Pace, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1967

167 N.L.R.B. 1089 (N.L.R.B. 1967)

PACE, INC. 1089
Pace, Inc. and United Steelworkers of America,
AFL-CIO. Cases 8-CA-4266, 8-CA-4330, and
8-RC-6375
October 27, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On April 26, 1967, Trial Examiner Herzel H. E.
Plaine issued his Decision in the above-entitled
consolidated proceedings finding that Respondent
had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also recommended that the election held
pursuant to the petition in Case 8-RC-6375 be set
aside. Thereafter, exceptions to the Trial Ex-
aminer's Decision and supporting briefs were filed
by the Respondent and General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions,' and recommen-
dations of the Trial Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Pace, Inc., Mansfield,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
1. In paragraph 1(a) substitute the words, "ex-
cluding technicians in the engineering department"
for the words "excluding employees in the en-
gineering department."
2. Add the following as the final paragraph of the
Trial Examiner's Recommended Order:
"IT IS HEREBY ORDERED that the election con-
ducted in Case 8-RC-6375 be set aside, that the
petition therein be dismissed, and that all
proceedings held pursuant thereto be vacated."
3. In the first paragraph of Appendix B attached
to the Trial Examiner's Decision, substitute the
words "excluding technicians in the engineering de-
partment" for the words "excluding employees in
the engineering department."
4. The address and telephone number for Region
8, appearing at the bottom of the Notice attached to
the Trial Examiner's Decision, is amended to read:
Federal Office Building, Room 1695, 1240 East 9th
Street, Cleveland, Ohio 44199, Telephone
216-522-3738.
Although agreeing with the Trial Examiner that employees Petrovic
and Wharton lack a sufficient community of interest with the other em-
ployees in the bargaining unit found appropriate, we note that even if they
were included in the unit, the Union possessed authorization cards from
a majority of employees in the unit as of the demand date
2 In his Conclusions of Law, the Trial Examiner's inadvertent error in
the unit description should be corrected so as to read "excluding techni-
cians in the engineering department," instead of "excluding employees in
the engineering department "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERZEL H. E. PLAINE, Trial Examiner: This is a con-
solidated proceeding involving two complaints of unfair
labor practices against the Respondent, and unresolved
objections in a representation case to the conduct of the
Respondent allegedly affecting the election.
Complaint CA-4266, issued July 25, 1966, on a charge
filed June 17, 1966, by the Union (the Charging Party),
alleges that in June 1966 Respondent discharged four em-
ployees because of their support for the Union, posted
and enforced restrictive plant regulations because of em-
ployees' union activity, and engaged in surveillance of
union organizers and employees in the distribution of
union handbills outside the plant, in violation of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended Respondent has entered a general denial.
Complaint CA-4330, issued September 22, 1966, on
a charge filed by the Union August 15, 1966, following a
Board-conducted election in RC-6375 which the Union
lost, alleges that in June 1966 the Respondent refused to
recognize and bargain with the Union as bargaining
representative of a majority of Respondent's production
and maintenance employees, and in July and early August
made promises of pay raises to employees and engaged in
interrogation and other restraints of employees in connec-
tion with voting at the representation election in order to
destroy the union majority, in violation of Section
8(a)(1)and (5) of the Act. Respondent has pleaded a
general denial.
In RC-6375, seven of the Union's objections to con-
duct by the Respondent affecting the election of August
9, 1966, were overruled by the Regional Director, and
five were referred by him to the Trial Examiner for
resolution, pursuant to a Supplemental Decision and
Order of September 20, 1966. These remaining objec-
tions essentially resemble allegations of the two above-
described complaints, relating to interrogation, surveil-
lance, and promise of economic benefits, plus an added
objection to a speech on the day before the election al-
legedly without opportunity for the Union to refute
claimed inaccuracies.
All three cases were consolidated for hearing by the
Regional Director's Order of September 22, 1966, and
the matter was heard by Trial Examiner Herzel H. E.
Plaine in Mansfield, Ohio, on October 18-20, 1966.
167 NLRB No. 160
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel, the Charging Party,
and the Respondent have filed briefs.
Upon the entire record of the case and from my obser-
vation of the witnesses, I make the following.'
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT, AND THE LABOR
ORGANIZATION INVOLVED
The Respondent is an Ohio corporation with its prin-
cipal place of business located in Mansfield, Ohio, where
it is engaged in the manufacture and sale of thermostats
for electrical appliances.
Annually, in the conduct of its business Respondent
ships from its place of business in Mansfield, Ohio,
directly to points in States outside Ohio, products valued
in excess of $50,000. The Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
IL THE UNFAIR LABOR PRACTICES
A. Background and Issues
The Respondent is engaged in the manufacture of ther-
mostats for small electrical appliances at the Mansfield.
Ohio, factory with a production and maintenance staff in-
cluding shipping department employees of about 80 em-
ployees, largely women. The plant houses other em-
ployees, notably the engineering department, but the
Union is not seeking to include them in the bargaining
unit or to represent them for collective bargaining.
The Union initiated a whirlwind organizing campaign
in the first weekend of June 1966. Making use of a team
of the Company's women employees who visited the
homes of their fellow employees, most of the production
workers were called on that Saturday and Sunday, June
4 and 5, and by Sunday night a few less than a majority
had signed cards authorizing the Union to represent them
in collective bargaining.
The next day, Monday, June 6, Respondent's factory
manager called in the four women employees who had
done the principal weekend campaigning and discharged
them. Two were long time employees of 10 and 7 years'
standing, respectively, who were discharged for alleged
insubordination (explained as failure to get along with su-
pervision, or having hostile attitudes), and two, who were
sisters and had worked for 2-1/2 years and 7 months,
respectively, were discharged for refusing to work Satur-
day, June 4, for "straight" time.
The General Counsel contends the discharges were for
engaging in union activity, whereas the Respondent
claims the employees were discharged for good cause
without knowledge on its part of their union activity.
On June 8 the Union filed a petition with the Board for
a representation election and about the same time sent a
request to Respondent, received by it June 9, to meet for
bargaining with the Union as representative of a majority
of its employees. The Respondent refused to meet with
the Union, saying the Act had provided a procedure for
determining representation . The Union 's petition for an
election eventuated in a hearing and direction of an elec-
tion , which was held on August 9. The Union lost (28 for,
39 against , with approximately 16 eligible voters not par-
ticipating), and on August 12 filed objections to conduct
of the Respondent affecting the election.
Meantime the union campaign , begun June 4, con-
tinued in the ensuing days and weeks with union hand-
billing of employees outside the factory and union
meetings conducted by union representatives . Several ad-
ditional employee authorization cards were obtained.
The General Counsel contends that in this period the
Respondent invoked new and stringent rules to curtail
union discussion among the employees in the plant, and
Respondent defends these as long-existing rules relating
to safety, reduced to writing at this time.
The General Counsel further contends that the
Respondent engaged in unlawful surveillance of its em-
ployees and the union organizers in their handbilling ac-
tivities conducted away from the plant. The Respondent
asserts it watched only to see that there was no inter-
ference with the ingress of employees into the plant.
On June 16 the Union made a definitive demand upon
the Respondent for recognition and bargaining as majori-
ty representative of Respondent 's production and main-
tenance workers, and proposed to demonstrate its majori-
ty by a card showing before a disinterested person. This
demand was received on June 17, but Respondent replied
it would not accord recognition without a Board election.
The General Counsel asserts that on June 17 the
Union enjoyed majority status in the appropriate unit,
based upon 43 employee authorizations, including those
of the dischargees , out of a unit of 81 employees and no
more than 83 employees, if 2 disputed machine shop em-
ployees are added . General Counsel contends that the
refusal by Respondent to recognize and bargain with the
Union was not made as the result of a good -faith doubt of
the Union's majority but rather with the purpose to un-
dermine the Union and dissipate its majority. As
evidence of bad faith he points not only to the claimed
violations already described, but also to subsequent al-
leged 8(a)(l) violations right up to the election held on
August 9, involving promises of pay raises made in July
and early August , interrogation of an employee on voting
for the Union, cautioning of new hires not to engage in
union activity, and threatening to close the factory if the
Union came in (the two latter allegations not pleaded but
litigated). General Counsel further contends that all of the
alleged misconduct since the filing of the petition for elec-
tion on June 8 interfered with the free choice of the em-
ployees in the election of August 9. Therefore he urges
that the election be vacated and that a bargaining order
issue requiring the Respondent to recognize and bargain
collectively with the Union by reason of its majority
status on June 17, continuing to about June 28.
Respondent disputes the majority status of the Union
on June 17. He would exclude the 4 dischargees, who
signed authorization cards, and therefore would recog-
nize only 39 authorizations out of the 43 obtained by June
17 (he erroneously has counted a total of 42 cards at that
date and uses a net figure of 38 cards). To the unit figure
(without the dischargees ) of 77 undisputed employees, he
adds the 2 employees of the machine shop , who did not
I To correct certain inadvertent errors in transcription which appear in
the transcript of the record, I have ordered the corrections set out in Ap-
pendix A to this Decision [Appendix A omitted from publication ]
PACE, INC 1091
sign cards, to reach a unit of 79 employees of which
amount 39 authorizations is not a majority. On the other
hand, the General Counsel regards the machine shop em-
ployees as technicians of the engineering department not
includable in the unit, and, of course, contends that the
dischargees did not lose their status as employees.
Respondent denies the commission of the violations al-
leged since June 8, urges that its refusal to recognize the
Union on June 17 was in good faith, and argues that, even
if some of its actions constituted technical violations of
Section 8(a)(1), they were minor and insignificant not
warranting the setting aside of an election and the issuing
of a bargaining order without an election.
B. The 8(a)(3) Discharges
1. Employee activity and employer knowledge
On Saturday morning, June 4, 1966, James W. Butler,
president of the Union's Local 169, initiated the cam-
paign to unionize Respondent's employees by obtaining,
as he testified, a signed authorization card from employee
Ellen Kidd. She gave him three more names, employees
Rosemary Sheeks, Minnie Margaret Clinton, and Carol
Yirga, and Butler called at their homes and signed them
up the same day. The four employees undertook to sign
up other employees and, working either singly or in pairs
or sometimes in larger groups and enlisting the help of
several other employees in some instances , called at the
homes of a large number of their fellow employees that
Saturday and Sunday, June 4 and 5. Not all of those
visited signed authorization cards, according to employee
Clinton, but a large proportion did, so that by Sunday
night, 26 cards were turned in to the union representative
and 7 more were turned in Monday, June 6. (Many of the
cards signed on Sunday were either predated June 4 or
postdated June 6.)
Monday morning, June 6, employees Yirga, Clinton,
Sheeks, and Kidd were the subject of discussion by facto-
ry Manager Donald Reffel and two of his supervisory
staff, General Foreman Kenneth L. Thoman and Super-
visor Irene Harter, according to testimony of Reffel's
secretary, Judy Reed, and confirmed by Manager Reffel's
testimony concerning the Monday supervisory staff
meeting. Thereafter about 10 or 10.30 a m. in conversa-
tion with secretary Reed, Manager Reffel talked about
these girls and said, as Mrs. Reed testified:
We should keep an eye on them because they are
going to cause trouble. He had heard they were going
to try and get a union in and that he didn't want to go
through this again, because he went through it about
two or three years ago.2
Later that day, about 2 p.m., employee Alice King was
called in for the only on-the-job interview she had with
Manager Reffel. Supervisor Thoman was present. Em-
ployee King was among those who had assisted in obtain-
ing some authorization card signatures the previous day,
Sunday. According to employee King, Manager Reffel
said he was checking on Saturday work and wanted to
know if she had not worked the past Saturday, June 4,
because it was at "straight" time pay.3 Employee King
said no, she had called in and reported off sick. Manager
Reffel acknowledged that Mrs. King's daughter had
called in for her but said he was double checking (and did
so, he testified, because Supervisor Harter had reported
employee King did not want to work Saturday for
"straight" time). He accepted her reason, and said to em-
ployee King, "Alice, something big has come up around
here. I sure hope you are not in on it " Further, he said,
things were going to be changed and run by company
rules and if the girls did not stick to company rules they
could leave. Manager Reffel then said, according to em-
ployee King, "Do you want to turn in your notice," to
which she remained silent. Manager Reffel then asked
Supervisor Thoman about employee King's work, and
was told it was good, and the conversation veered to a
personal matter which employee King raised with
Manager Reffel.4
During the day, there had been not only the early morn-
ing meeting of Manager Reffel's supervisory staff which
discussed the four employees, but also a meeting of the
management committee, comprising President Carto,
Chief Engineer Huffman, Comptroller Ream, Manager
Reffel, and Vice President Irvine may have been present.
As Reffel testified, he brought the cases of employees
Kidd, Yirga, Clinton, and Sheeks to the management
committee, who decided on the dismissal of the four em-
ployees for alleged reasons discussed infra (and see
Reffel's documentation of the matters, G.C. Exhs. 8, 9,
and 10).
Accordingly, at approximately the end of the working
day (3.30 p.m.) Monday, June 6, Manager Reffel called
in employees Clinton and Sheeks (together), Yirga and
Kidd (separately), and discharged them. In this connec-
tion, several days after their discharges, Manager Reffel
had his secretary, Judy Reed, type up and place in their
personnel files memoranda which he dictated on each of
the four employees, purporting to show chronologically
the complaints about each and the reasons for discharge.5
2. Employee Kidd
Employee Kidd worked for the Respondent for 10
years, mostly on various equipment in the pressroom.
Manager Reffel had known her all these years and the
quality of her work had been satisfactory, but on June 6
Manager Reffel fired her for insubordination (G.C. Exh.
8) although he and her foreman, Bruce Johnston, con-
ceded she never refused to take orders or to do a job, and
that he, Reffel, had recently persuaded her to work on
overtime Saturday, May 21, despite the fact that she had
2 Manager Reffel, in his direct testimony, denied that he made such
statements to his secretary but, on cross-examination, changed his story
and agreed that when he found out that his employees were engaged in
union activity he commented to secretary Reed that "we were being so-
licited for a Union", and agreed that the conversation covered the earlier
Machinists Union campaign and the aggravations he went through, and
that he said to secretary Reed "I just hated to go through it again "
-t The normal workweek was 40 hours and usually did not include Satur-
day, hence any Saturday work usually was at the higher overtime rates
However, because a holiday had occurred in the workweek ending June
4, management had taken the position that Saturday was part of the
week's 40 hours, payable at the normal or "straight" time rate This posi-
tion had been questioned by employees Clinton and Sheeks, as discussed
infra
Manager Reffel 's testimony was in general accord, except he did not
think the personal matter came last in the conversation He added that at
one point employee King offered to quit if her means of notifying of
absence was causing trouble
The memoranda are G C Exh 8, re employee Ellen Kidd, G C Exh
9, re employees Margaret Clinton and Rosemary Sheeks , and G C Exh
10, re employee Carol Yirga Manager Reffel agreed these were prepared
after the discharges and not contemporaneously with the events or com-
plaints recorded under the dates shown in the memoranda
310-541 0 - 70 - 70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked overtime during that entire week (a fact not
accurately reflected in G.C. Exh 8 ). Manager Reffel
claimed that he used the word " insubordination" in his
brief discussion of dismissal with employee Kidd, but
from his fuller explanation at the hearing and her testi-
mony it is obvious he told her she was being dismissed
because she could not get along with other girls (un-
specified ) and with Foreman Johnston.
The difficulty with this explanation was that it did not
stand up under scrutiny Thus, of the approximately 15
regular and 17 temporary employees who worked in the
pressroom in the 10-year period employee Kidd worked
there, Manager Reffel knew of only two alleged employee
complaints against her. In the one case , the alleged com-
plaint by employee Alice King to Manager Reffel to be
transferred to another job because of harassment by em-
ployee Kidd (G.C Exh. 12) was denied by employee
King, who testified she asked Manager Reffel for a
transfer to get into cleaner work.6 The second alleged
complaint, by employee Fultz, that employee Kidd urged
her to quit the Company (G.C. Exh 11), denied by Kidd,
was unsubstantiated hearsay on Reffel's part, written up
at Reffel's direction more than 2 months after it was al-
legedly made and several days after employee Kidd was
fired.
Concerning Foreman Johnston, it was a matter of at-
titude, a feeling on his part, he testified, that employee
Kidd resented him or his changing her from job to job,
though she never talked back and never refused to
comply with an order or a change, or to do a job, nor did
this "attitude" affect the quality of her work or her
willingness to help others when he asked. According to
Foreman Johnston, who was a comparatively new em-
ployee and employee Kidd's foreman less than a year, she
"talked everybody down" - fellow employees and the
management - but no one else heard it so far as he knew
and he, Johnston, never heard it from anyone, and he
never observed her in arguments with others including
employee King. He claimed he reported to Manager
Reffel about her because he did not like her attitude. It is
significant that what Manager Reffel caused to be written
up and filed about employee Kidd after she was
discharged (G.C. Exh. 8), such as continuous backtalk,
idling, wanting to run the pressroom , and resisting orders,
went considerably beyond what Foreman Johnston
would support in his testimony, summarized above.7
The former general foreman, David Burton, who was
production foreman under Manager Reffel from August
1961 until March 1966, when he took employment else-
where, testified that when previous union activity had
occurred at the plant, Manager Reffel had brought up em-
ployee Ellen Kidd's name, along with others, as one
suspected of being among the employee leaders who were
to be watched for infraction of company rules. In the
representation election involving the Machinists Union,
employee Kidd served as one of two observers for the
Union ; and when the subsequent contract negotiations
failed , she was one of the employees who went out on an
unsuccessful strike, according to employee Yirga.
6 Employee King testified that she and employee Kidd had not con-
versed much with each other , but added it was probably her own fault
rather than Mrs Kidd's
] Also it is not without significance that in discharging employee Kidd
on June 6 , Manager Reffel conceded that he interrogated her about her
whereabouts on Saturday , June 4 , even though he admitted he knew she
had made arrangements well in advance not to work that Saturday
8 Manager Reffel said he agreed with Foreman Thoman that employee
3. Employee Yirga
Employee Carol Yirga was employed by Respondent
as a welder for 7 years until discharged on June 6, 1966.
The report on her conduct (G.C. Exh. 10) written up
several days after her discharge specifies she was
dismissed for insubordination . As told to her by Manager
Reffel , employee Yirga testified , she was discharged
because she did not get along with her previous foreman,
David A. Burton , and his successor since mid-April
1966, General Foreman Kenneth L. Thoman, and for not
working on Saturdays . Manager Reffel says he sum-
marized the reasons for her on June 6 as the complaints
by Foreman Thoman.
Foreman Thoman was a newcomer in mid-April 1966.
He was put in charge of production , supervising the entire
shop (under Manager Reffel) replacing previous General
Foreman Burton, who had spent 5 years in that capacity
before leaving for other employment.
Foreman Thoman directly supervised the welders. He
testified that employee Yirga was consistently the best of
the welders and could and did out produce any of them.
Her fellow workers, such as employees Ruth Ann Jarvis,
Margaret Worden, and Jean Newton, who also testified,
agreed that she was the best and out produced each of
them, and also helped each of them with their work. She
also helped Foreman Thoman to learn this phase of the
production work with which he was unfamiliar though in
charge, and Thoman conceded this was so.
Nevertheless, testified Foreman Thoman, he had the
feeling that employee Yirga was hostile to him and was
turning the other girls against him, though he did not hear
or see her talking about him or get reports from anyone.
He surmised it, he said, from the fact that everybody
seemed to follow her . He said she harassed him by asking
about company policy, although he could not recall
anything specific, and on the other hand there were times
when she did not speak to him at all unless it was necessa-
ry for her work.
Foreman Thoman said he regarded her as a "ring-
leader" of the "trouble " caused in the welding depart-
ment .8 The "trouble" was essentially two incidents in
May 1966 , involving the welders (not employee Yirga
alone ) and Foreman Thoman , which incidents were
apparently resolved as they arose.
The incidents involved employee talking on the job and
overtime. About 2 weeks after his start, as Foreman
Thoman testified (and employees Yirga, Jarvis, Worden,
and Newton agree), he called the group of six welders
into the lunchroom to tell them there was too much con-
versation on the job and it would have to stop. Employee
Yirga, according to all of the witnesses, spoke up to ask
why the welders were singled out for blame, to which
Foreman Thoman responded, if she did not like the way
things were being run, there was the door and she could
leave. All agree that employee Yirga made no response.`'
Foreman Thoman conceded that other workers, such
as welders Worden and Jarvis (and other employees in
other parts of the shop), engaged in conversation and left
Yirga was a ringleader , meaning the girls would follow her, but not a
troublemaker
" Foreman Thoman also testified that about the same time , May 2, he
called the girls , including Yirga, into the office individually to further lec-
ture them on talking , but both employees Yirga and Jarvis deny this and
claim that the individual conversations were limited to the overtime
matter that arose in the following week , discussed infra
PACE, INC.
their work stations from time to time, and that employee
Yirga did no more of it than they, who are still employed.10
About a week after the lunchroom session with the weld-
ers, on Monday, May 9, Foreman Thoman told them
they would be working overtime for the remainder of the
week. Employees Yirga, Worden, and Jarvis came to him
to ask if the extra hour could be put in by an early start at
6 a.m instead of 7 a.m., which would maintain the same
quitting hour of 3.30 p.m. and permit attending to per-
sonal chores and appointments. Foreman Thoman ap-
parently consulted Manager Reffel who indicated that
this would be all right and it was up to Thoman. Thoman
gave his approval. He then reversed himself before the
day was out and angered the girls, who thought he was
being arbitrary and told him so, whereas he thought he
had acted in fairness to all of the girls. On the following
day, May 10, when asked to stay over till 4:30 p.m., em-
ployees Yirga, Worden, and Jarvis stated they had previ-
ously arranged appointments, whereupon Foreman
Thoman told them if they did not work that night they
would be fired, and went to Manager Reffel with that
recommendation. Reffel called in the three girls, who
were upset, but Yirga no more than the others, according
to employee Jarvis, and proceeded to smooth out the rift
by talking individually to each, hearing their complaints
that Foreman Thoman was making it difficult for them,
suggesting to each that maybe they had approached the
new foreman in the wrong way, and obtaining a promise
from each that they would get along with him. Employee
Yirga and Foreman Thoman both testified there were no
further reprimands or conversations until the discharge
interview on June 6, and Manager Reffel said he had had
no discussions with Yirga except on the overtime in-
cident.
As Manager Reffel viewed it, in his testimony, the
problem with employee Yirga narrowed down to her
"resentful" attitude toward Foreman Thoman. Reffel
testified she was not a problem until after Thoman ar-
rived, in mid-April 1966. Nonetheless, he said, the quali-
ty of her work and rate of production remained good, and
there were no adverse reports in her personnel file other
than the document typed and filed after her discharge,
General Counsel's Exhibit 10."
David Burton, employee Yirga's previous foreman for
about 5 years and predecessor of Thoman, testified that
Yirga was a better welder than any the Company had, and
that he never had any problem with her. Shortly after he
began work for the Respondent, the Machinists Union
campaigned to organize the employees and obtained and
won an NLRB election by one vote. Management knew
that Yirga had been an activist in the campiagn for that
union, he said. In the subsequent unsuccessful contract
negotiations in 1962 employee Yirga was, as she testified,
10 In the light of the specific testimony concerning employee Yirga by
Foreman Thoman, and the corroborative testimony of the employee wit-
nesses , including testimony that it was common for the employees to en-
gage in conversation during work with occasional reminders to "keep it
down" but never any disciplinary measures of discharges, and of Vice
President Irvine's boast in his speech to the employees on July 22, 1966
"At what other plant can you visit back and forth during working hours"
None that we know of, even unionized plants" (G C Exh 5, p 3), it is ob-
vious that the June 6 entry in G C Exh 10 concerning Yirga that Thoman
complained of "continuous slow up in her work, excessive talking, leaving
work station" is fiction to provide window dressing for the complaint
about her "attitude "
ii Manager Reffel referred to some personal notes which purported to
show that on three earlier occasions, in September 1964, September 1965,
and March 1966, employee Yirga had been called down variously for talk-
1093
one of four employees on the negotiating committee, of
whom three were no longer with the Respondent at the
time of her discharge. She attended almost all of the
negotiating meetings, but after a year of bargaining no
agreement was reached, and as Foreman Burton testified,
Manager Reffel told him the Machinists Union signed a
waiver of its right to bargain. Manager Reffel also had
told him, said Burton, that it was company policy to
negotiate for 12 months as required by law but to agree to
nothing and at the end of that time have the matter
"flowed into another election"; meantime, the new hires
would be screened to hire girls against the Union.
According to employee Yirga, when the Machinists
negotiations failed to produce a contract there was an un-
successful strike and picketing by some of the employees,
and finally all resumed work.
Foreman Burton testified that employees Yirga and
Kidd (who was also believed to be one of the employee
leaders), were not fired after the Machinists negotiations
ended. However, he said, there were discussions of the
union activists by the supervisory staff and Manager
Reffel said these people would be "gotten rid of." Reffel
asked him, said Burton, to observe employee Yirga and
any chance to fire her.
The last conversation on this subject took place about
2 years back in a supervisors' meeting in which Burton
and Mrs. Irene Harter, a lead supervisor in his depart-
ment , were among those participating. There were ru-
mors of fresh union activity and the names of several em-
ployees, including Yirga, were mentioned. Manager
Reffel asked Foreman Burton, according to Burton, to
fire employee Yirga, and Burton said he took the position
with Reffel that he could not because she was a better
welder than any they had, and Supervisor Harter sup-
ported him in that position, said Burton. He was told, said
Burton, if Yirga violated any rules, she would have to be
fired. 12
The failure-to-work-Saturdays reason, given employee
Yirga at the time of her discharge, rested on her alleged
failure to report to work Saturday, June 4, but it was
acknowledged that she called in sick (because of an ailing
shoulder); and there was no contradiction of her
testimony that she had a good record of Saturday work,
including working from 6 a.m. to 9 a.m. on Saturday
mornings when she had doctors' appointments
4. Employees Clinton and Sheeks
Employee Margaret Clinton had worked for the
Respondent for 2-1/2 years on various jobs, principally
stemming thermostats, before she was discharged on June
6, 1966 Her sister, employee Rosemary Sheeks,
mg at the machine, backtalking to a supervisor, and "not respecting poli-
cies " The notes also showed that on each of the three occasions she
received a pay raise, first to $ 1 50, then to $ 1 55, and lastly to $1 60, per
hour
12 Manager Reffel admitted he had conversations with Foreman Burton
concerning employee Carol Yirga and her participation in certain union
affairs, but denied that he had told Burton to get rid of her Employee Mar-
garet (Marty) Worden, who is still in the employ of Respondent, testified
that Burton told her after he left Respondent's employ that he had been
told "to get rid of Carol" because of her participation in union matters In
light of the inconsistencies and contradictions in the testimony of Manager
Reffel, some of which have been noted previously, others infra, I do not
credit his denial and I accept as true the testimony of former Foreman
Burton
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged at the same time, had worked about 7-1/2
months on the probe line. Their work had been good, in-
deed Manager Reffel told them only a few days before
their discharge that they were good workers whom he
would hate to lose, as employee Clinton testified.
At the end of work June 6, both employees were called
in by Manager Reffel and told they were discharged for
not having worked Saturday, June 4, notwithstanding the
fact that their intended absence in protest of the Com-
pany's refusal to pay at overtime rates had been settled
with a reprimand on June 3. The Saturday issue was the
only matter discussed, and the only reason for discharge
given them, on June 6, as both women testified. The
memoranda, which Manager Reffel put into their person-
nel files several days after the discharge, General Coun-
sel's Exhibit 9, purports to indicate additional reasons,
namely, "both work records show slowness and exces-
sive absenteeism." However, it is clear that these addi-
tional reasons are fictitious and were never told to the em-
ployees. Manager Reffel gave no testimony, and Re-
spondent offered none through any witness, on alleged
slowness or discussion of slowness with the two em-
ployees, and Reffel admitted he had never raised any
issue about absenteeism with these employees."
On the subject of working Saturday, June 4, the
shop employees had been told they would be ex-
pected to work that day at the regular (straight) hourly
pay rates, rather than overtime rates (time and a half)
usually paid for Saturday work, on the ground that since
the Monday of that week, May 30, was a holiday,
Memorial Day, they would be required to make up the
time to complete the 40-hour week at straight pay. Em-
ployees Clinton and Sheeks came to Manager Reffel on
Wednesday or Thursday and told him their husbands ob-
jected to their working for straight pay on Saturday. As
employee Clinton pointed out to Manager Reffel, we had
a holiday Monday but, if we had to work on Saturday at
straight time, Monday would no longer have been a
holiday. Manager Reffel explained to them that he was
following past practice when a holiday fell in a workweek
and asked them to discuss the matter further with their
husbands. On his part, he told them he would take up the
matter with management . As he testified, this was the
first time anyone had questioned the practice, and he was
now concerned with the correctness of it, and he did not
regard the matter as one to be settled by discharging the
employees but rather to be considered by top manage-
ment. He promptly took the question to President Carto,
who checked with company counsel, and on Friday, June
3, Manager Reffel and the two employees met again.
They said their husbands still objected and would not per-
mit them to work Saturday at straight time; and he told
them that as a result of his discussion with management
they could not be excused from Saturday work for this
reason, that the refusal would be written up in their
records, and if a similar refusal occurred again they would
be discharged automatically."
5. Conclusions re 8(a)(3)
The recited evidence reveals that the employer, with a
history of, and currently continued, union animus,'' on
learning of a burgeoning union organization among its em-
ployees, swiftly and unerringly pinpointed the four em-
ployee leaders - Kidd, Yirga, Clinton, and Sheeks - and
discharged them because of their union activity. These
were proven and able employees, with good, even out-
standing, production records, and with no records of
disciplinary problems until such records were prepared,
after the discharges, to provide management justification
for the discharges. Between these records and the
testimony at the hearing, shifting and evasive reasons
were given for the discharges, reasons which proved to be
essentially not true as they were scrutinized.
In the cases of employees Kidd and Yirga, alleged in-
subordination turned out to be a recently discovered feel-
ing on the part of their respective new foremen that the
two employees had a resentful attitude in performing their
work, which admittedly they performed very well. The
Employer's complaint that employee Kidd, an employee
for 10 years, had recently taken to harassing her fellow
employees was scotched as untrue by the one employee
(Mrs. King) who was said to be harassed; and the alleged
libeling of the management by employee Kidd was
completely unsubstantiated. Additionally, the Em-
ployer's complaint that employee Yirga did not get along
with her previous foreman, Burton, was directly refuted
by Burton, and there was no evidence for the charge that
she had refused to work Saturdays. Both employees
Yirga and Kidd had been marked for special observance
by supervisory staff because of their past union interest.
In the case of employees Clinton and Sheeks, the Em-
ployer's reasons that they were slow workers and given
to excessive absenteeism were afterthoughts that were
contrary to fact. The principal cause for discharge al-
leged, the employees' challenge of work on Saturday,
June 4, at "straight" pay rather than the usual overtime
pay for Saturday work, was originally treated by manage-
ment as a grievance that merited consideration, and it was
settled beforehand, June 3, by excusing failure of the two
employees to work that Saturday, with the condition that
if a similar occasion and refusal occurred in the future it
would result in discharge. The Respondent repudiated the
settlement 3 days later, on June 6, for no apparent reason
other than the vigorous union activities of employees
Clinton and Sheeks in the interval.
The Respondent had actual knowledge of the union ac-
tivities of the four employees, as the evidence indicated
The abruptness of their discharges, without prior warn-
ing, and with shifting explanations that failed to stand
under scrutiny, justify the conclusion that Respondent's
desire to discourage union support in the shop was the
real motive behind the discharges, and the discharges vio-
lated Section 8(a)(3) and (1) of the Act, N.L.R.B. v.
Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8);
11 He gave by summary in his testimony a purported record of 9 days'
absence in a period of over a year for employee Clinton, and 13 days'
absence in a period of 7-1/2 months for employee Sheeks, neither record
in itself necessarily excessive, especially when coupled with his admission
that he did not know and could not tell whether there were excused
absences or not
14 Testimony of employees Clinton and Sheeks, and Manager Reffel's
contemporaneous corroboration in G C Exh 9 "On Friday June 3
[b]oth Margaret and Rosemary were told this would be written up on
their personnel records Refusing to work Saturday June 4, for straight
time At this time they were both told we could not let this happen again
and they should report for work Monday, June 6 " In his testimony,
Manager Reffel unconvincingly attempted to get around this record of the
settlement by ignoring it and seeking to create the impression that the
issue had been deferred for the management committee called on June 6
to consider the cases of employees Kidd, Yirga, Clinton, and Sheeks,
where the decision was made to dismiss all four, discussed Supra
I5 Additional evidence of animus is noted infra
PACE, INC
N.L.R.B. v Dant & Russell, Ltd., 207 F.2d 165, 167
(C.A. 9); N.L.R.B. v. Griggs Equipment, Inc, 307 F.2d
275, 278 (C A. 5); N.L.R.B v. Georgia Rug Mill, 308
F.2d 89, 91 (C.A. 5), even if the discharges were only
partly motivated by the impermissible antiunion cause,
N.L.R.B. v. Iron City Sash & Door Company, 352 F.2d
437,438 (C.A. 6).
C. The 8(a)(1) and Other Conduct
Following the discharge on June 6 of employees Kidd,
Yirga, Clinton, and Sheeks, the Union continued its cam-
paign, begun 2 days before, by passing handbills to the
employees on the streets nearby the factory (the first
handbills distributed on the morning of June 8), by hold-
ing meetings (the first of them on the night of June 8), and
by obtaining additional signed authorization cards, the
last of which was obtained on June 28, 1966. On June 7,
by letter from Union Representative Andrew J. Clark,
received by Respondent June 9 (G. C. Exh. 56), Respond-
ent was asked for a meeting to bargain collectively with
the Union as majority representative of the employees,
which request was refused by letter dated June 9 and
received June 10 (G.C. Exh. 57); and at about the same
time, on June 8, the Union filed with the Board a petition
for a representation election.
1. Publication of restrictive rules
On June 9, the day following the first union distribution
of handbills (which Respondent closely observed as
discussed infra) and the first organizing meeting of the
Union, Manager Reffel directed his secretary, Judy Reed,
to type up a list of "Rules That Have Been Neglected"
(G C. Exh. 13), which he ordered posted in the plant and
asked employees to read According to Manager Reffel,
these had never been typed, or printed, or posted before,
and he wrote them up for the first time in draft on June 7,
notwithstanding he claimed to have been discussing them
with employees for 3 or 4 years. Foreman Thoman and
Supervisor Harter also did some work on the Reffel draft
before Judy Reed typed the rules.
The Company already had a set of rules for employees
(G.C. Exh. 27) published in pamphlet form 5 years earlier
and distributed to all employees and to new employees as
hired ands when the supply was exhausted, maintained on
the plant bulletin board to which each new employee was
referred, according to Manager Reffel. The additional set
of rules (G.C. Exh. 13), which in some respects repeat the
earlier set and in some instances go further in restrictive-
ness, were meant, according to Manager Reffel, for
safety, as in the case of rule 3 - no talking on the equip-
ment- and to provide equality, as in the case of rule 4-
no talking at all except work- for the bench workers as
well as the equipment workers, even though safety was
not involved.
Manager Reffel conceded, however, that he suddenly
decided on June 7, 1966, after the 3 or 4 years of talking
about them at employee meetings, to point and post these
additional rules. According to secretary Judy Reed, he
told her when he gave her the draft to be typed, that he
wanted the girls to read the rules because other girls were
trying to get the Union in, he wanted the rules posted and
acknowledged by everybody, and he did not want any-
body to do anything out of the way while the union busi-
ness was going on. Further, he told Supervisor Harter
1095
and Foreman Thoman, that he wanted everything to look
legal when the NLRB investigators arrived. Manager
Reffel did not dispute this conversation.
The new rules were brought to the attention of the em-
ployees (testimony of employees Plankenhorn, King) and
were posted (testimony of employee Worden). Hitherto,
prior to the week of June 6, there had been no written rule
on talking as the employee witnesses testified (Newton,
Clinton, and others, and see G.C Exh. 27), though some
referred to it as an unwritten rule and occasionally the
girls would be told to lower their voices for safety reasons
(according to employee Yirga); but all testified that talk-
ing on the job was common and never disciplined other
than by periodic cautions of supervisors to keep the talk-
ing down Employee King was among those who testified
that before the new rules were posted they could talk on
and off the job and did. When asked on cross-examination
by Respondent's counsel why the change when on
production, she replied, "because the Union was
started "
Rule 10 (of G.C. Exh. 27), the no-solicitation rule, and
rule 4 (of G C. Exh. 13), the no-conversation rule, are
broadly restrictive and make no differentiation between
work areas and nonwork areas.
2. Surveillance
The testimony of Representatives Butler and Clark of
the Union, and Manager Reffel and Foreman Johnston of
the Respondent, established that the first handbill dis-
tribution by the Union commenced Wednesday, June 8,
in the early morning of the second day after the discharge
of the four employees, between 6 and 7 a.m. Employees
were due in at 7 a.m.
Two of the union representatives, Butler and Ferguson,
stationed themselves at the intersection of Pearl Street
(which leads to the plant parking lot) and a cross street
some 60-70 yards from the entrance to the parking lot,
and handed circulars to motorist employees who either
drove across the intersection on Pearl Street, or turned
from the intersecting street into Pearl Street, toward the
plant.
Shortly after the distribution began Manager Reffel
dispatched Foreman Johnston in his car to observe the
distribution. Initially, Johnston stationed his car in the in-
tersection motioning to employees' cars coming toward
him. The occupants of these cars went by without taking
handbills, according to Union Representative Butler.
After a few minutes of this Johnston stationed his car on
Pearl Street beyond the intersection and behind the two
handbillers, where he had the intersection and handbillers
in full view. He also kept his car door open and looked
back at curs approaching the intersection from behind
him, as Butler testified. Handing the papers to occupants
of the cars that stopped to take them took about 4 or 5
seconds per car, according to Butler.
Manager Reffel said he had directed that Johnston go
out to observe the handbilling to be sure that employees
coming to work were not stopped or turned away from
the plant gates or from any roads leading to the plant.
After observing for about 15 minutes Foreman Johnston
drove back to the plant and reported that everything was
all right and there was no interference, and he so testified.
A second handbilling of the same nature at the same
place was done 2 days later, early Friday morning, June
10, by Union Representatives Butler and Clark. Manager
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reffel had a chance to observe this distribution himself at
6:30 a.m , about the time it began, as he turned his car
into Pearl Street at the intersection , going toward the
plant , and took a handbill from Clark. 16 Nonetheless,
Reffel had Foreman Johnston drive out and observe this
second distribution, and Johnston took up the same
vantage point behind the handbiller, with his car door
open , according to Union Representative Clark. Manager
Reffel claimed he was not satisfied with Foreman John-
ston ' s previous report that employees were not turned
away, and it was necessary to observe a second time, a
claim that had no ostensible external support. 17
In and about this same time period, Manager Reffel en-
gaged in conversations with various employees that were
not calculated to be reassuring to employees who might
be engaged in union activities Notable among these was
his statement to employee Lana Plankenhorn , that he
knew who the troublemakers were and we have a few
tricks up our sleeve. This statement was made the same
day employee Plankenhorn received her copy of the new
plant rules, General Counsel's Exhibit 13.111
Other statements of similar character involved em-
ployee King (referred to in discussion of the discharge of
employee Kidd, supra ) when on June 6, Reffel said to
King that something big has come up and he sure hoped
she was not involved, and Manager Reffel 's comment to
employee Kidd , on the same day, that something was
going on and two people had reported seeing her uptown
the day before
3. Promises of pay raises
On July 11, the Regional Director of the Board issued
a Decision and Direction of Election which was followed
by a notice of election to be held August 9, 1966. In addi-
tion, on July 17 Respondent received, and thereafter
refused , the Union 's definitive request for recognition, on
a card showing, as majority representative of the unit of
Respondent 's production and maintenance employees.
On July 22, 27, and August 8, Respondent 's Vice Pres-
ident Alexander S Irvine gave three speches opposing
unionization of the shop (G.C. Exhs. 5, 6, and 7, respec-
tively), to all employees assembled in the plant. Among
other things, Vice President Irvine announced in the July
22 speech that in January 1967 the starting rate of em-
ployees' pay would go from $ 1.25 per hour to $1.40 per
hour and the top scale would go from $1.60 per hour to
$1 75 per hour , without need to pay union dues or initia-
tion fees for these increases (G. C. Exh 5). He repeated
the statement in the July 27 speech (G.C. Exh. 6). In the
speech of August 8 (G.C. Exh. 7), the day before the
election , he took cognizance of union talk that the Com-
pany in announcing the increase was giving only what
would be required of it by law. He said:
There has been some talk about our going to a
$ 1.40 minimum rate because the law required this.
The law, however , does not dictate what we do with
our top rate . As we have told you before , our rate
16 Manager Reffel denied that he knew who was doing the handbdhng,
but changed his story , under prodding , and admitted he knew Union
Representative Clark
10 There were some later handbill distributions , but observing by the
Employer apparently ceased
19 Manager Reffel agreed that the conversation took place but that its
content was not as described by employee Plankenhorn However,
will go from $ 1.60 to $1 . 75, because this has been
our policy for about 8 years. Everytime we increased
the starting rate, we also adjusted the top rate.
The evidence showed that although an amendment to
the Minimum Wage Law was under discussion in Con-
gress, beginning with House debate about May 23, 1966,
it was not finally adopted until mid-September 1966 and
became law September 23, 1966, more than 2 months
after Vice President Irvine's pay raise announcements.
Irvine made no reference to the pending legislation or fu-
ture legal requirement in announcing and repeating the in-
crease . Even in his third talk on the subject (quoted
above) he made no concession that the Company was
doing only what might be required by law in increasing
the minimum wage, and he clearly claimed company
credit for increase of the top scale.
Indeed, Vice President Irvine testified on cross-ex-
amination that the Respondent knew of the pending
legislation earlier than June 6, and did not announce the
pay raise then nor did it delay its announcement until
after the representation election , but announced it in late
July before the election to influence the employees to
vote "no" on the union question because, he said, we did
not think a union was necessary at Pace
Manager Reffel also made preelection wage increase
promises. His memorandum, General Counsel ' s Exhibit
67, produced from employee Larry Welch' s personnel
file, under date of August 2 , 1966, indicates he told
Welch "that after February 1, 1966, [sic] everyone would
receive a 15cent an hour general raise ... if the union did
not get in at Pace, Inc." "
Vice President Irvine's claim , that the Company had a
long established (8 year) policy of increasing top scale
pay whenever minimum or starting pay rates were in-
creased , failed of proof. The document she introduce
Respondent ' s Exhibit I through Respondent ' s Exhibit
12, showed no minimum or maximum rates, but simply
purported to list a number of named employees who were
given pay raises at specified dates over a period of years.
He conceded that there were other pay raises between
1959 and 1966 for other employees not named in these
exhibits.
Moreover the scales that Vice President Irvine con-
tended were in effect , were not borne out by the exhibits.
For example, the current scale (at the time of the hearing
in late 1966) was reputed to be $1 . 25 minimum $1.60
maximum, in which the top went to $1 60 from a previous
top of $1.45. However, Respondent's Exhibit 12 dated
March 16 , 1966, listing 73 employees with pay raises
posted mostly as of March 7, 1966, and some earlier and
as early as September 28, 1964, showed that prior to their
increases 17 employees enjoyed a rate higher than the
previous alleged top of $1.45 (ranging from $1.50 to
$1.70), and that currently three employees enjoyed a rate
over the alleged top of $1 . 60 (at $1.70, $1.80, and $2,
respectively ). There was no basis in the evidence to con-
clude that there was a regular history of corrective in-
creases of the top pay scale whenever Respondent's
minimum wages were increased by law or otherwise.
Reffel 's lack of regard for the "whole truth " in this proceeding, as illus-
trated in several places in the Decision, left much to be desired , and 1 do
not credit this denial
19 Manager Reffel acknowledged in his testimony that this was a true
statement , but sought to qualify it by saying he meant "everyone in the
shipping department "
PACE, INC
4. Interrogation and threats of reprisals
Barbara Touby and Florence Bennett Strimple were
newly hired commencing June 13, 1966.
Employee Strimple was interviewed on June 11 by
Manager Reffel who asked , among other things, she said,
if she had ever worked where there was a union. She said
no, and he told her there were girls taking up for the
Union and if she were bullied to let him know He said he
was not worried with the percentage the Union had then,
but if the Union did get in he would have to close the
doors because the place was too small for a union.20
Barbara Touby , now a student at Ohio State Universi-
ty, was interviewed by Manager Reffel , along with two
other named employees She testified that he warned her
there was trouble in the factory because of the Union,
that she should beware of signing anything, and since she
was a student to be employed for the summer it might be
better if she stayed out of the whole thing 21
About August 2, 1966, one week before the scheduled
representation election , Manager Reffel came into the
shipping department where he had a discussion with em-
ployee Larry Welch about union activities , as Reffel and
Welch both testified , with Foreman Thoman and Super-
visor Jeff Ream present 22 ( both conceded by Respondent
to be supervisors , Tr. 123), followed by another conver-
sation at the same location involving only Reffel and
Welch
In the opening conversation , Manager Reffel , who had
hired employee Welch , alluded to the coming election,
and Foreman Thoman asked employee Welch if he knew
on which side his bread was buttered Employee Welch
indicated resentment of the remark , whereupon Foreman
Thoman said to Manager Reffel he had better come right
out and ask Welch if he was going to vote for the Union
or for the Company. Manager Reffel asked the question,
to which employee Welch replied he did not know too
much about it. Manager Reffel then told Welch if he did
not know too much about it he had better stay out of it.'-1
According to employee Welch , Manager Reffel came
back again by himself and talked about pay benefits-a
raise after the 90-day probationary period and later the
I5-cent raise which Reffel 's note and testimony indicate
he said all would get February 1, 1967, if the Union did
not get in at Pace (discussed under Section C, 3, supra).
If the Union did get in, then according to Reffel's ac-
count, any raises would have to be negotiated through a
union contract.
20 Manager Reffel admitted that he explained to employee Strimple
when he hired her that there was union activity to organize Pace, but
claimed that he advised her this was something for her to decide and if she
did not understand company policies to come to him He denied saying if
she were bullied to come to him and that if the Union came in he would
have to close the doors I do not credit Manager Reffel's denials, in view
of his shading the truth in other instances noted
21 Manager Reffel conceded that he discussed the union organizing and
card signing with employee Touby, but said the discussion was in terms of
his being solicitous of whether she would be eligible to participate as a
part-time employee and to find out for herself and make up her own mind
I find this alleged nuance incredible in the light of Manager Reffel's
hostility to the unionization of the plant and his shading of the truth in
other instances That the attempted coercion did not succeed in the case
of employee Touby, who later signed a union card, does not disturb the
finding of coercion. N L R B v Bioin-Dunkin Company, 287 F 2d 17,
18 (C A 10). Mu,iav Em elope Coip 130 N LRB 1576
22 Both employee Welch and Manager Reffel testified that these two su-
pervisors were present Foreman Thoman said in a preheanng statement
that he was not piesent, but changed his story at the hearing to say that he
was there for part of the discussion, and it is clear from his other testimony
1097
In the course of this second conversation , as employee
Welch testified, Manager Reffel stated if he knew Welch
was for the Union he would probably not have hired him
Welch had not been asked about his union views when
hired, May 31, 1966 (prior to the start of the union
campaign)
5. Objections to conduct affecting the election
In RC-6375, the Union's unresolved objections to con-
duct of the Respondent affecting the results of the elec-
tion of August 9, 1966, are 1, 2, 3, 6, and additional ob-
jection 2 (G. C. Exh 1).
Objections 1, 2, 3, and additional objection 2, charge
employer misconduct embraced by the unfair labor prac-
tice complaints and the evidence covered under the
preceding headings I through 4 The objections comprise
coercive interrogation of employees concerning union in-
terest and voting, surveillance of union handbill distribu-
tions, and posting and enforcing restrictive rules affecting
employee communications and union activity. Therefore,
no separate consideration of these objections is necessa-
ry.
Objection 6 alleges that in a speech to employees
delivered about noon on August 8, the day before the
election , the Respondent made inaccurate statements
about a strike at a nearby company, Richland Shale
Brick, implying the inevitability of a strike if the Union
won the election the next day , and timed the address so as
to render the Union incapable of adequately answering
the speech
The speech in question is Vice President Irvine's
speech of August 8 (G C. Exh. 7), discussed in connec-
tion with the promise of pay raise, heading 3, .supra The
reference complained of in the present connection ap-
parently is the following.
But one question the Union has never answered, is
how much the people at Richland Shale Brick ac-
tually got over what the company offered before the
unnecessary 7 week strike.24
Union Representative Clark testified that not only had
he explained the Richland Shale strike and employee
wage situation in previous speeches he made to the
Respondent's employees, but that on the night of August
8, following Vice President Irvine's speech and being ap-
prised of it , he had the chance in a meeting with Respond-
ent's employees to rebut all of Respondent 's claims. In
and employee Welch's that he, Thoman, contributed to the discussion, as
appears infix Supervisor Jeff Ream, took the stand to deny that he had
been present It Supervisor Ream were these it was clear that he did not
affirmatively contribute to the discussion If he were not there it is
nevertheless equally clear that the discussion took place
'' Manager Reffel claimed that the conversation had to do with em-
ployee Welch asking if he was eligible to vote in the election and Reffel's
response that he probably was but Manager Reffel's more or less contem-
poraneous note of August 2 (G C Exh 67), contradicts his testimony in-
dicating that management, after submitting an eligibility list to the Board,
informed Welch and five or six others that they would be eligible to vote
and the conversation with Welch "at this time was," we would not tell him
how to vote but would like him to listen very carefully to the talks we were
giving regarding our viewpoints opposing the Union at Pace The shifting
explanations of Manager Reffel, and of Foreman Thoman, supia, indicate
a tampering with the truth, and I credit the account of employee Welch
'A The claimed inaccuracy, implying inevitability of a strike, is the word
"unnecessary," preceding the reference to the 7-week strike I find no
need to deal with the merit or lack of merit of this claim in view of the
testimony which follows
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances there is no basis for objection 6, and I
will recommend that it be overruled.
6. Conclusions re 8(a)(1) and the election
I am impressed that the conduct of the Respondent, in
the period June 8 through August 8, was the continuation
of a deliberate program, initiated by the precipitate
discharge of the four leading union activists on June 6, to
influence its employees , by coercion and by promises,
as thought needed , to reject unionization of the factory.
The instances of misconduct were not casual or isolated.
- a. Discriminatory rules
The Respondent 's promulgation and posting on June
9 of another set of rules , in addition to existing rules
governing employee conduct, can be explained , from tim-
ing and content , only in the light of and as a means to limit
the employee interest and activity in union organization.
Thus the new general "no talking" rule admittedly was
not devised for plant safety reasons (as claimed for the
"no talking on equipment " rule), and in view of the plant
history of liberality on employee talking and visiting, the
employees were not without justification, as employee
King saw it, in regarding the new rule and the change as
the Employer's way of inhibiting employee union talk and
solicitation . The promulgation of the additional rules was
for a discriminatory purpose and a violation of Section
8(a)(1) of the Act. Ward Manufacturing, Inc., 152 NLRB
1270, 1271.
c. Surveillance
Respondent 's surveillance of the handbill distributions
to employees by the union representatives on June 8 and
10 was also a violation of Section 8(a)(1), notwithstanding
the surveillance was carried on openly and not surrepti-
tiously, N.L R B v. Collins & Aikman Corp., 146 F 2d
454, 455 (C.A 4). Such conduct could only stir in the
minds of employees apprehension of unfavorable em-
ployer action and was an interference with their Section
7 rights. Respondent ' s repetition of the surveillance of
June 10 after Foreman Johnston reported no interference
with employees' ingress to the plant of the first occasion,
June 8, and after Manager Reffel had observed no inter-
ference with employees at the start of the second distribu-
tion , makes hollow the claim that this was a measure to
protect employees . Likewise, Respondent conveyed,
through the statements of Manager Reffel to employees
Plankenhorn , King, and Kidd (referred to under section
C, 2, above), the impression of surveillance of the em-
ployees in their union activities that constituted unlawful
restraint in violation of Section 8(a)(1)
d. Coercive interrogation and threats
The coercive interrogation of, and threats of reprisals
to employees Touby, Strimple, and Welch by Respond-
ent's manager (referred to under Section C, 4, above),
respecting signing or voting for the Union and loss of pay
raise and plant closure if the Union came in, were further
violations of Section 8(a)(1), N.L.R.B. v. Winn-Dixie
Stores, Inc., 341 F.2d 750, 752 (C.A. 6), cert denied 382
U.S. 830.
b. Invalid nonsolicitation rule
Moreover , the new prohibition against conversation
other than that relating to work (rule 4 of G.C. Exh 13)
makes no distinctions between working time and non-
working time or between work areas and nonwork areas.
The earlier, still existing rule against solicitation of any
kind on company property without company permission
(rule 10 of G.C . Exh. 27 ) draws no distinction between
work areas and nonwork areas New rule 4 by itself could
be understood by employees to prohibit them from engag-
ing in union solicitation anywhere on company property
even during nonworking time, or , at the very least, in
combination with old rule 10, to prohibit them from en-
gaging in union solicitation in nonwork areas of company
property during nonworking time. Miller Charles and
Company, 148 NLRB 1579, 1580-81 There was no
showing of necessity for such a sweeping prohibition, and
the prohibition is presumed to be an unreasonable impedi-
ment upon the organizational rights of employees , absent
special circumstances that would make the rule necessary
to maintain production or discipline Republic Aviation
Corp v. N.L R.B., 324 U.S. 793, 803-804, N.L R.B v
Babcock & Wilcox Company, 351 U.S 105, 113. The
presumption applies without any necessity to show that
no alternative means of communication existed off the
premises, N.L.R.B. v. United Aircraft Corp., 324 F.2d
128, 130, 131 (C A. 2), cert denied 376 U.S. 951; and
promulgation and maintenance of the rule violated Sec-
tion 8(a)(1) of the Act, id. and Walton Mfg. Co, 126
NLRB 697, Enforced N.L.R.B v. Walton Mfg. Co., 286
F.2d 177, 180 (C A. 5), even though the rule may not
have been enforced by the employer, Great Atlantic &
Pacific Tea Co., Inc., 162 NLRB 1182, 1 184.
e Promises of pay raises
Lastly, the promises of pay raises made to the em-
ployees by Respondent 's vice president just before the
representation election , with the admitted intention of in-
fluencing the employees to reject the Union , and the ex-
press threat by Manager Reffel that the raise would not
be forthcoming if the Union came in (see Section C, 3,
above), were clear violations of Section 8(a)(1). Wage in-
crease plans or promises conceived or accelerated for the
purpose of counteracting a union organizing campaign
violate Section 8(a)(1), N.L.R .B. v. Exchange Parts Co,
375 U S. 405, 409-410; Great Atlantic & Pacific Tea
Co., supra, 1185. Even without the damaging admission
of the unlawful purpose present here, the fact that
Respondent gave sporadic individual raises in prior years
would not negative the inference that the pay raises
promised during the union campaign were intended to
counteract the activities of the Union , N.L.R B. v. Valley
Broadcasting Co., 189 F.2d 582, 586 (C A 6).
f. Election prejudiced by misconduct
In sum , this series of substantial 8(a)(1) violations com-
mitted by Respondent between the filing of the petition
for a representation election and the holding of the elec-
tion destroyed the "laboratory conditions ," Neuhoff
Bros . Packers, Inc. v. N.L R B., 362 F 2d 611,613 (C.A.
5), desirable for the conduct of a Board election , and in-
terfered with the free choice of the employees indeed,
"conduct violative of Section 8(a)(I) is, a fortiori,
conduct which interferes with the exercise of a free and
untrammeled choice in an election ... because the test of
PACE, INC. 1099
conduct which may interfere with the `laboratory condi-
tions' for an election is considerably more restrictive that
the test of conduct which amounts to interference,
restraint, or coercion which violates Section 8(a)(1)."
Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786-87,
Playskool Manufacturing Co., 140 NLRB 1417, 1419;
Leas & McVitty, Inc., 155 NLRB 389, 391. A fortiori,
the Charging Party has established its objections 1, 2, 3,
and additional objection 2, to the conduct of the Re-
spondent affecting the results of the election.
Accordingly the results of the election of August 9,
1966, must be set aside.
D. The 8(a)(5)-8(a)(I) Conduct
1. The union demand and Respondent's reply
The Union made its demand for recognition as
representative of a majority of the Respondent's produc-
tion and maintenance employees in a letter from the union
lawyer dated June 16 (G.C. Exh. 2), received by- -Re-
spondent June 17, 1966 The letter requests meetings for
collective bargaining and offered to submit the signed
authorization cards for check by an impartial person, sug-
gesting the local common pleas judge or other disin-
terested party
Respondent replied through its lawyer in a letter dated
June 24 (G C. Exh. 3) that it would not accord recogni-
tion to the Union without a Board election, making the
gratuitous suggestion in this circumstance that the com-
mon pleas judge was too busy for a card check.25
2. The unit exclusion of engineering department em-
ployees
While Respondent 's total plant at Mansfield houses
other employees , notably the engineering department, the
Union has sought and claimed to represent only the unit
of production and maintenance employees, which by
stipulation of the parties includes the shipping department
employees.26
In this unit on June 17, 1966, when the demand for
union recognition and bargaining was received by the
Respondent , there was an undisputed minimum of 77 em-
ployees, per list General Counsel's Exhibit 4, on which
Respondent also shows 2 additional employees, Petrovic
and Wharton , whose inclusion in the unit is disputed by
the General Counsel . 27 The list does not include the four
dischargees, employees Kidd, Yirga, Clinton, and
Sheeks. Since their discharges were unlawful, as found
above, they were properly a part of the unit. Adding the
dischargees to the 77 undisputed employees, the unit
numbered 81 employees on June 17, unless either or both
Petrovic and Wharton bring the number to 82 or 83.
According to the testimony of Comptroller Robert
Ream , Mike Petrovic and Gerald Wharton are salaried
employees who work for Chief Engineer John Huffman.
Huffman is in charge of the engineering department,
which is a separate department not under Manager
Reffel's Jurisdiction. As Reffel put it, Huffman is his
coequal in the management scale. According to Comp-
troller Ream, it is Chief Engineer Huffman who disposes
of the time of employees Petrovic and Wharton - he tells
them what they are to do, where to work , and on what to
work. No record is kept of their assignments, and their
salaries have been set by Chief Engineer Huffman and
the company president. In contrast, the production and
maintenance employees are hourly rated and their pay is
initially determined by the factory manager, Reffel.
Chief Engineer Huffman did not testify, but Manager
Reffel, who was questioned concerning employees
Petrovic and Wharton, did not disagree essentially with
Comptroller Ream. So far as Manager Reffel knew,
Petrovic and Wharton spent a large part of their time in
the machine shop of which Chief Engineer Huffman was
in charge . While the engineering department including the
machine shop (located in adjoining rooms) is under the
same roof as the production area of the factory, the en-
gineering department and the machine shop are separated
from the production area, the machine shop being beyond
the stockrooms about 50 feet from the production area.
Manager Reffel regarded both Petrovic and Wharton as
essentially machinists with their principal work station
the machine shop; however, he said, periodically they
would work for him on production tooling, and Petrovic
who, according to Reffel, was in charge of the machine
shop (under Chief Engineer Huffman), would report to
Manager Reffel on the work done for Reffel, as would
Wharton on the things he did for Reffel. In vacation
periods for the production department , when the plant
normally closed down, the machine shop remained open
because of the new production tooling. Manager Reffel
was not familiar with what both employees did with their
time when not doing things for him, nor did he know
whether they were on salary or time pay
Foreman Thoman testified that both Petrovic and
Wharton were machinists who spent their time in the
machine shop principally making models (also referred to
by him and Reffel as mockups or prototypes). Wharton,
who originally had been hired by Manager Reffel and
worked as a production foreman before he became a
machinist and moved to the machine shop, would on oc-
casion be brought back briefly to help out as a substitute
foreman for the welders when Foreman Thoman needed
help and Manager Reffel could not cover for him, accord-
ing to employees Jarvis and Yirga; but, as Foreman
Thoman testified, there were days when he did not see
Wharton at all and did not know what he was working on.
It is clear that employees Petrovic and Wharton are
part of the engineering department , and would seem to be
among the employees the parties intended to exclude
from the unit by the description "technicians in the en-
21 The reply was consistent with a previous reply by Respondent, dated
June 9 (G C Exh 57), to an earlier less definitive request by the Union
for collective bargaining dated June 7 (G C Exh 56), received by the
Respondent on June 9 The Union 's letter ofJune 7 appeared to relate to
all of the employees rather than the unit of production and maintenance
employees as refined in the letter ofJune 16, and the first letter is not re-
lied upon by the General Counsel as the Union's demand for recognition
t', It was stipulated that the unit is correctly described in paragraph 7 of
the complaint in Case 8-CA-4330 (Tr 22), which is the same description
that was stipulated in connection with the Decision and Direction of Elec-
tion (G C Exh I) The description reads "All production and main-
tenance employees employed at the Employer's Mansfield, Ohio plant, in-
eluding shipping department employees but excluding technicians in the
engineering department , group leaders, office clerical employees , profes-
sional employees , guards and supervisors as defined in the Act "
20 List G C Exh 4 actually shows 80 rather than 79 names, including
the name of employee Elinor Brown , penned in by stipulation, but as
developed in the hearing, the name of Jeffrey Ream should have been
dropped since he was a supervisor, as conceded by the Respondent (Tr
123) Respondent in its brief, p 85, correctly fixes 77 employees as the
undisputed minimum General Counsel agrees, but the Charging Party er-
roneously used the figure 78, undoubtedly overlooking the after-
developed ineligibility of Supervisor Ream
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gineering department ," footnote 26, supra. Though the
description of their background , training, and functions is
meager, there is enough in the record to justify classifying
the two machinists as technical employees who do not
meet the strict definition of "professional employees"
under the Act, but whose work is of a technical nature
that gets them apart from the production workers, under
the Litton and Sheffield test .28
Perhaps more decisive than any classification, how-
ever, is the fact that the engineering department as a
whole , and these two employees specifically , are set apart
from the production and maintenance workers of the
plant by the totally different nature of the work per-
formed, by the separate physical location away from the
production area, by the different training from, absence
of interchange and only occasional personal contacts
with , plant production workers (with Wharton and
Petrovic in apparent supervisory capacities when such
contacts occur), by the separate supervision from topside
plant management , and by the different method of pay-
ment for services. From this combination of factors it
does not appear that employees Petrovic and Wharton,
and the employees of the engineering department
generally, have a sufficient community of interest with
those in the production and maintenance unit to be in-
cluded in the unit , and I exclude them."
3. The Union's majority status
Properly excluding Petrovic and Wharton , the ap-
propriate unit, as already indicated, numbered 81 em-
ployees on June 17, when the Union 's request for recog-
nition was received by the Respondent . At that date the
Union had 43 signed cards authorizing it to represent the
employees in collective bargaining , a clear majority of the
unit of 81 employees .30 All of the employee authoriza-
tions were duly authenticated and are not challenged by
the Respondent . A number of them , signed on Sunday,
June 5, were either predated June 4 or postdated June 6,
but all 43 cards were in hand on June 17.
When the demand for recognition and offer of an impar-
tial card check was received on June 17 the Respondent
raised no question as to the cards or the claimed majority.
The response was simply and flatly a refusal to recognize
the Union without a Board election (G.C Exh. 3).
Respondent ' s position was the same position it took 2
weeks earlier (G.C. Exh. 57) when it replied to the less
definitive request for bargaining (G.C. Exh. 56) received
June 9. At that time the Union had 36 signed authoriza-
tion cards in a unit it believed comprised 70 employees
(representation petition of June 7, 1966) and to which the
parties stipulated , in connection with the direction of
election of July 1 I , as approximately 65 employees (G.C.
Exh. 1). The actual size of the unit on June 9 was not
established , nor does the General Counsel rely on the
union request at that time to establish a demand for recog-
nition and majority status. Nevertheless , the Respond-
ent's first reply reinforces the view respecting its later
reply, that Respondent raised no question as to the
21 Litton Industries of Mars/and, Inc, 125 NLRB 722, 725, as
modified in 7lie Sheffield Corporation, 134 NLRB 1101, 1103-04, test
recently summarized in Western Gear Corporation, 160 NLRB 272.
273-274
Compare Arbon sas Grain Coiporation, 163 NLRB 625
0 The unit increased in size by June 28 numbering , with additions and
deletions, 84 employees ( including the 4 dischargees), at which time the
Union ' s majority status but was insisting upon an election
even if the Union then represented a majority of the em-
ployees in the unit, as turned out to be the case.
4. The unlawful refusal to recognize and bargain with the
Union
"Where a union has obtained authorization cards
signed by a majority of the employees in an appropriate
unit, the employer violates Section 8(a)(5) of the Act if he
refuses to recognize and bargain with the union . The em-
ployer is protected from this charge only if he has a good-
faith doubt as to the reliability of the authorization cards.
... `[1]n the absence of such a doubt , the employer has
no vested right to an election."' (Emphasis supplied by
the court .) Colson Corporation v. N.L.R.B., 347 F.2d
128, 135 (C.A. 8), cert. denied 382 U.S. 904
As found , when presented with the union demand for
recognition , the Respondent did not express doubt in its
reply to the union claim of majority . Rather , the Respond-
ent rejected dealing with the Union , rejected the proffer
of a card showing, and took the stand that it had a vested
right to an election . Contemporaneously , both before and
after the request to bargain , compare N L.R.B v. Boot-
Ster Manufacturing Co., 361 F.2d 325 (C.A . 6), the
Respondent engaged in coercive efforts to undermine em-
ployee support for the Union and to destroy the Union's
majority status by discharges , threats of other reprisals,
interrogation , surveillance, and promises of benefits that
exhibited to the employees Respondent 's rejection of the
collective-bargaining principle. Such "course of conduct
is an absolute refutation of any good-faith doubt on the
part of the Company ," N.L.R.B. v. Overnite Transporta-
tion Co., 308 F 2d 279, 283 (C.A. 4).
Following the Respondent ' s refusal to deal with it, the
Union pursued its bargaining request through the Board's
election procedure until the Respondent's Section 8(a)(1)
misconduct resulted in the Union losing its majority
status and the election.31
The Union did not waive its right to press its charge
against the Respondent of refusal to recognize and bar-
gain because the Union participated in the representation
election . N.L.R.B . v. S.N.C. Manufacturing Co., 352
F.2d 361 (C.A.D.C.), cert . denied 382 U . S. 902; Colson
Corporation v. N.L.R. B., supra at 138, and decisions by
other courts of appeals , approving the principle ex-
pounded in Bernel Foam Products Co., 146 NLRB 1277,
1279-83. In S.N.C., Colson, and Bernel Foam, the Board
set aside the elections , the course recommended here,
because of the misconduct of the respective respondents
that interfered with the free choice of the employees.
In my view, the Respondent violated Section 8(a)(5) by
refusing, without good -faith doubt of the Union ' s majori-
ty status, to recognize and bargain with the Union upon
its demand received June 17, 1966 , when the Union
represented a majority of 43 employees in an appropriate
unit of 81 employees A bargaining order should issue,
and all proceedings in connection with Case 8-RC-6375
should be vacated and the petition therein dismissed since
Union had acquired a few more signed cards fora net of 46 authorizations
by persons then on the payroll plus the 4 dischargees
3i The filing of the representation petition did not absolve the Em-
ployer , who had no good-faith doubt of the Union ' s majority status, from
the duty of recognition and bargaining , N L R B v C J Glasgow Com-
pany, 356 F 2d 476, 479 (C A 7)
PACE, INC.
no current question concerning representation exists,
S.N.C. Mfg. Co., supra, 147 NLRB 809, 810-81 1, enfd
352 F.2d 361 (C.A.D.C.), cert. denied 382 U.S. 902;
Great Atlantic & Pacific Tea Co., supra, 162 NLRB
1182,1187 •i2
In any event I would direct the Respondent to recog-
nize and bargain with the Union in order to remedy the
Respondent's violations of Section 8(a)(1) and (3), which
ultimately dissipated the Union's majority, and to restore
"the situation, as nearly as possible, to that which would
have obtained but for" the unfair labor practices, Phelps-
Dodge Corp v. N.L.R.B., 313 U S. 177, 194. It can be
said here, as it was said in N.L.R.B. v. Philamon Labora-
tories, Inc , 298 F.2d 176, 182-183 (C.A. 2), cert. denied
370 U.S. 919:
The Union lost majority status because of Respond-
ent's violations of the law. The only effective
remedy left in the present case is the requiring of
recognition.
Where the employer's illegal interference with its em-
ployees' rights has caused the union loss of majority it is
"well within the NLRB's discretion to seek a remedy
which would effectively restore the status quo ante. It
seems most unlikely that a simple cease and desist order
could be expected to accomplish this result." N.L.R.B v.
Delight Bakery, Inc., 353 F.2d 344, 347 (C.A 6).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section 11,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
IV. THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1), (3), and
(5) of the Act, I shall recommend that it cease and desist
therefrom and from interfering in any like or related
manner with the efforts of the Union to bargain collec-
tively with the Respondent.
I shall also recommend certain affirmative action which
will effectuate the policies of the Act. In particular, it will
be recommended that the Respondent bargain with the
Union, upon request, a provision which would be recom-
mended under all the circumstances, even if there had
been no violation of Section 8(a)(5) of the Act, in order to
remedy the violations of Section 8(a)(1) and (3) that were
designed to destroy the Union's majority status and to
avoid the Respondent's obligation to recognize and bar-
gain with the Union. N.L.R B. v Delight Bakery, Inc.,
supra at 347.
Because Respondent discriminatorily discharged em-
ployees Ellen Kidd, Carol Yirga, Margaret Clinton, and
Rosemary Sheeks, it will be recommended that the
Respondent offer them immediate and full reinstatement
to their former positions or to substantially equivalent
positions, without prejudice to their seniority or other
" The directing of another election at this time would not be an effec-
tive remedy in the repressive atmosphere created by the Respondent it is
not required that the Union must first win an election before being given
1101
rights or privileges. It will be recommended that the
Respondent make them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them by payment to each of a sum of money equal
to that which each normally would have earned as wages
from June 6, 1966, the date of discharge, to the date of
the Respondent's offer of reinstatement, less net
earnings, if any, during this period. The backpay shall be
computed on a quarterly basis as prescribed by the Board
in F. W. Woolworth Company, 90 NLRB 289, approved
in N.L.R.B v. Seven-Up Bottling Company of Miami,
Inc., 344 U.S. 344, and shall include interest at 6 percent
per annum as provided by the Board in his Plumbing &
Heating Co., 138 NLRB 716, approved in Philip Carey
Manufacturing Company, Miami Cabinet Division v.
N.L.R B., 331 F 2d 720 (C.A. 6) and cases cited.
Because the Respondent by its conduct violated funda-
mental employee rights guaranteed by Section 7 of the
Act, and because there appears from the manner of the
Commission this conduct a disposition to commit other
unfair labor practices, it will be recommended that the
Respondent cease and desist from in any manner infring-
ing upon the rights guaranteed employees by Section 7 of
the Act N.L.R.B. v. Entitistle Mfg. Co., 120 F.2d 532,
536 (C.A. 4)
Upon the basis of the foregoing facts and upon the en-
tire record in the case, I make the following:
CONCLUSIONS OF LAW
I The Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act
2 The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees at the
Pace, Inc., Mansfield, Ohio, plant, including shipping de-
partment employees, but excluding employees in the en-
gineering department, group leaders, office clerical em-
ployees, professional employees, guards, and supervisors
as defined in the Act.
3. The Union at all material times has been and is the
exclusive representative of the employees in the aforesaid
unit within the meaning of Section 9(a) of the Act.
4 By interfering with, restraining, and coercing em-
ployees in the exercise of their rights under Section 7 of
the Act, and by discriminatorily discharging four of the
employees because of their union activities, the Respond-
ent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
5 By refusing, on and since June 17, 1966, to recog-
nize and bargain collectively with the Union as the exclu-
sive representative of the employees in the aforesaid bar-
gaining unit, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. The said unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
bargaining authouty , N L R B v International Union , Progresiire Mine
Worbei s of Aniei ica, 375 U S 396, a per curianr revel sal in this respect of
319 F 2d 428 ,437 (C A 7)
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this proceed-
ing, I recommend that Pace, Inc , its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and, upon request, to bargain
collectively with the United Steelworkers of America,
AFL-CIO, as the exclusive representative of the em-
ployees in the following bargaining unit:
All production and maintenance employees at the
Pace, Inc , Mansfield , Ohio, plant, including shipping de-
partment employees , but excluding employees in the en-
gineering department ; group leaders, office clerical em-
ployees, professional employees , guards, and supervisors
as defined in the Act.
(b) Interfering with, restraining , or coercing the em-
ployees in their union activities , or concerted activities
for the purpose of collective bargaining , by discharge,
threat to close the shop or other reprisal ; by coercive in-
terrogation concerning , or surveillance , or creating the
impression of surveillance of union activities; by the
promulgation and maintenance of rules prohibiting em-
ployees during nonworking time from engaging in union
solicitation on the Respondent ' s property , or by promise
of benefits to employees to discourage their union sup-
port.
(c) In any other manner interfering with , restraining,
or coercing employees in the exercise of their rights of
self-organization , or to form , join , or assist the Union, or
any other labor organization , to bargain collectively
through representatives of their own choosing , to engage
in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from engaging in any or all such activities , except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment , as authorized in Section 8(a)(3) and
recognized in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Recognize and, upon request, bargain collectively
with the U nion, as the exclusive representative of the em-
ployees in the bargaining unit described above, and em-
body any understanding reached in a signed agreement.
(b) Offer to employees Ellen Kidd , Carol Yirga, Mar-
garet Clinton , and Rosemary Sheeks immediate and full
reinstatement to their former positions or to substantially
equivalent positions without prejudice to their seniority
or other rights and privileges , and make them whole, in
the manner set forth in the section of this Decision enti-
tled "The Remedy," for any loss of earnings they may
h-ve suffered as a result of the discrimination against
them.
(c) Preserve and, upon request, make available to the
board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at the Respondent ' s plant at Mansfield, Ohio,
copies of the attached notice marked "Appendix B "33
Copies of said notice, to be furnished by the Regional
Director for Region 8 , after being duly signed by Re-
spondent 's representative , shall be posted by Respond-
ent immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.34
?1 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
iJ In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL recognize and, upon request, bargain
with United Steelworkers of America , AFL-CIO
(the Union) as the exclusive representative of our
employees in the bargaining unit descnbed below,
and embody any understanding reached in a signed
agreement . The bargaining unit is:
All production and maintenance employees of
the Pace, Inc , Mansfield , Ohio, paint , including
shipping department employees , but excluding
employees in the engineering department, group
leaders, office clerical employees , professional
employees, guards, and supervisors as defined
in the Act.
WE WILL NOT discourage your activity or member-
ship in the Union or any other labor organization, by
discriminating against you if you choose to engage in
activity for or to join the Union or any other union.
Because the Board found that we did so discriminate
when we fired employees Ellen Kidd , Carol Yirga,
Margaret Clinton , and Rosemary Sheeks,
WE WILL offer to Ellen Kidd , Carol Yirga, Mar-
garet Clinton , and Rosemary Sheeks full reinstate-
ment to their old jobs, and WE WILL pay them for any
loss of earnings that they suffered because we fired
them.
WE WILL NOT discharge you, or threaten to close
the shop, or threaten you in any other way, because
of your support of the Union
WE WILL NOT promise you employment benefits
to discourage your support of the Union.
WE WILL NOT interrogate you coercively respect-
ing your union activities or interest, and WE WILL
NOT engage in surveillance of union activities or
create the impression of such surveillance.
PACE, INC
WE WILL NOT promulgate or maintain any rules
prohibiting employees during nonworking time from
engaging in union solicitation in the plant or on our
property.
WE WILL respect the rights of our employees to
self-organization, or to form, join, or assist any labor
organization, or to bargain collectively concerning
terms or conditions of employment through
representatives of their own choosing, or to refrain
from any such activity, and WE WILL NOT interfere
with, restrain, or coerce any employee in the exercise
of these rights, except as these rights might be af-
fected by a contract validly made under the National
Labor Relations Act with a labor organization,
whereby membership in the labor organization is a
condition of employment after the 30th day following
the date of the contract or the beginning of the in-
dividual's employment, whichever is later.
1103
You and all of our employees are free to become or
remain, or to refrain from becoming or remaining, mem-
bers of any labor organization.
Dated By
PACE, INC.
(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, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 216-621-4465.