Summer & Co.

National Labor Relations Board - Board Decisions

Jun 7, 1971

190 N.L.R.B. 718 (N.L.R.B. 1971)

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Linden Lumber Division , Summer & Co. and Truck
Drivers Union Local No. 413 , Affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Cases 9-
CA-4197, 9-CA-4283, and 9-CA-4309
June 7, 1971
DECISION AND ORDER
On January 26, 1968, Trial Examiner Ivar H. Peter-
son issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a brief in support thereof. The Charging Party filed an
answering brief.
Thereafter, by Order of April 15, 1968, the National
Labor Relations Board remanded the proceeding to
Trial Examiner Peterson to consider further Respond-
ent's defense to the 8(a)(5) allegation, by making
findings of fact concerning (1) the supervisory status of
Shafer and (2) if a supervisor, the impact of Shafer's
conduct on the validity of the Union's card majority;
and for making any other or additional findings based
on the record as supplemented, if necessary, by evi-
dence received at a reopened hearing.
On April 26, 1968, the Trial Examiner issued his
Supplemental Decision, also attached hereto, making
findings in accord with the remand. He concluded that
it was unnecessary to take additional evidence because
the existing record established that Shafer was a super-
visor and that Shafer did not taint the Union's majority
by either signing a card or any other conduct. The Trial
Examiner also indicated that he would adhere to the
findings, conclusions, and recommendations contained
in his original Decision of January 26, 1968. There-
after, Respondent filed exceptions to the Supplemental
Decision and a brief in support thereof.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions thereto, the brief and
answering brief, the Supplemental Decision, the excep-
tions thereto and brief, and the entire record in this
case, and hereby adopts to findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith:
The facts are fully set forth in the Trial Examiner's
Decisions. On December 28, 1966, employee Martin
contacted Union Representative Norman about organ-
izing Respondent's employees. The next day Norman
held a meeting during which 12 employees, including
190 NLRB No. 116
2 alleged supervisors, Shafer and Marsh, signed author-
ization cards. (The parties stipulated that the unit con-
sisted of 12 employees, excluding 3 whose eligibility
was disputed.) On January 3, 1967, the Union sent a
letter to the Respondent requesting recognition and on
January 5 filed a representation petition (Case 9-RC-
7096). On January 6, the Respondent replied that it did
not believe the Union represented a majority and sug-
gested that the Union petition the Board for an elec-
tion. On January 9, pursuant to the RC petition, the
Respondent submitted a list of employees which in-
cluded Shafer and Marsh as well as one other employee
stipulated by all parties at the hearing to be a super-
visor, and a dispatcher on whose status all parties re-
served.
On February 3, at a prehearing conference on the
Union's petition attended by the parties, Marsh and
Shafer were present as employee representatives of the
Union. During that conference, Union Attorney Smed-
stad asked Company Consultant Rector if the Re-
spondent would enter into a consent election agree-
ment. Rector replied that since the Union had been
organized by supervisors (Marsh and Shafer) it would
be unlawful for the Company to recognize it according
to cases in the Sixth Circuit. At that point the Hearing
Officer stated that evidence of organization by super-
visors did not warrant a hearing since the Union's
showing of interest could not be litigated in a represen-
tation proceeding. Rector then said, "Well, if you are
going to deny me the right of a record on this, then the
Board can do what it wants to. If it holds an election,
the Company will not bargain with the Union." (At
that time the issues going to the validity of an election
were limited to the validity of the Union's showing,
there being no dispute on jurisdiction, labor organiza-
tion, or the appropriate unit.)
Immediately after Rector's statement, the union rep-
resentatives withdrew the representation petition.
After the withdrawal was approved Rector told Smed-
stad that if the Union submitted a new petition sup-
ported by a "fresh" 30-percent showing of interest, the
Company would go to a consent election. When Smed-
stad replied that the Union had "all the people lined
up," Rector retorted that, since supervisors had solic-
ited these people, there was no fresh showing. More-
over, the Respondent would not bargain with the Un-
ion and there was no chance for a consent election at
this point.
Subsequently, at a meeting on February 4, nine em-
ployees signed a statement that they voluntarily desired
union representation and believed the Company would
not want them to join the Union. While Shafer and
Marsh attended the meeting, they did not sign the
statement. Shafer resigned from Respondent's employ
on February 6.
LINDEN LUMBER DIV, SUMMER & CO.
On February 6, Norman presented the statement to
the plant manager who said that he would refer the
matter to Rector . On February 8, Rector wrote Nor-
man that the Respondent refused to recognize the Un-
ion because its membership included supervisors who
influenced employees , therefore , Respondent's recogni-
tion would violate Section 8(a)(2). The letter also stated
that the Union had the opportunity to prove its claim
before the National Labor Relations Board , but with-
drew its petition . The letter concluded that although
the Board should decide this matter, it is "powerless"
to do so because of the withdrawal of the RC petition.
On February 15, the employees went out on strike in
support of the Union 's demand for recognition. Ini-
tially , Marsh did not join the strike on union instruc-
tions not to do so because his status as a supervisor was
in question . On February 27, Marsh ceased work, ap-
parently joining the strikers . The Union filed its charge
of refusal to bargain on February 23, and the strike
ended on June 1.
At the end of the strike Respondent refused to rein-
state Marsh and another striker , Alexander. Marsh was
refused reinstatement on the ground that he had quit.
Alexander was refused on the strength of Respondent's
belief that he had provoked and participated in a vio-
lent incident related to the picketing at Respondent's
plant.
On these facts , the Trial Examiner concluded that
Respondent violated Section 8(a)(5) by refusing to
recognize the Union , that the strike which occurred
was an unfair labor practice strike , and that Marsh and
Alexander were unlawfully denied reinstatement in vi-
olation of Section 8(a)(3). The Trial Examiner 's recom-
mended remedy included a direction to Respondent to
recognize and bargain with the Union . We disagree
with the Trial Examiner 's conclusion that Respondent
violated Section 8(a)(5), and we reject the conclusion
that the strike was an unfair labor practice strike. We
conclude nevertheless that Marsh and Alexander, as
economic strikers , were wrongfully denied reinstate-
ment in violation of Section 8(a)(3).
Our conclusion that Respondent violated Section
8(a)(3) requires , as a threshold matter , that we examine
the nature of the violations and their probable impact
on Respondent 's employees in order to determine
whether an order to bargain is an appropriate remedy
for those violations under the standards of N. L. R. B. v.
Gissel Packing Co., 395 U .S. 575 ( 1969). Gissel estab-
lishes our discretion to impose a remedial order to
bargain in any case where we find that "the possibility
of erasing the- effects of past practices and of ensuring
a fair election (or a fair rerun) by the use of traditional
remedies , though present, is slight and that employee
sentiment once expressed through cards would , on bal-
ance , be better protected by a bargaining order ... "
Id., 614-615. We conclude that Respondent 's viola-
719
tions here did not have such an impact on the em-
ployees that a fair and truly representative election
could not have been conducted . We reach this conclu-
sion upon assessment of the extensiveness of the prac-
tices, their effect on election conditions (although the
Union withdrew its petition and no election was con-
ducted) and the likelihood of their recurrence . We rely
on the facts , among others , that the violations were
quite distant in time from the start of the union organ-
izing campaign and occurred under circumstances
which could not readily be regarded by other em-
ployees as retribution for any organizing activity. Nor
are we persuaded that there is substantial likelihood
that such practices will recur . The Respondent here
declined to reinstate the two employees for reasons
which do not suggest far-reaching union animus:
Marsh was thought by Respondent , albeit mistakenly,
to be a supervisor ; Alexander was thought to have
engaged in picket line misconduct . Although we now
conclude that Respondent 's defense as to each is insuffi-
cient , and that each violation occurred , we cannot as-
sume , on these facts , that Respondent was motivated,
in either case , by other than a good-faith belief in the
propriety of its actions . Such impact as there may have
been will, in any event , be substantially erased by our
traditional remedy of reinstatement , backpay, and
posting of notices.
We next consider whether, aside from the rationale
of Gissel, an order to bargain may be imposed on the
ground that Respondent violated Section 8(a)(5) by
refusing to recognize and bargain with the Union fol-
lowing the Union 's proffer of authorization cards from
a majority of Respondent 's employees.
We recently held in Derse, Arthur F., Sr., President,
and Wilder Mfg. Co., Inc.,' that mere refusal to recog-
nize on the strength of a card showing was not enough
to support a finding of an 8(a)(5) violation . We did,
however , find a violation under the facts of that case
where the employer had independent knowledge of the
union 's majority status and where no effort was made
to resolve any possible majority status issue through
resort to Board election procedures.
In the instant case we must evaluate a refusal to
recognize the Union on the strength solely of its au-
thorization cards, an abortive Board election proceed-
ing, and then a strike . The election proceeding was
terminated by action of the Union in withdrawing its
petition although that withdrawal appears to have been
motivated by the precipitate declaration of Respond-
ent's representative that "if [the Board] holds an elec-
tion, the Company will not bargain with the Union."
This statement in turn was motivated by the Hearing
Officer 's ruling that evidence of possible supervisory
taint of the showing of interest would not be received
' 185 NLRB No 76
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hearing, since the investigation of showing of
interest is an administrative matter which cannot be
litigated in the course of a representation proceeding.
Subsequently, the Employer's representative offered to
consent to an election if the Union submitted a new
petition supported by a "fresh" 30-percent showing of
interest.
The facts of this case demonstrate the difficulties of
attempting to interpret and apply Section 8(a)(5) of the
Act to situations in which the Union's majority status
has not been established through our election pro-
cesses, and where the record does not contain evidence
of independent unfair labor practices which would jus-
tify a bargaining order under Gissel.
At the outset, we note that in Gissel the Supreme
Court did not face this issue and explicitly refrained
from providing any guidance in this area. Rather, after
setting forth its understanding of the positions of the
parties as to a proper interpretation of the law applica-
ble to the cases then at bar, the Court declared that it
"need not decide whether a bargaining order is ever
appropriate in cases where there is no interference with
the election processes." Id., 595. Later in its opinion
the Court reiterated and elaborated upon this point:
In dealing with the reliability of cards, we
should re-emphasize what issues we are not con-
fronting. As pointed out above, we are not here
faced with a situation where an employer, with
"good" or "bad" subjective motivation, has re-
jected a card-based bargaining request without
good reason and has insisted that the Union go to
an election while at the same time refraining from
committing unfair labor practices that would tend
to disturb the "laboratory conditions" of that elec-
tion. We thus need not decide whether, absent
election interference by an employer's unfair labor
practices, he may obtain an election only if he
petitions for one himself; whether, if he does not,
he must bargain with a card majority if the Union
chooses not to seek an election; and whether, in
the latter situation, he is bound by the Board's
ultimate determination of the card results regard-
less of his earlier good faith doubts, or whether he
can still insist on a Union-sought election if he
makes an affirmative showing of his positive rea-
sons for believing there is a representation dispute.
In short, a union's right to rely on cards as a freely
interchangeable substitute for elections where
there has been no election interference is not put
in issue here; we need only decide whether the
cards are reliable enough to support a bargaining
order where a fair election probably could not
have been held, or where an election that was held
was in fact set aside. [Id., 601, fn. 18.]
The resolution of the instant proceeding now re-
quires the Board to face and decide one of the difficult
issues which the Supreme Court left open in Gissel:
whether , absent election interference , an employer who
insists on an election must initiate the election by his
own petition . Board precedent on the issue is some-
thing less than a model of clarity . The "current prac-
tice" of the Board was summarized in Gissel as follows:
Under the Board 's current practice , an employer's
good faith doubt is largely irrelevant , and the key
to the issuance of a bargaining order is the com-
mission of serious unfair labor practices that inter-
fere with the election processes and tend to pre-
clude the holding of a fair election . Thus, an
employer can insist that a union go to an election,
regardless of his subjective motivation , so long as
he is not guilty of misconduct ; he need give no
affirmative reasons for rejecting a recognition re-
quest , and he can demand an election with a sim-
ple "no comment" to the union . The Board
pointed out , however, ( 1) that an employer could
not refuse to bargain if he knew, through a per-
sonal poll for instance , that a majority of his em-
ployees supported the union , and (2) that an em-
ployer could not refuse recognition initially
because of questions as to the appropriateness of
the unit and then later claim , as an afterthought,
that he doubted the union 's strength . [Id., 594.]
There is some question as to whether the summary
is entirely accurate . The statement that an employer
could not refuse to bargain "if he knew, through a
personal poll for instance , that a majority of his em-
ployees supported the union ," may well have referred
to Snow, Fred, Harold Snow and Tom Snow, d/b/a
Snow & Sons, 134 NLRB 709, enfd . 308 F .2d 687 (C.A.
9). But the decision in that case rested not only on the
fact of employer knowledge, but also upon the fact that
the employer breached his agreement to permit
majority status to be determined by means other than
a Board election . That case must be distinguished from
our recent decision in Wilder, supra. There we found
an 8(a)(5) violation not only because of admitted em-
ployer knowledge of majority status, but also because
of the absence of any evidence that the employer was
willing to resolve any lingering doubts of majority
status through our election procedures.
The facts of the present case have caused us to reas-
sess the wisdom of attempting to divine , in retrospect,
the state of employer (a) knowledge and (b) intent at
the time he refuses to accede to a union demand for
recognition . Unless , as in Snow & Sons, the employer
has agreed to let its "knowledge" of majority status be
established through a means other than a Board elec-
tion , how are we to evaluate whether it "knows" or
whether it "doubts" majority status? And if we are to
let our decisions turn on an employer 's "willingness" to
LINDEN LUMBER DIV., SUMMER & CO.
have majority status determined by an election, how
are we to judge "willingness " if the record is silent, as
in Wilder, or doubtful, as here, as to just how "willing"
the Respondent is in fact ? We decline , in summary, to
reenter the "good-faith" thicket of Joy Silk,I which we
announced to the Supreme Court in Gissel we had
"virtually abandoned ... altogether," id., 594.
These considerations lead us to the conclusion that
Respondent should not be found guilty of a violation of
Section 8(a)(5) solely upon the basis of its refusal to
accept evidence of majority status other than the results
of a Board election . We repeat for emphasis our reli-
ance here upon the additional fact that the Respondent
and the Union never voluntarily agreed upon any
mutually acceptable and legally permissible means,
other than a Board -conducted election , for resolving
the issue of union majority status. By such reliance we
recognize and encourage the principle of voluntarism
but at the same time insure that when voluntarism fails
the "preferred route" of secret ballot elections is availa-
ble to those who do not find any alternative route ac-
ceptable.
We shall, therefore , dismiss the 8 (a)(5) allegations of
the instant complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Linden
Lumber Division, Summer & Co., Columbus, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Truck Drivers Un-
ion Local No. 413, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other labor organization,
by discriminatorily failing or refusing upon their un-
conditional request to reinstate any of its employees
who have engaged in a strike and are lawfully entitled
to reinstatement, or by discriminating against its em-
ployees in any other manner in regard to hire or tenure
of employment or any term or condition of employ-
ment.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Richard E. Marsh and Richard L. Alex-
ander immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seni-
ority or other rights and privileges, and make them
' Joy Silk Mills, Inc., 85 NLRB 1263, enfd as modified 185 F 2d 732
721
whole in the manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy."
(b) Notify the said employees if presently serving in
the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to determine the amount of backpay
due and to analyze reinstatement rights under the
terms of this Order.
(d) Post at its premises in Columbis, Ohio, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 9, after being duly signed by Respond-
ent's representative, shall be posted by Respondent im-
mediately 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 said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the com-
plaint herein be, and it hereby is, dismissed insofar as
it alleges violations of the Act not found herein.
MEMBERS FANNING AND BROWN, dissenting:
For the reasons explained below, we would affirm the
Trial Examiner's finding that the Respondent's refusal
to recognize and bargain with the Union violated Sec-
tion 8(a)(5) of the Act and that, in the circumstances
presented, a bargaining order is clearly warranted.
Under settled Board and court policy, an employer,
when confronted by a recognition demand based on
authorization cards allegedly signed by a majority of
his employees, does not automatically violate Section
8(a)(5) of the Act if he declines such demand and in-
sists, instead, upon an election requesting the union to
file a representation petition or filing it himself under
Section 9(c)(1)(B) of the Act.' Such violations are most
frequently found where the employer's denial of recog-
nition is accompanied by independent unfair labor
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
' See discussion of NL R B v Gissel Packing Company, Inc., 395 U S
575, infra
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices impeding the Board 's election processes. This
is not to say, however, that such unlawful conduct is an
indispensable prerequisite to an 8 (a)(5) finding , or that,
absent such independent unfair labor practices, em-
ployers are necessarily free to decline recognition until
the union shall have been certified. Thus, an employer
may not avoid or delay his statutory obligation to bar-
gain where there is no real dispute that a union repre-
sents a majority of his employees and the refusal to
bargain is founded upon considerations extraneous to
the union's majority status.' In the absence of such a
dispute, an employer violates Section 8(a)(5) of the Act
if his refusal to bargain is based , for example, on an
erroneous view of the law,' or an erroneous belief that
the unit requested by the union is inappropriate,' or
that the union representatives were under a legal disa-
bility which prevented them from binding the union,'
or that his employees were independent contractors.'
Similarly , an employer , having satisfied himself (by
card check, independent poll of the employees, or by
other means) that a union enjoys the support of a
majority of his employees, may not thereafter assert a
doubt of the union 's majority as grounds for refusing
to bargain and insisting on an election ." In Snow &
Sons, supra, for example, we held, with court approval,
that the employer violated Section 8(a)(5) where, hav-
ing agreed to be bound by an independent check of a
union's authorization cards to resolve his doubt as to
the union's majority status-which check substantiated
the union 's claim of majority-the employer reneged
on his agreement by continuing to refuse to bargain and
insisting upon an election.
Briefly, the facts in this case show that, in response
to the Union 's initial recognition demand, the Re-
spondent, on January 6, 1967, replied that it did not
believe that the Union represented a majority and sug-
gested that the Union petition the Board for an elec-
tion. The Union had already filed such a petition on
January 5. On February 3, when the parties met for a
prehearing conference pursuant to the Union 's petition,
the Respondent announced that it would not bargain
with the Union in any event-even if it were certified
by the Board after winning an election-because it con-
tended that the Union represented supervisors (Marsh
and Shafer) who influenced the employees in signing
' H & W Construction Company, Inc, 161 NLRB 852, 854-855, and
cases cited therein
s Old King Cole, Inc v N.L.R B., 260 F 2d 530, 532 (C A 6)
United Aircraft Corporation v NLRB, 333 F 2d 819, 833 (C A 2),
cert denied 380 U S 910, Florence Printing Co. v N.L.R B. 333 F 2d 289
(CA 4)
NL R B v Burnett Construction Co., 350 F 2d 57 (C A 10)
° NLR B v Keystone Floors, Inc, d/b/a Keystone Universal Carpet Co,
306 F 2d 560, 564 (C A 3)
10 Snow & Sons, 134 NLRB 709, enfd 308 F 2d 687 (C A 9), cited with
approval in Gissel Packing Co., Inc., 395 U S. 575, Wilder Mfg Co, 185
NLRB No 76
authorization cards ." The Union thereupon withdrew
its petition and, after withdrawal was approved, the
Respondent 's representative , Rector, told the Union's
attorney , Smedstad , that if the Union submitted a
"fresh" 30-percent showing of interest the Company
would agree to a consent election.
At a meeting with the Union on the following day,
February 4, nine employees signed a statement that
they voluntarily desired to be represented by the Union
and that they believed the Company would not want
them to join the Union. Although alleged supervisors
Marsh and Shafer attended that meeting , they did not
sign the statement. Shafer resigned from Respondent's
employ on February 6. On that day the Union's repre-
sentative presented the employees ' statement of reaffir-
mation to the Company and, on February 8, Rector
wrote to the Union that the Respondent refused to
recognize the Union because its membership included
supervisors who influenced employees and that , there-
fore , recognition would violate Section 8 (a)(2) of the
Act. On February 15, a majority of the employees in
the unit went out on strike in support of the Union's
recognition demand . On advice of the Union , alleged
supervisor Marsh did not participate in the strike, as
his status was in dispute.
Based on the foregoing facts , which our colleagues
do not dispute , it is clear that, at the time of the Re-
spondent's refusal to bargain on February 8, there was
no question and the Respondent had no doubt that a
majority of its employees supported the Union and
wanted the Union to represent them for purposes of
collective bargaining , and that its refusal was grounded
solely upon an erroneous belief that supervisors had
influenced the unit employees and that, therefore, the
Union's majority was tainted . In these circumstances,
we would find , for the reasons substantially as stated in
H & W Construction Company, Inc., 12 that the conten-
tions asserted by the Respondent for refusing to bar-
gain , being unrelated to the Union's majority status,
did not constitute an adequate defense to the refusal-to-
bargain complaint and that the refusal to bargain,
therefore , violated Section 8(a)(5) of the Act. For, nei-
ther the statement signed by the nine employees nor the
strike in which a majority of the employees openly
reaffirmed their support of the Union indicated any
participation or influence by alleged supervisors. Fur-
thermore, the record establishes, and the Trial Exam-
iner found , that Marsh was not a supervisor and, in
light of the facts, the Respondent 's contention to the
contrary borders on frivolity. As to Shafer, whom the
Trial Examiner found to be a supervisor , there is no
evidence that he influenced the employees to support
" Alleged supervisors Marsh and Shafer attended this conference as
employee representatives of the Union Their status is discussed, infra
" 161 NLRB 852, 854-855
LINDEN LUMBER DIV., SUMMER & CO.
the Union. In fact, and because their status was in issue,
neither Marsh nor Shafer signed the statement in which
a majority of the employees reiterated their voluntary
allegiance to the Union. In addition, Shafer resigned
from the Respondent's employ on February 6, 2 days
before the Respondent refused to bargain with the Un-
ion on grounds of alleged supervisory influence. There-
fore, even assuming, arguendo, that Shafer's presence
at the February 4 union meeting may have indirectly
influenced employees (a finding which we do not make)
such influence would have been completely dissipated
and neutralized by his resignation, and therefore, he
could certainly not have improperly influenced the em-
ployees in their concerted decision to go out on strike
on February 15.
Our colleagues, on the other hand, find that a bar-
gaining order is not warranted under the principles
enunciated in Gissel," since the Respondent's unfair
labor practices here were not such as would preclude
the holding of a fair election, and that, therefore, this
case raises the very issues which the Supreme Court
expressly left unanswered in Gissel.•'° whether, absent
election interference, an employer who insists upon an
election must initiate the election by his own petition.
We fail to perceive how the facts of this case put that
question squarely in issue here. For, the record clearly
establishes that the employer did not insist upon an
election, or even want an election. Nor was the em-
ployer's refusal to bargain at any time based upon an
asserted doubt of majority or any other issue resolvable
through an election. To the contrary, the Respondent
had knowledge, independently of the authorization
cards, that a majority of its employees supported the
Union and not only refused to bargain because of con-
siderations extraneous to the Union's majority, but ex-
pressly and completely rejected the idea of going to an
election by aggressively announcing that it would not
bargain even if the Union were certified pursuant to a
Board election. This assertion directly caused the Un-
ion to withdraw its petition as a wholly futile route for
resolving any question of majority status and, in our
view, tainted the possibility of holding a fair and mean-
ingful election. As the operative facts herein are undis-
puted, the majority opinion raises and resolves issues
not germane to this case.
What disturbs us more, however, is that the majori-
ty's resolution of the foregoing issue ignores the guide-
lines provided in Gissel, supra, and overrules, without
N.L R B v Gissel Packing Company, Inc., 395 U S 575
" Because the employer's refusal to bargain in Gissel was accompained
by independent unfair labor practices tending to preclude the holding of a
fair election, the Supreme Court said. " . we need not decide whether a
bargaining order is ever appropriate in cases where there is no interference
with the election processes " Supra, 595, see also p 601, fn 18, set forth
in text of majority opinion
723
specifically so stating, our recent decision in Wilder15
which followed those guidelines in resolving that same
issue. To the extent relevant here, the Supreme Court's
Gissel opinion, aside from its specific holdings, is note-
worthy in that: (1) it expressly reaffirms the historical
interpretation of the Act with respect to an employer's
bargaining obligation under Section 8(a)(5) whenever
the union presents "convincing evidence of majority
support" and the propriety of establishing subh obliga-
tion by means other than a Board-conducted election;"
and (2) it rejects the contention that Section 9(c)(1)(B)
of the Act gives employers an absolute right to an
election at any time and finds, instead, that subpara-
graph (B) of Section 9(c)(1) was enacted to allow an
employer, after being asked to bargain by a union
claiming to represent a majority of his employees, to
test out his doubts as to the union's majority."
The Board adhered to these principles in Wilder,
supra. Although the employer's refusal to bargain in
that case was not accompanied by independent unfair
labor practices, the Board nevertheless held that a bar-
gaining order was appropriate, because the record con-
tained substantial evidence, in addition to the signed
authorization cards, to demonstrate the employer's
knowledge of majority status, and no evidence demon-
Wilder Mfg Co, Inc., 185 NLRB No 76
In discussing whether a union can establish a bargaining obligation by
means other than a Board election, the Supreme Court said
A union is not limited to a Board election, however, for, in addition to
§ 9, the present Act provides in § 8(a)(5) . that "[i]t shall be an unfair
labor practice for an employer to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of section
9(a) " Since § 9(a) refers to the representative as the one "desig-
nated or selected" by a majority of the employees without specifying
precisely how that representative is to be chosen, it was early recognized
that an employer had a duty to bargain whenever the union representa-
ti ve presented "convincing evidence of majority support. " Almost from
the inception of the Act, then, it was recognized that a union did not
have to be certified as the winner of a Board election to invoke a
bargaining obligation , it could establish majority status by other means
under the unfair labor practice provision of § 8(a)(5)-by showing
convincing support, for instance, by a union-called strike or strike vote,
or, as here, by possession of cards signed by a majority of the employees
authorizing the union to represent them for collective bargaining pur-
poses [Footnotes omitted ] [Emphasis supplied.]
We have consistently accepted this interpretation of the Wagner Act
and the present Act, particularly as to the use of authorization cards
Thus we pointed out in [United Mine Workers v Arkansas
Flooring Co, 351 U S 62 (1956)], where the union had obtained signed
authorization cards from a majority of the employees, that "[i]n the
absence of any bona fide dispute as to the existence of the required
majority of eligible employees, the employer's denial of recognition of
the union would have violated § 8(a)(5) of the Act " 351 U S , at 69
We see no reason to reject this approach to bargaining obligations now
[Gissel, supra, 596-598 ]
• " The Court, at page 600, expressly "agree[d] that the policies reflected
in Section 9(c)(1)(B) fully support the Board's present administration of the
Act (see supra, at 591-592) " This latter reference is to the Court' s summa-
tion of the Board's current practice, to wit
When confronted by a recognition demand based on possession of cards
allegedly signed by a majority of his employees, an employer need not
grant recognition immediately, but may, unless he has knowledge inde-
pendently of the cards that the union has a majority, decline the union's
request and insist on an election, either by requesting the union to file
an election petition or by filing such a petition himself under §
9(c)(1)(B) [Emphasis supplied ] Gissel, supra, 591
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strating the employer 's willingness or desire to resolve
any doubts which it may have entertained through the
election process .'8 That decision , in our opinion, is
sound law and reflects long-established principles
which the Supreme Court reaffirmed in Gissel, supra.
The majority, on the other hand, would now quietly
overrule Wilder and find that, except for an election, a
bargaining obligation under Section 8(a)(5) may be es-
tablished only in situations such as prevailed in Snow
& Sons. " where the employer having agreed to abide by
the results of a private poll of his employees, subse-
quently reneged on that agreement when the poll
confirmed the union's claim of majority.20 We cannot
accept this limited approach to determining an em-
ployer 's bargaining obligation as we believe it is con-
trary to well-established law. It is significant that the
Supreme Court, in Gissel, supra, expressly cited union-
called strikes or strike votes as examples of "convincing
evidence of majority support" upon which a union may
rely to invoke a bargaining obligation under Section
8(a)(5).
In view of all the foregoing, we would find that the
Respondent's refusal to bargain with the Union on and
after February 8, 1967, violated Section 8 (a)(5) of the
Act and that, in all of the circumstances , a bargaining
order is clearly warranted.
11 The Board based its finding of employer knowledge upon the fact that
all 11 of the 18 unit employees who had signed authorization cards
"dramatically evidenced their support for the Union by actively participat-
ing in a picket line and a strike " and the employer 's concession that it knew
that 10 or 11 employees in the unit supported the union Wilder, supra
19 Snow & Sons, 134 NLRB 709, enfd 308 F 2d 687 (C A 9)
30 Indeed, in our view, this case is not unlike Snow & Sons, supra, since
the Respondent had agreed to go to a consent election if the Union submit-
ted a "fresh" 30-percent showing of interest , and thereafter reneged on its
promise when the Union submitted such showing which indicated that a
clear majority supported the Union
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or ac-
tivity on behalf of Truck Drivers Union Local No.
413, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, by
discriminatorily failing or refusing to reinstate any
of our employees or by discriminating in any other
manner in regard to hire or tenure of employment
or any term or condition of employment, except as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL offer Richard E . Marsh and Richard
L. Alexander immediate and full reinstatement to
their former jobs or , if those jobs no longer exist,
to substantially equivalent positions , without
prejudice to seniority and other rights and privi-
leges.
WE WILL make the said Marsh and Alexander
whole for any loss of pay suffered as a result of
refusing to reinstate them.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above-named Union or any other labor organization.
LINDEN LEMBER
DIVISION, SUMMER
& Co.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Office Building, Room 2407, 550 Main
Street, Cincinnati, Ohio 45202, Telephone 513-684-
3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: Upon separate
charges filed by Truck Drivers Union Local No. 413, affi-
liated with International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America , herein called
the Union, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 9, issued
complaints which on July 31, 19671 were consolidated for
hearing, against Linden Lumber Division, Summer & Co.,
herein called the Respondent. Briefly stated, the complaints
alleged that the Respondent had unlawfully refused to bar-
gain with the Union, thereby causing an unfair labor practice
strike, and that it had discriminatorily refused to reinstate
two employees, all in violation of Section 8(a)(5), (3), and (1)
' Unless otherwise indicated, all dates refer to the year 1967 The charges
in Case 9-CA-4197 were filed February 23 and the complaint issued May
24, in Case 9-CA-4283 charges were filed on May 25 and the complaint
issued on July 31, and in Case 9-CA-4309 the charges were filed on June
8 and the complaint issued on July 31
LINDEN LUMBER DIV, SUMMER & CO
of the Act. The Respondent answered, admitting certain alle-
gations but denying the commission of any unfair labor prac-
tices; by way of affirmative defense, it alleged in substance
that the Union was formed by supervisors of the Respondent
and was not, therefore, entitled to recognition. As to the
alleged discrimination against two employees, it averred that
one, Richard Marsh, was a supervisor who "established and
dominated" the Union and as to Richard L. Alexander, that
he "participated in an act of violence against two customers
of Respondent during the strike" and in consequence was not
entitled to reinstatement.
Pursuant to notice, I heard the case in Columbus, Ohio, on
October 3 and 4. All parties were represented and were
afforded full opportunity to participate in the hearing. Briefs
filed by each of the parties have been considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation engaged in the
manufacture of prefabricated homes and the sale of lumber
products at its plant in Columbus, Ohio. It annually has a
direct inflow of products valued in excess of $50,000 which
it obtains from points outside the State of Ohio. The Re-
spondent admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
Truck Drivers Union Local No. 413, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
On December 28, 1966, William Martin, an employee of
the Respondent, called Dow Norman, business agent and
organizer of the Union, advising that the Respondent's em-
ployees desired to join the Union and have it act as their
collective-bargaining representative. As a result of this call,
12 employees, including Marsh and Alexander, the alleged
discnminatees, attended a meeting with Norman on Decem-
ber 29, 1966, at a restaurant in Columbus. All signed authori-
zation cards on behalf of the Union.
On January 3, Mit Duncan, Secretary-Treasurer of the
Union, wrote to the Respondent, attention William Riley,
general manager, stating that the Union had been designated
as the collective-bargaining representative by a majority of
the Respondent's "truck drivers, warehousemen, production
workers, maintenance men and yard men." He demanded
that the Respondent recognize the Union as "the agent for
collective bargaining for these employees." The Respondent
replied on January 6, stating that it did not "believe that your
Union does represent a majority," declining to grant recogni-
tion, and suggesting that the Union petition the Board for an
election as that procedure "is the proper way to determine
such questions."
In the meantime, on January 5, the Union did file a petition
for a representation election (Case 9-RC-7096), describing
the appropriate unit as consisting of "All truck drivers, ware-
housemen, production workers, maintenance men and yard
men," excluding "office, clerical, supervisory and profes-
sional employees, guard, watchmen and all others excluded
by the Act." In response to the Regional Director's request
for a list of employees "falling within the alleged appropriate
725
unit," the Respondent replied on January 9, attaching a "list
of employees who perform duties in the general classifications
listed in the petition."'
A representation hearing on the Union's petition was
scheduled for February 3. When the parties met for the hear-
ing, the Union was represented by Victor Smedstad, attorney,
Business Agent Norman; and employees Marsh and Shafer.
The Respondent was represented by Harvey Rector, labor
consultant; General Manager Riley; Dispatcher Robert Du-
pree; Yard Foreman Roy Toops; and employees William
Lynch and William Mason. At the outset of the representa-
tion proceeding, and before the Hearing Officer formally
opened the hearing, Mr. Rector and Attorney Smedstad,
together with the hearing officer, engaged in a discussion,
following which the Union signed a request to withdraw its
petition.
In this proceeding, Attorney Smedstad testified in some
detail regarding this discussion, and, although other wit-
nesses (Norman, Marsh, and Riley) also testified concerning
this episode, their accounts do not materially vary from that
of Smedstad. I accept Smedstad's testimony, principally on
the ground that it is not contradicted and because he im-
pressed me as the more likely, in view of his legal training and
experience, to understand the somewhat technical aspects of
the discussion. The findings which next follow are based upon
his version.
Mr. Smedstad inquired of Mr. Rector if there was any
possibility of entering into a consent election agreement. Rec-
tor replied there was not. The Hearing Officer then asked
Rector whether he would stipulate that the Union was a labor
organization within the meaning of the Act, and Rector re-
plied he could not so stipulate, because, he said, the Union
had been organized by supervisors of the Company and it
would, therefore, be unlawful for the Company "to recognize
any union that had been organized by supervisors." After
some further discussion Rector agreed that the Union, as
such, was a labor organization within the meaning of the Act,
but stated that he wanted "to go on the record and make a
record on the way in which this union was organized" and
to show that "supervisors ... coerced some of the employees
into signing cards." Mr. Jack Baker, the Hearing Officer, then
stated that the Union's showing of interest was not a matter
to be litigated in the representation proceeding. The following
exchange then occurred, as related by Smedstad:
. Mr. Rector said, "You mean you are denying me the
right to make a record, to have a record?" And Mr.
Baker said, "Well, on this issue of how the union got its
showing of interest, I will not hear this evidence."
Mr. Rector said, "Well, if you are going to deny me the
right of the record on this, then the Board can do what
it wants to. If it holds an election, the company will not
bargain with the union."
Mr. Smedstad thereupon obtained a recess and discussed
the situation with officials of the Union. Returning to the
hearing room, he asked the Hearing Officer for a withdrawal
form. This was signed by Smedstad, without objection from
Mr. Rector. Later, before leaving the hearing room, Smed-
stad and Rector had a conversation, the substance of which
was that under no circumstances would Rector enter into a
consent election agreement, even if the Union obtained a new
showing of interest, saying that it was through the action of
' Included in the list of names, 15 in number, were Marsh and Alexander,
as well as Henry Shafer and Roy Toops At the hearing the parties stipulated
that Toops was a supervisor, the Respondent asserted that both Marsh and
Shafer were also supervisors
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors that they [the employees] signed up, and, there-
fore, we will not sit down and bargain with you."'
B. The Refusal to Bargain and the Strike
1. The Union's majority
Immediately following the conclusion of the February 3
meeting, Smedstad and Norman went to the Union's hall,
where Smedstad drafted three documents: a recognition
agreement which contained a clause whereby the Union
agreed to refer to the Board the unit status of such persons
as the parties could not agree were or were not supervisors;
a document for employees to sign, stating, in part, that they
wished the Union to represent them and that each "has
voluntarily attended the meeting at which this is being
signed" and each "has voluntarily signed" and "believes the
company would not want us to join Truck Drivers Union,
Local No. 413", and concluding with a request that the Re-
spondent recognize and bargain with the Union while the
employee and unit status of Marsh and Shafer was being
determined by the Board (G.C. Exhibits 8, 9, and 10).
Norman called a meeting of the employees on February 4,
at the union hall. Eleven employees attended, including
Marsh and Shafer. Norman informed the employees of what
had transpired at the scheduled hearing the day before and
distributed copies of the three documents prepared by Smed-
stad to nine of those present, but not to Marsh or Shafer,
stating that because their employee status was in question
they could not participate in the meeting in any manner. All
nine remaining employees, excluding Marsh and Shafer,
signed the statement expressing their voluntary desire to be
represented by the Union.
On February 6, Business Agent Norman took the docu-
ments referred to above to the Respondent's plant, and pre-
sented them to General Manager Riley. Norman credibly
testified that, after showing the papers to Riley, the latter said
he would refer the matter to Rector. Under date of February
8 Rector wrote to Norman, stating that the Respondent
"refuses to recognize your union as bargaining agent because
your membership includes supervisors . . who influenced
and dominated employees of the proposed unit." He added
that for the Respondent to extend recognition "would be in
violation of Section 8(a)(2) of the Act, because any signatures
you may have obtained under this [supervisory] influence
would not be legal." He further stated that "if there is a strike,
at this time, both your union and the supervisors in question
will be liable to suit for damages."
At the December 29 meeting 12 employees (assuming for
present purposes that Marsh and Shafer are not supervisors)
signed union authorization cards which were properly au-
thenticated at the hearing by Norman., At the February 4
meeting nine employees signed the document prepared by
Smedstad acknowledging that they voluntarily desired the
Union to represent them'
The complaint (Case 9-CA-4197) alleged, and the Re-
spondent's answer admitted, that the following unit is appro-
priate within the meaning of Section 9(b) of the Act:
All truck drivers, warehousemen, production and
maintenance employees and yard men at Respondent's
facility at 1850 Dunune Avenue, Columbus, Ohio, ex-
Rector did not testify
These were Richard Alexander, Frederick Baum, Homer R Beckel-
heimer, Melvin Brice , Roy L Hamilton, Gilbert Kountz, Norman LeVeck,
Richard Marsh, Bill A Martin, Floyd Ross , Henry Shafer, and John W
Thompson
' The employees signing were Alexander, Beckelheimer, Brice, Hamil-
ton, Kountz, LeVeck, Martin, Ross , and Thompson
cluding office clerical 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.
The parties stipulated that at all times material there were 10
employees in this unit.'
I find that at all times material the Union represented a
majority in the appropriate unit.
2. The employee status of Marsh and Shafer
a. Marsh
Marsh was first employed by the Respondent as a truck-
driver for approximately 3 years; in February 1965, he began
working as a truss maker in the truss department. While
employed in that capacity, he also drove a truck, operated a
forklift, worked in the yard, and unloaded boxcars. He gener-
ally reported to work at 7:30 a.m. and punched the timeclock.
According to Marsh's credited testimony, he spent an aver-
age of 90 percent of his time in the actual construction of
trusses, while the balance of his working time was devoted to
setting up jogs and other duties as set out above. He, as well
as LeVeck, answered the telephone and quoted prices to cus-
tomers from detailed price lists made available to them.
I credit Marsh's testimony that he was never advised by
anyone in management that he had any supervisory authority
as defined in Section 2(11) of the Act.7
The Respondent called several general contractors-Wil-
liam B. Luft, Walter Webb, and Joseph Betts-who testified
to the effect that they (the general contractors) had been
introduced to Marsh by members of Respondent's manage-
ment, as the truss superintendent Aside from the fact that
some of their testimony, which need not here be detailed, did
not impress me as worthy of credit, it is plain that the title
conferred upon Marsh by his superiors when the latter intro-
duced him to customers of the Respondent as the superin-
tendent of the truss department, is entitled to little if any
weight in determining his status.
Upon all the above I find that Marsh did not possess or
exercise supervisory authority at any times here relevant.
Accordingly I find he is to be included in the unit.'
' They further agreed that Toops was a supervisor General Counsel
contended that Marsh was nonsupervisory and therefore a member of the
unit , whereas the Respondent contended that he was supervisory With
respect to Shafer, the Union took no position as to his unit status, the
General Counsel reserved his position , while the Respondent contended
Shafer was "mill superintendent " Counsel for the Respondent further
stated Beckelheimer "became foreman in Shafer 's place when Shafer re-
signed on February 6 "
' General Manager Riley testified , in conclusionary terms , to the effect
that Marsh was a supervisor However, he admitted that Marsh had never
been carried on any company records, such as the payroll records, as having
a supervisory title, and that no notice was ever posted informing any of the
Respondent 's admitted nonsupervisory employees of Marsh's alleged super-
visory status William Dunfee, assistant manager, testified that he informed
Marsh in March 1965, that he was truss superintendent as the successor of
one John Phillips who had formerly been the truss superintendent and
whom Marsh replaced When Phillips held this position , he was paid a salary
of $135 or $150 per week When Marsh allegedly became truss superintend-
ent he was then receiving an hourly rate of $2 and did not receive an increase
in pay at that time Later in the year, Marsh received an increase When he
last worked for the Respondent , he was being paid $2 30 per hour , plus time
and one-half for work in excess of 40 hours per week
The objective facts , the conclusionary nature of Riley 's testimony and the
admissions made by him and the obviously evasive demeanor of both Riley
and Dunfee , convince me that they are not entitled to be credited unless
their testimony is corroborated by reliable and creditable oral testimony or
written documents
See N.L.R B. v Leland-Gifford Co, 200 F 2d 620, 625 (C A 1), where
the court observed "Certainly it cannot be that an employer can make a
LINDEN LUMBER DIV., SUMMER & CO
b. Shafer
As noted above , Shafer resigned on February 6, 1965. It is,
therefore , unnecessary for the purpose of this proceeding to
determine whether or not he occupied a supervisory position.
In any case , the evidence is inconclusive.
3. The strike and its nature
As found above , the Union was the majority representative
of the employees in the appropriate unit at all times here
material . Paragraph 8 of the complaint (Case 9-CA-4197),
alleged that the Union requested and thereafter continued to
request , following February 6 , that the Respondent bargain
collectively with it . Paragraph 9 alleged that on or about
February 8, and at all times thereafter, the Respondent
refused and has continued to refuse to recognize and bargain
in good faith with the Union by (a) refusing to grant recogni-
tion to it as the exclusive bargaining representative of the unit
employees , and (b) refusing to meet with the Union to discuss
rates of pay , wages, and other terms and conditions of em-
ployment . Paragraph 10 alleged that on February 15, "cer-
tain employees of Respondent employed in the said unit
... ceased work concertedly and went out on strike"; and
paragraph 11 alleged that the strike described above "was
caused and prolonged by the unfair labor practices of Re-
spondent" previously described in paragraphs 5 and 9.
In its answer to this complaint the Respondent denied the
pertinent paragraphs "for the good and following reasons":
(a) with respect to the representation hearing , previously re-
ferred to, it was the Respondent 's contention "that it could
not legally recognize a union comprised of supervisors"; (b)
it further stated that the claim of majority status was "based
on the allegation that 4 employees , led by three supervisors,
constitutes the majority of the employees of the respondent."
The answer further alleged that no union "is the exclusive
bargaining agent for the employees of respondent ," and that
the Union "requested recognition by sending the company a
list of names which included a supervisor ." Finally, the Re-
spondent alleged that Region 9 of the Board "has made it
clear that the respondent must bargain regardless of the
supervisory issue."9
'supervisor ' out of a rank -and-file employee simply by giving such an in-
dividual a title and theoretical power to perform some or all of the super-
visory functions listed" in Section 2(11) of the Act See also Quincy Steel
Casting Co , Inc, v NLRB, 200 F 2d 293-297 (C A 1), where the same
court said that "the important thing is the actual duties and the authority
of the employee , not his formal title " (Citing Red Star Express Lines v
NL R B 196 F 2d 78, 79-80 (C A 2).) In reaching the above conclusions
regarding Marsh's status, I have carefully considered the testimony of man-
agement representatives and the manager of Nugents - American Contrac-
tors, which organization on occasion supplies temporary labor to the Re-
spondent , and Marsh 's testimony about the manner in which he was
involved in such procurement of temporary labor I credit Marsh's tes-
timony in this regard , and that of Mr Dove, who in answer to a question
on cross-examination by Counsel for the General Counsel, whether orders
for temporary help "have also been signed by other employees of Linden
Lumber other than Richard Marsh9 " answered "Right "
The Respondent , in the concluding paragraph of its answer in Case
9-CA-4197, alleged that it "has never refused to bargain with a legally
constituted and designated or certified unit of its employees Respondent
does refuse to recognize its supervisors as union representatives because
such a union or unit thereof would be contrary to law " In support of this
affirmative defense the Respondent cites Wells, Inc, 68 NLRB 545 (1946),
in which the Board dismissed an allegation of violation of Section 8(5) of
the Wagner Act on the ground that " the Union 's majority was procured with
the direct and open assistance of a supervisory employee " and thus did not
"represent the free and untrammeled will of the employees and hence can-
not be recognized as [a] valid majority " The Court of Appeals for the Ninth
Circuit enforced the Board 's order , Wells, Inc v NL.R B , 162 F 2d 457,
but modified the portion thereof requiring the reinstatement of the foreman,
727
As found above , Marsh is not a supervisor and, accord-
ingly, is entitled to be and is included in the appropriate unit.
The status of Shafer need not be passed upon for the purpose
of this proceeding , inasmuch as he terminated his employ-
ment on February 6, and , in any event, his inclusion or exclu-
sion could not affect the result.
Under date of February 8, Mr. Rector , the Respondent's
labor consultant , replied to Norman 's request for recognition
which had been delivered to Rector on February 6, as follows:
The company refuses to recognize your union as bar-
gaining agent because your membership includes super-
visors ... who influenced and dominated employees of
the proposed unit . This position was made clear by the
company at the NLRB hearing February 3 , 1967 in Case
9-RC-7096 . Your union had the opportunity to prove
its claims before NLRB but withdrew its petetion (sic).
Therefore, the company can not recognize your union so
long as the supervisory influence exists. To do so would
be in violation of Section 8(a)(2) of the Act.
Rector's answer to Norman 's request continued that it was
his understanding from the Company that the Union "threat-
ened to strike ." He added that "if there is a strike , at this time,
both your union and the supervisors in question will be liable
to suit for damages." Concluding , Rector stated that the
Board "should decide this matter" but, in view of the fact that
the Union had withdrawn its petition , the "NLRB is power-
less to rule."
Attorney Smedstad, whose testimony I credit , gave the
following answers to the questions on cross-examination by
Mr. Rector:
Q. I have one question . Is it your testimony then that
you actually withdrew the petition because you did not
want to go through a long, lengthy litigation before the
Board?
A. Before the Board and before the Court of Appeals
which would , from my experience , take a good two years
or better.
Q. I daresay, you are right; but that is the reason you
withdrew your petition?
A. That is correct.
MR RECTOR Thank you. No further question.
TRIAL EXAMINER You are excused, Mr. Smedstad
Concerning the conference between Attorney Smedstad
and the employees and Norman prior to the conclusion of the
representation proceeding, Smedstad credibly testified that he
advised the employees and Norman that "regardless of how
it [the representation proceeding] turns out , it will be two
years in all likelihood before you can sit down and bargain
with this company. There is a possibility that through eco-
nomic action, in the way of a strike, the company might be
willing to sit down and bargain , without having to go through
any election ."' His further testimony, which I credit, is that
the employees and Norman, the union representative, told
found by the Board to have been discriminatorily discharged, who had been
responsible for the recruitment of his subordinate employees into the union
In addition , the Respondent cites Jack Smith Beverages, Inc, 94 NLRB
1401, where the Board ordered the disestablishment of an affiliated union
which it found to have been supported and dominated by the employer, in
violation of Section 8 (a)(2) of the Act , and NLR B. v Edward G Budd
Mfg Co., 169 F 2d 571 (C A 6), where the Court , following remand from
the Supreme Court of the United States (332 U S 840), modified its prior
order enforcing an order of the Board, issued prior to the 1947 amendment
of-the Act , so as to set aside (in agreement with the Board's contention)
these provisions of the previously enforced order of the Board directing the
employer there involved to cease and desist from discouraging membership
in the Foreman's Association of America , in any other manner interfering
with its supervisory employees ' efforts to bargain collectively through that
organization , and to post appropriate notices with respect to these matters
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that "it was their opinion that the employees were so
highly irritated because of the manner in which the company
was being run and the working conditions that all they would
have to do would be to drop a nickel in the phone box and
they would be out on the street right then and there." Smed-
stad thereupon told the union representatives and employees
that it was necessary for them to stick together, and that if
they felt the way they expressed themselves, he would ask the
union president for authority to withdraw the petition. He
then telephoned the union office and talked to Dale Mann,
president of the Union, recited to him what the problem
appeared to be, and received full authority to withdraw the
petition if he deemed that action advisable.
At the subsequent private conference between Smedstad
and Rector, the latter, according to Smedstad's credited tes-
timony, referred to the fact that he had known Robert C.
Knee, the attorney with whom Mr. Smedstad was associated,
for a good many years . Rector further added, again according
to Smedstad's credited testimony, that it had been the policy
of his organization "that whenever the union has a 30 percent
showing of interest that we are more than happy to enter into
a consent agreement ." Smedstad replied that he could assure
Respondent that the Union had "well over 30 percent" in this
situation, to which Rector retorted that it was his under-
standing from his investigation "that some supervisors have
coerced some employees into signing cards." Smedstad re-
joined that it was his understanding, as indicated by the
exhibits to which reference has heretofore been made, that
when the petition in the representation case was first filed, the
Respondent submitted a list of 14 names to the Regional
Office and advised that if the Union would agree to this list
the Company would be willing to go through a consent elec-
tion. To this, Mr. Rector rejoined: "Yes, that's when they
didn't know what they were doing, and when I came in on
the case, when I looked at that list, I found that the list was
not correct. For example, there was one individual who was
no longer working at the plant . . . " and "I understand that
one or two people on here are supervisors."
Respondent's brief to the Trial Examiner consists of some
four pages of argument , in which the following issues are
raised:
1. Did the Hearing Officer deliberately refuse to go on
the record so that Counsel for the Union would have
grounds to file the unfair labor practice charge?
2. Why did the Union withdraw its petition?
3. Why did the Regional Director permit the with-
drawal?
4. Why did the Hearing Officer refuse to go on the
record?
The brief asserts that all of the testimony contained in the
record creates a controversy "which was established by one
fact only-the Hearing Officer denied the respondent benefit
of record. In so denying the respondent his rights under the
law, he set up a `make weight' reason for the General Coun-
sel, based upon a charge by the union, to issue a complaint
seeking to force the respondent to bargain with said union
without an election or due process of law. If the General
Counsel is right and the statement of Rector is an unfair labor
practice then the combined actions and conduct of the Hear-
ing Officer, Counsel for the Union and the General Counsel
constitute a conspiracy to defraud the respondent."10
10 While it seems unnecessary to make any comment upon these argu-
ments , it may not be inappropriate to note that they are specious and, for
the most part , the citations in support thereof are distinguishable or wholly
inapposite
I conclude that the evidence in this proceeding clearly
establishes that the strike was caused by the unfair labor
practices of the Respondent in refusing to recognize the Un-
ion and by its other unfair labor practices as above described.
I find no merit whatever in the contention that the unit of
employees (or the Union for that matter) was dominated by
supervisors of the Respondent . By refusing to recognize and
bargain with the Union as the exclusive representative of its
employees , I find that the Respondent violated Sections
8(a)(5) and (1) of the Act, and that the strike which began
February 15, was caused by the Respondent's unfair labor
practices.
The parties agreed that the strike terminated on June 1,
and all employees who desired to return to work were reem-
ployed, with the exception of Marsh and Alexander. We turn
then to the alleged individual discrimination against Marsh
and Alexander.
C. The Discrimination Against
Marsh and Alexander
1. Marsh
When the strike commenced on February 15, Marsh did
not join in it for the reason that Norman had informed him
that his status as an employee was still in question and,
consequently, advised Marsh to continue working. Marsh did
work until February 27 and then told General Manager Riley
that the other employees who were working would not talk
to him , and were giving him "dirty looks" and that one
employee, Donald Alexander, was riding around with a Ger-
man Shepherd dog in his truck . In consequence , Marsh told
Riley that he did not think it was safe for him to continue
working and that he had concluded he should go home. In
response to Marsh's statement, Riley in substance stated that
Marsh was "quitting"; Marsh, however, replied that he was
"just going home until this union situation is straightened
around to where I felt I was safe in the truss plant." Approxi-
mately a month later (about the latter part of March) Marsh
returned to the plant and told Riley that, since matters
seemed to have quieted down, he was ready to return to work.
At this point I find, in accordance with the credited testimony
of Marsh, that Riley told him he (Marsh) had quit."
I find that Marsh did not quit on February 27, but, with
Riley's consent, absented himself from work because of the
conditions then prevailing. Moreover, I conclude that Marsh
was, as an employee, a supporter of the strike from its incep-
tion, but, on advice of his union representative remained at
work between February 15 and February 27. I further con-
clude and find that when Marsh, during the latter part of
March, informed Riley that he was prepared to resume work-
ing inasmuch as the strike activities had apparently quieted
down, Riley informed him that he had quit, and, in effect,
discharged him because he was sympathetic with the Union's
cause.
Accordingly I find that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to permit Marsh to
return to work when he offered to do so in the latter part of
March. Moreover, I am persuaded and find that Marsh
became an unfair labor practice striker when he ceased work-
ing on February 27.
11 A careful check of Riley's testimony reveals no denial by him of the
foregoing testimony of Marsh
LINDEN LUMBER DIV., SUMMER & CO.
2. Alexander
It is not disputed that Alexander, who was employed by the
Respondent in August 1965, was at all times here material an
employee of the Respondent and that he went on strike Feb-
ruary 15 and continued to participate in it . About the end of
May he applied, in company with other strikers, for reinstate-
ment. General Manager Riley, under date of June 2, wrote
the following letter to Alexander:
We regret to inform you that we are unable to rein-
state you in your job because of your participation in
violence during the course of the strike.
Without undue lengthening of this Decison, I find, upon
the basis of the testimony from the proceeding before me and
the related testimony in the official record in the criminal
proceeding brought against Alexander (which resulted in his
acquittal) that the Respondent's defense with respect to Alex-
ander is without merit.
Admittedly, Alexander was arrested during the strike and
charged with assault. The matter came on for trial June 13,
before the Municipal Court of Columbus, Ohio. By stipula-
tion of the parties, the testimony of one Walter Lucas, one of
the complaining witnesses against Alexander, as contained in
the official transcript of the criminal proceeding brought
against Alexander, was received in evidence as "a true, accu-
rate and correct copy of the transcript" of those proceed-
ings.'Z Alexander was acquitted of the assault and battery
charges brought by Lucas as well as by one Robert Smith,
both of whom testified in the proceeding before me as wit-
nesses for the Respondent. Riley, who wrote the June 2 letter
to Alexander, refusing him reinstatement because of his al-
leged "participation in violence during the course of the
strike," was not examined with respect to the basis of his
knowledge of the assertion made in that letter."
The incident upon which the Respondent relies for not
reinstating Alexander occurred on Saturday, February 25.
During the preceding week, as Alexander credibly testified,
Smith "was blocking our picket line and started calling us
names ... and pulled off his coat and was going to fight," but
that he never had had any trouble with Lucas prior to Febru-
ary 25.
Smith and Lucas, both employees of Stoner Lumber Com-
pany, appeared at the Respondent's plant about noon on
February 25, and, according to Smith's testimony on direct
examination as a witness for the Respondent, the following
occurred:
Q. Could you explain what happened while you were
out there?
A. Well, we were sent out to pick up a forklift and, in
the meantime, they were still using it , around noon, so
we went on over to the Tip-Top to wait until they got
finished.
Q. By "we," who do you mean?
A. Me and Mr. Lucas.
" Rector's objection that the transcript had "no bearing upon this case"
was overruled, in support of his objection he characterized the transcript of
the Municipal Court proceeding as "a civil court transcript or record of the
testimony that was taken" and added that the June 2 letter to Alexander was
based upon "the information that reached the employer that he [Alexander]
was involved in it [the fracas]" and "that he was refused" reinstatement for
that reason.
" The Respondent produced as witnesses in support of the Respondent's
refusal to reinstate Alexander, only the witnesses Lucas and Smith Their
testimony not only does not establish that they gave any information about
the "fracas" to Riley, but for reasons briefly stated hereafter, I do not credit
their testimony implicating Alexander
729
Q. Okay, continue. What happened then?
A. Well, we went into the Tip-Top Club-
TRIAL EXAMINER You went in where?
THE WITNESS The Tip-Top Club, 3-C Highway. We
had us a drink in there, when these fellows all came in
and jumped us
After that, we proceeded to go back and get the fork-
lift and took it on back to the Stoner Lumber Company.
Q. What happened then at the Tip-Top?
A. There were six or seven fellows came in and
jumped us, and beat us up pretty good, and after that we
went on back over to the lumber company. They called
the police.
Q. You say six or seven fellows jumped you?
A. That's right.
Q. Did you recognize any of them?
A. Just two of them.
Q. And who were the two you recognized?
A. Richard Alexander and Bill Martin, William Mar-
tin.
Q. Did they strike any blows?
A. Yes, they did.
Q. Now, were these two, Alexander and Martin, ar-
rested?
A. Well, we filed charges against them. They were
arrested, yes, sir.
Q. And did you have a trial?
A. Yes.
Q. In court?
A. Yes, we did.
On cross-examination, Smith testified as follows:
Q. Did you testify at the trial on the charges brought
against Richard Alexander, by both you and Mr. Lucas?
A. Yes, I did.
Q. Were the charges which were brought against Mr.
Alexander-Based on those charges, was he found not
guilty?
A. I believe they found him not guilty.
Q. And do you know from your own knowledge that
the charges Mr. Lucas brought against Mr. Alexander
were also dismissed?
A. As far as I know.
Lucas, also a witness for the Respondent, testified on direct
examination as follows:
Q. Were you out at the Linden Lumber Company
during the strike?
A. Yes, sir.
Q. Could you tell us what happened?
A. Well, they sent me with Bob Smith, the forklift
operator, out there to haul this thing down to our yard.
There was a lot of shuffling going on out there. They
couldn't get the trailer loaded right away. They were
busy doing something else, so we walked over to the
tavern and we had a highball, and we were sitting there
drinking and talking and discussing things. We were
close to the front door and this group of guys come in.
Well, naturally, we turned. I never thought anything
about it. They walked by us, and we kept on talking.
Suddenly, there was a fracas and they had Bob on the
floor, and Martin and Alexander were beating him and
two other guys were there close, and I stood up. Bob got
away from them. They were going toward the back door
and I turned to see what had happened, and someone
struck me in the back of the head with something. It left
three cuts in the back of my head.
When I turned around, there were these fellows stand-
ing there, and somebody hit me in the ear, and I saw this
one big fellow that I had seen on the sidewalk there with
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rest of them fellows . He was coming at me, and I
pulled my pocketknife out and told him that if he struck
me I was going to use it on him , and someone hollered,
"He's got a knife , let's go," and that 's all. They left.
Q. Was that , then the end of the fight?
A. Yes, sir.
TRIAL EXAMINER What did you do next?
THE WITNESS We went out the back door , the way
we went in.
TRIAL EXAMINER Then where did you go?
THE WITNESS Over to the Linden Lumber Company.
TRIAL EXAMINER And got the forklift?
THE WITNESS Yes, sir. Well, we got the forklift and
took it back to our yard. Of course , they called the
police.
TRIAL EXAMINER Who called the police?
THE WITNESS Someone at Linden Lumber. I don't
know who did. The cruiser came up and took a report
on what happened . We took the forklift back to our yard,
and our boss took us down to the hospital and to the
police department to file assault and battery charges
against Alexander and Martin , that 's the only ones I
knew.
TRIAL EXAMINER You had known Alexander and
Martin?
THE WITNESS I didn 't know them real well. I had
seen them in the line-up, walking along the sidewalk.
TRIAL EXAMINER You had been out to the Linden
Lumber Company before this Saturday morning dunng
the strike?
THE WITNESS I don 't remember if I had been in there
or not , before that , during the strike.
Q. Now, then , were you down at the court hearing on
these charges?
A. Yes, sir.
Q. And did you testify?
A. Yes, Sir.
Q. Did you know Melvin Bice?
A. Yes, sir, by acquaintance and seeing him during the
strike . I don 't know him personally.
Q. Did you observe him down at the court house?
A. Yes, sir.
Q. Was he in the Tip -Top when this assault went on?
A. No, Sir.
On cross-examination , Lucas testified, in pertinent part, as
follows:
Q. Now, you say, Mr Lucas, that you testified. Was
this relative to the assault and battery charges you filed
against Mr . Alexander?
A. Yes.
Q. Mr. Lucas , do you personally know Mr. Alex-
ander?
A. No, sir.
Q. Had you , prior to going into the Tip-Top Cafe on
the day of the altercation , prior to that time seen Mr.
Alexander?
A. Yes, sir.
Q. Where had you seen Mr Alexander?
A. On the sidewalk ... at the Linden Lumber Com-
pany.
Q. You were not really sure who it was that hit Mr.
Smith and knocked him down?
A. That is right.
Q. You are not sure?
A. I seen Alexander and Martin beating on him after
I turned around and saw him on the floor.
Q How many guys were on top of Mr . Smith?
A. Martin, Alexander , and two other fellows were
there close . I don 't know if they had been or not, it all
happened in a flash.
Q. You didn' t know who had knocked Mr. Smith
down?
A. I know Alexander and Martin were beating on him
then.
Q. You don 't know who had knocked Mr. Smith
down?
A. I don' t know who knocked him off the stool.
Q. Mr. Lucas, didn 't you testify at the hearing on the
assault and battery charges that you only recognized one
of the fellows who was hitting Mr . Smith while Mr.
Smith was on the floor?
A. I don't remember that.
Q. You don't remember testifying in that manner?
A. No.
Q. Isn 't it a fact that you only recognized one of the
fellows that was hitting Smith , and that was Martin, Bill
Martin?
A. No, it isn't.
MR SMEDSTAD I have some questions.
Q. Mr. Lucas, you testified here that you cannot swear
that it was Mr. Alexander that hit you, is that right?
A. That's right . I was hit from the back.
Q. And at the hearing that was held on the assault
charges that you brought , isn't it correct that on exami-
nation from at least two different attorneys that you
testified that you did not know whether or not it was
Alexander? Isn't that correct?
A. I think probably.
Q. Were you under oath at that hearing?
A. Yes.
Q. And under oath you testified that you really didn't
know whether it was Alexander or not?
A. I think so.
In the criminal proceeding , brought by Lucas and Smith
against Alexander, the following testimony by Lucas is perti-
nent , in my opinion , relating to his and Smith 's visit to the
Respondent 's premises on February 25:
Q. Did you notice anything unusual about the prem-
ises of Linden Lumber Company?
A. I noticed there was a group of guys milling around,
yes, sir.
Q. Could you tell what they were doing?
A. Some of them were sitting in cars, some of them
dust standing around talking.
Q Notice any signs?
A. At that particular day, no, sir.
Q. All right . Did you recognize any of the men there?
A. Yes, sir.
Q. Who did you see?
A. I saw those two fellows there.
Q. Which two fellows?
A. Mr. Martin and Mr. Alexander.
Q. Had you known Mr. Martin and Mr. Alexander
prior to that day?
A. Only just to see them around the Linden Lumber
Company.
Q. Had you gone there previously?
A. Many times.
Q. Did you know them by name?
A. No, sir.
Q. Did you pick up the forklift at that time?
A. No.
LINDEN LUMBER DIV, SUMMER & CO
Q. Why didn't you?
A. Well, the yard men were busy unloading the truck,
so we backed the trailer into the loading dock and the
group of fellows out there cursing and one thing and
another-
Q. Cursing?
A. Yes, sir.
Q. Were they cursing at you?
A. I think so.
Q. Do you know why they were cursing at you?
A. I have an idea, because we were there But we
weren't doing any of their work.
Q. You mean it was a labor problem?
A. That's what I think.
Q. Where did you leave the truck?
A. In the Linden's yard.
Q. Where did you go from there?
A. We went over to a gull.
Q. You mean you and Mr Smith?
A. Yes, sir.
Q. Why did you go over there?
A. Just to get out of their sight. We didn't want to
create any disturbance. So, we walked away until the
yard men had time to load this lift for us. They said it
would be about a half hour or so.
Q. What did you do when you went over to the grill?
A. We got a highball, were sitting there talking.
Q. What happened then?
A. Well, we saw this group of fellows come in the door
... I'd say from five-four or five-to seven, dust a
group of guys walking in the door.
Q. Did you recognize any of them?
A. No, sir; I didn't recognize them as their names. I
know these two fellows ...
Q. You mean Mr. Martin and Mr. Alexander?
A. Yes, sir.... Well, first thing I knew, they had Mr.
Smith on the floor.
Q. How did he get there?
A. This Martin had hit him and another fellow; I
don't know the other guy.
Q. What happened after Mr. Smith was struck?
A. I was struck at the back of the head, some instru-
ment or something. I don't think anybody could have
done it with their fist.
Q. Do you know who struck you?
A. Mr. Alexander.
Q. What happened then? What did you do?
A. Well, I started-I was dazed. I was trying to get
off the stool, and I was struck again here two places.
Broke my glasses and burst my ear inside. I had to have
it sewed up, eight stitches in the back of my head.
Q. Did you go to the hospital directly from the tavern?
A. No, we took the forklift back to the yard and came
to the police station.
Q. In other words, you went back to the Linden Lum-
ber Company?
A. Went back to the Linden Lumber Company; yes,
sir.
Q. Did you see Mr. Alexander or Mr. Martin over
there?
A. Yes, sir.
Q. Did you have any discussion with them at that
time?
A. The police officer got Mr. Alexander and brought
him inside , the police sergeant.
731
Q. Did you call the police?
A. They called them at Linden Lumber, someone I
don't know.
Q. You don't know who called the police?
A. No, sir; I think it was probably the president of the
company, Mr. Riley.
On cross-examination by counsel for defendants Alexander
and Martin in the Municipal Court proceeding, Lucas gave
the following testimony:
Q. In your prior trips over to Linden Lumber, did you
notice this group of fellows milling around, as you said,
around the gates?
A. On a couple occasions; yes, sir ...
Q. All right. How long have you been driving a truck?
A. Twenty-six years.
Q. In this twenty-six years, how many times would
you say that you've been to lumber companies or differ-
ent places?
A. Oh, gee, that's my job. Every day.
Q. Have you ever seen groups of fellows milling
around any places that you'd been before?
A. Yes, sir.
Q. Do you know why they were there?
A. Only what I hear.
Q. What do you generally hear when a group of fel-
lows are standing around?
A. Well, it could be a lot of things.
Q. What?
A. Could be foreman ... labor dispute; could be a
personal grudge against the foreman....
Q. Do you know what a picket line is?
A. I'd say so.
Q. Do you have any instructions on what you're sup-
posed to do when you encounter a picket line?
A. Yes; but this was not a picket line.
Q. Oh, it's not?
A. No. There wasn't no union connected , as far as I
know. The company was union, and the men weren't
union , as far as I know.
Q How do you know that?
A. Only what I hear, I say.
Q. Who'd you hear that from?
A. Different fellows; I mean Linden Lumber them-
selves, representatives of Linden Lumber. And my su-
periors at Stoner.
Q. So, your superiors told you that this group of fel-
lows weren ' t a picket line?
A. True.
Q. Did you see Smith pull a knife?
A. No.
Q. Did you pull a knife?
A Yes
Q. When did you pull a knife?
A. After I got enough bearings to get on my feet and
saw this other guy coming at me.
Q. Who is the other guy?
A. I don't know. He was a big husky fellow. I
wouldn't know who he was. I pulled this knife out of my
pocket, and I said, "If you hit me one more time, I'll be
forced to use it," and I didn't even have it open.
Q. Okay. Now, you said that you were struck from
behind.
A. That's right.
Q. Did you see the man strike you from behind.
A. I saw this group of guys come in through the door.
When I turned around after the scuffle here, I didn't see
this Martin. I mean, Alexander. So, I never saw him hit
me, no, but I assumed that it was him ...
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. There were anywhere from four to seven guys that
could have thrown it?
A That's right.
Q. You picked Alexander.
A. That's who the man said it was, Mr. Smith.
Q Well, Smith said that's who hit yo'i?
A. That's true.
On re-cross-examination in that proceeding, Lucas
testified:
Q. Did you see Mr. Alexander strike Mr. Smith?
A. No, sir; I can't say that I did
Q Did you say the police arrived and then took Mr.
Alexander and Mr. Martin down to the police station
right then?
A. No, sir; I did not say that.
Q. Do you know when the police took Mr. Martin and
Mr. Alexander to the police station?
A. No, sir.
Before me Smith, recalled by the Respondent as a rebuttal
witness, testified that he did not have a knife when the alterca-
tion occurred at the Tip-Top Cafe. Lucas, on rebuttal, an-
swered to the same effect. He was not then asked whether he
had a knife; however, in the Municipal Court proceeding he
testified that he had with him, on February 25, "a Boy Scout
knife," which he did not open but "had it out of my pocket,
though."
Where the testimony of Lucas and Smith, on the one hand,
differs from that of Alexander, I credit the latter.'4
I find that the Respondent had no basis in fact for believing
Alexander was a participant in violence to the extent that he
is, by reason thereof, barred from reinstatement. Moreover,
I find that the reason advanced by the Respondent for refus-
ing him reinstatement is pretextuous and, therefore, violative
of Section 8(a)(3) and (1) of the Act.
D. Concluding Findings of Fact and of Law
Upon the basis of the foregoing findings of fact I make the
following concluding findings and conclusions of law:
1. At all times here material the Union has been and now
is the exclusive representative of the employees in the appro-
priate unit heretofore found.
2. The Respondent by the actions of its representative,
Labor Consultant Rector, at the February 3 meeting, and on
subsequent occasions as previously found, as well as by the
actions of General Manager Riley, unlawfully refused to bar-
gain with the Union as the exclusive representative of its
employees in the unit found appropriate, thereby violating
Section 8(a)(5) and (1) of the Act.
3. The strike which commenced on February 15, was
caused by the aforesaid unfair labor practices of the Respond-
ent.
4. Richard Marsh was at all times here relevant an em-
ployee of the Respondent and, when he ceased working on
February 27, joined the strike and thereby became an unfair
labor practice striker. When he sought to return to work
during the latter part of March, the Respondent mdepend-
" Melvin Bice, a striker who was reemployed and was working for the
Respondent at the time of the hearing, credibly testified that he went to the
Tip-Top Cafe with Alexander and Martin, that Smith, when Martin "got up
and went over to talk to Smith" "jumped up with a knife in his hand
and Bill Martin hit him, and they got into a fight." He further testified, and
I credit him, that Alexander made no physical contact with either Lucas or
Smith Martin admitted that he hit Smith "a couple or three times" when
Smith "turned around with a knife" as Martin "asked him [Smith] to respect
our picket line He further testified, and I believe him, that he did not see
Alexander attempt to or hit either Smith or Lucas, although he readily
admitted that he "was busy" at the time with Smith
ently violated Section 8(a)(3) and (1) of the Act by refusing
to reinstate him upon the ground, which I find lacking in
ment, that he had quit on February 27.
5. I find that, for the reasons heretofore stated, Alexander
was refused reinstatement for discriminatory reasons and not
because he had allegedly participated in acts of violence dur-
ing the course of the strike.
6. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
IV THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, as alleged in the complaint in this
consolidated proceeding, I shall recommend that it cease and
desist therefrom and take the necessary affirmative action to
effectuate the policies of the Act.
Since the Respondent unlawfully refused to reinstate
Marsh on February 27 and Alexander on June 1, when all the
other strikers were upon application reinstated, it will be
recommended that the Respondent offer them immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, discharging, if necessary, any replacements in
order to provide work for them It will also be recommended
that the Respondent make them whole for any loss of pay
they may have suffered by reason of the Respondent's dis-
crimination against them, by paying to each of them a sum
of money equal to the amount he normally would have earned
as wages from the date the unconditional application was
effective, to the date of the Respondent's offer of reinstate-
ment, less his net earnings during said period. The amount of
backpay due shall be computed according to the Board's
policy set forth in F W. Woolworth Company, 90 NLRB 289,
with interest on backpay computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716. Payroll and
other records in possession of the Respondent are to be made
available to the Board, or its agents, to assist in such compu-
tation and in determining the right to reinstatement.
It will also be recommended that the Respondent bargain
collectively with the Union and, in view of the nature of the
unfair labor practices which I have found to have been com-
mitted, I shall further recommend that the Respondent cease
and desist from in any manner interfering with its employees'
rights guaranteed under Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions
of law, and upon the entire record in this proceeding, it is
recommended that the National Labor Relations Board, pur-
suant to Section 10(c) of the National Labor Relations Act,
as amended, order that the Respondent, Linden Lumber
Division, Summer & Co., Columbus, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Truck Drivers Union Lo-
cal No. 413, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization, by dis-
criminatorily failing or refusing upon their unconditional re-
quest to reinstate any of its employees who have engaged in
a strike and are lawfully entitled to reinstatement, or by
discriminating against its employees in any other manner in
regard to hire or tenure of employment or any term or condi-
tion of employment.
(b) Refusing to bargain with the above-named Union as the
exclusive representative of its employees in the unit found to
be appropriate for the purposes of collective bargaining.
LINDEN LUMBER DIV, SUMMER & CO.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of nghts guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer to Richard E. Marsh and Richard L. Alexander
immediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to their seniority
or other rights and privileges , and make them whole in the
manner set forth in the section of this Decision entitled "The
Remedy."
(b) Notify the said employees if presently serving in the
Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
(c) Upon request, bargain collectively in good faith with
the above -named Union as the exclusive representative of the
employees in the unit heretofore found appropriate , concern-
ing rates of pay , wages, hours of employment , and other
conditions of employment , and, if an understanding is
reached , embody such understanding in a signed agreement
(d) Preserve and, and upon request , make available to the
Board or its agents , for examination and copying , all payroll
records, social security payment records, timecards, person-
nel records and reports , and all other records necessary to
determine the amount of backpay due and to analyze rein-
statement rights under the terms of this Recommended Or-
der.
(e) Post at its premises in Columbus , Ohio, copies of the
attached notice marked "Appendix."" Copies of said notice,
to be furnished by the Regional Director for Region 9, after
being duly signed by a representative of the Respondent, shall
be posted by the Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(f) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of receipt of this Decision, what
steps the Respondent has taken to comply herewith."
" In the event that this Recommended Order is adopted by the Board
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States Court
of Appeals , the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
16 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 9 , 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 effec-
tuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activity
on behalf of Truck Drivers Union Local No. 413, affi-
liated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization , by discriminatorily failing
or refusing to reinstate any of our employees or by dis-
733
criminating in any other manner in regard to hire or
tenure of employment or any term or condition of em-
ployment , except as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL offer Richard E. Marsh and Richard L.
Alexander immediate and full reinstatement to their
former positions , without prejudice to seniority and
other rights and privileges.
WE WILL make the said Marsh and Alexander whole
for any loss of pay suffered as a result of refusing to
reinstate them.
WE WILL, upon request , bargain collectively in good
faith with the above -named Union , as the exclusive bar-
gaining representative of our employees in the unit found
by the National Labor Relations Board to be appropriate
for the purposes of collective bargaining, with respect to
rates of pay, wages, hours of employment, and other
conditions of employment , and, if an understanding is
reached , embody it in a signed agreement . The bargain-
ing unit is:
All truck drivers, warehousemen, production and
maintenance employees and yard men at the Re-
spondent's facility at 1850 Dunune Avenue,
Columbus, Ohio, excluding office clerical em-
ployees, guards, and supervisors as defined in the
Act.
All our employees are free to become , remain , or refrain
from becoming or remaining , members of the above-named
Union or any other labor organization.
LINDEN LUMBER
DIVISION, SUMMER
& Co.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the employees to be reinstated, if pres-
ently serving in the Armed Forces of the United States, of
their right to full reinstatement upon application, in accord-
ance with the Selective Service Act and the Universal Mili-
tary Training and Service Act, 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.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate di-
rectly with the Board's Regional Office, Room 2407, Federal
Office Building, 550 Main Street, Cincinnati Ohio 45202,
Telephone 513-684-3663.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
IVAR H. PETERSON, Trial Examiner: On January 26, 1968,
I issued my Decision in this proceeding , finding that the
Respondent had engaged in unfair labor practices violative of
Section 8(a)(1), (3), and (5) of the Act. On April 15, the
Board issued an Order, following receipt of exceptions and
briefs, remanding the proceeding to me "for the purpose of
making findings of fact concerning ( 1) the supervisory status
of Henry Shafer, and (2) if a supervisor, the impact of Shafer's
conduct on the validity of the Union's majority, and for
making any other or additional findings and recommenda-
tions based on the record, supplemented, if necessary, by
evidence received at a reopened hearing "
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having further considered the matter, I conclude that it is
not necessary to take additional evidence at a reopened hear-
ing inasmuch as the record as presently constituted is ade-
quate to permit the making of findings regarding the super-
visory status of Shafer and the impact of his conduct on the
validity of the Union's majority.
In my original decision I stated that it was unnecessary to
determine whether Shafer was a supervisor and, further, that
the evidence on this issue was inconclusive. Upon a further
review of the record, I am now of the opinion that the evi-
dence sufficiently establishes that he was a supervisor, and I
so find. Aside from the conclusionary testimony of General
Manager Riley and Assistant Manager Dunfee to the effect
that Shafer was the mill foreman or mill superintendent and
"supervised" two men, Ross and Beckelheimer, there is credi-
ble testimony of Robert Dupre, the dispatcher, and William
Mason, a truckdnver who on occasion worked in the mill,
that Shafer was the mill superintendent and a supervisor
Moreover, Smedstad, the Union's attorney, testified that on
February 3, 1967, prior to the meeting concerned with the
Union's representation petition, he discussed with Shafer the
latter's duties and, after he (Smedstad) had submitted to the
hearing officer a written request to withdraw the petition
advised Shafer "that I thought the chances were good that the
Labor Board would conclude that he was a supervisor."
Smedstad further testified that he based his view in part upon
the fact that Shafer, unlike Marsh, "had gotten a written set
of instructions outlining what his supervisory authority was.,,
Considering all the testimony regarding Shafer's status, I am
persuaded that it sufficiently establishes that he had and exer-
cised supervisory authority, and I so find.
As to the second issue on which the Board has ordered that
I make findings in the event I determine Shafer was a super-
visor-"the impact of Shafer's conduct on the validity of the
Union's majonty"-the conclusion I reach is that the Un-
ion's majority is in no way tainted or impaired by reason of
Shafer's having signed an authorization card or by any other
conduct on his part as disclosed by the record.
The initial contact with the Union was made on December
28, 1966, by William Martin, then an employee, who tele-
phoned Dow Norman, business agent and organizer of the
Union. The next day Norman met with 11 employees and
Shafer at a restaurant. All of them including Shafer, signed
authorization cards. Norman credibly testified and I find that
Shafer did not at this meeting address the employees. The
Union made its demand for recognition by letter dated Janu-
ary 3, 1967, and filed its petition on January 5. There is no
evidence that Shafer solicited any employees to sign authori-
zation cards or to support the Union. Dispatcher Dupre did
testify that Shafer, during the organizational period, "told me
he hated Bill Dunfee, and he was going to get Dunfee, and
that they were going to get the union in or he was going to
quit." Yard Foreman Toops testified that Shafer talked about
the Union and in that connection said, "they were out to get
Bill Dunfee." Mason, a truckdnver, who did not attend the
organizational meeting on December 29, and did not sign an
authorization card, testified Shafer stated to him, "We are
trying to get a union in here," but said nothing about Dunfee.
As heretofore found, Organizer Norman met with em-
ployees on February 4, the day after the aborted representa-
tion hearing at which Mr. Rector, on behalf of the Respond-
ent, refused to recognize the Union or consent to an election,
claiming that supervisors had coerced employees into signing
authorization cards. Nine employees, as well as Shafer and
Marsh, the two card signers whose status was in dispute, were
present. Norman at that meeting stated that since their status
was in question Shafer and Marsh "would not be allowed to
participate in this movement" and asked that they leave. The
nine employees remaining were asked to read a document,
which they then signed, affirming that they desired the Union
to represent them, that each "has voluntarily signed" the
document, and that each "believes the company would not
want us to join" the Union. This document, together with the
Union's request for recognition and a proposed recognition
agreement, were given by Business Agent Norman to General
Manager Riley on February 6. For the Respondent, Rector
replied on February 8, refusing to recognize the Union, as-
serting that the Union's membership "includes supervisors
... who influenced and dominated employees of the
proposed unit," a position "made clear by the company at the
NLRB hearing February 3, 1967," and further stating that
"the company can not recognize your union so long as the
supervisory influence exists." After receipt of this letter Nor-
man, on February 9 or 10, called a meeting of the nine em-
ployees who on February 4, had signed the statement affirm-
ing their voluntary adherence to the Union, at which they
read Respondent's February 8 letter and Norman explained
that it meant that Respondent was refusing to accept the
Union as the employees' bargaining agent . A strike vote was
taken, by secret ballot, with the result that the nine employees
voted unanimously to strike. All of them, except Robert
Beckelheimer, joined in the strike which began on February
15 and picketed the Respondent's premises.'
To summarize, I find that Shafer, a supervisor, attended
the initial organizational meeting of employees on December
29, 1966, and signed an authorization card. There is no evi-
dence, however, that he solicited employees or otherwise en-
listed their support of the Union. He did tell one employee,
Mason, that an effort was being made, which he supported,
"to get a union in here"; Mason did not sign a card or support
the Union At the February 4 meeting Shafer, as well as
Marsh, was told by Business Agent Norman that, in view of
the Respondent's contention that he was a supervisor, he
could no longer participate in union activities, and he and
Marsh were asked to leave the meeting. Thereafter, the re-
maining nine employees signed a statement affirming that
they voluntarily desired the Union to act as their collective-
bargaining representative, and later voted by secret ballot to
strike and all but one did engage in the strike. Assuming that
an inference of supervisory influence in the procurement of
authorization cards at the initial meeting on December 29,
1966, might be drawn from the presence of Shafer at that
meeting, I am of the opinion that such an inference is negated
by the subsequent action of the rank-and-file employees, after
Shafer had been told in their presence that he could no longer
participate, in affirming their designation of the Union on
February 4, and, after Shafer quit his employment, unani-
mously voting to strike. Accordingly, I find that the Union's
majority status is not impaired or tainted by any conduct of
Shafer.
Except with respect to my original findings that it was
unnecessary to determine Shafer's supervisory status and that
in any case the evidence relating thereto was inconclusive,
which necessarily are modified as set forth in this Supplemen-
tal Decision, I adhere to the findings, conclusions and recom-
mendations contained in my original decision herein, issued
January 26, 1968.
' Beckelheimer quit on February 19 According to the Respondent, Beck-
elheimer took Shafer's position when Shafer quit on February 6 According
to Yard Foreman Toops, Shafer told him the morning of February 4 that the
Union "sold us down the river," turned in his keys to Dunfee, and stated
that he quit