Lenz Co.

National Labor Relations Board - Board Decisions

Jul 13, 1965

153 N.L.R.B. 1399 (N.L.R.B. 1965)

LENZ COMPANY 1399
WE WILL, upon application, reinstate our striking employees 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 resulting
from a failure to reinstate.
METLOX MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any ques-
tion concerning this notice or compliance with its provisions.
Lenz Company and International Union of Electrical Radio and
Machine Workers , AFL-CIO, Local No. 768.1 Case No. 9-CA-
3194. July 13,1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the General Counsel filed
limited exceptions to the Trial Examiner's Decision and a brief in
support thereof. The Respondent and Charging Party thereupon
filed cross-exceptions to the Trial Examiner's Decision and answering
briefs.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and fuids that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and cross-exceptions and briefs,
and the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner only to the
extent consistent herewith.
i Hereinafter called the Union.
153 NLRB No. 120.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with the Trial Examiner, for the reasons set forth by
him, that Respondent violated Section 8 (a) (1) of the Act when
Yantis, in notifying employees Pugh, Gambrel, Thacker, and Walters
of their terminations, told them there had been a big blowup because
of a letter received from the Union.2
2. The Trial Examiner found, on the basis of the pleadings, that
Respondent unlawfully discharged Pugh, Gambrel, Thacker, and
Walters in violation of Section 8(a) (3) and (1) of the Act. As the
Respondent's answer admits and the record indicates that these
employees were laid off and that their layoffs were accelerated by the
advent of the Union, we find that the above-named employees were laid
off, rather than discharged, in violation of Section 8(a) (3) and (1)
of the Act.
3. As fully set forth in his Decision, the Trial Examiner concluded
that the facts relating to Johnson's discharge support an inference
that the discharge was for cause rather than unlawful. We disagree.8
Based upon the facts cited by the Trial Examiner, we find that the dis-
charge was motivated by Johnson's union activities and that the rag
throwing and the crane incidents, the latter having occurred some 6
months earlier, were seized upon by the Respondent as a pretext for
the discharge.
As pointed out by the Trial Examiner, the Respondent was aware of
the union activities in its plant on May 12, 1964, when it admittedly
laid off three employees because of these activities. Johnson, who was
the most active union adherent, was discharged on May 13, 1964, on
which day Walters also was admittedly laid off because of his union
activities. In view of the Respondent's general knowledge of union
activities in the plant; the timing of Johnson's discharge the day after
the union activities became known to the Respondent and in the con-
text of the admittedly illegal layoffs; the fact that the Respondent
appeared to have condoned Johnson's "horseplay" for some 2 years
prior to the advent of the Union; and its reliance upon a relatively
minor incident to justify Johnson's discharge, 4 the conclusion is ines-
2 The Respondent contends that this finding is inconsistent with the Trial Examiner's
subsequent finding that on May 12, 1964, a demand for recognition was received but not
accepted . We find no merit in this contention , as the 8(a) (1) finding does not depend
upon the truth of Yantis ' statement , but rests only on the fact that it was uttered The
Trial Examiner 's finding , contrary to Yantis ' denial, that Yantis made the statement
attributed to him , is based upon the credited testimony of Pugh , Johnson, and Walters.
It Is the Board 's established policy not to overrule a Trial Examiner's resolutions as to
credibility unless the clear preponderance of all the relevant evidence convinces us that
they are incorrect Such a conclusion is not warranted here . Standard Dry Wall
Products , 91 NLRB 544 , 545, enfd 188 F. 2d 362 (C.A. 3)
3 Member Fanning would affirm the Trial Examiner's dismissal as to Johnson for the
reasons stated in his Decision.
4 In finding that the Respondent had knowledge of Johnson 's union activities , Member
Brown would also rely on the small size and compact nature of the Respondent 's plant.
Roberto Alvara Manufacturing, Inc., and Roberto Alvara, Inc , 141 NLRB 669, 676;
W. Ralston & Co, Inc. and Technical Tape Corporation , 142 NLRB 1124.
LENZ COMPANY 1401
capable that the Respondent had knowledge or suspicion of Johnson's
participation in the union activities and discharged him for that rea-
son. Accordingly, the discharge violated Section 8(a) (3) and (1)
of the Act.
4. The Trial Examiner found that the Respondent did not violate
Section 8(a) (5) of the Act. We find merit in the General Counsel's
exceptions to this finding. In his consideration of the complaint's
8(a) (5) allegation, the Trial Examiner committed fundamental error
in not adhering to Board precedent. As the Board has stated more
than once:
[I]t remains the Trial Examiner's duty to apply established
Board precedent which the Board or the Supreme Court has not
reversed. Only by such recognition of the legal authority of
Board precedent, will a uniform and orderly administration of a
national act, such as the National Labor Relations Act, be
achieved.5
Accordingly, we shall consider the issues herein on the basis of appli-
cable Board precedent.
At the time the Union demanded recognition on June 23, 1964,6 it
had received authorization cards from 14 of the 26 employees then in
the appropriate bargaining unit set forth in the Trial Examiner's
Decision. The Trial Examiner erred in finding that the authorization
cards, because they encompassed two purposes, were fraudulently
obtained and hence were unreliable for the purpose of designating the
Union as bargaining representative of the employees? The cards, on
their face, revealed that they were for the dual purposes of (a) peti-
tioning the Board for an election, and (b) authorizing the Union to
represent the employees as their collective-bargaining agent. The
IIssurance Agents' International Union, AFL-CIO (The Prudential Insurance Com-
pany of America), 119 NLRB 768 , 773, reversed on other grounds , 361 U.S 477 Iowa Beef
Packers, Inc , 144 NLRB 615 , 616, and footnote 2; Local 173 , International Molders and
Foundry Workers Union of North America, AFL-CIO (Hubley Manufacturing Company),
121 NLRB 170 , 174; Local 1426, International Longshoremen's Association , AFL-CIO
( Heide and Company, Inc . and Wilmington Shipping Company ), 128 NLRB 198, 205.
The Trial Examiner found that the Union 's demand for recognition and bargaining
was made on May 12, 1964 We find merit in the Respondent ' s exception to this finding.
The record indicates that on May 12 the Respondent received a notice from the post
office advising that an attempt had been made to deliver a registered letter, and that the
letter was returned to the post office. This notice did not identify the sender. Thus,
there was no actual demand for recognition and bargaining until June 23, 1964, when
the Union 's telegraphic demand was received by the Respondent . This demand was never
acknowledged or answered.
'r We note with particular concern the Trial Examiner 's misstatement of the Board's
findings in Gorbea , Perez & Morell, S. en C, 142 NLRB 475. In that case ( which, in any
event, is entirely inapposite on its facts), at pages 477 and 478, the Board , contrary to the
Trial Examiner 's statement , found that the Union had acted in good faith in obtaining
the employee authorization cards , and that the cards constituted valid and uncoerced
designations of the Union as bargaining agent of the employees.
We disapprove of the injudicious remarks of the Trial Examiner and consider his
gratuitous comments concerning the nature of the authorization cards here involved
improper.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board has never held a card per se unreliable because it was sought for
two purposes. To the contrary, the Board, with court approval,
recently relied on cards identical to those herein, which are reproduced
in Appendix B of the Trial Examiner's Decision, as valid designations
of the union as bargaining representative of the employees.8
Similarly, we do not find that the cards reproduced in Appendix A
of the Trial Examiner's Decision were misleading because they errone-
ously stated that the employee was a salaried, rather than an hourly,
employee and that an election would entitle the employee to become a
member of the Professional, Technical and Salaried Conference Board.
These cards, like the others, on their face specifically authorized the
Union to represent the employees.8 There is no evidence in the record
that the cards were obtained from employees by coercion or any other
conduct which might cast doubt on their validity. Accordingly, we
find that a majority of the employees authorized the Union to repre-
sent them as their collective-bargaining agent, and the Union was the
majority representative when it sought and was denied recognition.
In view of this, we further find that the Respondent's refusal to bar-
gain with the Union on and after June 23, 1964, violated Section 8 (a)
(5) and (1) of the Act.
ORDER10
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Lenz Company, Dayton, Ohio, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Leading its employees to believe that they are being laid off
because of a letter from the Union.
(b) Discouraging membership in International Union of Electrical,
Radio and Machine Workers, AFL-CIO, Local No. 768, or any other
labor organization, by discharging or laying off any employee, or in
any other manner discriminating against any employee with regard
to his hire, tenure of employment, or any other term or condition of
employment.
(c) Refusing, upon request, to recognize and bargain collectively
with International Union of Electrical, Radio and Machine Workers,
AFL-CIO, Local No. 768, as the exclusive representative of its employ-
ees in the appropriate unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment. The
appropriate unit is:
s International Union of Electrical Radio and Machine Workers , AFL-CIO (S N.C.
Manufacturing Co , Inc.), 147 NLRB 809, enfd 352 F. 2d 361 (C A D C, May 13, 1965).
9 Winn-Dixie Stores, Inc. and Winn-Dixie Louisville, Inc., 143 NLRB 848, eufd. 341 F.
2d 750 (C A. 6).
10 As the unfair labor practices committed by the Respondent are of a character striking
at the root of employee rights , safeguarded by Section 7 of the Act, we shall issue a
broad cease -and-desist order.
LENZ COMPANY 1403
All production and maintenance employees of the Respondent at its
plant at 3301 Klepinger Road, Dayton, Ohio, including truckdrivers
and shipping clerks, excluding office clerical employees, and all guards,
professional employees, and supervisors as defined in the Act.
(d) 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 labor organiza-
tion, or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in other concerted
activities for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to James Johnson immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Make James Johnson, Vincent Pugh, Carl Gambrel, Glen
Thacker, and William Walters whole f or any loss of earnings they
may have suffered by reason of the discrimination practiced against
them in the manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy."
(c) Upon request, bargain collectively with International Union of
Electrical, Radio and Machine Workers, AFL-CIO, Local No. 768, as
the exclusive bargaining representative of all employees in the afore-
said appropriate unit, with respect to rates of pay, hours of employ-
ment, and other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Post at its plant in Dayton, Ohio, copies of the attached notice
marked "Appendix." it Copies of said notice, to be furnished by the
Regional Director for Region 9, shall, after being duly signed by the
Company's representative, be posted by the Company immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered, defaced, or
covered by any other material.
n In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for Region 9, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT lead our employees to believe that they are being
laid off because of a letter from the Union.
WE WILL NOT discourage membership in International Union of
Electrical, Radio and Machine Workers, AFL-CIO, Local No.
768, or any other labor organization, by discharging or laying off
any employee, or in any other manner discriminating against any
employee with regard to his hire, tenure of employment, or any
other term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
above-named labor organization, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, to engage in other concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7 of the Act, or
to refrain from any and all such activities.
WE WILL offer to James Johnson immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of earnings suffered by reason of the dis-
crimination against him.
WE WILL make Vincent Pugh, Carl Gambrel, Glen Thacker, and
William Walters whole for any loss of earnings they may have
suffered by reason of the discrimination practiced against them.
WE WILL, upon request, bargain collectively with International
Union of Electrical, Radio and Machine Workers, AFL-CIO,
Local No. 768, as the exclusive bargaining representative of all our
production and maintenance employees in the unit described
below, with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agree-
ment. The appropriate bargaining unit is :
All production and maintenance employees of the Respond-
ent at its plant at 3301 Klepinger Road, Dayton, Ohio, includ-
LENZ COMPANY 1405
ing truckdrivers and shipping clerks, excluding office clerical
employees, and all guards, professional employees, and super-
visors as defined in the Act.
All of our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization, except as
that right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act, as amended.
LENZ COMPANY,
Employer.
Dated---------------- By------------------ -------------------
(Representative) (Title)
NoTE.-T\re will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full rein-
statement 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.
Employees may communicate directly with the Board's Regional
Office, Room 2023, Federal Office Building, 550 Main Street, Cincin-
nati, Ohio, Telephone No. 381-2200, if they have any question concern-
ing this notice or compliance with its provisions.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed May 15, an amended charge filed May 22, and a second
amended charge filed June 29, 1964, by International Union of Electrical Radio and
Machine Workers , AFL-CIO, Local No. 768, herein called Local 768 or the Union,
against Lenz Company, herein called Lenz or the Respondent , the General Counsel
issued a complaint alleging Respondent violated Section 8(a)(1), (3 ), and (5) of
the Act.
The answer of the Respondent admitted that the discharges of four dischargees
alleged in the complaint to have been discharged for discriminatory reasons were
accelerated because Respondent 's president learned of union activity in the plant;
admitted the receipt of a demand for recognition and the failure to reply thereto but
alleged Respondent had a good-faith doubt of the Union 's majority status ; and denied
the commission of other unfair labor practices.
This proceeding , with all parties represented, was heard by Trial Examiner John F.
Funke at Dayton, Ohio, on October 13 and 14, 1964. At the conclusion of the hear-
ing the parties were given leave to file briefs and a brief was received from the
Respondent on December 18.
Upon the entire record in this case , and from my observation of the witnesses,
I make the following.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The answer admits and I find that Respondent is engaged in commerce within the
meaning of the Act and that Local 768 is a labor organization.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Violations of Section (8)(1)
Paragraph 5 of the complaint alleges that on or about May 12, 1964, Respondent
told certain employees they had been laid off because the Respondent had received
a letter from the Union on that day.
I accept and credit the testimony of Johnson and Pugh that at the time Foreman
Paul Yantis notified Pugh and the other employees of their discharge on May 12
he told them there had been a big blowup because of a letter received from the Union.
I also accept and credit the testimony of Walters that he was given the same reason
on May 13 when he was notified of his discharge by Yantis.
I find these statements to be in violation of Section 8 (a) (1) of the Act. It neces-
sarily restrains and coerces employees in the exercise of their rights under Section 7
of the Act to be told that they are being discharged because their employer has
received a letter from a labor organization and that the letter (whether it has been
read by him or not) has indicated to him that union activity is taking place in his
plant.
B. Alleged violations of Section 8(a)(3)
The complaint alleges that five employees, Vincent Pugh, Carl Gambrel, Glen
Thacker, William Walters, and James Johnson were discharged on either May 12
or 13 because of their membership in and activity on behalf of Local 768. The
answer admits the discharges of Pugh, Gambrel, Thacker, and Walters were discrimi-
natively motivated so that only the discharge of Johnson is at issue.
Johnson testified that he worked at Lenz since February 1962, that he started as
an assembler and later worked on the automatic chucker machine. On or about
May 4, 1964, Johnson went to the union hall and talked to L. W. Wornstaff, president
of Local 768, who told him the employees would need a majority in the plant to get
the Union in and gave him authorization cards to be signed by the employees. John-
son and others distributed the cards to employees "we thought we could trust" and
on May 6 Johnson delivered 13 cards to the union hall. (On May 8 he delivered
another card to the hall.) Johnson testified that Pugh and Gambrel were discharged
at 5 p.m. on May 12 (the usual quitting time was 5:30) and that he was discharged
on May 13 at 12 noon About 10:30 that morning he had a conversation with Paul
Yantis, his foreman and an admitted supervisor, in which he told Yantis to add
another dependent to his tax exemption list. Yantis told him it was no use, that
"they" were going to let him go. He asked why and Yantis told him that John [Lenz]
said he was always "screwing around" and that every time they put him with somebody
he "screwed them up." Johnson denied this and asked when his discharge would take
place and was told, "Today, tomorrow, or you can finish the week out, whatever you
want to do." Johnson knew that Pugh and the others discharged on the preceding
day were going to the union hall that afternoon and he decided to leave at noon and
go with them. He informed Yantis of this decision and was told he could sign for
unemployment and get it faster if he quit immediately.
John Lenz, general manager of the Respondent, testified that he had been friendly
with Johnson and had, at Johnson's request, transferred him to the automatic chucker
machines where he "would work half a day and loaf half a day." Johnson could not
learn to read a micrometer (a fact admitted by Johnson) so, again at Johnson's
request, he was transferred back to assembly work. According to Lenz, Johnson con-
tinuously engaged in horseplay and at one time he told Johnson that he would person-
ally ring his (Johnson's) card for him? Asked to be more specific Lenz stated that
Johnson always wanted to take his work to someone else's table and "sit on some-
one's lap" like "a lady's sewing table." Anytime there would be two or three people
not working Johnson would be one of them. Lenz testified that the reason for the
discharge occurred on May 13 when Lenz saw Johnson throw a dirty rag (which
could contain chips) at an employee about five tables removed Lenz reported this
to Yantis and Yantis then reported an incident which had taken place about 6 months
earlier involving Johnson Yantis reported to Lenz that another employee, William
E. Folkerth, had reported to him that Johnson had been operating the crane in the
steelroom to place a box of hydraulic tubing and another employee, Walters, was on
top of the box. Johnson was swinging the box back and forth, in effect giving Walters
a ride about the room. When Yantis reported this to Lenz, Lenz decided to discharge
Johnson. (The incident was the subject of direct testimony by Folkerth.)
'Admitted by Johnson.
LENZ COMPANY 1407
Yantis testified in general that Johnson did too much talking and engaged in horse-
play on the job. He corroborated Lenz' testimony that Lenz at one time told Johnson
he would personally ring his card and that on another occasion an assistant foreman
named Tibbs sent Johnson and another employee home because of an argument
(which had threatened to develop into a fight) on the job. The cause of the argu-
ment was a bag of potato chips belonging to another employee which Johnson had
taken and eaten.
While the issue is not free from doubt, I believe the facts which support an infer-
ence of discharge for cause slightly outweigh those which would lead to the conclu-
sion that the discharge was unlawful. The record indicates that Johnson was neither
a model employee, a hardworking employee, nor a particularly skillful employee.
He was not discharged at the same time or in the same circumstances as the other
employees. It is true that he was discharged the day after he visited the union hall
with Pugh who was admittedly discharged because Lenz had learned of union activ-
ity and this creates suspicion. On the other hand I credit Lenz's testimony that he
saw Johnson throw a dirty rag at another employee and that when he reported this
to Yantis he was informed of the crane incident. It is true that the fact that union
activity had just been made known may have given these incidents an impact which
they would not have otherwise possessed and they may have been eagerly seized upon
to justify another discharge. Under the circumstances of the case, however, I find
that such a finding would rest more on speculation than on reasonable inference.
I do not find that the General Counsel has sustained his burden of proof that John-
son was discharged in violation of Section 8(a)(3). Based on the pleadings, I find
that the discharges of Pugh, Gambrel, Thacker, and Walters did violate that section.
C. Alleged violations of Section 8(a)(5)
The complaint alleges and I agree that an appropriate unit includes:
All production and maintenance employees of the Respondent at its plant at 3301
Klepinger Road, Dayton, Ohio, including truckdrivers and shipping clerks, excluding
office clerical employees and all guards, professional employees , and supervisors as
defined in the Act.
I also find that on May 11, 1964, the Union made a demand for recognition and
bargaining negotiations upon the Respondent,2 a demand which was received but not
accepted by the Respondent on May 12. The issue is whether Local 768 represented
a majority of the employees in the alleged appropriate unit on that date. The Gen-
eral Counsel contends and I find that there were 26 employees in the appropriate unit
on May 12, including the 3 employees discriminatively laid off on that day and
2 employees laid off ( 1 discriminatively) on the following day. For the purposes
of computation of majority status, I find all of these employees , including James
Johnson, were embraced in the unit on May 12. As evidence of designation of Local
768 as bargaining representative, the General Counsel submitted 14 cards signed by
employees in the appropriate unit and allegedly designating Local 768 as their collec-
tive-bargaining representative .3 The issue now presented is whether those cards
constitute proper evidence of designation, for if the cards establish a valid designa-
tion Local 768 had a narrow but clear majority. The cards are not, however, the
usual authorization cards and because I believe this issue to be significant , not only
in this case but in future cases where this International union may be involved, fac-
similes have been made and the cards are attached to this report and made a part
hereof marked "Appendix A" and "Appendix B". The card marked "Appendix A"
is the facsimile of General Counsel 's Exhibit No. 6 as is the same type of card used
in Exhibits Nos. 8-a through 8-h and 9. This card is captioned in heavy type "Peti-
tion and Authorization for N.L.R.B. Election." In smaller type it reads- "I, the under-
signed, a salaried employee of . . . authorize the IUE-AFL-CIO, to petition the
United States National Labor Relations Board for an election as soon as possible,
in order that I may become a part of the Professional, Technical and Salaried Con-
ference Board." There then follows a statement authorizing the IUE-AFL-CIO to
act as his bargaining agent with the above -named Company . The second card used,
marked "Appendix B", is captioned "Petition and Authorization to Show That" and
in bolder and larger type immediately below are the words "I WANT AN N L.R.B.
ELECTION NOW". Again in smaller type is a statement that the signer is author-
izing the International Union of Electrical, Radio and Machine Workers, IUE-AFL-
CIO, to petition the Board for an election and a following statement authorizing the
IUE to bargain with Lenz.
2 General Counsel's Exhibit No. 3.
3 General Counsel 's Exhibits Nos 6, 8-a through,8-h, 9, 10, 11 -a, 11-b, and 11-c.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue as to whether such cards constitute a valid and unequivocal designation
of a union has been presented to the Board but not passed upon by it. In Morris &
Associates Inc., 138 NLRB 1160, 20 such cards were presented in support of the
Union's (IUE) claim to majority status. Trial Examiner George J. Bott rejected
the cards on the ground that a majority of the employees were told that the cards
would be used to obtain a Board election. In affirming him, the majority of the
panel found that the union agent had represented that "other than for an election,
the cards were not binding upon the people that signed them." Whether the cards
themselves were invalid was a question the majority 4 and the Trial Examiner found
unnecessary to decide.
I think this issue should no longer be avoided. The Board has held in Englewood
Lumber Company, 130 NLRB 394, that a misrepresentation as to the purpose in
obtaining cards, i.e., that they were to be used only for obtaining a Board election,
was sufficient to justify rejection of the cards as evidence of authorization of repre-
sentation. There can be no quarrel with the Englewood decision on either legal or
equitable grounds. Later, however, in its decision in Cumberland Shoe Corporation,
144 NLRB 1268, the Board held that such a misrepresentation must be the only
reason given the employees for obtaining cards. The rationale for such a distinction
is no where explicated in the Cumberland decision and it may perhaps only be
explained by the change in the membership of the panels which decided the respec-
tive cases. In Ottenheimer and Company, Inc., 144 NLRB 38, the former Board
Member Rodgers made it clear that he would not accept cards obtained by misrepre-
sentation as to the purpose of the cards, but the panel majority failed to pass upon
the.issue. In Gorbea, Perez & Morell S. en C., 142 NLRB 475, a Board majority,
with Members Rodgers and Leedom dissenting, authenticated cards obtained through
fraudulent misrepresentation on the ground that since respondent's unfair labor prac-
tices had made a fair election impossible the cards should be counted as votes regard-
less of such taint. Thus, if an employer engages in unfair labor practices during an
organizational campaign the union's majority status is established despite the fact
that the majority has been obtained by fraud and the union has not been lawfully
designated.
I find the above cases relating to oral inducements insufficient guidelines for the
quite specific decision to which must be made herein. I am unwilling to accept the
proposition, implicit in the Goi bea decision, that a union's fraudulent misrepresenta-
tion of the purpose of signing the cards is sanctioned and the cards validated if an
employer has simultaneously engaged in unfair labor practices. I cannot read into
the statute any implication that an order to bargain is the proper remedy for an
employer's unfair labor practice where the union does not represent a majority of
the employees and I do not consider that a majority obtained by either fraud or
coercion to be a majority within the meaning of the Act. It is difficult to acknowledge
that a condonation of chicanery is necessary in order to effectuate the policies of the
Act. In this case the clearest indication of the purpose of the cards is found at their
tops and in the boldest print and it is only when the last statement on the card is read
that the authorization of the IUE-AFL-CIO is made known. Furthermore all but
three of the cards which were received in evidence state that the employee is a salaried
employee of Lenz and request an election so that the signatory may become a member
of the Professional, Technical and Salaried Conference Board. The employees were
not salaried and, so far as this record indicates, had no intention of becoming mem-
bers of any "Professional, Technical and Salaried Conference Board." This language
alone is sufficient to cast doubt as to the authentcity of the cards and when coupled
with the stated primary purpose of the cards it compels rejection. These cards par-
take too strongly of the "fine print" clauses in contracts used by businesses to dupe
and deceive the public and the encouragement of the practice does not seem to be
a proper Federal function. Nor do I consider the fact that the organization of
employees may be assisted as the result of such practices constitutes justification.
I therefore find that Local 768 did not represent a majority of the employees in an
appropriate unit and that Respondent did not violate Section 8(a) (5) of the Act.
* Member Brown did consider the cards proper proof of the Union's representative status.
r The Trial Examiner did state however that, "where the purported authorization is
questionable on its face in emphasizing the election features of the designation, what the
employees are told assumes greater importance regardless of individual impressions on
reactions testified to after the event."
LENZ COMPANY
HI. THE REMEDY
1409
It having been found that the Respondent engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent discharged Vincent Pugh , Carl Gambrel,
Glen Thacker, and William Walters to discourage membership in Local 768. The
record indicates that all were subsequently offered reinstatement .6 It will be recom-
mended that the Respondent make each of them whole for any loss of earnings he
may have suffered by reason of the discrimination practiced against him until the
date of the offers of reinstatement in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289, together with interest as prescribed in
Isis Heating & Plumbing Co., 131 NLRB 716.
Because Respondent has made efforts to remedy certain of the unfair labor prac-
tices found to have been committed herein a broad cease -and-desist order will not
be recommended.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the Act.
2. Local 768 is a labor organization within the meaning of the Act.
3. By telling its employees they were discharged or laid off because a letter had
been received from the Union, Respondent violated Section 8 (a) (1) of the Act.
4. By discharging or laying off employees Vincent Pugh, Carl Gambrel, Glen
Thacker, and William Walters to discourage membership in Local 768, Respondent
violated Section 8(a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case , and pursuant to Section 10(c) of the National Labor Rela-
tions Act , as amended , it is recommended that Respondent , Lenz Company , its offi-
cers, agents , successors , and assigns shall:
1. Cease and desist from:
(a) Telling its employees that they had been discharged or laid off because Lenz
Company had received a letter from the Union.
(b) Discriminating against any employee with respect to his hire or other terms
or conditions of employment to discourage membership in International Union of
Electrical, Radio and Machine Workers, AFL-CIO, Local No. 768, or any other
labor organization.
(c) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of the'rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Make Vincent Pugh, Carl Gambrel, Glen Thacker, and William Walters whole
for any loss of earnings they may have suffered by reason of the discrimination prac-
ticed against them in the manner set forth in that section of this Decision entitled
"The Remedy."
(b) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to be made whole for any loss of pay they may
have suffered by reason of the discrimination practiced against them.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary for the compu-
tation of backpay which may become due under the terms of this Recommended
Order.
6 The record establishes that no response to written offers of reinstatement were received
from Gambrel and Thacker . It also establishes that Pugh was reinstated as a night-shift
employee and that Walters was transferred to the night shift shortly after his reinstate-
ment . In view of the fact that each left the employ of Respondent shortly after rein-
statement , no recommendation will be made with respect to this issue
796-027-66-vol. 153-9 0
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its place of business at Dayton, Ohio, copies of the attached notice
marked "Appendix C." 7 Copies of said notice, to be furnished by the Regional
Director for Region 9, shall, after being duly signed by a representative of the
Respondent, be posted by it immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to see
that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing, within 20 days from the
receipt of this Decision, what steps have been taken to comply therewith 8
It is further recommended that all allegations of the complaint not specifically
found to have been violations of the Act by Respondent in this Decision shall be
dismissed.
' In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall brr substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
'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 A
Petition dhd Authorization FohN. L. R. B. 'Election
1. the undersigned , a salaried employee of.^l. -..` ....._..^
Classificationl-sEG. 1 ..... Building..... .....Res. Phone ....... ................
Board for an election as soon as possible , in order that I may become a part oft
the Professional, Technical and Salaried Conference Board.
Y outl orize the IUE-AFL -CIO to act as my bargaining agent with the above named
-Company in regards to wages , hours , and working conditions.
I
NAAAE lPrintl... Q .& ^ i.M^....y. Datte1il/̂j/4 ........^^.jj
ADDRESS (Prinf ). 1t./..... .l4.. City,, .et'..!!_.g4Z Stated/M
")
authorize the IUE-AFL-CIO, to petition the United States N6Konol Labor Relations
Petition and Authorization to Show That
APPENDIX B
Signature --- ---•-- . ..... m
•1 WANT AN N.L.R.B.*ELECTION NOW
I, the undersigned , an employee of ....... ... - -.... ...„ ............... hereby
Cnm
authorize the International Union of Electrical adio anp.nd l^fachine Workers, IUE.
AFL-CIO, to petition the National Labor Relations Board - for an election as soon
as passible.
I authorize the IUF .AFL-CIO to act as my bargaining agent with the company
in regards to wages , hours and working conditions. -
NAME (print) D1.7f^11^`^15. .... . A /.)!F/. ....Date ..s/6,/..64......... . ....
ADDRESS (prh1t ) ..9.^L. F r^2.G..(^ I ?I4 kE aty .1^A^.T.aiY...__.....
Dept. 62,.4 1&,E .................... Shift . S..C'.y- .Phone Z22^22/5....:.
Sign H ,..^ cZtt./- • • lac e^cic D-Gc
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1411
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT tell our employees that we are discharging them or laying them
off because we have received a letter from the Union.
WE WILL NOT discharge or lay off any employee to discourage membership in
International Union of Electrical, Radio and Machine Workers, AFL-CIO,
Local No. 768, or any other union.
WE WILL offer Vincent Pugh, Carl Gambrel, Glen Thacker, and William
Walters backpay for the wages lost since they were discharged until we offered
to reemploy them.
WE WILL NOT in any like or related manner restrain or coerce our employees
in the exercise of their right to self-organization, to form, join, or assist Inter-
national Union of Electrical, Radio and Machine Workers, AFL-CIO, Local
No. 768, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activity for
their mutual aid and protection as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities, 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 by Section 8(a)(3) of the Act as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
All of our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
LENZ COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
.and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any question concerning this notice or compliance with its
provisions.
Tennessee Packers, Inc., Frosty Morn Division and Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local No. 405. Cases Nos. 26-CA-1863 and 26--CA-1934-2.
July 13,1965
DECISION AND ORDER
On April 28, 1965, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not engaged in certain
-other unfair labor practices alleged in the complaint and recommended
153 NLRB No. 122.