Smeco Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1965

151 N.L.R.B. 1240 (N.L.R.B. 1965)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
movement of oil through the pipeline system, using telephone and
telegraph equipment , and to a degree merely following the direc-
tions of supervisors.
Since that time the control of the system has been in large part
automated . As a result the dispatchers now regulate the pumping
system by remote control , operating from control panels in Dallas
rather than by relaying instructions , and using their own discretion
to a greater extent than formerly.
Despite the change in the way they do their work, the dispatchers
still are engaged in essentially the same function they performed
when the Board , in 1945, held them to be operational employees
properly included in the unit.
It may well be that the operation of the automated control system
makes the dispatchers technical employees . However, even if they
are, we believe, contrary to the position of the Employer and Inter-
venor, that the community of interest which impelled their original
inclusion in the unit has not been destroyed by the change in which
they perform the same function .3
[The Board denied the petition to clarify certification.]
3 See The Sheffield Corporation, 134 NLRB 1101, 1103-1104.
Smeco Industries , Inc. and International Brotherhood of Boiler-
makers, Iron Shipbuilders , Blacksmiths, Forgers and Helpers,
AFL-CIO. Case No. 13-CA-612. March 29, 1965
DECISION AND ORDER
On November 12, 1964, Trial Examiner William J. Brown issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision . The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices and recommended
dismissal of the complaint as to them. Thereafter the Respondent
filed exceptions to that portion of the Trial Examiner 's Decision in
which it was found to have violated the Act and filed a brief in
support thereof . The General Counsel filed cross -exceptions to the
Trial Examiner 's failure to make certain findings and conclusions
and filed briefs in support thereof and in support of the remainder
of the Trial Examiner 's Decision.
151 NLRB No. 123.
SMECO INDUSTRIES, INC. 1241
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, as modified
herein, and orders that the Respondent, Smeco Industries, Inc., its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as so modified :
1. Paragraph 1(b) is modified to read as follows :
"(b) Discouraging membership in the Union or any other labor
organization of its employees by discharging employees, by trans-
ferring employees to more arduous or less desirable work tasks, or
in any other manner discriminating against employees on the basis
of their union membership or activities."
2. Add the following after the second indented paragraph of the
notice to all employees attached to the Trial Examiner's Decision as
the Appendix :
WE WILL NOT discourage membership in, or activities on behalf
of, International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any
other union, by discharging our employees, by transferring our
employees to more arduous or less desirable work tasks, or in any
other manner discriminating against them in regard to their
hire or tenure of employment or any terms or conditions of
employment because of their union membership or activities.
'The Respondent 's request for oral argument is denied as the record and briefs ade-
quately present the issues and the positions of the parties.
2 The General Counsel contends that the Trial Examiner erred in excluding the au-
thorization card of Fred Lechner because it does not show the name of his employer in
the space provided therefor . We find merit in this contention . Since Lechner testified
that he had been employed by Smeco at all material times and authenticated his signa-
ture , we find that the failure to include the name of his employer does not invalidate his
card See Knickerbocker Plastic Co , Inc., 104 NLRB 514, footnote 3.
We do not pass upon the Trial Examiner ' s failure to find Balicek 's request to Globke
to report any solicitation on behalf of the Union to be violative of Section 8(a) (1), since
he has also found the same conversation to be interrogation violative of 8(a) (1).
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10 of the National Labor Relations Act, as amended,
hereinafter called the Act , was heard before Trial Examiner William J. Brown at
Chicago, Illinois , May 18 to 22 and June 23 to 25, 1964.1 The original charge of
unfair labor practice was filed January 13; thereafter the complaint herein was issued
March 20, 1964, by the General Counsel of the National Labor Relations Board act-
ing through the Board 's Regional Director for Region 13. The complaint as amended
alleged the commission of unfair labor practices defined in Section 8 (a) (1), (3), and
(5) of the Act on the part of the above -indicated Respondent , hereinafter sometimes
referred to as Smeco or the Company. Specifically, the complaint alleged interroga-
tion and surveillance of employees ' activities on behalf of the above -captioned
Charging Party, hereinafter sometimes referred to as the Union , the discriminatory
discharge of two named employees , and transfer of a third in reprisal for their union
activity and the unlawful refusal to bargain collectively with the Union.
As amended at the hearing , it added the allegation that Smeco granted employees
a wage increase on or about February 24, for the purpose of discouraging employee
support of the Union Respondent , admitting the jurisdictional allegations of the
complaint , has denied the commission of the unfair labor practices alleged
At the hearing the General Counsel and the Respondent were represented as above
noted and were accorded full opportunity to present evidence and argument on the
issues . Subsequent to the hearing , they filed briefs which have been duly considered.
Upon the entire record in this proceeding and on the basis of my observation of
the witnesses , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The pleadings and the evidence establish , and I find, that Smeco is a corporation
organized under the laws of the State of Illinois , and maintains its principal place of
business at 4800 South Hoyne Avenue, Chicago, Illinois, where it is engaged in the
business of steel fabrication and erection . During the calendar year 1963 Smeco
manufactured , sold, and shipped from the above place of business finished products
valued in excess of $50,000 to points outside the State of Illinois , and during the same
period purchased from points outside the State of Illinois and caused to be shipped
to its Chicago plant, goods valued in excess of $50 ,000. I find, as Smeco concedes,
that it is, and has been at all material times, an employer engaged in commerce within
the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find in accordance with the pleadings and evidence herein that the Union is a
labor organization within the purview of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction to the issues; summary of events
Smeco has been engaged for some 38 years in the business of steel fabrication and
erection . Essentially, its production operations are in response to customer orders
and it does not oidinarily produce for its own inventory . John Opie is Smeco 's owner
and president ; Joseph Gabriel is executive vice president. Beneath these two, organi-
zational lines are somewhat indistinct . It does appear that Charles Balicek, plant
superintendent , with 25 years ' service with the Company , is in general charge of pro-
duction operations with George Vavrosky , shop foreman with 9 years ' service, and
John Yucas , foreman of packinghouse operations immediately under Balicek. Under
Yucas and Vavrosky are six or seven department foremen, alleged by the General
Counsel to be employees within the bargaining unit and by Smeco to be supervisors
excluded therefrom . Their status is considered hereinafter.
Reference has been made above to the field erection aspect of Smeco's business.
The evidence indicates that the erection work is considerably seasonal although
Smeco seeks to maintain on a year-round basis a nucleus for its erection crews.
' Dates hereinafter refer to the year 1964 unless otherwise indicated.
SMECO INDUSTRIES, INC. 1243
Smeco field employees while engaged in outside erection work are coveted under a
collective-bargaining agreement with the International Association of Bridge , Struc-
tural and Ornamental Iron Workers, Local Union No. 1, or an agreement between
Smeco and the International Brotherhood of Boilermakers , Iron Shipbuilders , Black-
smiths, Forgers and Helpers , AFL-CIO. The parties agree that they are excluded
from a production and maintenance unit.
Smeco also is party to a collective -bargaining agreement with the Chicago Truck-
drivers , Chauffeurs and Helpers Union ( Independent ). Respondent 's only truck-
driver, covered under the drivers' agreement , is William Globke, whose worktime is
divided between outside driving and inside duties associated with production of goods.
His status is in dispute as is hereinafter more fully discussed.
On November 11, 1963, Eli Jesberg, international vice president of the Union,
commenced organizational activities among Smeco employees by distributing leaflets
and authorization cards at the plant gate . At that time Gabriel informed Jesberg of
his and Opie 's opposition to organization of the plant . Jesberg's organizational activ-
ity met with some response and an organizational committee of employees Bruno
Kopec , Joseph "Little Joe" Zielinski , William Globke, and James Heilman formed
the nucleus of an employee organizational force soliciting on behalf of the Union.
The first regular meeting of employee members was held on January 8 at the Five
Star Lounge, a tavern across Hoyne Avenue from the Smeco plant. On January 9,
Jesberg, on behalf of the Union, wrote the Company claiming the right to represent
production and maintenance employees on the basis of a claimed majority represen-
tation, asserting a willingness to have its claim tested by a neutral third party card
check, and requesting a reply. This letter was received by the Company the follow-
ing day, January 10 ; no written reply was ever given, although about 21/2 weeks later,
an informal refusal to meet was given by Gabriel to another union international vice
president , Eberhard , in a casual meeting at the airport.
Shortly after receipt of the Union 's letter demanding recognition Smeco General
Counsel Synek telephoned the Board 's Assistant Regional Director , Martin Schneid,
with whom he was acquainted , and discussed the possible avenues open to the Com-
pany. In the course of this conversation , according to Synek 's testimony, he was
advised by Schneid that the Company could conduct a poll and be guided by the
results thereof . On Monday , January 13, the Union filed a representation petition
submitting in support thereof some 52 2 authorization cards . The following day,
January 14, the Company conducted the straw vote referred to above, the results
being inconclusive as is hereinafter detailed.
In the meantime , employee Eugene Beringer had been laid off on January 10 and
a charge filed by the Union in connection with his layoff . Soon thereafter, about
January 21 , Little Joe Zielinski was transferred temporarily to different duties. On
the same day as Little Joe Zielinski 's transfer , John Opie was in his car on the com-
pany lot at about 6 p.m ., while employees were paying union initiation fees or dues
across the street in the Five Star Lounge. The complaint alleges that Opie on that
occasion engaged in surveillance of these union activities.
About a week after the transfer of Little Joe and the alleged surveillance , employee
James Heilman , shipping and receiving clerk, was terminated under circumstances
hereinafter discussed , and on or about the same day John Opie read a letter of his
own composition to employees assembled in the plant and caused it to be mailed to
them at their homes. The letter refers to the growth and stability of Smeco, to the
departure from the Chicago area of other employees , and to Opie's purpose to
retrench and avoid speculative operations.
Effective February 24, Smeco reduced the workweek and increased the hourly rate.
B. Interference, restraint, and coercion
The Union's organizational campaign at Stucco, as detailed above , commenced
with handbilling at the plant gate on November 11, 1963, resulted in the signing of
2 Jesberg Identified these cards , marked as General Counsel 's Exhibits Nos. 2A-ZZ, as
those turned over to him by employees and committeemen and by him turned over to the
Regional Office. Of the 52, General Counsel's Exhibit Nos. 2-B and 2-CC were never
offered In evidence ; General Counsel's Exhibit No. 2-N is that of Foreman John DeGroot,
and Exhibit No 2-LL is that of Foreman James Miller excludable as hereinafter related ;
General Counsel's Exhibit No. 2-P is that of truckdriver Globke, excludable as herein-
after stated ; General Counsel's Exhibit No. 2-T Is that of Claude Holland, never iden-
tified by Holland and excludable In view of Holland's failure to testify and submission
by him of a card for John Opie ; General Counsel's Exhibit No. 2-Y and General Counsel's
Exhibit No 2-HH that of Ray Martin lack authentication ; General Counsel's Exhibit
No. 2-4-A that of Fred Sechner is excludable for lack of completion.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a sufficient number of authorization cards to support a petition for a Board election,
which petition was filed on January 13, 1964, and, at the time of the hearing in the
instant case, was apparently still pending.
The complaint alleges numerous instances of interrogation of employees on the
part of Respondent's supervisors, threats to employees of reprisal for participation
in union activities, surveillance of union meetings, and like interferences with
employees' freedom to organize under the Act. The complaint also alleges the con-
duct of the straw vote on January 14, referred to above, as an instance of interfer-
ence with employees' organizational rights.
Finally, the complaint, as amended at the hearing pursuant to previous notice of
intention to amend, alleges that the change in hours and rates effected on February 24,
referred to above, amounted to the grant of a wage increase to discourage union
activity. General Counsel's brief apparently constitutes a volte-face in theory since
it characterizes the February 24 change in hours and rates as part of an effort to
strike back at employees in reprisal for their having selected the Union, and contends
that all employees suffered monetary loss as a result of the Company's change in
hours and rates.
The discussion of these alleged instances of interference, restraint, and coercion
proceeds hereinafter on the basis of a breakdown by type of alleged interference.
1. Interrogation
The only instance of unlawful interrogation attributable to John Opie appears to
be based upon his discussion with employee Rudolph Radon in connection with the
latter's employment interview. Radon was interviewed by Opie on Saturday, Janu-
ary 18. According to his testimony, Opie asked him during the course of his talk
on that day a question as to his opinion concerning unions in general. Pressed to
repeat, Radon asserted that the question was directed to the Union. On cross-exami-
nation he repeated his assertion that Opie asked his opinion of the Union. Finally,
Ranon conceded that whatever was in his affidavit was correct and that his affidavit
stated that Opie asked his opinion of unions. Opie denied ever talking to a new man
about unions and asserted that never in his life had he questioned a new man about
unions either in his prehire interview or otherwise. As summarized above, Radon
testified positively that Opie's question was directed to the Union, using himself the
singular, and testified equally positively that Opie's question was directed to unions
in general. While it would appear as a matter of law that either question, whether
directed to the Union or to unions generally, would constitute an unlawful interro-
gation in the circumstances, I cannot regard Radon's testimony in view of its vacilla-
tions as noted above and in view of Opie's credible denial that he asked either ques-
tion, as constituting a preponderance of evidence that Opie asked either or both ques-
tions. I shall recommend dismissal of the allegations relating to interrogation on the
part of John Opie.
With respect to the allegations of interrogation on the part of Plant Superintendent
Charles Balicek, Donald Harvey who was interviewed as an applicant for employ-
ment on January 6 by Opie and Balicek, was, according to his testimony, working on
January 7 when Balicek asked him if he belonged to any union. Harvey replied that
he did not although at his place of previous employment he had been paying initiation
fees. The following day, Harvey signed a card for the Union when he was solicited
to do so by Globke in the Five Star Lounge. Prior to that time, according to Harvey's
testimony, he had heard only as a matter of rumor that a union was seeking to orga-
nize the Smeco employees. Balicek did not deny putting the question attributed to
him by Harvey. I credit Harvey's testimony and find in accordance with it that on
his first day at work Balicek asked him if he belonged to a union. Thereby Respond-
ent engaged in unlawful interrogation and in an unfair labor practice within Section
8(a)(1) of the Act.
Globke testified that sometime in mid-December in front of the plant office, Balicek
took him aside and told him that he understood that he and Kopec were signing men
for the Union; likewise, according to Globke, sometime in January Balicek told him
that he understood somebody was signing people up in the Globe department.
According to Globke, he told Balicek at that time that he just did not know anything
about it. Finally, according to Globke, Balicek asked him sometime after the second
union meeting held on January 17, how many men attended and when Globke said
about 50 or 60 attended, Balicek further asked him who they were and specifically
whether certain named employees, Garfield and Sceredy, attended. This testimony
attributing interrogation to Balicek is undenied and I credit it. I find that Balicek did
put to Globke the questions attributed to him by the latter and that thereby Respond-
ent engaged in unlawful interrogation.
SMECO INDUSTRIES, INC. 1245
According to the testimony of James Heilman, an alleged discriminatee, about a
month after he signed a union authorization card on November 12, 1963, which
would make the date of the interrogation about mid-December, Balicek approached
him and asked what the talk was that was going around about the Union. Sometime
later, in January, according to Heilman, Balicek repeated the same question and
specifically asked if Heilman knew any of the people that were joining. Again on
the day of the second union meeting, Heilman walked into the office and found
Balicek and Vavrosky there; Heilman testified that they asked him if he was going
across the street to the union meetmo that night. I appraise the intensive cross-
examination of Heilman as not substantially affecting the credibility of his testimony
on direct examination and I credit his accounts attributing to Balicek the interroga-
tion referred to above. However, appraising the testimony of Heilman concerning
the occasion when he chanced upon Balicek and Vavrosky in the office and the ensu-
ing conversation about the possibility of buying a drink at the meeting across the
street in the Five Star Lounge, this appears to be no more than friendly bantering
among people who on occasion socialize together, and I do not find any unlawful
interrogation on this latter occasion. The other instances attributed to Balicek above,
however, I find borne out by Heilman's testimony and I find that in those respects
he engaged on behalf of Respondent in unlawful interrogation.
Bruno Kopec who has been employed for about 5 years as a laborer for Smeco,
testified that on the day preceding one of the union meetings, apparently the meeting
of January 17, Balicek, accompanied by Vavrosky, asked him if he would buy them
a drink and if he was going to the union meeting. Also sometime during the course
of the organizational campaign, Balicek, according to Kopec, asked him and Globke
if they knew anyone who had signed up for the Union. It appears from his cross-
examination that the interrogation about buying a beer for Balrcek and Vavrosky was
set against a background of mutual beer-buying among the three, and would not
appear to constitute unlawful interference. The questioning attributed by Kopec to
Balicek as to the identity of who was organizing the plant, and I credit Kopec's testi-
mony concerning this conversation, does appear to constitute an instance of illegal
interrogation as to the identity of union solicitors, and I find that by this latter ques-
tioning Respondent, through Balicek, engaged in interference, restraint, and coercion.
The complaint also alleges interrogation on the part of Gerd Wilken, Smeco's weld-
ing department foreman and an admitted supervisor, and employees Harvey, Globke,
and Little Joe Zielinski testified in this regard. Donald Harvey testified that Wilken
came to him at work on January 9 and asked him if anyone had approached him
concerning the Union. About 3 days later, according to Harvey, Wilken repeated
the question and again repeated the same question two or three more times later.
Finally, about 2 weeks after the last occasion of Wilken's questioning him as to
whether he had been approached by someone for the Union, Wilken asked him if he
had attended the union meeting. Wilken conceded that he asked Donald Harvey on
one occasion whether anyone had approached him about the Union; asked whether
he put any additional questions to Harvey, his answer was none that he could recall.
I credit Harvey's testimony attributing the several instances of interrogation to Wilken.
According to the testimony of Little Joe Zielinski, Wilken talked to him the day
after the first union meeting of January 8, and asked him whether he attended the
meeting and what was discussed at it. According to him Wilken again asked him,
following the second union meeting, what was discussed at it. Wilken admitted ask-
ing Zielinski questions about a union meeting. I credit Zielinski's testimony and find
that Wilken put the questions referred to therein.
According to the testimony of Globke, Wilken came up to him on the day before
the first union meeting and asked him if he was going to attend it. Nothing further
was said according to Globke after be answered Wilken that he did plan to attend
the meeting. According to Wilken's account of this conversation it was opened by
Globke asking him if he was going to the meeting, a question to which Wilken replied
that he was not and asked if Globke was going. I credit Wilken's account of this
conversation to the extent that it varies from Globke's and find that the evidence is
wanting in support of the allegations that Wilken unlawfully interrogated Globke.
The questioning of Zielinski and Harvey referred to above, however, constitutes inter-
ference within Section 8 (a) (1) of the Act.
Finally, interrogation is charged to Respondent through the agency of George
Vavrosky. Globke testified that sometime in January and apparently prior to the
first meeting on January 8, although Globke was uncertain as to the exact date,
Vavrosky came to him and asked him if he planned to attend the meetings. Vavrosky
candidly admitted this questioning, explaining it on the basis that he was curious to
know why Globke would be interested in attending union meetings in view of the
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that he was covered by the Teamsters contract While Vavrosky's curiosity is
understandable the fact remains that he did put the direct question to Globke as to
whether he planned to attend the meetings. Thereby Smeco, through Vavrosky,
engaged in interference, restraint, and coercion.
Employee Joseph Lisak, layout man working under Vavrosky, testified that some-
time in January or February during the lunch hour Vavrosky asked him what he
thought of the union situation. It appears that Lisak is a good friend of Vavrosky
and eats lunch in the shop with him every day. It appears that this question is nothing
more than a casual comment interspersed amidst general conversation among people
on intimate terms and by no means formed a part of any pattern of interference.
As detailed elsewhere in this Decision, I find other instances of interrogation and
other acts of interference but this conversation at lunch between Vavrosky and Lisak
appears to be outside the pattern and entirely casual in nature. I find no interference
in this conversation. There appears to have been an intimate friendship making such
a casual query natural, almost inevitable. Furthermore, this casual talk fell short
of any attempt to pry into identity of union adherents on their activities.
2. Orders to report employees engaged in union activity
The complaint alleges that Plant Superintendent Balicek instructed employees in
the first part of January 1964 to report the names of other employees engaged in
union activities. Globke testified that sometime in January Balicek approached him
in the plant and said that he understood somebody was signing people up in the
Globe department, that everything was going smooth and he did not want it spoiled
and that if Globke saw anything to let him know.
Bruno Kopec testified that sometime, apparently in January 1964, Balicek took him
aside and told him that if he knew who was organizing for the Union he should turn
them in. On cross-examination Kopec's account was that a fellow employee was
working with him during this conversation when Balicek approached him and asked
him if he was an organizer for the Union and then explained that Balicek heard he
was an organizer and had been signing other employees I think it improbable that
Balicek would order Kopec to turn in union supporters if he believed or had reason
to believe that Kopec was himself a union supporter and I do not credit Kopec's
account of this matter.
Globke's testimony is undenied by Balicek and I find in accordance with Globke's
account that Balicek instructed him to report any solicitation. Without more, this
would not involve unlawful interference since Balicek could well have been doing
nothing more than insuring that there would be no interference with production by
soliciting on worktime. This count of the complaint is not sustained by the evidence.
3. Threats of discharge or reprisal for participation in union activities
The complaint alleges threats on the part of Opie, Balicek, and Vavrosky in the
period between November 1963 and January 1964. At the conclusion of the Gen-
eral Counsel's case the Trial Examiner granted Respondent's motion to dismiss the
counts of the complaint relating to alleged interrogation and threats on the part of
Vavrosky.
Eugene Beringer, an alleged discriminatee, testified that on December 17, 3 days
before he signed a card for the Union, in the mid-afternoon while he was running
his lathe Opie came up to him and said he heard that Beringer was talking for the
Union and when Beringer denied it Opie continued the conversation by saying that
he could move out just like the Globe Company did. Opie testified that sometime in
the middle of 1963, while he was talking with Beringer about different things he did
say that the Globe Company had moved their plant because of the vicious union they
had. I credit Beringer's account of this conversation and the time that it occurred.
The conjoining of union activity and plant removal plainly constituted a threat and
interference within Section 8(a)(1). In crediting Beringer's account I do not rely
on the General Counsel's position that Beringer's testimony is corroborated by that
of Butterworth, inasmuch as Butterworth's contribution to the evidence on this score
is an assertion that Beringer appeared at the time to be somewhat nervous, testimony
which seems to me to be quite valueless.
According to the testimony of James Heilman, also an alleged discriminatee, on
the day of the second union meeting, January 17, 1964, and about a half hour after
the conversation concerning buying drinks with Balicek and Vavrosky, Opie came
to him at work and told him that if he went to the union meeting he need not come
SMECO INDUSTRIES, INC. 1247
to work on Monday morning. Opie denied this, although his testimony indicates
that sometime about January of 1964, he observed Heilman appearing to be sick and
pale at work and he told him he should not be working but should go straight home
and stay in bed. Making due allowance for Heilman's interest in the outcome of
the instant case, I found him credible in his account of this conversation, and find
that Respondent thereby engaged in interference within Section 8(a)(1).
The General Counsel contends that a letter from John Opie to employees, in evi-
dence as General Counsel's Exhibit No 10, which was read in the plant to assem-
bled employees on January 28 and also sent by mail to them at their homes consti-
tutes a threat to cut back operations if the Union succeeded in its organizational
efforts. General Counsel relies both on the letter itself and on the testimony of
Foreman DeGroot to the effect that during the course of the reading of the letter
Opie interpolated, after a reference to Smeco's ownership of 4 acres in the Denver
area, the words "See I'm always thinking."
The letter consists in the main of a review of the history of Opie's efforts in build-
ing up a substantial business. It also plainly conveys the message that Smeco is
flexible and could make a profit notwithstanding a substantial reduction in its number
of employees. I credit DeGroot's testimony, which is undenied by Opie, that after
referring to available acreage in Denver Opie interpolated the words "see I'm always
thinking."
I do not find the sinister implications in this interpolation the General Counsel
apparently would attribute to it. But I do see an implied threat of reprisal in the
nature of a reduction in force or an abandonment of the Chicago operations in the
paragraph immediately following which calls upon employees "in making your deci-
sions." I find this to be an obvious reference to the organizational campaign then
under way and a direction that employees should take account of other employers
who left the Chicago area and who had a reason for leaving. Although this is by
no means the obvious intimidation that the General Counsel would see in it, I think
the evidence preponderates in favor of the conclusion that the letter, coming in the
midst of an organizational campaign which Smeco undoubtedly opposed, would most
probably be understood by employees as a threat to move the operations or reduce
the work force if the Union succeeded in organizing.
General Counsel's Exhibit No. 12 is a letter addressed in reply to an inquiry from
an employee's wife. The reply was reproduced and placed in a pile near the office.
Layout man Lisak was told by Onie to take one and read it. It constitutes a plain
threat to reduce operations if the Union succeeded in organization and an additional
act of interference within Section 8(a)( I).
4. Surveillance of union activities
As amended at the hearing, the complaint alleges that Respondent, through Opie
and Balicek on January 21, kept under surveillance the activities of the Union and
the concerted activities of its employees looking to collective bargaining and mutual
aid and protection.
As detailed above, the union meetings were held in the Five Star Lounge at about
5 p.m on January 8 and 17 The scheduling of the meetings was known in advance
to the Smeco supervisors. The evidence indicates that the Five Star Lounge was a
natural gathering place for employees and accordingly a gathering point for employee
and nonemployee organizers for the Union. On January 21, after work, a number
of employees were engaged in paying their initiation fees or dues at the Five Star
Lounge. The evidence establishes that the entrance to the Five Star Lounge is directly
across Hoyne Avenue from the loading platform of the Smeco plant which is the
area where Opie regularly parks his car. The evidence also establishes that in the
normal course of leaving the plant in the evening Opie would so maneuver his motor
vehicle that at one stage it would be facing directly across Hoyne toward the Five
Star Lounge entrance so that about 6 p.m. in January normal operations would have
the lights of Opie's car shining, at least momentarily, directly on the Five Star Lounge
entrance.
The General Counsel's theory of the case is that on January 21 while employees
were assembled for dues-paying purposes, Opie departed from his normal schedule
of exit and halted for a period of about 10 minutes at the points where he would
leave the Smeco driveway and turn into Hoyne Avenue and in that period engaged
in surveillance by flashing his lights on and off as people entered and left the Five
Star Lounge while Balicek stood beside the car with a pencil and paper presumably
making note of the identity of employees entering and leaving.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's first witness on this aspect of the case was Stanley Bozek
presented as an independent nonemployee witness. He was a long-time resident of
the area about the Five Star Lounge where he lived for some 15 years. According
to Bozek he frequently stopped at the Five Star Lounge for a beverage on the way
home from work and became acquainted to some degree with employees of Smeco.
Also from his long residence in the neighborhood he knew Opie by sight. On a night
toward the latter part of January 1964, while he was in the Five Star Lounge he saw
Opie in his car in the Smeco driveway headed toward the Five Star Lounge entrance
and observed the lights flashing on and off. According to Bozek there was a man
standing beside him with some kind of a pad on which he was writing. He observed
them for about a half an hour ending about 6 p.m. According to Bozek it was only
semidark and the street lights were on.
Stanley Zaporowitz, an employee and card signer for the Union, testified that he
was paying his initiation fee a little after 5 p.m. on the evening of January 21, 1964.
He also testified that as he left the tavern he saw Mr. Opie sitting in his car in the
driveway with Balicek standing beside him, the car being faced toward the Five Star
Lounge entrance. He could not remember Balicek holding anything. According to
Zaporowitz the following day at work Bahcek told him that he spent too much time
in the tavern and that he, Balicek, knew what Zaporowitz was doing there. While
Zaporowitz was most impressive as a witness and I found him thoroughly credible he
was not asked as to whether he saw any flashing of headlights and his testimony must
be regarded only as establishing that on the night of January 21, Opie and Balicek
were in the driveway and Opie's car was pointed toward the Five Star Lounge door.
His testimony that on the following day Balicek referred to his being in the tavern
and that Balicek said he knew what he was doing there would have to be regarded as
insufficient to establish surveillance unless there were other evidence of surveillance.
On this aspect of the case General Counsel called as a witness William Globke,
the truckdriver referred to above, who testified that he was at the Five Star Lounge
on the evening of January 21 and, while seated at the bar, he observed lights flashing
on and off and upon looking out the window he saw Opie in his car and Balicek
standing beside him with a pad and a pencil and as the fellows left the tavern the
lights would go on and off. According to Globke, Balicek was holding a white tablet
and a yellow pencil. He conceded inability to see whether or not an eraser was on
the end of it. I find his account somewhat short of convincing.
According to Opie and Balicek there was an occasion when there was some flash-
ing of the lights on the part of Opie's car in early evening as it was in the driveway
faced toward the Five Star Lounge door. They testified that the event occurred on
January 17. They felt positive of the date because they had been told earlier during
the daytime by employee Claude Holland that such a meeting would be held and he
offered to be "company's boy" and report to management on the union activities con-
ducted at the meeting.
Balicek testified that he had a newspaper in his hand as he stood beside Opie's car
for about 5 or 10 minutes during which time he observed no flashing or flickering
of the head lights. Balicek did concede that he observed Stanley Zaporowitz but
could not recall anyone else leaving the tavern while he was there with Opie. Opie
conceded that on the occasion in question he observed a car across the street, dimmed
his lights and then flashed them on to observe who was in the car which he identified
as that of employee Marcinek. This was after Balicek had left him according to
Opie. Opie explained that he was more or less bewildered at the unionization of his
shop which disrupted, according to him, the peaceful life they had led in the shop
for 37 years.
None of the witnesses on either side of the picture with respect to this episode of
surveillance were outstandingly convincing on the stand, except for Zaporowitz whom
I credit thoroughly. His testimony, of course, only places Opie and Balicek on the
scene on the night of January 21 and also establishes that on the following day
Bahcek referred to his being in the tavern on the particular evening. In view of
Zaporowitz' testimony and Opie's concession that he flashed his lights on Marcinek's
car and that he was bewildered because of the disruption of Smeco's peaceful exist-
ence, I find the evidence preponderates in favor of the conclusion that there was
surveillance on the occasion in question.
5. The Employer-conducted election
The circumstances surrounding the preparation for the straw ballot taken on Janu-
ary 14 have been outlined above. The ballot in use for the Company's poll was a
sheet of clean white paper approximately 4 by 41/z inches labeled "Secret Ballot"
with the question "Do you wish to be represented for the purpose of collective bar-
SMECO INDUSTRIES, INC. 1249
gaining by the International Brotherhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers, and Helpers, AFL-CIO?" followed by two squares vertically arranged
with the "No" on top and the "Yes" on the bottom. The ballots were handed out just
before lunch time, apparently, with the employees' paychecks and with instructions
that employees were to deposit them in the ballot box at the timeclock as they punched
out that evening.
The employees themselves deposited the ballots in the box while Timekeeper Walter
Steele punched their cards out for them. Some 15 feet away from the ballot box
Bahcek and Opie were in Opie's office during that time. According to Heilman,
Gabriel told employees that the Company had been notified of the Union's claim
and wanted to find out if it was accurate, he did not tell them how to vote but said
that it was entirely up to them and that there would be no reprisals if they voted for
the Union. Management officials counted the ballots right after the election. The
parties have stipulated that the tally shows 16 No, 4 Yes, 5 marked both Yes and No,
4 blank pieces of paper, and 34 unmarked ballots.
Inasmuch as Synek's account of his conversation with Schneid was undenied by
the latter, there is no factual issue in this area of the case. The question appears to
be solely one of the lawfulness of the Company's admitted conduct of a ballot fol-
lowing undenied advice from the Regional Office that it could be done.
In view of the uncontradicted and credited testimony that the poll was undertaken
upon the advice from a representative of the Regional Office that it would be permis-
sible and the further uncontradicted testimony that Gabriel assured employees that
they were free to vote without reprisal, the circumstances surrounding the taking of
the poll would, in this particular case, not appear to warrant the imposition of
sanctions.
6. The wage and hour changes of February 24
As amended, the complaint alleged that on or about February 24 Respondent
"granted to its employees a wage increase for the purpose of discouraging member-
ship in and activities on behalf of the Union." An additional amendment was made
at the hearing so that as finally amended this count of the complaint alleged that on
February 24 Respondent reduced the hours of employment and granted to its employ-
ees a wage increase for the purpose of discouraging membership in, and activities on
behalf of, the Union. 'General Counsel's brief asserts that the February 24 change
in wages and hours was an effort to strike back at the employees, that all employees
suffered monetary loss and that the record conclusively demonstrates that the Com-
pany wanted to give employees a taste of what was in store should they persist in
unionization.
When Vice President Gabriel first became associated with Smeco the regularly
scheduled workweek consisted of 50 hours. Gabriel sought to eliminate or curtail
premium pay for overtime. Opie and Balicek opposed the elimination of overtime
on the grounds that the work force had become accustomed to a 50-hour week with
its accompanying overtime premium pay. Sometime in 1958 the workweek was
gradually reduced to 45 hours. At that time in order to offset the financial loss to
the work force, general increases of 5 and 10 cents per hour were given. At the con-
clusion of 1963 the regularly scheduled workweek was down to 45 hours, Monday
through Friday on a schedule of 7:30 a.m. to 5 p.m. with a half-hour out for lunch.
There was no regularly scheduled Saturday or Sunday overtime.
According to Gabriel's testimony which I credit he persisted in urging Opie to
reduce to a regular 40-hour week and eliminate premium pay except for emergency
situations.
On February 24, while Gabriel was absent attending a business meeting on the
west coast, a bulletin board notice was posted under the signature of Opie announcing
that effective February 24 the work schedule would be 8 hours per day Monday
through Friday, 8 a.m. to 4:30 p.m. Also announced at that time was an across-the-
board 10-cent raise effective February 24.
It appears from Gabriel's testimony that although Saturday overtime was elimi-
nated in 1963, the February 24, 1964, change in hours necessitated the reinstatement
of Saturday overtime and most of the employees have worked overtime on Saturdays
for 41/2 hours since the February 24 change.
While the burden is not on the Respondent to justify wage adjustments, it is not
improper to infer that a change in wages at a time when an organizational campaign
is pending could amount to improper interference with employees organizational
rights where the change in wages and hours is shown to be out of the ordinary course
of events in the particular company. It quite plainly appears from Gabriel's testi-
mony that although the Company sometimes responds to area pressures on the gen-
783--133--66-vol. 151-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral wage level in order to keep and attract suitable employees, its basic policy is to
give individual merit increases and it is only through intraplant "grapevine" pressures
that the individual merit adjustments become more or less generalized. The Febru-
ary 24 increase was plainly an across-the-board increase. The reason for it, namely,
the elimination of premium time, does not ring true in view of the concession that
Saturday work was regularly scheduled for most of the employees thereafter. I find
and conclude that the necessary and intended effect of the February 24 adjustment
in wages and hours was to affect the organizational campaign of the Union by making
the employees work on Saturdays for a weekly wage not significantly different from
their wage prior to the change.
C. Discrimination
1. Eugene Beringer
Beringer was hired at Smeco in September 1961 as a machinist. He had previously
worked at his trade for some 14 years with the Globe Company and when Smeco
purchased the fee machine operations of Globe Company he was hired by Gabriel.
Beringer appears to have been a relatively competent machinist with only a few
instances of faulty workmanship. He appears to have had some personality difficul-
ties with Vavrosky and with a tool crib attendant known as Big Ed but these do not
appear to have played a significant role in his employment history or his termination
He received a card from Jesberg on the occasion of the latter's November 11, 1963,
solicitation at the plant gate but did not sign it until December 20. About 4 days
before he signed the card Opie came to him at work and said he had heard talk that
Beringer was talking about the Union. According to Beringer this followed about
a day or two after Balicek had told him to watch his talk about the Union. Beringer
apparently felt that Balicek was a tough boss and not particularly friendly to him.
Although evidence is wanting to indicate that Beringer played any active role in the
Union's campaign at Smeco, and indeed the fact that he held the card for more than
a month before signing it, would tend to indicate that he was not among its foremost
protagonists, Opie testified that throughout his employment at Smeco Beringer often
referred to his membership in the union while at the Globe Company. There is no
indication what union was there involved.
Beringer was laid off at about 4 30 on January 10. His,instant reaction was to
inquire of Balicek as to why Butterworth, who had 1 year's less seniority, had not
been laid off instead. Balicek claimed ignorance on this point but replied that
Beringer was about to retire soon in any event. A short time thereafter Opie, when
questioned by Beringer, said that there was a layoff necessary and Butterworth had
been retained in preference to Beringer because Butterworth lived near the plant and
the Company had no seniority policy. While the evidence clearly indicates that
Butterworth lives in the immediate vicinity of Smeco's plant and Beringer lives a
considerable distance away, it does not appear that this distance ever interfered with
Beringer's proper attendance at work.
The evidence indicates that there was considerable fluctuation in the volume of
work to be handled by the machine shop and, sometime shortly before Beringer's
layoff, a production line in the fee department had terminated resulting in the avail-
ability of machinists Poloway and Gerald Murphy for assignment to the machine
shop.
At the time he was hired by Smeco, Beringer initially expressed a disinterest in
employment with Smeco on the grounds that he planned to retire When he subse-
quently agreed to accept Gabriel's offer of employment he stated that his employ-
ment would be only for a short period. On various occasions thereafter, according
to Gabriel, Beringer told him that he planned on retiring definitely early in 1964.
Beringer, who actually became 62 years of age a little over a month before the hear-
ing, conceded that at the time of his hire he told Gabriel that he was going to retire
pretty soon and that he frequently told his fellow employees of his intentions for
early retirement.
According to Beringer he changed his mind about retiring at the age of 62 some-
time in January of 1962 when he learned his retirement income would be less than
he had anticipated. He conceded that he never told Opie or Gabriel of his change
in plans and that he did not tell other employees of this change. In fact, according
to Beringer, when Opie engaged him in conversation about the Union Beringer dis-
claimed any interest in the Union on the ground that he intended to retire pretty
soon. Beringer also candidly conceded that all the employees assigned to the machine
shop had more seniority with Smeco than he did except for Butterworth.
SMECO INDUSTRIES, INC. 1251
In viewing the evidence in its totality with respect to the layoff of Beringer it
appears that his layoff is shown to be that of a junior employee at a time when there
was a downward trend in the volume of work in the department in which he was
assigned. Company records clearly establish this downward trend. The evidence
also indicates limitations in the number of machines Beringer could operate as com-
pared to other machinists. Beringer was not replaced by a new hire. Inasmuch as
there is no seniority practice at the plant it would appear that no controlling signifi-
cance can be given to the fact that the junior man, Butterworth, was kept in
employment.
The only element of the evidence that would give one pause is the apparent reli-
ance by Opie in his conversation on the day of Beringer's termination that Butter-
worth lived closer to the plant. I cannot however find in this somewhat unconvincing
and extraneous reason, any preponderance to tip the scales in favor of a conclusion
of impropriety in the layoff. The burden is not on the Respondent to justify its
actions ; the evidence for the General Counsel does not suffice to make out a case
of discriminatory treatment. I shall recommend dismissal of the count of the com-
plaint alleging an unfair labor practice in the layoff of Eugene Beringer.
2. James Heilman
James Heilman was hired in October of 1963 as shipping and receiving clerk under
the direct supervision of Balicek. He was one of the first to sign an authorization
card for the Union. In addition he is shown by the evidence to have been one of
the committee of four selected by Jesberg to lead the Union's organizational drive
In this latter capacity he visited employees at their homes and actively urged support
for the Union. The evidence warrants the inference, and I make it, that Smeco was
aware of his relatively active role in soliciting for the Union. This appears from his
testimony that Balicek directed him not to solicit in the plant, which testimony I
credit particularly in view of the absence of a denial from Balicek. I also credit
Heilman's testimony that Balicek asked him who was joining up and his testimony
indicating that Opie had knowledge that he was going to the union meetings. On
the basis of these indications, I find that management knew of Heilman's relatively
active role on behalf of the Union.
Reference has been made above to the fact that Heilman's employment was termi-
nated on January 27, 1964. The evidence indicates that the morning of January 27
was extremely cold. Heilman's first responsibility that morning was to direct the
unloading of a 40-foot semitrailer with a number of bags of icon castings designed
for use in the Globe department. While Heilman estimated the volume to be unloaded
as about 150 bags and the invoices conclusively establish that there were 27 bags to
be unloaded, I cannot attach any significance to this variance. The common carrier
truck had proceeded to the back platform to unload, apparently the usual unloading
place for trucks of this size, and there was guided into the unloading area by the
signaling of Heilman.
At that time there was some work in process resting on the floor of the Smeco
parking area that prevented the truck from backing in as deep as it normally would
which would have permitted the doors to be closed around the front end of the truck
during the unloading of the materials. The result was that the doors were closed
only partly around the cab and permitted the cold air to enter the plant. The evidence
also indicates that some volume of cold air could enter from the immediately enjoin-
ing area where part of the wall had been torn down and had a temporary covering
with tarpaulins during the work of installing a railroad siding platform.
Heilman testified that after he finished the unloading Opie told him that he did
not like the way that he handled the job and that he should go home. This, accord-
ing to Heilman, followed after Opie had been watching him in the process for about
15 minutes. While it appears that Heilman's pretrial affidavit refers to Opie's obser-
vation as taking place for only a minute, I do not find in this discrepancy ground for
discrediting Heilman on the essential elements of his testimony.
Opie's account of the occurrences at the time in question is to the effect that he
came upon the back loading platform when the truck was backing in and at that time
Heilman was not in the area. Opie, according to his testimony asked the common
carrier driver where the shipping clerk (Heilman) was and apparently found out that
he was locating a small handtruck to use in connection with the unloading. When
Heilman came to the unloading area Opie asked him why the unloading was not
taking place in front and Heilman explained that that was the regular place for
unloading that type of material for the Globe department. According to Opie he told
Heilman at that time that it was not right to unload at tha place under the circum-
stances of temperature and exposure at that time and he should not do it again.
1252 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
It was at this stage, according to Heilman , that Opie told him that he did not like
his work and he should go home. According to Opie, after he informed Heilman
that he should not unload that way again , Heilman said, "I guess I do not do anything
right here" and Opie said , "In this case you are correct," and left him.
Heilman's account is that after this conversation with Opie he got his coat and
proceeded to the company office. Opie and Balicek were there and Balicek asked
Heilman what happened, to which Heilman replied that since he was talking to Opie
he should know. Heilman asked for his paycheck and was told by Opie that he
would have to come back tomorrow and get his check with the rest of the men. The
following day was the regular scheduled payday. Opie's testimony is that after the
conversation with Heilman at the platform he went to Balicek 's office and talked to
Balicek about the undesirability of loading at the platform in wintertime. Opie said
that it was after that that Heilman came to the office, threw his tool checks on the
desk, and said that he was quitting and wanted his paycheck. Heilman confirmed
Opie's testimony that Steele, the timekeeper , was present in the office at the time he
punched out but according to Heilman he had no conversation at any time on that
morning with Steele. Bahcek corroborated Opie's account about Heilman throwing
tool checks on the desk and stating that he was quitting.
Walter Steels, contrary to Heilman, testified that he did have a conversation with
Heilman prior to the meeting in the company office in the course of which Heilman
came to Steele and said he wanted to quit since he had had trouble with Opie. Steele
said that he directed him to go to the superintendent's office. Steele, however, further
testified that although he was in the office later when Balicek and Heilman were there
he did not hear any conversation other than Balicek's directions to him to punch
Heilman out. Steele testified that he had issued tool checks to Heilman at the time
of the latter's initial employment and that when he entered the office on the second
occasion Heilman's tool checks were on the desk.
As Respondent has forcefully appraised the issue with respect to Heilman's termi-
nation, the issue is one of credibility. Credibility in this instance has been difficult to
determine because I agree with Respondent's appraisal of Steele as a man of rela-
tively independent views on the issues and as far from unimpressive on the stand.
Heilman, however, impressed me with his demeanor and I felt particularly that his
words had the ring of truth when he denied ever having any tool checks issued to
him. It does appear that there would be little need for tool checks to be issued to a
shipping and receiving clerk since he apparently used no tools in his work of the
type that would be accountable for on the tight tool-check system of control. I find
that Opie told Heilman to go home and that this instruction amounted to a discharge.
This resolution of credibility impresses me with the need of crediting Heilman's
account almost in toto. I am also compelled to this conclusion by the clear indica-
tions of Opie's testimony that he saw where the truck was coming in and had a good
indication that there would be unloading in the cold with the door opened and I
think that he seized upon the unloading incident as a pretext to discharge Heilman.
The situation thus becomes one in which a known leader of union activity is released
under circumstances which indicates convincingly to me that the assigned reason for
his separation was not in fact the true reason.
Much has been made of evidence of an incident involving Opie's arranging with
Heilman for the latter to repair his shotgun only a few days before the unloading
incident and the discharge. To me, this only indicates that the discharge was quite
unpremeditated. I rather agree with the General Counsel's appraisal of the situation
as one in which Opie, undoubtedly opposed to unionization of his plant employees,
took the rash and unpremeditated step of reprisal against Heilman for his leadership
in union activities and discharged him.
3. Joseph Zielinski
The complaint alleges that Smeco, in the period February 17 to March 27, 1964,
assigned Zielinski to more arduous and less agreeable job tasks in reprisal for his
membership in and activities on behalf of the Union.
Zielinski, known apparently to his fellow employees and supervisors as "Little Joe"
has been employed for some 9 years with Smeco. He signed a card for the Union,
was a member of the committee of four named by Jesberg, and was active in solicit-
ing other employees. His relatively active role on behalf of the Union appears to
have been known to management as appears from questioning directed at him by
his foreman , Gerd Wilken.
SMECO INDUSTRIES, INC. 1253
Although Zielinski, as a welder, was apparently primarily responsible to Wilken,
the welding foreman, he had for some substantial period of time prior to January
1964 worked virtually full time on the relatively light work of the ESB (Electric
Storage Battery) department under DeGroot, the latter's status as a supervisor being
in issue in the instant proceeding. The production policies of Smeco call for con-
siderable flexibility, however, and it would normally be expected that a welder such
as Zielinski could be transferred and in fact he frequently was transferred to other
jobs. When he was transferred at Wilken's order on January 21, 1964, to the rela-
tively heavy work involved in welding shrouds for the Danly customer, he accepted
the assignment without protest and worked on it until his transfer back to the ESB
department on March 24, 1964.
Although at the time of his transfer it appears that he could have been spared from
ESB, a few days thereafter DeGroot had need for him and asked Wilken for the
return of Zielinski. Wilken, however, sent other welders to the ESB department,
Martin and Krupa who had previously had little experience in the ESB department.
On the conclusion of the Danly job which was the welding of 49 shrouds and a
5-week job he was instructed by Wilken to return to his regular job with the statement
that the "sick" days had passed.
With respect to the Zielinski's transfer to the Danly shroud welding job there is
considerable dispute in the evidence as to whether or not the Danly job was relatively
undesirable work. The evidence leaves me firmly convinced that it was a relatively
undesirable job assignment as contrasted to the relatively lighter work done in the
ESB department. The Danly job involved regular hoisting by a chain hoist of heavy
pieces of material. Although the shrouds were hoisted by a 2-ton hoist it appears
that the hoisting device involved the use of a ratchet and pawl arrangement which
could involve considerable strain on the hands and arms. Zielinski, a relatively slight
man, testified and I credit his testimony that during the period of the Danly job his
work caused him to have pains in his hands with resulting loss of sleep. I conclude
and find that the transfer involved substantially less desirable and more difficult work.
With respect to whether the transfer was discriminatorily motivated, I believe the
evidence preponderates in favor of the conclusion that it was. Zielinski was a known
union leader and there is no doubt of Respondent's opposition to organizational
activities on behalf of the Union. In reaching the conclusion that the transfer of
Zielinski was discriminatorily motivated I rely principally on the fact that Zielinski,
a slight man, was taken out for this heavy work from the department where he had
habitually worked at a time when there was work for him to do in his regular depart-
ment and in fact he was replaced in his former department by two other employees
with relatively little experience in the ESB department. I also rely heavily on Zielin-
ski's testimony, which I credit, that at the conclusion of the Danly job when he was
sent back to his "own work" in the ESB department it was explained to him by Wilken
that "sick" day had passed. I infer this had reference to the period of the height of
the organizational campaign; no other explanation is reasonable on this record.
D. The refusal to bargain
As noted above Jesberg, on behalf of the Union, wrote Smeco under date of Janu-
ary 9, asserting a claim to a majority of production and maintenance employees and
requesting recognition. The letter offered to resolve any doubt as to majority repre-
sentation by a card check before a neutral, mutually agreeable, third party and
referred to the existing satisfactory relationship between the parties covering the field
construction employees. Before any reply was received, the Union filed a petition
on January 13 and in support of the petition turned over to the Board's Regional
Office, 52 signed authorization cards whose validity is hereinafter considered. The
issues as to this aspect of the case require the determination as to the appropriate
unit, the majority status of the Union in that unit, and the lawfulness of Respondent's
admitted refusal to bargain.
The complaint alleged and Respondent's answer denied the appropriateness of a
unit consisting of all production and maintenance employees, exclusive of office and
clerical employees, guards, professional employees, outside truckdrivers, supervisors,
and field construction employees while employed in the field. Respondent's position
is that the single outside truckdriver (Globke) and the field construction employees
should be excluded at all times. There is also a dispute between the parties as to the
supervisory status of certain specific individuals. It can be seen that there essentially
is no dispute as to the appropriateness of the production and maintenance unit, the
only issue being as to the inclusion therein of the truckdriver, Globke, field construc-
tion employees, and six department heads: DeGroot, Ellevan, Matura, James Mur-
phy, Marecek, and Masino.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's Exhibit No. 7 is agreed to be an accurate list of hourly paid,
nonsupervisory production and maintenance employees of Smeco as of January 10,
1964. It includes 62 names. Of the 62 names on the hourly paid nonsupervisory
production and maintenance employees as of January 10, union authorization cards
were received in evidence as duly authenticated by the signers from 41. Since 41
cards would be a majority of any conceivably appropriate unit I find the cards
in evidence and turned over to the Regional Office of the Board in support of the
Union's petition on January 13, conclusive evidence of the Union's majority at the
time of its demand for recognition.
The issue remains, however, as to the inclusion or exclusion of alleged supervisors
and the other fringe groups There also remains for consideration the Respondent's
contention that the majority was tainted in nature by representations made during
the organizing campaign to the effect that the Union already had a majority, or that
delay in signing would result in increased cost to employees by virtue of increased
initiation fees at a later date.
With respect to the question of organizational misrepresentation it does appear that
a number of the signatory employees were of somewhat limited understanding and
some suffered the additional handicap of poor comprehension of the English lan-
guage I credit Jesberg's testimony that he himself never informed employees that
it would be costly to sign at a later date as distinguished from immediate signing.
While a few employees testified to a loose understanding that an $80 initiation fee
might be involved there is considerable uncertainty as to the source of this report
and the record indicates that it was loose talk among employees and not attributable
to any action on the part of union officials or the four-man soliciting committee work-
ing on behalf of the Union. The employees were to some extent handicapped by
limited comprehension of English and by rumors among themselves of uncertain
origin. The evidence clearly preponderates however, in favor of the conclusion that
they knew in signing a card that they were selecting the Boilermakers to represent
them and there is no indication that they were improperly induced to sign the cards.
Turning to the question as to the inclusion or exclusion of department heads it
appears that there are six department heads whose status is disputed. They are
DeGroot, Ellevan, Matura, James Murphy, George Marecek, and Frank Masino.
According to the testimony of Gabriel there is considerable flexibility in the manage-
ment of the Company and this has to some extent made formalization of the table
of organization not practicable. Some years ago there was posted under Gabriel's
signature a chain of command indicating the reporting lines of various department
heads either to Vavrosky or to Balicek. The chart states that the department heads
are responsible for the men in their crew. The list of department leaders includes
DeGroot, Joseph Murphy, James Murphy, and Ellevan. Gerd Wilken, admittedly of
supervisory status, appears on the chart as having a status comparable to that of the
others in dispute. While there is evidence that all these men spend a substantial
amount of their time in production work the evidence also indicates that they all are
authorized to make effective recommendations concerning employee status. There
is little doubt but what their employment conditions and aspirations are far from
being aligned with those of the production and maintenance unit. I find that they
are supervisory and should be excluded from the unit appropriate for representation
by the Union.
With respect to the field erection employees, the evidence indicates that they are
represented by the Boilermakers or the Iron Workers union and are assigned through
their union referral systems. While they appear to have worked in the shop regu-
larly in the past, this practice is diminishing. None of them are included on the list
of agreed-on production and maintenance employees. I agree with Respondent that
they should be excluded from the production and maintenance unit here agreed on
as appropriate.
With respect to the truckdriver, Globke, it appears that he is represented by the
Chicago Truck Driver (Independent) Union and that that agreement establishes his
rate for work both on the road and in the plant. His time is occupied to a substantial
extent by driving and loading and like assignments related to hauling; he does work
some in the plant but his work appears to be casual and haphazard rather than regu-
larly scheduled. He appears to have little in common with the production and main-
tenance group other than his membership in, and activity on behalf of, the Union.
I agree with Respondent that he should be excluded from the production and main-
tenance unit.
There remains for consideration the question as to whether Respondent entertained
a good-faith doubt as to the Union's claim of majority and whether it withheld recog-
nition pursuant to such good-faith doubt. In this regard account must be given to
the matter of the taking of the straw ballot poll in the plant on January 14. While
SMECO INDUSTRIES, INC. 1255
I have found that the Company did not engage in any unfair labor practice by the
taking of this poll for reasons set forth above, it plainly appears and I further find
that in view of the outcome of the balloting Smeco could by no means rely upon it
as any indication or guide for its course of action in determining the validity of the
Union's claim to a majority. The large number of unmarked or otherwise inconclu-
sive ballots would preclude any good-faith reliance on the outcome of the poll.
Furthermore, as detailed above, there must be taken into account the several acts
of interference with employee rights which I find Smeco to have engaged in. I find
and conclude that since the Union did have a clear majority of production and main-
tenance employees at the time it asserted its demand for recognition and since
Respondent's refusal cannot be said to be based upon a genuinely entertained good-
faith doubt as to this majority, I find that its refusal to recognize the Union was an
unfair labor practice within the scope of Section 8(a) (5).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, and there found to
constitute unfair labor practices, occurring in connection with the operations of
Respondent described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
In view of the findings detailed above that Respondent has engaged in unfair
labor practices defined in Section 8(a)(1), (3), and (5) of the Act, it will be rec-
ommended that Respondent be required to cease and desist therefrom and take cer-
tain affirmative action as appears necessary and appropriate to effectuate the policies
of the Act. The affirmative action apparently necessary to effectuate the purposes
and policies of the Act should include a requirement that Respondent bargain col-
lectively in good faith with the Union and reinstate employee James Heilman, whom
I find to have been discriminatorily terminated, making him whole for loss of earn-
ings in accordance with the principles established in F. W. Woolworth Co., 90 NLRB
289 and Isis Plumbing & Heating Co., 138 NLRB 716. I shall recommend the post-
ing of appropriate notices.
Upon the basis of the foregoing findings of fact and conclusions and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees of Respondent employed at its
plant at 4800 South Hoyne Avenue, Chicago, Illinois, exclusive of office and clerical
employees, guards, professional employees, truckdrivers, field construction employ-
ees, and supervisors as defined in the Act, constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the Act.
4. At all times from and after January 10, 1964, the Union has been, and now is,
the exclusive representative of all employees in the above-named appropriate unit
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing to recognize and bargain with the Union at all times from and
after January 10, 1964, Respondent has engaged in and is engaging in unfair labor
practices within the purview of Section 8(a)(5) and (1) of the Act.
6. By discharging employee James Heilman and by transferring employee Joseph
Zielinski to more arduous employment in reprisal for their activities on behalf of
the Union,' Respondent engaged in unfair labor practices within the purview of Sec-
tion 8 (a) (3) of the Act.
7. By interrogating employees concerning their union activities and the union
activities of their fellow employees, by threatening reprisal in the nature of moving
of the plant or reducing the work force, by engaging in surveillance of union activi-
ties, and by instituting changes in wages and hours for the purpose of influencing
employees' desires concerning union representation, Respondent has engaged in
unfair labor practices defined in Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case and pursuant to Section 10(c) of the Act I recommend
that Respondent, Smeco Industries Inc., its officers, agents, successors, and assigns
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, as the
exclusive representative of employees in the unit appropriate for purposes of collec-
tive bargaining; viz, all production and maintenance employees at Respondent's
plant exclusive of office and clerical employees, guards, professional employees, out-
side truckdrivers, field construction employees, and supervisors as defined in the Act.
(b) Discouraging membership in the Union or any other labor organization of
its employees by discharging or otherwise discriminating against employees on the
basis of their union membership or activity.
(c) Interrogating employees concerning their union membership or activities or
the union membership or activities of other employees, engaging in surveillance of
employees while engaged in union activity away from company premises, changing
wages and hours for the purpose of influencing employees to reject union represen-
tation, threatening employees with shutdown of the plant or other reprisals in the
event the Union is selected as their bargaining representative or in any other manner
interfering with, restraining, or coercing employees in the exercise of their right to
self-organization to bargain collectively through representatives of their own choos-
ing or engage in other concerted activity for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any or all such activity.
2. Take the following affirmative action which appears necessary and appropriate
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of employees in the unit described above with respect to rates of
pay, wages, hours and other terms and conditions of employment, and embody any
agreement reached as a result of such bargaining in a written signed memorandum of
understanding.
(b) Offer James Heilman immediate and full reinstatement to his former or a
substantially equivalent position without prejudice to his seniority or other rights
and privileges and make him whole for any loss he may have suffered by reason of
the discrimination against him in the manner set forth in the section above entitled
"The Remedy," notifying him if serving in the Armed Forces of his rights under the
law applicable to such service.
(c) Preserve and, upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
backpay due under the terms of these recommendations.
(d) Post in its plant copies of the attached notice marked "Appendix." 3 Copies
of said notice to be furnished by the Regional Director Region 13 shall, after being
duly signed by Respondent's representative, be posted by Respondent immediately
upon receipt thereof and maintained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director Region 13, in writing, within 20 days from the
date of receipt of this Decision, what steps it has taken to comply herewith? It is
recommended that, except as to the unfair labor practices found herein to have been
engaged in, the allegations of the complaint be dismissed.
S 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 United States Court of Appeals, the words "a Decree of the United States Court
of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order "
' In the event that this Recommended Order is adopted by the Board this provision shall
be modified to read: "Notify the Regional Director for Region 13 in writing, within 10 days
from the date of the receipt of this Order , what steps the Respondent has taken to comply
herewith."
DIXIE GAS, INC . 1257
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 you that:
WE WILL NOT question employees concerning their union sympathies or the
sympathies of fellow employees nor will we threaten employees with closing of
the plant or reduction of the work force in the event the Boilermakers becomes
recognized as the representative of employees.
WE WILL NOT engage in surveillance of union activities nor will we change
wages and hours to influence employees in their decision to assist or refrain
from assisting union.
WE WILL upon request , bargain collectively in good faith with the Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths , Forgers
and Helpers , AFL-CIO, as a representative of all employees in the bargaining
unit set forth below with respect to rates of pay, wages , hours and terms or
conditions of employment , and, if agreement is reached , we will embody it in a
written signed contract.
The bargaining unit is
All production and maintenance employees of Smeco Industries, Inc.,
employed at its plant at 4800 South Hoyne Avenue exclusive of office and
clerical employees , guards, professional employees , outside truckdrivers,
field construction employees , and supervisors defined in the Act.
WE WILL offer James Heilman immediate and full reinstatement to his former
or an equivalent job without prejudice to his seniority and other rights and
make him whole for loss of pay suffered as a result of our discrimination against
him.
All our employees are free to become , or remain , members of the above-named
labor organization or any other labor organization.
SMECO INDUSTRIES, INC.,
Employer.
Dated------------------- By---------------------- ---------------------
(Representative ) ( Title)
NoTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 881 U. S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago , Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Dixie Gas , Inc. and General Drivers, Salesmen and Warehouse-
men's Local Union No. 984, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America . Case No. 26-CA-1746. March 29, 1965
DECISION AND ORDER
On October 30, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices in violation of Section 8(a) (5) and (1) of the National Labor
151 NLRB No. 126.