The Rupp Forge Co.

National Labor Relations Board - Board Decisions

Jan 24, 1973

201 N.L.R.B. 393 (N.L.R.B. 1973)

THE RUPP FORGE COMPANY 393
The Rupp Forge Company and United Steel Workers
of America, AFL-CIO. Cases 8-CA-6497 and
8-RC-8236
January 24, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On January 31, 1972, Administrative Law Judge'
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
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 the light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Rupp Forge
Company, Cleveland, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's recommended
Order.
IT IS FURTHER ORDERED that the election held in
Case 8-RC-8236 on June 25, 1971, be, and it hereby
is, set aside, and that the case be remanded to the
Regional Director for Region 8 for the purpose of
conducting a new election in the appropriate unit at
such time as he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The title of "trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding, under
Sections 10(b) and 9 of the National Labor Relations Act,
as amended , was tried pursuant to due notice on October 6
and 12, 1971, at Cleveland, Ohio.
The charge and amended charge (Case 8-CA--6497) were
filed on July 1, and August 11, 1971, respectively. The
complaint in this matter was issued on August 17, 1971.
The petition in Case 8-RC-8236 was filed on May 21,
1971. Thereafter, pursuant to a Stipulation for Certification
Upon Consent Election executed by the parties, and
approved by the Regional Director for Region 8 of the
National Labor Relations Board on June 4 , 1971, an
election by secret ballot was conducted in Case 8-RC-8236
on June 25, 1971, under the direction and supervision of
said Regional Director . The tally of ballots, furnished the
parties , reveals that a majority of the eligible voters cast
their ballots against the Petitioner . There were no chal-
lenged ballots.
On July 1, 1971, the Petitioner filed timely objections to
conduct affecting the results of the election . The Regional
Director caused an investigation of the objections to be
made and thereafter on August 17, 1971, issued and served
on the parties his Report on Objections. In his report the
Regional Director recommended to the Board that the
Petitioner's Objections 1, 2, 3, 4, 9, 10, and 11 be set for
hearing and that said hearing be consolidated with the
hearing set in Case 8-CA-6497. Prior thereto, on August 6,
1971, the Petitioner had withdrawn Objections 5, 6, 7, and
8.
No exceptions having been timely filed to the Regional
Director's report, the Board ( 1) adopted the Regional
Director 's recommendations contained in said report, (2)
ordered that a hearing be held for the purpose of receiving
evidence to resolve the issues raised by the Petitioner's
Objections 1, 2, 3, 4, 9, 10, and 11, as designated in the
Regional Director's report, (3) ordered that such hearing
might be consolidated with any hearing in Case
8-CA-66497 and held before a Trial Examiner to be
designated by the Chief Trial Examiner, and (4) ordered in
effect that the Trial Examiner, designated for the purpose
of conducting such hearing , prepare and cause to be served
on the parties a report containing resolutions of credibility
of witnesses, findings of fact, and recommendations as to
the disposition of said objections . The Board further
adverted the parties to the Board's Rules and Regulations
with respect to the filing of exceptions to such report. The
Board further remanded the matter to the Regional
Director (Region 8) for the purpose of arranging such
hearing and authorized the Regional Director to issue
notice thereof . Thereafter, the Regional Director for
Region 8 duly consolidated Cases 8-CA-6497 and
8-RC-8236 for purpose of hearing, ruling, and decision by
a Trial Examiner.
The unfair labor practice issues are essentially whether
Respondent has (1) violated Section 8(a)(1) of the Act by
unlawful interrogation of employees as to their union
activities or desires , by promises of benefits to dissuade
employee support of the Union, by threats of reprisal to
dissuade employee support of the Union, by ordering
employees not to support the Union , by reduction of hours
of employment of an employee to dissuade his support of
the Union, and by discriminating in the tenure of
employment of employees to dissuade their support of the
Union, and (2) violated Section 8(a)(3) of the Act by
reduction of hours of one employee and by the discrimina-
tory termination of certain other employees.
201 NLRB No. 53
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The objections concern essentially the same issues as set
forth in the unfair labor practice complaint. Additionally,
the objections concern one issue of alleged misrepresenta-
tion in campaign literature distributed by the employer.
All parties were afforded full opportunity to participate
in the proceeding, and the General Counsel, Charging
Party, and Respondent all filed briefs which have been
considered.
Upon the entire record in the case and from my
observations of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
As established by the pleadings, it is concluded and
found that the Rupp Forge Company, the 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 principal offices and
place of business located in Cleveland, Ohio, where it is
engaged in the manufacture and sale of steel forgings.
Annually, in the course and conduct of its business,
Respondent ships finished products valued in excess of
$50,000 to points directly outside the State of Ohio.
As conceded by Respondent (Employer) and based on
the foregoing, it is concluded and found that the Respon-
dent is now, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
B. Introduction 2
The Respondent employs some 38 to 40 employees in its
operations.
Employees Austin, Byrge, and Gray contacted the Union
in late April or early May 1971. At such time, employees
Austin, Byrge, and Gray signed union cards and secured
other cards for distribution to other employees. Thereafter,
in late April and early May 1971, Austin, Byrge, and Gray
distributed union cards and literature to fellow employees,
talked of benefits of unionization to fellow employees, and
secured several signed union cards from fellow employees.
Gray turned the signed union cards over to the Union.
During late April and early May 1971, employees
Huggins and Robinson also joined in union organizational
efforts. Both signed union cards and talked to other
employees about the Union.
The Union filed a representation petition in Case
8-RC-8236 on May 21, 1971. On the same day the Union
made written demand for recognition from the Respondent
as exclusive bargaining representative of Respondent's
employees? Thereafter on June 4, 1971, the Union and the
Respondent entered into a stipulated consent election
agreement in Case 8-RC-8236. Following this, on June 25,
1971, an NLRB representation election was held for
Respondent's employees in the following described bar-
gaining unit.
All production and maintenance employees em-
ployed by the Rupp Forge Company at its facilities
located at 10312 Meech Avenue, Cleveland, Ohio,
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
As established by the pleadings, it is found and
concluded that United Steelworkers of America , AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE
OBJECTIONS TO THE ELECTION
A. Preliminary Issues
Supervisor status I
At all times material herein, the following named
individuals have occupied the positions set opposite their
respective names and have been, and are now, agents of
the Respondent acting on its behalf, and are supervisors
within the meaning of Section 2(11) of the Act.
Ted Dolega-President
Boris Stephanoff-Superintendent
i The facts are based on the pleadings and admissions therein The
Respondent admits the supervisory status of the named individuals but
denies in effect that the named individuals are "agents ." As "supervisors"
the named individuals are "agents " within the meaning of the Act for the
conduct found to have been engaged in by them in this case
s The facts are based on a composite of the credited aspects of the
testimony of Austin , Byrge , Gray, Robinson, Huggins, and Ted Dolega,
C. Discriminatory Discharge of Huggins
Alleged Interrogation4
Lou Huggins worked as an employee for the Respondent
for about II years. Around the last of April 1971, Huggins
received a union authorization card from employee Lee
Gray, signed said card, and returned the same to Gray.
Huggins, thereafter, distributed three or four union cards
to other employees and talked to about 10 employees
about the benefits of unionization.
As of May 17, 1971, it may be stated that Huggins owned
a sledge hammer head and handle. The handle was of a
different color than the sledge hammer handles owned by
Respondent. The sledge hammer head however would
appear indistinguishable from the sledge hammer heads
owned by Respondent. On May 17, 1971, Huggins carried
his sledge hammer handle and head to work, and used
company tools at breaktime to assemble the handle and
head into a sledge hammer.
Respondent's policy is to require employees to secure
exhibits in the record, and the logical consistency of all the facts
3 The petition in Case 8-RC-8236 referred to the fact that demand for
recognition had been made and that there had been no reply thereto
Testimony of witnesses referred to a union letter of demand.
4 The facts are based on a composite of the credited aspects of the
testimony of Ted Dolega . Gray . Huggins, and Robinson Testimony of
witnesses at variance with the facts found is discredited
THE RUPP FORGE COMPANY 395
permission before bringing personal tools onto the proper-
ty and working on the same.5
On May 17, 1971, Ted Dolega, Respondent's president,
saw employee Gray with Huggins' assembled sledge
hammer. Dolega approached Gray at the water cooler and
asked where he had obtained the sledge hammer. Gray told
Dolega that the sledge hammer belonged to Huggins.
Around this time Huggins came to the water cooler. Ted
Dolega and Huggins then commenced to have a question-
and-answer exchange concerning the ownership of the
sledge hammer.
The central thrust of what occurred in the events in this
case reveals the parties to be in general agreement as to
what occurred. Apparently, therefore, much of the eviden-
ce was presented by both parties in a generalized and
fragmented fashion. It is noted also that both Dolega and
Huggins have hearing problems. The facts reveal that Ted
Dolega was suspicious that the sledge hammer head
actually was one of Respondent's and that his questions as
to ownership of the sledge hammer handle conveyed such
suspicion to Huggins. The question-and-answer exchange
became somewhat heated .6 Dolega wanted to know who
owned the sledge hammer, where it came from, and what
company tools were used in assembling the sledge hammer.
Huggins told Dolega that he owned the hammer, that the
handle was different from Respondent's handles, and told
him which company tools he had used in assembling the
hammer on breaktime.
The question-and-answer exchange was broken when
Huggins proceeded to change his clothes in the locker
room. When Huggins was leaving the locker room, Ted
Dolega resumed his questioning of Huggins about the
sledge hammer handle and head. Dolega asked Huggins if
he had permission to bring the sledge hammer handle and
head onto company property. Huggins told Dolega that he
was accusing him of stealing , that he (Dolega) was a liar,
that Dolega was a "son of a bitch," and that Dolega should
act like a man and not keep on asking questions about the
sledge hammer handle and head. The heated exchange was
ended with Huggins' leaving work for the day.7
The next encounter between Dolega and Huggins
occurred on May 18, 1971. Unlike the previous encounter,
the two engaged in a quiet, calm discussion.
Thus, on the morning of May 18, 1971, President Ted
Dolega approached Huggins and asked to speak to him in
the locker room. In the meantime Dolega had spoken to his
son, Ronald, and Foreman Stephanoff. Dolega had
ascertained from Ronald Dolega and Stephanoff the fact
5 Huggins testified to his and others ' having brought tools onto company
property on past occasions without permission There was no evidence to
reveal that supervisors, however , knew or were aware of such occasions. I
credit Dolega's testimony as to company policy in such regard
6 i credit both Dolega and Huggins in each testifying to the fact that the
other was angry I discredit Dolega's testimony to the effect that he was not
angry I also discredit Huggin 's testimony to the effect that he was not
angry. The logical consistency of the facts support these findings
7 Huggins and Gray testified to the effect that Huggins did not call
Dolega a "son of a bitch " I found Dolega 's testimony and demeanor while
testifying to this point very believable and so credit the facts . I was not
persuaded by Huggins and Gray as to their reliability on this point
8 Huggins testified to the effect that Dolega questioned him about his
union activity Dolega denied such interrogation This issue presents a close
credibility determination. Neither witness , by demeanor or overall testimo-
ny, presented himself as a thoroughly believable witness Considering the
that Huggins had not secured permission to bring the
hammer handle and head onto company property. Presi-
dent Ted Dolega asked Huggins if he had received
permission to bring the hammer handle and head onto the
property. Huggins told Dolega that he had not secured
such permission . Dolega told Huggins that he had not liked
the way that Huggins had spoken to him the day before,
that he could go home . Huggins inquired to Dolega as to
whether he was fired or laid off. Dolega told Huggins that
he was giving him a disciplinary suspension . Huggins asked
for his paycheck. Dolega told Huggins that he would not
get it that day .8
On May 20, 1971, Huggins filed a charge with the Ohio
Civil Rights Commission concerning his disciplinary
layoff. Huggins executed an affidavit at the time setting
forth that he believed that he had been discriminated
against on account of his race.
On May 21, 1971, the Union filed a representation
petition in Case 8-RC-8236 concerning the right to
represent Respondent 's employees . On the same date, the
Union made a written request for recognition as bargain-
ing representative of Respondent 's employees .9
On May 21 , 1971, Huggins went to Respondent 's plant
to pick up his check. Ted Dolega told Huggins that he had
intended to call him back to work on Monday (May 24)
but that he had received a letter about him from a "civil
rights organization."
Sometime during the day of May 24, 1971, Respondent
received the Union's written demand for recognition.io
President Ted Dolega decided to recall Huggins to work
and telephoned his home four or five times in unsuccessful
attempts to speak to him. Around 5:30 p.m., Dolega was
able to reach Mrs. Huggins by telephone and to leave a
message for Huggins to report to work on May 25, 1971, at
regular starting time.
On May 25, 1971, Huggins telephoned Vice President
and Supervisor Ron Dolega about 15 to 20 minutes after
starting time . Huggins told Dolega that his stomach and
back bothered him and that he would report to work on
Wednesday. Ronald Dolega told Huggins that this was
"okay." i i
Sometime during the day of May 25, 1971, President Ted
Dolega and Ron Dolega discussed the fact that Huggins
had called in about not coming to work on May 25 and as
to Ron Dolega's telling Huggins that this was okay . At this
point, Ted Dolega decided to terminate Huggins and to
characterize the termination as a "Quit." 12 Ron Dolega
placed a note in Huggins' file to the effect that Huggins
logical consistency of all of the facts. I find Ted Dolega 's denial of the
interrogation to be more believable and so credit the facts.
9 The petition in Case 8-RC-8236 refers to such a request and to the fact
that there was "no reply." Testimony reveals that Respondent received a
union letter about "organizing" Respondent's employees Accordingly, I
find that a written request was made.
10 This fact is based on all the facts and a fair inference therefrom
11 The facts are based on Huggins' credited testimony. I discredit
Ronald Dolega 's testimony in which he denied that Huggins referred to his
stomach and back bothering him, and in which Dolega stated that Huggins
told him that he had driven all night and was too tired. Suffice it to say, the
resolution of credibility herein is a close one . I found Huggins' testimony on
this point to appear to have more of a ring of truth than I did Ronald
Dolega 's testimony
12 Ron Dolega credibly testified to the effect that he did not recommend
that Huggins be terminated and that the decision was that of Ted Dolega.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had called in and stated that he was too tired to come to
work. On this date a letter was sent to Huggins telling him
that he was terminated.
On May 26, 1971, Huggins reported to work and was
informed that there was no work for him and that a letter
was in the mail explaining the situation. Huggins received
this letter on May 27, 1971.
The Respondent marked on Huggins' employment
record the notation "quit."
In addition to the foregoing, it may be noted that
President Ted Dolega testified to various reasons for the
termination of Huggins. Thus, Huggins allegedly "quit,"
was discharged for "leaving the property with similar
equipment," and because he did not report for work when
called. It suffices to say that Dolega's testimony as to the
reason was shifting, at variance with logical consistency of
the facts, and did not have the ring of truth. I am
persuaded that the reasons he gave are pretextuous. I
discredit President Ted Dolega's testimony as to his
reasons for Huggins' termination.
Considering the foregoing, I conclude and find that the
facts do not reveal that Respondent, by President Ted
Dolega, on May 18, 1971, interrogated an employee about
his union activities or desires. It will be recommended that
such complaint allegation be dismissed.
Considering the foregoing and all of the facts, I am
persuaded and conclude and find that the preponderance
of the facts reveals that Respondent discriminatorily
terminated Huggins on May 25, 1971, because of belief of
Huggins' union activities. The facts clearly reveal that
Huggins was a strong and active union adherent. Consider-
ing the size of Respondent's work force (38 to 40
employees), the timing of the Union's demand for
recognition, and the pretextuous reason of "quit" assigned
for the termination of Huggins, the facts persuade that
Respondent knew or believed it knew of Huggins' union
activities and terminated him for such belief of union
activities but on the pretext that he had quit. Such conduct
is violative of Section 8(a)(3) and (1) of the Act. It is so
concluded and found.
D. The Discharge of Lee Gray t3
Alleged Interrogation
Lee Gray was terminated from employment by the
Respondent on May 21, 1971. Prior to his termination,
Gray had worked for the Respondent for 2 1/2 years. At
the time of his termination, Gray was working as a trimmer
on the number 5 forge.
Gray was one of the three employees who had initially
sought out the Union in late April or early May 1971. It is
clear that Gray was one of the most active union
adherents. Gray participated in the union campaign
otherwise by distributing cards, talking to fellow employees
13 The facts are based on a composite of the credited aspects of the
testimony of all witnesses, including Gray, Ronald Dolega, Ted Dolega,
Boris Stephanoff, and others, and exhibits in the record.
1+ Gray testified to the effect that he had telephoned Ronald Dolega on
May 20, 1971, informed Dolega that he was sick and couldn 't work that
day, and that Dolega had said this was "okay " Ronald Dolega denied that
this telephone conversation took place. Considering the logical consistency
about the Union, and securing signed union cards and
turning them in to the Union.
On May 19, 1971, Gray was working on a job at forge
number 5 as a trimmer. The job required the use of two
presses. The Respondent's mode of operation scheduled
four men for such job. Gray complained to Foreman
Stephanoff about the need of an additional man and the
need for more money for the work. Gray indicated that he
was not going to work unless another man was assigned for
the unit. Stephanoff told Gray in effect that he was not
going to assign another man to the unit, that he would
either have to do the work or go home. President Ted
Dolega was present and joined in with Stephanoff in
instructing Gray that he would have to do the work as
assigned or go home.
About an hour later, another employee on the number 5
forge unit, Milton Murray, told Foreman Stephanoff that it
was too hot and that he was going home. In accordance
with practice, Foreman Stephanoff shut the number 5
Forge down and sent the crew (including Gray) home.
Gray did not work on May 20, 1971.
On May 21, 1971, Gray reported to work and noticed
that his timecard was not in the rack. Gray went into an
office and spoke to Vice President Ronald Dolega. Gray
asked where his timecard was. Dolega told Gray that he
had not worked the day before and that he could take
another day off. Dolega asked Gray why he hadn't called
in and whether he had a telephone. Gray told Dolega in
effect that it did not make any difference whether he had a
telephone, that it would not have done him any good to
have called in. Gray asked Dolega to give him his weekly
paycheck so he would not have to come back for it. Dolega
indicated that he would not do this. Gray then started to
leave and told Dolega that there would be no hard feelings,
that everything would be taken care of. 14
Gray returned in the afternoon to get his paycheck. On
this occasion he saw President Ted Dolega. What occurred
is revealed by the following credited excerpts from Gray's
testimony.
Q. Did you have any conversation with Ted
Dolega?
A. He said to me, "You're terminated." And I said,
"You are prejudiced, white guys take a week at a time
and nothing happens." So he said-that is all he had to
say. And I said if I am fired, give me my check, and he
said he would give it to me after he takes Blue Cross
and Group Insurance out on me.
Q. Did he give you a reason for your termination at
that point?
A. No, he didn't. He couldn't give me no reasons.
MR. RUGGIE: Objection. The question was, did he
give you any reason.
THE WITNESS: He could not give a reason.
TRIAL EXAMINER: The part other than which was
of all the facts , and Gray's testimony of his conversation with Ted Dolega
on May 21 , 1971, 1 am persuaded that Ronald Dolega 's testimony on this
point should be credited over Gray's I find it hard to believe that if Gray
had secured an "okay" on May 20 . 1971. his discussion with Ted Dolega on
May 21, 1971. would have been as testified to by him. According to Gray's
testimony , he accused Ted Dolega on May 21. 1971, of racial discrimination
because white employees took longer absences
THE RUPP FORGE COMPANY
said he gave no reason is stricken and we will leave the
answer to the extent that he gave no reason.
In addition to the foregoing facts, the following is noted.
The Respondent presented into evidence two "notes" from
the employment files of Gray. The first note was prepared
by Ronald Dolega and concerned the absence of a
telephone call by Gray on May 20, 1971, and Gray's
reporting to work on May 21, 1971. There was no specific
evidence as to when this note was prepared. The overall
facts and testimony of witnesses Ronald Dolega, Ted
Dolega, and Stephanoff would reveal that the referred-to
notes were prepared at a time when it was known that
Gray was being terminated. Thus, Ronald Dolega testified
to the effect that the "note" was prepared because of
unemployment claims. The second note was prepared by
Stephanoff. From the overall facts, I conclude and find
that this note was prepared at the time it had been decided
to terminate Gray on May 21, 1971.15 Stephanoff's note,
prepared by him because instructed to do so by President
Ted Dolega, indicated that Gray had insisted on a "layoff"
on May 19, 1971.16
Ted Dolega testified as to his reasons for terminating
Gray. Although he listed various reasons, I am persuaded
that his testimony was an attempt to reveal the full
workings of his mind as to his reasons for terminating
Gray. Ted Dolega's testimony reveals, and I so credit, that
he terminated Gray because he was irritated by a number
of things. Ted Dolega terminated Gray because Dolega
considered that Gray had refused to work, because of
Gray's past history and general attitude, because of Gray's
low production, because Dolega considered Gray responsi-
ble for the fact that the crew left early on May 19, 1971,
and because Gray did not telephone to be excused or show
up for work on May 20, 1971.
On May 24, 1971, Gray telephoned Ted Dolega. Gray
was seeking to get his job back. Dolega told Gray that he
wanted to talk to him, to come in on May 25, 1971.On the
morning of May 25, 1971, Gray went to Respondent's
plant and spoke to Ted Dolega in the locker room. Gray's
testimony as to what occurred is as revealed by the
following excerpts from Gray's testimony.
A. He asked me if I know anything about the
Union.
Q.
A.
Q.
him?
And did you answer him?
Yes.
What did he say to you or what did you tell
A. He asked did I sign a card.
Q. What did you tell him to that?
A. About the Union?
Q. Yes.
A. I told him yes, I signed a card. He asked me did
I know of anybody else?
Q. Anybody else? Who?
A. Who did I get the card from.
Q. Did you tell him?
A. Yes, I did.
15 Stephanoff testified as to the time he prepared this note in a very
unsure manner Considering the overall facts, I find the timing as indicated.
16 The testimony of witnesses of both General Counsel and Respondent
as to many of the events was loose, fragmented and not complete . Cross-
examination of many of the witnesses did not do much to help illuminate
397
Q. Who did you tell him you got it from?
A. From Robinson.
Q. Anything else?
A. He wanted to know who else signed a card. I
told him I don't know of anybody. All I know is I got
the card from Robinson.
w
A. After that, Ted Dolega said that he would have
to let me go and that is it.
Q. What did you do then?
A. After that I left the plant.
President Theodore Dolega testified to the effect that he
did not interrogate Gray about his or others' union
activity, that Gray came in seeking his job back, and that
he told Gray that as far as he was concerned that Gray was
terminated, that he had shown up for work, and that he
was not going to go along with him any longer.
The resolution of credibility between Dolega and Gray
upon the above referred to incident is a close one. There
are aspects of both witnesses' testimony casting doubt on
their reliability. I am convinced that Gray fabricated his
testimony concerning his alleged telephone call to Ronald
Dolega. Considering this and the logical consistency of all
the facts, I am persuaded that President Theodore Dolega's
testimony as to this incident is more reliable than that of
Gray. The overall facts reveal that Gray received his union
card from union officials at the outset of the campaign,
and that Gray was one of the three initial leaders. Gray's
testimony reveals that he told Theodore Dolega that he
received his union card from Robinson. It is possible that
Gray may have secured another union card from Robin-
son. It is also possible that Gray told Dolega that he
received a union card from Robinson when he had not in
fact done so. There is no explanation in the record with
respect to this matter . In sum , I am persuaded that
President Theodore Dolega's testimonial denial of the
interrogation of Gray is more credible than that of Gray on
such point and credit the facts accordingly.
Considering all of the foregoing, I find it clear, and
conclude and find, that Respondent, by President Ted
Dolega, did not interrogate Gray on May 25, 1971, about
his and others' union activity.
Considering all of the foregoing and all of the facts, I am
persuaded and conclude and find that the facts are
insufficient to reveal that Respondent discriminatorily
terminated Gray on May 21, 1971. The facts reveal that
Gray had been a strong and active union adherent. The
facts also reveal the Respondent to be a small concern
having some 38 to 40 employees. The overall circumstances
reveal, however, that the union card distribution and
signing did not occur on plant premises, but that some
union talk did occur on plant premises. Considering all of
the facts, I am not persuaded to and do not infer company
knowledge of Gray's union activities until after the
Company became aware of the Union's demand for
the facts . There is no testimony to reveal that Gray insisted on a layoff.
Such a notation , however, is not clearly inconsistent with the testified-to
argument concerning need for more help, and instructions to go home or
work.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition . Considering all of the foregoing, and the
events of May 19, 20, and 21, 1971, I am persuaded that
the facts are insufficient to reveal that Respondent
discriminatorily terminated Gray on May 21, 1971. 1 so
conclude and find.
E. The Discharge of Robinson 17
Alleged Interrogation
William Robinson was discharged by the Respondent on
May 26, 1971. Robinson had worked for the Respondent
for 6 years prior to his discharge. At the time of his
discharge, Robinson was working as a heater.
As previously indicated , Robinson became active in
union organizational efforts in late April or early May
1971. Robinson signed a union card prior to his discharge,
spoke to other employees about the Union, andidistributed
union cards.18
The Respondent has a liberal and lenient attitude toward
employee absenteeism and credit problems. In such regard
the Respondent presents a humane and understanding
attitude. Respondent President Dolega had talked to
Robinson in April 7, 1971, about absenteeism and warned
him about the same. Despite this, Robinson was absent
some 54 1/4 hours from April 7, 1971, to May 8, 1971,
without Respondent action thereon. Robinson had had his
wages garnished in 1970.
On the morning of May 26, 1971, President Ted Dolega,
circa 10:30 a.m., approached Robinson with a letter about
a debt of Robinson, told Robinson that Robinson had
promised to straighten out his credit, and asked Robinson
if he had straightened out his credit. Robinson told Dolega
that as far as he knew he had called about the last one that
there had been a letter on.
Around 3:30 p.m., on May 26, 1971, President Ted
Dolega called Robinson into the office and told him that
he had a garnishment, and that he was terminated that day.
Dolega presented Robinson his checks at that time.19
President Ted Dolega testified to the effect that he
terminated Robinson because of chronic absenteeism and
garnishment problems. It is sufficient to note that Dolega's
testimony about talking to Robinson on May 26, 1971,
about absenteeism was conflicting. Considering the nature
of Dolega's testimony and the overall facts, I discredit his
testimony about talking to Robinson on May 26 about
absenteeism. Despite this, I am persuaded that President
Theodore Dolega's testimony to the effect that he was
motivated in the discharge of Robinson because of his
11 The facts are based on a composite of the credited aspects of the
testimony of all witnesses testifying with respect to such matter
iR I do not credit Robinson's testimony that he wore a union badge at
work Robinson 's testimonial demeanor and prior statements reveal an
inclination to stretch the truth to his own advantage Thus, he and Ted
Dolega both present themselves as witnesses who are not thoroughly
believable
19 May 26, 1971, was not Respondent's regular payday. Robinson
testified to the effect that President Dolega told him in effect that he was
being discharged because Respondent knew of his union activities and
desires and didn't need his kind Considering Robinson 's demeanor and
prior statements , I am persuaded that Robinson has tried to stretch the truth
and build his case Although Ted Dolega has not been presented as a totally
believable witness, 1 find his testimonial denial of this alleged reference to
Robinson's union activities to be more believable than the testimony of
absenteeism and his garnishment problem is credible and
so credit.
Considering all of the foregoing , I am persuaded and
conclude and find that the evidence is insufficient to
establish that Respondent discriminatorily discharged
Robinson because of his union activities . The facts reveal
that Robinson was an active union adherent . The facts also
reveal , however, that Robinson had an absenteeism
problem , and that he had a garnishment problem. The
totality of the facts do not persuade that Robinson was
discharged because of his union activities . I so conclude
and find.
F. The Layoff and Termination of Austin
Miscellaneous
Louis Austin was terminated by the Respondent on June
30, 1971. Prior to this time Austin had worked for
Respondent for 3 1/2 years . During such time Austin had
worked as a janitor, towmotor driver, and as a sandblast
operator . At the time of Austin 's termination, he was
working as a sandblast operator.
In late April or early May 1971, Austin along with Gray
and Byrge contacted the Union . Thereafter they engaged
in union organizational work. Austin signed a union
authorization card, passed out cards , and distributed union
literature . Austin wore a union pin during the months of
May and June 1971. Austin also served as the union
observer at the NLRB representation election held on June
25, 1971.20
After Austin signed a union card , commenced his union
activity, and was wearing a union pin , his hours of
employment were cut. Thus, whereas during the months
preceding such time his hours had varied from 31 to 40
hours per week , his hours for weeks ending on May 22,
1971, and thereafter ranged from 16 to 32 hours per
week.2 i
During the several months before Austin 's June 30
termination , the following occurred.
1. In June , Supervisor Ronald Dolega told Austin in
effect that the union badge he wore could get him into
"trouble." 22
2. In late June , Foreman Stephanoff told some employ-
ees that "if you guys have a union in here the hammer
helpers will starve to death."23
3. About a week before the NLRB representation
election held on June 25, 1971, President Ted Dolega
approached Austin. Dolega had a copy of the NLRB
representation election notice (containing a sample ballot
Robinson . I so credit the facts
20 Considering all of the facts, I discredit Respondent 's witnesses who
testified to the effect that they did not see Austin wearing such union pin.
21 1 note that Austin only worked 12 hours for the week ending March 6,
1971, and did not work during the week ending March 14, 1971 These do
not appear to be representative weeks for the pre-May 22 , 1971. period of
time Further Austin had worked approximately one-half week when
terminated on June 30 . 1971-for a total of 1 11/2 hours
22 1 found Austin to appear to be a more frank, forthright , and truthful
witness than Ronald Dolega. I credit his version of this event over Ronald
Dolega 's denial
22 1 found Austin to appear to be a more frank , forthright , and truthful
witness than Boris Stephanoff I credit his version of this event over
Stephanofrs denial thereof.
THE RUPP FORGE COMPANY 399
thereon). Dolega inquired as to where he should put it.
Dolega asked Austin in effect if he knew who was the
leader behind the ones who wanted a union . Austin told
Dolega that he did not know but he wanted it too.24
The General Counsel contends that there was another
incident involving Austin having a bearing on the issues.
Thus in June 1971 , President Ted Dolega spoke to
employees and told them he wanted a "no" vote from
them . I see nothing violative of the Act in such remarks.
On June 30 , 1971, President Ted Dolega told Austin that
he had something to tell him and would talk to him later.
Later Austin spoke to Dolega and told Dolega that he
would like to get more time in or be laid off where he could
get a job . President Ted Dolega told Austin that he was
going to cut back (in employment) and had been thinking
Jal yang Austin off. Austin asked Dolega to tell him when
he would be laid off . Dolega told Austin that the layoff
would be that day, that he thought Austin would have quit
before then.
It is clear from both Austin 's and Ted Dolega's
testimony that Respondent had subcontracted larger
forgings for sandblasting before the commencement of
union activities . It is also clear from the evidence that a
significant drop in hours of employment for Austin
occurred shortly after his commencement of union activity
and wearing of a union pin.
Austin credibly testified to the effect that he knew that
the larger forgings , constituting 10 percent of the work, had
been subcontracted prior to his union activity . Austin also
credibly testified to the effect that he knew the "forgings"
normally cleaned by him were being farmed out when his
hours were reduced . I find Austin's testimony to such
effect more credible than I do President Ted Dolega's
testimony that the reduction was because of a cut in
revenue . It suffices to say that I discredit President Ted
Dolega's testified reasons as to an economic basis for the
reduction in hours.
Considering all of the foregoing , I conclude and find that
Respondent violated Section 8(a)(1) of the Act by (1)
Ronald Dolega 's threat in June 1971 that the union badge
could get Austin in trouble , (2) Foreman Stephanoff's
threat , in late June 1971 , that if the Union came in the
hammer helpers would starve to death , and (3) President
Ted Dolega's unlawful inquiry of Austin as to who was the
leader behind the Union.
Considering all of the foregoing , I am persuaded and
conclude and find that Respondent reduced Austin's hours
of employment because of his union activity and desires. It
is clear that Austin was a strong and open union adherent.
The facts otherwise reveal that Respondent had a propen-
sity to discriminate against employees because of their
union activity . Considering all of this, I find and conclude
that the preponderance of the facts reveals that Respon-
dent was discriminatorily motivated in its reduction of
hours of employment of Austin in May and June 1971.
Such conduct is violative of Section 8(a)(3) and ( 1) of the
Act. It is so concluded and found.
24 1 credit Austin 's testimony to the above effect I discredit Dolega's
denial of such interrogation.
25 The facts are based on a composite of the credited aspects of Byrge's
and Hurst 's testimony, and the logical consistency of all the facts I discredit
Considering all of the foregoing, Austin's clear and
continuing support of the Union, Respondent's demon-
strated animus , I am persuaded and conclude and find that
the Respondent in effect terminated Austin on June 30,
1971, because of his union activity . It is clear that
Respondent had made up its mind on June 30, 1971, to
terminate Austin . Considering all of the above , it is clear
that Respondent was motivated to terminate Austin
because of his continued union interests. Further , it is clear
that Respondent knew that any indicated desire for a
layoff by Austin was engendered by the continuing effect
of its discriminatory reduction of hours. It is thus clear that
Respondent has relied on the question of requested
"layoff" as a pretext to mask a discriminatory termination
of Austin . Such conduct is violative of Sections 8(a)(3) and
(1) of the Act. It is so concluded and found.
G. The Discriminatory Discharge of Hurst
Miscellaneous
Sam Hurst was terminated by the Respondent on June
30, 1971. Prior to Hurst's termination he had worked for
Respondent for some 4 occasions. On the last occasion
Hurst worked for the Respondent for 3 months. Hurst
worked as a hammer man and helper.
Hurst signed a union card at some date prior to his
termination on June 30, 1971. Other than that, the record
doesn't reveal a great deal of union activity on his part. It is
clear, however, that he did support the Union and that
President Ted Dolega believed he was a strong supporter
of the Union. Thus, prior to the June 25, 1971, NLRB
election, President Ted Dolega accused Hurst of marking
the sample ballot on the NLRB representation election
notice.
During the time preceding the NLRB representation
election on June 25, 1971, both Respondent and the Union
campaigned with respect to the election. The Respondent
held two meetings for its employees during this time. One
of the Respondent's meetings was held on June 4 and the
other on June 23, 1971.
At the meeting on June 23, 1971, President Ted Dolega
referred to a beer party that was being held by the Union
at a tavern, told employees that he could not afford a beer
party at a tavern but that, if he won the election, he would
give a beer party. President Ted Dolega also told
employees that he had been considering instituting
piecework and adding more work to the employees but
would not do so if the Union did not win.25
The NLRB representation election was held on June 25,
1971. After the election the Respondent gave its employees
2 hours off, and gave a beer party at the plant for the
employees. After the election President Ted Dolega was in
a victorious mood and spoke to various employees about
having won the election. President Ted Dolega asked Hurst
if he were glad. Hurst told Dolega that he was not glad.
President Dolega had the beer party in the shipping
denial of the same by Respondent's witnesses. It suffices to say that Byrge
and Hurst. on these points, appeared to be more fully frank, forthright, and
truthful witnesses than did Respondent 's witnesses on their points.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room . On this occasion President Dolega distributed the
weekly paychecks in the shipping room area 26 When
Hurst went for his paycheck , President Dolega asked him if
he wanted some beer . Hurst told Dolega that he did not
want any beer.
On Monday, June 28, 1971, it was hot and Hurst left
work 2 hours early . On the occasion he spoke to President
Ted Dolega and told Dolega in effect that he didn't have to
pay him for the 2 hours and indicated that he was leaving
from work . President Dolega told Hurst that he would tell
him that he could look for his new job . Dolega then asked
Hurst what he was looking for. Hurst told Dolega in effect
that he was not leaving to look for a new job, that he was
leaving because it was too hot.
On Tuesday, June 29, 1971, President Ted Dolega put up
a gripe box . Either on that date or the next 2 days, Hurst
placed a gripe in the box to the effect that he was not paid
the same as others , that Respondent wanted him to do the
work and not pay him for the work.
On Thursday, July 1, 1971, President Ted Dolega
discussed Hurst's gripe with Hurst . President Ted Dolega
told Hurst that he had 38 to 39 employees , was cutting the
number of employees down to 20 , and that Hurst was the
lowest man on the list. Hurst told President Dolega that
Dolega had just hired two new men . Dolega told Hurst to
let him know if he found a job. Hurst told Dolega that he
was not looking for a job. Dolega told Hurst that he hoped
he found a job , and that if he found one he would give him
a good recommendation.
Later that day Hurst asked President Dolega if he were
going to be laid off that day or the next , to let him know
when he was going to be laid off. President Ted Dolega
told Hurst that he would let him know at 3:30 p.m.
Later, Vice President Ronald Dolega told Hurst that he
was laid off.
On Friday, July 2, 1971, Hurst stopped by Respondent to
pick up his vacation check . On this occasion Hurst had
another conversation with President Ted Dolega. President
Ted Dolega told Hurst that he had been laid off because he
was the lowest man on the list . Hurst told Dolega that he
had just hired a man about a month ago. President Dolega
told Hurst in effect that the man was a heater, that if Hurst
wanted that job , he could have it. Hurst declined the job as
a "heater."
President Dolega testified to the effect that he was
economically motivated in the layoff of Hurst, that he had
started cutting back in October 1970. The facts reveal that
the Respondent was employing some 38-40 employees
during the months preceding the layoff of Hurst . The facts
also reveal that Respondent advertised in early June for
forge shop help-hammerman , heaters, and forge helpers.
At the time of Hurst's layoff, Respondent had not hired the
hammerman advertised for. The facts do not reveal any
logical reason why Respondent would be advertising in
early June for employees and then commence to layoff in
late June.
The General Counsel contends , against Respondent's
economic defense , that Respondent was apparently willing
to bump a man with higher seniority to offer Hurst the
heater job . The record does not so reveal . It is clear from
all the facts that the "heater" position concerned an
employee with less seniority. The General Counsel also
contends that President Dolega's testimony that he did not
take Hurst back because he had made verbal threats and
abrasive remarks to his supervisors reveals an inconsisten-
cy with the economic defense . It is sufficient to say that the
questioning of Dolega did not establish that this was his
frame of mind at the time of the layoff. It very well may be
that Dolega learned facts after Hurst 's layoff and was
motivated thereby as to the matter of recall or rehiring.
Considering all of the foregoing , I am persuaded and
conclude and find:
1. That President Ted Dolega , on June 23, 1971, at a
meeting with employees, threatened to institute a piece-
work system if the Union won the election. Such threat of,
reprisal constitutes Respondent 's conduct violative df
Section 8(a)(1) of the Act . It is so concluded and found.
2. That Respondent President Ted Dolega, on June 23,
1971, at a meeting with employees, told employees that he
would have a beer party for them if he won the election.
The foregoing occurred in a context wherein the Union
was having a beer party for employees during the
organizational efforts. Dolega told the employees that he
could not afford a beer party at a restaurant but would give
them one if he won the campaign.
It may be said that the promise of a beer party if he won
the election was a promise of benefit if a sufficient number
of employees voted against the Union and for the
Respondent . I am not convinced, under the circumstances,
that such promise of benefit would have even minimal
impact upon the employees in their secret ballot. It clearly
is not a significant benefit . It could even be said that where
the Union gives a beer party during organizational efforts
that impliedly the same or similar action would be taken if
the Union were successful. In short, I am not persuaded
that the promise of a beer party if the Company won the
election is a promise of a benefit that is significant or has
any significant impact upon an employee exercising his
rights under Section 7 of the Act, or in voting a free choice
as to a collective-bargaining representative or not. I find
such conduct , under the circumstances , not to be violative
of Section 8(a)(1) of the Act.
I have considered President Dolega's remarks on July 2,
1971, after the layoff on July 1, 1971, that Hurst could have
the "heater" job. Considering the fact that Hurst left work
on Monday because of the heat , the fact that Hurst was a
hammerman and Respondent had not hired a hammerman
after its June 9, 1971, advertisement , I am persuaded that
Dolega knew that Hurst would not accept the "heater" job
and that such offer was not in good faith.
Considering all of the foregoing, I am persuaded and
conclude and find that Respondent discriminatorily
terminated Hurst on July 1, 1971, because of belief of his
union activities and desires . Such conduct is violative of
Section 8(a)(3) and (1) of the Act. The facts reveal that
Hurst had been a union adherent, that Respondent had a
propensity to discriminate against union adherents, and
that Respondent attempted to pressure Hurst to get
another job, that Respondent needed a hammerman, and
that Hurst was a hammerman.
26 It may be that this was the normal place for distribution of paychecks
THE RUPP FORGE COMPANY 401
H. Events Concerning Byrge
As of the time of the hearing in this matter, Odell Byrge
had been employed as a press operator by Respondent for
around 3 years. Byrge was one of the three employees who
contacted the Union in late April or early May 1971. Byrge
was an active union adherent who talked about the Union
and passed out union cards and literature to fellow
employees. Byrge wore a union pin.27
The General Counsel introduced background evidence
through Byrge as to job harassment 28 Byrge had not
received reprimands for work performance prior to the
advent of the Union in this case. During the period of
campaigning for the NLRB representation election, Fore-
man Stephanoff commenced criticizing Byrge's work.
Stephanoff on occasion told Byrge that he was stupid and
wasn't doing the job correctly, and that he was taking too
long.
The harassment of Byrge is revealed by the following
credited excerpts from Byrge's testimony.
A. On particular job Boris put me on-small job. I
don't know.
Q. Was it a tedious job?
A. Yes, he put me on the job. He said, I don't want
any mistakes on the job and take your time and run
them right. He said, "Later after-Ted said, "I took too
long for the job." It might have been about five hours,
and I explained why I took so long. The foreman told
me to do it right. Then later after we came back on the
same job, Boris called me over and showed me the job
and said, "What was your problem here." And I said,
"Bons, the problem was that you told me how to run
this job." He said, "I am supposed to relay a message
that no matter what your excuse is, it is not good
enough." I said, "I did my best," he said, "It makes no
difference, your best isn't good enough."
On an occasion in June before the election President Ted
Dolega complained about Austin's demanding a meeting,
told Byrge that he didn't have time to meet with them
individually in the factory, and told Byrge that he should
keep his people in line. Byrge asked Dolega what this had
to do with him. Dolega said to Byrge, "You are one of the
organizers, aren't you?" Byrge told Dolega that he wasn't
one of the organizers.29 Dolega told Byrge that he was
telling him to keep his people in line.30
Byrge testified to the effect that at one of the company
meetings (June 4 and 23, 1971) he heard President Ted
Dolega ask employees if they wanted a union. Byrge also
testified to the effect that, at one of the meetings, President
Ted Dolega asked him if he wanted a union and that he
answered affirmatively. Robinson testified to the effect
that he was at one of the referred to meetings. Robinson's
ultimate testimony revealed that Dolega told the employ-
ees he wanted a "no vote" from them. Hurst testified to the
effect that he attended the two meetings . Hurst's testimony
did not allude to any interrogation of employees at the
meetings by President Dolega . President Dolega's testimo-
ny constituted in effect a denial of such interrogation.
Considering all of the foregoing, I am not persuaded by
Byrge 's testimony that such interrogation occurred and
therefore do not credit the testimony to such effect.
Byrge testified to statements made by Dolega at the
meeting as revealed by the following excerpts from his
testimony.
A. Well, he said something about the fellows
wanting a Union, and he said the reason he said some
of the fellows wanted a Union was to protect their jobs,
and I tell you now the Union did not want to tell me
how to run the job. The Union won't protect the job. If
I see fit to let you go, and I have a reason to let you go,
the Union will not help.
The General Counsel argues that this constitutes a threat
to the employees' job security. I do not agree and do not so
find or conclude.
Byrge was the lone witness to testify to a threat
concerning the institution of piecework . I have previously
credited Byrge's testimony to such effect and made a
finding thereto . Byrge also testified concerning President
Dolega's promise of a beer party if he won the election. I
have previously credited Byrge's testimony to this effect
and made a finding thereon31
Byrge testified to the effect that he overheard Stephanoff
tell a hammerman, Ray Jordan , in June 1971 , that the
hammermen would be the ones that would suffer, and he
(Stephanoff) would have it made.32 Such conduct consti-
tutes conduct violative of Section 8(a)(1) of the Act. It is so
concluded and found . It is not clear whether this is the
same conduct previously testified to by Austin. In any
event the remedy would be the same for one or two
instances of such violative conduct.
1. The Objections to the Election
Objections 1, 2, 3, 4, 9, 10, and 11, are presented for
resolution . The time period in question is between May 21,
1971, and June 25, 1971.
1. Objection 1, sets forth that "The Employer, by its
agents , interrogated employees with respect to their
activities on behalf of Petitioner ." The facts reveal that in
June 1971 prior to the election , President Dolega unlawful-
ly questioned Austin as to who was the union leader.
Such conduct constitutes conduct of interference with
the employees' free choice as to a collective-bargaining
representative . It will be recommended that objection 1 be
sustained.
2. Objection 2 sets forth that "The Employer, by its
agents, threatened employees in connection with their
union activities."
27 Ted Dolega testified to the effect that he knew that Byrge wore a
union pin
28 The facts are based on Byrge's credited testimony Stephanoff testified
in denial of the testimony of Byrge to such harassment Considering the
logical consistency of all the facts and the fact that I found Byrge to be a
more frank, forthright, and truthful witness to such matters than
Stephanoff, I credit Byrge 's testimony thereto over Stephanoff's
29 The facts reveal that Byrge wore a union pin during the union
campaign I find the above statement permissible under the circumstances.
30 The facts are based on the aspects of Byrge 's credited testimony
Byrge also testified to the effect that Dolega also asked whether Robinson,
Huggins, or Gray were leaders. Considering the logical consistency of all of
the facts , I discredit the testimony of Byrge and Dolega inconsistent with
the facts found
31 In the section relating to events concerning Hurst.
32 The facts are based on the credited aspects of Byrge's testimony. I
discredit Stephanoffs denial thereof.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts previously set forth reveal that Respondent, by
Ronald Dolega, threatened an employee about wearing his
union badge by telling him that it could get him in trouble.
The facts previously set forth that in June 1971, pnor to the
election, Foreman Stephanoff threatened employees with
reprisals by a statement to the effect that the hammermen
would starve if the Union got in.
Such conduct constitutes conduct of interference with
the employees' free choice as to a collective-bargaining
representative. It will be recommended that objection 2 be
sustained.
3. Objection 3 sets forth that "The Employer, by its
agents, reduced the hours of employees because of their
support of Petitioner."
The facts previously set forth reveal that Respondent
discriminatorily reduced the hours of employment of
employee Austin because of its belief of his union
activities. Such conduct constitutes conduct of interference
with the employees' free choice as to a collective-bargain-
ing representative. It will be recommended that objection 3
be sustained.
4. Objection 4 sets forth that "The Employee, by its
agents, threatened employees that the plant would close
down if they supported the union or if the Union were
selected."
The facts do not support this objection. It will be
recommended that this objection be overruled.
5. Objection 9 sets forth that "The Employer, by its
agents, distorted and misrepresented the facts with respect
to National Labor Relations Board national voting
statistics in AFL-CIO elections."
The facts reveal that on June 24, 1971, circa 3:30 p.m.
Respondent distributed a leaflet to employees setting forth
data allegedly relating to the fact that most employees
voted against AFL-CIO unions in 1968 and 1969. The
leaflet is as follows:
EXERCISE YOUR PROTECTED RIGHTS
FEDERAL LAW PROTECTS YOUR RIGHT TO
REJECT UNIONIZATION AND PROFESSIONAL
UNION ORGANIZERS. DO NOT BE AFRAID TO
SAY NO! THE LAW PROTECTS YOUR RIGHT
TO VOTE NO! IT IS AN UNFAIR LABOR PRAC-
TICE FOR A LABOR UNION TO COERCE YOU
OR RESTRAIN YOU IN ANY WAY IN THE
EXERCISE OF YOUR RIGHTS.
National Labor Relations Act, Sections 7 and 8
What have these protected rights meant to other
employees in the U.S.?
MOST EMPLOYEES VOTE "NO" TO UNIONS!
SURPRISED? JUST LOOK AT THE OFFICIAL*
FIGURES:
1. In all elections held in 1968 involving AFL-CIO
unions, only 143,374 employees voted "yes". BUT
MORE THAN 153,000 EMPLOYEES VOTED NO!
2. In all elections held in 1969 involving AFL-CIO
unions, only 126,687 employees voted yes. BUT
MORE THAN 141,000 EMPLOYEES VOTED NO!
3. In 1969, over 200,000 employees across the U.S.
voted AGAINST labor unions. They were not afraid to
vote NO! And they were in the majority!
4. In 1969, of all the petitions filed by employees in
plants across the U .S., seeking to remove the certifica-
tion previously given to the AFL-CIO, only 128 were
successful . Once they 're in, its pretty hard to get rid of
them.
5. Only about 20% of the nation -wide civilian
workers belong to a union of any kind . Eighty percent
do not. The percentage has actually decreased from ten
years ago.
6. Earlier years show the same results , and al-
though 1970 figures are not available yet, they probably
will show the same thing-most employees VOTE NO'
You should too! Most employees (80%) do not belong
to labor unions.
RETAIN YOUR INDEPENDENCE AND
VOTE WITH THE MAJORITY OF THE
EMPLOYEES IN THE U.S. VOTE NO ON
JUNE 25
*Annual Reports of the National Labor Relations
Board to The President of the United States and
Congress.
An examination of the statistics of the National Labor
Relations Board in the annual reports for the years 1968
and 1969 reveal that the statistics and data presented in the
foregoing leaflet constituted a misrepresentation of such
statistics.
Thus, whereas the foregoing leaflet asserted that most
employees vote "no" to unions , the statistics in the Board's
annual reports referred to for the years 1968 and 1969
show a contrary result. For the year 1968, in all election
results referred to, 294 ,005 employees voted in support of
unions and 212,467 employees voted in opposition to
unions . For the year 1969, in all election results referred to,
306,010 employees voted in support of unions and 220,409
employees voted in opposition to unions.
The leaflet distributed by the Employer asserted that in
all elections held in 1968 involving AFL-CIO unions, "only
143,374 employees voted "yes." But more than 153,000
employees voted "no ." The NLRB annual report statistics
reveal that these asserted statistics were based on statistics
involving one union elections .33 Thus , the annual reports
reveal that in one union election involving AFL-CIO
unions in 1968, 143 ,374 employees voted for AFL-CIO
unions and 153,135 employees voted against the AFL-CIO
unions.
In all elections involving AFL-CIO unions in 1968, the
annual report statistics reveal that more employees voted
for AFL-CIO unions than voted against unions, that more
employees voted for unions than voted against unions, and
that AFL-CIO unions received less votes than the
combination of votes against unions plus votes for other
unions.
The leaflet distributed by the Employer asserted that in
all elections held in 1969 involving AFL-CIO unions, "only
J•' The phrase " I union election" herein refers to elections wherein only
one union participated in such election
THE RUPP FORGE COMPANY 403
126,687 employees voted yes. But more than 141,000
employees voted no!" An examination of the NLRB
Annual Report statistics reveals that these asserted
statistics were based on statistics involving one union
elections . Thus the annual reports reveal that in one union
elections involving AFL-CIO unions in 1969, 126,687
employees voted for AFL-CIO unions and that 141,111
employees voted against the AFL-CIO unions.
In all elections involving AFL-CIO unions in 1969, the
annual report statistics reveal that more employees voted
for AFL-CIO unions than voted against unions , that more
employees voted for unions than voted against Unions,
and that AFL-CIO unions received less votes than the
combination of votes against unions plus votes for other
unions.
The Employer leaflet asserted that in 1969 that "of all
the petitions filed by employees in plants across the U.S.
seeking to remove the certification previously given to the
AFL-CIO, only 128 were successful. Once they' re in, its
pretty hard to get rid of them." The annual report statistics
from which this data allegedly was taken reveal that there
were 171 such petitions filed and that of such petitions
employees by the election process were successful in 123
cases in getting rid of the union. The actual statistics would
suggest the opposite from the conclusion presented by the
Employer. In this respect the absence of complete detail is
misleading. I would not find the erroneous figure of 128 as
composed to 123 to be of real significance in the total
context to the facts.
The Employer also asserted data as to percentage of
nationwide civilian workers belonging to the union. The
Petitioner does not argue or contend that this data is a
misrepresentation or misleading.
As indicated, I find that the Respondent' s leaflet
constitutes a misrepresentation of the facts. I am not
persuaded, however, that it is the type of misrepresentation
that would have a realistic impact that would affect the
employees' free exercise of choice as to a collective-
bargaining representative. Unlike the display or distribu-
tion of replicas of purported official N.L.R.B. ballots, there
is nothing by the representation to indicate that this is the
way that the government desires employees to vote. I find
it hard to believe that employees in the United States
exposed to general knowledge about current events and
news would make a decision based on whether they wanted
a union or not upon such general statistical information.
Rather, I am convinced that their decisions are based on
those matters having a more direct impact upon them. It
will be recommended therefore that objection 9 be
overruled.
6. Objection 10 sets forth that "The Employer, by its
agents, discharged William L. Robinson, Lee Gray, and
Lou Huggins because of their support for the Petitioner on
or about May 25 and May 26.197 L"
The facts previously found reveal that Respondent
discriminatorily discharged Lou Huggins on May 25, 1971,
because of his union activities or beliefs. The facts are
insufficient to reveal, however, that Respondent discrimi-
natorily discharged William L. Robinson or Lee Gray. It
will he recommended that objection 10 be sustained
insofar as the alleged discriminatory discharge of Huggins
is set forth. It is also recommended that objection 10 be
overruled insofar as the alleged discriminatory discharges
of Lee Gray or William L. Robinson is concerned.
7. Objection I I sets forth that "By these and other acts
the Employer has interfered with the necessary atmosphere
for a free and fair election."
The facts presented in support of this objection are the
facts relating to a promise of a beer party if Respondent
won the NLRB election. As previously set forth, I find
such promise of benefits, under the circumstances, not to
be the promise of a significant benefit, and not to have real
impact upon the employees' free exercise of their voting
rights. Accordingly, it will be recommended that objection
11 be overruled.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the Respondent's
operation described in section I, 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
Having found that the Respondent has engaged in
certain unfair labor practices , it will be recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent has discriminatorily
terminated the employment of employees Huggins, Austin,
and Hurst, it will be recommended that the normal remedy
therefore be imposed. Thus, it will be recommended that
Respondent offer reinstatement to their jobs to such
employees , reinstate such employees to their jobs and
make such employees whole for any loss in wages suffered
by such discrimination in accord with F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Company, 138 NLRB 716. Having found that Respondent
has discriminatorily reduced the hours of employment of
Austin, it will similarly be recommended that Respondent
make Austin whole for wages lost as result of such
discrimination.
CONCLUSIONS OF LAW
1. The Rupp Forge Company is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Steelworkers of America , AFL-CIO, is, and
has been at all times material herein , a labor organization
within the meaning of Section 2 (5) of the Act.
3. By interfering with , restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of employees , thereby discouraging member-
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in or activities on behalf of a labor organization,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The facts establish as alleged in objections 1, 2. 3,
and 10, that the Employer has interfered with the holding
of a free election on June 25, 1971.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 34
ORDER
Respondent , The Rupp Forge Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of
United Steelworkers of America , AFL-CIO , or any other
labor organization of its employees by discharging or
otherwise discriminating in regard to their hire or tenure of
employment or any term or condition of employment
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment , as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
(b) Interrogating its employees concerning their or other
employees ' union affiliation , activities , or desires, in a
manner constituting interference , restraint, or coercion
within the meaning of Section 8(a)(1) of the Act.
(c) Threatening its employees with reprisals in order to
discourage their support of a union.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form , join , or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act, and to
refrain from any and all such activities , except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Lou Huggins , Louis Austin , and Sam Hurst
immediate and full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges , and make each whole for any loss of
earnings he may have suffered by reason of the discrimina-
'" 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
35 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
tion against him in the manner set forth in the section of
this Decision entitled "The Remedy," with interest thereon
at 6 percent per annum . Similarly , make Austin whole for
loss of wages resulting from discriminatory reduction of
hours of employment in May and June 1971.
(b) Notify immediately the above-named individuals if
presently serving in the Armed Forces of the United States,
of the rights to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the University 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,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its premises at Cleveland , Ohio, copies of the
attached notice marked "Appendix."35 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by the Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it 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 insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.36
IT IS FURTHER RECOMMENDED as to those allegations of
the complaint not found to be meritorious, that such
allegations be dismissed.
IT IS FURTHER RECOMMENDED that Objections4 , 9, 11, and
10 (as to Gray and Robinson) be overruled. It is also
recommended that Objections 1, 2, 3, and 10 (as regards
Huggins) be sustained.
IT IS ALSO RECOMMENDED that the NLRB representation
election in Case 8-RC-8236, held on June 25, 1971, be set
aside.
IT IS FURTHER RECOMMENDED that the Board direct that a
second election by secret ballot be conducted among the
employees in the appropriate unit , at such time as the
Regional Director for Region 8 deems appropriate and
under his direction and supervision and pursuant to the
National Labor Relations Boards Rules and Regulations,
Series 8, as amended. It is recommended that the eligibility
of voters shall be in accord with the eligibility of voters'
requirements set forth in J. P. Stevens & Co., Inc.,
167 NLRB 266.
IT IS FURTHER RECOMMENDED that the Employer shall be
required to file an election eligibility list with the Regional
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 "
36 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 8, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
THE RUPP FORGE COMPANY 405
Director in accord with and for the purposes set forth in
Excelsior Underwear Inc., 156 NLRB 1236.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees concerning
their or other employees ' union affiliation , activities, or
desires , in a manner constituting interference , restraint,
or coercion within the meaning of Section 8(a)(1) of the
Act.
WE WILL NOT threaten our employees with reprisals
in order to discourage their support of a union.
WE WILL NOT discharge or otherwise discriminate in
regard to the hire and tenure of employment or any
term or condition of employment of our employees
because of their membership in and activities on behalf
of the Union herein or of any other labor organization
of their choice, except to the extent that such rights
may be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form , join , or assist labor
organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, and to refrain from
any and all such activities, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL offer to Lou Huggins, Louis Austin, and
Sam Hurst their former jobs or, if such jobs no longer
exist , substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges, and
we will pay each for any loss of pay he has suffered by
reason of our discrimination against him together with
interest thereon at 6 percent per annum . Similarly we
will make Louis Austin whole for any loss of wages
resulting from discriminatory reduction of his hours of
employment in May and June 1971.
All of our employees are free to become or remain, or to
refrain from becoming or remaining , members of United
Steelworkers of America , AFL-CIO, or any other labor
organization , except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
Dated By
THE Rupp FORGE
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 rights to full reinstatement upon application after
discharge from the Armed Forces , in accordance with the
Selective Service Act and the University 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 concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , 1695 Federal Office
Building , 1240 East Ninth Street , Cleveland , Ohio 44199,
Telephone 216-552-3715.