Davis & Hemphill, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 282 (N.L.R.B. 1969)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis & Hemphill , Inc. and District No. 12,
International Association of Machinists and
Aerospace Workers , AFL-CIO. Case 5-CA-4238
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 10, 1969, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the Charging Party
filed exceptions to the Trial Examiner's Decision
and supporting briefs, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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 briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations= of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Davis & Hemphill, Inc., Elkridge,
Maryland, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Delete paragraph 1(a) of the Trial Examiner's
Recommended Order and substitute the following:
"(a) Failing or refusing to bargain collectively
concerning rates of pay, wages, hours of
'In adopting the Trial Examiner 's conclusion that a good-faith doubt of
majority status is not justified because less than a majority of the
employees authorized check off of dues, we note also our recent decision in
Terrell Machine Company, 173 NLRB No. 230
'The Charging Party excepts to the Trial Examiner 's failure to
recommend that the unfair labor practice strikers be reimbursed for lost
earnings from the start of the strike However, in the absence of evidence
that they had abandoned the strike and applied for reinstatement , there is
no basis for concluding that these strikers did not voluntarily withhold
their services and hence they are not entitled to backpay as sought.
Sea-Way Distributing, Inc, 143 NLRB 460
employment, or other terms and conditions of
employment with District No. 12, International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of its
employees in the appropriate unit."
2. Delete paragraph 2(a) and substitute the
following:
"(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of its employees with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a written signed agreement. The
appropriate bargaining unit is:
"All production and maintenance employees
including inspectors employed by the Respondent
at its Elkridge, Maryland, plant, excluding office
clerical employees, professional employees,
guards, and supervisors as defined in the Act."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard before me at Baltimore, Maryland , on December 19
and 20, 1968, upon allegations in the complaint issued on
November 26, 1968 (based upon charges tiled on October
30, 1968 ), alleging that the above-named Respondent had
violated Section 8 (a)(1) and (5) of the Act.
Respondent' s answer to the complaint admits
allegations in the complaint sufficient to justify the
assertion of jurisdiction under current standards of the
Board, and to support a finding that the above-named
Charging Party (herein called the Union), is a labor
organization within the meaning of the Act . The answer
denies the commission of any unfair labor practices.
Upon the entire record in this case ,' from observation
of the witnesses and after due consideration of the briefs
filed by the General Counsel, the Union, and the
Respondent , I make the following:
FINDINGS AND CONCLUSIONS
THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Respondent contends that it was justified , upon the
termination of its first collective-bargaining contract with
the Union , in refusing to bargain with the Union which
had been certified by the Board after a secret ballot
election the previous year because of an asserted
good-faith doubt that the Union continued to be the
representative for the purposes of collective bargaining of
a majority of Respondent' s employees in an appropriate
unit . The General Counsel and the Union contend that
Respondent violated the Act by such refusals to bargain
with the Union as the representative of its employees.
'[Certain errors in the transcript have been noted and corrected ]
It is noted that Resp. Exh. 12 , which was offered and is contained in the
exhibit file was not specifically received . In addition to its identification by
Respondent ' s Controller Chandler , the figures therein were largely
stipulated by the parties . The exhibit is hereby received.
177 NLRB No. 21
DAVIS & HEMPHILL , INC. 283
B. The Facts
The Union was certified by the Regional Director of
the Board on July 11, 1967, as the bargaining
representative of an appropriate unit within the meaning
of Section 9(b) of the Act composed of "all production
and maintenance employees including inspectors employed
by Respondent at its Elkridge, Maryland plant, excluding
office clerical employees, professional employees, guards,
and supervisors defined in the Act," after a secret-ballot
election held on June 30, 1967, in which the results were
74 for the Union and 44 against (among a list of 123
eligibles). The parties entered into a collective-bargaining
contract effective from November 15, 1967, until midnight
November 14, 1968. Among the provisions of this
agreement, two are noted as having particular significance
to the present proceeding: First, although there was no
provision requiring membership in the Union, the contract
provided that Respondent would checkoff and pay to the
Union the dues and initiation fees of any employee
submitting an executed authorization in the form
provided. Such authorization was not subject to revocation
for a year or until the termination of the contract,
whichever occurred first, at which time the authorization
could, during a 10-day period, be revoked in writing to the
Respondent and the Union. (See art. IV of G.C. Exh. 6)
Secondly, no newly hired employee became a regular
employee with seniority status until after his first 30 days
of employment. Until that time such employees were
considered probationary employees who could be
dismissed by the Respondent for any reason. (See art.
XIII, sec. 5 of G.C. Exh. 6)
As hereinafter considered in more detail, almost
immediately after the execution of the
collective-bargaining contract, Sherwood Balderson,
president of the Respondent, encouraged Respondent's
supervisors to bring reports to him of employee
dissatisfaction with the Union, assertedly as part of
reports on employee morale generally. Some reports were
received. One employee, Hilda Fromm, who had recently
been replaced as a shop steward for the Union during this
period, had a dispute with Respondent with respect to the
right of Respondent to deduct 2 months dues from a
single paycheck which she received, and wrote Respondent
that she wanted to revoke her checkoff authorization.
Respondent advised her that she could not do this at that
time. It is clear that Balderson was aware of the reason
for Fromm' s request . Fromm testified that she never
advised Respondent's supervisors that she desired to
withdraw from the union, and in fact joined the Union's
strike against the Respondent which was current at the
time of the hearing . There is no other credible evidence of
any attempt by employees to withdraw from the checkoff
or from the Union.
By letter dated September 9, 1968, the Union notified
the Respondent of its desire to modify the current
contract, and requested a date for the start of
collective-bargaining negotiations . By letter dated
September 12, 1968, Respondent advised the Union of its
desire to terminate the current contract on its expiration
date, stating , "The Company has reason to believe that
the Union no longer represents a majority of the eligible
employees."
On October 28, 1968, Respondent 's counsel orally
refused a request that the Respondent begin bargaining
with the Union for a new contract, also on the basis that
the Respondent doubted that a majority of the employees
still desired to have the Union represent them.
On or about November 7, 1968, Respondent posted a
notice to employees in the plant, stating that during the
contract year, "a number" of employees had asked
Respondent to be relieved of the checkoff and advising
that this must be done by registered letter to the Union
and Respondent between November 15 and 24, 1968, if
the employees desired, which was stated to be a "matter
for your individual judgment." No such letters were
thereafter received.
On the evening of November 14, 1968, a union meeting
of Respondent's employees was held at which
Respondent's refusal to recognize and bargain with the
Union was discussed and a strike vote taken. According to
Union Representative O'Brien, who gave the only
testimony on the point, about 60 employees of
Respondent were present and all voted to strike.'
On the morning of November 15, 1968, employees in
the bargaining unit represented by the Union went on
strike. There were 102 employees in the unit at that time.
During the morning, Respondent agreed with Union
Representative O'Brien that it would not operate that day
or over the weekend. When O'Brien requested Balderson,
during this meeting, to negotiate with the Union,
Balderson ignored the request. Since that time, according
to Balderson, Respondent has built up its work force to
about 40-45 employees, of which 8 are new employees, all
of whom cross the Union's picket line daily to come to
work. It would appear that none of the employees who
have signed checkoff authorizations for the Union have
returned to work, nor is there any credible evidence that
any of these is prevented from coming to work by
improper means.'
There is some conflict in the evidence with respect to
whether there were disturbances at the plant entrance
during the early days of the strike - apparently adduced to
show that not all who stayed out favored the strike - but I
find it unnecessary to resolve these disputes in the
testimony. As previously noted, there is no evidence of
recent disturbances of this nature. The numbers on the
picket line have considerably diminished, and 40 or more
employees have been crossing the picket line during the
period before the hearing in this matter, without any
hindrance shown in the record. Under these conditions, it
is manifest that in the absence of special circumstances
that do not appear here, it cannot be inferred that those
'In his brief, the General Counsel, without giving any record reference,
states that the vote was 55 to 1 I have been unable to find the source for
this statement In fact , the General Counsel indicates no transcript support
for any factual statement made in his brief, which seriously detracts from
the purpose and value of the brief
'Balderson testified that he had no calls from anyone who has not
returned to work indicating a desire to return . The testimony of Plant
Superintendent Owens was to the same effect , though at one point he
testified that employee Herman Major (who Owens said joined the Union
after the strike began) told Owens that he was afraid to come in to work
because of concern for his family. It is clear, however, that this did not
refer to Herman Owens, who was one of the original members of the
Union . From the cross-examination of Owens it appears that he had
reference to employee John Major rather than Herman Major. This is
supported by the testimony of Foreman Reichenach. Moreover, other than
Owens' rather uncertain statement, there is no evidence that John Major
joined the Union . Nor, of course, would Owens' testimony be proof of the
truth of the comment John Major is alleged to have made to him.
Likewise Reichenach ' s testimony that employee Marianne Evans told him
that she was afraid to come in is hearsay as to the fact In addition, the
fact that large numbers of employees have been coming into the plant on a
daily basis for some time, without any impediment shown by the record
would indicate that such contention is not credible in the absence of further
evidence as to the basis of such assertion on the part of the individual
concerned
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who remain on strike are other than willing
strikers. This is supported by the fact that the number of
those who remain on strike conforms approximately to the
number who originally voted to go on strike.
1. The asserted doubt of the Union' s status
Respondent's president, Balderson, testified that he
doubted the Union's representative status on September
12, 1968, because, he asserted, immediately prior to that
date he ascertained that less than 50 percent of the eligible
employees on the payroll as of that time had executed
checkoff authorizations in favor of the Union. Balderson
also stated that he was informed that during the 10
months the contract was in effect there had been only 1
month when there had been "as many as 50 percent of the
eligible employees on the check -off." However , Balderson
did not know, and made no effort to ascertain , how many
employees were paying their dues directly to the Union. In
addition, Balderson testified that he relied upon reports
that he had received from foremen concerning expressions
of dissatisfaction which had been made by employees
during the previous period.
The records relied upon: The records submitted by
Respondent and the testimony adduced with respect to
them , particularly that of Balderson , are not such as to
invite confidence in their use for the apparent purposes for
which they were submitted. This may be illustrated by a
list of employees for August, 1968, received in evidence as
Respondent' s Exhibit 5, containing 115 names . The exact
purpose of this document has not been made clear, but it
was patently the basis for Balderson ' s testimony
"estimating" this to be the number of employees in the
bargaining unit on September 12, when he questioned the
Union's majority status. Of this number (115) Balderson
asserted the Union had checkoffs at the time for
"something under 50 percent." However, analysis of the
list on the basis of the testimony of Respondent's
Controller, Chandler, giving the date of hire and
termination of employees in August , reveals that on no
single day in August did Respondent employ as many as
115 employees, and it would appear that at the end of
August Respondent employed approximately 105
employees.' Controller Chandler testified that, in fact, as
of September 12, 1968, the number of employees in the
bargaining unit was 107. Of these it appears that seven
had been employed 30 days or less.'
Similar comment is also applicable to lists of employees
submitted in evidence by Respondent for the months of
September and October, 1968. Thus Respondent's list of
employees hired at any time during October shows 110 in
the bargaining unit, but it would appear that there were
only 105 employed on October 28, when the Union made
its request to bargain, including I employee who was
terminated that day. (Emma Hoerl.) Of these at least
Controller Chandler described the list at one point as a list of "anyone
employed at any time during the month of August," a fact tending more to
confuse than enlighten on the issue of the Union's majority status for
which it was submitted This and Balderson's evident reliance upon the
document to support his asserted doubt of the Union 's majority status are
indicative of the misleading character of the exhibit . It is further noted
that Chandler also, in a document submitted to the General Counsel before
trial, which Chandler explained was in error, informed the General Counsel
that the employment figure for August was 102.
'Frank Fewster- August 19; Alexander Grimes-August 12; Delia
Dunmore - September 9; James Mitchell, Jr.-September 3; Wayne
Straight -September 5, Willard Starliper , Sr-September 12; Theodore
Baker - September 4.
eight had been hired since September 12. (Timothy Cugle,
Cecil Nutty, Cecilia Titus, Tom Mabe, Billy Dowell,
Lillian Mobley, Maurice Sternberg, and Emma Hoerl.)
Respondent's list of employees in the bargaining unit as of
November 15, 1968, shows 102 names, of which at least 5
appear to have been hired within 30 days. (Patricia Hall,
Isabelle Brown, Sandra Lineberg, Larry Mullikin, and
Carl Tedder.)
According to Controller Chandler, as of September 12,
Respondent held 52 checkoff authorizations from
employees in the bargaining unit in favor of the Union.
The record also shows that as of that date five employees
in the unit who were paying their dues directly to the
Union continued in good standing. The record further
shows that as of November 15, when the Union made its
request to bargain, 55 of the employees in the unit were
on checkoff, and 4 were paying their dues directly to the
Union.'
Respondent submitted another document (Resp. Exh.
12), prepared by Controller Chandler early in November,
which proports to show the number of employees in the
unit who were actively employed during one pay period in
each month from November 1967, through November
1968, together with the number of unit employees on
checkoff and the asserted percentages of employees on
checkoff for each month. '
These may be the figures to which Balderson referred in
asserting that his doubt of the Union's status was based in
part upon the percentages of checkoffs to employment for
the 10 months of the collective-bargaining contract,'
although Balderson' s testimony rather understates the
strength of the checkoff figures shown by this exhibit. In
fact, the Trial Examiner is convinced, from observing his
testimony and from the record, that without the use of
these and other documents prepared a considerable time
after the fact, and in some cases for the purpose of
assisting him in his testimony , Balderson has no reliable
recollection of the facts involved.
The compilation contained in Respondent's Exhibit 12
shows that at the beginning of the contract period, the
Union had 43 checkoff authorizations in a unit of 133
employees, and had 55 checkoff authorizations in
November in a unit of 104. (The correct figure for
November 15, previously noted, is 102). The total
employment in the unit is shown to have varied from
month to month, but on the whole tended to decrease in
numbers, as the above figures indicate. The compilation
indicates that the Union was able to secure new
authorizations on a fairly regular basis to replace
members lost by turnover. The figures also show that
since March 1968, the Union checkoff authorizations held
`The number of checkoff authorizations in Respondent 's hands as of
October 28, 1968, is not easily ascertainable since it is not clear whether,
in addition to the 48 authorizations held by Respondent , the Union had
delivered 7 new authorizations which it had obtained prior to that date.
'Counsel for Respondent asserts that the figures for employment each
month could conceivable be higher if an accurate check of its records were
made However, since the document was prepared by Respondent and
submitted in evidence on the issue of the Union 's majority status - and the
employment and checkoff figures were largely stipulated by the parties - it
will be considered herein as part of Respondent ' s asserted basis for
questioning the Union 's majority status
'When asked as to his inquiries into check offs , between September 9 and
12, Balderson stated , "We have tabulated records of that ," referring
clearly to Respondent's Exhibit 12. Chandler , whom Balderson apparently
consulted at the time, asserts that he gave these same figures to
Respondent's attorney in September and I find it unlikely that he gave
Balderson different figures in that same month, though Chandler at one
point indicated the contrary.
DAVIS & HEMPHILL, INC.
by Respondent exceeded 49 percent of the employees in
the unit in every month, except July and October, and
exceeded 50 percent of the employees in 5 of those
months , including August , September , and November
1968 (the percentage figure on the exhibit for November
being obviously in error).
Reports of employee disaffection: As in the case of his
reference to the employee checkoff authorizations,
Balderson's testimony as to the reports he received
concerning employee disaffection with the Union was not
such as to inspire confidence . For the most part he was
unable to recall specifics as to these asserted reports
without reference to a document (a copy of the list of
employees as of November 15) which he had circulated
among his supervisors the day before and the morning of
the hearing , for the purpose of having them reconstruct
for him the employees reported on, to assist him in his
testimony . This led him into a number of palpable errors.
Thus at one time, testifying from this document,
Balderson stated that the notations showed that the
supervisors had reported disaffection of a very large
number of employees as of September 12, and then
quickly corrected himself to say he meant as of November
15. From the document, Balderson testified that the
supervisors had reported to him 121 instances of
disaffection involving 51 employees, including 14 on
checkoff.
However , Balderson testified that he did not know the
comparable figures for the period before September 12.
Later, he asserted that 10 of the employees reported upon
as of that date were on checkoff . When he sought to name
these , however, using the November 15 document, and
expressing some lack of confidence in his memory, he
named some who were not on checkoff as of September
12, and at least one (Lillian Mobley) who was not
employed on that date . In most cases, Balderson indicated
that he did not recall what was reported to him about
these employees who were on checkoff as of September
12, though in two instances he stated that he was told the
employees were unhappy with the Union, though not the
reason . He also testified to his personal contacts with
Hilda Fromm referred to previously . Though Balderson
originally stated that the reports received were of
employee dissatisfaction and "wanting to get out of the
union," he later testified that the reports were of
dissatisfaction only . The testimony of Plant
Superintendent Owens and Foreman Reichenach with
respect to their conversations with employees, both Union
and non -union, though more detailed , is largely consistent
with this last statement of Balderson. Both denied that the
employees made any statements to them to the effect of
desiring to withdraw from the Union . Between the two
witnesses , they named eight employees who were on
checkoff who assertedly voiced various shades of
dissatisfaction with the Union at different times. Some of
these comments were expressed during the course of
disciplinary action by the supervisors against the
employees; some were complaints about friction between
the Union and the non -union employees; some indicated
that the employees thought the Respondent could do more
for them than the Union could . At least two of these
conversations were placed as occurring just after the
election (though Reichenach also stated at one point that
his only conversation with one of these employees,
Marianne Evans, occurred only a week before the hearing;
Reichenach also identified Evans as one of those active in
seeking members for the Union after the contract was
signed). Two of these employees assertedly expressing
285
dissatisfaction with the Union left Respondent 's employ
shortly after September 12 (Reichenach, at one point,
stated that his conversation with one of these , Alice Lee,
occurred after she left).
C. Conclusions
Under well-established principles of law, a union's
status as the statutory representative of the employees in
the bargaining unit , sometimes referred to as the union's
majority status, is conclusively presumed for the first year
after its certification, subject to certain exceptions not
present here, and is presumed to continue thereafter
subject to rebuttal. In the present case, the Union's
representative status was not only not rebutted, but was
affirmatively shown to continue. Thus, it appears that
during the period critical to the complaint, a majority of
the employees in the unit were , in fact, members of the
Union in good standing , and, indeed, on the last day of
Respondent ' s operation before the strike, a majority of
the employees in the unit were on checkoff, as the
Respondent could easily verify.
There is further no substantial evidence that the Union
was losing the support of the employees in the unit. To
the contrary, its ability to secure new members to
compensate for those lost by turnover was amply
demonstrated, and, in fact, is strongly shown by the fact
that at least seven new members were secured between
September 12 and November 15, 1968 (G.C. Exh. 11
indicates 10 new members), and the Union ' s total number
of checkoffs tended to show an increase over its original
43 authorizations.
Indeed , it must be kept in mind that the issue is not
whether, at any transient point in time after the passage
of the certification year, the Union can demonstrate that
it has an absolute majority of members in the unit, but
whether the facts show that it has substantially lost the
support of the unit which was demonstrated by secret
ballot in the election . In the absence of a union-security
clause requiring membership, such support may be
presumed to continue even though all those who vote for
the Union do not become members , unless such support is
rebutted by substantial objective evidence. As was stated
in Gulfmont Hotel Company, 147 NLRB 997, 1001-2,
enfd . 362 F.2d 588 (C. A. 5):
Employees for various reasons unconnected with their
desire to have a union represent them , may fail to
execute checkoff authorizations. There may be some
who prefer , as a matter of principle , to pay their
financial obligations in person ; there may be others who
prefer to decide when and if they can afford to spare
the money for dues and fees; and there may even be
some who are willing to vote for and accept union
representation , but who decide to be free riders and
enjoy the expected benefits of representation without
paying for them at all. Accordingly, although the
voluntary signing of checkoff authorizations by a
majority in the unit may be considered as evidence of a
union 's majority status, the converse is not true.
The character of the asserted reports shown by the
record fall far short of establishing a concerted or
widespread disaffection from the Union. Even members of
the Union may be critical of their representative without
thereby indicating that they are jettisoning the
organization . On the basis of the evidence in this matter,
it is clear that none of the employees asserted that they
were withdrawing from the Union, and, it is further
found , these reports did not furnish a substantial or
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonable basis upon which Respondent could determine
that the Union was losing or had lost its majority support
in the unit.' The fact that the Union had not lost its
support is further indicated by the secret ballot vote
supporting the calling of the strike, and the fact that no
member of the Union had returned to work, or sought to
withdraw his checkoff authorization as Respondent
advised might be done after the termination of the
contract.
Further, Respondent not only made no effort to
ascertain whether any of its employees were members of
the Union in good standing, though not on the checkoff,
but on the basis of the evidence readily available to it
could not reasonably have concluded that the number of
checkoffs indicated that the Union was losing support.
Thus, in addition to the indications noted above showing
that the Union was rather consistently successful in
securing new authorizations, it was patently unreasonable
to conclude , as Respondent did, that the Union's support
was diluted by newly hired, probationary employees. Not
only would it normally be presumed that the Union's
representative status was not affected by turnover of
employees in the unit, see Kentucky News, Incorporated,
165 NLRB No. 115, but the facts show that the Union
was, indeed , successful in securing checkoff authorizations
from a number of the new employees hired just before
September 12 and thereafter. If the number of the
probationary employees were deducted from the total
number of employees in the unit during the period
September through November 1968, the Union's position
as representative of the bargaining unit is further strongly
confirmed.
While, after the end of a certification year, an employer
may be insulated against a charge that it has refused to
bargain in violation of the Act on the basis of an asserted
doubt of the Union's continuing majority status, such
assertion must be made "in good faith" and upon
"reasonable grounds." See Celanese Corporation of
America, 95 NLRB 664, 673; see also N.L.R.B. v.
Gulfmont Hotel Company, 362 F.2d 588 (C. A. 5). On
the basis of the analysis of the evidence made herein,
including my doubts as to Balderson ' s testimony, and
upon the record as a whole, it is found that Respondent
not only did not have reasonable grounds for its assertion
of doubt of the Union's majority status, but that such
assertion was not made in good faith , and that
Respondent therefore, by refusing to bargain with the
Union on and after September 12, 1968, violated Section
8(a)(1) and (5) of the Act,'° and by such conduct caused
and has prolonged the strike of its employees which began
on November 15, 1968, which strike is found to be an
unfair labor practice strike.
'In the special circumstances of this case, I do not beheve that Hilda
Fromm's request to withdraw her checkott which might in other
circumstances be considered the equivalent of a desire to withdraw from
the Union, see Clifton Precision Products Etc, 156 NLRB 555, 565,
fn 25 - indicated her withdrawal of support for the Union, nor do I believe
that the Respondent so understood it In coming to that conclusion, I was
particularly impressed by my observation of Fromm and her testimony, as
well as by the record as a whole.
"In coming to this conclusion . I have considered the cases cited by the
Respondent in its brief, which I find distinguishable from the present case
on their facts, and have also noted and considered Respondent ' s argument
based upon the lack of independent evidence that Respondent engaged in
other violations of the Act However , the fact that Respondent may have
engaged in no other violative conduct would not excuse its refusal to
bargain in the circumstances of this case.
Conclusions of Law
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees including
inspectors employed by the Respondent at its Elkridge,
Maryland, plant, excluding office clerical employees,
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.
4. On September 12, 1968, at all times thereafter, the
Union was, and continues to be the exclusive
representative of the employees in the appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. The Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, which unfair labor practices
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
6. The strike of Respondent's employees which began
on November 15, 1968, was caused and has been
prolonged by Respondent's unfair labor practices and is
an unfair labor practice strike.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, which conduct caused and prolonged the
unfair labor practice strike which began on November 15,
1968, it will be recommended that the Respondent cease
and desist from such unfair labor practices, or other like
or related conduct.
In accordance with the normal practice of the Board,
see Ideal Baking Company , Inc., 172 NLRB No. 120, it
will be recommended that Respondent, upon application,
offer to all its employees who engaged in the strike
beginning November 15, 1968, reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
dismissing , if necessary, any employees hired to replace
the striking employees, and that the Respondent make
whole those strikers who are entitled to reinstatement for
any loss of pay they may suffer by reason of the
Respondent's refusal, if any, to reinstate them, upon
request, by payment to each of them of a sum of money
equal to that which he normally would have earned as
wages during the period beginning 5 days after the date on
which he applies for reinstatement and terminating on the
date of the Respondent's offer of reinstatement, such loss
to be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
The Union has requested that I further find that the
strikers are entitled to be recompensed for the loss of pay
and benefits which they have suffered during the strike as
a result of Respondent's unfair labor practices, and has
filed a vigorous brief in support of that position.
Respondent resists this request. The proposal would
clearly extend the Board's usual remedy in cases of this
nature. However, this case may well be appropriate for a
determination of the propriety of such a remedy.
Respondent's violation here is a direct attack upon a basic
purpose and policy of the Act, which is stated as designed
DAVIS & HEMPHILL , INC. 287
to prevent and mitigate obstructions to interstate
commerce because of stoppages of work occasioned by
labor disputes, "by encouraging the practice and
procedure of collective bargaining and by protecting the
exercise by workers of full freedom of association,
self-organization and designation of representatives of
their own choosing, for the purpose of negotiating the
terms and conditions of their employment or other mutual
aid or protection." Section 1 of the National Labor
Relations Act, as amended, 29 USCA, Section 151. The
violation, as has been found, was deliberate, without
reasonable grounds, not in good faith, and, indeed,
heedless of the facts and their effect on the rights of the
employees involved. The employees' strike in protest of
such conduct was a reasonable reaction to Respondent's
unfair labor practices (though I do not pass upon the
asserted acts of obstruction during the early days of the
strike), and should reasonably have been foreseen by
Respondent as a probable result of its illegal conduct. The
Union argues, in effect, that in these circumstances the
employees should not be required to suffer the losses
occasioned by Respondent's unfair labor practices, and
that Respondent, having caused these losses by its own
purposeful acts in violation of the law, should be required
to restore the employees to the situation which they would
have enjoyed but for these unfair labor practices.
Respondent argues that the Board is without authority to
grant such a remedy. The General Counsel asks only for
the normal remedy which has been granted above.
I have carefully considered these novel arguments and
have concluded that they present a question of policy
which should be best decided by the Board in the first
instance , and for that reason declines to decide the merits
of the request, or the authority of the Board to grant it,
and therefore denies the Union's request.
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of the employees in the above-described
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a written signed agreement.
(b) Upon application, offer to the Respondent's striking
employees reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of pay, in the manner set forth in the section of this
Decision entitled "The Remedy."
(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 amounts of backpay
dues, if any, and the rights of employment under the
terms of this Order.
(d) Post at its plant at Elkridge, Maryland, copies of
the attached notice and marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director
for Region 5, after being signed by an authorized
representative of the Respondent, shall be posted
immediately upon receipt thereof, and be maintained 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 5, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.12
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended , it is recommended that Davis &
Hemphill , Inc., Elkridge , Maryland , its officers , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to bargain collectively concerning
rates of pay , wages , hours of employment , or other terms
and conditions of employment with District No. 12,
International Association of Machinists and Aerospace
Workers , AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit:
All production and maintenance employees including
inspectors employed by the Respondent at its Elkridge,
Maryland plant , excluding office clerical employees,
professional employees, guards, and supervisors as
defined in the Act.
(b) 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 any
labor organization , to bargain collectively through
representatives of their choosing , and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any and all such activities , except to the extent
permitted by Section 8(a)(3) of the Act.
2. Take the following affirmative action found
necessary to effectuate the policies of the Act:
"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."
"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 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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, recognize and bargain with
District No. 12, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclusive
representative of our employees for purpose of
collective bargaining with respect to the terms and
conditions of employment in the following appropriate
unit:
All production and maintenance employees including
inspectors employed by the company at its Elkridge,
Maryland plant , excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act,
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And if an understanding is reached, such understanding
will be written out in a signed contract.
WE WILL NOT, by refusing to bargain with District
No. 12, International Association of Machinists and
Aerospace Workers, AFL-CIO, or in any like or
related manner , interfere with, restrain or coerce you in
your right under the law to form join or assist the
Machinists Union, or in your right to bargain through
representatives of your own choosing , or to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from such activities except as the law may
provide.
It has been found that the Company's employees, on
November 15, 1968, began a strike caused and
prolonged by the Company's unfair labor practices.
Therefore -
WE WILL, upon their application, offer to our
employees who continue lawfully on strike,
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges, dismissing , if necessary, any
employees hired to replace striking employees, and we
will make each employee whole for any loss of pay
suffered as a result of our failure to reinstate the
employees within 5 days after the application to return
to work.
Dated By
DAVIS & HEMPHILL, INC.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office , Federal
Building , Room 1019 Charles Center, Baltimore,
Maryland 21202, Telephone 301-962-2822.