Continental Oil Co.

National Labor Relations Board - Board Decisions

Dec 12, 1966

162 N.L.R.B. 20 (N.L.R.B. 1966)

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monroe Manufacturing Company, Division of Continental Oil
Company and United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO. Cases 26-CA-2186 and'26-RC-
2425. December 10, 1966
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
On June 29, 1966, Trial Examiner Robert L. Piper issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices as alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision. In
addition, the Trial Examiner found no merit in the objections to the
election filed in Case 26-RC-2425 and recommended that the objec-
tions be overruled. Thereafter, the General Counsel filed exceptions
to the Trial Examiner's Decision and a supporting brief, and the
Respondent filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions,2 and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
dismissing the complaint.]
[The Board overruled the objections filed in Case 26-RC-2425.]
'The General Counsel has excepted to certain credibility findings made by the Trial
Examiner. It is the Board 's established policy not to overrule a Trial Examiner's resolu-
tions with respect to credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall Products , Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find no such basis for the disturbing of the
Trial Examiner ' s credibility findings in this case.
2 We do not consider or adopt the Trial Examiner ' s conclusions with regard to the
authorization cards or the Union's asserted majority status at the time of its request for
recognition . Such conclusions are superfluous here, as we specifically adopt the Trial
Examiner ' s conclusion that the Respondent did not, in bad faith, refuse to recognize and
bargain with the Union, and therefore has not violated Section 8( a) (5) as alleged. Aaron
Brothers Company of California, 158 NLRB 1077. Member Jenkins concurs in the
result reached here for the reasons set forth in his concurring opinion in the Aaron
Brothers case.
162 NLRB No. 8.
MONROE MANUFACTURING CO. 21
[The Board certified that a . majority of the valid votes was not cast
for United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, and said labor organization is not the exclusive representa-
tive of the employees in the appropriate unit.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On June 16, 1965,1 United Rubber, Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO (hereinafter called the Union), in Case 26-RC-2425 filed a petition
for a representation election among certain employees of Monroe Manufacturing
Company, Division of Continental Oil Company (hereinafter called Respondent).
On July 21, the Regional Director for Region 26 issued his Decision and Direction of
Election. On August 19, said election was held. Fifty ballots were cast for and 69
against the Union. In addition there were two challenged ballots. On August 26, the
Union filed timely objections, nine in number, to conduct affecting the results of the
election. On October 13, the Regional Director issued his Supplemental Decision
and Order Directing Hearing, in which he overruled objections II, III, VII, and VIII,
and directed hearing on objections I, IV, V, VI, and IX because they raised material
and substantial issues best resolved by record testimony.
Thereafter on October 21, pursuant to a charge filed by the Union on August 26,
the Regional Director issued a complaint in Case 26-CA-2186 alleging, as amended
at the hearing, that Respondent had engaged in unfair labor practices proscribed
by Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended
(hereinafter called the Act), by interrogation, threats, promises of benefit, the grant-
ing of a benefit, discriminatory reduction of overtime, and refusal to bargain. On
December 9, the Regional Director ordered that the cases be consolidated for hear-
ing and decision before a Trial Examiner, and that thereafter Case 26-RC-2425 be
transferred to and continued before the Board. The objections consolidated for hear-
ing with the complaint are limited to the period from June 16 to August 19.2
Respondent's answer, dated November 10, and amended at the hearing, admitted
the jurisdictional and certain other factual allegations of the complaint but denied
the commission of any unfair labor practices. Pursuant to due notice, this consolidated
proceeding was heard by Trial Examiner Robert L. Piper at Aberdeen, Mississippi,
between January 11 and 28, 1966. All parties were represented and accorded all
rights of due process. Oral argument was waived and a brief was submitted by
Respondent.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a corporation engaged in the manufacture of plastic and related
products , with its office and principal place of business at Aberdeen , Mississippi.
During the past year it purchased and received in Mississippi more than $ 50,000
worth of goods and material directly from points outside the State of Mississippi, and
sold and shipped more than $50,000 worth of finished products directly to points
outside the State of Mississippi . Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
All dates hereinafter refer to 1965 unless otherwise indicated.
2In the light of the Board's holding in Ideal Electric and Manufacturing Company, 134
NLRB 1275 (1961), only that conduct occurring between June 16, the date of the filing
of the petition, and August 19, the date of the election, is considered in connection with
objections to the election.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
This is an authorization card Bernel Foam type case . It is now well settled that
even though a union loses an election , it may successfully file charges of refusal to
bargain prior thereto based upon a proper showing of majority representation and a
bad-faith refusal to recognize or bargain .3 However, in such cases the Board will
not issue a bargaining order unless objections sufficient to set aside the election are
filed and found.4
As noted above , the Regional Director ordered objections I, IV, V, VI, and IX
consolidated for hearing with the complaint herein. In his order of October 13, the
Regional Director stated that said objections "will be alleged as violations of Sec-
tion 8 ( a)(1) of the Act in a Complaint against the Employer. . . ... However, sev-
eral allegations of said objections were not alleged in the complaint Specifically, ob-
jection IX and parts of objections I, IV, and V were not included Nevertheless they
will, of course , all be considered herein as part of the consolidated hearings. Thus
in brief the issues as framed by the pleadings and said objections are-
(1) Refusal to bargain on and after June 8; ( 2) interrogation of various em-
ployees concerning their union activities ; ( 3) creating the impression of surveillance
of union activities ; ( 4) promises of a wage increase for refraining from supporting
the Union ; ( 5) threatening loss of insurance benefits for supporting or electing the
Union; ( 6) warning an employee not to serve as an observer in the representation
election ; ( 7) a written warning to an employee because of his union activity, (8) a
discriminatory reduction of overtime of an employee ; ( 9) granting improved work-
ing conditions to dissuade employees from union activity ; and, from objections I, IV,
V, and IX; ( 10) threatening to withhold benefits if employees voted for the Unions;
(11) soliciting signed union authorization cards from an employee for the purpose of
ascertaining who were union sympathizers and taking reprisals against them; (12)
stating at captive audience meetings on August 17 that selection of the Union would
be useless and futile ; and (13 ) separating , isolating , and excluding known union em-
ployees from others at work to impair the union campaign.
B. Chronology of events
On May 24, Ray Smithart , field representative of the Union , contacted employee
Charles Bryan in Aberdeen to ascertain whether Respondent 's employees would be
interested in organizing a union. Bryan, after discussing the employees ' complaints
about wages and other working conditions , advised Smithart that the employees would
be interested in joining the Union. Smithart delegated Bryan to be the Union's chief
organizer and contact man at Respondent 's plant. Smithart gave Bryan some 60 blank
authorization cards , designating the Union as the signer 's collective -bargaining repre-
sentative , to have signed by employees at the plant . Bryan selected June 2 for the
first union meeting on the basis of his personal convenience , and advised Smithart
that Bryan would get the employees to sign the cards and attend the meeting Bryan
in turn recruited some six or seven employee assistants in key parts of the plant to
assist him in securing such signatures . All of these assistants funneled the signed
cards to Bryan, who in turn gave them to Smithart.
On or about May 24, Harold Armstrong , another employee who subsequently be-
came one of the leaders in the Union 's organizational efforts, had a conversation
with Phil Morse , then chief engineer of Respondent . This conversation will be con-
sidered in detail hereinafter . On May 27 Bryan and his six or seven assistants, who
were never identified in the record , started to secure signatures on the cards from
various production and maintenance employees of Respondent During the course
of the card solicitations , a number of the employees before signing were told by
Bryan and his assistants that the purpose of the card was only to secure an election,
that the Union needed 50 or more percent of the employees to sign in order to get
an election , and that the signers would be free to vote as they pleased. This subject
will be considered in substantial detail hereinafter
The first union meeting was held on June 2 at the Rebel Inn, attended by approxi-
mately 20 employees including Bryan. Just prior to the meeting , Bryan gave Smithart
the 60 cards which Bryan and his assistants had had signed by various employees.
3 Bernet Foam Products Co., Inc , 146 NLRB 1277 ( 1964 ) ; N L.R B v Varney Co , 359
F 2d 774 (C A. 3, 1966) : NLRB v S N C Mfg Company, 352 F 2d 361 (CAD C,
1965), cert denied 882 U S. 902; Irving Air Chute Co v N L R B , 350 F 2d 176 (C A 2,
1965 ) , Colson Corp v. N L R B , 347 F.2d 128 (C.A. 8, 1965), cert denied 382 U S 904.
4Irving Air Chute Company , Inc, 149 NLRB 627 (1964).
MONROE MANUFACTURING CO. 23
A number of the employees at the meeting had questions about the Union's organiza-
tional drive, the procedure to be followed, and related matters. Smithart advised the
employees that if the Union secured the signatures of more than 50 percent of the
employees the Union would demand recognition from Respondent, but that the
Union would prefer to have 70 to 80 percent. He also advised the employees that
if Respondent would not grant recognition the Union would file a representation
petition with the Board. Some of the employees understood Smithart to have said
that the cards were only for the purpose of an election, and that the Union needed
more than 50 percent of the employees signed in order to get an election. A second
union meeting was scheduled for June 9
Respondent's officials became aware of the Union's organizational drive about
June 1. At about that time Respondent advised all of its supervisory officials not to
interrogate or threaten any employee with respect to the union activities. Respond-
ent's officials uniformly adopted a policy of from time to time asking various
employees if they had any questions about the Union and the election, and advising
them that the official's "door was always open" for such inquiries. Apparently some
time in early June, around June 2, although the date is not determinable from the
record, Guy Rye, a foreman in the maintenance department, had a conversation
with employee Samuel Kennedy, which will be considered hereinafter. The principal
officials of Respondent identified in this proceeding were Gordon Feiguson, plant
manager, Phil Morse, chief engineer, Paul Hirsch, superintendent of the hose
department, Bob Allen, superintendent of the resin department, Fletcher Fisackerly,
superintendent of the compound department, Willie Scott, a foreman in the hose
department, Owen Tubb, a foreman in the vinyl department, and Rye. Ferguson,
then plant manager, was Respondent's top official in Aberdeen.
Between June 2 and 7, five employees individually contacted Ferguson and advised
him that they had signed union cards, but had decided they were against the Union
and would vote against it. On June 4, Bryan advised Smithart that Bryan had
approximately 12 more signed cards, but did not deliver them. •Between June 2 and
8, Smithart received approximately 10 signed cards. During the weekend of June 6
and 7, Bryan talked with a personal friend, Al Forster, a Mississippi State senator,
concerning the employees' organizational efforts. As a result of this conversation
Bryan decided to back away from the Union and drop his organizational efforts.
On or about June 7, Bryan went to see Ferguson at the plant. He explained to
Ferguson that he had been the leader in securing signatures on the union cards,
that he had six or seven assistants whom he did not identify, and that they had
decided to back away from and drop the Union and were no longer interested in it
but would like Respondent to form a grievance committee so that the employees'
various complaints could be handled in that manner. Ferguson did not interrogate
Bryan concerning any of these matters. Ferguson refused to form any grievance
committee, stating that Respondent would continue to handle employee complaints
on an individual basis as it always had in the past On June 7, Armstrong had a
conversation with Morse concerning a raise. On June 8 Smithart wrote Respondent
advising it that the Union represented a majority of its production and maintenance
employees and requesting recognition and bargaining.
On June 9, Smithart called Bryan from Tupelo, Mississippi, with respect to the
union campaign and a plan to distribute a leaflet at the plant that afternoon. Bryan
replied that he was quitting the Union and that Forster had suggested that the
employees defer any action on the Union because another company which would
employ approximately 500 employees was considering moving into Aberdeen, that a
union campaign at Respondent's plant would probably keep it from moving in, and
that Bryan contact Respondent's management in an attempt to see if it would agree
to some kind of a grievance committee to try to dispose of the employees' complaints
and grievances. Bryan told Smithart that the union meeting scheduled for that
evening was canceled and that Bryan would not give him the 12 signed cards Bryan
had. Smithart believed that the campaign had probably collapsed, but nevertheless
decided to distribute the leaflets himself at the plant that afternoon. During the
course of this distribution he discovered that many of the employees were still very
friendly and decided to proceed with the meeting that night.
The union meeting was held at the Rebel Inn on the evening of June 9. Twenty-
three employees attended Bryan was not present at the outset. Smithart informed
the meeting of Bryan's changed views concerning the Union and his refusal to turn
in the 12 cards. Several employees left the meeting to get Bryan and he subse-
quently appeared. He explained to the employees present that he had changed his
mind about the Union, and suggested that they wait at least 30 days before filing
any petition with the Board. He told them he had met with Ferguson and felt that
Respondent would adjust their grievances. The employees did not agree to his
suggestions. Bryan refused to and never did turn in the 12 signed cards he had.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, substantially all of the 12 employees who had signed the cards that Bryan
retained subsequently signed additional cards which they turned in to Smithart.
Respondent received Smithart's letter on June 9. On June 11 Ferguson replied
thereto stating that Respondent did not believe that the Union represented a majority
of the production and maintenance employees and that Respondent believed the
employees were entitled to an election conducted by the Board. On June 12 Smithart
received this letter and replied thereto, suggesting a check of the signed authorization
cards by an independent agent to determine whether the Union represented a majority
of the employees. In addition, Smithart stated: "The reason I am asking for a card
check is that I do not believe there can be a representation election held without
antiunion interference and other acts of interference with the employees about their
Union activity that they cannot make a free choice in a representation election."
In spite of the foregoing statement, on June 16 Smithart filed with the Board a peti-
tion for an election together with the signed authorization cards. On June 17 Fer-
guson replied to Smithart's letter of June 12, stating that Respondent believed that
a Board election was the only proper method for determining the employees' desires,
that Smithart's refusal to petition reaffirmed Respondent's doubt of his claim of
representing a majority, and that in such a proceeding the Board must determine
what employee unit was appropriate. Respondent also advised Smithart that there
was no basis for his statement that its employees could not make a free choice in a
representation election and that there would be "acts of interference" in the event
of an election.
Sometime around June 15, Superintendent Hirsch had a conversation about the
Union with employee Coy Flynn. On June 22 Ferguson gave a speech to all of the
employees at the plant. This was a typical campaign speech urging the employees
to vote for Respondent and against the Union. There are no allegations in the
complaint or in the objections certified for hearing concerning this speech. Around
June 30 Hirsch had a conversation with employee Clyde Gray about the Union.
Around June 30 Ferguson had a conversation with Gray about the union activity.
Sometime in July, Superintendent Allen had a conversation with employee McCul-
lough about the Union. In mid-July Hirsch had a conversation with several employ-
ees, including Flynn and Armstrong, in which Armstrong's union activities were
allegedly mentioned. In late July Foreman Scott had a conversation with employees
Gray and Flynn about the Union. On August 6 Morse had a conversation with
employee James Law about the Union. On August 9 Respondent issued a written
warning to Armstrong for violation of plant rules and poor work performance. On
August 14 Foreman Tubb had a conversation with employee McCullough about
the Union. On August 17 Ferguson gave his second and final speech to the employ-
ees concerning the union campaign and election (This speech is included in one
of the objections certified for hearing.) On August 17 after this speech Ferguson
had a conversation with employee McCullough about the Union. On August 17
Morse had a conversation with Armstrong about serving as a union observer in the
election. On August 19 the election was held, resulting in 50 votes for the Union,
69 against, and 2 challenged ballots On August 20 Superintendent Fisackerly had
a conversation with employee Grover Pope about the Union. On August 26 the
Union filed its objections and the charge herein. Sometime in October, Morse had
a conversation with employee Charles Davis about the Union.
C. Interference, restraint, and coercion
The complaint as amended alleged that Respondent engaged in interference, re-
straint, and coercion in violation of the Act by various specified instances of
interrogation, creating the impression of surveillance, promising wage increases if
the employees would not elect, join, or support the Union, threatening loss of insur-
ance benefits for supporting or electing the Union, warning an employee not to serve
as an observer in the election, issuing a written warning to an employee because of
his union activity, and granting a benefit in the form of improved working condi-
tions to persuade the employees not to support the Union. In addition, the com-
plaint alleged that the aforesaid acts of interference, restraint, and coercion, together
with the alleged refusal to bargain and the alleged discriminatory reduction of
overtime of an employee, were engaged in in order to undermine the Union and
destroy its majority. In the interest of conciseness, the various allegations of inter-
ference, restraint, and coercion, with the exception of the last, are considered in
connection with each of Respondent's officials, respectively, rather than chrono-
logically. At the outset, it should be noted that Respondent's officials engaged in
the practice of frequently asking the employees if they had any questions about the
MONROE MANUFACTURING CO. 25
Union or the election and advising them that the door was always open for such
inquiries . It is clear that such inquiries , frankly admitted by Respondent, do not
constitute coercive interrogation within the meaning of the Act.
1 Paul Hirsch
The complaint alleged that on May 29, Hirsch interrogated an employee . This is
the only allegation in the complaint concerning Hirsch. Although there is no evi-
dence of any interrogation on May 29 , the record contains evidence of three incidents
involving Hirsch , all occurring later in June and July. Hirsch was the superintendent
of the hose department . About June 15, Flynn, who was employed in the hose
department , asked Hirsch to talk with him about the Union . Flynn told Hirsch that
he had been attending the union meetings to see what was happening . Hirsch replied
that that was a good idea and that Flynn ought to get both sides of the story.
According to Flynn , Hirsch then asked Flynn how he thought the employees in
the hose department would go on the union question , and he replied that he thought
all but two or three of them were for the Union . Hirsch, whom I credit, denied
that he asked such a question or that the subject was discussed . Flynn admittedly
initiated the conversation and the subject . I conclude and find that this conversation
was not in violation of the Act.
The record establishes that after Bryan's defection from the Union on or about
June 6, employees Gray and Armstrong were the two principal employee supporters
of the Union. Both of them served as union observers at the election.
Around June 30 Hirsch had a conversation with Gray. This was one of many
conversations Hirsch initiated by inquiring if the employees had any questions about
the Union and the election . Hirsch admitted telling all of his employees that
Respondent knew there was union activity , that union was not a dirty word and
that if they had any questions they should not be afraid to ask him . Hirsch at this
time was aware that Gray and Armstrong were leaders in the union movement.
Hirsch was expounding Respondent 's position . He told Gray and several other
employees that Respondent 's wages were better than other plastic plants in the area
which were organized . Hirsch also stated that some other companies had unions
because their management people were unfair and badgered their employees, but
that he felt that Respondent did not have that kind of management and therefore
did not need a union. According to Gray, Hirsch also said that the employees'
union dues would probably be $4 or $5 a month which they probably already knew
but were not telling. Gray testified that another employee, Artis Jones, was present
and participated in the conversation . Jones, who was called by the General Counsel,
was asked no questions about this conversation . Hirsch admitted talking to all of
his employees and encouraging them to ask questions about the Union. I find that
Hirsch's statements on this occasion were not in violation of the Act.
Sometime around the middle of July, Hirsch encountered a group of four or five
employees in the break area in the hose department , including Flynn and Armstrong.
According to Flynn, the employees were discussing the Union as Hirsch came up,
and somebody said "If you are hunting a union man [don't] hunt Harold, because
Harold ain't the onliest one." Harold is Armstrong 's first name . It is clear from
the record that this statement , if made, was made by a rank-and-file employee, not
by Hirsch . Armstrong , who testified at greater length than any other witness called
by the General Counsel, did not corroborate this incident. Hirsch , whom I credit,
denied making such a statement or hearing any such statement made. He said that
he found the employees gathered in the break area during a change in shifts and
was annoyed because of their loafing and told them to get to work . I find that
Ferguson 's statements and inquiries were not in violation of the Act.
2. Gordon Ferguson
The complaint alleged that Ferguson, Respondent 's plant manager, interrogated
one employee in late June and on August 17 promised another a wage increase if
the Union was not supported or elected . Ferguson was another of the officials active
in asking the employees from time to time if they had any questions about the Union.
Although not alleged as violations in the complaint , it will be recalled that prior to
June 6, some five employees came to Ferguson and advised him that although they
had signed a card they were against the Union and several of them were called by
the General Counsel concerning these conversations . In each instance the employee
approached Ferguson . Randy Rye testified that he told Ferguson he had signed a
card but that he was going to vote against the Union. Ferguson then asked him
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he knew of any problems the other employees had and why they wanted the
Union. Rye then told him several of the complaints that the employees had,
involving wages and working conditions. L L. Goodwin contacted Ferguson and
told him that Goodwin had signed a card, that he was against the Union all the
time, but that the boys wanted an election, so he went along with it. Ferguson
asked Goodwin if any of the other men were signing cards and Goodwin said that
quite a few had. Ferguson did not ask and Goodwin did not state who had signed
cards Pope also told Ferguson that he had signed a card but realized he had made
a mistake and would not vote tor the Union. There was no further conversation.
Ferguson was not asked about his alleged statements and accordingly did not testify
concerning them, possibly because there were no such allegations in the complaint.
Ferguson did testify concerning the fact that prior to June 6, a number of employees
had contacted him and told him that although they had signed cards they were then
against the Union and would vote against it Under the circumstances, I find that
these inquiries by Ferguson were not in violation of the Act.
Gray testified that around the 30th of June, Ferguson spoke to Artis Jones and
him and said he would be glad to answer any questions that they had about the
Union, and that his door was always open. This was the entire conversation. On
August 17, Ferguson delivered his second and final speech to the employees urging
them to vote for Respondent. Although not alleged in the complaint, objection V
alleges that this speech was conduct interfering with the outcome of the election
because Ferguson stated in effect that the choice of the Union would be useless and
futile. An examination of this speech discloses no such statement or inference by
Ferguson. Sometime on the same day after the speech Ferguson had a conversation
with employee McCullough Ferguson testified that he asked McCullough if he had
any questions about Ferguson's speech. McCullough then asked Ferguson if the
employees were going to get a raise. Ferguson replied that Respondent could not
make any promises, that it would be illegal and improper for him to make any
promises, and that the only thing he could say was that Respondent would review
wages at the appropriate time, as it had in the past according to its established
policy. According to McCullough, Ferguson said that everybody would get a raise
if Respondent won the election, and when McCullough then asked him how much it
would be, Ferguson replied that he was not allowed to tell, the Government would
get all over him if he would promise anybody a raise during the campaign but
that it would be at least a nickel or more. Ferguson testified that he made no
mention of any wage increase if the Union lost or Respondent won the election, or
any statement that he could not tell how much the raise would be because if he did
the Government would get after him. I credit Ferguson. McCullough's version
makes little or no sense inasmuch as if Ferguson had said that the Government
would get after him if he promised anybody a raise, he would hardly have said in
the same breath that everybody would get a raise of at least a nickel if Respondent
won the election. It may well be that McCullough misunderstood Ferguson's state-
ment that it would be illegal and improper for Respondent to promise any wage
increases under the circumstances, which clearly was legally correct. I find that
Ferguson's statements and inquiries were not in violation of the Act.
3. Phil Morse
The complaint alleged that on June 9, Morse, Respondent's chief engineer, prom-
ised a wage increase if the employees refrained from supporting or electing the
Union, on August 6 interrogated an employee, on August 12 issued a written warning
to an employee (Armstrong) because of his union activities, on August 17 warned
an employee (Armstrong) not to serve as an observer in the election, and on Septem-
ber 23, after the election, promised a wage increase if the employee refrained from
joining or supporting the Union. Armstrong testified that on May 24, 3 days before
he had signed the union card and in fact before any union activity had begun at
the plant, he asked Morse about a raise, and that during the course of the conversation
Morse told him that there would not be any plantwide raise if the Union won the
election. Morse, whom I credit, denied making any such statement to Armstrong.
As a matter of fact, Morse and Armstrong had five conversations, on April 8,
May 28, June 7, and August 8 and 17. These conversations will be considered in
detail hereinafter in connection with the allegations that Morse warned Armstrong
not to serve as an observer in the election, that Morse issued a written warning to
Armstrong concerning his work production because of his union activity, and that
Respondent discriminatorily deprived Armstrong of overtime work from June 20 to
September 16 because of his union activity. I find that Morse, in a conversation
allegedly on or about June 9 or at any other time, neither promised a general wage
MONROE MANUFACTURING CO. 27
increase if the employees did not elect or support the Union nor threatened that there
would be no wage increases if the Union won the election.
About August 6 employee James Law had a conversation with Morse. Law, who
was about to take a leave of absence for Army Reserve duty, had told Foreman
Jones that it might be to Respondent's benefit if Law could vote an absentee ballot
in the Board election and wanted to know if this was possible. Jones conveyed this
request to Morse who ascertained from Respondent's attorneys that absentee ballots
were not permitted. Shortly thereafter Morse spoke to Law and advised him of
this fact. Morse and Law had a general conversation about the complaints of the
employees during which Law stated that the employees desired more money and
did not like the fact that the local chamber of commerce was setting the wages in
Aberdeen. Law contended that Morse asked how Law stood on the Union and he
replied that he was ultraconservative Morse, whom I credit, denied asking Law
how he stood with regard to the Union and asking him to help Respondent find out
what complaints the employees had. Morse admitted the conversation about the
employees' general complaints referred to above. During the course of the conver-
sation. Morse asked Law who the stranger was that Morse had seen Law and
Armstrong going to lunch with a few days previously. Morse had previously seen
the man, a water chemical salesman, once' when he had contacted Morse in an
attempt to sell his product to Respondent. Morse was concerned that the salesman
might be trying to secure the assistance of Law and Armstrong in selling his product
to Respondent. According to Law, Morse, in addition to asking who the man was,
asked if he was not a union man and Law replied that he was not but was some
kind of a water treatment salesman . Morse denied that he made any reference to the
Union or whether or not the salesman was a union man. This was corroborated
by Law's affidavit, received in evidence, which made no reference to any question by
Morse concerning whether the salesman was a union man. I find that Morse's
conversation with and inquiries of Law were not in violation of the Act.
Armstrong was selected to serve as an observer for the Union in the election on
August 19. The balloting was scheduled for 2 hours in the morning and 2 hours
in the afternoon About August 16, Armstrong asked Jones if Armstrong could have
the entire day of August 19 off because he felt that during the nonvoting periods of
time numerous employees would be interrogating him and engaging him in conver-
sation and he did not want to become involved. Jones conveyed this request to Morse
on August 17. Morse asked Armstrong why he wanted to be off the entire day.
Armstrong's testimony in general contained numerous self-contradictions, particularly
on cross-examination, and I do not find him a credible witness. Armstrong, on direct,
stated that Morse said that Armstrong' s serving as an observer for the Union could
put him on the chopping block for good, but on cross- examination Armstrong
admitted that he introduced the subject of the chopping block, not Morse. Arm-
strong then said that he told Morse that inasmuch as Armstrong was on the chopping
block with Respondent anyway he would prefer not to work that day. Morse, whom
I credit, denied any reference by either Armstrong or himself to Armstrong's being
on the chopping block. Armstrong also said that Morse indicated that Armstrong
could refuse to be an observer for the Union and that he replied that he could not
because he had agreed to serve. Morse denied any such statement. Morse told
Armstrong that his wanting to be off the entire day so that he would not be bothered
by other employees was not an adequate reason, that Respondent needed his services,
that he would be given time off, both in the morning and the afternoon, to serve
as an observer at the election, and that it was both his right and privilege to serve
as an observer. It is undisputed that Morse told Armstrong that he could have the
time off to serve as an observer and that he in fact did so, as well as working the
other portions of that day without incident. I find that Morse's conversation with
Armstrong was not in violation of the Act.
Respondent's employees had various ratings within the same classification. They
were originally hired as trainees, after 8 weeks put into rate or class D, approximately
2 months thereafter promoted to class C, and approximately a year later promoted
to class B Thereafter, depending on performance, within a period of some 4 to 6
months they might be promoted to class A. Each class or rate carried a higher rate of
pay than that immediately below it. About 2 months after the election, during
October, Charles Davis asked Morse for a raise. Morse replied that his work
performance did not justify a raise in rating. Davis testified that Morse then said
that the 50 people who voted for the Union were holding money out of their pockets.
Morse admitted that in response to a question asked by Davis, Morse replied that
in his opinion the 50 people who had voted for the Union had voted to take the
union dues out of their pockets. I credit Morse. The record contains no evidence
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any conversation with Morse on September 23 or of any promise of a wage
increase if the employees would not support the Union , as alleged in the complaint.
I find that Morse's conversation with Davis was not in violation of the Act.
4. Bob Allen
The complaint alleged that during July, Bob Allen , superintendent of the resin
department , interrogated an employee and promised a wage increase if the employees
did not elect or support the Union . Allen had a conversation with McCullough
during July. Allen asked McCullough if he had any questions about the speech
Ferguson had made. Allen offered to answer any questions that McCullough might
have after he said there were parts of the speech that he did not understand.
McCullough asked when he was going to get a raise. Allen replied that he did not
know if the employees were going to get a raise . According to Allen, whom I
credit, that was the entire extent of the conversation which lasted about 10 or 15
minutes. Allen denied making any reference to the Union in connection with the
subject of a raise.
According to McCullough , Allen started the conversation by asking what McCul-
lough had heard about the Union and stating that it seemed that all of the colored
boys were going for the Union 100 percent . McCullough replied that he was glad
to talk about it because he really wanted to know what was going on. Allen then
said that Respondent did not want a union and would not think very much of him
if he voted for a union . - Allen also purportedly said that Respondent did not want
a third party in the plant telling it how to run its own business , and stated that every
man on the job was going to get a raise but that he did not know how much the
raise would be, and in connection therewith "mentioned" the Union . McCullough
admitted that they discussed Ferguson 's speech and that he really did not understand
it and asked Allen questions about it. According to McCullough this conversation
lasted for approximately 2 hours, during a period when he was supposed to be
working on a production job as a bagger . I find that Allen 's conversation with
McCullough was not in violation of the Act.
5. Owen Tubb
The complaint alleged that on August 14, Owen Tubb , a foreman in the vinyl
department , interrogated an employee , promised a wage increase if the employees
would not elect or support the Union , and threatened the employees with the loss of
insurance benefits if the employees elected or supported the Union . These three
alleged violations all evolved from one conversation on August 14 with McCullough.
According to McCullough , Tubb spoke to him and another employee, Vassar, about
the Union, told them that the Union would not do them any good , that if they were
working on a railroad it would be different but it would not mean anything to them
there, and that if the Union called a strike it would only hurt them. Tubb then
asked them to help Respondent in the election and said if Respondent won it would
see that they got more money if it had to go all the way to the "Cumberland [sic]
Oil Company" to tell it how much the employees had saved them. Tubb also said
that their insurance benefits would be canceled if the Union won the election.
Tubb, whom I credit , admitted a conversation with McCullough . McCullough
started the conversation by asking Tubb to explain what was going on in the plant
and the mechanics of voting in the forthcoming election. McCullough did not under-
stand the procedure of voting by secret ballot, which Tubb explained to him. McCul-
lough, as he did with Ferguson and Allen, brought up the subject of wages and stated
that the baggers in another department doing the same kind of work were being paid
a nickel more than he was. Tubb replied that he would check into this matter and
did so with the superintendent of the other department . He subsequently informed
McCullough that he was mistaken and was receiving the same amount of pay. Tubb
categorically denied having said anything about the employees getting a raise if
Respondent won the election , or going all the way to the Continental Oil Company
if necessary to get them a raise . He also denied any discussion of insurance benefits
or stating that the employees would lose them if the Union won the election. Vassar
was not called as a witness . I find that Tubb's conversation with McCullough was
not in violation of the Act.
6. Willie Scott
The complaint alleged that in late July and early August, Willie Scott. foreman
in the hose department , promised a wage increase if the employees would refrain
from supporting or electing the Union . Scott had a conversation about the Union
with two of his employees , Gray and Flynn . There is some confusion in the record
MONROE MANUFACTURING CO. 29
whether it was one conversation with both or two separate conversations. Accord-
ing to Gray, one of the active proponents of the Union, the conversation was among
the three of them in early August. Flynn did not corroborate this, but said that he
had a conversation around the same period of time when he asked Scott about raises.
Gray said that he could not recall who brought up the subject of the Union but that
Scott said that if the Union did not get in, the employees would get a raise. Gray
replied that he was not concerned with money but was concerned with Respondent's
handling of layoffs and seniority rights. Flynn testified that he asked Scott when
the employees were going to get a raise, and Scott replied that they would not get
one until the union matter was settled. After having his recollection refreshed by
his affidavit, Flynn then testified that Scott said that they would not get a raise until
the Union was voted out. Thereafter on cross-examination Flynn admitted that Scott
did not say that they would get a raise if the Union lost the election. If Flynn, as
Gray testified, was present during Gray's conversation with Scott, then Flynn contra-
dicted Gray's statement that Scott said the employees would get a raise if the Union
lost the election.
Scott, whom I credit, could recall no conversation with Gray when Flynn was
present, and specifically denied that he ever had any conversation with Gray in which
he made a statement that if the employees did not elect the Union they would get a
pay raise. Scott stated that he told Flynn that he did not know when the employees
were going to get a raise, and when Flynn asked him if the Union would have any-
thing to do with it, told him that he did not know, that he was not the one who
decided raises. Scott denied making any reference to the Union being elected or not
elected in connection with the subject of raises. I find that Scott's conversations with
Gray and Flynn were not in violation of the Act.
7. Fletcher Fisackerly
The complaint, as amended by the bill of particulars, alleged that on August 20,
Fletcher Fisackerly, superintendent of the compound department, created the impres-
sion of surveillance of Respondent 's employees ' union activities by stating to employ-
ees that he knew who had voted for the Union. This was the day after the election.
At about 8 p.m., Friday, Fisackerly was discussing the shutting down of a machine
with Jerry Roberts, one of the operators in the compound department, because that
department shut down production on Saturdays . This discussion took place in an area
of the plant which had an extremely high noise level, so much so that employees in
that area were compelled to wear ear muffs. During the conversation Pope came up.
Pope was one of the employees who before June 6 told Ferguson that he intended
to vote against the Union in spite of signing an authorization card Fisackerly was
not Pope's supervisor but they were acquainted. Pope thought he heard Fisackerly
say that Pope was one of the employees who had voted to shut the plant down.
According to Pope, he challenged Fisackerly about this statement and Fisackerly
then said that he could guess 48 out of the 50 who voted for the Union. Pope
admitted that he was angry at what he thought Fisackerly had said because in fact
Pope had not voted for the Union. Pope admitted that he said to Fisackerly that
he guessed there would be a lot of new faces around the plant and that Fisackerly
replied that Respondent did not do things like that Pope also said that he told
Fisackerly that Pope did not believe the Union could have gotten in anyway because
all the businessmen and outside people were against it and interfering with the
election, and admitted that Fisackerly replied that that was not the case, that Respond-
ent had been offered help but refused because it preferred to handle the matter itself.
Fisackerly, whom I credit, testified that Pope came up while Fisackerly was discuss-
ing the machine problem with Roberts and said: "I guess there will be a lot of new
faces around here next week." Fisackerly replied that Respondent was not that type
of company and even if it could name 48 to 50 of the employees who voted for the
Union it still would not let anybody go. On cross-examination Pope admitted that
he opened the conversation with Fisackerly by making the statement that he thought
there would be a lot of new faces around there shortly. Roberts, who was called
by the General Counsel , was asked no questions about this incident . According to
Fisackerly the only statement that he made with regard to anything being shut down
was a statement to Roberts about shutting down the machine in connection with the
closing of that department the following morning. Fisackerly said that Pope prob-
ably misunderstood the conversation with Roberts about shutting down the machine
and denied making any statement that Pope was one of the employees who had
voted to shut down the plant . Assuming arguendo the correctness of Pope's version,
he did not testify that Fisackerly said that he knew 48 to '50 of those who voted
for the Union but only that he could guess 48 to 50. - I find that Fisackerly's
conversation with Pope was not in violation of the Act.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. Guy Rye
The complaint alleged that on June 2, Guy Rye, foreman in the maintenance depart-
ment, interrogated an employee . Samuel Kennedy testified that Rye asked him if
Armstrong had anything to do with the Union Kennedy replied that Armstrong did
not so far as Kennedy knew. Kennedy had no recollection of when this occurred,
testifying that it could have been a month before or after he signed his union card
on May 27. Although counsel made a strenuous effort to ascertain the date with
more certainty , Kennedy repeatedly testified that he could not remember it any
better. On cross-examination he admitted that he was not certain what statement
Rye had made . Respondent did not call Rye as a witness . This is the only allegation
in the complaint not specifically refuted by the testimony of Respondent 's witnesses
According to counsel for Respondent , Respondent felt Kennedy 's testimony was so
vague and indefinite that they did not feel it necessary to call Rye. If the interro-
gation occurred, it seems probable that it must have occurred at the outset of the
union campaign in late May , inasmuch as the record establishes beyond dispute that
on or about June 1, Respondent was aware of Armstrong 's union activities and
leading role in the organizational campaign. Assuming the interrogation to have
been unlawful , it stands as an isolated incident and as such does not warrant the
issuance of a cease -and-desist order. It did not occur within the period of time
encompassed by the objections to the election.
9. The granting of improved working conditions
The complaint as amended at the hearing alleged that Respondent granted a
benefit in the form of improving certain working conditions in order to persuade
the employees to refrain from joining the Union. There is no reliable, probative,
and substantial evidence in the record that Respondent did so. During Bryan's
conversation with Ferguson on or about July 7, they discussed the grievances or
complaints that Bryan contended the employees had, in connection with Bryan's
suggestion that Respondent appoint some kind of a grievance committee. During
this conversation Bryan referred to an alcohol odor in his department which was
causing a health hazard . As hereinabove found, Ferguson agreed to nothing and
specifically rejected the suggestion of a grievance committee . Ferguson testified that
employee complaints were always treated on an individual basis and handled accord-
ing to merit . Long after this conversation , substantially after the election, the health
hazard created by the alcohol fumes was corrected by the installation of some type
of funnel and fan in the plasticizing department . There is no evidence in the record
that Respondent did so for the purpose of persuading the employees to refrain from
union activity . I find that Respondent did not grant any benefits in violation of
the Act.
D. Discrimination in hire, tenure , terms, or conditions of employment
The complaint alleged that on August 12, Morse issued a written warning to an
employee (Armstrong) because of his union or concerted activities , and that from
June 20 until September 16, Respondent reduced Armstrong 's overtime because of
his union or concerted activities , both in violation of Section 8(a)(1) and (3) of
the Act. There is no question but that from on or about the first of June , Respondent
was aware of Armstrong 's leading role in the Union 's organizational campaign.
Respondent's officials frankly admitted this. Armstrong was employed as an elec-
trical maintenance worker in the maintenance department . His foreman was Robert
Jones. Armstrong was hired in December 1963 and employed for 8 weeks as a
trainee, the regular practice and classification in such cases . Thereupon he was
promoted to Class D, and approximately 4 or 5 months later promoted to Class C.
In February 1965, he was promoted to Class B. Prior to April, the plant engineer,
Sides, was in direct charge of the maintenance department . He in turn was under
Morse, the chief engineer . Sides left Respondent about April 1 and thereafter Morse
assumed direct supervision of the maintenance department in addition to his other
duties. Prior to Sides' departure Morse had observed and reported several maintenance
jobs poorly or improperly performed by Armstrong, and accordingly was not satisfied
with his performance.
On April 8, shortly after Morse assumed direct supervision of the maintenance
department , Armstrong asked Morse for a raise. Morse told Armstrong that he was
not in line for a promotion to the A class and in fact his work was not acceptable
for his then B rate or class . Morse thereupon prepared a written memorandum of
the conversation and placed it in Armstrong 's personnel file. This was long before
MONROE MANUFACTURING CO. 31
the commencement of any union activity . About May 27, two maintenance jobs
inadequately performed by Armstrong came to Morse 's attention . One of them
involved the repair of an air conditioner . Morse ascertained that it took Armstrong
4 hours to determine that the air conditioner 's expansion valve was faulty, which
Morse considered much too long in view of Armstrong 's experience . The other job
involved an electric motor on which the rotor was dragging . Armstrong was unable
to ascertain the trouble until Morse pointed out to him that a dent in the end bell
was causing the trouble . Again Morse felt that Armstrong did not perform his job
adequately in the light of his experience . Morse discussed both of these incidents
with Armstrong On May 28, Morse prepared a memorandum concerning these two
incidents which he placed in Armstrong 's personnel file. This also was before
Respondent had any knowledge of Armstrong 's union activity . On June 7, Arm-
strong again approached Morse about a raise. Morse referred back to their conver-
sation of April 8 and repeated that not only was Armstrong 's work inadequate to
justify a raise but that it was not adequate to justify his B rate as a mechanic. On
June 8, Morse prepared and placed in Armstrong 's personnel file a memorandum
of that conversation.
Armstrong , whom I do not credit, testified that he only had one conversation with
Morse, which occurred on May 24 when Armstrong asked for a raise. According
to Armstrong , Morse replied that he had not been in charge of maintenance long
enough to say whether Armstrong was deserving of a raise but that from what Morse
had seen of Armstrong 's work if he continued to improve he would go to Class A.
Somehow or other the subject of the Union came up. Armstrong could not recall
who brought the subject up but testified that Morse said that he knew Armstrong
was for the Union because two or three employees had told Morse that Armstrong
had asked them to sign a card Inasmuch as no union activity had started at that
time, which was the day Smithart originally contacted Bryan, such a statement was
not only incredible but would have been impossible Armstrong contended that he
had an authorization card of the Union in his pocket, and although he had not asked
any employees to sign and had not signed himself, had discussed the Union with
two other employees Obviously Armstrong could not have had a card or known
anything about the Union on that date . Armstrong further stated that Morse said
he could not talk about the Union on company time . Armstrong said he then asked
about the rumor of a plantwide raise which he had heard, and Morse replied that
while there had been talk of a general raise in the fall, he could not guarantee any
such raise if the Union was elected. Morse , whom I credit, denied that the Union
was ever discussed in any of the above three conversations with Armstrong. It is
clear that on April 7 and May 27 Morse had no knowledge of any union activities
by Armstrong.
1. The warning notice to Armstrong
The incident for which Armstrong received a written warning, alleged in the com-
plaint to have been because of his union activities , occurred on August 8. A takeup
reel in the hose department broke down . The function of the takeup reel was to
wind onto a reel the hose as it came off the production line. If the reel was shut
down the hose would pile up on the floor Scott , the foreman in that department,
called the maintenance department to have it fixed. Armstrong was sent. When he
got to the area, he shut off the machine. Scott , whom I credit, testified that the
breakdown occurred at about 5 minutes to 12 At 12 o 'clock he went to lunch as
usual When he came back at 12:30 , he found Armstrong standing in the break area
smoking a cigarette and talking to Grover Pope, the operator of the machine. The
machine was still shut off and the hose was running on the floor . Instead of proceed-
ing to repair the machine in the usual manner, which the record establishes required
the installation of a brush in the electric motor which took 10 or 15 minutes, Arm-
strong advised Pope and Scott that he wanted to shut the machine down for 2 hours
in order to make a different and more permanent repair. Scott and Pope both
opposed this . Armstrong , instead of proceeding to repair the machine , decided to
smoke a cigarette . Scott said that Pope was so mad about the machine being shut
down and the hose piling up all over the floor that he threatened to throw Armstrong
through the window. Scott told Armstrong that if he did not fix the takeup reel
immediately Scott was going to call his foreman Armstrong replied that he did not
care. Scott went to call Jones but could not get him. In the meantime Armstrong
left He returned a few minutes later and repaired the machine in the usual manner
by installing a set of brushes in about 10 or 15 minutes . Although the General
Counsel called Pope and he testified at length about another matter he was asked no
questions whatsoever about this incident.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After taking over Sides' duties about April 1, Morse had called all of the main-
tenance employees to a meeting and informed them that they were not to take smoke
breaks during work hours except one in the morning and one in the afternoon at
scheduled times. Armstrong admitted that he knew this was the rule. In addition
he admitted that prior to Morse's assumption of the supervision of the maintenance
department , Sides had frequently warned the maintenance employees not to take
smoke breaks while their services were needed . Davis, the other electrical main-
tenance mechanic , was called by the General Counsel and testified that it was an
established rule that the mechanics were not to take smoke breaks while working on
a machine that was broken down. Armstrong contended that the maintenance
employees were permitted to smoke in the break areas while working on a part which
could be moved into such areas. This was undisputed but a nonsequitur , inasmuch
as the takeup reel could not be removed into the break area and had to be repaired
where it stood.
Morse did not witness the incident . It was reported to him the following day by
Jones, Armstrong 's foreman . Morse interviewed Jones, Scott , and Armstrong and
heard Armstrong's version of the incident before issuing a written warning on
August 9. Morse said. that after Armstrong admitted that he had broken the rule by
stopping to take a smoke break instead of repairing the machine , and because he had
argued with Scott about shutting the machine down for 2 hours rather than the usual
10 or 15 minutes instead of reporting the matter to Armstrong 's foreman as required,
Morse decided to give Armstrong a written final warning concerning his poor work
performance and violation of Respondent 's rules. The warning , dated August 9
instead of August 12 as alleged , was entitled a final notice of poor work performance
and referred to both Armstrong 's performance on the job and his violation of the
smoke break rule. Armstrong signed the written warning notice. The evidence in
the record , including Armstrong 's admissions , clearly establishes that the warning
notice was for cause . There is no evidence in the record whatsoever , other than
Respondent 's knowledge that Armstrong was active in the Union 's organizational
drive, that this warning notice was issued because of his union activities. I find that
the General Counsel has failed to sustain his burden of proof that this warning notice
was issued because of Armstrong' s union activities , as alleged in the complaint.
2. Armstrong 's overtime
The complaint alleged that Respondent reduced Armstrong 's overtime from
June 20 until September 16, the date of his discharge for good cause , because of his
union or concerted activities . Respondent 's records establish that Armstrong did
receive less overtime work during the months of June, July, August , and September
than he had in the past. However, the record also establishes several sound reasons
therefor . Respondent 's maintenance department was divided into two sections.
Jones was the foreman of one section . He had under him four maintenance employ-
ees: Armstrong , Davis, Roberts, and Kline. The other maintenance employees were
general maintenance employees under Foreman Rye. Armstrong was employed pri-
marily in electrical breakdown and installation work . Davis performed the same
kind of work and they were the only two electrical repairmen . Davis also worked
on air controls and activators and assisted to some extent in the repair of instruments.
Roberts' primary function was the repair and maintenance of the various instruments
in the plant . Armstrong did not do this type of work because he was not qualified
therefor . Kline in general took care of the boiler , refrigeration , and chiller main-
tenance work . The General Counsel placed in evidence Armstrong 's, Davis', and
Roberts' overtime records for the period in question . These records establish that
during the months of July, August , and September to the date of his discharge,
Armstrong worked less overtime than Roberts or Davis, and also worked less over-
time than he did in the months preceding July. However, there is no basis for a
comparison of overtime between Armstrong and Roberts , because Roberts was
engaged primarily in instrument repair work , which Armstrong admittedly was not
qualified to do.
Armstrong contended that he was discriminated against in the assignment of
overtime because of his union activities , as alleged in the complaint . It was undisputed
that Armstrong 's primary job was electrical maintenance , including both installation
and repairs . When this was unavailable he did some refrigeration maintenance.
Overtime work was normally not scheduled by Respondent unless it involved a
breakdown or the installation of some equipment needed immediately. Saturday work
was classified as overtime. On direct examination Armstrong testified that he was
deprived of overtime work starting June 1, and that during the months of June,
July, and August he never asked to be off on a Saturday. However, on cross-
examination he changed his testimony and said that the deprivation of his overtime
MONROE MANUFACTURING CO. 33
began about July 1, and admitted that during the summer months he had requested
to be off on Saturdays. When requested to work on Saturday mornings he had
asked Morse not to be assigned because of the cost of driving from his home to
the plant.
Armstrong referred to two specific instances in which he claimed he was dis-
criminatorily deprived of overtime and another maintenance employee assigned the
work instead. One involved the checking of the controls system of a chiller in the
compound department. As a matter of fact, that day Morse had assigned Kline,
whose principal maintenance job was taking care of the chillers, to check the con-
trol system, which was apparently faulty, in the compound department. This involved
periodic checks of the temperature but did not require Kline's constant presence.
As a result he was from time to time engaged elsewhere. After a shift change,
someone on the new shift reported to the maintenance department that the chiller
in the compound department was not working properly. Armstrong was sent to
check it. While he was working on the chiller, Kline returned to the job with Morse.
Both Armstrong and Kline continued working on it until quitting time. At that
point, Morse told Armstrong to go home and Kline to finish the job. Morse instructed
Kline to finish the job not only because it was his regular job, but because he had
started it, which was Respondent's usual practice, as Armstrong admitted. The other
instance involved an occasion when Armstrong and Davis were working on the
repair of an extruder which had shorted. When quitting time arrived, the foreman
told Davis to finish the job and Armstrong to leave. The record establishes that the
foreman asked Davis to complete the job because he had to stay to finish another
job anyway. This occurred around the first of June, prior to the period alleged in
the complaint and contended for by Armstrong.
The record establishes at least four specific reasons why Armstrong's overtime
declined during the summer of 1965. The first was because the electrical maintenance
work, which was his primary function, involved mainly breakdowns and the installa-
tion of new equipment, and the number of breakdowns had substantially declined by
this time, because Respondent had become more proficient in the operation of its
new equipment and had replaced some of the equipment to prevent such break-
downs. The latter occurred just prior to the summer of 1965. The second reason was
established by Armstrong himself, when he admitted that during the summer months
of 1965 he had requested Morse not to be assigned overtime work on Saturdays
when he was scheduled to work a half day. Patently the elimination of Saturday
overtime would substantially reduce Armstrong's net overtime. The third reason
was that while Davis and Roberts had more overtime during that summer than
Armstrong, Roberts performed all of the instrument repair work and Davis from
time to time assisted in such work, which Armstrong was not qualified to do. The
fourth reason was because Morse, in view of his experiences with and opinion of
Armstrong's work, heretofore discussed, decided that he preferred not to have
Armstrong perform overtime electrical maintenance because at such time he was
not subject to supervision, and so advised Jones, Armstrong's foreman.
Other than Respondent's admitted knowledge of Armstrong's union activities,
there is no evidence in the record that Respondent discriminatorily reduced Arm-
strong's overtime because of his union activity. Morse, whom I credit, testified that
Armstrong's union activity had no effect whatsoever on his job assignments or his
overtime assignments. Perhaps the most convincing proof is the case of Clyde
Gray. As previously found herein, Gray and Armstrong were the two most active
adherents of the Union after Bryan's defection, and their activity was well known by
Respondent. Nevertheless Gray received more overtime work than any other em-
ployee in his department. I find that the General Counsel has failed to sustain
his burden of proof that Respondent discriminatorily reduced Armstrong's over-
time because of his union activity, as alleged in the complaint.
E. Refusal to bargain
1. The appropriate unit
The complaint alleged, the Regional Director found in the representation case,
and I find that the following constitutes a unit appropriate for the purposes of collec-
tive bargaining within the meaning of the Act:
All production and maintenance employees and truckdrivers at Respondent's
Aberdeen, Mississippi, plant, excluding all office clerical employees, guards, and
supervisors as defined in the Act.
264-047-67-vol. 162-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Applicable principles
As previously noted, this is a Bernel Foam type refusal-to-bargain case, based
upon an alleged majority of validly executed cards authorizing the Union as the
exclusive bargaining representative of the employees and a bad-faith refusal by
Respondent to recognize or bargain with the Union. In such cases the General
Counsel has the burden of proving both that the union did in fact represent a
valid majority of the employees in the appropriate unit at the time of the request
or refusal to bargain and that the employer in bad faith refused to bargain with the
union.5 With respect to the first burden of proof, i.e., that the union did in fact
represent a majority at the appropriate time, the General Counsel must prove a
majority of valid authorization cards not secured by coercion or significant mis-
representation as to purpose, e.g., it is now settled that a representation by the
solicitor that the purpose of the card is "only," "merely," or "just" to secure an
election, will vitiate such cards, whereas a dual representation that it is both for
an election and authorization, or a simple statement that it is for an election, with-
out the use of "only" or a synonym, will not vitiate the otherwise clear purport
of a printed authorization card.6
With respect to the other burden of proof, i.e, that the employer in bad faith
refused to bargain, this is normally established by proof that the employer either
had completely rejected the collective-bargaining principle and had no good-faith
doubt of the majority representation or merely desired time to engage in unfair
labor practices designed to dissipate or destroy the union's majority, prevent a
fair election, and cause the union to lose.? Numerous decisions of the Board and
the courts have held that where an employer engages in unfair labor practices in
fact dissipating the union's majority status, the Board not only may order bar-
gaining upon proof of the union 's prior status, but in fact such action is the only
appropriate remedy, because ordering a new election would only ensure to the
employer the fruits of such misconduct and amount to an exercise in futility.8
Thus it follows, and the Board has held, that a mere refusal of recognition, even
when the union offers to prove its majority status, and the insistence on an elec-
tion, absent either conduct evidencing a rejection of the collective-bargaining prin-
ciple and no good-faith doubt or unfair labor practices designed to dissipate the
union's majority, does not constitute a refusal to bargain in violation of the Act.9
GAaron Brothers Company of California, 158 NLRB 1077 (1966) ; Southbridge Sheet
Metal Works, Inc, 158 NLRB 819 (1966) , Strydel, Incorporated, 156 NLRB 1185
(1966 ) ; Jan Mfg., Inc., 156 NLRB 643 (1966) Harvard Coated Products Co, 156 NLRB
162 (1965 ) ; John P. Serpa, Inc., 155 NLRB 99 (1965). Cf. NL.R.B Y. Johnnie's Poultry
Co., 344 F 2d 617 (C A 8, 1965).
6 Bauer Welding , Inc v. N L R B., 358 F 2d 766 (C A. 8, 1966) ; N.L R B v Gotham
Shoe Co., 359 F.2d 684 (CA 2, 1966) ; N.L R B v. Security Plating Co , 356 F 2d 725
(C.A 9, 1966) ; N.L R B. v. C. J. Glasgow Co , 356 F 2d 476 (C A. 7, 1966) ; Happach v.
N L.R B., 353 F. 2d 629 (C.A. 7, 1965) ; N L R.B. v. Cumberland Shoe Corp, 351 F.2d
917 (C.A. 6, 1965) ; NLRB. v. Ifoehler's Wholesale Restaurant Supply, 328 F 2d 770
(C.A. 7, 1964) ; Lake Butler Apparel Company, 158 NLRB 863 (1966) , Southbridge
Sheet Metal Works, Inc., 158 NLRB 819 (1966). Cf. N.L.R B v. Peterson Brothers, Inc,
342 F.2d (C.A. 5, 1965) Englewood Lumber Company, 130 NLRB 394 (1961).
7 Aaron Brothers Company of California, 158 NLRB 1077 (1966) ; Strydel, Incorpo-
rated, 156 NLRB 1185 (1966) ; Jem Mfg., Inc., 156 NLRB 643 ( 1966 ) ; John P. Serpa,
Inc, 155 NLRB 99 (1965 ) ; Hammond & Irving, Incorporated, 154 NLRB 1071 (1965)
Kellogg Mills , 147 NLRB 342 (1964) ; and Snow & Sons , 134 NLRB 709 (1961)
8 N L.R B v. Movie Star, Inc, 361 F 2d 346 (C.A 5, 1966) ; N.L.R B. v. Gotham Shoe
Mfg. Co., 359 F.2d 684 (C.A. 2, 1966) N.LR.B v. Primrose Super Market of Salem, 353
F.2d 675 (C A. 1, 1965) Matthews & Co v. N L R.B , 354 F 2d 432 (C A. 8, 1965)
SNC Mfg. Co. v. N.L.R B., 352 F 2d 361 (C.A.D C, 1965) ; Colson Corp. v N.L R B , 347
F.2d 128 (C A. 8, 1965) N.L.R B. v. Winn-Dixie, Inc., 341 F 2d 750 (C A. 6, 1965)
Florence Printing Co v. N.L.R B., 333 F 2d 289 (C A. 4, 1965) ; Joy Silk Mills, Inc v
N.L.R B, 185 F.2d 732 (CAD C, 1950), cert. denied 341 U S 914 (1951) ; Preston Prod-
uct Company, Inc, 158 NLRB 322 (1966) ; Lifetime Door Company, 158 NLRB 13
(1966) ; Jam Mfg., Inc., 156 NLRB 643 (1966) ; Hamburg Shirt Corporation, 156 NLRB
511 (1965).
9 Aaron Brothers Company of California, 158 NLRB 1077 (1966) ; Southbridge Sheet
Metal Works, Inc., 158 NLRB 819 (1966) Strydel Incorporated, 156 NLRB 1185
(1966) ; Jem Mfg, Inc., 156 NLRB 643 (1966) ; Harvard Coated Products Co., 156 NLRB
162 (1965) ; John P. Serpa, Inc., 155 NLRB 99 (1965) ; Hammond & Irving, Incorporated,
154 NLRB 1071 (1965) ; Snow & Sons, 134 NLRB 709 (1961) ; ef. N L R B. v. Johnnie's
Poultry Co ., 344 F.2d 617 (C.A. 8, 1965).
MONROE MANUFACTURING CO. 35
Furthermore, even where the employer has engaged in minimal unfair labor prac-
tices, e.g., the unlawful interrogation of 6 employees out of a unit of 110, this
does not of itself vitiate the employer's good-faith doubt that the Union represents
a majority of the employees.10
3. The request and refusal
The complaint alleged that since June 8 the Union had been designated by a
majority of the employees as their bargaining representative, that the Union then
and more particularly on June 12 requested Respondent to bargain, and that since
June 8 Respondent refused to recognize or bargain with the Union. The Union
began its organizational drive on May 25 by the distribution of the authorization
cards throughout the plant by Bryan and his six or seven unnamed assistants. At
the union meeting on June 2, Smithart received approximately 60 signed authoriza-
tion cards from Bryan and his assistants. Between June 2 and 8 Smithart received
approximately 10 additional signed cards. On June 8, Smithart wrote to Respondent
advising it that the Union represented a majority of its employees and requesting
that it recognize and bargain with the Union. The record establishes that on that
date Respondent had 122 employees in the appropriate unit and the Union had 68
signed authorization cards. Assuming their validity, this of course was a majority
of the employees in the appropriate unit. Between then and Respondent's answer of
June 11, refusing recognition upon the basis of its belief that the Union did not
represent a majority and suggesting that it seek a Board election, the Union secured
four additional signed cards and Respondent hired two additional employees.
Smithart, in his reply of June 12, suggested an independent card check to deter-
mine majority and stated that he did not believe that a representation election could
be held without antiunion interference preventing the employees from making a
free choice. Before receiving any reply thereto, on June 16 he filed with the Board
his petition for an election together with the signed authorization cards. On June 17
Respondent replied to Smithart's letter of June 12, reiterating its belief that the Union
did not represent a majority, stating that such belief was reinforced by Smithart's
refusal to seek an election, again suggesting a Board-conducted election as the
appropriate method to protect the rights of the employees, and denying as without
basis Smithart's statement that there could not be a representation election without
antiunion interference preventing a free choice. Two additional cards were received
by the Union after this final letter and refusal to bargain. Obviously they cannot
be included in determining whether or not the Union represented a majority of the
employees in the appropriate unit at the time of Respondent's refusal to bargain.
In any event, at the time of the refusals to bargain on June 11 and 17, the Union
had authorization cards signed by 72 of the employees in the unit, which then had
124 employees.
4. The authorization cards
Although the Union possessed a clear majority of signed authorization cards
at the time of its request and Respondent's refusal to bargain (72 out of 124
employees), the record establishes beyond doubt that a substantial number of these
cards were vitiated by misrepresentation as to the purpose of the cards made to the
employee signers by the solicitors before or at the time the cards were signed.
As noted above, it is now well settled that where employees are told before signing
a union authorization card that its only purpose is to secure an election , such cards
are without validity and cannot be counted in determining the union's majority.
Substantially all of the card signers were called by the General Counsel. The record
establishes that at least 25 of the 72 cards were obtained upon a representation to
each signer that the only purpose of signing the card was to secure an election.
Respondent contends that some 52 of the card signers testified that they were told
before signing that the only purpose of the card was to secure an election . However,
the record reveals that a substantial number of these 52 signers were told that "the
purpose" or "a purpose" of the cards was to secure an election, but were not told
that such was the "only" purpose for signing the card. The cases heretofore dis-
cussed clearly establish that where the representation is that a purpose or one purpose
of the card is to secure an election, such does not vitiate the card or contradict its
otherwise clear import. The vitiation of the card by that type of representation is
limited to the situation where the employee is told that it is "just," "only," "merely,"
or "solely" for an election and no other purpose.
10 Hammond d Irving, Incorporated, 154 NLRB 1071 (1965) ; N L.R B. v. Great Atlantic
d Pactfie Tea Co , 346 F 2d 936 (C A. 5, 1965).
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would serve no useful purpose to review in detail the testimony of all of the
card signers who testified. In summary, an analysis of the testimony of each reveals
that 25 of them specifically were told that the only purpose of the card was to,
secure an election." In this connection a number of the card solicitors, including
Bryan, who undoubtedly was the principal one, in addition to telling many prospec-
tive signers that the only purpose was to secure an election, confirmed this mis-
representation by advising them that the Union needed 50 or more percent of the
cards signed to secure an election, and that the signers would be free to vote as they
pleased. While these latter representations standing alone would not be sufficient to
vitiate the cards, coupled with the representation that the only purpose of the
card was to secure an election they clearly had the effect of enhancing that mis-
representation and persuading reluctant signers that all they were doing was signing
a card solely for the purpose of securing an election on the union question. The
record reveals that several employees signed cards even though they were firmly
antiunion and never did change their opinion, because they were willing to go along
with the rest of the employees in having an election. It seems clear that although
antiunion they favored the democratic principle of majority rule and its determina-
tion by an election.
A number of the card signers testified that in addition to being told that the
only purpose of a card was to secure an election they were told that the cards,
would be destroyed after the election or if the Union lost the election. This also
enhanced the misrepresentation as to their purpose. Several signers testified that,
after being told that the only purpose of the card was an election, they signed the
cards without reading them. In this connection, it developed during the hearing that
Respondent's counsel, in preparation of its defense, had interviewed and secured
signed statements from a substantial number of the employee card signers. The
record establishes, and I find, that Respondent's counsel meticulously observed the
criteria established by the Board in Johnnie's Poultry 12 for the proper method of
conducting such interviews, and that they properly and ethically conducted such
interviews in appropriate representation of their client's interests. While Smithart_
denied that he instructed any card solicitor, including Bryan, to advise prospective
signers that the card was only for an election or that the Union needed 50 percent-
or more signed to secure an election, and it seems highly improbable that Smithart.
would have done so, nevertheless the record establishes clearly that at least 25 of
the employees were specifically told before they signed the card that its only-
purpose was to secure an election.
An analysis of the other 47 cards reveals that 35 of the cards were properly
signed, 7 are on the doubtful side which doubt I have resolved in favor of the
Union,13 and 5 were rejected from evidence for lack of proper identification. Assum-
ing that all such cards were valid makes a total of only 47, substantially less than,
the required majority. (Coincidentally, adding the 2 cards signed after Respond--
ent's final letter to those assumed valid results in a total of 49 cards, and 50 em-
ployees voted for the Union in the election.) It follows and I find that the Union
did not in fact represent a majority of the employees in the appropriate unit at
the time of the request and refusal to bargain.
5. Bad faith
In addition to the requirement that the General Counsel must establish that the
Union in fact represented a majority of the employees at the time of the request or-
refusal to bargain, he also has the burden of proving that Respondent in bad faith
refused to recognize and bargain with the Union. As noted above, absent conduct-
evidencing a rejection of the collective-bargaining principle and no good-faith doubt,
or unfair labor practices designed to dissipate the Union's majority, Respondent's
mere refusal to bargain and insistence on an election does not demonstrate bad
faith. Although the burden of proof is on the General Counsel to establish bad
faith, substantial evidence in the record affirmatively establishes Respondent's good-
faith doubt in refusing to recognize the Union and insisting on an election. Prior-
Specifically, the 25 cards are General Counsel's Exhibits 14(1), (0), (j), (u), (b), (d),
(w), (p), -(h), (v), (t), and (q) and 14 (z)-27, 11, 38, 29, 36, 7, 4, 17, 25, and 8 and
16 (b), (g), and (j)
t2 Johnnie's Poultry Co , 146 NLRB 770 (1964).
is In view of the established principles discussed above, that a dual representation, or a
representation that "a" purpose of the card was to secure an election as distinguished'
from a representation that that was its only purpose, or the signer's understanding or
subjective state of mind concerning the purpose of the card, do not vitiate it.
MONROE MANUFACTURING CO. 37
to the receipt on June 9 of Smithart's request to bargain at least five employees
contacted and advised Ferguson that although they had signed a union card they
were not going to join or vote for the Union. Perhaps more significantly, Bryan
contacted and advised Ferguson that Bryan and his six or seven assistants who
had been the leaders in securing the employees' signatures had decided to back off
from and no longer support the Union. In the light of this evidence, perhaps un-
known to the Union, a reasonable person might well have concluded that the
Union's claim of representing a majority of the employees rested on very shaky if
not untenable grounds.
In addition, it was Respondent's view, as expressed in its letters to the Union,
that the employees were entitled to an election because they were not familiar
with unions and organizational campaigns and were entitled to hear both sides
in order to make an intelligent choice. It would not appear-to be bad faith for
Respondent to wish to present its side of the case to the employees. If, on the other
hand, Respondent had merely desired time or delay within which to engage in acts
of interference, restraint, and coercion, such as threats, promises, or other forms of
interference, in order to dissipate the Union's majority and prevent its election,
then, as is well settled by the decisions of the Board and the courts, Respondent
should not be heard to contend that its refusal to bargain was based upon an
alleged good-faith doubt that the Union. represented a majority. As found herein-
above, Respondent engaged in no such conduct throughout the relevant period.
Furthermore, there is no evidence that Respondent rejected the principles of col-
lective bargaining and had no good-faith doubt that the Union in fact represented
a majority of the employees in the appropriate unit. Thus, assuming arguendo that
the Union did represent a majority of the employees, I conclude and find that the
General Counsel has failed to sustain his burden of proving that Respondent in bad
faith refused to recognize and bargain with the Union.
6 Concluding findings
Based upon the foregoing findings, I conclude and find that the Union did not in
fact represent a majority of the employees in the appropriate unit at the time of
the request and refusal to bargain, and that Respondent did not in bad faith refuse
to bargain with the Union, and that therefore the General Counsel has failed to
sustain the burden of proving that Respondent refused to bargain with the Union
in violation of Section 8 (a) (5) of the Act.
It follows, and I find, that Respondent did not engage in any unfair labor prac-
tices in order to undermine the Union and destroy its majority, as alleged in the
complaint.
IV. REPORT ON OBJECTIONS
As noted above, all of the objections to conduct affecting the election consolidated
for hearing with the complaint, specifically objections IX and parts of objections
I, IV, and V, were not included among the allegations of the complaint. I have con-
cluded and found above that Respondent did not engage in any unfair labor prac-
tices in violation of the Act, and accordingly conclude and find that those objections
encompassed within the allegations of the complaint have not been proven and hence
did not constitute conduct interfering with or affecting the result of the election.
With respect to the remaining objections not encompassed within the allegations
of the complaint, objection IX alleged that Respondent separated, isolated, and
excluded known union sympathizers from other employees during working hours
to impair the Union's campaign. There is no evidence of any such activity in the
record. Accordingly, I conclude and find that this objection is without merit and
should not be sustained. Objection I encompassed threats to withhold benefits, as
well as promises of benefits as alleged in the complaint. Based upon the foregoing
findings of fact and the entire record herein, I conclude and find that there is no
merit to this objection and no proof in support thereof. Objection IV alleged in
part that Ferguson solicited signed union authorization cards from a union sym-
pathizer who had such cards in his possession, for the purpose of determining who
the union sympathizers were so that reprisals could be taken against them. No
such evidence is found in the record. Accordingly, I conclude and find that this
objection is without merit and should not be sustained. Objection V alleged in part
that Ferguson's speech to the employees on August 17 in effect told them that
the choice of the Union would be a futile, useless, and idle gesture. Ferguson's
speech was received in evidence. An examination thereof fails to disclose, either
directly or in effect, any such statement to the employees. I conclude and find
that this objection is without merit and should not be sustained.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director's order directing the consolidation of the hearings on the
objections and the complaint further directed that thereafter the case be trans-
ferred to and continued before the Board. Having concluded and found that the
objections certified for hearing with the complaint have not been sustained by reli-
able, probative, and substantial evidence, and as the Union did not receive a majority
of the valid votes cast, I recommend that the Board certify the results of the
election.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce, and the Union is a labor organization,
within the meaning of the Act.
2. Respondent has not, as alleged in the complaint, discriminated against, or
interfered with, restrained, or coerced, its employees within the meaning of Sec-
tion 8(a)(3) and (1) of the Act, or refused to bargain with the Union within the
meaning of Section 8 (a) (5) and (1) of the Act.
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
IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the objections to the election of August 19, 1965, in
Case 26-RC-2425 be, and they hereby are, overruled.
As I have overruled the objections, and as the tally of ballots shows that United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, did not
receive a majority of the valid votes cast in the election, I shall certify the results
of that election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS HEREBY CERTIFIED that a majority of the valid votes has not been cast for
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and
that said labor organization is not the exclusive representative of the employees in
the appropriate unit within the meaning of Section 9(a) of the National Labor
Relations Act.
Bradenton Coca-Cola Bottling Company, also d/b/a Sarasota
Coca-Cola Bottling Company of Sarasota, Florida and Citrus,
Cannery, Food Processing and Allied Workers, Drivers, Ware-
housemen and Helpers Local Union No. 173, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 12-CA-3419. December 13,1966
DECISION AND ORDER
On August 26, 1966, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
162 NLRB No. 7.