Glass Fiber Moulding Co.

National Labor Relations Board - Board Decisions

Apr 27, 1953

104 N.L.R.B. 383 (N.L.R.B. 1953)

GLASS FIBER MOULDING COMPANY 383
4. The Respondent shall pay to the appropriate Federal and/or State agencies, to the
credit of Bartoletta and the Union, a sum of money equal to that which would have been
deposited to the credit of the Union and Bartoletta on account of social -security or other
similar benefits during the above -mentioned period . Pen and Pencil Workers Union, 91
NLRB 883.
5. The Respondent shall make Bartoletta whole for any loss of wages which he would
have earned as an employee of the Respondent from the date of the discontinuance of the
checkweighman ' s job in February 1952 to the date of the Respondent ' s offer of reinstate-
ment referred to in "2" above, less his net earnings during that period.
6. The Respondent shall cease and desist from discharging or preventing employment of
Bartoletta or any other individual as union checkweighman , because he has engaged In union
or concerted activity protected by the Act; from preventing the performance of the duties
of such position ; from refusing access to its property for such purpose ; and from refusing
employees their choice of union checkweighman ; or from engaging in any like or related
acts.
Upon the basis of the foregoing findings and conclusions and upon the entire record in the
case , I make the following
CONCLUSIONS OF LAW
1. Local Union No. 9769 , United Mine Workers of America, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discharging John Bartoletta and refusing him access to its property to perform his
duties as union chehkweighman , preventing the performance of those duties , and causing
Bartoletta 's loss of employment as union checkweighman , and depriving employees of their
choice of union checkweighman , under the circumstances heretofore recited, the Respondent
engaged in unfair labor practices within the meaning of Section 8 (a) (1) and 8 ( a) (3) of the
Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. ]
GLASS FIBER MOULDING COMPANY AND AURCOLO MANU-
FACTURING COMPANY and AMERICAN FEDERATION
OF LABOR. Case No. 30 -CA-196. April 27, 1953
DECISION AND ORDER
On September 10, 1952, Trial Examiner Herman Marx issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondents had engaged in and were engaging
in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. He also set forth the applicable evidence and the
reasons on which he based his dismissal from the bench, at the
close of the General Counsel ' s case , of the allegations of the
complaint that the Respondents had refused to bargain in vio-
lation of Section 8 (a) (5) of the Act. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings, conclusions,
104 NLRB No. 58.
3 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommendations of the Trial Examiner, with the following
additions and modifications.
1. We agree with the Trial Examiner's dismissal of the
allegations of the complaint that the Respondents refused to
bargain in violation of Section 8 (a) (5) of the Act.
On September 12, 1951, the Union requested recognition,' and
also filed a representation petition. The Respondents did not
reply to the request for recognition, but met with the Union
on September 21, 24, and 25. At these meetings, the Union
demanded only that the Respondents agree to a consent elec-
tion. The parties negotiated, and on September 25 the Re-
spondents agreed to the Union's proposal fora consent election,
thereby receding from its own counterproposal for a "stipu-
lation form" election, in exchange for the Union's agreement
to the Respondents' proposal that a local of the Union be placed
on the ballot in the election.' Between September 25 and October
5, the date of the election, the Respondents, as we find herein,
violated Section 8 (a) (1) of the Act, and discriminatorily
discharged one of their employees.
We have held that an employer unlawfully refuses to bargain
if its insistence on a Board election as proof of the union's
majority is motivated by a rejection of the collective-bargain-
ing principle or by a desire to gain time within which to under-
mine the union, and that unfair labor practices committed by
the employer during the preelection period may be evidence
of such motivation' We have even applied this principle in a
case where the employer simply ignored the union's request
for recognition.4 An essential element in these cases has been
that the employer, either directly or indirectly, has compelled
the union to go to an election, so that the employer may gain
time within which to undermine the union. This essential ele-
ment is absent in this case. Here the Respondents met with the
Union shortly after receiving the Union's request for recogni-
tion, and acceded to the Union's demand fora consent election,
which was the only demand made by the Union. Under such
circumstances, it cannot be said that the Respondents, despite
the subsequent unfair labor practices committed by them,
were seeking time within which to undermine the Union, so as
to have unlawfully refused to bargains Contrary to the assertion
of our dissenting colleagues, we are convinced that this deci-
sion, which is confined to the particular facts of this case,
will not discourage resort by unions to Board representation
proceedings, nor will it encourage them to file unfair labor
practice charges at the outset instead.
1 This request was received on the following day.
2 The local was completely established, except for obtaining a "federal charter" from the
Union.
SJoy Silk Mills , Inc. v . N. L. R. B., 185 F. 2d 732, enforcing as modified 85 NLRB 1263;
341 U. S. 914, cert. denied.
4Howell Chevrolet Company, 95 NLRB 410.
SAccordingly, we find it unnecessary to, and do not, pass upon the Trial Examiner's con-
clusion that there was no refusal to bargain for the additional reason that the effect of the
agreement for a consent election , with its provision for placing the local of the Union on the
ballot, was an abandonment by the Union of its prior demand for recognition.
GLASS FIBER MOULDING COMPANY 385
We do not agree, however, with-the Trial Examiner's con-
clusion that there was no refusal to bargain because a majority
of the employees did not effectively designate the Union as
their bargaining agent. The Trial Examiner bases this con-
clusion on the fact that in the case of 18 employees, the only
evidence of designation of the Union lies in authorization cards
signed by them, and 16 of these employees did not insert the
name of a bargaining agent in the space provided therefor on
the cards.' However, there is printed vertically on either side
of the cards the letters "A. F. of L.," and these letters are in
boldface type approximately 4 times the size of the printed
lines following them. In our opinion, these letters clearly
indicate that the cards were intended to designate the
"A. F. of L." as bargaining representative, and were so
construed by the signers so as to render any further desig-
nation of the "A. F. of L." superfluous. Moreover, at the
time the cards were signed no other union was attempting to
organize the Respondents' employees, and the cards were in
the possession of the Union. In view of the foregoing, we believe
that the 16 employees in question did effectively designate the
Union as their bargaining representative, and accordingly that
a majority of the employees did so designate the Union.
2. The Trial Examiner found that the Respondents violated
Section 8 (a) (1) of the Act as a consequence, inter alia, of
President Loerke's expressed preference for a company
union, and his intimation that the way to secure an increase was
by abandoning unionization. However, as pointed out by the
Respondents, this conduct was not encompassed by the bill of
particulars that the General Counsel furnished the Respondents
as to the alleged violations of Section 8 (a) (1) on which the
General Counsel intended to rely, and to which the Trial
Examiner stated he would hold the General Counsel. Under
such circumstances, these findings of the Trial Examiner
were not appropriate, and we do not adopt them.
ORDER
U on the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Glass Fiber Moulding
Company and Aurcolo Manufacturing Company of Denver,
Colorado, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the American Federation of
Labor, or any other labor organization, by discriminating in
any manner in regard to the hire, tenure of employment, or
any term or condition of employment, of their employees.
(b) Threatening to increase the workload of their employees
if they formed, joined, or assisted any labor organization.
(c) Interrogating any of their employees concerning their
voting intentions with respect to any election conducted by the
6 There are 23 designations relied on for a majority in a unit of 32 employees . The Trial
Examiner found proper card designation and/or "background" evidence to support effective
designation by the other 7 employees relied on for a majority.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board; concerning their attendance at meetings of any labor
organization ; whether they had been invited to attend such
meetings or vote for officers of any such organization;
whether they had voted at such meetings or otherwise parti-
cipated in such organization; or concerning their reasons for
forming, joining, or assisting a labor organization.
(d) Requesting or requiring any of their employees to identify
themselves as members or officers of any labor organization.
(e) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their right to self-
organization, to join or assist the American Federation of
Labor, to form, join, or assist any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer to Harry H. Darr and Clara P. Ferrill, according
to the terms and under the conditions set forth in section V
of the Intermediate Report entitled "The remedy," immediate
and full reinstatement to their respective former or sub-
s cantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges, and jointly and severally
make them whole in the manner prescribed in said section V.
(b) Post at their plant in Denver, Colorado, copies of the
notice attached hereto marked "Appendix A."' Copies of such
notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being duly signed by the Respondents'
representative, be posted by the Respondents immediately upon
receipt thereof and be maintained by them for sixty (60)
consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to insure
that the said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Seventeenth Region
in writing within ten (10) days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not herein found.
Members Houston and Styles, dissenting in part:
We cannot agree with that portion of our colleagues' deci-
sion which upholds the Trial Examiner's dismissal during the
hearing of the 8 (a) (5) allegation of the complaint on the
ground that the General Counsel did not make out a prima
7 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
GLASS FIBER MOULDING COMPANY 387
facie case . Our colleagues reason that because the Respondents
agreed to the Union's demand for a consent election and the .
Union did not expressly renew its prior unanswered request
for recognition, "it cannot be said that the Respondents,
despite the subsequent unfair labor practices committed by
them, were seeking time within which to undermine the Union,
so as to have unlawfully refused to bargain." Thus, the mere
fortuity that the Union advanced the consent-election proposal
becomes for our colleagues the basis for absolving the
Respondents of their unlawful efforts to liquidate the Union's
majority so as to evade the statutory duty to bargain. With
this startling proposition, the implications of which go far
toward upsetting well-established Board doctrine approved by
the courts, we cannot concur.
Correctly stated, the fact that an employer declines to bar-
gain but agrees to a consent election may, in proper circum-
stances, indicate an acceptance of the principle of collective
bargaining.I That is not the rule, however, where, as here, the
Employer's unfair labor practices, by their character and tim-
ing, demonstrate that in agreeing to a consent election, the
Employer was motivated not by an honest doubt as to the
Union's majority but. rather by adesire to gain time in which to
undermine that majority and render the election a nullity.9 In
these circumstances, it matters not whether the consent election
is requested by the union or the employer. In either case, the
Board has repeatedly held that an employer's reliance on a
consent election or a petition filed by a union is no defense to
a refusal to bargain. 10 It is therefore in the light of the applica-
ble decisional law that we turn to the General Counsel's
evidence.
On September 12, 1951, the Union informed the Respondents
by letter that it represented a majority of the 32 production and
maintenance employees and requested a meeting "at the
earliest possible time" to "enter into negotiations concerning
0Cf. for example, Roanoke Public Warehouse , 72 NLRB 1281, where the employer offered
to join in a consent election which the union rejected and the unfair labor practices consisting
of two antiunion remarks by supervisors antedated the request to bargain; Chamberlain Corpo-
ration, 75 NLRB 1188, where the employer insisted on a Board certification and the unfair
labor practices consisting of coercive statements by a supervisor antedated the request to
bargain and the supervisor was reprimanded by the employer. In both cases the Board found
no refusal to bargain.
9Joy Silk Mills , Inc., 85 NLRB 1263, enfd. as mod . 185 F. 2d 732 (C. A. D. C.), cert. den.
341 U. S. 914; N. L. R. B. v. Ken Rose Motors , Inc., 193 F . 2d 769 (C. A. 1); N. L. R. B.
v. Inter -City Advertising Co , 190 F. 2d 420 (C. A. 4); N. L. R. B. v Everett Van Kleeck and
Company, Inc., 189 F. 2d 516 (C. A. 2); Dismuke Tire and Rubber Company, Inc., 93 NLRB477.
10See, Inter-City Advertising Co., supr in which the Board and the court held that the
fact that a petition has been filed by the union and the employer makes no reply thereto,
furnishes no defense to the refusal to bargain by the employer in the face of concurrent un-
fair labor practices . See also the remaining cases cited in\footnote 2. supra ; also The Cuffman
Lumber Company , Inc., 82 NLRB 296, where the employer orally agreed to the union's sug-
gestion for a consent election and then resorted to unfair labor practices ; Louisville Con-
tainer Corporation , 99 NLRB 81, where the employer failed to answer the union 's bargaining
request, committed unfair labor practices , and then agreed to a consent election ; Rehrig-
Pacific Company, 99 NLRB 163, where the employer asked the union for a Board election and
subsequently agreed to a consent election but inthe interim committed unfair labor practices.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, hours , and conditions."" On the same day the Union
filed a petition. The Respondents never replied to the request
for recognition but, on September 21, 24, and 25, met.with the
Union and a Board field examiner. At these meetings the Union
did not expressly renew its demand for bargaining but pro-
posed a consent-election agreement and the Respondents
countered with a "stip form" election. On September 25, the
Respondents agreed to a consent election in exchange for the
Union's agreement to the Respondents' proposal that the local
union, which had been established at the plant but not yet
chartered, be placed on the ballot instead of the parent organiza-
tion." Between September 25 and October 3, the date of the
election, the Respondents committed unfair labor practices.
Thus, on September 27, a leader of the Union was discrimi-
natorily discharged; on October 2, the Respondents' president
assembled the employees and inquired of a number of individuals
whether they had been invited to attend the Union's meeting
and had voted for its officers and requested that employees
"stand up and identify themselves" as officers of the Union; and
on October 3, about 45 minutes before the election, the Re-
spondents' president again assembled the employees and de-
livered a speech in which he threatened to increase the em-
ployees' workload in the event of unionization of the plant.''
We are unable to agree with the implicit finding of the
majority that the Union abandoned its claim for recognition
and a contract because it did not renew its request at the
September meetings. It is clear from the sequence of events
that the Union construed the Respondents' failure to reply
as a rejection of its request for recognition and consequently
endeavored to prove its majority by the most expeditious
method available under the circumstances, i. e., a consent
election. Thus, contrary to the view of our colleagues, it was
the Respondents and not the Union who compelled resort to a
Board election. Indeed, we should have thought that the failure
of the Respondents to reply to the Union's bargaining request
would detract from, rather than add to, the Respondents' good
faith in agreeing to the consent election.14 That the Union did
not emphasize the obvious by repeating its demand for bargain-
ing, a demand which it never withdrew and, in any realistic
appraisal of the events, implicitly continued in the seeking of a
consent election, does not, in our opinion, throw the Union out
of court. Clearly, in the light of the Respondents' unfair labor
11 The Union, in fact, represented amajority ofthe Respondents ' employees in an appropriate
unit.
12 The majority styles the consent agreement as "negotiated." However , the recognition
required by Section 9 (a) of the Act is not a bargaining matter and the Respondents were
dutybound to reply to the Union's request for a consent election. Consolidated Frame Company,
91 NLRB 1295.
isOn the same day a foreman interrogated an employee as to her voting intentions.
14Cf. Model Mill Company, Inc., 103 NLRB 1527; Drummond Implement Corporation, 102
NLRB 596; Ken Rose Motors, Inc., supra; Howell Chevrolet Company, 95 NLRB 410, enfd.
204 F. 2d 79 (C. A. 9).
GLASS FIBER MOULDING COMPANY 389
practices which followed close upon the consent agreement, a
restatement by the Union of its bargaining demand, would have
been a futile act. Manifestly, the unlawful discharge of a union
leader, the mass interrogation, the threat of economic reprisal
made to assembled employees shortly before the election, stamp
the Respondents' acquiescence in the consent agreement and
their failure to reply to the Union's bargaining demand as but a
sham behind which to dissipate the Union's majority and make a
free election impossible. As the court held in the Joy Silk Mills
case,
Certainly it is not one of the purposes of the election
provisions to supply an employer with a procedural device
by which he may secure the time necessary to defeat efforts
toward organization being made by a union. is
In view of the foregoing, unlike our colleagues, we are unable
to perceive in the current posture of the case that at any time
material herein the Respondents entertained a good-faith doubt
of the Union's majority.
Furthermore, we are convinced that the decision of our
colleagues will discourage resort by unions to Board repre-
sentation proceedings in an effort to expedite proof of majority
in the face of employer rejection of a request for voluntary
recognition and will, instead, encourage them to file unfair
labor practice charges at the outset. In this manner the major-
ity decision stultifies free collective bargaining and imposes
a wholely unwarranted burden on the Board's processes.
Accordingly, we are of the opinion that the General Counsel
has proved a prima facie case that the Respondents on and after
September 13, 1952, refused to bargain with the Union. We
would therefore remand this proceeding to the Trial Examiner
for the purpose of conducting further hearing on the allegation
of a violation of Section 8 (a) (5).
t5Supra, at p. 741.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership of our employees
in the American Federation of Labor, or any other labor
organization , by discriminating in any manner in regard to
their hire , tenure of employment , or any term or condition
of employment.
WE WILL NOT threaten to increase the workload of our
employees if they form, join , or assist any labor organiza-
tion.
283230 0 - 54 - 26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate any of our employees con-
cerning their voting intentions in any election conducted by
the Board; concerning their attendance at meetings of any
labor organization; whether they had been invited to attend
such meetings or vote for officers of any such organization;
whether they had voted at such meetings or otherwise
participated in any such organization; or concerning their
reasons for forming, joining , or assisting a labor organiza-
tion.
WE WILL NOT request or require any of our employees
to identify themselves as members or officers of any labor
organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to join or assist the
American Federation of Labor, to form, join, or assist
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, and to refrain
from any or all such activities, except to the extent
that such right may be affected by an agreement re-
quiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3)
of the Act.
WE WILL offer to Harry H. Darr and Clara P. Ferrill
immediate and full reinstatement to their respective former
or substantially equivalent positions without prejudice to
their seniority or other rights and privileges previously
enjoyed, and jointly and severally make them whole for any
loss of pay suffered as a result of the discrimination
against them.
All our employees are free to become or remain, or to re-
frain from becoming or remaining, members of any labor
organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
Glass Fiber Moulding Company,
Employer.
By ... . .. ................. .... .............. ... .. . . ..
(Representative ) (Title)
Aurcolo Manufacturing Company,
Employer.
Dated . ............... By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered , defaced , or covered by any
other material.
GLASS FIBER MOULDING COMPANY
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
391
On September 13, 1951, the American Federation of Labor ( referred to herein as the A. F.
of L.) filed a charge with the National Labor Relations Board (also designated below as the
Board). Various amendments to the charge were thereafter filed by the A. F. of L. Based
upon the charge and amendments thereto, the General Counsel of the Board , on March 21, 1952,
issued a complaint alleging that Glass Fiber Moulding Company and Aurcolo Manufacturing
Company,' herein called the Respondents , 2 had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of the National Labor Relations Act (61 Stat.
136-163), referred to herein as the Act . A copy of the charge has been duly served upon Glass
Fiber . Both Respondents have been duly served with copies of the amendments to the charge,
and of the complaint.
The complaint , in material substance , alleges that the Respondents are engaged in inter-
state commerce within the meaning of the Act ; that both concerns engage in an "integrated"
manufacturing enterprise , that the A. F. of L . was on September 13, 1951 , and has been since
that date the exclusive , collective - bargaining representative of an appropriate unit of persons
employed by the Respondents , that , although requested to do so by the A. F. of L., the
Respondents , in violation of Section 8 (a) (1) and 8 (a) (5) of the Act, have refused to bargain
collectively with the A . F. of L. as the representative of the said unit, that the Respondents
violated Section 8 (a) (1) and 8 (a) (3) by discriminatorily discharging an employee , Harry H.
Darr , on September 26, 1951 , and another named Clara P Ferrill on November 5, 1951,
because the two employees "had joined or assisted " the A. F. of L or had exercised other
rights guaranteed to them by the Act ; and that the Respondents , also in violation of Section
8 (a) (1), "have expressed disapproval of the (A. F. of L) have interrogated their employees
concerning their union affiliations , (and) have urged , persuaded , threatened , and warned their
employees to refrain from assisting , becoming members of , or remaining members of the
(A. F. of L )."
The Respondents filed a joint answer in which they admit the jurisdictional averments of
the complaint applicable to Glass Fiber Moulding Company, and that Darr was discharged, but
deny the remaining allegations . The answer also affirmatively alleges that on and after Sep-
tember 25, 1952 , the A. F. of L "elected not to and has declined to act as collective bar-
gaining representative" of the Respondents ' employees ; that the A . F. of L: is "ineligible"
to represent the employees ; that the sole subject of negotiations between the A. F. of L and
the Respondents was the holding of a consent election , that an agreement was reached for
such an election and provided that the A . F. of L . should not appear on the ballot; that the
election was held and its results are "final"; and that the A. F. of L. "has ratified , approved
and adopted the election and all prior and subsequent proceedings affecting the election "
Pursuant to notice duly served upon all parties , a hearing was held before me, as duly
designated Trial Examiner , at Denver , Colorado , on April 15 , 16, and 17, 1952.9 The General
Counsel and the Respondents were represented by counsel , and the A. F. of L by one of its
representatives . All parties participtated in the hearing and were afforded a full opportunity
to be heard, examine and cross - examine witnesses , adduce evidence , submit oral argument,
and file briefs. Before any testimony was presented , the Respondents moved to dismiss
paragraph 13 of the complaint (allegations of interference, restraint , and coercion) as
"vague, unintelligible , and uncertain ," or in the alternative for a bill of particulars.4 The
motion to dismiss was denied , but with respect to much of the allegations of paragraph 13,
the General Counsel was directed to furnish the Respondents with a bill of particulars which
need not be detailed here. The General Counsel complied with the order . The Respondents
then moved again to dismiss paragraph 13 as particularized by the bill . The motion was
denied. The Respondents moved to segregate all witnesses "other than the parties and their
representatives ." The motion was granted with the exception of the two alleged dischargees.
i The pleadings have been amended to substitute the name "Aurcolo Manufacturing Company"
for "Arcolo Manufacturing Company" wherever the latter name appears.
2 The Respondents will also be referred to respectively as Glass Fiber and Aurcolo.
3The transcript contains a substantial number of errors . Among them are references to
the Trial Examiner as "Denious " ( the name of Respondents ' counsel). As the significant
aspects of the evidence , in the light of the whole record , are not affected by the errors, I
deem it unnecessary to enter an order correcting the record.
4 Actually, the alternative portion of the motion was that "the General Counsel be required
to amend " the relevant paragraph to set forth the Respondents ' alleged "acts or omissions."
I construed that portion of the motion as a demand for a bill of particulars.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents moved to dismiss all of the complaint , as well as particular portions thereof,
at the close of the General Counsel's case-in-chief. The allegations that the Respondents
refused to bargain were dismissed . The motion was denied in all other respects . For reasons
which will appear , additional reference to the dismissal will be made below . After the close
of all the evidence , the Respondents moved to dismiss the remaining allegations of the
complaint . Decision was reserved on the motion . The findings of fact and conclusions of law
set forth below in sections III and V. respectively , dispose of the motion . The parties
waived oral argument upon the evidence . The General Counsel and the Respondents have
filed briefs which have been read and considered . The A. F. of L . has not filed a brief.
In his brief, the General Counsels urges that "the record (be) reopened for completion of
this portion of the case" (the allegations that the Respondents refused to bargain). What
the General Counsel apparently seeks is an order vacating the dismissal on the ground that
the ruling was erroneous . I have thus construed the General Counsel' s request as a motion
to vacate the dismissal . So construed , the motion is denied for reasons which will appear
below.
The General Counsel ' s brief also requests " specific findings" with respect to "the
effect" of certain evidence upon which the dismissal was based . I asume that what the General
Counsel seeks by his request for "specific findings " are not findings of fact, but rather a
statement of the legal reasons or conclusions underlying the dismissal . The basis for, the
ruling were stated , at least in substantial degree, at the hearing and are reflected in the
record , and it would appear that no restatement is essential . However, as the ruling was
made extemporaneously and' is interwoven with an extended discussion with counsel, I
think that a restatement here will facilitate an understanding of the reasons for dismissal
and any review of the ruling the parties may seek . To that end , some summary of the ap-
plicable evidence adduced during the General Counsel 's case- in-chief is appropriate as a
preface to a restatement of the conclusions supporting the ruling. A summary of pertinent
evidence presented during the General Counsel ' s case-in-chief follows.
The Respondents are corporate manufacturing enterprises. They are housed in adjacent
portions of the same building , have common officers and stockholders , and their operations
are directed by the person who is president of both corporations . As will appear in findings
of fact to be made elsewhere in this report, Aurcolo's operations have primarily served, and
been ancillary to. the business and production processes of Glass Fiber.
On September 13, 1951 . Glass Fiber received a letter from John W. Tucker, a field
representative of the Colorado State Federation of Labor (referred to below as the State
Federation), who also functions as an organizer for the A. F. of L., with which the State
Federation is affiliated . The letter, dated September 12, 1951, written on the stationery
of the State Federation , signed by Tucker as "Field Representative ," and addressed to
Glass Fiber , states that the A. F. of L . represents "over twenty -five of your employees"
and requests a meeting "at the earliest possible time" in order to "enter into negotiations
concerning wages, hours , and conditions."
At the time of the bargaining request , there were 27 production and maintenance em-
ployees on the payroll of Glass Fiber and 5 on that of Aurcolo . The A. F. of L.'s claim of
representation rests upon 23 'authorization cards signed by production and maintenance
employees , 22 of whom were employed in Glass Fiber ' s operations , and 1 in those of
Aurcolo .6 One side of each authorization card is in the form of a post card addressed in
print to the "Colorado State Federation of Labor , 312 Insurance Building , Denver, Colorado."
The reverse side of the card contains a printed form of which the following is a reproduction:
4References below to the General Counsel include the attorney who appeared for him at
the hearing.
6 The General Counsel contends that a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act, consists of "all production and main-
tenance employees employed by the Respondents , excluding office and clerical employees,
salespeople, and supervisors , as defined in the Act:" The Respondents ' position , at least
by implication, appears to be that the employees of the 2 companies should not be included in
1 unit . The Respondents ' claim runs counter to an agreement for a consent election which
they signed on September 25, 1951, in Case No. 30 -RC-661 . However, as the collective-bar-
gaining allegations were dismissed at the close of the General Counsel 's case- in-chief, and
as the Respondents thus had no occasion to adduce any evidence on the question , I deem it
unnecessary in the present posture of the record to make findings with respect to the appro-
priate unit.
GLASS FIBER MOULDING COMPANY 393
Authorization for a Representation and a Union Shop Election Under the National Labor
Relations Act and/or Colorado Labor Laws
I, the undersigned , employee of
A. A.
Company
F. F.
of Address of Company of
L. L.
authorize the
to represent me for collective bargaining and for the purpose of a union shop referendum
as provided for by the National Labor Relations Act as amended , or Colorado Labor Laws,
whichever may have jurisdiction . This authorization supersedes any similar authority
previously given to any person or organization . It is understood that I am not obligated
until a majority has signed authorizations.
My Signature
My Address Phone
Kind of Work Date
In 4 of the signed cards , the name "A . F. of L ." Is written in the blank space following the
words "authorize the." One contains the name in the line above the phrase . There is no
insertion of the name of a bargaining agent in any of the remaining 18 cards.
On September 12, 1951 , the day Tucker mailed the letter to Glass Fiber , he filed a petition
on behalf of the A . F. of L . with the Board's Denver office , seeking certification of the A. F. of
L. as the exclusive collective -bargaining representative of Glass Fiber ' s production and
maintenance employees . The initial charge in this proceeding was filed by Tucker on the
following day. On September 25, 1951 , Tucker, on behalf of an organization known as the
"Fishing Rod and Tackle Workers Local Union" (also referred to below as the Local), and
Dayton Denious , an attorney representing the Respondents, entered into an agreement for a
consent election to be held on October 5,1951 . The agreement was the culmination of a series
of three meetings held at the Board's Denver office on or about September 21, t and on
September 24 and 25, and attended by Tucker, Denious, and F. T. Frisbie , a field examiner
employed on the Board ' s Denver staff. The evidence does not establish upon whose initiative
the meetings were arranged , a although Tucker ' s testimony suggests that the arrangements for
the first meeting were made after Denious "got In touch" with him " through" Frisbie.
Tucker was the only witness to describe the meetings . His relevant testimony is somewhat
sketchy , has a conclusional character at points , and does not clearly establish at which of the
three meetings some of the matters touched upon were discussed . It is clear , however, that
the basic subject of discussion was the holding of an election to determine the issue of
representation , and that the conversations turned upon the type of election to be held and the
name of the labor organization to be placed upon the ballot . Tucker was eager " to go to an
immediate election ," and it is apparent that he pressed for one, to that end proposing at the
first meeting that Denious consent to an election (presumably one held pursuant to Section
102.54 (a) of the Board ' s Rules and Regulations , under which the Regional Director's rulings
upon the results would be final) Denious expressed a preference for the holding of a consent
'' Tucker estimated , with some uncertainty, that the first meeting was held about 2 or
2-1/2 weeks after the representation petition was filed . However , other and more definite
testimony he gave is to the effect that it was held about 2 or 3 days (either on September 21
or 22) before the consent-election agreement was signed . As September 22 fell on a Saturday,
a day on which the Board's office is not open for official business , it is probable that the
meeting was held on September 21, if not earlier.
8 At one point Tucker testified that he urged the Board 's Denver office to "set up a meeting";
at another place he agreed that the meeting was "not initiated " by him.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election pursuant to the terms of a "stipulation form," under which finality of determination
would rest with the Board (presumably under Section 102.54 (b) of the Rules and Regu-
lations).9 At some unspecified points during the first meeting, Denious " stated that the A. F.
of L. wasn't a labor organization as such ," and Tucker informed Denious that the organized
employees had met and elected officers , and had resolved to adopt the name " Fishing Rod
and Tackle Workers Union," and that he "intended to get a federal charter" from the A. F.
of L. for the group. 10 Also, at the first meeting , Frisbie raised the point that the Board
would not hold an election unless the A. F. of L. filed a waiver of its right to use the alle-
gations of the charge as a basis for objection to the results of the election . No agreement
was reached at the first meeting with respect to an election , and Tucker 's testimony suggests
that the meeting was adjourned because he "had to take time out" to determine whether a
waiver would be filed.
During the meetings , " the company (presumably Glass Fiber) made it clear (through
Denious) that they would rather have a local union ... certified ... than the A. F. of L."
There was also some discussion concerning the obligation of the Local, if a representation
petition were filed in its name , to comply with the filing requirements of Section 9 (f), (g),
and (h) of the Act. The final upshot of the negotiations was that Denious receded from his
proposal for an election under the "stipulation form" and, on behalf of both Glass Fiber and
Aurcolo, agreed, on September 25, to a consent election to be held on October 5, under the
provisions of Section 102.54 (a), in exchange for an agreement by Tucker that the name of the
Local be placed on the ballot in place of the A. F. of L. The form of consent agreement signed
by Tucker and Denious carries out the terms to which they had agreed . Tucker filed a waiver
of the type described above on September 24.
On September 26, Tucker filed an amended representation petition . The effect of the amend-
ment was to add Aurcolo as an employer , to delete the name of the A . F. of L. as the petition-
ing labor organization , and to substitute therefor the name of the Local. The Respondents did
not suggest "in any way" that the amended petition be filed.
As set out in findings later in this report , between the date of the execution of the agree-
ment and the date of the election , the Respondents committed certain unfair labor practices.
These consisted of the discriminatory discharge of Harry H . Darr , and of unlawful state-
ments to, and interrogation of, employees.
The election was held as scheduled , and the Local lost . On October 12, 1951, the Local
filed objections to the results of the election with the Regional Director of the Seventeenth
Region of the Board . In a report on the objections , dated March 11, 1952, the Regional
Director set the election aside on the ground that his investigation had disclosed that prior
to the election, the Respondents had engaged in certain conduct raising " substantial and ma-
terial issues with respect to the election."
What emerges from the foregoing summary is that the evidence adduced during the General
Counsel' s case- in-chief was insufficient to establish ( 1) that the Respondents refused to
bargain with the A. F. of L.; and (2) that a majority of the claimed bargaining unit effectively
designated the A. F. of L. as their bargaining representative. An analysis of these coh-
clusions follows. 11
1. With respect to the first ground for dismissal stated above, it may be noted initially
that this is not a case where a refusal to bargain may be inferred from a failure to answer a
bargaining demand . The evidence presented will not support a finding that the Respondents
9It is not clear whether Denious made this proposal at the first or a later meeting. The
general context of Tucker's testimony suggests that it was probably made at the first meeting.
10 A group of the employees (the record does not specify how many) held a meeting on
September 15, 1951, elected officers, and decided upon the name of the Local "for our union"
(see testimony of Clara P. Ferrill).
11 The question also arises whether the bargaining demand upon Glass Fiber effectively
served as a demand upon Aurcolo. The General Counsel contends that the request was suffi-
cient to include both Companies as the concerns are an "integrated " enterprise, and he
relies for support upon The Red Rock Company, 84 NLR13 521. The Court of Appeals for the
Fifth Circuit denied enforcement (187 F, 2d 76) with respect to one of the companies there
involved because the employees affected were not on its payroll. Without passing on the
matter, there may be a possible factual distinction between the Red Rock case and this one,
since here it affirmatively appears that Tucker was not aware of the existence of Aurcolo
at the time of the bathe gar request, and it may thus be contended that he could not have in-
tended his letter as a demand upon Aurcolo. I deem it unnecessary to pass on the question
since the grounds for dismissal described in the body of this report are, in my judgment,
ample to support the ruling made . The question of the joint responsibility of the Respondents
for the violations found will be considered later.
GLASS FIBER MOULDING COMPANY 395
failed to respond to Tucker ' s letter. Whether the meetings between Tucker and Denious were
the product of Tucker ' s letter or the filing of the representation petition , or of both , cannot
be known, for the record is silent on the question. On that score, the important fact is that
the parties met within 8 or 9 days after the bargaining request reached Glass Fiber. The
Respondents are not chargeable with the fact that the negotiations did not deal with conditions
of employment . The A. F. of L. never advanced proposals on that score , and it is plain from
the record that what Tucker was intent on negotiating at the meeting was an agreement for a
consent election. True , what Tucker proposed was an election with the A. F. of L. on the
ballot and what resulted was an agreement to substitute the Local , but that does not alter the
fact that the parties met soon after the bargaining request , negotiated with respect to the
only subject advanced by Tucker, as well as on counterproposals made by Denious, and
quickly reached an agreement , although it did not contain all that Tucker sought . Thus the
evidence will not support a conclusion that the Respondents failed to meet and negotiate with
the A. F. of L. reasonably soon after the bargaining demand.
The General Counsel urged at the hearing, and implements the position in his brief with
citation of cases , 1tthat the Respondents proposed the substitution of the Local as ameans of
using the Board ' s election machinery in order "to gain time in which to dissipate the union's
majority ." The cases cited are inapposite. They deal with situations where an employer,
having no reason to doubt the existence of a majority , raises a question of representation
and in effect compels the union to use the Board's election machinery , as a result of which the
employer gains time within which to dissipate the union ' s majority . The basic difficulty with
the General Counsel ' s position is precisely that the Respondents raised no question concerning
the A. F. of L.'s majority. It was Tucker who projected the question of representation into
the negotiations by pressing for an election. The election was an outgrowth of his proposal,
and no greater time was consumed in holding it than if the A. F. of L . had been on the ballot.
The claim is also advanced by the General Counsel that the Respondents ' proposal that the
Local appear on the ballot was made in " bad faith" and was the product of a design to use
the Board 's procedures as a means of diluting the organizational strength in the plant through
unfair labor practices and that thus the Respondents' whole course of conduct constituted a
refusal to bargain . it may be pointed out in that regard that the Local was for all practical,
if not legal , purposes the alter ego of the A. F. of L. organization at the plant ; that it was
already in existence as a labor organization , although unchartered , at the time of the first
Tucker-Denious meeting ; that Tucker informed Denious of its existence at that meeting, and
of his intention to secure a charter for it ; and that it was in that setting that Denious made
his proposal , ii It is true , as will be found below , that the unfair labor practices which followed
the consent -election agreement , consisted in part of interrogation of employees by the Re-
spondents ' president as to whether they had had an opportunity to vote , and had voted , for the
officers of the organizational group at the plant , and of a request by him that the officers of
the group identify themselves . However , I am unconvinced that the purpose of the Respondents
in proposing the substitution was toplaceitselfin a position to focus its unfair labor practices
on the Local, as such, rather than on unionization of the plant in general . In cases in which
an employer in bad faith compels resort to an election in order to gain time within which to
commit unfair labor practices in order to dissipate a majority, there is a clear correlation
between his maneuver to have the Board ' s procedures invoked and the unlawful conduct used
to thwart the election machinery. I can perceive no such correlation in the light of the evidence
"Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 (C. A. D. C.), and M. H. Davidson Co., 94
NLRB 142.
13 The General Counsel asserts in his brief that the Respondents insisted on the "estab-
lishment" of the Local. At one point, Tucker testified that it was not his "original intention"
"to establish" the Local and that it was established "more or less at the insistence of
Mr. Denious ." Tucker also testified , in response to a leading and suggestive question, that
the Local was established "to solve Mr. Denious' objection to bargaining with the A. F. of
L." Such testimony concerning the establishment of the Local is inconsistent with Tucker's
admitted statements to Denious at the first meeting. Moreover , Clara P . Ferrill, former
president of the Local who was produced as a witness by the General Counsel, testified
credibly that the Local elected officers and selected its name on September 15, 1951. Thus
the actual status of the Local was that it was in existence as a labor organization, even
though unchartered , prior to the negotiations . The mere fact that it did not secure its charter
from the A . F. of L. until after Tucker and Denious reached an agreement does not alter
that conclusion. In the light of the evidence, I can accord no substantial weight to the testi-
mony that the Local was established at the " insistence" of Denious or to an answer to a
leading question that it was established "to solve Mr. Denious ' objection to bargaining with
the A. F. of L."
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondents raised no question of a majority; did not initiate the proposal that an
election be held; gained no time to dissipate the union's majority; and proposed a substitution
on the ballot of an organization which had been organized with the assistance , or under the
aegis, of the A. F. of L., and to which the latter intended to issue a charter , according to
what Tucker told Denious.
Finally, one other basic circumstance prevents a conclusion that the Respondents refused
to bargain . The effect of the agreement , with its provision for the placing of the Local on the
ballot ;u and of the filing of the amended representation petition , was an abandonment by the
A. F. of L. of its prior demand for recognition. 15 That conclusion is not altered by the fact
that the Local was substantially the alter ego of the A. F. of L. The test of the view that the
A. F. of L. abandoned its claim to recognition Is that had the Local won the election, the
Respondents would have been legally obligated to recognize and bargain with the Local and
not the A. F. of L. I think that it would be inappropriate to read into Tucker' s agreement to
substitute the Local and the amendment of the petition an implied condition that the A. F.
of L.'s demand for recognition should be considered as withdrawn only if the Respondents
refrained from committing the unfair labor practices in which they subsequently en-
gaged .16 What the General Counsel is in effect urging is that the A. F. of L. be permitted to
recant what was in substance a withdrawal of its bargaining demand. This is not a case in
which, upon nullification of an election because of an employer 's conduct, the Board ap-
propriately accepts other evidence of representation and requires an employer to bargain
upon a preexisting request by a union . In this proceeding , there is no longer a bargaining
demand in existence upon which a bargaining order may be predicated . A direction to the
Respondents to bargain would mean that the Board would have to ignore the adandonment of
the A. F. of L.' s request for recognition and hold that it is still in existence , notwithstanding
the fact that it was voluntarily abandoned . In my judgment , it would be inappropriate to permit
the A. F. of L. to recant.
The reasons set out above require the conclusion that the General Counsel failed to es-
tablish prima facie evidence that the Respondents refused to bargain.
2. There is ufficient evidence that a majority of the employees effectively designated
the A. F. of L. as their bargaining agent . Some initial points should be made clear in that
regard . First, I am fully mindful that in appraising the cards one must do so with a sense of
Industrial realities . The people who signed them are not lawyers and it may be assumed that
they are unaware of legal niceties or the refinements of the law of agency and of industrial
relations . Nevertheless an essential ingredient of the General Counsel's case is that he
establish an authorization by the majority of the employees in the unit of the A. F. of L. to
represent them . If that ingredient is missing , whether for hypertechnical reasons or other-
wise , I am under an obligation to dismiss the relevant portions of the complaint. Moral
convictions based on speculation concerning the employees' intentions may not be substituted
for a judgment based on evidence . Second , there is much talk in the record of representation
of the employees by the A. F. of L., and this may leave the impression that there Is sub-
stantial evidence beyond the four corners of all the cards to establish the claim of repre-
sentation.' Careful scrutiny of the record establishes that this is not so. Were there a back-
ground to the cards of evidence of meetings or other activities in a context from which it
could be inferred that a sufficient number of identified employees knew that the A. F. of L.
purported to represent them or participated in its activities, the cards could be construed
against such a background and an inference of representation could perhaps be drawn from
14At the hearing , Tucker made the conclusional statement that he was "forced" to sub-
stitute the Local on the ballot. He is an experienced organizer and he was not "forced" to
do anything . The parties met, negotiated, made concessions , and freely reached an agreement.
151t is not my intention to hold that where a union files a representation petition after a
bargaining demand, it thereby waives its right to insist that the employer bargain. The
conclusion that the amended petition was part of a course of conduct constituting an aban-
donment of the bargaining demand is based on the particular facts of this proceeding.
i6It may be noted that the consent- election agreement was reached in the face of the fact
that the charge in this proceeding had already been filed . The filing of the waiver does not
mean, of course , that it affscted subsequent unfair labor practices . But it does indicate
that Tucker , who represented both the A . F. of L . and the Local, was not deterred from a
course of conduct amounting to an abandonment of the A. F. of L .'s demand for recognition
by the fact that, in his judgment, the Respondents were capable of an attempt to defeat
unionization through unfair labor practices . There is some intimation in his testimony that
he visualized the possibility of other unfair labor practices than those alleged in the charge,
because he testified that he sought an early election because of his familiarity "with tactics
that are sometimes used to break a union."
GLASS FIBER MOULDING COMPANY 397
the whole context of the evidence . However, there is insufficient evidence of such a back-
ground . The sum of such background evidence is that 5 employees , of whom only Ferrill is
identified , met with Tucker on September 8; that Ferrill and 3 other employees, Darr,
Carpenter , and Hansen , had a meeting with Tucker at Darr ' s home on September 10 (ac-
cording to Tucker this was his first meeting with the employees ; Ferrill testified to the
September 8 meeting); that at that meeting , Tucker gave Darr some blank authorization cards
which he thereafter took to the plant and distributed "among the few of them , the men"; that
a meeting was held on the following night (from the context of the whole record it appears
that Tucker , Ferrill , and Darr attended , but there is no evidence that anyone else did);
that there was a meeting at Tucker ' s office on September 15 at which those in attendance
(unidentified in the record except Ferrill) organized the Local , and that Mary C. Antolini,
an employee , was an officer of the Local . In addition to their activities , Darr , Hansen, and
Antolini inserted the name of the A . F. of L in the cards as their bargaining agent , and with
the background evidence of their organizational activities and meetings with Tucker, the
A. F. of L .'s representative , give support to a finding that they effectively designated the
A. F. of L. as their bargaining representative . But with respect to the other 18 signatories,
the record is barren of any evidence that they attended any meetings , participated in any
other organizational activities , or did anything else except sign the cards . Nor is there any
evidence of what passed (except a card) between any person or persons who distributed the
cards and any of the 18 signatories , i7 As 2 of these cards contain a designation of the A. F. of
L. they are not in question , but with respect to the remaining 16, the evidence of represen-
tation consists solely of the cards , and the General Counsel ' s claim that their signatories
designated the A. F. of L. to represent them must stand or fall on the effect to be given to
the 16 cards, which constitute a majority of those in evidence.
The name and address of the State Federation on the front portion of each card constitute
no part of the reverse or authorization side . The printed material on the front is plainly
designed to serve as a mailing address . The cards were not in fact mailed , and there is no
evidence that the 16 signatories in question were aware of the printed name and address,
knew of the connection between the State Federation and the A . F. of L., or in any way in-
tended to constitute the State Federation their bargaining agent
With respect to the 16 cards , if an inference of authorization may be drawn , it must be based
upon the printed initials "A. F. of L." appearing on the left and right of the authorization side
of the cards . I am unable to construe the initials as part of a context of authorization in-
ferred from the card as a whole . They are not clothed with any language of authorization and
they apparently were not designed for that purpose , since a blank line is provided for the
conferral of authority and may not be regarded as surplusage . Moreover, although the
initials "A. F. of L." are widely understood to represent the name of the American Federa-
tion of Labor and have received considerable publicity as such , I am unable to 'speculate what
meaning any given signatory attached to the initials . It is in this area that evidence of contact
by a given signatory with the A . F. of L., through meetings or otherwise , would have particular
force and aid a construction that the signatory , in a context of such association or activity,
designed his signature as a specific conferral of authority upon a labor organization known to
him as the A . F. of L., or upon one of its affiliates is
17 Compare Northwestern Cabinet Company, 38 NLRB 357, 366-367, where the Board
made a finding of authorization upon the basis of background evidence that card signatories
were told that they were applying for membership in an international union belonging to
the American Federation of Labor , although they had signed cards applying for membership
in a federal local chartered by the American Federation of Labor. Significantly, the Board
stressed the indicated background evidence, notwithstanding the fact that the local advanced
no claim of representation and had some loose, although unaffiliated, association with the
international.
ilPanther-Panco Rubber Co., 11 NLRB 1261, may be distinguished on its particular facts,
since the Board entertained doubts of the accuracy of testimony bearing on the genuineness
of certain signatures and the reason why these and others were not on a signature line
intended for them . However , it is noteworthy that a question was raised whether signatures
appearing on a blank line marked "Name" and not upon one designated "Signature of Ap-
plicant" were effective as a conferral of authority. The Board declined to accept such cards
as authorizations in the absence of credible evidence that the names appearing in the blank
line marked "Name" were both genuine and intended as a signature . The question of the
genuineness of the signatures is in no way involved in this proceeding, but the Panther-
Panco case has some relevant application to the fact that there is no evidence in this case
to indicate that the initials "A. F. of L ." were intended to be used by the 16 signatories as
a designation in place of the blank authorization line.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The case of Cummer -Graham Co ., 90 NLRB 722 , upon which the General Counsel relies, is
clearly distinguishable. There the authorization line contained the printed initials "C.LO."
with space in front of the initials apparently intended for the insertion of an affiliate of the
C.I.O. Some of the employees inserted an approximation of the name of an international union
affiliated with the C. LO. in front of the printed initials ; others made no insertion , so that the
authorization line contained only the designation "C.LO." Upon a claim of representation by
the international union, the Board, under well-established doctrine , held that the designation
of the C. LO. was sufficient to include a union affiliated with it . That principle is in no way
involved here, for the point of the matter is that the authorization line in the 16 cards in
question contains no designation of any kind.
Undoubtedly , each of the 16 signatories intended to confer authority upon some person or
organization , but I am unable to infer an effective conferral of authority upon the American
Federation of Labor from the mere fact that the initials "A. F. of L." appear along the sides
of the cards , even when viewed within the context of all the language on the cards, in the
absence of extraneous evidence establishing an intention that the printed initials were to
serve as the designation of a bargaining agent . Moreover , I can draw no such inference from
the mere possession of the cards by the American Federation of Labor , in the absence of
proof that the employees intended to confer , and in fact conferred , authority upon that organi-
zation .19 Such proof is lacking with respect to the 16 cards in question , and the allegations
of refusal by the Respondents to bargain thus must fail.
Turning to the remaining issues in this proceeding , upon the entire record in the case, and
from my observation of the witnesses , I make the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENTS
Glass Fiber Moulding Company is a Missouri corporation and is authorized to transact
business in Colorado . Aurcolo Manufacturing Company is a Colorado corporation . Glass Fiber
manufactures and sells fishing rods . Aurcolo produces the handles used in the rods and sells
them to Glass Fiber. Both companies are housed in the same building , which displays Glass
Fiber ' s name but not Aurcolo' s, have common officers and stockholders , share clerical
facilities , although separate books and records are maintained for the concerns , and their
operations are under the active management and direction of Arthur W. Loerke , the president
of both firms . Glass Fiber employs approximately 30 persons , and Aurcolo ' s have not exceeded
5 in number . One or two employees have been transferred from the payroll of one of the
companies to that of the other . The labor-relations policies of both Respondents are controlled
in common by Loerke . Employees of both firms have been assembled at the same meetings
for speeches by him on the subject of the Respondents ' labor - relations policies and the com-
panies ' attitude toward unions . The consent -election agreement which the Respondents signed
on September 25, 1951 , provides for a single bargaining unit of their production and main-
tenance employees.
A substantial volume of raw materials (to an extent not specified in the record) is sold and
shipped to the Respondents from points outside the State of Colorado . Glass Fiber sells
goods it produces to another firm in Colorado . Such sales annually exceed a value of $100,000.
Glass Fiber ' s customer in turn annually ships more than $50,000 worth of such goods to
points outside of the State of Colorado . Aurcolo began its operations in July 1951 . For the
period between July 9 and December 31 , 1951 , the volume of Aurcolo ' s sales amounted to
$ 18,172 . 20, of which all but approximately $ 1,000 was derived from sales to Glass Fiber.
Since December 31, 1951, whatever sales Aurcolo has made have been made to Glass Fiber
(the volume of such sales is not described in the record ). Between July 9 and December 31,
1951, Aurcolo purchased materials valued at $19 ,303.62 . With the exception of several
thousand dollars ' worth of supplies , the goods so purchased consisted of raw materials
" transferred" by Glass Fiber to Aurcolo.
Glass Fiber concedes in its answer that it is engaged in interstate commerce , and it does
not dispute that the Board has jurisdiction . There is no doubt that the Board has jurisdiction
of Aurcolo , if for no other reason than that it produces goods shipped in interstate commerce.
The question arises whether the Board should take jurisdiction over Aurcolo in view of the
fact that its purchases and sales , considered separately from Glass Fiber ' s operations, do not
taCf. Christian Board of Publication , 13 NLRB 543, where the Board refused to accept
as evidence of authorization signed slips of paper containing no words of authorization,
although in the possession of the purported representative who also held numerous signed
cards containing a proper designation.
GLASS FIBER MOULDING COMPANY , 399
meet jurisdictional criteria administratively established by the Board in such cases as Hollow
Tree Lumber Company, 91 NLRB 635. The evidence abundantly establishes that the operations
of both companies are substantially integrated and that those of Aurcolo have been primarily
an ancillary feature of Glass Fiber' s operations .20 In short the companies have, in the main',
constituted a single enterprise , and this warrants the assertion of jurisdiction over Aurcolo
as well as Glass Fiber. n I find that both Respondents are engaged in interstate commerce
and that their operations affect such commerce , within the meaning of the Act, and that the
assertion of jurisdiction over Aurcolo, as well as Glass Fiber, will effectuate the policies of
the Act.
IL THE LABOR ORGANIZATION INVOLVED
The American Federation of Labor admits persons employed by the Respondents to mem-
bership and is a labor organization within the meaning of Section 2 (5) of the Act. n
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Organization of the employees began as a result of withdrawal of a rest -period privilege
from the employees by the management. The privilege was restored , either in whole or in
part , by Loerke, but five of the employees , including Ferrill, communicated with Tucker on
September 8, 1951 , concerning organization of the plant . Tucker met with employees , first at
Darr ' s home on September 10, and then at Ferrill's house on September 11. At one of the
meetings , Tucker furnished Darr with some blank authorization cards for distribution among
the employees . All but three of the cards in evidence are dated either September 10 or 11,
and presumably were respectively signed on oneor the other of those dates . As noted earlier,
Tucker addressed his bargaining request on behalf of the A. F. of L. and filed the represen-
tation petition on September 12; Glass Fiber received the bargaining request on September 13;
employees met on September 15 and elected officers of the Local and decided upon its name;
Tucker and Denious met on or about September 21 and negotiated concerning a consent elec-
tion , completing their negotiations on September 25 with an agreement providing for a consent
election and the substitution of the Local for the A. F. of L . on the ballot; and the election,
which the Local lost , was held on October 5.
B. The allegations of interference, restraint, and coercion
Loerke delivered a series of speeches to employees during a period of approximately a
week preceding the election. u The first speech, delivered about a week before the election,
mLoerke testified that Aurcolo seeks and anticipates the development of other business
and is conducting some experimental work to thatend . I am unable to indulge a speculation
concerning Aurcolo 's future business prospects . Whatever they may be, the evidence indi-
cates that in the past its operations have been primarily an adjunct to those of Glass Fiber.
n The Red Rock Co., 84 NLRB 521, enforcement denied on other than jurisdictional grounds
with respect to one of the companies involved , 187 F . 2d 76 (C. A. 5); Launderepair Co.,
90 NLRB 778 ; Morgan Packing Co., 26 LRRM 1552; Manhattan Shirt Company, 84 NLRB 100.
22 The Respondents' claim that the A. F. of L. is not a labor organization is without merit.
See N . L. R B. v . Westex Boot and Shoe Co., 190 F . 2d 12 (C. A. 5). Cf. N. L. R. B. v.
Highland Park Manufacturing Co., 341 U. S. 322.
:a Findings with respect to the speeches are based on a synthesis of relevant portions of
the testimony of four employees , Ferrill, Ronzio, Antolini, and Smith. Carpenter 's recol-
lection of the content of a speech made on the day of the election appeared markedly faulty
and was stimulated by discussions with others , and I base no findings on this portion of his
testimony , although it may be noted that he attributes remarks to Loerke on that occasion,
which are also imputed to him by Smith and Ronzio . Some variances may be found in the
testimony of Ferrili, Ronzio, Antolini , and Smith, including differences in the remarks
imputed to Loerke, but, upon my observation of the witnesses, these do not proceed from
dishonest motives and are attributable to normal variables in the powers of recollection
which exist among human beings . With respect to much of the statements attributed to
Loerke, there is substantial accord among the witnesses . It is important to remember that
Loerke, although present at the hearing , gave no testimony with respect to the content of
his speeches, nor did the Respondents produce any witnesses on the subject . The testimony
of the employees stands undisputed except as they may differ among themselves . Ferrill
impressed me as having the best recollection of the speeches , and where material differ-
ences exist among the employees , I have accepted her recollection as a basis for my findings.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was made to an assemblage of all of the employees in the plant ' s reception room . Loerke
read from a prepared script, asserting that he did so in order not to be " blamed for intimi-
dation of his employees" (Ferrill ' s testimony). The speech was devoted primarily to the
origin of Glass Fiber and its progress and contained no material violative of the Act.
Loerke ' s second address was made about 3 days before the election to group of approxi-
mately 20 female employees in an area inside the plant near its entrance door His talk was
made extemporaneously , beginning toward the end of the lunch period and extended for a sub-
stantial time thereafter . Not all of those who heard him were present throughout his remarks,
since the group gathered about him grew as employees returned from lunch and joined those
already there. Antolini was the second employee on the scene, and Ferrill and Ronzio
arrived later . During the course of his remarks , Loerke pointed to different members of the
group , inquiring , as he pointed , whether they had been invited to attend the meeting of the
organized employees at which the officers had been elected and if they had voted for such
officers. As Ronzio described it, as he pointed to a given employee , he asked her: " Did you
vote? " He inquired why the employees had not come to him to form a company union instead
of having an "outsider in there to tell us what to do and how we should work and what nego-
tiations should go on." Loerke adverted to the question of overtime , asserting that if a
"union got in," it would limit the employees ' workweek to 40 hours and would not permit
overtime in order to compel the employer to hire new employees , so that the Union could
increase its membership and thus collect more dues Loerke stated that union - authorization
cards had been distributed at a plant operated by Wright and McGill , a Denver concern, and
that there the cards had been distributed openly , unlike those at the Responents ' plant. The
cards at the Respondents ' establishment had been passed out stealthily "behind his back," he
asserted , and he had not been given "the opportunity that Wright and McGill had had." That
concern , he stated , had given its employees " a blanket raise" and there " the union had
evidently been forgotten about ." As far as appears , Ferrill was the only person to make any
response to Loerke ' s remarks . When she observed that no one replied to his inquiries con-
cerning the election of officers , she made statements defending the fairness of the election
and the representative character of the organization. 2e
About 45 minutes before the election , Loerke delivered a speech to all of the employees in
the plant who had been assembled for that purpose in one of the offices . The talk ended about
15 minutes before the employees voted . Loerke made substantially similar remarks con-
cerning a 40-hour workweek and overtime as he had done on the occasion described above. I
He asserted that if the employees thought they had worked previously , they "were really
going to work when the union got in there" and he stated that he "did mean work ." He "asked
the officials (of the employees ' organization) to stand up and identify themselves ." He paused
"a considerable time" for them to do so , and when no one complied , he belittled the "offi-
cials" for not identifying themselves and indicated that they were acting stealthily.
Earlier that day, Howard Fischak , Ferrill' s foreman , in Antolini ' s presence , asked Ferrill
what the Union' s contract proposals would be, why employees were joining a union, and how
she "was going to vote ." She replied : "Why does everybody come to me and ask for things
like that? Why should I know more than anybody else? " Fischak retorted that Ferrill
"seemed to be the head of everything that went on." 26
In appraising the legality of various of Loerke ' s statements , reference should be made to
the setting and full context of the speeches in which they are to be found . One of his basic
themes is that employees , as at Wright and McGill , stand to profit from an abandonment of
24Except as otherwise indicated , the language appearing in quotations in the description
of Loerke 's speeches herein is taken from Ferrill's testimony.
25Smith quotes Loerke as stating that if the plant were unionized "there would be no
raises." No other witness quotes Loerke to that effect . Smith's recollection appeared to
be somewhat faulty. In the light of that fact and of the other witnesses ' testimony, although
Loerke gave - no testimony on the subject. I do not believe that the evidence preponderantly
establishes that Loerke made the statement on the subject of "raises" and therefore base
no finding on this aspect of Smith's testimony.
25Smith also described an incident with Fischak. About 3 days before the election, in the
presence of Smith and 2 other employees , Fischak made the observation that "just three
days" remained before the election and that he hoped that the Union would not win. Smith
said, "Hub?" and Fischak remarked , "What do you mean, huh9 You mean you are for the
union." Smith replied that she was "not going to make any statements ." It is unnecessary
to determine whether Fischak 's inquiry during this somewhat fragmentary and casual
conversation was unlawful, as such a determination would "neither add to , nor detract
from, the scope" of the remedial order to be recommended herein (Chicago Newspaper
Publishers Association . 86 NLRB 1041 , 1044).
GLASS FIBER MOULDING COMPANY 401
unionization. Thus I do not deem his reference to a company union as a mere rhetorical
inquiry , but rather as the expression of a preference for such a union and as a proposal that
the employees abandon their right of self -organization and instead " come to him" for the
formation of an organization which would have his favor and assistance . Such a proposal
interferes with and inhibits the right of employees to select their own bargaining represen-
tative and violates the Act . Loerke's description of the "blanket increase" at Wright and
McGill and his assertion that the union there had been " forgotten ," coupled with his com-
plaint that he had not been given " the opportunity" afforded that firm , were but a thinly
disguised promise of possible benefit to be derived by the employees at the Respondents'
plant if they would abandon their organizational efforts. n Such statements are designed to
perform the same office as the proverbial carrot dangled before a mule to induce him to pur-
sue a given course , but, unlike the mule , the law guarantees employees freedom from such
inducements as Loerke put before them . His inquiries whether the employees at whom he
pointed had been invited to attend organizational meetings and whether they had voted for
union officers were no mere rhetorical questions , but constituted unlawful interrogation con-
cerning attendance at meetings and participation in the union' s activities .$ Loerke ' s demand
for identification of the union ' s "officials" is plainly coercive and unlawful. 29 The same may
be said of Fischak's interrogation of Ferrill which, when viewed against the background of
Loerke ' s inquiries and other misconduct by the Respondents , may not be regarded as an
isolated incident . Loerke ' s remarks concerning overtime did not violate the Act, although
they appear among other statements which were unlawful . Taken literally , as Ferrill and
Antolini described them, the remarks with respect to overtime purported to de-
scribe Loerke' s view of what the Union would require and not what the management would
do, 30 and thus are protected by Section 8 (c) as an expression of "views , argument, or
opinion." a However, that is not true of Loerke ' s statement that in the event of unionization
the employees ' workload would be increased . That was a threat of change in management
policy and was thus unlawful.
In sum , I find that the Respondents violated Section 8 (a) (1) of the Act as a consequence of
Loerke' s expressed preference for a company union; his intimation that the way to secure an
increase is by abandoning unionization , his inquiry whether given employees had been invited
to attend the Union ' s meeting and had voted for its officers; his request that employees "stand
up and identify themselves " as officers of the Union ; his threat that the employees ' workload
would be increased in the event of unionization of the plant ; and Fischak' s interrogation of
Ferrill. 31
C. The discharge of Harry H. Darr
Darr was on Glass Fiber ' s payroll and began his employment in December 1950 . He oper-
ated a machine which processed fiber material into the shape desired . It is undisputed that
Loerke discharged him on September 27, 1951
As found above , he was one of a small group who initiated union organization at the plant.
The first union meeting after the approach to Tucker was held at Darr ' s house . He is the only
person identified in the record as a distributor of authorization cards at the plant.
Prior to the organizational campaign at the plant , there was no rule in the plant prohibiting
employees from talking while at work On one occasion in or about the middle of September,
Barr and Hansen talked while the former was at work at his machine Loerke summoned Darr
Z7Krimm Lumber Co., 97 NLRB 1561.
28 A. Kravitz and Co. , 89 NLRB 1415 ; International Furniture Co., 98 NLRB 674.
29Alside, Inc., 88 NLRB 460.
SORonzio, Smith, and Carpenter simply quote Loerke as stating, in effect , that unionization
would result in a loss of overtime. Their testimony suggests that Loerke 's relevant remarks
had the earmarks of a threat or reprisal for unionization . However, the testimony of Ferrill
and Antolini with respect to the relevant statements contained greater circumstantial detail
and I have accepted their version.
iShortly before the election , the Respondents placed some posters on the plant ' s bulletin
board on the subject of unionization and the impending election . While some of the language
used is intemperate and exaggerated in tone and content, the posters are protected statements
of "views, argument, or opinion" within the meaning of Section 8 (c).
32 Although Fischak was employed as a foreman in Glass Fiber's operations , I have imputed
responsibility for his conduct to Aurcolo, as well as to Glass Fiber , because of the unitary
nature of the enterprise at the plant , and upon the authority of cases which will be cited in
connection with a discussion of Darr's discharge.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his office and forbade the employee to talk while at work or to distribute any authorization
cards 33
Darr and Carpenter worked in the same department at the plant and usually rode to work
together in Carpenter's car. It was Carpenter's practice to call for Darr at the latter's home.
Their scheduled starting time at the plant was 8 a.m. Fischak was their foreman.
Darr was ill on Wednesday, September 26, and he was absent from work on that day. In
order to spare Carpenter the trouble of calling for him and to notify the management of his
absence, Darr telephoned Carpenter about 7:35 a in and requested the latter to notify the
plant that he was ill and was unable to come to work When Carpenter arrived at the plant at
his customary time, he notified Fischak that Darr would be absent.
At the end of the day, Darr's timecard was removed from the rack by a clerk (unidentified
in the record) upon Loerke's instructions. According to Loerke, this was done because he
wished to speak to Darr when the latter returned to the plant Loerke testified that the only
instructions he gave the. clerk were to tell Darr to see him. Mildred E. Barrett, the Respond-
ents ' bookkeeper, testified that at noon of that day she instructed Ruth Hires, a clerk, to call
Darr's home, that she heard Hires give a number to the telephone operator, that no conver-
sation followed, and that Hires then hung up Neither Hires nor the clerk referred to by
Loerke was produced as a witness.
Darr arrived at the plant on the following day at the scheduled hour. When he saw that the
card was not in the rack, he spoke to Hires about the matter and she informed him that he had
been terminated Hires has her desk near the time clock and it appears to be her function to
place the cards in the rack. Darr left the plant after his conversation with Hires When
Loerke arrived at the plant later that morning, he learned that Darr had been there Loerke
thereupon called Darr's home and, upon learning that the employee was not at home, left a
message requesting that Darr return to the plant Darr reached his home that morning after
Loerke's call, changed into his street clothes, and was then informed by his daughter that
Loerke had telephoned. Darr thereupon complied with Loerke's request and returned to the
plant and upon his arrival proceeded to Loerke's office.
The evidence of who was present in the office and what occurred there is conflicting. Ac-
cording to Darr, only 2 other persons were present when he spoke to Loerke. These were 2
employees; Ross and Ellis (who subsequently succeeded Fischak as foreman). Loerke and
Barrett claim that the latter was also present
According to Darr, he opened the conversation by telling Loerke that his daughter had given
him a message from Loerke that he had not been terminated and to return to the plant.
Loerke, Darr stated, replied that "it was all a mistake" and that Darr had not been termi-
nated. Darr testified that he then expressed the view that he should be paid for "this half
day's work", that Loerke replied that he would be paid for the half day; and that Loerke then
laid him off, stating that there was insufficient business to keep his (Darr's) machine running
and that he would be recalled if business picked up The sense of Darr's testimony is that he
felt he was being discharged and not temporarily laid off and that he expressed himself to that
effect. Whether at that point or another, but after Loerke had told Darr that he was being laid
off, Ellis (whoappears tohavebeen identified Closely with management, although not yet a fore-
man) remarked, according to Darr, that "we have put up with you an awful lbt" and pointed
out that Darr had beeh absent a number of weeks in order to have his teeth extracted and to
have dentures made. Darr then inquired, tie testified; why he had not been discharged at that
time. He also inquired of Ellis, Darr asserted, why Ellis had not discharged or criticized
him for smoking in the lavatory on several occasions, although such smoking was contrary to
company rules and he (Darr) had informed Ellis that he was going to continue to smoke.
Darr's version does not indicate whether Ellis made any response, but according to Darr's
account, at some point after Darr asked Ellis why he had not been discharged earlier , Loerke
interposed to point out that Darr was not being discharged but "was just laid off temporarily"
because of lack of work Darr also testified that he asked Loerke for "a recommendation
showing that I was laid off on account of no work"; that Loerke agreed to give him one,
and that when he prepared to leave, he repeated his request, but Loerke, left the office for
awhile and stated, upon his return, that he was out of "government forms" and could not
supply the recommendation "at this time" but would mail it Darr left the plant after re-
ceiving 2 paychecks (1 covering his time for that morning) which were prepared after his
interview with Loerke.
59 The General Counsel's brief urges a finding that this prohibition, as well as an alleged
elimination of a rest period after unionization began, violated Section 8 (a) (1) of the Act.
In the light of the bill of particulars furnished by the General Counsel and of statements
that he made at the hearing to the Respondent's counsel with respect to the material upon
which he would rely to establish the allegations of paragraph 13 of the complaint, I deem it
inappropriate to make the findings sought by the General Counsel.
GLASS FIBER MOULDING COMPANY 403
The following excerpt from the transcript contains Loerke's version of the conversation
and of the circumstances of Darr's termination:
And about, 11 o'clock he came in and wanted to see me. So I talked to Mr. Darr, and he
stated that I could take my job and stick it up my rear end; that is the first statement he
made. And he says, "I am making and have been making over three ro (sic) four hundred
dollars." And so I said, "Well, Harry, there is no use your working for me at such low
pay when you are making so much more on the outside." And he asked, he says, "Am I
fired?" and I said, "You can take your own judgment on that, whichever you want to take,
you are terminated." And so that was the reason Harry Darr was terminated.
Barrett's version of the conversation is that Darr walked into the office and asked Loerke if
he had been discharged, that Loerke replied, "Sit down, Harry, and we will talk it over"; and
that Darr responded, "You think I'm a dumb- - ... I can make three hundred a week and you
can just stick it--."
Darr denied that he made the rude remarks, either in words or substance, attributed to him
by Loerke and Barrett. He also denied, in response to a question put to him by the Respondents'
counsel, that he told Loerke that he was "already making $300 a month," and he explained
that what he had said (at a point in the conversation not specified in his testimony) was that a
layoff for a few weeks would not "bother" him because it was the melon harvest season and
that he could make himself "a couple of hundred bucks a week" in the harvest area
There are aspects of the evidence which militate against acceptance of the versions given
by Loerke and Barrett. First, some phases of their testimony do not quite mesh with other
evidence which is both credible and undisputed. There is no reason to doubt the testimony
that Darr telephoned Carpenter and asked the latter not to call for him and to convey a
message that he would be absent. Carpenter lived at some distance from Darr, and it would
only be natural that Darr should make the call to spare Carpenter an unnecessary trip.
Carpenter credibly corroborates Darr's testimony, and the evidence is undisputed that when
Carpenter arrived at the plant he gave Fischak Darr's message. Yet Barrett claims that she
instructed Hires at noon of that day to call Darr's home "to see if he was absent," and Loerke
asserts that he had Darr's card taken out of the rack at the close of the day because Darr had
absented himself "without notifying the company." The implication of that claim is that either
Loerke did not talk to Fischak about the matter or that the latter did not tell Loerke about
Darr's notification. Bearing in mind that Loerke appears to have focused his attention upon
Darr's absence, that the plant is relatively small, and that Fischak was Darr's foreman, it is
difficult to conclude that Loerke would not take up the question of Darr's absence with Fischak
before ordering the card taken from the rack or, if he did talk to the foreman, that Fischak
would not tellLoerke about Darr's message It is unnecessary to speculate whether Loerke had,
in fact, ordered the card taken from the rack because of a purpose to use Darr ' s absence as an
excuse to discharge him and then changed his mind because such a justification would be
insufficient to conceal a design to discharge Darr for union activity. The point is that I am
unpersuaded of the truth of Loerke's claim, as he testified, that he had the card removed from
the rack because Darr had absented himself "without notifying the company," and I do not
believe that Loerke made a frank disclosure of his motivation in removing the card. Second,
although Darr had been told by Hires that he had been terminated, in the light of Loerke's
request that he return. I deem it less probable that he would open his remarks on so insolent
and challenging a note as Loerke described than that there would be some opening statements
dealing with Loerke's request that he return. In that regard, Darr's version of the initial
phases of the conversation sounds a more plausible note. Third, I do not credit Barrett's
claim that she was present in the office during the conversation . There are discrepancies
in her testimony which bear on the question whether she was actually in the office during the
conversation . Her desk is located outside Loerke ' s office and about 2 or 3 feet from its en-
trance. Loerke's testimony described her location during the conversation as "in" his office
"at the doorway." Initially, Barrett's account placed her position "as just about the entrance
of Mr. Loerke's office and right about the corner of my desk " She also testified that Darr
"went by" her in order to get "into" Loerke's office. At a later point in her account, she
located her position as "in the door, between the two offices." Now Barrett could not have
been standing "in" the office, and "in" the door, and "right about the corner" of her desk
which is 2 or 3 feet outside of Loerke's office, all at the same time. There is no evidence that
she could not have overheard the conversation from a position at the corner of her desk out-
side the office and I would be disinclined to attach significance to what, in other circumstances,
might be minor variances in a witness ' description of her location at a given time . However,
at points in describing her location, her demeanor assumed an evasive cast and it became
evident to me when she finally placed herself as "in the door, between the two offices" that
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she did so because of a realization that she had already given testimony from which one might
possibly infer that she was not actually in Loerke's office, but at her desk outside, and that
it was possible that she was not ina position to overhear the conversation Upon my appraisal
of the witness, I do not regard her testimony as reliable. Finally, for all that appears in the
testimony of Loerke and Barrett, Darr's side of the conversation consisted of little more than
an insolent outburst which as already noted, I regard as implausible in the light of other
evidence On the other hand , Darr's version is characterized by circumstantial detail such
as his concern over payment for the morning and a recommendation. Significantly, Darr was
actually paid for the morning and this tends to corroborate his claim that he requested such
payment, a request to which no, reference is made by Loerke and Barrett Moreover, Darr
quotes a detailed and recriminatory conversation between himself and Ellis; Loerke and
Barrett make no reference to the matter. The circumstantially detailed nature of Darr's
account contributes a note of plausibility to it, particularly as one phase of his testimony,
his request for a half day's pay, is corroborated by the undisputed fact that he received pay-
ment for the half day in sum, I am unable to credit Loerke and Barrett I credit Darr's
version of what occurred in Loerke's office.
The Respondents do not contend that Darr was discharged because of his absence , or laid
off temporarily because of a lack of work . There is no evidence that there was insufficient
work available. On the contrary, it is undisputed that Fischak told Darr only 2 weeks before
the latter ' s discharge that production would have to be stepped up and that the backlog of
orders was so great that it would be necessary " to run two shifts ." Thus it is clear that
Loerke did not tell Darr the truth when the former told the employee that he was being
temporarily laid off for lack of work . I am convinced and find that it was`no more than a
pretext to conceal a motivation to dismiss Darr because of his union activity. Loerke offered
no denial that he was aware of Darr ' s activities , and it is plain that he had substantial in-
formation about them , for he forbade Darr to distribute cards in the plant, and it is evident
that the cards to which Loerke referred were the union authorization cards . Against the
background of the evidence that Darr was one of the principal sponsors of the movement
to organize the plant and engaged in extensive activities to that end ; that the discharge occur-
red shortly after the agreement to hold the election was made ; that Loerke was aware that
Darr engaged in union activities and rebuked the employee for distributing the cards in the
plant ; that Loerke was hostile to the employees' efforts at self-organization and engaged
In unfair labor practices to implement his hostility, and that he used a pretext to effect
Darr ' s termination , I find that Darr was discriminatorily discharged because of his union
activities.
As Darr was on Glass Fiber ' s payroll , the question arises, as it does with respect to
the other unfair labor practices found above , and also in the case of Ferrill , whether responsi-
bility for the unlawful conduct may be imputed to Aurcolo as well as Glass Fiber. Such
responsibility goes without saying with respect to the unlawful practices committed by
Loerke during any speech at which all employees in the plant were present . In connection
with the other violations , it may be borne in mind that the two corporations have been in
effect arms of the same enterprise Moreover , the fact that the Respondents agreed on
September 25 to place employees on the payrolls of the companies in a single collective-
bargaining unit provides evidence that the firms themselves regarded their operations
as unitary in nature , at least for the purposes of their labor - relations policies. In any
event, quite apart from the election agreement , the integrated character of the Respondent's
operations warrants a finding that they bear joint and several responsibility for the conduct
of Loerke and Fischak. x Accordingly . I find that , as a result of Darr's discharge, both
Respondents violated Section 8 (a) (1) and 8 (a) (3) of the Act.
D. The alleged discharge of Clara P. Ferrill
Ferrill began her employment with Glass Fiber about April 1. 1951, and resigned on
November 5, 1951, under circumstances which will be described below. Fischak was her
foreman . His employment was terminated on October 30, 1951, and he was succeeded by
Ellis who thereafter supervised Ferrill and assigned work to her.
MHill Transportation Company, 75 NLRB 1203 , enforced Dec. 7, 1948 , Docket No. 1203
(C. A. 1); Don Juan Co., Inc., 79 NLRB 154; N. L. R. B. v. Federal Engineering Co., 153 F.
2d 233 (C. A. 6); N. L. R. B. v. Condenser Corporation, 128 F. 2d 67 (C. A. 3); The Red Rock
Company, 84 NLRB 521, enforcement denied on this aspect, 187 F. 2d 76 (C. A. 5). See,
also, N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261. The decision of the Fifth
Circuit in The Red Rock case is to the contrary, but it does not appear to be in accord with
the weight of authority.
GLASS FIBER MOULDING COMPANY 405
Sometime before Ferrill resigned, Ellis commenced a practice of watching her during
much of each day, and he continued such conduct until she resigned (Ferrill estimated that
Ellis began the practice about 2 weeks before her resignation) He would take up a position
behind or to the side of Ferrill at distances variously estimated by witnesses as ranging
from 6 to 17 feet and focus his gaze upon her. It was necessary for Ferrill from time to
time to move from one place to another in the plant for the performance of her duties and
on such occasions Ellis would move with her and take up a position from which he would
continue to watch her. Several days after Ellis commenced his practice, Ferrill began to
get a "a little bit nervous." As he had said nothing to her, she "turned around asked him
if he was having fun " His only reply was that he "was having fun." Ellis did not criticize
her work at any time prior to her resignation No supervisor had ever engaged in such
conduct before.
The effect upon Ferrill, as she described it, was that she became"nervous and afraid I
was going to make a mistake " She testified; "I couldn't take this constant watching all the
time. It was ruining my home life and ruining my eating and everything. I was all tied up in
knots." On November 5, she submitted her resignation in the form of a note reading: "I,
Clara P. Ferrill, hereby resign my employment with Glass Fiber Moulding Company for
personal reasons."
The findings made above with respect to Ellis' conduct do not rest upon Ferrill's testi-
mony alone. Her testimony is substantiated by that of others who worked near her and were
in a position to observe what went on. There are some differences in the testimony bearing
on the duration of the period of Ellis' behavior, the length of time that he would devote on
a given day to watching Ferrill, and the distance from her that Ellis would stand when he
focused his gaze upon her, but the variances are not of such a nature as to alter the con-
clusion that Ferrill's description of Ellis' conduct is substantially supported by the other
witnesses. Nor do I accord any controlling weight to the fact that Ellis' behavior antedaaed
Fischak's termination on October 30 and that evidence presented by the General Counsel
casts Ellis, during part of the period while he was watching Ferrill, in the role of foreman,
as Fischak's successor, prior to that date. It may be borne in mind that, prior to the time
when he succeeded Fischak, Ellis was identified with the management in something other
than the role of a mere employee, as witness his participation in the conversation on Sep-
tember 27 during the meeting between Darr and Loerke. The suject of the colloquy be-
tween Darr and Ellis on that occasion indicates that employees regarded Ellis as a repre-
sentative of management long before he succeeded Fischak. Thus whether Ellis began his
course of conduct before he became foreman and continued it until Ferrill's resignation
or whether it started after he succeeded Fischak and thus lasted for a shorter period than
the witnesses described is of no importance if, in fact, he did behave in the manner described
by the witnesses. The central facts to bear in mind are that Ellis was not produced as a
witness and that the Respondents offered no testimony of any kind to explain his extra-
ordinary conduct. In short, the substance of the witnesses' description of Ellis' conduct
stands uncontroverted, irrespective of the relatively minor differences in their testimony.
The Respondents, stressing the presence of the term ,personal reasons" in the resignation,
assert that the evidence at most establishes personal hostility by Ellis toward Ferrill The
short answer to that contention is that there is not a shred of evidence that Ellis' conduct
stemmed from personal hostility, but there is abundant proof that the Respondents were
deeply hostile to the organization of the plant, committed unfair labor practices to thwart
the employees' efforts at self-organization, and resorted to devious behavior to rid the plant
of Darr, another leader in the union activity. It is in that setting that Ellis' behavior requires
some explanation , and the Respondents have advanced none . Moreover, against that back-
ground, the use of the term "personal reasons" is indeed a slender reed to support a con-
clusion that Ferrill was not coerced into resigning because of her union leadership and
activity. The term is broad enough to include many reasons, including the fact that Ellis'
conduct was antiumon in character and had so affected Ferrill personally that she was forced
to resign. What is more important, the basic issue is not the construction that Ferrill put
upon Ellis' conduct, but what the motivation for his behavior was and what it was designed
to accomplish. What that motivation was must be sought not merely in a phrase used by an
employee under coercive pressure but in the record as a whole.
The Respondents also stress the fact that Ferrill lodged no complaint with Loerke. It
may be pointed out that Ellis ' functions were Loerke' s responsibility and not Ferrill's. It
was not her obligation to undertake steps to correct her supervisor 's misconduct . Signifi-
cantly, Loerke gave no testimony disavowing his complicity or acquiescence in Ellis'
behavior . Ferrill testified that she lodged no complaint with Loerke because she assumed
thy( Ellis was acting under his direction . I find her assumption in that regard to be credible,
7283230 0 - 54 - 27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particularly in the light of the evidence of Loerke's antiunion animus, and of Ferrill's
leadership in the movement to unionize the plant 35
Ferrill was not merely in the forefront of the efforts to organize the plant , but she was
the president of the Local. It may be recalled that when Loerke addressed a group of approxi-
mately 20 female employees a few days before the election , she was the only person who
spoke up and came to the defense of the Union when Loerke challenged its representative
character . Moreover , Fischak regarded her as " the head" of organizational activity in the
plant and expressed himself to that effect shortly before the election. It is thus clear that
the Respondents had a substantial awareness of her leadership status
Bearing in mind Ferrill ' s union activities , the Respondents ' knowledge of her leader-
ship role, Loerke's hostility to unionization, the evidence of his unfair labor practices,
and the failure of the Respondents to go forward with the evidence to explain Ellis' conduct,
I am convinced that Ellis' behavior toward Ferrill was caused by her union activities
and that it was no more than a device to coerce her into quitting her job . In that setting,
I cannot consider her resignation as voluntary , for to do so would frustrate the remedial
policies of the Act in short, Ellis' conduct was tantamount to a discharge of Ferrill.
Accordingly, I find that the Respondents discriminatorily discharged Ferrill on November
5, 1951, and thereby violated Section 8 (a) (1) and 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in connection
with the operations of the Respondents described in section I, above, have a close , intimate,
and substantial relation to trade , traffic, and commerce -among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
As it has been found that Respondents have engaged in unfair labor practices , it will be
recommended that the Respondents cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As it has been found that the Respondents have interfered with, restrained , and coerced
their employees in the exercise by them of rights guaranteed by Section 7 of the Act , it will
be recommended that Respondents cease and desist therefrom.
As it has been found that the Respondents have discriminated in regard to the tenure of
employment of Harry H Darr and Clara P. Ferrill, it will be recommended that the Re-
spondents offer to them immediate and full reinstatement to their respective former or
substantially equivalent positions ss without prejudice to their seniority and other rights
and privileges , and jointly and severally make them whole for any loss of pay they may
have suffered by reason of the Respondents ' discrimination against them , by payment to
each of a sum of money equal to the amount of wages such employee would have earned
from the date of said employee' s discharge, as found above, to the date of a proper offer
35Shortly before Fischak's tenure ended, Ferrill entered a hospital for a few days with
what the record suggests was a female complaint . Ellis was foreman when she returned to
work. Ferrill asked Loerke for permission to work part time until the restoration of her
strength. He gave such permission . Ferrill testified that she placed her request before
Loerke and not Ellis because she felt that Loerke would give her a "decent answer" and
Ellis, who, according to Ferrill , was uncivil to the female employees , would not. The sense
of her testimony is that she did not wish to discuss so personal a matter as her ailment
with Ellis . I am unable to draw any definitive conclusion from this, as the Respondents seem
to do, that Ellis' behavior stemmed from mere general hostility toward the female help or
that he engaged in a frolic of his own which would have been corrected upon complaint to
Loerke. The fact that Ferrill believed that she would receive considerate treatment at
Loerke's hands of a matter so personal as her ailment does not necessarily mean that she
should have assumed that Loerke had no complicity in Ellis' behavior. It is not infrequent
that individuals who are humane in their personal relationships will not hesitate to violate
the Act.
36In accordance with the Board's previous interpretation of the term , the expression
"former or substantially equivalent position " is interpreted to mean "former position
whenever possible and if such position is no longer in existence , then to a substantially
equivalent position." See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827.
TERMINAL STOi2AGE COMPANY 407
of reinstatement to such employee. Loss of pay for each employee will be computed on the
basis of each separate quarter or portion thereof during the period from the date of dis-
charge of such employee to the date of a proper offer of reinstatement . The quarterly
periods shall begin with the respective first days of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which the employee
normally would have earned in each' such quarter or portion thereof, his net earnings,
if any, in other employment during that period . Earnings in one quarter shall have no effect
upon the back-pay liability for any other quarter. sa The Respondents will be required, upon
reasonable request, to make available to the Board and its agents all records pertinent
to an analysis of the amount due as back pay and to the reinstatement recommended herein.
Upon the basis of the foregoing findings of fact , and upon the entire record in these pro-
ceedings, I make the following:
CONCLUSIONS OF LAW
1. American Federation of Labor is a labor organization within the meaning of Section
2 (5) of the Act.
2. By interfering with , restraining , and coercing employees , as found above, in the
exercise of rights guaranteed to them by Section 7 of the Act, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
3. By discriminating in regard to the tenure of employment of Harry H. Darr and Clara
P. Ferrill , thereby discouraging membership in a labor organization , the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Sections 2 (6) and 2 (7) of the Act.
[ Recommendations omitted from publication.]
37See Crossett Lumber Company, 8 NLRB 440 for a construction of "net earnings."
38 F. W. Woolworth Company, 90 NLRB 289.
TERMINAL STORAGE COMPANY, Petitioner and CHAUF-
FEURS, TEAMSTERS AND HELPERS, GENERAL LOCAL
NO. 200, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL. Case No. 13-RM-151. April Z7, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Joseph Cohen,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent
employees of the Employer.
3. The Employer, which is engaged in warehousing and
public cold-storage operations in Milwaukee, Wisconsin, re-
quests that an election be held among all of its employees, con-
tending that these employees constitute a separate appropriate
unit. The Union contends that the only appropriate unit is a
multiemployer unit of employees of all employer members of
104 NLRB No. 54.