Moore's Seafood Products, Inc.

National Labor Relations Board - Board Decisions

May 19, 1965

152 N.L.R.B. 683 (N.L.R.B. 1965)

MOORE'S SEAFOOD PRODUCTS, INC. 683
Moore's Seafood Products , Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO. Case No.
30-CA-46. May 19,1965
DECISION AND ORDER
On December 22, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in this com-
plaint, and recommended that these allegations be dismissed. There-
after, the General Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed a reply brief "in sup-
port of Respondent's exceptions to Petitioner's brief," as well as excep-
tions "to parts of Trial Examiner's Decision," and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this proceedings, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner to the extent consistent
herewith.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by asking its employees to sign petitions
disavowing their support of the Union, by prohibiting employees from
engaging, during nonworking hours, in conversations about the Union,
by suggesting that employees form an "inside" union of their own,
by interrogating employees concerning union meetings and other
union matters, and by threatening employees that their safety or
security would be jeopardized by their support of the said Union.
Contrary to the Trial Examiner, however, we would find that Respond-
ent's general manager, Scott Moore, created the impression of sur-
veillance when he announced to employees on May 27 that the Union
had held a meeting 4 days before, including a recital of the exact num-
ber present and the specific strike vote. How this information reached
152 NLRB No. 66.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore is not the criterion. The Board has held that whether or not an
employer in fact spies upon the employees' union meetings, the creation
of the impression in their minds that he is keeping their union activities
under surveillance is as intimidating and as coercive as surveillance
itself. It is, therefore, a violation of Section 8(a) (1).1
2. The Trial Examiner recommended dismissal of the 8(a) (5) alle-
gation. Based upon his analysis of the record, he concluded that the
Union did not represent a majority of the employees in the bargaining
unit on March 1,1964, before the commission of unfair labor practices
by the Respondent. We disagree with his findings concerning major-
ity? For the reasons stated below, we find that the Union did, in fact,
represent a majority of the unit employees as of March 1, immediately
before the Respondent engaged in unfair labor practices calculated to
destroy that majority, and that the Respondent violated Section 8(a)
(5) and (1) of the Act when on May 25, 1961, it questioned the Union's
majority and refused to negotiate further without proof of majority.
Excluding laid-off employees, the Trial Examiner found that the
unit consisted of 76 employees on March 1, of whom 42 were union
members.-3 However, 6 of these 42-Schultz, Finn, Ault, Kinateder,
Streich, and Krening-testified that "they had decided" in February
1964 to leave the Union, although initially they testified that they
ceased being union members on various dates beginning March 3.
Some of the six, in February, actually signed a "paper" indicating an
intention to leave the Union, which they later destroyed without deliv-
ery to anyone. Three of the group said to Union Steward Volk, in
February, that they wanted to get out of the Union, two specifically
because they considered the dues too high. However, none took
unequivocal action leading to resignation until early March when they
wrote letters of resignation to the Union and gave copies to the
Employer. The Trial Examiner subtracted these six from the major-
ity count, on the ground that the evidence of disaffection in February
was determinative. Contrary to the Trial Examiner, we find that
these six employees did not revoke their designations of the Union as
bargaining agent until the unequivocal action taken by them after
March 2, hence that their resignations did not impair the Union's
March 1 majority status 4
' See R. L. Ziegler, Inc., 129 NLRB 1211, 1221-1222.
2 We do not reach the question whether, in the circumstances here, this certified Union
was required to demonstrate its continuing majority, and we do not adopt the Trial
Examiner 's interpretation of Celanese Corporation, 95 NLRB 664. On this subject see
Laystrom 31anufactuonng Co, 151 NLRB 1482
s The Trial Examiner referred to "42 or 43" depending upon whether Schueler was a
member as of March I. We agree with the Respondent that the record does not show
Schueler to have been a union member on March 1, 1964
4 See Tinley Pa) k Dairy Co , d/b/a Country Lane Food Store, 142 NLRB 683, 685-686.
MOORE'S SEAFOOD PRODUCTS, INC. 685
The Trial Examiner also analyzed the employee status of additional
individuals not included in his computation of the unit total. This
was a group of approximately 15, almost all union members as he
found, who had been laid off when the night shift was discontinued
in November 1963 and had not returned to work by March 1. He found
that except for employee Libakken this group had been terminated
-before March it. Accordingly, he included only Libakken in the unit,
for a revised total of 77 as of March 1.
Most employees laid off from the night shift several months earlier
were called by the Respondent for daywork in January or February
1964.5 Many, apparently, were reached by telephone and some of
them (Klietz, Schneider, and Kutz so testified) explained that they
could not work days and were told that they would be called again if
a night shift was resumed, but were not told that they were termi-
nated. Nevertheless, the payroll records of some were marked : "ter-
minated-cannot work days-call her when we start a night shift." 6
Libakken, however, explained that she was ill and would get in touch
with the Company when she was able to work, but her payroll record
was likewise marked : "Terminated-cannot work nights [sic]-call
her when we start a night shift." These payroll record notations were
made by Plant Manager Scanlon. The Trial Examiner noted that
this error in marking Libakken's record was in conflict with testimony
of Scanlon that he made the notation immediately after calling her
and cast "something of a cloud" over all of Scanlon's testimony which
he further observed was "scarcely lifted" by the testimony of two other
laid-off employees, Klietz and Schneider, which also conflicted with
that of Scanlon.? Despite these questions concerning the reliability
of Scanlon's testimony about the payroll records, the Trial Examiner
concluded that this record established termination by the Respondent
6 Respondent introduced in evidence rough notes of Production Manager -.Nloratz, in
the form of a list, concerning the recall efforts of the Respondent with respect to a
group of 28 laid-off employees Of these 28 , 16 appear to have been leached by telephone
and 12 to have been sent registered letters , although copies of letters to only 6 are in
evidence . Apparently nine accepted daywork at this time, as evidenced by Respondent's
March 11 employee list, Respondent 's Exhibit No 11 Fourteen on Moratz ' list have
the word "quit " wntten next to their names . Moratz testified that this was written at
Scanlon's direction.
O The night shift was resumed in April 1964 . Employees from the November layoff
who are shown to have returned to work are : Libakken , Schneider, Butz, Mundt, and
Gregg. It is not disputed that new employment applications were not required of these
employees.
" In this connection we note an additional inconsistency in the Respondent 's records.
Respondent ' s Exhibit No . 12, which was prepared for the hearing in July, shows Libakken,
Klietz, and Schneider as "On lay -off 3-14-64, Recalled 4-6-64 " Scanlon was unable
to explain these layoff references except to say: "Our records were that they had quit "
Exhibit No 12 also shows Falk, Green, and Hernandez as "Term 11-2-63," whereas
their payroll records indicate termination by the Respondent much later , after its January
and February 1964 attempts to recall them to daywork This discrepancy was not ex-
plained Other discrepancies in connection with Respondent 's Exhibit No 12 are dis-
culsed in that part of the text dealing with McGoon and Peterson.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this entire group, except Libakken, before March. We do not agree
with this blanket result in view of the discrepancies in the Respondent's
records and in Scanlon's testimony. In particular, we see no basis for
concluding that laid-off employees who explained on being called by
telephone that they could not accept daywork were, in fact, termi-
nated. This includes Klietz, Schneider, Kutz, Mundt, and Hernan-
dez." In reaching this result we do not, of course, infer, as the Trial
Examiner did, that it is "probable" that these employees were termi-
nated because other employees who received letters were so informed.s'
The letters, we note, were sent when telephone calls produced no results.
We are unwilling to infer that because the Respondent was apparently
acting under advice of counsel, it "followed in its telephone contacts
the same form used in the letters." In addition, we note that the
letters themselves do not say that failure to accept daywork would
result in termination, but only that failure to "hear" from the employee
would have this effect. We conclude that these five employees (Klietz,
Schneider, Kutz, Mundt, and Hernandez) were not terminated but
were in layoff status on March 1.
We also include in the unit two additional employees for the reasons
here stated. Florence McGoon was listed on Respondent's Exhibit
No. 12 as "Term. 2-28-64." McGoon's name was included by the,
Respondent in the list of employees it furnished the Union on Febru-
ary 18. The Trial Examiner excluded McGoon, a union member, from
his unit total of 76, noting her hospitalization in February and the
termination of her employment "that month." The record shows that
this hospitalization followed a nervous breakdown, and that McGoon
was admitted to a State mental hospital. The Union contends that
McGoon should have been included in the unit and calls attention to,
its contract provision to the effect that an employee with at least 90 ,
days' service, which McGoon had, is not subject to discharge "because
of absence from proven illness not to exceed thirty days." It contends
that Scanlon terminated McGoon in less than the 30 days because, as
his testimony indicates, he viewed her condition as serious, even though
he had no knowledge that she could not be restored to health.
The Board ordinarily includes in a unit computation employees on
sick leave, and has held that illness followed by formal termination
based upon a belief that the ill employee will not return to work does
not necessarily preclude the inclusion of such employees from a numeri-
cal computation of majority status. See E. H. Sargent and Co., 99
"Scanlon admitted that he told Klietz and Hernandez they would be considered for
nightwork . The payroll records of Schneider , Mundt , and Kutz , marked by Scanlon, so
indicated . In addition Klietz, Schneider , and Kutz testified that they were told that
they would be considered for nightwork
6 The registered letters read : "We have an opening on our day shift-7.00 to 3:30.
If you wish to return to work please contact our plant supervisor, Frank Moratz . . .
before [specific date]. If we do not hear from you we shall assume you are not interested
and this will terminate your employee rights with us."
MOORE'S SEAFOOD PRODUCTS, INC. 687
NLRB 1318, 1320. Although McGoon was included in a list of
employees furnished by the Respondent on February 18, 1964, she was
listed in the Respondent's exhibit prepared for the July hearing in this
proceeding as having been terminated on February 28-3 days before
the decertification petition was circulated by Belzer, a supervisor. The
record contains evidence that the Respondent puts sick employees on
leaves of absence, that the Respondent knew that it would have been
difficult, if not impossible, for McGoon to have requested a leave of
absence, that it terminated her because of the nature of her illness as
revealed by other employees, and that the contract provides for a
30-day period of sick leave. Assuming that the Respondent intended
to terminate McGoon on February 28 as it testified, we do not believe
that in these circumstances McGoon was effectively terminated within
the meaning of the contract or the practice of the Company. Accord-
ingly, we shall include McGoon in the unit.
Exhibit No. 12 of the Respondent also shows Viola Peterson as
"Term. 11-2-63." However, Scanlon identified Peterson as a night-
shift employee in 1963, who was not terminated until the following
January or February. "Termination" as of November 2 is contrary
to a stipulation that Peterson was laid off, and contrary to the Union's
list of March 1, 1964, members showing Peterson in layoff status.
Scanlon, asked when Peterson's termination occurred, first said :
"Sometime in January and February ... by either telephone call or
registered letter." He then said he did not know whether he had con-
tacted or, in fact, whether she had been contacted at all, and finally
that he was "not familiar with this name." Peterson's name is not
on Moratz' list of 28 which was used for recalls in January and Febru-
ary. On this state of the record, which establishes no attempt to recall
Peterson or other explanation of why her status would have changed,
we conclude that she remained in layoff status on March 1 and shall
include her in the unit. Adding Klietz, Schneider, Kutz, Mundt,
Hernandez, McGoon, and Peterson to the unit total of 77 (which
includes Libakken) gives a new unit total of 84 employees, of whom
49 were union members, a clear majority. As the Respondent admit-
tedly refused to bargain on and after May 25, 1964, we find that by
such refusal Respondent violated Section 8(a) (5) and (1) of the
Act.10
10 The Trial Examiner's conclusion of law No 2 is amended to read:
"By refusing on and since May 25, 1964 , to bargain with the Union as the exclusive
representative of employees in the appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1)
of the Act . The appropriate unit is:
"Production and cleanup employees of the Employer at its Fort Atkinson, Wisconsin,
plant , including saw operators , but excluding all other employees and supervisors as de-
fined in the Act."
We note that truckdrivers were not included in the contractual unit in effect on March 1,
1964.
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Moore's Seafood Products,
Inc., Fort Atkinson, Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
1. Renumber paragraph 1(f) of the Recommended Order as 1(h)
and insert the following as 1(f) and 1(g) :
"(f) Creating the impression of surveillance of union meetings."
"(g) Refusing to bargain with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, as the exclusive rep-
resentative of employees in the appropriate unit, which is:
Production and cleanup employees of the Employer at its Fort
Atkinson, Wisconsin, plant, including saw operators, but excluding
all other employees and supervisors as defined in the Act."
2. Insert the following as paragraph 2(a), and renumber para-
graphs 2(a) and (b) consecutively:
"Upon request, bargain with the Union as the exclusive representa-
tive of the employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment and, if an understanding is reached, embody the same in a signed
agreement."
3. Insert the following as the sixth and seventh indented paragraph
of the notice immediately before the final paragraph :
WE WILL NOT create the impression of surveillance of union
meetings.
1,'`TE WILL, upon request, bargain collectively with Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, for the unit described below, in respect to rates of pay,
wages, hours of work, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody it is a signed
agreement. The bargaining unit is :
Production and cleanup employees of the Employer at its
Fort Atkinson, Wisconsin, plant, including saw operators,
but excluding all other employees and supervisors as defined
in the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , heard before Trial Examiner Frederick U. Reel at Fort Atkinson,
Wisconsin , July 7 to 9 and 29, and November 10, 1964,1 pursuant to a charge filed
' All dates herein refer to the year 1964 unless otherwise indicated.
MOORE 'S SEAFOOD PRODUCTS, INC. 689
the preceding March 18 and a complaint issued June 19, presents questions concern-
ing alleged violations of Section 8(a)(1) and ( 5) of the Act . Upon the entire
record,2 including my observation of the demeanor of the witnesses, and after due
consideration of the briefs and supplemental briefs filed by Respondent and by
General Counsel, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT , AND THE LABOR ORGANIZATION INVOLVED
Respondent , herein called the Company , a Wisconsin corporation engaged at Fort
Atkinson in the manufacture , sale, and distribution of food products , annually both
receives from, and ships to, points outside the State goods valued in excess of $50,000,
and is therefore engaged in commerce within the meaning of the Act. The Charging
Party, herein called the Union , is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and chronology of events
On or about October 19, 1962, the Board certified the Union as the statutory bar-
gaining representative of the Company 's "production and clean-up employees." On
March 11 , 1963, the Company , then located in Milwaukee , Wisconsin , entered into a
collective -bargaining agreement with the Union , covering "production and clean-up
employees" and the "saw operator " but not including truckdrivers . The contract
which was to run until March 10, 1964, and thereafter from year to year unless termi-
nated by either party on written notice not less than 60 days prior to any expiration
date, contained a "maintenance of membership " clause which provided that members
of the Union in good standing on the date the contract was executed , and employees
who thereafter became members , "shall, as a condition of employment , remain mem-
bers of the Union in good standing until the original expiration date of this contract."
The clause continued:
At least fifteen days prior to the expiration of this contract or any automatic
renewal thereof, the Employer may inform every one of the employees in said
bargaining unit that such employee shall have the right to continue as a member
in good standing of said Union or may withdraw as a member of said Union,
at any time before the expiration date of this contract ; and such employee shall
further be informed that if he or she desires to continue as a member of said
Union, then such employee will, as a condition of employment , be obliged to
remain a member of the Union in good standing for an additional twelve months.
In the summer of 1963, during the life of this contract . the Company moved its
scene of operations from Milwaukee to Fort Atkinson , approximately 50 miles away.
At this time the Company offered its Milwaukee employees the opportunity to con-
tinue their employment in the new location. The record indicates that only a few
availed themselves of this offer , for a company seniority list furnished in mid-
November 1963 lists 90 employees with only 6 hired before August of that year.
After its move to Fort Atkinson , however, the Company continued during the life of
the contract to observe it and to recognize the Union as the bargaining representative.
In November 1963 the Company discontinued its night shift and laid off a number
of employees . Some of these were offered day-shift employment in January but
refused it , and some of those returned to work in April when the night shift was
resumed. The question whether they retained the status of laid-off employees after
declining day-shift work in January is one of thg issues litigated in this proceeding as
a facet of determining the Union 's majority status in March.
In December 1963 the Union gave timely notice of its desire to reopen the con-
tract for negotiation of changes in its terms . Following some exchange of correspond-
ence, the parties met in bargaining sessions on February 28 , March 5 and 10, and
May 20. This case is more concerned with what happened outside the bargaining ses-
sions than what occurred within them but it may be noted that at the May 20 ses-
sion the Company for the first time agreed to the Union 's request, advanced earlier in
2 General Counsel's motion to correct certain typographical errors in the transcript was
unopposed and is herewith granted, except insofar as it applied to General Counsel's
Exhibit No 10, which was not offered Into evidence Also at page 51, lines 9 and 10, the
words "certify " and "certified" are hereby corrected in each case by adding the
prefix "de."
789-730-66-vol. 152-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the negotiations, that truckdrivers be included in the bargaining unit. A meeting
scheduled for May 26 was canceled because company counsel on May 25 wrote the
Union stating that the Company challenged the Union's majority and declined to
recognize it.
As just stated, the leading events in this case centered around the "bargaining"
period between January and May, but occurred outside the bargaining conferences.
In the latter part of February, with the approach of the March 10 expiration date of
the contract at which time the employees would be free to withdraw from the Union
without jeopardizing their employment, several employees expressed to one another
their desire to give up their union membership. On February 25 the Company posted
a notice advising the employees that they could withdraw from the Union between
that date and March 10, but that in the event of a failure to withdraw by that date,
they would have to remain union members for the next year in order to retain their
employment.
On Monday, March 2, under the leadership of Lillian Belzer , a supervisor within
the meaning of the Act, a petition was circulated through the plant, reciting that the
signatories did not desire the Union to represent them and did not desire to be mem-
bers of the Union. Belzer continued to circulate the petition and asked employees to
sign it on March 2, 3, and 4. On March 4 she returned it with 47 signatures (includ-
ing her own, those of 2 other supervisors, John Kinateder and Donald Nushart, and
those of 2 employees who sought to remove their names the day after signing) to her
counsel, who mailed it to the Board on March 6. About the same time Belzer was
circulating her petition , a number of employees wrote the Union, with a copy to the
Company, stating their intention to resign from the Union. Whether these letters
preceded or followed the Belzer petition was a matter hotly contested in the course of
trial, and is further developed below.
Respondent's chief executive officer, Scott Moore, testified that upon learning of the
Belzer petition and of the "possibility that the Union did not represent a majority," he
"instructed [the Company 's] attorney to at that time slow down negotiations ...."
The bargaining did indeed "slow down ," as witness the lapse of time from March 10
to May 20 in which no bargaining sessions were held and in which the Company
reneged on its March 10 promises to present a counterproposal and to arrange a
further meeting. During this period, however, the Company, acting through Moore
and through Supervisors Belzer and Moratz, allegedly engaged in various acts,
described below, which General Counsel contends violated Section 8(a)(1). Mean-
while, the filing of the original charge in this proceeding , as well as the filing of the
Belzer decertification petition , brought the Board's Regional Office into the picture.
When investigation disclosed that the decertification petition had been circulated by a
supervisor , that petition was withdrawn and after some settlement discussions, bar-
gaining resumed on May 20. A second decertification petition was filed by a number
of employees on May 21, and the Company promptly again broke off negotiations,
expressly challenging the Union 's majority.
On Saturday, May 23, at a union meeting a "strike vote" carried 24 to 2, and on
the following Wednesday, May 27, Moore in the course of an employee meeting he
had called , disclosed that he knew the date of the union meeting, the number attend-
ing, and that they had voted 24 to 2 to strike. At this same employee meeting, Moore
announced the granting of a 5-cent wage increase . General Counsel alleges a viola-
tion of Section 8(a)(1), implied surveillance , in Moore's statements about the union
meeting, and a violation of Section 8(a)(5) and ( 1), unilateral action in derogation
of the bargaining representative, in the wage increase. On June 22 the Regional
Director dismissed the pending decertification petition ; the Board , on August 5,
sustained the dismissal because of the pendency of this proceeding.
With this summary we turn to a consideration of (1) the specific conduct alleged
to have violated Section 8 (a)(1), and ( 2) the question whether the Union repre-
sented a majority at the time of the Company's refusal to bargain, or , if not , whether
the Union's loss of majority was attributable to unfair labor practices.
B. Interference, restraint, and coercion
Belzer's circulation of a decertification petition on March 2, 3, and 4 constituted
unlawful interference by the Company with the employees' rights under Section 7.
Belzer was a company supervisor, and, particularly in the absence of any disavowal
of her conduct by the Company, it is liable for her actions in this respect. The Com-
pany suggests that Belzer was "nothing more than a leadman," and that her super-
visory status was "not litigated," but this suggestion is totally devoid of force in view
of the admission, offered by company counsel, that Belzer was a supervisor, and the
stipulation, likewise offered by company counsel, that she instigated and circulated a
petition to decertify. Finally the Company suggests that Belzer was merely acting
MOORE'S SEAFOOD PRODUCTS, INC. 691
as a "sincere friend" to employees "who found themselves thwarted" in their efforts
to resign from the Union. As to this it suffices to note that the conduct here found
illegal is the circulation of a general decertification petition through the plant, and
not Belzer's friendly efforts on behalf of those who spoke to her concerning means of
resigning from the Union.
Likewise plainly violative of Section 8 (a) (1) were Scott Moore's instructions in
mid-March to Union Stewards Carmichael and Volk that they were not to talk about
the Union in the plant at any time, even during nonworking periods. The illegality
in the rule announced by Moore is compounded by the undisputed evidence that
employees were free even to solicit for many other items at the plant. Moore in his
direct testimony inferentially denied making the statements attributed to him by
Carmichael and Volk, but on cross-examination admitted that he "may have told
[them] that they were not to talk about the Union on their break time." On the
entire record, and in view of my distinctly favorable impression of both Carmichael
and Volk as careful, honest witnesses, I credit their versions of their conversations
with Moore, and find that the Company promulgated an invalid no-solicitation rule,
thereby violating Section 8(a)(1).
Uncontradicted testimony adduced by General Counsel establishes that Production
Manager Moratz, admittedly a supervisor, spoke to employee Beckard in mid-March
and thereafter, suggesting that the Company would help the employees set up an
"inside" union with lower dues. Likewise uncontradicted is the testimony of employee
Semrau that on April 8 Supervisor Belzer asked if he knew about a union meeting
and if she could see the Union's letter to the employees regarding the meeting.
Semrau further testified without contradiction that Belzer on this occasion said
Semrau would be "sticking his neck out "to remain in the Union, and she could form
a union of their own or get a company union. I credit the testimony of Beckard and
Semrau, and find further violations of Section 8(a)(1) in the conduct (promotion
of a company union, interrogation, and threats) they ascribe to Supervisors Moratz
and Belzer.
I would, however, dismiss the complaint insofar as it alleges that Scott Moore
"created the impression" of surveillance when on May 27 he told the employees he
knew the Union had held a meeting on May 23, and that the 26 present had voted 24
to 2 to strike. In view of the time elapsing between the union meeting and Moore's
remarks, and the relatively small size of the plant and the community, this informa-
tion could easily have reached Moore's ears by any number of channels.
C. The refusal to bargain
1. The critical date
The Company's last and final refusal to bargain was dated May 25. As late as
May 20 the Company stated that it recognized the Union's status as statutory bar-
gaining representative. General Counsel contends that the critical date for determin-
ing majority status is March 1 (the day prior to Belzer's unlawful circulation of the
antiunion petition), and the Company contends that the critical date is March 11, the
day after expiration of the 1963 agreement with its maintenance of membership and
"escape" clauses quoted above. For reasons indicated below, I find that the critical
date is March 1, rather than the date now urged by the Company or the date on which
negotiations broke off.
With respect to the latter date, May 25, the breakoff in negotiations followed the
filing of a decertification petition. But this in turn had been preceded by a myriad
of unfair labor practices by the Company including threats, unlawful interrogation,
suggestion of a company union, sponsorship of a previous decertification petition,
unlawful restrictions on union activity, and an admitted deliberate "slowdown" of
bargaining, so that any loss of majority which might be shown on May 25 would be
attributable as a matter of law to the Company's unfair labor practices, and could
not be used to defeat a bargaining obligation which existed prior to their commission.
Some inconsistency inheres in the Company's readiness to bargain as late as May 20
and its present contention that the Union had lost its majority by March 11.
Moore's attempt to explain that inconsistency is not altogether satisfactory. He
testified:
Sometime in March after receiving that list [of union members] and going over
that list with the employees we had at that time, it seemed to me that there was
a possibility that the Union did not represent a majority, and I instructed our
attorney to at that time slow down negotiations knowing that there was a peti-
tion pending, and which we hoped there would be vote at which time, as I say,
the result of which we would abide by, and finally, when this was thrown out,
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Lillian Belzer's petition was thrown out, we decided at that time that we
still didn't feel that the Union had a majority and at that time instructed the
attorney to write the letter of May 25.
A somewhat more sophisticated explanation which can be pieced together from state-
ments of counsel on the record and in their briefs is that bargaining resumed in April
or May with the Company recognizing the Union at that time as part of an informal
settlement of the charge theretofore filed in this proceeding. Under somewhat similar
circumstances the courts have held that an employer may not challenge a union's
majority until bargaining has been conducted for a reasonable time after a settlement.
See Poole Foundry and Machine Company v. N.L.R.B., 192 F. 2d 740 (C.A. 4),
cert. denied 342 U.S. 954; N.L.R.B. v. Stant Lithograph, Inc., 297 F. 2d 782
(C.A.D.C.). The settlements in those cases, however, were written rather than oral
agreements, and perhaps for that reason General Counsel places no reliance on them
here.
The Company's challenge to the Union's majority does not, cannot, and need not
rest on either of the decertification petitions. It does not and cannot rest on the first,
which was circulated by a supervisor, or on the second, which arose after numerous
unremedied unfair labor practices. It need not rest on them because the Union's
right and the Company's duty to bargain for the entire unit turns on whether the
presumption of the Union's continuing majority, arising out of its certification, has
been rebutted. If the Company can prove that the Union lacked a majority on the
critical date, the refusal to bargain is not unlawful. If the presumption is not success-
fully rebutted, the refusal to bargain was unlawful. Moreover, the Company in the
latter event cannot be heard to assert a "good faith" doubt of the majority, as its
unfair labor practices preclude a finding of "good faith." But if the Company proves
that the Union in fact lacked a majority prior to the Company's violations of the Act,
the subsequent unfair labor practices do not warrant saddling the employees with a
union they have repudiated. All counsel have implicitly recognized these principles
in their briefs, and have concentrated their fire on three points: the critical date, the
number in the unit, and the number of union adherents.3
As between the dates of March 1 and 11, I find in favor of the March 1 date. On
March 2 Belzer commenced circulating her decertification petition. Any disaffection
from the Union thereafter demonstrated by the employees is at least prima facie
attributable to that unfair labor practice. Likewise, the fact that some employees,
hired between March 1 and It, failed to join the Union may be attributable to the
Company's unfair labor practice. The burden is on the Company "to disentangle the
consequences for which it was chargeable from those from which it was immune."
N L R.B. v. Remington Rand, Inc, 94 F. 2d 862, 872 (C.A. 2), cert. denied 304 U.S.
576. As shown below, the Company in apparent awareness of this problem intro-
duced evidence designed to establish that employees defected from the Union without
regard to Belzer's petition. This evidence is considered at length below. Suffice it
to say here that, subject to evidence that subsequent defections were not caused by the
unfair labor practice, I would view the critical date for determining the majority to
be March 1, prior to the commission of unfair labor practices.
2. The composition of the bargaining unit
a. Number at work in the unit on March 1
On February 18 the Company submitted to the Union a list of 75 employees
whom the Company considered in the bargaining unit. The list included three super-
visors (Belzer, Donald Nushart, and John Kinateder), but did not include four
employees hired between February 18 and March 1. Apparently by inadvertence
the list excluded employee Durkee. The list included one Florence McGoon, who
was hospitalized in February 1964, and whose employment was terminated in that
month. The list did not include Duane Stork, who was a part-time employee called
on to do carpentry from time to time. His employment was distinctly sporadic, the
8 General Counsel, relying on Celanese Corporation of America, 95 NLRB 664, 671, also
argues that as the Company had committed unfair labor practices prior to its ultimate
refusal to bargain, it cannot be heard to assert a good-faith doubt of majority, and that
the case turns on the Company's good faith rather than on the fact of majority. I do
not regard the language in Celanese, where the Board dismissed an 8(a) (5) allegation,
as requiring me to find that if a majority of the employees were opposed to the union at
the time their employer first committed unfair labor practices, they should have a repre-
sentative foisted on them because of those unfair labor practices.
MOORE'S SEAFOOD PRODUCTS, INC. 693
Company did not include him in its claimed list of employees in the unit on March 11,
and I find that he was properly excluded therefrom as well as from the February 18
list. The list excluded Dorothy Gurkowski , whose discharge the preceding October
was still being protested by the Union . No unfair labor practice charge was filed
in her behalf . I regard her exclusion as proper on the evidence before me , but the
matter is not critical to the result in this case , for reasons developed below. Finally,
the February 18 list did not include the two drivers , Riedel and Meske , but as they
were not considered in the bargaining unit at that time, I find that they are not to be
considered in determining the Union 's majority status on March 1. In short , the list
of February 18, with four exclusions ( three supervisors and McGoon ) and five addi-
tions (those hired between that day and March 1 , plus Durkee ) make up the bargain-
ing unit of March 1 , except insofar as that unit may have included employees on
layoff, a matter discussed below .4
b. The Union status of the employees at work on March 1
The Union submitted to the Company at the March 10 bargaining session a list of
53 employees as union members. The list included Gurkowski , three former employ-
ees (McGoon , Hensley, and Brinsfield ), and seven employees in the laid-off group
discussed below.5 The list did not include any of the employees hired since Febru-
ary 18, one of whom, Karen Schueler , joined the Union prior to March 10 and re-
mained a member at least until the date of the hearing . The list did, however, include
11 employees whose inclusion the Company challenges on the ground that they re-
signed from the Union or indicated an intention to do so prior to the circulation of
Belzer's petition.
Of the 11 employees in question , 9 6 had signed Belzer 's petition , and each of the
9 had written the Union a letter of resignation . Although several of them testified
that their letters predated their signing of the Belzer petition , the record conclusively
establishes the contrary with respect to most of them. Thus , the record shows that
Belzer circulated the petition only on March 2, 3, and 4, and that employees Durkee
and Tkadlec signed it (by mistake ) on March 2 . It follows that Dorothy Kinateder,
whose name appears above theirs on the petition , signed March 2, and her letter of
resignation , dated March 3, followed rather than preceded her signing of the petition.
Mary Streich 's name is 14th on the petition , and Elaine Finn's is 22d ; there were 47
signatures in all. Finn signed about 3:45 p.m., manifestly on either March 2 or 3, as
time did not permit adding another 25 signatures after 3:45 p.m. on March 4. Finn's
and Streich 's resignation letters, written March 4, must therefore have followed their
signing of the petition . Edith Friend , Carolyn Walker , and Betty Krening wrote their
letters on or after March 6, manifestly after they signed the petition . Cheryl Ault's
letter mailed March 6 must have been written, according to her testimony , no earlier
that the night of March 4, and therefore after she signed the petition . James Milbrath
and Barbara Schultz may have written their letters before or after signing the
petition , but their letters, dated March 3 and 4, respectively , necessarily followed
Belzer's action in openly circulating the petition , and hence may be attributed to
that unfair labor practice . The same is true of Richard Arndt's resignation, dated
March 3, although he never signed the Belzer petition.?
6 Three more employees were hired on March 2 and one on March 6 . As two of those
four were union adherents (Schilt and Dey) the result in this case is unaffected by the
inclusion or exclusion of the four hirings.
5 The Union 's list showed Eilenfeldt as laid off and Klietz as not laid off. The two errors
cancel each other.
9 Dorothy Kinateder , Mary Stretch , Elaine Finn , Edith Friend , Carolyn Walker, Betty
Krening , Cheryl Ault ( occasionally referred to in the record by her married name,
Lewallen ), James Milbrath , and Barbara Schultz.
7 In finding that they signed the petition before they mailed their letters , I am dis-
crediting the contrary testimony of employees Kinateder , Stretch, Friend, Ault, and
Krening. I am inclined to share the view, expressed by company counnel in his brief,
that employees although not remembering precise dates would be apt to recall the
sequence of events . If this be true, then the testimony of those employees was deliberately
false. Particularly in the cases of Friend and Krening, whose letters were written the
weekend after the petition had been mailed to the Board , I find it difficult to believe that
the error in their testimony was innocent. But this is not to suggest that company
counsel is in any way implicated in this matter. Although the record establishes that
company counsel conferred with these witnesses shortly before they testified , there is
no basis whatsoever for any finding that counsel inspired them to testify falsely.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 11th employee whose union status is challenged by the Company is Winifred
Pohlman. According to Schultz' testimony, during the last week of February, she
asked Pohlman to sign a paper which purported to be a list of those who wished to
resign from the Union. Schultz testified that Pohlman was about to sign this docu-
ment when Union Steward Volk came by and advised them the law prohibited the
signing of such a paper. Pohlman was not called as a witness, but the union dues
records show that she continued to pay dues as late as June 1964, long after Schultz
and the others discussed above had stopped paying dues. Under the circumstances I
believe Pohlman should be included as a union supporter as of March 1.
The paper to which Schultz referred was allegedly signed, however, by Kinateder,
Ault, Streich, and Finn as well as Schultz. Each of the five testified that she signed
it late in February, before the Belzer petition which was first circulated March 2.
Moreover, Finn and Ault as well as a sixth employee, Krening, testified that they had,
individually, expressed to Union Steward Volk in late February their respective inten-
tions to leave the Union. Unquestionably, these conversations did not of themselves
terminate any union memberships. I have already found that as of March 1, exclud-
ing laid-off employees, the unit contained 76 employees of whom 42 or 43 (depending
upon whether Schueler is included) were union members. But if the six just named
(Schultz, Finn, Ault, Kinateder, Streich, and Krening) should be excluded as
defectors, the Union's count drops to 36 or 37 out of 76. I credit their testimony that
they had decided in February 1964 to leave the Union.8 The question remains as to
whether that intention, which predates unfair labor practices, should be given effect in
determining the Union's majority status or lack thereof on March 1. Stated in other
terms, has the Company by this evidence "disentangled" the defections of these six
employees from the defections attributable to the Company's unfair labor practice.
Although I am cited to no case squarely in point, it seems to me that the evidence of
disaffection should be considered and that the six should be subtracted from the
Union's claim . See Crown Can Company, 42 NLRB 1160, 1164-1165; see also
Martin Theatres of Georgia, Inc., d/b/a WTVC, 126 NLRB 1054, 1058-1059. The
fundamental issue which General Counsel has tendered is the Union's majority status
as of March 1. In determining whether the Union is to be the bargaining repre-
sentative , the issue is not whether the Employer committed unfair labor practices,
but whether prior thereto the Union in fact commanded majority support. Union
membership, which these six possessed, is certainly, strong evidence of support of
the Union, but is not irrebuttable. The action of employees in signing a document
by which they intended to repudiate the Union is in my judgment an unequivocal
act which demonstrates their desire not to be represented. This matter is not free
from doubt, particularly as the alleged document was never delivered to the Union
or even to the Company. The unreliability of such evidence of defection might
warrant the conclusion that where, as here, a union enjoys certified status, evidence
of loss of majority should be more formal. Cf. N.L.R.B. v. Sanson Hosiery Mills,
Inc., 195 F. 2d 350, 352 (C.A. 5), cert. denied 344 U.S. 863; see also Ray Brooks v.
N.L.R.B., 348 U.S. 96, 104, footnote 18. But in my opinion, if the evidence estab-
lishes that the Union in fact lost its majority prior to the commission of unfair labor
practices, the absence of a decertification petition (until after the commission of
unfair labor practices which necessarily prevented processing such a petition to an
election) is not conclusive, and the employees (now a "non-consenting majority"
election ) as in International Ladies Garment Workers Union v. N L R.B. and
Bernhard-Altmann Texas Corp., 366 U.S. 731, 737) should not be represented by a
8Their testimony is subject to close scrutiny, as it was adduced in surrebuttal long
after the close of the Company's case-in-chief, and as noted above, I find that some of
these witnesses testified falsely on another point On the other hand, no such taint
attached to Finn's earlier testimony. Also, if the story of the Kinateder paper had been
concocted, I would have expected the fabricators to include Krening among the signa-
tories. Finally, Schultz' account of how Pohlman was about to sign when Volk came
by strikes me as a realistic detail. In short, I am satisfied that there was such a paper,
predating that circulated by Belzer, that the five in question signed it, and that they
and Krening (in her conversation with Volk) clearly evinced a desire not to be represented
by the Union. That this evidence was adduced in surrebuttal and was not directly respon-
sive to General Counsel's rebuttal is not fatal to its admissibility, which rests in the
discretion of the Trial Examiner. Cf Casey v Seas Shipping Co., 178 F. 2d 360 (CA. 2) ;
Hall v Finnaemore, 132 ble. 459, 172 Atl. 826, 832-833; 88 C J S Trial, sec 103 I
regarded the testimony as important to a critical issue of the case, and its exclusion on
the technical ground that it could have been proffered during the case-in-chief would have
glorified trial technique at the expense of acquiring all the pertinent facts. I note also
that Volk was present during the surrebuttal testimony, and was not called to refute it.
MOORE'S SEAFOOD PRODUCTS, INC. 695
union which a majority have repudiated 0 On the entire record in this case, I find
that the Union did not in fact command the support of these six employees as of
March 1, 1964, and therefore that of the 76 employees then active on the payroll
the Union had the support of only 36 or 37, less than a majority. We come then to
the final issue, whether the employees laid off in November 1963 and not reem-
ployed by March 1 should be included in the unit, for the Union's strength in that
group is sufficient to give it a majority in the unit if the laid-off employees are to
be included therein.
C. The laid-off employees
Early in November 1963 the Company discontinued its night shift, thus necessi-
tating a substantial layoff which , as required by contract , was accomplished by
observance of seniority . The laid-off employees were still considered employees
within the bargaining unit after the layoff, and the Company included them in the
list of employees it gave the Union some 10 days after the layoff. The issue is
whether their status changed between that time and March 1.
In late January the Company needed additional employees on the day shift. It
therefore offered jobs to all the laid-off employees , most of whom had been on the
night shift . Some of the employees returned to work. Others either failed to
respond at all to the Company 's efforts to reach them, or responded that they could
not work days but desired to work nights . As of March 1, over 15 employees, all
laid off in November , had not returned to work ; almost all were union members.
If these employees are included in the unit , the Union 's majority is clear , but the
Company contends that their status was changed from "layoff" to "terminated"
when they refused day -shift employment or failed to respond to offers of such
employment in late January or early February.
In support of its contention that the employees in question were "terminated," the
Company introduced evidence that when the day-shift openings occurred , it attempted
to reach the laid-off employees in order of seniority. Those it could not reach by
telephone it wrote, advising the employee of the opening on the day shift, inviting
her, if she wished to return to work, to notify the supervisor by a certain date, and
concluding : "If we do not hear from you , we shall assume you are not interested,
and this will terminate your employee rights with us." (Emphasis supplied.) In
several instances when employees failed to respond to this letter , the Company
marked their employment records with the word "terminated"; its failure to do so
in all such cases was apparently inadvertent and did not reflect any intentional
differentiation.
The testimony is in some conflict with respect to those employees whom the Com-
pany reached by telephone and hence to whom it sent no letter . According to the
company witnesses , Plant Manager Scanlon and Production Manager Moratz, they
told these employees of the openings on the day shift , and if the employee indi-
cated inability to work except at night, they stated that her employment was termi-
nated but she would be notified if and when a night shift was operated . According
to several of the employees in question , the telephone conversations did not include
any reference to termination but merely an assurance that they would be notified
if and when a night shift resumed. As in the case of the employees sent letters,
however, the Company expressly noted "termination " on the payroll records of these
employees.
In support of the contention that the laid -off employees retained employee status
even after their refusal of day-shift employment , General Counsel relies on the tes-
timony of Union Representatives Zalesak and Greenlaw , denied by Company Presi-
dent Moore , that in their discussion of the layoff the preceding November the union
representatives had mentioned that some of the employees could only work nights,
and the Company had agreed that those employees would be held in lay-off status
subject to recall when the night shift resumed , which Moore then thought would be
in January 1964 . 10 Moore's version is that the discussion at that meeting concerned
details of layoff and recall , but did not reach the question of a night -shift worker's
refusing recall to day-shift work. General Counsel also relies on the fact that
when the night shift finally resumed in April , the Company not only notified the
employees who had indicated inability to work days , but it reemployed them with-
s Possibly a different result might obtain if the "repudiation" occurred within the cer-
tification year and was followed by unfair labor practices which prevent the Union
from "recapturing" the dissidents. Here the certification year had ended and only 2 weeks
remained to the contract term.
15 In late January and early February 1964, at the time of the recalls to daywork,
the Company was uncertain as to whether it would again operate a night shift.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out requiring new job applications or tax-withholding forms, and paid them their
former rates of pay, which were higher than beginner 's rates. On the other hand
the Company points out that in April , unlike January, it did not recall the laid-off
employees in order of seniority , and that some who returned did so on their own
initiative at that time. Finally , General Counsel places some reliance on the con-
tract in effect at the time of the November layoff and the January recall which pro-
vided that seniority rights were "on a classification basis." General Counsel's posi-
tion is that the "classification" followed by the Company was by shift ; a list pre-
pared by the Company after the night production shift was discontinued classified
employees as "night," "production ," or "saw." (The night group at that time con-
sisted of six men, apparently not engaged in handling the product , but rather in
various types of maintenance and machine work.)
After considering all the above factors, I have come to the conclusion that the
laid-off employees who did not accept employment on the day shift when it was
offered by the Company were thereupon terminated as employees and are not to
be included in the bargaining unit as of March 1. The most important fact, in my
judgment, is that the Company wrote some of them that they would be terminated
and marked their records as terminated . I am inclined not to credit Zalesak's and
Greenlaw's version of their November conversation with Moore insofar as they
claim he agreed to hold these employees in layoff status even if they refused recall
to a day shift . Even if they be credited , however ( and even if the contract be con-
strued as creating a "classification " right to refuse day shift work-a matter on which
the contract is ambiguous , and the parties have not clarified it by either a suit for
breach or an arbitration proceeding as provided therein ), this would establish only
that the Company had broken its contract in terminating the employees . There is
no charge or complaint that the Company was motivated by antiunion considera-
tions in effectuating these terminations 1 month before the contract expired, and
whatever my suspicions may be in this regard (suspicions fostered by the Com-
pany's union animus , its resort to other unfair labor practices in an effort to
oust the Union , the false testimony introduced in its behalf , including particularly
that of Scanlon in connection with the laid -off employees ( see footnote 12, infra),
and the absence of any persuasive reason short of "advice of counsel" for terminat-
ing these employees instead of continuing them in layoff status ), I would be exceed-
ing the limits imposed on me by the charge and complaint in this case were I to find
that the terminations in question were discriminatorily motivated . This is not to
say that a charge of discrimination would necessarily have been sustained, particu-
larly as a few of the employees involved were nonunion and were treated like the
others. But in the absence of any allegation of discrimination , I take the Company's
action of termination at face value , as its letters to the employees expressly stated
they would be terminated if they did not respond 11
With respect to the employees whom the Company reached by telephone, the
testimony is in conflict as to whether the Company advised each of them of their
termination if they did not return . I think it probable that the Company did so
advise them. In the first place, the Company was apparently following the advice
of counsel in this matter , and it seems reasonable to infer that it followed in its
telephone contacts the same form used in the letters. Second , the Company intro-
duced into evidence the list used by Moratz and Scanlon in reaching the laid-off
employees . Where the list indicates that the employee was reached by telephone and
that she refused to return to daywork , the word "quit" is written on the page imme-
diately beneath the statement of the employee 's reply. Finally the payroll records
of many of those employees were also marked "terminated ." I find that the Com-
pany treated the employees who responded that they could not accept daywork in
the same fashion that it treated employees who failed to respond to the letters sent
them, and that all those employees were "terminated ." The fact that some were
rehired for nightwork the following April, and that the Company did not at that
"General Counsel urges that if the Company terminated the employment of these
laid-off employees without bargaining with the Union over that change in status the Com-
pany then violated Section 8(a) (5), and the termination should not be given legal effect.
This is tantamount to arguing that an employer whose employees are represented by a
union violates Section 8 ( a) (5) every time he discharges an employee for cause unless he
first bargains with the Union over the discharge As I understand the law , the em-
ployer in such a case fulfills his bargaining obligation if after the discharge he honors
whatever request the Union may make to bargain over the matter, whether under a con-
tractual grievance procedure ( existent here but not invoked ) or pursuant to a special
request to bargain.
MOORE'S SEAFOOD PRODUCTS, INC. 697
time require new applications or new withholding tax forms or pay them beginner's
wages does not overcome the evidence of "termination" manifested by the Company's
letters and records.12
I conclude, in short, that the laid-off employees who did not return to work in
January or February were thereupon terminated, and that the Union accordingly
did not represent a majority of the employees in the bargaining unit on March 1,
1964, before the commission of any unfair labor practices, or thereafter. It follows
that the Company's refusal to bargain the following May, and its delaying bargain-
ing tactics in March were not unfair labor practices.
III. THE REMEDY
I shall recommend the customary relief for violations of Section 8 (a) (1) ; namely,
the issuance of a cease-and-desist order, and a directive to post an appropriate notice.
The violations of Section 8(a)(1) in this case were committed at every step of the
supervisory hierarchy from a relatively minor supervisor to the company president.
Indeed, it is only the merest accident that they did not involve the Company in a
violation of Section 8(a)(5). In view of the widespread character of the violations
and the fact that they impinged on other sections of the Act as well (e.g., a sugges-
tion of a company union, and a threat that union adherence placed one's neck in a
vulnerable position), I believe that a broad cease-and-desist order is appropriate in
this case.
CONCLUSIONS OF LAW
1. By urging through a supervisory employee that employees sign a petition
expressing their opposition to a union, by prohibiting employees from conversations
about the Union during nonworking time, by suggesting through supervisors that
the employees create an "inside" union, by interrogating employees as to what they
knew about union meetings and union communications to employees, and by threats
that an employee who remained in the Union was sticking his neck out, the Company
engaged in unfair labor practices affecting commerce within the meaning of Section
8(a) (1) and Section 2(6) and (7) of the Act.
2. The Company did not unlawfully refuse to bargain with the Union.
RECOMMENDED ORDER
Accordingly, upon the foregoing findings and conclusions and on the entire record,
and pursuant to Section 10(c) of the Act, it is recommended that Respondent,
Moore's Seafood Products, Inc., Fort Atkinson, Wisconsin, its officers, agents, suc-
cessors, and assigns, shall:
12 An exception must be noted in the case of Helen Libakken. According to Scanlon's
initial testimony, Libakken was one of the employees he telephoned in January or early
February, and upon learning that she could not work days, he marked her employment
record as terminated. Libakken testified that Moratz, not Scanlon, telephoned her, and
that her response was that she had been ill, was still under doctor's care, and would get
in touch with the Company when she was able to work Later during the hearing, both
Moratz and Scanlon testified that Moratz could have made the call. The notes in-
troduced in evidence by the Company show as to Libakken, "cannot work because of being
under doctor's care. Husband said no " They contain no reference to inability to work
days, and no notation of "quit." Scanlon marked Libakken's employment record
"terminated. Cannot work nights [sic]. Call her when we start a night shift." I
cannot under all the circumstances accept his testimony that he made that notation
immediately after his alleged telephone conversation with her This in turn casts some-
thing of a cloud over all of Scanlon's testimony, which is scarcely lifted by the conflict
between his testimony and that of two other laid-off employees, Klietz and Schneider,
both of whom testified that Moratz and not Scanlon telephoned them about returning
to daywork. But the critical issue is not Scanlon's credibility, nor even when he marked
the payroll records "terminated," but whether the Company In fact terminated the em-
ployment of the laid-off employees when they failed to return to daywork. I find that
the letters and the records, including the records of the telephone calls, establish such
termination. Libakken's case may be excepted from that conclusion, and she should be
included in the unit to which she actively returned in April. This raises the total in
the unit as of March 1 to 77 The Union had the support of 38 (including Scliueler and
Libakken but excluding the 6 defectors discussed above).
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Asking its employees to sign petitions disavowing their support of Amal-
gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any
other labor organization.
(b) Prohibiting employees from engaging during nonworking hours in conversa-
tions about the above-named or any other union.
(c) Suggesting that employees form an "inside" union of their own.
(d) Interrogating employees concerning union meetings and other union matters.
(e) Threatening employees that their safety or security would be jeopardized by
their support of the above-named or any other union.
(f) In any other manner interfering with , restraining , or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Post at its place at Fort Atkinson, Wisconsin, copies of the attached notice
marked "Appendix." 13 Copies of such notice, to be furnished by the Regional
Director for Region 30, shall, after being duly signed by an authorized representa-
tive of the Respondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 30, in writing, within 20 days from
the date of the receipt of this Decision what steps the Respondent has taken to com-
ply herewith.14
13 In the event that this Recommended Order is adopted by the Board, the words "As
Ordered by" shall be substituted for "As recommended by a Trial Examiner of" in the
notice. In the further event that the Board's Order is 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 of" shall be inserted immediately following "As Ordered by".
"In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read, "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL NOT circulate petitions among our employees, or urge them to sign
petitions, which recite that the employees do not wish to be represented by
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, or by any other union.
WE WILL NOT prevent the union stewards or any other employees from engag-
ing in conversation about that union or any other union during nonworking
hours.
WE WILL NOT suggest to our employees that they form an inside union.
WE WILL NOT question our employees about the meetings or other activities
of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, or of any other union.
WE WILL NOT threaten our employees that support of that Union or any
other union will endanger their safety or security.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to join or assist Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-CIO, or to refrain from so
doing.
MOORE'S SEAFOOD PRODUCTS, INC.,
Employer.
Dated.------------------ By-------------------------------------------
(Representative) (Title)
INT'L SHOE CORPORATION OF PUERTO RICO 699
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 , Second
Floor, Commerce Building, 744 North Fourth Street, Milwaukee , Wisconsin, Tele-
phone No. 272-8600, Extension 3860 , if they have any questions concerning this
notice or compliance with its provisions.
International Shoe Corporation of Puerto Rico and Sindicato
Obrero Insular (S.O.I.). Case No. 24-CA-1947. May 19, 1965
DECISION AND ORDER
On December 9, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Respondent filed exceptions to the Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the excep-
tions, and the brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
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 Order recommended by the Trial Examiner and orders that
the Respondent, International Shoe Corporation of Puerto Rico, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 stat. 136), herein called the Act, was heard before Trial Exami-
ner Eugene E. Dixon at Santurce , Puerto Rico , between August 27 and 31, 1964,
pursuant to due notice . A complaint, issued by the representative of the General
Counsel for the National Labor Relations Board (herein called the General Counsel
and the Board ) on August 6, 1964, and based upon charges filed by Sindicato Obrero
Insular (S.O.I.), herein called the Union , on June 16 and July 31, 1964, alleged that
152 NLRB No. 74.