L. C. Cassidy & Son, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1968

171 N.L.R.B. 951 (N.L.R.B. 1968)

L. C. CASSIDY & SON, INC.
L. C. Cassidy & Son, Inc. and Sheet Metal Workers'
International Association , Local #503, AFL-CIO.
Cases 25-CA-2798 and 25-RC-3447
June 4, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On February 2, 1968, Trial Examiner John H.
Eadie issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner also found that Respon-
dent had not engaged in certain other alleged unfair
labor practices. He further recommended that the
election held in Case 25-RC-3447 be set aside and
the petition filed therein be dismissed. Thereafter,
the Respondent filed exceptions to the Decision
and a supporting brief; the General Counsel filed
exceptions and a supporting brief; and the Respon-
dent filed an answering 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
In addition to that conduct found by the Trial Ex-
aminer to be in violation of Section 8(a)(1), we
conclude that the Respondent further violated that
section of the Act by the remarks made by Dwane
Cassidy, head of the sales department and a com-
pany official, to employee Price. Cassidy's com-
ment that "you will make more money if the Union
doesn't get in than you will if the Union gets in"
clearly constitutes an illegal promise of benefit.
We agree with the Trial Examiner's conclusion
that the Respondent's unlawful conduct was more
than minimal and caused the dissipation of the
Union's majority. However, in finding that the
Union did in fact represent a majority of the em-
ployees in the unit, we also rely on the testimony of
employee Benjamin Underwood to establish that he
authorized the Union to represent him. Although
we agree with the Trial Examiner that Underwood
171 NLRB No. 136
951
"probably was mistaken" in denying that he signed
the authorization card in evidence, he testified
unequivocally that he did sign an authorization
card. We deem his admitted act of signing a card to
be a valid authorization of the Union to represent
him.' Accordingly, we find that the Union
represented 18 of the 32 employees in the ap-
propriate unit,2 and, for the reasons noted here and
in the Trial Examiner's Decision, conclude that a
bargaining order is appropriate.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , L. C. Cassidy & Son,
Inc., Indianapolis , Indiana, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner 's Recommended Order.
IT IS FURTHER ORDERED that the petition in Case
25-RC-3447 be, and it hereby is, dismissed , and all
proceedings held in connection therewith be, and
they hereby are , vacated.
Dubois Fence & Garden Co., Inc., 156 NLRB 1003, 1004
' Member Brown agrees with the Trial Examiner's findings that all the
authorization cards (with the exception of Underwood's card) are valid
and establish the Union's majority status, but does so for the reasons set
forth in separate statement in the case of Dan Howard Mfg. Co , and Dan
Howard Sportswear, Inc, 158 NLRB 805. Member Brown also agrees with
his colleagues that Underwood's admitted signing of a card is a valid
authorization of the Union
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JOHN H. EADIE, Trial Examiner: This proceeding
was held before me in Indianapolis, Indiana, start-
ing on September 27 and ending on October 11,
1967, on the complaint of the General Counsel
against L. C. Cassidy & Son, Inc., herein called the
Respondent.' The complaint alleges violation of
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended. The General Counsel
and the Respondent filed briefs with the Trial Ex-
aminer after the conclusion of the hearing. The
Respondent moved without objection to correct the
transcript of record in the case. The motion is
granted and received in evidence as Trial Ex-
aminer 's Exhibit 1.
' In Case 25-CA-2798, charges were filed on April 19 and May 22,
1967, and the complaint issued on July 28, 1967 By order dated July 28,
1967, the Regional Director for Region 25 consolidated Case 25-RC-3447
with Case 25-CA-2798 The evidence does not show that the Respondent
filed an answer in Case 25-CA-2798 In its brief the Respondent states that
on August 9, 1967, it filed an answer "denying that it had violated the
Act "
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Indiana corporation with
facilities located at Indianapolis, Indiana, where it is
engaged in the sale, installation, and distribution of
storm and patio doors and insulation. During the
period of 12 months preceding the date of the com-
plaint herein the Respondent received at its Indi-
anapolis facilities goods and material valued at
more than $50,000 which was shipped directly
from points located outside the State of Indiana.
During the same period the Respondent sold and
distributed products and related services for a com-
bined gross value which exceeded $500,000.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association,
Local #503, AFL-CIO, herein called the Union, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
During the early part of January 1967, employee
Virgil Harris talked to other employees about the
possibility of organizing a union at the Respon-
dent 's plant . As a result of these conversations,
Harris called Felix McCartney, regional director of
the AFL-CIO, and asked him to send an organizer
to the plant . McCartney questioned Harris about
the Respondent's business . He also asked Harris to
find out what union the employees desired and to
call him back . Within a few days Harris again called
McCartney and told him that the employees
preferred the Sheet Metal Workers' International
Association . McCartney then mailed some
authorization cards of the AFL-CIO to Harris.2
Harris and four other employees signed
authorization cards on January 30. The first union
meeting for employees was held at the home of em-
ployee David McPeak on February 1. Sometime be-
fore February 9 Harris mailed about 12 signed
cards to McCartney . McCartney called Donald
Johnson , business agent of the Union , and talked to
him about organization of the Respondent's em-
ployees . On February 9 McCartney mailed Johnson
the cards which he had received from Harris.
x The cards in question read.
AUTHORIZATION FOR REPRESENTATION BY
AMERICAN FEDERATION OF LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Thereafter , the Union conducted the campaign to
organize the plant.
On March 2 , 1967, the Union sent the following
letter to Donald Cassidy , president of the Respon-
dent:
I take this opportunity to inform you that
Sheet Metal Workers' International Associa-
tion , Local #503 have been authorized by a
majority of your installation employees to
represent them for the purpose of collective
bargaining . We are willing , if you so desire, to
prove our majority status through a disin-
terested third person mutually agreed upon.
We, therefore , request that you recognize
Sheet Metal Workers ', Local #503 as the ex-
clusive bargaining representative of the above
mentioned employees and that a meeting be
mutually agreed to for the purpose of negotiat-
ing a union contract covering wages , hours and
other working conditions , etc. of the above
mentioned employees.
Hoping to hear from you at your earliest
convenience , we remain,
On March 3, 1967 , the Union filed with the
Board a petition for certification . The claimed unit
was "all installation employees , garage employees,
warehouse employees" but excluding "all office
clerical employees , professional employees and su-
pervisors as defined in the Act."
Willis K. Kunz, attorney for the Respondent,
replied to the Union 's demand letter by letter dated
March 7, 1967 , as follows:
As attorneys for L. C. Cassidy & Son, Inc.,
we acknowledge receipt of your letter of
March 2, 1967 , wherein you assert that the
Sheet Metal Workers' International Associa-
tion, Local #503, has been authorized to
represent Cassidy's employees for the purpose
of collective bargaining . Please be advised that
Cassidy does not believe that your Union
represents a majority of Cassidy's employees in
any appropriate bargaining unit.
Although you indicate a willingness to prove
your majority status through a disinterested
third person, we also note that on March 3,
1967, you filed a petition with the National
Labor Relations Board asking to be certified as
representatives of all Cassidy installation em-
ployees, garage employees, and warehouse em-
ployees . Under the circumstances it would ap-
pear that an election will resolve the question
of representation and that no purpose would
be served by an attempt to determine this
representation by other means.
We would appreciate it if you would address
I desire to be represented by a Union which is part of the AFL-CIO
and I hereby designate the AFL-CIO and/or its appropriate affiliates
as my Bargaining Agent in matters of wages, hours and other condi-
tions of employment
L. C. CASSIDY & SON, INC.
all further correspondence in connection with
this matter to our office.
A hearing in the representation matter was held
on March 28. In the Decision and Direction of
Election dated April 10, 1967, the Regional
Director found the following unit to be appropriate:
All employees of the Employer at its Indi-
anapolis, Indiana , establishment including the
copilot-mechanic3 and over-the-road truck-
drivers, but excluding all office clerical em-
ployees, professional employees, guards,
salesmen , dispatchers , and supervisors as
defined in the Act.
An election was conducted by the Board on May
5. There were 29 ballots cast. Of this number, 10
votes were cast for the Union and 18 were cast
against it. One ballot was challenged. On May 11
the Union filed objections to the election. The
Union's objections are as follows:
1. Mr. Donald Cassidy held weekly meetings
of the employees , discouraging union member-
ship, and attempting to bargain by offering
changes in working condition, and benefits that
could be gotten with out the union.
2. Mr. Donald Cassidy called employees
into private individual meetings , and in these
meetings offered economic benefits to
discourage union membership.
3. Mr. Donald Cassidy offered Foreman
jobs to employees and to certain individuals
hereby again discouraging union membership.
4. Mr. Donald Cassidy terminated the em-
ployment of a Mr. Henry Ross on April 11th
1967. Mr. Henry Ross states that he was
discharged because of his union affiliation.
Charges pending before the National Labor
Relations Board.
5. Mr. Donald Cassidy discharged a Mr. Dil-
lard Rimer one day prior to the election by the
Board, May 4th 1967. Mr. Dillard Rimer also
claims to have been discharged for his union
affiliation.
6. That the Company thru its supervisor's
[sic] did discourage union membership, by not
placing employees with known union affiliation
to work and sending them home when work
was available. And further by the above ac-
tions have forced some employees to quit.
B. Interference, Restraint , and Coercion
1. Monday morning meetings
The Respondent periodically held Monday morn-
ing meetings with its employees. The purpose of
these meetings was to discuss working problems
953
and to give employees the opportunity to voice
their complaints. The meetings were held at least
twice a month. Starting with the meeting held on
March 13 and until the election, Donald Cassidy
talked about the Union along with business matters.
Employees David McPeak, Larry Herman, John
Moore, Dillard Rimer, James LaRoche, and Virgil
Harris testified concerning the statements made by
Cassidy at the meetings. There are only a few issues
of fact raised by their testimony and that of Cas-
sidy.
At the first meeting held on March 13, Cassidy
brought up the subject of the Union, telling the em-
ployees that he knew about the attempt to organize
the plant. He then mentioned some of the disad-
vantages of having the Union, such as dues, and
reviewed some of the benefits that the employees
received from the Respondent. At other meetings it
appears that the employees first may have men-
tioned the Union.
Cassidy stated that the Respondent belonged to
three building associations, including the Marion
County Residential Builders; that the members of
these associations were not unionized and were not
in favor of unions; and that, if the Union got in the
Respondent's plant, the Respondent would lose
business of the members of the associations to com-
petitors. He said that he would not agree to a
"closed shop" in any contract with the Union; that it
would have to be a "pretty damn juicy contract"
before he signed it; and that, if the contract was
"out of reason as far as wages were concerned,"
the Respondent might be forced "to close the
doors." At one meeting Cassidy stated, if the Union
called a strike, the Respondent would continue to
operate by replacing the strikers; and that in such
case, due to the fact that the jobs of the strikers
might be filled by replacements, "they would no
longer have employment." He also stated that, if
the employees went out on strike, they could "stay
out on strike until hell froze over" before he would
give any of his profit to anyone. At another meeting
he told the employees that there was an opening for
a supervisory job, that the Respondent had "two or
three persons in mind," and that "the union situa-
tion" had no bearing in the selection. On several
occasions Cassidy stated that he could make no
promises of benefit because of the union campaign.
However, at one time he stated the he could give
the employees "more" than the Union could give
them. He also told the employees that he was think-
ing of ordering some new trucks, but that such ac-
tion "would not be advisable until a decision had
been made one way or another on the union
matter." When a complaint was made about "elec-
tric heat batt rates," Cassidy stated that he could
3 At the representation hearing the Respondent contended that the
"copilot-mechanic" should be included in the unit The Union contended
otherwise.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not promise anything but that he would " look into
it."
On March 14 employees Moore , Underwood,
and Floyd went to see Cassidy in his office. They
told him that they were there to see what benefits
they could get if they "dropped the union action."
Cassidy replied that he could not promise them
anything "until the union action was officially
dropped ." At the meeting held on March 20, Cas-
sidy stated that three employees had come to his of-
fice and " discussed the possibility of dropping the
union action ." McPeak told Cassidy that the em-
ployees wanted to meet in one of their homes
without management present in order to determine
whether or not the wanted the Union . Cassidy
replied that the ofcers and supervisors would
withdraw and that the employees could use the
Respondent 's conference room for their discussion.
Cassidy reminded the employees that 6 or 8 months
before he had asked them to form a "grievance
committee ," consisting of "a man in the blow de-
partment and one in the bat department"; and
stated , " it's a shame that the union has to come in
and play the third party and go to bat for you peo-
ple when you could very easily have had somebody
doing this for yourself." After the employees met
alone in the conference room , employees
Townsend , McPeak , Wolf, and Floyd went to Cas-
sidy's office . They told him that they " really didn't
want the Union " if they could get some benefits
and some existing problems corrected . Cassidy
replied that he could not promise them anything
but that they all knew that he was a man of his
"word" and "always acted in good faith."
The above findings are based upon credited por-
tions of the testimony of McPeak , Herman, Moore,
Rimer , LaRoche , Harris , and Cassidy. Testimony
contrary to the above is not credited . I do not find
that Cassidy 's remarks contained any unlawful
threats of reprisal , as contended by the General
Counsel . However , I find that Cassidy made an im-
plied promise of benefits if the employees
renounced the Union . He told the employees that
he could give them " more" than the Union could
and that he would " look into " the complaint on the
batt rates . When the four employees came to his of-
fice after the meeting on March 20 and told him
that they did not want the Union if they could get
some benefits, Cassidy replied that he could not
promise anything . But he added that they all knew
that he was a man of his "word" and "always acted
in good faith ." His remarks , taken as a whole,
clearly held out to the employees a promise of
benefits if they rejected the Union.
With respect to his remarks about a committee,
Cassidy denied that he suggested forming one at the
time , but admitted that he reminded the employees
that he previously had asked that they "get together
and form a grievance committee ." In my opinion,
under the circumstances as related and found
above , Cassidy 's statement was tantamount to a
suggestion that the employees form a committee as
an alternative to the Union . Accordingly , I find that
his statement concerning a committee was violative
of the Act.
2. Fred Hackett
Hackett at all times material herein was a super-
visor . About the end of February 1967, Hackett
asked employee Larry Herman what he thought of
the Union . Herman replied that he did not know.
On or about March 20 , Hackett had a conversa-
tion with employee David McPeak . Concerning this
conversation , McPeak testified that Hackett asked
him if he had " heard anything else about the
Union " and if he thought that the employees
needed a union ; that Hackett questioned him as to
who had started the Union at the Respondent's
plant and if employee John Moore had "started
it"; and that , when he replied that he did not know,
Hackett stated , " Well, I know Johnny Moore
started it ." Hackett admitted having a conversation
with McPeak about the Union, and that he had
asked McPeak if he thought the employees needed
a union . Otherwise , he denied the remarks at-
tributed to him by McPeak . I credit the above
testimony of McPeak.
It is found that Hackett 's interrogation of Her-
man and McPeak was violative of Section 8(a)(1)
of the Act.
3. Robert Petty
It is undisputed that Petty is a salesman for the
Respondent . Petty had a conversation with McPeak
on or about March 20. Concerning this conversa-
tion McPeak testified without contradiction that
Petty asked him if he knew any more about the
Union and stated that the Marion Builders Associa-
tion would cease doing business with the Respon-
dent if the Union got in the plant . I make no finding
in this connection since there is no evidence to
show that Petty was a supervisory employee or an
agent of the Respondent.
4. Dallas Holcomb
During about late March 1967, Holcomb, a su-
pervisory employee , went to check a job on which
McPeak and employee Edward Townsend were
working . Concerning a conversation at the time,
McPeak testified without contradiction that he
asked Holcomb if he knew anything about the
Union ; that Holcomb replied that he did not; that
Holcomb then asked him and Townsend if they had
heard "anything else about the Union"; and that,
when they answered that they did not know
anything about it, Holcomb said that he did not
think that they needed a union.
Since McPeak 's testimony shows that he first
questioned Holcomb about the Union , I do not find
that Holcomb 's interrogation was violative of the
Act.
L. C. CASSIDY & SON, INC. 955
5. Dwane Cassidy
Dwane Cassidy, a brother of Donald Cassidy, is
the sales manager of the Respondent . He had a
conversation with employee George Price on May
4. Cassidy opened the conversation by mentioning
that Price had not made "too much money last
summer" when he worked at the Respondent's
Springfield , Illinois , plant , and that he ( Price) was
doing a good job since he had been called back to
the Indianapolis plant . Cassidy then said, "If
everything goes all right this summer and you work
real hard you will make quite a bit more here this
summer than you did over there last summer. . . . I
hope that you do ... because I know that you need
the money.... It looks like the work is going to be
real good. ... I think that you will make more
money if the Union doesn 't get in than you will if
the Union gets in."
I do not believe or find that Cassidy's remarks
constitute a promise of benefit , as alleged in the
complaint.
6. Michael Bindhammer
Bindhammer is the Respondent 's dispatcher.
McPeak testified credibly that on May 8 he was
alone with Bindhammer in his office; that Bind-
hammer received a telephonic call; and that, when
the call was completed , Bindhammer " slammed the
phone down and looked up" and said , " I am going
to get back at these people that gave me trouble
over the Union ." Bindhammer denied making the
statement attributed to him by McPeak . His denial
is not credited . I find that Bindhammer 's statement
to McPeak was violative of the Act in that it con-
tained a threat of reprisal.
7. Donald Cassidy
On May 4 Cassidy had a conversation with Mc-
Peak in the Respondent 's warehouse . Concerning
this conversation McPeak testified to the following:
Well, I was in the office , and Mike Bind-
hammer said , "Before you leave this morning,
Don Cassidy wants to talk to you in the
warehouse . Go out there and wait on him."
And so I went out into the warehouse and he
was'already talking to Jim Pemberton , which is
another operator , and he said , " Wait a minute,
I want to talk to you," so I waited and then he
came over to me and said , "Well, Dave," he
said, "You've got a pretty good head on your
shoulders and do you know that you wouldn't
have a job if the Union were in here on ac-
count of this apartment that you messed up?"
And, of course , I agreed , and he said, "I
wrote you a letter and you will be getting it in
the mail," and he asked me if I got it yet, and I
said no , and he told me that the ones that was
causing the trouble , trying to get the Union in,
was Johnny Moore and Harris and the people
that hadn't been there very long, and he asked
me how long I had been there and I told him
two years, and he said, well, he said, these
troublemakers are on their way out.
He said, "Johnny Moore is on his way out."
He said, "He left a truck parked on a hill
over in Springfield and it rolled down the hill
and he almost lost it," and that's about all I can
remember of that conversation.
Cassidy admitted having a conversation with Mc-
Peak on the date in question and testified, "I
bumped into him in the warehouse.... And as I
walked back I asked him how things were going,
and he said, `Well, fine.' And I said, `Well, tomor-
row is the big day.' ... And he said, `Yeah, tomor-
row is the big day.' And I said, `Well, I hope you
don't forget me." When the Respondent's counsel
summarized McPeak's testimony as to the "messed
up" work at an apartment and asked him if he had
had such conversation, Cassidy testified, "I didn't
at that particular time. I said something to that, per-
taining to the time that he came back from after
laying him off for two weeks, this was brought up.
But I think that he's got his dates mixed up... .
This must have been before [March 6], because it
was bitter cold, I remember." When the Respon-
dent's counsel again recapitulated McPeak's
testimony, including that concerning Moore and
Harris, and questioned him as to whether he had
had this "or substantially the same conversation"
with McPeak, Cassidy testified, "Not substantially
that way, no. It wasn 't that involved at all.... I re-
member the conversation , as I stated just a little bit
ago.... Now, I might have stated something one
way or the other, I don't even recall exactly what it
was at all, it wasn 't that important, but I certainly
don't remember stating what he stated." Cassidy
then denied categorically the statements attributed
to him by McPeak.
I credit the above testimony of McPeak and find
that Cassidy's statement concerning Moore and
Harris was violative of the Act since it contained a
threat of reprisal.
C. The Discharge of Henry Ross
Ross worked for the Respondent from February
1966 until his discharge on April 12, 1967. Except
for the first month of his employment when he was
a helper, he worked as an operator on a batt truck.
He signed a union card on February 1, 1967, and
solicited several other employees to sign cards.
Ross testified that during the morning on or
about February 14, 1967, he posted on the bulletin
board in Bindhammer's office a union leaflet, enti-
tled "Do You Know"; that a number of employees,
including Virgil Harris, Edward Townsend, David
McPeak, and Lowell Maynard, were in the office at
the time; that later that same day Bindhammer
asked him if he was "still for the Union"; that,
when he replied that he was in favor of the Union,
Bindhammer said that Donald Cassidy did not "ap-
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preciate [Ross'] putting that bill on the board";
that late in March Bindhammer again asked him if
he was "still for the Union"; that when he answered
that he was, Bindhammer said that there was not
"any need talking to [Ross] about it"; and that he
replied, "no, that s about right."
Bindhammer testified that he had never seen the
leaflet in question, and that insofar as he knew it
had never been posted on the bulletin board in his
office.4 He denied the above conversations as
testified to by Ross. I credit his denials.
The Respondent has a rule which required em-
ployees to call and notify the office if they were
going to be absent from work because of sickness
or for other reasons. Ross was absent from work
without calling on February 16 and 17. On Februa-
ry 20 Ross was called to the office of Robert Cas-
sidy, vice president and general manager of the
Respondent and a brother of Donald Cassidy and
Dwane Cassidy. Robert Cassidy spoke to Ross
"about being late' and being absent from work and
poor workmanship." He told Ross that he was
being put on "probation" with the hope that his
work and absentee record would improve.
On Friday, April 7, Ross worked on the
"Gastinean job." At or about 4:30 or 5 p.m. that day
Ross reported to the office and spoke to Bind-
hammer. Ross told him that it was a "bad job ...
cut up very badly" and requested a helper in order
to finish the job. Bindhammer said that he would
assign a helper to him "if at all possible" and told
him to report to work the next morning.
Bindhammer did not work on April 8. Ross re-
ported for work and spoke to Hackett, telling him
that he was not going to work unless he had a
helper. Hackett replied that there were no helpers
available. Ross then told Hackett that he was going
home because he was "sick" and that he would
"bring in a doctor's report on Monday." The
Gastinean job was then assigned to employee James
Pemberton for completion. On the previous Friday
Ross had installed "practically all" of the "long
run" and "none of the cut runs" and had per-
formed none of the "caulking" work.7
During the morning on April 10, Ross' wife
called Bindhammer and told him that Ross was
unable to report for work because he was sick with
"a strep throat." Bindhammer requested her "to
keep in touch with [him] and let [him] know when
[Ross] would be in." Ross did not call or report for
work on April 11. At or about 8 a.m. on April 12
Ross called Bindhammer and asked if he was
needed for work. Bindhammer replied that he
could not put him back to work until he (Ross)
spoke to Robert Cassidy. Ross went to the plant at
or about 10 a.m. and spoke to Cassidy. Bind-
hammer was present during part of the conversa-
tion. Cassidy told Ross that he was discharged
because of his absenteeism , poor workmanship, and
complaints from customers. The Union was not
mentioned during the conversation. Cassidy went
into some detail about specific jobs on which com-
plaints had been received from contractors, stating
the nature of the complaint, such as "jobs un-
finished, jobs not done properly." Cassidy men-
tioned the Gastinean job, stating that there were
not "any cut runs installed." Ross denied this and
also denied or explained other poor work for which
he was criticized. At the end of the conversation
Cassidy said, "I hate to let you go.... I am going to
have to ... because it would take six months to
train another man to take your place ... you can
go in and talk to Don Cassidy and Don might give
you your job back.... He gave McPeak's job back
to him." Ross did not speak to Donald Cassidy.
The above findings are based upon the credited
testimony of Robert Cassidy, Bindhammer, Pem-
berton, Holcomb, and Hackett, and partly upon
that of Ross. Denials and contrary testimony of
Ross are not credited.
Bindhammer, Holcomb, and Hackett testified
credibly to complaints about Ross and his, poor
work on a number of jobs during the period from
the fall of 1966 through March 1967. Their
testimony was supported by that of employees Har-
ris, Maynard, and Underwood and of Dale Davis-
son, superintendent of Justus Contracting Com-
pany.
The record shows that between October 31,
1966, and March 28, 1967, 12 employees were
discharged by the Respondent. In one case the em-
ployee was discharged "for reason unreliable and
off work too many days with notice to the Com-
pany." The other discharges were either for un-
satisfactory work or absence "without notice."
I find that Ross was discharged for cause and not
in violation of the Act.
D. The Discharge of Dillard Rimer
Rimer was employed by the Respondent as a batt
operator until his discharge on May 4, 1967. He
signed a union card on February 22, 1967.
Rimer was absent from work without notice to
the Respondent on January 7, 1967. He was absent
without notice on February 20, 21, and 22. On
February 22 at or about 10 a.m. he called Bind-
hammer and told him that he would report for work
on Feburary 23 and that he would explain his
absence at that time. When he reported for work,
Rimer told Bindhammer that he had been "drunk"
' Townsend and Maynard , when questioned about the union leaflet,
testified that they had seen it "at the union hall," that they never saw it
posted on the Respondent 's bulletin board, and that they did not see Ross
post it. Harris and McPeak did not testify in this connection
Ross was I hour and 15 minutes late for work on February 3
" During November 1966, Bindhammer reprimanded Ross for not
completing a job and told him, "it had better not happen again ." Bind-
hammer warned Ross again during February 1967 about his poor work-
manship on a job and marking the job "as finished" on the work order
when it was not completed.
r The evidence discloses that batt operators made more money on a
piece basis for installing long or uncut runs than for other work.
L. C. CASSIDY & SON, INC.
in Cincinnati, Ohio. Bindhammer reprimanded him
for his absenteeism and for not giving notice when
he was absent. He told Rimer "not to let it happen
again " or he would be discharged.'
At sometime during March Rimer and Holcomb
went out on a job together. Holcomb asked Rimer
what he thought of the Union. Rimer replied that
he had worked in factories since he was 16 years of
age, that he had always been in a union, and that he
was "still for the Union." It is found that Holcomb's
interrogation was violative of the Act.
Rimer was scheduled to report for work at 7 a.m.
on Saturday, April 29. He called the plant at or
about 6:45 a.m. and spoke to Hackett. He told
Hackett that he was unable to report for work.
Hackett asked him why he could not work. Rimer
answered that he was "drunk" as he had been "out
all night drinking." Rimer offered to come to work
when Hackett remarked that Rimer was putting
him "in a bind" as he "really needed" Rimer.
Hackett refused the offer, saying that there was "no
point" in his reporting for work if he were drunk.
Rimer did not call or report for work on May 1,
2, and 3. On May 1 Rimer's wife called Bind-
hammer during the afternoon and asked him if he
had seen Rimer as she did not know his
whereabouts. At or about 1:45 p.m. on May 3
Rimer called Bindhammer and asked him if he "still
had a job." Bindhammer replied that he did not
know and that Rimer would have to come in the
following morning and talk to Robert Cassidy be-
fore he (Bindhammer) could put him back to work.
Robert Cassidy discharged Rimer on May 4. He
asked Rimer where he had been. Rimer answered,
"I had been to Cincinnati drunk.... I won't lie to
you." Cassidy said that he had no complaints about
his "workmanship" and that he was "a good
worker," but that he could not "tolerate these days
off from work without any notification or calls of
being sick." Cassidy told Rimer that he should
come back and talk to him "in a couple of weeks,"
and that he would rehire him if he could convince
him (Cassidy) that he could control his drinking so
as not to let it interfere with his work.
Shortly after his discharge Rimer talked to Super-
visor William Floyd.9 Floyd told him that he and
Hackett had interceded for him (Rimer) without
success, and that, if he (Rimer) would return to the
plant "in five to ten days," he was "pretty sure"
that he would be rehired. Rimer asked Floyd if he
thought his discharge was "on account of the
Union." Floyd replied, "No, I don't." Before he left
the plant Rimer spoke to Bindhammer. Bind-
hammer asked him if he could "hold out five or ten
days" and would he return to work if he (Bind-
hammer) called him. Rimer replied that he would
s Bindhammer testified credibly to the above conversations The
Respondent 's records show Rimer 's absences during January and Februa-
ry. Rimer denied being warned by Bindhammer. However, he admitted that
957
return if he did not have "anything better." Bind-
hammer called Rimer on August 16 and asked him
to return to work. Bindhammer told him that he
had called before but had been unable to locate
him.
As related above in connection with the
discharge of Ross, between October 1966 and
March 28, 1967, the Respondent discharged 12
employees for cause, including absenteeism without
notice. I am convinced that the Respondent was not
motivated illegally in discharging Rimer. The
evidence shows that his work was good and that the
Respondent was reluctant to discharge him. In fact,
it appears that the Respondent attempted to have
him return to work shortly after his discharge.
Under all of the circumstances, I find that Rimer's
discharge was for disciplinary reasons and not in
violation of the Act.
E. The Refusal To Bargain
At the hearing the parties stipulated that as of
March 3, 1967, there were 32 employees within the
appropriate bargaining unit. Signed union cards of
18 employees were received in evidence. Of these
only two were authorization cards of the Union.
The balance were cards of the AFL-CIO. The
Respondent contends that the latter were not valid
designations of the Union as the collective-bargain-
ing agent of the employees. The wording on the
AFL-CIO card and the facts relating to its use have
been found above. The Respondent's contention in
this connection is rejected.'
The Respondent also contends that the cards of
employees Maynard, Floyd, Townsend, and Un-
derwood were not valid designations of the Union.
Maynard testified that he signed, dated, and filled
out his union card; that he read all of the printed
matter on the card before signing it; that employee
Virgil Harris asked him if he was "for the union";
that, when he replied that he was, Harris asked him
if he would sign a card; that at the time Harris told
him that "the purpose of the card was to have a
union represent [the employees]," that there would
have to be an election "before the union went in,"
and that "just signing the card didn't make the
union be in"; and that after signing the card he
returned it to Harris. It is clear from Maynard's
testimony that Harris told him that the main pur-
pose of signing a card was to have the Union
represent the employees and that Harris did not
make any misrepresentation, such as saying that the
sole purpose was to obtain an election. I find
Maynard s card to be a valid designation of the
Union.
Floyd testified that he signed and dated his union
card; that he did not read the card before signing it;
he had been absent from work without notice because of his drinking at
leas] once before his discharge and possibly on other days
° Floyd became a supervisor on or about April 28, 1967.
10 Nubone Company, Inc., 62 NLRB 322.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Harris solicited him to sign the card; that be-
fore signing the card he talked with Harris and
Moore about getting a union in the plant; that
"there hadn't been much discussion over it" be-
fore he signed the card; that Harris said, "We're
going to try to get a union in, and we have to have
better than 50% of the men to sign the cards before
there's any need of having an election"; and that he
had been a member of a union before when he
worked for the Ford Motor Company. Harris
testified that he gave Floyd his union card; that he
had discussed the Union with Floyd before Floyd
signed the card; and that Floyd said that he thought
the employees needed a union "to straighten out
some of the things that were going on."
As in the case of Maynard, Harris did not tell
Floyd that the sole purpose of signing a card was to
obtain an election. In fact, Harris statement to
Floyd indicates that one purpose of signing the
cards was in order to get a union in the plant. I find
Floyd's card to be a valid designation of the Union.
Townsend testified that Harris solicited him to
sign a union card; that. after he signed and dated
the card in Harris ' presence , he returned it to Har-
ris; and that before signing the card he read some
and possibly all of the printed matter on the card.
Harris' testimony in this connection corroborates
that of Townsend. In its brief the Respondent con-
tends that the card for Townsend which was
received in evidence may not be counted since it
was not identified either by Townsend or Harris. In-
advertently, when the General Counsel questioned
Townsend about this card, he did not refer to the
exhibit number. Townsend was questioned and
testified as follows:
Q. (By Mr. Fisher) If you will, look at that
card, just the first page; the second page, is just
a photostat, it's just a second page. So if you
will, direct your attention to the top copy and
the backside.
(Document handed to witness.)
Q. (By Mr. Fisher) Is that the card that you
signed, that you testified to?
A. Yes, sir.
I find that the union card in question was signed
by Townsend and was a valid designation by him of
the Union as his bargaining agent.
A card, dated January 30, 1967, for Benjamin
Underwood was received in evidence. It is signed
"Bennie Underwood." Underwood testified that
Moore discussed the Union with him and asked him
to sign a card; that he signed and completely filled
out a card, including the date; that he returned the
signed card to Moore; that he signed the card on or
about January 30; and that he read all of the
printed matter on the card before he signed it. Un-
derwood, when shown the card purportedly signed
by him, at first testified that he did not "think" he
signed that card because he did not spell his first
name with an "ie." He testified that he regularly
spelled his name "B-e-n-n-y," and that his "only
only objection" to the card in evidence was the
spelling of his first name. Underwood admitted that
in an affidavit given to an agent of the Board he
identified the card in question as being the one that
he had signed. Underwood later testified that he
had not written the signature on the card in
evidence and that it was not the card that he had
returned to Moore.
Walter Gallagher, a handwriting expert from the
Postal Inspector's office in Cincinnati, Ohio,
testified to the effect that he had compared Un-
derwood's purported signature with a number of his
known signatures; that in his opinion it was "more
than highly probable" that the same person who
had signed the known signatures also had signed
the questioned document; and that the only reason
why he could not render "an unqualified or positive
opinion" was that he could not make a com-
parison because none of the known signatures was
spelled as it appears on the questioned document.
I agree with the General Counsel's contention
that Underwood probably was mistaken in his
testimony. However, since Underwood denied that
he signed the card in question and Gallagher was
unable to give an unqualified opinion, I believe and
find that Underwood s card can not be counted."
In sum, the evidence shows that there were 17
valid designations of the Union as the employees'
collective-bargaining agent, and that the latest date
on any of these cards was March 1, 1967. Ac-
cordingly, I find that on and after March 1, 1967,
the Union represented a majority of the employees
in the appropriate unit.
As set forth above, the Union in its demand letter
of March 2, 1967, offered to prove its majority
status through a disinterested third party mutually
agreed upon. The following day, March 3, the
Union filed a petition for an election. In its letter of
March 7 the Respondent stated that it did not be-
lieve that the Union represented a majority of em-
ployees in any appropriate unit, noted that the
Union had filed a petition for certification, and
refused the Union's offer to prove majority by stat-
ing, "Under the circumstances it would appear that
an election will resolve the question of representa-
tion and that no purpose would be served by an at-
tempt to determine this representation by other
means."
The Respondent contends that, since the Union's
demand was coupled with a petition, the Respon-
dent had a choice; that the Respondent chose an
election because of its good-faith doubt of claimed
majority; and that the Respondent's refusal to bar-
gain, regardless of its conduct after March 7, was
not unlawful since it was motivated by a good-faith
doubt.
I find it unnecessary to determine whether or not
the Respondent's refusal to recognize the Union
was violative of Section 8(a)(5) of the Act. As
" Trend Mills, Inc, 154 NLRB 143
L. C. CASSIDY & SON, INC.
found above, after the filing of the petition and be-
fore the election President Cassidy in his talks to
groups of employees suggested the formation of a
grievance committee as an alternative to the Union
and made an implied promise of benefits if the em-
ployees renounced the Union . He also made a
threat of reprisal because of union activity during
his conversation with McPeak on the day before
the election . During this same period McPeak and
Rimer were unlawfully interrogated by Hackett and
Holcomb." This unlawful conduct during the
preelection period was more than minimal and
clearly caused the dissipation of the Union 's majori-
ty and invalidated the election. Under the circum-
stances and since the Union had obtained valid
authorization cards from a majority of the em-
ployees before the Respondent refused recognition,
a bargaining order , instead of ordering a new elec-
tion, is appropriate to restore the status existing
prior to the violations of Section 8(a)(1) of the
Act.13
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. By interfering with, restraining , and coercing
its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent has
engaged in unfair labor practices within the mean-
ing of Section 8(a)(I) of the Act.
3. All employees of the Respondent at its Indi-
anapolis, Indiana, establishment , including copilot-
mechanic and over-the-road truckdrivers, but ex-
cluding all office clerical employees, professional
employees , guards, salesmen, dispatchers, and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6 )and (7) of the Act.
THE REMEDY
I shall recommend an order directing the
Respondent to cease and desist from its unfair labor
practices , to bargain with the Union upon request,
and to post appropriate notices.
I further recommend that the election conducted
in Case 25-RC-3447 be set aside , that the petition
therein be dismissed , and that all proceedings pur-
suant thereto be vacated.
Accordingly , on the basis of the foregoing
findings and conclusions , and on the entire record,
11 Other unlawful interference by Hackett and Bindhammer took place
outside the preelection period.
" Wausau Steel Corp v. N.L.R B ., 377 F 2d 369 (C.A 7)
1' In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
959
I recommend , pursuant to Section 10(c) of the Act,
issuance of the following:
RECOMMENDED ORDER
A. Respondent, L. C. Cassidy & Son, Inc., its of-
ficers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Sheet Metal Work-
ers' International Association, Local #503,
AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
All employees of the Respondent at its Indi-
anapolis, Indiana, establishment, including
copilot-mechanic and over-the-road truck-
drivers, but excluding all office clerical em-
ployees, professional employees, guards,
salesmen, dispatchers, and supervisors as
defined in the Act.
(b) Suggesting the formation of a grievance
committee as an alternative to the Union.
(c) Expressly or impliedly promising benefits to
employees in an effort to persuade them to reject
the Union as their bargaining representative.
(d) Interrogating employees concerning their
union activity or threatening them with reprisals
because of such activity.
(e) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of all employees in the above-described appropriate
unit, and embody in a signed agreement any un-
derstanding reached.
(b) Post at its plant at Indianapolis, Indiana, cop-
ies of the attached notice marked "Appendix."14
Copies of said notice, on forms provided by the Re-
gional Director for Region 25, after being duly
signed by the Respondent or its authorized
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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.
(c) Notify the Regional Director for Region 25,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'-'
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order"
15 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The election in Case 25-RC-3447 is set aside, WE WILL NOT interrogate our employees
and that proceeding is hereby vacated. concerning their union activity or threaten
APPENDIX
NOTICE TO ALL EMPLOYEES
them with reprisal because of such activity.
WE WILL NOT in any like or related manner
interfere with our employees in the exercise of
their right to join or assist a labor organization,
to bargain collectively, or to engage in con-
certed activities for mutual aid or protection.
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby Dated
notify our employees that:
WE WILL bargain upon request with Sheet
Metal Workers' International Association,
Local, #503, AFL-CIO, as the exclusive
representative of our production and main-
tenance employees.
WE WILL NOT suggest the formation of a
grievance committee as an alternative to the
Union.
WE WILL NOT promise benefits to our em-
ployees in an effort to cause them to reject the
Union as their bargaining representative.
By
(Representative ) (Title)
L. C. CASSIDY & SON, INC.
(Employer)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone 633-8921.