The Rogers Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 17, 1977

228 N.L.R.B. 882 (N.L.R.B. 1977)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Rogers Manufacturing Company and Internation-
al Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, Local
1610, UAW and Michael Preston. Cases 8-CA-
9569,8-CA-9924, and 8-CA-9582
March 17, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 21, 1976, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Rogers
Manufacturing Company, Akron, Ohio, its officers,
agents, successors , and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge 's Decision , we note that he
inadvertently neglected to include in the affirmative action portion of the
Notice to Employees appropriate language providing that the Respondent
will make Preston whole for any loss of earnings he may have suffered as a
result of the discrimination against him . Accordingly, we have modified the
Administrative Law Judge 's notice to include such a provision.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
give evidence it has been decided that we, The Rogers
Manufacturing Company, have violated the National
Labor Relations Act and we have been ordered to
post this notice.
WE WILL NOT assist you in circulating a petition
to repudiate or decertify International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 1610,
UAW, nor will we solicit you to sign it.
WE WILL NOT lay off any employee for opposing
such a petition or for supporting the above-named
Union or any other labor organization.
WE WILL NOT warn you that layoff is the
penalty for opposing such a petition.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of your
rights guaranteed by the National Labor Rela-
tions Act.
WE WILL make Michael Preston whole for any
loss of earnings he may have suffered by reason of
the discrimination against him , with interest at the
rate of 6 percent per annum.
THE ROGERS
MANUFACTURING
COMPANY
DECISION
STATEMENT OF THE CASE
JOHN F . CoRBLEY, Administrative Law Judge: A hearing
was held in this case on August 31 and September 1, 1976,
pursuant to: a charge (Case 8-CA-9569) which was filed by
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, Local 1610,
UAW (hereinafter referred to as the Charging Union or the
Union), on October 29,1975, and served by registered mail
on Respondent on October 31, 1975; an amended charge
filed by the Charging Union on December 17, 1975, and
served on Respondent by registered mail on or about the
same date ; a charge filed by Michael Preston on October
31, 1975 (in Case 8-CA-9582), and served on Respondent
on or about November 4, 1975, by registered mail; a charge
filed by the Charging Union on March 12,1976 (in Case 8-
CA-9924), and served on Respondent by registered mail on
March 17, 1976; an order consolidating cases, consolidated
complaint, and notice of hearing issued on January 5, 1976,
by the Regional Director for Region 8 of the National
Labor Relations Board , which was duly served on Respon-
dent ; and an order consolidating cases, complaint, and
228 NLRB No. 104
ROGERS MFG. CO.
notice -of consolidated hearing which was issued by the
Regional Director for Region 8 on April 27, 1976, and was
thereafter duly served on Respondent. The complaint as
ultimately consolidated (and hereinafter referred to simply
as the complaint) alleges that: Respondent assisted in the
solicitation and circulation of an antiunion petition in an
effort to have the Charging Union decertified thereby
violating Section 8(a)(l) and (5) of the Act; Respondent
laid off Michael Preston on or about October 29, 1975,
because of his support for the Charging Union or failure to
support the antiunion petition , thus violating Section
8(a)(l) and (3) of the Act; and Respondent violated Section
8(aXl) of the Act by the act of its supervisors including
Charles Ross in informing Michael Preston that the latter
had been laid off because of his support for the Charging
Union and/or his failure to support the antiunion petition.
In its answers to the complaint , which answers were also
duly filed, Respondent has denied the commission of any
unfair labor practices.
For reasons which appear hereinafter, I find and con-
clude that Respondent has violated the Act essentially as
alleged in the complaint.
At the hearing, the General Counsel, the Charging
Union, and Respondent were represented by counsel. The
parties were given full opportunity to examine and cross-
examine witnesses, to introduce evidence, and to file briefs.
The parties waived the right to make closing statements.
Briefs have subsequently been received from the General
Counsel and from Respondent and have been considered.
Upon the entire record' in this case, including the briefs
and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now , and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Ohio, with its offices and
principal place of business located in Akron, Ohio, where it
is engaged in the manufacture of automobile parts and
other products. Annually, in the course and conduct of its
operations , Respondent receives, at its Akron, Ohio, plant,
goods valued in excess of $50,000 directly from points
located outside the State of Ohio.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union is now, and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
' Certain errors in the transcript of the record in these proceedings are
hereby noted and corrected.
2 The complaint so alleges but Respondent 's answer fails to deny this
allegation . Any allegation of the complaint not specifically denied shall be
deemed admitted as true and shall be so found by the Board, unless the
883
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Bargaining History
1. The appropriate unit
The following employees at Respondent's Akron, Ohio,
place of business constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees at the
Employer's Akron, Ohio, facilities, including all engrav-
ing and stamping division employees and progressive
pulley division employees, but excluding all office
clerical employees, and all professional employees,
guards and supervisors as defined in the Act .2
2. The Union's certification
On or about January 24, 1969, a majority of the
employees of Respondent in the above-described unit
designated and selected the Charging Union in a Board-
conducted secret ballot election as their representative for
the purposes of collective bargaining with Respondent and
on or about February 28, 1969, the Regional Director for
Region 8 of the National Labor Relations Board certified
the Union as the exclusive bargaining representative of the
employees in said unit.
3. The contract
Respondent and the Charging Union have engaged in
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment concerning the employees in the unit de-
scribed above and were signatories to a collective-bargain-
ing agreement , which was effective by its terms from
January 10, 1973, until January 10, 1976.
B. Respondent's Relevant Hierarchy
At all times material herein the following named indivi-
duals employed by Respondent were supervisors within the
meaning of Section 2(11) of the Act:3 F. A. Iaconetti,
executive vice president and chief executive officer; 4 James
Joyce, personnel director; Dick Rothermel, assistant gener-
al manager; Charles Ross, second shift superintendent;
Don Newbauer, paint line foreman; John Dunbar, paint
line foreman; John Landers, pressroom foreman; Harold
Wilson, pressroom foreman; and John Grim, assembly
foreman.
I will also find later in this Decision and contrary to
Respondent's contention that Patrick Greer was a supervi-
sor within the meaning of Section 2(11) of the Act at all
pertinent times herein.
answer makes certain explanations of the failure to deny which was not done
herein . See Sec. 102.20 of the Boards Rules and Regulations and Statements
of Procedure, Serves 8, as amended.
3 The parties so stipulated.
4 Mr. laconetti subsequently became the president of Respondent.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Background
As I have previously held, the Charging Union was
certified in 1969 and a contract was entered into in 1973.
This 4-year hiatus is explained by events described in the
Board's decision in The Rogers Manufacturing Company,
197 NLRB 1264 (1972).
The Board found in that decision that Respondent's
employees went on strike on June 9, 1969, about 3-1/2
months after the Charging Union 's certification . Thereafter
Respondent continued to operate using some strike replace-
ments . In May and June 1970 the Union filed unfair labor
practice charges against Respondent . On August 5, 1970, a
settlement agreement of these charges was executed in
which Respondent agreed to bargain upon request, agreed
further that it would not create obstacles to bargaining by
changing proposals as to which agreement had already
been reached, and that it would not grant superseniority to
strike replacements.
Thereafter, in 1971 , this settlement agreement was set
aside by the Regional Director based on new charges of
postsettlement unfair labor practices by Respondent which
were the subject of a fresh complaint at that time. On June
30, 1972, the Board issued its aforementioned decision in
which it upheld that complaint . More particularly it found
that Respondent had violated Section 8 (aX5) and (1) of the
Act when it suspended bargaining negotiations 5 which had
been in progress for only 2 months after the execution of
the settlement agreement and further violated these same
sections of the Act by insisting on superseniority for strike
replacements as a condition to reaching agreement on
reinstatement of strikers in what the Board found was an
unfair labor practice strike . The Board also held that
Respondent had violated Section 8(aXl) and (3) of the Act,
variously, by requiring strikers to return to work as new
employees , by withholding action for more than a month
on the application of strikers for reinstatement , by failing to
make an offer of reinstatement to two strikers, and by
making an improper offer of reinstatement to other
claimants.
Following the Board's decision, the 1973-76 contract was
entered into . The so-called open period (60-90 days prior to
the expiration of this contract) in which a new election
petition could be filed 6 began on or about October 11,
1975.7 Under the union-security provision of Respondent's
collective bargaining with the Charging Union this was also
an open period within which an employee could withdraw
from union membership.
On or about October 10, Respondent gave its employees
a letter with their paychecks in which it advised them of
their right to withdraw from the Union pursuant to the
terms of the collective-bargaining agreement and further
advising them that this could be accomplished by notifica-
tion to Respondent and the Union between October 11 and
November 11.
At or about that same time ("several weeks" prior to
November 10) employee Geraldine Stevens spoke with
laconetti and told him that she thought this would be a
S After a decertification election petition had been filed.
6 Leonard Wholesale Meats, Inc., 136 NLRB 1000 (1962); General Cable
Corporation, 139 NLRB 1123 (1962).
7 All dates appearing hereinafter occurred in 1975 unless otherwise noted.
good time to circulate a decertification petition. Iaconetti
agreed but warned Stevens that the situation was different
from the time Stevens had previously circulated a decertifi-
cation petition (apparently in the fall of 1970) because now
there was a collective-bargaining agreement and that
Stevens should discuss the matter with Joyce, the personnel
director.
Stevens subsequently spoke with Joyce before she began
circulating her petition. Joyce told Stevens that, in order for
such a petition to be timely, it had to be done between 60
and 90 days before the end of the contract. He also
suggested to her that she obtain donations from her fellow
employees to help support the effort.
The circulation of Stevens' petition began on October 27.
Stevens was helped in this effort by other employees.
Also on October 27, Respondent directed a second letter
to its employees, delivered with their paychecks, in which it
advised them that the Union would soon want to start
negotiations with Respondent. The letter further reminded
the employees of their right to withdraw from the Union
before November 11, and told them how this could be
accomplished. The letter, which was signed by laconetti,
added the statement that the Union did not pay employees
benefits but that it merely promised what it would "try to
force" Respondent to do. Wages and benefits, the letter
concluded, were paid by Respondent regardless whether
the employees had a union.
Also on or about October 27, parts employee George
Wright approached working Supervisor Patrick Greer with
the decertification petition and asked Greer to sign it. Since
Greer had already signed, Wright asked Greer if anyone
else wanted to do so. Greer then accompanied Wright over
to stockboy John Collins and Collins signed the petition in
the presence of Greer. Wright then took the petition over to
employees Joyce Conroy, Estelle Burkhart Simmons, and
Lorraine Zurshmidt and told them that whoever "wanted
out of the Union" should sign the petition but they refused.
Greer thereupon took the petition, held it up for Conroy
and said "Here." Conroy again refused to sign. Greer also
proffered the petition to employee Simmons to sign but she
likewise again refused.8
Respondent's assistance to the decertification effort is
alleged to be violative of Section 8(a)(1) and (5) of the Act. I
will take up this question along with the issue as to Greer's
supervisory status in my "Concluding Findings."
On October 28, Stevens took her petition into a plant
lunchroom. Gathered there were a number of employees on
their lunch break including employee Michael Preston.
Stevens attempted to solicit signatures to her petition but
instead she had a confrontation with Preston. Preston
attempted to debate with Stevens the merits of the
unionization of Respondent and the conversation specifi-
cally included mention of the Charging Union. Preston in a
loud voice which the other employees could easily hear told
Stevens that "any union was better than no union at all."
After the Stevens-Preston conversation none of the employ-
ees present would sign Stevens' petition. Indeed they
8 new findings are based on the credible and essentially corroborative
testimony of Conroy and Simmons in this regard as partially corroborated or
not dented by Greer. None of the other participants in the incident testified.
ROGERS MFG. CO. 885
laughed at her. With this Stevens marched out of the
lunchroom .9
Stevens told her foreman, Grim, an admitted supervisor,
about this incident the next day, October, 29, and Preston
was laid off that same day. His layoff is alleged to be a
violation of Section 8(a)(1) and (3) of the Act. Later alleged
comments by Preston's supervisors that the layoff was
occasioned by Preston's support for the Charging Union
and/or his failure to support the antiunion petition are
claimed to be violations of Section 8(a)(1). I will treat with
both these matters in detail in my "Concluding Findings."
On October 31, Preston filed his charge herein against
Respondent which was served on Respondent on or about
November 4. Preston was notified by Joyce on November 6
that he would be reinstated on November 10. By payroll
change notice of November 7 he was given a raise in pay of
25 cents per hour. He resumed work on November 10.
Also on November 10 Stevens filed a decertification
election petition in Case 8-RD-692 with Region 8 of the
National Labor Relations Board. It does not appear that
any action has been taken on this petition .10
Subsequent to January 10, 1976,11 according to the briefs
of both the General Counsel and Respondent, Respondent
and the Union have engaged in bargaining for a new
contract but there is no indication that one has been
entered into.
Concluding Findings
1. The layoff of Preston
Preston was employed on September 9. He was laid off,
as I have held, on October 29, the same day as Stevens had
informed her foreman, Grim, of her aforedescribed con-
frontation with Preston in the lunchroom on the previous
day.
On the evening of October 29 Shift Superintendent Ross
called Preston into his office and told Preston that he was
being laid off due to a production cutback. Preston stated
that he did not understand since he had gotten a raise (after
30 days) and had been complimented on his work. Ross
told Preston that Preston had done a good job 12 but Ross
said that he believed that Preston was being laid off because
of the lunchroom incident on the day before and that
Preston should have kept his mouth shut.13
Preston then proceeded back to the restroom preparatory
to leaving the plant where he ran into his foreman, Watson.
Watson asked Preston what had happened and Preston said
that he had been laid off. Watson said he had heard rumors
9 The findings as to this incident are based on a composite of the credible
and essentially corroborative testimony of Stevens and Preston in this
regard
10 It has presumably been dismissed in the light of the 8 (aX5) allegations
of the complaint herein . See, e .g., Pullman Industries, 159 NLRB 580 (1966).
1 i The date of the expiration of the 1973-76 contract.
12 Ross so admitted.
13 These findings are based on the credible testimony of Preston in this
regard . Preston , while rambling in his testimony, appeared to me to testify in
an honest manner to the best of his ability . I discredit the contrary version of
Ross with the exception of Ross' statement that Ross assured Preston that he
had been doing a good fob . Ross I felt was an inhibited witness who did not
testify as convincingly as Preston . I also noted that Ross looked down when
denying that he told Preston that his layoff had to do with the Stevens'
lunchroom affair.
that Preston was going to be laid off because of the Stevens
incident. Watson also told Preston that this was a shame
because Preston was a good worker but that Preston should
have kept his mouth shut-14
Preston also saw Landers, another pressroom foreman, in
the men's room . In discussing Preston's layoff with Preston,
Landers stated that this was not the first time "they"
(Respondent) had attempted such things, that "they had
done it before and that's the way it had been taken care of."
Landers then suggested that Preston go to the National
Labor Relations Board which, as noted, he did.15
Respondent defends that Preston was laid off by selec-
tion of Rothermel after laconetti had directed Rothermel to
reduce indirect help. Indirect help was defined by Iaconetti
as anyone not working on equipment to produce a product.
Preston was a setup man at the time of his layoff.
I reject this defense.
According to Iaconetti, the amount of indirect help is a
constant problem with Respondent-so much so that he
has a short meeting with management on the subject every
day. He further testified that he seeks to limit indirect labor
to an average of 22.1 percent of the total labor force. While
this may well be an admirable management goal, it does not
satisfactorily explain why Preston was laid off even in the
absence of other evidence on this issue . For if the problem
was constant there should have been layoffs to meet it on a
regular basis prior to the layoff of Preston. Yet there had
been none since the early part of 1975. Further, as of the
time of hearing, the percentage of indirect labor had
become 33-1/3 percent - more than 10 percent beyond
laconetti's goal. Finally, if there had indeed been a need to
lay off a setup man at the time Preston was let go,
commonsense would dictate that the least efficient setup
man would be separated first (provided such a decision
would not violate any contract seniority requirements).
Here, however, though Preston was admittedly a good
worker, he was laid off ahead of Wilborn who was not only
hired after Preston but who was actually terminated as
unsatisfactory some 3 days following Preston's layoff.16 In
these circumstances I am convinced that Respondent's
claimed desire to reduce indirect labor at the time does not
provide the true reason for Preston's layoff.
I rather conclude that Preston was laid off because of his
resistance to Stevens ' antiunion petition just as he was told
by Ross 17 and as suggested to him, in effect, by Foremen
Watson18 and Landers. I further conclude that by laying
him off for this reason where his resistance was based on his
support for the Charging Union, Respondent violated
Section 8(a)(1) and (3) of the Act.
14 Watson credibly so admitted.
is These findings are based on the credible and undisputed testimony of
Preston in this regard.
is Nor am I persuaded by Respondent 's contention that it kept on
Wilborn to give him a chance to improve. For, if the matter of indirect labor
was so pressing at the time , Wilborn , having never proved himself, was the
logical choice for separation before Preston who had proved himself.
17 See Chef Nathan Sez Eat Here, Inc., 181 NLRB 159 (1970), enfd. 434
F.2d 126 (C.A. 3).
18 Watson testified that what he told Preston about Preston 's layoff was
based on a rumor he heard from some women in the shop. Ross, however,
endorsed such rumor as gospel when he concluded his remarks to Preston on
the subject with the admonition that Preston should have kept his mouth
shut.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I likewise conclude that the statements of Watson and
Landers and particularly those of Ross to Preston that he
was being laid off for this reason violated Section 8(a)(1) of
the Act because such statements could not help but chill
any desire on the part of Preston to support the Charging
Union at any time when Preston might be recalled (as he
eventually was) after being laid off.
2. Greer's efforts to have employees sign the
antiunion petition
There is no question that Greer assisted parts employee
Wright to obtain the signature of stockboy Collins on the
petition. Nor is there any question that Greer insisted,
unsuccessfully, that employees Conroy, Simmons, and
Zurshmidt also sign the petition.
Respondent defends in this regard that Greer was not a
supervisor within the meaning of Section 2(11) of the Act
but was rather a rank-and-file employee engaged in a
protected concerted activity. In support of this contention
Respondent presented considerable testimony that Greer
cannot be a supervisor because he does not hire, fire,
promote, etc., employees who work with him. I disagree.
It is well settled that Section 2(11) of the Act (the
definition of "supervisor") is to be construed in the
disjunctive just as it reads-and that the substantial
authority to take any of the actions enumerated in behalf of
an employer renders an individual a supervisor.19 I con-
clude that Greer is a supervisor on the ground that he
responsibly directed his crew of some nine employees
working on the paint line in a manner requiring the exercise
of independent judgment at the time the incident took
place.
Greer, a former setup man, was promoted to "working
supervisor" effective September 22, 1975, and given a 75-
cent increase in his hourly pay (to $5) almost $2 higher than
any employees named in the record who were working
under him. He was thereafter assigned to the paint line on
different shifts replacing admitted supervisors, Foremen
Newbauer and Dunbar. He kept this position until at least
December 1975. While his authority over the employees
under him was somewhat less than Newbauer's or Dunbar's
in some respects it was the same in respect to his essential
responsibility. Thus he was told when he was promoted to
working supervisor in September 1975 that his job was to
"make sure the paint lines kept running." In October he
was given a gray jacket to wear, which, according to
laconetti, was otherwise worn only by salaried supervisors
or office personnel.
In managing his crew of some nine employees Greer
followed a production schedule. Since this changed daily he
had to assign these employees their jobs on a daily basis. He
was also responsible for the employees' work time. Thus
when a paint line broke down he would assign them to work
on another line in his department20 or contact Ross or
Rothermel to obtain other work for them or send them all
19 Elliott - Williams Co , Inc., 143 NLRB 811 (I%3), enfd. as modified 345
F.2d 460 (C.A 7,1%5); Ohio Power Company v. N. L RB, 176 F.2d 385, 387
(C.A.6,1949).
20 Rothermel and Ross so admitted.
21 In view of all my findings , but particularly this testimony , I attach no
weight to Greer 's later inconsistent testimony that he was not given the
authority to exercise Independent judgment.
on break. He was also told that if he had any problems he
was to contact these same two officials. However, the
determination of what was a problem was left largely to him
since, as he testified, "he handled it all himself' and that no
one gave him specific instructions what to do.21 He also
asked employees to work overtime when this was necessary.
In overseeing the normal activities of employees working
on his crew Greer would check each half hour during the
shift to see if pulleys (Respondent's product) were painted
correctly and packed properly by the crew. At the conclu-
sion of each shift he checked and signed each employee's
production record and timecards. He also gave employees
their paychecks.
When employee Conroy began work in September she
was told that Greer was her foreman. Simmons was told the
same thing in October. Both received their instructions
from Greer when he was working supervisor on the paint
line during their shift. Greer also trained admitted Supervi-
sor Dunbar.
Based on all of the foregoing I conclude that Greer was a
supervisor within the meaning of Section 2(11) of the Act at
all pertinent times herein.22
Respondent argues that the General Counsel in enforcing
the complaint is seeking to create an avalanche out of "2
snowflakes"-Greer's participation in the circulation of the
petition and Preston's layoff. I disagree.
In my judgment, in the full context of what occurred, if
there has been an avalanche, it was started by Respondent
and it was started by it with boulders and not snowflakes.
Thus, on October 27, the day the petition began circulating,
Respondent sent a letter to its employees with their
paychecks in which Respondent denigrated the Union and
advised employees of their right to withdraw from it. On
that same day Respondent's Supervisor Greer solicited four
employees to sign it. The next day, October 28, Preston
opposed the petition in the presence of other employees in a
lunchroom, an act for which he was laid off the following
day, October 29. The rumor in respect to Preston's layoff
and the reason for it circulated in the plant even prior to the
layoff itself, as Watson admitted. Ross had also heard of the
incident on the day it occurred or on the next day.
From the foregoing it is manifest that Respondent
suggested that the employees reject the Union, it assisted
the circulation of the decertification petition and it laid off
an employee for opposing that petition in the presence of
other employees in the lunchroom. All these events along
with the rumor of Preston's impending layoff and the
reason for it occurred during the first 3 days that the
petition was circulated. Some 85 percent of the 133
employees who signed the petition affixed their signatures
during those same 3 days. At the time they signed the
petition Respondent's message to them was loud and
zx Custom Bronze & Aluminum Corporation, 197 NLRB 397 (1972);
Birnungham Fabricating Company, 140 NLRB 640 (1963); Mini Steel
Fabricators, Inc., 197 NLRB 303 (1972); The Bama Company, 145 NLRB
1141, 1142-43 ( 1964), enfd . 353 F.2d 320 (C.A. 5,1965).
ROGERS MFG. CO.
clear-that is, that Respondent wanted them to sign it and
that they could be laid off for opposing it 23
In view of the above and the history of Respondent's
earlier unfair labor practices,24 I conclude that it assisted
the circulation of the decertification petition, that this had
the foreseeable 'elect of obstructing the bargaining process,
and that Respondent thereby violated Section 8(a)(1) and
(5) of the Act.25
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving unlawful discrimination in
violation of Section 8(a)(1) and (3) of the Act, unlawful
assistance of an effort to decertify the Union in violation of
Section 8(axl) and (5) of the Act, and unlawful restraint
and coercion in violation of Section 8(a)(1) of the Act. This
will require Respondent to cease and desist from the unfair
labor practices found and to post a notice to that effect
which will also state the affirmative action Respondent will
be required to take to remedy its unlawful layoff of Preston.
Thus, Respondent will be required to make Preston whole
for any loss of earnings he may have suffered as the result of
the discrimination against him by payment to him a sum of
money equal to that he would have earned from the date of
his layoff until the date of his recall less net earnings, if any,
during such period to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
with 6-percent interest thereon as required by Isis Plumbing
& Heating Co., 138 NLRB 716 (1962). Inasmuch as Preston
was recalled, it will not, of course, be recommended that he
now be offered recall by Respondent.
It will, however, be further recommended, in view of the
nature of the unfair labor practices in which Respondent
has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d
532, 536 (C.A. 4, 1941)), that Respondent be ordered to
23 A message well reinforced by the comments of Respondent's Supervi-
sors Ross, Landers, and Watson to Preston on the day of Preston 's layoff:
24 See, e .g., Paramount Cap Manufacturing Co., 119 NLRB 785, 787
( 1957), enfd . 260 F .2d 109 (C.A. 8, 1968).
25 See El So! Mexican Foods, 200 NLRB 804,809 ( 1972), and cases cited
therein.
In making my 8(aX5) finding, I conclude that the Union was, at all times
pertinent hereto , the exclusive majority representative of the employees in
the collective-bargaining unit . These events occurred while the collective-
bargaining agreement was in effect and consequently while a conclusive
presumption of majority status existed in favor of the Union. Dimarc
Broadcasting Corp., 204 NLRB 378 (1973). While a petition could be filed
raising an issue as to such status during the open period of the contract (on or
about October I I to November 11) to be resolved by an election after such
contract expired, Respondent's substantial assistance in the circulation of the
887
cease and desist from infringing in any other manner on the
rights guaranteed its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, Local
1610, UAW, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees at the
Employer's Akron, Ohio, facilities including all engraving
and stamping division employees and progressive pulley
division employees, but excluding all office clerical employ-
ees and all professional employees, guards and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein the above-named labor
organization has been the exclusive representative of all the
employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By assisting the circulation of a petition leading to
the decertification of the above-named Union in soliciting
employees to sign said petition and laying an employee off
for opposing said petition Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act.
6. By laying off Michael Preston for opposing said
petition and supporting the above-named Union, Respon-
dent has violated Section 8(a)(l) and (3) of the Act.
7. By advising Michael Preston that he was being laid
off for opposing said petition Respondent has violated
Section 8(a)(l) 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.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
petition herein rendered the petition 's claimed employee support nugatory
and provided no basis for Respondent to question that majority status at that
time. See Worthington Corporation, 119 NLRB 306 (1957); cf. Daisy's
Originals Inc. of Miami, 187 NLRB 251, 255-256 (1970), enfd. as modified
468 F.2d 493, 502 (C.A. 5, 1972); Hoyt Motor Co., Inc., 136 NLRB 1042
(1962). Even if the presumption of the Union 's majority were rebuttable
during such open period there is no basis in this record to question that status
except for the fact of the unlawfully assisted petition and the unsupported
claims in Respondent 's letters to its employees on October 10 and October 27
that some unspecified number of employees had said they desired to
withdraw from the Union.
Nor can Respondent be absolved from its support of the petition by its
subsequent reprimand of Stevens for circulating it in part on company time.
For this reprimand was not given until November 7-some 3 days after the
last signatures were solicited.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 26
Respondent, The Rogers Manufacturing Company, Ak-
ron, Ohio, its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Assisting employees to repudiate or decertify the
Union as their exclusive bargaining representative in order
to avoid its obligation to recognize and bargain with the
Union.
(b) Discouraging membership in, activities on behalf of,
or sympathies toward International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, Local 1610, UAW, or any other labor organiza-
tion , by discriminating in regard to hire or tenure of
employment or in any other manner in regard to any term
or condition of employment of any of Respondent's
employees in order to discourage union membership,
activities , or sympathies.
(c) Advising employees they are being laid off for
opposing a petition to decertify the above-named Union or
for supporting that Union or in any other manner interfer-
ing with , coercing, or restraining employees in the exercise
of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
26 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.
(a) Make whole Michael Preston for any loss of pay he
may have suffered in the manner set forth in the section of
the Administrative Law Judge's Decision entitled "The
Remedy."
(b) 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 other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Akron, Ohio, copies of the attached
notice marked "Appendix." 27 Copies of said notice, on
forms provided by the Regional Director for Region 7, after
being duly signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
27 In the event that 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."