John S. Barnes Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1970

180 N.L.R.B. 911 (N.L.R.B. 1970)

JOHN S. BARNES CORP. 911
John S. Barnes Corporation and • Lodge No. 1553,
International Association of Machinists , AFL-CIO
John S. Barnes Corporation and John L. Brown
John S. Barnes Corporation and Lodge No. 1553,
International Association of Machinists,
AFL-CIO, Petitioner . Cases 13-CA-6407,
13-CA-6637, I3-CA-7049, 13-CA-7027, and
13-RC-10159
January 23, 1970
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On August 26, 1966, Trial Examiner Eugene E.
Dixon issued his Decision in the above -entitled
consolidated proceeding , finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices alleged in the
complaint 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 recommended that the petition in
Case 13-RC-10159 be dismissed and all proceedings
in that case be vacated. The Respondent filed
exceptions to the Trial Examiner ' s Decision and a
brief in support thereof . The General Counsel and
the Charging Party filed cross -exceptions to the
Trial Examiner 's Decision and briefs in support of
such cross -exceptions . Respondent then filed a brief
in answer to the cross-exceptions of the General
Counsel and the Charging Party,' and the General
Counsel filed an answering brief.
On January 9, 1967, , the National Labor
Relations Board , having duly considered the
Respondent's exceptions, ordered that the record in
these proceedings be reopened and that a further
hearing be held before the Trial Examiner for the
purpose of adducing further evidence bearing on the
question of the authenticity of the signatures
appearing on the union authorization cards which
were used to establish the Charging Party's majority
status. The Board also ordered that , upon the
conclusions of such further hearing , the Trial
Examiner prepare a Supplemental Decision
containing findings of fact as to the authenticity of
the union authorization cards, conclusions of law,
and recommendations.
Pursuant to the above order , the Trial Examiner
held a supplemental hearing and on August 28,
1967, issued his Supplemental Decision reaffirming
his finding in his initial Decision that a majority of
Respondent 's employees in an appropriate unit had
'The Charging Party also filed a motion to consolidate these cases with
Case 13-CA-7372, in which a Trial Examiner's Decision issued November
18, 1966. As it appeared that the charges alleged in Case 13-CA-7372
could properly be litigated separately , we denied the motion to consolidate.
See John S . Barnes Corporation , 165 NLRB No. 58, In. 2.
signed cards authorizing the Charging Party to
represent them for the purposes of collective
bargaining , and his recommendations, as set forth in
his initial Decision, that Respondent be ordered to
bargain with the Charging Party, as set forth in the
attached Trial Examiner's Supplemental Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Supplemental Decision and a brief
in support thereof, and the General Counsel filed
cross-exceptions to the Trial Examiner's
Supplemental Decision and a brief in support of the
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the initial and supplemental
hearings and finds that no prejudicial error was
committed.2 The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision
and Supplemental Decision, the exceptions,
cross-exceptions, and briefs, and the entire record in
these cases , and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations only to
the extent consistent herewith.
A. The 8(a)(1) Conduct
We agree with the Trial Examiner's conclusions
that Respondent, on numerous specified occasions,
violated Section 8(a)(1) of the Act. However, the
Trial Examiner inadvertently failed to find
specifically that certain conduct of the Respondent,
which he described as constituting interference,
restraint, and coercion, violated Section 8(a)(1) of
the Act. We find that the conduct so described by
the Trial Examiner violates Section 8(a)(1) of the
Act. In order to further clarify his Decision, we find
the following incidents set out in his Decision, but
not specifically found to violate the Act, constitute
interference, restraint, and coercion in violation of
Section 8(a)(I).
(1) Interrogation: Respondent's president
Svenson's questioning of employee Straley on April
1, 1964, regarding his solicitation of authorization
cards and whether he was attending a union meeting
that night; supervisor Johnson's separate questioning
on April 2 of employees Winters about attending the
above meeting and then denying him a raise after he
admitted his attendance and Livingston, asking him
how the Union got started and if he knew any of the
other employees involved in the "union deal";
'The General Counsel excepted to the ruling of the Trial Examiner, in
his Supplemental Decision at In. 17, reversing his rejection of testimony
offered as to what the signers of cards believed to be the purpose of the
cards , and considering this testimony together with other evidence. In view
of our ultimate conclusion , we do not consider the Trial Examiner's action
prejudicial error. We nevertheless emphasize our reluctance to consider
testimony regarding the subjective intent of the card signers Cf. N L R.B
v Gissel Packing Company. 395 U.S. 575, at 608, 1969.
180 NLRB No. 139
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson's questioning of Strickland about 2 weeks
later as to his feelings toward the Union; Johnson's
interrogation of Livingston on April 24 in regard to
attendance and events at the union meeting the night
before, and Johnson's questioning of employee
Seaton shortly after the same meeting about his
attendance; employee Carlisle's being asked by
Superintendent Stenberg shortly before another
meeting set for May 1, how he felt about the Union
and whether he was going to the meeting, and again
on May 2, in Stenberg's office, about the Union and
who had been at the meeting the night before;
Stenberg's conversation in his office in May 1964
with employee Sarver concerning Sarver's
attendance at union meetings and what the
"problem" was; Stenberg's questioning of Winters
on July 8 about being "one of the fellows behind
this union trouble"; Svenson's conversation with
employee Holder in late July about the Union's
buying him a car; Stenberg's questioning employee
Strickland in late 1964 about who was passing out
cards; and Stenberg's calling employee Huckabee to
his office on March 9, 1965, and expressing surprise
at Huckabee's continued union activities.
(2) Telling or implying to employees that their
union activities were under surveillance- Svenson's
statement to employee Straley on April 1, 1964 that
he heard Straley was soliciting cards; Stenberg's
reading the names of employees who had attended a
union meeting to employee Carlisle on May 2, 1964;
Stenberg's and Svenson's accusing Winters of being
one of the fellows behind this union trouble on July
7, 1964; Stenberg's reply to Huckabee on March 17,
1965, that employees keep going to the union hall,
implying he knew Huckabee went to the union hall;
Stenberg's accusing employee Bain in May 1965 of
being union-minded; on March 8, 1965, Stenberg's
telling Straley he knew someone had spoken to
Straley about the Union; and on March 12, 1965,
Svenson's statement to Roskopp that he was not
keeping "his nose clean."
(3) Threats: Johnson's statement, in the context of
keeping the Union out, to employee Strickland in
mid-April 1964 about getting rid of people;
Stenberg's and Svenson's conversation with Winters
on July 7, 1964, about disturbing the relationship in
the shop, and the act of sending him home without
pay for "punishment"; and Svenson's statement to
Hill on August 10 and 11, 1964, that he could let
Hill go anytime he wanted to and that Hill might
not be there tomorrow.
(4) Inducing employees to revoke authorizations:
In early August 1964, Stenberg prepared a
statement for Strickland which Strickland signed
allegedly rejecting the Union; and in July 1965,
Stenberg and Svenson accused Brown of filing
charges against the Company and, subsequently,
insisted that he sign a company-prepared statement
disavowing any interest in the charge and in the
Union.
The Trial Examiner further found that the
interrogation by Respondent's counsel of the
employees went far beyond anything permissible for
the legitimate preparation of their case. Plant
Manager Stenberg was also present at these
conferences with employees and participated in the
questioning. We find that such interrogation is
violative of Section 8(a)(1) of the Act.
In addition to the above violations of Section
8(a)(1) of the Act mentioned in the Trial Examiner's
Decision, we find the following conduct of
Respondent, not mentioned in the Decision, was
also unlawful:
(1) In late May 1964, Stenberg approached
Roskopp in the repair department and asked him if
Delbert Hill was talking about the Union. Roskopp
replied in the negative.
(2) In early 1965, Strickland reported to Stenberg
that cards were being passed out. Stenberg then read
off the names of people he believed were passing out
the cards. Strickland, however, refused to give a
reply as to the names read off.
(3) On March 9, 1965, Svenson came into the
department where Edwards and LaSala were
working, called them together, and stated: " . .
There are lots of advantages at John S. Barnes and
one of them is that you can go someplace else and
look for a job."
(4) In August 1965, Stenberg called employee
Bain to his office and conversed about Bain's riding
to work with Renick Shank. Shank had been on the
Union shop committee, but no longer worked at
Barnes. Bain told Stenberg he rode to work with
Shank because his own car was broken down.
Stenberg said he did not care about the car and
threatened to fire Bain.
B. The 8(a)(3) Conduct
The Trial Examiner found that the increase of
hours of LaSala and Edwards was based essentially
on antiunion considerations. We agree, and conclude
that by this action Respondent violated Section
8(a)(3) and (I) of the Act. For the reasons stated by
the Trial Examiner, we find that the discharge of
Roskopp, as well as the discharge of Brown,
violated Section 8(a)(3) and (1) of the Act.
C. The Section 8(a)(5) Violation
The Trial Examiner found that the Union had
valid authorization cards signed by a majority of
employees in the appropriate unit, and therefore
Respondent's refusal to grant the Union's request
for recognition was violative of Section 8(a)(5) of
the Act. Accordingly, the Trial Examiner
recommended a bargaining order, and that all
proceedings in the representation case be vacated,
although there was otherwise sufficient evidence to
set aside the election. We find merit in Respondent's
exceptions in this regard.
JOHN S. BARNES CORP. 913
In determining the Union ' s majority status, the
Trial Examiner counted as valid at least seven cards
signed by employees in the Union's 1964 campaign.
The cards in question were white in color, and were
about eight inches long, with a fold in the middle
and a return address on the bottom half of the
reverse side. The text on the top half of the card
read as follows:
CONFIDENTIAL AUTHORIZATION
CARD
In order that the National Labor Relations Board
may conduct a secret ballot election , one-third of
the employees must sign and return this card. If
you care about your conditions , don't delay. Sign
today.
CONFIDENTIAL
The text on the bottom half of the card, which was
followed by space for signature, address, phone,
employer, classification and shift, read as follows:
I hereby authorize the International Association
of Machinists to represent me in collective
bargaining on wages and working conditions. It is
my understanding that I will be invited to join
should the union be elected to represent me.
Many employees who signed 1964 cards, but
excluding at least the seven referred to above, signed
again in 1965.3
Viewing the full text of the 1964 cards, we
conclude that the cards do not clearly and
unambiguously authorize the Union to represent the
signers thereof for collective-bargaining purposes.
The text on the top half of the card states that the
purpose of signing the card is to obtain a
Board-conducted election, and the authorization set
forth on the bottom half is substantially tempered
by another reference to an election. In contrast, the
cards utilized by the Union in the 1965 campaign -
but not signed by seven of the employees -- were
devoid of any reference to an election. Since the
seven 1964 cards are necessary to establish majority
status, we find that the General Counsel has failed
to establish that the Union was the duly designated
bargaining agent of the employees in the appropriate
bargaining unit at the time of the demand for
recognition., Accordingly, we do not adopt those
portions of the Trial Examiner' s Decision finding
that Respondent violated Section 8(a)(5) and
recommending a bargaining order, but instead we
shall dismiss the Section 8(a)(5) allegation and
direct that a second election be held.5
'The 1965 cards were yellow in color , and stated in heavy block letters
across the top, "Yes, I want the IAM ." Beneath that the card read, in
ordinary type, as follows . 1, the undersigned, an employee of - - - -
hereby authorize the International Association
of Machinists ([AM) to act as my collective bargaining agent with the
company for wages, hours and working conditions It is my understanding
that I will be invited to join the lAM.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
John S. Barnes Corporation, Rockford, Illinois, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Delete paragraphs 1(a) and 2(a) from the
Recommended Order and renumber the subsequent
paragraphs accordingly.
2. Delete the first and last two indented
paragraphs of the notice marked "Appendix" that
relate to bargaining and the appropriate unit.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
unfair labor practices not specifically found herein.
[Direction of Second Election omitted from
publication.]
'The Trial Examiner found that the unit was comprised of 202
employees and that the Union had 107 valid cards , including the seven
1964 cards which we have rejected We would modify the unit's scope to
204 by including employees Lindstrand and Beauchamp , both of whom
were on extended sick leave With respect to the cards of Don Shelby and
Charles W Shelby, we would also disavow the Trial Examiner's conclusion
that more weight should be accorded the testimony of a person identifying
the signature of his child than that of the person's siblings These
modifications , however, do not affect our ultimate computation that the
Union lacked a valid card majority at the time of its demand
'As we have disposed of the 8 ( a)(5) allegation on the basis of the patent
ambiguity of the text of the seven crucial 1964 cards, we find it
unnecessary to pass upon Respondent 's contention that the Union solicited
cards through oral misrepresentations that the purpose therefor was to
obtain an election
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DixON, Trial Examiner: This proceeding
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called
the Act, was heard at Rockford, Illinois, on various dates
from November 3, 1965, to January 13, 1966.
On May 11, 1964, the original charge in Case
I3-CA-6407 was filed. Thereafter amended charges were
filed on June 2, July 4, and 22, and August 14. On August
12, 1964, a Board election was held (Case 13-RC-10159)
resulting in objections and challenges being filed by the
Union which are still outstanding On August 24, 1964,
the original charge was filed in Case l3-CA-6637 and an
amended charge was filed on October 12. On January 22,
1965, an informal settlement was entered into regarding
these then outstanding unfair labor practice charges.' On
March 29, 1965, an individual charge was filed in Case
l3-CA-7027. On June 4, 1965, the original charge in Case
13-CA-7049 was filed and an amended charge filed June
10. On September 2, 1965, the Regional Director
withdrew the settlement agreement. On September, 7,
'Certain alleged discriminatory discharges were settled by payments for
lost earnings , reinstatement not being desired by the individuals involved
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1965, the complaint and order consolidating the complaint
cases was issued. On September 9, 1965, a further order
consolidating the representation matter with the complaint
cases was issued.
The complaint alleges various violations of Section
8(a)(I), (3), and (5) of the Act. In its duly filed answer the
Respondent denies the commission of any unfair labor
practices.
At the hearing the General Counsel moved to amend
the complaint by adding an allegation that on or about
March 9, 1965, Respondent discriminatorily refused to
grant a wage increase to Clyde Edwards. In their brief in
an introductory section entitled "Statement of the Case"
the General Counsel say that "Counsel for the General
Counsel, in this brief, make the appropriate motion to
further amend the complaint to add the transfer of
Donald Rarrieck and reduction of hours of Roy Straley,
which constituted violations of Section 8(a)(3) and (1) of
the Act." In the circumstances I deny the motion.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
At all times material herein Respondent has been a
corporation duly organized under the laws of the State of
Delaware and has maintained its principal office and place
of business in Rockford, Illinois , where it has been
engaged in the manufacture of hydraulic pumps and
limited machine tools. During the calendar year 1964, in
the course and conduct of its business , Respondent
manufactured, sold and distributed products valued in
excess of $500,000 more than $50,000 worth of which
were shipped directly from its place of business in Illinois
to other States of the Union At all times material
Respondent has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Lodge No. 1553, International Association of
Machinists , AFL-CIO, at all times material has been a
labor organization within the meaning of Section 2(5) of
the Act.
Introduction
The Union' s campaign to organize Respondent's
employees began in the early spring of 1964. Just prior to
this time, about the first of the year, Respondent began
moving its production facilities into a new plant in
Rockford located in what is known as the Odin Industrial
Plaza . The move took several months to complete. At the
time of the hearing Respondent still maintained its
executive offices and some engineering facilities at its old
location.
As soon as the union organizing effort began,
Respondent launched a vigorous counter-campaign.
Among other things that Respondent did was to
circularize its employees on numerous occasions setting
forth its arguments against unionization and its reasons
why the employees should not join the Union. The
General Counsel contends that these communications
considered in their overall context violated Section 8(a)(1)
of the Act. This may be, but since there is substantial
other conduct herein by Respondent that contravenes that
section of the Act, I deem it unnecessary to make a
specific finding on this manner. Likewise, there is
considerable evidence regarding Respondent's officials
standing outside the plant for long periods of time
watching the Union as it handbilled the employees. This,
too, the General Counsel contends was a violation of
Section 8(a)(1) of the Act being tantamount to illegal
surveillance . This too, may be correct, but again I decline
to make a specific finding on it due to the fact that there
is substantial other evidence in the record of Respondent's
illegal surveillance.
The Credibility of Stenberg and Svenson
A literal plethora of violations of the Act was alleged in
the complaint herein, the vast majority of them are being
attributed to Respondent's President E. J. Svenson and to
its Plant Manager William Stenberg. As a result these
two testified in the hearing at great length. In their brief
the General Counsel attack the credibility of these two
witnesses and devote a substantial initial section of their
brief to an analysis of that credibility. I agree with the
General Counsel's position and set forth my reactions and
conclusions regarding this credibility as a preface to this
decision.
Not only was Stenberg's testimony replete with
equivocation, evasiveness, self-contradictions and often in
conflict with other testimony or evidence offered by
Respondent' but there were also direct conflicts between a
sworn statement he gave to a Board agent on May 27,
1964, and his oral testimony before me. On the witness
stand Stenberg testified in substance that working foremen
are not supervisors and are nothing more than "A little
bit more experienced" than other employees.
The evidence shows that Respondent classified Howard
Olson and Phil Guetschow as working foremen. Stenberg
denied on the stand ever having told Olson or Guetschow
or anyone else that those two were supervisors. He further
testified that Olson had no authority to reprimand, hire or
fire, or discipline employees. In Stenberg's sworn
statement of May 27, 1964, he had said that "Both Phil
Guetschow and Howard Olson are supervisors. I
personally so informed them and I . . . made this
statement to (induce) the Board Agent to permit my
presence while . . . their statements (sic) are taken. They
are management and so is Eric Johnson." In the same
statement in explaining why he had discharged an
employee by the name of McVay he further stated,
"Another reason was his wandering in the plant. I'm sure
his foreman, Howard Olson, reprimanded him for this
'For example Stenberg denied calling anyone into the office or discussing
there with anyone the Union or the question of voting in the pending
Board election . This is in direct conflict with the testimony of Douglas
Nelson who was called as a witness by Respondent. Nelson testified that
shortly before the election he was called into the office and told by
Stenberg that he should vote in the election . This was followed by a
discussion of Nelson 's eligibility to vote. Stenberg 's testimony here is also
in direct conflict with an admission in Respondent 's request for review of
the Regional Director ' s Ruling on Objections Therein it was stated.
. The Company received a letter from the union advising that
(employees ) Englin and Holder would act as the union's observers at the
August 12 election . This came to Stenberg during the afternoon of
August 8 , 1964. He called Englin to his desk , showed him the letter, and
said he was surprised to see Englin's name and was curious to know why
Englin was interested in a union now ... There was a frank and friendly
discussion . . . Stenberg told Englin point blank that he was not trying
to change his mind about the union - he was just curious as to Englin's
reasons.
JOHN S. BARNES CORP.
many times. We have a discipline system and Howard
Olson could have disciplined McVay for it."
Clearly, Stenberg 's credibility is effectively and
completely impunged by the foregoing.
The testimony of Respondent's president Svenson is
hardly more worthy of credence than Stenberg's. Not only
does it, too, reflect many conflicts and inconsistencies but
it also shows at times a lack of candor and a disposition
to quibble and fence with counsel.' An example of
Svenson's lack of candor appears in his testimony
regarding his having called to his home and talked to
most if not all the alleged supervisors herein whose ballots
were challenged in the election. This occurred during a
recess in the hearing while Svenson was recuperating from
surgery. The entire context of the record including
testimony of Respondent's own witnesses shows that the
purpose of Svenson in calling these people to his home
was directly and primarily connected with the testimony
about their supervisory status. Yet Svenson testified that
he ". . . didn't call them in for any other purposes except .
.. to let them know (that he) was recovering very nicely'
and . . . would be back in the plant again" and that they
had "nothing to worry about."
Like Stenberg, there is also a direct conflict between
Svenson's oral testimony and a sworn statement he gave a
Board agent on May 27, 1964. Thus, in the statement he
said that Phil Guetschow was "A foreman in the machine
shop and is a supervisor in charge of setting up
machines." On the witness stand Svenson denied that
Guetschow was a supervisor.
Svenson claimed in effect that he had been coerced by
the Board agent into giving the statement by being told
that if he did not make a statement all the charges against
Respondent "would be held true." This explanation serves
only to add to my skepticism about Svenson's credibility.
In the first place if he was told what he claims he was
told, it would hardly justify his making any
misrepresentations under oath. In any event, from my
observation of Svenson during this relatively lengthy
hearing both on and off the witness stand it was obvious
to me that Svenson was one of the least likely persons
that I could think of who could be coerced by anyone,
Board agent or otherwise , into giving a statement.
Considering the serious reflection cast upon the
credibility of Stenberg and Svenson I have credited in
substantial measure, as will be seen, the General Counsel's
testimony in matters involving these two witnesses. In
disposing of this evidence I do not attempt to analyze
word by word the entire record nor to set forth the two
company officials ' versions of incidents or their denials
thereof.' My doing this should not be taken as a failure on
my part to have examined and weighed the testimony that
these two gave. It simply means that I do not credit, in
such instances, their testimony.
Interference, Restraint, and Coercion
On April 1, 1964, according to Roy Straley's credited
testimony Respondent ' s President Svenson took him into
an office of the production floor and said to him, "I
understand you are not happy here." Straley replied,
"Yes, I am ." Svenson said , " I heard you were soliciting
'For a similar reaction to the testimony of Svenson some 15 years earlier
see John S . Barnes Corporation, 92 NLRB 589, 594 particularly fn. 8.
'He had undergone surgery shortly before that time at the Mayo Clinic
'A great deal of the evidence adduced against them stands undenied in
the record.
915
union cards ." Straley denied this, and Svenson said, "If
you need help or anything, be sure to come to me,
because I am here to help protect you from the Union."
The conversation ended with Svenson's asking Straley if
he was going to the union meeting that night. Straley
replied that he bowled on Wednesdays. There was, indeed,
a union meeting that night at the union hall on 15th
Avenue in Rockford. This was the first meeting open to
all of Respondent's employees.
According to the testimony of former employee Joel
Winters on the day following the union meeting he asked
his supervisor, Eric Johnson, for a wage increase. Johnson
asked him if he had gone to the Union meeting the night
before. Winters said that he had. Johnson said, "Well, I
can hardly give you a 10-cent raise and have you
attending union meetings . It would make me look kind of
bad. You'll have to promise not to go to any more
meetings before I will give you the raise." Winters said,
"Okay, I promise that" and as he started to walk away
Johnson said, "By the way, (pointing to the employee)
was Wally Williams at that union meeting?" Winters said,
"I don't know. I don't have to answer anything like that"
and walked away as Johnson pointed to some other
employees.
About this same time according to the testimony of
Claude Livingston, Johnson came to him in the plant and
asked, "how this union deal got started, whether it had
gotten started in the old plant or the new plant."
Livingston replied, "I don't know, Eric, I don't know
anything about it." Johnson then asked if he "knew any
of the guys that were involved in this union deal" and
Livingston said that he did not. Johnson then said, "Well,
I will tell you one thing. Whoever the guys are that
started this union deal , they are not going to be here very
long."
About 2 weeks later according to the testimony of
employee Thomas Strickland he asked Johnson in the
shop for a wage increase and a transfer to the stockroom.
Johnson asked Strickland how he felt about the Union
and Strickland replied that he was against it. Johnson
then asked if Strickland would help keep the Union out.
Strickland said that he would. Johnson then painted to
two employees one of whom was Roger McVay and said,
"If we could get rid of people like that, we wouldn't have
any problems at all. 116
In his testimony, Johnson admitted that he had
probably discussed the Union with employees during 1964
and that he recalled asking Livingston whether he had
attended a union meeting but denied interrogating any
other employees about union meetings . Except for this
testimony none of the foregoing was denied by Johnson. I
credit the General Counsel' s witnesses.
On April 23, another union meeting was held. The
following day Johnson spoke to Livingston who testified
credibly about it as follows:
Mr. Johnson asked me if I went to the union meeting
last night . And I said, "yes, Eric, I did. I am not going
to lie to you." He said, "Did they have a good crowd?"
I said , "Yes, they (had) a fairly good crowd." He asked
me (why) this was going on. I said , "Eric, at least if we
get a union in here , we will have better wages and
better conditions." He mentioned to me, he said, "I will
tell you one thing, if the Union does get in, you are not
going to have it as easy as you have had it." I said, "It
doesn' t make any difference, at least I will be making a
decent wage." And then from what I could gather
'The record shows that McVay was a supporter of the Union.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
looking at him, he must have gotten mad because he
just shook his head and walked off
Shortly after the same union meeting , according to the
testimony of Jim Seaton, Johnson came up to him in the
plant and asked if he had attended a meeting . Seaton
replied that he had attended a baseball meeting that
evening and Johnson said that he had heard there was a
union meeting . The foregoing testimony was not denied by
Johnson and I credit it.
A third union meeting was held on May 1, 1964.
Shortly before this meeting, according to the credited
testimony of former employee James Carlisle, Plant
Manager Stenberg stopped him in the plant and asked
him how he felt about the Union. Carlisle answered that
he was against the Union. Stenberg then asked him if he
was going to the union meeting and Carlisle said that he
thought he would. According to Carlisle's further credited
testimony on the day after the meeting he was called into
Stenberg's office. There Stenberg asked him who had been
at the meeting . When Carlisle did not make an immediate
reply, Stenberg started reading the names of the
employees to him. Carlisle then stated which of the
employees Stenberg named had been at the meeting. At
this time Stenberg also asked Carlisle if he had signed a
union card. Carlisle replied also that he had not.
According to the credited testimony of Winters, around
May 10 Supervisor Howard Olson' came to him and
remarked that employee Wally Williams had gotten a
"raw deal." When Winters asked why, Olson stated that
Johnson had refused Olson's request for a transfer for
Williams because Williams was a union troublemaker"
Olson did not testify. I credit this testimony
notwithstanding that Johnson denied that Williams had
requested a transfer in 1964.
During May 1964, according to the credited testimony
of former employee Vernell Sarver he was called into
Stenberg's office. When he got there Sarver told Stenberg
that he knew what Stenberg wanted, that Stenberg knew
that he had been to a union meeting. When Stenberg
confirmed this, Sarver assured him he had no affiliation
with the Union but had j ust gone to see what it had to
offer. Then a discussion ensued as to what was "the
problem there." During the conversation Stenberg told
Sarver that he knew who was at the union meetings.
When Sarver apparently showed reluctance at confirming
the identity of any of these employees, Stenberg pulled out
a little black loose-leaf notebook and said that he had
"got all the names down and . knew who they were and
would take care of that."
According to the further credited testimony of Winters,
on July 7 he was called into the office and accused by
Stenberg and Svenson of being "one of the fellows behind
this union trouble," and told that Respondent was "going
to try to do something about it." Then Svenson said, "We
heard you had been talking about the union during
working hours " When Winters denied this, Svenson said,
"I think we can prove you have We don't like guys like
you coming in here, disturbing the relationship we have
with the people in our shop. . . . it is a lot of trouble for
us, if you just leave us alone ." Then Svenson said, "For
your punishment we are going to send you home at 3:30
without pay."
'The supervisory status of Olson is at issue. His status along with that of
Doug Nelson and Gerald Smuck among others (who also are involved in
some 8(a)(1) incidents) is disposed in the "Refusal to bargain" section of
this Decision
The following day when Winters returned to work he
was called into Stenberg's office. There he was told that
Respondent had decided to let him continue working. At
this time Stenberg told Winters about the former's job
with the Roper Company and what a "raw deal the Roper
people got from the Union." Stenberg went on to say that
"if the Union got in at Barnes the hours would be cut to
40, bonuses would be eliminated, and if a raise was
granted, it would only be a nickel and you would probably
have to go out on the street for 6 months to get that."
Stenberg ended the conversation by asking, "by the way,
when is the next handbill . . going to be out."
According to the credited testimony of Bobby Holder,
late in July Svenson came to him and another employee in
the shop and said, "I don't know what I can say and what
I can't say. I think under the freedom of speech we have
here I can say I will not work for a Union.", Shortly after
this on another occasion, Svenson came into Holder's
department and remarked, "There are rumors around that
the Union bought you that Thunderbird you are driving. I
just wonder whether that is true or not." Thereafter,
practically everytime Svenson saw Holder he called him
Thunderbird and would say, "How are you doing,
Thunderbird."
Vernell Sarver testified about a conversation with
Stenberg in late July or early August as follows:
I said how about what I have been hearing about this
40 hour cut if the Union gets in and that. He said,
"Well, this is about all we can do. If it gets in, we will
cut down to 40 hours." I said, "Man, I can't live on
that stuff," he said, "You know how to vote'?" And I
said, "That is right."
The Union election was scheduled for August 12. On
August 5, Respondent enclosed a card with each
employee's paycheck which read "VOTE NO" on
Wednesday, August 12." Edwards testified credibly that
on that day Svenson came to him and said, "In your
paycheck you will find two pieces of paper, one of those
you can cash for money and the other is not worth a
Goddamn. If the Union gets in , there will be no more
pieces of paper you can cash for money, and I don't know
what you will do with the other." Shortly after this, many
of these "VOTE NO" cards were posted around the plant
Svenson admitted that Respondent had purchased the
"VOTE NO" cards that had been distributed with the
employee checks. He also admitted that he had seen
several of these cards posted around the plant, but gave
no instructions to have them taken down According to
the undemed and credited testimony of Edwards, among
the many "VOTE NO" posters he saw around the plant,
one was on a lift truck whose operator drove through the
plant blowing the horn and pointing to the poster. Eric
Johnson standing smilingly nearby did nothing about it.
According to the credited testimony of Roy Schell
shortly before the election he had gone over to a machine
operated by employee Jim Cole in search of a tool. A
"VOTE NO" sign had been posted on Cole's workbench
and Schell asked who had posted it. Cole replied that it
had been posted by Foreman Nelson and told Schell to
take â–ºt down. Schell did so and walked back to his
machine . As he did he saw Stenberg watching him through
the office window. A few minutes later Schell was
called into Stenberg's office, where he was accused of
loafing . Schell explained that he had gone to Cole's
'it is interesting to note that in a letter from Svenson to the employees
dated August 7, he had stated, "FOR THE RECORD I am absolutely
opposed to a Union - in our plant "
JOHN S. BARNES CORP.
machine in search of a tool. Schell's supervisors Phil
Guetschow and Marvin Johnson who happened to be
present corroborated Schell. Stenberg told Schell that the
supervisors had saved his job. As Schell was leaving the
office, Stenberg commented that he now knew that Schell
was for the Union.
After the "VOTE NO" signs were posted around the
plant, some "VOTE YES" signs began to appear.
According to Schell's undenied and credited testimony, he
and employee Roy Straley posted a "VOTE YES" sign
shortly before the election and were ordered to tear it
down immediately by Supervisor Doug Nelson.
Eugene Englin was named as one of the union observers
for the election. Shortly thereafter he was called into the
office. About what transpired there, Englin testified
credibly as follows:
Mr. Stenberg said, "I am surprised." And I said, "I
figured you would be." And then we sat down at his
table. First he said I would like to tell you the
Company is going to file a charge against you - and
take you to court as an individual At that time I
replied for what. And then he said we have reason to
believe from a good source that you have been passing
on names that should not have been passed onto the
Union. In which I replied, "What names'?"
So, that conversation proceeded on, and he showed
me the letter that my name was on with Bob Holder,
we were to sit as union observers.
At that time he asked me what I thought I could
gain out of a union. Why I was doing this. That I am
not doing it merely because I am a do-gooder, he
wondered what I would personally gain out of it and I
said nothing.
Englin then proceeded to explain his position regarding
the Union after which Stenberg along with Chief
Inspector Frank Dergins (who was present) stated their
side at some length. It was explained to Englin that
Svenson had pioneered the Company and worked all his
life; that he did "not want any union whatsoever to
control his company or to tell him how to operate his
company. (That) He would close his doors before he
allowed this to happen." Dergins told Englin of an
experience he had in the Army where he had been the
spokesman for a group that had a problem and how as a
result he had been "left holding the bag " Gergins said
that this would happen to Englin. As a parting comment,
Sternberg told Englin to think over what they had
discussed and to make sure that he made the right move
and not to do something that he would "sorry for."
According to Thomas Strickland's undenied and
credited testimony, about a week before the election he
had given a statement to a labor board agent. He then
went to see Stenberg and showed him a copy of the
statement and added that he had filed charges against the
Company. Strickland told Stenberg that he wanted to
drop the charges. After reading Strickland's statement,
Stenberg told him that he would prepare a statement for
Strickland's signature. The following day, Strickland
signed a statement that Stenberg had prepared. It read as
follows.
I Thomas Strickland drop all charges against John S.
Barnes, Corporation and don't want anything else to do
with the Union.
Strickland left the statement with Stenberg who told him
917
that he would turn it over to the Company's lawyers, that
Strickland would have nothing to worry about.
According to Delbert Hill's credited testimony, about 2
days before the election Svenson came up to him in the
plant and asked him if he had holes in his head. Hill
replied, "No," and added, "There is one thing we do
agree on, this place does need a Union. That is why I am
trying so hard to get one in and you are trying so hard to
get one out." Svenson replied that he could let Hill go
anytime he wanted to. A day or so later, Svenson came to
Hill again and said, "This is the day we tangle." He then
told Hill to mark his ballot with red ink because he might
not be there on the morrow.
According to Edward's credited testimony, Svenson
also engaged him in a conversation in the plant on the day
of the election. Svenson said to him, "Today we fight."
Edwards replied that he did not see where it would be
necessary to fight and that the matter would be taken care
of by a democratic vote. Svenson claimed that
Respondent would win the election. Edwards said that he
was "not too concerned," about the outcome Svenson
said, "You will be concerned after I win this election "
The day after the election, the Union distributed a
handbill involving a cartoon presumably uncomplementary
to Svenson On the morning after the handbill was
distributed, according to the credited testimony of Englin,
Maintenance Foreman Gerald Smuck and employee
James Carlisle walked him to the entrance of the plant
and there berated him in connection with the handbill.
Carlisle even threatened to give Englin a beating. After
this incident, Englin went to the coffee machine followed
by Carlisle. As they were standing there, Svenson came up
and shook Carlisle's hand saying "I would like to shake a
hand of a man that was with me." Svenson then pointed
at Englin and said, "Not this man," and walked off.
From the time of the election until December,
according to Strickland's testimony, he had many
conversations with Stenberg in which he kept Stenberg
informed about what was going on in the plant In one of
these conversations he told Stenberg that union cards were
being again passed out. When Stenberg asked him who
was passing out the cards, he told Stenberg that he
"would help him (all) he could to help keep the union out,
but wouldn't give him any names." Stenberg replied
that he did not need to do so because Stenberg "knew
everybody down there anyway."
According to Strickland's further credited testimony,
some of his conversations with Stenberg pertained to
letters Strickland had received from Board agents seeking
an interview with him. Strickland showed these letters to
Stenberg who advised him not to see the Board agents.
Stenberg also advised him not to sign anything if he were
contacted. Acting on this advice, Strickland refused to
sign a statement when contacted by a Board agent.
Stenberg gave similar advice to two other employees in
late 1964 Roy Schell and Thomas Kruse. Schell
testified credibly that Stenberg came to him in late
September and told him that if the government lawyers
got in touch with him "not to sign anything because the
Company lawyer had told him if we did they would get us
in the hearing and make liars out of us." About this
matter Kruse testified substantially the same as Schell.
According to the credited testimony of Jack Huckabee
on March 17, 1965, he stopped Stenberg in the shop to
inquire why he had not received a pay increase that he
had requested Stenberg replied that the employees "keep
going down to the Union hall" and added that he
"couldn't keep everything going at the same time."
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the credited testimony of Edwards and
LaSala, Svenson came to them on March 30, 1965, and
began a conversation by asking if they had read an article
in the Rockford evening paper concerning a Supreme
Court decision. Edwards replied that he had. Svenson then
displayed a clipping from the newspaper and observed, "it
is about time that the government has given management
some of our rights ... now then I can close these doors
anytime 1 want to."
According to the credited testimony of Larry Bain, he
was called into Stenberg's office in May of 1965 where he
was told that he was getting a wage increase that he had
requested. He and Stenberg then got to talking about
other things and Stenberg said, "Larry, I know you are
union minded. You know if the Union comes in Svenson
will close the doors John S . Barnes would close the
doors." Bain said something to the effect that they could
not do this. Stenberg went on to say that "they could do
it and that the way they could do it is by selling their
machinery so that the stockholders would get their money
back and no one would be hurt about it."
The hearing in this case began on November 3, 1965.
Several employees testified credibly about being called
into Stenberg's office after the hearing began and being
questioned by Respondent's counsel in the presence of
Stenberg. Thus, LaSala testified that he was called into
the office November 2 or 3 where Stenberg introduced
him to Respondent's counsel who told him that they
would like to ask a few questions. According to LaSala he
was advised that he did not have to answer the questions
if he did not want to. He was then asked "what was going
on or what was wrong at the shop." He was shown an
authorization card and asked if he had signed such a card.
He was also asked if he thought the employees' union
meetings had been kept under surveillance. Finally he was
asked if any reason had been given to him for the
extension in his working hours.
Thomas Kruse testified that he was called in the first
week in November where he was asked if he "was
participating in any activities as far as the Imperial Motel
400" was concerned.' He was asked what questions the
General Counsel's representative had been asking him at
the motel. According to Kruse, in addition to Stenberg's
being present, on this occasion, he also participated in the
questioning.
Employee Madeline Stone testified that she was called
into Stenberg's office late in 1965. Two other gentlemen
were with Stenberg. She was shown a blank authorization
card and asked why she had signed a card. She was also
asked where she had received the card. Finally, she was
asked if she had ever attended any of the union meetings.
Another employee Betty Hollon also testified about being
called into the office in early November where she was
introduced to Respondent's counsel. She was asked if she
had signed a card and replied that she had . She was then
asked why she had signed a card and how she thought the
Union would help. None of Respondent's counsel testified
and the rebuttal such as it was rests solely on Stenberg's
testimony . I credit General Counsel 's witnesses.
It is clear from the foregoing evidence and I so find
that Respondent interfered with, restrained and coerced its
employees with a course of conduct beginning just prior to
the Union's first meeting and continuing up to the time of
the hearing herein ." This conduct involved numerous
threats of reprisal against the employee because of the
'One of the General Counsel 's representatives had been interviewing
witnesses at this motel.
union activities," systematic and continued interrogation
of them about their own and their fellow employees' union
activities,' 2 disparate enforcement of what was tantamount
to a no-solicitation rule by the posting and publicizing of
"VOTE NO" signs while at the same time preventing and
suppressing any contrary action; advising employees to
refuse to cooperate with Board agents; refusing a wage
increase or transfer or giving the impression that a wage
increase was refused because of an employees union
activities;" conditioning a wage increase on a promise of
abstenance from union activities;1° and telling employees
or implying to them that their union activities are under
Respondent's surveillance." The record also reflects as
shown below substantial evidence on Respondent's part of
actual surveillance.
It is clear from Stenberg's interrogation of Straley on
April I about attending the union meeting that was held
that evening (as found above) that Respondent knew in
advance that such a meeting was going to be held.
According to the testimony of Bobby Holder, at 7:30 that
night as he was walking toward the union hall entrance he
saw Stenberg driving by on 15th Avenue looking toward
the hall. A short while later when he had come outside to
get some fresh air he saw Personnel Manager Jednick
sitting in his car at the traffic light at the intersection of
9th Street and 15th Avenue. The union hall is located on
the corner of 9th Street and 15th Avenue.
The Union's second meeting was held on April 23,
1964. According to Winter's testimony, as he was driving
toward the hall with Vernell Sarver they saw Stenberg
turn south into 6th Street at the intersection of 6th Street
and 15th Avenue. They followed him. Stenberg went
around the block, drove over to 9th Street and drove
north on 9th Street past the union hall slowly. After
Stenberg had passed, the two employees put their car in a
parking lot opposite the union hall. As they crossed the
street they observed Personnel Manager Jednick in a car
at the intersection of 9th Street and 15th Avenue. When
the light changed Jednick drove past the union hall.
Bobby Holder testified that he saw Stenberg at about 7:30
in the evening drive by the hall headed east on 15th
Avenue and that a few minutes later he saw Stenberg
drive slowly by the hall looking toward it this time driving
west on 15th Avenue.
The undenied and credited testimony shows that in
February 1965, John Brown discussed with other union
leaders, Clyde Edwards, Sam LaSala, and Peter Roskopp
"The interrogation by Respondent 's counsel of the employees went far
beyond anything permissible for the legitimate preparation of their case
"Johnson to Livingston on April 2, 1964, of discharge of Union
instigators; Johnson to Livingston April 24 , that work would become more
arduous ; Stenberg to Winters July 8, 1964, of elimination of bonuses and
curtailing of the size of wage increases ; Svenson to Holder in late July
1964 that he would not work with a union ; Stenberg to Sarver August 5,
regarding a cut in hours ; Svenson to Edwards August 5, 1964, regarding
no more pieces of paper to cash ; Stenberg to Englin prior to the election
about Englin 's holding the bag and about the closing Respondent's doors;
August 12 , Svenson to Edwards that the latter would be concerned after
Respondent won the election, just after the election, Carlisle 's threat of
physical attack on Englin in the presence of Schmuck under circumstances
amounting to condonance , March 3, Svenson to LaSala and Edwards that
he could now close the doors anytime he wanted to ; May 1965 Stenberg to
Bain that Respondent would close its doors.
"These are so numerous and obvious that there is no need for specific
repetition
"March 17, 1965, Stenberg to Huckabee; May 10 , 1964, Olson to
Winters.
"April 2 , 1964, Johnson to Winters.
"May of 1964 Stenberg to Sarver ; Fall of 1964 Stenberg to Strickland.
JOHN S. BARNES CORP. 919
what steps they could take to "further the movement in
the machinist Union." To this end Brown met with a
representative of the United Auto Workers Union on two
occasions in February with the result that a meeting for
Respondent's employees was arranged for March 8 at the
UAW hall located on North Second Street in Rockford
Overhearing Brown trying to get some employees to
come to this meeting , employee Thomas Strickland (who
testified credibly) called Plant Manager Stenberg on the
telephone16 and told him that "there was another Union
trying to get into Barnes and they were having a Union
meeting that night"; that he didn't know where the
meeting was to be held but that he "would find out for
him." This he did, reporting to Stenberg by telephone an
hour later.
On this same day, employee Roy Straley learned of the
meeting and passed the information on to fellow employee
Alby Kirby. A short time later Stenberg approached
Straley at his machine and commented that he had heard
that someone had spoken to Straley about the Union.
Straley admitted it, telling Stenberg that he had been
invited to a union meeting that night by Renick, Shank,
and Sam Huckabee.
That evening, according to the testimony of employee
Frank Kolcon, as he was walking north on the west side
of North Second Street towards the union hall, he
observed Stenberg sitting in a car at the intersection of
North Second Street and State Street. Stenberg's car was
next to the curb on the west side of North Second Street
and was headed south. Stenberg had stopped for a traffic
light at the intersection and his directional lights were
indicating a right turn into State Street. As Kolcon
crossed the intersection he was no more than a few feet
from Stenberg's car. Kolcon exchanged glances with
Stenberg and nodded his head, but Stenberg did not
acknowledge the greeting. After Kolcon had passed
Stenberg's car Kolcon proceeded north to the entrance of
the union hall. There he found John Brown standing on
the sidewalk just outside the union hall. According to
Brown's testimony, he had stationed himself just outside
the entrance of the union hall for the purpose of directing
late employees to the meeting room.
The following day, according to Sam Huckabee's
credited testimony, Stenberg called Huckabee into his
office and told him that he was surprised at Huckabee.
When Huckabee asked in what way, Stenberg alluded to
his union activity. Huckabee pointed out that he was
dissatisfied with his pay and insurance and that some of
the employees were also complaining about working
conditions. Stenberg replied that the Company was
"working on the insurance ." In the conversation he also
told Huckabee that'he could name every employee who
had gone to the Union meeting the night before.
On March 22, 1965, another meeting of Respondent's
employees was held at the UAW Hall on North Second
Street. Several employees testified about seeing Stenberg
drive by the Union hall several times that evening just
before the meeting began . Thus, former employee James
Carlisle testified that he saw Stenberg's car drive by the
hall (which incidentally was located on a one way street)
three times, twice on the far side of the street and once on
"Strickland had been supplying Stenberg with information about the
union activities of the employees prior to this and at this point , because
employees were talking about his "going upstairs (to the office) too
much ," he decided that it was wiser to call Stenberg on the telephone.
Thereafter his contacts with Stenberg were made that way, or Stenberg
would come to see him in the stockroom.
the near side. While Carlisle could not see who the driver
was, he did recognize the car and the female passenger in
the car as "a girl from the bowling alley Stenberg
generally took" out. That it was indeed Stenberg driving
the car was confirmed in the testimony of several other
employees who testified that they saw him drive by with a
female passenger. According to Carlisle's further
testimony, the following morning he asked Stenberg if he
had been driving by the union hall the night before.
Stenberg denied that he had done so. When Carlisle told
Stenberg he had seen him drive by three times, Stenberg
finally admitted that he had driven by the hall the
previous night.
In his testimony Stenberg admitted that on occasion
during the periods in question he drove past both the
UAW Hall on North Second Street and also the
Machinist Hall located on Ninth Street in Rockford. He
denied however that he knew of any union meetings that
were being held on such occasions, or that he drove by
them for the purpose of engaging in surveillance of the
employees' union activity. He claimed that the moving
from the old plant to the new was done largely at night
over a protracted period and that he frequently made trips
at night between the two plants for this reason. His
customary route on these trips took him past the
Machinist Hall. He also testified about an occasion in
March 1965, when he had driven past the UAW Hall with
his date one evening on the way to the theater which was
located about a block and a half from the hall. Because he
had difficulty finding a parking place he may have driven
around the block (and thus passed the hall) a couple of
times but that if so it had nothing to do with the Union.
He further testified as follows:
Now, if this is the night that someone says they saw me
in testimony here, someone else, I can't recall who, it
might have been one of the men on the witness stand,
but I am not positive about it, said to me they had seen
me the night before driving around downtown where
they were going to a meeting or something. But, prior
to that person telling me that the next morning, I did
not know that these people were going to be meeting in
a UAW Hall or any other hall.
In all of the foregoing I do not credit Stenberg's
testimony but accept the testimony offered by the General
Counsel' s witnesses . Thus I find contrary to his dental
that Stenberg was fully informed about the pending
meetings that were scheduled for April 1, 1964, and
March 8, 1965, before he drove by the respective union
hall on those occasions; that he told Huckabee a day after
the March 8 meeting that he could name every employee
that had attended that meeting; and that he admitted to
Carlisle having driven by the UAW Hall on the evening of
March 22. Accordingly, I find that Stenberg's driving by
the Machinists Hall on April 1 and 23, 1964, and by the
UAW Hall on the evenings of March 8 and March 22,
was for the purpose of observing who among the
employees were attending the Union meetings and that
this conduct amounted to surveillance of the employees'
union activities in violation of Section 8(a)(1) of the Act.
I also find that Stenberg' s comment to Straley on
March 8 that he had heard that someone had spoken to
Straley about the union was tantamount to interrogation
about the matter by Stenberg. I further find that
Stenberg's statement to Huckabee on March 9 that he
could name every employee who had attended the union
meeting the night before was meant to convey to the
employees that their union activities were under
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's surveillance, both matters being further
violations of Section 8(a)(1) of the Act.
In addition to the foregoing violations of Section
8(a)(1) of the Act, the General Counsel offered evidence
upon which they contend (and I agree and so find) that
Respondent also interfered with the rights of the
employees by restricting their movement about the plant
because of their union support.
Thus, late in May 1964, according to Delbert Hill's
credited testimony, he was in the parking lot in his car
during lunch time signing up some employees for the
Union. He glanced up and saw Eric Johnson looking in
the back window of the car. When Johnson saw him he
turned around and walked into the plant. Shortly after
this Johnson informed Hill that Respondent could not give
him a raise that he had requested because his "absentee
record was terible " Hill told Johnson that he had not
missed a day from the time he had started working for
Respondent. Johnson said, "That is what they told me"
and walked off red faced
In his work in small pump repair Hill originally had to
make many trips to other parts of the plant. In early
June, however, he was ordered to stay in his own
department and others were called upon to get parts for
him or to run his errands. On the few occasions after this
that he himself went to the shipping department or to the
stockroom he was summarily ordered back to his own
department - once by Svenson and another time by
Johnson.
The day after the election, according to the credited
and undenied testimony of Englin, Svenson and Stenberg
came to him together in the plant and informed him that
from then on he was to take orders from Eric Johnson
and was to do everything Johnson told him to do. Shortly
after this Johnson approached and told him that he
wanted Englin to stay very close to a particular assembly
bench (to which Johnson pointed) and not to "wander
off." Later, Svenson again came by and asked him if he
was doing Johnson's bidding. Englin said that he was and
Svenson told him to "make sure" that he did
Respondent's explanation of the curtailment of Hill's
movement was that there were too many people at that
time going independently to the stockroom and as a
matter of efficiency Hill among others was restricted in
this respect The only explanation regarding the Englin
matter was by Svenson who testified that Englin's
Supervisor Dergins was on a trip and Englin had been
told that in his absence Englin "would take orders from
Eric Johnson."
According to Sam Huckabee's undenied and credited
testimony, about August 9 or 10, 1965, Svenson came
over to his machine and asked him in effect if he knew
that he was not supposed to go to the coffee or coke
machines. Huckabee said that he "thought they were for
the public." Svenson replied, "as of now you stay away
from them," and walked off.
Discrimination
The Discharge of John Brown
John Brown was discharged by Respondent on March
9, 1965, after having worked for Respondent
approximately 12 years Svenson testified as follows about
the employment of Brown. Brown started as an assembler
in 1953. He worked for Eric Johnson until October 15,
1959. He was then selected as a leadman of a new
assembly unit. Five months later he was sent with Ray
Calson and Chief Inspector Frank Dergins to Detroit to
investigate the rejection of some three or four thousand
pumps When Brown returned from Detroit, Svenson
relieved him as leadman on the grounds "that he had no
ability to handle men and (Respondent) had lost several
men due to his inability "i' Svenson did not want to fire
him "then" and offered him a job on "model and
experimental work" where he would have no one to
supervise." Brown was also given a 10-cent raise at this
time.
Brown proved to be very difficult to handle in the
model shop. Because of complaints about his not being on
time and complaints about not doing a job properly from
the engineering department, Svenson had to reprimand
him from time to time and "showed him his absentee
record." In March 1964 Levine complained about working
with Brown and "getting blamed for the work Brown was
doing" and threatened to quit if he had to work with
Brown any longer. Svenson then transferred Brown to the
new plant on some machine tool hydraulic units. He
worked there until September 1964 when "it was
necessary to transfer him to a stockroom in order to keep
him from wandering all over the shop." Finally, after
reprimands by Burchett and Stenberg in January and
February 1965, he was discharged. The discharge was
discussed with Stenberg and it appeared that Brown
"refused to abide by the Company's rules. He refused to
come in on time. He bothered the daylights out of
(Respondent's) employees . . .
On cross-examination Svenson testified that Stenberg
discussed with him from time to time the difficulty that he
had in keeping Brown at his work and disclosed to
Svenson the reprimands he had written in connection with
Brown The first such discussion took place, according to
Svenson, in April or May 1964 Stenberg's complaint was
"that Brown was difficult to control. He would not be
governed by the company rules and regulations." This
matter was discussed three or four times by them in 1964.
Stenberg revealed "that he had talked to Brown about his
moving around the plant and not staying put at his
working place." While working in machine tool assembly
Brown had no occasion to go from one place to another in
the plant. When he started working in the stockroom, "he
was instructed to stay in the stockroom because there was
no reason for him to move from one place to another. The
material he handled was trucked ... " In Svenson's visits
to the plant he observed Brown moving about the plant
but did not speak to him about it but relied on Stenberg
to do so. This he did because he did not want to "step
over" his administrative or supervisory people He and
Stenberg discussed Brown a few days before he was
discharged. They "discussed the detrimental effect Brown
had on the other employees and that (Respondent) had
given him certain opportunities that he did not accept . .
in any serious and willing . . . manner." Stenberg told him
that he could not get Brown to listen to reason and accept
the rules and regulations of the Respondent. Svenson told
Stenberg that Respondent "should not have a man of his
caliber to jeopardize the welfare of the rest of the
employees."
On direct examination Stenberg testified as follows
regarding the discharge of Brown: Brown was discharged
"for his last infraction of a Company rule ..." -- namely
"This is an interesting commentary by Svenson regarding the
supervisory status of leadmen.
"Another interesting commentary by Svenson on the supervisory status
of lead men
JOHN S. BARNES CORP. 921
"being away from the spot where he was suppose to work
and engaging other employees in conversations during
working hours for an extended period of time." He had
called Brown into the office in February to discuss his
absenteeism. He told Brown at that time that "his
absenteeism was actually getting worse" since their last
talk about it" that in the 2 months of 1965 he had
already exceeded the total number of absences he had
incurred in the entire year of 1964. Brown's "excuses"
were "the weather, the road ..." Stenberg told him that
"he must improve and that this was his final reprimand,"
that he would not be called in again about company rules,
"that this is it."
On March 9, shortly before noon Stenberg had
Burchett bring Brown to the office. There Stenberg
showed Brown a copy of the rule against wandering in the
plant and asked him if he was not aware of it. Brown said
he was. Stenberg told Brown that he "had observed him
away from his place where he belonged for an extended
period of time" talking to maintenance men who were
working on a project with which Stenberg was "directly
involved" - that of setting up a new assembly line. When
asked by his counsel if there was any reason for Brown's
being at that place, Stenberg answered, "None that I
know of. None that I can think of." Nor, according to
Stenberg's further testimony, did Brown offer any
explanation.
Stenberg told Brown "that this was the final straw";
that he had discussed the matter with Svenson and that
the decision was that they "would terminate him as of
right then." As to when Stenberg had observed Brown's
conduct, Stenberg testified that he believed that it was the
afternoon of the day before his discharge or "possibly the
day before that, (he was) not positive exactly." Stenberg
testified that he was unaware of Brown's participation in
the March 8 meeting at the UAW Hall and that he was
not aware that Brown was active on the Union's behalf
until the beginning of the hearing herein.
From Stenberg's further testimony on
cross-examination, it appears that the maintenance men to
whom Brown was seen talking were Donald Kotkamp and
James Carlisle. However, Stenberg made no attempt to
find out from them what business if any Brown was
conducting with them when he saw Brown talking to
them Nor, indeed, did Stenberg at any time take the
matter up with Brown's supervisor, Burchett. It further
appears that Stenberg had a conversation with Svenson
several months prior to Brown's discharge concerning "his
repeated disregard for Company rules and regulations,
coming to work late." At that time, Stenberg told
Svenson that Brown's "excuse was he over slept. He
would leave in the afternoons and his excuse was that he
had business to attend to. He would go out at lunch and
he would come back late." According to Stenberg his
conversation with Svenson regarding Brown's termination
occurred either on the morning of the discharge or the
afternoon before Stenberg was not positive which. In
this conversation Stenberg told Svenson that Brown was
again wandering around the plant in disregard of his
previous final warning and that Stenberg wanted to
discharge him. Svenson told Stenberg that he had "put up
with him about as long as anybody could" and that if he
wanted to discharge Brown it was "okay" with Svenson.
Stenberg was "almost positive" that he had only one
conversation with Svenson about Brown 's discharge and
"Stenberg did not say when their last talk was supposed to have taken
place.
that it was carried on over the telephone.
The only other person who testified regarding Brown's
employment on behalf of Respondent was Knute Levine.20
He testified that he had worked with Brown 4 years and
that "after a certain time" his workmanship deteriorated
and he did not turn out the work that Levine expected of
him. As time went on it got worse so he asked Svenson to
be relieved of Brown or for a transfer for himself.
A memorandum in Brown's personnel file dated March
20, 1964, indicates that at that time he was told2' he had
been tardy 25 times, absent 5 times with 14 1/2 hours off
presumably in 1961; in 1962 he was tardy 26 times and
absent 9 times with no hours off; in 1963 he was tardy 20
times and absent 21 times with 35 3/4 hours off, in 1964
to the date of the reprimand he had been tardy 6 times,
absent 0 and had taken 3 hours off.
Another memorandum presumably by Stenberg dated
December 13, 1964, stated:
Today, John Brown was reprimanded for his chronic
tardiness. He was told his record of repeated tardiness
and leaving the plant early was unsatisfactory. Unless
he could improve, he probably would be terminated.
Another reprimand purportedly by his foreman, Carl
Burchett was dated January 25, 1965:
Carl Burchett informed John Brown because of his
absence and tardiness, we will again point out to him
his working hours was the same as all other employees,
from 7 a.m. to 5 p.m., Monday through Friday, and 7
a.m. to 12 noon on Saturday. And he would be
expected to be here on time and working at his place of
work.
Brown was told he must not leave early or leave his
place of work, or to work any additional hours without
the expressed permission and order of his supervisor.
Brown was told his failure to comply with the
company rules, regulations and policy would lead to his
discharge.
The next reprimand was dated February 25, 1965:
Today John Brown was again reprimanded for his
failure to comply with previous reprimands concerning
his tardiness. It was explained to him his record shows
repeated lateness. In fact, in 1964, he was late a total of
17 days. And already, during the first two months of
1965, he had been tardy a total of 10 days.
Brown was told instead of improving his record,
when being reprimanded last February, he was getting
worse. He was also told his place of work was the
stockroom and he was to refrain from leaving the
stockroom and going to any other part of the plant and
from engaging employees, et Cetera.
He was told this would be his last warning and the
next time we had to call him to the office, about it, he
would be terminated.
According to Brown's testimony during his first 8 years
with Respondent he received 4 raises. He was then
promoted to foreman in charge of some 10 people making
power steering pumps for Massey-Ferguson. He received a
20-cent raise at this time. He was in this job
approximately 6 months when Svenson informed him that
he could not handle men and that he was being
transferred to the experimental work under Knute Levine.
At this time he was given a 10-cent increase. After
"Although Brown 's supervisor Burchett was called as a witness by
Respondent no questions were asked him regarding Brown whatsoever.
"There is no indication by whom this reprimand was made This
memorandum together with the others herein referred to were read into the
record by the General Counsel.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately a year and a half with Levine he was
transferred to the machine-tool-hydraulic department
under the supervision of Gillie Emerson Levine had
complained about Brown's reporting late a couple of times
and had said that Brown made him "nervous". He
apparently only worked a short time for Emerson when he
was transferred to the stockroom (apparently with no
reduction in wages) where he worked under Carl
Burchette. This transfer was made about mid-1964 and he
stayed on this job until his discharge about 9 months
later.
Brown became active in the Machinists campaign and
secured 10 to 15 authorization cards from his fellow
employees for that Union The part Brown played in
promoting the union meeting at the UAW Hall on March
8 has been noted. Prior to this time, according to Brown's
further undenied and credited testimony, unfair labor
practice charges had been filed by the Union in connection
with the burning of Brown's automobile while parked by
his daughter in front of the home of an employee who was
crossing a picket line in a labor dispute not involving
Respondent. After it had happened Svenson had
approached Brown at his work (on July 9, 1964), and told
him that he was sorry that Brown's car had been burned
but added that this was "what happens when you mess
around with those hoodlums in the Union."
On July 23, Brown was called into the office by
Stenberg who said that Svenson wanted to talk to him.
Because it was a very hot day the three of them went back
in the IBM machine part where it was air-conditioned
There, Svenson accused Brown of filing an unfair labor
practice charge against Respondent Brown denied the
accusation Svenson said he had the charge back on his
desk. Brown reiterated that he had not filed it and after
some more conversation offered to give a statement to
that effect. With that, Brown was dismissed. Later,
Stenberg told Brown that he would write a letter for
Brown to send to the labor board. A few days later he got
the letter from Stenberg which read as follows 22
TO WHOM IT MAY CONCERN
I, John L Brown, of 511 West Chester, Rockford,
Ill., do hereby want all persons to know that I have had
no connection with the International Association of
Machinists, AFL-CIO, Lodge 1553 of Rockford, Ill
I have not asked nor do I want an unfair labor
practice charge to be filed in my behalf against the
John S Barnes Corporation, Rockford, Illinois
I, also, want the IAM Lodge 1553 to retract any
such papers that may have been filed and I do not want
the IAM Lodge 1553 to use my name for any reason
whatsoever.
John L Brown
Brown never sent the letter because it encompassed a
much broader statement than he had inter.,;d23 and
"would have been a lie" because at that time he already
belonged to the union. Three or 4 days after Brown
received the letter from Stenberg he gave a statement to a
board agent about the car matter. The following day
Brown took his copy of the statement and showed it to
Stenberg. The latter asked Brown where he made the
statement and Brown told him that it was at the Union
Hall. Stenberg then asked Brown "how did they know
how to get ahold of him " Brown answered that he had
signed a union card and that he had been called from the
Union Hall Stenberg asked for a copy of Brown's
"In his testimony Stenberg denied preparing the letter and denied that
he had ever seen it prior to the hearing I credit Brown
statement but Brown refused to give it to him
According to Brown's further credited testimony,
shortly after the election on August 12, 1964, the Union
distributed a handbill in the form of a cartoon depicting
Svenson presumably in some sort of an uncomplementary
light The day after the handbill had been passed out
Svenson came to Brown and thanked him for giving him
"the valentine . . last night."
As indicated, Brown was discharged on Tuesday,
March 9, the day after the union meeting that he arranged
was held at the UAW Hall According to Brown's
testimony, at about 11.30 that morning Burchett called
and told him to come up to Stenberg's office There, in
the presence of Burchett Stenberg told Brown that he had
seen him talking on Thursday, that he had taken it up
"with the front office" and that it had been decided to
discharge him At this time Stenberg showed him a copy
of a company rule against wandering in the plant signed
by Svenson.34 When Burchett took him down to check out
his tool box he told Brown that the first he had learned
about the matter was 5 minutes before it happened
According to the undenied and credited testimony of
employee James Carlisle, shortly after Brown's discharge
Carlisle went to Stenberg's office and asked him why
Brown had been discharged. Stenberg told Carlisle that
"Brown had been fired for talking 20 minutes the previous
week on a Thursday afternoon " Carlisle commented that
he "thought it was kind of silly to fire a man on Tuesday
for something he did last Thursday" and asked Stenberg
"if he was sure he hadn't fired him for union activities."
Stenberg "more or less indicated" that it was none of
Carlisle's business but added that "this was a good way as
any to get rid of Brown."
According to Brown's testimony, his work in the
stockroom required him to deliver parts to the shipping
room twice a day Besides this, Brown "also went out and
rigged castings for the fellows on the line, . pressed
bronze bushings . . and if they were short of a part, (he)
had to go out either to the grinder sometimes and to the
inspection department or to the mills and different places
and pick this part up and bring it to the assembly." He
admittedly talked briefly with his fellow employees on
these occasions. He also admitted that he did not get his
foreman's permission each time he left his department as
provided for in the rule because his foreman was seldom
available. According to Brown, he was never criticized for
his failure to comply with this rule until he was
discharged. He specifically denied receiving a reprimand
from Burchett on January 25 and a reprimand on
February 25 for tardiness and for being away from the
stockroom and talking in the shop.
Regarding the rule against wandering in the plant,
several of the General Counsel's witnesses testified that it
was not enforced or at best was very loosely enforced
Clyde Edwards, Claude Livingston, Jr , Donald
Kottkamp, and James J Carlisle testified to this effect.
Carlisle testified that his work as a maintenance
electrician took him all over the plant and that in the
course of his work he had numerous conversations with
"His intention was simply to say that he had not filed the charge in
question and that he "would like verification from the labor board" that he
had not filed it.
"According to Brown , who was corroborated by some of the General
Counsels ' other witnesses , the rule was first posted in the plant in April of
1964 and remained on the company ' s bulletin boards only a short time,
having been taken down before the election . Brown didn't see it again until
it was shown to him on the occasion of his discharge According to other
witnesses it was again posted some weeks after Brown was discharged
JOHN S. BARNES CORP.
employees. These conversations were about "religion,
politics, various things" including the Union. He was
opposed to the Union and always spoke against it. He
spent up to a half hour on some of these discussions which
some times included supervisors.S6 He had several such
discussions on politics and the Union with Brown from
whom he was on opposite sides on both subjects. Neither
he nor the employees with whom he talked (with the
obvious exception of Brown) were ever criticised or
reprimanded for such conduct.
Respondent introduced in evidence excerpts from an
employee handbook put out by W. F. and John Barnes
and Associated Companies (with which Respondent was
once connected) which dated back 20 years or more and
listed various plant rules. This was introduced as showing
a background for Respondent's published rules. To
establish that it had published rules, Respondent
introduced in evidence copies of rules dated November 22,
1960, December 7, 1962, June 11, 1963, October 8, 1964,
and November 19, 1965, pertaining to absenteeism. The
earliest exhibit involving a prohibition against leaving
one's work station however was dated April 1, 1964. This
rule provided as follows:
ATTENTION ALL EMPLOYEES
You are again reminded that that is the Company's
Policy during working hours you are to remain at your
place of work. You must not leave your place of work
or department except in the line of duty or with the
permission of your foreman
If you leave your place of work or department, you
are expected to accomplish your mission promptly and
not to visit, distract, or interfere with other workers.
Your cooperation is respectfully requested.
JOHN S. BARNES
CORPORATION
/s/ Ernest J. Svenson
President
Respondent also introduced in evidence a number of
written reprimands to various employees to show that it
did indeed enforce its rules. Of the 10 reprimands received
in evidence all are dated after March 9, 1965, except two
and only one of these two (which was dated April 17,
1964), pertained to being away from one's work station
talking to other employees.
Conclusions as to Brown's discharge
Notwithstanding that a superficial perusal of the record
might lend some support to Respondent's contention that
Brown was discharged for cause without any intervening
antiunion motivation, I am convinced and find that
Brown's union activities played a significant part in his
discharge and that it was discriminatory within the
meaning of Section 8(a)(3) of the Act.
In reaching this conclusion I am first impressed with
the patently false claim of Stenberg that he was unaware
of any union activity by Brown until the start of the
instant hearing.26 Next is the abruptness of the discharge
coming as it did the morning after the union meeting
(which merited Stenberg's surveillance and apparent
surprise)!? and without any investigation on Stenberg's
part whatsoever regarding the purported conduct that gave
rise to it.
"Corrobotation on this is shown in the testimony of Roy Schell, Infra
"In this connection to be noted among other things are: (1) Svenson's
923
It would appear that while Brown may have had some
shortcomings as an employee, he was highly enough
regarded by Respondent to be retained and rewarded in
spite of any deficiencies he may have had - up to about
the time the Union arrived on the scene. Then, after
Brown had joined the Union, his shortcomings (described
in general terms by Svenson as being "difficult to control"
and a refusal "to be governed by the company rules and
regulations") give rise to several conversations about him
between Svenson and Plant Manager Stenberg. According
to their testimony there followed several reprimands to
Brown regarding his failure to comply with company
rules. These are all evidenced by representation made in
memoranda to the files by Stenberg stating that such
reprimands have been communicated to Brown. In his
testimony Brown denied receiving any of these
reprimands Whether or not he did28 is immaterial in my
view of the evidence since I would find that even if he had
been reprimanded as claimed by Respondent and informed
that his next violation of a company rule would result in
his discharge, I would still find, as I do, that his discharge
was in fact motivated by his union activity and that the
triggering incident advanced by Respondent as its cause is
without substance -- and further that to the extent it
might be deemed to have any substance it was
nevertheless relied upon as pure pretext to mask
Respondent's real antiunion motive.
Thus, I am convinced and find that to the extent that
there was a rule against leaving one's work place and
talking to other employees outside the scope of one's
duties it was loosely and rarely enforced.29 I credit the
testimony to this effect by the General Counsel's
witnesses, which was not countered by any evidence
offered by the Respondent except the general statement to
the contrary by Stenberg and Svenson. Indeed, what little
corroborative type evidence Respondent offered in this
connection tends to support my conclusion. Thus, of the
several written reprimands offered in evidence regarding
the breach of this rule only one was dated before his
discharge and that was almost a year earlier. By the
foregoing I do not mean to say that I do not believe that
Respondent ever had in effect the rule in question. I do
not doubt that it did. But, as often happens with rules, I
believe as the evidence shows that it was more honored in
its breach than in its observance. The event of Brown's
discharge apparently gave rise to a tightening of the rule.
But punishment for the breach of an unenforced rule in
the circumstances here30 is as specious a defense in my
accusation in July 1964 that Brown had filed unfair labor practice charges
(2) Brown 's information to Stenberg , while discussing his having given a
statement to the Board, that he had signed a union card (3) Strickland's
information to Stenberg on March 8 regarding Brown 's attempt to get the
employees to go to the UAW meeting that night (4) Stenberg's
surveillance of that meeting.
"That the UAW meeting of March 8 must have come as somewhat of a
shock to Stenberg would appear from his comment to Roskopp a few days
after the meeting (as will appear in more detail below) that things had
appeared to be quieting down until the March 8 meeting took place
"Respondent's evidence here rests solely on the uncorroborated word of
Stenberg whose doubtful credibility has already been discussed . The one
opportunity to offer corroborating testimony regarding an alleged
reprimand to Brown by his Supervisor Burchett was not taken advantage
of by Respondent when Burchett was not interrogated about the matter.
"An example of the lack of seriousness with which Respondent viewed
its rule appears in the undenied and credited testimony of Roy Schell.
According to him about three weeks before the election Stenberg engaged
him in a 45 minute discussion during working time wherein Stenberg gave
Schell the benefit of his view on unions
"The disparity of the treatment of Carlisle, an antiunion employee, is an
example
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion as if there had been no rule involved at all
Moreover , I also credit the General Counsel ' s evidence
which shows that the conduct complained about by
Respondent occurred 5 days before the discharge took
place As observed by Carlisle, it seems "kind of silly to
fire a man on Tuesday for something he did last
Thursday " That is if it is not learned in the meantime
that that man is trying to renew the employees ' presumed
waning interest in a union Then , perhaps it is "as good a
way as any to get rid of ( him)" or at least to try.
The Increase in the Hours of LaSala and Edwards
The part played by Sam LaSala and Clyde Edwards
together with Roskopp and Brown in arranging the UAW
meeting on March 8, their attendance at that meeting, the
information Stenberg had been supplied about it by
Strickland and Stenberg's surveillance of the meeting have
been noted. From these circumstances plus the various
confrontations between the two employees and Svenson as
shown I find that Respondent on March 9 was fully aware
of their union support and activities and was not
particularly happy about it
For a period of 4 or 5 years LaSala and Edwards had
been working together from 7 a.m. to 4:30 p.m in the
assembly department on "special order and breakdown
jobs" under the supervision of Eric Johnson During this
entire period the regular shift hours for the rest of the
plant were from 7 a m. to 5 p.m. Apparently others in the
plant had also been working the shorter shift. At some
undisclosed date prior to March 9, Johnson had told
LaSala and Edwards that the other employees were going
to start working until 5 p.m and that they could do so
too if they "wanted to." The two elected not to do so and
Johnson said "that it was alright." This is not denied by
Johnson in his testimony
On the same day that Brown was discharged, March 9,
1965 (which was also the day that Stenberg had called
employee Sam Huckabee into his office and told him that
he could name to Huckabee every employee who had
attended the union meeting the night before), Stenberg
called LaSala and Edwards into his office. There,
according to the testimony of LaSala (corroborated
substantially by that of Edwards) Stenberg accused the
two of taking timecards of other employees out of the
rack and looking at them " Stenberg said that these cards
were not to be touched by anyone except the individuals
whose names they bore. Stenberg then pointed out that
Respondent's hours were from 7 a.m to 5 p.m. and that
from that date on the two employees would be working
those hours LaSala told Stenberg that they had been
working until 4 30 for the past 4 or 5 years. Edwards
asked if they would be discharged if they refused to work
the extra half hour Stenberg said that they would be.
Edwards asked upon whose authority the order came and
Stenberg replied that it was on authority of E. J. Svenson,
President of John S. Barnes Then Edwards said that
having covered the pleasant subjects he wanted to talk
about something else and asked for a raise. According to
LaSala Stenberg replied that at that time "he was trying
to get the newer help and the younger employees a raise
first." Edward's version was that Stenberg replied "that
he would rather go down on the floor and try to get a
raise for any of the young fellows down there than try to
get a raise for (him) ""
"According to Edwards' testimony he said to Stenberg , " I challenge that
In his testimony Stenberg admitted that he had called
the two employees into his office and had "informed them
that they were to work until 5 p.m." According to
Stenberg he had just previous to this learned on the basis
of a survey he had made that some employees were not
working the regular shift. He thought that it was wrong
that everyone except a few "special people" had to work
until 5 p m So, he "simply informed these people that
due to increased business" they had to work the "standard
work week " He then testified that his decision and order
was in fact based upon the requirements of increased
business. According to the testimony of both LaSala and
Edwards, at this time the volume of work in their
department was on the decline
As in the case of Brown and essentially for the same
reasons I believe that the facts here justify the finding that
the increase in the hours of LaSala and Edwards was
based essentially on antiunion considerations and I so
find
The Discharge of Roskopp
Roskopp's part with Brown, Edwards and LaSala in
promoting and attending the meeting at the UAW Hall on
March 8 has been noted. He went to the meeting with
Edwards and LaSala the three riding to it in Roskopp's
car. According to Roskopp's testimony, on March 12,
Svenson came to his work station and asked it he was
keeping "his nose clean." Roskopp said, "yes " Svenson
"turned around and turned around again" and looked at
Roskopp's and said "that is not what I hear."
The following day Roskopp went to see Stenberg
wanting to know what Stenberg had heard about
Svenson's comment Stenberg said he could not enlighten
Roskopp They thereupon upon engaged in a conversation
Stenberg said something about either he or Roskopp
"should not do this" but that Roskopp was in the office
on his own so Stenberg asked him what the employees
wanted Roskopp told him "they wanted better wages and
better insurance." Stenberg said that management was
working on these things and that "as soon as things
quieted down about the union they would see what they
could do to. . ." Then he went on to say, "it seems like
things have been quieting down and now it is picking up
again because we met at the UAW Hall." Stenberg
commented that he did not know if Roskopp had been at
the UAW Hall. Roskopp said that he had been there.
Stenberg said that everytime he went downstairs
(presumably into the plant) he felt as if the people were
stabbing him in the back or were engaging in a
slow-down Thereafter for a few weeks on occasion
Stenberg would greet Roskopp with such comments as
"good morning, you fat slob" or "how are you doing you
old bastard.""
On May 3, according to Roskopp's further testimony,
he told his supervisor, Howard Olsen, that he had 2 weeks
vacation coming and wanted to know if he could "take a
couple of days off here and there" and take a full week
statement because it isn't true ," and asked Stenberg who had given him
such information
"On the basis of this evidence the General Counsel contend that
Edwards was discriminatorily refused a wage increase . I reject this
contention
"This testimony was corroborated by employee Larry Bain who claimed
that he also hear Stenberg address Roskopp or refer to him as "lard ass "
On cross-examination Roskopp testified that he did not know on such
occasion "whether it was a friendly greeting or not," but claimed that
Stenberg spoke with "a rough voice "
JOHN S. BARNES CORP. 925
off in July. Olsen said he would like to have Roskopp do
it that way but told him to get Eric Johnson's permission.
Roskopp then spoke to Johnson telling him that he would
like to have the 7th, 8th, and 9th of May off with the
understanding that he could have a few days more at the
end of May. Johnson said that it "would be tine."
When Roskopp returned to work on May 10 according
to his further testimony Stenberg asked him how his
vacation had been and Roskopp answered that it had been
fine. Either that same day or the next Roskopp told
Stenberg that he would like to have the end of May off
and wanted to know if he would lose his holiday pay
because he would not be there the day before but would
be there the day alter the holiday. Stenberg told Roskopp
to get Johnson's peimission and have it turned into the
payroll department as part of his vacation. This Roskopp
did and Johnson said "it would be alright with him, he
would turn it in."
On May 7 or 8, according to Roskopp's testimony on
the basis of a leading question posed to him by counsel,
he had a conversation with Svenson at his work station.14
Svenson again wanted to know if Roskopp was keeping
his nose clean. Roskopp replied that he didn't know.
Svenson said, "well, you better. You have a wife and baby
to feed.";`
Later in the same week that he had had the
conversation with Svenson (the week of May 17) Roskopp
called Machinist business agent Stubblefield for the
purpose of setting up a union meeting. This meeting took
place around May 20 or 22. About 15 or 20 employees
attended among whom were Roskopp, Edwards, LaSala
and Huckabee. Some authorization cards were signed at
the meeting and Roskopp and a couple of others took
blank cards with them. Roskopp passed out about a half
dozen of these cards in the plant the following Monday,
May 24
Late that afternoon according to Roskopp's further
testimony Eric Johnson came to Roskopp and asked him
it he was going to be gone that weekend. Roskopp said
"yes," that he was going to be gone Thursday through
Monday and would be back to work on Tuesday
Stenberg, standing nearby, overheard Roskopp's comment
and said harshly, "No you are not." Roskopp said, "The
hell I am not. You told me I could." Stenberg denied this.
Roskopp contradicted him and reminded him of their
previous conversation about the holiday pay Stenberg
then remembered but said he had told Roskopp to get
Johnson's permission. At this point Johnson spoke up that
he had given his permission. Stenberg said, "I am
changing it, I am getting tired of you . .16 taking off part
of the middle of the week and calling it part of your
vacation." Stenberg added that if Roskopp did not come
in on Thursday he could "forget to come in Tuesday"
that he "would be fired " Roskopp said, "well it I am
fired I will see you in front of the National Labor
Relations Board." Roskopp also testified, "I cursed at
him and he cursed at me."17 Then Stenberg turned and
walked away. When asked who had cursed first Roskopp
replied, "I don't remember," but testified that they had
both used profanity
When Roskopp reported for work the next day he was
asked to see Stenberg in the latter's office. There Roskopp
asked Stenberg if he "was fired." Stenberg said no but
that he was going to send Roskopp home for the day for
discipline that he would not stand for Roskopp's
cursing him or threatening him the way (he) did "38 As he
was leaving, Stenberg called him back and asked him
what he was going to do about his vacation. Roskopp said
that Stenberg had told him that he could not take off and
so he assumed he would have to work. Stenberg told
Roskopp to report back to work on Wednesday
When Roskopp reported on Wednesday there was a
note in the card rack that he was to report to Stenberg. In
the office Roskopp asked if he was fired and Stenberg
said, "yes." Roskopp asked Stenberg on what grounds - -
whether it was his work Stenberg said that it was not, his
work had been good or he would not have been there as
long as he had been and stated that the reason was
misconduct Roskopp asked what he meant by misconduct
and Stenberg said, "threatening and cursing "
Several of the General Counsel's witnesses testified that
both Svenson and Stenberg on occasion used profanity in
their conversations with employees According to Clyde
Edwards' testimony he heard both Svenson and Stenberg
on numerous occasions using words he "could describe .
as four letter words meaning sex, also .. everything that
could be imagined .." Edwards also testified that with
"every remark" by Eric Johnson "there is profanity
included "
Regarding Roskopp's discharge Stenberg testified as
follows Shortly before 5 p m. on May 24, Roskopp
walked up and "butted into" a conversation that
Stenberg was having with Eric Johnson. Roskopp said, "I
am starting my vacation Thursday " Stenberg spoke up,
"Eric we don't start vacations in the middle of the week.
You know our vacation policy." Then he turned to
Roskopp and said, "you know this is the end of the
month, we need every person we can get in here to work
on the material to get it out, we have a lot to go and there
is a holiday coming up Wait until next week and take
your vacation starting Monday " Roskopp, becoming
"rather loud, said he would not wait, that he had already
made plans and he was going to go Thursday " At this
point there was "some pretty vulgar and vile language"
used by Roskopp Johnson walked away "and a lot of
other employees in the same area were milling around,
getting ready to go home." Stenberg said, "We will
discuss this further in the morning" and also walked
away.
According to Stenberg's further testimony, when he got
to his office he thought he ought to call Svenson about the
incident because he did not think that Roskopp's "wild
and vulgar language . was quite right." He then called
Svenson at the latter's office but Svenson had already left
for home so he waited a while and reached Svenson at his
home. In the ensuing conversation it was agreed that they
"it was counsel who suggested the date of May 7 or 8 in his question
Obviously Roskopp could not have had a conversation with Svenson at the
plant on that date because he had been on leave at that time Apparently
counsel misspoke because in a later question about other events which took
place later in the same week that he had the above conversation with
Svenson counsel identified that week as being the week of May 17
"The Roskopp' s had had a baby a few months before this In an
affidavit that Roskopp gave about the matter he said that Svenson had
said on this occasion "remember you will have to work twice as hard now,
you have a wife and baby to feed "
"Instead of using the exact word used by Stenberg here Roskopp had
described it with the words "blankety blank" and testified that the word in
question involved a four letter sex word
"White admitting that he had used profanity Roskopp claimed he could
not remember what he had said
"On cross-examination Roskopp testified that at this time Stenberg
explained to him that the only reason that he could not have the time off
he wanted was because it was the end of the month, a busy time Roskopp
asked Stenberg why he hadn ' t made the explanation to him the night
before
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would suspend Roskopp "at least for the next day" and
discuss the matter more fully then. Stenberg went back to
the plant that evening and left a note for Eric Johnson
that Roskopp was not to punch in the next day, "that
(Stenberg) would talk to him."
The next day Stenberg informed Roskopp that he was
being suspended for I day pending a final determination
regarding the matter. That noon Stenberg lunched with
Svenson at the Faust Hotel as was his custom. There they
"discussed Peter Roskopp pretty much in detail." After
reviewing the incident and the "vile and vulgar language
used by Roskopp" Svenson was satisfied that Roskopp
should be terminated" for insubordination or
misconduct." Accordingly, Svenson suggested that
Stenberg "write up the details of what had taken place"
between him and Roskopp and also the results of this
meeting with Svenson about it. Stenberg said he would
not do this in the plant but would do it at home because
he did not want his secretary "writing this language."
That night at home Stenberg wrote out the memorandum.
The memorandum revealed, among other things, that
1. At the time that Roskopp "butted in" to Stenberg's
conversation with Johnson, Stenberg had just "found
that all available manpower . . including added
overtime" was needed to meet the month's shipping
schedule.
2 Three times, after initially telling Roskopp that he
could not take off because of the press of business,
Stenberg repeated his explanation to Roskopp (in the
face of the latter's growing anger and abuse" ) and in
substance pleaded with Roskopp each time to wait until
the end of the week to take leave.
3. That at this point Roskopp loudly and vulgarly said,
"You mother . . ." you will be in court over this. I will
take this to the NLRB, you dumb son of a bitch.
4. Stenberg walked away from Roskopp at this point in
order "to maintain dignity and character and good
morale in connection with other Barnes employees."
5. A complete investigation of the matter was made
including Roskopp's conduct during his employment at
Barnes.
On the following day Stenberg discharged Roskopp
telling him that he did not like to discharge people but
that he "really had no recourse because of his action the
day before."
In his testimony Stenberg admitted that he may use "a
curse word now and then" but claimed that he did not
"make a habit of going around cursing or using dirty
language" in his speech. He specifically denied that he
ever used a four letter sex word if it was the one he
thought his interrogator had reference to. When asked if
he had used profanity in the incident with Roskopp he
testified, "Well, to the best of my knowledge, I don't
really think that I used any profanity in the
conversation." Elsewhere in his testimony he referred to
the incident as "our argument."
I credit Roskopp's version of this incident. In addition
to Stenberg's thoroughly demonstrated lack of credibility
generally, the repetitive moderation with which he would
have it believed that he met Roskopp's angry assertions
would be most unrealistic no matter how even tempered a
"According to the statement Roskopp has angrily said , "Do you people
think you are God and can tell people what to do 'i Why you are worse
than Svenson."
"This word also involved a four letter sex word.
supervisor might be. I find that Roskopp had cleared and
arranged his vacation matter through Stenberg and
Johnson as he had been told to do. I further find that on
May 24, Stenberg had preemptorily countermanded these
arrangements and in doing so had referred to Roskopp
with an expression involving a well known (certainly in
factory circles) four letter sex word. There is no doubt in
my mind and I also find that Roskopp returned the
compliment to Stenberg with interest, as it were, using the
language set forth in Stenberg's memorandum about the
matter.
The General Counsel would attribute much significance
in the resolution of this matter to certain conflicts between
Svenson's and Stenberg's testimony as to the details and
chronology in its handling up to the time that Roskopp
was discharged. Aside from the bearing such conflicts
have on the general veracity of the two company
witnesses, I do not believe that there is any importance in
them as regards Roskopp's discharge.
I have found that Roskopp used the language attributed
to him. Respondent maintains that this was what he was
discharged for. The General Counsel contends that the
reason advanced by Respondent was a pretext utilized to
cover Respondent's antiunion motive. I agree.
There is no question in my mind, and I find, that the
use of profanity including words involving sex was
common place among Respondent's employees including
Stenberg. Having initiated the use of such language in his
harsh repudiation of his prior authorization to Roskopp,
he can hardly claim an insult to his sensibilities or his
dignity when Roskopp returned it to him in kind. And in
this light, even less persuasive is his stated concern for the
"dignity and character and good morale in connection
with Barnes employees."
Considering the record as a whole, including Roskopp's
admission to Stenberg that he had attended the March 8
UAW meeting and Svenson's comment shortly thereafter
implying that Roskopp was not keeping his "nose clean,"
his attendance at the Machinists meeting about May 22,
his activity on behalf of the Union shortly before his
discharge, the intense opposition of Respondent to the
Union and the wholesale unfair labor practices committed
by Respondent in its callous attempt to defeat the rights
and lawful purposes of its employees, I am convinced and
find that Roskopp's discharge, like that of Brown and like
the discrimination against LaSala and Edwards, was
motivated by Roskopp's support of the Union and that
the reason advanced by Respondent for the discharge was
a pretext to hide this real motive.
The Refusal to Bargain
As indicated, the Union's organizing campaign began in
February, 1964. On May 19, 1964, the Union wrote
Respondent claiming to represent a "majority of the
factory employees" and requesting recognition. On May
26, 1964, the Union filed a petition for an election in a
unit described as
All production and maintenance employees of the
Employer's plant located at 2241 20th Street, Rockford,
Illinois, excluding office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
In the Regional Director's Decision and Direction of
Election dated June 29, 1964, it is indicated that the unit
was stipulated by the parties to be
JOHN S. BARNES CORP.
All production and maintenance employees at
Employer's plant located at Odin Industrial Plaza,
Rockford, Illinois, including plant clerical employees,
leadmen, tool crib attendants, time keepers, working
foreman, set-up men, shipping and receiving clerks,
inside truckers, outside truckers, stockroom attendants,
janitors and service men; excluding all office clerical
employees, professional employees, guards and all
supervisors as defined in the Act."
The Union lost the election on August 12, 1964, and
filed timely objections which were combined with unfair
labor practice charges and set for hearing on December
17, 1964. At that time the General Counsel withdrew the
refusal to bargain allegations of the complaint having
determined that the Union did not represent a majority at
the time recognition had been demanded. Thereupon, the
remaining unfair labor practice charges were settled
without going to hearing. Notwithstanding the settlement,
the Union continued its organizing efforts."
On June 1, 1965, the Union wrote Respondent advising
that "a majority of the production and maintenance
employees of the John S. Barnes Corporation wish to be
represented by Lodge 1553, International Association of
Machinists, for the purpose of collective bargaining," and
sought the commencement of negotiations for a
collective-bargaining agreement. The letter was admitted
to have been received on June 2. On June 3 the Company
wrote the Union in part as follows:
We know and believe that you do not represent a
majority of the production and maintenance employees
of this Company and therefore any negotiations would
be highly improper.
For the purpose of determining the number of people
who were in the bargaining unit as of June 2, 1965 (the
date Respondent received the Union's demand for
recognition), the General Counsel offered a copy of
Respondent's IBM record of its payroll ending June 5,
1965. This record shows for our purposes the names and
clock numbers of all hourly paid employees who earned
any wages during the payroll period ending June 5. Two
hundred and forty-three people are listed on this exhibit.
Of these it was stipulated that six were office employees,
not in the unit, and that ten had been hired after June 2"
and of course would not enter into calculations pertaining
to majority as of June 2. Eliminating this 16 leaves a base
figure of 227. There is a conflict however between the
General Counsel and Respondent as to the use of this
figure as a base. Besides a few individual differences two
main categories are at issue. The General Counsel
contends (contrary to Respondent) that some 23 or 24
employees whose names appear on the June 5 payroll
record are supervisors within the meaning of the Act and
should be deleted from the base. He also contends that 10
others on the payroll were student employees whose
interests and sporadic continuity of employment precluded
their inclusion in the unit . Respondent not only opposes
this contention, but in addition to including them in the
unit would also include 13 additional students who, while
"This is the description of the unit contained in the current complaint,
which is admitted by Respondent to be an appropriate unit. As will be
seen , certain of the above-named categories are found herein to be
supervisors within the meaning of the Act and are thus excluded from the
unit that I find to be appropriate and which is involved in the
recommended order herein.
"According to employee Strickland ' s undenied and credited testimony,
authorization cards were being given out in the plant from January until
another demand for recognition was made on June I, 1965.
927
not having worked during the payroll period in question, it
contends were carried on its records as permanent
employees at that time.
In the disposition of this matter let us turn first to the
question
The Student Employees
For some years Respondent has engaged in a policy
and practice of hiring students°° and letting them work at
all times when in a vacation or recess status from their
studies such as summer vacations, Easter and Christmas
recesses and between semesters. The students are given
permanent clock numbers at the time of hire, enjoy all the
employee benefits when earned 41 and are carried on the
Company's records as permanent employees until they
voluntarily terminate their employment relationship.
Respondent introduced into evidence a listing of the
names, clock numbers and dates of employment and
school attendance of 26-student employees some of whom
had been with Respondent as long as 2 or 3 years. Ten of
these were working on June 2, 1965, and appear on the
IBM payroll for that crucial date. Respondent contends
that all of this 26 except 3 who were hired after June 2
should be included in the unit and figure in the majority
computation of June 2.
The General Counsel opposes this contention and would
eliminate even the students who were working on June 2
on the grounds that there has been no showing of a
reasonable expectancy of permanent employment by these
employees and on the basis of "the intermittent, irregular
and indefinite nature of their employment." In this
connection the General Counsel stresses the fact that the
Respondent could show no college graduates permanently
employed in the bargaining unit. 46 Conversely, Respondent
thinks it significant that at least three of its former
students are currently employed by it in executive or
professional capacities. Indeed, as stated by Svenson on
the witness stand regarding Respondent's hiring of
students "... that is the way we train people for executive
jobs."
In a number of cases the Board has excluded student
employees from bargaining units on the ground that they
had no reasonable expectancy of eventual permanent
employment and because of the intermittent, irregular and
"Actually the stipulation involved only nine such employees but the
evidence shows that there was one other, L. D. Cline, who applied on June
3 and started working on June 4
"In its brief Respondent (apparently to accentuate its point that "these
'school-boys' are not hired as summer vacation replacements, or as
temporary employees (but) as permanent employees") states that
"whenever any employee wishes to further his education , and can afford
to, that Company permits them to attend school and work whenever they
can " I am sure Respondent accords this privilege to any of its employees
who desire to take advantage of it Nonetheless , it would appear that most
of the so-called student employees are hired with the understanding that
they intend to pursue their studies and are identified in the Company's
records as students from the start
"Thus they are entitled to paid holidays , insurance benefits and to
participate in the Company's wage dividend plan after completing the
standard 90-day probationary period and after they meet the other
day-to-day requirements for such benefits . However, with respect to the
insurance program since it is a contributory plan few if any participate. As
for vacations which require a full year of employment to be eligible,
Respondent points out that it would "obviously take 4 to 5 years to
accumulate a full work year ." Even so, Respondent claims that one of its
"school boys" employee received such a vacation in the past year. This
involved an employee who worked full time in addition to attending school
"The one so named by Respondent had actually attended college for
only 2 years
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indefinite nature of their employment. Brown-Forman
Distillers Corporation, 118 NLRB 454, George Groh and
Sons, 141 NLRB 931, 938-939; Central Mutual Telephone
Company, Inc, 116 NLRB 1663, 1667; Dixie Wax Paper
Company, 117 NLRB 548, 551, Belcher Towing
Company. 122 NLRB 1019; Oscar Ewing. Inc, 124
NLRB 941; Thompson, Weinman and Company and
Paga Mining Company, 125 NLRB 301; NLRB. v.
Joclin Manufacturing Company, 314 F 2d 627. In some of
these cases the students were hired as replacements of
vacationing permanent employees and in some the student
employees were not eligible for various employee benefits.
Since neither of these two circumstances were true of
student employees question here, Respondent contends
that these cases are not authority for excluding the student
employees from the unit. I disagree. I do not believe that
either one of these factors has any significant bearing on
the main thrust of these decisions. Surely, there is no
reasonable expectancy here of eventual permanent
employment in the unit.07 And the irregular, indefinite and
intermittent nature of the employment is also obvious I
do not believe that either one of the differentiating factors
relied on here by Respondent are of sufficient importance
to affect the basic rule of these cases. Accordingly, I shall
not include the student employees whose names appeared
on the June 5 payroll in my computation of the base."
This leaves a base figure so far of 219.
The Supervisors
In their brief the General Counsel name 24 employees
who they contend are supervisors°9 and analyze the
evidence about their status in support of their contentions.
Of these Respondent through its president, Svenson,
named six as working foremen,60 eight as leadmen," and
three as setup men." According to Respondent none of
the people it named as working foremen, leadmen or setup
men, nor those claimed by the General Counsel to be
supervisors, were in fact supervisors within the meaning of
the Act. Before attempting to analyze the evidence in
detail on this matter, certain broad aspects of it should
first be noted.
"If nothing else, Svenson 's own testimony that the students are being
trained for executive jobs shows this. And this also provides another reason
why this category should be excluded From Svenson 's testimony it would
appear that these jobs should be considered as trainee positions for jobs
outside the unit . Such trainees are customarily excluded from production
and maintenance units. Baltimore Transit Co. 92 NLRB 1260 , The Matter
Company, Ltd., 98 NLRB 937, Cherokee Textile Mills, Inc, 117 NLRB
350
.The names and clock numbers of those students are Bassett 2695,
Brophy 2464, Buckingham 2183, Dasenbrook 2198, Korink 2184, Peterson
2197, Zeller 2175, and Lonergan 2463. Two other employees who were
listed as students and whose names appear on the June 5 payroll I will
include in the unit and the base computation . These are J N Hall 2236
and T W Kennedy 2174 As of June 2 , 1965, Kennedy had been working
steadily just short of a year and Hall for about 9 months . In view of the
length and continuity of their employment they must be accorded the
status of permanent employees regardless of their student classification.
"The clock numbers and names of the individuals in question are C
Carlson 2990, A Carr 2763, M Christianson 2753, M Clark 2904, J
Donar 2912, G Emerson 2847, G. Fletcher 2785, P. Guetschow 2923, M
Johnson 2710, M. La Sala 2933, V Leatherman 2794, K Levine, R.
Lennard 2960 , D. Longnecker 2730, D Maynard 2735, T. Mcbride 2802,
L. Meyers 2854, D Nelson 2909 , H Olson 2940, G. Peterson 2989, H
Smith 2736 , G. Smuck 2757, F Svhreck 2878, and A Tegner 2756.
"Dale Longnecker , Howard Olson, Douglas Nelson , Axel Tegner, Phil
Guetschow , and Ray Lennard
"Mark Christianson , Myron Clark, Adney Carr , Gilbert Emerson, Mike
LaSala, Vic Leatherman, Frank Schreck , and Hubert Smith Also named
1. According to Stenberg, Respondent had only four
supervisors for its day shift which at the time in question
would have involved somewhere between 230 and 270
people." Those he named were Frank Dergins, chief
inspector; Carl Burchett, in charge of machine tool
hydraulic assembly, Hervy Arrick, general superintendent
of the machine shop; and Eric Johnson, who was
described by Svenson as "Superintendent over assembly."
Stenberg also named as an additional supervisor Clarence
Carlson who was in charge of the night shift. Added to
these as a supervisor is Darold Small who Svenson also
named as a supervisor in his testimony.
On the basis of the foregoing, Respondent would have
it believed that at the most six people (two of whom have
the status of superintendents) have had responsibility for
the direct supervision of a machine tool manufacturing
force as high as 270 people. This is a very unlikely ratio
of supervisors to rank-and-file employees The Ohio
Power Company, 80 NLRB 1334, 1339-40, Wonderknit
Corporation, 123 NLRB 53, 55.
2. Several witnesses including some called by the
Respondent testified that shortly before Respondent made
the move to the new plant site at Odin Plaza, there was
posted at at least one place in the old plan t14 a list of
Respondent's then supervisory employees There is no
question in my mind that such was the fact and I so find
Neither Stenberg nor Svenson specifically denied that such
a list had been posted but they testified that if there had
been such a list in existence or posted they were unaware
of it and knew nothing whatsoever about it. Considering
the close control Svenson held over the entire operation, I
do not believe their testimony.
Some of those named by the various witnesses as
having been on the list or lists" in question during 1963
and the early part of 1964 were Howard Olson, Dale
Longnecker, Mark Christianson, Douglas Nelson, Phil
Guetschow, Axle Tegner, Marvin Johnson, Adney Carr,
Donald Maynard, Ray Linnard, Myron Clark, Tom
McBride, and Knute Levine As can be seen from this
group all those who Svenson named as working foremen,
three he named as leadmen and two he named as setup
men were held out to the employees by Respondent in
early 1964 (just before the Union started its campaign) to
be supervisors. While Respondent would have it believed
that the move to the new plant resulted in changes that
would nullify or make obsolete any representations
appearing on the "list" in question, it appears from
Svenson's testimony that the duties of working foremen
and leadmen remained "substantially the same" at the
new plant as they had been in the old plant. Moreover,
the evidence shows that the duties of those in each
category involve no substantial differences between their
individual incumbents.
3. As noted heretofore in my discussion of Stenberg's
credibility, notwithstanding Respondent's position in its
brief and Stenberg's position on the witness stand that
working foremen were not supervisors, in his written
sworn statement Stenberg said, "Both Phil Guetschow and
Howard Olson are supervisors I personally so informed
them . . . they are part of management and so is Eric
by Svenson as a leadman was Wally Johnson.
"Marvin Johnson, Donald Maynard, and James Doner
"Svenson testified that Respondent's employment varied between these
figures
"Some of the witnesses testified that the list had been posted at two
different locations
"Hereafter I shall sometimes refer to this list of named supervisors
simply as the "list "
JOHN S. BARNES CORP. 929
Johnson." And in his explanation regarding the discharge
of McVay, Stenberg further stated "Another reason was
his wandering in the plant. I'm sure his foreman. Howard
Olson, reprimanded him for this many times . We have a
discipline system and Howard Olson could have
disciplined McVay for it " (Emphasis supplied.) As will be
recalled a similar admission occurred in Svenson's sworn
statement which also conflicts with Svenson's oral
testimony and Respondent's position here.
Several witnesses called by the General Counsel
testified as to the various duties of people they described
as Respondent's supervisors. Naming the individuals,
these witnesses (often illustrating with specific examples)
showed that those they named were in charge of varying
numbers of employees ranging up to 70; that they made
work assignments to them; that they directed employees'
work and transferred them from task to task; that they
did little or no production work in comparison to the
rank-and-file employees; that they "criticized" or reported
to their superiors poor work of employees or a breach of
conduct on their part; that they received and transmitted
to higher authority employee requests for wage increases;
that they granted employee requests for time off; that they
"contacted" employees about working overtime; that they
were introduced and held out to the employees as their
foreman or supervisors and that the employees so looked
to them; that they attended weekly production meetings
with top supervision; and that their names appeared on
the list of the supervisors which had been posted in the old
plant.
This testimony was not a composite of the duties of
working foremen, leadmen and setup men but applied
generally to all three classifications. Practically every one
of the above factors was attributed by the General
Counsel's testimony to Marvin Johnson, designated by
Respondent as a setup man, and to several of those
designated by Respondent as working foremen or
leadmen.
To counter the foregoing evidence, Respondent called
as witnesses the people whose supervisory status is at
issue. While on direct examination some may have denied
exercising specific supervisory functions their testimony
considered as a whole and after cross-examination
generally showed that the essentials of the General
Counsel's evidence was accurate.16 Thus, setup man
Marvin Johnson testified that he attends the weekly
production meetings where his opinion is voiced and
considered in the discussion as to whether they "are going
to make schedule or not." He attends these meetings
because he is responsible for production in this group,
which involves 12 to 14 employees. 67 He assigns work that
has been given to him for assignment by the general
superintendent of the machine shop, Hervy Arrick. In
making assignments he has discretion to pass out the
work based upon his knowledge of the varying abilities of
those in his group. If faulty work by any of Johnson's
group is discovered by the inspection people they inform
Arrick about it who in turn will inform Johnson and
together the two will investigate the matter. If Arrick is
absent, the matter would be brought to Marvin Johnson's
attention directly. He is "indirectly" responsible for the
bad work of his group. Employees on occasion seek his
intercession on behalf for wage increases. These he
discusses with Arrick. If an employee should make a wage
increase request directly to Arrick, as occasionally
happens, the latter checks with Johnson about it and gets
Johnson' s opinion about the employee's work.
Respondent's contention as to the status of the working
foremen, leadmen and setup men had been noted.
Respondent's position is that whatever overseeing or
directional functions anyone in the three foregoing
categories exercises with respect to the employees is
merely routine and does not involve the kind of
responsibility contemplated in the Act for supervisors. In
this connection it is interesting to note that Stenberg flatly
denied that any of the people in question have authority to
direct the work of others or authority to make effective
recommendations regarding them. To the contrary,
Svenson testified that leadmen have to have ability to
handle men which he described as "directing them and
showing them how to work" and "getting the workers
feeling friendly toward the leadmen" for the purpose of
working "in unison and syncronization." According to
Svenson a leadman has authority to report an idle man to
his superior or he can order the man to "get going." As
for the setup men, he approaches the men in a "friendly
and confidential manner and tells them their weaknesses"
but does not criticize them. According to Svenson, any
criticism they might have of employees the setup men
would convey not to the employees but to their superiors.
Svenson also admitted that both working foremen and
leadmen can grant time off to employees at least for short
periods.
According to Respondent the weekly production
meetings are for the purpose of scheduling production and
give rise to the individual work assignments which in
essence are then simply handed out by the employees who
attend the meetings to the employees who do not attend
them. The assignment, supervision and direction of the
work itself is all practically automatic, according to
Respondent, with what little authority is exercised by the
categories in question coming directly (and without any
intervening responsibility) from the five or six people
Respondent contends are its only supervisors.
There is no doubt that Respondent has at all material
times been run almost single handedly by Svenson and
that the ultimate and almost exclusive power over the
direction of the work, the hiring, the firing and the
granting of raises is vested in Svenson. Nevertheless, it is
clear to me from Respondent's prior action which listed
its supervisors, from the admissions Svenson has made58
and from the record as a whole, that the working
foreman, leadmen and set-up men at all times material
have been supervisors within the meaning of the Act and I
so find. Thus I find that all those named by Svenson as
appears in footnotes 50, 51, and 52 supra are supervisors.
This eliminates another 18 from the base bringing the
figure now down to 201.
In addition to those named by Respondent as being in
the three categories in question (as appears above) there
are seven others that the General Counsel would exclude
from the bargaining unit as supervisors' and one they
would exclude as an office clerical.60 The evidence as to
these is as follows.
"It is clear from Respondent's evidence that of the three categories in
question , setup men are considered to be the least significant in their
relationship to the employees Next in importance , are the leadmen who
would generally be more experienced and older in service than the setup
men but not as experienced and long of tenure as the working foremen
"He named Abney Carr, Douglas Nelson and Don Maynard as having
similar groups and duties as he.
"While Svenson also maintained that the categories in question had no
authority to recommend wage increases he nevertheless testified that they
could "recommend a review of wages for an individual."
"Gerald Smuck , Roy Linnard , George Fletcher, Loren Meyers, Tom
McBride, Knute Levine , and Gamier Peterson
"Albert Ritchie
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerald Smuck
Several of the General Counsel's witnesses testified that
Smuck was the supervisor in charge of maintenance work.
Carlisle testified that he had been told by Stenberg that he
would work for Smuck. According to Carlisle, Smuck
told him what to do, when to do it and how. Two others
worked with him under Smuck. Smuck on occasion
criticized their work in front of other employees and
assigned them from job to job.
Smuck's testimony shows that he has been with
Respondent over 12 years, 10 of which have been in
maintenance work. In this he works on everything --
machines, electrical, compressors, sprinklers, and cooling.
He has two or three others in the work with him who he
shows what to do and how to do it. He testified that "In a
manner of speaking" he is in charge of maintenance. He
determines what tasks are to be given priority. If he is
unable to so determine, he will go to Superintendent
Arrick about it. He works along with the men. Besides
doing this he has the duty of going outside and purchasing
what supplies and parts are needed in the work. In this
connection he has authority to make purchases without
prior approval if they do not exceed a certain amount. No
one else has such authority in the department except that
when he is absent one of the other men can so act.
Although denying any authority regarding the granting
of raises, he admitted that on one occasion he intervened
with Stenberg regarding one of the men in his department
to the extent of telling Stenberg that the man in question
"was a good man." He did not know if the man got a
raise. If his men want an hour or two off, he can and does
approve it without prior authorization from anyone else.
He will however, report such a matter to Arrick or
Stenberg. If his men do bad work he will criticize them
"to the extent it was wrong." If his department becomes
too pressed with work he "might suggest" to Stenberg
that they need outside help. In any event Stenberg
generally knows, when such is the case
Roy Linnard
Two employees testified that Roy Linnard was the
foreman of the toolroom. Linnard told the toolroom
employees what, when and where to do their work. He
also assisted them if they were having difficulty with their
work. Linnard was listed as a foreman or supervisor of
the toolroom on the list of supervisors that was posted in
the old plant.
There was nothing in Linnard's testimony to controvert
the foregoing. It appears that Linnard was originally
employed by Svenson as a foreman in charge of the
toolroom. Just previously Linnard had been foreman for
another employer. Linnard told Svenson that he would
accept the job only on the condition that he be permitted
to work along with the men. He admitted that his name
appeared on the list of supervisors as foreman.
George Fletcher
Fletcher was described by several employees as the
foreman of the stockroom. According to the testimony of
Englin, Fletcher mentioned to him that he had been made
foreman of the stockroom at the new plant. Englin asked
Supervisor Howard Olson if this were true, and Olson
confirmed it. Fletcher assigns work to employees and
instructs them how stock orders are to be filled. He
occasionally reassigns employees from one job to another
and criticizes improper work and requires that it be done
over. On at least one occasion on being asked by an
employee for a raise, Fletcher informed the employee that
he would talk to Stenberg about it. The employee
subsequently received the raise. Fletcher attends the same
production meetings which are attended by the foremen in
the assembly department.
In his testimony Fletcher admitted telling someone he
was foreman but claims he did so to avoid being solicited
by the Union. He admitted having been asked by
Strickland for a raise and having passed on the request to
his immediate superior, Darold Small, who sought
Fletcher's opinion as to how Strickland was performing.
He had also asked Svenson to hire two nephews of his
which Svenson did. He admitted being called into the
office during the summer of the election by Stenberg and
given a list of his job duties. He did not deny that he also
attends the weekly production meetings. He admitted that
he criticizes the work of those in his department and gave
as an example their carelessness in handling gears which
resulted in damage to them and a complaint from
Superintendent Eric Johnson to him about it.
Tom McBride
According to the General Counsel's evidence McBride
is a foreman in the inspection department in charge of
G.C. Pump Inspection. His duties are substantially the
same as those of another supervisor in the inspection
department, Myron Clark." He directs the work of
inspectors in the G.C. Pump Inspection and assigns work
according to the various inspectors' experience. He trains
new employees and points out mistakes to the inspectors.
He approves time off for employees and was listed as a
foreman on Respondent's list of supervisors
In his testimony McBride who was called to testify by
Respondent denied having any direct authority. He did
testify that he had 21-years tenure with Respondent and
admitted that he assigns work and uses discretion in
determining who to give it to. He also admitted being
classified as a foreman on the "list" which had been
posted in the old plant and that his duties had not
changed since that time.
Knute Levine
In his testimony John Brown, who worked under
Levine, described Levine as general foreman in the
experimental department at the plant. Brown received his
work assignments from Levine who checked his work and
pointed out mistakes to him Levine approved requests
from Brown for time off and also recommended Brown
for wage increases on two different occasions. When
Brown was transferred to the experimental department,
Svenson advised him that he would be working under
Levine. In early 1964, Levine complained to Brown about
his tardiness. When Brown was transferred from Levine's
department he was informed by Svenson that the transfer
was at Levine's request. Levine was also listed on
Respondent's list of supervisors.
Levine testified that he had been with Respondent 24
years, and that he is a serviceman. As such he goes out on
customer-service calls. This he does about one-quarter of
" As will be recalled Clark was named by Svenson as a leadman.
JOHN S. BARNES CORP. 931
his time. The other three-quarters of his time he spends in
the plant where he works in what is known as the model
shop. There, machines are rebuilt and modified and new
features tested. His only help in the model shop is one
other employee who he described as a trainee. For 4 years
he had John Brown work with him in this capacity. Then
Brown's work "slipped" and got worse as time went on.
So, feeling that Brown "wasn't being conscientious about
his work," Levine asked Svenson to be relieved of
Brown's assistance, which request Svenson complied with
Levine further testified that in his absence Superintendent
Eric Johnson takes over his functions. Levine is on a
salary basis in his job and owns stock in the Company.
He did not deny that he was named as a supervisor on
"the list."
Loren Meyers
According to the General Counsel's witnesses Meyers is
foreman of the shipping department. He was made
foreman at about the same time as Fletcher was made a
foreman. According to Englin's testimony he learned of
Meyer's promotion from Eric Johnson. Meyers directs the
work of other employees in the department and is the one
to whom other people in the plant bring their orders for
shipping. Meyers' duties involve a large amount of paper
work with bills of lading.
Meyers, who has been with Respondent 16 years,
testified that he was the shipping clerk. Darold Small "in
production" is in charge of the shipping department.
According to his testimony Meyers packages material,
writes bills of lading and railway express tickets and keeps
records on what is shipped and what supplies are needed.
He assists on occasion in loading and unloading. He tells
others in the department what to do if some priority
matter comes up and he is too busy to handle it himself.
He "criticizes" the work of those in the shipping
department if it is wrong and shows them how it should
be done. At the time of his testimony there was only one
other besides himself working in the shipping department
but sometimes there are as many as four working there.
Gamier Peterson
According to the witnesses Englin and Sam Huckabee,
Peterson was a foreman in the gear department of the
machine shop for many years. He attended the same
production meetings as the other foremen in the machine
shop. At the old plant, he had a desk in Respondent's
office. According to Huckabee, Peterson was his foreman
until sometime after the election in August 1964, at which
time he was transferred to a lay-out table where he lays
out work for the drill press machines.
Albert Ritchie
In the old plant Ritchie had a desk in the office with
Eric Johnson, Frank Dergin and Harvey Arrick. When
the move to the new plant was made Ritchie's desk was
put in the stockroom on his own initiative according to his
testimony. According to the General Counsel's witnesses,
Ritchie attends the same production meetings as Johnson
and the assembly department foreman and he
"supervised" the moving of the stockroom from the old
plant to the new. His work is entirely clerical. Ritchie's
undenied and credited testimony shows that his work is
chiefly concerned with the listing of stock shortages as
reflected in various jobs specifications and with
requisitions for replacement parts. He does not punch a
timeclock as do other production employees
On the basis of the foregoing evidence I find that
Smuck, Linnard, Fletcher, McBride and Levine are
supervisors within the meaning of the Act. I reject,
however, the General Counsel's contentions that Meyers
and Peterson are supervisors. I do not believe that
Meyers' direction of his fellow worker or workers is of the
same caliber of responsibility as that of the ones I have
found to be supervisors In addition, unlike most of the
others, he neither attended production meetings nor was
he on the "list" of supervisors. As for Peterson, regardless
what his status may have been at one time, it would
appear that as of June 2, 1965, his work was that of a
layout man and so far as the record shows he works in
this capacity all by himself He could hardly be called a
supervisor on this basis. Of the five foregoing employees
that I find to be supervisors only three, Smuck, Linnard
and McBride, appeared on the June 5 payroll. Their
elimination reduces the base figure now to 198.
In my opinion Ritchie is a plant clerical not an office
clerical and as such must be included in the unit. I so find.
His duties are all connected with and directed toward the
production function. While it may be that he also attends
production meetings attended by supervisors his clerical
involvement in the production function would justify his
presence at these meetings as a clerk and not a supervisor
Respondent claims that there were six employees whose
names do not appear on the June 5 payroll record because
of various excused absences and that they should be
included in the unit roster.6S In this connection the
evidence shows that D. J. Hanson, clock no. 2310, was
employed from October 26, 1964, to December 3, 1965.
During the week of June 5 he was on leave engaging in
Naval Reserve duty. Charles L. Smith, clock no. 2926,
and Thomas Staples, clock no. 2323, were both on
excused leave during the week of June 5. 1 find that these
three employees clearly should be included in the unit
roster. These, added to the previous figure of 198, now
show a total of 201.
According to Stenberg's testimony, Oscar Lindstrand
was recuperating from surgery between March 20 and
July 9, 1965. This he was doing under the Company's
group insurance policy During this time or shortly before,
he had reached a decision to retire because he apparently
had passed the Social Security retirement age.
Accordingly, he was separated officially by the Company
on July 9, 1965.63 Although Lindstrand was apparently
carried on the company payroll technically as of June 2,
1965, since he had been off long before that and never did
return to work, I am of the opinion he should not be
included in the unit roster and I so find.
As in the case of Lindstrand, I find that G.
Beauchamp, clock no. 2297, should not be included in the
unit for essentially the same reasons as Lindstrand was
not included. According to Stenberg's testimony,
Beauchamp was hospitalized from the period of April 16
to June 7, 1965. He was terminated by Respondent on
June 7, 1965, "several days" after his wife had come in
and informed the Company that Beauchamp "would not
be returning." Stenberg was unable to say the exact
number of days it was that Beauchamp was terminated
"The names and clock numbers of these six are D J Hanson 2310,
Charles L Smith 2926, Thomas Staples 2373, Oscar Lindstrand, G
Beauchamp 2297, and G. Fletcher 2785
"Previously Stenberg had testified that July 9 was the last day that
Lindstrand had worked
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the Company learned he was not returning.
Another employee that Respondent contends should be
included in the unit roster is George Fletcher, clock no.
2785, who was absent during the week of June 5 due to
illness. Since I have found that George Fletcher is a
supervisor within the meaning of the Act, I find that he
should not be included in the unit.
One other person who was listed on the June 5 payroll
I find should not be included in the unit. This employee
was Craig Carlson, clock no. 2245, whose last day of
work was June 1 , 1965. He resigned on that day to accept
employment elsewhere and his separation paper is dated
June 2, 1965. A union authorization card was signed by
Carlson and is in evidence as General Counsel's Exhibit
A-18. His elimination brings the base figure now down to
200.
According to Stenberg's further testimony, Gregory
Ellison failed to report for work just before the Memorial
Day holiday in 1965." According to Stenberg, "after the
second day" of his absence, his father called the Company
and stated that Respondent "could assume he was no
longer an employee." It was not until June 3 or 4 that his
termination papers finally "caught up with the
termination ...." Since he was technically on the payroll
as of June 2, the General Counsel would include him in
the unit 66 As in the case of Lindstrand, I feel that since
Ellison left the Company's employment prior to June 2
and never returned he should not be included in the unit
roster. I so find.
In support of its claim of majority representation as of
June 2, 1965, 119 authorization cards were offered and
received in evidence through the testimony of the Local's
business representative, Guy Stubblefield and Grand
Lodge representative, Kenneth W. Black . Their testimony
shows that in May of 1964, Stubblefield had sent Black 96
cards together with a list of the 96 signers . Black in turn
sent the cards and the list of signers to the Regional
Office of the Board in support of the RC petition. The
receipt of 96 cards was acknowledged by the Board office
on May 26, 1964. In June of 1965, (June 8 specifically)
Stubblefield sent Black 122 cards and a list of the signers
showing their addresses and telephone numbers." In his
letter of June 8 to Black , Stubblefield indicated that "in
addition to those persons listed, there are seventeen
employees who signed the cards in last years drive who
are still employed with the Company." This batch of 122
cards Black also sent to the Board office with a list of the
signers this time in support of an 8(a)(5) charge.
Receipt of this 122 cards was acknowledged by the
Regional Office on June 11 , 1965. According to Black, the
119 cards in question were all taken from those which he
had received from Stubblefield in the two batches
described above. He explained that some of the cards
from these two batches had been eliminated and were not
included in the 119 because the signers were no longer
employed by Respondent . Admittedly, neither of the
union representatives saw any of the cards in question
signed nor could they authenticate any of the signatures or
dates on them.
"May 30 fell on a Sunday; accordingly, the holiday was observed on
Monday, May 31
"Ellison 's inclusion in the unit would be germane considering the fact
that he signed an authorization card which the General Counsel would
have counted in determining the question of majority
"According to Stubblefield's testimony, blank cards had been attached
to handbills on numerous handbilling occasions and had been given to key
union supporters for solicitation purposes . Signed cards were mailed to the
Union, turned in by key supporters , and handed in at the company gates
At the time the 119 cards were offered in evidence
(which was on November 5, 1965, early in the hearing) the
General Counsel indicated on the record that he had no
objections to Respondent's "taking these cards and
comparing them with any records (Respondent) may
have" including W-4 forms and cancelled pay checks
which had been subpoened and were on hand in the
hearing room. This suggestion was repeated to
Respondent before the close of the hearing which occurred
on January 13, 1966, after two intervening recesses
totaling almost 2 months. At no time during the hearing
did Respondent take any action regarding these cards
other than to object to their receipt in evidence on the
ground that they had not been properly identified.
Notwithstanding the objection the cards were received on
the basis of the foregoing evidence, the General Counsel
contending that their validity had been prima facie
established within the rational of I Taitel & Sons, 119
NLRB 910 and Hunter Engineering, 104 NLRB 16 which
cases were enforced by the 7th and 8th circuits
respectively. I agree . See also Northwest Engineering
Company, 158 NLRB No. 48.
In its brief the Respondent raises objections to the
counting of various cards for the purpose of the majority
computation. Thus, as has been shown, Respondent would
eliminate the cards of the two alleged discriminatees,
Brown and Roskopp on the grounds that they were not
employed on the date of demand. My disposition of those
matters disposes of this contention.
Respondent would also eliminate all cards dated June
1, 1965, and later on the grounds that these could not
have been in the hands of the Union at the time it made
its request for recognition. As for the June I cards" it is
clear that they could have been in the Union's hands at
the time the June I demand was written and may well
have been the motivation that triggered the Union's
decision to request recognition on that date. Accordingly,
I shall count the June l cards except that of Burle Jones
whose card was postmarked June 3, 1965.
I shall not count the cards dated June 2,68 however,
because Stubblefield testified that he received no cards
after he wrote Respondent on June 1 requesting
recognition. Nor will I count the two cards dated June 4,
1965. These were General Counsel's Exhibit A-61 signed
by Thomas L. Kruse and General Counsel's Exhibit A-90
signed by Mary Schmaling. However, two other cards
which had been signed by these two employees were
received in evidence, General Counsel's Exhibit 24 signed
on April 1, 1964, by Kruse and General Counsel's Exhibit
25 signed on April 2, 1964, by Schmaling. These two
cards I will count in my computation of the majority for
the reasons that will appear in my disposition of
Respondent's "stale cards" contention next to be
considered.
all during the period from February 1964, to June 1, 1965 Both on direct
and cross-examination , however , Stubblefield insisted that no cards were
received by him after June I, 1965. As will be shown later, several of the
cards in question bear dates after June I, 1965
"The General Counsel 's Exhibit No . and the names of the signers are.
A-6 Harry Armbruster, A-12 Otto Biderbost, A-39 Olin L Halle, A-45
James Hillmer, A-46 Betty C. Hollon, A-52 Burle Jones , A-56 David Kiel,
A-57 James King, Jr., A-62 Bob Lace, A-67 Mabel S . McCall, A-94
Charles W Shelby, A-97 Donna Ann Spencer , A-104 Thomas W
Strickland , A-113 Arthur Wemmer , and A- 115 Bernard L. White.
"The General Counsel's Exhibit No . and names of the signers are: A-3
James Alverson , A-25 William C. Cross, A-70 Joe H Morgan , and A-114
Milburn West.
JOHN S. BARNES CORP. 933
Stale Cards
Among the 119 cards offered in evidence to prove the
Union's majority (in addition to the Kruse and Schmaling
cards just mentioned) were 10 cards dated on various
dates between February 25 and June 1, 1964,69 which
Respondent claims are "stale" cards from a prior
campaign and not valid or usable to prove the extent of
union support in a subsequent campaign. In this
connection Respondent apparently attaches great
significance to the two organizing drives made by the
Union and to various comments made by the union
officials and the General Counsel regarding them. Thus
Respondent points out that the 1964 cards "were used to
support the representation petition which resulted in the
election on August 12, 1964 - in which the Union did not
receive a majority vote,"70 and were used also to support
at that time a refusal to bargain claim which was later
withdrawn because of a lack of majority at the time the
demand for recognition was made. According to
Respondent this 1964 " `campaign ' was completely
separate from (the) 1965 organizational drive" and the
authorization cards obtained in the 1964 " 'campaign'
cannot evidence employee interest in the present new
(1965) case. They are stale."
Attempting to show that this was the position of the
General Counsel, Respondent quotes from his opening
statement in reference to the 1964 campaign as follows:
At that time the machinists commenced an
organizational campaign at Respondent's company.
This campaign continued until a demand was made in
the latter part of May, 1964, which demand was
refused. Then a petition was filed, an RC petition, and
there was an election held. This election, it was lost by
the Union and objections were filed *as were charges
alleging 8(a)(1), (3) and ( 5) violations** and this
employee list was checked, and upon checking it counsel
for the General Counsel determined there was no
majority and counsel for the General Counsel then
asked that the 8(a)(5) charge be withdrawn.* Now the
Union again on June 1, (1965) made a new demand. So,
we have here again another 8(a)(5) charge.*
In this same connection Respondent quotes Business
Agent Stubblefield's reference in his June 8, 1965, letter to
Grand Lodge Representative Black about "last year's
drive." And to further show that "the Union (also) knew
that the 1964 'campaign' was completely separate from its
1965 organizational drive" Respondent points to the
testimony of Thomas Pixler who identified his undated
card (General Counsel's Exhibit A-80) as having been
signed by him on May 13, 1965. He also admitted having
signed an authorization card prior to the August 1964
election. When asked why he had signed a card in 1965
when he had already signed one in 1964 he testified,
"Well, I don't know. They came around and said they had
to have these signed again. I don't know. They said the
other cards were no good, invalid, or whatever you call
it." Respondent also points to the fact that 28 cards dated
after February 1965 bear the same employee names as
"The General Counsel ' s Exhibit No . and names of the signers are as
follows : A-118 James E . Wolfram , A-117 Rodney Wolf, A- 112 Elmer
Clifford Walker , A-106 Thomas William Swinbank , A-101 Gerald Bryan
Strait , A-87 Albert Ruskavage , A-34 Harry Gillette , A-29 Gerald W.
DeVries, A-I I John L . Brown , and A-79 Darwin Peterson.
"Respondent neglected to point out that the objections filed by the
Union to the conduct of that election are still outstanding and are an issue
in this proceeding.
were listed on the Union's 1964 list of signers submitted
to the Board. This shows, says Respondents, that "The
Union knew the 1964 cards were stale and they tried to
cover them" by reaffirmation.
As authority to support its "stale cards" contention
Respondent relies on Grand Union Co., 122 NLRB 589.
That case is distinguishable on its facts. There, employees
who signed authorization cards in an unsuccessful
organizing campaign in 1955 testified that they did not
want the Union to represent them in a subsequent
campaign in 1956 and did not sign other authorization
cards until a union security clause was executed. Here
there was no such affirmative disavowal by the employees
of their union support and commitment.
This case is more like Knickerbocker Plastic Co., Inc..
104 NLRB 514, relied upon by the General Counsel to
support his contention that the 1964 cards received in
evidence should be considered valid authorizations for the
purpose of establishing that the Union represented a
majority of the employees when it demanded recognition
on June 2, 1965. In that case an organizing campaign
started in mid-1950 and resulted in a Board-conducted
election in early September 1950 which the Union lost.
Objections to the election were filed and on January 31,
1951, a hearing was ordered by the Board on the
objections. In the meantime, unfair labor practice charges
had been filed against the Company and a complaint was
issued in January 1951 which was consolidated with the
objections hearing. The consolidated hearing took place in
April 1951, the Trial Examiner's Intermediate Report was
issued in May and the Board's decision was issued
October 2, 1951, substantially upholding the Trial
Examiner's finding of unfair labor practices on the part of
the Company and setting aside the election.
No organizational activity took place from the time of
the election in September 1950 until January or February
1951 when the Union again began soliciting authorization
cards from the employees. On March 21, 1951, the Union
sought recognition which request the Company refused to
honor. This refusal among other things resulted in
additional unfair labor practice charges by the Union
which culminated in the issuance on December 29, 1951,
of another complaint against the Company and the
ultimate finding by the Trial Examiner and the Board of a
refusal to bargain (among other violations) against the
Company. In the findings regarding the refusal to bargain
some 238 authorization cards which had been signed in
the second or 1951 organizing drive were used in
determining whether the Union represented a majority
along with some 13 cards which had been signed in the
first or 1950 organizing drive. These latter cards were
found by the Trial Examiner and the Board to be
"reasonably current cards signed in support of (the)
machinists during the same organizational campaign and
properly receivable in evidence ...."
Regardless what legal significance or lack thereot in
1965 the Union here may have attributed to the 1964
authorizations it had obtained I find that here as in the
Knickerbocker case the Union's 1965 organizing efforts
were simply a continuation of its 1964 organizing
campaign which had been interrupted by Respondent's
unfair labor practices. Accordingly I shall accept the 1964
cards as valid authorizations and include them in my
computation of the majority.
Having found that the 1964 cards are valid
authorizations I shall also accept the cards to which the
Respondent objects on the basis that no year is shown in
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their dates but only the month and day of their execution."
I note that eight of these cards bear the Board's intake
stamp of June 10, 1965 Apart from this, however, it is
clear from the overall record that the cards in question
were solicited and received in either the 1964 drive of the
1965 drive Since none are dated later than May 29, they
are all valid whether they were received in 1964 or 1965
on the basis of my conclusions regarding Respondent's
"stale cards" contention.
Respondent also objects to two cards which are
undated These are General Counsel's Exhibit A-68 signed
by James Miller and A-80 signed by Thomas Pixler. Since
Pixler testified, as shown, that he signed his card on May
13, 1965, 1 shall accept it. Miller's card, however, having
no date on it whatsoever and no Board stamp that might
show it was obtained before June 2, 1965, I shall reject.
Slightly over half of the 119 cards in question here
show the Board's intake stamp which indicates the date
and time of day that they were received by the Board.
Some 53 of the cards, however, do not show such a
record. Respondent apparently would disqualify these
cards on this basis. While the Board intake stamp may
add some support to the authenticity of the date of any
given card, I do not believe that the absence of such a
stamping, under the particular circumstances here, is a
fatal defect to such identification.72 Accordingly I reject
Respondent's contention.
From the foregoing it is seen that I have eliminated 10
of the 119 cards originally relied upon by the General
Counsel to prove the Union's majority." But I have
accepted the two cards signed by Kruse and Schmaling in
1964, in place of those they signed in 1965. The result is
that I have Ill cards which I find were valid union
authorizations as of June 2, the date the Union's demand
for recognition was received by Respondent. Since I have
found that there were 202 employees in the bargaining
unit at that time, it is clear that at the time of its request
the Union represented a majority of the employees and I
so find
As a final defense to the refusal to bargain charges
here, Respondent maintains that even if it be found that
the Union represented a majority of the employees at the
time it requested recognition, the refusal on the
Company's part to recognize the Union cannot be
assessed against it as a violation of Section 8(a)(5) of the
Act for the reason that Respondent entertained a
good-faith doubt at that time that the Union represented a
majority of the employees. I reject this contention.
Whatever persuasiveness or lack of it Respondent's
explanations and arguments in this connection" might
have had under different circumstances, such a claim in
the context of Respondent's repudiation of the settlement
agreement and its continuous and sustained illegal conduct
"The General Counsel's Exhibit No , the names of the signers and the
dates as written on the cards are as follows. A-10 James Richard Beck
May 29, A-22 Earl Lee Clark May 27, A-24 William H Covert May 28,
A-35 Andrew Goodman May 28, A-53 Perley Kennedy April 10, A-50
Jack Huckabee May 27, Al-10 Donald R Vanderheyder May 26, A-66
Robert Long May 28, A-84 Walter Reuber May 25. Another card was
included in this group A-32 that of Gregory C. Ellison His card of course
will not be counted since I found that he quit Respondent 's employment
prior to June 2, 1965
"The signers of all 53 cards in question are listed on one or the other of
the lists submitted to the Board by the Union together with the cards on
either June 9, 1965, or May 26, 1964.
"The General Counsel 's Exhibit No and names of those eliminated are
A-52, Burle Jones , A-3 James Alverson, A-25 William C Cross, A-70
Joeh Morgan , A- 114 Milburn West, A-90 Mary Schmalmg , A-61 Thomas
clearly shows a rejection of the principle of collective
bargaining. N L R B. v. Joy Silk Mills, Inc, 185 F.2d
732. And even if it could be said that Respondent's initial
reaction to the Union's demand was a good-faith doubt of
majority, which I do not believe," I am of the opinion
that its conduct precludes it from relying on this as a
defense. Cf Gruber's Food Center, Inc., 159 NLRB 629.
As the court recently observed in Movie Star, Inc., et al.,
C.A. 5, May 24, 1966, "The effect of Respondent's
numerous Section 8(a)(1) violations was to transform a
possible good-faith doubt of the Union's majority into a
bad-faith virtual certainty." On the basis of the foregoing
and the record as a whole I find that Respondent's refusal
to recognize the Union on and after June 2, 1965, was a
refusal to bargain within the meaning of Section 8(a)(5) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth
above, occurring in connection with the operations of
Respondent described in section 1, have a intimate and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1), (3), and (5) of
the Act, I shall recommend that it cease and desist,
therefrom, and take certain affirmative action designed to
effectuate the policies of the Act.
I have found that Respondent discriminated against
employees Roskopp and Brown by discharging them and
against employees LaSala and Edwards by increasing their
hours of work. I will recommend that Respondent be
ordered to reinstate Roskopp and Brown to their former
or substantially equivalent positions without prejudice to
their seniority and other rights and privileges and make
them whole for any loss of earnings they may have
suffered because of the discrimination against them, by
payment to them of a sum of money equal to the amount
of wages they would have earned from the date of the
discrimination to the date of the offer of reinstatement
together with interest thereon at the rate of 6 percent per
annum, and that the loss of pay and interest be computed
in accordance with the formula and method prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716, to
which the parties are expressly referred. I shall also
recommend that Respondent be ordered to reduce the
work hours of LaSala and Edwards, if those employees
L Kruse, A-32 Gregory C. Ellison, A-68 James Miller, A-18 Craig
Carlson
"Among the reasons Svenson gave as support of his good-faith doubt
was the Union's loss of the election in 1964 and the fact that the Union
also lost an election in 1950; his own knowledge of "what a worker will do
in connection with signing a card and what he will do when it comes to
placing the vote in a ballot box", his having "glanced at some law reports
and at least one speech by Frank McCullock, chairman, National Labor
Relations Board" pinpointing "the idea that it is not the number of cards
the men send to the Union . (but) what they do at the election";
newspaper articles "about Unions losing . membership", and the better
working conditions and pay that the employees were receiving
"On cross-examination , Svenson admitted that he had no idea how
many people had signed cards and that he "didn't care how manycards
had (been ) signed up" - - that his only concern was for "the ballot box "
JOHN S. BARNES CORP.
are willing, to the level that they had been before they
were discriminatorily increased by Respondent.
Having also found that the Respondent refused to
bargain collectively with the Union, as the majority
representative of its employees in an appropriate unit, I
shall recommend that the Company be ordered to cease
and desist therefrom and upon request to bargain
collectively with the Union with respect to wages, hours,
and other terms and conditions of employment, and
embody in a signed contract any agreement so reached.
The unfair labor practices committed by Respondent
here strike at the heart of the rights guaranteed employees
by Section 7 of the Act.76 The inference is thus warranted
that Respondent maintains an attitude of opposition to the
purposes of the Act with respect to the protection of
employee rights in general . It will, accordingly, be
recommended that Respondent cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. 77
It is clear that there is sufficient evidence to set aside
the election results of August 12, 1964. However, in view
of my recommended order that Respondent be required to
bargain with the Union, I shall recommend that the
petition in Case l3-RC-10159 be dismissed and that the
Board vacate all proceedings therein. Shelby
Manufacturing Company, 155 NLRB No. 39
Conclusions of Law
On the basis of the foregoing findings of facts and upon
the entire record in this proceeding I make the following
conclusions of law:
1. John S. Barnes Corporation at all times material
herein has been an employer within the meaning of
Section 2(2) of the Act.
2. Lodge No. 1553, International Association of
Machinists , AFL-CIO, at all times material herein has
been a labor organization within the meaning of Section
2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed them by
Section 7 of the Act, as found above, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminating against its employees as found
above, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. By failing and refusing to bargain with the Union on
and after June 2, 1965, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of
the Act.
6. All production and maintenance employees at
Respondent's plant located at Odin Industrial Plaza,
Rockford, Illinois, including plant clerical employees, tool
crib attendants, timekeepers, shipping and receiving
clerks, outside truckers, stockroom attendants, janitors
and servicemen; excluding all office clerical employees,
professional employees , guards and all supervisors as
defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
71N.L. R.B. v. Entwistle Manufacturing Co., 120 F.2d 532 (C.A. 4).
"May Department v. N.L.R. B., 326 U .S. 376 ; Bethlehem Steel
Company v . N.L.R.B., 120 F.2d 641.
RECOMMENDED ORDER
935
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, Respondent, John S. Barnes
Corporation, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, and other conditions of
employment with Lodge No. 1553 International
Association of Machinists, AFL-CIO, as the exclusive
representative of its employees in the above-described unit.
(b) Interrogating employees concerning their union
membership, activities and desires.
(c) Promising or granting employees wage increases and
other benefits or improvements in their terms or
conditions of employment on condition that they refrain
from becoming members of Lodge No. 1553,
International Association of Machinists, AFL-CIO, or
any other union.
(d) Keeping under surveillance the meeting places,
meetings, and union or other concerted activities of
employees.
(e) Creating the impression that they are keeping under
surveillance the activities of Lodge No. 1553,
International Association of Machinists, AFL-CIO, or the
concerted activities of employees engaged in for the
purpose of collective bargaining or other mutual aid or
protection.
(f) Restricting the movement of employees, or refusing
to grant employees transfers, wage increases, and other
benefits or improvements in their terms and conditions of
employment because they engage in union or other
protected or concerted activities.
(g) Threatening employees with loss of employment or
other reprisals if they give any assistance to Lodge No.
1553, International Association of Machinists, AFL-CIO,
or engage in other concerted activities.
(h) Promulgating and maintaining any plant rules
prohibiting employees from supporting and soliciting for
Lodge No. 1553, International Association of Machinists,
AFL-CIO, only.
(i) Telling or advising employees that they should not
cooperate with the Board or its agents.
(j) Discouraging membership in the above-named Union
or any other labor organization by discriminatorily
discharging employees , or in any other manner
discriminating against them in regard to their hire or
tenure of employment or any term or condition of
employment, except as authorized in Section 8(a)(3) of the
Act.
(k) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join or
assist the above-named Union or other labor
organizations, to bargain collectively to representatives of
their own choosing, and to engage in any other concerted
activity for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, meet and bargain collectively with
Lodge No. 1553, International Association of Machinists,
AFL-CIO, as the exclusive representative of all employees
in the aforesaid appropriate unit, concerning rates of pay,
wages, hours of employment and other conditions of
employment, and if an understanding is reached, embody
such understanding in a signed agreement.
(b) Offer immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
to Peter Roskopp and John Brown and make them whole
for any loss of pay they may have suffered by reason of
Respondent's discrimination against them by payment to
each of them of a sum of money equal to what he would
normally have earned as wages but for the discrimination
against him less his net interim earnings, Crossett Lumber
Company, 8 NLRB 440, 497-498, said backpay to be
computed on a quarterly basis in the manner established
in F. W. Woolworth Co., supra
(c) Preserve, upon request, make available to the Board
and its agents, for examination and copying all payroll
records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in determining the amount of backpay
due under the terms of the recommended order.
(d) Post at its plant in Rockford in the Odin Industrial
Plaza, Rockford, Illinois, copies of the attached notice
marked "Appendix."78 Copies of said notice to be
furnished by the Regional Director for Region 13, shall,
after being duly signed by the Respondent's
representatives be posted by Respondent immediately
upon receipt thereof and 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
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Decision and
Recommended Order, what steps Respondent has taken to
comply herewith.79
I also recommend that the petition in Case
13-RC-10159 be dismissed and that all proceedings in that
case be vacated.
"If this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner" 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 "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
"In the event that this Recommended Order be 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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Local No. 1553, International Association of
Machinists, AFL-CIO, as the exclusive representative
of employees in the unit described below, concerning
rates of pay , wages, hours of employment and other
conditions of employment.
WE WILL NOT discourage membership in the
above-named union or in any other labor organization,
by discharging employees or discriminating against
them in any other manner in regard to their hire or
tenure of employment or any term or condition of
employment except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act
WE WILL NOT interrogate our employees concerning
their union membership , activities and desires.
WE WILL NOT promise or grant to our employees
wage increases and other benefits or improvements in
their terms or conditions of employment on condition
that they refrain from supporting or becoming members
of Lodge No. 1553, International Association of
Machinists , AFL-CIO, or any other union.
WE WILL NOT keep under surveillance the meeting
places, meetings , and union or other concerted activities
of our employees.
WE WILL NOT create the impression that we are
keeping under surveillance the activities of Lodge No.
1553, International Association of Machinists,
AFL-CIO , or the concerted activities of our employees
engaged in for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL NOT restrict the movement of our
employees , or refuse to grant our employees wage
increases, and other benefits or improvements in their
terms and conditions of employment because they
engage in union or other protected or concerted
activities.
WE WILL NOT threaten our employees with loss of
employment or other reprisals if they give any
assistance to Lodge No. 1553, International Association
of Machinists , AFL-CIO, or engage in other concerted
activities.
WE WILL NOT promulgate and maintain any plant
rules prohibiting our employees from supporting and
soliciting for Lodge No 1553, International Association
of Machinists , AFL-CIO, only.
WE WILL NOT tell or advise our employees that they
should not cooperate with the National Labor Relations
Board or its agents.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights guaranteed to them in Section 7 of the Act,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
WE WILL cut back the hours of Sam LaSala and
Clyde Edwards , if they so desire , to the hours they were
working before they were discriminatorily changed by
us.
WE WILL offer John Brown and Peter Roskopp
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges , and make
them whole for any loss of earnings suffered by reason
of the discrimination against them, as provided in "The
Remedy" section of the Trial Examiner's Decision.
WE WILL bargain , upon request , with Lodge No.
1553, International Association of Machinists,
AFL-CIO, as the exclusive bargaining representative of
JOHN S. BARNES CORP. 937
our employees in the appropriate bargaining unit with
respect to rates of pay, wages, hours of employment
and other terms and conditions of employment and we
will embody any understanding reached in a signed
agreement. The appropriate bargaining unit is:
All production and maintenance employees located at
Odin Industrial Plaza, Rockford, Illinois, including
plant clerical employees, tool crib attendants,
timekeepers, shipping and receiving clerks, outside
truckers, stockroom attendants, janitors and
servicemen ; excluding all office clerical employees,
professional employees, guards and all supervisors
as defined in the Act.
All our employees are free to become, remain or refrain
from becoming or remaining, members of the
above-named union , except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
JOHN S. BARNES
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employees if
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 of 1948, as
amended, after discharge from the Armed Forces.
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 questions concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse & Federal Office Building, 219 S. Dearborn
Street, Chicago, Illinois 60604, Telephone 353-7597.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: On August 26,
1966, I issued my Decision (TXD-494-66) in captioned
matters finding inter alia that as of June 2, 1965, the
Union represented a majority of Respondent's employees
in an appropriate bargaining unit and that Respondent's
refusal to then recognize the Union as the duly designated
collective-bargaining agent of its employees violated
Section 8(a)(5) of the Act.
On January 9, 1967, the Board issued an order
reopening the record and remanding the proceeding for
further hearing for the purpose of adducing evidence
bearing on the question of the "authenticity of the
signatures" on the authorization cards (G.C. Exhs. A l
through A 119 excepting A 80)' which I had received in
evidence under the rational of the Taitel case' and upon
which I had based my finding that the Union represented
a majority of the employees. The Board further ordered
that upon the conclusion of such hearing, I issue a
supplemental decision containing findings of fact as to the
"authenticity of said union authorization cards,"
conclusions of law, and the recommendations.
At the outset of the hearing, Respondent indicated that
it would not comply with the General Counsel's subpoena
duces tecum pertaining to certain company records
containing the signatures of employees whose alleged
union authorization cards were the subject of the remand.
Because of this refusal the General Counsel, in addition to
offering the testimony of individual card signers and
others, introduced certain "secondary" evidence to take
the place of the evidence sought under the subpenas. This
material was received in evidence on the General
Counsel's representation that it would be the base upon
which he would offer the testimony of an expert witness to
authenticate the signatures on various authorization cards.
Upon the entire record and from my observation of the
witnesses, I make the following
Additional Findings of Fact
As found in my original decision, as of June 2, 1965,
there were 202 employees in the bargaining unit which
would require 102 valid authorizations to constitute a
majority Respondent contends that for various reasons as
will appear, 68 of the 119 cards were not valid
authorizations to the Union to act as the
collective-bargaining agent of the employees. Respondent
attacks the validity of these cards in groups or categories.
The evidence as to these cards (but not necessarily in the
groupings used by Respondent) follows:'
A. No Evidence as to Authenticity of Signatures
1. Joe Mullen (G.C. A 72)
Lester Kruse , called as a witness by the General
Counsel , identified his own card (G C. A 60). When asked
on cross-examination if he remembered where he was
when he signed his card , he answered:
Yeah. Me and this Burt Mullen , he don ' t work at John
S. Barnes, either , but we was down at my mother's
hotel and we signed it . I gave it to Burt and he mailed
them . I believe that's how they went in.
Although he testified that Mullen had signed a card at the
same time that he did, he "couldn ' t actually say" that he
watched Mullen sign the card . He further testified that he
did not look to see what Mullen did with the card. Kruse
"just put (his card ) down and filled it out and handed it to
him and he says 'OK ,' he was going to mail them."
Although Kruse promised to provide letters he had
received from Mullen for the purpose of comparing the
signatures on them with the card in question, he did not
do so. On recross-examination when it was suggested to
him that he was "not absolutely sure that ' s Joe Mullen's
signature , he answered , "No, I'd have to go get his letters
and see his signature ." Kruse's card was dated May 20,
1965. The Mullen card is dated May 24, 1965. 1 disagree
with the General Counsel that the Mullen card has been
'The exhibit numbers of the cards will simply be prefixed with an
abbreviation of the words General Counsel as G.C , as, for example, GC A
80, which incidentally was identified in the first.
'I Taftel & Son , 119 NLRB 910, affd. 261 F.2d 1 (C.A. 7), cert. denied
359 U S. 944
'In all instances where the General Counsel offered proof of the cards by
others than the actual signers or someone who saw the cards signed he
established that the signers had failed to respond to subpenas or were
otherwise unavailable . No specific attack on any card is made by
Respondent on the basis of any lack of diligence by the General Counsel to
get the proper witnesses.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficiently identified on the basis of the foregoing
evidence to be included in the majority computation
2 Bill Taylor (G.C. A 109)
No credible evidence was offered by the General
Counsel to establish the validity of this card, the General
Counsel in effect apparently maintaining that the card
should be considered valid under the rule of the Taitel
case. This card also will be excluded
same thing ." No one accepted her offer.
2 Roger Kessel (G.C A 55)
Norma Kessel, Roger Kessel's mother, testified that she
recognized the signature on G C A 55 and that the
signature was that of her son Roger " . I'm pretty sure,
it sure looks like it." She also testified that she was not a
"handwriting expert" and that she could not recall seeing
this particular signed card before
B. Signatures Repudiated
1. Rodney Wolf (G.C. A 117)
When the General Counsel learned that Wolf did not
sign a card nor authorized anyone to sign for him, he
withdrew the card from evidence
2. Roger Couch (G C. A 23)
Couch testified on direct that the card in question was
signed by him and that all the other writing and printing
on it was his . He also testified that he read the card
before he signed it. On cross-examination, after giving a
sample of his signature and being shown it along with the
card in question , he still maintained that the signature on
the card was his. After being asked to furnish additional
samples of his signature and being cross-examined further
on the matter , he finally admitted that the signature on
the card was not his . He nevertheless maintained that he
did sign a card like the one in question On redirect he
was asked if he knew who put the signature on the card
and he answered-
A. I believe I do.
Q. Who?
A Don the janitor.
Q Were you there?
A. I told him; yes sir, I told him to put it on there
but I did sign another one, too
On recross he was unable to say why he did not sign the
card himself When asked on redirect when he had signed
the other card, he testified that he was not sure but
believed it to be after the date of the one in question, May
26, 1965. Don, the janitor , identified by the General
Counsel in his brief as Donald Rarrieck, testified before
Couch did at the call of the General Counsel but there is
nothing in his testimony regarding the Couch card
Rarrieck was not called to the stand a second time On
this record I would eliminate the Couch card
C. Unreliably Identified by Nonexpert Witnesses
Respondent objects to four cards whose signatures were
identified by relatives or other nonexpert witnesses.
1. Norris O. Sanwick (G C. A 89)
Irma Wales testified that she gets correspondence from
Sanwick "continually" and has seen his signature many
times She testified that she recognized the signature on
G.C. A 89 and that it was the signature of Sanwick On
cross she testified that she had not seen the card in
question until a few minutes before she took the witness
stand . She also testified on cross that she was not a
"handwriting expert " but added that she had a sample of
Sanwick' s signature with her "which anyone can see is the
3. Charles W. Shelby (G.C. A 94) and Don Shelby
(G C A 94)
On direct testimony, Charlie A Shelby, testified as
follows
Q Mr Shelby, I show you General Counsel's
Exhibit Number 94 and asked if you recognize the
signature on the bottom of that where the name
"Charles W Shelby" appears9
A Yes sir, that's my son.
Q Did he ever work at John S Barnes?
A Yes sir.
Q. You say that's your son's signature"
A Yes
Q. I show you General Counsel's Exhibit Number 95
and ask you to look at the bottom there where it says
"Don Shelby" Who's signature is that?
A That's my brother's.
Q Did he ever work at John S. Barnes?
A Yes sir.
Q Do you know where Don Shelby is'?
A Not at the present time, no.
Q. Do you know where Charles Shelby is`'
A I certainly don't
On cross-examination Shelby testified that his brother had
lived in Rockford about 10 years, but not with him and
that there had been no occasion during this time for his
brother to correspond with him. Asked upon what
occasions during the previous 10 years he had seen his
brother's signature he couh' cite only one occasion. This
occurred the previous summer when they both had to sign
an insurance report involving a car accident. At that time
he did not "study" his brother's signature but dust looked
"to see if it was there "
The last time he saw his son's signature was about five
or six weeks before the hearing when his son had given
him a check to be cashed. On this occasion, he did not
examine his son's signature but simply looked to see that
he had endorsed the check. He could think of no other
instances where he saw his son's signature
Citing Wigmore, Respondent contends that in the
above four instances the witnesses did not demonstrate
that they had had enough opportunity to observe genuine
specimens of the handwriting in question to be able to
equate it with the card's signature. I agree with the
Respondent only with respect to the card of Don Shelby
(G.C. A 95) It might be argued that the identification of
the card of Charles W Shelby was little better than that
of Don Shelby. However, not only had the witness seen
the signature of Charles W. Shelby much more recently
than that of Don Shelby, he also was the father of Charles
W Shelby. I think the difference is important While the
General Counsel's expert witness agreed generally with the
statement of handwriting expert, Albert S. Osborne, that
opinion testimony of lay witnesses regarding handwriting
generally is "the weakest and most inconclusive
JOHNS BARNES CORP 939
testimony," I believe that there may be a distinction
between the identification of a signature of a person as
distinguished from his handwriting in general I also feel
that generally more weight should be given the
identification by a parent of his child's signature than that
of a brother or a sister
D Not Employed as ofJune 2 1965
there was general talk in the plant to this effect and that
there was no indication that the cards would be used for
the purpose of getting a union in the plant without an
election But nowhere does the evidence show that any of
the signers in question were told that the sole or only
purpose of the cards was to get an election In the absence
of such representation, I find that the foregoing cards'
were valid authorizations'
In my original decision I deleted the cards of Craig
Carlson (G C A 18) and of Gregory Ellison (G C A 32)
on the basis that they were no longer employees as of
June 2, 1965 1 reiterate my findings and conclusions
therein and delete these two cards from the current
computation In addition , I also reject the card of William
Fluaitt (G C A 33) because it appears that he , too, could
no longer be considered an employee as of June 2 1965
In this connection , the evidence shows that on June 2 he
applied for employment with the Admiral Corporation in
Harvard , Illinois, and was hired on that date to begin
working a few days later
E Ambiguous Cards Signed in 1964
Respondent would eliminate seven cards signed in 1964,'
on the grounds that the card language, coupled with the
statements of solicitors that the purpose of signing cards
was to obtain an election, precludes consideration of the
cards as valid designations for the purposes of determining
the Union's claimed majority status " The cards in
question (not the same as used in the 1965 drive)' were
approximately 8 inches long with a fold in the middle and
a return address on the bottom half of the reverse side
The text on the top half of the card read as follows
CONFIDENTIAL AUTHORIZATION CARD
In order that the National Labor Relations Board may
conduct a secret ballot election, one-third of the
employees must sign and return this card If you care
about your conditions, don't delay Sign today
CONFIDENTIAL
The text on the bottom half of the card, which was
followed by space for signature, address, phone, employer,
etc , read as follows
I hereby authorize the International Association of
Machinists to represent me in collective bargaining on
wages and working conditions It is my understanding
that I will be invited to join should the union be elected
to represent me
A composite of the testimony shows that the 1964
signers were told in substance, or understood, that ' the
purpose of signing" cards was to get an election, that
'John L Brown (G C A 11) Harry Gillette (G C A 34) Gerald W
DeVries (G C A 29 ), Albert Ruskavage (G C A 37) Gerald Strait (G C
A 101) Thomas Swinband (G C A 106) and James Wolfram (G C A
118)
'The 1965 cards in heavy block letters across the top began Yes I
want the lAM Beneath that the card read in ordinary text type lettering
as follows
I the undersigned and employee of (Company) hereby
authorize the International Association of Machinists (LAM) to act as
my collective bargaining agent with the company for wages , hours and
working conditions It is my understanding that I will be invited to join
the IAM
F Not Mailed or Submitted to the Union Before
June 2 1965
In my original decision in this matter I refused to
include four cards dated June 2, 1965,' two cards dated
June 4, 1965,' and one card dated June 1, but postmarked
June 3 " The reason that I rejected these cards, as I
indicated in my Decision, was ' because Stubblefield [the
Union organizer] had testified that he received no cards
after he wrote Respondent on June 1, requesting
recognition " Obviously, the cards in question thus were
not identified, even under the rule of the Taitel case, for
receipt in evidence Since this deficiency has been obviated
by the evidence in the remanded hearing, I shall consider
the matter notwithstanding Respondent's contention that
nothing in the record taken at the remand hearing
compels a contrary result " In addition, Respondent
contends that six other cards," all dated June 1, should
not be included in the majority computation on the
grounds that they "were not turned over to the Union
prior to the time its letter demanding recognition had been
received by Respondent '
At the most, the evidence relied upon by Respondent
here was to the effect that some of the signers in question
did not mail or turn in their cards until the day after or
even 2 days after they had signed them In my opinion
Respondent's position is too technical and rigid As stated
in Retail Clerks International Association AFL-CIO 153
NLRB 204, 226 (enfd 336 F 2d 642, 647-648)
There is no requirement in the Act regarding delivery
of cards or any other delivery
* * * * *
Perhaps if there was affirmative evidence that the
card signer immediately tore up the card after he signed
it or engaged in other contemporaneous conduct as to
the card that might raise a question of whether he had
in fact designated or selected the Union, we might feel
obligated to pursue the matter
* * * * *
We are also of the opinion that, in the absence of
affirmative evidence to the contrary, there is a
presumption and an inference that a card signer who
voluntarily signs a designation or authorization card
intends to make a designation and to communicate
timely that fact to the organization designated
'The card of Wolfram (G C A 110) included in the foregoing group will
be separately treated below in another context
'See Winn Dixie Stores Inc and Winn-Dixie Louisville Inc 143
NLRB 848 Cumberland Shoe Corporation 144 NLRB 1268 (as modified
by an unpublished order of the Board dated January 13 1963 and thus
affirmed 351 F 2d 917 (C A 6)) American Cable Systems Inc 161
NLRB No 28 The Shelby Manufacturing Company 155 NLRB 464
'James Alverson (G C A 3) William Cross (G C A 25 ) Joe Morgan
(G C A 70) and Milburn West (G C A 114)
'Lester Kruse (G C A 60) and Mary Schmaling (G C A 90)
"Burl Jones (G C A 52)
"James Hillmer (G C A 45), Harry R Armbruster (G C A 6) Olin
Halle (G C A 39) Mabel McCall (G C A 37) Donna Spencer (G C A
97) and David Kiel (G C A 56)
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is nothing in the record to raise the slightest
presumption or inference in derogation of the designations
here. And a delay in posting or delivering the cards of a
day or two after signing is certainly reasonable and timely
communication." I therefore accept the cards in question
with the exception of the cards of Thomas Kruse (G.C. A
61) and Mary Schmaling (G C. A 90) which were dated
June 4. The card of McCall (G C. A 67) will be treated
separately in another context below.
G No Substantial Evidence to Show They Were
Signed Before June 2
1. Walter Rouber (G.C. A 84)
On direct testimony Reuber (a current employee)
identified his signature on the card but claimed that the
rest of the card had been filled in by someone else. When
asked whose writing the date was, he answered, "I'm not
sure about that writing. No, that' s not mine ." He then
admitted that the address and the telephone number were
in his handwriting, testifying "I know 216 South 1st
Street, the telephone number, Rockford, and all this
[pointing]."" When he was then asked, "But you did not
put a date on the card'?" he answered, "No, I don't
remember whether I did or not." He further testified that
he had no recollection as to when he signed the card, but
that he "mailed it right in" after he signed it.14
A cursory examination of the card would indicate that
Reuber filled out the entire card himself. I do not believe
that there is anything in this testimony that rebuts the
presumption that it was signed on the date it bears.
2. Albert Soetens (G.C. A 99) and Harriet Spencer
(G.C. A 98)
On direct Albert Soetens (a current employee of 11
years' tenure) testified that he read and signed the card,
but that Sam LaSala filled in the rest of it at his request
and in his presence. He also testified that he had no idea
when the card was signed.
Spencer testified that she read her card and signed it
but that she did not know who dated it or when she had
signed it. The dates on both of the above cards
("5-29-65") are written in different colored ink than the
writing on the rest of the cards. The two dates also appear
to me to have been written by the same person. I also
agree with Respondent's statement that "a visual
inspection of the card [Spencer's] suggests that it was
dated by someone else." Clearly, the presumption that the
cards were signed on the date they bear is rebutted by this
evidence Accordingly, I reject these two cards.
3 Darwin Peterson (G.C. A 79)
The identification of Peterson's card by his father
(which is dated June 1, 1965), apparently is not attacked
by Respondent . 16 However , the the father's testimony was
that Peterson did not go to work for Respondent until
after he had graduated from high school in 1965. Since
"Apart from normal procrastination, it is obvious that seldom would a
signer who took a card home with him or who wanted the opportunity to
consider it in private, be in a position to immediately mail it or transmit it
to the proper recipient
"Just what additional portion of the writing he pointed to was not
reflected in the record
"this card does not bear a postmark, so obviously was turned in by
means other than by mailing
there is no showing what the date of that graduation was,
there is nothing to rebut the presumption that the card
was signed on the date it bears.
4. Jack Huckabee (G.C. A 50)
Sam Huckabee identified his own card (G.C. A 49)
which he signed on May 20, 1965. He also testified that
he recognized the signature on G.C. A 50 as that of his
son, Jack Huckabee, and that the rest of the writing on
the card was his son's. The date on G.C. A 50 is "5-27"
with no year indicated. The reverse side of the card shows
that it was received by the Board at 12:18 p m., 1965. 1
find this card to have been a valid authorization.
H. Authorizations Obtained by Misrepresentations
There is no doubt, as contended by Respondent, that
the thrust of the Union's campaign was centered on the
idea that there was going to be another election and that
employees were told when their authorizations were
solicited that the purpose of the cards was to obtain
enough so as to be able to get an election. It is also true
that there is no evidence to show that anyone was told
that the cards would be used to get union representation
into the plant without an election. Nevertheless, it is also
clear that, with the possible exception of one individual,16
no one was told that the sole or only purpose of the cards
was to get an election. Cumberland Shoe Corporation,
supra
Moreover, it would appear that, while the signers may
have felt or understood that an election would be held,
they viewed this merely as a necessary step toward
bringing the Union into the plant and actually they signed
the authorization cards because they wanted the Union to
represent them, even if they also believed that an election
would be necessary to obtain recognition and bargaining.
This was revealed repeatedly on cross-examination when
Respondent's Counsel on the basis of an offer of proof"
would ask the witness what his understanding was of the
purpose of the cards and would get the answer that the
purpose of the cards was to get the Union into the plant.
Counsel would then ask the witness how this was to be
accomplished and would generally get the answer that it
"Received in evidence were several envelopes in which Peterson had sent
letters to his parents from Vietnam containing his name written out in the
return address . Also in evidence was an application signed by Peterson for
an apprenticeship in a union . "A visual inspection " of these signatures
indicates that they are the same as the signature on G C. A 79
''Irma Paulson (G C A 78) testified that she got the card from a
Dorothy DeGarmo who was acting as a union steward and that she
"definitely" read it before she signed it. DeGarmo made no mention of an
election when she gave Paulson the card but there "was . talk" that the
Union would get into the plant "by a vote only." When Paulson was asked
to "describe . the circumstances surrounding the signing of (her ) card,"
she began to voice grievances involving pay inequities and increases She
was then asked if she was given any information about the card before she
signed it and she testified "Oh, yes, some I didn't need too much " She
then explained , " I know what union means and I felt it would be more
equal and more fair, there 'd be more fairness in the shop for everyone,
including myself ." When asked what her understanding was of the effect of
signing the card , she answered , "Well, there were hopes of getting a union
in " It also appears that Paulson attended union meetings before she
signed Clearly, Paulson was not mislead or coerced into signing for any
reason other than the unambiguous one stated on the card itself
"At the outset of the hearing , I had ruled that I would take no
testimony as to what the signers believed to be the purpose of the cards
However, I permitted Counsel to ask such questions as an offer of proof I
hereby reverse my rejection of the testimony so offered and consider it
JOHNS BARNES CORP 941
would be accomplished by an election 11
Contrary to Respondent, I conclude and find that this
evidence is not sufficient to vitiate the clear and
unambiguous language on the cards authorizing the Union
'to act as collective bargaining agent with the
Company for wages, hours and working conditions
I Miscellaneous
I Perley Kennedy (G C A 53)
Kennedy got his card at a union meeting and had a
fellow employee fill it out for him and date it The card
was not read to him and he is unable to read When asked
on direct if anyone had told him "what this card was for
or did you know9" he answered, "Yeah, to get a union
On cross-examination he testified as follows
Q Where did you get the card you signed in 1965'
A I got it at the union hall
Q Was this in connection with a union meetmg7
A Yes, in '65 it was
Q At this meeting were union cards discussed'
A Yeah
Q What was said about cards9
A Well, to get the majority of the employees to get
a union in
Q And how would you get the union in9
A By getting a majority
Q Then what would occur`'
A Well, they'd set up an election
Q Was that discussed at the meeting9
A Yeah
Kennedy also signed a card in 1964 and voted in the
1964 election In 1964 Union Representative Stubblefield
had read the card to him
In 1965 after he signed his card, he gave his son a card
at home to sign This the son did in his presence after
reading the card "outloud ' Kennedy left it up to his son
to sign, telling him, 'He could suit himself about voting
for the Union " The son signed because he wanted to
vote for the Union " On this evidence I find that
Kennedy's designation was a valid authorization to the
Union
2 Randall Carlson (G C A 20)
Carlson (a current employee) read his card before he
signed it About his signing he testified on cross as
follows
the way I understood it, they only needed about
three or five more cards, is what I heard, to have, I'm
not sure about just how many cards but they needed so
many cards to have an election If they got a majority
or something, I don't remember all the details So, I
signed a card and gave it back to them
This was not the first time they had asked him to sign,
' they'd been after [him], many people throughout the
together with the other evidence
"Examples of such testimony
Dale G Axelson To get a union representation in there and vote
Gladys Ryder To get the Union in
Donna Spencer That it would help to get the Union if there was a
majority of the cards signed
John Jackson To get a union in
Robert Lace to try to get a union in the shop
Jack Hanson It was for the Union sign it for the Union
Walter Reuber to get a union in the shop
Edwin Laques , To get union representation at the shop
shop" for several months When asked why he finally
signed, he testified, 'Well, it was going to be a secret
ballot, anyway, nobody was going to know and they
needed so many now, that's the way I understood it They
only needed so many cards" He was then asked, ' Mr
Carlson, would it be fair to say you signed a card to get
these people off your back"" and he answered, "Yeah, I'd
say so, to some degree " On this evidence I find that
Carlson's authorization was a valid one
3 Mabel McCall (G C A 67)
Dorothy DeGarmo testified that McCall had asked her
for a card saying she would like to sign it and also
borrowed DeGarmo's pen for that purpose This occurred
at the foot of the stairs as you go up to the restrooms "
In the restroom, according to DeGarmo, she saw McCall
sign the card although McCall did not know that
DeGarmo was watching About 20 minutes later, McCall
returned the signed card to DeGarmo
Although served with a subpena, McCall refused to
appear on behalf of the General Counsel, but was called
as a witness by Respondent being the only employee to
testify on behalf of Respondent in the hearing McCall
identified her signature on the card and testified that she
thought "the date [June 1, 1965] is correct "19 However,
she denied getting the card from DeGarmo or returning it
to her According to her testimony, McCall received the
card at her home from a man and woman who called on
her late one afternoon after work After thinking it over
for sometime, she finally signed the card Then 3 or 4
months later she mailed the card to the Union From her
further testimony it appears that it was before the election
that the man and woman had called on her and left the
card with her It thus appears that McCall signed a card
in the 1964 campaign Although she claimed to have
signed only one card for the Union, it is apparent that at
best McCall was mistaken in her testimony Accordingly,
I credit DeGarmo's version and find that McCall's card
was a valid authorization to the Union
4 James Wolfram (G C A 118)
Wolfram signed one of the 1964 cards It is dated
2-28-64 ' On examination he testified as to his signing it
and dating it He also testified that he read the card
before he signed it
On cross-examination Wolfram testified as follows that
he had no independent memory of when it was
signed ' , that he did not know who signed as witness,
that he could not recall what he did with the card after he
signed it , that he did not recall giving it to anyone after he
signed it At the suggestion of counsel , he agreed that it
was possible that he ' threw the card away" after he
signed it He also conjectured that he "may have laid it on
the bench or tool box " When asked if it was his
intention to turn the card over to the Union when he
signed it, his answer was, "I don 't recall what it was " He
also testified that on the same day that he signed the card
he noticed ' that it had disappeared " He thereupon
asked the fellows around" what had happened to it, but
on one seemed to know
On this evidence I find that Wolfram 's card was a valid
authorization
"The date was written 6/1/65 The I apparently had been marked
over another number which appears to have been a 2 McCall could not
recall having marked over the date
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. "Secondary " Evidence
As indicated in the statement of the case , supra,
Respondent refused to comply with the subpoena duces
tecum to produce certain documents from its records
which contained the signatures of purported card -signers.
As a result , instead of going through the enforcement
procedure in the courts with its time -consuming process,
the General Counsel offered certain "secondary" evidence
to take the place of the evidence that Respondent refused
to produce . 20 This evidence was received by me on the
assumption that it was all to be used as a basis for
testimony by an expert witness comparing the signatures
thereon with the signatures on certain of the authorization
cards for his expert opinion as to whether the signatures
on the cards were written by the same persons whose
signatures appear on the secondary evidence . As will be
shown , the General Counsel saw fit to do this with only a
few of the cards involving this secondary evidence. Why
he did not do this with all of the cards I cannot
understand. In any event , before we go into that in more
detail , let us examine the secondary evidence in question
and how it was obtained.
On September 16, 1965 , David C . Coleman (an
attorney in Region 13 at the time ), in preparation for
hearing of this case, wrote to the last known addresses of
the card - signers in part as follows:"
I have in my possession the original cards which
were obtained by the Union, most of which were
presented to my office in May 1964 and June 1965.
One of these cards bears your signature . In order to
determine if in fact this card was signed by you, I have
made a copy of this card which I am enclosing.
I wish that you would examine this copy of the card
and indicate on the back of it whether or not you
signed the original of it.22
Please then sign this copy and return it to me in the
enclosed self-addressed envelope immediately. No
stamp is necessary.
At least six individuals replied to this inquiry returning
the forms sent out by Coleman , signing them and
indicating that they had signed the cards in question. The
names appearing on these six documents (which were
received in evidence ) and the exhibit numbers of the
corresponding cards in question were Henry Haire (G.C.
A 37), Jerry Hall (G.C . A 38), Alvin Aebly (G.C. A 2),
Thomas Staples (G.C. A 100), Arthus Wemmer (G.C. A
113), and Bernard L . White (G.C. AI15).
"See Bannon Mills, Inc, 146 NLRB 611, 633.
"On September 21, 1966 ( about a month prior to the Board's remand of
this case to me), Coleman again wrote to the purported card-signers
referring to the hearing that I had previously held in this matter and my
ruling that the Union represented a majority of the employees His letter
also stated that he had in his "possession the original cards which were
obtained by the Union , one of which bears your signature," and asked the
addressees to furnish their current addresses and telephone numbers. For
this purpose a form was enclosed which provided a place for their
signatures . On September 29, Respondent's counsel wrote to the Regional
Director asking the reason for these inquiries and protesting the references
therein to "signatures " on the cards. On October 13, the Regional Director
replied in part that the inquiries were "sent solely for the purpose of
keeping a current list of addresses of those employees , and not for the
purpose of authenticating signatures appearing on the cards "
"The back of the card read as follows:
DID YOU SIGN THE ORIGINAL OF THE CARD
REPRODUCED ON THE OTHER SIDE THEREOF"
In addition to the foregoing, Attorney Coleman
identified a statement dated October 13, 1965, that he
took from Abner Wise in preparation for the original
hearing . In the statement Wise indicated that he had
signed an authorization card (G.C. A 1 I ). In his testimony
Coleman was unable to say whether or not Wise was
sworn when he signed the statement.
Robert L. McCabe, a field examiner for the Board,
identified a statement he took on October 26, 1965, from
Albert Lee Chandler. In his statement Chandler indicated
that he too had signed an authorization card (G.C. A 21),
Like Coleman, McCabe saw the statement signed, but he
was definite in his testimony that he had not put Chandler
under oath.
The custodian of personnel records for the shoe
department of the Charles Weiss Store in Rockford, Mrs.
Carroll Rowe, identified from her records an
application-for-employment form dated October 25, 1965,
signed by a Donald Vanderhaven. On the form was listed
a telephone number "962-5287."22 Mrs. Rowe testified
that she did not see the form being filled out and that she
did not "know anything at all about the signature on the
[form] other than that it appears there." The two above
statements and the job application form were all received
in evidence.
An affadavit dated April 5, 1967, signed by a Henry M.
Haire under the jurat and seal of a Florida notary public
was received in evidence citing the fact that the affiant
had signed an authorization card on May 27, 1965, while
employed by Respondent Company and that at the time
the card was signed the affiant was living at 1526 Willard
Avenue, Rockford, Illinois . A covering letter of the same
day addressed to the General Counsel was also received in
evidence as follows:
Edward Maslanka
National Labor Relations Board
U.S. Post Office and Federal Building
219 South Dearborn
Chicago, Illinois 60602
Dear Sir:
Presently I am attending Florida State University
working on my Master of Science degree. Since it
would have been a severe inconvenience to attend the
hearing Tuesday, April 11, I am sending this affidavit
in hopes that it will supply all the information
necessary. If any other information is desired, you can
reach me at 599-3392 or 224-9472.
Sincerely,
/s/ Henry M. Haire
Henry M. Haire
Also received in evidence was the envelope in which the
two foregoing documents were mailed to the General
Counsel showing the sender as Henry M. Haire, Box
6023, Tallahassee, Florida 32306
An affidavit dated April 5, 1967, signed by a James
Richard Beck under the jurat and seal of a Tulsa,
Oklahoma, notary public was also received in evidence
reciting the fact that the signer had worked for
Respondent from March to August 1965, and had signed
a union authorization card on or about May 29. A
covering letter of the same date addressed to the General
Counsel was received in evidence as follows:
Yes...... No. .
Signed . ...... "This was the telephone number on G.C A 110, signed by Vanderhaven
JOHN S. BARNES CORP. 943
April 5, 1967 least for the fact that they contained the signatures of
Christ the Redeamer Wise and Chandler.24 The signatures on these two
Tulsa, Oklahoma statements were the basis upon which an expert witness
Mr. Edward Maslanka
c/o N.L.R.B.
U.S. Courthouse and Federal Building
219 South Dearborn
Chicago
Illinois, 60602
Dear Sir:
Following the suggestion offered by you on the
telephone this morning, I have written and hereby am
inclosing the suggested affidavit.
Sincerely yours,
/s/ James Richard Beck
James Richard Beck
Also received in evidence was the envelope in which the
two foregoing documents were mailed to the General
Counsel showing the sender as James Richard Beck, 4734
South Columbia Place, Tulsa, Oklahoma.
Another affidavit dated April 6, 1966, signed in three
places by an Elmer C. Walker under the jurat of a J. R.
King, a Board field examiner from St. Louis, Missouri,
was received in evidence. This statement also recited that
the affiant had been an employee of Respondent Company
from 1962 or 1963 until November 1965; that he had
signed an authorization card and that at the time he
signed the card he was residing at 2313 Rockwell Street,
Rockford. In addition to the affidavit the following note
signed by an Elmer C. Walker was received:
I enclose here with a sworn statement which I gave
to Mr. J. R. King. I would appreciate receiving a copy
of this statement at your convenience.
/s/ Elmer C. Walker
4/6/1967
Elmer C. Walker
222 Donald
Cahokia, Illinois
Also received in evidence was an office memorandum
from Jerard P. Fleischut, Acting Director of Region 14
addressed to the General Counsel dated April 7, 1967, as
follows:
Pursuant to your telephone request of April 5, 1
enclose herewith the original and three copies of the
sworn statement of Elmer C. Walker.
Walker was interviewed on the job during working
hours and a notary public was not available. However
the affidavit and the attachment thereto were handled
in such a manner as to provide you with four signatures
of Mr. Walker witnessed by our Board agent . Please
note that Walker requests that you send him a copy of
his statement.
Notwithstanding the objections of Respondent to all of
the foregoing exhibits, I received them in evidence.
Clearly, the statements of Wise and Chandler were
sufficiently identified for such receipt if not for the
purpose of proving the truth of the contents therein at
testified that they were written by the same persons who
signed the cards of Wise (G.C. A 116) and Chandler
(G C A 21). On the basis of this evidence , I find that
these two cards were valid authorizations.
I also find that the employment application of Donald
Vanderhaven as well as the replies of Haire, Hall, Aebly,
Staples, Wemmer, and White to Attorney Coleman's 1965
inquiry were all receivable as records obtained and kept in
the normal course of business and at least are adequate
secondary evidence of the signatures of the persons they
purport to be. With respect to the card of Donald
Vanderhaven (G.C A 110), the expert testified that the
signatures on that card and the application form were
written by the same person . On this evidence I find that
the Vanderhaven card was a valid authorization.
As indicated previously for some reason (apparently
because he felt that the statements on the replies to the
1965 Coleman inquiries were proof in and of themselves
of the validity of the cards of Haire, Hall, Aebly, Staples,
Wemmer , and White), the General Counsel did not seek
the opinion of the expert as to whether or not the cards
and the statements were signed by the same persons.
While I am aware of the fact that a layman ' s comparison
and opinion in such a matter may not be as reliable as an
expert 's, it is clear that such a comparison and opinion is
permissable . See Heck 's Inc , 166 NLRB No . 32, footnote
1. Accordingly, having made such a comparison and,
being strongly of the opinion that any impartial person
would agree with me that the corresponding cards and
statements were written by the same persons, I find that
the six cards in question were all valid authorizations.
At this point , whether or not the affidavits of Beck and
Walker can be used in the same way as the six statements
above2S is unnecessary to decide since even if I reject the
cards of these two there still would be a majority of valid
authorizations.
Thus, on the foregoing evidence , I have in effect
rejected 14 of the 119 cards.36 To the remaining 105 I
shall add the cards of Kruse and Schmaling which they
signed in 1964 (G .C.'s 24 and 25, respectively). This
makes a total of 107 cards that I find to have been valid
authorizations as of June 2, 1965, by employees in the
bargaining unit to the Union to represent them as their
collective-bargaining agent. Since there were 202
employees in the bargaining unit on June 2, 1965, it is
clear that, as of that date, the Union represented a
majority of the employees in the unit and I so find.
Accordingly , I stand on the conclusions of law and
recommendations I made in my original Decision in this
matter and incorporate them herein by reference.
"Whether they were under oath when they signed the statements I
believe is immaterial.
"The affidavit of Haire is of course superfluous since his signature is
contained on one of the replies to the 1965 signing
"The rejections (exclusive of the cards of Beck (G.C. A 10) and Walker
(G.C. A 112)) are the cards of Mullen (G C. A 72), Taylor (G.C. A 109),
Wolf (G.C A 117), Couch (G C. A 23), Don Shelby (G C A 95 ), Carlson
(G.C. A 18), Ellison (G.C. A 32), Fluiatt (G C A 33), Soetens (G.C. A
99), Spencer (G.C A 98), Kruse (G.C. A 61), Schmaling (G C A 90)