Morse Chain Co.

National Labor Relations Board - Board Decisions

Apr 25, 1969

175 N.L.R.B. 575 (N.L.R.B. 1969)

MORSE CHAIN COMPANY 575
Morse Chain Company, Eberhardt -Denver Plant and
International Association of Machinists and
Aerospace Workers and its District Lodge No. 86,
AFL-CIO. Cases 27-CA-2308 and 27-CA-2393
April 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On July 29, 1968, Trial Examiner Howard Myers
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions and a supporting brief and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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 Respondent's exceptions,
the briefs, and the entire record in these cases and
hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner, only to the
extent consistent herewith.
On October 5, 1966, pursuant to a consent
agreement, an election was conducted in a unit of
the Respondent's employees. Of the approximately
176 employees eligible to vote, 171 voted; 115
ballots were cast against the Union, and 55 for, with
I challenged ballot.' Approximately 8 months later,
on June 21, 1967, the Union began another
campaign to organize the Respondent's employees.
Although precluded from an immediate election,'
the Union's announced purpose was to obtain
authorization cards from a sufficiently large number
of employees so that it could demand bargaining
without the necessity of an election, under the
Board's decision in Conren, Inc.' On July 17, 1967,
it made such a demand on the Respondent.
'These findings are based, in part , upon credibility determinations of the
Trial Examiner to which the Respondent has excepted . After careful review
of the record , we conclude that these credibility findings are not contrary
to the clear preponderance of all relevant evidence . Accordingly , we find
no basis for disturbing these findings . Standard Dry Wall Products. 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
'In 1961, the United Steelworkers of America had lost an election
among the Respondent's production and maintenance employees.
'Section 9(c)(3).
' 156 NLRB 592, enfd. 368 F.2d 173 (C.A. 7), cert . denied 386 U.S.
974.
Although agreeing with the Trial Examiner that
the Respondent has, by conduct detailed in the Trial
Examiner's Decision, violated Section 8(a)(1) of the
Act, we disagree with his further conclusion that the
Respondent also violated Section 8(a)(5) by refusing
to recognize and bargain with the Union upon
receipt of the Union's letter of July 17, 1967.
Initially, the Trial Examiner found that the
Respondent never "manifested" a doubt concerning
the Union's majority status and that it relied solely
on its contention that there was no obligation to
recognize the Union within 1 year after an election.
However, it is apparent that this interpretation of
the facts is inaccurate. Thus, the Respondent's letter
of July 20, in rejecting the Union's request, stated:'
As you know an election by secret ballot held last
October upon your petition showed
overwhelmingly that our employees do not favor
union representation. An earlier election had
similar results. All the information we have
indicates to us that our employees' feeling is
unchanged.
The letter went on to indicate that the Respondent
was willing to cooperate in the holding of a
Board-supervised election as soon as possible. On
August 2, the Respondent returned a contract
proposal submitted by the Union on July 31,
reiterating its doubt of a Union majority and stating
that the proposal had not been considered and
would not be unless and until the Union was
authorized to represent the employees in a Board
election.
It is apparent from the above that the
Respondent's letters of July 20 and August 2 may
only be construed as statements of doubt as to the
Union's majority status. Indeed, the Trial Examiner,
in footnote 93 of his Decision, recognizes this in his
statement that "Admittedly, Respondent acquired
no new evidence between July 18 and July 31, to
support its July 20 claim that it doubted the Union's
majority representative status." The record also
clearly reveals that the Respondent, during the
hearing, continued to rely on and advance its claim
of doubt of the Union's majority. Thus, the
Respondent's plant manager testified that the
Respondent refused recognition because the Union
had been beaten by a 2 to 1 margin in the election,
held within the year, and the Respondent still had
approximately the same employees and
approximately the same number of employees. The
Respondent's exceptions to the Trial Examiner's
Decision and its brief in support thereof press this
position.
Under all the evidence in this case, we find that
the General Counsel has not sustained his burden of
establishing that Respondent's rejection of the
Union 's bargaining demand was in bad faith and
thus violative of Section 8(a)(5). The Union had
recently participated in a Board election which it
'This letter is quoted at greater length by the Trial Examiner.
175 NLRB No. 98
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lost by a decisive vote. Furthermore, the interference
found herein, while not isolated, does not involve the
type of gross misconduct which demonstrates an
adamant rejection of the collective-bargaining
principle, particularly when considered in a Conren
situation involving Section 9(c)(3) of the Act and
where the Respondent consistently expressed doubt
as to the Union's majority status. We note also that
the relatively insubstantial violations of Section
8(a)(1) found here occurred during a brief period
prior to the Union's request for recognition, and
that the record does not show that such conduct was
repeated thereafter. It would be difficult to find in
these circumstances that the Respondent's conduct
made a fair election impossible. Finally, the
Respondent in its letters to the Union clearly recited
the background of the election as the basis for its
doubt as to the reliability of the cards, and the
Respondent offered to cooperate fully in the holding
of a Board election at the earliest possible date. In
this entire context, we are not persuaded that the
Respondent's conduct was such as to establish an
unlawful refusal to bargain or to require the
issuance of a bargaining order in order to effectuate
the policies of the Act. Accordingly, we shall
dismiss the complaint insofar as it alleges violations
of Section 8(a)(5).6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Morse
Chain Company, Eberhardt-Denver Plant, Denver,
Colorado, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees
concerning their activities and sympathies on behalf
of any labor organization.
(b) Promising its employees benefits in order to
discourage membership and activities in support of
the Union.
(c) Threatening its employees with loss of benefits
if they remained union members.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act,
except in a manner permitted by the provisions of
Section 8(a)(3) of the Act.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the Act.
(a) Post in conspicuous places at its Denver,
Colorado, operations, including all places where
notices to employees are customarily posted, copies
of the attached notice marked "Appendix."7 Copies
of said notice, on forms provided by the Regional
'In view of our decision herein, we need not determine whether the
Union in fact had valid cards from a majority of the employees, and we
therefore do not consider or pass upon the Trial Examiner 's discussion and
findings concerning the cards
Director for Region 27, shall, after being duly
signed by an authorized representative of the
Respondent, be posted immediately upon receipt
thereof, and maintained by it for 60 consecutive
days thereafter, in such conspicuous places.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 27, in
writing, within 10 days from the date of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices
not specifically found herein.
'In the event this Order is enforced by a decree of the United States
Court of Appeals , there shall be substituted for the words "the Decision
and Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT unlawfully interrogate our employees
regarding their union activities and sympathies, nor will
we promise our employees benefits or threaten our
employees with loss of benefits in order to discourage
membership and activities in support of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the right to self-organization, to form labor
organizations, to join or assist the International
Association of Machinists and Aerospace Workers and
its District Lodge No. 86, AFL-CIO, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act.
Dated By
MORSE CHAIN COMPANY,
EBERHARDT -DENVER
PLANT
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, New Custom
House, 721-19th St., Denver, Colorado 80202, Telephone
303-297-3551.
MORSE CHAIN COMPANY
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner. This consolidated
proceeding, with the General Counsel of the National
Labor Relations Board (herein called the'General Counsel i
and the Board), and Morse Chain Company,
Eberhardt-Denver Plant (herein called Respondent) each
being represented by counsel, and International
Association of Machinists and Aerospace Workers and its
District Lodge No 86, AFL-CIO (herein called the
Union), being represented by two officials thereof, was
heard before Howard Myers, the duly designated Trial
Examiner, at Denver, Colorado, on 9 hearing days
between January 30, and February 23, 1968, upon an
amended consolidated complaint, dated November 30,
1967, issued by the General Counsel, for and on behalf of
the Board, through the Director of Region 27 (Denver,
Colorado), and Respondent's answer duly filed on
December 8, 1967.2
The amended consolidated complaint, as further
amended at the hearing, based upon a charge and three
amended charges (Case 27-CA-2308) duly filed by the
Union on June 29, July 24, August 16, and November 9,
1967, respectively, and upon a charge duly filed by the
Union on November 17, 1967 (Case 27-CA-2393), alleged,
in substance, that Respondent engaged in certain unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended from time to
time, herein called the Act.'
Upon the entire record in the case and from his
observation of the witnesses, I make the following-'
FINDINGS OF FACT
I. RESPONDENTS BUSINESS OPERATIONS
Morse Chain Company, Eberhardt-Denver plant, a
division of Borg-Warner Corporation, is a New York
corporation, having its principal offices and place of
business at New York, New York.
At its Eberhardt-Denver plant, which is located at 4650
Steele Street, Denver, Colorado, the employees of which
This term specifically includes counsel for the General Counsel
appearing at the hearing
On the same day, November 30, 1967, the amended consolidated
complaint was issued, the aforesaid Regional Director , for and on behalf of
the Board , also issued an order, by virtue of the authonty vested in him by
Section 102 33 of the Board ' s Rules and Regulations , Series 8, as
amended , consolidating , for the purpose of hearing , the above numbered
cases
Specifically, the consolidated amended complaint , as further amended at
the hearing , alleged that ( a) on certain stated dates Respondent, through
certain named supervisors , interfered with , restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act
by engaging in certain unlawful conduct , (b) Respondent , since on or about
July 17, 1967 , and specifically on certain other stated dates, has failed and
refused to recognize or to bargain collectively with the Union as the
collective -bargaining representative of Respondent ' s employees in a certain
claimed appropriate unit notwithstanding the fact that the Union at all
times since July 17, 1967, has been designated and selected as such
representative by a majority of the employees in said claimed bargaining
unit, and (c) on or about November 6, 1967, Respondent unilaterally, and
without notice to or consultation with the Union , changed the then existing
conditions of employment by reducing the hours of work of the unit
employees and by increasing said employees ' hourly rate of pay
On April 8, 1968, the General Counsel and Respondent ' s counsel filed
briefs which have been carefully considered
577
are the only ones involved in this proceeding, Respondent
is engaged in, and during all times material was engaged
in, the manufacture, sale, and distribution of speed
reducer units.
During the 12-month period immediately preceding the
issuance of the complaint herein, which period is
representative of all times material, Respondent shipped
from its Denver plant to customers located outside the
State of Colorado finished products valued in excess of
$50,000. During the aforesaid representative 12-month
period, Respondent's out-of-state purchases of goods and
materials used in the course and conduct of its Denver
plant operations exceeded $50,000 in value.
Upon the basis of the foregoing facts, I find, in line
with established Board authority, that Respondent is
engaged in , and during all times material was engaged in,
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act and that its business
operations meet the standard fixed by the Board for the
assertion of jurisdiction.
iI THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to
membership employees of Respondent
Ili. THE UNFAIR LABOR PRACTICES
A Prefatory Statement
On September 6, 1966, the Union filed a petitions with
the Board's Twenty-seventh Regional Office (Denver,
Colorado) seeking to be certified as the statutory
collective-bargaining representative of Respondent's
employees in the bargaining unit set out in said petition.`
On October 5, 1966, the aforementioned Regional
Director conducted a secret ballot election among the
employees in the appropriate unit . Of the appropriate 176
employees eligible to vote, 171 thereof voted; 115 ballots
were cast against the Union and 55 for. The ballot of one
voter was challenged.
On October 13, 1966, the then acting Director of
Region 27, certified the results of the election finding that
the Union had not been designated the
collective-bargaining representative of the employees
involved '
B Interference, Restraint , and Coercion; Refusal to
Bargain Collectively with the Union
1. The refusal to bargain collectively
a. The appropriate unit
The amended consolidated complaint, as further
amended at the hearing, alleged and the answer admitted
that all persons employed at Respondent's Denver plant,
but excluding office clerical employees, and supervisors as
'Case 27-RC-3080
The unit found appropriate in said proceeding was All persons
employed by Morse Chain Company, Eberhardt -Denver plant , 4650 Steele
Street, Denver , Colorado , but excluding office clerical employees,
salesmen, guards , professional employees and supervisors as defined in the
Act
'Pursuant to a petition filed by the United Steelworkers of America with
the Board in 1961 , the Regional Director of Region 27 held a secret ballot
election among Respondent 's Denver-Eberhardt plant production and
maintenance employees. The Steelworkers lost that election.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defined in the Act constitute a unit for the purpose of
collective bargaining. Upon the record as a whole, the
Trial Examiner finds that at all times material, all
Respondent's Denver plant employees, salesmen, guards,
professional employees, and supervisors as defined in the
Act constituted, and now constitute, a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act with respect to grievances, labor
disputes, rates of pay, wages, hours of employment, and
other conditions of employment. The undersigned further
finds that said unit insures to Respondent's employees the
full benefit of their right to self-organization and collective
bargaining, and otherwise effectuates the policies of the
Act."
b. The Union's majority status in the appropriate unit
There was introduced into evidence by the General
Counsel a list compiled by Respondent containing the
names of 216 bargaining unit employees in Respondent's
employ on July 17, 1967,9 the date on which the Union
wrote Respondent demanding recognition as the
collective-bargaining representative of the employees here
involved.
On behalf of the General Counsel there were offered
and received in evidence 118 cards expressly authorizing
the Union to represent the signers thereof for the purposes
of collective-bargaining.
The 118 cards, referred to immediately above, plus the
Union's authorization cards of Delbert Craig (dated June
27), James Ducey (dated June 21), and Robert W Runk
(dated June 22), were in the Union's possession on or
prior to July 1710
Respondent, in support of its contention that the Union
did not represent an uncoerced majority when it made its
initial demand for recognition on July 17, maintained at
page 19 of its brief, "Of the 78 employees who testified as
to the signing of their own card, 47" of those witnesses
testified they signed the card for the purpose of getting an
N L.R.B. election," and hence, Respondent's argument
runs, the cards of said 47 persons should not be counted
in support of the Union's majority status.
The cards of the 47 named persons are discussed
seritiam immediately below:
Carl Green, called as a General Counsel witness,
testified on direct examination that he signed, dated, filled
in two union authorization cards - One on June 12 and
the other on June 21; that he received the June 12 card
from Duane Arterburn, a coworker, on the day he signed
'This unit is the same as that found appropriate for the purposes of the
October 5, 1966 Board -conducted election (Case 27-RC-3080)
'All dates hereinafter mentioned , unless otherwise indicated , refer to the
year 1967
"The cards of Craig, Ducey, and Runk were not offered in evidence
because, as the General Counsel explained , their employment with
Respondent had ceased prior to July 17 Under the circumstances, the
cards of Craig, Ducey, Runk will not be considered in determining the
Union's majority status as of July 17, or at any time thereafter
"Namely, Carl Green, DeForest , James Dennis, Cook , Frakes, Cooper,
Gardner, James Green, Shaefer , Medina, Rickard, Wilson, Pryor,
Schnaltz, Stratton , Salazar, Allen , Anderson , Clark, Roberts, Legvold,
McClure, Jeanpierre , Arterburn, Bishop , Schippert, Dusch, Pfeifer, Kugi,
Graham, Hinton, Dick , Eastin, Chenoweth, Heidnck, Brown, Lucci, John
Dennis, Bryan, Adamson , Ruiz, Van Meter , Martin, Johnson, McDuffie,
and Fong
it; that after signing, dating, and filling in said June 12
card he mailed it the same day to the Union;" that he
received the June 21 card from Arterburn "one or three
days" prior to June 21, that the June 21 card was an
authorization card used by the Union in 1966;" that he
signed said June 21 card because Arterburn told him that
the June 12 card was "no good" and it was therefore
necessary for him to sign an authorization card the Union
was then using; and that he read, signed, dated, and filled
in the June 21 card and returned it to Arterburn on June
2 l.14
"The Union' s name and address appear on the front of the card (a
so-called "business reply" postage paid card) The card is postmarked June
12 and the Union' s receipt stamp indicates that it was received on June 13
'This card reads as follows
Authorization for Representation Under the
National Labor Relations Act
I the undersigned employee of MQRSE CHAIN CO.
COMPANY
4650 STEEL ST DENVER. COLO.
ADDRESS OF COMPANY
hereby authorize District Lodge No 86, International Association of
Machinists , AFL-CIO (Telephone SHerman 4-3189) to represent me and,
in my behalf, to negotiate and conclude all agreements as to hours of
Labor, Wages, and other employment conditions This authorization
supersedes any similar authority previously given to any person or
organization
My Signature Carl J. Green Date June 12, 1967
My Adress 7320 Dexter Phone 288 4594
Kind of Work O.D GRINDER Dept GRINDING
Present Wage Scale 2 36 PER HR . Shift . Day Swmg_L
Graveyard-
Do your receive a night shift bonus" YES
"This card reads as follows.
YES, I WANT THE lAM
I the undersigned , an employee of
(Company) Morse Chain Co.
hereby authorize the International Association of Machinists and
Aerospace Workers (IAM) TO ACT as my collective bargaining agent
with the company for wages , hours and working conditions It is my
understanding that I will be invited to ioin the iAM
NAME (print) . Carl J Green DATE 6-21-67
ADDRESS (pent) 7420 Dexter CITY Commerce City
DEPT Grinding SHIFT Night PHONE 288 4594
Classification _ n n G.-icr 7
SIGN HERE X Carl J. Green
NOTE This authorization to be SIGNED and DATED IN EMPLOYEE'S
OWN HANDWRITING YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY
FEDERAL LAW
Received by (initial). DEA
The words, "YES, I WANT THE IAM," appearing at the top of the card,
are in bold three-point type, white print on red background All the cards
referred to in the instant proceeding , except Green 's June 12 card, bear
the same printing as Green 's June 21 card
MORSE CHAIN COMPANY
Green further testified on direct examination that he
knew Vincent H. DeForest, a Respondent employee, that
he acted as a "go-between between Arterburn and Mr.
DeForest"; that "previously" to DeForest "signing a card
I asked him if he would be interested in signing a card,
that I was asked by Mr. Arterburn to ask him"; that
when DeForest replied that he might be interested, he said
to DeForest, "I'll get you one. If you want to sign it, fine;
if you don't, that's fine"; that a "couple of days" or "a
week" after he gave DeForest a union authorization card
he saw DeForest sign it, after work, in the employees'
locker room;" and that DeForest returned the signed
card to him and he, in turn, gave it to Arterburn.
Green then testified on direct-examination as follows:
Q. Was there any discussion about an election at the
time?
A. The way that I understood - the way it was
explained to me -
TRIAL EXAMINER: Who explained it?
THE WITNESS- Mr. Arterburn - that this was a card
requesting a union vote - not a vote for the union at
the time that you turned the card in, and that is the
same way I explained it to Mr. DeForest.
Q. (By Mr. McCabe) Now, what do you mean this
was not a vote?
A. Well, it just seemed - it turned out that these
cards are not to be a vote for the union. They get so
many percentage, they can come in and say -
aribtrate with us or else - we were under the
assumption - at least, I was, and I gave the same
assumption to Mr. DeForest that this was a request for
the union to come and request a vote
Q. Did Mr Arterburn - what did Mr. Arterburn
tell you that led you to believe that?
A. Just exactly what I got through telling you.
Q. Did he say that is the only thing the card would
be used for?
A. That's right. That's the way I was led to believe.
Q. Now, again , what words were you told?
A. I don't remember exactly what words I was told,
but in the nut shell that this was just a request for the
union to request a vote. That this was not a vote for the
union to come in and say, "Well, bargan [sic] or else."
Q. Did you read the card before you signed it9
A. I sort of breezed through it. I should have read it
a bit closer. To my chagrin I found this out a little
later. Then I found out the damage had been done.
Q. Did you ever ask for your card back?
A. No, I didn't.
On cross-examination by Respondent's counsel, Green
was asked, "Was there any discussion at the time Mr.
DeForest signed his card as to what he thought the effect
of this card would be?", and he answered, "I said in [my]
previous testimony that we thought that it was just a call
for a union vote " Green then testified that he did not sign
an authorization card during the Union's 1966
organizational drive, that after he had signed the June 21
union authorization card he heard "rumors going
"The record establishes that DeForest signed his authorization card on
June 23
579
around," but could not "say for sure who I heard it from"
the "statement in relation to those
[authorization]cards, `Sign now and it's $10.00; if the
union gets in and you haven't signed, it's $50.00"'; that he
received the June 21 card from Arterburn "between one
and three days" prior to June 21; that he signed said June
21 card at home; and that he did not attend any union
meeting because, "Secondly, I am not what you call a
union man , but it's getting - first, to beat the rush in
case there is a lower union fee should the union get in -
that's fine; that's money I save"; and that he "didn't
really pay any attention", when asked by Respondent's
counsel, "Now, were you present when Mr. Arterburn was
giving authorization cards to any other employees?"
DeForest, who was in the hearing room during the
entire time Green was testifying, was the next witness. On
direct examination by the General Counsel, DeForest
testified that he received a union authorization card from
Green; that he read the card but "not very thoroughly";
and that he signed and dated the card on June 23.
Arterburn testified on direct examination that he had
been in Respondent's employ for about 5 years; that
because "he was very unhappy with the company," he
telephoned, and within a day or two, called upon
Meacham," a Grand Lodge representative of the
International here involved, and the person who personally
conducted the Union's 1966 and its 1967 organization
campaigns among Respondent's employees, that at
Meacham's home they talked about unions in general,
what the Union had accomplished for employees at other
plants and what the Union could accomplish for
Respondent's employees; that before leaving Meacham's
home, Meacham gave him some union authorization cards
for distribution among Respondent's employees; and that
(on some undisclosed date) Meacham instructed him "to
pick up the [signed union authorization cards] and bring
them to Meacham.
Arterburn further testified on direct examination, that
he attended the second of the two organizational meetings
held on June 21;" that besides signing a union
authorization card at said meeting he also signed the
attendance sheet which Meacham had prepared.
On cross-examination by Respondent's counsel,
Arterburn testified that commencing "right after" the
meeting he attended on June 21, he handed out union
authorization cards to some of his coworkers at which
"Arterburn was in error when he placed this incident as having taken
place on June 18, his call and visit to Meacham apparently took place
about a week prior to the date fixed by him This finding finds support by
Meacham ' s credited testimony which shows (1) the day following the
aforementioned telephonic conversation with Arterburn and the latter's
visit to his home , he mailed letters, dated June 13, addressed "Dear
Supporters and Friends" to about 20 Respondent employees who had
assisted in the Union 's 1966 organizational campaign , requesting each of
them "to assist in organizing for a majority representation among all
production and maintenance employees" and to meet with certain union
officials on June 21 at a place to be announced later, (2) on June 14,
Meacham sent letters, addressed "To All Inside Committee Members," to
the aforesaid approximately 20 employees , informing them of the time and
place of the scheduled June 21 meeting In addition, (a) Arterburn testified
that when he met with Meacham at the latter's home , Meacham gave him
some union authorization cards which Meacham requested Arterburn to
distribute among Respondent 's employees , and (b) Carl Green testified,
and the undersigned finds , that he received a union authorization card
from Arterburn on June 12 and he signed it that day
"The first of these meetings was held from about 2 to about 4 p m for
the night shift and was attended by seven Respondent employees. The
other meeting commenced at about 4 30 p m . and was attended by 13
day-shift employees of Respondent
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time he "told them that there would be an election"; that
he got the idea that there would be an election from the
fact, "The year before the cards were filled out were for
an election, and that was part of where I got the idea, I
suppose, and then I think another reason was that at the
meeting1s somebody said, `Well, we're starting kinda
early, you know.' This was in June, and we still had till
October before we could have a vote, and George
[Meacham] says, 'Well, we'll get an early start"';" and
that he signed an authorization card only because he
"expected" that an election would be held "when the one
year was up."
Arterburn, although never requesting the return of his
union authorization card, ceased being active in behalf of
the Union around July 7. In fact, he ceased (1) requesting
his coworkers to sign authorization cards, which he did
prior to the aforesaid date at all available times - before,
during, and after work - on and off company property;
(2) attending union meetings , and (3) having any contact
whatsoever with Meacham.20
Regarding what transpired, and what he and others
said, at each of said two June 21 meetings, Meacham,
credibly and without contradiction, testified that he asked
the employees, upon their entering the meeting, or shortly
after they had entered, to write their names, addresses,
telephone numbers, and their departments on the paper he
had prepared for such information; that each employee
did as requested; that, among other things, he asked the
employees, "How much interest there was in the plant for
organizing"; that when "they told me there was a lot of
interest" he "advised them that in view of the fact that we
had an election eight months before that there could not
be another election, but that in view of recent rulings of
the Board and upheld by the Circuit Court of Appeals,"
that we did have another avenue and that was through
demanding recognition if enough people authorized us to
represent them"; that he also "told them if they wanted to
serve as an in-plant committee , we would start in
organizing the plant"; that when the employees expressed
their willingness to have the Union represent them and
"to serve as an in-plant committee ," he distributed union
authorization cards; that at the first of the two meetings
five of the seven employees attending signed union
authorization cards; 12 that at the second meeting, 9 of the
13 employees attending signed similar cards;23 that before
the close of each June 21 meeting some employees took
unsigned union authorization cards for the purpose of
distributing them among their coworkers; and that
arrangements were made for Arterburn to collect the
authorization cards signed by Respondent's night-shift
employees who would then turn the cards over to him and
for Morgan to collect the authorization cards signed by
Respondent's day-shift employees who would then turn
the cards over to him.
"Held on June 21
"Arterburn testified that he did not know who said "Aren ' t we starting
early ," but, "It might have been me"
"Arterburn, however , did obtain a signed authonzation card on July 12,
from Jerry Cook which he turned over to James Ducey Regarding Cook's
card , Arterburn testified that it "was the last card that I got signed, and
that was more or less just on a bet with Ducey . He said that I didn't have
enough guts to go get it signed , and I said I did "
"Referring to Conren, Inc , etc , and et ano v N L R B , 368 F 2d 173
(C A 7)
"Namely, Arterburn , Bruce Badsky, Ernest Carter, James Ducey, and
Ronald Groetkin
"Namely, Arthur Morgan, George Dick , Harold Dumakowski, Marvin
In the light of the Trial Examiner's observation of the
conduct and deportment at the hearing of Arterburn, Carl
Green, and DeForest, and after a very careful scrutiny of
their testimony, all of which had been carefully read, and
parts of which have been reread and rechecked several
times, I find that Arterburn, Green, and DeForest signed
their respective cards, on the dates they bear without
being told by anyone that the cards were to be used for
any purpose other than what the cards stated they were to
be used; namely, the designation of the Union as their
collective-bargaining representative. Although, Green
attempted to give the impression that he signed the card
because he assumed from what Arterburn had told him,
that the card was merely a request that a "union vote" be
had, he admitted he found out later to his "chagrin" that
the card he signed was "not a vote for the union at the
time that you turned the card in," he, nonetheless, never
requested the return of the card after he discovered, as he
testified, "To my chagrin, I found this out a little later.
Then I found out the damage had been done."
In addition, Arterburn testified that he received the
signed card from Green but nowhere in his testimony is
there any mention that he made any remark which could
lead Green to assume that the card was to be used for any
purpose other than what it explicitly said, in large, bold
letters, "YES, I WANT THE IAM "
Furthermore, although DeForest, who was present in
the hearing room throughout Green's entire examination
and testified immediately after Green had been excused
from the witness-stand, there is absolutely nothing in
DeForest's testimony of any mispresentation by Green or
by anyone else as to the purpose of the card or that
DeForest signed it because of any coercive remarks made
by anyone connected with the Union or made by anyone
soliciting signatures to union authorization cards.
I also find that Green signed the June 12 and the June
21 cards absent any coercive remarks from anyone
connected with the Union or from anyone soliciting
signatures to union authorization cards or because of any
misrepresentation of the purpose of the cards.
I further find that Arterburn's testimony that he signed
the authorization card on June 21, because he expected it
would bring about a Board-conducted election sometime
after October 1967, is, to say the least, patently false. This
finding becomes inescapable when consideration is given
to: (1) Arterburn impressed me as being above average
intellectually and hence proficient enough to read and
comprehend the clear and unambiguous statement of
representation on the card, (2) the fact that he initiated
and then spearheaded the Union's 1967 organization
campaign , (3) attended the June 21 meeting at which
Meacham stated, in no uncertain words, that no election
could be held until October, but if sufficient number of
employees designated the Union their collective -bargaining
representative then the Union could and would demand
recognition from Respondent as such representative, (4)
attend all union meetings prior to about July 7, when his
active participation in the Union's affair apparently
ceased, and (5) secured more signed authorization cards,
prior to July 7, than most union adherents."
Gassman, Robert B Laing, Forrest Neal, Nelson Begay, and Leonard
Anthony
"It is significant to note at this juncture that during the evening of June
21, Kenny Huston, Arterburn 's foreman and immediate supervisor, came
to Arterburn's machine and asked Arterburn if he had been to the union
meeting that day Huston asked if he were for the Union, and Arterburn
replied that he was because of the benefits the Union could secure for the
employees
MORSE CHAIN COMPANY
Under the circumstances, Arterburn's, Green's, and
DeForest's purported afterthoughts as to what they
thought the cards meant cannot negate the overt act of
having signed the cards designating the Union as their
collective-bargaining representative.25 Accordingly, upon
the entire record in the case, I find, contrary to
Respondent's contention, the authorization cards of Carl
Green, Vincent DeForest, and Duane Arterburn are valid
and that the said cards should be counted in support of
the Union's majority status.
James Dennis, a General Counsel witness, testified and
I find, that about a week after he had been employed by
Respondent, a coworker handed to him, and also to "the
other guy" with whom he was working, union
authorization cards, that he could not recall who handed
him the card; he had no discussion with the person who
handed him said card, except that said person asked him
if he wanted a card; that he "glanced through" the card;
filled in the information called for thereon; dated it (June
30), signed it, and a few hours later returned the signed
card to the person from whom he had received it; and
that, although the person who gave him the card said
nothing "about the card being for an election," he signed
it because, "We heard it was for a vote so we [sic] signed
it."
Upon the record as a whole, I find James Dennis' card
is valid and that it should be counted as such in support of
the Union's majority status.
James Curtis, a General Counsel witness, testified that
he is a high school graduate; that he had been a
Respondent employee for about 15 months; that James
Ducey handed him the union authorization card which he
read, signed, filled in the information called for, dated it
(June 21), and then returned it to Ducey; that at the time
the card was given to him, Ducey asked if he were
interested in the Union; that he never was told by anyone
about an election; and that he had attended two union
meetings.26
Upon the record as a whole, I find that James Curtis'
card is valid and that it should be counted in support of
the Union's majority status.
Robin Frakes, a General Counsel witness, testified, that
he has been in Respondent's employ for over 8 years; that,
although he did not read the authorization card which
Arterburn handed him, he filled in all the information
called for on the card, dated it (June 30), and then handed
it back to Arterburn; that the only discussion he had with
Arterburn about the card was, "He [Arterburn] just said
if I signed this card there would be a vote as the previous
year"; and that he was never present when Arterburn gave
an authorization card to, or even spoke to, any employee
about such cards.
Frakes meticulously printed all the information
requested on the authorization card, except his signature.
It is therefore safe to infer, which I do, that Frakes'
testimony that he did not read the card is unworthy of
belief. Under the circumstances, I find that Frakes signed
the card for the sole purpose of designating the Union his
collective-bargaining representative and that it is valid and
that the card should be counted in support of the Union's
"See, for example, N L R B v. Gordon Mfg Co , 395 F.2d 668 (C A
6), decided June 6, 1968
"Since the first meeting of the Union was on June 21, it follows that
whatever meetings Curtis attended must have been subsequent to his
signing the authorization card This finding is buttressed by Curtis'
credited testimony to the effect that he probably attended the second union
meeting since "everybody" talked about a meeting which had been held
pnor to any he had attended
581
majority status.
William Cooper, a General Counsel witness, testified
that he worked for Respondent for 1 year; that he read
the authorization card which he received from Phillip
Hamilton, a coworker; that he read the card, filled in the
information requested thereon;27 and signed it on the date
it bears (July 5).
Upon the record as a whole, I find that William
Cooper's card is valid and that the card should be counted
in support of the Union's majority status.
Brian Gardner, a General Counsel witness, testified that
he has been a Respondent employee for about 5 years;
that he read and signed the union authorization card
which James Ducey had given him; and that as he was
leaving the plant on July 5, the day he signed said card,
Ducey asked him to sign the card if he were interested in
the Union.
Upon the record as a whole, I find that Gardner's card
is valid and that the card should be counted in support of
the Union's majority status.
James Green testified, on direct examination by the
General Counsel, that he has been in Respondent's
employ for approximately 18 months; that on July 7,
James Ducey, "asked me if I wanted to sign" a union
authorization card; that when he replied in the affirmative,
Ducey handed him an authorization card which he read,
filled in all the information called for, dated it (July 7),
and then signed it.
On cross-examination, Green testified that when Ducey
handed him the card, Ducey said, "Well, this was
supposed to be an election, these cards"; that he was
never "present at any time when Mr. Ducey told any
other employees that the card would be for an election";
that Ducey did not "say anything about $10.00; $50.00
later,"28 adding, however, "There was plenty of talk like
this"; that he could not recall from whom he heard the
above quoted expression, but, to quote Green, "I don't
believe [Ducey] ever" made such a statement.
The pertinent portion of Green's redirect examination is
as follows
Q. (By Mr. McCabe)29 Was it your testimony James
Ducey told you if they got enough cards there would be
an election?
A. Yes, sir.
Q. When did he tell you that?
A. Before I signed the card.
Q. He told you that before you signed the card?
A. Yes, sir.
Q. But, did he tell you that is the only thing the card
would be used for?
A. Well, if the union did happen to come in, they
could also save you $40.00.
Q. If the union should come in, how -
A. If there was a vote.
Q. Now, are you using James Ducey's words or
using your words?
A. Well, this is what he told me.
TRIAL EXAMINER: Who gave you the card?
"The requested information was printed by him
"The expression, "$10 now, $50 later " refers to some discussion
regarding reduced initiation fees offered to any employee who desired to
become a union member pnor to the Union becoming the
collective-bargaining representative.
"Counsel for the General Counsel
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: Jim Ducey. Actually, there were two
men. Jim Ducey and Arterburn were together.
TRIAL EXAMINER: And who -
THE WITNESS: Arterburn. I think that's his name.
TRIAL EXAMINER: You mean Duane Arterburn9
THE WITNESS Yes, Sir.
Upon the entire record in the case, coupled with the
fact that Green gave me the distinct impression that he
was studiously attempting to conform his testimony to
what he believed to be to the best interest of Respondent,
I find, (1) Ducey did not tell Green that the proffered card
was for the purpose of obtaining an election, (2) that
Green signed the card for the sole purpose of designating
the Union his collective- bargaining representative, (3) that
James Green's authorization card is valid, and (4) that the
card should be counted in support of the Union's majority
status.
Frank Schafer, a General Counsel witness, testified,
and I find, that he is presently employed by Colorado
Industrial Bank; that he was employed by Respondent
from January 1967 until the following November; that on
June 23, a coworker named Schmidt gave him and
another employee, Robert Bishop, union authorization
cards; that Schmidt said, when he handed the cards to
him and Bishop, to quote Schafer, "He wanted to know if
we wanted the union to represent us, we should go ahead
and fill the card in; if enough were filled in, we could have
the union come in to our company"; and that he read,
filled in the information requested on the card, dated it,
signed it, and then returned the card to Schmidt.
Upon the record as a whole, I find Frank Schafer's
card is valid and that the card should be counted in
support of the Union's majority status.
Robert Bishop, a General Counsel witness, testified,
and I find, that he is now employed at the Pinehurst
Country Club; that he was in Respondent's employ from
March 6 until October 13, 1967; that on June 23, Paul
Schmidt30 gave him a union authorization card; that he
took the card home, read it, filled in the information
requested on the card, dated it, signed it, and then
returned it to Schmidt.
When asked by Respondent's counsel what he thought
"the effect of signing that card would be," Bishop replied,
"Well, at the time I signed it, I just thought whatever it
says on there. I don't know what it says now. I was
willing to listen to what the union had to offer."
Upon the record as a whole, I find that Robert
Bishop's is valid and that the card should be counted in
support of the Union's majority status.
William Medina, a General Counsel witness, testified
that he has been in Respondent's employ for about 22
months; that he received a union authorization card from
William Decker, a fellow worker, on June 29; that he read
the card; that he was not positive if he filled in all the
information requested on the card, but he did date it,
signed it, and then returned the card to Decker.
Medina testified on cross-examination that it was his
"understanding, that the purpose of the card was so there
would be an election"; and that Decker had mentioned
"that" about a week or so before he got the card from
Decker.
Upon the record as a whole, and despite Medina's
"understanding" as to the purpose of the card," I find
that William Medina's card is valid and that the card
should be counted in support of the Union's majority
status.
"Apparently the same individual about whom Schafer testified
William Decker, a General Counsel witness, testified,
and I find, that he is presently employed by M.D.C.
Products; that prior to ceasing work at Respondent's plant
on August 7, he had been employed there for about 18
months; that on June 21, James Ducey gave him a union
authorization card, read it, dated it, signed it, and then
returned it to Ducey; and that the only conversation he
had with Ducey at that time about the Union was, "How
we was doing."
Upon the record as a whole, I find that William
Decker's card is valid and that the card should be counted
toward the Union's majority status
Lowell Rickard, a General Counsel witness, testified,
and I find, has been in Respondent's employ for about 18
months; that Bruce Badsky, a coworker,72 gave him a
union authorization card which he read, filled in the
information requested on the card, dated it (June 21), and
then returned the card to Badsky; and that no
conversation transpired at the time Badsky gave him the
card.
Upon the record as a whole, I find that despite of
Rickard's testimony on cross-examination that when he
signed the card, "I just thought they'd have an election;
that's what they did the year before," Lowell Rickard's
card is valid and that the card should be counted in
support of the Union's majority status.
Rickey Wilson, a General Counsel witness, testified,
and I find, that he could not recall the name of the person
who gave him the union authorization card which he read,
filled in the information requested on the card, dated it,
signed it, and then on June 21, delivered it to Arterburn,
and that the card had been given to him a couple of days
prior to his signing it.
Upon the record as a whole, and despite Wilson's
testimony on cross-examination that he "thought there
would be some sort of an election,"" I find that Rickey
Wilson's card is valid and that the card should be counted
in support of the Union's majority status.
Urias Pryor, a General Counsel witness, testified, and I
find, that he has been in Respondent's employ for
upwards of 12 years; that he received a union
authorization card from James Ducey; that he could not
recall whether he read the card because, "I had been
through this four or five other times"; that he filled in the
information requested on the card, dated it (June 21) and
then returned it to Ducey; and that no one told him that
there would be an election at the time he signed the card
given him by Ducey.
Upon the record as a whole, I find that Urias Pryor's
card is valid and that the card should be counted in
support of the Union's majority status.
Max Schmaltz, a General Counsel witness, testified,
and I find, that when Arterburn handed him the
authorization card, the following transpired, "He simply
told me that if I signed the card, he didn't tell me it would
be for an election, but what he did tell me, he said it
wouldn't count as a vote"; that he took the card home,
read the card, filled in the information requested on the
card, signed it (June 26); and that the next day he
returned the signed card to Arterburn.
"To presently undertake a search of the deepest recesses of Medina's
mind as of June 1967, in order to fathom motivation in face of the clear
and unambiguous language of the card, impresses me as a chimerical and
futile exercise
"Badsky attended one of the two aforementioned June 21 meetings
"Wilson also testified on cross-examination that 'no one told him there
would be an election
MORSE CHAIN COMPANY 583
Upon the record as a whole, I find that Max Schmaltz'
card is valid and that it should be counted in support of
the Union's majority status.
George Stratton, a General Counsel witness, testified,
and I find, that he has been in Respondent's employ for
upwards of 5 years; that Art Morgan, a coworker," gave
him a union authorization card, which, after keeping said
card overnight he read it, filled in the information
requested on the card, dated it (June 30), signed it, and
then returned the card to Morgan; that he had no
conversation with Morgan when the latter handed him the
card; and that thereafter he signed a membership
application and paid the required $10 initiation fee.
Upon the entire record in the case, I find, despite
Stratton's testimony on cross-examination that Morgan
told him that the card "was for trying to vote the union
into the shop" and that he thought "in a way" the card
was to be used for "a vote," the undersigned finds that
George Stratton's card is valid and that the card should
be counted in support of the Union's majority status.
Ike Salazar, a General Counsel witness, testified, and I
find, that he has been in Respondent's employ for about
18 months; that either James Ducey or Arterburn handed
him a union authorization card which he read, filled in the
information requested on the card, dated it (June 23),
signed and then returned it to Arterburn; that the only
conversation which took place when the card was given to
him was that either Ducey or Arterburn "asked me to
sign" the card; and that thereafter he signed a union
membership application and paid the required $10
initiation fee.
Upon the entire record in the case, I find, despite
Salazar's testimony on cross-examination, "I thought they
would have an election before the year was up for the
union to have another election"; that Ike Salazar's card is
valid and that the card should be counted toward the
Union's majority status.
John Allen, a General Counsel witness, testified, and I
find, that he has been in Respondent's employ for about 4
years; that he received a union authorization card from
James Ducey, read it, filled in the information called for
on the card, dated it (July 8), signed it , and then returned
the card to Ducey; and that at the time he received the
card from Ducey the only conversation they had was that
Ducey said, "Let's get to work on getting the union thing
started."
Upon the record as a whole, I find that John Allen's
card is valid and that the card should be counted in
support of the Union's majority status.
Bruce Allen, a General Counsel witness, testified, and I
find, that he has been in Respondent's employ for about 3
years; that on or about June 20, Ronald Groetkin" gave
him a union authorization card; that he read the card,
filled in the information called for on the card, dated it
(June 21), signed it, and returned the card to Groetkin;
and that when Groetkin handed him the card, Groetkin
said, "It was a vote card rather than a card for a vote."
Upon the entire record in the case, I find that the card
of Bruce Allen is valid and that the card should be
counted in support of the Union's majority status.
Darrell Anderson, a General Counsel witness , testified,
and I find, that he . has been in Respondent 's employ for
about 10 months; that he received a union authorization
card in the mail ; that he read it, filled in the information
"Morgan attended one of the two June 21 meetings and thereafter was
very active soliciting his coworkers to sign union authorization cards.
"Groetkin attended one of the two June 21 meetings.
requested thereon, dated it (July 21), and then mailed it to
the Union about 2 weeks after he had received it."
Upon the record as a whole, I find, despite Anderson's
testimony on cross-examination that two coworkers,"
who, apparently were not officially connected with, or
agents of, the Union, told him that the card "was not for
a vote and you [the employees] will get an election," that
Darrell Anderson's card is valid" and that the card
should be counted in support of the Union's majority
status."
Dennis Small, a General Counsel witness, testified, and
I find, that he has been in Respondent's employ for about
3 years; that he received a union authorization card,
together with some other union material at the plant gate;
that he took the card home, read the card, filled in the
information requested thereon, dated it (July 4), signed it
at home in his wife's presence, and then mailed it to
George Meacham, the Union's Grand Lodge
representative and its chief campaign leader.
Upon the record as a whole, I find that Dennis Small's
card is valid and that it should be counted in support of
the Union's majority status.
Richard Roberts, a General Counsel witness, testified
that he is presently employed by Mine and Smelter
Supply Company; that previously to said employment he
worked for Respondent from about October 1966 until
about November 1967; that, Orville Sackrider, a fellow
employee, told him about a week or two prior to June 21,
"We were going to get some cards so the union would
have an idea how many people were in favor of the
union"; that Sackrider gave him a union authorization
card which he read, filled in the information called for
thereon, dated it (June 21), signed it, and then returned
the card to Sackrider; and that he signed the card
because, "I was in favor of the union."
Roberts further testified, and I find, that Sackrider and
James Ducey each gave him a union button (about the
size of a silver dollar) and he openly wore one of said
buttons in the plant commencing about a week after he
had signed the authorization card; and that he also signed
a union membership application and paid the $10
initiation fee.
Upon the record as a whole, I find that Richard
Roberts' card is valid and that it should be counted in
support of the Union's majority status.
Gary Legvold, a General Counsel witness, testified, and
I find, that he is presently employed by FTS Corporation;
that he worked for Respondent from about February 20
until about December 5, 1967; that someone in the plant
gave him a union authorization card and he also received
such a card at the plant gate; that he read the cards, filled
in one of the cards, dated it (June 26), signed it, and then
delivered the card to a person whose name he could not
recall.
Legvold further testified, and I find, that on two
separate occasions he wore a union button on the job; and
that he signed the authorization card "to get the union
into the company, to represent us."
"The Union 's date stamp indicates that it was received on July 24.
"Mike Martin and Dennis Small.
"Anderson read the card prior to signing it; the language thereon is clear
and unambiguous; he had the card in his possession about 2 weeks before
he signed and mailed it to the Union ; hence he did not sign the card
heedlessly.
"Since the card was signed and received by the Union after the Union
had made its initial demand for recognition , the card, obviously , cannot be,
and it is not being , considered with respect to that particular demand of
the Union.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record as a whole, I find that Gary Legvold's
card is valid and that it should be counted in support of
the Union's majority status.
John McClure, a General Counsel witness, testified,
and I find, that he is presently unemployed; that he
worked for Respondent from February 1967 until about
January 1968; that Bruce Badsky gave him a union
authorization card, that he read the card, filled in the
information requested thereon, dated it (June 21), signed
it, and then returned it to Badsky.
McClure further testified, and I find, that when Badsky
gave him the card, Badsky said, "they were trying to get a
union - the card would help us get a union in and we
could vote, and it was to join the union"; that he signed
the card because "at the time I wanted a union in and I
believed that if it helped get the union in the plant, I
would sign it."
Upon the entire record, I find that, despite McClure's
testimony on cross-examination, "It was my
understanding that if I signed the card and enough of
them were signed, we could have an election," John
McClure's card is valid and that it should be counted in
support of the Union's majority status
Louis Jeanpierre, a General Counsel witness, testified,
and I find, that he has been in Respondent's employ for
about a year and 4 months, that over a period of 3 or 4
weeks James Ducey and he discussed the Union; that
during said period Ducey gave him two union
authorization cards which he read; that he filled in one of
the cards Ducey gave him, then dated it (July 7), signed it,
and returned the signed card to Ducey; that he was not
sure what Ducey actually said during the aforementioned
3-4 weeks discussions but he thought it was something
like, "This is for an election, or something around there. °0
Upon the entire record in the case, coupled with the
fact that Jeanpierre thought over the question of whether
he should sign the card for a matter of weeks, clearly
shows that he did not sign the card heedlessly, in face of
the clear and unambiguous language of the card.
Therefore, I find that Louis Jeanperre's card is valid and
that the card should be counted in support of the Union's
majority status
James Dusch, called as a Respondent witness, testified
that he has been a full-time employee of Respondent since
July 1961,°1 and is presently a leadman in the shipping
department; that in the absence of the foreman, he is a
supervisor,42 that he signed a union authorization card
during the Union's campaign which is the subject matter
of the instant proceeding; that Art Bogaard, in the
presence of employee Joseph Pfeifer and former employee
Don Kreiger, gave him a union authorization card; that he
read and signed the card and then returned it to Bogaard;
that he signed the card because he wanted an election.
Dusch further testified that, although he spoke to
Bogaard about the Union and authorization cards in
general on about two or three occasions prior to the time
he received the card, Bogaard said upon giving him the
card he signed, "If we could get enough cards there
would be an election"; that in his conversations with
Bogaard prior to signing his authorization card, "I told
'OJeanpierre added to the above quote , "Really, I can't be sure exactly
what [Ducey] said "
"Prior to graduating from high school , Dusch worked as a part-time
employee in Respondent 's plant
"There is no contention that Dusch is a supervisor within the meaning of
the Act
him [Bogaard] that I thought the union would be good for
the plant and good for the employees"; and that he
attended a union meeting but could not recall whether it
was held prior to or after he had signed an authorization
card.
Dusch's testimony that he apparently signed the
authorization card relying on Bogaard's statement, "If we
could get enough cards . . there would be an election"
does not ring true. This finding is buttressed by Dusch's
own testimony that prior to his signing the card he told
Bogaard, "I thought the union would be good for the
plant and good for the employees." In addition, Dusch
appeared to me as being a person of more than average
intelligence This being so, it is safe to infer, and I do,
that Dusch, after reading, filling out, dating, and signing
the card did not realize that the card - especially in view
of the clear and unambiguous language contained thereon
- was a collective-bargaining representative designation
and not a request for an election. Under the
circumstances, I find that the card of James Dusch is
valid and that the card should be counted in support of
the Union's majority status.
Jospeh Pfeifer, a Respondent witness, was in the
hearing room throughout Dusch's entire examination and
the next witness called, testified that he has been in
Respondent's employ since August 1965, that Bogaard, in
the presence of Dusch and Don Kreiger, gave him a union
authorization, that he could not recall if Bogaard made
any statement at the time nor could he recall talking
about the card; that "everybody knew that the union was
trying to get in and that they was [sic] going to pass out
cards to see whether or not we wanted an election," that
he got the idea that an election would be held from "more
or less rumor going around"; that he did not think
Bogaard mentioned an election; that before he signed the
card he, Dusch, and Kreiger talked "about that we wanted
the union . . and I think we talked if they got enough
cards that it would bring it to a vote"; that he read the
card and signed It; 43 and that no one told him there would
be an election.
Regarding the authorization cards of Dusch, Pfeifer,
and Kreiger, Bogaard, who attended one of the two
aforementioned June 21 meetings and who was very active
on the Union's behalf, testified, as a General Counsel
witness, that he gave Dusch a union authorization card
and that Dusch returned it signed, with the date (June 26)
filled in; that he gave Kreiger a union authorization card,
which Kreiger signed in his presence, and Kreiger gave
him the entirely filled out, signed, and dated (June 26)
card; that he gave Pfeifer a union authorization card
which Pfeifer returned to him completely filled out,
including signature and date (June 26); and that he
delivered the said cards to Meacham.
Upon the entire record in the case, I find that the cards
of James Dusch, Jospeh Pfeifer, and Don Kreiger" are
valid and that they should be counted in support of the
Union's majority status I further find that the signers of
said three cards each intended to designate the Union as
his collective-bargaining representative when he signed the
card.
Merle Schippert, a "legally" blind person, was called as
a Respondent witness and testified that he has been in
Respondent's employ since July 22, 1966; that he received
a union authorization card from James Ducey while he,
"The card bears the date of June 26
"Kreiger did not testify His card was received in evidence through the
credited testimony of Bogaard
MORSE CHAIN COMPANY 585
Ducey, and Bill Decker, a Respondent employee and a
chum of Ducey, were in the plant's parking lot; that he
could not read the card because he did not have his
special reading glasses with him, but was able to read the
words, "YES, I WANT THE IAM" because they were in
large letters; that Ducey told him the purpose of the cards
was for the holding of an election; that he signed the card
because he was "a little bit annoy" by Ducey's asking him
to sign a card; and that about a week after he had signed
the card he heard that the card was not for an election but
was for some other purpose, at which time he asked
Ducey for the return of the card; and that Ducey said he
could not return the card because it "had already gone
in.,,
Ducey, who was called as a witness prior to Schippert's
examination, testified that he gave the card to Schippert,
saw Schippert sign it, and received the signed card from
Schippert;45 that he read the card to Schippert because of
Schippert's affiliation and told Schippert that the card
authorized the Union "to come in for collective
bargaining and whatever else involved in the union", that
he did not tell Schippert anything about an election.
In view of the fact that Schippert requested Ducey to
return his card prior to any union demand for recognition,
I will not consider Schippert's card in support of the
Union's majority status.
John Kugi, a Respondent witness, testified that he has
been in Respondent's employ about 14 years; that when
Bogaard gave him a union authorization card, Bogaard
"didn't mention anything"; that he "glanced over" the
card and then signed it,46 that Lee Miles was also present
when he signed the card; that, although no one told him
that the card was for an election, he nonetheless thought it
was for that purpose; and that on May 20, 1967, he
executed a union membership application and paid the $10
initiation fee.
Upon the entire record in the case, I find that the card
of John Kugi is valid and that the card should be counted
in support of the Union's majority status.
George Dick, a Respondent witness, testified that he
has been in Respondent's employ since October 25, 1966;
and that he attended the second of the aforementioned
June 21 meetings at which he signed a union authorization
card in Meacham's presence
Dick then testified as follows.07
Q Now, what was said by Mr. Meacham about the
cards at that meeting9
A. About the card specifically, I don't remember him
saying anything one way or the other
Q. What, if anything, was said about an election at
that meeting?
A Well, as I recall, he said something to the effect
that he wanted to get together with as many of the men
as possible before the election came up, which it
couldn't be held until a year after the prior election,
which was before I got there, in October.
Upon the entire record in the case, especially
Meacham's credible testimony concerning what he told
the people attending the two June 21 meetings about his
desire to secure union recognition from Respondent
without the necessity of a Board-election, I find that
George Dick's card48 is valid and that the card should be
"The card is dated June 30
"Kugi's card , dated June 26, was received in evidence through the
credited testimony of Bogaard prior to Kugi testifying
"Dick also testified regarding Meacham buying alcoholic drinks for the
people attending this meeting This matter will be discussed infra
"This card is dated June 21
counted in support of the Union's majority status
Jerry Hinton, a Respondent witness, testified that he
has been in Respondent's employ for about 16 months;
that during a "break," Bogaard walked over to where he
and "a bunch of guys," included therein were Phil
Martinez and Joe Gonzales, were sitting, "and handed"
him a union authorization card, asking, "If I'd sign it and
bring the union in",d9 that the day he received the card,
he read it, took it home, signed it at home, and the
following day went to Bogaard's work area and handed
the signed card to Bogaard.
Upon the record as a whole, I find that the card of
Jerry Hinton is valid50 and that the card should be
counted in support of the Union's majority status
Richard Graham, a Respondent witness, testified that
he has been a Respondent employee for over 8 years, that
while in his car during the luncheon period, apparently on
June 27, the date of the card, Bogaard gave him a union
authorization card; that after glancing over the card, he
signed it and then handed it to Bogaard; and that one of
the reasons, "I didn't read it [the card] thoroughly was
that I was under the impression that it was to get a
majority of the cards to call an election"; and that no one
ever told him that an election would be held.
Upon the record as a whole, I find that the card of
Richard Graham is valid51 and that the card should be
counted in support of the Union's majority status
Danny Eastin, a Respondent witness, testified that he
has been in Respondent's employ for about 6 years, that
he attended, at the suggestion of Art Morgan, the second
of the two aforementioned June 21 meetings, that he
received a union authorization card at said meeting, but
did not sign it at that time; that he also received cards, at
some later undisclosed date, from Morgan and from
Harold Dumakowski, 52 that he signed an authorization
card at home and his wife "mailed it in";" that he
"imagined" he was in the plant when Dumakowski gave
him a union authorization and "It might have been his
card I signed "
Upon the record as a whole, I find that the card of
Danny Eastin is valid and the card should be counted in
support of the Union's majority status.54
Dumakowski's credited testimony discloses, in part,
that Dumakowski told Eastin when he gave Eastin the
authorization card that the purpose of the card was to get
the plant organized so that the Union could become the
employees' bargaining representative.
Irven Chenoweth, a Respondent witness, testified that
he has been in Respondent's employ for over 9 years, that
because he "was irritated that day,"55 he went to Marvin
Gassman's5B work area and asked Gassman for a union
authorization card; that Gassman then went to his tool
box - located some five paces away - got an
authorization card, and handed it to him, that when he
asked Gassman for the card, "I probably said I'd like to
sign one", that he took the card back to his work area in
"Hinton added , " He [Bogaard ] never said that it [the card] was bringing
up for an election or what"
"Hinton's card is dated July 7
"Graham's card is dated June 27
"Dumakowski and Morgan attended the same June 21 meeting which
Eastin attended
"Eastin' s card is dated July 18
"Since Eastin's card is dated after the Union made its original demand
for recognition , said card will not be considered in support of the Union's
majority status with respect to this particular demand
"Apparently on July 5, the date the authorization card bears
"Gassman attended the second June 21 meeting
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the laboratory, signed it, and then took the card to
Gassman and handed him the signed card; that before he
signed the card he read it and "It sounded rather severe."
Upon the entire record in the case, I find that Irven
Chenoweth's card is valid and that the card should be
counted in support of the Union's majority status.
Ronald Heidrick, a Respondent witness, testified that
he has been a Respondent employee since July 13, 1966;
that Arterburn approached him at his machine and asked,
"If I wanted to sign a card," and handed him a union
authorization card;57 that he "understood it was for an
election";58 that he did not see any of the authorization
cards being distributed during the 1967 campaign prior to
the time Arterburn handed him one; that he asked
Arterburn "what it [the card] was for, if it was for an
election, and he [Arterburn] said yes"; that he did not
recall whether he signed the card at the time Arterburn
gave it to him; that he "probably" retained the card 2 or
3 days prior to handing the signed card to Arterburn who
had come to his machine for the card; that he did not see
Arterburn hand out or receive any union authorization
cards; that he read the card Arterburn gave him before he
signed it, including the words, "YES, I WANT THE
IAM."
Upon the entire record in the case, coupled with the
fact that Heidrick gave me the distinct impression that he
was studiously attempting to conform his testimony to
what he considered to be to the best interest of
Respondent, it is found that Ronald Heidrick's card is
valid59 and that the card should be counted in support of
the Union's majority status.
Colman Brown, a Respondent witness, testified that he
has been in Respondent's employ for about 18 months;
that while on a "break" a "guy had [sic] my card, so I
just took the card and come on back and signed the
card";" that he could not recall who handed him the
union authorization card, but said person worked in a
department other than his, that the person who handed
him the card made no comment whatsoever; that prior to
the above-described incident he had heard, "They was
[sic] going to try and get a union in there, so I took the
card because the year before we had tried to get a union.
We all voted. I voted against it. So I just took the card
and went off"; and that no one told him that the purpose
of the card was to secure "a vote."
Upon the record as a whole, I find that Colman
Brown's card is valid and that the card should be counted
in support of the Union's majority status.
Anthony Lucci, a Respondent witness, testified that he
has been a Respondent employee for about 13 years; that
Arterburn had "been badgering me for several weeks to
sign [a union authorization card] and I kept telling him
no, and he kept telling me, 'Sign one, because we want to
talk to the guys and see what their benefits, are' and I
says, 'Well, okay, I'll help you out,' so he., gave me a
"Apparently this incident took place 2 or 3 days before June 26, the
date appearing on the card
"Respondent 's counsel then asked, "is that what he [Arterburn] said?"
and Heidnck replied, "Yes "
"Heidnck had the card in his possession 2 or 3 days before he returned
it to Arterburn signed Under the circumstances, it is clear that Heidnck
did not sign the card heedlessly
At the time of the hearing, Heidnck was working in "a white-collar job"
having been transferred to the office as a factory control employee Prior
thereto he worked in the thread department located in the factory portion
of the plant
"Brown testified that he read and signed the card on June 30.
card";" that the above referred to incident took place on
June 27; that Arterburn gave him the card as he was
returning from his "break" and Arterburn was going on
his "break"; that he signed the card at his machine and
placed it between a red rag and when he saw Arterburn
returning from his "break" he ran some 80 feet to
Arterburn's machine and placed the red rag (presumably
together with the card) on Arterburn's workbench and
then ran back to his own machine; that, although he filled
in all the information requested on the authorization card
prior to signing it, he did not read the card, that he could
not "really honestly say" that he saw, "YES, I WANT
THE IAM" on the card, because, "It was about a
12-minute period in there from the time I got the card to
the time I gave it back to Duane Arterburn; . . . I didn't
really even get time to read it, plus I was a little worried
about it myself"; and that prior to the time he signed the
card in question, Art Morgan told him, "They were trying
to get a re-organization committee going before the
[election] year was up."
I am, convinced, and find, that neither Arterburn nor
Morgan ever told Lucci that the purpose of the card was
to obtain an election. This finding is based mainly, but not
entirely, upon the fact that Lucci did not impress me as
being a forthright witness. In short, to me, Lucci's
testimony regarding the events surrounding the signing of
the authorization card does not ring true. Accordingly,
upon the entire record in the case, I find that the card of
Anthony Lucci is valid62 and that the card should be
counted in support of the Union's majority status.
John Dennis, a Respondent witness, testified that he
has been in Respondent's employ a little over a year; that
one day around the end of June or early in July,63 "I just
jumped off my fork[ lift] and went over and asked"
Morgan , who was working at his machine, I fort al union
authorization card; that Morgan gave him such a card, at
which time Morgan said, the card was for "a vote"; that,
although, when he had requested the card from Morgan,
he nevertheless inquired of Morgan the purpose of the
card; that he directed the above referred to inquiry to
Morgan, even though he had heard from other sources
that the Union's authorization cards were "for a vote";
that he took the card to his own work area, some 100 feet
from Morgan's, signed the card and then placed it on his
leadman's66 desk; that about 3 days later, his leadman
called his attention to the fact that the card was still on
the desk; and that he then took the card, which is dated
July 6, to Morgan's work area and gave Morgan the
signed card
Dennis further testified that he read the card, including
the words, "YES, I WANT THE IAM," and understood
the card.
Dennis appeared to me as being a person of more than
average intelligence. Under the circumstances, it is
inconceivable to me that Dennis signed said card relying
solely upon Morgan's purported assurances , as apparently
Respondent seeks to imply, that the card was for the
purpose of requesting a Board-conducted election.
"Respondent's counsel then asked, "And did he [Arterburn] say
anything about an election when he gave you the card9", and Lucci replied,
"Yeah, he told me That's why I wasn't going to sign one because I didn't
particularly want a union Well, he said , 'This just entitles you to hear
what they 've got to offer, and then we'll have a vote on it to see whether
you want it or not,' so I says, 'Well, all right, I'll let you guys see what
you want "'
"Lucci's card is dated June 27
"Dennis did not work from June 30 through July 4.
"Not a supervisor within the meaning of the Act
MORSE CHAIN COMPANY
Accordingly, and upon the record as a whole, I find that
(1) Dennis executed the card given him by Morgan for the
sole purpose of designating the Union his
collective-bargaining representative; (2) the card is valid,
and (3) the card should be counted in support of the
Union's majority status.
Dave Bryan, a Respondent witness, testified that he has
been in Respondent's employ for over 3 years; that last
summer Art Morgan gave him a union authorization card
during his lunch "break"; that on the particular occasion,
Morgan "just asked me if I wanted a card and handed it
to me"; that he "signed it [the card] right then" and then
returned it to Morgan "
Bryan further testified that he read and understood the
meaning of the card.
Upon the record as a whole, I find that Dave Bryan's
card is valid and that the card should be counted in
support of the Union's majority status.
Arthur Adamson, a Respondent witness, testified he
has been in Respondent's employ for upwards of 8 years;
that last summer, while he was on his lunch "break," Art
Morgan came over to where he and two fellow workers,
Dale Ager and Roger Wisehart, were and gave him a
union authorization card; that at that time, to quote
Adamson, "He [Morgan] told me he'd like me to sign it,
that it was to take a vote, and that's what I understood";
that he kept the card about 3 or 4 days before he signed
it;" and that he signed the card at his machine, took the
card to Morgan's work area, while en route to the tool
crib, and gave the signed card to Morgan.
Adamson testified on cross-examination by the General
Counsel, that he read, filled in the card, and understood
the card; that when Morgan handed him the card,
Morgan volunteered, to him, Ager, and Wisehart, "That
all it [the card] was for was to have the union come in to
take a vote and see how we stand."
Adamson further testified on cross-examination that he
had attended a union meeting about 2 or 3 weeks prior to
the time he signed the aforementioned card, at which
meeting a Mr. Wagner, a union representative, was the
main speaker; that Wagner told the approximately 20
Respondent employees present, he was "just trying to get
the union in, and that was all, see what kind of a contract
we could get."
Morgan, called by the General Counsel on rebuttal,
testified that when he handed Adamson the card in
question he told Adamson that it was "to be used to get
the union in, to bargain for us", that before Adamson
signed the card he and Adamson had several conversations
in which Adamson wanted to know "if the card was going
to be used for an election, and I told him no, we couldn't
have an election even if we wanted to until October"; and
that he never told Adamson the card was going to be used
for an election.
Upon the record as a whole, I find that (1) Morgan
never told Adamson that the purpose of the card was to
secure an election, (2) Adamson signed the card for the
sole purpose of designating the Union his
collective-bargaining representative, and (3) the card is
valid and (4) the card should be counted in support of the
Union's majority status "
"The card is dated June 29.
"Adamson's card is dated July 18
"Since the card is dated subsequent to the Union's original demand for
recognition the card will not be considered with respect to that particular
demand
587
Tony Ruiz, a Respondent witness, testified that he has
been a Respondent employee for about 6 years; that on a
particular day last summer Morgan asked him to sign a
union authorization card, adding, to quote Ruiz, "if I
signed it, it would be a vote."
During the course of his cross-examination by the
General Counsel, Ruiz testified that he read the card in
question, including the words, "YES, I WANT THE
IAM," completely filled out the card, then signed and
dated (June 30) it; that he had spoken to Morgan about
the card on several occasions over a 2 or 3-week period
immediately prior to signing it and also once or twice
during the week immediately preceding June 30; that at
the time he received and signed the card he and Morgan
were on their "break" and he just happended to walk past
Morgan's machine and Morgan said, to again quote Ruiz,
"If you sign the card, we could have a vote on it."
When asked by the General Counsel how the election
question came up when Morgan asked him to sign the
card, Ruiz replied, "I said, `What's it for?' and he says,
`After we sign it we might get the union in there and get a
vote on it."'
Morgan testified, as a General Counsel rebuttal
witness, that he had more than once asked Ruiz to sign an
authorization card; that he never told Ruiz that the card
was to be used to obtain an election; and that when the
question of an election did arise, "I told him [Ruiz] the
cards were to get the representation of the union and that
there would not be an election and couldn't be an election
until after October."
Upon the entire record in the case, I find that (1)
Morgan did not tell Ruiz that the purpose of the
authorization card was to obtain an election, (2) that Ruiz
signed said card for the sole purpose of designating the
Union as his collective-bargaining representative, (3)
Ruiz's card is valid, and (4) the card should be counted in
support of the Union's majority status.
Gerald Van Meter, a Respondent witness, testified that
he has been in Respondent's employ for approximately 2
years; that he signed a union authorization card last
summer; that Art Morgan gave him such a card after, "I
went up and asked him what the last union meeting was
about, and he said if I wanted to find out to just sign a
card", that Morgan then gave him an authorization card
which he read, completely filled out, and signed;" that,
"some ways" he wanted the Union and "some ways" he
did not want the Union, but mainly he "wanted to find
out what the Union was offering"; and that no one told
him the purpose of the authorization cards was to obtain
an election.
With respect to Van Meter's card, Morgan's testimony
as a rebuttal witness is as follows:
Q. You also testified about a card signed by Gerald
Van Meter?
A. Yes.
Q. Did you ever talk to him about the card?
A. Yes.
Q. One time or more than one time?
A. Several times.
Q. Did you ever talk about an election?
A Yes.
Q. What did you say to him about an election?
A. Well, on our breaks when we was talking about it
in the canteen room, he was all the time trying to tell
us guys that these cards were going to be used for an
election, and I was trying to convince him that they
"Van Meter' s card is dated July 8
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weren't going to be used for an election.
Q. Did you ever tell him if he wanted to find out
what the cards were for, he should sign one?
A No, I didn't.
Upon the entire record in the case, I find that Gerald
Van Meter's card is valid and that the card should be
counted in support of the Union's majority status.
Michael Martin, a Respondent witness, testified that he
has been a Respondent employee for about 2 years, that
last summer he signed a union authorization card; that he
received said card from Duane Arterburn who "said it
was only supposed to - for to have an election whether
or not the union came in"; and that he could not recall
whether he was in Arterburn's department or in his own
department when he received the card.
On cross-examination by the General Counsel, Martin
testified that he read the card Arterburn gave him, signed
it, and then returned it to Arterburn "
Martin then testified under cross-examination as
follows:
Q. Did you understand it?
A. I guess I didn't now.
Q. What do you mean, you guess you didn't now?
A. I thought it was just so we could have a vote; I
didn't want that to be my vote.
Q. Was there anything on the card that said it was
for a vote?
A. It has been so long since I read the card, I can't
exactly remember what it said.
Q. I will show you what is in evidence as General
Counsel No. 102 which you identified, the copies, as
being the card you signed. Look at that and tell me if
there is anything about an election on that card.
A. No
Q Well, what did he [Arterburn] say - how did the
conversation about an election come up?
A. Well, he just told me that it wasn't for a vote; it
was just so the union could try to come in so we could
take a vote.
Q Well, how - why did he tell you that? How did
that part of the conversation come up?
A I think I asked him whether or not - what the
card was for.
* * * * *
Q. Well, is this something about a vote something
you remember by later conversation or at the time you
got the card?
A. Maybe later conversation.
Q. Do you think it is possible he didn't say anything
about the card at the time you got it?
A. Maybe.
Q. You did read the card?
A. Yes.
Q. And then you filled it out and signed it?
A. Yes
Q Then you gave it back to him?
A Uh-huh
Upon the record as a whole, I find that ( 1) Martin
signed his card for the sole purpose of designating the
Union as his collective-bargaining representative , (2) the
card is valid , and (3 ) the card should be counted in
"The card is dated June 21, the day the Union held its first two
meetings
support of the Union's majority status.
John Johnson, a Respondent witness, testified that he
has been a Respondent employee since 1961; that last
summer, while at his machine, he asked Art Morgan for a
union authorization card; that thereupon Morgan gave
him one; that prior to that time he and Morgan had, "off
and on" spoken about such cards and from said
conversations he got "the impression that it [the card] was
for an election more than anything else"; that he
"couldn't honestly" say that Morgan ever said to him the
cards were for an election, and that he signed the card the
day he received it and then returned it to Morgan."
Johnson further testified that he read and understood
the meaning of the card.
Upon the entire record in the case, I find that John
Johnson's card is valid and that it should be counted in
support of the Union's majority status
Sal McDuffie, a Respondent witness, testified that he
has been a Respondent employee for about 30 months;
that on July 11, he read, understood, filled out, and then
signed a union authorization card; and that he signed said
card at home, which he had received from Art Morgan.
Upon the entire record in the case, I find that the card
of Sal McDuffie is valid and that the card should be
counted in support of the Union's majority status
Tony Fong, a Respondent witness, testified that he has
been in Respondent's employ a little over a year; that he
read the card, which Art Morgan gave him, including the
words, "YES, I WANT THE IAM," understood the
card, and signed it; and that Morgan "didn't tell me
anything" when Morgan handed him the card, apparently
because, as Fong testified, "We talked about it [the card]
prior and afterwards, but I did assume we'd have an
election, and if we had enough cards that the union would
come in."
Upon the entire record in the case, I find that the card
of Tony Fong is valid" and that the card should be
counted in support of the Union's majority status.
Respondent contended at the hearing and in its brief
argued, "The record indicates that 13 card signers" had
been told directly or by rumor that the signing of the card
would save them $40.00 of the Union's initiation fee. It
appeared from the testimony that the source of the rumor
that an employee would save $40.00 by signing a card
before the Union got in was employee Art Morgan, who
was the prime movant on behalf of the Union and who
was an authorized distributor of cards ....
I am convinced, and find, that the above quoted
contention is not borne out by the credited evidence and
hence the contention is without merit or substance.
Furthermore, as found above, for reasons other than the
above-quoted contention, I found that the card of Merle
Schippert should not be considered in support of the
Union's majority status, it is further found that the cards
of the 12 other persons are valid designations of the
Union's collective-bargaining status.
As stated in its brief, Respondent seriously objected at
the hearing "to the procedure which was followed by the
General Counsel in putting signed authorization cards into
evidence Respondent's Exhibit No. 20" indicates clearly
that the Counsel for the General Counsel had advance
"Johnson's card is dated June 21
"The card is dated July 6
"Namely, John Johnson, Jerry Cook, Carl Green, Ulysses Johnson,
Louis Jeanpierre , Anton Freidnch, Merle Schippert , Jerry Hinton, George
Dick, Anthony Lucci, Arthur Adamson, Tony Ruiz, and Gerald Van
Meter
"Letter, dated January 18, 1968 , from Respondent ' s counsel to the
Director of Region 27
MORSE CHAIN COMPANY 589
notice from the Respondent that all or most of those
persons who signed authorization cards were available for
personal testimony and were within ten to fifteen minutes
of the location at which the hearing in this case was held.
The Respondent also volunteered to cooperate in
scheduling said employees into the hearing room to
testify. It would seem appropriate under circumstances
where a witness is readily available to testify, and
particularly where the General Counsel intends to
substitute a signed card for a secret ballot vote, that the
person who actually signed the card be required to testify,
and that this should be a necessary element of the General
Counsel's case. While it may be argued that these
witnesses are as available to the Respondent as to the
General Counsel, it must be remembered that the burden
of proof rests with the General Counsel, and it must
further be remembered that the only basis upon which
second-hand evidence may be admitted is where those
persons who could testify personally as to an event are
unavailable for testimony. In retrospect the conduct of the
General Counsel in attempting to put cards into evidence
through second-party testimony raises the question as to
whether the General Counsel is hiding an element of the
card signer 's testimony which may not benefit his case.
Therefore, it is urged that the General Counsel should be
required, at least in this particular case, to put in first
hand evidence of card signing because of the general
policy involved."
Twenty-seven union authorization cards" were received
in evidence through the credited testimony of Bogaard
who testified that he (1) personally knew each of the
persons who signed said cards, (2) either observed the
cards being signed or received them from the persons who
signed them; and (3) personally initialed each of said cards
at the bottom thereof at the time it was given to him by
the card signer.
Meacham credibly testified that at the two
aforementioned June 21 meetings, 13 Respondent
employees" signed union authorization cards; that he
personally knew all said 13 employees except George
Dick; that the said 13 cards were signed in his presence;
and that he put his initials at the bottom of each signed
card at the time it was given to him at said meetings.
Twenty-five union authorization cards'" were received
in evidence through the credited testimony of Morgan who
testified that he (1) personally knew each of the persons
from whom he received said cards, (2) saw each card
either signed by the person whose name appears thereon
or it was given to him by the person whose name appears
thereon filled out and signed, and (3) upon receipt of said
card he placed "A. R. T." at the bottom of each card
upon its receipt from the signer.
"Those of Estell Campbell, Jim Dusch, John Fresquez, Leroy Gassman,
Gabriel Gonzales, Joseph Gonzales, Richard Graham, Jim Graver, Roy
Henssenflow, Jerry Hinton, Leroy Howard, Newlyn Jackson, Don Krieger,
John Kugi, Joe Logan, Richard McGrath, Joseph Martinez, Harris
Mennenga , Lee Miles, Clarence Mitchell, Kenneth Payton , Joseph Pfeifer,
Darrell Rustin, Guillermo Serna, Gary Smith, Peter Summerton, Sam
Tsuchiya.
In addition , at the hearing the cards of some of the above-named
persons were further identified by the signers thereof.
"Those employees who did not identify their own cards at the hearing
are: Ernest Carter, Robert Laing, Forrest Neal, and Nelson Begay.
"Those of Arthur Adamson, David Bryan, Bobby Bush, Richard
Calhoun, Lee Cyrus, John Dennis, Tony Fong, Ronald Godfrey, Ronald
Graham, Willard Henderson, John Johnson, Charles Kear, Fred
McDaniel, Sal McDuffie, Carl Moore, Robert Morris, Larry Muse,
Arterburn testified, and I find, that he personally knew
Robert Bowen, Colman Brown , Ronald Heidrick,
Anthony Lucci, Michael Martin, and Jim Motoyama; and
that each of said named persons gave him filled out,
signed union authorization cards."
Three union authorization cards" were received in
evidence through the credited evidence of Marvin
Gassman who testified that he (1) personally knew the
three persons who signed said cards, (2) received filled
out, signed authorization cards from Bahr and
Chenoweth," and (3) saw Jacobs date and sign his card.
Ben Garcia, a conceded handwriting expert, and a
General Counsel witness, credibly testified that the cards
of John Baier , Ray Jodon, Jr., Edward Mirci, Robert
Sims, and Elmer Ulibarri were signed by the person
whose name appears thereon."°
The genuineness of the signatures appearing on the 79
authorization cards received in evidence through the
testimony of Bogaard, Meacham, Morgan, Arterburn,
Gassman, and Garcia was not questioned nor challenged,
except the five cards introduced through Ben Garcia. As
to those five cards, I find, in accordance with Garcia's
credible testimony, were filled out, dated, and signed, by
the persons whose names appear thereon.
Recently the contention advanced by Respondent and
as quoted above was presented to the Tenth Circuit in a
case" very similar to the instant one. In rejecting said
contention, the Court stated at pages 16 and 17 of slip
opinion:
Nine union authorization cards were identified at the
hearing by the employees who actually signed the cards,
and were admitted in evidence. Five more cards were
identified by some witness who testified that he knew
the man whose name appeared on the card and that he
saw the man fill out the card and write his name on it.
Counsel for the respondent contends that the admission
of these 5 cards in evidence constituted a flagrant
violation of the "basic principles" of the hearsay rule.
The union authorization cards speak clearly for
themselves. They read: "I authorize Local 775 of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America to represent
me as my collective bargaining agent." Below this
unambiguous statement on- the top of the card are
spaces to be filled out with the name of employer, kind
of work performed, address, telephone number, date
and signature. The situation then is that a witness on
the stand gave testimony that he saw a known fellow
employee give the union authority to represent him for
collective bargaining purposes. This is not "written
hearsay," as counsel for the respondent calls it, but
direct evidence of the creation of an agency relationship
between a fellow employee and the Union. It is as
though a witness testified that he heard P employ A as
chauffeur at a stated renumeration and under stated
conditions and heard A accept the employment. The
authentication of the signatures on the cards is, of
Walter Rapue, Tony Ruiz, Garry Shaner, Bernhard Strand, Gerald Van
Meter, William Wedig, Roger Wisehart, and Mike Wright.
In addition , at the hearing the cards of some of the above-named
persons were further identified by the signers thereof.
"In addition , at the hearing Brown, Heidrick , Lucci, and Martin
identified their own cards.
"Those of Harry Bahr, Irven Chenoweth, Gerald Jacobs.
"In addition, Chenoweth identified his card at the hearing.
'"The General Counsel stated on the record that the above-named five
persons were not available as witnesses.
"N.L.R.B. v. Merrill Axle and Wheel Service. 388 F.2d 514 (C.A. 10).
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course, by direct evidence. The witness saw the fellow
employee write his name. The 5 cards were properly
admitted in evidence. NLRB v. Economy Food Center,
Inc , 333 F.2d 468, 471 (C.A 7, 1964); Colson Corp. v.
NLRB, 347 F 2d 128, 134 (C.A. 8, 1965).
Under the circumstances, I find no merit to
Respondent's contention that the cards received in
evidence through persons not the card signers should not
be considered in support of the Union's majority status.
Certain testimony was elicited by Respondent's counsel
from Meacham and from Respondent's employees with
respect to the Union serving free beer and whiskey to the
employees attending the two aforementioned June 21
meetings at which authorization cards were solicited
and/or were signed. This testimony, I assume, was
introduced for the purpose of proving that the Union used
undue influence to obtain signatures to authorization cards
by those who signed said cards at said June 21 meetings. I
further assume that Respondent also relies upon this
evidence in support of its contention that the Union never
had an uncoerced majority at any time material. Since no
mention was made of this evidence in Respondent's brief I
gather that the aforesaid apparent contention has been
abandoned. In any event, the credited evidence discloses
(1) no one testified he received more than one free beer or
one free whiskey at any one of said two meetings except
George Dick who testified he was given and he drank one
or more free beers, perhaps as many as six, seven, or eight
free beers and Manuel Corrosco who had two free double
scotches; (2) Corrosco did not sign a union authorization
card at the June 21 meeting he attended or at any other
time, and (3) the cost of the free refreshments served to
the 20 or so persons attending said two meetings
amounted to $9.15. Under the circumstances, I find that
by serving free liquid refreshments at said June 21
meetings, the Union did not influence any employee in
signing an authorization card nor was it the Union's
purpose in serving the refreshments to unduly or
unlawfully influence the employees to sign authorization
cards or to otherwise influence them in their choice of a
bargaining representative.
On July 17, 1967, the date of the Union's letter
demanding recognition, there were 216 persons in the
appropriate unit, two of whom were on military leave.
On behalf of the General Counsel there were offered
and received in evidence 113 signed cards,"= all bearing
dates of July 17, 1967, or prior thereto, expressly
authorizing the Union to represent the signers thereof for
collective bargaining. The genuineness of the signatures
appearing on said cards, except the five cards received in
evidence through the credible testimony of Ben Garcia,
the handwriting expert, was not questioned nor challenged.
I have compared the names appearing on Respondent's
July 17, 1967 payroll and find that as of July 17, 1967,
113 employees in the appropriate unit had selected and
designated the Union as their collective-bargaining
representative." I further find that as of July 17, 1967, the
Union was, and at all times thereafter has been, the duly
selected and designated representative of Respondent's
employees in the bargaining unit heretofore found
appropriate. Accordingly, pursuant to Section 9(a) of the
"Excluding the cards of Darrell Anderson, Merle Schippert, Danny
Eastin , Richard Calhoun, and Arthur Adamson Schippert' s card is not
being considered as a valid designation since he requested its return prior
to the Union' s recognition demand and the cards of the four other persons
are not being considered with respect to the Union's July 17 recognition
demand because said cards were signed after the date of said demand
Act, the Union was, and now is, the exclusive
representative of all the employees in said unit for the
purposes of collective bargaining with respect to
grievances, labor disputes, rates of pay, wages, hours of
employment, and other conditions of employment.
The consolidated amended complaint, as amended at
the hearing, alleged that the Union requested and
Respondent refused to recognize and bargain with the
Union as the collective-bargaining representative of the
employees in a certain stated appropriate unit on or about
July 17, and on or about July 31, 1967.
The number of unit employees had changed between
July 17 and July 31 in that six persons had left
Respondent's employ during said period and two persons
had been hired, so that the total number of employees,
including the two who were on military, were reduced to
212.
On July 31, the Union's majonty had also changed in
that the Union had obtained 8 valid additional
authorization cards" between July 17 and July 31, giving
the Union a total of 121 cards on July 31.
Between July 17 and July 31, four of the Union's 121
card signers had left Respondent' employ."s Thus, as of
July 31, the credited evidence establishes that 117 persons
in the appropriate unit had signed cards, all bearing dates
prior to July 31, 1967, expressly authorizing the Union to
represent the signers thereof for collective bargaining.
As found above, the Union, about mid-June 1967,
commenced an organizational drive among Respondent's
employees.
The Union held the first two of a series of
organizational meetings at a bar-restaurant near
Respondent's plant on June 21. The first meeting was for
the night-shift employees which was followed almost
immediately by a meeting attended by the men working
on the day shift. Of the 20 employees attending these two
meetings, 13 signed union authorization cards.
Besides holding meetings of employees, the Union,
together with the support of some Respondent employees,
openly solicited membership in and outside the plant,
before, during, and after working hours.
The fact that the employees ' organizational activities
came to Respondent ' s attention immediately after they
had commenced cannot be successfully rebutted for the
credited evidence clearly establishes that, as early as June
21, Respondent began a counter-campaign to disorganize,
discourage , and destroy the Union' s attempt to organize
the employees and took all possible means , lawful and
unlawful, to wean its employees away from the Union. In
short, the record indicates that Respondent proceeded
upon the premise that employees' union activities, like
malignancy, can be stamped out most easily in its
incipient stage. This finding is supported, among other
credible evidence, by the findings and conclusions set forth
immediately below.
James Ducey, who voluntarily left Respondent's employ
on July 18, 1967, testified that he attended the first of the
two aforementioned union June 21 meetings; that he
reported to work that evening, June 21, wearing a union
button, and that shortly thereafter his foreman, Kenny
"These 113 authorization cards were in the possession of the Union on
July 17
"The cards of Arthur Adamson (dated July 18 ), Darrell Anderson (dated
July 21), Richard Calhoun (dated July 18 ), John Kindsfather (dated July
23), Danny McElhaney (dated July 21), Phil Martinez (dated July 20), and
Carl Moore (dated July 18)
"Namely, Pat Baier , Newlyn Jackson, Danny McElhaney , and Kenneth
Payton
MORSE CHAIN COMPANY
Houston," came to his work area and engaged him in a
conversation.
Regarding the conversation, referred to immediately
above, which lasted some 45 or 60 minutes, Ducey
testified that Houston began it by asking if he had
attended a union meeting that day and how many other
Respondent's employees had attended, that after
admitting he had been to the union meeting, Houston
inquired why he, in particular, wanted the plant unionized;
that he replied that he believed the Union could secure
higher wages, more benefits, and better working
conditions for the employees; that Houston then stated
that the Union was not only composed of a bunch of
crooks who would steal its members' money, but it could
not do anything worth while for Respondent's employees;
that Houston also remarked that in the past, during slack
periods, Respondent would have the employees wash the
plant windows rather than lay off employees, but if the
Union was successful in unionizing the plant, Respondent
would lay off employees during slack periods, and that
Houston warned him that if he "pushed the Union,"
things would be "pretty rough" for him.
Ducey further testified that at the end of his shift that
night, about 2 a.m , June 22, Jack Bolte, Respondent's
night shift superintendent and admittedly a supervisor
within the meaning of the Act, asked him, during an
hour-long conversation which Bolte initiated, why he
wanted a union in the plant since there was no necessity
for one, especially since unions were composed of crooks
who appealed mainly to the masses; that Bolte also said
that if the Union organized the plant, Respondent would
no longer "stretch" the work during slack periods in order
to keep the men working but instead it would lay off
employees not absolutely needed; and that toward the end
of the conversation Bolte told him that if he kept his
"nose clean" and worked hard he would one day be made
a foreman
Houston not only denied that he made the statements
attributed to him by Ducey but also denied that he even
talked to Ducey on June 21
Bolte, although admitting he had a conversation with
Ducey at the conclusion of the June 21-22 night shift, but
denied he initiated the conversation, claiming that Ducey
initiated it. Bolte further denied that he told Ducey that if
the Union organized the plant, Respondent would lay off
employees during slack periods rather than, as in the past,
"stretch out" the work. Bolte, however, admitted that he
and Ducey did discuss working conditions in the plant, as
well as wages and sick leave.
In the light of my observation of the conduct and
deportment of Ducey, Houston, and Bolte while each was
on the witness stand, and after a very careful scrutiny of
the entire record , I find that Ducey's versions of what he
and Houston said on the evening of June 21 and what he
and Bolte said early on June 22, as summarized above, to
be substantially in accord with the facts. This finding is
based mainly, but not entirely, on the fact that Ducey
impressed me as being one who is careful with the truth
and meticulous in not enlarging his testimony beyond his
actual memory of what was said during the two
conversations referred to above. On the other hand,
neither Houston nor Bolte so impressed me.
Orval Sackrider testified that he signed a union
authorization card on June 26 and a few days later he
began to openly wear a union button at work; and that
around July 1, while he was alone working at his machine,
"Admittedly a supervisor within the meaning of the Act
591
Bolte came along and told him that the union button was
interfering with his work, adding that all union talk in the
gear room must stop immediately.
Paul Schmidt testified that he signed a union
authorization card on June 22, and a few days later
openly wore a union button at work, that around July 1,
Bolte came to him while he was working in the gear room
and said that the union button was interfering with his
production; and that later that same evening, while he was
working at his machine and two or three other employees
were nearby, Bolte approached them and told them to
stop grouping around
Richard Roberts testified that he signed a union
authorization card on June 22, and several days later
began wearing a union button at work; that about 2 weeks
thereafter Bolte came into the gear room, called him, and
two other gear room employees, Joe Martinez and Robert
Bishop, together and stated that since they have been
wearing union buttons, gear room production has suffered
and if the wearing of such buttons caused poor production
he would not tolerate it
Joe Martinez testified that he signed a union
authorization on June 22, and about a week later began
wearing a union button at work; and that around
mid-July, Bolte came into the gear room and, despite the
fact they were actually working at their machines, Bolte
called him, Roberts, and Bishop together and told them
the union buttons were interfering with production but,
nevertheless, the wearing of said buttons was their
business, adding that he would not permit them to "sell"
the Union on company time
Bolte testified that he never spoke to Sackrider about
the Union or about union buttons when the two of them
were alone; that he did not call Bishop, Roberts, Schmidt,
and Martinez together, that on the occasion in question he
observed these last named four employees away from their
machines (which were running) joking, talking, and
pointing at the union buttons they were wearing; that he
approached the group and told them that if they wanted
to wear union buttons it was strictly up to them, but that
the buttons and union talk was taking them away from
their machines and hence interfering with their work; and
that he ordered them back to their respective machines.
Bolte admitted, although he admonished the four
named men for talking Union during working hours, he
did not hear any portion of their conversation.
At the time of the above referred to incidents, Schmidt,
Roberts, Sackrider, Roberts, and Bishop worked in the
gear room; Martinez worked nearby
Bishop and Roberts were trainees and, as the record
establishes, they had to rely upon Schmidt and Sackrider
for help in setting up their machines and for operational
assistance; and that Schmidt and Sackrider operated
machines side by side.
Upon the record as a whole, I find that the versions of
Sackrider, Schmidt, Roberts, Bishop, and Martinez with
respect to the incidents described immediately above to be
substantially in accord with the facts. I find that Bolte
spoke to Sackrider and that Bolte spoke to the group
consisting of Schmidt, Roberts, Bishop, and Martinez
prior to July 17, the date of the Union's letter demanding
recognition.
Art Morgan, one of the most active union adherents, I
find, testified, that George Carter, his foreman and
admittedly a supervisor within the meaning of the Act,
asked him on or about June 20 or 21 whether he intended
to attend the union June 21 meeting; that Carter, from
time to time, asked him about various union meetings,
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what transpired at said meetings, and the number of
Respondent employees attending especially with respect to
the meetings of June 21, July 5, July 12, and July 22; that
when Carter requested permission to attend the July 22
meeting, he telephoned Meacham who said that Carter
would not be permitted to attend.
Morgan further testified, and I find, that around July 1,
Carter asked him why he was "pushing" so hard; that
during a particular conversation early in July, Carter
stated that if he would hold off the union "deal" until his
next merit raise conference - then set for the following
October and to be presided over by Carter - maybe he
would get a 20-cent per hour raise.87
Richard Roberts testified that at the conclusion of his
July 14 merit rating interview, which was conducted in the
shop office by his foreman, Ronald Wilson, admittedly a
supervisor within the meaning of the Act, Wilson asked
him what his views were with respect to the Union; and
that when he replied he did not have any, Wilson
remarked that he (Wilson) did not see any need for a
labor organization in the plant; and that Wilson
recommended, and he received, a 10-cent per hour wage
increase in July.
Wilson testified that during the aforesaid interview he
asked Roberts if he had any questions regarding the
company's policy toward the Union; that when Roberts
replied that he had none, he told Roberts it was the
company's "rough policy" or "feeling" that the wages and
benefits it was paying and giving were competitive and
that the employees did not need a union to represent
them.88
Upon the record as a whole, coupled with the fact that
Roberts impressed the undersigned as a forthright witness,
and that Wilson did not give that impression, I find that
Roberts' version of what transpired at said July 14
interview to be substantially in accord with the facts.
Under date of July 17, the Union wrote Respondent
that it represented a majority of Respondent's employees
in a certain stated unit,"' requested that Respondent
recognize it as the exclusive collective-bargaining
representative for all the employees in said unit, and that
a date be set to commence bargaining. In said letter the
Union offered to prove its majority status by submitting
to an impartial third party the cards then in its possession
which Respondent's employees had signed expressly
authorizing the Union to represent the signers thereof for
collective bargaining.
On July 18, the above referred to letter was received by
Respondent and was immediately referred to Forrest
Votaw, Respondent's plant manager who then conferred
with Respondent's president, whose headquarters are
located in New York and who happened to be visiting the
Denver plant when the Union's letter arrived, and also
with Respondent's attorney.90
As the result of said conferences, Votaw, under date of
July 20, wrote the Union as follows.
"Morgan was rated by Carter in October During the interview or
conference , Carter stated that Morgan ' s work was good but Morgan's
attitude toward Respondent was bad , adding that Morgan would do
himself good if he looked for a job elsewhere Carter recommended, and
Morgan received , a 5-cent per hour wage increase in October
"Wilson testified that he learned of this company policy from Bolte,
Plant Superintendent Wilmer Waugman , and Bill Tronick , Respondent's
industrial relations manager
"The appropriateness of the claimed unit is not disputed, it being the
same unit the parties agreed to in the 1966 proceedings
"An attorney other than the one appearing at the hearing on
Respondent 's behalf
This is in reply to your letter of July 17, 1967, alleging
that a majority of certain of our employees has
authorized your organization to represent them.
As you know an election by secret ballot held last
October upon your petition showed overwhelmingly that
our employees do not favor union representation An
earlier election had similar results. All the information
we have indicates to us that our employees' feeling is
unchanged
The best method of ascertaining the true desires of our
employees is through the democratic method of an
election by secret ballot again supervised by the
National Labor Relations Board. We stand ready to
cooperate in the holding of such an election as quickly
as possible and are sure that you will also.
In the meantime we do not think that it would be fair
to our employees or to our company to undertake
negotiations with your organization We suggest an
early meeting with representatives of the National
Labor Relations Board.
As more fully set forth below, the record as a whole
provides no basis to support Respondent's asserted
reasons, as set forth in the letter quoted immediately
above, for doubting the Union's majority In addition,
consideration should be given to (1) at no time during the
1966 campaign, or for that matter at no time prior to July
17, 1967, did the Union claim to represent a majority of
Respondent's employees or did it prior to July 17, 1967,
demand recognition as the bargaining representative
without being certified by the Board as such
representative, (2) according to the Tally of Ballots issued
in the election proceedings of October 1966 (27-RC-3080)
there were approximately 176 eligible voters, 115 of whom
cast ballots against, 55 of whom cast ballots for the
Union, and one ballot was challenged, (3) as of July 17,
1967, the bargaining unit was composed of 214 employees
plus two on military leave, (4) on July 17, 1967, the
Union had in its possession 113 valid authorization cards,
all of which were signed between late June and July 17,
1967, and (5) Votaw's testimony to the effect that as of
July 20, the date of his letter rejecting the Union's request
for recognition, Respondent had no reasons for doubting
the Union's majority claim other than those set forth in
his rejection letter plus the fact that at the end of the July
20 shift Union representatives were at the plant gates
passing out literature requesting those employees who had
not already signed authorization cards to sign the
authorization cards which were attached to said literature. "
On the same day, July 20, Respondent rejected the
Union's recognition request and its request for an
appointment to commence bargaining, Respondent filed a
petition with the Director for Region 27 seeking to have
the question of representation resolved through the
Board's election procedure (Case 27-RM-243).
On July 21, the Union received a letter, dated July 20,
from the aforesaid Regional Director enclosing a copy of
the aforementioned representation petition.
By letter, dated July 21, the Union informed said
Regional Director93 of its prior demand upon Respondent
for recognition, of its request for a bargaining conference,
and its offer to prove its majority representative status
through an impartial third party. The letter concluded by
"Admittedly, Votaw's July 20 letter was written and the representation
petition mentioned immediately below was filed, prior to the distribution
by the Union of the aforementioned literature
"A copy of this letter was forwarded to Respondent on July 21
MORSE CHAIN COMPANY
recalling that a Board-conducted election had been held
on October 5, 1966, and hence Respondent's
aforementioned petition was untimely.
On July 28, the Union distributed to the employees,
including Votaw, at the plant gates a circular, on its
letterhead, addressed, "An Open Letter to Mr. Votaw,"
stating among other things, that (1) the Union had been
authorized by 129 of Respondent's employees to represent
them for collective bargaining, (2) the signed authorization
cards had been given to the N.L R B. for verification, (3)
no election is needed, (4) the Union is ready to negotiate a
bargaining contract and a proposed contract, which
Respondent's employees had approved, would be
submitted to Respondent on July 31, (5) Respondent was
stalling by seeking a Board election, which Respondent
knows cannot be held for at least 2-1/2 months and (6)
the Union again offers to prove its majority status.
Under date of July 31, Respondent sent each employee
a letter, over Votaw' s signature , disclaiming any attempt
by Respondent of "stalling" as charged in the Union's
July 28 letter, and maintaining , among other things, that
the Union's representative status should be resolved by an
election.
On July 31, the Union, through Meacham and another
union official, delivered to Votaw a proposed contract and
said officials requested a meeting to discuss the proposed
contract.
Under the date of August 2, Respondent, over Votaw's
signature , answered the Union's "open letter" of July 28,
by addressing a letter to Meacham in which Respondent
again stated that (1) it has a good-faith doubt that the
Union represented the majority of the bargaining unit
employees, (2) an election, if held, would bear out its
position that the employees do not want the Union to
represent them, (3) it is not "stalling ," and (4) until there
is proof through an election that the Union, in fact,
represents the employees involved, it will not recognize
nor bargain collectively with the Union. The letter then
also stated:
Having again made our position clear we are returning
herewith the contract proposal which you delivered to
me on Monday. We have not considered it and will not
do so unless and until you are authorized to represent
our employees in the manner indicated.93
Under date of August 3, the aforementioned Regional
Director notified Respondent and the Union that he was
dismissing Respondent's representation petition because it
was not timely filed, in that the Board had conducted an
election among the employees involved on October 5,
1966.
On August 4, Respondent sent a letter to its employees
reading , in part, as follows:
It now appears that the I A.M. (union) is presently
attempting , by a clever scheme, to deprive you out of a
chance to vote on whether or not you want them as
your representatives.
In the aforesaid August 4 letter, Respondent reviewed
some of the events which had occurred since the Union's
July 17 demand for recognition, but Respondent omitted
therein certain vital events which had taken place. For
example, Respondent attached to the aforesaid letter a
copy of the Regional Director's July 20 letter to the
Union enclosing a copy of Respondent's representation
"Admittedly , Respondent acquired no new evidence between July 18 and
July 31, to support its July 20 claim that it doubted the Union's majonty
representative status
593
petition of July 20. Respondent, however, neglected to
attach a copy of the Union's July 21 letter to the Regional
Director calling attention to the untimeliness of the
petition. Instead, Respondent's letter advised the
employees that it always had been willing to waive its
right to refuse to have an election before October but that
the Union continues to stand on a technicality and refused
to so waive.
On August 8, Respondent filed with the Board a second
representation petition which was timely under the Act
This petition was withdrawn when the Regional Director
advised Respondent that the petition could not be
processed due to the fact that the Union had filed a
charge of unfair labor practices against Respondent.
In a letter to its employees, dated August 23,
Respondent stated, in part, as follows
On August 8, 1967, when we became eligible to file for
an election for you we did so for the second time. The
government has informed us that as long as the union
keeps making unfair labor practice charges there cannot
be an election. Therefore since our request for your
election has been stalled indefinitely by union charges,
we will withdraw our last request and wait to see what
the future brings.
During July and August, the Union issued certain
handbills urging the employees to support its
organizational drive
On November 3, Respondent advised the employees, in
writing, as follows:
Due to generally unfavorable business conditions, we
are forced at this time to reduce hours to 40 hours per
week.
This will be a permanent change, and as previously
done in 1963 when we reduced hours, a blanket wage
increase will be given.
Effective Monday, November 6, 1967, all hourly shop
employees will receive a 5-1/2% pay increase.
The new shop hours beginning Monday, November 6,
will be 7.00 AM to 3.30 PM for the day shift; and 3:30
PM to midnight for the night shift.
On November 8, Respondent advised the employees, in
writing, as follows:
In Order To Better Serve Our Customers And Maintain
Effeciency In Handling And Shipping Orders We Find
It Necessary to Change Our Hours.
Effective Wednesday November 8, 1967 The ENTIRE
Plant Will Work The Same Hours As Follows:
Days 7:30 AM to 4:00 PM
Nights 4:00 PM to 12:30 AM
Respondent admits that the November 3 and the
November 8 changes in the employees' hours and pay
were made and put into effect without first consulting
with, or advising, the Union.
The right of employees under Section 7 of the Act "to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing .
[and] to refrain from any or all such activities" is
effectively implemented by Section 8(a) (1) and (5). These
provisions forbid an employer to "interfere with, restrain,
or coerce employees in the rights guaranteed in Section
7," and likewise prohibit an employer from refusing to
recognize or bargain collectively with the majonty
representative of his employees in the appropriate unit.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employer's economic hold over his employees, which
inheres in their relationship, is thereby neutralized in
matters of organization and representation, which are
particularly the concern of the employees. Interdiction
against employer intrusion in such matters is essential if
employees are to be free from the coercive influence of
their employer, for employees are, as the courts have
repeatedly and uniformly held, not insensitive to the
advantages in their employment that they consider are
likely to flow from their employer, nor to the
disadvantages which may attend their choice of
representative opposed by their employer. And for the
same reason, employees cannot be expected to derive the
full benefit from their protected right of self-organization
and to the selection of a representative of their own
choosing if they believe, from circumstances which their
employer creates, or for which he was fairly responsible,
that their representative, however chosen, is subject to the
employer's approval or disapproval.
Respondent, having concededly refused to bargain with
the Union, argues principally that it was under no
obligation to recognize or bargain with the Union, whose
demand for recognition was based on signed authorization
cards, within a year following a valid Board-conducted
election, due to the provisions in Section 9(c)(3). The
election, which the Union lost, had been held on October
5, 1966, and the Union's demand for recognition came
less than a, year later.9`
Section 8(a)(5) of the Act requires an employer "to
bargain collectively with the representatives of his
employees, subject to the provision of Section 9(a)."
Section 9(a) provides that "Representatives designated or
selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all
employees in such unit for the purposes of collective
bargaining. . Although Section 9(c)(1) provides
machinery by which the question of representative status
may be determined in a Board-conducted election, it has
long been established that an election is not the onl
means by which representative status may be determined. 4
Thus, contrary to Respondent's contention as expressed at
the hearing and in its brief, it is settled law that these
provisions of the Act impose upon an employer the duty
to recognize and confer with the representative of a
majority of his employees in an appropriate bargaining
unit upon a clear demand from such representative.96
The language and legislative history97 of Section 9(c)
clearly indicates that Congress was aware of alternative
methods of determining union representative status, but
that it was concerned only with limiting the frequency of
elections.when it passed Section 9(c)(3). It is significant to
note that while the words of Section 9(a) - "designated
or selected" - authorized the use of such alternative
methods, Section 9(c)(3) refers only to elections. Further,
there is nothing in the Act or in the legislative history of
Section 9(c)(3) to suggest that Congress intended to
permit an employer to disregard the principle of collective
bargaining , or to receive immunity from his obligation
under Section 8(a)(5), merely because an election was held
"Section 9(c)(3) provides : "No election shall be directed in any
bargaining unit or any subdivision within which, in the preceding
twelve-month period, a valid election shall have been held."
"Ray Brooks v. N.L.R.B., 348 U.S. 96; United Mine Workers v.
Arkansas Oak Flooring Co.. 351 U.S. 62.
"Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678; N. L.R.B. v.
Burton-Dixie Corp ., 210 F.2d 199 (C.A. 10); N.L.R.B. v. Katz, 379 U.S.
736.
among his employees within a year preceding a demand
for recognition by a labor organization representing a
majority of his employees. The legislative history of
Section 9(c)(3) shows that Congress wanted to avoid the
plant disruption expense to the Board of too frequent
elections but there is no evidence of congressional intent
to incur the greater disruption resulting from an employer
being permitted to ignore the duty of collective bargaining
altogether. In short, there is no support in law for
Respondent's contention that Section 9(c)(3) precluded
Respondent's employees from validly selecting the Union
as their collective-bargaining representative and that
Respondent was at liberty to deny recognition to the
Union because it was less than a year since certification of
the results of the October 1966 election. Under the
circumstances, I reject Respondent's aforementioned
contention and find them to be without substance or
merit."
Uncontroverted credited evidence establishes that on
July 17, 1967, the day the Union informed Respondent by
letter that a majority of Respondent's employees had
selected the Union to represent them for collective
bargaining and requested Respondent to confer with it,
the Union, in fact, had been selected and designated by
the majority of the employees in the appropriate unit as
their collective-bargaining representative. That being so,
Respona,•nt was under a statutory duty to recognize and
bargain with the Union as such representative. Instead of
fulfilling its statutory duty, Respondent continued its
spirited campaign to undermine the Union's majority
status. This campaign, as epitomized above, included
threats of economic reprisals for union activities,
unilaterally granting wages, unilaterally changing the
employees' hours of work to dissuade the employees from
seeking union representation, coupled with numerous
other acts of interference, designed to interfere with the
employees' exercise of their rights under Section 7 of the
Act. Nor did Respondent challenge the Union's majority
when the bargaining request was made.
The record as a whole clearly establishes, and I find,
that Respondent never manifested a doubt of the Union's
majority status. Respondent's rejection of the Union's
demand for recognition was based solely on Respondent's
contention that it was under no obligation to recognize the
Union under the circumstances here presented; that is to
say, because the demand was made and received within
the 12-month period of the certification of the result of
the October 1966 election. This erroneous view of the law
is not available as a defense to a refusal to bargain.99
This is not a case which requires a determination
whether Respondent entertained a good-faith doubt of the
Union's majority status. Respondent's contention that the
employees, or at least a large number of them had signed
authorization cards relying on the assurances of the
solicitors that the cards were to be used to secure an
election finds no support in the record. The contention
now tendered by Respondent suffers from the infirmity of
being a legal afterthought since the record is barren of any
"Ray Brooks v. N.L.R.B., 348 U.S. at 100, n. 8.
"Conren, Inc., 156 NLRB, affd. sub nom Conren, Inc., etc. v. N.L.R.B.,
368 F.2d 173 (C.A. 7) cert. denied 386 U.S. 974; Rocky Mountain
Phosphates. Inc., 138 NLRB 292, 295; Cincinnati Gasket, Packing &
Mfg., Inc.. 163 NLRB No. 104, n. 4.
"Respondent's contention that it doubted the Union's majority status
when it refused the Union's request for recognition because of the Union's
July 20 solicitation of additional authorization cards is without merit or
substance . The mere solicitation of additional cards did not make
immediate suspect the Union's claimed majority status on July 17.
MORSE CHAIN COMPANY
evidence that Respondent knew at the time it rejected the
Union's request for recognition, that any authorization
card was signed for any reason save for the clear and
unambiguous purpose set forth on said card.
Upon the entire record in the case, which clearly
establishes that at no time did Respondent attempt to
fulfill its statutory duty to bargain collectively with the
chosen representative of the majority of the employees in
the unit heretofore found appropriate, I find that on July
20, 1967,100 and at all times thereafter, Respondent failed
and refused to bargain collectively with the Union as the
duly designated and selected representative of the
employees in the appropriate unit, in violation of Section
8(a)(5) and (1) of the Act, thereby interfering with,
restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 thereof.
I also find that Respondent further violated Section 8
(a)(5) and (1) of the Act by, on November 6, 1967, and on
November 8, 1967, without notice to, or consultation with,
the Union it changed its employees' pay and hours of
work.
I further find that Respondent interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act by: (1) Huston's
June 21 remarks to James Ducey, (2) Bolte's June 21-22
remarks to James Ducey, (3) Bolte's early July remarks to
Sackrider, (4) Bolte's late June or early July remarks to
Paul Schmidt, (5) Bolte's early July remarks to Roberts,
Schmidt, Bishop, and Joe Martinez, (6) Carter's early
July remarks to Art Morgan, and (7) Wilson's July 14
remarks to Roberts.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the business
operations of Respondent as described in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and, such
of them as have been found to constitute unfair labor
practices, tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (5) of the
Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent on July 20, 1967, and at
all times thereafter, has refused to bargain collectively
with the Union as the duly designated representative of
the employees in an appropriate unit, I will recommend
that Respondent, upon request, bargain collectively with
595
the Union as the exclusive representative of said
employees, and if an agreement is reached, embody such
understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce or in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All persons employed by Respondent at its 4650
Steele Street, Denver, Colorado, plant, excluding office
clerical employees, salesmen, guards, professional
employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. On July 17, 1967, and at all times since, the Union
has been, and now is, the exclusive representative of
Respondent's employees in the aforesaid unit, for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on and after July 20, 1967, to bargain
collectively with the Union as the exclusive representative
of the employees in the aforesaid unit, Respondent has
engaged in, and is engaging in, an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act.
6. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, as found in the foregoing findings of
fact, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. By unlawfully questioning its employees about their
union sympathies and the union sympathies of their
coworkers , Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. By promises of benefits if the employees would
repudiate their support for the Union and threats of loss
of benefits if they remained or became members of the
Union , Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
'"'The date of Respondent's letter rejecting the Union's request for
recognition