus, for a time Angel continued to work wholly
in the final department; and he worked at all times prin-
cipally there, and by far (7 hours a day). Thus the Gen-
eral Counsel would have it concluded, and I am persuad-
ed to find, that the above reduction of five welders after
layoff notice actually (conservatively) had reduced the
weld department work force as listed by at least 38 per-
cent; and with reasonable exclusion of Angel who had
theretofore performed little or no work in the weld de-
partment, and thereafter, at best, very limited work in the
weld department, there had been more realistically a re-
duction of 41.5 percent. 5 4
The same stands in ready sharp contrast with a simul-
taneous but 28-percent reduction in the assembly depart-
ment. Especially is this so in the light of prior layoff
practice which was collaterally to lay off the less-skilled
employees first. It is acknowledged by Respondent that
its summer buildup assembly hired were generally less
skilled. Nonetheless, Respondent would explain the re-
stricted number of assembly personnel laid off on this oc-
casion vis-a-vis welders on the basis that Respondent, due
to its unusual overexpansion, was then working two as-
sembly lines through final; and thus it had retained more
than the normal (one line) assemblers to handle that plant
production circumstance in a fiscally sound way; in
short, a managerial decision, seemingly not otherwise
contested by the General Counsel, and with which, on
this record, I find no quarrel. I shall not rely on such
percentage comparisons. However, I shall continue to
address the discrepancies of Respondent's position in
regard to its welder force, otherwise.
In the week following layoff of August 31, Sherman
was on I-week vacation, long previously scheduled and
authorized. Contrary to his prior assigned duties as a
leadman5 5 under which Sherman in the past had done ir-
regular and limited production work himself, on his
return from vacation, Sherman was required to regularly
perform production work in the weld department some
6-7 hours daily. This requirement would continue until
Carter's rehire on November 1. In the interim, it is clear-
ly established on the record contrary to lesser summary
recollections of Hays, that employees outside of the weld
department regularly performed welding work in weld
department for significant periods of time in the months
of September and October, 5 6 extending even significant-
s4 With Bennett's exclusion who had not worked in the weld depart-
ment at all for months, there would be seen a 45-percent reduction of the
prior existing welder work force; and with a consideration of the Hull
intervening termination the percentage reduction in welder force but
grows.
65 Sherman's job as weld leadman theretofore had included setup and
check of the work of the welders; supply and check on parts and materi-
als; and various production paperwork reports.
s6 Thus parts department employee (former welder) West worked
some 100 hours in production welding, mostly in September, beginning
almost immediately on September 6, and extending over the month
through September 27. (Hays was observed to become defensively an-
tagonistic on West's assignments.) Driver Shepard, who testified he had
never worked in the weld department before, recalls he and driver Staf-
ford worked about an average of 2 3 days a week from mid-September
through December. Driver Stafford, in a 2-week period in late Septem-
her-early October, worked 4 5 days a week in the weld department; and
driver Callison worked 5 straight days, 8 hours a day, in the weld depart-
ly after rehire of Carter on November 1 and Hickman on
November 5.57 Under such circumstances I find very
little of persuasion in Respondent's additional urging that
it is not shown to have rebuilt its welder work force in
the interim.
Respondent would further seek to defend its layoff of
four welders at this time because of a claimed existing
weldment stockpile summarized by Hays overall as being
enough for six trailer units. However, Sherman testified
credibly that a stockpile of weldments was always de-
sired, and 2-3 days supply, a weld department goal.
Thus, a stockpile of weldments for six trailers was well
within normal (even on four-a-day base) as related by
Sherman; and certainly well within Cervi's confirmed
goal of a desired week's leadtime. As to any suggestion
in this record of a particularly excessive lead on running
gear, I would only further observe the incompatibility
thereof with Carter and Hickman (who worked running
gear) being called in to work overtime, on very day of
layoff.
The fact of the matter is that not only Sherman, but
General Foreman Bon Tucker, at least at one point, have
acknowledged their own prior evaluations expressed to
Hays was that the layoff went too deep in the weld de-
partment for it to produce the weldments for the sched-
uled four trailer units a day, an evaluation I find other-
wise fully supported on review of Respondent's own
records and standards and which warrant ultimate find-
ing there existed welder shortage. 5 8
When Sherman, upon inquiry, made known to Blan-
kenship his held view that the weld department had been
cut too deeply to meet schedule, Hays called him to the
office in early October and they reviewed the welder
work force status. As earlier noted 65 man-hours were
required per day, per established standard. Sherman was
of the view he was one man short. Hays made it clear
that Sherman could schedule Angel (listed in weld) I
hour (but also) Altimus (not so) 6.25 hours (who Sher-
man was already partly using). Sherman has remained of
the view that the weld department had been cut too
deeply. I agree. With assignment of available hours to
existing manpower it is then observed 61-62 hours at
best were to be made available.5 9 The same is but fur-
ment in early October. I find none of these drivers had previously been
assigned to work in the weld department. Hays' seemingly one-time as-
sertion of seeing drivers work in the weld department in July-August
was in any event self-contradicted of record and in conflict with other
credited evidence.
a7 Carter recalled that on his return Stafford had worked for 2 weeks
in the weld department, pretty steady. Hickman essentially confirmed
that, after his return, drivers Shepard and Callison worked regularly in
the weld department about 2-3 days, and Stafford about every other day
'o Under the September standard, 16.25 hours were required to pro-
duce the weldmenis for a trailer unit Goal of four such units a day for
the weld department required 65 man-hours a day in the weld depart-
ment to reach September goal (over 19 workdays) 1,235 hours would be
called for. In September only 995 were expended. Since one man in this
work period would account for 152 hours on 8-hour per day basis, and
since the difference between standard projection and actual was 240
hours, a clear one and one-half man shortage is shown present without
consideraion of the identity of the manpower assignments to the weld de-
partment (e g., Bennett from maintenance) and supplemental assignments
made in this period, e.g., the 90-100 hours of West alone.
59 Bennett (8), R. Sherman (6-7), McGuire (8), Hurley (8), Angel (1),
Delong (8), K. Sherman (8), Detwiler (8) and Altimus (6 25), a total of
Continued
1436
COMET CORPORATION
ther confirmed by a comparison review of unit goal
reached per workday in each month with welder force
for that month. Thus, Respondent did not come closer
than 3.7 unit average in the period February-May with
10 welders. Indeed, Respondent did not reach 4 unit
average until June with 13 welders (excluding Bennett,
Sherman, and Angel), though it thereafter sustained 4.8
with 12 welders in July (excluding the same); and
achieved 5.3 in August with 13 (excluding the same and
Altimus). Finally, Respondent has advanced considera-
tion of other general managerial principles, e.g., welders
increased production on learning curves, again with
which I have no quarrel. To be sure it attained to 3.8
and 3.9 unit average in September and October. The un-
convincing feature of this argument is not just the weak-
ness of the generality thereof in the face of Respondent's
own established standards and specific records, but is fa-
tally defective in not ruling out the ongoing contribu-
tions of nonweld personnel to weld overall production.
This matter need not be further belabored,6 0 as I am
convinced, and I find, that though Respondent has
shown that a layoff at this time was economically dictat-
ed, Respondent has failed to show with convincing evi-
dence that it would have laid off all four welders in any
event; indeed its own records and the record herein con-
sidered as a whole have rather fully convinced me that
Respondent, following its layoff of four welders, had re-
mained demonstrably at least one welder short through-
out; and its transfer and substitution of a maintenance
man (Bennett) for another welder at this time flew in the
face of its own prior practice. I thus further conclude
and find that Respondent has not established that it
would have laid off the two most senior welders, in any
event, who not unrelatedly are observed to have been
the two most active, vocal, and visible union leaders,
Greg Carter and Hugh Hickman. I am not, however,
similarly persuaded as to McCoy. His union activity was
seemingly no more than Hovarter whose layoff is un-
questioned. Economic justification was shown for Alti-
mus' retention. Rather I am convinced and I find that,
on the basis of Respondent's production orders, records,
standards, and plant history shown, it reasonably is made
to appear that, in its showing that economic grounds ex-
isted for a retrenchment from its overexpanded plant
work force at this time in any event, Respondent has suf-
ficiently shown similar grounds existed for a reduction of
its expanded welder work force to the extent the same
has not been shown, demonstrably and discernibly, as
being discriminatorily motivated. For all of the above
61 62 hours, still daily short of 65 per standard. Even then I hasten to
add the same does not take into account the transferred (use of) Bennett.
the altered use of Sherman in production, the increased use of Angel and
Altimus, and the supplemental regular assignments of West and the three
truckdrivers.
e0 Respondent (and UAW) have advanced a number of
documents/contentions which in my view are more related to an issue of
a need for a layoff, or for such at a particular time, rather than materially
bearing on the alleged discriminatory selection of individuals. Conten-
tions and arguments of that nature, which are not recited herein, have
been duly considered and found without merit on the issues presented In
that connection, however, I need not reach nor do I evaluate the UAW
claim that discrepancies and inconsistencies in records advanced and
relied upon by Respondent herein are of such nature as to warrant rejec-
tion of Respondent's defenses in their entirety
reasons, I therefore conclude and find that the selection
and permanent layoff of welders Greg Carter and Hugh
Hickman was brought on because of their active union
adherence, and thus discriminatorily motivated in viola-
tion of Section 8(a)(3) and (1) of the Act. I shall, howev-
er, recommend that the complaint allegation, insofar as it
also alleged the same as to Martin McCoy, be dismissed,
as not sustained by the preponderance of the evidence.
D. The Alleged Refusal To Bargain: The Requested
Bargaining Order
I. Unit issues
The parties stand in basic agreement on a production
and maintenance unit as appropriate. However, the Gen-
eral Counsel and UAW would exclude four truckdrivers
(Thomas M. Gage, L. Shepard, E. Callison, and T. Staf-
ford), while the Employer would include them. The par-
ties have also stipulated otherwise as to the basic compo-
sition of the unit as of August 16 except that they have
further reserved on the placement within the unit of two
additional employees, K. Wogoman and R. Winebrenner,
whose status appeared questioned on the basis of being
temporary summer help students who lack a community
of interest with unit employees and thus whom the Gen-
eral Counsel and UAW would exclude, but the Employ-
er, in disagreement, include. UAW has additionally con-
tended that one driver, Thomas M. Gage, should be ex-
cluded in any event as a supervisor; and the General
Counsel has contended as to K. Wogoman that the status
of the evidence offered on K. Wogoman does not permit
inclusion. The Employer would include both Wogoman
and Winebrenner.
The record reveals that Thomas M. Gage has been
employed by the Employer since 1976, but also that
Comet has leased required trucks and trailers from Gage
Transport Company (of which Thomas M. Gage is presi-
dent) since January 1, 1978, under written lease. Gage
Transport Company is paid a brokerage fee for the serv-
ice. Gage maintains a desk on Respondent's premises, but
no office presently elsewhere though apparently such
was planned at time of hearing. Driver applicants have
been brought in by Gage, are tested as to driving ability
by Gage, who makes recommendations to Dorgan as to
hire. Gage's recommendations have always been fol-
lowed. While driver Shepard has testified that he may
select a job, e.g., freight pickup, on the basis of his se-
niority, he also testified that Gage is like a dispatcher
who tells the other drivers where to pick up the freight
or what order to take, and that Gage (who is the most
senior driver) may assign certain work to himself.
Dorgan, however, testified credibly that he supervises
the drivers (as well as five material handlers) and assigns
work to Gage who relays it to the drivers, with much of
it being established (presumably on basis of seniority
choice). On the entire record I conclude and find that
drivers theretofore had tneir own seniority separate from
other unit employees and were not previously represent-
ed on the Shop and Safety Committee as other employ-
ees were.
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The drivers involved herein are essentially over-the-
road drivers who clearly possess the functionally distinct
skills usually to be found associated therewith. Thus,
they transport trailers when produced interstate to var-
ious delivery points in distant cities in the Midwest or
central States. They also pick up freight (materials and
supplies) from out-of-state locations and return it back to
the plant. They hook up and unhook trailers, and may
also occasionally unload freight at the plant, as the mate-
rial handlers normally do. However, on such occasions,
the drivers have usually arrived at off hours for the plant
employees and usually do so as a matter of their own
convenience in order to expedite moving on to the next
assignment. They are not paid extra for this work. The
drivers usually leave at midnight to pick up freight, and
between midnight and 3 a.m. to deliver trailer units, but
may perform their duties at any hours of the day or
night. While the record reveals that Dorgan supervises
both the drivers and material handlers (and office cleri-
cals) the over-the-road drivers (excepting Gage) are usu-
ally away from the plant without direct supervision.
Unlike the production and maintenance employees
who punch a timeclock, essentially work one shift (e.g.,
6 a.m. to 2:30 p.m.), may occasionally work a Saturday
in the summer, are hourly paid and receive overtime
pay, the drivers do not punch a timeclock, are paid on a
mileage basis, do not receive overtime, essentially con-
trol their own worktime, and frequently work Saturday
and Sunday.
There have been no transfers of plant production em-
ployees to become drivers, or vice versa. Prior to
August 31 drivers otherwise did not perform any pro-
duction work in the plant, and though certain drivers in
late August-early September have worked in the plant,
e.g., in a week to 10-day period on painting the restroom
and putting up a lunchroom wall, the General Counsel
convincingly argues that the use of three of the drivers
otherwise regularly on weld work (as found above) was
but part of Respondent's discriminatory elimination of
union activists Carter and Hickman, and should be sub-
stantially discounted on that account. I agree. I observe
in any event that essentially all of their work in the plant
postdated union demand for recognition made on August
16.
While paid on a mileage basis for performance of
normal driver duties, drivers also have an hourly base
rate established at which they are paid if load/unload
duties are excessive (itself very unusual). Drivers have
received pay increases at the same time as the Employ-
er's other unit employees. However, their contact with
plant employees is shown minimal, as they usually only
walk through the plant to the office to pick up their pa-
perwork, and, contrary to urging of the Employee, evi-
dence of record as a whole (including credited testimony
of driver Callison) warrants finding that the drivers do
not eat meals in the plant; and they do not have their
own lounge but perform their required paperwork in the
truck. As earlier noted, I am convinced on this record
that drivers have heretofore had their own seniority sep-
arate from other employees; and I am also convinced
they were not previously represented on the Shop and
Safety Committee. Respondent would have much made
of the fact, which I find, that Carter asked drivers Calli-
son and Stafford if they were going to sign a card; and
they did not. Respondent would argue (presumably)
same as being indicative that extent of organization was
the controlling factor in the Union's seeking to exclude
drivers. 6 1
There has been no history of collective bargaining at
this plant. The case situation presents the oft-repeated
one of presence of a dual community of interest of truck-
drivers with some factors supporting inclusion and some
exclusion. However, I am fully convinced that analysis
of all the above facts warrants overall finding that the
truckdrivers here are essentially a functionally distinct
group possessing different skills and qualifications from
production and maintenance employees; that they nor-
mally have little or no contact with other employees,
have substantially different work hours and conditions,
are paid differently, and do not perform production
work on a regular or substantial basis. Accordingly, I
shall exclude them. Pacemaker Mobile Homes, 194 NLRB
742 (1971).62 In view of findings above reached I need
not address other individual issues in regard to Thomas
M. Gage as a supervisor, and/or his business relationship
being such as to warrant conclusion he lacked communi-
ty of interest with other unit employees because of
unique or special relationship to Employer.
As to the status of R. Winebrenner the same need not
be belabored. I find that R. Winebrenner, after complet-
ing 2 years of college, was hired on May 9 as summer
help, with Winebrenner stating intention of returning to
college to the Employer and the Employer's approval of
hire of Winebrenner being as temporary summer help.
While it is true that Winebrenner subsequently inquired
of permanent employment opportunity with the Employ-
er in view of an anticipated operation that would pre-
clude his return to college that year, it is clear of record
as well that the conversation thereon with a supervisor
did not occur until clearly after the Union's demand for
recognition. I thus conclude and find that R. Winebren-
ner is to be excluded as occupying student temporary
summer help status and thus at that time lacking comnmu-
nity of interest with the other production and mainte-
nance employees. Crest Wine and Spirits, Ltd., 168
NLRB 754(1967).
The matter of K. Wogoman, as it turns out on this
record, presents a different issue, one of identification
and thrust of evidence. From the July 27 seniority list it
is clear two individuals named Wogoman with first initial
"K" were hired. Thus Kirby Lee Wogoman (with clock
number 20729) and Kirk A. Wogoman (with clock
number 20730) are (both) shown hired on May 17 in as-
sembly. However, Kirby Lee Wogoman is there addi-
tionally identified as being summer help, and Kirby Lee
Wogoman is also shown to have quit on August 24.
There is no such notation as to Kirk A. Wogoman. On
the employee list by seniority within classification posted
61 I reject any such reliance on the discourse between Albright and
Gage on July 31 which was a confrontation between them and at a time
when Gage's driver status (I find) was unknown to Albrighl
62 See also Kalamazoo Paper Box Corp, 136 NLRB 134 (1962); and
Ballantine Packing Company. Inc., 132 NL RB 923, 925 (1961)
1438
COMET CORPORATION
August 28, a K. Wogoman appears listed under assem-
bly. Contrary to urging of the General Counsel and
UAW the single K. Wogoman reserved is not reasonably
shown to be summer help (like Winebrenner) nor does
the thrust of the evidence show K. Wogoman to be
other than an assembly employee on August 16. In
agreement with the Employer I shall include K. Wogo-
man.
2. The majority status; the issues of validity of the
authorization card designations
As of August 16 I find that there were 100 employees
in the appropriate unit. As of August 15 the UAW had
in its possession 62 executed single-purpose authorization
cards from employees in this unit, a clear numerical ma-
jority, if the cards are shown to be valid designations of
the Union to represent the employee signers. With one
exception, all the above single-purpose card authoriza-
tions were authenticated properly by the direct testimo-
ny of either the employee card signer, or by the solicitor
to whom a filled out and signed card was returned by
the card signer, cf. McEwen Manufacturing Company, 172
NLRB 990, 992 (1968), 419 F.2d 1207, 1209 (D.C. Cir.
1969), cert. denied 90 S.Ct. 1120 (1970). The one excep-
tion thereto was a card purportedly signed by Roger Lee
White. 63
At the time of the hearing, Roger Lee White was not
amenable to effective subpoena process, since he no
longer resided at last known address when served and
his present whereabouts represented as being presently
unknown to the General Counsel, and presumably un-
known to the Respondent as well by its silence. In those
circumstances, the General Counsel introduced certain
formal documents obtained from Respondent's employee
personnel file maintained for Roger Lee White; thus
forms I conclude reasonably to be found to bear authen-
tic signatures of White. The General Counsel has urged
that a signature comparison be made by this fact finder,
and that the card of Roger Lee White be also found an
authentic execution and valid designation by White on
the strength of the holding similarly made in Cato Show
Printing Co., Inc., 219 NLRB 739, 756 (1975). Analysis
and comparison of the signatures on the documents thus
provided (a W-4 form, State of Indiana Withholding ex-
emption form, and an application for life insurance form)
with the signature of the purported authorization card of
Roger Lee White reveals all signatures on all four docu-
ments readily appear to have the same distinctive charac-
teristics which circumstance, along with consideration of
the source of compared documents, convinces me that
they were all signed by the same person, Roger Lee
White. I further conclude and find it may be reasonably
presumed from the above that the card was signed by
White on the date affixed thereto, namely July 31.
Respondent asserts generally in brief that it has shown
that Albion employees signed their UAW card for only a
National Labor Relations Board election. In support Re-
spondent has otherwise made certain specific assertions
63 Respondent's attack upon printed card of Keven Ellet has been es-
sentially heretofore considered (along with that of R. Marks), and as has
been shown supra at fn 8, is under existing Board authority seen to be
without ment Id. at 993
in regard to the testimony of James L. Brown, Craig
Ball, Robert Feightner, Donald Edsall, Skip Altimus,
Tony Angel, Mike Bennett, K. Bortner, Kerry Sherman,
Randy Gunder, and D. DeLong, which are considered
infra. Respondent also argues that the cards of a mini-
mum of 8 (identified as (B) Leitch, Randy Gunder, R.
Jones, D. Deveau, K. Smith, (T) Swihart, B. Leslie, and
M. Cline), and a maximun of 13 (remainder unspecified)
were signed by employees present at a union meeting of
July 31 at Albion Park where Albright told employees
that the cards would be used for an election. Respondent
contends that the above 18 named employees as a mini-
mum were told by Albright that their card was for a
vote or NLRB election and that they signed their cards
for that single purpose.
As noted, the authorization cards used herein were all
single-purpose cards of nature: "stating clearly and un-
ambiguously on their face that the signer designated the
Union as his representative." The Supreme Court has
stated in regard to such card usage in N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 606-607 (1969), in affirm-
ing the Board's Cumberland Shoe doctrine the following:
In resolving the conflict among the circuits in favor
of approving the Board's Cumberland rule, we think
it sufficient to point out that employees should be
bound by the clear language of what they sign
unless that language is deliberately and clearly can-
celed by a union adherent with words calculated to
direct the signer to disregard and forget the lan-
guage above his signature. There is nothing incon-
sistent in handing an employee a card that says the
signer authorizes the union to represent him and
then telling him that the card will probably be used
first to get an election. Elections have been, after
all, and will continue to be, held in the vast major-
ity of cases; the union will still have to have the sig-
natures of 30% of the employees when an employer
rejects a bargaining demand and insists that the
union seek an election. We cannot agree with the
employers here that employees as a rule are too un-
sophisticated to be bound by what they sign unless
expressly told that their act of signing represents
something else.
The Board's Cumberland Shoe doctrine 64 essentially is
that if the card itself is unambiguous on its face it will be
counted, unless the employee was told the card was to
be used solely for the purpose of obtaining an election.
However, the Board's Cumberland Shoe doctrine, as ear-
lier applied by the Board, itself provided for rejection of
any card where the employee card signer was told in
either specific terms, or in general assurances that were
susceptible to such interpretation or inference, that the
card would be used only for the purpose of getting an
election. In its approbation, the Supreme Court joined
the Board's own caution that a mechanistic approach by
the trial examiner (now administrative law judge) is to be
4' Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd 351 F 2d 917
(6th Cir. 1965), reaffirmed Levi Strauss & Co., 172 NLRB 732 (1968),
enfd. 441 F.2d 1027 (D.C. Cir 1969).
1439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
avoided. Thus the total context must be viewed for pres-
ence of evidence that the language of such card has been
(as now stated by the Supreme Court) "deliberately and
clearly canceled by a union adherent with words calcu-
lated to direct the signer to disregard and forget the lan-
guage above his signature." While acknowledging such,
the General Counsel would (correctly) have it be ob-
served that a subjective motivation of the employee or
the latter's afterthought is a wholly immaterial considera-
tion, Federal Alarm, 230 NLRB 518, 521-522 (1977).
Finally, a significant beginning observation point is the
Court's delimitation of the parameters of its approval of
the Board's Cumberland Shoe doctrine to factual matters
earlier considered by the trial examiner and described in
the Court's own footnote 5, to wit:
Accordingly, I reject Respondent's contention
"that if a man is told that his card will be secret, or
will be shown only to the Labor Board for the pur-
pose of obtaining election, that this is the absolute
equivalent of telling him that it will be used only
for purposes of obtaining an election."
With respect to the 97 employees named in the
attached Appendix B Respondent in its brief con-
tends, in substance, that their cards should be reject-
ed because each of these employees was told one or
more of the following: (1) that the card would be
used to get an election (2) that he had the right to
vote either way, even though he signed the card (3)
that the card would be kept secret and not shown
to anybody except to the Board in order to get an
election. For reasons heretofore explicated, I con-
clude that these statements, singly or jointly, do not
foreclose use of the cards for the purpose designat-
ed on their face. [Id. at 607.]
From the foregoing it is readily apparent that to the
extent Respondent would rely on a mere reference of Al-
bright, Carter, Hickman, or any other card solicitor (es-
sentially) that the card would be used to get an election,
the same is wholly without any merit. I now turn to
other specific contentions of Respondent.
At the outset of the hearing Albright had testified that
he specifically recalled telling the employees assembled
at Carter's home on July 23 that their signing of an au-
thorization card would indicate their desire to have the
UAW represent them with their Employer. Albright was
corroborated by Carter whose recollection further speci-
fied that they were told the cards were going to be used
to show a majority standing, at which time a letter
would be sent to the Company asking them to recognize
their majority status; and that Albright had also told
them that if the Employer refused, the NLRB would be
petitioned for a vote. Hickman corroborated that they
were told the cards were an authorization for the Union
to be their bargaining agent. Hickman also recalled that
Albright said that when a certain percentage (Hickman
recalling it as 50 percent) of the cards were delivered to
him (by the employee organizing committee) that he
would petition the Company to recognize the UAW,
telling the Company they had so many cards signed. If
the Company did not recognize the UAW, the cards
would be used to petition the NLRB for a vote. Called
as a rebuttal witness when certain of his remarks made at
a latter organizational meeting held at Albion Park were
questioned by Respondent, Albright further then testified
in amplication: that he at outset told these employees
that the policy and practice of the UAW in conducting
an organizing drive was that UAW cards were specifi-
cally for recognition; reconfirmed he told them that
when they signed a UAW card it was a desire on their
part that the Union represent them; that he explained the
assistance letter (notification) that he would first send to
the Company about the organization committee before
the campaign was to start; that as the cards came back
and they gained a majority which he explained to them
was 50 percent, plus one or more, that he would send the
Company a letter for recognition, asserting the Union
represented the majority of their employees, and asking
to be recognized to negotiate and bargain on wages,
hours, and working conditions and employment; and that
should the Employer be unwilling to recognize the
UAW, they would be left with no alternative but to then
petition the NLRB to have them conduct an election.
Randy Marks, also present and found to have validly
signed a card at this meeting, recalled significantly that
they might not need to have an election if enough people
signed. Respondent's witness Gunder was evasive when
questioned as to what he recalled of this meeting, and in
any event in sum has testified but that he could not re-
member anything of it. The weight of credible evidence
wholly convinces me that Carter, Hickman, and all other
employees in attendance (including Gunder) were told
nothing that detracted from what the card on its face un-
equivocally stated; that they were also told of the proce-
dures that the UAW would follow in the campaign to
attain recognition, including that there would be letter
notification to the Employer of the start of a campaign
by an employee organizing committee; demands for rec-
ognition and bargaining to be made of the Company
upon obtaining a majority, and that the cards would be
used to support a petition for an election if the Employer
refused recognition claim, all procedures which the
Union subsequently followed herein. Albright testified
that he subsequently held three union meetings, the first
on July 31 at Albion Park, the second at the same loca-
tion in the second week of August prior to the 16th, but
with specific date eluding him, and a third on October 3
at another location. Albright testified that he always goes
through the same routine of explanation at start of meet-
ing which he did at the Albion Park meetings; that there
were question-and-answer sessions, and that if asked he
would have told employees they were not obligated to
vote for the Union in an election. Albright, who relates
he has conducted 20 organizational campaigns, categori-
cally denied he told any employee at any time that the
Union's authorization cards were just for an election; and
that this is something he would never do.
Respondent asserts in brief that James L. Braun has
stated he signed his card because he was told it did not
obligate him to the Union; and that he was told that if
1440
COMET CORPORATION
enough employees signed the card there would be an
election. As to the latter, witness Braun testified that he
was not promised an election, but was told that if there
were enough cards there would probably be an election;
that nothing was mentioned to him about being obligated
in the event there was an election; but rather he was ac-
tually told by the card solicitor that the latter would like
for Braun to sign this (card) if Braun would like to have
the Union in; that Braun read both sides of the card he
was given; that he was also given a union pamphlet and
skimmed over it. Most significantly Braun then testified:
"I wasn't legally obligated for anything, so I signed it."
Braun signed and dated his card July 26, and was clearly
unaffected in doing so by anything that might be shown
to have transpired on July 31. 1 conclude that Respond-
ent's contention that Braun signed a card because he was
told it did not obligate him to the Union is without
record support. I further conclude and find the card of
James L. Braun to be a valid designation of the Union as
his representative.
Respondent argues in brief that Craig Ball stated he
signed his card for an election. Witness Ball testified at
the hearing that he did not remember anything the solici-
tor said to him; that he read both sides of the card; and
has related that he was never told the only purpose was
to get an election. Respondent's attack upon the card of
Ball is without merit. 65 Respondent contends in brief
that Robert Feightner (a witness called by the General
Counsel) stated he was told that if 50 percent signed
cards, there would be an election, and nothing further;
that Feightner stated he knew other people in the plant
signed their cards solely for an election; and that he was
again told the purpose of the card was an election; and
his card did not bind him to the Union if he signed it.
The facts are that Feightner has testified that he had ap-
proached Carter for the card; and that he could not re-
member anything in particular that was said to him by
Carter at the time. Feightner read the card on both sides,
and his card is dated July 26. Feightner has testified that
he was not told the card was for an election; that he had
assumed the card was to get an election; but also related
that he had been told before signing the card that there
would be an election if 50 percent of the employees of
the plant signed union cards, but he did not identify by
whom he was told the latter. However, Feightner has
categorically denied that he was told it (the card) was
only for an election; and record cited simply will not sup-
port Respondent's further urging that Feightner has testi-
fied that he knew other people in the plant signed their
cards solely for an election.
Feightner also denied that he had told Respondent in a
prior taped interview that the person who gave him the
card at the time he gave it to Feightner had told
Feightner that the card did not bind Feightner to the
Union. When subsequently further questioned by Re-
spondent concerning a purported transcript of the prior
6s Respondent introduced in evidence earlier statements of Ball given
Respondent in preparation for this hearing. It is clear therefrom that
Ball's earlier statement was a response to question posed to reveal subjec-
tive motivation at best. In prior statement given the General Counsel,
Ball had confirmed that no one told him the only purpose of the card
was to get an election
interview containing inconsistent statement there fol-
lowed this colloquy with regard to it:
Q. Do you remember me asking you the person
who gave you that card, at the time they gave it to
you did they tell you what they were going to use
the card for? Do you remember me asking you that
question?
A. Yes.
Q. Do you remember your answer being well,
they said it's just survey information of what the
binder wants. Do you remember making that reply?
A. What the binder wants? I don't believe I said
that. I don't remember that. 6 6
Q. Do you remember me saying that they told
you that card did not bind you to support the
union?
A. I don't believe it did bind me to support the
union.
Q. And your answer was yes to that question that
I asked you?
A. I don't follow.
Q. Okay, Mr. Feightner, I asked you the question
if you were saying that they told you that that card
did not bind you to support the union to which you
answered yes.
A. Yes.
Q. Then my question: But specifically they said
when they gave it to you that you sign it and it did
not bind you to support the Union? In answer to
that, again you reaffirmed that's the way I under-
stood it.
A. Yes.
JUDGE ROMANO: What is your answer?
WITNESS: I don't know that the union would
come in automatically to be recognized.
The foregoing considered separately, or as a whole,
does not warrant finding that prior to signing the above
clear designation of the UAW as his collective-bargain-
ing agent that Feightner had been told anything by a
union adherent reasonably to be viewed as a clear can-
cellation of, and a direction to disregard and forget the
language of the card itself. Rather, I conclude and find
the voluntarily sought and freely executed card of
Feightner was a valid authorization to the Union to rep-
resent Feightner in collective bargaining.
Respondent urges in brief that employee Donald Edsall
stated he was told by the UAW agent the card was not
for the Union coming in, but for a showing of interest
(30 percent). Edsall's actual testimony was that the card
solicitor (whom he could not identify) just handed him
the card and asked Edsall if Edsall wanted to fill this
(card) out, and Edsall said he would; and that: "He said
66 Witness Feightner subsequently explained that he was not aware of
the term binder. The witness had not previously been shown the typed
transcript nor consequently been afforded opportunity to raise question as
to it, and/or propose correction of any claimed inaccuracy in transcrip-
tion; and he also testified without contradiction that the tape recorder
was not kept going throughout the interview. The said transcript of the
interview was rejected when offered, placed in rejected exhibit file on re-
quest, but was subsequently withdrawn
1441
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
that this here was not saying that the Union was coming
in but more or less that it was to let them know you was
interested." There was no reference in Edsall's testimony
as to 30-percent showing of interest, let alone use of his
card therefor. Edsall also testified that he had read the
card before he signed it; and Edsall specifically denied
he was told the purpose of the card was just to get an
election; indeed, he denied he was told the card would
be used for an election or to get an election. Respond-
ent's argument that Edsall was told by a UAW agent
that the authorization card was not for the Union
coming in is wholly without merit, as is its assertion that
the solicitation was related to 30-percent showing of in-
terest without evidentiary foundation. I conclude and
find the card of Edsall was a valid designation of the
UAW as his representative. Contrary to Respondent's
urging, employee Skip Altimus testified that he was not
sure if Carter told him the card was for an election or
just to try to get the Union into Comet. Altimus other-
wise testified that he had approached Carter for a card,
that Carter told him to take it home and read it over,
that he read both sides of the card and that he gave it
back the next morning to Carter or Hickman. (The card
is dated August 1.)
Respondent urged in brief that employee Tony Angel
testified that Albright said at a union meeting at Albion
Park that the cards were for an election. Angel's testimo-
ny was that there was some mention by Albright about
an election, but that he could not remember Albright's
words. Not insignificantly, Angel's recollections other-
wise confirmed that Albright talked about getting
enough cards signed, like a majority, and a letter would
be sent to the Company saying there are a majority inter-
ested in a union .6 Kerry Sherman, who related on reflec-
tion that he thought he attended three meetings, testified
that at the first one at Albion Park that Albright said the
card was to get a vote in the factory for the UAW. He
also testified that at the second or third meeting Albright
said they had been denied what they were after and that
they were going to go for a bargaining order with the
NLRB. 68 I conclude and find that the contested authori-
zation cards of Altimus and Angel were each valid des-
ignations of tbe Union as their representative. Sherman
did not sign a card.
67 Donald A. Brown who signed a card on July 26 testified that he
was told by the card solicitor even before he signed a card that they
would take the cards and give them to Albright; that Albright would
write the Company a letter; and if the Company did not recognize the
Union, they would take it to Indianapolis and have an election.
6s Respondent argues that that which was denied was recognition, and
the incident is significant inasmuch as it indicates the Union was going
for a bargaining order before the August 31 layoff This contention
cannot prevail inasmuch as the second meeting at Albion Park was by
overwhelming weight of evidence before demand letter was even sent on
August 16, and a petition was filed before the August 31 layoff It is clear
and I find that K. Sherman attended three meetings, the third being at
the "Eagles Club" on October 3, thus after charges had been filed herein
and after much of the unfair labor practices found herein had occurred,
and at which the same (I find infra) were reviewed with employees. It is
clear from the entire record and I find that it was in that meeting that
Albright said they were going for a bargaining order. This is not to sug-
gest that UAW's pursuit of an organized majority and use of single pur-
pose card was not pursuant to a foreplan to cover just such an exigency,
if it were to arise.
Respondent contends employee Mike Bennett stated
that Albright gave him a card at Albion Park and stated
the card was so employees could vote; and that at a later
meeting Albright changed his mind; and then told em-
ployees that he had no intention of letting employees
vote; that Darrell DeLong also testified that he saw em-
ployees sign cards at the July 31 meeting; and corrobo-
rated Bennett that at a later meeting Albright said to
those present, that since he had more than 50 percent, he
had no intentions of a vote.
At the outset it is to be observed that it is uncontested
that Bennett was on vacation from July 23 through
August 2; and that he was personally aware he had
missed a prior union meeting. I find that it was thus at
the second meeting at Albion Park held about the second
week of August that Bennett refers to in testifying that
Albright asked if any of the employees there had not
signed a Nard, to sign one so we could have a vote.
However, Bennett also confirmed that Albright talked
about sending a letter to the Company. Bennett was not
positive about the exact wording Albright had used
about the letter, recalling at first he was organizing and
notifying them of that fact. Bennett did not think Al-
bright said he had already done so, nor to his knowledge
had referred to a letter to the Company to ask them to
recognize the Union, but thereafter acknowledged that
Albright had said he was going to send a letter to the
Company notifying them of their results of what they
had so far, that is, results of the membership drive so far.
Bennett also attended the third union meeting at the
Eagles Club on October 3. The weight of his testimony
as to that meeting is that at that meeting Albright out-
lined the charges that had been made on the Company's
actions, including the layoffs, and referred to Bennett by
name in connection with his working in Weld, while
welders were laid off, that they were taking the Compa-
ny to court over it; and that Albright said in this meeting
it was never his intention for it to come to a vote, that it
was his intention to have the Company recognize the
Union through the recognition cards that were signed;
and that he said he wanted to get enough authorization
cards to be signed that he could come in without a vote.
Bennett also testified that while Albright had previously
given Bennett a card at the Albion Park facility, Bennett
did not sign the card; and that he remembered that the
card said that he was signing authorization to be repre-
sented by the UAW, and it did not say anything about
an election. I conclude and find there is nothing in Ben-
nett's testimony, considered as a whole, that warrants re-
jection of any UAW authorization cards signed by
others.
Darrell DeLong signed a card on July 30. Called as a
witness by Respondent, DeLong testified that he was not
told what the card's purpose was before he signed it. It
is clear that DeLong initially designated the UAW as his
representative. DeLong attended the July 31 meeting at
Albion Park. He testified that at that meeting Albright
introduced himself, said that some of the people had no-
tified him that there was an internal shop move to obtain
a union; and Albright told them (15-25 employees) that
the purpose of the card was to obtain an election and
1442
COMET CORPORATION
then he answered a lot of questions, including (I find)
that even if you did sign a card that you were not obli-
gated to vote yes or no, for or against the UAW. How-
ever, significantly, DeLong confirmed that Albright told
them that he would be asking the Company to recognize
the Union if they got a majority support from the em-
ployees, to do so voluntarily without an election.
DeLong testified he saw employees sign cards at this
meeting, but could not recall any by name who did so.
DeLong recalls that he attended a meeting a week or so
later and at that meeting that Albright said that he had
more than 50 percent of the cards, that he really had no
intentions of using the cards to obtain a vote. However,
DeLong again testified that at this second meeting Al-
bright also told them he would be contacting the Com-
pany asking them to recognize the Union if he got a ma-
jority of the cards, later again clarifying Albright would
contact the Company (to) have the Company voluntarily
recognize the Union without an election. Review of the
testimony of Randolph Jones who signed a card on July
25, Eugene L. Deck who signed a card on July 30, Kelvin
D. Smith who signed a card on August 1, and Terry Swi-
hart who signed a card on August 15 reveals nothing
that would warrant rejection of their cards. I conclude
the cards of Jones, Deck, Smith, and Swihart are each a
valid designation of UAW as their representative. As to
the remaining employees whose cards are sought to be
questioned by Respondent on the basis that they were
present at the July 31 meeting, none have additionally
testified excepting Ron and Kevin Bortner and Randy
Gunder. It is clear that properly authenticated cards ex-
ecuted prior to July 31 were unaffected in their original
execution by any statements that might have been made
by Albright (or others) on July 31. Included in this cate-
gory are: executed cards of James Owens and Steve Todd
(each dated July 25), and of Denver Slone and John Meyer
(each dated July 26) properly authenticated by Greg
Carter; and the card of Ralph W. Detwiler (dated July 25)
and of Reginald Lazar (dated July 26), properly authenti-
cated by Hugh Hickman. I find that they are valid desig-
nations of the UAW as their representative. As to the ad-
ditionally questioned cards of David Deveau (dated
August 1), Mike Kline (dated August 6) and Brian Leslie
(dated August 15), who did not testify but whose card is
each properly authenticated by Greg Carter, I would
only additionally observe that absent a showing of some
warrant therefor appearing from the testimony of Kevin
and Ron Bortner and Randy Gunder remaining to be
considered whose cards are also questioned by Respond-
ent, there is no warrant to reject the cards of Deveau,
Kline, and Leslie as valid designations of UAW as their
collective-bargaining representative. (The record does
not reveal that White attended or signed his card at the
July 31 meeting.)
I thus find myself in essential agreement with the Gen-
eral Counsel and UAW observation that Respondent has
presented essentially only two witnesses (Kevin Bortner
and Randy Gunder) whose testimony might be viewed
as raising issue in regard to statements of a representative
or solicitors that authorization cards were to be used
"solely," "just," or "only" for an election, or its equiva-
lent. The General Counsel and UAW contend their testi-
mony is incredible, on several scores.
Thus, the General Counsel contends (with much
record support otherwise above shown) that the record
is devoid of any credible evidence that any card signer
was explicitly or even indirectly told at the time he was
signing his card by a union organizer or card solicitor
that his card would be used "just," "solely," or "only"
to get an election, nor do the "totality of the circum-
stances surrounding the card solicitations add up to an
assurance to the card signer that his card (would) be
used for no purpose other than to help get an election."
The General Counsel also contends that the stories of
the only two witnesses of Respondent (suggestive of the
contrary) smack of contrivance and are subject to serious
credibility problems. The Charging Party additionally
would have noted that the words "only" or "just" (as
raised by these two witnesses) arose solely in the context
of statements given to agents of Respondent many
months after the events and in response to leading ques-
tions used by the agent; and in that connection would
rely on Supreme Court holding that:
We also accept the observation that the employees
are more likely than not, many months after a card
drive and in response to questions after a card drive
and in response to questions by Company counsel,
to give testimony damaging to the Union. [Gissel.
supra at 606, 608.]
The Charging Party further contends that evidence of in-
terviews conducted which is of record is clear indication
of the way in which the questions were designed to sway
the employees and put ideas in their minds. In addition
the two witnesses were together at this interview and it
is not clear which of them said what. In a seeming but
not explicit concession of some infirmities in witnesses'
Kevin Bortner and Randy Gunder evidence, Respondent
has, in any event, not advanced contention in brief that
Albright in haec verba told the employees the card when
signed was to be "just," "solely," or "only" for an elec-
tion. Respondent does advance contentions in brief that
Kevin Bortner stated that at the July 31 meeting Al-
bright promised the employees that he would take the
cards to the NLRB; that Ron Bortner stated Albright
said that if he got enough people to sign cards he would
send them to the NLRB to get a vote; and that Randy
Gunder stated that Albright said if a majority signed
cards, he would go to the NLRB for an election, and
then they would vote on whether they wanted the Union
or not.
Leadman Randy W. Gunder attended three union
meetings, viz, the meeting at Carter's home on July 23,
and both meetings at Albion Park. Gunder did not sign a
union card until the first meeting at Albion Park on July
31. Gunder acknowledged that he read both sides of the
card that he signed; and that he was also given union lit-
erature, though he did not read it.
Greg Carter confirmed that he gave a blank card to
Gunder which was returned to him after being executed
by Gunder; and that he then gave the card to Albright.
The card of Gunder is compatibly dated July 31. Carter
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also testified that he gave a blank authorization card (and
union pamphlet attachment) to both Ron and Kevin
Bortner; and Carter authenticated the executed cards
which both subsequently returned to him. The card of
Ron Bortner is dated July 26, and that of Kevin Bortner
is dated July 25. Ron Bortner confirmed that Carter had
given both him and his brother a card in the employees'
parking lot at the same time. Initially, Ron Bortner testi-
fied that Carter said that it (the card) was to see if we
would get enough percentage of the plant so that we
could get a vote to see whether we would get the Union
in or not. However, thereafter, on cross-examination,
Ron Bortner related that Carter had just said to take the
card home, fill it out, and bring it back in the morning.
Ron Bortner acknowledged that he got a blank card
from Carter; that he read both sides of the card; dated
the card and signed it at home the following morning;
and that he turned it in to Carter that morning when he
got to work. Initially, Ron Bortner had placed such
morning as being the very morning of the Albion Park
meeting of July 31. However, by virtue of the date ap-
pearing on the card which he has acknowledged entering
on the card, his own subsequent reflections, affirmances
and then clarifications thereon, and the other above-de-
scribed circumstances I am wholly convinced that Ron
Bortner had earlier simply misrecollected the date he
signed and turned in the card. I find that Ron Bortner,
with some foreknowledge of the start of the organization
campaign, had earlier discussed the authorization card
with his brother Kevin; that he later obtained a blank
card on the first day of employee organization at the
plant; that he took the card home and signed it the next
morning, July 26, and turned it in that morning to
Carter, as is confirmed by Carter and by the card itself.
In view of his contradictory recollections as to what
Carter said to him, I am constrained, however, to place
little reliance thereon absent corroboration, which, as we
shall see, he did not receive from his brother.
Thus, Kevin L. Bortner testified that it was Hugh
Hickman said it (the card) was to see if we could get a
majority and have a vote; later clarifying that Hickman
said to sign the cards if they wanted; and if they had a
majority, they would have a vote for the Union. Thus,
Kevin Bortner was supportive of what his brother initial-
ly (but not later) recalled, though inconsistently ascribing
it to Hickman, not Carter. As was the case with his
brother, Kevin Bortner also thought he turned in the
card (which he had signed the day before) on the morn-
ing of the Albion Park meeting, July 31. He otherwise
confirmed that he had taken the card and a union paper
home; that he read the card on both sides, as well as the
literature supplied; that he had signed the card the night
he received it; and, as noted, it was he who put the date
of July 25 on the card.
It is readily apparent that Kevin Bortner had likewise
simply misrecollected as to the date of actual execution
of his card. However the testimony of Ron and Kevin
Bortner is inconsistent and contradictory of what they
were told by the card solicitor(s), and I conclude their
testimony thereon is shown to appear unreliable. But
even were I to credit one (or all) version(s), such a
statement(s) by either card solicitor would not constitute
a clear instruction to disregard what the card itself clear-
ly stated, anymore than the instruction to take the card
home and read probargaining literature is suggestive of
subterfuge. Indeed Kevin Bortner specifically acknowl-
edged that no one told him to disregard what the card
said; and that at home he had also read the (probargain-
ing) union literature. Ron Bortner testified as well that
he and his brother had discussed the card even before
the day the organizing committee was to begin its push.
I am thus wholly convinced on this record that the ex-
ecuted cards of Ron and Kevin Bortner were valid des-
ignations of the Union as their collective-bargaining rep-
resentative when signed and turned in to Carter on July
26.
Ron Bortner testified that he attended the July 31
meeting, arriving with his brother Kevin, and remained
there about 45 minutes. Ron Bortner, who could not
recall whether Albright was responding to a question or
not at the time, related initially, that Albright stated that
the UAW authorization card was to get enough people
signed up for it so he could then send it to the NLRB;
and they could come back and get in touch with Comet
and organize a vote to see if the Union would get in or
not. He later clarified that Albright said when the UAW
authorization cards were ssigned, he would mail them
and a letter to the National Labor Relations Board
asking them if they could hold a vote at Comet for the
Union, to see if the Union was accepted or put down. He
did not remember anything (more) being said about a
letter being sent to the Employer. Ron Bortner did not
recall seeing anyone sign a card at this meeting; and he
later described his recollection of the start of the meeting
as being with some questions thrown about by the group
gathered there. Gunder's initial testimony was essentially
corroborative of Ron Bortner. Thus it was that Albright
had said if a majority of the people signed these cards
then he would go or take them to the NLRB and the
NLRB would present the employees with an election
and they would vote on whether they want a union or
not. Gunder further testified that Albright did not tell
him that the card would be used for anything else.
(Gunder, however, did not stay for the entire meeting.)
Gunder confirmed that Albright had told them that he
had sent a letter to the Employer that there was organi-
zation in the Company to vote for the Union; but he did
not remember Albright saying he would be contacting
the Company with another letter, though acknowledging
he "maybe" could have. Gunder related otherwise that
the employees in this meeting wanted to know what they
were going to sign and Albright had told them. (A
number of employees present did not ever sign a card.)
Gunder relates he saw one or two sign cards at this
meeting; later specifying that he was one and then ac-
knowledging he was unable to identify any other.
Gunder stated that he could not remember if cards were
brought up in the next meeting. His testimony that he
did not remember what was said at the meeting at Cart-
er's house was, I find, simply less than frank, and was
unconvincing.
In attempted rehabilitation, Respondent introduced in
evidence a purported complete transcript of Gunder's
1444
COMET CORPORATION
prior statement given Respondent in joint interview held
with Kevin Bortner on February 28, 1980, Gunder's
statement in part provided:
Q. Now, at the time that the person, and I don't
want to know their name, presented this to you, did
he ask you to sign this card to have a union elec-
tion?
A. In a roundabout way, yea.
Q. Did he say anything about let's sign the card;
the card is to get a vote, to see if the majority of
the people. Did he mention it was to have a vote to
see if the majority of the people supported the com-
pany or the union.
A. Yes. You can't do nothing unless you vote so
you got to sign one of them cards so you can vote.
Q. Did they tell you that?
A. Yes. They explained it to us.
Q. Did they tell you that this card would be used
for anything other than a vote?
A. No.
Q. They specifically said it would be used for a
vote.
A. Just a vote.
Q. When you signed this card, were you under
the impression that there would be a vote taken?
A. Well, the majority would have, you know, the
majority signed this then there would be a vote.
Q. Was anything mentioned about this card other
than it being used for a vote?
A. Not that I can recall.
Q. It has been my experience over a number of
years that I have been doing this stuff, employees or
after presenting one of these and being told "hey,
look, sign the card and we want to have a union
election." The card would be for a union election.
OK? That's the point that I'm trying to get to you.
The majority of the cases I've found they are told
that that card is to be used as an election. OK? Or a
vote.
A. Right.
In explicating the meaning of his above answer "Just a
vote," Gunder first stated, "[T]hat's as far as I knew
what it would be for, just a vote for the Union whether
it would be in or out," clearly indicating it was his sub-
jective assessment or conclusion of what had transpired
there. However, when then questioned specifically
whether the word "just" was Albright's word or his
own, he then responded it was his (Albright's), though
his later attempted recitement of what Albright had actu-
ally said was unclear, and thus unconvincing.
Kevin L. Bortner also recalled being at the Albion
Park meeting of July 31, but for about one-half hour to
45 minutes at most. His initial testimony was also essen-
tially corroborative of the initial testimony of Ron
Bortner and Randy Gunder, to wit: I think the only
thing he (Albright) said was just that it (card) was to see
if we could get a majority to have a vote. Kevin Bortner
otherwise related he was there at the start of the meet-
ing; recalled that there was a lot of yelling; and he re-
lates that Albright had held up a card and said some-
thing about getting a majority for them, that they were
having the meeting to inform more people about the
Union so they could get more people to sign the cards.
Kevin Bortner testified that Albright also told them that
he would take the cards to the Board for a percentage,
or something (later confirming Albright's reference was
to if he got a majority) and then the Board would contact
Comet, something about that. When questioned whether
Albright had discussed obligations to the Union, Kevin
Bortner testified that Albright said that if they did sign
the card to get the election, that if they did have an elec-
tion, they necessarily would not have to vote for the
Union. On cross-examination Kevin Bortner related he
thought the discussion on the cards was first brought up
by a question, but repeatedly could not recall it, though
he eventually testified that a lot of the employees had
asked if they signed a card, if they did get an election, if
they would have to vote yes for the Union; and that Al-
bright had answered: "No, that you wouldn't have to."
On an other occasion, Kevin Bortner acknowledged that
he could not recall exactly what Albright had said in re-
sponse to the question about the cards. When asked gen-
erally for his recollection of any other questions about
the cards, Kevin Bortner responded with assertion that it
was just made clear that they were for a vote only. It
was only after specific question was finally posed by the
Union whether Albright had said the cards were only for
an election that Bortner did then make assertion that Al-
bright had specifically said the cards were only for an
election. The Charging Party promptly sought introduc-
tion in evidence transcript of prior interview by Re-
spondent of witness Kevin Bortner (as noted, held jointly
with witness Randy Gunder) at which point Kevin
Bortner quickly recanted he probably might not have
told that previously to Respondent. Kevin Bortner went
on to affirm he was questioned and had replied to ques-
tions on that occasion as follows:
Q. The person who presented that card to you,
they tell that that card would be used for a vote or
for a union election?
A. A vote.
Q. Did they tell you that the card would be used
for anything other than a vote?
A. No.
Q. Were you under the impression at that time
and still are that the card is to be used only for a
vote.
A. Yes.
Bortner, revealingly in explanation of his assertion that
Albright said it was only for an election, has related the
same to earlier (and like) questions posed to Albright
about a card signer's ability to vote either way in a
future election, as instance(s) of Albright's stress that the
cards were only for an election. (This is one of the factu-
al matters in Gissel. supra that has been found not defea-
tive of a valid designation.)
Kevin Bortner acknowledged that Albright had also
encouraged all the employees to read the card before
they signed it. When Bortner was asked what he recalled
of the card he had earlier signed, he relates he believed it
was just for a vote, to get a majority to see if we could
1445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hold a vote. When shown the card at hearing (which
says nothing of an election), and specifically upon read-
ing the back he related, "This is a complete conflict with
what they told us. " 69
Kevin Bortner recalled Albright spoke of sending a
letter to the Company about the inplant organizers so
they would be protected; but he did not remember Al-
bright say he would contact the Company about the au-
thorization cards. In that connection, however, Kevin
Bortner also asserted that the following statement ap-
pearing in his transcript, to question posed, was actually
an answer made not by himself but by Randy Gunder, to
wit:
Q. Did they tell you that it could be used for
anything other than a vote?
A. That's it. We signed these cards and the ma-
jority of them signed them that they will recognize
you guys with a letter and you guys have to open it
and read it, but they didn't say nothing about bar-
gaining. 7
It is clear from the above (whether it be Gunder's or
Kevin Bortner's declaration) that there has been a still
further corroboration (along with its own witness
DeLong) of Albright's testimony, itself otherwise cor-
roborated and supported, by still others, that in this
meeting as well as other meetings he had told the em-
ployees that when they got a majority standing, he
would send another letter to the Company requesting the
Company to recognize the Union.
I have little doubt that, in responding to questions or
otherwise, during the course of the Albion meeting of
July 31 Albright may have stated to employees in sub-
stance and effect that the UAW authorization cards that
employees were being asked to sign would be used by it
to support a future petition for an election by the em-
ployees; and would be one in which they could vote the
Union up or down. However, I am as well convinced
that he said nothing to them in that meeting that was cal-
culated to direct employees to disregard and forget the
equally clear language of the card, so as to deliberately
or clearly cancel the single-purpose authorization sup-
port which the Union was seeking from them. It follows
from the above that there is no warrant to discredit what
otherwise appears of record to have been valid designa-
tions of UAW as their representative by Deveau, Kline,
Leslie, White and Ron and Kevin Bortner, indeed
Gunder as well. 7 '
69 However, to be contrasted, it is observed that in interview tran-
script appears the sentence clearly attributable to Respondent interviewer
and spoken in his presence: "Bob [Hays] is maintaining and the Company
is that if you want the Union then you should have the right to vote on
it, and that they have no right to force it down anyone's throat because
you signed the card which says, in fact, it was for a vote only." There is
thus serious question as to actual source of his erroneous recollection as
to content of card at that point of time.
'0 The witness was interviewed in the presence of Blankenship and
Plant Manager Hays, but with leadman Randy Gunder also present for
interview.
71 In reaching such overall findings I am not at all persuaded that the
testimony of witnesses Ron and Kevin Bortner and of Randy Gunder
were contrived. It is always a possibility that an employee may miss a
spoken word, or if not present for an entire meeting, of course be absent
when a material matter is related as is confirmed by others was the case.
3. The alleged 8(a)(5) refusal to bargain, and the
remedial bargaining order issues
As of August 16, when UAW sent notice by mail to
Respondent that the UAW had been designated by the
majority of Respondent's production and maintenance
employees as the exclusive collective-bargaining repre-
sentative in respect to rates of pay, wages, hours, and
other terms and conditions of employment, UAW had in
its possession authorization card designations of such
from 62 of 100 employees, a clear majority, in a produc-
tion and maintenance unit of Respondent's employees
heretofore found appropriate. I have considered all the
contentions of Respondent as to asserted invalidity of
certain of the card designations at length above, and
found all such contentions individually and now collec-
tively to be without merit. Thus, at the time the UAW
had claimed majority and requested institution of collec-
tive bargaining, it was the exclusive collective-bargaining
representative as evidenced by employee sentiment ex-
pression through a majority of valid authorization card
designations. In refusing mail service of the UAW letter,
anticipating such claims and demands were likely con-
tained therein, Respondent has effectively refused to bar-
gain with the Union.
Respondent has engaged in conduct with clear design
to undermine employee interest in the Union. Thus, after
first promptly and unmistakably making it clear to all its
assembled employees on July 30, that its position was to
be one of open hostility to the Union, it immediately set
out upon a course of unlawful conduct that could have
only been calculated and designed by it to undermine
and thwart its employees' continued interest in and sup-
port of the Union.
Respondent's conduct has thus included on the one
hand an unlawful restriction of and interference with the
statutory right of its employees to self-organization of a
union of their own choice, by Respondent's publication
and/or maintenance of an unlawfully broad no-solicita-
tion and no-distribution rule, and of unlawfully broad no-
access rule; and essentially at the same time it discharged
the two most active, most proficient card solicitors for
the UAW, Greg Carter and Hugh Hickman, under cloak
of present economic decline, but accomplished under
plant circumstances such as are shown herein to have
been not only discriminatorily motivated, but to have
been accomplished under plant circumstances that would
serve only as a daily and constant reminder to other em-
ployees that such prominence in union adherence and
union affairs was disadvantageous to continued employ-
ment with Respondent; and indeed, even with rehire of
Carter and Hickman, the discrimination has continued, in
that they have been required since to accept employment
Though I have concluded that they were in part in their recollection in
simple error, or in other part unconvincing, I have in other substantial
areas found their testimony consonant with that of others and the record,
as a whole, and to that extent, credible. In the light of the findings
reached herein. essentially made on the weight of the credible evidence I
need not reach or resolve the merit of any further contention that there
has been an undue sway of these witnesses affecting their general credi-
bility by interviews that are urged to be not merely investigatory, but im-
permissibly suggestive, particularly where there has been no unfair labor
practice alleged in relation thereto.
1446
COMET CORPORATION
without return of their full seniority and other rights and
privileges.
Respondent, on the other hand, announced first on
August 7 to the Committee, and published thereafter to
all employees its own present extension of a formal rec-
ognition of the Shop and Safety Committee as the repre-
sentative of its employees in regard to matters pertaining
to safety, compensation, employee benefits, disciplinary
procedure, etc. Though it had had some prior dealings
on certain such matters from time to time, this employee
committee was a labor organization whose own initial
formation and structure Respondent had initially con-
trolled, and whose operations since have been shown
above to have been in practice wholly dependent on Re-
spondent for support and very call; and indeed was one
which, under those circumstances, I further find it had
suffered to lapse into a 3-4 month period of inactivity
before Respondent resumed a meeting call of August 7.
Following the advent of the Union, in the same hand-
book publication, Respondent told employees that it
would meet monthly with the Committee and urged its
employees to supply their input on the above subjects to
that employee representative. Respondent thereupon, in
subsequent months, has met monthly with the Shop and
Safety Committee; has upgraded its dealings with it to
cover a broad gamut of collective-bargaining subjects,
leading eventually to include a discussion and agreement
on a full wage benefit package. Respondent has done so
though that labor organization (committee) had never
claimed or demonstrated that it represented the majority
of its employees; had never sought recognition as such;
and had not requested bargaining. In the interim Re-
spondent gave the Shop and Safety Committee continued
support and assistance in the form of paying employees
for their attendance at meetings and hearings, and sup-
plying it clerical and other support in formalizing for the
first time by plantwide secret ballot its continued repre-
sentative membership, many of whom in the past and
present had been themselves UAW supporters. At this
time of heightened bargaining it regularly had typed and
posted the minutes of the Committee's meeting and ac-
complishments; with clearest message to employees that
representation by the UAW was unnecessary as presaged
on July 30.
The unfair labor practices which I have found were
committed by Respondent in this period are serious
unfair labor practices. It is obvious they have impeded
the Board's preferred election process after it was begun
by the UAW in this matter. Worse still, it has been found
that Respondent has once before similarly interfered with
the self-organizational activity of its employees by initiat-
ing, sponsoring and promoting The Shop Committee
during the Teamsters Local 414 organization in 1976,
and thereafter rendering it unlawful aid, assistance, and
support.
In my view the above unfair labor practices are both
serious and are of a nature in combination to have a last-
ing effect upon employees, and to tend to undermine ma-
jority strength and to make the more unlikely and im-
probable the holding of a fair election among Respond-
ent's employees. I thus conclude and find that a bargain-
ing order is both necessary and appropriate herein in
order to protect the majority sentiment expressed initial-
ly through UAW authorization cards, and to otherwise
adequately remedy the effects of all the violations
found. 7 2 In that connection in view of the magnitude
and scope of this course of conduct, which as noted I
have concluded could have been only calculated to de-
stroy union support, including majority representation of
UAW, I further find that from on and after demand for
recognition date of August 16, Respondent has refused to
bargain with UAW as the collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(l)
and (5) of the Act. I am not, however, convinced that
Respondent has independently violated Section 8(a)(5)
by a unilateral action in publishing the Albion employee
handbook as such in late August. I am rather convinced
that the same was long in the making and was essentially
solidified when reviewed with the Committee on August
7. However, an appropriate remedy of its unlawful pro-
visions, including the unlawful support and assistance it
provided to the Shop and Safety Committee, will be pro-
vided hereinafter.
CONCILUSIONS OF LAW
1. Comet Corporation is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW,
and Local 414, Agricultural Implement Workers of
America, UAW, and Local 414, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and The Shop Committee and/or
the Shop and Safety Committee are each and all labor
organizations within the meaning of Section 2(5) of the
Act.
3. By discriminatorily discharging its employees Greg
Carter and Hugh Hickman on August 31, 1979, and by
refusing thereafter to reinstate them to their former posi-
tions of employment with their full seniority and other
rights and privileges, Respondent has engaged in con-
duct in violation of Section 8(a)(3) and (1) of the Act.
4. By initiating, forming, sponsoring, and promoting
The Shop Committee in 1976 and by thereafter rendering
it unlawful aid, assistance, and support and otherwise in-
terfering with the operation of The Shop Committee;
and by controlling the formation and structure of the
Shop and Safety Committee in 1978, and thereafter inter-
fering with its operation; and by extending formal recog-
nition to it in August 1979, at a time when it did not rep-
resent an uncoerced majority of employees, and urging
its employees to utilize it as their representative: and by
thereafter engaging in collective bargaining with it, and
otherwise rendering it unlawful aid, support, and assist-
ance, including paying employees for their attendance at
meetings and hearings, by typing and posting minutes of
upgraded bargaining, and by supplying it clerical and
other support in formalizing its continued representative
committee membership, Respondent has engaged in con-
?z N.L.R.B. v. Gassel Packing Co. Inc., 395 US 575, 614 615; cf also
Worldwide Press. Inc.. 242 NLRB 346, 366-367 (1979), and teledyne
Dental Products Corp., 210 NLRB 435 (1974).
1447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct constituting unlawful assistance and support and
domination of The Shop Committee in 1976 and the
Shop and Safety Committee in 1978 and thereafter, in
violation of Section 8(a)(2) and (1) of the Act.
5. By publication and/or maintenance of an unlawfully
broad no-solicitation rule and no-distribution rule, and of
an unlawfully broad no-access rule, Respondent has en-
gaged in conduct violative of Section 8(a)(l) of the Act.
6. All regular full-time and all regular part-time pro-
duction and maintenance employees of Comet Corpora-
tion at its Albion, Indiana, facility; but excluding all
truckdrivers, all office clerical employees, all salesmen,
all professional employees, all guards and supervisors as
defined in the Act, constitute an appropriate unit for pur-
poses of collective bargaining.
7. Since on or about August 16, 1979, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, has been and is
the exclusive collective-bargaining representative of the
employees in the appropriate unit described in paragraph
6 above.
8. Since on or about August 16 and thereafter Re-
spondent has refused to bargain upon request with the
Union named in paragraph 7 above, in violation of Sec-
tion 8(a)(5) and (1).
9. Except as found herein Respondent has not other-
wise violated the Act as alleged in the complaints.
REME)DY
Having found that Respondent Employer has engaged
in certain unfair labor practices, I find it necessary to
order Respondent to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
Respondent Employer having wrongfully discharged
Greg Carter and Hugh Hickman on August 31, 1979,
and thereafter refused to fully reinstate them, I find it
necessary to order Respondent Employer to offer Greg
Carter and Hugh Hickman immediate reinstatement to
their former jobs or, if such jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their se-
niority and other rights and privileges; and to make them
whole for any loss of earnings they may have suffered
by reason of unlawful discrimination against them. The
backpay provided herein and any interest due thereon
shall be computed in the manner prescribed in E W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 7: I have found
that a remedial bargaining order is warranted herein.
However, I have also found that Respondent has unlaw-
fully refused to recognize and bargain with the UAW
since August 16. Inasmuch as other unfair labor practices
are adequately remedied hereinafter I shall recommend
that the remedial bargaining order provided herein be
dated from August 16, 1979.74
7s See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
74 In the light of Respondent's clear renewal of unlawful assistance
and support of the Shop and Safety Committee commencing on August
7, I shall, as urged by the General Counsel and UAW, and is supported
by the record, date the remedial bargaining order as of August 16, by
which time UAW is shown herein clearly to have attained to a majority
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 7 5
The Respondent, Comet Corporation, Albion, Indiana,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Publishing and/or maintaining and enforcing an un-
lawfully broad no-solicitation and no-distribution rule,
and an unlawfully broad no-access rule.
(b) Permanently laying off and/or discharging employ-
ees because of their membership in, and activities on
behalf of, the Union, and/or in order to discourage mem-
bership in the Union.
(c) Initiating, sponsoring, and promoting The Shop
Committee at Albion; providing it unlawful aid, assist-
ance and support; paying employees for attendance at its
meetings; participating in its meetings; controlling attend-
ance at its meetings; and in practice and effect dominat-
ing The Shop Committee at Albion; and from controlling
the formation and structure of the Shop and Safety Com-
mittee; interfering with its operations by calling its meet-
ings and urging and encouraging employees to support
the Committee with collective-bargaining input; paying
employees for attendance at its meetings, and its mem-
bers for attendance at hearings; participating in all its
meetings; providing it clerical and other support of
typing and posting of minutes of committee meetings and
accomplishments, and similar clerical support and assist-
ance in formalizing its membership by plantwide secret-
ballot election; and in collective practice and effect thus
dominating the Shop and Safety Committee.
(d) Cease recognizing the Shop and Safety Committee
as the exclusive collective-bargaining representative of its
employees at a time when the Shop and Safety Commit-
tee does not represent an uncoerced majority of Re-
spondent's employees in the appropriate unit described
below.
(e) Cease refusing to recognize and bargain with Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, as the
exclusive collective-bargaining representative of its em-
ployees in the following unit:
All regular full-time and all regular part-time pro-
duction and maintenance employees of the Employ-
er at its Albion, Indiana, facility; but excluding all
truck drivers, office clerical employees, all sales-
men, all professional employees, all guards and su-
pervisors as defined in the Act.
as well as requested recognition, Cas Walkers Cash Stores. Inc., 249
NLRB 316, and see cases cited in fn. 3 (1980).
*a 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.
1448
COMET CORPORATION
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Greg
Carter and Hugh Hickman to their former jobs or, if
those jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other rights
and privileges; and make employees Greg Carter and
Hugh Hickman whole in the manner described in the
section herein entitled "Remedy."
(b) Withdraw all recognition from the Shop and Safety
Committee with respect to representation of any of Re-
spondent's employees in the appropriate unit described
above; and disestablish it in regard to all collective-bar-
gaining functions.
(c) Upon request, recognize and bargain with Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, as the
exclusive collective-bargaining representative of all em-
ployees in the appropriate unit described above, and, if
an understanding is reached, embody such understanding
in a written, signed agreement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at Respondent's Albion plant facility copies of
the attached notice marked "Appendix." 76 Copies of the
notice on forms provided by the Regional Director for
Region 25, after being duly signed by the Company's au-
thorized representative shall be posted by the Employer
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to ensure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
I-r Is FURTHER ORDERED that the complaints be dis-
missed insofar as they allege violation of the Act other
than those found herein.
76 In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgement of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NoTIcEt To EMPILOYiEiS
POSTED BY ORDER OF THE
NATIONAl. LABOR RFI.ATIONS BOARI
An Agency of the United States Government
WFi wit l Nor publish and/or maintain and en-
force an unlawfully broad no-solicitation and no-dis-
tribution rule, and an unlawfully broad no-access
rule.
WI: WII.L NOT permanently lay off and/or dis-
charge employees because of their membership in,
and activities on behalf of, International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, and/or in
order to discourage membership in UAW.
WE W'I.l NOI initiate, sponsor, and promote The
Shop Committee at our Albion facility: provide it
unlawful aid, assistance, and support; pay employees
for attendance at its meetings; participate in its
meetings; control attendance at its meetings; and in
practice and effect thus dominate The Shop Com-
mittee at Albion; and
WI wll.t. NOT control the formation and struc-
ture of The Shop and Safety Committee: interfere
with its operations by calling its meetings, and
urging and encouraging our employees to support it
with collective-bargaining input; pay our employees
for attendance at its meetings, and its members for
attendance at hearings; participate in all its meet-
ings; provide it clerical and other support of typing
and posting of minutes of committee meetings and
accomplishments, and similar clerical support and
assistance in formalizing its membership by
plantwide secret-ballot election; and in collective
practice and effect thus dominate The Shop and
Safety Committee.
WE Willl NOi recognize The Shop and Safety
Committee as the exclusive collective-bargaining
representative, at a time when The Shop and Safety
Committee does not represent an uncoerced major-
ity of our employees in the appropriate unit de-
scribed below.
WE WIl i. NOT refuse to recognize and bargain
with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, as the exclusive collective-bargain-
ing representative of our employees in the following
unit:
All regular full-time and all regular part-time
production and maintenance employees of the
Employer at its Albion, Indiana, facility; but ex-
cluding all truck drivers, office clerical employ-
ees, all salesmen, all professional employees, all
guards and supervisors as defined in the Act.
WE WII.1 NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights to self-organization, to form,
join, or assist UAW, or any other labor organiza-
1449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, to bargain collectively through representative
of their own choosing, and to engage in concerted
activities for the purposes of collective-bargaining
or other mutual aid or protection, or to refrain from
any and all such activities.
WE WI.1. offer immediate and full reinstatement
to Greg Carter and Hugh Hickman to their former
jobs or, if those jobs no longer exist, to a substan-
tially equivalent job, without prejudice to their se-
niority or other rights and privileges; and WE Wll .
make them whole for any loss of earnings they may
have suffered by reason of unlawful discrimination
practiced against them.
WE WIlL. withdraw all recognition from The
Shop and Safety Committee with respect to repre-
sentation of any of our employees in the appropriate
unit described above; and WE WI.l. disestablish it in
regard to all collective-bargaining functions.
WE WILL, upon request, recognize and bargain
with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, as the exclusive collective-bargain-
ing representative of all employees in the appropro-
priate unit described above, and, if an understanding
is reached, embody such understanding in a written,
signed agreement.
COMI I CORPORATIION
1450