Wagner-Wood Co.

National Labor Relations Board - Board Decisions

Sep 11, 1964

148 N.L.R.B. 963 (N.L.R.B. 1964)

WAGNER-WOOD COMPANY 963
Wagner-Wood Company and Robert , Hays. Case No. 9-CA-3061.
September 11, 1964
DECISION AND ORDER
On May 14, 1964, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices, and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Decision. The Trial Examiner also found
that the Respondent had not engaged in other unfair labor practices.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a brief. The Respondent filed no exceptions to the
Decision of the Trial Examiner,' but filed a brief in support of the
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has, delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Leedom 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 Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts the Order recommended by the
Trial Examiner and orders that Respondent, Wagner-Wood Com-
pany, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 163, 73 Stat. 519), was heard before Trial Examiner
George A . Downing in Dayton , Ohio , on March 30 and 31 , 1963 , pursuant to due
notice. The complaint , issued on February 26 , 1964, by the General Counsel of the
National Labor Relations Board on a charge dated January 2, 1964, alleged in sub-
stance that Respondent , Wagner-Wood Company, engaged in unfair labor practices
proscribed by Section 8(a)(1) and (3) of the Act by various acts of interference,
restraint , and coercion in September and December 1963 , and by discriminatorily
discharging five employees (John Newberry, Robert Hays , Clarence Griffin , Gilbert
Spencer, and Ralph Dobson ) because of their union activities and sympathies.
Respondent was not represented by counsel but by its president , A. N. Wagner,
who filed an answer in the form of a letter to the Regional Director .' By that answer
I A brief was received , however , from the firm of Harshman , Young, Colvin & Alexander,
of Dayton, Ohio.
148 NLRB No. 100.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent denied the supervisory status of Theodore Smart and Shiloh Helton„
through whom Respondent allegedly engaged in a number of the Section 8(a)(1)
violations , and it denied or sought to explain the remaining matters with which it
was charged , including the alleged discrimination . The issues as so framed and'
tried present only factual questions going to whether Respondent engaged in or was
responsible for the conduct with which it was charged.
Upon the entire record in the case and from my observation of the witnesses, I-
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
'Respondent , an Ohio corporation with its principal place of business at Dayton,
Ohio, operates a lumberyard and a retail outlet for building materials. During the-
year prior to the issuance of the complaint, Respondent had a direct inflow in inter-
state commerce of goods valued in excess of $50,000, received directly from extra--
state points, and during the same period its gross sales exceeded $500,000 . Respond-
ent is therefore engaged in commerce within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local Union No.
957, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and'
Helpers of America (herein called the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent's business is divided. into three departments, i.e., sales and office
(clerical) force; mill or fabrication (also called truss and manufacturing); and de-
livery, which includes also unloading, shipping, and warehouse. Respondent's officers,
A. N. Wagner, president, H. K. Smart, vice president, and Edwin R. Strauss, secre-
tary-treasurer, are actively engaged in the management of the business, with Wagner
acting as general manager and with Smart running the mill operations.
Excluding some 14 salesmen, office employees, and clerks (not involved herein),
Respondent employs a varying number of employees in the mill and delivery depart-
ments, according to whether peak or slack periods are occurring, and layoffs are of
common occurrence. At peak periods there are as many as 10 or 11 employees in the
mill and 14 or 15 in delivery. In slack periods (as at the time of the hearing) there
may be as few as five in the mill and seven in delivery. The mill employees are under
the direct supervision of Mill Superintendent Leonard Landis, under whom there is
also a working job foreman, Shiloh Helton. The delivery department is in charge of
Yard Foreman Theodore (Ted) Smart, who is a brother of the vice president.
The Union had been the bargaining representative of the employees for some 3
years in a unit covering the mill and delivery employees. A 1-year contract expired
in October 1962, but there was a verbal agreement to continue under its terms until
such time as a new contract, was negotiated. Respondent filed an RM petition (Case
No. 9-RM-328) in November 1963, an election was held on December 17, under a
consent-election agreement, and on December 26, 1963, the Board certified the Union,
as the bargaining representative of the employees in the unit.
B. The issue on supervisors
Shiloh Helton and Ted Smart are working foremen in their respective departments,
spending a substantial amount' of their time working with the other employees whose
work they also direct to a certain extent. Neither can hire, fire, or discipline, but
each -has limited authority in making assignments and each can make layoffs for
brief periods after first consulting H. K. Smart. Neither participates in management
or policy meetings and .neither is permitted to receive grievances from complaining
employees at step 1 of the grievance procedure under the (expired) contract, which
provided for submission to -the "immediate superior." 2 The General Counsel
z However, H. K. Smart testified that such submissions were made to Helton and Ted
Smart when the contract _was first entered Into, but that Respondent shortly Issued' -a
memorandum requiring submission to H K Smart instead because the existing practice
resulted in wasting too much of the foremen's time I
WAGNER-WOOD _ COMPANY 965
stipulated that the prior contract covered working foremen and provided that they
were eligible to vote in elections. Also, by agreement of the parties, Helton and Ted
Smart were permitted to vote in the December election ( as they had in previous elec-
tions ), but the Regional Director made no finding whether they were or were not in
.the unit. Cf. Montgomery Ward & Company, Incorporated, 115 NLRB 645, 646.
Though in the foregoing respects the situations of the two foremen were similar,
their status differed in other significant aspects. First, it is to be noted that Ted
Smart is in direct charge of the delivery department, whereas fabrication (with
-fewer employees) is under Mill Superintendent Leonard Landis, and Helton is in
-effect a subforeman under him. Helton punches a timeclock, but Smart does not.
Smart has an office (the shipping office) in which he performs some of his duties;
Helton has none. Smart is paid a flat salary of $150 a week, but Helton is paid by
the hour ($2.38), though he also receives a bonus which usually makes his total
wages approximately equal to Smart's salary. Finally, there is the circumstance of
the close family relationship between Ted Smart and Vice President H. K. Smart,
and there is the testimony of the latter which contains implicit recognition of Ted's
status as a representative of management. Thus, H. K. Smart testified that before
he left the plant in December to go into the hospital, he passed on to Strauss and to
Ted Smart information concerning Ralph Dobson's desire not to be called back
(after his layoff) to work 2 days a week. Smart explained that he reported the
information to Ted because Ted was his brother and "I tell him everything that I
think is pertinent to our operation."
The foregoing circumstances warrant the conclusion, and I find, that the em-
ployees also regarded Ted Smart as allied with and as a representative of manage-
ment, not as one of themselves, and regarded his threats-so shortly to be fulfilled
in their eyes (see sections C and D, infra)-as the representations of management,
not those of a fellow employee.
I therefore conclude and find that Ted Smart was a supervisor within the meaning
of Section 2(11) of the Act, and that Respondent is chargeable with his conduct
as found in section C, infra. Montgomery Ward & Company, supra; Hy Plains
Dressed Beef, Inc., 146 NLRB 1253.
I find, on the other hand, that Helton did not occupy a supervisory position. Of
particular significance was the fact that Smart's position in, delivery was roughly
analogous to Landis' in the mill, where fewer employees worked and where Helton's
position was in effect that of a subforeman. And to the extent that the evidence
shows that Helton made assignments or otherwise directed the work of employees,
I conclude and find that his exercise of such authority was of a routine nature and
did not require the use of independent judgment. Furthermore, even were supervi-
sory status assumed, there was no evidence, as there was in Smart's case, which
would justify the conclusion that, despite Helton's inclusion in the voting unit by
agreement of the parties, the employees would nevertheless believe him to be acting
for and on behalf of management: Ibid.
C. Interference , restraint, and coercion
There was no denial of the testimony of the General Counsel's witnesses that Ted
Smart:
1. Interrogated Clarence Griffin and Ralph Dobson, Jr., concerning their voting
intentions in the election and that he exhibited to Robert Norman a checklist of em-
ployees on which he had made a mark indicating how the employees would vote.
2 Informed Norman that if the Union should win the election the Company would
"lay down the law" (among the employees) and would get another election within
6 months which it would be sure to win; and informed Robert Hays that the Union
would never get another contract and would go out (of the plant).
3. Threatened Griffin and Dobson after the-election that because the employees
had voted wrong, the Company was going to hire Manpower, Incorporated (an
independent contractor) to do the work and that the employees would be out of
work. When Dobson suggested that his own seniority would protect him, Smart
replied that Dobson could not rely on that because the Company would keep only
five employees, all of whom had more seniority than Dobson.
There was also no denial by H. K. Smart of the testimony of Robert. Hays, the
union steward , that in September 1963, at a time when negotiations for a new contract
were underway , Smart asked him what he thought about starting an independent
union and stated that such unions had "worked real well" in other plants and he did
not see why one would not work out at Wagner's. Hays admitted that the employees
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were having difficulties at the time with the Teamsters' Union because of some
difficulty within that organization .3
I conclude and find, on the foregoing evidence, that Respondent, through Ted
Smart, interrogated employees concerning their voting intensions in the election
(Clark Printing Co., Inc., 146 NLRB 121) and indicated on a checklist the em-
ployees' preference; threatened that if the Union won the election, it would never
get another contract; and threatened that Respondent would, subcontract work and
would discharge employees because the Union had won the election. I further
conclude and find that Respondent, through H. K. Smart, solicited employees to form
an independent union. Such solicitation during the pendency of contract negotia-
tions was plainly a calculated attempt to subvert the Union's statutory authority,
conferred by Section 9(a), to serve as the exclusive bargaining representative of the
employees and to invade the employees' right, guaranteed by Section 7, to bargain
through the representative whom they had chosen. By all of the foregoing conduct,
Respondent interfered with, restrained, and coerced employees within the meaning
of Section 8 (a)( I) of the Act.
The complaint also charged as violative of Section 8(a)(1) a unilateral change
of seniority rights on or about December 18, without prior notice to• or consultation
with the Union. The General Counsel's case was based entirely on Hays' testimony
that after his layoff he complained to H. K. Smart on December 24 that Richard
Simpson had been retained over him though Simpson's seniority was less than his,
and that Smart informed him that the corporate officers had agreed to date Simpson's
seniority back (following an absence). Hays' testimony did not indicate when Re-
spondent had acted in the matter and neither did Smart's, though under the latter an
inference can be drawn that the restoration occurred long before the incidents charged
in the complaint. Thus, Smart testified that Simpson's seniority, dating from some-
time in 1962, was increased by more than 2 or 3 years following Simpson's return
from service in the Korean war. As it was incumbent upon the General Counsel
to establish that Respondent's, action occurred within the Section 10(b) period, and
as the date cannot be fixed within that period under the evidence on either side, I
can make no finding that Respondent's conduct constituted an unfair labor practice.
Finally, the complaint charged also as violative of Section 8(a)(1) the unilateral
subcontracting of certain work on or about December 23. Briefly, the evidence
showed that after Dobson was laid off on December 23, Respondent used the services
of Manpower, Incorporated, an independent contractor, in unloading a total of
some 11• carloads of lumber between December 24 and the time of Dobson's recall
on March 10. The Union was not notified or consulted.
Respondent's evidence showed, however, that it had used Manpower's services
from time to time in delivering and unloading for more than 2 years, without ob-
jection from the Union; that following the layoff Manpower was used only for the
unloading of the 11 cars; that Dobson was the only unloader on the payroll at the
time of the layoff and was the only employee whose job was affected; and that Dobson
informed H. K. Smart at the time of the layoff that he did not wish to be recalled
for a couple of days' work in a week .4
In view of the Union's longstanding acquiescence in Respondent's practice of using
periodically the services of Manpower (not refuted by the General Counsel), I do
not find that its limited use of those services during the layoff constituted a violation
of the Act.
D. Discrimination
The General Counsel's evidence showed that following the election on Decem-
ber 17, Respondent laid off John Newberry, a mill employee, on December 18;
Robert Hays and Clarence Griffin, truckdrivers, on December 20; and Ralph Dobson,
the only unloader, on December 23. Though the General Counsel offered no
evidence concerning Gilbert Spencer, the fifth alleged discriminatee, Respondent's
evidence showed that he also was laid off on December 19. Hays and Dobson•testi-
4ied that, H. K. Smart informed them the layoff was because of lack of work. New-
berry testified that he had senior ity over all but one employee in the mill department.
On 'December 24 Hays raised with H. K..Smart an issue concerning his seniority
vis-a-vis, Ralph Simpson. See section C, supra.
Respondent's answer purported to quote from a statement made by Smart in which
be admitted suggesting to Hays that it might be advantageous to the men to form an
independent union since it was impossible to arrive at a contract with the Teamsters'
Local and since some of the men had expressed to him their dissatisfaction with the Local.
* Dobson admitted making that statement and testified that he could unload a car of
lumber in from 10 to 12 hours, or in a day to a day and a half. As Dobson's layoff lasted
some 11 weeks, the receipt of cars during that period averaged one a week.
WAGNER-WOOD COMPANY 967
For proof of discriminatory-'motivation, the General Counsel's case rests mainly
on the conduct found in the preceding section and on background evidence supplied
by Dobson's testimony that on the morning of a prior election in 1961, H. K. Smart
informed him and other employees that if they voted right it was going to be all
right, and that after the election was over Smart returned and told them that they
had not voted right and "so you are laid off "
By way of defense, Respondent offered the testimony of H. K. Smart and the annual
report of its auditors. That report, which covered the fiscal year ending August 31
and which Respondent received between November 6 and 12, showed a loss on the
year's operations which, Smart testified, was the heaviest the Company had ever
suffered. - Smart testified further that the mill department is a job-shop operation,
building only to order; that he and Wagner decided to build one house ahead for
one of its customers despite the lack of an order; 5 and that as of December 19,
when the layoffs were begun, Respondent had no new orders and all other orders
were substantially completed.
Smart's testimony also showed that the layoff was much broader than indicated by
the General Counsel's evidence. He testified that the layoff included all the em-
ployees in the fabrication department at the time, and he offered a transcript from
Respondent's records which showed a total of 10 layoffs, beginning with Newberry
at noon on the 18th, and ending with Dobson at 5 p.m. on December 23.
Smart testified further that Dobson was the only unloader on the payroll at the
time of the layoff (his assistant having been laid off at an earlier time), and that
Dobson stated that he did not wish to be recalled to work for only 1 or 2 days a week
(his predictable workload in view of the lack of orders). It was that word which-
Smart passed on to Strauss and to Ted Smart before leaving for the hospital on
December 24 and which accounted for the subsequent use of Manpower's services
in unloading the cars occasionally received from them until Dobson's recall on
March 10.
Respondent's records showed that all of the alleged discriminatees except New-
berry were recalled at various times beginning on January 22, including three of
the seven employees who were laid off in the mill department. Newbery and three
other mill department employees have not been recalled, though Spencer, an alleged
discriminatee, has.
In refutation of claimed discrimination resulting from the restoration of se-
niority, Smart testified that in 1961, Respondent restored to Spencer, seniority going
back to 1958, and that so far as Simpson's restoration was concerned, Respondent
assumed or believed Simpson also to be a union member because he acted as the
observer for the trade union in the first election.
Concluding Findings
Considering first the evidence which made up the General Counsel's case, it is.
found that a prima facie case was established that the layoffs were discriminatorily
motivated as alleged in the complaint. Indeed; Respondent's action following hard
on the heels of the election would seem no more than direct implementation of
Ted Smart's threats, after the election results were known, that Respondent would
subcontract certain work and discharge employees. So to retaliate against the em-
ployees because they had again chosen the Union as their bargaining representative
would be patently coercive of Section 7 rights, as well as inhibitive of membership,
in or adherence to the Union. For that reason it was not material whether the
record showed the union membership or sympathies of the particular employees.
selected for layoff or whether it, showed Respondent's knowledge of such facts.
Wagner Iron Works, 104 NLRB 445, 448; Arnoldware, Inc., 129 NLRB 228, 229
'Ellis and Watts Products,- Inc., 130 NLRB 1216, 1-220,, enfd. 297 F 2d '576
(C.A. 6); N.L.R.B. v. Piezo Manufacturing Corporation, 290 F. 2d 455 (C.A. 2),.
We turn then to the question whether Respondent's' evidence is sufficient to over-
come the General Counsel's case and the conclusion warranted by it, 'if unrebutted,
that Respondent's conduct was violative of Section 8(a)(1) and (3) of the Act.
Respondent's evidence plainly established that, there were sound economic rea-
sons for making the layoff. But to prove that justifiable ground existed. does not
prove that Respondent in fact' acted- because' of it; for it is no defense if that was
a pretext and not the moving cause. N.L.R.B. v. Solo. Cup Company, 237 F. 2d'
521,_525 (C.A. 8); Sunshine Biscuits,'Inc. v. N.L.R.B., 274 F. 2d 738, 742 (C.A. 7).
5Though Respondent's brief argues that Respondent refrained`from making an earlier
layoff to avoid a charge of interference with the election, no specific testimony was ad-
duced to that effect.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If Respondent's real purpose in acting when it did was to retaliate because of the
election results, the fact that economic considerations may have warranted a layoff
will not avail it as a defense
In approaching the present question, it is to be noted preliminarily that Respondent's
evidence as to the breadth of the layoff exposed an inherent defect in General Coun-
sel's case. First, although the General Counsel's evidence standing alone would
support a finding of unlawful motivation as to all of the employees involved in the
layoff (see Wagner Iron Works and following cases, cited supra), he advanced no
explication by argument or brief of his theory or his contentions and no explanation
as to why his complaint was limited to only half of the employees who were laid off.
Yet, as completed by Respondent's evidence, the record is not such that it can be
found that Respondent discriminated, as between the employees laid off and those
retained, on some basis which was related either to their union membership or
activities or sympathies, or to their voting in the election. Any inference of dis-
crimination which might have emanated from the restoration of Simpson's
seniority was wholly dissipated by Smart's unrefuted testimony concerning Spencer
and Simpson. Or even if it were concluded that Respondent engaged in some form
of discrimination as between Simpson and Hays, it cannot be found that such form
was related to any matter concerning the union membership or activities of either.
Indeed, all that the record shows is that the only sense in which Respondent discrimi-
nated (i.e., treated employees differently) was in choosing to retain some employees
over others; it does not indicate the basis on which the choices were made and it
wholly fails to establish that the choices were based on or connected with known or
assumed union sympathies or activities.
Finally, and without regard to the foregoing, it is to be noted that in the ultimate
analysis it is only Ted Smarts threats which furnish' ,any basis for inferring that
Respondent's action was discriminatorily motivated. Though Respondent is to be
held responsible for the fact of Smart's utterances and for remedying their coercive
effect upon the employees, the evidence does not establish that Ted Smart participated
in any manner in the management councils which considered Respondent's financial
situation and in which the layoff was decided upon or that he had any connection
whatsoever with the layoff or with the selection of the employees. Indeed, the record
shows to the contrary that Ted Smart was without authority to discharge (as was
Landis) and that he did not participate in management or policy meetings. Threats
made by such a supervisor, shown to have no connection with a discharge or layoff,
cannot overcome unrefuted testimony of witnesses who made and who carried out
the decision and who testified as to its basis.
When, therefore, the entire record is considered, I conclude and find that the
General Counsel did not establish by a preponderance of the evidence that Respond-
ent engaged in discrimination by laying off the employees named in the complaint
or that, by the layoff, it otherwise engaged in an unfair labor practice.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action which is conventionally ordered in such cases, as provided in the Recommended
Order below, which I find necessary to remedy and to remove the effects of the
unfair labor practices and to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
'case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices
-proscribed by Section 8(a)( I) of the Act.
2. Said unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
3. Respondent did not engage in unfair labor practices by laying off the employees
named in the complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby recommend that Wagner-Wood
Company, a corporation , its officers, agents, successors , and assigns, shall:
WAGNER-WOOD COMPANY 969.
1. Cease and desist from:
(a) Interrogating employees concerning their voting intentions in any Board-
conducted election and exhibiting to them any list purporting to indicate chow em-
ployees will vote.
(b) Threatening to subcontract work and to'discharge employees and threatening
that the Union will not get a contract if it wins an election.
(c) Soliciting employee 's, at a-time when they are represented by a union of their
choice, to form an independent union to act as their collective -bargaining
representative.
(d) In' any like or similar manner 'interfering with , restraining , or coercing their
employees in the exercise of their right to self-organization , to form , join or assist
Local Union No.-957, or any other labor organization , to bargain collectively through
representatives of- their own choosing , or to engage in other concerted activities for,
the purpose of collective bargaining or other mutual aid or protection; or to refrain
from any or all such activities except to the extent that such right may be affected
by an agreement requiring membership in, a labor organization as ' a condition ' of
employment as authorized in Section 8(a) (3) of the Act. -
2. Take the following affirmative action:-
(a) Post in its offices, yard , and warehouse at Dayton , Ohio, copies of the attached
notice marked "Appendix A." 6 Copies of said notice, to be furnished by the
Regional Director for Region 9, shall , after being signed by Respondent 's representa-
tive, be posted by Respondent immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered , defaced , or covered by any
other material.
(b) Notify the Regional Director for Region ' 9, in writing , within 20 days from
the date of the receipt of this Decision , what steps Respondent has taken to comply
herewith 7
6In 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 words "a Decree of the United
States Court of Appeals , Enforcing an Ordei " shall be substituted for the words "a
Decision and Order"
fl In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read, "Notify said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
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 polices of the National Labor Rela-
tions Act, I hereby notify you that:
WE WILL NOT interrogate employees concerning their voting intentions in any
Board-conducted election or exhibit to them any list purporting to, indicate how
employees will vote.
WE WILL NOT threaten to subcontract work or to discharge employees or
threaten that the Union will not get a contract if it wins a Board -conducted
election.
WE WILL NOT solicit employees , at a time when they are represented by a
union of their choice, to form an independent union to act as their collective-
bargaining representative. „ •
WE WILL NOT in any like or similar manner interfere with , restrain , or coerce
employees ' in the exercise of their right to self-organization , to form , join, or
assist General Truck Drivers, Chauffeurs , Warehousemen and Helpers, Local
Union No. 957, International ' Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , or any other labor organization , to bargain
collectively through representatives of their own choosing , or to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any . or all such activities , except to the extent
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act.
All our employees are free to become , remain , or to refrain from becoming or re-
maining, members of the above -named or any other labor organization.
WAGNER-WOOD COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No.
381-2200, if they have any questions concerning this notice or compliance with its
provisions.
The Baltimore Catering Company and International Union of
Electrical , Radio and Machine Workers, AFL-CIO, Petitioner.
Case No. 5-RC-4457. September 11, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation of certification upon consent election exe-
cuted and approved December 5, 1963, an election by secret ballot was
-conducted on December 19, 1963, under the direction and supervision
of the Regional Director for Region 5, among employees in the stipu-
lated unit. Upon the conclusion of the election, a tally of ballots was
furnished the parties in accordance with the Board's Rules and Regu-
lations, Series 8, as amended.
The tally of ballots showed that of approximately 121 eligible
voters, 116 cast ballots, of which 54 were for and 62 were against the
Petitioner. No ballots were challenged or void. Thereafter, on De-
cember 27, 1963, the Petitioner filed timely objections to conduct affect-
ing the outcome of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation of the objections and
thereafter issued and duly served on the parties on January 31, 1964,
a report thereon recommending to the Board that the objections be
overruled in their entirety.
On February 24, 1964, the Petitioner filed timely exceptions to the
Regional Director's report with respect to objections Nos. 1, 4, and 5
only, and requested that the election be set aside and a new election
be directed, or, in the alternative, that a hearing be held on the issues
involved.
The Board, having duly considered the Petitioner's objections, the
Regional. Director's report, the Employer's statement in support of
148 NLRB No. 101.