The Pearson Bros. Co.

National Labor Relations Board - Board Decisions

Oct 31, 1972

199 N.L.R.B. 1179 (N.L.R.B. 1972)

THE PEARSON BROS . COMPANY
The Pearson Bros . Company and Chauffeurs, Team-
sters and Helpers, Local No. 15, Affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America. Case
38-CA-1359
October 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On July 17, 1972, Administrative Law Judge '
Arnold Ordman issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings,' and
conclusions 3 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of- the Administrative Law Judge and hereby
orders that Respondent, The Pearson Bros. Company,
Galva, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order.
' The title of "Trial Examiner " was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Administrative Law Judge inadvertently substituted , in sec II,B,2,
of his Decision, "Lambert" for "Morrell" as being in charge of the shipping
department That statement is hereby corrected to read, "Employees Fritch,
Bickett , and Lambert testified that Morrell was in charge of, and gave orders
to, the employees in the shipping department "
3 In adopting the Administrative Law Judge 's conclusion that the layoffs
were discnminatonly motivated , we note that such conclusion is further
strengthened by evidence not cited in his Decision . On January 14, 1972,
employee Washburn , known by Respondent to have attended the union
meeting on January 10 and to have signed a union authorization card, ques-
tioned Supervisor Peve concerning the nine employees laid off on January
13. Peve's response was, "You know damned well what happened. If you
don't keep your mouth shut, you'll be next," and Washburn was laid off that
night. Thus, we find that, while the evidence relied on by the Administrative
Law Judge is sufficient to support the finding that the layoffs were violative
of Sec. 8(aX3) and (t) of the Act, Peve's reply provides additional conclusive
evidence that Respondent discnmmatonly selected the union adherents for
layoff.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
1179
ARNOLD ORDMAN, Trial Examiner: This case was tried
in Peoria, Illinois, on April 10, 11, and 12, 1972, on a com-
plaint issued against Respondent by General Counsel on
February 29, 1972, pursuant to charges filed on January 18
and February 23, 1972. The complaint, as amended at the
hearing,' alleges interrogation and threats in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, and the layoff and/or discharge of 12 employees
in violation of Section 8(a)(3) and (1) of the Act. Respon-
dent denies that it committed any unfair labor practices.
Upon the entire record, upon my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and by Respondent, I make the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent, an Illinois corporation, manufactures
and sells liquid manure spreaders at its plant in Galva,
Illinois . Both its interstate shipments of goods and materials
and its receipt of goods and materials from outside the State
of Illinois exceed $50,000 in value . Respondent admits, and
I find, that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Respondent further admits that the Teamsters Union,
the Charging Party, is a labor organization within the
meaning of Section 2(5) of the Act and, for purposes of this
proceeding, that the Molders Union (see fn. 1, supra) is a
labor organization within the meaning of that section. I so
find.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background; The Issues
On January 3, 1972, Respondent had at its Galva,
Illinois, plant a relatively stable complement of approxi-
mately 75 production and maintenance employees. About
17 of these employees were on a part-time schedule. There
was no union at the plant.
Dissatisfaction with certain working conditions gave
rise to some concerted activity among the employees in
1971. When the employees brought their dissatisfactions to
the attention of management, a Cooperation Committee
was formed at management's suggestion in late August or
early September 1971 to deal with the employees grievances.
i At the opening of the heanng General Counsel moved to amend the
complaint by adding an allegation that International Molders & Allied
Workers Union was a labor organization within the meaning of Sec. 2(5) of
the National Labor Relations Act, as amended, and additional allegations
relating to further interrogation and threats in violation of Sec 8 (a)(1) of the
Act Respondent opposed the motion to amend limiting its opposition to the
allegation relating to the Molders Union and pleading surprise As the facts
hereinafter set forth, the Molders Union was more directly involved in the
instant controversy than the Charging Party. The motion to amend was
granted with leave to Respondent to renew its request if it could show
prejudice during the course of the heanng No claim of such prejudice was
made or tendered and the ruling on the motion stands.
199 NLRB No. 181
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Committee was composed of five employees repre-
senting different departments in Respondent's plant and
several meetings were held between the Committee and
management over the next few months. Talk of union or-
ganization which had taken place among the employees
before the Committee was formed dwindled during the brief
existence of the Committee. Late in December and early in
January 1972 it revived, culminating in a meeting at the
Wagon Wheel Tap in Galva, Illinois, on January 10, 1972,
where a number of employees signed authorization cards
for the Molders Union. A few more Molders Union cards
were signed within the next day or so, making a total of 22
card signers among the approximately 75 employees in
Respondent's employ. On January 13, 1972, 3 days after the
Wagon Wheel meeting, the employment of nine employees
was admittedly terminated and on the following day, Janu-
ary 14, three more employees were adnuttedly termi-
nated.2 All 12 employees terminated were full-time employ-
ees and were among the 22 who had signed cards. General
Counsel contends that the selection for termination of these
12 union adherents from a work force of approximately 75
production and maintenance employees was dictated by
antiunion considerations. Respondent counters with the
claim that the terminations were the result of a reduction in
force dictated by a falloff in available work and that the
selections were made on the basis of the versatility of em-
ployees to meet the needs of a continuing operation with a
more limited work output.
During this same period Respondent's officials alleged-
ly engaged in interrogation and threats directed against the
union activity of the employees. Involved in this conduct
were Carl Peve and Lester Morrell who, General Counsel
contends and Respondent denies, were supervisors for
whose actions Respondent was answerable.
The issues presented are:
1. Whether Carl Peve and Lester Morrell were supervi-
sors within the meaning of Section 2(11) of the Act.
2. Whether Respondent's officials , including Peve and
Morrell, engaged in interrogation and threats in violation of
Section 8(a)(1) of the Act.
3. Whether the layoff and/or discharge of 12 union
adherents on January 13 and 14, 1972, was discriminatorily
motivated in violation of Section 8(a)(3) and (1) of the Act.
B. The Supervisory Status of
Peve and Morrell
1. Carl Peve
The evidence as to the supervisory status of Carl Peve
was in sharp conflict. Generally speaking, Respondent's
president, Leland Pearson, its vice president, Vernon Pear-
son, brother of Leland, and E.L. Mendenhall, assistant to
the president, denied that Peve was a department head,
foreman, or leadman, and asserted that Peve exercised no
supervisory functions. Vernon Pearson testified that Peve
had no title or job classification as such and that his sole
function was that of troubleshooter. Mendenhall testified
that Peve was a troubleshooter and an inspector. Leland
Pearson testified that Peve was a troubleshooter, expediter,
and inspector, that one of his functions was to oversee the
operations of the paint department but that Peve operated
only under the direction of Gene Nelson, Respondent's
general foreman. Carl Peve's own testimony was to the ef-
fect that he was not a leadman, foreman, or department
head, that he exercised no supervisory functions and that he
did not train new employees. Peve testified further that he
performed the function of troubleshooter and inspector and
that he never gave an order to an employee unless specifical-
ly directed to do so by the general foreman, Gene Nelson,
or by one of the Pearson brothers. It also appeared that Peve
was paid at an hourly rate whereas all the admitted supervi-
sors in Respondent's hierarchy were on a salary basis.
On the other hand, testimony of employees was to the
effect that Peve was identified to them by management as
being a supervisor and that Peve, in fact, exercised supervi-
sory functions. Employee Harry Fritch testified that he was
hired by Vernon Pearson in July 1970, that Vernon Pearson
took him on a tour of the plant, and identified Carl Peve as
assistant shop foreman. Employee Edwin Jones, also hired
by Vernon Pearson when he applied for work in mid-De-
cember 1971, testified that Vernon Pearson introduced him
to Carl Peve with the statement, "Ed Jones, this is Mr. Carl
Peve. This is your Foreman-your boss. You do what he
says." Employee James L. Bainbridge, hired in September
1971, testified to like effect. Vernon Pearson introduced
Bainbridge to General Foreman Nelson and Carl Peve. Ver-
non Pearson left. Nelson then told Bainbridge that Nelson
and Carl Peve "run the shots [sic] and Carl would be my
boss." Employee William Washburn, hired by Vernon Pear-
son in September 1971, testified that Vernon Pearson took
him to the paint department on the day he started work,
introduced him to Carl Peve and said, "This is the man you
will be working under."
Testimony was also given by employees as to Peve's
functions. Harry Fritch who was transferred to the paint
department after a few months in the shipping department,
testified that his assignments in the paint department were
given to him by Carl Peve and that Carl Peve also told other
employees in the paint department what to do. Bainbridge
likewise testified that Peve gave directions to the employees
in the paint department. In addition, employees Harry
Lambert, William Wessels,4 Rodney Mackie, and Joseph
Bickett testified that Peve issued orders and assignments to
employees and directed them to redo jobs inadequately or
improperly done. With respect to other aspects of Peve's
authority, Lambert testified that Lester Morrell told him he
would have to consult Peve or Nelson about a possible
transfer to the shipping department, that he did consult
Peve and, after his third effort in this regard, Peve told him
his transfer was effective. William Washburn testified that
he discussed overtime work with Peve and that on a few
occasions Peve gave him time off. Rodney Mackie stated
that Peve gave him his assignments, informed Mackie that
his job performance was inadequate, watched his work, and
later discharged him.
Even more significant in this regard was other testimo-
ny vouchsafed by Respondent's top officials. Vernon Pear-
2 While these events were taking place several employees signed authonza- 3 There were about six employees in the paint department.
lion cards for the Teamsters Union. 4 The incorrect spelling "Wessells " was corrected at the hearing.
THE PEARSON BROS . COMPANY 1181
son, a very difficult or confused witness who, as already
noted, denied Peve's supervisory status, acknowledged that
on occasion, when he or his brother were absent from the
late afternoon shift and the part-time employees were at
work Peve was in charge of, and responsible for, the opera-
tion on that shift. President Leland Pearson conceded that
Peve could fairly be characterized as a multi-department
leadman. Leland Pearson admitted also that, in an affidavit
he had furnished to a Board investigator in February 1972,
he had listed Carl Peve among Respondent's foremen' and
leadmen and stated further that among Peve's duties was
that of overseeing the paint room. In this connection Leland
Pearson testified also that foremen or leadmen had the au-
thority to recommend the hire or discharge of employees
and that in the event of such a recommendation the odds
were very high that the recommendation would be accepted.
Relevant here, also, is the fact that Respondent, on or about
December 29, 1971, prepared a complete roster of its rank-
and-file employees from which supervisory personnel were
excluded and that the name of Peve was not on that list.5
In sum, it appears that Peve's job as inspector, expedit-
er, and troubleshooter gave him wide range and scope
throughout Respondent's enterprise with special attention
to the paint department. Cogent evidence, not seriously
challenged, establishes that Peve made job assignments, is-
sued orders, and arranged for transfers, temporary or other-
wise. Respondent sought to explain away these obvious
indicia of supervisory status on the ground that Peve did not
bear the title of foreman, department head, or leadman, that
Peve was paid an hourly rate rather than a salary, and that,
to the extent he gave orders to employees, he was in each
instance merely relaying specific directives from General
Foreman Gene Nelson.
The explanations are vulnerable. As indicated, several
employees testified that Vernon Pearson, upon their en-
trance into employment, introduced or identified Peve to
them as assistant foreman or boss or the man they would
take orders from or work under. I credit that testimony.
Leland Pearson acknowledged that he had listed Peve
among the foremen and leadmen in Respondent's employ;
that Peve could fairly be called a multi-department lead-
man, and that, as president of Respondent, he gave great
weight to recommendations of foreman and leadman with
respect to hire and discharge of employees. The fact that
Peve was paid on an hourly rate rather than on a salary basis
is not controlling; not the method of payment or the title,
but the functions performed and the authorities possessed
or exercised are the criteria for the determination of supervi-
sory status. Finally, the claim that Peve exercised no initia-
tive and made no independent judgment in the myriad
situations where he gave orders or made assignments to
employees, but that he acted in each instance only on specif-
ic directives from Foreman Gene Nelson strains credulity.
In determining the supervisory status of a specific indi-
vidual it is settled law that "section [2(11) of the Act] is to
be interpreted in the disjunctive ... and the possession of
5 Respondent sought to explain the absence of Peve 's name on the ground
that Peve was undergoing hospitalization at the time the list was prepared.
Yet it appears that employee Carl Nelson who was also absent from work
from October 1971 until after January 13 , 1972, was included in the employee
roster
any of the authorities listed in § 2(11) places the employee
invested with this authority in the supervisory class." Ohio
Power Co. v. N.L.R.B., 176 F.2d 385, 387 (C.A. 6, 1949), cert.
denied 338 U.S. 899; N.L.R.B. v. Roselon Southern, Inc., 382
F.2d 245,247 (C.A. 6,1967); Federal Compress & Warehouse
Co. v. N.L.R.B., 398 F.2d 631 (C.A. 6, 1968). Moreover,
Section 2(11) of the Act "does not require the exercise of the
power described for all or any definite part of the
employee's time. It is the existence of the power which
determines the classification." Ohio Power, supra, 388.
On this basis the evidence in the record firmly estab-
lishes, and I find, that Carl Peve is a supervisor within the
meaning of Section 2(11) of the Act and an agent of Re-
spondent as alleged in the complaint.
2. Lester Morrell
The situation respecting Morrell is not too dissimilar
from that respecting Carl Peve and the relevant evidence
can be more briefly summarized. Respondent's position
generally is that Morrell, like Peve, exercised no supervisory
functions . Like Peve, too, Morrell was paid on an hourly
basis. His hourly rate was $2.65, 65 cents more than the next
most highly paid employee in the shipping department
where Morrell worked. Morrell's name like Peve's was not
included in the roster of rank-and-file employees prepared
by Respondent. The reason assigned for that omission in
Morrell's case was that Morrell was deemed to be attached
to Respondent's office staff. Actually, Morrell had a small
office in the immediate area of the shipping dock. Morrell
spent most of his working time in the shipping dock area.
Morrell described his own job. He was a shipping clerk,
"more or less a lead man." He admitted that when there was
more than one truck to be loaded, he "sometimes" picked
the fellows to do the loading, that he "frequently" assigned
an employee anotherjob when the employee completed the
job he was working on, that he would reassign employees,
as necessary, when such jobs came in, and that generally his
responsibility was to see that the work in the shipping de-
partment was done properly, and that there was no "goof-
ing-off." In addition, Morrell was responsible for training
new employees in his department and was admittedly con-
sulted by Peve or General Foreman Nelson as to how the
employees in his department were developing. Overtime
work in the department was frequent but, according to Mor-
rell, he did not direct employees to do overtime work but
"asked" them.
Employees Fritch, Bickett, and Lambert testified that
Lambert was in charge of, and gave orders to, the employees
in the shipping department. Lambert, who was transferred
to that department at his own request was told by Peve that
he would be working for Morrell. According to Lambert,
Morrell would make the work assignments to the employees
when the buzzer sounded for the beginning of work in the
morning, make additional assignments, as needed, and reas-
sign employees to take care of such jobs.
There was also extensive testimony by management
officials as to Morrell's duties and responsibilities. Menden-
hall, assistant to the president, identified Morrell as ship-
ping clerk and, in response to a question as to who was head
of the shipping department which had a normal comple-
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of about four employees, replied, "The shipping clerk
is head of the department as such ." Vernon Pearson testified
that Morrell's job was "seeing to it that the trucks were
properly loaded and took care of the paper work on it," and
that in the discharge of this function Morrell told the ship-
ping department employees what to do. President Leland
Pearson also identified Morrell as shipping clerk but con-
ceded that Morrell could be regarded as shipping depart-
ment foreman. Leland Pearson also conceded that Morrell
would be consulted on occasion when the question of a
wage increase for a shipping department employee was
raised.
Morrell was, of course, answerable to General Fore-
man Nelson and to the Pearson brothers. On the other hand,
the evidence is clear that, subject to that control, Morrell
was in complete charge of the shipping department, spent
most of his time on the shipping dock, and actively directed
the work of the shipping department employees who, in
turn, regarded Morrell as their superior. The testimony of
both Pearson brothers and Mendenhall essentially confirms
that Morrell had this status. Upon all the relevant evidence,
and in the light of the precedents and authorities cited in the
discussion concerning Peve, I find that Lester Morrell was
a supervisor within the meaning of Section 2(11) of the Act
and an agent of Respondent as alleged in the complaint.
C. Interrogation and Threats
As already indicated, in late August or early Septem-
ber 1971 a Cooperation Committee was formed to deal with
grievances of the employees concerning wage inequities and
working conditions . A series of meetings were held between
the Cooperation Committee and management regarding
these matters and some steps were taken to meet employee
complaints . As already noted also , talk of union organiza-
tion dwindled when the Cooperation Committee was
formed but before too long talk of union organization re-
vived, culminating in the meeting of January 10, 1972, at the
Wagon Wheel Tap where a number of the employees signed
authorization cards for the Molders Union.
William Wessels , hired as a full-time custodian on Oc-
tober 16, 1961, had his preemployment interview with Ver-
non Pearson . Pearson explained that the lack of cleanliness
in the restrooms and the plant generally was a source of
dissatisfaction to the employees and it would be Wessels'
job to remedy that situation. Wessels asked whether in view
of these troubles, Respondent had any kind of a shop union.
Vernon Pearson replied in the negative and explained that
Respondent did not need a union , that the problems would
be worked out, and that by December the employees would
get a raise and would be given grade classifications . Wessels
was terminated on January 13, 1972.
In mid-December 1971 employee Marshall Geirnaeirt,
terminated on January 13, talked to Vernon Pearson about
a raise . The question of raises and wage inequities was a live
issue in the meetings of the Cooperation Committee with
Respondent . In that connection Geirnaeirt commented,
"The boys are kind of on their horse. You know what's
going to happen, don't you? . . . There's going to be a
Union." Vernon Pearson replied, "Well, if there is, I'm
going to shut the doors ." I credit Geirnaeirt's testimony.
Harry Fritch, terminated on January 13, testified that
on January 10, 1972, the day the Wagon Wheel Top gather-
ing was scheduled, Peve came to him at the plant in mid-
afternoon just before quitting time. Fritch stated that Peve
asked whether he was going to the "big meeting." Fritch
asked, "What big meeting?" and Peve replied, "You aren't
fooling us we know about it, and I bet I can even tell you
who gave you the word." Peve added, "you fellows are going
to fool around and they will close the door and we will all
be out of a job." Peve denied making any such statement
to Fritch. Indeed, Peve, who had returned to work on Janu-
ary 4, 1972, after hospitalization and who worked contin-
uously thereafter during the period of the January 10
Wagon Wheel gathering and the January 13 and 14 layoffs,
denied that he had any knowledge of union activity or any
awareness of union activity until the week of January 17. In
view of the widespread nature of that activity, the layoffs of
January 13 and 14, and the discussion of both the activity
and the layoffs which admittedly went on in the plant, it is
difficult to believe that Peve, whose job required him to
operate throughout the plant, could have been unaware of
such activity and discussion. I credit the testimony of Fritch
as to his conversation with Peve on January 10.
The Wagon Wheel gathering of the employees took
place later that afternoon after regular working hours. Presi-
dent Leland Pearson was also at the Wagon Wheel Tap.
Thereafter he returned to the plant. William Stephen Walk-
er, who had been a recent employee of Respondent, ap-
proached Leland Pearson to ask for reemployment. In the
course of the ensuing conversation, Leland Pearson asked
Walker if he knew anything about a union being organized.
Walker said he did not and Leland Pearson commented that
he did not dare talk to any of his employees about union or
about any union activity. I credit Walker's testimony.
Bainbridge was among the employees terminated Janu-
ary 13, 1972. The preceding afternoon, according to Bain-
bridge, Peve asked him what he thought about the Union.
Bainbridge replied that he was for it. The following af-
ternoon Peve reopened the subject by asking Bainbridge
whether he was still of the same mind about the Union.
When Bainbridge said yes, Peve told him, "You know,
you're going to be in big trouble. You and a lot of other boys
can lose their jobs over it." Bainbridge replied, "I can't
afford to lose my job but I think this place needs a union
to clean it up." He added, "It's a hell of a shame I can't voice
my own opinion without something like this happening."
Very shortly after this conversation , at quitting time,
nine employees, Bainbridge among them, received their ter-
mination notices . Peve , of course , denied engaging in the
quoted conversations with Bainbridge. For reasons set forth
in connection with the Fritch incident, I do not credit Peve's
denial and find that the conversations occurred as Bain-
bridge testified.
Employee Edwin Jones , according to his testimony,
had a similar experience. Jones testified that during the
noon break on January 12 Peve approached him and, adjur-
ing him to tell the truth , asked whether he was for a union.
Jones replied, "Yes, I am for a union. We need one here."
Peve shook his finger in Jones ' face and said , "That's all I
wanted to know." Jones' employment was terminated on
January 14. As with Fritch and Bainbridge, Peve denied
THE PEARSON BROS . COMPANY
that this conversation occurred. I credit the testimony of
Edwin Jones.
LaVern Charlet, manager of the industrial and munici-
pal equipment division and admittedly a supervisor and
agent of Respondent, was also involved in the matters here
under consideration. Leonard Dunn was among the nine
union adherents laid off at quitting time on January 13.
Immediately upon receiving his termination notice, Dunn
walked into the truck mount office where Charlet was en-
gaged in a conversation with Bruce Bryner and employee
Vern Frail. Charlet volunteered that "if the plant went Un-
ion why Lee [Leland Pearson] would shut the place down."
Dunn, obviously upset at his termination, retorted, "He
might as well shut it down and move the son-of-a-bitch to
Russia." Charlet admitted, that he had had a conversation
with Dunn at the time and place and under the circum-
stances to which Dunn testified but stated that to "the near-
est of my recollection" the conversation consisted of Dunn's
statement that he would never have been laid off if there
had been a union in the plant and Charlet's rejoiner that he
did not think anyone at Pearson's was interested in a union.
To the question whether he had said Leland Pearson would
shut down the plant if it went union, Charlet first replied,
"No, sir, I don't believe I made any statement like that," and
upon further questioning by Respondent's counsel, stated
that he did not make a statement like that. I find Dunn's
recollection more certain and accurate in this regard and
conclude that Charlet did make the statement in question.
Leland Pearson, Vernon Pearson, and LaVern Charlet
are admittedly supervisors and agents of Respondent. The
evidence relating to their conduct and statements, summa-
rized above, adequately justifies a finding of interrogation
and threats violative of Section 8(a)(1) of the Act. The con-
duct and statements of Carl Peve, whom I have found to be
also a supervisor and agent of Respondent, furnish addi-
tional instances of coercive interrogation and threats. In
sum, the evidence amply warrants a finding that Respon-
dent violated Section 8(a)(1) of the Act.
D. The Discharges on January 13 and
14, 1972
Respondent employed about 75 production and main-
tenance employees. Respondent had never had a major lay-
off. Beginning on January 10, 1972, and within 2 days
thereafter, 22 of these 75 employees signed cards designat-
ing the Molders Union as their bargaining representative.
On January 13 and 14, 12 of these 22 card-signers were
terminated, 9 on January 13, 3 more on January 14. No
nonunion adherents were terminated.
Respondent had occasion to learn the identity of the
employees who were union adherents. Ten of the 12 em-
ployees who were terminated attended a meeting at a tavern
in Galva, Illinois , known as the Wagon Wheel Tap, on the
afternoon of January 10, following the end of the regular
work shift .6 Harry Lambert, a prime mover in the union
organizational campaign, arranged the meeting to rally sup-
port for the Molders Union by obtaining signatures to au-
6 These 10 employees were James Bainbridge , Harry Lambert, Harold
Potter, Leonard Dunn , Jerry Smith , Harry Fritch, Marshall Geirnaeirt, Ed-
win Jones , Bernard Strouse , and William Washburn.
1183
thorization cards. As indicated by Peve's inquiry of employ-
ee Fritch as to whether Fritch was going to the "big meet-
ing" and by Peve's accompanying comments, it is apparent
that Peve, at least, knew about the meeting before it took
place. Lester Morrell, already identified herein, was present
at the meeting.' Leland Pearson, Respondent's president,
and LaVern Charlet, manager of Respondent's industrial
and municipal division, came into the tavern during the
course of the meeting and stayed for a while.8 Morrell, of
course, and Leland Pearson and Charlet also, had an oppor-
tunity to observe who was present.
The 11th and 12th employees terminated, Joseph Bick-
ett and William Wessels, were not at the meeting. However,
Morrell had had discussions concerning the Union with
each of them prior to their terminations.
General Counsel argues that these facts alone, that all
12 employees who were terminated were union adherents,
that union adherents were far the lisser part of
Respondent's employee complement, and that Respondent
had opportunity to know of the identity of the union adher-
ents, are themselves cogent evidence of unlawful discrim-
ination. In support of this position General Counsel cites F.
W. Woolworth Company, 25 NLRB 1362, 1372-1374 (1940),
enfd. in pertinent part 121 F.2d 658 (C.A. 2, 1941); N.L.R.B.
v. Camco, Inc., 340 F.2d 803 (C.A. 5, 1965); Montgomery
Ward & Co., Inc. v. N.L.R.B., 107 F.2d 555 (C.A. 7, 1939).
Supplementing this contention is the evidence, already sum-
marized, that Respondent regarded the advent of a union
among its employees with considerable disrelish and, as
manifested by the statements of admitted supervisory offi-
cials as well as by the statements of Peve, made no secret
of its hostility to union organization.
It is arguable that, without more, these facts would
warrant a finding of discriminatory discharge. I find it un-
necessary to, and do not adopt, this contention. However,
the showing here made calls, at the very least, for a critical
scrutiny of the reasons assigned by Respondent for the ter-
minations. See Montgomery Ward & Co., Inc. v. N.L.R.B.,
supra.
These reasons are twofold: first, that a decline in
Respondent's operational needs justified a reduction in
Respondent's work force for economic reasons, and, sec-
7 Morrell did not sign a card He informed Strouse, in response to the
latter's inquiry, that he did not sign a card because it would hinder his
chances of getting a salaried position In reply to a similar inquiry Morrell
told Bainbridge that he could not sign a card because he was a boss Accord-
ing to Strouse and Bainbridge , Morrell was present at the tavern while the
cards were being signed. Morrell testified that he did not arrive at the tavern
until 5 p in., that he did not know union cards were being signed , and that
he did not know about the card signing until he heard it being discussed in
the plant the following day, January 11 Even on Morrell 's version , he knew
as of January II that the employees at the tavern were signing union cards.
8 Leland Pearson testified that he went to the Wagon Wheel Tap only
infrequently. Several employees who were regular patrons tesitified they had
never seen either Leland Pearson or Lavern Charlet there before. Leland
Pearson explained the striking coincidence of his presence on this particular
occasion on the ground that he wanted to have a private business conference
with Charlet because each of them was leaving on separate business trips
and it was difficult for them to have a private unmterruped conference at the
plant The explanation seems somewhat strained . Moreover , inasmuch as
Leland Pearson knew that a number of his employees regularly patronized
the Wagon Wheel Tap after work , the explanation is even more strained.
However, surveillance was not alleged The fact remains that Pearson and
Charlet were present and Pearson admittedly saw at least some of the em-
ployees who were present
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ond, that the determination of which employees to release
was made on the basis of the importance of particular jobs
to the continued operation of the plant on a reduced pro-
duction schedule and the versatility of the employees to
handle those jobs.
As to the first reason General Counsel, neither at the
hearing nor in its brief, contests the proposition that a re-
duction in force for economic reasons at the time of the
terminations would have been justified. Apart from other
considerations , President Leland Pearson learned on Janu-
ary 12, 1972, that Avco New Products, a major customer of
Respondent, was not going to renew its order. On this state
of the record I find that a reduction in force for economic
reasons would have been justified.
Respondent's corollary defense is that the terminations
were made pursuant to its determination to cut the work
force for economic reasons and that the criterion for the cut
was the importance of the job and the versatility of the
employee. Here Respondent's position was sharply chal-
lenged.
Vernon Pearson testified that the decision as to which
employees to terminate was made by him and his brother,
Leland Pearson, on the morning of January 13 and that he
and his brother had worked on the decision on the evening
of January 12 and on January 13. According to Vernon
Pearson, he consulted with General Foreman Nelson and
John Mercer, head of the fabricating department, before the
final decision was made and was not sure whether he had
also had a discussion with Carl Peve in that regard. Vernon
Pearson initially testified that the criteria governing the se-
lection were the importance of the job to the continuing
business, the versatility of the particular employee, his at-
tendance record, his cooperativeness, and his seniority.
Confronted with a sworn affidavit he had previously fur-
nished the Board, Vernon Pearson agreed that he had there
made no mention of cooperativeness and, on further exam-
ination, reaffirmed his express statement in the affidavit
that seniority of the employees was not a factor in the deter-
mination. Vernon Pearson also acknowledged that no part-
time employee had been laid off, that for several weeks prior
to the instant hearing there was a substantial amount of
overtime work for which Respondent paid time and a half,
that Respondent was currently behind in its production and
that, notwithstanding, none of the 12 employees terminated
on January 13 and 14 had been recalled.
Leland Pearson testified that he learned of the loss of
business from Avco New Products at a meeting which he
and E. L. Mendenhall, his assistant held with officials of
Avco New Products on January 12 at the latter's plant in
Coldwater, Ohio. According to Leland Pearson , he called
his brother, Vernon Pearson, that night, informed him that
a layoff would be required, and discussed with him how to
implement the layoff so as to maintain production at a,
reduced rate. Leland Pearson further testified that Respon-
dent had no layoff procedure and no seniority system, and
that the criterion applied to determine layoff or retention
was the versatility of the particular employee to do the jobs
which would be required in a reduced operation.
General Foreman Nelson confirmed that he had dis-
cussed the impending layoffs with Vernon Pearson a couple
of days before the termination notices were issued. Accord-
mg to Nelson, he advised Vernon Pearson of at least eight
employees whose services could be dispensed with in a re-
duced operation, citing either inadequate work perform-
ance or some other reason for his recommendation. Re-
minded that he had furnished an affidavit to the Board
about 2 months prior to the hearing and a month after the
layoffs, Nelson acknowledged that the affidavit recited only
one employee he had recommended for layoff, Harry Lam-
bert. As already noted, Harry Lambert was a prime mover
in the organizational campaign.
In sum, it appears that despite testimonial suggestions
of a variety of reasons which allegedly entered into the
layoff determinations, the only asserted reason which
emerged was the versatility of the particular employee for
continued operation of the plant on a reduced productivity
schedule. This asserted ground must in the first instance
explain the striking coincidence that its application led to
the discharge of 12 of the 22 union adherents and that every
one of the 50 or more nonunion employees survived this
test.
Moreover, even as applied to the 12 employees termi-
nated, Respondent's asserted ground is vulnerable.
(1) James Bainbridge was hired by Respondent in Sep-
tember 1970 as a spray painter. His wage rate was $3.50 per
hour and he was classified as labor grade 6, the next to the
highest labor grade in Respondent's labor grade scale .9
Bainbridge, who had long experience as a painter, was the
only employee who painted liquid manure spreaders, a ma-
jor item in Respondent's product inventory. At the hearing,
Respondent indicated that it had been dissatisfied with
Bainbridge's work performance since September 1971 and
suggested that he indulged in alcoholic beverages. As to the
latter allegation, the evidence is clear that Bainbridge never
missed a day's work and did a great deal of overtime work.
Respondent did run an advertisement for 3 days for a spray
painter but, significantly, this advertisement first appeared
on January 11, 1972, the day following the meeting at the
Wagon Wheel Tap, a meeting which Bainbridge attended.
Respondent obtained no replacement for Bainbridge and at
the time of the hearing was subcontracting out the painting
of truck mounts at admittedly high rates.
(2) Harry Lambert was hired in August 1970 as a labor-
er and was later transferred to the shipping department. In
both jobs he performed a variety of functions including
substituting for Morrell in the shipping department when
the latter was absent. Lambert was hired at $2.40 an hour
and during the course of his employment received four
raises, the last on January 3, 1972. In labor grade 4 at $3 per
hour, Lambert was the highest paid employee in the ship-
9 The data relating to labor grade and wage scale derives from a roster of
Respondent 's work force prepared by Respondent late in December 1971
and accurately reporting the status of the work force as of January 3, 1972.
The roster, introduced into evidence as G.C. Exh 2, contains a list of the
employees, their starting dates, their rates of pay as of January 3, 1972, and
their labor grades ranked from l to 7 with the higher labor grades awarded
to those employees with the greater skills. Respondent contends that the
roster reflected a rating of the jobs and not of the individuals who held those
jobs The claim is suspect inasmuch as Respondent was free to assign the
individual it deemed most qualified to any particular job, the designation of
labor grade was within its discretion , and the roster admittedly included pay
raises effective January 3 which one may fairly assume reflected
Respondent's evaluation of the work performance of the employee on the
particular job.
THE PEARSON BROS . COMPANY 1185
ping department. Immediately below him was Joseph Bick-
ett in labor grade 3 at $2.80 per hour. Bickett was also
discharged. Not discharged but retained were Galloway and
Simmons, the other two employees in the shipping depart-
ment who were classified in labor grade 2 and received $2.60
an hour. Unlike Lambert and Bickett, Galloway and Sim-
mons were not union adherents and did not attend the
Wagon Wheel Tap meeting. Respondent complained that
Lambert was guilty of "a lot of standing around." Only one
specific instance was cited occurring in December 1971. Yet
Respondent gave Lambert a raise as of January 3, just 10
days before his termination.
(3) Joseph Bickett was employed by Respondent in July
1970 on the part-time shift in the paint room and within a
few months was transferred to the full-time shift in the
shipping department. As already noted, Bickett at $2.80 an
hour in labor grade 3 was second only to Harry Lambert in
the shipping department and was above Galloway and Sim-
mons in both pay scale and labor grade. In both the paint
room and in the shipping department, Bickett performed a
variety of jobs.
(4) Harold Potter, hired in August 1970, was initially
assigned to a number of different jobs in Respondent's op-
eration and was finally assigned to assist Marshall Geirna-
eirt. In addition to grinding the parts which Geirnaeirt cut
out, Potter processed these parts into finished products
utilizing various machines to punch or drill holes, ream the
holes, and tap or thread them as appropriate. Potter was the
only employee doing this work. His labor grade was 4 and
he was one of those given a 15-cent raise as of January 3,
1972. Despite his versatility, Respondent terminated his em-
ployment 10 days later on the ground that his services were
no longer needed.
(5) Leonard Dunn was hired in February 1970 and
worked in the truck mount department where he performed
a number of operations. At the outset some of his time was
spent running errands and picking up tools and supplies
needed throughout the factory. The latter aspect of his work
grew and by the time of his layoff, Dunn was spending most
of his time running errands and making deliveries of spread-
ers to customers within a 100-mile radius of Respondent's
plant. Dunn was in labor grade 3 at $2.55 an hour. Respon-
dent noted that Dunn had trouble standing on his legs too
long. However, Respondent was aware of this problem
when Dunn was hired. This disability on Dunn's part was
due to a heart condition which resulted in his occasional
absence for a day or part of a day for medical treatment.
(6) Jerry Smith was hired in May 1970 and worked in
the tank department. He received four raises, including a
raise of 15 cents on January 3, 1972, raising his salary from
$2.40 an hour to $2.90 an hour. He was in labor grade 4.
Smith performed a variety of jobs including maintenance
welding when the construction and repair crew was too busy
to do such welding. Of the several employees in the tank
department, only Smith and Strouse attended the Wagon
Wheel Tap meeting. Only Smith and Strouse were laid off
from that department.
(7) Harry Fritch was hired into the construction and
repair department in July 1970. He was later transferred to
the shipping department where he got a raise and, in Sep-
tember 1971, went to the paint department. Fritch's labor
grade was labor grade 2; his salary was $2.60 an hour.
Thomson, also at labor grade 2 in the paint department was
paid $2.50 an hour and Paxton, at labor grade 1 in the paint
department, was paid $2.20 an hour. Neither Thomson nor
Paxton was terminated.
(8) William Wessels was hired in October 1971 as a
custodian to take care of deplorably dirty conditions in the
restrooms and the rest of the plant about which the employ-
ees were complaining. The record establishes that Wessels
did a good job in rectifying this situation. Although there is
no indication that the need for Wessels' services abated,
Respondent included him among the employees terminat-
ed. Wessels was in labor grade 2 at $2.50 an hour.
(9) Marshall Geirnaeirt was hired in April 1967 at $2.25
an hour. During his employment with Respondent Geirna-
eirt performed about everyjob in the shop and his versatility
in that regard was known to Respondent. His basic job at
the time of his discharge was operating a flame cutter to cut
patterns out of plate metal. Some time before his discharge,
Respondent installed a new and improved flame cutter.
Respondent indicated that it had a growing dissatisfaction
with Geirnaeirt's work in that he was reluctant to change
procedures with the old cutter and was also reluctant to
adapt to the use of the new cutter. The dissatisfaction, how-
ever, would appear to have been quite recent inasmuch as
Respondent gave him a 15-cent-per-hour raise on January
3, 1972, 10 days before the layoff, and classified him at labor
grade 5 at a top wage rate of $3.30 an hour. More significant
perhaps is the fact that Leland Pearson admittedly saw
Geimaeirt at the Wagon Wheel Tap meeting on January 10.
(10) Edwin Jones was a very junior employee classified
at labor grade 2 in the paint department and was paid $2.50
an hour. At least one employee in that department was
below him. Paxton was classified at labor grade I at $2.20
an hour.
(11) Bernard Strouse went to work for Respondent in
September 1971. Vernon Pearson, who hired Strouse, com-
mented on his broad experience. Strouse had performed all
kinds of welding and carried the title of Certified Welder.
He was put to work in the tank department where he did all
varieties of welding and assembly operations and was com-
plimented on his.work. He was classified in labor grade 5
and was paid $3.25 an hour. Three lower rated employees
in the department were not laid off. Vernon Pearson, com-
menting on Strouse's termination, testified that, according
to Mercer, Strouse was not "a pretty good welder," but
Mercer did not take the stand to verify that statement.
(12) William Washburn was hired on September 22,
1971, as a dipper in the paint department at $2.50 an hour.
He was in labor grade 3 and, on January 3, 1971, was raised
to $2.65 an hour. In addition to dipping and some spray
painting Washburn did various odd jobs. Two lower rated
employees in the department, at labor grades 1 and 2 re-
spectively, were not laid off.
The net of the foregoing summaries is that in several of
the instances Respondent's contention that the people ter-
minated were the least versatile and were unsuited to the
needs of a business which was going to be operated on a
reduced basis is wholly unsupported. Even on the assump-
tion that such a conclusion would have been warranted in
a few instances, the claim advanced by Respondent that this
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the guiding consideration in all 12 instances is patently
untenable. Rather the evidence taken in its totality points
inevitably to the proposition that the unifying thread in all
12 terminations was the union adherence of the employees
involved. Respondent had ample opportunity to learn of the
union adherence. Its hostility to union organization, dis-
closed by its coercive interrogation and threats, was mani-
fest. Moreover, its hostility was unremitting.
Notwithstanding the fact that as of the time of hearing
Respondent was behind in its production and that consider-
able overtime at time and one-half was required, Respon-
dent did not recall any of the 12 employees who were laid
off, ostensibly, for lack of work.10
On all the evidence of record and after due considera-
tion of the arguments and authorities urged by the parties,
I conclude and find that Respondent did not on January 13
and 14, 1972, carry out a reduction in force for economic
reasons, a course of conduct which would have been war-
ranted, but instead utilized the stratogen of a reduction in
force as a pretext to rid itself of union adherents. According-
ly, I find that by terminating the employment of the 12
employees, named in the complaint, on January 13 and 14,
1972, Respondent violated Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Carl Peve and Lester Morrell are supervisors of
Respondent within the meaning of Section 2(11) of the Act
and are agents of Respondent as alleged in the complaint.
2. By coercively interrogating its employees concerning
union activities and by threatening them with reprisals for
engaging in union activities, Respondent has violated Sec-
tion 8(a)(1) of the Act.
3. By laying off and/or discharging the following
named employees:
James Bainbridge Harry Lambert
Joseph Bickett Harold Potter
Leonard Dunn Jerry Smith
Harry Fritch William Wessels
Marshall Geirnaeirt Edwin Jones
Bernard Strouse William Washburn
because of their union activities, Respondent has violated
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
10 Toward the end of the hearing the parties stipulated that 9 of the 12
employees terminated , Bainbridge, Dunn , Jones, Lambert , Geirnaeirt, Beck-
ett, Wessels, Potter, and Smith , applied for unemployment compensation
with the State of Illinois Department of Labor and in response to a question
posed by that agency responded that they lost their last jobs because of lack
of work.
This was, of course , the thrust of the termination notices which the
employees received on January 13 and 14. The date of the applications for
unemployment compensation and the surrounding circumstances do not
appear . Under the circumstances and weighed against the evidence adduced
in the instant hearing, I can attach little , if any, probative weight to the facts
alleged in the stipulation.
REMEDY
To effectuate the policies of the Act, I find it necessary
and appropriate to order Respondent to cease and desist
from the unfair labor practices found and, because of the
character and scope of these unfair labor practices, from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act."
The unfair labor practices found also dictate the pro-
priety of directing affirmative remedial action. Accordingly,
I shall direct Respondent to reinstate the 12 employees,
above-named, who were laid off and/or discharged on Jan-
uary 13 and 14, 1972, to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions, and to make these employees whole for earnings lost
as a result of their wrongful terminations by payment to
each of them of a sum of money equal to that which each
would normally have earned, absent the unlawful discrim-
ination, from the date of his termination to the date of
Respondent's offer of reinstatement, less their net earnings,
if any, during said period. Backpay shall be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, and interest shall be added as prescribed in Isis Plum-
bing & Heating Co., 138 NLRB 716.
To facilitate and achieve these ends the remedial order
will include the customary recordkeepmg and notice post-
ing provisions.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I recommend the following:
ORDER12
Respondent, The Pearson Bros. Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees con-
cerning union activities, or threatening employees with re-
prisals for engaging in such activities.
(b) Laying off, discharging, or otherwise discriminating
against any employee for supporting International Molders
& Allied Workers Union, AFL-CIO; Chauffeurs, Team-
sters and Helpers, Local No. 15, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America; or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer the individuals named hereunder immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights and privileges,
and make them whole for their lost earnings in the manner
11 Brad's Machine Products, Inc, 191 NLRB No. 15 (1971).
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes.
THE PEARSON BROS . COMPANY 1187
set forth in the section of the Trial Examiner's Decision
entitled "Remedy." The individuals are:
James Bainbridge Harry Lambert
Joseph Bickett Harold Potter
Leonard Dunn Jerry Smith
Harry Fritch William Wessels
Marshall Geirnaeirt Edwin Jones
Bernard Strouse William Washburn
(b) Notify immediately the above- named individuals, 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 Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this recom-
mended Order.
(d) Post at its plant in Galva, Illinois, copies of the
attached notice marked "Appendix."13 Copies of the notice,
on forms provided by the Officer-in-Charge of Subregion
38, after being duly signed by an authorized representative
of the Respondent, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to see that the notices are not altered, defaced, or covered
by any other material.
(e) Notify the Officer-in-Charge, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith.
13 In the event the Board 's 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with harm or
punishment for engaging in union activities or coer-
cively question them about such activities.
WE WILL NOT lay off, discharge, or take other action
against our employees because of their activities in sup-
port of International Molders & Allied Workers Un-
ion, AFL-CIO; Chauffeurs, Teamsters and Helpers,
Local No. 15, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America; or any other union.
WE WILL NOT in any other manner interfere with the
right of our employees to engage in organizational ac-
tivity or collective bargaining, or to refrain from such
activity.
WE WILL offer to take back the individuals named
below to their old jobs and we will pay them for the
earnings they lost because we put them off their jobs.
The individuals are:
James Bainbridge Harry Lambert
Joseph Beckett Harold Potter
Leonard Dunn Jerry Smith
Harry Fitch William Wessels
Marshall Geirnaeirt Edwin Jones
Bernard Strouse William Washburn
Dated By
THE PEARSON BROS COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals, 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 Universal 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 direct-
ed to the Board's Office, Savings Center Towers, 411 Hamil-
ton Boulevard, Peoria, Illinois 61602, Telephone
309-673-9283.