Peerless Bread Machinery Corp.

National Labor Relations Board - Board Decisions

Feb 7, 1969

174 N.L.R.B. 351 (N.L.R.B. 1969)

PEERLESS BREAD MACHINERY CORP.
Peerless Bread Machinery Corporation and Lodge
No. 2167 of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
Cases 8-CA-4899, 8-CA-4972, and 8-RC-6983
February 7, 1969
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 4, 1968, Trial Examiner Morton
D. Friedman issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor
practices in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in
certain other unfair labor practices in violation of
Section 8(a)(1), (3) and (5) of the Act, and
recommended that such allegations of the complaint
be dismissed, that the objections to the election be
overruled and the results of the election be certified,
as further set forth in the attached Decision.
Thereafter, the General Counsel filed exceptions and
a supporting brief, and the Respondent filed an
answering brief to the General Counsel's exceptions,
cross-exceptions, and a brief in support of
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in these cases, and hereby
adopts the Trial Examiner's findings,' conclusions,
and recommendations.'
The General Counsel takes exception to the Trial Examiner's credibility
findings It is the Board ' s established policy, however , not to overrule a
Trial Examiner 's resolutions with respect to credibility unless , as is not the
case here , the preponderance of all the relevant evidence convinces us that
the resolutions are incorrect . Standard Dry Wall Products , Inc, 91 NLRB
544, enfd 188 F 2d 362 (C.A 3).
As the election in Case 8-RC -6983 has not been set aside, we find it
unnecessary to pass on any of the Trial Examiner ' s findings and
conclusions dealing with those portions of the complaint relating to
majority status and the alleged violation of Section 8(a)(5) of the Act See
Irving Air Chute Co ., Inc, 149 NLRB 627, 629-630 , enfd 350 F 2d 176
(C A. 2).
ORDER
351
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Peerless Bread
Machinery Corporation, Sidney, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes cast in the election has not been cast for
Lodge No. 2167 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, and
that said labor organization is not the exclusive
bargaining representative of the employees in the
unit found appropriate within the meaning of
Section 9(a) of the Act, as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed in Case 8-CA-4899 on January 19, 1968, by Lodge
No. 2167 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called the
Union, the Regional Director for Region 8 of the
National Labor Relations Board, herein called the Board,
issued a complaint on February 29, 1968, on behalf of the
General Counsel of the Board, against Peerless Bread
Machinery Corporation, herein called the Respondent or
the Company, alleging violations of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended (29
U.S.C. Sec. 151, et seq.), herein called the Act.
Thereafter, upon a charge filed on March 15, 1968, by the
Union, the said Regional Director issued a complaint
against the Respondent in Case 8-CA-4972 on April 11,
1968, alleging violations of Section 8(a)(1) and (5) of the
Act. In its duly filed answers the Respondent, while
admitting certain allegations of the complaints, denied the
commission of any unfair labor practices.
On April 8, 1968, the said Regional Director issued a
Supplemental Decision and Order directing a hearing in
Case 8-RC-6983 on Objection No. 1 of objections timely
filed by the said Union with regard to alleged conduct of
Respondent allegedly affecting the results of an election
previously held in the said proceeding. Thereafter,
simultaneously with the issuance of the complaint filed in
Case 8-CA-4972, the said Regional Director issued an
order consolidating all of the aforesaid cases and
proceedings and a notice of consolidated hearing on all
three matters
Pursuant to said notice, the hearing of the consolidated
cases was held before me at Sidney, Ohio, on May 14, 15,
16 and 17, 1968. All parties were represented and were
afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument and to file
briefs. Briefs were filed by the General Counsel and the
Respondent. Upon consideration of the entire record,
174 NLRB No. 53
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including the briefs of the parties, and upon my
observation of each of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation having its office and
only plant located in Sidney, Ohio is engaged in the
manufacture and sale of bread dough mixing machinery.
During the year immediately preceding the issuance of the
complaints herein, the Respondent shipped machinery that
it manufactured of a value in excess of $50,000 directly to
points outside the State of Ohio.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
IL THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Background and Issues
The Respondent, in business for many years, had had
no union organizational activities in its plant until shortly
before Christmas of 1967. At that time, the Union began
to attempt organizing Respondent's production and
maintenance employees. The day after Christmas,
December 26, 1967, the Union made its demand for
recognition and bargaining upon the Respondent Earlier
on that same day, Respondent had laid off six employees.
A few days later the Respondent informed the Union that
it- doubted that the latter had majority status among
Respondent's employees. Thereafter the Union filed a
representation petition, a hearing was held, and an
election ordered pursuant to which order an election was
held which the Union lost.
The complaints allege, in substance, that Respondent,
through its supervisors, threatened an employee with
discharge if the latter joined the Union, interrogated
employees concerning their union activities; told an
employee that benefits would be withdrawn because of the
union activity and the union organizational drive; created
the impression of surveillance; and told an employee that
the layoff of certain employees was the result of union
activity. These alleged acts of interference, coercion and
restraint occurred before,and after the Union's request for
recognition and bargaining.
The complaints further allege, in substance, that on
December 26, 1967, the Respondent laid off or discharged
six employees because of their activity in, and sympathy
on behalf of, the Union. The second complaint then goes
on to allege that the Respondent refused to recognize the
Union as the bargaining representative of its employees in
an appropriate unit; that such refusal to bargain was not
made in good faith and that the Respondent did not have
a good faith doubt as to the Union's majority status.
With regard to the objections filed in the representation
case, the objection relevant here is the first one which
alleges, in substance, the interference, coercion and
restraint in much the same manner as set forth in the
complaint.
The Respondent's answer, while admitting the
jurisdictional facts of the complaint and further admitting
the layoffs and the refusal to bargain, denied that the acts
of interference, coercion and restraint; further denied that
the layoffs were discriminatorily motivated but that they
were, rather, for good economic reason; and, finally,
alleged that the Respondent refused to bargain on the
basis that it had a good faith doubt as to the Union's
majority status and, furthermore, the Union did not have
a majority on the date of the request for recognition and
bargaining.'
B. Interference, Coercion, and Restraint
1. The events
As heretofore noted, the Union began its organizing
campaign sometime in the month of December, 1968.
Around the middle of December, just outside the paint
room in the Respondent's plant, employee George Vaughn
was working when Plant Superintendent Wilbur E.
McVay came up to him. With the words "get the rag out"
McVay urged Vaughn to work harder. In reply, Vaughn
said to McVay, in effect, that when the Union got in
somebody else would get the rag out. To this McVay
answered that if anybody said anything about a union he
would personally fire him.'
The foregoing event occurred at about the time the
Union's organizational drive reached its height. On or
about the 19, 20 and 21st of December, the Union
through Bill Sergent, James McClellan, Robert Stephens
and Morris Hickerson solicited union cards. The chief
solicitor was Bill Sergent.
On December 23, the Union gave a party at the union
hall which was attended by a number of the Respondent's
employees, among them, Harvey Green, Donnie Green,
George Vaughn and Bill Sergent.
On Tuesday, December 26, six employees were laid off,
among them the two Greens and George Vaughn. On the
same day, employee Tuley Maxwell hurt his arm in
repairing an automobile and stayed away from work. He
claimed, on the witness stand, that he had his sister call
McVay to let him know why he was not present.
Thereafter, on Friday, December 29, Maxwell visited
McVay at the plant because he had heard somewhere that
he, Maxwell, had been discharged. During the
conversation with McVay the latter asked Maxwell if
Maxwell had signed a union card. Maxwell insisted that it
was McVay who started the conversation about the
Union.'
On the day before the Maxwell-McVay conversation,
McVay had a conversation with employee Bill Sergent.
McVay asked Sergent why the latter went to the Union
'There is no issue as to the appropriateness of the unit but there are
subsidiary issues as to the inclusions and exclusions within the said unit.
'Although McVay denied that this incident ever occurred , I do not credit
such denial Vaughn's testimony was supported by the testimony of Harvey
Green and Bill Sergent both of whom were present although some 20 to 30
feet away Although, as pointed out by the Respondent , there is some
discrepancy between the testimony of Green and Sergent with regard to
this matter , I nevertheless find that , on the whole , their versions of the
incident support one another. I also find that although there was,
naturally , some noise in the plant , under all the circumstances here Sergent
and Green could have overheard McVay's part of the conversation
'From the credited testimony of Tuley Maxwell which was not
specifically denied by McVay, nor did McVay give any other version of
this conversation From my observation of Maxwell I find him to be a
credible witness generally
PEERLESS BREAD MACHINERY CORP.
office and told them that he, McVay, had fired six people.
McVay told Sergent that the latter knew that Sergent was
on the black list; that McVay had reports that Sergent
had done things like that on prior occasions.'
On January 4, 1968, the Respondent was visited at its
plant by its attorney and member of its executive board,
Charles Lowe. At that time, Lowe, among other things,
called all of the supervisors together and instructed them
with regard to the manner in which they had to act in
order to prevent the commission of unfair labor practices
during this period of time. Lowe not only gave these
supervisors, among them McVay, oral instructions on how
to behave but gave to each of them a printed copy of a set
of guidelines to use in their conduct around the plant
during the organizational and preelection periods.
Nevertheless, according to further testimony of Sergent,
McVay continued his antiunion behavior. Thus, according
to Sergent, on January 8, McVay warned Sergent that the
latter would be better off if he had not brought the Union
into the plant. He told Sergent, according to Sergent, that
the Company had things to give such as 2 weeks paid
vacation, pension plan and good raises.
Sergent further testified that on March 20, 1968,
McVay stated that he, McVay, knew everyone in the plant
who had signed union cards.
While on the stand as a witness for Respondent,
McVay vehemently denied ever having made such
statements to Sergent.
While I have heretofore refused to credit McVay with
regard to other incidents alleged to have occurred, I have
heretofore credited Sergent only when his testimony was
corroborated by other employees or where the incident
that occurred was virtually admitted by McVay and took
place prior to the instruction given the Respondent
supervisors by Respondent's counsel. I was not impressed,
however, with Sergent's general demeanor on the stand
and in this particular instance in the light of McVay's
denials and in the light of my observation of both McVay
and Sergent, I do not credit Sergent and, to the contrary,
with regard to these last two incidents, the alleged incident
of January 8 and the further alleged incident of March 20,
I conclude that Sergent was merely "guilding the lilly."5
The only other incident which could possibly constitute
interference, coercion or restraint involved not McVay,
but Foreman Leonard Gruebmeyer. As detailed elsewhere
in this Decision, on December 26, 1967, Respondent laid
off six employees. One of the six was Harvey Green who
worked in the paint shop. On January 2, Foreman
Gruebmeyer was working with employee Sergent in the
paint shop when Sergent mistakenly called him "Harve
Green." Gruebmeyer then said "you might as well, I'm
here often enough," Upon that remark by Gruebmeyer,
'From the credited testimony of employee Bill Sergent Although I was
not very impressed with most of Sergent ' s testimony, and would not credit
his word necessarily against the word of McVay, during his direct
examination McVay to an extent corroborated Sergent's testimony when
he stated that he told Sergent that he had always trusted him and wanted
to know why he had pulled this union thing on him. Furthermore, McVay
stated that he thought that Sergent should have come to him with his
grievance instead of running down to the union officials and telling them
that he had laid off six union employees . On cross-examination, McVay
stated that by all of this he meant that Sergent had organized a union
behind his , McVay's back For these reasons and for the virtual admission
of his state of mind at the time of the alleged conversation , I do not credit
McVay's denials and do credit Sergent's version of the conversation
'To the extent that I credit a witness only in part and discredit him in
other parts I do so upon the evidentiary rule that it is not uncommon "to
believe some and not all of a witness ' testimony." N L R B. v. Universal
Camera Corp , 179 F.2d 749, 754 (C A 2)
353
Sergent protested that other employees, including the
foreman, were doing the work which the discharged
employees had performed and were not doing it quite as
well. Gruebmeyer then answered Sergent, "Harve would
be here if he would have kept his nose out of things "6
However, both McVay and Executive Vice President
Shaffer testified that among the reasons that Harvey
Green was laid off, and has been refused rehire, was the
fact that Green was found several times "snooping"
around some of the supply bins. Respondent argues that
Gruebmeyer's remark about keeping his nose out of things
with regard to Harvey Green applied to this snooping in
the supply area and in the supply bins and not to the
reason alleged by the General Counsel for Green's
discharge, namely, that Green had signed a union card
and had engaged in union activity.'
2. Concluding findings with regard to interference,
coercion, and restraint
I find McVay's remark to Vaughn to the effect that he
would personally discharge anyone who talked about the
Union, to be a threat of retaliation against any employee
who engaged in Union activity. Such a threat is clearly
coercive and violative of Section 8(a)(l) of the Act I so
find.
For like reasons I find that McVay's threat to Sargent
on December 28 after he had asked Sergent why the latter
went to the union office to tell them that McVay had fired
six people, and his further remark to Sergent that Sergent
was on the blacklist is clearly coercive in that it shows
that the Respondent, at least in McVay's estimation,
might retaliate against Sergent for his going to the Union.
Under these circumstances the remark is clearly coercive
and violative of Section 8(a)(1) of the Act and I so find
Although, as hereinafter set forth, there is some doubt
that at the time of Tuley Maxwell's-interview with McVay
on December 29, Maxwell enjoyed employee status, I
nevertheless find that the questioning by - McVay of
Maxwell as to whether the latter had signed a union card
is coercive and violative of the Act as being unlawful
interrogation. I find that even if Maxwell had been
dropped from the payroll before that date, nevertheless,
his connection with the Respondent's employees were so
close that the questioning of his Union status by McVay
was nevertheless coercive with regard not only to Maxwell
but to Respondent's other employees. I therefore find that
the interrogation violated Section 8(a)(1) of the Act.
With regard to Gruebmeyer's remark to Sergent to the
effect that Harve Green would still be employed if he had
kept his nose out of things, I find that under all the
circumstances, as more fully set forth hereinafter, in this
Decision, the remark could have been applicable to
Green's behavior as an employee in matters other than
union activities and that, therefore, the remark is too
ambiguous under all of the circumstances to serve as a
basis for finding a violation of the' Act. I shall therefore
recommend dismissal of that portion of the complaint
which refers to this incident.,
From credited testimony of Sergent While I have not credited Sergent
in other respects , in this instance , although Gruebmeyer was still working
for the Respondent at the time of the hearing and presumably was
available to testify, Respondent did not call upon him to do so Therefore,
this testimony of Sergent remains uncontroverted and uncontradicted
Accordingly , and for these reasons, I credit Sergent ' s testimony.
'The relation of the remark of Gruebmeyer to Green ' s discharge is
herein below treated in further detail
'There was related at the hearing by employee Garrison a further
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Layoffs
1. The events
At the end of the card soliciting period, the Union held
a Christmas party at its headquarters in Sidney on
Saturday, December 23. Attending the party at the Union
hall was, among others, James Perk, corresponding
secretary of the Union, who was also the brother-in-law of
the Respondent's executive vice president and general
manager, Donald R. Shaffer. Also among the participants
at the party were several of the Respondent's employees.
In the evening, after the party was over, Perk went home.
He was watching a late movie on television while his wife
slept in an adjoining room when, shortly after midnight,
Donald Shaffer and his wife came to the door of the
house for the purpose of extending greetings of the season
to Mrs. Perk. The Shaffer's had also been at a party and
were on their way home when they stopped at the Perk
abode
Although Mrs. Perk is the sister of Shaffer, it is clear
that the Shaffers and the Perks are not very friendly.
Before that night, Shaffer had seen Perk only since the
latter's marriage to Shaffer's sister. They were certainly
not close and Shaffer made the visit only after promising
his mother that he would do so.
Before this visit, Shaffer did not know that Perk was a
member of the Union and certainly did not know that
Perk was the Union's secretary.' After he showed the
Shaffers in, Perk told Shaffer that the Union was going to
go in at the Respondent's plant. After acknowledging this
remark, and after hearing Perk say that some employees
from several of the companies in the Sidney area and
from the Respondent's plant were there, Shaffer asked
who of the Respondent's employees had attended the
Union's party. Perk named the "Green boys, Vaughn, and
Bill Sergent." The conversation thereafter turned to
family matters and shortly thereafter, after exchanging
mutual greetings of the season, the Shaffers left.'°
incident involving McVay which could have taken place anywhere from the
last part of November to the first part of January The dates in Garrison's
mind and the manner in which he generally testified were so vague that it
would be impossible for me to place the incident as having occurred before
or after the union's organizational drive commenced . By reason thereof I
discredit all of Garrison ' s testimony and do not find that the event
occurred Accordingly , I give it no importance in this Decision.
'Perk was not employed at any time by the Respondent
From credited portions of the testimony of Perk and Shaffer . I do not
credit Shaffer's denial or that of Mrs Shaffer , to the effect that Perk
mentioned no names other than that of Bill Sergent . According to Shaffer,
the conversation about the Union and the unionization of the Respondent's
plant was completely one-sided on Perk 's part and he showed absolutely no
interest in the conversation to Perk He testified that he asked Perk no
questions and when Perk mentioned that Peerless was going to be
unionized , all Shaffer said to him was, "It is?" or words to that effect
Both Shaffer and Mrs Shaffer stated that the only name mentioned was
Sergent's . However, Mrs Shaffer admitted on cross-examination that she
was engaged in discussion with her sister- in-law during part of the
conversation between Perk and Shaffer and she did not hear the whole
thing . She further admitted that it would have been possible for Perk to
mention the other names without her hearing them Additionally , Shaffer's
professed disinterest in the entire matter is hardly believable I cannot find
that a manager of a plant, who is also executive vice president and in
complete charge of a plant 's operation , would be completely disinterested,
as Shaffer stated , in the statement that his plant was about to be
unionized Such a claim of disinterest is hardly consistent with normal
human behavior . Moreover, I note that Shaffer said he did not pay much
attention to it because the subject of unionism hurt everyone When asked
why, he said he had no idea why it would hurt everyone. This expression
that "it would hurt everyone" indicated that Shaffer would have been
Thereafter, as heretofore related, on January 26,
McVay gave six employees their final checks and told
them they were being laid off because the Respondent was
cutting down on the work force" The employees who
were laid off are John L. Brooks, Michael DeBrugge,
Frank Ewing, Donnie Green, Harvey Green, and George
D. Vaughn. It should be noted that none of these
employees took any active part in the union organization
of the plant except that Brooks, the two Greens and
Vaughn signed union authorization cards. DeBrugge and
Ewing did not even sign authorization cards.
2. The Respondent ' s proffered reasons for the layoffs
Donald R. Shaffer, in addition to being executive vice
president, general manager, and assistant treasurer of the
Respondent, also serves on the Board of Directors. In
short, Shaffer is responsible for the day-to-day operations
of the Respondent's business. Shaffer testified that about
a week before Thanksgiving, approximately November 19,
1967, he received a rough draft of the Respondent's
quarterly financial report for the period ending October
31, 1967.11 This rough draft, which was later confirmed by
the final draft, showed that as compared to the same
period in the year before, net sales had fallen off from
$189,971.99 to $151,883.91, a decrease of 20 percent. At
the same time the net profits for the same period fell from
$14,633.11 to $2,567.39, percentage wise a decrease of 82
percent. For the same period net profit, as a percentage of
net sales, were 1.69 percent as compared to 7.72 percent
at the end of the same period for the year 1966. Even the
percentage for the quarter of the year 1967 preceding the
quarter here involved was 9.9 percent.
In addition to his report, which Shaffer considered
alarming, there were other factors which caused Shaffer to
worry about the situation of the Respondent It had
recently built and moved into a new plant. The first loan
payment to the bank on the new plant in the sum of
$6,000 was due in January. Additionally, the Respondent's
Federal Income Tax installment in the sum of $26,000
was due. Moreover, dividends to the stockholders which
had been declared during the previous September, and
payable within 30 days, had not been paid. Quite apart
from all the foregoing each week a payroll of
approximately $4,000 had to be met.
Thus, Shaffer, decided that savings had to be made at
some point in the Respondent's manufacturing cost As a
result, he decided to look into the production cost as to
each item of product that was eventually shipped.
Moreover he decided to check on the employees to see
just which shop employees were productive and which
were not. So far as Respondent's financial position was
concerned, Shaffer pointed out that even with the cutting
back measure of the layoff which took place on December
26, 1967, Respondent was still in a bad financial position
as late as January 26, 1968. Thus, on January 26, 1968, a
short financial statement showed that the Company's cash
position was $11,707.95 cash on hand with a total of
$24,110.45 of accounts payable to be paid in the next 14
days and this did not include payroll. So far as the first
installment to the bank on the building loan was
concerned, as mentioned above, Shaffer had to ask for an
interested in what Perk claims he told Shaffer Accordingly, I credit, for
the most part , Perk 's version of the conversation.
"From the testimony of Harvey Green, George Vaughn, and McVay
"Respondent's books are set upon a fiscal basis as opposed to a calendar
year basis
PEERLESS BREAD MACHINERY CORP. 355
extention of 30 days from January 30, 1968, in order to
meet this amount. Again at the end of that 30 day period
a further extention was requested and finally after 15
more clays rather than risk a possible altercation with the
bank, the money was paid as directed by the Board of
Directors.
Both Shaffer and McVay testified, without
contradiction, that the financial situation regardless of its
cause was responsible for the layoffs of the men. It was
the financial report of the middle of November which
started Shaffer, with the assistance of McVay, to make a
study and check time records to see where the Respondent
could cut down on the labor force. The hours from the
paint shop where Vaughn and the two Greens worked
seemed to be excessive. There they started to investigate
George Vaughn and Harvey and Donnie Green worked
in the paint shop. This shop prepared the machinery
manufactured by the Respondent for shipment. There the
machinery was painted and crated. Vaughn and Harvey
Green were painters and Donnie Green was a crater. The
move from the old plant to the new plant which had both
a shipping and receiving door and had about 65 percent
more useable floor work area, began in approximately
July of 1967 and was completed during the first week in
September of that year When the move into the new
building was completed, not all of the employees who
formally had been production employees were engaged in
production work. Three of the employees were engaged in
putting away stock, building shelves and doing odd jobs so
that the new plant could go into full swing. Much stock
had to be put away and many shelves had to be built.
Thus these jobs which were incidental to the move existed
until November 10, 1967. Around that time they were at
least 80 percent completed.
At that time, therefore, the three men, Vaughn and the
two Greens, who were assigned to the work of building
the shelves and putting the stock away, were returned to
their normal production work of crating and painting.
Although these three employees returned to their old jobs,
the Respondent could not keep them busy on the jobs they
had previously performed in the old plant. This was
because by moving to the new plant the production and
other processes gained new efficiency. They no longer had
the problem of shipping and receiving. In the old plant
they had but one door to ship out and to receive in.
Therefore, at the time when shipment had to be made and
merchandise was to be received, a tie up would ensue in
the old plant. This necessitated the moving of the crating
operation out of the way in order to receive the new
material and not tie up trucks which were making
deliveries. In this respect, all of the employees in the
painting and crating operations were busy moving
equipment and putting away material received. This was
added to their ordinary painting and crating duties.
However, when the work of moving was complete, and
shipping and receiving was done in the new plant, it was
demonstrated that the shipping and receiving could be
performed in less than half the time consumed in the old
plant and with the utilization of many less employee
hours, According to Shaffer's uncontradicted testimony, in
the old plant Respondent received a shipment on the
average of at least once a week and it look three or four
persons at least a day and a half, or longer, to put it
away. In the new plant, on the other hand, one man does
the same job in one half the time that it took previously.
In addition to this, the operation is more efficient because
in the new plant, which had strong concrete floors,
Respondent uses a forklift truck for the movement of
equipment and material. In the old plant it was unable to
do so because that plant had rotten, wooden floors.
In fact, several weeks before the receipt of the draft of
the financial report covering the period ending October
31, 1967, Shaffer had observed the idleness of Vaughn,
Harvey Green and Donnie Green. Therefore, according to
Shaffer, these three men came under Shaffer's immediate
consideration once his decision to cut back on personnel
was made. Additionally, Shaffer made a detailed study of
the Company's machine cost record. The study revealed
that the man-hours for the painting and crating operations
were "beyond reason." Thus it demonstrated that 45
machines were shipped during the year 1967 and that each
machine consumed an average of 90 hours in the paint
and crating operation It was during this period that was
covered by this study that the two Greens and Vaughn
had worked in the paint department along with Bill
Sergent, the most active union adherent.
To prove the point, sometime after the December 26
layoff, Shaffer conducted a second study of the average
paint time for each piece of machinery that went through
the painting and crating department. This study covered
the period from December 26, 1967, to April 25, 1968,
using the same procedures as used 'in the 1967 study.
Shaffer determined that 25 machines which were similar
in nature to those shipped before the layoffs consumed an
average of only 45 paint and crate man hours, a reduction
of approximately 50 percent.
Shaffer further testified that neither the two Greens nor
Vaughn possessed sufficient skill to warrant transferring
them to other departments which would have enabled
them to work in production elsewhere. It is significant to
note that none of these three employees has been replaced
up to the date of the hearing and that the Respondent has
been able to get along efficiently without the use of
replacements. This would seem to bear out the import of
Shaffer's testimony. It should also be noted that Shaffer's
testimony was supported by that of McVay. With regard
to Vaughn particularly, Shaffer testified that he did not
consider him a particularly good employee. Shaffer based
this conclusion on the fact that when Shaffer would go
through the shop Vaughn would be standing around and
talking Many times Shaffer saw him away from the job
and even when he did have work to do he was bothering
other people Additionally, Vaughn's attendance record
was very poor.
With regard to Donnie Green, Shaffer felt that he was
an average employee. He also had a very poor attendance
record in addition to which his tardiness record was very
bad.
With regard to Harvey Green, Shaffer observed him on
numberous occasions standing away from his job, talking
to other employees, although he had no work to perform
with them. Moreover, Shaffer had received a report from
Leonard Gruebmeyer, Green's immediate supervisor that
Harvey Green was "snooping around" in the stock area
where he did not belong. This is a restricted area where
stock and parts are stored and only authorized personnel
are permitted. As a matter of fact, Green had been
warned about this. Moreover, Harvey Green's attendance
record was bad, in fact, so bad that even if he were to
need someone in the department Shaffer would not
consider reemploying Harvey Nor for the same reason
would he consider reemploying George Vaughn or Donnie
Green.
The records show that while there were other employees
who had bad attendance records, in each case there was a
good and excusable reason. It would unnecessarily
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lengthen this decision to set them forth here but in each
individual case there was a reason why Respondent found
the employee concerned to be valuable despite his
attendance record. Thus, for example, some of the men
were part time farmers and had to be off in order to
attend their farms. Others were ill chronically and had to
have time off in order to recover or to be treated.
However, in no case , was an employee of such mediocre
caliber as the two Greens and Vaughn kept on after the
December 26 layoff.
With regard to the other employees who were laid off,
Shaffer testified DeBrugge was in a probationary period
at the time of his discharge. He had been hired around the
first week in December so that at the time he was
considered for layoff, he was still in a 30 day probationary
period. At the time DeBrugge started to work for the
Respondent, Shaffer began to receive calls from various
people around town to whom DeBrugge owed money. He
was not paying his obligations and they wanted to talk to
Shaffer to see if the Respondent could get DeBrugge to
pay something on account. Respondent's representatives
spoke to DeBrugge several times and told him that he
should start making payments on his commitments or, at
least, talk to people and see what could be worked out.
This continued on almost a daily basis. The next thing
that Shaffer and McVay discovered was that DeBrugge
had borrowed money and owed money to various
employees in the machine shop This was causing
problems because DeBrugge did not pay them back when
he promised. This, in turn, created hard feelings between
the men with whom DeBrugge was working. Additionally,
DeBrugge's attendance record was extremely bad for a
new employee. DeBrugge in fact had been warned about
his absenteeism several times before his layoff. DeBrugge
worked in the machine shop where they needed good
workers and yet it was plain to see that during his
probationary period he would not work out because of all
the aforementioned factors. It should be noted that in
connection with DeBrugge, as stated above, he did not
sign a union card or participate in union activities in any
way whatsoever. In fact there is no showing in the record
that he was at all interested in the Union.
Another employee in the machine shop who was laid
off was Frank Ewing, a nephew of McVay. Ewing was
also in his probationary period but he simply could not
get his work out. He could not keep up with the other
employees who were doing the same type of work. He
showed no interest in this work. He was given instructions
on how to do his work upon several occasions by McVay,
the superintendent. McVay complained to Shaffer about
the quality of Ewing's -work as being very sloppy; this
despite the fact that Ewing was a relative of McVay Thus
Ewing was chosen for layoff
The remaining employee who was laid off was
employee John Brooks. He was assigned to the grinding
department. The complaint that McVay had about Brooks
was that he simply did not do his work either Shaffer
talked to McVay about Brooks and he also talked to
Brooks immediate supervisor, Ira Fair. Nor was Ewing's
attendance record very good as a probationary employee.
It should have been a lot better. He had been instructed
many times about this and about how his work should be
done, but had shown little interest.
Thus it was, that after discussion with various
supervisors, including McVay, Fair and Gruebmeyer,
Shaffer reached a decision as to these six employees. This
decision was reached in the first week of December at a
meeting with McVay. Shaffer, according to his testimony,
wanted to lay off the six immediately but McVay pointed
out that Christmas was coming in about 3 weeks. McVay
felt that it would be a bad thing to lay employees off at
that time. Such a layoff would reflect on the Company. It
would just not be right to lay these men off before
Christmas. Accordingly, Shaffer considered what McVay
advised him to do and agreed with McVay that he would
wait until the 26th of December to lay the men off.
It should be noted that neither Vaughn nor Harvey
Green who were present at the hearing, or any of the
other employees who were discharged, testified in rebuttal
to any of all this testimony given by Shaffer and McVay.
Thus, their testimony remains totally uncontroverted in
any way upon the record."
IV. CONCLUDING FINDINGS AS TO THE LAYOFFS
Counsel for the General Counsel contends that the
knowledge which Shaffer gained through his conversation
with Union Secretary Perk that Vaughn and the two
Greens had attended the Union's Christmas party,
together with the timing of the layoffs, the next business
day after gaining such knowledge, plus the very apparent
opposition to the Union of Superintendent McVay are
sufficient to establish the Respondent's antiunion animus,
and that the layoffs were necessarily motivated by this
animus and were therefore discriminatory within the
meaning of the Act. He further contends that the
Respondent's proffered reasons for the layoffs were
merely afterthoughts, not told to the alleged
discriminatees at the time of the layoffs, and, therefore,
pretextual in nature; and do not represent the true,
discriminatory motivating cause for the layoffs.
The Respondent, on the other hand, argues that the
layoffs were the result of solely economic considerations
and that the decision to layoff the employees involved was
reached long before the Respondent had any cause to
suspect there was any union activity in its plant.
I find merit in the Respondent's contentions.
Although under most circumstances the testimony of
McVay and Shaffer to the effect that between them they
decided to effectuate the post-Christmas layoff during the
first week in December would be suspect inasmuch as
such testimony could hardly be refuted or substantiated
beyond the words of the individual witnesses, and because
such testimony could not be cross checked by investigation
on the part of the opposition, I nevertheless here credit it
because other, more objective, evidence supports the
testimony in question. Thus, there is in evidence
substantial documentary proof that the Respondent was,
indeed, in a precarious financial situation, at least insofar
as its cash balance was concerned. The General Counsel
argues that this situation was brought on largely by a
single event, the move of the Respondent from its old to
its new plant and the cost of moving and of the erection
of the new building. This may be so. However, this does
not mean that the Respondent could not have been in a
"To bolster Shaffer's testimony as to his decision not to lay the men off
until after Christmas , the Respondent placed Mrs. Shaffer on the stand
She testified that her husband came home one noon for lunch in a rather
moody condition and she , quite contrary to custom, asked him what was
wrong at the plant He told her that they were going to have to lay some
men off after Christmas Although I consider such testimony to be self
serving in the sense that there is no way in which it can be controverted, I
nevertheless credit this particular testimony because of the fact that I was
impressed by the apparent sincerity of Mrs Shaffer and because all of the
Shaffer-McVay testimony regarding the reason for the layoffs and the
selection for layoff remained uncontroverted
PEERLESS BREAD MACHINERY CORP. 357
condition temporarily in which it found it necessary to
retrench.
Additionally, as noted above, none of the testimony of
both McVay and Shaffer regarding the inefficiency and
poor attendance records of the employees involved was
disputed in any way by rebuttal on the part of witnesses
for the General Counsel who were present during the
hearing and heard the testimony of McVay and Shaffer to
the effect that the employees involved were not desirable
employees. Thus, although Shaffer testified that Harvey
Green had too often been seen in the supply area where he
had no business to be, Green, who was present, was not
called in rebuttal to refute this testimony. Thus most of
the testimony which could have been controverted by
witnesses was not. This, in and of itself, lends credence to
the balance. Moreover, with regard to the timing of the
decision to discharge the six employees I note specifically
the testimony of Mrs. Shaffer. She did not hesitate to
admit, on cross-examination, that part of the conversation
between her husband and Perk was not overheard by her.
She readily admitted that the names of Vaughn and the
Greens could have been mentioned by Perk to Mr.
Shaffer. Accordingly, and from my observation of Mrs.
Shaffer, I am convinced that there is truth in her
testimony to the effect that her husband came home
sometime early in December and told her, upon her
question, that some of the employees would have to be
laid off but that such layoffs would be deferred until after
Christmas.
Thus, that Respondent had good lawful reason to select
these employees for layoff is unrefuted on the record.
Also, the fact that the decision to lay them off occurred
before Respondent had knowledge of any union activity in
the plant, I find is established. But, even assuming that
the Respondent's testimony in regard to the date of the
decision to layoff employees is not accepted, there is other
reason to find that the Respondent's motivation was not
unlawful. Thus, accepting Perks interpretation of the
pre-Christmas conversation between Shaffer and Perk
completely as Perk told it, the most active union adherent,
Billy Sergent, was also disclosed as having attended the
Christmas party. If anything, McVay's anger against
Sergent was greater than any feeling he might have had
toward the other employees laid off. This would be so
because, admittedly, there was a difference in relationship
between McVay and Sergent than between McVay and
the other employees. Indeed, McVay admitted on the
stand that he was disappointed with Sergent and had felt
that Sergent was figuratively stabbing him in the back
after all that McVay had done for Sergent. This, it would
seem to me, would indicate that if anybody would have
been discriminatorily selected for layoff it would have
been Billy Sergent, who, although not heretofore related,
solicited most of the authorization cards that were
required by the Union. This factor, together with the fact
that neither DeBrugge or Ewing had participated in union
activities in any way and had not even signed cards, and
with the additional factor that Ewing was a nephew of
McVay's, tend to show that the selection was not made on
a discriminatory basis. While it is I rue that the timing
may have led to some suspicion that the layoffs were
discriminatorily motivated inasmuch as they occurred on
the next business day following the gaining of knowledge
by Shaffer that Vaughn and the Greens had attended the
Union Christmas party, this suspicion is not sufficient to
establish unlawful motivation in the light of all the other
factors heretofore mentioned.
Accordingly, I find and conclude that the Respondent's
financial position at the time of the layoffs was not
impressive. In the circumstances, cutting the work force to
achieve overhead savings in reduced salaries appears to
have been an appropriate form of economic retrenchment.
Then, in view of the fact that the, most active union
adherent was not laid off and that two of the individuals
laid off took no part whatsoever in any union activities,
together with the fact that the Respondent had good
reason to select each of the individuals that it did select
for layoff, leads me to find and conclude further that the
persons selected for layoff were not discriminated against
in any manner within the meaning of the Act.
Accordingly, I shall recommend that that portion of the
complaint which alleges that the Respondent
discriminatorily laid off six employees be dismissed
D. The Alleged Unlawful Refusal to Bargain
1. The appropriate unit
It is conceded, and I find, that all production and
maintenance employees at the Respondent's Sidney, Ohio
plant, excluding all office clerical employees, professional
employees, guards and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. The majority issue
The General Counsel introduced into evidence 20 signed
union authorization cards. These cards read as follows:
YES, I WANT THE IAM
I, the undersigned, an employee of (Company)
hereby authorize the International Association of
Machinists and Aerospace Workers (TAM) to act as
my collective bargaining agent with the company for
wages, hours and working conditions. It is my
understanding that I will be invited to join the IAM.
NAME (print)
ADDRESS (print)
DATE
CITY
DEPT
SHIFT
PHONE.
Classification
SIGN HERE X
NOTE: This authorization to be SIGNED and
DATED in EMPLOYEES OWN HANDWRITING.
YOUR RIGHT TO SIGN THIS CARD IS
PROTECTED BY FEDERAL LAW.
I find and conclude that these cards, on their face, spell
out clear and unambiguous language and authorization for
the Union to represent the signer for collective bargaining.
However, for reasons hereinafter set forth, I find that not
all of the cards can be relied upon as a basis for
establishing the Union's alleged majority
Counsel for the General Counsel and the Respondent
agree that there were at least 29 employees in the unit as
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the date of the demand which was made via telephone
call from Union Business Agent Daniel Berryhill to
Respondent's President Roscoe Stump on the night of
December 26, 1967, at about 6 30 p m In addition to the
foregoing, the General Counsel contends that the six
dischargees involved herein, namely, John Brooks,
Michael DeBrugge, Frank Ewing, Donald Green, Harvey
Green and George Vaughn should be included in the unit.
I do not agree
Inasmuch as I have already found that these individuals
were lawfully laid off in the afternoon of December 26,
1967, and, inasmuch as the request for recognition and
bargaining was not made by Berryhill upon Stump until
some hours later, I find and conclude that these
individuals cannot be included in the appropriate unit as
of the time of demand, or thereafter I further find and
conclude that cards signed by any of these individuals
cannot be used in determining majority
The inclusion of Tuley Maxwell in the unit is also in
dispute. Maxwell was hired by Respondent around
November 28 and worked in the welding department. On
December 26, 1967, Maxwell injured his hand while
working on his automobile and as a result was unable to
work. The following day, December 27, his sister, in his
presence, telephoned McVay and told the latter that her
brother would be off from work for a couple of days
because of the injury. Sometime later in the week,
Maxwell still unable to work, was down town in a tavern
and was told that he had been laid off. He thereupon
telephoned McVay on Friday, December 29, to find out if
there was any truth to the rumor During the telephone
discussion McVay assured him that he had not been laid
off. He then invited Maxwell to visit him at the plant
where they could have further discussion. Shortly
thereafter Maxwell visited McVay at the plant. McVay
then admitted that he did not lay off Maxwell but claimed
that he thought Maxwell had quit his employment.
Maxwell thereupon reminded McVay that McVay had
been advised of Maxwell's injuries which prevented him
from performing as a welder. McVay neither admitted nor
denied the telephone conversation with Maxwell's sister
but told Maxwell that he could not take him back until
this "union was straightened out."' 4
From the foregoing it can readily be seen that at least
as late as the evening of December 26, 1967, at 6 30
thereof, the time of the demand upon the Respondent for
recognition and bargaining, the Respondent had not as yet
made up its mind that Maxwell was no longer an
employee. Accordingly, therefore, I include Maxwell in
the appropriate unit and shall include his card as one of
those to be counted in determining whether the Union
enjoyed majority status at the time of the demand.
Another employee whose inclusion or exclusion in the
unit is in contest is Philip Steenrod. The only two items of
evidence with regard to this individual are that his name
was not contained on the list given to the General Counsel
of the Respondent's employees during the investigation of
this case. His name, however, did appear on the so-called
"Excelsior Underwear" list used at the time of the
election The only testimony offered by either party with
regard to Steenrod was that of Shaffer, which was
uncontroverted, to the effect that Steenrod was being
carried on the Respondent's payroll but was on sick leave.
"From the credited testimony of Maxwell McVay in testifying neither
admitted nor denied nor, in fact , touched upon this subject Accordingly,
because Maxwell ' s testimony went uncontroverted , I credit Maxwell fully
in this regard
Inasmuch as Steenrod's name appeared on the Excelsior
list and because the only testimony with regard to him
was uncontroverted to the effect that he was on
Respondent's payroll but on sick leave at the time of the
election, and had been for sometime before that, I find
and conclude that Steenrod should be included in the unit
I therefore include him."
Thus, the unit consists of the 29 agreed employees plus
Tuley Maxwell and Philip Stenerod This constitutes a
total of 31 employees As stated above, the Union
obtained 20 signed authorization cards as of the date of
the demand Eliminating from these cards the cards of
George Vaughn, Harvey Green, Donnie Green and John
Brooks whom I have already eliminated from the unit on
the basis that they were laid off prior to the demand, the
Union is left with 16 signed authorization cards out of a
total of 31 employees giving the Union a bare majority of
16 out of 31.
However, the Respondent contends that some of the 16
remaining cards were solicited on the basis of fraudulent
representations made by the solicitors to the card signers
and that, therefore, they cannot be used as a basis for
establishing the Union's majority. These contested cards
will be treated in order
Donald Fair. Fair's card was solicited by James
McClellan who testified that on December 18 or 19, he
met with Fair in the vicinity of the "Jig" and asked Fair
to sign a card. Fair is the son of Supervisor Ira Fair Fair
agreed to sign provided that he was not the first one.
McClellan assured him that he would not be the first one
to sign since McClellan had already done so. Thereupon
Fair took it and returned the completed card to
McClellan. On cross-examination McClellan remained
firm that he did not say anything to Fair with regard to
percentages of signatures needed to get an election
Fair testified that McClellan told him that all he
needed was 16 signatures in order to have an election and
that was all that was said and that he, Fair then signed
the card and gave it back. Pursuant to a leading question,
put to him by Respondent's counsel, (the question was
asked whether the card was "dust" to get an election),
Fair answered, "Just to get an election."
Fair, upon cross-examination, stated that he did not
read the card; that he believed that the signature on the
card was his, that he had a high school education and was
perfectly capable of reading the card; and that he had
talked to no one about the card including Respondent's
counsel or anybody from Respondent's side of the case.
On the basis of my observation of the witness and on the
basis of Fair's answer to the question whether "the card
was just to have an election," to which he answered in
haec verba, I find that Fair's testimony is not credible
especially since he stated that he did not read the card and
merely signed it because he was asked to sign it, and that
he often signed things he was just asked to sign.
Additionally, his denial that he never spoke to anyone
about this matter is not believable inasmuch as he was
called by Respondent
Accordingly I accept Fair's card as a card to be
counted to resolve the majority question
"The Respondent would further argue that Frank Ewing, one of the
alleged discrimmatees has a reasonable chance and expectancy of being
recalled should therefore be included in the unit I find that the testimony
with regard to the possible rehiring or reinstatement of Ewing is so tenuous
as not to establish that Ewing has a reasonable chance of reemployment I
therefore do not include him in the unit
PEERLESS BREAD MACHINERY CORP.
Robert Stephens. Stephens card was solicited by Bill
Sergent. Apparently Stephens is unable to read very well.
According to Sergent, he asked Stephens how the latter
felt about the Union and Stephens answered that it would
be the best thing for Peerless. Stephens then related that
for many years he had been working at Peerless and
making very small wages. Then according to Sergent
Stephens asked Sergent for a card and Sergent gave him
one. Sergent asked Stephens whether the latter understood
the card and Stephens asked Sergent to read the card to
him. Sergent did so reading the card fully. Stephens then
signed the card, handing it back to Sergent.
Stephens testified that Sergent came to him at the
water fountain and asked him if he wanted to sign a union
card. Sergent told Stephens that if "we get 50 or 5I
percent of the cards signed there would be a vote; that the
cards didn't mean nothing that there would be a vote and
see if the Union would come in." In answer to the
General Counsel's leading question whether the only
reason Stephens signed the card was to get a vote,
Stephens answered "Yes." Also upon a leading question
from the General Counsel Stephens testified that Sergent
told him that if it came to a vote he could still vote either
way. He said Sergent told him that there would be a
secret ballot and nobody would know how he voted.
I have heretofore refused to credit certain portions of
the testimony of Bill Sergent. I observed that Stephens
however, appeared to be a most reliable witness on the
witness stand. I credit his version of the solicitation of the
cards While he may not have been able to read or write
he appeared to be intelligent and knew what he was
talking about.' 6
The Board has recently stated in affirming its original
views on the circumstances under which it will find fraud
in the solicitation of union cards:'7
Thus the fact that employees are told in the course of
solicitation that an election is contemplated, or that a
purpose of the card is to make an election possible,
provides in our view insufficient basis in itself for
vitiating unambiguously worded authorization cards on
the theory of misrepresentation. A different situation is
presented, of course, where union organizers solicit
cards on the explicit or indirectly expressed
representation that they would use such cards only for
an election and subsequently seek to use them for a
different purpose; i.e., to establish the Union's majority
independently. In such a situation, the Board invalidates
the cards for majority computation, because the nature
of the representation is such as to induce a conditional
delivery for a restricted purpose, and there is apparent
fraud when the restriction is exceeded.
The Board in a footnote to, this quotation stated.
The foregoing does not of course imply that a finding of
misrepresentation is confined to situations where
employees are expressly told in haec verba that the
"Another reason for discrediting Sergent in this regard is that during all
of his testimony regarding the solicitation of cards he insisted that he never
mentioned an election or a vote to any of the persons whom he solicited.
He was specifically contradicted not only by Stephens however but also by
Hobart Green , Ruel Woods and McClellan Under these circumstances
Sergent 's obvious enthusiasm for the Union together with the
contravention of his testimony by other General Counsel witnesses, leads
me to believe that Sergent ' s testimony is unreliable as to the solicitation of
cards.
"Levi Strauss & Co., 172 NLRB No 57
359
"sole" or "only" purpose of the cards is to obtain an
election. The Board has never suggested such a
mechanistic application of the foregoing principles, as
some have contended. The Board looks to substance
rather than form. It is not the use or nonuse of certain
key or "magic" words that is controlling, but whether
or not the totality of circumstances surrounding the
card solicitation is such as to add up to an assurance to
the card signer that his card will be used for no purpose
other than to help get an election."
Applying these principles to the manner in which I have
above found that Stephens' card was solicited by Sergent,
I find and conclude that there was at least an indirectly
expressed representation that the card would be used only
for an election ("the cards didn't mean nothing") and that
it was subsequently sought to be used for a different
purpose, that is, to establish the Union's majority
independently. I therefore find that there was
misrepresentation in the solicitation and will not count
Stephens' card in deciding whether the Union was
designated by a majority of the Respondent's employees.
Leamon Spradlin. Stephens solicited Leamon Spradlin's
card. Spradlin did not remember what Stephens had told
him when he asked Spradlin to sign the card Stephens, on
the other hand, testified that he told Spradlin what
Sergent had told him, namely, that the cards didn't mean
anything; all the cards were for were to get a vote.
Under these circumstances and for the same reason that
I found Stephens' card to be incompetent to establish the
Union's alleged majority, I find and conclude that
Spradlin's card cannot be used for such purpose.
Duane Studevant. Studevant testified that his card was
solicited by Morris Hickerson. At one point in his
examination, Studevant testified that Hickerson asked him
to sign if he would and if he was interested in having the
Union come in. Then, Studevant testified, Hickerson told
him they had to have the authorization cards because
"they would have to bring it to a vote or something." But
following this Studevant admitted he could not remember
the exact words that Hickerson used. Studevant also
testified he read the card after Hickerson gave it to him,
filled it out himself and signed it himself. On further
direct examination Studevant testified that Hickerson
explained to him that they were trying to get the Union
in, that the card did not mean anything except that "they
have to have so many cards before there could be a vote."
Again Studevant admitted that he 'did not actually
remember the term "vote." Hickerson did not testify
Although there was some reference in Hickerson's
representations to Studevant to the effect that there was
going to be an election, I find that the testimony of
Studevant was rather vague and uncertain and in view of
the fact that he admitted that he read, filled out and
signed the unambiguously worded card, I find and
conclude that Studevant did not sign the card pursuant to
any misrepresentation but rather because he wanted union
representation Accordingly I find and conclude that
Studevant's card should be counted for majority
computation."
"Supra, fn. 7.
"The Respondent also complains that the cards of Hobart Green and
Omer Brown should not be counted , in the case of Green because of
misrepresentation , and in the case of Brown because the card was not
properly authenticated . However, I find that Brown's card was properly
authenticated and that in the case of Hobart Green the only testimony of
Green that would show that there was some reference to a vote was when
Sergent solicited his card he said words to the effect that "this was not a
vote or nothing " I do not find this sufficient to invalidate the cards
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, I find and conclude that the cards of Robert
Stephens and Leamon Spradlin cannot be used for
majority computation. This being so the Union's showing
of 16 cards is reduced to 14. Inasmuch as I have
theretofore found that there were 31 employees in the unit
as of the date of the demand, I further find and conclude,
on the basis of all of the foregoing, that the Union did not
enjoy majority representation at the time of its demand or
at any time thereafter
Accordingly, I find and conclude, and it follows, that
the Respondent was not under obligation to bargain with
the Union on the date of the demand or at any time
thereafter. In other words, I find and conclude that the
Union had never obtained majority status and that
therefore the Respondent was under no compulsion to
bargain with it.20
V. THE OBJECTIONS
As detailed earlier in this Decision, the Union's
objection No. 1 to the conduct affecting the results of the
election, is, in essence, the same as the allegations of
interference, coercion and restraint set forth in the
complaints herein. These allegations I have heretofore
found to be meritorious insofar as Supervisor McVay's
activities are concerned. I have heretofore found that
McVay threatened and interrogated employees on
December 26, 28, and 29, 1967. The Board has held that
similar unfair labor practices which were violative of
Section 8(a)(1) of the Act are, a fortiori, conduct which
interferes with the exercise of a free and untrammelled
choice in an election." Accordingly, upon these findings
alone I would recommend that the election be set aside.
However, I note that the last unfair labor practice
which I find, namely, the conversation between McVay
and Maxwell in which McVay asked Maxwell if the latter
had signed a union card, occurred on Friday, December
29, 1967. On this same day, Friday, December 29, 1967,
the Union filed its petition There were no further
Respondent infractions from that date until after the
holding of the election. The above incidents are the only
employer conduct found by the undersigned to have
occurred. And the only one of these that could have
occurred after the filing of the petition was the
interrogation of Maxwell on the 29th which could have
occurred either before or after the exact time of the filing
of the petition. The election was not held until February
27, 1968, approximately 2 full months after the last of
these incidents. Under all of these circumstances, I find
that the three incidents here involved, occurring more than
2 months before the election, the last one occurring on the
date of the petition and consisting of a simple
interrogation are too isolated in point of time and too
insubstantial to warrant setting aside, the election.
Therefore, I recommend that the objections be overruled
and that the Board find that the Union has failed to
secure a majority of the valid votes cast. I further
recommend that the results of the election should be
certified. 22
"J P Stevens and Co, Inc, 157 NLRB 869, 877 For the foregoing
reasons I do not find it necessary to discuss the details of the , Union's
demand for recognition and, the reasons for Respondent ' s refusal to
recognize and bargain with the Union
"Playskool Manufacturing Company , 140 NLRB 1417
"See West Texas Equipment Company, 142 NLRB 1358
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE ,
The Respondent's activities found to be unfair labor
practices in section III, above, occurring in connection
with the operations of Respondent described in section I,
above, have a close, intimate and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VII. THE REMEDY
Having found, as set forth above, that Respondent has
engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action, set forth, below, designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Peerless Bread Machinery Corporation, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining and coercing its
employees in the exercise of rights guaranteed by Section
7 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
4. The Respondent has not discriminatorily discharged
any of its employees within the meaning of Section 8(a)(3)
of the Act
5 By refusing on December 28, 1968 and thereafter, to
bargain collectively with the aforesaid labor organization,
the Respondent has not engaged in and is not engaging in
unfair labor practices, within the meaning of Section
8(a)(5) and (1) of the Act.
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and pursuant to Section 10(c) of the
Act, it is recommended that the Respondent, Peerless
Bread Machinery Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees; threatening
employees with loss of employment if they engage in
union activities, and threatening employees that they are
on a blacklist for engaging in union activities.
(b) In any like or similar manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining and mutual aid or protection, and to refrain
from any and all such activities except to the extent
provided in Section 8(a)(3) of the Act.
2 Take the following affirmative action which, I find,
will effectuate the policies of the Act.
(a) Post at its plant at Sidney, Ohio, copies of the
notice attached hereto and marked "Appendix."23 Copies
"In the event that this Recommended Order is adopted by the Board the
words "the Decision and Order" shall be substituted for the words "the
PEERLESS BREAD MACHINERY CORP.
of said notice, on forms to be provided by the Regional
Director for Region 8, shall, after being duly signed, be
posted by Respondent 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 Respondent to insure that such notices are
not altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of service of this
Recommended Order, what steps Respondent has taken to
comply herewith.14
IT IS ALSO RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
IT IS FURTHER RECOMMENDED that the results of the
election held on February 27, 1968, be certified.
Recommended Order of a Trial Examiner" in the notice . In the additional
event that the Board's Order is enforced by a decree of the United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "the
Decision and Order "
"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 of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
361
WE WILL NOT coercively interrogate our employees
concerning their union activities or sympathies.
WE WILL NOT threaten our employees with loss of
employment because of their activities in or on behalf
of Lodge No. 2167 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization.
WE WILL NOT threaten to place our employees on a
"blacklist" if they should engage in activities on behalf
of the above-named Union or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form labor
organizations, to join or assist the above-named Union
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection
or to refrain from any and all such activities except to
the extent provided in Section 8(a)(3) of the Act.
PEERLESS BREAD
MACHINERY
CORPORATION
(Employer)
Dated By
(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, 1695 Federal
Building, 1240 East 9th Street, Cleveland, Ohio 44199,
Telephone 522-3738.