Doran Nut Sales Co.

National Labor Relations Board - Board Decisions

Feb 18, 1953

102 N.L.R.B. 1437 (N.L.R.B. 1953)

DORAN NUT SALES COMPANY 1437
tion," 7 there was no showing as to the Respondent's purpose in seek-
ing the production of the witness' statements other than the general
allegation that it needed the statements for the defense of the case and
the assertion at the hearing that inspection of the statements might dis-
close relevant evidence which had not been adduced at the hearing.
Absent any other showing as to the necessity for the production of
these statements, and in view of the availability at the hearing of the
witnesses whose statements were subpoenaed, we find insufficient rea-
son to grant the Respondent's request that the subpoenas be enforced,
and they will be revoked."
Order
IT IS HEREBY ORDERED that the subpoenas issued by the Trial Ex-
aminer at the hearing in this case, directed to the General Counsel, be,
and they hereby are, revoked.
MEMBER HOUSTON took no part in the consideration of the above
Amendment to Decision and Order.
+ See Hickman v. Taylor, supra, at p. 512.
e See N. L. R. B. v. Quest-Bhon Mark Brassiere Co., supra , at pp. 289-290.
MRS. ALMA DORAN D/B/A DORAN NUT SALES COMPANY and BAKERY
AND CONFECTIONERY WORKERS ' INTERNATIONAL UNION OF AMERICA.
LOCAL No. 240, AFL. Case No. 3O-CA-9222 . February 18, 1953
Decision and Order
On September 5, 1952, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices in vio-
lation of Section 8 (a) (1) and (5) of the Act, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port, and requested oral argument. Inasmuch as the record, in our
opinion, adequately reflects the issues and the positions of the parties,
this request is hereby denied.
The Board:' has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the Respondent's exceptions, and the entire record in this case, and
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Murdock and Peterson].
102 NLRB No. 150.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following modifications :
1. In computing the Union's majority status as of the time of the
request to bargain, the Trial Examiner excluded Ora Lee Graham
Hyland and Clarence Skelton from the unit found appropriate, on
the ground that the former was a "casual" employee, and the latter
had severed his employment relationship with the Respondent prior
to March 18, 1952, the date in question.
On the basis of the facts set forth in the Intermediate Report, which
the record substantially supports, we agree with the Trial Examiner
that Hyland was a "casual" employee at all times herein material,
rather than a regular part-time employee, as the Respondent here con-
tends. In such circumstances, as the Trial Examiner notes, applicable
Board precedent dictates her exclusion from the unit for purposes of
resolving the majority status issue 2 In reaching this conclusion, we
need not decide, as the Respondent suggests, whether Hyland possesses
the "legal status" of an "employee" within the meaning of the Act.
For all we need determine and do here find, is that the interest of a
casual worker, such as Hyland, in the establishment of the uniform
conditions under which work shall regularly be performed, is not
substantial enough to warrant granting to her a voice in the selection
of a representative designated for purposes of bargaining for the es-
tablishment of uniform conditions of regular employment.
However, we do not concur with the Trial Examiner's finding that
Skelton had severed his employment relationship with the Respondent
prior to March 18, 1952. The record discloses (1) that with the ex-
ception of two approved leaves of absence, Skelton's employment prior
to February 1952 had been continuous; (2) that Skelton and Stephens
testified that Skelton requested a leave of absence; (3) that Stephens
granted the request with the understanding that Skelton would notify
the Respondent in about 30 days if he decided not to return; and (4)
that Skelton did in fact return within the specified period. The fact
that Skelton was given a different job upon returning, a fact heavily
relied upon by the Trial Examiner, is not deserving of controlling
weight inasmuch as Skelton was considered by the Respondent as
one of her most experienced employees whose services could be utilized
wherever needed, and one who had previously worked in various de-
partments in the plant.
Accordingly, we find that Skelton was an employee on March 18,
1952. However, in view of our findings with respect to Hyland, the
Union's majority status in the appropriate unit 3 as of March 18, 1952,
7 A. Schottland , Inc., 65 NLRB 851.
3 The parties agree, and we find , that the appropriate unit is that described in the
Intermediate Report
DORAN NUT SALES COMPANY 1439
is established, and our reversal of the Trial Examiner as to the in-
clusion of Skelton does not alter the majority status of the Union as
of this date.4
We conclude, as did the Trial Examiner, that on March 18,1952, and
at all times thereafter, the Union was, and since that date has been,
the duly designated collective-bargaining representative of the Re-
spondent's employees in the unit found appropriate.
2. In finding that the Respondent engaged in independent viola-
tions of Section 8 (a) (1) and (5) of the Act, the Trial Examiner
relied, among other things, upon the conceded facts that, on March 18,
Blish, the Respondent's general manager, and Mrs. Alma Doran, told
the employees that their union activities might result in a shutdown
of the plant, and that those engaged in such activities should "pick up
their pay checks." The Respondent does not here contend that their
statements were not coercive, but claims, rather, that such statements
were fully retracted on the following day and that their coercive effect
was thus fully dissipated and should not therefore form the basis of
unfair labor practice findings.
There is no question that, as the Trial Examiner notes, a large num-
ber of employees were advised by the Respondent or her supervisory
personnel on March 19, that the Respondent "regretted" her remarks
of the previous day, and "apologized" therefor. Although the Trial
Examiner found, in part, that, mere expressions of regret and apology
could not suffice, in terms, to eradicate the coercive effect of the re-
marks in question, we need not dispose of the issue presented on this
ground. We will assume, rather, that in the absence of facts here-
after noted, that the apology and regret may have been sufficient
in terms to be deemed a "retraction." The record shows, however, as
the Trial Examiner notes, that: (1) The Respondent and/or her
agents did not publish the retraction to all the employees affected by
the coercive remarks; and (2) the Respondent's supervisory agents,
principally Dunn and Stephens, committed further unfair labor prac-
tices on the following morning of March 19. Thus, at an assembly
of the female employees called by Dunn on this date, purportedly for
the purpose of conveying Mrs. Doran's "apologies" for the remarks
of March 18, Dunn interrogated the employees as to their union ac-
tivities, and Stephens repeated Mrs. Doran's remarks of the previous
day to the effect that Doran "would close the doors before she would
permit [a union]."
In these circumstances, we are unable to "excuse" the Respondent's
unfair labor practices of March 18, or to hold that the coercive effect
• The inclusion of Skelton increases the number in the unit to 21. As noted in the
Intermediate Report, the Union had obtained authorization cards from 11 employees.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof upon her employees was in any way dissipated.b We con-
clude, as did the Trial Examiner, that to the extent the activities of
Doran, Blish, Stephens, and Dunn, on March 18 and 19, included
interrogation, threats of closing the plant, and an invitation to union
adherents to leave the Respondent's employ if they persisted in their
union activity, the Respondent engaged in interference, restraint, and
coercion of the employees, in violation of Section 8 (a) (1) of the Act.
3. In view of the Respondent's March 18 and 19 activities, detailed
above, following the Union's request to bargain, we find, as did the
Trial Examiner, that the Respondent's refusal of the request pending
a Board election, was not based upon a desire to ascertain the facts
with respect to the Union's majority, but was motivated rather, by
a desire to gain time within which to undermine the Union.6 In these
circumstances, as the Respondent's doubt as to the Union's majority
status did not constitute the real reason for its refusal to bargain,
we conclude, as did the Trial Examiner, that by such refusal, the
Respondent engaged in and is engaging in violations of Section 8
(a) (5) and (1) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Mrs. Alma Doran d/b/a
Doran Nut Sales Company, Denver, Colorado, her agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the ex-
clusive representative of all Respondent's production and maintenance
employees, excluding office, clerical, and professional employees,
guards, and supervisors as defined in the Act.
(b) Interrogating her employees regarding their union member-
ships, activities, and sympathies; informing her employees that she
will not permit a union in her establishment; threatening her em-
ployees with discharge if they become or remain members of the Union;
and threatening to close the plant if the Union successfully organized
her employees.
(c) In any other manner interfering with, restraining, or coercing
her employees in the exercise of the rights to self-organization, to
form labor organizations, to join or assist Bakery and Confectionery
' Compare the situations in which the Board has "gone behind" settlement agreements
it has approved when unfair labor practices are subsequently committed . Its policy in
such analogous situations has been approved by the Supreme Court . Wallace corporation
v. N. L. it . B., 323 US 428 . See, in addition to the cases cited by the Trial Examiner,
N. L. it. B. v. Remington Rand, Inc., 94 F . 2d 862 , at pp. 868-69.
0 New Jersey Carpet Hills, Inv., 92 NLRB 604.
DORAN NUT SALES COMPANY 1441
Workers' International Union of America, Local No. 240, affiliated
with American Federation of Labor, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of mutual aid
or protection as guaranteed in Section 7 of the Act, and to refrain
from all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all the employees in the appropriate unit,
and embody any understanding reached in a signed agreement.
(b) Post at her place of business in Denver, Colorado, copies of
the notice attached to the Intermediate Report and marked "Appendix
A."' Copies of such notice, to be furnished by the Regional Director
for the Seventeenth Region (Kansas City, Missouri), shall, after hav-
ing been duly signed by the Respondent's authorized representative,
be posted by Respondent immediately upon receipt thereof, in con-
spicuous places, including all places where notices to employees are
customarily posted, and maintained by her for at least sixty (60)
consecutive days thereafter. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint that
Respondent violated the Act by granting certain wage increases
without prior consultation with the Union, or without first advising
the Union of her intention to do so, be, and the same are hereby,
dismissed.
° This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof , the words "A Decision and Order." In the event
that this Order is enforced by a decree of the United States Court of Appeals, there shall
be substituted for the words "Pursuant to a Decision and Order ," the words "Pursuant to
a Decree of the United States Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on March 21, 1952,' by Bakery and Confectionery
Workers' International Union of America, Local No. 240, affiliated with American
Federation of Labor, herein called the Union, the General Counsel of the National
1 Unless otherwise noted all dates refer to 1952.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board, herein respectively called the General Counsel and the
Board, by the Regional Director for the Seventeenth Region (Kansas City, Mis-
souri), issued his complaint on June 27, against Mrs. Alma Doran d/b/a Doran
Nut Sales Company, Denver, Colorado, herein called Respondent, alleging therein
that Respondent has engaged in and is engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (1) and (5) and Section 2
(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act.
Copies of the complaint and charge, together with notice of hearing thereon,
were duly served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint in substance alleged
that (1) since on or about March 18, Respondent has interrogated her employees
concerning their union affiliations and has threatened them with reprisals and
made promises of benefits to induce the employees to refrain from assisting the
Union or from becoming or remaining members thereof; (2) since March 18,
Respondent has failed and refused to bargain collectively with the Union as the
representative of her employees in a certain appropriate unit althoug the Union
was on, and since, that date, the duly designated collective-bargaining representa-
tive of said employees ; and (3) on or about March 21, and thereafter, Respondent
has unilaterally granted wage increases to her employees without prior consul-
tation with, or first advising, the Union.
On July 8, Respondent duly filed an answer denying the commission of the
alleged unfair labor practices.
Pursuant to notice, a hearing was held in Denver, Colorado, on July 21, before
the undersigned, the duly designated Trial Examiner. The General Counsel
and Respondent were represented by counsel; the Union by an official thereof.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues was afforded all parties. At the con-
clusion of the taking of evidence, the General Counsel and counsel for Respondent
argued orally. The parties waived the filing of briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Mrs. Alma Doran, doing business under the name and style of Doran Nut Sales
Company, has her principal place of business and offices in Denver, Colorado,
where she is engaged in the sale and distribution of processed and packaged nut
meats. Respondent's annual out-of-State sales exceed $300,000.
Upon the above uncontroverted facts, the undersigned finds that Respondent
is engaged in commerce within the meaning of the Act.
IT. THE ORGANIZATION INVOLVED
Bakery and Confectionery Workers' International Union of America, Local
No. 240, affiliated with American Federation of Labor, is a labor organization
admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In or about the first week of March 1952, Joseph A. Theisen, one of the Union's
paid organizers, began to organize Respondent's employees, and by March 17,
DORAN NUT SALES COMPANY 1443
11 of some 25 nonsupervisory employees , including clericals , had signed union-
authorization cards. That same day , the Union wrote Respondent that it repre-
sented a majority of her employees and requested a meeting to negotiate a col-
lective-bargaining contract.
The next day, March 18, upon receipt by Doran of the Union's letter, her gen-
eral manager, Eugene S. Blish, pursuant to Doran's instructions, assembled the
nonsupervisory male employees and, after informing them of the receipt of the
aforesaid union letter , said , in substance , that Doran had no objections to the
employees joining a union, but those employees desiring to join such an organiza-
tion should go to the office for their paychecks and seek employment in a plant
where a union existed. At about the time Blish was addressing the male em-
ployees, Doran was informing the assembled female employees that her es-
tablishment was no place for a union and those employees who thought other-
wise should "come up and get" their paychecks.
About 10 minutes after Blish had delivered the aforementioned speech to the
male employees , Doran , in the presence of Plant Superintendent Stephens, told
employees Hageman and Aamodt that she had instructed Blish to tell the male
employees , to quote from the credible and undenied testimony of Hageman,
"just exactly what he had" told them, and "she didn't want anybody telling her
how, when, why or where to do things ... Therefore she felt she could offer as
many opportunities as the union could."
According to Harold Davis' undenied and credible testimony, shortly after
Blish had finished addressing the male employees , Doran told him, in Stephens'
presence, that "she understood that some [of the employees ] didn't like what
was said and that Mr. Blish-was-speaking for her, and she would close the
plant down before she would let the union come in and tell her what to do."
Before work had commenced the following day, March 19, Supervisor
Emma Dunn asked employee Regina Anderson why she had signed an authori-
zation card and Anderson replied , to quote from her undenied and credible
testimony , "I had ( sic) told her that I was tired of begging and fighting for
raises and I was going to someone that was going to help us."
Dunn testified that she received a telephone call from Doran during the eve-
ning of March 18 wherein Doran stated that she wanted to apologize to the girls ;
that Dunn inquired if she might do it for Doran in order "to save" Doran from
becoming "exicited again" ; and that during the morning of March 19 , she ten-
dered "Doran 's apologies to the female employees."
Regarding what transpired and what was said at the time Dunn assembled
the female employees after work had started on March 19 , Anderson testified,
and the undersigned finds, that Dunn inquired how many of the assembled em-
ployees had signed cards for the Union ; that when no one made any response
to Dunn's inquiry, she spoke up, "I already told you that I have"; that then
some other employees admitted signing similar cards ; that in reply to Dunn's
inquiry regarding the required union fees, one of the employees told Dunn the
amount ; and that while Dunn was addressing the employees , Stephens came
into the room and commented , after Dunn had completed her remarks, that
"a union was all right in a large place but in a small place like [Doran 's], why,
there wasn 't any place for it , and . . . Mrs. Doran would not have a union there,
that she would close her doors before she would permit it."
Stephens testified that during the afternoon of March 19, Doran, who still
was in a nervous condition , came to him and stated that she desired to speak
to the employees for she feared that Blish's and her remarks of the previous day
had hurt the feelings of some of the employees ; that he replied , "It will be all
right after a while , they will cool down" ; that he and Doran then went to
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where Davis was working and there Doran told Davis, to quote from Stephens'
testimony , "she was sorry that she was all upset and everything and that she
didn't want to hurt nobody's feelings, and whatever you kids do, that is your
business , but she said I don't want to hurt nobody's feelings at all about this,
and she said I hope that you will forgive me"; that he and Doran then went
to Hageman and Doran stated to him, in Aamodt 's presence , practically the same
thing she had stated to Davis.
Stephens further testified that he informed each male employee, in substance,
that Doran regretted her remarks of March 18; that she wanted to apologize to
the employees for making said remarks but he had volunteed to convey her
apologies and state for her that she "didn't want to hurt nobody's feelings around
the plant . . ." and wanted the employees to know, "Whatever they did was
entirely up to them, and that not to worry about nothing, nobody was ever going
to get fired for something like that" ; and that when Davis said that Doran's state-
ment of March 18 sounded to Davis as if the employees would be fired, he replied,
"No, Harold, you weren't fired, because if you was fired you would have been paid
off and I said she merely does not want no hard feelings or any employee to feel
as though they are going to lose their job...."
Hageman testified that on the morning after Blish and Doran had addressed the
employees , Stephens told him, to quote Hageman :
He told me that he had a telephone conversation with Mrs. Doran the
night before, at approximately 11 o'clock, at which time he asked her why
in the world she ever made the statement that she did. He told me that
she said that she didn't know outside that she was very mad at the time... .
he also explained to me that he wanted us to understand that Mr. Blish
wasn 't to blame in this case, that he was sent down there by Mrs. Doran.
The undersigned is convinced , and finds, that Doran , Dunn, Stephens, and
Blish made the statements , summarized above, which Hageman , Davis, and
Anderson attributed to each of them and that said statements are violative of
Section 8 (a) (1) of the Act. The undersigned further finds that the only
retraction of Doran 's or Blish 's March 18 remarks made by Doran or by any
other of her managerial officials was that she regretted making said remarks.
Doran 's feelings respecting the making of said remarks certainly cannot be
construed as a retraction thereof nor can the mere expression of regret for
making them , warrant a finding that thereby the coercive effect of said remarks
was absolved. And the undersigned so finds.
Blish testified that he instructed Stephens to inform the employees, "Mrs.
Doran and myself were unduly excited on the afternoon that we spoke to the
groups and to explain to the employees that at any time they were free to do as
they chose in either joining or not joining the union." Blish further testified,
"in meeting or greeting one of the men going through the plant" he told him,
"I am sorry that there was a misunderstanding in what I told you the other day" ;
and that he recalled making that remark to three named employees.
There is absolutely no credible evidence in the record that Stephens carried out
Blish 's aforementioned instructions . The undersigned finds that the mere fact
that Blish expressed his regrets to a few employees for making the aforesaid
March 18 statements does not cure their unlawful nature nor do said expressions
dissipate their coercive Affect. Furthermore , no representative of management
at any time informed any employee that the blanket invitation to union ad-
herents and sympathizers to quit their employment had been withdrawn or
the threat to close the plant rescinded . The coercive force of these statements
of company policy is clearly not removed by expressions of regrets.
DORAN NUT SALES CONTANY 1445
B. The refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged that all Respondent's production and maintenance em-
ployees, excluding office, professional, and clerical employees, guards, and super-
visors as defined in the Act constituted a unit appropriate for the purposes of
collective bargaining. Respondent's answer denied this allegation on the ground
that she was without sufficient information to form a belief with respect thereto.
Upon the entire record in the case, which clearly indicates that the alleged unit
is the optimum one, the undersigned finds that all Respondent's production and
maintenance employees, excluding office, professional, and clerical employees,
guards, and supervisors as defined in the Act, at all times material herein con-
stituted, and now constitute, a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act, with respect to
grievances, labor disputes, rates of pay, wages, hours of employment, and other
conditions of employment, and that said unit insures to Respondent's employees
the full benefit of their right to self-organization and collective bargaining and
otherwise effectuates the policies of the Act.
2. The majority status of the Union in the appropriate unit
At the hearing herein, there was introduced in evidence a list , presumably
prepared by Respondent, containing the names of 22 persons in Respondent's
employ on March 18. On behalf of the General Counsel there was offered and
received in evidence 11 signed cards expressly authorizing the Union to represent
the signers thereof for collective bargaining. The genuineness of the signatures
on the cards was proved through the credible testimony of Theisen and the
authenticity of the signatures appearing on the cards was not challenged.
The undersigned has compared the names appearing on said cards with the
list of names received in evidence and finds that as of March 18, 1952, 11 em-
ployees in the appropriate unit had signed cards designating the Union their
collective-bargaining representative.
The parties are in agreement with respect to the inclusion in the bargaining
unit of 20 persons whose names appear on the aforesaid list. Respondent, how-
ever, would include, and the General Counsel would exclude, from said unit
Ora Lee Graham Hyland and Clarence Skelton.
With respect to Hyland, the credible evidence discloses that : Prior to the
Union 's request of March 18 for a bargaining conference , she was a production
employee from October 22, 1945, to January 11, 1946, from February 27 to April
5. 1946, and from December 23, 1946, to January 1, 1950; from March 12 to
April 14, 1950, she was an office employee; 2 from June 23 to June 30, 1950, she
was a production employee; she was an office employee from August 11 to October
1, 1950, and from November 17, 1950, to August 17, 1951; and during the 1951
Christmas "period" she was an outside saleslady. On March 24, 1952, Hyland
returned to the plant as a production employee and remained until June 6.
The credible evidence further shows that several years prior to the hearing
herein , Hyland married and thereafter it was agreed by and between Respondent
and Hyland that whenever Respondent needed extra help, Respondent could call
upon her or whenever Hyland needed additional money she would be given
employment by Respondent if work was available , provided, however, such
employment did not conflict with her domestic duties . As a result of this
arrangement , Hyland's employment since her marriage has been casual and
As an office employee, Hyland, besides performing clerical work, acted as saleslady.
250983-vol. 102-53-92
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sporadic, and as a result she neither worked any particular shift nor any
particular number of hours a day or a particular number of days a week. Under
the circumstances, the undersigned finds that Hyland is a casual employee, as
distinguished from a regular part-time employee, whose interest in the condi-
tions of employment at Respondent's plant is not sufficiently substantial to
warrant her inclusion in the unite Accordingly, the undersigned finds, con-
trary to Respondent's contention, that Hyland was not on March 18 an employee
within the unit hereinabove found to be appropriate.
With respect to Skelton, the record discloses that his employment at Respond-
ent's plant commenced in or about 1948. Thereafter, except for several leaves
of absence, prior to February 1952, Skelton worked in various departments of
the plant. He was considered by Respondent one of her most experienced em-
ployees whose services could be utilized wherever needed.
On or about February 22, 1952, Skelton left the plant, on what Respondent
contended was an authorized leave of absence, and returned on or about March
24. The General Counsel, however, contended that Skelton terminated his em-
ployment when he left in February 1952.
Davis testified that prior to Skelton's leaving in February, Skelton was his
helper, that several days after Skelton had left, Stephens told him that it was
his belief that Skelton and Skelton's brother were going into partnership and
engage in a hay-baling venture ; that several weeks later, another helper was
assigned to him ; and that the day prior to Skelton's return to the plant, in
March of this year, Stephens told him that Skelton was back in town and
wanted a job.
Hageman testified that around the first of this year, he spoke to Stephens about
a raise in wages, about having a helper assigned to him, and about his future
prospects with Respondent ; that several weeks later, Stephens came to him and
stated that he had not been able to obtain the desired information from either
Doran or Blish, but that he should "wait a little while" because "Skelton was
leaving and wouldn't be back. Therefore [your] chances of getting what you
want will then be better" ; that Stephens also told him that Skelton and Skelton's
brother were working on "some sort of a hay business" ; and that several days
prior to March 18, Stephens told him that Skelton was back in town and wanted
to return to the plant ; and that Stephens further said that he told Skelton, when
Skelton requested reinstatement, to quote Hageman, "if he had known [Skelton
intended returning to the plant] he could have held the job open for him."
Stephens testified that 4, 5, or 6 years ago, the "first time" Skelton "left us,
I told him to come back and see me, that he would always have a job" at the
plant "whether [Skelton be away] . . . a month or two months or whatever
the case might be"; that after Skelton had been away for about a year he re-
turned and was given employment; that he never asked Skelton or any other
employee who sought a leave of absence the reason for the desired leave ; that
when Skelton again applied' for a leave of absence he asked Skelton the reason
therefor and Skelton replied, "I want to go to Pueblo a for awhile or some-
thing . . . but I want to get a leave of absence because I am coming back and
I would like to have a leave if I could possibly get it. If not, I will go ahead
and keep working" ; that Skelton also said , "I will be back in two or three
months . . . in case I get another job I will call you" ; that when Skelton applied
this year for another leave of absence, he told Skelton, "I'll see, ... I'll see how
business is and all and we will see what [I] can do"; that on this occasion he
8 See Teesdale Manufacturing Company , 71 NLRB 932; A. Schottland, Inc., 65 NLRB
851 ; John Oster Manufacturing Co., 60 NLRB 805.
A When this occurred, Stephens was unable to recall.
5 Skelton's brother resides in Pueblo, Colorado.
DORAN NUT SALES COMPANY 1447
did not ask Skelton the reason for the leave, adding that Skelton did not seem
to be feeling well and seemed nervous and upset and therefore he assumed that
Skelton wanted a rest ; that Skelton told him that he was going to Pueblo and
would probably return in about 30 days ; that he told Skelton, "You have got your
job, you have got your leave, . . . but in case you decide never to come back,
we would appreciate a call in plenty of time so we could get things lined out
again" ; and that after Skelton had replied, "You will get that from me," he
secured Blish's passive permission to grant Skelton the requested leave.
Skelton testified that during his employment with Respondent he had two
approved leaves of absence, one in July 1951 and the other in January or Febru-
ary 1952, and that except for those two breaks his employment has been con-
tinuous; that each time he returned to the plant before the leaves had expired;
that about the middle of February last, he told Stephens that he would like a
leave of absence for 30 days to commence "in the near future" ; that a few days
after making the request, Stephens told him he could go on leave. Skelton further
testified, "I like to drink whiskey and I like to take off once in a while to do it"
and for that reason, together with another reason, he requested the 1952 leave
of absence.
Upon the entire record, coupled with the fact that when Skelton returned to
the plant in March of this year he was not given the job he had when he left but
was given a different one, the undersigned is convinced, and finds, that when
Skelton left Respondent's plant in February 1952, he did so with the intention
of not returning to Respondent's employ. The undersigned also finds that
Stephens told Davis and Hageman, as they credibly testified, that Skelton in-
tended to go into a business venture with his brother ; that Skelton visited Pueblo
for the purpose of furthering said intention ; that Skelton informed Stephens,
before Skelton left in February, of said intention and of his decision to terminate
his employment with Respondent. Under the circumstances, the undersigned
finds that Skelton was not an employee within the meaning of the Act, on
March 18, 1952, and accordingly Skelton should not be considered as being in
the bargaining unit as of that date.
The undersigned further finds that on March 18, 1952, the Union was, and since
that date has been, the duly designated collective-bargaining representative of
Respondent's employees in the unit found appropriate. Therefore, pursuant to
Section 9 (a) of the Act, the Union was, and still is, the exclusive representative
of all the employees in such unit for the purposes of collective bargaining in
respect to grievances, labor disputes, rates of pay, wages, hours of employment,
and other conditions of employment.
3. The refusal to bargain
As found above, the Union wrote Respondent on March 18 that it represented
a majority of her employees and requested an appointment to discuss a collec-
tive-bargaining contract. On March 24, 3 days after the charge herein had been
filed, Respondent replied that she did not know whether or not the Union's
claim of representative status was correct and suggested that the Union prove
its claim through the Board's processes.
Without first informing or consulting the Union, the Respondent, on June 6,
1952, raised the wages of eight employees within the appropriate unit.
4. Concluding findings as to the refusal to bargain
Uncontroverted credible evidence establishes that as of March 18, when the
Union sought to fix a time with Respondent to negotiate a collective-bargaining
agreement on behalf of her production and maintenance employees, the Union,
in fact, had been designated by a majority of said employees as their bargaining
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative. Under those circumstances, Respondent's refusal to deal with
the Union was a clear violation of Section 8 (a) (5) of the Act, unless Respondent
at that time had a bona fide doubt that the Union represented a majority.
Doran's and Blish's conduct immediately followed the receipt of the Union's
letter requesting Respondent to bargain collectively fully reveal Respondent's
want of good faith. Upon receipt of said letter, Doran voiced no challenge that
the Union's claim of majority status was not well founded but instead she and
Blish forthwith informed the employees that if they desired to be represented
by a union they should pick up their paychecks and seek employment elsewhere.
In addition, Stephens, the following day, informed some female employees, "Mrs.
Doran would not have a union there, that she would close her doors before she
would permit it." Such actions upon Respondent's part, upon being advised of
the Union's claim of majority representation, in embarking on a campaign to
destroy employee support for the Union through means proscribed by the Act,
demonstrates that her suggestion that the Union "request certification through
the procedure established under the National Labor Relations Board" was not
based upon any desire to resolve a bona fide doubt of the Union's majority.
Normally, an employer is not held in violation of the Act, if he in good faith
questions the union's majority status and asked to have the matter determined
by an election, since that is a conclusive means of establishing the extent of the
union's strength. But here, Respondent resorted to serious unfair labor prac-
tices, the effect of which would have prevented the election from resolving the
issues of which Respondent purportedly was in doubt. Respondent thereby de-
stroyed the efficacy of the very method it was insisting upon. Doran's conduct
and those of her managerial officials clearly disclose that her demand for an
election was solely for the purpose of delay. Under the circumstances, Respond-
ent "has transgressed the bounds of permissible conduct to a sufficient extent to
permit . . . [a conclusion] that [her] refusal to bargain was as ill-intentioned
6as [her] other actions."
The Board and the courts have repeatedly and uniformly held where, as here.
an employer withholds recognition from a union which is entitled to it under
the Act until its status is established in an election, and at the same time pro-
ceeds by unfair labor practices to undermine and destroy said union, that it
reasonably may be concluded that said employer's refusal to bargain stems not
from an honest doubt of the union's status but rather from a desire to avoid his
obligations under the Act z
Respondent contended further that her refusal to bargain did not violate the
Act, since she merely voiced her right to demand an election. This contention
is without merit under the circumstances disclosed by this record. Further-
more. it is well established that neither an employer nor his employees have the
right to demand that the Board conduct an election for the Congress left to the
Board the discretion to determine how and when the bargaining status of an
employee representative should be ascertained! This is especially true in this
case since Respondent did not voice a desire to have the question of majority
4 Joy Silk Mills, Inc. v . N. L. R. B ., 185 F. 2d 732 ( C. A. D. C.). See also Franks Bros.
Co. v. N . L. R. B., 321 U . S. 702 ; N. L. R. B . V. Consolidated Machine Tool Corp., 163 F.
2d 370 (C. A 2) ; N. L. R. B. v. Federbush Co., Inc., 121 F. 2d 954 (C. A. 2) ; N. L. R. B.
v. Louisville Refining Co., 102 F. 2d 678 (C. A. 6).
* See N. L. R. B. v. Morris P. Kirk d Son, 151 F. 2d 490 (C. A, 9) ; N. L. R. B. v. Con-
solidated Tool Corp., supra ; N. L. R. B . v. Remington Rand, Inc., 94 F. 2d 61 (C. A. 2.) ;
N. L. R. B . v. Chicago Apparatus Co., 116 F . 2d 756 ( C. A. 7) ; Joy Silk Mills v. N. L. R. B.,
supra.
D N. L. R . B. v. Falk Corp., 308 U . S. 453 ; N. L. R. B . v. Waterman S. S. Corp ., 309 U. S.
206; Southern S. S. Co . V. N. L. R . B., 316 U . S. 31; N. L. R. B. v. Garfunkel, 136 F. 2d
256 (C. A. 2).
DORAN NUT SALES COMPANY 1449
status determined by a Board -conducted election until after the Union had
filed an unfair labor practice charge. Obviously, the Regional Director cannot
be compelled to conduct an election if there exists some doubt that the results
thereof will not reflect the employees' free choice, and thug permit Respondent
to benefit by her own wrongdoing. In N. L. R. B. v. Samuel J. Kobritz, d/b/a
Star Beef Company, 193 F. 2d 8 (C. A. 1), the court said regarding a case very
similar to the instant proceeding :
It is true that the union, upon meeting such a refusal to bargain, first
adopted the course of filing a representation petition for certification .. .
Later this representation petition was dismissed at the union's own request.
But the right of employees to bargain collectively through an exclusive bar-
gaining representative is not conditioned upon an antecedent certification by
the Board where, as here, the majority status of the union is clearly estab-
lished otherwise, and the employer has no bona fide doubt of such majority
status, but seeks to delay bargaining negotiations while resorting to various
coercive tactics designed to dissipate the union majority support. National
Labor Relations Board v. Reed & Prince Mfg. Co., 118 F. 2d 874, cert. den.
313 U. S. 595; National Labor Relations Board v. National Seal Corp., 127
F. 2d 776; National Labor Relations Board v. Franks Bros. Co., 137 F. 2d
989, affd. 321 U. S. 702; National Labor Relations Board v. Harris-Woodson
Co., 162 F. 2d 97 (C. A. 4)
Upon the entire record in the case, the undersigned finds that on March 24,
1952,10 and at all times thereafter, Respondent failed and refused to bargain
collectively with the Union as the duly designated representative of the majority
of the employees in the unit hereinabove found appropriate, in violation of
Section 8 (a) (5) of the Act, thereby interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
The complaint alleged that on or about March 18, and at various times there-
after, Respondent, in violation of Section 8 (a) (5) and (1) of the Act, uni-
laterally granted wage increases to her employees without prior consultation
with, or without first advising, the Union. Respondent's answer averred that,
after informing the Board of her intention, Respondent raised the wages of 8
employees on June 6 ; and that the increases were made pursuant to a company
policy and practice of granting wage increases at stated periods to probationary
employees.
The undersigned finds that the evidence is insufficient to support the allega-
tions of the complaint that said increases were granted for the purpose of inter-
fering with the employees' self-organizational rights or that they were granted
as favors or allurements to induce the employees to withdraw from, or to reject,
the Union, or for any other unlawful purpose.11 Accordingly, the undersigned
will recommend the dismissal of these allegations.
I4. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent, described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair
See also Franks Bros. Co. v. N. L. R. B., supra; N. L. R. B . v. Bradford Dyeing Assn.,
310 U . S. 338 ; International Assn. of Maehinssts V. N. L. R . B., 311 U. S. 72 ; D. H. Holmes
v. N. L. R. B., 179 F 2d 876 (C. A. 5).
10 The date of Respondent's reply to the Union 's letter of March 18.
11 See Artcraft Hosiery Co ., 78 NLRB 333 ; Loudonville Milling Co, 79 NLRB 3014; (fray
Drug Stores, Inc., 79' NLRB 1140.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices , tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , violative
of Section 8 (a) (1) and ( 5) of the Act , it will be recommended that she cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent on March 18, 1952, and at all times thereafter,
has refused to bargain collectively with the Union as the representative of the
majority of the employees in an appropriate unit, the undersigned will recom-
mend that Respondent , upon request , bargain collectively with the Union as the
exclusive statutory representative of all the employees in the unit heretofore
found appropriate , and if an agreement is reached , embody such understanding
in a signed agreement.
Having found that there is insufficient evidence in the record to sustain the
allegations of the complaint that the wage increases were granted in violation
of the Act, the undersigned will recommend that those allegations of the com-
plaint be dismissed.
The unfair labor practices found to have been engaged in by Respondent are
of such a character and scope that in order to insure the employees here in-
volved their full rights guaranteed by the Act it will be recommended that
Respondent cease and desist from in any manner interfering with, restraining,
and coercing her employees in their right to self-organization.
Upon the basis of the foregoing findings of fact, and upon the record as a
whole, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Bakery and Confestionery Workers' International Union of America, Local
240, affiliated with American Federation of Labor, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All Respondent 's production and maintenance employees , excluding office,
clerical , and professional employees, guards, and supervisors as defined in the
Act, constitute , and during all times material herein constituted , a unit ap-
propriate for the purposes of collective bargaining within the meaning of Sec-
tion 9 ( b) of the Act.
3. Bakery and Confectionery Workers' International Union of America, Local
No. 240, affiliated with American Federation of Labor, was on March 17, 1952,
and at all times thereafter has been , the exclusive representative of all the
employees in the above -described appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 ( a) of the Act.
4. By refusing on March 24 , 1952, and at all times thereafter , to bargain
collectively with the Union , as the exclusive representative of all the employees
in the appropriate unit, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (5) of the Act.
5. By interrogating her employees regarding their union memberships, activi-
ties, and sympathies , by informing her employees that she would not permit
a union in her establishment , by threatening her employees with discharge if
they remained or became members of the Union , by threatening to close the
plant if the Union successfully organized the employees , thereby interfering
with , restraining , and coercing her employees in the exercise of the rights guar-
anteed in Section 7 of the Act , Respondent has engaged in and is engaging in
unfair labor practices , within the meaning of Section 8 (a) (1) of the Act.
DORAN NUT SALES COMPANY 1451
6. The aforesaid unfair labor practices are unfair labor practices , within
the meaning of Section 2 (6) and (7) of the Act.
7. By granting certain wage increases Respondent did not violate the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
I WILL bargain collectively upon request with BAKERY AND CONFECTIONERY
WORKERS' INTERNATIONAL UNION OF AMERICA, LOCAL No. 240, affiliated with
AMERICAN FEDERATION OF LABOR, as the exclusive representative of all em-
ployees in the bargaining unit described herein, with respect to grievances,
labor disputes, wages, rates of pay, hours of employment, and other condi-
tions of employment, and if an understanding is reached, embody such un-
derstanding in a signed agreement. The bargaining unit is :
All production and maintenance employees, excluding office, clerical,
and professional employees, guards, and supervisors as defined in the
Act.
I WILL NOT, nor will my managerial officials, interrogate any of my em-
ployees regarding their union affiliations, activities, or sympathies ; inform
my employees that I will not permit a labor organization in my establish-
ment ; threaten to discharge any employee if they join or remain a member
of the above-named union ; or threaten to close my plant if the union suc-
cessfully organizes my employees.
I WILL NOT interfere with the union's efforts to organize my employees, or
refuse to bargain with the union as the exclusive representative of the em,
ployees in the above-described bargaining unit, or in any other manner in-
terfere with, restrain, or coerce my employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist BAKERY
AND CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, LOCAL
No. 240, affiliated with AMERICAN FEDERATION OF LABOR, or any other labor
organization , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any and all
of 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 in Section 8 (a) (3) of the National Labor Rela-
tions Act.
All my employees are free to become or remain members of the above-named
union or any other labor organization except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act.
MRS. ALMA DORAN D/B/A
DORAN NUT SALES COMPANY,
Employer.
By ---------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.