Peterson Brothers, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1963

144 N.L.R.B. 679 (N.L.R.B. 1963)

PETERSON BROTHERS , INC . 679
It is further recommended that Petitioner's objections Nos. I, II, and III to conduct
of certain law enforcement officers of the city and county of Gonzales, Texas, be
overruled.
It is further recommended that the election held on October 13, 1962, in Case
No. 23-RC-1949 be set aside, and that said case be remanded to the Regional
Director for the Twenty-third Region of the Board to conduct a new election at
such time as he deems that circumstances permit the employees' free choice of a
bargaining representative.
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 interrogate any of our employees with respect to their views
concerning, or sympathies for, General Drivers and Helpers Local Union No.
657, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization.
WE WILL NOT threaten to discharge our employees, threaten to close down
the plant "if the Union" came in, or the job security of our employees in any
manner because of their union or concerted activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in
any union activities.
All our employees are free to become or remain members of General Drivers and
Helpers Local Union No. 657, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other union, and they are
also free to refrain from joining any union.
FORT WORTH POULTRY & EGG CO., D/B/A
AMERICAN POULTRY AND EGG 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, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 271, if they have any question concerning this notice or com-
pliance with its provisions.
Peterson Brothers , Inc. and International Brotherhood of Boiler-
makers, Iron Ship Builders , Blacksmiths, Forgers and Help-
ers, AFL-CIO, Local 433
Diversified Products Company and International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers , AFL-CIO, Local 433 and E. Harvey Jayne. Oases
_Nos. 1,0-CA-2354, 1?-OA-2355, and 12-CA-2424. September 19,
1963
DECISION AND ORDER
On February 5, 1963, Trial Examiner Ramey Donovan issued his
Intermediate Report 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
144 NLRB No. 65.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and take certain affirmative action, as set forth in the attached In-
termediate Report. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices al-
leged in the complaint. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report together with
supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the Trial Examiner's railings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs, and
the entire record in this case,, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the follow-
ing modifications :
1. The refusal to bargain.
(a) The appropriate unit: We find in agreement vN ith the Trial
Examiner, that the multiplant unit in which the T7nion claimed major-
ity representative status, first in its request for recognition and then
in its original and amended petitions, is an appropriate unit. The
fact that the Union later entered into a consent-election agreement for
separate plant units in no way detracts from a finding, based on the
evidence considered by the Trial Examiner, that the multiplant unit
is also appropriate.
(b) The Un;on's majority; On April 5, 1962, when the Union re-
quested recognition on the basis of authorization cards signed by a
majority of the employees, there were 51 employees in the appropriate
multiplant production and maintenance unit. The Union had in its
possession 30 authorization cards of employees then in the init. The
Trial Examiner rejected ,3 of these 30 cards as not evidencing an actual
intent to designate the Union as the majority representative, and
failed to count a fourth card, that, of employee Brown. His failure
to count Brown's card was apparently inadvertent since Brown was
employed on April 5, 1962, Respondent stipulated to the authenticity
of his signature on the card bearing his name, and there is no testi-
mony putting the validity of his card in doubt.. Adding Brown's
card to the 26 valid designations found by the Trial Examiner makes
a clear majority of 27 in a unit of 51. However, that figure includes
four cards which the Respondent contends are invalid, and excludes
three cards rejected by the Trial Examiner, which the General Counsel
contends should also be included. The seven cards whose validity for
designation purposes has thus been put in issue may be divided into
two groups: Simpson and Jones; and Cross, Matthews, Rhodes,
Wright, and McElveen.
PETERSON BROTHERS, INC. 681
The Trial Examiner accepted as valid the cards bearing signatures
purporting to be those of Simpson and Jones. The Respondent has
excepted. Simpson cannot read, can write only his own name, and
permits his wife to sign for him on occasion. The Union sent an
authorization card to his home, which his wife signed on his behalf
and returned to the Union without first asking him whether he ap-
proved. He had told her about the organizational campaign then
being conducted and they had discussed its possible benefits. Simpson
testified he was annoyed when his wife told him what she had done,
but had made no attempt to recover the card or rescind her action.
Later, he told his son-in-law, who also worked at the plant, that lie
had sent in his card to the Union. Although Simpson may have
regretted his wife's action or the manner in which she proceeded,
when he first learned of it, we agree with the Trial Examiner that
Simpson's later conduct indicates that he adopted and approved the
designation of the Union in his name.'
It is admitted that Jones also did not personally sign the card bear-
ing his name. He denied that he had authorized anyone to do so for
him, but the Trial Examiner has credited the testimony of two other
witnesses that they attended a union meeting with Jones, in the course
of which he asked one of them to sign his name to the card. Other
information on the card, such as Jones' badge number, his address,
and telephone number were admitted by Jones to be correct. We see
no reason to upset the Trial Examiner's credibility finding that Jones
had authorized a fellow employee to sign his name to a designation
card at a union meeting. We therefore agree with the Trial Ex-
aminer in counting as a valid designation the card bearing the signa-
ture of Jones.
Of the remaining cards in issue, two, signed by Cross and Matthews,
were counted as valid designations by the Trial Examiner. The other
three, signed by Rhodes, Wright, and McElveen, were rejected by
the Trial Examiner, and not counted. The issue with respect to these
five cards is to what extent the reasons given by these employees for
signing affects the reliability of the designation represented by their-
signatures.
Each of the cards solicited from the employees at both plants, and
admittedly signed by these five employees, is headed "Authorization
for Representation." Immediately above the signature line is the
following :
I, ______________, hereby select the above named Union as my
collective bargaining agent.
I See Tinley Park Dairy Co , d/b /a Country Lane Food Sto, e, 142 NLRB 683 (Vim's
card).
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the bottom of the form appears this legend :
This is not an application for membership. This card is for
use in support of the demand by this Union for recognition from
the Company in your behalf, or for an NLRB election.
We note that the card explicitly states that it will be used as sup-
port for, or as selection of, the Union as bargaining agent. The only
reference to its use in obtaining an election is the final phrase, which
appears as an alternative to the Union's demand for recognition.
Although the Respondent contends that it advised its employees gen-
erally that the Union was requesting signatures to the authorization
cards only for the purpose of obtaining an election, we have no
reason to believe that, with the possible exception of 5 out of the
30 employees who signed these cards, the union adherents and agents
who solicited signatures induced anyone to sign by such an oral repre-
sentation. This is not a case, therefore, where the Union's campaign
for signatures was predicated on the representation to employees that
the only purpose of the designations was to obtain an election?
However, since rejection of all five cards would destroy the Union's
majority status, we must consider the nature of the representations
made to these individual employees and its effect on the validity of
their designations. The Trial Examiner appears to have attempted
here to determine whether each of these five employees signed his card
because he truly wanted the Union to represent him or because, not
yet having made up his mind, he preferred to wait for a secret election.
We do not, however, view that as the material issue here. The cards on
their face clearly and explicitly declare their purpose. If the cards are
to be voided on the ground that the employees were misled into believ-
ing the cards would be used for a different or more limited purpose,
this must be done on the basis of what the employees were told, not on
the basis of their subjective state of mind when they signed the cards.
In accordance with the foregoing, we agree with the Trial Examiner
that the cards signed by Cross and Matthews are valid designations
for the purpose of establishing the Union's majority. Neither em-
ployee was told that the only reason for asking him to sign a card
was to obtain an election. If these employees "understood" that an
election would be held, it must be attributed to other causes than a
misrepresentation by the Union.
The Trial Examiner found that the designation cards signed by
Rhodes and Wright were not valid designations for they Union.
Rhodes was visited at his home by a union business agent who told
him that the Union was attempting to represent .the employees at the
2 Englewood Lumber Company , 130 NLRB 394; Morris & Associates, Inc., 138 NLRB
1160; cf . Fred Snow, et al., d/b/a Snow & Sons, 134 NLRB 709 , 710; Gorbea, Perez &
Moreil, S. en C ., 133 NLRB 362, enfd. In this respect 300 F. 2d 886 ( C.A. 1) ; Koehler's
Wholesale Restaurant Supply, 139 NLRB 945
PETERSON BROTHERS, INC 683
plant. He first refused to sign a card because of his feeling of loyalty
to the Company for never having laid him off. The business agent
then asked him to sign so that the Union could have an election,
without regard to how he might then vote. Rhodes again refused to
sign, but later asked a fellow employee for a card which he then read,
signed , and returned to the Union. The Trial Examiner believed that
Rhodes had not meant to designate the Union as his representative,
but had signed the card on the basis of the Union's premise that it had
nothing to do with whether one was pro- or anti-unionb ut was simply
a means of obtaining an election, or that Rhodes' action was ambiguous
and that the General Counsel had not carried his burden of proof.
Chairman McCulloch and Member Fanning think this relies too
heavily on Rhodes' subjective understanding as to the effect of the
card. Since Rhodes knew that the cards could also be used as a basis
for establishing majority status without an election, they believe that
his signature is an authorization to the Union to proceed either through
designation and voluntary recognition or through the election pro-
cedure. They would therefore count Rhodes' card as a valid designa-
tion. As Member Leedom agrees with the Trial Examiner, he would
not count Rhodes' card,as a valid designation.
As to Wright, the record shows that the union business agent asked
him to sign a card as the employees would like an election. Wright
testified that he had not yet made up his mind whether he was in favor
of the Union when he signed, but he also said he knew that by signing
the card he was authorizing the Union to represent him. We believe
and find, unlike the Trial Examiner, that Wright's card should be
counted as a valid designation since he knew that it could be used
for that purpose.
We agree with the Trial Examiner, however, that the card signed by
McElveen does not validly designate the Union as his representative.
McElveen had twice refused to sign a card at the solicitation of union
representatives. The third time he was solicited they told him that
signing a card would not affect his views with respect to the Union,
that it did not mean that he would be voting for it, and that if he
wanted his card back he would be able to get it if enough cards had
been signed so as to get an election. It is clear that representations
were made to McElveen that the only reason he was being asked to
sign a card was to help obtain an election, and that his original op-
position to the Union would not in any way be compromised if he
signed a designation card.
To the 26 cards counted by the Trial Examiner as valid designa-
tions, Chairman McCulloch and Member Fanning would add those of
Brown, Rhodes, and Wright for a total of 29 in a unit of 51 employees,
while Member Leedom would add those of Brown and Wright for a
total of 28.
-684 DECISIONS OF NA11ONAL LABOR RELATIONS BOARD
(c) Respondent's doubts as to the Union's 7nago9sty status: We
agree with the Trial Examiner that in taking the position that the
Union could secure recognition from it only following an election,
Respondent refused to consider that the Union was legally entitled
to recognition as collective -bargaining agent if it had valid designa-
tion cards signed by a majority of the employees . Moreover, any
contention by the Respondent as to its good -faith doubt of the Union's
majority is refuted by the Respondent 's entire course of conduct, as
set out in detail in the Intermediate Report. The incidents of un-
lawful interrogation , threats of loss of benefits , and the grant of an
apparent benefit in setting up a grievance committee procedure in
February 1962, indicate that the Respondent refused to recognize the
Union, not because it doubted the Union's representative status, but
because it was seeking to forestall collective bargaining with the Union
in violation of its obligation under the Act.'
2. The Trial Examiner recommended dismissal of the 8 ( a) (3) al-
legations of the complaint, finding that the General Counsel had not
sustained his,burden of proof with respect to the discharges of Spires,
Bullington, and Jayne . Although we agree with the Trial Examiner
that the circumstances surrounding the dismissals of Spires and Bull-
ington give rise to suspicion as to Respondent 's motivation in dis-
charging them, we also are not persuaded that any of them were
selected for discharge for discriminatory reasons.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
3 Member Leedom would not find the Respondent's statement that it would start bargain-
Ing from scratch and with a blank piece of paper if the Union secured bargaining rights
to be a violation of Section 8(a) (1) However, the other 8(a) (1) findings made by the
Trial Examiner are, in his opinion, sufficient to justify the finding herein that Respond-
ent had no good-faith doubt of the Union's majority status in view of its efforts to
undermine its status
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths , Forgers and Helpers , AFL-CIO, Local 433, herein called
the Union , the General Counsel of the National Labor Relations Board issued an
amended complaint on August 31, 1962. The complaint alleges the illegal discharge
of three-named employees in violation of Section 8(a)(3) of the Act. It is further
alleged that the Union represented a majority of production and maintenance em-
ployees in the plants of Peterson Brothers , Inc . and Diversified Products Company,
herein called Peterson and Diversified , respectively , as Respondent collectively, an
appropriate unit, and in the Peterson plant, an appropriate unit. The averment
is that the Union has requested recognition from and bargaining with the Respond-
ent 1 by reason of the Union 's status as bargaining representative in the aforenamed
units. Respondent has refused to recognize and bargain with the Union as the
I The amended complaint alleges that Peterson and Diversified operate as a single inte-
grated enterprise and constitute a single employer. Respondent in its answer to the
amended complaint admits these allegations.
PETERSON BROTHERS, INC. 685
statutory representative and is alleged to have sought to undermine the Union by
discharges , threats , promises , and interrogation and by other conduct violative of
Section 8 ( a)(1) of the Act and to have also violated Section 8 ( a)(5) of the Act.
In its answer Respondent denies the commission of unfair labor practices as alleged.
A hearing was held in this matter in Jacksonville , Florida, on October 9, 10,
11, 12, and 23 , 1962, before Trial Examiner Ramey Donovan. All parties par-
ticipated fully in the hearing and the General Counsel and the Respondent have
filed briefs?
Upon the entire record in this case , and from my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT
1 The business of the Respondent
Peterson is an Ohio corporation of which Frank Peterson is president and a
member of the board of directors . Diversified Products Company was , until No-
vember 6 , 1960, D iversified Products , Inc., at which time C was dissolved as a corpo-
ration. Since the aforementioned date Diversified has been a division of Peterson
and is wholly owned by Peterson.
The Peterson plant and the Diversified plant are both located in Jacksonville,
Florida , about 6 miles apart.3 Peterson manufactures boat trailers and motor
scooters . During the past year Peterson purchased and received goods and materials
valued in excess of $50,000 from points outside Florida and shipped finished prod-
ucts valued in excess of $50,000 from its Jacksonville plant directly to locations
outside Florida Diversified manufactures boat trailer winches , tilt jacks for boat
trailers which are used on Peterson boat trailers and also by other boat trailers. In
addition , Diversified makes parts for the motor scooters of Peterson , blowers for
fallout shelters which are sold by Peterson , and vanous tools and parts for other
purchasers . Diversified , in the past year, in the course of its operations , shipped
finished products valued in excess of $ 50,000 to locations outside Florida.
I find that Respondent Peterson , and its division , Diversified , is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act and within the Board's
jurisdictional criteria.
2 The unit
Since one of the issues in this case is an alleged refusal to bargain by Respondent,
it is necessary to consider the evidence regarding appropriate unit.
We have , in the preceding section , considered generally the nature of Respondent's
business . Frank Peterson , as we have seen , is the president of the corporation
(Peterson ) that operates two plants in Jacksonville , Diversified and Peterson Di-
versified is a division of the Peterson corporation and is wholly owned by the latter.
Read is plant manager of Peterson and Seiple is plant superintendent At Diver-
sified , Spring is plant manager and Brunetti is plant superintendent In addition
to the foregoing each plant has a number of lower supervisors
As of April 5, 1962. a pertinent date , the production and maintenance depart-
ments and the number of employees therein at each plant were as follows
Peterson Diversified
Pressroom -------------- 4 Production department-------- 7
Assembly department----- 7 Assembly department--------- 2
Custom shop------------- 2 Too] crib attendant ----------- 1
Paint department--------- 4 Maintenance ---------------- 1
Packing and shipping------ 10 Tool department------------- 2
Pickup assembly --------- 2 Welding department ---------- 2
Special products department Tanitor and general helpers----- 2
(scooters ) ------------ 1 Truckdriver ----------------- 1
Maintenance ------------ 1 --- -Total 18
Receiving department----_ 2
--------------- -
Total ---------------- 33
2 The posthearing motions of the General Counsel and Respondent to correct the tran-
script of testimony ns specified are respectively granted Additionally , page 645 , lines 5-9,
should read " it seems to me that since neither the Board nor a court would have
the onnortunity of hearing the witness testify on the stand and to compare voices on the
tape . I will state .11
3 Peterson has a plant In Fort Wayne , Indiana , that is unionized and is not involved in
this proceeding
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pressroom employees at Peterson were machine (drill press) operators 4'
The employees in the assembly department and the custom shop were welders .5
The other departments, such as paint department, packing and shipping, and so,
forth, are self-explanatory. The special products department or scooter assembly
involved the assembling of motor scooters. As described by Plant Manager Read,
the scooter assembling work consisted of the front fork assembly, including the
front wheel axle, the axle grips, and handle grips; the frame assembly, including
mounting the motor to the motor base, rear wheel, rear wheel axle, nuts, washers,
chain brake band, and throttle control arm, foot pedals and rubber guards on the
foot stands, and scooter stands, seat, and license plate bracket. At Diversified, the
various departments above listed are for the most part self-explanatory. Diversified,
according to President Peterson, employed welders and drill press operators com-
parable to those in the Peterson plant. Both plants employed assemblers, with
those at Diversified dealing with smaller components than those assembled at
Peterson. At Diversified there is some equipment and machines that are not found
in the other plant, such as turret lathes, milling machines, and others. The seven
men listed in the Diversified production department operate these machines, including
drill presses .6 These machine operators, as well as two men in the tool department
who perform tool and die work, are skilled workers. In addition to building winches
and jacks for boat trailers for Peterson and others, Diversified repairs and reworks
dies that are required by Peterson, builds axles, gas pedals or rods, and brake bands
for the Peterson motor scooters, makes blowers or fans for fallout shelters marketed
by Peterson, and does subcontract work or jobbing for other manufacturers or
customers.
Plant Manager Spring of Diversified testified credibly that he set the wage scale
for Diversified employees and that Diversified did its own hiring and firing of em-
ployees and paid employees with checks drawn on a separate Diversified account.
President Peterson testified that he was familiar with Diversified' s operations and
that he went over financial statements with Spring regarding the strength or weak-
ness in the Diversified operation. As a division of the Peterson corporation, it is
my opinion that Diversified's basic responsiveness to the corporation's chief execu-
tive officer, directors, and owners of the corporation, is apparent. Except for a
truckdriver who made one or more trips each day between the two plants there
was no daily contact between the employees of the two plants and Peterson plant
parties were not attended by Diversified employees.
However, it does appear from a manual issued by Frank Peterson that there is
a common employee or labor relations policy for both plants. The aforementioned
document introduces itself in the following words: "This is a brochure outlining and
reaffirming the company policies. . . 7 Today employees of Peterson Bros. and
Diversified Products have an employee program that is comparable to any. . .."
There are additional references to "the Company" and its policy toward employees.
The working hours at both plants are 8 a in. to 4:30 p.m., with the lunch period,
12 to 12:30 p in. The pay periods and the payday are the same for both plants
and the accounting department prepares the checks. Overtime provisions are the
same , including provisions for double time on holidays and two and one-half times
for holiday overtime. Regulations for accidents including recourse to the company
doctor are the same. Provisions for discharges, layoffs, and resignations are the
same for the employees of the corporation. Holidays are the same, as are vacations,
a group insurance health program, an educational assistance program. a safety shoe
purchase program, and a complaint or grievance procedure. There is a section of
the aforementioned brochure entitled "Transfers Between Divisions" which states:
It has long been the desire of the Company to provide continuous employ-
ment for all of its people. As a result we sometimes transfer employees back
and forth from Peterson Bros. Jacksonville plant and Diversified Products rather
than layoff the employee . . . In case of a layoff of a given employee, the
supervisor or plant manager will check with the other to see if the employee in
question is needed at the other plant. . This practice promotes continuous
employment with no break in any of the benefits such as earned vacations,
hospitalization, etc.
This last-mentioned policy of transfer between the plants was emphasized by
Respondent during the union campaign , discussed below, as one of the advantages
* E g, Rhodes, Grant, Jones.
5 E 9, Simpson, Rollins, Martin, Bennett, McElveen
8For Instance, Parker , who is to the production department, listed his job as press
operator an his union card.
7 Emphasis supplied.
PETERSON BROTHERS, INC. 687
,of working with Respondent in its nonunion status.8 There is also evidence of
specific instances of interchange between the two plants at various levels. Rollins, a
welder at Peterson, was laid off for about a week in 1961. His supervisor at Peter-
son, Holden, sent for him and told him that McCauslin, a supervisor at Diversified,
had called Holden for a welder. Rollins then was sent to McCauslin, worked for
5 or 6 weeks at Diversified, then transferred back to Peterson where work had picked
-up. Britt, a Diversified employee, testified without contravention that in 1961
"a few" Diversified employees had been sent to the Peterson plant to perform some
work. Britt also said that he had been requested to go to the Peterson plant to work
but he had declined. President Peterson testified that the industrial engineer at the
Peterson plant, McCauslin, was put to work at Diversified in purchasing and
scheduling work. This came about as a result of an economy move at Peterson
'combined with the fact that President Peterson had learned from Spring, the plant
manager of Diversified, that Diversified needed someone to handle purchasing and
material scheduling. On another occasion, as a result of consultation between the
plant managers of the two plants "and approved by myself [Peterson]" an engineer
at Peterson was assigned to Diversified and the engineer at Diversified was assigned
to Peterson. Spring testified that Hogan, who formerly worked at Diversified and
who signed checks at that plant in Spring's absence, was presently working at the
Peterson plant.
Based on the foregoing facts, including the common ownership of the Respondent's
two plants, the integrated nature of the operation, the uniform labor relations policy,
the uniformity of employee benefits, and the policy of interchange between the two
plants at both the managerial and employee level, I am persuaded and find that the
single multiplant unit of Peterson and Diversified constitutes an appropriate unit
within the meaning of Section 9(a) and (b) of the Act. The presence of some
factors favorable to single plant units, such as the lack of daily association between
the employees, a degree of local managerial autonomy, and the fact that some, but
by no means all, of the Diversified employees are more skilled than other production
and maintenance employees,9 are not, in my opinion, more cogent than the contrary
factors, nor is the geographical separation significant, both plants being in
Jacksonville.10
In its brief Respondent asserts that because the Union and Respondent on April 30,
1962, consented to an election in two separate units all parties are "estopped" to
deny "the propriety of two units." 11
The history of the instant unit claim is that on April 5, 1962, by letter, the Union
claimed to represent a majority of Respondent's production and maintenance em-
ployees in Respondent's two plants and requested recognition from Respondent on
that basis. Respondent, on April 7, declined to grant the requested recognition.
The Union filed with the Board a petition for certification on April 13, 1962, describ-
ing the unit as it had on April 5, namely, a single unit of the production and
maintenance employees at the two plants. Apparently at the suggestion of the
Board's Regional Office the Union filed an amended petition on April 17. It again
described the unit as in its original demand to Respondent and as in its initial
petition but added a footnote to the described unit The footnote stated that if the
Board determined that the single multiplant unit was inappropriate, the Union then
desired two units, one at each plant. On April 30, 1962, the parties executed two
consent-election agreements, one for each plant, with the respective plants consti-
tuting separate units. The election was scheduled for May 18. On May 15 and
thereafter the Union filed charges of unfair labor practices against Respondent.
By reason of the aforesaid charges the election was not held and the General Counsel
subsequently issued a complaint.
I am unable to agree with Respondent that the unconsummated agreement for a
consent election between the Respondent and the Union is determinative on the
question of appropriate unit in this proceeding. The fact that under the circum-
8At the hearing President Peterson reaffirmed the transfer policy between plants as
stated in the manual.
O The Union organized and obtained authorization cards from employees at both plants,
including cards from the more skilled groups at Diversified, such as toolmakers, welders,
and machine operators, and at Peterson, such as welders, assemblers, and press operators,
as well as from less skilled production and maintenance employees at both plants
'u Field Paper Box Co, 130 NLRB 22, 23; Weyerhauser Company, 132 NLRB 84, 85;
Musgrave Manufacturing Company and Mast-Foos Manufacturing Company, Inc, 124
NLRB 258, 259; Greene Construction Company, and Tecon Corpo, ation, a Joint Venture,
133 NLRB 152, 153-154.
"Citing Parkhurst Manufacturing Company, Inc., 136 NLRB 872.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances described there was such an agreement is a factor that I have considered but
I cannot regard it as determinative. Quite clearly the parties could consent to and
could have an election in either a single multiplant unit or in separate plant units.
Because they obviate the necessity of a Board hearing and facilitate the determination
of petitions for certification by a consensual election, the Board customarily approves
such arrangements and agreements "unless they contain provisions which contravene
the statute or established Board policy, even though the Board might not have found
the unit stipulated therein appropriate had the case been contested before it on its
merits." 12 By the same token, the objective and purpose of a consent-election
agreement, as the term itself indicates, is to have a fair election and a certification
of results; when the matter has been thus finalized neither party is in a position
to thereafter attack the certification on the basis that the unit previously agreed upon
is inappropriate absent contravention of the statute and established policy.13
The instant case does not present a situation comparable to the foregoing rationale
relating to consummated consent elections which the Board recognizes as promoting
stability in labor-management relations and as means for expediting the settlement
of labor disputes. Here the Board, consistent with its well-established practice, has
refused to conduct an election, pursuant to the consent agreement, because of the
filing of unfair labor practice charges and the issuance of a complaint, the theory
being that Respondent's conduct has made a fair election impossible and that Re-
spondent's refusal to recognize the Union as the bargaining agent in an appropriate
unit was not based on a good-faith doubt regarding the Union's bargaining status.
The evidence also indicates that the Union's initial and primary contention was
that a multiplant unit was appropriate. This was the only unit in which it requested
Respondent to accord it recognition without an election. Faced by Respondent's
refusal, the Union sought the same unit through a petition for certification and then
hedged its position by seeking first the multiplant unit, or, if this was deemed in-
appropriate by the Board, it requested two units Without revoking its demand for
recognition in the multiplant unit without an election on the basis of its claimed
majority, the Union eventually consented to single plant units pursuant to an election
to be held by the Board. There was no similar claim made on Respondent for
recognition without an election in single plant units.14 The election contemplated
by the consent agreement was never held.15
3. The issue of majority
The Peterson plant payroll of April 5, 1962, contains 33 production and main-
tenance employees . The Diversified plant payroll of the same date lists 18 pro-
duction and maintenance employees. The Union submitted 23 signed authorization
cards bearing names of employees on the above Peterson payroll , all signed no later
than April 5, 1962; 16 there were 7 signed authorization cards bearing names of
employees on the above Diversified payroll, all signed prior to April 5, 1962.17
Davenport, a union staff representative and organizer identified 15 of the Peterson
cards and all the Diversified cards as having been signed in his presence. The
General Counsel called as witnesses six Peterson employees who identified their
cards and signatures thereon . The total cards identified were therefore 15 plus 6
at Peterson and 7 at Diversified or 28 overall in the multiplant unit of 51.
12 Twenty-sixth Annual Report of the National Labor Relations Board, 1961, p 55.
13 In the Parkhurst case, above , an election and certification had taken place pursuant
to a consent-election agreement . In a subsequent unfair labor practice case the employer
for the first time challenged the appropriateness of the unit and was foreclosed from
doing so
14A petition for certification is a demand for recognition The Union's petitions all
sought the multiplant unit The amended petition referred to the single plant units as
an alternative if the Board determined the multiplant unit to be inappropriate No such
determination has been made The letter written to Respondent on April 5 requested
recognition in the multiplant unit. No other letter was written.
15 Elsewhere , we must consider the question , inter alia, whether there was a refusal to
bargain between the Union's initial demand for recognition in a multiplant unit on April 5
and the consent agreement on April 30 as well as thereafter.
"Most of these cards bore various February 1962 dates; only one card was signed as
late as April 5, 1962.
17 The total of Diversified cards was nine. Two of these cards , Bryan and Isaacs, were
from employees who had been terminated in the latter part of March 1962 and who
therefore were not on the April 5 payroll.
PETERSON BROTHERS, INC. 689
As a part of its case the Respondent called as its own witnesses certain Peterson
employees whose cards were among those previously identified as aforedescribed.
The individuals and the evidence relating to them is as follows:
Rhodes: He was the last Peterson employee to sign a union card of those whose
cards have been adduced in support of the Union's majority claim on April 5, 1962.
Rhodes' card is dated April 5. Rhodes testified that Groton, a union representative,
first spoke to him in his home about signing a union card 18 Rhodes was told that
the Union was attempting to represent the employees in the plant concerning wages,
hours, and working conditions. Rhodes informed Groton that because he had
worked for Peterson about 6 years and had never been laid off, Rhodes did not feel
it was right for him to sign a card. Groton asked Rhodes to sign a card before he
left. Rhodes said nothing except that he did not think it was right. Groton said,
"The only thing I'm asking you to do is sign the card; regardless of how you vote-
I would like for you to sign the card so that we could have the election." The date
of this conversation does not appear but Rhodes did not sign a card on that occasion.
Subsequently, Rhodes asked a fellow employee, Bennett, for a card and after reading
it he signed and gave it to Bennett. This was apparently on April 5.19
On cross-examination by the General Counsel, Rhodes admitted that he had been
aware that the Union was attempting to represent the employees regarding wages,
hours, and conditions of employment:
Q. And that they were trying to go around to get the support of the employees
so that they could represent wages, hours and working conditions?
A. For the election?
Q. That's right. And you know there was no union representing the em-
ployees in the plant, didn't you?
A. That's right.
Q. And you knew that by signing the card you were in fact helping the Union
to represent-in representing you; is that correct?
A. Well, if they had had the election, yes.
Q. You knew that by signing this card you were no longer neutral but you
were in fact helping them to represent you?
A. That's right.
When employees vote for a union in a Board election their vote means that they
select the union as their bargaining agent to represent them in obtaining recognition
from the employer and to bargain with the employer as their representative regard-
ing the legitimate subjects of collective bargaining. Absent an election, it is incum-
bent upon the General Counsel to establish by a preponderance of the evidence, in
a situation such as is here presented, that Rhodes, by signing the card, did, in effect,
what he would have done by voting for the Union in a Board election as described
above.
Rhodes had refused to sign a card because of his sense of loyalty to his employer.
As far as the evidence shows, no counterreasoning or argument was presented to
Rhodes to cause him to change his position except that presented by Groton. Rhodes'
testimony indicates, in my opinion, that when he eventually signed a card he was
probably acting on the premise presented by Groton. That premise was that signing
"Groton did not testify.
19 The union cards are printed and read:
AUTHORIZATION FOR REPRESENTATION
International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers
AFL-CIO
Fill All Blanks Date______________________
I, the undersigned employee of
---------------------------------------------------------------------------
(Name of Company)
hereby select the above named Union as my collective bargaining agent
Signature of Employee-------------------------------------------------------
Name of Employee-Please Print______________________________________________
Home Address---------------------------------------------------------------
City------------------------------------------------- State----------------
Class of Work--------------------------------------------- Shift----------
Telephone No__________________________________ Badge or Clock No________-_
This is not an application for membership. This card is for use in support of the
demand by this Union for recognition from the Company in your behalf, or for an
NLRB election.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a card had nothing to do with whether an individual was in favor of the union
movement or whether he felt a sense of loyalty to the employer that moved him to
reject the Union; the card signing was divorced from the issue of pro- or anti-union
sentiment and was simply a means of obtaining an election. In any event, whether
the foregoing was or was not the fact the situation is a least ambiguous and doubt or
ambiguity or even equally balanced hypotheses are not sufficient to sustain the burden
of the General Counsel in establishing that Rhodes' signed card was the substantial
equivalent of a designation of the Union as his agent or a definitive designation to
obtain recognition and bargaining.
In this connection I do not regard the fact, in the circumstances presented, that,
by signing a card Rhodes was not being as neutral as he would have been if he had
not signed a card and that he was rendering more help to the Union and its objectives
than would have been the case if he had not signed, as altering my conclusion. The
issue is not neutrality or whether an employee is well disposed toward the Union or
even whether he would like it to succeed. The question is, has the employee desig-
nated the Union as his collective-bargaining agent to secure recognition from the
employer and to bargain collectively with the employer on his behalf.20
Finally, the card itself, in conjunction with the testimony of Rhodes, stands for
an ambiguous result or a net result that Rhodes signed the card designating the
Union as his collective-bargaining agent for the limited purpose of enabling the Union
to obtain an election.21 For reasons previously stated, I do not believe that this is
sufficient to establish that Rhodes had designated the Union as his bargaining repre-
sentative to secure recognition from Respondent and to bargain with the Respondent
regarding wages, hours, and conditions of employment 22
Mitchell Wright, Jr.: This employee of Respondent 23 testified without contradic-
tion that, in February, Groton came to his home with a union card.24 Groton said
he was representing the Union and was "getting them to sign cards and the ones
that signed , would we like to have an election for the Union, and would I be inter-
20 Moreover, a position of less than absolute neutrality may be meaningless insofar as
designating genuine approval or disapproval. An individual may sign a petition to have
some proposal put to a vote of the Congress rather than to be disposed of in committee
even though the individual is firmly opposed to the proposal. By signing the petition he
is, in a sense, being less neutral than if he had refused to sign the petition but the signing
of the petition does not thereby mean that he Is not still opposed to the measure or would
not vote against it.
a When an employee is opposed to a union or does not wish to align himself with a
union because of loyalty sentiments or for some other reason, and is told that such senti-
ments are not inconsistent with signing a union card, since the latter is only a means of
obtaining an election, it is doubtful that such a card is consistent with the Board's elec-
tion procedure or with the unfair labor practice procedure under Section 8(a) (5) of the
Act. The Board's election requirement that the petition be supported by a minimum
30 percent showing of interest is to insure in some degree that the petitioner has a reason-
able expectancy of success in an election . Without such a preliminary showing a fruitless
expenditure of governmental time and money is presumably inevitable However, it is
apparent that the rationale of the showing of interest is that the petitioner, by its cards,
is demonstrating that it has at least that number of rather firmly committed followers
who can reasonably be regarded as petitioner's followers and adherents and as voters for
petitioner. If persons sign cards because they are simply asked to help obtain an elec-
tion and are told that the solicitor is not interested in whether they are opposed to having
a union or whether they vote for or against the union, the cards' significance is virtually
destroyed for any purpose.
-'-'This is not a situation of an employee testifying what he thought or did not think a
card meant or of having afterthoughts in the face of the clear meaning of the card jog
Silk Mills, Inc. v. N.L R B., 185 F. 2d 732, 734 (C.A.D.C.), cert. denied 341 U S. 914 ;
N L R B. v. Gorbea, Perez & Morell, S. en C., 300 F. 2d 886 (C.A. 1). Cf. Koehler's
Wholesale Restaurant Supply, 139 NLRB 945, where the union representative had not
told the employees that signing the cards was for the sole purpose of an election and
"specifically testified that he obtained the signatures with the understanding that the
employees wanted the Union to represent them." Further the cards in that case
read ". . . I hereby request membership in the above named Union and authorize said
union . . . to act for me as a collective-bargaining agent In all matters pertaining to rates
of pay, wages, hours of employment, and other conditions and terms of employment. . . .
See Morris & Associates, Inc., 138 NLRB 1160; Englewood Lumber Company, 130
NLRB 394.
23 He was no longer in Respondent's employ at the time of hearing.
24 All the cards were the same as that previously described.
PETERSON BROTHERS, INC. 691
ested in signing a card, and I signed a card." The witness was asked at the hearing
whether "At the time you signed the card had you made up your mind whether you
were for or against the Union?-A. No, sir, I haven't [hadn't] heard anything about
it." On cross-examination by the General Counsel the witness admitted that he
had read the card before he signed. Also:
Q. And when he [Groton] came in, you knew that he was trying to get you
to help him get enough cards to represent the employees? You knew that
didn't you?
A. I knew he was trying to get me to sign a card so he could hold an
election.
Q. And you knew by signing this card that you had authorized this union
representative to carry this card on to do whatever he could to represent
you. .
A. Yes, sir.
Looking at Wright's testimony as a whole I am not persuaded that the last question
and answer, in the context of his preceding answer and other testimony, is sufficient
to remove the doubts or the ambiguity regarding Wright's card as evidence that he
had designated the Union as his bargaining agent to secure recognition and to bar-
gain with the Employer, rather than as evidence of an expression of willingness to
help the Union secure an election. In my opinion, if the wording on the card was the
same as or equivalent to the card in the Koehler's Wholesale Restaurant Supply case,
supra, there would be valid ground on which to disregard Wright's testimony re-
garding any subjective lack of knowledge or misunderstanding as to what he knew or
did not know about the card and its purpose 25 and would leave the issue as between
the wording on the card and any representations made by Groton to Wright to
secure the signature. In relation to Wright's testimony and the statement made
to him by Groton the card's wording is not inconsistent with the conclusion that
he had selected the Union as his bargaining agent solely to secure an election. Other
interpretations or extensions of the foregoing are, of course, possible but, in my
opinion, they can be no more than equally valid interpretations and such a posture
is not enough on such an issue. In substance, I believe, it is necessary that when
an individual signs a card, the card and/or the circumstances must make it clear that
the individual has declared himself a union adherent and has designated the Union
as his agent to secure recognition and bargaining and has thereby in effect voted for
the Union. I am unable as the evidence before me to conclude that the foregoing re-
quirement has been met and my conclusion, therefore, is that Wright's card, like
Rhodes', must be rejected as evidence in support of the Union's majority.
William Cross: The witness testified that Davenport and another union representa-
tive visited him at his home and identified themselves. Cross and his visitors talked
about an hour, with the talking divided about 50-50 between Cross, on the one hand,
and his visitors. They talked about the Union. Cross told the representatives that
he had seen advantages in unions in the North as well as disadvantages and that, like
everything else, he thought a well-run union was a good thing but a poorly run one
was not. Among other things the union representatives referred to the subject of
the employees' working conditions and to their hope of improving them. Cross
testified that at the time of the visit and the conversation he was hoping that better
wages would be obtained by the Union coming in to represent the employees. The
union representatives said that there would be an election; they asked Cross to sign
a card and the election would then decide what the majority wanted. Cross testified
that when he signed the card he was hoping that "the Union could come in" and
represent the employees although he was aware that an election would have to be
held.
On the foregoing evidence I find that Cross had designated the Union as his
bargaining agent to obtain recognition and collective bargaining. His card should
be counted. The authorization was not limited to simply having an election. The
fact that an election was contemplated does not alter this conclusion. I do not
find that, as Respondent argues, Cross was misled. Ordinarily, employers do not
grant recognition without an election and there was no indication that Respondent
would act otherwise. In fact, if anything, Respondent's campaign to defeat the
Union confirmed the necessity of the election route. The salient fact is that Cross
had, in effect, cast his "vote" for the Union when he signed his card and did not limit
his designation to authority to secure an election. I agree with Respondent's con-
tention that employees can and should have the right to change their minds as a
25 1 g., the testimony by Wright that when he signed he knew nothing about the Union
and had not made up his mind whether he was for or against the Union.
727-083-64-vol. 144-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general proposition. But there is no evidence that Cross had changed his mind or
that the presumption of continuing validity does not apply to his card.26
Talmadge McElveen: McElveen testified that Union Representatives Davenport
and Warren visited him three times at his home. They explained some of the benefits
to be gained through the Union, such as a grievance procedure. McElveen testified
that the union representatives told him that if the Union "got to represent the people"
there would be a retirement provision. At the time, McElveen testified that he
thought the retirement provision would be a good idea. Retirement was the matter
that registered most with McElveen since "the rest, we already had... . At the
end of the first visit by the union representatives, McElveen told them he "would
think about it [signing a card]." He told them the same thing at the end of the second
visit. On the occasion of the third visit, before McElveen signed the card, he testified
that "they [the union representatives] said it wouldn't have any effect upon my views,
that it didn't mean I was voting for the Union; that they would have a vote-that
would have no effect. That was not a vote for the Union. And they said, that if I
got ready for that card back, I could go back there and get it-if enough cards were
signed there would be an election . . . . . . The witness stated that he signed the
card on the third visit because "they was there at my house in the evening when
I got off of work and it was mostly to get rid of them. They was there." He also
stated that he was "against" the Union when he signed the card.
In the course of cross-examination McElveen admitted that he knew that his
visitors were "for the Union." Further,
Q. And you knew they wanted you to help them?
A. Yes, sir, as far as having a vote.
Q. And you knew that what they wanted was not just to have a vote but
to represent the people?
A. No, sir.
Q. You don't know they wanted to represent the people?
A. They only wanted to get a vote, to have enough cards signed to have an
election.
Q. All they wanted was a vote?
A. That is the way I understood it.
Q. They didn't want to win an election?
A. I guess they did but they didn't tell me that.
Q. You know Talmadge, they wanted to win?
A. They told me just that I was signing for a vote.
Q. You knew they wanted to win.
A. Yes sir, I knew they wanted to win.
* * * * * *
Q. You knew if they won they would represent the people. You knew that,
didn't you?
A. Yes.
Q. You knew in signing the card you were helping them.
A. Helping them to get a vote to see whether we wanted a union or didn't
want a union, I mean.
The witness then admitted under questioning that he knew he was helping the Union
to accomplish what it wanted, namely, to become the bargaining agent.27
The issue is not, I believe, whether McElveen knew that the Union wanted to
win an election and to thereby become the employees' bargaining representative.
I am satisfied that he knew this. Nor is the issue whether by signing a card he was
rendering help to the Union, more help than would be the case if he had not signed.
What concerns us is, did McElveen, when he signed the card, select the Union as
his bargaining agent to secure recognition and to bargain with the Employer on his
behalf. There is substantial doubt that he did. He had refused to sign a card
when visited by the union people on two occasions. What apparently tipped the
2e If there had been a change or a revocation the question of the cause thereof would be
pertinent.
27 Davenport, in rebuttal, was asked whether in talking "to various employees of
Peterson and Diversified concerning the signing of union authorization cards" he ever
told them during the discussion that "the only purpose of signing [the] card was to
hold an election9-A No, I did not" This brief response to a rather general question
may well be true with respect to the question in haec verba but it is not very helpful
with respect to specific testimony of McElveen who impressed me as, on the whole, a
credible witness.
PETERSON BROTHERS, INC. 693
scales on the third visit was the assurance that signing a card was not to be con-
strued as a manifestation of McElveen's basic views or sentiments toward the Union
and that he was not, by signing a card, declaring himself for the Union. The fact
that McElveen thought that the union retirement program was a good idea had
apparently not been enough to make him sign on prior visits and but for the afore-
mentioned representation, on the third visit, diluting the effect of signing a card,
he apparently would not have signed. This is true apart from testimony as to his
being opposed to the Union at the time of signing and other circumstances described.
The latter types of testimony, although not pertinent when the designation is other-
wise clear, may have some confirmatory relevancy when the Union has made
certain representations to induce signing and has thereby given rise to ambiguity as
to the meaning and the signing of the type of card involved. On the whole, I
conclude that the General Counsel has not sustained the burden of proof with respect
to McElveen.
Hoyt Matthews, Jr.: The witness testified that two union men, whom he could
not name, brought a card to his home. The two men talked to Matthews but he
could not recall the conversation "but I understood that signing this card didn't
mean that the Union was coming in, that it only meant that if they got the majority
of the Company votes that they would meet with management and let them know
that the majority was in favor of the Union and then they would get together...."
Q. They would get together and set a date for secret ballot date?
A. That is the way I understood it.
Matthews signed a card on the above occasion.
On cross-examination Matthews stated that he had not read the card before he
signed and said, "I wasn't in favor of the Union to start with and after I found
out that signing that card didn't mean that the Union was coming in, so I went
and signed it so they would go home." Matthews admitted knowing that no
union represented the Peterson employees and that he knew that the union repre-
sentatives at his home were trying to get the Union in the plant as the representative.
He also testified that he knew that the Union was trying to get him to help it
become the representative and that by signing he was helping the Union "to repre-
sent" him, "I knew that was the first step [but] I had another step." Sometime
after Matthews had signed, he asked President Peterson, at a meeting Peterson was
conducting for the employees on the subject of the Union, "what would happen if
a man signed a card and later changed his mind about it ... did it mean that the
Union was coming in [would come in]."
Matthews' testimony recites no representation made to him by the union or-
ganizers. The most that appears is that Matthews "understood" certain things
in connection with his conversation with the union men. If this understanding is
construed as in effect a paraphrase of what was told to Matthews, the latter does
not appear to have been the victim of a misleading representation. Reasonably
construed, Matthews was told, or understood, that the Union was attempting to
come in the plant as the employees' bargaining representative; that the signing of the
card meant that with sufficient cards the Union and the Company would arrange a
consent election; that if the Union received a majority of the votes in an election
the Union and the Company would arrange to meet 28 In the foregoing context
the signing of a card is not the ultimate determinant. By the same token, however,
the signing of a card is a normal and essential step in a union's efforts to obtain
the status of bargaining representative. I am unable to discern that Matthews
was induced to sign a card by being told that the Union was only interested in an
election or by some similar assertion calculated to dilute the significance of signing.
Matthews' testimony regarding his subjective motivation or his thoughts regarding
the significance or lack of significance of signing a card cannot negate the overt'
act of signing a card designating the Union as bargaining agent.29
"Matthews' testimony reveals a distinction between "cards" and "votes" and I have
construed his testimony with that factor in mind
2s The instant cards state that the signer is selecting the' Union as his collective-
bargaining agent. The statements on the card as to the uses to which the card may be
put do not in themselves affect the aforementioned selection of the Union except in those
instances, previously considered, where the union representatives made statements that
delineated and limited the selection of the Union by signing a card as simply a means of
securing an election. Absent such representations the card's meaning is not diluted and
it is a designation of the Union as collective-bargaining agent in the full meaning of
the term.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If Matthews did not read the card before he signed, this omission was his own
choice and was not attributable to the union representatives. Whether he read the
card or not, an appraisal of the witness and his testimony leads me to the conclusion
that Matthews knew that by signing the card he had aligned himself with the Union
in its efforts to become his collective-bargaining agent. I find confirmation of this
fact in the witness' testimony that he subsequently inquired of the president of the
Company, "What would happen if a man signed a card and later changed his mind
about it," would the Union come in as bargaining agent? There would be no reason
for such an inquiry unless Matthews had signed the card as a significant act of
designation of the Union as bargaining agent. The inquiry is not consistent with
Matthews' testimony indicating that he regarded the signing of the card as incon-
sequential and of a preliminary and inconclusive nature. He had quite evidently
signed the card at the time as a designation of the Union as his bargaining agent 30
I so find and count Matthews' card as a valid designation.31
Henry Simpson: This employee of Respondent testified that the union card 32
dated March 25, 1962, and bearing the signature "Henry Simpson," was filled in
by his wife. He identified the "Henry Simpson" signature as his wife's handwriting
and stated, "That is the way she writes my name." The card had been sent by
mail, with a letter, to Simpson at his home. It arrived when Simpson was at
work. His wife filled out the card, and mailed it back to the Union; when her
husband came home that evening she told him what she had done and read to
him the letter of explanation that had come with the card. Simpson testified that
he was annoyed because at the time he was neither for or against the Union and
in any event he thought his wife should have read the card to him beforehand. He
stated that, at the time, he told his wife she should not have done what she did.
He also stated that he made no effort to get back the card or to communicate with the
Union.
Simpson testified that he cannot read and quite evidently he relied upon his wife
to perform this task for him. He also testified that he could only write his name
and that it was not uncommon for his wife to sign his name because he does not
write very well. The witness stated that in the period prior to the time his name
was signed to the card he had on several occasions mentioned to his wife that there
was union discussion among the plant employees; he had heard the talk in the plant
among the men about the Union, pro and con; he had discussed the subject of unions
generally with his wife; and he and his wife had discussed some of the possible
benefits if a union came into the plant.
However puissant is the hand that rocks the cradle, it cannot be said, under the
circumstances , that when Simpson's wife signed his name it was the equivalent of
his own act. The cynical benedict may regard this conclusion as a flight from reality
and may assert that when Simpson's wife signed his name to the card the matter
was closed insofar as the Simpson menage was concerned. Nor can the manufacturer,
the merchant, the homebuilder, the car dealer, the advertiser, hidden persuader or
otherwise, alter his conclusion by advancing the tenet that it is the American wife
who is the fount of decision beneath the facade of the male.
The evidence that Simpson thereafter made no effort to revoke his card or to
advise the Union of the situation, merits attention. Simpson explains this inaction
on the ground that Peterson had stated to the employees that the cards they had signed
were insignificant because there would be an election in which they could vote as
they chose.
But another aspect is that Cross, the son-in-law of Simpson who was also an em-
ployee of the plant, had talked to Simpson about the benefits of the Union, prior
to the time Simpson's card was signed . Cross, at the time , had not been successful
in his evident attempt to secure Simpson's adherences to the Union. Simpson, how-
10 Matthews' card was signed February 27. The Union demand on Respondent was
dated April 5. The consent-election agreement was dated April 30 and the election
scheduled for May 18. Even if Matthews had changed his mind at some date after sign-
ing a card I do not assume that it was before April 5, In the absence of specific evidence.
Moreover, there is no evidence that Matthews ever went to the Union or advised it of
any change or revocation. It is likely that any discussion regarding the election and
whether persons who had signed cards were committed to voting for the Union occurred
in the period after April 5.
3111. . . an employee's thoughts (or afterthoughts) as to why he signed a union card,
and what he thought that card meant, cannot negative the overt act of having signed a
card designating a union as bargaining agent." Joy Silk Mills, Inc. v. N.L R.B., supra,
at 743.
ra General Counsel's Exhibit No. 19.
PETERSON BROTHERS, INC. 695
ever, after his wife had signed and sent in his card , told Cross that he, Simpson,
had sent in his card to the Union . By saying nothing to Cross, Simpson obviously
would have been in the same position as he had been before, vis-a-vis Cross and the
Union, namely, a nonsigner and a nonadherent. He also would have preserved his
personal nonunion and nonsigning status by mentioning that the card sent to the
Union bearing his name was not his act but the unauthorized act of his wife. But
quite evidently Simpson sought to and did change his position regarding the Union by
adopting and ratifying the act of his wife as his own act. He told Cross that he
had sent in the card to the Union. This statement to Cross was an effort on
Simpson's part to set the record straight insofar as where he stood with respect
to the Union. He held himself out as one who had signed a card and who had sent
it to the Union 33 He stood forth as a union adherent . This manifest concern to
correct the record with respect to the card belies Simpson's testimonial effort to
deprecate the importance he attached to the fact that the Union had a signed card
bearing his name.34 Consequently, Simpson's lack of effort, when he learned of
his wife's action, to either revoke the card or to advise the Union of the facts of the
situation, was in itself a form of ratification. Any doubt on this score is removed„
and additional approval and ratification is shown, by the statement to Cross by
Simpson that he had sent to the Union the card bearing his signature.
Although Simpson had not read the card bearing his name, I am satisfied that
the manifest significance and importance that he attached to the signing was attrib-
utable to the fact that he regarded it as an act of designation of the Union as his
collective-bargaining agent and, in effect, an expression of support for the Union.
Such is the connotation to the average employee of signing a union card during an
organizational campaign . 35 This belief or understanding among employees as to
the significance of signing a union card unless it is expressly diluted or diverted to
a limited objective by the Union (e.g., signing only to obtain an election) exists
quite apart from whether the employees know the exact contents of the card. With
the single qualification set forth in the preceding sentence , when an employee states
that he has signed a union card he means that he is for the Union. Employees in
1962, nearly 30 years after the passage of the National Labor Relations Act, with
almost daily reference to union affairs in the press, radio, and television, know that
unions seek to represent and bargain for employees with their employer. It is
therefore clear that when Simpson ratified and adopted the signing of his name to
the card he was affirming that he had designated the Union to act as his bargaining
agent. How he voted or would have voted in any subsequent election does not alter
the effect of signing the card. The election and how an individual intended to vote
is a prospective and subjective matter quite apart from the act of signing a card
free from misleading representations by the Union as to the purpose of the signing.36
Further. Simpson's affirmance of the signing by his wife of his name on the card
indicates that, after some initial annoyance, he had decided to affirm what she had
done, even assuming, arguendo, that he did not know the precise contents of the
card 37
Upon all the evidence and for the reasons stated, I find that Simpson had desig-
nated the Union as his collective -bargaining agent and his card should be counted in
33 Clearly, Simpson was not telling Cross that he had mailed a blank card to the Union.
34 Peterson had expressed his views, previously referred to above, about the import of
signing a union card, prior to the time when Simpson's wife had signed the card Simpson's
initial reaction to his wife's action was one of anger which is not wholly consistent with
his effort to downgrade the significance that he attached to the signed card.
35 The prevalence of the idea among the employees that signing a union card is sig-
nificant is confirmed by the express efforts that Peterson made to counteract this
impression.
31 There was no misleading representation to Simpson by the Union Nor can it be said
that after an employee has signed or affirmed the signing of his card that the employer's
statements, before or after the signing , can eliminate the significance of the signing or
affirmation
37 "If the purported principal is shown to have knowledge of facts which would lead a
person of ordinary prudence to investigate further, and lie fails to make such investiga-
tion, his affirmance without qualifications is evidence that he is willing to ratify upon
the knowledge that he has Likewise, if, learning that one who had no authority acted
for him, he affirms without qualification and without investigation, when he has reason
to believe that he does not know all the facts, it may be inferred that he is willing to
assume the risk of facts of which he has no knowledge." Restatement of the Law, Second,
Agency 2d, vol. 1, ch. 4, § 91, p. 235, American Law Institute
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support of the Union 's continuing claim upon Respondent that it represented a
majority of the employees in an appropriate unit.33
Robert Jones: Jones, at the time of the hearing, had been in Respondent's employ
about 7 years. He testified that he had not signed General Counsel's Exhibit No. 11,
a card with the signature, Robert Jones, nor had he authorized anyone to sign it for
him. The witness admitted that he had been aware that the Union had a card with
his name but he had not advised the Union that he had neither signed the card nor
had he authorized anyone to sign for him. At the hearing the General Counsel had
introduced the signed cards, including General Counsel's Exhibit No. 11 and Re-
spondent thus became aware of the Jones card. President Peterson thereafter went
to Jones and told him there was a card with his name. Subsequently, Respondent
called Jones as his witness and it is his testimony that we are considering.39
In the course of his testimony Jones admitted that he had attended two or three
union meetings and that he had been shown a union authorization card both in his
home and at the place where the Union held meetings.40 On one occasion in his
home the union people had asked Jones to sign a card but he told them he did not
have his glasses and could not write or sign without the glasses. The witness stated
that he believed cards were signed at a union meeting at the Savoy one afternoon
when he was present but he does not testify whether or not he was asked to sign
on that occasion.
Jones was a friend or acquaintance of several of his coworkers with whom he
rode in a car to and from work and to union meetings. Jones and his associates
also had in common the same racial origin.
One of the aforedescribed friends of Jones, Grant, testified that Jones had ridden
to the Savoy with him to attend a meeting on a Saturday afternoon after their
half-day's work. About a dozen employees were present, all Negroes, and Daven-
port and another union representative, who were white. During the course of the
meeting it appeared that all present had signed cards except Jones. The union
representatives passed a card down through the group to where Jones was seated.
According to Grant, Jones said to him that he did not have his glasses and would
Grant fill out the card for him; Grant said, "You sign your name to it," and Jones
replied, "No, you sign it. I don't have my glasses." The information placed on
the card, such as address and telephone number, was obtained by Grant from Jones 41
Grant filled out the card, signed Jones' name, and handed it to Jones. Thereafter
Jones turned the card in to the union representatives at the meeting.42
381 do not agree with the assertion in Respondent's brief that General Counsel's Ex-
hibit No 19, the Simpson card, is not in evidence On the first day of the hearing the
General Counsel showed to witness Davenport General Counsel's Exhibits Nos 2 through
33 for identification. The witness identified certain cards that had been signed in his
presence and others that, although not signed in his presence, had been turned over to
him by other union representatives. The General Counsel offered all the cards into evi-
dence and Respondent objected to all the cards on the ground of authenticity. The Trial
Examiner received these cards signed in Davenport's presence. As to the other cards, in-
cluding General Counsel's Exhibit No. 19, the Trial Examiner stated that they had been
identified to the extent that the witness testified that they had been turned over to him
by other representatives but "as to whether they were signed by the persons whose names
they bear and so forth, I can't make the conclusion from the testimony of this wit-
ness . . I will receive them only to the extent . . identified . . . as cards that the
witness states were turned over to him . . I have received the cards under the condi-
tions I have stated." The transcript then shows that the reporter, sua sponte, has
marked General Counsel's Exhibits Nos 2, 7, 8, 13, 18, 19, 22, and 24 for identification.
Later, in the hearing Simpson testified and authenticated General Counsel's Exhibit
No. 19, as previously described in this report. The matter of Simpson and General
Counsel's Exhibit No. 19 was fully litigated by both parties, and, in its brief, in addition
to the procedural agreement, Respondent addressed itself to the merits of the Simpson
card, pointing out that Simpson had testified that he had not signed the card. It was
Respondent who called Simpson as a witness as a part of its case in an effort to invalidate
General Counsel's Exhibit No. 19 which Respondent evidently considered to be evidence
in the record that the General Counsel had previously adduced.
85 The transcript of testimony erroneously refers to the witness as Robert Young.
An establishment or club called the Savoy.
ai Jones admitted that this data on the card was correct.
43 In examining Grant, Respondent 's counsel asked him to spell Jones . The witness re-
plied, "J-o-h-n-s." He was asked to write the name used on the card and he wrote,
"Robert L. Johns," Respondent's Exhibit No 4. Further examination of Grant established
that he could read without difficulty and a comparison of the writing on Jones' card,
PETERSON BROTHERS, INC. 697
Another employee who was present on the above occasion, Canady, substantially
corroborates Grant's testimony. He states that Jones started to write when he
received the card but then passed it to Grant and asked the latter to fill it out for
him and Grant did so.
After careful consideration of the witnesses, their testimony and the evidence, as
well as Respondent's position regarding the interpretation to be placed on the Jones
card, I find the testimony of Grant and Canady to be substantially and materially
credible. I conclude that Jones, like other employees, understood the import of
signing a union card as being a definitive designation of or an alignment with the
Union, of whose purposes and objectives regarding the plant and its employees he
was generally aware. The evidence satisfies me that Jones authorized Grant to fill
out and to sign Jones' name to General Counsel's Exhibit No. 11, with knowledge of
the significance of the card, as aforedescribed. Additionally, Jones assumed the re-
sponsibility attached to the act of his agent, Grant, in signing the card 43 I conclude
that General Counsel's Exhibit No. 11 should be counted as Jones' card in support
of the Union's claim that it represented a majority.
Conclusion Regarding the Majority Issue
Of the authenticated union authorization cards, I count 26 as valid designations of
the Union in the appropriate unit of 51 employees.44 The Union therefore had a
majority as of April 5, 1962, and thereafter 45
4. Respondent's conduct during the February to May 1962 period
As we have seen, the Union commenced its organizational effort at Respondent's
Peterson plant about the first part of February 1962. Beginning a day or two after
the union representatives appeared outside the plant distributing literature, Respond-
ent for a week or more conducted daily or almost daily meetings of the employees
in the plant. Some days more than one meeting was held. President Peterson con-
ducted these meetings, with the exception of some presided over by Plant Manager
Read. Peterson's basic theme at the meetings was that the employees did not need
the Union because there were many benefits in working for the Company. Begin-
ning with the first meeting Peterson read from the company policy manual and
explained the various policies and benefits. He stated that the employees did not
need a union since they could elect their own committee to handle grievances. At
one of the meetings Peterson did mention by name three employees whose maturity
and length of service with the Company, he said, was such as to indicate to him
that they would be good committeemen. Respondent on one occasion during this
period distributed blank sheets of paper to the employees and they wrote in the
names of their choices for committeemen. The majority choices were thus elected.
General Counsel's Exhibit No. 11, with that on Grant's own card, General Counsel's Ex-
hibit No. 9, and Respondent's Exhibit No. 4, convinces me that the handwriting is the
same Also, the signature on the Jones card spells the name properly although the
printed name, which is partially overwritten, may spell the name "Johns " In any event,
I find that Grant did sign the name, "Robert Jones," to General Counsel's Exhibit No. 11,
as aforedescribed.
4a It is no doubt true that Jones was exposed to some social and psychological pres-
sure in the circumstances described. But this is true of most human activity. People
vote, buy things, do things, under circumstances where the actions or views of those in
the same social strata, or those of the same race or religion, or in the same neighborhood
or family or place of work, affect their decisions There are all types of motivations,
conformity being among them. One of the citadels of our system of government and
society, the jury system, operates under similar circumstances. If 11 jurors are for
acquittal and 1 Is for conviction, the single individual is exposed to all sorts of subtle
pressures from his fellow jurors He either goes along with the majority or he does not.
Perhaps if he remained in his own home, unexposed to all the circumstances of the jury
room, he never would have voted as he finally did, but his definitive action in the jury
room binds him and is counted.
44 The cards counted: Bennett, Bullington, Canady, Grant, Green, Moore, Pafford,
Pharr, Rollins, Spires, Washington, Christie, Senior, Clark, Martin, Simpson, Young,
Cross, Matthews, Jones, Britt, Conklin, Johnson, Mobley, Ogden, Parker, and Russell.
Rejected cards are: Brown, Bryan, Isaacs, Rhodes, Wright, and McElveen.
4i As appears, the resolution of the disputed cards was made on an individual card
basis, apart from and prior to the final tabulation. Perhaps more numerical weight one
way or the other In the final result would have been more satisfying but the result is
as stated.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Most of the items in the policy manual , such as holidays , vacations , and so forth
had been in existence for some time . The grievance committee , however , had never
existed prior to the advent of the Union . Peterson testified that he had the idea
for such a procedure about 3 years ago . He mentioned the possibility of having
such a procedure to some of the employees about a year ago but the program was
neither completed nor placed into effect before the period in February 1962, afore-
mentioned . The finalization and effectuation of the policy, pointed to as an ostensible
benefit of working at Respondents ' plant without a union , was patently a move to
defeat the union movement at the plant 46
At other plant meetings during this period Peterson compared provisions of a
contract in a plant organized by the instant union with conditions in Respondent's
plant and he also made a comparison with conditions in Respondent 's Fort Wayne
plant which was represented by another union . A recurring theme in the foregoing
was that there were more layoffs in the unionized plants. This was attributed to
Respondent 's policy of shifting employees to other jobs, even make-work types of
activity , such as painting or cleaning up , when work was slow in their regular jobs.
Union policy on classification seniority was said to prevent this shifting of personnel
and to result in more layoffs as a consequence.
The record does not show the exact dates of all these meetings but they com-
menced early in February and apparently continued throughout that month and into
March . 47 The meetings in February , as we have seen , were the more frequent. In
the latter part of February, also, Respondent held two parties, one for its white
employees and one for its Negro employees . The parties were held at restaurants
off company property with all expense borne by Respondent . The wives of em-
ployees also attended these parties. The custom of holding such parties was not an
innovation, having been followed in past years.
Peterson spoke to the assembled employees and their wives at both parties. The
speech at the white employees ' party was made early in the evening and was longer
and more detailed than that made at the other party. At least one reason for this
appears to have been the fact that Peterson arrived at the latter party, which was at
another location , later in the evening and after the proceedings were well under way.
Exactly what Peterson said at these parties is a matter of conflicting versions by
various witnesses. I find that at the first party Peterson described in detail the
various existing benefits that the employees enjoyed . He referred to the fact that a
union was attempting to organize but said that existing benefits at the Company
were not exceeded by union plants . He referred to a profit-sharing plan that the
Company had had and which had been discontinued a year or two before He ex-
pressed the hope of being able to again pass on to employees such share in the
profits of business improved and warranted it. I have sufficient substantial doubt as
to whether Peterson said on this occasion that existing benefits, or some of them,
would be discontinued if the Union came in , so that I do not credit the testimony
on this score and find that the General Counsel has not proven this fact by a pre-
ponderance of the evidence At the Negro employees ' party, Peterson's speech or
comments were admittedly short and he focused his remarks primarily to the wives
of the employees who were present . I find that he said, as be had at the other affair,
that under existing conditions an employee could take up matters with his employer
without having to go to an outside party like the Union and that Peterson was con-
fident that the wives (and husbands ) realized that in their marital relations they
could settle their problems much better between themselves without the necessity
of dealing through a third party. He also referred to the fact that the Union was
trying to get into the plant and if it did there would be no more parties, "Talk it
over with your husbands because we do not want any union in the plant."
In the latter part of March or early April , employee Washington, whose testimony
on this matter I credit, was approached in the plant by Foreman Anderson. Ander-
son asked him what he thought about the Union and Washington said he was against
unions. The foreman commended Washington for this view , remarking that unions
were no good . About 2 weeks later Anderson said to Washington that he had heard
that he had signed a union card . The employee admitted that he had. Foreman
Anderson then said, "You know we have been together a long time . . . think it
over. The Union tried to organize this plant once before and you don't see none of
4U The manual itself was distributed to the employees sometime in February after
Peterson had discussed it at several of the February meetings
47 Employee Spires, who was terminated April 27, states there were meetings up through
April while he was employed.
PETERSON BROTHERS, INC. 699
those guys here now." I also credit employee Clark that a few days before the
scheduled election Walter Peterson came into the receiving department of the plant 48
Clark knew who Walter Peterson was and evidently the latter knew Clark. He told
Clark that he had heard that Clark was spearheading "this union business." Peterson
said that if Clark turned the boys away from the Union he would see that he got
a raise. Clark expressed concern about his job. Peterson assured him that he
would talk to his brother, Frank, and also Read and would see to it that Clark kept
his job and received a raise. The closing comment to Clark was, "As you recall,
the Union tried to get in there once before and quite a few of the guys are not
present now."
Frank Peterson testified that his brother was no longer active in the Company.
He said that, although Walter was a member of the board of directors and attended
some board meetings, he was not paid for such function and that it was "largely"
an honorary position. As far as appears, Walter was present in the plant only occa-
sionally in 1962 and apparently was not a part of active day-to-day management.
However, it is evident that he had access to the plant, and some of the older em-
ployees, like Clark, knew him to be one of the Company's founders and the brother
of the president. It also appears that Walter was aware that the Union was attempt-
ing to organize the plant and apparently knew that a particular employee, Clark,
was a union advocate 49 Walter purported to be acting on behalf of Respondent
and purported to have and probably did have access to, and some influence with,
his brother and the plant manager on company matters. In view of Walter Peterson's
important relationship with the Respondent in the past; his close relationship with
the current owner and president; his current official capacity with Respondent,
whether honorary or not; his knowledge of and interest in current company matters,
at least in one of them, the union contest; and his free access to company premises
and personnel, it is my opinion that Respondent is responsible for Walter Peterson's
status as aforedescribed and is responsible for his remarks as an official closely iden-
tified with Respondent' s top management.
As noted heretofore, the union campaign started among the Peterson plant em-
ployees. When the campaign later shifted to include the Diversified plant person-
nel, the manager and the plant superintendent of Diversified visited the homes of
Diversified employees. They had the chart of layoffs at the Fort Wayne plant and
pointed out to employees that there would be more layoffs at Diversified if the
Union came in because union classifications would prevent the transfer and shifting
of employees during slack periods. The employees were told that if the Union came
in and work was slack the employees would be sent home.50 I credit employee
Topey in part, to wit, that when the manager and superintendent of Diversified
visited his home in May 1962 they described the benefits that Respondent main-
tained for its employees and mentioned the school training plan, profit-sharing,
turkeys, and loan provisions, "and stuff like that . . ." and that by keeping the Union
out the employees would lose none of these things but these benefits would be
forfeited if the Union came in . Topey was also told, on this occasion, We can't
tell you what to vote."
In addition to meetings in the plant and the parties for employees, aforementioned,
President Peterson and Plant Manager Read visited the home of practically every
Peterson employee and those whom they did not see at home they talked to in the
company office at the plant 51 The home visits and office talks appear to have
taken place in the period after the Union's Anril 5 demand for recognition and
after the filing of the petition for certification.52 The visits and talks were fairly
lengthy. The management spokesmen showed charts of layoffs at the unionized
Fort Wayne plant compared with the Peterson Jacksonville plant. It was explained
that the greater number of layoffs at the former plant was due to the union system
of job classifications and that layoffs would be greater at Jacksonville if the Union
came in since transfers to other jobs in the plant, when work was slack, would
not be allowed. Such layoffs, the employees were told, would result in the loss of
" Waiter Peterson who did not testify, is the brother of Frank Peterson and wa' one
of the founders of the Company. His connection with Respondent is discussed hereinafter.
49 Clark's union card is dated February 28.
"F, g, testimony of Britt.
i Plant Superintendent Seigle also participated to some extent
59 E g , Bennett was visited at his home about the first of May : Rollins was spoken to in
the office about a week before the election (May 18 was the scheduled date for the elec-
tion) ; and Washington was spoken to in the office in May.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their existing benefits 53 The details of the coming election were explained and
the employees were told that under the law both the Company and the Union had
certain rights. A recurring theme by management in these various talks was that
if the Union won the election the law required that the parties bargain about a
contract. But Peterson (and Read) informed the employees that the bargaining
would start with a blank piece of paper and everything would have to be bargained
for with the exception of the requirements of the law, such as a minimum of
$1.15 and time and one-half for hours over 40.54
At the hearing, President Peterson testified, "I have said many, many times, and
I think this is clear, that in many talks I said we would start with basic things that
are required by law . . . time-and-a-half; 40 hour week . . . [and] the minimum
wage . . . But I stated that the law did not require anything other than that"
and that the Union would have to get the Company's agreement to anything else
it wanted in the contract. The witness was then asked:
Q. You at no time advised the employees you would start bargaining from
existing conditions, did you?
A. I do not think I ever did, no, sir.
The words and the implication of what was said to the employees along the fore-
going lines had the effect of warning the employees that with the Union they would
be starting from scratch except for Federal minimum wage and time and one-half
for hours over 40. Starting from scratch or with a blank piece of paper means to
the average employee that he is starting without existing benefits. This situation,
however, could be averted by the employees' rejection of the Union.
During this period of meetings, speeches, and visits, and individual in Respondents
employ, Lester Walker, spent considerable time campaigning against the Union
on company time and property. About 3 days before the scheduled election
Walker told employee Pafford and other employees that if the Union came in they
would all be out of a job because Peterson said he was not going to bargain with
the Union and would close the plant. Pafford asked Walker where he got this
information and the latter said that it was straight from Petersons office. Pafford
testified that Walker is a welder and assistant to Anderson, foreman and supervisor
of the Respondent. Pafford's duties took him all over the plant. Walker's duties
normally confined him to his own department. About a week before the elec-
tion Pafford observed Walker campaigning against the Union during working time,
break time, and lunchtime, throughout the plant. Employee Bennett referred to
Walker as an assistant supervisor who took over when Anderson was absent.
Bennett testified to several conversations with Walker in which Walker said sub-
stantially the same thing as testified to by Pafford, above, and Walker gave Frank
Peterson as the source of his information. Bennett reported to Anderson that
Walker was going from department to department talking against the Union.
Anderson said he knew nothing about it. Martin, a welder, received the same
type of information from Walker as aforementioned. He understood that Walker
was assistant supervisor to Anderson in the department and testified that in Ander-
son's absence Walker assigned work to the men and kept time records on the work.
Employee Clark also states that Walker made statements as previously described.
Employee Moore referred to Walker as assistant supervisor and stated that Walker
had given him work orders. Moore said that on occasion he had asked Walker for
permission to get off from work and had received such permission from Walker.
There was testimony that Walker during this period had been in the front office
on one occasion for a considerable length of time. Peterson testified that the only
time he discussed the Union with Walker was "one of our educational informa-
tions-all meetings which Mr. Read and I had were with Mr. Walker ...."
Plant Manager Read testified that Walker was hourly paid, plus receiving a 10-
percent premium, and was a welder and leadman Read stated that Walker was
not a supervisor and could not hire or fire or effectively recommend the same.
He also stated that Walker was not authorized to grant time off nor was he authorized
5'When Read visited employee Bennett's home and spoke as described herein, Bennett's
wife, who was present with her husband, asked Read if her husband would lose his vaca-
tion if the Union came in. Read answered in the affirmative
There is also credible testimony that on one or more occasions Peterson told employees
that there would be no more profit sharing if the Union came into the plant While
profits had not been shared for about 2 years, there was such a program ; Peterson had
told the employees that because of poor business there had been no profit sharing recently
but he had publicly promised to resume passing on to employees a share in such benefits
when the Company's business improved.
54 Testimony of Pafford, Clark, Bennett, Rollins, and Washington.
PETERSON BROTHERS, INC. 701
to campaign against the Union in the plant. The witness tesified that Walker did
not "regularly" direct the work of other employees but, in Anderson 's absence,
Walker did issue work orders and recorded production data. Although I am
satisfied that on occasion Walker did discharge some supervisory functions, I find
that he was not a supervisor . However, the extensive nature of Walker's cam-
paign activities in this relatively small plant are such that I believe that Respondent
was aware of such activities and condoned them either specifically or by assuming
the risk of the nature of such activities and by failing to take any action regarding
the ambulatory antiunion campaign although the head of the department , Anderson,
had been advised by an employee of the nature of Walker's activity. By way of
contrast , a prounion employee, Clark , who was one of those to whom Walker had
expressed his antiunion views, and whose uncontroverted testimony is that he , Clark,
had done no more than talk about the Union, received a written warning from
his supervisor. The reprimand stated that Clark's "solicitation on the job" had
been brought to the attention of supervisors ; Clarks' action , it was said , violated two
company policies , the prohibition against solicitation during working hours and
leaving the job to participate in activities other than regular duties . A further
basis may exist on which the Respondent 's responsibility for Walker 's activities may
rest-that although Walker was not a supervisor in the full sense of the term his
job and his duties identified him with management in the eyes of the employees and
he pointed to management as the source of the ideas that he was expressing. His
uninterrupted campaigning lent confirmation to his closeness to management, cer-
tainly in the eyes of employees.
Conclusions Regarding Respondent 's Conduct With Respect To Section 8(a)(1)
of the Act
It is found that the finalization and the putting into effect of the grievance com-
mittee procedure in February 1962 constituted the granting of an ostensible benefit
to the employees in an attempt to divert the employees from an exercise of the rights
granted under Section 7 of the Act . The evidence persuades me that, but for the
Union's appearance on the scene , the grievance procedure would not have been
placed in effect by Respondent at that particular time although Respondent had
thought about the idea as much as 3 years before. Nor is there any convincing
reason to believe that the Respondent's action in setting up and conducting a grievance
committee election for the first time in February was anything but a countermove
to the union activity . The foregoing conduct constitutes interference with the
exercise of the employees ' right guaranteed by Section 7 of the Act and is found
to be violative of Section 8 (a) (1) of the Act.
Foreman Anderson 's interrogation of employee Washington and his statement,
when the employee admitted that he had signed a union card , "you know we have
been together a long time . . . think it over. The Union tried to organize this plant
once before and you don 't see none of those guys here now" constituted interference,
restraint , and coercion in violation of Section 8 (a) (1) of the Act. The same con-
clusion and finding is made with respect to the statements made to employee Clark
in May 1962 by Walter Peterson , a cofounder and director of the Company and the
brother of the president.
The statements made to employee Topey in May 1962 by the plant manager and
superintendent of Diversified that if the Union got into the plant various employee
benefits would be lost are found to be violations of Section 8(a) (1) of the Act. It
is also found that the plant manager 's statement to the wife of employee Bennett,
that her husband's vacation rights would be lost if the Union came in , was violative of
Section 8 (a) (1) of the Act . The same conclusion and finding is made with regard
to statements by Respondent 's president that there would be no more profit sharing if
the Union came in . Statements made by the president of Respondent that if the
Union secured bargaining rights he would start bargaining from scratch and with a
blank piece of paper, except for the Federal minimum wage and overtime require-
ments, were, in words and by clear implication , threats that existing wages and con-
ditions would be lost or jeopardized by the advent of the Union. Such statements
were violative of Section 8(a)(I) of the Act. The same finding and conclusion of
a violation of Section 8(a)( I) of the Act is made concerning statements made by
Walker to employees in May 1962.
5. The terminations of Spires , Bullington , and Jayne
William Spires: This employee had worked for Respondent in 1960 and he had
also worked under Foreman Holden in shipping until June 1961, at which time he
left because of what he considered to be an inadequate wage. Thereafter Foreman
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baugh of the receiving department contacted Spires through one of the other
employees. Baugh asked Spires about coming back to work for Respondent. Spires
said he would not come back at his former wage rate. He was thereupon given 15
cents more per hour than his former rate. The employee worked in the receiving
department from October 1961 until April 27, 1962, when he was terminated.55 Two
or three weeks before his termination Spires had received a 10-cent per hour raise.
The evidence is clear that Spires was a good employee and Respondent does not
contend otherwise.
About February 1, 1962, in the morning, Spires was talking to Foreman Holden.
In the course of the conversation Spires said that he wondered why they did not have
a union here although there was a union at the Peterson Fort Wayne plant. Holden
said they were doing as good or better than Fort Wayne. Later that day the union
representative appeared for the first time outside the plant distributing literature.
Spires testified that his earlier remarks on February 1 and the Union's appearance
were pure coincidence. This appears to be true since there is no evidence of any
particular contact or liaison between Spires and the Union either before or after
February 1. Like others, Spires thereafter met and talked with the union repre-
sentatives and signed a card.56 In the following days Spires heard Peterson's
speeches, previously described, including statements that employment was more
stable at Jacksonville than at the Fort Wayne union plant. On his own initiative,
Spires asked a truckdriver at the Diversified plant to pick up a copy of the Fort
Wayne contract the next time the driver was in Fort Wayne. The driver did so
and gave the contract to Spires.
After receiving the contract Spires spent considerable time showing it to other
employees in the plant. Bullington, another employee who was discharged April 27,
also showed the contract around the plant. The principal item of interest that was
pointed out was the Fort Wayne wage rate. Evidence that I credit satisfies me that
several supervisors of Respondent became aware of what the document was that
was being shown by Spires and Bullington and that they knew what Spires and
Bullington were doing. Peterson, in his speeches, either expressly or impliedly con-
ceded the existence of higher rates at Fort Wayne but his argument was that the
overall income of employees in the Jacksonville plant was higher because of the
greater frequency in layoffs at Fort Wayne. In any event, the existence of a union
contract at Fort Wayne was generally known among the Jacksonville employees,
although they probably did not know the precise wage rates until Spires secured a
copy of the contract.
On Wednesday, April 25, Foreman Baugh gave Spires a letter stating that he
would be laid off on Friday, April 27, because of the reduction in the sales forecast
for trailers for the balance of the year. The letter advised Spires to seek other em-
ployment since it was not anticipated that he would be recalled within the year. This
was the first word Spires had received about a layoff. His last day of work was
April 27.
The General Counsel adduced credible testimony that McCauslin, production con-
troller at Diversified and a supervisor, had asked employee Rhodes how the Peterson
employees has secured a copy of the Fort Wayne contract. Rhodes said he did not
know and McCauslin stated that he was certain that Frank Peterson would fire the
man if he knew who it was. Several weeks after the union activity had commenced
at the Peterson plant Foreman Anderson was talking to employee Rollins. At one
point they were faced toward the front of the building where Spires and another
unidentified employee were speaking out of earshot of Rhodes and Anderson. Ander-
son said to Rhodes, "when layoff time comes again I am going to remember this
union's - [stuff]." Anderson was not Spires' foreman.
Frank Peterson testified that his pleasure boat business had been growing from 1950
to 1959. The boat trailer business of Respondent is directly related to the boat
business. Business, contrary to expectations, slipped in 1960. Respondent elimi-
nated some staff jobs in 1960. Through experience, Respondent has usually been
able to determine sales for the balance of the year by about March.57 In March 1961
Respondent eliminated various clerical, management, maintenance, and plant jobs.
Five automobiles were eliminated; 400,000 worth of company insurance on Piesident
Peterson was canceled; the job of director of research was eliminated; vendors or
suppliers were changed in the interest of economy. Additional products were sought.
A motor scooter was developed in 1961 as well as fallout shelter blowers. Respondent
estimated it would be able to increase gross sales in 1962 by 7 percent. However,
ss Spires' past and current employment was at the Peterson plant.
11 The card is dated February 13.
57 The fiscal year ended September 30.
PETERSON BROTHERS, INC. 703
the fallout shelter business collapsed by December 1961 and the Company had unsold
inventory on hand. Dealer orders for scooters were fair in January 1962. The
March 3, 1962, projection showed a further decrease instead of a 7-percent increase
in sales. Beginning in March and through June 1962 the purchasing agent and cleri-
cal help were eliminated; a salaried supervisor was reduced to being an hourly paid
employee; salaries of various employees and some supervisors were reduced; the
jobs of director of material control and director of advertising were eliminated. Ex-
penses were reduced about $60,000 to $70,000. On April 10, 1962, the sales depart-
ment made another downward revision. The decrease was about 980 trailers, equiva-
lent to about $150,000 in income. The Company held two top level meetings about
April 10 and 12. It was decided that the business was below the break-even point.
It was decided to eliminate any nonessential labor. As a result employees Spires,
Bullington, and Wilmer Clark were terminated April 27.58
Rohan, secretary-treasurer and a director of Respondent, testified that on March
31, 1962, the Company was 23 to 27 percent below sales of prior years. He stated
that he and Peterson were gravely concerned and described consolidation of account-
ing and other functions that were made between the Jacksonville and Fort Wayne
plants. In spite of these measures a loss was predicted for the year ending Septem-
ber 30. By March 31 Respondent had 65 percent of necessary inventory purchases
and by April 30 about 75 percent of materials and parts had been received and
recorded. These were materials and parts that would be used through September
1962.
There had been two men in the receiving department, Spires and Johnson. The
latter had substantially more seniority than Spires and was retained. Spires' work
had consisted of receiving parts and materials and distributing to the various depart-
ments, either to storage bins or to individual production workers. After Spires left,
the latter secured their own materials. Some of them stated that they spent consider-
able time in this type of indirect labor or material handling activity. However, Re-
spondent introduced a compilation of time charged to material handling of the various
employees for the period April 27, 1962, to June 27, 1962, and it shows less hours
than could reasonably occupy one individual, there being only a total of about 44
such hours for the entire 2-month period. Rohan identified the document afore-
mentioned and explained the sources, i.e., time and usage reports and timecards.
These original sources were present in the hearing room. The General Counsel did
not undertake to invalidate any of the foregoing documents or the compilation that
was received in evidence.
The General Counsel introduced testimony of employees regarding overtime
worked during and after the date of Spires' discharge as well as testimony that April-
June was the busy season for the trailer business. These factors are explained, how-
ever, by the fact that the production workers who were working considerable over-
time did not have work on hand. Materials on which they worked had previously
passed through the receiving department in which Spires worked. Completed produc-
tion work would thereafter not flow through Spires' department. Enough materials
and parts, work of the receiving department, were on hand by the end of April to
carry through for the balance of the fiscal year ending in September and Spires had
not been working overtime in the period prior to his termination. If it be the fact
that certain employees, after Spires' termination, did, from time to time, do material
handling in the receiving department, it does not establish that under all the circum-
stances any one individual or a combination of individuals were spending full time or
nearly full time in such activity 59 Further, the record of material handling work
by various employees, previously discussed, shows a minimum amount of time so
spent in the period after April 27.
Various aspects of Spires' discharge give rise to suspicion. Probably many em-
ployees believed that he was terminated because of his union activity and were
affected thereby in their adherence to the Union. But the evidence does not persuade
me that the General Counsel has sustained the burden of proof. Dismissal of the
allegation is recommended.
French Bullington: Bullington had worked for Respondent wrapping trailer frames
in waterproof paper from about March to August 1960 when he left to teach school.
w Clark was a box packer for trailers, who Respondent states was laid off according to
seniority. He is not alleged in the complaint to be a discrlminatee
69 Bennett testified that Valentine, a press operator, worked in receiving the day after
Spires' discharge. Pafford testified that Moore, Canady, and Valentine worked in receiv-
ing at various times after Spires' termination. Moore and Canady were General Counsel's
witnesses but they gave no testimony about working in the receiving department or the
amount thereof . Valentine was not called as a witness.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Around October 1961 he was working for a fence company when Frank Peterson
spoke to him. Peterson said that if Bulhngton was at anytime interested he should
drop around to Respondent's plaint and see if there was any job available. A few
weeks later Bulhngton came to the plant and asked Holden, his former foreman
in the shipping department, for a job. They then spoke to Plant Manager Read. It
was mentioned that the Company was developing a motor scooter which was a new
product for Respondent. Read opined that Bullington would fit into the scooter
operation and that, as the section developed, Bulhngton would have increasing re-
sponsibility in the section.
There is no evidence that Bullington was not a good employee. His work in the
scooter operation consisted of taking the scooter frames that had been welded and
painted in other sections of the plant and assembling and mounting thereon the
motor, pedals, seat, and other parts. He also worked an average of about 1 day
a week helping in the shipping department; on occasion, less than the time spent
in shipping, Bullington made some small parts for the shipping department. At
the hearing, Bulhngton testified that there had been a decline in his scooter work
for several weeks prior to his termination. He had been working a 5-day week;
at the time shortly after he had been hired he had been working 51/z days. During
Bullington's employment other employees had worked with him in the scooter
work. These employees were three or four in number and the amount of time
as well as the number of employees engaged in the scooter operation fluctuated
during the period of Bullington's employment 60
Bulhngton, like Spires and others, signed a union card. When Spires obtained
the Fort Wayne contract Bullington read it and also showed and read it to other
employees. On one occasion, during a break, Bullington was reading the wage scale
of the contract to several employees. When Foreman Holden came by at this time,
Bullington showed him the contract.
On Wednesday, April 25, Holden gave Bullington a letter advising him of his
termination as of April 27. The letter is identical with the letter given to Spires
except that Bullington's letter was signed by his foreman, Holden, while Spires
was signed by his foreman, Baugh. Both letters gave the reason for layoff as the
forecasted reduction in sales of trailers for the balance of the year. The three
paragraphs of the letters and their identity indicate a form-type letter.
As we have seen, Peterson testified regarding Respondent's business conditions
and stated that the termination of Spires, Bullington, and Clark was in the interest
of cutting down on costs by eliminating nonessential labor. Plant Manager Read
testified that Bullington was let go because the work for which he was hired, the
scooter assembly, petered out and he was surplus labor and was low in seniority 61
Wright, who had been hired a few days after Bullington, was not terminated but
Wright, although he did work on scooters from time to time, was also a press
operator, a job for which Bullington was not qualified.
Employee witnesses called by the General Counsel testified to hearing a supervi-
sor, Brown, state around the time of Bullington's termination that there was an
order for 600 scooters or 600 scooter motors.0 Production figures in the record,
which have not been invalidated, indicate that 600 scooters would be about 6
months' production. Read testified that there was a production schedule for 600
scooters but said that this was not a sales order. As far as he knew there had
never been a sales order for 600 scooters. Brown said that as supervisor of the
press department he had a work order for parts for 600 scooters and that was
all he knew about the matter. Read testified that 420 scooter engines had come
to the plant around April 63 He said that it was difficult to get such engines around
that time of year because the engines were also used for power lawnmowers. Read
said he had ordered the engines so he would have them on hand and not to fill
any specific sales orders. At the time of hearing he said there were still 370 of
these engines on hand and he had incurred some critical comment as a result.
Considering the foregoing testimony, I substantially credit Read and Brown. It
is also found that while Respondent continued to manufacture and assemble scooters
80 Bullington testified that working as hard as he could he could put together about
36 scooters a day Plant Manager Read testified that it took about 36 minutes to assemble
a scooter. Bullington stated that the assembly of 80 scooters a week was less than
average. This testimony appears to be inaccurate since average monthly production of
scooters from October 1961 through May 1962 was approximately 101.
61 Read also testified in some detail about the overall picture of the plant, including the
cutback in sales of trailers and why same departments worked overtime and so forth, as
well as the effort to reduce labor costs.
82 Bennett 's testimony is not clear whether it was motors or scooters.
61 Bullington said he had, in April, received and stored 600 engines.
PETERSON BROTHERS, INC. 705
after Bullington's discharge it did so with personnel who had previously done this
work with Bullington and/or who did and could perform this and other jobs. All
these persons except Wright had more seniority than Bullington and appear to have
had either more diversified abilities or possessed ability equal to Bullington's in
scooter assembly. Production figures on scooters show some decline but the
sales figures show a more pronounced downward figure. The record does not
show the wages of Spires, Bullington, and Clark, but assuming the weekly total for
the three was approximately $200, the saving by their elimination would be nearly
$10,000 in a year. In the light of Respondent's business picture,64 I cannot regard
this saving as being inconsistent with Respondent's efforts to meet the critical
posture of its business. There is no evidence that total payroll costs after the
discharges were not less than they were before and the presumption is that the
elimination of three men would reduce such costs 65
Bullington's discharge, like Spires', gives rise to question, particularly, in addi-
tion to other factors, because of Respondent's proclaimed policy against laying
people off and retaining them on other work. However, in view of the serious
economic problems of the Company, not previously encountered as in 1962, I am
not persuaded that on the evidence as a whole the General Counsel has sustained
his burden of proof. Dismissal of the Bullington allegation is recommended.
Harvey Jayne: Jayne was employed by Respondent at the Diversified plant on
April 10, 1962, as a machine operator. He was terminated on May 18, 1962, and
was offered reemployment about a week before the hearing. He declined the offer.66
The witness testified that he had not signed a union card. He stated that at lunch-
time and at break periods he had said to other employees that he was in favor of the
Union because it would result in better working conditions. Other than the fact that
this occurred during the period of his employment, it does not appear when these
conversations took place or whether they occurred under circumstances that would
be material to his case.
Jayne does not state what was told to him when be was terminated. He believed,
but was not sure, that Manager Spring advised him of his termination. Another ma-
chine operator at Diversified was terminated at the same time as Jayne. Jayne testi-
fied that work was heavy when he was laid off. Foreman Mills testified credibly
that he terminated Jayne and Moore at the same time owing to lack to work.
Brunetti, shop superintendent of Diversified, testified credibly that Jayne and Moore
were hired at the same time and laid off at the same time. Brunetti stated that a
particular contract had been obtained and had resulted in the hiring of the two men.
The contract was thereafter completed and they were laid off because there was no
additional work. Jayne was offered reemployment later when there was work on
hand that he was qualified to perform. Dismissal of the Jayne allegation is recom-
mended on the ground that the General Counsel had not sustained the burden
of proof.
6. The refusal to bargain
The record in this case is clear that the Respondent at all relevant times, both
before and after the Union's claim that it represented a majority of the employees in
an appropriate unit and Union's request that the Respondent recognize and bargain
with it, adopted the position that it, the Respondent, had a right to an election
and that it was only by an election that he Union could or would secure recognition
from Respondent. President Peterson testified, as did employees, that, both publicly
and privately, he had proclaimed Respondent's position to be, that signed card
designations of the Union as collective-bargaining agent were completely ineffectual
and had no significance or effect in establishing the Union's collective-bargaining
status, and that employee designations of the Union as their bargaining agent "merely
was for the purpose of the Board to call an election." Despite the letter written to the
Union stating that Respondent did not believe that the Union represented a majority
64 The testimony on this point has been referred to with respect to the time of the
April 1962 termination ; there is additional testimony in the record regarding post-April
efforts to deal further with the business picture.
051f the work formerly performed by, or work that would be performed by, the dis-
chargees if not discharged, was thereafter performed only by using other regular em-
ployees at overtime rates, the saving claimed to result from the discharges might well be
illusory. But no clear or convincing picture on that score has been developed. Nor
would occasional or sporadic overtime of one or a few regular employees in scooter or
receiving work establish that it would have been cheaper to retain two or three men
working a full 5 -day week.
°° Apparently Jayne filed an unfair labor practice charge on August 10, 1962.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an appropriate unit, it is apparent that by adopting the premise above described,
the Respondent had closed its mind to a good-faith consideration that the Union,
with a majority of employee authorization cards, was legally entitled to recognition
as collective-bargaining agent. In addition to closing its own mind on the subject,
Respondent, by communicating its doctrine to the employees, had raised a substantial
obstacle to the Union's being able to become the bargaining agent by cards from the
employees designating it as such. And the final string to Respondent's bow is that
since he had informed the employees that they could not and were not designating the
Union as their bargaining agent by signing cards that so stated, a majority of such
cards in the hands of the Union was meaningless except for the purpose of securing
an election, to which Respondent, in the first place, was, in any event, entitled as a
matter of right and as a condition precedent to recognizing the Union.
The Act, of course, could have provided that an employer is under no legal
obligation to recognize and to bargain with a union as collective-bargaining agent
unless the union has first been certified in a Board election. The law as presently
written and interpreted, however, imposes no such requirement. The representative,
"designated or selected for the purposes of collective-bargaining by the majority
of the emloyees in a unit appropriate for such purposes, shall be the exclusive rep-
resentative of all the employees in such unit for the purposes of collective bargaining
.." and it is a violation of the Act "to refuse to bargain collectively with the rep-
resentatives . . ." so designated or selected 67
The familiar and well-established rule applicable to the instant case had been
stated by the Board and the courts as follows:
Respondent contends that it had no duty to bargain until the Union had
established its majority status by a Board election. There is no absolute right
vested in the employer to demand an election. . . If an employer in good
faith doubts the Union's majority, he may, without violating the Act, refuse
to recognize the Union until its claim is established by a Board election. A
doubt professed by an employer as to the Union's majority claim must be genuine.
Otherwise the employer had a duty to bargain and may not insist upon an
election.68
An employer refuses to bargain if its insistence on an election is not motivated
by a bona fide doubt as to the Union's status but by a rejection of the collective-
bargaining obligation or by a desire to gain time within which to undermine the
union.69
In the light of Respondent's unfair labor practices from the time of the Union's
initial appearance and both before and after the claim of majority and request for
recognition on April 5, 1962 (and on April 13, 17, 30, the dates of the union petitions
and the consent-election agreement), it is found that Respondent did not entertain a
good-faith doubt regarding the Union's claimed status as representative of a majority
of the employees in an appropriate unit.70 It is further found that Respondent's con-
duct constituted an effort to undermine the Union's status and to render a free
election impossible in any unit and that Respondent has refused to bargain in
violation of Section 8 (a) (1) and (5) of the Act 71
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
-Sections 8(a) (5) and 9 ( a). See also United Butchers Abattoir, Inc., 123 NLRB
946, 957.
ea NLRB. v. Trimfit of California, Inc., 211 F. 2d 206 , 209 (C A. 9).
09 Joy Silk Mills, Inc., 85 NLRB 1263 , 1264 , enfd. 185 F. 2d 732 , 741 (C.A.D.C.)
N.L R B v. Southeastern Rubber Mfg. Co., Inc., 213 F. 2d 11 (C.A. 5) ; N.L.R.B. v. Harry
Epstein, et al. d/b /a Top Mode Manufacturing Co., 203 F. 2d 482, 484 (C.A. 3), cert
denied 347 II S 912; N.L.R.B. v. Pyne Molding Corporation, 226 F. 2d 818, 821 (C.A. 2) ;
N L.R B. v. Inter-City Advertising Co. of Charlotte, N.C., Inc., et al, 190 F. 2d 420, 421
(CA. 4), cert. denied 342 U. S. 908.
70 Whether the unit was multiplant or single plant in scope, the Respondent had refused
to accord recognition to the Union
71 As previously stated, Respondent 's basic position had closed its mind to a good-faith
consideration of the Union's claim ; Respondent never actually reached the point of seri-
ously considering the said claim but assumed the risk both as to unit and majority inherent
in its own legally vulnerable position.
PETERSON BROTHERS, INC. 707
With respect to the unlawful refusal to bargain, it is recommended that Respondent,
upon request, bargain collectively with the Union and, if an understanding is reached,
that such understanding be embodied in a signed agreement.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union, International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO, Local 433, is a labor organization
within the meaning of the Act.
3. All production and maintenance employees employed in the Peterson Brothers,
Inc., plants, including the Diversified Products Division, in Jacksonville, Florida,
excluding office clerical employees, salesmen, professional employees, guards, watch-
men, and supervisors as defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of the Act.
4. At all times since April 5, 1962, the above labor organization has been, and
now is, the exclusive representative of all the employees in the above appropriate
unit, for the purpose of collective bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing to recognize and to bargain with the Union on and after April 5,
1962, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) and (5) of the Act.
6. By various acts, conduct, and statements set forth in section 4 of the findings of
fact hereinabove, Respondent has engaged in unfair labor practices within the mean-
ing of Section 8 (a)( I) of the Act.
7. Respondent has not violated Section 8(a)(3) of the Act by the discharge of
employees, Spires, Bullington, and Jayne.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record, it is recommended that Respondent, including its division, Diversi-
fied Products, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages, hours, and other terms and
conditions of employment with International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 433, as the ex-
clusive representative of all its employees in the following appropriate unit:
All production and maintenance employees employed in the Peterson Brothers,
Inc., plants, including the Diversified Products Division, in Jacksonville, Florida,
excluding office clerical employees, salesmen, professional employees, guards,
watchmen, and supervisors as defined in the Act.
(b) Interrogating , threatening , or interfering with its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
(c) In any like or related manner interfering with , restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the ex-
clusive representative of employees in the above-described unit.
(b) Post , at its plants in Jacksonville , Florida, copies of the attached notice
marked "Appendix." 72 Copies of said notice, to be furnished by the Regional Di-
rector for the Twelfth Region, shall, after having been duly signed by the Respond-
ent's representative, be posted by Respondent immediately upon receipt thereof, and
be maintained by it for a period of at least 60 consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted . Reasonable
72 In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the wards "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted far the words "A Deci-
sion and Order."
727-083-64-vol. 144-46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steps shall be taken by Respondent to insure that said notices are not altered, de-
faced , or covered by any other material.
(c) Notify the Regional Director for the Twelfth Region , in writing, within 20
days from the receipt of this Report , what steps the Respondent has taken to comply
therewith . 73 Unless Respondent shall , within the prescribed period , notify the said
Regional Director that it will comply , it is recommended that the Board issue an
order requiring Respondent to do so.
73 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees:
Upon request we will bargain collectively with International Brotherhood of
Boilermakers , Iron Ship Builders , Blacksmiths , Forgers and Helpers, AFL-CIO,
Local 433, as the exclusive representative of all production and maintenance
employees at our two Jacksonville , Florida, plants, Peterson and Diversified,
with respect to wages, hours, and conditions of employment and, if agreement
is reached , embody it in a signed agreement . Excluded from the bargaining unit
are office clerical employees, salesmen , professional employees , guards, watch-
men, and supervisors as defined in the law.
WE WILL NOT interrogate or threaten our employees with loss or detriment
because of their exercise of their rights under the law to join a labor organization.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist the above-named Union , or any labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any and all such activities.
PETERSON BROTHERS, INC.,
DIVERSIFIED PRODUCTS 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, Ross
Building, 112 East Cass Street, Tampa 2, Florida, Telephone No. 223-4623,
if they have any question concerning this notice or compliance with its provisions.
Piggly Wiggly California Company and Hotel , Motel & Restau-
rant Employees & Bartenders Union , Local 694, affiliated with
Hotel and Restaurant Employees and Bartenders International
Union , AFL-CIO,' Petitioner. Case No. 21-RC--8355. Septem-
ber 19, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Howard
The name of the Petitioner appears as amended at the hearing.
144 NLRB No. 66.