Apex Toledo Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1952

101 N.L.R.B. 807 (N.L.R.B. 1952)

APEX TOLEDO CORPORATION 807
WE WILL NOT interrogate our employees concerning their union affiliation,
activities, or sympathies, threaten them with discharge, reprisal, or economic
loss because of their union affiliations, activities, or sympathies, or promise
them economic benefits in order to discourage their union membership or
activity.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or
assist UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO, or any
,other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
,condition of employment, as authorized in Section 8 (a) (3) of the National
Labor Relations Act.
WE WILL offer to Mearle L. Smart immediate and full reinstatement to his
former or substantially equivalent position without prejudice to seniority or
other rights and privileges previously enjoyed, and make him whole for any
loss of pay suffered as a result of discrimination against him.
All our employees are free to become, or refrain from becoming, members of the
above-named union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8 (a) (3) of
the Act. We will not discriminate against any employee because of membership
in or activity on behalf of any such labor organization.
COLD SPRING GRANITE 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.
APEX TOLEDO CORPORATION and LOCAL 12, INTERNATIONAL UNION,
UNITED AUTOMOBILE , AnicRAFr & AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA , CIO. Case No. 8-CA-546. December 8, 1952.
Decision and Order
On April 28, 1952, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and sup-
porting briefs.'
1 The Respondent's request for oral argument is hereby denied , as the record , including
the exceptions and briefs, in our opinion, adequately presents the issues and the positions
of the parties.
101 NLRB No. 146.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 2 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 Intermedi-
ate Report, the Respondent's and the General Counsel's exceptions and
briefs, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
following modifications and additions.3
1. We find, as did the Trial Examiner, and as set forth in detail in
the Intermediate Report, that the Respondent refused to bargain col-
lectively with the Union, as the exclusive representative of its em-
ployees in an appropriate unit, and thereby violated Section 8 (a) (5)
and (1) of the Act. On May 1, 1951, 11 of Respondent's 12 employees
in the appropriate unit 4 signed cards authorizing the Union to repre-
sent them for purposes of collective bargaining. By letter dated May
5, 1951, James Crowley, international representative of the Union,
advised the Respondent that a majority of its employees had desig-
nated the Union as their exclusive collective bargaining representative
and requested that the Respondent recognize and negotiate with the
Union. On May 8, 1951, upon receipt of this letter, Thomas, Respond-
ent's president, approached employees Mertz and Groff, accused them
of being the "instigators" of the letter and threatened to close the
plant before he would "have a union in the shop." 5 At this time Groff
told Thomas, "Well, we are no more the instigators than 11 of us were;
we all went up and signed up at the union at the same time." On or
about May 12, Crowley again requested recognition when he met with
Thomas at the plant. Thomas, however, refused to recognize the
Union, asserting that Crowley had induced the employees to join the
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated itd
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Styles and Peterson].
S Supplementing and modifying the Trial Examiner's findings concerning the volume of
the Respondent' s business , we find that, as the Respondent stipulated, the Respondent
performs services in excess of $125,000 per annum for other companies, each of which ships
materials in excess of $25,000 outside the State of Ohio.
The Intermediate Report contains certain typographical or inadvertent errors, none of
which affects the Trial Examiner' s ultimate findings or our concurrence therein. These
errors are corrected as follows : (1) The citation for Everett Van Eleeck & Company should
be 88 NLRB 785; (2) the prehearing conference on the representation petition filed by the
Union was scheduled for, and took place on, June 15, 1951, and not on June 12, as found
by the Trial Examiner at one point in his report; ( 3) employee Mertz testified that Groff
told the Respondent's president, Thomas, that " eleven members went . . . and joined the
Union that day." (The Intermediate Report states that Mertz attributed this statement
to Thomas) ; (4) contrary to the statement in the "Conclusion" of the Intermediate
Report, Thomas did not apologize to both Mertz and Groff a few hours after his "outburst"
over Crowley's letter of May 5, but, as found elsewhere in the Report, he apologized to Mertz
alone a few days after the outburst.
4In accordance with our customary policy, and contrary to the finding of the Trial
Examiner , we shall exclude Leo Schlagheck from the unit, because, as Thomas' son -in-law,
we believe his interests are allied with those of management . General Finance Corporation,
88 NLRB 1031.
6 Like the Trial Examiner , we find that this statement was coercive . We find, also,
that the Respondent thereby violated Section 8 (a) (1) of the Act.
APEX TOLEDO CORPORATION 809
Union by selling them a "bill of goods." 6 At no time did Thomas
question the fact that a majority of his employees had authorized the
Union to represent them.7
On May 18, 1951, the Union filed a representation petition with the
Board alleging that it represented 11 of Respondent's 12 hourly paid
employees. On June 5, the Board's Regional Director advised the
Respondent that a joint conference on the petition would take place on
June 15. On June 12, a few days prior to the scheduled conference,
Thomas called a meeting of his employees and conducted a private poll
to determine whether they wished to be represented by the Union.'
After this poll, which resulted in a vote adverse to the Union, Thomas
stated that he would see what he could do about granting a 5-cent per
hour wage increase.' On the same day, the Respondent instructed its
employees to sign a petition, in which they disclaimed any desire to be
represented by the Union.
When Crowley, at the June 15 joint conference, learned of the fore-
going private poll and the petition, renouncing representation by the
Union, he announced that he would withdraw the Union's petition
for certification," and the meeting broke up.
In view of the foregoing, as more fully detailed in the Intermediate
Report, and upon the entire record, we find, like the Trial Examiner,
that the Respondent on or about May 12, 1951,11 and at all times there-
after, refused to bargain with the Union because of its desire to avoid
its statutory obligation and hence violated Section 8 (a) (5) and (1)
of the Act.
2. The Trial Examiner found, and we agree, that the Respondent
discharged Groff on August 29, 1951, because of his union activity,
° We find, in agreement with the Trial Examiner, that the Union did not obtain its
majority by improper means. Moreover, the record does not show any basis for finding
that Thomas in good faith believed that this was the case.
' We find it unnecessary to, and we do not, pass upon the Trial Examiner's finding that
for Crowley to have offered to show the application cards to Thomas would have been
a "useless gesture."
s We agree with the Trial Examiner's finding that the Respondent's conduct of a private
election of its employees was per se violative of the Act. In any event, on the facts of
this case it is clear that such conduct was unlawful, occurring as it did in the context of
Respondent's other unfair labor practices. N. L. R. B. v. Kingston, 172 F. 2d 771 (C. A. 6),
is therefore distinguishable on its facts.
° We find that this promise of a wage increase, made in the course of Respondent 's efforts
to defeat the organizational activities of the Union, violated Section 8 (a) (1) of the
Act. See N. L. R. B. v. Bailey Co., 180 F. 2d 278 (C. A. 6). Contrary to the Respondent's
contentions, we find, upon the entire record, that such an increase would not have fallen
within any pattern established by the Respondent of granting increases in the spring of
each year.
10 The Petition was, in fact, later withdrawn.
n This is the date of Thomas' first conference with Crowley, at which he for the first
time communicated to Crowley his unwillingness to recognize the Union. In this respect,
we modify the Trial Examiner's finding (in his "Conclusions of Law") that the refusal
to bargain originated on or about May 8, 1951, the date that Thomas received Crowley's
request for recognition.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby violating Section 8 (a) (3) and (1) of the Act.12 On Sep-
tember 7, 1951, when Groff returned to the plant to receive his final
check, he informed Thomas, Respondent's president, that he would
like his old job back. Thomas stated that he would discuss the matter
with Lee Jude, plant superintendent. On the following day, Jude
told Groff that he could return to work the following Monday "as if
nothing happened, but don't be too active in the union." (Emphasis
supplied.) This statement was calculated to put Groff on notice,
particularly in view of his recent discriminatory discharge, that in
order to remain in the Respondent's employ he would have to dis-
continue his union activity. Accordingly, we find that Jude's warning
violated Section 8 (a) (1) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Apex Toledo Corporation,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing, upon request, to bargain collectively with Inter-
national Union, United Automobile, Aircraft & Agricultural Imple-
ment Workers of America, CIO, and Local 12, International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America, CIO, as the exclusive representative of all hourly paid
employees, excluding Leo Schlagheck, office clerical employees, guards,
professional employees, and supervisors as defined in the Act.
(b) Discouraging membership in International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
CIO, and Local 12, International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, CIO, or in any
other labor organization of their employees by discriminatorily dis-
charging or refusing to reinstate any of their employees, or by dis-
criminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment.
(c) Conducting private elections among its employees to determine
their sentiment for or against the Union; directing its employees to
sign petitions binding said employees to the results of said private
polls; advising its employees that it would close the plant before it
' The Trial Examiner also found that the discharge of Groff did not violate Section 8
(a) (4) of the Act. The General Counsel excepts to this finding. As the policies of the
Act will as well be effectuated by a remedial order based upon a limited finding that the
Respondent in this case violated Section 8 ( a) (3) and (1) of the Act, we find it unnecessary
to determine whether or not the discharge of Groff also violated Section 8 (a) (4).
Accordingly, we do not pass upon the Trial Examiner's findings and recommendation
respecting the 8 (a) (4) allegation, but we shall, nevertheless, dismiss the complaint
to that extent. See Clearwater Finishing Company, 100 NLRB 1473.
APEX TOLEDO CORPORATION 811
would have the Union come in; threatening its employees with loss
of work if the Union came in; warning and directing its employees
not to be active in or assist the Union ; and promising its employees
wage increases in order to discourage union organization.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
CIO, and Local 12, International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole Harold Groff for any loss of pay he may have
suffered by reason of its discrimination against him as herein found
above, in the manner provided in the section of the Intermediate
Report entitled "The Remedy."
(b) Upon request, bargain collectively with International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America, CIO, and Local 12, International Union, United Automo-
bile, Aircraft & Agricultural Implement Workers of America, CIO,
as the exclusive representative within the aforesaid appropriate unit
with respect to rates of pay, wages, hours of employment, or other
conditions of employment.
(c) Post at its plant in Toledo, Ohio, copies of the notice attached
hereto and marked "Appendix A." 13 Copies of such notice, to be
furnished by the Regional Director for the Eighth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Eighth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
n In the event that this Order is enforced by a decree of the 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 Slates Court of Appeals , Enforcing an Order."
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the allegations in the complaint charging
a violation of Section 8 (a) (4) of the Act and the allegation that the
Respondent "refused to permit the shop chairman and shop committee
of the Union to attend an informal conference conducted by the
National Labor Relations Board between the Union and the Company,
on or about June 15, 1951, be dismissed.
Appendix A
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist INTERNATIONAL
UNION7 UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, CIO , and LOCAL 12, INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, CIO, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
WE WILL make whole Harold Groff for any loss of pay suffered
as a result of the discrimination.
WE WILL bargain collectively with the above-named union as
the exclusive representative of all employees in the bargaining
unit described herein with respect to rates of pay, hours of employ-
ment, or other conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement.
The bargaining unit is:
All employees of the Apex Toledo Corporation, Toledo,
Ohio, excluding Leo Schlagheck, office clerical employees,
guards, professional employees, and supervisors as defined
in the Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
APEx TOLEDO CORPORATION,
Employer.
Dated-------------------- By-------------------------------
(Representative ) ( Title)
APEX TOLEDO CORPORATION 813
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
STATEMENT OF THE OASE
Upon a second amended charge filed October 22, 1951 , by Local 12 , Interna-
tional Union , United Automobile , Aircraft & Agricultural Implement Workers
of America , CIO, herein called the Union , the General Counsel of the National
Labor Relations Board; by the Regional Director for the Eighth Region ( Cleve-
land, Ohio ), issued a complaint dated October 24, 1951 , against Apex Toledo
Corporation , Toledo, Ohio , herein called the Respondent , alleging that the
Respondent had engaged in and was engaging in certain unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (3 ), (4), and (5)
of the National Labor Relations Act, 49 Stat. 449, as amended , 61 Stat. 136,
herein called the Act. Copies of the complaint , with copies of the amended
charge and notice of hearing , were duly served upon the Respondent and the
Union.
The complaint alleges in substance that the Respondent : ( 1) From on or about
May 1 , 1951 , to date : ( a) conducted private elections among its employees to
determine their sentiment for or against the Union ; ( b) directed the employees
to sign a petition binding said employees to the results of said private polls and
notifying the Board that there was no need for the Board conducting an elec-
tion for the purpose of determining the collective bargaining representative
of the employees ; ( c) advised its employees that it would close the plant before
it would have the Union come in; (d) threatened its employees with loss of
work if the Union came in; (e) warned and directed its employees not to be
active in or assist the Union ; ( f) promised its employees wage increases in
order to discourage Union organization ; and (g ) refused to permit the shop
.chairman and shop committee of the Union to attend an informal conference
conducted by the Board between the Union and the Respondent on or about
June 15, 1951 ;' (2) from on or after May 5, 1951 , to date refused to bargain
collectively with the Union as the exclusive bargaining representative of its
employees in a unit appropriate for the purposes of collective bargaining; (3)
=discharged Harold Groff, a machine operator, on or about August 29, 1951, and
did fail and refuse to reinstate Harold Groff until September 9, 1951 , for the
reason that he joined and assisted the Union and engaged in other concerted
activities for the purpose of collective bargaining and other mutual aid or
protection , and because he had given testimony under the Act; and that by
the foregoing acts and conduct the Respondent thereby engaged in violations of
Sections 8 (a) (1), (3 ), (4), and ( 5) of the Act.
The Respondent on October 31, 1951, duly filed its answer in which it ad-
mitted certain jurisdictional allegations in the complaint , inter alia that It was
engaged in commerce within the meaning of Section 2 (7) of the Act, but
denied that It was engaged In commerce within the meaning of Section 2 (6)
of the Act and also denied the commission of any unfair labor practices.'
I The General Counsel and his representative in this case are referred to herein as the
'General Counsel , the National Labor Relations Board is referred to as the Board.
' The complaint was amended at the hearing herein to include ( g) above.
$ During the course of the hearing herein counsel for the Respondent by way of stipula-
tion amended his answer to the effect that the Respondent was engaged in commerce within
the meaning of Section 2 (6) of the Act.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice a hearing was held at Toledo, Ohio, on November 19, 20,
and 21, 1951, before the undersigned duly designated Trial Examiner. The
General Counsel, the Respondent, and the Union were represented by counsel
and in addition the Union was also relresented by a lay representative. All
parties participated in the hearing and were afforded an opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence per-
taining to the issues.
During the General Counsel's case on surrebuttal he moved to amend the com-
plaint by adding thereto an allegation to the effect that the Respondent violated
Section 8 (a) (1) of the Act by refusing to permit the shop committee and its
chairman to attend a conference between the Union and the Respondent. The
motion was granted without objection. At the same time the Respondent was
granted leave to amend its answer by adding thereto a denial of said allegation.
At the close of the hearing the Respondent moved to dismiss the complaint in
its entirety. The undersigned reserved ruling thereon. It is hereby denied in
part and granted to the extent shown hereinafter. The General Counsel also
moved to conform the pleadings to the proof as regards minor matters such as
names, dates, and the like. The motion was granted without objection. All
parties were given an opportunity to argue orally before the undersigned. Only
the General Counsel chose to do so. The parties were also advised as to their
right to file briefs with the undersigned. Thereafter, counsel for the Respondent
filed a brief with the undersigned who has given it due consideration.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following;
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and the undersigned finds that the
Respondent is a corporation organized under and existing by virtue of the laws
of the State of Ohio with its principal office and place of business in Toledo,
Lucas County, Ohio, where it is engaged as a subcontractor of metal stamping
and shaping operations.
At the hearing herein the parties stipulated that the Respondent from Novem-
ber 1, 1950, to November 1, 1951, received shipments of materials from outside
the State of Ohio in a sum in excess of $125,000, for use in the fabrication of
metal products. These materials were the property of other corporations in
the Toledo, Ohio, area, and were shipped from outside the State directly to the
Respondent's plant in Toledo for fabricating or processing, and upon completion
of these operations, were reshipped to the owners of the material in the Toledo
area, who in turn incorporated the parts into their finished products. The com-
panies referred to above and who actually own the raw material from which the
Respondent machines or processes the parts are the Airway Electric Appliance
Corporation, Electric Auto-Lite Company, and the American Floor Surfacing
Company, all of Toledo, Ohio. The value of the parts machined or processed
by the Respondent and later incorporated into the finished products of the above
companies and which as such are shipped to points outside the State of Ohio
is in excess of $25,000 per year.
The parties further stipulated that the Respondent is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
Upon all of the foregoing the undersigned finds that the Respondent is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
APEX TOLEDO CORPORATION
II. THE LABOR ORGANIZATION INVOLVED
815
Local 12, International Union , United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES °
Foreword
As indicated above the Respondent is engaged in the processing of various
parts for a number of manufacturing plants in the Toledo, Ohio, area. Its
plant is small and at all times material herein had in its employ approximately
15 persons, including office, clerical, and supervisory employees. The officers
of the Respondent are as follows : Lyle Thomas, president and treasurer, Verdi
Thomas [the wife of Lyle Thomas], vice president, and Francis Palmer, secre-
tary. Palmer devotes only a portion of his time to the Respondent's operations.
Mary Ann Schlagheck, daughter of President Thomas, works in the office and
acts as his secretary. Throughout the record (and herein) she is referred to
at times as "Mary Ann." The shop is in charge of Lee Jude, plant superintendent.
President Thomas, in addition to his duties as president and treasurer of the
Respondent, also acts as its salesman, designer, and, with the assistance of Jude
supervises production in the plant.
Thomas, before his association with the Respondent, worked as a tool, die,
and gauge maker for various concerns in the Toledo area. Professionally he is
classed as a "master gauge maker." Before organizing his own company, that is
the Respondent herein, he was employed as plant manager and chief engineer
for the Edison Tool Manufacturing Company, having worked up from toolroom
foreman. Before working for the Edison Company he was employed for a number
of years by the Willys-Overland Company in Toledo.
The Respondent's plant is housed on one floor of a factory building. In
the front are the offices and in the rear the plant proper. Located therein are
the machines used in the processing of its finished products. The machinery
consists of Excello boring machines, milling, drilling, and tapping machines,
lathes, and other machines specially designed to do particular jobs. The ma-
chines are manned by skilled and semiskilled employees. While the employees of
the plant are not required to be journeyman machinists, nevertheless the ma-
chine operators must be able to use precision instruments such as micrometers,
gauges, and the like. Ordinary people without any experience can be trained
to do the work in the shop. Thomas estimated that it would require about 8
months to train an employee to be a good machine operator. The Respondent
employs both men and women. Some of the machines are operated by the men,
some exclusively by women, and some by both sexes. As a general rule the
work load determines who is to operate the machines. There is approximately
a 30-cent per hour differential between the hourly rates paid the men and the
women employees. At the time the events described hereinbelow occurred
the Respondent had in its employ approximately 12 production and maintenance
employees, 7 women and 5 men. One of the employees is Leo Schlagheck, hus-
band of Mary Ann, and hence son-in-law of President Thomas. He is employed
While consideration is given below to such matters as credibility of witnesses and
conflicts in the evidence, for the most part, the findings in this section are made upon
evidence which is undisputed, or is at variance only as to minor details, or are made
without explanation upon the preponderance of the reliable, probative, and substantial
evidence in the record considered as a whole. Where the testimony is highly contradictory
in nature, the conflict will be resolved and findings made thereon.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a tool maker, and in addition makes jigs and fixtures . During the absence
of Superintendent Jude, he is in charge of the plant . There is no substantial
evidence in the record showing that he is a supervisory employee within the mean-
ing of Section 2 (11) of the Act. Moreover, the General Counsel at the hearing
herein made no serious objection to his being included in the unit which the
undersigned finds hereinafter to be appropriate. Consequently the undersigned
finds that Leo Schlagheck is an employee within the meaning of the Act. He
also finds that the mere fact that Schlagheck is the son-in-law of the Respondent's
president is not such a relationship to disqualify him as an "employee" within
the meaning of Section 2 (3) of the Act.
Interference, restracnt , and coercion
For some time prior to May 1, 1951, some of the employees of the Respondent
had discussed amongst themselves the feasibility of organizing a "Union." There
was some dissatisfaction prevalent amongst them at the time, primarily because
of the Respondent's failure to grant them a wage increase which from past ex-
perience they had expected during the spring of the year. Another cause of
their unrest was the wage differential between the male and female employees-
Since the females outnumbered the males and in some instances were doing like
work they expected equal pay. There was no concerted effort on the part of the
employees until the latter part of April 1951. At about that time employee
Robert Mertz in the course of a conversation with Harold Groff, a coworker,
suggested that they get a union to represent them. Mertz informed Groff that he
had looked into the matter and suggested that he get in touch with James Crowley,
international representative of the Union, and see what could be done about
unionizing the employees. Groff agreed to Mertz' suggestion and contacted
Crowley. As a result a meeting between Crowley and the Respondent's em-
ployees was arranged for the night of May 1, 1951. The meeting was to be held
at the Union's hall. In the interim Groff informed the employees concerning the
meeting and urged them to attend it.
The meeting was held as scheduled. All of the production and maintenance
employees attended except two, one of whom was Leo Schlagheck, Thomas' Bon-
in-law. Hence of the 13 employees in the plant, 11 attended the union meeting-
There is some conflict as to what actually transpired at the meeting, but in the
main it is of minor importance in view of the undersigned's ultimate determina-
tion of the issues involved herein.
Crowley's version of what transpired at the meeting was in substance as•
follows. He explained to them the aims and purposes of the Union, and the pro-
cedure of the Board in the conduct of elections. He also explained the duties and
the obligation of the Union, in the event it was selected by secret ballot in a Board
ordered and conducted election as their exclusive bargaining representative, such
as the negotiation and signing of a contract with the Respondent. Crowley then
stated that if the employees were interested in what the Union had to offer them
and were desirous of joining the Union they would signify their intent in this
regard by raising their right hands 5 All present did so. He then passed out
According to the undenied testimony of Ruth Singleton, an employee of the Respondent
at the time the events herein occurred , she asked Crowley to conduct the "election" by
secret ballot instead of by a show of hands as regards their intent to join the Union.
Crowley declined to do so, but at the same time told the employees that a "secret" election
would be conducted by the Board at some future date . There was nothing illegal or
coercive in Crowley's refusal to poll the employees by secret ballot in view of the fact that
the sole purpose of the meeting was to determine whether or not the employees desired to
have the Union
APEX TOLEDO CORPORATION 817
application-for-membership cards and explained the obligation and the printed
matter on the cards. All of the employees present signed cards and paid the $2
initiation fee. They were then obligated by Crowley. Following this ceremony
the employees chose a committee composed of Harold Groff, chairman, Ruth
Singleton , secretary, and Robert Mertz, committeeman.
Crowley's testimony as to what transpired at the meeting on May 1, 1951, was
corroborated by that of Patsy Romero, Harold Groff, and Robert Mertz.
On the other hand Ruth Singleton, one of the employees who attended the meet-
ing, and a witness called on behalf of the Respondent at the hearing herein,
testified that Crowley told the employees in substance that if they didn't join the
Union they would lose their jobs. Otherwise her testimony on the whole corrob-
orated that of Crowley as to what transpired at the meeting.
Louis Kennedy, a witness called by the Respondent, also testified inter alia
that Crowley told the employees present at the meeting that if they didn't join
the Union they would lose their jobs. In explanation of her testimony in this
regard she testified that Crowley said that since the Union represented the
companies that furnished the work for the Respondent that the Union could
or would cause these companies to cease giving any work to the Respondent if
they didn't join the Union.
Crowley on rebuttal emphatically denied making any such statement.
Crowley, though loquacious at times, nevertheless impressed the undersigned
as a truthful and reliable witness. On the other hand Singleton and Kennedy
impressed him as being witnesses who were not fully cooperative in that it was
obvious (to at least the undersigned) that they were either unwilling to give
a full account of what transpired at the meeting in question or were deliberately
withholding testimony which would have clarified the record as to what Crowley
actually told the employees at the time. Particularly Kennedy whose testimony
on both direct and cross-examination is punctuated throughout with that old and
familiar refrain, "I don't remember."
Accordingly the undersigned credits the testimony of Crowley and Romero
as regards what transpired at the meeting of the employees on the night of May 1,
1951, and finds that their testimony in this regard sets forth a true and reasonable
account of what occurred at that time. In the considered opinion of the under-
signed , and he so finds, that the threatening statements attributed to Crowley by
Singleton and Kennedy were part and parcel of his remarks to the employees
who were present at the meeting in answer to a question from the floor as to
what course the Union would take in the event the Respondent refused to sign
a contract with it after it had been selected by the employees as their bargaining
agent in a Board-ordered election, if this occurred it might be necessary to resort
to strike action , which could or would cause trouble in the plant and consequently
the Respondent might lose its contracts with other companies, which of course
would cause the employees to lose their jobs because of no work in the shop.
Patsy Romero's testimony on rebuttal in this regard is in the opinion of the
undersigned a true account of what Crowley actually said at the organizational
meeting described above and is fully credited by the undersigned.
Q. Now, did Mr. Crowley at any time that night say to you and the other
employees that if you people didn't sign for the union or sign union cards,
that he would see that you lost your jobs or your work down at the Apex
Company?
A. The only thing that he said we might lose contracts was after we signed
our cards , and it was after the secret vote was held, that we would lose
them if we were to picket on account of no contracts.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. That if you were on the picket line the company would lose them?
Is that what you mean?
Mr. MAHONEY. I object to these questions as being too leading. He is
practically testifying for the witness there.
Trial Examiner SHAW. That's right. Rephrase the question.
Q. (By Mr. Fusco) What did he say might happen if the company refused
to sign a contract?
A. Well, I already said that. If Mr. Thomas wouldn't sign the contract,
that we would have to strike, or picket, whichever we want to refer to it as,
and therefore the company would lose contracts and of course we would be
out of work.
Trial Examiner SHAW. All right. That answers your question.
Q. Did Mr. Crowley at any time during that meeting say that if the
union didn't get in down there-well, withdraw that.
Mr. Fusco. That is all.
When considered in the light of the record as a whole Crowley' s remarks
amounted to nothing more than the usual "puffing" that accompanies organiza-
tional drives of this kind. The undersigned's finding in this regard is buttressed
by the fact that not a single employee at least up to and including the date of
the hearing herein had seen fit to revoke their designation of the Union as their
bargaining agent or to demand the return of their $2 initiation fee. Again,
another factor that has persuaded the undersigned to find that Crowley did
not resort to threats of reprisal and promises of benefits in his talk to the
employees is the fact that within less than a week he wrote the Respondent for
a conference, and within a reasonable time thereafter filed on May 18, 1951, a
"Petition for Certification of Representation" under the provisions of Section 9
(b) of the Act, with the Regional Office in Cleveland, Ohio. Moreover, witnesses
called by both the General Counsel and the Respondent, and indeed Crowley him-
self, testified that both he and the international union were not particularly
interested in representing the Respondent's employees because the plant was
small and past experience had shown that such plants were difficult to service,
police contracts, settle grievances, and the like.
In view of the foregoing and upon the record as a whole the undersigned finds
that 11 of the Respondent's 13 employees in a unit found appropriate hereinafter
designated the Union as their exclusive bargaining representative on the night of
May 1, 1951, and to date have not formally or otherwise repudiated their action
in this regard. The undersigned further finds, as indicated above, that the
employees selected the Union as their bargaining representative of their own
free will and accord, and that this was done in an atmosphere clear of any
threats of reprisal or promise of benefits on the part of Crowley, the interna-
tional representative of the Union. The undersigned is convinced that Crowley
did not in any manner whatsoever coerce, intimidate, or falsely represent the
Union's position to any of the employees present, and that the language he used
in presenting the Union's position was not by any stretch of the imagination
coercive in character.
While it is true that the Respondent filed no charges against the Union, never-
theless since counsel for the Respondent has raised the above issue in his brief
the undersigned feels that it should be disposed of without delay in view of the
Respondent's defense to the allegation in the complaint as regards its refusal
to bargain with the Union. Of which more anon hereinafter.
Shortly after receiving Crowley's letter, Thomas went into the shop and
walked back to where Robert Mertz and Harold Groff were eating their lunch.
He threw Crowley's letter down on the table and berated them as being the
APEX TOLEDO CORPORATION 819
instigators of the concerted activities of the Respondent 's employees. What
transpired on this occasion is best told in the testimony of Groff, an excerpt of
which is set forth below :
By Mr . Fusco :
Q. Now , it has been stipulated in the record that on May 8, 1951, Mr.
Thomas received a letter from the union , which has been identified in the
record as General Counsel 's Exhibit No. 4. Of course the receipt was not
attached at that time , I presume.
On or about the date that Mr . Thomas received that letter, did he bring it
to you and Mr. Mertz in the shop?
A. Well , he didn't bring it to us on that date. I think it was a day or two
afterward that he received it, he brought it back while we were eating lunch.
Q. Where was that that you were eating lunch?
A. At the desk in the rear of the shop.
Q. Who was there besides yourself?
A. Robert Mertz.
Q. And what did Mr . Thomas do at that time with that letter?
A. He come back there and he throwed it down on the desk . He says,
"Here, I want you birds to read this."
Q. What if anything did he say?
A. He didn't say nothing at that time. I said to him, I said, "Why just
pick on us two?"
And he says, "Well, you are the instigators of this." And I said, "Well,
we are no more the instigators than 11 of us were ; we all went up and
signed up at the union at the same time."
Q. What else if anything was said?
A. Then he said, "Well, before I will have a union in the shop," he says,
"I will close the damned place."
Groff's testimony was corroborated by that of Robert Mertz. Thomas, though
called as a witness by the Respondent , was not interrogated as regards the
above conversation with Groff and Mertz . Consequently the undersigned credits
their testimony in this regard, and finds that Thomas made the statements at-
tributed to him by Groff and Mertz.
Mertz also testified that Thomas in the course of the above conversation said
that ". . . Eleven members went down there and joined the Union that day" ;
which the undersigned finds to mean that the employees went down to the union
hall on the night of May 1 , 1951 , and joined the Union.
A few days after the above conversation Thomas went to Mertz and told him
that he was angry at the time he made the above remarks and what he meant
to say was that if the Union 's demands were too great he might be forced to
close the plant, ". . . because he couldn 't stay in business for his health."
Unquestionably Thomas' remarks to Mertz and Groff were intimidating, and
coercive in that they not only carried with them a threat of a reprisal but also
put the employees on notice that he was well aware of what had transpired at
the union meeting on the night of May 1 , 1951. Thomas' remarks are all the
more important because they belie his testimony that he had no knowledge of
the number of employees who had joined the Union on the night of May 1, 1951,
until their signed application cards were offered and received in evidence with-
out objection at the hearing herein. Of which more anon. Thomas' attempted
retraction of a portion of his remarks in his conversation with Mertz is in the
considered opinion of the undersigned of no avail when considered in the light
of the record as a whole , and his admitted activities which the undersigned
finds hereinafter to have been violative of the Act. True, repudiation of acts
242305-53-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committed, and published retraction of both the printed and spoken word, par-
ticularly when uttered either in a jocular vein or in a fit of anger , may be for-
given and found to be not violative of the Act. This is particularly true where
such remarks are isolated and made in a background devoid of animus towards
the concerted activities of employees. But where as here they become part and
parcel of an increasing animosity towards protected concerted activities of em-
ployees, then they are per se violative of the Act, and the undersigned so finds.
The Board and the courts have so found in a long line of cases too numerous
to burden this Report with excerpts therefrom or citations of cases in point
Shortly after Thomas' conversation with Mertz and Groff he took Crowley's
letter and posted it on the bulletin board.
That Thomas was fully aware of the fact that the Respondent's employees
had joined the Union is further evidenced by the undenied, uncontradicted, and
credible testimony of Patsy Romero, who testified that shortly after the em-
ployees had joined the Union she heard Thomas tell Lillian Thomas , who op-
erated a nearby machine, that it was "dirty of us to go to the Union." True,
this statement is nothing more than an expression of an opinion by Thomas, but
it is at least evidence that the Respondent was fully advised of the concerted
activities of its employees. The importance of this conversation will be ap-
parent hereinafter in tl„d undersigned's determination of the conflicting testi-
mony of Thomas and 1 Towley as regards what transpired in their meeting
of on or about May 9, 19:51.
Shortly after the Respondent received the letter of May 5, 1951, from the
Union, Thomas called a meeting of all the employees in the plant. It was held
in the shop after working hours In the course of his speech Thomas, inter alma,
reminded the employees that the shop was small and that in his opinion they
didn't need a union to represent them He also pointed out that up to the
present time they had gotten along together without a union, and that on the
whole their relationship had been pleasant, that he had tried to be fair and
square with the employees ; and had on his own initiative granted them paid
holidays and vacations, loaned them money, paid sick leave, paid a portion
of their doctor and hospital bills ; and that in view of these benefits he couldn't
see where they would profit in any way by joining the Union a He also informed
the employees that he himself at one time had been a union representative but
that times were different now, and the need for unions to represent employees
had passed , particularly In small plants . Thomas then went on to recite what
had happened to other small plants in the Toledo area that had been unionized.
The gist of this portion of his speech was to the effect that the unions demanded
too much and that as a result the companies referred to failed financially and
were forced to close up. Having stated his opinions as to why he thought the
employees were foolish to join the Union, he devoted the last portion of his
speech to the problems facing the Respondent and the employees at that time,
and what the Respondent would do in case the unionization of the plant continued.
This is best told in the testimony of Patsy Romero, which the undersigned credits :
And then he told us that he didn't want anybody coming into his shop
and looking through his books and telling him how to run his own business.
6 The undersigned is not unmindful of the recent holding of the United States Court of
Appeals, Seventh Circuit, in the case of N. L. R. B. v. Winer, Inc., 194 F. 2d 870, as
regards an analogous situation , but he is convinced that it is not applicable here in view
of the subsequent acts of the Respondent and when viewed in the light of the record as
a whole.
4 From the credible testimony of Patsy Romero.
APEX TOLEDO CORPORATION 821
He said that before he would do that, before he would put everything that he
has got out of the business back into the business, that he would close the
doors.
Q. In that connection, did he mention any organization?
A. Do you mean the union, or anything like that?
Q. Yes.
A. Well, that one, of course his referring was to the UAW-CIO, because
that was where the letter came from.
The employees were paid for the time consumed by Thomas' speech which
was made after working hours The record shows that there was nothing new
or novel about Thomas calling a meeting of the employees after working hours.
The Respondent had followed this practice for years, and it was usually for
the purpose of discussing either wage increases or some problem concerning
the production in the plant
As the undersigned sees it there was nothing wrong about Thomas addressing
the employees since the record shows that such meetings were commonplace.
All that he can glean from the testimony in this regard, particularly that of
Romero, is that Thomas expressed his opinion about the Union, and labor organi-
zations in general, his past experience, and that of others, and his opposition to
the Union. Such portions of his speech merely express his personal opinions
and are a proper exercise of free speech Standing alone, the undersigned would
find that they were not violative of the Act in view of the provisions of Section
8 (c) of the Act. Unfortunately for the Respondent they do not stand alone.
The gravamen of his remarks is the fact that he coupled them with a subtle
threat of reprisal in the event that they chose to exercise the rights guaranteed
them by Section 7 of the Act: the loss of their jobs. In the considered opinion
of the undersigned this is the only reasonable inference that can be drawn
from Thomas' statement to the effect that if the Union came into the plant it
would do certain things that would cause him to "close the doors." Clearly such
a remark coming as it did at the inception of the Union's efforts to bargain
with the Respondent constituted interference with, restraint, and coercion.
and consequently was violative of Section 8 (a) (1) of the Act, and the under-
signed so finds
A few days later Crowley had occasion to call at the Respondent' s plant
relative to the discharge of one Bettie Schneider. He met with Thomas
and in the course of the conversation that ensued they discussed the issue raised
by the Union's request for recognition in its letter of May 5, 1951. Crowley's
version as to what transpired at this meeting is set forth below.
Thomas was upset by the letter from the Union, primarily because the
Respondent's plant was small and relations with the employees had been good
in the past without a union. Crowley told him that the Union had several
contracts with small plants and that relations between the parties had been
satisfactory. He also told Thomas that he had nothing to fear from the Union.
Crowley also impressed upon Thomas the fact that the employees sought
the Union out and came to see him about it representing them as their bar-
gaining agent of their own free will and accord without solicitation by either
him or the Union. Thomas admitted this and also the fact that he knew that
the employees had joined the Union, but that the only reason they had done
so was because he [Crowley] "had sold them a bill of goods." At no time did
Thomas ask Crowley for evidence that the Union represented a majority of
the Respondent 's employees, such as application-for-membership cards and
the like, nor did Crowley offer to submit such evidence. The testimony of
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crowley though somewhat confusing and bombastic at times clearly shows
that Thomas was opposed to the unionization of the Respondent's employees,
primarily because of the smallness of the plant and the economic hardships
that in his opinion might follow such action on the part of the employees.
The undersigned is convinced and he so finds that Crowley did not use the
threats attributed to him by Thomas in his testimony, a summation of which
follows below, but on the contrary tried to sell Thomas on the idea that the
Union, instead of being a detriment to the Respondent, might in the long run
be of assistance in the event of the curtailment of production in the plants
serviced by the Respondent since the Union had contracts with the same plants,
which contained clauses therein to the effect that all things being equal union-
ized plants would be favored in the placing of orders by such companies.
Thomas testified at considerable length at the hearing both on direct and
cross-examination. In the main his testimony was to the effect that the Re-
spondent's plant was too small to be unionized, and that assuming that the
employees did join the Union it was not of their own free will and accord but
because Crowley threatened them with the loss of their jobs if they refused
to do so. He also testified that at the time he and Crowley had their first
conversation he was unaware of the fact that any of his employees except
perhaps three or four had joined the Union and that all he knew about it was
the information contained in the Union's letter of May 5, 1951. Thomas also
insisted in his testimony that Crowley at no time offered to show him evidence
to substantiate his claim that the Union represented a majority of the employees
in the shop, even though he repeatedly requested him to do so.
Thomas also testified that after he had refused to recognize the Union solely
on Crowley's claim that it represented a majority, Crowley suggested that they
use the processes of the Board, and let it hold an election to settle the issue.
As the undersigned understands Thomas' testimony in this regard Crowley sug-
gested an agreement for a consent election. One phase of Thomas' testimony
that intrigued the undersigned was his insistence that it was the duty of the
employees to have first notified him personally before contacting the Union
and that after having done so it was incumbent upon them to tell him that they
had authorized the Union to represent them rather than to delegate this pro-
cedure to the Union's international representative, Crowley.
Upon the record as a whole the undersigned finds that at the meeting described
above between Crowley and Thomas, the Respondent refused to recognize the
Union as the exclusive bargaining representative of its employees in a unit
which the undersigned finds below to be appropriate. He also finds that at this
meeting Thomas made no demand upon Crowley, the Union's international repre-
sentative, to submit evidence of the Union's majority. He further finds that
at the time of the meeting Thomas was well aware of the fact that 11 of tiie
13 employees in the unit found appropriate below had signed authorization cards.
The undersigned's findings above are primarily predicated upon the following
important factors: (1) Thomas had been informed by both Mertz and Groff
prior to the meeting with Crowley that 11 of the employees in the shop had
gone to the union hall and signed application-for-membership cards and the
undersigned has so found above; (2) the testimony of Thomas that Crowley
sold the employees on the idea of the Union and that the cards were signed
under duress; 8 and (3) the tendendy of Thomas in his testimony throughout
8 While it is true that Thomas did not use the word "duress" in his testimony it is obvious
that this was what he had reference to throughout his testimony, which is further evidenced
at pages 11 and 12 of the Respondent's brief.
APEX TOLEDO CORPORATION 823
the hearing to stress the disadvantages of having a union in a small plant ° In
the considered opinion of the undersigned it was the latter which caused him
to color his testimony and to lose sight of what actually transpired at the meet-
ing. Though Thomas' position as regards the unionization of the plant is under-
standable his testimony in support of it is of little value in evaluating the evi-
dence that is relevant to the major issues involved herein. Consequently the
undersigned is convinced and he so finds that Crowley's account of what actually
transpired at the above meeting is the more accurate of the two, and is credited
accordingly.
As regards the appropriate unit, the complaint alleges, the answer admits, the
parties stipulated at the hearing, and the undersigned finds that the following
constitutes an appropriate unit for the purpose of collective bargaining: 10
All employees of the Respondent's Toledo, Ohio, plant who are paid by the hour,
excluding office clerical employees, and guards, professional employees, and super-
visors as defined in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9 (b) of the Act.
Shortly after Crowley's meeting with Thomas which has been described above,
the Union filed on May 18, 1951, with the Board's Regional Office in Cleveland,
Ohio, a petition for certification of representatives under Section 9 (c) of the
Act. On May 21, 1951, the Regional Office notified the Respondent of the Union's
action in this regard and advised that Field Examiner Edward A. Grupp had
been assigned to investigate the case. On June 5, 1951, Field Examiner Grupp
wrote the parties a letter and advised them that a joint conference would he
held at the Respondent's office on June 15, 1951, at 9: 30 a. in at which time
the question concerning representation would be investigated. All parties were
requested to have available any and all correspondence, contracts, payrolls, and
other pertinent information necessary to properly investigate the issues raised
by the Union's petition for certification of representatives,"
A few days after receipt of Field Examiner Grupp's letter Thomas called a
meeting of all the employees in the plant for the purpose of conducting two elec-
tions, the first to determine whether or not the employees would obligate them-
selves to be bound by the results of a second election which was to determine
whether or not they desired to be represented by the Union.
The following account of what transpired at the election meeting is taken
from the testimony of numerous witnesses called by both the General Counsel
and the Respondent. In the main the witnesses are in agreement as to what
transpired at this meeting insofar as their testimony pertains to matters
pertinent to the issues herein.
On the afternoon of June 12, 1951, Thomas came into the plant during the
rest period. At that time the employees were congregated around a large table
in the rear of the plant. Thomas came up to the table and said to the assembled
employees in words or substance that he had a chance to bid on some parts but
did not care to do so unless he was assured that the Respondent could "carry out
his promises." He then said, "So we are going to settle this once and for all,"
and proceeded to explain his plan to conduct an election among the employees.
9 See infra for further testimony in this regard.
10 As regards the status of employee Leo Schiagheck , son-in-law of President Thomas, see
supra. The undersigned finds that he is an employee within the meaning of the Act and
should be included in the unit. He also finds that Lillian Thomas , a niece-in -law of Presi-
dent Thomas, is likewise an employee within the meaning of the Act, and that she too
should be included in the unit
11 Case No . S-RC--1289.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Present also were Lee Jude, plant superintendent, and Thomas ' daughter, Mary
Ann Schlagheck. Before proceeding with the election Thomas told the employees
that the first ballot was (as explained above) to be marked "yes" or "no" and if a
majority voted "yes" on the first ballot, then a second vote would be taken and
the employees were to mark the ballots "for" or "against" the Union. Thomas'
daughter, Mary Ann, passed out the ballots and collected them. The result
was 11 "yes" and none opposed. The second vote was then made and the result
was 7 "against" the Union and 4 "for" the Union. During the election, Thomas
and Jude stood back from the table about 20 feet. The ballots were counted by
Mary Ann Schlagheck, Harold Groff, Leo Schlagheck, and Superintendent Jude.
After the balloting was completed and the votes counted, Thomas again
addressed the employees. He said, inter alia, "That settles that." ` . . . I don't
want no more arguing about the Union down here." He then proceeded to tell
them about the parts the Respondent expected to bid on. Next he advised them
that the employees were entitled to a 5-cent per hour raise, but that the
Respondent could not grant it because of the "union business," but that since the
union business was settled lie would see what he could do about it. He then
told the employees that he would have a petition drafted for them to sign so that
he could show it to the "government man" when he called at the plant on June
12, 1951, which, as indicated above, was the date set for the conference between
the Respondent, the Union, and Field Examiner Grupp.'Z Shortly thereafter the
following petition was circulated among the employees for their signature :
APEx TOLEDO CORPORATION,
1947 FRANKLIN AVENUE,
TOLEDO 2, OHio, June 12, 1951.
To Whom It May Concern:
After careful consideration, open discussion and a closed vote, we the
undersigned have decided, in a majority vote, to maintain our present
employee, management relationship and have voted against union representa-
tion. We also wish to state that our decision has been arrived at in the
absence of any pressure exerted on us by any source whatever.
We the undersigned do hereby affix our signatures after carefully reading
the above.
(S) Robert R. Mertz. (S) Tat Romero.
(S) Leo J. Schlagheck. (S) Margaret Kennedy.
(S) Harold Groff. (S) Lois Kennedy.
(S) William C. Bailey . (S) Ruth Singleton.
(S)
(S)
Roland F. Thompson.
Doris Beckmann.
(S) Lillian Thomas.
On June 12, 1951, the parties met as scheduled at the Respondent's office.
Present were the following, Thomas, the Respondent's president, Crowley, the
international representative of the Union, and Field Examiner Grupp.
At the onset of the hearing Crowley insisted that the shop committee that
the employees had selected at their meeting in the union hall on the night of
May 1, 1951, should be present. Thomas refused to take them away from their
work and participate in the meeting. His reason for taking this position was
that the three employees on the committee, Ruth Singleton, Harold Groff, and
11 The record shows that Crowley called the Respondent on several occasions between
the date of his first meeting with Thomas on or about May 10, 1951 , and the meeting with
Grupp and Thomas at the Respondent 's office on June 15, 1951 , and on each occasion asked
the Respondent to recognize the Union, which it refused to do. This finding is made from
the credible and undented testimony of Crowley.
APEX TOLEDO CORPORATION 825
Robert Mertz, constituted 25 percent of his working force and their absence
from the production line would seriously interfere with production. Crowley
insisted that they had a right to be present, but Thomas refused to recede from
his original position. After considerable argument on this point, Crowley, at
least for the moment , did not press his demands in this regard , and the parties
proceeded to discuss the issues involved. To begin with, under the guidance
,of Field Examiner Grupp, the possibilities of holding a consent election at an
early date were discussed at some length. In the course of the discussion
Thomas stated that since it was the time for the employees to take their vaca-
tions it would be difficult to conduct an election until after they had returned,
and that according to the schedule this would be sometime in the latter
part of August. At this point in the discussion Crowley again insisted that
the union committee be called in so that he could intelligently discuss the ques-
tion of the date to hold the election. After considerable argument Thomas
receded from his original position and agreed to permit Harold Groff, the com-
mittee chairman, to attend the meeting. Crowley left the office and went out-
side and talked to Groff. In the course of the conversation that ensued, Groff
advised Crowley about the elections that the Respondent had conducted a few
days before.' At this point Crowley broke off the conversation, and told Groff
to go back to work. He then returned to the meeting and related to Field
Examiner Grupp the conversation he had just had with Groff, and stated that
he was withdrawing his petition for an election and filing an unfair labor
practice charge against the Respondent. What transpired thereafter at the
meeting is best told by the testimony of Crowley, the Union's international rep-
resentative, which the undersigned credits.
The WITNESS. I told him in view of the company's actions I had to with-
draw my petition and I would file charges under the Act, which I did.
During that same time, when Mr. Grupp and I were there, Mr. Thomas
explained, after I brought it out-it was a secret until I found it out ; I
didn't know about it. And then Mr. Grupe asked him if he did, and he said
he did have it, that he held the election, and he said it was democratic, a
secret ballot, and so forth, and he told Mr. Grupp that he thought he was
wasting his time running around the country holding elections for 10, 12
employees, that the taxpayers' money was being thrown out the window,
and that is the conversation that went on for half an hour or so.
Mr. Grupe and I took our hats and walked out.
Mr. MAHONEY. Move to strike the remark that that's the conversation
that took place for a half hour or so.
Mr. Fusco. I think that is perfectly proper
Trial Examiner SHAW. Well, that can be striken. That's a generality.
All we want is what was said in your presence.
13 There is some testimony in the record to the effect that Crowley had suggested that
the Board be bypassed and that some other method of determining the Union's majority
status be used in order to eliminate the delay that necessarily follows when the Board's
facilities are resorted to. Crowley , in explanation of Thomas' testimony that Crowley
had suggested that an election be held amongst the employees, testified that what he had
in mind and what he suggested to Thomas was that the parties use the facilities of the
"Toledo plan," which is used quite frequently to settle disputes involving small plants
This plan which was originally sponsored and initiated by Michael DiSalle, former mayor
of Toledo , has been used in many industrial areas throughout the country , and whole-
heartedly endorsed where it has had a chance to operate. In a situation similar to that
involved herein impartial and neutral individuals are assigned to determine the facts and
the parties would he bound by their findings, The undersigned credits Crowley's testi-
mony In this regard,
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By Mr . Fusco :
Q. Up to the time that you had talked to Mr. Groff and then come back
and disclosed to the meeting what Mr. Groff had said about the election,
had Mr. Thomas told you or Mr. Grupp or either of you about the election?
A. No, he hadn't said a word about it. At the time, when I went to get
Mr. Grupp , remember , I was getting him to help me figure out our vote on
the NLRB.
Q. You mean Mr. Groff?
A. Yes, Mr. Groff . That's what I went to get him for.
At that time Mr. Thomas was talking about agreeing to a consent election,
but we couldn 't agree as to a date on account of vacation time.
Shortly after Crowley stated the Union's position as regards the pending
petition for representation the meeting broke up and Crowley and Grupp left
the Respondent 's office.
Thomas' testimony in the main is along the same line as that of Crowley as
to what transpired at the meeting with Field Examiner Grupp on June 15, 1951.
There is no serious conflict in their testimony , except that Thomas was slightly
more garrulous than Crowley. For the most part Thomas' testimony was in
the nature of a defense of his actions in conducting the elections and the futility
of the Union in its attempt to bargain for the employees.
Conclusions as Regards the Alleged Refusal to Bargain and the
Events Leading Up Thereto
The undersigned has found above that the Respondent acting through Presi-
dent Thomas committed certain acts that constituted interference with, restraint,
and coercion of the rights guaranteed employees by virtue of Section 7 of the
Act, and consequently were violative of Section 8 (a) (1) of the Act.
The undersigned has also set forth above the facts surrounding the election
conducted by the Respondent amongst its employees on or about June 12, 1951,
which he finds below to be also violative of the Act. The ultimate determina-
tion of the General Counsel's allegation in the complaint that the Respondent
since on or about May 5 and 8, 1951, and at all times thereafter has refused to
bargain with the Union, will likewise be disposed of hereinafter.
To begin with the undersigned feels compelled to dispose of the Respondent's
contention that its employees were coerced into joining the Union, and threatened
with the loss of their jobs by Crowley if they refused to do so. The record dis-
closes that Thomas in his testimony both on direct and cross-examination
repeatedly refers to the circumstances under which the employees signed the
union application-for-membership and/or authorization cards. According to
Thomas the cards were signed under duress" and hence the Union at no time
was the "legal" representative of the employees. In its brief the Respondent
stresses this issue and cites as authority for its position the Seamprufe and
Smith Cabinet Company cases 76 The undersigned has found above that the Union
acting through its international representative, Crowley, did not intimidate
or coerce the Respondent's employees into joining the Union, but that on the
other hand, 11 of the 13 employees simultaneously signed union- membership
and authorization cards of their own free will and accord, and up to at least
the date of the hearing herein had not seen fit to withdraw from the Union,
revoke their desigation of it as their bargaining representative, or make a
14 That is that Crowley in selling the employees a "bill of goods" (meaning the Union)
threatened them with loss of their jobs if they refused , by forcing the companies that had
done business with the Respondent to cease doing so.
35 See Seamprufe Inc., 82 NLRB 892; Smith Cabinet Company , 81 NLRB 886.
APEX TOLEDO CORPORATION 827
demand on the Union to return their $2 initiation fee. Moreover the under-
signed has found above that the Respondent, speaking through President
Thomas, on at least 2 occasions threatened its employees with loss of their jobs
in the mode and manner described above if they did select the Union as their
bargaining representative. Even a mere cursory review of the record by a
layman would substantiate such a finding. The undersigned has carefully
perused both the Seamprufe and Smith Cabinet cases and is convinced and
finds that they are not applicable to the facts found herein. The undersigned
is also convinced that this finding is buttressed by the facts found above as
regards the election conducted by the Respondent, which for the most part,
except for a few minor matters, are based upon uncontradicted and undenied
testimony of witnesses called by both the General Counsel and the Respondent.
The two elections conducted by the Respondent and the drafting and cir-
culation of the petition to reiterate and emphasize the results of the election
are so clearly violative of the Act that little comment is necessary. Suffice it
to say that such conduct on the part on an employer in the face of (1) a demand
for recognition by the Union which unquestionably represented a majority
of the employees at the time the demand was made; (2) a petition for deter-
mination of representatives under Section 9 (c) of the Act on file with the
Board; (3) the pending prearranged conference between the Respondent, the
Union, and an authorized agent of the Board ; and (4) the fact that the Respond-
ent was well aware of all these factors is well established in the record. It
is, as pointed out above, violative of the Act for an employer to engage in the
conduct described above. Such elections or polls in the face of the facts found
above particularly as regards its employees' union membership or sympathies is
per se not only violative of the Act in that it constitutes illegal interference
and coercion, but is as well notice to the employees that the Respondent has
rejected in toto the principle of bona fide collective bargaining, as guaranteed
employees in Section 7 of the Act. Consequently, the undersigned finds that
the Respondent by conducting the two elections amongst its employees and the
drafting and circulation of its petition to reaffirm and emphasize the results
of the election are violative of Section 8 (a) (1) of the Act.
As indicated above, the General Counsel amended his complaint at the hear-
ing to include therein an allegation that the Respondent independently violated
Section 8 (a) (1) of the Act by its refusal to permit the Union's shop com-
mittee to attend the meeting on June 15, 1951, between the Union. the Respondent,
and Field Examiner Grupp. The record shows that Thomas, the Respondent's
president and representative at the conference, did refuse during the early
stages thereof to acquiesce to the union representative's demands that the com-
mittee be permitted to attend the meeting, but it also shows that Thomas re-
ceded from his original position in this regard and agreed that the chairman
of the committee, Harold Groff, could attend. Thomas' explanation of his action
in this regard was that it would seriously interfere with the operations in the
plant for three to leave their machines. In other words, approximately 25
percent of the working force. In the considered opinion of the undersigned,
Thomas' position in this regard was reasonable,18 particularly since he even-
tually agreed to Groff's presence at the conference.
Under these circumstances the undersigned is convinced that the Respondent
did not violate Section 8 (a) (1) of the Act by refusing to permit the entire
committee to shut down their machines for the purpose of attending the meeting."
u As to the question of reasonableness see Cincinnati Steel Casting Co., 86 NLRB 592.
17 The fact that Groff did not physically participate in the meeting is of no importance
because Crowley , the Union's representative , walked out of the meeting after be had talked
to Groff outside the conference room and had told him to go back to work
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Groff 's presence alone was adequate for all practical purposes connected with
the issues that were before the parties at the conference. Consequently the
undersigned recommends that this allegation in the complaint be dismissed.
The Refusal to Bargain
President Thomas' conduct before the conference of June 15, 1951, and there-
after particularly as regards his veiled threats of reprisal to the employees if
they exercised the rights guaranteed them in Section 7 of the Act and selected
the Union as their bargaining representative are clearly violative of the Act,
and the undersigned has so found above. Likewise his promises of benefits to
the employees in the event that they repudiated the Union and abandoned
their statutory rights have been found above to be violative of Section 8 (a) (1)
of the Act.3e The undersigned has also found above that the elections sponsored
and conducted by the Respondent were likewise violative of the Act.
It was in the atmosphere described above that the parties met with Field
Examiner Grupp on June 15, 1951. Under such circumstances the avowed
purpose of the conference was doomed from the beginning.
Throughout the record President Thomas excuses his refusal to recognize
the Union as the designated exclusive bargaining representative of the em-
ployees on the grounds that Crowley, the Union's international representative,
was not the "legal" representative of the employees. He so told Crowley at
their first meeting on or about May 10, 1951. Nowhere in the record does he
explain just what he meant by that expression. The only testimony in the
record that throws any light on this subject at all is his testimony as regards
the antics of an ambulance-chasing lawyer who somehow appeared on the scene
to represent a man who had suffered a broken leg in an accident. Throwing
aside all surplusage, frivolous, and irrelevant remarks that clutter up the record
in this regard, the fact remains that 11 of the Respondent's 13 employees volun-
tarily went down to the union hall, and signed cards which designated the
Union as their exclusive bargaining representative ; paid their $2 initiation
fees; and to date have neither revoked the agency thus established or demanded
a refund of their $2 initiation fee. There is nothing in the record showing
that any of these employees were not sui juris, or physically handicapped,
compelled to participate in the meeting, or restrained from withdrawing from
the meeting at any time they wished. From all of this the undersigned infers
that what Thomas meant was that the Union had not at all times material
herein been certified as the exclusive bargaining representative of a majority
of the Respondent's employees in a unit found appropriate by the Board.
Thomas' reasoning in this regard was fallacious, because there is nothing in
the Act, the Board's Rules and Regulations, or the decisions of the Board and
the courts that provides that a union, an individual, or as a matter of fact
any instrumentality that has the capacity to act as an agent for employees for
the purposes of collective bargaining as regards wages, hours, rates of pay,
or other conditions of employment, shall first be certified by the Board before
it can legally function as such. The decisions of the Board and the courts are
to the contrary. Cases in support of the undersigned's conclusion in this regard
are too numerous to cite and encumber this Report with excerpts therefrom"
Suffice it to say, however, that Section 8 (a) (5) of the Act requires an
employer, on demand, to recognize and deal exclusively with a Union which
has been designated as the collective bargaining agent by a majority of his em-
18 See Everett Van Kleeek f Company , 88 NLRB 138 , and cases cited therein.
99 To cite but a few cases , see Kelly A. Scott , 93 NLRB 654 ; C. Pappas Co, Inc., 82
NLRB 765; and Everett Van Kleeck f Company, 88 NLRB 138.
APEX TOLEDO CORPORATION 829
ployees in an appropriate unit. The duty to bargain is mandatory ; certification
of the Union by the Board is not a prerequisite. Consequently an employer acts
at his peril if he refuses to recognize a union which is in fact (as is the case
here ) the statutory bargaining agent at the time it requests recognition, re-
gardless of whether or not it has been formally certified by the Board.20
In its brief the Respondent makes much of the fact that Crowley at no time
offered to show Thomas evidence of the fact that the Union did represent a
majority of the Respondent's employees. The Respondent, however, completely
overlooks the fact that Thomas at no time requested Crowley to produce such
evidence. Likewise the Respondent ignores the undenied and uncontradicted
testimony of Groff and Mertz as regards their conversation with President
Thomas on or about May 8, 1951, in which both told Thomas that 11 of the em-
ployees had joined the Union on the night of May 1, 1951. To say that Thomas
had no idea, no information, was uninformed, and completely in the dark (so to
speak) as regards the number of employees who had joined the Union until the
hearing herein, in the face of his own testimony as regards the smallness of the
plant and the record as a whole, is beyond the comprehension of the undersigned.
Certainly in a plant as small as the Respondent's, and where conversation back
and forth was commonplace, and discussions as regards the Union rampant dur-
ing the times material herein, it is reasonable to infer that not only Thomas but
every employee, supervisory, clerical, and rank-and-file, was fully informed at all
times of the Union's majority status. And the undersigned so finds.
Under such circumstances Crowley was under no duty to show Thomas the
signed authorization cards. To have done so would have been a useless gesture.
It is axiomatic that equity will not require the doing of a vain or useless thing.
Aside from the fact that the Respondent made no demand on the Union to
evidence its majority status at either the meeting with Crowley on or about May
12, 1951, or at the conference on June 15, 1951, there remains the further fact
that at the second meeting (i. e., the conference) Crowley was adN ised by Groff
that the Respondent had indulged in the host of unfair labor practices found
above between May 8, 1951, and June 15, 1951. With this information at band,
and Thomas' admissions as regards the elections and his proffer of the signed
petition as evidence of the fact that the employees had abandoned the Union,
Crowley withdrew from the meeting before he was requested to evidence the
Union's majority status. At this point the Union had two choices: (1) it could
either have gone ahead with the proposed election in the face of the unfair labor
practices found above, or (2) withdrawn its petition for a determination of
representatives by the Board, and file a charge of unfair labor practices against
the Respondent. It chose to do the latter. The situation herein is somewhat
similar to that found in Everett Van Kleeck d Company, infra, where inter alia
the Board found: S1
Experience has shown that such an atmosphere is not dispelled within
the short space of time that elapsed between the Respondent's unfair labor
practices and the date set for the election. It is common knowledge, and the
Board and the courts have held in cases too numerous to discuss herein, that
employees are naturally sensitive to threats made by recalcitrant employers
of economic reprisal for exercising the rights guaranteed them under Section
7 of the Act. Moreover in such an atmosphere as found herein it is axiomatic
that where employees are threatened with the loss of their jobs in the event
30 See N. L. R. B. V. Piqua-Munising Wood Products Co., 109 F. 2d 552, 556 (C. A 6) ,
N. L. R. B. v. Harris-Woodson Co., 162 F. 2d 97, 99 (C. A. 4).
21 That is, it adopted the following excerpt from the Intermediate Report.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they exercise their statutory rights to engage in concerted activities, there
can be no free election that would express the untrammeled will of the
employees as contemplated by the Act.
Again , it must be remembered that at the time the events herein occurred,
the Act as amended was in effect . Under its provisions if the Union lost the
election then the employees and the Union would be precluded for a year
before they could again petition the Board for election.
Under the circumstances found hereinabove the Union was faced with the
dilemma of either going ahead with the election , or exercising its rights
under Section 10 of the Act and file unfair labor practices against the
Respondent . Unquestionably it had the right to do either . It chose to
proceed as outlined above.
From all the above the undersigned is convinced and he so finds that the Re-
spondent at all times material herein knew that the Union represented a ma-
jority of its employees in an appropriate unit . He has also found above that
President Thomas ' contention that the employees were coerced into signing the
union cards is without foundation . The undersigned also rejects, as being
untenable , the contention of the Respondent that the employees by signing the
petition referred to above renounced the Union and thus dissipated its majority.
Suffice it to say that even though the Union had lost its majority position by this
time it was due to the Respondent 's unfair labor practices. In the considered
opinion of the undersigned no other inference cans be drawn from the facts
found above. The undersigned also finds that at all times material herein the
Respondent has not only failed to act in good faith with the Union but has re-
jected in toto the principles of collective bargaining.
In view of the above findings and the record as a whole , the undersigned is
convinced and finds that by the above-described acts the Respondent violated
Section 8 ( a) (5) of the Act , and in so doing likewise violated Section 8 (a) (1)
of the Act.
The Alleged Discriminatory Discharge of Harold Groff, and the Events
Leading Thereto
Harold Groff was employed by the Respondent on or about October 26, 1948,
as a machine operator and worked as such at all times material herein . During
the course of his employment he worked at one time or another on practically
all the machines in the shop.
The record clearly shows and the undersigned has found above that Groff
was the outstanding union leader among the Respondent 's employees. It was
he who first contacted Crowley, the Union 's international representative, and
arranged for the employees to meet with the latter at the union hall on the night
of May 1, 1951 . In addition he was selected by the employees as the chairman
of the shop committee. His activities in this regard have been set forth above
and will not be reiterated in this section of the Report . His activities on behalf
of the Union were well known to the Respondent.
As indicated above , the Union filed with the Board on or about June 21, 1951,
an unfair labor practice charge in which it alleged that the Respondent had
engaged in certain unfair labor practices which were violative of Section 8 (a)
(1) of the Act . As found above the charges against the Respondent were predi-
cated on the information given Crowley by Groff at the conference between the
Union , the Respondent , and Field Examiner Groff on June 15 , 1951 . Shortly
after the charges were filed , the case was assigned to Field Examiner Grupp,
Eighth Region ( Cleveland , Ohio ), for investigation . As Is the custom Grupp
APEX TOLEDO CORPORATION 831
in the course of his investigation arranged through the Union for a meeting
with certain of the Respondent's employees for the purpose of gathering infor-
mation as regards the validity of the charges. Groff informed the employees in
the shop of the meeting. The meeting was held on or about August 14, 1951, at
the offices of Lamb and Mack , attorneys for the Union."
During the course of the meeting statements were secured from a number of
the employees who were present. Among those present were Groff, Lois Ken-
nedy, Margaret Kennedy, Ruth Singleton, Robert Mertz, Patsy Romero, Roland
Thompson , William Bailey, and Doris Beckman. At this time President Thomas
was on his vacation.
Upon Thomas' return he was informed of the above meeting by someone in
the shop. Shortly thereafter he called Groff into his office. Thomas asked Groff
about the meeting and told him he "didn't like the idea of being stabbed in the
back." " On the following Wednesday, August 29, 1951, Groff was laid off.
The events leading up to the layoff are best told in Groff's testimony in this
regard :
Q. Tell us how that layoff occurred. What happened?
A. Well, I was just going over to get my jacket, and Mr. Jude called me in
the office. He says, "Harold, I don't know how I am going to tell you this" ;
he says, "I hate to tell you this, but I just work here." He says, "I was told
to lay you off."
And I says, "What reason?"
He says, "Go in and see Mr. Thomas."
So I went in and I saw Mr. Thomas. And he told me that it was job
seniority.
Well, of course, now, I didn't know how many was getting laid off that
night. I knew that the Airway line was down, and I knew it was awful
slack, and previous to this I had run the lathe for three days, I think it was,
and then he told me that it was job seniority.
Well, I didn't know how many was getting laid off, so I just went on about
my business and figured, "Well, some others is getting laid off, too."
On the following Friday, August 31, 1951, Groff went to the office to get his
check. At that time he saw Doris Beckman and Margaret Kennedy at work.
Both of these employees had less seniority than he did. On the next Friday,
which was September 7, 1951, Groff again went to the shop to secure his final
check for the week beginning August 27, 1951." At this time Beckman and
Kennedy were still working in the shop, and in addition two other girls had been
called back to work. Groff was concerned about this and went to President
Thomas, and asked him about the situation. What transpired is likewise best
told in Groff's testimony in this regard :
The WITNFss Doris Beckman and Margaret Kennedy were still work-
ing and two other girls had been called back in the meantime, and I hadn't
been called back yet.
So I said to Mr. Thomas, I says, "Looks like I ain 't going to get called
back."
He says, "No, you are done." He says, "I don't like people around here
stabbing me in the back all the time."
m The meeting was originally scheduled to be held in the Williard Hotel, Toledo, Ohio.
but for some reason or another was transferred to the offices of Lamb and Mack.
u See infra under that section of this Report concerning the alleged violation of Sec-
tion 8 (a), (4) of the Act.
25 It was the Respondent's practice to withhold 1 week's pay.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner SHAW. Where did this conversation take place?
The WITNESS. In the superintendent's office in the shop.
Q. What else if anything did he say?
A. I can't recall anything right now.
Q. Was any reference made to the meeting with Mr. Grupp?
A. No, sir.
Q. Was any reference made to Mr. Crowley?
A. Well, there was a statement made that I should have let Mr. Crowley
do his own dirty work and keep my nose clean.
Trial Examiner SHAW. Who made that statement?
The WITNESS. Mr. Thomas.
Trial Examiner SHAW. At the time you were in the superintendent's
office?
The WITNESS. Yes, Sir.
Trial Examiner SHAW. The day you went back for your final check?
The WITNESS. Yes, sir. And then he told me that-he says, "I guess you
don't like to work here, or don't like your job." And I told him, I says, "I
like to work here."
And then we got to talking for a while there, and he said that him and
Lee Jude would thrash it out.
Thomas then told Groff to call Lee Jude, plant superintendent, into the office,
which he did.
On the next day, Groff and Jude went fishing in Lake Erie. While they were
so engaged the following conversation, as related by Groff in his testimony,
ensued:
The WITNESS. And I told him Mr. Thomas wanted to see him, so he went
up to the office, and he said that he would let me know the next day.
So we went fishing on Saturday, and Lee Jude said to me, he said, "How
did you make out with Thomas yesterday?"
I said, "I didn't make out. How did you make out with him?" I said,
"You were the one had the conference with him."
Trial Examiner SHAW. That is a conversation, now, between you and
Jude?
The WITNESS. Between Jude and I, yes.
And he said, "Well, you come back to work Monday morning as if nothing
happened, but don't be too active in the union."
Trial Examiner SHAW. Now, that is what Jude said to you?
The WITNESS. Yes, Sir.
Trial Examiner SHAW. On the fishing trip?
The WITNESS. Yes, sir.
By Mr. Fusco :
Q. Where was that statement made?
A. Out in the middle of Lake Erie.
Q. In a boat?
A. Yes.
Trial Examiner SHAW. Probably.
Groff returned to work on Monday morning, September 10, 1951.
According to Groff he was paid for Labor Day, September 3, 1951, along with
the other employees.
Groff's testimony as regards the above incidents stands undenied and un-
contradicted in the record. Consequently it is credited by the dndersigned.
APEX TOLEDO CORPORATION 833
Moreover, Lee Jude, the shop superintendent , at all times material including the
time of the hearing herein , was not called as a witness by the Respondent and
no showing was made by it that he was unavailable as such.
At the time Groff was laid off, August 29, 1951, he was operating a lathe.
The week before that Margaret Kennedy had operated the same machine. After
Groff was laid off Kennedy was put back on this lathe, and was still operating it,
at least on Friday, September 7, 1951, when Groff went to the shop for his final
check.
The record also shows that during Groff's layoff, four employees with less sen-
iority than he were kept on the job, at least for a part of the time. They were Mar-
garet Kennedy, Doris Beckman , Geraldine Yarad , and June Kane. The under-
signed has found above that it was the Respondent's practice to assign certain
Jobs to the females, certain others to the men, and that there were jobs and ma-
chines that were operated by both. From this finding and from the record as
a whole the undersigned finds that the job Groff was on at the time of his layoff
was one that could be handled by either sex. The undersigned also finds from
the above, and upon the record as a whole, that at the time Groff was laid off,
the Respondent had suffered a severe cut-back in its orders for machined prod-
ucts from the Airway Company , one of its principal customers ; and that as a
result of this economic condition it was necessary to lay off a few employees.
Conclusion
It is quite true, as the undersigned has found above, that the Respondent was
faced with a serious economic situation at the time Groff was laid off. It is
also true that other employees were laid off at the same time. From these facts
alone one might reasonably justify an inference that Groff was laid off for eco-
nomic considerations. By the same token, one could disregard Groff's seniority,
and justify the Respondent's retention of the female employees (even though
they had less seniority) because their hourly rate was considerably less than his.
Unfortunately for the Respondent they do not stand alone.
It is well settled that a trier of the facts cannot ignore uncontradicted and
undenied testimony. Such is the situation herein. Groff's testimony as regards
his conversations with President Thomas has been set forth above. They stand
undenied and uncontradicted in the record. Likewise the testimony of Groff
as regards his conversation with Superintendent Jude. On this testimony alone
the only reasonable inference that the undersigned could possibly draw is that
Harold Groff was discriminately discharged or laid off by the Respondent on or
about August 29, 1951, and refused reinstatement to his former or substantially
equivalent employment until September 10, 1951. There is no question about
Groff's union activities ; the record is replete with credible testimony by wit-
nesses called by both the General Counsel and the Respondent on this score.
It is also well established in the record that the Respondent was well aware of
his activities on behalf of the Union.
From all of the above the undersigned is convinced that the Respondent
actually discharged Groff on August 29, 1951, and that Thomas at the time he
did so had no intention of ever recalling him to work. There are certain factors
present in the instant case that compels the undersigned to reach this conclusion.
For example, when Thomas first learned that the employees had joined the
Union, he flared up and in an angry mood took Groff and Mertz to task for their
25 Leo Schlagheck had less seniority than Groff, but he was a too] and die maker, and,
of course, in a different status at the time of the layoffs
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part in the affair. A few hours after his "outburst" he apologized to them
individually for his conduct . Again , from his demeanor on the stand the under-
signed is convinced that he was inclined at first to take the employees' efforts
to unionize the plant as a personal affront, but that later after giving the matter
a little more thought he became more tolerant in his viewpoint. The under-
signed 's conclusion in this regard is based not only on his observation of Thomas
while testifying but also upon what he said in explaining why he engaged in
the conduct described above. From all of this the undersigned is convinced that
Thomas relented his original decision as regards Groff and decided to recall him
to work. Regardless of his change in attitude, the fact remains that the words
were spoken, the discharge made, and the letter and spirit of the Act violated.
From all of the above and upon the record as a whole the undersigned finds
that the Respondent discriminatorily discharged Harold Groff on or about August
29, 1951, and refused to reinstate him to his former or substantially equivalent
employment until September 10, 1951, because of his membership in and activities
on behalf of the Union, and that such conduct was in contravention of the
rights guaranteed employees in Section 7 of the Act, and hence violative of
Sections 8 (a) (3) and (1) thereof.
There yet remains for disposition the allegation in the complaint that Harold
Groff was also discharged because he had given testimony under the Act, and
that by such conduct the Respondent did engage in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (4) of the Act.
In support of his allegation in this regard the General Counsel relies on the
testimony of Groff and others as regards the meeting of several of the Respond-
ent's employees with Field Examiner Grupp on the night of August 14, 1951, and
the events that occurred thereafter. Particularly, Thomas' remarks to Groff
in the "stabbing in the back" conversation, which has been set forth in detail
above, and Thomas' speech to the employees on August 30, 1951. It is well
established in the record that Groff was instrumental in assembling the em-
ployees so that they could be interviewed by Field Examiner Grupp; and that
all of the employees who were present at the meeting including Groff gave state-
ments to the field examiner. Nowhere in the record is there any testimony that
Groff gave Field Examiner Grupp an affidavit. Nor was such an instrument
offered in evidence by the General Counsel. The only matter in the record that
has any bearing on this issue is a statement of the General Counsel in his oral
argument that Groff gave the field examiner an affidavit . Such statements of
course are not evidence. Nor can the undersigned infer that the word "state-
ment" means affidavit for the simple reason that legalistically speaking there
is a great difference between an affidavit and a statement . The former is made
under oath and attached thereto and a part thereof is a clause ( known as the
Surat) stating when and before whom the declaration was made; the latter is
otherwise.
Section 8 (a) (4) of the Act reads as follows: ". . . to discharge or otherwise
discriminate against an employee because he has filed charges or given testimony
under this Act."
Under such circumstances and in the absence of any substantial evidence that
Groff did in fact give the field examiner an affidavit, the undersigned is con-
vinced that this allegation in the complaint should be dismissed, and he so
recommends.
It may be said that this finding is too technical and unrealistic in the face of
the host of unfair labor practices found above. Perhaps it is. But the fact
remains that the statute reads ". . . testimony under the Act." Such language
APEX TOLEDO CORPORATION 835
is clear and concise ; according to the dictionary, testimony means ". . .; Law,
a spoken or written declaration furnished by a witness under oath or affirmation.
Syn. witness , affidavit, attestation, affirmation." It is silent as regards a state-
ment not made under oath. Nor can the undersigned infer that the word
"statement" as used in "Board language" means an "affidavit ." If the Congress
had in mind any and all statements taken or received by Board agents it would
have so expressed itself in clear and concise language . This it did not choose
to do.
In his oral argument in further support of his contention that Groff was dis-
charged in violation of Section 8 (a) (4) of the Act, the General Counsel had
the following to say :
... In connection with the 8 (a) (4), I want to cite Burnside Steel Foundry
Company, 69 NLRB. I don't have the page. There, the Board held that
where a charge is filed by a Union on behalf of an employee, and the employee
is subsequently discharged because such a charge was filed by the Union,
it is a violation of 8 (a) (4). Even though the employee did not file the
charge it was filed on his behalf by the Union.
As to the above contention of the General Counsel that Groff inter alia was
discharged because the Union filed a charge in his behalf the undersigned is
convinced and finds that the record herein refutes his position in this regard
for the simple reason that no charge was filed on his behalf until October 22,
1951, which was almost 2 months after the discharge, and 6 weeks after the
Respondent had reinstated him to his former or substantially equivalent employ-
ment. In the face of such evidence it is obvious that the General Counsel's
contention in this regard must likewise be thrust aside.
From all of the above the undersigned is convinced that the Respondent in
discharging Harold Groff did not violate Section 8 (a) (4) of the Act. Con-
sequently it is recommended that this allegation in the complaint be dismissed
in its entirety.
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 1,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent engaged in certain acts of interference,
restraint, and coercion, it will be recommended that Respondent cease and
desist therefrom.
It having been found that from on or about May 8, 1951, and thereafter,
Respondent refused to bargain collectively with Local 12, International Union,
United Automobile, Aircraft & Agricultural Implement Workers of America,
CIO, it will be recommended that Respondent, upon request, bargain collectively
with said Union.
It has also been found above that Respondent discriminatorily discharged
Harold Groff on August 29, 1951, and reinstated him to his former or substan-
242305 -53-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tially equivalent position on September 10, 1951?" It will therefore be recom-
mended that the Respondent make Groff whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him by payment
to him of a sum of money equal to the amount which he normally would have
earned as wages during the period from August 29, 1951, to September 10, 1951,
inclusive, less his net earnings during said period. Cf. Crossett Lumber Com-
pany, 8 NLRB 440, 497-8.
Upon the consideration of the entire record, the undersigned is convinced that
the Respondent's conduct indicates an attitude of opposition to the purposes
of the Act generally. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, thereby minimizing industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, it will
be recommended that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed to the employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. Apex Toledo Corporation, Toledo, Ohio, is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Local 12, International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. All employees of the Respondent's Toledo, Ohio, plant who are paid by the
hour, excluding office clerical employees, guards, professional employees, and
supervisors as defined in the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9 (b) of the Act.
4. At all times since May 1, 1951, the Union has been and now is the exclusive
representative of all the employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
5. By failing and refusing at all times since on or about May 8, 1951, to
bargain collectively with the Union as the exclusive representative of the
employees in the aforesaid unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of
the Act.
6. By discriminating in regard to the hire and tenure of employment of Harold
Groff, thereby discouraging membership in the Union, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
( a) (3) and (1) of the Act.
7. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed employees in Section 7 of the Act, Respondent has
engaged and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
8. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (4) of the Act.
9. The Respondent did not violate Section 8 (a) (1) of the Act by refusing
to permit the entire shop committee to attend an informal conference conducted
by the Board between the Union and the Respondent, on or about June 15, 1951.
26Though the complaint alleges that Groff was reinstated on September 9, 1951, the
undersigned is convinced that it was on September 10, 1951, because the 9th was a Sunday.
Since there is no substantial evidence in the record showing that the Respondent operated
its plant on Sunday, the undersigned has found as above.
AL MASSERA , INC. 837
10. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
AL MASSERA , INC.; J. J. CROSETTI AND WARREN E. SCARBOROUGH, CO-
PARTNERS , D/B/A J. J. CROSETTI Co.; E. J. RUSSELL , AN INDIVIDUAL,
D/B/A INDEPENDENT GROWERS CO.; WALTER M. CHRISTENSEN, HAR-
OLD S. CHRISTENSEN , AND ANDREW H. CHRISTENSEN , JR., COPARTNERS,
D/B/A CHRISTENSEN BROS.; PETER A . STOLICH , AN INDIVIDUAL, D/B/A
PETER A. STOLICH Co . ; R. T. ENGLUND, AN INDIVIDUAL , D/B/A R. T.
ENGLUND CO . AND H . E. CREAN, AN INDIVIDUAL, D/B/A GROWERS
PRODUCE DISPATCH and LOCAL INDUSTRIAL UNION No. 78, CIO
K. R. NUTTING , AN INDIVIDUAL , D/B/A K. R. NUTTING Co. and LORETTA
HIGUERA
FRESH FRUIT & VEGETABLE WORKERS' LOCAL No. 78 and LOCAL INDUS-
TRIAL UNION No. 78, CIO
FRESH FRUIT & VEGETABLE WORKERS' LOCAL No. 78 and GROWERS-
SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIFORNIA. Cases
Nos. 20-CA-436,456,461,467,490,491,495,20-CA-496,20-CB-150,
158, and 2O-CB-161. December 8,1952
Amended Decision and Order
On May 28, 1951, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceedings, finding that
Respondents Local 78, Christensen, Stolich, and Englund had engaged
in and were engaging in certain unfair labor practices, and recom-
mending that they cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report. The Trial
Examiner further found that Respondents Massera, Crosetti, Inde-
pendent, Growers, and Nutting had not engaged in any unfair labor
practices, and recommended that the complaint be dismissed with
respect to them. Thereafter, Christensen, Stolich, Englund, and the
General Counsel filed exceptions to the Intermediate Report and
supporting briefs. Respondent Local 78 filed no exceptions.
On December 28, 1951, the Board issued its Decision and Order, to
which a copy of the Intermediate Report was attached, in which it
found that each Respondent had engaged in and was engaging in
certain unfair labor practices.'
i 97 NLRB 712.
101 NLRB No. 143.