Federal-Mogul

National Labor Relations Board - Board Decisions

Mar 9, 1967

163 N.L.R.B. 302 (N.L.R.B. 1967)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
if employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East Twelfth Street, Kansas City, Missouri
64106, Telephone FR 4-7000.
Sterling Aluminum Company, a Division of
Federal -Mogul and International Molders
and Allied Workers Union of North
America , AFL-CIO. Cases 14-CA-3463 and
14-RC-4904.
March 9,1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On May 9, 1966, Trial Examiner Sidney J. Barban
issued his Decision 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 attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. In addition, the Trial Examiner found
that the Respondent's unlawful conduct had
interfered with the Board election held on
September 21, 1964, and recommended that it be set
aside. Thereafter, both Respondent and General
Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs.'
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 this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds' that no
The Respondent's request for oral argument is hereby denied
because the record, the exceptions, and the briefs adequately
present the issues and positions of the parties.
2 General Counsel takes exception to the Trial Examiner's
failure to make certain findings alleged by the General Counsel to
violate Section 8(a)(1) of the Act. These matters include
Respondent's use of an employment form which inquires into the
union affiliation of prospective employees, certain conduct of
Respondent in respect to employees engaged in concerted
activities to improve their parking facilities, wage increases
instituted in January 1965, certain activities of prominent citizens
of the community of Malden, and the activities of Respondent's
counsel.
We agree with the General Counsel, and we so find, that
Respondent's use of an employment application which required
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations2 of the
Trial Examiner, with the following additions and
modifications.
On December 9, 1966, Respondent and Charging
Party filed with the Board a motion for severance
and settlement. Both parties agreed that reasonable
grounds existed for setting aside the. September 21,
1964, election, the Charging Party waived the
remedy recommended by the Trial Examiner that
Respondent be ordered to bargain with the Charging
Party upon request, and both parties requested a
new election. The parties further agreed that the
8(a)(1) and (3) allegations remain before the Board
for its determination. On January 5, 1967, General
Counsel filed a response to the motion to the effect
that he knew of no reason why the approval of the
motion would not effectuate the purposes of the Act
and therefore had no objection to it. Accordingly, we
grant the joint motion for severance and settlement
insofar as it relates to the bargaining order and the
request for a new election, and we shall set aside the
first election and direct a second one.3
We find merit in the General Counsel's contention
that the notice should be more broadly promulgated.
The conventional reinstatement, backpay, and
posting of notice requirements for 8(a)(3) and (1)
violations are inadequate to undo the effect of
Respondent's widespread and flagrant violations.
Accordingly, we shall require Respondent to mail to
each of its employees a copy of the attached notice
after the notice is signed by Respondent's
representative, in addition to posting copies thereof
at all places in its Malden plant where notices to
employees are customarily posted.4 The employees
to whom the copies must be mailed include not only
employees currently working for Respondent, but
also those found by the Trial Examiner to be on the
adjusted eligibility list of August 23, 1964, including
the 11 employees found to have been
discriminatorily discharged prior to August 23, 1964.
We shall also require Respondent to convene, during
working hours, meetings of employees in the various
departments of the Malden plant and read to them a
copy of the attached notice.5
prospective employees to answer questions as to whether they
were members of a union violated Section 8(a)(1) of the Act.
Springfield Garment Manufacturing Company, 153 NLRB 1126.
As to the remainder of the above-mentioned activities , we agree
with the Trial Examiner that under the circumstances of this case
it is unnecessary to pass on these issues. Any violations that we
might find would be merely cumulative, and our Order herein is
sufficiently broad to cover any further violations of Section 8(a)(1)
of the Act.
' Member Jenkins considers that the settlement of the 8(a)(5)
issue in the circumstances of this case does not effectuate the
purposes of the Act, and does not approve such settlement.
H. W. Elson Bottling Company, 155 NLRB 714.
5 J. P. Stevens and Company, Inc., 157 NLRB 869.
163 NLRB No. 40
ORDER
STERLING ALUMINUM 303
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts the recommendations of the
Trial Examiner , as modified herein , and hereby
orders that the Respondent , Sterling Aluminum
Company, a Division of Federal-Mogul , Malden,
Missouri , its officers, agents, successors, and
assigns, shall take the following action:
1. Cease and desist from:
(a) Laying off , discharging , refusing to employ, or
otherwise discriminating against employees in order
to discourage membership in or support of
International Molders and Allied Workers Union of
North America , AFL-CIO, or any other labor
organization.
(b) Threatening its employees with discharge or
other reprisals if they become or remain union
members or give assistance or support to a union.
(c) Threatening employees that the plant will be
shut down or moved away , or that the work done
in the plant will be moved away, if a union comes
into the plant.
(d) Threatening or enforcing more onerous
conditions of employment to discourage union
membership or activities.
(e) Threatening employees that the selection of a
union as their bargaining representative will result in
loss of benefits or other detriment.
(f) Interrogating employees concerning their
union membership or activities in a manner violative
of Section 8(a)(1) of the Act.
(g) Subjecting employees to ridicule or
embarrassment in order to discourage union
activities or membership.
(h) Promising or granting employee benefits in
order to discourage union activities or membership.
(i) Engaging in, or creating the impression of,
surveillance of the union activities of its employees.
(j) Inducing , instructing , or encouraging
employees to ascertain or report on the union
activities , membership , or union adherence of other
employees.
(k) Threatening its employees that Respondent
will not bargain with a union selected by its
employees , or will not contract with such a union
except upon unfavorable terms, or by any like or
similar means indicating that the selection of a union
by the employees as their bargaining representative
will be a futile act.
(1) Creating grievance committees to discourage
union membership or activities , or otherwise
bargaining directly with employees in derogation of
the exclusive bargaining status of the Union.
(m) Requiring prospective employees to answer
questions on the employment applications as to their
union membership.
(n) In any other manner interfering with,
G In the event that this Order is enforced by a decree of a
United States Court of Appeals, the words "a Decision and
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the purposes of the Act:
(a) Offer to the employees whose names appear in
the attached notice immediate and full
reinstatement to their former or substantially
equivalent positions without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of Respondent's discrimination
against them, as set forth in that section of the Trial
Examiner's Decision entitled "The Remedy."
(b) Notify the employees named in the notice if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Mail a copy of the attached notice marked
"Appendix" to each employee found to be on the
adjusted eligibility list, and to all current employees,
and post copies thereof at its Malden, Missouri,
plant.6 Copies of said notice, on forms provided by
the Regional Director for Region 14, shall be signed
by a representative of Respondent, and additional
copies shall be posted by the Respondent and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notice is not altered, defaced, or
covered by any other material.
(e) Convene during working time, by departments
and shifts, all its current employees, and a
responsible official of the Respondent, at the
departmental supervisor level or above, shall read to
department employees the contents of the attached
notice.
(f) Notify the Regional Director for Region 14, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
The allegations of the complaint that Respondent
committed unfair labor practices by the termination
of the employment of Richard A. Pearson, Darrell
Hyde, Tommy Pearson, William F. Everett, William
Buchanan, and Joseph Perkins, shall be dismissed.
IT IS ALSO ORDERED that the election conducted at
the Respondent's plant on September 21, 1964, be,
and it hereby is, set aside.
[Text of Direction of Second Election omitted
from publication.]
Order" shall be substituted for the words "a Decree of the United
States Court of Appeals Enforcing an Order "
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify you that:
WE WILL NOT lay off, discharge , refuse to
employ, or otherwise discriminate against
employees in order to discourage membership
in or support of International Molders and
Allied Workers Union of North America,
AFL-CIO, or any other abor organization.
WE WILL NOT threaten employees with
discharge or other reprisals if they become or
remain union members or give assistance or
support to a union.
WE WILL NOT threaten employees that the
plant will be shut down or moved away, or that
the work being done in the plant will be moved
away, if a union comes into the plant.
WE WILL NOT threaten or enforce more
onerous conditions of employment to
discourage union membership or activities.
WE WILL NOT threaten employees that the
selection of a union as their bargaining
representative will result in loss of benefits, or
other detriment.
WE WILL NOT interrogate employees
concerning their union membership or activities
in a manner violative of Section 8(a)(1) of the
Act.
WE WILL NOT subject employees to ridicule
or embarrassment in order to discourage union
activities or membership.
WE WILL NOT engage in, or create the
impression of, surveillance of the union
activities of employees.
WE WILL NOT promise or grant employee
benefits in order to discourage union activities
or membership.
WE WILL NOT induce, instruct , or encourage
employees to ascertain or report on the union
activities , membership , or union adherence of
other employees.
WE WILL NOT threaten employees that the
Company will not bargain with a union selected
by its employees , or will not contract with such
a union except upon unfavorable terms, or by
any like or similar means indicate that the
selection of a union by the employees as their
bargaining representative will be a futile act.
WE WILL NOT create grievance committees to
discourage union membership or activities, or
otherwise bargain directly with employees in
derogation of the exclusive bargaining status of
the Union.
WE WILL NOT require prospective employees
to answer questions on the employment
applications as to their union membership.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7
of the Act.
WE WILL offer to the employees named below
immediate and full reinstatement to their
former or substantially equivalent positions,
without loss of seniority or other rights and
privileges, and WE WILL make them whole for
any pay they lost because of the discrimination
against them, with interest.
John Barney
Bob Batchelor
John P. Battles
Gary Burrow
Joseph A. Butler
Teddy H. Butler
Ether Lee Coats
Glendle Elsworth
Lloyd Evans
Larry Golden
Harold Gough
Acy Lee Green
Teddy Guffey
Kenneth Harris
Gale Hodges
Andrew Loafman
Herman Wayne McElrath
D. W. McMillian
David Midkiff
John Moore
Clarence Nettleton
Rodney Proffer
Frankie Rice
Jimmy rose
George Rose
Earl Thurston
William Wages
Billy Joe Walker
Larry Walton
WE WILL notify those employees set forth
above if presently serving in the Armed Forces
of the United States of their right to full
reinstatement upon application in accordance
with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed
Forces.
All our employees are free to become or remain, or
refrain from becoming )r remaining, members of the
International Molders and Allied Workers Union of
North America, AFL-CIO, or any other labor
organization.
STERLING ALUMINUM
COMPANY, A DIVISION
OF FEDERAL-MOGUL
(Employer)
Dated By
(B presentative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone
622-4156.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STERLING ALUMINUM
SIDNEY J. BARBAN , Trial Examiner : This matter was
heard at Poplar Bluff, Malden , and St. Louis , Missouri, on
23 hearing dates from July 26 through September 17, 1965,
upon the issues raised by the amended complaint of the
General Counsel (issued pursuant to charges duly filed by
the above -named Charging Party, herein called the Union),
and the amended answer of the Respondent' to the
complaint in Case 14-CA-3463, and also , pursuant to an
Order of the Board dated June 14, 1965, directing a
hearing in Case 14-RC-4904 , upon issues raised by
conduct alleged to have affected an election conducted
among employees at Respondent ' s Malden plant by the
Regional Director of the Board for Region 14. This latter
Order was expanded by an Order of the Board issued on
October 7 , 1965, based upon a second supplemental report
on objections and recommendations issued by the Acting
Regional Director for Region 14 on September 21, 1965.
The cases were heard together pursuant to an order of the
Regional Director consolidating cases and noticing these
matters for hearing.
All parties appeared at the hearing and were afforded
full opportunity to participate , examine witnesses, and
adduce relevant testimony . Briers received from General
Counsel and Respondent on November 22, 1965, have
been carefully considered.
Upon the entire record in this case ,' and from his
observation of the witnesses and their demeanor , the Trial
Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTIONAL FACTS
Respondent, a Missouri corporation operating
manufacturing facilities at Malden, Missouri, Carmi,
Illinois, and Lawrence, Indiana, annually ships products in
interstate commerce of a value in excess of $50,000 from
its plant at Malden, Missouri, which is the only plant
involved in the present proceedings.
It is admitted and the Trial Examiner finds that
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. LABOR ORGANIZATION
It is admitted and the Trial Examiner finds that the
Union is a labor organization within the meaning of the
Act.
' All prior formal papers identified the Employer in Case
14-RC-4904 and the Respondent in Case 14-CA-- 3463 as Sterling
Aluminum Products , Inc A question was raised during the
hearing as to the proper present identification of the Respondent-
Employer , and after the close of the hearing , the General Counsel
and Respondent , in separate documents submitted to me, agreed
to the above - stated identification of the Respondent -Employer,
herein called the Respondent In order to complete the record, the
following posthearing documents are hereby received as Trial
Examiner 's Exhibits (herein TX Exh ) Respondent 's request to
the Board , dated September 21, 1965, for permission to appeal
from the ruling of the Trial Examiner revoking subpenas-TX
Exh 1 , telegraphic order of the Board denying Respondent's
request , dated September 29, 1965-TX Exh 2, second
supplemental report on objections and recommendations in Case
14-RC-4904 (with attachments ), dated September 21, 1965-TX
III. THE ALLEGED UNFAIR LABOR PRACTICES
305
A. Preliminary Statement of Facts and the Principal
Issues
Respondent is engaged at its Malden operations
principally in the manufacture of automobile pistons. Prior
to 1963, these operations had been conducted for a
number of years first at St. Louis, Missouri, and thereafter
for some years at St. Charles, Missouri, in the same
metropolitan area. Respondent's main office is located at
Bridgeton, Missouri, which is also located in the
metropolitan area of S . Louis.
For at least 15 years, the Union (or a local thereof) was
the collective-bargaining representative of Respondent's
foundry er..ployees at St. Louis and then at St. Charles,
while the Teamsters Union and the Machinists Union
represented other employees in. this operation. In 1961, the
Union was involved in a strike of several months' duration
at St. Charles, apparently economic in character, which
ended with the execution of a collective-bargaining
agreement having an expiration date of February 28, 1963.
References in the record to this strike indicate that it was
a difficult and bitter affair.
Prior to the expiration date of this agreement,
Respondent entered into negotiations with a commission
representing the town of Malden which resulted in
Respondent obtaining for its operations facilities owned by
the town of Malden, and previously used as a United
States air base About October 1962, Respondent sent Vic
Schoemehl, an official with experience in setting up new
operating facilities, to Malden where he proceeded to hire
new employees and to prepare the buildings and facilities
for the removal of Respondent's plant and operations from
St. Charles to Malden.
By letter dated December 26, 1962, Respondent advised
the Union and its local that, effective at the close of
business February 28, 1963, manufacturing operations at
the plant at St. Charles would permanently cease, and that
Respondent was terminating the collective-bargaining
agreement between the parties as of that date.
Practically all management and supervisory personnel
were transferred to Malden from St. Charles. Also among
the personnel brought from St. Charles, or other locations
where they were then employed, were a number of persons
who the General Counsel contends are supervisors, but
who Respondent asserts are leadmen, and not supervisors,
within the meaning of the Act. This issue is considered
hereinafter. For ease of reference these persons will be
referred to herein as "leadmen."
None of the rank-and-file production and maintenance
employees formerly employed at St. Charles (with the
Exh 3, Order of the Board dated October 7, 1965, in Case
14-RC-4904--TX Exh 4, a copy of my communication from Trial
Examiner to the parties dated December 14, 1965-TX Exh 5,
response of General Counsel dated December 17, 1965, to the
trial Examiner-TX Exh 6, response of Respondent dated
December 22, 1965, to the Trial Examiner-TX Exh 7, further
response of General Counsel, dated December 23, 1965, to the
Trial Examiner-TX Exh 8
z General Counsel's motion to correct the record, to which no
objection has been filed, has been granted, with certain
modifications, in a separate order together with certain
corrections in the record made on the Trial Examiner's own
motion A copy of the Trial Examiner's order together with a copy
of the General Counsel's motion are hereby received as TX
Exh 9
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible exception of the leadmen whose status as rank-
and-file production workers is in dispute) were employed
at Malden. Vic Schoemehl testified that the few employees
from St. Charles who applied for employment at Malden
were not hired. Respondent hired the employees needed
for its operations basically from the area around Malden in
accordance with its commitment to the town to give first
preference to persons in that area. It appears that this
resulted in the employment of a work force almost entirely
unskilled in Respondent's operations who were guided and
instructed by the personnel which had been brought in
largely from the St. Charles plant operations.
After the equipment at St. Charles had been dismantled
and key equipment installed at Malden, production first
began at the latter location in March 1963.
On July 12, 1964, employee John P. Battles at Malden
contacted representatives of the Union in St Louis. This
resulted in an organizing campaign among the production
and maintenance employees at the Malden plant during
which a substantial number of cards were signed for the
Union. A petition for representation was filed on July 27,
1964, by the Union, in Case 14-RC-4904.
This was followed, beginning on July 30, 1964, according
to the General Counsel, by a considerable campaign
opposing union representation engaged in by
management, supervisors, some of the disputed leadmen,
and other asserted agents of the Respondent. The General
Counsel contends that various actions complained of,
more than 80 in number, improperly interfered with the
conduct of a free and fair election among the employees,
and, together with certain other activities of the
Respondent, violated Section 8(a)(1) of the Act.
The General Counsel's complaint, as amended at the
hearing, also named 37 employees allegedly discriminated
against by Respondent because of their membership in or
activities on behalf of the Union, in violation of Section
8(a)(3) and (1) of the Act. At the close of the General
Counsel's case, the Trial Examiner dismissed allegations
that Respondent had discriminated against Carl D Barnes
and Robert L. Summers, for failure of proof.
On August 25, 1964, at a conference in the Board's
Regional Offices in St. Louis, the Respondent and the
Union executed a stipulation for certification upon consent
election, in the Board's normal form. This was duly
approved by the Regional Director. At this conference the
Respondent and the Union agreed that 22 listed leadmen
should be eligible to vote in the election, and these
leadmen voted without challenge. The General Counsel
contends in this matter that these leadmen, and two other
persons not named on the list, are supervisors within the
meaning of the Act, who would not be included in the
appropriate unit, and for whose actions the Respondent
should be held responsible.
An election was conducted by the Regional Director,
pursuant to the agreement of Respondent and the Union,
on September 21, 1964, among the employees on
Respondent's payroll at the Malden plant for the week
ending August 23, 1964. Among approximately 264 eligible
employees 257 persons appeared at the polls; 106 cast
votes for the Union; 143 cast votes against the Union; 6
were challenged, and 2 void ballots.
On September 23, 1964, the Union filed objections to the
election. Only the first objection, alleging that Respondent
through its agents, including merchants in the community
and the mayor of Malden, interfered with the election by
threats that the plant would move or that employees would
otherwise lose their jobs, is before the Trial Examiner. By
its Orders entered in Case 14-RC-4904, the Board has
also directed the Trial Examiner to consider, in addition,
whether other conduct alleged in the complaint, as
amended, in this matter interfered improperly with the
election conducted among Respondent's employees.
The General Counsel's complaint also alleges that, as of
August 23, 1964, the Union had been designated and
selected as the representative of a majority of the
employees in the appropriate unit for the purposes of
collective bargaining within the meaning of the Act and
that Respondent, by its acts and conduct, undermined the
Union and destroyed its majority support. At the hearing in
this matter and in his brief, the General Counsel requests
that the Trial Examiner, as part of the remedy for the
unfair labor practices alleged, order the Respondent to
bargain with the Union as the representative of the
employees in the agreed-upon appropriate unit, for the
wages, hours, and other conditions of employment of such
employees.
The Respondent in its answers to the complaint, as
amended, denies the commission of any unfair labor
practices. Respondent disputes certain of the alleged
conduct with which it is charged; asserts that other
conduct which is undisputed was not violative of the law;
and contends that it was not responsible for the actions
of the disputed leadmen, who the Union during the
representation case proceedings agreed were
nonsupervisory, and did not challenge at the election.
Respondent specifically opposes the remedy requested by
the General Counsel, asserts that the cards secured from
the employees are invalid; and relies upon the fact that at
no time has the Union ever requested the Respondent to
bargain with it as the exclusive representative of the
employees in the appropriate unit
B. Supervisory Issues
The parties agreed that, at times material to this
proceeding, the following were members of Respondent's
management or supervisors within the meaning of the Act
at the Malden plant, and it is so found- E. W. Bromwich,
president; R. A. St. Clair, executive vice president;
George R. McAlister, personnel director; Vic Schoemehl,
plant manager; William Donovan, assistant plant
manager; O. E. Waters, toolroom superintendent; Elmer
Schmidt, maintenance superintendent; Norman
Winchester, warehouse superintendent; Paul Gourley,
chief guard; Joseph Trost, inspection department
foreman, Charles Trost, superintendent
operations-building #2 (including replacement and
inspection departments); William Rich, foundry
superintendent; Don Kemmerling, Willis Dawson, and
Barney Huels, foundry foremen. It was also stipulated that
at material times Veryl L. Riddle, Esq., was attorney of
record for the Respondent.
1. The leadmen
As previously noted, the General Counsel contends that,
in addition to the persons named above, 22 listed leadmen
who voted without challenge in the representation
election, pursuant to the agreement between the
Respondent and the Union, are supervisors within the
STERLING ALUMINUM
meaning of the Act.:' In addition, he contends that
Leadman Roy Draper (listed on the voting list as James
Draper) and Al Fleshman, production control, were also
supervisors at the times material to this proceeding. These
latter voted without challenge at the election, but were not
specifically made part of the agreement on eligibility
between the Respondent and the Union.
After the conference at the Board's Regional Office on
August 25, the Union circulated lists stating 22 names
under the heading: "Leadmen as named By The Sterling
Al. Products Co. at the National Labor Relations Board on
August 25th 1964 as not a Part of Supervision and Eligible
To Vote In The Election on September 21, 1964." The
names of the undisputed supervisors were also set forth.
One copy was anonymously posted on a plant bulletin
board.4
Respondent contends that these persons in dispute were
not supervisors; that the Union's consent to their eligibility
was known to the Regional Director prior to his approval of
the parties' stipulation for the consent election, which is
urged to preclude Respondent's being held responsible for
the actions of these persons; and that the employees could
not have considered the actions of these persons as other
than the conduct of eligible employees, since the rank-
and-file employees were on notice of the Union's consent
to their eligibility.
After a close study of the entire record, the Trial
Examiner is convinced that the overwhelming weight of
the evidence requires the conclusion that these disputed
leadmen (with the exception of McCoy) and Al Fleshman
were, at the times material, supervisors within the
meaning of the Act, that they were so regarded generally
by the employees with whom they dealt, and that the
employees were justified in considering that these
individuals spoke for the Respondent in their opposition to
the Union.
It is noteworthy that, notwithstanding Respondent's
commitment to secure its personnel from the Malden area,
the leadmen, almost without exception, were brought from
St. Charles, as was the case with almost all of
Respondent's management and admitted supervisors at
Malden. With two or three exceptions, these individuals
had long periods (up to 40 years) of service with
Respondent before coming to Malden. Several of them
were supervisors at St. Charles. All of them were paid by
salary, at a rate considerably above the production and
maintenance employees who were paid on an hourly or
piecework basis, although considerably below the level of
acknowledged supervisors. Moreover the leadmen did not
punch a timeclock as did the production and maintenance
employees (sometimes herein called "P&M employees"),
although they kept time on their overtime work. Nor were
production records kept on the leadmen as was the case in
respect to the majority of the P&M employees.
The leadmen, as well as the acknowledged supervisors,
received a production bonus, apparently monthly, based
on the work performed by the P&M employees, which the
latter did not get. The leadmen also received hospital and
life insurance henefits on the same basis as admitted
'These are Presseley Aaron, Sr , Peter Aiello, Raymond
Blackburn , Elmer Bussick, Howard Craig , Iran DeNoon, Henry
Derso, Leo F Dudzik, Horace J Frost, James Gillham, Howard
Hart, Thomas LaChance (listed on the voting list as Thomas
LaChange), Henry Lepper, Charles McCoy, Mary Moraty, Elmo
Polk, David Randolph, Louis A Schwent, Harry Thudium,
Vernon W Wiley, Admiral Wilkinson, and John Windisch
Union Representative Bonifer testified that notwithstanding
307
supervisors and management, referred to by Vic
Schoemehl as the "St. Charles plan," which differed from
the benefits made available to the P&M employees.
Respondent's operations are shown by the record to be
fairly complex. The newly hired P&M employees were
unskilled in those operations, and required, therefore,
close supervision, instruction, and guidance. This was
supplied in large part by the leadmen, whom the
Respondent had brought to the area with its other
supervisors and management. The newly hired local
employees could not fail to be aware of this.5
The record shows that the leadmen, generally, attended
production meetings on a regular basis with acknowledged
supervisors. After the start of union activities in 1964, and
prior to the agreement that they might vote, the leadmen
also attended meetings with management and other
supervisors in which management activities in connection
with the Union and the progress of the union situation
were discussed. At these meetings instructions were given
as to what supervisors might legally do or not do during the
period before the election. It was only after the agreement
on their eligibility that Respondent separated the leadmen
from meetings of the other supervisors in regard to union
matters.
According to the credited testimony of Aiello (one of the
group of 22 leadmen, no longer employed by Respondent,
who appeared as a witness for the General Counsel), at the
first of these meetings including supervisors and leadmen
which he attended with respect to the union campaign, St.
Clair, executive vice president of Respondent, advised
those present that the Respondent was going to wage a
campaign and that they would be advised with respect to
procedures as time went by. Those present were told to
feel the P&M employees out as to what and how they felt
about the Union and discover which were for and which
against the Union. Those attending were also told by St.
Clair to tell the employees what had happened at St.
Charles. As Aiello testified, St. Clair stated, "Now, you
know what to tell the employees."
At another such meeting, St. Clair handed out lists of
employees to the persons attending (including admitted
supervisors and leadmen) and requested that they go down
the lists and mark those who they thought were for the
Union, against the Union, or undecided. This procedure
was carried out at this meeting and at other similar
meetings in connection with Respondent's efforts
opposing the Union.
At another such meeting Veryl Riddle, Respondent's
counsel, advised the leadmen that a conference had been
held between the Respondent and the Union, and it had
been decided that they were leadmen eligible to vote in the
election. As Aiello credibly testified, Riddle stated that it
was "his idea to ... make leadmen out of us so that we
would be eligible to vote at this union election and that our
status so far as foreman was concerned hadn't changed
whatsoever." It was stated that this decision accorded
with the Respondent's general policy of avoiding
unionization.
the Union's agreement on the eligibility of the leadmen to vote, he
remained of the opinion that they were supervisors, and so
expressed himself to various employees
5 Malden is a community of about 5,007 inhabitants (1960
census, World Almanac, 1966). As the record indicates, and the
Trial Examiner observed, the plant facilities at Malden are
located in an "industrial park" also containing residences in
which some employees as well as management live
295-269 0-69-21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilkinson, another of the leadmen no longer employed
by Respondent, substantially confirmed Aiello's
testimony. Wilkinson particularly recalled that one of the
leadmen at this latter meeting asked if the agreement to
make them leadmen would affect their right to fire or
discharge employees, if the situation required. The
leadmen were assured that their status and authority had
not changed.
At a final meeting, the group of leadmen were separated
from the other supervisors and St. Clair spoke to them
separately. Aiello recalled that at the final meeting, the
leadmen went down the list of employees again, noting
their opinion of the employees' position for or against the
Union, or undecided. St. Clair also told the leadmen that
they knew what to say and could use their own discretion
in talking to the employees about the election. They were
also told, "You know how to vote."
Both Aiello and Wilkinson testified that they advised
the employees of the Respondent's experience with the
Union at St. Charles. Wilkinson states that he told
employees, "under my jurisdiction," that he did not know
if Respondent would move from Malden if the Union got
in, but that "they had moved out of St. Charles on account
of the union."
While the duties and authority of the various leadmen
varied somewhat from department to department, they all
occupied positions in Respondent's operations on or about
the same level, as the evidence noted above shows." Of the
22 listed leadmen, it appears that only Charles McCoy had
no authority over any other employee at the times material
to this proceeding.
Among the leadmen, Howard Hart in the foundry
appears to have been particularly active in opposing the
Union and is alleged to have engaged in a number of
incidents, allegedly in violation of the Act. The evidence of
his duties and authority is considered indicative of the
status of the leadmen in dispute here.
A former employee testified that Superintendent Rich
introduced Hart to him as his foreman. Hart gave the
employees instructions and regularly assigned them to
their work. Hart would come in prior to the beginning of
the shift, as apparently many of the leadmen did, at least
in the foundry, and marked employee assignments up on a
status board in the office. Hart and other leadmen would
also remain after the end of the shift to check records of
production, and "see how good their crew was doing."
One employee testified that Hart "used to ride me
pretty strong .... He was on to people a lot. If someone
didn't do something right, he was pretty well fast to chew
them out." Another witness testified that he had been
discharged by Hart, apparently on Hart's own judgment.
Hart also advised other employees of orders that they be
laid off from work.'
It does appear that after it became known that the
leadmen would be able to vote in the election, Hart
became more restrained in his relation to the employees.
However, it is also clear that Hart continued to make
assignments of work as before. In fact, 2 or 3 days before
the election, Hart called the 10-12 molders on his shift
together in a meeting , on company time, to admonish them
to keep their production up and to speak in opposition to
the Union.
Aiello, whom Hart replaced on the first shift, and who
thereafter worked on the second shift in the foundry,
testified that he was a foreman at St. Charles and was
hired as a foreman for the Malden operation."
Superintendent Rich advised Aiello that he had authority
to discharge employees, which was confirmed by
Schoemehl on an occasion when Aiello sent two
employees home who had come in apparently under the
influence of alcohol. Aeillo placed men at their machines,
made out reports, and exercised responsibility for
operations on his shift.
The evidence indicates that the other foundry leadmen,
Frost, DeNoon, and Lepper, possessed similar duties and
authority.
In the so-called replacement department in building #2,
former Leadman Wilkinson testified that Respondent's
Vice President Graff offered him the position of foreman
at Malden. Wilkinson was informed by Schoemehl and
Donovan that he had authority to discharge employees.
Wilkinson assigned work, watched employees to see that
they did their work properly, and if not done properly, had
them do it over. While Wilkinson did certain setups and
adjustments, he did no production work himself, but
supervised production. He also made out reports on
activities on his shift.
The evidence shows that the other leadmen in the
replacement department (Aaron, Bussick, Craig, Draper,
Dudzik, Randolph, Schwent, and Windisch) occupied
positions similar to that of Wilkinson. Thus Charles Trost,
superintendent of the operation, identified Dudzik, Aaron,
Windisch, and Schwent as "individuals on the day shift
who were in charge of the departments." Leadmen
Bussick on the first shift was identified as having
responsibility for the work of two toolgrinders on other
shifts, as well as working himself. Superintendent Trost
identified leadmen as the supervising employees on the
afternoon and evening shifts. He also testified that the
leadmen reported on problems and machines down on
their shift, as well as on the employees and what they had
done wrong; that it was the leadman's responsibility to see
that the employees did their job correctly and kept their
work up, to instruct the employees and be sure they were
at their machines when they were supposed to be, to have
employees who were misbehaving removed from the
premises, and to recommend employees for discharge who
were not working properly. Superintendent Trost referred
to the leadmen as his trusted employees whose
recommendations carried weight with him.
The testimony of Foreman Joseph Trost reflects the
very considerable reliance placed on Mary Moraty in
dealing with employees in the inspection department. It is
clear that she responsibly supervised the inspection
8 In certain of his testimony Schoemehl , however, made the
point that Mary Moraty was paid a salary considerably less than
the other leadmen
' Former employee Ballard, in his testimony on another
subject , vividly revealed the position Hart held in the eyes of the
employees In describing the occasion of his signing a union card
for another employee, Ballard testified that Hart came into the
area as he was filling out the card , and he quickly gave the card
back to the other employee, who "took off running " The other
employee later brought the card back
8 It appears that the leadmen had to make new applications for
employment at Malden . Those applications which were noted for
the record showed applications for the position of "foreman," or
"assistant foreman " Some papers in the files of some of the
leadmen referred to them as "foreman" at Malden and, in
instances , at St. Charles Aiello was initially provided quarters
without rent at Malden together with Kemmerling, Hart,
Wilkinson, Donovan, and others.
STERLING ALUMINUM
employees, made work assignments, reported on
disciplinary infractions and regularly signed disciplinary
reports together with Foreman Joseph Trost. Trost told
employee Gale Hodges that Moraty had been given
supervisory authority "the same as he had." During his
frequent absences from the department, Trost told the
inspectors that Moraty would be in charge.
In the toolroom, Superintendent Waters testified (with
respect to Leadmen Blackburn, Gillham, LaChance, Polk,
Thudium, and Wiley) that he discussed with the leadmen,
individually, how the employees working with the leadmen
were doing, and stated that the leadmen would report on
employees and make recommendations concerning them.
Although Waters stated that he would look into these
matters himself, he further conceded that he gave quite a
bit of weight to what the leadmen recommended, "because
the fellow is working directly under a leadman, and he is in
the best position to tell." Waters instructed employee
Wages to take his orders from Leadman Gillham, in the
absence of direct instructions from Waters.
The remaining leadman, Derso, who was in building #7
at the times material herein, had authority in that
department to assign work, give orders to employees, and
check their attendance and their work. He was apparently
the only person in charge at that location.
The facts set forth more than adequately show a picture
of supervisory authority and responsibility inhering in the
leadmen." Although in some instances the leadmen
supervise small numbers of employees, possibly even one
employee on occasion, the authority to supervise remains
clearly marked, on the basis of the evidence. While the
leadmen are shown on occasion to do some of the work of
employees under their supervision, particularly for the
purpose of assisting with problems, it is clear that they do
not generally perform production work. Indeed, the
evidence discloses that even the admitted supervisors on
occasion perform similar work.
On the basis of the above facts and the record as a whole
the Trial Examiner finds that the leadmen named in
footnote 3 above (with the exception of Charles McCoy)
and Leadman Roy Draper are supervisors within the
meaning of Section 2(11) of the Act, and therefore should
be excluded from the appropriate unit hereinafter found
appropriate.
2. Production control manager
Al Fleshman, who is referred to in the record as
"production control," is assigned office space in the plant
office building, where, at the times material to this matter,
Plant Manager Schoemehl, Assistant Plant Manager
Donovan, the payroll clerks, and the telephone operator
were also located. Fleshman is salaried and at times has
direction of a clerical assistant.
It is Fleshman's responsibility to make sure that plant
production proceeds in accordance with the schedules
sent from Respondent's home office, so that Respondent is
able to furnish the product when required by the
customer. As stated by Schoemehl, "he had to see that the
schedule was enforced." In order to accomplish these
responsibilities, Fleshman spends most of his time in the
plant area. He is the first one to release production runs
through the foundry, which is the beginning of the
production process. He gives the foundry clerk
" While the evidence shows that Respondent grouped Charles
McCoy with the other leadmen, the record does not reveal that at
the times material to this proceeding McCoy had supervision over
309
instructions with respect to information to be placed on
the "status board." Fleshman quite often in the foundry
instructs the gate cutters and tells them what should be
cut in order to get the proper lot of production to the next
stage in processing. Fleshman was described by
Schoemehl as giving orders which determined the
sequence of production, stating that Fleshman
"determined what was to be made and when."
Fleshman performs no actual production work, but he
does make up cards to be placed on loads, and, on
occasion, physically moves loads himself in the plant.
However, Fleshman reports directly to the plant manager
and is not responsible to plant supervision which has
immediate direction of the P&M employees.
In addition, according to the testimony of Schoemehl,
considered hereinafter, employee Bob Batchelor was
terminated, as a result, in part, of complaints about his
work made by Fleshman.
Based upon the record the Trial Examiner finds that
Fleshman possesses authority and responsibilities of a
supervisor within the meaning of Section 2(11) of the Act,
and, in any event occupies a position which is properly
described as "managerial," with employment interests
quite distinct and separate from those of the P&M
employees, and should be excluded from the appropriate
unit.
3. Respondent's responsibility for activities of the
leadmen
Even if the leadmen ( and Fleshman ) did not meet the
technical requirements of a supervisor as defined in
Section 2(11) of the Act , it is clear that they are part of the
managerial complex in Respondent 's operations and were
treated by Respondent as such . Each of them was placed
by Respondent in a strategic position to translate to the
employees the desires and policies of management. The
leadmen (and quite probably Fleshman ) attended
production meetings with undisputed supervisors, and
were given the same instructions as to the legal limitations
on their conduct prior to the election as were given to the
undisputed supervisors . They were also instructed by
management to interrogate employees as to the
employees ' position in regard to the Union , and to spread
word among the employees of Respondent 's difficulties
with the Union at St . Charles leading to the removal of the
plant to Malden . In fact , the activities of the leadmen in
opposing the Union paralleled that of contemporaneous
activities of Respondent ' s management and undisputed
supervisors . In the circumstances , under well -established
principles , Respondent may be fairly held to be
responsible for the activities of the leadmen in opposing
the Union , N.L.R.B . v. Des Moines Foods, Inc., 296 F.2d
285 (C.A . 8); N.L.R .B. v. Solo Cup Co., 237 F.2d 521
(C.A. 8); N.L.R.B. v. Fiore Brothers Oil Co., 317 F.2d 710
(C.A. 2); see N.L.R.B. v. Mississippi Products , Inc., 213
F.2d 670, 672-673 (C.A. 5).
Respondent , however, points out that a considerable
part (but not all) of the activities of the leadmen occurred
after the Union had agreed to the eligibility of the leadmen
to vote in the election . Respondent argues that since it
would be improper for it to instruct an eligible voter as to
what he could or could not say at such a time, it should not
any other employee Nor does the evidence support the
suggestion that McCoy should be considered a technical
employee who might be excluded from the appropriate unit
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be held responsible for what the leadmen said and did in
opposing the Union.
Indeed, the Board has often held that "an employer is
not responsible for the antiunion conduct of a supervisor in
circumstances such as these, in the absence of evidence
that the employer encouraged, authorized, or ratified the
supervisor's activities, or acted in such a manner as to lead
employees reasonably to believe that the supervisor was
acting for and on behalf of management." See Hy Plains
Dressed Beef, Inc., 146 NLRB 1253, 1254; M & A Electric
Power Cooperative, Inc., 154 NLRB 540, 544; The Powers
Regulator Company, 149 NLRB 1185, 1188, enfd. 355
F.2d 506 (C.A. 7); Montgomery Ward & Co., Inc., 115
NLRB 645, 647, enfd. 242 F.2d 497 (C.A. 2).
However, Respondent' s argument clearly fails, because
Respondent did, in fact, urge and instruct the leadmen to
interrogate employees and report such information, and
otherwise advised the leadmen as to what they should do
and say in connection with the Respondent' s campaign
against the Union. Pursuant to these instructions, certain
of the leadmen are shown to have engaged in activities,
hereinafter considered, which carried out Respondent's
purposes, and for which it must be held responsible. SeeJ
& M Machinery Corporation, 155 NLRB 860; Powers
Regulator Company, supra at 1188 (employer responsible
for antiunion activity of Supervisor Liga, which had been
initiated by employer, notwithstanding Liga's inclusion in
unit); see also N.L.R.B. v. Elliott-Williams Co., 345 F.2d
460 (C.A. 7) (employer held responsible for activities of
supervisor who voted in election pursuant to agreement of
union and employer).10
C. Instances of Interference , Restraint , and Coercion
1. Activities of the leadmen-supervisors
Each of the following occurrences testified to by
General Counsel' s witnesses were undenied and are
credited (the findings reflect an evaluation of both direct
and cross-examination of the witnesses):
a. A week or two before the election, Howard Hart
asked employee Garland Pace how he was going to vote in
the election. Pace said he was going to vote for the Union.
b. About September 15, 1964, Howard Hart told
employee John Moore that Hart had recently talked with
Respondent's president, Bromwich, who had said that
Respondent would bargain with the Union for lower wages
than they were presently paying and then would move.
Moore replied that he did not see how wages could be any
lower.
c. About 10 days before the election Howard Hart
stated to Gaines Hodges, Houston Butler, and other
employees that if the Union was voted in the Respondent
would move, that he knew this to be so.
d. Two weeks before the election, Roy Draper asked
employee James Cook, "how the Union was doing?" Cook
answered, "OK, I guess." Draper replied that Cook ought
to know, because he had attended all of the meetings.
Draper further said, "Sterling wasn't going to take any bull
off this union or any other union"; he said, "it would close
its gates before they will take any bull off the union."
e. Shortly after employees started signing cards, when
it became generally known that the employees were
seeking union representation, Mary Moraty stated to
employee Gale Hodges that Respondent had left St.
Charles because of the Union; that there was nothing
bolted to the floor and the place could be moved pretty
easily; and that Bromwich would probably move it.
f. A week or two before the election, Mary Moraty and
her husband together talked to employee Gale Hodges.
While together, they told Hodges that when the plant was
moving from St. Charles, the union president was
engrossed in his own personal, private affairs, implying
that he was not interested in the fact that the plant was
moving, or that the employees were losing their jobs. At
another point in the conversation, Mary Moraty asked
Hodges what he expected to gain from the Union. After
Hodges replied, Mary Moraty stated that "at the next
place maybe the hunting and fishing would be better.""
g. In talking to a group of employees, including Troy
Clayton, 2 or 3 weeks before the election, Howard Hart
stated he had belonged to a union; that it was no good and
a dead expense; that it would get the employees nothing.
He further said, "They wouldn't and couldn't operate if a
union came in they would move and everybody would be
without a job."
h. In another conversation about 2-1/2 weeks before the
election, Howard Hart told a number of employees,
including Larry Golden and Clair Bullard, that
Respondent had this same Union at St. Charles and that
the Union was one reason the plant had moved from St.
Charles.
i. About 3 weeks before the election, employee Gary
Burrow was talking with a group of employees about the
Union when Ira DeNoon came up. DeNoon asked Burrow,
"Well, how do you feel about this union coming in here?"
Burrow answered, "If it was to come in tomorrow it
wouldn't be too soon." DeNoon replied, "You mean you're
for it?" When Burrow answered in the affirmative,
DeNoon said, "Well don't you know Sterling might move if
the Union comes in." Burrow answered indicating that this
made no difference to him.
j. Employee Joe Butler testified that Howard Hart
discussed the Union with the employees practically every
morning during the 3 weeks before the election. On one
occasion Hart stated that he knew all of the employees
who had signed union cards. On another occasion Hart
stated to a group of employees that if the Union won the
election the plant would move out; that it would be like it
was at St. Charles; that Respondent had moved out from
there.
k. About 3 weeks before the election Roy Draper in a
conversation with Billy Joe Walker asked if Walker had
signed a card for the Union. Walker said that he had not.
10 Respondent relies on N L R B v Montgomery Ward and
Company, supra, and N L R B v Jas H Matthews, 156 F 2d 706
(C A 3), in support of its argument that the Union's consent to the
leadmen 's eligibility in the election estops the Board from holding
Respondent responsible for their activities However, the
Montgomery Ward decision not only does not support
Respondent's position, but indeed, was interpreted by the court in
NLRB v Elliott-Williams Co , supra, as supporting
responsibility of the employer in these circumstances While the
Jas H Matthews case, though possibly distinguishable, does
afford the Respondent some support, the later cases have not
followed it, and, with all due respect, I must decline to do so See
also, Bauer Welding and Metal Fabricators, Inc , 358 F 2d 766,
footnote 2 (C A 8)
" During the course of this conversation, and prior to the last
remark of Mary Moraty, she had occasion to temporarily leave
Hodges and her husband In this interval Moraty's husband
informed Hodges that the Respondent had four places they could
move to, including places in Arizona and Arkansas Although this
comment cannot be considered as binding upon Respondent, the
Trial Examiner has considered it as casting light on the meaning
of Mary Moraty's remarks
STERLING ALUMINUM 311
Draper asked Walker if he was going to vote for the Union;
Walker avoided an answer. Draper said that if the Union
won the election the Respondent would move. Walker
states that he replied "let them move." After the election
Draper again asked Walker how he had voted.
1. About 3 weeks before the election Walker also had a
conversation with Elmer Bussick concerning the Union.
Bussick asked Walker if he had signed a card and Walker
told Bussick that he had not. About a week later Bussick
again asked Walker if he had signed a card and Walker
stated that he had. Bussick said that if Respondent lost the
election it would move.
in. Alvin Albright testified that on an occasion before
he signed a card, Roy Draper asked him how he felt about
the Union. Draper said that if the Union did come in,
Respondent would move and added that this was the
reason they had moved from St. Charles. Albright testified
that on other occasions Draper said approximately the
same thing to him. Draper said that Respondent had other
places in Arkansas that it could move to if the Union tried
to get in, mentioning that these were places that had right-
to-work laws. Albright also recalled an instance a day or
two before the election during which Draper stated "that
Sterling doesn't need a union now, that they are not ready
for it, that they are going to move if they did have one."
n. Before the election and after he had signed a union
card, Larry Dale Barnes had a conversation with Howard
Hart, during which Hart said, "Larry I, hear you are
supporting the Union." Barnes replied, "It could be, you
can never tell." Hart then said, "Some of you God damn
bastards are going to be sorry you ever heard of this union
stuff."
o. On another occasion prior to the election, Howard
Hart called all of the 10 or 12 molders including Larry
Barnes and Jerry O'Neal into the foundry toolroom and
talked about the Union and the election. He also stated
that Respondent had moved from St. Charles and that they
would move from Malden.
p. Henry Derso in the latter part of July or first of
August 1965, in a conversation with Archie Batchelor,
asked Batchelor if he had signed a union card. Batchelor
said this was not Derso's concern. Derso stated he did not
think that Batchelor should sign a card.
q. One night before the union meeting held in Bernie,
Missouri (July 23), Howard Craig asked Jimmie Brandit if
he knew about union cards being passed around the
building. Brandit replied that he did not know much about
it. Craig said, "Well we have a record of who is signing
those cards."
r. Employee Clair Bullard testified that, on two
occasions about 2 weeks before the election, he heard Hart
make statements about the Union and the election in the
presence of a number of employees. Hart said that if the
employees were going to get a union, they should get a
good union. He said that the Union involved here was a
bankrupt- union and was for a different type of molding
altogether. Hart said that Vic Schoemehl had been in St.
Charles and had tried to get the employees a raise, but
when he found out about the Union he just dropped the
subject. Hart said that if the employees had any problems,
they should be taken to Vic, who would discuss anything
with the employees and do anything for them. Hart stated
that he felt the employees owed it to Vic to vote the Union
down, and if the employees did so he felt it would be worth
their while. In this connection Hart mentioned the sum of
25 cents an hour, which he said was a possibility. Hart
stated that he knew Bromwich personally, that he was not
the type of person that would give anyone anything. Hart
said if the Union got in, Bromwich would let the employees
have an election, but that when the employees came up
with the contract, Bromwich would negotiate for a cut and
if the employees did not accept this he would close the
doors. Hart went on to say that Bromwich had closed down
because of a union once before. Hart said that even while
the trucks were being loaded at St. Charles, the union
representative was telling the men that Respondent was
not going to move.
s. Approximately 2 or 3 weeks before the election,
employee Jimmie Cowell asked Howard Hart if the plant
would move if the Union came in. Hart replied, "I know it
will." Cowell told Hart that he was uncertain what he was
going to do about the Union. Hart told Cowell, "I've got
you marked down for a no vote."
t. On another occasion, Jimmie Cowell testified that he
asked Hart if the latter thought the employees would get
more money if the Union came in. Hart replied that he
didn't know, but added that he was "pretty sure," or knew,
that Cowell would be making better than $2 an hour if the
Union didn't get in.
u. Howard Hart, 3 weeks to a month before election,
stated to employee Billy Fry and others that if the Union
came in it would get no more than one contract with the
Respondent, if it got that many.
v. In August, on an occasion involving Howard Hart,
Henry Derso, and employees Billy Fry and Dale Tanner,
Howard Hart stated that he had thought he just about had
Fry talked out of voting for the Union. Hart further said,
"he ain't been worth a shit since he signed the union
card." Hart suggested to Derso, "Hell, go ahead and put
`vote no' on the back of his shirt." Derso then wrote "Vote
No" in letters two inches high on the back of Fry's shirt, in
letters which were indelible and would not wash out. Fry
wore this all day at work, including a meeting called by
Superintendent Rich to read a statement about the Union
from Vic Schoemehl to the employees. Fry testified that he
was embarrassed in front of the other employees at the
meeting because of the writing on his shirt.
w. In late July 1965, "after the card signing had taken
place," Henry Derso told Leo Kuper that he had "a little
personal question I want to ask you." Derso then asked
Kuper if he had signed "one of those cards?" Kuper
replied that he would rather not discuss it.
x. About the first of December, Kuper heard Henry
Derso state in the presence of other employees, "Boys,
this is really something the way these people from Saint
Charles, who used to work for us up there, calling in to find
out when this thing goes in so they can come and get jobs
here." There is no evidence that any former employees
were in fact, calling in. The record does indicate that this
possibility was a tactic used to raise apprehension among
the employees that a union victory would imperil their
jobs.
y. In the first part of September, Leo Kuper heard
Henry Derso state in connection with the Union coming in,
that it would be a "cold day in hell," and that the
employees would be seeing the former employees from St.
Charles coming to Malden to take their jobs if the Union
got in.
z. In August 1965, Henry Derso called employee Billy
Poyner into Derso's office. Derso told Poyner that the
Respondent had held a meeting and "they had all the
names that signed union cards." Derso told Poyner that if
he voted "Yes," he would be fired. Derso thereafter
repeated this to Poyner on a number of occasions. On at
least one occasion another employee, Jim McMillian was
present.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aa. On an occasion before the election, Henry Derso
had a conversation with employee Charles Williard
Walker in which Derso asked Walker if he were going to
vote for the Union. After Walker replied in the negative,
Derso asked Walker if he knew what would happen if
Walker did vote for the Union. Walker said no.
Whereupon Derso replied, "You get fired." Walker
apparently paid particular attention to the statement of
Derso because, as Walker testified, he "couldn't hardly
afford to lose my job. If I did, I would lose everything I
have."
bb. About 3 weeks before the election, in a
conversation in Derso's office, Derso told employee Jim
McMillian that he had previously had experience with the
Union in St. Louis and at St. Charles, and that it was best
not to vote for the Union. He asked McMillian which way
he was going to vote, to which McMillian answered that he
didn't know.
cc. In a conversation with Henry Derso, with Jim
McMillian present, employee Darrell Hyde asked Derso
what he thought the Respondent would do if the Union
came in. Derso replied that he knew what Respondent
would do from what they had done at St. Charles; Derso
said Respondent would move out overnight if the Union
came in.
Hyde had a further conversation with Derso after the
election in which Derso asked if he were "one of the Yes
men for the Union." When Hyde replied that he was,
Derso indicated that he knew this and treated the matter
in a laughing manner.
dd Employee Jerry O'Neal testified to a conversation
with Howard Hart shortly after O'Neal signed a union
card. Hart asked O'Neal if he had signed a card. Hart also
talked to O'Neal in opposition to the Union and its
practices and stated that if the Union came in, within a
year's time O'Neal would not have a job. Hart stated that it
made no difference to him whether the Union came in, that
he would still have his job, but that O'Neal would not.
ee. Two or three weeks before the election, Howard
Craig had a conversation with employee Herbert Rackley
at which employee Jackie Cooper was present. Rackley
asked Craig if the plant would move if the Union came in.
Craig stated that it might; that he didn't know whether
Respondent would take him with them if there was a
move; and that Respondent had an offer of a place they
could go. Rackley also testified that Craig stated that if the
Union came in, the employees would not have as many
rest breaks as they had then.
ff. Prior to the election, Admiral Wilkinson had
conversations with Buford Schrader in a plant office, and
with other employees elsewhere, in which Wilkinson, in
response to questions from the employees as to what the
Respondent would do, stated that he didn't know whether
Respondent would move out of Malden if the Union got in,
all he knew was that Respondent had moved out of St.
Charles on account of the Union.
gg. On the day of the election, Henry Derso asked
Buford Batchelor how he had voted in the election.
Batchelor told Derso this was none of his business. Derso
laughed and replied, "You are one of those Yes men."
12 All of the documents have been carefully considered Much
of this is clearly protected free speech However, the discussion
herein of only certain aspects of these documents should not be
taken as a finding that other aspects are not relevant to the
allegations of the complaint. In the interest of space only the most
obvious points have been touched on
Batchelor again indicated this was no concern of Derso, to
which Derso answered, "I don't give a damn."
hh. About August 20, 1964, in the presence of employee
Larry Albright, Howard Hart asked employee William
Buchanan if he had signed a card for the Union. Buchanan
stated that he had not. Hart replied, "If you are smart you
won't." Buchanan asked Hart the reason for this and Hart
replied, "Well, the Company is not going to stand still for a
Union coming in." Hart further stated, "Albright signed
one and he may not have a job."
One or two weeks before the election, Howard Hart
asked Buchanan who the latter thought had signed cards,
and when Buchanan said he didn't know, Hart named
employees who he thought had signed, among these
were Larry Barnes, Clair Bullard, and John Moore.
On the basis of the record in this case, it is clear and the
Trial Examiner finds that the acts described above
interfered with, restrained, and coerced Respondent's
employees in the exercise of their rights under Section 7 of
the Act and thereby violated Section 8(a)(1) of the Act.
2. Written and printed material opposing the Union
Approximately 13 letters to the employees from
President Bromwich and Plant Manager Schoemehl and
certain clippings from the Malden newspaper, the Malden
Press-Merit, opposing unionization of the Malden plant
were received in evidence. Authenticity of the material
appearing in the newspaper accounts attributed to
Bromwich was stipulated, as was Respondent's
responsibility for the advertisement which appeared in the
Press-Merit on September 17, 1964.
These documents span the period from July 30, 1964, 3
days after the filing of the Union's petition for an election,
to September 24, 1964, 3 days following the election.
Taken as a whole, and assessed particularly in light of the
plant atmosphere in which they appeared (some of which
is set out in the preceding section of this decision), this
material constitutes a campaign well calculated to make
the employees fear for their livelihood if the Union were
voted into the plant.' 2
The first of these documents, the letter from President
Bromwich to the employees, issued July 30, 1964, is a
thinly veiled "opening gun" in Respondent' s campaign
against the Union. Ostensibly occasioned by a drop in
production and increase in scrap (defective work), the
internal evidence of the document itself, as well as the
following events, shows that this was but the pretext
furnishing the springboard for the antiunion campaign.
Thus, though Respondent apparently had experienced
some problem with production and scrap for several
months'13 this letter, issued immediately after the filing of
the union petition, was clearly Respondent's first major
effort to jack up the employees on this score. Not only is
there no evidence of any prior communication to the
employees in so harsh terms, but the letter itself
announces a departure from Respondent's prior practices.
Considering the fact that President Bromwich, in this
letter , asserts that these problems had resulted in "terrific
losses for the months of April, May and June," it is
difficult to understand why such a letter to the employees
13 Contrary to General Counsel's contention that there is a lack
of evidence of a preexisting problem with scrap, the record shows
that for a number of months Respondent had been holding
supervisory meetings to deal with production and scrap problems
STERLING ALUMINUM 313
on the problem, if one was called for at all, was delayed to
the end of July. The conclusion is compelling that this
communication was engendered by the filing of the union
petition.
The contents of this rather long letter, which sets the
tone followed in the succeeding antiunion campaign,
concentrates mainly on the theme that the Respondent
was considering moving its operations, with consequent
loss of jobs to the employees.
Thus, after pointing out Respondent's past beneficence
and concern for the employees and the community, the
employees are admonished that:
... unless these conditions [stated low production]
are corrected immediately, it will be necessary for us
to transfer the Malden operation to our other plants.
Just bear in mind we cannot pay for work not done
and there is no one alive that can compel us to do it14
... we would like to continue to operate in Malden
and become part of the community, but we cannot, for
economic reasons, continue to operate in Malden
unless we have your full cooperation.
this letter . . . does not intend to criticize those
loyal, energetic, hard working employees who are
producing to adequate levels. I hope it will be possible
for us to continue to operate in Malden and those of
you who are doing your Job will be with us for many
years.
The letter advises, in addition, that plant management
had been instructed to move quickly to correct "declining
production" 15 and to begin enforcing Respondent's rules
and regulations without favor. The employees were
henceforth to strictly abide by plant rules. It was stated
that records would thereafter be kept of employee
performances, and that "where inadequacies exist in
individual production, you will be advised"; and that, if
production levels were not met, "you can guess the
consequences."
In Respondent's next letter to the employees, signed by
Bromwich and dated September 2, the employees are
reminded that Respondent had spent $600,000 moving its
operation to Malden, and the employees are requested to
prove "your loyalty to your family, yourself, your
community and your company," by rejecting "outside
interference."
The following day, September 3, the Press-Merit,
carried an article which stated that previous to
Respondent's move to Malden, the Union had hampered
production at St. Charles by a prolonged strike and threats
of walkouts at St. Charles, and quoted Bromwich as saying
that "we had trouble with this union at St. Charles, and I
hope the good employees at Malden will not subject
themselves, the company and the community with this
type of uncertainty."
Oddly enough, this identical quote was repeated in
Press-Merit accounts in each issue for the following 2
weeks, always in a context of the strike at St. Charles and
the move of the operation from St. Charles to Malden.
The next day, February 4, the employees received a
letter concerning the election from Schoemehl in which,
inter alia, they were advised that it was up to them to
decide whether the Malden operation was to survive and
be successful, and whether their jobs be secure, so that
the employees' families would be supported and "we can
go ahead together." The letter further suggested that the
Union would be costly to the employees in terms of dues,
assessments, fines, and from losses attendant on strikes.
In return, the letter states, "The Union cannot benefit
you !" It was suggested that if the Union, to get the
employees more money, "really increased the cost of
pistons here the way they promise to do" (obviously
Respondent's interpretation), then business would be lost,
and there would be "no jobs and no wages." The letter
quite clearly suggests that the issue which the employee
will answer at the election is "whether there really
continues to be a Sterling Aluminum Products Company."
It is indicated here, as more strongly suggested thereafter,
that this depended upon a vote against the Union.
Between September 2 and September 17, Respondent
issued eight one-page documents to the employees, each
entitled "SOMETHING TO CONSIDER," and each signed
"Vic" (Schoemehl), urging the employees to vote "No."
Each emphasized some aspect of the idea that the
employees did not need the Union or might be harmed if
the Union were voted in. Among the statements in these
documents, the following may be noted:
Think back ! What were you doing before Sterling
arrived in Malden? Where were the "Johnnys come
lately" (Carducci and Bonifer) when there were no
jobs at the Airbase?'s What would you be doing if
Sterling was compelled to close?
VOTE No
We are sorry our employees, or their families, needed
Surgical or Hospitalization care, but isn't it a great
thing the Company had such a plan available?
Don't Rock the Boat.
VOTE "No"
* *
Did you know there are 39,000 people in Dunklin
County?
The Missouri Division of Employment 'Security
advised us that 20% of the employable industrial
workers are unemployed in this County.
Strikes, work stoppage and quits can only add to this
already high unemployment.
VOTE "No"
*
I refer you to Mr. Bromwich's letter-that it isn't the
Union that will get you or me more money, it your's
'This latter sentence appears clearly occasioned by
knowledge of the union petition, which had just been filed, and
reinforces the conclusion that the letter was a response to the
employee's seeking union assistance.
15 However , as noted hereinafter , Respondent also asserts that
July marks the period of its normal seasonal decline in
production
i6 Carducci and Bonfier were the representatives of the Union
prominent in the campaign to organize Respondent 's employees.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and my individual production which will increase
profits that will get us raises.
Look this over with your family . These earnings and
benefits are yours from the Company-not from any
outsider.
VOTE "No"
This series of letters ends with the admonition, "VOTE
No for yourself, your family, the Malden Community, and
your Company."
During this period, on September 10, in the Press-Merit,
under a heading, "STERLING OFFICIAL SAYS UNION MADE
PLANT AT ST. CHARLES UNPROFITABLE," the following
points were attributed to Bromwich, (1) he was not only
surprised but shocked that the employees showed interest
in the Union, (2) Respondent had spent $600,000 to move
from St. Charles to Malden, (3) this was a deal between the
Respondent and Malden for the benefit of Respondent and
the residents, and the Union had no part in it, (4) as a
result, local residents earn more than $1,200,000 a year,
(5) Respondent moved to Malden because union demands
made the St. Charles operation unprofitable. It was again
stated that Bromwich "mentioned" the 4-month strike at
St. Charles "which brought about loss of pay for
employees, loss of customers, loss of profit, and the
ultimate loss of jobs." Then follows the quotation which
had previously appeared in the September 3 issue of the
paper, noted above.
The following week, on September 17, the Respondent
placed the following full page appeal to the whole
community in the Press-Merit:
AN APPEAL To MALDEN
Two YEARS AGO WE CAME TO MALDEN AT THE
URGENT INSISTENCE OF YOUR COMMUNITY LEADERS.
WE WERE TOLD THAT MALDEN NEEDED INDUSTRY.
WE ACCEPTED YOUR APPEAL TO US.
Now WE ARE HERE AND WANT TO ST: Y. HELP US
CONTINUE TO HELP YOU.
LET'S SEND THE UNION ORGANIZERS FROM OUR
COMMUNITY AND GET ON WITH OUR MUTUAL GROWTH
AND PROGRESS.
STERLING ALUMINUM
PRODUCTS, INC.
On the same day in another front-page story, the Press-
Merit again noted that Respondent had moved to Malden
after "a prolonged strike and threats of strikes had
seriously hampered production there." The quotation from
Bromwich previously noted was again repeated. The
article also noted that the Union had that week received
the endorsement of Local 593."
Also on the same day, a letter to the employees was
issued over the signature of Bromwich, which stated, inter
alta:
I want to state positively and emphatically, that the
Union cannot cause your wages to be increased one
single penny. Of this, you can be certain. Any
increase in wages, now or any time in the future, will
depend solely upon the amount of business we can
'7 This was publicized in a full - page ad taken in that issue of the
paper signed by Local 593, ILGWU
'" The Trial Examiner considers it unnecessary to consider the
legal effect of Bromwich 's announcement of pleasure to the
employees and the community after the election
" Evidence as to Respondent loading an oven on a truck and
get, the production at Malden, and other typical
business considerations. We are and will continue to
pay our employees as much money as these business
considerations will allow. Again, the Union can do
nothing for you to increase your wages.
Your company suffered heavy losses at the St.
Charles operation because of shut down by the Union.
The move to Malden was made after great
deliberation and consideration of other equally good
plant sites. I am advised that the majority of you and
the majority of the people of Malden appreciate our
decision to move to Malden. This move can and I am
sure will be mutually beneficial after the "start up"
problems have been worked out of this operation
Up to now, Sterling has been pleased with tms
move to Malden even though unprofitable to date.
Continue to help Sterling help the Malden area
economically and vote "No" Monday, September 12.
The Trial Examiner has no doubt that the employees
were entitled to know, and that the Respondent had a
right, in good faith, to tell the employees why the
Respondent moved from St. Charles. Free access to
information is indispensable to free and informed choice.
However, the Trial Examiner also has no doubt that the
campaign set forth above was designed not to inform, but
to coerce the choice to be made, and, in the context in
which it occurred, served to drain both meaning and
substance from any concept of the exercise of "freedom of
choice" by Respondent's employees. It is found that by
the campaign set forth above (excepting such items in the
Press-Merit for which it was not shown to be responsible)
Respondent violated Section 8(a)(1) of the Act.'"
3. Activities of admitted supervisors
William DonovanAssistant Plant Manager: The
following testimony is undenied and is credited:
1. Mrs. Beulah Harris, the wife of an employee,
testified to a conversation with Donovan, whom she
described as a good friend of her husband and herself,
which occurred approximately 2 to 3 weeks before the
election at a tavern in Malden. Mrs. Harris asked Donovan
what was "going to happen out there with the election."
Donovan said, "I don't know I know this much, if they
vote it in, the company is going to move ... in fact we have
moved part of our equipment to Atlanta, Georgia, and we
have more loaded on the trucks ready to go." When Mrs.
Harris protested that this would be expensive, Donovan
replied that, "It wouldn't be much expense . the
company owns its own trucks ... we could be moved
within the week."i"' Mrs. Harris, as might reasonably be
expected, related this conversation to her husband.
2. Employee Melvin Stewart testified that a week or two
before the election, he had a conversation with Donovan
about the Union, also in a local tavern. Stewart asked
Donovan if he thought the Respondent would move
Donovan answered, "I can't say, but they moved from St
Charles." Under the circumstances of this case, this
remark would certainly tend, as Donovan knew, to add to
the apprehension that a vote for the Union would increase
the chances that the plant would be moved and the
employees lose their employment.2u
moving it out of the plant just before the election and back again
after the election is discussed hereinafter
20 General Counsel also contends that Donovan told Presseley
Aaron, Jr , that the plant had previously moved because of the
Union However, the Trial Examiner finds that this allegation was
not supported by probative evidence
STERLING ALUMINUM 315
It is found that the above activities constitute violations 8. Terry Allen testified that when he and employee
of Section 8(a)(1) of the Act. Mekan were working together the latter called Trost over
Charles Trost-Superintendent of Operations, Building
#2. Employee John David Battles testified, without
contradiction, that about 2 or 3 days before his father (John
P. Battles) was laid off he went to see Superintendent
Trost because of certain comments by Leadman David
Randolph about his work, which John David Battles
thought were undeserved. He asked Superintendent Trost
why he was being "ribbed for not working." Trost replied
that, "They have you pegged for being Union."
Thereupon, John David Battles told Trost that "they must
have me and my dad mixed up." Trost said he would talk
to Vic about this. John David Battles thereafter saw
Superintendent Trost get in his car and leave. Battles
testified that Trost drove up to the office. About an hour
later Superintendent Trost came up to him at work and
told Battles, "Everything is all right. We have it
straightened out." Randolph later told John David Battles
that if the matter had not been straightened out, Battles
would have been quickly terminated.
It is found that by these activities of Trost and
Randolph, Respondent violated Section 8(a)(1) of the Act.
Joseph TrostForeman Inspection Department
1. Employee Gale Hodges testified that Foreman Trost
asked him if he had signed a union card. Hodges asked if
Trost expected an answer, to which Trost replied, "No,
you don't have to with that smile on your face."
2. Gale Hodges testified that after union meetings on
Sunday, Trost on Mondays at work would ask what
happened at the meetings. Hodges testified that he had no
hesitation in informing Trost of his own involvement, and
told Trost of the number of employees attending meetings,
but did not tell him names, nor did he remember Trost
asking for names.
3. Junior Kildow testified that Trost asked him, at his
workbench, what Kildow thought of "the Union deal."
After a noncommittal answer from Kildow, Trost said that
"they would move if the union got in."
4. On another occasion, Junior Kildow states he had a
conversation with Trost on the shipping dock at the plant
during which Trost told Kildow about "all of the troubles
Respondent had with the Union at St. Louis."
5. In August 1964, during the pendency of the
representation proceeding, according to the undenied
testimony of Kildow, Nettleton, Rose, and Hodges, Trost
suggested to the employees that they appoint a spokesman
to carry their grievances to management, and, in fact,
assembled the employees in his office for that purpose.
With Trost out of the room the employees appointed
Kildow their spokesman. Trost told Kildow that this was
done at the suggestion of Schoemehl. It does not appear
that any grievances were ever presented.
6. Patsy Kildow, Junior Kildow's wife, testified that
prior to the election she had a conversation with Trost in
an eating place in which she was a waitress, in which Trost
asked her if her husband was going to vote for the Union.
Mrs. Kildow stated she did not know, but she surmised
that he would do so. Trost replied that, "if it gets in, we'll
move," and named a location in Arkansas to which the
plant would go.
7. After the election, Mrs. Kildow testified, Trost asked
her how her husband had voted. He stated "that's too bad
for Junior," when she indicated that her husband had
voted for the Union. Mrs. Kildow testified that she related
both of these conversations to her husband.
and complained that another employee was bothering him
and trying to talk him out of voting for the Union. Allen
stated that Trost replied that he was not going to try to tell
them how to vote, but added, that he did not want to move
again. Mekan testified that the only thing he recalled
hearing Trost say about the Union while he was working
with Allen was that Trost liked this part of the country and
would not want to leave.
9. Robert Barnett testified that before the election he
had a conversation with Trost, with employee Grady Davis
present, in which Trost stated that if the Union came in the
plant would probably move. Grady Davis testified to an
occasion when he asked Trost about the election. Davis
stated he told Trost that the employees had heard that if
they "voted it, `it' [clearly referring to the plant] would
move." Trost replied that this was what he had heard,
"that it would move if it were voted in." David also
testified that Trost told him, "I could be my own judge on
how I voted and my own boss," and that Trost didn't talk
against the Union or didn't talk "for it," so far as he was
concerned. Davis testified contradictorily as to whether
Trost specifically asked him, on this occasion, how he was
going to vote. Davis, however, understood that this was
what Trost wanted to know, for he told Trost he was not
going to vote for the Union.
10. Andrew Loafman testified that Trost asked him to
work on the Sunday preceding the election. When
Loafman demurred, Trost said, according to Loafman,
"That's Okay. I know where you are going you can take off
anyhow. I know you are going to the fish fry. I know
everyone who is going." A union leaflet had been
distributed announcing the "fish fry."
In Trost's testimony, he denied that the Union was
involved in any of the conversations with Hodges, Junior
Kildow, Mrs. Kildow, Mekan, and Loafman. He was not
asked about conversations with Barnett or Davis.
Trost recalled a conversation with Kildow on the loading
dock and with Mrs. Kildow in the restaurant, but asserts
that these conversations had to do with getting her
husband a transfer of shift and possible promotion. Trost
stated that he told Mekan and a number of other
employees that he liked "this country here" and did not
want to leave, but denied any conversation with Mekan
about the Union. Trost testified that it was possible that he
asked Loafman to work Sunday and that Loafman had said
he would rather not. However, Trost denied that he made
any inquiry about the fish fry. Trost further testified that
when he was asked by employees how they should vote, he
would tell them to use their own judgment.
The tenor of Foreman Trost's testimony, generally, was
that, with the exception of George Rose, he was not aware
which of his employees favored the Union. He admits that
he was present in meetings with other supervisors in
which names of employees were checked off with respect
to their union inclinations. He states he went down the list
himself, and made such checks. He stated that he checked
George Rose and "very few" others for the Union. He also
testified that Moraty talked to him about who she thought
was for the Union or against it. However, the only name
Trost states he could recall was George Rose.
It is difficult to believe that Trost was as insulated from
the issue of unionism in his department as his testimony
would indicate. The matters attributed to him by the
various witnesses were not only mutually corroborative,
but accorded with the clear pattern of Respondent's
antiunion activity. Employees Allen, Mekan, Barnett, and
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis were still working for Trost at the time of the
hearing, and generally appeared under some constraint in
their testimony. Junior Kildow had quit his employment
with Respondent, was not a subject of any charge against
Respondent, and was working elsewhere
Among these witnesses, Gale Hodges was particularly
impressive, both in the nature of his testimony and his
demeanor. This was not true of Foreman Trost whose
testimony was at times evasive, vague, and uncertain. In
these circumstances the Trial Examiner discredits
Foreman Trost's testimony as to the matters set forth
above and credits the witnesses for the General Counsel.
It is therefore found that by the activities of Foreman Trost
set forth above (with the exception of paragraph 4),
Respondent interfered with, restrained, and coerced
employees in the exercise of their rights under Section 7 of
the Act and thereby violated Section 8(a)(1) of the Act.21
R. A. St. Clair-Executive Vice President: The following
testimony is undenied and is credited:
1. Presseley Aaron, Jr., who appeared to be a reluctant
witness for the General Counsel, testified that he heard St.
Clair make two speeches concerning the Union, one
occurring 2 or more weeks before the election, the other
shortly before the election. Aaron indicated that St. Clair
showed a large book which was identified as "the laws"
Respondent could use "to protest against the union before
the election, like the union talks for it and they talk against
it. He said they would have to abide by them." After
having his recollection refreshed from a prior statement,
Aaron testified that St. Clair "got on the box and told us to
be sure and vote regardless of what way we voted. He
showed us the book of rules and told us that the companies
were moving every day because of the unions. He did state
clearly he did not say Sterling was going to move. As a
matter of fact, he pointed out he has not indicated that, but
he said it has happened." Aaron stated that he could not
remember anything else about the speeches.
2. Troy Clayton testified that in the speech he heard St.
Clair give on a Saturday before the election, the latter said
that Respondent had anticipated giving everyone a raise,
but that because "this union deal came on," his hands
were tied and he could not, that "the union never made or
got anybody anything" but imposed "penalties and fines";
that they had nothing to do with whatever had been gotten;
and that if the employees "would let the union alone and
stick with me, we would all get rich."
3. Roy Kennedy testified that he was in a group of
warehouse employees to whom St. Clair gave a speech on
the Thursday or Friday preceding the election. Kennedy
testified that St. Clair stated he knew the employees were
trying to get a union. He stated that the employees did not
need a union; that although the union could promise more
money, the Union could not give the employees more
money; that only the Respondent could give the employees
21 It has been noted that Grady Davis testified, in effect, that
Trost's comment did not seem to him to be for or against the
Union However, it is well settled that where the reasonable
tendency of the Respondent's action is to interfere with the
employees' rights, a violation is made out, notwithstanding the
alleged response of any employee to that action See N L R.B v
Ford Brothers, 170 F 2d 735, 738 (C A. 6, 1948) In any event, it
may be noted that Davis' reaction to the conversation shows that
he felt an apparent necessity to assure Trost that he would vote
against the Union In addition, the Trial Examiner has considered
that Trost's statement to Davis that Trost had heard that the plant
would move if the Union were voted in, was in response to a
similar statement by Davis In the circumstances of this case the
more money; that the employees had cheated themselves
out of a raise, because they were entitled to a raise "just
before this union deal started," but that "it was against the
law to give a raise during the process of getting a union
in."
It should be noted that there is no evidence in the record
that Respondent had any firm intention of giving the
employees a raise in wages before the union campaign.
Indeed, if we were to take Bromwich's letter of July 30,
1964, at face value, it would appear that no such wage
increase was justified, much less contemplated .22 It is
therefore found that this reference was contrived to give
the employees the impression that they had been hurt by
showing an interest in the election, even before the
election occurred. Also, the theme that it would be utterly
futile to vote for the Union, because the Union would
secure nothing from the Respondent, appears with a
number of variations throughout Respondent's campaign
against the Union, as in these talks.
It is found that the statements set out above, considered
as a whole, and in the context of this record, were violative
of Section 8(a)(1) of the Act.
Oliver E. Waters-Tool Room Superintendent:
1. Employee Richard Pearson testified that in a
conversation with Waters about a month before the
election, Waters said that he was ashamed of Pearson
because of his involvement with the Molders Union; that if
Pearson were going to get a union, he should get a
machinist union that would benefit him, not this Union,
which "wouldn't do you any good." Pearson indicated that
Waters often "jokingly" told Pearson that he (Waters) was
ashamed of Pearson. Waters did not deny this
conversation.
2. A week after the previous conversation, Pearson
testified that he had another conversation with Waters in
which the latter said that he hoped that a business in
which Pearson was engaged was doing well, since "if this
union gets in we are going to move to Arkansas." Pearson
states that he told Waters, "he was crazy as hell." Waters
then said that a place in Arkansas having the same
facilities, but cheaper, was available to Respondent.
Pearson gave Waters some "back talk" and the latter left.
This conversation is also not denied.
3. On other occasions, according to Pearson, Waters
said that Respondent had come to Malden "to give you
poor bums a job," to give them a chance to make a living,
and then commented, "This is the way you do us." Waters
indicated to Pearson that, "we was cutting our own throats
by trying to get a union." This testimony was not denied.
4. On another occasion, when a representative of the
Union was handing out union literature, Waters stated to
Pearson that the workers themselves were getting stabbed
in the back" and commented on the "filthy, trashy
literature" the Union was handing out.
reasonable tendency of Trost's response, clearly foreseeable by
Trost was coercive of the employees' freedom of choice The
response accorded further with Respondent's overall campaign of
opposition to the Union, which connected the moving of the plant
with the advent of the Union
tl It may be recalled that Leadman Hart told Clair Bullard that
Schoemehl went to St Louis to try to get raises for the employees,
but dropped the subject when the Union came up Other than this,
there is no evidence that a raise for the employees was even under
consideration
11 General Counsel interprets Waters as stating that the
employees were stabbing themselves in the back Pearson,
however, did not so testify
STERLING ALUMINUM
5. John W. Moore testified that on or about
September 1, while he was at work, Donovan came out on
the job and told him to go to Waters' office. Donovan
walked Moore to the office and then left. Moore testified
that Waters told him "that they had me picked as one of
the union instigators," that what he did outside the shop
was Moore's business, but what he did inside the shop was
Respondent's business. Waters further told Moore that he
was not asking him if he was or was not so involved.
Waters further said, "he was supposed to write me up, but
that he wasn't going to."
Waters testified that he had conversation with Moore
about the Union, but, after first stating that he did not
"recall mentioning he had been picked as a union
instigator," testified that he did not tell Moore that.
Waters did not further testify to any detail of his
conversation with Moore about the Union, or otherwise
deny the remarks attributed to him. Donovan did not
testify at all.
Waters' testimony with reference to this matter was
entirely in response to three leading questions on direct
examination. While this method of contravention of
previous testimony is a technically correct method of
proceeding, it certainly lacks the persuasive detail often
necessary to aid in credibility resolutions. Moore's
testimony here supplied this quality of detail. Moreover,
the two accounts are not necessarily incompatible. While
Waters denied using the word "instigator," the incident as
a whole indicates that he advised Moore that he was under
observation for his activities on behalf of the Union, and it
is so found. The incident is alleged by General Counsel to
support an allegation that Respondent thereby created an
impression of surveillance (paragraph V(EE) of the com-
plaint), and it is found that the incident does support that
allegation.
It is further found that by reason of the activities of
Waters set forth above, with the exception of that
contained in paragraphs 1 and 4 above, Respondent
violated Section 8(a)(1) of the Act.
Norman Winchester-Warehouse Superintendent:
1. About the time of the beginning of union activity at the
plant, Winchester questioned employee W. C. Taylor as to
how Taylor felt the Union was going to go. Two or three
days before the election, Winchester asked Taylor to see
how the employees were then "feeling about the Union."
Taylor then talked to "a few guys and asked them how the
Union was going and who was going to win." Taylor
reported this to Winchester. These facts were not denied
by Winchester.
2. Floyd Kennedy, a gas station operator near the plant
area, whose brother worked for the Respondent during the
period involved here, testified that, prior to the election,
Winchester inquired of him as to whether his brother was
for or against the Union. The two men discussed the
possibility of the plant moving if the Union were successful
in its organizing efforts, a topic which, according to
Kennedy, "was talked all over town that there was a
possibility of the Company moving if the Union did come
in." Winchester stated his concern to Kennedy that this
would happen. Winchester testified that he is sure that
this conversation did not take place, and denied it, on the
basis that he never talked to anyone about this subject.
Kennedy was an obviously disinterested, even reluctant,
witness for the General Counsel. Winchester, on the other
hand, appeared to testify under some constraint, and his
testimony was generally unsatisfactory as indicated
hereinafter. On an appraisal of the demeanor of the two
witnesses, their self-interest in the proceedings and an
317
analysis of their testimony, the Trial Examiner credits
Floyd Kennedy.
It is further found that in these circumstances,
Winchester did expect, or should have reasonably
expected, that Floyd Kennedy would relate this
conversation to his brother, who was an employee under
Winchester's supervision, and this, in fact occurred.
3. Employee Larry Campbell testified that on the last
day that he worked before the election, Winchester visited
him at his home and during the conversation between
them Winchester "just started to tell me how things were,
perhaps not as we all wanted them to be at the plant, but
he wanted to convince me they were going to get better as
the plant had time to grow and the customers to get better.
He said ... and as they got better our pay would also, and
we would have good working conditions. He said we didn't
need a union now, we needed to let the company grow ...
he wanted to encourage me that things would get better if
we let the union alone, if we stood with the company and
not with the union. . . . He said that our pay would get
better if we would just wait until the company grew more.
He didn't make any statement as to the amount."
Winchester testified that he went to Campbell's house
for a business reason; that in answer to a request from
Campbell for a raise, he advised Campbell that as the
plant grew "we will get more money." Winchester denied
that either of them mentioned the Union during this visit.
The General Counsel does not contend that the visit to
Campbell's home, as such, violated the Act, even if
Winchester discussed the Union. Although the Board has
held that such visits by agents of employers may be
grounds for setting aside an election, it has never been
held that this constitutes a violation of Section 8(a)(1) of
the Act, unless the content of the conversation is violative
of the Act. In this situation I do not believe that what
Winchester is alleged to have said to Campbell is violative
of the Act. It was essentially a prediction that as business
improved so would wages and working conditions. It would
also appear, according to Campbell, that Winchester
expressed the opinion that this improvement in business
conditions would be more likely to occur if the Union were
not in the plant. This appears a legitimate argument,
protected by Section 8(c) of the Act, which Campbell
should have been able to fairly appraise and accept or
reject. However, the Trial Examiner is convinced that the
conversation did occur, substantially as related by
Campbell. Winchester's denial is discredited.
4. Employee Earl Thurston testified that on one
occasion Winchester said that if the Union got in, it would
hurt the plant. Winchester further mentioned that the
Union "didn't help the employees any" at a shoe factory
nearby and "said if we got a union out here it would
probably be the same deal." While it appears that
Thurston assumed that Winchester meant that if the
Union came in, the employees at Malden would be hurt, on
the basis of the testimony as a whole, it would appear that
this statement of Winchester's should be considered fair
comment, protected by Section 8(c) of the Act.
It is found, however, that by his activities in respect to
W. C. Taylor and Floyd Kennedy detailed above,
Winchester interfered with, restrained, and coerced
employees in the exercise of their rights under Section 7 of
the Act and Respondent thereby violated Section 8(a)(1) of
the Act.
Elmer SchmidtMaintenance Superintendent: John W.
Moore testified that about the middle of August 1964, he
had a conversation with Schmidt at the guardhouse, which
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schmidt initiated by asking Moore "how the union was
coming?" When Moore stated that he did not know,
Schmidt said, "Don't give me that stuff." Schmidt then
suggested, according to Moore, that the latter ask Union
Representative Schlesinger what the Union had done with
the pension money in St. Charles, and further stated that
Respondent would not have any union tell them how to
spend their money.24
Schmidt recalled the conversation referred to and
testified that Moore was trying to gain entrance to the
plant after hours, which was against plant rules. Schmidt
testified that after he refused to let Moore in, the latter
asked whether "the company is getting shaky over this,"
or something to that effect. Schmidt answered Moore to
the effect that the Respondent was doing just fine and
inquired how the Union was doing. Schmidt asserted that
was the extent of the conversation. At the time , Schmidt
saw "cards" sticking out of Moore's pocket. Schmidt also
testified, in response to specific questions that he could
not recall saying that Moore should not be giving him any
of that stuff, denied mentioning Schlesinger, but recalled
that he had on occasion talked to Moore about his own
particular experiences with the pension fund in St
Charles, and states it is possible he talked about it on this
occasion. Schmidt did not otherwise testify concerning
Moore's assertion that Schmidt said that Respondent
"would not have any union telling them how to spend their
money."
General Counsel asserts that, "This conversation
amounted to an interrogation of Moore concerning his
union affiliations and a statement that it would be futile to
select the Union as a collective bargaining
representative."
So far as the two accounts of the conversation go, they
are not necessarily inconsistent on material points,
although they differ on some details. In the circumstances
I find that the query of Moore as to how the Union was
doing occurred as testified by Schmidt, and did not
constitute unlawful interrogation. However, it is found that
Schmidt did clearly state to Moore that it would be futile to
select the Union as the employees' representative,
because Respondent would make no economic
concessions to the Union, and that this latter statement, in
the circumstances of this case, constituted a violation of
Section 8(a)(1). As previously noted, a similar theme
appears in the written material distributed by Respondent,
and in other statements set forth herein.
Paul Gourley--Chief Guard. 1. Gourley attended the
initial union meeting at Bernie. He was accompanied by
employee Richard Pearson . There is some indication in
the record that Gourley may have been curious as to
whether he fell within the group that the Union was
seeking to organize . Gourley__ admits_ reporting to
Superintendent Schmidt as to attendance at this meeting
and the fact he attended with Pearson who worked under
Schmidt.25
2. Employee Darrell Hyde testified that approximately
a month before the election Gourley told him he had better
24 The transcript is slightly garbled at this point The text states
the Trial Examiner' s reading of the testimony
Z' On direct examination for the General Counsel, Gourley
testified that Schmidt questioned him about the meeting and
whether he knew any of the people there Gourley estimated the
number for Schmidt as approximately 78, and "said there were a
lot of people there I knew, but I couldn't recall then all the names
there were so many " Gourley recalled reporting Pearson 's name.
talk to the men in the plant and tell them "to vote this
union out"; the employees had pretty good jobs and that
they would lose their jobs if the Union were not voted out.
This was not denied.
3. Employee Lloyd Evans testified, without
contradiction, that he overheard part of a conversation
between Gourley and other employees in which Gourley
stated that the employees would be smart if they voted
against the Union and kept it out.
4. Employee Richard Pearson testified that on the
return trip from Bernie, Gourley asked him who Union
Respresentative Carducci was and where he came from.
Gourley also asked Pearson how he thought the employees
would benefit from the Union
5. Pearson also rode to work with Gourley for a period
before the election During this period Gourley told
Pearson that he thought the Respondent would move on
account of the Union, that he had heard rumors that they
would move to Arkansas. Gourley asked Pearson what
part he was playing in the Union. When Pearson said he
felt a union was needed, Gourley inquired as to the reason.
Pearson told Gourley that Respondent had failed to fulfill
its promises. Gourley explained that the Union had
swindled the employees at St. Charles, that the employees
had lost their benefits, insurance, and retirement funds.
When Pearson asked Gourley where he had obtained his
information, Gourley evaded giving Pearson any answer.
6. Very shortly before the election Respondent had the
employees load one of the furnaces which had been built
at Malden upon a truck. For about 2 days the truck was
parked at one of the employee entrances to the plant and
then, about a week before the election, during the night,
the furnace was driven away from the plant. Although
Respondent had shifted other equipment from the plant,
this was the first time a furnace had been removed. At this
time Gourley told employee Evans that the furnace had
gone and that the others would follow if the Union came in.
Gourley also told Evans that this was the same Union that
Respondent "didn't get along with" at St. Charles, "and
wouldn't try down here " Gourley said that the
Respondent already had a place to go in Arkansas.'`'
7. Prior to the election Gourley testified that he
initiated a committee of employees allegedly not eligible to
vote in the election, for the purpose of opposing the Union.
He stated, however, that some of the participants were
employees within the unit involved in the election. The
only activity of this alleged committee was the purchase of
radio time for spot announcements just prior to the
election. However, this was done solely by Gourley, who
testified that he composed these announcements and paid
for them out of his own pocket.
The General Counsel claims that the contents of the
announcements, as well as the mechanism by which they
came to be made (sponsored by an ostensible employee
committee, which, in fact was controlled by a supervisor)
constitute violations of the Act.
As to the contents, an interesting dichotomy is
presented. Assuming that these announcements would
have been coercive if the employees knew that they
On cross-examination , Gourley asserted, in response to a leading
question, that he made no report as to the names of those who
attended the meeting This latter testimony is not credited It is
found that Gourley reported the names of those he recalled
attending , as indicated by his original testimony
26 The day after the election the oven was returned to the
Malden plant and unloaded After a time it was again shipped
away
STERLING ALUMINUM
emanated from a supervisor, there is no evidence that any
employee knew that the announcements were other than
they purported to be: appeals from other nonsupervisory
employees. As such, the Trial Examiner finds that they
were not, and would not have a tendency to be, coercive,
per se.
However, the employees were, in fact, grossly misled by
the fraudulent attribution of these announcements to
fellow employees, when, in fact, the responsibility for
these statements was that of a member of Respondent's
supervisory force. Employees who may have been swayed
by these announcements to feel they were making
common cause with such asserted fellow employees were
thereby deluded by means of a trick This was the
necessary and foreseeable consequence of the manner in
which these announcements originated and the false
manner of their attribution.
It is found that by the activities set forth above (except
those set forth in paragraphs 3 and 4) Respondent violated
Section 8(a)(1) of the Act.
4. Other alleged activities
The General Counsel asserts that Respondent violated
Section 8(a)(1) of the Act (1) by using an employment form
which inquired as to the union affiliation of prospective
employees, (2) by certain conduct in respect to employees
engaged in concerted activities to improve their parking
facilities, (3) by wage increases instituted in January 1965,
(4) by certain activities of Plant Manager Schoemehl, and
(5) by certain activities of prominent citizens of the
community of Maiden and by activities of Respondent's
counsel. The Trial Examiner sees no purpose or necessity
in lengthening this decision by elaboration upon these
additional issues, since the order required to remedy the
violations already found should be sufficiently broad to
cover any future violation of Section 8(a)(1) of the Act.
Some of these matters will be noted in connection with
other alleged violations of the Act discussed hereinafter.
D. Alleged Acts of Discrimination
1. The August 19,1964, discharges
On August 19, 1964, the Respondent sent letters to a
number of employees, who had previously been
temporarily laid off on July 10 and July 31, 1964, advising
them that their temporary layoffs had been converted to
termination of employment. Ten of these employees are
alleged to have been discriminated against in violation of
the Act by this action. They will be considered in the order,S
in which they were laid off.
a. Employees laid off on July 10, 1964
On this date, prior to the inception of the union activities
here involved , the Respondent laid off 36 employees for
economic reasons which are not disputed by the General
Counsel. It is clear that this layoff was originally expected
to be a temporary layoff of brief duration.
27 Batchelor 's testimony in this respect was not denied. On
cross - examination Batchelor admitted that there had been a
complaint about May 22, 1964, concerning a piston incorrectly
cut, but testified that he had convinced his foreman , Huels, that
this was not his fault It was Batchelor 's understanding that
Superintendent Rich would tear up the written warning on the
incident but it apparently is still contained in his file Although
Rich is deceased , Respondent did not call Foreman Huels, who
319
Plant Manager Schoemehl testified that the layoff was
occasioned by a shortage of orders accompanying the
normal changeover in the automobile industry. The
employees were told that they were being laid off
temporarily, which fact was confirmed in the discharge
letters, as noted above. Those employees not discharged
were recalled to work on or about the time of the
discharges.
The following five employees, laid off on July 10, are
alleged to have been discharged in violation of the Act:
Bob Batchelor- Batchelor was first employed the day
after Labor Day 1963. Prior to his layoff he worked as a
"gate cutter," in the foundry, a job which involves cutting
unnecessary protuberances off unfinished pistons. He was
not criticized concerning his work performance or
attendance during his employment.27 On July 10, he was
told by his supervisor, Huels, "I'm going to have to lay you
off temporarily on account of the cutback in personnel."
Batchelor attempted to have management rescind his
layoff, but was unsuccessful.
After his layoff, Batchelor signed a union card, attended
union meetings at Bernie and Malden, obtained union
cards from other employees, and accompanied other
employees who were organizing for the Union.
By letter dated August 19, 1964, signed by Assistant
Plant Manager Donovan, Batchelor was advised, "Due to
the fact that your work was specifically and generally
unsatisfactory, your temporary layoff can now be
considered permanent ." When Batchelor sought the
reason for his termination from Plant Manager Schoemehl,
the latter stated that he did not know the reason, that the
discharge had been effected by Assistant Plant Manager
Donovan.
Schoemehl testified originally, when called as a witness
by General Counsel, at the outset of the hearing, that
Batchelor was discharged by Donovan for "unsatisfactory
work," so far as he knew. He later testified that Donovan
had recommended that Batchelor be terminated, and that
this action was taken because of Batchelor's bad absentee
record and "complaints from foundry supervision" that
Batchelor was doing "the easy pieces" rather than doing
the work in rotation. According to Schoemehl's testimony,
this latter complaint was made to him by Al Fleshman, the
production control manager , who, as has been noted, was
listed by Respondent as a nonsupervisory employee.
Schoemehl stated that this occurred while Batchelor was
still working , and that he took the complaint to
Superintendent Rich and Kemmerling, Rich' s assistant.
Schoemehl testified that Rich said he was dissatisfied with
Batchelor.
With respect to Batchelor's absences from work, his file
shows that he had 13 excused absences in March, during
which he was hospitalized; he was also in the hospital for a
checkup in June 1964; otherwise his file shows five
unexcused absences in April and one in July. Although
evidence of the records of all the employees laid off on
July 10 was not introduced, the record in this matter does
show that individuals with comparable or worse records
than Batchelor were recalled to work after the July 10
layoff.2"
was the admitted supervisor directly over Batchelor, concerning
these matters , nor did Respondent make any explanation for his
failure
2" In addition to his absences , Batchelor also testified that he
left work early on some occasions, apparently with permission,
since there is no evidence of criticism on this score He testified
also, without contradiction , that other employees on his shift were
also permitted to take off early
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the claim that Batchelor did only the
easy work and not the work required, it is noted that
Schoemehl, in explaining why there are no complaints in
Batchelor's file on this subject, testified that this sort of
complaint was "run of the mill," and expressed doubt
whether the foreman would have thought it serious enough
to make up a complaint. On the basis of this record, and
the failure of Respondent to bring in more probative
evidence, the Trial Examiner finds that it was not proved
that Batchelor was guilty of improper production
practice S29 or that he was ever criticized for such
practices
On redirect examination Schoemehl testified, for the
first time, in response to a leading question, that
Batchelor's medical and physical condition was a factor
considered in terminating him. General Counsel argues, in
effect, that this latter assertion is an obvious afterthought,
offered as a makeweight when Respondent's other
defenses were assertedly "destroyed."
Schoemehl admitted that he was aware of all of the facts
bearing on Batchelor's termination at all times during the
hearing. His failure to mention the health factor when
initially detailing the reasons for Batchelor's termination
indicates to the Trial Examiner that, at the least, it was
hardly a prominent item in Schoemehl's thinking on this
issue.
Acy Lee Green. Green began work for Respondent about
June 22. 1964, in the foundry as a molder. His supervisors
were Rich, Kemmerling, and Howard Hart. Green testified
that, after about a week and a half, he incurred a slight
injury to his hand and requested Hart to transfer him from
molding to a laboring fob. Hart at that time, told Green that
"we are going to make a molder out of you." A week later,
after Green had "run some bad pistons," Hart transferred
him to a clean-up job. He further states that Kemmerling
and Rich told him that if he continued doing good work,
they would keep him on that job. Very shortly thereafter
on a Friday (obviously July 10) Kemmerling told Green that
he was being temporarily laid off, that he was "not to
worry, they would be sure to call me back." Green worked
overtime the next day before going on layoff status.
While on layoff Green signed a union card and attended
two union meetings.
Green testified that about 2 weeks after he signed the
card, and about 7 weeks after being laid off, he received a
letter from Respondent stating that because of his
"' At the time General Counsel ' s objection to the hearsay
nature of this evidence was overruled , the Trial Examiner
expressed his reservations as to its probative value No reason
was given for the failure to call Fleshman who assertedly had
direct knowledge of this matter, or Donovan who effected
Batchelor ' s discharge Kemmerling , who testified , was not asked
about Batchelor 's asserted delinquencies
"' Respondent , early in the hearing, objected to testimony
adduced by General Counsel as to statements made by
Superintendent Rich, who is deceased , on the ground that
evidence of these conversations was inadmissible under the
Missouri "Dead Man's Statute," Section 491010 , Revised
Statutes of Missouri, 1949 V A M S This objection was overruled
Thereafter, both General Counsel and Respondent were
permitted, generally , to adduce evidence of past statements made
by Rich Because of the unavailability of Rich , Respondent was
afforded latitude in this respect, over General Counsel's
objection The Trial Examiner has further considered these
rulings and is convinced that they were correct The Missouri
statute, which speaks in terms of causes of action to vindicate
private rights, has no application to regulatory statutes such as
unsatisfactory work, his temporary layoff had been made
permanent.
Schoemehl was permitted to testify, over General
Counsel's objection as to hearsay, that Superintendent
Rich had advised him that he did not think that Green
would ever make a good employee and that he did not want
him back.'"' However, in most cases, as here, Respondent
did not present any corroborative detail which might
justify reliance on hearsay. See N.L.R.B. v. Imparato
Stevedoring Corp., 250 F.2d 297, 302-303 (C.A. 3). Thus,
neither Hart nor Kemmerling, who would have firsthand
knowledge of Green, was called upon to testify with
respect to this matter, nor was any matter critical of Green
offered from Green's file. It is therefore inferred that these
supervisors would not have testified adversely to Green,
and that no such information was contained in his file. It is
also noted that when Schoemehl originally testified for
General Counsel, he could not recall Green at all
On the basis of the record the Trial Examiner finds, in
accordance with Green's undemed testimony, that at the
time of Green's layoff, his supervisors intended to call him
back to work, indicating no objection to his continued
employment.
Teddy Guffey: Guffey was first employed by Respondent
in November 1963. Apparently there was no criticism of
Guffey's work except for one occasion shortly after the
inception of his employment. However, about June 26,
1964, Guffey was given a final warning with respect to his
absenteeism. Prior to that he had been absent without
excuse three times in April, one time in May, and four
times in June. During this period he also had four excused
absences. Guffey, thereafter, was absent, without excuse,
on July 10. On that day, Superintendent Charles Trost
sent word to Guffey that he was laid off. However, the
record shows that this was not at the time intended to be a
termination of employment, but was, rather, a temporary
layoff. On August 19, Donovan sent Guffey a letter, like
the others, stating that "Due to the fact that your work was
specifically and generally unsatisfactory, your temporary
layoff can now be considered permanent."
After his layoff, Guffey signed a union card and
attended one or two union meetings.
Superintendent Charles Trost, who at first did not
remember Guffey, testified that he had selected Guffey for
layoff because of low production. Trost testified that he
made a comparison of the production of employees in his
the Act , which protect public, and not private , rights See
International Association of Machinists, Lodge No 35 (Serrick
Corp) v N L R B , 311 U S 72, 80 It would be incongruous,
indeed, if uniformity of administration of the Act by the Board, to
which the Supreme Court has said the States must defer, see San
Diego Bldg Trades v Garmon, 359 U S 236, could be defeated by
varying State laws as to the admissibility of evidence Rule 43(a) of
the Federal Rules of Civil Procedure broadly favors the receipt of
evidence see Dallas County v Commercial Union Assur Co , 286
F 2d 388 (C A 5), and disfavors disqualification under statutes
such as that of Missouri restricting admissibility of evidence See
Dellefield v Blockdel Realty Co , 128 F 2d 85, 93 (1942) This
would appear to be the interpretation of Rule 43(a) favored by the
Circuit Court of Appeals for the Eighth Circuit See Peoples Loan
& Investment Co v Travelers Ins Co , 151 F 2d 437, 440 (C A 8)
See also , Wallick & Schwalm Co , 95 NLRB 1262, enfd 198 F 2d
477 (C A 3), Calandra Photo , Inc, 151 NLRB 660, cautioning
close scrutiny of testimony of statements made by deceased
persons, in considering the weight to be assigned to such
testimony , but approving the receipt of such evidence
STERLING ALUMINUM 321
department at the time of the layoff.^'i However,
Superintendent Trost admitted that he had no present
recollection of how Guffey compared with any other
employee, but asserted that, "if I let him go on low
production, I let him go for that reason [i.e., on the basis of
comparison with other employees]." Superintendent
Trost testified that Schoemehl and he decided thereafter
that Guffey should be permanently terminated based on
his "past performance."
Schoemehl, who stated in his original testimony that he
did not remember Guffey, later testified that Guffey was
permanently terminated because of his absentee record.
In its brief, Respondent contends that Guffey was
terminated on July 8 or 9 by Superintendent Trost due to
his absenteeism. Superintendent Trost, however, testified
that among the employees named in his testimony (which
included Guffey), only employee Rodney Proffer was let go
for absenteeism.
Larry Walton: Walton was employed by Respondent in
February 1964, in Superintendent Charles Trost's division.
He was temporarily laid off on July 10, and, in August,
received a letter from Respondent terminating his
employment. During the time he was at work, Walton had
considerable difficulty with his legs which pained him
when he had to stand at his job on a concrete floor. Until
he was laid off, Walton was absent from work on 26 days.
He, was under treatment by a physician, which
Respondent knew, and had been released by his doctor to
return to work prior to the time of his layoff. Walton
testified that his work was probably affected by the pain,
but that he had received no criticism from anyone about
his work.
Walton signed a union card after his layoff, but attended
no union meetings because of his sickness.
Superintendent Trost did not remember Walton.
Schoemehl testified that Trost had recommended that
Walton be discharged primarily because of his absentee
record.
David Midkiff.• Midkiff went to work for Respondent in
the fall of 1963. At the time he was laid off on July 10, he
was working in the inspection department under Foreman
Joseph Trost. Respondent sent Midkiff a letter on
August 19, advising that his job was terminated because of
unsatisfactory work.32
Midkiff testified that Foreman Trost had never told him
that his work was unsatisfactory. Trost, however, asserted
that he had previously warned Midkiff about his work on
several occasions. But on cross-examination, Trost
admitted that he might be mistaken in his identification of
Midkiff, and further could not accurately remember when
Midkiff had been discharged, grouping him with a number
of other employees who were terminated 7 months later.
There was no indication that Trost was aware of
Midkiff's layoff, or the manner of his discharge, Trost
merely stating that Midkiff had been discharged after
consultation with Schoemehl.
Finally, Respondent produced no written warning notice
with respect to Midkiff, although these were apparently
customarily prepared where employees had been given
several warnings in Trost's department.
In these circumstances, and from his observation of the
witnesses, the Trial Examiner credits Midkiff, and finds
that he had not been warned that his work was
unsatisfactory.
After he was laid off, Midkiff, signed a union card at
John P. Battles' house. He did not attend any union
meetings.
Foreman Trost testified that Midkiff was discharged for
passing pistons of poor quality. For reasons previously
stated, and in the absence of any supporting evidence, this
testimony is not credited.
In its brief, Respondent states that Midkiff was one of
those "involved" in the return of pistons from the Chrysler
Corporation. This problem with Chrysler appears to have
occurred in the fall of 1963. However, Trost did not testify
that Midkiff was involved in the return of these pistons. He
did, at one point, generally refer to complaints from
Chrysler and other customers prior to the termination of
other employees discharged later (Rose, Hodges,
Nettleton, and Loafman), but even as to them, he
conceded that the inspection department was not at fault
in the return of the Chrysler pistons.33 This is also
confirmed by testimony of employee Hodges, which is
credited.
b. Employees laid off on July 31,1964
The General Counsel contends that the layoff of the five
employees here involved, as well as their subsequent
termination on August 19, 1964, violated the Act.
Glendle Elsworth:34 Elsworth began work for
Respondent on January 13, 1964. He was first employed in
the warehouse, then was transferred to driving a small
truck, and later to driving a tractor-trailer which is used to
transport pistons between the warehouses on plant
property and nearby manufacturing facilities. As a tractor-
trailer driver, Elsworth was under the general supervision
of Superintendent Winchester, but more particularly
under the jurisdiction of Ronnie Borders, the traffic
manager, who apparently shares Winchester's office.
On Wednesday, July 29, 1964, Winchester advised
Elsworth that he would be laid off on Friday, July 31, for
lack of work. In another conversation, Winchester
indicated to Elsworth that his work was not the cause of
his layoff.35 Employees Earl Thurston and John P. Battles
were also laid off by Winchester on the same day.
Thereafter, by letter dated August 19, 1964, Assistant
Plant Manager Donovan informed Elsworth that "because
31 This evidence was contained in timecards which the Trial
Examiner ruled should be produced , if available , since Trost had
testified generally as to their contents , and they were material to
the issues , and not collateral See McCormick , Evidence §
198-200 (West, 1954). Although Respondent 's counsel indicated
at first that they might have been destroyed, it later appeared that
timecard records were available
3z Midkiff stated that he received this letter about 2 months
after his layoff, but the record establishes that all of these letters
were dated August 19
33 Foreman Trost testified concerning these complaints
Q [Mr Sohen]• Actually Chrysler sent down men on
three separate occasions to go over your plant, did they not9
A That's right
Q And it wasn't the fault of the inspection, it was
something along in the A Turns or the machining
department, wasn't it 7
A I didn't write the men up either
34 This spelling is taken from Elsworth's signature on cards in
evidence It is incorrectly spelled throughout the record
35 This finding is based on Elsworth's credited testimony.
Winchester did not specifically deny this statement, although he
asserted he considered Elsworth's prior errors in deciding to lay
him off Winchester also stated that this layoff was not intended to
be a termination of employment at the time
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
your work was specifically and generally unsatisfactory,
your temporary layoff can be considered permanent."
Elsworth, prior to his layoff, had signed a union card. He
also attended the union meeting at Bernie, Missouri, on
July 24, and all of the meetings at Malden. He was active
in the union organizational campaign and attended the
conference at the Labor Board office in St. Louis, on
August 25, at which the agreement for an election was
executed.
Winchester testified that he received orders from the
office to lay off three men from his department because of
the workload. He stated that he made the decision,
himself, as to which three men were to be laid off. He
further denied that he was given "any instructions or any
consideration as to which people or how to go about
selecting the ones to let go." At another point, Winchester
specifically denied that anyone told him or pointed out
Battles to him as one of the men who ought to be laid off.
Plant Manager Schoemehl, however, in subsequent
testimony, asserted that he did recommend the layoff of
Elsworth, Thurston, and Battles to Winchester at the time.
On the basis of the record as a whole, it is found that the
layoffs of these men, as well as their later discharges, were
not left to the individual discretion of the supervisor, but
was part of a coordinated decision of the management of
Respondent, a point to which we will return hereinafter.
Winchester testified that he picked Elsworth, Thurston,
and Battles as the three least essential employees in his
department. However, he admitted that the truckdriving
function performed by Elsworth was essential to the
orderly operation of the plant on a daily basis, and that
Elsworth was the only tractor-trailer driver working on any
shift at that time, performing these duties. Further, at the
time Elsworth was laid off, Winchester had no one to
replace him, and did not secure any one to do this work on
a permanent basis until a week or two later. Then
Winchester assigned Darrell Hyde to the job of driving the
tractor-trailer, notwithstanding Hyde's protest that he had
never driven a tractor-trailer and didn't want the job.:"'
Winchester asserted that, in selecting Elsworth for
layoff, and later for discharge, he relied upon four
employee disciplinary reports. It appears from his
testimony that, though he signed all four reports, two of
these may well have been made out by Borders, who did
not testify.
The first of these reports, dated April 22, states
Elsworth to be at fault in damaging a door of the tractor-
trailer. Elsworth admitted responsibility for the accident,
which he placed in February or March 1964." He stated
that he had reported this to Borders, who did not
reprimand him. Elsworth also denied that he had been
cautioned previously about latching the doors to the
trailer.
Winchester testified that he also talked to Elsworth
about the damage to the door and cautioned him to be
careful. However, it appears that Winchester did not
advise Elsworth that a disciplinary report would be written
up in this or any of the other instances referred to by
Winchester.
The second report, dated June 10, asserts that Elsworth
was responsible for damaging a dolly housing on the
tractor-trailer This is denied by Elsworth who testified
that this was done by another employee, Leonard (Blue)
Norman. Winchester testified that his recollection was
that the dolly housing dropped by Norman was "a different
instance." However, when asked whether he had written
up Norman for this, Winchester evaded answering by
stating he was "not positive" Norman had dropped one.
Winchester first stated, on direct examination, that he
had talked to Elsworth about damaging the dolly housing,
then asked to "rescind" that testimony, stating that it was
Borders who had talked to Elsworth about this.
Thereafter, on cross-examination Winchester again
reversed, and stated that he talked to Elsworth about this
matter, after Borders had spoken to him. The Trial
Examiner has also noted that in earlier testimony,
Winchester expressed some uncertainty that Elsworth was
the driver of the tractor-trailer at the time of the damage to
the dolly housing, stating only that Elsworth was the
driver, "to my knowledge, so far as I know." Borders, from
whom Winchester asserts he received his information, did
not testify.
The Trial Examiner credits Elsworth and finds that he
did not damage the dolly housing as claimed. It is further
found that Winchester did not speak to him about this
alleged incident.
The third report states that Elsworth was at fault in
loading certain materials on the wrong truck, after being
properly instructed by Borders. Winchester testified that
these were special materials and the mistake was
expensive to Respondent, as were the two former
incidents. Winchester testified that he talked to Elsworth
about this and asserts that Elsworth stated that it was just
a mistake. Elsworth states that no one ever talked to him
about loading his material on the wrong truck. Based on
observation of the witnesses, the findings heretofore
made, and the record as a whole, Elsworth's testimony is
credited over that of Winchester, as elsewhere where their
accounts are in conflict.
The fourth report, dated July 31, states that Elsworth
was 15 minutes late returning from lunch. John P. Battles
was with him at the time, and a disciplinary report was
prepared for Battles also. Both men deny that they were
late on this occasion. Donovan, who is stated to have been
with Winchester on this occasion, did not testify.
Winchester at one point in his testimony testified that
Elsworth was actually the only employee whom he had
ever written up, at least before July 29. Thereafter he
indicated that he had written up other employees for
derelictions, but could only remember Elsworth, Thurston,
and Battles among this group.
John P. Battles: Battles was first employed by
Respondent, on July 26, 1963. During all but the last 2
weeks of his employment, he worked as a maintenance
electrician under Superintendent Elmer Schmidt.
Approximately 2 weeks before John P. Battles' layoff on
July 31, he was transferred from the maintenance
department to the warehouse, where he first drove a truck
for a few days and was then used as a stockman, under the
supervision of Superintendent Norman Winchester.
It was Battles who, on July 12, first contacted Carducci,
a representative of the Union, with respect to union
7" This finding is based on Hyde's credited testimony
Winchester testified that Hyde said he would like the job , that he
did not remember Hyde saying that he had never driven a truck,
and that he had previously heard from somebody that Hyde had
driven "some " To the extent inconsistent with Hyde's testimony
this is not credited
" Winchester conceded that the date on each of the various
reports, except that of July 31, was not necessarily the date of the
incident involved , although he estimated only a 2 -or 3-day lapse of
time between the event and the report
STERLING ALUMINUM
organization . Carducci met Battles and two other
employees, John Moore and William Wages, at Battles'
home on or about July 16. Carducci left union cards with
these men, which were distributed among employees of
Respondent. Battles obtained a number of cards from
employees, some of which were given to him or dropped
off at his home in a trailer camp in the area in which the
plant was located. Battles attended all of the union
meetings including some gatherings at the home of
employee Bill Everett.
Although Battles sought to keep his activities secret, it
is quite clear that Respondent was aware of Battles'
efforts in respect to the Union. Direct evidence of this was
furnished by Battles' son who discussed his father' s union
connections with Superintendent Trost and Leadman
David Randolph prior to the date of his father's layoff.
Winchester, himself, after several denials that he "knew"
of Battles' union activities, finally admitted that he had
"heard" of this before Battles was laid off. Winchester, in
explanation of his previous denials, asserted a distinction
between what he "knew," and what he had "heard." He
further stated, "You can hear anything."
As previously noted, Battles was told by Winchester on
July 29 that he was being laid off because of the workload
in the plant. Winchester's assertion that this choice was
made by himself without suggestion or direction from
management of Respondent has been previously
considered and discredited.
Winchester's testimony as to the factors which impelled
him to select Battles for layoff was quite general in nature
and tended to vary when he was pressed for detail. On
direct examination , he stated that he based his decision to
lay Battles off because he had noticed Battles talking in
groups during working hours, not being in his working
area, "things of that nature." He stated that he talked to
Battles about this "at least once." Winchester could not
recall the conversation specifically, but recalled that
Battles went in to work without reply.
On cross-examination, Winchester asserted that he
cautioned Battles "at least twice." On this occasion,
Winchester stated only that the cautioning of Battles had
to do with cartons being dropped or stacked out of place.
After some degree of uncertainty, Winchester placed
these cautionary talks in the second week of Battles' work
in the warehouse. Since Winchester had been advised of
the layoff and apparently had decided on the three men
involved before Wednesday of that week, it would appear
that these asserted cautionary talks would have occurred
after the decision to lay Battles off, not before.
It is further noted that while Winchester did not write
up a disciplinary report on any of the above matters, on
July 31, Battles' last day of work before going on layoff,
Winchester wrote him up, together with Elsworth, for
being 15 minutes late returning from lunch. This alleged
incident has previously been considered in connection
with the termination of Elsworth.
Finally, when cross-examined concerning his failure to
write any reports on Battles prior to the decision to lay him
off, Winchester stated that his reason for letting Battles go
18 Considerable testimony was adduced concerning
derelictions of Battles and employee Everett when they were
working together for Superintendent Schmidt However, the only
disciplinary report appearing in Battles' file, so far as the record
shows, states merely that on one occasion, when the hydraulic
system was down , "night maintenance men could not be found "
This form was not signed. According to Winchester's testimony,
this would have been his only knowledge of a prior disciplinary
323
was the same as his reason for letting Elsworth and
Thurston too, because they "were the least important to
the operation and they had disciplinary reports. `38
Lastly, it is noted that another employee, James
Whitehead, who was doing the same work as Battles,
unexpectedly quit on July 31, at a time when Whitehead
was being asked to do overtime work. This would indicate
that Respondent was, at the time of the layoff,
shorthanded in the warehouse.
Earl Thurston: Thurston began working for the
Respondent about August 8, 1963, in the foundry division.
The last part of that time he drove a pickup truck known
as the "wolf wagon," used, apparently, for intraplant
deliveries. This function was transferred to the warehouse
division about October 1963, and Thurston then came
under the general supervision of Superintendent
Winchester. Thereafter Thurston was used as a stockboy
in addition to driving the "wolf wagon." In addition,
Thurston was specially assigned to straightening up an
outside warehouse, apparently considerably removed from
the main warehouse, where Winchester's office was
located. Thurston was on this assignment for about 2
months and, according to the testimony of Winchester and
Schoemehl, had not completed this project by July 31,
when he was laid off. It would appear that Thurston's time
was not spent exclusively on this assignment, however.
His testimony indicates that he was regularly performing
tasks in the main warehouse during the last month of his
employment and certainly was doing so on the last day that
he worked.
According to Thurston, Winchester told him he was
doing a pretty good job straightening up the warehouse
and also told him that he was doing a good job putting
stock up generally. Winchester's testimony as to this was
somewhat equivocal. He stated that he could not
remember telling Thurston that he was doing a good job in
the outside warehouse. When asked if he had
complimented Thurston in any other way about his work,
Winchester answered, "Oh yes. Anyone who does a good
job I always tell them, as well as something bad." When
asked specifically if he had ever complimented Thurston,
Winchester stated that he probably had, although he did
not remember when.
Thurston also asserted that no one had complained
about his work or criticized him about his work prior to his
last day at work. However, Thurston did testify that
Winchester "had been riding me pretty hard for a while.
Every job that came up that nobody would have, why I got
it." He stated that this had been going on for more than a
month.
Winchester testified that he selected Thurston as one of
the three employees to be laid off from the warehouse, as
has been noted, because of his disciplinary reports and
because he was least valuable to the operation.
Winchester stated that Schoemehl had complained to him
that Thurston was not getting the outside warehouse
straightened out, and that he had on this occasion
"chewed" Thurston out. This was placed as a month
before the layoff. Both Schoemehl and Winchester
report concerning Battles In fact, even Schmidt's testimony,
taken as a whole, indicates that he was more tolerant of the
derelictions of Battles and Everett at the time they occurred than
he appeared to be at the hearing Thus, Battles was not
terminated by Schmidt, and only the rather mild reprimand noted
was placed in his file, although the offense involved was sleeping
on the job Schmidt thereafter took Battles and Everett off the
night shift
295-269 0-69-22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Thurston had not completed this task by the
time he was laid off, but that it was completed thereafter
by some employees at a time unspecified.
Thurston was not written up because of this stated
failure to complete this outside warehouse project, but he
was written up for an incident which occurred on
Wednesday, July 29, the day Winchester informed him he
would be laid off.
On that day, according to Thurston's testimony, he was
working in the warehouse, when employee W. C. Taylor
told Thurston that Winchester wanted him to work closer
to the office, so Winchester could keep an eye on hire
When Winchester, himself, insisted that Thurston move,
Thurston suggested that he would like to see Winchester
off Respondent's property Thurston denied that he
wanted to fight, but stated that Winchester had been
"pounding away at me. He had been riding me hard for a
while." Thurston testified that he wanted to have an
"understanding."
Winchester's testimony as to the exchange between
Thurston and himself is consistent with that of Thurston,
though in different words
That same day, Winchester notified Thurston that he
would be laid off on Friday "for lack of work." Thurston
did not thereafter return to the plant to work since, he
states, he considered that he had been fired. The record
shows, however, that Respondent considered that he was
only on temporary layoff, and subject to being recalled. He
was permanently terminated by letter, with the other
employees, on August 19. It was not until about that time
that Winchester, in consultation with Schoemehl, decided
to discharge Thurston, according to Winchester's
testimony.39
Ether Lee Coats: Coats began working for Respondent
on October 24, 1963, and was employed from that time
until July 31 in the inspection department.
Coats signed a card for the Union and attended union
meetings at Bernie and Malden. He was also a lifelong
friend of Glendle Elsworth and often in his company when
the two were in the same area of the plant.
Coats was laid off by Mary Moraty as of July 31. Moraty
told him only that he would probably be called back. About
August 19, Coats received a letter signed by Donovan,
identical with others previously noted, advising him that
his temporary layoff could be considered permanent
because his work had been "generally and specifically
unsatisfactory."
As in the case of Midkiff, also terminated from this
department, Respondent produced no evidence as to the
circumstances of Coats' selection for "layeff," but
questioned Foreman Trost only about Coats'
termination. "40
Foreman Trost testified that he was the person who
discharged Coats, and asserted that the reasor or the
termination was Coats' failure to produce enough, that is,
"to put out enough pieces per day."
39 Although there was some indication at the hearing that
Respondent was contending that Thurston quit , in its brief
Respondent claims only that Winchester discharged Thurston
because he was least needed, because of his disciplinary reports
and because of his poor work
40 Employee Gale Hodges testified that Mary Moraty told him
she had a memo directing that two employees be laid off and that
Moraty told him that she did not like to lay employees off and she
In support of this position, Respondent produced a
disciplinary report, dated May 15, 1964, which Trost
testified he had prepared, stating that Coats had been
warned on several occasions "regarding the poor quality of
his work and poor productions. "41 The report also stated
that Coats had been told that if he did not improve, he
would be dismissed.
This report was never shown to Coats. In fact, Trost
testified that he had not talked to Coats for "some time"
prior to the preparation of this report. Trost stated that he
had become tired of talking to Coats, and had written this
"little grievance" so that he would have a record of the
matter. Foreman Trost testified that Coats did not improve
thereafter, and, in fact, did not even make an effort to
improve.
Coats testified that the only criticism he received of his
work occurred when Trost or Moraty would call all of the
inspectors in a group to urge better or faster work. Trost
admitted talking to the inspectors as a group, but denied
warning them. However, in the single instance he related
of such talks he stated, "I would give them an example, a
certain type of piston and tell them to watch for that, they
were having poor inspection."
As previously noted also in connection with the
termination of Midkiff, the Trial Examiner was not
impressed with Trost's demeanor or the quality of his
testimony. The testimony of Coats as set forth above is
credited.
Rodney Proffer: Proffer was hired by Respondent on
July 26, 1963. He worked in Superintendent Trost's
division under the direct supervision of Gilbert Howard,
who, prior to Proffer's temporary layoff on July 31
apparently had been succeeded by Roy Draper. Proffer's
layoff also was made permanent by a letter from
Respondent dated August 19.
Proffer signed a union card and had attended one union
meeting before the time of his layoff. He also had a
conversation with his supervisor, Gilbert Howard, before
his layoff in which he "mentioned" to Howard "about
joining a union." Howard advised him not to bring any
literature in the plant.
Although Respondent, in its brief, claims that Proffer
was terminated by Superintendent Trost for low
production and absenteeism, the record makes clear that
Trost rested the main basis for Proffer's termination upon
his absenteeism. Schoemehl testified that Trost told him
that Proffer's layoff was because of excessive
absenteeism. No records were submitted to indicate a
deficiency of production, but there is evidence of Proffer's
absentee record. Superintendent Trost's testimony from
such records shows that, for the year 1964, Proffer was
absent: in January, 1 day; in February. 2 days for sickness
and 2 unexcused; in March, 1 day for sickness, 2 days
unexcused; in April, no absences; in May, 1 absence for
sickness; in June, 6 absences (1 entire week and 1 other
wished Foreman Trost were there to do it General Counsel
argues, presumably upon the testimony of Hodges, that the memo
did not name the two employees to be laid off and that Moraty
selected them. Hodges, however, testified that he did not know
whether the memo named those to be laid off or not
41 It is noted that although "work quality" was suggested to
Trost as a shortcoming of Coats, Trust did not assert in his
testimony that the quality of Coats' work was at fault
STERLING ALUMINUM
day);42 on July 17 (when Respondent 's Exhibit 55C
indicates that he was sick), as well as 5 other days in
succession. Proffer testified that he was sick during this
period. According to Proffer, he spoke to Allen Douglas in
Respondent's personnel department during this period
and advised him that he was ill. Two or three days later, on
a Saturday, Douglas called him again and advised Proffer
that he had been laid off.
Proffer admitted that on the occasion when he was in
Schoemehl's office, the latter told him to call in and let
Respondent know when he had to be absent. Supervisor
Howard also told Proffer that although he was not
expected to work when he was sick, if he did not call in for
3 days, he would be discharged.
Proffer also testified that Howard told him that Trost
thought Proffer was doing "a darn good job." He also
asserted, without contradiction, that Trost had
complimented him on his work.
2. Conclusions with respect to the August 19 discharges;
the issue of Respondent's knowledge of employee union
activities
At the outset, it is asserted that General Counsel's
allegations that Respondent discriminated against its
employees must fail if for no other reason, because of a
failure to show that Respondent was aware that these
employees were involved in the Union's campaign. The
Trial Examiner does not agree.
As the record shows, Respondent was strenuously
opposed to the Union, and Respondent's almost immediate
reaction to the Union's appearance at the plant was to
institute a procedure to ascertain and assemble listings of
how the employees stood: whether for or against the Union
or undecided. Indeed, on the facts of this case, there can
hardly be any doubt that the Respondent became well
informed on these matters, so that in the course of the few
weeks before the election Respondent either knew or had
good reason to suspect the union adherence and activities
(or lack thereof) of its employees with a considerable
degree of exactitude.43
The record specifically shows Respondent's knowledge
of the union adherence of a number of employees. In
addition, daily contact between the employees and the
leadmen and other supervisors, augmented by a
widespread and systematic campaign of interrogation
carried out at management's suggestion for this very
purpose, would tend to fill in the gaps in Respondent's
information. Even where an employee refused to admit his
involvement in response to questioning , the attitudinal
response to such queries undoubtedly would often supply
the answer. Thus, Superintendent Trost advised employee
Hodges he didn't have to answer Trost's query about the
Union, for Hodges' smile was enough.
The community in which these activities occurred is
small and was much involved in the union campaign. The
issues were discussed on the streets and elsewhere in
town. Indeed, much of the union activity occurred in and
around the plant, in the industrial park in which the plant
buildings are located, and where a number of the
employees and supervisors lived.
325
As might be expected in the circumstances, Respondent
also was informed of these matters by individual rank-and-
file employees, themselves, as is evidenced by the
statements in Respondent's letters to the employees
(General Counsel's Exhibits 11D and 11F), in which
Schoemehl adverts to the individual employees who have
come to management with information as to their
antipathy to the Union.
The fact that Respondent had a good line on the feelings
of its employees with respect to the Union is also
evidenced by the many admissions contained in the record
that Respondent possessed such information. Fox for
example, Leadman Derso informed employee Poyner that
Respondent had held a meeting and knew who had signed
cards. Derso also stated that he knew employees Hyde and
Buford Batchelor were among the "yes" men. Leadman
Hart stated that he knew O'Neal had signed a card; that he
had heard Barnes and Albright were supporting the Union;
that Fry "wasn't worth a shit" since he signed a card; that
he knew all who had signed a card, knew Cook was
attending all the meetings , and so on . Leadman Craig
stated that Respondent had a record of those signing
cards. Superintendent Trost stated he knew all who would
attend the union fish fry the day before the election.
President Bromwich in his last letter to the employees
before the election stated that, "Based upon the
information I have at this time ... the Union will be
soundly defeated. For this I am grateful and highly
encouraged." Even granting that these and other such
statements were made for their impact upon the
employees, they are convincing, in conjunction with the
other evidence in the record, that Respondent not only
tried to but did assemble listings of the position of the em-
ployees, including the men here involved , for and against
the Union, based upon information and reports available.
This information also unquestionably revealed to
Respondent the degree of support which the Union had
apparently acquired in a very short time. Thus the Union
was not only able to file a petition for an election on
July 27, within 15 days of the time Battles first contacted
it, but in even less time had secured approximately 110
authorization cards from the employees. Approximately an
additional 43 cards were obtained prior to August 23.
Respondent's counsel was quoted by Sparrel Davis, one of
the members of the community not employed at the plant,
as stating during this period that it looked as if Respondent
were "in trouble" with the Union at the plant. Indeed, the
results of the election show that since a shift of 19 votes
could have affected the results of the election, the votes of
the 23 clearly ineligible supervisors may well have been
material to the outcome of the election on September 21.
It is against this background that Respondent 's actions
with respect to these 10 employees must be evaluated.
Upon analysis, one obvious fact immediately emerges
from the number of diverse situations presented: rather
than being separate and unrelated, the termination of
these 10 employees was clearly the result of a coordinated
and consistent decision. Thus, they were all terminated by
letter, on the same day, signed by the same member of
management , and, in each case, on the basis of the same
vague and all-encompassing statement. Additionally all
41 In his brief, General Counsel contends , without indicating a would be terminated by Trost Schoemehl stated that he
record basis, that these absences were for illness Proffer did not persuaded Trost to give Proffer another chance
so testify. It is noted , however, that Schoemehl testified that 43 Of course , not all these judgments were accurate Thus,
Proffer came to him in June 1964, claiming that his absence from Foreman Trost stated that he had employee Kildow marked down
work was due to illness , at a time when Proffer was afraid that he against the Union , believing "he was a friend of mine 11
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were discharged for alleged deficiencies which had
occurred or were known to Respondent prior to, and in
most cases a considerable time before August 19, but
which were not made the basis for termination of the
employees at the time the asserted deficiency first came to
Respondent's attention. Indeed, even on the date that
these employees were first laid off, it was not even then
suggested by their supervisors that these employees
should be terminated for their alleged deficiencies, but
they were, rather, laid off temporarily, with the
expectation that they would return to work.
No explanation is offered by Respondent for this abrupt
change in attitude between July 10 and August 19. The
only new factor occurring in that period which is shown by
the record is the advent of union organization among the
employees.
Unquestionably the layoff of 36 employees on July 10
was economically motivated. It may be that the divisional
and departmental supervisors at that time exercised a
certain discretion in making what apparently was a widely
based temporary layoff of employees, most of whom were
later recalled to work. However, the subsequent layoff of
five more employees on July 31, takes on a different
aspect.
Not only had these latter five been passed over in the
first, clearly nondiscriminatory, layoff, but they were
thereafter laid off just 4 days after the petition for an
election was filed, and only a very short time before
Respondent actually began calling back employees from
the first layoff, in which these five had not originally been
included. If it is assumed, as Respondent apparently
contends, that its least desirable employees were laid off
first, some explanation would seem to be in order for
recalling earlier laid-off employees, while terminating
those who had originally been retained. No reason
appears 44 Finally, notwithstanding the contention that the
five employees laid off on July 31 were selected by the
divisional superintendents, the evidence shows that
certainly three, including two of the foremost union
adherents, were picked out by higher management.
Upon analysis of all the evidence, it is the conviction of
the Trial Examiner that Respondent's layoff of Elsworth,
Thurston, John P. Battles, Coats, and Proffer on July 31,
and the termination of these men and Walton, Green,
Guffey, Midkiff, and Batchelor on August 19 was
motivated by their adherence to and activities on behalf of
the Union and by a desire of the Respondent to thereby
affect the results of the election then pending.
The Trial Examiner has considered that standing alone,
some of the cases present plausible reason for
termination; but these employees were not terminated for
such reasons when they occurred, and no explanation is
offered for the delay until just before the election. The fact
that other terminations occurring at the same time, and in
the same context , are not even plausible, further renders
suspect all the reasons advanced.
Further, it has been noted and taken into account that
not all the leaders were discharged, and not all of the
employees terminated were outstanding in their union
activities . However, among them were at least two of the
foremost workers in the union vineyard, and it has long
been established that unionism may effectively be chilled
by discrimination against some employees, although
others may be spared. In fact, other leading union
adherents were thereafter let go.
Finally, it should also be noted that of the 46 employees
on layoff as of August 19, 10 of the 14 discharged had
signed union cards prior to that date. All five of those laid
off on July 31 were union adherents. Even standing alone,
elimination of so many union adherents just prior to the
election would be significant. In the context of this record,
the facts clearly indicate a conscious selection of the union
adherents on layoff, in an effort to affect the election
scheduled shortly to be held.
For the reasons stated, and upon this record as a whole,
it is found that by laying off Glendle Elsworth, John P
Battles, Earl Thurston, Ether Lee Coats, and Rodney
Proffer on July 31, and by terminating these employees
and Bob Batchelor, Acy Lee Green, Teddy Guffey, David
Midkiff, and Larry Walton on August 19, 1964,
Respondent discouraged membership in and activities on
behalf of the Union and thereby violated Section 8(a)(1)
and (3) of the Act.
3. The discharge of Jimmy Rose
Rose began work for Respondent in March 1963. From
that time until the first of July 1964, he was employed in
the foundry. Rose testified without contradiction that
there was no criticism of his work and that he had, in fact,
been complimented. However, he admitted that, while in
the foundry, he had been warned that he would be
discharged if he came into the plant inebriated. While in
the foundry Rose had also indicated to Leadman Aiello
that he favored a union in the plant, at which Aiello told
Rose that he would not last very long if Respondent found
this out.
Shortly thereafter, Rose was transferred to the
toolroom. Aiello testified that he considered this as a
promotion for Rose. There appears to have been no
complaint about him in the toolroom until the time of his
termination , which occurred about August 19.
On Tuesday, August 11, Rose injured his hand at work,
and went to a clinic used by Respondent for such pilrposes
where stitches were taken in his hand. He returned to
work that day, but had to leave because of the condition of
his hand. Superintendent Waters told Rose to return to
work when he felt up to it.
On Monday, August 17, Rose returned to the clinic
doctor who removed the stitches and told him that it was
"O.K." for him to return to work. Rose testified that the
doctor hurt his hand in removing the stitches, and that he
went to his own doctor, who advised him not to go to work.
Rose asked his wife to call and notify the Respondent, but
she did not do so until Wednesday, at which time she was
notified that Rose had been discharged.
According to Rose's testimony, which is not denied, he
immediately went to the plant where he saw Donovan and
Schoemehl. Donovan informed him he was discharged
because he did not report to work after being released by
44 As an example . Elsworth was retained at the time of the
economic layoff of July 10, but was laid off on July 31 , after the
election had been requested , at a time when the Respondent
could ill do without his services as a truckdriver Even if he were
not needed as a truckdriver , Respondent was obviously in need of
a stockman when he was laid off, a position for which Elsworth
was qualified It is further curious that, if Respondent did not
wish to use Elsworth as a truckdriver , he was not even given the
opportunity of recall to another position , as employee Ryan's
testimony indicates Respondent did with some employees who
had been laid off on July 10 A number of openings must have
been available , for Schoemehl testified that a number of those laid
off on July 10 did not return when recalled
STERLING ALUMINUM
the doctor at the clinic. When Rose explained that he had
gone to his own doctor, Donovan told him this made no
difference. Rose stated that he understood he had 3 days
in which to report during an absence, to which Donovan
replied that Rose was discharged nevertheless.
Superintendent Waters testified that it was he who
discharged Rose and did so on the basis that Rose violated
a rule against 3 days' absence without reporting. While
Waters asserted that the rule was consistently enforced,
other evidence in the record indicates that the rule was not
uniformly enforced by Respondent's supervisors. Waters
also admitted that in at least one other case he had warned
the employee involved before discharging him. Waters
also testified that he asked Rose's father to get in touch
with Rose but that Rose, nevertheless, did not return to
work.
Schoemehl originally testified that Rose quit. He later
testified that he was the one who gave orders to terminate
Rose after learning that Respondent's doctor had released
him, because Rose failed to "report back to work after a
three day period."
From these facts it appears that Rose had been a
reasonably satisfactory employee up to the time he was
hurt. At the time, Superintendent Waters raised no
objection to Rose being off until he felt fit to return,
following his industrial accident in the plant. Respondent
was aware that Rose was not released for work by
Respondent's doctor until Monday, August 17, and
Respondent was advised of his asserted continued
disability 2 days later. All in all, Rose had been out of work
for about a week when discharged.
From the record as a whole, it appears that Respondent
had been running a fairly "loose ship" since it began
operations at Malden. This was probably to be expected in
starting its operations afresh with new, unskilled, and
untrained help. However, it was only after the Union began
to obtain significant support in the plant that Respondent
appears to have begun seriously tightening up on the
employees. Thus it was immediately after the Union filed
its petition for the election that Bromwich advised the
employees in his letter of July 30, that "Plant management
has been instructed to move quickly to correct our
declining production and to enforce all plant rules and
regulations without favor."
Respondent argues in its brief, generally, that denying
the Respondent the right to terminate the employees
involved in this matter is the equivalent of denying it the
right to upgrade its work force. However, the problem
faced by the Trial Examiner is whether, having waited
until after the advent of the Union to begin its upgrading
program, Respondent did not also use the program to
affect the exercise of employee rights of self- organization.
This record is convincing that the Respondent did so in the
case of the 10 employees previously discussed.
Considering this background, the nature of the complaint
against Rose, the circumstances of the discharge and, in
particular, the timing of the action, the Trial Examiner is
also convinced, on balance, that the discharge of Jimmy
Rose was intended to affect the results of the election and
to discourage union adherence in violation of Section
8(a)(1) and (3) of the Act, and it is so found. This is further
confirmed by the generally unsatisfactory and conflicting
45 Kemmerling 's testimony was that Moore was almost
constantly away from his place of work Employee McElrath,
whose testimony with respect to Moore was particularly sought by
Respondent, testified that it was not his observation that Moore
was away from his machine during the several days before his
327
evidence of Respondent as to the manner and reason for
his termination.
4. The discharge of John Moore
Moore, who began work on March 11, 1963, testified
that he was the 27th employee hired by Respondent at the
Malden location. Prior to late August 1964, Moore was
successively employed in construction of plant facilities,
in maintenance, as a towmotor operator, and in the
toolroom. Each of these transfers was either at Moore's
request or with his consent. It would appear that his
supervisors had no complaint against him during this
period, and Moore testified that he was satisfied with his
condition of work in each of these jobs, except that he
expected more pay at the towmotor job. During his
employment, Moore lost only about 3 days from work.
Moore was one of the three employees who met with
Carducci, the union representative, when he first came to
Malden in July, the other two employees being J. P.
Battles, whose discharge has been previously discussed,
and William Wages, whose termination is considered
hereinafter. Moore was active on behalf of the Union and
was one of the union observers at the election on
September 21.
As previously noted, about September 1, Toolroom
Superintendent Waters told Moore that Respondent had
picked him as one of the union leaders and informed
Moore that he (Waters) "was supposed to write [Moore]
up, but that he wasn't going to."
It appears that very shortly thereafter, Moore was
involuntarily transferred to the foundry as a molder, a job
which Moore testified he did not like and which was
performed, of course , in an atmosphere of considerable
heat and discomfort. Moore protested this transfer to
Waters, for whom he was then working. According to
Moore's testimony, Waters told Moore that, "it was not his
idea, it was Bill Donovan's idea to transfer me, and he had
already told me that they had me picked as one of the
Union instigators." This is not denied by Waters, except
for reference to "instigators," which has been previously
discussed. It is found that the conversation occurred
substantially as testified by Moore.
Without detailing all of the evidence, it is clear that
Moore's production in the foundry was deficient as to
quality and quantity of pistons produced. Indeed, this is
the purport of his own testimony. Moore admits that on
one occasion Leadman Hart told him that he was going to
have to work harder and run less scrap, that if this
situation did not improve, "a lot of us were going to be
looking for jobs."
Kemmerling, who was a foreman in the foundry at the
time, testified that Moore was extremely inattentive to his
work, constantly produced excessive scrap, and that
Kemmerling on numerous occasions talked to him about
this. However, just as Moore tended to play down his
deficiencies in the foundry, I am convinced Kemmerling
was considerably exaggerating them. It is inconceivable
that Moore would not be written up, much less retained in
the foundry for 3 to 4 weeks, if Moore's conduct were
actually what Kemmerling testified it was practically every
day. 45
discharge , stating, "John had been over the machine for a pretty
good while he had been molding , and, of course , I don't think
he was doing too good " Kemmerlmg 's testimony in this respect is
not credited
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore was discharged at 11 a.m. on September 29, by
Superintendent Rich. Because of Rich's decease, and
consequent unavailability to Respondent, considerable
evidence as to the happenings on that morning were
admitted into evidence over the General Counsel's
objection on the ground of hearsay.
Moore's separation report, signed by Rich, was placed
in evidence by the General Counsel. It states that Moore's
production was poor and that Moore had said he did not
care if he were fired or not. This latter comment was
denied by Moore. Moore further testified that Rich said he
was "sorry," in giving him this termination.
General Counsel's witness Estel McElrath testified, on
cross-examination, over General Counsel's objection, that
before the start of work on September 29, he overheard a
conversation between Superintendent Rich and Moore in
which Rich asked Moore to speed up and try to do better,
at which Moore, in a laughing manner, said that his only
other speed was slower. Rich then turned and walked
away. This evidence was obviously not hearsay and is
credited .41;
Kemmerling and McElrath testified that Rich had told
them before that day that he thought he was going to have
to fire Moore. Kemmerling further testified that 1Q to 15
minutes after Rich had terminated Moore, Rich came in
and told Kemmerling to take Moore off the worksheet
because he had fired Moore. Rich told Kemmerling that he
had talked to Moore about working faster and Moore
stated that the only other speed he had was slower.
Kemmerling also testified that Moore told Rich that the
latter could go ahead and fire him. The first part of this
conversation, which is supported by the direct evidence of
McElrath is credited; however, in the absence of any
direct evidence in support, it is not found that Moore told
Rich that he did not care if he were fired. According to
Moore, Rich on two occasions, during Moore's brief stay in
the foundry, told Moore that he (Rich) was "going to fire
my a-."
General Counsel's witness Medlin was also permitted to
testify, over General Counsel's objection, on cross-
examination, to a conversation with Rich, after the
discharge of Moore, in which Rich said that he had warned
Moore several times, and was reluctant to terminate
Moore because of his position as a leader in the union
movement but had no alternative. Kemmerling and
McElrath also testified that Rich made somewhat similar
statements to them before Moore's discharge.
After further consideration of the record, in view of the
self-serving nature of Rich's assertions, and, indeed, the
necessity which he apparently felt to protest his good
intentions , the Trial Examiner has serious reservations
about the reliability or probative value of these assertions.
In addition, the record shows that Rich, at the time, was
purposefully attempting to secure support for his decision
to discharge Moore from others, as evidenced by his
request of employee McElrath to sign Rich's written
account of the latter's conversation with Moore on the day
of discharge. For these reasons, no weight has been given
to the reports of Rich' s assertions with respect to Moore's
discharge.
Unquestionably Rich spoke to Moore about working
faster (but not specifically about his alleged scrap), before
Moore started work on the morning of his discharge. Moore
46 The only question of Moore relating to this was put by
Respondent's counsel, who asked whether Moore had made such
a comment to Hart This was denied by Moore
made a facetious reply. According to McElrath, neither
man showed any evidence of anger. Unfortunately, we are
unable to have Rich's testimony. However, it does seem
significant to the Trial Examiner that, on this occasion,
Rich did not immediately discharge Moore, as would have
been natural, if he had considered Moore's remark
insubordinate. Nor does the termination report made out
by Rich indicate insubordination.
Moore was not discharged until 11 o'clock in the
morning, some hours after the early morning conversation
with Rich. During that period, Moore testified, without
contradiction, that he was having trouble with his
machine, which, assertedly, had not functioned properly
on the preceding shift. When he sought assistance in this
respect from Leadman Hart, this was refused.
The situation has other disturbing aspects. Moore is
shown to be one of Respondent's earliest employees, with
whom Respondent found no fault until the advent of the
Union and Moore's participation in it. Almost immediately
Moore became the object of special attention by
Respondent. Waters was directed to write up Moore, but
refused to do so. Then Moore was transferred to the
foundry, a not particularly pleasant place to work, for the
first time against his desires, and, apparently, against the
wishes of Waters, Moore's supervisor. This, of course, was
shortly before the election. Waters, at the time, indicated
that Moore's union activity was involved.
Although Moore performed poorly in the foundry, he
was not there long. The record as a whole indicates that
Respondent had experienced some difficulty with scrap in
the foundry previously, but the record also indicates that
the real tightening up on employees began after the Union
started.
It is somewhat difficult to believe that Moore, although
possibly not adaptable to foundry work, in 3 to 4 weeks
became a totally useless employee when, from the
beginning of Respondent's operations, he had been a
satisfactory worker.
After the election, of course, Respondent became aware
that, notwithstanding its strenuous antiunion activities, a
majority of the local rank-and-file employees still
supported the Union, as indicated by the election.
Objections to the election had been filed, as of
September 23, raising the possibility of another election.
Within a few days thereafter Moore, one of the three
initiators of the union drive, was terminated. J. P. Battles
had previously been terminated. Later, Wages, the third of
the instigators of the union movement, and an admittedly
good employee, was terminated, under circumstances
discussed hereinafter
On the record as a whole the Trial Examiner is
convinced that the reason advanced for Moore's discharge
was a pretext, and that Moore, in fact, was discharged for
his union activities in violation of Section 8(a)(1) and (3) of
the Act.
5. The layoff of Joseph A. Butler
Butler was first employed about February 4, 1964.
Previous to this time Butler had one leg amputated and
walked with the assistance of an artificial leg. This was
known to Respondent at the time he was hired, and Butler
was told by Schoemehl at the time he was employed that
Respondent would keep him as long as he was able to do
the job assigned, but if he could not handle the job, he
would be let go.
Butler was assigned to the task of "racking inserts,"
which he did until he was laid off on approximately
STERLING ALUMINUM 329
October 24, 1964. On that day Leadman Howard Hart
came to Butler shortly before the end of the shift and told
Butler, "I hate to do this, but due to the overhead we are
going to have a layoff and you are in the layoff."
It was testified by Schoemehl that Superintendent Rich
told him that Butler "was not able to do all of the duties of
his job," and that Schoemehl thereupon told Rich that he
would have to lay Butler off. After he was laid off Butler
had a conversation with Schoemehl (presumably while he
was still plant manager ) in which the latter stated that
Butler would be called back when Schoemehl found
something that Butler was physically capable of doing.
There was no evidence offered that Butler was part of any
larger layoff of employees or that there was any reason for
his layoff other than his physical handicap, other than
Leadman Hart's statement to Butler.
Respondent adduced testimony from Kemmerling and
Schoemehl, and General Counsel from Butler and
employee Estel McElrath on the issue of whether Butler
could or could not do his job.
Kemmerling's testimony was that McElrath had worked
on his shift and under his supervision, but that he had no
personal knowledge who recommended that Butler be laid
off, "unless it was Mr. Rich." He described Butler's job as
follows: "He has an insert table. The inserts come in
barrels. They put this barrel on barrel lifts, raise it up and
the inserts come out on the table. Then he racks the
inserts one by one. Then he takes the trays off his table,
puts them on the house docks to be delivered to the
molders."
Kemmerling then testified that the part of the job that
Butler would not perform was putting the barrels, which
are quite heavy, on the barrel lift, and when he got his
racks filled someone else would have to lift them off the
table and put them on the house docks or flats for him.
Kemmerling further explained that the barrels are put on
the barrel lift by use of a two-wheel barrel cart.
Kemmerling asserted that Butler did not push the two-
wheeled cart, but that his replacement can push it It was
stated that when Butler was employed that he was helped
by a number of employees, among whom only Estel
McElrath testified.
On cross-examination Kemmerling admitted that the
location of this operation and some of the procedures had
changed since Butler had been laid off, but asserted that
Butler's replacement, Smith, "is racking the inserts off the
table with the barrel racked up like Mr. Butler racked it."
Schoemehl testified that he had observed Butler at
work; that Butler was unable to get inserts from the insert
room, bring them to his table and load inserts on the lift;
and that Butler had trouble transferring trays from the
table to the flats; and that he had observed McElrath
assisting Butler.
McElrath is still employed by Respondent as a towmotor
operator, one of whose functions is to bring barrels of
inserts from another building to the foundry. From his
testimony, it appears that he normally sets these barrels at
Smith's table just as he did when Butler was employed.47
He did help Butler lift a barrel on occasion. He apparently
has not done so for Smith, although McElrath explained
that Smith "didn't necessarily do the same thing. He
picked them out of a barrel and laid them on the table."
Butler testified that his disability did not prevent him
from performing his work and that no one complained to
him in any manner about his work. He also asserted that
he loaded and transported barrels of inserts on the two-
wheeled cart which was fitted with a special contrivance
for this purpose. Butler admitted that this was more
difficult for him than a man without disability. Butler was
not advised at the time that his layoff was occasioned by
his disability.
Butler signed a union card and attended union
meetings. According to his undenied testimony, he was
among a group of foundry employees whom Leadman
Howard Hart stated had all signed union cards.
The resolution of this issue presents a difficult problem.
It is altogether plausible that Respondent should eliminate
handicapped workers to achieve greater efficiency. It does
not follow from the mere fact that this layoff occurred
during an antiunion campaign that it was necessarily
motivated by antiunion considerations.
On the other hand the timing of this layoff cannot be
ignored, occurring, as it does, within a month after the
election, at a time when Respondent must be concerned
with the possibility of another election, and shortly after
the discharge of one of the leaders of the union
movement.48
There is no evidence of any expression of dissatisfaction
to Butler about his work or capacity for the job during the
nearly 8 months he was employed. While the Trial
Examiner finds, on the record as a whole, as the
Respondent contends, that Butler required assistance
from other workers that a nonhandicapped worker would
not require, the record does not show that this constituted
any substantial burden on Respondent, or that there had
been any change in Butler's heretofore satisfactory
capacity to do the work.
In this connection, the fact that Respondent was
deprived of the testimony of Superintendent Rich has
been taken into account. However, Respondent did
adduce testimony from Foreman Kemmerling who was
informed as to Butler's work, and under whose supervision
Butler worked, but who had not been consulted with
respect to his separation from employment.
The issue is close, but upon the record as a whole, the
Trial Examiner believes that Butler would not have been
laid off except for the presence of the union issue in the
circumstances, and therefore finds that the layoff of
Joseph A. Butler violated Section 8(a)(1) and (3) of the Act.
6. The discharge of Richard A. Pearson
Pearson began work for Respondent on January 15,
1963, as a welder. He was among the first employees hired
at the Malden plant and apparently was a proficient
employee. He was terminated by Superintendent Waters
immediately after the Thanksgiving holiday in 1964.
"v McElrath 's testimony is somewhat confused as to whether
Smith brings inserts from an insert room to his table His more
specific testimony denies this, and the Trial Examiner would be
inclined to the view that , at least, it is not normal for Smith to do
this McElrath also denied that Butler had gotten his inserts from
the insert room , stating that he was located "at a different place,"
where McElrath set off the barrels for him
" The record indicates Respondent had previously evidenced
an intent to hire and retain handicapped workers. In August
Respondent 's counsel advised Gale Hodges that he thought
Respondent 's employment of Butler and other handicapped
persons was commendable Schoemehl testified that when job
applicant Maylan couldn ' t do the work available, because of a
physical handicap , Schoemehl later found a spot for him in the
warehouse
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pearson signed a union card, attended meetings, and
solicited other employees to join. Thereafter, after the
election, when Assistant Plant Manager Donovan sought
to transfer Pearson to the foundry, according to Pearson's
undenied testimony, Donovan told him that the transfer
was not occasioned by "union activities," indicating
Respondent's awareness of Pearson's union adherence.
The record leaves no doubt that Pearson suspected
Respondent's motive and indicated this to Donovan in
forceful terms.
Fiom Pearson's testimony, it appears that Donovan
sought to transfer him to the foundry as a molder at a
disadvantageous rate of pay, on the ground that there was
not enough work for Pearson to do as a welder in the
toolroom. At the time Pearson was training another
employee in the toolroom to do welding. Pearson refused
the transfer, advised Respondent that he was going back
to his work station, and that Respondent could "either fire
me or lay me off, it doesn't make a damn." He asserts that
his supervisors did not give him an assignment for 3 days
and then advised him that he would be given his job back.
Superintendent Waters testified that he was unaware that
Pearson had been given no work for 3 days, but evidenced
familiarity with the fact that Pearson had taken the
position that he was not concerned whether Respondent
fired him or laid him off.`'''
Pearson testified that lie was sick with a cold 2 days
prior to the Thanksgiving holiday and called in on each of
these days. He was discharged by Waters and Leadman
LaChance when he returned on the first day after the
holiday, on the ground that he had not been coming in to
work regularly.
Waters testified that he had frequently talked to
Pearson about absenteeism, that he had no knowledge of
Pearson calling in, and that he discharged Pearson
because he needed a welder and could not depend on
Pearson. Waters raised no question as to Pearson's ability,
stating that Pearson was a good welder and he (Waters)
wanted to keep him
Pearson's attendance record, which is probably not
complete (only 1 of 2 days he was absent prior to
Thanksgiving is shown) reveals that he was absent 18
times during 1964, 11 of which were unexcused.
During his last absence from work, Pearson was seen by
Chief Guard Gourley working on his automobile at a
private garage which Pearson previously owned. Pearson
states that after he was discharged he saw a notation in
his personnel file stating that he had been discharged for
calling in sick and working at another lob. This, however,
is not inconsistent with Water's testimony that Pearson
was unreliable, and Pearson at no time appears to have
made the explanation to Waters that he made at the
hearing, as to how it came about he was working on his
automobile at a private garage when he had called in as ill.
On the facts presented the Trial Examiner is not
persuaded that the General Counsel has sustained the
burden of proving by a preponderance of the evidence that
Pearson, was discharged because of his union adherence
and it will be recommended that this allegation of the
complaint be dismissed.
" General Counsel contends that this attempt to transfer
Pearson, which is not denied, was intended to cause Pearson to
quit his employment General Counsel refers to the testimony of
employee Cook that Superintendent Rich had told Cook that the
only reason Pearson had been transferred to the foundary was to
7. The December 4, 1964 , discharges
a. The evidence
Larry Golden, Harold Cough, Lloyd Evans, and Gary
Burrow were terminated on December 4, 1964, according
to Schoemehl, for failure to make a production standard on
piecework operations equivalent to an average of $1.75 an
hour. Golden was later recalled to work Frankie Rice was
laid off from the foundry on December 8, 1964, allegedly
because the number of workers in the foundry separated
from employment on December 4 so affected production
in the foundry that there was not sufficient work to keep
him employed. Rice was recalled to work in 5 weeks.
The evidence with respect to each of these employees is
as follows.
Larry Golden was first employed on May 5, 1963, as a
molder in the foundry. This is a piecework operation for
which the base (or "down time") rate was $1.50 an hour.
He was thereafter made a setup man at $1 80 an hour and,
although he did some molding thereafter, was not on
production at the time of his termination on December 4.
Golden testified, without contradiction, that he had
never been criticized about his work and that Foreman
Kemmerling had stated that he was satisfied with Golden's
work. Golden admitted on cross-examination that when he
was on production he averaged less than $1.75 per hour
during part of his working time (it appears that Golden's
gross pay per 37-1/2 hour week was $60-65). However,
Golden credibly testified that he had never been informed
that he was expected to attain a production level of $1.75,
and had always been under the impression that $1.50 was
the straight time base rate and "all over that was extra "
According to Golden's credited testimony Foreman
Kemmerling told him in the afternoon of December 4 that
he would be "let go" that afternoon, "for past production,
but he said he would try to do everything he could. He said
him and Mr. Schoemehi over there called tip and talked to
them [apparently Respondent's management at
Bridgeton] and tried to get them to keep me and they said
they were going to have to let me go. And he told me it was
the hardest thing he had ever done in his life ... I asked if
I could not stay on the job I had because it was not a
production job and he said no, they wanted to let me go."
Kemmerling told Golden that if he did not let Golden go,
Respondent would send someone else who would do so
and advised Golden not to feel too bad because others
were being let go also.
Golden was recalled to work on April 13 and put back in
his position of setup man. He was not informed of
Respondent's asserted production standard of $1.75 per
hour even then.
Golden had signed a union card and attended union
'neetings in the Malden area.
Lloyd Evans was employed on September 9, 1963, in the
foundry as a molder. He signed a union card at the one
meeting of the Union which he attended. His testimony
concerning conversation with Chief Guard Gourley
concerning the Union has previously been noted.
Leadman Howard Hart told Evans on December 4 that
he had orders to to let four employees on that shift go, and
get him to quit The circumstances attending the transfer and
termination of John Moore, discussed previously, would also add
substance to this contention However, this matter was not
alleged as an issue, nor litigated, and the Trial Examiner does not
find it necessary to pass on this contention
STERLING ALUMINUM 331
that he did not know the reason. In fact, Evans was not
informed of the reason for his termination by anyone. Prior
to that time, Evans had not been told that his production
was not up to Respondent's requirements, the only
complaint about his work being a discussion with
Schoemehl about certain "bad" pistons, which Evans said
had been cleared up with the "head set up" man.
Evans testified that his production was better than $1.60
an hour and sometimes ran up to $2 per hour, but on the
average was less than $1.75.
Harold Gough was employed in November 1963, in the
replacement department. He was employed for a
substantial proportion of his time on machines on which no
piece rate was assigned and to which only an hourly rate of
$1.50 was applicable. This often occurred for a week at a
time. When Gough was assigned to operations on a piece
rate, he testified he usually "made production." As he
further stated, "most usually I made a little extra on it,"
which he agreed was "a little over $1.50 an hour."
However, Gough also testified that "before the union
election was going on," Leadman Randolph had on two
occasions told him he should be averaging $1.75 an hour.
He stated, however, that he was not familiar with a
company policy that "required" pieceworkers to make
$1.75 an hour and denied being told, shortly before he was
terminated, that $1.75 an hour was expected of him.
Gough had signed a card for the Union and attended
union meetings in the area.
On the afternoon of February 4, Superintendent Trost
told Gough that he had some bad news for him, that he was
being laid off. Trost said that he had nothing to do with it,
that the names of those who were to be let go had been
sent down from St. Charles.
Superintendent Trost, however, testified that he
personally made a comparison of the production records of
employees in his department, and that he made the
decision to choose six employees, including Gough, who
were not averaging $1.75 an hour. This testimony is
contradicted by Schoemehl, who testified that the choice
of employees to be laid off was made by management at
Bridgeton, on the basis of records at Bridgeton.
Schoemehl stated that he had no part in making this
choice, and disagreed with some of the selections. He
further stated that he instructed the supervisors of the
specific employees to notify them of their termination.
It is noted that Gough's testimony as to what he was told
by Trost at the time of his layoff is consistent with the
testimony of Schoemehl. Trost could not remember what
he said to Gough when he laid Gough off. On the basis of
the record, and other evaluation of Trost's testimony
discussed herein, his account of the circumstances of
Gough's discharge is not credited.
Gary Burrow was employed by Respondent on
November 18, 1963, in the foundry. He was on piecework
at the base rate of $1.50. Burrow's normal gross weekly
pay averaged from $1.70 to $1.75 an hour. He was never
criticized for his production or averaging less than $1.75 an
hour, although he was present when groups of foundry
workers were "chewed out" for scrap and production.
When Burrow returned from his vacation, he was
informed by a fellow employee that he was "unemployed."
Burrow called Foreman Hules who confirmed that Burrow
had been laid off and said that he didn't know the reason
for this. Burrow then called Schoemehl who advised
Burrow that he had been laid off permanently and stated
that he doubted that there was a chance of Burrow being
called back. Schoemehl at first stated that he didn't know
the reason for Burrow's separation from employment.
Burrow accused Schoemehl of lying, whereupon
Schoemehl said that the termination might have been
because of past production. Burrow disputed that this
could be so. This testimony of Burrow is not denied,
although Schoemehl asserted that he could not recall
Burrow accusing him of lying.
Burrow had signed a union card and, as previously
noted, had expressed his strong preference for the Union
to Leadman DeNoon.
Frankie Rice was first employed by Respondent in
September 1963. He was working as a "gate cutter" in the
foundry at the time of his layoff on December 8, 1964. Rice
testified that there had been no complaints about his work,
and when he was laid off he was told that Respondent was
short of orders. He was called back to work in 5 weeks,
together with other employees who apparently had been
laid off by Respondent.
Rice had signed a union card, but did not attend any
union meetings.
Respondent's reason for the termination of Golden,
Evans, Gough, and Burrow is assertedly that these
employees were not making a standard of production
which Respondent required of its employees, which
necessitated their termination and replacement by other
employees.-r,0
However Respondent did not produce any witness
having firsthand knowledge of the reason for the action or
who actually made, or participated in, the decision to
terminate these employees. Schoemehl merely testified
that he was called on the telephone by a certain clerical in
Respondent's home office in Bridgeton, Missouri, and
instructed to terminate certain named employees because
they were not making piecework production equivalent to
$1.75 an hour.51 Schoemehl testified that there were more
than 14 on this list, but that he had persuaded his
superiors to rescind their orders except for 14, whom he
instructed his supervisors to terminate. Schoemehl clearly
had no part in evaluating the records of these employees
and, in fact, prior to the telephone call was unaware that
the records of these employees were being evaluated for
this purpose. Schoemehl asserted that he thereafter
reviewed the records of Golden, determined that he had
been working on operations on which it was difficult to
make production, and persuaded Respondent to take him
back. No other testimony was offered on the decision to
terminate these employees.
Further, the Trial Examiner finds that there is no
persuasive evidence that Respondent had a standard,
known to the employees, which required a minimum
production on piecework equal to $1.75 an hour.
It was Schoemehl's testimony that the piecework rates
were set on the basis that "after a short training period ,72 a
5° When asked the reasons for the terminations of December 4,
1964, Schoemehl testified, "we were having trouble getting the
amount of production we have to have from each individual in the
plant and what we had to do to make a move to replace the people
who were not producing by somebody who would "
51 This evidence was received, over General Counsel's
objection that it was hearsay , with the clear understanding that it
was not accepted for the truth of the statement, but as an
instructi on upon which Schoemehl acted See 6 Wigmore,
Evidence § 1772
SL At one point Schoemehl stated the training period at 3
months He also first testified that the period of time for which the
employees' records were checked at Bridgeton prior to the
December 4 termination was 2 months Later, when called on
rebuttal, he testified that he understood that this period was 6
months
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man should average at least $1.75 an hour." He states that
the supervisors had been instructed to tell the employees
of this standard, but did not personally know that this had
been done. None of the supervisory employees testified
that the employees were so instructed. The credible
testimony of Golden, Evans, and Burrow shows that they
were unaware of any such standard. Gough's testimony
was that he had been made aware of Respondent's desire
that production achieve a $1.75 level, but not that this was
a required condition of employment.
The absence of any written notice to the employees of
this requirement is particularly striking. Respondent's
letter of July 30, which was specifically devoted to the
subject of improving production makes no mention of this
asserted standard, stating merely that the production of
the individual would be "weighed against a reasonable
level of production," and that "where inadequacies exist
in individual production," the employee "will be so
advised " Further, when, on December 18, 1965,
Respondent issued a memorandum advising the
employees that they would receive, inter alia, a 5-percent
increase in piece rates, no mention was made of any
standard other than the $1.50 rate, which, it was stated,
would remain the base rate.
In fact, the record in this case is convincing that these
employees, each of whom had been 'employed for over a
year, had never been informed that production at higher
than the base rate was a condition of employment. Under
these circumstances, and particularly where the employee
was frequently shifted to and from tasks hourly rated at
$1.50, it would be normal for the employee to consider the
$1.50 base (the point at which his incentive earnings start)
as the required production standard, as the testimony
indicates.53
Lastly, Respondent made no effort to adduce proof,
other than that set forth above, that the employees
terminated, in fact, did not average $1.75 per hour over a
representative period. It would thus appear that Golden
and Burrow, on the basis of their testimony, were
averaging about $1.75 an hour and that Golden, in fact,
was not primarily on a production basis when terminated.
Gough's average was clearly less than $1.75, but it is not
clear from this record whether Evans' average was
substantially below that level.
b. The motion to strike Respondent's testimony
General Counsel, in his brief, renews his motion made at
the hearing to strike Schoemehl's testimony that Golden,
Evans, Gough, and Burrow failed to average $1.75 an hour,
since Respondent failed to produce the records at
Bridgeton which were the asserted basis for the
termination of those employees. In effect, General
Counsel contends that the records are the "best
evidence." The Trial Examiner, after thorough
consideration of the issue, denies the motion to strike for
the following reasons:
(1) Schoemehl's testimony was neither offered nor
received as probative of the truth of the content of the
documents, the normal situation in which the best
evidence rule applies. See 4 Wigmore, Evidence § 1339;
see also footnote 51, supra.
(2) Respondent produced for General Counsel's
inspection records containing the substance of the
information sought, which General Counsel used in part,
without raising an objection as to the form of the records,
itself. Under the circumstances it is found that General
Counsel was not prejudiced by the form in which the
information was supplied.
(3) Even assuming, under the broadest formulation of
the "best evidence" rule, see Padgett v. Brezner, 359
S.W.2d 416, 422 (Mo., 1962) that the records would be the
best evidence, the more liberal federal rule would not
prefer such written records over competent oral testimony
of the facts in a situation such as that involved here. See
Maier v. Publicker Commercial Alcohol Co., 62 F.Supp.
161, 167 (E.D. Pa., 1945), affd. 154 F.2d 1020 (C.A. 3,
1946); see also, N.L.R.B. v. International Union of
Operating Engineers, Local 12, 243 F.2d 134, 135 (C.A. 9,
1957). Cf. footnote 54, infra. Where the applicable
authorities appear to differ, the rule favoring the reception
of evidence should normally be followed. See Rule 43(a),
Federal Rules of Civil Procedure. See also footnote 30,
supra.
(4) While the Trial Examiner is convinced that, in the
interests of accuracy, records should be produced in these
cases where questions of the production of employees, or
their attendance at work over extended periods of time, or
the like, are at issue, cf. McIntyre v. McIntyre, 377 S.W.2d
421 (Mo., 1964), this does not mean , for the reasons stated,
that competent oral testimony can be excluded. However,
the failure to produce records within the control of the
party offering oral testimony may, however, affect the
probative value of the oral testimony offered, see Maier v.
Publicker, supra, 54 or may even give rise to inferences
adverse to the party failing to produce the best evidence.
See Missouri Transit Co., 116 NLRB 587, 588, enfd. 250
F.2d 261 (C.A. 8, 1957); 2 Wigmore, Evidence § 285.
C Conclusions concerning the December 4 discharges
The termination of the employees here involved shows a
pattern of elimination of employees of fairly long service,
with no warning, no previously stated dissatisfaction with
the quantity or quality of their work," carried out with an
attitude of obvious reluctance on the part of the immediate
supervisors most concerned, or asserted mystification as
to the reason for the termination of these employees. In
the circumstances of this case, the inference would be
compelling that these terminations constitute only another
facet in Respondent's campaign to dilute, if not wipe out,
the adherents of the Union among the employees.
This conclusion is rather strengthened than weakened
by Respondent's asserted reasons for the termination of
these employees. The secondhand nature of the evidence
offered as the reason for the terminations carries with it a
basis for its own disbelief. Furthermore, all of the credible
direct and circumstantial evidence, some of which has
"See Michael, Wage and Salary Fundamentals and
Procedures ( McGraw - Hill, 1950), p 194 , "The point at which
incentive earnings start is another important consideration in the
fairness of an incentive plan To the worker this is logically the
point at which his output begins to exceed the minimum task or
standard of output expected " [ Emphasis supplied ]
54 McCormick , Evidence ( West , 1954) at 409 , quotes the
following trenchant comment from Thayer's early work on
evidence "The fact that any given way of proof is all that a man
has must be strong argument for receiving it if it be in a fair
degree probative , and the fact that a man does not produce the
best evidence in his power must always afford strong ground of
suspicion "
55 Even with respect to Gough, the tenor of his testimony as a
whole shows some pressure on him to improve , but no indication
that he was in danger of termination
STERLING ALUMINUM 333
been noted, weigh heavily against the asserted defense.
Thus, it strains credibility that administrative officers, far
removed from the production personnel, on a large scale,
without consulting the production supervision directly
affected if, in fact, "production" was the basis for the
decisions being made. However, Schoemehl, who was at
the time plant manager, admitted that he was not only not
consulted about these decisions, but was unaware that
they were even being made, and disagreed substantially
with a number of those decisions when he was informed of
them.'",
Furthermore, it is clear that the decision to terminate all
of these employees as a group and replace them with new
employees had a serious immediate effect on
Respondent's production, completely out of keeping with
the asserted objective. Thus Schoemehl testified that Rice
had to be laid off for a substantial period of time because
of the lack of work occasioned by the termination of so
many men in the foundry. Production further suffered
because the remaining trained personnel had to be taken
off production to assist new unskilled help employed to
replace those who had been terminated, as the testimony
shows. It is readily inferred that Respondent's about-face
with respect to Golden, apparently a capable employee,
was occasioned by such production problems.''
Schoemehl testified, generally, that after the
replacement of the terminated employees production
improved. Again, no records were submitted in support of
this assertion. Such meager evidence as adduced by
General Counsel from records supplied by Respondent
casts some doubt on the assertion. In any event, too many
unknown factors are involved to permit this type of
argument to be given any appreciable weight, as is noted
hereinafter of a similar claim made in another context.
Upon all of the evidence in the record it is found that the
terminations of Golden, Gough, Evans, and Burrow on
December 4, 1964, had as a purpose to discourage
membership in and activities on behalf of the Union and,
as the layoff of Rice was occasioned at least in part by the
termination of these employees, that layoff necessarily
also partakes of the character of the earlier terminations.
It is therefore found that the termination of Golden,
Gough, Evans, and Burrow and the layoff of Rice violated
Section 8(a)(1) and (3) of the Act.58
8. The discharge of Darrell Hyde
Hyde was employed by Respondent from
December 1963 until December 7, 1964. After a month and
a half in the foundry Hyde was transferred to work in the
warehouse. Hyde signed a union card, attended union
meetings , and solicited others to sign union cards. When
Glendle Elsworth was laid off on July 21, as discussed
above, Hyde was assigned by Superintendent Winchester
to drive the in-plant tractor-trailer truck, although Hyde
told Winchester that he did not have experience in driving
a tractor-trailer. Sometime thereafter an employee who
had been driving the tractor-trailer on the second shift was
transferred and Hyde was informed that he would have to
do all of this work. On the morning of his discharge, Hyde
was assigned still another task that he had never done
before. During the course of the morning he was instructed
to take the tractor-trailer to the outside warehouse and
pick up some pistons stored there. Hyde adamantly
refused to perform this task, which was clearly among his
normal duties, and was discharged.
There is no merit to General Counsel's contention that
Hyde was deliberately overloaded with work to provoke
this situation. The Trial Examiner concludes that the
allegation that Hyde was discriminatorily discharged in
violation of the Act should be dismissed.
9. The refusal to rehire Teddy H. Butler
Butler, who was first employed in October 1963, quit his
employment with Respondent in November 1964. While
still employed he had joined the Union, attended union
meetings, and was one of the two union observers at the
election.
In January 1965, Butler approached Schoemehl
concerning reemployment with Respondent. Schoemehl
advised Butler that he was no longer doing the hiring for
the plant, but that Mr. McAlister was. Schoemehl told
Butler that he would check into the matter for him.
After talking to Schoemehl on two occasions at
Schoemehl's home concerning this matter, Butler met
Schoemehl 1 day shortly thereafter at the plant gate, at
which time Butler asked Schoemehl what he had found
out. Butler testified that Schoemehl said, "it looked pretty
rough for me. That Mr. McAlister didn't want to hire me
because I worked pretty hard for the union and also that
perhaps the union would come up with an election again
and I would still be for the union."
Schoemehl denied that he made this statement, and
testified that Butler asked him whether Schoemehl
thought "it would go hard" for Butler "because he was for
the union, or something like that." Schoemehl testified
that "I told him frankly I didn't know how it would be."
When asked if he told Butler that "it looked pretty rough
for him" Schoemehl stated that Butler said, "Do you think
they will make it rough on me," to which Schoemehl
responded, "Frankly, I don't know how they feel, what
their feeling is."
The Trial Examiner is convinced from the manner in
which this testimony was given, as well as the manner in
which it was worded, that, on this occasion, Schoemehl
made clear to Butler that his reemployment by
Respondent was precluded by his past union activities and
the possibility of another election. In such case further
union adherence clearly would be contrary to
Respondent's desires. It is thus found that Respondent's
determination conveyed to Butler by Schoemehl was
substantially as testified by Butler.
As Respondent contends, Butler did not thereafter
make any effort to see McAlister or file an application for
reemployment. However, such effort would clearly have
been futile.
16 It may be noted that the only records which Schoemehl
testified that he was keeping were of employees who failed to
make at least $1 50 per hour on piecework production.
57 Based on Kemmerling 's admissions to Golden, it is found
that Schoemehl, prior to December 4, sought unsuccessfully to
have Respondent retain Golden , and only succeeded later in
obtaining a reversal of this decision
5 In coming to this conclusion , the Trial Examiner has
considered the fact that 10 employees other than those litigated
here were also terminated on December 4, but has determined
that , on this record , this factor would not affect the conclusion
reached The Trial Examiner has noted also that of these 10, 6
were apparently new employees , hired since the latter part of
August 1964, and of the remaining 4, at least 1 (Glen Parker) had
signed a card for the Union.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There can be no question that Schoemehl, by advising
Butler that his past union activities would preclude his
reemployment engaged in conduct in violation of
Section 8(a)(1) of the Act. As I understand established
Board precedent, by which I am bound, this would also
constitute a violation of Section 8(a)(3) of the Act, with
"the question of job availability [being] relevant only with
respect to the employer's backpay liability." Master
Stevedores Association of Texas, 156 NLRB 1032, 1034,
and case cited, Happy Food Center, Inc., 154 NLRB 702.
Accordingly, it is found that Teddy H. Butler, having
made application for employment to Respondent's plant
manager and having been informed that he was not
acceptable for reemployment because of his union
activities, was thereby discriminated against by
Respondent in violation of Section 8(a)(1) and (3) of the
Act.'"
10 The discharges of the employees laid off on
February 3, 1965
a. The evidence
On February 3, 1965, Foreman Trost laid off Gale
Hodges, Andrew Loafman, Clarence Nettleton, and
George Rose.''" These employees were told that they were
being laid off until the following Monday because of slack
work Rose was told that Trost intended laying off other
employees the following week, thus indicating a system of
sharing the available work. Trost admits the layoff was for
lack of work and it is indicated that there was no intent at
the time to discharge any of these employees. Trost,
however, denies that the men were told to return on the
following Monday, asserting that the layoff was indefinite
from the beginning. This position appears quite
inconsistent, though, with the fact that Trost found it
necessary to send each of these employees a registered
letter just 2 days later, on February 5, 1965, advising them
that "Due to unforeseen circumstances your layoff has
been extended indefinitely." Trost's denial is not credited.
The registered letter from Trost was received by the
four employees on Saturday, February 6. According to the
undenied and credited testimony of George Rose, he went
to see Trost about this that day. As Rose testified-
I asked Joe Trost could he explain that letter to me, he
says, "No." I said, "Why can't you?" He says, "I just'
can't " I said, "Well, Joe, you told me to come in
Monday and this here, the way it reads there is no
telling, I might never be going back." He said, "Well,
George, I get my orders from higher up, I don't have
anything to do with It."61 I said, "Well who does?" He
said, "Well, I don't know." I told him, "Well, I am
going to find out." So I left his house.62
Trost testified, concerning this visit by Rose, that he
told Rose that the letter was intended to be a termination
of employment, and that the reason was "stated in the
letter." In his testimony Trost agreed that the letter does
not explain the reason, but asserted that it meant the men
had been terminated. This is not credited. Trost's
insistence that the employees were discharged by his
letter is not only inconsistent with the language of his
letter, but is inconsistent with the fact that Respondent
found it necessary to subsequently advise the employees
by another letter that their employment had been
terminated
Loafman received a letter dated February 17, 1965,
signed by Personnel Manager George R. McAlister
advising "your separation from employment with Sterling
Aluminum is now considered permanent as of February 4,
1965 " Hodges and Nettleton each received a letter about
a month after their layoff stating that their separation from
employment was permanent, in each case apparently
giving no reason. George Rose received a letter dated
March 26, 1965, signed by McAlister advising that his
work record had been assigned to his department for
review upon Rose's layoff, and had been found not
satisfactory in Respondent's opinion, therefore Rose's
employment was "permanently terminated."
Foreman Trost testified that all four employees had
been replaced. The following are the facts specifically
relating to each of these four:
Gale Hodges- Hodges, who was first employed by
Respondent in the warehouse on April 12, 1963, and later
transferred to the inspection department, was fourth in
seniority among the inspection department employees
when laid off. At that time, the complement of the
department was estimated by the various employee
witnesses as in the twenties or thirties in number.
Hodges made no effort to make his union adherence a
secret and, as previously found, it was known to
Respondent.
During the course of Hodges' employment he received
no complaints about his work, but admittedly he had been
warned that he would be written up if he did not come in to
work on time. Hodges, however, testified that he was not
aware that he had actually been written up.
On the other hand, Foreman Trost admitted that Hodges
was one of his better employees, and for that reason was
selected to make trips to other plants in other cities to
check on problems with Respondent's products at those
places. According to Hodges the last of these trips was not
long before he was laid off. Trost also used Hodges to
assist him with recordkeeping normally done by Moraty,
when the latter was absent from the plant.63
Respondent contends that Hodges was terminated for
excessive tardiness and a slackening off of production. No
production figures were produced, and the import of
Trost's testimony was that the alleged lessening of
production was caused by Hodges' lateness , which gave
him less time in which to produce. Trost and Moraty wrote
up Hodges on December 15, for tardiness and absences.
However, no other evidence concerning Hodges' alleged
'y At the hearing Respondent made some point of a rule against
reemploying persons who have quit It was also indicated that the
rule was frequently breached In any event, this point is not
pressed in Respondent's brief and it has been treated as
abandoned
60 There is indication from General Counsel's witnesses that a
few others may have been laid off at the same time, but the
number of these and the circumstances are too uncertain for a
finding
11 Trost testified, in fact, that he discussed these four men with
Schoemehl before sending these letters
12 After his meeting with Trost, Rose asked Respondent's
counsel to find out the reason for his layoff When the explanation
was not forthcoming within the time counsel said he would try to
get it for Rose, the latter did not further pursue the subject with
counsel
s' A revealing indication of Trost's evaluation of Hodges came
out on cross - examination of Hodges on another subject Hodges
testified that Trost said to him on one occasion, "A young man
your age and your ability is crazy working like this, you should go
back to college "
STERLING ALUMINUM 335
absences was adduced, and no claim was made in
testimony or in Respondent's brief that this was a factor in
Hodges' termination.
The record shows Hodges' tardiness from June 1964
until he was laid off in February 1965. Because of the
nature of Foreman Trost's explanation of these instances,
it is somewhat difficult to determine the proper
interpretation of all of the times shown on Hodges'
timecard. but the following appear and are found to be the
facts between June 10 and December 9, Hodges was late
15 times, including 11 occasions on which he was tardy 5
minutes or less The maximum amount of tardiness during
this period was 11 minutes t'a On one of these days Hodges
worked a considerable amount of overtime. -
On the date that Hodges was written up by Trost and
Moraty he was not tardy and had not been since
December 10, when he was 1 minute late. He had,
however, also been late 5 minutes on December 9. Trost
testified that Hodges had an excuse for each instance of
tardiness.
After December 15, it appears that Hodges was 2
minutes late on December 21 (when he was instructed to
come in at 8 a.m.) and 19 minutes late on December 29.
These occasions were during a period when work was
slack and Respondent was taking inventory. He was also 2
minutes late on January 11 and on January 20, but on both
occasions worked a considerable period past quitting time.
George Rose Rose was employed by Respondent in
April 1963, and at the time of his layoff in February 1965,
was about 5th or 6th in seniority among the employees who
were working in the inspection department. Junior
employees in point of service were retained. Rose testified
that there had been no criticism or reprimands of him
because of his work. Trost asserted that he had warned
Rose time and again about his poor inspection, and stated
that he had written up Rose about this, either once or
twice, he did not know. The only specific delinquency
which Trost recalled was "passing shadows in the pin
fitting," that is passing loose fittings in the piston, which
Trost stated would wreck a motor and cost the Company
considerable money.
Respondent offered only one "write-up" with respect to
Rose. This report signed by Trost and Moraty, is dated
January 5, 1965, and states that, in regard to 15 pieces,
"George Rose inspected #311 piston and passed [written
over erasure]-shadow in pin bosses [erasure] no reason
[written over erasure] for this poor inspection. This man
was warned previously [written over erasure] 1/5/65."
General Counsel claims that the condition of the "write-
up," as shown by erasures, indicates fraud. Similar
changes have been noted on the Nettleton "write-up"
considered hereinafter. The Trial Examiner does not feel
that it is necessary to pass on General Counsel's claim.
Trost admitted on cross-examination that this was the only
report written with respect to Rose.
When on cross-examination, Trost was shown Rose's
own production report for February 5, which revealed that
Rose had reported the shadows in the pin holes, himself,
that day, Trost testified that after Rose had turned in his
report that day, he and Moraty had found the additional
bad pistons which Rose had passed.
In addition to his testimony on both direct and cross-
examination that the reason for Rose's discharge was
"poor inspection," it is noted that when Trost was asked
what had occurred between January 5 and February 5 to
cause him to decide to discharge Rose, Trost then testified
that this was due to Rose's dwindling production,
concerning which Trost assertedly also reprimanded Rose.
This was not further pursued by the parties.
As has been previously noted Rose's adherence to the
Union was well known to Trost and Muraty.
Clarence Nettleton Nettleton was employed by
Respondent in September 1963, and one week later was
transferred to the inspection department.
Foreman Trost testified that Nettleton was discharged
for mislabeling boxes, also asserted to be the reason for
the discharge of Andrew Loafman, considered hereinafter.
Respondent produced two written grievances against
Nettleton signed by Joseph Trost and Mary Moraty. The
first, dated February 17, 1964, contains certain changes, as
well as one addition that changes the document materially.
Thus, although the original writing stated only that
because of packing "40 pieces" wrong, Nettleton had been
"warned," the word "previously" was thereafter added.
General Counsel appears to contend, as noted
previously, that these changes indicated that this
document is fraudulent. However, while these changes
raise some question, this hardly reaches the point of proof
of fraud. Moreover, as previously noted in the case of
George Rose, it is not considered necessary to pass on this
issue.
The second notice dated January 28, 1965, a little less
than a year after the first, was signed by Trost and Moraty,
and shows no significant physical changes. It states:
"Clarence Nettleton was warned previously to watch
oversizes on head of Piston he packed 303-Std and were
sent over to the warehouse the 303-020 were mix in the
carton with Std the carton was fable Std on the outside."
As with respect to Loafman whose discharge is
considered hereinafter, it is asserted that these reports
were made out when the error was discovered and the
reports were then backdated to the time, it is stated, the
Respondent's records showed the error to have
occurred." These records were not produced.
Nettleton testified that he was not aware that any of the
pistons which he had inspected had been returned.
Foreman Trost testified that, as in the case of Loafman,
Nettleton's production had also been dwindling No
records or other detail on this was submitted. Nettleton
was not questioned on this point.
Nettleton signed a card for the Union and attended
union meetings.
Andrew Loafman: Loafman, who was employed on
April 9, 1963, was one of the first employees hired in the
inspection department. Foreman Trost testified that
Hodges, Rose, Loafman, and Nettleton, in fact, were
receiving slightly higher rates than other employees
because of their longer service in the department.
Loafman testified credibly that he had never been
reprimanded or criticized individually concerning his
work, although he was present in groups of employees who
were called together by Trost and lectured on improperly
passing pistons. Other witnesses and Trost confirm that
group talks about improper inspection were held in the
inspection department.
61 Hodges ' timecard showed him arriving at 7 33 a in on two
occasions , 7 31 (or 7 37) on one occasion, and 7 .35 a in on another
occasion Trost was almost certain , however , that on those
occasions , Hodges' starting time was 7: 30 a in rather than 7
65 In the case of the report dated December 17, 1964, Trost
testified that he was sure this was discovered prior to the time
Nettleton was laid off because, he states, he talked to Nettleton
about this
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in some other instances, Trost's testimony tended to
be less than precise as to the reason, or the entire reason,
for the termination of Loafman. Thus, at the outset, Trost
testified only that his reason for terminating Loafman was
that Loafman was putting wrong labels on pistons which
he packaged, and that he had warned Loafman about this
and had written up a grievance against him for this,
because of complaints from customers receiving
mislabeled boxes. Such a grievance, dated January 26,
1965, was received in evidence. Trost testified that he
talked to Loafman about this at the time.
Foreman Trost thereafter was shown a grievance dated
January 22, 1965, which had been made out by Mary
Moraty, but signed by both, stating that "Andrew Loafman
was warned and told about passing pistons with high nib
when pin fitting. We found two pistons with high nibs
#933." Trost testified that he had warned Loafman and all
other operators about this Although Trost never
specifically identified this as a reason for Loafman's
discharge, he did testify that Schoemehl and he ag eed on
Loafman's discharge because of his passing "bad work."
With respect to the complaint of mislabeling, Trost
asserted that the report dated January 26, 1965, could
actually have been made out "a few days, a few weeks or
even a month" after that date, since the report would be
made out about the time when the mislabeling happened to
be discovered, while the report was dated as of the date
Respondent's records assertedly showed that Loafman
had packaged the pistons in question. This testimony
clearly indicates an uncertaintly that Trost was even
aware of the mislabeling at the time Loafman was laid off
on February 3, and raises considerable question as to
Trost's assertion that he recalled talking to Loafman about
this particular mislabeling incident before he was laid off.
The evasive and uncertain character of Trost's testimony
generally concerning this alleged conversation, and the
fact that he also had no recollection of anything Loafman
said, leads the Trial Examiner to the conclusion that Trost
did not reprimand or criticize Loafman on this occasion.
Trost also admitted that, because inspectors often
worked together, and an inspector's tag in a box did not
always mean that inspector was responsible for the entire
production in the box, he was not positive that Loafman
was responsible for the mislabeling of pistons in the box.
Since Loafman was working with another employee on
the day Moraty found two pistons with high nibs, Trost
also indicated that he could not be certain that Loafman
was at fault in that instance. As previously noted Moraty
did not testify.ss
Foreman Trost also cast considerable doubt on the
seriousness with which Respondent considers these
matters by his admission that two other high nibs passed
by his inspectors, since the time of Loafman's discharge,
had actually wrecked two motors, at considerable cost to
Respondent; but, notwithstanding the passage of
considerable time, no effort had been made to determine
who was responsible.
Loafman signed a union card, was active in securing
cards from other employees , and attended union meetii.gs.
It is suggested in Respondent's brief that Loafman was
"involved" in the return of the Chrysler pistons No such
involvement was shown. This issue has been previously
discussed in connection with the termination of employee
Midkiff.
b. Conclusions as to the discharges of employees laid off
February 3, 1965
We are bete concerned with four of the most senior and
highest paid among the employees in the inspection
department. Quite clearly there was no intention to
discharge these employees for their alleged delinquencies
when they were laid off on February 3. In fact they had
been told to retuin on Monday, pursuant to an obvious
intent on Trost's part to spread the work. However, after
Trost had talked with Schoemehl, these layoffs were
extended "indefinitely," for reasons which Trost at the
time found it expedient not to disclose when queried by
Rose.
The record is convincifl , that Hodges had been
considered a superior employee, and, if judged by their
seniority and higher rate of pay, the others were
considered at least satisfactory, and probably good
employees, at the time they were separated from
employment. In the face of the credited employee denials,
the Trial Examiner does not credit Trost's generalized
claims that these employees had been previously,
individually, warned of alleged delinquencies. In the cases
of Rose, Loafman, and Nettleton there is considerable
doubt that Trost could ascertain with ceitainty that those
employees were even responsible for the faults charged.
Hodges, of course, had been guilty of tardiness and had
been warned. However, all of this was known to Trost on
February 3, as were practically all of the alleged
delinquencies attributed to these four employees, but
Trost evidenced no intention to discharge the four then.
Nor is there any explanation as to the reason for
Respondent's abrupt shifting of their status thereafter of
for the decision to discharge these employees at a later
time because of asserted faults for which they were not
discharged at the time of occurrence of the faults. It is
clear that they were not terminated in a permanent
reduction in force, for these employees were replaced
by other, and presumably _ ess experienced employees,
whose names Trost did not recall. Less senior employees
were also retained 67
On this record the Trial Examiner has no doubt that the
reasons advanced for the termination of these employees
were pretexts The discharges clearly fall within the
pattern established by Respondent of eliminating
adherents of the Union in order to defeat the union
campaign , and it is found that by the discharge of Andrew
Loafman, Clarence Nettleton, George Rose, and Gale
Hodges the Respondent violated Section 8(a)(1) and (3) of
the Act.
11. The dischaige of John Barney
Barney was employed in the latter part of 1963 and
began work in Superintendent Trost's division. After a
short while on the 3-11 p.m. shift, he was transferred to
the grooving operation on the 11 p.m-7 a.m. shift. At this
ee Loafman testified that he did recall something being said
about two defective pistons being found in a load of pistons, but
testified that nothing was said to him, personally , about this This
is credited
e' Trost 's testimony that although he still has complaints about
inspections , but less so, since these employees were let go, has
been noted However , I do not believe that this generalized,
unsupported statement is entitled to weight on the basis of a mere
bare statement, and in the absence of evidence showing that there
were no other variables affecting the result claimed
STERLING ALUMINUM 337
time Respondent was teaching Barney to become a set-up
man, which would have been a promotion. This was
discontinued at one point, however, because of lack of
work. Some time prior to the election, according to the
undenied and credited testimony of Barney, Trost told him
that he had planned to put Barney back on set-up that
week, "but this damn union business came up and I have
got to think about it."
Barney was active in the union organizational campaign,
obtained signatures of other employees on authorization
cards, and attended union meetings.
About 3 or 4 months before Barney's termination, when
Barney threatened to quit if not given day work, Trost
transferred Barney to the day shift. Barney was not
reprimanded or criticized for his work until the day of his
discharge. On the record as a whole it is found that Barney
was one of the better employees in the operations in which
he was employed."'
During the latter part of his employment Barney was
assigned to operating excello machines. This operation
involved placing two pistons on platforms containing
mechanisms by which the two pistons were clamped to the
platform while a moving spindle performed a finishing
operation on the pistons. After this cycle was completed,
the operator removes the two pistons and places two more
pistons on the platform (referred to as the loading
operation), and then the spindling operation recurs. The
operator is paid for his production on a piecework basis,
being paid, in addition, for the time his machine is
necessarily out of operation ("down") at the rate of $1.50
per hour.
On the morning of January 17, 1965, Superintendent
Trost called Barney into his office. There in the presence
of Leadmen Windisch and Aaron and employee Blalock,
Trost stated that the timesheets for the previous day of
the five excello operators (made up by the employees
themselves) showed that Barney had more pistons and
more "down time" than the others. Trost, having checked
and discovered that Barney had actually produced the
number of pistons claimed on his timesheet, asserted that
it was impossible for Barney to have produced that
number of pistons and also have so much "down time." He
therefore asserted Barney was falsifying or cheating on his
claims for "down time," at $1.50 per hour. Barney then
explained to Trost how he was able to produce so many
pistons in the time available. Superintendent Trost
testified that at this point he took paper and pencil and
figured it out mathematically, after which he concluded
that this was impossible, and that Barney had claimed to
produce more than 500 pistons than was possible. We shall
return to an analysis of this asserted computation
hereinafter.
During this conference with Barney, Trost told Barney,
according to the latter's credited testimony, that Trost had
previously told Leadman Windisch to warn Barney to cut
down on his "down time," but that Windisch had failed to
do so, and "it's too late now." Trost testified that he did
not remember this, but that he had instructed Windisch to
warn Barney. However, Trost also admitted that prior to
the date of his discharge there was no accusation that
Barney was cheating on down time.
According to the undenied and credited testimony of
Barney, Trost turned to Leadman Windisch and asked,
"What do you think? Should I go ahead and fire him?"
Windisch shrugged his shoulders. Trost proceeded to
discharge Barney.
Considerable testimony was adduced with respect to the
length of time required to complete the finishing of two
pistons on the excello machine. From this the Trial
Examiner has drawn two conclusions: one, that the
variables involved are considerable (in fact a variation of
one second per cycle can materially affect the total
production for the day) and secondly, that Superintendent
Trost could not determine with the certainty he expressed
that Barney's timesheet was inaccurate.
Superintendent Trost first testified that the average time
for loading the excello machine is 7-9 seconds. He later
asserted that studies had shown that the average man
could do the loading operation in 7-8 seconds. He also
testified that the fastest man he presently has can do it
about 5-6 seconds. Trost admits that Barney asserted that
he could load in a shorter time, but no attempt was made
to time him. Indeed, in his testimony, Trost asserts that he
rejected Barney's claim to speed in the operation on the
ground that "nobody time him" at these speeds.
It was also testified by Superintendent Trost that the
cycle of the machine after loading is 20-22 seconds. At
other times, Trost set the cycle flatly at 20 seconds. It is
admitted that the machines do not maintain a 20-second
cycle and Trost stated that he did not know if the cycle
went down to 18 seconds "at that time."" Trost states that
he tested the machine that morning (two shifts after
Barney had completed his work) and found that, in
running it for just six cycles, the machine varied by 3
seconds. However, it was asserted that this variation was
from 20 to 22 seconds and did not go below 20 seconds. It
is also admitted that it is possible for the operator, at some
risk to himself, to "Jump" the cycle, and perform faster.
At the hearing, Superintendent Trost was asked to
demonstrate the computations he made at the time of the
discharge, using, as he agreed, 24 seconds for the
complete operation. When this showed that Barney could
mathematically have produced the number of pistons
which Trost said Barney claimed for a 7-1/2 hour shift,
Trost then said, for the first time and without explanation,
that the computations should be made on the basis of 6-1/2
hours (from 8 a.m. to 3 p.m.), rather than a full shift (which
was the only period mentioned on direct examination).
When the figures recomputed on the basis of 6-1/2 hours
showed that Barney could have still produced the figure
88 This would be the necessary inference even from
Superintendent Trost's rather reluctant and evasive evaluation of
Barney , as the following shows
Q [Mr. Solien] Mr Barney was one of your better
operators on the excellos, wasn't he9
A He was a fair man
Q He had one of the highest production rates on the
excellos didn't he 9
A No, he wasn't on there that long
Q How long had he been on the excellos 7
A Two to three months
Q He was one of your highest paid employees, as far as
piece work is concerned , was he not?
A. He was one of my good employees, yes sir
Q In fact, John Barney told you once he was going to quit
if you didn't put him on the day shift, didn't het
A Yes
Q And you put him on the day shift to keep him, didn't
you?
A I tried to keep everyone happy
69 William Wages , an impressive witness, shown to be
generally knowledgeable about these machines , stated that the
cycle could go to an 18-second cycle
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Trost asserts Barney claimed, Superintendent Trost
then asserted that the error was in assuming that Barney
could do a single operation in 24 seconds, which he
asserted to be impossible. The Trial Examiner has
determined, however, that taking the figure of 1413 pistons
for a 6-1/2 hour day, which Trost asserted to be the figures
on Barney's timesheet, this can be attained by an
employee performing the operation at a 25-second
average, and is almost exactly the figure at a 26-second
rate, which would be within the reach of a better than
average employee such as the testimony shows Barney to
be 70
We thus have the situation of an obviously superior
employee, not previously accused of falsification, whose
promotion was abated because of the advent of the Union,
and who was thereafter discharged for allegedly falsifying
his timesheet, under circumstances indicating that the
reason assigned is a pretext. Also, this was at a time when
Respondent contends it was strenuously trying to upgrade
its work force; nevertheless, a number of good employees
who were adherents of the Union, including Barney, were
regularly being caught in the process.
On the record as a whole it is concluded that the
termination of John Barney was part of Respondent's
campaign to weed out union adherents from its work force
and that his termination thus violated Section 8(a)(1) and
(3) of the Act
12. The termination of D. W. McMillian
McMillian, a former chief of police of Maiden, was
employed by Respondent on April 27, 1964, in the
maintenance department, under Superintendent Schmidt,
as a tow motor mechanic. It is clear that he was a good
employee, who had received commendation on his work
from Schmidt and others
During the union organizational campaign, McMillian
signed a card for the Union, attended all the union
meetings, and was instrumental in securing at least one
other union card. Superintendent Schmidt's testimony
makes it clear that he was aware that McMillian was active
in Union talk about the plant
On the morning of Friday, February 12, 1965, about
8:45, Schmidt informed McMillian that though he hated to
do so, he had to let McMillian go. Schmidt informed
McMillian that this had nothing to do with his work, but
that McMillian was being replaced by a man from the
Respondent's Grapho plant. However, Schmidt suggested
that McMillian not look for other work for a few days,
because Schmidt hoped that he would be able to call
McMillian back. Schmidt suggested that McMillian might
even be called before Monday morning, and not lose any
time from work at all. Schmidt gave McMillian the option
of clocking out then or working out the day, and McMillian
finished out the day's work
The record shows that the man who replaced McMillian,
Ewing, stayed at the Maiden plant only a very short time,
estimated from a month to 6 to 8 weeks. When Ewing left,
Schmidt gave the job to a newly hired laborer whom he
considered had mechanical ability, and whose work
Schmidt described only as "adequate." Schmidt testified
that he did not attempt to call McMillian back because he
"' All of the above assumes Trost 's figure of 1413 pistons
produced between 8 a in and 3 p in to be correct However,
Barney 's timesheet (Resp Exh 29), in fact , shows 128 pistons
before 8 a in and 1378 pistons after 8 a in , for a total of 1506 for
stated he knew that McMillian was then running a service
station for himself in Maiden, and if he called McMillian
back, Schmidt said, he would have to lay off the laborer
who had been given the tow-motor mechanic's job. It was
also stated that McMillian had never asked to return to
work, and had asked for his vacation and pension money,
which Schmidt stated indicated that McMillian considered
himself terminated.
McMillian is another among the superior employees
whom this record shows were terminated by Respondent,
without any effort to salvage their skills, during this
period. In this case, as in other instances, some of which
are discussed hereinafter, this decision was made, not on
the basis of the desire of the production supervisor
involved, but in accordance with determinations made by
higher management officials. The facts in this instance,
and in other similar cases, are convincing that these
terminations were not based on the production needs of
the plant.
On the basis of the facts of this case, and the record as a
whole, the Trial Examiner is convinced and finds that the
Respondent laid off and failed to recall D. W. McMillian
because of his activities on behalf of the Union and
thereby violated Section 8(a)(1) and (3) of the Act
13 The termination of Billy Joe Walker
Walker was first employed by Respondent in
November 1962 as a guard. He was thereafter transferred
into the maintenance department and then to the toolroom
as a tool grinder and blocksetter. Walker was employed in
this capacity for about a year and was the only employee
performing this task on the first shift at the time of his
termination. Another employee, Castleberry, who had also
been trained for this work on the job, and who had less
service than Walker, was employed in this job on another
shift.
There is some dispute with respect to Walker's
performance. Walker testified that he had been
complimented on his work by Superintendent Trost and
others, and had received no criticism of his work. He also
testified that Trost told him at the time of his termination
that Trost had tried to get Respondent to transfer Walker
back to maintenance, but Respondent had refused to do
so. This was not contradicted by Trost, who testified only
that Walker was not offered a job elsewhere.
On direct examination Superintendent Trost testified
merely that the reason for Walker's termination was that
he had been "replaced by one of our help from
[Respondent's Grapho plant]." However, on cross-
examination Trost testified that Walker was not a good
employee. In support of this he testified that he had
spoken to Walker "about" two or three times about not
following Leadman Bussick's instructions. He then
testified that he last spoke to Walker "about" 2 or 3
months before his termination, that Walker followed
instructions "for a period of time," and he never spoke to
Walker again about this. Trost also testified that he had
talked to Castleberry about not following instructions.
On redirect examination Trost elaborated, stating that
after he talked to Castleberry, he "straightened out," but
that Walker did not. The latter comparison between the
two workers was made by Trost as part of his contention
the day, as Barney testified If Barney were producing 2 pistons
every 27 seconds, on the average, he could in the time available
between 8 a in and 3 p m (6-1/2 hours less 83 minutes down time)
produce 1363 pistons, 15 less than his timesheet shows
STERLING ALUMINUM 339
that Schoemehl and he had made the decision that Walker
was to be replaced by the employee from the Grapho plant,
rather than Castleberry.
On consideration of all the evidence, the testimony of
Superintendent Trost on this issue is not credited. Trost's
original testimony was that the decision to replace Walker
and not Castleberry was made by Respondent' s "main
office," and this testimony appears to have changed only
after a suggestive question by counsel.71 It is further noted
that in all other cases in which employees were eliminated
by replacements from other plants, as shown by this
record, the employee to be replaced was selected by
Respondent's main office. Neither Schoemehl nor Bussick
testified concerning Walker's termination.
On the record as a whole, Walker's testimony as to the
circumstances of his employment and his termination is
credited.
Walker had signed a card for the Union, attended union
meetings , and had been rather active in soliciting others to
sign union cards.
Walker's termination , together with that of McMillian
discussed above, and that of Wages and McElrath, which
are considered hereinafter, form a pattern of four
employees who were selected for dismissal by the "main
office," assertedly to make a place for employees
transferred from another plant. From all of the facts in
these cases, it is obvious that every effort was made to
exclude these men from further employment, even against
the efforts of their immediate supervisors to retain them or
have them transferred to other jobs. In the cases of
Walker, Wages, and McElrath, these men were let go
while junior employees were retained. In McMillian's
case, the determination not to further employ him is shown
by Respondent's failure to even offer him his old job when
it became vacant soon after his layoff. Each of these men
were adherents of the Union, Wages and McMillian being
notably active in its behalf. Respondent's hostility to the
Union and its concern over the pendency of the Union's
attempt to organize the employees has previously been
dicussed.
For the reasons set forth and upon the record in this
matter, it is found that the Respondent terminated Walker
because of his union adherence and as a part of its effort to
defeat the Union, and thereby violated Section 8(a)(1) and
(3) of the Act.
14 The termination of William Wages
Wages was first employed by Respondent in
December 1963. He worked in the toolroom until he was
terminated on February 28, 1965. He was considered a
good employee and had received a wage increase of 30
cents an hour on January 1, 1965.72
On the date of Wages' termination, Waters, the
superintendent of the toolroom approached Wages at work
and told him that he had bad news for him, that he was
being permanently laid off. When Wages asked the reason
71 Testimony of Superintendent Trost
Q I believe you testified [Castleberry] was doing the
same work Mr Walker was 7
A That's right
Q Who made the decision to replace Walker rather than
Castleberry?
A The main office
Q The main office did 9
A Yes
for his termination, to which Waters repliedo that
Respondent was trying to cut down overhead, and
continued that, "this is not my idea. I think you are a good
worker. I have been down to the office three times to try to
keep you employed." Later in the day, Waters came to
Wages and told him, "Bill, I am glad you worked with me.
I wish you could stay, I hate to see you leave." Waters
further told Wages that he did not understand the
situation , "because he was short on help at the present
time." Waters advised Wages that if Wages required any
recommendations, he could contact Waters for them.
At the time Wages was terminated he was working with
Leadman Gillham. Wages was also training a newly
transferred employee, Corder, on the job. Corder was
retained when Wages was terminated.
The only evidence offered by Respondent as to the
reason for the termination of Wages was Schoemehl's
testimony that, "He was replaced permanently by an
import. 117.1 Wages was not offered other employment with
Respondent.
Approximately 3 weeks before the opening of the
hearing in this matter , in a conversation at a private home,
Assistant Plant Manager Donovan told Wages that
"Gillham would like to have you back." Donovan stated
that Corder was still working with Gillham, but that no one
else was. Donovan stated that these men were behind in
their work, and that this was the normal situation.
Superintendent Waters testified that he would like to
have Wages back, that Wages had been one of his good
workers. He admitted that Gillham had advised him that
he would like to have Wages back at work.
Wages was the last of the three employees, who
originally brought the Union in, to be terminated. On the
record presented he is clearly a most able employee. It is
strange that Respondent would let such an employee`go at
a time it contends it was upgrading its work force. In fact
this. and other cases involved herein, rather indicate, as
the Trial Examiner has previously noted, that the claim of
upgrading the work force has been used by Respondent in
this proceeding, where convenient, to cloak its real
reasons for termination of the employees involved.
In the present case, it is clear that Wages was needed
and wanted by his supervisors, both at the time he was
terminated and since. The reason for the termination given
to Waters by the management and conveyed to Wages
differs markedly from the reason advanced by Schoemehl
at the hearing. Schoemehl's brief testimony that Wages
was replaced is not otherwise supported by the record, and
is contrary to the evidence given by employee Corder and
Waters' statements to Wages.
In the circumstances, the Tnal Examiner has no doubt
that Wages was terminated by Respondent as part of its
campaign to eliminate union adherents from the work
force and finds that the discharge of William Wages
violated Section 8(a)(1) and (3) of the Act.
Q. Did they tell you to replace Walker rather than
Castleberry or did you make that decision yourself?
A Between the two of us we made it
Q You and who2
A Vic Schoemehl
72 As previously noted Respondent granted a general increase
of 10 cents an hour to all employees on January 1
7' In Respondent's brief it is stated that by this, Schoemehl
meant that Wages was replaced by an employee from
Respondent's Grapho plant
295-269 0-69-23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15. The termination of Herman Wayne McElrath
McElrath was employed by Respondent on May 27,
1963, in the storeroom, and continued to work there as a
receiving clerk until his termination on February 26, 1965.
At the time of his termination , McElrath was the oldest
employee in point of seniority in the storeroom at the
Malden plant. His work appears to have been satisfactory,
McElrath having received only one minor criticism in close
to 2 years of employment.
On February 26, his supervisor, Tibbles, told McElrath
that Schoemehl had instructed Tibbles to lay McElrath off
on orders from "St. Louis." When McElrath contacted
Schoemehl to ascertain the reason for his separation from
employment, Schoemehl said that he couldn't give
McElrath the reason; that he would hear from Tibbles
about this later; and that he was being let go on orders
from "St. Louis." McElrath was never told the reason for
his termination.
McElrath had signed a card for the Union and had
attended meetings of the Union in Bernie and Malden.
Schoemehl testified that Tibbles, who had been
employed by Respondent for 15 years, had been
transferred to Malden about a month prior to McElrath's
termination , and Respondent's home office had ordered
him to let McElrath go on the ground that Tibbles could do
McElrath's work. Schoemehl indicated that McElrath was
not given another job because he didn't ask for one.
The discussion of the termination of McMillian, Walker,
and Wages hereinabove is also dispositive of the merits of
the termination of McElrath. Respondent's indicated
argument that McElrath was not retained because he did
not specifically ask to be transferred to another job is not
impressive. McElrath was an employee of fairly long
service and apparently satisfactory in his work. His
interest in continued employment is shown by his
acceptance of Tibbles' invitation to talk to Schoemehl
about it, after Tibbles told him that he was being
terminated on orders from St. Louis.
McElrath might well have felt it futile to ask to be
retained when the plant manager confirmed that the
decision to dispense with him was not the manager's own,
but that of higher management, and was further reluctant
to even give McElrath the reason for the action. On the
other hand, it would be normal to expect that if
Respondent were willing to retain McElrath in another
position, Schoemehl would have advised him of this
opportunity for continued employment.
On the basis of the record in this matter , and the
reasons stated, it is found that Herman Wayne McElrath
was terminated by Respondent in violation of
Section 8(a)(1) and (3) of the Act
16. The discharge of Tommy Pearson
Tommy Pearson was first employed by Respondent in
November 1962. He was discharged on February 19, 1965.
At the time of his separation from employment, Pearson
was employed in the toolroom welding shop. He signed a
union card and attended three union meetings. Prior to his
termination he had been warned that he should call in
when he was absent from work. He was thereafter absent
from work for 3 days, on account of sickness, without
calling in. Pearson was aware that Respondent considered
3 days absence without notification to the Respondent as
grounds for discharge, and he expected to be discharged
when he returned to work on Friday morning. He had
previously made it known that he was dissatisfied with his
wage,rate and intended to quit his employment if he could
borrow money to go into business with his father. Some
question was raised on the record as to whether Pearson
quit or was discharged. It is found that he was discharged.
On the facts adduced, it is found that the allegations
that Tommy Pearson was discriminatorily discharged have
not been proved and it will be recommended that these
allegations be dismissed.
17. The discharge of Kenneth Harris
Harris was first employed by Respondent in March 1963
and was terminated February 26, 1965. Most of his
employment with Respondent was in the warehouse.
Harris asked to be transferred to "the grinders," but was
transferred to the maintenance department instead.
Thereafter, Assistant Plant Manager Donovan spoke to
Harris, advising Harris that Respondent did not have an
opening on the grinders, and asked Harris if he would go
on the A-Turn machines to see if he liked it, stating that
Respondent would move Harris to the "grinders" when
there was an opening.
Harris was employed on the A-Turn machines for about
1-1/2 weeks. The work involved was piecework and his
base rate was $1.50. Harris testified that his production
exceeded the base rate, although he had never done this
type of work before. While there, Harris was never told
what the production standards were, nor was there
complaint of his work.
On Friday, February 26, Leadman Henry Derso came to
Harris and asked him if it would be agreeable to Harris to
work overtime the following day. Harris agreed. Fifteen
minutes later, Derso came back and advised Harris that he
was discharged on instructions from "higher up." Harris
later received a termination slip which stated that Harris'
production was not up to standard.
Harris signed a union card and attended union
meetings. He apparently participated in talk about the
Union in the warehouse and was queried about his union
adherence by Doug Taylor, who, as previously noted,
made reports on these matters to Winchester.
Schoemehl testified that Harris was terminated by
orders of Donovan, who was not called to testify. When
first called by General Counsel as a hostile witness, under
Section 43(b) of the Federal Rules of Civil Procedure,
Schoemehl testified that he didn't know Harris. Later
when called by Respondent, Schoemehl testified that
Harris was terminated after a review of his production
records, for failure to meet a standard of 2,000 pieces a
day. Schoemehl stated that these records were in
existence, but they were never offered by Respondent.
Superintendent Trost, in whose department the A-Turn
operation was located, testified that he could not place
Harris.
In these circumstances, the Trial Examiner cannot
credit this asserted basis for the termination of Harris and
finds it to be a pretext. First, the sequence of the testimony
makes it clear that Schoemehl cannot have testified to
personal knowledge as to the reason for the discharge of
Harris, but must have had his memory refreshed by some
outside source not identified for the record and not subject
to cross-examination or evaluation. If this were done by
means of records, then the records were best evidence and
should have been submitted. If Donovan were the source
of Schoemehl's information, no explanation has been given
for the failure to call Donovan.
Secondly, Schoemehl testified elsewhere that the
production standards for certain other employees released
STERLING ALUMINUM
from the replacement department were based on an
earned rate of $ 1.75 an hour , not on the number of pieces,
as previously discussed , and further that Respondent did
not expect an employee to achieve production for at least 3
months. In this case Harris was terminated after 1-1/2
weeks on a strange machine, without being advised of any
standards required , and under circumstances indicating
that the termination was not requested by immediate
supervision . In fact , Derso's contemporaneous request
that Harris work overtime the next day indicates a present
need for his services at the stage of proficiency which he
had then attained . There is also indication that
Respondent was hiring new workers in the department at
the time.
On the record as a whole, the Trial Examiner is
convinced and finds that Respondent terminated Kenneth
Ray Harris as part of its campaign to eliminate adherents
of the Unicn from its employment and that the reason
advanced was clearly a pretext to shield this motive. It is
therefore found that by the termination of Kenneth Ray
Harris Respondent violated Section 8(a)(1) and (3) of the
Act.
18. The discharge of William F. Everett
Everett was first employed on April 1 , 1963. Until early
1965 he was employed in the maintenance department
under Superintendent Schmidt . Certain alleged
delinquencies of Everett and Battles , while they were
,working together in that department have heretofore been
alluded to. Everett testified that finally , when he was
unable to get along with Schmidt further, he asked
Schoemehl for a transfer . He was then transferred into the
replacement department under Leadman Randolph and
Superintendent Trost.
A few days before Everett was discharged , according to
his own testimony , he and two other employees ran a
considerable amount of scrap pistons . The three of them
were written up and warned about this . Thereafter , within
2 days of his discharge, probably the day before , Everett
ran 300 pistons that had to be scrapped . On this last
occasion , it appears that the set -up man set the gauge on
Everett 's machine incorrectly . Everett admits , however,
that it was his duty to check the setting before beginning
work , and he failed to catch the error at the time because
of a similarity of numbers . Everett did catch the error after
running 300 pistons, and called the attention of the set-up
man and Leadman Randolph to what he had done.
At the beginning of the shift , apparently the next day,
Randolph took Everett to Trost , who said that he would
have to let Everett go. Everett told Trost that he didn't
want any letter saying he was fired in a few days, and
asked Trost for a slip showing his status then. Trost gave
Everett a sl_p stating that he had been fired for running
scrap.
Everett was quite active in behalf of the Union. He not
only signed a card for the Union , secured cards from
others, and attended the regular union meetings, but held
a number of meetings in behalf of the Union in his own
home.
Respondent presented no evidence , on Respondent's
side of the case, as to the discharge of Everett . However,
Schoemehl , when called as a witness for the General
Counsel, testified that Everett had been discharged "for
improper work, excessive scrapping."
There is no question in this case but that Everett was
guilty of the fault with which he was charged by
Respondent . Nor does there seem to be any question that
341
this was a serious matter concerning which he had just
previously been warned . General Counsel points out that
the error was discovered by Everett himself, and that the
set-up man was equally guilty. However, it is not the
province of the Trial Examiner to say that the Respondent
should have given Everett another chance . The only issue
upon which I can pass is whether the General Counsel had
proved by a preponderance of the evidence that
Respondent 's asserted reason for discharging Everett was
a pretext to mask a discriminatory motive. I find that the
General Counsel has not done so. It appears that this
allegation should have been dismissed upon Respondent's
motion at the close of the General Counsel' s case, and it is
recommended that it be dismissed
19. The termination of William Buchanan
Buchanan was first employed by Respondent in
February 1964, apparently as a molder in the foundry. In
May, Buchanan suffered a heart attack and was out of
work until August 1964. He was advised by his doctor that
the work he was doing might jeopardize his health and that
he should request a transfer from the foundry. Buchanan
asked Assistant Plant Manager Donovan for a transfer,
and was told by Donovan that he would look into this, that
in the meantime Buchanan should hold on as long as he
could.
Buchanan signed a union card at John Battles' trailer on
the day of his return to work. He was also queried about
the Union by Howard Hart as previously noted.
Buchanan worked for a short time , became sick again,
and was absent about a week. He went to see
Respondent 's doctor at the clinic, and was shortly
thereafter transferred from the foundry to cutting scrap,
which Buchanan described as a job he could do. However,
not quite 2 months later , he was transferred back to
molding. He was thereafter absent 4 days in January, and
on February 22, 23, 24, 25, and 26, 1965. He was
apparently in the hospital during this last period. Also
during this period he was again told by his doctor that he
would jeopardize his health to continue at the work he was
doing. It was stipulated that Buchanan 's last day at work
was March 3, 1965. Buchanan called in and reported sick
on March 4. When he returned to the plant the following
day, he was informed that he had been "laid off."
Buchanan was not given any reason for this action by
Respondent . However, some months before he had been
advised by Schoemehl that his excessive absences were
jeopardizing his job. This was probably about the time, in
October, that Buchanan was previously terminated,
apparently for absenteeism , and was reinstated by
Schoemehl when it was discovered that there was a
mistake in the records. Buchanan admitted that the work
was too hard for him and it was for this reason he could not
work steadily.
Respondent offered no evidence as to its reason for
terminating Buchanan . In its brief Respondent states,
"Mr. Buchanan was discharged because of his failure to
comply with the Company rule that employees must call in
if off more than three days." In support of this assertion,
Respondent notes that Buchanan was told by the
unemployment compensation office that Respondent
claimed that Buchanan was terminated for not calling in.
It is also argued that Buchanan 's last day of work was
February 20 and that there is evidence that he did not call
in after the first day of his illness in February.
This argument , however, is deficient on a number of
grounds. From the record , the Trial Examiner is satisfied
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Buchanan was in the hospital in February and
Respondent knew this. Moreover, he was not terminated
for his absence, but came back to work on March 3. It is
also clear that he called in sick on March 4. Therefore, the
facts do not admit of a finding that Buchanan was
discharged for failing to call in for 3 days, even if full
probative value be given to the hearsay evidence of what
Respondent is stated to have told the unemployment
compensation office.
The proper resolution of this matter is far from clear.
The termination of Buchanan occurred at a time when the
Union's objections to the election were under active
consideration before the Board'74 the possibility of a new
election was much in Respondent's mind, as shown by
Schoemehl's conversation with Teddy H. Butler during
January, and other employees were being terminated
because of their adherence to the Union as found herein.
However, the Trial Examiner is not here persuaded by
the mere coincidence in time , nor by the failure of
Respondent to present any affirmative evidence through
its own witnesses as to the reason for the termination of
Buchanan, that this termination was discriminatory. The
evidence shows that Buchanan had previously been
warned that excessive absenteeism would cost him his job,
and his attendance at work thereafter was such as to
establish him as an undependable employee. Buchanan
admitted that the work in the foundry was too hard on him,
and, it is clear that he could not do this work without
frequent and extended absence.75 On Buchanan's own
testimony Respondent would have reasonable cause to
terminate him, and upon reconsideration of the matter, the
Trial Examiner concludes that Respondent's motion to
dismiss at the end of the General Counsel's case should
have been granted as to Buchanan. It is recommended
that the allegations of the complaint as to William
Buchanan be dismissed.
20. The discharge of Joseph Perkins
Perkins was first employed on April 7, 1964. During his
tenure with Respondent, Perkins was employed in the
sunstrand (A-Turn) department. The last 14 months of his
employment were on the 11 to 7 shift. Perkins was
primarily on piecework production. His testimony is
undisputed that during a very considerable portion of his
time he was assigned to a machine on which it was very
difficult to make production, and that he was told by
Leadman Schwent that the latter would recommend that
he be paid excess of the minimum $1.50 when he worked
on that machine. Perkins testified that on other machines
he "usually averaged over the $1.50 per week on a weekly
average." Perkins also testified that there was
considerable difficulty on his shift with the machines
generally and there were not always pistons for the men to
work on.
On the date of his termination , March 22, 1965, Perkins
testified that he was told by Leadman Schwent that he
"hated to tell him this, but that he had been fired for low
production." Perkins states that he replied that he was not
14 The Board 's Order directing a hearing on these objections is
dated January 28, 1964
75 Respondent 's transfer of Buchanan back into the foundry
where he would be under additional stress is suspicious , but this
point was not litigated . It is noted that he apparently was not
absent from work , so far as the record shows , when employed out
of the foundry
really surprised. Perkins had previously signed a card for
the Union and had attended union meetings.
Superintendent Trost's testimony at first was that he did
not remember Perkins. However, after his recollection
was refreshed, he testified that Perkins was discharged for
low production.
Respondent offered no records of Perkins' production.
General Counsel requested the production of such
records. At the time, it was stated that they were no longer
available. General Counsel rested his case without further
demand for these records or seeking a subpena for them.
Cf. N.L.R.B. v. International Union of Operating
Engineers, Local 12, supra. However, based on Perkins'
own testimony,_ there can be little doubt that the records
would show minimal production figures. Perkins'
testimony indicates that for substantial parts of his work
he was earning less than the $1.50 minimum on
production He further expressed his lack of surprise at
being terminated.
Under the circumstances, and after thorough
consideration of the evidence, the Trial Examiner
concludes that this allegation of the complaint should have
been dismissed at the conclusion of General Counsel's
case upon Respondent's motion, for failure of General
Counsel to prove a violation by a preponderance of the
evidence and it is so found. It is recommended that the
allegations of the complaint with respect to Joseph Perkins
be dismissed.
IV. CONCLUSIONS CONCERNING THE OBJECTIONS TO
ELECTION
As previously noted, issues concerning the validity of
the election conducted by agents of the Board on
September 21, 1964, were litigated in this proceeding, and
are before the Trial Examiner for decision. There can be
no question that the activities of the Respondent,
occurring between the date of the filing of the petition in
Case 14-RC-4904 (July 27, 1964) and the date of the
election, which have heretofore been found to be unfair
labor practices, made a free and fair choice by the
employees in the election impossible, and it is so found.76
It is therefore recommended that the election be set aside
and declared invalid. It is not recommended that a new
election be conducted, on the basis of the remedy
hereinafter recommended.
V. MAJORITY STATUS OF THE UNION
The General Counsel alleges that on or about August 23,
1964, a majority of the Malden employees of Respondent
in an appropriate unit selected the Union as their
representative for the purposes of collective bargaining.
This is denied by Respondent. However, it is not disputed
that August 23, 1964, is an appropriate date for the
determination of this issue.
The parties further agreed, and it is found that an
appropriate unit for these purposes is the following:
All production and maintenance employees, including
76 Among the Union's objections was included a claim that the
activities of certain persons in the community ( not regular
employees of Respondent) improperly affected the results of the
election Without admitting that these activities occurred or
affected the election improperly, the Respondent urges that these
activities were counterbalanced by activities of other members of
the community in the Union's behalf The Trial Examiner finds it
unnecessary to pass on this issue
STERLING ALUMINUM
plant clerical employees , at Respondent ' s Malden,
Missouri , plant , excluding office clerical employees,
professional employees , guards, and supervisors as
defined in the Act.
The eligibility list of employees in the above described
unit employed as of the week ending August 23, 1964,
which was used in the election , shows a total of 255 names,
including the 23 persons previously found to be ineligible
supervisors . See page 309 , supra. It was stipulated
that five additional employees should be added to that list.
The General Counsel also contends that the name of
William O. Ryan should be added to the list . The evidence
shows that Ryan was on temporary layoff on August 23,
and was recalled to work on or about September 1, 1964,
and worked one day. Inasmuch as Ryan had a reasonable
expectancy of employment as of the eligibility date, he
should be added to the eligibility list. See N.L.R.B. v. Jesse
Jones Sausage Co., 309 F.2d 664 (C.A. 4).
Also to be added to the eligibility list are the 11
employees previously found to have been discriminatorily
terminated prior to August 23, 1964. Thus adjusted, the
total number of eligible employees as of August 23, was
249. The majority of valid employee designations of the
Union required to support the General Counsel's
allegation is 125.
The General Counsel submitted in evidence cards
executed by 153 employees included in the eligibility
group discussed above, in the following form:
AUTHORIZATION FOR REPRESENTATION
International Molders and Allied Workers Union
-A F L - C 1 0
I hereby authorize the INTERNATIONAL MOLDERS and ALLIED
WORKERS UNION. A F L ---C I 0 to represent me and, in my
behalf , to negotiate all agreements or contracts in regard to wages,
hours and working conditions
Signature
i
It-s
Date
6( ^/ C[.SCU L-Q
Address -4t4 L bf=_A- f 3tCuy State
Employed by Li'.. c _41v",. r
Job held Shift " Phone
^Ftl-.S i,
The Trial Examiner has excluded the card of Bennie
Mason, which was admittedly executed after August 23. In
its brief, Respondent refers generally, also, to alleged
"serious questions concerning the validity of the
purported date of execution of some of these cards." In the
absence of any specific reference to the cards in question,
the Trial Examiner has carefully reviewed all of the cards
which do not bear an NLRB time-stamp, and is satisfied
that the cards in question were signed prior to the
eligibility date. Some comment should be made with
respect to three of these cards.
Larry McCarley's card is undated. He signed this card 2
or 3 days after returning to work from the layoff of July 10.
McCarley testified that he returned to work 5 weeks
thereafter. Since his name was included on the original
eligibility list, it is concluded that he returned before
August 23, and that the card was signed in the workweek
preceding that date.
rr Attached hereto as Appendix A is a list of the cards which
Respondent contends are invalid Listed on Appendix B are the
remaining 83 cards signed before August 23, not specifically
343
Joseph Deal's card is dated August 17, 1964. When Deal
gave this card to employee Barney, he asked Barney to
hold it for him. Barney testified that after 3 or 4 days he
turned this card in, Deal having told him to do so. Deal
testified that he did not tell Barney to turn the card in, but
he was fully aware that Barney had done so. Deal did not
indicate that he made any protest of this action or that he
requested that his card be returned. On the basis of the
record, it is found that Deal assented to his card being
turned in.
Clifford Hunt's card is undated. He testified only that he
signed this card a month before the election, but was
clearly unsure of the date of the election. However, the
record shows that Hunt's card was secured by Union
Representative Bonifer. The evidence which shows that
Bonifer did not secure any cards on August 23, or after the
meeting in St. Louis, on August 25, makes it barely
possible that Bonifer might have secured this card on
August 24. However, the Trial Examiner feels that the
preponderant probability is that the card was signed prior
to that date.
The Respondent' s main attack on the alleged majority
status of the Union is its contention that 70 of the cards
signed by employees may not be counted as designations
of the Union as bargaining representative, because the
card signers "testified they were told the cards were to be
used to get an election." It is further suggested that
because of a union handbill, discussed hereinafter there is
an inference that other employees, whose cards were
identified by other persons, and who did not testify
themselves, were also told this. Respondent also
specifically calls attention to the cards of two employees,
Roy Kennedy and Noble Brady Causey, who, it is asserted,
actually showed hostility to the Union."
It is also asserted that the evidence proffered in
support of the majority status of the Union is affected by
the fact that the Union never asserted such a status nor
requested the employer to bargain prior to the election; by
the fact that a number of employees were told that their
cards would be kept confidential; and by the fact that the
Union lost the election.
It is, moreover, contended that all of the evidence on
this issue is tainted, because of an alleged attempt to
"influence the testimony of witnesses" in regard to the
cards. Respondent's reference relates to situations arising
from the testimony of Ronnie Dale Henderson and Buford
Schrader. This testimony has been carefully scrutinized,
but it is considered unnecessary to repeat it at length
herein. In respect to Ronnie Dale Henderson, it is found
that, on the basis of all the relevant testimony, and
particularly the confused and contradictory nature of
Henderson's testimony, there is no convincing proof that
an attempt was made to influence his testimony. I believe
that he did hear the words "representation," or "union
representation" spoken in the hall before he came into the
hearing to testify, and he attempted to adopt that
phraseology as his own in describing what he was told
about the cards he signed, at one point in his testimony; in
doing so, he found it to be too much of a tongue twister to
handle. This fact has been given weight in reviewing his
testimony. However, Henderson's testimony bearing on
what he was told as to the purpose of the card he signed,
given in his own words, other than his malapropism, was
that the card "was for a union."
contended to be invalid Spelling and form of names is that on the
eligibility list In a few cases , where clarity appears required,
additions or corrections are in parentheses
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the other instance referred to by Respondent, it
appears that witness Buford Jerry Schrader was told by
Jimmy Rose , who had testified , that Schrader would be
asked questions about his card , but no suggestions were
made as to how he should testify. The Trial Examiner has
carefully studied the testimony of all the witnesses on this
issue and had discerned no pattern or other evidence that
the testimony given was improperly influenced. To the
contrary , it was my impression at the time that the
witnesses were testifying on this issue without any
advance preparation as to the point , even by counsel,
which I would not consider improper . This was confirmed
in reading the record.
On its main point, Respondent argues, in effect , that if
an employee is given to understand , in any manner, that
the card he is requested to sign is to be used in obtaining
an NLRB election on the issue of representation by a
union , that card may not be considered as an expression of
the employee 's intent to designate the union as his
bargaining representative . This is clearly not the state of
the law , as the Trial Examiner understands it.
The issue is one of fact : the determination of the
purpose of the employee in his objective act of signing a
card bearing certain writing . This must be determined on
the basis of the record as a whole, as in the case of any
other factual issue. In determining this issue , the language
of the card signed, particularly if unambiguous , as is the
stated by the Court in Jas. H. Matthews & Co. v.
N.L.R.B., 354 F.2d 432, 438 (C.A. 8), "(t)he very act of
signing an authorization card by an employee, absent real
proof of fraud or deceit , calls for a finding that the
employee knew what he was doing."
Of course , effective proof of coercion or duress in
securing authorization cards , which is not claimed here,
will also serve to invalidate the use of such evidence. In
short, an employee 's assent to representation by means of
an authorization card, as by secret ballot vote, may be
invalidated only where it can be "convincingly shown"
that such assent was not freely given. See Happach v.
N.L.R.B., 353 F.2d 629 , 631 (C.A. 7); N L.R.B. v.
C. J. Glasgow Co., 356 F.2d 476 (C.A. 7).
It has been established in both Board and Court
decisions since at least 1945 , that statements that there
would be an election , made while soliciting authorization
cards , do not invalidate the cards for the purpose of
designating a representative . The Nubone Company, Inc.,
62 NLRB 322, enfd. per curtain, 155 F. 2d 523 (C.A. 3).
Indeed , it is clear that even though the employee solicited
was told that the card was only for an election, the card is
not necessarily invalidated as proof of representation,
where the operative facts do not present "real proof of
fraud or deceit ." Thus , the Court, in Jas. H. Matthews &
Co., supra , held that employee Cook's card was not
invalidated because the fellow employee who solicited his
signature told him the card was "to get the union in for a
vote only," since there was no showing that the solicitor
had any authority to bind the union involved there , and the
card was unambiguous on its face.
The Board's decisions in Englewood Lumber, 130 NLRB
394, and Trend Mills, Inc., 154 NLRB 143, cited by
Respondent, are not to the contrary. In those decisions,
the Board found, on the record as a whole (excluding the
employee's unexpressed thoughts or afterthoughts as to
his reasons for signing such cards), that the employees
involved would not have signed cards to obtain union
representation, and therefore the cards could not be
validly counted for that purpose. See also N.L.R.B. v.
Cumberland Shoe Corp., 351 F.2d 917, 920 (C.A. 6),
construing Englewood to this effect.
It is also noted that N.L.R.B. v. Koehler, 328 F.2d 770
(C.A. 7), which cited Englewood, and upon which
Respondent relies here, has been construed in later
decisions of the same Court as holding that, in order to
invalidate otherwise proper designations of a union, it
must be "convincingly shown" that the cards were signed
because of misrepresentations as to their purpose. See
Happach v. N.L.R B., supra; N L.R B. v. C. J. Glasgow
Co., supra. See also, N.L.R.B. v. Gotham Shoe Mfg. Co.,
359 F.2d 684, (C.A. 2).
Indeed, since proper authorization cards may be equally
valid as designations of the labor organization named and
for the purpose of supporting a petition for an election, it
has been frequently held that such cards may be counted
as designations of the union for bargaining, even though
the cards state on their face that they may be used to
secure an election. IUE v. N.L.R.B. (S.N.C. Corp.), 352
F.2d 361 (C.A.D.C.); N.L.R.B. v. Winn-Dixie Stores, Inc.,
341 F.2d 750 (C.A. 6): N.L.R.B. V. C. J. Glasgow Co.,
supra .711
The Trial Examiner has carefully considered all of the
evidence adduced on the issue of the validity of the cards
signed by the employees in this matter and finds that there
is no real proof that these cards were obtained by fraud or
deceit, nor is there any convincing evidence that the
employees' assent to the cards designating the Union as
their bargaining representative was not freely given .79
Most of the cards involved were solicited by fellow
employees of the card signers, and it is upon their
conversations at the time the cards were signed that the
Respondent mainly relies. However, the record shows that
the Union and its advantages and demerits were being
generally discussed around the plant. The testimony of a
number of witnesses shows that the argument was being
employed that the execution of these cards would
constitute a step which would make possible increased job
security and improved working conditions. In these
circumstances, it is manifestly impossible to hold that an
employee was materially misled in signing a card on the
basis of one or more conversations with fellow employees
or a union representative, in which, on occasion, it was
stated that an election would follow upon the execution of
a card, without more being shown.
In this connection the Trial Examiner has kept in mind
the fact that some of the witnesses testified that they had
conversations about the cards with only the person
soliciting their signature. However, the evidence in the
" N L R B v Peterson Brothers, Inc , 342 F 2d 221 (C A 5),
relied on by the Respondent is to the contrary However, insofar
as applicable to this case, in which the cards are unambiguous,
the rationale in Peterson, would be in clear conflict with the
holding in Jas H Matthews, supra It is also noted that the Court
in C J Glasgow Co , supra, indicated disapproval of the rationale
of the Peterson decision The Trial Examiner has noted that the
Court in Bauer Welding and Metal Fabricators, Inc v N L R B ,
358 F 2d 766, (C A 8), cited and relied upon the Peterson decision
In Bauer , however, the Court found that the cards involved were
invalidated because of calculated misrepresentation issued in
written form to all the employees by an official of the labor union
there involved, which factually distinguishes that case from the
present situation
r" Respondent particularly asserts that the cards signed by
employees Kennedy and Causey may not be counted as
designations in favor of the Union, since both, it is stated, were
induced to sign cards in spite of expressions of hostility to the
Union Since it appears clearly unnecessary to do so, the Trial
Examiner has not resolved these issues
STERLING ALUMINUM 345
record indicates that these employees were also exposed
to other arguments for signing these cards , including
advantages which might be received from unionization.
Thus, employee Martin, who was called as a witness for
the Respondent, testified that when employee Wages
solicited his signature, Wages "just told me if they got a
majority to sign the cards we would have an election to see
whether we wanted a union to represent us," and could
recall nothing else said in that conversation as to the
purpose of the cards. He thereafter agreed, however, that
he had heard Wages tell a group of other employees,
before he signed his own card, that the purpose of the card
was to secure higher pay and better working conditions.
From the record as a whole, it is further found that the
representatives of the Union explained to some employees,
and during at least one meeting that there were several
ways by which the Union could become the representative
of the employees , among them , the process of an election
conducted by the Board. This latter procedure was clearly
the procedure which was most emphasized. The credited
testimony of employees James E. Cook establishes that at
the first meeting held by the Union at Bernie , Missouri, the
employees were told by a union representative that
authorization cards from 30 percent of the employees
were needed before the Union could petition for an
election . It was apparently also at this meeting, according
to Cook's testimony, which is credited on the point, that
the union representative told the employees that "by
signing a card you show that you want a union in Sterling,"
but that the card did not constitute a binding obligation to
vote for the Union . However, it is not found that the union
representatives thereafter discussed at the union meetings
a need to obtain cards for the purpose of securing an
election, except possibly on July 26, since every other
official meeting held by the Union for the employees
occurred after the filing of the petition in
Case 14-RC-4904. It is more likely that the employees
were told, as the testimony of other employees indicate,
that although the Union had secured sufficient cards for an
election, additional cards were sought to increase
assurance of a favorable vote in the election.
As noted above, Respondent also relies on a handbill
distributed by the Union in support of its position that the
employees were misled into signing authorization cards.
The full text of this handbill under a cartoon heading
labeled, "The Old Stall," is as follows:
COMPANY DELAYS ELECTION
WHO PROFITS BY DELAY !
Whenever workers start to organize themselves
into a union there is one thing they nearly always
experience-DELAY !
It doesn't take much hard thought to come up with
the answers to the question of "why" and "who." To
start with , everyone knows that government
procedures have lots of "red tape." You don't have to
use the red tape but it's there if you want it.
Now, let's see who wants it-and why. Certainly it
isn't your union . You have already signed cards and
showed the government that you want the election
and you want it now !
The boss doesn't feel that way. Let' s say that when
your union is voted in you negotiate wages and other
benefits that amount to a lot of money. Multiply that
by the number of workers and you can see how much
the company saves each week it delays the election.
And there' s another reason. Companies figured
that delay helps to discourage you. It gives them time
to whittle away at you and maybe change a few votes
so as to lessen your union 's chances in the election
Just remember these facts if the time seems to drag
on. The company is trying to protect its pocketbook
and weaken you Your best defense is to dig in more
determined than ever to win-and take a few extra
nickels come contract time to make up for the delay.
UNION MEETING
SUNDAY 2:00 P.M. AUG. 9TH
ST ANN RECREATION HALL
BE SURE AND ATTEND
Although no date is shown for this document , it clearly
appeared after the filing of the petition for the election,
and probably was issued within a few days prior to
August 9, after, the great majority of the authorization
cards had been signed. The leaflet, in fact, does not make
any appeal for additional cards.
Respondent asserts , in effect , that the statement in the
third paragraph, that the employees had already signed
cards and given proof to the government that they wanted
an election, is further proof that the employees signed the
cards only for an election.
The document as a whole, however, shows that the
Union was seeking an election as a means of
demonstrating that the employees desired the Union to
represent them, and emphasizes economic benefits
involved in the election. Since this is obviously not
inconsistent with the language appearing on the cards
signed by the employees , it cannot be said that by the
issuance of this handbill, the Union engaged in fraud or
deceit for the purpose of obtaining authorization cards, or
that the leaflet was proof of fraud or deceit on the Union's
part.
Respondent ' s contention that the cards should not be
counted because the employees were promised that they
would be kept secret does not attack the validity of the
cards, themselves . In fact , the desire of the employees to
keep secret from their employer the fact that they had
signed such cards is a significant indication that they
considered this act on their part as favoring the Union, an
action which they feared their employer would disapprove.
The Respondent has cited no authority for its contention
that the authorization cards signed by a number of
employees should not be considered valid because of the
promise to keep the cards a secret. However, the Board in
its decision in General Steel Products, Inc., et al., 157
NLRB 636, recently approved a Trial Examiner 's finding
that authorization cards similar to those involved here
need not be rejected because the employees had been told
they would be kept secret. Indeed, it would be difficult to
justify the rejection of otherwise probative evidence
offered in a Federal regulatory proceeding on the ground
that the interested private parties had agreed among
themselves that the evidence should be withheld from the
Government . In N.L.R . B. v. New Era Die Co., 118 F.2d 500
(C.A. 3), the Court, while approving the union 's refusal to
show authorization cards to the employer there involved,
because this would have "deprive[d ] the employees of
their secrecy of choice which the Act is designed to
secure," nevertheless expressed no concern that those
cards had been exposed in evidence in establishing the
union's majority status in that case.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, finally, argues that the unreliable nature of
authorization cards as proof of majority status, as well as
the results of the election should preclude any finding that
the Union is the designated bargaining representative of
the employees The Trial Examiner is in complete and
emphatic agreement that the results of a free and fair
secret ballot election is much to be preferred over any
other type of evidence in determining whether employees
wish to be represented by a labor organization. However
that does not mean that authorization cards are not
probative evidence in these cases, as many decisions of
the Courts and the Board teach us.
It is also a familiar rule of law that when the party
calling for the best evidence of a fact, has itself made the
production of such evidence impossible, it cannot
complain of the proof of that fact by secondary
evidence Similarly, where the employer, as here, has
prevented the ascertainment of the employees' desires as
to representation through a free and fair election, he may
not be heard to complain if that fact is ascertained through
other probative evidence. See N.L.R B. v. Gotham Shoe
Mfg. Co., Inc., supra, 61 LRRM 2179; IrvingAir Chute Co.,
Inc. v. N.L.R.B., 350 F.2d 176, 182 (C.A. 2); see also,
Happach v N L.R.B., supra; The Colson Corp. v. N.L.R.B.,
347 F.2d 128 (C.A. 8).80
It is clear that the Union was, on August 23, 1964, and at
all times material to this proceeding, the designated and
selected representative of a majority of Respondent's
employees in the appropriate unit hereinabove found for
the purpose of collective bargaining, and therefore was
and continues to be the exclusive representative of the
employees in the appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act and it is so found.
VI 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
Respondent as 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 of commerce.
VII. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
The General Counsel requests that, in order to
effectively remedy the violations of the Act heretofore
found, the Trial Examiner , inter alga , order the
Respondent to bargain with the Union upon request. The
Respondent opposes this request, contending , in effect,
that such a remedy is not proper since the Union never
made a request of Respondent to bargain, and thus
Respondent has never refused to bargain with the Union.
"' The Trial Examiner has also considered the Respondent's
argument that , since the Union received fewer votes at the
election than the number of cards obtained from employees, this
constitutes proof that the cards were not freely given as
designations of the Union for the purpose of representation
However, since the results of the election were not a free
This contention was specifically considered and
rejected in N.L.R.B. v. Caldarera, 209 F.2d 265 (C.A. 8), a
case in which the Court held that there had been no
previous request to bargain, but nevertheless enforced the
order of the Board that the respondents in that case
bargain with the union there involved, upon request. The
Court there said that (209 F.2d 268), "This provision of the
order does not depend upon a previous demand by the
union or a refusal by respondents "
To the same effect, see Local 152, I.B.T.C.W. and H. of
A. v. N.L.R.B., 343 F.2d 307, 309 (C.A.D C ); Piasecki
Aircraft Corp. v. N.L.R.B., 280 F.2d 575, 591-592. See also,
N.L.R.B v. Delight Bakery, 353 F.2d 344, 347 (C.A. 6).
Upon the principles therein expressed, and in the
circumstances of this case, it is found that, in order to
effectuate the policies of the Act, the Respondent should
be ordered to bargain with the Union upon request, and it
is so recommended.
It is further recommended that Respondent offer those
employees whose names appear in the notice marked
"Appendix C" [omitted from publication], immediate and
full reinstatement to their former or substantially
equivalent positions, without prejudice to seniority and
other rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them, by payment to them of a sum
of money equal to that which they would have earned as
wages from the date of the discrimination against them to
the date of offer of reinstatement, less interim earnings,
and in a manner consistent with Board policy set out in
F. W Woolworth Company, 90 NLRB 289, and Crossett
Lumber Company, 8 NLRB 440, to which shall be added
interest at the rate of 6 percent per annum as prescribed
by the Board in Isis Plumbing and Heating Co., 138 NLRB
716.
It will also be recommended that Respondent preserve
and, upon request , make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records and reports
necessary to analyze the amount of backpay due and the
right to reinstatement under terms of this Recommended
Order.
In order to make effective for the employees of the
Respondent the guarantee of rights contained in Section 7
of the Act, it will be recommended that the Respondent
cease and desist from, in any manner, infringing upon the
rights guaranteed in that section
Upon the basis of the above findings of fact and upon the
entire record in the case, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The unit set forth in section IV, above, is an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
expression of the employees' choice, obviously those results are
not entitled to any weight Indeed, it is noted that, under
Respondent's arguments with respect to the validity of the
authorization cards, the Union would be credited with receiving
more votes at the election favoring representation than it received
cards for that purpose prior to the election
STERLING ALUMINUM 347
4. On August 23, 1964, and at all times thereafter, the Terry Lee Forbies (Forbuss) GC-157
Union was, and continues to be the exclusive Nobel Causey GC-168
representative of the employees in the appropriate unit Larry Everett GC-169
found above for the purposes of collective bargaining Terry Allen GC-170
within the meaning of Section 9(a) of the Act. Jimmy Corn GC-171
5. Respondent has engaged in and is engaging in unfair Billy Fry GC-172
labor practices within the meaning of Section 8(a)(1) and James Barnes GC-173
(3) of the Act, which unfair labor practices affect Dannie Lee GC-180
commerce within the meaning of Section 2(6) and (7) of the Larry Barnes GC-181
Act. Billie Joe Mekan GC-182
6. Respondent did not violate the Act by terminating Edward Stenger GC-183
the employment of Richard A. ' Pearson, Darrell Hyde, Earl Junior Thurston GC-114
Tommy Pearson, William F. Everett, William Buchanan, David Midkiff GC-115
and Joseph Perkins. Kenneth Harris GC-116
[Recommended Order omitted from publication.] Joseph Perkins GC-120
David Davis GC-193
APPENDIX A Clifford Hunt GC-194
Calvin Allen GC-195
Auth. card Herbert Rackley GC-196
Name Exh. No. Earl Dodd GC-184
Alvin Albright GC-185
Glen Parker GC-2 Larry V. Campbell GC-187
Donald Lipsey
Jerry Sandusky
Ronnie Crawford
GC-3
GC-4
GC-5
Larry McCarley
APPENDIX B
GC-191
(Benton ) Keith Bowman GC-26
David Noe GC-27 Auth. card
Bobby Joe Grimes GC-29 Name Exh. No.
Jack Corder GC-37
Russell Hayden GC-42 Albright, Larry GC-40
Russell (Dale) Tanner GC-44 Anderson, Donald GC-122
Shirlie Strong GC-48 Ash, Paul GC-47
Lowell Pfeffer GC-53 Babcock, Ira GC-134
Garland Pace GC-55 Barnes, Carl GC-144
Gary Warth GC-56 Barney, John GC-64
Benton Bowman GC-57 Bates, Terry GC-31
Thomas Berry GC-60 Battles, John D. GC-34
Edward Bowman GC-70 Beacham, Lawson GC-69
Gordon Martin GC-72 Blalock, James GC-135
Donald Stone GC-73 Borah, James GC-35
Carl Wiseman GC-78 Bridges, Spencer GC-32
Homer Lee Craft GC-79 Brown, Jerry GC-71
Cecil Oliver GC-82 Buchanan, William GC-153
Homer Levart GC-84 Bullard, Clair GC-110
Thomas Hutchison GC-85 Butler, Joseph GC-95
William O'Neal Ryan, Jr. GC-86 Butler, Teddy GC-100
Teddy Terryll Guffey GC-91 Clayton, Troy GC-166
E. L. Coats GC-97 Cook, Harvey GC-130
Gary Burrow GC-111 Cooper, Jackie GC-117
Jim McMillian GC-112 Crawford, Doyle GC-192
William Thomas Osborn GC-125 Davis, Grady GC-156
Robert Lee Barnett GC-127 Eaker, Earnest GC-39
Buford Eugene Batchelor GC-128 Evans, Lloyd GC-119
Archie Batchelor GC-129 Everett, William GC-159
James Cook GC-131 Forshee, Ronald GC-186
Roy Kennedy GC-132 Fry, O. C. GC-41
Leo Kuper GC-133 Grimes, Ethridge GC-28
Joseph Deal GC-136 Gough, Harold GC-113
Ricky Bowman GC-137 Harris, Lloyd GC-50
Clyde Creg GC-138 Hatchel, Franklin GC-33
Leo Smiley GC-139 Henderson, Ronnie GC-149
Oriel Gregory GC-140 Hodges, Gaines GC-99
Jerry Miller GC-141 Hodges, Gale GC-96
Larry Golden GC-142 Hyde, Darrell GC-80
Melvin Stewart GC-143 Kent, Homer GC-163
Jerry O'Neal GC-145 Kildow, Junior GC-62
Larry Boone GC-146 Kincy, Zane GC-107
Billy Poyner GC-147 Loafman, Andrew GC-74
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ludwig, Norman GC-161
McElrath, Estel GC-165
McElrath, Heman GC-89
McMillian , Dempsey GC-121
McMunn, Larry GC-174
McMunn, Leslie GC-190
Moore, Johnny GC-164
Moore, Kenneth GC-189
Nettleton , Clarence GC-90
Pearson , Richard GC-101
Pearson, Tommy GC-103
Perkins, Harold GC-58
Powell, Earl GC-148
Rice, Frankie GC-175
Riley, Michael GC-43
Rose, George GC-65
Rose, John GC-160
Schrader , Buford GC-118
Sims, James GC-162
Smithson, Andy GC-81
Stone, Bob GC-177
Strong, Homer GC-46
Thomas, Charles (Michael) GC-178
Van Gennip , Charley T. GC-126
Vincent, Carl GC-45
Wages, William GC-68
Walker, Bill GC-152
Walker, Billy GC-88
Walker, Charles GC-151
Walker, Charley GC-150
Waynick, George GC-30
Williams, Elmer GC-179
Wood, Earl GC-158
Cowell, Jimmy GC-124
Brandt, Jimmy GC-61
DePew, Richard GC-94
Crosby, John GC-38
Battles, John P. GC-23
Batchelor, Bob GC-49
Rose, Jimmy GC-63
Walton, Larry GC-104
Green, Acy Lee GC-105
Elsworth , Glendle GC-106
Proffer, Rodney GC-123
Traveleze Trailer Company, Inc. and
International Union , United Automobile,
Aerospace & Agricultural Implement
Workers of America , UAW-AFL-CIO. Cases
31-CA-145-1, 145-2, 145-3, 145-4, 167-2,
174-2, and 174-3.
March 10, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 26, 1966, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 attached Trial Examiner's De-
cision. He further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended dis-
missal as to them. Thereafter, the General Counsel
and Charging Party filed exceptions to the Decision
and supporting briefs, and the Respondent filed a
brief.
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 this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner 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 briefs, and the entire record in
the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Traveleze Trailer
Company, Inc., Sun Valley, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon a series of
charges filed by International Union, United Automobile,
Aerospace & Agricultural Implement Workers of
America, UAW-AFL-CIO, herein called the Union,' a
complaint was issued on December 30, 1965, alleging that
Traveleze Trailer Company, Inc., herein called the
Respondent, had engaged in unfair labor nractices within
the meaning of Section 8(a)(1) and (3) of the Act (29 U.S.C.
Sec. 151, et seq.). The complaint alleged that the
Respondent discharged seven named employees on
various dates between June and August 1965, because said
employees had formed, joined, or assisted the Union and
sought to bargain collectively through representatives of
their own choosing and engaged in union or other
concerted activities for the purposes of collective
bargaining or mutual aid or protection, and that on several
dates in July and August 1965, the Respondent withdrew
desirable work tasks from, and assigned more onerous
work tasks to, its employees. The complaint also alleges
' The four charges numbered 31-CA-145-1, 2, 3, and 4, were
filed on August 13, 1965, the charge in Case 31-CA-167-2 was
filed on August 31, 1965; and the two charges numbered
31-CA-174.-2 and 174-3 were filed on September 10,1965
163 NLRB No. 43