Central Machine & Tool Co., Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1968

172 N.L.R.B. 1593 (N.L.R.B. 1968)

CENTRAL MACHINE & TOOL CO.
Central Machine & Tool Company , Inc. and Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO. Case 16-CA-3053
August 19, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS , AND ZAGORIA
On May 23, 1968, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions2 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
' Through a typographical error, the date Alexander picked up his tools
is shown as September 21 in section B, I and 2 of the Trial Examiner's
Decision The correct date is September I I
In finding that the Respondent violated Section 8(a)(3) of the Act, the
Trial Examiner states that Alexander did no work on the 14 axles shipped
between April 13 and 26 The record reflects that Alexander drilled one
axle on April 18 The decision is hereby corrected in this respect Addi-
tionally, the Respondent contends that five of the axles shipped during this
period were worked on prior to the fire of March 14 In the circumstances,
we do not deem it necessary to determine the exact number of axles which
Alexander could have worked on but did not The record and exhibits in
this regard are unclear Whethei 9, 13, or 14 axles were drilled by some-
one other than Alexander, the fact remains that work which Alexander
was capable of performing was done by someone else
As additional support for finding union animus, we take official notice of
our recent decision in a related case, Central Machine & Tool Works, 171
NLRB 1080, wherein the Respondent was found to have engaged in nu-
merous unfair labor practices
t We add to the Trial Examiner's recommended remedy our customary
provision Interest on backpay shall he computed in the manner set forth in
Isis Plumbing & Heating Co, 138 NLRB 716
172 NLRB No. 175
1593
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , Central Machine &
Tool Company, Inc., Enid, Oklahoma, its officers,
agents , successors, and assigns , shall take the action
set forth in the Trial Examiner 's Recommended
Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon
charges duly filed on July 12 and August 9, 1967,
by International Association of Machinists and
Aerospace Workers, AFL-CIO, hereinafter
referred to as the Union or Charging Party, the
General Counsel of the National Labor Relations
Board, hereinafter referred to as the General Coun-
sel,' and the Board respectively, by the Regional
Director for Region 16, Forth Worth, Texas, issued
its amended complaint dated December 8, 1967,
against Central Machine & Tool Company, Inc.,
hereinafter referred to as the Respondent. This
complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)( 1),
(3), and (5) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended,
herein referred to as the Act.
Respondent duly filed its answer admitting cer-
tain allegations of the complaint but denying the
commission of any unfair labor practices.
Pursuant to notice a hearing thereon was held in
Enid, Oklahoma, from January 15 to January 20,
1968, inclusive, before me. All parties appeared at
the hearing, were represented by counsel, and were
afforded full opportunity to be heard, to produce,
to examine, and to cross-examine witnesses, and to
introduce evidence material and pertinent to the is-
sues. At the conclusion of the hearing, oral argu-
ment was waived. Briefs were received from
General Counsel and Respondent on March 7,
1968.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and
I therefore find:
Central Machine & Tool Company, Inc., is, and
has been at all times material herein, a corporation
duly organized under and existing by virtue of the
laws of the State of Oklahoma, having its principal
' This term specifically includes the attorney appearing for the General
Counsel at the hearing
354-126 O-LT - 73 - pt. 2 - 29
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and place of business at 3005 N. Enid Bou-
levard in the city of Enid, Oklahoma, herein called
its plant , where it is engaged in the manufacture of
tools and couplings.
During the past 12 months, which period is
representative of all times material herein , Respon-
dent, in the course and conduct of its business
operations, purchased, transferred, and delivered to
its plant goods and materials valued in excess of
$50,000, which were transported to said plant
directly from States of the United States other than
the State of Oklahoma.
Accordingly I find that Respondent is now, and
has been at all times material herein, an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organiza-
tion admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal To Bargain
1. The appropriate unit
The complaint alleged , the answer admitted, and
I find that.
All production and maintenance employees, in-
cluding truckdrivers and regular part -time em-
ployees, but excluding office clerical employees,
professional and technical employees , guards,
watchmen , and supervisors as defined in the Act, as
amended , constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9 (b) of the Act.
2. The majority and certification
The complaint alleged, Respondent at the hear-
ing admitted, and I find that:
On March 15, 1967, a majority of the employees
of Respondent in the unit described above, by
secret ballot election conducted under the supervi-
sion of the Regional Director for Region 16 of the
National Labor Relations Board, designated and
selected the Union as their representative for the
purposes of collective bargaining with Respondent.
The Union was certified as such representative on
May 3, 1967.
3. The refusal to bargain
The complaint herein alleged that Respondent
' This ground was not alleged in the complaint but was fully litigated at
the hearing with a concurrence of Respondent's attorney
' Although this ballot issue arose originally at the session held on Oc-
tober 5, 1967, the issue was not pleaded in the complaint However, when
refused to bargain by: (I) Negotiating throughout
in bad faith; (2) dilatorily failing and refusing to
meet at reasonable times; (3) unilaterally granting
wage increases to unit employees on or about May
28, 1967, and again on January 12, 1968, while
purporting to negotiate wages with the Union; (4)
unilaterally withdrawing a quarterly bonus to unit
employees on July 6, 1967; (5) refusing the Union's
request for information regarding the unilateral
wage increases; and (6) conditioning the Union's
right to call a strike as the last step in the grievance
procedure upon "the issue must be fairly presented
to the membership of the bargaining unit after due
notice, and more than 50 percent of the members
of the bargaining unit authorized to strike. "2
In the light of the ultimate developments which
occurred in part during the instant hearing, it seems
a waste of time now to detail at any length the
proposals, counterproposals, arguments, and coun-
terarguments made in each of the 14 actual
negotiation meetings held between May 31, 1967,
and January 17, 1968, as was done during the
presentation of the testimony here.
Suffice it to say here that, in general, all major is-
sues between the parties on the terms of the con-
tract from the commencement of negotiations on
May 31, 1967, to January 16, 1968, remained un-
resolved due, in large measure, to Respondent's in-
sistence throughout that "all decisions are to be
made by management." Then, during the instant
hearing, a letter dated January 16, 1968, from
Respondent to the Union suddenly resolved all is-
sues but the ballot issue satisfactorily to both
parties. This sole remaining issue will be discussed
hereinafter.'
Respondent showed a definite propensity to
resort to dilatory tactics from the very commence-
ment of these negotiations. At the first negotiation
meeting on May 31, 1967, Respondent required the
Union to read its written proposals out loud word
by word over the Union's objection that said writ-
ten proposal had been given to Respondent on May
26 so that the reading of same was a waste of time.
In all it required four bargaining sessions on May
31 and June 5, 8, and 13 before the typed union
proposal was read orally in full to the satisfaction of
Respondent. Despite the Union's many requests for
his presence, Respondent's President Parrish did
not attend the negotiation sessions which on nu-
merous occasions gave Respondent's negotiators
the opportunity to delay decision until after having
consulted Parrish. Although Respondent's negotia-
tor Carter explained on June 5 that "when we get
down to serious business," he would have Parrish
present at the negotiations, Parrish never appeared.
Despite many requests therefor, Carter, Respon-
dent's negotiator, steadfastly refused to go into con-
tinuous negotiations or, in fact, to negotiate for any
General Counsel offered Respondent 's January 16 letter and the Union's
January 17 answer in evidence, Respondent 's attorney stated on the record
that, if the General Counsel had not offered the documents, he would have
Thus the issue was fully litigated at the hearing
CENTRAL MACHINE & TOOL CO. 1595
substantial length of time . In fact , only 2 of the 14
meetings which were actually held extended for as
long as 2 hours . Three negotiation sessions were
held in June , three in July , and thereafter no more
than two in any month through October, and in
November only one meeting . As early as the meet-
ing of July 26 Carter was saying that there was "no
need for any further meetings ." As the negotiations
extended over the months , Carter continued to in-
terrupt the sessions because of other business or so-
cial engagements even though the sessions ex-
tended only an hour or less. Carter also had to be
forced to agree upon a future date for the continua-
tion of negotiations as he preferred to have the
Union telephone him the week following the then
session and then set another date for such future
session . In addition to the 14 sessions actually held,
Respondent canceled , sometimes at the very last
minute , some 14 other scheduled meetings because
Carter was busy elsewhere , socially or otherwise.
Furthermore it took Carter more than a month
longer than he had agreed upon to prepare Respon-
dent's first counterproposal . Finally , after the ses-
sion of August 21, the record shows that the
Respondent canceled more scheduled meetings
than it attended . In fact these various dilatory prac-
tices , combined with the Respondent 's stated
theory that management was to make all the deci-
sions , made it quite clear that , at least until the in-
stant hearing began , Respondent was not at all in-
terested in arriving at a meeting of the minds on a
contract with the Union . I so find.
At the negotiation session held on July 19, 1967,
the Union proposed a 30-cent -per-hour across-the-
board wage increase . Respondent countered that it
could not afford any across -the-board increases but
hastened to add that it was not thereby pleading
poverty. Despite this refusal , however, Respondent
had granted wage increases in late May or early
June , after the negotiations had started, to a
number of selected employees on its own initiative
and without notice or bargaining about it with the
Union . In fact , it was some time after the wage in-
creases had actually been given that the Union first
learned of them . Again on January 12, 1968,
Respondent unilaterally increased wages of a
number of selected employees. On this latter occa-
sion Respondent wrote the Union on January 9 that
it was giving these unspecified wage increases but
failed and refused to confer with the Union in re-
gard thereto although requested to do so . When the
Union requested information as to the May-June
wage increases , Respondent refused the requested
information unless and until the Union gave
Respondent a list of its union members . With wages
then in negotiation , Respondent had no right to
make a trading point in this fashion. The Union was
entitled to the information it sought . A refusal to
give that information constituted a refusal to bar-
gain. During negotiations the unilateral grant of
such wage increases by Respondent without notice
to or consultation with the Union also constituted a
refusal to bargain . Such unilateral action was just
another example of the use of the Respondent's
precept that "all decisions are to be made by
management " and thus further evidence of Respon-
dent 's general bad faith throughout the negotia-
tions. I so find.
Then, as though to show the other side of the
coin , on July 6, 1967, Respondent announced that
it had discontinued its quarterly bonus payments to
unit employees . This also was unilateral action by
Respondent without notice to the Union or negotia-
tion with the Union in regard thereto while wages
were still an unresolved bargaining issue . Respon-
dent maintained that these quarterly bonus pay-
ments were "gifts" by Respondent to its employees.
However , the record shows that these quarterly
bonus payments had been paid regularly since June
30, 1965, and hence such payments had become,
by July 6, 1967, an accepted and integral portion of
the wages of the employees , especially as Parrish
himself had at Christmastime of 1966 informed the
employees that such quarterly payments would be
paid more promptly thereafter than had been done
in the past . This unilateral change without notice to
or negotiation with the Union constitutes a refusal
to bargain and is further evidence of Respondent's
bad faith during these negotiations.
At the August 21, 1967, meeting Carter handed
the Union a diagram purporting to show Respon-
dent 's new supervisory setup which indicated that
theretofore employees Long , Snow , Qualls, and
Kruckenberg had become supervisors . Until the
presentation of this new diagram , these four had
been acknowledged unit employees , albeit enjoying
some leadman qualities . The Union promptly ob-
jected that , by these alleged promotions at this
time , Respondent was attempting to remove unit
employees from the bargaining unit. One of the men,
Kruckenberg , had been a member of the Union's
negotiating team until the presentation of the dia-
gram . At the following meeting on September 11,
1967, Respondent objected to the presence of
Kruckenberg on the union negotiating team
because of his "supervisory " status.
The record proves that these were pure paper
promotions as the duties of none of those allegedly
promoted were changed in the least after the
promulgation of the diagram. It thus appears that
the so-called promotions were purely a move to
remove four men from the bargaining unit , perhaps
in anticipation of a strike caused by Respondent's
bargaining tactics which Respondent appearently
foresaw . The move was obviously made in order to
weaken the Union . It again indicates Respondent's
lack of good faith during the negotiations.
Early in the negotiations the grievance procedure
proposed by the Union was acceptable to the
Respondent up to the final step which was arbitra-
tion. Carter for Respondent stated that Parrish
would never agree to arbitration as he did not want
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any third person telling him how to run his com-
pany. Carter did agree that, in lieu of arbitration,
the Union would have the right to strike if it were
still dissatisfied after conferring with Parrish as
Respondent's proposed final step of the grievance
procedure. However, during the October 5 meet-
ing, Carter conditioned the Union's right to strike
at the end of the agreed-upon grievance procedure
upon a requirement that the Union could strike
only after a majority of all employees in the bar-
gaining unit , whether union or nonunion, voted af-
firmatively to strike. This condition the Union flatly
refused to agree to. The Union was adamant then
and is still adamant against this condition.
Although the parties reached many agreements
during this October 5 meeting , this proved to be the
next to last meeting between the parties. The last
meeting was held on November 21 in the absence
of Carter. Several more agreements were reached.
But Respondent still insisted that all unit employees
had to vote strike authorization before the Union
would be permitted to strike. The Union still
refused to accept this requirement. In addition the
Union was at the time objecting to the manage-
ment-rights clause which Respondent had
proposed. These two items were by this time the
major points of disagreement between the parties.
After November 21, there was considerable cor-
respondence between the parties but no further
face-to-face negotiations until the morning before
the instant hearing opened when their parties again
talked face to face which resulted in the Respon-
dent's letter dated January 16, 1968.
This counterproposal submitted by Carter in the
January 16 letter contained the following:
(w) Article XXIV-Grievance Procedure-
This will be in accordance with the Article
XXIV of the Company's counterproposal out-
lining the grievance procedure except the addi-
tion of paragraph 3. The first paragraph of the
procedure provides for the submission of a
grievance to the shop or union steward. The
second step provides for adjustment by the
shop foreman or a supervisor. The third step
provides for submission of a grievance if not
settled, to the Plant Manager or the President
of the Company. The fourth step will con-
stitute the remedy of the Union, in that it may
call a strike , providing that the issue is fairly
presented to the membership of the bargaining
unit after due notice, and more than 50% of
the members of the bargaining unit authorized
[sic] to strike. It is assumed and hoped by the
Company that it will never be necessary to
resort to the remedy as provided therein; but it
is available in the event the Union should
desire to utilize it.
* *
(dd) Article XXX-Strikes-In considera-
tion of the fact that you have agreed to our
management clause, and we in turn, have
agreed to eliminate the lockout clause, the
Company would further agree that in the event
any grievance is not settled on the last step of
the Grievance Procedure, the Union will have
the right to strike, provided, of course, that the
issue is fairly presented to the personnel of the
Production and Maintenance Department
which represents your bargaining unit, and that
on proper notice of such hearing, you secure a
majority vote of all of the members in the bar-
gaining unit which you represent.
By handwritten letter dated the following day,
January 17, the Union, after pointing out that by
telephone Respondent had agreed to reinstate the
quarterly bonus payments (mentioned above), ac-
cepted Respondent's counterproposal contained in
its January 16 letter with the sole exception of the
above-quoted articles which the Union continued
to maintain were illegal. Thus through negotiations
continuing through the period of the instant hear-
ing, the parties reached agreement on every article
of a complete contract except for the issue
presented by the paragraphs from Respondent's
January 16 counterproposal quoted above. Thus
the condition precedent to the Union's right to
strike as quoted above is the only thing preventing
a complete agreement between the parties.
There can be no question but that the condition
precedent to striking insisted upon by Respondent
is illegal and that Respondent's insistence thereon
to impasse constitutes g refusal to bargain in viola-
tion of Section 8(a)(5) of the Act. The Supreme
Court so held in N.L.R.B. v. Wooster Division of
Borg-Warner Corporation, 356 U.S. 342, 349, 350,
where the Court in sustaining the Board's 8(a)(5)
finding said:
Since it is lawful to insist upon matters
within the scope of mandatory bargaining and
unlawful to insist upon matters without, the
issue here is whether either the "ballot" or the
"recognition" clause is a subject within the
phrase "wages, hours, and other terms and
conditions of employment" which defines man-
datory bargaining . The "ballot" clause is not
within that definition. It relates only to the
procedure to be followed by the employees
among themselves before their representative
may call a strike or refuse a final offer.4 It set-
tles no term or condition of employment-it
merely calls for an advisory vote of the em-
ployees. It is not a partial "no-strike" clause. A
"no-strike" clause prohibits the employees
from striking during the life of the contract. It
regulates the relations between the employer
and the employees. See N.L.R.B. v. American
' The "ballot" clause in the quoted case is substantially the same as
Respondent proposed in the instant case
CENTRAL MACHINE & TOOL CO.
Co., supra, at 408,'n. 22. The "ballot" clause,
on the other hand, deals only with relations
between the employees and their unions. It
substantially modifies the collective-bargaining
system provided for in the statute by weaken-
ing the independence of the " representative"
chosen by the employees . It enables the em-
ployer, in effect, to deal with its employees
rather than with their statutory representative.
Cf. Medo Photo Corp. v. N.L.R.B., 321 U.S.
678.
Accordingly I must , and hereby do, find that by
insisting upon such illegal condition as the "ballot"
clause to impasse Respondent refused to bargain in
violation of Section 8,(a)(5) of the Act. In addition
I would also hold that from May 31, 1967, to
January 16, 1968, Respondent failed to bargain in
good faith with the Union as the representative of
the employees in the appropriate unit.
B. Clinton Alexander
1. The facts
After his original hire by Respondent on July 8,
1963, Clinton Alexander worked steadily for
Respondent as a regular full-time radial drill opera-
tor. During much of this time Alexander was work-
ing considerable overtime . Respondent laid Alex-
ander off temporarily on March 15, 1967, until
electrical and other repairs made necessary by the
fire of March 14 were completed. Up to the time of
the temporary layoff Alexander's work had been
satisfactory, at least , for he had received no repri-
mands.
When the union organizing campaign began in
early January 1967, Ruel C. Parrish , Respondent's
president , owner, and, for all practical purposes,
sole supervisor or "bull," as he phrased it, was op-
posed to the Union, did not want his employees to
join and said so, verbally and in writing. However,
the evidence presented here showed that none of
these verbal or written statements about the Union
made by Parrish went beyond the protection of
Section 8 (c) of the Act.
The union campaign to organize the production
and maintenance employees of Respondent began
early in January 1967. By letter to Respondent
dated January 24, 1967, the Union claimed to
represent a majority of Respondent' s full-time em-
ployees in the appropriate unit and, for Respon-
dent 's benefit , named all those employees, includ-
ing Alexander , who had signed union authorization
cards upon which the Union based its claimed
majority status. Hence Respondent early knew
Alexander to be a prounion employee and must
also have recognized that his prounion attitude
remained firm when Alexander appeared as the
union observer at the Board -conducted representa-
1597
tion election held on March 15 , the day following
the fire.
After the fire Alexander went back to the plant
on March 27 and inquired of Parrish when he
would be called back . According to Kenneth Smith,
Respondent 's plant manager , the electricity was not
yet set to allow Alexander 's machine to operate.
Alexander was sent home.
Alexander returned to the plant on April 12,
asked Parrish why he , Alexander , had not been re-
called with the rest of the men . Parrish answered
that he was not yet "ready " for Alexander and
would not be until he , Parrish, had promulgated
and published some plant rules under which the
employees were going to have to work thereafter.5
Alexander pointed out that a few days before Par-
rish had had a couple of axles placed by Alexan-
der's radial drill ready to be worked on the follow-
ing Monday morning and again wondered why he
was not being recalled with the rest of the em-
ployees . Parrish accused Alexander of having made
a "nasty " remark about him. Alexander promptly
apologized and, apparently , the apology was ac-
cepted. During the course of this conversation Par-
rish remarked that he had had enough sense to
build up the business and "nobody is going to tell
me anything" about how it was to be run . But Par-
rish again sent Alexander home on the grounds he
was not " ready" for Alexander yet.
On April 14, a very few days after an amended
charge had been filed in Cases 16-CA-2891 and
2859, between the same parties as involved here, in
which the charge was made that Respondent was
discriminating against a number of its employees,
including Alexander , by refusing or delaying their
reinstatement following the March 14 fire , Office
Manager Gerry Koehn telephoned Alexander and
asked him to report for work on April 18 at noon.
When Alexander reported as ordered on April
18, Parrish had Koehn give Alexander a copy of the
new plant rules which, incidently , were the first set
of published rules this plant had ever had. Parrish
instructed Alexander that , if Alexander should need
any help , he, Alexander , was to go to either Ken
Smith or Virgil Roggow so that " there won 't be any
need of walking around and shooting the breeze."
After receiving these instructions, Alexander was
sent to his machine and worked on one axle that af-
ternoon before again being sent home for lack of
work.
The parties stipulated that , apparently in addition
to this one axle upon which Alexander testified he
worked on April 18, Alexander worked on the fol-
lowing days for the following hours during the
remainder of his employment with Respondent:
May 3 , 1967 8 hours
May 4 , 1967 9 hours
May 5, 1967 9 hours
' These were the first and only published plant rules
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 6, 1967 5 hours
May 8, 1967 9 hours
May 9, 1967 9 hours
May 10, 1967 9 hours
May 1 1, 1967 9 hours
May 12, 1967 3.76 hours
June 1 , 1967 4 hours
June 2 , 1967 9 hours
June 3 , 1967 5 hours
June 5 , 1967 3 .9 hours
June 8, 1967 4 hours
June 9 , 1967 5 hours
June 15, 1967 4 hours
June 16, 1967 8 . 64 hours
July 5 , 1967 8 hours
July 6 , 1967 8 hours
July 7, 1967 6 hours
August 4 , 1967 8 hours
August 14, 1967 8 hours
August 15 , 1967 8 hours
August 16 , 1967 7.28 hours
It should be noted that May 3, the day Respon-
dent recalled Alexander to work, was also the day
on which the Union was certified as the bargaining
representative of the employees in the production
and maintenance unit of Respondent 's plant.
After the Union won the representation election
on March 15 and before Alexander was permitted
to return to work at the plant , Respondent promul-
gated and published plant rules for the first time as
noted supra. On May 1 1 these new rules came into
play when Parrish verbally reprimanded Alexander
for having violated two of these newly promulgated
rules: (1) Using too much oil and air in cleaning the
plant area around his machine , and (2) interfering
with an employee on duty. Parrish placed two writ-
ten reprimands for these two alleged "violations" of
the new rules in Alexander 's personnel folder.
These were the first reprimands Alexander had ever
had.
On May 12, Alexander used the wrong drill and
thus made a wrong-sized hole in one of the axles on
which he was then working. This constituted a
$2.50 error; i.e., the cost of repairing same. When
the error was discovered, Parrish proceeded to
"suspend" Alexander for an indefinite period of time
on the grounds that Alexander was "nervous."
When Alexander suggested that he had perhaps
better take his tools with him, Parrish stopped that
by saying, "no, Alex, I need you and I need you
bad."
Cases 16-CA-2891 and 2959 was heard by ' T'rial
Examiner Buchanan between May 17 and 22, 1967.
Alexander testified as a witness for General Coun-
sel. The Trial Examiner 's Decision has issued and is
now before the Board on appeal.
Despite the above protestation by Parrish, it was
not until June 1 that Respondent recalled Alex-
ander . As indicated by the above stipulation , during
the month of June Alexander worked a total of 44
hours on 8 days for an average of 5.5 hours per
day. On this occasion on June 5, about noon, Alex-
ander finished the work to which he had been as-
signed . Plant Manager Ken Smith told Alexander to
go home and Respondent would call him when he
was next needed . Alexander called attention to the
fact that there were 12 or so planet covers ready to
be drilled . This was work which formerly Alexander
customarily did. On this occasion , however, Ken
Smith informed Alexander that the "Old Man,"
Parrish , was "saving" these covers for operator
Koehn , an operator who had not joined the Union
at least at the time of the January 24 letter from the
Union to the Respondent . So Alexander went home
and the work on these planet covers was sub-
sequently performed by Koehn on June 7 when he
returned to work after being absent on June 5 and
6.
Respondent called Alexander in to work again on
July 5 , 6, and 7 . On July 7 Alexander checked into
the plant before work began and on his way to his
own machine he saw employee McKee sitting
awaiting the starting whistle . Alexander and McKee
had a few words regarding the death of a young
man which had appeared in the morning
newspaper . Alexander was at his own machine be-
fore the starting whistle blew . That afternoon Par-
rish called Alexander into his office where Parrish
told Alexander that Alexander had broken another
one of the newly promulgated rules, to wit, that he
had talked to employee McKee for 5 minutes.
Despite Alexander 's denial , Parrish placed another
written reprimand in Alexander 's personnel file.
Thereafter Alexander was not called back to work
until August 4.
When Alexander reported for work on August 4
he requested holiday pay for the Fourth of July to
which all regular full -time employees were entitled.
Gerry Koehn then informed Alexander that Alex-
ander was not entitled to that holiday pay because
he was only a " part-time employee ." This was the
first time that Alexander was ever told that he was
anything but a regular full-time employee.
August 16, 1967, proved to be the last day of
work at Respondent 's plant for Alexander. On that
occasion he was again told that there was no
further work for him and that he would be called
again when needed . After waiting patiently for the
anticipated call until September 21, Alexander
finally went back to the plant , picked up his tools,
and announced he was intending to go to work for
Westinghouse Air Break Company , which has a
plant in Enid.
2. Conclusions
Under these facts General Counsel contends that
Respondent " constructively discharged" Alex-
ander. Alexander maintains , as he puts it, that
Respondent "starved him out ." But Respondent
says that Alexander quit on September 21.
CENTRAL MACHINE & TOOL CO.
The ultimate conclusion reached is, of course,
that, after September 11, Clinton Alexander no
longer had a job with Respondent for the first time
since his initial employment on July 8, 1963.
The uncontradicted evidence is that, as of Sep-
tember 11, Alexander appeared at Respondent's
plant for the first time since his last previous layoff
on August 16, checked out his tools, and, stating
that he either had or was going to get a job with
Westinghouse Air Break (WABCO), he walked out
of Respondent's plant for the last time without let
or hinderance from Rspondent.
So now the question becomes "why?"
From July 8, 1963, Alexander had been a regular
full-time radial drill operator for Respondent, work-
ing a considerable amount of overtime. Then on
January 24, 1967, Respondent learned that Alex-
ander was a prounion employee in favor of the
Union as the bargaining agent. As noted, supra,
Ruel C. Parrish did not want his employees to join
the Union-and said so. On March 15, the day after
the fire, Parrish learned that Alexander had
remained a firm prounion employee, despite Par-
rish's desires to the contrary, when Alexander
served as the Union's observer at the election of
March 15.
The fire caused enough damage so that some of
the employees had to be laid off temporarily while
electrical and other necessary repairs were made.
Alexander returned to the plant on March 27 and
April 12 requesting reinstatement, but on each oc-
casion Parrish informed Alexander that Respondent
was not yet "ready" for him-even though other
employees had been recalled to work prior thereto.
On April 12 Parrish made it clear that, in Alexan-
der's case, he would not be recalled until plant
rules had been promulgated and published. It
should be noted that, until the Union had won the
representation election, plant rules had been un-
necessary. After the election and after the fire such
rules became a prerequisite before some known
union employees, including Alexander, could be
reinstated.
On April 14, a few days after the Union filed its
first charge alleging discrimination in the Respon-
dent's refusing or delaying the reinstatement of
Alexander and others, Respondent called Alex-
ander to report for work on April 18. Upon report-
ing Respondent gave Alexander a copy of the newly
promulgated and published rules and one-half day's
work before sending him back home on the
grounds that there was no work for Alexander to
do. The next time Respondent called Alexander to
work was on May 3, the day the Union was cer-
tified as the bargaining representative of the
production and maintenance employees.
Respondent's own records belie the "lack of
work" excuse Parrish used in sending Alexander
home on April 12 and 14. These records prove,
1599
contrary to Parrish's claim that Alexander worked
on all the axles Respondent turned out after the
fire, that between April 13 and 26, Respondent
shipped 14 axle beams, Product No. 2451, work
which Alexander customarily had done prior to the
fire. But, as Alexander had been sent home
between April 12 and May 3, 1967, because of this
alleged "lack of work," it is clear that Alexander
did not work on these 14 axles. It is also clear that
Respondent, contrary to Parrish's claim, did in fact
have work in April available for Alexander who
completed these axles two to one over any other
operator in the plant.
Respondent again recalled Alexander to work on
May 3, the same day the Union was certified as the
bargaining agent. He worked 9 straight working
days and during that period apparently accounted
for five of the No. 2451 axles and two of the No.
2386 axles which Respondent shipped during this
period. Prior to the fire these axles had been Alex-
ander's regular work. However, during the second
week of this period of employment, Parrish took
occasion to enter three written reprimands into
Alexander's personnel folder for (1) using too
much air and oil in keeping his machine and plant
area clean; (2) speaking to a fellow employee dur-
ing working hours while passing him in the plant-
both allegedly violations of the newly promulgated
plant rules; and (3) boring a hole in an axle with
the wrong size bit-a mistake costing $2.50 to cor-
rect. For these picayunish "violations" of Respon-
dent's new rules, Parrish "suspended" Alexander,
even though it is undenied that known antiunion
employees "violated" the same rules without repri-
mand and with impugnity. Not only was the
promulgation of these new plant rules discriminato-
ry, but equally so was their enforcement.
Alexander remained "suspended" from May 12
to June 1 when Respondent had him return to work
for 4 days I week and for Thursdays and Fridays of
the following 2 weeks.' About noon on June 5
Alexander had finished the work then assigned to
him. At that time there were a dozen or more
planet covers ready to be worked on, work which
Alexander customarily did. However, on this occa-
sion when Alexander suggested that he work on
these planet covers, Plant Manager Ken Smith said,
"the Old Man [Parrish] is saving these for Koehn."
So Alexander was again sent home for "lack of
work" and, on June 7, when he returned to work
again at the plant after cutting wheat on June 5 and
6, Koehn actually performed the work on these
planet covers. Respondent's "saving" of this planet-
cover work from a known union employee for a
known antiunion employee indicates the type of
discrimination being practiced against Alexander.
After June 16 the next time Respondent chose to
recall Alexander for work was July 5, 6, and 7
when apparently Alexander worked on the five No.
" During this period Respondent shipped five No 2451 axles and four
No. 2386 axles
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2451 axles which Respondent shipped that month.
As was becoming customary, on his last day of
work, July 7, Parrish gave Alexander another writ-
ten reprimand for violating the new plant rules
because he spoke to employee McKee in the plant
but before working hours on a nonunion matter.
After July 7 Respondent sent Alexander home
again until August 4 when it had Alexander work 4
days (August 4, 14, 15, and 16). Again from
Respondent's shipping records, Alexander ap-
parently worked on three No. 2451 axles and four
No. 2386 axles. On August 4 Alexander reminded
Office Manager Koehn that, as a regular employee,
he, Alexander, was entitled to holiday pay for July
4. Then for the first time Koehn informed Alex-
ander that Alexander was a "part-time" employee,
and, therefore, not entitled to holiday pay. Alex-
ander was not paid.
Alexander's work at the plant ended on August
16 and, although he waited for another call to come
back to work from Respondent until September 11,
Alexander received none. On September 11, as
found above, Alexander announced he was seeking
work elsewhere.
The sudden necessity for the promulgation of
plant rules after the Union won the representation
election whereas no such rules had been necessary
prior thereto, making the promulgation and publi-
cation of these new rules a condition precedent to
the reinstatement of Alexander and other prounion
employees, although not in the case of some other
employees, and the speedy finding of "violations"
of such rules against Alexander for various small
and picayunish matters while disregarding identical
violations by nonunion employees, prove clear indi-
cations that Respondent intended to be rid of the
prounion Alexander on one pretext or another.
When reprimands for these various alleged "viola-
tions" of the rules failed to discourage Alexander,
Respondent responded by severely restricting the
amount and type of work Respondent would allow
Alexander to do by taking from him the planet-
cover work which he had been doing prior to the
fire. Thus Respondent took work previously al-
located to him from the physically present, but
prounion, Alexander, and "saved" such work for
the physically absent, but nonunion Koehn, so as to
keep Koehn busy when he returned to the plant.
This hardly qualifies as a nondiscriminatory dis-
tribution of work. It is undenied that by these tac-
tics Respondent assigned the regular employee,
Alexander, less work than it even assigned to any of
its part-time employees. All indications point to the
fact that Respondent did, in fact, "starve out"
Alexander because of his prounion activities and
sympathies.
On the other hand Respondent through Parrish
claimed that it had given Alexander all of the work
performable upon his machine but could not keep
that machine busy because Respondent's main
customer, K. W. Dart Company, had cut back its
orders. This contention is not borne out by Respon-
dent's own exhibits. As already noted, Respondent
prepared and shipped 14 axles to Dart during April
while simultaneously telling Alexander that it had
"no work" for him. Nor would Respondent rein-
state him until the new plant rules had been
promulgated. While it is true that Dart did reduce
and cut back its delivery orders on one type of axle
from 277 to only 101, the record shows that
Respondent never shipped the number of axles in
any one month that it had orders to ship during this
whole period. For instance, Respondent had orders
from Dart to ship 21 No. 2451 axles during the
month of May but actually Respondent shipped out
only 8 such axles between April 28 and June 12.
These records further prove that Respondent had
plenty of castings on hand with which to fulfill its
shipping orders. The facts plainly disprove Parrish's
claim of insufficient work to keep Alexander busy.
Finally Plant Superintendent Ken Smith ad-
vanced the contention that the reason that Alex-
ander was not kept busy around the plant was
because he failed to report for work after August
16. This contention is absurd because, as Smith ad-
mitted, part-time employees, such as Alexander
became on August 4, were supposed to report to
the plant for work only when called by Respondent.
The fact is, as also admitted by Smith, that after
August 16, Respondent never called Alexander to
report for work.
The facts prove, and I must find, that Respondent
constructively discharged Clinton Alexander on
September 11, 1967, by "starving him out," by
deliberately failing to provide him with work
because of his known prounion activities and sym-
pathies, in violation of Section 8(a)(3) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has en-
gaged in certain unfair labor practices, it will be
recommended that Respondent cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminated in
regard to the hire and tenure of employment of
Clinton Alexander by constructively discharging
him on September 11, 1967, because of his mem-
bership in and activities on behalf of the Union, I
will recommend that Respondent offer to Clinton
Alexander immediate and full reinstatement to his
CENTRAL MACHINE & TOOL CO. 1601
former or substantially equivalent position without
prejudice to his seniority or other rights and
privileges and make him whole for any loss of pay
he may have suffered by reason of said discrimina-
tion against him by payment to him of a sum of
money equal to that which he would earned from
the date of the discrimination against him to the
date of his reinstatement, less his net earnings dur-
ing such period, in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289,
with interest thereon at 6 percent per annum.
It is found that Respondent has refused to bar-
gain in good faith with the Union as the certified
bargaining agent for all of Respondent's production
and maintenance employees in the appropriate unit
and that Respondent particularly so refused to bar-
gain on January 16, 1968, by its insistence upon the
inclusion in such contract of a certain illegal
requirement as found heretofore when, in all other
respects, the parties had otherwise reached agree-
ment as shown by the Union's letter of January 17,
1968. In the light of these facts and in order to
restore the status quo, I will recommend that, upon
request, Respondent bargain in good faith with the
Union as the certified representative of Respon-
dent's production and maintenance employees in
the appropriate unit or, at the Union's option, that
Respondent execute the agreement offered by
Respondent in its letter of January 16, 1968, and
accepted by the Union by its letter of January 17,
1968, with the exception of the illegal condition at-
tached thereto by Respondent and found above.
Because of the variety of the unfair labor prac-
tices engaged in by the Respondent, I sense an op-
position by Respondent to the policies of the Act in
general , and hence I deem it necessary to order
Respondent to cease and desist from in any manner
infringing upon the rights guaranteed its employees
in Section 7 of the Act.
CONCLUSIONS OF LAW
1. International Association of Machinists and
Aerospace Workers , AFL-CIO, is a labor organiza-
tion admitting to membership employees of
Respondent.
2. By discriminating in regard to the hire and
tenure of employment of Clinton Alexander by
constructively discharging him on September 11,
1967, because of his membership in and activities
on behalf of the Union , Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8 ( a)(3) and (1) of the Act.
3. All production and maintenance employees,
including truckdrivers and regular part -time em-
ployees , but excluding office clerical employees,
professional and technical employees , guards,
watchmen , and supervisors , as defined in the Act,
as amended, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
4. On May 3, 1967, and at all times thereafter,
the Union has been, and now is, the representative
for the purposes of collective bargaining of all of
Respondent's employees in the above-described ap-
propriate unit, and, by virtue of Section 9(a) of the
Act, has been and now is the exclusive representa-
tive of all employees in such appropriate unit for
the purposes of collective bargaining with Respon-
dent in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
5. By refusing from on and after May 31, 1967,
and particularly on January 16, 1968, and at all
times thereafter, to bargain in good faith with the
Union as such exclusive representative of its em-
ployees, Respondent has refused to bargain with
such certified union as such representative in good
faith in violation of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact and conclu-
sions of law, and upon the entire record, I hereby
issue the following:
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law , and upon the entire record
in this case , I recommend that Central Machine &
Tool Company , Inc., Enid , Oklahoma , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in
regard to the hire or tenure of employment or any
term or condition of employment of its employees
because of their membership in or activities on be-
half of International Association of Machinists and
Aerospace Workers , AFL-CIO, or any other labor
organization of their choice.
(b) Refusing to bargain in good faith with Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO, as the certified representative
of all Respondent 's production and maintenance
employees in the appropriate unit consisting of all
production and maintenance employees , including
truckdrivers and regular part-time employees, but
excluding office clerical employees , professional
and technical employees , guards , watchmen, and
supervisors as defined in the Act.
(c) In any like or related manner interfering with
the employees ' right to self-organization , to form,
join , or assist labor organizations, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in any other union or concerted
activities for the purposes of collective bargaining
or other mutual aid or protection , or to refrain
therefrom except to the extent that such rights may
be affected by an agreement requiring membership
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a labor organization as a condition of employ-
ment as authorized in the proviso of Section
8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Clinton Alexander immediate and un-
conditional reinstatement to his former or substan-
tially equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him in
the manner set forth in the section hereof entitled
"The Remedy" with interest thereon at 6 percent
per annum.
(b) Upon request, bargain in good faith with In-
ternational Association of Machinists and
Aerospace Workers, AFL-CIO, as the certified bar-
gaining representative of all those employees of
Respondent in the appropriate unit found above or,
at the Union's option, execute the agreement of-
fered by Respondent to said Union by letter dated
January 16, 1968, as altered and accepted by the
Union's letter of January 17, 1968, omitting the il-
legal condition found above herein.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its plant in Enid, Oklahoma, copies
of the attached notice marked "Appendix."7 Copies
of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 16,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.8
IT IS FURTHER RECOMMENDED that, unless Respon-
dent notifies said Regional Director within 20 days
from the receipt hereof that it will take the action
here recommended, the Board issue an order
directing Respondent to take the action here
recommended.
APPENDIX
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL offer Clinton Alexander his former
or substantially equivalent position , without
prejudice to his seniority or other rights and
privileges , and we will pay him for any loss of
pay he may have suffered because of our dis-
crimination against him together with interest
thereon at 6 percent per annum.
WE WILL NOT discourage membership and
activities on behalf of International Association
of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by
discriminating in regard to the hire, tenure, or
other term or condition of employment of any
of our employees.
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the exer-
cise of their right to self-organization, to form,
join , or assist International Association of
Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, to
bargain collectively through a bargaining agent
chosen by our employees , to engage in con-
certed activities for the purposes of collective
bargaining or other mutual aid or protection,
or to refrain from any such activities 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 by Section 8(a)(3) of the Act, as
amended.
WE WILL bargain in good faith with Interna-
tional Association of Machinists and
Aerospace Workers, AFL-CIO, as the certified
representative of our production and main-
tenance employees in the appropriate unit or,
at the Union 's option , we will execute an
agreement containing all those terms and con-
ditions offered in our letter to the Union dated
January 16, 1968, as accepted and amended by
the Union 's letter dated January 17, 1968, but
deleting the illegal condition of prestrike bal-
loting by unit employees.
All our employees are free to become or remain,
' 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 further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the woords "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall he modified to read " Notify the Regional Director for
Region 16, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
CENTRAL MACHINE & TOOL CO.
or to refrain from becoming or remaining , members
of the aforesaid Union or of any other labor or-
ganization , except to the extent that this right may
be affected by an agreement executed in confirma-
tion with Section 8(a)(3) of the Act, as amended.
CENTRAL MACHINE &
TOOL COMPANY, INC.
(Employer)
Dated By
1603
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office, Room 8A24, Federal Office Building, 819
Taylor Street, Fort Worth, Texas 76102, Telephone
334-2921.