J.M. Machinery Corp.

National Labor Relations Board - Board Decisions

Nov 16, 1965

155 N.L.R.B. 860 (N.L.R.B. 1965)

S60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in circular reasoning in assuming that a conspiracy existed,
for that assumes the resolution of the primary issue in this case as
support for the inference of acquiesence in solicitation for the pur-
pose of finding a conspiracy and unlawful support of the Union in
accord therewith. Secondly, the success of the activities of Crist and
Taylor does not necessarily indicate that the Respondent was aware
of or condoned the conduct during working time. Nor does any other
direct evidence support such a finding. Rather, the credited evidence
establishes that fellow employees observed the two women soliciting
on company time, but there is no evidence that management was
informed on one occasion that Crist had solicited an employee to join
the Union. It is also clear from the evidence that Store Manager
Perothers on one occasion cautioned Crist to limit solicitation to non-
working time and areas, a fact which militates against the inference
of Respondent's acquiescence.
The success of the activities of Crist and Taylor is at least as con-
sistent with the probability that their efforts reached willing ears in
view of the fact that the employees were faced with the uncertainty
of employment with a new employer. It may readily be inferred
that the employees would, without much persuasion, be willing to,
join the only labor organization then manifesting an interest in rep-
resenting them.
In summary, the Trial Examiner's findings are either unsupported
by logic or the record or are equally consistent with a lawful as with
an unlawful motive. It would be a miscarriage of justice to conclude
from the evidence before us that the Respondent Company was an
active party to a preorganizational campaign understanding with the
Joint Board. These facts provide no basis for finding even company
knowledge or assistance and a fortiori do not support an inference
of conspiracy. Accordingly. we shall dismiss the complaint in its
entirety.
[The Board dismissed the complaint.]
J.M. Machinery Corporation and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths , Forgers and
Helpers, AFL-CIO, Local 609. Case No. 12-CA.-3101. Novem-
ber 16, 1965
DECISION AND ORDER
On August 10, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
155 NLRB No. 100.
J.M. MACHINERY CORPORATION 861
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in certain
other alleged unfair labor practices and recommended dismissal of
these allegations of the complaint. Thereafter, the Respondent and
the General Counsel filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria.]
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs of the Respondent and
the General Counsel, and the entire record in this proceeding, and
hereby adopts the findings and conclusions of the Trial Examiner,
with the following additions and modifications.
1. The Trial Examiner found, and we agree, that by the conduct
more fully described in the Trial Examiner's Decision, the Respond-
ent interfered with, restrained, and coerced employees in the exercise
of their Section 7 rights, in violation of Section 8(a) (1) of the Act.'
In making these findings, the Trial Examiner concluded that Fore-
man Myers was a supervisor within the meaning of the Act and that
the Respondent was therefore responsible for his conduct. The
Respondent, relying on such cases as Indianapolis Newspapers, Inc.,
103 NLRB 1750, and Hy Plains Dressed Beef, Inc., 146 NLRB 1253,
contends that it was not responsible for Myers' antiunion conduct
because the Union agreed that Myers was eligible to vote in the elec-
tion held among the Respondent's employees on January 13, 1965,2
and there is no evidence that the Respondent encouraged, authorized,
or ratified Myers' activities or acted in such a manner to lead employ-
ees reasonably to believe that Myers was acting on behalf of manage-
ment. In those cases, the Board held that in view of the supervisor's
inclusion in the unit, his conduct did not intimidate employees since
he was considered by them to be a fellow employee and not a represent-
ative of management.' But here, the only evidence which might sup-
port a conclusion that Myers was considered to be a fellow employee
' The General Counsel excepts to the Trial Examiner 's failure to find that certain other
conduct of the Respondent violated Section 8 ( a)(1). However , in view of the fact that
we are finding that the Respondent violated Section 8(a) (1) in numerous other respects,
we deem it unnecessary to pass upon the lawfulness of this, other conduct for the reason
that the finding of additional 8(a) (1) violations would be cumulative and would have no
effect on the order entered herein.
2 Case No. 12-RC-2093.
3 See Montgomery Ward & Company, Incorporated , 115 NLRB 645, 647.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the fact that on December 31, 1964, the Union agreed that Myers
was eligible to vote. However, three of the four antiunion incidents
involving Myers occurred before December 31; the Union challenged
Myers' ballot at the election; and the Board, in an unpublished Deci-
sion , Order, and Direction of Second Election, sustained the challenge
to Myers' ballot on the ground that he was a supervisor. Finally, as
found by the Trial Examiner, Company President Hyden had asked
Myers to help evaluate how employees felt about the Union and Myers
reported to Hyden as requested. This conduct, we believe, constituted
encouragement and authorization by the Respondent of Myers' anti-
union activity. In view of the foregoing, we find, for these reasons in
addition to those relied on by the Trial Examiner, that Myers is a
supervisor and that the Respondent was responsible for his conduct.
2. We further agree with the Trial Examiner that the Respondent
violated Section 8(a) (5) and (1) of the Act by refusing to recognize
and bargain with the Union as the representative of a majority of its
employees in the appropriate unit on and after November 29, 1964.4
With respect to the Union's majority status during the critical period,
the Trial Examiner found that, excluding Myers, there were 14
employees in the appropriate unit and that the Union had obtained 9
authorization cards from these employees. The Respondent, however,
challenges the validity of the authorization cards of employees Wood
and Griffin. In agreement with the Trial Examiner, and for the rea-
sons stated by him, we find that the card signed by Griffin was valid
for authorization purposes.5 However, unlike the Trial Examiner, we
shall count Wood's card in determining the Union's majority status.
The card signed by Wood in November 1964 expressly authorized the
Union to bargain on his behalf and Wood made no attempt to revoke
this authorization. Indeed, in April 1965, Wood signed a second
union authorization card. Further, although Wood could not read,
the Trial Examiner credited testimony that upon the occasion when
Wood signed his card in November 1964, the union representatives
soliciting employees to sign cards told them that the cards were for
bargaining purposes. In refusing to count Wood's card, the Trial
Examiner reasoned that even in the absence of the Respondent's unfair
labor practices, Wood, because of his loyalty to Vice President Mraz,
would have voted against the Union. We disagree with the premise
of the Trial Examiner's argument that it is proper to consider whether
Wood would have voted for the Union in an election in deciding
whether his card was valid for authorization purposes. In our view,
4In view of this finding, unlike the Trial Examiner, we deem it unnecessary to pass on
the question of whether there was a further unlawful refusal to bargain in April 1965,
following the Union's second organizational campaign.
' In so doing, we find it unnecessary to pass on the Trial Examiner's comments relating
to the law governing the validity of authorization cards in factual situations not here
present.
J.M. MACHINERY CORPORATION 863
speculation as to how an employee might have voted in an election is
irrelevant to the question whether to count his otherwise valid author-
ization card in determining the union's majority status in an 8(a) (5)
proceeding. Moreover, even under the view of the Trial Examiner,
we are not convinced that Wood would have voted against the Union,
as he signed a second card in April 1965, after the election had taken
place.
As the Union had 9 valid authorization cards in a unit of 14 employ-
ees, we find that it was the majority representative in an appropriate
unit when it demanded that the Respondent recognize and bargain
with it. As we have already found, the Respondent engaged in fla-
grant unfair labor practices, violative of Section 8 (a) (1). These
unfair labor practices began shortly after the Union demanded recog-
nition and continued until several days before the election took place,
which the Union lost. The Board thereafter affirmed the Regional
Director and set aside the election on the basis of the Union's objections.
In these circumstances, we find that the Respondent's overall conduct
effectively rebuts its claim of a good-faith doubt of the Union's major-
ity status and establishes that it refused to recognize the Union in
order to gain time in which to destroy its majority status. Accord-
ingly, we find, in agreement with the Trial Examiner, that the
Respondent violated Section 8 (a) (5) by refusing to bargain with
the Union on and after November 29, 1964.6
[The Board adopted the Trial Examiner's Recommended Order.]
6Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F. 2d 732 (C.AD.C.), cert. denied 341
U.S. 914. Bernet Foam Products Co., Inc., 146 NLRB 1277.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter, heard before Trial Examiner Frederick U. Reel at Tampa, Florida,
on May 17 and 18, 1965, pursuant to a charge filed December 21, 1964, and a com-
plaint issued March 24 , 1965, and amended May 4, 1965 , presents questions as to
whether Respondent, herein called the Company, interfered with, restrained, and
coerced its employees in violation of Section 8(a)( I) of the Act, and whether the
Company unlawfully refused to bargain with the Charging Party, herein called the
Union, in violation of Section 8 (a) (5) and (1) of the Act.
Upon the entire record,1 including my observation of the witnesses , and after due
consideration of the briefs filed on behalf of the Company and of General Counsel,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The Company, a Florida corporation engaged at Plant City, Florida, in fabricating
steel and related products , annually sells in excess of $50,000 worth of products to
several concerns each of which annually ships goods valued in excess of $50,000
across State lines. Upon these facts, I find that the Company 's business affects com-
' General Counsel ' s motion to correct the transcript in certain respects was unopposed
and is hereby granted.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce within the meaning of Section 2(6) and (7) of the Act. The pleadings estab-
lish that the Union is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the latter part of November 1964, a number of employees signed union authori-
zation cards, following which, on November 29, the Union wrote the Company
requesting recognition. In a consent election, held January 13, 1965, the Union
failed to obtain a majority, but the Board thereafter sustained the Union's objections
to the election based on preelection conduct of the Company. The complaint in
the instant case alleges that during this preelection period the Company, through its
officers and through one James Myers, alleged to be a supervisor, committed various
acts and made certain threats and promises which amounted to interference, restraint,
or coercion of employees in the exercise of their Section 7 rights. The evidence with
respect to these matters may be summarized as follows.
1. Conduct of James Myers
(a) In mid-December, Myers stated to employees Pope and Taylor that if they
would go to either of the Company's officers and advise that they were with Myers
and against the Union, they would receive a wage increase of 25 cents an hour.
(b) Early in January 1965 Myers told employee Green that if Green voted for
the Company and not for the Union, Green's wage would be raised from $1.50 to
$1.75 per hour. Shortly thereafter when Green needed to borrow money, Myers
stated: "I might could help you if you could vote for the Company and not the
Union."
(c) Myers early in December asked employee Taylor if he had signed a union
card. About the middle of that month Myers told Taylor that the Company had
acquired other shops, and would move if the Union won the election. Later in
December Myers again asked Taylor if Taylor was "still going union," and said that
Taylor "could go just like" Ivan Harmon (a recently discharged employee) "unless
we made a wise choice." Early in January Myers repeated his inquiry of Taylor as
to whether Taylor was "still going union," told Taylor it was not too late to change,
and added that he had seen some statements which an investigator from the Board's
Regional Office had obtained from employees.
(d) Myers told employee Garringer early in December that if the Union came in
the Company would "have to let the men go and rehire them according to [union]
standards."
2. Company responsibility for Myers' conduct
The interrogation, threats, and promises attributed to Myers by the foregoing testi-
mony, all of which was undenied (Myers did not testify), plainly violated Section
8(a) (1) if the Company was legally responsible for Myers' statements. I have little
hesitancy in finding the Company liable. In the first place, I find that Myers was a
supervisor within the meaning of the Act. He recommended several employees for
hire, and his recommendation carried weight. Company officials presented him to
the men as "foreman" or "superintendent." When machine shop employees wanted
time off from work, they notified him. Myers assigned work to the men, gave them
instructions, and did less work with tools than the other employees. Even if Myers
were not a "supervisor" within the meaning of the Act, I would find the Company
legally responsible for the interference , restraint, and coercion in which he engaged.
The company officials repeatedly used Myers to convey their decisions as to hiring,
firing, and discipline . On several occasions he reported their action after being
closeted with them. Company President Hyden asked Myers to help evaluate how
the other employees felt about the Union, and Myers reported to Hyden as requested.
None of the other employees served as conduits of this type of information. Under
these circumstances , assuming I am in error in finding that Myers was a supervisor,
I find that the employees reasonably regarded him as representing management policy,
so that the Company, having used him as a company spokesman , cannot escape
liability for his coercive statements. N.L.R B. v. Solo Cup Company, 237 F. 2d 251,
253-254 (C.A. 8); N.L R.B. v. Des Moines Foods, Inc., 296 F. 2d 285, 286 (C.A. 8);
N.L.R.B. v. Howell Chevrolet Company, 204 F. 2d 79, 84 (C.A. 9), affd. 346
U.S. 482.
J.M. MACHINERY CORPORATION 865
3. Statements of Company President Hyden
During the course of the union campaign, Company President Hyden delivered
two speeches to the assembled employees, one on December 8, 1964, shortly after
the Union requested recognition, and the other on January 11, 1965, 2 days before
the election. General Counsel alleges that certain statements in these speeches
exceeded the limits permitted by Section 8(c) of the Act and amounted to threats
,or promises violative of Section 8(a) (1).
(a) On December 8, Hyden stated in part:
. we are completely opposed to having this union or any other union come
into this company .... We intend to use every possible and legal means avail-
able to us to prevent this union from coming in. It may take days, weeks, or
even years but when this thing is finally over-there will be no union in this
Company.
(b) In the same speech, Hyden stated, ". the law does not require the company
to do anything except negotiate. The law does not require the company to agree to
anything that the union proposes. This is why the union cannot promise anything
except negotiation."
(c) Near the end of the same speech, Hyden said: "We have no hard feelings
toward anybody [who signed a union card]. We simply hope that this thing can be
stopped before it goes any farther and before it has a chance to become unpleasant.
... Those of you who have already signed remain free to vote as they please when
and if there is an election. So actually no harm has yet been done."
General Counsel urges that the three passages quoted above exceed the limits per-
mitted by Section 8(c). The forceful passage quoted first is somewhat mitigated by
the second excerpt, in that the latter assumes the possibility of a union victory which
the former states can never occur. But even standing alone, the statement that the
Employer will strenuously resist the Union, accompanied by a prediction that he will
prevail, does not amount to a threat. The second quoted passage suggests that the
Union has little to offer, but it falls short of stating that the Employer will not bar-
gain in good faith But the final statement which threatens the employees that unless
the union drive is stopped, conditions would "become unpleasant" in my judgment
oversteps legal bounds and reaches the level of impermissible interference, restraint,
and coercion.
(d) In his January 11 speech, Hyden twice observed that all but three or four of
the employees were going to vote against the Union. At one point he added that
"most of you have come to us and told us so." The second reference was followed
by the statement that those who favor the Union "have every right and privilege to
make up your own mind about this, and we appreciate the fact that you have been
frank about it." General Counsel alleges that the reference to three or four union
adherents created an impression of surveillance. But Hyden's statement dispelled
any such impression, for he openly attributed his "knowledge" to the communica-
tions made to him by the employees. On the witness stand Hyden admitted that he
had not known at the time of the speech that only three or four were for the Union
and he made the statements in his speech because he was "trying to appear confident"
and because he thought it might "convince someone that was maybe on the fence ...."
Even deliberately misleading campaign propaganda, however, is not necessarily vio-
lative of Section 8(a) (1). It should not be necessary to emphasize that in dismissing
the allegation of "impression of surveillance" I am expressly finding that the employ-
ees who heard the speech would not infer that the Company had been spying on the
Union, and would infer that the information reached the Company without such
spying. Failure to articulate this proposition in simple terms can apparently lead
to misunderstanding. Moore's Seafood Products, Inc., 152 NLRB 683. Insofar as
Hyden's claimed "information" was the fruit of unlawful interrogation, the violation
inherent in the interrogations of Myers and Vice President Mraz is discussed
elsewhere.
In the January 11 speech, Hyden told the employees that as a result of the lessons
learned from the Union's campaign, the Company was going to issue a printed manual
to every employee, showing what the employee was entitled to, what he could not
be fired for, what fringe benefits he enjoyed, and the like. He also told the employees
that thereafter company officials would hold periodic meetings with the employees
to discuss employee problems and complaints. Hyden made it clear that these
changes (the manual and the periodic meetings) were in direct response to employee
sentiments expressed during the union campaign. The law is well settled that an
employer violates Section 8(a)(1) if he announces the grant of benefits on the eve
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an election where his purpose is to impinge on the employee's freedom of choice
and his action is reasonably calculated to have that effect. N.L.R.B. v. Exchange
Parts Company, 375 U.S. 405, 409. The rule is as applicable to "fringe benefits"
as to wage increases (Seneca Plastics, Inc., 149 NLRB 320), and hence interdicts the
fringe benefits (written manual and periodic grievance sessions) announced here.
4. Wage raises in the preelection period
During the period between the Union's request for recognition and the election,
the Company granted raises in pay to only two employees, Dennis Griffin and
Richard Wood. Both raises were given on December 27, 1964.2 Griffin was raised
from $1.20 to $1.50 per hour, and Wood's hourly rate was raised from $1 to $1.25.
Company President Hyden testified that the raises were given because when the men
were hired as unskilled labor they were told they would be raised when their progress
justified, and "we felt like they had gained enough ability that they deserved a raise."
Both Griffin and Wood, who were the two lowest paid employees, had just received
a Christmas bonus which was also paid to the other employees. Their raises were
given less than 3 weeks before the election. The record establishes that the Company
knew that Griffin had signed a union card. Under all the circumstances the granting
of these 25-percent wage increases at this time appears to have been calculated with
an eye to influencing the employees' votes in the election, and hence violated Section
8 (a) (1) as construed in the Exchange Parts case.
5. Statements of Vice President Mraz
Thus far the matters alleged to have been unlawful interference, restraint , and coer-
cion are not the subject of disputed testimony; Myers did not testify, Hyden's speeches
are in evidence, and the facts as to the Griffin-Wood pay raises are matters of record.
Insofar as the General Counsel alleges unlawful conduct by Vice President Mraz,
however, the evidence is in conflict.
(a) According to employee Green, Mraz spoke to him for close to an hour at the
shop one day in December, and in the course of the conversation said that if the
Union prevailed, Mraz "could get rid of the union guys and replace them with non-
union." On cross-examination Green testified that he did not remember whether
this statement of Mraz was made "in connection with telling [Green] what the
Company's rights would be in the event of a strike."
(b) According to employee Garringer, Mraz asked him early in December
whether he thought "we needed a union," and Garringer avoided a direct reply.
Garringer further testified that shortly before Christmas Mraz again engaged him in
conversation about the Union, in the course of which Mraz said that "anyone who
voted for the Union would actually be voting for Carl [the leading union protagonist
among the employees] and would go with Carl." On cross-examination Garringer
testified that he understood this to be a threat that Carl and those who voted for the
Union would be discharged. Garringer also quoted Mraz as stating that after the
election the Company would know how each man had voted. Garringer replied,
according to his testimony, "there was no way [Mraz] could tell how each man voted."
(c) Employee Langston testified that Mraz on several occasions inquired as to
how Langston felt about the Union, to which Langston replied that it had both good
and bad points.
(d) Employee Pope testified that early in January, about 1 week before the elec-
tion, Mraz asked him why he had changed his mind about the Union. Pope, who at
that time had not signed a card and had so advised Foreman Myers, replied, "Who
said anything about I changed my mind?" to which Mraz rejoined, "Well, you been
attending the meetings and trying to get the guys to go." In this same conversation,
according to Pope, Mraz stated that the men were in line for a pay raise, that the
advent of the Union would mean the elimination of overtime, and that anybody that
had anything to do with the Union should go.
(e) Employee Taylor testified to a conversation with Mraz in late December or
early January in which Mraz indicated that he knew how most of the men, including
Taylor, would vote on the union issue. In that conversation, according to Taylor,
Mraz stated that no raises would be given until the union matter was settled but that
a wage schedule had already been filled out which included a raise for Taylor.
2 General Counsel's Exhibit No. 4, which gives the date as December 27, 1965, is plainly
in error as to the year.
J.M. MACHINERY CORPORATION 867
Mraz, although admitting that he engaged in frequent conversations with the
employees, either denied categorically or sought to explain as innocuous the state-
ments attributed to him by the testimony summarized above. Assessment of Mraz'
testimony is rendered even more difficult than is usual when questions of credibility
are involved, because Mraz has been in this country for less than 10 years, has obvi-
ous and admitted difficulty with our language, and occasionally expresses himself
in what appears to be literal translations of foreign idioms rather than in our ver-
nacular. Moreover, in making a choice between Mraz' version of what he said and
another witness' version of the same conversation, it must be kept in mind that Mraz'
linguistic problems render it likely that misunderstandings existed as to what he said
at the very moment he said it, to say nothing of the difficulty of reconstructing in
a formal hearing 5 months after the event what he said in informal conversations
in the shop.
Basically, I regard Mraz as in general a credible witness, but one whose intense
hostility to the Union's organizing his shop led him to overstep legal bounds, from
time to time, in opposing it. Mraz admitted that he asked every one of his employees
what the employee's attitude was toward the Union. He also admitted that in dis-
cussing the Union with Pope, he referred to Pope's attendance at a union meeting.
Although I am necessarily in some doubt on the matter, I am inclined to credit
Mraz' testimony that he did not tell any employee that the Company would know
how each man voted, or that those who voted for the Union would be forced to leave
the Company's employ. On the other hand, based on the entire record and my
appraisal of the witnesses, I find that Mraz did indicate to the employee in these
preelection discussions that their wages would be increased after the election. Mraz
did not state that a union victory would cancel the wage increases, but his assurances
that raises were in the offing constituted unlawful interference within the spirit of
Exchange Parts, supra.
Concluding findings
As indicated above I find that the Company interfered with, restrained, and coerced
its employees in the exercise of their Section 7 rights by (1) Myers' statements to
Pope, Taylor, and Green that opposition to the Union would result in wage increases;
(2) Myers' conditioning a loan to Green on the latter's opposing the Union; (3)
Myers' repeated interrogation of Taylor as to his umon activity; (4) Myers' threat
to Taylor that the plant would move if the Union won; (5) Myers' threat that Taylor
would be discharged if he supported the Union; (6) Myers' threat to Garringer that
advent of the Union would result in a mass discharge and rehiring on union stand-
ards; (7) Hyden's directive to Myers to ascertain the union sentiments of the employ-
ees; (8) Hyden's preelection promises of a written company manual setting forth
employees' rights, and of periodic grievance sessions; (9) Hyden's threat that con-
tinuation of the union drive would lead to unpleasantness; (10) the granting of wage
increases shortly before the election to Griffin and Wood; (11) Mraz' systematic
interrogation of employees as to their union views; (12) Mraz' statement to Pope
indicating awareness of who attended union meetings; and (13) Mraz' statements to
several employees shortly before the election that wage increases would be theirs in
the near future.
B. The refusal to bargain
The Union lost the election on January 13 by a vote of seven to six with one ballot
(that of the union leader , Carlton Hornsby) challenged . The Union then filed objec-
tions to the election , and the Regional Director set the election aside, because of
certain company conduct, much of which has been detailed above. General Counsel
contends that the Union in fact represented a majority of the employees prior to the
Company's unfair labor practices , and that this fact (which General Counsel contends
is established by authorization cards ) warrants the issuance of an order directing the
Company to recognize and bargain with the Union. General Counsel has correctly
stated the law (see Amalgamated Clothing Workers of Americia, AFL-CIO (Edro
Corporation ) v. N.L.R.B., 345 F. 2d 264 (C.A. 2); International Union of Electrical
Radio and Machine Workers , AFL-CIO (S. N. C. Manufacturing Co., Inc.) v.
N.L.R.B., 352 F. 2d 361 (C.A.D.C.)), but whether the record supports the factual
claim of majority cannot be disposed of so easily.
The bargaining unit in December 194 consisted of 14 employees ( 15 if, contrary
to my finding , Myers was not a supervisor ).3 In either event the Union required
3 The pleadings establish that a production and maintenance unit, with statutory exclu-
sions, is an appropriate unit.
212-809-66-vol. 155-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eight to establish a majority. General Counsel introduced 10 authorization cards
signed in November 1963, but 1 of these was that of Harmon, who was discharged
before signing a card. Of the nine remaining cards, the Company contends that two
(those of Wood and Griffin) should not be counted for reasons developed below.
General Counsel would count all nine, and would also include as a union adherent
employee Pope, who did not sign a card until later. If the Company prevails with
respect to all three, the number of union supporters drops to seven , less than a
majority. If General Counsel prevails as to one or more of the three, the Union had
eight or more, and the majority is established.
Pope did not sign a union card until April 1965 when a second organizing drive,
discussed below, was underway. In December, Pope told Myers that he had not
signed a union card. In January, before the election, Mraz indiacted a belief that
Pope was a union supporter, for Mraz asked Pope why he had changed his mind,
noting that Pope had gone to union meetings and had urged others to attend. Mraz
testified that on that occasion he asked Pope, "Why you think we need a union?" and
that Pope replied. "Well, I have to go with the rest of the fellows." Company coun-
sel asked Pope on cross-examination, "You voted for the union , didn't you?", but I
sustained General Counsel's objection to that question.
With the record in this state, I do not believe Pope can be included as a union man
in determining whether the Union commanded a majority prior to the unfair labor
practices. At best his position was somewhat equivocal, for he had not signed a card.
The test in cases of this nature is whether the Union in fact commanded a majority,
so the Company's belief that Pope was prounion is not material. Pope's later sign-
ing of a card is also not material to his status in December 1964. See Moore's Sea-
food Products, Inc., 152 NLRB 683 at footnote 3, holding that an employee could
not be counted as a union supporter on March 1, 1964, where the record showed that
she was hired after February 18, joined the Union before March 10, and remained
a union member at least until the hearing several months later.
Wood, a 17-year-old boy, is a next-door neighbor of Mraz, who gave the boy a job
late in the summer of 1964 at $1 per hour because Mraz felt concern for the boy and
his parents over young Wood's idleness and lack of future. Young Wood, who is
substantially illiterate, although he can write his name, signed a union card in
November 1964 and a second card in April 1965.
Wood signed the first card on November 23, when a group of employees met at
a nearby restaurant and were urged to sign cards by employees Harmon and Hornsby
and Union Organizer Mills. Wood testified as follows:
Q. Did they tell you what the card was for?
A. They told me it was an election card.
Q. And what do you mean an "election card?" Just explain what you mean.
A. For the union to sign the card, and then an election come in , you vote for
what side you wanted.
Q. And did you then sign the card?
A. I signed my name.
Q. Now, Richard, do you read and write very well?
A. No, sir.
Q. Did you read the card?
A. No, sir.
Q. Could you have read it if you wanted to?
A. No, sir.
Q. At that time were you in favor of having a union come in?
A. No, sir.
Q. Did anybody tell you at that time that the union could take these cards
and demand to come in without an election?
A. That was the first time you are talking about now?
Q. Yes.
A. Take these cards, and they 'd come in.
Q. Yes.
A. No.
Q. Was it your understanding that they had to go through an election first?
A. Yea.
Q. When you signed the card had you understood anything else?
Mr. RoMANO: Objection , Mr. Examiner.
TRIAL EXAMINER : Sustained.
Q. (By Mr. Hoco.) Would you tell us what your intentions were at the time
you signed the card?
A. My intentions?
J.M. MACHINERY CORPORATION 869
Mr. ROMANO: Objection, same thing.
TRIAL EXAMINER: Sustained.
Mr. HOGG: Make an offer of proof, Mr. Trial Examiner.
TRIAL EXAMINER: Yes.
Q (By Mr. HOGG.) Then answer the question , what were your intentions
at that time?
A. My intention was to sign the card where none of them wouldn' t get mad
at me. And when the election come I was going to vote against the Union.
Mr. ROMANO: Mr. Examiner, I'm sorry-
TRIAL EXAMINER: This is his-he's answering over sustained objection on
offer of proof.
Mr. HOGG: This is still in the offer of proof:
Q. (By Mr. HOGG.) Did you have any reason to believe at the time that
anyone would be mad at you if you did not sign the card?
A. Well, no, I didn't have a good reason.
TRIAL EXAMINER: Do you object to that question? There is no objection to
that question?
Q. (By Mr. HOGG.) You say you didn't want anybody mad at you?
A. That's right.
Q. Did you think they might be mad at you?
A. You can't never tell, they're all strangers.
Other witnesses testified that the union leaders at the meeting at the restaurant did
not indicate that the cards would be used only for an election, and that on the con-
trary they explicitly stated that the Union would write the Company demanding recog-
nition as soon as over half the employees signed cards. As noted above, the Union
did in fact pursue that course after obtaining the signatures of a majority.
In April 1965 the Union again attempted to get the men to sign authorization cards.
On this occasion, Wood again signed a card. Employee Taylor testified that a few
days before Wood signed the second card, Taylor took a card to Wood's house, asked
Wood to sign it, and told him there would not be another election, and that the card
was just for recognition. Wood said he would think about it. A few days later
employee Langston asked Wood if he would be interested in signing a card. Wood
asked if there would be an election, and Langston replied in the negative, stating:
. . it would be unanimous as I understood it. We would have recognition right
away." Wood shortly thereafter that same day signed a card in Langston' s car, and
so reported to Langston. According to Wood, he "thought it was an election card.
I was going to sign the card, and did the same thing I did last time where they
wouldn't get mad or nothing. Then, three or four days later, I got talking to Bill 4
out there, and he told me it was a card that you sign, the Union would automatically
come in."
Although I am deciding against counting Wood's card in determining whether the
Union had a majority in December 1964, I reach this conclusion with grave mis-
givings. Wood did not impress me as a particularly credible witness, and while I have
nothing but sympathy for his illiteracy I formed the distinct impression that his testi-
mony was often disingenuous and canny, and that his responses were carefully cal-
culated to advance the Company' s case. Thus, with respect to the April 1965 card,
I have no doubt that his conversation with Langston as to the import of the card
preceded Wood's signing it (as Langston testified) and did not follow it by several
days (as Wood testified). I also do not credit his testimony that "they" ( the union
leaders ) told him in November 1964 that the card was "an election card." Without in
any degree intending to reflect on the conduct of the Company or its counsel in pre-
paring for trial, I am of the view that Wood's "recollection" of what was said and
of what was in his mind at the time of the November card signing was highly colored
by what he knew, at the time he testified, would advance the Company' s case.
I believe Wood signed a card at the November meeting simply because his fellow
employees did, and without any particular intention to commit himself to anything.
But in determining whether the Union had a majority before the commission of unfair
labor practices so as to be entitled to a bargaining order, I believe it important to
reconstruct the situation, so far as possible, that would have existed but for the unfair
4 The reference Is plainly to Langston, commonly referred to as "Bill." The only other
"William" in the Company's employ at the time was one Senn, Invariably referred to as
"Willie."
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices . In the ordinary case, the signing of an authorization card furnishes
the best evidence of the employee's state of mind. But in Wood's case, I am con-
vinced that even had the Company committed no unfair labor practice, and even had
it not raised his wages just before the election, Wood would have ascertained that his
benefactor and neighbor, Mraz, wanted him to vote against the Union, and that he
would have done so. For that reason, I would not count him as among those making
up the Union's majority at the time of the unfair labor practices.
I find otherwise, however, with respect to Dennis Griffin's card. Griffin testified
that he read the first card before he signed it on November 23, 1964, and that he
had not read the second card which he signed on April 5, 1965, assuming, quite
correctly, that the cards were identical. The card which Griffin read before he signed
is captioned "Authorization for Representation," gives the name of the Union, and
recites that "I, the undersigned employee ... hereby select the above-named Union
as my collective bargaining agent." Unlike the card described in N.L.R.B. v. Peterson
Brothers, Inc., etc., 342 F. 2d 221, 223, 224 (C.A. 5), the card contained no reference
to an election , although it did recite that it was not an application for membership.
See also Judge Burger's concurrence in International Union of Electrical, Radio and
Machine Workers AFL-CIO (S.N.C. Manufacturing Co., Inc., 352 F. 2d 361
(C.A.D.C.). The card in this case satisfies the rigorous standard of unambiguity
required by Judge Burger and by the Fifth Circuit in Peterson. At the very least it
furnishes a prima facie showing that Griffin had knowingly authorized the Union to
act as his representative prior to the unfair labor practices (one of which, as found
above, was a substantial wage increase to Griffin).
On cross-examination by company counsel, Griffin testified as follows:
Q. (By Mr. HOGG.) Dennis, why did you tell Mr. Mraz that you'd signed
the card the first time?
A. Well, because I was with the Company and I just wanted to keep everybody
happy in the shop.
Q. Why did you tell him about it the second time that you signed one?
A. Well, for the same reason.
Q. When you signed your card the first time before the election, were you in
favor of having the union come in?
A. No, sir, I just signed it to keep harmony in the shop.
Q. You say to keep harmony in the shop. Would you explain that for us a
little bit more?
A. Well, everybody just acted like they was mad at you if you didn't sign.
So I just signed it to keep them happy.
Q. How did you intend to vote in the election at that time?
A. Sir?
Q. At that time what did you intend to do when the election came up?
A. Vote "No."
Q. When you signed your card, was that over at the Idle Hour?
A. The first card was.
Q. When you signed that card did anyone there tell you what would happen
as a result of signing the card?
A. Said that there would be an election.
Q. Did you understand that that was what would happen?
A. Um-hum.
Q. Would you have signed the card if you had known that it could be used-
Mr. ROMANO: Objection, Mr. Examiner.
Mr. HOGG: Can I complete the question?
Mr. ROMANO: Speculation.
Mr. HOGG: I think I'm entitled to ask before it is objected to.
TRIAL EXAMINER: Go ahead with the question, Mr. Hogg.
Q. (By Mr. HOGG.) Would you have signed a card for the union to come in
without an election?
Mr. ROMANO: Objection, and move that the answer be stricken.
TIDAL EXAMINER: I'll sustain the objection It seems to me to come a little
late with this witness. He's already testified pretty much with regard to that
matter. Go ahead, Mr. Hogg.
Q. (By Mr. HOGG.) You said you signed two cards. When you signed the
second card were you in favor of having the union at that time?
A. For the same reason as the first card.,
Q. Are you at this time in favor of having a union in the plant?
A. No, sir.
J.M. MACHINERY CORPORATION 871
Mr. Hock: I'd like to put the other question in by question and answer offer
of proof.
TRIAL EXAMINER: There is, I think, some rule about making offer of proof
with an adverse witness, but I'm not so sure that this witness can be properly so
characterized. Technically, he is called by your adversary. All right, Mr. Hogg,
you may.
Q. (By Mr. HoGG.) As an offer of proof, Dennis, I would ask you on the
occasion of your signing the first card would you have signed that card to bring
in the union without having an election?
A. No, sir.
Mr. HOGG: That's the end of the offer of proof. I suppose it is-in view of
your earlier ruling it is not accepted.
TRIAL EXAMINER: That's right.
On redirect, Griffin testified that employee Harmon gave him the first card, and
continued:
Q. Did he say anything to you about the card?
A. He just said it was to bring the union in, but they'd have an election.
Q. To bring the union in?
A. Um-hum.
Q. And you signed it to bring the union in?
A. Well, he said there'd be an election betore it came in.
Q. Did you sign the card to bring the union in?
A. Well, I knew there was going to be an election.
With respect to Griffin's subjective state of mind at the time he signed the card, I
adhere to my ruling rejecting the Company's attempt to inquire in that area, and I
place no weight on Griffin's testimony on that matter even where he answered without
objection from General Counsel As stated in Joy Silk Mills, Inc. v. N.L.R.B., 185
F. 2d 732, 743 (C.A.D.C.), cert. denied 341 U.S. 914, "an employee's thoughts (or
afterthoughts) as to why he signed a union card and what he thought that card meant,
cannot negative the overt action of having signed a card designating the Union as
bargaining agent." See also N.L.R.B. v. Gorbea, Perez & Morell, 300 F. 2d 886, 887
(C.A. 1) : "The Board was justified in accepting the cards at face value and rejecting
the oral testimony that the employees had thought they meant something else."
Accord: The Colson Corp. v. N.L.R.B., 347 F. 2d 128 (C.A. 8).
A different question is presented as to what Griffin was told at the time he signed
the card. As indicated above in the case of Wood, I find that the employees were not
told before they signed the cards that the cards were just for an election, and that, on
the contrary, they were told that the cards were for the purpose of obtaining union
representation . Moreover, employee Hornsby testified that the day after the Novem-
ber card signings, he explained to Griffin the procedure by which the Union would
obtain recognition, and an election was not mentioned at that time. Finally, even if
an election had been mentioned as one of the matters which could follow the signing
of cards, this cannot "taint" the cards or destroy their use as a means of proving
majority when the employer's own conduct aborts the election procedure. A union
may in good faith expect to go to an election and so advise employees, but cards which
recite on their face that the signer authorizes the union to represent him, and which
say nothing about an election, are not rendered invalid by such representations. If
the organizers tell the employees that the cards are meaningless , that the employee
should sign to help his fellows get an election whatever his own choice may be, or
words to that effect, then the cards may not be counted as establishing the intent of the
signer. But Griffin testified to no such representations, and his testimony months
after the event, and after the Company's commission of several unfair labor practices,
cannot derogate from the plain language of the card he read and signed .5
I therefore find that Griffn's card should be included along with those of Travers,
Green, Fudge, Garringer, Langston, Taylor, and Hornsby in establishing the Union's
majority of 8 out of 14 or 15 in the unit in December 1964 (if both Myers and
Hornsby be excluded as supervisors, and there is little evidence for the exclusion of
Hornsby, the Union would have 7 out of 13). It follows under International Elec-
trical Workers, supra, and Amalgamated Clothing Workers of America (Edro Corpo-
5 Mraz' testimony as to his conversations with Griffin and Griffin' s parents is pure
hearsay insofar as it purports to establish Griffin's motivation. Indeed, Griffin's testi-
mony is inconsistent with Mraz'. Although General Counsel called Griffin as a witness,
Griffin's testimony is not binding on General Counsel. See United States of America v.
John Freeman, 302 F. 2d 347, 351-352 (C.A. 2) ; Johnson v. Baltimore and 0. R. Co., 208
F. 2d 633, 635 (C.A. 3).
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ration ) v. N.L.R.B., 345 F. 2d 264 (C.A. 2) that the Company violated Section
8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union in
December 1964, prior to the election.6
In April 1965 when the unit again consisted of 14, the Union obtained 9 cards
including those of Griffin and Wood. Its majority status at this time is as clear, but
no clearer, than it was in December 1964. If General Counsel prevails as to the
earlier date (as I find), there is no necessity of looking to the April cards. But if
General Counsel has not made out a case for December, then his case as to April must
also fall, for in that event the Company had not unlawfully refused to bargain prior
to the April cards and the record is silent as to any bargaining request thereafter.
III. THE REMEDY
In view of the widespread and far-reaching violations of Section 8 (a)( I), I shall
recommend a broad cease-and-desist order, as well as the customary affirmative order
directing the Company to bargain upon request and to post appropriate notices.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing employees in the exercise of their
Section 7 rights as found above, the Company has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. By refusing to bargain with the Union as representative of its employees in an
appropriate unit after November 30, 1964, the Company has engaged in an unfair
labor practice affecting commerce within the meaning of Section 8(a)(5) and (1)
of the Act.
ORDER
Accordingly , on the basis of the foregoing findings and conclusions and on the
entire record, and pursuant to Section 10(c) of the Act, it is recommended that
Respondent , I.M. Machinery Corporation , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating or threatening employees because of their union activities, or
promising or granting benefits to employees in an effort to dissuade them from
supporting a union, or in any other manner interfering with, restraining , or coercing
employees in the exercise of their rights under Section 7 of the Act.
(b) Refusing to bargain with International Brotherhood of Boilermakers , Iron Ship'
Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 609, as the exclusive
bargaining representative of the Respondent 's production and maintenance employees
( excluding office clerical employees , guards, and supervisors as defined in the Act).
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above -named labor organization
as the statutory representative of the employees in the above -described unit.
(b) Post at its plant at Plant City, Florida, copies of the attached notice marked
"Appendix ." 7 Copies of such notice, to be furnished by the Regional Director for
Region 12 , shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered , defaced, or covered by
any other material.
e Respondent's counsel directs my attention to TMT Trailer Ferry, Inc., 152 NLRB
1495. But in that case the employees whose cards the Board refused to count made elrly
efforts to recover their cards from the Union ; Griffin and Wood made no such efforts here.
Also in that case the employees' disaffection occurred in the absence of unfair labor prac-
tices. The Company's claim that it doubted the majority in good faith is foreclosed by
Its unfair labor practices.
7In the event that this Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order be enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order "
HILTON MOBILE HOMES 873.
(c) Notify the Regional Director for Region 12, in writing, within 20 days from the
date of the receipt of this Decision, what steps the Respondent has taken to comply
herewith.8
8In the event that this Order Is adopted by the Board, this provision shall be modified
to read, "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain with International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 609, as the
representative of our employees.
All our employees have the right to join or assist a union. WE WILL NOT ques-
tion them as to whether they support a union, threaten them for doing so, offer
them benefits in an effort to get them to leave the union, or interfere with them
in any way because of their union activity.
T.M. MACHINERY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(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 other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, Room 706
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711.
Hilton Mobile Homes and Key City Lodge No. 1238, International
Association of Machinists, AFL-CIO. Case No. 18-CA-1852.
November 16,1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner James V. Constantine issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning 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. He also found that the Respondent had not
engaged in other unfair labor practices and recommended that the
complaint be dismissed as to them. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and a supporting
brief. The Respondent also filed exceptions with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
155 NLRB No. 57.