Jero Steel Treating, Inc.

National Labor Relations Board - Board Decisions

May 19, 1970

182 N.L.R.B. 522 (N.L.R.B. 1970)

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jero Steel Treating , Inc. and Truck Drivers, Oil Drivers,
Filling Station and Platform Workers Union Local 705,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
13-CA-8407
May 19, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On February 20, 1969, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had violated Section
8(a)(1),(3), and (5) of the National Labor Relations Act,
as amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to the Decision and
a supporting brief and General Counsel filed a "Motion
to Disregard Respondent's Exceptions," and a brief
in support of the Trial Examiner's Decision.
On July 7, 1969, the Board issued an order reopening
record and remanding proceeding to Regional Director
for further hearing before Trial Examiner Blackburn
on certain issues raised by Respondent's exceptions
to the Trial Examiner' s findings concerning (a) the com-
position of the appropriate unit described in the com-
plaint's 8(a)(5) allegations and (b) the majority status
of the Charging Union in the appropriate unit . Pursuant
to that order a further hearing was conducted before
the Trial Examiner on August 13 and September 23,
1969. On October 29, 1969, the Trial Examiner issued
his attached Supplemental Decision in which he resolved
the unit composition and majority issues remanded to
him and, on the record as a whole, reaffirmed his earlier
conclusions concerning Respondent's violations of Sec-
tion 8(a)(1),(3), and (5) of the Act. Accordingly, the
Trial Examiner recommended that the Board issue the
Recommended Order contained in his Decision of Febru-
ary 20, 1969. Thereafter Respondent filed exceptions
and the Charging Party filed cross-exceptions to the
Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three- member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the entire record in this
case, including the evidence adduced at both hearings,
the Trial Examiner's Decision and Supplemental Deci-
sion, the exceptions, cross-exceptions and briefs, and
hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, as hereinafter modified.
Contrary to the Trial Examiner, we find that Respond-
ent did not violate Section 8(a)(5) and (1) of the Act,
as alleged, by refusing to accede to the Union's April
26, 1968, recognition demand, since in our opinion,
the record does not adequately establish the Union's
status as the majority representative of the employees
in the appropriate unit at the time of the refusal. Our
reasons follow:
The Trial Examiner found, and we agree , that the
appropriate unit encompasses all nonsupervisory produc-
tion and maintenance employees including truckdrivers;
that there were 31 employees in that unit as of April
26, 1968; and that the Union had in its possession
valid authorization cards signed by 15 of these 31 employ-
ees as of that date. The Trial Examiner further found,
and we agree , that an additional authorization card pur-
portedly signed by employee Angelo Mercado, and iden-
tified as General Counsel's Exhibit 4-M, was not in
fact signed by Mercado and could not therefore be
relied upon in resolving the issue of the Union's numeri-
cal majority. However, the Trial Examiner also found,
on the basis of certain testimony by Mercado, that
Mercado had signified his intent to join the Union by
signing a blank piece of paper. The Trial Examiner
therefore concluded that the Union in fact represented
16 employees out of the 31 in the unit when it demanded
recognition on April 26, 1968. We do not adopt the
Trial Examiner's finding and conclusion in this respect.
We regard Mercado's testimony on this point-relevant
portions of which are quoted in the margin-as too
confusing and equivocal to constitute proof of Mercado's
designation of the Union as his representative on or
before April 26, 1968.' We hold, accordingly, that the
Union has failed to establish that it enjoyed majority
status when it requested and was refused recognition.
It follows that the complaint's allegation that Respondent
violated Section 8(a)(5) of the Act must be, and it
hereby is, dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner with the following modifica-
tions:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Kinley Wallace and to Walter Willis
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to any seniority or
Mercado testified in part as follows
Q Is that your signature9 [on GC's Exhibit 4-M,]
A I tell you that is my name
Q Is that your signature9
A. It is my name and address , but I didn't sign the paper
like that * * * *
Q. What did Mr Cisero [Union Agent] say to you and what
did you say to him9
A If I wanted to join the union, sign this piece of paper
But it wasn't a paper like that, that I can tell you
Q. Did you sign this paper, though9
A Not a paper-This got my name on it, but it's not like
this
Q But that's your signature9
A Right It was lust a plain piece of paper.
182 NLRB No. 75
JERO STEEL TREATING, INC. 523 '
other rights and privileges previously enjoyed and make
ach whole for any loss of pay suffered as a result
et forth in the Section entitled 'The Remedy.' "
2. Delete paragraphs 1(c) and 2(d) of the Order and
enumber the paragraphs presently numbered 1(d) and
(e).
3. Delete the last full indented paragraph of the
kppendix together with the description of the unit as
herein contained.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: heard
his case, pursuant to due notice, in Chicago, Illinois,
to December 3, 4, and 5, 1968.' It arose on April
6 when Truck Drivers, Oil Drivers, Filling Station
and Platform Workers Union, Local 705, International
3rotherhood of Teamsters, Chauffeurs, Warehousemen
ind Helpers of America, referred to herein as the Charg-
ng Party or the Union, filed an unfair labor practice
.barge against Jero Steel Treating, Inc., referred to
Ierein as Respondent. On the basis of that charge,
he General Counsel of the National Labor Relations
3oard, by the Regional Director for Region 13 (Chicago,
Ilinois), issued a complaint against Respondent on Sep-
ember 30 in which he alleged that Respondent had
'iolated Section 8(a)(1),(3), and (5) of the National Labor
telations Act, as amended.
Respondent's answer to the complaint, filed on Octo-
ler 10, denies the commission of any unfair labor prac-
ices. On November 12 Respondent filed a motion to
tay the hearing herein "until such time as the Employees
laimed as an appropriate bargaining unit by the Union
,ave had an opportunity to participate in a Union repre-
entation election either agreed to by the parties herein
,r directed by the Board." On November 18 the Regional
)irector for Region 13 denied Respondent's motion on
he ground that "there is no question concerning repre-
entation in this matter . . . the petition [filed by
tespondent on November 12 in Case 13-RM-942] having
,een dismissed . . ." simultaneously with issuance of
he order denying Respondent ' s motion herein. At the
)pening of the hearing before me on the morning of
December 3, Respondent moved for a continuance on
the ground that its request, filed November 27, for
Board review of the Regional Director's actions in this
case and Case 13-RM-942 was pending. I denied the
motion. On December 3 the Board denied Respondent's
request for review, a fact which became known at
the hearing on December 4. The issues litigated before
me were: (1) Did Respondent violate Section 8(a)(3)
and (1) by terminating the employment of Kinley Wallace
and Walter Willis for union activities; (2) did Respondent
violate Section 8(a)(1) in a conversation between its
executive vice president and one of its employees; and
(3) did Respondent violate Section 8(a)(5) and (1), under
' All dates are 1968, unless otherwise specified
the so-called Joy Silk Mills theory,2 by refusing to recog-
nize and bargain with the Charging Party as the represent-
ative of its production and maintenance employees.
Respondent's motion to dismiss, which I took under
advisement at the close of the hearing, is disposed
of by my conclusions herein.
All parties appeared at the hearing and were given
full opportunity to participate, to adduce relevant evi-
dence, to examine and cross-examine witnesses, to argue
orally, and to file briefs.
Upon the entire record,3 including briefs filed by
Respondent, the General Counsel, and the Charging
Party, and from my observation of the demeanor of
the witnesses while testifying under oath, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation , is engaged in
the business of heat treating steel products at its plant
in Skokie , Illinois. Its annual indirect outflow exceeds
$50,000 . On the basis of these admitted facts, I find
that Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Respondent's business suffered a decline in the latter
part of 1967. In the first 4 months of 1967 it showed
a net profit of $35,802.22. By the end of the year,
however, its profit for the entire year had shrunk to
only $22,267.02. Consequently, in November 1967 Robert
Michaels was brought in as executive vice president
to straighten out the situation.4 In January and February
Respondent suffered an additional loss of $20,971.29.
March showed a profit of $7,102.48; April, a loss of
$633.10.
2 Joy Silk Mills, Inc , 85 NLRB 1263, enfd as modified 185 F 2d
732 (C.A D C ), cert denied 341 U S 914
3 The following corrections in the record are ordered P 91, I 17-
- insert "4-D" after "Exhibits" so that line reads " Exhibits 4-
D, H, and I are "P 271, I 6-substitute "Walter Marecki" for "he."
With respect to the former correction , the General Counsel identified
his exhibits 4-D, 4-H , and 4-I at one time on page 86-A and offered
them into evidence as a group on p 89 In ruling on his offer on
p 91, I inadvertently neglected to mention 4-D with 4 -H and 4-I
With respect to the latter, internal evidence makes evident the fact
that interrogation of the witness switched from questions about the
duties of employee Walter Descher to Walter Marecki at that point
' He left in July 1968 when Respondent could no longer afford
his services.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kinley Wallace was hired by Respondent in October
1962 at an hourly rate of $1 50 In October 1967 his
rate was increased from $2 65 to $2 75 an hour and
he was given the title of foreman On Friday, April
12, Michaels demoted him because of dissatisfaction
with the way Wallace was carrying out his supervisory
duties On April 13 Respondent posted a notice on
its bulletin board which reads, in pertinent part
NOTICE To All Supervisors & Production Employees
As of Monday April 15, 1968
1 Kinley Wallace asked to be relived [sic] of
any supervisory" position and responsibility He
is now an operator 1st shift
James Jerousek Jr
General Manager
Walter Willis was first hired by Respondent in January
1966 He worked partly as a truckdriver and partly
in the service department until he quit in April 1967,
advancing from a starting wage rate of $2 an hour
to $2 80 He was rehired on January 23 at $2 80 an
hour and worked in the service department On April
7 he received a raise to $2 90 Other employees received
an increase at the same time Allen Zager, who also
worked in the service department, was hired by Respond-
ent after January 1966 but before January 1968
In early April Willis contacted the Charging Party
about representing Respondent 's employees It was
arranged that an organizer would meet with employees
at the home of Wallace on the afternoon of Sunday,
April 14 Nine employees" attended the meeting All
nine signed authorization cards and turned them into
the organizer, George Gilmer On Gilmer's instructions
they did not date the cards
The next day Willis and Wallace tried to sign up
Dennis Roberts, an employee, at the plant Roberts
refused He told Robert Erndahl, another employee,
about Willis' and Wallace's effort to get him to sign
an authorization card and asked him whether he had
been invited to the meeting Erndahl relayed this informa
tion to James Jerousek, Jr , Respondent's general manag-
' The General Counsel contends that Wallace was never a supervisor
within the meaning of the Act He would distinguish Wallace fFom
three men who were employed by Respondent on April 26 the day
the Charging Party demanded recognition whose names are followed
by the notation Foreman on a list of employees as of that date
and who all parties agree are supervisors within the meaning of the
Act I can find no basis in the record for making the distinction
General Counsel seeks However the fact that Wallace was a supervisor
within the meaning of the Act from October 1%7 until April 12 has
no significance It is undisputed that he was a rank and file employee
from April 13 until 24 the date of his discharge Therefore Respondent
cannot defend that aspect of this case on the ground that supervisors
are not within the protection of the Act
M1 Wallace Willis Angel Feliciano Antonio Feliciano Frank Cisero
Willie Brooks McArthur Brooks Herbert Tribble and M C Poole
er7 and son of its president, including the fact that
meeting had been held at Wallace's home
On April 15, at work, Wallace signed up Augustin
David and James Watts On Tuesday, April 16, at work,
Willis signed up Columbus Johnson, Leon Vasquez,
and Anthony Marusich, Wallace signed up Dionisio
David The six additional cards signed by employees
on April 15 and 16 were also turned in to Gilmer
The General Counsel relies on the 15 cards signed by
Respondent's employees on April 14, 15, and 16 to
prove the Union's majority None of them bears a
date Four of them contain no entry in the blank following
the printed words "I do hereby direct and
authorize my employer " On several others, the words
"Jero Steel Treating' were inserted by a person other
than the employee who signed the card
Sometime during the week of April 14, Michaels
called Willie Brooks into his office and asked him whether
anything was wrong, pointing out that Brooks had been
acting sort of funny In the ensuing discussion Michaels
asked Brooks whether the men had just had a meeting
in the dressing room Brooks replied that they had
only been changing clothes in order to go to work
Michaels asked Brooks if he had a union card Brooks
replied no Michaels asked Brooks if any of the other
men had one Brooks replied, "Not that I know of
Why don't you ask them9""
During his tenure as executive vice president Michaels
prepared several lists of employees to be laid off in
order to improve Respondent's economic position Prior
to April 24 none of these recommendations was ever
acted on On April 22 Michaels drafted and sent to
Jerousek, Sr , and Jr a memorandum which reads
Reduction of labor force effective on Friday April
26, 1968, at the end of each shift In the following
order as required
Kindley [sic] Wallace
Herb Tribble
Allen Zager
Walter Willis
Frank Cisero
David Dionisio [sic]
Art Brooks
M C Poole
Augie David
Leon Vasquez
' While conceding Jerousek Jr s title Respondent s counsel contends
that Respondent is not bound by his actions or his knowledge because
he s a young man and I don t think he has the authority to make
decisions as Mr Jerousek Sr who is the owner of the company
and Mr Michaels His father testified that Jerousek Jr although
subordinate to Michaels supervised the foremen Also Michaels testified
that Jerousek Jr made the decision to retain Wallace as a rank
and file employee when Michaels demoted him from foreman Conse
quently I find that Jerousek Jr is an agent of Respondent and a
supervisor within the meaning of the Act
" I have credited Willie Brooks as to this conversation over Michaels
general denial that he ever asked Brooks any questions about union
activities after admitting that he had a conversation with Brooks in
which he inquired whether anything was wrong
JERO STEEL TREATING, INC.
Allen Zager is the only employee named in this memoran-
dum who did not sign a union authorization card on
April 14, 15, or 16. Respondent hired one employee
on each of the following dates in April: 8, 9, l1 (a
part-time employee), 16, 23, and 24. ' The names of
the men hired on April 9, 11, and 23 do not appear
on the list of Respondent's employees as of April 26:
The names of the men hired on April 8, 16, and 24
do. Subsequently, Respondent hired one man each in
May, June, and July.
James Jerousek, Sr., overruled Michaels' decision
to lay off 10 employees at the end of their shifts on
April 26. Instead, he decided to terminate the employ-
ment of Zager, Wallace, and Willis on April 24. Wallace
was, Respondent's third oldest employee in continuous
service. There are no details in the record as to the
termination of Allen Zager other than the fact that
he was laid off on April 24 and recalled in late, May.
The terminations of Kinley Wallace and Walter Willis
took place as follows:
A couple of hours after Wallace reported for work
on the morning of April 24, James Jerousek, Jr., took
him to Jerousek, Jr.,'s office. Jerousek, Jr., opened
the conversation by telling Wallace that he had gotten
chewed out for not cutting Wallace's pay when Wallace
was demoted from foreman. Wallace replied that the
$2.75 an hour he received was not supervisor's pay.
At that point Michaels opened the door and walked
in. Jerousek, Jr., told Michaels that he had just told
Wallace about getting chewed out for not cutting Wallace's
pay. Michaels said , "I told you, Junior, that you
can't take this man off the supervisor's job and put
him back in the shop. I told you to let him go when
he refused the job. He's not happy." Wallace protested
that he was happy and wanted to keep his job. Michaels
told Wallace that Wallace knew it would be best for
him to go. Michaels then left the room. Wallace asked
Jerousek, Jr., what he thought. Jerousek, Jr., said he
agreed with Michaels.
Wallace left the office, followed by Jerousek, Jr.
He stopped at Angel Feliciano ' s work station long enough
to get the Union's telephone number. He then went
to the locker room to change his clothes. Jerousek,
Jr., waited in the locker room while he did so. When
he had finished, Jerousek, Jr., took him to the service
department to wait for his check. A few minutes later
Jerousek, Jr., brought Wallace his check and escorted
him to the door. He was paid for 8 hours' work on
April 24. His personnel card bears the notation "4-24-68
Laid off."
Willis received a telephone call at home from Mrs.
Jerousek, Sr., on the evening of April 23. She asked
whether Willis was coming to work the next day. Willis
reminded her that he had arranged some time ago to
take the day off because he had to go to court. Mrs.
Jerousek asked him to come to the plant if he possibly
could.
Willis went to court as scheduled April 24 and did
not get to Respondent's plant at all that day. A couple
of hours after he reported for work on the morning
of April 25, Jerousek, Jr., told him to report to Micahels
525-
in Michaels' office. Willis,did so. Michaels told Willis
that Respondent had been forced to let Zager go because
of lack of work and was going to have to do the.
same thing to Willis. Willis protested that he knew.
there was, lots of work and he could, not understand
how Respondent could be getting rid of anybody for
lack of work under the circumstances. Michaels said,
"Well, you know we don't keep any secrets around
here." Willis said, "What do you mean, secrets?"
Michael said, "You know what you and the other fellows
are doing."" Willis asked, "What fellows9" Michaels
changed the subject , pointing out that Respondent had
expected him to come in the day before and had even
paid him for the entire day. He said that April 24
would count as pay for the few hours work Willis
had put in that morning. Jerousek, Jr.," was present
for part of this interview. Willis received a check and
left. He was paid for 8 hours work on April 24. He
received no pay for April 25. His personnel card bears
the notation "4-24-68 Laid off." His timecard bears
a notation in the column for April 24 "Paid 8 hours
(off on personal business)." It bears a notation in the
column for April 25 "Laid off until business improves."
Willis received unemployment compensation from the
State of Illinois for the period from April 28, the date
he applied for it, until May 25, the date on which
he got another job. However, he,did not receive this
benefit until August or September '1
Number of orders received rather than their dollar
value is . the significant statistic in Respondent ' s determi-
nation of how much work it has on hand. In ,the period
just prior to Willis' layoff, Respondent received the
following number of orders: During week ending March
3, 715; March 10, 779; March 17, 723, March 24, 753;
March 31, 750;. April 7, 720; April 14, 634; April 21,
749; April 28, 657. The day-by-day record from which
these figures are taken indicates that , in the latter week,
work orders "in" dropped off slightly on Thursday,
April 25, and substantially,on Friday, April 26.
On the morning of April 26. Peter Janopoulos and
George Gilmer, organizers for the Union, visited
Respondent's plant. They had with them the 15 authoriza-
tion cards described above plus one more allegedly
" I have credited Willis as to this remark over Michaels ' denial
that he made any such specific statement or referred in any way,
either explicitly or implicitly , to the union activities of Respondent's
employees Michaels' account of the termination interview was couched
in generalities He stated at one point that he could not recall what
Willis said His testimony creates the impression that Willis did not
say anything Willis' testimony , on the other hand , was sharp and
specific It impressed me as a credible account of the sort of exchange
which would have taken place between the two men I observed on
the witness stand under the circumstances which admittedly prevailed
at the time
'" James Jerousek , Jr , 'was not called as a witness in the hearing
before me '
11 Although no statute or regulation has been brought to my attention,
I have accepted the explanation of Respondent ' s counsel that the delay
was caused by the fact that Willis was compensated under procedures
applicable to laid off employees rather than those applicable to discharged
employees I attach no significance to the point Proceedings before
State agencies concerned with administering unemployment compensa-
tion statutes are not binding on the Board W K Manufacturing
Company, 161 NLRB 1185
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by an employee of Respondent which General
Counsel was unable to authenticate during the hearing
before me. They saw James Jerousek, Sr. Janopoulos
acted as spokesman.
Janopoulos told Jerousek, Sr., that the Union repre-
sented an overwhelming majority of Respondent's
employees, demanded recognition, and wanted to sit
down with him forthwith to conduct a card-check recog-
nition and to negotiate a contract. As he spoke Janopou-
los fanned the cards in his hand like a deck of playing
cards. Jerousek, Sr., glanced at them. However, he
did not take them into his hands, touch them in any
way, count them, read them, or inspect them closely
enough to determine how many cards Janopoulos was
holding or whose names appeared on them.12 Jerousek,
Sr., referred Janopoulos to Respondent's attorney. There
was a discussion of who represented Respondent and
what his telephone number was. Janopoulos continued
to try to persuade Jerousek, Sr., that Respondent did
not need an attorney and that they could settle the
matter between them then and there. In the course
of this discussion Janopoulos told Jerousek, Sr., that
Respondent had broken the law by discharging two
employees for engaging in union activities and warned
him against similar conduct. Jerousek, Sr., protested
Respondent's innocence and refused to discuss the mat-
ter further. Janopoulos told Jerousek, Sr., that the Union
would take the matter to the Labor Board.
Janopoulos and Gilmer went from Respondent's plant
to the Board's Chicago office, where they filed the
charge which gave rise to this case. A couple of days
later and again a couple of weeks later Janopoulos
contacted Respondent's attorney by telephone as Jerou-
sek, Sr., had requested. The attorney declined to recog-
nize the Union, stating that Respondent could not afford
a union.
On the morning of April 26 Respondent had in its
employ 25 production and maintenance employees. There
is no dispute that 22 of these are properly includable
in a unit of such employees. The General Counsel would
exclude the other three on various grounds. Respondent
would include them. The facts with respect to each
are as follows:
Walter Marecki, the service manager , 'was the third
man, along with Willis and Zager, in the service depart-
ment prior to April 24. The service department writes
up orders and receives and ships the materials which
Respondent's customers send to its plant to be put
through a hardening process. Additionally, employees
in that department serve the customers by checking
on the status of their orders when they telephone from
time to time to inquire about them. This chore frequently
takes service department employees into the production
areas of the plant and brings them into contact with
other production 13 employees. Marecki is hourly paid
" These details, unimportant in my view of this case, are the only
real disagreement between Janopoulos and Jerousek, Sr , in their
accounts of what happened on the morning of April 26 I,have credited
Jerousek, Sr I think Janopoulos got carried away into trying to make
a good case better when he was interrogated at length on this point.
3 A list, prepared by Respondent, of Respondent's employees as
and receives overtime pay for overtime work. His rate
is approximately $3.10.
Edmund McHugh is an inspector. It is his job to
inspect the work turned out by other production13
employees, principally through the use of a machine
known as a Rockwell Hardness Tester. He, too, is hourly
paid and receives overtime. His rate is approximately
$3. Approximately $2.60 an hour is on the high side
of the range of hourly rates of pay received by most
production and maintenance employees.
Walter Descher is an expediter. He works from a
desk in the service department. It is his job to follow
orders as they are handled in the plant to make sure
that they are processed expeditiously. His duties bring
him into frequent contact with other production13
employees. He is salaried and does not receive any
overtime pay because, apparently, he does not work
any overtime hours. The record does not reveal the
amount of his salary.
B. Contentions and Conclusions
1. The 8(a)(3)
Respondent contends that Walter Willis was laid off
for economic reasons and that Kinley Wallace was laid
off for incompetence. I find that both were discharged"
for engaging in union activities in violation of Section
8(a)(3) and (1) of the Act.
Respondent's economic defense fails for a number
of reasons. Its own records reveal that its situation
brightened in March and the first part of April. After
substantial losses beginning in late 1967 and running
through January and February 1968, March showed 'a
profit of $7,102.48. This trend continued into middle
April, the period when Respondent's employees began
to try to organize themselves. The final figure for April,
a figure which would not yet have been available to
Jerousek, Sr., and Michaels when the decision was
made to get rid of Wallace and Willis, was a very
modest loss of $633.10, attributable to a sudden dip
in orders near the end of the month. Therefore, the
explanation which Respondent relies on to justify reduc-
ing its service department from three men to one rests
on a shaky basic premise. When the figures are weighed
against the fact that Jerousek, Sr., did not find times
so bad that he could hot overrule Michaels' recommenda-
tion to get rid of 10 employees out of a total work
force of 27 and the fact that Respondent hired a number
of new employees during this same period, the argument
comes toppling to the ground. Finally, it is rendered
of April 26 which is in evidence categorizes employees as either "produc-
tion " or "maintenance ." Marecki, McHugh , and Descher are all listed
among the "production " employees
i' As far as I am concerned, an employee is "laid off" when he
has, for some reasonable period of time , some reasonable expectation
of recall to his former job with his status unimpaired , an employee
is "discharged" when he has no such expectation Despite Respondent's
protestations to the contrary with respect to Willis , I find that Respondent
had no intention of ever recalling either Wallace or Willis when it
terminated their employment on April 24 and 25, respectively.
JERO STEEL TREATING, INC.
a death blow by the fact that 9 . of the 10 men named
in Michaels ' April 22 memorandum to the Jerouseks
had signed authorization cards for the Union.
Respondent relies on the fact that Allen Zager was
laid off from the service department along with Willis
and recalled a month later rather than Willis because
of his greater seniority . This argument , also, will not
bear close scrutiny . There is no evidence that Respondent
adheres to any strict seniority , system . Therefore, the
fact that Zager was hired after the beginning of Willis'
first period of employment but before the beginning
of his second did not give him a clear seniority right
to be recalled before Willis when Respondent found
it needed a second man in the service department.
If the shoe were on the other foot and the General
Counsel were arguing for Zager as against Willis,
Respondent could with equal logic argue that Willis'
first period of employment gave him seniority rights
over Zager even though Willis had quit and been rehired
as a new employee. There is greater significance in
the fact that Zager was the 1 man among the 10 named
in Michaels ' memorandum who had not signed an author-
ization card and in the fact that recalling him rather
than Willis brought back an antiunion rather than a
prounion employee. Also, Respondent concedes that
its production employees are regularly transferred from
job to job , but it justifies hiring new employees in
the period just before and just after discharging Willis
rather than transferring Willis to other duties on the
ground that Willis was not trained for the other jobs.
However , during his first period of employment Willis
worked for a short period as a "straightener ." There
is no evidence that Willis ' work as a straightener was
unsatisfactory , that Willis was not capable of being
trained for other jobs , or that new employees hired
in the period when Willis could have been transferred
rather than discharged did not have to be trained by
Respondent . Therefore , I find that Michaels included
Zager among the nine prounion employees he decided
to get rid of when he wrote his memorandum in order
to disguise his antiunion motive in recommending a
reduction in force . I find that Jerousek , Sr., included
Zager with Wallace and Willis when he made the final
decision in order to disguise his real motive of getting
rid of the two leaders in the organizing campaign.
With respect to Wallace's alleged incompetency, the
record shows that any dissatisfaction Michaels or the
Jerouseks may have had with his work related to the
manner in which he had performed as a supervisor,
not the manner in which he was performing as a rank-
and-file employee after his demotion. The only evidence
which can be construed as falling in the latter period
is an admission by Wallace on cross-examination that
he had dropped " some parts behind the bench." On
the other hand , Michaels stated his reasons for including
Wallace ' s name in his memorandum as follows:
A. Why was Kinley Wallace's name placed on
this list?
A. In my opinion Kinley Wallace was just no
good as an employee.
Q. And you base that upon what?
527
A. His attitude, his ability.
Q. Had you had any incidents that would indicate
work ability?
A. Well, he had the title as foreman on the
day shift, and I had occasion to talk to this man
once or twice a week. He needed constant supervi-
sion.
Q. And would you express an opinion as to
Mr. Wallace's ability to be foreman of this opera-
tion, if you have one?
A. No good.
Q. And what was the reason and facts upon
which you base that conclusion?
A. His ability to handle the shop in general,
the people, his knowledge of the business, his
attitude, aggressiveness.
Jerousek, Sr., also testified that it was Wallace's short-
comings as a supervisor which made him unhappy with
Wallace, thus:
Q. Now, why did you identify Mr. Kinley Wal-
lace as one of those who would be laid off?
A. Well, Wallace, in my estimation, wasn't a
real good employee. '
Q. And wherein was he deficient?
A. He just didn't seem to work in as far as
the work is concerned, as far as supervision is
concerned, and people were checking around trying
to find jobs. He was usually off somewhere not
getting in and helping where he really should.
Q. So it was more efficiency reasons you named
him?
A. That 's right.
But Wallace was not discharged from a foreman's job.
He was discharged only after he had been back in
the ranks for approximately 10 days, doing the work
of a rank-and-file employee without criticism. Some
more persuasive evidence of Wallace's alleged incompe-
tency than Respondent was able to adduce is required
to offset the fact that Respondent found Wallace a
satisfactory employee for nearly 6 years before it sudden-
ly found him unsatisfactory when he sought to join
the Union.
In addition, Respondent introduced as part of its
defense evidence that it had from time to time received
notices from Wallace's creditors of their intentions to
make demands upon it under wage assignments executed
by Wallace. When this subject was raised, Respondent
justified its relevance on the ground that it related to
the total picture of why Respondent decided to discharge
Wallace. Yet, as the portion of Jerousek, Sr.'s testimony
just quoted makes clear, Wallace's problems with credi-
tors over the years were no part of Respondent's ostensi-
ble reason for discharging him. And the fact is equally
uncontroverted that other employees, namely Willie
Brooks, had troubles as great if not greater than Wallace,
yet Michaels testified that Brooks was not discharged
because "he was a terrific man."
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The affirmative evidence presented by the General
Counsel to establish Respondent ' s discriminatory motive
for discharging Walter Willis and Kinley Wallace is
overwhelming . Willis and Wallace led the campaign to
organize Respondent ' s employees . Willis made the first
contact with the Union . The key meeting was held
at Wallace ' s house . Between them , Wallace and Willis
signed up all the men who did not sign cards at the
meeting . Respondent learned of the organizing campaign
and of Wallace ' s and Willis ' role almost immediately
when Erndahl told Jerousek , Jr., what was going on.
Less than 10 days later Wallace and Willis were dis-
charged precipitately at a time when no valid economic
or noneconomic reason existed for getting rid of them.
Therefore , based on the record considered as a whole
and relying especially on the timing of the discharges
and the weak and shifting nature of the defenses advanced
by Respondent , I find that Respondent violated Section
8(a)(3) and ( 1) of the Act when it discharged Kinley
Wallace on April 24 and Walter Willis on April 25
in order to discourage the union activities of its employ-
ees.
2. The 8(a)(1)
Michaels asked Willie Brooks whether the men had
just held a meeting in the' locker room and whether
he or any of the other men had a union card . Although
this is the only incident of independent 8(a)(1) alleged
by the General Counsel in his complaint, it is not an
isolated incident since it took place in the context of
Respondent ' s other unfair labor practices . I find , there-
fore , that Respondent violated Section 8(a)(1) of the
Act by interrogating an employee about the union activi-
ties of its employees. Regency Electronics , Inc., 169
NLRB 223.'-5
3. The 8(a)(5)
Respondent ' s answer admits the appropriateness of
the production and maintenance unit alleged in the com-
plaint but denies majority and demand . However , neither
issue is raised in Respondent ' s brief and they have,
I presume , been abandoned as serious defenses to the
General Counsel ' s argument that Respondent has com-
mitted a Joy Silk Mills violation " of Section 8(a)(5)
" Respondent cites this case in its brief as standing for the proposition
that asking an employee if she had any union cards does not violate
the Act , apparently a misreading of page 10 of the Trial Examiner's
Decision Other cases cited by Respondent are inapposite since Michaels'
interrogation of Brooks, under all the circumstances of this case, was
not an isolated incident and was clearly coercive
"` Joy Silk Mills, Inc , supra , The Charging Party goes further It
argues that, even absent any findings that Respondent violated Sec.
8(a)(1) and (3) of the Act, a violation of 8(a)(5) should be found
under the rationale of Retail Clerks Union , Local 1179 v N.L R B ,
376 F 2d 186 (C A 9), as acquiesced in by the Board in John P
Serpa, Inc., 166 NLRB 336 In my opinion , the key sentence in the
court ' s opinion in Serpa is , " However, when the employer makes
his own examination of the authorization cards and is convinced of
their identity" and validity , as the Trial Examiner found that Serpa
had done, a subsequent refusal to recognize the union is adequate
affirmative evidence of a lack of good faith doubt as to majority
status " I have specifically found, as set forth under Facts above,
of the Act . In any event , they do not require extensive
consideration for both are simple and based on uncontro-
verted facts.
As to the size of the unit , as of April 26 there
were 22 men who all parties agree should be in. Since
I have found that Kinley Wallace and Walter Willis
were illegally discharged just prior to April 26, they
must be added , bringing the total to 24. The only disputes
concern Walter Marecki , the service manager , Edmund
McHugh , the inspector , and Walter Descher , the expedi-
ter. The General Counsel would exclude all three on
the ground that they lack a community of interest with
production and maintenance employees . He advances
as an additional ground for excluding Marecki the conten-
tion that he is a supervisor within the meaning of the
Act. There is no basis in the record for excluding
any of these men. While Respondent admits that Marecki
is the service "manager ," there is no evidence that
his relationship with other employees in the service
department , when there are other employees in the
service department , gives him any authority or responsi-
bility greater than the routine carrying out of routine
duties. If any significance is attached to the fact that
his job is mainly a paper and pencil one, it is clear
that his clerical duties relate to the plant and not to
the office. Insofar as the community of interest argument
relates to all three men, their duties are an integral
part of Respondent ' s production process and all three
come into frequent contact with other production and
maintenance employees . The lone fact that Descher,
apparently alone of all Respondent ' s production and
maintenance employees , is salaried and not hourly paid
is not sufficient to outweigh all the other factors which
establish that he, like Marecki and McHugh, has a
community of interest with production and maintenance
employees . Adding Marecki, McHugh , and Descher to
the 24 men already found in the unit , I find that Respond-
ent had 27 production and maintenance employees on
April 26.
The General Counsel managed to authenticate 15 of
the 16 cards which Janopoulos waved in front of Jerou-
sek, Sr ., on April 26 . Each is signed by one of the
27 men in the unit . The fact that they do not bear
the dates on which they were signed is immaterial.
The fact that they were signed on April 14, 15, or
16, as the case may be , is uncontroverted . The fact
that several do not name Jero Steel Treating, Inc.,
as the employer involved is immaterial . The cards autho-
rize the Union to deal with the signer ' s "employer"
on his behalf . There is no evidence that the men who
signed them had any employer other than Respondent
on the day they signed . American Beauty Baking Co.,
171 NLRB No. 98 . The Union needed only 14 valid
cards to establish its majority in a unit of 27 employees.
It had at least 15. I find, therefore , that on April 26
the Union represented a majority of Respondent's pro-
duction and maintenance employees.
that no examination sufficient to convince Jerousek, Sr , of the identity
and validity of the Charging Party's authorization cards took place
Therefore , I reject the Charging Party's alternative argument
JERO STEEL TREATING, INC.
As to 'demand, Respondent admits that Janopoulos,
on April 26, asked Jerousek, Sr. to recognize the Union
on the basis of a card check and sit down immediately
to work out a, contract. The fact that Jerousek, Sr.,
did not give Janopoulos a straight yes or no answer
but simply referred him to Respondent's attorney does
not make the words spoken by Janopoulos any less
operative as a demand for recognition. John P. Serpa,
Inc., 155 NLRB 99. It only serves to shed some light,
however dim, on Respondent's motive for rejecting the
demand since a union is entitled to an answer when
it asks for recognition.
In its brief Respondent argues that this case does
not fall within the Joy Silk Mills doctrine because:
1. There has been no effort to thwart a fair
election-no alleged unfair election-no alleged
unfair labor practice between the date of the Union
demand for recognition and the filing of Case No.
13-RM-942 by Respondent.. . .
2. Respondent took no position at the time the
Union requested recognition and referred Union
to Respondent's attorney. Immediately following
the settlement of the Board's jurisdiction Respond-
ent filed Case No. 13-RM-942.
3. There has been no rejection of the principle
of collective bargaining.
Point 2 requires some preliminary explanation. In
his complaint, the General Counsel initially based juris-
diction on an allegation that Respondent meets the
Board's direct outflow standard. Respondent's answer
denied that fact. At the opening of the hearing, a stipula-
tion was received that Respondent meets the Board's
indirect outflow standard. Respondent's brief states:
Mr. Janopoulos left the company and immediately
went down to the Board and filed the above entitled
charges (case No. 13-CA-8407) at 9:46 A.M. of
the same day [i.e., April 26]. During discussions
with the Respondents attorney subsequent to the
filing of these charges a question of the jurisdiction
of the Board over this case arose which was finally
settled by stipulation proposed by the attorney for
the board on October 24, 1968 and agreed to after
investigation by the attorney for the Respondent
on November 13, 19_68. Said stipulation was read
into the record verbatim_ . . Whereupon the
Respondent filed case 13-RM-942 at 2:08 P.M.
on November 13, 1968.
The hearing in this case was originally scheduled for
November 13. However, on October 14, at Respondent's
request, it was postponed until November 19. On Novem-
ber 12 Respondent filed a motion to stay hearing. A
copy of the petition in Case 13-RM-942 which is in
evidence indicates that it was filed by Respondent's
attorney on November 12. On November 14 the hearing
was again postponed from November 19 to December
3. From these various formal documents and the dates
they contain, and relying especially on the statement
quoted above from Respondent's brief, I gather that
Respondent sought at the last minute to extricate itself
from the threat of having to recognize and bargain
with the Union by Board fiat which the outstanding
529
complaint posed by substituting a Board election. Be
that as it may, Respondent places its main reliance
on the fact that it has not thwarted the Board's election
process but has, rather, sought to invoke that process
in order to resolve the question concerning representation
posed by the Union's demand.
If the arguments set forth in Respondent's brief are
considered seriatim, the weakness of Respondent's posi-
tion becomes manifest. First, it argues that it has not
been guilty of any effort to thwart a fair election, that
there has been no alleged unfair election. But a Board
election is not a sine qua non to a Joy Silk Mills
violation as cases so numerous no extensive citations
are required will attest. E.g., American Beauty Baking
Co., Inc., supra. Apparently Respondent has confused
the situation here with the Board's Bernel Foam doctrine.
Bernel Foam Products Co., Inc., 146 NLRB 1277. Next,
Respondent argues that all of the unfair labor practices
which I have found occurred prior to Janopoulos' visit
to Respondent's plant on April 26, a point well taken.
But, while Joy Silk Mills itself speaks in terms of an
employer faced with a demand for recognition refusing
in order to gain time and dissipate the union's majority,
later cases have clearly established that the unfair labor
practices relied on to prove the employer's bad faith
in refusing recognition need not come after the demand
in a literal sense. It is sufficient if they occur in the
context of the organizing campaign and thus are contem-
poraneous with the demand. Here, the illegal interroga-
tion of Willie Brooks took place during the week of
April 14, the discharge of Kinley Wallace • on April
24, and the discharge of Walter Willis on April 25;
all obviously events contemporaneous with the April
26 demand and thus sufficient basis for an inference
of Respondent's bad faith. American Beauty Baking,
Inc., supra; San Angelo Packing Company, 163 NLRB
842; Boot-Ster Manufacturing Company, Inc., 149 NLRB
933, affd. 361 F.2d 325 (C.A. 6). Then, Respondent
argues that it did not refuse to recognize the Charging
Party but merely postponed an answer by referring
Janopoulos to its attorney, ultimately itself trying to
resolve the question concerning recognition in a proper
manner by invoking the Board's election process. As
I have found, of course, Respondent's attorney explicitly
told Janopoulos that Respondent would not recognize
the Union when he told Janopoulos that Respondent
could not afford a Union. But even that finding is
not essential to a Joy Silk Mills violation since Jerousek,
Sr.'s action in referring Janopoulos to Respondent's
attorney on April 26 is itself a refusal to recognize.
When a union demands recognition of an employer,
it is at least entitled to an answer. John. P. Serpa,
Inc., supra.
Finally, Respondent argues that it has not rejected
the principle of collective bargaining. Disagreement with
the other points in Respondent's defense must of necessi-
ty result in disagreement with this one. Therefore, I
find that Respondent had no good-faith doubt of the
Charging Party's majority when it refused recogniton
on April 26. In reaching this finding I rely on the
violations of Section 8(a)(1) and (3) of the Act I have
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found. In addition, I rely on the factors in this case
urged on me by the Charging Party as supporting a
finding of a serpa violation, namely, the fact that Jerou-
sek, Sr., expressed no doubt of the number, authenticity,
or validity of the Union's authorization cards in his
confrontation with Janopoulos on April 26, that fact
that Jerousek, Sr., at that time shunted Janopoulos
off on Respondent's attorney, and the fact that Respond-
ent waited 7 months before filing a petition for an
election. Since Respondent acted in bad faith in refusing
the Union's demand for recognition and thereby rejected
the principle of collective bargaining, it has violated
Section 8(a)(5) of the Act.
Upon the foregoing findings of fact, and on the entire
record in these cases, I make the following:
CONCLUSIONS OF LAW
1. Jero Steel Treating, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Truck Drivers, Oil Drivers, Filling Station and
Platform Workers Union, Local 705, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its plant in Skokie, Illinois,
excluding office clerical employees, guards, and supervi-
sors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. At all times on and after April 26, 1968, the Union
has been and presently is the representative for the
purpose of collective bargaining of the employees in
the unit described above and, by virtue of Section
9(a) of the Act, has been and now is the exclusive
representative of all the employees in said unit for
the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other terms
and conditions of employment.
5. By refusing on or about April 26, 1968, and at
all times thereafter, to bargain collectively with the
Union in respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment
of the employees in the unit described above, Respondent
has refused to bargain with the above-named labor organ-
ization and thereby has violated Section 8(a)(5) and
(1) of the Act.
6. By discharging Kinley Wallace on April 24, 1968,
and by discharging Walter Willis on April 25, 1968,
Respondent has discriminated with respect to their hire
and tenure of employment, discouraging membership
in the above-named labor organization, and thereby has
violated Section 8(a)(3) and (1) of the Act.
7. By interrogating an employee about his union activi-
ties and about the union activities of other employees,
Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed
to them by Section 7 of the Act, and thereby has
violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
I have found that Respondent has discriminated
against Kinley Wallace and Walter Willis. Therefore,
I will recommend that Respondent offer each immediate
and full reinstatement to his former or substantially
equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed and
make each whole for any loss of earnings he may
have suffered as a result of his discharge by paying
to him a sum of money equal to that which he normally
would have earned as wages from the date of his dis-
charge until the date of Respondent's offer of reinstate-
ment, less his net earnings during such period, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
I will also recommend that Respondent bargain, upon
request, with the Union in respect to the rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment of its production and maintenance
employees and, if an understanding is reached, embody
such understanding in a written agreement.
Finally, since the unfair labor practices which
Respondent has committed are flagrant and exhibit a
deliberate purpose to thwart the rights of its employees,
I will recommend that it cease and desist from interfering
with those rights in any manner.
Upon the foregoing findings of fact and conclusions
of law and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Jero Steel Treating , Inc., its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees about their union activ-
ities.
(b) Discriminating against its employees in order to
discourage membership in Truck Drivers, Oil Drivers,
Filling Station and Platform Workers Union , Local 705,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or any other
labor organization.
(c) Refusing to recognize and bargain with Truck
Drivers, Oil Drivers, Filling Station and Platform Work-
ers Union , Local 705, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of
America, as the exclusive representative of its employees
in the unit found appropriate herein:
JERO STEEL TREATING, INC.
(d) In any manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Kinley Wallace and to Walter Willis imme-
diate and full reinstatement to his former or substantially
equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed and
make each whole for any loss of pay suffered as a
result of Respondent ' s discrimination against him in
the manner set forth above under "The Remedy."
(b) Notify Kinley Wallace and/or Walter Willis if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Recommended Order.
(d) Upon request, bargain collectively with Truck
Drivers, Oil Drivers Filling Station and Platform Workers
Union, Local 705, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment of the employees in the appropriate unit
described above under "Conclusions of Law" and, if
an understanding is reached, embody such understanding
in a signed agreement.
(e) Post at its plant in Skokie, Illinois , copies of
the attached notice marked "Appendix. 1117 Copies of
said notice, on forms provided by the Regional Director
for Region 13, after being duly signed by an authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
'T In the event that the Recommended Order is adopted by the
Board , the words "This notice is posted by Order of the National
Labor Relations Board after a trial at which all sides had the chance
to give evidence , the National Labor Relations Board found that we,
Jero Steel Treating, Inc , violated the National Labor Relations Act,
and ordered us to post this notice ," shall be substituted for the words
"Pursuant to the Recommended Order of a Trial Examiner 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 ," in the notice In the further event that the Board ' s Order is
enforced by a decree of the United States Court of Appeals, the
words "This notice is posted by Order of the United States Court
of Appeals" shall be substituted for the words "This notice is posted
by Order of the National Labor Relations Board."
531
(f) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."I
IN In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
Director for Region 13, in writing , within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining
or other aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT ask you questions about your
union activities.
WE WILL immediately offer to reinstate Kinley
Wallace and Walter Willis to their former or sub-
stantially equivalent jobs without any change in
the seniority or other privileges they enjoyed before
we discharged them and we will pay to them any
money they lost as a result of our discrimination
against them with interest at 6 percent.
WE WILL notify Kinley Wallace and/or Walter
Willis, if either or both of them are presently serving
in the Armed Forces of the United States, of their
right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
WE WILL recognize Truck Drivers, Oil Drivers,
Filling Station and Platform Workers Union, Local
705, International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America,
as the only collective-bargaining representative of
our employees in the bargaining unit which is:
All production and maintenance employees
employed at our plant in Skokie , Illinois,
excluding office clerical employees, guards,
and supervisors as defined in the Act.
WE WILL bargain , on request , with Truck Driv-
ers, Oil Drivers, Filling Station and Platform Work-
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers Union, Local 705 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, on wages , hours , and condi-
tions of employment, and any agreement we reach
will be put in writing and signed
All our employees are free to join or not
join Truck Drivers, Oil Drivers , Filling Station
and Platform Workers Union , Local 705, Inter-
national Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of
America, or any other labor organization
JERO STEEL TREATING,
INC
Dated By
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any othet material
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 881 U S
Courthouse and Federal Office Building , 219 South Dear-
born Street , Chicago , Illinois 60604 , Telephone
312-353-7572
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BENJAMIN K BLACKBURN , Trial Examiner I issued
my Decision in this case on February 20, 1969 In it
I found that Respondent had violated Section 8 (a)(1),
(3), and (5) of the Act My Section 8(a)(5) finding was
based , in part , on a finding that the Charging Party,
on April 26 , 1968, represented 15 employees in a unit
of 27, as evidenced by 15 authenticated authorization
cards among 16 received in evidence as General Coun-
sel's exhibits As a remedy for the refusal to bargain,
I recommended that Respondent be required to bargain,
upon request , with the Union in a unit composed of
all production and maintenance employees employed
by Respondent at its plant in Skokie , Illinois, excluding
office clerical employees , guards, and supervisors as
defined in the Act
On July 7, 1969 , the Board reopened the record and
ordered further hearing The Board ' s Order reads, in
pertinent part
In its exceptions Respondent contends , inter alga,
that , contrary to the Trial Examiner ' s findings,
the Union did not in fact enjoy the support of
a majority of the production and maintenance
employees for whom the Union requested recogni-
tion on April 26, 1968 In support of this contention,
Respondent alleges that , in addition to the 27
employees found by the Trial Examiner to have
been employed within the unit on April 26, 1968,
it had in its employ four named individuals classified
as "truckdrivers "
The record shows that none of the employees
whose unit status was litigated at the hearing were
classified as truckdrivers " and that there was
no indication one way or the other as to the exist-
ence of any truckdriver employees
In the above circumstances , and as the question
raised by Respondent ' s exceptions may have a
relevant bearing on the disposition of this case,
we shall remand the case to the Regional Director
for further hearing Accordingly,
IT IS HEREBY ORDERED that this proceeding
be, and it hereby is, reopened , and that a further
hearing be held before Trial Examiner Blackburn
on Respondent ' s exceptions , to determine the fol-
lowing matters (1) whether the individuals identified
as "truckdrivers " by Respondent 's exceptions were
in fact in Respondent ' s employ on April 26, 1968,
and (2) if so , whether , under established Board
principles , they should be deemed to be part of
the appropriate unit
Pursuant to the Board ' s Order and due notice , hearing
was held before me on August 13, 1969, in Chicago,
Illinois At the outset the General Counsel and the
Charging Party moved for permission to introduce evi-
dence relating to the 16th authorization card with a
view to authenticating it I denied the motion on the
ground that the hearing was limited to the two issues
specified in the Board ' s Order The General Counsel
and the Charging Party took a special appeal to the
Board under the provisions of Section 102 26 of the
Board ' s Rules and Regulations , Series 8, as amended
I proceeded to receive evidence relevant to the truckdri-
ver issues and, no response to the General Counsel's
and the Charging Party 's request having been received
from the Board , closed the record that afternoon
On August 14, 1969, the Board reversed my ruling
refusing to permit General Counsel or Charging
Party to authenticate a Union authorization card "
Pursuant to the Board ' s ruling I reopened the record
on September 2, 1969
Further hearing on the issue of the authenticity of
the 16th card was held, pursuant to due notice , before
me in Chicago on September 23, 1969
All parties were present on both hearing days and
were afforded full opportunity to call and examine or
cross-examine witnesses , otherwise introduce evidence,
and argue orally I have carefully considered briefs filed
by all parties Upon the record made at the hearing
on August 13 and September 23, 1969 , and from my
observation of the demeanor of the witnesses while
testifying, I make the following
FINDINGS AND CONCLUSIONS
I THE TRUCKDRIVER ISSUE
Ted Gordon , Manuel Medeiros , Carl Behnke, and
Harry Lewandowski were , indeed , employed by
Respondent as truckdrivers on April 26, 1968
JERO STEEL TREATING, INC.
Respondent uses four ton-and-a-half stake trucks to
pick up and deliver the metal parts which its customers
send to it for hardening through heat treating. The
trucks are leased. Each of the four drivers is assigned
one of the trucks. He services it and performs minor
maintenance on it. The whole process consumes less
than an hour a week. Maintenance employees who are
included in the unit found appropriate in my February
20, 1969, Decision sometimes help the drivers.
Each driver is assigned a geographic area. One covers
the north side of the city of Chicago proper. Another
goes regularly to the far north suburbs, a third to the
west, and the fourth to the southwest. They arrive
for work at 7:30 each morning , Monday through Friday,
15 minutes after the day shift has started. They spend
approximately an hour loading their trucks, with the
help of a unit employee who operates a forklift truck
They determine what customers have orders for them
to pick up from a list in the shipping area of the
plant. They leave on their appointed rounds, delivering
and picking up orders. If Respondent has some instruc-
tions for them during the day, it can contact them
on one-way radios in their trucks. When they have
finished their rounds, generally around 3 or 4 p.m.,
they return to the plant where they unload their trucks,
assisted again by the forklift driver. They turn in the
paperwork which accompanies the orders they have
picked up. They relay any special instructions or requests
received from customers to the shipping clerk or a
production foreman. They park their trucks in front
of the plant and go home. They average about an hour
and a half or 2 hours a day at the plant out of an
average 9-hour workday
Truckdrivers do not work on Saturdays. In-plant
employees do. Truckdrivers eat their lunch when and
where they please. In-plant employees get half an hour
for lunch, starting generally around 12.30 p.m. when
the lunch wagon shows up at the plant. Truckdrivers,
like in-plant employees, are hourly paid. They punch
the same timeclock as in-plant employees. The record
does not reveal their rate or rates of pay, either now
or in April 1968. The record does not reveal this informa-
tion for in-plant employees either. Like in-plant employ-
ees, truckdrivers get time and a half for overtime.
Truckdrivers are supervised directly by Plant Manager
James Jerousek, Jr. Jerousek, Jr., supervises in-plant
employees through an intervening layer of foremen.
Truckdrivers perform no production work. They some-
times help wrap parts for delivery in the shipping area
of the plant. Their duties regularly bring them into
contact with shipping clerks, the forklift driver, and
foremen; irregularly, with three maintenance employees.
All Respondent's employee benefits and policies apply
to truckdrivers as well as in-plant employees. This
includes vacations, paid holidays, group insurance, peri-
odic wage rate review, 30-day probationary period, and
rules. Vacationing truckdrivers are replaced by in-plant
employees. Truckdrivers and in-plant employees are list-
ed together on one integrated seniority list maintained
by Respondent.
533
Ted Gordon was hired as Respondent's first employee.
In the beginning he worked in the plant. When Respond-
ent acquired its first truck Gordon was assigned to
drive it. He has not worked in the plant since. Medeiros,
Behnke , and Lewandowski were all hired as truckdrivers.
They have never worked in the plant
The Charging Party argues that Respondent is bound
by its agreement that a unit which excludes' truckdrivers
is an appropriate unit, as distinguished from the most
appropriate unit. As evidence of such an agreement
it cites the fact that Respondent, in its answer, admitted
the appropriateness of the unit as set forth in the com-
plaint and the fact that Respondent has not since amend-
ed its answer. The complaint alleged a production and
maintenance unit, excluding office clericals, guards, and
supervisors. It was silent as to truckdrivers. In view
of the manner in which this issue has arisen, I cannot
now find that Respondent intended any such agreement
as the Charging Party would have me find. Rather,
it is clear from the fact that the existence of truckdrivers
was never even mentioned until Respondent filed its
exceptions to my Decision of February 20, 1969, that
whether or not they should be included or excluded
in a production and maintenance unit was beyond the
contemplation of all parties during the initial pleading
stages of this case.
The Charging Party also cites the fact that it has
not sought a unit which includes the truckdrivers and
does not now seek to represent them. While this is
a factor which is normally accorded considerable weight
in resolving this issue, it is not entitled to controlling
weight here. The Board's Order reopening the record
does not ask whether a unit of Respondent's production
and maintenance employees, excluding the truckdrivers,
would be an appropriate unit. Rather, it asks whether
they should be deemed to be part of the appropriate
unit under established Board principles.
On the basis of the record as a whole, and especially
in view of the relation of the truckdrivers to the flow
of materials and products into and out of Respondent's
plant, I find that the truckdrivers have a sufficient com-
munity of interest with Respondent's in-plant employees
to warrant their inclusion in the same unit and should
be deemed to be part of the appropriate unit under
established Board principles. E. H. Koester Bakery Co.,
Inc., 136 NLRB 1006; Marks Oxygen Company of Ala-
bama . 147 NLRB 228; Cumberland Farms, Inc., 167
NLRB 593. Therefore, the appropriate unit in this case
is more precisely described as
All production and maintenance employees
employed by Respondent at its plant in Skokie,
Illinois, including truckdrivers, but excluding office
clerical employees, guards and supervisors as
defined in the Act.
Conclusion of Law No. 3 in my February 20, 1969,
Decision and the-Appendix thereto are hereby amended
to reflect this correction in the designation of a unit
appropriate for the purpose of collective bargaining with-
in the meaning of Section 9(b) of the Act.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE MAJORITY ISSUE
Adding the 4 truckdrivers to the 27 in-plant employees
I originally found in the unit as of April 26, 1968,
the day the Union demanded and Respondent refused
recognition, makes a total complement of 31 Therefore,
the 16th authorization card becomes a critical piece
of evidence relating to the issue of whether the Union
represented a majority of those 31 employees on that
crucial day
General Counsel's Exhibit 4-M, the 16th card, bears
the name Angelo M Mercado Angelo M Mercado
was an employee of Respondent on April 26, 1968,
having been hired on April 16 Angelo M Mercado'
was called as a witness by the General Counsel at
the reopened hearing Mercado testified that Frank Cise-
ro approached him in the locker room and asked him
whether he wanted to join the Union Mercado said
that he did Cisero had him sign his name and address
on a blank piece of paper Mercado testified that the
paper he signed was not General Counsel's Exhibit
4-M, a conventional printed authorization card with
various blanks to be filled in Mercado testified that
the lettered "Angelo M Mercado" which appears in
the blank labelled "Employee's Signature" and the "1342
N Claremont" which appears in the blank labelled
"Address" looked like his signature but had not been
placed on General Counsel's Exhibit 4-M by him He
testified that the "Jero Steel Treating 7337 N Lawndale-
Skokie" which appears in the blank after the words
"authorize my employer," the "furnice [sic] operator"
which appears in the blank after "Class of Work,"
and the "4-17-68" which appears in the blank after
"Starting Date" were not in his handwriting He pointed
out a distinction between the " a's" in "Lawndale"
and the "a's" in his name and address and stated
that he never made an "a" as it appears in "Lawndale "
Frank Cisero was also called as a witness by the
General Counsel He testified that the piece of paper
which Mercado had signed to signify his desire to join
the Union was General Counsel's Exhibit 4-M He
further testified that he had seen Mercado write not
only his name and address but also "4-17-68," "furnice
operator," and "Jero Steel Treating 7337 N Lawndale-
Skokie "
Both Mercado and Cisero testified that McArthur
Brooks and Willie Brooks were presented in the locker
room on this occasion Neither McArthur Brooks nor
Willie Brooks was called as a witness by any party
I credit Mercado over Cisero In doing so I rely
on the fact that the " a's" in "Lawndale" are obviously
different from the " a's" in "Angelo M Mercado 1342
N Claremont" on General Counsel's Exhibit 4-M even
to my nonexpert eye and Cisero's incompatible testimony
that he saw Mercado write both Therefore, I find that
the paper which Mercado signed to signify his desire
to join the Union was not General Counsel's Exhibit
4-M and that General Counsel's Exhibit 4-M has not
been authenticated for purposes of counting it toward
the Charging Party's majority
A finding, however, that only 15 of the 16 authorization
cards which Peter Janopoulos waved in front of James
Jerousek, Sr , on April 26, 1968, had been signed by
employees of Respondent does not dispose of the majori
ty issue On the basis of Mercado's testimony that
he intended to join the Union when he signed his name
and address to a blank piece of paper, I find that
the Union, in fact, represented a majority of 16 employ-
ees out of 31 in the unit when it demanded recognition
on April 26, 1968
In my Decision of February 20, 1969, I based my
finding that Respondent had violated Section 8(a)(5)
of the Act on its commission of contemporaneous viola-
tions of Section 8(a)(1) and (3) Since the reopened
hearing has not altered the fact that the Union represent-
ed a majority in an appropriate unit, even though the
size of the unit and the size of the Union's proved
support in that unit have changed, I reaffirm that finding
here By discharging the leaders of the campaign to
organize its employees and by coercively interrogating
an employee about his and other employees' union activi-
ties, Respondent destroyed the conditions necessary to
the holding of a fair election Moreover, the unfair
labor practices committed by Respondent were so coer
cive and pervasive that they not only tend to preclude
the likelihood that an election would be a more reliable
indication of the employees' desire than the majority
enjoyed by Respondent at the time it demanded and
was denied recognition but also require a bargaining
order to repair their unlawful effect even absent an
8(a)(5) violation N L R B v Gissel Packing Company,
395 U S 575
Upon the record as a whole, including the record
made at the original hearing as well as the record made
at the reopened hearing, and pursuant to the Board's
Order of July 7, 1969, I make the following
RECOMMENDATION
I recommend that the Board issue the Recommended
Order contained in my Decision of February 20, 1969
' The transcript of the reopened hearing on September 23 1969
is hereby corrected throughout to reflect the correct spelling of Mercado s
last name