The Hamilton Plastic Molding Co.

National Labor Relations Board - Board Decisions

Jan 22, 1962

135 N.L.R.B. 371 (N.L.R.B. 1962)

THE HAMILTON PLASTIC MOLDING COMPANY 371
The Hamilton Plastic Molding Company and Local Union No.
156, Upholsterers ' International Union of North America,
AFL-CIO. Case No. 9-CA-2116. January 22, 1962
DECISION AND ORDER
On March 22, 1961, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed with respect to such
allegations. Thereafter, the Respondent and the General Counsel each
filed exceptions to the Intermediate Report with supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and finding merit in the General Counsel's exceptions,
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner to the extent that they are consistent with our Deci-
sion and Order.
1. The Trial Examiner concluded that the Respondent had not-
violated Section 8(a) (5), as alleged in the complaint, by refusing to
bargain with the Union, which claimed to be the designated represent-
ative of a majority of the employees in an appropriate unit. The basis
for his conclusion was that, of 10 authorization cards which the
Union relied on for its majority showing, 3 had been signed by super-
visors, and 6 of the remaining 7 cards could not be considered as free
designations of the employees because they had been procured by the
supervisors. The General Counsel's exceptions put in issue the status
of Frank Papania and Lawrence Heis, two of the alleged supervisors.
If they are not supervisory employees, their authorization cards and
the cards of those employees whom they solicited establish the Union's
majority status.'
The Respondent is a manufacturer of plastic toys. During its busy
season from August until shortly before Christmas, it employ's as
many as 30 employees. During the events involved herein, in May
1960, there were employed a total of 19 persons, including supervisors
and 1 clerical employee. The 13 or so production employees are di-
vided among 3 shifts with no more than 4 or 5 employees on any shift.
1 Other issues, relating to the adequacy of the Union 's demand , the appropriateness of
its unit request , and a subsequent loss of the Union's majority , are discussed below.
135 NLRB No. 39.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Papania had been a foreman on the third (midnight to 8 a.m.) shift
until May 2, 1960, when he was transferred to the day shift (8 a.m.
to 4 p.m.) with the tible of assistant foreman. Heis was the assistant
foreman on the second shift (4 p.m. to midnight) under Foreman
Stemmerding. No one was designated as foreman on the day shift.
This shift was supervised by Babbitt, the plant superintendent, who
was responsible generally for production on all shifts.
Papania testified that his duties on the day shift were substantially
the same as they had been on the third shift except that, since Babbitt
was present most of the time, his responsibilities were limited. Most
of his work was in such routine tasks as filling hoppers, relieving
machine operators, mixing materials, repairing machines, and even,
at times, sweeping the floor. At no time from May 2, when Papania
was assigned to the first shift, until May 10, when the Union made
its bargaining request, was Papania left solely in charge of the
machine operators. Babbitt was always near at hand and gave
Papania instructions which he then relayed to the operators. The
Trial Examiner concluded, upon the basis of Babbitt's testimony,
that Papania was in complete charge of the day shift when Babbitt
was not there, and that Papania did in fact have authority responsibly
to direct the work of employees on his shift. As it is admitted that
Heis' job was identical with Papania's, the Trial Examiner found
that Heis also was a supervisor. In the same connection, it also
appears that Heis' superior, Foreman Stemmerding, was rarely away
from his station during the second shift.
In addition to supervising directly the operations of the day shift,
Superintendent Babbitt's workday overlaps the last hour of the third
shift and the early hours of the second shift. In view of the routine
work of the assistant foremen and the machine operators, the small
number of employees working on each shift, and the fact that during
each shift there was an admitted supervisor on duty at all times, we
are satisfied that the authority and responsibility delegated to Papania
and Heis were extremely limited. Even admitting that they may
have made some assignments or transfers of machine operators, we
believe that the Trial Examiner erred in concluding that this con-
stituted an exercise of authority responsibly to direct the work of
other employees. We find, therefore, that Papania and Heis are non-
supervisory employees and that the authorization cards they signed
on behalf of the Union should be counted.
2. Papania made the first contact with the Union by calling Cook,
its business agent, by telephone on May 6, 1960. Cook arranged to
meet him at the union office, and asked Papania to bring several co-
workers with him for a meeting on May 9. On that day, Papania
and Heis, together with Michaels, the foreman on the third shift, and
Whitaker, a machine operator on that shift, met with Cook and signed
THE HAMILTON PLASTIC MOLDING COMPANY 373
authorization cards. There is no doubt that Papania provided the
original impetus for the organizational campaign an that it was
through his efforts that the other three were encouraged to sign with
the Union. Although Papania and Heis signed their cards in the
presence of Michaels, a supervisor, we are of the opinion that the
validity of their authorization cards was not thereby destroyed 2 The
next day, Papania and Reis signed up six of the Respondent's pro-
duction employees. Michaels solicited an employee on his shift,
Anglian, to sign a card. As of this time, therefore, the Union had
procured 11 signed cards out of a total of 16 employees. In deter-
mining whether the Union had a majority, the Trial Examiner prop-
erly rejected the cards of Foreman Michaels because he was a super-
visor and of Anglian because she had been solicited by a supervisor.
The other authorization cards, however, having been obtained either
by Papania or Heis, constitute valid designations for purposes of
determining the Union's majority.
We find it unnecessary to determine the validity of Whitaker's card.
He was employed on the third shift under Foreman Michaels, but had
signed up as one of the group which had voluntarily visited union
headquarters, rather than at the solicitation of his supervisor. In any
event, even if his card is excluded from the count, the Union was in
possession of 8 valid cards in a unit of 15 production employees, when
the Union's request for recognition was made on May 10.
3. We agree with the Trial Examiner that the Union's letter stating
that it represented a majority of the employees, which Cook, the
Union's business agent, delivered to Respondent's president on May 10,
constituted a request for recognition in an appropriate unit, even
though it failed to specifically exclude supervisors and clerical em-
ployees. Even if we assume that the Union intended to seek repre-
sentation of the one office clerical employee and of the supervisors, we
find the variance from what would otherwise be an appropriate unit
of production and maintenance employees to be minor and subject
to modification.' Moreover, at no time did the Respondent raise any
question, in refusing to meet and discuss the Union's request for recog-
nition, as to unit inclusions or exclusions. On the contrary, by its
refusal to consider the Union's request for recognition and its offer to
prove its majority, it foreclosed any clarification by the Union as to
the scope of its requested unit.
4. On May 10, 1960, Cook personally delivered a letter requesting
recognition to Mistler, the Respondent's president. The letter was
2 Orange Premium Stamps ( Division of Alfred M. Lewis, Inc ), 127 NLRB 1491,
1501-1502 . Cf Insular Chemical Corporation, and Rubber Corporation of America
( Insular Division ), 128 NLRB 93, 98.
3 Mrs Homer E Ash, et al ., d/b/a Ash Market & Gasoline, 130 NLRB 641.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addressed to Carter, the Respondent's vice president, but Cook in-
formed Mistier of its contents and discussed the organization of the
plant employees. During the conversation, according to the testimony
credited by the Trial Examiner, Mistier stated that Respondent could
lay off most of its employees and operate the plant with no more than
two or three men. Two days later, Cook called Vice President Carter
and repeated the Union's request for recognition. Carter said he
would have to consult his attorney and Cook agreed, provided that
the matter was settled soon. The same day, Carter interrogated em-
ployee Ohmer as to whether she had been asked to sign a card and by
whom. Before and after May 17, when Carter refused to accept a
card check and flatly refused recognition of the Union, Superintendent
Babbitt engaged in the threats, promises of benefits, and interrogation
.of employees which are fully detailed in the Intermediate Report. In
agreement with the Trial Examiner, we find that these acts were in
violation of Section 8(a) (1).4 Furthermore, we are of the opinion
that Respondent's conduct, beginning on May 10, was designed to
delay or avoid recognition of the Union in order to enable it to dis-
sipate the Union's majority. Accordingly, we find that Respondent's
refusal to recognize and bargain with the Union beginning on May 10,
1960, was in violation of Section 8 (a) (5).
Shortly after May 10, 1960, the Respondent, for nondiscriminatory
reasons, terminated Papina, Heis, and two other employees who had
signed union authorization cards. Although the discharge of these
four employees caused the Union to lose its majority status some time
after May 10, we find, nevertheless, that the Union is entitled to be
recognized as the exclusive representative of the Respondent's pro-
duction and maintenance employees, since the right to recognition is
-determined as of the date the Respondent wrongfully failed to grant
it and undertook to dissipate its majority, through interference, re-
straint, and coercion.'
The Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
As we have found merit in the General Counsel's exceptions to the
failure of the Trial Examiner to find that Respondent refused to
recognize and bargain with the Union at a time when the Union repre-
+ In the absence of exceptions we adopt, pro forma, the Trial Examiner 's finding that
Respondent was not responsible for Foreman Michael 's statement to employee Kichler
and therefore Respondent did not violate Section 8 ( a)(1) by such conduct.
5 Franks Bros . Company v . N L R B ., 321 U S. 702.
THE HAMILTON PLASTIC MOLDING COMPANY 375
sented a majority of its employees in an appropriate unit, we shall
order the Respondent, upon request, to bargain collectively with the
Union.
Because the conduct of the Respondent evinces a purpose to thwart
the right of its employees freely to select their collective-bargaining
representative, it is likely that such purpose will be effectuated in the
future by the continuance of the unfair labor practices found herein or
by the commission of other labor practices. We shall therefore order
the Respondent to cease and desist from violating the Act with respect
to the specific violations found, as well as in any other manner.
Upon the basis of the foregoing, and upon the entire record in
this case, the National Labor Relations Board hereby makes the fol-
lowing additional:
CONCLUSIONS OF LAW
5. All production and maintenance employees in the Employer's
plant at New Burlington, Ohio, excluding office clerical employees
and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section
(b) of the Act.
,6. At all times since May 10, 1960, the above labor organization has
been, and now is, the exclusive representative of all the employees in
the above appropriate unit for the purpose of collective bargaining
within the meaning of Section 9 (a) of the Act.
7. By refusing to recognize and bargain with the Union on and
after May 10, 1960, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and (5)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, the Hamilton
Plastic Molding Company, New Burlington, Ohio, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union No. 156,
Upholsterers' International Union of- North America, AFL-CIO, as
the exclusive representative of its employees in the following unit
which the Board finds appropriate for the purposes of collective
bargaining :
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees excluding office cleri-
cal employees and supervisors as defined in the Act.
(b) Interrogating employees concerning their union membership
and activities ; telling its employees that it knows the identity of em-
ployees who are adherents of Local Union No. 156, Upholsterers'
International Union of North America, AFI-CIO ; threatening a
plant shutdown and loss of jobs if the aforesaid Union should succeed
in organizing the Respondent 's employees ; holding out to employees
an expectation of a raise or other benefits if they should refrain from
joining or supporting the Union ; threatening discriminatory work
assignments to employees who support the Union ; creating the im-
pression that the activities of the employees are under surveillance;
and in any other manner interfering with, restraining , or coercing its
employees in the exercise of their rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act, as
modified by the Labor -Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act.
(a) Upon request, bargain collectively with the above -named labor
organization as the exclusive representative of the employees in the
aforesaid unit, and, if an understanding is reached , embody such
understanding in a signed agreement.
(b) Post at its plant at New Burlington , Ohio, copies of the notice
attached hereto marked "Appendix ." 6 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region , shall, after
being duly signed by the Respondent, be posted by the Respondent
immediately upon receipt thereof , and be maintained by it for 60 con-
secutive 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.
(c) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
MEMBERS RODGERS and FANNING took no part in the consideration of
the above Decision and Order.
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
THE HAMILTON PLASTIC MOLDING COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
377
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT interrogate you concerning your or other em-
ployees' union activities or sympathies on behalf of Local Union
No. 156, Upholsterers' International Union of North America,
AFL-CIO, or any other labor organization.
WE WILL NOT create the impression that your union activities
are under surveillance.
WE WILL NOT threaten you with closing our plant, discontinu-
ing operations, or discharging you in the event a union becomes
your collective-bargaining representative.
WE WILL NOT promise you a raise in pay, paid lunch periods,
paid holidays or other benefits to discourage you from engaging
in union activity or selecting a union as your collective bargaining
representative.
WE WILL NOT threaten you with more difficult and less desirable
assignments because you have engaged in union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of your rights to self-organization, to
form, join or assist the above-named or any other labor organiza-
tion, to bargain collectively through representatives of your own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of said Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively upon request with the above-
named labor organization as the exclusive collective bargaining
representative of all of our employees in the bargaining unit de-
scribed below with respect to rates of pay, hours of employment
and other conditions of employment and if an understanding is
reached, embody such understanding in a signed agreement. Said
bargaining unit is :
All production and maintenance employees, excluding office
clerical employees and supervisors as defined in the Act.
All of our employees are free to become, remain, or refrain from
becoming members of the above-named or any other labor organiza-'
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a) (3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
THE HAMILTON PLASTIC MOLDING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio;
telephone number, Dunbar 1-1420) if they have any question concern-
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
As amended at the hearing ,' the complaint alleges that the Respondent (The
Hamilton Plastic Molding Company ) committed unfair labor practices affecting
commerce within the meaning of Sections 8(a) (1) and ( 5) and 2(6 ) and (7) of the
Act by (a) refusing to bargain in good faith with the Union (Local Union No. 156,
Upholsterers ' International Union of North America, AFL-CIO) as the exclusive
bargaining representative of an appropriate unit of the Respondent 's employees, and
(b) various acts of its officers and supervisors interfering with its employees' organi-
zational activities , viz, interrogating employees concerning their interest in, and
activities in support of, the Union ; telling employees it knew which employees were
union adherents ; telling employees that an employee who had quit would be treated
by the Respondent as being on leave of absence so that she could vote against the
Union in a representation election; threatening employees with assault , discharge,
layoff, plant closure , and other reprisals if they selected the Union as their bargaining
representatives ; and promising employees wage raises and other benefits if they re-
frained from supporting the Union as their bargaining representative . In its answer,
the Respondent generally denies the allegations of the complaint concerning these
asserted unfair labor practices.
Pursuant to notice , a hearing was held in Cincinnati , Ohio, on September 13, 14,
and 15, 1960, before William F. Scharnikow , the Trial Examiner duly designated by
the Chief Trial Examiner . The General Counsel and the Respondent appeared by
counsel , and the Union by its representative , and were afforded full opportunity to be
heard , to examine and cross-examine witnesses , and to introduce evidence bearing
upon the issues. The General Counsel and counsel for the Respondent have sub-
mitted briefs on the issues.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
i At the beginning of the hearing , the Trial Examiner granted a motion by the General
Counsel to strike from his complaint the language of two paragraphs which alleged that
the Respondent had committed unfair labor practices in violation of Section 8(a)(3) of
the Act by discriminatory layoffs of four employees , I e., Frank C Papania , Jr, Lawrence
J. Heis , Robert J. Kichler , and Lonnie Whitaker . During the hearing the Trial Examiner
also granted another motion by the General Counsel to amend the complaint by setting
forth the unit of the Respondent 's employees which the Union claims it represents and
which the General Counsel and the Union contend is appropriate for the purposes of
collective bargaining within the meaning of Section 9 ( a) and ( b) of the Act.
THE HAMILTON PLASTIC MOLDING COMPANY
FINDINGS OF FACT
379
1. THE BUSINESS OF THE RESPONDENT
The Respondent, The Hamilton Plastic Molding Company, is an Ohio corporation
engaged in the manufacturing of plastic products gat its plant and principal place of
business in New Burlington, Ohio. During the year preceding the issuance of the
complaint, the Respondent sold products of a value in excess of $50,000 to other
persons, firms, and corporations, each of whom during the same year had 'a direct
outflow of their respective products in interstate commerce in excess of a value of
$50,000.
I find, as the parties stipulated at the hearing, that the Respondent is engaged in
commerce within the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Local Union No. 156, Upholsterers' International Union of North America, AFL-
CIO, is a labor organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The Union's cards
The Respondent manufactures plastic toys with its busy season from August or
September until shortly before Christmas, and a slack period during the rest of the
year. It employs a single clerical employee, a toolmaker, and a varying number of
machine operators . Its complete staff, including supervisors , ranges from 8 in the
slack season to as many as 30 during the busy season. On May 10, 1960, the critical
date in the present case, there was a total of 19 people, including supervisors, on the
Respondent's payroll. (General Counsel's Exhibit No. 5.)
On May 9, 1960, four of these people went to the Union's office and told Arthur
Cook, the Union's business manager, "that they were interested in trying to put a
union into their plant." One of the four men, Anthony Michaels, was foreman of the
Respondent's third shift, and was unquestionably a supervisor. The status of two
others, Frank Papania and Lawrence Heis, is in dispute. The General Counsel and
the Union claim that they were merely machine operators and nonsupervisory em-
ployees, but the Respondent contends that they were assistant foremen and therefore
were supervisors. It is agreed by all parties that the fourth man, Lonnie Whitaker,
was a machine operator and an employee within the meaning of the Act.
The four men each signed one of the Union's combination bargaining authorization
and checkoff cards and returned to Cook the next day with similar cards signed by
seven more of the Respondent's machine operators. Since the Respondent's payroll
list of 19 people for May 10, 1960, included the plant superintendent, Foreman
Michaels, and another shift foreman (who were admittedly supervisors) and also
the only clerical employee, the Union thus had in its possession on May 10, 1960, the
apparently valid bargaining authorizations of either 10 out of 15 or 8 out of 13 of the
Respondent's production employees,2 depending upon whether Papania and Heis
were employees or supervisors within the meaning of the Act.
2. The Union's bargaining request
On May 10, 1960, the same day he received the bargaining authorizations, Business
Manager Cook visited the Respondent's plant and asked for Nicholas Carter, the Re-
spondent's vice president. In Carter's absence, Cook spoke with Eldon Mistler, the
Respondent's president, and gave Mistier the following letter which Cook had
addressed to Carter:
This will officially notify you that the Upholsterers' International Union of
North America, AFL-CIO, through its agent Local 156, represents a majority of
your employees and is desirous of meeting with you for the purpose of negoti-
ating a contract covering their hours, wages and working conditions.
I trust that you will consider and recognize the Employees' rights to organize
under the law without fear of intimidation and coercion and will act accordingly.
2 Michaels and his card , of course , are not to be counted since he was admittedly a
supervisor.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their conversation on this occasion, Cook also asked Mistier to negotiate a
contract with the Union, but was no more specific about the employee unit which
the Union claimed it represented than he was in his letter to Carter. According to
'Cook's testimony, he told Mistier merely that the Union had "a majority of the people
signed up" and was "desirous of ... negotiating a contract." According to Mistier
Cook said, "I represent ninety-eight percent of your employees and I want to get
together with your people and sit down and draw up a contract." After some dis-
cussion, in which Mistier spoke of his own union membership in the past but made
no definite reply to Cook's request, Cook asked that either Carter or Mistier get in
touch with him in a few days, and then left the plant.
Cook and Mistier gave different versions of their discussion of Cook's request
during this conversation on May 10. Cook testified that Mistier said he "didn't think
a company this small would be bothered by a union" and that the Respondent
could "lay everybody off in this plant and operate it with two or three people"; and
that Cook thereupon warned Mistier that this would be an unfair labor practice,
cautioned Mistier generally against discriminating against employees because of
their union activities, and referred to a "mistake" which he said had already been
made by the Respondent in attempting to discourage the organizational activities of
Frank Papania.3 Mistier, on the other hand, testified that he told Cook he did not
believe the Union represented 98 percent of the Respondent's employees and that
he thought that "before we could sit down and really discuss or talk about this,
. we are entitled to an election."
Neither Cook nor Mistier specifically claimed that his version set forth their entire
discussion of the Union's request for recognization on May 10: Nor did he deny
the substance of the version given by the other. This latter fact seems to me to be
of especial significance in view of the generally guarded and cautious manner in
which each of these two witnesses gave his testimony and his obvious concern lest he
make any contribution to the support of the other's case. For, in my opinion their
respective versions of the conversation are not necessarily inconsistent. Moreover,
from my observation of them as witnesses and in the context provided by the rest
of the record, the remarks attributed to each of them, in both versions appear to be
entirely in character. Accordingly, since the two versions appear to be equally
plausible and not inconsistent, I credit the testimony of both men as to their
conversation on May 10 and, upon a composite, find not only that Mistier spoke
of the possibility of laying off the Respondent's few employees and thus triggered a
warning by Cook against the commission of unfair labor practices, but that Mistier
3The incident to which Cook referred occurred during a visit by Mistier and Carter to
Papania's home on or about April 20, when Papania was foreman on the third or night
shift Papania testified that Carter charged him with "talking about something in the
shop" ; that Papania said he was "trying to get the Union" started ; that Carter said he
wanted Papania "to work for the Company, be a Company man"; and that Papania
promised he "would forget about the Union " But Carter and Mistier testified that they
spoke to Papania about Superintendent Lew Babbitt's complaints concerning Papania's
work and also about a radio which belonged to one of the girl employees and which had
disappeared on the third shift; that Papania denied knowing anything about the radio
and asked for a transfer back to the first shift ; and that Carter and Mistier agreed to
the transfer
Neither in the complaint nor in his brief does the General Counsel refer to this incident,
much less contend that Carter's and Mistler's conduct amounted to an unfair labor
practice But, since the testimony of Papania was proffered by the General Counsel at
the hearing in support of the Section 8(a) (1) allegations of the complaint and Carter's
and Mistler's evidence was also received, it seems to me to be advisable to state my reasons
for not making an unfair labor practice finding based upon the incident.
On May 2, Papania was transferred back to the first shift and his place as foreman on
the third shift was taken by Anthony Michaels. The complaint alleges and the Respond-
ent admits in its answer that Michaels is a supervisor within the meaning of Section 2(11)
of the Act. Moreover, the complaint alleges Michaels' commission of unfair labor prac-
tices as a supervisor "from May 2, 1960 until May 21, 1960 " It is thus undisputed and
clear that at the time of Carter's and Mistler's visit to Papania's home on or about
April 20, Papania was also a supervisor within the meaning of the Act Accordingly,
although I credit Papania's testimony, I specifically conclude that Carter's and Mistler's
insistence that Papania as a supervisor refrain from organizational activities and "work
for the Company rand] be a Company man" was not an unfair labor practice and is not
indicative of opposition on the part of the Respondent to the organizational activities of
its employees.
THE HAMILTON' PLASTIC MOLDING COMPANY - -381
also asserted a doubt as to the employees ' support of the Union 's claim to recognition
and a right on the part of the Respondent to an election under the circumstances.
On Thursday , May 12, Cook repeated the Union 's request ' for -recognition in a
telephone call which he made to Vice President Carter.' Carter said he would have
to consult his attorney . Cook agreed to this -and said he would give Carter until
Tuesday, May 17?
But Carter was unable to confer with his attorney before May 17. According to
Carter's testimony, which I credit, his attorney had been unable to meet with him
and President Mistier on the intervening Saturday , and they had arranged to meet
on Monday morning, May 16. Their meeting at that time then became impossible
because, in response to a telephone call on Saturday , Carter had to take blueprints to
an Akron toolmaker for a rush job early on Monday morning and returned home
only at 7 or 8 o'clock on Monday evening.
On the following day, Tuesday, May 17, Cook again telephoned Carter. Carter
testified that he explained to Cook why he had been unable to confer with his
attorney and have an answer .to Cook's request for recognition ; that Cook threatened
National Labor Relations Board action or picketing ; that both men became excited;
and that, although Carter could not remember all that Cook said before the con-
versation ended, he did not believe that anything was said about an election or
that Cook made any offer of a card check. He stated however, that if Cook had
offered a card check, he believed that he would have remembered it. Cook, on the
other hand , testified that Carter said he did not believe that the Union had a
"majority of our people signed up" and asked Cook to show him the cards; that Cook
refused but offered a card check by a disinterested third party chosen by Carter, if
Carter would agree to recognize the Union and negotiate a contract upon the
checker's confirmation of the Union 's majority; and that Carter said, "Absolutely
not."
Here again , Cook's and Carter's testimony ( like Cook's and Mistler's testimony
concerning their conversation on May 10) presents no clear-cut, definite conflicts as
to the material elements of their May 17 telephone conversation . The substance
of Carter's testimony was not denied by Cook nor was it inconsistent with Cook's
version of the rest of the conversation . Actually, the only apparent conflict is
as to whether Cook offered a card check of the Union's majority if Carter would
accept the result, and Carter refused. As Carter himself said in his testimony, he
certainly would have remembered whether or not such an important exchange had
occurred during a conversation . And yet , instead of flatly denying it, he testified
merely that he did not remember . Under the circumstances I do not find this in-
ferential denial to be persuasive and credit Cook 's testimony as to his offer of the
card check and Carter's refusal.
Accordingly, as in the case of Cook's and Mistler's conversation on May 10, I
make my specific findings as to what was said on May 17, upon a composite of what
I regard as the credible elements of both witnesses' testimony . In the absence of
denial by Cook , I credit Carter's testimony and find that Carter explained his
failure to meet with his attorney and have an answer to Cook 's requests for recogni-
tion, and that Cook thereupon threatened to take the matter to the Board and to
picket the Respondent 's plant. I further find, upon Cook's testimony , that Carter
said that he did not believe that the Union represented a majority of the Respond-
ent's employees and asked Cook to show him the cards ; that Cook refused and
offered a card check by a third party if Carter would agree to recognize the Union
and negotiate a contract upon the confirmation of the Union 's majority; and that
Carter rejected this offer.
On the same day May 17, 1960, the Union filed its charge in the present case.
There were no communications between the parties about the Union 's recognition
by the Respondent or the negotiation of a contract , after Cook's and Carter 's tele-
phone conversation on May 17.
4 On either the same day or the preceding day, Cook had also telephoned President
Mistier and protested the layoff of Frank Papania on Wednesday , May 11 In their
testimony concerning this telephone conversation , cook made no mention of any reference
to recognition and ^Mistler denied that the matter came up, although in a pretrial state-
ment he had said that Cook had again asked him for recognition I credit Mistler ' s testi-
mony at the hearing and find that Cook did not repeat his request for recognition in his
telephone call to Mistler on May 11 or 12, but merely protested Papania's layoff.
As to Papania 's layoff, it will be recalled that, although the complaint originally alleged
that Papania and three other men were discriminatorily laid off, these allegations were
struck from the complaint on the General Counsel's motion at the beginning of the hear-
ing. (See footnote 1, above )
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The defect in the Union's claim to recognition
In arguing that its failure to accede to the Union's bargaining request was not
violative of Section 8(a) (5) of the Act, the Respondent not only asserts and relies
upon an honest doubt as to the Union's majority, but also raises the fundamental
defense that, upon the facts shown by the record, it was under no obligation to bar-
gain with the Union. In brief, it challenges the sufficiency of the Union's bar-
gaining request and the Union's majority.
According to the Respondent, the Union's bargaining request was defective and
created no bargaining obligation on the part of the Respondent, because it failed
to set forth any claim that the Union represented and was seeking to bargain on
behalf of a unit of the Respondent's employees which would be appropriate for
the purposes of collective bargaining within the meaning of Section 9(a) and (b)
of the Act. Specifically, the Respondent contends that, by claiming all the Re-
spondent's "employees" and failing to exclude supervisors and clericals, the bar-
gaining request must be regarded as having included both supervisors and clerical
employees along with the production employees.
But I am not convinced that any such confusion did result, or could possibly
have reasonably resulted, from the Union's use of the term "employees," or its
failure expressly to exclude the Respondent's single clerical employee from a unit
otherwise properly composed of production employees. So far as the solitary cleri-
cal employee was concerned, her apparent inclusion in the Union's request was obvi-
ously inadvertent, was such a minor matter that it could have caused no real difficulty,
and should not, in my opinion, defeat the Union's request for recognition. And the
Respondent's argument that the term "employees," when used in a union's bargaining
request, must be construed "in its dictionary sense" and thus include supervisors, is
contrary not only to the definition of "employees" in Section 2(3), but also to the
common, everyday usage of unions and employers. Accordingly, I conclude, con-
trary to the Respondent's arguments, that the Union, in requesting the Respondent
to bargain on behalf of the Respondent's employees, thereby effectively claimed
to represent what was an appropriate unit of the Respondent's production employees
for the purpose of collective bargaining within the meaning of Section 9(a) and
(b) of the Act, viz, all the Respondent's employees, excluding its office clerical
employees and its supervisors.
The Respondent also attacks the validity of the bargaining authorizations sub-
mitted by the Union at the hearing, because of handwritten insertions made upon
the cards after they were signed; because of the predating of Heis' card; because
of the supervisory status of Papania and Heis; and because of the participation of
Papania and Heis, along with Foreman Michaels, in soliciting and thereby "coerc-
ing" the signatures of employees on the other cards. , For the following reasons,
I find merit in some, but not all, of these arguments of the Respondent.
All the cards were in fact signed on either May 9 or 10. It is true that at Cook's
suggestion Heis' card was dated May 4, 1960. According to Cook, this was done
because Heis and Papania had made an earlier inquiry as to the possible organiza-
tion of the Respondent's employees and Cook believed that in order to protect
Heis from discrimination by the Respondent, it was advisable to have this appear
from the date given on his card. It is also true, as Cook testified, that on the other
cards the date, May 9 or 10, 1960, was inserted after the cards were signed, as
were the name of the Respondent as the employer and the Union's Local as its
agent, in the blanks provided in the checkoff authorization. Contrary to the Re-
spondent's contention, however, neither these insertions nor the predating of Heis'
card changed the fact that the cards were signed on either May 9 or 40, 1960,
and that they do show the intent of the subscribers to designate the Union as their
exclusive bargaining representative. Although the predating of Heis' card is not to
be condoned, I conclude that the predating of his card and the completion of all
the cards in accordance with the apparent intent of the subscribers do not invalidate
their cards as bargaining authorizations.
Coming now to the disputed question of whether Papania and Heis were super-
visors, on May 10, 1960, it appears that Papania was then working on the first shift
from 8 a.m. to 4 p.m., that Heis was working on the second shift from 4 p.m. until
midnight, and that the functions and duties of the two men were the same on their
respective shifts. At the time, the Respondent was running, three shifts, with from
three to five machine operators on each shift. Superintendent Lew Babbitt was
in overall charge of the plant and, since Babbitt was normally in the plant from
7 a.m. until 5 p.m., there was no foreman for the first shift on which Papania worked.
Apparently because of Babbitt's absence during the other .two shifts, Foreman Ray
Stemmerding was in charge of the second shift on which Heis worked, and Fore-
man Anthony Michaels was in charge of the third shift from midnight to 8 a.m.
THE HAMILTON PLASTIC MOLDING COMPANY 383
Until May 2 , 1960, Papania had been foreman of the third shift but , at his own
request, he was then transferred to the first shift and replaced by Michaels as
foreman on the third shift. According to Papania 's testimony , upon his transfer to
the first shift , he was told by Superintendent Babbitt that he was to be an "assistant
foreman." Although Papania also testified that his wage rate was reduced 10
cents per hour , it appears from his canceled wage check that his wage rate remained
the same as it had been when he was foreman on the third shift.
In performing their work on their respective shifts after May 2 (and thus on May
10, the critical date in this case ), Papania and Heis sometimes operated the ma-
chines, relieved the other operators for dinner and other work breaks, mixed
materials , filled the hoppers, repaired machines when they broke down , and even
swept the floor .5 In these respects , Papania's job after May 2 was the same as it had
been before May 2 when he was foreman on the third shift . The evidence is in
conflict, however, as to whether Papania and also Heis had any such authority in
directing the work of the machine operators as would make them supervisors within
the meaning of Section 2 ( 11) of the Act.
According to Papania , his job on the first shift was the same as his job as fore-
man on the third shift "except for the responsibility ." He explained that, as third
shift foreman , he assigned operators to machines and to new jobs, unless on special
work Babbitt made a particular assignment to -an operator , and that he also per-
mitted operators to go home when they were sick . But 'according to Papania,
Superintendent Babbitt was always in the plant during the first shift , although
perhaps in another room , and Papania , during his short service on the first shift,
merely relayed Babbitt's instructions to the girl operators . But Babbitt testified
that he had informed Papama, Papania was in complete charge of the first shift
when Babbitt was not there . Upon Babbitt 's testimony to this effect and Papania's
admission that Babbitt had said he was to be an assistant foreman when he was
transferred to the first shift on May 2, I conclude that Papania did in fact have
authority responsibly to direct the work of employees on his shift and that not only
he, but also Heis, whose job was identical on the second shift, were supervisors
within the meaning of Section 2(11) of the Act. Consequently they were not
employees within the appropriate unit which the Union sought to represent and
neither they nor their cards may be counted in determining whether the Respondent
was designated as bargaining representative by a majority of the employees in the
unit. I further find that, with the proper exclusion of Papania and Heis as super-
visors, the appropriate bargaining unit of production employees which the Union
seeks to represent , consisted on May 10, 1960 , of.only 13 employees.
My conclusion that Papania and Heis, as well as Foreman Michaels, were super-
visors has an even broader significance affecting the Union 's claim of majority. For
these three supervisors along with employee Whitaker not only started the Union's
organization of the Respondent 's employees by their visit to Business Manager Cook's
office on May 9, but thereafter procured the signatures of employees on the re-
maining seven of the bargaining authorization cards submitted by the General
Counsel and the Union at the hearing . Thus, according to uncontradicted evidence,
Foreman Michaels procured the signature of Louise Anglian; 6 Papania procured the
signatures of employees Fay Gullett, Eve Fowlie, Rosie Thompson , and Joyce
Stoelting ; and Heis, in the company of employee Whitaker, procured the signatures
of employees Betty ' Jo Noah and Robert Kichler. In this situation , I find that the
seven cards procured by Supervisors Michaels, Papania, and Heis are not to be
counted as clearly free designations by the employees of the Union as their exclusive
bargaining representative , and that the only apparently free and effective bargain-
ing authorization submitted by the Union was that of employee Lonnie Whitaker.
Upon the foregoing considerations , I conclude that the Union has shown only one
effective bargaining authorization from the 13 employees composing the production
unit appropriate for collective bargaining . Since the Union was therefore not
freely designated as exclusive bargaining representative by a majority of the em-
ployees in the unit, the allegation of the complaint that the Respondent has refused
to bargain with the Union in violation of Section 8(a) (5) and ( 1) of the Act, has not
been proved . I shall therefore recommend a dismissal of this allegation of the
complaint.
r. These findings are made upon uncontradicted evidence given specifically as to Papania's
job. As has been noted , Heis' job was the same as Papania's
9 Mrs Anglian had earlier been asked to sign a card by Whitaker She testified, but
Whitaker denied, that Whitaker had grabbed her hand to force her to sign. I find it
unnecessary to resolve this conflict in the testimony in view of my finding that Mrs
Anglian's card is not, in any event , to be counted toward the Union ' s possible majority,
because it was procured by Foreman Michaels
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint , and coercion
In support of his contention that the Respondent interfered with, restrained, and
coerced its employees in the exercise of their right to join and support the Union
as their bargaining representative, the General Counsel relies upon the testimony
of employees concerning numerous statements made, and questions asked by,
Superintendent Lew Babbitt. There was also testimony concerning several inci-
dents involving Foreman Michaels and Vice President Nicholas Carter.
As to Foreman Michaels, employee Robert Kichler testified that about a week
after May 11, Michaels told Kichler that, ",if the Union did not get in, he thought
that . [the Respondent] would fire the men and hire women because they
would be less apt to join the Union." Since Michaels did not appear as a witness,
this testimony is uncontradicted and I accept it. But I do not find, under the cir-
cumstances in this case, that Michaels' statement to Kichler was an unfair labor
practice chargeable to the Respondent. For, although a foreman, Michaels was
one of the instigators of the union movement among the employees, and his state-
ment was obviously intended to encourage rather than discourage affiliation with
the Union. It was therefore squarely opposed to the opposition which the General
Counsel contends was the position of the Respondent. It is clear, and I conclude,
that the Respondent was not responsible for Foreman Michaels' statement to Kichler.
The testimony as to a single incident directly involving Vice President Nicholas
Carter is quite different. Employee Dorothy Ohmer, who did not sign a union card,
testified that while she was riding to work with Carter on May 12, Carter asked her
whether anyone had asked her about joining the Union, and that she told Carter
that Larry Heis had asked her twice, the second time when Heis and Lonnie Whitaker
had visited her home, but that she had refused to sign a union card. Carter denied
questioning Mrs. Ohmer or referring to the Union in any conversation with Mrs.
Ohmer. He testified that Mrs. Ohmer told him that Heis and Whitaker had visited
her and asked her to sign a card; that Carter asked her, "Did you?" and that Mrs.
Ohmer did not answer but just smiled. I credit Mrs. Ohmer's testimony. Further-
more, in view of the credible evidence of Superintendent Babbitt's interrogation of
the employees and his antiunion statements to employees which is considered below,
I find that Vice President Carter's interrogation of Mrs. Ohmer tended to interfere
with the Respondent 's employees ' free exercise of their right to self-organization and
was therefore an unfair labor practice within the meaning of Section 8(a)(1) of
the Act.
We come finally to a consideration of the evidence relating to Superintendent Lew
Babbitt's interrogation of employees , his statements to some of them that the Re-
spondent knew the names of employees who were supporting the Union; his threats
of a plant shutdown and loss of jobs if the Union succeeded in organizing the Re-
spondent's employees ; his statements to employees that the Respondent was con-
templating a wage increase and paid lunch periods and holidays; and an instance
in which he allegedly assigned difficult work to employee Eve Fowlie , because she
had signed a union card. To a surprising extent , Babbitt in his testimony either
admitted or failed to deny having questioned employees and having made some of
the remarks attributed to him in the testimony of the employee-witnesses. He at-
tempted to explain this in some instances by saying that he was "kidding around"
with the employees with whom he was apparently quite friendly, although at one
point he blunted this explanation and the likely effect of his remarks with the
comment that he had spoken to the employee "not in a laughing manner, [but] I
meant it as a joke more or less." In other cases , he claimed that apparent threats
of a plant shutdown and loss of jobs were not actually made in exactly the manner
or language to which the employees testified , but were mere statements of what the
Respondent might be forced to do if the Union were successful and made it difficult
for the Respondent. But his explanations are not persuasive. On the contrary, in
view of the apparent truthfulness of the General Counsel 's witnesses and the num-
ber of incidents which unquestionably occurred and which Babbitt either admitted,
failed to deny , or attempted to explain , it appears to me and I find in the detail set
forth below, that Babbitt did in fact interrogate employees, tell employees the
Respondent knew who were supporting the Union, threaten a plant shutdown and
loss of jobs, hold forth a reasonable expectation of a raise and paid lunch periods
and holidays , and, in one instance, tell an employee that he had discriminated against
employee Fowlie by giving her a difficult job assignment.
Upon Superintendent Babbitt's admission of the first of the following four inci-
dents and the uncontradicted testimony of the employees involved in all four
incidents, I find that Babbitt interrogated employees in the following cases:
THE HAMILTON PLASTIC MOLDING COMPANY 385-
(1) In May 1960, Babbitt asked employee Robert Kichler if he had signed a
union card.?
(2) On Saturday, May 14, Babbitt asked employee Louise Anglian whether
anyone had requested her to sign a union card.
(3) On May 16, Babbitt asked employee Gladys Barger whether Papania had
contacted her about the Union while she was sick and away from work.
(4) About the same time and also at other times Babbitt asked Gladys Barger
whether she was going to vote for the Union.
Upon the credible testimony of two employees, I also find that Superintendent
Babbitt told each of these employees, in effect, that the Respondent knew which
employees were, or had been, supporting the Union. Thus, I find, upon employee
Eve Fowlie's testimony, that Babbitt told her that Frank Papania was the leader of'
the union group and had been seen at the union hall when he had taken time off'
from work for a leg or foot injury.8 Upon employee Gladys Barger's uncontra--
dicted testimony, I find that on or about May 16, Babbitt told her that if Barger
and employee Joyce Stoelting voted against the Union, they would not have anything-
to worry about because they knew how almost everyone was going to vote. I also
find upon employee Barger's further testimony that Babbitt also told her that
employee Dorothy Ohmer had made a report to President Mistler and Vice President
Carter concerning a visit made by Papania, Heis, and Whitaker to her home to get
her to sign a union card and the Respondent knew six of the employees who had'
signed cards.
Five of the employees testified as to six separate conversations in which Babbitt
threatened a plant shutdown or a loss of jobs if the Union should succeed in organiz-
ing the employees. Babbitt admitted having made the statements attributed to him'
in the first three incidents as they are summarized below, did not testify as to the
fourth, and sought to explain the remaining two by claiming that he merely told'.
the employees what the Respondent might do if the Union were successful and'
the employees went on strike. Upon my appraisal of the evidence in this situation, I
credit the testimony of the employees as to these incidents and find that:
(1) Babbitt told employee Gladys Barger that "before [the Respondent] let the
Union in, they would sell out and move to California."
(2) Superintendent Babbitt told employee Eve Fowlie that if the Union got
in, they were all going to be out of work, and that the Respondent would shut the
plant down.
(3) Superintendent Babbitt told employee Robert Kichler that "if the Union would
get in . Nick and Eldon would close down the company."
(4) Superintendent Babbitt said to employee Louise Anglian that "none of us
would have a job if the Union came in."
(5) Superintendent Babbitt told employee Gladys Barger that if the Union got
in, they would lay off all the girls and that the foremen, the tool and diemaker, and,
the two owners would operate the machines.
(6) Superintendent Babbitt told employee Betty Jo Noah in a telephone conversa.
tion that there was a "stink" around the plant; that it was the Union; that Noahi
could vote for the Union but if the Union got in "there was going to be lot of people
out of work down there."
Employees Gladys Barger and Eve Fowlie also testified that Superintendent Babbitt
spoke to them about a raise and paid lunch periods and holidays.9 According to.
Mrs. Barger, Babbitt told her that "if the Union didn't get in," the girls would
probably get a raise and would be paid for a half hour lunch period and holidays.
Eve Fowlie's testimony was that Babbitt told her that although he did not have too,
much against the Union, a small place like the Respondent's plant did not need a
union; that the Respondent's plant was a new plant and the Respondent had "hoped
to work something out"; and that they had considered giving the employees a raise
and paid lunch periods and holidays. In his testimony, Babbitt admitted having told
about 90 percent of the employees on or about May 20, 1960, that the Respondent
7 Babbitt admitted that he asked whether Kichler had signed a card and that, by this
reference, he meant a union card
8 Babbitt denied merely that he told Fowlie that Papania had been seen at the union.
hall and that there was nothing wrong with Papania's foot. He admitted, however, that
after Papania's layoff had been protested by Business Manager Cook, he had told Fowlie
that "Frank was the leader in trying to get the Union in."
9 Counsel stipulated the substance of Eve Fowlie's testimony on this point by quoting.
from a pretrial affidavit given by her to the General Counsel
634449-62-vol. 135-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was considering giving the employees holiday pay . He denied , however , that he had
mentioned the Union. He testified that Barger had asked him why the employees
were not paid for their lunch periods; and that he had replied that the girls worked
only 7V2 hours, that the men, who worked 8 hours, were paid for a 15-minute lunch
period , and that the Respondent had been considering a paid lunch period for the
girls but had "never got around to straighten any of these things out." I credit
Bazger's and Fowlie's testimony, and find that Superintendent Babbitt by the re-
mazks he made to them held out the possibility that, if the Union did not succeed
in organizing the employees , the Respondent would grant a raise and paid lunch
periods and holidays.
One further incident requires discussion. Employee Gladys Barger testified that,
after she returned to work on May 16 following an illness, she told Superintendent
Babbitt that employee Eve Fowlie's hands were sore from working at a particular
job "for quite a few days in a row"; that Babbitt said, "That's not the half of it.
When I get a harder job, I am going to put her on that"; that Barger asked, "Why?"
and that Babbitt said , "Because she signed one of the Union cards." Although Eve
Fowlie appeared as a witness, she did not testify concerning her work nor the difficulty
of any particular job to which she had been assigned. Babbitt denied that Barger
or Fowlie had complained to him about Fowlie's job or that he made the statements
which Barger attributed to him. He further testified that Fowlie's job was one of the
easiest in the shop.
In the absence of any testimony by Fowlie as to her job, I find no satisfactory basis
for a finding that the work assigned to her was in fact unusually difficult . But, on
the conflict in the testimony of Barger and Babbitt as to their conversation, I credit
Barger and find that, regardless of whether Fowlie's assignment was in fact unusually
difficult and wearing, Barger did tell Babbitt that Fowlie's hands had gotten sore
at the work, and that Babbitt did tell Barger that he had given Fowlie the assign-
ment and would give her even a more difficult assignment if one presented itself, all
because Fowlie had signed a union card. I further find that this statement of Babbitt
was such calculated interference, restraint, and coercion of the employees' exercise
of their rights to self-organization, as to be an unfair labor practice within the
meaning of Section 8(a) (1) of the Act.
In sum, upon my foregoing detailed findings of fact, I conclude that the Respond-
ent interfered with, restrained, and coerced its employees in the exercise of their
rights guaranteed by Section 7 of the Act, and thereby committed unfair labor
practices within the meaning of Section 8 (a) (1) of the Act, by Vice President Car-
ter's interrogation of employee Ohmer, and by Superintendent Babbitt's (1) interro-
gation of employees; (2) telling employees that Respondent knew who were support-
ing the Union; (3) threatening a plant shutdown and loss of jobs if the Union were
successful in organizing the employees; (4) holding out to the employees of a reason-
able expectation of a raise and paid lunch periods and holidays if the Union were
not successful; and (5) informing employee Barger that he had assigned, and would
continue to assign, difficult and wearing work to employee Eve Fowlie because Fowlie
had signed a union card.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
It has been found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act. Since the Respondent's unfair labor
practices included threats of a plant shutdown and a loss of jobs, it appears to me
that they constitute a threat of other unfair labor practices in the future. I shall
therefore recommend not only that the Respondent cease and desist from the unfair
labor practices committed by it and take certain affirmative action in order to effectu-
ate the policies of the Act, but also that it cease and desist from infringing in any
manner upon the rights of their employees guaranteed by Section 7 of the Act.io
10 See May Department Stores d/b/a Famous-Barr Company v. N L R B , 326 U.S 376,
affg. as mod 146 F. 2d 66 (C A 8) ; N.L.R B. v. Entwistle Mfg Co., 120 F. 2d 532, 536
(C.A. 4) ; NLR.B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C.A. 9) ; Liberty Coach
Company, Inc, 128 NLRB 160.
MOVING STORAGE NEGOTIATING COMMITTEE, ETC. 387
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local Union No. 156 , Upholsterers' International Union of North America,
AFL-CIO, is a labor organization within the meaning of the Act.
2. By interrogation of employees , by telling employees that it knew who the
adherents of the Union were , by threatening a plant shutdown and loss of jobs if
the Union were successful in organizing the employees , by holding out to the em-
ployees a reasonable expectation of a raise and paid lunch periods and holidays if
the Union were unsuccessful , and by informing an employee that difficult work
had been assigned and would be assigned to an employee because of her support
of the Union , the Respondent has interfered with , restrained , and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, and has
thereby engaged in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
4. The Respondent did not commit an unfair labor practice within the meaning
of Section 8 (a) (5) of the Act.
[Recommendations omitted from publication.]
Moving Storage Negotiating Committee and its Employer Mem-
bers and Van & Storage Drivers Union, Local 389, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men & Helpers of America, Ind.; General Truck Drivers,
Chauffeurs & Helpers Union, Local 692, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Ind.; General Truck Drivers , Warehousemen & Help-
ers Union , Local 235, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen &• Helpers of America, Ind.; and
General Teamsters , Sales Drivers, Food Processors, Ware-
housemen & Helpers Union , Local 871, International Brother-
hood of Teamsters, Chauffeurs, 'Warehousemen & Helpers of
America, Ind. Case No. 21-CA-3891. January 22, 1962
DECISION AND ORDER
On August 31, 1960, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report together with a supporting brief, and the Gen-
eral Counsel filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
135 NLRB No. 54.