Cosmodyne Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 15, 1964

150 N.L.R.B. 96 (N.L.R.B. 1964)

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steelworkers of America, AFL-CIO, are entitled to unload the
Employer's cargo from the Employer's ships at the Employer's Pitts-
burg Works' dock.
2. Accordingly, International Longshoremen's & Warehousemen's
Union, and Locals 6, 10, 34, 54, and 91, affiliated with International
Longshoremen's and Warehousemen's Union, are not and have not
been lawfully entitled to force or require United States Steel Corpo-
ration to assign the unloading of the Employer's cargo from the
Employer's ships at the Employer's dock at Pittsburg, California, to
members of said organization.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Longshoremen's & Warehousemen's Union, and
Locals 6, 10, 34, 54, and 91, all affiliated with International Long-
shoremen's and Warehousemen's Union, shall notify the Regional
Director for Region 20, in writing, whether or not they will refrain
from forcing or requiring United States Steel Corporation to assign
the work in dispute to their members rather than to employees of
the Employer.
Cosmodyne Manufacturing Company and International Brother-
hood of Boilermakers, Iron Ship - - Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, Local No . 40. Case No. 9-CA-
3101. December 15, 1964
DECISION AND ORDER
On August 18, 1964, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair, labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent and the General Counsel filed exceptions to
the Trial Examiner's Decision and briefs in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Fan-
ning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
150 NLRB No. 1.
COSMODYNE MANUFACTURING COMPANY 97
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and the briefs, and the
entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent Cosmo-
dyne Manufacturing Company, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
The original charge herein was served upon Respondent on February 13, 1964,1 the
complaint issued on March 31, and the case was heard before Trial Examiner Sidney
Sherman, from May 19 to 22. The issues litigated were whether Respondent had
violated Section 8(a)(1) of the Act by threats, surveillance , and interrogation, and
Section 8 ( a)(5) and (1) of the Act by refusing to bargain with the Union . After the
hearing, briefs were filed by Respondent 2 and the General Counsel.
Upon the entire record,3 and my observation of the witnesses , I adopt the following
findings of fact.
1. THE BUSINESS OF RESPONDENT
Cosmodyne Manufacturing Company, herein called Respondent , is a Kentucky
corporation engaged in the manufacture of pressure tanks at its plant in Louisville,
Kentucky . Respondent annually receives from out-of-State points materials valued
in excess of $50,000.
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, Local No. 40, herein called the Union, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint , as amended at the hearing, alleged that Respondent violated Section
8 (a) (5) and ( 1) of the Act by refusing to bargain with the Union , and Section 8 (a) (1)
of the Act by surveillance of a union meeting, by interrogating employees concerning
their union activities, and threatening reprisals for such activities.4
While admitting the refusal to bargain , the answer denies any violation of the Act.
A. Sequence of events
Early in January , the Union began to organize Respondent 's employees , obtaining
signatures on cards designating the Union as collective -bargaining agent . By letter
dated January 13, the Union informed Respondent that a majority of its production
I All events herein occurred in 1964 unless otherwise stated
a After the time for filing briefs had expired, Respondent submitted to me , as a supple-
ment to its main brief , a memorandum containing references to certain decisions, which
had just come to Its attention . I have taken note of these decisions
3 The transcript of testimony taken herein is hereby ordered corrected as follows:
Page 89 , line 22, strike " if" ; page 89 , line 23, insert " if" after "that" ; page 274, line 8,
strike "will" ; page 604, line 4, Insert "not" after "was" ; page 709, line 6, change
"trickery" to "intricacies" , page 709 , line 7, change "no" to "know"; page 789, line 24,
insert "no" after "were" , page 827, line 4, change "wouldn ' t" to "would"; page 854,
line 8, change "fact" to "inference".
4 Other allegations of the complaint , as amended , were either withdrawn or stricken at
the hearing.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance employees had selected the Union as their collective-bargaining
agent, and requested that Respondent recognize the Union and meet with it to negotiate
an agreement. This letter further stated:
In the event you have any doubt as to our representing a majority of your
employees in the above unit, we will be more than willing to submit the signed
authorization and membership cards of your employees to a neutral third party,
mutually agreed upon, and allow such third party to compare said cards with
your present payroll.
Respondent received this letter on January 13, but did not make any reply thereto.
On January 16, Heath, the manager of the plant here involved, called a meeting of the
employees on company time and premises, in which he expressed his opposition to the
Union. On January 20, the Union filed a representation petition with the Board. On
February 4, Heath again called a meeting of the employees on company time and
premises, in which he again expressed views critical of the Union. On February 11,
the Respondent and the Union met at the office of the Board to discuss a consent elec-
tion, but were unable to agree thereon. A request by the Union on that occasion for
recognition without an election was rejected by Respondent. The Union thereupon
filed the instant charge, and action on the petition for an election has been withheld
in view of the pendency of the charge.
B. Discussion
1. The 8(a)(1) issue
The alleged violations of Section 8 (a) (1) which are still in issue 5 are limited to
incidents involving Callahan and Rafferty. At the time of the Union's request for
recognition-January 13-both were classified as leadmen. The General Counsel,
contrary to the Respondent, contends that they were then supervisors within the mean-
ing of the Act.
It therefore becomes necessary to consider, at the outset, whether they were on
January 13 supervisors under the Act.° The managerial hierarchy at the plant is
headed up by Heath. Reporting to him are Brown, the production manager, and
Alexander, the foreman. According to Respondent's witnesses, Alexander is the
immediate supervisor of all Respondent's employees, numbering about 40 on the day
shift (8 a.m. to 4 p.m.) and 20 on the night shift (4 p.m. to 12), and Respondent
adduced testimony that on the day shift Alexander is present in the plant virtually all
the time, giving orders to employees, either directly or through a leadman. While
Alexander concededly does not remain in the plant throughout the night shift, he testi-
fied that, before leaving the plant in the evening, he gives the night shift leadman a
list of written instructions, specifying the jobs to be done that night, which instructions
are supplemented by oral instructions, including advice as to which employee is to be
assigned to a particular job, and that, if any problem arises during the night shift
which is not covered by such instructions, the leadman is required to call Alexander
at his home for advice, and frequently does so. Respondent introduced in evidence
exhibits purporting to be samples of the aforementioned written instructions given by
Alexander to the night leadman. These exhibits consist of lists of tasks to be per-
formed, and occasionally designate which employee is to be assigned to a particular
task. In addition, Alexander testified that he gave at least one of the leadmen,
Rafferty, a list of employees, showing the work each was qualified to do, to aid him in
making job assignments. Rafferty substantially corroborated this testimony.
Callahan testified that while, in most cases, Alexander designates which employees
are to be assigned to particular tasks, Callahan sometimes makes his own selections,
based on the employees' qualifications, and that in so doing he uses "independent
judgment." Rafferty testified, in effect, that he based his job assignments on the
qualifications of the employees, as conveyed to him by higher management, and that,
as between two qualified employees, he would assign the first one who became
available.
With regard to the scheduling of overtime work, Callahan testified that such work
on the night shift is scheduled either on the basis of (1) written instructions by
Alexander to the night leadman that a particular job is to be completed that night, or
(2) a telephone call by the leadman to Alexander at the end of the shift, reporting on
s See footnote 4, above.
d However, it may be noted that, in view of my findings below, a determination of their
supervisory status is not essential to resolution of the issue of the Union's majority
status or the validity of Respondent's refusal to bargain.
COSMODYNE MANUFACTURING COMPANY' 99
the status of a job, and eliciting from Alexander a direction to work overtime to com-
plete the job. As for the selection of employees for overtime work, Callahan testified
that, if available for overtime work, the employee who is working on a particular job
at the end of the shift continues on that job until it is completed, and that, if he is not
available, his replacement is in most cases selected by Alexander. Alexander testified
that overtime may be authorized only by him, and not by the leadman, and that, if
the employee who is performing a job requiring overtime work is not available for
such work, the leadman calls for volunteers. However, it is undisputed that on one
occasion Rafferty detained an employee for more than an hour beyond the end of his
shift to discuss union activity in the plant, and that the employee was paid overtime
for that period. There is no evidence or contention that such overtime was authorized
in advance by Alexander.
With regard to time off, Respondent's witnesses were in substantial agreement that,
while leadmen grant time off, they have not discretion to deny any request for time off,
as it is Respondent 's policy to honor all such requests, in view of the fact that the
employees receive no pay for time off, being paid only for hours actually worked.
With regard to Callahan, the record shows that Respondent included his name in a
list of its employees as of January 23, which was furnished by Respondent to its legal
counsel to be used in complying with the Board's request for a list of the employees
currently in the bargaining unit,7 but that Callahan's name was omitted from the list
sent by Respondent's counsel to the Board on January 27. To explain this omission,
Respondent offered the testimony of Woolery, a member of the law film representing
Respondent, that, upon noticing that Callahan was the only one on the Respondent's
list classified as a leadman,s he inquired of Heath whether Callahan "used discretion
and judgment" in his work, and that, when Heath answered in the affirmative, Woolery
decided to omit Callahan's name from the list sent to the Regional Director on
January 27.9
In resolving the issue of supervisory status, the Board gives weight to the ratio of
supervisory to nonsupervisory employees.10 Here, according to Respondent, Alex-
ander was the only immediate supervisor of the approximately 40 employees on the
day shift and approximately 20 on the night shift This would seem to be a dispro-
portionately high ratio, a circumstance militating in favor of a finding that the lead-
men were supervisors. Moreover, it is difficult to reconcile the testimony of Respond-
ent's witnesses concerning the routine and purely ministerial nature of a leadman's
duties with the admission by Callahan, noted above, that he used "independent
judgment" in selecting employees for work assignments, and the admission of Heath
to his own counsel late in January that Callahan exercised "discretion and judgment"
in his work. Even if one makes due allowance for the fact that these were expressions
of opinion by laymen, it is difficult to believe that they could have entertained such
opinions if the duties of the leadmen were as perfunctory, and their discretion as cir-
cumscribed, as was represented to be the case at the hearing 11 I conclude therefore
that, in directing the work of employees, and making work assignments, Callahan was
required to exercise independent judgment, and so was a supervisor under the Act.12
As Respondent's witnesses testified that Callahan and Rafferty possessed equal
authority, and as both were used interchangeably as leadmen on the day and night
shifts, I find that Rafferty was also a supervisor under the Act.
Interrogation and Threats
Employee Povey testified that on January 10, the day after he had signed a union
card, Rafferty asked him what he knew about the Union, read off to him a list of
names of employees, asking whether they were for or against the Union, and inquired
This request was made in connection with the processing of a representation petition
filed with the Board by the Union on January 20
8 On January 23, the date on which the list was prepared, Rafferty was no longer
classified as a leadman, having been transferred to layout work on January 17
8 According to \Voolery, further investigation satisfied him that Callahan did not ex-
ercise any discretion, and the record shows that Callahan's name was included in a list
of the unit employees as of February 9, submitted by Respondent to the Union on Febru-
ary 11, in connection with discussion of it consent election
10 The Illinois Canning Co., 120 NLRB 669, Swift & Company, 119 NLRB 1556, 1569-
1570; Interstate Co , 118 NLRB 746
11 Respondent made no effort to elicit from Heath or Callahan an explanation of their
admissions.
>z There is no evidence that lie possessed any of the other statutory attributes of a
supervisor.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether employee Huff was "an organizer for the Union." Employee Bryant testified
that on or about January 10 Rafferty questioned him about his knowledge of union
activity and his attendance at a union meeting. Employee Martin testified that between
January 10 and 13, Rafferty asked him who were the instigators of the union move-
ment in the plant, stated that they would be found out and would be discharged within
a year, and inquired whether Huff was one of them. Huff testified that in mid-
January, Rafferty admitted to him that he had interrogated other employees about
Huff's role in the Union but was satisfied that he was not an "organizer." Rafferty
denied generally that he ever "discussed Union pro or con with anybody," and, while
admitting that he had detained Martin after the end of his shift to talk to him, he
denied that the discussion related to the Union.
In view of the circumstantiality of the foregoing employee testimony, and on the
basis of demeanor considerations, I credit such testimony, and find that Rafferty on
the foregoing occasions interrogated the employees about their union activities and
those of other employees, and threatened reprisals against the leaders of the union
faction.
Respondent contends that it should not, in any event, be held responsible for any
coercive conduct by Rafferty, inter alia, because it effectively repudiated such conduct.
The record shows, and I find, that on January 16 at a meeting with the employees,
upon receiving complaints about Rafferty's interrogation of employees, Heath an-
nounced that he would consider what action to take with respect to Rafferty in view
of these complaints, and that the next day, because of these complaints, Rafferty was
relieved of his duties as leadman and returned to his former job as layout man. I
find further, on the basis of Heath's uncontradicted testimony, that at the same meet-
ing Heath assured the employees that there would be no reprisals against them for
union activities.
I find that the foregoing measures were calculated to apprise the employees that
Respondent did not condone Rafferty's foregoing conduct, that Respondent thereby
effectively disassociated itself in the eyes of the employees from such conduct, and
that it may not be held responsible therefor, and I will recommend that the allegations
of the complaint based on Rafferty's conduct be dismissed.
Surveillance
The complaint alleges surveillance by Callahan of a union meeting.
It is not disputed that about 2 p.m . on February 1, a number of Respondent's
employees attended a meeting at the union hall on Bardstown Road, and that Callahan
sat in his parked car for some time at a point diagonally opposite , and within view of,
the union hall, and that he was observed by employees to drive by the hall twice,
with his gaze directed at it.
Callahan admitted that he had prior notice of the time and place of the union
meeting, but insisted that his presence in the vicinity of the meeting was purely
fortuitous and not for the purpose of surveillance . According to Callahan, he had
driven his family to a shopping center about five or six blocks from the union hall and,
being left in the car with his 2-year -old daughter , who became restless, he attempted
to pacify her by driving aimlessly about in the vicinity and stopping at random. One
of these random stops, according to Callahan , was on Tyler Lane, within view of the
union hall, where he admittedly parked for about 10 minutes. He then drove north on
Bardstown Road, away from the shopping center and past the union hall, later return-
ing by the same route to the shopping center, where he picked up the other members of
his family.
There were manifest inconsistencies in his testimony . As already noted, he
attributed his decision to drive around at random to the need for pacifying his
daughter . However, when asked why he stopped on one occasion for 5 minutes in a
residential area, he explained that he did so partly to pacify the baby, and he asserted
that he later stopped opposite the union hall for the same reason . Callahan failed to
explain why, at times, he deemed it necessary to drive around to pacify his child and
at other times deemed it necessary to park for an appreciable length of time to
achieve the same result . Nor is there anything in Callahan 's testimony to suggest
why, of all places, he found it necessary to select for that purpose a location com-
manding a view of the union hall. He did not claim that any emergency arose which
forced him to stop at that precise spot and time. In view of the foregoing considera-
tions, and in view of the unlikelihood that Callahan would happen by pure chance to
arrive opposite the union hall at the precise moment that , as he knew , the meeting was
to be held, I reject his explanation , and find that he went there for the purpose of
surveillance . Moreover, I find that even if that was not his purpose , by his conduct
in remaining opposite the union hall during the meeting , absent any showing of an
COSMODYNE MANUFACTURING COMPANY 101
emergency which required that he choose that precise spot and time to park, and by
driving back and forth in front of the union hall, with his gaze directed at it, he
knowingly gave the employees at the hall reason to believe that he was engaging in
surveillance. Accordingly, I find that by the foregoing conduct of Callahan, Respond-
ent violated Section 8 (a) (1) of the Act.
2. Refusal to bargain
a. The appropriate unit
It was stipulated at the hearing, and I find, that the following unit is appropriate for
purposes of collective bargaining:
All production, maintenance, and stockroom employees of the Respondent at its
Louisville, Kentucky, plant, excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
b. The Union's majority status
Respondent adduced evidence that on the date of the Union's bargaining demand
(January 13) there were 61 employees in the unit,13 including Rafferty and Callahan.
In his brief the General Counsel agrees with this count, except that he would exclude
Rafferty and Callahan on the ground that they were supervisors on that date. As they
have been found above to be supervisors, they will be excluded, leaving 59 in the unit.
At the hearing, the General Counsel offered 37 cards in evidence, of which 31 were
received, 3 were rejected, and ruling was reserved as to the remaining 3 cards. As
to one of the employees in the last category-Welch-it is clear from a review of
Board decisions that he is eligible,14 and I so find. As it would not affect the Union's
majority status, there is no need to consider further the eligibility of those employees
whose cards have been rejected or as to whose cards ruling has been reserved. For,
even if one adds only Welch's card to the 31 that have heretofore been received,15 the
Union, on January 13, had a clear majority of 32 out of 59 employees.
I find therefore that on that date the Union represented a majority in the appro-
priate unit.
c. The refusal to bargain; good-faith doubt
Respondent concedes that it refused to recognize the Union as the representative
of its employees, contending, however, that such refusal was lawful because based on
a good-faith doubt of the Union's majority status.
Heath testified that, upon receipt of the Union's bargaining request, he called
Respondent's president at its headquarters in Los Angeles, California, informing him
of the contents of the Union's letter; that the latter instructed him not to answer the
letter but to forward a copy to Los Angeles, where the text of a reply, if any were
made, would be prepared; that Heath was also instructed to caution his supervisors
against interrogation or threats, and not to take any other action pending a decision by
his superiors whether the matter should be handled by local counsel to be retained by
Heath or by Respondent's industrial relations director in Los Angeles. Heath testified
further that several days later he called Los Angeles and stated that he had found
competent local counsel; that he was thereupon authorized to retain Smith; that he
did retain him on January 20; that 1 or 2 days later he received a copy of the repre-
13 In its brief, Respondent advances the curious contention that there should be added
to the 61 employees actually on its payroll on January 13, an employee (Sutherlin) who
was separated on January 10, and whose card was rejected at the hearing for that reason
The only ground cited for this contention is that General Counsel would have Sutherlin's
card counted for the Union. The short answer to this is that General Counsel does not
now so contend and the card has not in fact been so counted by me
14 The only reason for questioning his eligibility was the fact that when'he signed the
card he had already given Respondent notice of his intent to quit, and he did in fact quit
on January 17 (4 days after the Union's demand). The Board, with judicial approval,
has held that under such circumstances an employee remains eligible to vote for a union
until after he actually quits General Tube Company, 141 NLRB 441, enfd. 331 F. 2d 751
(C.A. 6).
ss In its brief, Respondent contends that these 31 cards are "tainted," but the only
reasons advanced therefor are that: (1) 7 of the cards were signed by employees who are
no longer in Respondent's employ, (2) many of the cards were obtained outside a tavern,
and (3) most of the General Counsel's witnesses used similar language in explaining their
reason for signing the cards. I find that none of these grounds warrants rejecting the
cards.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentation petition filed by the Union with the Board on January 20; and that on
January 29 or 30 he received a petition signed by 32 employees, repudiating the
Union 16
Heath attributed his refusal to recognize the Union on January 13 to the fact that
he doubted the Union's claim to majority status. In explaining the reason for his
doubt, Heath stressed the fact that in 1962, before the instant plant was acquired by
Respondent, he had a conversation with Payne, a business agent of the Union,
regarding wage rates in the Louisville area, in the course of which Payne offered to
supply him with all the employees he desired at a rate substantially below the pre-
vailing rate, provided that Respondent entered into a contract with the Union. Accord-
ing to Heath, he regarded this offer by Payne as a proposal for a "sweetheart" con-
tract, and he was not disposed on January 13 to give any credence to a claim of major-
ity status by a union that was capable of such questionable conduct. In addition,
Heath asserted that his doubt of the Union's claim was reinforced by the fact that, al-
though he was on friendly terms with the employees, he had had no prior intimation
from them of any union activity, and by the fact that in December 1962 an attempt by
another union to organize the employees had met with virtually no response.17
However, the following circumstances militate against a finding that Respondent's
refusal to bargain was prompted by a good-faith doubt of the Union's majority:
1. Neither Heath nor his attorney made any reply to the Union's letter of Janu-
ary 13, nor did they communicate to the Union in any form their refusal to recognize
it until about a month later, when, at a conference with the Union on February 11
concerning a consent election, Smith was pressed by the union representative to state
whether he would recognize the Union. The Board has held, with judicial approval,
that a failure to answer, or undue delay in answering, a request for bargaining is not
consistent with good-faith doubt.18
2. Not only did Respondent fail for at least a month 19 to communicate to the
Union its doubt of the Union's majority status, but there is no evidence that Heath
expressed such doubt even to his superiors in his various discussions with them after
receipt of the Union's request for recognition.20 Nondisclosure, or belated dis-
closure, of an employer's doubt of a union's majority status argues against the genuine-
ness of such doubt,21 and warrants the interference that it is merely an afterthought 22
3. As already related, in its January 13 letter, the Union offered to submit its cards,
for verification, to a mutually acceptable third party. Respondent did not respond
10 Also, according to Heath, on January 23 or 24, Huff had offered to help Respondent
against the Union However, contrary to the assertion in Respondent's brief, Huff did
not then tell Heath that there was no interest in the instant union in the plant. That
assertion appears to be based on a misreading of Heath's testimony concerning Huff's dis-
cussion of an earlier abortive campaign by a different union
17 Heath asserted also that his doubt of the Union's claim was confirmed by the anti-
union petition, signed by 32 employees, received by him on January 29 or 30. However,
while that circumstance may have justified Heath in doubting the Union's majority
status after that date, it could not retroactively support his alleged prior doubt of such
status. See Fred Snow, at at., cl/b/a Snow & Sons v. N.L R.B., 308 F. 2d 687, 694
(CA 9), enfg 134 NLRB 709.
11 N L R B. v The Howe Scale Co, 311 F. 2d 502, 505 (C.A 7), enfg 134 NLRB 275.
The court there quoted with approval the following from the Trial Examiner's findings
in that case: "'Good-faith doubt would have dictated immediate response stating candidly
the Respondent's position.' " See also N.L.R.B. v. Economy Food Center, Inc., 333 F. 2d
468 (C A. 7), enfg. 142 NLR11 901
Heath indicated, in effect, that his failure to reply to the Union's letter was due at
least in part to the fact that lie assumed that this was merely a formal prelude to the
filing of a representation petition, and that be believed that the subsequent filing of such
a petition by the Union on January 20 made any reply thereafter unnecessary As to
the validity of. this reason for ignoring the Union's bargaining request, see discussion in
the text below
iiAccording to Brown and Heath, at the aforementioned conference on February 11,
Smith answered in the affirmative when a union representative asked him if his refusal
of recognition was due to a "good faith doubt."
20 Heath's version of such discussions contains no reference to any such doubt, and he
admitted that he could not recall whether he did refer to such doubt in those discussions.
21 See, e g, Columbine Beverage Co, 138 NLRB 1297, 1299.
2e Moreover, as to the availability of a union's prior misconduct as a basis for doubting
its claims of majority status, see P.B. & S. Chemical Company, et al., 148 NLRB 152.
COSMODYNE MANUFACTURING COMPANY 103
to this offer. It is well settled that rejection of such an offer is not consistent with
good faith.23 A respondent may not "deliberately shut its eyes to the facts . .
and assiduously [avoid] giving the union any real opportunity to substantiate its
claims." 24 Here, the only explanation offered for Respondent's failure to assent to a
card check was that elicited from Respondent's counsel, Smith, while on the witness
stand He asserted that he did not accept the offer of a card check because his long
experience in labor relations matters had taught him that unions sometimes obtain
cards by misrepresentations, threats, or promises, and that a card check is the most
unreliable way of determining the wishes of employees.
Thus, basically, Smith's position at this point was that he did not agree to a card
check because even the fact that the Union had obtained cards from a majority of the
employees would prove nothing to him, in view of his conviction that cards, in gen-
eral, are an unreliable index of employee sentiment, because of the danger that they
may have been obtained by improper means. However, this reason for rejecting a
card check conflicts with the Board's rule that an employer may not base a refusal
to recognize a union. on doubt as to the validity of the cards obtained by it, absent
specific evidence of facts tending to invalidate such cards.25
By the same token, an employer may not base a refusal to assent to a card check
on doubt as to the validity of the cards, absent specific evidence of facts tending to
invalidate such cards. Here, there is no contention that Respondent had any such
evidence at the time of its refusal of recognition, or, indeed, at any time before the
instant hearing, and even at the hearing such evidence was elicited only as to a few
cards, insufficient in number to affect the Union's majority status.
Accordingly, I find that Respondent has failed to offer any tenable explanation 26
for ignoring the Union's offer of a card check, and I find further, in accord with the
authorities cited above, that Respondent's failure to give the Union an opportunity to
substantiate its claims reflects on Respondent's good faith.
4. At the hearing, Heath attributed his delay in answering the Union's January 13
letter, at least in part, to the fact that, having observed a notation on that letter that a
copy thereof had been sent to the Board's Regional Office, he assumed that the letter
was merely a formal prelude to the filing of a representation petition and did not call
for any reply, and when the Union did in fact file a petition about a week later, he
assumed that the Union's request for recognition was thereafter in abeyance pending
the outcome of the election. As to the latter assumption, it is well settled that the
filing of a representation petition by a union does not per se excuse a refusal to recog-
nize such union 27 It follows, a fortiori, that even if Heath, as he claimed, anticipated
on January 13 that a representation petition would be filed, that circumstance would
not excuse Respondent's failure to recognize the Union at any time after that date.28
5. The Respondent after January 13 launched a campaign to wean the employees
away from the Union. Even if one overlooks, as proof of Respondent's bad faith,
13 See, e g, N.L.R B. v. Economy Food Center, Inc, supra; Columbine Beverage Co.,
supra
2NL.RB v Philamon Laboratories, Inc, 298 F. 2d 176, 180 (C.A. 2), cert denied
370 U S 919
^ Such evidence must, moreover, affect a sufficient number of cards to eliminate the
Union's majority status. See Fred Snow, et al., d/b/a Snow & Sons, 134 NLRB 709 enfd.
308 F. 2d 687 (C.A 9)
20 Moreover, the explanation offered by Smith was not only untenable, but was also at
odds with the fact, admitted by Smith, that on January 28, in the course of a conversa-
tion with a Board agent about the Union's representation petition, Smith, in'accord with
his usual practice, attempted to elicit information as to whether the Union had obtained
cards from a majority of the employees Smith failed to explain why he regarded such
information more reliable when furnished by a Board agent than when furnished under
the circumstances proposed by the Union. It seems proper to infer from the foregoing
that Smith objected to a card check, not because of the unreliability of the cards, but
rather because of the danger that Respondent's assent to a card check might be deemed
to imply a commitment to recognize the Union if it had sufficient cards.
27 E g., General Medical Supply Corp., 140 NLRB 712; Permacold Industries, Inc., 147
NLRB 712.
28While Heath professed to be a novice in labor relations matters, Respondent's higher
management had recently had the experience of participating in a Board election Involv-
ing a sister local of the Union and one of Respondent's wholly owned subsidiaries, and of
negotiating a contract with such local In any case, after January 21, Heath had compe-
tent legal counsel who was in a position to advise him of the risks of withholding recog-
nition because of the pendency of a representation petition.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Callahan's illegal surveillance of the union meeting on February 1,29 it is undisputed
that on January 16 at an employee meeting in the plant, called by him, Heath declared
that he was "shocked" by the Union's letter, and that the employees could hire the
best lawyer in town to represent them with the money they would have to pay for
union dues. Moreover, I credit testimony that on this occasion he declared that he
did not want the Union, did not want any outsider operating his business, and did not
believe the' employees needed a union.30 At another such meeting on February 4,
Heath read a prepared speech in which he referred to the Union's representation
petition, voiced Respondent's opposition to unions, asserted that the Union had in
1962 offered him a "sweetheart" contract (see discussion of this, above), taxed the
Union with ulterior motives, and referred to "these outside troublemakers of the
Boilermakers Union."
Upon consideration of all the foregoing circumstances, I do not credit Heath's
assertion that on January 13 he entertained a good-faith doubt of the Union's majority
status. His failure to answer the Union's letter or to express such doubt even to his
superiors, his failure to explain why he did not accept the Union's offer of a card
check as a means'of resolving such doubt, together with the other matters cited above,
are persuasive that Heath did not in fact entertain any such doubt at that time, and
that his true reason for refusing to recognize the Union was to afford him an oppor-
tunity to bring home to the employees his antiunion views and thereby dissipate, albeit
by noncoercive means, the Union's majority status 31
I conclude therefore that, by refusing to recognize, and bargain with, the Union on
and after January 13, Respondent violated Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having, been found that the Respondent violated Section 8(a) (1) and (5) of the
Act, it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain with the Union, which
represented a majority of the employees in an appropriate unit. Accordingly, I shall
20 Normally, coercive acts by a respondent are deemed to vitiate any claim of a good-
faith doubt of a union's majority status. Joy Silk Mills, Inc. v. N.L.R B., 182 F. 2d
732 (C.A.D C ). However, the significance of Callahan's misconduct Is attenuated here
by its isolated character, and by Heath's uncontradicted testimony that on January 14,
he instructed his supervisors to refrain from coercive conduct vis-a-vis the Union See
KTRH Broadcasting Company, 113 NLRB 125.
30 Hope, who was still In Respondent's employ at the time of the hearing, so testified
He was corroborated in part by Click and Lewis. (I rejected further corroborative testi-
mony as cumulative ) In view of such corroboration, and in view of the somewhat equivo-
cal nature of Heath's denials, I credit such testimony.
At the hearing, I struck allegations in the complaint that certain of the foregoing re-
marks violated Section 8(a) (1) of the Act, as it did not appear to me that, on their face,
such remarks transcended the limits of free speech. However, testimony as to such re-
marks, was received to show Respondent 's union animus.
u Even if, as appears likely, Heath's only purpose in ignoring the Union's request for
recognition was to force the Union to an election to prove its majority status, thereby
affording the Respondent an opportunity to campaign against the Union during the pre-
election period, that purpose would not excuse the refusal to recognize the Union, absent
a good-faith doubt of its majority status. See Fred Snow, et al., d/b/a Snow & Sons, 134
NLRB 709, 710-711, enfd. 308 F. 2d 687, where the Board held that an employer's desire
for an election in the hope that the employees might change their minds in the interim
did not justify a refusal to recognize a union which had obtained authorization cards from
a majority of the employees. Accord: Fleming if Sons of Colorado, Inc., etc., 147
NLRB 1271.
COSMODYNE MANUFACTURING COMPANY 105
recommend that the Respondent be ordered to bargain , upon request, with the Union
as the exclusive representative of the employees in the appropriate unit.
CONCLUSIONS OF LAW
1. All Respondent 's production , maintenance , and stockroom employees at its
Louisville , Kentucky , plant, excluding office clericals , professional employees , guards,
and supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
2. At all times material the Union has been and still is the exclusive representative
of all the employees in the aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
3. By refusing to bargain collectively with the aforesaid labor organization as the
exclusive representative of its employees in an appropriate unit , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
4. By surveillance of union activities , Respondent has interfered with , restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
and has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and the foregoing findings of fact and conclu-
sions of law, and pursuant to Section 10(c) of the National Labor Relations Act, it
is recommended that Respondent , Cosmodyne Manufacturing Company, Louisville,
Kentucky , its officers , agents, successors , and assigns , shall be required to:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages , hours of employment, or
other conditions of employment , with International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths , Forgers and Helpers, AFL-CIO, Local No. 40, as the
exclusive representative of all its production , maintenance , and stockroom employees
at its Louisville, Kentucky , plant , excluding office clericals , professional employees,
guards, and supervisors as defined in the Act.
(b) Engaging in surveillance of union activities among its employees.
(c) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of their right to self-organization , to form , join, or assist the
above-named Union, or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities, except to the extent that such right is affected by the
provisions in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request , bargain collectively with International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local No.
40, as the exclusive representative of all production, maintenance , and stockroom
employees at Respondent 's Louisville , Kentucky, plant, excluding office clericals, pro-
fessional employees , guards, and supervisors as defined in the Act, with respect to
rates of pay, wages , hours of employment , or other conditions of employment, and,
if an understanding is reached , embody such understanding in a signed agreement.
(b) Post at its plant in Louisville , Kentucky , copies of the attached notice marked
"Appendix." 32 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall , after being duly signed by the Respondent 's representative , be posted
by the Respondent immediately upon receipt thereof, and maintained by it for a period
of at least 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by the Respondent to insure that such notices are not altered , defaced , or covered by
any other material.
a2 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 Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of receipt of this Trial Examiner's Decision, what steps the Respondent has
taken to comply herewith.33
33 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
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 National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain, upon request, with International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local
No. 40, as the exclusive representative of all employees in the bargaining unit
described below in respect to rates of pay, wages, hours of employment, or other
conditions of employment, and, if an understanding is reached, embody it in a
signed agreement. The bargaining unit is:
All our production, maintenance, and stockroom employees, excluding
office clericals, professional employees, guards, and supervisors as defined in
the Act.
WE WILL NOT engage in surveillance of union activities among our employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join, or
assist International Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, Local No. 40, or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by the provisos in Section
8(a)(3) of the Act, as amended.
COSMODYNE MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Federal
Office Building, Room 2023, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any questions concerning this notice or compliance with its
provisions.
Higgins Industries , Inc. and International Union , United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, (UAW) AFL-CIO and Higgins Industries Em-
ployees ' Association . Case No. 7-CA-1169. December 15, 196.1
DECISION AND ORDER
On August 14, 1964, Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
150 NLRB No. 25.