Jas. H. Matthews & Co.

National Labor Relations Board - Board Decisions

Oct 27, 1964

149 N.L.R.B. 161 (N.L.R.B. 1964)

JAS. H. MATTHEWS & CO. 161
pelling of the wet plasters In making this determination, we are
awarding the work in question to employees represented by Local
759, but not to Local 759 or its members.
Because there is evidence that the work in dispute has been a con-
tinuous source of controversy in the Long Island area and that other
similar disputes may occur in the future, we shall not restrict the
scope of our determination herein to the specific jobs giving rise to
this proceeding. Therefore, our determination in this case applies to
all similar disputed work performed in the Long Island area by
Cafasso and Cuddihy.1e
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
this proceeding, the Board makes the following determination of dis-
pute, pursuant to Section 10(k) of the Act:
1. Laborers who are employed by Cafasso Lathing & Plastering,
Inc. and by Cuddihy & Huebner, Inc., represented by Plasterers'
Helpers Local 759, International Hod Carriers, Building & Common
Laborers Union of America, AFL-CIO, are entitled to perform the
operation of plaster-mixing machines and the plaster pumps used for
the piping and propelling of wet plaster.
2. Locals 138, 138A, and 138B, International Union of Operating
Engineers, AFL-CIO, are not entitled, by means proscribed by Sec-
tion 8(b) (4) (D) of the Act, to force or require Cafasso or Cuddihy
to assign the above work to their members.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 138 shall notify the Regional Director for
Region 2, in writing, whether or not it will refrain from forcing or
requiring Cafasso and Cuddihy, by means proscribed by Section
8(b) (4) (D) of the Act, to assign the work in dispute to its members
rather than to employees represented by Local 759.
6 International Union of Operatting Engineers , Local 66, AFL-CIO (Frank P. Badolato &
Son), supra.
10 See Bricklayers, Masons and Plasterers ' International Union of Amersca , Local No. 26
(Fox Valley General Contractors Association ), 147 NLRB 1615; Teamsters Local Union
No. 5, et at. (Hart-McGowan Foundation Co., Inc. ), 147 NLRB 1216.
Jas. H . Matthews & Co. and International Association of Ma-
chinists, AFL-CIO. Case No. 26-CA-1736. October 27, 1964
DECISION AND ORDER
On July 9, 1964, Trial Examiner Arthur E. Reyman issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
149 NLRB No. 18.
770-076-65-vol . 149-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of the Act, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Respondent and
the 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, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, 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 and the entire record in this case, including the
exceptions and briefs, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations, except as modified herein.
We agree with the Trial Examiner that Respondent violated Sec-
tion 8 (a) (5) and (1) of the Act in refusing to recognize and bargain
with the Union as the representative of a majority of its employees.
With respect to the Union's majority status during the critical pe-
riod, which is challenged by Respondent, the record shows that there
were 68 employees in the bargaining unit, exclusive of 4 leadmen
who were properly found by the Trial Examiner to be supervisors.
The Union thus needed 35 valid authorization cards to demonstrate
its majority, and 38 cards were submitted. Respondent specifically
challenges the validity of 6 authorization cards. In agreement with
the Trial Examiner, we find that the cards signed by Waller, Wick,
and Simpson are valid and that the purported withdrawal of Cook's
otherwise valid card was ineffective.' However, we do not agree with
the Trial Examiner's counting of the card signed by White. White
is unable to read and he signed his card only because union adherents
soliciting him, who did not read the card to him, told him that the
purpose of the card was to bring about an election.
The Trial Examiner found it unnecessary to, and did not, pass
upon the validity of the card signed by Cullum. This employee
signed a card during a union meeting, then crossed out his signature,
but finally printed his name on the card which was turned over to a
union organizer. Plainly, this was an effective designation of the
Union.
Upon the entire record, therefore, it is clear that a majority of the
employees within the stipulated bargaining unit had authorized rep-
resentation by the Union by January 11, 1964, on which date the
I As the Union had a majority without counting Cook's card , as hereinafter appears,
Member Leedom finds It unnecessary to determine the validity of Cook's card.
JAS. H. MATTHEWS & CO. 163
Union made its request for bargaining which was rejected by the
Respondent.2
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
that Respondent, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Or-
der with the following modifications:
Paragraph 1(a) is amended to read as follows:
"(a) Coercively interrogating its employees regarding their mem-
bership in, or activities on behalf of, any labor organization, or
taking any affirmative action to determine who among its employees
are or are not members of any labor organization, or seeking to in-
duce any of its employees to withdraw from membership in the labor
organization by solicitation or promises of benefit, or threatening to
deny any of its employees privileges previously enjoyed by them for
the purpose of discouraging membership in a labor organization."
Paragraph 1(c) is renumbered paragraph 1(d) and the following
is inserted immediately after paragraph 1(b) :
"(c) Maintaining and enforcing rules prohibiting employees from
engaging in solicitation on company premises during their nonwork-
ing time in connection with their concerted activities."
The first indented paragraph of the Appendix is amended to read
as follows :
IVE WILL NOT coercively interrogate our employees regarding
their membership in, or activities on behalf of, International As-
sociation of Machinists, AFL-CIO, or any other labor organiza-
tion, or take any affirmative action to determine which of our
employees are or are not members of any labor organization, or
seek to induce any of our employees to withdraw from member-
ship in the above-named, or any other labor organization, by so-
licitation or promises of benefit, or threaten to deny them privi-
leges previously enjoyed by them for the purpose of discouraging
membership in a labor organization.
The Appendix is further amended by inserting after the first in-
dented paragraph, the following paragraphs :
WE WILL NOT maintain or enforce any rule prohibiting em-
ployees from engaging in solicitation on company premises dur-
ing their nonworking time in connection with any of their con-
certed activities.
2In concluding that Respondent was not motivated by a good-faith doubt of the Union's
majority when it refused to bargain, we do not rely, as the Trial Examiner did, In part,
upon Respondent's invocation of a longstanding rule against solicitation.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist International
Association of Machinists, 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, or to refrain from any or all such activities.
The last paragraph of the Appendix is amended to read :
"All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization."
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.
Upon a charge duly filed on January 31, 1964, by International Association of
Machinists , AFL-CIO, herein called the Union , the General Counsel of the Na-
tional Labor Relations Board , on behalf of the Board , by the Regional Director for
Region 26 , on March 27, 1964 , issued a complaint and notice of hearing , the com-
plaint alleging that Jas. H. Matthews & Co., Respondent herein , had engaged in and;
is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and
(5) and 2(6) and (7) of the Act. On March 31, 1964, the Respondent filed an.
answer to the complaint and on April 20, 1964, filed an amendment to the answer.
The answer, as amended , effectively denies the violations of the Act as alleged in.
the complaint and sets up certain affirmative defenses.
The case came on to be heard before Trial Examiner Arthur E. Reyman at
Searcy, Arkansas, on April 22 and was closed on April 24, 1964. At the hearing,
the General Counsel and the Respondent were represented by counsel, and the.
Charging Party, the Union, was represented by a Grand Lodge representative. Each
party was afforded full opportunity to call , examine and cross-examine witnesses, to
present evidence relevant and material to the issues of the case, to submit proposed'
findings and conclusions , to argue orally upon the record, and to file briefs. Briefs.
have been submitted on behalf of the General Counsel and the Respondent, and
have been carefully considered . At the hearing, certain amendments to the com-
plaint and corresponding amendments to the answer , as amended , were allowed.
Upon the entire record, and from my observation of the witnesses , I make the.
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now and has been at all times material herein , a Pennsylvania cor-
poration operating a plant at Searcy , Arkansas , where it is engaged in the manu-
facture of bronze tablets and plaques.
During the 12-month period immediately preceding the issuance of the com-
plaint , Respondent , in the course and conduct of its business operations, purchased.
and received at its Searcy, Arkansas , plant , materials and supplies valued in excess
of $50 ,000 directly from points outside the State of Arkansas . During this same-
period of time, it manufactured , sold, and shipped from its Searcy, Arkansas, plant
finished products valued in excess of $50 ,000 directly to points outside the State of;
Arkansas.
Respondent is now and has been at all times material herein , an employer en,
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
JAS. H. MATTHEWS & CO.
IIi. THE UNFAIR LABOR PRACTICES
165
The Pleadings
At the outset, it seems expedient to summarize the allegations of the complaint as
amended at the hearing and the defense thereto set up by the Respondent. Ques-
tions of violation of Section 8(a)(5) and derivative violations of Section 8(a)(1),
and other violations of Section 8(a)(1), are involved.
The complaint, as amended, asserts that all production and maintenance em-
ployees of the Respondent at its Searcy plant, excluding office clerical employees,
guards, and supervisors as defined in the Act, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
This the Respondent does not deny, but in admitting it, says that in making such
admission Respondent does not bind itself as to the inclusion or exclusion of any
particular department, section, or individual. The General Counsel alleges that at
all times since January 11, 1964,' the Union has been designated by a majority and
has been and is the exclusive representative for the purposes of collective bargaining
of its employees in the described unit. The Respondent disclaims sufficient knowl-
edge and therefore denies these allegations, and says that it on January 11, and at
all times thereafter, had reasonable cause to doubt the Union represented its employ-
ees and therefore was not then, and is not now, under a duty to recognize or bar-
gain with the Union. Further answering, the Respondent says that if the Union ob-
tained a sufficient number of authorization cards from Respondent's employees,
such cards were obtained by misrepresentation on the part of the Union and its
agents in that employees were told that by signing such cards they were merely
registering attendance at a union meeting and/or to enable the Union to bring about
an NLRB supervised election at the plant; that numerous employees signed cards
as a result of such misrepresentation and none of these employees understood they
were authorizing the Union to represent them; and in view of such misrepresenta-
tion the Union did not in fact represent Respondent's employees on January 11, or
at any time pertinent to the complaint. In respect of allegations of the complaint
setting out a continuing request of the Union to bargain and the continuing refusal
,of the Respondent so to do, the Respondent reaffirms its contention that as a matter
of law, the Union's majority status should be resolved by an election supervised by
the Board.
The independent violations of Section 8(a)(1), denied by the Respondent, are
that the Respondent, through responsible agents, threatened employees with eco-
nomic reprisals, withdrawal of normal promotions and raises, discontinuance of a
group insurance plan, discontinuance of a profit-sharing plan, and cancellation of
proposed plant expansion, if they became or remained members of the Union, or
gave any support or assistance to it; surveillance of a meeting place, meeting and
union activities of its employees; solicited employees to withdraw from the Union;
and since August 1, 1963, has maintained in effect a rule prohibiting employees
from soliciting on company property without permission!
The Union Organizing Effort and the Company's Refusal
of Immediate Recognition
T. J. Underwood, a coloring department employee since September 1961, testified
that after he and some other employees who were interested in union organization
had discussed how to go about it, he communicated with Jim Rue, representative
of the Union at another location; that Rue met him and employee Joseph W. Shafer,
and after discussion Rue set up a meeting with Grand Lodge Representative W. C.
Harris for January 6, 1964, at Richard Anderson's Truck Stop on Highway No. 67,
near Searcy.
Present at the January 6 meeting were Harris, Rue, Rue' s assistant , Eddie Daven-
port, and 25 employees of the Respondent. Harris addressed the meeting and ex-
plained how the Union could help the employees, and among remarks made, said,
"now gentlemen, if you people are interested in the Union and if you want a union,
I'm here to help you, but if you are going to turn weak-kneed and when the pres-
sure is put on you, why, it is no use, and you are wasting my time and yours."
1 Unless otherwl e specifically noted, all dates hereinafter mentioned are for the year 1964
"- Respondent issues to each employee at time of hire an Employees Handbook of Jas H
Matthews & Co, which provides that "Violation of any of the following rules of employee
conduct iti eautie for Prompt dismissal or other disciplinary action " Rule 15 reads "solicit-
ing on company property wilhunt permission "
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Underwood said that Harris left the meeting then, and in his absence Rue told the
meeting that "if you are interested when Mr. Harris brings back the cards you sign
them and if you are not interested, if you are going to weaken under pressure, there
is no use in your signing them." Regarding the signing of the authorization cards,
Underwood further testified:
. Mr. Harris came back in and read over the cards.' At that time he opened
the floor and somebody asked him if that meant a vote. He told them no, it
didn't mean no vote. Somebody asked how we could get representation and
he said "there is two or three different ways you can go about getting repre-
sentation," said , "you can write the Company a letter and ask them to negoti-
ate with you or you can have an election," and I think that was about the end
of it. Then most of the guys started signing the cards, and after the meeting was
closed and they filed out to the side. As they would go out the door I was
sitting there with Mr. Harris and they would put the cards on the table, and
there's where I witnessed the cards.
Harris corroborated the testimony of Underwood in all material respects.
On Friday January 10, at approximately 4 p.m., a second meeting at Anderson's
Truck Stop was held among the employees where the Union was further discussed.
During and after the meeting, and as the employees were leaving the premises, Plant
Superintendent Morton, Office Manager Russell, and Foreman James Landis were
present in the main part of the restaurant . The implications of the presence of
these supervisors at the truck stop in the main dining room, while the Union meet-
ing was being conducted in the private dining room, is hereinafter discussed.
There is in evidence, by stipulation, a list of 72 names appearing on the payroll
of January 11, and employed as of January 13. The exhibit shows the clock
number, name, and job position of each individual. The stipulation is to the ef-
fect that these employees constitute the proposed bargaining unit except that the Gen-
eral Counsel contends, contrary to the Respondent, that four men listed-Derrell
M. Rongey, Charles Osborne, Larry Harmon, and Kenneth Greer-are supervisors,
and therefore not to be included within the unit. Counsel further stipulated that if
any one of these individuals fall in the supervisory category, then they all do.
Underwood identified 19 cards as being signed by individual employees and wit-
nessed by him except for his card at this January 6 meeting, and then handed by
him to Harris. Harris witnessed Underwood's card. Two employees (Matthews
and Glen Wortham) who were present at the meeting handed him signed cards the
following morning. They are included in the count of 19. Employee Shafer testi-
fied that he signed a card at this meeting, as did employees Gayler, McKinney,
Stephenson, and Rhodes. McKinney solicited and obtained the signature of em-
ployee Murdaugh. Thirteen other employees identified cards as signed by them
variously on January 6. 7, 8, and 11. Thus, on January 11, the Union held 38
authorization cards.
Employee Howard White testified that he signed a card to help employees to get
a vote. He said that if there had been a vote, and the Union was successful, he
would have quit his job. He signed the card at the home of employee Shafer in
the presence of Underwood. He testified they told him that the reason they wanted
him to sign was "to bring the Union in for a vote." White cannot read. He testi-
fied that the card was not read to him.
Employee Albert Simpson attended the January 6 or 13 meeting. According to
him, the only reason given to him by Grand Lodge Representative Harris at the
8 The form of blank card rend'
Authorization for Representative
I, the undersigned employee of -------------------------- Clock No ----------
City ------------- Dept• -------------
hereby authorize the International Association of Machinists or any District or Local
Lodge thereof to represent me for purposes of Collective Bargaining and, in my behalf,
to negotiate and conclude all agreements as to hours of labor, wages and other con-
ditions of employment. The full power and authority to act for the undersigned as
described herein supersedes any power or authority heretofore given to any person or
organization to represent me
(Witness) (Signature of Employee)
Date
Please Print Name
[Union Label]
JAS. H. MATTHEWS & CO. 167
time was "He just said that if we signed the card we could get a vote in the plant,
if they had a majority." Simpson did not recall whether Harris had read the card
to the whole group.
Employee LeRoy Wick testified that he attended a union meeting and heard
Harris state "that if we signed these cards that they were for a vote, for the per-
sonnel of the plant to be able to vote for or against the Union."
Employee David Waller said that Simpson, at the plant, asked him to sign a card,
telling him that "it was just to get them down there, so they could bring it to a
vote."
Employee W. L. Hester testified that he attended a meeting, signed a card, and
heard Harris say the purpose of signing a card was "to bring about a vote within
the Company."
Employee Carl R. Cook wrote an undated note, as follows:
I do not want to be a member in the I.A. of M. Union and I have signed a
card. I would like to have the card sent back to me.
I am working for Jas. H. Matthews Co. at Searcy.
He said he gave the note to someone in the plant to mail for him, he did not re-
member who. The envelope, postmarked Searcy, January 22, 1964, addressed by
another's hand, was sent cei tified mail, return receipt requested to Cook's address, to
Harris. Cook said that Gayler asked him to sign the card, and that "I took it and
was reading it, and he said the purpose of the card, to begin with, was to get the
Union in for a vote only."
Under the date of January 11, Harris, on behalf of the Union, notified the Re-
spondent, in writing, that the Union had been requested "by your employees" to
represent them in collective bargaining ; requested a meeting to "discuss , negotiate,
and enter into agreement with us the terms and conditions of employment" of em-
ployees in a described unit; suggesting dates or requesting alternative dates for a
meeting "for the purpose of establishing our showing of representative of your em-
ployees." A preference for "the selection of a neutral party to be present and
check our representation request against your payroll" was expressed.
On January 14, the Respondent by its office manager, James E. Russell, acknowl-
edged Harris' letter and said:
Please be advised that we will recognize and bargain with your union, in the
event your union is certified by the National Labor Relations Board as the
exclusive bargaining representative for our production and maintenance em-
ployees, in an appropriate unit at our Searcy, Arkansas plant, after an election
conducted by the National Labor Relations Board by secret ballot.
By a letter to the Respondent dated February 3, Harris stated he was "ready and
willing to prove majority status," and further stated a continuing demand for recog-
nition and bargaining. This letter was answered by counsel for the Respondent on
February 13, which reiterated that "The Company . will not recognize and
bargain with your Union" unless certified by the Board after an election conducted
by the Board, and further:
We reaffirm the Company's position . . . since the Company has reasonable
doubt that your union represents a majority of its production and maintenance
employees. We feel that the most satisfactory method of resolving the ques-
tion of your Union's majority status is through an election by secret ballot
supervised by the National Labor Relations Board. In this manner we feel
that the overall purposes of the National Labor Relations Act will be satisfied,
and the employees will be allowed to make their choice accordingly.
If the cards of White, Simpson, Wick, Waller, and Hester are disregarded, the
number of valid cards is reduced to 32 as of January 11. Then, if leadmen D. M.
Rongey, C. Osborne, L. Harmon, and J. K. Greer are to be considered as non-
supervisors and therefore within the unit, and none of these men having signed a
card, the facts lend color to the Respondent's claim that it lawfully could refuse,
because of good-faith doubt, to accord recognition to the Union.
Company and Searcy Plant Organization
James H. Matthews & Co., the Respondent, is comprised of three divisions-the
industrial marking products division, box die division, and the bronze division. In
the bronze division are three plants, one located in Minton, Ontario, Canada, an-
other in Pittsburgh, Pennsylvania, and the one located at Searcy, Arkansas.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roy Randles, stationed in Pittsburgh, is general superintendent of the bronze
plants of the Company at its three locations. At Searcy, William M. Morton is
plant superintendent. Under him, James R. Landis is general foreman of factory
operations. Morton personally supervises the foundry area. Under Morton, other
Than Landis, is E. L. McCullock who directs maintenance. James E Russell is
office manager and as such is in charge of the office, directs the office and the
purchasing, and is in charge of personnel in his department. Morton reports di-
rectly to Randles, as does Russell.
Some 35 employees are employed in the foundry and 37 employees work in the
factory.
In the factory there is a pattern setup department, a tooling department, a color-
ing department, and a shipping department. In the pattern setup department, 12
employees are headed by a leadman, Derrell M. Rongey. The tooling department
has a leadman, Charles Osborne. The leadman in the coloring department is Larry
Harmon. Kenneth Greer is leadman in the shipping department. Other than the
leadmen, 11 employees are in the tooling department, 6 in the coloring department,
and 5 in the shipping department.
The work layout is made upon determination of a daily work schedule based on
the orders received each day. After receipt of orders and after production plan-
ning, a pattern is set up in that department, where the appropriate name that goes
on the design called for by the order is selected, and letters glued on by a process
of shellac and wax, according to proper process. After the letters are placed on
the pattern, the pattern is forwarded to the foundry and the order for that pattern,
or memorial, is forwarded to the rough inspection table where such order is filed,
together with others in alphabetical order. When the casting is received, usually
the following day, it is forwarded to the tooling department where bosses are drilled
on the back of the memorial for the insertion of lugs. After the drilling of the
back and tape made for canisters, the memorial is goosenecked in a vase opening
and all imperfections are removed. The memorial then is cleaned by a method
of sandblasting, it then goes through an automatic coloring booth where the
memorial is colored; and the memorial is then highlighted by a process of buffing
with certain compounds used to highlight the letters and border ornamentation.
Another automatic operation then occurs when a memorial is treated for preheat
and protective finish. It then is baked and forwarded to final inspection where the
memorial is inspected and then placed in a carton for shipment.
Status of Leadmen as Supervisors
The questions as to whether factory leadmen are supervisors must be determined
in order to find their proper place either in or out of the bargaining unit; and
whether certain Section 8(a)(1) alleged violations are attributable to one or more
leadmen and therefore binding on the Respondent.
According to Landis, he is the one completely responsible for the laying out or
assignment of work according to orders and work schedules. The leadmen under
'him are more highly skilled and receive higher hourly rates of pay than other em-
ployees in their respective factory departments, although the rates of pay of other
employees may vary according to their respective skills and length of service. A
leadman does not have the right to hire or fire, nor does he have the power to
effectively recommend hiring or firing. He oversees the work done in his depart-
ment according to specific instructions given to him by Landis. Certain instances
were cited where a leadman, under prior authority delegated to him by Landis, has
and may shift employees from one job to another on a day-to-day basis or perhaps
during the course of a week, depending on work schedules. In this connection,
Landis testified:
Q. (By Mr. CLARK.) All right, sir. Take Charles Osborne, for example,
does he change employees from one job to another during the day?
A. He could. On several occasions, like I stated, I have told him that he
would have a part day in memorials and the rest of the day he would have to
run vases. Then, in a case like this, naturally, when he ran out of memorials,
the fellows that I have told him to put on vases will start running memorials or
the fellows that I have told him to put on memorials will start running vases.
Landis further testified, in response to a question as to whether he knew of any
occasion that Osborne had given anyone time off on his own accord, that he knew
that there had been occasions. when he had told the group leaders (leadmen) that
JAS. H. MATTHEWS & CO. 169
they were able to give a man time off on this particular day because production was
slow and that at other times leadmen , with his permission , had let men off to take
time to hunt or to bank or perhaps for other personal reasons.
On occasion , men employed in the factory may be assigned to work in the
foundry. When this occurs, Landis said , he first is told by Morton that the latter
needs extra hands, then "I go to these departments and tell the men to give me
someone . . . I tell the supervisors to give me five or six men and which ones to
give me." He also is the one who orders their return to their original assignment
after work in the foundry. In addition to the instructions issued by him to the
leadmen , Landis also issues instructions directly to men in the several departments
under his direct supervision . He estimated that he spent 90 percent of his time in
his departments of the factory throughout a day.
Charles Osborne described his job as that of leadman in the tooling department;
that there were 9 employees employed in January and 11 in April in that depart-
ment ; and described the functions of his department:
First of all, there are drill presses , as the work comes through it goes through
drill presses , and there is a gooseneck table, and then there is chasing tables
and a sandblaster . That is the last machine in the department.
Osborne testified that he spent about 75 percent of his time running the sandblasting
machine and the other 25 percent he estimated was in special work such as stamp-
ing. He said he did not have the authority to hire anybody or fire anybody in that
department or, so far as he knew , to effectively recommend the hiring and firing of
anybody because that situation had never occurred . He said further that Landis
was his immediate superior , was the one who had authority to give individuals time
off in his department , and that he had never disciplined an employee.
Larry Harmon , in the coloring department , leads seven men. He described the
function of his department as brassing , coloring , lacquering and buffing, and mixing
protective finish . The coloring machine is used to color castings ; a pretreat ma-
chine is used to apply protective finish. Harmon described , briefly, the operations
in that department:
Well, it comes out of the sandblaster , which is the tooling department, and it
runs from there into the coloring machine , a coloring machine, on a conveyor,
and it goes from there on a conveyor around the buffing station and then into
the protective finish booth , later it goes on a conveyor from there to the ovens
where they are baked , where the castings are baked , where the protective finish
is baked on the molds.`
Harmon said he did not have the authority to transfer men from one work station
to another without consulting with Landis ; that he has no authority to hire or fire;
that he cannot grant time off to other employees without the consent of Landis or
Morton.
Kenneth Greer, referred to as a leadman in the pleadings and in the stipulation
mentioned above, is in charge of the shipping department at the Searcy plant. Ac-
cording to his testimony he has been employed in the shipping department for about
2 years together with four other employees , the department being engaged in pack-
aging and routing completed orders for shipment . He testified that he received his
orders from Landis , that he did not assign the other employees directly to the work
performed by them but did assign them upon instruction from Landis . He said
that on occasion when another man employed in the shipping department received
instructions from him to perform work in the factory or in the foundry , he was so
' Landis, estimating the time spent by Harmon performing the same duties as the other
men in his department perform, said it amounted to about 75 percent; and the other part
of his time would be mixing topcoat and materials for the machines . Landis described
the duties of Harmon, some of the same duties being performed by other men in his de-
partment , as follows:
He mixes color for the coloring of our plaques as far as keeping machines full of
lacquer and top coating and pre-treatment , and he runs memorials through the auto-
matic coloring machine, through the pre-treat machines, through the coloring ma-
chines and through the oven, and places them ready for final inspection on the stor-
age rack, and he colors our chains and our P B screws and the accessories for the
memorial and when a Job is done there , then lie will go on the buffing table and buff
memorials with the other men.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructed by Landis or by Morton. He has the use of a desk in a segregated en-
closure, frequently mentioned in the testimony of several witnesses, the desk being
used by many persons other than Greer'
Further, in support of the contention of the General Counsel that Rongey, Os-
borne, Harmon, and Greer are supervisors, is testimony of Underwood who said
that when he first was employed he was interviewed by Morton, who took him to
where Harmon was working and introduced Harmon as his supervisor. It is em-
phasized that Morton took Underwood directly to Harmon and not to Landis. Eu-
gene Rhodes testified that Greer was made a supervisor after about 6 months' em-
ployment, at which time Landis informed all the shipping department employees
that Greer "would be in charge of the shipping department." R. C. Quattlebaum,
David Waller, Lonnie English, and Jerry Feren each testified that either Rongey,
Osborne, Harmon, or Greer was his supervisor. The General Counsel says that
this "ostensible authority," although not alone sufficient to establish the supervisory
authority and status of these four employees, is indicative of supervisory status, and
that it should be considered in determining the status of the four employees in
question.
To support the contention that the four men referred to exercise the use of in-
dependent judgment in the direction of the work of employees in their several de-
partments, the General Counsel relies on the testimony of Underwood that he did
any one of the several jobs within the coloring department; that his daily work was
directed by Harmon; that Harmon told him what to do every day, and whenever
he was transferred from one job to another, Harmon always was the one who
transferred him. Reference is also made to the testimony of Underwood that on
occasion he had been transferred temporarily to do work in other departments and
that Harmon always was the one who transferred and directed him.
Underwood testified that Harmon's main duties - are to inspect the work of the
employees in his department and to walk around the conveyers and to watch the
work of employees therein. He also said that Harmon, on several occasions, criti-
cized his work when not properly performed; that Harmon had told him he would
change his job if he could not perform the work right, and that Harmon also has
criticized the work of other employees within the department. * Rhodes said that
Greer generally worked on the line with the employees in his department when the
employees get behind or are rushed, but, if the department is not too busy, or the
employees are not in too big a-rush, Greer will "generally just stand around, inspect,
and watch them work." ' - '
Rhodes testified that the daily work of the employees in the shipping department
was directed by Greer, that Greer assigned employees daily to their various jobs,
after Landis first had assigned the jobs; but that since Greer was made supervisor
he was always the one who effectuated the assignment of an employee in the ship-
ping department to do work in another, department. _ In support of the same argu-
. r Landis was more specific than Greer in describing the latter's duties. Landis de-
scribed him as a routing clerk, routing orders for shipment. Landis said that was the
main function assumed by Greer, other than helping other employees at their job station
and filling in for an employee who might be assigned- to, a different job for a day. In
answer to a question as to the function of the shipping department, Landis testified: ,
First of all, our inspector releases the memorial as a good casting and we have
one employee that gets a box, the appropriate size box for the memorial, and puts
the appropriate lug in the box The memorial is then placed on top of the box with
the lugs in it. The box is folded. The banding operator bands the material in
the box. He bands the box to the memorial. Then, all our orders have stencil num-
bers on them, customer account numbers, we call them, and we have stencils running
from 1 through 3,700 and in this series one of these stencils will match the order that
goes with that memorial. The stencil operator stencils the box to the destination
that it's going. He writes the weight on the order, how much the casting weighs,
and puts our order number and stencil number on the end of the box. Then the
order is taken in.
Landis further testified that employee Rhodes is in charge of the banding operation,
LeRoy Wick is, in'charge of, boxes, and John D. Laden is in charge of the stencil rack.
According to Landis, Greer, at times, filled in or does fill in each one of these jobs. How-
ever, as noted, Landis testified that the primary duty of Greer is to route an order
according to the design and weight schedule set up for Greer by Landis for the shipping
-department, according to weights, and whether it would go by truck or railway express.
The desk referred to as being Greer's office is said by Landis to be used for a lunch
counter, for the segregating of orders, for storage, for the placing of timecards, and so
on-"it is more or less a storage desk."
JAS. H. MATTHEWS & CO. 171
_ment, it is pointed out that Quattlebaum, Waller, English, and Feren each testified
that his supervisor would assign him daily work and if he was transferred from job
to job his supervisor would make the assignment.
The testimony of employee Carlos Purkiss would indicate that Harmon, contrary
to his testimony, did have the authority to effectively recommend the discipline of
employees. Purkiss, an employee in the coloring department, testified that Harmon
is his superior; that on one particular occasion Harmon had criticized his work and
told him that he was not doing as much work as another man in the department and
.that he (Purkiss) resented the criticism, whereupon Harmon took him into Landis'
office and told Landis that Purkiss had been insubordinate, then Landis issued Pur-
kiss a disciplinary slip ("Notice of disciplinary action"), and told Purkiss that two
or three of those slips would result in his immediate discharge. Underwood testi-
fied that be saw and heard Harmon reprimand Purkiss on this particular occasion.
Underwood and Rhodes each testified that he, on several occasions in the past,
had requested and received permission from Harmon or from Greer to leave early
in order to attend to personal business, and in each case permission was granted
without either Harmon or Greer consulting with Landis.
As proof of the supervisory status of Rongey, Osborne, Harmon, and Greer,
,evidence was adduced showing that meetings were conducted by Landis, with these
-four men present, at frequent intervals in the plant superintendent's office and on
-occasion Plant Superintendent Morton also attended. According to Landis, it is
usual practice for him to meet with the leadmen either in the morning or on a
previous afternoon to inform them that he has orders for a certain number of
.castings coming out of the foundry made on the previous day and that there will
be a full day's run on castings, or, that "he will have to split his day and run part
of the day in casting" and the rest of the day on other work. After explanation of
the work to be done as laid out by Landis, according to his testimony, the leadman
,places the work to be done according to the information furnished to them by
Landis at the so-called production meeting.
Uncontradicted upon the record is the fact that during the summer of 1963
Landis, together with these four men, went to Pittsburgh at the expense of the
-Company to afford them special training. According to the testimony of Under-
wood, immediately before this trip was to take place Morton told an employee who
bad asked if he could make the trip that it was only for supervisors. Accordingly,
it is asserted by the General Counsel the production meetings, together with the
training given to the individuals, demonstrates their supervisory status.
Rongey, Osborne, and Harmon are paid at the rate of $1.90 an hour and Greer is
paid at the rate of $1.80 per hour. Next highest paid employee in Rongey's depart-
ment receives-$1.50; the next highest paid employee in Osborne's department makes
$1.70 an hour and the next highest paid employee in Harmon's department makes
approximately $1.70 an hour. The next highest paid employee in Greer's depart-
ment makes $1.69 an hour. These four men have special parking privileges with
the high ranking supervisors and do not park on the same lot as other lower paid
.employees do. Finally, it is contended on behalf of the, General Counsel, if
Rongey, Osborne, Harmon, and Greer are not found to be supervisors, there would
be only two supervisors over 72 production workers, a disproportionate ratio.
Darrell M. Rongey, leadman in the setup department, did not testify at the hearing.
It seems to me it has been conclusively demonstrated that the four employees in
question do in fact fall under criteria which, when applied affirmatively, shows
their supervisory status, namely-their ostensible authority as recognized by other
employees; use of independent judgment in the 'direction of work of other employ-
ees; in one case the effective recommendation for discipline of employee Purkiss;
the use of authority to grant time off; and the comparatively substantial pay differ-
ential between each leadman and the other employees in his department . Further,
a disproportion of supervisors to supervised has been established, should only Morton
and Landis be accepted as supervisors over 72 men in four departments who en-
gage in the production work above described. The attendance of the leadmen at
regular production meetings is also significant. The exercise of the authority vested
in Respondent's leadmen seems to me to be not of a merely routine nature, but does
require the use of independent judgment so as to mean they are supervisors within
the meaning of Section 2(11) of the Act. Their exercise of ^ authority is not
limited to mere ministerial acts. I therefore find Harmon, Osborne, Greer, and
Rongey to be supervisors. Minnotte Manufacturing Corporation, 131 NLRB 684,
688; The Bama Company, 145 NLRB 1141; Lyon, Incorporated, 145 NLRB 54;
Research Designing Service, Incorporated, 141 NLRB 211, 213; Victory Grocery
Company, a Division of E. I. Keefe Company, 129 NLRB 1415, 1416; Monarch
Rubber Company Incorporated, 129 NLRB 482, 483.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interrogation ; Incidental Threats
During the times covered by union organizational activity as described above, the
Respondent , through Division Superintendent Randles, Plant Superintendent Mor-
ton, Office Manager Russell , and leadman Harmon , talked to many employees con-
cerning their interest in the Union . These conversations , at various times and
places, indicate an apparent intent to stay within the bounds of permissible inquiry,
but in full effect constitute interference at least , and real intent to coerce and
intimidate employees in their concerted activities for the purpose of collective
bargaining.
Larry Harmon, one of the leadmen , is alleged to have interrogated employees on
January 7 and 28; William Morton , plant superintendent , is said to have interro-
gated employees on January 8 and 17; Roy Randles , general superintendent of the
Company's bronze division , is said to have engaged in interrogation on January 20,
and James Russell , the office manager, on January 28.
Threats of economic reprisals made directly to employees are said to have been
made by Randles on January 20 , Morton on February 6, Harmon on January 7, 9,
and 28 , Osborne on January 9, and Russell on January 8.
According to employee T. J. Underwood , Harmon, on the morning of January 7,
the day after the first union meeting, approached Underwood while the latter was
at work and asked , "How did the meeting go last night?"; and again, on the same
day, Harmon spoke to Underwood and asked , "T. J., who is pushing the Union?"
Underwood said that among other things Harmon said to him were, "T . J., they
must be paying you good to push the .Union , and I said, like hell ; they ain 't paying
me a damn thing . He said , you are not that much of a crusader on your own."
Employee Cullum testified he attended the first union meeting on January 6 and on
the following morning, while he was having a soft drink , Morton asked him if he
had been to a meeting the night before. Cullum said that he replied in the affirma-
tive and that Morton replied , "Well, you've got a right to go to any meeting that
you want to."
Gayler, an employee , testified that about January 8, while he was at a soft drink
machine, he was approached by Morton who asked him what he thought about the
Union . Gayler replied that he thought it would "help the working class of people."
.Employee Shafer testified that during the month of January , Morton asked him
what he thought he would gain by or through the Union and that he , Shafer, re-
plied , "Well, we would have more security if we could get a contract put on paper,
where it wouldn't be by word . . " Shafer also testified that about the same
time approximately January 15, Harmon spoke to him at the drinking fountain and
remarked, "If we get a union in here, we won't get this vase department put in our
plant." Shortly thereafter , according to Shafer , Randles approached him and asked
him what he thought he would gain "by getting a union in here"; that Randles fur-
ther said , "I do not know whether I can talk to you or not ," and that he (Shafer)
replied , "Well, I'm standing here, you just go ahead and talk all you want to." And
he (Randles ) said "I've been planning on sending a T-lug machine down here, but
if we get the Union in here , there isn't any need in sending it down here , because
if you guys go on a strike , I wouldn 't have any place to make my T-lugs and fur-
nish the other plants ," and then, according to Shafer , Randles said , "I wish you
would reconsider that about the Union ," to which Shafer replied , "Well, I've already
got my mind made up." Randles again , Shafer said , repeated his request that "You
would reconsider it again now , about the Union ." And that Shafer replied, "Well,
I've already got my mind made up."
Employee McKinney said that he was approached by Randles around the middle
of January at his work station in the foundry and was asked how he felt about the
Union . During the course of this conversation , McKinney said that Randles re-
marked, "Well , you ought to make sure that's what you want before you are for
it," to which Shafer said "Yes" and Randles then said , "Well, that is a person's
privilege."
Eugene Rhodes, an employee in the shipping department , said that he, while at
work, was approached by Randles and they engaged in a conversation for about an
hour; that during that conversation the Union was discussed and Randles asked
him how he felt about the Union ; that he told Randles that he was for the Union;
that Randles admonished him that he , Randles, was not asking him to tell him
anything about the Union but did ask him the reason for his wanting a union "and
I told him some of those reasons." Rhodes further testified that sometime during
the last part of January on the day after a union meeting , Russell approached him
while he was at work and asked him if he had learned anything at the union meet-
ing the night before; Rhodes said . he told Russell that he had not learned anything
JAS. H. MATTHEWS & CO. 173
that he did not know before; that Russell asked him what it was he had known
before and further asked if the Union had guaranteed him more money or seniority
rights.
With respect to further interrogation by Randles, Underwood testified that when
Randles was on one of his visits to the plant about January 20, Randles talked to
him at his work station or near there for about 2 hours. Underwood testified:
He came up to me'and said, T. J., how are you, and shook hands with me and
says, I hear there's a little trouble going on here. I said, yes, sir, there is a
little. So, we walked over to out of the area, so we could smoke and he said,
let's go over here, where we can smoke. So, we went over there, and he said
you might sue my pants off, and I didn't say anything and he said, if I could
just find out or get somebody to talk to me and find out what kind of trouble
is going on, I could get to the bottom of this, but everybody seems afraid to
talk to me,-and he said, if I could just get anybody, even if it meant taking to
get them . . . even if I had to get them in a car and take them 40 or 50
miles....
General Superintendent Randles arrived in Searcy on or about January 16: He
had made a previous visit in November 1963. He said that the purpose of that
trip was for the purpose of increasing the wages of the employees, distributing that
portion of profits under the profit-sharing plan to the employees, and to consider or
grant vacation benefits, and a military service bonus. All these were announced
during the course of his November visit. At that time, according to his custom, he
interviewed or talked or visited with as many employees in the plant as he could
individually and then called them, by department, into his office and distributed the
profit-sharing checks to them. In speaking to the employees individually, he in-
quired as to how they were getting along, whether they had any complaints, and
discussed plant activities in general terms.
Randles testified that his visit in January, following the November visit, was be-
cause he had been advised while he was in Portland, Oregon, of certain develop-
ments in the Searcy plant and so scheduled his return trip from Portland for a stop
at Searcy before returning to his Pittsburgh office. While at Portland, he said, he
had received a telephone call from Morton, who read to him the letter received
from the Union asking for recognition. Randles then communicated with the
personnel department at Pittsburgh, and subsequently arrived at Searcy about Janu-
ary 15 or 16. Upon his arrival at Searcy, he consulted with Morton and Russell,
and then, "in my usual procedure" he started talking to employees individually in
the plant to determine what he described as "the trouble." He received several
complaints, including, for example, the smoke fumes in the foundry; answered
questions concerning the Arkansas right-to-work law; and, according to him, was
told about the union activity then going on in the plant. In answer to a question
on direct examination , whether he had come to any conclusion as to whether the
employees were for or against union organization , he replied:
I found both. The people that I talked to, I believe the majority was against
it, I believe the majority was against it, because it was very outspoken. It was
no secret. An employee would tell you, "I don't want to have anything to do
with it," or "I might vote for the Union but I won't pay dues," many remarks
like that.
He testified that there was a great deal of discussion about a union election, and
that he formed an opinion in his own mind that the employees were more against
union organization than they were for it.
The testimony of the witnesses, I believe, demonstrates that interrogation re-
ported by the several witnesses called by the General Counsel did in fact take place.
As shown, the testimony reflects, and is not firmly denied, that Underwood, Shafer,
Gayler, and McKinney were asked what they thought about the Union and that
there was considerable discussion in the plant concerning the activities of Under-
wood as a union organizer, such discussions being well known to the Company
either through interrogation by its representatives or from overhearing conversa-
tions or discussions among the employees while they were at work. Superintendent
Randles did not evade the fact that he talked to as many individuals as he could
during his January visit. The interrogation of Rhodes by Russell, and Russell's
further discussions with employees concerning the Union and the knowledge by him
of some of their views in regard thereto, is clearly stated on the record.
General Counsel points out, I believe correctly, that most of the interrogation of
employees by agents of Respondent occurred after the Respondent had refused to
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognize the Union and, further , it was never explained to the employees that the
purpose of the interrogation was for a basis of determining whether or not the
Union actually did represent a majority of the employees in the Searcy plant.'
The Respondent takes the position that the questioning of employees , as reflected,
by the record, adds up to the fact that Randles was attempting to determine whether
the Union in fact represented a majority of Respondent 's employees ; that this type
of interrogation is permissible under the circumstances , and relies on Briggs IGA
Foodliner, 146 NLRB 443, and Blue Flash Express, Inc., 109 NLRB 591. Here,
however, the circumstances are different . In Briggs IGA Foodliner , the Board ex-
pressly found that
on the basis of all the evidence , particularly the facts that there is no,
dispute as to what the employees told Briggs about the circumstances of their
signing the cards , that the Respondent urged the Union to seek an election,
that the Respondent petitioned for an election when the Union failed to do so,
and that the Respondent committed no contemporaneous unfair labor prac-
tices and demonstrated no union animus , that the Respondent did have a.
good-faith doubt as to the Union 's representative status.
In Blue Flash Express, Inc., the Board , referring to the findings of the Trial Ex-
aminer in respect to "the demeanor of the witnesses ... to detract from their trust-
worthiness and that there was no inconsistency in the testimony of any witness
which would enable the Trial Examiner to determine who was telling the truth,"
held:
... we find nothing improper in the manner in which the Trial Examiner re-
solved this issue. The burden of proof is upon the General Counsel. When,
as in this case , the Trial Examiner is not persuaded by the testimony of the
General Counsel 's witnesses that threats and promises were made to them by
the Respondent , the General Counsel has failed to meet that burden of proof.
As an examination of the record discloses no other basis for reversing the
Trial Examiner , we fined that the allegation that the Respondent violated the
Act by making threats of reprisals or promises of benefit to its employees has
not been sustained.
In the instant case, opposite to the finding of the Trial Examiner in Blue Flash Ex-
press, I am persuaded by the testimony of the General Counsel's witnesses that
threats and promises were made to them in the manner described by them and at
the times mentioned by them, as reflected by the record herein . Blue Flash Express
is not diapositive of the instant case and the principles set forth therein , applicable
hereto, are opposed to the position of the Respondent . (109 NLRB 591, 593-595.)
The facts here reflect that the interrogations being contemporaneous or nearly
contemporaneous with threats , may reasonably be inferred to have tended to inter-
fere with the rights of employees under Section 7 of the Act and violative of Sec-
tion 8 (a)(1).
Underwood testified to several incidents which he interpreted to mean that the
Respondent was considering curtailing the proposed plant expansion should the
employees designate the Union as their representative . Underwood said that on
January 7, he was told by Harmon, "You had better drop it or it will mess you up
in your department" and a little later Harmon said , "If you don't drop it, it is go-
ing to mess you up in your department and you will have no more raises or pro-
motions, we won't have no more promotions or raises for you." Again, Underwood
said that Harmon approached him in the coloring department and told him that if
any man in that department "goes union" he (Harmon ) would make it difficult for
the employee.
On January 9, according to Underwood, Russell told him while he was at work
that plant expansion might be canceled . Underwood testified:
He came over to me to get me to sign a slip to get my pension plan, . I
was canceling mine, and he started and he said , T. J., I hope you know what
you're doing, and I said, I think I do, Rusty , and he said , well, I guess you
know, as of Monday morning, that this plant has ceased to grow and at that
time, Larry Harmon came up again and butted into the conversation and he
said, yes, and not only that, but you will lose all your insurance , profit-sharing,
9 Randles testified that he had heard rumors during the course of his inquiries that the
Union held from 14 to 26 authorization cards from employees . This statement, to me, is
indicative of a close inquiry from the 'employees themselves as to their interest in the
Union.
JAS. H. MATTHEWS & CO. 175
and all of your company benefits. He said, you see those stakes? You know
those stakes were back of the foundry and they were going to expand to those
and now they won't expand them. '
It will be recalled that Underwood testified to a conversation with Randles, a
part of which he interpreted to mean that Randles threatened to cancel plant expan-
sion because of union activity . According to Underwood , he was told by Randles
that the Company had intended to move a vase machine into the Searcy factory,
but since "all of this trouble has come up , he didn't think he would." The follow-
ing day, again according to Underwood , Randles told him that he had intended to
install a T-lug machine , that he "didn 't want to get his eggs all in one basket, . . .
Although the Union was not specifically mentioned in these conversations between
Underwood and Randles , Underwood thought , Randles clearly meant that the pro-
posed changes might not be made because of the entrance of the Union onto the
Searcy scene.
Employee Shafer testified to two conversations , one with Randles when Randles
told him he had been planning on sending a T-lug machine into the Searcy factory
"but if we got the Union in here there isn't any need in sending it down here, be-
cause if you guys go on strike, I wouldn't have any place to make my T-lugs and
furnish the other plants . . ." and asked Shafer to reconsider his decision to favor
the Union . Randles testified concerning the conversations reported to have been
between him and Underwood and Shafer and as nearly as I can determine he con-
ceded a discussion concerning the installation of a T -lug machine into the Searcy
plant ; said that part of the equipment was there when he arrived in January, the
other part being on order; denied that he mentioned putting all of his eggs into one
basket, but did concede that he told Underwood that a work stoppage at any one
plant would shut the other two plants down, especially if the T-lug operation in
Pittsburgh was transferred to Searcy . Randles freely conceded that he questioned
not only Underwood and Shafer concerning union activities, but also talked to other
employees about the Union.
Harmon conceded that he told Underwood that if he "didn 't quit messing around
with the Union" somebody might be discharged for huddling up in groups and
talking and slowing down production . Harmon said that everyone in the plant
knew that Underwood was for the Union and that a good many people joked with
him about it; that the statement made to Harmon in the form of a question as to
who was paying him for his union activities because he was not that much of a
crusader , was made in a joking manner; and Harmon did admit that he asked
Underwood how the meeting had gone the night before and also said , "You had
better drop this . . . or it will mess you up in your department ." Joking or not,
it is plainly apparent that suggestions were made to Underwood, Shafer, and other
employees that it might not go too well for them if they continued their interest in
union activities.
Another threat against union activity reported is an incident testified to by em-
ployee Stephenson , to the effect that in the first week of February , Morton told
him while he was at work:
He came back to my station where I was working and he had an insurance
check in his hand that I had filed for earlier and he showed me this insurance
check and he said, this is good insurance , isn't it, and I said, yes , it is, about
as good as I ever had , and he said , do you think the union can get you this
kind of insurance , and I said, I don't know about that, and I had a union but-
ton that they had given us to wear 2 or 3 days earlier and he put his hand on
this union button and flipped it and said fooling with the union is going to
cause you to lose that insurance.
It seems to me that the threat by Russell to cancel plant expansion, as related by
Underwood , and Harmon 's contemporaneous threat that company benefits might be
withdrawn is serious enough to warrant discounting of the company defense that
remarks concerning the threat of company expansion , the loss of the profit-sharing
plan and other benefits, and so on, was enough to indicate to the employees that,
joking or not , the Company was serious in passing along these implied or inferential
threats in the hope that it would discourage union activity . Although Randles
partly denied certain statements attributed to him, it is, as the General Counsel
contends , clear that he was the one who injected the subject of T-lugs, vases, work
stoppages , and plant expansion into the conversations admittedly held with a number
of the employees , including Underwood and Shafer , and admitted portions of the
conversations apparently not adversely affecting the Respondent. As to the con-
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versation between Morton and Stephenson where Morton is said to have mentioned
the insurance plan, Morton denies making the statements attributed to him by
Stephenson, and yet at the same time he does say that he approached Stephenson
and gave him the check. In regard to these various and several conversations, I
am inclined to, and do, credit the testimony of Underwood, Shafer, and Stephenson,
having in mind the testimony of Morton, Randles, Harmon, and Osborne, because
I think that the circumstances, and the explanations of the circumstances, as given
by the Respondent's witnesses are not in accord with the atmosphere at the time
these conversations took place. It seems to me much more likely that these con-
versations, initiated by representatives of the Respondent, were intended to, and
did, have the effect of demonstrating to the employees that the Respondent was op-
posed to their concerted activities on behalf of the Union and that if they continued
in such activities they might be penalized.
On behalf of the Respondent, it is argued that Underwood admitted that Randles
at no time actually questioned him about his union activities; and I am urged to
pay particular attention to the testimony of Randles explaining his practice to make
periodic trips to the various plants and that his trip in January was a scheduled
trip; that during his visits it is his custom to talk to all employees at their work
stations or wherever he meets them; that he reported his conversation with Under-
wood, although denying making any threats or promises; that that is true (in regard
to Shafer's testimony) that with respect to the T-lugs, Randles pointed out that
some of the machinery had already arrived in Searcy at the time of his January
visit; and that he told both of these employees to "consider all of the facts and vote
as they saw fit."
The question whether or not Randles, in his effort to determine the extent of
union organization in the Searcy plant, exceeded the bounds permitted by the Act, I
think must be resolved on the basis not only of Randles' purpose of inquiry, but on
the basis, too, of such other inferences as should be drawn from the remarks of
Morton and those of the leadmen. In whole context, I find that the interrogation
and the implied threats of removal of benefits were, and are, in violation of Section
8(a)(1) of the Act.
Surveillance
The union meeting held at Anderson's Truck Stop on Highway No. 67, near
Searcy, on January 10, has been referred to above and, it will be recalled that at
that meeting, employees of, the Respondent signed a number of Union authorization
cards after being addressed by Grand Lodge Representative Harris and others, and
that Underwood as a leader of the employee union movement, witnessed the signa-
tures on a number of cards signed there by employees. Russell, Morton, and
Landis, supervisors employed by the Respondent, were sitting outside in the main
part of the restaurant while the union meeting was being conducted in a separate
private dining room. These three men apparently were there all during the time of
the meeting and after the time the meeting ended.
Employees Underwood, Gayler, McKinney, Rhodes, Edwards, Wilson, and
Swain all testified that they observed the three supervisors at a table and that Rus-
sell had in his hand a clipboard, or some kind of paper, as the employees left the
dining room on their way out of the union meeting.
I have trouble reconciling the testimony of Morton, Russell, and Landis as to
how they happened to stop by Anderson's Truck Stop on a day which was, accord-
ing to Russell, "The first day that I had any idea that we were having any activity
at the plant, any union activity.... " According to Russell, he told Morton, on
Morton's suggestion , that they stop and have a drink, that he had a part of a
bottle of Canadian Club left in his truck and suggested that Morton accompany him
after work and they would have a drink or two, explaining that he and Morton usu-
ally go out once or twice a week to have a drink and on this particular evening
they first went out to a farm owned by Russell to feed a horse he had stabled there.
Morton said that the reason he happened to be at Anderson's was that immedi-
ately after work he and Russell, riding in a truck owned by the latter, did stop by
Russell's farm and fed Russell's horse; that they then left Russell's farm on their
way to the Elks Lodge on the same highway on which Anderson's Truck Stop is
located and stopped by Anderson's to get setups and there to have a drink. On
cross-examination the testimony of Morton is a" little bit different, in that he said
they went from the plant to feed the horse, and from there to the Elks Lodge, but
because the Elks Lodge was closed, they went on to Anderson's. Supplementing or
adding to the testimony of Morton on this point, Russell said that after feeding the
horse they took a back road toward the Elks Club and on the way decided to stop
at Anderson's to get their setups for their drinks.
JAS. H. MATTHEWS & CO. 177
Landis said that his reason for being present at Anderson 's Truck Stop was this:
Our Elks Lodge which I helped to get enforced into the county , we were being
evacuated from our home lodge. We used to be located at the Auto Auction
Lodge here on Highway 67 bypass , and we had been notified that we were to
be evacuated , and one of the members of the lodge had asked me to check on
the Red Barn , which I did , and I happened to see a truck that I knew. So, I
stopped and talked to Mr . Russell and Mr . Morton.
I further gather from the testimony of Landis that ordinarily he would not pass An-
derson 's Truck Stop when leaving the Searcy plant at the end of the day.
The covergence of the three top supervisors of the Searcy plant on this particular
day when the employees were most deeply interested in union organization , seems,
to say the least , more than fortuitous . It could be coincidence , but I doubt it.
To return to the subject of a so-called clipboard that Russell is supposed to have
had before him, he denied categorically that he had a clipboard with a paper on it,
anything resembling a clipboard such as a briefcase , or any other paper or document
near at hand when the employees came out of the back dining room on their way
out from the union meeting. He said the only thing he had with him was about a
half bottle of Canadian Club with the setups on the table . If he is to be credited,
I gain the impression that the bottle was kept somewhat out of sight from the top
of the table.
Russell and Morton denied categorically that Russell had either a clipboard or
paper before him. Richard Anderson , owner of the truck stop , was called as a
witness for the Respondent . Anderson said that he did not see Russell with a
clipboard although he was, at the time Russell , Morton , and Landis were there, and
the union meeting was in progress , in and out of the main restaurant taking care of
customers , so that he said he could not positively testify that Russell did not have
anything before him other than the setups for a drink. R. H. Miles, a witness
called by the Respondent , testified that he visited with the Respondent 's supervisors
at their table and that he did not observe either a clipboard or any other writing
material in the possession of Russell at the time he sat at their table. Miles is not
connected with the Company . Another witness , N. B. Robbins , an employee of
Matthews , said that he had stopped by the table where Russell , Morton , and Landis
were sitting and did not observe that they or any one of them had a clipboard.
Landis did not testify on the point . He said he visited with Russell and Morton for
15 or 20 minutes; was not there when the union meeting broke up and the employ-
ees started leaving the private dining room , so that his testimony here is not of
much value except for the fact that he "happened to see a truck that he knew," and
therefore stopped and talked to Russell and Morton.
It seems to me that the record clearly discloses that Landis said he approached
Anderson 's Truck Stop from the north ; it seems to me that the record shows that
Morton and Russell approached the same place from the south , each of them
bound for the Elks Lodge. Landis said he was on the way to the Elks Lodge; Mor-
ton said the lodge was closed or about to be closed. Russell said they went to the
Elks Lodge after leaving Anderson 's. The testimony of the three men on this point
is hard to rationalize and come out with a complete answer as to why they gathered
at the truck stop when they did. I do not credit the testimony of Russell and
Morton , and accept the testimony of those witnesses who said , in effect, that Rus-
sell checked names of employees in attendance at this important union meeting.
I find that Russell and Morton where engaged in surveillance of employee con-
certed activity in violation of Section 7 and Section 8(a) (1) of the Act.
The No-Solicitation Rule
Rule 15, contained in the Employees Handbook , has been mentioned above. It
states as a cause for discipline "soliciting on company property without permission."
It is stipulated herein that the Respondent has promulgated and maintained the rule
at all times and that all employees involved in this proceeding had received copies
of this booklet on their date of hire.
Randles confirmed the fact that the Company has enforced such a rule and has
instructed Makin or Russell to prohibit , employees from engaging in union activity
during their own time on company property. As I interpret the testimony of Ran-
dles, employees may, with permission from the Company , solicit during breaks and
lunch hours and time off on company property , but only with permission . I shall
find that such a rule, as it is enforced , is in violation of Section 8(a)(1). A no-
solicitation rule is unlawful if applied to nonworking time as well as to working
time. 1. R. Simplot Company Food Processing Division , 137 NLRB 1552, 1553;
Remington Rand Corporation , 141 NLRB 1052, 1056.
770-076-65-vol. 149-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Refusal To Bargain
As set forth above, the Union requested, and the Respondent refused, to enter
into collective -bargaining negotiations in January . There is no issue here concern-
ing which employees constitute the appropriate bargaining unit. The Respondent
refused, and continues to refuse, to recognize or bargain with the Union unless and
until such time as the Union proves its majority of employees in the unit under the
procedures established by Section 9 of the Act. Therefore, to determine a Section
8(a)(5) violation by the Respondent, it is necessary to find first that the Union did
have a majority on the demand date, and second that the Respondent's refusal to
recognize and deal with the Union was not in good faith. I shall so find, for the
following reasons:
It having been decided that the four leadmen are supervisors, the number of
employees within the unit becomes 68. Therefore, on the demand date (January 11),
the Union must have had to hold 35 cards for a majority. Thirty-eight au-
thenticated cards were in the hands of the Union when demand for recognition was
made. It therefore becomes unnecessary to decide whether or not employee Cul-
lum's card is valid, he having signed and then canceled it, since if it is thrown out
a showing of majority still exists (37-35). The purported withdrawal of Cook's
card about January 22 was, if real, ineffective, which would leave the union ma-
jority at 37-35. (Should Cook's authorization card be considered a nullity, the
union majority is still established as 36-35.)
As to those employees who testified that they signed cards "only for a vote," a
logical conclusion would support a presumption that they knew the meaning of the
card; that Harris, Underwood, or Rue made it quite clear to 25 of them at a meet-
ing the importance of the event of signing such a card and what it meant on or
before the dates they signed; and that Union recognition was widely discussed within
the plant. They had all signed when the Union recognition demand was made.
The Union had every right to rely on the authorization of each of these men at the
time the demand letter was sent. Franks Bros. Company v. N.L.R.B., 321, U.S.
702, 703, 705; N.L.R.B. v. Stow Manufacturing Co., 217 F. 2d 900, 904-905, (C.A.
2); Rea Construction Company, 137 NLRB 1769, 1770, footnote I The 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. Joy Silk Mills, Inc.
v. N.L.R.B., 185 F. 2d 732, cert. denied 341 U.S. 914. See also Winn-Dixie Stores,
Inc., and Winn-Dixie Louisville, Inc., 143 NLRB 848; N.L.R.B. v. Sunshine Mining
Co., 110 F. 2d 780 (C.A. 9); Cumberland Shoe Corporation, 144 NLRB 1268.
Therefore, it is found that the majority of the employees within the accepted bar-
gaining unit had authorized the Union, as of the demand date of January 11, to rep-
resent them.
As a matter of law, the authorization cards are valid for the purpose of establish-
ing the Union's majority status; Winn-Dixie Stores, Inc., and Winn-Dixie Louisville,
Inc., 143 NLRB 848; Gene Hyde d/b/a Hyde's Super Market, 145 NLRB 1252.
The next question arises as to whether the Respondent , by its refusal to recognize
the Union as the bargaining agent for its employees , made such refusal in good
faith.
Had the Respondent been acting in good faith on January 11, it would have in-
sisted on proof of the Union's majority status in an election. I do not believe a
good-faith refusal on the part of the Respondent to bargain can be found in the
face of the attendant acts by it through its agents, as related above, of interference,
intimidation, and coercion. Its conduct in these respects, together with the fact
that the Union did not question the claimed majority status of the Union and its
refusal to have a question resolved with impartial source, leads to a conclusion that
its interrogation of employees . its surveillance of the union meeting , the invocation
of the no-solicitation rule, and the implied threats of loss of benefits and nonex-
pansion of the plant , can only impel a conclusion that the doubt expressed in writ-
ing by the Respondent on January 14 concerning the union majority was not a
good-faith doubt.
The Court of Appeals for the Fourth Circuit, in Florence Printing Co. v.
N.L.R.B., 333 F. 2d 289, enfg. 145 NLRB 141, rejected the Employer's contention
that it had a good -faith doubt as to the Union 's majority status, and reasoned that
if the Employer had any doubts, it could have agreed to the private election sug-
gested by the Union or it could have petitioned the Board under Section 9(c)(1)
(B) for a representation election. Refusing to pursue either course, it acted at its
peril.
JAS. H. MATTHEWS & CO. 179
In Cumberland Shoe Corporation, supra, the Board distinguished Englewood
Lumber Company, 130 NLRB 394, and in Cumberland states the controlling prin-
ciple obviously to be applied to the facts in the instant case. In Cumberland, the
Board held, in part:
We believe that the instant case is factually distinguishable from Englewood
Lumber, supra, and that hence that case is inapplicable. While it is true, as
found by the Trial Examiner, that 17 of the signatories testified that they were
told that a purpose of the cards was to secure a Board election, it does not
appear that they were told that this was the only purpose of the cards. In this
case the cards, on their face, explicitly authorized the Union only to act as
bargaining agent of the employees, and, contrary to the implied finding of the
Trial Examiner, the failure of the Union's solicitors to affirmatively restate this
authorization does not indicate that it was abandoned or ignored. Thus, there
is no evidence here to negative the overt action of the employees in signing
cards designating the Union as their bargaining agent, and the instant situation
is not one in which the Union has beguiled employees into signing union cards.
In view of the Respondent's threats, promises of benefit, and coercive inter-
rogation of employees, as found by the Trial Examiner, we are persuaded that
Respondent's refusal to bargain with the Union on January 23, 1963, was
not the result of a good-faith doubt of the Union's majority, but in order to
gain time to destroy that majority. We find, accordingly, that the Union has
demonstrated its majority status and that Respondent, by refusing to recognize
or bargain with it, violated Section 8(a)(5) and (1) of the Act. [Cases cited.]
See also Winn-Dixie Stoies, Inc., 138 NLRB 1355, 1361, 1368, footnote 12; Solo Cup
Company v. N.L.R.B., 332 F. 2d 447 (C.A. 4).
The result reached by the Board in Cumberland Shoe is binding on me and is
controlling on the facts as set forth above. Accordingly, I find that the Union
represented a majority of Respondent's employees in an appropriate unit at the time
request for recognition was made, and that the Respondent, when it then retused to
recognize the Union, violated Section 8(a)(5) of the Act. See also Gorbeas, Perez
& Morell, S.C., 133 NLRB 362, 363, 374. The Board ruled, at 363.
We agree with the Trial Examiner that Respondent violated Section 8(a)(5)
by refusing to bargain with the Union after it was duly designated by a ma-
jority of its employees. We find no merit in the Respondent's contention that
the authorization cards signed by the employees were obtained upon the prom-
ise that they would be used only for the purpose of filing a petition for a
representation election.
I find that by the several acts of interrogation, threats, interference, and coercion
mentioned above, the Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1) of the Act. I further find by reason of
the foregoing, that the Respondent has engaged in unfair labor practices in that it
refused and continues to refuse to bargain in good faith with a designated repre-
sentative of the employees for the purpose of collective bargaining in violation of
Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
V. THE REMEDY
Since it has been found that Respondent has engaged in and is engaging in un-
fair labor practices, I shall recommend that the Respondent cease and desist there-
from , and take certain affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondent has engaged in and is engaging in certain
acts of interference , restraint , and coercion , it shall be recommended that the Re-
spondent cease and desist therefrom.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, having found that Respondent has refused to bargain collectively with the
Union as the exclusive representative of the employees in the above-described ap-
propriate unit, I shall recommend that Respondent, on request, bargain collectively
with the Union.
By conduct found to constitute interference, restraint, and coercion, and by its
refusal to bargain with the majority representative of its employees in an appro-
priate unit, Respondent has demonstrated a determination not to accord to employ-
ees rights which the Act was designed to protect. It reasonably may be assumed
that further unfair labor practices of a same or different character may be expected
to occur unless Respondent is ordered to refrain from in any manner transgressing
employees' statutory rights. It will be recommended, therefore, that the Respond-
ent be ordered to cease and desist from interfering with, restraining, or coercing
its employees in any manner, in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to join or assist the Union, to bargain
collectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities as guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees employed at Respondent's Searcy,
Arkansas, plant, excluding office clerical employees, guards, and supervisors as de-
fined in the Act, constitute an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
3. International Association of Machinists, AFL-CIO, was, on January 11, 1964,
and at all times theieafter has been, the exclusive representative of all of the Re-
spondent's employees in the appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. By refusing to bargain collectively with International Association of Machin-
ists, AFL-CIO, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the Act.
The aforesaid labor practices are unfair labor practices within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, it is recommended that the Respondent, Jas.
H. Matthews & Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating any of its employees regarding their membership in, or activi-
ties on behalf of, any labor organization, or taking any affirmative action to deter-
mine who among its employees are or are not members of any labor organization,
or seeking to induce any of its members to withdraw from membership in the labor
organization by solicitation or promises of benefit, or threatening to deny any of its
employees privileges previously enjoyed by them, for the purpose of discouraging
membership in a labor organization.
(b) Refusing to bargain collectively with International Association of Machin-
ists, AFL-CIO, as the exclusive representative of all production and maintenance
employees employed at Respondent's Searcy, Arkansas, plant, excluding office cleri-
cal employees, guards, and supervisors as defined in the Act, with respect to rates
of pay, wages, hours of employment, or other conditions of employment.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist International Association of Machinists, AFL-CIO, or any other organiza-
tion, to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
JAS. H. MATTHEWS & CO. 181
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Upon request , bargain collectively with International Association of Machin-
ists, AFL-CIO, as the exclusive bargaining agent of all of its employees in the
bargaining unit described herein , with respect to rates of pay, wages , hours of em-
ployment, and other conditions of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its office and plant in Searcy , Arkansas , copies of the attached notice
marked "Appendix ."' Copies of said notice , to be furnished by the Regional Di-
rector for Region 26, shall , after being duly signed by an official representative of
the Respondent , be posted by it immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to ensure that said notices are not altered,
defaced , or covered by any other material.
(c) Notify the Regional Director for Region 26, in writing , within 10 days from
the date of this Trial Examiner 's Decision , what steps Respondent has taken to
comply herewith .'
7In the event that this Recommended Order be adopted by the Board, the wards "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, l.ntorcing an Order" shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order be adopted by the Board, this provision
shall be niodifled to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Decision and Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we notify our employees that:
WE WILL NOT interrogate our employees concerning their union membership
and activities, or seek to induce them to withdraw from membership in a
labor organization by solicitation or promise of benefits, deny them privileges
previously enjoyed by them for the purpose of discouraging membership in a
labor organization, or in any other manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist International Association of Machinists, AFL-
CIO, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL bargain collectively, upon request, with International Association
of Machinists, AFL-CIO, as the exclusive representative of all our employees
in the bargaining unit described herein, with respect to rates of pay, hours of
employment, and other conditions of employment, and, if an understanding is
reached , embody such understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees employed at Respondent's
Searcy, Arkansas , plant, excluding office clerical employees , guards, and
supervisors as defined in the Act.
All our employees are free to become , remain, or to refrain from becoming or
remaining , members of the above-named union , or any other labor organization,
except to the extent that their rights may be affected by a lawful agreement requir-
ing membership in a labor organization as a condition of employment.
JAS. H. MATTI-IEws & Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
-182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 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, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone
No. 534-3161 , if they have any questions concerning this notice or compliance with
its provisions.
Dazzo Products, Inc. and Local 810, Steel , Metals, Alloys & Hard-
ware Fabricators & Warehousemen , International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America . Case No. 2-CA-9726. October 28, 1964
DECISION AND ORDER
On July 21, 1964, Trial Examiner W. Edwin Youngblood issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 Decision.
Thereafter the Respondent filed exceptions and a brief in support
thereof, and the General Counsel filed a brief in support of the Trial
Examiner's Decision.
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 Brown].
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 en-
tire record in this case, including the Trial Examiner's Decision, the
exceptions, and the briefs, and adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent , its of-
ficers , agents, successors , and assigns , shall take the action set forth
in the Trial Examiner 's Recommended Order, with the following
addition :
1 The Regional Director , in his Decision and Direction of Election in Case No. 2-RC-
13099 , included Hernandez in the unit found appropriate therein, and no review thereof by
the Board was requested . Moreover , the record herein does not show that the Regional
Director ' s determination was erroneous . In these circumstances , we find, contrary to the
Respondent ' s contention , that Hernandez is not a supervisor and include him in the unit.
See Northwestern Publishing Company, 144 NLRB 1069 ( Member Leedom dissenting in
part on other grounds).
149 NLRB No. 7.