Central Manufacturing Co., Inc.

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Manufacturing Company, Inc. and International Union of District 50, United Mine Workers of America. Cases 25-CA-2877, 25-CA-3107, and 25-RC-3555 September 4, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On April 24, 1969, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8(a)(3) of the National Labor Relations Act, as amended, but finding it unnecessary to recommend a remedial order with respect thereto, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, and recommended that such allegations of the complaint be dismissed, and that an objection to the second election be overruled, as further set forth in the attached Decision. Thereafter, the General Counsel, and the Charging Party filed exceptions and supporting briefs The General Counsel also filed a brief in support of part of the Trial Examiner's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. 1. In the complaint, the General Counsel alleged that the Respondent's postsettlement conduct with respect to its pension plan violated Sections 8(a)(1) and (5) of the Act. However, at the hearing the General Counsel explicitly waived any contention that this conduct constituted an independent violation of Section 8(a)(1) and thereby precluded the Respondent from litigating any available defense to such allegation. In view of the above, and as we agree with the Trial Examiner in the circumstances of this case that the Respondent was under no obligation to bargain with the Union at the time it altered its pension plan, we find that the Respondent's postsettlement conduct did not violate '[Certain inadvertent errors in the Trial Examiner' s Decision have been noted and corrected I the Act. Accordingly, as the settlement agreement has not been breached, we shall order that it be reinstated, and in so doing do not reach, and consequently do not pass upon the remaining allegations of the complaint. 2. In Case 25-RC-3555, the Trial Examiner ruled upon an objection to the second election when in fact this objection was not before him as the Board had already sustained that objection on July 9, 1968, and had directed that a third election be held. The sole objection that the Trial Examiner could have considered was to conduct affecting the first election and then only in the event that the aforementioned settlement agreement, which incorporated a stipulation to set aside the first election, was found to have been breached. Accordingly, in view of our finding that the settlement agreement was not breached, we shall order that Case 25-RC-3555 be processed pursuant to our outstanding Decision, Order, and Direction of Third Election of July 9, 1968. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. IT IS HEREBY'FURTHER ORDERED that the settlement agreement in Cases 25-CA-2877 and 25-RC-3555 be, and hereby is, reinstated. IT IS HEREBY FURTHER ORDERED that the'Regional Director for Region 25 shall take the action set forth in our Decision, Order, and Direction of Third Election dated July 9, 1968. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE HORACE A. RUCKEL, Trial Examiner: On July 11, 1967, International Union of District 50, United Mine Workers of America, herein called the Union, filed an unfair labor practice charge (Case 25-CA-2877) against Central Manufacturing, herein called the Respondent, alleging violation of Section 8(a)(3) and, derivatively, 8(a)(1) of the National Labor Relations Act, herein called the Act, by discharging Floyd Morrow and Joseph McCord because of their activity in behalf of the Union. On the same date the Union filed a petition in Case 25-RC-3555. Pursuant to the charge the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for Region 25 (Indianapolis, Indiana) filed a complaint of unfair labor practices against Respondent dated August 31, 1967. Respondent filed an answer denying the commission of unfair labor practices. A hearing was held before me on November 2 and 3, 1967, at which all parties were represented. At the conclusion of the General Counsel's case in chief, on motion of the Respondent the hearing was recessed until November 13, and then until January 29, 1968. On September 15, 1967, a consent election was held pursuant to the Union's petition in Case 25-RC-3555, which the Union lost. The Union filed three objections to 178 NLRB No. 52 CENTRAL MANUFACTURING CO., INC. the election. The Regional Director directed a hearing on one of them and dismissed the others. Also, the Regional Director reserved a determination of challenges to ballots cast by Floyd Morrow and Joseph McCord, named as 8(a)(3)'s in Case 25-CA-2877. The hearing before me resumed on January 29, 1968, at which the parties entered into a settlement agreement, which included a stipulation to set aside the election and hold a second one The hearing was recessed indefinitely pending notification from the Regional Director of compliance with the settlement agreement The second election was held on April 10 which the Union again lost, by a vote of 26 to 15. Again the Union filed objections, one of which the Regional Director sustained On July 9 the Board, on the Regional Director's recommendation, set aside the election, to which the Respondent took no exceptions, and the Board on July 9 directed that a third election be held This election, in fact, was never held. On April 15, upon being apprised of the result of the election of April 10, the Union filed a new charge (25-CA-3107) The complaint in this case was issued on October 31, 1968, alleging for the first time a failure of Respondent to bargain with the Union in violation of Section 8(a)(5) of the Act On November 15, the General Counsel moved the Trial Examiner for leave to amend the complaint in Case 25-CA-2877, to reopen the record therein, and to consolidate CA-2877 with CA-3107. The motion was granted. On October 31 the Regional Director withdrew approval of the settlement stipulation entered into in CA-2877 the previous January 29, 1968. When the hearing resumed before me on January 13, 1969, I granted a motion to consolidate RC-3555 with CA-2877, as amended, and with CA-3107, and the issues were litigated together I. THE BUSINESS OF THE RESPONDENT Respondent, Central Manufacturing Company, Inc., is an Indiana corporation maintaining its principal office and place of business at Parker, Indiana, where it is engaged in the manufacture, sale, and distribution of automotive parts and related products During the year prior to the issuance of the complaint herein, Respondent in the conduct of its operations purchased and delivered to its plant goods and materials valued at more than $50,000 which were transferred to its plant directly from States other than the State of Indiana. During the same period Respondent manufactured, sold, and distributed at its plant products valued at more than $50,000 which were shipped from said plant to States other than the State of Indiana The complaint alleges and Respondent's answer admits that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. iI. THE LABOR ORGANIZATION INVOLVED International Union of District 50, United Mine Workers of America, is a labor organization admitting employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. The Union's Organizing Campaign and the Discharge of Floyd Morrow and Joe McCord' 'Pursuant to the settlement agreement entered into on January 29, 1968, 1. The campaign 329 Morrow came to work in January, 1967 for the Respondent, as a dye setter and setup man. Previous to this he had been employed for approximately 3 years by Pierce-Governor Company, a nearby plant, of which the Respondent is a wholly owned subsidiary. McCord began work for Respondent on May 10, 1967, as a truckdriver. Both Morrow and McCord were discharged on July 8 under circumstances hereinafter related. Union organization of Respondent's employees began on June 26, 1967, when Jake Haffner, the Union's International representative, at Morrow's invitation called at his home and left a number of union application cards with him. During the next few days Morrow obtained at the plant, before and after work and during break periods, the signatures of 20 employees to these cards, and McCord the signatures on three cards. No one else solicited signatures The first meeting of the Union for Respondent's employees took place on July 6, and at this meeting Morrow and McCord turned over the signed application cards to Haffner. Roy Knotts was a supervisor on the payroll of Pierce-Governor who worked in Respondent's plant as supervisor of the punch press division He was Morrow's immediate supervisor, under the general foremanship of Lee Mills. Morrow and Knotts were on friendly terms dating back to the former's own employment at Pierce-Governor. A few days before the union meeting on July 6, Knotts had dinner at Morrow's home. According to Morrow, there was some discussion of the Union during which Knotts cautioned him not to distribute cards on company time. Knotts denied while testifying that the Union was mentioned on this occasion. I credit Morrow's testimony in this respect 2 2. The Discharge of Morrow and McCord On Friday, July 8, at the morning break period, Morrow asked and was granted leave by Mills to go home to pick up his family and visit Morrow's mother, who Morrow said was ill. On the same day, shortly before noon, Mills approached McCord while he was working on a washer and told him that Ethel Brown, secretary to Charles Nearing, Respondent's president, wanted him to come to the office and pick up his paycheck. Morrow expressed surprise, reminding Mills that the employees had been paid the day before, and asked him what was up. Mills replied that he did not know. McCord asked Brown why he was being paid and Brown said that "somebody said you were drinking." When McCord protested that he had not been drinking, Brown said that he would have to talk to Nearing, who was not at the plant, and she gave him his paycheck As McCord was leaving the plant another employee told him that a final paycheck had also been mailed to Morrow, so McCord went to Morrow's home and informed him, and the two went to the plant to see Nearing. Nearing, Floyd Morrow and Joe McCord were paid a total of $4,654 in backpay, without reinstatement. When the settlement agreement was rescined by the Regional Director on the ground that it had been violated by Respondent in respect of its undertaking not to interfere with an agreed upon election, and the hearing resumed, not only did Respondent proceed with the presentation of its defense to the 8 (a)(3) violation, but the General Counsel recalled Morrow and McCord for further questioning Both the parties and the Trial Examiner treated the proceeding as being de novo This evidence is offered merely as going to show Respondent's knowledge of Morrow 's activity in the Union 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, had not returned to his office Brown confirmed to them the fact of their discharge, but gave them no reason for it Nearing admitted while testifying that he gave Morrow and McCord no reason for discharging them, nor is not controverted that Mills, their foreman, did not At the hearing, Nearing testified that his decision to discharge was based upon Brown's report to him that certain women employees had reported to her that one or both of the two employees had been "drinking on the job" Nearing testified that "they work around punch presses and-no one has any business drinking intoxicating beverages, working around a punch press " Nearing, when asked, admitted however that McCord was a truckdriver, work which had nothing to do with a punch press Nearing further conceded that neither Mills nor any other supervisor had complained that Morrow or McCord had been drinking on the job. Nor is it contended that Brown had seen either of the discharged employees drinking on the job, or under the influence of liquor, or that she had so reported to Nearing Brown herself was not called as a witness Nearing testified that the only employee who talked to him personally about either Morrow or McCord, was Cynthia DeHart when she signed a "statement" to the effect that Morrow had invited her "to join him in a drink of alcoholic beverages" while they were both working. Nearing was uncertain as to the date of the event. First placing it as around June 16, then June 23, he then stated that it "all happened after that. I can't tell you that it was that day or two or three days after that or when it was. It was all after June 23 " Nearing's testimony was both nebulous and contradictory. He had great difficulty in recalling dates, which I believe due in large part to the fact that he had no personal knowledge of Morrow's and McCord's conduct in the plant, and relied on accounts from employees as they were filtered through Brown who, herself, professed to Nearing no personal knowledge and did not testify Mills, who,was called, had no first hand information to contribute. Nor did Knotts, Morrow's immediate supervisor, who was on his vacation at the time, and was called back by Nearing who told him he had discharged Morrow and McCord and needed him at the plant. Knotts testified that he said nothing to Nearing about McCord's drinking until he was called back from his vacation and told that the two employees were discharged. He then, according to his testimony, told Nearing that he had seen a bottle in McCord's lunch pail at some unspecified previous time. Later, he contradicted himself and stated that he reported the event to Nearing prior to McCord's discharge. His testimony on direct' was as follows THE WITNESS I told him-it was right after I came back from my vacation, I told Mr. Nearing he told me that he let Joe and Floyd go and I told him then that there was a bottle, that I caught Joe back there with a bottle in his lunch bucket. TRIAL EXAMINER- But you didn't report it to him- Nearing until after they were discharged9 A No. Well, that is true. Q. You saw the bottle before? A. That is right. I saw the bottle Q My question is, did you report it to Mr Nearing before or after they were discharged? 'He was called as a witness by the General Counsel A. After they were discharged. Knotts described the contents of the bottle in McCord's lunch box as colorless He did not describe the bottle as a liquor bottle, but "a little round bottle, something similar to an olive bottle " There was no evidence adduced that Morrow or McCord had been drinking on the job, the reason advanced for Morrow's discharge. Cynthia DeHart who, after the discharges signed a statement for Nearing, testified in the following idiom to an encounter with Morrow in the plant- Q After you had been there about a half an hour on June 22, 1967, would you tell the Trial Examiner what, if anything, occurred between you and Floyd Morrow? A Yes, uh huh.-He had come through there and he had a bottle of orange pop and it smelled good TRIALEXAMiNER. A bottle of what? THE WITNESS- Orange pop So he asked me, I said, "That's either an awful strong drink or pretty good aftershave you're wearing," and he said, "Here." and let me have a drink, and it was-I mean, at seven-thirty in the morning it's kinda -ugh. Q. (By Mr. Strutz) What did it taste like? A. It tasted like orange pop and whiskey Q What did you do after you tasted the orange pop and whiskey9 A. Gave it back to him, and dust-you know, at seven-thirty in the morning, it's kinda- yuk. On the following day, according to DeHart's further testimony, after she had started to work Morrow and McCord came through the plant with a bottle "between them" and offered her a drink Q You didn't drink from that bottle, did you9 A Yeah. Q. Did you see them drinking from that A Yes, I did.-We all drank out of the same bottle. Q It was fairly common practice for everyone to gather around and drink out of it? A. Oh, usually-when you work with somebody eight hours a say, you're usually-you know, they're usually not into anything you're not . . It wasn't the general practice, but when he offered it I thought, you know, maybe he was, you know, he didn't have anything in it, but I was kinda shocked to find out it did. DeHart's shock is not entirely understandable in view of her further testimony that she not infrequently smelled alcohol on the breath of other employees, and her admission that she herself had "been known to stop and get a beer myself before I go in, one or two," or in light of her testimony that the previous December the witness, her husband, and a friend brought two bottles of liquor into the plant and drank while working until the foreman said they had better wait until the supper break. Then everyone drank, including the foreman and his wife DeHart's testimony that Morrow or McCord' offered her a drink on the second of two successive days, and that all three drank, seems in conflict with her further testimony that she did not see Morrow, at least, drink: TRIAL,EXAMiNER: Orange ade and whiskey9-Was that it? THE WITNESS' - But t don't know that he was drinking. He just might have used it `The witness' pronouns seem interchangeable so it is difficult at times to say to whom she is referring. CENTRAL MANUFACTURING CO.. INC. Q. He. might have been bathing in it'? A. Just the one day is the only day I can say he did, he was drinking because I tasted it that day. TRIALFxAytINER: What day was that? Tiir. WITNESS: That was the previous day. As shown by the witness' testimony as to the previous day, quoted first above, although she drank the mixture of orange ade and whiskey, she made no mention of Morrow or McCord having done so. According to DeHart's further testimony Nearing called her to the office while she was working. "right after July 4th," and asked her to sign a statement concerning Morrow's drinking, which she did. She testified as follows as to Nearing's stated reason for asking her for a statement' "Well, I needed- I needed an excuse for I iring them," and then he caught himself, and he said "Well, what I mean was, I have to have a reason. I have to provide a reason for the Union" or the International or something. DeHart admitted that at the time she left Respondent's employ she told another employee that she would do what she could to keep Morrow from coming back to work On redirect examination, when Respondent endeavored to show that one reason for her leaving was the conduct of Morrow and McCord, she testified as follows: Q. Do you recall telling Patty that you left that work because you didn't want to work around Floyd [Morrow] and Joe [McCord] who were a couple of drunks? A. I told everyone that the day I left. Q. That is why you quit your job9 TRIAL RAMiNER You told them what? TilE WITNESS: That I didn't have to work around a bunch of drunks DeHart's own uncontradicted testimony, when asked by Respondent's counsel when she finally quit work, was that it was on September 27. 1967, and I so find . Morrow and McCord had been discharged the previous July 8 Obviously DeHart had no reference to them as among the bunch of drunks she referred to. Indeed the record conveys the impression that Respondent was permissive when it came to drinking by the employees It is not disputed that one of the female employees was escorted home when she appeared drunk at work, and that she was not disciplined DeHart's own testimony speaks for itself. But so far as Morrow is concerned there is no evidence apart from the testimony of DeHart, which is contradictory. that he ever drank while at work.' As to McCord. there is no evidence of this whatever. Both Morrow and McCord denied that they had ever drunk liquor on the job, or brought liquor into the plant. As to the bottle which McCord admittedly had in his lunch basket, he stated that it contained only water to wash down some pills his doctor had given him for his 'Barbara Huffman tesulied . however, that on several occasions Morrow, who seems to have directed her work in minor respects , would on some occasions curse her for not performing it properly, or "when passing through the department would threaten imel with his fist" nlihough, "his conduct was always real nice." and "we got alongverswell - he has an awful temper if something does not go hisway--.,nd he would just get so mad." On one occasion Huffman reported Morrow's language to Knotts who assured her Morrow would not hurt her. She slated that she did not say anything about Morrow to Nearing until after Morrow had been discharged Huffman , although she gave it as her opinion that on the occasions she testified to Morrow had liquor on his breath , or had been drinking, does not state that she actually saw him drinking on the job 331 throat Both employees testified without contradiction that they had never been warned or reprimanded for drinking on the job or in the plant Conclusions as to the Discharges it is clear from this record that Nearing discharged Morrow and McCord, the only active proponents of the Union, on July 8, 2 days alter the first meeting of the Union. That this was cause and effect, and not sheer coincidence, is supported by the manner in which the discharges were effectuated. JNeither employee was given any reason for his sudden termination, although both sought this information from Nearing, and in his absence from Nearing's secretary, Brown, who merely referred them to Nearing, who was not available. Neither Mills. the general foreman, or Knotts, Morrow's immediate supervisor, advanced any reason to the two employees. There is in fact no evidence that either Knotts or Mills was consulted concerning the discharges. Knotts was on his vacation at the time, and was recalled to help out at the plant. Not only did Nearing not give the dischargees any reason for discharging them, he had no first hand knowledge of any drinking on the job. All the information he had was derived from Brown who obtained it from other employees Brown herself did not testify. DeHart, Huffman and Knotts, the only persons who spoke to Nearing himself about Morrow and McCord, did so after their discharge. Even in the hearsay reports as they were filtered through Brown to Nearing, there is an absence of distinction made between drinking on the job, being under the influence of alcohol. or having the smell of liquor on the breath, due to drinking just before coming to work, as Huffman herself admitted she did on occasion Morrow also stated that before reporting to work he tended his livestock and occasionally fortified himself with a drink. Most of the rumors Nearing testified about came to his attention during a period beginning about June 23. just before or at the time that Morrow and McCord began their solicitation for the Union. No complaint was made as to the conduct of Morrow and McCord by either Mills or Knotts, their supervisors. Nearing conducted no investigation of any kind, not even inquiring of the two employees concerned as to the truth of the reports as to them, nor of Mills or Knotts. These circumstances, plus the longstanding permissiveness of the Respondent toward drinking in and around the plant, whether or not while actually performing work, lead me to eonclildc that it was the activity of Morrow and McCord in organizing the employees into the Union which determined the Respondent to discharge them. Nearing admitted that no other employees had ever been discharged for the reason assigned here. I conclude and find that Morrow and McCord were discharged by Respondent for their activity in the Union and not for legitimate business reasons, in violation of Section 8(a)(3) and (1) of the Act B. The Alleged Refusal To Bargain 1 The appropriate unit It is conceded that all regular full and part-time production and maintenance employees of Respondent employed at its Parker, Indiana, plant including truckdrivcrs and janitors, exclusive of all office clerical employees, seasonal and/or casual employees, and all 332 CENTRAL MANUFACTURING CO., INC. professional employees, guards, and all supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act The record shows that on July 27, 1967. there were 44 employees in the unit exclusive of Morrow and McCord Since I have found that these two employees were discriminatorily discharged on July 8, the total number in the unit was 46. Since then the number in the unit has fluctuated between 37 and 50. Some of the original signers subsequently left Respondent's employ. 2 The Union's majority within the appropriate unit It is conceded that as of July 27, 1967, when it is contended Respondent first refused to bargain, 28 employees had signed union application cards, including those of Morrow and McCord. Respondent does not question the authenticity of any of the signatures to these cards. Since July 27, 1967, 17 others signed cards, 10 of these as late as the last week in March 1968, during a revival of card signing previous to the election of April 10, 1968 The dates on which the complaint alleges that the Respondent refused to bargain are July 27. and August 15 and 22, 1967. On these days, and continuing thereafter, it is said that the Union had the signed cards of a majority in the appropriate unit. As has been stated, neither in the charge in the first case (CA-2877), nor in the complaint, issued on August 31, 1967, was a claim of majority made or a violation of Section 8(a)(5) alleged. On the contrary, the Union decided to request an election to establish its majority, and an election was held on September 15, 1967. The Union lost by a vote of 20 to 18, with 3 challenges, two of which, Morrow and McCord, I find were properly within the unit as employees discriminatorily discharged. The hearing in Case CA-2877 was held on November 2 and 3, 1967, and adjourned to January 29, 1968. In the interim, on November 24, the Regional Director issued his Report on Challenges and Objections to Election, in which it was recommended that one of the Union's objections, identical with the alleged 8(a)(1) violation alleged in the complaint case, be resolved in the consolidated complaint and representation proceeding, and the Board so ordered. At the resumed hearing on January 29, 1968, the parties entered into a settlement agreement, which included a stipulation to set aside the results of the election of September 15, and to hold another, the Respondent not to interfere with it. The hearing was adjourned indefinitely pending notification to the Trial Examiner of compliance with the settlement agreement The second election took place on April 10, 1968, and the Union again lost, this time by a vote of 26 to 15. On April 15 the charge in CA-3107 was filed. The Regional Director's report on challenges and Objections to this second election issued on June 21. All objections but one were dismissed, and it was recommended that a third election be held. It has not been held to date. Again, Respondent interposed no objections to the election After a substantial interval. to wit on October 31, 1968, the Regional Office issued the complaint in Case CA-3107, based upon the charge filed the previous April 15. On the same date the Regional Director withdrew his approval of the settlement agreement in CA-2877, and set it aside. He also set aside the second election. On November 15, 1968. the Regional Director moved the Trial Examiner to grant an amendment to the complaint in CA-2877 to incorporate an allegation of refusal to bargain, in language identical with the refusal to bargain allegation in the new case. CA-3107. The conclusion is hardly avoidable that this amendment was moved as insurance against a finding that the charge in CA-3107, which was filed more than 6 months after any of the dates of July 27, August 15 and 22, 1967, was outside the 10(b) period and barred by the Act's statute of limitations.' At least a timely charge of some kind, was still extant and might support whatever superstructure of 8(a)(5) or other sections of the Act might be erected on this foundation at any future time. On December 30 the Regional Director withdrew approval of the Stipulation to Set Aside the Election in RC-3555, so that the one unresolved objection to the first election might be considered along with the two unfair labor practice complaints. 3. The objection to the election : alleged interference, restraint, and coercion Objection 2 to the election of April 10, 1968, is the same as the 8(a)(I) allegation of the complaint in Case CA-3105, and is that Respondent during the week prior to the election on April 10, polled employees as to whether they wanted the existing profit-sharing and retirement plan amended. Respondent has for some years had such plan, and it provides that employees shall have a certain vested share in its profits, depending upon length of employment. If an employee left Respondent's employ before having been employed 10 years, he would forfeit a certain percentage of the profits allocated to his account The uncontradicted, credited testimony of Donald F. Strutz, the Respondent's attorney, is that sometime prior to the second election held on April 10. certain employees asked Respondent to amend the plan to permit them to withdraw the funds which had been fully vested in their accounts, without waiting for retirement or termination of employment. Accordingly. a general meeting of employees was called at which the matter was discussed, and various employees stated that they wished to have the plan amended so that their own vested funds might be withdrawn ' Strutz told the employees that he would study the matter to see what could be done. Later, apparently during the early part of April, the employees were informed at a second meeting that the plan could be amended as suggested and that if they wanted it so amended it would he done. Those present voted unanimously for the amendment. Nearing, for the Respondent, on April 6 advised all employees by letter that the amendment had been effectuated. In the same letter he spoke of good working conditions at its plant and urged them to vote against the Union at the forthcoming election. These paragraphs of the letter were of the typical American Tube Bending variety, and privileged under Section 8(c) of the Act. Respondent's action in connection with the amendment to its profit-sharing plan, and its letter of April 6, are advanced as a reason for setting aside the election of April 10, and as a refusal to bargain with the Union. This matter is not alleged in the complaint as independent interference, restraint, and coercion in violation of Section 'The General Counsel claims, however, a "continuing " refusal to bargain after July 27, 1967 1 find this theory untenable In any event I find hereinafter that there was no refusal to bargain on July 27. 'One or two employees asked why the employees at Pierce-Governor at Anderson, Indiana, the parent company or Respondent, could not withdraw their money from that company's retirement plan, and Strutz replied that the Union there would not meet to discuss the matter The record shows that Pierce-Governor had recognized the Union and entered into a contract with it CENTRAL MANUFACTURING CO., INC. 333 8(a)(1) of the Act. I find the statements of Strutz at the above-described meetings and the amendment in question as insubstantial as affecting the result of the election. 1 shall recommend that the objection to the election he overruled. By the same token I find that Respondent did not violate the terms of the settlement stipulation entered into on January 29, 1968. by which it agreed not to interfere with the second election -that of April 10, 1968. As to whether Respondent's amendment to its prof it-sharing-retirement plan, made without consulting the Union, constitutes a failure to bargain collectively in violation of Section 8(a)(5) of the Act, depends upon whether the Union represented the employees in the unit found above to be appropriate, and whether a claim of a majority was ever made and recognition asked It has been found that there were 46 employees in the unit as of July 27, 1967. Prior to that date 28 employees had signed union authorization cards. The Union, having lost two elections, now relies upon these cards, all but 10 of which were signed prior to July 27, 1967, or 9 months before the charge of failure to bargain was filed on April 15, 1968, in Case CA-3107, and 15 months before the complaint issued on October 31. 1968. The remaining 10 were executed in March 1968 1 see no purpose in deciding whether cards of this vintage should, after two elections and various changes in the size of the unit and the personnel within the unit, should now be relied upon in determining a majority in the unit. I shall address myself to the question of whether on July 27, and shortly thereafter, as the complaint alleges, the Union claimed to have a majority of the employees in the unit and requested Respondent to recognize it 4. The alleged requests for recognition On July 27. 1967. Robert Davidson and Don Tobin for the Union, and President Nearing and Attorney Donald Strutz for the Respondent, met at the Spencer hotel in Marian, Indiana, to discuss the details of the first consent election eventually conducted on September 15, with one Regis Trenda acting for the Board's Regional Director. The testimony of both Strutz and Davidson is that while they were waiting in the lobby for the appointment with Trenda they discussed an existing labor dispute and pending layoff at the plant of Pierce-Governor company, a company also represented by Strutz. Davidson's testimony is that during the discussion of the Pierce-Governor situation he said to Strutz, with respect to Central Manufacturing Company. "Why in the world don't you recognize us and lets get on with negotiating the contract." to which Strutz replied that the company would not permit it. Strutz's testimony is that Davidson called him aside to ask him about the Pierce-Governor situation and he replied that there had been no change in that company's attitude toward recognition. Strutz denied that the Respondent was mentioned during this aside. I credit Strutz's denial. Shortly following this conversation the two men, with Nearing, went upstairs to the meeting with Trcnda and discussed the date and other details of the stipulated election at Respondent's plant According to Davidson, during this discussion he said at one point to Strutz, "Don, why don't you and Charlie [Nearing] recognize us because you know we've got the people signed up and we're going to win," to which Strutz replied that the Respondent wanted an election. Tobin, while testifving, supported Davidson's testimony on this point. Strutz admitted that Davidson used the words above quoted, excepting that he denied that Davidson made any reference at all to having a majority, and characterized what Davidson otherwise said about recognition as said in jest: Just before we agreed on the date, Bob Davidson said in a ver, very joking way, "Don, you can save yourself, the' company and us a lot of trouble by recognizing us." And I laughed and Charley Nearing laughed and the Board agent laughed, and Don robin and Bob Davidson thought it was a very good joke. and he roared. This was the only reference to recognition that he ever-that I ever heard from Bob Davidson or Mr Haffner or Mr Tobin or any representative of the Union . . It was taken as a joke by all of us It was made in a joking manner, and he made no representation as to a majority status. The next meeting of the parties, this time including Jacob Haffner. an international representative of the Union, but excluding Tobin, took place on August 15 at Strutz's office. According to Strutz and Haffner the principal purpose of the meeting was to discuss the situation at Pierce-Governor where some employees had gone on an unauthorized strike on August 4 The testimony of both Strutz and Haffner is that, at the request of Davidson, Leroy Bradnick, vice president of Pierce-Governor, was present The testimony of' all the witnesses is that the Pierce-Governor dispute was discussed in some detail, and that this was the purpose of the meeting (hence the presence of Bradnick, who had no connection with Respondent). But the testimony of Haffner is that after the parties had finished with the Pierce-Governor matter, Strutz asked him how things were going at Central Manufacturing, and Haffner, according to his own testimony. replied that they were going along well and that "I thought the Company should recognize us," to which Strutz rejoined in effect that the Respondent wanted an election Davidson's testimony supports that of Haffner and embroiders it by saying that Haffner added: "and then we won't have all these goings on that we understand is going on down there." When this meeting broke up another was arranged for August 22, apparently at the Chanticleer restaurant at Upland, Indiana, near the Pierce-Governor plant. At the meeting were Strutz, Bradnick and Davidson, and it is not controverted that this meeting, too, was for the purpose of discussing the Pierce-Governor threatened layoffs and threatened strike Again, Haffner and Davidson testified that while the men were eating Strutz asked how things were coming at Respondent's plant, and Haffner said quite well but he thought Respondent should recognize the Union, and that the Union had 33 or 34 signed cards, and that Strutz said as he had a week previously that Respondent wanted an election. Strutz and Bradnick both denied that Central Manufacturing was mentioned at this meeting. Conclusions As has been stated, the complaint alleges a refusal to recognize and/or bargain on July 27, August 15 and 22, 1967, the dates of the meetings described above. I am convinced that on neither of these occasions, except on July 27, did the Union request the Respondent to 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognize it as the collective- bargaining agent of its employees in the unit found to be appropriate. As to the request made, if such it was, on July 27, 1 credit the testimony of Strutz" that this was made jokingly. The Board held in J J. Newberry Company, 153 NLRB 1526, that a union's casual suggestion to an employer's attorney, during a break in a preelection conference, that the employer could avoid an election by recognizing the Union on the basis of a card check, did not constitute a "clear and unequivocal request to bargain," and that the rejection of the suggestion was not an unlawful refusal to bargain. It should be born in mind as to the meetings on August 15 and 22, 1967, that they were called for the purpose of discussing the events at Pierce-Governor where the Union was also asking for recognition and the employees were, or had been, on a wildcat strike. The only meeting arranged for the purpose of discussing the situation at Respondent's plant was the first meeting, on July 27, with a representative of the Board. Admittedly this was for the purpose of arranging for a consent election, pursuant to the Union's petition, which the Respondent readily agreed to. This was the course decided upon by the Union rather than to rely upon cards. Only after the Union lost two elections did it decide to attempt to obtain recognition based upon authorization cards, all but 10 of them 9 months old.' As to the meetings on August 15 and 22, 1 credit the testimony of Strutz and Bradnick that Central Manufacturing was not discussed, and that no request was made to bargain, even in jest. Even as to the Union's claim of a request to bargain on July 27, 1967, 1 noted that Davidson's own testimony did not go so far as to claim that a majority of the employees had designated the Union, but said only that "we've got the people signed up and we're going to win [the election]," without saying how many people. Neither did any representative of the Union, even if their testimony were cridited, claim unequivocally at the meetings of August 15 and 22, that the Union had a majority at Central Manufacturing as apart from Pierce-Governor. Nor were any cards offered for examination by Respondent. I find that at no time did the Union request recognition of the Respondent, or to bargain with Respondent. 1 shall recommend that the consolidated complaint be dismissed insofar as it alleges that Respondent refused to bargain with the Union in violation of Section 8(a)(5) of the Act 10 'At the time of the hearing on January 13, 1969, Trenda , who was the Board s representative present, was a regular student attending Notre Dame University Upon the request of the Respondent's officials I issued a subpena to testily Upon the instructions of the General Counsel and the Regional Director , Trenda refused to respond to the subpoena on the ground, as stated by counsel, that he was an "employee," of the Board, although it was not stated nor does it otherwise appear that he has done any work for the Board since his temporary employment in the summer of 1967 On motion I revoked the subpoena, although I am not satisfied as to the representations made as to the temporary nature of his work, or as to the applicability of Sec 102 118 of the Board ' s Rules and Regulations, which was invoked to exempt Trends from testifying 'See The Goodyear Tire and Rubber Company, 174 NLRB No 167, where the Board held that there was no basis for presuming that the card majority existing at the beginning of the 10(b) period continued over a 6-month period beyond that date "Although I have grave doubts that the complaint in Case CA-3107, which for the first time alleged an 8(a )(5) violation, was issued pursuant to a valid charge filed within the 10(b) period, and also doubt that the amendment to the complaint in CA-2877, similarly alleging a violation of Sec 8(a)(5), is not barred by the 6-month statue of limitation, I make no finding in this respect It is dispositive of this case that there was no request by the Union for recognition or to bargain IV. THE LFFFC7 OF THE UNFAIR LABOR PRACTICES UPON COMMFRCF The activities of Respondent set forth in section 111, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THL REMEDY 1 have found that Respondent discriminatorily discharged Floyd Morrow and Joseph McCord in violation of the Act. Ordinarily this would warrant the recommendation that Respondent cease and desist therefrom and offer them reinstatement to their former or substantially equivalent employment, with backpay. In view of the fact that the settlement stipulation between the Regional Office of the Board and the Union provided only for the payment of a sum of money to the dischargees without reinstatement, and that the Respondent has long since complied with this provision of the settlement agreement, it would be redundant to recommend that it take this action. I have further found the Respondent did not engage in the other unfair labor practices alleged in the complaint, or interfere with the election conducted on April 10, 1968 1 shall recommend that the complaint be dismissed as to such other alleged unfair labor practices, and that the Union's Objection 2 to the conduct of the election in Case 25-RC-3555 be overruled. Since it does not appear in this record that the settlement agreement pertaining to Morrow and McCord provided for the posting of notices, and since I have found that the Respondent has not violated this agreement, I shall not recommend the posting of the customary Notice to employees CONCLLSiONS OF LAW 1. Respondent Central Manufacturing Company, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Floyd Morrow and Joseph McCord as found above, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act. 4. All regular full and part-time production and maintenance employees employed at the Respondent's Parker, Indiana, plant, including truckdrivers and janitors, exclusive of all office clerical employees, seasonal and/or casual employees, and all professional employees, guards and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining withing the meaning of Section 9(b) of the Act. 5. Respondent has not, by refusing to recognize or bargain with the Union, violated Section 8(a)(5) or (I) of the Act. 6. Respondent has not engaged in the unfair labor practices, additionally alleged in the complaint, in violation of Section 8(a)(l) of the Act. CENTRAL MANUFACTURING CO., INC. 335 RECOMMENDED ORDER insofar as it alleges the commission of unfair labor practices within the meaning of Section 8(a)(1) and (5) of Upon the basis of the foregoing findings of fact and the Act, and that the Union's Objection 2 to the election conclusions of law, and upon the entire record in this case, of April 10, 1968, be overruled. I recommend that the consolidated complaint be dismissed