Central Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 4, 1969

178 N.L.R.B. 328 (N.L.R.B. 1969)

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Manufacturing Company, Inc. and
International Union of District 50, United Mine
Workers of America . Cases 25-CA-2877,
25-CA-3107, and 25-RC-3555
September 4, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On April 24, 1969, Trial Examiner Horace A.
Ruckel issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices in violation
of Section 8(a)(3) of the National Labor Relations
Act, as amended, but finding it unnecessary to
recommend a remedial order with respect thereto, as
set forth in the attached Trial Examiner's Decision.
He also found that the Respondent had not engaged
in certain other unfair labor practices in violation of
Section 8(a)(1) and (5) of the Act, and
recommended that such allegations of the complaint
be dismissed, and that an objection to the second
election be overruled, as further set forth in the
attached Decision. Thereafter, the General Counsel,
and the Charging Party filed exceptions and
supporting briefs The General Counsel also filed a
brief in support of part of the Trial Examiner's
Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in these cases, and hereby
adopts the findings,' conclusions, and
recommendations of the Trial Examiner, as
modified herein.
1. In the complaint, the General Counsel alleged
that the Respondent's postsettlement conduct with
respect to its pension plan violated Sections 8(a)(1)
and (5) of the Act. However, at the hearing the
General Counsel explicitly waived any contention
that this conduct constituted an independent
violation of Section 8(a)(1) and thereby precluded
the Respondent from litigating any available defense
to such allegation. In view of the above, and as we
agree with the Trial Examiner in the circumstances
of this case that the Respondent was under no
obligation to bargain with the Union at the time it
altered its pension plan, we find that the
Respondent's postsettlement conduct did not violate
'[Certain inadvertent errors in the Trial Examiner ' s Decision have been
noted and corrected I
the Act. Accordingly, as the settlement agreement
has not been breached, we shall order that it be
reinstated, and in so doing do not reach, and
consequently do not pass upon the remaining
allegations of the complaint.
2. In Case 25-RC-3555, the Trial Examiner ruled
upon an objection to the second election when in
fact this objection was not before him as the Board
had already sustained that objection on July 9, 1968,
and had directed that a third election be held. The
sole objection that the Trial Examiner could have
considered was to conduct affecting the first election
and then only in the event that the aforementioned
settlement agreement, which incorporated a
stipulation to set aside the first election, was found
to have been breached. Accordingly, in view of our
finding that the settlement agreement was not
breached, we shall order that Case 25-RC-3555 be
processed pursuant to our outstanding Decision,
Order, and Direction of Third Election of July 9,
1968.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
IT IS HEREBY'FURTHER ORDERED that the settlement
agreement in Cases 25-CA-2877 and 25-RC-3555
be, and hereby is, reinstated.
IT IS HEREBY FURTHER ORDERED that the'Regional
Director for Region 25 shall take the action set
forth in our Decision, Order, and Direction of Third
Election dated July 9, 1968.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
HORACE A. RUCKEL, Trial Examiner: On July 11, 1967,
International Union of District 50, United Mine Workers
of America, herein called the Union, filed an unfair labor
practice charge (Case 25-CA-2877) against Central
Manufacturing, herein called the Respondent , alleging
violation of Section 8(a)(3) and, derivatively, 8(a)(1) of the
National Labor Relations Act, herein called the Act, by
discharging Floyd Morrow and Joseph McCord because
of their activity in behalf of the Union. On the same date
the Union filed a petition in Case 25-RC-3555. Pursuant
to the charge the General Counsel of the National Labor
Relations Board, herein called the Board, through the
Regional Director for Region 25 (Indianapolis , Indiana)
filed a complaint of unfair labor practices against
Respondent dated August 31, 1967. Respondent filed an
answer denying the commission of unfair labor practices.
A hearing was held before me on November 2 and 3,
1967, at which all parties were represented. At the
conclusion of the General Counsel's case in chief, on
motion of the Respondent the hearing was recessed until
November 13, and then until January 29, 1968.
On September 15, 1967, a consent election was held
pursuant to the Union's petition in Case 25-RC-3555,
which the Union lost. The Union filed three objections to
178 NLRB No. 52
CENTRAL MANUFACTURING CO., INC.
the election. The Regional Director directed a hearing on
one of them and dismissed the others. Also, the Regional
Director reserved a determination of challenges to ballots
cast by Floyd Morrow and Joseph McCord, named as
8(a)(3)'s in Case 25-CA-2877.
The hearing before me resumed on January 29, 1968, at
which the parties entered into a settlement agreement,
which included a stipulation to set aside the election and
hold a second one The hearing was recessed indefinitely
pending notification from the Regional Director of
compliance with the settlement agreement
The second election was held on April 10 which the
Union again lost, by a vote of 26 to 15. Again the Union
filed objections, one of which the Regional Director
sustained On July 9 the Board, on the Regional
Director's recommendation, set aside the election, to
which the Respondent took no exceptions, and the Board
on July 9 directed that a third election be held This
election, in fact, was never held.
On April 15, upon being apprised of the result of the
election of April 10, the Union filed a new charge
(25-CA-3107) The complaint in this case was issued on
October 31, 1968, alleging for the first time a failure of
Respondent to bargain with the Union in violation of
Section 8(a)(5) of the Act On November 15, the General
Counsel moved the Trial Examiner for leave to amend the
complaint in Case 25-CA-2877, to reopen the record
therein, and to consolidate CA-2877 with CA-3107. The
motion was granted. On October 31 the Regional Director
withdrew approval of the settlement stipulation entered
into in CA-2877 the previous January 29, 1968. When the
hearing resumed before me on January 13, 1969, I granted
a motion to consolidate RC-3555 with CA-2877, as
amended, and with CA-3107, and the issues were litigated
together
I. THE BUSINESS OF THE RESPONDENT
Respondent, Central Manufacturing Company, Inc., is
an Indiana corporation maintaining its principal office
and place of business at Parker, Indiana, where it is
engaged in the manufacture, sale, and distribution of
automotive parts and related products During the year
prior to the issuance of the complaint herein, Respondent
in the conduct of its operations purchased and delivered to
its plant goods and materials valued at more than $50,000
which were transferred to its plant directly from States
other than the State of Indiana. During the same period
Respondent manufactured, sold, and distributed at its
plant products valued at more than $50,000 which were
shipped from said plant to States other than the State of
Indiana The complaint alleges and Respondent's answer
admits that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
iI. THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine
Workers of America, is a labor organization admitting
employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The Union' s Organizing Campaign and the
Discharge of Floyd Morrow and Joe McCord'
'Pursuant to the settlement agreement entered into on January 29, 1968,
1. The campaign
329
Morrow came to work in January, 1967 for the
Respondent, as a dye setter and setup man. Previous to
this he had been employed for approximately 3 years by
Pierce-Governor Company, a nearby plant, of which the
Respondent is a wholly owned subsidiary. McCord began
work for Respondent on May 10, 1967, as a truckdriver.
Both Morrow and McCord were discharged on July 8
under circumstances hereinafter related. Union
organization of Respondent's employees began on June
26, 1967, when Jake Haffner, the Union's International
representative, at Morrow's invitation called at his home
and left a number of union application cards with him.
During the next few days Morrow obtained at the plant,
before and after work and during break periods, the
signatures of 20 employees to these cards, and McCord
the signatures on three cards. No one else solicited
signatures The first meeting of the Union for
Respondent's employees took place on July 6, and at this
meeting Morrow and McCord turned over the signed
application cards to Haffner.
Roy Knotts was a supervisor on the payroll of
Pierce-Governor who worked in Respondent's plant as
supervisor of the punch press division He was Morrow's
immediate supervisor, under the general foremanship of
Lee Mills. Morrow and Knotts were on friendly terms
dating back to the former's own employment at
Pierce-Governor. A few days before the union meeting on
July 6, Knotts had dinner at Morrow's home. According
to Morrow, there was some discussion of the Union
during which Knotts cautioned him not to distribute cards
on company time. Knotts denied while testifying that the
Union was mentioned on this occasion. I credit Morrow's
testimony in this respect 2
2. The Discharge of Morrow and McCord
On Friday, July 8, at the morning break period,
Morrow asked and was granted leave by Mills to go home
to pick up his family and visit Morrow's mother, who
Morrow said was ill. On the same day, shortly before
noon, Mills approached McCord while he was working on
a washer and told him that Ethel Brown, secretary to
Charles Nearing, Respondent's president, wanted him to
come to the office and pick up his paycheck. Morrow
expressed surprise, reminding Mills that the employees
had been paid the day before, and asked him what was
up. Mills replied that he did not know.
McCord asked Brown why he was being paid and
Brown said that "somebody said you were drinking."
When McCord protested that he had not been drinking,
Brown said that he would have to talk to Nearing, who
was not at the plant, and she gave him his paycheck As
McCord was leaving the plant another employee told him
that a final paycheck had also been mailed to Morrow, so
McCord went to Morrow's home and informed him, and
the two went to the plant to see Nearing. Nearing,
Floyd Morrow and Joe McCord were paid a total of $4,654 in backpay,
without reinstatement . When the settlement agreement was rescined by the
Regional Director on the ground that it had been violated by Respondent
in respect of its undertaking not to interfere with an agreed upon election,
and the hearing resumed, not only did Respondent proceed with the
presentation of its defense to the 8 (a)(3) violation , but the General Counsel
recalled Morrow and McCord for further questioning Both the parties and
the Trial Examiner treated the proceeding as being de novo
This evidence is offered merely as going to show Respondent's
knowledge of Morrow ' s activity in the Union
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, had not returned to his office Brown confirmed
to them the fact of their discharge, but gave them no
reason for it Nearing admitted while testifying that he
gave Morrow and McCord no reason for discharging
them, nor is not controverted that Mills, their foreman,
did not At the hearing, Nearing testified that his decision
to discharge was based upon Brown's report to him that
certain women employees had reported to her that one or
both of the two employees had been "drinking on the
job" Nearing testified that "they work around punch
presses and-no one has any business drinking intoxicating
beverages, working around a punch press " Nearing, when
asked, admitted however that McCord was a truckdriver,
work which had nothing to do with a punch press
Nearing further conceded that neither Mills nor any other
supervisor had complained that Morrow or McCord had
been drinking on the job. Nor is it contended that Brown
had seen either of the discharged employees drinking on
the job, or under the influence of liquor, or that she had
so reported to Nearing Brown herself was not called as a
witness
Nearing testified that the only employee who talked to
him personally about either Morrow or McCord, was
Cynthia DeHart when she signed a "statement" to the
effect that Morrow had invited her "to join him in a drink
of alcoholic beverages" while they were both working.
Nearing was uncertain as to the date of the event. First
placing it as around June 16, then June 23, he then stated
that it "all happened after that. I can't tell you that it was
that day or two or three days after that or when it was. It
was all after June 23 "
Nearing's testimony was both nebulous and
contradictory. He had great difficulty in recalling dates,
which I believe due in large part to the fact that he had no
personal knowledge of Morrow's and McCord's conduct
in the plant, and relied on accounts from employees as
they were filtered through Brown who, herself, professed
to Nearing no personal knowledge and did not testify
Mills, who,was called, had no first hand information to
contribute. Nor did Knotts, Morrow's immediate
supervisor, who was on his vacation at the time, and was
called back by Nearing who told him he had discharged
Morrow and McCord and needed him at the plant. Knotts
testified that he said nothing to Nearing about McCord's
drinking until he was called back from his vacation and
told that the two employees were discharged. He then,
according to his testimony, told Nearing that he had seen
a bottle in McCord's lunch pail at some unspecified
previous time. Later, he contradicted himself and stated
that he reported the event to Nearing prior to McCord's
discharge. His testimony on direct' was as follows
THE WITNESS I told him-it was right after I came
back from my vacation, I told Mr. Nearing he told me
that he let Joe and Floyd go and I told him then that
there was a bottle, that I caught Joe back there with a
bottle in his lunch bucket.
TRIAL EXAMINER- But you didn't report it to him-
Nearing until after they were discharged9
A No. Well, that is true.
Q. You saw the bottle before?
A. That is right. I saw the bottle
Q My question is, did you report it to Mr Nearing
before or after they were discharged?
'He was called as a witness by the General Counsel
A. After they were discharged.
Knotts described the contents of the bottle in McCord's
lunch box as colorless He did not describe the bottle as a
liquor bottle, but "a little round bottle, something similar
to an olive bottle "
There was no evidence adduced that Morrow or
McCord had been drinking on the job, the reason
advanced for Morrow's discharge. Cynthia DeHart who,
after the discharges signed a statement for Nearing,
testified in the following idiom to an encounter with
Morrow in the plant-
Q After you had been there about a half an hour on
June 22, 1967, would you tell the Trial Examiner what,
if anything, occurred between you and Floyd Morrow?
A Yes, uh huh.-He had come through there and he
had a bottle of orange pop and it smelled good
TRIALEXAMiNER. A bottle of what?
THE WITNESS- Orange pop So he asked me, I said,
"That's either an awful strong drink or pretty good
aftershave you're wearing," and he said, "Here." and
let me have a drink, and it was-I mean, at seven-thirty
in the morning it's kinda -ugh.
Q. (By Mr. Strutz) What did it taste like?
A. It tasted like orange pop and whiskey
Q What did you do after you tasted the orange pop
and whiskey9
A. Gave it back to him, and dust-you know, at
seven-thirty in the morning, it's kinda- yuk.
On the following day, according to DeHart's further
testimony, after she had started to work Morrow and
McCord came through the plant with a bottle "between
them" and offered her a drink
Q You didn't drink from that bottle, did you9
A Yeah.
Q. Did you see them drinking from that
A Yes, I did.-We all drank out of the same bottle.
Q It was fairly common practice for everyone to
gather around and drink out of it?
A. Oh, usually-when you work with somebody eight
hours a say, you're usually-you know, they're usually
not into anything you're not . . It wasn't the general
practice, but when he offered it I thought, you know,
maybe he was, you know, he didn't have anything in it,
but I was kinda shocked to find out it did.
DeHart's shock is not entirely understandable in view
of her further testimony that she not infrequently smelled
alcohol on the breath of other employees, and her
admission that she herself had "been known to stop and
get a beer myself before I go in, one or two," or in light
of her testimony that the previous December the witness,
her husband, and a friend brought two bottles of liquor
into the plant and drank while working until the foreman
said they had better wait until the supper break. Then
everyone drank, including the foreman and his wife
DeHart's testimony that Morrow or McCord' offered
her a drink on the second of two successive days, and that
all three drank, seems in conflict with her further
testimony that she did not see Morrow, at least, drink:
TRIAL,EXAMiNER: Orange ade and whiskey9-Was that
it?
THE WITNESS' - But t don't know that he was
drinking. He just might have used it
`The witness' pronouns seem interchangeable so it is difficult at times to
say to whom she is referring.
CENTRAL MANUFACTURING CO.. INC.
Q. He. might have been bathing in it'?
A. Just the one day is the only day I can say he did,
he was drinking because I tasted it that day.
TRIALFxAytINER: What day was that?
Tiir. WITNESS: That was the previous day.
As shown by the witness' testimony as to the previous
day, quoted first above, although she drank the mixture of
orange ade and whiskey, she made no mention of Morrow
or McCord having done so.
According to DeHart's further testimony Nearing
called her to the office while she was working. "right after
July 4th," and asked her to sign a statement concerning
Morrow's drinking, which she did. She testified as follows
as to Nearing's stated reason for asking her for a
statement'
"Well, I needed- I needed an excuse for I iring them,"
and then he caught himself, and he said "Well, what I
mean was, I have to have a reason. I have to provide a
reason for the Union" or the International or
something.
DeHart admitted that at the time she left Respondent's
employ she told another employee that she would do what
she could to keep Morrow from coming back to work On
redirect examination, when Respondent endeavored to
show that one reason for her leaving was the conduct of
Morrow and McCord, she testified as follows:
Q. Do you recall telling Patty that you left that work
because you didn't want to work around Floyd
[Morrow] and Joe [McCord] who were a couple of
drunks?
A. I told everyone that the day I left.
Q. That is why you quit your job9
TRIAL RAMiNER You told them what?
TilE WITNESS: That I didn't have to work around a
bunch of drunks
DeHart's own uncontradicted testimony, when asked by
Respondent's counsel when she finally quit work, was that
it was on September 27. 1967, and I so find . Morrow and
McCord had been discharged the previous July 8
Obviously DeHart had no reference to them as among the
bunch of drunks she referred to.
Indeed the record conveys the impression that
Respondent was permissive when it came to drinking by
the employees It is not disputed that one of the female
employees was escorted home when she appeared drunk at
work, and that she was not disciplined DeHart's own
testimony speaks for itself. But so far as Morrow is
concerned there is no evidence apart from the testimony
of DeHart, which is contradictory. that he ever drank
while at work.' As to McCord. there is no evidence of this
whatever.
Both Morrow and McCord denied that they had ever
drunk liquor on the job, or brought liquor into the plant.
As to the bottle which McCord admittedly had in his
lunch basket, he stated that it contained only water to
wash down some pills his doctor had given him for his
'Barbara Huffman tesulied . however, that on several occasions Morrow,
who seems to have directed her work in minor respects , would on some
occasions cur se her for not performing it properly, or "when passing
through the department would threaten imel with his fist" nlihough, "his
conduct was always real nice ." and "we got alongverswell - he has an
awful temper if something does not go hisway--.,nd he would just get so
mad." On one occasion Huffman reported Morrow's language to Knotts
who assured her Morrow would not hurt her. She slated that she did not
say anything about Morrow to Nearing until after Morrow had been
discharged Huffman , although she gave it as her opinion that on the
occasions she testified to Morrow had liquor on his breath , or had been
drinking, does not state that she actually saw him drinking on the job
331
throat Both employees testified without contradiction that
they had never been warned or reprimanded for drinking
on the job or in the plant
Conclusions as to the Discharges
it is clear from this record that Nearing discharged
Morrow and McCord, the only active proponents of the
Union, on July 8, 2 days alter the first meeting of the
Union. That this was cause and effect, and not sheer
coincidence, is supported by the manner in which the
discharges were effectuated. JNeither employee was given
any reason for his sudden termination, although both
sought this information from Nearing, and in his absence
from Nearing's secretary, Brown, who merely referred
them to Nearing, who was not available. Neither Mills.
the general foreman, or Knotts, Morrow's immediate
supervisor, advanced any reason to the two employees.
There is in fact no evidence that either Knotts or Mills
was consulted concerning the discharges. Knotts was on
his vacation at the time, and was recalled to help out at
the plant.
Not only did Nearing not give the dischargees any
reason for discharging them, he had no first hand
knowledge of any drinking on the job. All the information
he had was derived from Brown who obtained it from
other employees Brown herself did not testify. DeHart,
Huffman and Knotts, the only persons who spoke to
Nearing himself about Morrow and McCord, did so after
their discharge. Even in the hearsay reports as they were
filtered through Brown to Nearing, there is an absence of
distinction made between drinking on the job, being under
the influence of alcohol. or having the smell of liquor on
the breath, due to drinking just before coming to work, as
Huffman herself admitted she did on occasion Morrow
also stated that before reporting to work he tended his
livestock and occasionally fortified himself with a drink.
Most of the rumors Nearing testified about came to his
attention during a period beginning about June 23. just
before or at the time that Morrow and McCord began
their solicitation for the Union. No complaint was made
as to the conduct of Morrow and McCord by either Mills
or Knotts, their supervisors. Nearing conducted no
investigation of any kind, not even inquiring of the two
employees concerned as to the truth of the reports as to
them, nor of Mills or Knotts. These circumstances, plus
the longstanding permissiveness of the Respondent toward
drinking in and around the plant, whether or not while
actually performing work, lead me to eonclildc that it was
the activity of Morrow and McCord in organizing the
employees into the Union which determined the
Respondent to discharge them. Nearing admitted that no
other employees had ever been discharged for the reason
assigned here.
I conclude and find that Morrow and McCord were
discharged by Respondent for their activity in the Union
and not for legitimate business reasons, in violation of
Section 8(a)(3) and (1) of the Act
B. The Alleged Refusal To Bargain
1 The appropriate unit
It is conceded that all regular full and part-time
production and maintenance employees of Respondent
employed at its Parker, Indiana, plant including
truckdrivcrs and janitors, exclusive of all office clerical
employees, seasonal and/or casual employees, and all
332 CENTRAL MANUFACTURING CO., INC.
professional employees, guards, and all 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 The record shows that on July 27,
1967. there were 44 employees in the unit exclusive of
Morrow and McCord Since I have found that these two
employees were discriminatorily discharged on July 8, the
total number in the unit was 46. Since then the number in
the unit has fluctuated between 37 and 50. Some of the
original signers subsequently left Respondent's employ.
2 The Union's majority within the appropriate unit
It is conceded that as of July 27, 1967, when it is
contended Respondent first refused to bargain, 28
employees had signed union application cards, including
those of Morrow and McCord. Respondent does not
question the authenticity of any of the signatures to these
cards. Since July 27, 1967, 17 others signed cards, 10 of
these as late as the last week in March 1968, during a
revival of card signing previous to the election of April 10,
1968
The dates on which the complaint alleges that the
Respondent refused to bargain are July 27. and August 15
and 22, 1967. On these days, and continuing thereafter, it
is said that the Union had the signed cards of a majority
in the appropriate unit. As has been stated, neither in the
charge in the first case (CA-2877), nor in the complaint,
issued on August 31, 1967, was a claim of majority made
or a violation of Section 8(a)(5) alleged. On the contrary,
the Union decided to request an election to establish its
majority, and an election was held on September 15, 1967.
The Union lost by a vote of 20 to 18, with 3 challenges,
two of which, Morrow and McCord, I find were properly
within the unit as employees discriminatorily discharged.
The hearing in Case CA-2877 was held on November 2
and 3, 1967, and adjourned to January 29, 1968. In the
interim, on November 24, the Regional Director issued his
Report on Challenges and Objections to Election, in which
it was recommended that one of the Union's objections,
identical with the alleged 8(a)(1) violation alleged in the
complaint case, be resolved in the consolidated complaint
and representation proceeding, and the Board so ordered.
At the resumed hearing on January 29, 1968, the
parties entered into a settlement agreement, which
included a stipulation to set aside the results of the
election of September 15, and to hold another, the
Respondent not to interfere with it. The hearing was
adjourned indefinitely pending notification to the Trial
Examiner of compliance with the settlement agreement
The second election took place on April 10, 1968, and
the Union again lost, this time by a vote of 26 to 15. On
April 15 the charge in CA-3107 was filed. The Regional
Director's report on challenges and Objections to this
second election issued on June 21. All objections but one
were dismissed, and it was recommended that a third
election be held. It has not been held to date. Again,
Respondent interposed no objections to the election After
a substantial interval. to wit on October 31, 1968, the
Regional Office issued the complaint in Case CA-3107,
based upon the charge filed the previous April 15. On the
same date the Regional Director withdrew his approval of
the settlement agreement in CA-2877, and set it aside. He
also set aside the second election. On November 15, 1968.
the Regional Director moved the Trial Examiner to grant
an amendment to the complaint in CA-2877 to
incorporate an allegation of refusal to bargain, in
language identical with the refusal to bargain allegation in
the new case. CA-3107. The conclusion is hardly
avoidable that this amendment was moved as insurance
against a finding that the charge in CA-3107, which was
filed more than 6 months after any of the dates of July
27, August 15 and 22, 1967, was outside the 10(b) period
and barred by the Act's statute of limitations.' At least a
timely charge of some kind, was still extant and might
support whatever superstructure of 8(a)(5) or other
sections of the Act might be erected on this foundation at
any future time. On December 30 the Regional Director
withdrew approval of the Stipulation to Set Aside the
Election in RC-3555, so that the one unresolved objection
to the first election might be considered along with the
two unfair labor practice complaints.
3. The objection to the election : alleged interference,
restraint , and coercion
Objection 2 to the election of April 10, 1968, is the
same as the 8(a)(I) allegation of the complaint in Case
CA-3105, and is that Respondent during the week prior to
the election on April 10, polled employees as to whether
they wanted the existing profit-sharing and retirement
plan amended.
Respondent has for some years had such plan, and it
provides that employees shall have a certain vested share
in its profits, depending upon length of employment. If an
employee left Respondent's employ before having been
employed 10 years, he would forfeit a certain percentage
of the profits allocated to his account The uncontradicted,
credited testimony of Donald F. Strutz, the Respondent's
attorney, is that sometime prior to the second election
held on April 10. certain employees asked Respondent to
amend the plan to permit them to withdraw the funds
which had been fully vested in their accounts, without
waiting for retirement or termination of employment.
Accordingly. a general meeting of employees was called at
which the matter was discussed, and various employees
stated that they wished to have the plan amended so that
their own vested funds might be withdrawn ' Strutz told
the employees that he would study the matter to see what
could be done. Later, apparently during the early part of
April, the employees were informed at a second meeting
that the plan could be amended as suggested and that if
they wanted it so amended it would he done. Those
present voted unanimously for the amendment. Nearing,
for the Respondent, on April 6 advised all employees by
letter that the amendment had been effectuated. In the
same letter he spoke of good working conditions at its
plant and urged them to vote against the Union at the
forthcoming election. These paragraphs of the letter were
of the typical American Tube Bending variety, and
privileged under Section 8(c) of the Act.
Respondent's action in connection with the amendment
to its profit-sharing plan, and its letter of April 6, are
advanced as a reason for setting aside the election of April
10, and as a refusal to bargain with the Union. This
matter is not alleged in the complaint as independent
interference, restraint, and coercion in violation of Section
'The General Counsel claims, however, a "continuing " refusal to bargain
after July 27, 1967 1 find this theory untenable In any event I find
hereinafter that there was no refusal to bargain on July 27.
'One or two employees asked why the employees at Pierce-Governor at
Anderson, Indiana, the parent company or Respondent, could not
withdraw their money from that company's retirement plan, and Strutz
replied that the Union there would not meet to discuss the matter The
record shows that Pierce-Governor had recognized the Union and entered
into a contract with it
CENTRAL MANUFACTURING CO., INC. 333
8(a)(1) of the Act.
I find the statements of Strutz at the above-described
meetings and the amendment in question as insubstantial
as affecting the result of the election. 1 shall recommend
that the objection to the election he overruled. By the
same token I find that Respondent did not violate the
terms of the settlement stipulation entered into on January
29, 1968. by which it agreed not to interfere with the
second election -that of April 10, 1968.
As to whether Respondent's amendment to its
prof it-sharing-retirement plan, made without consulting
the Union, constitutes a failure to bargain collectively in
violation of Section 8(a)(5) of the Act, depends upon
whether the Union represented the employees in the unit
found above to be appropriate, and whether a claim of a
majority was ever made and recognition asked
It has been found that there were 46 employees in the
unit as of July 27, 1967. Prior to that date 28 employees
had signed union authorization cards. The Union, having
lost two elections, now relies upon these cards, all but 10
of which were signed prior to July 27, 1967, or 9 months
before the charge of failure to bargain was filed on April
15, 1968, in Case CA-3107, and 15 months before the
complaint issued on October 31. 1968. The remaining 10
were executed in March 1968
1 see no purpose in deciding whether cards of this
vintage should, after two elections and various changes in
the size of the unit and the personnel within the unit,
should now be relied upon in determining a majority in
the unit. I shall address myself to the question of whether
on July 27, and shortly thereafter, as the complaint
alleges, the Union claimed to have a majority of the
employees in the unit and requested Respondent to
recognize it
4. The alleged requests for recognition
On July 27. 1967. Robert Davidson and Don Tobin for
the Union, and President Nearing and Attorney Donald
Strutz for the Respondent, met at the Spencer hotel in
Marian, Indiana, to discuss the details of the first consent
election eventually conducted on September 15, with one
Regis Trenda acting for the Board's Regional Director.
The testimony of both Strutz and Davidson is that while
they were waiting in the lobby for the appointment with
Trenda they discussed an existing labor dispute and
pending layoff at the plant of Pierce-Governor company, a
company also represented by Strutz. Davidson's testimony
is that during the discussion of the Pierce-Governor
situation he said to Strutz, with respect to Central
Manufacturing Company. "Why in the world don't you
recognize us and lets get on with negotiating the
contract." to which Strutz replied that the company would
not permit it. Strutz's testimony is that Davidson called
him aside to ask him about the Pierce-Governor situation
and he replied that there had been no change in that
company's attitude toward recognition. Strutz denied that
the Respondent was mentioned during this aside. I credit
Strutz's denial.
Shortly following this conversation the two men, with
Nearing, went upstairs to the meeting with Trcnda and
discussed the date and other details of the stipulated
election at Respondent's plant According to Davidson,
during this discussion he said at one point to Strutz,
"Don, why don't you and Charlie [Nearing] recognize us
because you know we've got the people signed up and
we're going to win," to which Strutz replied that the
Respondent wanted an election. Tobin, while testifving,
supported Davidson's testimony on this point. Strutz
admitted that Davidson used the words above quoted,
excepting that he denied that Davidson made any
reference at all to having a majority, and characterized
what Davidson otherwise said about recognition as said in
jest:
Just before we agreed on the date, Bob Davidson
said in a ver, very joking way, "Don, you can save
yourself, the' company and us a lot of trouble by
recognizing us."
And I laughed and Charley Nearing laughed and the
Board agent laughed, and Don robin and Bob
Davidson thought it was a very good joke. and he
roared.
This was the only reference to recognition that he
ever-that I ever heard from Bob Davidson or Mr
Haffner or Mr Tobin or any representative of the
Union . . It was taken as a joke by all of us It
was made in a joking manner, and he made no
representation as to a majority status.
The next meeting of the parties, this time including
Jacob Haffner. an international representative of the
Union, but excluding Tobin, took place on August 15 at
Strutz's office. According to Strutz and Haffner the
principal purpose of the meeting was to discuss the
situation at Pierce-Governor where some employees had
gone on an unauthorized strike on August 4 The
testimony of both Strutz and Haffner is that, at the
request of Davidson, Leroy Bradnick, vice president of
Pierce-Governor, was present
The testimony of' all the witnesses is that the
Pierce-Governor dispute was discussed in some detail, and
that this was the purpose of the meeting (hence the
presence of Bradnick, who had no connection with
Respondent). But the testimony of Haffner is that after
the parties had finished with the Pierce-Governor matter,
Strutz asked him how things were going at Central
Manufacturing, and Haffner, according to his own
testimony. replied that they were going along well and
that "I thought the Company should recognize us," to
which Strutz rejoined in effect that the Respondent
wanted an election Davidson's testimony supports that of
Haffner and embroiders it by saying that Haffner added:
"and then we won't have all these goings on that we
understand is going on down there." When this meeting
broke up another was arranged for August 22, apparently
at the Chanticleer restaurant at Upland, Indiana, near the
Pierce-Governor plant.
At the meeting were Strutz, Bradnick and Davidson,
and it is not controverted that this meeting, too, was for
the purpose of discussing the Pierce-Governor threatened
layoffs and threatened strike Again, Haffner and
Davidson testified that while the men were eating Strutz
asked how things were coming at Respondent's plant,
and Haffner said quite well but he thought Respondent
should recognize the Union, and that the Union had 33 or
34 signed cards, and that Strutz said as he had a week
previously that Respondent wanted an election.
Strutz and Bradnick both denied that Central
Manufacturing was mentioned at this meeting.
Conclusions
As has been stated, the complaint alleges a refusal to
recognize and/or bargain on July 27, August 15 and 22,
1967, the dates of the meetings described above. I am
convinced that on neither of these occasions, except on
July 27, did the Union request the Respondent to
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognize it as the collective- bargaining agent of its
employees in the unit found to be appropriate. As to the
request made, if such it was, on July 27, 1 credit the
testimony of Strutz" that this was made jokingly. The
Board held in J J. Newberry Company, 153 NLRB
1526, that a union's casual suggestion to an employer's
attorney, during a break in a preelection conference, that
the employer could avoid an election by recognizing the
Union on the basis of a card check, did not constitute a
"clear and unequivocal request to bargain," and that the
rejection of the suggestion was not an unlawful refusal to
bargain.
It should be born in mind as to the meetings on August
15 and 22, 1967, that they were called for the purpose of
discussing the events at Pierce-Governor where the Union
was also asking for recognition and the employees were,
or had been, on a wildcat strike. The only meeting
arranged for the purpose of discussing the situation at
Respondent's plant was the first meeting, on July 27, with
a representative of the Board. Admittedly this was for the
purpose of arranging for a consent election, pursuant to
the Union's petition, which the Respondent readily agreed
to. This was the course decided upon by the Union rather
than to rely upon cards. Only after the Union lost two
elections did it decide to attempt to obtain recognition
based upon authorization cards, all but 10 of them 9
months old.'
As to the meetings on August 15 and 22, 1 credit the
testimony of Strutz and Bradnick that Central
Manufacturing was not discussed, and that no request was
made to bargain, even in jest. Even as to the Union's
claim of a request to bargain on July 27, 1967, 1 noted
that Davidson's own testimony did not go so far as to
claim that a majority of the employees had designated the
Union, but said only that "we've got the people signed up
and we're going to win [the election]," without saying how
many people. Neither did any representative of the Union,
even if their testimony were cridited, claim unequivocally
at the meetings of August 15 and 22, that the Union had
a majority at Central Manufacturing as apart from
Pierce-Governor. Nor were any cards offered for
examination by Respondent.
I find that at no time did the Union request recognition
of the Respondent, or to bargain with Respondent. 1 shall
recommend that the consolidated complaint be dismissed
insofar as it alleges that Respondent refused to bargain
with the Union in violation of Section 8(a)(5) of the Act 10
'At the time of the hearing on January 13, 1969, Trenda , who was the
Board s representative present, was a regular student attending Notre
Dame University Upon the request of the Respondent 's officials I issued a
subpena to testily Upon the instructions of the General Counsel and the
Regional Director , Trenda refused to respond to the subpoena on the
ground, as stated by counsel , that he was an "employee," of the Board,
although it was not stated nor does it otherwise appear that he has done
any work for the Board since his temporary employment in the summer of
1967 On motion I revoked the subpoena , although I am not satisfied as to
the representations made as to the temporary nature of his work, or as to
the applicability of Sec 102 118 of the Board ' s Rules and Regulations,
which was invoked to exempt Trends from testifying
'See The Goodyear Tire and Rubber Company, 174 NLRB No 167,
where the Board held that there was no basis for presuming that the card
majority existing at the beginning of the 10(b) period continued over a
6-month period beyond that date
"Although I have grave doubts that the complaint in Case CA-3107,
which for the first time alleged an 8(a )(5) violation , was issued pursuant to
a valid charge filed within the 10(b) period, and also doubt that the
amendment to the complaint in CA-2877, similarly alleging a violation of
Sec 8 (a)(5), is not barred by the 6-month statue of limitation, I make no
finding in this respect It is dispositive of this case that there was no
request by the Union for recognition or to bargain
IV. THE LFFFC7 OF THE UNFAIR LABOR PRACTICES UPON
COMMFRCF
The activ ities of Respondent set forth in section 111,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V THL REMEDY
1 have found that Respondent discriminatorily
discharged Floyd Morrow and Joseph McCord in
violation of the Act. Ordinarily this would warrant the
recommendation that Respondent cease and desist
therefrom and offer them reinstatement to their former or
substantially equivalent employment, with backpay. In
view of the fact that the settlement stipulation between the
Regional Office of the Board and the Union provided only
for the payment of a sum of money to the dischargees
without reinstatement, and that the Respondent has long
since complied with this provision of the settlement
agreement, it would be redundant to recommend that it
take this action. I have further found the Respondent did
not engage in the other unfair labor practices alleged in
the complaint, or interfere with the election conducted on
April 10, 1968 1 shall recommend that the complaint be
dismissed as to such other alleged unfair labor practices,
and that the Union's Objection 2 to the conduct of the
election in Case 25-RC-3555 be overruled.
Since it does not appear in this record that the
settlement agreement pertaining to Morrow and McCord
provided for the posting of notices, and since I have found
that the Respondent has not violated this agreement, I
shall not recommend the posting of the customary Notice
to employees
CONCLLSiONS OF LAW
1. Respondent Central Manufacturing Company, Inc. is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of District 50, United Mine
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Floyd Morrow and
Joseph McCord as found above, Respondent engaged in
an unfair labor practice within the meaning of Section
8(a)(3) and Section 2(6) and (7) of the Act.
4. All regular full and part-time production and
maintenance employees employed at the Respondent's
Parker, Indiana, plant, including truckdrivers and janitors,
exclusive of all office clerical employees, seasonal and/or
casual employees, and all professional employees, guards
and all supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining
withing the meaning of Section 9(b) of the Act.
5. Respondent has not, by refusing to recognize or
bargain with the Union, violated Section 8(a)(5) or (I) of
the Act.
6. Respondent has not engaged in the unfair labor
practices, additionally alleged in the complaint, in
violation of Section 8(a)(l) of the Act.
CENTRAL MANUFACTURING CO., INC. 335
RECOMMENDED ORDER insofar as it alleges the commission of unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
Upon the basis of the foregoing findings of fact and the Act, and that the Union's Objection 2 to the election
conclusions of law, and upon the entire record in this case, of April 10, 1968, be overruled.
I recommend that the consolidated complaint be dismissed