Jeffrey Mfg., Division

National Labor Relations Board - Board Decisions

Mar 3, 1980

248 N.L.R.B. 33 (N.L.R.B. 1980)

JEFFREY MANUFACTURING DIVISION 33
Jeffrey Manufacturing Division, Dresser Industries,
Inc. and United Steelworkers of America,
AFL-CIO. Cases 11-CA-7051, 11-CA-7337,
I 1-CA-7596, and 1 l-RC-4116
March 3, 1980
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On July 25, 1979, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision
in this consolidated proceeding. Thereafter, the Re-
spondent filed exceptions and a supporting brief,
the General Counsel filed exceptions and a sup-
porting brief, and the Charging Party filed excep-
tions and a brief in support thereof. Subsequently,
the Respondent filed an answering brief in opposi-
tion to the exceptions filed by both the General
Counsel and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith. 2
1. The Administrative Law Judge found, and we
agree, for the reasons stated by him, that the Re-
spondent violated Section 8(a)(1) of the Act by in-
terrogating employees regarding their union activ-
ity; by creating the impression of surveillance of
employees' union activities; by soliciting grievances
from employees in order to deter them from select-
ing the Union; by threatening employees with the
reduction of existing benefits if the Union was se-
lected as their collective-bargaining representative;
and by threatening to close the plant and terminate
l The Respondent asserts that the Administrative Law Judge's resolu-
tions of credibility, findings of fact, and conclusions of law are the result
of bias. After a careful examination of the entire record, we are satisfied
that this allegation is without merit. There is no basis for finding that bias
and partiality existed merely because the Administrative Law Judge re-
solved important factual conflicts in favor of the General Counsel's wit-
nesses. As the Supreme Court stated in .L.R.B v. Pittsburgh Steamship
Company, 337 U.S. 656, 659 (1949), "T]otal rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of fact."
Furthermore, it is the Board's established policy not to overrule an ad-
ministrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings
2 The General Counsel has excepted to the Administrative Law
Judge's recommendation that interest on backpay be computed at a rate
other than the 9 percent requested by the General Counsel. We find no
merit in that exception See Florida Steel Corporation, 231 NLRB 651
(1977)
248 NLRB No. 7
employees if the Union was selected as the collec-
tive-bargaining representative.
The Administrative Law Judge further found, as
part of this consolidated proceeding, that the chal-
lenge to the ballot of William R. Ford, Jr., be sus-
tained; that the challenge to the ballot of Walter
Ray Whitacre be overruled and his ballot opened
and counted; and that the Respondent interfered
with the election by engaging in certain objection-
able conduct.3 We agree with these findings of the
Administrative Law Judge.
2. In addition to the violations of the Act found
above, the Administrative Law Judge found that
on May 25, 1977, 4 the Respondent discharged em-
ployee Terry Boyter in violation of Section 8(a)(3)
of the Act. We agree with the Administrative Law
Judge's finding, as amplified herein. '
The underlying facts, as found by the Adminis-
trative Law Judge and more fully set out in his
Decision, are as follows:
On May 10, Boyter, who had been employed by
the Respondent for approximately 6 years, met
with Alfred L. Motley, a union staff representative,
in order to discuss the prospects of attempting to
organize the Respondent's plant. The following
day, Boyter, along with approximately six other
employees, attended another meeting with Motley,
at which time they all signed authorization cards
on behalf of the Union. Thereafter, Boyter actively
and openly began soliciting other employees to
sign such cards. Most of these solicitations oc-
curred in the Respondent's parking lot after work-
ing hours. According to the credited testimony of
employee Ernest Gunnells, Boyter was observed
engaging in such activity on Friday, May 13, by
Factory Superintendent Ted Eller.
As found by the Administrative Law Judge,
Boyter was unlawfully interrogated regarding his
union activities by Eller on May 16. On the follow-
ing day, Eller once again approached Boyter at
work and, after first interrogating him regarding
the Union, he told Boyter that he (Eller), was
sorry to have let everyone down and he didn't
"think we needled] a third party . . . to talk to ev-
erybody . . . if you've got a problem." Eller then
asked Boyter what his problems were. When
Boyter indicated that Maintenance Foreman
3 On October 27, 1977, an election was conducted among the employ-
ees in the appropriate unit at the Respondent's Belton, South Carolina,
facility. The tally of ballots showed that 65 ballots were cast for, and 63,
were cast against, the Petitioner; there were 4 challenged ballots, a
number sufficient to affect the results of the election. (In an unpublished
Decision and Order in Case I -RC-4416 dated February 0, 178, we
adopted, pro formao, the Regional Director's recommendation that the
challenge to the ballot of Larry Burgess be overruled )
All dates refer to 1977 unless otherwise indicated
Accordingly. we also adopt the Administrative Law Judge's conclu-
sion that Boyter is an eligible voter and that his ballot should be opened
and counted.
34 DECISIONS OF NATIONAL LABOR RATIONS BOARD
Lowden was one of his problems, Eller told him to
speak to Plant Manager Zwick about Lowden. In
response to Boyter's inquiry as to how he knew
about the Union, Eller said, "I just know," and fur-
ther responded by stating that he had known about
it for 2 weeks.6 Despite Eller's unlawful conduct,
Boyter was not dissuaded from engaging in union
activity but rather that afternoon continued to so-
licit cards.
On May 25, the date he was discharged, Boyter
left his work station in Department 915 (machine
shop, small assembly area) at or about 12:30 and
went to the lavatory. On his return to his lathe, he
stopped at the water fountain near the maintenance
area where Prince, another employee, spoke to him
and cautioned him against speaking of union activ-
ity in front of fellow employee Whitacre, because
he would report such statements. As Boyter turned
to leave, James Matheson, the foreman in Depart-
ment 914 (structural welding, fitting and assembly),
came up and asked him if there was a problem
with his machine. Boyter responded by asking him,
"What the hell is it to you?" When Matheson di-
rected Boyter to return to his machine, Boyter ex-
claimed, "Why don't you kiss my damn ass?" 7
Boyter nonetheless immediately returned to his
lathe, where he learned for the first time from
Eller that the regular foreman in Department 915,
Kay McCurry, had left early that day and that
Matheson was substituting for him. During the se-
quence of events described above, Boyter had been
away from his lathe for 20 minutes at most.
At approximately 2:45 p.m. Matheson told
Boyter to report to Eller's office where, in addition
to Eller, the Company's personnel director, Frank
Ford, was present. At this meeting, Ford told
Boyter that he could not speak to supervisors that
way. Boyter replied by stating that he had used
such language in the past.8 Ford then told Boyter
6 The Administrative Law Judge found that the Respondent violated
Sec 8(a)(1) of the Act by Eller's above-noted interrogation and solicita-
tion of grievances He dismissed the allegation, however, that the conver-
sation also violated Sec. 8(a)(1) of the Act in that it created an impression
of surveillance We agree with the violations found by the Administrative
Law Judge. We also find, however, that Eller's response to Boyter's in-
quiry clearly implies that the Respondent's knowledge of union activity
had been acquired through surveillance. Accordingly, we conclude that
Eller's remark created the impression of surveillance in violation of Sec
8(a)(1) of the Act. Since the Administrative Law Judge found other in-
stances of this violation, his recommended Order requires the Respondent
to cease and desist from such conduct Thus, our finding of this violation
does not affect that portion of the remedy.
7 Administrative Law Judge credited Boyter's testimony that at the
time he uttered this remark he was unaware that his own foreman, Kay
McCurry, had left early and had asked Matheson to fill in for him
TFhe Administrative Law Judge credited the testimony of Boyter and
Gunnells to the effect that the language used by Boyter to Matheson was
not unusual in the Respondent's plant The Administrative Law Judge
noted at least three occasions where language of this type had been used
by employees toward supervisors without discipline being imposed.
he would have to be terminated and thereupon
summarily discharged Boyter.
As fully discussed by the Administrative Law
Judge, the Respondent's witnesses who testified as
to the asserted reasons for discharging Boyter
varied somewhat in their explanations. In brief,
Eller assigned as the reasons Boyter's three previ-
ous warnings for being away from his machine and
the use of "profane remarks to his supervisor" on
the day of his discharge, which constituted a fourth
offense. 9 Eller testified that the decision to dis-
charge Boyter was a joint decision between him-
self, Personnel Director Ford, and Matheson."
Ford indicated, however, that the Respondent's
resident manager, Zwick (Eller's supervisor), di-
rected him to discharge Boyter if he could not suf-
ficiently explain his actions that day. Acccording
to Ford, he explained to Boyter that, in view of the
Respondent's "Instructions for Administering Dis-
cipline," the Respondent had no alternative but to
discharge him. Contrary to Eller, Ford's testimo-
ny clearly indicates that Boyter was not discharged
for the remarks to Matheson; rather, he was dis-
charged solely for being away from his work sta-
tion. In this regard, however, Matheson testified
that there is no restriction against employees using
the water fountain and, as noted by the Adminis-
trative Law Judge, the Respondent made no con-
tention that employees must have permission to use
the lavatory facilities or utilize them on an assigned
schedule.
In finding that the Respondent violated Section
8(a)(3) of the Act by discharging Boyter, the Ad-
ministrative Law Judge noted the following: (1)
Boyter's activity in card solicitation and other
union organizational activities which was open, un-
concealed, and admittedly known by the Respon-
dent; (2) the Respondent's demonstrated animus to-
wards the Union's organizational attempt; (3) the
summary nature of the discharge in a manner that
I The three previous warnings were dated October 30, 1975, July 22,
1976, and April 28, 1977 Eller indicated that it was the Respondent's
policy not to give employees copies of such warnings. McCurry testified
that with respect to the first to warnings he did not give Boyter a copy
of the warning or even show it to him. Rather, McCurry merely told
Boyter that he was being "written up." With respect to the third inci-
dent, the Administrative Law Judge credited Boyter's testimony that,
after first threatening him with a 3-day suspension, McCurry relented and
told him,"Well, I'm going to let you go this time. I'm not even going to
write you up. You're a good man. I'd hate to lose you."
'o Matheson testified, however, that he did not, in fact, recommend
Boyter's discharge and further testified that, even if he had been Boyter's
regular foreman, he would not have recommended his discharge for the
above-described incident.
i" The Administrative Law Judge noted, however, that, under the
above-cited personnel policy, discharge is not required after the accumu-
lation of three written conduct reports for the same offense, but rather
can be considered, along with other forms of discipline. In this connec-
tion, the Administrative Law Judge also noted that McCurry, Boyter's
regular foreman, testified explicitly that there was no rule requiring an
employee's discharge for a fourth offense.
JEFFREY MANUFACTURING DIVISION 35
appears contrary to the Respondent's practice,
since neither Boyter's regular foreman, McCurry,
nor his substitute foreman, Matheson, recommend-
ed such action; (4) the vulgar expression used by
Boyter was not unusual in the Respondent's plant
and was not intended as an act of insubordination,
since he did not have knowledge of Matheson's
role as his substitute supervisor; and (5) the distin-
guishable, if not conflicting, reasons assigned for
the discharge by Eller and Ford.
In adopting the Administrative Law Judge's con-
clusion, we emphasize that our agreement with him
is based on our view that, after thoroughly analyz-
ing the Respondent's asserted reasons for the dis-
charge, the Administrative Law Judge has in fact
found those reasons to be only a pretext for its un-
lawful discriminatory purpose.
By our agreement with the Administrative Law
Judge's conclusion we do not, of course, condone
the use of vulgar language to supervisory person-
nel. Such expressions, however, must be viewed in
the context in which they occur. The Board has
long recognized the fact that obscene or vulgar
language is used in the industrial sphere. 12 The
General Counsel has established in this case that
such language has even been employed toward su-
pervisors in the past without any discipline being
imposed against the offending employee. We
hardly think, then, that the Respondent can rely on
such language as a ground for discharge in the in-
stant situation since (1) Boyter was unaware that
Matheson was acting as his supervisor at the time
he uttered his remarks and (2) the remarks were
not delivered in a threatening or insubordinate
manner inasmuch as Boyter returned immediately
to his lathe after his exchange with Matheson.13
Moreover, Matheson himself testified that he, in
fact, did not recommend Boyter's discharge for
such language. Perhaps more importantly, although
Ford relied on Boyter's remarks to Matheson as
grounds for discharge at Boyter's termination inter-
view, at the hearing he testified that those remarks
did not play a part in the decision to discharge
Boyter.
Accordingly, we find that the Respondent seized
upon Boyter's remarks to form a portion of its pre-
textual reasons for discharging Boyter. Since we
conclude that the discharge was motivated by dis-
criminatory reasons, we find, in agreement with the
12 See, e.g. Passaic Crushed Stone Co.. Inc.. 206 NLRB 81, 85 (1973),
and cases cited therein.
13 Thus, this case is clearly distinguishable from Cannon Electric Com-
pany, 151 NLRB 1465 (1965), on which the Respondent places great reli-
ance. The facts in that case reveal that the profane language employed by
the discharged employee toward his supervisor was part of a pattern of
insolent and insubordinate conduct
Administrative Law Judge, that it violated Section
8(a)(3) and (1) of the Act. 14
3. Although the Administrative Law Judge
found that the unfair labor practices committed by
the Respondent were sufficient to warrant the re-
medial bargaining order requested by the General
Counsel, he refused to grant such relief on the
ground that the Union had not been designated as
bargaining representative by a majority of the em-
ployees. The Administrative Law Judge arrived at
this determination by first finding that, according
to the parties' stipulated unit compositions as of
September 16 and October 25,' 5 and his findings
regarding the inclusion of Boyter and Whitacre
and the exclusion of Ford, there were 133 unit em-
ployees as of the former date and 138 as of the
latter. The Administrative Law Judge then found
that, of the 80 authorization cards introduced into
evidence by the General Counsel, 14 of the cards
did not constitute valid designations of the Union
as bargaining representative. 6 Accordingly, he
concluded that the Union never had achieved ma-
jority status as it obtained only 66 valid cards, and
he therefore found it unnecessary to consider the
validity of the remaining authorization cards that
are contested by the Respondent. Contrary to the
Administrative Law Judge, we find, for the reasons
set forth below, that the Union had in fact obtained
a majority of valid authorization cards by Septem-
ber 16 and maintained that status as of October 25.
The record indicates that all 80 authorization
cards submitted by counsel for the General Coun-
sel contain clear and unambiguous language indi-
cating that the signers authorized the Union to rep-
resent them for the purpose of collective bargain-
ing.' 7 In concluding that the 14 cards solicited by
Boyter, Fant, and Elmer Kelly were invalid desig-
nations, the Administrative Law Judge found that
the totality of the circumstances surrounding the
card solicitations by the three above-noted individ-
14 We do not agree, however, with the Administrative Law Judge's
observation that Boyter's discharge may also be considered as objection-
able conduct even though it occurred prior to the filing of the petition
See Sunnyland Packing Co., 227 NLRB 590, 591 (1976).
'5 September 16 is the stipulated date of the Employer's receipt of the
Union's request to bargain. October 25 was 2 days before the representa-
tion election.
'" The Administrative Law Judge invalidated the 11 cards solicited by
Terry Boyter (George M. Jordan, William D Spruell, Joey L Turner.
Samuel D. Lindsay, Roy P. Hall, Sam F. Hanks, Benjamin Cobb, Larry
W Horne, Ernest E. Gunnells, Coley D Prince, and Lester M Orin) 2
cards solicited by Herman Fant (Darrell B Foster and Daniel Fant)L and
I card solicited by Elmer L. Kelly (George Kelly)
7 The language of the card is as follows:
I hereby request and accept membership in the UNITED STEEL-
WORKERS OF AMERICA, and of my on free will hereby au-
thorize the United Steelworkers of America, its agents or representa-
tives, to act for me as a collective bargaining agency in all matters
pertaining to rates of pay, wages, hours of employment, or other
conditions of employment, and to enter into contracts with my em-
ployer covering all such matters.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uals "[were] of such character at least arguably to
indicate that the purpose of the cards was designed
for or essentially limited to petitioning or voting
purposes in an election." 8 In so finding, the Ad-
ministrative Law Judge noted that, "The testimony
of important General Counsel witness Boyter in
regard to those cards is certainly not clear, con-
vincing, or persuasive to the contrary." In the Ad-
ministrative Law Judge's view, Boyter's testimony,
when considered in conjunction with the other rel-
evant testimony regarding the solicitations of the
14 cards, led to the conclusion that counsel for the
General Counsel had not met his burden of estab-
lishing the validity of the cards.
We recently set forth the standards by which we
determine the validity of authorization cards, as
follows: 19
In N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969), the Supreme Court approved
Board law on determining the validity or inva-
lidity of authorization cards, as set forth in
Cumberland Shoe Corporation, 144 NLRB 1268
(1963), enfd. 351 F.2d 917 (6th Cir. 1975), and
reaffirmed in Levi Strauss & Co., 172 NLRB
732 (1968). The Court described Board law in
the following terms (395 U.S. at 584):
Under the Cumberland Shoe doctrine, if the
card itself is unambiguous (i.e., states on its
face that the signer authorizes the Union to
represent the employee for collective bar-
gaining purposes and not to seek an elec-
tion), it will be counted unless it is proved
that the employee was told that the card
was to be used solely for the purpose of ob-
taining an election.
With respect to employees who sign cards
upon alleged misrepresentations as to their
purpose, the Court said, "[E]mployees should
be bound by the clear langauge of what they
sign unless that language is deliberately and
clearly canceled by a union adherent with
words calculated to direct the signer to disre-
gard and forget the language above his signa-
lR Specifically, the Administrative Law Judge relied on (1) Boyter's
testimony that he stated the purpose of the card as follows: "I told them
that this was not a union card. I said 't doesn't mean that you are join-
ing the union, it is just to petition for the union, to get a vote for the
union.' I said that 'you would have to have 60 percent or better before
we could get the union in here, or the government in here to, petition
them' I said that it could help your wages, better benefits; I said, 'but
you would have to negotiate everything you worked for if the Union did
go in' "; (2) Herman Fant's testimony that he told his son, Daniel Fant.
that "the sole or only purpose" of the card was to get an election and
that, when Darrell Foster returned his signed card to Fant, Foster stated
that he would help them get a vote but that he would not join the Union;
and (3) Elmer Kelly's testimony that he told his brother George Kelly
that the card was "for nothing but an election"
"g Keystone Pretzel Bakery, Inc., 242 NLRB No 77 (1979).
ture." (395 U.S. at 606.) The Court cautioned
the Board not to apply the Cumberland Shoe
rule mechanically, and quoted with approval
the Board's langauge in Levi Strauss, supra,
that "It is not the use or nonuse of certain key
or 'magic' words that is controlling, but
whether or not the totality of circumstances
surrounding the card solicitation is such as to
add up to an assurance to the card signer that
his card will be used for no purpose other than
to help get an election." (395 U.S. at fn. 27.)
Although the Administrative Law Judge re-
ferred to the proper standard, we find that, in cer-
tain instances, he erred in its application. We note
that counsel for the General Counsel established,
through both authenticating testimony and the un-
ambiguous language on the face of the authoriza-
tion card, the prima facie validity of the cards in
issue. The Administrative Law Judge appears to
have required that, in addition, at least with respect
to the cards solicited by Boyter, there be clear and
convincing evidence that the solicitor did not
engage in any misrepresentation as to the purpose
of the cards. We do not agree with the imposition
of such a standard of proof. Applying the proper
standard, we find that, while Boyter's multiple
comments, set forth above, allude, in part, to the
use of the card for an election, they do not contro-
vert the language of the card nor misstate its pur-
pose. 20 Thus, in the absence of testimony by indi-
vidual employees that statements made to them by
Boyter added up to an assurance that the card
would be used for nothing other than an election,
we will consider the card valid.
In the first instance, we note that all of the em-
ployees whom Boyter solicited and who testified at
the hearing indicated that they read the card before
signing. With respect to what Boyter said to them,
they testified as follows:
S. D. Lindsay testified that Boyter told him the
card was to "get a union representative to come
down and talk to employees" and that it did not
mean he was joining the Union. According to
Lindsay, Boyter also discussed the possibility of the
Union bringing better benefits and wages.
Roy Hall testified that Boyter told him that "he
was trying to get enough people to sign cards to
get an election." On cross-examination by counsel
for the General Counsel, however, Hall recalled
that Boyter told him that the cards indicated union
support.
20 Hedstrom Company, a subsidiary of Brown Group. Inc., 223 NLRB
1409 (1976), enforcement granted in part, denied in part, and remanded in
part 558 F.2d 1137 (3d Cir. 1977); Federal Stainless Sink Div. of Unarco
Industries. Inc., 197 NLRB 489, 494 (1972).
JEFFREY MANUFACTURING DIVISION 37
According to Ernest Gunnells, Boyter told him
that, "If we can get enough cards signed, we can
get a union representative here to explain the
Union to us, and maybe we can get a vote on it."
Joey Turner testified that, after Boyter gave him
a card, he read it and asked if it were true that it
allowed the Union to bargain for him. According
to Turner, Boyter replied, "No, it was just to get
the union to come in and talk to us." On cross-ex-
amination, however, Turner indicatd that, before
he signed the card, Boyter stated that, if the Union
came in, there would be a possibility of improve-
ments in wages, benefits, and treatment by supervi-
sors.
George M. Jordan testified that Boyter told him
"this is the card for the union" and, if enough
cards were obtained, the Union "would come
down and petition for votes; in other words, they
could pass out literature."
William Spruell testified that after he read the
card which Boyter submitted to him, he asked
Boyter, "Does this mean we are joining the
Union?" Boyter replied, "All this will do is to get
the union representative to show we are interested
in talking to the union."
The testimony of Lester Orvin reveals that
Boyter did not make any representations to him,
but merely gave him a card which Orvin read,
signed, and returned. The testimony of Larry
Horne is to the same effect.
After examining this testimony, and noting spe-
cifically that all eight of these employees read the
card, we find nothing in the totality of the circum-
stances to indicate that Boyter deliberately and
clearly directed employees to disregard the express
language of the cards, or otherwise assured them
that these cards would be used for no purpose
other than to get an election. 21 Accordingly, we
find the cards of these eight employees to be valid.
Likewise, we shall count the cards of Benjamin
Cobb and Coley D. Prince, since the record re-
veals that they read the cards before signing and,
as we have indicated above, we do not find
Boyter's general statement as to what he told em-
ployees, standing alone, sufficient to invalidate oth-
erwise properly authenticated cards. 2 2
21 The Great Atlantic Pacific Tea Company, Inc., 230 NLRB 766
(1977) (Champion's card); Peerless of America, Inc. v. N.L.R.B., 484 F.2d
1108 (7th Cir. 1973), enfg 198 NLRB 982 (1972).
We find the instant case distinguishable from Bookland. Inc., 221
NLRB 35 (1975). There, the Board invalidated a card that had been so-
licited with the statement that "the only thing the card was for was so
that the Union could keep in touch with us through literature of what
was going on in the Union itself"In that case, however, the solicitor also
denied, in response to a direct question by the signer, that the card meant
that the employees wanted a union and, more importantly, the signer
never read the card
22 We agree with the Administrative Law Judge's finding that the
cards of employees Samuel Hanks, Daniel Fant, Darrell Foster, and
As noted above, after finding that 14 of the
Union's authorization cards were invalid, the Ad-
ministrative Law Judge determined that the Union
never attained majority support among the employ-
ees in the appropriate unit and thus he did not
make findings or conclusions as to the validity of
the remaining cards contested by the Respon-
dent. 2 3 Having reversed the Administrative Law
Judge's finding with respect to 10 of the cards
found invalid by the Administrative Law Judge,
we must address the validity of the remaining con-
tested cards.
The Respondent challenges the validity of the
cards of J. R. Gunnells, James Williamson, Theo-
dore Thompson, James Shaw, and Robert Gun-
nells, all of whom were solicited by employee
Larry Horne. At the hearing, Horne testified that
he received blank cards from Boyter on the morn-
ing of May 12. He distributed the cards to several
employees, telling them to read the cards and sign
them if they wished. He unequivocally denied ever
stating that the cards' only purpose was to get an
election.
J. R. Gunnells' testimony corroborates Horne's.
Gunnells testified that Horne told him to read the
card, sign it, and return it, all of which he did. Wil-
liamson testified that he could not recall exactly
what Horne told him and that he did not read the
entire card before signing and returning it.
We shall count both cards. With respect to Wil-
liamson's card, there is nothing in the circum-
stances surrounding the solicitation of the card to
indicate that he was assured that the card would be
used for no purpose other than to get an election.
The absence of evidence indicating that Williamson
read the entire card does not, in our view, compel
a conclusion that he did not intend to designate the
Union as a collective-bargaining representative. 2 4
We shall also count the cards of Robert Gun-
nells, James Shaw, and Theodore Thompson, none
of whom testified at the hearing. However, as set
forth above, Horne's testimony does not reveal any
improper solicitations.
The Respondent also contends that the card of
R. D. Bell is invalid because it was improperly so-
licited. According to Bell's testimony, he received
a card from Ernest Gunnells, who told Bell that
George Kelly cannot be counted as valid designations After carefully re-
viewing the relevant testimony, we are of the view that the totality of
the circumstances surrounding the solicitation of these individuals added
up to an assurance that the signer's card would be used for no purpose
other than to help get an election
23 Of the 80 authorization cards introduced into evidence by counsel
for the General Counsel the Respondent challenges the validity of 29 As
each of the remaining 51 cards admitted into evidence vwas identified and
authenticated on the record, we find that they may be relied on to deter-
mine the Union's representative status
24 Keystone Pretzel Bakery, Inc., supra
38 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
the card did not mean that he was joining the
Union but that "it was just to get a representative
to explain the purpose of the Union to us at a
meeting." Bell then read the card, signed it, and re-
turned it to Gunnells. We do not find Gunnells'
statement as to the purpose of the card sufficient to
cancel the unambiguous language on the card,
which Bell read, indicating that the signer autho-
rizes the Union to act as a collective-bargaining
representative. Accordingly, we shall count Bell's
card as valid.
The Respondent objects to the validity of the
cards of James A. Cobb and Walter Palmore on
the basis that the General Counsel's witnesses
failed to authenticate the date on which those cards
were signed. In addition, the Respondent chal-
lenges the card of Jimmy R. Curry on the basis
that his name was printed on the card rather than
written and the solicitor did not witness Curry's
execution of the card.
The date on Cobb's card is May 11, 1977, while
the testimony of Evans, who solicited the card, re-
veals that Cobb executed the card on May 12,
1977. It is clear that such a minor variance will not
affect the validity of a properly authenticated
card. 25
The card signed by Palmore is dated September
31, 1977. Evans' uncontradicted testimony indi-
cates, however, that Palmore signed the card at his
home on September 13, 1977. The back of the card
bears a marking that it was received by the Board's
Regional Office on September 16. On the basis of
Evans' testimony and the date stamp on the card,
we find that it was executed on September 13,
1977, and that the date listed on the card is an in-
advertent error. As we indicated with respect to
Cobb's card, such a variance does not affect the
validity of a properly authenticated card and there-
fore we shall count both of the above-noted cards
toward the Union's majority.
With respect to the Respondent's challenge to
the card of Curry, the record reveals that Curry
testified at the hearing and identified his card and
signature. Accordingly, his card is not rendered in-
valid merely because he printed his name rather
than wrote it in script, and it is certainly not invali-
dated because the solicitor did not witness his sig-
nature. 26
25 The Board has held that if there has been competent testimony as to
its execution, even the absence of dates altogether will not affect the va-
lidity of an authorization card. See James Innaco, d/b/a Skyline Transport.
228 NLRB 352 (1977), and Clark Products, Inc.. Subsidiary of Nopco
Chemical Company, 160 NLRB 23, 31 (1966), enfd. 385 F.2d 396 (7th Cir.
1967).
26 See McEwen Manufacturing Company and Washington Industries,
Inc., 172 NLRB 990 (1968), enfd. 419 F.2d 1207 (D.C.Cir. 1969), cert.
denied 397 U.S. 988 (1970).
The Respondent challenges the validity of the
card of Richard Thompson, who is illiterate, on the
ground that it was improperly solicited. Evans,
while he was at Thompson's house on May 14, told
him that the purpose of the card was to "try and
get the union in down there" and that "most of the
fellows down at the mill had signed one." In addi-
tion, Thompson's wife, who was present at the
time, read the contents of the card to her husband.
Whether, as Evans testified, Thompson then signed
the card himself or, as Thompson testified, his wife
signed the card at his direction, is not a critical
consideration since, in either case, it is clear that
Thompson's signature was intended by him to
show support for the Union. 2 7 The fact that
Thompson did not read the card himself but rather
had it read to him does not diminish its validity.
The only requirement with respect to an employee
who cannot read English is that the purpose of the
card be adequately communicated to him. 28 We
find that this requirement was met herein and we
further find that none of the statements made by
Evans act to invalidate the card. Accordingly, we
shall count it toward the Union's majority.
In view of our findings above, we conclude that
the Union represented a majority of the Respon-
dent's employees as of September 16, 1979.29
4. Although the Administrative Law Judge was
of the view that the Respondent's unfair labor
practices were sufficiently severe to warrant the is-
suance of a bargaining order, in view of his finding
that the Union never attained majority status, he
did not impose one. Rather, in fashioning a
remedy, the Administrative Law Judge recom-
mended that the challenged ballots of Boyter and
Whitacre, as well as the ballot of Burgess (the chal-
lenge to which was withdrawn), be opened and
counted and that a certification of representative
issue if the revised tally of ballots resulted in a ma-
jority being cast for the Union. In the event that
the revised tally of ballots did not result in a ma-
jority being cast for the Union, the Administrative
Law Judge recommended that a second election be
directed.
As noted above, we agree with the Administra-
tive Law Judge's recommendations regarding the
challenged ballots. We also agree with his recom-
mendation that a certification of representative
issue if the Union prevails in the election. Having
found that the Union did obtain majority support,
27 Essex Wire Corporation, 188 NLRB 397, 416 (1971) (Janik's card).
1" Ruby Concrete Company, 213 NLRB 724, 727 (1974), and cases cited
therein.
29 As of that date, the Union had obtained 71 cards in the unit of 133
employees. In view of our finding that the Union attained majority status,
we find it unnecessary to address the validity of the cards of Elmer
Kelly, James Greer, Jimmy Sonefelt, William King, and Josh Smith.
JEFFREY MANUFACTURING DIVISION 39
however, we further find that the unfair labor
practices committed by the Respondent also war-
rant the issuance of a bargaining order and we shall
so provide. 30
The record reveals that the Respondent em-
barked on its course of unlawful conduct on May
16, shortly after it first obtained knowledge of the
Union's organizational campaign, and continued
that course up to the very date of the election, Oc-
tober 27. During this period, the Respondent's
agents engaged in 13 separate instances of interro-
gation; solicited grievances; created the impression
of surveillance of employees' union activities;
threatened one employee with the loss of existing
benefits; and threatened the closure of the plant
and the termination of employees if the Union was
selected as the collective-bargaining representative.
Additionally, the Respondent violated the Act by
its unlawful discharge of Boyter, the Union's pri-
mary adherent, on May 25. We find that the Re-
spondent's campaign of unfair labor practices had
"the tendency to undermine majority support and
impede the election processes."31 After duly con-
sidering the matter, we further find that the possi-
bility of erasing the effects of the Respondent's
unfair labor practices and of ensuring a fair election
by the use of traditional remedies is slight and that
employee sentiment, once expressed through au-
thorization cards, would be better protected by the
issuance of a bargaining order. A bargaining order
is warranted here not only to protect employer free
choice, but also to insure that the Respondent does
not profit by its own wrongdoing. 3 2 Since the Re-
spondent's unlawful conduct commenced in May
1977, prior to the Union's attainment of majority
support, we shall date the bargaining order as of
September 16, 1977, the date we have found that
the Union obtained majority status. 33
30 The Great Atlantic & Pacific Tea Company. supra; see also Case. Inc.,
237 NLRB No. 60 (1978).
3 NL.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969).
32 Case, Inc.. supra: Gary Maughan and Michael Walsh, et al., a Califor-
nia Limited Partnership, d/b/a The Holding Company, 231 NLRB 383
(1977), and cases cited therein.
33 Bandag. Incorporated, 228 NLRB 1045 (1977). Members Penello and
Truesdale do not believe that the issuance of a bargaining order from this
date is precluded by the absence of a violation of Sec. 8(a)(5) and (1) of
the Act as of that time. See Beasley Energy, Inc d/b/a Peaker Run Coal
Company Ohio Division #1, 228 NLRB 93, 97 (1977).
Although Chairman Fanning would normally agree with this date be-
cause it is also the date of the Respondent's rejection of the Union's
demand for recognition, under the circumstances of this case he is unable
to do so
In Chairman Fanning's view, in the absence of a violation of Sec.
8(a(5) of the Act, the Board is not empowered to order bargaining as to
past unilateral decisions and actions. See his concurring opinions in Beas-
ley Energy. Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228
NLRB 93 (1977), and Hambre Hombre Enterprises, Inc., d/b/a Panchi-
to's, 228 NLRB 136 (1977).
In the instant case, the charge alleging that the Respondent violated
Sec. 8(aX5) and (1) of the Act by refusing the Union's demand for recog-
nition on the above-noted date was not filed until April 25, 1978. Chair-
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Jeffrey Manufacturing Division, Dresser Industries,
Inc., Belton, South Carolina, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
or other employees' union membership, affiliation,
views, sympathies, activities, or other protected
concerted activities, in interference with, restraint,
or coercion of their exercise of any right under the
National Labor Relations Act, as amended.
(b) Creating the impression of surveillance, in
violation of said Act, over its employees' union or
other protected concerted activities under the Act.
(c) Soliciting grievances from its employees so as
to coerce or restrain them, in violation of said Act,
from union membership or activity or attempt to
bargain collectively, or so as to interfere with their
exercise or attempted exercise of any right under
the Act.
(d) Threatening, expressly or impliedly, the ces-
sation, cancellation, withdrawal, removal, discon-
tinuance, loss, or diminution of any existing job-re-
lated economic benefit or working condition privi-
lege, or threatening adverse alteration of job status,
or threatening that negotiation with a union would
be based upon withdrawal or cancellation of em-
ployees' existing job-related benefits and working
condition privileges, or threatening closure or dis-
continuance of its plant, or threatening any other
form of reprisal, for union adherence, support,
voting, selection of a union as collective-bargaining
representative, or in the event of unionization.
(e) Discharging, terminating the employment of,
laying off, furloughing, suspending, or otherwise in
violation of the Act altering the employment status
of any employee, or threatening so to do, or failing
or refusing to recall, reinstate, or rehire any em-
ployee, because he or she has exercised or proposes
to exercise or continue to exercise any right under
the National Labor Relations Act, as amended; or
directly or indirectly so doing, or threatening to do
man Fanning is of the view that the Union's demand for recognition was
continuing in nature and, because Sec. 10(b) of the Act precludes the
Board from finding an unfair labor practice with respect to conduct oc-
curring more than 6 months prior to the filing of the charge, that the
Respondent violated Sec. 8(aX5) and (1) of the Act by refusing to recog-
nize that demand on October 25, 1977; and that the Board's bargaining
order should be dated as of that date.
Since the Respondent has engaged in unfair labor practices of a suffi-
ciently egregious nature as to demonstrate a disregard for its employees
fundamental statutory rights, we adopt the Administrative Law Judge's
order requiring the Respondent to cease and desist from in any other
manner infringing upon the rights guaranteed to its employees by Sec 7
of the Act. See Hickmort Foods. Inc., 242 NLRB No. 177 (1979).
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so, so as to discriminate in regard to the hire,
tenure, or terms or conditions of employment of
any employee because he or she exercises or pro-
poses to exercise or continue to exercise such right
or engage in such activity.
(f) Directly or indirectly engaging in any of the
foregoing actions or activities or any like or related
act in order to dissipate the collective-bargaining
representational status of its employees' lawfully
designated collective-bargaining representative, or
for the purpose of causing its employees to discon-
tinue or refrain from exercising their right to bar-
gain collectively with the Respondent, or other-
wise so as to interfere with, restrain, or coerce its
employees in the exercise of their rights under the
Act, or so as to prevent, impede, or interfere with
free and fair election processes of the Board under
the Act.
(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their right of self-organization; to form, join, or
assist any labor organization; to bargain collective-
ly through representatives of their own choosing;
to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or pro-
tection; or to refrain from any and all such activi-
ties.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Recognize, effective from the date beginning
September 16, 1977, and, upon request, bargain col-
lectively and in good faith with the United Steel-
workers of America, AFL-CIO, as the exclusive
representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement. The appropriate
bargaining unit is:
All production and maintenance employees
employed by the Employer at its Belton,
South Carolina, facility, excluding office cleri-
cal employees, guards and supervisors.
(b) Offer to Terry Daniel Boyter immediate, full,
and unconditional reinstatement to his former job
(or, if that position no longer exists, to a substan-
tially equivalent job) with the Respondent, without
prejudice to his seniority and other rights, privi-
leges, benefits, and emoluments, including but not
limited to any pay and wage rate increases to com-
parable employees since the Respondent's termina-
tion of Terry D. Boyter; and make Terry D.
Boyter whole for any loss of income, benefits, and
emoluments (including overtime, holiday and vaca-
tion pay, and time off, and hospitalization, medical
and other insurance claims and benefits, both per-
sonal and derivative and dependents, if any, and
expenditures in lieu thereof during any noncover-
age period until his reinstatement hereunder), to-
gether with interest, in the manner set forth in
"The Remedy" portion of the Administrative Law
Judge's Decision.
(c) Expunge from all of the Respondent's books
and records any entry or mention indicating or to
the effect that the termination of Terry D. Boyter
was because of any work or work-related fault, de-
ficiency, or shortcoming on his part or based upon
contravention or infraction of any of the Respon-
dent's rules, requirements, or policies; and refrain
from making any such report or statement volun-
tarily or in response to any inquiry from any em-
ployer, prospective employer, employment agency,
unemployment insurance office, or reference-seeker
or inquiry.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Belton, South Carolina, plant
copies of the attached notice marked "Appen-
dix." 3 4 Copies of said notice, on forms provided by
the Regional Director for Region 11, after being
duly signed by the Respondent's authorized repre-
sentative, shall be posted in said premises by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 11,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
DIRECTION
It is hereby directed that the Regional Director
for Region 11 shall, within 10 days from the date
of this Decision, Order, and Direction, open and
count the ballots cast by Terry Boyter, Walter R.
Whitacre, and Larry Burgess in Case 11-RC-4116,
and prepare and serve on the parties a revised tally
of ballots. If the revised tally reveals that the Peti-
tioner has received a majority of the valid ballots
a4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
---
JEFFREY MANUFACTURING DIVISION 41
cast, the Regional Director shall issue a Certifica-
tion of Representative. However, if the revised
tally shows that the Petitioner has not received a
majority of the valid ballots cast, the Regional Di-
rector shall set aside the election results, dismiss
the petition, and vacate the proceedings.
APPENDIX
NOTICE TO EMPL OYEES
POSTED BY ORDER OF THE
NATIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, the National Labor Relations
Board has found that we violated the National
Labor Relations Act, as amended, and has ordered
us to post this notice. We will abide by the follow-
ing:
As employees, the National Labor Relations
Act gives you these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represen-
tatives of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WII.L NOT question you in violation of
the Act, concerning your union membership,
affiliation, sympathies, desires, activities, or
other rights or actions guaranteed to you
under the National Labor Relations Act.
WE WI.L NOT, in any violation of the Act,
create the impression that your union or other
protected concerted activities are under our
surveillance.
WE WlLt. NOT solicit grievances from you
so as to interfere with, restrain, or coerce your
exercise of your rights to join or act through a
union, bargain collectively with us, or any of
your rights under the Act.
WE WILL NOT, in violation of the Act,
threaten to discontinue any of your existing
employment benefits, or to close down our
factory, or to retaliate in any other way
against you or your jobs, for joining a union
or engaging in union activity, or for voting for
a union, or for attempting to bargain with us
collectively or exercising or asserting any
other right you have under the Act, or in the
event United Steelworkers of America, AFL-
CIO, or any other union of your choice is se-
lected by you as your bargaining representa-
tive.
WE WILL NOT discharge, terminate, lay off,
furlough, suspend, refuse or fail to reinstate,
recall or rehire, or in any way change the job
status of any employee because he or she en-
gages in union activity, or exercises, tries to
exercise, or continues to exercise any right
under the National Labor Relations Act.
WE WIL. NOT refuse to recognize or bar-
gain with United Steelworkers of America,
AFL-CIO, as the exclusive representative of
all employees in the bargaining unit described
below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed by Section 7 of
the Act.
WE WII.LL recognize, effective from the date
beginning September 16, 1977, and, upon re-
quest, bargain collectively and in good faith
with United Steelworkers of America, AFL-
CIO, as the exclusive bargaining representative
of all the employees in the bargaining unit de-
scribed below with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment, and if an un-
derstanding is reached, embody such under-
standing in a signed agreement. The appropri-
ate bargaining unit is:
All production and maintenance employees
employed by the Employer at our Belton,
South Carolina, facility, excluding office
clerical employees, guards and supervisors.
WE WILL offer Terry D. Boyter immediate,
full, and unconditional reinstatement to his
former job, with full seniority and other rights,
benefits, and emoluments, just as if we had not
discharged him on May 25, 1977; and WE
WILL pay him, with interest, for all wages and
benefits lost by him because of that discharge.
WE WILL also expunge from Terry D.
Boyter's records any indication that he was
discharged for any work-related fault, and WE
WILL NOT so inform any other employer, pro-
spective employer, employment agency, unem-
ployment insurance office, or reference-seeker
or inquiry.
All our employees are free to join, or to refrain
from joining, United Steelworkers of America,
AFL-CIO, or any other labor organization.
JEFFREY MANUFACTURING DIVISION,
DRESSER INDUSTRIES, INC.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHIBAUM, Administrative Law Judge:
This consolidated proceeding' under the National Labor
Relations Act, as amended, 29 U.S.C. 151, et seq., was
heard before me in Greenwood and Greenville, South
Carolina, on 13 hearing days between March 29, 1978,
and February 6, 1979,2 involving over 60 witnesses and
180 exhibits. All parties participated throughout by coun-
sel, who were afforded full opportunity to present evi-
dence and arguments, as well as to file post-trial briefs,
received from all of the parties by April 30, 1979. The
voluminous transcript (12 volumes), exhibits, and briefs,
aggregating over 2,500 pages, have been carefully con-
sidered.
The principal issues presented are whether Respondent
Employer violated Section 8(a)(1) of the National Labor
Relations Act, as amended, through coercive interroga-
tions of employees concerning their union sympathies
and activities, creation of the impression of employer
surveillance over those activities, soliciting employee
grievances with a purpose of undermining the Union's
organizational campaign, and threatening employees with
reprisals for union activity; Section 8(a)(3) and (I) by dis-
charging an employee for union activity and failing and
refusing to reinstate him; and Section 8(a)(5) and I by
failing and refusing to bargain collectively with the
Charging Union, United Steelworkers of America, AFL-
CIO, as exclusive representative of an appropriate bar-
gaining unit of Respondent's employees. Also presented
Complaint issued July 29, growing out of charge filed May 27, 1977.
On October 31, 1977, the Board's Regional Director for Region 11 indefi-
nitely postponed the hearing of this case, rescheduling it on November
18, 1977, for February 15, 1978. Case I -CA-7337: Consolidated com-
plaint (consolidating this case with Case 11-CA-7051) issued on January
9, 1978, growing out of charge filed December 7, 1977, as amended Janu-
ary 5, 1978. On January 12, 1978, the Regional Director consolidated the
two foregoing cases with Case 11 RC-4416, that disposition and the Re-
gional Director's accompanying Report on Objections and Challenges to
a Board-conducted election held on October 27, 1977, being affirmed by
the Board on February 10, 1978. Accordingly, hearing of the foregoing
consolidated cases was commenced before me on March 29, 1978, but
was thereafter, on application of General Counsel, adjourned sine die
pending investigation of allegedly interrelated new charges. Subsequent-
ly, complaint was issued in Case 11 l-CA-7596 on July II11, growing out of
charge filed April 25, 1978. On General Counsel's motion dated July 19,
all of the foregoing cases were consolidated by my order of October 13,
1978, which also granted General Counsel's motion of September 22,
over Respondent's opposition of October 5, to amend the earlier consoli-
dated complaint (Cases I -CA-7051 and 11-CA-7337), and preserved to
Respondent the right to interpose any and all germane defenses and con-
tentions relating thereto. (Respondent had, by cross-motion served
August 28, moved to dismiss Case I -CA-7596 or alternatively for sum-
mary judgment therein. The effect of my order of October 13 was to pre-
serve to Respondent all of its defenses and contentions raised or suggest-
ed in its cross-motion.) My order of October 13 also scheduled resump-
tion of the hearing on November 1, 1978. On November 22, 1978, at my
suggestion, General Counsel moved to merge all of the allegations of all
of the foregoing complaints into a single superseding ("second amended")
consolidated complaint (with yet further amendments), which I allowed,
with leave to Respondent to interpose a single superseding amended
answer, which it did on December 1, 1978. Case I -RC-4416, referred to
above, involves issues the same as or interrelated to issues in the forego-
ing complaint (CA) cases, as well as determinative challenges to ballots
Unless otherwise specified, dates are 1977 throughout this Decision
2 With an 8-month intervening recess necessitated by the circumstances
described in fn. 1, supra.
is the question of the appropriate remedy for any unfair
labor practices committed by Respondent.3
Upon the entire record and my observation of the tes-
timonial demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONCI USIONS
I. JURISDICTION
At all material times, Respondent has been and is a
Delaware corporation, with a plant in Belton, South
Carolina, for manufacture of mining industry conveyor
components. During the representative calendar year im-
mediately preceding issuance of the second amended
complaint, Respondent manufactured and shipped, di-
rectly in interstate commerce, to points outside South
Carolina, products valued in excess of $50,000.
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), (7) of the Act; and that at
those times the Charging Party Union has been and is a
labor organization as defined in Section 2(5) of the Act.
11. AI.IEGED UNFAIR LABOR PRACTICES;FACTS AS
FOUND
After some necessary background, the matters with
which we are here concerned will be considered chrono-
logically as they occurred.
A. Background: Respondent's Business, Its
Organizational Hierarchy, and Its Employees'
Attempts to Exercise Rights Under the Act
Jeffrey Manufacturing Division of Dresser Industries,
Inc., a Delaware corporation, maintains a mining indus-
try over-and-underground conveyor components factory
in Belton, South Carolina, the only corporate location in-
volved in this particular case.
The following Chart 4 is a schematic representation of
the organization and managerial/supervisory hierarchy
of Respondent's Belton plant, based chiefly on the testi-
mony of Respondent's witnesses, at the times here mate-
rial: 5
The supervisory status of William Riley Ford, Jr., (de-
partments 911 and 912) and Walter Ray Whitacre (de-
partments 911 and 913) is in issue and will be considered
infra, section VI, "The Representation Case."
B. Commencement of Respondent's Employee's
Attempts To Exercise Rights Under the Act
An attempt, renewed attempt, or continuing attempt to
organize Respondent's Belton plant production and main-
tenance employees for collective bargaining, under the
Act, commenced in February 1977,6 when Respondent's
a As already indicated (fn 1, supra), interrelated issues arising out of
the October 27 Board-conducted statutory election are also here by con-
solidation.
[Omitted from publication.l
Resp. Exh. 26 is a scale drawing of the Belton plant.
6 Respondent's witness and Foreman McCurry testified that he over-
heard union talk among Respondent's employees in the lunchroom as
early as 1975 or 1976.
JEFFREY MANUFACTURING DIVISION 43
department 915 (machine shop) lathe operator Terry
Daniel Boyter began telephoning United Steelworkers
Pittsburgh headquarters on that subject. After a few
more exploratory overtures, that Union's staff representa-
tive and organizer, Alfred L. Motley, met personally
with Boyter and several of his Belton plant coworkers at
a nearby Anderson, South Carolina, motel on May 10,
(1977).
The progress of that unionizational attempt, including
the promptly ensuing May 25 job discharge of Boyter-
who had been in Respondent's employ for over 4 years
and who undoubtedly, as borne out by Respondent's
own witnesses, was the sparkplug and chief activist in
the employees' unionization attempt-will now be
shown.
C. May
When Union Representative Motley first met with
Boyter on May 10 to discuss organization of Respon-
dent's Belton plant employees, Boyter was accompanied
by only one fellow worker. It was decided to hold a fur-
ther meeting the next day, May II, which was attended
by about a half-dozen employees, all of whom signed
union bargaining authorization cards, additional such
cards being distributed for signature by other employees.
Boyter, aided by a few others, thereafter, actively and
openly-to the conceded knowledge of Respondent's su-
pervisory and managerial officials-began soliciting other
employees to sign these union bargaining authorizational
cards. On May 13 (Friday), Boyter turned over to
Motley an orginial batch of at least 42 cards, in the com-
pany parking lot, where he (Boyter) was observed doing
so, as well as soliciting and obtaining the signature of an-
other employee, Ernest E. Gunnells, on one of the cards,
by Belton Factory Superintendent Eller through a plant
window. 7
On the following workday, Monday, May 16, while at
work, Boyter was approached by Factory Superinten-
dent Eller who asked him, "How are you doing? How's
your extracurricular activities going?" When Boyter an-
swered, "What are you talking about," Eller replied,
"You know what I'm talking about," to which Boyter
responded, "They're going OK." This account by Boyter
is not effectively disputed by Eller, who testified merely
that he was unable to "remember" such a discussion.
Preferring Boyter's better recollection, firmly adhered to
on cross-examination, over Eller's defective recall, I find
this instance of interrogation, alleged in paragraph 7(a)
of the complaint, 8 established.
On the same day, May 16, according to Respondent's
employee Larry Horne, then employed in department
914,9 Horne was also approached at work by Factory
7 Established by credited testimony of Respondent's department 914
welder-fitter Ernest E. Gunnells (in its employ over 10 years), corrobo-
rated by credited testimony of department 914 employee Larry Horne as
well as of Boyter.
8 All complaint references are to the second amended consolidated
complaint.
9 When he testified at this hearing, Horne was still in Respondent's
employ. That circumstance, we have been instructed, weighs in favor of
such a witness' credibility, since he testifies at risk of employer displeas-
ure and retaliation Georgia Rug Mill. 131 NLRB 1304. 1305. fn. 2 (1961).
Superintendent Eller, who inquired, "What is the prob-
lem?" Horne countered, "What probelm?" Eller then
asked, "Why is everybody signing those cards?" Horne
answered, "I don't know." Eller pursued, "Why did
you?" Horne indicated he was being paid less than he
thought he deserved. Eller responded, "[I can't] under-
stand why 46 people had signed them."10 Eller's testimo-
ny regarding this episode, persuasively recounted by
Horne, is that he is unable to "recall" it but he denies he
ever "ask[ed]" Horne whether he had signed a card or
told him that he "could not understand why 45 people
had signed union cards." Considering Eller's at least par-
tially defective recall, Horne's persuasive testimonial de-
livery, and comparing the testimonial demeanor of the
two witnesses as observed, I credit Horne's described
testimony and find unlawful interrogation (complaint par.
7 (a)) as well as creation of the impression of surveil-
lance, through Eller's purporting to advise Horne that he
knew exactly how many union cards had been signed
(complaint par. 7(b)), established.
The complaint (par. 7(b)) further alleges that on May
16 Respondent's foreman, McCurry, also created the im-
pression of surveillance of union activities. General
Counsel's evidence concerning this consists of the testi-
mony of employees Horne and Boyter. Horne testified
that, shortly after Factory Superintendent Eller had indi-
cated to him (as described above) awareness that 46
union cards had been signed, Horne asked the depart-
ment 915 foreman, McCurry, how Eller knew there
were 46 cards, to which McCurry responded that he did
not know. Later that morning, when Horne saw Boyter
at McCurry's desk, Horne remarked to McCurry, "Kay
[McCurry], tell Terry [Boyter] how many cards we have
got," to which McCurry replied, "46 cards." Boyter's
account of this episode is essentially the same as that of
Horne. Although McCurry's account is substantially dif-
ferent, even crediting Horne's account, as corroborated
by Boyter, I do not find the allegation that McCurry
created the impression of surveillance sustained, inas-
much as, for aught that appears, McCurry's knowledge
as to the purported number of union card signers was de-
rived from Horne and, when Horne later asked McCurry
to tell Boyter (in Horne's presence), McCurry merely re-
peated what Horne had told him (McCurry). Under
these circumstances, crediting Horne's (and Boyter's) ac-
count, it would be strained and unreasonable to find that
McCurry created (to Boyter) the impression of surveil-
lance over union activities about which Horne himself
had informed McCurry and then later asked McCurry to
pass on to Boyter. I accordingly find this alleged in-
stance, by McCurry, of creation of the impression of sur-
veillance, not sustained, and grant the motion of Respon-
dent's counsel, upon which decision was reserved at the
hearing, to dismiss the same. (In his post-trial brief, Gen-
eral Counsel moved to delete the allegation. The motion
is granted.)
The testimony of Respondent's supervisors and manag-
ers establishes that they were aware of the union card so-
enfd. as modified 308 F.2d 89 (5th Cir. 1962); Witz v. B. A. C Steel Prod-
ucts. Inc., 312 F 2d 14. 16 (4th Cir. 1963).
'o On cross-examination, Horne adamantly and convincingly denied he
mentioned 46" to Eller--"No, sir, no way"
44 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
licitational and organizational activities described, and
that Respondent waged a seemingly determined counter-
campaign to keep or wean away its employees from
union affiliation. For example, on May 17, on the heels
of the inception of the union organizational drive, Re-
spondent held plant rallies of groups of employees, ad-
dressed by its top management officials Etchberger
(Etchburger) and Zwick, as well as Franklin Ford, at
which there was displayed a 24- by 18-inch enlarge-
ment' of the union card, with some of its words under-
lined, and employees admonished not to sign. 2 Accord-
ing to Company Personnel Director Frank Ford, Etch-
berger and Zwick told the assembled employees that
"We [have] a good operation [and don't] need any out-
side people." Employee Horne's query, "If the union
couldn't do us any good, why [is the Company] fighting
it," elicited the management response that "[We don't]
want any third parties around [here]." And, further ac-
cording to Personnel Manager Ford, the Company not
only conducted preelection meetings with its employees
but also posted counterunion notices on its bulletin
board(s). ' 3
The complaint (pars. 7(a), (b), and (c)) alleges that on
May 17, following the incidents already detailed, Fac-
tory Superintendent Eller engaged in further improper
interrogation and solicited employee grievances in order
to undermine the organizational campaign, and also con-
veyed the impression of surveillance over union activi-
ties. As to these, Boyter testified that on that day Eller
once again approached him at his workplace and in-
quired of him, "How is the union going?" To Boyter's
answer, "It's going OK," Eller rejoined, "Well, I'm
sorry to have let everybody down . . . [I don't] think
we need[ed] a third party . . . to talk to everybody . . .
if you've got a problem." Certainly it is reasonable to
regard this as at least an implied assurance-designed to
keep the Union out and drive a wedge between it and its
adherents, as is familiar to the Board in its accumulated
industrial relations administrative experience-that the
employees' existing problems would be taken care of if
the employees forsook the Union. Pursuing this further,
Eller then asked Boyter what his problems were. Point-
ing to Maintenance Foreman Lowden (Lauden), Boyter
said, "That's one of the problems right there," with Eller
suggesting that if he felt Lowden was a "bastard" Boyter
should inform PLant Manager Zwick (Eller's superior)
about him, as well as about Foreman Matheson (whom
Boyter had also mentioned). When Boyter asked Eller if
he could get the employees more money, Eller said he
did not know. To Boyter's query of how Eller knew
about the Union, Eller replied, "I just know" and had
known about it for 2 weeks. That afternoon, after work,
" Ford testified that it was he who prepared and delivered the cn-
largement to Plant Manager Zwick
12 While Personnel Director Ford denies the employees were told not
to sign, I credit the contrary testimony of General Counsel witness
Horne, indicating they were so admonished-particularly considering the
undoubtedly purposeful display or the blowup of the selectivcly under-
lined card (Ford professes inability to recall what was underlined) and
Ford's own testimony that Etchberger and Zwick pointed out to the (en-
ployees that "We Ihave] a good operation [and don't] need aily outside
people."
:' It is not here asserted that such postings were unlawful.
Boyter continued soliciting employees to sign union col-
lective-bargaining authorizational cards.
Concerning this episode, Eller testified that he was
unable to recall any conversation with Boyter on or
around May 17, although in general terms he denied ever
asking any employee anything about union activities. 4
Preferring the straightforward testimony of Boyter to
Eller's professedly deficient recollection and, on com-
parative testimonial demeanor as observed, preferring
Boyter's account to Eller's denial, I find the allegations
in question concerning interrogation and soliciting em-
ployee grievances '5 established by a fair preponderance
of substantial credible evidence, but I do not regard and
therefore do not find the allegation as to creating the im-
pression of surveillance as established in this instance.
Credited testimony of Respondent's welder-fitter
Ernest E. Gunnells, in its employ for over 10 years,t 6 es-
tablishes that about a week and a half after he signed his
union collective-bargaining authorizational card, i.e., on
or about May 22, he was approached at work by Fac-
tory Superintendent Eller, who inquired of him, "Well,
what do you think about this union thing?" Although
Gunnells answered "Well, Ted, I really don't know,"' 7
Eller persisted, "Do you think we need one," to which
Gunnells indicated that he would weigh the matter care-
fully.' The complaint (par. 7(a)) lists this as another in-
stance of unlawful interrogation. Eller denies he ever
asked Gunnells about a union or any employee anything
about union activity. Upon the basis of demeanor obser-
vations, I prefer and credit the testimony of Gunnells, a
highly impressive witness, over that of Eller, who re-
peatedly throughout his testimony professed recollective
deficiency or weakness, as well as a tendency toward
evasiveness and hedging. I accordingly find the allega-
tion sustained.
The complaint further alleges (par. 7 (a)) that still an-
other instance of improper interrogation occurred, in late
May or early June, by Respondent's foreman, Matheson.
Concerning this, Respondent's long-term (over 9 years)
employee Ronnie Lawson, still serving under Mathe-
son,' 9 testified that on the occasion in question, during
work Matheson remarked to him, "Boy, this place is get-
ting in a mess, isn't it," eliciting from Lawson the ques-
tion, "Well, what are you talking about, the union,"
drawing from Matheson the response, "Yes, the way
14 Eller recalled a conversation-certainly seemingly not the one re-
counted by Boyter--in which Boyter faulted Lowden for "standing over
the employee" too much, and in which Eller indicated he (Eller) had dis-
cussed it with Lowden's supervisor and hoped it would clear up.
', Concerning solicitation of enmployee grievances as violative of the
Act, cf., e.g, NIL.R.B. v F.xchange Parts Company. 375 U S. 405, 409
410 (1964); Hedstrom Company v. N.L.R.B., 558 F 2d 1137, 1142 (3d Cir
19771; .VLR.B. v Ithe Brovhill Company, 514 F 2d 655, 657 (th Cir.
1975); Landis 1ool Co.. Dniiion of/ Liton Industrie v N L. R. B. 460 F 2d
23. 24 25 (3d Cir 19721, crt denied 409 US 915; N...R.B. v Crown
Can Company, 138 F 2d 263, 267 (8th Cir 1943), cert denied 321 US.
769 (1944).
" See fn. 9, upra
(iutunnells had already signed a uniion card Cf Bonnie Bourne. an in-
dividual d/h/u Bourne Co. v L.R.B. 332 :.2d 47, 48 (2d Cir 1964),
that a false or c',asive answer by all employer I al employer question
about union menimbership or activity hetokens he restraintful and coercive
quality of the employer inquiry.
See Ih pr
lu See fn 9, rupra.
JEFFREY MANUFACTURING DIVISION 45
people are running around here trying to get these
[union] cards signed . . What do you think about it?"
Lawson replied, "Well, I don't know too much about the
union, I never have worked for one before." 20 Matheson
echoed that neither had he. Matheson, a witness who im-
pressed me unfavorably-in part because of his uncon-
vincing denial that he never reported to his superiors the
union activities he knew or had heard about, and his un-
convincing denial that he knew or asked what the plant
conferences of management with employees during the
union campaign were about, and his further unconvinc-
ing assertion that there was no management discussion
concerning the Union-denies any conversation with
Lawson other than "just talking about the strike [of] coal
miners." In contrast, Lawson impressed me, as I ob-
served his testimonial demeanor, favorably and his words
rang true to my ears. I accordingly find the complaint
allegation in question established.
May 25: Discharge of Terry Boyter
On May 25, after 6 years of employment with Respon-
dent, its employee Terry Boyter, the linchpin of its em-
ployees' union organizing attempts, was precipitately dis-
charged, under circumstances which will now be de-
tailed.
Boyter entered Respondent's employ, at its Belton fac-
tory, as an automatic machine (button-pressing) operator,
progressing to a radial drill press and then an engine
lathe, where he funtioned for 2 years in department 915
(machine shop, small assembly area) under Foreman
McCurry. Boyter's work history, prior to his advent into
union activism in exercise of rights assured to him by
Federal law, appears to have been unremakable, includ-
ing occasional reminders to him, as well as to other em-
ployees-to some perhaps more frequently than to
Boyter-by McCurry, "All right, let's go back to work."
Boyter's testimony that he never received or was shown
any written warning or expression of work deficiency or
dissatisfaction, is consistent with the testimony of Re-
spondent's managerial and supervisory officials that it
was not company practice to do that. Boyter's testimony
that his production was at times "over 100%" likewise
accords with that of Respondent's witnesses, and his tes-
timony is unchallenged that even Factory Superintendent
Eller commented favorably on his production.
On May 5, according to Boyter, 21 at or about 11:28
a.m. on the clock-2 minutes before the half-hour lunch-
time-he, as other employees regularly, proceeded to
wash his hands before lunch. He did not interrupt pro-
duction to do so; if he had started his next work task, it
would have run into his lunch period. On this particular
occasion, however, Foreman McCurry accosted him and
directed him to return to work. When Boyter pointed
out he could do nothing in the 2 (or less) minutes re-
maining before lunchtime, McCurry insisted he return to
work and added that he would be suspended for 3 days
if he declined to comply. When Boyter brusquely indi-
cated he would not return under the circumstances,
21 See Bourn,. fn 17 1, supra I aw.son ariound hen signed a union card
z1 The department '15 flireman, McCurr, ntr,a places the episode
about to be described on April 28.
McCurry instructed him to accompany him to Factory
Superintendent Eller's office, where, after the situation
was aired, Boyter complained that McCurry was "riding
my back." According to Boyter, after saying that a first
warning called for a 3-day suspension, the second for 2
weeks, and the third for discharge,2 2 Eller told McCurry
to "do what you want," jocularly admonished both of
them "Don't y'all fight," and then left. Thereafter, when
McCurry indicated he would impose on Boyter a 3-day
suspension without pay, Boyter told him that in that case
he would not return to his job, reminding McCurry that
it could take him a half hour to hone or braze a tool, or
even hours to make a tool-Boyter makes and repairs his
own tools, instead of taking them to the 200-foot distant
toolroom to await repairs-thereby presumably econo-
mizing on planttime as well as cost. Boyter also remind-
ed McCurry that it had always been customary for em-
ployees to wash up a few minutes before lunch, without
any question raised about it previously. To this, accord-
ing to Boyter, McCurry replied, "well, I'm going to let
you go this time. I'm not even going to write you up.
You're a good man. I hate to lose you." Accordingly,
after lunch, Boyter returned to work-with the threat-
ened 3-day suspension rescinded or not imposed. 2 3 Later
that day, Factory Superintendent Eller again commented
favorably to Boyter on his work, adding that McCurry
"just doesn't understand the way you work."
The events of May 25 preceding Boyter's discharge
early that afternoon were as follows, according to
Boyter, whose version is substantially consistent with
that of Respondent's witnesses, as will be shown. Around
12:30 he went to the bathroom. On his way back to his
work area, he took a sip of water at the fountain near the
maintenance area, whence an identified fellow employ-
ee 2 4 beckoned him and cautioned him not to talk about
union activities in the presence of Whitacre, who would
report it. As Boyter turned to leave, he observed the de-
partment 914 (strutural welding, fitting, and assembly)
Foreman, Matheson, standing there. Matheson asked
Boyter if there was anything wrong with his machine.
Boyter said no. When Matheson thereupon directed him
to return to his area, Boyter blurted out, "Why don't
you kiss my damn ass?" 2s Boyter insists that he was un-
aware that his own foreman McCurry, was temporarily
away and had asked Matheson to fill in for him. 26 Fol-
22 Boyter insists he knows of no application, other than his own case
here, of any such policy.
23 Respondent has produced no Boyter timecard or record for April
28 (or May 5) or the ensuing days to the contrary Indeed. Boyter's time-
card for the week ending May I (Resp Exh. 33), covering the 3 days
following April 28 (when, according to McCurry, the incident in ques-
tion occurred), shows he worked every day that week for a total of 47
hours (including hours of overtime); and his timecard for the week of
May 8 (Resp. Exh 35). covering the 3 days following May 5 (when
Boyter insists the incident occurred), likewise shows he worked all 5
days for total of 40 hours. Both timecards bear McCurrs's initials as
foreman
24 Prince called by neither side, Boyter's testimony in this aspect thus
standing unllcntradicted
25 [toyter nevertheless thereupon returned to his department (915).
' I credit Bhoyter as to this, particularly since not only was no ei-
dence adduced to the contrary, but, s oill he shossn both McCurry and
Matheson testified BoHler had not been so informed by them Boyter
kilt.. f onlN on,, prior ,iccasion, around a ear preiousls, when Mathe-
Continued
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing this incident, Boyter returned to his area, where
he asked a fellow employee where McCurry was and
was told he had left early. Around 2:45 p.m., Boyter was
summoned by Matheson to Factory Superintendent
Eller's office, where, in addition to Eller, Company Per-
sonnel Director Frank Ford was present. After indicat-
ing to Boyter that he could not speak to supervisors that
way (and Boyter pointing out he always had), 27 Ford
stated, "[We're] going to have to exterminate [you]" and
summarily discharged him then and there.
The testimony of Boyter, a witness who weathered
grueling cross-examination, as well as that of other wit-
nesses, indicates that he was the spearhead and sparkplug
of the union organizational campaign at the Belton plant.
It may be of interest to compare the level of union card
signing among the Belton plant employees before and
after Boyter's discharge, as shown by the following
chart: 28
Respondent's accounts of and explanation for its dis-
charge of Boyter are as follows.
As has been noted, Boyter worked in the Belton fac-
tory machine shop (department 915), under Foreman
McCurry, who was temporarily away on the afternoon
of May 25. Respondent claims that, in McCurry's ab-
sence, the adjoining department 914 (structural welding,
fitting, and assembly) foreman, Matheson, was temporar-
ily in charge of department 915, although Boyter persua-
sively and credibly denies awareness that McCurry was
away or Matheson in charge, and Factory Superinten-
dent Eller acknowledges that McCurry had been in earli-
er on the day in question and Eller concedes ignorance
of whether Boyter was made aware that Matheson was
temporally filing in for McCurry.
According to Eller, around 1:30 p.m. on May 25,
Matheson reported to Eller that after he (Matheson) ob-
served Boyter in the maintenance department following
a 20-minute absence from the machine shop, Matheson
asked Boyter whether he had any machine problems and
Boyter said no; that Matheson thereupon directed Boyter
to return to the machine shop, whereupon Boyter told
Matheson to "kiss my God damn ass." When-still ac-
cording to Eller-Eller questioned Boyter about this,
Boyter admitted making the remark but denied aware-
ness that Matheson was substituting as his supervisor in
temporary authority over him at the time. Later that
day, a "group decision" was made by Eller, Personnel
son may have temporarily substituted for McCurry, the usual practice in
case of McCurry's absence from department 915 being for senior machine
shop employee Hanks or Jordan to substitute for him.
27 Boyter insists that language of the type he employed to Matheson-
even in the absence of awareness that Matheson was temporarily filling in
for McCurry-was usual in the Belton factory In this, Boyter is support-
ed not only by credited testimony of other employee witnesses, but also,
as will be shown, to a degree by some of Respondent's witnesses. Thus,
Ernest E. Gunnells, in Respondent's employ at Belton for 14 years, heard
another, identified employee-still working there and not contradicting
him although called by Respondent as a witness-in all earnestness call
Foreman Matheson a "lying son of a bitch," as well as Boyter tell Fore-
man McCurry to "go to hell," without any disciplining; and Horne de-
scribed the Belton factory patios as including the expression "mother f-
er" and Boyter on various occasions calling Foreman Matheson a "son of
a bitch," without disciplining. In any event, as will also be shown, Per-
sonnel Director Ford testified unequivocally that the language used by
Boyter had nothing to do with his discharge
28 [Omitted from publication I
Director Frank Ford, and Matheson to discharge Boyter,
and that decision was summarily executed, resulting in
Boyter's discharge tout suite after 6 years of employment.
Eller assigns as the reason for Boyter's discharge the al-
leged fact that this was his "fourth offense," he having
allegedly been given three previous warnings 29 (Octo-
ber 30, 1975-G.C. Exh. 3; July 22, 1976-G.C. Exh. 4;
and April 28, 1977-G.C. Exh. 2) and one on the day of
his discharge (May 25, 1977), use of "profane remarks to
his supervisor" (Eller, G.C. Exh. 5), constituting him a
"fourth offender." 30
As to the alleged first of these "warnings," in 1975,
Eller was concededly not involved, and Boyter's fore-
man alone allegedly spoke to Boyter, whereas on the al-
leged second occasion (1976) Eller spoke to Boyter. As
to the alleged third occasion (April 28, 1977), Eller testi-
fied that he personally attempted to straighten out the
"conflict" between Boyter's foreman McCurry and
Boyter, the latter having complained to Eller that
McCurry was "riding my back," and Eller not wanting
to see Boyter discharged and apparently even overruling
an alleged recommendation of McCurry that he be sus-
pended for 3 days for not "stayfing] on his job." (It is
noted that this was around the time of the flareup of in-
tense union organizational activity by Boyter.) 31
Eller concedes that Boyter was a good machinist, per-
forming efficiently as such, during the entire 6 years of
his employment; and that, indeed, his work efficiency
rating at times even exceeded 100 percent. Concerning
the use of "profane remarks" in the Boston factory, Eller
maintains that, although profanity is not unusual there,
"profanity" of the type attributed to Boyter and consti-
tuting the alleged trigger for his discharge is unusual and
intolerable because it smacks of insubordination. As to
Eller's knowledge of union organizational activity at
Belton in general and on Boyter's part in particular,
Eller denies awareness on April 28 of either, within a
context, however, of also testifying that he is unable to
"recall" whether on or before that date (April 28)
Boyter spoke to him about a union. Eller concedes, how-
ever, that in May he not only heard rumors of union ac-
tivity in the plant from Foreman McCurry and other
foremen, but had direct personal knowledge of it
29 There are said to have been two additional "warnings" to Boyter, in
his personnel file-one dated June 24, 1971 (G.C. Exh. 8) and one dated
June 29, 1971 (G.C. Exh. 7). Eller conceded these had no bearing on
Boyter's discharge.
so Eller disclaims knowledge of whether Boyter was given copies of
these warnings, and asserts it is not his Company's policy to do so. It is
noted that the photocopy supplied by Respondent to the Board's investi-
gator of Boyter's alleged "3d warning" of July 22, 1976, does not indicate
any "previous warning" to Boyter, whereas the alleged original of that
form produced at the instant hearing (i.e., C.P. Exh. 3) does, suggesting
that the notation to that effect (i.e., checked box) on the alleged original
was made after a photocopy not containing that notation was supplied by
Respondent to the Board. Eller concedes, as does Personnel Director
Ford, that it was not the Company's policy to furnish copies to employ-
ees of written warnings placed in their file-notwithstanding the ambigu-
ous words "Has employee received other reports" (emphasis supplied) on
those report forms (e.g., G.C. Exh. 5). Finally, Respodnent's witness
Matheson, who signed the terminal disciplinary report form on Boyter
(G.C. Exh. 5), conceded that the checkmarks in the boxes on that form
were nor on it when he signed the form.
si According to Ford, Respondent's disciplinary warning system (G.C.
Exh. 6) was revamped in late 1977, subsequent to Boyter's discharge.
JEFFREY MANUFACTURING DIVISION 47
through seeing union handbills there early that month
(May), and that he was specifically aware of Boyter's
participation in union card solicitation; and that within
"an hour or less" after he learned it he (Eller) reported it
to his superior, Resident Manager Zwick,3 2 as well as to
Personnel Director Ford (who, Eller says, seemingly di-
rected the Company's antiunion campaign).
Unlike Factory Superintendent Eller, Personnel Direc-
tor Ford (who has functioned in that capacity since
1967) brought Respondent Resident Manager Zwick
(Eller's superior) into the Boyter discharge picture: al-
though Eller swore the decision to discharge Boyter was
the joint decision of only himself, Ford, and Boyter's
temporary fill-in foreman, Matheson, Ford testified that
it was Zwick who directed that Boyter be discharged if
he had no explanation.3 3 Ford supports Boyter's testimo-
ny that Boyter insisted to Ford, too (as well as to Eller),
that "I [Boyter] didn't know that Jim [Matheson] had
anything to do with me" on the occasion in question.
3 4
According to Ford, he told Boyter that in view of the
Company's appicable personnel policies as set forth in its
"Instructions for Administering Discipline" (G.C. Exh.
6), the Company had no alternative other than to dis-
charge Boyter.3 5
Personnel Director Ford concedes he was aware of
Boyter's union activities prior to his discharge and that
he was specifically so informed by Respondent's chief
executive official, Etchberger (Zwick's superior), on
32 I have grave difficulty in crediting Eller's testimony that, although
he was aware of the names of employees, including Boyter, who were
involved, he did not share this information with Zwick, and that Zwick
did not then and there ask him what employees were involved; and that
Zwick never indicated to him what his (Zwick's) course of action would
be. Later during cross-examination, Eller added that at a subsequent
meeting with Zwick, the week after he made the foregoing report to
Zwick, Eller furnished Zwick with a list of about a half-dozen employ-
ees, including Boyter, implicated in union card solicitation. Notwithstand-
ing the foregoing, at one point Eller testified he had no "knowledge" on
May 25 (the date of Boyter's discharge) of union activity on Boyter's
part; I discredit this.
33 This would seem to be at an extremely lofty level-indeed, near the
very top-of Respondent's managerial hierarchy, particularly in view of
Eller's testimony that not even he (Eller) ordinarily became involved in
employee discipline. A more probable explanation for the extraordinary
involvement of such high-level managerial personnel as Zwick and Eller,
more in line with the Board's accumulated generations of specialized ex-
perience in the world of industrial relations, is Boyter's preeminence in
union organizational card-solicitational activity among the Belton plant
employees, marking him as a prime target for liquidation from its em-
ployment.
34 On cross-examination. Ford conceded he gave no consideration to
this, indicating that, to Boyter's knowledge, Matheson was "a pan of the
management of the company."
a It is, however, noted that this statement by Ford to Boyter does not
appear to be accurate, since under the "Instructions for Administering
Discipline" cited by Ford (G.C. Exh. 6), discharge is not required but is
only to be "considered." and even then, usually but not invariably, only
after accumulation of three written "unusual conduct" reports "for the
same offense." Indeed, during cross-examination, Ford conceded that
under the cited personnel policy (G.C. Exh. 6), applicable at the time of
Boyter's discharge, Boyter's discharge was not required, and, further,
that-notwithstanding the cited written policy, Boyter's discharge was
not recommended by his foreman (McCurry) since his foreman was not
in the plant at the time and was not involved in the incident resulting in
that discharging. Ford leaves unexplained this conceded departure from
practice, in bypassing the discharged employee's foreman (McCurry),
or-since Boyter's discharge took place on the afternoon of May 25-
why he could not have waited until the following morning to consult
with Boyter's foreman (McCurry).
May 16-a little over a week prior to Boyter's dis-
charge-who told Ford that Etchberger had learned
from Eller during the previous week that "there were
some union cards in'the place" and (also from Eller in
the ensuing days) about Boyter's specific role in those
activities. It will be recalled (supra) that it was on May
17 that Etchberger, Ford, and Zwick held roundups of
groups of employees, displaying the enlargement of a
union card with underlingings and informed them that,
"We [have] a good operation [and don't] need any out-
side people."
Also contrary to Eller, Ford testified explicitly that
Boyter was not discharged for "profanity" or the words
he used to Matheson, but only for being away from his
work station. However, as to this, as established by cred-
ited testimony of Boyter, he was away from his work-
place for only an extremely short interval for the pur-
pose of relieving a toilet need, and his return to his
workplace was momentarily interrupted only to take a
sip of water at the fountain and to respond to a brief
beckoning call from a fellow employee-neither individ-
ually nor in the aggregate shown to be proscribed or un-
usual activities or work absences nor of such a nature as
to render believable the rigorous penalty imposed upon
him.
Without explanation, neither Zwick nor Etchberger
testified, thus leaving unresolved any conflicting testimo-
ny of their subordinates concerning their role in the dis-
charge of Boyter or in any other circumstances of the
case.
Concerning Boyter's discharge, the department 914
(not Boyter's department 915) foreman, Matheson-in
Respondent's employ for 17 years-testified that on the
afternoon in question (May 25) he was temporarily over-
seeing department 915 (Boyter's department) at the re-
quest of its Foreman McCurry made to him shortly
before noon. According to Matheson, between 12:30 and
1 p.m. he first noticed Boyter walking to the water foun-
tain, about 10 minutes later "talking" with a fellow em-
ployee in the aisle,3 6 and some minutes later in the main-
tenance department. There, when he asked Boyter if he
had a machine problem, Boyter first inquired of him,
"What the hell is it to you?"3 7 When Matheson there-
upon directed Boyter to return to his machine-without,
for aught that appears, informing Boyter that Matheson
was temporarily acting as Boyter's supervisor in the ab-
sence of McCurry-Boyter extended the aforementioned
inelegant osculatory invitation to Matheson. Matheson
testified that, when he displayed his report (G.C. Exh. 5)
of this incident to Eller, Eller instructed him to take it to
Ford, who later called him in, with Eller there, and
asked him to summon Boyter, whom Ford discharged
then and there, stating to him, "You know we can't tol-
a6 It is not suggested by Respondent that its employees may not talk to
each other, or go to the fountain or toilet without permission or only on
schedule.
37 This seems a hardly likely response if Boyter had known Matheson
was in charge, even temporarily. The response suggests, rather pique on
the part of Boyter prompted by his seemingly not unreasonable belief
that Matheson was officiously intermeddling in a situation not only not
calling for intervention by anybody but also none of his concern
-
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erate this3 8 . . You're terminated as of now." Conced-
ing that "cuss words are used all over the shop" between
employees and supervisors, 3 9 including habitually by
Boyter, Matheson draws an attempted distinction be-
tween Boyter and others in that regard, characterizing
Boyter's tone as "demanding," in contrast, for example,
to Jerry Gunnells, whom Matheson respects as "a Chris-
tian boy, and he goes to church." Matheson concedes
there is no restriction against employees' going to the
fountain for a drink; and that he neither heard McCurry
inform Boyter, nor that he (Matheson) informed Boyter,
that Matheson was substituting for McCurry. Matheson
explained that other foremen, as well as Factory Superin-
tendent Eller himself, had on occasion also temporarily
filled in for the department 915 foreman, McCurry. After
first denying knowledge of any union activity by Boyter
prior to the latter's discharge, on further cross-examina-
tion Matheson acknowledged that he had heard
"rumors," from a professedly unremembered source, as
to such activity but not as to Boyter's involvement. 40
While stoutly denying that he ever reported or even
spoke about union activity to anybody-not even to his
immediate superior Eller or his own brother Preston
Matheson (a union activist, of whom Foreman Jim Math-
eson says it "would be hard for me to believe" he was
involved in union matters)-and while also incredibly
denying he was aware of what management was talking
to the employees about during the four or five 30-40-
minute employee assemblages it convoked during the
union campaign, Matheson made it a point to remark
that "I don't want no part of the union. I can't under-
stand the union . . . I [don't] believe in it." Characteriz-
ing Boyter, however, as "a real good worker ... a good
machinist," Matheson testified explicitly that he did not
recommend his discharge, and that, if Boyter had been
working for him as foreman on the aforedescribed inci-
dent, he would not have recommended his discharge.41
Finally, McCurry confirmed that he was not present
on the afternoon of May 25 when Boyter was discharged
and was not involved in that decision. McCurry has been
in Respondent's employ for about 12 years, including the
past 5 as foreman of department 915, machine shop small
assembly area. Although McCurry characterizes the
work efficiency of Boyter (who worked directly under
him for about 2 years preceding his discharge) as "round
100 percent," 42 he has faulted him in the past for some-
times leaving his machine unattended "more" than other
39 Ford's testimony. recounted above. will be recalled that Boyter's
language to Matheson played no role in his termination
19 Including the words "hell" and "damn" by female employee Sara
Mahaffey (McHaffey)-described by Horne as "Rowdy . She cusses
everybody out"--these, however, being expressions which Matheson
would not categorize as a "cuss word . . in my terminology."
'40 In view of the quantitative level and open aid unconcealed nature
of those activities by Boyter, coupled with the fact that Matheson was
one of only four foremen at the time I regard this as difficult to believe.
41 This testimony by Matheson may be contrasted to that of Eller.
.supra, that the decision to discharge Boyter was a "group decision" of a
group including Matheson Eller in no way indicated in his testimony
that Matheson interposed a dissenting opinion.
42 But, according to McCurry. "any good operator" could attain 100
percent or even higher efficiency, since "the standards were lax." If this
is true, it is surprising why Respondent has failed to revise what appears
to be its unconventional definition of "100 percent "
employees, within a context of his (Boyter's) having a
work habit spetrum of "good" to occasionally "extreme-
ly poor." McCurry allegedly "warn[ed]" Boyter when
he was away from his work an excessive time-once in
1975 (G.C. Exh. 3) and once in 1976 (G.C. Exh. 4), but
on neither annual occasion did he give Boyter a copy of
the warning or even show it to him, merely allegedly
telling him he was "writing [you] up." Allegedly on
April 28, 1977-this is the occasion which Boyter insists
(supra) occurred on May 5-McCurry wrote out a
"warning" to Boyter's file after McCurry observed
Boyter cleaning his hands just before lunchtime, employ-
ees being required, according to McCurry, to wash up
during and not before their 30-minute lunchtime. After
McCurry directed Boyter to return to his machine, al-
though McCurry is "not sure" whether Boyter indicated
to him there was nothing to do in the few minutes inter-
im before lunch, McCurry instructed Boyter to accompa-
ny him to Factory Superintendent Eller's office, where
McCurry imposed on Boyter a 3-day suspension without
pay and allegedly told him privately that he would give
him "one last chance" and "terminate him" in case of
"any more incidents."4 3 According to McCurry, when
he had to leave work for personal reasons around noon
on May 25, he asked the neighboring department 914
foreman, Matheson, to "look after my department"
during his brief absence. Matheson concedes that, al-
though on previous occasions he had notified department
915 employees of somebody else (e.g., Hanks or Jordan)
who would be filling in for him during his absence, on
this occasion (May 25) he did not so inform the employ-
ees.44 McCurry learned about Boyter's discharge when
he (McCurry) returned the following morning. McCurry
concedes he could have suspended for 3 days, rather
than discharged, Boyter for the episode here involved,4 5
and that Boyter was not the only employee who left his
machine unattended on occasion.4 6 Also according to
McCurry, there is no company rule or policy 4 7 requiring
an employee to be discharged for a "fourth offense." His
"absolute denial of knowledge of union activity at the
plant before Boyter's discharge impresses me as incredi-
ble,4 8 and is seemingly inconsistent with other portions
of his testimony.
43 This differs sharply from Boyter's account, as described above, that
McCurry assured him he would not even "write you up." On compara-
tive demeanor observations and because, in marked contrast to Boyter,
McCurry was vague and evasive and even demonstrated truculence
during his testimony, I credit Boyter. Furthermore, Boyter's timecards
lend support to Boyter's version, recounted supra, including fn 23, that
McCurry rescinded (or did not impose) the 3-day suspension under the
circumstances shown. McCurry agrees he told Boyter to return to work
after lunch.
44 McCurry claims he told Department Coordinator Donnie Hill.
Since, without explanation. Donnie Hill did not testify. there is no indica-
tion that Hill passed on this alleged information.
45 But cf. statement of Personnel Director Frank Ford to Boyter and
fn. 35, supra.
46 It is noted that there is no contention that Boyter left a running ma-
chine unatended on the occasion in question.
4 But cf testimony of Factory Superintendent Eller, supra.
48 Again, as in the case of Matheson (supra, fn. 40), I find this hard to
believe. for the same reasons and the fact that, as testified by Respondent
Personnel Director and witness Frank Ford, the top management of Re-
spondent as early as May 17 was conducting working time meetings with
Continued
JEFFREY MANUFACTURING DIVISION 49
After careful evaluation and consideration of the cir-
cumstances constituting and surrounding the discharge of
Boyter, within the frame of reference of the record as a
whole including issues of credibiity based on testimonial
demeanor, I am persuaded and accordingly find that his
discharge was not because of any work-related fault,
shortcoming, or discrepancy, but that it was at least in
substantial and controlling part because of his preeimin-
ent role in attempting to bring about that unionization
and collective bargaining at Respondent's Belton plant
which Respondent so strongly opposed.
In arriving at this determination, I have given weight
to the following among other considerations (including,
as I have said, credibility, to the extent pertinent, based
on my observation of comparative testimonial demea-
nor). To begin with, Boyter was an at least satisfactorily
productive employee of comparatively long standing in
Respondent's employ at Belton (6 years), with an alleged
"disciplinary" record of at worst a few aberrations-
some in the nature of ancient history, seemingly resur-
rected for defense of this case-not shown to be remark-
able or extraordinary at the Belton plant. Even Respon-
dent's witnesses characterize him as an efficient lathe-
man. Vulgarisms and "profanity" were not unusual at
Belton, any more or less, apparently, than they are in
many if not most industrial plants, rough factory speech
rather than polite tearoom talk being the rule rather than
the exception in such an environment. Furthermore,
Boyter's expression to Matheson was not intended as an
insolent, insubordinative challenge, since Boyter-
through no fault on his part-did not know that Mathe-
son was substituting for his foreman, McCurry; and, in
that context, it perhaps cannot be said that his offhand
expression was clearly unfitted to the occasion, since
Boyter not unreasonably assumed that Matheson was of-
ficiously dabbling in a trifling matter not of his concern
and in any case without justification or significance.
Moreover, the particular factory idiom utilized by
Boyter, particularly in this day and age with its prevail-
ing language style, cannot be regarded-particularly
within the context of the Belton factory idiom-as un-
usual, much less as "profane," 4 9 and certainly not such
as credibly to have warranted summary dismissal after 6
years of continuous employment with a commendable
performance record. Finally, notwithstanding Factory
Superintendent Eller to the contrary, Ford explicitly dis-
groups of employees, emphasizing blown up and underlined wording on
the union cards being openly distributed and signed. It is difficult for me
to accept that McCurry (as well as Matheson and Respondent's few other
foremen) were oblivious to all of this. In this connection, note has been
taken of McCurry's admission that he attended two supervisory meetings
concerning the Union. one possibly prior to Boyter's discharge.
49 Cf. e.g., in this regard, NL.R.B. . Thor Power Tool Company, 351
F 2d 584 (7th Cir. 1965). enfg 148 NLRB 1379 (1964); United States
Postal Service. 241 NLRB No. 61 (1979): Merryweather Foam Latex Com-
panvy. 214 NLRB 686, 694-695 (1974); Guerdon Industries, 199 NLRB 937,
940 (1972) Berl Pekin Corporation, 181 NLRB 1025 (1970), enfd. 452 F 2d
205 (7th Cir 1971); Butcher Bv Refrigerator Door Company, 127 NLRB
1360 (1960). enfd. 290 F.2d 22 (7th Cir 1961) Ni P. Nelson Iron Works,
Inc., 80 NLRB 788, 795-96 (1948); he Bettcher Manufacturing Corpora-
lion, 76 Nl.RB 526, 527, 532-537 (1948). See also NLR.B v M & B
Hedwear Co., Inc., 34 F2d 170, 174 (4th Cir. 1965) Caputo % Salz-
handler, 316 F 2d 445 (2d Cir 19h3), cert denied 375 US. 946
claimed Boyter's langauge on the described occasion as
the reason for his discharge.
The summary nature of Boyter's discharge, after his
long tenure of employment, and-seemingly contrary to
Respondent's own practice-without recommendation of
Boyter's own foreman, his absent regular foreman,
McCurry, or even of McCurry's temporary stand-in
Matheson (who expressly conceded he not only did not
but would not have recommended Boyter's discharge)-
is likewise highly suspicious, as is the extraordinarily and
perhaps unprecedentedly high level of top managemnet
at which the matter was handled. Also noteworthy are
the distinguishable, if not conflicting, reasons for
Boyter's discharge now suggested by Ford as distin-
guished from Factory Superintendent Eller. Boyter's pre-
eminence in union card solicitation, as well as leafleting
and other organizational activities which he had the
lawful right under the Act to engage in at Belton, was
open, unconcealed, and well known to Respondent,
which was and remains-as is its right, in turn, through
lawful means-opposed to the unionization of its plant
with the corollary necessity for collective bargaining
with its employees which unionization of the plant
would impose. As has often been pointed out, union
leadership and activity frequently lends substance to a
discharge whose basis might otherwise seem equivocal. 5 0
In my view, that is true here so far as Respondent's dis-
charge of Boyter is concerned. Indeed, under the cir-
cumstances shown and in the total context of the entire
case, it is the only explanation which fits all of the facts
and "stand[s] under scrutiny." N.L.R.B. v. Thomas W
Dant, Robert E. Dant, et al., d/b/a Dant & Russell, Ltd.,
207 F.2d 165, 167 (9th Cir. 1953). I am convinced and
find that the other reason or reasons assigned by Respon-
dent, to its private file, to Boyter at the time of his dis-
charge, and to me at the hearing, were and are pretex-
tuous, the real reason being Boyter's immediately preced-
ing burgeoning and seemingly dramatically successful
union organizational activity in exercise of his federally
guaranteed rights.
D. June
According to the complaint, following its May 25 dis-
charge of Boyter, Respondent continued its interrogation
of employees regarding their union sympathies and ac-
tivities; including on June 8 (complaint, par. 7(a)). Con-
cerning the latter, Respondent's first-shift roller assem-
bler, Herman Fant, who continues in its employ after 13
years,5 t testified credibly that he participated in the
union organizational campaign and attended all but one
of the union organizational meetings, including that of
June 7. On the morning after that (June 7, as well as
each other) meeting, at work, his deprtment 913 fore-
man, ray Douglas Lindsay (Lindsey), questioned him
about whether he had attended the union meeting the
night before. Each time Lindsay so questioned him, Fant
replied that he had attended the meeting. Lindsay flatly
no N.L.R.B. v Davidson Rubber Companv. 305 F 2d 166, 169 (st Cir
1962): NL.R.R v .VNabors, 16 F.2d 272, 275-276 (5th Cir 1952). cert
denied 344 U.S. 865 See also N.L.R.B. v Elias Brothers Big Boy, Inc..
325 F 2d 360, 366 (6th Cir 1963)
"' Cf fi 9. upra
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denies this, incredibly claiming that, with only a single
exception he "never heard the word 'union' during work
time" mentioned by any of his employees (later modified
to "only Herman Fant"), while conceding on cross-ex-
amination that "a couple of times" he told department
913 employees at their work machines that "we didn't
want a union, and we didn't need one." I observed
Herman Fant to be a believable witness, while, regretta-
bly, I am unable to say as much for Lindsay in at least
those aspects of his testimony relating to Fant, whom he
has known for over 12 years and whom I believe he
questioned about his union meeting attendance as tell-
ingly narrated by Fant.5 2 I accordingly find the alleged
episodes of interrogation as recounted by Fant, including
that on June 8, established as alleged in the complaint.
Notwithstanding the discharge of Boyter on May 25,
union organizational activity (pamphleting and card sign-
ing), including by Boyter, continued at and off the plant
in June as well as thereafter, but with the dramatic dro-
poff in union card signing shown above (sec. III, C,
chart) after Boyter's discharge.
E. July
Another union organizational meeting occurred on
July 26. As has just been found (D, supra), following 53
each of those meetings, the department 913 foreman, Ray
Douglas Lindsay, questioned his subordinate, first-shift
roller assembler and unit member, Herman Fant-a long-
term employee in its employ for over 13 years-about
his attendance there. For reasons already explicited, a
second instance of interrogation of Fant by Lindsay on
this subject, on or about July 27 as alleged in the com-
plaint (par. 7(a)), is likewise found to be established by
the same fair preponderance of substantial credible proof.
F. August
Union card collective-bargaining authorizational solici-
tation, as well as organizational meetings (G.C. Exhs. 26
52 The testimony of Respondent's witnesses Burgess, Hill, and Cason is
not inconsistent with that of Herman Fant, since they each testified they
never heard Lindsay question Fant. Moreover, Fant did not testify that
they were present when Lindsay questioned him as indicated, except Bur-
gess on occasion. As to the latter, I nevertheless credit Fant over Bur-
gess' disclaimer of having heard Lindsay question Fant. Burgess conced-
ed that his workplace was about 30 feet distant from that of Fant and not
within earshot, and also that his (Burgess') duties as setup man required
him to wander around the department. According to Burgess, he was
among thse who teased or "pick[ed]" at Fant for being "a union man"
and for seeing his car at union meetings.
53 In his testimony concerning the first of these episodes, Fant indicat-
ed it, as well as the others, occurred the day after the meeting-close to
a year prior to his testimony here. Although Fant's timecard (Resp. Exh
32) indicates he had a sick day on July 27, the date specified in the com-
plaint for this particular incident, I do not regard this as a sufficiently
significant "variance" to require dismissal of this allegation, since the
complaint alleges the dates set forth to have been "on or about" and
since, for reasons already explicated, I credit the substance of Fant's testi-
mony that he was indeed questioned concerning his attendance at union
organizational meetings, on the following mornings (in the case of July, it
could well have been on the morning of his return to the plant after miss-
ing a day for illness), in preference to Lindsay's sweeping, blanket denials
and unconvincing protestations of relative ignorance of the union activity
openly caried out among the employees and openly opposed by manage-
ment.
and 27), continued in August 4 A further incident of in-
terrogation of Fant by Lindsay is alleged (complaint,
par. 7(a)) to have occurred on August 31, following the
union meeting of August 30 (G.C. Exh. 27). For reasons
already set forth (D and E, supra), I find this allegation
likewise established.
G. September
Union card collective-bargaining authorizational solici-
tation continued among Respondent's Belton employees
in September.
On September 15, the Charging Party Union by certi-
fied mail demanded that Respondent recognize and bar-
gain with it as the duly authorized collective-bargaining
representative of a majority of Respondent's Belton fac-
tory production and maintenance employees. It was stip-
ulated at the hearing that this demand was received by
Respondent on September 16. The demand has at no
time been honored. The complaint alleges, the answer
admits, and I find the following to be a unit of Respon-
dent's Belton factory employees appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees em-
ployed by Respondent at its Belton, South Carolina,
facility, excluding office clerical employees, guards
and supervisors. 5 5
On September 16, the Union filed with the Regional
Director its petition for statutory election and certifica-
tion as exclusive collective-bargaining representative of
Respondent's Belton factory production and maintenance
workers. 56
The complaint further alleges (pars. 11, 12, 13, 14, 15,
and 18) that, although on and since September 15 the
Union has been selected and designated by the employ-
ees of the foregoing unit as their exclusive collective-bar-
gaining representative and has requested Respondent to
bargain with it as such, Respondent has refused to bar-
gain, thereby violating Section 8(a)(5) and (1) of the Act.
These allegations, substantially denied (except for ad-
mitted refusal to bargain) by Respondent, will be consid-
ered infra.
54 Also in August, according to Foreman McCurry, two of his subor-
dinates (Spruell and Jordan) asked him whether and how they could get
out of the Union After checking with Personnel Director Ford, on the
basis of what Ford told him, McCurry advised these employees they
could do so by filing a paper to that effect in their company personnel
files. McCurry testified he is "absolutely positive" this occurred after
Boyter was discharged. Although both Spruell and Jordan were called
by Respondent to testify as its witnesses, neither corroborated the forego-
ing, nor was any resignation or withdrawal document produced nor testi-
mony to that effect offered.
5" Although this description of the appropriate unit, as thus admitted
in Respondent's answer, is copied from the complaint (par. 10), it is noted
that the "unit agreed to be appropriate" is described as follows in the
January 12, 1978, report (fn. 1) of the Regional Director:
All production and maintenance employees at the Company's Belton,
S.C. plant, excluding all office clerical, professional and technical
employees, all guards and/or watchmen, and supervisors as defined
in the Act.
5e The parties' Stipulation for Certification Upon Consent Election
was approved by the Regional Director on September 30.
JEFFREY MANUFACTURING DIVISION 51
H. October
The complaint (pars. 7(a) and (d)) alleges further inci-
dents of improper supervisory interrogation, by Respon-
dent's department 911 foreman, Chester Mason, as well
as its department 913 foreman, Ray Douglas Lindsay;
and also of threats, by Mason as well as Factory Super-
intendent Eller, of reprisals to employees for engaging in
union activities, all in mid-October, shortly before the
statutory election held that month under Board auspices.
Regarding these, credited testimony of Respondent's
former welder Sammy Lee Dodson establishes that in
mid-October he attended an employer-convoked assem-
blage of plant employees addressed by General Manager
Etchberger, who, after reviewing all the existing employ-
ment advantages of which he indicated the employees
were beneficiaries, impressed upon the audience that
they should appreciate that the Company had been good
to them, and that they did not need and would fare
better without a union; and also 57 that any employee
caught talking about a union or passing out union cards
would be "fired immediately on the spot." Later that
day, Dodson, who was then attending or enrolled in a
technical training course at company expense, inquired
of Factory Superintendent Eller if the Company would
be hurt if there were to be a strike. Eller's response was
that not only the Company but also the employees
would be hurt. Eller then asked Dodson if he had yet
completed his (welding) school enrollment. When
Dodson said he had, Eller remarked that if the plant
became unionized all of Dodson's benefits "would be
taken away" by the Company. Still later the same day,
while at work in his department, Dodson was ap-
proached by his foreman, Mason, who asked him,
"Sammy, what do you think about the union?" To Dod-
son's answer, "I really don't know that much about
it,"5 8 Mason replied, "Well, I'm glad you don't ... "
adding that a union could "cut down your pay" as well
as result in reduction or elimination of existing employee
benefits including schooling, overtime, and vacations, as
well as in "the plant . . . close down." On the heels of
this, after several prior turndowns, Dodson was-about a
week before the statutory union representation election
held under Board auspices-given a raise, with Foreman
Mason reminding him, "Sammy . . . you couldn't walk
to the union people and ask for a raise, could you? . .. I
can help you with all your problems, and you can come
to me about your raise." Following this, Plant Superin-
tendent Eller asked him if he had gotten his raise, re-
marking to Dodson, "Well, I hope you understood."5 9
Further regarding these allegations, Respodnent's
former department 912 employee David A. Brooks testi-
fied credibly that in mid-October, a day after he
s; Dodson was unsure whether Etchberger said this on this particular
occasion or at some other time.
' Dodson had been one of the early union card signers (May 13: G.C
Exh. 43). See Bourne, fn. 17, supra.
59 In recounting this episode, one is ineluctably remined of the lan-
guage of Mr. Justice Harlan, for a unanimous court, in N.L.R.B. v. Ex-
change Parts Company, 375 U.S. 405, 409 (1964), analogizing to "the sug-
gestion of a fist inside the velvet glove" and that "Employees are not
likely to miss the inference that the source of benefits now conferred is
also the source from which future benefits must flow and which may dry
up if it is not obliged."
(Brooks) was apparently observed by Foreman Mason
and Factory Superintendent Eller talking to Union Rep-
resentative Motley right outside the factory after Brooks
had clocked out, Foreman Mason approached him at his
workplace and asked him, "What do you think about this
union that is going on down here," drawing from Brooks
the answer, "Well, I really don't know, you know,"""
followed by Mason's response, "Well, the best thing to
do [is) to vote 'no,' . . . we don't need a union" and that
"we had more benefits now than a lot of plants had."
Mason followed up on this by asking Brooks, "How do
you think you are going to vote?" I
Finally, there are additional alleged incidents of inter-
rogation of Herman Fant by Foreman Ray Douglas
Lindsay, on October 25, 26, and 27, again following the
union organizational meetings on the preceding days of
October 24 and 26; as well as on October 26, I day
before the election, when Lindsay asked Fant at his
workplace if he was a union man, this time eliciting from
Fant the response that he had changed his mind about
the Union,6 2 with a similar exchange on the morning of
the election, October 27, with Factory Superintendent
Eller, who asked him, "You're going to vote our way,
aren't you," to which Fant responded, "Yes, sir." 63
Concerning the foregoing, so far as material to the
complaint allegations under immediate consideration,
Factory Superintendent Eller testified that, in a context
of discussion with Dodson of the Company's being will-
ing to underwrite the expense of training Dodson as a
welder, he (Eller) was unable to "recall" whether men-
tion was made of the Union, although he professedly did
remember not telling Dodson of loss of school benefits in
the event of unionization. While Eller concedes Dodson
received a double pay raise (both a within-grade and a
merit) during the unionizational campaign, according to
Eller these were due only to improved attendance. As
for Foreman Mason, while denying he ever questioned
Dodson or Brooks concerning their union views, he
(Mason) likewise (as Eller) professed inability to "recall"
any conversation with Dodson on the subject of reduc-
tion or loss of company benefits in the event of unioniza-
tion. 6 ' Like Eller, Mason claims Dodson's double raise
just before the union election was unrelated to the Union
(or to any talk about the Union, which he denies), but
was because of work improvement.
I was favorably impressed with the testimonial demea-
nor of Dodson and Brooks, while left with residual
doubts about Mason because of his sweeping denials
coupled with his professedly deficient powers of recall,
within a context of selective recollection. Accordingly
preferring and crediting the described accounts of
Dodson and Brooks concerning Mason, as well as that of
Dodson and Fant in preference to the broad denials
within a context of selectively professed failures to
"recall" by Eller, and the additonal incidents of interro-
60 Brooks was also an early union card signer (May 13: G.C Exh.
129) See Bourne, n. 17, supra
6' Emphasis supplied
e2 See Bourne. fn 17. supra.
e6 Ibid
64 Mason conceded that he had on one occasion informed Dodson (al-
legedly in response to the latter's inquiry) that striking employees could
be permanently replaced
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation of Fant by Lindsay following union organizational
meetings, for reasons already set forth, it is found that,
with the exception of interrogation by Factory Superin-
tendent Eller in mid-October (complaint par. 7 (a)-
moved in General Counsel's post-trail brief to be deleted,
the motion being hereby granted) these further episodes
of interrogation, as well as of economic threats, essential-
ly as set forth in the complaint, 65 have been established
by a fair preponderance of substantial credible evidence
on the record as a whole.
Within a context of continued union organizational ac-
tivities and company-convoked counterunion assem-
blages of employees and bulletin board counterunion
postings, a statutory election under the Act took place at
Respondent's Belton factory on October 27. That elec-
tion resulted in a vote of 65 in favor of union representa-
tion and 63 opposed, with 5 (subsequently reduced to 3)
ballots challenged and unopened. Those challenges, as
well as union objections to employer conduct allegedly
affecting the election results, are considered infra.
Upon the foregoing findings 66 and the entire record, I
state the following:
CONC.USIONS OF LAW
A. Jurisdiction is properly asserted in this proceeding.
B. It has been established by a fair preponderance of
substantial credible evidence upon the record as a whole
that, under the circumstances described and found in sec-
tion II, supra, on or about the following dates, as alleged
in paragraphs 7(a), 15, and 17 of the second amended
consolidated complaint, Respondent through its follow-
ing agents, supervisors, and officials interrogated its fol-
lowing employees, in violation of Section 8(a)(l) of the
Act:
1977 Date or
Approximate Date
Agent/Super-
visor/Official
Ted A. Eller
Ted A. Eller
Ted A. Eller
Ted A. Eller
James Matheson
Ray D. Lindsay
Ray D. Lindsay
Ray D. Lindsay
Chester Mason
Chester Mason
Ray D. Lindsay
Ray D. Lindsay
Ted A. Eller
Employee
Terry Boyter
Larry Hornme
Terry Boyter
Ernest E. Gunnells
Ronnie Lawson
Herman Fant
Herman Fant
Herman Fant
SamTy Lee Dodson
David Brooks
Herman Fant
Herman Fant
Herman Fant
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
May 16
May 16
May 17
May 23
Late May
or early June
June 8
July 27
August 31
Mid-October
Mid-October
October 25
October 26
October 27
C. The evidence fails to establish that, as alleged in
paragraphs 7(a), 15, and 17 of said complaint, in or about
mid-October 1977 Factory Superintendent Ted A. Fller
interrogated any employee in violation of Section 8(a)(1)
of the Act.
D. It has been established by a fair preponderance of
substanital credible evidence upon the record as a whole
that, under the circumstances described and found in sec-
tion 11, supra, on or about May 16, 1977, as alleged in
paragraphs 7(b), 15, and 17 of said complaint, Respon-
dent through its factory superintendent, Ted A. Eller,
created the impression of surveillance by it over the pro-
R6 And also lure of economic benefits to Dodson my Miaon, about
week before the October 27 election, not alleged in the c mplainlt hut
comprising Unioni Objection 7 to employer conduct affectilng the lectioni
outcome. see he Representation Case, infra
tected concerted union activities of its employees, in vio-
lation of Section 8(a)(l) of the Act.
E. The evidence fails to established that, as alleged in
paragraphs 7(b), 15, and 17 of said complaint, on or
about the following dates, Respondent through its fol-
lowing agents, supervisors, or officials created the im-
pression of surveillance by it over the protected concert-
ed or union activities of its employees, in violation of
Section 8(a)(1) of the Act: Department 915 Foreman
Kay McCurry on May 16, 1977, and Factory Superinten-
dent Ted A. Eller on May 17, 1977.
F. It has been established by a fair preponderance of
substantial credible evidence upon the record as a whole
that, under the circumstances described and found in sec-
tion 11, supra, on or about May 17, 1977, as alleged in
" 'Recapitulated il appended chrlt, Appendix A [()OInitted frmntt publi-
ctillll i
JEFFREY MANUFACTURING DIVISION 53
paragraph 7(c) of said complaint, Respondent through its
factory superintendent, Ted A. Eller, solicited grievances
from employee Terry Boyter in an effort to undermine
its employees' protected concerted union organizational
campaign, thereby violating Section 8(a)(1) of the Act.
G. It has been established by a fair preponderance of
substantial credible evidence upon the record as a whole
that, under the circumstances described and found in sec-
tion II, supra, in mid-October 1977, as alleged in para-
graph 7(d) of said complaint, Respondent through its fac-
tory superintendent, Ted A. Eller and its foreman, Ches-
ter Mason, threatened employees with economic reprisals
in their employment in the event of unionization as a
consequence of engaging in union activities, thereby vio-
lating Section 8(a)(l) of the Act.
H. It has been established by a fair preponderance of
substantial credible evidence upon the record as a whole
that, under the circumstances described and found in sec-
tion II, supra, and as alleged in paragraphs 8, 9, 15, 16,
and 17 of said complaint, on May 25, 1977, Respondent
discharged, and has at all times since then failed and re-
fused to reinstate, its employee Terry Boyter, because he
engaged in concerted activities, protected under the Act,
with other of Respondent's employees, for the purpose
of collective bargaining and other mutual aid and protec-
tion, including membership in and activities on behalf of
United Steelworkers of America, AFL-CIO, Charging
Party in this proceeding, thereby violating Section
8(a)(3) of the Act.
I. Respondent's said discharge of, and its continuing
failure and refusal to reinstate, its employee Terry
Boyter, has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7, thereby violating Section 8(a)(l) of the Act, as
alleged in said complaint.
J. The aforesaid unfair labor practices and each of
them have affected, affect, and unless permanently re-
strained and enjoined will continued to affect, commerce
within the meaning of Section 2(6) and (7) of the Act.
K. The appropriate collective-bargaining unit of Re-
spondent's employees herein is:
All production and maintenance employees em-
ployed by Respondent at its Belton, South Carolina,
facility, excluding office clerical employees, guards
and supervisors. 7
L. Respondent's first and second defenses in its answer
should be overruled and dismissed. 6 8
THF RMNIDI),'
Remedy of the unfair labor practices here found re-
quires issuance of a cease-and-desist order and reinstate-
ment of unlawfully discharged employee Terry Boyter
to his former job (or, if it no longer exists, to a substan-
"' Further conclusions of law affecting this unit are contained in "The
Remedy." iifra
'I These defenses mercli allege affirmaflisely , in general terms, that the
complaint "fails to state a laini upon hich relief can hbe granted" (first
defense) which is patently insufficient and incorrect as s a matter of law;
and that Respondenlt dtnis, enlgaging in an' unfair labor practice (seond
defense). the conrtrar 5 h;laing hecn established herein Respondet's addi-
tional special defenscs are conslidered inira. under "l'he Remedy
tially equivalent job), without prejudice to his seniority
and emoluments,69 together with backpay and interest,
computable as explained in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), F W Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).70 Respondent should also be required
to preserve and make available to the Board's agents its
records for backpay computation and compliance deter-
mination; and to post the usual information notice to em-
ployees. 7
In view of the serious nature of Respondent's sum-
mary elimination of its long-term employee Terry Boyter
when he embarked on his right to engage in union orga-
nizational activity, within the context of its other unfair
labor practices designed to keep the Union out of its
plant by interfering with, restraining, and coercing its
employees in the exercise of their federally guaranteed
right to bargain collectively, while the Union assertedly
represented a majority of the unit employees through
valid representational designation cards even before the
statutory election (complaint, pars. 10-15 and 17-19),
General Counsel and the Charging Party Union seek a
Gissel 72 bargaining order without the possible necessity
73 for a rerun election here.
While I am of the view that Respondent's unfair labor
practices, particularly its summary discharge of chief
union organizational activitist Boyter, under the circum-
stances shown, would merit a Gissell bargaining order,7 4
the necessary predicate for such an order, in the circum-
stances here shown, under existing Board policy, is that
the Union have attained demonstrable majority member-
! Including, but not limited to, any uage rate as well as in-grade and
longesity increases in the interim, calculated as if he had not been termi-
nated
iS In the instant case, once again as for a considerable time, General
Counsel urges, with a strongly supportive showing in a supplemental
brief, that interest on backpaly be calculated at the more realistic rate of q
percenlt (loweer, the Board has consistently to date declined to allow
interest at that rate Persuasive as General Counsel's contentions appears
to me to be and much as the situation may require, it is for the Board and
not me to make such a change in its policy. Cf. Hansen Cakes, Inc, 242
NLRB No. 74 (1979)
7 1 Since discriminatory discharge of the leader of the employvees' orga-
nizational drive strikes directly at "the ery heart of the Act" (.4 Kra-
jewski Manufacturing Co., Inc., 180 NLRB 1071 (1970)). Respondel
should be required to cease and desist from violating the Act In any ay
N.L.R.B. v. Ent'rstle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
72 ;VL.R.B. v. Girrsel Packing Co. Inc., 395 US 575 (1969).
73 "Possible necessity," in view of the October 27 election oulcome.
which, as indicated above, stands as potentially favorable to the Union by
a vote of 65 to 63, with 4 ballots-subsequently reduced to 3, but still
possibly determinative of the election outcome-challenged The election
outcome thus teeters in balance, dependent on the resolution of those
challenges. If the remaining valid ballots when opened and counted
should turn the election outcome against the Union, the Union will hase
lost the election, and a rerun election would in that eent depend on
whether or not union objections to employer conduct said to have affect-
ed the election were sustained-if sustained, a rerun election would be
required. If, on the other hand, less than two votes against union repre-
sentation were to result from the valid unopened ballots, the Union
would in that event have won certification. The challenges and objec-
tions are considered nfra, "The Representation Case"
74 .V.L.R.B. s Sitton Tank Company, 467 F2d 1371, 1372 (th Cir.
1972); A'L.R.B. v Kostel Corp. d/bla Big Ben Shoe Store, 440 F.2d 347,
352 (7th Cir 1971 ); I..R B s Lou De Young .Marker Basket. Inc.. 430
F2d 912, 915 (th Cir 1970) But cf. .VL.R.B. s. Pilgrim Foods. Inc. 591
F 2d 10)1(st Cir 1978)
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship or representational status prior to a statutory elec-
tion under the Act. 7 5
Careful appraisal of the record here persuades me that
such showing has not been made by clear, satisfactory
proof. Notwithstanding the firm, strong, and credible tes-
timony of various card solicitors-notably, employee
Clyde Evans-as well an an imposing array of credible
employee card signers that they (the signers) were in-
formed of, read, and understood the purposes of the card
they signed as stated in its wording, and that they re-
cieved no indication that the cards were limited to the
purpose of a statutory election, nevertheless the testimo-
ny of principal card solicitor Terry D. Boyter, as well as
of other card solicitors and signers, in my opinion raises
sufficient residual doubt in the other direction to "dises-
tablish" any claimed union collective-bargaining repre-
sentational majority, as claimed herein, to warrant a bar-
gaining order without an election.
Thus, the principal union card solicitor, Boyter, testi-
fied, on his own his direct examination, that when he so-
licited card 76 signatures and distributed 15 or 20 cards
to other7 7 employees for solicitation:
I told them that this card was not to join the union,
it was to petition for the union, to get the union in
so that we could have a vote, and that we had to
have 60% or better of the cards, people signing the
cards before the union would petition to the gov-
ernment, and then we could have an election. (Em-
phasis supplied.)
While Boyter denies, in response to a leading-type ques-
tion on direct examination, telling them "that the only
reason for their signing the card would be to get an elec-
tion," he also testified that:
I explained it to them about it [i.e., the card] didn't
say that you were joining the union,' s it was just to
petition for the union. [Emphasis supplied.]
I told them that this was not a union card. I said, "it
doesn't mean that you are joining the union,78 it is
just to petition for the union, to get a vote for the
union." I said that "you would have to have 60 per-
cent or better before we could get the union in
here, or the government in here, to petition them."
75 It would seem that this requirement would not come into play in
case of a demonstrated majority after the election, in the context of a
continuing recognitional/bargaining demand. Cf. Gissel, 395 U.S. at 614;
First Lakewood Associates, etc. v. N.L.R.B., 582 F.2d 416 (7th Cir. 1978).
;a The language of the cards themselves is clear:
I hereby request and accept membership in the UNITED STEELWORK-
ERS OF AMERICA, and of my own free will hereby authorize the
United Steelworkers of America, its agents or representatives, to act
for me as a collective-bargaining agency in all matters pertaining to
rates of pay, wages, hours of employment, or other conditions of em-
ployment, and to enter into contracts with my employer covering all
such matters.
77 There is no testimony by Boyter as to what he himself was told
when he signed his own card. What he told others, according to his own
testimony, about to be quoted, may afford a clue.
?a But cf. the wording of the card, fn. 76, supra "I hereby request and
accept membership in the [Union] ... ."
I said that "it could help your wages, better bene-
fits"; I said, "but you would have to negotiate ev-
erything you worked for if the union did go in"
[emphasis supplied] .... Joey Turner [a fellow
employee] was walking up and wanting to know
what was going on, and so I told him that we were
signing cards to petition the union...."
On cross-examination, Boyter testified:
Q. And you told all of the employees who signed
their card that this was not really a union card but a
petition, is that correct?
A. A petition for the union.
Q. A petition for the union?
A. Yes.
A. I said that we had to have 60 percent of the
people there, their cards, we had to have 60 percent
or better before the union would petition for the gov-
ernment. [Emphasis supplied.]
A.... I said that they were not joining the
union, that it wasn't a union card."
In addition to his own card, Boyter identified 11 such
cards solicited by him directly,7 9 plus 15 to 20 distribut-
ed by him with such explanations to others,8 0 for solici-
tation by the latter, or a total of at least II or 12 and
potentially as many as 32 such cards.
In addition to the union card solicitor, Boyter, Union
Organizer Motley himself testified that he told employ-
ees at the organizing meeting on June 7 (at which
Herman Fant and Ronnie H. Lawson signed cards) that
"the quicker we got the majority of the cards, the
quicker we could get the election, and be on our way to
being represented by the United Steelworkers of America"
(emphasis supplied); and, also, that at the organizational
meeting on June 16 (at which Randolph Ligon and
James L. Greer signed cards) he told 15 to 20 employees
essentially the same thing. Of the foregoing employees,
Greer testified credibly that Motley told the employees
at the meeting that the cards "would be used for an elec-
tion." Still another union card solicitor, Herman Fant,
seemingly conceded in his testimony that in soliciting the
card for unit employee Darrell B. Foster (as well as the
card of his son Danny Ray Fant) he told the latter that
"the sole [or "only"] purpose of the card was to get an
election"; and that, in surrendering the card to Fant,
Foster specified that it was "for them to get equal rights
for a vote." (emphasis supplied). Yet another card solici-
tor, Elmer L. Kelly (now a foreman) testified that he
told his brother George W. Kelly that the card was "for
nothing but an election" (emphasis supplied).
Of the unit employees card signers themselves, with-
out necessity for going through the entire large list (80
including Boyter), William D. Spruell testified that, after
he had signed a card on solicitor Boyter's assurance that
it did not "mean joining the union" but only to "show
the union that we are interested in talking to them about
1 I.e., those of George M. Jordan, William D. Spruell, Joey L.
Turner, Samuel D. Lindsay, Roy P. Hall, Sam F. Hanks, Benjamin Cobb,
Larry W. Horne, Ernest E. Gunnells, Coley D. Prince, and Lester M.
Orvin.
80 I.e., Larry W. Horne and Coley D. Prince.
JEFFREY MANUFACTURING DIVISION 55
the union coming into the plant . . . to show that we are
interested in talking to the union to get them down here
and see what they have to say," when he voiced some
misgivings to Boyter after signing the card, Boyter again
reassured him that "it [the card] would not be considered
as a vote . .. .if we had enough, we could bring it up for a
vote; if we had enough cards" (emphasis supplied). Unit
employees Joey L. Turner, Samuel David Lindsay, and
Ernest E. Gunnells similarly testified, credibly, that in
soliciting their cards Boyter told them that "all it means
[is] to get the union in to come in and talk to us" (Turner),
"just to get a union representative to come down and talk to
the employees" (Lindsay), and "If we can get enough cards
signed, we can get a union representative here to explain the
union to us, and maybe we can get a vote on it" (E. E.
Gunnells; employee Roy D. Bell testified to the same
effect) (emphasis supplied). Unit employee Roy P. Hall
testified credibly that in soliciting his signature Boyter
informed him that "[I am] trying to get enough people to
sign cards to get an election" (emphasis supplied). Unit
employee Sam F. Hanks testified that when, in connec-
tion with Boyter's soliciting him to sign a card, he speci-
fied to Boyter that "it doesn't mean that I will vote for it
or against it," Boyter's response was, "Fill it out so that
we could get a vote to try to get the union in" (emphasis
supplied). The testimony of unit employee Jimmie R.
Sonefelt indicates that, although card solicitor Boyter did
not state the card was "only" for an election, he did say
it was "just to get an election started, or a vote" (emphasis
supplied). Unit employee Danny Ray Fant testified that
his father, Herman Fant, solicited his card signature by
telling him, "It doesn't say that the union was coming in,
but if they had a certain number that they would have
enough for an election to have a vote" (emphasis supplied).
His father, Herman Fant, conceded in his testimony that
in soliciting his son's card he told his son that "the only
purpose of the union card [is] to obtain an election" and
that his son told him after he thereupon signed the card
that he would not join the Union if it got in.
While the Supreme Court's admonition in Gissel is un-
mistakable that an employer who has enaged in substan-
tial violations of the Act in the interregnum between a
union's seeking bargaining representational status and the
outcome of a statutory representation election may by its
actions forfeit the right to insist upon an election to de-
termine the representation question and instead invite im-
position of an electionless bargaining order as the next
reasonable alternative, as the Supreme Court itself indi-
cated, at least ordinarily this hinges upon the union's
"majority" status.8 S The question remains, "majority" for
what? I take this to mean majority for either union mem-
bership or for union collective-bargaining (without, nec-
essarily, an election) purposes. Such a majority has
simply not been established here, in view of the de-
scribed testimony of Boyter and others, necessitating the
subtraction or not counting of at least the cards solicited
by Boyter, Herman Fant, and Elmer L. Kelly, and the
Roy P. Hall and Sam F. Hanks cards, from the alleged
majority. The gross union card count (i.e., counting all
cards as valid), as of September 16 (stipulated date of
Employer's receipt of Union's September 15 recogni-
tional/bargaining request), and as of October 25 (2 days
before the statutory election of October 27) here is:
Basis 82/; 83/ September 16 82/ October 25 82/
Excluding Boyter, but
including Ford and Whitacre 79/133 : 59% 79/138 : 57%
Including Boyter,
Ford, and Whitacre 80/134 : 60% 80/139 : 58%
Excluding Boyter,
Ford, and Whitacre 79/131 : 60% 79/136 : 58%
Including Boyter, but
excluding Ford and Whitacre 80/132 : 61% 80/137 : 58%
Including Boyter and Whit-
acre, but excluding Ford 80/133 : 60% 80/138 : 58%
"' Gissel, 395 U.S. at 596-597 and 614. No claim is advanced here of
extraordinary circumstances necessitating extension of or exception to
such a requirement on the theory that but for the Employer's actions the
Union would have attained majority bargaining authoriational (as distin-
guished from mere representation-election authorizational) status. Nor has
such proof been adduced here. Nor will it be speculated here as to what
extreme circumstances might impel the Board to issue an electionless bar-
gaining order where no actual card majority at any time has been estab-
lished; cf. United Dairy Farmers Cooperative Association, 242 NLRB No.
179 (1979); Gissel, 395 U.S. at 613-614.
s In each case, fractional numerators indicate gross total of union
cards signed, denominators indicate total unit employees (with "basis"
specifications shown), and percentages to closest percent. Figures are
based upon all union cards in evidence and stipulated unit compositions
on September 16 and October 25 (O.C. Exhs. 14 and 15), with parties'
indicated provisons thereto, and other stipulations of record.
an The status (rank-and-file or supervisory) of Ford and Whitacre, in
issue here, is considered in sec. VI, "The Representation Case.," infra.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that, in view of the aforequoted testimony of the
card solicitors and signers, at least the 11 cards solicited
by Boyter (including Roy P. Hall and Sam F. Hanks),
the 2 by Herman Fant (i.e., Darrell B. Foster and Danny
R. Fant), and the card by Elmer L. Kelly (i.e., George
W. Kelly) should not be counted, as they have not been
established to have been executed and delivered for a
purpose other than to procure a statutory election. It is
apparent that if even only these 14 cards-comprising
only two-thirds of the above 21 84 cards-do not, as I
find, because of not meeting required standards of
burden of proof and persuasion, merit being counted as
union membership or bargaining authorizational creden-
tials even without an election, and are therefore subtract-
ed from the figures shown on the foregoing chart of
gross card count, the Union did not have a majority of
employee membership or "authorizational" (i.e., bargain-
ing authorization even without an election) cards in the
unit:
Basis 85/ September 16 85/ October 25 8/; 86/
Excluding Boyter, but
including Ford and Whitacre 65/133 : 49% 65/138 : 47%
Including Bcyter,
Ford, and Whitacre 66/134 : 49% 66/139 : 47%
Excluding Boyter,
Ford, and Whitacre 65/131 : 50% 65/136 : 48%
Including Bcyter, but
excluding Ford and Whitacre 66/132 : 50% 66/137 : 48%
Including Bcyter and Whit-
acre, but excluding Ford 66/133 : 50% 66/138 : 48%
In considering whether to allow a Gissel electionless
bargaining order, it is necessary, upon the basis of the
total record in the particular case, to strike an important
balance-that between, on the one hand, by withholding
such an order, "rewarding" an employer who by his sub-
stantial unfair labor practices during the interval while
I.e., Terry D. Boyter, I employees solicited by Boyter as testified
by him (George M. Jordan, William D. Spruell, Joey L. Turner, Samuel
D. Lindsay, Roy P. Hall, Sam F. Hanks, Benjamin Cobb, Larry W.
omrne, Ernest E. Gunnells, Coley D. Prince, and Lester M. Orvin) as
quoted above; Herman Fant, Ronnie H. Lawson, Randolph Ligon, and
James L Greer (based on testimony of Union Organizer Motley, as re-
counted above); Darrell B Foster (based on his testimony as well as that
of Herman Fant); Roy D Bell; George W. Kelly; Jimmie R. Sonefelt;
and Danny R. Fant.
awaiting the election has destroyed any reasonable prob-
ability of the election outcome as a genuine reflection of
the employees' true representational desires, thereby jus-
tifying resort to the less preferred but still acceptably re-
liable alternative of a card count as the litmus; and, on
the other hand, the danger, by imposing such an order
without an election, of foisting an unwanted union on a
"8 With the same footnote provisos and explanations as in the immedi-
ately preceding chart, supra, fns. 82 and 83.
s8 It is noted that Respondent's Excelsior list (G C. Exh. 16) has six
fewer names than the stipulated list of employees on October 25 (G.C.
Exh. 15). These are (with their stipulated dates ol hire according to the
stipulated October 25 list (G.C. Exh. 15). E. D Brown (10/24). M. A.
Davenport (10/10), T. L Fleming (10/6). R. J McKee (9/27). R. H.
Pace (9/28), and J C Robinson (10/21)
JEFFREY MANUFACTURING DIVISION 57
majority of unit employees who have not even by argu-
able cards opted for it. If, by rote mechanical count or
because of necessary elimination of some cards as not
genuine or unreliable, there is no card majority, the basic
predicate underlying the Gissel electionless bargaining
order-i.e., the cards as a less but still acceptably reliable
indicator of the employees' desires (Gissel, 395 U.S. at
595-600 and 601-604) is undermined, leaving no basis for
such an order.8 7
I am, of course, aware of the time-honored Board rule
that-at any rate absent circumstances which I believe
were present here, including at the very best equivocal
testimony involving such expressions, concededly used,
as "petition . . . the government" and "election," in the
context of assuring employees that they were not "join-
ing" or becoming "members" (despite the wording of the
cards) and that the cards were "not union cards"-fail-
ure to limit the use of such cards "solely" or "only" to
an election does not preclude their use for other pur-
poses,88 and much more recent instruction from the Su-
preme Court that this may extend even to an electionless
bargaining order.s 9 However, I am also aware of the
Board's,9 0 as well as the courts', 9 ' caution that the
"rule" involving such words as "solely" or "only" is not
to be applied mechanically, but that resort is necessary to
the "totality of circumstances surrounding the card so-
licitation"9 2 even though, in that process, delving into
employees' subjective thoughts, afterthoughts, and post-
signing ruminations is to be avoided.9 3 In the instant
case, however, no such delving is required. As has been
shown, in my opinion, card solicitors' own descriptions
and explanations to a sufficient number of employees, to
induce their execution of the cards in question, con-
firmed if needed by testimony of those as well as other
employees, were of such character at least arguably to
indicate that the purpose of the cards was designed for
or essentially limited to petitioning or voting purposes in
an election. The testimony of important General Counsel
witness Boyter in regard to those cards is certainly not
clear, convincing, or persuasive to the contrary. When
added to the aforequoted testimony of other witnesses,
the conclusion is in my opinion compelling that General
Counsel has failed to meet the burden of proof and per-
87 Whether or not it would under given circumstances suffice (cf.
Gissel, 395 U.S at 613-614), in the instant case there is neither showing
nor contention that but for Respondent's unfair labor practices a true ma-
jority of cards would have been attained. See fn. 81, supra.
¢8 Cumberland Shoe Corporation, 144 NLRB 1268 (1963), enfd. 351
F.2d 917 (6th Cir. 1965); principle reaffirmed in Levi Strauss & Co., 172
NLRB 732 (1968), which met with Supreme Court approbation in Gissel.
supra, under its analysis there explicated.
89 Gissel, 395 U.S. at 584 and 606-609.
90 Levi Strauss d Co., supra, fn. 7 (1968), quoted with approval in
Gissel, 395 U.S. at 607-608; Keystone Pretzel Bakery, Inc., 242 NLRB No.
77 (1979).
"i Gissel, 395 U.S at 607-608 and fil 27.
l2 Ibid.
9 GseL, 395 U.S at 608 See also Texaco, Inc. v. ArL.R.B., 436 F.2d
520, 524 (7th Cir 1971): A'L.R.B. . ..4merican 4rt Industries, Inc., 415
F.2d 1223, 1228-29 (5th Cir. 1969), cert denied 397 U.S. 990 (1970); In-
ternational Union of Electrical Radio and Machine Workers AFL-CIO
[S.. C Manufacturing Company] .V\L.R.B., concurring opinion of Jus-
tice Burger 352 F.2d 361 at 363 364 (D.C Cir. 1965), cerl. denied 382
U.S. 902 (1965); V.L.R.B. v. Cumberland Shoe Corporation, 351 F2d at
920; Levi Strauss, 172 NI R at 734 735
suation which are his9 4 in regard to these cards-not re-
quiring or warranting an affirmative finding in this re-
spect by the trier of fact in this administrative proceed-
ing, or, consequently, justifying the extraordinary
remeby of a Gissel electionless9 5 bargaining order. The
application for such an order should, accordingly, in my
opinion, upon the facts and the law and in the exercise of
discretion, be disallowed in this case.96
THE REPRESENTATION CASE
We turn now to the representation case (Case I -RC-
4416), here by consolidation, in which certain challenges
to ballots (by both the Petitioner Union and the Employ-
er) and objections (by Petitioner Union) to alleged em-
ployer conduct affecting the election results have been
referred here for hearing and recommendations to the
Board.
A. Challenged Ballots
As has been indicated, the result of the October 27
election stands at 65 votes in favor of Petitioner Union
and 63 against, with 4-subsequently reduced to 3, but
still determinative-ballots challenged. These are the bal-
lots of Terry D. Boyter, challenged by the Employer as
no longer in its employ and for that reason ineligible to
vote;9 7 and the ballots of William Ford and Walter Whi-
tacre, challenged by Petitioner Union on the basis that
their supervisory status excluded them from the bargain-
ing unit and therefore rendered them ineligible to vote.
The challenged ballots remain unopened and uncounted.
1. Terry D. Boyter
In view of the finding and disposition in the compan-
ion consolidated complaint case, supra, that Boyter's dis-
charge was an unfair labor practice in violation of the
Act by Respondent/Employer, Boyter was entitled to
vote in the election, and his ballot should be opened and
counted. 98
94 Administrative Procedure Act, 5 U.S.C. Secs. 556(d) and 706(2)(E):
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 230 (1938); Willa-
point Oysters. Inc. v. Ewing, 174 F.2d 676, 690, 691 (9th Cir. 1949);
,L.R.B. s. Bell Oil & Gas Co., 98 F.2d 406, 410 (5th Cir. 1938);
;LR.B. v A. S. Abell Co., 97 F.2d 951, 958 (4th Cir. 1938); Attorney
General's Manual on the Administrative Procedure Act 75 (1947).
95 e., without resort to the balloting results in the October 27 elec-
tion.
g9 This disposition of the application for the Gissel bargaining order
remedy renders it unnecessary to pass on Respondent's third, fourth,
fifth, sixth, and seventh defenses in its answer, which will accordingly be
dismissed as moot. Also in view of this disposition, it is likewise unneces-
sary to address other important questions involving the validity of certain
specific cards, such as those which, while allegedly filled out by employ-
ees, were not signed (G.C. Exh. 33: James . Mercer; G.C Exh. 58:
Jimmy R. Curry; G.C. Exh. 80: Roy Hall; G.C Exh. IIl: Gordon A
White), or. seemingly printed rather than signed (G.C. Exh. 47: Jim
Brown Latimer; GC. Exh. 51: Betty J. Pruitt; G C. Exh. 55: Robert
Crosby Edwards; G.C. Exh. 56: Willie Louise Jackson). Of the forego-
ing, only employees Curry and Hall testified; other cards were identified
by their solicitors
97 Challenged also by the Board agent as not appearing on the Em-
ployer's Excelsior list.
9" Siou.s (Citv Brewing Company, 85 NLRB 1164. 1166 (1949).
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. William R. Ford, Jr.
The ballot cast by William (Billie) R. Ford in the Oc-
tober 27 election is challenged by Petitioner Union on
the ground of Ford's then supervisory capacity, present-
ing the issue here. Much testimony, on both sides, as
well as some documentation, was adduced on the ques-
tion.
The Employer's burnout operator Clyde Evans, in its
employ for over 13 years, 99 testified credibly that Ford
was the person who told him what to do and from
whom he took orders as his "boss" in department 912
(welding and assembly) in 1977, until Ford's replacement
by Thompson at the start of 1978; and that, in connec-
tion therewith, Ford (as Thompson subsequently when
he replaced Ford) gave him daily instructions, time off,
and job-related warnings or admonitions, during Chester
Mason's tenure as foreman of both departments 911
(steel, fabrication) and 912 (welding and assembly).
Around March 1977-while Ford, according to the Em-
ployer's "Personnel Job Record" (Resp. Exh. 7) held the
formal job title of "Dept. Co-ordinator"'°° on its "Indi-
rect Payroll"'t°t-Ford and many as 10 other depart-
ment 912 employees were instructed by that depart-
ment's foreman, Chester Mason, "not to look to [me-
i.e., Mason] any longer . . . for any work, or any in-
struction ... [but] to look to Mr. Ford . . . that Mr.
Ford was in charge of [you] .... [You] receive [your]
orders from Billie Ford." From then on, after Ford
"took over" from Mason, Evans' work was no longer as-
signed to him by Mason but by Ford, Evans went to
Ford with his job problems, Ford authorized procure-
ment of materials needed by Evans, Ford alone had a
desk in department 912, and Ford walked around over-
seeing the employees of that department.' 0 2 Evans was
explicit in his testimony that, from the time of Mason's
foregoing announcement to the department 912 employ-
ees through the time of the election, Mason spent less
time in that department and that Evans as well as the
other department 912 employees took their work orders
from Ford and carried them out-just as they previously
g See fn. 9, supra.
'00 According to the Employer's "Job Rating Specifications" and "Job
Description" for the position of "Departmental Coordinator" for "Dept.
911 & 912" (Resp. Exh. 30), that person is among other things "Responsi-
ble for the movement of materials through departments in accordance
with operation sequences and production schedules to insure an uninter-
rupted flow of work and to assure that progress conforms with overall
manufacturing planning and shipping dates"; he also "Perform[s] liaison
between the Production Control Department Foreman, et al., to assist in
clearing difficulties and delays," "Followls] up on rush orders, schedule
changes, material shortages and other conditions affecting schedules,"
"May be required to work in other areas, depending on workload and
production requirements," and is only "Under general supervision,"
These responsibilities and this status, involving correlative powers, could
well place their possessor within the supervisory ambit as broadly defined
by Sec. 2(11) of the Act.
101 As described by the Employer's factory superintendent, Eller, and
its foreman, Mason, employees on the Employer's "indirect payroll" are
"non-production employees," whose pay, unlike that of rank-and-file pro-
duction employees, is charged to their department as departmental over-
head (instead of being translated directly into job-time/materials compo-
nents of customer billings).
101 Ford also moved materials around by forklift if nobody else was
available-i.e., forklift operator Brinson, who also took orders from
Ford.
had from Mason. 103 Evans credibly recounts requesting
time off from Ford, in order to be with Evans' wife in
the hospital, in or around September (1977)-about 7
hours-with Ford authorizing that absence on the spot,
and Evans reporting to Ford on his return. Although,
according to Evans, subsequent to the election he ob-
served Ford on occasion setting up a machine in depart-
ment 911, he had not observed Ford doing this (except a
bulldozer on occasion in department 912) between the
time of Mason's aforedescribed announcement and the
time of the election.' 0 4 Also according to Evans, the
nature of Ford's duties changed when Thompson re-
placed him in supervisory status in department 912 in
January 1978. But, between the time of Mason's aforede-
scribed announcement through the time of the election,
Evans' testimony is clear and credible that Evans regard-
ed and treated Ford's directions to him as his employer's
orders required to be carried out by him.
Evans' testimony concerning Ford is essentially cor-
roborated by that of the Employer's former department
912 employees Dodson and Brooks, who also swore they
worked under Ford. However, Dodson and Brooks
place the date of Mason's announcement to department
912 as in or around September, at some time before the
election. Thus, Dodson (who in October worked in de-
partment 911 as well as 912) testified credibly that the
department 912 foreman, Mason, announced to that de-
partment's employees that thenceforward they would get
their instructions and orders from Ford (rather than from
Mason, as previously). At the same time, Ford was en-
trusted with keys to the departmental cabinets and draw-
ers.' 0°5 Although the highest pay grade in department
912 was a 7 (with Dodson a 4), Ford alone occupied
grade 9.106 After Mason's announcement, Dodson went
to Ford, instead of to Mason, for equipment and materi-
als authorizations. As in the case of Clyde Evans (supra),
Dodson's testimony is utterly clear (and credited) that
after Mason's aforedescribed announcement Ford (in-
stead of Mason) directed Dodson as well as the other de-
partment 912 employees what to do and they complied
with his orders.'0 7 Furthermore, after Mason's an-
nouncement, Dodson went to and obtained any desired
time off from Ford instead of Mason. On one occasion
during this period, Dodson heard Ford admonish an
identified employee (Wilson), "If you can't do the job,
you can go home," whereupon the employee left. When
103 Ford also distributed, to department 912 employees, work packets
which he assembled or processed, containing documentation needed to
carry out customers' orders, to which Ford added appropriate shaping
templates and determined which orders were to be done by each employ-
ee as well as the priorities to be accorded to each order (although a
"rush" order would be so marked on the accompanying documentation).
104 Evans occasionally observed Foreman Chester Mason also setting
up machines, including before and after Mason's aforequoted announce-
ment to department 912 employees.
'0O Dodson also testified, like Clyde Evans (supra), that thencefor-
ward, in contrast to previously, Ford operated a forklift only in the ab-
sence of the forklift operator.
o10 Confirmed by Factory Superintendent Eller in his testimony, al-
though Eller indicated there was no employee in department 912 at grade
7 either, thus placing Ford three grades above the next highest ranking
employee there.
'I' Dodson's testimony also indicates that after the election Ford did
setup work and was later replaced in his supervisory capacity by Thomp-
son-who was trained by Ford.
JEFFREY MANUFACTURING DIVISION 59
Dodson asked Ford what was wrong, Ford answered,
"He [Wilson] didn't do [the job] and I told him to
go." 10 8
The Employer's former department 912 employee
David A. Brooks, in its employ for about 4 years and an
impressive witness, similarly testified credibly that in
September (or early October) Mason assembled all de-
partment 912 employees and anounced to them that
"[You] will be taking [your] work orders from Billy
Ford. .... He [will] be in charge of anything that [you]
needed, tools or equipment, and if [you have] any prob-
lems. . . see him." Prior to this, these had been Mason's
functions. Around mid-October, shortly before the ele-
tion, Brooks witnessed a discussion between Ford and
department 912 employee Wilson-the same one as testi-
fied about by Dodson, (supra)-wherein Ford told
Wilson that he would do what Ford told him to do or
get another job; and, after Wilson visited Factory Super-
intendent Eller or Foreman Mason, Wilson complied.' 0 9
Brooks has also on a number of occasions, the same as
other employees (for example, William C. King'10), re-
quested and obtained time off from Ford. On several oc-
casions when Brooks asked Mason for time off, Mason
referred him to Ford," ' as also did Factory Superinten-
dent Eller on an occasion when Brooks asked Eller di-
rectly.l 12 Ford has also distributed Brooks' paychecks to
him, in Mason's absence. When Ford directed him to
move from one job to another, Brooks complied, since in
Brooks' words, Ford "was in charge of the department."
Brooks also confirms that Ford, like or together with
Mason (only), had a departmental desk to which-as
well as the departmental equipment cabinet-only Ford
and Mason had keys. As in the cases of Clyde Evans and
Dodson, Brooks' testimony is clear and convincing that,
from and after Mason's aforedescribed announcement to
department 912 employees concerning Ford's changed
status, Brooks took orders from Ford and carried them
out since he regarded Ford as his superior, whose direc-
tions he was obliged to carry out in view of Mason's di-
rective concerning Ford's authority.
Testifying on the other side were several of the Em-
ployer's witnesses. Its department 914 layoff tableman,
Samuel D. Lindsay, in its employ for over 12 years and
formerly a department 912 welder, testified that prior to
the election Mason was foreman of 2 adjacent depart-
ments, 912 as well as 911, with Ford running a machine
in department 911 and nothing to do with department
912; ' that department 911 (covering an area of 100 by
Lo8 Without explanation, Wilson was not produced to dispute this testi-
mony of Dodson.
109 As noted above, without explanation Wilson was not produced to
controvert this.
0 Although King was produced as a witness by the Employer, in no
way did he controvert this testimony of Brooks.
" ' Undisputed by Mason, testifying as the Employer's witness.
" 1 Unrecollected by Eller, testifying as the Employer's witness.
" 3 Brooks also confirms that, after Mason's announcement, Mason
spent "very little"-perhaps only one-fourth-of hi time in department
912, in contrast to dividing his time 50-50 between the two departments,
911 and 912, which he previously directly supervised.
'4 In this and other respects, the testimoy of Lindsay and other wit-
nesses, as well as that of General Counsel's witnesses, appears at odds
with the handwritten data on Ford's "Personnel Job Record" (Resp.
Exh. 7), the accuracy of which or the precise degree of its reflection of
170 feet) consisted of 15 to 25 employees, and depart-
ment 912 (covering 50 by 180 feet) consisted of 12 or 13
employees-each covering a large area, and both togeth-
er encompassing a huge area. According to Lindsay,
there came a time when Mason assembled the depart-
ment 912 employees and announced to them that Ford
was "going to work with [you] and if [you have] any
problems to go and see Billie [Ford], and if he could not
solve [your] problems to come and see [me]." Thereafter,
when Lindsay completed a job he went to Ford (instead
of to Mason, as previously) and asked Ford "what job he
wanted done next." Ford would tell him what to do, and
he complied. In Lindsay's words, Ford would "just give
us a job and we go on and do it." Lindsay testimonially
expressed his understanding that, following Mason's an-
nouncement, in Mason's absence it would have been
Ford from whom authorization for leave or early depar-
ture would be requested and who would authorize it.
Lindsay testified that, prior to Mason's announcement,
he and other department 912 employees took their prob-
lems to Mason; and also that after Mason's announce-
ment, when Ford directed him to drop what he was
working on and switch to a "rush order" which Ford as-
signed to him, Lindsay complied, and that at no time has
he (Lindsay) declined to do anything Ford told or asked
him to do. Lindsay, still testifying as Respondent's wit-
ness, also testified that, following Mason's announce-
ment, Ford as well as Mason alone had keys to the de-
partment 912 tool and equipment cabinet; and that, fol-
lowing Mason's announcement, department 912 employ-
ees went to Ford to obtain authorizations for supplies,
with Ford signing not only his own name but also that of
Mason. ' 5
William R. Ford, Jr., the individual whose supervisory
status at the time in question is here in issue, is the
nephew of the Employer's personnel director, Frank
Ford. Ford's version of the department 911 and 912 fore-
man, Mason's, announcement to department 912 employ-
ees (which Ford dates in April) is that Mason informed
the employees Ford "would be the leadman in 912" and
instructed the employees that if they had any "welding"
problems they were to see Ford,1 16 but on "personal"
problems to see Mason, and that Ford's mission and re-
sponsibility were to "make sure that everybody had
work." According to Ford, he would usually but not in-
variably receive from Mason a list of jobs to be done; on
the actual facts of what Ford actually did has not been independently es-
tablished.
"I In view of the foregoing testimony of the Employer's witness
Lindsay, as well as of other of the Employer's witnesses, and the credited
testimony of General Counsel's witnesses Evans, Dodson, and Brooks as
recounted above, I reject contrary testimony of the Employer's witness
William R. Osborne-an unprepossessing witness whose demeanor im-
pressed me adversely-to the general effect that, as a department 912
welder, his work was assigned to him personally by Mason and that Ford
"ain't never talked to me about jobs" and never did more than place
things on his workbench without ever so much as saying anything to
him, as unworthy of belief; as also I regard his testimony that he sought
out Mason directly to find out what to do and did not regard himself as
obliged to do anything Ford wanted him to do (but consider his testimo-
ny that Ford never indicated he wanted him to do anything), since
Mason (and not Ford) was his immediate superior and so indicated to
him, and that in Mason's absence he did not go to Ford but to another
departmental head for permission to leave early.
I" This alone could import supervisory status on the part of Ford.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those occasions when he did not receive such a list, he
(Ford) himself decided what work was to be done, him-
self assigning the work to employees. Ford checked the
employees' work to see if it was done right; if not, he
would take it up with the employee or himself make the
necessary correction. Ford concedes that Mason did not
indicate to him (Ford) which jobs were to be done by
each employee, but left that to Ford; and that Ford
would also report to Mason substandard employee per-
formances. When counel for General Counsel attempted
on cross-examination to probe into examples of such re-
ports, Ford blocked the inquiry with the response, "My
memory is not too good." He did, however, recall an oc-
casion (seemingly the one described by General Coun-
sel's witnesses Dodson and Brooks, (supra) when em-
ployee Wilson declined to do the job assigned him by
Ford, and Ford directed him to report to Mason."'
Ford testified he is unable to suggest why Wilson came
to him (Ford) rather than to Mason with the refusal.""
Ford's attempted self-deprecation of the significance of
any report or recommendation he might make to Mason
concerning any employee's insubordination or other
work performance deficiency is incredibly-considering
what Ford himself testified Mason announced to the em-
ployees-supported by Mason, who testified that he
would not have given any weight to any such report
from Ford, testimony which I reject since it is belied by
the case of Wilson, as well as by the testimony of Fac-
tory Superintendnent Eller himself, who conceded that,
if Ford was faced with an insubordinate employee and so
reported to Mason, Mason would have been expected to
back up Ford and to give weight to Ford's report. Ac-
cording to Ford, during the period here in question he
met two or three times daily with Mason, to review jobs
on hand and work priorities for the department-hardly
the sort of meetings held or topics discussed with a rank-
and-file workhand. According to Ford, the job title of
"Departmental Coordinator" was used interchangeably
with that of "forklift operator," which Ford seemingly
claims he was-as well as "setupman" and "leadman"-
at the time here in question. Ford asserts that he was
only a "forklift operator" at a time when the Employer's
"Personnel Job Record"(Resp. Exh. 7) shows he was a
"Departmental Coordinator." If, on the other hand, as
Ford swears, the job duties of forklift operators are the
same as those of departmental coordinators, then Ford's
actual powers and responsibilities at the time here in
question, if he continued in fact to be a forklift operator,
may well for that reason, considering the Employer's
"Job Kating Specifications" and "Job Description" for
the job of departmental coordinator (Resp. Exh. 30, in
part quoted supra, fn. 100) have been at the supervisory
level. With regard to authorizing early work departures
of department 912 employees, Ford concedes that those
employees have indeed sought such permission from him,
I" Although Ford denies he indicated to Wilson that he would lay
him off, I credit the aforedescribed essentially mutually corroborative tes-
timony of Dodson and Brooks in this respect.
1ls Of course, the ready explanation-under Ford's own testimony,
supra-would appear to be that Mason had previously instructed the de-
partment 912 employees to go to Ford with their work (i e, welding)
problems-as indicated above, itself suggesting supervisory status on the
part of Ford
but he claims the requests were invariably referred to
Mason. Ford is unable to explain why, if Ford lacked au-
thority to deal with such requests, the employees came
to him, rather than to Mason. I credit the aforedescribed
testimony of General Counsel's witnesses, as well as that
of Respondent's witness Lindsay, that Ford was looked
to and did in fact grant such leaves. 19
In addition to what has already been described, Ches-
ter Mason, in the Employer's employ for 16 years and at
the time he testified here the foreman of department 914
(structural welding, fitting and assembly; mining termi-
nals), testified that at the times here material, during
1977, he was foreman of both departments 911 and 912,
devoting only about 1 or 2 hours of his 8-hour day to
department 912. Mason provides yet another version of
his announcement (which he says occurred toward the
end of April) to department 912 employees concerning
Ford: according to Mason, he told them only that Ford
would be their "setupman, setting up the jobs for them;
and if they [had] any personal problems, bring them to
me" (emphasis supplied). Mason concedes that, at this
time, and with the previously expressed approbation of
Factory Superintendent Eller, Ford in fact relieved
Mason of some of Mason's department 912 "duties" in
order to afford Mason more time to carry out other re-
sponsibilities; and that, among other things, Ford was
given the responsibility of checking the work quality of
the employees of department 912, and of reporting defi-
ciencies to Mason, who would attach sufficient signifi-
cance to those reports to assure the taking of necessary
corrective measures. And, according to Mason, from and
after his aforedescribed announcement to the department
912 employees, Ford became an "indirect payroll-i.e., a
"nonproduction"-employee, whose pay, unlike that of
rank-and-file production employees, was charged to the
department as departmental overhead and not linked di-
rectly to work-output billings.
In addition to such of his testimony as has already
been described, Factory Superintendent Eller testified
that at the time in question (October election) Ford was
a "setupman."12 0 While Eller disputes that Ford pos-
sessed the "authority" to tell other employees what to
do, Eller concedes he is ignorant of the authority actual-
ly exercised by Ford or announced by Mason to the de-
partment 912 employees to be vested in Ford. Although
Eller testified that Mason was "supposed to" (emphasis
supplied) tell Ford what to direct other employees to do,
he conceded that Ford could and did assign employees
to jobs "on his own." Eller concededly had no knowl-
edge of what authority Ford in fact exercised or purport-
ed at the direction of Mason to exercise vis-a-vis other
9 Ford confirms that subsequent to the election he became a welding
setupman: and that (as corroborated by Factory Superintendent Eller)
Theodore Thompson became department 912 foreman at the beginning of
January 1978-thus, apparently, for the first time formally separating the
previous joint foremanship of departments 911 and 912 into two separate
foremanships. According to Ford, Thompson was, in turn, succeeded as
department 912 foreman by McCurry in February 1979
120 This seemingly runs contrary to credited testimony of various
other witnesses, described above, and seems open to question in view of
Ford's actual duties, responsibilities, and activities Eller concedes that
"only occasionally did Mr. Ford actually set up machine during the time
of the union campaign"; and that Ford actually assigned jobs to welders
JEFFREY MANUFACTURING DIVISION 61
employees, and it may be doubted that-particularly in
view of Mason's announcement to them-the employees
had any awareness of the subtle semanticism or legalism
seemingly suggested by Eller at the hearing between
technically unquestionable legal authority, and in fact ex-
ercised authority, the employees being concerned with
and reasonably understanding what they were told by a
responsible managerial source (i.e., Mason) and what was
apparent to them and the practice that thereafter in fact
prevailed. Notwithstanding Eller's foregoing equivocal
generalization concerning Ford's "authority," at a later
stage of his testimony Eller himself conceded that-ap-
parently to Eller's knowledge and with no indication
that Eller or anybody else took countermeasures to halt
it or to indicate Ford lacked such authority, exercised on
its behalf 12 --Ford in fact assigned jobs to employees,
selecting particular employees to do particular jobs; that
Ford, as well as Mason, could designate particular jobs
as "rush," in accordance with priorities established by
the "front office" (i.e., neither Ford nor Mason). Ac-
cording to Eller's testimony, from April 25 through the
date of the election (October 27), Ford's work in depart-
ment 912 consisted 75 percent of "departmental coordi-
nating" 12 2 and 25 percent or less of setup work. 12 3
Finally, Factory Superintendent Eller testified that
since Ford's designation on December 13, 1976, as an
"Indirect Payroll" employee (Res. Exh. 7), Ford has re-
mained in that category and has never since then been
removed from or classified out of that classification.'24
Upon the record presented concerning William R.
Ford, Jr., I am persuaded and find that the time here ma-
terial he possessed sufficient attributes linking him with
the Employer's management system to warrant his being
regarded as a supervisor within the meaning of the
Act,' 2 5 as well as the Employer's managerial/adminis-
1i Cf., e.g., Sec. 2(13) of the Act, Restatement (Second), Agency , §
228-230, 233 235 (1958); .VL.R.B. v. Link-Belt Company, 311 U.S. 584,
599 (1941); H. J Heinz Company v. V.L.R.B., 311 U.S. 514, 520-521
(1941); International Association of Machnists, Tool and Die Makers Lodge
No. 35 [Serrick Corp.1 v. N.L.R.B., 311 U.S. 72, 79-80 (1940): The Bama
Co., 145 NLRB 1141 (1964), enfd. 353 F.2d 320 (5th Cir. 1965).
I22 See fn 100, supra.
123 In view of this other testimony, including that of Mason himself, to
the effect that Mason spent no more than an hour or two on department
912-to which, on January 1, 1978, there was assigned its own separate
foreman, Thompson-if Ford had no supervisory function there at the
time in question, it would have left that department, unlike the others,
essentially unsupervised or insufficiently supervised to have permitted it
to operate with even a modicum of productive efficiency.
i2 It will be recalled that the Employer's classification of "Indirect
Payroll" is reserved for what it considers to be nonproduction jobs (fn.
101, supra). The admitted appropriate bargaining unit here is limited to
"production and maintenance employees " Ford was concededly not en-
gaged in "maintenance" work at the time here material.
25 I.e., Sec. 2(11), which, as has repeatedly been pointed out, is
worded in the disjunctive, and requires no more than one of the powers
or attributes therein enumerated. See, e.g., Amalgamatd Local Union 355
[Russell Motors] v N.L.R.B., 481 F2d 996, 999 (2d Cir. 1973), and cases
cited; N'L.R.B. v. Elliott-Williams Co., Inc., 345 F.2d 460, 463 (7th Cir
1965); N.L.R.B. v. City Yellow Cab Company, 344 F.2d 575, 580 (6th Cir.
1965). See, generally, .. L.R.B. v. Swift d Company, d/b/a New England
Processing Unit 292 F.2d 561, 563 (Ist Cir. 1961), quoted with approval in
Marine Engineers Beneficial Association v. Interlake Steamship Co., 370
U.S 173, 179, fn 6 (1962). Thus, although, for example, Ford was not
shown to have nor to exercise the power to hire (nor certain other
powers listed in Sec. 2(11)), this does not rule him out as a supervisor.
Credited proof shows, as I have found and repeat, that, for example,
trative agent, 1 2 and sufficiently closely aligned with
and allied to management in the execution of supervi-
sory/administrative tasks as to create a conflicting wall
of interest between him and the rank-and-file unit em-
ployees of which he insisted at election time he was a
member for voting and collective-bargaining purposes
under the Act. For all these reasons, it is concluded and
recommended that the challenge to his ballot should be
sustained and that ballot voided, discarded unopened,
and not counted in the October 27 election.
3. Walter Ray Whitacre
The ballot of Walter Ray Whitacre (Whitaker) has
also been challenged by Petitioner Union upon the
ground of supervisory status.
The proof fails to sustain the contention that Whitacre
was a supervisor at the time here material. It does estab-
lish that he was a night (i.e., second shift) setup man in
departments 911 (steel fabrication) and 913 (idler shop),
occasionally but rarely' 2 7 substituting or filling in for
Night Foreman Eaves in his absence. Such occasional
filling in for Eaves did not change Whitacre's job from
that of setup man to that of supervisor;t 28 nor did the
fact that Whitacre was entrusted with keys to the plant
in order to lock it up on occasion in the absence of
Night Foreman Eaves,
Since it has not been established by substantial credible
proof, as required, that at times here material Whitacre
possessed supervisory status or was otherwise excepted
from or not within the stipulatedx 2 9 appropriate bargain-
Ford did have and exercise "authority, in the interest of the employer, to
. . . assign ... or discipline other employees, or responsibly to direct
them . .. or effectively to recommend such action" in the exercise of his
"independent judgment" (Act, Sec. 2(11))-sufficient, in my estimation,
to stamp him as a supervisor within the meaning of the Act. "Of course,
the important things is the actual duties and authority of the employee,
not his formal title." N.L.R.B. v. Quincy Steel Casting Co., Inc., 200 F.2d
293, 296 (Ist Cir. 1952).
2I Act, Sec. 2(13), which for purposes of administration of the Act,
eases or removes the technicalities and stringencies of the common law
agency concept. Cf., e.g., N.L.R.B. v. Solo Cup Company , 237 F2d 521
(8th Cir. 1956); Betts Baking Co., 155 NLRB 1313 (1965), enfd. 380 F.2d
199 (10th Cir 1967); Herb Sadler Budweiser Distributing Co., 153 NLRB
119 (1965).
127 l.e., perhaps as many as 3 days to a week, perhaphs three times a
year, according to General Counsel's witness Ellison; not over 30 minutes
per month, according to Night Foreman Eaves, with the possible excep-
tions of a 2-week vacation in 1977; according to Whitacre, 5 or 6 days'
vacation plus I week of plant shutdown per year
12s Cf, e.g., Complete Auto Transit. Inc., 214 NLRB 425, 426 (1974);
E 1. Du Pont deNemours & Co., Inc., 210 NLRB 395 (1974).
129 The Employer's department 913 (idler shop) foreman (on both
shifts, althought usually present only on first shift), Ray Douglas Lind-
say, testified that Whitacre is classified as an "indirect payroll" on "non-
production" employee. Factory Superintendent Eller's testimony con-
firms that in Respondent's factory usage "indirect payroll" and non-pro-
duction" employee are synonymous (see fn. 101, supra). Although the
stipulated appropriate unit is confined (with the usual exception of super-
visors, etc.) to "production and maintenance employees" (Whitacre was
plainly not a "maintenance" employee), the Employer's classification of
Whitacre as a "non-production" employee does not of itself eliminate him
from the defined bargaining unit here, since it is apparent that the Em-
ployer's usage of "non-production" is for its own internal billing, book-
keeping, and audit purposes only (see fn. 101, supra); and that in common
industrial relations usage and, therefore, for purposes of the Act, as a
setup man Whitacre was actually engaged in production work, nor is any
contention to the contrary here advanced As the Board has often point-
Continued
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing unit, he was in my opinion eligible to vote in the Oc-
tober 27 statuory election, and it is accordingly recom-
mended that Petitioner Union's challenge to his ballot be
overruled and that his ballot be opened and counted.
Finally, with regard to the challenged ballots, Petition-
er Union having withdrawn its challenge to the ballot of
Larry M. Burgess and that challenge having on that basis
been overruled by the Board in its February 10, 1978,
Order, his ballot should be opened and counted.
B. Objections to Conduct of Election
Also referred here, by consolidation, are certain of Pe-
titioner Union's objections to alleged employer conduct
said to have effected the election results;'t3 viz, Objec-
tions 1, 3, 4, 5, and 7, which may be recapitulated as fol-
lows, with relationship if any to issues in the underlying
unfair labor practices cases, supra, as indicated:1'3
ed out, it is not an employer's job title or classification, but what an em-
ployee actually does, which is determinative of his supervisory or non-
supervisory or other status for purposes of unit inclusion or exclusion
under the Act. (While William R. Ford, Jr., supra, was according to his
"Personnel Job Record" (Resp. Exh. 7) for a time, and according to the
testimony of Factory Superintendent Eller continues to be, also classified
as an "indirect payroll" or "non-production" employee, his recommended
exclusion from the bargaining unit, supra, is based on his supervisory
status.)
I"O Objections 2, 6, and 10, and to "Other Acts and Conduct" having
been overruled by the Board's February 10, 1978, Order, those objections
are not here considered.
131 [Omitted from publication.]
It is thus apparent that, except for Objection 7, which
is unmentioned in the complaint but encompassed in sub-
stance in the credited testimony of General Counsel wit-
ness Dodson,' 3 2 these objections of Petitioner Union to
employer conduct affecting the outcome of the October
27, 1977, statutory election in case I l-RC-4416 in es-
sence duplicate complaint allegations in the instant con-
solidated complaint case which have been discussed and
determined supra, selection II, H, and Conclusion of
Law. To that extent, since the degree of proof necessary
to sustain election objections is less than that to establish
unfair labor practices,13 3 those objections' 3 4 should be
sustained, requiring that election to be set aside in the
event the overruled challenged ballots, when opened and
counted, result in a majority tally against representation
by Petitioner Union or in a tie vote, and that, in either of
those events, a rerurn election should be conducted at an
appropriate time. It will accordingly be so recommended
to the Board.
[Recommended Order omitted from publication.]
132 Supra, sec. II,H, and fn. 132.
'33 Super Thrift Markets, Inc. /a Enola Super Thrift, 233 NLRB 409
(1977). Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1686-87 (1962).
134 Including Objection 7, for reasons expressed and findings made
supra, sec. II,H.