Sinko Manufacturing and Tool Co.

National Labor Relations Board - Board Decisions

Oct 28, 1964

149 N.L.R.B. 201 (N.L.R.B. 1964)

SINKO MANUFACTURING AND TOOL COMPANY 201
tive days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 12, in writing, within 20 days
of the receipt of this Decision, what steps it has taken to comply herewith."
It is further recommended that so much of the complaint as alleges that the
Respondent maintained in effect and enforced a rule which prevents employees for
engaging in lawful union activity on Respondent's property during the employees'
nonworking time be dismissed.
u In the event that this Decision be 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 the 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, we hereby notify our employees that:
WE WILL NOT encourage or discourage membership in Teamsters Union
Local 290, an affiliate of the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or in any other labor organi-
zation of our employees, by discharging or in any other manner discriminat-
ing against employees for concertedly seeking to change union officers or
representatives or otherwise engaging in concerted union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed in Section 7
of the Act.
WE WILL offer Charles Paglianite immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights or privileges, and make him whole for any loss he may have
suffered by reason of our discrimination against him.
AERODEX, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Resident Office, Room
826, Federal Office Building, 51 SW. First Avenue, Miami, Florida, Telephone No.
350-5391, if they have any question concerning this notice or compliance with its
provisions.
Sinko Manufacturing and Tool Company and District 50, United
Mine Workers of America and Plastic Workers Union Local 18,
I.U.D.T.W., AFL-CIO, Party to the Contract
Sinko Manufacturing and Tool Company and Eugene Payan.
Cases Nos. 13-CA-4433 and 13-CA-4433-2. October 28, 1964
DECISION AND ORDER
On July 16, 1963, Trial Examiner Stanley Gilbert issued his In-
termediate Report in the above-entitled proceeding, finding that the
149 NLRB No. 21.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint, and
recommended dismissal of the complaint as to them. Thereafter, the
Respondent and Plastic Workers Union Local 18, jointly, and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Fanning, Brown,
and Jenkins].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only to the extent they are consistent
with this Decision and Order.
1. We adopt the Trial Examiner's conclusion that on September 7
and 8, 1961, Respondent's permission to representatives of Local 18
to come on its premises to solicit union memberships and conduct
union business was not independently unlawful assistance or support
to Local 18, in view of implied permission later given to District 50
adherents to solicit union memberships on its premises.
2. While the matter is not free from doubt, we find that Respond-
ent's posting of a no-solicitation rule on the day following District 50
adherents' solicitation of union memberships during working hours
was not a per se violation of the Act, and that such posting under the
circumstances was not proved to have been for the purpose of unlaw-
fully assisting Local 18. We observe that no evidence was adduced
to show that it was later enforced in any way.
3. We disagree with the Trial Examiner's findings that the Re-
spondent did not violate Section 8(a) (1), (2), and (3) of the Act by
recognizing, and executing a union-security agreement with, Local 18.
We find, in short, that Dewey Carson was a supervisor or agent of
the Respondent at the time he solicited a majority of authorization
cards for Local 18. Thus, at the time the Respondent accorded rec-
ognition to Local 18 and entered into a union-security agreement with
it, Local 18 did not represent an uncoerced majority of employees.
As to the status of Carson, the record shows both that employees
were informed that he was boss and they were required to follow his
orders, and that Carson in fact responsibly directed them. Thus, on
August 1, 1961, the first day on the job, Norman Patrick, a jeep
SINKO MANUFACTURING AND TOOL COMPANY 203
driver in the warehouse, was told by Ingratta that Carson was the
assistant foreman, and that he should take orders from him and do
whatever Carson told him to do. Similarly, employee Robert E.
Bartley was told by Ingratta, when he asked Ingratta about his
work, not to come to him but instead talk to Carson and do what he
said, that Carson was the boss and Ingratta's assistant. Also, the
first day of his employment in July 1961 as a jeep driver in the ware-
house, John Looney was introduced to Carson by Ingratta as his
right-hand man, in the presence of all the jeep drivers on the day
shift. Moreover, at one point, Ingratta berated Carson in the pres-
ence of employees for "not getting on" the men enough-in our opin-
ion a graphic demonstration to employees of Carson's authority over
them, and a plain indication of Carson's actual (and not just ostensi-
ble) responsibility for performance of the employees.' Clearly, the
Respondent charged Carson with the responsibility of seeing that the
employees under him performed their jobs properly.2
It is also clear that Carson did responsibly direct the employees in
all phases of their work-the kind they were to perform, when to
perform it, and where to perform it. For example, Carson told Nor-
man Patrick when raw material should be hauled to the presses, and
the amount and grade thereof, and Patrick would stop whatever
work he was doing and follow Carson's orders. Also, Carson told
Patrick what dye to use in dyeing molding powder, and would
transfer him to work in the automotive department or reassign him
to work in the carton section, etc. In like manner, Carson directed
Robert E. Bartley as to what shipments to unload and not unload
in the shipping and receiving department. Carson also kept him
busy to supply the wants of the grinder in the warehouse. These are
only illustrative of Carson's direction. Carson's supervisory status
vis-a-vis the warehouse employees is further evidenced by Carson's
changing the lunch hours of employees, his granting of sick leave to
an employee, his effective recommendation against a, transfer of an em-
ployee under his direction, and his calling a meeting of jeep drivers.
In addition to the above, there are other factors establishing that
the Respondent held out Carson to employees as a supervisor. Thus,
apart from his introduction to employees as their supervisor, Carson
signed several notices as "supervision" and posted these notices on
The record requires the finding that Ingratta's criticism of Carson on this occasion
concerned Carson's general direction of the employees under hun , and was not limited, as
the Trial Examiner believed, to "safety" matters
2 The designation of Carson by code 6 on this payroll sheet lends additional weight to
our finding that Carson was endowed with supervisory authority. That such code designa-
tion was changed to 10 beginning with the week of October 20, 1961, belies the Respond-
ent's assertion that the code designation was of no significance . The record shows that,
with few exceptions, such code was used to show supervisory authority.
Des Moines Foods, Inc., 129 NLRB 890, 891, footnote 1, enfd. 296 F. 2d 285 (C.A. 8)
(1961).
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the company bulletin board without objection, and distributed pay-
roll checks, a function of supervisors. Finally, Carson also told em-
ployees when they were to work overtime. The record is clear that
under Downs, Carson had the authority to select who was to work
overtime, and even assuming that, under Ingratta, Carson merely re-
layed Ingratta's decisions in this respect, there is no showing that the
employees under Carson were made aware that his authority had been
lessened.
As observed by Mr. Justice Douglas, writing the unanimous opin-
ion of the United States Supreme Court in International Association
of Machinists, Tool and Die Makers Lodge No. 35 v. N.L.R.R. (Ser-
rick Corp.), 311 U.S. 72, 79-81, in rejecting the argument that solici-
tation of union memberships was not conducted by supervisory per-
sonnel but rather by "lead men" :
... where the employees would have just cause to believe that
solicitors professedly for a labor organization were acting for
and on behalf of the management, the Board would be justified
in concluding that they did not have the complete and unhamp-
ered freedom of choice which the Act contemplates.
Local 18's majority rested on the authorization cards obtained by
Carson. Because Carson was a supervisor or apparent agent of Re-
spondent at the time of such solicitation, such solicitation constitutes
unlawful assistance to Local 18 and interference with Section 7
rights by Respondent, and thus violated Section 8(a) (1) and (2).
As the authorization cards were unlawfully obtained by Carson
and without them Local 18 did not have a majority at the time Re-
spondent conditionally recognized it and entered into a collective-
bargaining agreement with it, we find that such recognition and
execution of agreement were further acts of unlawful assistance and
interference with Section 7 rights of employees, violative of Section
8(a) (1) and (2).
We also find that by executing a contract containing a union-
security agreement with the unlawfully assisted Union, and by main-
taining and enforcing that agreement, Respondent has discriminated
against employees and interfered further with their Section 7 rights,
in violation of Section 8(a) (3).4
4. Clearly, Respondent violated Section 8(a) (1), (2), and (3) by
requiring employees Barbara Brown, B. C. Kemp, Estelle Robertson,
and Juanita Kirsch to become members of Local 18 on September 7
and 8,1961.
' Topps Kerrinill, Inc., 143 NLRB 694.
SINKO MANUFACTURING AND TOOL COMPANY
THE REMEDY
205
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and
desist therefrom and take certain affirmative action which we deem
necessary to effectuate the policies of the Act.
Based upon our finding that the Respondent has violated Section
8(a) (2) of the Act, we shall order that the Respondent cease and
desist from such activities and, further, that it withdraw and with-
hold recognition from Local 18 unless and until that union shall have
been certified by the Board as the exclusive representative of the em-
ployees. We shall, of course, also order the Respondent to cease
maintaining and enforcing its unlawful agreement with Local 18.
We have found further that the purported majority which Local
18 asserted on August 30, 1961, and on the basis of which the Re-
spondent accorded its recognition, was obtained by the solicitation of
the Respondent. Consequently, on August 30, 1961, Local 18 did not
represent an uncoerced majority of Respondent's employees and Re-
spondent had no lawful right to execute the union-security agree-
ment and to collect dues and other moneys, the payment of which
was made mandatory under the agreement. In order, therefore,
fully to remedy the unfair labor practices found herein, and to estab-
lish an atmosphere in which the employees may exercise the right to
select, or reject a bargaining representative, we shall order the Re-
spondent to reimburse all its employees, present and former, for dues
and other moneys unlawfully exacted from them since August 30,
1961, the date on which the unlawful union-security agreement was
executed.'
We shall order the Respondent to reimburse all employees for all
such dues and moneys paid or withheld, with interest 6 computed in
the manner set forth in Seafarers International Union of North
America, Great Lakes District, AFL-CIO, 138 NLRB 1142.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Sinko Manufacturing and Tool Company, Chicago, Illinois, its of-
ficers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Assisting and contributing support to Plastic Workers Union
Local 18, I.U.D.T.W., AFL-CIO, or to any other labor organization.
5 Topps Kerrrnall , Inc., supra.
6 I8i8 Plunabnng & Heating Co., 138 NLRB 716.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Recognizing Plastic Workers Union Local 18, I.U.D.T.W.,
AFL-CIO, or any successor thereto, as the representative of its em-
ployees for the purpose of dealing with it concerning wages, rates of
pay, hours of employment, or other conditions of employment, un-
less and until such labor organization shall have been certified by the
Board as the exclusive representative of its employees.
(c) Giving effect to the collective-bargaining agreement entered
into on or about August 30, 1961, or to any extension, renewal, or
modification thereof, unless and until Local 18 shall have been certi-
fied by the Board as the exclusive bargaining representative of its
employees; providing that nothing in this Decision and Order shall
require Respondent to vary or abandon any wage, hour, seniority, or
other substantive feature of its relationship with its employees which
Respondent has established in the performance of such agreement, or
to prejudice the assertion by its employees of any rights they may
have thereunder.
(d) Unlawfully requiring employees to join, or execute checkoffs
of dues and other moneys to, Plastic Workers Union Local 18,
I.U.D.T.W., AFL-CIO.
(e) Encouraging membership in Plastic Workers Union Local 18,
I.U.D.T.W., AFL-CIO, in violation of Section 8 (a) (3) of the Act.
(f) In any other manner interfering with, restraining, or coercing
employees of Sinko in the exercise of the rights guaranteed them in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8(a) (3)
of the Act, as amended.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Plastic Workers
Union Local 18, I.U.D.T.W., AFL-CIO, as the exclusive representa-
tive of its employees, unless and until such labor organization shall
have been certified by the Board as such representative.
(b) Reimburse all employees for dues and other moneys unlaw-
fully exacted under its illegal contract with Local 18, together with
interest at the rate of 6 percent per annum, all in the manner and
to the extent set forth in the section of the Board's Decision and
Order entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of reimburse-
ment due under the terms of this Order.
SINKO MANUFACTURING AND TOOL COMPANY 207
(d) Post at its plant at Chicago, Illinois, copies of the attached
notice marked "Appendix." Copies of said notice, to be furnished by
the Regional Director for Region 13, shall, after being duly signed
by the Respondent's authorized representative, be posted by it im-
mediately on receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to its 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 13, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges violations of the Act not found in
this Decision and Order.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT assist or contribute support to Plastic Work-
ers Union Local 18, I.U.D.T.W., AFL-CIO, or to any other labor
organization.
WE WILL NOT give effect to the collective-bargaining agreement
entered into on or about August 30, 1961, with Plastic Workers
Union Local 18, I.U.D.T.W., AFL-CIO, or to any extension,
renewal, or modification thereof, unless and until Local 1S shall
have been certified by the Board as the exclusive bargaining
representative of its employees.
WE WILL NOT unlawfully require or coerce employees into be-
coming members of the above-named organization, or to execute
checkoffs.
WE WILL withdraw and withhold recognition from the above-
named labor organization unless and until such labor organiza-
tion shall have been certified by the Board as the exclusive repre-
sentative of our employees.
WE WILL reimburse all employees for dues and moneys unlaw-
fully exacted from them, with interest thereon at 6 percent per
annum.
WE WILL NOT encourage membership in Plastic Workers Union
Local 18, I.U.D.T.W., AFL-CIO, in violation of Section 8(a) (3)
of the Act.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, in-
cluding District 50, United Mine Workers of America, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities.
All our employees are free to become or remain or to refrain from
becoming or remaining members of District 50, United Mine Work-
ers of America, or any other labor organization, except to the extent
that such rights may be affected by a valid agreement under Section
8(a) (3) of the National Labor Relations Act, as amended.
SINKO MANUFACTURING AND TOOL COMPANY,
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.
Employees may communicate with the Board's Regional Office, 881
U.S. Courthouse and Federal Office Building, 219 S. Dearborn Street,
Chicago, Ill inois, Telephone No. 828-7572, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The charge in Case No . 13-CA-4433 was filed on September 8, 1961 , by Dis-
trict 50, United Mine Workers of America (hereinafter referred to as District 50)
against Sinko Manufacturing and Tool Company ( hereinafter referred to as Re-
spondent , Sinko , or Employer). The charge in Case No. 13-CA-4433-2 was filed
against Sinko on September 13, 1961 , by Eugene Payan , as an individual. On
October 27, 1961, an order consolidating said cases and a consolidated complaint
were issued in which it was alleged that Sinko committed certain unfair labor
practices within the meaning of Section 8(a)(1), (2 ), and (3 ) of the Labor
Management Relations Act of 1947, as amended (hereinafter referred to as the
Act), naming Plastic Workers Union Local 18, I.U .D.T.W., AFL-CIO (hereinafter
referred to as Local 18 ), as the Party to the Contract . Sinko and Local 18 filed
answers denying the substantive allegations of the complaint.
Pursuant to due notice a hearing on said complaint was commenced in Chicago,
Illinois, on December 12, 1961, before Trial Examiner Stanley Gilbert. On De-
cember 13, 1961 , the hearing was adjourned sine die at the request of General
Counsel to allow him to proceed in the Federal District Court for the enforcement
of subpenas with respect to which compliance had been refused. The hearing
was resumed on March 20 , 1963,1 and continued thereafter on March 21 , 22, 25,
26, 27, and April 10 , 11, 12 , 15, and 16 , 1963. On March 20 , 1963 , the Trial
Examiner granted a motion of General Counsel to amend the complaint by strik-
ing paragraph IX thereof, that portion of the complaint which was predicated
1 Local 18 appealed from the order of the district court granting enforcement of said
suibpenas , and, on November 29, 1962, the Court of Appeals for the Seventh Circuit affirmed
said order.
SINKO MANUFACTURING AND TOOL COMPANY 209
upon the charge filed in Case No. 13-CA-4433-2.2 The complaint was further
amended during the course of the hearing by the addition of the names of Don
Meiners and Henry Heynssens to paragraph VI(d) and (e) thereof and by the
addition of the word "negotiated" to paragraph VI(h) and "executed" to para-
graph VI(i) thereof. Also, General Counsel was permitted to withdraw the alle-
gation in paragraph VI(f) of the complaint. The Trial Examiner permitted an
amendment of the answers to raise the issue of whether District 50 was a labor
organization within the meaning of the Act All parties were represented by
counsel and were given opportuniy to adduce evidence, to examine and cross-
examine witnesses, offer oral argument, and file briefs. Within the time designated
therefore, General Counsel filed his brief and Sinko and Local 18 filed a joint brief.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Sinko, an Illinois corporation with its principal place of business located in
Chicago, Illinois, is engaged at said location in the manufacture of appliance
parts for radios, television sets, refrigerators , electrical equipment , and related
appliances . During the year preceding the issuance of the complaint , a represent-
ative period , it sold and distributed from its said location , directly to States other
than Illinois , products valued in excess of $50,000.
As is conceded by Sinko and Local 18, Sinko is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 18 and District 50 are labor organizations within the meaning of the
Act. Local 18 and Sinko by amendment to their answers (permitted during the
course of the hearing) raised the issue of whether District 50 was a labor organi-
zation within the meaning of the Act, contending that employee participation in
said organization was lacking because of the method employed for the election of
officers and, therefore, District 50 did not qualify as a labor organization within the
definition set forth in Section 2(5) of the Act. However, this contention appears
to have been abandoned by them, since there is no mention of it in their brief in
which they were to present their argument in support thereof. The uncontradicted
testimony of Harold J. Bowers, regional director of District 50, discloses that
employees do participate in the election of officers.3 Therefore, I do not pass upon
the question of whether employees' participation in the election of officers is of any
materiality in determining whether a union is a labor organization within the
meaning of the Act.
III. RE THE UNFAIR LABOR PRACTICES ALLEGED
A. Summary of events and issues raised
On August 30, 1961, Sinko executed a collective-bargaining agreement with
Local 18 as the representative of its production and maintenance personnel consti-
tuting a unit of 133 employees. It is alleged that Local 18 did not, at that time,
represent an uncoerced majority of said employees.
As background to the events surrounding the execution of the agreement, it is
noted that in previous years Local 18 had attempted, without success, to organize
Sinko employees. Also, early in 1961, District 50 engaged in an attempt to
organize said employees. On August 1, 1961, an Intermediate Report was issued in
Case No. 13-CA-4103 finding that the charges therein were sustained, that Sinko
had violated Section 8(a) (3) and (1) of the Act by the discharge of an employee
on February 24, 1961, because of his activities on behalf of District 50.'
2 In accordance with an appropriate settlement of the subject matter of said charge
3 It does not appear necessary to set forth any details of his testimony as to the pro-
cedure followed in the election of officers.
4 Sinko complied with the order recommended therein by posting the required notice in
August 1961 and reinstating the employee In November 1961 There being no exceptions
filed, the Board adopted the findings, conclusions, and recommendations of the Trial
Examiner by its Order dated November 6, 1961.
770-076-65-v of 149-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the month of August, particularly the latter part, both unions campaigned
at the Sinko plant. Apparently most of the efforts on behalf of Local 18 were those
of Dewey Carson, a Sinko employee, who was able to obtain authorization cards
from over 50 employees. It is alleged and General Counsel contends that Carson
was a supervisor within the meaning of the Act and that he was an agent of Sinko
in his solicitation of signatures on behalf of Local 18.5 The issues raised thereby
are discussed hereinbelow.
General Counsel contends, also that, because Sinko had knowledge of District
50's organizational efforts in August 1961, and because of the findings in the
aforementioned Intermediate Report issued on August 1, 1961, a "conflicting
claim" existed and Sinko could not rely upon the authorization cards presented by
Local 18 as proof of its majority status. The issues raised thereby are discussed
hereinbelow.
Prior to a cardcheck on August 30, 1961, Sinko negotiated with Local 18 with
respect to the terms of a collective-bargaining agreement. The record discloses
that the negotiations were conducted on August 27, 1961, with the understanding
that Sinko would not recognize Local 18 as the bargaining representative or enter
into an agreement until Local 18 demonstrated its majority status. It is alleged
and General Counsel contends that these negotiations constituted unlawful as-
sistance within the meaning of Section 8 (a)(2) of the Act. This issue is discussed
hereinbelow.
In the afternoon of August 30, 1961, representatives of Sinko and Local 18 met
and discussed the terms of the contract which had been drafted and presented to
Sinko for signature. Some of those who had been present testified that Local 18
presented 96 signed cards and that after counsel for Sinko checked and satisfied
himself that approximately 70 cards were authentic, he ceased checking cards
(since this figure constituted a majority). The contract was then executed. Ac-
cording to Carson's testimony he transmitted to Local 18, 75 to 80 signed authori-
zation cards. He also testified on direct examination that, of these cards, over 30
were not delivered to Local 18 prior to the evening of August 30. General
Counsel argues that, since Local 18 produced only 96 cards at the hearing, it
could not have presented cards to Sinko signed by a majority of the unit on the
afternoon of August 30, if Carson did not turn over 30 or more cards until the
evening of that day. However, it appears from his cross-examination that Car-
son's recollection of the time and date when he turned over the cards was very
hazy. Therefore, his testimony cannot be relied on to conclude that there could
not have been 70 or more cards checked and deemed to be authentic on the
afternoon of August 30.6
In September 1961, particularly on September 7 and 8, Sinko permitted represent-
atives of Local 18 to use a portion of the plant during working hours to transact
union matters with employees, including the solicitation of their signatures on a
combination form of membership application and dues checkoff authorization.
General Counsel contends that Respondent violated the Act by permitting Local 18
to use a portion of its plant for such purposes with the coercive assistance of
Sinko. The complaint contains allegations of unlawful conduct of various supervi-
sors in connection therewith. These issues are discussed hereinbelow.
On September 11, 1961, a "petition" was circulated in the plant among the
employees which was signed by 47 of them. The petition had been prepared by
District 50 which instigated its circulation. The next day, Sinko posted a rule
prohibiting solicitation "during working hours and on company property." It is
alleged and General Counsel contends that the rule was posted "for the purpose of
unlawfully aiding and assisting Local 18." This is discussed hereinbelow.
B. Carson's supervisory or agency status
The principal issues litigated in this case are whether Carson was a supervisor
within the meaning of the Act or was acting as Sinko's agent in obtaining
8 Sinko and Local 18 contend that agency was not alleged and that General Counsel took
the position that lie was only litigating Carson's supervisory status. However, I find the
allegations in paragraph VI of the complaint include an allegation of agency and I do not
find that the record will support a conclusion that General Counsel abandoned litigation
of said allegation
9 Several witnesses were produced by General Counsel who testified that they did not
sign their authorization cards (included among the 96 produced) until after August 30,
1961. However, this will not permit me to infer, even were I to credit this testimony, that
Local 18 did not, in fact, have and present to Sinko authorization cards signed by a
majority of the employees
SINKO MANUFACTURING AND TOOL COMPANY 211
employees' signatures on Local 18's authorization cards. If Local 18 and Sinko
could not have relied on cards obtained by Carson, it is clear that said union did
not represent an uncoerced majority when they entered into the agreement of
August 30.
Carson was employed in Sinko's "warehouse division" which was charged with
the responsibility of storing raw materials, finished products, and cartons, of dye-
ing plastic granules, of grinding rejected products (presumably to be reduced to
granules for re-use), of burning trash in an incinerator, and of receiving ship-
ments of materials. Although it appears that finished products were shipped from
the same area as that where materials were received and that the "louver depart-
ment" was located in the warehouse, it does not appear that either was a function
of the warehouse division.? Also within the responsibility of the warehouse divi-
sion was the operation of jeeps to tiansport materials and products within the
warehouse and between the warehouse and other areas of the plant.
Donald Downs (a witness called by General Counsel) was foreman of the ware-
house division from January 1961 to March 17, 1961. He testified that Carson
"was in charge of the finished goods section" and Ron Sasuski of the "raw
material section ." 8 According to Downs, the "finished goods section" embraced
the storing of finished products, the storing of cartons, and grinding. Downs
testified that there were three employees besides Carson in said section (one in the
carton division and two on the grinders), and that when there was overtime work
authorized by Jack Condran, the plant manager, he (Downs) would notify Carson
of what was required and permit Carson to select the employee or employees to
whom it was to be assigned . In view of the limited number of employees and the
nature of their assignments, it would appear the selection of employees for over-
time work was virtually automatic.
Downs further testified that Carson gave orders to the carton section employee
and to the employees on the grinders. It appears that these orders were of a
routine nature . For example, "he would inform the grinders which parts to be
ground up ." The grinding operation merely consisted of feeding rejected parts
into the machine (requiring no particular skill). The selection of parts consisted
of determining what group of rejected products were to be ground in order to
avoid mixing those of different colors. As another example, Downs testified that
when finished products in storage were required in another part of the plant
Carson "would either take them himself or send ... the carton fellow over."
Salvador Ingratta became foreman of the warehouse division on March 20, 1961,
and continued in that capacity to the date of his testimony in this proceeding. He
had had many years of previous experience as a warehouse superintendent in a
plastics manufacturing plant. According to his testimony, which I credit unless
otherwise indicated, there were four employees in said division when he entered his
employment at Sinko, which number was expanded to eight over the period of the
following several months. At the start, the four employees performed "all of the
duties" of the warehouse division. For the first few months (until June 1961),
Ingratta devoted a considerable portion of his time to setting up an inventory
system. After this was completed, in mid-June of 1961, he was able to devote his
full time to the running of the warehouse division, and he departmentalized the
division.
Ingratta testified that, during the period prior to mid-June, he relied on
Carson to transmit orders to other employees, because Carson was the oldest em-
ployee in the division (in term of service) and he "thought Carson was a very
good man." Both Ingratta and Carson testified that Carson only relayed the
orders that were given to him by Ingratta. On the other hand, from the testi-
mony of Norman Patrick (among other things, that Ingratta told him Carson was
his "assistant foreman" and to do whatever Carson said), of Robert Bartley (among
other things, that Ingratta said Carson was his "assistant" and would send him to
Carson for instructions and instructed him to do what Carson told him), of
7 There is some confusion in the record as to whether the shipping operations and the
functions performed in the louver department were or wert, not within the jurisdiction of
the warehouse division. This confusion is largely created by contradictions in the testi-
mony of Howard Nielsen, Sinko's secretary and treasurer, and by reason of the fact that
their operations were physically carried out in the warehouse. However, I am satisfied
that the record demonstrates that they were not responsibilities of the warehouse division,
as such.
8 Throughout the record the words "in charge" were used by witnesses to describe both
supervisory and nonsupervisory responsibilities.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George McCoy ( among other things, that Ingratta told him that Carson would
be his "boss" and show him what to do ), and of John Looney ( among other
things, that Ingratta told him Carson was his "right hand man "), I infer that
Carson acted as more than a mere messenger for Ingratta .a This does not mean
that I wholly discredit the testimony of Ingratta and Carson on this point. From
my analysis of the testimony in the record with respect to the relationship between
Carson and Ingratta and between Carson and the other employees , I am convinced
that Ingratta did give instructions to Carson as to what he wanted done, but relied
upon Carson to carry out the details. However, it does not appear that during
said period Ingratta delegated to Carson any authority "to hire, transfer , suspend,
lay off, recall , promote, discharge , assign , reward, or discipline other employees, or
responsibly to direct them , or to adjust their grievances , or effectively to recom-
mend such action.. " 10 In view of the functions performed by the warehouse
division , it is my opinion that in carrying out details of Ingratta 's instructions
Carson was only directing the other employees in areas "of a merely routine
. nature." 11 Further, it appears that Carson performed all of the tasks that the
other employees performed , including that of sweeping the floor.
In any event , Carson 's duties were changed approximately 2 months prior to the
period in August during which he solicited signatures on Local 18 authorization
cards. The record discloses that , starting in mid-June 1961 , Ingratta devoted his
full time to running the warehouse , having completed the installation of an inven-
tory system , and that he departmentalized the division . He assigned Carson to the
job of stock control which required the greater portion of Carson's workday.
During the remainder of his workday Carson performed the various tasks that
were performed by other employees-driving a jeep, unloading trucks, assisting at
the incinerator and the grinder , and sweeping the floor. Ingratta testified cred-
ibly that, subsequent to mid-June , he used Carson much less frequently to relay
instructions . Since Ingratta spent all of his time in the warehouse , except for brief
periods, and was no longer spending time setting up the inventory system, it
would appear that he had little or no further need to rely upon Carson to assist him
in the running of the warehouse. There were, from June through August 1961,
only eight employees in the division and each had primary tasks assigned to
him. Further direction of the employees would appear to consist in the main, of
instructing one to assist another when assistance was required . It appears that
frequently such assistance was rendered by an employee merely at the request of
another.
While there is testimony , which was contradicted , that on one occasion Carson
permitted an employee to leave because of sickness and on another occasion he
effectively recommended against transferring an employee to another shift, even if
I were to credit this testimony , I would find these two instances of little signifi-
cance, there being no showing that he was officially delegated such authority, or
that it was any more than a sporadic exercise of such authority.
It does not appear that management regarded Carson as a supervisor or fore-
man, or that the employees had reasonable grounds to believe that he enjoyed such
status. Carson did not attend the meetings of foremen , 12 and, unlike the foremen
and assistant foremen , was on an hourly rate rather than on salary. There is a
considerable amount of testimony with respect to the use of a code designation of
"6" on Carson's payroll record. Is appears , from the credited testimony of Arthur
Weinstein , Sinko's auditor , and of Evelyn Skomer, payroll clerk, that, although
Weinstein had set up a code (for his use in breaking down plant costs) which
included the designation of "6" for supervisors , the code was never utilized for that
purpose and , instead , was employed by Skomer in connection with the distribution
of paychecks . While it does appear that the code was not consistently applied to
carry out that purpose, it is obvious that it was not applied in accordance with the
purpose for which it was originally designed ( the number "6" was not consistently
applied to foremen). Therefore , no significance can be attached to the code des-
ignation of "6" on Carson 's payroll
I have, as above indicated , credited testimony that Ingratta referred to Carson as
a "boss," "assistant foreman ," "assistant ," and "right-hand man ." However, from
D Although Ingratta denies referring to Carson in the terms above indicated, I do not
credit his denial I believe that lie made such references to aid Carson in exercising con-
trol over his fellow-employees so that Carson could carry out his (Ingratta's) instructions.
10 Quotation from Section 2(11) of the Act-definition of "supervisor"
11 Footnote 10, supra
'° Carson was a "safety man" and was included in the meetings of foremen only at such
times as the presence of safety men was required
SINKO MANUFACTURING AND TOOL COMPANY 213
the variation in the titles , the testimony of Carson that he never heard Ingratta
refer to anyone as his "assistant foreman" or as "his assistant ," and the credited
testimony of various of Respondent 's witnesses that the warehouse division did not
have an assistant foreman in its organization , I conclude that Carson had not been
designated as an assistant foreman by management At the most, the use by
Ingratta of the various above-mentioned titles with reference to Carson mounts to
nothing more than a conferral by a minor supervisor of ambiguous badges of
authority upon an employee under his supervision without authorization by those
above him in the echelon of management.
Other indicia of Carson's supervisory status cited by General Counsel, but which
I find of little or no significance , are as follows:
1. That Carson was paid an hourly rate of $1.90 an hour, at least 30 cents more
than any other employee in the division. Patrick testified that he started in July
1961 at a rate of $1.55 or $1.60 an hour and it appears that Sinko gave periodic
increases . In view of the length of Carson's employment , I find no significance in
the 30-cent differential.
2. That over a period chiefly prior to June 1961, Carson picked up and dis-
tributed paychecks for the warehouse division . It does not appear that during said
period this was done in the plant only by those who had supervisory status. Such
activity by Carson is not, to my mind, a persuasive indication of supervisory status.
3. That Pati ick testified that "Ingratta `chewed Carson out' for not getting on
the men enough." This, General Counsel argues, is indicative of the fact that
Carson had and exercised authority over his fellow employees. Without further
explanation , particularly as to what prompted the statement , I find it too am-
biguous to permit any meaningful inference . Although it would appear from the
statement that Carson had been deficient in exercising some sort of authority which
Ingratta expected of him, there is no indication over what area the authority
extended. Carson was designated as the "safety man" for his division, and it
could very well have been with respect to a failure on his part to insist on the
observance of safety rules.
4. John Looney testified with respect to two notices which had been posted in
the warehouse. One was a safety notice which had been written by Carson and
signed "supervision" and the other calling for a meeting of the jeep drivers which
was signed "Dewey Carson " The first notice obviously must have been in connec-
tion with Carson 's duties as "safety man ," and, as to the second, there being no
showing of the purpose of the meeting , it affords little or no basis for a conclusion
which would have some significance
5. General Counsel argues that Carson had supervisory status because he "had
and exercised the authority to change the lunch hours of jeep drivers Patrick and
McCoy." Patrick and McCoy testified that on occasions Carsons asked them to
delay their lunch hour in order to finish some work they were performing. There
is no showing that occasional changes in the lunch hour of an employee required
the approval of supervisory authority.
If Carson had been a supervisor during the period March through August
1961, as General Counsel contends , the ratio of supervisors to employees in the
warehouse division would have been 1 to 1 '/2 at the start of the period and 1 to
3'/z during the latter part of the period. Such ratios would appear to be unreason.
ably high, particularly for the type of work performed by the warehouse division,
largely unskilled and routine.
In the light of the above analysis of the record and of the contentions of General
Counsel , I conclude that General Counsel has not sustained the allegation that
Carson was a supervisor within the meaning of the Act.
General Counsel urges, in the alternative , that , based upon the factors which
were advanced as indicative of Carson's supervisory status and the further fact that
Sinko permitted Carson to solicit signatures ( on Local 18 cards) in the plant, it
would be appropriate to infer that in doing so Carson was acting on behalf of
management , or that employees would have reasonable grounds for believing
so. Ingratta testified that, when he discovered Carson was engaging in such
activity , he reported it to Nielsen and that Nielsen told him to inform Carson
(which he did) "that it would be all right to do this, but not on company time." 13
13 There is no showing that permission for similar privileges was requested on behalf of
District 50 and refused Therefore, the fact that Carson was granted this privilege would
not constitute an unfair labor practice Although General Counsel does not contend in his
brief that it was an unfair labor practice, it appears to fall within an allegation thereof
in the complaint.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not find that this affords a reasonable ground for concluding that Carson
was acting as Sinko's agent , or that it, coupled with the factors which were urged
in support of the allegation of Carson's supervisory status, affords a basis for
concluding that the employees had reasonable grounds to believe Carson was
allied with management and were, therefore , coerced into signing Local 18 author-
ization cards.
C. Effect of the findings in the Intermediate Report of August 1, 1961
In the aforementioned Intermediate Report ( in Case No. 13-CA-4103 ) issued on
August 1, 1961, the Trial Examiner who issued it found that Sinko had violated
Section 8 ( a)(3) and (1) of the Act by its discharge on February 24, 1961, of
an employee because of his organizational activities on behalf of District
50. Sinko immediately notified the Board of its willingness of comply with the
order recommended by the Trial Examiner , posted the required notice in the early
part of August , and reinstated the employee in November 1961 . By Order dated
November 6, 1961, the Board adopted the findings , conclusions and recommenda-
tions contained in said Intermediate Report , there being no exceptions filed.
General Counsel contends that a "conflicting claim did exist " at the time Sinko
executed the collective -bargaining agreement with Local 18 (on August 30,
1961 ), "because Respondent had knowledge that District 50 had renewed the or-
ganizational campaign at the plant in August 1961, that Respondent 's prior con-
duct (13-CA-4103) [the violation found in the aforementioned Intermediate
Report] had so ruthlessly smashed." District 50 had not communicated a claim of
majority representation until its letter to Sinko dated August 31, 1961 ,14 a day after
the agreement was executed . However, General Counsel apparently contends that
the circumstances he pointed out were tantamount to a claim.
Sinko and Local 18 argue that I cannot rely on the aforesaid Intermediate
Report and Board Order to concede that Sinko did commit a violation of Section
8(a)(3) as found, since the report was not an "initial decision" by the Board and
the Board Order was no more than a "rubber stamp of approval " ( the Board
having no alternative under the Act but to approve , in the absence of excep-
tions ). I find no merit in this argument . It is provided in Section 10(c) of the
Act that, in the event exceptions are not timely filed , a "recommended order shall
become the order of the Board and become effective as therein prescribed ." By the
Board Order of November 6, the findings in the report became the findings of
the Board, and this would appear to be consistent with the provision in Section
10(c) of the Act. I am of the opinion that having waived his right to appeal
from findings in an Intermediate Report by failing to file exceptions thereto, a
respondent cannot then contend that he is not bound by such findings and thus
limit the consequences thereof.
However , even though I have determined that I can rely upon the findings in
the aforementioned Intermediate Report to conclude that Sinko did discharge an
employee for activities on behalf of District 50 , I am of the opinion that it does not
follow that , because it had knowledge that District 50 was compaigning in August
1961, and , because of the unfair labor practice it committed on February 24, 1961,
Sinko should have refused on August 30, 1961, to recognize Local 18 as the
bargaining representative of its employees.
The aforesaid discharge in February could not have been designed to assist
Local 18, nor could it reasonably have been construed by the employees as an
indication of a preference for Local 18 . In previous years Sinko had successfully
resisted attempts of Local 18 to organize its plant , and, in 1960 , Local 18 had lost
a Board-conducted election . Thereafter , until August 1961 , Local 18 apparently
made no further attempt to organize Respondent 's employees.
I am not of the opinion that there is a sufficient basis to conclude that , but for
the aforesaid discriminatory discharge , District 50 would have obtained majority
representation . There is no showing that District 50 ever had been authorized by
a majority of the Sinko employees to represent them . Therefore , this is not an
analogous situation to that where a majority is dissipated by an employer 's unfair
labor practice . A conclusion that District 50 would have obtained a majority could
only be based on mere conjecture , rather than on reasonable grounds.
Is Sinko responded, by letter dated September 7, that it had executed an agreement with
Local 18, prior to receipt of District 50's letter , upon Local 18's demonstration of majority
status.
SINKO MANUFACTURING AND TOOL COMPANY 215
Thus, I am not persuaded that Respondent should reasonably have assumed that
District 50 had a claim of majority representation or would have had, but for
Respondent 's unfair labor practice.
During the course of the hearing and at its conclusion , I indicated that I consid-
ered that General Counsel had raised the issue of whether Local 18's cards could be
relied upon to prove an uncoerced majority, based upon a contention that they were
obtained in a coercive atmosphere , i.e., during a period prior to the time when the
February discriminatory discharge had been fully remedied . Although the notice
provided for in the aforementioned Intermediate Report was posted in the early part
of August , it had not been posted for the required 60 days at the time signatures
were solicited for Local 18, and the employee was not reinstated , and presumably
not made whole , until over 2 months after Local 18 had obtained its cards.
General Counsel relies upon two facts to establish , as an element of the coercive
atmosphere , that Sinko communicated to its employees that it preferred Local 18
to District 50: first, that it permitted Carson to solicit signatures in the plant on
behalf of Local 18; 15 and second , a statement made by Henry Heynssens , molding
superintendent , in August 1961, to employees Bartley and Patrick to which they
testified without contradiction . Bartley testified that the two of them walked in the
plant with District 50 literature in their hands and that "As we walked in the door
with this stuff in our - hand , Pros [Heynssens] asked if you are going to get a
union, why don't you get a good one like one of these plastic unions." Patrick's
testimony is coiroborative.
I cannot conclude that , because Sinko did not commit the unfair labor practice of
unlawfully prohibiting Carson from engaging in a protected activity (soliciting
signatures on nonworking time ), Sinko coerced employees into signing cards for
Local 18 or unlawfully assisted Local 18 . Nor am I satisfied that I can conclude
that, because of the discharge in February and the noncoercive expression of
opinion by Heynssens (quoted above ), the employees were coerced into signing
cards for Local 18 or that there was a coercive atmosphere which precluded em-
ployees from making a free choice between the two unions.
While the February discharge may have had a coercive effect on Sinko em-
ployees by discouraging them from engaging in union activity , there is no basis,
as I have indicated , for inferring that it was designed to encourage them to adhere
to Local 18 rather than to District 50. Furthermore , the passage of time (6
months ) and the posting of the notice must have substantially dissipated the coer-
cive effect of the discriminatory discharge , even though it had not been fully
remedied . In any event , whatever coercive effect remained , I do not believe that it
had the effect of discouraging membership in District 50 while encouraging
membership in Local 18, or that it inhibited employees from making a free
choice.1o
15 As indicated above, this permission was limited to nonworking time and there is no
indication that a similar privilege on behalf of District 50 was requested and refused.
19 Compare the situation revealed in this proceeding with that in Bernhardt Bros. Tug-
boat Service , Inc., 142 NLRB 851. In the Bernhardt case the Trial Examiner found that
10 days prior to the inception of an organizational attempt by the Seafarers International
Union , the respondent therein discriminatorily discharged an employee for activity on be-
half of the National Maritime Union, and thereby "created an atmosphere designed to
suppress any NMU-oriented support ." He concluded , therefore , that the cards obtained
shortly thereafter by SIU were " tainted." The Board stated in its decision that it found,
as did the Trial Examiner , that the respondent therein violated Section 8 ( a) (1), (2),
and (3 ) of the Act by executing and maintaining a union -security agreement with SIU for
the reason that "at no critical time . . . was the SIU the freely designated bargaining
representative of Respondent ' s crew members ." However , the Board further states, "We
base our finding , however, upon the coercive atmosphere engendered by Respondent's un-
lawful conduct occurring both before and during the period when the SIU was soliciting
authorization cards. Thus , the record shows that Respondent discharged Chappell on
February 3 because of his NMU adherence and the reason for the discharge was communi-
cated to crew members of the Wisconsin . In addition , on February 15, on the very day
of the SIU 's solicitation aboard the Pere Marquette , the master of that vessel told Swan,
in the presence of other crew members, that the SIU was the only Union the Respondent
would recognize, 'so we might just as well join it if we were talking about joining.' By
way of contrast , as the Trial Examiner found, Respondent placed no impediment in the
path of the SIU organizing campaign."
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude, therefore that General Counsel has not sustanied the contention that
the Local 18 authorization cards were "tainted" and could not have been relied upon
for proof of majority representation.
D. Re the negotiations prior to the cardcheck
It is contended that Sinko unlawfully assisted Local 18 by "negotiating" a
contract with it prioi to a demonstration of the Union's majority status. David R.
Loewenberg, cocounsel for Local 18 in this proceeding and general counsel of the
Joint Board of I.t,J D.T.W., AFL-CIO, in 1961, credibly testified with respect to the
negotiations and the circumstances surrounding them. His testimony is summa-
rized as follows:
By reason of past experience, he was aware that Charles C. Porcelli [counsel
for Sinko in this proceeding] repiesented Sinko, and on August 25, 1961, he
called Porcelli and demanded that Sinko recognize Local 18 as the exclusive
bargaining representative of its production and maintenance employees. Por-
celli replied that his client (apparently referring to Nielson, who, at the time,
was in Wisconsin on vacation) was out of town and that he did not want to
discuss anything until his return. Loewenberg told Porcelli that if Local 18
"didn't get recognition we would strike the following week." Porcelli
agreed to meet with Local 18 representatives that evening. At the meeting
he offered to let Porcelli check their authorization cards and told him that they
could discuss contract terms when Nielsen returned, but that he wanted imme-
diate recognition. Porcelli said, he could make no commitments for Sinko,
that he would contact Nielson, and that he had no authority to conduct a card
check. He gave Porcelli a standard form contract of Local 18. On the next
day he again called Porcelli who told him that Sinko would not grant recog-
nition until Nielsen returned, but that he would be willing to meet with Local
18 representatives. A meeting was arranged for August 27 at which Porcelli
stated that any agreement reached, would be subject to Local 18 establishing
its majority status Porcelli presented a proposed draft of an agreement and
6 to 7 hours were spent in discussing terms and conditions until an accord was
reached. On August 28, Local 18 delivered to Porcelli a copy of a contract
which embodied the terms and conditions upon which agreement had been
reached. This was the contract which was executed on August 30.
There is no showing that any of the terms or conditions of the contract, or even
the fact that negotiations were being conducted, was communicated to any of the
employees prior to the cardcheck on August 30. On the contrary, it appears from
the testimony of some of General Counsel's witnesses that Sinko's recognition of
Local 18 and the execution of a contract with it came as a complete surprise to
the employees when it was announced approximately a week later (on September
7).17 In these circumstances, I am unable to see any basis for inferring that the
negotiations on August 27 unlawfully assisted Local 18. General Counsel cites no
precedent for finding that negotiations prior to a demonstration of a majority,
without more , constitute unlawful assistance. Moreover , in view of the dates on
the authorization cards in evidence, I am not satisfied that I can conclude that, in
fact, a majority of the employees had not signed authorization cards for Local 18
by August 27. Seventy-two were dated prior to August 27 and there were 133
employees in the unit.
E. Alleged assistance subsequent to the execution of the contract
Starting on September 7, 1961, Local 18 representatives came into the plant
during working hours with the permission of Sinko, in order to carry out union
business with the employees , particularly to give them certain union material and
to obtain signatures on a combination form which constituted a checkoff authoriza-
tion and a membership application . Although it is alleged that the aforesaid
permission constituted unlawful assistance , I am of the opinion that , since I find
17 In his brief General Counsel states that the "fact of execution of the contract was kept
secret from the employees" until September 7.
SINKO MANUFACTURING AND TOOL COMPANY 217
that General Counsel has not sustained the allegation that "at the time of the
execution of the contract Local 18 did not represent an uncoerced majority of
Respondent 's employees ," such permission was not unlawful.
However, there are also allegations in the complaint of coercive conduct on the
part of various Sinko supervisors in September, particularly on September 7 and 8,
and testimony was adduced with respect to certain incidents which General Counsel
contends sustains certain of these allegations.
It appears that on September 7 and 8 it was announced in the plant that a
collective -bargaining agreement had been entered into with Local 18 , and that
representatives of that union were in the plant to explain the terms and conditions
of the contract . Thereafter , arrangements were made to permit employees to leave
their work in order to meet individually with said representatives . It should be
noted at this point that the contract contained a union-security clause with a 30-day
grace period.
Barbara Brown testified , without contradiction , that at her interview with one of
the Local 18 representatives , she was given a "card" to sign , but did not sign
it. She then walked over to where Robert Neuenfeld (an admitted supervisor) was
standing and he asked her whether she had signed , She told him she had not,
that she "wanted to think it over." "And he [Neuenfeld] said go ahead, what do
you have to lose, you get 07 an hour more and it wouldn't hurt you." She further
testified that a short while later Bob Neuenfeld walked up to her and said that
Jack Condran said that she had "had enough time to think it over, come back and
sign up." ` She then went to the inspection department where the Local 18
representatives were interviewing employees and signed the application for member-
ship and dues checkoff authorization.
It appears that she signed when she did because of the statement made to her
by Neuenfeld which, I find, she reasonably must have understood to have been an
order. Therefore, I conclude that Sinko required her to become a member of
Local 18 on September 7, 1961.
B. C. Kamp testified that, after the announcement of the contract and of the
presence of Local 18 representatives , his foreman Don Meiners , came up to him
and that he told Meiners, "I don't know nothing about this union , I don't care
about following with it, I was a new employee ." He further testified Meiners said
"I had to join the union or go home," and so he joined. Meiners denied that he
told anyone that "he had to join the Union or go home" or used words to that
effect. Meiners further testified that, at the time, he did not know for what pur-
pose the employees were being excused from their work to go to the inspection
room . Roberson testified that when she was being relieved at her job to go to
the inspection room ( where the Local 18 representatives were ), Meiners walked up
and she asked him, "Don, do I have to go." She testified that he replied , "If you
work here you do," and so she "went on in and signed."
I credit the testimony of Kemp and Roberson , who appeared to be attempting to
testify to the best of their recollection , while on the other hand Meiners was not
a convincing witness with respect to the September 8 incidents ." ) Therefore, I
conclude that by Meiners ' statements to Kemp and Roberson , Sinko required them
to become members of Local 18 on September 8, 1961.
Juanita Kirsch testified , without contradiction , that Peter Russo, an admitted
supervisor , asked her on September 7 if she had "signed up for the union," and
when she replied in the negative , he said, ". . . go do it ." I conclude that in
signing the Local 18 membership application she complied with an order of
Respondent.
Other employees testified to the circumstances which led to their signing mem-
bership applications and dues checkoff authorizations on September 7 or 8, but
1e Her testimony on line 25 of page 453 and line 1 of page 454 of the transcript has been
incorrectly transcribed . According to my recollection , substantiated by notes, said lines
should read, and are so corrected, "Bob walked up to me and said Jack said you have had
enough time to think it over, come back and sign up "
1e Although Kemp fixed the date some days earlier, it appears that the third shift, of
which lie and Roberson were member,, were interviewed by Local 18 members on the
morning of September 8.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not find that their testimony will support a finding that any of them were
required by Respondent to do so.20
F. The no-solicitation rule
On September 11, 1961, at the instigation of District 50, a "petition" was circu-
lated amoung the employees which was signed by 47 of them. The "petition"
stated that the undersigned "do not wish to be represented" by Local 18 and
demanded a Board-conducted election. The following day, Sinko posted a rule
prohibiting solicitation "during working hours and on company property." It is
alleged and General Counsel contends that the rule was posted "for the purpose of
unlawfully aiding assisting Local 18." Inasmuch as I find that Sinko lawfully
recognized and entered into a contract with Local 18 less than 2 weeks prior
thereto, it would follow that there is no basis for concluding that by posting the
rule it unlawfully assisted Local 18. Although there is some mention in the record
20 Marie Solesky testified.
When I cane to work my foreman told me to go in the back and I followed all of
the other girls. And I heard we had a union, and I said, Gee, am I happy.
Marie Kiefer testified:
A. . . . As we punched the time clock, I believe it was Pete Russo that told us to
go back in the inspection room and get our union cards.
Q. Then what did you do 7
A. We all hollered, Union, what union
Q. What did you dog
A. We walked back and got our cards.
Travis Hutchins testified he was relieved at his work by a fellow employee who told him
to go to the area in the plant where the Local 18 representatives were interviewing
employees
Elizabeth Kraemer testified that she was told by Heynssens, an admitted supervisor,
. . you will be relieved and you are to go to the shipping room to see the Union people."
Troy Caudill testified that Meiners told him and another employee (Gabby Bloom) to
start relieving operators and to tell them to report to the inspection department and "after
we got through relieving we could go ourselves" ; that Meiners did not state the purpose
for going to the inspection department.
Marshall Humphrey testified with respect to a conversation with Meiners as follows:
The WITNESS: Ile came up and told me to relieve the operators and for them to go
back and sign up for the Union.
So, I started to relieving the operators and quit making boxes.
Q. Did he tell you where to tell the operators to go?
A. In the inspection department.
Q. What did you do after he told you this?
A. He told me to go back myself.
Although the words "for them to go back and sign up for the Union," might be con-
strued as an order to Humphrey and as an order to be transmitted to other employees, in
its context it is ambiguous, since I believe it can also be construed as merely a statement
of the reason for his relieving the operators.
George Lindsey testified to a conversation with Peter Russo, an admitted supervisor,
as follows:
A. Pet[c] Russo told me to go back there.
Q. Where did he tell you to go?
A. Back in the shipping department.
Q. When did Mr . Russo tell you to go back and sign in the shipping department?
[Emphasis supplied.]
TRIAL EXAMINER: Well, let's find out what Pete Russo said to him.
Q. (By Mr. FITZGERALD.) Can you remember what Pete Russo said to you?
A. He told me to go back and sign up with the Union back there.
So, I went back there and signed up for it, he didn't make me.
I am of the opinion that General Counsel by his leading question (emphasized above)
caused the witness to change his testimony of what he was told by Russo by adding to the
instruction to go to the inspection department a further instruction to "sign up." In the
circumstances, I do not give any weight to his changed testimony.
SINKO MANUFACTURING AND TOOL COMPANY 219
that the rule is too broad and, therefore , invalid per se, it is not so alleged in
the complaint. The rule is somewhat ambiguous in that it might be construed to
mean that no solicitation would be permitted anywhere in the plant even on non-
working hours. There is no evidence, however, that it was so applied. In the
circumstances, I will not pass upon the validity of the rule except to note for the
guidance of Sinko that the rule should be clarified so as to make it obvious to
employees that solicitation is prohibited only on company time and in work areas of
the plant.
Summary of Conclusions
1. Dewey Carson was not a supervisor within the meaning of the Act.
2. Carson was not an agent of Sinko, and the employees could not reasonably
have believed he was acting for management in his solicitation of signatures on
Local 18 authorization cards.
3. At the time Sinko executed a collective-bargaining agreement with Local 18
(on August 30, 1961), District 50 had not communicated to Sinko any claim of
majority representation, nor were the circumstances such that Sinko should reason-
ably have assumed the existence of such a claim.
4. At said time, there was no real question concerning representation.
5. Local 18 authorization cards were not obtained from employees in a coercive
atmosphere so as to render them unreliable as a basis for Sinko's acceptance of
Local 18's claim of majority representation.
6. Sinko did not engage in any conduct which would constitute unlawful assist-
ance of Local 18 in obtaining its majority representation.
7. General Counsel has failed to sustain the burden of proof of the allegation
that Local 18 did not represent an uncoerced majority at the time the collective-bar-
gaining agreement was executed.
8. Sinko did unlawfully require employees Brown, Kemp, Roberson, and Kirsch
to become members of Local 18 before the expiration of the 30-day grace period
provided in the union -security clause of the aforementioned collective-bargaining
agreement.
9. Sinko did not unlawfully assist Local 18 by posting a no-solicitation rule on
September 12, 1961.
10. The allegations in the complaint of unfair labor practices have not been
sustained (except as stated in paragraph 9, above) based upon my conclusion that
the evidence fails to support such allegations or because no evidence in support
thereof was introduced.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of Respondent, set forth in section III, above, of
requiring certain employees to become members of Local 18 prior to the 30th day
following the effective date of its collective-bargaining agreement with Local 18,
occurring in connection with the operations of the Respondent, described in section
I, above, have a close , intimate , and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
As above indicated, said unfair labor practices consisted of requiring four em-
ployees, as a condition of their employment , to become members of Local 18 prior
to the 30th day following the effective date of Respondent's collective-bargaining
agreement with Local 18 executed on August 30, 1961. General Counsel con-
tends that , as a remedy for such unfair labor practices , Respondent should be
required to reimburse employees affected thereby for all moneys they were required
to pay to said Union as an obligation of membership therein without any limitation
with respect to the period of time. I am of the opinion that reimbursement should
be made by Respondent only for such moneys as they were required to pay to said
Union as an obligation of membership therein for the period prior to the date
membership was required of them according to the terms of the aforesaid collec-
tive-bargaining agreement . It will be so recommended.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel further contends that "post-contract 8(a) (2) conduct of Re-
spondent Sinko renders the contract invalid." It is not clear whether he would
contend this to be so based upon the postcontract unfair labor practices which I
have found. Since said unfair labor practices could not have affected Local 18's
majority status at the time the contract was executed and afford no basis for
concluding that, as a result thereof, Local 18 should not have been permitted to
continue as the bargaining representative of Respondent's employees, I find no
merit in the contention that the contract be considered invalid.
Upon the basis of the foregoing finding of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. Local 18 and District 50 are labor organizations within the meaning of the
Act.
3. General Counsel has failed to sustain the burden of proof of the allegation
that Local 18 did not represent an uncoerced majority of Respondent's production
and maintenance employees at the time Respondent and Local 18 entered into their
collective-bargaining agreement of August 30, 1961.
4. General Counsel has failed to sustain the burden of proof with respect to all
allegations of unfair labor practices in the complaint, except as noted in the next
following paragraph.
5. By requiring employees Barbara Brown, B. C. Kemp, Estelle Roberson, and
Juanita Kirsch, as a condition of their employment, to become members of Local 18
prior to the date such membership was required by the terms of the aforesaid col-
lective bargaining agreement, Respondent discriminated against said employees in
violation of Section 8 (a) (3) and (1) of the Act and unlawfully assisted Local 18 in
violation of Section 8 (a) (2) and (1) of the Act.
[Recommended Order omitted from publication.]
Painters District Council No. 4, Brotherhood of Painters, Deco-
rators & Paperhangers of America , AFL-CIO [ The Colonial
Painting Company, Inc.] and John J. Pike. Case No. 3-CB-
704. October 08, 1964
DECISION AND ORDER
On July 9, 1964, Trial Examiner Eugene E. Dixon issued his De-
cision in the above-entitled proceeding, finding that the 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 De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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
149 NLRB No. 24.