Ace Machine Co.

National Labor Relations Board - Board Decisions

May 20, 1980

249 N.L.R.B. 623 (N.L.R.B. 1980)

ACE MACHINE CO. 623
James F. Stanford, Inc. d/b/a Ace Machine Co. and
United Steelworkers of America, AFL-CIO-
CLC. Case 8-CA-12140
May 20, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 13, 1979, Administrative Law
Judge Morton D. Friedman issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge as modified herein and to adopt his recom-
mended Order as modified herein. 2
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also find no merit in Respondent's implied allegation of bias and
prejudice on the part of the Administrative Law Judge. Upon our full
consideration of the record and the Administrative Law Judge's Deci-
sion, we perceive no evidence that the Administrative Law Judge pre-
judged the case, made prejudicial rulings, or demonstrated a bias against
Respondent in his analysis or discussion of the evidence.
We do correct the following inadvertent errors in the Administrative
Law Judge's Decision. In sec. III,B, par. 7, of his Decision, the Adminis-
trative Law Judge stated that Wolf told Hewitt that if the latter wanted
to work only 48 hours he should seek employment at a union shop. The
record indicated that the time frame mentioned was "40 hours." In sec.
IIl,C,I, par. 1, of his Decision, the Administrative Law Judge referred to
radial presses as "radio pressers." And, in sec. IlI,C,3, par. 9, he stated
that employee Hewitt's discharge was "legally motivated" when it is
clear from the rest of his Decision that he found the discharge was ille-
gally motivated.
2 In par. 2(c) of his recommended Order and in the section of his Deci-
sion entitled " The Remedy," the Administrative Law Judge provided,
inter alia, that Respondent immediately execute the contract agreed to by
the parties on July 3, 1978. However, inasmuch as, automatic renewal
clause aside, that contract, by its terms, will have expired before the issu-
ance of this Decision, we shall require Respondent, at the Union's option,
either to sign the above contract, or to bargain in good faith for a new
agreement, and, if an understanding is reached, to embody such under-
standing in a signed agreement. In the event the Union requests Respond-
ent to sign the aforesaid contract, Respondent shall make whole all em-
ployees covered by it for the loss of benefits which would have accrued
to them had Respondent executed the contract within a reasonable time
after the same was proffered to Respondent for signature, with interest to
be computed as set forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy." We shall modify the recom-
mended Order accordingly. See Worrel N.ewspapers. Inc., 232 NLRB 402
(1977).
249 NLRB No. 73
1. The Administrative Law Judge found that the
no-solicitation rule promulgated by Respondent
after commencement of the union campaign was in-
valid, and concluded that its continued mainte-
nance constitutes a violation of Section 8(a)(1) of
the Act. We agree with this conclusion but do so
for the reasons set forth below.
On May 11, 1977, Respondent posted a notice to
its employees on its own letterhead which read as
follows:
ALL EMPLOYEES
Re: No Solicitation Policy
We are all aware of the solicitation on behalf
of union representation that has recently oc-
curred. This solicitation has seriously affected
our productivity since much of the talking and
planning took place on Company time. This
loss of production is not in the best interests of
employees or the Company. In fact we have
both been harmed by it. Consequently a "no
solicitation" rule is being added to the rules of
conduct under the first category making an
employee subject to discharge for a first of-
fense.
No outsiders will be allowed in the shop for
solicitation purposes for any reason with the
single exception of the United Fund Cam-
paign.
Your cooperation in this matter is appreciated.
J. S. WOLF
Respondent's president, Wolf, testified that Re-
spondent's no-solicitation rule is embodied in the
second paragraph of the notice which refers to
"outsiders" and was designed to prevent solicitors
from entering its premises on behalf of the Union.
Apparently, in light of this testimony, the Adminis-
trative Law Judge concluded that since Respond-
ent specifically permitted outside solicitation for
the United Fund Campaign, while prohibiting such
solicitation for the Union, Respondent thereby vio-
lated Section 8(a)(l) of the Act.
It may be that Respondent intended to restrict
the application of its no-solicitation rule to nonem-
ployee solicitors. Whatever Respondent's intention,
however, such a limitation is not clear from the
face of the no-solicitation notice read as a whole.
Also in the remedy section of his Decision, the Administrative Law
Judge recommended that Respondent be ordered to recognize and bar-
gain with the Union as the exclusive representative of its employees in
the appropriate collective-bargaining unit for a period of no less than I
year from the date on which Respondent fully complies with the other
terms of the recommended Order. However, the duration of Respond-
ent's obligation to recognize and bargain with the Union should be for a
reasonable time from the date of compliance and the recommended
Order shall be so modified.
ACE MACHINE CO. 623
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In fact, the first paragraph seems to imply that so-
licitation by employees is also restricted. This inter-
pretation is particularly apt since, after discussing
the problems occasioned by union solicitation, the
first paragraph of the notice explicitly adds the no-
solicitation rule to the offenses for which employees
are subject to discharge.
It is well settled that the reasonably foreseeable
effects of the wording of a no-solicitation rule on
the conduct of employees will determine its legal-
ity, and that where the language is ambiguous and
may be misinterpreted by the employees in such a
way as to cause them to refrain from exercising
their statutory rights, then the rule is invalid even
if interpreted lawfully by the employer in prac-
tice.3 Thus, we do not reach the question of
whether Respondent's policy as interpreted by Re-
spondent is lawful, since we find Respondent's
policy concerning employee solicitation as promul-
gated is, at best, ambiguous. And, we note further
that the risk of ambiguity must be held against the
promulgator of the rule rather than against the em-
ployees who are supposed to abide by that rule.4
Absent a showing that Respondent's no-solicitation
rule was necessary to maintain production or disci-
pline, it was presumptively invalid. 5 Accordingly,
since Respondent made no showing here that the
rule was necessary, we find its no-solicitation rule
to be in violation of Section 8(a)(l) of the Act.
2. On February 12, 1978, Respondent's president
interviewed John Hosterman for a supervisory po-
sition. In the course of the interview, Wolf in-
quired of Hosterman how the latter felt about a
union. The Administrative Law Judge found that,
since the Board has held that job applicants are
guaranteed the rights of employees under Section 7
of the Act, Wolfs interrogation of Hosterman con-
cerning the latter's opinion about a union violated
Section 8(a)(1) of the Act. We disagree.
With the amendment of Section 2(3) and (11) of
the Act and enactment of Section 14(a), Congress
specifically excluded supervisors as such from the
Act's protection. In so doing, Congress was con-
cerned, inter alia, with the employer's need to
obtain and retain loyal supervisors. 6 In light of this
concern, the Board has long held that individuals
applying for supervisory positions must be treated
as supervisors and, contrary to the Administrative
Law Judge, not as employees under the Act.7
D Solo Cup Company, 144 NLRB 1481 (1963).
Farah Manufacturing Company, Inc., 187 NLRB 601, 602 (1970).
Chrysler Corporation, Eight Mile Road Stamping Plant, 227 NLRB
1256, 1259 (1977).
6 Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 659--661
(1974).
7 See, e.g., Pacific American Shipowners Association. 98 NLRB 582
(1952): and Mapes Hotel. Inc., 230 NLRB 61 (1977). We note that nonem-
ployee applicants are distinguished from employees who are seeking pro-
Here, although Hosterman was subsequently
hired by Respondent as a rank-and-file employee,
he was not employed by Respondent at the time of
his interview with Wolf for a supervisory position.
In these circumstances, we find that Wolfs interro-
gation of Hosterman, as a potential supervisor, con-
cerning his union sentiments was not violative of
Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
James F. Stanford, Inc. d/b/a Ace Machine Co.,
Cuyahoga Falls, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order as so modified:
1. Substitute the following for paragraphs 2(c)
and (d):
"(c) Upon request, sign the written agreement
submitted by the United Steelworkers on August
16, 1978, with any inadvertent errors omitted, give
retroactive effect to its terms and conditions, and
make its employees whole for any losses, if any,
they may have suffered as a result of its refusal to
sign such an agreement, in the manner set forth in
the section of the Administrative Law Judge's De-
cision entiled 'The Remedy.'
"(d) If no such request is made, bargain collec-
tively in good faith with the Union, upon its re-
quest, as the exclusive representative of the em-
ployees in the appropriate unit, over the terms and
conditions of a collective-bargaining agreement
and, if an agreement is reached, embody it in a
signed agreement."
2. Substitute the attached notice for that of the
Administrative Law Judge.
motion to supervisory positions. See, e.g., St. Anne's Hospital, 245 NLRB
No. 130 (1979).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question any of our employ-
ees with regard to any of their other union or
protected concerted activities or the union or
protected concerted activities of other employ-
ees.
WE WILL NOT in any manner threaten our
employees with reprisals for their support of
ACE MACHINE CO 625
any union or for engaging in any protected
concerted activities.
WE WILL NOT spy on our employees or give
them the impression that we are spying upon
their meetings or other gatherings or any of
their union activities.
WE WILL NOT tell our employees that it
would be futile for them to support their
Union because we would never enter into any
agreement with their collective-bargaining rep-
resentative, United Steelworkers of America,
AFL-CIO-CLC, or any other union of their
choosing.
WE WILL NOT maintain or enforce any rule
or regulation which prevents our employees
from engaging in union activity on nonwork-
ing time nor will we discriminatorily refuse to
permit them to solicit for union or concerted
activity purposes while permitting other orga-
nizations to so solicit.
WE WILL NOT discharge or otherwise dis-
criminate against any of our employees in
regard to their tenure of employment or other
terms and conditions of employment for en-
gaging in union activities or other protected
concerted activities.
WE WILL NOT in any other manner discour-
age membership in United Steelworkers of
America, or any other labor organization, by
discharging either directly or constructively
any employee who engages in any activity in
support of said Union, or any other union, nor
will we transfer any employee from one de-
partment to another for like reason.
WE WILL NOT refuse to furnish to United
Steelworkers of America, as the bargaining
representative of our employees in the unit
hereinafter set forth, any information necessary
for the said Union to have in its possession for
the purpose of representing our employees in
the said unit as their bargaining representative.
WE WILL NOT in any other manner inter-
fere with, restrain, or coerce our employees in
the exercise of their right to form, join, or
assist or be represented by United Steelwork-
ers of America, or any local thereof, or any
other labor organization, to bargain collective-
ly through representatives of their own choos-
ing, or engage in other protected concerted
activity for the purpose of collective bargain-
ing or other mutual aid or protection, or to re-
frain from any or all such activity, except as
provided by the National Labor Relations Act.
WE WILL offer John Hosterman and Wil-
liam Hewitt immediate and full reinstatement
to their former positions or, if those positions
no longer exist, to substantially equivalent po-
sitions, without loss of seniority or other rights
and privileges and WE WILL make them whole
for any loss of earnings they may have suf-
fered by reason of our discrimination against
them, together with interest.
WE WILL transfer Bessie Belknap back to
her former position in the machine department
without any loss of seniority and WE WILL
also make her whole for any loss of earnings
she may have suffered by reason of our dis-
criminatory transfer of her to the bench de-
partment and any backpay which she may
have lost will be paid also with interest.
By reason of our failure to execute the
aforesaid agreement, WE WILL make whole
our employees in the unit represented by the
United Steelworkers, for any loss of benefits
which may have accrued to them by reason of
our failure to execute the collective-bargaining
agreement at the time it was offered to us for
signature.
WE WILL, upon request, execute and retain
in force for the period of its duration the col-
lective-bargaining agreement which we for-
merly had agreed upon and which we refused
to sign which was submitted to us by the
Union on August 16, 1978; give retroactive
effect to its terms and conditions; and make
our employees whole, with interest, for any
losses they may have suffered as a result of
our failure to sign the agreement.
If no such request to sign the agreement is
made, WE WILL, upon request, bargain collec-
tively with the Union over the terms of an
agreement and, if an agreement is reached, WE
WILL sign that agreement.
WE WILL recognize United Steelworkers of
America as the bargaining representative of
our employees in the following appropriate
unit:
All production and maintenance employees
employed at our Cuyahoga Falls, Ohio, fa-
cility, excluding all office clerical employees
and professional employees, guards and su-
pervisors as defined in the Act.
WE WILL provide the United Steelworkers
the list of names and addresses of all employ-
ees in the aforesaid unit upon the request of
the said Union.
WE WILL recognize and bargain, upon re-
quest, with United Steelworkers of America,
and any local union thereof established for the
purpose of servicing our employees in the
aforesaid unit and for the purpose of servicing
ACE MACHINE CO. 625
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforesaid agreement which we hereby
agree to execute.
All our employees are free to become or remain
or refrain from becoming or remaining members of
United Steelworkers of America, or any other
labor organization of their choosing.
JAMES F. STANFORD, INC. D/B/A
ACE MACHINE CO.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge:
This case was heard at Akron, Ohio, upon a complaint
issued on September 13, 1978, which complaint is based
upon a charge filed on July 26, 1978, by United Steel-
workers of America, AFL-CIO-CLC, herein called the
Union or the Charging Party. The complaint alleges, in
substance, that James F. Stanford, Inc., d/b/a Ace Ma-
chine Co., herein called the Respondent or the Compa-
ny, through various officials, interfered with the Re-
spondent's employees' Section 7 rights by various acts of
coercion and restraint, discriminatorily discharged and
reassigned employees for engaging in union activities,
and, additionally, by various acts, refused to bargain in
good faith with the certified representative of the Re-
spondent's employees, all of the foregoing in violation of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended, herein called the Act. In its duly
filed answer, the Respondent, while admitting the juris-
dictional allegations of the complaint, denies the commis-
sion of any unfair labor practices and, additionally, affir-
matively alleges that it was not and is not under a duty
to bargain further with the Union because the Union has
lost its majority status.
At the hearing, all parties were given full opportunity
to be heard, to present evidence, and to make oral argu-
ment. Oral argument was waived. Briefs have been
timely filed by counsel for the General Counsel and the
Respondent.
Upon consideration of the entire record in the case,
and upon my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, manufactures
precision metal products at its plant at Cuyahoga Falls,
Ohio. The Respondent annually manufactures and fur-
nishes goods of a value in excess of $50,000 to Goodyear
Tire and Rubber Company, which, in turn, annually pro-
duces and ships goods of a value in excess of $50,000 di-
rectly out of the State where such enterprise is located.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Il. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Following a Board-conducted election, the Union, on
June 22, 1977, was certified as the bargaining representa-
tive of a unit of the Respondent's production and mainte-
nance employees. Shortly thereafter, upon the request of
the Union, bargaining between the Respondent and the
Union commenced and continued through a number of
sessions until the Respondent broke off bargaining in
September 1978.' With regard thereto, the complaint al-
leges that the Respondent did not bargain in good faith
and that, in fact, a tentative agreement had been reached
but the Respondent had refused to sign the written docu-
ment encompassing the terms of the agreement. Counsel
for the General Counsel further alleges that, from the
date that bargaining began, and especially beginning in
1978, the Respondent began a campaign to cause disaf-
fection from the Union among Respondent's employees
included in the unit. According to counsel for the Gener-
al Counsel, as set forth in the complaint and in his brief,
the Respondent allegedly coercively interrogated its em-
ployees, threatened employees with reprisals, created the
impression of surveillance, told employees that it would
never sign a contract with the Union, created the impres-
sion that it would be futile for employees to engage in
union activity, and, even before the election at which the
Union was chosen as the Respondent's employees' bar-
gaining representative, established an unlawful, overly
broad no-solicitation rule. The General Counsel contends
that all of the foregoing acts were and are violative of
Section 8(a)(l) of the Act. The Respondent denies all of
the foregoing.
The Respondent admits that, as further alleged in the
complaint, it did discharge two employees who were of-
ficers of the Union and additionally transferred another
employee, also a union officer, to a less desirable job, but
contends that the two discharges were for lawful cause,
as was the transfer of the third employee. The General
Counsel contends, on the other hand, that the discharges
and the transfer were in reprisal for holding union office
and otherwise engaging in union activity, and for the
purpose of discouraging union membership. This, con-
tends the General Counsel, is violative of Section 8(a)(3)
and (1) of the Act.
The General Counsel further complains and alleges
that the Respondent, during the negotiation period fol-
lowing the Union's certification, refused to honor the
Union's request for necessary information; unlawfully re-
fused to execute a written contract which represented, in
writing, what the parties had already agreed upon; and,
finally, unlawfully withdrew recognition of the Union
and refused to deal further with it.
In defense, the Respondent contends and maintains
that it had reserved the right of ratification of any tenta-
tive agreement reached at the bargaining table to its
I Unless otherwise specified, all dates herein are in 1978.
ACE MACHINE CO. 627
board of directors and that the directors, after reviewing
the said written agreement, lawfully rejected the same.
Furthermore, the Respondent contends that its failure
and refusal to furnish the names and addresses of the Re-
spondent's employees, which the General Counsel con-
tends were necessary in order for the Union to properly
represent the Respondent's employees for which the
Union was certified, was a result of company policy not
to give out the names and addresses of its employees,
that such policy was one of long standing, and, further-
more, the Union was furnished a list of employees prior
to the election pursuant to the Board's Excelsior rule.
Finally, the Respondent argues that, by the date of its
refusal to further recognize and bargain with the Union,
the Union had lost its majority status and the Respond-
ent was under no further obligation to deal with the
Union.
Thus, upon the foregoing, the issues of the case are
framed. Additonally, the case presents subsidiary issues
of credibility and the supervisory status of certain indi-
viduals.
B. Interference, Restraint, and Coercion
The Union's organizational campaign evidently began
sometime before May 1, 1977. On May 11, 1977, the Re-
spondent posted a notice to its employees on the Re-
spondent's letterhead announcing its "no-solicitation
policy." In testifying, the Respondent's president, Jerome
S. Wolf, admitted that this policy, as originally posted, is
still in effect, or at least was in effect as of the date of
the hearing herein. The first paragraph of that notice
began with the sentence:
We are all aware of the solicitation on behalf of
union representation that has recently occurred.
This solicitation has seriously affected our produc-
tivity since much of the talking and planning took
place on company time.
The paragraph goes on to state that, in the best inter-
ests of both the employees and the Company, they were
adopting a no-solicitation rule which was to be added to
the rules of conduct of the Company making an employ-
ee subject to discharge for a first offense thereof.
The second paragraph, which Wolf admitted summa-
rizes the Respondent's present policy, reads as follows:
No outsiders will be allowed in the shop for solici-
tation purposes for any reason with the single ex-
ception of the United Fund Campaign.
The Supreme Court has held2 "An employer may val-
idly post his property against nonemployee distribution
of union literature . . . if the employer's notice or order
does not discriminate against the Union by allowing
other distribution." In the case at bar, the Respondent
admits it adopted its no-solicitation rule to keep out so-
licitors entering the premises on behalf of the Union.
Moreover, the policy affirmatively permits solicitation
for the United Fund Campaign and is still in force and
effect. Therefore, a fortiori, the Respondent is discrimi-
2N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1965).
nating against the Union by allowing other distribution.
Therefore, I find and conclude that the no-solicitation
rule in effect at all times material hereto is invalid and its
continued current maintenance constitutes a violation of
Section 8(a)(1) of the Act.
Thus, early in the Respondent's relationship with the
Union, the Respondent displayed hostility toward the
Union. After a number of bargaining sessions, as related
heretofore, the Respondent, through President Wolf, and
others, engaged in further acts which indicated the Re-
spondent's attitude toward the Union and those individ-
uals who supported the same. Thus, on Feburary 12,
1978, President Wolf interviewed prospective employee
John Hosterman for the position of supervisor in the drill
press area on the second shift. During that interview,
Wolf inquired of Hosterman how the latter felt about a
union.
The Board has long held that a job applicant is an em-
ployee guaranteed Section 7 rights under the Act. Ac-
cordingly, Wolfs interrogation at Hosterman's employ-
ment interview regarding the latter's opinion about a
union constitutes unlawful interrogation and as such is a
violation of Section 8(a)(1) of the Act. 3
Thereafter, during approximately the last week of May
1978, Wolf spoke to employee William Hewitt in Wolfs
office. No one else was present. Wolf had summoned
Hewitt into his office with regard to the latter's failure to
appear for work on several successive Saturdays. At that
time, Hewitt explained to Wolf that Hewitt was unable
to work Saturdays because of Hewitt's father's illness
which required Hewitt's presence at home on those days.
During the conversation, Wolf told Hewitt that if the
latter wanted to work only 48 hours (presumably 5 8-
hour days, Monday through Friday) Hewitt would have
to find employment at a union shop.4
In light of the fact that, during this period of time, the
Respondent was supposedly negotiating a collective-bar-
gaining agreement with the Union, this statement consti-
tuted a veiled threat that the Respondent's shop would
never become a shop with a union agreement inasmuch
as collective-bargaining agreements are generally defined
as establishing the wages, hours, and working conditions
of employees. Accordingly, I find that this statement
constitutes a violation of Section 8(a)((1) of the Act.
Another incident, similar to the foregoing, occurred in
early June 1978. At that time, present in Wolfs office
were Wolf, Henry Nagle, Hewitt's immediate supervi-
sor,5 and Hewitt. The discussion at that conference or
meeting was with regard to Hewitt's receiving a raise.
At the conclusion of the discussion, Hewitt was given a
10-cent-an-hour raise. However, as the meeting pro-
gressed, the subject of the Union was brought up by
Hewitt who had been observed by Wolf sometime before
discussing union matters with Union Representative
Richard J. Garuccio. Hewitt was concerned about get-
ting his raise because of the fact that he had been ob-
3 The above is from the uncontroverted testimony of Hosterman.
Wolf, in testifying, did not deny the interrogation. Accordingly, I credit
Hosterman in this respect.
4 From credited testimony of Hewitt. In testifying, Wolf did not deny
the words attributed to him by Hewitt.
' Nagle's status as supervisor is discussed below.
ACE MACHINE CO.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
served by Wolf. Hewitt had had a conversation with
Nagle prior to the meeting regarding the effect upon
Hewitt's employment with the Respondent because of
Hewitt's activities concerning the Union. Hewitt ex-
pressed his concern about the raise because of the Union.
Wolf then stated to Hewitt and to Nagle who was pres-
ent that, "They [the Respondent] operated there for 20
years without a union, and that they [the Respondent]
would operate there a lot longer without one."
When Hewitt rejoined that he wanted to work in a
union shop, referring to the Respondent's shop as a
union shop, Wolf told Hewitt that the latter should seek
employment in a union shop. 6
The foregoing statements of Wolf during the meeting,
directed to Hewitt, and, therefore, to the employees of
the Respondent, conveyed the idea that their choice of a
union was futile and, moreover, if Hewitt wanted to
work in a union shop, he should seek employment else-
where. This latter is tantamount to a veiled threat of re-
prisal, and, accordingly, constitutes a violation of Section
8(a)(l) of the Act.
Reference has been made, above, to Hewitt's fear of
reprisal that he would not receive his periodic raise be-
cause Wolf observed him talking to a union business rep-
resentative. Reference has also been made to the fact that
Hewitt's supervisor, Henry Nagle, was present at the
meeting above related. Because Respondent has denied
that Nagle was, at that time, a supervisor within the
meaning of the Act, it becomes necessary to make a de-
termination as to Nagle's status.
Despite the Respondent's denial that Nagle was or is a
supervisor, in testifying as to the supervisors employed in
the Respondent's facility President Wolf listed Nagle as a
supervisor in the mill area of the Respondent's facility.
Hewitt also referred to Nagle as his supervisor. At the
meeting described above at which Hewitt was given a
10-cent-per-hour raise, Nagle gave to Wolf, before the
raise was given Hewitt, an evaluation of Hewitt's per-
formance. Nagle informed Wolf that Hewitt's perform-
ance was satisfactory. In further explanation of Hewitt's
regarding Nagle as his supervisor, Hewitt stated that
Nagle was in charge of the mill area and directed him in
his work.
As will be hereinafter fully discussed, Hewitt was
eventually discharged. In testifying as to the reason for
Hewitt's discharge, Wolf admitted that Nagle has com-
plained of Hewitt's performance (this, despite the fact
that Wolf could not remember the meeting above re-
ferred to) and stated that he, Wolf, relied on Nagle's re-
lating to Wolf that Hewitt had a bad work record. In
fact, Wolf ultimately stated that he relied heavily on
Nagle's recommendation in discharging Hewitt. This in-
dicates that Nagel effectively recommended Hewitt's dis-
B From uncontroverted testimony of Hewitt. In testifying, Wolf could
not remember the instance at which Hewitt was given a raise at that
time. He admitted that such a meeting could have occurred but could not
remember it having taken place. Additionally, Nagle, whose employment
with the Respondent had evidently not terminated by the time of the
hearing inasmuch as the Respondent made no reference thereto, was not
called as a witness. Accordingly, I infer that had Nagle been called his
testimony would have supported that of Hewitt rather than the very in-
definite statement regarding the meeting testified to by Wolf. According-
ly, I credit Hewitt.
charge. Furthermore, Wolf admitted that, at an earlier
period, Nagle recommended Hewitt and other employees
for wage increases and that the increases were granted
on Nagle's recommendation.
Upon all of the foregoing, therefore, I find and con-
clude that Nagle is, and was at the times material hereto,
a supervisor within the meaning of Section 2(11) of the
Act.
Employee Hewitt was employed in an apprenticeship
program in which the Respondent was a participating
employer. This evidently was a progressive program
during which the apprentices were given opportunities to
operate the various pieces of equipment in the Respond-
ent's shop. As the apprentices progressed in skill, they
were given raises on the basis of their progression. As
noted above at one point, more fully hereinafter dis-
cussed, during late May 1978 Union Representative Gar-
uccio appeared outside the shop and, during his appear-
ance, Hewitt went out to talk to him. Wolf observed
this, and proceeded to the place where Garuccio and
Hewitt were in conversation. Wolf ordered Hewitt to
return to the latter's work. In a conversation shortly
thereafter, Nagle stated to Hewitt that Nagle thought
Hewitt's job was in jeopardy because Hewitt had joined
the Union and, moreover, Wolf had caught Hewitt talk-
ing to Garuccio, the union representative.
Nagle went on to further explicate his thoughts with
regard to Hewitt's future with the Respondent by stating
he did not think Hewitt would receive the scheduled
raises or be advanced to the more complicated machines
or receive the full training provided under the appren-
ticeship program, and that Hewitt would not be happy in
the Respondent's employ. 7
On the basis of the foregoing, it is concluded that the
Respondent, through Nagle, threatened Hewitt with re-
prisals of loss of employment and benefits in violation of
Section 8(a)(1) of the Act.
Other employees were involved in incidents in which
President Wolf interrogated employees. Thus, sometime
in July 1978, Wolf asked employees Bessie Belknap and
Ronald Oxley to step into his office. According to Belk-
nap, whom I credit, when they entered the room, Wolf
held a paper in his hand which he threw down as if in
anger or disgust. He then turned to Oxley and Belknap
and asked them why they had not stopped Hosterman
from filing certain papers with the Board. Wolf further
asked them if they knew that Hosterman had filed
papers. When they replied they did not have anything to
do with it, Wolf accused Oxley and Belknap with knowl-
edge of the matter. 8
' From credited uncontroverted testimony given by Hewitt. Nagle did
not testify, as noted above.
I The foregoing is taken from credited testimony of Belknap. Belknap,
at the time of the hearing herein, was still employed by the Respondent
and subject to Respondent's retaliation and pressures. In his testimony,
Wolf stated that the only individuals with whom he spoke concerning the
Union were Belknap and Oxley because he knew they were on the
Union's negotiating committee. However, Wolf did not directly deny in
any respect the foregoing testimony. He merely stated that when a paper
was served upon him such as a subpena he would inquire of them what
the matter was about. I have noted that Oxley testified to this meeting
but did not mention in his testimony the matter above mentioned. Never-
theless, upon my observation of Belknap, the fact that she was still em-
Continued
ACE MACHINE CO. 629
On the basis of the foregoing, I find and conclude that
this interrogation was coercive and, therefore, violative
of Section 8(a)(l) of the Act.
Upon an earlier occasion, approximately June 2, 1978,
Wolf held another conversation with Belknap. It would
seem that Belknap had asked Wolf if the latter could see
his way clear to give her underage son a job. The record
reveals Wolf told Belknap he could not hire Belknap's
son without giving some thought about using an under-
age individual in the plant. Wolf asked Belknap to step
into Vice President Richard Appleton's office (Appleton
is also a stockholder and director of the Respondent).
After discussing the possibilities of the job for Belknap's
son, Wolf asked Belknap how many employees attended
the union meeting which would have been held on May
30. Belknap replied that she had not attended the meet-
ing and, therefore, did not know many other employees
attended. Thereupon, Wolf stated, "Well, I don't need to
know their names and who they are, but I need to know
how many." 9
I find that, in effect, this conversation not only was an
unlawful interrogation of Belknap with regard to union
membership of other employees but also constituted, in
its context, a "carrot and stick" situation in which in one
breath Wolf stated he would look into the matter of a
job for Belknap's son and then almost immediately asked
Belknap how many employees attended the union meet-
ing on May 13. This entire conversation, and the interro-
gation, interfered with an employee's Section 7 rights
and, therefore, constituted a violation of Section 8(a)(1)
of the Act.
An incident of similar nature, again involving Presi-
dent Wolf, occurred on June 14, 1978. On that morning,
employee John Hosterman reported for work at his usual
time. Within approximately 2 hours, Wolf approached
Hosterman and stated to the latter, "I know what is
going on around here. I want to thank you for starting
the union problems in this shop again." It should be
noted, at this juncture, that, on the evening before, a
union meeting was held during which union officers
were elected. Hosterman was among those officers. 'o
The foregoing incident, because of its timing on the
morning after the Union's election of officers, indicates
ployed by the Respondent at the time of the hearing herein and because
of the vagueness of the testimony of Wolf, I find and conclude that Belk-
nap's testimony with regard to this incident is credible.
9 From testimony of Belknap which was not specifically denied by
Wolf, who, as heretofore noted, maintained that he spoke only to Belk-
nap and Oxley with regard to union matters that were necessary and
under circumstances which did not constitute threats or coercion.
Accordingly, because Wolf did not directly deny this conversation or
give a different version of it, or even deny that the conversation took
place, I find and conclude that, because Wolf did mention in testifying
that at one time Belknap did ask for a job for her son, Belknap's version
of the conversation, as related, is credited.
'o Although no other employees testified to this incident, Hosterman
testified that the incident occurred under the clock immediately outside
Wolfs office and no other employees were present. However, again, al-
though I have taken into consideration the fact that Hosterman was dis-
charged, as hereinafter related, and therefore could be considered to have
nursed a deep grievance against the Respondent. I nevertheless credit
him because Wolf did not admit or deny this conversation in his testimo-
ny, as heretofore noted. Wolf merely stated, at one point of his testimo-
ny, that the only individuals he talked to about union matters at any time
were Belknap and Oxley. Accordingly I credit Hosterman in this re-
spect
that Wolf had some knowledge of the proceedings of the
previous evening. In view of his earlier questioning, on
June 2, wherein he asked Belknap to tell him how many
attended a union meeting, there is created by the state-
ment to Hosterman an impression of surveillance in that
someone, at Wolfs request, was informing Wolf of what
occurred at union meetings. Accordingly, I find that this
impression given by Wolf of surveillance of the union
meetings constitutes interference with employees' Sec-
tion 7 rights and thereby violates Section 8(a)(1) of the
Act.
Ronald Oxley is an employee whose position with the
Respondent is somewhat closer to Wolf than a number
of the other employees herein involved. Oxley is obvi-
ously somewhat better educated than the other employ-
ees, and his work as an inspector in quality control ne-
cessitated a greater skill and knowledge of the Respond-
ent's product and the methods of their fabrication. Thus,
a somewhat close relationship developed between Oxley
and Wolf.
Oxley, a skilled individual, had planned to leave the
Respondent's employ sometime after the dates pertinent
to this proceeding and had so informed Wolf. In late
spring and early summer of 1978, Wolf, being somewhat
concerned with replacing Oxley when the latter was to
leave because of Oxley's key position in the Respond-
ent's plant, engaged Oxley in a number of conversations
with regard to this matter. However, because of the rela-
tionship the conversations tended to drift into union mat-
ters. It is evident from the record, as indicated, that Wolf
knew Oxley was an ardent supporter of the Union.
At the aforementioned meeting of June 13, at which
union officers were elected, Oxley was selected president
of the Local Union in the Respondent's shop. At that
meeting, John Hosterman was elected vice president,
William Hewitt, treasurer, Bessie Belknap, secretary, and
Mike Paschall, financial secretary. Late on June 14, the
day following the election, Wolf summoned Oxley into
Wolfs office and started a discussion by asking Oxley
whether Oxley's plan to leave the Respondent's employ
was progressing and whether Oxley knew approximately
when he was going to depart. Oxley evidently did not
give Wolf a specific answer. As a result, the next day,
June 15, again approximately at quitting time, Wolf
called Oxley into Wolfs office and engaged Oxley in a
conversation which again centered about whether Oxley
had made up his mind to leave Respondent's employ
and, if so, about when the leaving would occur. Then,
Wolf in a somewhat confidential manner stated to Oxley,
"Ron, there isn't going to be a union here at Ace Ma-
chine. You know, if you don't have a contract you don't
have a union, and I am not going to sign a contract."
Continuing the conversation, Wolf told Oxley, "Ron, I
know that you and five others are pretty strong union. I
am prepared to do my very best to convince you people
that your future will best be served by finding employ-
ment elsewhere." In the same vein, Wolf further in-
formed Oxley, "Ron, you have got 2 weeks of vacation
coming. I submit that you can use my office in searching
for other employment. You can use my telephone. You
can take your vacation time now or at a time or any way
you want." Then, Wolf reverted back to the union
ACE MACHINE Co.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter and stated, "I am prepared to spend any amount
of money that is necessary to keep the Union out of Ace
Machine."
Finally, in closing the conversation, Wolf stated, "I
want a compatible work force. I want people who are all
of the same notion. I want people who are of non-union
conviction." "
Wolfs statements during the above-related conversa-
tion constitute interference with employees' Section 7
rights. The first part of the conversation to the effect
that Wolf was not going to sign a contract with the
Union indicated in no uncertain terms to Oxley that
Wolf had no intention of ever recognizing the Union in
the sense of signing a contract. 1 2
This, of course, constituted interference amounting to
a violation of Section 8(a)(l) of the Act. Further, in the
same conversation Wolfs statement, to the effect that he
would spend any amount of money to keep the Union
out of the Respondent, created the impression that it
would be futile for employees to engage in union activi-
ty. This further constitutes interference in violation of
Section 8(a)(1) of the Act.
Wolfs further statement to Oxley that Wolf wanted
compatible employees who would be of nonunion con-
viction, at the same time urging Oxley to take his vaca-
tion in order to secure another job, constitutes, at the
very least, a veiled threat, and probably an outright
threat to Oxley that, if the latter did not forgo his union
support, he would be dismissed from his employment
with the Respondent. This threat, of course, constitutes a
violation of Section 8(a)(l) of the Act, and I so find.
On June 16, employee John Hosterman was dis-
charged by President Wolf. Present at the discharge in-
terview was Richard Appleton, who, as noted above, is
vice president and a director of the Respondent as well
as a working stockholder. At the end of the exit conver-
sation, at which Hosterman was discharged, he was told
to punch out his timecard. As Hosterman walked out to
where the timecards were located, Wolf said to him, "I
want to thank you again for starting union problems."
Then Wolf asked Hosterman for the papers that Hoster-
man had in his possession as an expediter. These were on
a clipboard by the inspection bench. Hosterman handed
the papers to Wolf and, as he did so, Wolf repeated for a
second time, "I want to thank you again for starting
union problems." After that Wolf ordered Hosterman to
leave. As Hosterman was walking out the door for the
third time, Wolf stated to him, "I want to thank you for
starting union problems."'3
"1 All of the foregoing is from Oxley's testimony. I was most im-
pressed with the manner in which Oxley testified and observed that
Oxley had almost total recall of the events. He did not in any way at-
tempt to obfuscate or to evade questions put to him on cross-examination.
Furthermore, although he admitted his intentions of leaving the Respond-
ent's employ, at the time he testified he was still employed by the Re-
spondent, subject to whatever discipline or reprisals the Respondent
could direct toward him. On the other hand, Wolf, although admitting
conversations with Oxley, did not directly deny the import of the con-
versations as recited above. Accordingly, I credit Oxley's testimony.
12 Although Wolf testified that he told Oxley and the others through-
out the entire negotiations that he would not sign a union shop contract,
this does not seem to be the import of the statements to Oxley.
'3 From credited testimony of Hosterman. Although Wolf obliquely
denied this matter, as noted above, Appleton testified that he did not hear
It is concluded, therefore, that these statements con-
cerning Wolfs derisive thanks to Hosterman for the lat-
ter's starting the "union trouble," even though at the
time Hosterman had been already discharged, constitute
interference with employees' Section 7 rights and, there-
fore, is violative of Section 8(a)(l) of the Act.
C. The Reassignment of Bessie Belknap and the
Discharges of John Hosterman and William Hewitt
1. Bessie Belknap
Belknap was hired at approximately mid-December
1977. Before being hired, Belknap completed 8 months of
training in machine operation and had been certified by
an adult training center in Akron, Ohio, as a production
machine operator. However, when she was hired she
was assigned to benchwork which consisted, for the
most part, of deburring steel parts, a rather unskilled op-
eration. As noted, the Respondent is a metal shop where
various types of metal stampings are made. However,
Belknap's training qualified her for the operation of
lathes, milling machines, shapers, radio pressers, and drill
presses. Thus, the work to which she was assigned did
not require her to utilize her training.
On approximately Feburary 14, 1978, Belknap spoke to
President Wolf in his office. Belknap told Wolf she was
tired and bored with the benchwork and attempted to
give Wolf a 2-week notice of quitting. Wolf sought to
induce Belknap not to quit and promised, upon Belknap's
suggestion, that he would speak to the general shop su-
perintendent, Raymond Flegel, about a possible transfer
of Belknap from benchwork to machine operation. Evi-
dently, Wolf did speak to Flegel as he promised. The
next day, Wolf called Belknap into his office and told
her that the next drill press job would be hers. Wolf fur-
ther promised Belknap the latter could move up to oper-
ating a lathe and other machines also.
In conformity with this promise, the Respondent hired
another individual for the benchwork and, after Belknap
assisted in breaking in the new employee, Belknap was
transferred to the machine area. She successively worked
on drill press, belt sander, and bandsaw, and eventually
Belknap was assigned to operate the hydraulic saw,
which position she retained for approximately 4 months.
Belknap, whose testimony in this respect was uncontro-
verted by the testimony of Flegel, was told by Flegel
that her work in the machine area was satisfactory and
that she was performing well. In fact, undenied by Wolf
is Belknap's statement to the effect that she was doing
such a good job that she was getting out approximately
Wolf make such statements to Hosterman at the time of the latter's dis-
charge. However, Appleton admitted, on cross-examination, that at the
time he could have overheard the part of the conversation during which
Hosterman testified Wolf told Hosterman that he thanked him for starting
the union problems Appleton was approximately 30 feet away. Moreover,
Appleton admitted the shop is a metal processing shop in which substan-
tial noise is normal. Accordingly, although Appleton stated he did not
hear Wolf make the statement, he did not positively deny that Wolf made
the statement. Under all the circumstances, including the distance Apple-
ton was separated from the place where Wolf made the alleged statement
to Hosterman, I find and conclude that Hosterman's version of this por-
tion of the conversation is credible. Moreover, I have discredited Wolf in
other respects and I cannot credit his denials in this respect.
ACE MACHINE CO. 631
as much as the two other employees who were doing the
same work on the other shifts. As a matter of fact, she
was doing so well on the hydraulic saw that she was as-
signed to break in an employee who was to operate that
machine on the third shift, Belknap having been assigned
to work on the first, or day, shift.
As found above, on June 2, when conversing with
Belknap with regard to the possibility of the latter's son
obtaining a position with the Respondent, Wolf interro-
gated Belknap with regard to the number of individuals
who attended the union meeting held 3 nights earlier.
Belknap could not give Wolf a satisfactory answer for
the reason that she had not attended that meeting.
Also, as heretofore related, at the union meeting of
June 13, Belknap was elected recording secretary of the
Local Union. On the following day, June 14, 1978, Rich-
ard J. Garuccio, the Union's staff representative, sent a
letter dated that day to the Respondent's labor counsel,
Harvey Rector, informing the latter that the last propos-
al of the Respondent, made during the ongoing negotia-
tions, had been rejected by the union membership. The
letter further requested that the parties resume negotia-
tions at the earliest practical date. Under the signature on
the letter were listed individuals who were to receive,
and did receive, copies of that letter. Listed thereon
were the representative of the Federal Mediation and
Conciliation Service, Respondent President Wolf, a staff
representative of the United Steelworkers, and Ronald
Oxley as president of the Local Union, John Hosterman
as vice president of the Local Union, and Bessie Belknap
as recording secretary. Oxley credibly testified that he
received his copy of the foregoing letter at his home in
the Akron area on June 16, 2 days after the mailing. Ac-
cordingly, I find and conclude that, despite all protesta-
tions by Wolf to the effect that he had no knowledge of
who the union officers were until sometime after June
20, Wolf knew who the officers listed on that letter
were; namely, Oxley, Hosterman, and Belknap. In any
event, the Respondent stipulated that any letters that
were mailed were received in due course. Furthermore,
the Respondent's labor relations counsel, Rector having
received the letter, even assuming Wolf did not, it is
hardly believable that Rector did not make contact with
Wolf to inform the latter who the union officers were
who were listed at the bottom of that letter.
Approximately I week after the meeting of June 13,
Wolf called Belknap into his office and stated to her, "I
am going to have to back track on my promise of put-
ting you on a machine." Wolf was referring to the oper-
ation of a lathe. Wolf further stated that the Respondent
had an apprentice in the shop who would have to be
moved from machine to machine in order to receive
needed experience. Wolf further informed Belknap that
he could not put her on a lathe for at least a year and a
half.
At this news, Belknap asked if Wolf was telling her to
look for another job. Although Wolf protested that he
was not, when she asked if she should seek work else-
where, would he give her a good recommendation, his
reply was, "Oh, yes. I will write you the best one ever."
Then he added, "You can take time off and look for
work. You can make it up later if you want to but you
don't have to." Several days later, Belknap went into
Wolfs office to pick up the promised written recommen-
dation. However, she did not look for another job, at
least at that time or, in any event, did not leave the Re-
spondent's employ, and was still employed at the time of
the hearing herein.
However, shortly after the foregoing conversation
with Wolf, Belknap was removed from machine work
and put back on the benchwork which she so disliked.
Belknap was never given a reason for this shift in her as-
signment aside from the excuse that an apprentice needed
training. Belknap testified, in connection therewith and
without contradiction, that the individuals who are used
on benchwork, for the most part, are individuals who
have no machine training or experience whatsoever. Ad-
ditionally, at the time of the hearing herein, Belknap was
still doing benchwork. Moreover, although Belknap is
the most senior employee in the benchwork area, other
individuals have been hired to work on machines that
Belknap worked while she was in the machine area.
Wolf testified and cited as one of the factors Belknap's
lack of performance on the machines, basically, that
Belknap did not work as required on certain Saturdays.
However, Belknap testified that there were times during
the period when she was working in the machine area
before her transfer back to the benchwork area, Flegel,
the shop superintendent and her supervisor, would
advise her that there was no work to be done on the hy-
draulic saw on a Saturday and, therefore, Belknap took
the day off. It should be noted that Flegel, in testifying,
did not contradict this testimony of Belknap.
There is a noticeable similarity between Wolfs appar-
ent willingness to give Belknap time to find another job
and Wolfs apparent eagerness to give Oxley time off to
look for another position, as herein above detailed. Both
instances, similar in nature, occurred subsequent to the
date on which it is most likely that Wolf learned of the
fact that these individuals had become officers of the
Union. Moreover, in the case of Oxley, Wolf had dis-
cussed union matters with the latter. This coincidence
and similarity of treatment is cited in reference to the
disposition, below, of the issue of whether Belknap was
reassigned to benchwork for disciminatory reasons.
I find and conclude that Belknap's reassignment to the
benchwork area thwarted her ambition to work at more
intricate and higher paying work and was part and
parcel of the Respondent's desire to not only retaliate
against Belknap for her participation in union activities
but was also designed to make Belknap's employment
with the Respondent so distasteful she would be forced
to quit. The fact that she did not quit does not remove
the taint from the Respondent's motivation, nor render it
any less discriminatory.
In coming to the foregoing conclusion, I have consid-
ered first the timing of Belknap's reassignment. Within a
period of a week to 10 days after Belknap became a
union officer and Wolf learned of this matter, the reas-
signment which was most distasteful to Belknap oc-
curred. Secondly, early in this Decision it has been found
that Wolf and other of the Respondent's supervisors and
managers have threatened employees with reprisals if
they engaged in union activities. The animus thus dem-
ACE MACHINE CO.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
onstrated supports the finding, above, that Belknap's
reassignment was for discriminatory reasons. Further-
more, I have considered Wolfs testimony as a whole
with regard to Belknap, and find that his reasons for
reassigning Belknap are completely unsupported by other
of the Respondent's witnesses and, certainly, there is
nothing in the record to show, at least so far as Wolf
himself is concerned, that Belknap's work in the machine
area was unsatisfactory.
Therefore, on the basis of all of the foregoing facts, I
find and conclude that the reassigning of Belknap from
her hydraulic saw work in the machine area to the less
desirable benchwork was caused by her activities on
behalf of the Union, most specifically her election to
union office, and that the purpose thereof was in reprisal
for Belknap's union activities and for the purpose of dis-
couraging Belknap so that she would quit her job with
the Respondent, thus ridding the Respondent of a proun-
ion enthusiast. Accordingly, I find and conclude that
thereby the Respondent violated Section 8(a)(3) and (1)
of the Act on the date of the reassignment and thereaf-
ter.
2. John Hosterman
As noted above, Hosterman was employed as a super-
visor on the second shift in the drill press area in Febru-
ary 1978. It is apparent that Hosterman did not work out
in that position and soon thereafter quit. Sometime the
first part of May, he was rehired as an expediter of pro-
duction on the first, or day, shift. Hosterman's position
required him to actually physically to move and control
the flow of parts to be processed in the various areas of
the shop so that the work flowed smoothly in accord-
ance with the requirements of the orders which came
into the shop. In this respect, Hosterman was required to
determine, from the orders, the priorities with which the
work was be processed. In this respect, Hosterman could
inform even some of the working officers of the Re-
spondent as to which orders they were to finish first.
However, although the Respondent claims that, be-
cause of this authority, Hosterman was, in fact, a super-
visor, the facts of Hosterman's authority and work re-
quirements lead to the conclusion that he was but a rank-
and-file employee. Thus, without repeating the full list of
indicia of supervisory authority contained in Section
2(11) of the Act, suffice it to say, Hosterman possessed
none of these indicia. Most certainly, he could not hire,
could not discharge, could not discipline, nor could he
recommend effectively any of these. Moreover, and most
pertinent, is the fact that Hosterman had no one to su-
pervise. Although Shop Superintendent Flegel testified
that he did not think, and informed Wolf of his thoughts,
that it was to the best interest of the Respondent not to
assign Hosterman to the position of expediter, neither
Flegel nor any other of the Respondent's officers or indi-
viduals in management capacity complained about Hos-
terman's ability to keep the work flowing insofar as parts
were concerned until after the Respondent, through
Wolf and Respondent's labor relations counsel, learned
that Hosterman had been elected vice president of the
Local Union. Also, while it is highly possible that Oxley
and Belknap harbored prejudices against the Respondent,
inasmuch as they both worked in the areas where Hos-
terman distributed parts, and I have found them credible
in other respects, I credit their testimony to the effect
that they could not find any fault in Hosterman's distri-
bution of the parts to be processed which they, them-
selves, worked on. Oxley described Hosterman's replace-
ment in the position of expediter as an individual who
perhaps had more duties than Hosterman in respect to
recordkeeping but who, nevertheless, was no more satis-
factory at distributing the work than was Hosterman.
From all of the foregoing, I conclude and find that
Hosterman was not a supervisor. He, indeed, had no one
to supervise. The mere fact that he had to inform indi-
viduals as to which work had priorities was not the
resuit of his own discretion, but rather was the result of
the orders as they came into the shop. Thus, as noted
above, I find and conclude that, as of the date of the dis-
charge hereinafter related, Hosterman was a rank-and-file
employee within the meaning of the Act.
We come now to the date of Hosterman's discharge on
Friday, June 16, 1978. During the morning of that day,
Hosterman had made an error in the distribution of the
work. However, it is apparent from the record that the
error was quickly corrected and that it was neither a
costly matter to the Respondent nor did it result in an
inordinate waste of time. Thus, there was little, if any,
economic loss.
It should be noted that the letter from the Union's rep-
resentatives to the Respondent's labor relations counsel
containing the list of officers at the bottom thereof
would have reached Wolfs desk in the ordinary course
of events on June 16. I have already concluded that
Wolf received that letter in due course. Thus, I find and
conclude that Wolf had knowledge that Hosterman was
elected a union officer on June 13. As heretofore found,
the morning after Hosterman was elected local union
vice president on June 13, Wolf walked up to him and
stated, "I know what is going on around here. I want to
thank you for starting the union problems in this shop
again." This, I conclude, is definitely indicative of the
fact that, even failing receipt of the letter noted above on
June 16, Wolf had knowledge that Hosterman was, at
least, very active in union affairs.
To come back to the morning of the day of June 16,
Wolf called Hosterman into his office and began the dis-
cussion by referring to a possibility that Hosterman was
unhappy in his work. What Wolf was referring to at that
time was an earlier complaint by Hosterman that, al-
though his job was a very critical one, he was not given
a raise. At the time he complained, Wolf told Hosterman
that the night shift differential which Hosterman had
been paid in his former position had not been taken away
from him when he was rehired on the day shift and that,
therefore, this was, in effect, a raise. While Hosterman
was not completely satisfied with that explanation, noth-
ing further was said between the two of them regarding
this matter until the afternoon of June 16.
When Wolf confronted Hosterman with the statement
that he thought Hosterman was not happy in his work, a
discussion ensued after which Wolf stated, "If you are
not happy here, we are going to have to terminate you."
With that, Wolf left the office temporarily and returned
ACE MACHINE CO. 633
with Richard Appleton, a stockholder, officer, and direc-
tor of the Respondent, whose official title was vice presi-
dent of engineering. Appleton evidently was the individ-
ual who complained about Hosterman's having assigned
the wrong material in the wrong quantities that morning.
However, in testifiying, Appleton did not state that this
was a usual occurrence. However, Wolf asked Appleton
in Hosterman's presence if he could find anything wrong
with Hosterman's ability to perform and Appleton could
find nothing except the incident of that morning. Wolf
then again repeated that, if Hosterman was not going to
be happy as an employee of the Respondent, they would
have to terminate him.
At the end of this conversation, Wolf told Hosterman
to punch out his timecard. As related above, as Hoster-
man walked out to punch his timecard, Wolf followed
him and stated, "I want to thank you again for starting
the union problems." At that time, Wolf asked Hoster-
man to turn over all of his expediter papers. Hosterman
did as he was told and then Wolf again repeated, "I want
to thank you for starting the union problems." Wolf
thereupon ordered Hosterman to leave the premises, and
as the latter was walking out the door the same state-
ment was again made to him, "I want to thank you for
starting union problems."' 4
From the foregoing, Wolfs animosity toward Hoster-
man for the latter's union activity is established beyond
doubt. Certainly, the timing soon after Hosterman had
been elected vice president of the Union 3 days before;
the letter to the Respondent's labor counsel listing at the
bottom thereof Hosterman as union vice president; and
the statement by Wolf to attempt to force Hosterman to
admit that he was unhappy in his work; and, finally, the
repeated statements upon the discharge of Hosterman to
the effect that Wolf thanked him for bringing about the
union trouble once again indicate beyond doubt that
Hosterman, even though at fault for the improper distri-
bution of parts early in the day, was discharged discri-
minatorily because of Hosterman's union activity and
that the reason given by Wolf for the discharge was pre-
textual. Accordingly, I find and conclude that the dis-
charge was made to discourage union activity not only
of Hosterman but also for other employees in the shop.
This, then, constitutes a violation of Section 8(a)(3) and
(1) of the Act.
3. William Hewitt
Hewitt, as related earlier in this Decision, was hired
through a local apprenticeship program. During the
entire period he worked for the Respondent as a ma-
chine apprentice, his work, if not above average, was at
least somewhat satisfactory to the extent he was not
taken off the program until after he became a union offi-
cer. Although Hewitt's length of service with the Re-
spondent was relatively short, having been hired in early
April and discharged June 20, 1978, he was absent froiw
14 As heretofore noted, Appleton apparently was too far away at the
time to actually hear what was said, although he testified that he did not
hear Wolf make these statements to Hosterman Nevertheless, because I
have not credited Wolf in other respects. I do not credit hi denials that
he made these remarks to Hosterman as he was discharging, the latr'r al:
as Hosterman was leaving the premises
work a number of Saturdays when he was supposed to
have worked. He was reprimanded for this by Wolf.
Hewitt explained to Wolf that his father was ill and, for
reasons not clear in the record, he could not work on
Saturdays. However, after the reprimand, Hewitt did
work on Saturdays.
On Monday, June 19, 1978, Hewitt had a dental ap-
pointment. He called in to the Respondent's office to ex-
plain that he could not be in that day because of the ap-
pointment. He spoke to Vice President Richard Apple-
ton who told Hewitt that it would be all right for him to
be absent.1 s As noted, on June 13, at the union meeting,
Hewitt was elected to the office of treasurer of the Local
Union.
As heretofore found, following Wolf's earlier observa-
tion of Hewitt's conversation at the Respondent's prem-
ises with Union Representative Garuccio, followed by
Supervisor Nagle's threats that by reason of this Hewitt
could possibly lose his job because of his obvious activi-
ties on behalf of the Union, I find and conclude that, as
of the date that Hewitt was elected a union officer, the
Respondent had knowledge of Hewitt's union sympathies
and desires, if not his election to union office. Moreover,
I find and conclude that a letter addressed to the Re-
spondent by Garuccio, bearing the date June 19, 1978,
reached the attention of the Respondent and Wolf before
June 20, 1978, the date of Hewitt's discharge.' 6 I con-
clude from this that Wolf also had had knowledge of
Hewitt's election to office in the Union at the time
Hewitt was discharged on June 20.
Additionally, I also take note of a telephone conversa-
tion, to which Oxley credibly testified, that Oxley was
told by the recently elected union financial secretary,
Michael Paschall, on June 16, that Paschall desired to
in Although Appleton testified with regard to Hewitt's discharge, he
did not deny that Hewitt called in with his excuse of having to attend a
dental appointment and that Appleton had approved his absence.
la Attached to a letter from Union Represenative Garuccio to the Re-
spondent for the attention of President Wolf, which letter is dated June
19, 1978, is a list of newly elected union officers, including the name of
William Hewitt as treasurer of the Local Union. Although the letter con-
tained the Respondent's correct street address, the city named in that ad-
dress is Akron, Ohio, and not Cuyahoga Falls, Ohio, which is the city or
town in which the Respondent's plant is located There is no zip code on
that address. Inspection of this letter, addressed to the Respondent, re-
veals that copies were sent to Oxley, Belknap, and the Federal Mediation
and Conciliation Service as well as the Respondent's labor counsel To
verify that the date of this letter is in error, and should have been June
15, and that the letter was actually received by Wolf on or before June
20. counsel lor General Counsel sought to introduce in evidence an enve-
lope which he claimed is the envelope in which the above letter was en-
closed and received by Wolf Typed on the envelope is the same incor-
rect address as is on the letter and without a zip code number The enve-
lope is postmarked "Cleveland, Ohio, June 15, 1978." It also bears, in
handwriting, a corrected address, with the Respondent's correct zip code,
with the incorrect address crossed out by pen or pencil. Additonally, the
envelope also bears a second postmark from Akron, Ohio, dated June 16,
1978. Moreover, official notice is taken of the fact that Cuyahoga Falls
and Akron, Ohio, are contiguous municipalities. It can readily be in-
ferred, therefore, that an envelope postmarked Akron, Ohio, on I day
would e delivered the following delivery date in Cuyahoga Falls, con-
sidering the extremely short distance it would have to travel. Over and
above all of the foregoing is the statement in Wolfs investigatory affida-
vit that he received only one misaddressed letter from the Union. Ac-
cordiigly, pursuant to Rule 901 (a)(4) of the Federal Rules of Evidence,
i hereby reverse my original ruling made at the hearing rejecting the en-
velope, and I hereby receive the same in evidence as G C Exh. 30
ACE ACHI E CO 63
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately resign as a union officer. In that conversa-
tion, Paschall told Oxley, whom I credit, that Wolf cor-
nered Paschall and talked to him about the "union busi-
ness" and that Appleton had also talked to Paschall
about the "union business" and how this would affect
Paschall's future with the Respondent.' 7
In any event, on the morning of June 20, when Hewitt
reported to work, he discovered that his timecard was
missing from the timecard rack. Hewitt thereupon in-
quired of Supervisor Nagle about the missing timecard
and was informed by Nagle that Wolf had removed
Hewitt's timecard because Wolf intended to reprimand
Hewitt. A short time thereafter, Wolf summoned Hewitt
to Wolfs office. Wolf announced to Hewitt that the
latter was being discharged because he did not have a
doctor's excuse for the previous date and also because
Hewitt's attitude was very bad. Hewitt reminded Wolf
that Appleton had been apprised of Hewitt's dental ap-
pointment and had given him permission to remain off
on that day for that purpose. Moreover, Hewitt offered
to bring in an excuse from the dentist within the next 24
hours, but Wolf replied that that would be too late.
When Hewitt inquired further with regard to Wolfs
statement about Hewitt's bad attitude, Wolf replied that
he did not believe Hewitt was happy in the Respondent's
employ and again claimed that basically, in general,
Hewitt's attitude was poor.
It is notable, from the record, that the reasons given
by Wolf for Hewitt's discharge shifted from time to time
based upon the date upon which the reasons were given.
I have above recited the reason that Wolf gave to
Hewitt at the time that Hewitt was discharged. Addition-
ally, although Wolf earlier had told Hewitt that he could
no longer miss working Saturdays, nevertheless, after the
reprimand, on the Saturday before the date of the dis-
charge, Hewitt did report to work in accordance with
the warning earlier given to him by Wolf. Moreover, as
noted, Wolf refused to give Hewitt the opportunity to
bring in the doctor's excuse regarding Hewitt's dental
appointment even though he must have been aware of
the fact that Appleton had given Hewitt permission to be
off on the day of Hewitt's dental appointment. Addition-
ally, both Belknap and Oxley credibly testified, without
denial by Wolf, that a note was posted on the bulletin
board at the Respondent's premises detailing the reasons
for Hewitt's discharge;' 8 both Oxley and Belknap stated
that the note stated Hewitt was discharged because he
had been tardy on a number of occasions. Yet, this was
not given as the reason for the discharge of Hewitt by
Wolf when he let Hewitt go. Also, according to Bessie
I7 Although Paschall admitted in testifying that he did have a conver-
sation with Oxley in which he expressed his desire to resign as a union
officer within 3 days after he was elected to that office, he denied that
this was caused by any pressure brought upon him by any of the Re-
spondent's officials. However, noting that Paschall and Oxley, at the time
of the hearing herein, were both still employed by the Respondent, I be-
lieve that Oxley's testimony is the more accurate in view of the fact that
his testimony was detrimental to the Respondent and that he was subject,
as much as Paschall, to whatever retaliation the Respondent decidtd to
visit upon him. Moreover, my personal observation of these indiiduals
on the witness stand bolsters my conclusion that Oxley was the more
forthright of the two.
's It was further testified that such notices were a matter of the Re-
spondent's practice posted after any individual was discharged.
Belknap, the note listed Hewitt's failure to work Satur-
days as a reason for discharge. Yet, as noted, Hewitt had
worked on the Saturday before the discharge in order to
comply with Wolfs reprimand earlier given to Hewitt
that the latter had not worked on Saturdays. It should
further be noted that Appleton, in testifying, did not
deny that he had given Hewitt the day off to attend to
Hewitt's dental appointment. Finally, in the investigatory
affidavit which Wolf signed, a further shift and inconsis-
tency appeared. In that affidavit, Wolf stated that Hewitt
was discharged for unsatisfactory and poor work per-
formance. And, finally at the hearing, Wolf testified that
Hewitt was discharged for pure poor performance and
refusal to work Saturdays.
From the foregoing, it is apparent that the shifting and
somewhat contradictory reasons given by Wolf for
Hewitt's discharge lead to a strong suspicion that Hewitt
was discharged for reasons other than poor work per-
formance, or failure to work Saturdays, even though
Nagle and Wolf testified that Hewitt was not the best of
employees with regard to his work performance.
This suspicion leads to the ultimate conclusion, when
the entire record with regard to Hewitt is considered,
that Hewitt was discharged for his union activity. In the
first place, the discharge came within days after Hewitt
was elected to union office and within a very, very short
time after the Respondent's knowledge of the same.
Then, the inconsistent reasons for the discharge must be
considered. The Board has held on many occasions that
shifting, inconsistent reasons for discharge do warrant an
inference that such discharge was legally motivated.'9
Accordingly, by reason of all the foregoing, although
it may be concluded that Hewitt was, perhaps, not the
ideal employee, he was not discharged for that reason,
which I find to be pretextual, but because of his union
activities. Such discharge tends to discourage union ac-
tivity and support, and is discriminatory and, therefore,
violative of Section 8(a)(1) and (3) of the Act, and I so
find.
D. The Refusals To Bargain
1. The appropriate unit and the certification
It is admitted, and I find, that on June 15, 1977, a ma-
jority of the employees in the unit described below,
which is admittedly appropriate, designated the Union as
their representative for the purposes of collective bar-
gaining with the Respondent and that, thereafter, the
Board certified the Union as the bargaining representa-
tive of that unit on June 22, 1977. The agreed-upon ap-
propriate unit is:
All production and maintenance employees em-
ployed at the Respondent's Cuyahoga Falls, Ohio
facility, excluding all office clerical employees and
professional employees, guards and supervisors as
defined in the Act:
The Respondent, in its answer, contends that the certi-
fication, in effect, is of no further force and effect and
I aft Broadcasting Company, 238 NLRB 588 (1978); PRS Limited d/
hba F & M n rring Co, 237 NLRB 628 (1978).
ACE MACHINE CO. 635
that the Union does not represent the employees in the
above-described unit for which the Union was certified.
The Respondent alleges that at the time of the election
there were only 26 employees employed in the Respond-
ent's plant, but that a very short time later the comple-
ment of the employees who would be included in the
unit was raised to 60 and that 60 is now the normal com-
plement of employees in the unit. The Respondent
argues that the Union lost its majority and was not able
to reach an agreement with the Company during the 12-
month period following the certification; that the Union
has not been able to secure and maintain a majority
during the past 16 months, meaning the 16 months be-
tween the date of the certification and the date of the
answer to the complaint and up to and including the date
of the hearing. Therefore, the Respondent contends, the
Union is not now the exclusive representative of the em-
ployees in the above unit for the purposes of collective
bargaining.
Nevertheless, at the hearing herein, aside from the tes-
timony of President Wolf, who testified that approxi-
mately 300 employees have gone in and out of the Re-
spondent's plant since the certification, the Respondent
has made no effort to show that the Union had, indeed,
lost its majority. Nor has the Respondent shown that at
the time of the election the 26 eligible employees were
not a representative group or that, although the unit
might have expanded in numbers, the work performed
by the unit members and their classifications has been
changed. In fact, the Respondent has emphasized that
there is no set table of classifications for the Respond-
ent's employees. Evidently, according to Wolf and other
of the Respondent's officials, employees are changed
from machine to machine, and, therefore, there is no spe-
cific classification of employees. Accordingly, I find and
conclude that, as of the date of the election and certifica-
tion, the complement of employees was representative of
the employees still employed in the Respondent's facility.
Additionally, as will be set forth hereinafter and has been
set forth hereinabove, if, indeed, the Union has lost its
majority status, such loss of majority status has been at-
tributable, at least in major part, to the Respondent's
unfair labor practices. Accordingly, the Respondent
cannot now be heard to claim that it has either an objec-
tive reason to believe that the Union has lost its majority
status or that the Union actually has lost its majority
status.
2. The refusal to furnish information
As heretofore mentioned, in July 1977, approximately
a month after the Union's certification, the Union re-
quested that bargaining toward a collective-bargaining
agreement begin. The Respondent did honor the request
to begin bargaining and, at the very first session, the
Union submitted its proposals in writing, which propos-
als were used as a basis for negotiations from that point
until the Respondent broke off negotiations in September
1978.
While the record does not show how many bargaining
sessions were held between the parties, a number of them
took place. At the outset, President Wolf and Harvey
Rector, the Respondent's bargaining representative and
labor counsel, informed the union representatives that
any matter upon which agreement was reached would
have to be ratified by the Respondent's board of direc-
tors. Bargaining on behalf of the Union was conducted
by a negotiating committee which was, in the main,
headed by Union Representative Garuccio. During the
negotiations, various counterproposals made by the Re-
spondent's representatives were rejected by the Union's
membership.
On or about March 9, 1978, the Union, through Gar-
uccio, requested the Respondent to furnish to the Union
the names and addresses of all unit employees then em-
ployed by the Respondent. From that day to date, the
Respondent has consistently refused.2 0
The Respondent has refused to supply this list of
names on two separate grounds. In the first place, the
Respondent insists that it is a company policy not to fur-
nish the names and addresses of its employees to anyone
for any reason whatsoever. Secondly, as a legal defense,
the Respondent contends that, prior to the election, the
Respondent furnished to the Union the so-called Excelsi-
or list which listed the employees employed by the Re-
spondent in the unit found appropriate. Of course, at the
time the demand for the list was made in March 1978
and thereafter, that original list was not only outdated,
but was also extremely inaccurate because of the large
turnover of employees, as alleged by the Respondent,
and, moreover, the complement of employees has in-
creased to more than double the size it was at the time of
the election in June 1977. Accordingly, the second
reason fails as a matter of law.
The Supreme Court has held,21 "There can be no
question of the general obligation of an employer to pro-
vide information that is needed by the bargaining repre-
sentative [of his employees] for the proper performance
of its duties .... " Moreover, where the union has re-
quested the names of the bargaining unit employees and
other information with regard to their classifications,
dates of employment, and addresses, the Board has
held,2 2 "This is the type of information which is pre-
sumptively relevant to the union in its role as the em-
ployees' exclusive bargaining representative."
I have heretofore set forth the fact that the rate of
turnover of employees since the date of certification has
been great and the size of the unit has more than dou-
bled. Moreover, the Respondent has not shown that the
Union can readily reach, or possesses the means of
reaching, both member and nonmember employees who
are included in the unit. Additionally, the information re-
quired is readily available to the Respondent. Considera-
tion of these factors under the foregoing circumstances
makes it clear that the provision of the information re-
quested by the Union from the Respondent is required
by the Act.23 Moreover, the Respondent has never at
any time, aside from stating that it gave the names of
20 Wolf admitted that, throughout the negotiations, the Union request-
ed the list of names and addresses from the Respondent.
' NL.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967).
2 California Blowpipe & Steel Company. Inc., 218 NLRB 736, 742-743
(1975).
23 See Magma Copper Company, San Manuel Division, 208 NLRB
(1974).
ACE MACHINE CO. 635
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the Excelsior list, and that it maintains a
policy of not furnishing such names, shown that there is
a lack of need for this information in order for the Union
to perform its duties as the certified bargaining repre-
sentative of the unit employees. Nor has the Respondent
shown that the information requested is available else-
where.2 4 Moreover, as noted, the information which the
Union has been able to accumulate since the certification
has certainly become outdated, outmoded, and useless
for the intended purpose. 25 Finally, the parties have not
reached any agreement as of the date of the hearing
herein. Inasmuch as the Respondent has consistently re-
fused during the entire period of negotiations to consent
to a union-security clause in any bargaining agreement
which might be reached, the Union has no means of
knowing with which employees to communicate or the
manner in which it can communicate with such employ-
ees. Also, the Union cannot communicate with the em-
ployees at the plant inasmuch as, as credibly testified by
Garuccio, and not heretofore mentioned, the Respondent
has consistently refused to permit Garuccio entry to the
Respondent's facility nor has the Respondent permitted
the posting of any union matters on any of the bulletin
boards or any other places where notices are posted
within the Respondent's facility.
Accordingly, by reason of all of the foregoing, I find
and conclude that the names and addresses of the unit
employees are necessary for the Union to perform its
role as the collective-bargaining representative of the Re-
spondent's employees and that the Respondent's refusal
to furnish this information upon proper request, as noted,
constitutes a refusal to bargain in good faith within the
meaning of Section 8(a)(5) and (1) of the Act.
3. Refusal to sign a written agreement
Reference has been made, above, to the fact that Wolf,
during the negotiations, apprised the Respondent's board
of directors of developments during the course of the ne-
gotiations. Wolf testified that, during the preliminary ne-
gotiations sessions, the Respondent's board of directors
cautioned Wolf to be discreet and to proceed with care
in the negotiations. Of course, during that period of time,
the Respondent, as noted, was represented by Wolf and
by the labor relations counsel, Rector. Although the
record does not reveal the number of sessions held, it is
probable that at one point in approximately March 1978
Wolf, at a session with the board of directors, informed
them the direction the negotiations had taken at that
point and the board was, according to Wolf, somewhat
displeased. The directors thereupon instructed Wolf to
withdraw several of his tentative agreements and to
renew negotiations based on a different set of guidelines.
Accordingly, on March 25, Wolf wrote a letter to
Herbert Stottler, an International union representative,
who also acted as a union negotiator, in which Wolf ad-
mitted that the Respondent had made a final offer and
that the Respondent and the Union were nearing a tenta-
tive agreement. Wolf then went on to remind Stottler
that, at the original meeting, all of his actions and deci-
24 California Blowpipe d Steel Company. Inc., supra.
2 Autoprod, Inc., 223 NLRB 773 (1976).
sions would be subject to the approval of the Respond-
ent's board of directors. Wolf ended the letter by re-
questing that the next negotiating meeting should be held
after April 10, 1978.
Wolf further testified that he discussed each wage rate
proposal with the board of directors throughout the
entire negotiation period, which lasted, as noted above,
from July 1977 through July 1978, and was instructed as
to how much the Respondent was prepared to offer the
Union. To sum up, Wolfs testimony was to the effect
that the Respondent's board of directors was kept con-
tinuously informed of the negotiations and was therefore
aware of what was taking place during the entire period.
One of the items which the Respondent consistently
refused consent was the request of the Union for union-
security provisions. This continuing request for union se-
curity on the part of the Union was, to a major extent,
one of the chief stumbling blocks in reaching an agree-
ment. Finally, on July 3, 1978, at the last meeting held
between the parties, Wolf and Rector were in attendance
for the Company. For the Union were Garuccio,
Stottler, Oxley, and Belknap. During that meeting, the
economic provisions were ultimately agreed upon, the
details of which are not here relevant. In fact, the wage
rates which were agreed upon for the various classes of
machanics were made retroactively effective to May 11,
1978. Attempts were made by both parties to get some
additional movement in other areas in addition to wages.
When this was proposed by the Union, Wolfs response
was, "We made a final offer and we will stand on it."
Then, union security was again brought up and Wolf,
who was still in attendance at the meeting, indicated that
there was no way that the Respondent would agree to a
contract with a union-security clause. At this point, Gar-
uccio stated that, if there were no union-security clause,
would the Company be agreeable to the contract as to
the matters which were already tentatively agreed upon
because that was the one area in which the parties were
in agreement. Upon this offer, Garuccio left the room to
call union headquarters. He came back with the assent of
the Union to drop union security if the Respondent
would accept the balance of the contract as it had been
negotiated up to that point. He informed Wolf that, as
far as the Union was concerned, the Union would forgo
the union-security clause and therefore they would have
a contract. At that point, Wolf consented and a contract
was for a year's term as proposed by the Union. Wolf
then affirmatively stated that they had a tentative agree-
ment.
At that point, Wolf, evidently having other matters to
attend, announced he had to leave the meeting. Before
going, however, the parties went over each and every
item that had been agreed upon in order to prevent any
misunderstanding. Before Wolf left, he and the union
representatives did agree to each and every item. Then,
Garuccio and Wolf having been satisfied that all parties
were in basic agreement, Garuccio suggested that Rector
and Garuccio sit down, then and there, and finalize all
other portions of the tentative contract which had not
been initialed previously by representatives of both par-
ties. Wolf consented and left, indicating that he might
have to talk to his board of directors about the agree-
ACE MACHINE CO. 637
ment. But, as Wolf left, Garuccio asked Wolf if Rector
was in authority to agree to the contract and Wolfs re-
sponse was in the affirmative. Wolf added that Rector
had full authority,
Thereafter, Wolf having departed from the meeting of
July 3, 1978, Garuccio and Rector marked up the work-
ing copy of the proposals which had been the basis for
the negotiations throughout the entire negotiation period,
arriving at a complete agreement by initialing each and
every item by the end of that meeting. In other words,
every item that was to be in or out of the final contract
was agreed upon, and all those that were agreed upon
were initialed by both Rector and by Garuccio. Thus, an
entire agreement was reached on that date. Even some
corrections in wording were initialed. 26
Upon agreement of Garuccio and Rector, at the close
of the meeting of July 3, Garuccio consented to prepare
a complete, final copy of the agreed-upon contract and
present it to the Respondent. Garuccio did this and, on
August 16, mailed the copy of the tentative final agree-
ment which reflected the total of the agreement of the
parties reached on July 3. However, there were two in-
advertent errors in the agreement. One article was inad-
vertently included and a second article was inadvertently
omitted. However, these were matters which could be
easily corrected and were admittedly not fatal to the
entire agreement. For over a month no word was re-
ceived from the Respondent in response to Garuccio's
submission of the written agreement. Finally, the Re-
spondent through Wolf, by letter dated September 21,
1978, informed the Union as follows:
I regret to inform you that the Ace Machine Com-
pany Board of Directors, at a meeting held Septem-
ber 21, 1978 did not approve the tentative agree-
ment reached at the last meeting held at the Federal
Mediation and Conciliation Service in the Federal
Building, Akron, Ohio.
The foregoing represents the entire letter. No explana-
tion for the rejection of the agreement was offered by
the Respondent. It is evident, therefore, that the entire
agreement, after all the final negotiations and after the
tentative agreement reached on July 3, was completely
rejected without any explanation whatsoever on the part
of anyone representing the Respondent, including Wolf
and Rector. During his examination at the hearing
herein, Wolf did not state that the two inadvertent errors
were the cause of the rejection, but maintained only that
the board of directors had a good-faith disapproval of
the contract, and that the Respondent desired only to re-
negotiate each and every term as though no agreement
had been reached on any terms whatsoever.
The law is well settled that, when an employer refuses
to execute an agreement reached with a union's repre-
sentatives, it violates Section 8(a)(5) and (1) of the Act.2 7
Nor would the two inadvertent errors in the written sub-
mission mailed by Garuccio to the Respondent on
28 This agreement was received in evidence and constitutes, together
with Garuccio's credited testimony, the basis for the foregoing recitation
of what was contained in the agreement that was reached on that date.
27 See H. J Heinz Company v. N.L.R.R. , U.S. 514 (1941).
August 16 excuse a complete refusal to execute the
agreement previously reached.2 8
Of course, the authority invested in any bargaining
agent may be limited in the negotiation of a collective-
bargaining agreement which is subject to ratification by
either union membership or, as in the case at bar, the
board of directors of the Respondent.2 9 However, an
employer cannot sit by for an extended period of time
while its representatives negotiate, reach agreement, and
then under guise of exercising its reserved right of ratifi-
cation reject completely the results of negotiations. 30
To fully assess the legal effect of the rejection of the
agreement and the failure of the Respondent to execute
the same without explanation thereof, it is necessary to
review the corporate structure of the Respondent and
the nature of the alleged limited authority of the negotia-
tors for the Respondent to commit the Respondent to a
binding agreement requiring execution thereof. Because
the rejection letter of September 21, 1978, states that the
board of directors did not approve of the tentative agree-
ment, a first inquiry must be made as to how the board
of directors was composed at the material time.
The Respondent is a closely held corporation whose
stock is divided between five individuals. President Wolf
and his wife own 60 percent of the stock; a Mr. and Mrs.
J. F. Stanford hold approximately 20 percent; Richard
Appleton holds from 8 to 10 percent; and a church not
connected with the corporation except for its stock own-
ership holds approximately 7 percent. The board of di-
rectors, made up completely of stockholders, with the
exception of the church, are as follows: Richard Apple-
ton, Mr. and Mrs. Stanford, and Mr. and Mrs. Wolf.
Evidently there are no set dates for the meetings of
the board of directors of the Respondent as a corpora-
tion, which is typical of small business corporations of
the type of which the Respondent is an example. How-
ever, on cross-examination, Wolf admitted that there had
been no board of directors meeting within the 6-month
period preceding the hearing date herein and, further-
more, he could not remember when there was a last
formal board of directors meeting. With regard to the
formality of the operations of the board of directors,
Wolf merely stated that it was one of "those lawyer
things," that a lawyer was paid a fee to set up a set of
corporate books and a charter. In view of this, and in
view of the fact that both Wolf and Appleton were
working stockholders who actually participated in the
daily operation of the plant, it is hardly conceivable that
the board of directors was not fully aware of the prog-
ress of the negotiations as they proceeded over a period
of approximately 1 year. In fact, on March 25, 1978, as
heretofore stated, Wolf reiterated in his letter to Stottler
of the Union that, from the outset, all of his actions and
decisions at the meeting were subject to the approval of
the board of directors. Accordingly, when Wolf left the
meeting on July 3, 1978, and informed Garuccio that
28 Trojan Steel Corporation, 222 NLRB 478 (1976); Bronson Methodist
Hospital, 223 NLRB 95 (1976); Raven Industries, Inc., 209 NLRB 335
(1974).
29 Aptos Seascape Corporation, 194 NLRB 540 (1971)
30 NL.R.B. v. Alterman Truck Lines. Inc., 587 F.2d 212 (5th Cir.
1979).
ACE MACHINE CO.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rector was fully authorized to complete the rather
minor matters required to finalize the terms of the pros-
pective agreement, the terms agreed upon that day were
terms of which the board of directors had full knowl-
edge or, at least, terms with which they had been ap-
prised inasmuch as the only remaining important matter
which had not been agreed upon by that time was the
outstanding request of the Union for a union-security
clause. Since what was agreed upon at that date, July 3,
1978, was substantially what had been earlier approved
by the Respondent, and because Wolf had stated that
Rector had full authority to complete the minor matters
which required negotiations and initialing, it can only be
concluded that the agreement that was made on that day
was an agreement of which the board of directors was
fully cognizant and to which Wolf would not have con-
sented had not the board of directors had knowledge
thereof.
Also to be considered in connection with the forego-
ing, as heretofore concluded in this Decision, Wolf, at a
somewhat earlier date, told employee Oxley that the Re-
spondent, or at least Wolf as president of the Respond-
ent, was not going to sign the agreement.
Accordingly, although as acknowledged heretofore, an
employer may properly limit the authority of a bargain-
ing representative, there was really no such limitation
here in the person of Wolf and his labor counsel, Rector.
As a matter of fact, Rector himself, although not testify-
ing, admitted at one point in the proceeding that he
thought they had a contract on July 3, when he initialed
the agreed-upon portions of the proposals with Garuccio.
By reason of all of the foregoing, the apparent knowl-
edge of the board of directors, the statement to Oxley by
Wolf, the authority given by Wolf to Labor Relations
Counsel Rector, the fact that Wolf and his wife own the
majority of stock and therefore had basically the final
persuasive vote at any meeting of the board of directors,
I find and conclude that the refusal to execute the writ-
ten contract, without explanation, was but a sham, as
contended by the General Counsel, and that the Re-
spondent's rejection constituted a bad-faith refusal to bar-
gain within the definition set forth by Section 8(d) of the
Act, and was and is a violation of Section 8(a)(5) and (1)
of the Act.
4. The withdrawal of recognition of the Union
There is set forth heretofore a discussion with regard
to the Respondent's contention that the Union has lost its
majority status. In fact, at the hearing herein, the Re-
spondent stipulated that since September 27, 1978, the
Respondent has withdrawn such recognition and has ad-
mittedly refused to bargain with the Union for the rea-
sons herein earlier set forth.
In seeking to establish an objective reason for refusing
to recognize the Union after the expiration of the certifi-
cation year Wolf gave the following: (a) the advice of
his counsel; (b) his personal opinion based upon his busi-
ness judgment, basically the turnover of employees from
the date of the Union's election until the date of Septem-
ber 27, 1978; and, finally, (c) his discussion with approxi-
mately no more than a dozen out of the 60 employees in
the bargaining unit as of the date the Respondent with-
drew recognition.
The Board has stated that, with regard to objective
considerations, "To establish sufficient objective base,
however, requires more than the mere assertion thereof
based upon the employer's subjective frame of mind.
Furthermore, the employer must not have engaged in
any conduct tending to encourage employee disaffection
from the union."31
The record herein is replete with instances of the type
of unfair labor practices which the Board has long held
demonstrate that the employer's so-called objective rea-
sons for failing to recognize and bargain with the certi-
fied union are valid. Certainly it cannot be found that the
Respondent's "objective reasons" for stating that the
considerations which Wolf felt imposed upon him the
duty not to recognize his employees' union are such that
a good-faith doubt as to the Union's continued majority
status could not have been in the mind of Wolf or any of
the other corporate officers.
Moreover, beyond citing the large turnover of unit
employees, the Respondent has not in any way demon-
strated that the Union has indeed lost its majority status.
Although the majority status of a certified union cannot
be attacked during the certification year, absent unusual
circumstances not here present, there is a presumption of
continuing majority after the certification year, unless
the Respondent can overcome such presumption. Cer-
tainly, here, in view of the unfair labor practices which
could have caused defection from the Union, there is an
absence of a sufficient basis upon which to make a find-
ing that the continuing presumption of majority has been
overcome. Accordingly, in addition to all that has been
said on this matter, above, I find and conclude that the
Respondent's refusal to recognize and bargain with the
Union on and after September 27, 1978, constitutes a fur-
ther refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
5. The overall refusal to bargain in good faith
It is unnecessary to unduly lengthen this Decision with
a repetition of all that has been heretofore discussed with
regard to the various acts of the Respondent in violation
of Section 8(a)(1), (3), and (5) of the Act. Needless to
say, all of these violations, in toto, are matters upon
which the Board in the past has relied to find a violation
of refusal to bargain in good faith, with the purpose in
view by the Respondent not to reach an agreement with
its employees' bargaining representative. The Respondent
here does not defend its refusal to bargain upon the basis
that all it engaged in was hard bargaining.3 2 However,
the Respondent's adamant position with regard to the
Union's proposal for a union-security clause in conjunc-
tion with the Respondent's refusal to execute the agreed-
upon contract provisions, the coercive statements to em-
ployees to the effect that the Respondent would never
sign a collective-bargaining agreement with the Union,
the other threats in violation of Section 8(a)(1), the dis-
sl James W. Whirfield, d/b/a Cutten Supermarket, 220 NLRB 507, 508
(1975).
"I See N.LR.B. v. American National Insurance Co., 343 U.S. 395
(1952).
ACE MACHINE CO. 639
criminatory discharges and, transfer, the Respondent's
refusal to furnish necessary information to the Union and
finally, the Respondent's unlawful withdrawal of recog-
nition and ultimate refusal to bargain with the Union
constitute sufficient reason to find that, upon the entire
record, from the date the negotiations began and con-
tinuing to date, the Respondent has engaged in, and is
engaging in, conduct constituting bad-faith bargaining in
violation of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) of the Act, it will be rec-
ommended that the Respondent cease and desist there-
from.
Having found that the Respondent has engaged in, and
is engaging in, threats and other coercive acts interfering
with the employees' Section 7 rights, it will be ordered
that the Respondent cease and desist therefrom.
It having been found that the Respondent has discri-
minatorily discharged employees John Hosterman and
William Hewitt, it will be ordered that the Respondent
reinstate each of them to their former or equivalent posi-
tion, and make them whole by paying to each of them a
sum of money equal to that which each would have
earned but for the discrimination visited upon them by
the Respondent. Backpay shall be computed with interest
thereon in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).33
It having been found that the Respondent discrimina-
torily reassigned Bessie Belknap from a more desirable
position to a less desirable position, it will be ordered
that the Respondent reassign Belknap to her formerly
held or equivalent position without loss of seniority in
such position. It will further be recommended that Bessie
Belknap be reimbursed for any loss of earnings she may
have suffered by reason of the discriminatory transfer in
the same manner as set forth above in the cases of John
Hosterman and William Hewitt.
It having been found that the Respondent has unlaw-
fully refused to provide the Union with a list of unit em-
ployees' names and addresses, it will be ordered that
such information be furnished to the Union by the Re-
spondent upon request by the Union.
It having been found, further, that the Respondent has
failed to execute an agreed-upon written contract em-
bodying the terms and conditions reached on July 3,
1978, it will be ordered that the Respondent immediately
3 See, generally, Isis Plumbing d Healing Co., 138 NLRB 716 (19621.
execute the agreement embodying such terms and condi-
tions of employment and that, in order to fully remedy
its refusal to execute such agreement, the Respondent
make whole all employees covered by the aforesaid col-
lective-bargaining agreeement or the loss of any benefits
which would have accrued to them under the contract
had the Respondent executed the same within a reason-
able time after the same was proffered to the Respondent
for signature, with interest to be computed as set forth
above.
Because the Respondent has refused to recognize the
Union, it will be ordered that the Respondent recognize
and bargain with the Union as the exclusive representa-
tive of its employees in the appropriate collective-bar-
gaining unit for a period of no less than I year from the
date on which the Respondent fully complies with the
other terms of this Order.
Upon the basis of the foregoing findings of fact, and
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a 1. ' or organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees by threaten-
ing them with reprisals including loss of employment, by
creating the impression of surveillance, and by other acts
of interference with the employees' Section 7 rights, the
Respondent has engaged in, and is engaging in, unfair
labor practices prohibited by Section 8(a)(1) of the Act.
4. By discriminatorily discharging employees John
Hosterman and William Hewitt, and discriminatorily
transferring Bessie Belknap, all for the purpose of dis-
couraging membership in the aforesaid Union, the Re-
spondent has engaged in unfair labor practices prohibited
by Section 8(a)(3) and () of the Act.
5. By refusing to furnish to the Union information nec-
essary for the Union to properly function as the collec-
tive-bargaining representative of the Respondent's em-
ployees in the unit herein below set forth, the Respond-
ent has violated, and is violating, Section 8(a)(5) and (1)
of the Act. The appropriate unit is:
All production and maintenance employees em-
ployed at the Respondent's Cuyahoga Falls, Ohio
facility, excluding all office clerical employees and
professional employees, guards and supervisors as
defined in the Act.
6. By refusing to execute and sign the agreed-upon
collective-bargaining agreement reached by the Respond-
ent and the Union in their negotiations, the Respondent
has violated, and is violating, Section 8(a)(5) and (1) of
the Act.
7. By ceasing and refusing to recognize the Union as
the collective-bargaining representative of the Respond-
ent's employees and by refusing to bargain generally
with the said Union, the Respondent has violated, and is
violating, Section 8(a)(5) and (1) of the Act.
ACE MACHINE CO.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and pur-
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing:
ORDER 34
The Respondent, James F. Stanford, Inc., d/b/a Ace
Machine Co., Cuyahoga Falls, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union membership, activities, and desires, and the
union membership, activities, and desires of other em-
ployees.
(b) Threatening employees with discharge and other
reprisals for supporting and otherwise engaging in activi-
ties on behlaf of the Union.
(C) Creating the impression of surveillance of the em-
ployees' union activities and of the Union's meetings at-
tended by the Respondent's employees.
(d) Creating the impression of futility on the part of its
employees to engage in union activity or to support the
Union.
(e) Maintaining and enforcing an invalid union no-so-
licitation rule.
(f) Discharging employees John Hosterman and Wil-
liam Hewitt for engaging in and supporting union activi-
ties in order to discourage union membership.
(g) Transferring Bessie Belknap from a more desirable
position to a less desirable position in reprisal for Belk-
nap's support of and membership in the Union in order
to discourage union activity and support of the Respond-
ent's employees.
(h) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to form, join, assist, or be represented by any labor orga-
nizations, to bargain collectively through representatives
of their own choosing, or to 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, except as such rights may be affected by
an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized under
Section 8(a)(3) of the Act.
(i) Refusing to furnish to Respondent's collective-bar-
gaining representative, the Union herein, information
necessary for the Union to perform its duties as the col-
lective-bargaining representative of the Respondent's em-
ployees.
(j) Unlawfully refusing to execute and sign the written
agreement representing the terms and conditions thereto-
fore agreed upon between the Union and the Respond-
ent.
34 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(k) Refusing to recognize and bargain with the Union
as the collective-bargaining representative of the Re-
spondent's employees in an appropriate unit as herein-
after set forth.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to John Hosterman and William Hewitt im-
mediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without loss of seniority or other
rights and privileges, and make them whole for any loss
of earnings they may have suffered by reason of the dis-
crimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Transfer Bessie Belknap to her former position in
the machine department, without loss of seniority, and
make her whole for any loss of earnings she may have
suffered by reason of the discriminatory transfer to the
bench department in the manner set forth above.
(c) Sign and otherwise execute and place into full
effect the written agreement submitted by the United
Steelworkers on August 16, 1978, with any inadvertent
errors omitted.
(d) Make whole the employees in the unit represented
by the Union for any loss of benefits which may have
accrued to them by reason of the failure to execute the
collective-bargaining agreement, as set forth above.
(e) Provide to the Union a list of names and addresses
of all the employees in the following appropriate unit:
All production and maintenance employees em-
ployed at the Respondent's Cuyahoga Falls, Ohio
facility, excluding all office clerical employees and
professional employees, guards and supervisors as
defined in the Act.
(f) Recognize and bargain, upon request, with United
Steelworkers of America, AFL-CIO-CLC, and any
local union thereof, established for the purpose of servic-
ing the employees in the aforesaid unit and the above
aforesaid agreement.
(g) 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 rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(h) Post at its facility in Cuyahoga Falls, Ohio, copies
of the attached notice marked "Appendix." 35 Copies of
said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
,. In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
ACE MACHINE CO. 641
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(i) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.