Kaydee Metal Products Corp.

National Labor Relations Board - Board Decisions

Mar 2, 1972

195 N.L.R.B. 687 (N.L.R.B. 1972)

KAYDEE METAL PRODUCTS CORP. 687
Kaydee Metal Products Corporation and Aluminum
Workers International Union , AFL-CIO. Cases 26-
CA-3912 and 26-CA-3925
-March 2, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS AND KENNEDY
On November 10, 1971 , Trial Examiner Ivar H. Pet-
erson issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and a
supporting brief, and the Respondent filed an answer-
ing brief.
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 Trial
Examiner 's Decision in light of the exception and briefs
and has decided to affirm the Trial Examiner 's rulings,
findings,' and conclusions - and to adopt his recom-
mended Order.
ORDER
principally on the allegation that the Regional Office inter-
viewed one Donald Fiske, in connection with the investiga-
tion of the case, outside the presence of and without notifica-
tion to counsel for the Respondent, and then alleged that
Fiske, as an agent of the Respondent, engaged in conduct
violative of the Act. Counsel for the Respondent, in urging
that his motion be granted, claimed that the failure to notify
counsel of the interrogation of Fiske was inconsistent with the
General Counsel memorandum 1967-32. 1 denied the mo-
tion.
The case involves three principal issues: (a) whether an
employee petition to oust the Union at the end of the certifica-
tion year was a valid expression of employee opinion not
inspired or facilitated by the Respondent; (b) whether the
Respondent was legally obliged to negotiate a new agreement
with the Union after the expiration of the first agreement at
the end of the certification year; and (c) whether the suspen-
sion of employee Kermit Harp for 2 days was for just cause
or for discriminatory reasons. There are, of course, numerous
questions of credibility affecting each of the foregoing issues.
For the reasons hereafter stated, Y resolve all issued in favor
of the Respondent and, accordingly, recommend that the
complaint be dismissed.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of the
able briefs filed on September 23 by Counsel for the General
Counsel and the Company, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint be, and it hereby is, dismissed in its entirety.
' The General Counsel has excepted to certain credibility findings made
by the Trial Examiner , It is the Board's established policy not to overrule
a Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the resolu-
tions were incorrect Standard Dry WallProducts, Inc., 91 NLRB 544, enfd.
188 I^.2d 362 (C A. 3). We have carefully examined the record and find no
basis for reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: This case was tried
at Tupelo, Mississippi, on July 20, 21, 22, and 23,1971. The
original charge in Case 26--CA-3912 was filed February 5,
and in Case 26-CA-3925 on February 22; both charges were
amended on March 23, and an order consolidating the cases
accompanied" by a consolidated complaint was issued on the
same date. Thereafter, the Respondent filed a motion for a bill
of particulars, which Counsel for the General Counsel op-
posed, and also a motion to dismiss the complaint. Trial
Examiner Arthur Leff issued an Order denying Respondent's
motion for a bill of particulars under date of April 19, and
an order denying the motion to dismiss under date of April
26. The Respondent requested special permission to appeal
from the Trial Examiner's orders denying the motion to dis-
miss and the motion for a bill of particulars, both of which
were opposed by the General Counsel. By telegraphic order,
received May 25, the Board denied the request for special
permission to appeal. At the opening of the hearing, the
Respondent renewed its motion to dismiss, which was based
195 NLRB No, 125
The Respondent, a corporation with its principal office and
operations located at Belmont, Mississippi, is engaged in the
manufacture of metal furniture, principally chairs. During
the 12 months preceding issuance of the complaint, the Re-
spondent received at its Belmont location goods and materi-
als valued in excess of $50,000 directly from points outside
the State of Mississippi and, during the same period, sold and
shipped from its Belmont plant goods and materials valued
in excess of $50,000 directly to points located outside the
State of Mississippi. The Respondent admits and I find that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The Respondent further
admits and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR, PRACTICES
A. Background
The Union was certified as the exclusive representative of
the Respondent's employees in an appropriate unit on
December 8, 1969, following a Board election in which 17
employees voted for the Union and 13 employees voted
against the Union. On January 6, 1970,1he Union requested
that bargaining negotiations be commenced and in the bal-
ance of the year the parties met in some 16 bargaining ses-
sions. On August 3, the 'Union went on strike, which was
terminated on October 1, prior to any contract having been
reached. During the course of the strike, there were a substan-
tial number of incidents of picket line harassment and dam-
age to property and other misconduct. The Respondent con-
tinued to operate during the course of the strike with some
' The motion of counsel for the General Counsel to correct the transcript
in various respects is hereby granted, except as proposed to be further
altered by counsel for the Respondent. The latter's motion to make add,-
tional corrections is granted, except to the extent that the' reply and opposi-
tion filed by counsel for the General Counsel is granted.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
23 employees who did not strike, some strike replacements,
and some strikers who elected to return to work before the
termination of the strike.
In July 1970, the Union filed a charge alleging that the
Respondent had unlawfully refused to bargain. This charge
was dismissed by the Regional Director. In September the
Union appealed to the General Counsel who, under date of
November 24, denied the appeal. Among other things, the
General Counsel's letter denying the appeal stated that "since
the strike beginning August 3 could not be shown to have
been an unfair labor practice strike, and since virtually all of
the present employees are strike replacements, the Com-
pany's conditioning of its September 22 offer on a contract
term running only to the end of the certification year could
not be shown to have been based on any considerations other
than its reasonable belief that the Union had lost the support
of the employees," citing Star Expansion Industries, 164
NLRB 563, 587.
The Union's telegram of October 1 calling off the strike and
offering to return the employees to work further stated that
the Union "would also wish to continue to negotiate if in the
Company's, opinion there is any chance of reaching an agree-
ment." The following day, counsel for, the Respondent tele-
graphed the Union stating that the Union had previously
indicated that "serveral strikers did not desire to return to
work," and that in order for the Respondent to ascertain the
names and addresses of all employees who did desire to return
and process their reinstatement, requested that all employees
who desired reinstatement and who had not previously re-
ported to the plant should do so by October 7. By telegram
dated November 23, the International representative for the
Union, C. B. Hatton, informed the Respondent that the
Union accepted the Respondent's last offer on contract lan-
guage and wages and suggested a meeting that week to sign
the agreement. On December 4, the parties signed an agree-
ment which by its terms stated that it was to "become effec-
tive on December 4, 1970 and shall remain in full force and
effect until 11:59 p.m., December 8, 1970" and that it "shall
not automatically renew unless a new agreement is negotiat-
ied prior to 11.59 p.m., December 8, 1970." This agreement
contained no improvements in the existing employee benefits.
Under date of December 7, W. S. Rutledge, regional direc-
tor of the Union, wrote to the Respondent requesting a 60-
day extension of the contract and meetings for the purpose
of negotiating a new agreement. On or about December 10,
the Union issued a leaflet to employees listing "the benefits
which the Union negotiated and signed in a contract for the
employees," stating that the Union had asked the Company
to extend the contract until a new one could be negotiated,
and that "if the Union can get this much when most of you
were not members, think of what could be gained if most of
you belonged." On December 14, the Union wrote to the
Respondent renewing its request for bargaining and suggest-
ing dates on which negotiations could begin. The Respondent
replied on December 17, noting that the Union did not make
any claims in these letters that "a majority of our employees
desire or authorize your Union to negotiate for them" and
that the Union was "aware of the circumstances which
caused the Company to believe that most of the employees do
not want your Union to represent them." It further indicated
its willingness to settle the representation issue by "an im-
mediate secret-ballot election." On January, 4, 1971, the
Union renewed its request for negotiations. Not hearing fur-
ther from the Respondent, the Union wrote on February 4
stating as follows:
We wish to make' our position clear to you without, any
further wasted time. A-MAJORITY OF THE BAR-
GAINING UNIT EMPLOYEES OF KAYDEE MET-
ALS AT THE BELMONT PLANT ARE MEMBERS,
OF THIS UNION. When we say "members" we mean
that they have actually joined the union and have signed
up on membership cards, not just so-called "representa-
tion cards" of the type which we turned in to the NLRB
at the time we petitioned for an election before. When we
say "a majority of the employees" we mean all of the
employees who work at the plant including those you
hired as strike-breakers.
We are prepared to prove the above by a card-check in
the event that you have any good-faith doubts on the
matter.
Once again, we request that you meet with us at a mutu-
ally agreeable date and time for the purpose of negotiat-
ing a new labor agreement . Please contact International
Representative C. B. Hatton of this office and inform
him of dates on which you will be available for this, as
he will represent the Union in this matter.
Counsel for the Respondent replied on February 11 stat-
ing:
This is to advise you that my client has a good faith
doubt that you represent a majority of these employees.
You are further advised that my client prefers to have
any questions involving the representation of its em-
ployees, for the purpose of collective bargaining, and any
question involving the appropriateness of any unit deter-
mined by the National Labor Relations Board.
On February 22, the Respondent filed a representation
petition (Case no. 26-RM-280), with the Regional Office.
B. The Petition to Oust the Union
On September 15, 1970, Plant Superintendent Fiske was
presented with an employee petition by John Caveness, an
employee. The petition was signed by 65 employees and the
heading of it read as follows:
To Kaydee Metal Products
Belmont, Miss.
The following employees would like to have an elec-
tion as soon as possible to get rid of a union that has
threatened (sic) & bothered us-
It is the theory of the counsel for the General Counsel that
the Respondent, primarily through Fiske, instigated the peti-
tion and caused it to be circulated on company time and
property. The Respondent,'on the other hand, contends that
it had no part in the initiation or circulation of the petition.
As is to be expected, the testimony with respect to this matter
is conflicting. The government relies primarily upon the tes-
timony of Fiske, who was discharged on January 29, 1971.
The Respondent, in its brief, states that "Fiske's testimony is
demonstrably false."
Fiske came to work for the Respondent as plant superin-
tendent on December 1, 1969, the same date that the Board
conducted an election which resulted in a vote of 17 to 13 for
the Union. Following the election, Saul Rubin, president of
the Respondent, so Fiske testified, desired that a list be made
showing who voted for the Union and who voted against it.
One Andy Frodge, at the time a part owner of the Respond-
ent, made out such a list which, according to Fiske, was
checked by Rubin and two leadmen, Kelly Bolton and James
Glasgow. The day after the list was made, Rubin told Fiske
that he wished to eliminate the men on the list who were
shown as having voted for the Union, and specifically men-
tioned Floyd Robinson, Carlos Creekmore, and Gordon
Oaks. According to Fiske, while there were some deficiencies
in the work of these employees he would not have fired them
but for the fact that Rubin desired that he do so. The Union
filed charges after the December 1969 election concerning the
termination of some employees in July as well as Robinson,
KAYDEE METAL PRODUCTS CORP 689
Oaks, and Creekmore . It is the testimony of Fiske that about
3 or 4 months after the election Rubin told Fiske that he had
changed his mind and did not wish to discriminate against his
employees . However , so Fiske testified , Rubin stated that he
did not want any people hired from Red Bay and Dennis,
Mississippi , because those two places were "union hotspots."
Rubin further told Fiske to screen any new hires with Jack
Pennington , a foreman , who was acquainted with the people
in that section of the country.
Fiske took part in approximately 16 negotiation meetings
held during the course of the certification year . He testified
that Rubin told him on numerous occasions that he did not
wish to sign a contract . After the Union ended the strike and
offered to return the employees who were still on strike,
Rubin told Fiske that the Respondent would call back the
strikers one at a time and would isolate them in their work
so that they would not "contaminate the rest of the plant."
He further told Fiske to place the former strikers on the
swedging machine or the saw cutoff machine , which were the
hardest physical jobs in the plant . Moreover , in November
1970, Rubin told Foreman Dock Robinson that he desired to
get rid of those employees who were returning to work fol-
lowing the strike and he wanted to find something wrong with
their work or drive them until they either quit or were fired.
Rubin did not deny any of the specific conversations related
by Fiske nor did he deny the conversation testified to by
Robinson.
Fiske testified that on Friday , September 11, he spoke to
President Rubin and informed him that he thought some
employees were considering drawing up a petition to oust the
Union . He related that thereupon Rubin telephoned the Re-
spondent 's attorney , Mr. Hudson , in Memphis and that he
(Fiske) listened in on an extension phone. Following the con-
versation with Attorney Hudson , Rubin and Fiske, so the
latter related, discussed the matter of a petition and Fiske
stated that he thought Foreman Pennington would be a good
one to consult and that the latter would probably have em-
ployee Caveness solicit signatures . On Monday morning, Sep-
tember 14 , Rubin asked Fiske , according to the latter,
whether he had the petition and Fiske replied that he did not.
Apparently Rubin , according to Fiske, was somewhat upset
and stated that he needed the petition for the negotiating
session that was to take place the following day. Fiske then
went to Pennington and told the latter that the petition was
needed and that Pennington should "get busy" on it. Pen-
nington stated that Caveness was working on the matter but
was not sure of the heading and they wished to consult with
Fiske about it. They did so and Fiske told Pennington that
the wording was satisfactory . Later that day, Caveness
brought the petition to Fiske in the latter 's office and stated
that all in the plant had signed up except one Rupert West
and such employees as were absent . It is Fiske's testimony
that while Caveness was in his office West came in to discuss
something concerning the paint line, where he worked. Fiske
related that he told West , "You are just the fellow we are
looking for. Do you or don 't you want to sign the petition?"
West stated that he did and thereupon signed it . Then Fiske
told Caveness to keep the petition overnight in case some of
the absentees came in the next day.
On Tuesday , September 15, Caveness brought the petition
to Fiske and told him that there were no more signatures on
it and left it with Fiske . Fiske thereupon took the petition to
Rubin and stated that about 95 percent of the plant had
signed . Rubin was somewhat upset and stated that he would
rather have 100 percent of the plant subscribing to the peti-
tion as he felt that would be much more effective . Fiske than
took the petition to Attorney Hudson before the negotiating
session which was to start at noon.
The version given by Rubin is somewhat different. He
stated that he first discussed the petition with Fiske on Sep-
tember 14 , and that Fiske told him that Pennington had
stated that there might be a petition circulated in the plant
to oust the Union and that Caveness might circulate it. Rubin
then testified that he and Fiske called Attorney Hudson, who
advised them that this was an inopportune time for the peti-
tion and that a factor complicating the matter was pending
unfair labor practice charges. Rubin related that Hudson
advised him to keep himself clean and that he could not stop
the movement for a petition or assist in it . The next day Fiske
brought the petition and President Rubin merely commented,
"Well, we have got it . You are going to Memphis , give it to
Fletcher Hudson."
Pennington 's account is that Caveness asked him how they
could get rid of the Union and he advised Caveness that it
would have to be voted out but that he (Pennington) could
not have anything to do with it . Pennington testified that he
then went to see Fiske and stated that he believed Caveness
was going to circulate a petition and that the two of them then
informed Rubin . Shortly before the normal 3:30 quitting
time , Pennington told Caveness to work overtime on Septem-
ber 14 and Caveness did so until 5 o'clock.
Caveness testified that about 2 p . m. on September 14 he
went to the punch press department , about 50 yards from the
shipping department where he regularly worked , and spoke
with employee Howard Sparks about getting a petition
started . Caveness then returned to his department where he
wrote out the heading on the petition during his working
time. Prior to quitting time that day, Caveness , so he recited,
took the petition to Sparks who later returned it to him
around 4 p . m. while Caveness was still working overtime.
Concerning the advice he had been given by Pennington,
Caveness stated that Pennington said the only way to proceed
was to vote out the Union but that he could not have anything
to do with it . Caveness testified that on the evening of Septem-
ber 14 , after Sparks had brought the petition back to him, he
obtained the signatures of two employees, whom he identified
as Danny Wilson and David Wilson , who signed up while at
their car. Caveness further related that the following morning
(September 15) Sparks got the petition from him once again
and told Caveness that he had two or three more employees
who wished to sign . After Sparks returned the petition to
Caveness, Caveness and Sparks went to Fiske's office with the
petition . While there , employee West came in and signed the
petition.
Employee West testified that Sparks spoke to him on the
paint line and asked him to sign the petition , but that he
(West) felt he should not in view of the fact that the was a
leadman . Later Caveness brought the petition back to him
and asked him to sign and told him that it was for a reelection
on the Union. West signed it . He stated that he was not in
Superintendent Fiske's office on the day he signed the peti-
tion.
A number of employees testified that Sparks came to them
and solicited their signatures to the petition , telling them that
they would obtain improved benefits as a result.
During the month of September the parties met in bargain-
ing sessions four times (September 4, 15, 22 , and 28). At one
of these meetings Attorney Hudson asked International rep-
resentative Hatton whether the Union contended that it
represented a majority of the employees at that time. Hatton
replied that the Union was the bargaining agent for all the
employees in the plant . Attorney Hudson then said to Hatton
that what he meant to ask was whether the Union contended
that a majority of the people in the plant then belonged to the
Union or wished to be represented by it. Hatton replied that
he did not know if the Union had a majority in the plant at
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time because he did not have information as to the
number of new employees that had been hired. However, he
did say that the Union had an overall majority, counting the
people on strike and those in the plant. Concerning this ex-
change, Attorney Hudson testified that he "was trying to
argue with him (Hatton) to convince him to agree to an
election." At the meeting in September the termination date
of a contract was discussed, and Attorney Hudson suggested
that the contract terminate at the end of the Union's certifica-
tion year, or that in the alternative the parties agree that the
contract would not serve as a bar to an election or that it
could be reopened on December 10. At a subsequent bargain-
ing session, still in September, Attorney Hudson accused
Hatton of having admitted that the Union did not represent
the employees. Hudson testified that he told Hatton " .. , you
have admitted that you don't represent the employees, the
employees don't want you to represent them." Hatton took
issue with this remark and, according to Hudson, stated, "I
don't know whether we do or not"
C. The Withdrawal of Recognition
and Refusal To Bargain
According to Fiske, he was summoned by Attorney Hud-
son to "an emergency -meeting" on December 4. At that
meeting, the Union agreed to the last five or six items on
which there had been disagreement and, as a result, Attorney
Hudson telephoned President Rubin and told him that he had
to sign a contract immediately. As previously related, the
contract was effective from December 4 until 11:59 p.m.
December 8. As stated in section III, A, supra, the Union
requested an extension of the agreement and negotiations for
a new agreement, which the Respondent rejected, asserting
that it had a good-faith doubt that the Union represented a
majority. On February 16, W. S. Rutledge, regional director
of the Union, and' International Representative Hatton
jointly had a telephone conversation with Respondent's attor-
ney, Albert Coles. They had asked for Attorney Hudson, but
were informed that he was in Honolulu. Rutledge told Coles
that if the Respondent had any good-faith doubt concerning
the Union's majority status, he was prepared to show Coles
the employees' membership cards. Coles declined the Union's
suggestion and stated that the Respondent would consent to
an immediate election. About a week later Attorney Hudson
telephone Hatton and, in response to Hatton's statement that
the Union had a majority signed up on a membership cards,
said he thought that a number of employees who had signed
membership cards did not in fact want the Union to represent
them anymore. Thereafter, on February 22, the Union filed
the second of its charges (Case 26-CA-3925) alleging that the
Respondent had unlawfully refused to bargain. On the same
date the Respondent filed its representation petition.
Counsel for the Respondent makes a detailed and vigorous
attack upon the credibility of ex-plant superintendent Fiske.
He asserts that Fiske's "untruthful testimony concerning the
purported telephone call of Friday, September 11, 1970, is the
keystone to all of his remaining testimony concerning the
origination of the petition." The Respondent produced tele-
phone records of long distance calls covering all of the month
of September. These show that on Friday, September 11, the
day that Fiske testified he and Rubin talked with Attorney
Hudson in Memphis, two calls were placed to Memphis, one
to St. Joe Paper and Supply and the other to the Memphis
Dinette. The called numbers are not the same as the tele-
phone number of Attorney Hudson. Therefore, the Respond-
ent contends, no telephone conversation occurred between
Rubin'and Fiske on the one hand and Attorney Hudson on
the other on September 11. Accordingly, the Respondent
agrues "it equally follows that no discussion occurred be-
tween Fiske and Rubin immediately after the non-existent
telephone call as to who would be best to handle the petition."
Moreover, it should be observed that if Attorney Hudson's
testimony is,credited regarding the advice he gave Rubin with
respect to the efficacy-of a petition in conjunction with the
contract negotiations, namely, that it was an inopportune
time for such a document to be initiated and circulated, it
seems odd indeed that Rubin and Fiske immediately made
plans for instituting the petition, as Fiske testified.
With respect to Fiske's testimony that on Monday morn-
ing, September 14, President Rubin asked him if he had the
petition and became upset when Fiske replied that he did not,
President Rubin categorically denied that any such event
occurred. Thus, counsel for the Respondent states that Fis-
ke's testimony "to the effect that when Mr. Rubin came into
the office on Monday morning, September 1'4, 1970, he asked
where the petition was and became upset because it had not
already been circulated, it palpably untrue."
Both Pennington and Caveness denied that'any conversa-
tion occurred between them and Fiske on September 14 to the
effect that Caveness should "get going" on the petition be-
cause he (Fiske) needed the petition the following day. It
should be observed that while Fiske testified that he in-
structed Caveness to "hurry up" with the petition, at the
same time, somewhat inconsistently, he testified that Cave-
ness should not circulate the petition on company time. It will
be recalled that Fiske testified that in the afternoon of Sep-
tember 14 Caveness brought the petition to his office just after
3:30 p.m. with the signatures of all the employees on it except
for West and such employees as were absent. It will also be
recalled that Fiske testified that while Caveness was in his
office with the petition West came in and signed the document
at the solicitation of Fiske, and that he then told Caveness to
keep the petition overnight in the event that some of the
absent employees would come in the following day. However,
according to Fiske, Caveness returned the petition to him the
following morning without having obtained anymore signa-
tures. Counsel for the Respondent states that this testimony
"cannot be true" because it "is utterly irreconcilable with the
order of signatures on the employee petition itself and the
overwhelming weight of the testimony of witnesses presented
both by the General Counsel and Respondent."
In the Respondent's view, Caveness gave Sparks the peti-
tion at approximately quitting time on September 14 (3:30
p.m.), and at that time the document was blank except for the
heading. Sparks took the petition outside the building and
began to, ask employees to sign it as they came out of the
building after work. The petition shows that the first three
signatures are those of Stanley Rogers, Jesse Sparks, and
Kellis Pardue, in that order. Jesse Sparks testified that he was
4 or 5 feet outside the plant door when his brother, Howard,
asked him if he wished to sign the petition. Jesse Sparks stated
that he saw Stanley Rogers, whom he described as a red-
headed boy, sign the petition' They signed, according to
credited testimony, outside the plant building after the 3:30
quitting time. Epps recalled that an employee named W. C.
Nunley, whose name appears immediately after Epps', was
behind her as she left the plant. It therefore appears certain
that Epps, whose signature is 9th, Coleman Robinson,in 11th
position, and Brown signed the petition outside the plant
building shortly after the 3:30 p.m. quitting time on Septem-
ber 14. The name of Larry Hall, in 13th position, and the
name of William Holland, in 14th position, according to
z Rogers did not testify inasmuch as he was in the Armed Forces. Counsel
for the Respondent requested a continuance of the hearing in order to
attempt to search out' Rogers and serve a subpena upon him I denied the
motion.
KAYDEE METAL PRODUCTS CORP. 691
Holland, were placed on the petition shortly after the latter
got off work, and, so he testified, a "whole bunch" of other
employees were present. A number of other employees as well
as Howard Sparks (whose name is 45th) testified credibly that
they signed after quitting time.
Caveness took the petition home with him the night of
September 14 and testified that he was the last person to sign
it that day. His signature is 54th. He left the plant at 5 p.m.,
having worked overtime.
In the light of the foregoing testimony, it is plain that
Fiske's testimony that all the signatures were obtained on the
petition on September 14 and that it was turned over to him
by Caveness just after 3:30 p.m. in its final form, except for
the signature of Rupert West, is erroneous. Moreover, there
is credible testimony that several employees signed the peti-
tion on the morning of September 15. It is customary for
employees to come to the plant before the 7 a.m. starting
time, to clock in and then wait for the buzzer to sound,
signalling that it is time to begin work. Caveness brought the
petition to the plant the morning of September 15 and took
it back to the shipping department, where he works. It is his
testimony that at least one employee came to him and said
that he wished to sign the petition. Luther Martin testified
that he had seen the petition the previous afternoon outside
the plant and that "a bunch" of employees were signing it.
Martin, however, did not know what the petition was about
and did not sign it. The following morning, so he testified,
Sparks came to him about 6:50 and told him that Caveness
had the petition and that Martin should go back there and
sign it so that they could get more money after the union was
ousted. Martin did so. His name is 56th on the petition. As
Martin was signing the petition, Howard Sparks came to
Caveness and said that he had two or three more who wanted
to sign. Sparks took the petition to the other end of the
building and the names of five employees appear immediately
after Martin's name . Employee Robert Frederick signed the
petition in front of the coke machine before work time. Em-
ployee Billy Southward testified that he signed the petition
before the buzzer sounded on the morning of September 15.
His brother's name David appears in the 62nd position and
the name of Lawrence Bennett is 63rd. Billy Southward's
name is in next to last position, 64th. The timecard of Law-
rence Bennett establishes that he was not at work on Monday,
September 14, and, therefore, must have signed the petition
the following morning. Rupert West's name is last. Although
Fiske testified that West signed in his office the afternoon of
September 14, the fact is that West first heard of the petition
the following morning. Howard Sparks asked him to sign and
West testified that, when he replied that he did not feel that
he could do so since he had been put in charge of a night crew
as leadman, Sparks asked West whether he punched a time-
card and West replied that he did. Between 6:45 and 7 a.m.
Caveness brought the petition back to West and asked him
to sign. He did so. West was positive that Fiske never asked
him to sign the petition and never said anything to him about
signing.'
D. Conclusions as to the Petition and the Refusal To
Bargain
As is readily apparent from the foregoing discussion, coun-
sel for the General Counsel relies primarily upon the tes-
timony of former Plant Superintendent Fiske to support the
allegation that the Respondent sponsored or participated in
' I have not overlooked the testimony of Caveness to the effect that West
came in to Fiske's office after Caveness had submitted the petition to Fiske
the morning of September 15 1 think on the whole that Caveness' recollec-
tion in this respect is faulty
the initation and circulation of the employee petition to oust
the Union as the collective-bargaining representative. On the
other hand, there is ample testimony, consistent and mutually
corroborative, from both witnesses called by the General
Counsel and the Respondent, to the contrary. I am per-
suaded, and accordingly find, that the testimony of Fiske
must be rejected.
His testimony, it seems plain, was intended to injure his
former employer who had discharged him. Although Fiske
testified that he left the Respondent's employ under very
amiable terms, his own testimony belies the accuracy of this
assertion. Fiske believed that when he was first employed he
had been told that he would receive an increase, but he never
did. In consequence, he felt badly about this. He testified that
he felt he had done a good job during the entire year, but he
further testified that when he was terminated he felt that the
Company had been unfair to him and had charged him with
responsiblity for production and quality problems over which
he had no control. Additionally, in practically the same
breath he stated that he did not think President Rubin's
opinion of his work was unfair and then that he did not think
it was fair.
At Christmas Fiske received a smaller bonus than other
supervisory personnel including certain foremen. At first he
claimed that he did not know that other supervisors had
received higher bonuses but then conceded that he did know
this fact and that he was upset. Shortly before his termina-
tion, Fiske was relieved of his duties in the plant and was
moved to the office and his salary was reduced. Although he
stated that he believed that this change in his duties and pay
occurred simply so that "his position could be taken over by
the son of the president of the Company," he stated that he
was not upset with the Company or any officer. Additionally,
Fiske was evasive at times and he attempted to create the false
impression that he had discharged three employees for dis-
criminatory reasons at President Rubin's instruction. How-
ever, after close examination Fiske, somewhat reluctantly,
admitted that the Respondent's labor policy had changed
after it had acquired new labor counsel and that Mr. Rubin
had told him of his change in attitude and that he did not
want to discriminate against the employees about whom he
had previously spoken to Fiske. Finally, the Board has stated
that it will not base an unfair labor practice upon the uncor-
roborated and contradicted testimony of a witness who has
been shown to be unrealiable in other matters. Raymond
Buick, Inc., 173 NLRB 1292. Documentary evidence refutes
the testimony of Fiske specifically in regard to the telephone
conversation with Attorney Hudson and his testimony that
all the signatures were obtained on the petition on September
14. In such circumstances, the Board has held that it will
reject that testimony even if the witness had been credited by
the Trial Examiner. Southern Tours, Inc., 167 NLRB 363;
Bourne Co., 144 NLRB 805. See also N.L.R.B. v. Pacific
Intermountain Express Co., 228 F.2d 170; Hot Point Co.,
Division of General Electric Co., 120 NLRB 1768. In short,
I am satisfied that the clear preponderance of the evidence
refutes Fiske's testimony and, accordingly, I discredit him
and reject his testimony. Valley Steel Products Co., 111
NLRB 1338; Cf. N.L.R.B. v. Northern Metal Company, 440
F.2d 881 (C.A. 3).
Inasmuch as I have discredited the testimony of former
Plant Superintendent Fiske, the record contains no evidence
to support the contention that the Respondent initiated or in
any respect was instrumental in the preparation or circulation
of the employee petition. This, therefore, leads to the conclu-
sion, which I make, that the petition is objective evidence that
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the majority of the employees no longer wished to be repre-
sented by the Union.' -
I have not overlooked the fact that a number of employees
testified that they were told by Sparks, who was principally
responsible for soliciting signatures on the petition, that the
purpose of the petition was to obtain wage increases and other
benefits; however, there is no substantial evidence that any
foreman or other official of the Respondent made such repre-
sentations or induced Sparks to express such opinions. I con-
clude, therefore, that the allegations of the complaint to the
effect that the initation, preparation, and circulation of the
employee petitiion was violative of Section 8(a)(1) of the Act
must be dismissed.
As previously noted, the Union was certified on December
9, 1969, and thereafter the parties engaged in some 16
negotiation sessions. On December 4, 1970, they signed a
collective-bargaining agreement which was to be effective un-
til 11:59 p.m., December 8. It will also be recalled that on
August 3, the Union called a strike which continued until
October 1. The Respondent continued to operate with a'work
force composed of some 23 employees who did not go on
strike, additional employees who'were hired during the strike,
and some strikers who returned prior to the termination of
the strike. At the end of the negotiation session on September
22, all issues- had been resolved except for the length of the
agreement and the demand of the Union that the strikers who
had been replaced be immediately reinstated. The spokesman
for the Union proposed that if the strikers were all reinstated
before December 1, he would agree to the proposal of the
Respondent that the contract term would permit the holding
of an election after the end of the certification year. The final
bargaining session was held on September 28. It was at this
meeting that the Respondent advised the Union that it would
negotiate for a longer term agreement, extending beyond the
certification year, if the Unionwould state that it did in fact
represent a majority of the employees. However, no such
claim was made at the September 28 meeting or thereafter.
It was made, for the first time, on February 4., The office of
the General Counsel, in a letter dated November 24, advised
the parties that the Union's appeal from the dismissal of its
8(a)(1), and (5) charge was denied. In that letter, General
Counsel stated:
Since virtually all of the present employees are strike
replacements, the Company's conditioning of its Sep-
tember 22 offer on a contract term running only to the
end of the certification year' could not be shown to have
been based on any consideration other than its reasona-
ble belief that the Union had lost the support of the
employees.
Shortly after the receipt of this letter, the Union telegraphed
the Respondent that it accepted the Respondent's latest offer,
and made no request for a longer contract. The agreement
executed on December 4 provided for no increased benefits
over those that were in effect immediately prior to the execu-
tion of the contract. On December 10, the Respondent re-
ceived from the Union a request that the contract be "ex-
tended"' pending the negotiation of a new agreement. The
Union in its letter made no claim of majority support. On the
same day that the request from the Union was received, the
' I am, of course, aware that there is testimony that the Respondent
believed that a petition to oust the Union was likely to be initiated, but the
fact is that the Respondent did not interfere with its circulation The only
activity that may have occurred on company time was that Caveness wrote
the heading on the petition while he was on the clock All other employee
witnesses testified that they signed the petition on their own time, either
before or after work. See Hamburg Shirt Corporation, 175 NLRB No 148,
Stewart & Stevenson Services, Inc., 164 NLRB 741
Union distributed a leaflet to the employees which contained
the following statement:
If the Union can get,this much when most of you were
not members, think of what could be gained it,most of
you belonged.
On December 14, the Union renewed its request for a 60-day
extension of the contract and further negotiations,' but again
omitted to make a claim that it had a majority support. On
December 17, Respondent replied, noting that the. Union-had
failed to claim majority support and expressing doubt that it
did have a majority. The Respondent stated it was-prepared
to agree to an "immediate secret ballot election to determine
the issue."
It ,was not until February 4, when the -Union again re-
quested negotiations, that it stated in boldface type that a
majority of the employees in the unit were members of the
Union. Later, in a telephone conversation on February 16
with Attorney Coles, the Union offered to present the cards
to him for -inspection and repeated this offer subsequently.
International Representative Hatton conceded that some of
the cards had been obtained prior to the strike and 'in reply
counsel for the Respondent expressed the belief that some of
the employees who had at one time signed membership cards
no longer desired representation ,by the `Union. Counsel
offered to cooperate with the Union in every way possible if
it would agree to an immediate election. When this offer was
refused, the Respondent filed its petition on February 22.
Counsel for the Respondent correctly points out that an
employer may withdraw recognition despite a prior certifica-
tion if the presumption of majority- arising from the certifica-
tion is rebutted by competent evidence relating to the fact of
the Union's majority status, or the withdrawal is predicated
upon a good-faith and reasonably grounded doubt of the
Union's 'continuing majority status. It argues that the, evi-
dence in this case does not support the conclusion that the
Union was in fact the majority representative and, secondly,
that even if the'Union had been the majority representative
the Respondent had a reasonably grounded doubt of its status
which was raised in good faith. It is hornbook law that the
certification presumption is -designed to promote, stability in
collective-bargaining relationships without, however,' mpar-
ing the free choice of employees. It has' been held'that when
agreements are not "effective to create or perpetuate a collec-
tive bargaining relationship" because of their temporary na-
ture, they do not, upon their expiration, operate to' create a
presumption of continuing majority', status. Bender Ship Re-
pair Company, Inc., 188 NLRB No. 86; see also Hill Plumb-
ing Company, 190 NLRB No. 45. 'The' Respondent also
argues that the contract in this case is analogous top rehire
agreements which would be unlawful except for Section 8 of
the Act, and that the Board will not permit, a rebuttable
presumption to arise from such agreements. Davenport Insu-
lations, Inc., 184 NLRB No. 114. '
Moreover, the Respondent argues that even if a presump-
tion arose in this case, it was rebutted by evidence of the
Union's lack of majority. Thus, it points out that when the
agreement expired on December 8, the unit was composed of
34 replacements for strikers, 16 strikers who'had returned to
work, 23 employees who did not participate in the strike, and
a small group of strikers who had not as of then been rein-
stated. In addition, there is evidence that 18 of the 23 non-
strikers personally advised Fiske oil Rubin or both that they
were opposed to the Union. While the Board has in some
cases held that abandonment of a strike does not necessarily
warrant the conclusion that the striker has abandoned the
Union, in the present situation 14 of the strikers not only
abandoned the strike but expressed their opposition' to the
Union as their bargaining agent to' officials`of the Respond-
KAYDEE METAL PRODUCTS CORP 693
exit.' President Rubin testified that he believed that the re-
placements hired during the strike were not in favor of the
Union. The Respondent's Counsel suggests that such a belief
"is reasonable from the mere fact that these employees were
hired to permanently replace Union members and had job
interests that were in direct conflict with interests of strikers
to whom the Union owed its primary loyality." See Stoner
Rubber Company, 123 NLRB 1440; Jackson Manufacturing
Company, 129 NLRB 460, 473, 478; and Pioneer Flour Mill,
174 NLRB No. 174. -
Counsel for the Respondent summarizes the basis for the
Respondent's good-faith doubt of continuing majority status
by listing the following factors:
1. The certification election margin of four (4) votes
meant that a shift of only a few employees' loyalties
would effect the Union's majority. Corvair Div., 169
NLRB No. 26.
2. The Union lost support for its strike.
3. Practically all of the non-strikers and the employees
who abandoned the strike advised Respondent they were
opposed to the Union.
4. Thirty-four (34) "non-union" replacements were
hired.
5. The Union expressed doubts they could win an elec-
tion even if strikers were permitted to vote.
6. The Union agreed to a two (2) [sic] day labor agree-
ment despite Respondent 's offer to negotiate for a longer
agreement if the Union would claim majority support.
7. The Union admitted in a handbill that a majority of
the employees were not members of the Union.
8. The Union failed to claim majority status in its de-
mands even though challenged to do so, but later, after
conducting a two month drive to obtain membership
cards, claimed a majority.
9. When the Union finally claimed majority it admitted
that it was based in part upon Union cards which had
been signed before the strike during which many em-
ployees abandoned the Union as their bargaining agent.
In summary, I find that the Respondent's assertion of a
doubt as to the Union's continued majority status had been
"raised in a context free of unfair labor practices ... "South-
ern Wipers, Inc., 192 NLRB No. 134 and, additionally, that
it had been raised in good faith. Accordingly, I shall dismiss
the allegation that the Respondent unlawfully refused to bar-
gain with the Union.'
E. The Suspension of Kermit Harp
Harp begain working for the Respondent on May 5, 1969,
as a setup man for welders. He was laid off in September of
that year but returned in October when he was assigned to
the buffing department, but later returned to the setup job. He
injured his back on October 21 and was off until June 16,
1970. He worked until the strike begain under Foreman Al-
fred Robinson. He returned the latter part of September and
was assigned to his former job as setup man. He testified that
he was given no instructions by Robinson regarding the
chrome legs of the chairs that he worked on. In December,
so he testified, he noticed that some legs were rusty and he
thereupon asked Robinson what to do with them. He was told
to seperate them. According to Harp, he inquired of Robin-
Including, as I find, Kermit Harp.
I have considered the argument of Counsel for the General Counsel that
the statements made by returning employees regarding their disillusionment
with the Union were too remote from the time the Respondent withdrew
recognition to warrant being relied upon, and constituted hearsay. Counsel
in his brief renewed his motion to strike this testimony of Fiske and Rubin.
The motion is again denied.
son what to do with legs that did not match (i.e., some were
shiny and others were dull) and he testified he was told to run
them as they were.'
Harp served as an observer in the Board election in Sep-
tember 1969 and while he was on strike picketed everyday.
Harp was suspended for 2 days on February 2 by Foreman
Vernon Bolton. Previously, the foreman of the welding de-
partment had been Alfred Robinson, but he quit on January
29. Bolton, before becoming foreman of the welding depart-
ment, had been foreman of the punch press department. Ac-
cording to Bolton, President Rubin told him the first day he
was foreman that seconds were coming back from the weld-
ing department and that he should straighten out the matter,
and was told to watch for "mixed" chrome. Bolton testified
that he, in the afternoon after speaking with Rubin, went into
the welding department and told the men not to mix bright
and dull chrome. He specifically testified that he spoke to
Harp about this matter. He further related that it was a
"standing instruction" to the welding department employees
not to mix shiny and dull chrome legs.
According to Harp, the first day after Bolton was foreman
he said that he did not know a "damn thing" about welding
operations and gave no instructions. The second day Bolton
complained to Harp about mixing bright and dull legs and
Harp replied that the legs had always been run that way. The
following day, so Bolton testified, in the morning he discov-
ered that Harp was setting up the legs improperly and told
Harp not to mix the bright and dull legs. In the afternoon
Bolton stated that he again talked to Harp and told him that
he was still mixing the legs. He testified that the other em-
ployees were not doing so. Thereupon he took Harp to the
office and stated that he would have to lay off for 2 days
because of the rejects.
Former Foreman Robinson testified that in October,
November, and December, 1970 Rubin told him that Harp
was not working properly and that he wanted Robinson to
fire him. Robinson testified that he told Rubin that Harp was
doing as well as the others. According to Robinson, during
the latter part of November Rubin stated that he wanted
those coming back from the strike to be fired and that he
thought Harp was one of the organizers and still working for
the Union. Robinson further testified that he talked to Harp
several times about the chrome legs and told him to check
with him (Robinson) if he was in doubt. In December and
January Rubin told Robinson of customers' complaints be-
cause of mixed shiny and dull legs.
About 10 or 15 minutes after Harp was laid off, Foreman
Bolton reprimanded employee Vester Alexander for mixing
dull and shiny legs and placed a warning slip in Alexander's
personnel file.
Counsel for the General Counsel argues that Harp was
given disparate treatment in comparison with Alexander, and
that this was because of Harp's prounion feelings and activi-
ties which were well known to the Respondent and undoubtly
accounted for the statement made by Rubin to ex-foreman
Robinson in November that he thought Harp was on of the
union organizers and was still working for the Union.
While the case is not free from doubt, I am persuaded that
the evidence does not support the theory of counsel for the
General Counsel. I think it quite unlikely that employees
would regard a 2-day suspension of Harp as "an object lesson
to show... what could happen to a well known Union sup-
porter." As I view the facts, Harp had been previously
warned not to mix legs but continued to do so. This was not
true of other employees. In sum, I find that the 2-day suspen-
' The chrome plating of the legs was performed by an independent con-
cern which is not owned or otherwise associated with Respondent.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sion of Harp was not violative of Section 8(a)(3) of the Act.
Accordingly, I will dismiss the complaint in this regard.
Upon the foregoing findings of fact and the entire record,
I make the following:
CONCLUSIONS OF LAW
1. Kaydee Metal Products Corporation is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Aluminum Workers International Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the
Act.
3. General Counsel has failed to establish by preponder-
ance of the evidence that the Respondent engaged in, the
unfair labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER
The complaint herein is dismissed in its entirety.