Air Filter Sales & Service of Denver, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1963

142 N.L.R.B. 384 (N.L.R.B. 1963)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause (1) at the time of the aforementioned lockout, Standard was not a member
of said employer association, and (2) it only acts in the capacity of a collective-
bargaining agent for and on behalf of its members.
As to (1) the record clearly discloses, and I find, that at the time of the 1959
lockout, Standard was in arrears in its dues to Respondent Association. Nonethe-
less, Respondent Association neither suspended Standard's membership therein, nor
did it expel Standard from membership. Furthermore, Standard participated in
the March 31, 1959, Respondent Association meeting where the members of that
organization were advised to lock out their employees if the union involved did not
accept Respondent Association's contract terms. In addition, (1) in June 1960
Respondent Association billed Standard for dues covering the second quarter of
1959 through the third quarter of 1960; (2) under date of July 31, 1959, Respondent
Association wrote Standard that the Board was seeking certain data concerning the
complaint case and asked Standard to submit such data; (3) under date of No-
vember 12, 1959, Respondent Association sent Standard a letter addressed, "Atten-
tion All Members," advising Standard of a forthcoming association dinner meeting,
and (4) under date of August 31, 1959, Respondent Association wrote Standard
advising it what had transpired at a meeting of plumbing contractors held on Au-
gust 27, 1959. In addition, the parties stipulated in the original proceedings that
Standard was a member of Respondent Association on March 31 and April 1, 1959
Under the circumstances, I find no merit to Respondent Association's contention
that Standard was not one of its members at the time of the lockout in question.
As to (2) the Board and court each found that Respondent Association and those
of its members who had locked out their respective employees had violated Section
8(a)(3) and (1) of the Act. The Board ordered Respondent Association as well
as those of its members who had discriminated against their employees to make
said employees whole for any loss of wages they may have suffered as a result of
the discrimination against them. The Tenth Circuit enforced said order. It thus
follows that Respondent Association is financially responsible for making the 13
Standard discriminatees whole or any loss of pay they may have suffered.?
The credited evidence discloses that Standard has long since gone out of business
and that Larry Roberts filed a voluntary petition in bankruptcy on November 13,
1962, listing his liabilities about $150,000, and his assets, consisting mainly of "hand
tools and various small items," about $3,000.
3. Conclusions and recommendations
Upon the foregoing findings and computations, I conclude that Respondent As-
sociation is obligated to make whole the employees here involved the backpay set
forth in the Supplemental Intermediate Report.
It is recommended that the Board adopt the foregoing findings and conclusions.
7 See E. F. Shuck Construction Co., Inc., et al., 114 NLRB 727, enfd . 243 F. 2d 519
(C.A. 9).
Air Filter Sales & Service of Denver , Inc. and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America , Local No. 435. Case No. 27-CA-1250.
April 30, 1963
DECISION AND ORDER
On January 31, 1963, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief.
142 NLRB No. 49.
AIR FILTER SALES & SERVICE OF DENVER, INC. 385
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding alleges that the Respondent , Air Filter Sales &
Service of Denver, Inc. (herein also called the Company ), has refused to bargain
with a labor organization named International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen , and Helpers of America , Local No. 435 ( also referred to
herein as the Union ), as the duly designated representative of an appropriate bar-
gaining unit of employees , thereby violating Section 8 ( a) (5) and ( 1) of the National
Labor Relations Act, as amended ( 29 U.S.C. 151 et seq .; also called the Act herein).'
The Respondent has filed an answer which, in material substance, denies the coin
mission of the unfair labor practices imputed to it in the complaint.
Pursuant to notice duly served upon each of the other parties by the General
Counsel , a hearing upon the issues in this proceeding has been held before Trial
Examiner Herman Marx , at Denver , Colorado. The General Counsel and the
Respondent appeared through , and were represented by, counsel at the hearing; and
all parties were afforded a full opportunity to be heard , examine and cross-examine
witnesses , adduce evidence , file briefs , and submit oral argument . The respective
briefs of the General Counsel and Respondent filed with me since the close of the
hearing have been read and considered.2
Upon the entire record , and from my observation of the witnesses, I make the
following findings of fact:
FINDINGS OF FACT
1. NATURE OF THE COMPANY 'S BUSINESS ; JURISDICTION OF THE BOARD
The Company is a Colorado corporation ; maintains its principal office and place
of business in Denver , Colorado; is there engaged in the business of assembling,
installing , and servicing air filters , refrigeration , and air-conditioning units; and is,
and has been at all material times, an employer within the meaning of Section 2(2)
of the Act.
Its gross income during the year preceding October 3, 1962 (the date of a relevant
stipulation in evidence) exceeded $50,000, of which more than $25,000 was derived
from the sale of air-conditioning facilities to, and servicing of, such equipment for
i The complaint was Issued on August 24, 1962, and is based upon a charge filed by the
Union with the Board on July 2, 1962 , and an amendment thereof filed on August 22, 1962
Copies of the complaint, charge, and amendment have been duly served upon the Respondent
2 The hearing transcript contains misspelled or otherwise garbled words , obviously the
result of inaccurate transcription . For example , the word "authenticity" is transcribed as
"ethicacy" ( a nonexistent word ) at page 106 of the transcript , and "cantankerous" (a
meaningless term In the context ) Is used at various places on page 152 in place of "con-
clusional. " However, as the record presents the material facts and issues , I see no need,
at least in the absence of a motion by any of the parties, to undertake correction of the
transcript.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a concern named Martin Marietta Company, which performs contracts relating to
the national defense, and uses the air-conditioning facilities for employees engaged
in such contractual performance. The Respondent and Martin Marietta Company
also have an agreement providing for the sale by the former to the latter "during the
next year" (from the date of the stipulation) of similar air-conditioning facilities
and related services for which it is anticipated that the Respondent will receive more
than $30,000. As the parties have stipulated, the furnishing of air-conditioning
equipment and related services to Martin Marietta Company, as described above,
"has an impact on national defense."
In the course of its business during the year ending October 3, 1962, the Company
purchased from supply sources located outside Colorado goods valued in excess of
$20,000, and such products were shipped from such locations into the said State.
By reason of such interstate transactions and shipments, and of the sale of goods
and services to Martin Marietta Company, described above, the Respondent is, and
has been at all material times, engaged in interstate commerce, and in operations
affecting such commerce, within the meaning of the Act. Accordingly, the Board
has jurisdiction of the subject matter of this proceeding. The assertion of such
jurisdiction will effectuate the policies of the Act?
II. THE LABOR ORGANIZATION INVOLVED
The Union admits to membership individuals employed by the Company; exists for
the purpose, in whole or in part, of dealing, on behalf of employees, with employers
concerning terms and conditions of employment; and is, and has been at all material
times, a labor organization within the meaning of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Respondent's business affairs are managed by its president, Donald S. Marma-
duke, who owned and operated the enterprise as an individual prior to the Company's
incorporation about a year ago. Although the Respondent has a board of directors,
which consists of Marmaduke, his wife, and the enterprise's bookkeeper, in actual
practice at least, Marmaduke exercises ultimate control over the Company's person-
nel policies. He testified to as much, stating, in effect, that it is he who establishes
the terms and conditions of employment of the Respondent's employees.
As the complaint alleges, and the answer admits, "(a)ll employees employed by
the Respondent at its Denver, Colorado, operations, excluding office clerical em-
ployees, guards, salesmen other than truck drivers and servicemen, watchmen, pro-
fessional employees and supervisors, as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act." The unit has been thus appropriate at all times material to the issues
in this proceeding.
The employees in the unit perform "shop and service" functions, and vary in
number from time to time. The record contains much evidence as to the number
on various dates. This relates, presumably, to the issue of the Union's right to
represent the unit. As regards that aspect of the case, the controlling fact, for
reasons that will appear, is that the Union represented a majority of the unit on
June 13, 1962, when the Company received a bargaining request from the Union.
However, some description of the numerical size of the unit at times other than
June 13, 1962, is appropriate to bring the evidence in question into accurate focus.
In connection with the unit composition, Marmaduke testified that the "usual
number" of shop and service employees "is seven to nine . . . depending upon the
season," but a document (General Counsel's Exhibit No. 5) prepared by Marmaduke
himself from the Company's records runs counter to any claim that the employment
of more than seven such employees is "usual." The exhibit deals with a 2-month
period (May 14 to July 13, 1962). During that time, the unit numbered nine on
only 4 days (May 14 to 17); eight for the next 4 working days; and a variable num-
ber from five to seven employees (seven most of the time) for the balance of the
period. It is evident that for the 2-month period, the average number of em-
ployees in the unit did not exceed seven; and thus, apart from any question of
efficacy of evidence of the unit size at other times than the date of the bargaining
request, and, particularly bearing in mind that the 2-month period is the only one
for which concrete employment figures are furnished in the record, I am unable
3 Ready Mimed Concrete h Materials, Inc., 122 NLRB 318.
AIR FILTER SALES & SERVICE OF DENVER, INC. 387
to accord any operative weight to Marmaduke's generalization that the "usual num-
ber" of shop and service employees "is seven to nine." 4
The bargaining request mentioned above is contained in a letter dated June 12,
1962, written by the Union, through one of its representatives, an organizer named
Edward Toliver, to the Company, and received by the latter on June 13, 1962. In
material substance, the communication set forth a claim that the Union was then
the collective-bargaining representative of a unit of the Company's employees (which
is the same, for all practical purposes, as the unit found above to be appropriate for
bargaining purposes); 5 stated that the Union was in a position to prove "we
represent a substantial majority of such employees"; requested that the Company
meet with the Union "for the purpose of discussing terms of a labor agreement
covering the wages, hours of work, and other conditions of employment"; and
suggested that the meeting be held at a specified place and time.
At the time of receipt of the letter, there were five employees in the unit. Four
of these had designated the Union as their bargaining representative, each doing
so by signing a card that had the effect of authorizing the Union to represent the
signatory as "collective bargaining agent." 6
The letter resulted in a meeting on June 19, 1962, between the Union and the
Respondent. The labor organization was represented at the meeting by Toliver
and another organizer, M. Edward Dunn; and the Company by Marmaduke and
an attorney, F. Nelson Pabst.
The business of the meeting opened with an inquiry by Pabst as to its purpose,
and Toliver replied that the Union wished to prove its majority status, secure
recognition from the Company for itself as the employees' bargaining representative,
and bargain with the Company. This was followed by some discussion about the
unit composition, the talk centering about the status of "an outside salesman" in the
Company's employ, and the upshot of the matter was that the parties agreed that
this employee would be excluded from the unit.
During the early part of the meeting (probably after the unit discussion, at least
according to the sequence of events reflected in Toliver's testimony), Marmaduke
or Pabst expressed doubt that the Union represented a majority of the unit, stating
that there had been some recent personnel changes. Toliver replied that he be-
* Similarly, I find no weight in testimony by Marmaduke that the Company "occasionally"
uses "temporary help" supplied by a firm named Manpower, Incorporated (evidently an
employment agency). He stated that they are paid by Manpower and are "actually" its
employees, and not the Company's, although later agreeing with a suggestion in a leading
question that what he means by his statement that "they are not your employees [is]
that they are not on your payroll." The evidence in question is insufficient to support a
conclusion that the "temporary help" were in fact employees of the Company, or that their
relationship to it or to its regular shop and service personnel was such as to warrant their
inclusion in the unit. One may note, in that connection, that the record does not even
establish the identity of any of such "temporary help" or the length of time any of them
did any work connected with the Company's business . Moreover, it is far from certain
that any such individual did such work at any material time. At first, Marmaduke testi-
fied that he "believe[s]" the Company secured such help "during all of the summer months
of 1962," but later he stated that "it is possible that we hired some part-time help" during
the week of June 11 (the week in which the bargaining request was made). He also said,
subsequently, that in that week "I cannot be sure of this, but we were hiring Manpower
temporary help." In short, the testimony concerning the "temporary help" appears to me
to be a digression from the material issues.
5 The unit definition in the letter, unlike the one found to be appropriate above, does not
exclude "salesmen other than truck drivers and servicemen" or, in other words, does not
except the one salesman employed as such by the Company. Representatives of the Union
and the Company agreed at a meeting held on June 19, 1962 , following the Company's
receipt of the bargaining request , that employees in the category of the salesman be ex-
cluded from the bargaining unit; and at the hearing in this proceeding, the Respondent's
counsel stated that " it has never been our understanding . . . the Union expected to have
the salesmen" as members of the unit. In short, the variance between the unit definition
found to be appropriate above and the one spelled out in the Union's letter does not
prejudice any of the parties , nor materially affect any of the issues.
6In addition to the four signatories in the unit at the time of the bargaining request,
two other individuals ( Joe Sandoval and Robert Casteel) had signed authorizations, but
their employment had terminated before the request . Needless to say, I exclude the
Sandoval and Casteel cards in making findings herein as to the Union 's representative
status.
712-548-64-vol. 142-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lieved that the Union nevertheless represented a majority and proposed that the
Company provide a list of the employees, and that the Union then would submit
its authorization cards to the Company. Marmaduke said that he did not have
such a list with him, but that he would use his recollection to state the names of
the employees then in the unit, and he proceeded to do so, whereupon Toliver pro-
duced the executed authorizations, read off the names of the signatories, and then
placed the cards in front of Marmaduke on a conference table at which the parties
were seated. Marmaduke picked up the cards and looked through them.?
Toliver thereupon reiterated the Union's claim of representation, and then asked
the Company's representatives to sign an instrument providing for the Respondent's
recognition of the Union as the unit's bargaining representative, and for a meeting
to negotiate "a complete labor agreement covering wages, hours and working condi-
tions" of the employees in the unit. Following this, there was some discussion as
to the Company's financial capacity to enter into such a contract, and whether the
Union could be of assistance to the Company, but apart from a provision for union
security, which Toliver said the Union would seek in contract negotiations, and to
which the Company's representatives said they would not agree, no terms for the
"complete labor agreement" were either advanced or discussed.8 After some dis-
cussion of union security, the Company's representatives stated, in substance, that
the Union's request for execution of the instrument providing for recognition and
contract negotiations would be taken under advisement and submitted to the Com-
pany's board of directors, and Pabst said that he would inform Toliver of the
Company's decision within a few days .9
On June 25, 1962, Toliver, not having heard from Pabst or any other representa-
tive of the Company, sought to reach Pabst by telephone at the latter's office, but
was unsuccessful, and left a message with the latter's secretary, requesting that the
attorney call him. Pabst did not do so, and, therefore, later that day, Toliver spoke
to Marmaduke on the telephone and inquired whether the Company had reached
a decision. Marmaduke replied that the matter was in Pabst's hands. Toliver stated
that he had tried unsuccessfully to reach Pabst, and requested that Marmaduke
communicate with Pabst and give the Union a reply to its June 19 recognition and
bargaining request. Pabst has never returned Toliver's telephone call, nor has the
attorney or any other representative of the Company ever given the Union an
answer to the request, nor, for that matter, communicated with the Union since
the telephone conversation between Toliver and Marmaduke.
T There is no dispute that Toliver made the cards available for inspection by the Com-
pany's representatives, all four participants in the meeting giving testimony to that effect
The fact that the cards were thus produced contributes weight to testimony by Toliver and
Dunn to the effect that Marmaduke undertook to recite the names of the employees from
memory in response to an offer to produce the cards if the Company would submit a list
of employees to the Union. I find that testimony credible and have based findings on it
s Contrary to Toliver and Dunn, Pabst denies that there was any discussion of union
security. Whether there was is of no great moment, but, in any case, I think it likely that
there was such a discussion. Provisions for union security are a conventional feature of
collective bargaining, and thus there is nothing implausible about the relevant testimony
of Toliver and Dunn. And its plausibility is heightened by the fact that Pabst himself
testified that there was discussion "in great detail" of the question whether unionization
would preclude the Company from hiring an employee with "specific ability." The fact
that this subject arose tends to support a conclusion that there was some talk of a require-
ment of union membership as a condition of employment. I find the relevant testimony of
Toliver and Dunn credible, and have based findings as to the union security subject on it.
8 According to Pabst, the commitment made by the Company was that "when they [the
directors] were in a position to decide what they should or should not do, or what was
best for all parties, they [the directors] were to notify me and I was to notify Mr. Toliver."
I do not believe that the matter was left in so indefinite a state as "when [the directors]
were in a position to decide." Marmaduke's version, in addition to the accounts of Toliver
and Dunn, supports a conclusion that the commitment was more specific, for the Company's
president testified that its representatives informed those of the Union that "we would
contact them after we had discussed it with our directors" [emphasis supplied] More-
over, the fact, as the evidence establishes, that Toliver sought to ascertain the Company's
decision from both Marmaduke and Pabst on June 25, 1962 (unsuccessfully, as will ap-
pear) tends to support testimony by Toliver, substantially corroborated by Dunn, to the
effect that the Company made a commitment on June 19 to give the Union an answer
within a few days, and I have made corresponding findings.
AIR FILTER SALES & SERVICE OF DENVER, INC. 389
B. Discussion of the issues; concluding findings
There can be no doubt that the Company has failed and refused to bargain with
the Union since June 19, 1962. If the Company had a bargaining obligation it
was not met by meeting with the Union on June 19, for the Respondent promised
on that occasion to inform the Union of its decision regarding the recognition and
bargaining request, and has failed to do so . Significantly , in their testimony , neither
Marmaduke nor Pabst gave any explanation of the Company's failure to keep its
promise; nor, indeed , did Pabst explain why he failed to return Toliver 's call of
June 25, although it is evident that he received the message that Toliver had called
on that date . 1e Particularly taking into account the Respondent 's continuing fail-
ure to keep its promise even after Toliver's efforts to ascertain the Company's bar-
gaining attitude on June 25 , the breach of the promise is as much a refusal to
bargain as though the Company had refused to do so in so many words.
The question, then, is whether the refusal has been lawful. On that issue, the
Respondent basically makes three contentions: (1) That the Union has never made
a sufficient bargaining demand (or a "clear demand," as the Respondent's brief puts
it); (2) that the labor organization lacks the requisite majority status to serve as
the representative of the unit; and (3) that the Company's failure to bargain was
lawful because it has had a good-faith doubt of the Union's majority status.
The first of these claims requires little comment. To accept it one would have
to ignore the letter of June 12, 1962, as well as the Union's request at the meet-
ing on June 19 that the Company sign the proposed agreement for recognition and
bargaining negotiations. Clearly, the Union made a sufficient bargaining demand
both in the letter and at the meeting, and the Respondent's claim to the contrary
is without substance.
Nor am I able to accept the Respondent's contention that the evidence establishes
that the Union lacks the representative status to require the Respondent to bargain.
There can be no question that the Union represented a majority of the unit (four
out of five employees) at the time of its initial bargaining request, nor, indeed,
that it continued to do so on June 19, the date of the meeting, by which time the
unit had increased to six, according to Marmaduke, by the hiring of one employee
(Watts)." The Respondent argues, however, that by June 25, the date of Toliver's
telephone calls to Marmaduke and Pabst, the Union had lost its majority status by
force of the fact that one of the card signatories (Messinger) had quit, and three
others (Martinez, Morrison, and Watts) had been hired. Thus, the argument runs,
granting the Union's majority status prior to these personnel changes, the organiza-
tion lost its right to represent the unit as a result of the changes, and therefore the
Company has since had no obligation to bargain with the Union.
This thesis has at least one basic flaw, and that is that there is a presumption, in
the words of the Court of Appeals for the Fourth Circuit, "that the authority of the
bargaining agent continues until the contrary be shown" (N.L.R.B. v. Highland Park
11 Pabst testified at one point : "I received three or four calls from Mr . Toliver , I believe
the calls, now , I believe now, because I didn't pinpoint it at the time, I believe the calls
were from Mr. Toliver prior to the meeting and subsequent to the meeting, but I don't
recall specifically what it was about" [emphasis supplied ]. So far as appears from
Toliver's testimony , he called Pabst's office once after the meeting , and that was on
June 25 when he left a message for Pabst . Especially in the light of Pabst 's testimony,
quoted above, I am satisfied that he received the message that Toliver had called him
11 Whether or not Watts began working for the Company on June 19 , as Marmaduke testi-
fied, is of no controlling effect , but I think it appropriate to note some factors in the
record that tend to raise a doubt as to the accuracy of Marmaduke 's testimony. An
affidavit Marmaduke gave a representative of the General Counsel in the course of the
latter's investigation of the charge names five employees in the unit as "definitely . . . on
my payroll" on June 19, 1962, and makes no reference to Watts. Moreover, the mechani-
cal clock punches in Watts' timecard for his first week of employment do not begin until
some point after the reporting hour on June 20. The starting and quitting times on
June 19, and the reporting entry on June 20 are handwritten . In explanation of the dif-
ference, Marmaduke testified that Watts "was a new employee ," and that handwritten
entries are "sometimes due to the fact the employee forgets to clock in ." Whether Marma-
duke's relevant generalizations are credible and sufficient to explain the omission of Watts'
name from the affidavit and the difference in the timecard entries need not be decided.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mfg Co., 110 F. 2d 632, 640).12 It is a fact that the Union represented the unit
at the material times of the bargaining requests made of the Company by the letter
of June 12 and at the meeting of June 19. Thus, applying the cited presumption
here, it is evident that the burden of proving that the right of representation has
been lost is upon him who asserts the loss, and that the right continues to exist
unless the burden has been met. The mere evidence of the turnover does not meet
it, and the nub of the matter is that the record is silent as to whether any of the
employees hired after June 19 have designated the Union as their bargaining repre-
sentative at any material time. It is by no means inconceivable that one or more
of the newly hired employees held membership in the Union, perhaps dating back
to another employment, or that the Union had otherwise been designated as bar-
gaining agent by one or another of such employees. It would be speculative and
quite improper, in my judgment, to hold that no such authorization exists, whether
by membership or otherwise, simply because the General Counsel has presented no
evidence on the subject, for he is under no duty to continue advancing with evidence
of the posture of authorizations in the unit after he has established the right of
representation at the time of a proper bargaining demand. That burden, clearly,
is upon the Respondent if it relies, as it does here, upon a claim that its failure
to bargain is justified by a loss of majority status after the bargaining requests. In
the light of the presumption described above, the record does not establish such a
loss.13
The sum of the matter, regarding the representation issue, is that the Union was,
at the time of the bargaining request contained in its letter of June 12, 1962, has
been at all material times since , and is now, the bargaining representative of the
employees in the unit described above, within the meaning of Section 9(a) of the Act.
With respect to the Respondent's remaining contention, it portrays itself as having
a doubt of the Union's majority at the June 19 meeting notwithstanding the produc-
tion of the cards as evidence of the Union's representative status; and , in its brief,
in effect depicts its doubt as reasonable because the majority was a "bare minimum
number" with no "allowance for inaccuracy, change of view, quits or new employees."
But this view of the matter strays off at a tangent from the material facts One of
them is that the Union produced hard evidence, in the form of the authorization
cards, that it represented four of a unit of no more than six employees at the time.14
The possibility of "inaccuracy" in the authorization appears to me to be a strawman.
There was no inaccuracy in the fact of representation set forth in the cards, and it is
clear beyond doubt that at the meeting the Company accepted the cards to be what
they purported to be, for no question was raised by the Company as to the authen-
ticity of the cards, although Marmaduke looked through the cards, nor did either he
or Pabst, the Company's lawyer, ask the Union for an opportunity to look into the
authenticity of the cards or the authorization each contained. 15 In fact , Pabst testified
>a See, also , N L.R.B. v. Harr 8 -Woodson Co ., Inc., 162 F 2d 97, 99 (C A. 4) The pre-
sumption is but an application of what the Court of Appeals for the Ninth Circuit has
called "the familiar rule that a state of affairs once shown to exist is presumed to continue
to exist until the contrary is shown ." N L R.B. v. National Motor Bearing Co , 105 F 2d
652, 660.
33I do not decide what would be the effect upon the Union 's claim of representation if
there were affirmative evidence that the Union has not been designated as bargaining repre-
sentative by employees hired after June 19. It is enough that there is no such evidence
Thus there is no need to consider whether adoption of the Respondent ' s representation
position would tend to encourage an employer to ignore , or stall a reply to, a proper
bargaining demand in the hope, or with the anticipation , that resignations or the hiring
of new employees will relieve him of a bargaining obligation raised by the demand
14 As indicated previously , it is possible that Watts was not on the Respondent 's payroll
on June 19 . If he was not yet employed , the unit on June 19 consisted of five employees
16I have some doubt that, as Toliver and Dunn testified , either Marmaduke or Pabst ex-
pressly stated at the meeting that the cards proved the Union's majority Toliver seemed
uncertain about the matter, at points testifying to such a statement , but at others indicat-
ing that he is inferring the Company 's acquiescence from the conduct of its representatives
rather than from any express statement by either ; and Dunn expressed uncertainty whether
it was Marmaduke or Pabst who made such a statement . It is not unlikely that in quoting
one or the other of the Company's representatives as expressly acknowledging the Union's
majority status, Toliver and Dunn are voicing an inference they draw from the fact that
no question was raised about the cards, and that the meeting turned to other matters
Except as a factor in evaluating the credibility of Toliver and Dunn, in general, it is of
no significant moment whether the Company expressly agreed at the meeting that the cards
proved the Union's majority status, for the evidence regarding the meeting warrants an
AIR FILTER SALES & SERVICE OF DENVER, INC. 391
that he "wasn't interested in the cards," stating that he "did not know the names and
addresses of the employees" and "couldn't identify the signatures" (an explanation
which does not negate the fact that Marmaduke raised no question about the cards,
and that neither he nor Pabst requested an opportunity to look into the authenticity
and reach of the cards). Clearly, too, the prospect of "quits and new employees"
is wholly ungermane to the question whether the Company had a good-faith doubt
of the Union's majority status on June 19. In sum, taking into account the production
of the cards, the Company's omisison to raise any question about them, and the
course of events that followed at the meeting, I am unable to accept the claim that
the Company doubted the Union's majority status on June 19 irrespective of the
production of the cards.
Moreover, there are compelling indications in the record that the failure to bargain
did not stem from a good-faith doubt of the Union's majority status, whether on
June 19 or subsequently, but was rooted, instead, in a disposition to dodge bargain-
ing irrespective of the Union's representative status.
This is evidenced by Pabst's own testimony that he did not examine the authoriza-
tion cards at the June 19 meeting "because it was my feeling the Union should be
willing to hold an election. I wasn't interested in the cards." Bearing in mind that
there was no evidence of any infirmity in the cards at the meeting, that no question
was raised regarding them, and that election and related representation procedures
necessarily take time, and sometimes involve protracted delay, one is justified in
believing that the claimed disinterest in the cards and the "feeling that the Union
should be willing to hold an election" stemmed not from a desire to ascertain the
representation wishes of the employees, but from a purpose to avoid bargaining or
to delay it in the hope or anticipation that the Union's majority would vanish with
the passage of time.16
This view of the Respondent's bargaining attitude becomes inescapable, it seems
to me, when one adds to Pabst's admitted disregard of the cards the important fact
that the Company has never kept the promise it made at the June 19 meeting to
inform the labor organization of its decision regarding the Union's request for
execution of the proposed agreement for recognition and negotiations; and that
Pabst has never returned Toliver's call of June 25, even after Toliver's request of
Marmaduke on that date that the latter communicate with Pabst with a view to
securing an answer to the Union's request. One would think that measured by the
standard of ordinary business courtesy if nothing else, if the reason for the failure
to bargain was a doubt of the Union's representative status, Marmaduke or Pabst
would have so informed Toliver in reply to his efforts on June 25 to have the Com-
pany fulfill the promise it had made at the meeting. The failure of Marmaduke
and Pabst to do so, not to speak of the broken promise, is a persuasive indication
inference, and I am persuaded, that the Company, whether or not it expressly acknowledged
the Union's representative status, manifested tacit acquiescence in the Union's claim of a
majority, doing so by not raising any question about the cards, and, following their pro-
duction, proceeding to a discussion of other subjects such as the proposed recognition and
negotiating agreement, union security, and the Company's financial capacity to contract
with ,the Union.
10 Marmaduke and Pabst testified, and Toliver and Dunn denied, that the Company made
a proposal at the meeting for a representation election. There are factors in the record
that tend to support Toliver and Dunn. One is that Marmaduke, who was called as a
witness first by the General Counsel and then by the Respondent, made no reference to it
during his first appearance, although on that occasion, after some testimony regarding the
meeting under interrogation by the General Counsel, he described it at some length under
examination by the Respondent's counsel. He advanced the claim for the first time when
called by the Respondent, doing so after Pabst testified. It is noteworthy, too, that the
Company, as previously described, manifested tacit acquiescence, by conduct, following the
production of the authorization cards, in the Union's claim of majority status. In any
case, whether the election proposal was made is of no great importance and need not be
decided, for, assuming that the suggestion was put forward, the question still remains
whether the failure to bargain stemmed from a good-faith doubt of the Union's majority
status. It may be borne in mind , in that connection, that Board representation proceed-
ings may be quite protracted, and that election proposals as a means of avoiding or delaying
bargaining obligations are not uncommon, as the existence of many Board and judicial
decisions on the subject attest. The nub of the matter is that for the reasons set forth in
this report, whether or not the alleged election proposal was made, the record, taken as a
whole, impels a holding that the refusal to bargain was lodged in a disposition to avoid
bargaining without regard to the Union's representative status.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a doubt of the Union's status that the Company now professes to have had
was not a factor in the Company's failure to bargain.
In fact, some testimony Marmaduke himself gave leads one to that conclusion.
It may be recalled that at the June 19 meeting the Company's representatives took
the position that it would be necessary to submit the Union's request for recogni-
tion and negotiations to the Company's board of directors. According to Marma-
duke, following the meeting, he discussed the Union's request with his wife and
the Company's bookkeeper, who are the other two directors; and his testimony
contains three versions of the directors' bargaining attitudes.
In his first account, Marmaduke described the directors as deciding "that condi-
tions as they were, it would be best not to do anything about it"; and then, asked
what "conditions" he was referring to, he replied: "Our financial conditions and the
fact that we could not come to any understanding on just what they [the Union]
did offer or wanted to do with us." If this testimony is to be believed, the directors'
decision was not grounded upon a doubt of the Union's representative status.
But the course of the examination of Marmaduke that followed, and the subsequent
two versions of the directors' attitudes, are no less revealing. After his initial ac-
count of the decision, he was asked leading questions as to "what the opinion of the
directors was concerning the representation claim by the Union," and what was
"their opinion as to whether or not the Union did represent a majority of your em-
ployees." An objection to the questions was sustained, and in the course of the
ruling it was pointed out to the Respondent's counsel that he was "leading the wit-
ness . and testimony of that sort elicited from this witness in a leading vein
would not be particularly fruitful in the final analysis." 17
Following this, in response to interrogation as to what the directors had said,
Marmaduke testified- "I talked to the directors about our meeting with the Union,
what they had asked us to do, showed them the agreement paper, and their con-
clusion was the same as mine that at that time or at this time ...." There was an
objection at this point to the "conclusion," and continuing after disposition of the
matter, Marmaduke stated: "I talked to my wife, the office manager, told her what
was asked of us and she said she didn't feel the Union could help us at that time and
we should not bargain. I talked to Mr. Ballou (the bookkeeper], he was very
emphatic he thought it would be the worst time in the world to enter into any further
discussion." This, according to Marmaduke, concluded the discussion among the
directors. Again, significantly, in describing the directors' bargaining attitudes,
Marmaduke does not quote them as refusing to bargain because of any doubt of
the Union's representative status.
The third version and pertinent portions of its context appear in the following
excerpts from the record:
Mr. HAINES (for the Respondent) : I should like to offer for the record, and
I understand there will be an objection, but I think it is perfectly fair under
the circumstances that the witness's attention be directed to the question of
representation by the Union of the employees and I would like to ask if he
had any conversation concerning whether or not in the opinion of the directors
the Union represented the employees, and I will direct that question to Mr.
Marmaduke.
Mr. GILLIS (for the General Counsel): He properly anticipated General
Counsel's objection, and then stated the question. There has been no show-
ing the witness's recollection has been exhausted. He is giving a brief cursory
statement. I think the leading is not justified in the absence of the showing of
his recollection being exhausted.
TRIAL EXAMINER: I don't understand this at all. I think the question is
leading. I am not suggesting that in a given situation you cannot jog the
witness's memory but there would have to be a basis for it.
Mr. HAINES. I would like to make a statement, Mr. Examiner.
TRIAL EXAMINER: All right, Sir.
17 Although the questions were put to Marmaduke while technically under cross-
examination by the Respondent's counsel, It may be noted that he had been called by the
General Counsel as an officer of an adverse party under Rule 43(b) of the Federal Rules
of Civil Procedure, and the leading questions put to him by the Respondent's counsel were
objectionable because they went beyond the scope of Marmaduke's "examination In chief"
by the General Counsel. Also, the Interrogation sought the "opinion of the directors," and
hence was objectionable as calling for a conclusion.
AIR FILTER SALES & SERVICE OF DENVER, INC. 393
Mr. HAINES: I am asking if there was a subject discussed. That is not lead-
ing. I am asking what was said. That is not leading. He can say there was
no discussion. He can state what the discussion was, but it is not leading to
ask him if there was a subject discussed
TRIAL EXAMINER: The point is this. I think it is a suggestive question in the
light of what was developed here and I have to take the question within the
contents of the entire record. I think the question is highly suggestive, absent
of [sic] showing the witness's memory has been exhausted
He stated that completes the conversation. He has had an opportunity a
couple times to testify about the subject you are asking, and he didn't. How-
ever, what I am going to do is this. I think I have expressed myself sufficiently
about the value of answers to leading questions and suggestive questions, and
I will permit it.
You may answer.
* *
The WITNESS: Well, Mr. Nelson Pabst is the director, he very briefly said
he did not feel on the basis of what had been shown us that there was a majority
of our employees who wanted the Union 18 Mr. Ballou, the other director, said
that he felt the same thing, and he was more familiar with the financial aspects
of the business, and strongly advised against doing anything.
TRIAL EXAMINER: What did he say about representation?
The WITNESS: He also felt-
TRIAL EXAMINER: Tell us what he said, not what he felt, sir.
The WITNESS: He said "I don't believe the majority of your employees want
the Union."
* * * * * * *
The WITNESS: And my wife who is still another Director said, "Well, half
the people on the cards aren't even here, so how can they call it a majority?"
To the best of my knowledge, sir, those were their direct answers. But it didn't
come that fast.
The conflict in Marmaduke's testimony regarding the bargaining attitudes of the
directors is evident. In his first two versions, he not only does not quote them as
having any doubt about the Union's claim of representation, but he portrays them,
in essence, as refusing to bargain because of economic considerations. The third
version, which, in effect, depicts Marmaduke's wife and the bookkeeper as being
opposed to bargaining because of disbelief in the Union's claim of representation,
is not, in my judgment, worthy of credence because it is not only a wide departure
from the two previous versions, but came almost on the heels of a statement by
counsel, in the presence of Marmaduke, that he would like to ask the witness
"whether or not in the opinion of the directors the Union represented the employees";
and was the product of a leading and suggestive interrogation as to the directors'
"opinion." To accord any value to such testimony one would have to ignore the first
two versions and the leading and suggestive context that drew forth the third.
Although Marmaduke himself determines "the working conditions, wages, rates
of pay, hours of employment [and] benefits" (the conventional and customary
subjects of collective bargaining), I think it likely that, as he testified, he did discuss
the Union's recognition and bargaining request with his wife and the bookkeeper,
and there is no reason to doubt that, in effect, they did tell him, as his first two ver-
sions indicate, that the Company should not bargain because it would not be eco-
nomically desirable for it to do so. I am persuaded, in short, that a doubt of the
Union's representative status was not a factor in the directors' decision not to bargain.
In summary, taking into account the Company's disregard of the Union's proof of
representation at the June 19 meeting, its failure to keep its promise to notify the
Union of its decision regarding the Union's recognition and bargaining requests,
Pabst's omission to return Toliver's call of June 25, Marmaduke's failure to procure
for Toliver, as requested by the latter on that date, an answer whether the Company
would bargain, and Marmaduke's testimony to the effect that the Company's directors
were opposed to bargaining for economic reasons, I find that the Company's refusal
to bargain was not based upon any good-faith doubt of the Union's representative
is Pabst is not a director, and Marmaduke subsequently corrected his testimony that
Pabst is one.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status, but was rooted in a purpose not to bargain irrespective of the Union's right
to represent the employees in the unit.ie
That being the case, I find that by its refusal to bargain since June 19, 1962, the
Respondent has violated Section 8(a)(5) of the Act, and has thereby interfered
with, restrained, and coerced employees in the exercise of rights guaranteed them
by Section 7 of the Act, thus violating Section 8 (a)( I) of the statute.20
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section 1, 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(5) and (1) of the Act, I shall recommend below that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following conclusions of law:
1. Air Filter Sales & Service of Denver, Inc., is, and has been at all material
times, an employer within the meaning of Section 2(2) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, Local No. 435 is, and has been at all material times, a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees employed by the said Company at its Denver, Colorado, opera-
tions, excluding office clerical employees, guards, salesmen other than truckdrivers
and servicemen, watchmen, professional employees, and supervisors, as defined in
the Act, constitute, and have at all material times constituted, a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. The said Union was, on June 12, 1962, has been at all times since, and is now,
the exclusive representative of all the employees in the aforesaid appropriate unit for
purposes of collective bargaining, within the meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain collectively with the Union, as the exclusive
representative of the employees in the aforesaid appropriate unit, as found above,
the said Company has engaged, and is engaging, in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and 2(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Air Filter Sales & Service of
Denver, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, Local No. 435, as the exclusive
representative of its employees in a bargaining unit consisting of all employees em-
ployed by the Company at its Denver, Colorado, operations, excluding office clerical
19I do not agree with a position taken by the Respondent to the effect that a finding
that an employer 's refusal to bargain was not based upon a doubt of a union's majority
status hinges upon proof that the purpose of the refusal was to gain time in which to
undermine the union 's representative status. See Snow v N L R B , 308 F 2d 687
(C.A. 0). Furthermore , it seems evident that a bargaining refusal such as that involved
here would of itself tend to undermine a union's bargaining authority
20 The Respondent has Incorporated proposed findings in its brief. Each such proposed
finding is rejected upon the basis of the findings and conclusions made herein
AIR FILTER SALES & SERVICE OF DENVER, INC. 395
employees, guards, salesmen other than truckdrivers and servicemen, watchmen,
professional employees, and supervisors, as defined in the Act.
(b) In any other like manner interfering with, restraining, or coercing employees
in the right to self-organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act:
(a) Upon request, bargain collectively with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen, and Helpers of America, Local No. 435, as the ex-
clusive representative of the employees in the appropriate bargaining unit, described
above, with respect to their rates of pay, wages, hours of employment, and other
conditions of employment, and if an agreement is reached, embody it in a signed
contract.
(b) Post in conspicuous places at its plant and place of business, including all
places where notices to employees are customarily posted, copies of the attached
notice marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director of the Twenty-seventh Region of the National Labor Relations Board, shall,
after being signed by a duly authorized representative of the Company, be posted
by it immediately upon receipt thereof, and maintained by it for 60 consecutive
days thereafter in such conspicuous places. Reasonable steps shall be taken by the
said Company to insure that said notices are not altered, defaced, or covered by
any other material.2i
(c) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps the said Company
has taken to comply therewith 22
It is further recommended that, unless on or before 20 days from the date of its
receipt of this Intermediate Report and Recommended Order the Respondent notify
the said Regional Director that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent to
take the action aforesaid.
21 In the event that this Recommended Order is adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" In the notice. In the additional event that the Board ' s Order is enforced
by a decree of the United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
12 In the event that this Recommended Order is adopted by the Board, paragraph 2 (d)
thereof shall be modified to read : "Notify the said Regional Director, in writing , within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local No.
435, as the exclusive representative of a bargaining unit consisting of all em-
ployees of the Company employed at our Denver, Colorado, plant, excluding
office clerical employees, guards, salesmen other than truckdrivers and service-
men, watchmen, professional employees, and supervisors, as defined in the said
Act, with respect to rates of pay, wages, hours of employment, or other condi-
tions of employment, and if an agreement is reached, embody it in a signed
contract.
WE WILL NOT by refusing to bargain collectively, as required above, or in
any other like manner, interfere with, restrain, or coerce employees in the
exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities,
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except to the extent that such right 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 said Act.
AIR FILTER SALES & SERVICE OF DENVER, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of posting and must not
be altered , defaced, or covered by any other material.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
609 Railway Exchange Building, 17th and Champa Streets, Denver , Colorado,
80202, Telephone No. Keystone 4-4151, Extension 513.
Maxam Dayton , Inc. and Eva May Secrist , Edna Spitzer , Callie
Pearl Mills, Lois J. Horne , Edith Norris, Betty J. Freeman,
Winifred Ann Bailey
Central States Joint Board , Retail and Department Store Em-
ployees, Amalgamated Clothing Workers of America, AFL-
CIO ; Local 802, Amalgamated Clothing Workers of America,
AFL-CIO; and Their Agent , Agnes Smith and Eva May Secrist,
Edna Spitzer , Callie Pearl Mills, Lois J. Horne , Edith Norris,
Betty J. Freeman , Winifred Ann Bailey . Cases Nos. 9-CA-
2510-1, 9-CA-2510-2, 9-CA-2510-4, 9-CA-2510-6, 9-CA-2510-7,
9-CA-2510--8, 9-CA-2510-9, 9-CB-1022-1, 9-CB-1022-2, 9-CB-
1022-4, 9-CB-1022-6, 9-CB-1022-7, 9-CB-1022-8, and 9-CB-
1022-9. April 30, 1963
DECISION AND ORDER
On February 7, 1963, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. The Trial Examiner also found that the Re-
spondents had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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 In-
termediate Report and the entire record in the case, including the
142 NLRB No. 39.