Interstate Smelting and Refining Co.

National Labor Relations Board - Board Decisions

Aug 6, 1964

148 N.L.R.B. 219 (N.L.R.B. 1964)

INTERSTATE SMELTING AND REFINING CO. 219
press method for obtaining reproduction proofs. The record indi-
cates that this method, which enjoyed more extensive use in the past,
is less efficient and more expensive than the proof press method.
F. Conclusions as to the merits of the dispute
On the basis of the whole record, and on appraisal of the relevant
considerations, including the fact that the disputed work has been
performed by members of the IPP for the past 35 years without ob-
jection by the ITU 4 and the fact that the skills most significant in
connection with the pulling of reproduction proofs are, as the ITU
does not dispute, commonly associated with pressmen rather than
typographers, we shall determine the existing jurisdictional dispute
by deciding that the pressmen rather than the typographers are en-
titled to the work of pulling reproduction proofs by the proof press
method. The evidence on the record that some employers in the area
utilize the services of typographers to perform this work does not, in
our view, overcome the factors set forth above militating in favor of
assigning the disputed work to the pressmen. We shall, therefore,
assign the disputed work to the pressmen. Our present determina-
tion is limited to the particular controversy which gave rise to this
proceeding. In making this determination, we are assigning the dis-
puted work to pressmen employees represented by the IPP, but not
to IPP or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing and the entire record in this case,
the Board makes the following Determination of Dispute pursuant to
Section 10(k) of the Act :
Pressmen currently represented by the St. Paul Printing Pressmen
and Assistants' Union, No. 29, are entitled to perform the work of
pulling reproduction proofs by the proof press method for the Webb
Publishing Company.
& We find it difficult to accept the ITU's contention that its long period of acquiescence
in this practice is attributable to the fact that it was unaware that IPP members were
performing the work.
Interstate Smelting and Refining Co . and International Molders
and Allied Workers Union , AFL-CIO. Case No. 13-CA-5803.
August 6, 1964
DECISION AND ORDER
On April 13, 1964, Trial Examiner George L. Powell issued his De-
cision in the above-entitled proceeding, finding that the Respondent
148 NLRB No. 24.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Decision. There-
after, the Respondent filed exceptions to the Decision and a support-
ing brief, and the General Counsel filed a brief in answer to the
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications :
1. We find it unnecessary to decide whether Vice President Roths-
child's testimony as to his conversation with employee J. C. Johnson
about union authorization cards on approximately July 30, 1963, con-
tained a threat of reprisal or force or promise of benefit. As the Trial
Examiner's other findings of Section 8(a) (1) violations are in our
opinion clearly established, the additional finding to that effect, if
made, would be merely cumulative.
2. For the reasons set forth in the Trial Examiner's Decision, we
agree that a majority of Respondent's employees in an appropriate
unit had signed valid union authorization cards effectively designat-
ing the Union as their bargaining agent before Respondent received
the Union's request for recognition on July 25, 1963. However, in
computing the majority, we do not include the authorization cards of
employees Gus Smith and Martin Sanders in the Union's majority,
since we find it unnecessary to decide whether, as contended by Re-
spondent, these two cards are invalid as a result of alleged misrepre-
sentations made to induce their execution. We note that the Union
obtained cards from a total of 16 employees in the 22-man unit, and
that there is no evidence that any of them, other than Smith and
Sanders, was induced to sign the cards by the alleged misrepresenta-
tions. As 13 of the other employees had already signed cards when
the Union wrote Respondent on July 24, claiming a majority and re-
questing recognition, the Union had a clear majority on that date and
thereafter, even without the cards of Gus Smith and Martin Sanders.'
3. We adopt the Trial Examiner's findings and conclusions that
Respondent refused to recognize and bargain with the Union in vio-
lation of Section 8 (a) (5) of the Act, with the following qualification :
1Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Song, 134 NLRB 709, enfd.
308 F. 2d 687 (C.A. 9).
INTERSTATE SMELTING AND REFINING CO. 221
The Trial Examiner concluded, and we agree, that Respondent's
refusal to recognize the Union and its insistence on a Board-conducted
election were not based on a reasonable doubt either as to the Union's
majority status or the appropriateness of the proposed unit, nor moti-
vated by a bona fide desire to have the Union establish its representa-
tive status in a Board election. 'We note that Respondent told the
union officials that it did not doubt the authenticity of the authoriza-
tion cards establishing the Union's majority and never raised the
question of the Union's representative status in any manner. More-
over, the true purpose of Respondent's conduct is clearly revealed in
its unlawful course of conduct from the time it first learned the Union
was organizing its employees until its insistence on a Board election.
As set forth in the Trial Examiner's Decision, during the interim
Respondent coercively interrogated employees about their union and
organizational activity, and that of other employees, and both threat-
ened to cancel and promised to increase benefits to discourage union
activity. Respondent also discriminated against employees because
of their union activity by, inter aiia, transferring two employees to a
more onerous shift because they had led the union organizational
campaign. The foregoing conduct plainly shows a fixed intent to
avoid dealing with the Union and to undermine its representative
status, in violation of Section 8(a) (5) of the Act.' In the light of
these circumstances, we find it unnecessary to consider in this case
whether, in the absence of bad faith, an employer would have an un-
qualified right to demand an election in response to a union's bargain-
ing demand, and accordingly we do not itidopt the Trial Examiner's
statement to that effect.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, Interstate Smelting and Refining Co., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Coercively interrogating its employees concerning their union
activities, promising.them benefits to discourage their union activities,
and threatening to cancel benefits to discourage their union activities.
(b) Transferring employees from one shift to another for the pur-
pose of discouraging union membership or activities.
2Joy Silk Mills , Inc, 85 NLRB 1263 , enfd. 185 F . 2d 732 (C.A.D.C.), cert. denied 341
U.S. 914; Mitchell Concrete Products Co., Inc ., 137 NLRB 504 , 505-506; Tinley Park
Dairy Co, d/b/a Country Lane Food Store, 142 NLRB 683, 686-687; Bernet Foam Prod-
ucts Co , Inc, 146 NLRB 1277. . ( Member Leedom dissenting on other grounds.)
2Cf. Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, supra; Bernet Foam
Products Co., Inc., supra ; N.L.R.B. v. George Groh & Sons , 329 F. 2d 265 (C.A. 10).
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Refusing to bargain collectively with respect to rates of pay,
wages, hours, and other terms and conditions of employment with
International Molders and Allied Workers Union, AFL-CIO, as the
exclusive representative of its employees in the following unit:
All production and maintenance employees at the Respondent's
Chicago, Illinois, plant, exclusive of all office clerical and plant
clerical employees, guards, professional and technical employees,
and all supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above-named Union, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from engaging in such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as authorized in Section 8(a) (3)
of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to transfer immediately employees George Chandler and
John Spraggins, Jr., from the night shift to the day shift and the
second shift, respectively, and offer to transfer immediately employees
Foree Amos and Albert Humphreys from the second shift and the
day shift, respectively, to the night shift, if any of the four have not
already been so transferred or offered such a transfer.
(b) Make whole employees Foree Amos and Albert Humphreys for
any loss of earnings suffered by reason of the discrimination against
them, by payment to each of a sum of money equal to the difference
between the amount which each would normally have earned as wages
if employed on the night shift during the period from about July 26,
1963, to the date of retransfer or the offer of retransfer, and the
amount of their actual net earnings during such period, with backpay
and interest thereon computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
(c) Upon request, bargain collectively with International Molders
and Allied Workers Union, AFL-CIO, as the exclusive representative
of the employees in the aforesaid appropriate unit, with respect to
rates of pay, wages, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
INTERSTATE SMELTING AND REFINING CO. 223
(d) Preserve and, upon request, make available to the Board or
its agents, for examination or copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay
due tinder the terms of this Order.
(e) Post at its plant in Chicago, Illinois, copies of the attached
notice marked "Appendix.'" Copies of said notice, to be furnished
by the Regional Director for Region 13, shall, after being duly signed
by the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive
.days thereafter, in conspicuous places, including all places where
notice to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 13, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
4In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain, upon request, With International Molders
and Allied Workers Union, AFL-CIO, as the exclusive repre-
sentative of all our employees in the appropriate unit with re-
spect to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement. The
appropriate unit is :
All production and maintenance employees in our Chicago,
Illinois, plant, exclusive of all office clerical and plant cleri-
cal employees, guards, professional and technical employees,
and all supervisors as defined in the Act.
'VVE WILL offer to reinstate employees George Chandler and
John Spraggins, Jr., to their jobs on the day shifts and Foree
Amos and Albert Humphreys to their jobs on the night shift
where they were prior to on or about July 26, 1963, if we have
not already so reinstated or offered to, reinstate such employees.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole employees Foree Amos and Albert
Humphreys for any loss of earnings they may have suffered by
reason of their transfer to the day shift on or about July 26,
1963, until retransferred to the night shift or offered retransfer
to the night shift.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights to engage in or to refrain from
engaging in union activities by coercively interrogating them
concerning their union activities, promising them benefits to dis-
courage union activity, threatening to cancel benefits to discour-
age union activity, transferring them from one shift to another
for the purpose of discouraging their union membership or ac-
tivity, or in any other manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to,
form labor organizations, to join or assist International Molders
and Allied Workers Union, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act, except to the
extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a) (3) of the Act, as amended.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3),
of the Act, as amended.
INTERSTATE SMELTING AND REFINING CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( 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.
Employees may communicate directly with the Board's Regional
Office, 176 West Adams Street, Chicago, Illinois, Telephone No. Cen-
tral 6-9660, if they have any question concerning this notice or com-
pliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , 29 U.S.C. Sec. 151, et seq., herein called the Act.
INTERSTATE SMELTING AND REFINING CO. 225
This case, heard before Trial Examiner George L. Powell at Chicago, Illinois,
on November 18 through 22, 1963, pursuant to a charge filed August 12, 1963, and
a complaint issued September 30, 1963, presents three issues: Whether Respondent
interrogated its employees concerning their union membership, activities, and
desires; whether Respondent discriminatorily transferred employees to workshifts
because of their union activities; and whether Respondent refused to bargain in
good faith with a majority representative of its employees in violation of Section
8(a)(1), (3), and (5) of the Act, respectively. The Respondent, on October 9,
1963, denied essential allegations of the complaint in its answer. Respondent
admitted questioning employees with respect to the validity of the signatures on
the authorization cards and the knowledge of what the employee was signing;
admitted the transfer of employees to work shifts contending that such transfers
were motivated by manufacturing and economic requirements only; admitted that
it refused to bargain with the Charging Party but denied that the Union in fact
did represent a majority of the employees by virtue of the authorization cards.
At the hearing, each party including the Charging Party, was afforded full op-
portunity to call, examine, and cross-examine witnesses, to introduce relevant and
material evidence, to present oral argument, and, if desired, to file briefs. At the
hearing the General Counsel, the Respondent, and the Charging Party were repre-
sented by counsel.
Upon the entire record in the case, including my observation of the witnesses, and
after due consideration of the briefs filed by General Counsel and Respondent,
on January 8, 1964, I make the following:
FINDINGS OF FACT 1
1. THE BUSINESS OF THE RESPONDENT
Interstate Smelting and Refining Co., herein called Respondent, a Delaware
corporation, maintains a plant and place of business in Chicago, Illinois, where it
is engaged in the manufacture of metal ingots. During the past calendar year
Respondent, in the course and conduct of its business operations, sold and shipped
goods valued in excess of $1,000,000 from its Chicago, Illinois, plant directly to
States of the United States other than the State of Illinois. During the same
period it received goods and materials valued in excess of $500,000, which goods
and materials were shipped directly to its plant in Chicago, Illinois, from States
other than the State of Illinois. The Respondent admits and I find that, at all
times material herein, it has been engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Molders and Allied Workers Union, AFL-CIO, herein called Charg-
ing Party, is an organization of employees created for the purpose of representing
employees with employers regarding collective bargaining for wages, hours, and
working conditions. It has engaged in collective bargaining for employees in the
Chicago, Illinois, area and has signed collective-bargaining contracts. It has a
constitution and bylaws which provide for its internal management and which
states as one of its purposes that it is to "unite into one labor organization all
workers eligible for membership, regardless of religion, race, creed, color, national
origin, age or sex to secure improved wages, hours, working conditions and other
economic advantages for our members through collective bargaining 112 I
find, on the basis of the above facts, that the Charging Party is, and at all times
material herein has been, a labor organization within the meaning of Section 2(5)
of the Act.
1 The following corrections are made in the record: Page 47, lines 9, 15, and 16 and
page 48, line 16, change "Levenberg" to "Liggett" ; page 49, line 6, change "Gundell" to
"Reissman"; and page 191, line 19, change "4-H" to "4-Dl".
2 These facts are taken from the uncontradicted and credited testimony of James Spears,
assistant business agent of Charging Party, together with General Counsel's exhibits
offered in evidence such as exhibit No. 16. Evidence on this point was adduced because
Respondent 's answer denied knowledge of the facts.
760--577-65-vol . 148-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The Union Organizing Campaign
Union activity by the employees began at the plant of the Respondent the first
week in July 1963,3 with discussions of union benefits led principally by employees
George Chandler and John (Jr.) Spraggins. As the Respondent had three shifts,
Chandler talked to the employees on the first shift, Junior Spraggins talked to the
employees on the swing shift, and Force Amos talked to those on the night shift.
As the employes appeared to desire union representation, Chandler, on July 15,
talked with James Spears, assistant business agent of the Charging Party, and
received union authorization cards from Spears on that date. Three days later
on July 18 Spears met at Chandler's home with employees Emmitt Moore, James
Rogers, and Chandler. On that date the three employees signed cards authorizing
the Union to represent them for purposes of collective bargaining.4
As of Monday, July 22, the Charging Party had 13 authorization cards from
employees and on Tuesday, July 23, it had 14 cards. As the parties stipulated
that the maximum number of employees in the production and maintenance unit
would be 26 employees, it is noted that on July 23 the Charging Party had authoriza-
tion cards from a majority of employees in the unit. Further, by July 27 the
Union had a total of 16 authorization cards and these are all of the cards that are
involved in this proceeding.
However, as the Charging Party had 14 authorization cards on July 23, its at-
torney wrote a letter to Respondent on July 24, which letter was admittedly received
on July 25, stating that the Charging Party represented a majority of the Respond-
ent's production and maintenance employees and that the Charging Party desired
a meeting for the purposes of collective bargaining. This letter also offered to
prove the majority status of the Union. Respondent did not reply to the letter
but mailed it to its attorney on the date of its receipt. No response was made to
the letter by the attorney.
Hearing nothing from Respondent regarding its demand of July 24, 1963, the
Charging Party by George Chandler, James Spears, and its attorney, Robert Sugar-
man, visited the plant on the morning of July 29 and met with Fred Rothschild.
At this meeting Rothschild was informed that the cards established the fact that
the Charging Party represented a majority of the employees, and Rothschild admits
that he was offered the cards and was asked to certify or verify the signatures. He
refused to take the cards saying that he would not verify anything, and, according
to the credited testimony of both Spears and Chandler, Rothschild stated that he
had no doubts as to the authenticity of the cards but thought that there would prob-
ably be an election as had been allowed previously.5 Sugarman told Rothschild that
an election was not necessary inasmuch as the Charging Party already represented a
majority of the employees and was entitled to recognition and bargaining and they
were prepared to bargain. Rothschild refused. This ended the meeting.
Sugarman and Spears returned to Sugarman's office immediately following the
meeting with Rothschild and they mailed Rothschild the 16 cards on the same date
of July 29 in order that he could check the signatures. Rothschild received the
letter, with the cards, on July 30 and on the same date mailed the cards to his
attorney. At no time did the Respondent check the cards against employee signa-
tures it had in its possession. Within a day or so Rothschild went on a vacation
which lasted until August 20, 1963.
a All dates are 1963 unless otherwise noted
{ These 3 by 5 cards entitled "Authorization for Representation," in large capital letters,
had the following matter printed immediately before a line for a signature and date: "I
hereby authorize the International Molders and Allied Workers Union, AFL-CIO to rep-
resent me and in my behalf, to negotiate all agreements or contracts in regard to wages,
hours and working conditions." Following this was a line for a witness signature and
three other lines for address, employ ei's name, etc.
5 When asked at the trial for his reasons in refusing to recognize the Union as the
majority representative of the employees, Rothschild testified, among other reasons, that
there were other men in the plant who refused to sign the cards As there was a maxi-
mum of 26 employees and as there were 16 authorization cards as of this time, he replied
to a question, "There is only 5 or 6 or 8 left. So, it is pretty obvious which way it goes.
The other reason why I objected to unions, this particular union, in general, is the fact
we have had a union situation once before and we were always allowed to have an elec-
tion at that particular time."
INTERSTATE SMELTING AND REFINING CO. 227
In the latter part of July, but after receipt of the cards on July 30, Rothschild
admitted questioning employee Gus Smith about how he felt about the Union and
whether he signed a union card. He also asked employee J. C. Johnson about
union authorization cards and he also asked employee Hamilton whether he had
signed a card.6
8(a)(1) Evidence
In the week before the July 24 letter, Rothschild approached Chandler,7 the con-
tact man for the Charging Party, on July 19 telling him that he had heard that
Chandler was engaged in organizational activity but that he, Rothschild, would
run his place as he saw fit and no outsider would come in and run it. He asked
Chandler to explain why he was so angry that he had to seek union representation .8
Rothschild talked to employee Douglas before July 25 9 about the union activity
in the plant and attempted to get from him the names of employees engaged in the
activity.
Employee Force Amos credibly testified that on July 27 or 28 Rothschild ap-
proached him and asked to speak to him. Rothschild wanted to know the differ-
ence between the pay he received for a week for working on the day shift and what
he would earn if he worked on the night shift. Amos told him between $25 and
$30. Rothschild then told him that it was his intention to give a raise but that he
could not do it until he found out what was going to happen after this union
organization. Rothschild told him that he thought Amos was 100 percent with
Chandler but wished Amos "would take it under consideration." Rothschild offered
to see about a credit union for Amos.
Also around July 27 or 28 Rothschild asked employee Harvey George whether
he had signed a union card. Additionally, Rothschild admitted having a conversa-
tion in the latter part of July with both Albert Humphreys and his brother Chail
Humphreys about union cards. He told Al Humphreys that if the Union came in
he would need fewer men and Humphreys might be laid off.
The day after receipt of the letter requesting bargaining, on July 26, Chandler
and John Spraggins were transferred from the day shift to the night shift. Al-
though this is referred to later on under the heading entitled "The 8 (a) (3) Evidence,"
it is noted at this place because at the time of notification of the transfer Rothschild
informed each of them that he knew of their individual participation in the orga-
nizing activities in the Union. Chandler credibly testified, in addition, that Rothschild
said the Union the employees wanted was no good and that he would help the
employees get a union if they wanted one. Rothschild does not admit making this
statement, but in his initial testimony one of the reasons he gave for refusing recog-
nition to the Union was that in a plant of the size of Respondent's "I think the men
are much better off without a union, that is not representative of our particular type
of business." And he added that the Charging Party was "definitely not"
representative.
During the conversation with Chandler on July 26, Rothschild, in addition to
expressing his surprise at Chandler's union activity inasmuch as Rothschild had just
paid some $150 in attorney fees for him, indicated that he, Rothschild, would make
quite a few changes at the plant. Chandler testified that Rothschild told him, "You
fellows goofed up things. And I asked him, `What was that.' And he said, `I
was planning on giving a raise today.' And I said, `Why all of a sudden you want
to give a raise.' I said, `Before we had to demand a raise, almost begging for it.'
And he said, `But now I cannot give a raise."'
Also in late July, Rothschild asked Lenora Spraggins about the Union. Accord-
ing to Spraggins, "I told him I didn't know nothing about it. So, he shook his head
and walked away."
O At first Rothschild as a witness denied asking this question of Hamilton but changed
his testimony when confronted with his prior affidavit His testimony as to the Smith
and Johnson questioning was likewise inconsistent and evasive.
7 According to Chandler's credited testimony.
s Respondent apparently believed that Chandler engaged in organizing Respondent
through anger at Respondent
9 Rothschild admitted receiving word of union activity in the plant from Douglas prior
to July 26 and as formal notice was received by letter on July 25 I find the knowledge
was acquired before July 25.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions as to 8(a)( I) Violations
The following activities enumerated and discussed above were violative, of
8(a) (1) because they interfered with and some even coerced and restrained the
employees in exercising their rights to join a labor organization under Section 7 of
the Act: 10
(1) The interrogation of John Douglas by Rothschild in July and the attempt to.
get from him the names of employees engaged in union activity.
(2) Rothschild's interrogation of Chandler on July 19 telling him he had heard
that Chandler was engaged in union activity and that he would run his place as
he saw fit and did not need a union to run it.
(3) Rothschild's conversations with Spraggins and Chandler on July 26 in
which he told them he knew of their union activity evidenced surveillance of their
union activity. In addition when he interrogated Spraggins as to how he felt about
the Union and told Chandler and Spraggins that a lot of changes in the plant would
be made, and told Chandler that if it were not for the Union the employees would
have received a raise and that the Union was no good and he would get a union for
Chandler, not only interfered with these employees but coerced and restrained them.
(4) By interrogating Gus Smith, J. C. Johnson, Lueturner Hamilton, Harvey
George, Al Humphreys, Chail Humphreys, and Lenora Spraggins in late July,
Rothschild interfered with his employees' union activities.
(5) By offering to see about a credit union for Force Amos, and telling Amos,
that because of the Union he could not give a raise to the employees, and that he
knew of Amos' union activities, Rothschild, around July 27 or 28, in effect promised
a benefit to his employees if they would quit the Union and thus restrained them.
(6) Finally, by questioning Al Humphreys in late July as to why he signed a
union card and telling Humphreys that if the Union came in Respondent would
need fewer men and Humphreys might be laid off, Rothschild threatened his em-
ployees with discharge if they brought in a union, and thus restrained them.
The 8(a) (3) Evidence
As noted above, on July 26, the day after receipt of the letter from the Charging
Party, Respondent transferred employees George Chandler and John Spraggins from
the day shift to the night shift and transferred employees Foree Amos and Albert
Humphreys from the night shift to their place on the day shift. Neither Chandler
nor Spraggins had requested the shift transfer to the night shift. Chandler had
been on the day shift during his entire 9 years' service with the Respondent. Spraggins
had been on the day shift for almost 1 year prior to the July 26 transfer.
Both Chandler and Spraggins testified to their conversations with Rothschild on
being notified of their transfers and they testified that they were told that they were
being transferred and not that they were asked if they wanted to be transferred. Each
testifying that Rothschild informed him that he knew of the employees' participation
in the organizing activity in the plant. Chandler credibly testified that after he had
been told of his transfer that he told Rothschild that there were approximately 10
fellows having less seniority than he and wanted to know why he was being picked
on. Rothschild then told Chandler ". . . that 4 different fellows had come to him
and told him me and John Spraggins was trying to get a union in here . and he
told me it was no good and he said that he would help us to get a union if we
wanted one." Rothschild told Chandler that he was surprised at him and that he
would make "quite a few changes-as a matter of fact, `I made one change already."'
This was when, as noted above, Rothschild told him he was surprised, apparently at
his union activities, because Rothschild had just paid $150 in attorney's fees for
him.ii Also on July 26, Rothschild, according to the credited testimony of John
10 The pertinent parts of the Act read as follows:
SEC. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all such activities except to the extent that such right may be affected'
by an agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3).
SEC. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of-the-
rights guaranteed in Section 7 ;
• r r • s s
11 What these fees were for is irrelevant to this proceeding.
INTERSTATE SMELTING AND REFINING CO. 229
Spraggins, told Spraggins, "You got a union in here, how do you feel about it-
4 fellows told me that you and George [Chandler] is pushing the Union." Later
on the same day, John Spraggins was told by Rothschild that he was being trans-
ferred to the night shift. Spraggins' credited testimony on this point-is as follows:
Approximately, maybe a half or [sic] hour, he came back and told me, "Jr.,
you are going on nights. You come in Sunday nights with Doyle," And I
said "Okay" at first and then I asked him why all the sudden change. And
he said it was going to be a lot of changes, "You are not the only one. You will
have company." And then he asked me if I needed any time. He would give
me 3 or 4 days to get ready for nights.' And I told him I didn't need any
time, I would work anywhere, it didn't make any difference.
This is the first time that Rothschild had ever spoken to Spraggins about a transfer
to a night shift.
There is credible testimony that the night-shift work is the hardest work at the
plant, requiring strength and back work that is physically tiring. There are only
five night-shift employees. Their hours of work are longer than those on any of
the other two shifts and this added hours of work accounts for the fact that they
receive a greater weekly wage.
When Chandler and John Spraggins were transferred to the night shift, it was
necessary to transfer two night-shift employees to the day shift. The two employees
so transferred were Al Humphreys and Foree Amos.
Rothschild gave seven reasons for making the shift changes on July 26. These
reasons together with the facts are listed as follows: (1) Doyle Lane asked for help
on the night shift as Chail Humphreys, a night-shift employee, was not too strong
at the time. However, Chail Humphreys was not transferred to the day shift on
July 26; (2) Doyle Lane asked for more "meat" or muscle on the night shift.
George Chandler, 5 feet 10 inches tall and weighing 150 pounds, was transferred
to the night shift and Foree Amos, an apparently powerful man, 6 feet tall, weigh-
ing about 223 pounds, was transferred to the day shift. Additionally Rothschild
admitted that Chandler did not like to engage in physical labor. The man whom
Rothschild characterized as the strongest man in the plant is Harvey George who
is 6 feet tall, weighing 200 pounds, but he was not transferred to the night shift;
(3) John Spraggins owed money and he could use the extra money he would earn
on the night shift. However, John Spraggins had borrowed money heavily in April
or May at which time he was not transferred. Also he had a substantial debt
owing to various companies in December 1962 and March 1963 but was not trans-
ferred. Respondent's counsel stated that Spraggins was in financial difficulties for
extended periods of time. The employee having the highest number of garnish-
ments with Respondent is Charles Sanders but he was not transferred to a greater
paying job; (4) Rothschild thought he was doing Chandler a favor by transferring
him because he knew that Chandler needed the money. No evidence was adduced
on this other than the generally known fact that people do need money; (5) other
'employees have had shift transfers. In this respect both Harvey George and Emmitt
Moore have had shift transfers. However, Moore testified that he had had no shift
transfer in 2 years and George's testimony is that he has had shift transfers at regu-
lar intervals but none to the night shift and the reason for his shift transfers was
because his job of relining furnaces, when the need arises, causes him to perform
on a shift other than his normal shift; (6) Foree Amos was transferred from night
to day shift as he wanted to learn more. Amos denied requesting a transfer to the
,day shift but testified that at the time when Rothschild told him of the transfer,
Rothschild told him he thought Amos could learn quite a bit working with the fur-
nace men on the day shift; and (7) Al Humphreys had requested the transfer to
the day shift for personal reasons. This is true but the request was made when he
was first hired months before the transfer, and he had asked the chemists in the
last 6 months about a transfer.
Conclusions as to the 8(a)(3)
On the day following receipt of the Union's first demand for bargaining, the Re-
spondent transferred two most active and known union adherents from the day
shift to the night shift where the hours are longer, the work is harder, but the
weekly pay is better due to the longer hours worked. Neither had requested the
transfer; one had always been on the day shift for his 9 years of employment, was
slight of build, and disliked hard physical labor, yet Respondent said he was chosen
because the night shift needed "meat" or more muscle. It is noted further that the
one that came from the night shift was physically better equipped to provide the
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"meat." This is incredible. Likewise the other reasons detailed above, when viewed
with the facts, become incredible and I find these reasons to be pretexts to the true
reason that Chandler and John Spraggins were transferred to the night shift in order
to discourage their union activities. Rothschild's conversations with them about
the Charging Party, his threatening changes and showing his animus to the Charg-
ing Party took place just before he told them of their shift changes. In view of
the Respondent's knowledge of the union activity of Chandler and John Spraggins,
the acknowledged animus to the Charging Party, the threats of changes and other
independent violations of Section 8(a)(1) as found above, the fact that the night
shift was more difficult (as well as being the night shift), and the lack of credible
nondiscriminatory reasons for the shifts, I find the shift transfers of Chandler and
John Spraggins was discriminatory and was made to discourage membership in the
Charging Party and hence was violative of Section 8(a)(3) of the Act. As dis-
crimination in the hire and tenure of employment and conditions of employment
coerces and restrains employees in exercising their rights under Section 7 of the
Act, this also violates Section 8(a)(1) of the Act.
I further find that when Respondent made room on the limited night shift for
Chandler and John Spraggins by moving Amos and Al Humphreys to the day shift,
the latter two were discriminated against in violation of Section 8(a)(3) and (1) of
the Act as a consequence of the transfer of Chandler and Spraggins. In other
words it made no difference who Respondent selected to move from the night shift
to the day shift. Accordingly, it is unnecessary to go into the charges and claims
having to do with the selection of Al Humphreys and Force Amos for the day shift
as the Act was violated in any event.
Authorization Cards-Facts and Conclusions
As noted earlier, the union authorization cards specifically authorized the Charg-
ing Party to represent the signed employee and to bargain collectively for him and
on his behalf.
The witnesses were sequestered at the hearing and thereby did not hear the
testimony given by each other. Respondent called many of the employees to
testify with respect to their cards.12
Respondent did not contest the authorization cards for the following seven em-
ployees and the evidence brought up at the trial cast no doubt on the fact that these
cards are proper authorizations for representation held by the Charging Party:
F,mmitt Moore, Jr., Martin Sanders, John Spraggins, Lenora Spraggins, Joe Jack-
son, Chail Humphreys, and George Chandler.
As to the remaining 9 of the 16 authorization cards, Respondent raised certain
belated defenses: As to Felix Burdge, that he was a retired employee. As will be
detailed later, he is a regular part-time employee and should be included in the
unit. He signed his card on July 27 and Sugarman had it when Rothschild was
met on July 29; as to Gus Smith , that he cannot write. There is no probative
evidence that Smith could not sign his name and Smith , himself, testified that his
wife read it to him and he signed the authorization card. The signed card was
given to Chandler on July 19. Additionally, the Respondent vouched for the
authenticity of the signature of Smith on the Company 's group insurance card and
that is the same signature as on the union authorization card . This is a good
authorization card.
As to Lueturner Hamilton, the signature was printed on his authorization card.
Hamilton testified that he did print his signature and that it was his signature. Chan-
dler did not talk to him about the card when he gave it to Hamilton . Hamilton
signed it on the date he got it (July 15) and put it in Chandler's coat pocket. He
also testified to a threat, i.e., he was told by Chandler that if the Union won the
election and he had not signed a card he would be fired. This threat is,denied by
Chandler. The denial is credited under all the circumstances including the fact
that Hamilton was one of the very first to sign a card and at this time with Chandler
just beginning the organizational campaign following previous discussions with
employees it is reasonable that he would have been giving the cards to employees
who had expressed an interest in being represented by this union. Further, even
assuming the contrary, there is no evidence in the record that such a statement
was made prior to the signing of the card. Hamilton also had told Respondent
when interrogated in July that he had signed a card. This is a good authorization
card. As to Charles Sanders, Maxie Price, and Harvey George, the cards although
32 Respondent sought a ruling from the Trial Examiner that the witnesses were hostile.
Ruling was reserved until found necessary . It was never made.
INTERSTATE SMELTING AND REFINING CO. 231
signed were incomplete in that certain spaces on the cards were not filled in. These
cards were all signed between July 18 and 20. As the authorization for the Union
became effective with the employees' signatures, these cards are all good. As to
Al Humphreys, James Rogers, and Foree Amos, only the signature of the witness
was questioned and not that of the employee authorizing the Union. As there is
no question as to their signatures and that the cards were signed on July 18 these
cards are all established as true authorization cards.13 I find that all 16 authoriza-
tion cards are good. I earlier found 13 of these were signed on or before July 22;
14 by July 23; and all 16 by July 27. Assuming for the moment that the unit
was the maximum of 26, the Charging Party had majority representation in clear
and unequivocal authorization cards on July 23, the day before it wrote Respond-
ent requesting bargaining.14
The Unit
The parties stipulated at the hearing that Max Gundell, Max Reissman, Robert
Levenberg, and Jerry Wachdorf were not to be included in the unit because they
were admitted supervisors.
There is an issue, however, with respect to whether or not Doyle Lane, Lee Liggett,
and Enoch Spiller were supervisors. Rothschild testified that none of them could
hire, fire, or discipline employees. As to these three individuals, Lane was in
charge of the four other employees working on the night shift telling them when
to charge the furnace, press copper, unload trucks, and what extra work, if any,
the employees had to do-jobs that employees would not perform unless directed to
do so. He would also tell the employees when they were to quit work and he
had granted time off for sick leave. Finally, he, as well as Lee Liggett, is listed
as the one to call in case of an emergency at the plant; this list being posted near
the employees' timeclock. I find from this that Doyle Lane is a supervisor under
the Act.15 As to Lee Liggett, Chandler testified that although Rothschild would
do the hiring of an employee he would first check and discuss whether or not
the man should be hired with Liggett to get his approval. Credited evidence estab-
lishes that when John Spraggins was rehired in August 1962, Rothschild told him
that Liggett was the top man or foreman on the day shift and that he should see
Liggett if he wanted to know something. Also, Rothschild had told the employees
shortly after his father had died in 1955 or 1956 that Lee Liggett "was the fore-
man, that he was in charge." Harvey George credibly testified that some 2 months
before the hearing that Lee Liggett had moved him from the middle shift to the
day shift. And that about 2 or more years ago Rothschild had offered him a job
as foreman which he turned down. He was told by Lee Liggett shortly thereafter
that Liggett was the foreman. Al Humphreys likewise testified that Lee Liggett
transferred him to take his brother's place on another shift. John Spraggins
testified that if he wanted time off while on the day shift he would ask Rothschild
who would refer him to Liggett for his approval before taking off. Rothschild
admitted that Liggett ". . . sees to it that the molds are heated, he sees to it
that the men, there is a proper amount of men up there when we start slag skimming
off, it is referred to in the trade, which is done twice a day to each furnace."
Rothschild, under cross-examination, admitted that "Lee Liggett carries out manage-
ment orders in the plant. He is in charge of both furnaces and any kind of main-
tenance detailing of men." His rate of pay is 30 cents an hour more than that of
any other employee.
12 Chandler had given Amos three cards. Amos kept one and gave one to each of the
Humphreys brothers. A day or so earlier, he had told Al and Cliail Humphreys that
Chandler would have cards for them to sign to organize a union and they knew what the
cards were for All three cards were signed in Al Humphreys' car and they agreed to
witness each other's signature
14 Respondent contended that (1) some employees were told before they signed the cards
that the Charging Party practically had a majority already signed up, and ( 2) some were
told there would be an election. As to (1), the cases are too numerous to mention that
this does not invalidate authorization cards. As to (2), the record does not substantiate
this allegation by credited probative evidence One employee thought there would be an
election but the thoughts or afterthoughts of an employee as to why he signed such a
clear authorization card as in this case cannot negate his action in signing the authori-
zation card. It is likewise well established that this finding need no statement of
authority.
is It is also noted that Rothschild defended his shift transfer of Chandler and John
Spraggins on the ground that Doyle Lane needed more "meat"
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find from this that Lee Liggett effectively recommends hires, assigns work to
employees, and makes transfers of employees from job to job on his own respon-
sibility and initiative. He has authority, as admitted by Rothschild, and based on
the above he is a supervisor as defined under the Act.
Also on cross-examination Rothschild admitted that Lee Liggett had more au-
thority than Enoch Spiller. Spiller is in charge of the middle shift or the second
day shift. Rothschild and the Respondent's president, Max Gundell, both inform
Spiller of the work to be done on his shift and Spiller assigns this work to his
men and directs them in its performance. Spiller's instructions are followed. His
shift starts at 9:30 a.m. and works until about 7 p.m. until relieved by the night shift,
which in turn works until 7 the following morning when it is relieved by the first
shift around 7:30. There are four men on Enoch Spiller's shift and at the end
of a working day Spiller would tell them when to go home. Unlike other businesses,
employees in Respondent's plant would not be able to leave at a certain fixed hour
due to the fact that they would be charging or tending furnaces. Spiller and his
men are the only shift working on Sundays. These facts establish the fact that
Enoch Spiller is a supervisor under the Act.
Accordingly Lee Liggett, Enoch Spiller, and Doyle Lane should not have been
included in the above-mentioned maximum unit of 26 employees.
Two More Unit Problems
Robert Liggett and Felix Burdge were also included in the maximum unit of 26
employees.
Robert Liggett was not working nor on the payroll in July when the above bar-
gaining demands were made. He had been severely injured in an automobile acci-
dent and had not worked for Respondent for about 11h years, before July 1963.
Although Respondent contended that he had been maintained •on various hospitali-
zation and life insurance plans during the time he was not working, no testimony
was presented on this issue. His first paycheck in 1963 was for the week ending
August 21. I find he should not be included in the unit as of July.
Felix Burdge, although a retired employee, had an arrangement with Respondent
to permit him to work to the extent of $1,200 per year. He had worked, had an
expectancy of continued regular part-time employment, Rothschild had admitted
that he considered him to be a part-time employee, and he had worked for the week
ending July 24. Accordingly he has a community of interest with the other em-
ployees in the unit, has the assurance of regular part-time employment, and there-
fore has a right to help choose the labor organization to represent him. Accord-
ingly, I will continue to include him in the unit.
My final conclusion as to the scope of the unit is that the maximum unit of
26 agreed upon by the parties has been reduced to 22 employees by the removal of
Lee Liggett, Enoch Spiller, Doyle Lane, and Robert Liggett.
Recapitulation and Further Chronology
Before taking up the 8(a)(5) allegations in the complaint I wish to briefly bring
the above events into focus in order to further carry out a chronology of the case.
In summary, union activity by the employees began in the plant of Respondent the
first week of July 1963 under the leadership of George Chandler and John Spraggins.
Out of the unit found of 22 employees or even out of the largest possible unit of
26 employees, the Charging Party represented a majority by having authorization
cards from 14 employees on July 23. It wrote a letter to Respondent on July 24
stating its majority and requesting bargaining which letter was received July 25.
The next day on July 26, George Chandler and John Spraggins were transferred
from the day shift to the night shift and Al Humphreys and Foree Amos were
moved to make way for them from the night shift to the day shift. Then the 15th
and 16th authorization cards were received by the Charging Party the morning of
July 29. Following receipt of the 16th authorization card, Chandler with Union
Representative Spears and Attorney Sugarman met with Rothschild, Respondent's
vice president, at which time Rothschild was shown and told that these were the
authorization cards which Rothschild was free to verify. Rothschild refused to re-
ceive the cards or to verify them but did not contest the authenticity of the signa-
tures, and the cards were mailed to Rothschild the same day. Between receipt of
the cards and the end of the month of July Rothschild discussed the Union and the
union activities with various employees, then went on vacation until August 20.
INTERSTATE SMELTING AND REFINING CO. 233
Then on July 31 the Union received a letter from Respondent 's attorney to the
effect that the attorney handling the matter for Respondent was on vacation and it
would be impossible to meet for bargaining . Following this on August 8, Respond-
ent's attorney acknowledged receipt of the Union's letter of July 29 and the authori-
zation cards and indicated that a petition would be filed with the National Labor
Relations Board . At no time did Respondent register doubt as to the majority
status. On August 12 the instant charge was filed. On August 30 George Chandler
and John Spraggins received identical letters from Respondent advising them of a
policy of making night work available to individuals who want increased earnings.
The letter also stated that if the employees did not want to continue on the night
shift they should notify the employer who would take it under consideration.
Spraggins and Chandler notified the Charging Party of the letter . On August 27
Respondent filed a petition for a Board election . On September 3 the Charging
Party wrote Respondent requesting retransfers for Spraggins and Chandler and re-
quested collective bargaining . Four days later on September 7, Respondent 's attor-
ney informed the Union there would be no bargaining until there was certification
of the Charging Party. October 10, after issuance of the complaint in this case,
Respondent withdrew its election petition and the withdrawal was approved by
Regional Director on October 17. Finally on November 11, John Spraggins was
transferred from the night shift to the day shift after an interview with Re-
spondent 's attorney covering Spraggins ' union activity and distaste for night-shift
employment
Conclusions as to the Refusal To Bargain Allegations of the Complaint
As noted from the above findings of fact, the Charging Party had 14 authoriza-
tion cards on July 23 when a total of 12 employees would have been a majority in
the appropriate unit , and it had 16 authorization cards on July 29 when the meet-
ing between the agent of the Charging Party and the Respondent took place. Under
the laws of this Nation it is the duty of employers to meet and bargain with their
majority representative over wages , hours, and terms and conditions of employment.
The problem arises in these cases , as it did in this case , as to the proper method of
selecting the majority representative . I believe the law is clear that upon being con-
fronted with a demand by a labor organization that his employees have requested
it to represent them in collective bargaining , the employer can immediately , and, in
good faith , call for an election to be performed by the National Labor Relations
Board. The Board's proven excellent election procedures are more than adequate
to resolve the question concerning representation . However, the cases involving
matters of this sort clearly point to the conclusion that an employer's actions follow-
ing his request for an election must be consistent with his request that the em-
ployees get a free election . In other words , if an employer engages in unfair labor
practices just after requesting a Board election , this is certainly evidence that the
employer is seeking an election for the purpose of stalling for time in order to dis-
sipate the voting strength of the union involved . This evidences a lack of good-
faith doubt of majority in seeking the election . It is unreasonable to engage in
conduct calculated to cause a defection in a union which does not represent a
majority of the employees , so such conduct tends to show the employer really has
no doubts as to majority.
The language of the Board on this point is illustrated in Joy Silk Mills, Inc., 85
NLRB 1263 , wherein the Board stated:
We have previously held that an employer may in good faith insist on a Board
election as proof of the Union 's majority , but that it unlawfully refuses to
bargain if its insistence on such an election is motivated , not by any bona fide
doubt as to the Union 's majority , but rather by a rejection of the collective-
bargaining principle or by a desire to undermine the Union In cases of this
type, the question of whether an employer is acting in good faith at the time
of the refusal is, of course , one which of necessity must be determined in the
light of all relevant facts in the case, including any unlawful conduct of the
employer, the consequence of events, and the time lapse between the refusal
and the unlawful conduct.
The actions of Respondent in the instant case do not show good faith in recog-
nizing and dealing with the representative selected by a majority of its employees-
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For example neither Respondent nor its attorney ever made a response to the
Union's letter to it dated July 24,16 1963. In reply to the oral demand for bargain-
ing and for a card check made on July 29, the Respondent refused to accept the
authorization cards stating that it did not verify nor certify card signatures. That
is all very well but an employer must bargain with its employees' representatives.
It admitted that it had no doubt that the cards were authentic, but concluded that
there would probably have to be an election . Evidence of good-faith doubt of
majority on the part of the employer would be a timely filing of a petition for an
,election , and not a mere statement that there would probably have to be an election.
Again, the employer refused to make a check of the cards against employees' signa-
tures in his possession upon receipt of the 16 authorization cards on July 29, nor did
it notify the Union of any good-faith doubt of majority status or appropriate unit
or any other matter. Instead of responding to this demand, Respondent's vice
president, who apparently handled the labor relation matters, left the matters in
the hands of its attorneys and went on vacation for some 20 days.17 Some 4 weeks
after the oral demand of July 29 the Respondent filed a petition for an election, and
this was 2 weeks after the charge in this case was filed. But let us examine Re-
spondent's conduct in the interim period.
The Employer, on the day following receipt of the bargaining demand letter from
the Union, transferred two of the most active union adherents from the day to the
night shift. As convincing evidence shows that the Employer knew of the union
activities of these employees prior to the letter of July 24 and as there was no satis-
factory reason given for the transfer I found above that the transfer was made in
order to discourage union activity. Accordingly this action was found to be dis-
crimination against the employees in violation of Section 8(a)(3) of the Act.
In addition to the discriminatory transfers, the employer engaged in illegal inter-
rogation of employees as detailed above, shortly after receipt of the July 24 letter
demanding bargaining. This interrogation of employees and the discrimination
practiced against them with respect to the hire and tenure of employment is not
consonant with a good-faith desire to further lawful collective bargaining nor is it
consonant with a good-faith desire to have an election so that the employees can
freely and under laboratory conditions choose their collective-bargaining agent.
Rothschild testified as to four reasons why it refused to recognize the Charging
Party upon receipt of the July 24 letter and when confronted on July 29. (1) He
did not like the way the Charging Party secured the union-authorization cards claim-
ing, in effect, that fair play was not followed. This lacks the necessary record sup-
port to sustain it as noted earlier. Furthermore, the proper way to correct absence
of fair play would be to go to a Board-conducted election with proper statements
tending to enlighten the employees rather than in itself interfering with their rights.
Two wrongs have never made a right. (2) The employer did not recognize the
majority status of the Union inasmuch as other men in the plant were against the
Union. There is no merit to this as the employer is obligated to recognize a majority
of the employees. Sixteen employees authorizing the Union out of the original total
unit of 26 was an obvious majority. (3) Respondent believed that a plant its size
would be better off with a union that was more representative of its particular type
of business than the Charging Party. There is no merit to this. The type of union
desired by the employees is solely their prerogative, the selection of which is free
from interference by the employer. (4) Respondent had the right to have an
election. There would be merit to this if the employer had not punched so many
holes in it with the actions it took between the time it refused to recognize the
Charging Party and when it told the Charging Party of its desire to go to an election.
Accordingly, under all the facts in the case, I find Respondent had no reasonable
doubt as to the unit nor as to the majority status of the Charging Party and that it
refused to bargain in good faith in violation of Section 8(a)(5) of the Act from
July 25, 1963, and thereafter.
16 The failure to challenge majority when bargaining is requested rebuts good-faith
doubt. N.L.R.B. v Philamon Laboratories, Inc, 298 F. 2d 176, 180 (C.A. 2) ; N.L.R.B. v.
American Aggregate Company, Inc., et al, 305 F. 2d 559, 561-562 (C.A 5) (to com-
pletely ignore requests is refusal in the rankest and rawest form) ; N.L R B. v Vapor
Blast Mfg., 287 F. 2d 402, 405 (C.A. 7) ; N L.R B. v. Lively Service Company, 290 F 2d
205, 208 (CA. 10).
17 A factor for the Board to consider in examining good-faith doubt of majority by an
employer is the lack of an expression of good-faith doubt. (Tinley Park Dairy Company
d/b/a Country Lane Food Store, 142 NLRB 683 )
INTERSTATE SMELTING "AND REFINING' CO. 235
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (3), and (5) of the Act, I shall recommend below that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Respondent's violations of the Act not only were widespread but in affecting the
terms and conditions of employment of his employees they go to the very heart of
the Act.18 Under these circumstances the commission of further violations may
reasonably be anticipated, and I shall therefore recommend a broad cease-and-desist
order.
Affirmatively I shall order Respondent to bargain with the International Molders
and Allied Workers Union, AFL-CIO, upon-request, and order it to transfer em-
ployees George Chandler and John Spraggins back to the day shift, if they have not
already done so. As these transfers to the day shift are made, employees Foree
Amos and Al Humphreys should be returned to their former night-shift positions.
This does not preclude any future nondiscriminatory transfers.
Under the facts of this case where night-shift employees make more weekly earn-
ings than day-shift employees, I will require the Respondent to make whole Foree
Amos or Al Humphreys by paying them the difference in earnings between what
they made while on the day shift and what-they would have made had they been
permitted to remain on the night shift, from July 26, 1963, until so transferred,
together with interest thereon at the rate of 6 percent per annum, and that the loss
of pay and interest be computed in accordance with the formula and method pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing and Heating Co., 138 NLRB 716, to which the parties hereto are ex-
pressly referred.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Charging Party is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act and accordingly engaged in an un-
fair labor practice within the meaning of Section 8(a) (1) of the Act by:
(a) Interrogating John Douglas in July.
(b) Telling Chandler on July 19 that he heard that Chandler was engaged in
union activity, and that he would run his place as he saw fit and did not need a
union to run it.
(c) Notifying John Spraggins and Chandler on July 26 that he knew of their
union activity. Interrogating Spraggins as to how he felt about the Union, inform-
ing Chandler and Spraggins that a lot of changes would be made, telling Chandler
that if it were not for the Union the employees would have a raise, and informing
Chander that the Charging Party was no good and that he would get a good union
for Chandler.
(d) Interrogating Gus Smith in late July about the union situation in the plant,
asking whether Gus signed a union card, interrogating J. C. Johnson, Lueturner
Hamilton, Harvey George, Al Humphreys, and Lenora Spraggins.
(e) On or about July 27 or 28 promising Foree Amos that he would see about
a credit union, telling Amos that he could not give a raise because of the Union,
and telling Amos that he knew of his union activity.
(f) Also in late July questioning Al Humphreys as to why he signed a union
card and notifying Humphreys that if the Union came in they would need fewer
men and Humphreys might be laid off.
4. Respondent discriminated in regard to hire or tenure of employment or any
term or condition of employment to discourage membership in the Charging Party
and accordingly engaged in an unfair labor practice within the meaning of Sec-
tion 8(a)(3) and (1) of the Act by transferring George Chandler and John
Spraggins from the day shift to the night shift and alternately transferring Foree
Amos and Al Humphreys from the night shift to the day shift on July 26, 1963.
5. All production and maintenance employees employed by Respondent at its
Chicago, Illinois, plant, exclusive of all office clerical and plant clerical employees,
is NL.R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards, professional and technical employees , and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. The Charging Party, International Molders and Allied Workers Union, AFL-
CIO, has been at all times since July 24, 1963, and now is, the exclusive repre-
sentative of the employees in the aforesaid unit within the meaning of Section 9(a)
of the Act.
7. Respondent refused to bargain collectively with the representatives of his em-
ployees and accordingly engaged in an unfair labor practice within the meaning of
Section 8 ( a)(5) of the Act after receipt of Charging Party's letter dated July 24,
1963. This refusal to bargain in good faith has continued thereafter . The lack of
good-faith doubt as to the majority status of the Charging Party is established first
by not contesting majority status after receipt of the letter on July 25, or at the con-
frontation on July 29, and second by engaging in conduct in violation of Section
8 (a) ( I ) and ( 3) of the Act , as set out above.
8. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7 ) of the Act.
[Recommended Order omitted from publication.]
Winston Rose and Mary Louise Rose , a partnership d/b/a Ideal
Donut Shop and Local 215, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica. Case No. P25-CA-1764. August 7, 1964
DECISION AND ORDER
On January 24, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices within the meaning of the Act, and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Respondents 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, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
1 We find, in agreement with the Trial Examiner , that the conviction of Hall for second
degree burglary does not alone impeach his testimony. A felony conviction may be intro-
duced in an effort to impeach the testimony of a witness (Crown Corrugated Container,
Inc., 123 NLRB 318; N.L.R.B. v. Baldwin Locomotive Works, 128 F. 2d 39 (C.A. 3) ;
United States v. Montgomery , 126 F. 2d 151 (C.A. 3) ), but the testimony of such a wit-
ness may still be credited . In agreeing with the Trial Examiner ' s credibility resolution,.
we note, as did the Trial Examiner, that the testimony of 'Hall was well corroborated in.
significant respects and by the circumstances generally.
148 NLRB No. 25.