Barlow-Maney Laboratories, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1946

65 N.L.R.B. 928 (N.L.R.B. 1946)

In the Matter of BARLOw-MANEY LABORATORIES , INC. and UNITED
FARM EQUIPMENT AND METAL WORKERS OF AMERICA, C. I. O.
Case No. 18-C-1071.-Decided February 11, 1946
Messrs . Francis X . Helgesen and Clarence A. Meter, for the Board.
Elliott, Shuttleworth d Ingersoll, by Messrs . O. N. Elliott, V. C.
Shuttleworth and Harry Wilmarth , of Cedar Rapids, Iowa , for the
respondent.
Mr. Charles W. Hobbie, of Cedar Rapids, Iowa, for the Union.
Miss Frances Lopinsky , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a third amended charge filed on November 4, 1944 , by United
Farm Equipment and Metal Workers of America, C . I. 0., herein
called the Union , the National Labor Relations Board , herein called
the Board , by the Regional Director for the Eighteenth Region (Min-
neapolis, Minnesota ), issued its complaint dated November 4, 1944,
against Barlow-Maney Laboratories , Inc., Cedar Rapids , Iowa, herein
called the respondent , alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat . 449, herein called the
Act. Copies of the complaint and notice of hearing thereon were
duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged
in substance : ( 1) that beginning about May 15, 1944 , the respondent
advised and urged employees to refrain from joining and assisting
the Union , made statements disparaging the Union , and circulated
an anti-union petition ; ( 2) that on or about July 5, 1944 ,•the respond-
ent discharged Harold Schroeder , and, on or about August 11, 1944,
discharged Helen Hulme , and thereafter failed and refused to reinstate
them because of their membership in and activity on behalf of the
Union; and (3 ) that on or about August 2, 1944 , and thereafter, the
65 N. L. R. B., No. 166
928
BARLOW-MANEY LABORATORIES, INC. 929
respondent refused to bargain collectively with the Union, although it
represented a majority of the employees within an appropriate unit.
On November 13, 1944, the respondent filed an answer and, on No-
vember 20,1944, amendments thereto, in which it admitted some allega-
tions of the complaint but denied that it had engaged in any unfair
labor practice.
Pursuant to notice a hearing was held at Cedar Rapids, Iowa, from
November 16 to 20, 1944, before Horace A. Ruckel, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the hear-
ing. The Union was represented by an organizer. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. At the close
of the hearing the Trial Examiner granted, over objection, a motion
by counsel for the Board to conform the complaint to the proof as to
formal matters, and granted a motion by counsel for the respondent
similarly to conform its answer. During the course of the hearing the
Trial Examiner made rulings on other motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner made during the course of the hearing and finds that
no prejudicial error was committed. The rulings are hereby affirmed.
On April 21, 1945, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served. upon the respondent and the
Union. He found that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act,
and recommended that the respondent cease and desist from the unfair
labor practices found and take certain affirmative action designed to
effectuate the policies of the Act. He also recommended that the
complaint be dismissed insofar as it alleged violation of Section 8 (3)
of the Act by the discharge of Helen Hulme. Thereafter, on May 19,
1945, the respondent filed exceptions to the Intermediate Report and a
supporting brief., Oral argument before the Board in Washington,
D. C., was requested by the respondent but was later waived by all
parties and was not held.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, and the entire record in the case, and, insofar as
the exceptions are inconsistent with the findings, conclusions, and order
set forth below, finds them to be without merit, and insofar as the
exceptions are consistent therewith, finds them to have merit.
'Neither counsel for the Board nor the Union filed exceptions to the Intermediate Re-
port . In view of the absence of such exceptions, and in accordance with the recommenda-
tions of the Trial Examiner , we shall dismiss the complaint insofar as it alleges that the
respondent violated the Act by discharging Helen Hulme.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Barlow-Maney Laboratories, Inc., an Iowa corporation having its
principal office and place of business at Cedar Rapids, Iowa, is engaged
in the manufacture of pharmaceuticals. In the conduct of its busi-
ness the respondent purchases materials consisting principally of
drugs and chemicals. Since the beginning of its operations on July
1, 1944,2 the respondent purchased materials amounting to approxi-
mately $13,000 per month outside the State of Iowa and caused them
to be shipped to its manufacturing plant at Cedar Rapids. During
the same period, the respondent's average monthly sales amounted
to approximately $25,000 per month. Of these sales, approximately
90 percent in value was made to purchasers located outside the State
of Iowa. The respondent concedes that it is engaged in commerce
within the meaning of the Act.
U. THE ORGANIZATION INVOLVED
United Farm Equipment and Metal Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference,., restraint, and coercion
1. Background and chronology
On May 1944, before the incorporation of the respondent, a group
of Shores Company employees met to discuss an employee grievance
2 Prior to July 1, 1944, there existed a corporation known as Shores Company, Inc.,
hereinafter called the Shores Company, which was engaged in the manufacture of pharma-
ceuticals for animal and human consumption . The officers of this corporation were Arthur
Barlow , president ; M. R. Wright , vice president and secretary ; and Gordon Shores and
Paul Maney , vice presidents . In May, 1944 , two organizations , named Barlow , Wright,
and Shores Company , hereinafter called B W & S, and Barlow -Maney Laboratories, Inc ,
the respondent , were formed On July 1, 1944, the Shores Company ceased to operate. Its
business , operations , buildings , and employees were taken over by the respondent and by
B W & S. The respondent continued , predominately , that department of the Shores Com-
pany which had manufactured pharmaceuticals for human consumption , and employed
the 45 persons who had been employed by the Shores Company in that department.
B W & S continued the balance of the Shores Company's operations and employed the
balance of its employees . Barlow and Nancy became officers and sole owners with Mrs.
Barlow , of the respondent , with Barlow , president and secretary of the respondent,
handling the administration of the new company, and Maney, as vice president and secre-
tary, in charge of production Barlow also became president and treasurer of B W & S,
and Wright and Shores became vice president and secretary , and vice president , respec-
tively, of that corporation . The record discloses that the corporate reorganization took
place to meet unstated requirements of the American Medical Association We find that
the Shores Company was not in financial straits and that the reorganization was not
made to meet any financial difficulty.
BARLOW-MANEY LABORATORIES, INC. 931
at the home of Harold Schroeder, an employee whose subsequent dis-
charge by the respondent is hereinafter related. As an aftermath of
this meeting, Schroeder visited Charles Hobbie, district president of
the Union, and made arrangements for a meeting of employees in-
terested in self-organization. This meeting took place on May 29,
at Hobbie's office, with approximately 17 employees present, of whom
12 then signed membership application cards. Other union meetings
were thereafter held, but no officers were elected pending recognition
of the Union by the respondent.
On July 12, 1944, the Union filed its original charge in the instant
matter.' On July 31, the Union wrote the respondent a letter in which
the Union claimed that it represented a majority of the respondent's
employees within an appropriate unit, and requested a meeting for
the purposes of collective bargaining 4 The respondent replied on
August 4, stating that it did not believe that the Union represented a
majority of the employees, and that it could not agree that the unit
described in the Union's letter was appropriate. The respondent made
no direct reply to the Union's request for a meeting. On August 9,
the Union filed a Petition for Certification of Representatives with
the Board's Regional Director. On August 11, the respondent and the
Union entered into a consent-election agreement, and agreed that the
election be conducted on August 29.5 Later, however, the Regional
Director allowed the petition of August 9 to be withdrawn at the re-
quest of the Union under circumstances hereinafter set forth, and the
election was canceled. In September 1944, and thereafter, the Union
filed amended charges alleging additional unfair labor practices, in-
cluding refusal to bargain.
2. Declarations and acts hostile to the Union
The employees' efforts to organize soon came to the attention of
their employer. As hereinafter more fully set forth, in June 1944,
Maney, then vice president of the Shores Company, called Schroeder
to Maney's office and asked Schroeder, according to Schroeder's testi-
mony, whether he was the one who had "contacted the Union," and
whether he was taking an active part in its organization; and that,
when Schroeder replied in the affirmative, Maney asked Schroeder
whether he was satisfied with his job. Maney testified that, on one
occasion, upon learning from Foreman Louis•Smejkal of the existence
8 The original charge alleged that the respondent had discriminatorily discharged Harold
Schroeder.
4 In its letter the Union described the appropriate unit as "All employees employed in
the Barlow-Maney Division who punch time cards and who perform production and main-
tenance work excluding members of management , full-time office clerical employees and
supervisors above the rank of working foremen."
"The unit described in the consent-election agreement included all employees of the
respondent except the executives, Barlow and Maney.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a union in the plant, Maney asked Schroeder : "Did you hear any-
thing about it [the Union] ?"; but that that was the only occasion that
Maney discussed unionism with Schroeder. Maney admitted that
during the Union's organizing campaign he discussed the Union with
employees other than Schroeder, and that certain anti-union employees,
on their own initiative, supplied him with information relative to the
Union's progress. Like the Trial Examiner, we find that Maney, in
conversation with Schroeder, made the statements attributed to him
by Schroeder.6
In June 1944, according to the uncontradicted testimony of em-
ployee Ida Hartz, whom we credit, Maney told Hartz that he was not
against unions but that he thought one unnecessary in the respondent's
plant, and that "as long as [the employees] were doing what was right,
there was always a chance of being promoted or given a raise from time
to time." In July 1944,' Maney called employee Doris Ball to his
office and, according to Ball's testimony, asked her "how things were
going in the plant," explaining that he "wondered" because on that
day he had received from the Union a letter saying that it represented
90 percent of the employees, and "he thought maybe they were trying
to pull something over him"; and that during this conversation Maney
inquired whether a named employee was a union adherent. Maney
did not admit or deny Ball's version of the conversation, but in testify-
ing concerning it, he admitted that he discussed with her "the friction
between the Union and the non-union workers," and exacted from her
a promise that she would cooperate "in seeing that the [tablet] depart-
ment was run in as harmonious a manner as possible." We find, as did
the Trial Examiner, that in the conversation described, in addition to
the statements testified to by Maney, Maney made to Ball substan-
tially the statements attributed to him by Ball.
In July 1944,8 Maney summoned to his office employee Helen Hulme,
whose termination of employment on August 11 was found by the
Trial Examiner not to be discriminatory, and engaged her in a lengthy
conversation concerning the respondent's production problems and
e Maney had charge of that department of the Shores Company which manufactured
drugs for human consumption . The employees of that department were taken over en
masse by the respondent ; and the relationship between Maney and Shores Company em-
ployees who on July 1 became employees of the respondent was not substantially affected
by the change in corporate structure which occurred on July 1 . Accordingly , we evaluate
the respondent's conduct in the light of Maney 's acts and statements prior to July 1, 1944,
in determining whether the respondent engaged in unfair labor practices on and after that
date as charged in the complaint . However, we make no finding herein that the respondent
engaged in any unfair labor practice by reason of conduct on the part of Haney antedating
July 1, 1944.
' Ball placed this conversation as having taken place during the latter part of June.
Maney testified that it occurred in June or July, or about 3 or 4 weeks prior to a second
conversation which took place on August 18. we find, as did the Trial Examiner, that
the conversation occurred in July.
8 Although Hulme placed the conversation as having occurred in June , Maney testified
that it took place in July , and we accept his testimony as to the date of the conversation,
as did the Trial Examiner
BARLOW-MANEY LABORATORIES, INC. 933
the matter of union organization. According to Hulme, Maney asked
her whether she was dissatisfied with her work, stating that he was
"very much surprised" to have heard that she had attended a union
meeting. Maney then asked her, according to Hulme's testimony, how
she would like to see at the respondent's plant a strike similar to one
then current at a drug-manufacturing plant in Philadelphia, and
declared that, if the Union succeeded in organizing the respondent's
plant, the respondent would no longer be able to give her an extra
pay check that she was then receiving .9 A week later, according to
Hulme, Maney again approached her, handed her a newspaper clip-
ping containing an article attacking the C. I. O. on the ground
that it was radical, and asked her for her opinion of the article, saying,
"See what Lawrence says about Communists." Hulme further testi-
fied that on August 10, 1944, when Maney informed Hulme that he
would have to lay her off, Maney again mentioned the subject of
unions and stated that the respondent was not making "horse shoes or
nails"; that "they couldn't have a union in there telling them who to
hire and who not to fire"; that "Parks-Davis were in quite a mess with
their strike"; and that the respondent "didn't want anything like that."
Maney, in his testimony, denied telling Hulme that recognition of the
Union would result in cessation of Hulme's extra check. He ad-
mitted, however, having made substantially the other remarks attrib-
uted to him by Hulme on each occasion, although he testified that, in
addition, he had stated to Hulme that the respondent was neutral with
respect to the Union. We find Hulme to be a credible witness and that
Maney made, in substance, the statements attributed to him by Hulme.
In August 1944, according to employee Ball's uncontradicted testi-
mony, she was approached by Ralph Moore, foreman of the tablet
department, who stated that Hobbie, the Union's organizer, was "the
fellow that started all the trouble at the Newton Maytag plant, and
that that trouble there had ruined the plant . . ."; she further tes-
tified that on another occasion Moore stated to her that he did not think
that that trouble there had ruined the plant . . ."; she further tes-
tified that Moore told Ball that Maney had "sworn" that he would quit
if the Union "came in," and that he, Moore, was thinking of doing the
same thing. Moore admitted in his testimony that he might have said
that he would quit, but denied saying that Maney would do so. He did
not otherwise contradict Ball's testimony. We find that Moore made,
in substance, the statements attributed to him by Ball.
On the morning of August 10, 1944, a small group of employees
who were opposed to the Union met in an office shared by Foreman
9 On March 1944, Maney, to dissuade Hulme from quitting her employment, offered to
pay her $ 5 per week in addition to her regular wages This amount , ostensibly to reim-
burse her for traveling expenses from Iowa City, where she lived, to Cedar Rapids, was
thereafter paid Hulme weekly by separate check
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore,,and Lillian Brazda, a plant clerical employee, and planned a
larger meeting of employees to be held during the afternoon of the
same day. Although employees observed Moore and Maney entering
the tablet room office during the time when the group was assembled,
the employees who comprised the planning group testified that neither
Moore nor Maney participated in their discussion, and Moore and
Maney testified that they were not aware that a discussion concerning
the Union was in progress in the tablet office on the morning of August
10. In preparation for the afternoon meeting, Ada Simkavitz 10
typed the following declaration, referred to in the record and herein-
after as "the petition."
We the Undersigned Employees of the Barlow-Maney Labora-
tories wish to state that we are not interested in a union
organization.
Simkavitz circulated the "petition" among employees at the planned
meeting which was held during working hours on the afternoon of
August 10 in the finishing room, and attended by 20 to 25 employees,
most of whom were opposed to the Union. Frances Heicksen, f ore-
lady of the finishing room, attended the meeting. Although Moore
did not attend the afternoon meeting, he admitted in his testimony
that he was aware that it was In progress, and that it lasted for about
30 minutes. Employees who attended it were not docked in their
wages. Several witnesses testified that it was customary in the plant
for groups of employees to congregate to discuss problems during
working time, but they admitted that no previous meeting had been
attended by so many employees, nor had one lasted so long "
After the meeting, Simkavitz and Brazda circulated the "petition"
among the employees generally. Among the employees who signed
the "petition" were Forelady Heicksen, Foreman Moore, and Louis
Smejkal, foreman of pharmaceutical manufacturing 12
In view of the fact that the respondent's plant was small and, as
the record discloses, Maney, a5 an officer of the respondent in charge
10 Simkavitz had been employed by the Shores Company as forelady of the finishing
department ; after July 1, 1944 , she was a clerical worker in the respondent's general
office.
11 Several witnesses testified that the afternoon meeting lasted more than an hour.
1z The respondent contends that it is not responsible for the activities of Heicksen , Moore,
and Smejkal , asserting ( 1) that they do not possess supervisory authority ; and (2) that
they were members of the unit described as appropriate in the consent -election agreement
hereinabove referred to The record discloses that they are in charge of their respective
departments , and that although they do not have authority to hire , promote , transfer, or
discharge employees , their opinions are solicited by Maney as to the quality of the work
of ordinary employees in their respective departments , and such employees have made
requests for raises in pay to them with success . We find that Heicksen , Moore, and
Smejkal are supervisory employees and that the respondent is responsible for their con-
duct we are not persuaded that the Union 's consent to accept these supervisory em-
ployees as members of an appropriate unit for representation alters the respondent's
responsibility for their actions , particularly since the record discloses a close working rela-
tionship between the supervisors and other anti -union employees , on the one hand, and
Maney, on the other , in the anti -union campaign
BARLOW-MANEY LABORATORIES, INC. 935
of production, was well informed generally as to employee activities,
including those in opposition to as well as on behalf of the Union,
it is reasonable to conclude under all the circumstances that Maney
had knowledge of the meetings of August 10, and of their purpose.
We therefore find that the respondent, through Maney and the lesser
supervisors, had knowledge of the purpose of the meetings and ap-
proved of and encouraged the holding of the meetings.
Employee Ida Hartz testified that on or about August 13, 1944,
Maney called her to his office and asked why she had not signed the
"petition." When Hartz asked, in reply, if she was required to sign it,
Maney stated, according to Harts' testimony, that she was not, but
that the "petition" was the respondent's "way of finding how the em-
ployees stood with the Company," and that it "wasn't any more bind-
ing" than if she "had signed a union card." Ball testified that on
August 18, 1944, Maney called Ball to his office and asked her why she
had not signed the "petition" which had been circulated on August
10. Maney stated, according to Ball, that the "petition" had been
circulated so that the respondent might have "an idea of how many
people were loyal to the company." Ball further testified that in the
conversation between Maney and herself on August 18, Maney stated
that Ball was "confused and that he wished to get a few things
straigtened out"; that with reference to the prospective election at
which Ball had been selected as an observer' for the Union, Maney
suggested that Pollack, a research chemist, should have been chosen
rather than Ball; and that Moore, Ball's foreman, had once saved
her job for her, and that she "owed it to Mr. Moore to be loyal to the
company's side." During the course of the conversation, according to
Ball's testimony, Maney asserted that unions might be "all right" in a
larger plant but they were not suited to the respondent's plant, and
that John L. Lewis, Sidney Hillman, Phillip Murray, and Earl Brow-
der were "communistic."
Maney's description of the August 18 conversation with Ball is sub-
stantially in accord with Ball's testimony, except that with reference
to the testimony of both Ball and Hartz, he testified that he had not
seen the "petition" at any time before the hearing, and denied that
he had questioned any employee about failure to sign it. We find that
in August 1944, Maney made, in substance, the statements attributed
to him by Hartz and Ball, including inquiries concerning the failure
of these two employees to sign the "petition" as well as the statements
with respect to the purpose of the "petition." We further find that
the respondent had knowledge of the circulation of the "petition" and
that it assisted and encouraged its circulation among the employees.
. In June 1944, ,the Union had received a number of postal cards
signed by various employees and reading as follows :
I
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Please take my name off your mailing list as I am not interested
in obtaining your literature.
On August 19, the Union received another batch of cards similar in
wording to the first series, most of which included a postscript reading :
The paper shortage is critical. Why waste it? There is a war
going on, you know.
Upon receipt of the second series of cards, by letter to the Board, the
Union requested that its Petition for Investigation and Certification
of Representatives be withdrawn, giving as one reason for so doing,
that the respondent had inspired the issuance of the cards. On Sep-
tember 5, the Union filed its first amended charge alleging the issuance
of the cards as an additional unfair labor practice.
Lillian Brazda, called as a witness by the respondent, testified that
she furnished the postal cards and typed some of them in the tablet
room and some in the finishing room, and that she thereafter gave them
to employees for signature and mailing. Ida Hartz testified that in
June she had a conversation with Moore concerning the Union in
which Moore told her that he had heard it "rumored that there were
cards furnished by the Company in regards to those that didn't want
to hear about the union or to have mail being sent them." Moore
denied that he mentioned the cards to any employee. Maney learned
of the existence of the cards from Moore a day or so after they had
been mailed.13 Although it may be inferred from the respondent's
general attitude with respect to the Union that the respondent ap-
proved the sending of the cards in the sense that such course accorded
with the respondent's objective, we are not convinced by the record
that the respondent inspired the sending of the cards or gave to that
project active support.
We find that by questioning its employees concerning their union
membership and activities, by making statements hostile to the Union,
by approving and permitting anti-union meetings to be held in the
plant during working hours, by approving and permitting the circu-
lation of the petition opposing the Union in the plant during working
hours, and by threatening that union organization would result in
economic loss to employees, as found above, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The discriminatory discharge of Harold Schroeder
Schroeder began work for the Shores Company in 1933 or 1934, as
an employee in the feed department. In 1937 or 1938, he was trans-
13 Maney stated that he knew of only one group of cards that had been mailed, but did
not specify which group.
BARLOW-MANEY LABORATORIES, INC. 937
(erred to the tablet manufacturing department as a tablet coater under
the supervision of Moore. About a year before his discharge, he was
named as an assistant to Moore and was put in charge of the coating
loom with one employee under his direction. On one occasion during
the winter of 1943, when a night shift consisting of five employees was
temporarily installed, Schroeder was put in charge of the shift.
On May 15, 1944, when a group of Shores Company employees re-
quired a meeting place to discuss an employee grievance, Schroeder
invited the group to his home. As a result of a discussion concerning
grievances, the group determined to organize, and Schroeder, on be-
half of the employees, visited Charles Hobbie, a union representative,
to obtain information necessary for organizing. Hobbie suggested
that a meeting be held at which he would speak to the employees.
Schroeder relayed the suggestion to the employees, and the suggested
meeting was held in Hobbie's office on May 29. During the month of
June 1944, Schroeder distributed application-for-membership cards
to employees, encouraged them to join the Union, and discussed with
them methods of influencing other employees to join the Union. Be-
cause he was working on the night shift, Schroeder was unable to at-
tend more than two meetings of the Union, but in his absence, he was
elected temporary chairman of the organization 14
According to Schroeder, sometime in June 1944, a few days after
Schroeder was elected temporary chairman of the Union, he was called
into Maney's office where a conversation between Maney and Schroeder
ensued, which Schroeder described as follows :
Well, he asked me if it was true that I was the one who had con-
tacted the union, and I told him yes, that I had, and he asked me if
I was taking an active part in the organization, and I said I was,
and the statement was made that unions had never done any other
companies any good, or the employees 15 and I told him that I
thought that an organization would stop some of the irritation in
the plant where they could have a representative instead of argu-
ing among themselves, and Mr. Maney asked me if I wasn't satis-
fied with my work and my job, and I told him yes, that I had
always been, and he asked me if the company hadn't always given
me a square deal, and I told him they had; and, I told him perhaps
the best thing to do maybe would be to give me my release. And,
he said that I would be foolish to throw away eleven years of
experience to change to another new type of job; but he said if I
really wanted my release, that he would give it to me, and I told
14 The foregoing findings are based upon uncontradicted testimony of Schroeder, whom
we credit.
11 Schroeder later corrected this portion of his testimony and as corrected attributed the
statement "that unions had never done any other companies any good, or the employees"
to Wright, then vice president and secretary of the Shores Company.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that perhaps I would be foolish to throw away eleven years,
and probably it would be best for me to stay. Mr. Maney said at
the time that he knew that I was the leader of the organization
because I was the only one in the plant that was a leader, and the
employees would follow . . . [and] he stated that he knew I was
chairman, had been elected temporary chairman.
In his testimony Maney gave a different version of the conversation, as
hereinafter more fully set forth, but did not specifically deny that he
made the statements relating to Schroeder's union activities; indeed,
Maney admitted that on at least one occasion he discussed the Union
with Schroeder in the course of conversations between them. Maney
testified concerning a conversation between Maney and Schroeder in
June 1944, in which Schroeder had suggested that he be released and
Maney had dissuaded Schroeder from quitting his job. According to
Maney, however, in the conversation they discussed Schroeder"s mental
health and it was that subject which provoked Schroeder's request for
release. According to Maney, Schroeder had evidenced symptoms of
a bad "mental state" during two conversations with Maney, the first in
the early part of June when he had requested Schroeder to work on a
temporary night shift. Schroeder had then reluctantly accepted the
assignment, according to Maney, after stating that, perhaps he,
Schroeder, should "make a change." 16 The second conversation took
place about 2 weeks before Schroeder's discharge, according to Maney,
when Schroeder was called to Malley's office and was told by Maney
that he was concerned about Schroeder. According to Maney's testi-
mony, Schroeder thereupon acknowledged that he did not feel in the
best of health 'and had difficulty in eating and sleeping. Maney fur-
ther testified that he then diagnosed Schroeder's trouble as being "men-
tal" and stated that, if Schroeder maintained the same "mental state,"
it would be necessary for Maney to intervene and insist that Schroeder
regain a "normal status," whereupon, according to Maney, Schroeder
suggested that he be released. Although Schroeder did not testify
concerning his health during the sumnier of 1944, under the circum-
stances, we credit Schroeder's version of his conversations with Maney.
We therefore find that Maney discussed Schroeder's union activities
with him as testified to by Schroeder ; that they discussed the matter of
a release for Schroeder as described in Schroeder's testimony; that
there was no mention of the state of Schroeder's health in any conversa-
tion between them; and that Schroeder had requested a transfer to the
plant machine shop from Maney.
On July 1, a Saturday, the day on which the respondent first began
operations, according to Schroeder's uncontradicted testimony which
36 Schroeder testified that he was interested in becoming a machinist and that in June
he had suggested to Wright and to Maney that he , Schroeder , would like to "make a change"
to the plant ' s machine shop This testimony was not specifically denied. We credit it
BARLOW-MANEY LABORATORIES, INC. 939
-«e credit, Maney told Schroeder that Moore was taking a week's
vacation beginning on July 5, and that Schroeder would, as he had
done previously, perform Moore's functions during his absence. The
plant was closed from July 2 to July 5. On July 5, Schroeder
reported at the plant and began setting up work for the employees
in the tablet department. Shortly thereafter, Moore appeared, and,
in response to an expression of surprise by Schroeder that Moore had
not gone on his vacation, according to Schroeder's undenied testimony
which we credit, Moore stated that he had returned to the plant to
inspect "some new work benches." About an hour later, Moore in-
structed Schroeder to report to Maney. In the presence of Wright, an
officer of Barlow-Wright and Shores Company, according to Schroe-
der, Maney told Schroeder that he had asked for a release on several
previous occasions and that the respondent thought that it would be
to Schroeder's advantage that he be released because his capacities
were beyond what the respondent had to offer. Maney testified that
he told Schroeder, on this occasion, that it was necessary for reasons
of economy to release either Schroeder or Moore, both of whom were
experienced coaters; that Schroeder no longer had the status of a
foreman ; and that he was being selected for discharge because, in view
of his pay rate of 90 cents an hour, he was "rather a heavy burden on
the pay roll." Wright testified as to this conversation substantially
the same as did Schroeder and Maney. We find that the conversation
of July 5 occurred substantially as described by Schroeder, Maney,
and Wright. I
Ma.ney's decision to discharge Schroeder had been made on July 1,
following a conference with Barlow. In the course of the conference,
Barlow had expressed the opinion, according to Maney, that Schroe-
der's job appeared to be "extraneous" because the Shores Company
had previously had but one foreman in the tablet department and
that Schroeder's job was an expense which might be curtailed "par-
ticularly in view of the fact that [Barlow] was posted on the matter
of [Schroeder's] mental state." Maney testified that he did not
consider transferring Schroeder to the machine shop, in accordance
with his request, because Maney was of the opinion that Schroeder
would not remain satisfied in the machine shop.'' No employee other
than Schroeder was laid off or discharged when, on July 1, the re-
spondent began operations.18
"There is no basis in the record other than Maney 's statement for his alleged conclu-
sion that Schroeder would not have been satisfied with a job in the respondent 's machine
shop
" This finding is based on the testimony of Maney that he did not recall any "specific
example " of any other employee discharged or laid off around the time that Schroeder
was released , but that it was "possible ," that there were others The respondent does
not contend that any employee other than Schroeder was discharged or laid off in July
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
The respondent asserts that it terminated Schroeder's employment
primarily for purposes of economy, and secondarily, because Schroe-
der had requested his release and was suffering a "bad mental state."
It is clear from the record, including Maney's admissions, that the
respondent believed that the success of its newly formed organization
was threatened by the advent of the Union. More particularly, the
respondent's concern with the union affiliation of its employees was
demonstrated by its frequent questioning of employees, including
Schroeder, respecting the Union and their membership therein; and
by statements to employees, among others, (1) that the Union was
not the "proper" organization to represent them; (2) that the C. I. O.'s
officers were "communistic"; (00) that its local organizer had been
responsible for closing another plant; and (4) that, if the Union
successfully organized the respondent's plant, Maney and Moore would
resign. It is also clear that the respondent's officials, particularly
Maney, attributed alleged "strife" in the respondent's plant to the
Union, and identified whatever dissatisfaction Schroeder may have
had with his job with his activities as the Union's principal propo-
nent. In brief, Schroeder's union activity was, to the respondent,
symbolic of dissatisfaction and of a disturbed mental state. It is
noteworthy, in this connection, that Schroeder's alleged mental insta-
bility either did not come into existence or was not criticized by Maney
or Barlow until the advent of union organization of the employees.
Indeed, we are convinced and find that Schroeder's mental health was
not impaired and that he was not discharged because of ill health.
The respondent's asserted defense that it released Schroeder "at
his own request" is also without merit. The only occasion when a
release was mentioned by Schroeder was in a conversation in which
Maney had asked Schroeder whether he was taking an active part
in union organization and in which Maney had evidenced opposition
to the Union. Schroeder's reply, quoted above, that "maybe I had
better have my release," was not, in the context described, a request
that he be released.
The respondent also contends that Schroeder was discharged as a
measure of financial retrenchment and that his discharge was a neces-
sary economy because Schroeder was "extraneous" to the tablet de-
partment. Aside from mere assertion, there is no evidence that
the respondent was faced with a need to retrench financially or that
Schroeder's services were not needed by the respondent. He had
been in the employ of the Shores Company for 10 or 11 years prior
to his discharge. He was an experienced coater and was employed
as a coater, not as a full-fledged foreman, at the time of his discharge.
Since discontinuance of the night shift early in June, Schroeder
acted as a substitute for Foreman Moore in his absence, as had been
BARLOW-MANEY LABORATORIES, INC. 941
the practice prior to the institution of the temporary night shift, a
fact which indicates that he was recognized as a capable and trusted
employee . No reason existed why Schroeder could not have con-
tinued in the respondent 's employ in the same capacity as that in
which he was serving at the time of the corporate reorganization.
In any event , Schroeder had requested transfer to the machine shop
where, so far as appears, his services would not have been "extrane-
ous." Under the circumstances , and particularly in view of the
fact that Schroeder was the only employee selected for discharge
when the respondent began operations , we are convinced that the
respondent did not discharge Schroeder for purposes of economy
unconnected with his union activities.
We find that the respondent discharged Harold Schroeder on July
5, 1944, and thereafter refused to reinstate him, because he joined
and assisted the Union , and thus discriminated in regard to his hire
and tenure of employment , thereby discouraging membership in the
Union ; and that, by his discharge , the respondent interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. The alleged refusal to bargain
On July 31, 1944, in a letter to the respondent, the Union requested
recognition as bargaining representative in a unit consisting of "all
employees employed in the Barlow-Maney Division who punch time
cards and who perform production and maintenance work, exclud-
ing members of management, full-time office clerical employees and
supervisors above the rank of working foreman." 19 On August 4, the
respondent replied that it had a doubt as to the Union's alleged
majority and that it could not agree that the unit requested by the
Union was appropriate. On August 9, the Union filed a Petition
for Investigation and Certification of Representatives in which it
asserted as appropriate the unit described in its letter of July 31.
On August 11, the respondent and the Union entered into a consent-
election agreement in which the appropriate unit was described as
including all employees of the respondent except Barlow and Maney.
Thereafter, on August 19, the Union withdrew its petition of August
9 and its consent to the election under conditions hereinabove de-
scribed; and, on September 5, without making a fresh demand for
collective bargaining, the Union filed a charge in which it alleged
that the respondent had refused to bargain within the meaning of
Section 8 (5) of the Act, and described the appropriate unit as con-
's In this unit , consisting of 40 employees, Including Schroeder , the Union had authoriza-
tions from 20 employees as of August 1, 1944. No additional authorizations were obtained
by the Union after August 1.
0
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sisting of "all production and maintenance employees of the Com-
pany, excluding executives, supervisors, and clerical workers."
The complaint alleges that the respondent refused to bargain with
respect to an appropriate unit consisting of "all production and main-
tenance employees employed by the respondent at the plant, but ex-
cluding office and clerical employees and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such
action." The respondent contends that such unit is inappropriate in
that office and clerical employees and working supervisors, other than
the respondent's executives, should be included in the unit.
It will be noted that the Union has asked for or acceded to at least
three different units prior to the issuance of the complaint, and that
the respondent has consistently maintained that only a unit which in-
cludes all employees other than Barlow and Maney is appropriate.
The units desired by the Union, other than that agreed to in the consent-
election agreement, would have excluded office clerical employees. The
Union and Board counsel contend that these employees should be ex-
cluded from the appropriate unit because clerical workers do not have
interests in common with production and maintenance workers. The
respondent contends that its clerical employees do have interests in
common with such manual workers, and that they should, therefore, be
represented in a common unit with them. The record discloses that
five of the six office clericals were formerly production workers, and
that they are expected to help in production departments whenever
their services are needed. The Union acceded in effect to that conten-
tion in the consent-election agreement, but when it filed its charge,
after having withdrawn its consent to the election, it described as ap-
propriate a unit which excluded not only office clericals, but also plant
clericals and working foremen. The Union and Board counsel contend
that the plant clericals are more closely allied with office clerical
workers than with production and maintenance employees, and that the
working foremen fall within the Board's definition of excludable
supervisory employees. There are two plant clerks. They have head-
quarters at desks in the production departments of the plant. Their
duties are a combination of clerical work and manual work; they asso-
ciate in the performance of their duties predominately with production
workers. The foremen work along with the ordinary workers in their
departments, laying out work for those employees, instructing them,
and assigning their work. They have no authority to hire, promote,
discharge, or discipline, but their opinions are solicited by Maney as to
quality of the work of persons in their respective departments, and
ordinary employees successfully have made requests for pay raises to
them. However, in its letter of July 31, the Union had requested the
BARLOW-MANEY LABORATORIES, INC. 943
respondent to bargain with respect to a unit which included in effect
such working foremen and plant clericals.
Irrespective of the propriety of including such supervisors in the
unit, however, there is a defect in the complainant's case which makes
it unnecessary to pass directly upon the question of the appropriate-
ness of the unit proposed by the Union. It will be noted that even
under the computation most favorable to it, the Union never repre-
sented more than half the employees in either the unit described in its
request for bargaining rights in its letter of July 31, 1944, or in the
unit for which the Union petitioned on August 9, 1944. • Moreover, in
the unit which the Union conceded to be appropriate in the consent
election stipulation of August 11, 1944 (a larger group), it also rep-
resented less than one-half, because at no time after its request for
recognition did the Union possess authorizations from more than 20
employees.
The Trial Examiner's later finding that the Union did represent a
majority in an appropriate bargaining unit is based upon a revision
of the unit, after excluding certain occupational categories which the
Union sought to represent. Assuming that the unit as defined ex post
facto in the Trial Examiner's findings could be deemed an appropriate
one, and further assuming that the majority of the employees included
therein had given authorization cards to the Union, the record fails
to show that the Union ever requested the employer to recognize it as
the bargaining representative of such a group. Because a prior ap-
propriate request for bargaining is a condition precedent to any find-
ing of a refusal to bargain,20 we think the Trial Examiner erred in
finding a violation of Section 8 (5) in this case.
In reversing the Trial Examiner on this point, we have not been
unmindful of the vigorous arguments embodied in the dissenting
opinion of our colleague. Briefly summarized, his point seems to be
that if an employer is guilty of other unfair labor practices, he should
be presumed to be acting in bad faith whenever he raises a question as
to the appropriateness of a unit which a labor organization seeks to
represent as the bargaining agent. He therefore concludes that even
though the Union has no majority in the claimed unit, such an em-
ployer should be found guilty of a violation of Section 8 (5), if by some
subsequent reduction of the unit a majority for the Union can be
deducted.
It is with this latter conclusion that we disagree. It seems to over-
look the fact that in order to make out a case of refusal to bargain,
the Board must show that the Union in fact represented a majority
at the time the request was made. The employer's obligation arises
as of that time, not as of the time that a Trial Examiner, or the Board,
20 N. L. R. B. v. Columbian Enameling & Stamping Co., 306 U. S. 292.
679100-46-vol. 65-61
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finds a different unit appropriate; it should be measured against the-
unit claimed to be appropriate at that time. In this case, unlike the
hypothetical example stressed in the dissent, the Union never did
represent "a majority in the unit for which it requested bargaining
rights." That is the point, and that, is why the example does not
establish any defect in our view. This Board, being mindful of the
rights of all the employees in a proposed unit, has held it to be an un-
fair labor practice for an employer to give exclusive recognition to
a union not representing a majority.21 It is difficult to see how the
refusal of a request can be unlawful when granting the same request
might ultimately result in an unfair labor practice proceeding.22
By this we do not mean that this Board, in reviewing the record in
a complaint case, may not sustain an' allegation based on Section 8
(5) and yet make minor variations in the unit originally proposed
by the charging labor organization. But we are unaware of any
principle of law under which a labor organization can be relieved
of the requirement that it must possess a majority in the unit assumed
to be correct at the time of the very request the denial of which is
charged as illegal. Such a requirement does not place upon a labor
organization any "standard of care in draftsmanship which rivals
that required of the experts," but merely enough knowledge of arith-
metic to be in a position to state accurately that in the category of
employees which it describes as a bargaining unit, it possesses author-
izations from a majority of those described.23
In view of the foregoing, we need not consider whether the doubt
expressed by this respondent, with respect to the Union's questionable
majority status or the appropriateness of the bargaining unit was
21 Matter of Ken-Rad Tube and Lamp Corporation , 62 N L R B 21; see also Virginian
nil Co v . System Federation No 40, 300 U. S 515, 548 , where in dealing with the duty
of an employer to bargain with the majority representative under the Railway Labor Act,
the Supreme Court stated , "It [the Act] imposes the affirmative duty to treat outs wih
the true representative, and hence the negative duty to treat with no other."
The record shows that the proposed unit for which bargaining rights were sought in-
cluded several supcivisorv employees, so that there was more than a mere technical defect
in the unit sought This is not the crucial factor in our view , however
22 So far as we have been able to ascertain from examination of the authorities , the pre-
cise question at issue has not hitherto been passed upon , although the reasoning of this
decision is implicit in one of the published cases Our colleague 's opinion seems to imply
that we are departing from precedent in dismissing the complaint because of the inclusion
of three or four inappropriate employees in the bargaining unit originally proposed by the
Union As the text of our decision ideals, ne do not'rest upon this factor, but rather
upon the Union's lack of majority among the very *group in which it made an allegation
of majority status to the employer Matter of Trojan Powder Company, 41 N L. R B
1308, 1320 • the complaint alleged that respondent company had refused to bargain with
a labor organization which represented a majority of the employees in a unit of produc-
tion and maintenance employees , excluding , later alia, watchmen -guards . The Board re-
versed the Trial Examiner ' s finding that such it unit was appropriate and included watch-
men-guards in the appropriate unit-a unit in which the Union was unable to establish its
majority status The Board said: "While the Union now contends that the watchmen-
guaeds should not be included in the unit, it did not seek to exclude them at the time
it sought to bargain with the respondent , nor at the time it filed its original charges
herein . . . Its field representative considered them eligible for membership in the
Union and sought to organize them."
BARLOW-MANEY LABORATORIES, INC. 945
advanced in good faith. Accordingly, we shall dismiss the complaint
herein, insofar as it alleges that the respondent unlawfully refused
to bargain with the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the respondent's operations 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 certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
We have found that the respondent, on July 5, 1944, discriminated
against Harold Schroeder by discharging him. We shall therefore
order that the respondent offer Harold Schroeder immediate and full
reinstatement. to his former or substantially equivalent employment
without prejudice to his seniority or other rights and privileges, and
snake him whole for any loss of pay that he may have suffered by
reason of the respondent's discrimination against him by payment
to him of a sum of money equal to the amount which he would have
earned as wages from the date of his discharge to the date of the
respondent's offer of reinstatement, less his net earnings during said
period.24
Having found that the respondent engaged in certain conduct viola-
tive of the Act, we shall order the-respondent to cease and desist there-
from and, for the following reasons' from in any other manner inter-
fering with, restraining, and coercing its employees in the exercise of
the rights guaranteed i n Section 7 of the Act. The respondent's whole
course of conduct discloses a purpose to defeat self-organization among
its employees. As we have found, since the inception of the Union in
the respondent's plant, the respondent interfered with, restrained, and
coerced its employees by various acts and statements. Moreover, the
' By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L R. B. 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings . See Republic Steel Corporation v N. L R. B., 311 U. S. 7.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination against Schroeder,"goes to the very heart of the Act." 25
Because of the respondent 's unlawful conduct and its underlying pur-
pose, we are convinced that the unfair labor practices found are persua-
sively related to the other unfair labor practices hereinafter proscribed
and that danger of their commission in the future is to be anticipated
from the respondent 's conduct in the past .21, The preventive purpose
of the Act will be thwarted unless our order is coextensive with the
threat. In order, therefore , to Inake more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices , and thereby minimize industrial strife which burdens and
obstructs commerce and thus effectuate the policies of the Act, we shall
order the respondent to cease and desist from ihi any manner infringing
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board . makes the following :
CONCLUSIONS OF LAW
1. United Farm Equipment and Metal Workers of America, affili-
ated with the Congress of Industrial Organizations , is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Harold Schroeder , thereby discouraging membership in United
Farm Equipment and Metal Workers of America , the respondent
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
5. By discharging Helen Hulnie the respondent has not engaged in
any unfair labor practice within the meaning of Section 8 (3) of
the Act.
6. By refusing to bargain with the Union , the respondent has
not engaged in any unfair labor practice within the meaning of Sec-
tion 8 (5) of the Act.
=6N L R B v. Entuwltie Manufaeturiny Company , 120 F ( 2d) 532 , 536 (C C A 4)
see also , N L R B v Automotive, Maintenance Machinery Company, 116 F. ( 2d) 350,
353 (C . C A 7), where the Circuit Court of Appeals for the Seventh Circuit observed*
"No more effective foam of intimidation nor one more violative of the N L R. Act can be
conceived than discharge of an employee because he joined a union . .11
21 N L R B v Express Publishing Company, 312 l7 S 426 . May Department Stores
v N L R P. , 66 Sup Ct 203
BARLOW-MANEY LABORATORIES, INC. 947
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Barlow-Haney Laboratories, Inc., Cedar Rapids,
Iowa, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in United Farm Equipment and
Metal Workers of America, C. I. 0., or any other labor organization
of its employees, by discharging or refusing to reinstate any of its
employees or by discriminating in any other manner in regard to
hire or tenure of employment, or any term or condition of employ-
ment ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Farm Equipment and
Metal Workers of America, C. I. 0., or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Harold Schroeder immediate and full reinstatement
to his former or substantially equivalent position., without prejudice
to his seniority or other rights and privileges;
(b) Make whole Harold Schroeder for any loss of pay that he may
have suffered by reason of the respondent's discrimination against
him by payment to him of a suns of money equal to that which he
normally would have earned as wages during the period from July
5, 1944, the date of his discharge, to the date of the respondents offer
of reinstatement, less his net earnings during such period;
(c) Post immediately in its plant at Cedar Rapids, Iowa, copies
of the notice attached hereto, marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Eighteenth
Region, shall, after being duly signed by the respondent's representa-
tive; be posted by the respondent immediately upon receipt thereof, and
maintained by it for a period of sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced,
or covered by any other material;
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify,the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discriminated in regard to the hire and tenure of em-
ployment of Helen Hulme within the meaning of Section 8 (3) of
the Act, and insofar as it alleges that the respondent refused to bar-
gain with the Union within the meaning of Section 8 (5) of the
Act, be, and it hereby is, dismissed,.'
MR. JOHN M. HousTON dissenting, in part :
I cannot agree with that portion of my colleagues' decision which
dismisses the complaint insofar as it alleges that the respondent ille-
gally refused to bargain with the Union. In my judgment, the record
shows that the respondent rejected the whole principle of collective
bargaining, and by its conduct which my colleagues and I agree, "dis-
closes a purpose to defeat self-organization among its employees," ex-
pressed a fixed determination not to bargain with this Union.
In his Intermediate Report the Trial Examiner found that, at the
time the Union made its request of the respondent to bargain, it repre-
sented a majority of the respondent's employees in an appropriate
unit, that the respondent's doubt as to the appropriateness of the unit
was not advanced in good faith in view of the unfair labor practices
in which the respondent was then engaging, and that therefore the,
respondent's refusal to bargain with the Union constituted a violation
of Section 8 (5) of the Act. The majority has reversed these findings
of the Trial Examiner and absolved the respondent upon the theory
that the Union did not hold authorizations from a majority of em-
ployees in the unit urged as appropriate in its request for bargaining.
In the light of this premise my colleagues have found it unnecessary
to pass upon the appropriateness of the unit requested and whether
,the respondent's doubt as to the unit was advanced in good, faith. I
cannot subscribe to this reasoning.
The Board has held that an employer will not be permitted to defend
a refusal to bargain on the ground that a Union has not made a request
in an appropriate unit when it is clear that such a request would be
futile." In this case the evidence of the respondent's unfair labor
_practices clearly indicates that a further request by the Union, after
its initial attempts to settle the question of recognition amicably had
failed, would have been rejected. That evidence shows a course of
conduct in which the respondent utilized threats of economic reprisal
and actual discharge to forestall the Union's efforts. In such circuin-
21 Of course, an initial request is necessary, a regmiement fully met by the Union here.
The repondent's contention is, however, that a further request was necessary. See Matter
of Schieber Millinery Co , 26 N. L. R. B . 937, 956 ; Matter of Riverside Manufacturing Co.,
20 N L R. B. 394, 407.
BARLOW-MANEY LABORATORIES , INC. 949
stances, the respondent 's motive iri refusing to bargain because of an
asserted doubt as to unit or majority status becomes of crucial im-
portance . I cannot understand , therefore , why it is unnecessary to
pass upon that question . In my opinion , this Board must determine
whether the respondent acted in good faith in its dealings with the
Union . Because this record , as I have said, conclusively proves the
respondent 's bad faith , and because the Union has a majority in an
appropriate unit,28 I would find that the respondent refused to bargain
in violation of Section 8 (5) of the Act.
But my colleagues ' position requires further comment. As I have
said, the majority has also found it unnecessary to pass upon the
appropriateness of the unit requested by the Union because the Union
did not disclose a majority status in that unit, although the majority
is willing to assume, arguendo, that the unit and majority findings
of the Trial Examiner are sound . The plain consequence of this
position is to place an unwarranted and formidable obstacle in the
path of any labor organization which seeks to invoke Section 8 (5)
against a recalcitrant employer. A simple example will suffice to
illustrate the defect in the majority's view. A ' labor organization
which proves that it represented a majority in the unit for which
it requested bargaining rights, nevertheless, in a complaint proceed-
ing involving Section 8 (5), would be barred, under our settled policy,
if this Board should exclude a fringe group of employees which it
considered did not belong in the unit, thus disclosing a lack of ma-
jority status. However, even if it should be able to, prove majority
status in the unit as revised by the Board, under my colleagues' view
its case would fall, because originally it had not requested recogni-
tion in an appropriate unit, a statutory condition precedent to in-
voking Section 8 (5). Thus, by the mistaken inclusion or exclusion
of perhaps one employee in connection with the unit originally re-
quested, a labor organization may forfeit its protection under Section
8 (5) of the Act if this Board, 6 months or a year later, should de-
termine that the inclusion or exclusion caused the requested unit to
be inappropriate. Labor organizations, in order to protect the em-
ployees they represent against such consequences, must now under-
take to define, with particularized nicety, the unit for which they
request an employer to bargain. They must employ a standard of
care in draftsmanship which rivals that required of the experts,
because an error in definition or description , whether by inadvertence,
28 The Trial Examiner excluded from the unit he found to be appropriate 3 supervisory
employees ( Moore, I3eickson , Smejkal ), 8 clerical employees ( including 2 plant clerks), and
3 students , making a total of 32 employees in such unit . He found that the Union held
designations from 20 of these employees . I would include the 2 plant clerks and the 3
students , a disposition with which I believe my colleagues would not disagree. There
would then be 37 employees in the unit I would find appropriate. Discounting the designa-
tion of Lillian Blood, who testified that she requested the return of her card shortly after
signing it, the Union held valid authorizations from 19 employees in the unit.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lack of skill, or simple ignorance of our substantial body of prece-
dent on unit questions, might penalize them at a later date when
this Board is called upon, in an unfair labor practice proceeding,
to determine whether the labor organization has met the require-
ments of Section 8 (5). In order to qualify under my colleagues'
view, representatives of labor organizations must now be prepared
to submit to an employer every possible combination of job classi-
fications, in an effort to arrive at a unit which this Board may later
find appropriate. And this constant juggling must be undertaken
even in circumstances such as disclosed by this record, which com-
pels the conclusion that the respondent would not have bargained
in any unit and regardless of the majority status of the Union.
Hitherto this Board has never insisted on such impractical rigid-
ity.29 If a labor organization defined the unit it sought to represent
with sufficient reasonableness, a deviation from the Board's doctrine
as to appropriateness was always corrected by the Board in its deci-
sion, and if a majority status was proved in the corrected unit, the
conditions precedent to invoking Section 8 (5) were considered to
be met.
And this was especially the case when an employer's doubt as to
the unit was asserted in bad faith.30 By my colleagues' decision
herein, the Board has impinged upon this salutary policy.
NOTICE To ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER
of the National Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, we hereby notify
our employees that :
WE WILL NOT in any manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist United
Farm Equipment and Metal Workers of America, C. I. 0., or
"The Columbian Enameling and Trojan Powder cases are not authority for the posi-
tion of the majority. In the former case, the Supreme Court held that "the Board's con-
clusion that respondent refused to bargain with the Union is without support, for the
reason that there is no evidence that the Union gave to the employer . . . any indica-
tion of its willingness to bargain . . " (306 U S 392 at page 298). In the Trojan
Powder case it is apparent that we announced no such rule as that enunciated by the
majority here . In that case the unit disposition of a number of employees was in dispute.
we held "It is clear that , whatever be the disposition of these employees, the Union did
not represent a majority . ; accordingly , we dismissed the allegation that 'the re-
spondent had refused to bargain ( 41 N L R B . 1308 , 1328). [Italics supplied.]
ao In the N L. R. B v. Boles Coleman Lumber Co., 98 F (2d) 18 (C C. A. 9), the Court
sustained a finding of the Board that an employer , who defended a refusal on the ground
that the unit was inappropriate, had violated Section 8 (5) of the Act even though the
Union had requested originally a unit later revised by the Board . Because the respondent
had engaged in other unfair labor practices designed to frustrate self-organization among
its employees , the Court stated that "The Board was entitled to draw the inference that
the respondent 's refusal to negotiate with the Union was motivated , not by doubt as to the
appropriate unit, but by a rejection of the collective bargaining principle."
BARLOW-MANEY LABORATORIES, INC. 951
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection.
WE WILL OFFER to the employees named below immedi-
ate and full reinstatement to their former or substantially equiv-
alent positions without prejudice to any seniority or other rights
and privileges previously enjoyed, and make them whole for
any loss of pay suffered as a result of the discrimination.
Harold Schroeder
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
BARLOW-MANEY LABORATORIES, INC.
(Employer)
bv--------------------------------
(Representative ) ( Title)
Dated--------------------
NOTE: Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.