Dixisteel Buildings, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1970

186 N.L.R.B. 393 (N.L.R.B. 1970)

DIXISTEEL BUILDINGS, INC. 393
Dixisteel Buildings , Inc. and Local 93, Sheet Metal
Workers International Association, AFL-CIO.
Cases 14-CA-5227 and 14-RC-6230
November 6, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 5, 1970, Trial Examiner Stanley N.
Ohlbaum 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. The Trial Exam-
iner also found that the Respondent had not engaged
in other unfair labor practices alleged in the com-
plaint. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief.
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.
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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Dixisteel Building, Inc.,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Trial Examiner: This consolidat-
ed proceeding 1 under the National Labor Relations Act as
amended , 29 U.S.C. Sec. 151 et seq. (Act) was tried before
me in the county courthouse at New London, Missouri, on
1 Case 14-CA-5227, charge filed August 8 , 1969, amended charge filed
September 11, 1969, and complaint issued by the Regional Director for
Region 14 of the National Labor Relations Board on October 16, 1969.
Case 14-RC-6230, stipulation for certification upon consent election dated
August 6, 1969, approved by the Regional Director on August 7 and
representation election conducted under Regional Director's auspices on
January 26 through February 2, 1970, with all parties
participating throughout in person or through counsel and
afforded full opportunity to adduce testimonial and
documentary proof, cross-examine, propose findings and
conclusions, argue orally, and file briefs. Subsequent to
trial, briefs were received which, together with all evidence
and contentions presented, have been carefully considered.
The chief issues presented are (1) whether Respondent
Employer, in violation of Section 8(a)(1) of the Act (a)
conducted surveillance over its employees' protected
concerted activities (i.e., a union meeting), (b) coercively
interrogated its employees, at various times and places
through various persons, concerning their protected
organizational activities and desires, (c) made promises of
economic betterments to its employees if they would refrain
from exercising their organizational rights under the Act,
(d) made threats to its employees of the futility of their
attempted exercise of organizational rights guaranteed
under the Act, and (e) made threats of economic detriment
to its employees if they did not refrain from exercising
organizational rights under the Act; (2) whether Respon-
dent, in violation of Section 8(a)(3) and (1) of the Act (a)
suspended its employee Harry Rouse and (b) discharged its
employee Terry Coons, because of their exercise of rights
secured by the Act; (3) whether Respondent, in violation of
Section 8(a)(5) and (1) of the Act (a) has refused to
recognize and bargain collectively with the Union as the
duly designated collective-bargaining representative of an
appropriate bargaining unit of Respondent's employees,
but (b) has instead engaged in the foregoing alleged
violations of the Act in order to undermine and destroy the
majority representative status of the Union; and (4)(a)
whether the results of a Board-conducted election on
September 9 should be set aside by reason of the foregoing
alleged conduct on the part of the Employer in interference
with the conduct of that election and (b) if the election be
set aside, the appropriate remedy.
Upon the entire record2 and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
II. PARTIES ; JURISDICTION
At all material times, Respondent Dixisteel Buildings,
Inc., has been and is a Delaware corporation with its home
office in Atlanta, Georgia, and an office and plant in
Hannibal, Missouri, engaged in manufacture, sale, and
distribution of prefabricated metal buildings and related
products. During the representative year of 1969, at and
from its said Hannibal plant (the facility involved in this
proceeding), Respondent in the course of its business
operations manufactured, sold, and distributed, directly in
interstate commerce to places outside of Missouri, products
valued in excess of $50,000.
September 9, 1969; objections to election filed by petitioner (Union) on
September 16, 1969 ; Regional Director's report on objections, order
directing hearing, and order consolidating cases, issued on October 22,
1969. Unless otherwise specified , all date references hereafter are to 1969.
2 Trial transcript as corrected by my April 10, 1970, order on notice.
186 NLRB No. 25
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; that the above Union
(Charging Party) has at all those times been and is a labor
organization within the meaning of Section 2(5) of the Act;
and that assertion of jurisdiction in this proceeding is
proper.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The chief locus of the events about to be described is
Respondent's plant in Hannibal, Missouri, where it
manufactures and whence it distributes prefabricated metal
buildings or structures or the portions and parts involved in
their assembly. Ralph Gross is manager of that plant; John
Baughman , general foreman; and Kenny Kendall and Ed
Cunningham, foremen, respectively, of the dayshift and
nightshift. Bruce Monical, formerly dayshift foreman of the
Hannibal plant, has since October 1, 1968, been Respon-
dent's district sales representative for the Western States;
during the period with which the instant case is concerned,
Monical has visited, functioned, and been involved in
activities at the Hannibal plant to the extent described
below. Respondent admits that, of the foregoing persons, at
all times material herein all other than Monical have been
its supervisors and agents within the meaning of the Act.
It is conceded that on July 3, 1969, the Charging Party
(Union) requested Respondent to recognize and bargain
with it as the alleged collective-bargaining representative of
a majority of Respondent's production and maintenance
employees and that Respondent has at all times since then
refused to do so. The Charging Party alleges that, instead of
recognizing and bargaining with it, Respondent thereupon
embarked on a course of unlawful labor practices to
undermine and destroy its status and to cause it to lose, by a
vote of 41 to 29, the representation election held on the
following September 9. The Charging Party, together with
General Counsel, contends that Respondent's unfair labor
practices in the 9-week period intervening between its
bargaining request and the election have among other
things been of such a nature as to have polluted the
atmosphere essential to a fair election and therefore to
justify a bargaining order based on the Union's majority
status when it made its bargaining request.
The complaint alleges 1 episode of surveillance, 15
episodes of interrogation,3 7 episodes of economic allure-
ments, 7 threats of futility of organizational efforts, and 17
threats (involving 11 episodes) of economic detriments, or,
in all, some 47 "independent" violations of Section 8(axl)
of the Act4, as well as 2 alleged violations of Section 8(a)(3),
and also alleged continuing violations of Section 8(a)(5) of
the Act. For reasons of simplicity and clarity these will be
considered chronologically under the section of the Act
primarily involved.
3 Le., Complaint , paras . 5E, H, I, J, L, 0, R, T, U, Z, EE, GG, JJ, MM,
NN, and 00 . Although there are 16 separate allegations of interrogation,
these actually comprise only 15 alleged incidents , since, as indicated by
General Counsel's bill of particulars as well as at the trial, paras . 50 and 5R
involve the same alleged incident.
4 Although separately pleaded , the 47 "independent" 8(a)(]) violations
are comprised in some 22 alleged separate incidents . As will be shown, not
B. Section 8(a)(1) Violations
1. March 28
It is alleged (Complaint, paras. 5B and C) that on or
about March 28, Dixisteel Hannibal Plant Manager Ralph
Gross delivered a speech to the employees of that plant,
assembled during working hours, implying that selection of
a unions would be futile since they stood to gain nothing
thereby and might even lose existing benefits and that
union endeavors for improved working conditions would
entail strikes involving violence and employment loss. The
text of this speech has been stipulated by the parties (G.C.
Exh. 4).
In the speech, consisting of a prepared text which Gross
read, he cautioned the employees that because "an outside
group is involved" he was reading his remarks since he
would "have to be careful what [I] say." He informed them
that "we are opposed to this attempt by the union to get
your money because we believe that the union will not
benefit either you, or your company." He reminded them
that the Company could provide jobs for them only if it
made money, which was accomplished through competi-
tion in which the Union would not assist. He warned the
employees that "a union will not benefit the employees here
in Hannibal." He placed the employees on notice that there
was no need for them to organize collectively, since if a
nearby unionized plant, organized by the same Union in
Tallapoosa, "receives any wage or benefit increase you will
receive the same or more." Reviewing the plant' s existing
fringe benefits, he reminded the employees that in the
absence of a union there had been "regular work at a good
wage" without layoffs or short workweeks, adding that "I
urge you to consider all the factors before you make a
decision." He cautioned employees not to "give up your
rights as guaranteed by law by signing a union card,"
explaining that "by signing a union card you may be giving
up your right to cast a secret ballot." He urged the workers
that "before you sign a card get a written guarantee from the
organizer that he will get you a better deal." He painted the
picture that in the event of unionization there was no
requirement that the "Company must agree" to union
demands, since the "only way" the Company could be
"force[d]" to agree would be "by pulling you out on strike,"
at which time the employees would "lose wages and
possibly your job . . . when the strike is over there may not
be a job for you." He pointed out to employees that "Our
Steel Division just ended a 6 month strike in Atlanta. It will
be years and years before those employees earn back the
money they lost by being out of work for 6 months. Some
may never catch up. Strikes often bring violence . I saw in
this morning's paper that 2 strikers at the Royal Typewriter
plant in Springfield shot a 10 year old boy? We don't want
this type of thing to happen in Hannibal." Stating to the
employees that "Unions are a business just like our business
all of these alleged incidents occurred within the period intervening
between the Union's recognitional request (July 3) and the election
(September 9), the "critical period" for election interference purposes.
5 At this time the Steelworkers , a union other than the Charging Party
herein , was apparently involved in unionization efforts by or directed
toward Dixisteel Hannibal plant employees.
DIXISTEEL BUILDINGS, INC. 395
or any other business except they make their money by
selling memberships and collecting dues," he informed
them that "Having a union is like having a third hand in
your pocket or another mouth to feed at your table." He
told the employees, "We can solve our problems without
unions and the strikes they bring with them. Look what
strikes have done to Hannibal. First there was International
Shoe, and they moved most of their operation away. Then
there was Custom Aire, and next Wendt-Sonis. The union
did nothing for the employees of these plants but put them
out of a job." Gross concluded with, "I hope each of you
have a good weekend."
It is evident from the described remarks that Respondent
was unalterably opposed to representation of its Hannibal
employees by a union and that it made no bones about it.
That this was its legal right there can be no question. In
several substantial respects, however, the speech-an
important one, evidently designed to carry "punch," since
delivered to employees assembled to listen to it at the
Company's expense during worktime---went beyond this. It
not merely seethed with union hostility, but it hovered on
the edge of misleadingness (in the total context here
presented, warning employees not to "give up your rights as
guaranteed by law by signing a union card, "without
indicating that signing a union card is itself a right
guaranteed by law; so as, in the context presented, in effect
to warn employees that collective bargaining was a
surrender of or would result in loss of rights, rather than the
exercise of a right secured to them by law). It carried the
clear message of the futility of the employees' attempted
exercise of the organizational rights guaranteed to them by
Congress under the Act. It was also pregnant with threat in
the event their exercise of those rights reached effective
culmination.
Gross was reading a carefully prepared "speech" to his
assembled small-town factory hands. This was not a lecture
to a group of sophisticated practitioners or students of
labor law. A small-town factory floor, and not a university
amphitheater, is the stage on which his speech-as well as
the other actions and words of Respondent, to be
described-must be viewed. We are required to heed the
lesson we have received that "A word is not a crystal,
transparent and unchanged, it is the skin of a living thought
and may vary greatly in color and content according to the
circumstances and the time in which it is used" (Holmes, J.,
in Towne v. Eisner, 245 U.S. 418, 425), and that "Words are
not pebbles in alien juxtaposition; they have only a
communal existence ; and not only does the meaning of
each interpenetrate the other, but all in their aggragate take
their purport from the setting in which they are used, of
which the relation between the speaker and the hearer is
perhaps the most important part" (Learned Hand, J., in
N.L.R.B. v. Federbush C., Inc., 121 F.2d 954,95,7; C.A.2).
While it is true that Gross' speech contains much that is
unexceptionable, it is also true that the unexceptionable
was combined with sufficient that is exceptionable to
contaminate and therefore require condemnation of the
end product as something other than a bland comestible
suitable for the consumption of small-town factory hands.
"What to an outsider will be no more than the vigorous
presentation of a conviction, to an employee may be the
manifestation of a determination which it is not safe to
thwart." ( Federbush, supra, 957.) Even assuming it could
ever be satisfactorily supplied, "proof positive" that certain
statements contained in a hash of other statements actually
coerced employees is unessential to establish violation of
Section 8(a)(1). Violation is made out "even though the
statements may not be directly coercive, if they could be
reasonably so construed by the employee" (N.L.R.B. v.
Electric Steam Radiator Corporation, 321 F.2d 733, 736
(C.A. 6); see also, Wausau Steel Corporation v. N.L.R.B.,
377 F.2d. 369, 372 (C.A. 7); N.L.R.B. v. Fora 170 F.2d 735,
738 (C.A. 6), or if "the words used . . . in vacuo, may have
been innocent, in the context . . . in which the words were
spoken they can reasonably be regarded as ominous"
(Local 901, International Brotherhood of Teamsters v.
Compton, 291 F.2d 793, 797 (C.A. 1). The knuckles of the
"first inside the velvet glove" of which Mr. Justice Harlan
spoke for a united Court in N.L.R.B. v. Exchange Parts Co.,
375 U.S. 405, 409, are plainly evident in Gross' remarks,
which in overall effect comprised a warning to employees to
stay out of union affiliation. "Employees are not likely to
miss the inference that the source of benefits now conferred
is also the source from which future benefits must flow and
which may dry up if it is not obliged" ( Exchange Parts,
supra, 409). 1 believe it can fairly be said that, viewed in the
spectrum of small-town (and, as observed by me, scarcely
or at best modestly literate) factory workers (as distin-
guished from scholars or students of industrial relations
law), the skillfully tuned and selectively suggestive words of
the prepared speech read by Gross were in overall thrust
coercive in intent , timbre, and effect and therefore
constituted an impermissibly invasive interference with
employees' freedom to exercise the organizational rights
guaranteed to them by the Act, spared from such pressures
at the hands of the employer controlling their economic
destiny. The choice to exercise a right is not truly such if it
is made known in advance that the exercise of the right will
be futile at the hands of the person having the power to
translate the right into reality. "There is no more effective
way to dissuade employees from voting for a collective-
bargaining representative than to tell them that their votes
for such a representative will avail them nothing." The
Trane Co., 137 NLRB 1506, 1510; see also, N.L.R.B. v.
Electric City Dyeing Co., 178 F.2d 980, 981 (C.A. 3);
N.L.R.B. v. Gate City Cotton Mills, 167 F.2d 647, 648-49
(C.A. 5). Nor is the exercise of a right free if choked off by
threat of significant harm, such as job loss. ".. .
employees, who are particularly sensitive to rumors of plant
closings, take such hints [involving strikes, etc.] as coercive
threats rather than honest forecasts." N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575, 619-620.
It is accordingly found that General Counsel has
established the allegations of the complaint charging
violation of Section 8(a)(1) in this regard. See Gissel and
other cases cited above.6
6 Gross' clear implication, in his March 28 speech, that in the event of
unionization the employees would lose their right to present their own
grievances to management, was likewise misleading and contrary to law,
since such a right is statutory and exists even in the event of unionization.
(Continued)
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. March 29
The complaint (para . 5A) alleges that "on or about"
March 28 Respondent through its general foreman, John
Baughman, engaged in surveillance over Respondent's
employees attending a union meeting at a Hannibal union
hall.
The only witness presented by General Counsel in
support of this allegation was Respondent 's first-shift
welder Harry Rouse , who testified that in midafternoon of
the date in question , actually March 29 , a Saturday, he
observed Baughman seated in a Ford automobile near the
union hall (located about a mile and a half from the plant
and from Baughman's home) watching the entrance
through which 20-30 Dixisteel Hannibal plant employees
passed to attend a union organizational meeting.
Respondent 's Plant Manager Gross conceded that
through his plant foremen and others he "had been made
aware" of this Saturday , meeting and that , in fact, it was this
meeting which caused him on the day before (Friday) to
make the speech to plant employees which has been
described. However, the testimony of Baughman corrobo-
rated by his friends Robert E. Riney and James C. Cary as
well as a group photograph , establish that on the entire day
of Saturday , March 29 , from early morning to midevening
he was in St . Louis-a distance of approximately 125 miles
from Hannibal- attending his (Baughman 's and also
Riney's and Cary's) induction rites (as well as on the full
two preceding Saturdays , March 15 and March 22, in
preparations therefor) to an advanced degree in a fraternal
organization of which he (together with Riney and Cary)
was a member . Baughman also denied categorically that he
ever parked near the union hall to observe persons entering
and leaving . He further denied owning or operating an
automobile of the description in question around the time
involved.
Although favorably impressed with the testimonial
demeanor of Rouse , nevertheless , in this aspect of the case,
I accept Baughman's denial , strongly corroborated as it is,
that he was not present at or anywhere near the union hall
on the date alleged . While I would be prepared to believe
that Rouse may be honestly mistaken as to the precise date
involved , I cannot-particularly in view of Baughman's
strenuous denials that he at any time had the union hall
under observation or surveillance , and his undisproved
insistence that he neither owned nor operated an automo-
bile of the description given by Rouse-base a finding of
surveillance on speculation as to some unknown date not
alleged, Respondent not having been fairly apprised in a
pleading (nor even at the trial) of the precise accusation it is
being called on to meet so that it could have fair
opportunity (such as in the case of the date of March 29) to
disprove it.7
Under the circumstances, therefore , I find that General
Henry' I. Siegel Co., Inc. v. N.LR.B., 417 F.2d 1206, 1215 (C.A. 6);
N.L.R.B. v. Graber Manufacturing Company, 382 F.2d 990, 991 (C.A. 7).
7 It is noted that because of Rouse's testimony that the union meeting in
question was a Steelworkers organizational meeting and his uncertainty as
to the precise date thereof , coupled with the absence of claim by
Baughman that he was in St . Louis on April 5 (the Saturday after March
29), counsel for General Counsel indicated at the trial that, in view of
Baughman 's unanticipated "alibi" proof, counsel of General Counsel
Counsel has failed to establish by the required fair
preponderance of substantial credible evidence that
Respondent through Baughman engaged in surveillance of
Respondent's employees, protected organizational activi-
ties in Hannibal on or about March 28 as alleged in the
complaint.
3. May 21
It is alleged (Complaint, para. 5D) that on or about May
21 Respondent's Plant Manager Gross promised its
employees benefits if they would refrain from union
representation and threatened them with loss of existing
benefits if they selected the Union to represent them.
As in the case of Gross' March 28 speech, which has been
discussed, his May 21 address likewise was delivered to a
mandatory assemblage of plant employees during the
Company's paid working time, and the text of his remarks,
which he again read, has been stipulated. According to
Gross, the May 21 occasion was precipitated by his having
learned that there was renewed organizational activity
among the employees at the plant, this time involving the
Sheet Metal Workers (the Charging Party herein).
Reminding the employees on May 21 of his talk to them
"several weeks ago" (March 28) and stating that he desired
"to talk with you again today for a few minutes about that
same subject," he again indicated it was necessary for him
to "read what I have to say" so as to avoid misunderstand-
ing, since "when an outside group is involved, you have to
be careful what you say." Gross proceeded to reiterate that,
as he had "said before and I want to say again," the
Company remained "opposed to the attempt being made
by the Union to get your money" since "the Union will not
benefit you or your company" because the Company could
"provide jobs for you" only if it remained "competitive."
He expressly pointed out that "We have promised you
before, and I want to repeat, that whatever increase in
benefits or wages that are granted under the Union
Contract [of the Steelworkers Union with the plant in
Tallapoosa], will be installed here for you," but "without
[your] having to pay Union dues." He again pointedly
reminded the assembled employees that in the past there
had been no layoffs and indicated that "the future is
bright" for employees if they would "work and cooperate
together" with the Company-the clear implication being
to "work and cooperate together" without forming or
joining a union. He said, "I want to urge you to talk with
your foremen or with me if you have any problem," inviting
employees to deal with the Company directly or through a
"Shop Committee." He again-misleadingly, in my view,
for the reason outlined in connection with his March 28
speech-in the total context of the other portions of that
speech warned employees not to "give up your rights as
guaranteed by law by signing a Union Card." He again
intended to "investigate further into the matter of the [Steelworkers]
meeting and on what date it occurred . I feel that it may be possible to run
down a witness that may supply this information , and, accordingly, if I am
able to do so I anticipate to making an application to reopen the record for
the limited purpose of determining the date on which the Steel Workers
meeting did take place ." However, no such application has been made to
the Trial Examiner.
DIXISTEEL BUILDINGS, INC. 397
advised employees to insist on "a written guarantee .. .
before you sign a [union] card.."8 He assured employees
that "You know that you have a guarantee from the
Company that [with no union] you will get whatever is
negotiated with the Steelworkers Umon for employees in
Tallapoosa," whereas with a union "there is no guarantee
that you will have a Contract [even ] as good as the deal you
have now." Advising employees to "think . . . before you
act," he expressed confidence that when they considered
the "facts" which he had thus placed before them, they
would reject the Union "attempt . . . to get your money."
It is unnecessary to reiterate here the principles adverted
to above relative to Gross' March 28 speech, which are
equally applicable to his May 21 remarks. Upon the basis of
those principles, derived from legal authority there cited
and here deemed controlling, it is found that the described
remarks of May 21 likewise constituted a violation of
Section 8(a)(1).
4. June 16
The complaint (para. 5E) alleges that on or about June 16
Respondent through its General Foreman Baughman
interrogated an employee concerning his union sentiments
and the extent of employees' union support.
This is the first of no less that 15 alleged episodes of
interrogation of employees at the plant between June and
September concerning their union or other concerted
activities protected by the Act from employer interference,
restraint, or coercion.
As to the alleged incident of June 16, the employee
involved, first-shift panel mill operator Monty (Monte)
Graham, testified that on the midweek workdate in
question, about a month after he had joined the Union,
Dixisteel General Foreman Baughman-concededly "the
second man in charge of the Hannibal plant," sent him a
message at home to come to Baughman's house, where he
offered Graham a better and higher-paying job, for which
Graham had put in a bid-i.e., panel mill operator (his
present job) instead of maintenance helper-starting the
next day. On the way out, according to Graham, within
earshot of Respondent's Office Manager Jerry Stone,9
Baughman asked him, "Say, Monte, what about this union?
Do you think it's strong enough, or who, you know, if
they want it, or do you think it's, you know, not going too
good." Graham replied that "there was a few of them
wanting it and a few that didn't, but most of them seemed
to be wanting the union." Baughman thereupon remarked
that he "had some relation that was in union, but said that
was everybody's own opinion whether they wanted a union
or not." This was the one and only occasion on which
Graham had been asked to come to Baughman's home, and
Graham was unable to suggest why.io
Respondent's General Foreman Baughman conceded
8 That such a "guarantee" could result in voiding an election won by
the union, cf, e g., Graphic Arts Finishing Co, Inc v N L R B, 380 F.2d
893 (C A 4), NL RB v. Bonnie Enterprises, Inc, 341 F 2d 712 (C A 4),
N ER B v Gorbea, Perez & More!!, S en C, 328 F 2d 679 (C.A 1), Wagner
Electric Corp, 167 NLRB No 75. It may be of interest to note that,
although Respondent itself was thus egging on its employees to insist on "a
written guarantee " from the Umon as to betterments , Respondent itself
later , in its affirmative defense interposed herein but withdrawn at the trial,
took the position that any such promissory statements by the Union
that he called Graham to come to Baughman's home on
June 16 to discuss the better job on which Graham had bid
and that Jerry Stone was there.ii Conceding also that the
Union was discussed at this time but professing to be
unable to "recall who brought the subject up," Baughman
testified that Graham told him that although he had been
"involved" with a prior union at the plant he "wasn't
having anything to do with this one." Baughman otherwise
either disputed Graham's described testimony or professed
to be unable to "recall" various matters which it
encompassed. Asked on direct examination whether he
inquired of Graham "who was in favor of the union or who
wanted it or words to that effect," after first answering in
the negative Baughman again stated he was unable to
"recall." However, on cross-examination, Baughman
conceded that it might indeed have been he (Baughman)
who "brought up the subject of the union in the [June 16]
conversation."
Since Graham impressed me as a truthful witness and
since Baughman demonstrated significant recollective
difficulties, including professed inability even to "recall
who brought the subject [of the Union] up," and it seems
unlikely to me that Graham would have brought the subject
up since there was no apparent reason for him to do so, nor
to volunteer the kind of information attributed to him by
Baughman, I credit Graham's version of the incident in
question and find that he was interrogated by Baughman
on the occasion described.
5. June 26
It is alleged (Complaint, paras., 5F and G) that on or
about June 26 Respondent caused to be delivered to its
employees a letter (G.C. Exh. 6) wherein it threatened them
with loss of existing employment opportunities if they chose
to be represented by the Union and that it would not enter
into agreement with the Union until after a lengthy strike.
That the letters in question were dispatched by Respon-
dent, and their content, are stipulated.
The letters in question, signed by Respondent's Plant
Manager Gross and addressed to employees individually
by their Christian names, start with the familiar refrain,
"Once again, as has happened in the past, a union is trying
to organize your company." It continues: "In the past, I
have talked to you about this, and you have told us you to
[sic ] do not want a union." Indicating that it was designed
to "tell you our side," among other things it again-as in
Gross' speeches on the occasions of the employees' earlier
organizational activities involving the Steelworkers (March
28, supra ) as well as the Sheet Metal Workers (May 21,
constituted union interference with the election sufficient to render any
certification improper without another election
9 Stone , Respondent 's office manager working directly under Plant
Manager Gross, was not produced by either side
is According to Graham on cross-examination , "I thought it was funny,
you know, being called up to his [Baughman's] house when most of the
time stuff like that is taken care] of in the front office during working
hours."
11 See In, 9, supra
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supra )-pointedly speaks of "layoff," but this time adds the
word "shutdown" 12 stating, "Have we ever had a
shutdown, or layoff here? The answer is NO but under our
union contract we have." Also taking exception to the
employees' choice of union, Gross this time advised them
that "this union [i.e., Sheet Metal Workers] does not
generally represent workers in our industry. About half of
this industry is non-union and of the other half practically
none of the workers are represented by the Sheet Metal
Union." 13 Once again, Gross advised the employees to
"ask them [i.e., the Union] to guarantee their promises in
writing. That is only fair. They won't because nothing is
automatic if you get a union." 14 Gross wrote the
handwriting on the wall: "Long negotiations can mean
strikes. A six month strike was just recently ended with the
parent company. Who can afford to be out of work for 6
months?" 15 Again, as in his previous speeches, Gross
concluded with the pointed warning that employees who
would "think about all these things" would "see as you
have before that a union is not what you need."
Since Gross' described letter of June 26 to employees is of
a piece with the prepared texts of the speeches which he
read to them on March 28 and May 21, described above, on
the occasions of the previous attempts by Respondent's
employees to exercise their statutorily guaranteed right to
bargain collectively with Respondent, free of such re-
straints and fetters, it is as well found that the allegations of
the complaint, based on the June 26 letter, have likewise
been established in this respect.
dealings or knew of anyone that had dealings with the Sheet
Metal Workers [Union], and I told him no. And then he
asked me if I thought it was strong enough to come in, or
not. I told him that I thought it was real strong, and he
asked me, then, if I had attended any of the meetings, and I
told him yes, that I didn't think it was any more than right
for an employee to know what was going on in the plant."
Testifying on this subject, Respondent's General Fore-
man Baughman cenceded that he asked Graham at his
machine "If he [Graham] knew anything about the Sheet
Metal Workers Union or anybody 16 that had been involved
with them before." On cross-examination, Baughman
amplified this by adding that "I [Baughman] started the
conversation. I told him [Graham] that we had talked
about this one time before, in other words, we had had a
discussion at my house. We were talking about it before.
That's where I started the conversation there." According
to Baughman, Graham merely said "he didn't want to
discuss it" or "didn't want to talk about it."
After observing Graham's testimonial demeanor closely,
I cannot bring myself to believe that he fabricated his
account of the July 1 conversation with Baughman , who, as
indicated, concededly had some recollective deficiencies or
difficulties at least in other respects. Graham testified
forthrightly, directly, and convincingly, and I credit his
version of the July 1 incident. It is accordingly found that
on July 1 Graham was interrogated by Baughman
concerning his and other employees' protected concerted
activities.
6. July 1
It is alleged (Complaint, par. 5H) that on or about July 1
Respondent's General Foreman Baughman interrogated an
employee concerning his union sentiments and activities
and the Union's strength among employees.
The employee in question, Respondent's first-shift panel
mill operator, Graham, who, it will be recalled, was also the
object of interrogation by Baughman on June 16 when he
was promoted to a better job, testified that on July 1, while
at work at his machine, Baughman approached him in
connection with some work. As Baughman started to leave,
he remarked, "`Oh, yeah, Monte [Graham], I [Baughman]
know we talked about this once before, but if you don't
mind I would like to talk to you again about it,' he
[Baughman] said. This was about the union, he
[Baughman] wanted to know if I [Graham] had any
12 That threats, hints, or suggestions of plant shutdown constitute
unlawful interference, restraint , and coercion of employees under these
circumstance , see, e.g., N.L.R.B. v. Gissel Packing Company, 395 U.S. 575,
618-20; Textile Workers Union of America Y. Darlington Manufacturing Co.,
380 U.S. 268, 274, fn. 20 ; N.L.R.B. v. Exhange Parts Co., 375 U .S. 405, 409;
N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. 469, 477, 478; Holly
Hill Lumber Company v. NLR.B ., 380 F.2d 838, 841 (C.A. 4); The Little
Rock Downtowner, Inc., 143 NLRB 887, enfd. as modified , 341 F.2d 1020
(C.A. 8); N.L.R. B. v. Eastern Die Co., 340 F.2d 607, 608 (C.A. 1), cert,
denied 381 U.S. 951 Florence Printing Co. v. N.L.R.B., 333 F.2d 289, 290
N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d 614, 616 (C.A. 6),
cert, denied , 377 U.S. 906 ; United Fireworks Manufactures Co. v. N.LR.B.,
525 F.2d 428 , 430 (C.A. 6).
13 Respondent's action is reminiscent of the action of the employer
disapprovingly described by the Supreme Court in Brooks v. NLR.B., 348
U.S. 96, 103, as an attempt by the employer "to vindicate the rights of his
employees to select their bargaining representative ." "The right of
7. July 3
The complaint (paras . 7, 8, 9, and 10) alleges that since
July 3 Respondent has refused to bargain collectively with
the Charging Party (Union), notwithstanding a request by
the latter as the duly authorized collective -bargaining
representative of a majority of Respondent's employees in
an appropriate bargaining unit.
Reference to this aspect of the case is made at this point
for chronological reasons only . The matter will be
considered in detail under 8 (a)(5) violations , infra, "III D."
8. July 3
The complaint (para. 5J), as amplified by a bill of
particulars, alleges that on or about July 5 Respondent
through its Plant Manager Gross interrogated another
employees to be represented by officials of their own choice doubtless must
outweigh any principle of persona non grata." N.L.R.B. v. Signal
Manufacturing Co., 351 F.2d 471 (C.A. 1), cert. denied 382 U.S. 985.
14 That such a written promise could justify setting aside a Union
victory in a representation election, see fn . 8, supra To suggest to
employees, as Respondent did, that the Union would necessarily have
ulterior motives in failing or refusing to make any such "promise" or to
"guarantee" it "in writing" was substantially misleading, since the Union
could only have done so at the cost of imperilling an election result and
itself committing an unfair labor practice.
15 As Chief Justice Warren recently pointed out for the unanimous
Court in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575 at 619, there
can hardly have been basis for such a dire picture , since no bargaining had
started, nor even been agreed to by Respondent.
16 On cross-examination , Baughman varied "anybody" to "any other
people" (emphasis supplied).
DIXISTEEL BUILDINGS, INC.
employee concerning his and other employees' union
sentiments.
The employee in question, Respondent's dayshift plate
shearer, Richard Lee Askew, testified that on July 3 Plant
Manager Gross, while driving Askew to the hospital,
"asked me [Askew] what the trouble was in the shop and he
[Gross] asked me about the union, what I thought about it.
I said I didn't know what all the gripes was about and
that they was talking about a union . . . He asked me what
I thought of it." Askew, at the trial demonstrating marked
hostility to General Counsel, professed to be unable to
remember anything further concerning this incident "right
now." However, after being shown a pretrial affidavit
which he admitted executing on October 2, he professed,
with ill-concealed reluctance, to remember some more
"after reading the statement," thereupon conceding that on
the occasion in question Gross also asked him "how I
[Askew ] thought things would turn out in the union" and
"what I thought about the union," to which he replied that
"I didn't know how they would turn out" and that "I didn't
know whether I'd like it or not."
Concerning this incident, Plant Manager Gross professed
to be unable to "recall" who "initiated" the conversation 17,
the only portion of which he was allegedly able to
remember being that he learned from Askew "that the
union was quite active at that time" and "that in his [i.e.,
Askew's] opinion the activity was relatively more intense
than it had been in the Steel Workers [i.e., on a previous
occasion, when the Steelworkers Union had unsuccessfully
sought to organize the plant]." Gross testified on direct
examination that he could not "recall" asking Askew what
he thought about the union and denied asking him how
things would turn out in connection with the organizational
drive or what was the trouble in the shop. On cross-
examination, however, Gross characterized this as merely
"improbable, in my opinion," adding that "I [Gross ] don't
know anything for certain"; and he testified that he merely
did not "recall" asking Askew these questions. Conceding
that he did not consider Askew to be a prevaricator with
respect to the matters in question which "I [Gross] don't
recall," Gross acknowledged that he did not attribute to
Askew fabrication on the matters regarding which Askew
had testified but on which Gross' memory was "imperfect."
Comparing testimonial demeanor in this aspect, and
considering Gross' equivocating recollectional process as
demonstrated, as well as the admissions wrung from
Askew-a most reluctant witness, visibly hostile to General
Counsel and seemingly intent on currying favor with his
employer at the trial18-1 credit Askew's testimony, as
"refreshed" by his pretrial affidavit, that he was indeed
interrogated, as described, by Dixisteel Plant Manager
Gross, on July 3, concerning his and other employees'
protected concerted activities.
lr Shortly after so testifying on direct examination , in response to a
question by the Trial Examiner, Gross stated flatly that "I [Gross] did not
initiate a conversation concerning the union with Mr. Askew." Gross then
indicated that he was "able to remember . now" that it was Askew who
initiated it. However , on cross-examination Gross again testified that he
was unable to recall how this conversation came about or who brought up
the subject of the union.
18 At the trial, Askew exhibited unconcealed truculence toward counsel
399
9. July 5
The complaint (para. 51) alleges that on July 5
Respondent through its General Foreman Baughman
interrogated still another employee regarding his union
sentiments.
The employee in question, Respondent's first-shift spray
painter, Jim Porter, testified that in the shop on July 5
General Foreman Baughman "asked me [Porter] what I
thought about a union . . . I told him if it got in, it was all
right; if it didn't it was all right."
Denying that July 5 was a workday, Baughman
nevertheless conceded on direct examination that he "could
have had some discussion with him [Porter], yes," around
July 5 "about the union around the plant." Questioned, also
on direct examination, whether he asked Porter "what he
thought about the union," Baughman's response was, "I
don't remember."
Under these circumstances, since my reaction to Porter's
testimonial demeanor at least in this aspect was favorable,
and his described testimony for practical purposes stands
undenied, crediting Porter I find that on the occasion in
question, around July 5, he was interrogated by Baughman
concerning his union sentiments.
10. August 7
Respondent is alleged (Complaint, paras. 6A and D) to
have suspended its employee Harry Rouse on August 7
because of union or other protected concerted activity.
This allegation, which will be considered in detail under
Respondent's alleged Section 8(a)(3) violations, infra, "III
C I," is referred to at this point for chronological reasons
only.
11. August 11 (Monica] re Lear)
The complaint alleges (para. 5T) that further interroga-
tion by Respondent took place in the Hannibal plant on or
about August 11 by Respondent, in this instance through its
agent and supervisor, Bruce Monical, and involving its
employee, Charles Harold Lear, concerning his and other
employees' union activities and sentiments.
Inasmuch as Respondent disputes the supervisory and
agency status of Monical, who is implicated not merely in
the interrogation of Lear but in various other alleged
violations of the Act, it is necessary preliminarily to
consider his status.
a. Status of Bruce Monica!; facts as found
Bruce Momcal was day-shift foreman at the Dixisteel
Hannibal, Missouri , plant until October 1, 1968, when he
was appointed to be the Dixisteel western states regional
sales representative . Before entering upon his new responsi-
bility, Monical completed an orientation course at the
for General Counsel, who attempted with varying success to make Askew
hew to the pretrial affidavit which he had furnished to a Board investigator
at a time when there is no indication that Askew had any object to tell
other than the truth-as distinguished from the trial , when he testified
under the watchful eye of his employer (i e , Gross), toward whom his
shifting testimonial gaze was observed constantly to wander uneasily. See
International Union , UAW v N LR.B (Preston Products Corp), 392 F 2d
801, 807-808 (C .A.D C), cert denied 392 U.S. 906 , Gissel, supra, 608.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dixisteel Main Office or headquarters in Atlanta, Georgia.
He then moved to Denver, Colorado, which was to serve as
his base of operations. As western states regional sales
representative for Dixisteel products, the western territory
is assigned exclusively to Monical. He is one of only about
a dozen such representatives for the entire United States.
Monical's immediate superior is Regional Sales Manager
Neerland who is one of two regional sales managers for the
entire country and has 5 regional sales representatives
under him and who reports directly to the Company's main
office in Atlanta. As regional sales representative, Monical
himself has nobody working directly under him.
Since leaving the Hannibal plant in his capacity of
foreman in the Fall of 1968, Monical has returned there on
a number of occasions. Various employee witnesses
testifying in this proceeding identified Monical as their
previous foreman, who had several times returned to the
plant in his new capacity. In August (1969), when Monical
was at the Hannibal plant for some 10 days in the official
capacity to be described, Respondent's welder Hooper
exhibited the quality of his welding to Monical, because (as
Hooper testified) Monical "sold the [Dixisteel
prefabricated] buildings. These things that I [Hooper]
welded went into the buildings. I made the door jambs and
window jambs and frames and stuff like that."
From August 4 to 14, Monical was at the Hannibal plant
in the official capacity of temporary replacement for
Dixisteel Regional Sales Manager Neerland who in turn
was filling in at Dixisteel headquarters in Atlanta for
Dixisteel General Sales Manager Horner who was ill. While
there, Monical was established in Neerland's office, which
is located in the Hannibal plant adjoining the office of
Hannibal Plant Manager Gross, who has no authority
whatsoever (according to Gross' own testimony) over
Neerland (nor the latter over Gross). Both during direct
and cross-examination, Hannibal Plant Manager Gross
confirmed that he and Neerland "operated on approxi-
mately the same level in the hierarchy of the company."
While at the Hannibal plant in August, according to the
testimony of Hannibal Plant Manager Gross, Monical was
not under Gross but functioned directly under Dixisteel
Atlanta headquarters. Gross expressly conceded, also
during both direct and cross-examination, that there is "no
question" that "Mr. Monical is an agent of the Company."
It is established through the undisputed testimony of
various Hannibal employees that Monical was circulating
around among them in the shop when he was there in the
described capacity in August-at the height of the
employees' union organizational activity and shortly before
the Board-conducted representation election of September
9-talking to them individually. (Monical even called at
least one employee-Porter- into General Foreman
Baughman's office to discuss union organizational matters
with him.) Although Plant Manager Gross denies knowing
about this, his denial is unconvincing in view of the open
and unconcealed nature and the quantitative extent of
Monical's activities (to be described) among the employees
during the August period in question, as well as the
length- 10 days-of that period. Gross himself testified, "I
[Gross ] am in the shop at least twice a day and I make it a
practice of visiting with various folks as I go through the
shop and very often they indicate to me some of the things
that are going on; if they don't, the foremen do.. . . They
[employees] don't come to me; as I go through the shop and
discuss business with employees or discuss personal affairs
with them, which I do, this subject [of the Union] has come
up.... I go into my plant all the time . I'm out there a good
bit of the time. I go to work stations where men are working
to see what they are doing and how they are doing it and on
various occasions lots of things...." Gross conceded on
cross-examination that Monical was in the plant prod-
uction area "with my [i.e., Gross'] knowledge" and that at
no time did he (Gross) "ever talk with Mr. Monical or warn
him against talking to employees in the production area";
further, that he (Gross) "didn' t mind his [i.e., Monical's]
using company time for this.... I did not object, maybe I
should have, but I didn't." To Respondent' s counsel's
question on direct examination, "Did he [Monical] receive
any direction or instruction from the company insofar as
activities of the union campaign," Gross' response was,
"No, sir." (This is consistent with the widespread activities
of Monical among the plant employees during the critical
August preelection period in question .) Under these
circumstances, it seems most unlikely, and I cannot bring
myself to believe, that Gross was unaware of the nature of
Monical's August activities among the plant employees.
Gross concedes that at no time did he "take any steps to
disavow anything that Monical might have said to .. .
employees" during the period in question in August.19
b. Discussion and conclusions
General Counsel has alleged that Monical is both a
supervisor and an agent of the Company. In the described
circumstances , Respondent contends he is neither.
It is unnecessary to establish that Monical was a
"supervisor," since in the circumstances shown here such a
finding is unessential as a basis for holding Respondent
accountable for his actions. Former Foreman Monical was
the stand-in for Dixisteel Regional Sales Manager Neer-
land and was established in Neerland's office adjoining that
of Dixisteel Hannibal Plant Manager Gross. According to
Gross' own testimony neither Neerland nor Monical was
subordinate to Gross but, on the contrary, operated at the
same managemental hierarchical level as Gross. By reason
of these facts, in a very real sense Monical-who was
known to the employees as their previous foreman, who
had evidently advanced to even greener pastures up the
ladder of success in the Company's organization-stood for
management and the Company's point of view and position
in the eyes of the rank-and-file employees among whom he
freely circulated in the plant during their and his paid
worktime in the critical preelection period. Like Gross (and
Neerland), Monical's line of authority stemmed directly
from company headquarters in Atlanta. There is little
warrant for supposing, in the described circumstances, that
Monical's activities vis-a-vis the rank-and-file
employees-coinciding as they did with the Company's
19 As has been pointed out (fn. 1, supra ), the complaint was issued on charge of September 11, all of which were served on Respondent.
October 16, preceded by the original charge of August 8 and the amended
DIXISTEEL BUILDINGS, INC. 401
avowed principles, interests , and objectives in opposition to
plant unionization or organizational activity by the
employees-were those of Monical personally, as distin-
guished from those of the employer or whose premises and
paid worktime they were uninterruptedly accomplished.
Thus, whether or not Monical was a "supervisor" within the
meaning of the Act is not controlling; what is controlling is
that, even if he was not a "supervisor," he filled the shoes of
top management and to the rank-and-file employees he
stood for the Company, his words to them in a manner of
speaking coming "straight from the horse's mouth,"
thereby making the Company accountable for his words
and deeds.
Shop Rite Foods, Inc., 141 NLRB 1013, also involved
statements to employees by one who, while actually or
ostensibly not a "supervisor" within the statutory defini-
tion, was nevertheless identified with management in the
eyes of employees. Holding the Company to be accounta-
ble for his actions even if not a "Supervisor," it was there
stated at 1021:
"Even if [Hogue] was not [a supervisor within the
meaning of the Act], his statement to [employee]
Hunnicutt that Respondent's president would close the
Warehouse (if it should become unionized) is neverthe-
less chargeable to the Respondent. The Respondent had
put Hogue in a position to be identified with
management in the eyes of the employees and to
translate to them the policies and desires of manage-
ment." As a known former Plant Foreman who had
therafter presumably advanced himself on the ladder of
the Company's hierarchy, in the eyes of the employees
here, Monical was presumably "a person who was
acquainted with Respondent's policies and desires with
regard to the Union and the effect of unionization on
the [factory]. [Id.]
And the plain fact of the matter is that here Respondent did
nothing to disabuse the employees of the notions implanted
in their minds by Monical, although Respondent could
readily have done so. By electing not to do so, Respondent
sought to capitalize on the supposed benefits to it from
Monical's actions-which were identical to its own
viewpoint and desires and which directly furthered its own
intersts and objectives in the situation-while at the same
time conveniently seeking to insulate itself from the
statutory prohibitions on such actions. Cf. Solo Cup
Company, 114 NLRB 121, 123, enfd. 237 F.2d 521, 524
(C.A. 8); Time-O-Matic, Inc., v. N.L.R.B.,264 F. 2d96,
99-:100(C; A. 7) ; McKinnon Services, Inc., 174 NLRB No.
169.
Moreover, in any case, Monical was here in fact and in
law Respondent's agent. Indeed, at the trial Hannibal Plant
Manager Gross several times expressly acknowledged
Monical's status as Respondent's agent. In so doing, Gross
neither misspoke nor was his concession more than the
circumstances require. Our point of departure in this regard
is the admonition written into the Act as Section 2(13):
In determining whether any person is acting as an
`agent' of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
It has been emphasized in the clearest of terms that narrow
common law concepts of respondeat superior do not govern
situations with which proceedings such as this are
concerned. "It is true of a union as of an employer that it
may be responsible for acts which it has not expressly
authorized or which might not be attributable to it on strict
application of the rules of respondeat superior. International
Association of Machinists v. Labor Board 311 U.S. 72, 80;
Heinz Co. v. Labor Board, 311 U.S. 514." Milk Wagon
Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287,
295. It is further to be observed, however, that agency
through releasing an actor into operation on a set stage, so
to speak, or through ratification, knowledgeable acceptance
or retention of the fruits of the disputed agent's actions, or
through failure to disavow, are firmly recognized even
under technical common law concepts of agency. See:
Restatement (Second) Agency, ch. 4; Henry I. Siegel Co.,
Inc. v. N. L. R B., 417 F.2d 1206 (C.A. 6); Amalgamated
Clothing Workers of America, AFL-CIO v. N.LRB., 371
F.2d 740, 744 (C.A.D.C.); Intertype Company v. N.LR.B.,
371 F.2d 787, 788 (C.A. 4); Colson Corporation v. N.LRB.,
347 F.2d 128, 137 (C.A. 8), cert. denied 382 U.S. 904. As
stated by the Supreme Court in International Association of
Machinists, etc. v. N.L.R.B., cited in Respondent's brief, 311
U.S. 72, 80:
We are dealing here not with private rights nor
with technical concepts pertinent to an employer's legal
responsibility to third persons for acts of his servants,
but with a clear legislative policy to free the collective
bargaining process from all taint of an employer's
compulsion, domination, or influence. The existence of
that interference must be determined by careful
scrutiny of all the factors, often subtle, which restrain
the employees' choice and for which the employer may
fairly be said to be responsible.
Respondent's argument that Monical's activities were
without the knowledge or acquiescence of Gross is wide of
the mark in several respects. To begin with , for reasons
already explicated, this has not been satisfactorily estab-
lished to have been the fact, and the evidence to my mind
indicates the contrary, as I have found. It is hardly likely
that Monical's open and unconcealed circulation among
employees in the plant over a 10-day period was
unobserved by Gross and his immediate subordinate
supervisory assistants . Moreover, Gross' own testimony
shows that Monical operated at the same level of the
Company's managerial hierarchy as Gross himself (i.e.,
directly responsible to the Company's Atlanta headquar-
ters); thus, in any event Gross had no authority to proscribe
such activities on the part of Monical. Indeed, Gross
concedes he did not do so; and the record rather clearly
shows that Monical's activities were of a piece and
character with those of Gross himself. No superior of
Monical was produced to testify to any facts indicative of
lack of authority on the part of Monical (any more than on
the part of Gross) to do and say what he undisputedly did
and said.
Much is sought by Respondent to be made of the fact
that Monical may have indicated to some of the employees
that he had not been told to talk to them, or that he was
doing this on his own, or even that he had been told not to
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talk to employees about the Union. Particularly in the
circumstances described, I am unimpressed by this
argument. To begin with, just who, if anybody, told this to
Monical, or, indeed, if it had any element of truth about it
at all, has not been established, since Respondent elected
not to have Monical testify. The action of an employer's
emissary or agent in prefacing unlawful interrogation,
interference, and coercion with the statement that he is not
supposed to be engaging in it hardly avoids for him or his
principal its consequences. Such attempted provisos are
suggestive of a clever ploy to reap the benefits, while
seeking immunity from the dangers, of actions which the
actor himself recognizes to be improper. If permitted, an
employer could thereby hide behind the skirts of his agent
who on behalf of the employer engages in interference,
restraint, and coercion of employees in promotion of the
employer's openly avowed objective of preventing employ-
ees from exercising their statutory rights to bargain
collectively. Cf. Nopco Chemical Company, 138 NLRB 1275,
1280, and cases there cited. For these reasons, Monical's
described "confessions," in certain instances, during the
course of unlawful actions toward employees, were hardly
more than self-serving disavowals. In short, the essential
character of an act is not changed, nor its consequences
avoided, by the actor's ° mere advance disclaimer-
particularly when it takes nontestimonial form-if in fact
the act is unlawful.
It is also suggested by Respondent that Monical's
activities are being overemphasized, since his actions were
intended as friendly gestures toward old acquaintances.
While the existence, to say nothing of the quality, of such
"friendship" may be questioned 20, it is not
likely-"friendship" or no-that such pronouncements
straight from one close to the seat of authority, on the grave
hazards to continuance of existing employment opportuni-
ties and benefits, would be taken with other than the utmost
seriousness by employees dependent for their livelihood on
their jobs. Cf. N.L.R.B. v. Marval Poultry Company, Inc.,
292 F.2d 454 (C.A. 4); Caster Mold & Machine Company,
Inc., 145 NLRB 1614, 1621. The warning was long ago
sounded that "executives who threaten in jest run the risk
that those subject to their power might take them in earnest
and conclude the remarks to be coercive." A.P. Green Fire
Brick Company v. N.L.R.B., 326 F.2d 910, 914 (C.A. 8). See
also, Kingwood Mining Company, 166 NLRB 957, 958.
"Even though such statements may be expressive of
opinion only, if their reasonable tendency is coercive in
effect, they are violative of Section 8(a)(1)." N.L.R.B. v.
Kingsford, 313 F.2d 826, 832 (C.A. 6), and cases cited. See
also, N.L.R.B. v. Gissel, 395 U.S. 575, 616-20; Metropolitan
Life Insurance Company, 166 NLRB 553; Little Rock
Hardboard Company, 140 NLRB 264, 266-67. "Employees
are not likely to miss the inference that the source of
benefits now conferred is also the source from which future
benefits must flow and which may dry up if, it is not
obliged." (Harlan, J. in N.L.R.B. v. Exchange Parts Co., 375
U.S. 405, 409.) If Monical was not serious about what he
was telling the employees, or if he intended his remarks to
be taken lightly, he could have said so, or, better still,
refrained from them altogether under the circumstances. I
reject Respondent's contention that it may not be held
accountable for Monical's actions because they were casual
episodes engendered and executed in a spirit of beneficent
friendship.
As already indicated, I am not unaware that Monical was
not produced to testify, although he was presumably
readily available to Respondent for that purpose. Consider-
ing that it was totally unexplained21, this failure seems
somehwat suspicious or suggestive that Respondent did not
wish to expose him to examination under oath as to some or
all of the many material facts on which his testimony could
have been assistive.
In view of all of the circumstances and considerations
shown, it is found and concluded that at the times here
material, in relation to the actions to be described, even
though Monical was not a "supervisor" (as defined by the
Act) over the Dixisteel Hannibal production and mainte-
nance employees here involved, he was with relation
thereto an agent (as defined by the Act) of Respondent and
that Respondent is here properly answerable for those
actions.
We return to consideration of the earliest of the actions
ascribed to Monical; namely, interrogation of employees at
the plant on August 11.22 This episode-one of several
such-is said to have involved Respondent's loader Charles
Harold Lear, who testified that on August 11, while at work
on the plant loading dock, Monical, whom Lear knew as
the former day-shift plant foreman:
asked me [Lear] did I think the union would get in, and
I told him that I didn't know, but that I hoped so, and
that I had a problem because I was tired of people
telling me to shut up and I don't want to hear any more
of your [i.e., Lear's? ] lip. At that time he [Monical ] got a
phone call and the 3:30 buzzer rang and I went home.
This episode was succeeded, according to Lear, by another
union-slanted incident the next day, this time involving two
other employees as well as Lear, described below; during
this incident, Monical asked Lear if he thought he "was
being treated fair" on the job. When Lear replied in the
negative, "he [Monical ] asked me [Lear ] why didn't I quit."
Lear replied that he did not want to start all over again
someplace else.
As already indicated, Monical did not testify; nor was
any explanation offered for Respondent's failure to call
him. Although Lear conceded on cross-examination that
Monical told him on August 11 that "the company had told
him [Monica!] not to say anything about the union to us
[employees]," as shown above this neither legalizes
Monical's actions nor, even if true (Monical did not testify),
does it insulate Respondent for responsibility therefor.
Indeed, statements of this nature sometimes may be bait to
induce employees to talk freely when otherwise they might
not, and they may carry more potentiality for the mischief
which the Act is designed to avoid, because of their
seemingly disinterested concern for the employee's welfare.
It cannot be said that when a high-level agent acting in the
20 "Thy friendship oft has made my heart to ache ; Do be my responsible for Monical 's actions.
enemy-for friendship 's sake ." (Blake, To Hagley) 22 Complaint , para. 5T.
21 Other, of course, than Respondent 's contention that it is simply not
DIXISTEEL BUILDINGS, INC.
employer's interest interrogates employees (or commits
other acts comprising unfair labor practices) the employer
is automatically absolved of liability therefor simply
because the agent intones the phrase that he was told not to
do what he is in fact doing. For one thing, the interrogated
employees have no way of knowing whether this is the
truth; for another, they have no way of knowing what will
be reported by the agent to the employer. Even if it be
assumed that the agent "exceeds" his authority-an
assumption which may be unwarranted-in his principal's
interest , on straight agency lines the principal may
nevertheless be held . N.LR.B. v. Solo Cup Company, 237
F.2d 521, 524 (C.A. 8); N.L.R.B. v. Acme Mattress Co., 192
F.2d 524, 527 (C.A. 7); Restatement (Second) Agency secs.
228-230,233-235.
Crediting the testimony of Lear, who impressed me as a
truthful witness, and in the absence of any countertestimo-
ny by Monical, I find that at Respondent's plant on or
about August 11, 1969, Respondent's employee Lear was
interrogated by its agent Momcal concerning employees'
protected concerted activities.
12. August 11 (Monical, re Brown)
The complaint (para. 5K), as amplified by a bill of
particulars, also alleges that on the same date (August 11)
Respondent through Monical implied to an employee that
it would be futile for Respondent's employees to be
represented by the Union.
This particular employee, Respondent's second-shift
welder Delford Eugene Brown, testified that on the
occasion in question Monical, whom he knew as the former
foreman, "in the front [of the plant] next to the offices .. .
brought up the subject of the union, and he [Monical ] said
he didn't think it would be a good idea for the union to be
voted in right now, because it would do more harm than it
would good." Most of the rest of the conversation
apparently concerned hunting, so far as Brown professed to
be able to recall.
Although Brown's testimony stands uncontroverted,
since Monical did not testify, nevertheless I believe the
stray remark attributed by him to Monical to be sufficiently
vague and insubstantial as to partake of the character of a
mere expression of opinion, privileged under Section 8(c) of
the Act, so as not to constitute interference, restraint, or
coercion, and I therefore find that proof of the allegation of
the complaint under immediate consideration has not been
sustained.
13. August 11 (Monical, re Hastings)
The complaint (paras. 5L, M, and N), as amplified by the
bill of particulars, further alleges that, also on August 11 in
the plant, Respondent through Monical interrogated
another employee concerning the Union, threatened the
employee with loss of seniority and work opportunities in
the event of unionization, implied that employee Harry
Rouse (discussed under "8(a)(3) Violations," infra, "III C
I "), had been disciplined by Respondent because of his
union activities, and threatened retaliation against other
employees if they chose to be represented by the Union.
Uncontradicted and uncross-examined testimony of the
403
employee in question, Respondent's first-shift layout
operator Glenn W. Hastings, Jr., an impressively credible
witness, established that on August 11, in Hastings' work
area in the plant, Monical, whom he recognized and knew
as the former plant foreman and whom he observed to be
circulating around in the plant production area talking to
other employees as well:
asked me how I was doing, I told him I was fine. Then
he asked me if I thought the union would get in, I told
him I didn't know. Then he asked me how long I had
been here. I told him a little over two years. And he told
me if the union would get in that I would lose all my
seniority and that I would have to start from scratch.
Then he said, `The Atlanta plant has a union, and it's no
good, because in the wintertime it's slow, the work is
slow, and up here it's not a union and they always found
something for you to do up here, but if they did go
union up here that the plant would have to cut down on
the hours.' He also said he'd hate to see the union get in
because he would see a lot of his friends hurt. . . . He
said if a union would get in that overtime would be cut
down and a lot of men would be laid off.
As already indicated, Hastings' testimony was in no way
either controverted or impeached, since Monical was not
called and Hastings was not cross-examined, and I was well
impressed by his testimonial demeanor. Crediting his
testimony, I accordingly find that the complaint allegations
in this aspect, except for the particular allegation (part of
para. 5N) pertaining to Rouse, have been established and
that Respondent through its agent Bruce Monical in its
plant on August 11 coercively interrogated and threatened
its employee Hastings in respect to rights secured to
employees by the Act.
14. August 12
The complaint (paras. 5V, W, X, and Y) additionally sets
forth that on August 12 in the plant Respondent through
Monical quizzed an employee as to what he thought he
stood to gain through union representation; implied that
union representation would be futile with the Company;
gave assurances of betterments in working conditions in the
event the employees withdrew their support of the Union;
and threatened loss of employment opportunities (overtime
work) and worsened working conditions if the employees
persisted in their attempted organizational efforts.
Credited testimony of the employee in question, Respon-
dent's loader Charles Harold Lear (who had already been
the subject of unlawful interrogation at Monical's hands on
the previous day, August 11 and whose favorable
testimonial impression on me has been mentioned),
established without contradiction that on the date in
question, in a small building near the factory loading dock,
Monical entered into a discussion with three employees,
including Lear. As described by Lear:
We got on the subject of the union somehow and Bruce
Monical said that he didn't see why we wanted a union.
He said that the union that was in the plant down south,
after it got in, it sold them out down the river. He said
after it got in that they assessed all the workers down
there $30 for union expenses and said that our union
dues would be $24 a month. He also talked about if the
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union wanted more money, all they had to do was go to
the office and tell the main office that they needed more
money and they would raise our union dues.
Then we got on the subject of my going to sleep in the
bathroom, which I went to sleep in the bathroom and
someone told on me and the foreman, Baughman, wrote
it up in my file. Mr. Monical told me that if the union
had been in then they would have fired me, and he said
if the union gets in things are going to be stricter than
hell.
... we got on the subject of I hadn't been working
there too long and Carl Mayors [a fellow employee] and
I had a disagreement about something and we was
having an argument. I was sort of mad, and he was too,
and foreman Baughman asked what it was about. I
started to say something and he told me to shut up. He
said something else and then I started to say something
and he told me that he didn't want to hear no more of
my lip. Mr. Monical said these are the types of things he
wanted to know, because he could help us more with
this than a union can. He said, "Ralph [Gross, the
Hannibal plant manager] wants to help you guys, but
he can't help you as long as this mess with these [union]
guys are going on."
... Mr. Monical said that if the union got in there
wouldn't be no more overtime, and he knew that there
wasn't going to be no more money.
... [And also,] we was talking about job security and
Mr. Monical asked me, did I think I was being treated
fair. I said no, and then he asked me why didn't I quit. I
told him that I didn't want to quit because I had been
there for quite a while and I didn't want to go
someplace else and have to start all over with security.
It seems reasonably clear that the August 12 discussion
between Monical and the three employees involved
questioning by and disclosure to Monical concerning work
problems in the frame of reference of Monical's and
therefore Respondent's "help[ing] us more with this than a
union can . . . `but [not] as long as this mess with these
[union] guys are going on.' " This was rapidly followed by
Monical's remarks "that if the union got in there wouldn't
be no more overtime, and he [Monica]] knew that there
wasn't going to be no more money ... and . . . [if I didn't]
think I was being treated fair ... why didn't I [Lear] quit."
It seems apparent that on the described occasion Monical
was not merely painting a black picture of futility and
economic detriment to the employees if they persisted in
attempting to deal collectively with the Company, but was
also engaged in trying to elicit information from these
employees, in the guise of a "discussion" concerning their
work problems and union organizational desires, aspira-
tions , and activities.22 As such, the incident seems
necessarily to have involved interrogation quite as much as
22 On cross-examination , Lear acknowledged the possibility that he
"might have ... brought the union up. I was telling him [Monica) I why I
wanted the union ." Even assuring this were true, the circumstance that an
employer interrogates and otherwise coerces an employee during such a
"discussion" does not legalize it. Cf. Radiator Specialty Company v.
N.LR.B., 336 F.2d 495,497-98 (C.A. 4); Viking ofMinneapolis, 171 NLRB
No. 7; Joslyn Stainless Steels, 167 NLRB 353, 356; Heick Moving &
Storage, Inc., 150 NLRB 1124, 1130.
23 Although on cross-examination an admission appeared to be elicited
economic threats coupled with allures, directly concerned
with the employees' pending attempts to solve their work
problems and better their working conditions through
protected concerted activities.
Crediting Lear, who, as I have already stated, impressed
me as a truthful witness , and considering Monical 's failure
to testify, I find that on April 12 at Respondent's Hannibal
premises Respondent , through Bruce Monical, engaged in
the described actions, substantially as set forth in the
complaint.
15. August 14
It is further alleged in the complaint (paras. 5Z, AA, BB,
CC, and DD) that on or about August 14 in the Hannibal
plant Monica] interrogated another employee on the
subject of his union affairs, indicated the futility of
unionization at this plant, promised future benefits and
improvements if the employees forsook the Union, and
threatened loss of work opportunities and of jobs in the
event employees exercised collective-bargaining rights
through the Union.
The employee here involved, Respondent's first-shift
rough spray painter James A. (Jim) Porter, testified that on
the occasion in question Monica], whom he knew as his
former plant foreman, called him into the plant office and:
asked me [Porter] how I was doing and I told him
[Monical ] all right. He said something about Mr. Gross
[plant manager] told him something about having
trouble with the union and he said he was sorry to hear
that. He asked me what I thought about the union. I
told him the same thing I told John [Baughman, general
foreman ], if it got in it was all right; if it didn't, it was all
right.
Upon refreshment of his recollection from a pretrial
affidavit, Porter added that Monica] also "asked me
[Porter] if I had attended any of the union meetings. I told
him one ..." Cross-examination elicited that Monical also
asked Porter, " `Jim, what good do you think you'll get out
of a union?' " Monical proceeded to wam Porter that " 'If
the union got in, you would have to pay union dues about
six dollars a week,' and he [Monical] said, 'if they needed
more money for anything you would have to pay more.' I
[Porter] told him ya, and he said that they had a strike
down in Tallapoosa, Georgia [in another Dixisteel plant,
which is unionized ].... He said they had a strike down
there and they wanted more money, and they negotiated.
He said pretty soon, after awhile, they came back to the
same thing that they was after in the first place. He said
something about they went on strike in Winsanta [a
Hannibal tool plant].... They went on strike there and
they moved it out.... The owner moved it down south [is
what Monical said]. . . . [ 23 ] Bruce Monica] told me that
Mr. Gross [Hannibal plant manager ] had said something to
from Porter that he did not receive the "impression " that the Company
"was going to move out of Hannibal," considering the immediately
preceding portion of the cross -examination which quoted such a statement
from Porter's pretrial statement in reference to Gross and not Monical, and
the general level of the witness' mentations as compared with those of alert
cross-examining counsel, it may well be that Porter was confused. In any
event, however, it is settled that the test of the coercive nature of words or
acts does not depend on the subjective reaction of the person at whom
directed. Wausau Steel Corporation v. N.LR.B., 377 F.2d 369, 372 (C.A. 7);
DIXISTEEL BUILDINGS, INC.
him about they was trying to get a union in, and he said that
it kind of hurt his feelings, you know, to think that we
needed a union.... he said something about if the union
did get in that a whole lot of-let me get this straight- he
said if the union did get in a whole lot of old-timers
wouldn't be there. . . . He said something about Harry
Rouse 24 being the ringleader, getting paid by the union, by
the guys who were trying to get the union in.... He said
something about buying us beer. He said that he could do
the same thing." After additional resort to his pretrial
statement , Porter swore that Monical also "told me that we
were getting all this insurance free, that we was getting the
same benefits as Tallopoosa was. He [Monical] also asked
me, he also said that we was getting the same benefits as
Tallopoosa was and that if the union got in, I think I said it,
but I will say it again, if the union got in a lot of them that
was there would be gone." Cross-examination elicited the
following from Porter (after consulting his pretrial state-
ment): "He [Monical] said, `Jim [Porter], what good do you
think you'll get out of a union?' I told him that I was after
more money. He said, `You get the same benefits that they
get down in Tallopoosa, but you are getting it free.' He said,
`You don't have to pay any union dues or pay for any of
your insurance.' He said, `You are getting the same benefits
that they are getting down there.' "
During the course of the foregoing, General Foreman
Baughman entered the office but, observing that Monical
was talking to Porter, "went back out."
Although Porter required extensive recollectual refresh-
ment via his pretrial affidavit to the Board, nevertheless,
considering his observed cerebrational level and the
absence of any contervailing testimony by Monical, on
balance I am satisfied that Porter was testifying truthfully,
and, therefore, I credit his testimony, I find that Monical
did indeed on August 14 engage in the interrogation and
other improper actions described, substantially as set forth
in the complaint.
16. August 15 (Monical)
Also with regard to Monical, it is alleged (Complaint,
paras. 50, P, Q, R, and S) that on or about August 15 he
interr ogated still another employee concerning his and
other employees' desires to be represented by the Union;
gave assurances of work betterments if the employees
withdrew their union support; and threatened that other
employees, as in the case of Harry Rouse,25 would be laid
off or discharged for union activities or in the event of
unionization and that they would lose existing employee
benefits if they chose to act collectively through the Union.
The employee here involved was Respondent's former
first-shift welder Edger Hooper, an impressive witness,
whose uncontradicted testimony establishes that during
work in the plant on that date Monical, whom he
recognized as his former supervisor and foreman and to
Eastern Die Company, 142 NLRB 601, 602 fn 2, enfd., 340 F 2d 607 (C A
1), cert denied 381 U.S 951; Zimnox Coal Company, 140 NLRB 1229,
1234, enfd as modified 336 F 2d 516 (C A. 6), N L R B v Electric Steam
Radiator Corporation, 321 F 2d 733, 736 (C A 6), Local 901, Teamsters v
Compton, 291 F 2d 793, 797 (C A 1), NLRB v Ford, 170 F 2d 735, 738
(C.A. 6) It is most unlikely that in speaking of plant closure and removal
405
whom he showed "how good a weld it was" that he was
producing:
said he [Monica!] was just passing through and was
hearing rumors of the union. He asked me [Hooper]
what I thought about it. Before I got a chance to answer
him he said Harry Rouse was so mixed up with the
union that he was already gone . He said if the union
would get in there would be a bunch of people that
would be laid off, Harry Rouse for sure. He went on, he
said instead of sweeping floors during slack periods of
time , why, we would all be laid off. He said when the
people down in Georgia got their union they had to pay
a lot of extra money the union never told them about
whenever they got in. He said we'll all be laid off
whenever the union got in. He said we'd lose everything
that we had built up if the union got in. He said I didn't
want to lose everything that I built up in the three years
that I was there.
Hooper added that Momcal also:
told me to tell him if they had any changes that could be
made in the building to make the working conditions
better, and he says, "Tell me about it and we will make
the changes for that." [Emphasis supplied.]
Hooper denied that Monical told him anything to the
effect that the Company had not instructed or asked him to
talk to employees or that he was doing this "on his own."
As in the case of the other witnesses who testified
concerning Monical, Respondent did not produce Monical
to dispute this or otherwise to testify.
Crediting the uncontradicted testimony of Hooper, I find
that on the described occasion on August 15 in Respon-
dent's Hannibal plant he was coercively interrogated and
threatened by Respondent 's agent Monical, substantially as
alleged in the indicated portions of the complaint.
17. August 15 (Cunningham)
The complaint (paras. 5EE and FF) alleges that at the
Hannibal plant on or about August 15 Respondent's
Foreman Ed Cunningham interrogated an employee about
how he intended to vote in the upcoming representation
election to be conducted by the Board and implied to the
employee that union representation would be futile and
incur employer retaliation.
The employee in question, Respondent's day-shift
machine operator Robert L. Wade, testified that on the
occasion in question he was working overtime on the
second shift when Cunningham "just asked me [Wade] how
I felt about the union and how I was going to vote, and at
the time I told him [Cunningham ] that I was against it. He
went on and mentioned something about if a place in St.
Louis would go on strike that we would have to go on strike
too, something to that effect." Wade later added that
Cunningham also said "something about he [Cunningham]
couldn't see where a union would do these guys any good.
in the described context Monical was endeavoring to do other than by
citing the example he gave, to suggest that this would or could happen
likewise at the Company's plant if it became unionized.
24 See "Violations of Section 8(a)(3)," infra, "III C I "
25 See "Violations of Section 8(a)(3)," infra, "III C 1 "
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said some of them have it made now and don't realize
it!"
Respondent's Foreman Ed (Samuel) Cunningham cate-
gorically denied that he had ever discussed the Union at
any time with Wade or that he had ever had any
conversation of the nature described by Wade in whole or
in part.
Even allowing for Wade's purportedly flagging recollec-
tive powers requiring assistance from an earlier pretrial
affidavit or statement which he had furnished to a Board
investigator on October 2, I have difficulty in bringing
myself to believe that Wade simply manufactured the
described incident out of the whole cloth, as Respondent's
witness would have it. Upon careful evaluation of
testimonial demeanor as observed, I find that General
Counsel has sustained his burden of establishing the matter
in question, substantially as alleged in the complaint, in
respect, however, only to interrogation and the futility of
Union representation, but not as to any threat of retaliation
in the event of unionization.
18. August 26
Respondent is alleged (Complaint. pars. 6B, C, and D) to
have discharged Terry Coons on August 26 in violation of
the Act. This matter, mentioned here only for chronological
purposes, is considered in detail under Respondent's
alleged violations of Section 8(a)(3), infra, "III C2."
19. August 28 (Gross, re Askew et al.)
The complaint (par 5GG) alleges that again on or about
August 28, at the Hannibal plant, Respondent engaged in
interrogation of employees concerning their union senti-
ments, this time of 5 employees through Plant Manager
Ralph Gross.
Concerning this, General Counsel's witness Askew-as
has been remarked in another connection, a visibly
reluctant and hostile witness to General Counsel-testified
that on the afternoon of the date in question he together
with 4 fellow-employees (Roger Luken, Carl Brown, Jim
Roland, and Wilbert Dusenberry) were summoned or
invited to Plant Manager Gross' office, where "we was
asked [by Gross ] what we knew about the union and what
we thought of it." After his recollection was purportedly
refreshed by a pretrial affidavit which he had furnished to a
Board agent and which Askew admitted he read in its
entirety before he signed it under oath, Askew added that
during the meeting in question in his office Gross also
"asked us about the good points and the bad points of the
union, what we thought, and he also said that if we had any
ideas to let him know. . . . and that he hoped things would
25 On cross-examination, Askew added that Gross had stated on this
occasion that it was "not on account of the union that things are slow."
Gross, however, denied or at least claimed he could not recall anything like
this.
26 On the cross-examination of Askew, counsel for Respondent
elicited from Askew a denial that Gross had told those present at the
foregoing conference in Gross' office that Gross was there to answer their
questions and to provide them with information that might be helpful to
them.
27 It is also noted that , for example , union activists or adherents Rouse,
Graham, Hastings, and Hooper were concededly not invited to attend any
be different . . . that he hoped that things would pick
up." 25
Testifying on the same subject, Respondent's witness
Ralph Gross, the Hannibal plant manager, stated that the
described meeting in his office on August 28 was one of 7
such meetings which he conducted between August 28 and
September 5 (i.e., the Friday before the Board election of
September 9) with groups of employees in his office, by his
invitation, for the first time in the Company's history. The
duration of each meeting, on Company paid worktime, was
30 to 75 minutes. According to Gross, he told the
employees that their attendance was voluntary and that his
purpose was "simply to provide [you] with information or
answer any questions [you ] might have regarding the affairs
of the union which I might be able to give to [you]."26
Gross then (according to his testimony) called on each
employee in turn, the first (i.e., at the described August 28
meeting) being Roland, who indicated it "was not to his
[i.e., Roland's] liking" that the union representative had
stated that the employees would not have their own local.
Further, according to Gross, Roland "talked at length on
many subjects," including "the matter of union dues" and
"relative to the International Shoe Company, which at one
time was located in Hannibal"; also that "the unions had
given Hannibal a hard time, or words to that effect."
Although, according to Gross, the purpose of these
meetings with groups of his employees in his office was for
the employees to ask Gross questions if they wished to,
nevertheless none of the foregoing was a question-"Mr.
Roland didn't ask me a question, he apparently, well, he
began to talk and made statements, not questions"; Roland
simply "began talking" and "the other employees were
listening." It is noted that Roland was not among the union
card signers 27; according to Gross' testimony, in making up
the various groups for these group sessions in his office, he
attempted to compose "a representative group, in my mind,
of the people that we had at the plant," Gross insisting that
"the mix . . . was chosen with no specific thought given to
it," although at that time he had a "pretty good idea" as to
who were "the real union activists." At these meetings in his
office, as explained by Gross, he called upon and gave the
floor to each employee to speak individually in turn. Gross
conceded that he made no statement at these meetings
"that there would be no reprisals on [the Company's] part
for anything they might say," since "I assumed they knew
it." Asked what he told the employees at these meetings,
Gross' reply was, "I did very little talking." 28 Questioned as
to whether he asked the employees anything, Gross' reply
was that other than asking for questions in general he was
unable to "recall any specific question that I ever asked
anybody.... I don't believe I did, I was trying to be very
cautious." However, Gross subsequently testified that
of these conferences . According to Gross, he omitted, to invite them
because he felt that "these gentlemen pretty well had their minds made up.
I didn't feel anything I would say would persuade them . ..." Also
according to his testimony , Gross did not invite any other employee "who I
felt whose mind was fairly well made up ." Gross nevertheless rejected the
notion that "the purpose of the meeting[s] was to try to swing these
employees to vote for the company" at the impending Board election.
28 Gross later denied that he "volunteer[ed ] any information at all, of
any kind, on [my ] own."
DIXISTEEL BUILDINGS, INC.
"They [i.e., the employees] asked questions, I answered
them." 29 Disputing Askew's testimony, Gross denied that
he asked the employees what they knew or thought about
the union or their views concerning the good and the bad
points regarding the Union. On cross-examination, Gross
conceded that he "told [these ] employees that [I ] expect[ed ]
things to get better at Dixisteel"; questioned as to whether
he "asked employees let you [i.e., Gross] know what the
company could do to improve things," Gross replied that,
although he was unable to "recall," "It is conceivable that I
could have."
My assessment of the comparative testimonial demean-
ors of Askew vis-a-vis Gross, here germane to the extent of
resolving such credibility issues as remain when their
testimony is viewed side by side, to a degree reflects my
observations of Askew's hostility to General Counsel, who
seemingly kept him on course only through use of the tight
bridle of his pretrial affidavit, and the ostensibly blurred
and vacillating recollections of Gross. Under the circum-
stances , after close observation and careful weighing, in my
judgment the scales definitely preponderate in favor of
accepting the testimony of Askew. Indeed, the testimony of
a witness who, like Askew, is visibly hostile to the party
calling him (here, General Counsel) and who leans strongly
in favor of the opposite side (here, Respondent), but
nevertheless reluctantly testifies in favor of the party
toward whom he exhibits hostility, may be entitled to
greater weight than otherwise. Crediting Askew, therefore, I
accept his version of what he ascribes to Gross at the
August 28 meeting called by Gross in his office. That
meeting (the first of 7 of the same nature shortly before the
Board election), unique in the history of the Company, held
in the boss' front office, in what is sometimes regarded as
that awesome "locus of final authority in the plant"
(General Shoe Corporation, 97 NLRB 499, 502), under the
circumstances shown was plainly an informationgathenng
device or form of interrogation, if not an invitation to direct
dealing instead of collective bargaining.30 While testifying
that "I [Gross] didn't recall any employee stating to me
how he was going to vote," Gross conceded that at these
meetings , nevertheless, "I do recall employees stating their
position on the matter at hand at that time." Nonetheless,
the precautions spelled out by the Board in Struksnes
Construction Co., Inc., 165 NLRB 1062, 1063, and approved
by the Supreme Court in N. L. R. B. v. Gissel Packing Co.,
395 U.S. 575, 609 (see also, N.L.R.B. v. Historic Smithville
Inn, 414 F.2d 1358, 1362 fn. 10 (C.A. 3), cert. denied 397
U.S. 908,) were not observed by Respondent.
It is accordingly found that, as alleged in the complaint,
on August 28 at its Hannibal plant Respondent through its
Plant Manager Ralph Gross interrogated 5 employees
concerning their union sentiments.
20. August 28 or 29 (Gross, re Sellers et al.)
Another of the 7 meetings held by Plant Manager Gross
29 Gross cited as examples questions concerning the employees'
obligation to join the Union in the event of plant unionization, dues and
assessments , and whether employees had to vote at the Board election
Gross conceded that "I am sure there was [additional questioning by the
employees] . I just don't remember" On cross-examination, Gross
agreed that he indicated to the employees, when some "personal problems
407
with small groups of selected employees in his office
between August 28 and September 5, is referred to in the
complaint (pars. 5HH and II), in this instance alleging
economic threat tied to unionization and economic
allurement coupled with withdrawal from the Union.
General Counsel's witness in this regard was Respon-
dent's first-shift machine operator Alfred P. Sellars, who
testified that, by personal invitation of Plant Manager
Gross, on the morning of August 28 he attended a meeting
in Gross' office with 5 other employees ( Eugene Kinder,
Danny Woodson , Russell Smith , Donald Amburn, and
George Davis). Gross had told Sellars prior to the meeting
that he (Gross) would "try to answer any questions that
[you] had concerning about the union" so as to "help [you]
make up [your] mind." At the meeting, questions were
raised on various subjects, such as union assessments, to
which Gross replied that "to his knowledge they could, that
in Tallapoosa that the union tacked on a 27 dollar
assessment on each employee." Sellars' testimony further
indicates that Gross informed this group of employees that
"probably if a union come in and if work got slack and you
had no work, that you would not be sweeping the floors [as
you are now, when work is slack] and that, because he
didn't think the union would allow it, that you'd probably
be sent home." Gross volunteered "that he couldn't say
what, but he said just be patient and things would look
better in the future . . . before long."
According to Plant Manager Gross, the foregoing group
meeting took place in his office on August 29. He denied
that he or anybody else made any statement about union
assessments. Questioned by Respondent's counsel as to
whether "anything [was] said in that meeting about slack
work," Gross' reply was merely, "I don't recall" in response
to a leading question, however, he added that at "one of the
[7] meetings" the subject of "employees not getting to
sweep floors when there was slack work" was raised; and
that "I [Gross] answered it this way, that if we did not move
men from one job, or from one machine, or from one
occupation to another that our only choice would be that if
there was no work at that station or that operation, or that
machine, to lay them off, that we did not practice that and
hopefully would never practice that." According to his
testimony, however, Gross apparently added that the
Company might have to do this "in accordance with the
terms of any agreement that was negotiated [by the Union ]
with the company," while conceding at the trial that he had
no reason "whatsoever" to "believe that the agreement
might so provide." At another point, on cross-examination,
Gross conceded that in a pretrial affidavit or statement he
had declared that when an employee asked the Company's
position he (Gross) had said, "What is the alternative, when
a man's job runs off, what does he do? A man's job runs
out, he goes home, that's all." Gross conceded that "at that
time it was not normal practice for men to be sent home
when the job on which they were assigned ran out." He
further conceded telling one or more of these employee
came up," that he "didn' t want to discuss" them.
30 Cf. Tom Wood Pontiac, Inc, 179 NLRB No. 98 In the aspect of
Gross' calling on each employee to talk in turn, there also comes to mind
the scene depicted in The Coachman's Inn, 147 NLRB 278, 285-86, enfd
357 F 2d 134, 136 (C A. 8)
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
groups in his office that he "expected things to get better at
Dixisteel," but that "[my] hands [are] tied as long as the
union matter [is ] going on."
Sellars impressed me as a truthful witness. Coupling his
described account of the meeting, which I credit, with
Gross' admissions and recollective lapses , I find that, in
effect as alleged in the complaint, on August 28 or 29
Respondent through Plant Manager Ralph Gross, at its
Hannibal plant, indicated to employees the probability of
reduced employment opportunities in the event of plant
unionization and also the likelihood of plant improvements
and betterments when his "hands" were no longer "tied as
long as the union matter [is ] going on."
21. September 2
The complaint (para. 5MM) alleges that again on or
about September 2 an employee was interrogated at the
Hannibal plant, this time by Respondent's Foreman
Kenneth (Kenny) Kendall, concerning how the employee
intended to vote in the union representation election
scheduled to be conducted by the Board the following
week.
The employee involved in this episode was Respondent's
first-shift machine operator Robert L. Wade, who testified
that on the occasion in question, in the production area of
the plant, Kenneth Kendall, his immediate Foreman,
"ask[ed] me [Wade] how I felt about the union . . . and
said it didn't matter to him [Kendall] either way how it
went. I told him how I felt, that I didn't know whether I was
for or against it at that time."
Without explanation, Kendall was not produced by
Respondent to testify regarding this episode, which also
was in no other way controverted. Crediting Wade's
account as described, I find that Kendall interrogated
Wade in the plant on or about September 2 concerning
Wade's union sentiments.
22. September 5
Once again, on or about September 5, according to the
complaint (paras. 5JJ and KK), employees were interrogat-
ed in the plant by Plant Manager Ralph Gross concerning
their union affairs, were given assurances of economic
betterments for disassociating themselves from the Union,
and were threatened with the reduction of work opportuni-
ties and with layoffs in the event of unionization.
Respondent's dayshift automatic welder helper Robert
W. Wienhoff testified that on the date in question he was
asked by Plant Manager Gross to come to his office for a
meeting that afternoon. Present in Gross' office, in addition
to Gross and Wienhoff, were employees Robert Wade,
Enoch (Eric) Nichols, and Sam Keller. As testified by
Wienhoff:
[Plant Manager Gross] said he was glad that we'd all
been able to come, that he wanted to know what the
31 At the trial Wienhoff exhibited an accurate understanding of the
accepted and usual meaning of "seniority." Concerning the system of
"seniority" then existing at the Hannibal plant , Wienhoff testified that
Plant Manager Gross "had his list there of the jobs that had been bid over
two or three years, and he [Gross I said of all those jobs that had been bid
only four or five of them went because of other than seniority . Otherwise,
on a job if a man bid on seniority but they did not believe he had that
problem was, and we got around to the union.. . . He
came out and said he could not tell us how to vote but
that he knew we'd know how he felt on the matter... .
We went on and he asked what some of the problems
were. Bob Wade came up and said the biggest problem
that we had out there was the wages, and we talked
about wages. Mr. Gross said that he didn't expect Bob
Wienhoff to come in and work starting off at $1.90 and
expect to stay at that wage forever. Otherwise, he would
just consider Bob Wienhoff stupid. He didn't consider
Bob Wienhoff to be stupid, he expected one to better
himself.
He went on and said that he realized that some of the
jobs were underpaid out there, and he had seen
discrepancies out there that could be changed but he
could not make the changes until after these union
negotiations and stuff were in process, that his hands
were tied, that he couldn't make changes in the plant
itself. I brought up the subject, `Well, you say wages are
going to get better. Could you give us any reasonable
time limit on that, three months, six months, a year, five
years?' He answer was, 'I can tell you it won't be five
years.'
We went on to talk about the question of seniority,
and from what I gathered seniority would strictly be the
rule if the union got in. [Gross said that,]... [m]aybe
not in those exact words but it was that seniority would
rule if the union got in.... It was brought up on this
seniority deal that if I had this job and when the slack
season came along he wouldn't be able to change us
around, transfer us around through the plant like he had
done. Seniority would be the rule and the oldest man
would stay and the youngest man would have to go
home. I asked that questions several times. ; Mr. Gross
said, it was brought up in the meeting, he said if the
union got in seniority would be the ruling factor, and
during the slack season there would be no work, the
youngest man there would go, he couldn't put him
sweeping the floors.31
s * s
Outside of wages and seniority, those were the
biggest points of conversation in his office. I know it
lasted quite a while. We went over and over most of
these subjects. We couldn't get a straight answer from
Mr. Gross. I realize he said his hands were tied, he
couldn't make promises, he couldn't make a statement.
Wienhoff's account of this meeting was in part corrobo-
rated by Respondent's first-shift machine operator Robert
L. Wade, whose recollection, however, was not as detailed.
According to Wade, Plant Manager Gross told the
employees that he:
just wanted to know what our main gripes were and why
the guys were not satisfied with the way things were
running now, and he wanted to know how we felt about
capability and the man they knew had the capability, he got the job." Also
according to Wienhoff, at this time Respondent followed the practice of
detailing employees to other jobs, rather than furloughing them, if there
was insufficient work of the nature normally performed by the men.
Wienhoff testified that Gross indicated that in such a situation, if the
Union came in the junior employee(s) "would be let off to go home."
DIXISTEEL BUILDINGS, INC. 409
the union . . . [and] he would like to know if there was
anything he could do to help with matters. . . . He
asked us if we knew of any problems that we thought he
could solve, and we started then telling him just exactly
how we felt the union got started in the first place... .
[Gross] said if [work was slow and a ] union was to get in
that a machine operator or any other operator couldn't
be pushing a broom. He could send them home if they
ran out of work rather than transfer them like he does
now 32
Cross-examination of Wade by Respondent elicited that
the foregoing relative to temporary transfers was stated
after "Gross said you had never had a layoff, he [Gross]
wasn't looking to see one." Wade also recalled that Gross
"did say the conditions would be changed but he [Gross]
couldn't make a specific date or promise anything, but he
said that things would be better than they are now." After
considerable jogging of his memory by a pretrial affidavit
or statement which he had furnished to a Board agent,
Wade amplified this by stating:
I [Wade] told him [Gross] that the guys were satisfied
with a dime raise every six months, so he gave us an
answer to that. He said he couldn't guarantee more
wages right now at this time because right now his
hands were tied, he couldn't do anything because the
union was trying to get in . He was not allowed to do
anything, make promises or anything. So Enic Nichols
asked him why a guy helping him should make as much
as Enic makes , and Mr. Gross agreed that this was not
right because there should be only one operator on a
machine. Something was mentioned about the help
being underpaid. He agreed to that, but he still said that
he couldn't guarantee higher wages at this time. He
stressed this again, that his hands were tied, he couldn't
do anything.
I told Mr. Gross that I thought the hospitalization
benefits could be improved. I don't recall him giving me
an answer to that.
It may be seen from the foregoing that, as thus described,
these private conferences in Gross' office resembled
rudimentary bargaining sessions.
The foregoing meeting in Gross' office, on the Company's
paid worktime, lasted about an hour and a half according
to Wienhoff and was unprecedented.
Respondent's Plant Manager Gross' version of the
foregoing was, in essence , that it was like his other
preelection meetings with other employee groups (two of
which have already been described); that (in response to a
question relating to overtime) he explained that employee
Wade rather than senior employee Sellers had been
assigned overtime because Foreman Cunningham knew
Sellers was going bowling on the company team; and that
he replied to other questions which were raised. Conceding
32 Cross-examination of Wade disclosed an area of uncertainty on the
part of Wade as to Gross' precise words or manner or context of expressing
this . However, during cross-examination Wade testified that Gross did not
ask him how he felt about the union but that Wade told this to Gross.
Wade ascribed inability to recall details to the lapse of time , during which
they had "slipped my mind." Attempts by counsel for General Counsel to
refresh Wade's recollection with the assistance of a pretrial affidavit or
statement furnished by Wade to a Board agent, demonstrated that
information which he had supplied to the Board agent had indeed either
"slipped [ the] mind" of , Wade or that he was pretending that they had.
that he "told Mr. Wienhoff that we had never had a layoff
at Dixisteel, and hopefully never would have one," Gross
denied that he indicated that in the event of unionization
employees would no longer be shifted to other jobs but
would be laid off in case of lack of their specific kind of
work. However, Gross admitted that this subject was
discussed, but that his (Gross') position was that "it was
entirely dependent on what sort of contract would be
negotiated between the company and the union, that I had
no way of forecasting what procedure would be used in
layoffs or cutbacks." Gross flatly denied that he asked these
employees "what their problems were, or what problems
they had"; "what their gripes were ," "how they felt about
the union," or "how the union got started"; and he also
flatly denied that Wade or any of the others at this meeting
"volunteer[ed ] any information . . . with regard to how he
felt about the union." Gross swore that he was unable "at
this specific time . . . [to] recall" whether he told these
employees that some jobs were "underpaid at Dixisteel" (as
testifies by Wienhoff, but he conceded that he did make
"that statement" at some time and place. Gross conceded
that he did tell these employees that "Dixisteel was a
growing company, we expected things to be better in the
future because we expected more sales, more markets, that
we would expand, and a statement to that effect"; and he
conceded that he also told these employees that his "hands
were tied, or that Dixisteel's hands were tied while the
union efforts were going on, or while the campaign or
organization was going on."
In the described essentially sharply conflicting state of
the record, I have given the weight which in my judgment is
deserved by my strongly favorable impression of Wien-
hoff's testimony demeanor, the partial corroboration
thereof by Wade (particularly after refreshment of his
recollection by his substantially more contemporaneous
pretrial statement to the Board agent), and the to a degree
equivocating testimony of Gross. After carefully weighing
these factors in relation to the described testimony, within
the frame of reference of the record as a whole, I credit
Wienhoff's testimony and find that a fair preponderance of
substantial credible evidence establishes that on or about
September 5 in Respondent's Hannibal plant its Plant
Manager Ralph Gross interrogated employees concerning
their union sympathies and affairs, indicated reduction of
employment opportunities in the event of plant unioniza-
tion, and conveyed assurances or prospects of economic
betterments in the event of nonunionization and cessation
of organizational activity , in essence as alleged in the
complaint.
23. September 8
The complaint (para. 5LL) alleges that on or about
While conceding that his memory was fresher when he supplied the
information in statement form to the Board agent, even after reading it,
Wade claimed at the trial that "it is still foggy in my mind ," although
"apparently I did think it was the truth then" and "wouldn 't have told it to
[the Board agent I if I didn 't. For this reason, and because I am uncertain
whether Wade really suffered a partial recollective failure or whether he
was for some reason merely dissembling, I do not place primary reliance
on his testimony even to the extent it is corroborative of that of Wienhoff.
I do, however, rely on the testimony of Wienhoffs who testified with
candor and what impressed me as honesty and truthfulness.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 8-the day before the Board-conducted union
representation election-Respondent's Plant Manager
Gross in a speech to assembled employees in the Hannibal
plant on company-paid worktime indicated that the
employees' choice of collective representation through the
Union would not only be futile but might result in
diminution of wages and loss of existing employee benefits.
The text of the speech in question is stipulated ( G. C.
EXH. 7 ), as are the fact and physical circumstances of its
delivery as described above.
As in the case of Gross' previous speeches to assembled
employees, there is much in the text of this speech that is
unexceptionable. However, this "eleventh hour" preelec-
tion speech by Gross must be viewed in the perspective of
the total stream of events which preceded it-namely, a
rather full course of assorted unfair labor practices
designed to stem the tide of the exercise by the employees
of their statutory right to deal collectively with Respondent.
In his preelection speech, Gross chose to lay unmistake-
ably heavy emphasis on the fact that a union victory in the
upcoming election would mean nothing tangible to the
employees since it would mean "only the right to begin
talking that's all"; that "Nothing is automatic"; and that
"The Company does not have to agree to anything." He
therefore chose to caution the employees about what he
characterized as "the union['s] last minute trick [regarding
a `proposed contract'] of making ridiculous promises to
fool you." At the same time he saw fit to emphasize to the
employees preparing to vote, that:
We can as the law says bargain hard . . . negotiations
can go on a long time . I have known negotiations to last
for as long as a year. This is a fact you should know.
Also during negotiations all wages and fringe benefits
are frozen at the present level, and talks begin as to
where they will be after the negotiations. The Company
has as much right to ask for lower wages and less fringe
benefits as the Union has to ask for an increase.
Gross added:
Unfortunately, negotiations can mean strikes. In fact
the Sheet Metal Workers in Kansas City just finished a
90 day strike and I have known strikes to last as long as
three years.
He concluded with the warning:
I just want you to consider facts and not promises. I
think if you consider all the facts you'll vote for the
Company and not the Union, and its false promises.
It was either substantially false and misleading or a
serious threat for Gross to state to the assembled employees
that "during negotiations all wages and fringe benefits are
frozen at the present level." If Gross meant only to say that
during collective bargaining an employer is not at liberty to
raise wages and increase fringe benefits unilaterally, he
should have said so, instead of sending the message to the
employees on the verge of voting that if they exercised their
right to bargain collectively the results would be that their
pay and benefits would be "frozen at the present level"
during what he pictured as an extremely protracted period
of "negotiations ." He chose himself to label his remarks not
as a "prediction" but as "a fact you should know," and
upon the basis thereof to sound the warning to the
employees that "if you consider all the facts you'll vote for
the Company." It was also highly misleading for Gross to
state to these employees readying themselves to vote that
any collective negotiations regarding "wages and fringe
benefits" would be concerned with "where they will be after
the negotiations" (emphasis added), since, as is well known
to person versed in industrial relations and collective
bargaining-unlike the factory hands at whom these
election-eve misrepresentations were beamed-it is not
unusual for collective agreements to provide for wage
increases and other betterments retroactively , such as to the
date of recognition , certification , or commencement of
collective bargaining . Where an employer takes it on
himself to instruct and advise his employees as to the law,
he is held to at least a reasonable standard of accuracy; he
may substantially misinform and misadvise only at his
peril. To couple the described substantantial misrepresenta-
tions, as they were here, with dire references to indefinitely
protracted negotiations and lengthy strikes ("as long as
three years"), and even the prospect of wage and fringe
benefit rollbacks as "facts" which the employees should
consider in deciding to "vote for the Company and not the
Union," was in practical effect-considering the factory
hands at whom these remarks were forcefully directed with
the obvious intent that they be taken seriously-to engage
in a crude form of coercion and restraint of their statutorily
guaranteed right of freedom to bargain collectively. By
having presented to them by their Plant Manager on Board
election eve , following months of unremitting unfair labor
practices , a picture of protracted collective bargaining
involving the prospect of lengthy strikes , during all of which
their incomes would be "frozen" and after which (even if
"successful") any raises would apply only in the future, was
in effect to present to the employees as "facts" (to borrow
Respondent's own repeated expression ) a picture of futility
as well as substantial economic loss. In the total frame of
reference here presented, such threats are outside of the
protection of Section 8(c) of the Act and constitute
interference with and restraint and coercion of employees'
statutorily secured rights under the Act. N.LR.B. v. Gissel
Packing Co., 395 U.S. 575, 618-20; Amalgamated Clothing
Workers of America v. N.LR.B. [Winfield Manufacturing
Co., Inc.], 424 F.2d 818, (C.A.D.C.); Georgia-Packing Corp.,
181 NLRB No. 53; Unitec Industries, 180 NLRB No. 4;
Viking of Minneapolis, Division of Telex Corporation, 171
NLRB No. 7.
It is accordingly found that the allegations of the
complaint (para. 5LL) relative to Gross' preelection speech
of September 8 have been sustained.
24. September 9 (Gross)
The complaint (para. 500) further alleges that in the plant
on or about September 9, Plant Manager Gross interrogat-
ed an employee about his wearing of a union button.
Respondent 's first-shift machine operator Alfred P.
Sellars testified that on the afternoon of September 9, he
(like other employees) was wearing a union button with
"Vote" on it. Plant Manager Gross approached Sellars at
his machine and asked him "what it meant." Sellars replied
that "it meant exactly what it said." Gross, who was serious
and "had a shocked look on his face . . . stood there
approximately a minute and walked off ." Before this
DIXISTEEL BUILDINGS, INC.
happened, Sellars had observed Gross to walk over to
employees Wade and Luken , who were also wearing union
buttons . After Gross spoke to Luken , Luken removed the
button . However , there was no testimony-through Sellars,
Wade , Luken , or otherwise-as to what if anything Gross
said to cause Luken to remove his button . There is no
contention that the wearing of union buttons in any way
disrupted or interfered with production or any factory work
or was for any other reason improper.
On direct examination , Plant Manager Gross conceded
the accuracy of Sellars' account of the foregoing episode.
I can perceive nothing unlawful about Gross ' actions in
the specified regard . In view of the nature of the described
incident and the absence of proof from which it may be
inferred that it was of a coercive character , I find that it has
not been established , as alleged in the complaint, that in the
Hannibal plant on September 9 Respondent 's Plant
Manager Ralph Gross interrogated an employee in
violation of law concerning his wearing of a union button.
25. September 9 (Kendall)
The complaint (para . 5NN) additionally alleges that, also
411
in the plant on September 9, another employee was
interrogated concerning his wearing of a union button, this
time by Respondent 's Foreman Kenny Kendall.
Testimony of the employee in question, Respondent's
loader Charles Harold Lear , establishes that on the
afternoon of September 9 he was wearing a union button as
were other employees . Observing Lear to be wearing the
button , Foreman Kendall remarked to Lear on the loading
dock, "You don 't have your name on yours."
Kendall did not testify.
I find that it has not been established that, as alleged, on
or about September 9 Respondent's Foreman Kenny
Kendall interrogated Lear or any other employee concern-
ing the wearing of a umon button.
26. Statistical recapitulation of "independent"
8(a)(1) violations found
Table I is a recapitulation of findings here made
concerning Respondent 's "independent" violations of
Section 8(a)(I) of the Act.
Table I
Respondent ' s "Independent " Violations of Section 8(a)(1)
Complaint Par(s) Decision Sec. 1969 or Approx.Date Substance 33/ Finding(s) 33/
5B IIIB1 3 --28 F F: Found
5C A A: Found
T T: Found
5A IIIB2 3--29 S Not Found
5D IIIB3 5 --21 A A• Found
T T: Found
5E IIIB4 6 -- 16 I Found
5F IIIB4 6--26 F F: Found
T T: Found
5H IIIB6 7 -- 1 I Found
5J IIIB8 7 --3 I Found
51 IIIB9 7 --5 I Found
5T IIIB11 8--11 I Found
5K IIIB12 8--11 F Not Found
5L IIIB13 8--11
5M I I: Found
5N T T: Found in part
5U IIIB14 8--12
5V I I: Found
5W A A: Found
5X F F: Found
5y T T: Found
5Z IIIB15 8--14
5AA I I: Found
5BB A A: Found
5CC F F: Found
5DD T T: Found
50 IIIB16 8--15
5P
5Q I I: Found
5R A A: Found
5S T T: Found
1 Footnote 33
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Complaint Par(s ) Decision Sec. 1969 or Approx. Date Substance 33/ Finding(s) 33/
5EE
5FF
IIIB17 8--15 I
F
T
I: Found
F: Found
T: Not found
5GG IIIB19 8--28 I Found
5HH
511
IIIB20 8--29 T
A
T: Found
A: Found
5MM IIIB21 9--2 I Found
5JJ
5KK
IIIB22 9-5 I
A
T
I: Found
A: Found
T: Found
5LL IIIB23 9--8 F
T
F: Found
T: Found
500 IlIB24 9--9 I Not found
5NN IIIB25 9--9 I Not found
Summary
Total "Independent" Sec. 8 (a)(1) Violations Found : 36 Within "critical period" 34/: 27
Not within "critical period" 34/: 9
Total Separate Incidents Involved: 18 Within "critical period: 34/: 13
Not within "critical period" 34/: 5
C. 8(a)(3) Violations
The complaint alleges two violations by Respondent of
Section 8(a)(3) of the Act. These involve its employee Harry
Rouse and its former employee Terry Coons and will be
separately considered.
1. Harry Rouse
It is alleged ( Complaint, paras. 6A and D) that on or
about August 7 Respondent laid off its employee Harry
Rouse because of his union or protected concerted activity.
The proof establishes that Harry Rouse has been in
Respondent's employ at its Hannibal plant for about 3
years as a first-shift welder. There is no suggestion that the
quality of his work has at any time been unsatisfactory.
It is clear that Rouse was an employee spearhead and
indeed probably the consistent prime mover of union
organizational attempts at Respondent's Hannibal plant.
This involved organizational activity by Rouse in connec-
tion with no less than three different unions-the
Ironworkers, the Steelworkers, and finally Sheet Metal
Workers, the last named being the Charging Party herein.
Thus, it was Rouse who obtained Ironworkers union cards
and solicited fellow employees at the Hannibal plant to
execute them. This was around the end of 1968 or
beginning of 1969. When this attempt to organize the
Hannibal employees under the Ironworkers failed, in
(according to Rouse) "the early part of `69 . . . I contacted
the Steel Workers to organize a union in the plant. I went to
a friend of mine in Hannibal, he give me the name of the
33 A: allurement or promise of employment betterment for repudiation
of union or cessation of collective activity
F: threat or warning of futility of union representation or collective
activity
1: interrogation
S: surveillance
Steel Worker agent there at Hannibal. I got cards from him,
took them out to work and passed them out at break time
and before going to work and at lunch hour. I think it was
either 10 or 11 cards I received back." Rouse also met with
the Steelworkers St. Louis representative and attended
organizational meetings between the employees and
Steelworkers. Rouse's attempt to organize the plant through
Steelworkers commenced in early March. However, this
organizational attempt also, like Rouse's earlier venture
through Ironworkers, proved abortive, and Rouse de-
stroyed the union cards he had solicited. Thereafter, in
early May, contact was established between the Sheet
Metal Workers, Charging Party herein, and Rouse, in still
another attempt to organize the Hannibal plant workers for
collective bargaining. Rouse informed the Sheet Metal
Workers representative, Paul F. Stuckenschneider, of the
unsuccessful previous attempts to organize through Iron-
workers and Steelworkers. After signing his own card to
join Sheet Metal Workers, on May 5, Rouse actively
solicited other employees to join, obtaining a substantial
number of signed union cards and turning them in to that
Union. Rouse also attended Sheet Metal Workers organiza-
tional meetings, distributed its literature in the plant, and
(during the period of his suspension, to be described)
passed out its handbills outside of the plant. He was a
member of the Union's contract committee and attended 4
of its meetings; the purpose of this committee was (in
Rouse's words) "to get ideas from some of the employees to
draw up a contract which to present to the company for
negotiations." He not only spoke to "about all" of the
dayshift employees, but also some of the nightshift
employees. No employee was more active than he in
soliciting and obtaining union members. Further, as
T: threat or warning of economic detriment in event of unionization or
continued collective activity (Note: : some threats , here referred to in the
singular , were multiple.)
34 "Critical period" refers to time between date of collective bargaining
demand (July 3) and date of Board-conducted collective representation
election (September 9).
DIXISTEEL BUILDINGS, INC.
credited Testimony of Union Representative Stucken-
schneider establishing some
... employees [solicited directly by the Union] .. .
would not make any kind of a move until they talked to
Harry Rouse. . . . from the very beginning Harry
[Rouse] was our chief in-plant organizer. Harry secured
many of the authorization cards that were signed inside
the plant, or elsewhere. He turned cards in to us
continuously. Harry would pass the word around for
meetings. Harry would line up a few committee people
with whom we maintained contact with throughout the
campaign. In fact, Harry would contact the people.
Harry contacted most of the people that we had on the
committee [with Rouse], the activity committee that we
had throughout our organizational campaign.
Corroborating Stuckenschneider, Union Representative
Todd credibly and without contradiction characterized
Rouse as "our No. 1 supporter in the election campaign at
Dixisteel. Rouse was always first and foremost in helping us
in our unionizing activities"; and that ". . . without any
question in my [Todd's] mind," Rouse was "the employee
.. . in the plant who was the most active of all the
employees with regard to the organizational campaign of
the Sheet Metal Workers Union." Todd summed up
Rouse's specific union organizational activities to include,
in addition to religious attendance at union organizational
35 The testimony is as follows
Q [by counsel for General Counsel ] When did you first hear that
Mr Rouse was the spearhead behind the Steelworkers'?
A [by Gross ] I can't recall a specific date
Q Still about in May?
A I knew before that
Q You knew before May that he was the spearhead behind the
Steelworkers?
A. I am sorry, I misunderstood you , I thought you said
Steelworkers
Q I am sorry, Sheet Metal Workers
A I would say it was during the month of May that I learned of
Harry's interest in it, again, that was no secret
Q Now, back again to the Steelworkers, now, to clear up any
confusion, when did you hear that he had been the spearhead behind
the Steelworkers'?
A Not until after that, whole transactions had taken place and it
was a matter of history I discovered that, as a matter of fact, my first
actual knowledge of it was after the Sheet Metal Workers had come to
town
Q You indicated that after the Sheet Metal Workers
came to town, you found out that Harry Rouse was involved with the
Steelworkers and found out that he was involved with the Sheet Metal
Workers, is that correct?
A Yes
Q And you were, I believe you told [NLRB agent] Mrs. Smith,
you were kept informed of the meetings and what was said, is that
correct'?
A Pretty much, their handbills kept me fairly aware of what was
said
f ! t ♦ t
Q. Who kept you informed of what was going on at the meetings'?
A . one morning I came in, this happened on two different
occasions, I came in my office and on my desk there was a note, and
to this day I don't know who wrote the note, to the effect that a
meeting had taken place
Q Anonymous notes were left on your desk?
A Yes, sir
Q And you don't know who wrote them'?
A No, sir, and I didn't inquire I also had verbal reports from the
foremen
Q Was the foreman reporting to you who was giving out this
413
meetings: placing or distributing union literature in the
plant; reporting daily, on his way out of the plant, at the
main gate in plain view of the plant offices, to union
representatives on that day's organizational activities
among employees in the plant; attending group organiza-
tional meetings at the union representatives' motel;
supplying names and addresses of employees, with travel
directions, to union representatives; accompanying a union
representative on some house calls; attending the NLRB
hearing in St. Louis on August 6; collecting and handing in
union authorization cards to union representatives; receiv-
ing additional supplies of union authorization cards from
union representatives; turning in to the Union more signed
union authorization cards than any other employee;
membership on and attending meetings of the employees'
in-plant union organizational committee; and membership
on and participating in activities of the union contract
committee. It is apparent that these manifold organization-
al activities on Rouse's part could not have escaped
Respondent's eyes and ears.
There is no question that Respondent was well aware of
Rouse's preeminent role in the organizational activities
involving Steelworkers as well as the Charging Party here
(Sheet Metal Workers): Hannibal Plant Manager Gross
admits it.35 Indeed, at one point during direct examination,
asked whether he was "aware of Mr. Rouse's participation
information'?
A No, sir I don't know to this day who wrote those notes
Q. But in the notes or from your foremen or whatever, it did get
back that Harry Rouse was the spearhead and Harry Rouse was doing
the talking at the meetings, isn't that correct9
A Yes On one occasion it was reported to me by a foreman that
Rouse had handed out cards in the shop It would not have been a
report except for the fact this was a marginal thing of whether or not it
was or not a work time, and because of the fact it was a marginal
thing, I chose to dismiss the comment and nothing was done about it,
but that was reported to me
Also it was reported to you that Mr Rouse had said certain things
and what he said was reported, isn't that true?
MR. BACHELLER [Counsel for Respondent ] I want to object to the
question as being too vague
MR. BROOKS [Counsel for General Counsel]. I dont think it is
vague at all
TRIAL EXAMINER Overruled
Q. (By Mr Brooks) Would you please answer the question'?
A Repeat it, please
Q Isn't it true that things were reported to you of what Mr
Rouse had said regarding the union'?
A I can answer that question no Things had been reported to me
of things that Mr Rouse had said, specifically I can give you an
instance of one that I can recall.
Q Now, just answer my question Wasn't it reported to you that
Mr Rouse had been talking about the union and wasn't it reported to
you what he had said about the union?
A What he had said about the union'?
Q Specifically, Mr Gross, when you talked to [NLRB agent]
Mrs Smith of our office, didn't you tell her that it had been reported
back to you that Mr Rouse had been talking about the union and it
had been reported back to you what he had said9
A That could have happened, yes
Q. Isn't that true'? I presume it was true. Didn't you tell Mrs
Smith than
A If I told Mrs. Smith that as a fact, then I would have to say it
is a fact I don't at this point recall it. To answer your question or to
elaborate further on it, Mr Brooks, it happens that between 11 30 and
12 o'clock the men in the plant have their lunch in an area that is
designated for that, which there are lunch tables all set aside, several
of the foremen eat at the same time and the discussion of the union
was never, to my knowledge, a matter of a secret at that time and it
(Continued)
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the union ," Gross' reply was, "Yes, sir, very much
aware."
On February 10, Rouse was involved in an industrial
accident resulting in a significant injury to his coccyx36 and
17 consecutive days' loss of work and causing him
substantial continuing residual pain.37 This matter is
mentioned because it is central to Rouse's later suspension,
to be described, here under consideration. Although Rouse
was permitted by his physician to return to work on
February 27 with a restriction against heavy lifting, he was
not then nor later medically discharged but has continued
to have medical problems resulting from that injury, among
them what he described as a burning and stinging sensation
around the traumatized area. A month or two after his
return to work-i.e., around the beginning of April or
May-during work Rouse sustained a second injury to the
same area. Since then pain, at times apparently intense, and
other disagreeable sensations ascribed to the twice-trauma-
tized area have interfered with his work, particularly on
heavy lifting and pushing; involving, as he describes it, his
"legs . . . jumping." For these conditions he has sought
medical assistance not only in Hannibal but also in St.
Louis and has been advised to undergo surgery. He has
been medically instructed, among other things, to seek
comfort by seating himself on straight-backed chairs on an
orthopedic device referred to as a "donut," which he carries
around with him and which he was observed to utilize at the
trial herein.
Respondent's Plant Manager Gross' testimony indicates
a high degree of awareness of Rouse's condition, as does
the testimony of other Hannibal factory personnel,
including, for example, first-shift welder Porter who works
"right alongside of" Rouse and who testified that since
Rouse's return to the factory following his accident he has
observed Rouse to be limping and having "a lot of pain" so
that it was interfering with Rouse's work: "He [Rouse] tried
to work, but I think his hip was giving so much pain he had
to go home lots of times . He couldn't hardly sit down,
couldn't hardly walk."
Pursuant to notice dated July 22 from the Board's 14th
Regional Director, a hearing was scheduled to be held in
Representation Case 14-RC-6230 in St. Louis on August 6.
On the day before the hearing (August 5), Union
Representative Stuckenschneider requested Respondent's
Hannibal Plant Manager Gross to excuse Harry Rouse
(dayshift) and Monte Graham (nightshift) from work on
August 6 for the purpose of attending that hearing
since-as testified by Stuckenschneider-"we wanted some
employees to attend this hearing who were knowledgeable
about the bargaining unit and who had a pretty good idea
what was going on there and in there. People we could rely
on to possibly give testimony in the hearing if it were
necessary. So we decided on Harry Rouse and Monte
was discussed openly.
Q. And it wasn't a secret how intricately involved Mr. Rouse
was?
A. Not to my knowledge it wasn' t a secret."
36 The coccyx is a triangular bone formed by fusion of the last few
vertebrae constituting the terminal portion of the base of the bony
segments of the spine , considered by some to be a vestigial tail, and is
sometimes referred to as the "tailbone." American Pocket Medical
Dictionary 84 (19th ed .); Lewin, The Back and Its Disk Syndromes ch. 37,
Graham." There ensued a discussion among Stucken-
schneider, Gross, and Company counsel Lowry, wherein,
according to Stuckenschneider, Gross indicated willingness
to excuse Graham but not Rouse because of the alleged
welding workload. Company counsel pointed out that if a
subpoena were served , Rouse would have to be excused.
When Gross indicated he wanted Rouse to work an 8-hour
day, possibly on the second (night) instead of the first (day)
shift, Stuckenschneider remonstrated that Rouse could not
start the day at 6 a.m., travel to St. Louis, attend the hearing
there that day, travel back to Hannibal (in all, a round trip
driving distance of about 240 miles), then work until I a.m.,
and report to work the following morning at 6 a.m.
According to Stuckenschneider, Rouse thereupon said,
"Well, I will come in and do what I can do"; and Gross
then remarked, "Well, we will work it out, go ahead. We'll
work it out, just so you put in the hours," and he (Gross)
confirmed that Rouse and Graham "are excused."
The testimony of Rouse substantially corroborates
Stuckenschneider's foregoing account of the circumstances
of his being "excused" from work to attend the Board
hearing on August 6. According to Rouse, when Plant
Manager Gross indicated he "would have to make up the
day that I [Rouse] missed":
I [Rouse] said that I didn't know whether I would be
able to work a full shift, because I would have to leave
Hannibal at 6 of a morning to get down there by 9
o'clock and coming back and working from 3:30 until 1
o'clock, and then getting back up again at 5 would make
it too hard on me, I wouldn't have much sleep, but I told
them that I would put in as much time as I could, which
at that time I was planning on working as late as I could
that night. There was some discussion about . . . me
putting in the full nine hours. And finally, to my
understanding with Mr. Gross and Paul
[Stuckenschneider] and myself that I would put in as
much time as possible.... Paul told Mr. Gross, "I
don't see how he could be expected to work until 1
o'clock and turn around and come back in at 6," and
Paul stated, says, "How about letting him come back in
and put in as much time as he can that night where he
can get some sleep, and come back in the next morning
at 6," and to my understanding, Mr. Gross said, "Yes."
... He [Gross ] was shaking his head . . . up and down.
According to Rouse, during this discussion Stucken-
schneider had also reminded Plant Manager Gross about:
... the trouble that I [Rouse] was having with my
tailbone at that time that he don' t see how anyone could
be expected to put in that length of time of being up at 6
o'clock of a morning until 1, and then coming back in
again at 6 the next morning, because my tailbone has
been bothering me quite a bit.
Rouse conceded (as had Stuckenschneider) that Gross at
"The Coccyx," pp. 555 et seq. (2d rev. ed. 1957). Rouse testified that his
physician referred to his injury as a "cracked ... tailbone."
37 According to Rouse, while attempting to lift a 100 pound steel beam
from a machine, it moved and propelled him against the comer of a table
which he struck with his "tailbone."
"Traumatized coccyxes may produce continuing acute discomfort with
lingering intense pain not limited to the coccyx but radiating to
neighboring structures, an affliction known as coccygodynia, aggravated by
continuing sitting and accentuated by rising." Lewin , op. cit. supra.
DIXISTEEL BUILDINGS, INC.
first expressed reluctance to excuse him since there was
need for welding work to be done, but Rouse also insisted
that, when he was finally "excused," the understanding was
that upon his return from the St. Louis NLRB hearing he
would report to the plant to make up as much time as he
could.
Plant Manager Gross' version (in essence supported by
Company counsel Michael L. Lowry) of the foregoing is
consistent with that of Stuckenschneider and Rouse up to
the point of what the "understanding" was under which
Rouse was "excused." According to Gross, the "agreement
with Mr. Rouse was that [upon his return to Hannibal from
the St. Louis hearing ] he would work until midnight but not
to 1 o'clock. We would not ask him to work that extra hour
that we had at that point scheduled." Gross conceded on
cross-examination that there was no discussion of "Rouse
having to make up the time if he was under a federal
subpoena." Also on cross-examination, Gross appeared to
qualify his strong testimony on his direct examination
concerning a definite "agreement" as above described; on
cross-examination, Gross instead testifed that "In my mind
at that point there was a meeting of minds; there was no
overt statement by Mr. Stuckenschneider or written
agreement giving consent, but everybody was in an
affirmative mind that the understanding was clear."
(Emphasis supplied.)
Rouse attended the NLRB hearing in St. Louis the
following day (August 6), driving to and from there, a
round trip distance of about 240 miles , with fellow
employee Monte Graham. After the hearing, Rouse and
Graham returned to Hannibal, arriving back between 4 and
5 p.m. after a drive of about 2 hours. On the way back,
according to Rouse, he had to make a stop because "My
tailbone was bothering me" and giving him "severe back
pain." Rouse swore that during the 2-month period prior to
this August 6 trip he had not driven a distance of as much
as 100 miles . Rouse's testimony, credible in itself and fully
credited by me, as to the back pain he was experiencing on
August 6 from or during the 4-hour round trip drive to and
from St. Louis, is corroborated by the testimony of his car
companion Monte Graham, who swore that during the ride
he observed Rouse to be in apparent discomfort and pain
as he sat and shifted his position in the car.
After returning to Hannibal and dropping Graham off,
Rouse returned home, changed into workclothes, and went
to the factory to work, even though his back pains had "got
worse." For this, Rouse took several medically prescribed
"pain pills."
Rouse's timecard shows that he reported to work at the
plant at around 4:30 and left at around 7:30 p.m. on August
6. Between 5 and 5:30 he told nightshift Foreman Ed
Cunningham that "I [Rouse] didn think I would be able to
make it, the full shift, that my tailbone was bothering me
quite a bit.... Ed Cunningham said all right, but to notify
him before I left. I told him I would." At around 6 or 6:15,
Rouse was summoned into Plant Manager Gross' office,
where (according to Rouse):
Mr. Gross told me that if I went home I was
jeopardizing my job, and I told him that I would have to
38 On the way home, he stopped off for a few minutes to notify Union
Representative Stuckenschneider that Gross had told him that "if I [Rouse]
415
be jeopardizing it, because my tailbone was bothering
me too bad to work a full shift.... He told me that I
agreed to put in a full shift, and I told him that we made
an agreement on that I would put in as much time as I
could. . . . He told me that he could fire me if I went
home without permission.... We talked about it for a
while, and I agreed with him that I would come back
starting the next evening and put in as much time as I
could to make up for the time lost.... He said that it
would be greatly appreciated.
Rouse described his welding work on the steel beams as
involving bending and lifting, as well as pulling and
pushing, some apparently heavy in nature. As credibly
testified by Rouse, he could not work beyond 7 o'clock
because of severe pain in the "tailbone," which "was
hurting and my legs were bothering me and my legs were
hurting. It was hurting me even bend over, and we had to
push these beams over, which we had to stand up and weld
a certain amount, and then push them over, which the crane
would catch and lay them down and weld more." Rouse
therefore notified Foreman Ed Cunningham that he could
not continue, stating, "My back is hurting, I am going home
regardless." When Cunningham thereupon "brought it up,
that Mr. Gross said that it would be my job," Rouse replied,
"I can't help it, I'm going home." He went home ,38 sat in a
hot tub for 45 minutes, and then to bed.
According to Rouse, there were then 6 welders (including
himself) on duty, working on only 4 steel beams to be
welded; at the normal rate of I to 2 welding man-hours per
beam, this would indicate a total of 8 man-hours of welding
work on hand to be accomplished by a crew of 6 welders.
Hannibal plant nightshift Foreman Samuel ("Ed")
Cunningham, who impressed me as a highly credible
witness, testified that after Rouse had been at work a half
hour or hour on the afternoon of August 6, Rouse "told me
that his back and stuff was bothering him, and he was sick,
and he would like to go home at 7:30. I said, yes, sir,
you can go." Not being able to locate Plant General
Foreman Baughman to let him know, but seeing Plant
Manager Gross, Cunningham told Gross, who "said that
Mr. Rouse had obligated himself to work the eight hours."
Cunningham was told by Baughman, who had joined them,
to "go back and talk to Harry [Rouse] to see if we could get
him to stay his eight-hour shift." Cunningham did so,
finding Rouse chipping or cleaning flux off beams in the
welding process. Cunningham reported to Rouse what he
had been told. At around 7:30, Rouse left, after notifying
Cunningham that he was "going on leave, regardless of
whatever happened." Cunningham testified that when he
had given Rouse permission to leave earlier in the
afternoon, he had done so because he believed Rouse's
complaints of pain, and that so far as he (Cunningham) was
concerned nothing had occurred between then and the time
Rouse left to cause Cunningham to change his mind.
According to Cunningham, although at this time there was
welding work to be done, with the welders not "caught up,"
they were "not to a great extent" behind and no farther
"behind [than] many other times." And Cunningham
testified that the consequence of Rouse's leaving when he
went home that I was jeopardizing my job ." Stuckenschneider credibly
swore that on this occasion he observed Rouse to be "in terrific pain."
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did was simply that Rouse 's work was "done by somebody
else that night . . . so that actually , as of the end of the
shift, the work had been done."
According to Plant Manager Gross ' version of the
foregoing , it was not Cunningham but Baughman who
informed him that Rouse "wished to be excused at 7:30
because his back was giving him trouble . Mr. Cunningham
[who, according to Gross, was with Baughman ] substantiat-
ed this ." Thereupon, "I [Gross ] told Mr. Cunningham
directly that I wasn 't going to accept Mr. Rouse leaving at
7:30 and Mr. Cunningham indicated that he agreed to
excuse Mr. Rouse, and I told Mr . Cunningham to go back
to Mr . Rouse and tell him that he was not excused, that if
he wished to discuss it with me he could ." When Rouse
came to see Gross , according to Gross:
I [Gross ] told Mr . Rouse that I would not accept the
excuse of his sore back as a valid excuse for leaving
work, that he should have foreseen that contingency
when he made a commitment to me on the previous day
that he would work until 12 o'clock.... When he made
the commitment to me on Tuesday , or the 5th , that he
was going to go to St . Louis and return knowing the
condition of his back , it seemed to me that at that point
was the time to indicate that he had back problems. He
did not indicate this to me on August 5 .. . . Mr. Rouse
at this point asked if I expected him to work with a sore
back I explained to Mr . Rouse at this point that if he left
work that he was doing so without permission and
because this was a violation of company rules that he
was putting his job in serious jeopardy."
According to Gross , he (Gross) left the plant at around
6:45, about three -quarters of an hour before Rouse left that
night (August 6). Gross concedes that the only "specific
consequence, in terms of welding , that ensued because Mr.
Rouse did not work beyond 7:30 in the evening on August
6" was "Simply that that work [i.e., the work that Rouse
was expected to do] had to be done by somebody else."
On the following day, August 7, although his back was
"still bothering" him, Rouse reported in on his regular
dayshift as usual , at 6 a .m. In view of the apparently heavy
lifting, as well as bending, pulling, and pushing, involved,
his foreman "took me [Rouse] off the [steel ] beams and had
me on thinwall ," and Rouse worked a full 9-hour shift until
3:30 p .m. Shortly before leaving , however, at 3 p .m., he was
summoned to the plant office , where Plant Manager Gross
informed him that although he "could be fired for going
home without authorization ," he was nevertheless only
being given a 3-day layoff on suspension without pay.
(Rouse was also not paid for the time he missed the
previous day, August 6.) According to Rouse , he reminded
Gross "that it was to my [Rouse 's] understanding that he
[Gross ] agreed that I could come back that evening [August
6 ] and put in as much time as possible ," but Gross ignored
this remark . On the next day (August 8), Gross wrote Rouse
a letter stating:
Dear Sir:
On Wednesday , August 6 , 1969 you left your job at
approximately 7:30 P .M. after being advised that if you
did so that you would leave without permission.
Since leaving the-job without permission is a violation
of company rules, you were suspended from work for
three days . Your suspension commenced Friday,
August 8 , 1969 and will continue through Saturday,
August 9, 1969 and Monday, August 11, 1969.
Let me take this opportunity to further advise you that
future action of this sort will result in suspension,
subject to discharge.
At the hearing, Plant Manager Gross admitted that he
had made the following signed statement to an NLRB
agent:
On August 7 around 2 : 45 p.m . I called Harry [Rouse ] in
and told him he was suspended for three days for
walking off the job without permission , and that his
conduct was grounds for discharge but we were not
discharging him in light of all the factors we had
discussed . I meant that because he had contended that
he had an injury I wouldn 't fire him over it . He made no
verbal reply whatsoever and left the office.
However, after conceding that he had so informed the
NLRB agent, Gross at the hearing then stated, "That's
what I told [NLRB agent ] Mrs. Smith ; that is not what I
told Mr . Rouse"; and that he was "telling [NLRB agent]
Mrs. Smith the truth" which he "meant" that he was not
"going to discharge [Rouse on August 7] because [I, Gross
wasn 't] sure whether or not he had an injury . . . That's
what I told Mrs. Smith," and agreeing also "that [is] what
[I ] am telling [you] today."
Denying that Rouse's union or organizational activity
was the reason for or played any role whatsoever in its
suspension of Rouse under the circumstances which have
been detailed , Respondent contends that its action was
taken because there was much welding to be done on the
day (August 6) in question , that Rouse did not keep his
word to work a full shift on his return to Hannibal from the
NLRB St. Louis hearing , and that Rouse left work without
permission when it did not believe him about his back pain.
With regard to the nature and amount of welding work
on hand on August 6 in relation to the available workforce,
the record is not altogether definitive , there being much
evidence , some conflicting and equivocal , on both sides. It
may be assumed for present purposes , however, that there
was such work on hand to be done on the date in question
and that Rouse's services were not only desired but needed.
Nevertheless, it is the fact-explicitly conceded by both
Plant Manager Gross and Foreman Cunningham, as has
been shown-that the only consequence of Rouse's not
working the entire shift after his return from the St. Louis
hearing was that the work which he would have done was
simply done by someone else.
With regard to Rouse's not working the full nightshift on
August 6 after his return from the Board hearing at St.
Louis, the circumstances of his being "excused" from his
shift (i.e., dayshift) for that purpose , as well as the
circumstances of his travel to and from St . Louis, and of his
reporting in to work on the nightshift for 3 hours, have been
detailed. It is the fact that Rouse did report for work that
night notwithstanding the flareup in his painful affliction. It
is also the fact that thereafter , when he informed nightshift
Foreman Cunningham that he felt he could not work the
entire shift, Foreman Cunningham excused him for that
reason , only to be overruled by Plant Manager Gross
DIXISTEEL BUILDINGS, INC.
personally. Gross assigns two reasons for this
overruling-namely, the amount of welding work on hand,
and his intention to hold Rouse to his "promise" to work
that night, notwithstanding Rouse's long and harrowing
day. As to the latter, Gross indicates that he (unlike
Cunningham) did not believe Rouse's complaints of pain.
Insofar as the welding workload on hand is concerned,
comment has already been made thereon; and it would
certainly seem that Foreman Cunningham, directly in
charge of and familiar with the shop operations, had first-
hand knowledge of the amount of welding on hand to be
done when he excused Rouse, whose work-as conceded
by Gross as well as Cunningham-was simply done by
somebody else.
Concerning Rouse's complaints of severe pain and
inability by reason thereof to continue working through the
full nightshift of August 6, it is the undeniable fact that
Rouse had sustained a substantial, painful injury to the
lower portion of his back, with lingering sequelae and
exacerbations or "flareups" precipitated among other
things by prolonged sitting, such as was necessarily
involved in his 240-mile, 4-hour round trip drive to St.
Louis that day. Rouse's testimony regarding his pain
sensations in connection with the sequelae of his back
injury, credible and credited by me though it is, is by no
means the only evidence thereof. It is undisputed that he
missed 17 consecutive days from work following his injury
and that he was and still is under medical care. Other
employees credibly testified to their personal observations
of Rouse's apparent pain, including on the very date in
question, and its interference with his work capability.
Respondent itself was well aware of Rouse's accident and
condition, on occasion restricting him to lighter work.
Respondent's Plant Manager Gross conceded that Rouse
..was regular in his work attendance during the time he
returned in or around February [ 1969 ] after his injury and
to this date in August [i.e., August 6, 1969]." Gross states
that, while not a physician or otherwise demonstrably
expert or knowledgeable on the subject, the basis for his
disbelief of Rouse's complaints on August 6 was "that he
[Rouse] hadn't missed any time for the period of .. .
February [27] to August 6 because of his back injury." This
by no means establishes a plausible basis for rejecting out
of hand Rouse's complaints on August 6, considering
Gross' admitted knowledge that Rouse was still under
medical care, and considering Rouse's completion on that
very day (August 6) of an unprecedented 4-hour, 240-mile
automobile trip, with the purpose and circumstances of
which Gross was also thoroughly familiar. As to Rouse's
alleged "promise" or "agreement" of the previous day
(August 5) to work on the nightshift on August 6 after his
return from St. Louis, I am satisfied on the basis of my
demeanor observations and the evidence as a whole that
39 In this connection , I reject as utterly unworthy of belief the testimony
of Respondent 's welder James T Rowland to the effect that on August 5,
when Rouse told him after returning from Gross' office that he was going
to St Louis the next day "to verify cards that had been signed by
members" and had agreed to "work his shift " on his return, he at the same
time informed Rowland that "I don 't intend to work eight hours " Rouse's
testimony shows he did not say anything about not intending to work on
his return I have no hesitation in crediting Rouse in preference to
Rowland , who impressed me as evasive and untruthful Among other
417
Rouse in fact understood and agreed, in effect, to report in
and work as long as he could on the night shift; perhaps
Gross understood or interpreted otherwise. However, in
any event, whether or not there was a firm "promise" or
"agreement" by Rouse on August 5 to work the full
nightshift after his return from St. Louis on August 6, it
obviously was subject to the implied common sense
conditions that he would be on hand and that he would be
capable of working. Even any "promise" or "agreement"
on his part would have had to yield to those assumptions or
conditions, whether or not expressed. Thus, Gross himself
conceded that Respondent does not expect sick employees
to work; that he would not have "expected him [Rouse ] to
work for you [Gross] just because of a commitment he
made to you the day before when he did not know that he
was going to have back trouble"; that he had never "known
Harry Rouse to lie . . . in order to get off work"; that, if
employee Askew (instead of Rouse) on August 6 had asked
to go home because of back pain, Gross would have
authorized it; and that similarly Gross would have allowed
Rouse to go home on August 6 "if Mr. Rouse had not gone
to the [NLRB] hearing on that date and had not entered
into this agreement and had come to you [Gross] on August
6, told you he was hurting and asked you if he could leave."
In view of Gross' achnowledgment that Foreman
"Cunningham has authority on the night shift to allow
employees to leave early without checking with [me,
Gross ]," this being true "even if production is rushed and
there is a big backlog of work," the exceptional nature of
Gross' action in overruling Cunningham, particularly when
there was concededly no compelling reason for any
particular welder to work that night ( since , as concededly in
that case of Rouse, his work was simply done by another)
nor any untoward result from his leaving early, strongly
suggests that the reason advanced was not the real reason
but that Rouse was a marked man. So indeed he was, but
only because he was the acknowledged "spearhead" of the
unionization drives which Respondent was bitterly resist-
ing. Where an employer's disciplinary action in issue
"involves the `key' employee in an organizational drive, it
may supply shape and substance to otherwise equivocal
circumstances." N.L.R.B. v. Davidson Rubber Company, 305
F.2d 166, 169 (C.A. 1). See also , N.L.R.B. v. Nabors Co., 196
F.2d 272, 275-276 (C.A. 5), cert. denied 344 U.S. 865.
Under the described circumstances , Rouse's reporting to
the plant for the second shift after his grueling day to and
from St. Louis is strong testimonial to his good faith, just as
his foregoing of his pay for the full shift supports his plea
that he really could not work.39
In view of the record as made, under the circumstances
shown, Gross' insistence to Rouse, when the latter
remonstrated with him over not being permitted to leave on
the night of August 6 when he was truly unable to work,
things, Rowland denied informing Gross or the Company about this and
blandly swore he came to the hearing without "hav[ing] the least idea"
what he was expected to testify to, swearing that he had not even discussed
it with counsel who called him to the witness stand . (To the credit of
counsel, it should be noted that he, counsel , apprised the Trial Examiner,
after the witness was excused , that he had indeed interviewed Rowland
before the hearing.) Rowland also testified that he returned from vacation
in order to serve without pay as Respondent 's observer at the September 9
Board-conducted election
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"that he [Rouse] should have foreseen the contingency or
the possibility that his back was going to bother him before
he ever agreed to make the work up ; and, second , I didn't
think he was fulfilling his agreement to me , his obligation
that he had agreed to the previous day," has a frivolous ring
and impresses me as plainly not the true reason why
Rouse's reasonable ! requests was, adamantlyi • rejected nor
the true reason why he was thereafter suspended for 3 days
without pay shortly before an upcoming Board election.
Respondent's "explanation" to Rouse for his suspension is
further thrown into question by Gross' indication of his
own uncertainty about Rouse 's illness, on the occasion
when Gross subsequently stated to the Board agent that he
(Gross) told Rouse that "his conduct was grounds for
discharge but we were not discharging him in light of all the
factors we had discussed . I meant that because he had
contended that he had an injury I wouldn 't fire him over
it." Yet if , as Gross recognized , Rouse's inability to work
because he was sick was no reason for discharging him it
was also no reason for suspending him. 40 On the record
here presented , Respondent had no basis whatsoever for
believing, and I find that it did not in fact believe, that
Rouse was shamming or feigning illness and inability to
continue work throughout the night shift on August 6.
I am also not uncognizant, in attempting to unravel the
confused skeins of what was really at the core of
Respondent 's startling 3-day suspension of union ringlead-
er Rouse under the circumstances which I have painstak-
ingly detailed , the credited testimony of Porter that in the
plant office in mid-August Respondent 's former plant
foreman, Monical , identified "Harry Rouse [as] being the
ringleader, getting paid by the union , by the guys who were
trying to get the union in"-undisputed by Monical; as well
as the credited testimony of Hooper that in mid -August
Respondent's former plant foreman , Monical , told him that
"Harry Rouse was so mixed up with the union that he
[Rouse ] was already gone . He [Monical ] said if the union
would get in there would be a bunch of people that would
be laid off , Harry Rouse for sure"-also wholly undisputed
by Monical . Upon the total record , the reasons advanced
by Respondent for its suspension of Rouse simply "fail[s]
to stand under scrutiny" (N.L.R.B. v. Dant, 207 F .2d 165,
167 [C.A. 9 ], and cases cited).
In the total posture of the record presented , including
careful evaluation of testimonial demeanor , I am fully
persuaded and therefore find that the reasons advanced by
Respondent for its 3-day payless suspension of Rouse in
mid-August were pretextuous and were not the true reasons
at all. I find that at least one of the true reasons , and in fact
the true predominating reason , was Rouse's continued
preeminence in union organizational activities protected by
90 It should be noted in this connection that numerous employees,
among them Brown, Graham, Green, Hastings, Hooper, Lear, and
Porter-including two welders (Hooper on the dayshift and Brown on the
nightshift)--testified credibly that they had never been asked to make up
any time missed from work , nor to their knowledge had any employee
other than Rouse and then only on the occasion (August 6) described.
Indeed, at one point Gross himself acknowledged that he had "never"
required employees excused from a shift to make up the time.
41 "The Board , of course , may base its finding on circumstantial as well
as on direct evidence . Intent and motive are subjective and often may be
proved only by circumstantial evidence . N.L.R.B. v. Melrose Processing
Co., 351 F.2d 693, 698, 60 LRRM 2328 (8 Cir. 1965). Illegal motive has
the Act from such reprisal . As the acknowledged preemi-
nent union organizational spearhead among its Hannibal
plant employees , Rouse was an increasingly painful thorn
in Respondent's side, particularly considering the potential-
ly imminent successful unionization indicated by the
apparent or feared extent of the Charging Party's
representational strength in this third most recent unioniza-
tion drive. To retaliate against Union spearhead Rouse in
the way that Respondent did and at the time that it did-on
the day he attended a Board representation hearing shortly
before the upcoming Union election-was to signal to the
employees in unmistakeable terms the type of retaliatory
penalty that attended participation in the unionization
activity which Respondent had decried and was openly
inveighing against . The totality of circumstances involved
in and surrounding Respondent's suspension of Rouse
persuades me, and I accordingly find that, as alleged in the
complaint , that suspension was in fact because of Rouse's
Union organizational and concerted activities for collective
bargaining or employees ' mutual aid and protection. Cf.,
e.g., McGraw-Edison Co. v. N. LR.B., 419 F.2d 67 (C.A. 8)41;
N.L.R.B. v. Dazzo Products, Inc., 358 F .2d 136 (C.A. 2);
N.L.R.B. v. Lipman Brothers, Inc., 355 F.Zd, 15 (C.A. 1);
N. L. R. B. v. Longhorn Transfer Service, Inc., 346 F .2d 1003,
1006 (C .A. 5); N.L.RB. v. West Side Carpet Cleaning Co.,
329 F .2d 758 , 761 (C.A. 6); N.L.R. B. v. Solo Cup Company,
237 F.2d 521 (C.A. 8); Texas Aluminum Company, Inc., 181
NLRB No. 15.
2. Terry Coons
The complaint (para. 6B, C, and D) alleges that
Respondent also discharged Terry Coons, on or about
August 26 and has not since reemployed him, because he
engaged in Union or other protected concerted activity.
Coons, now a college freshman , was hired on July 23
(before starting college the following fall) as a temporary
summer "helper" on the second shift (3:30 p.m.-1 a.m.),
working mainly on the loading dock. He was discharged on
August 27 or 28 with a document stating that he had been
"Discharged because of excessive unexcused absenteeisms.
Temporary employee," and was not recommended for
rehire. His total length of employment with Respondent
was thus only about 1 month.
The history of Coons' short tenure and discharge is in
many material aspects undisputed. Coons testified that
soon after starting to work on August 26 (Monday), he felt
ill and informed Night Foreman Cunningham that "my
stomach was bothering me and I felt like I was getting a
touch of the flu." Cunningham thereupon excused him.
That was around 5:30 p.m. Coons did not come in to work
been held supported by a combination of factors , such as 'coincidence in
union activity and discharge ', N.LR.B. v. Council Mfg. Corp., 334 F .2d 161,
164, 56 LRRM 2735 (8 Cir. 1964); 'general bias or hostility toward the
union', N.LR.B. v. Superior Sales, Inc., 366 F.2d 229, 233, 63 LRRM 2197
(8 Cir. 1966); variance from the employer's 'normal employment routine',
N.LR.B. v. Melrose Processing Co., supra, 351 F.2d at 698; and an
implausible explanation by the employer for its action, N.LR.B. v. Harry
F. Berggren & Sons, Inc., 406 F.2d 239, 245-46, 70 LRRM 2338 (8 Cir.
1969), cert . denied , 396 U .S.... See Mead & Mount Construction Co. v.
N.LR.B., 411 F.2d 1154, 1157, 71 LRRM 2452 (8 Cir. 1969). .. .
McGraw -Edison, supra. All of the factors to which the court there called
attention , and more, are present here.
DIXISTEEL BUILDINGS, INC. 419
on the 2 following days, August 26 and 27 (Tuesday and
Wednesday), because of what he calls a "stomach .. .
upset" not requiring medical attention. Coons concedes
that although he has a telephone at home, he did not
telephone or in any other way at any time communicate
with the plant to let them know he would not be in to work.
He explains this failure, which is a violation of plant written
requirements (with which he claims to have been unfamil-
iar), by stating that since he had been excused by
Cunningham on Monday evening "I figured that . . . any
other day that I was absent, it wouldn't be necessary for me
to call in because they would assume I was sick." Coons
concedes that where he worked as a helper on the loading
dock there was work to keep two men (of whom he was one)
busy.
As has been indicated, Coons claims unawareness of any
requirement that an employee intending to absent himself
from work notify the plant. His claim of ignorance is
sharply disputed in various ways. To begin with, there is no
question that an employee handbook, which it is Respon-
dent's practice to distribute to new employees (including,
according to Plant Manager Gross, temporary summer
employees such as Coons), contains the following instruc-
tion to employees:
Your Obligations .. .
When a shift begins and at all other starting and
stopping times each employee is required to be at his
designated job place ready to work. It is the duty of an
employee to report for his scheduled shift unless he has
arranged in advance with his supervisor to be absent. If
unavoidably prevented from reporting, the employee
must notify the company as far in advance of his shift as
possible and give satisfactory reason for his absence. If
unable to give the proper timely notice referred to
above, the employee must present an acceptable excuse
to the company for failure to do so.
Since Coons denies he received a copy of this handbook or
otherwise saw this particular portion of it-he concedes
that early in August he familiarized himself with the portion
thereof dealing with wages- and Respondent was unable
to provide explicit proof of the delivery of a copy of the
handbook to Coons, the handbook itself may be regarded
as inconclusive on the issue of Coons' knowledge of the
existence of the rule.
However, this (August 26-27, immediately preceding his
discharge) was not the first occasion on which Coons
absented himself from work without notifying the plant,
and there is credible proof that on the earlier occasion he
was expressly alerted to the requirement. Indeed, Coons'
42 On cross-examination , after first indicating he did not "get to a
telephone . . . until I got to my girl friend's house . . . [at] approximately
4:30," Coons thereafter also stated , " I believe the first time I was near a
telephone was approximately 8 o'clock when I got home." He conceded,
however, that not even then did he "call the plant ... to say that [I] had
not been able to get to a phone before this."
42 From the trial transcript:
TRIAL Exn,ut4ER : Had you been to East Moline visiting relatives?
THE WITNESS [Coons]: Yes, sir.
TRIAL Ex wINER : Is that when the car broke down?
THE WITNESS : No, sir. The car broke down about five miles east of
New London here.
TRIAL EXAMINER : What did your having to go to East Moline to
own account of that earlier absence indicates recognition, if
not knowledge, on his part of such a requirement.
The earlier episode of absence occurred on August 11,
when Coons remained away for his entire 8-hour workshift
because (according to Coons' testimony) "my car quit on
me on a country road" while "taking a girl home" en route
to work "just about an hour before I was to report to work
... and I couldn't get to a telephone." Coons conceded,
however, that at no time during the remainder of the day,
either, did he telephone the plant or otherwise notify his
Employer that he would not be in to work.42 On the
following day (still according to Coons' testimony), while at
work in the factory, General Foreman Baughman ap-
proached him and said, "We missed you yesterday" and
asked him where he had been. Coons told him, " I was in
East Moline, Illinois, visiting some relatives . " 43 At this
time , Coons had only been in Respondent's employe about
2 or 3 weeks. According to testimony of Respondent's
General Foreman John Baughman , whom I credit in this
aspect, on this occasion, when he spoke to Coons after the
latter's return to work on August 12, Baughman "explained
to him that he was supposed to call and let us know when
he couldn't be there." Although Coons denies Baughman
told him this, not only on comparative testimonial
demeanor do I prefer Baughman 's version , but it seems
quite unlikely that, after an unexcused and unexplained
absence by an employee, the General Foreman would
merely chat amiably with him without reminding him of the
standing requirement that the plant be notified of a
projected or unavoidable absence . Furthermore, Coons'
own testimony on direct examination that when he failed to
report to work on August 11 when "my car quit on me on a
country road" while "taking a girl home" on his way to
work, "I couldn't get to a telephone" (emphasis supplied),
appears to betoken recognition on his part of the necessity,
if not requirement, for calling the plant to notify them he
would not be in.44
When, after his 2-day absence on August 26-27 without
calling in, Coons showed up for work on August 28, he was
informed by General Foreman Baughman that "it had been
two days and we hadn't heard from him . . . I [Baughman]
told him that we had already typed up his discharge for
excessive absenteeism and that he was no longer em-
ployed." The decision to discharge Coons was made by
Baughman ; Plant Manager Gross heard about it subse-
quently.
It is stipulated that Coons was "employed during his
entire tenure as summer temporary help, and would be
excluded from the [collective- bargaining ] unit. It is further
conceded that Coons has at no time since his discharge or
visit relatives have to do with your car breaking down the day before?
THE WITNESS : Nothing.
Coons later explained that he was taking the girl home on his way
back from East Moline , and that he arrived in New London (about 10
miles from Hannibal) at 3 p.m. He was due back to work in Hannibal
at 3:30.
94 From the trial transcript:
Q. [By Respondent 's counsel] What difference did it make that
you couldn' t get to a telephone when your car broke down?
A. [By Coons ] I don't know.
However, Coons almost immediately attempted to retrieve himself:
Well, I thought the company should know why I wasn't at work,
why I wasn't coming in.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since starting school full time in September after his
discharge, sought or been denied reinstatement or reem-
ployment at the Hannibal plant; nor has it been offered to
him.
With regard to his union activity at or in connection with
the Hannibal plant, Coons described it as consisting of
signing a union card a few days after he was hired, an
action which was to his knowledge unobserved; attending
four or five question-and-answer meetings with perhaps as
many as 10 other employees, at the union representatives'
motel, and three or four organizational meetings with 15 or
20 other employees at a local union hall. He also, together
with a fellow employee (Woodson), furnished the Union
with the names of other nightshift employees, and he placed
union literature on a table in the employees' rest area,
which also to his knowledge was unobserved. He concedes
he did no handbilling until after his discharge. The
testimony of union representatives Stuckenschneider and
Todd, while corroborating Coons' testimony in this aspect,
shows that various other employees-who have not been
discharged or in any way disciplined-were at least as
active, if not more active or far more active, in union
affairs than Coons. General Foreman Baughman swore
he was unaware of any union activity on the part of
Coons before the latter filed his unfair labor practice charge
here.
Respondent produced proof of the discharge of a number
of employees other than Coons, under comparable
circumstances, for excessive or unexcused absenteeism.
While I have credited General Foreman Baughman's
testimony that he explicitly notified Coons on the occasion
of his earlier (August 11) unexcused absence that it was
necessary to notify the plant if he would not be in for work,
it should be emphasized that even if I made no such finding
and even if it were to be assumed that Coons was on the
later occasion (August 26-27) unaware of such a require-
ment , Respondent's discharge of Coons for failing to call in
that he would not be in to work on August 26 and 27 would
still not be violative of the Act 45 Cf. Trojan Steel
Corporation, 180 NLRB No. 107, Forster Manufacturing
Co., 175 NLRB No. 29. It does not appear that the union
activity of Coons (a temporary summer employee whose
total length of employment with Respondent was only
about a month, who was not a member of the bargaining
unit [it is not here intimated that this circumstance is a
defense to violation of the Act], and whose testimonial
unsureness and evasiveness, if not worse, did not leave a
favorable final impression upon me) was particularly
noteworthy. Certainly it did not compare with that of
Rouse, nor apparantly even with that of other employees
who were neither discharged nor disciplined or otherwise
retaliated against by reason thereof. Union membership
and activity do not preempt an employee from discharge
45 This is true notwithstanding Baughman's apparent concession during
cross-examination that ignorant violation of a workrule by an employee
would not be "grounds for discharge." Certainly it would be grounds if, as
Baughman 's credited testimony establishes in the case of Coons, the
employee was expressly informed of the rule at least on the occasion (in
Coons' case , August 11 ) of a prior unexcused absence . Although an
examination of Respondent's penalties for infraction of its "Plant Rules"
contained in its employees ' handbook indicates that the penalty for a
for cause; and, subject to credibility requirements, the
employer may determine what constitutes cause, so long as
it does not trespass the Act's preserve. As the Board
recently stated in J.P. Stevens & Co., Inc., 181 NLRB No.
97:
The Act's grant of rights to employees to engage in
organizing activities, to belong to a union, and to
engage in collective bargaining was not intended to
deprive management of its right to manage its business
and to maintain production and discipline.
Measured by these standards, Respondent had sufficient
cause for discharging Coons under the circumstances
shown. And the discharge not having been in violation of
the Act, Respondent was and is under no obligation to
reinstate or rehire him; nor has it refused to do so, since he
has not applied for reemployment.
I find that it has not been established by a fair
preponderance of the substantial credible evidence, as
required, that Respondent discharged, or has failed to
reinstate or rehire, Terry Coons because of his union or
other protected concerted activity as alleged in the
complaint.
D. 8(a)(5) Violations
The complaint (paras. 7-12 and 14) alleges that since July
3 Respondent has continued to refuse to bargain collective-
ly with the Union as the duly designated representative of a
majority of Respondent's employees in an appropriate
collective-bargaining unit, while at the same time engaging
in the program of 8(a)(1) violations which has been
discussed, in order to undermine and destroy the Union's
majority representative status.
Union organizational activity involving the Charging
Party at Respondent's Hannibal plant commenced in
earnest in late April. By the beginning of July the Union
had obtained signed collective-bargaining authorizations
from a majority of the Hannibal plant production and
maintenance employees. On July 3, after Hannibal Plant
Manager Gross refused to talk to union representatives who
had called on him, the Union, by certified mail, informed
Respondent that it represented and wished to meet and
bargain collectively with Respondent on behalf of Respon-
dent's Hannibal plant production and maintenance
employees, as evidenced by authorizations received by the
Union from a majority of those employees and which it
signified it was willing to exhibit for verification. This
formal request was received on the same day (July 3) by
Respondent, which by its letter of July 7 refused to
recognize or meet or bargain with the Union, on the ground
that it "doubts that your organization represents an
uncoerced majority of its [i .e., Dixisteel's] employees in any
appropriate unit." No basis for the alleged doubt was set
forth. The Union's offer to submit its authorization cards
for verification was at the same time declined because "the
second violation for tardiness or absenteeism is only a 3-day suspension
(and discharge for the 4th violation), as credibly explained by Gross, and
as is understandable , a stricter standard is applied by Respondent in regard
to temporary summer employees, such as Coons was. Furthermore, the
"rules" in the employees' handbook (which Coons denied receiving or
seeing) are not contractual , and, even if they were, Respondent's
nonadherence thereto would not of itself constitute an unfair labor practice
in violation of the Act but might at best be some evidence of one.
DIXISTEEL BUILDINGS, INC.
reasons which gave rise to this company's doubt of your
organization's uncoerced majority status are such that they
can only be resolved through a board conducted secret
ballot election." Respondent's position has remained
unchanged since then, and no bargaining has taken place,
nor has the Union in any way been recognized.
At the hearing, Respondent withdrew its denial of the
appropriateness of the bargaining unit in question. I find
that the bargaining unit claimed, which is a conventional
unit of production and maintenance employees, is appro-
priate for collective-bargaining purposes, as alleged in the
complaint.
An inspection of the Union's authorization cards in
question discloses that their wording is totally clear and free
from ambiguity. These cards, in bold letters captioned
"AUTHORIZATION FOR REPRESENTATION," in plain terms
designate and appoint the Union as the collective-bargain-
ing representative of the signatory employees.
Credited testimony of numerous employee signatories of
these authorization cards, as well as other witnesses, clearly
establishes, and I accordingly find, that the following
employees, comprising a clear majority of Respondent's
employees in the foregoing collective-bargaining unit,
voluntarily and without coercion or misrepresentation,
unconditionally executed and delivered or caused to be
delivered to the Union such authorization cards, prior to
July 3 (the date of said demand), with a clear understanding
of the nature, contents, and effect thereof: 46
Name 1969-Date
Almandinger, D.P. 6-24
Almandinger, L. B. 6-19
Amburn, D. 6-19
Askew, R. 6-21
Bailey, J. 6-20
Brown, D. E. 6-24
Brownell, W. J. 5-5
Campbell, R. W. 7-2
Davis, G. L. 6-9
Donaldson, P. R. 7-2
Dudley, F. L. 6-30
Dusenberry, W. 6-18
Elkins, J. A. 6-24
Ebers, D. J. 6-19
Ely, J. M. 6-4
Fogle, D W. 6-25
Fountain, A. F. 5-17
Freeman, D. W. 7-1
Graham, M. 5-20
Green, W. C. 5-16
Hastings, G. W. 6-18
Hooper, E. H. 5-20
Kelley, J. E. 5-17
Kelley, W. L. 6-5
48 See discussion, infra
47 C. E Churchill, who executed an authorization card on June 12, is
not included in the names of employees in the stipulated unit list for July 3
(G C Exh 23)
The following additional valid union authorization cards were
unconditionally executed and delivered to the Union, subsequent to July 3
and prior to September 9 (i.e, the date of the Board -conducted union
election) by additional employees of said collective -bargaining unit,
likewise voluntarily and without coercion or misrepresentation , with a clear
Lear , C. H. 6-17
Luken R. 6-18
Malone , J. 5-30
Michaels, A. L. 6-19
Mickels , F. L. 6-25
Noel, R. 6-18
Porter , J. A. 6-5
Rhodes, R. D. 5-20
Rice , D. 6-19
Rouse , H. T. 5-5
Sanders, V. 6-17
Sellars, A. 6-13
Sheffield , T. E. 6-13
Sidwell , L. D. 7-2
Taylor, F. 6-27
Thomas, G. W. 6-3
Wade , R. L. 6-17
Walker, N. W. 7-2
Wienhoff , R. W. 6-19
Wilson , K. E. 6-20
Woodson , T. 6-30
421
Total valid Union authorization cards prior to July 3 .. .
45.47
It is stipulated that on July 3, the date of the foregoing
union request for recognition and collective bargaining, the
aforedescribed collective-bargaining unit consisted of 83
employees, including all of the 45 employees enumerated
above whose authorizations it held on that date. Thus, on
that date (July 3), the Union was the duly designated
collective-bargaining representative of 45 of the 83, or
54.2% of the unit employees, a clear majority.
Although the vast majority of the foregoing union
authorization cards present no issues deserving comment, a
few do and these will be individually discussed.
1. Askew
The union authorization card concededly executed and
delivered by Richard Askew has been thrown into sharp
question. Askew now claims that in connection with that
card his fellow employee "Rouse told me if they had 51 per
cent of the cards or more that they could hold an election to
see if the Union could come in. I am sure he said that about
an election." According to Askew, Union Representative
Stuckenschneider had previously visited him no less than
15-20 times and had also "said if they had enough of them
they could hold an election for a union." However, Askew
conceded that he "read the card before [I] signed it," that
he did "understand what it said," and that he even made a
correction in the information (relating to his job classifica-
tion) on the card before signing it. Of course, the card itself
understanding of their nature , contents , and effect
Name 1969-Date
Davis, D. (Henry) 7-31
Davis, S E. 7-31
Kinder, F E 7-23
Leake, B J 7-31
Moyers, B. P 7-23
Murphy, J 7-23
Total additional valid Union authorization cards, July 3-September 9-6.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
says nothing whatsoever about an election , and its purpose
as indicated by its wording is entirely clear.
Nevertheless-for this purpose ignoring the semantic
intricacies inhering in the word "could" as used by
Askew-this would still not rule out the possibility that the
use to which the card would be placed was misrepresented
to him or that the card was conditionally delivered by him
for such other use (i.e. election) only or that his signature to
the card was procured through fraud . Cf. N.L.R.B. v.
Koehler, 328 F .2d 770 (C.A. 7); Peterson Bros., Inc., 144
NLRB 679; Morris & Associates, Inc., 138 NLRB 1160,
1164-65 ; Englewood Lumber Company, 130 NLRB 394. It is
these and similar considerations which tender the issues,
largely of credibility , around which the validity of Askew's
authorization revolves.
Questioned more closely concerning his conversation
with Stuckenschneider involving the card , when asked
whether Stuckenschneider told Askew "anything at all
about going to [Plant Manager] Mr. Gross 's after he got a
majority of the cards signed," Askew did not deny this but
responded merely , "I couldn't say," When asked to narrate
what Rouse told him, Askew replied that it was "that if they
had 51 per cent they could have an election to see if the
Union could come in or not."
Rouse , who received the signed authorization card from
Askew , testified that he explained to Askew that "it was an
authorization card for the union to represent the employees
for the negotiations of a contract, the cards would go to the
company for the union to be recognized . If they recognized
the union then they would negotiate for a contract.. . . He
[Askew] asked what if the company didn 't recognize them.
I told him the cards , then, would go to the Labor Board for
a date set for an election.... I told him that we would
have to have 51 per cent or better before the union could go
to the company." Rouse flatly denies telling Askew that an
election could be held if the Union obtained signed cards
from at least 51 per cent of the employees.
According to Union Representative Stuckenschneider, he
visited Askew at most three times in connection with union
organizational attempts . On the first occasion , Stucken-
schneider "told Mr . Askew that we were attempting to get
all of the Dixisteel employees signed up and that as soon as
we did we would seek to get a contract from Dixisteel, ask
recognition and seek to get a contract ." Stuckenschneider
Outlined our [i.e., the Union 's] entire program to Dick
[Askew ]. I told him about the Sheet Metal Workers
Union, what we proposed to do . I asked him to sign a
card.... I handed him a card , explained the purpose of
the card to him, explained what was contained on the
card.... I read the card to him , I turned the light on in
the car, because my son was with me and he was trying
to keep warm, and I told him to lock the door while I
was gone , and I had opened the door and I read the
card to him , I explained to him what it authorized us to
do, that we could go to the company, demand
recognition from the company , and begin negotiating
an agreement as soon as the company agreed to do so. I
also explained to him about the drafting of the contract
proposal on the fact they would vote on it and so forth,
before it was ever presented to the company.
Stuckenschneider denies that the question of union election
was in any way discussed or raised . On a subsequent
occasion,
Mr. Askew and I had quite a lengthy conversation on
that particular night , the weather was warmer and his
entire family was outside, and I recall some of the
children playing in the mud puddle , and Mr . Askew had
a lot of questions about the union , about electing a
committee , about what the dues would be, about
elections in the union , about how the union organiza-
tional setup was-well, what the organizational setup
was, whether they would have their own local union or
belong to another local union , and so forth . And he said
that he had gotten a lot of these questions from work,
and I knew that Mr. Askew had been talking to the
company about some of these things , or at least I had
gotten word that Mr . Askew had been in the company
office and talked to some of the company people about
these things . Again we talked about authorization cards.
I asked him several times to sign the card . I'm sure I
explained the purpose of the authorization card to Dick
again, because I had gone over it with him on at least
two or three occasions , the purpose of the signing the
card was to authorize us to represent him.
On this occasion, Askew asked Stuckenschneider "what
happens if the company won't deal with you, if the
company won 't agree to sit down and start negotiating, and
I told him on this occasion . . . that the company had to, by
law they had to deal with us once we got a majority signed
up. However , if they didn't, we would have to file charges
against them, or we had an alternative of going to the Board
and seek an election." Askew promised that he would "sign
a card for Harry Rouse." A few days later, Stuckenschneid-
er received from Rouse an authorization card signed by
Askew.
At no time has Askew sought the return of his card from
the Union nor indicated to the Union that he did not wish it
to represent him or to limit the purpose for which the card
should be used.
After careful evaluation of the record as a whole, and
close observation of testimonial demeanor, I am unable to
credit Askew 's version of what he claims to have been told
the authorization card was for . As has been stated, the
wording on the card is plain, clear , and explicit ; and Askew
had ample opportunity not only to read but to study and
ruminate on it. Indeed, he himself concededly made a
correction on it before signing it . And on the basis of
observed testimonial demeanor I have no hesitation
whatsoever in preferring the testimony of Stuckenschneider
and Rouse to that of Askew . Both Stuckenschneider and
Rouse impressed me as credible witnesses ; the same can be
no means be said for Askew , as I have already had occasion
to indicate in a previous connection . Stuckenschneider
furnished a comprehensive , clear, and convincing account
of his dealings with Askew , as distinguished from Askew's
incomplete version, haltingly delivered with evasiveness,
alleged memory lapses, and overt hostility. In the normally
difficult task of credibility assessment, I was not uninflu-
enced by what appeared to me to be Askew's duplicitous
attempt-alluded to in a previous connection-to escape
from the pretrial affidavit which he gave to the Board agent
at a time when he had no discernible motive to tell other
DIXISTEEL BUILDINGS, INC.
than the truth. Having closely observed Askew. I received
the impression that he was attempting to engage in
deception at the hearing in attempting to thread his way out
of that affidavit. Under these circumstances, and consider-
ing the countervailing evidence, I am unable to credit
Askew's testimony to the effect that the authorization card
which he signed was to be limited to or utilized only for or
in connection with a Union election. I accordingly find that
the authorization card which Askew executed and delivered
was a valid designation of the Union as his collective-
bargaining representative and that it was unconditionally
so intended and delivered by him.
2. Ebers
Maintenanceman Daniel Joseph Ebers testified that at
the time he received and signed the union authorization
card he was told it was "just . . . for recognition ... just
about so the union could be recognized by the company,"
and that nothing was said about an election at any time
before he signed the card. However, Respondent's counsel
succeeded in eliciting from Ebers that "when [I] signed the
card . . . Dust started working then, and I didn't know how
the company was. So, I signed one just in case I didn't like
the company, then, I could vote for the union to see if they
could do something for me.. . . Just kind of a safety valve,
if I didn't like the company, I could go with the union, if I
didn't like the union, I could go with the company." Ebers
told this to an associate of Respondent's counsel when in
the course of his trial preparation Ebers was interviewed by
him in Respondent's Hannibal plant office in the presence
of Plant Manager Gross.
As has been indicated a number of times, the wording of
the authorization card here is plain and clear. There is no
evidence that in signing it Ebers was in any way misled;
indeed, the evidence establishes the contrary. Although it
has repeatedly been held that an employee's "subjective
intent"-particularly as attempted to be reconstructed or
allegedly reconstructed under the watchful eye of his
employer (especially an employer who has meanwhile
engaged in unfair labor practices to oust the union) at the
trial-is irrelevant or of questionable weight48, there is
nothing to indicate that Ebers did not intend its conse-
quences at the time of execution as well as thereafter;
namely, appointment and authorization of the Union as his
collective-bargaining representative. Such authorizations
are, of course, always subject to revocation or withdrawal,
which was not the case here.
I find that the union authorization card of Daniel Joseph
Ebers was unconditionally executed and delivered by him
as a valid designation of the Union as his collective-
bargaining representative.
3. Rhodes
Nightshift plateshear operator Rudy Dale Rhodes,
describing the circumstances attending the execution of his
union authorization card, testified that he was told by
48 See, e g, N L R B v. Gissel Packing Company, 395 U S 575, 608,
N L R B v American Art Industries, Inc., 415 F 2d 1223,1228-1229(C.A. 5),
International Union, UAW v. NLRB (Preston Products Corp),
392 F 2d 801, 807-808 (C A.D C ), cert denied 392 U S 906, NLRB v
423
Rouse "that they were passing cards around to try to get a
union to negotiate with the company so that if we got
enough cards and everything to negotiate that they would
vote on it." However, a long interval of time having
elapsed, Rhodes also testified that "I [Rhodes] don't
remember exactly what he [Rouse] said"; and he then
conceded that Rouse did not use the word "vote," although
he still later indicated that Rouse did speak of a "vote on a
contract " (emphasis supplied). Rhodes continued to
emphasize, "I don't really recall exactly just what his words
were, it has been so long ago." With his recollection
refreshed by a more contemporaneous pretrial affidavit
given to a Board agent, Rhodes at length testified that
"Harry [Rouse ] gave me the card and said they were trying
to get a union and he asked me if I would want the union to
represent me. I told him that I wanted the union more or
less to represent me. I read the card, signed the card, and he
said that if enough cards were gathered that the union
would take them to Mr. Gross and they'd go ahead." He
added that he was unable to recall "what was said about an
election," and after what appeared to be an overtaxingly
supreme effort on his part he insisted that "I just don't
know how to recall it any more than I have." However, he
agreed that he both read and understood the authorization
card which he filled in and signed.
Employee Harry Rouse testified firmly, unequivocally
and convincingly, that he did not solicit Rhodes' card at all,
but that employee Lear (who did not testify on this)
apparently did. In view of Rouse's testimony concerning his
own extensive card solicitations, I am unable to perceive
any reason why Rouse-who impressed me as a truthful
witness-should deny that he also solicited Rhodes' card,
unless he in fact did not do so. I credit Rouse's testimony in
this aspect.
Rhodes demonstrated a concededly highly deficient
recollection of the circumstances surrounding his execution
of his union authorization card, exhibited a high degree of
equivocation concerning the nature of any discussion about
an "election" or "vote," and conceded that in any event it
was "vote on a contract" which was mentioned. Notwith-
standing Rhodes' pitifully inadequate or perhaps pretended
or apprehensive recollectional endeavors, he conceded
without equivocation that he read and understood the
authorization card which he filled in and signed. I do not
credit so much of his testimony as may conceivably be
construed to indicate that he was told that the card was for
union election purposes or for union election purposes
only. See cases cited, supra, footnote 48.
I find that the union authorization card of Rudy Dale
Rhodes was unconditionally executed and delivered by him
as a valid designation of the Union to be his collective-
bargaining representative.
4. The "Todd Cards" contention
Although not known to Respondent at the time of its
rejection of the Union's recognitional request, during the
trial certain testimony elicited from union representative
Southbridge Sheet Metal Works, 380 F 2d 851, 855-856 (C A 1); Marie
Phillips, Inc, 178 NLRB No. 53; McEwen Manufacturing Co, 172 NLRB
No 99, Levi Strauss & Co, 172 NLRB No 57; G & A Truck Line, Inc, 168
NLRB No. 106, enfd 407 F.2d 120 (C A 6)
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David E. Todd on his direct examination, and reiterated or
amplified on voir dire or cross-examination, forms the basis
for the additional contention by Respondent at this time
that the Union's authorization cards are invalid for the
purpose of establishing the Union's asserted representative
status. Even though this did not form a basis for
Respondent's rejection of the Union's bargaining request, it
is nevertheless necessary to examine this contention, since
there cannot be said to arise any obligation to bargain with
other than a duly authorized representative possessing valid
credentials. The "Todd cards" contention now raised goes
to the essence of the validity of the Union's bargaining
credentials.
Todd's testimony indicates that in his solicitation of the
union authorization cards of employees (perhaps as many
as about 20), he clearly and correctly explained to the
employees that the cards were for recognitional purposes.
However, according to his testimony, he also indicated to
them that "we intended to demand recognition from the
company . . . as soon as we got a strong majority of the
people signed up in the plant, which as far as we were
concerned would have to be at least 60 per cent" and that
"we intended to attempt to negotiate a contract with them
and if we were not successful in doing this that we would
probably file for an election.. . . if we were unsuccessful in
getting recognition, getting our demand met, that we would
probably file a petition at the Board, at the N.L.R.B., for an
election ." Although Todd testified that according to his
calculations the Union has achieved around 61% of
strength, on July 3, as has been demonstrated above, it had
attained only somewhat over 54% of strength. Under these
circumstances, Respondent now raises the additional
contention that the cards do not establish representational
status on the part of the Union.
After careful consideration of Respondent's contention
in this regard, I have concluded that I cannot agree with it,
for the following reasons: (1) The Act (Secs. 9(a) and
8(a)(5)) requires an employer to bargain collectively with
the designated representative of a majority of unit
employees. Since the Union here clearly fulfils that
requirement, under the circumstances shown Respondent
would appear to be in default of the requirement. There is
insufficient basis for inferring that the employees, whose
protection is the purpose of the Act, acted or intended to
waive the Act's protections or provisions, even if they could
in view of the paramount public interest. (2) In view of
Todd's clear explanation of the purpose of the card as
representational, his added remarks bear the character of
surplusage statements of intended union strategy, so to
speak, subject to modification as strategy invariably is. (3)
A reasonable contextual interpretation of Todd's remark
here singled out, is that he utilized "60%" as a mere
convenient round-figure example of a "strong" or
"definite" majority. However, it cannot be said as a matter
of law that the 54.2% attained by July 3 is also not "strong"
and "definite." (4) Todd's "60%" observation was not
promissory or conditional in nature, and it cannot be
regarded as creating an estoppel on the Union's part to act
for the protection of the employees in accordance with the
rights expressly secured to them by the Act. Todd did not
undertake not to use the cards unless the Union obtained
60%. (5) There is neither evidence nor evidentiary
suggestion that the employee signatories in question would
not have executed the cards but for Todd's "60%"
observation. G & A Truck Line, Inc. v. N.L.R.B., 407 F.2d
120, 122-23 (C.A. 6); McEwen Manufacturing Co., 172
NLRB No. 99; Levi Strauss & Co., 172 NLRB No. 57. (6)
The evidence overwhelmingly establishes that the employ-
ees understood the terms of the authorization cards which
they signed. Those terms are clear and unambiguous. (7)
There is neither evidence nor indication that any employee
limited the use of his card to a 60% majority contingency.
There is no suggestion in any testimony of any employee to
that effect. (8) Since actual, but at any rate not "decisive" (
Marie Phillips, Inc., 178 NLRB No. 53, misstatements to
employees as to already having a majority of cards signed
have been regarded as not vitiating the cards ( G & A Truck
Line, Inc., 168 NLRB No. 106), Todd's "60%" observation
here should a fortiori be so treated. (9) It is to be noted,
finally, that not a single employee has raised this
contention, which may at best be viewed as a matter
between the employees and the Union. On the contrary, it
is the Employer who now casts himself in the role of self-
appointed vindicator or protector of employees' supposed
best interests (when they coincide with his own). "In effect,
he [the employer] seeks to vindicate the rights of his
employees to select their bargaining representative. If the
employees are dissatisfied with their chosen union, they
may submit their own grievance to the Board. . . . The
underlying purpose of this statute is industrial peace. To
allow employers to rely on employees' rights in refusing to
bargain with the formally designated union is not
conducive to that end, it is inimical to it." Brooks v.
N.L.R.B., 348 U.S. 96, 103.
For the foregoing reasons, I reject Respondent's conten-
tion that Todd's "60%" observations negate the Union's
claim of representational status here and freed Respondent
from its statutory obligation to bargain with the Union.
It will be recalled that in refusing to recognize or bargain
with the Union, or even to look at its signed authorization
cards, Respondent had merely given as its reason that it
"doubts that your organization represents an uncoerced
majority of its employees in any appropriate unit."
As has been indicated, at the hearing Respondent
withdrew its denial of the appropriateness of the bargaining
unit, and no evidence whatsoever has been presented of
coercion of any employee.
It is clear from the Supreme Court's recent unanimous
pronouncement in N.L.R.B. v. Gissel Packing Co., 395 U.S.
575, that an employer's "good faith doubt" as to a Union's
representative status, being "largely irrelevant" (id at 594),
is no longer an answer to a refusal to bargain; at any rate
where, as here, "there is . . . interference with the election
processes" through "independent unfair labor practices
which tend to preclude the holding of a fair election" (id at
595).49
As has been shown, Respondent here engaged in a
massive program of unfair labor practices to prevent its
99 The full Supreme Court decision passage is: `Because the employers' unfair labor practices which tend to preclude the holding of a fair election,
refusal to bargain in each of these cases was accompanied by independent we need not decide whether a bargaining order is ever appropriate in cases
DIXISTEEL BUILDINGS, INC.
employees from bargaining collectively through the
bargaining representative designated in the unambiguous
representation cards which they had executed of their own
free will and choice.50 Respondent's actions here in totality
bespeak rejection of the collective bargaining principle
which is imbedded as a lodestone of national industrial
relations policy. The quantum, nature, and timing of
Respondent's manifold violations of Section 8(a)(1) alone
would justify such conclusion and require appropriate
remedy.
I find that on and since July 3, 1969, Respondent has
refused, and continues to refuse, to recognize, meet, or
bargain with the Union, notwithstanding the Union's
request and status on said date as the duly designated
collective-bargaining representative of a majority of
Respondent's employees in an appropriate collective-
bargaining unit ; that Respondent engaged in the unfair
labor practices found in " III B" and "III C," supra, in order
to undermine, dissipate, and destroy said majority repre-
sentational status of the Union; that by refusing to bargain
with the Union and by engaging in said unfair labor
practices with the aforesaid purposes, Respondent in
rejection of the collective-bargaining principle sought to
evade and avoid its collective-bargaining obligation under
the Act; and that for these reasons and upon the entire
record Respondent has violated Section 8(a)(5) and (1) of
the Act. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575.
IV. REPORT ON OBJECTIONS TO ELECTION
As indicated at the outset, there has been consolidated
with the unfair labor practices case (No. 14-CA-5227) a
related representation case (14-RC-6230), for the purpose
of hearing certain related issues in the representation case
arising out of the petitioning Union's objection filed therein
to the election which the Union, despite its 54% majority on
July 3, lost by a vote of 41 to 29 on September 9.51 In short,
where there is no interference with the election processes" (Gissel, supra at
595, emphasis supplied)
50 If, as Respondent claims, it "doubted" the Union's representative
status on July 3 for a variety of reasons, any such doubts, if bona fide,
could readily have been resolved by permitting the Board's secret election
processes to proceed without interference
Without having assigned any reason, prior to the hearing herein, for its
alleged "doubt" of the Union's representative status, Respondent now
advances a variety of "reasons " First, it states that two other unions had
failed in previous organizational attempts , neither of these unions had
made any recognitional request and the earlier cards were not only
superseded by those here, but they were destroyed. Respondent at no time
on or after July 3 made any attempt to ascertain the facts concerning its
employees' representational desires in a lawful manner, cf. Struksnes
Construction Co, 165 NLRB No 102, cited approvingly in Gissel, supra at
609 Moreover, a party's ipse dixit assertion that he has a "doubt" no more
establishes that in fact he has the doubt than his mere assertion of any
other alleged fact establishes that to be a fact See, e.g, Gissel, supra at 597
("bona fide dispute"), G & A Truck Line, Inc v NLRB, 407 F.2d 120,
123 (C A 6), International Union, UAW [Preston Products Corp] v
NLRB 392 F 2d 801, 808 (C A D C.), cert denied 392 U S 906, N L R B
v Southbridge Sheet Metal Works, 380 F 2d 851, 856 (C.A. 1) Furthermore,
Respondent's numerous unfair labor practices in the critical intervening
period between the Union's recognitional demand (July 3) and the Board
election (September 9), superadded to those before and its long-standing
determination to avoid collective bargaining, tend to throw into sharp
question the alleged fact of Respondent's professed "doubt" "In cases
such as this, where the employer's unfair labor practices are clearly
established, both before and after the demand for bargaining, the good
faith of his doubts of the union majority may properly be regarded with
425
the Union in such of its objections as have been referred
here for consideration, asserts that it lost the election
because of the Employer's reelection misconduct consisting
of those actions which form the subject of the complaint in
the unfair labor practices case here. Inasmuch as these have
already been extensively discussed and findings made in
relation thereto, no reiteration is here called for.
It is accordingly found, for reasons fully explicated supra,
that Union Objections 1, 2, and 9 (interrogation), 3, 4, and 5
(economic threats and assertions of futility of unionization
and collective bargaining), and 12 (assurances of economic
betterments in the event of rejection of the Union),52 dated
September 16, 1969, to the conduct of the election of
September 9, 1969, having been established to be meritori-
ous, should be sustained, and that that election should
accordingly be voided and set aside and its results annulled,
and I so recommend.53
Upon the foregoing findings and the entire record, I state
the following:
V. CONCLUSIONS OF LAW
1. At all material times, Dixisteel Buildings, Inc.,
Respondent herein, has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. At all material times, Local 93, Sheet Metal Workers
International Association, AFL-CIO, has been and is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By the conduct set forth in section "III B," "III C 1,"
and "III D," supra, which has been found to constitute
unfair labor practices, Respondent has interfered with,
restrained, and coerced its employees, and is interfering
with, restraining, and coercing its employees, in the exercise
of rights guaranteed to them by Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
some suspicion " N L R B v. Cumberland Shoe Corp, 351 F 2d 917, 921
(C.A 6) Respondent's unfair labor practices here are also consistent with
an absence of real doubt on its part and with a desire to utilize the
intervening period to dispel the union majority or at least to destroy the
conditions required by public interest for a fair and uncoerced election.
Under the circumstances here presented , I cannot accept Respondent's
insistence that it was justified in flatly rejecting the Union 's requests on
July 3 to meet with it and examine its written credentials , as a preliminary
to collective bargaining , simply because on two prior occasions two other
unions had obtained only a few authorization cards, and it desired a Board
election As emphasized by the Supreme Court, in Gissel, supra at 595-6600,
the Act does not require a Board-conducted election and certification as a
precondition to collective bargaining.
Si The Union petitioned for the election after Respondent's Plant
Manager Gross refused to see its representatives when they called on him
on July 3
52 No comment is made concerning the Regional Director's
recommendations concerning other Objections (i e., 6, 7, 8, 10, 11, and 13)
to the conduct of the election which have not been referred to the Trial
Examiner
13 The election-related conduct violative of Section 8(a)(1), as herein,
may be regarded as necessarily interfering with free and untrammeled
Board-conducted elections, see Industrial Steel Products Company, Inc, 143
NLRB 336, Playskool Manufacturing Co, 140 NLRB 1417, 1419; Dal-Tex
Optical Company, Inc., 137 NLRB 1782, 1786-87.
It is noted that at the trial Respondent withdrew the affirmative defense
pleaded in its answer as amended at the trial. The affirmative defense had
alleged that the conduct of the Union as well as of the bargaining unit
employees, in the preelection period interfered with a fair election, making
certification or a bargaining order inappropriate without another election.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By the conduct set forth in section "III C I," supra,
which has been found to constitute unfair labor practices,
Respondent has discriminated in regard to the hire, tenure,
and terms and conditions of employment of its employees,
thereby discouraging membership in a labor organization,
in violation of Section 8(a)(3) of the Act.
5. By the conduct set forth in Section "III D," supra,
which has been found to constitute unfair labor practices,
Respondnet has refused and is refusing to bargain
collectively with the duly designated representative of its
employees, in violation of Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. It has not been established by a fair preponderance of
the substantial credible evidence in this proceeding that
Respondent discharged 'Terry Coons from its employ, or
failed to reinstate or reemploy him, in violation of Section
8(a)(3) or (1) of the Act as alleged in the complaint herein.
VI. REMEDY
With regard to remedying the unfair labor practices
comprising the violations of Section 8(a)(1) and (3) which
have been found, I shall recommend the usual cease-and-
desist order and affirmative relief customarily ordered in
cases of this nature, involving interference, restraint, and
coercion and discriminatory treatment of employees. The
recommended Order in this aspect will include a provision
requiring Respondent to reimburse its employee Harry
Rouse for pay of which he was deprived by the described
unlawful 3-day suspension, together with interest, less
applicable net earnings, if any, all to be computed in the
manner prescribed by the Board in F. W. Woolworth Co., 90
NLRB 289, and Isis Plumbing & Heating Co., Inc., 138
NLRB 716; and Respondent shall be required to make
available necessary records for computation of backpay. In
view of the fact that the unfair labor practices here are so
numerous and are of a character striking at the main roots
of the Act and its intended guarantees, I shall include a
provision requiring Respondent to cease and desist from
any infringement on the rights secured by Section 7 of the
Act. The usual notice posting will also be recommended.
Concerning the Union's objections to the conduct of the
election held on September 9, 1969, in Case 14-RC-6230, in
order to implement my recommendations that those
objections be sustained to the extent indicated, I shall
recommend that that election be set aside and its results
annulled and, for reasons to be shown, that the petition
54 Thus, in A. 3. Krajewski Manufacturing Co., Inc., 180 NLRB No. 173,
involving the issue of whether a single violation of the Act, consisting of
the discharge of the employee Union leader during the preelection
period-comparable to the case of Rouse here-alone, without more,
justifies a bargaining order , the Board held that it did, stating:
Respondent contends, in its statement of position , that this discharge
was the result of a single isolated action and is insufficient to establish
a violation of Section 8(aX5) or to sustain a bargaining order . We find
no merit in this contention . It is a well-established fact that a
discriminatory discharge of an employee because of his union
affiliation goes to the very heart of the Act. Furthermore, the
discharge of the union leader , as here, serves as a warning to the
employees that the employer has the power to take action which
affects the employees ' livelihoods and that it is willing to implement
such power against union adherents . The implementation of such
power against the union ringleader is just as likely to accomplish the
therein be dismissed and all proceedings held thereunder be
vacated.
It remains to consider the appropriate remedy for
Respondent's violations of its bargaining obligations under
Section 8(a)(5) of the Act, in the conjoined frame of
reference or matrix of its massive violations-no less than
36 in number-of Section 8(axl) of the Act and its further
significant violation-discriminatory discipline of its
employees' organizational leader and "spearhead" on the
very day after he attended a Board preelection hearing-of
Section 8(a)(3) of the Act.
It has been found that the Union represented an
uncoerced majority of Respondent's employees in an
appropriate bargaining unit at the time of its request, on
July 3, for recognition and bargaining; that Respondent
out-of-hand refused to see or meet with, much less
recognize or bargain with, the Union then or at any time
since then; that Respondent did not in good faith refuse to
recognize or bargain with the Union, but rather because it
was motivated by its rejection of the collective-bargaining
principle and by its desire to gain time to undermine the
Union and dissipate its majority status; and that Respon-
dent thereafter engaged in extensive and flagrant violations
of Sections 8(axl) and (3) of the Act in order to carry out its
purpose of ousting the Union, which it thereby succeeded
in doing. It is not the purpose of a Board election to stamp
the Board's formal imprimatur of approval on an election
result brought about in this way. The total restraining and
coercive effect on the employees of Respondent's
"independent" violations of Section 8(a)(l)-27 of 36,
involving 13 of 18 separate incidents, occurring in the
critical 2-month period between the Union's recognitional
request (July 3) and the Board election (September 9)-and
the powerfully restraining and coercive impact of Respon-
dent's unlawful discriminatory suspension action against
union employee "spearhead" Rouse on the very day after
his return from the Board representation case hearing in St.
Louis (August 7), should not be minimized 54 It would be
difficult to imagine clearer warning signals than these,
considering their overall scope and continuing nature.
As has been shown, Respondent had no absolute right to
insist on an election under the circumstances shown, as a
precondition to meeting with the Union to establish its
credentials for bargaining purposes, and certainly no
shadow of a right to insist on a Board election in
order to utilize the interregnum for ousting the Union
through unlawful means . See N. L. R. B. v. Gissel Packing
Company, 395 U.S. 575. Having violated the law in both
destruction of employee support for unionization as would a greater
number of unfair labor practices which individually have a lessgr
impact.
In our opinion, a bargaining order is warranted on the facts of this
case. After rejecting the Union's bargaining demand, the Respondent
successfully used the time available before the election to undermine
the Union's majority by discriminatorily discharging Andreoli, the
leader of the Union 's organizational drive among the employees. It is
unlikely that the lingering coercive effect of this discriminatory
discharge could be neutralized by conventional remedies so as to
ensure a fair rerun election . We therefore find that the employee
sentiment expressed through the cards is a more reliable measure of
employee desires and that statutory policies are better effectuated by
issuing a bargaining order than directing a rerun election.
DIXISTEEL BUILDINGS, INC.
regards, Respondent should not now be permitted to retain
the fruits of its double wrong; nor should the declared
national policy favoring collective bargaining be derailed to
favor a party who has established the roadblocks.
Employers-even those, unlike Respondent, entertaining
good-faith doubt as to a bargaining representative's
credentials-who insist on a Board-conducted election
to resolve "doubts," should-again, unlike
Respondent-scrupulously refrain from interference with,
restraint, or coercion of their voting employees' rights
under the Act, in the necessary waiting period before the
Board election can be held. If, like Respondent, they do
not, they can in good conscience neither insist on the
Board's approval of the contaminated election results
which they have brought about, nor as of right demand
another election (or elections) at some indeterminate future
time when the consequences of their unlawful actions have
hopefully been forgotten or dimmed (which in some cases
they never are). Although the Board normally favors
elections as a preferred instrumentality for determining
employees' representation desires, where an employer has
by his own actions rendered that machinery unworkable,
the less ideal measure of "card strength" may be resorted to
as the only feasible alternative, considering all factors
including time. In N. L. R. B. v. Gissel Packing Company, 395
U.S. 575, the Supreme Court indicated that the Board may
on the basis of an 8(a)(5) or (1) violation issue a bargaining
order based on union authorization cards where "the
possibility of erasing the effects of [the] past practices and
ensuring a fair election (or a fair rerun) by the use of
traditional remedies . . . is slight and that employee
sentiment once expressed through cards would, on balance,
be better protected by a bargaining order (395 U.S.
at 614-15).
In this case, the quantitative massiveness and the
qualitative nature of the unfair labor practices committed
by Respondent, reflected against the spectrum of the small
community, observed factory worker level, and time factors
involved, persuade me that Respondent's violations would
tend to leave lasting scars with lingering coercive effects on
the employees and that they are in the aggregate of so
substantial a nature as to preclude the holding of a fair and
free election in the reasonably foreseeable future. I find that
under the circumstances shown there is "insufficient
indication that a . . . [rerun] election would definitely be a
more reliable test of the employees' desires than the card
count taken before the unfair labor practices occurred."
N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 616. For
these reasons I have concluded that the desires of
Respondent's employees, as expressed by the valid
authorization cards signed by a majority of the employees
in the unit, can be better protected, and statutory policies
effectuated, by the issuance of a bargaining order, and I
shall accordingly so recommend. N.L.R.B. v. Gissel Packing
Company, supra. See also, e.g.: N.L.R.B. v. Wylie Manufac-
turing Company, 417 F.2d 192 (C.A. 10), cert. denied 397
U.S. 913; International Union, UAW v. N.L.R.B. (Preston
Products Corp.), 392 F.2d 801 (C.A.D.C.), cert. denied 392
55 That any possible subsequent loss of union majority, under the
demonstrated circumstances, would not render inappropriate a bargaining
order, see N L R B v Gissel Packing Company, 395 U.S 575, 610, N L R.B
427
U.S. 906; Hecks, Inc., 181 NLRB No. 129; Transport, Inc. of
South Dakota et al., 181 NLRB No. 69; Mink-Dayton, Inc.,
181 NLRB No. 40; A. J. Krajewski Manufacturing Co., Inc.,
180 NLRB No. 173; Louisburg Sportswear Co., 180 NLRB
No. 114 and 173 NLRB No. 101; Noll Motors, Inc., 180
NLRB No. 60; Chris Christou, d/b/a Solvay Baking Co.,
180 NLRB No. 25; General Steel Products, Inc., 180 NLRB
No. 8; American Cable Systems, Inc., 179 NLRB No. 149;
U-Tote M of Oklahoma, 179 NLRB No. 141; International
Harvester Co., 179 NLRB No. 124; Renner Plumbing, etc.,
179 NLRB No. 103.55
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
consolidated proceeding, and pursuant to Section 10(c) of
the Act, I hereby make the following:
RECOMMENDED ORDER
Dixisteel Building, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
a. Directly or indirectly interrogating any employee
with respect to his or other employees' union affiliations,
desires, sympathies, or activities, so as to interfere with,
restrain, or coerce him or them in the exercise of the right of
self-organization, the right to bargain collectively, or any
other right secured by the National Labor Relations Act, as
amended.
b. Directly or indirectly threatening to refuse to
bargain, or to refrain from bargaining, in good faith with
any duly designated representative of its employees; or
directly or indirectly indicating that such collective
bargaining, or employees' exercise of their right to bargain
collectively, will be futile and of no avail.
c. Directly or indirectly promising, assuring, or holding
out in prospect to any employee any wage increase,
economic betterment, or other benefit or thing of value
conditioned on his withdrawal from or rejection of, or in
order to induce him or other employee to refrain from,
union membership, affiliation, sympathy, support, assist-
ance, or activity.
d. Directly or indirectly threatening any employee with
discharge, loss of employment, layoff, economic or other
loss, harm, detriment, or reprisal to himself or other
employee for exercising or attempting to exercise his right
to join or assist a labor organization, his right to bargain
collectively, or any other right secured by the National
Labor Relations Act, as amended.
e. Discouraging membership in or lawful activities on
behalf of Local 93, Sheet Metal Workers International
Association, AFL-CIO, or any other labor organization of
Respondent's employees, by suspending, laying off,
discharging, or failing or refusing to permit to work for pay,
or to reinstate or rehire, or by threatening to do so, any
employee because of his union membership or activities or
because of his exercise of any other right under the
National Labor Relations Act, as amended; or by
otherwise discriminating or threatening to discriminate
against any employee in regard to hire or tenure of
v Katz, 369 U S 736, 748 fn. 16, N LR B. v P Lorillard Company, 314
U.S. 512, New Alaska Development Corp, 180 NLRB No 150, American
Cable Systems, Inc, 179 NLRB No 149 fn 3
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment or any term or condition of employment
because of his union sentiments or activities or his exercise
of any right under the Act.
f. Failing or refusing to bargain collectively with Local
93, Sheet Metal Workers International Association,
AFL-CIO, as the exclusive bargaining representative of the
employees in the following unit:
All production and maintenance employees, excluding
office clerical and professional employees, temporary
summer help, guards and supervisors, employed by
Dixisteel Building, Inc., at its plant, factory, or premises
in Hannibal, Missouri.
g. In any other manner interfering with, restraining, or
coercing employees in the exercise of their right of self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of their
own choosing;, 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.
2. Take the following affirmative actions which are
necessary to effectuate the policies of the Act:
a. Make Harry Rouse whole, in the manner set forth in
the "Remedy" portion of this decision, for any loss of pay
suffered by him as the result of Respondent's unlawful 3-
day suspension of Rouse on August 8, 9, and 11, 1969;
expunge from its records any reference to said suspension
as involving any fault on the part of Rouse; restore Rouse
to his full seniority and other rights, privileges, and
perquisites as if said suspension had never taken place; and
preserve and,. upon request, make available to the Board
and its agents, for examination and copying, all payroll
records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due hereunder.
b. Upon request, bargain collectively in good faith with
Local 93, Sheet Metal Workers International Association,
AFL-CIO, as the exclusive bargaining representative of
Respondent's employees in the unit found appropriate with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and embody in
a signed agreement any understanding reached.
c. Post in its plant in Hannibal, Missouri, copies of the
notice attached hereto marked "Appendix." 56 Copies of
said notice, on forms provided by the Regional Director for
Region 14 shall, after being signed by Respondent's
authorized representative, be posted by Respondent
immediately upon receipt thereof and 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
insure that said notices are not altered, defaced, or covered
by any other material.
d. Notify said Regional Director, in writing, within 20
days from receipt of this Decision and Recommended
Order, as to what steps have been taken to comply
therewith.
IT IS FURTHER RECOMMENDED that the complaint in Case
14-CA-5227 be and the same is hereby dismissed as to all
violations alleged but not herein found; and that the
Union's objections dated September 16, 1969, to the
election of September 9, 1969, in Case 14-RC-6230 be
sustained to the extent indicated in the findings made in the
foregoing decision , that the election therein be set adide
and the results annulled, and that the Petition for
Certification of Representatives filed by the Petitioner in
said case be dismissed and all proceedings held thereunder
be vacated.57
56 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its finding , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted By Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
57 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, as to what steps have
been taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to present
evidence and arguments, the decision is that Dixisteel
Buildings, Inc., has violated the National Labor Relations
Act, and we have therefore been ordered to post this notice.
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of your own choosing
To act together with other employees to
bargain collectively or for other mutual aid or
protection; and
If you wish, not to do any of these things.
ACCORDINGLY, WE GIVE YOU THESE ASSUR-
ANCES:
WE WILL respect all of your rights under the National
Labor Relations Act.
WE WILL pay Harry Rouse for any pay that he lost
when we suspended him on August 8-11, 1969; and we
will add interest thereto and correct our records so that
it is clear the suspension was due to no misconduct,
fault, or blame on his part.
WE WILL NOT in any way in violation of the National
Labor Relations Act discriminate or threaten to
discriminate or retaliate against any employee because
he belongs to or helps any union, or because he asks
other employees to join a union, or because he wants a
union to represent him in collective bargaining, or
because he exercises or tries to exercise any other right
under the National Labor Relations Act.
WE WILL NOT in violation of the National Labor
Relations Act discourage membership in, or lawful
support or activities in behalf of, Local 93, Sheet Metal
Workers International Association, AFL-CIO, or any
DIXISTEEL BUILDINGS, INC. 429
other labor organization of our employees or which our
employees may wish to join, support, or help.
WE WILL NOT in violation of the National Labor
Relations
WE WILL NOT in violation of the National Labor
Relations Act interrogate any employee concerning his
or any other employee's union membership, views,
sympathies , or activities.
WE WILL NOT in violation of the National Labor
Relations Act refuse or threaten to refuse to bargain in
good faith with your duly designated collective-bargain-
ing representative ; AND WE WILL NOT in violation of the
Act threaten or indicate that collective bargaining
would be futile or do you no good.
WE WILL NOT in violation of the National Labor
Relations Act promise, assure , or hold out the prospect
to you of any wage increase , work improvement, or
other benefit of value if you do not join or if you
withdraw from of if you do not support a union or if
you stop exercising or trying to exercise any right you
have under the National Labor Relations Act.
WE WILL NOT threaten you with loss of employment,
discharge, layoff, loss of overtime, discontinuance of
the practice of shifting employees to other job
assignments in case the plant is slow, or any other
economic loss, harm, detriment , or reprisal, for
exercising of trying to exercise your right to join or
assist a union or to bargain collectively or any other
right under the National Labor Relations Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of your right of
self-organization ; to form, join , or assist any labor
organization; to bargain collectively through represent-
atives of your own choosing; to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection; or to refrain from any
and all such activities.
WE WILL, upon request, bargain collectively in good
faith with Local 93, Sheet Metal Workers International
Association, AFL-CIO, as the exclusive bargaining
representative of our employees in the following
appropriate collective bargaining unit, with regard to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and sign any
agreement reached:
All production and maintenance employees,
excluding office clerical and professional employ-
ees, temporary summer help, guards and supervi-
sor, employed by us at our plant, factory, or
premises in Hannibal , Missouri.
All of you are freelto join or not to join Local 93, Sheet
Metal Workers International Association, AFL-CIO, or
any other union, as you see fit, without any interference,
restraint, or coercion from us in any way, shape, or form.
Dated By
DIXISTEEL BUILDINGS, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1040
Boatmen's Bank Building, 314 North Broadway, St. Louis,
Missouri 63102, Telephone 314-622-4167.