Allied Chain Link Fence Co.

National Labor Relations Board - Board Decisions

Feb 12, 1960

126 N.L.R.B. 608 (N.L.R.B. 1960)

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining within the meaning of Section 9(b)
of the Act 10
[Text of Direction of Election 20 omitted from publication ]
AfRiviBERS RODGERS and JENKINS, dissenting
We dissent because in our view the National Labor Relations Board
does not have jurisdiction over the Employer in this case.
10 The unit was stipulated by the parties
20 In its brief the Navajo Tribe asserts that ( 1) A direction of election and a re-
quirement that the Employee enter into collective bargaining as to its operations on the
Navajo reservation would in effect require the Employer to violate the tribal labor rela
tions resolution , and (2 ) such a violation of Navajo law would entitle the Navajo Tribe
to cancel the Employer ' s lease and shut down the Employer 's operations on the reserva-
tion As to (2), the Employer adverts to paragraph 14 of its lease from the Navajo
Tribe , which provides
The lessee further agrees that it will not use or permit to be used any part of
said premises for any unlawful conduct or purposes whatsoever , , and that any
violation of this clause by the lessee or with its knowledge , shall render this lease
voidable at the option of the lessor
In light of these facts , the Employer requests that the Board stay any order directing
an election pending a final judicial determination of the Board's jurisdiction herein
Whether or not the lease can be terminated by the Navajo Tribe on a theory that "un
lawful conduct" was committed by the Employer in violation of the tribal resolutions
(which are clearly contrary to statutory law under the Act), is a matter outside the
purview of a representation proceeding Whether or not the Board stays its election
order would not affect such rights , as exist of the Employer or any of the parties to
proceed in the courts concerning any matter directly or indirectly involved herein
Since such a stay would be contrary to the Board s consistent practice and would, in our
opinion, serve no useful purpose , the Employer 's request is denied
Cecil J. Daggett , George Kruft , Joe W. King , Lewis Carriere,
William Rote, Paul Ecenia, W. F. Trent , and Roy Kruft d/b/a
Allied Chain Link Fence Company and Shopmen 's Local 694
of the International Association of Bridge , Structural and
Ornamental Iron Workers , AFL-CIO Case No. P3-CA-856.1
February 12, 1960
DECISION AND ORDER
On August 14, 1959, Trial Examiner Arthur E Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report, and
supporting briefs
'The original case number-39-CA-856-has been amended to reflect a recent change
in the numerical designation of cases from the Board's regional office in Houston, Texas
126 NLRB No 74
ALLIED CHAIN LINK FENCE COMPANY 609
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only insofar as consistent with
our decision herein.
The Trial Examiner found, among other things, that the Respond-
ent did not violate Section 8 (a) (1) of the Act. We disagree, as, in
our view, the uncontradicted testimony of Gant and Meche establishes
such a violation with respect to them.
1. Gant testified that shortly before the Board election in Septem-
ber 1958, Hansen, a supervisor, asked him what he thought about the
Union and asked him how he was going to vote, and that Gant stated
that he intended to vote but did not know how. The Trial Examiner
stated that he credited only that part of Gant's testimony as to what
he told Hansen about his voting intentions, and he found no interro-
gation of Gant. However, Gant testified that his disclosure to Hansen
of his voting intentions was in response to a question by Hansen, and
we perceive no basis nor is any suggested by the Trial Examiner for
crediting only that part of Gant's testimony as to his answer to Han-
sen's inquiry, while not crediting that the inquiry was made by Han-
sen. We find, therefore, that such inquiry was, in fact, made.
Gant further testified that Drummond, another supervisor, told him
after the election that they were going to lay him off because he voted
for the Union, but the Trial Examiner, without stating a reason, did
not credit this evidence. This testimony may have been rejected by
the Trial Examiner because (1) it appeared to him inconsistent with
Gant's admission that so far as he knew only he and the Union's rep-
resentative were aware that he had signed a union card, and (2) the
Trial Examiner concluded that Gant was not in fact laid off for union
activity but for economic reasons, a conclusion which we have adopted.
However, as to (1), the fact that Gant was unaware of the source of
Respondent's knowledge of his union activity does not preclude the
existence of such knowledge. As to (2), while there is insufficient
proof that Gant was, in fact, laid off for union activity, that does not
foreclose a finding that Drummond ascribed Gant's layoff to such
activity. Accordingly, we find no fatal inconsistency in Gant's testi-
mony, nor is the statement attributed by him to Drummond so in-
herently improbable as to render Gant unworthy of belief. Accord-
ingly, we find, contrary to the Trial Examiner, that the Respondent
violated Section 8 (a) (1) of the Act by Hansen's interrogation of
554461-60-vol. 126-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gant and Drummond's statement to Gant that he was being dis-
charged for favoring the union 2
2. Meche testified that Drummond talked to him day after day
about the Union and at one time told him, "If the Union goes through
they would cut the hours down to where we wouldn't make anything";
that Drummond asked him whether he had signed an authorization
card, and stated that, "It would be worth $1,000" for him (Drum-
mond) "if he knew about the Union and the guys that signed cards";
and that if the employees were represented by a union the Respondent
would close its plant. The Trial Examiner did not include Meche in
his enumeration of specific witnesses whose testimony he did not
credit, and there appears to be no inherent inconsistency in Meche's
testimony considered as a whole. In the absence of any indication
in the Intermediate Report of any reason for not crediting Meche,
and in the absence of any inherent inconsistency in Meche's testimony
or of any testimony to the contrary, we credit Meche's testimony and
find, contrary to the Trial Examiner, that by the statements of Drum-
mond to Meche set forth above the Respondent violated Section 8(a)
(1) of the Act 3
Upon the basis of the foregoing findings of fact, and the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Respondent Allied Chain Link Fence Company is engaged in
commerce within the meaning of Section 2(6) and ( 7) of the Act.
2. Shopmen's Local 694 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, is a labor or-
ganization within the meaning of Section 2 ( 5) of the Act.
3. By interrogating employees concerning their union sympathies,
and how they intended to vote in an election , urging surveillance of
union activities with promises of benefits for so doing , and threatening
employees with discharge for voting for the Union , the Respondent
interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and thereby engaged
a As the Trial Examiner did not base his credibility findings on Gant 's demeanor, and
did not otherwise explicate his failure to credit Gant, the rule of Standard Dry Wall
Products, Inc, 91 NLRB 544, presents no obstacle to a reversal of such credibility find-
ings. See Jackson Maintenance Corporation, 126 NLRB 115 ; M & S Company, Inc.,
108 NLRB 1193
3 The General Counsel excepts to the Trial Examiner's failure to credit Gant's testi-
mony as to a coercive statement made to him by Merryman However, as Merryman is
not shown to be a supervisor, we find no violation of Section 8(a) (1) of the Act in any
threat he may have made to Gant
While the General Counsel also contends that the Trial Examiner should have credited
the testimony of Gurka concerning alleged coercive statements made to him by Borgfeld,
we are precluded from relying on such statements as the record does not show that
Borgfeld was a supervisor , and the testimony as to Borgfeld ' s report of a conversation
with Daggett is, in any event, hearsay as to what Daggett said.
ALLIED CHAIN LINK FENCE COMPANY 611
in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cecil J. Daggett,
George Kraft, Joe W. King, Lewis Carriere, William Rote, Paul
Ecenia, W. F. Trent, and Roy Kraft d/b/a Allied Chain Link Fence
Company, Houston, Texas, their agents, successors, and aissigns, shall :
1. Cease and desist from :
(a) Interrogating employees concerning their union sympathies, or
as to how they intend to vote in an election, in a manner constituting
interference, coercion, or restraint, urging surveillance of union activi-
ties with promises of benefits for so doing, and threatening employees
with discharge for voting for the Union.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form, join, or assist Shopmen's Local 694 of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities
for purposes of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Houston, Texas, copies of the notice attached
hereto marked "Appendix." 4 Copies of said notice, to be furnished
by the Regional Director for the Twenty-third Region, shall, after
being duly signed by an authorized representative of .Allied Chain
Link Fence Company, be posted by it immediately upon receipt there-
of, and maintained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
such notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violation of Section 8 (a) (3) and (1) of
the Act in respects other than those herein found.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate employees concerning their union
sympathies, or how they intend to vote in an election, in a manner
constituting interference, coercion, or restraint; urge surveillance
of union activities with promises of benefit for so doing; or
threaten discharge of employees for voting for a union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist Shopmen's Local 694 of the
International Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
All our employees are free to become, remain, or refrain from becom-
ing or remaining members of the above-named Union or any other
labor organization.
ALLIED CHAIN LINK FENCE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case involves alleged violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended ( 61 Stat. 163; 29 U .S.C. Supp . I, Sec. 151 et seq.),
and arises under Section 10(b) of the Act.
The complaint , issued against Allied Chain Link Fence Company , Respondent
herein , on March 16 , 1959 , was amended on April 16 , 1959 . It was further amended
in a minor respect on April 29 , 1959. It is based upon a charge dated November 14,
1958 , a first amended charge dated January 16, 1959 , and a second amended charge
dated March 10, 1959 , each filed on behalf of Shopmen 's Local 694 of the inter-
national Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO
ALLIED CHAIN LINK FENCE COMPANY 613
(hereinafter sometimes called Local 694 or the Union). The complaint, as
amended, and the allegations thereof, are sufficient within the meaning of the
6-month limitation of time provision contained in Section 10(b). Timely answers
were filed on behalf of the Respondent to the complaint and the amendment thereto,
which effectively deny substantive violations of the Act.
The complaint as amended alleges certain discriminatory discharges of employees
because they joined or assisted the Union or engaged in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection: two on
October 7, one on October 15, one on October 18, and two on October 22, 1958
Discrimination against another employee for the same reason is alleged because the
Respondent on or about October 1, 1958, refused him a paid vacation. Conduct
of the Respondent constituting unfair labor practices in the form of interference,
intimidation, and coercion is alleged, including interrogation concerning how certain
employees intended to vote in a Board-conducted representation election, and interro-
gation of employees after the election as to which of Respondent's employees had
voted for union representation, and threats made to employees as to what would
happen should the Union become their representative for the purposes of collective
bargaining.
On the issues drawn by the complaint as amended and the answers, this case came
on to be heard before the duly designated Trial Examiner, pursuant to notice, at
Houston, Texas, on May 4, 1959, the hearing being closed on May 6. At the hear-
ing the General Counsel, the Respondent, and the Charging Party were represented
by counsel, and participated in the hearing. Full opportunity was afforded each
party to be heard, to introduce evidence relevant to the issues, to argue orally
upon the record, and to file proposed findings of fact and conclusions of law and
to file briefs.
Prior to the hearing, the Chief Trial Examiner referred to the Trial Examiner a
motion theretofore filed by the Respondent to dismiss the complaint as amended
because of the failure of an officer of Local 694 to file a non^Communist affidavit
as required by Section 9(h) of the Act. The motion to dismiss the complaint was
denied by an order entered May 1, 1959, on the pleadings and the moving papers,
on the ground that the question was one for administrative determination and not
one to be decided in an unfair labor practice proceeding, under Compliance Status
of International Brotherhood of Boilermakers et al., 123 NLRB 492. At the hear-
ing, the Respondent renewed the motion, urging that "the charge should not have
been processed and no complaint should have been issued because an officer of
Local 694, the charging party, has not complied with Section 9(h). It
appeared at the hearing, after examination of certain documents not noticed by the
Trial Examiner on prior disposition of the motion, that the question was litigable
and outside of 123 NLRB 492. Therefore testimony was taken to determine
whether James W. Stamps, a special representative of the International Association
,of Bridge, Structural and Ornamental Iron Workers, during the times material
hereto, was an officer of Local 694. Upon consideration of facts adduced at hearing,
the Trial Examiner now determines that under the constitution of the parent body
of Local 694 Stamps was not an officer of Local 694, although as a special repre-
sentative of the parent body he performed duties which might well have been
undertaken by a duly elected officer. In making this determination, reliance is
placed upon N.L.R.B. v. Highland Park Manufacturing Company, 341 U.S. 322,
Shoreline Enterprise of America, Inc. v. N L R.B , 262 F. 2d 933 (C.A. 5), and
Shoreline Enterprises of America, Inc., 124 NLRB 158.
Upon the entire record in this case, from his observation of the witnesses, and
after careful consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT COMPANY
Allied Chain Link Fence Company, the Respondent herein, is and has been
at all times material hereto, a partnership composed of Cecil J. Daggett, George
Kruft, Joe W. King, Lewis Carriere, William Rote. Paul Ecenia, W. F. Trent, and
Roy Kruft doing business as Allied Chain Link Fence Company by virtue of the
laws of the State of Texas. This partnership, during the times material hereto,
maintained its principal office and manufacturing facility at 7001 Cavalcade in the
city of Houston, Texas, and now is and has been at all times mentioned herein
continuously engaged at said place of business, its plant, in the manufacture of chain
link fences and related products; in the course and conduct of its business operations
at the aforesaid plant during the 12-month period immediately preceding the filing
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint herein, this period being representative of material times insofar
as this case is concerned, has shipped in interstate commerce to points located out-
side the State of Texas, chain link fences and related materials valued at more than
$50,000; and during the same period of time, the Respondent partnership has pur-
chased raw materials, equipment, and supplies, which have been shipped directly
to the Respondent partnership from points located outside the State of Texas,
valued at more than $500,000.
II. THE LABOR ORGANIZATION INVOLVED
Shopmen's Local 694 of the International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
Sometime in the spring of the year 1958, probably in April, the Union undertook
an organizational campaign to enlist certain employees of the Respondent as mem-
bers of Local 694. On August 22, 1958, a petition for election to determine whether
the employees in a designated unit desired to be represented by the Union was filed
by the Union. An election was held on September 30, 1958. A majority of the
eligible voters, not counting those challenged, voted against the Union. Case No.
39-RC-1291 (unpublished).
A. Alleged discriminatory discharges
The testimony of each of the individuals alleged to have been discharged for
union adherence was so muddled and confused that the Trial Examiner was impelled
to state, near the end of the hearing, that except for the requirements of the Act
and the Rules of the Board that a written Intermediate Report be filed, he would
be inclined to dismiss the complaint in its entirety for lack of proof, and further
said that in his Intermediate Report he intended to recommend dismissal of each
alleged Section 8(a)(3) violation. Now, having had the benefit of a careful reading
of the written transcript of the record, after hearing and observing the several
witnesses called by counsel for the General Counsel, he is of the same view. Instead
of some of the usual questions of credibility to be considered in this sort of case,
testimony in the way of statements and explanations, together with the behavior of
witnesses, have had to be considered. Taking into account the fact that the witnesses
mentioned are not too well versed in use of language, nevertheless the many con-
flicting statements, apparent failure of memory, and obvious lack of understanding
of the charges brought on their behalf, impel the Trial Examiner to find, on the
evidence summarized below, that the allegations of the complaint are not supported
by competent or credible testimony:
1. Alex Gurka
Prior to his layoff on October 22, 1958, Gurka had been steadily employed by
the Respondent for about 81/z years; his layoff or discharge was attributed by the
Respondent to lack of immediate work. Gurka testified that he signed a union
authorization card and voted for the Union in the election; that he had been advised
by Borgfeld, his foreman, that Daggett, one of the partners, had said that the shop
would close down if the Union came in; that Borgfeld told him that they were laying
off the whole night shift (where Gurka was working); and that when Gurka asked
Borgfeld if it was because of the Union, Borgfeld said "Yes, I think so." Gurka
thought that the Company knew he voted for the Union because Meche, another
employee, was a union observer and while Meche challenged the vote of another
employee he did not challenge Gurka when he appeared to vote. Further, concern-
ing the discharge of Gurka and other employees mentioned below, the General
Counsel attempted to establish that when production was curtailed because of a steel
strike or a seasonal slowdown it was not the policy of the Company to lay off or
discharge older employees, but that on the contrary the Company's policy in such
situation was to reduce the number of hours worked by these employees. On the
other side of the case, Gurka testified that he had not been active in helping the
Union before the election and had nothing to do with the union organizing campaign;
that no one from the Company knew that he had signed a union authorization card
and no one knew how he voted in the election; that no one employed by the Com-
pany, so far as he knew, was advised whether he was for or against the Union; that
no company representative had talked to him about the Union's efforts to organize
the employees; and that he had talked about the Union only to one other employee
ALLIED CHAIN LINK FENCE COMPANY 615
who had asked him how he was going to vote in the election . Gurka said that he
was laid off, together with other employees on the night crew , and that he was not,
he thought , singled out for layoff.
2. Robert Brown
With respect to the testimony of Brown , counsel for the General Counsel obviously
was surprised at the hearing to responses given by Brown to a number of questions
put to that witness . He testified that G. B. (Billy ) Drummond , his foreman, had
asked him, prior to the time that Brown is alleged to have been laid off or discharged,
if Brown knew anything about the Union and that he (Brown ) had told Drummond
that he knew no more than what he had heard; that Drummond had told him, a
few days later , that he was for the Union , and that after the election Drummond
told him that he wanted to know who the men were that voted for the Union. On
cross-examination , Brown became so hopelessly confused that the Trial Examiner
refused to hear him further.
3. Lewis Ross
Ross was first employed by the Respondent in 1956 . According to his testimony
he signed a union authorization card and was in favor of the Union ; subsequent,
he said, to the signing of the card Drummond had told Robert Brown that
he knew Ross was for the Union ; that Ross had been advised by Drummond prior
to the election that he would have to get some "walking shoes ," if the Union came
in; and that Ross was laid off about a week after the election by Drummond and
told that "it was one of those things ." It was shown that two employees with less ex-
perience than Ross were retained to operate two wire weaving machines whereas
Ross was capable of operating the two machines at the same time and repairing the
machines if necessary. On cross-examination , Ross said that he did not remember
telling Drummond how he felt about the Union; that Drummond did not know so
far as he knew that he had signed a union card or had gone to a union meeting, or
that Drummond knew he was interested in the Union; and that no one in a super-
visory capacity, so far as he knew , had knowledge of any activity on his part in
connection with the organizing campaign of the Union . About a week after the
election Drummond advised him that he was being laid off together with other
members of the night crew.
4. Charlie Gant
Gant, who was laid off on October 7, 1958 , about a week after the election, had
been employed by the Company for approximately 41h years; had been regarded
as a good worker and had never been laid off during a slack period ; and although
he generally worked in the foundry department he, with more or less frequency,
had been transferred to work short periods in the unloading of boxcars or other
common labor work. On direct examination he testified that he had signed a union
authorization card.
Gant testified that he was questioned by Carl Hansen, his foreman , as to what he
thought about the Union sometime prior to the election ; that Jack Merryman, de-
scribed as foreman of the yard gang, told him that he was going to learn how not
to sign things he did not know about; that "they" were going to find out who voted for
the Union and lay them off ; and that after the election Drummond told him that
they were going to lay him off because he voted for the Union. Gant also testified
that he did not talk to anyone about the Union because he did not want to get
involved and that when other employees (Merryman and another ) asked him to
meet them to talk about the Union he refused so to do ; and that so far as he knew
Stamps and he were the only ones who had knowledge of his signing the union card.
The only credible part of Gant' s testimony seems to be that he told Hansen at one
time or another that he was going to vote in the election but that he did not know
which way he was going to vote . Hansen told him after the election that he was
going to be laid off because of lack of work and, according to Gant, Hansen said
nothing about the Union at the time of this layoff. As the record showed at the
time, Gant was laid off at or near the same time as other employees.
In the case of Gant, it may be that the Trial Examiner is mistaken in refusing to
accept the inference that his layoff can be charged to his interest in the Union.
However, the Trial Examiner cannot in good conscience extend the inference that far.
5. Robert Perry
Robert Perry, employed by the Respondent for about 41h years, worked under
Borgfeld who directed his work and who had the right to request a raise for Perry
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and others said to have been granted to Perry before his discharge. Perry signed
the union authorization card and according to his testimony voted for the Union in
the Board election. According to him about 2 days prior to the election Borgfeld
asked him about the Union and inquired how he was going to vote and also asked
him what he thought about the Union, to which Perry said he replied he thought
it was a good thing. At another time, according to Perry, Borgfeld told him that the
reason a lot of people would not vote for the Union was that they were afraid that if
they did they would not get their Christmas bonus.
On his own testimony, Perry had worked with Borgfeld for a number of years;
he did not recaill telling Borgfeld that he had signed a union card and that the only
thing he did in support of the Union was to sign a union authorization card; and
that about a week before the election Borgfeld asked him how he was going to vote
and Perry told Borgfeld he did not know but did say that he thought the Union was
"a good thing." Perry was laid off with all except three of the employees on the
night crew who were transferred to the day crew. According to his testimony, no
one to the day of hearing knew he had voted in the election.
On the testimony of Perry, both direct examination and cross-examination, it
cannot be found as a matter of fact that he was intimidated or coerced or interfered
with in connection with his interest in union -activities.
6. Jewel Taylor
Taylor was employed by the Respondent in 1958, for approximately 3 years, in
the foundry department under Hansen, the foreman. He testified that he signed a
union authorization card and was an active union adherent and that several meetings
attended by other employees were held at his house. According to him he rode
with Hansen from work to home or home to work and that Hansen had discussed
the Union with him. Hansen asked him if he thought that he would make as much
money when the Union came in as he was then making and advised him that the
Company would not be able to pay time and a half if it had to recognize the Union;
that when notices of the Board election were received Hansen brought one to
Taylor and pointed out to him the place where he should vote on the ballot. The
election having been held, according to Taylor, an employee asked him if he knew
why he was only making 30 hours a week while the rest were making 60 hours;
that on October 15, 1958, when Taylor asked Hansen for a vacation of 1 week,
and obtained it, and after he returned, he was told by Hansen that there had been
layoffs and that Taylor had no job.
In fact, Taylor did not himself sign a union authorization card but it was signed
for him by his sister; four or more employees met at his house at that time to
discuss whether or not the Union would be of assistance to them; thereafter he told
no one that he had signed a union card, and never talked for or against or indicated
that he was active in behalf of the Union. On cross-examination he testified that
Hansen had never asked him about his interest in the Union except that on one
occasion Hansen asked him whether he thought he would make as much money
if the Union won the election as he was making at the time. He said that Hansen
told him at the time he was laid off that when business picked up he would call
Taylor back to work, some other employees also having been laid off from the
foundry department.
7. Irvin Joseph Meche
The complaint herein alleges that the Respondent "did on or about October 1,
1958, discriminate against I. J. Meche by refusing to him a 2 week paid vacation"
in violation of Section 8 (a) (1) and (3) of the Act.
Meche was first employed by the Respondent in the year 1955 as a coremaker and
subsequently, in about the summer of 1957, became a wire drawing machine operator
at which time his immediate supervisor was Foreman Drummond. According to
Meche, when he first reported to Drummond, the latter told him that he would
give him a 1-week vacation for the first year's work and 2 weeks' vacation after 2
years' service. During his employment between 1955 and 1958, Meche had not
received a paid vacation except that he did receive 1 week off with pay at Christmas
1957. Meche was the recipient of a Christmas bonus in December 1958. Accord-
ing to the testimony of Meche, he did not know of any other employee who had
less than 3 years' employment with the Company who had received a paid vacation;
but that he was annoyed because one Lane, who had been with the Company for
at least as long as Meche, received a 2-week vacation at about the time Meche
received his bonus in December 1958. Meche voluntarily left the employ of Re-
spondent in January 1959, without notice. On his failure to report for work,
Drummond telephoned him and asked him what had happened and, according to
ALLIED CHAIN LINK FENCE COMPANY 617
Meche, "I told him I had another job and he told me to go ahead and work there
for a couple of weeks and if I didn't like it to come back and he would give me a
job."
Meche had signed a union authorization card in June and was apparently in favor
of the Union. He served as a union observer at the election in September. He
testified that Drummond, who was a working foreman (but who was stipulated at
the hearing to have been during the times material hereto a supervisor), worked side
by side with Meche repairing machines and performing other duties; that he had
day-to-day conversations with Drummond; that Drummond had asked him after the
election whether he had signed an authorization card; that he told Drummond that
he had not signed the card. Meche said that Drummond talked to him day after
day about the Union and at one time told him "if the Union goes through they
would cut the hours down to where we wouldn't make anything." Meche said that
he had not actively supported the Union, but that he did sign an authorization card,
did give the names of persons interested in the Union to Stamps at night, and did
act as the union observer at the election. He said that Drummond had told him
that he would like to have names of employees who had signed cards for the Union
but that he did not supply Drummond with this information. Meche said that
Drummond at one time told him it would be worth $1,000 for him (Drummond)
"if he knew what I knew about the Union and the guys that signed cards.. .
With respect to his request for a paid vacation made to Drummond during December
1958, Meche said that Drummond refused the vacation, stating ". . . no, you tried
to mess me up." According to Meche, Drummond had previously said that he was
a good worker and therefore he felt that the comment of Drummond about "messing
him up" could only refer to the union interest displayed by Meche and his failure to
disclose to Drummond the names of other employees who were in favor of the
Union.
Daggett during these times was a managing partner and Drummond was subordi-
nate to him. Although Meche testified, without contradiction, that Drummond had
promised him the vacation claimed to have been kept from him, it does not appear
anywhere on the record that Drummond had the authority to set or vary company
policy with respect to the granting of vacations. Probably because Meche testified
that the only employee he knew who obtained a 2-week vacation was Lane, counsel
for Respondent did not put in affirmative evidence concerning policy or practice of
the Company in regard to vacations, nor did the General Counsel undertake to fill
this gap. Consequently, so far as the record herein shows, the claim of Meche
for the paid 2-week vacation at Christmas during the year 1958 for such vacation,
was on the basis of an oral statement by Drummond and his affirmative statement
that he was given a bonus of approximately $200 at that time; that he quit his job
without notice in a fit of pique in January, the following month. On the facts dis-
closed, the Trial Examiner does not consider them sufficient to sustain the allega-
tions of the complaint in respect of denial of a vacation to Meche because of his
union activities.
B. Alleged independent 8(a) (1) violations
In support of the allegations of the complaint that the Respondent partnership
interrogated its employees concerning their union affiliation, and threatened and
warned some of its employees to refrain from assisting or becoming members of
the Union, the General Counsel questioned witnesses, most of whose names have
been mentioned above.
Gant said that shortly before the union election held in September 1958, Carl
Hansen, a foreman in the foundry, inquired of him what he thought about union
organizing; that Merryman, the yard foreman, told him that he was going to learn
how not to sign things he did not know about; and that the Company was going
to find out who voted for the Union and lay them off. Meche testified that Fore-
man Drummond asked him whether he had signed a union card, land told him that
if the employees were represented by a union Daggett would close the establishment;
and that on another occasion Drummond said that if the Union was recognized
the Company would cut hours down so that the employees would suffer loss of
earnings. Other remarks alleged by Meche to have been made to him by Drummond
are mentioned above.
Brown testified that prior to the election Drummond asked him what he knew
about the Union, and later told Brown that he knew that Brown and Lewis Ross
were for .the Union; that after the election Drummond told him that he wanted to
know who the 39 men were who had voted for the Union. Ross said that Drummond
talked to him and other employees frequently prior to the election; that Drummond
asked him if he had signed an authorization card and also told Ross that he should
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buy "some walking shoes"; that Drummond told him further that if the Union was
successful then Daggett would close the establishment. He said that Drummond
brought out the official notice of election and indicated that the men should vote
for the Company.
Gurka said that about 3 weeks before the election, at about 9:30 or 10 p.m.,
Daggett came out to the plant and while he was there, talked to Walter Borgfeld,
the foreman in charge of the galvanizing department, and that thereafter Borgfeld
told Gurka that Daggett had asked him if he was ready to walk the picket line and
when Borgfeld asked "Why?," Daggett stated that "If the Union gets in I will close
the shop."
Perry testified that about a week before the election Foreman Borgfeld asked
him what he thought about the Union, that Perry told Borgfeld he thought it would
be a good thing, and that Borgfeld told Perry that the reason a lot of the people
would not vote for the Union would be that they were apprehensive that they would
not receive their vacation checks and Christmas bonuses.
Gurka, on his own testimony, was not active in assisting the Union before the
election, had nothing to do with the union organizing campaign, and no one from
the Company knew that he had signed a union authorization card or knew how he
had voted in the election; no one from the Company talked to him about the
Union's organizing campaign except one Scarborough, a welder, who might have
been Borgfeld so far as the witness knew. On cross-examination, Gurka testified
that he was laid off with 10 or 11 other men on the night crew, and was not singled
out. Apparently this layoff, so far as the record shows, was not an unusual situation
during that season (October and November) of the year.
The testimony of Brown, Ross, Gurka, Perry, and Taylor was, as pointed out
above, conflicting and so unsatisfactory that no real findings of fact can be made
on the basis of the testimony of any of these employees.
Andrew Lee Adderson was called as a witness for the General Counsel to support
an amendment to the complaint alleging that Borgfeld, as agent of the Respondent,
inquired substantially: "Are you going to vote for the Union?" On direct examina-
tion Adderson said,
I was up at the clock and he [Borgfeld] also came up and he asked me, he
said, "Well, it looks like it's going to be an election," and I said, "Yes, it does,"
and he said, "Well, I don't know if it will go but it looks like it might not go
through, that's the way I feel." And I said "if it goes through its all right and
if it doesn't go through it's all right with me." I said, "One way or the other
it doesnt make me no difference," and that's all we said at the present so he
turned and walked away and I went back to my department.
Under further questioning, Adderson denied that Borgfeld had asked him directly
how he was going to vote in the election.
The contention of the General Counsel that the Respondent, after the filing of the
petition for an election on August 22, 1958, started a campaign of interrogation of
its employees to find out which of them were for the Union, and engaged in an
effort to discourage the employees from voting for the Union in that election, fails
for lack of sufficient proof. As above stated the Trial Examiner has no confidence
in the testimony, conflicting, vague, and indefinite, given by the witnesses above
named who testified in support of the allegations of the complaint.
The interrogation attributed to representatives of the Respondent, standing alone,
would indicate on the first relating thereof by witnesses that the General Counsel
had made out a prima facie case. With respect to each of these witnesses, the Trial
Examiner feels that after their direct testimony (which even at times was confusing)
and on cross-examination and redirect examination, and in whole context, the evi-
dence presented in support of alleged discrimination, interference, or other acts con-
stituting unfair labor practices is insufficient to support the allegations of the
complaint.
On the basis of the foregoing findings of fact, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. The Respondent, Allied Chain Link Fence Company, is and at all times
material hereto has been engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Shopmen's Local 694 of the International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, is and during the times material hereto was
a labor organization within ,the meaning of Section 2(5) of the Act.
REICHHOLD CHEMICALS, INC. 619
3. The Respondent above named has not now and has not been engaged in
violation of the National Labor Relations Act, as amended, as alleged in the
complaint as amended.
The following proposed conclusions of law, submitted on behalf of the Respondent,
are accepted by the Trial Examiner, and adopted as his own:
(2) That Respondent has not discriminated in regard to the hire, tenure or
any term or condition of the employment of Irvin Joseph Meche, Alex Gurka,
Robert Brown, Lewis Ross, Charlie Gant, Robert Perry and Jewel Taylor, in
violation of Section 8(a) (3) of the Act.
(3) That Respondent has not interfered with, restrained or coerced its
employees in the exercise of rights, guaranteed to them by Section 7 of the
Act, in violation of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
Reichhold Chemicals , Inc. and International Union of Operat-
ing Engineers, Local 465, AFL-CIO and International Chemi-
cal Workers Union , AFL-CIO and General Drivers, Ware-
housemen & Helpers, Local 509, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Petitioners. Cases Nos. 11-RC-1294,
11-RC-1300, and 11-RC-1301. February 12, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held' before
James R. Webster, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
The Employer has no bargaining history at its Hampton, South
Carolina, plant, involved herein. International Union of Operating
Engineers, Local 465, AFL-CIO, herein called Operating Engineers,
seeks to represent a unit of all production and maintenance employees
of the Employer at its Hampton, South Carolina, plant, including
plant operators, helpers, and laborers, but excluding truckdrivers,
office clericals, chemists, laboratory employees, guards, watchmen, and
3 The captioned cases were consolidated for bearing by order of the Regional Director
dated November 2, 1959.
126 NLRB No. 76.