E.v.Prentice Machine Works, Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1958

120 N.L.R.B. 417 (N.L.R.B. 1958)

E. V. PRENTICE MACHINE WORKS, INC. 417
E.• V. Prentice Machine Works, Inc. and International Associa-
tion of Machinists, District Lodge No. 24 , AFL-CIO. Case No.
36-CA-770. April 15, 1958
DECISION AND ORDER
On August 12, 1957, Trial Examiner Herman Marx issued his In-
termediate Report 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1), (3), and (5) of the Act. Like the Trial Examiner,
we reject the Respondent's contention that its refusal to recognize the
Union was based upon a good-faith doubt as to the Union's majority
.representation. The Respondent's bad faith in refusing to bargain is
particularly demonstrated by the events on February 22, 1957.
Within 3 hours after the Union presented its bargaining request that
day, Respondent terminated the employment of 10 of the 13 em-
ployees in the bargaining unit. The employees selected for termina-
tion were those who the Respondent had ascertained by unlawful in-
terrogations earlier that day were favorably disposed toward the
Union. The evidence clearly establishes that the Union represented
a majority of the employees in the requested appropriate bargaining
unit when it claimed recognition. Only after Respondent's efforts
thus to dissipate the Union's majority did Respondent formally ad-
vise the Union, by letter dated March 5, 1957, that it desired a Board
election to test the question of the Union's majority. At this point,
however, Respondent's own unfair labor practices rendered a free
election impossible.'
I Joy Silk Mills, Inc v N. L. R . B , 185 F 2d 732 (C A, D. C) ; N L. R. B, v. Trimft
of California , Inc., 211 F . 2d 206 (C A 9) ; Pyne Moulding Corporation , 110 NLRB 1700;
Summst M2n4ng Corporation, 119 NLRB 1668.
120 NLRB No. 04.
483142-59--vol 120-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The record indicates the possibility that subsequent to the com-
mission of the discriminatory conduct by Respondent on February 22,
1957, its business might have suffered an economic decline, and that
some of the employees discriminated against on February 22, 1957,
might have been affected in a reduction of operations even absent the
Respondent's unfair labor practices. Under these circumstances, we
shall order that the Respondent offer Richard L. Wurth, Frederick D.
Buslach, Paul J. Galipeau, Ralph H. Strunk, Melvin L. Eskin, Louis
C. Schnell, and Wayne H. Schnell immediate and full reinstatement'
to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and in the event that
there is insufficient work for all such employees entitled thereto, the
Respondent shall dismiss all persons newly hired subsequent to the Re-
spondent's discriminatory action on February 22, 1957. If there is not
then sufficient work available for the remaining employees including
those offered reinstatement, all available positions shall be distributed
among them without discrimination because of union membership or
activity; in accordance with the system of seniority or other nondis-
criminatory practice heretofore applied by the Respondent in the con-
duct of its business. Respondent shall place those employees, if any,
for whom no employment is available after such distribution on a pref-
erential list, with priority in accordance with such system of seniority
or other nondiscriminatory practice heretofore applied by the Re-
spondent in the conduct of its business, and thereafter offer them rein-
statement as such employment becomes available and before other per-
sons are hired for such work. The possibility that 1 or more of the
10 employees discriminated against on February 22, 1957, might have
been laid off in a subsequent reduction in work force, even absent the
Respondent's unfair labor practices, will be taken into consideration
in determining the back pay due these employees, in compliance with
our Order.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, E. V. Prentice
Machine Works, Inc., Portland, Oregon, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Association
of Machinists, District Lodge No. 24, AFL-CIO, as the bargaining
representative of all the production and maintenance employees em-
ployed by it at its plant in Portland, Oregon, excluding office, pro-
2 As Robert M. Lavadore, Ernest H. Pettit , and Hans 0. Pedersen were reemployed by
the Respondent betore the hearing herein, they are not included in our reinstatement
order.
E. V. PRENTICE MACHINE WORKS, INC . 419
fessional, and clerical employees, electronics engineers, draftsmen,
guards, and supervisors as defined in the Act.
(b) Discouraging membership of its employees in any labor organi-
zation, or encouraging membership in any such organization, by dis-
criminatorily discharging or laying off any employee, or in any other
manner discriminating against any employee in regard to his hire,
tenure, or any other term or condition of employment, except as author-
ized by Section 8 (a) (3) of the Act.
(c) Interrogating any employee, or seeking information from him,
with respect to his membership or interest in, sympathy for, or activi-
ties on behalf of, any labor organization, or with regard to the mem-
bership or interest in, sympathy for, or activities on behalf of, any
labor organization, by any other employee, in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1)
of the Act.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to join or assist International
Association of Machinists, District Lodge No. 24, AFL-CIO, or any
labor organization affiliated with it, to bargain collectively through
representatives of their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all 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 Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Asso-
ciation of Machinists, District Lodge No. 24, AFL-CIO, as the repre-
sentative of the employees in the appropriate unit described above,
with respect to their rates of pay, wages, hours of employment, and
other conditions of employment, and, if an agreement is reached,
embody it in a signed contract.
(b) Offer to Richard L. Wurth, Frederick D. Buslach, Paul J. Gali-
peau, Ralph H. Strunk, Melvin L. Eakin, Louis C. Schnell, and Wayne
H. Schnell immediate and full reinstatement to their respective
former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make each of
them, and Robert M. Lavadore, Ernest H. Pettit, and Hans O. Peder-
sen, whole in the manner, according to the method, and under the
terms set forth in section V of the Intermediate Report entitled "The
Remedy," as modified in our Decision and Order herein.
(c) Preserve and make available to the National Labor Relations
Board or its agents upon request, for examination and copying, all
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll records, social-security payment records, timecards, personnel
records and reports, and all other records necessary or appropriate
to an analysis of the amounts of back pay due and the rights of
employment under the terms of this Order.
(d) Post'in conspicuous places, including all places where notices
to employees are customarily posted, at its principal place of business
in Portland, Oregon, copies of the notice attached to the Inter-
mediate Report marked "Appendix A."' Copies of said notice, to
be furnished by the Regional Director for the Nineteenth Region of
the National Labor Relations Board, shall, after being signed by a
duly authorized representative of E. V. Prentice Machine Works,
Inc., be posted by it immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in such conspicuous
places. Reasonable steps shall be taken by E. V. Prentice Machine
Works, Inc., to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, as to what steps E. V. Prentice
Machine Works, Inc., has taken to comply therewith.
i This notice is to be amended by substituting foi the words "The Recommendations
of a Tiial Examiner" the voids "A Decision and Order " In the event that this Order
is enforced by a decree of a 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
On February 25, 1957, International Association of Machinists, District Lodge
No. 24, AFL-CIO (also referred to below as the District Lodge) filed a charge
with the National Labor Relations Board (also designated herein'as the Board)
against the Respondent , E. V. Prentice Machine Works, Inc. The District Lodge
filed an amendment to the charge on March 6, 1957. Based upon the charge, as
amended , the General Counsel of the Board issued a complaint on April 12, 1957,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of the National Labor Relations Act, as amended (61
Stat. 136-163), also referred to herein as the Act. Copies of the charge, the amend-
ment thereof , and the complaint have been duly served upon the Respondent.
With respect to the claimed unfair labor practices , the complaint alleges, in sum,
that: The District Lodge is now, and was on February 22, 1957, the collective-bar-
gaining representative of a majority of the Respondent's employees in a unit appropri-
ate for the purposes of collective bargaining ; on the said date the District Lodge
requested the Respondent to bargain collectively with it as the representative of the
employees in the said unit; the Respondent refused so to bargain , thereby violating
Section 8 (a) (5) of the Act ; on the said date, also, and following the bargaining
request, the Respondent , in violation of Section 8 (a) (3) of the Act, laid off or dis-
charged 10 employees (named in the complaint) i "because of their membership in,
and activities on behalf of," the District Lodge; and by its activities described above,
and the conduct of its officers and agents , on the said date, in interrogating, and
making various statements to, its employees , the Respondent interfered with,
restrained , and coerced employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby violated Section 8 (a) (1) of the said Act.
'The employees named in the complaint are Frederick D Buslach,Melvin L. Eakin,
Paul Joseph Calipeau, Robert -M Lavadore (so identified in the testimony, but as Lavadure
in the complaint ), Hans O. Pedersen , Ernest H Pettit, Louis C Schnell, Wayne H.
Schnell, Ralph H. Strunk , and Richard L. Wurth.
E. V. PRENTICE MACHINE WORKS, INC. 421
The Respondent has filed an answer which , in substance , denies that it engaged
in the alleged unfair labor practices imputed to it. As an affirmative defense, the
answer alleges that the Respondent "laid off certain employees because of economic
and business reasons solely ," and that "as conditions have changed certain of said
employees have been recalled to work and it is expected that others will be recalled."
Pursuant to notice duly served upon all parties , a hearing was held before me,
as duly designated Trial Examiner, on April 30, May 1, and May 2, 1957, at Port-
land, Oregon. The General Counsel and the Respondent were represented at the
hearing and participated therein through counsel . All parties were afforded full
opportunity to be heard , to examine and cross -examine witnesses , adduce evidence,
file briefs , and submit oral argument . Briefs filed by the General Counsel and the
Respondent since the close of the hearing have been read and considered.
Upon the entire record, and from my observation of the witnesses , I make the
findings of fact set forth below.
FINDINGS OF FACT
1. NATURE OF THE RESPONDENT 'S BUSINESS , JURISDICTION
The Respondent is an Oregon corporation . It maintains its principal office and
a plant in Portland , Oregon , where it is engaged in the business of manufacturing
machines used in the production of plywood and other timber products.
During the year 1956 , the Respondent manufactured and sold machines valued
in excess of $500,000 , selling the greater portion of its output , in Oregon, to an
affiliated corporation , identified in the complaint as E. V. Prentice Co., Inc. (and
described below , for convenience of reference , as the Sales Company ), which has
the same stockholders and directors as the Respondent . ( The corporate name of
the Sales Company is stated in various ways in the record It is unnecessary to
determine which of the variants is correct , as the precise corporate name of the
Sales Company does not materially affect the issues. ) In 1956, from the products
purchased by it from the Respondent, the Sales Company sold and shipped machines
valued in excess of $200,000 to customers located at points outside the State of
Oregon.
The Respondent is, and has been at all times material to this proceeding , engaged
in interstate commerce within the meaning of the Act. Accordingly, the Board has
jurisdiction over the subject matter of this proceeding.
It. THE LABOR ORGANIZATION INVOLVED
The District Lodge " is the parent organization" of three local labor organizations,
described in the record as "local lodges." One of these is variously identified in
the record as Local Lodge 63 and Willamette Lodge No. 63 (and will be referred to
below as Local 63). Local 63 admits individuals employed by the Respondent to
membership.
The local lodges elect the "head representative of the District (Lodge ) by ref-
erendum ballot." They also elect delegates to the District Lodge. These delegates
represent their local lodges in the affairs of the District Lodge, and conduct the
business of the latter . Among other functions , the District Lodge negotiates and
signs collective -bargaining agreements, for and on behalf of the 3 local lodges, with
employers located in 5 counties of Oregon, including that in which Portland is
situated . As the complaint alleges, and the answer admits, the District Lodge is
now, and has been at all times material to this proceeding, a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The affairs of the Respondent and its affiliated Sales Company are directed and
managed by several brothers whose surname is Prentice . These include David
V., Robert T., and Thomas Prentice . Although the brothers follow the practice of
consulting with each other on many matters , each performs one or more special
functions in the conduct of the affairs of one or the other, or both , of the enter-
prises. Thus David was manager of the Respondent 's production operations until
about December 1956 when the brothers decided that he should devote all of his
time to selling (presumably for the Sales Company ), and he was succeeded,
as manager , by Robert who was serving in that capacity on February 22, 1957,
the date of the alleged discrimination described in the complaint.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's business is conducted in several buildings located near each
other in Portland. One building houses what is described in the record as "the
shop" where the Respondent, in the main , manufactures its products. A shed
built in 1956 as an extension of the shop provides additional production facilities.
A structure adjacent to the shop building houses the Respondent's principal office
facilities and engineering department, and is described in the record as the "main
office" building. Another adjacent building serves as the Respondent's "general
warehouse." The Respondent has additional warehouse space in a building which
is rented on a monthly basis and is located across the street from the other struc-
tures. The respondent has in the past also used the rented building for manu-
facturing operations.
The complaint alleges, and the answer denies, that the Respondent's produc-
tion and maintenance employees (with certain exclusions which need not be stated
at this point) constitute an appropriate collective-bargaining unit. A resolution of
the issue requires some description of the duties of the Respondent's employees as
of February 22, 1957, the date, as will appear in detail later, upon which the District
Lodge requested the Respondent to bargain, and consideration of the extent to
which a community of interest in the area of collective bargaining exists among
the Respondent's employees.
As of February 22, 1957, there were 19 employees on the Respondent's payroll.
Of these, 14 in various occupational classifications worked in the building which
houses the shop. Thirteen of these employees were, on February 22, and had been
for a substantial period prior thereto, engaged in the fabrication "of equipment
other than electronic" (to quote a stipulation of the parties). For convenience
of reference, the employees so engaged will be referred to below as shop employees.2
The remaining employee of the Respondent who works in the building housing the
shop is named Russell G. Brant, and is classified by the Respondent as an "elec-
tronics engineer." Brant designs and builds generators, works by himself in a
room separate from that in which the shop employees, in the main , perform their
work, has no production contact with these employees, and is employed at a
monthly salary, unlike the shop employees who are paid at hourly rates.
The other five employees on the payroll mentioned above are stationed and
primarily perform their work in the main office building. Three of these, Edwin
M. Heth, Donald D. Adams, and Stephen M. Mahoney, are engineers, have had
scholastic training as such, perform work for the Respondent, as engineers, which is
predominantly intellectual in character, are paid on the basis of monthly salaries,
and are clearly professional employees In addition, Heth, who has the title of
chief engineer, responsibly directs the work of various employees in engineering
and related duties, has effective authority to make recommendations concerning
the hire and discharge of employees, and is a supervisor within the meaning of
the Act. On February 22, 1957, and for some time prior thereto, Mahoney, in
addition to his duties as an engineer, similarly was a supervisor within the purview of
the Act, for during that period he was acting shop superintendent and in that ca-
pacity was vested with authority to direct the work of the shop employees. Of
the two remaining employees in the main office buildings, one, Irmgard Zorn,
performs drafting work, compen^able at hourly rates, under the direction of Heth and
Adams, and the other, Edward C. McCormick, is classified as a purchasing agent
and has the function of purchasing equipment and office supplies for both the
Respondent and the Sales Company.
The appropriate unit to be defined below may not of course, include supervisors
within the meaning of the Act. In addition, the professional engineering personnel
(Heth, Mahoney, and Adams) and Zorn, who performs technical work in close
association with them, have a community of interest, and perform distinctive work,
which clearly sets them apart from the shop employees. McCormick should also
not be included in a bargaining unit with the shop employees for he is a management
representative, concerned, in the final analysis, with office matters, and has no com-
munity of interest in the area of collective bargaining with the shop employees.
The evidence does not clearly establish whether Brant, the employee classified by
the Respondent as an electronics engineer , is a professional employee, but the fact
that he performs work marke:fly dist,nguish-d from that of the shop employees,
works by himself in a separate room, without any production contact with the
shop employees, and is paid on a different basis from the others employed in the
building housing the shop, leads me to the conclusion that he has no substantial
community of interest with the shop employees in collective-bargaining matters,
and should not be included in a bargaining unit with those employees.
2It may be noted that according to the stipulation, I of the 13 engaged in the fabri-
cation "of equipment other than electronic" is an electrician named Arthur W. Rickford.
E. V. PRENTICE MACHINE WORKS, INC. 423
Another factor which distinguishes the shop employees from the others is that
the Respondent has, since the spring of 1956, dealt with the shop employees as a
separate group, through a welfare committee, which was established at the instance
of David Prentice, and upon which only the management and the shop employees
were represented. The welfare committee followed the practice of meeting once
a month, at the call of one or another of the Prentice brothers, immediately prior
to the monthly meeting of the Respondent's board of directors. The committee
discussed such matters as the improvement of safety and washroom conditions
and the employees' pay periods. (In passing, it may be noted for future reference
below, that at the instance of the welfare committee, the Respondent established
a practice of permitting employees to draw a portion of their salary each Friday
between their semimonthly paydays. The checks covering such intermediate pay-
ments are described in the record as "draw checks," and the day upon which such
payments are made is referred to in the testimony as "draw day.") The fact that
the Respondent itself has dealt with the shop employees as a group separate and
apart from other employees, whether or not such dealings may technically be termed
collective bargaining, contributes weight to the conclusion that those who perform
the work of the shop employees at the Respondent's plant constitute an appropriate
collective-bargaining unit.
For the reasons stated above, all production and maintenance employees employed
by the Respondent at its plant in Portland, Oregon, excluding office, professional,
and clerical employees, electronics engineers, draftsmen, guards, and supervisors
as defined in the Act, constitute, and have constituted at all times material to the
issues in this proceeding, a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act 3
On February 22, 1957, four of the shop employees (Richard L. Wurth, Frederick
D. Buslach, Louis C. Schnell, and Wayne Schnell) were members of Local 63, and
had held such membership for some time prior to that date. Another shop employee,
Arthur W. Rickford, who is an electrician, was, on February 22, a member of an
electricians ' union (unidentified in the record).
On the evening of February 20, 1957, Wurth and 2 or 3 other shop employees,
who were then members of Local 63, attended a meeting of that organization; told
its business representative, George Salmon, that the shop employees were interested
in union organization and wished to talk to a representative of the local lodge; and
asked Salmon to outline the procedure to be followed. In reply, Salmon suggested
that Wurth take the names and addresses of those who were willing to join, and
stated that if there were enough, he "would come down [to the plant] with mem-
bership cards." On the following day, Wurth discussed the matter of union organiza-
tion with the individual shop employees who were not then members of Local 63,
asking each, in substance, whether he favored unionization of the shop, and made
a list of the names and addresses of 5 or 6 such employees who told him, in effect,
that they favored union representation of the shop employees. (There is some
indication in the testimony that the list was in a notebook and consisted of the sig-
natures of the employees who so informed Wurth.) That same day, after speaking
to these employees, Wurth telephoned Salmon, told him that he "had the names"
and that the shop employees were willing to talk to a representative of Local 63,
and suggested that Salmon meet with the employees at the shop lunchroom during
their lunch period (between 12:30 and 1 p. m.) on the following day. The meet-
ing place specified by Wurth is a room adjacent to that in which the shop employees
work. It had at one time been the Respondent's office and had also been used
by a former superintendent in connection with his duties, but since the end of the
latter's employment, substantially its only use, so far as appears, has been as a
lunchroom for the shop employees.
In accordance with Wurth's suggestion, Salmon came to the lunchroom at 12:30
p. in. on February 22. He was accompanied by Carl L. Roberts, a business repre-
sentative of the District Lodge. All of the shop employees were in the lunchroom
3 The exclusions from the unit defined above differ somewhat from those set forth in
the complaint, in that the unit described there does not specifically exclude professional
employees, electronics engineers, and draftsmen. The Respondent was put on notice early
in the hearing by the General Counsel "that the production and maintenance unit as
defined in the complaint would exclude ieth, Brant, Adams, Mahoney, McCormack (sic)
and Zorn" or, in other words, the professional employees, the electronics engineer (Brant),
the draftsman (Zorn), and the purchasing agent. It may be noted, also, that the Re-
spondent advances no claim in its brief that any of the employees in the excluded cate-
gories should be joined with shop employees in a common bargaining unit. In any
event, the unit finding made above is justified by the evidence.
424 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
at the time and were engaged in eating their lunch. Salmon and Roberts dis-
tributed applications for membership in Local 63, and answered questions put to
them by employees touching such matters as union benefits and collective-bargaining
agreements in effect at shops similar to that of the Respondent. During the course
of the discussion, the union representatives informed the men that if the shop were
unionized, they would represent the employees and help them "draw up the con-
tract." While the discussion was in progress, Acting Superintendent Mahoney
came into the room and stayed for a few minutes, but did not say anything.
Following Mahoney's departure, and about 5 minutes before the end of the
lunch period, Robert Prentice came into the lunchroom. It had not been his
custom previously to come there while the men were at lunch. He was visibly
angry upon his arrival, and there can be no doubt that he was aware of the meeting
before he came to the lunchroom, and that his visit, as well as his anger, was
prompted by the fact that the union representatives were meeting with the employees
in the lunchroom?
Upon entering the lunchroom, Robert Prentice asked Roberts, whom he did not
know, if he was a union representative. Roberts replied in the affirmative and
introduced himself. Prentice then inquired whether Roberts had been authorized
to come on the premises to talk to the employees, and Roberts answered that he
and Salmon had been invited by the employees. Prentice next asked Roberts which
of the men had invited him and Salmon, and Roberts replied that he did not think
it proper to identify any employee as responsible for the invitation. Prentice there-
upon turned to a group of the employees and asked them who had invited the
union representatives. There was no reply. Prentice then announced that there
would be a meeting of the welfare committee at 2.30 that afternoon, and told one
of the employees, a committee member named Wesley M. Pettit, to make certain
that all of the employee members attended the meeting. With that, Prentice left
the room.5
During the lunch period, four of the shop employees (Robert M. Lavadore, Hans
Pedersen, Paul J. Galipeau, and Melvin L. Eakin) completed and signed applica-
tions for membership in Local 63, and gave the applications to one or the other of
the union representatives.6 Bearing in mind that 4 of the shop employees were
already members of Local 63 at the time of the lunchroom meeting, with the execu-
tion of the 4 membership applications. Local 63 became the designated bargaining
representative of 8 of the 13 shop employees on the Respondent's payroll on
February 22, 1957, or, in other words, of a majority of the members of the unit,
found above to be appropriate for collective-bargaining purposes, in the Respondent's
employ on that date.?
4 Although it is not unlikely, as the General Counsel states in his brief, that Mahoney
informed Robert Pientice of the presence of the union representatives, no finding need be
made on that score, since the source of Prentice's information does not materially affect
the issues
5 There is little material conflict in the testimony of the witnesses concerning events
in the lunchroom The only difference which need be noted is that Prentice does not
quote himrelt as asking the employees to state who had invited the union representatives.
His version is that he asked them whether the representatives had been invited and "how
many" had issued the invitation However, Roberts and a substantial number of the
shop employees gave testimony to the effect that Prentice asked employees, as a group, to
tell him who had invited the union representatives I credit this testimony, noting in
that regard, as will appear in greater detail later, that during the welfare committee
meeting which Prentice called, he interrogated employees at substantial length concern-
ing the identity of those who favored unionization of the shop, thus evincing a disposi-
tion to ascertain the union sentiments of individual employees.
9 Two additional shop employees (Ernest H. Pettit and Ralph M Strunk) completed and
signed membership applications, and turned them over to Local 63, after the District
lodge, on behalf of the local lodge, requested the Respondent to bargain The finding
made below that Local 63 represented a majority of the shop employees at the time of
the bargaining request does not rest upon the Pettit and Strunk membership applications
7 The Act requires no specific term of designation of a bargaining representative
N L. R. B v Consolidated Machine Tool Corporation, 163 F. 2d 376, 378 (C. A. 2).
Signed applications for membership in a labor organization are suffic.ent evidence that
the signatories have designated the organization as their bargaining representative, even
if there aie no words of authorization in the applications N L R. B. v. Bradford Dye-
ing Association, 310 U S. 318, 338-340 • N. L R. B v. Somerset Shoe Company, 111
F 2d 681 , 687 (C A 1) ; N L. R B. v Consolidated Machine Tool Corporation , supra,
at p 378 Formal action by the labor organization to accept the application, or to
E. V. PRENTICE MACHINE WORKS, INC . 425
Following the end of the lunch period at the Respondent's shop, Roberts went
to his office and prepared a letter, addressed to the Respondent, on stationery of
the District Lodge, signing it as "District Business Representative." The letter,
which is dated February 22, 1957, states that the District Lodge "for and in behalf of
its affiliated Local Lodges, has been authorized by a majority of the employees of
your shop located at 2321 N. Randolph Avenue, Portland, Oregon, to act as their
bargaining agency"; asserts that "this authorization includes the right to bargain
for all matters pertaining to hours, wages, and other conditions of employment";
notes that "the unit we claim to represent is all employees, excluding office clerical
employees, guards, supervisors and professional employees as defined in the Act";
and requests that the District Lodge "be recognized as the bargaining agency for
your employees in the unit" (set forth in the letter), and that "a meeting be
scheduled at your earliest convenience to commence negotiations for a labor
agreement." 8
Accompanied by Salmon, Roberts went to the Respondent's office shortly after
2 p. m. on February 22, and delivered the letter to David and Robert Prentice.
The brothers read the letter, and David said, in substance, that the Respondent
would take the letter under consideration. The union representatives requested
permission to attend the meeting of the welfare committee which Robert Prentice
had scheduled for 2:30 p. m. that day, and David replied that they would not be
allowed to do so. During the course of the conversation, David Prentice registered
objection to the visit by the union representatives to the lunchroom, stating that
he had had the advice of counsel in the matter, and recalling that he had previously
forbidden Salmon and Roberts to come on the Respondent's premises without the
prior permission of the management. The union representatives replied that they,
too, had been advised by counsel, but that the advice had been that they had a right
to come to the lunchroom. With that, the discussion ended.9
Robert Prentice testified that: Soon after Salmon and Roberts left, he telephoned
an attorney, informed him of the contents of the letter, and asked for an opinion
whether the District Lodge had a right to act as the collective-bargaining represen-
tative of the shop employees; he also told the attorney that there was to be a
meeting of the welfare committee that afternoon; the attorney suggested that he
(Prentice) endeavor to find out from the employee members "what the position
is . . ., what they had authorized the union to do," and whether they "had .
authorized them to do anything"; and the attorney stated that "it wouldn't be until
those things were known that he could give . .. an opinion . . . whether the
union was in fact the bargaining agent."
confer membership upon the applicant, is not a condition precedent to the right of the
organization to represent him N L. R B v Delaware-Nero Jersey Fe, ry Co , 128 F 2d
130, 134 (C A 3) The claim, advanced in the Respondent's brief, that the four em-
ployees who were already members of Local 63 should not be included in a computation
of that organization's majority lacks merit.
8 The Respondent makes no contention that the unit description contained in the letter
is vague or unclear The letter, taken as a whole, in effect advances a claim of repre-
sentation of the shop employees or, in other words, the production and maintenance em-
ployees employed at the shop, and seeks to bargain for them Such a meaning would rea-
sonably be conveyed to the Respondent by the letter, particularly as the Communication
states that the District Lodge has been authorized to act as bargaining agent by a ma-
jority of the employees at the shop, and specifies the address of the shop which is diffei-
ent from that of the main office building In short, the letter contains an adequate de-
scription of the unit the District Lodge seeks to repiesent, and that description, for all
practical purposes, substantially corresponds to the one found above to be appropriate
for the purposes of collective bargaining
9 The testimony of David and Robert Prentice reflects preoccupation by the Respondent
with the right of Salmon and Roberts to meet with the shop employees in the lunchroom
without the management's permission Whether the union representatives had such a
right does not affect any material issue in this proceeding, although it may be noted that
the shop employees had a right to engage in organizational activity on their own time,
without consulting the management ; that there was no plant rule of general application
prohibiting "outsiders" from visiting the lunchroom , that a number of salesmen , includ-
ing one who sold the employees crabs, have repeatedly visited the room and transacted
business with the shop employees while the latter were at lunch , that Salmon and Rob-
erts came to the lunchroom at the express invitation. or with the consent, of a substantial
number, if indeed not a majority, of the shop employees : and that whatever organizational
activity the employees engaged in on February 22 occurred while they were at lunch,
and thus on their own time.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The committee meeting scheduled by Robert Prentice began about 3 p. in on
February 22, and lasted about 45 minutes or an hour. It was attended by David,
Robert, and Thomas Prentice; Acting Superintendent Mahoney; and five shop
employees, Galipeau, Wesley Pettit, Pedersen, Louis Schnell, and Wurth. Pettit,
it may be noted, was the only 1 of the 5 employees who had not authorized Local
63 to act as bargaining agent, either by virtue of membership in the organization,
like Wurth and Schnell, or by signing an application card in the lunchroom, like
Galipeau and Pedersen. The meeting was not a regularly scheduled one, and was
the first welfare committee meeting attended by more than one of the Prentice
brothers. Robert Prentice acted as spokesman for the management during the
meeting, conducting most, if not all, of the interrogation of the employees which, as
will appear, took place at the meeting.
B. The welfare committee meeting
The record contains versions of the meeting by Schnell, Galipeau, Pedersen, and
Wurth, who were called as witnesses by the General Counsel, and by David and
Robert Prentice, who testified for the Respondent. (Pettit, Mahoney, and Thomas
Prentice did not testify.) All six versions reflect interrogation of the employees
by Robert Prentice on the subject of the invitation of the union representatives to
the plant, and of union representation of the shop employees, but before setting
down a narrative summary of significant features of the meeting, it is appropriate
to note some aspects of the testimony which have a bearing on findings with respect
to the meeting made below.
The testimony of each of the four employees reflects efforts by Robert Prentice,
by interrogation, to ascertain the identity of the men in the shop who favored
unionization. On the other hand, Robert Prentice's narrative account of the
meeting, on direct examination, contains no testimony that he sought such informa-
tion. According to this version, the interrogation followed the course of endeavoring
to find out whether the union representatives were invited to the plant; how many
were for and how many against the invitation; whether a formal vote or ballot had
been taken on the invitation; whether the shop employees had "during the lunch
hour . . . given any specific people the right to bargain for them"; and "why it
was that they felt they needed a bargaining representative." One would thus be
led to believe by Robert Prentice's account on direct examination that he made
no effort to ascertain the identity of the shop employees who favored unionization.
However, when questioned at a later point whether he or David had asked any of the
employees to state "who had signed cards," Robert replied: "No sir, we didn't ask
specifically. The thing we were asking was for some sort of a ballot as to who
invited the men (Salmon and Roberts) over" [emphasis supplied]. This tends
to support the testimony of employees to the effect that Robert Prentice's interroga-
tion sought to determine "who," as well as "how many" of the employees, favored
unionization. On that score, it is also noteworthy that under cross-examination,
Robert Prentice testified that "a certain number of them [employee members of
the committee] indicated they wanted a union." One may well conclude that what
the employees "indicated" was in response to specific interrogation designed to elicit
the information, particularly in the light of evidence (including David Prentice's
testimony) that the employees were reluctant during the meeting to identify those
who had invited the union representatives.10
Much of David Prentice's version of the meeting consists of characterizations of
what he "wanted to find out," of his motives and feelings in that regard, and of his
prior assumptions concerning the union attitudes of the employees. Substantially
the only concrete interrogation he quotes appears in his testimony that "Bob's ques-
tion was to find out who had asked them [Salmon and Roberts] into the plant, whether
it was a majority or a minority, whether a vote had been taken among the men . "
It may be observed that this testimony, unlike Robert Prentice's version on direct
examination, indicates that Robert's interrogation sought to find out "who" had
engaged in organizational activity as well as "how many." Significantly, also, on
that score, David Prentice pictures himself as wanting "to find out . .. if there had
been any kind of a vote taken to find out just who was in favor of it and who wasn't
10 It is interesting, and I think significant in the light of the record as a whole, to note,
also, that at one point Robert Prentice started to testify (as is evident from the context
of his testimony) that he asked the employees "who the men" were that were against
"it" (meaning, apparently, the invitation to the union representatives) ; and that Robert
then corrected himself, stating ". . . no, I didn't ask who the men were that were
against it I says, `How many were against it?' "
E. V. PRENTICE MACHINE WORKS, INC. 427
in favor of it"; and he subsequently testified that the "thing I definitely remember
is that nobody would admit to inviting the union men in," and that "(n)obody would
admit as to who all signed, as to whether or not a majority or minority had signed
the thing" [emphasis supplied].
It may be that David's specification of the questions asked the employees is some-
what scant because he left the meeting on two occasions to take telephone calls, but
I have no doubt that the interrogation was more extensive than that which he quotes,
and that Robert was not as frank as he should have been in describing the course
that his questions took, evincing a disposition, in my judgment, to play down the
fact that he sought to identify the specific employees who had engaged in organiza-
tional activity or favored union representation.
The fact that the meeting lasted about 45 minutes or an hour of itself indicates
that a great deal was said during its course. It would serve no useful purpose to
explore all the minutiae of the meeting as reflected in the six versions; nor would
anything of substance be gained by dealing with each of the many questions reflected
in the testimony, considered as a whole, nor is it essential to determine the precise
order in which given questions were put in relation to any other. A summary of
various aspects of the meeting, including the more significant questions put to the
employees, based on testimony I have concluded is credible, will suffice, and is set
forth below.
As the meeting began, Robert Prentice told the employees that he had some ques-
tions to put to them. He then asked them whether the union representatives had been
invited to discuss unionization with the shop employees during the lunch period.
Receiving an affirmative reply, he asked who had issued the invitation. At least
some of the employees manifested reluctance to identify those responsible. As
Pedersen put it in his testimony, ". . . we told him [Robert Prentice] we didn't think
it was fair to pinpoint any one man..... Prentice was told, however, that a major-
ity of the shop employees (or nine, according to Prentice's version of what he was
told) favored the invitation. Robert Prentice inquired whether a formal vote had
been taken among the employees on the subject of inviting the union representatives;
how it was taken; and how many had voted in favor of the invitation. This line of
interrogation appears to have led to some discussion among the employee committee
members. As a result, it was "determined" by the employees at the meeting, and the
management was told in substance, that a "vote" had been taken, but not in the form
of a ballot or in any formal sense, and that the way the "vote" was taken was that
the names of those who favored "the union" were entered (or signed by such em-
ployees, according to Pedersen) in a notebook. (One may reasonably infer that the
testimony concerning the notebook has reference to the list of names and addresses
of prounion employees, who were not members of Local 63, compiled by Wurth on
the day preceding the lunchroom meeting.) Robert Prentice asked to see the list
of such employees, but it is apparent from the evidence that employee committee
members were reluctant to show it to the management and either refused to do so
or evaded the request for its production. It was not produced 11 At one point or
another, apparently after employee committee members had manifested reluctance
to identify the shop employees who had approved the invitation to the union repre-
sentatives, Robert Prentice, in substance, inquired which shop employees did not
favor union representation (by Local 63, according to the sense of the credited evi-
dence). Wesley Pettit replied to the effect that he and his father, Ernest M. Pettit
(also a shop employee), were not in favor of union representation.12 Thereafter,
"Robert Prentice testified that he asked to see "a ballot with numbers for or against"
the invitation to the union representatives. But that he asked to see something more
than a mere "ballot with numbers" is evident from his own testimony at another point
that what "we were asking for was some sort of ballot as to who invited the men over"
Moreover, he also testified • "We had asked if a list of the people that wanted to talk
with the union men had been taken . . They said there was such a list, but that they
didn't care to show it to us " Findings concerning disclosure of the existence of a list
of those favoring unionization of the shop are based on the credited testimony of various
of the employee committee members
121 do not credit testimony by Robert Prentice to the effect that Pettit made his
statement in response to a question as to "how many" were against the invitation to the
union representatives The finding made above is based on the testimony of Galipeau,
Wurth, and Schnell who, although describing Robert Prentice's applicable interrogation
in different terms, are in substantial accord that the management sought to find out
which employees did not favor union representation, and quote Pettit (as also do David
Prentice and Pedersen, in substance) to the effect found above As noted earlier, at one
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
one or more of the employee committee members stated , in substance , that all of the
other shop employees had "signed" in favor of "the union" (or, in other words,
favored organization of the shop or representation by Local 63).13 Additional,
interrogation by Robert Prentice whether Rickford, a shop employee employed as am
electrician , "had signed . anything asking the union to come in ," as Pedersen
described it (or had been "included in the vote ," as Robert Prentice put it in his
testimony) brought the reply that Rickford had not participated in that activity
because he is a member of an electricians ' union. In reply to similar inquiries by
Robert Prentice concerning Brant, the electronics engineer , and Bela, a painter who
works in the shop building but is employed by the Sales Company, employee com-
mittee members told Robert Prentice, in effect, that Brant had not participated
because he is "salaried " and "not part of the machine shop "; and that Bela had not
done so because he is not in the Respondent 's employ.
Then, as Pedersen credibly described it, ". . we were asked . . . if we had
signed anything that would give the union authority to be our bargaining agent. .
Pedersen replied that ". . we hadn't signed anything except these cards [the
applications] here for membership . . , and stated, apparently at that point,
that it was his understanding that by signing such a card he had not authorized "the
union" to act as bargaining agent. Wurth then expressed his understanding, as
Robert Prentice quotes him, that "if 51 per cent of the employees sign up with
the union, then they automatically become their bargaining agent." 14 Thereafter,
Robert Prentice asked the employee committee members why they felt they needed
a bargaining agent. Pedersen stated that he wanted "a union card " because it
would be easier for him to secure employment if he had one. Either at that point
or shortly after his disclosure that he favored "the union ," Galipeau said, in
substance, that the welfare committee had not accomplished anything and that
therefore employees desired union representation for collective -bargaining pur-
point, Robert Prentice began to quote himself as asking "who" were "against" the invi-
tation to the union representatives, and then altered his course to quote himself as ask-
ing, "How many were against iti"
is Wurth and Pedersen describe the disclosure in somewhat different terms, Wurth
stating, in substance, that Robert Prentice was told that everybody but Wesley Pettit
and his father had signed "in favor of the union"; and Pedersen testifying to the effect
that Prentice was told that all the shop employees, with the exception of the two Pettits,
had signed "asking the union to come in " The disclosure, whether in Wurth's terms
or in those of Pedersen, amounts to the same thing If Pedei sen was referring to the
list of those who favored the invitation to the union representatives, it should be borne
in mind that 4 employees were already members of Local 63, and that substantially
all those on the list (5 or 6 who were not members) compiled by Wurth favored unioniza-
tion of the shop I have based the finding concerning the disclosure on the accounts of
Wurth and Pedersen, notwithstanding testimony by Galipeau that "it wasn't estab-
lished who had joined the union" (a literally accurate statement, so far as it goes) ;
and by Schnell that "we didn't tell them" which employees "wanted the union to come
in there," and which did not (Schnell, however, subsequently described Wesley Pettit's
statement ) Although David Prentice's evidence on the subject is somewhat vague and
self-contradictory, his testimony tends to support Wurth and Pedersen. David Prentice
testified : "Nobody would admit as to who all had signed [apparently meaning the invi-
tation to the union representatives], as to whether a majority or minority had signed
the thing They said they thought everybody The only definite statement . . . that
I recall was when Wes Pettit got up and he said that lie did not want the union, and
he knew his dad did not ." [emphasis supplied]. As stated previously, Robert Pren-
tice's account of the meeting was lacking in frankness On the other hand, Wurth and
Pedersen impressed me as the most objective of the six witnesses who described the
meeting, with reasonably good recollections of what took place there, considering the
length of the meeting (It may also be noted that Pedersen, unlike Galipeau, Schnell,
and Wurth, was in the Respondent's employ at the time of the heating ) In connection
with the findings made above, another noteworthy fact is that all the shop employees,
except Rickford and Ernest 1%f and Wesley Pettit, were laid off only about an hour after
the meeting ended This, I am convinced for reasons that will appear, was no mere
coincidence
ii Pedersen quotes one of the employees at the meeting in similar vein, but Pedersen's
testimony, as set forth in the transcript, imputes the statement to someone named
"George" The tianscript may be in error, or perhaps Pedersen misspoke himself in
stating the name, since nobody named "George" attended the meeting. In any event,
I have no doubt that a statement of the type described by both Pedersen and Robert
Prentice was made by one of the employees.
E. V. PRENTICE MACHINE WORKS, INC. 429
poses.15 Robert Prentice thereupon exhibited some draw checks he had on his
desk, and said that the welfare committee had accomplished the establishment of
a draw day. (The meeting was held on a draw day. Employees who had applied
for draw checks were given such checks at or about quitting time, soon after the
meeting ended. It may reasonably be inferred that these were the checks shown
by Robert Prentice to the employee committee members.)
At one point or another during the course of the meeting, Robert Prentice told
the employees that the Respondent "had been presented with a letter advising us
that Local 63 was the bargaining agent for the men." In that connection, Prentice
said that the Respondent had previously "been approached by the union to sign
a contract with them," and that "the union" had stated on that occasion that it "in
turn would go out and organize the shop." Then Thomas Prentice said, in sub-
stance, that it was immaterial to the Prentice brothers whether the employees were
unionized; that union and nonunion shops "make money"; that unionization would
be an advantage for the Respondent, since "the union" would serve as a source of
labor supply; and that he thought it odd that the employees had not accorded the
Respondent the courtesy of informing it that they wished to discuss unionization
with the union representatives, in view of the fact that on a prior occasion (in the
spring or summer of 1956), the Respondent "had given the employees" (actually,
employee members of the welfare committee) an opportunity to comment on the
fact that "the union wanted to organize them." lr, (The incident in 1956 to which
Thomas Prentice referred will be discussed at a subsequent point.)
During the course of the meeting, one or another of the Prentice brothers told
the employee committee members that Salmon and Roberts had no right to come
to the lunchroom without permission from "the office," and admonished the em-
ployees not to invite any person to the shop, or permit anyone to enter, unless
he had such permission.
Toward the close of the meeting, Robert Prentice read to the employees the
letter delivered earlier that afternoon by Salmon and Roberts, and stated that he
was not sure that the District Lodge represented the shop employees and did not
believe that it had a right to represent them.17 The meeting ended soon thereafter.
C. The layoffs
The committee meeting ended at approximately 4 p. m. Various shop employees,
including Galipeau, who had requested draw checks earlier that day, in accordance
with the plant practice, were given such checks about 4:30 p. in. When Acting
Superintendent Mahoney gave Galipeau his draw check, the latter asked whether
the check was his "final one," and Mahoney laughed and replied, "No, when we go,
we'll probably all go together."
At quitting time, about a half hour later, Mahoney went in turn to each of
the two washrooms at the shop building, where employees were preparing to
leave the plant, and announced, in substance, that all employees in the shop were
"canned," with the exception of Brant, Bela, Wesley Pettit, the latter's father,
Ernest M. Pettit, and Rickford; and that if those "canned" so desired they could
wait a short while and they would be given their paychecks. (The regular pay-
days were on the 15th and last day of each month.) At least "six or eight" of the
employees were in one of the washrooms at the time, and three were in the other,
a smaller one adjacent to the lunchroom . In the latter washroom , after making
his announcement, Mahoney said, "I didn't think that they'd go that far."
The shop employees "canned," to use Mahoney's term, were 10 in number, con-
15 As Galipeau described his remarks , he made them in response to a question by David
Prentice (to be noted later), and thus in a different context from that indicated in Robert
Prentice's testimony. The point at which Galipeau made the relevant remarks is not
particularly important Differing somewhat as to details, Galipeau and Prentice are in
basic accord as to the substance of the fornier' s remarks . The finding made reflects the
substance.
le The witnesses differ in quoting what Thomas Prentice said. He did not testify. Rob-
ert Prentice, who quotes Thomas at greater length than any other witness , makes no
reference to any statement by Thomas as to any advantage to the Respondent of union
representation David Prentice and Galipeau quote Thomas to that effect. The findings
made with respect to Thomas' statements aie based upon a composite of testimony by
David and Robert Prentice, Pedersen, and Galipeau.
1a Wurtli and Robert Prentice differ somewhat concerning the latter's closing remarks.
The difference is of little, if any, moment The relevant finding made is based on a com-
posite of their testimony.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
silting of Wayne H. Schnell, Louis C. Schnell, Hans 0. Pedersen, Robert M Lava-
dore, Melvin L. Eakin, Richard L. Wurth, Ralph H. Strunk, Paul J. Galipeau,
Frederick D. Buslach, and Ernest H. Pettit (who is to be distinguished from Wesley
Pettit's father, Ernest M. Pettit). This group, it may be noted, included all of the
shop employees who had attended the welfare committee meeting, with the excep-
tion of Wesley Pettit.
Some or all of the 10 employees waited for their pay and received checks covet-
ing whatever earnings were due them about 15 minutes after the announcements
that they were "canned." With their paychecks, they were given a mimeographed
memorandum, addressed to "The Shop Crew" from "The Management," stating:
"Due to lack of orders and the repair work underway, we are closing the Shop
indefinitely."
Upon receipt of his paycheck, shortly after Mahoney's announcement, Galipeau,
before he left the plant, called David Prentice on the plant telephone, and asked
the latter about vacation pay due him. Prentice suggested that Galipeau come to
the plant on the following Monday and talk to the bookkeeper who would
"straighten it out," and stated that he hoped to get "this mess" cleared up in a
short while.18 A number of the shop employees, apparently in two groups, came
to the plant on Monday, February 25, and made inquiry of Robert Prentice about
their vacation pay and insurance (not further elaborated in the record), and
Prentice told them, in substance, that the management planned to resume produc-
tion and call all the men back to work as soon as customers' orders came in and
certain repair work on the floor was completed; that he expected that production
would be resumed in about 3 to 6 weeks, and that if the employees drew their
vacation pay, they would be considered as having quit their jobs
Three of the shop employees, Lavadore, Ernest H. Pettit, and Pedersen, returned
to work, upon the Respondent's call, within a period of a few days early in April
1957.19 None of the other seven employees affected by the layoff had been called
back to work as of the time of the hearing in this proceeding. nor had the Respond-
ent hired any new employees for the shop.
D. The issue of the legality of the layoffs
The layoffs 20 were the product of a "sudden decision " made by the Respondent
at some point between the end of the committee meeting and quitting time. That
such was the case is not only evident from Robert Prentice 's testimony (he con-
ceded as much ), but from the fact that some employees were given their draw
checks about 4:30 p. m., without any intimation that they were to be laid off, and
from the tenor of Mahoney 's remarks when he gave Gilapeau a draw check.
The General Counsel contends that the layoffs were discriminatory and moti-
vated by antiunion considerations . Various features of the evidence , which he
invokes as support for his position , will be discussed later. The Respondent main-
tains that the layoffs were caused by (1) repairs to the floor of the shop, and
(2) the economic condition of the Respondent 's business . Evidence bearing on
the Respondent 's relevant contentions will be summarized below before concluding
findings are made concerning its motivation for the layoffs.
iB David Pientice's version of this conversation is to a large extent substantially the
same as Galipeau's The only differences which need be noted are that Prentice's account
makes no reference to "this mess," and that lie quotes himself as telling Galipeau that
"you people have been laid off." I have based findings on Galipeau's version as I believe
him to be the more credible of the two witnesses At a substantial number of points.
David Prentice's description of statements and events was not, in my judgment, as fac-
tual as it should have been In his demeanor and in what he said at various points, he
reflected a disposition to put self-serving emphasis on natters he described
11 Robert Prentice testified that the three were called back to work "about March 15th
or the week following March 22nd " The finding made above is based on the testimony
of the three employees whose recollection of the dates of their resumption of work ap-
pealed to me to be better than that of Prentice The difference in dates is of no special
moment.
20 In using such terms as "layoff," "layoffs," and "laid off," I do not intend to imply
that at the time Mahoney made his announcements, the Respondent intended a mere tem-
porary 'interruption in the work of all the employees affected, although for reasons to
be noted later, it matters little whether the 10 employees were discharged as Mahoney
in effect announced, or whether they were "laid off," as the Respondent maintains The
quoted (or related) terms are freely used in the testimony, particularly by David and
Robert Prentice I employ these terns because their use facilitates discussion of the
testimony. The legal effect of the "layoffs" will be discussed at a subsequent point.
E. V. PRENTICE MACHINE WORKS, INC. 431
The principal area where the shop employees work is a large room with floor
space 50 feet in width and 106 feet in length. The tools and equipment, includ-
ing a lathe, some drill presses, and welders, used to manufacture the Respondent's
products, take up about one-fourth of the floor space. The rest of the area is
"open space," used as may be needed for machines under construction and related
work processes. As stated earlier, a shed, which was built in 1956 as an extension
to the shop, is also used for production activities. The shed is approximately 25
feed wide and 80 feet long. About one-third of the space in the shed is used
for a "spray painting booth." Some of the machines under construction at the
time of the layoffs were located in the shed, and had been for some time prior
thereto, and a number of the employees laid off (Lavadore, Louis Schnell, Pedersen,
and another who is not identified in the testimony) had been working on various
machines in the shed.
The floor in the main shop, which is made of concrete, had holes in it and had
been in a state of disrepair for as much as a year and a half before the layoffs. Plans
by the management to lay a new concrete floor were made about February 7, 1957.
It was planned at that time that the concrete would be poured in 5 successive strips,
each about 20 feet wide, perpendicular to the length of the floor, and beginning at
the north or rear of the shop. This sectional method of doing the work was in-
tended to facilitate the continuance of normal production processes in the shop while
the old floor was being replaced by the new. It was anticipated that the repair work
would take about 3 weeks. The work was begun by a contractor on February 18
or 19, several days before the layoffs, was in progress when these occurred, and was
completed in about 5 weeks, the repairs taking longer than initially expected because
of some unanticipated delays.
So that the work on the first strip could start, about 30 percent of the area at the
rear of the shop was cleared of machinery and equipment, and at the time the work
began, the employees who had work to do in the main shop (as distinguished from
those in the shed) performed their duties, and the machines they worked on and
the materials they used were located, in the remainder of the shop space. On Tues-
day, February 19, the contractor, in chipping the old floor, discovered that posts
which were located along the shop walls and which supported the roof, did not rest
upon a solid foundation, and it was decided that unless the roof were braced, it might
collapse when the floor underneath the posts was chipped away. Upon discovery of
the condition of the posts, it was decided to alter the work plan. The alteration in-
volved tearing up about 60 feet of the length of the old floor, beginning at the north
or rear end of the shop, running past the middle, and leaving a strip on each side
(Robert Prentice estimated that each strip was about 12 feet wide, and Galipeau
that 1 strip was 4 or 5 feet wide and the other about 6 feet in width); then pouring
and setting the concrete in the 60-foot area; then providing additional bracing sup-
port for the roof; and thereafter tearing up and replacing the floor in the remaining
area. The machines under construction in the main shop, and some tools and equip-
ment , were thereupon moved a second time toward the front or south end of the shop,
leaving something under 50 percent of the shop floor space for work by the em-
ployees then working in the main shop. The lathe and a large drill press were not
moved on either occasion. (The evidence does not establish whether either of these
was essential to the work in progress while the repairs were made.) Some of the
machines moved were of substantial size and included an "edge gluer" which was
about 12 feet wide and 18 feet long. The second move was made on either Wednes-
day or Thursday, February 20 or 21, and the initial 60-foot strip of floor was torn
up on either 1 or both of those days, and the cement was poured on Friday, February
22, so that, as Robert Prentice testified, "we could have the advantage of the week-
end for the concrete to harden." While this work was being done, the employees,
whether working in the main shop or in the shed, continued with their work. Those
in the main shop did their work,tn less than 50 percent of the floor space there. At
some point (not specified in the record) after February 22, the roof was braced, and
then the strips running parallel to the 60-foot section first repaired were torn up and
replaced. The remainder of the floor, which was substantially less than 50 percent
of the total floor space in the main shop, was thereafter torn up and replaced.
In support of its economic defense, the Respondent adduced evidence (which will
be evaluated later), in substance, that: Its business has consisted principally of the
manufacture of custom-built machines upon special orders secured by the Sales Com-
pany; in 1955 the Respondent's board of directors authorized David Prentice, who was
then the Respondent 's manager, to build a limited number of machines for stock in
order to maintain a "stabilized rate of production"; the Respondent's business had al-
ways been "a profitable operation" prior to October 1956; its gross sales income in
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1956 reached a peak in August of that year, but declined considerably the following
October; 21 a point was reached either in that month or the one following when "the
order file had been completed, and we were working against stock orders and experi-
mental machines"; the Respondent lost money for the 4-month period ending January
31, 1957; 22 the staff of shop employees, which numbered 29 in July 1956, was re-
duced at various points thereafter, until it reached 13 in the month of February 1957
(preceding the layoffs on February 22); in or about the latter part of January 1957,
David Prentice went to Mexico, accompanied by an El Paso, Texas, businessman
named Truman White (who thereafter acted as the Sales Company's agent in the
Mexican transactions to be described below), and secured a tentative order (for the
Sales Company, but to be filled by the Respondent, according to the sense of the evi-
dence) from a Mexican company for machines priced at some $70,000; these ma-
chines were a portion of the equipment required by the Mexican firm, which had a
"commitment" from a Mexican government lending agency for a loan to finance its
equipment requirements; on February 15, 1957, David Prentice submitted an offer
to the Mexican firm to supply all the machinery required at a price of $261.041 (in-
cluding the machines first tentatively ordered); White telephoned David Prentice a
few days later and expressed "very high hopes" that either the first order would go
through or that the later bid would be accepted; about 2 p. m. on February 22 (shortly
before Salmon and Roberts delivered the bargaining request, and about an hour
before the welfare committee meeting began) White telephoned David Prentice from
El Paso and informed the latter that the Mexican lending agency "was not going to
live up to (its) commitment" and "that the deal had fallen through"; and David
Prentice told his brother Robert about White's information shortly before Salmon
and Roberts delivered the bargaining request. (According to David Prentice, White
telephoned him again on March 2, 1957, and told him that the Mexican loan authori-
ties would "live up to their commitment." The Mexican firm thereafter accepted
David Prentice's offer of February 15, 1957, and an agreement thereon was formalized
on March 8, 1957. At the time of the hearing in this proceeding, although "a great
deal of engineering" work had been done in connection with the order, none of the
equipment ordered had yet been produced by the Respondent. Delivery of the equip-
ment is scheduled for November 1957.)
As for the decision to lay off the 10 employees, the Respondent presented
testimony by Robert Prentice, in substance, that: On February 21, the day before
the layoffs, the Respondent's bookkeeper gave him a statement showing a loss for
the 4-month period preceding the end of January 1957; about 15 minutes after the
welfare committee meeting of February 22 ended, 4 Prentice brothers (including
David and Robert) held a meeting; David informed the others of White's telephone
report about 2 hours earlier to the effect that the Mexican "order had fallen
through"; the brothers discussed the condition of the floor and the production space
available; the Respondent had only 2 orders from customers on hand at the time;
Robert informed his brothers of the 4-month operating loss; the 4 brothers decided
to "maintain a skeleton crew of two men," consisting of Wesley Pettit and his father;
these were selected because they had more seniority than any of the men laid off;
in view of the bargaining request made earlier that afternoon, Robert Prentice con-
sulted the Respondent's attorney by telephone concerning the contemplated lay-
offs, and was told that "business is business," and that "you've got to decide on
the basis of what is good or bad business for the company"; and Robert Prentice
then prepared the notice concerning the closing of the shop (the memorandum to
21 The only gross income figures contained in the record are those shown in an "Oper-
ating Statement" as follows
June 1956------------------------------------------------------- $67, 024 66
July 1956------------------------------------------------------- 51, 654 91
August 1956----------------------------------------------------- 146,244. 59
September 195fi------------------------------------ ------------ -- 97,319.54
October 1956----------------------------------------------------- 10,417.82
November 1956--------------------------------------------------- 17.689.51
December 1956--------------------------------------------------- 15,174.93
January 1957---------------------------------------------------- 20.133.53
m The loss figures produced for the 4-month period are reflected in the "Operating State-
ment," and show the following :
October 1956------------------------------------------------------ $7,933.18
November 1956---------------------------------------------------- 2,530.64
December 1956---------------------------------------------------- 8,794.62
January 1957----------------------------------------------------- 2,327.63
E. V. PRENTICE MACHINE WORKS, INC. 433
"The Shop Crew" previously described), and told the bookkeeper to prepare pay-
checks for the men to be laid off. Robert Prentice denied in his testimony that
he told Mahoney, prior to the layoffs, that the men were to be laid off, and that
he gave Mahoney any instructions as to what to say to those laid off.
In its brief, the Respondent maintains that for "over two months Dave Prentice
had held the [shop] crew on the promise that the Mexican job would materialize in
a big way"; and, in substance, that the alleged telephone call from White on February
22 to the effect that the "order had fallen through" was the precipitating factor which
led to the layoffs about 3 hours later. The General Counsel argues that David
Prentice's testimony regarding the telephone call is not credible. For reasons that
will appear, whether such a call was made is by no means decisive of the issue of
the Respondent's motivation for the layoffs. It may be pointed out in that regard
that even if it be assumed that an economic motivation existed for the staff curtail-
ment on February 22, the question would still remain whether the decision to re-
tain Wesley Pettit and his father rather than 2 of the 10 men laid off was rooted
in an unlawful motive.
As support for his position concerning the credibility of the testimony regard-
ing White's alleged call, the General Counsel places emphasis on the fact that al-
though the record contains a substantial volume of correspondence regarding the
Mexican transaction, there is nothing in writing to support the claim that White "had
abandoned all hope of obtaining such a large order as this," but that, on the con-
trary, a letter from White to David Prentice, dated February 27, 1957, only a few
days after the alleged telephone call, sounds a substantially different note from that
reflected in the claimed telephone call. The letter from White states: "I received a
call from Mario Gonzalez [described by David Prentice as the "key man" of the
Mexican company] this week and he is extremely optimistic that his product is go-
ing to be approved finally by the Mexican Government. He feels that he will
have everything by the end of this week and has every confidence that there will be
no further delays beyond this period. I only wish that I could share his optimism,
however, I am still a little bit doubtful that this product will be approved in view
of all the political opposition.. .
David Prentice's testimony that White told him on February 22 that the
Mexican "deal had fallen through" does not quite jibe with this letter written only
a few days later. What is more, the telephone call, coming as it did, according to
David Prentice, only about 3 hours before the layoffs, is, if credible, a striking
coincidence, as is the fact that the 10 employees laid off were precisely those in
effect identified at the welfare committee as favoring representation by Local 63, and
the circumstance that the 2 employees (Wesley and Ernest M. Pettit), allegedly re-
tained on seniority grounds, were precisely those who were expressly identified at the
meeting as not favoring such representation. On the other hand, one must take
into account the fact that the General Counsel offered no evidence to contradict the
testimony that the telephone call in question was made. To be sure, as the Gen-
eral Counsel maintains , one need not inevitably accept uncontradicted testimony.
But it should be borne in mind that the General Counsel, who, it may be officially
noted, has a branch office and investigatory facilities in El Paso, the place where
the alleged telephone call originated, offered no explanation for his omission to call
White as a witness or to subpena the records of the El Paso telephone office, nor did
the General Counsel apply for leave to take depositions in El Paso Perhaps such
evidence would add little, if anything, to what is already in the record; perhaps a
great deal. In any event, as matters stand now, the General Counsel requests that
uncontradicted testimony be discredited, yet leaves one in the dark as to the avail-
ability of evidence which could conceivably support his position, and as to the rea-
son why such evidence, if available, was not produced. The sum of the matter is
that while David Prentice's testimony concerning the telephone call imposes a heavy
burden, in the light of the whole record, on one's credulity, I am not prepared, on
the record as made, to reject his uncontradicted testimony in that regard and shall
assume, in making concluding findings regarding the Respondent's motivation for
the layoffs, notwithstanding White's letter of February 27, 1957, and the fact that the
negotiations resulted in an agreement with the Mexican firm a short time later, that
White did telephone David Prentice on February 22 and told the latter, in substance,
that the Mexican "deal had fallen through."
In connection with the issue posed by the layoffs, it is well to bear in mind that
the question to be decided is not whether there existed on February 22 some
justifiable ground for the layoffs, but whether the reasons advanced now were
actually those which led to the staff curtailment, and were not rooted in any ground
condemned by the Act. As the Court of Appeals for the Ninth Circuit has pointed
483142-59-vol 120-- 29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out, "[T]he existence of some justifiable ground for discharge is no defense if it
was not the moving cause" (Wells, Incorporated v. N. L. R. B., 162 F. 2d 457,
460) 23 Notwithstanding the evidence, outlined above, pertaining to the floor
repairs, the state of the Respondent's business, and White's telephone call on February
22, there are a substantial number of factors in the record which establish that the
"moving cause" of the layoffs was a design by the Respondent to discourage
organizational activities by its shop employees and membership by them in Local
63. The reasons for that conclusion appear below:
1. Taking the evidence as a whole, one is led to the conviction that the floor
repairs had nothing to do with the layoffs. For one thing, the shed, which was
built about the time production was at its peak and the Respondent had a much
larger shop crew than on February 22, was not only available for use while the
floor repairs were in progress before the layoffs, but was actually used for production
during that period. For another matter, additional floor space was available in
the rented warehouse across the street from the shop, and that building had previously
been used for production. The rented space, to be sure, had shortcomings and
was lacking in various conveniences, but the fact remains that it had been used
by the Respondent for the greater part of 1956, and that machines similar to at least
some of those in production on February 22, 1957, had been produced there.
What is more, there is undisputed evidence that within a few days preceding February
22, Acting Superintendent Mahoney (together with some employees) surveyed the
rented warehouse with a view to determining whether it was suitable for certan
work "in case things got too crowded over in the . . . other buildings," and
concluded that the premises could be used for that purpose. Moreover, it would
seem reasonable to suppose that Mahoney, charged as he was with the responsibility
for the work in the shop, would have said something about the floor repairs in
announcing the layoffs if the repairs were, in truth, a factor in the layoffs; yet he
not only made no mention of the repairs but, on the contrary, told the employees
affected that they were "canned," also making the meaningful remark to one or
more employees at one point, as the uncontradicted evidence establishes, that he
"didn't think they'd go that far." It is also noteworthy that, so far as appears,
nothing was said to any employee, prior to the distribution of the memorandum
shortly after 5 p. in. on February 22, concerning the repairs as a reason for the
curtailment of production. In view of the stress placed in the Respondent's evidence
on the change of plans concerning the floor repairs as a reason for the layoffs, and
of the fact that when the plan to repair the floor in 5 sections was in effect, Robert
Prentice had informed the shop's 2 leadmen, Louis Schnell and Wesley Pettit, as
well as Mahoney, of the plan, it seems odd that at the lengthy welfare committee
meeting on February 22, although many matters affecting the employees were
canvassed by the management, and both leadmen, as well as Mahoney, were present,
nothing was said about the repairs, the change in plans concerning them, or any
shortage of available working space.
Perhaps the most striking feature of the evidence pertaining to the floor repairs
is that it is plain even from Robert Prentice's testimony that the shop employees
proceeded with their work, after the repair plans were changed, continuing with it
while the 60-foot section running substantially more than half the length of the
shop, was torn up, and while cement was being poured in that area; and working in
what appears to have been something less than 50 percent of the main shop floor
space, or, in any event, roughly that percentage of the space. There is no evidence
that they did not perform their work satisfactorily or with adequate efficiency while
working in the restricted space, nor is there any proof (or claim, for that matter)
that they were in any danger while so employed. Why, then, it may be asked,
could not the shop employees have continued to work after February 22 in a
substantially equal amount of space, particularly bearing in mind the area available
in the shed, and in the rented warehouse, and the undisputed evidence that Mahoney
had actually decided that the warehouse could be used for at least certain production
processes "in case things got too crowded over in the . other buildings"? The
Respondent's evidence furnishes no satisfactory answer to the question.
The sum of the matter is that the claim that the floor repairs were a factor in the
layoffs has a contrived posture, and the very fact that the repairs are offered as a
justification for the layoffs impels me to conclude that the Respondent has sought
to congeal an unlawful motivation for the layoffs.
2. There are clear indications in the record that the Respondent is hostile to
the independent exercise by its employees of their right of self-organization, and
m Coe assn N L R R v L Ronnen R Sons Fnrn+tnre Ara , factnrina Co 200 F 2d 730,
737 (C A. 9), cert . denied 346 'II. S. 937; N. L. R . B. v. Whitin Machine Works , 204 F. 2d
883, 885 (C A 1)
E. V. PRENTICE MACHINE WORKS, INC. 435
the evidence on that score has a pertinent bearing on the question of the motivation
for the layoffs.
As their own testimony indicates, David and Robert Prentice were angered by the
visit of Salmon and Roberts to the lunchroom, notwithstanding the fact that the
union representatives and the shop employees engaged in organizational activities
while the latter were at lunch. Whether the anger of David and Robert was
aggravated upon service of the bargaining request little more than an hour later
does not appear, but there is good reason to believe that their angry mood prevailed
during the welfare comm_ttee meeting which began soon after the service of the
bargaining request, and that the anger stemmed not alone from the mere fact of the
union representatives' visit to the lunchroom, without the permission of the manage-
ment, but from the circumstance that the employees had exercised their right of
self-organization without regard to the Respondent's wishes in the matter. One
may note in that regard that Robert Prentice testified that he "thought there was
some sort of an obligation" on the part of the employees to discuss the exercise of
their organizational rights with the management "inasmuch as we had consulted
them" about the "fact that the union wanted us to sign a contract and organize the
shop." Significantly, also, David Prentice stated that he "was pretty hot . that
the men had already expressed to me the fact that they did not want a union, and
being as the union had already taken steps to try to come in without even consulting
with the men, to have us sign the agreement, I was wondering just exactly whether
a minority in the shop was for some reason or other trying to get the thing unionized
without having the majority's consent." The consultation with the employees, to
which both David and Robert Prentice refer in their testimony, was, it appears,
with employee members of the welfare committee in the spring or summer of 1956,
and "the men" who had told David Prentice then "that they did not want a union"
were Galipeau and Pedersen, both of whom expressly stated in one form or another
at the meeting on February 22, 1957, that they favored unionization of the shop.
(The versions of Salmon and Roberts of their dealings with the Respondent in 1956
differ substantially from the account given by David Prentice. Additional reference
to this aspect of the evidence will be made at a subsequent point.)
Needless to say, the employees had a right to engage in organizational activity,
irrespective of what passed between the management and the welfare committee at
any prior time, and Robert Prentice conceded as much when he testified that he
"knew that they [the welfare committee] had no right at all" to bind any employee's
right to join a union of his choice. Similarly, this organizational right could not
be impaired by any discussion in 1956, whatever its content, between the manage-
ment and Salmon and Roberts. In any event, I have no doubt that at the time of
the layoffs, the Respondent was deeply concerned over, and hostile to, independent
organizational ideas and activities among its employees. That conclusion is not
altered by Thomas Prentice's remarks at the welfare committee meeting of February
22 to the effect that it was immaterial to the Prentice brothers whether the em-
ployees were unionized; that union and nonunion shops "make money"; and that
unionization of the shop would be an advantage to the Respondent, since "the
union" would serve as a source of labor supply. These statements take on the
posture of abstractions when measured by the actual reaction of David and Robert
Prentice to the visit of Salmon and Roberts to the lunchroom and to the inde-
pendent exercise by employees of their right of self-organization; the pointed inter-
rogation at the welfare committee meeting, obviously designed to secure informa-
tion concerning the identity of those who favored unionization of the shop; and
the layoff, only about an hour after the meeting ended, of those so identified. The
evidence of the Respondent's hostility to the employees' right of independent self-
organization, particularly when viewed in the light of the sequence of organizational
events on February 22, supports the conclusion that an unlawful motivation was
at the bottom of the layoffs.
3. That the Respondent had such a motivation becomes evident upon considera-
tion of the nature of the interrogation at the welfare committee meeting, the dis-
closures made there, the timing of the layoffs in relation to the disclosures, and the
identity of those laid off and of those retained.
The layoffs followed hard upon the disclosures at the meeting of the identity of
those who favored organizational activity or unionization of the shop, of those who
did not, and of those who had not participated in the "vote." The 10 men laid off
were precisely those identified at the meeting as favoring organizational activity or
unionization. The 5 men expressly exempted by Mahoney from the discharge an-
nouncements he made in the washrooms consisted precisely of the 2 (Wesley Pettit
and Ernest M. Pettit) who had been identified at the meeting as opposed to union
representation, and the 3 (Rickford, Brant, and Bela) who, according to disclosures
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made at the meeting, had not participated in the "vote" for reasons varying with
each. The identity of those laid off, and of those expressly exempted, follows so
closely the lines of disclosure described above that one would have to ignore com-
pelling evidence to come to any conclusion but that a discriminatory motive, dic-
tated by hostility to unionization of the shop employees, and their representation
by Local 63, was at the bottom of the layoffs.
That the Respondent was so motivated becomes additionally evident if one ex-
amines the reason advanced for the retention of Wesley and Ernest M. Pettit. The
Respondent's claim in that regard does not survive scrutiny of the evidence which
bears upon it. Louis Schnell, like Wesley Pettit. was a leadman and, as such, was
charged with greater responsibilities than any of the other shop employees, with
the exception of Wesley Pettit. As Robert Prentice conceded, the production of
clippers was in Louis Schnell's "department." According to the sense of Robert
Prentice's testimony, the only two "orders" being processed at the time of the lay-
offs were for clippers. (Other machines in production were apparently for stock.)
The sense of undisputed evidence by a former superintendent (whose employment
terminated only about a month before the layoffs) is to the effect that: Louis Schnell
was a better leadman than Wesley Pettit in the production of clippers; Wesley Pettit
was better than Schnell in the manufacture of jointers; Schnell, Eakin, Wurth, and
Lavadore were better workers than the rest of the shop crew in the production of
clippers; and Ernest H. Pettit, Ernest M. Pettit, Wesley Pettit, and Galipeau excelled
over the other members of the shop staff in the manufacture of jointers. The evi-
dence does not establish what work each of the employees was engaged in at the
time of the layoffs, but Robert Prentice's testimony indicates that at least a substan-
tial portion of the work in progress at the shop on February 22 was on clippers; and
it is undisputed that Lavadore and Louis Schnell had been engaged in the construc-
tion of a clipper for some time before the layoffs, and had about a week's work re-
maining on the machine as of the time they were laid off, and that Wurth was work-
ing on February 22 on the reconstruction of a clipper which had been manufactured
some time before. One would think it only natural, if the reasons for the layoffs
were those advanced by the Respondent, that it would take into account in selecting
employees for retention, that the clippers in production were in Louis Schnell's "de-
partment," and that employees, including Schnell, with greater efficiency in cliaper
manufacture than Wesley and Ernest M. Pettit, were engaged in such work. That
these factors were ignored is evident from the following testimony by Robert Pren-
tice: "At the time I asked Steve Mahoney what the condition of our firm orders on
hand were, so far as their percentage completion. He pointed out that there was the
Pen Ply and the Crown-Zellerbach clippers to get out, and I believe I put the ques-
tion: Could two men take care of them in the time that they're required, and he said,
yes, there shoudn't be any problem with that, and so we picked two because it was
the one figure I happened to throw at Steve." The "two" retained were Wesley and
Ernest M. Pettit, and their choice, Robert Prentice asserted, was governed by con-
siderations of seniority. There is no reason to doubt that Wesley and Ernest M.
Pettit "did have clipper experience," as Robert Prentice testified, and one may as-
sume, as he also stated, that they are "extremely well-rounded" in the Respondent's
production activities, but it, is nevertheless somewhat odd that Robert Prentice, who
had become the Respondent's manager only about 2 or 3 months previously, in
making a decision as to future operational plans should select the number of em-
ployees to be retained "because it was the figure that [he] happened to throw at
Steve," and that he should not even consult Mahoney, the individual in charge of
the production activities in the shop, concerning the selection of those to be laid off.
In fact, at one point Robert Prentice denied that he told Mahoney, prior to the lay-
offs, that there were to be any, although this denial does not jibe with the excerpt
from Prentice's testimony quoted above.
Robert Prentice's explanation of the decision to retain Wesley and Ernest M.
Pettit strikes an implausible note, and the implausibility of his claim is heightened
by evidence, as Robert Prentice conceded, that "job classification," as well as
seniority, had been taken into account on the occasion of prior layoffs; and by
undisputed testimony by Mahoney's predecessor as superintendent that when there
was a substantial reduction in the shop crew in 1956 for economic reasons, the
task of selecting those to be laid off was committed to his judgment (as David
Prentice also testified in effect), that the factors which entered into his determination
were "a combination of seniority and ability"; and that some of those laid off were
senior in point of service to some of those retained. Far more plausible than the
Respondent's claim that the retention of Wesley and Ernest M. Pettit was governed
by considerations of seniority is the view that they were retained because of Wesley
E. V. PRENTICE MACHINE WORKS, INC. 437
Pettit's statement at the welfare committee meeting that he and his father were
opposed to union representation . In short , I do not credit the claim that Wesley
and Ernest M. Pettit were retained for reasons of seniority , but, on the contrary,
find that they were selected for retention because Wesley Pettit told the manage-
ment at the welfare committee meeting that he and his father were opposed to
union representation . Thus, even if one assumes ( and I make no such finding,
as will appear ) that economic considerations were a factor in the decision to reduce
the shop staff , the basis upon which the Respondent selected those retained was
discriminatory and unlawful.
4. Mahoney 's announcement in each of the two washrooms to the effect that
all the employees in the shop were "canned ," with the exception of the five indi-
viduals he expressly exempted , and his statement in the small washroom that he
"didn 't think they 'd go that far," point to an unlawful motive for the layoffs.
His later remark indicates that he had been surprised by the Respondent 's action
and, plainly , what he meant by it was that he did not think that the Respondent
would go so far as to discharge the 10 employees because they favored unionization.
The Respondent , however, would attach no weight to Mahoney's statements,
and to that end, in its brief, stresses the fact that he was acting as shop superin-
tendent only temporarily (for about 2 months ), and asserts that "the evidence
shows that Mr. Mahoney did not receive instructions from any of the Prentice
brothers" (as to what to tell the employees ). It may be pointed out that even if
one ignores Mahoney's statements , the rest of the evidence , taken as a whole,
would still require a conclusion that the Respondent ' s motive for the layoffs was
unlawful . But Mahoney 's statements should not be ignored , if for no other reason
than that they shed additional light on the Respondent's motivation . The circum-
stance that Mahoney was acting as superintendent on a temporary basis, and de-
voted a substantial portion of each day to his regular engineering duties, does not
alter the fact that he was in charge of production activities in the shop and super-
vised the work of all the shop employees . Moreover, he was present throughout
the welfare committee meeting and was aware of all that went on there. The
committee meeting was the first attended by more than 1 Prentice brother, and the
attendance of 3 of the brothers was due, according to Robert Prentice , to "the
serious nature of the thing ," and what made the meeting "serious ," Robert testified
in effect, was that it related to "union matters ." The fact that Mahoney attended
a meeting concerned with such "serious" matters, and plainly did so as a representa-
tive of the management , coupled with the circumstance that he was the supervisor
of the shop employees , including those who attended the meeting , more accurately
describes his importance in the managerial hierarchy than the allusions to the
temporary nature of his supervisory status.
What is more , it is inaccurate to say, as does the Respondent in its brief,
that the evidence shows that "Mahoney did not receive instructions from any of
the Prentice brothers" as to what to tell the employees. The only evidence on
that score is testimony by Robert Prentice that he gave no such instructions to
Mahoney; and by David Prentice that he does not know whether "any instructions
[were] given to anyone to tell the men ." Assuming that this testimony is credible,
it does not mean that Mahoney did not receive his instructions from a Prentice
brother other than David or Robert , notwithstanding the fact that Robert 's assigned
function at the time in question was to serve as the Respondent 's manager. It may
be noted in that connection that Mahoney , who is still in the Respondent 's employ,
and Charles and Thomas Prentice were not called as witnesses by the Respondent.
Another noteworthy matter is that Robert Prentice 's testimony reflects some self-
contradiction on the question whether he had any discussion with Mahoney con-
cerning the layoffs prior to the time they occurred. At one point, he denied that
he told Mahoney that "there was going to be a layoff," but he subsequently described
a conversation with Mahoney , quoted previously , in which he allegedly discussed
the pending shop orders with Mahoney and asked the latter whether "two men
[could ] take care" of the orders . By its very nature, the frame of reference of
this alleged conversation was an impending layoff of all shop employees except
"two we picked because it was one figure I happened to throw at Steve."
The self-contradictory testimony is not the only factor which reflects on the credi-
bility of Robert Prentice's disclaimer of any instructions to Mahoney. According
to. Robert, he and his brothers resolved late in the afternoon of February 22 to
reduce the Respondent 's shop staff to "a skeleton crew of two ," consisting of "the
two oldest men [Wesley and Ernest M. Pettit] on our payroll." If no instructions
concerning the layoffs were issued to Mahoney , where, it may be asked, did he get
the information concerning the identity of the "skeleton crew of two men" to be
retained , and that which led him to exempt not only the "skeleton crew " by name,
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but also Rickford , a shop employee , Brant , the electronics engineer , and Bela, who
was not on the Respondent 's payroll , from the discharge announcements? Al-
though the answers to these questions are peculiarly within either the Respondent's
knowledge or that of Mahoney, the Respondent did not supply them , nor did it
call Mahoney to do so.24 I do not credit Robert Prentice 's testimony that he gave
Mahoney no instructions regarding the layoffs What Robert or any of his brothers
actually told Mahoney concerning the layoffs and those to be retained cannot be
precisely determined in the state of the record , but whatever the course of Ma-
honey 's information , I have no doubt that, as the acting superintendent and super-
visor of the shop employees , he was well aware of the Respondent 's intentions re-
garding each of the men employed at the shop premises , and spoke with the voice
of management in making announcements regarding those "canned ," and those
expressly excepted , and that Mahoney was privy to the reason for the layoffs,
plainly implying the reason when he said in the small washroom that he "didn't
think they 'd go that far."
5. The evidence is undisputed that customers ' orders fell off considerably after
September 1956, that the Respondent 's business had always been profitable prior
to October 1956, and that its books show a loss for January 1957 and each of the
preceding 3 months. Also , as noted earlier , there is uncontradicted testimony
that White called David Prentice a few hours before the layoffs and told Prentice
that the Mexican "deal had fallen through."
However, this economic evidence is not as persuasive as would appear on the
surface. As a preliminary matter in that regard , one may note that the Respondent
laid off only shop employees . David Prentice 's testimony attests to "the problem
of getting good help [for the shop] when we needed it", yet no explanation is
offered for the fact that no employee in any other department was laid off. More-
over, a significant feature of the record is the failure of the Respondent to produce
any income or profit or loss figures for the month of February , toward the end
of which the layoffs occurred , although making a point of producing such figures
for a number of months preceding February . In fact , Robert Prentice , who, as the
Respondent 's manager , was the moving figure in putting the layoffs into effect,
testified that he did not know on Februaiy 22 whether or not the Respondent had
made a profit that month prior to the layoffs , and, for that matter, stated that he
had no such information at the time of the hearing . In drawing inferences and
making findings, I am unable to overlook this testimony and the failure of the
Respondent to produce any figures for the month of February . 25 It is well estab-
lished, as the Court of Appeals for the Sixth Circuit has observed , that ". . . where
the party on whom rests the burden of evidence as to a particular fact has the evidence
within his control and withholds it, the presumption is that such evidence is aeainst
his interest and insistence " (N. L. R. B. v. Ohio Calcium Company , 133 F 2d 721).
The Respondent 's failure to produce the February income figures, or to supply a
plausible explanation for the omission , justifies an inference that if the figures
were produced they would not support the Resnondent 's claim that the layoffs were
motivated by economic considerations . Testimony that orders for custom-built
machines were low in February does not negate the inference , for much of the
Respondent 's shop operations for some time preceding the layoffs consisted of the
production of machines for stock , and for all that appears in the record, the
Respondent made a profit in February , whether from the sale of machines built
to special order or from the sale of those produced for stock.
24 Robert Prentice volunteered at one point that Mahoney "found out that there was
to be a layoff from the bookkeeper " This was stricken as hearsay , since Prentice testi-
fied that he based his information on "what Steve Mahoney told me " In connection with
the excluded testimony , it may be noted that it does not quite explain what led Mahoney
to make specific reference to the five excepted employees in making his discharge announce-
ments Moreover , it seems quite implausible that a person of Mahoney's supervisory
status would find out "that there was to be a layoff" from the bookkeeper rather than
from one or more of the Pi entice brothers.
25 According to Robert Prentice, "February 28th is the end of our fiscal year, and the
[profit ana loss] statement is being prepared by our C P A , rather than our bookkeeper,
which takes a considerable amount of time in preparation " This may be. but it does not
quite explain why the Respondent did not produce gross income and profit or loss figures
for February . There apparently was no difficulty in producing such figures for the pre-
ceding month , also close to the end of the fiscal year I see no reason to doubt that had
the Respondent so desired , it could have determined in advance of, or during , the hearing,
which was held about 2 months after the end of the fiscal year , what its gross income
and profit or loss figures were for February , and produced them at the hearing.
E. V. PRENTICE MACHINE WORKS, INC. 439
But even if the inference is put aside, the claim that the 4-month loss and White's
-telephone call on February 22 were at the bottom of the layoffs does not respond
well to careful examination. At the center of the claim is a contention that for a
substantial period ("over two months," according to the Respondent's brief) preced-
ing the layoffs the Respondent had maintained the shop staff in anticipation that
"the Mexican job would materialize in a big way" (as the brief puts it). In support
of its economic claims, the Respondent presented testimony by David Prentice that
in 1955 or 1956, while he was manager, the Respondent's board of directors, in the
interest of production stability, authorized him to build machines for stock, but
imposed a limitation on the number to be built. The limitation Prentice describes
is not borne out by the text of the board's resolution,26 but passing that aspect of
the record, whatever limitation, if any, existed in 1955 or 1956 is quite immaterial,
for there is credible evidence, substantially undisputed, that about the beginning of
February 1957, only about 3 weeks before the layoffs, the Respondent had plans
to build machines for stock for a period well beyond February 22, and informed a
number of employees of such a program The occasion was a meeting of the
welfare committee. An employee had been "laid off" for inefficiency Word
reached Robert Prentice that this action had made the shop crew "uneasy," and to
reassure them he brought the matter up at a committee meeting, explaining the
reason for the action taken, and stating that it did not portend any further reduc-
tion of the shop crew. Prentice also told the employees, in substance, that orders
-were low at that point, but that he anticipated a substantial quantity in the near
future; that the Respondent wanted to build up its stock of machines; and that the
employees would work on that project for about 2 months pending the anticipated
"influx of orders." 27
What took place at this meeting does not quite jibe with the claim that the shop
crew was maintained "on the promise that the Mexican job would materialize in a
big way" If the claim (as appears to be the case from the language used to
express it) has reference to the enlargement of the initial tentative order for about
$70,000, described in David Prentice's testimony, to one for some $261,000, the
enlarged order plainly could have had no connection with the stock machine pro-
gram visualized by Robert Prentice about the beginning of February, because the
possibility of securing the much larger order did not arise until about 2 weeks later,
-resulting in the bid for that order on February 15 In short, there was no prospect
of the larger order when Robert Prentice assured the employees of continued employ-
ment in building machines for stock for about 2 months pending an anticipated
"influx of orders."
As for the initial tentative order for some $70,000 worth of equipment , the sense
of evidence adduced by the Respondent is that it (as well as the much larger order
into which it developed) was contingent upon approval by the Mexican Government
of the prospective customer's "product" (see Truman White's letter of February
27, 1957, and consummation of financing arrangements with an agency of the
Mexican Government . David Prentice testified that he returned from Mexico with
the smaller order on a tentative basis about the beginning of February, and, accord-
ing to the sense of Robert Prentice's testimony, his brother returned shortly before the
welfare committee meeting at which Robert assured the employees of continued
employment in the program of building machines for stock pending an anticipated
"influx of orders." It is a matter of some significance that Robert, who knew about
-the status of the tentative order described in his brother's testimony, admittedly did
not "mention the Mexican order as such" to the employees. The fact that he did
not do so in a context of assurance to the employees of continued employment, al-
iS David Prentice testified that the hoard of directors limited him to the construction
of "one jointer, 120 inch clipper, and a 135 inch clipper," and "patch strip loaders in
series of six at a time, but not all for stock." The board resolution purportedly confer-
ring this authority was actually passed in March 1955, and it does not contain the limi-
tation David Prentice describes. The minutes of the board meeting contain a resolution
that "effective immediately the policy of the company will be to stock ahead sufficient
material to build" 5 Victor Patch Strip Loaders, 1 Victor Jointer, and 5 Victor Clip-
pers (The record contains descriptions of these machines but it is unnecessary to give
-them here ) How many machines were built for stock in what was substantially a
2-year period preceding the layoffs does not appear.
it There is no significant conflict in the testimony concerning the meeting described
above, although the several versions differ somewhat in details, and Robert Prentice does
not quote himself as mentioning a period of about 2 months for the construction of
machines for stock. Galipeau and Pedersen quote Prentice to that effect. The findings
made are based upon a composite of the several accounts describing the meeting.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though the initial Mexican order was already tentatively in existence , according to
David Prentice's testimony, but instead said that "orders were low," spoke of his
anticipation of "an influx of orders shortly or in the near future" [emphasis sup-
plied], expressed a desire to build up the Respondent's stock of machines, and told
the employees that they would continue to work on machines for stock for about 2
months pending the anticipated influx , leads me to conclude that the Mexican order
as it stood about the beginning of February was not a factor, or, in any event, not
a significant one, in the assurance given the employees, nor in the plan to build up
an inventory of stock machines. Bearing that in mind, and the fact that the en-
largement of the order to about $261,000 was not in prospect when Robert Prentice
told the employees of the plan, a pertinent question is why White's telephone call
on February 22 should have brought the program of building machines for stock
virtually to a dead halt, attended by the layoff of all but 3 of the shop crew, long
before the expiration of the period visualized for the program. I find no convincing
answer to the question in the Respondent 's evidence.
In sum , the claim that the shop crew was retained for a period prior to the lay-
offs because of anticipation of the Mexican order, whether in its initial or later form,
does not stand up well under examination , and the infirmities in the Respondent's
evidence pertaining to the state of its business , described above, militate against
acceptance of its contention that economic considerations precipitated the layoffs.
6. As support for its claim that the 10 employees were merely laid off temporarily
for economic reasons, the Respondent points to Robert Prentice 's statements to that
effect to some employees within a few days after the layoffs, and to_ the fact that
Lavadore, Ernest H. Pettit, and Pedersen were called back to work.
These aspects of the evidence should be viewed in the light of the whole record.
Prentice 's statements to the employees are not a controlling guide to the Respondent's
motivation on February 22. For one thing, what he said to the employees within
the next few days does not jibe with what Mahoney told them when the layoffs
occurred. He informed the employees that they were "canned," meaning, obviously,
that they were discharged. For another matter, Robert Prentice was far from
frank in his evidence describing the course his interrogation took at the welfare
committee meeting; in his denial that he had any discussion with Mahoney concern-
ing the layoffs prior to the latter 's announcements ; and in his testimony relating to
the reasons for, and the circumstances of, the retention of Ernest M. and Wesley
Pettit . Discrimination couched in the language of a temporary layoff is often not
as easy to detect as that put in terms of an outright discharge , and in the light of
the shortcomings in Robert Prentice 's testimony, one may doubt that he was any
more frank in the statements he made to the employees following the layoffs than
he was in his evidence touching some of the most vital aspects of this proceeding.
Nor do I believe that the recall of the 3 employees, and the omission to hire new
ones between February 22 and the time the hearing was held (about 9 or 10 weeks
after the layoffs), is decisive of the issue of the motivation for the layoffs. There
are some unexplained matters involved in the return of the three employees to work.
The reason why they were selected for recall rather than any of the other seven laid
off does not appear. There is no evidence that seniority considerations governed
the selection, and this may be compared with the reason advanced for the retention
of Ernest M. and Wesley Pettit. The sense of Robert Prentice's relevant testimony
is that Pedersen and 1 of the 2 others (whom Prentice did not identify) were recalled
because of the receipt of an order for the construction of a clipper. Whether the
third employee was recalled in connection with a specific order does not appear, nor
is it shown that Ernest M. and Wesley Pettit were unavailable to do the work for
which it is claimed Pedersen and another employee were recalled. The construc-
tion of clippers was admittedly in Louis Schnell's "department ," and there is un-
disputed evidence that he, Wurth, and Eakin were more adept in building clippers
then Ernest H. Pettit. The Respondent does not explain why Louis Schnell, at
least. who was described. without contradiction. by a former superintendent "as the
most important leadman" on clippers , and was senior to Lavadore in point of service,
was not recalled for the clipper job. One may also bear in mind that in response
to interrogation at the welfare committee meeting, Louis Schnell revealed that he was
"already a union member" (Pedersen'c testimony indicates that a sim.l'r statement
was made there regarding Wurth ), whereas the substance of the disclosure as to
Lavadore , Ernest H . Pettit, and Pedersen was that they favored unionization of the
shop by Local 63. One is led to wonder whether the three men were selected for
reemployment because of a belief by the management that their union sentiments
were somewhat more passive than those of others such as Wurth, Buslach , and Louis
and Wayne Schnell who were actually members of Local 63, unlike the three men
recalled . (The evidence does not establish whether Lavadore , Ernest M . Pettit,
E. V. PRENTICE MACHINE WORKS, INC. 441
and Pedersen became members after executing their applications for membership.)
Be that as it may, the claim in effect that business considerations alone governed the
recall of the 3 men may be examined in the light of the assurance of continued em-
ployment of the shop staff Robert Prentice gave to the employees only about 3 weeks
before the layoffs, and of what ultimately happened to the bid for the large Mexican
order involved in White's telephone call which the Respondent asserts precipitated
the layoffs. The order was actually placed and formalized by an agreement some
weeks before the expiration of the approximate 2-month period visualized by Robert
Prentice for the program of building up the stock machine inventory. It would
seem that with the actual placement of the order on March 8, 1957, the Respondent's
"order file" was in substantially better shape than it was at the time Robert Prentice
took some pains to reassure the employees that the shop staff would be retained.
Thus one may pertinently inquire why the Respondent, who has produced no income
figures for any period after January 1957, did not resume the construction of ma-
chines for stock when the Mexican order was safely in hand, and why it recalled
only the 3 employees, and these not until early in April 1957, about 3 or 4 weeks
before the hearing in this proceeding was held. It may be, as the Respondent in
effect contends, that the fact that it recalled only three men was dictated by business
considerations, but it also advances such considerations as the precipitating cause of
the layoffs, and the reasons assigned for these do not stand up under examination.
As already noted in that regard, the Respondent has offered no explanation for its
omission to call Mahoney; has failed to produce material evidence within its con-
trol; and has presented testimony, with respect to vital matters bearing on the issue
of discrimination, which is implausible, and which I am unable to credit for reasons
outlined previously. There is ample reason to believe that David and Robert
Prentice have not made a full and frank disclosure of the motivation for the layoffs.
Against that background, I am unable to accord overriding weight to the recall of the
3 employees in evaluating the motivation for the layoffs some 6 weeks earlier, nor,
in the light of the unexplained matters, noted above, relating to the selection of the
3, am I able to say with confidence that -business considerations alone governed the
decision to recall only 3 employees, and the selection of those recalled.
In any event, assuming that the Respondent decided some 6 weeks after the lay-
offs to recall the 3 men for business reasons, there is no inevitable inconsistency
between that action and a design by the Respondent on February 22, by means of
a suspension, curtailment, or abandonment for an indefinite time, of its program
of building machines for stock in a period when orders for custom-built machines
were slack, and through a strategically timed layoff, in such a period, of all those
identified as favoring Local 63, to dissipate that organization's majority among
the shop employees, discourage membership in the union, and demonstrate to the
employees the consequences of union adherence.28
Balancing the factors that point to an unlawful motivation against those upon
which the Respondent relies, I reach the conclusion, upon a total view of the record,
that the former heavily outweigh the latter, and that the action taken with respect
to the 10 employees on February 22 was rooted in a purpose to frustrate unioniza-
tion of the shop employees by Local 63 and to discourage membership in that
organization, and was not caused by any of the reasons advanced by the Respond-
ent. As the motivation for the action was unlawful, it would be a mere essay in
semantics to choose between a conclusion that the 10 men were discharged, as
Mahoney in effect announced in both washrooms, or that they were "laid off," either
temporarily of indefinitely Section 8 (a) (3) of the Act forbids discrimination
"in regaid to hire or tenure of employment or in any term or condition of employ-
ment to encourage or discourage membership in any labor organization." Thus,
whether the employees were discharged or "laid off," the Respondent's conduct
in either case was unlawful, and one may use either label and emerge with the
same result.
18 It will be recalled that shortly after Galipeau and others were informed by Ma-
honey that they were "canned," Gallpeau made inquiry of David Prentice about his vaca-
tion pay ; and that Prentice told Galipeau to take the matter up with the bookkeeper after
the week-end, and stated that he hoped to get "this mess" cleared up in a short while
What Prentice meant by the allusion to "this mess" cannot be determined with certainty,
but in the context in which the statement was made, and of the organizational events
that had taken place that day, and against the background of the whole record, one may
reasonably infer that "this mess" had reference to the unionization of the shop and the
layoffs that followed it; and that what he had in mind was a hope that Respondent would,
by means of the layoffs, be able to defeat such unionization at an early date and then
resume its normal production activities.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the reasons stated above, I find that by discharging or laying off the 10
employees on February 22, 1957, the Respondent violated Section 8 (a) (3) of
the Act; and interfered with, restrained, and coerced employees in the exercise of
rights guaranteed them by Section 7 of the Act, thereby violating Section 8 (a)
(1) of the Act.
E. The legality of the interrogation at the welfare committee meeting
In support of its position that the interrogation of the employees on February
22 was lawful, the Respondent stresses the absence of any evidence of antiunion
animus by the Respondent prior to that date. This, it seems to me, is beside the
point in the circumstances presented by the record. A better test of the Respond-
ent's attitude is what it did when confronted with the critical facts of organization
of the shop, and the bargaining request which followed soon thereafter. As pointed
out earlier, there can be no doubt, even on the basis of the testimony of David
and Robert Prentice alone, that they were angered by, and hostile to, the inde-
pendent exercise by the employees of their right of self-organization. In any event,
the best evidence of the Respondent's attitude toward its employees' right of self-
organization is provided by the fact that it discharged or laid off the 10 employees
to frustrate unionization of the shop by Local 63, and to discourage membership
in that organization
In its brief, the Respondent views the interrogation as an endeavor "to get the
facts" in order "to secure a basis for a sound decision" on the bargaining request.
In that regard, reliance is placed on Blue Flash Express, Inc , 109 NLRB 591, and
other cases which have applied its holding. In the cited case, the Board, noting
that the employer involved gave the employees assurances that he would not resort
to economic reprisals, upheld the right of the employer to ask his employees, indi-
vidually, "whether they had signed union authorization cards in order to enable
him to reply to the Union's request for collective bargaining" (ibid., p. 592).
The Blue Flash case, and the decisions which have followed its doctrine, are
inapposite. Assuming that a purpose of the interrogation was to determine whether
Local 63 represented a majority of the employees (although as will appear the
Respondent chose to ignore what it learned in refusing to bargain with the District
Lodge), the interrogation went far beyond such an objective and the permissible
limits of the Blue Flash case.
The interrogation involved here was not limited to an inquiry of a given em-
ployee, as in the Blue Flash case, whether he had authorized a union to represent
him. It was apparent to David and Robert Prentice, as their own testimony makes
clear, that the employees were reluctant, at least initially, to identify those who had
engaged in organizational activity. Upon manifestation of such reluctance, Robert
Prentice did not desist but continued to ply the employees with questions in varying
forms, much of them obviously designed to learn the identity of those who had
engaged in organizational activity or who favored unionization of the shop, going
so far as to request a list of those who favored unionization, when he learned that
such a list was in existence. To uphold this type of interrogation is to place in the
hands of employers an inquisitorial power which can be intimidating or, at least,
interfere with the free exercise by employees of their right of self-organization.
I find nothing in the Blue Flash doctrine to condone the type of interrogation
Robert Prentice pursued after the employees had manifested reluctance to make the
disclosures he sought. But assuming, without deciding, that the clear evidence of
such reluctance does not of itself place the interrogation that followed beyond the
pale of the Blue Flash doctrine, there are other factors which require a conclusion
that at least a great deal of the interrogation at the meeting was unlawful. It is
clear that whatever other purpose the Respondent had for the interrogation, an
underlying objective for much of the questioning was to secure information of the
identity of those who favored, and of those who did not favor, organization of
the shop by Local 63, with a view to using the information secured as a basis for
discharging or laying off the former and retaining the latter The best evidence
of such a purpose is to be found in the discharges or layoffs that occurred only
about an hour after the meeting ended, and in the identity of those retained and
expressly exempted by Mahoney in his discharge announcements. Without imply-
ing that assurances against economic reprisals. as in the Blue Flash case, inevi-
tably make interrogation of employees concerning their union activities and senti-
ments lawful, it is well to note not only that such assurances were not given at
the meeting. but that economic reprisals actually followed the disclosures made there
and were directly connected with them. What is more, unlike the employer in the
Blue Flash case, the Respondent sought information not only about the organiza-
tional activities and sentiments of those interrogated, but asked the employee com-
E. V. PRENTICE MACHINE WORKS, INC. 443
mittee members to furnish such information about others. To extend the Blue
Flash doctrine to interrogation of this type is to encourage employers to use employ-
ees as informers on their fellows as a means of countering union activity. If an
employer has a legitimate reason for seeking information whether an employee
has authorized a union to represent him, he may, in a proper case, as the Board
held in Blue Flash, ask the employee concerned to furnish it. No good reason
appears why he should ply one employee with questions about the activities or
sentiments of another. The coercive thrust of such interrogation would seem to
be obvious. In short, I hold that Robert Prentice's interrogation of the employees
at the meeting concerning the organizational activities and sentiments of other
employees was unlawful apart from any other factor bearing on the legality of
the Respondent's conduct at the meeting 29
For the reasons stated, I find that the Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed them by Section 7 of the Act,
thereby violating Section 8 (a) (1) of the Act, by its conduct at the welfare com-
mittee meeting on February 22, 1957, in interrogating employees there as to (1)
who had issued the invitation to Salmon and Roberts; (2) whether a formal vote
had been taken on the subject of the invitation; (3) how it was taken, and how
many had voted in favor of the invitation; (4) the organizational or union senti-
ments of employees attending the meeting; (5) which shop employees were not in
favor of unionization; (6) whether Rickford, Brant, and Bela "had signed .
anything asking the union to come in" or had been "included in the vote"; (7)
whether the employees "had signed anything that would give the union authority
to be our bargaining agent"; and (8) why the employees felt they needed a bargain-
ing agent. Similarly, I find that the Respondent violated Section 8 (a) (1) of the
Act as a result of Robert Prentice's request at the meeting for the production of the
list of those who favored "the union" (or, in other words, Local 63).30
F. The refusal to bargain
In response to the District Lodge's bargaining request, the Respondent wrote to
the organization on February 26, 1957, stating that the matter would be considered
at the next meeting of the board of directors and that the Respondent would com-
municate with the District Lodge shortly thereafter.
The Respondent presented testim„ny to the ertect that: The board meeting men-
tioned in the letter was held on March 4, 1957; the meeting was attended by
Richard R. Morris, one of the Respondent's attorneys in this proceeding; Morris
had been informed by the Respondent prior to the meeting that employees who had
been laid off prior to February 22 would "with one or two exceptions . .. be asked
to return to work when work became available"; at the meeting Morris told the
directors that he knew that "the Labor Board had ruled that laid-off employees
retain their status as employees with the right to vote" (in a representation election),
and that he was "unable to determine just what laid-off employees would be entitled
to vote"; and Morris therefore advised the Respondent to file a petition for a repre-
sentation election with the National Labor Relations Board.
On March 5, 1957, on behalf of the Respondent, Morris wrote a letter to the
District Lodge, stating that that organization's letter of February 22, 1957 (con-
taining the bargaining request), had been referred to him for reply, and that the
Respondent "is prepared to recognize the bargaining agent designated by the
29 See Harrisburg Building Units Co , Inc., et at., 116 NLRB 334, 351-352.
° As stated earlier, the employees were admonished at the meeting not to invite or
admit any person to the shop unless he had permission from "the office" to come there. One
may reasonably conclude that this was aimed at a repetition of an invitation such as
the one to Salmon and Roberts. It is unnecessary to decide whether the admonition was
unlawful, since the complaint does not allege it as a violation of the Act. Another matter
to note is that the testimony of the employees, taken as a whole, reflects many more ques-
tions than those as to which findings have been made It is not unlikely that at least
some of the questions to which no specific reference has been made are variants of those
that have been described, the variances resulting from differences in speech and powers
of articulation and recollection among the witnesses. I am satisfied, upon an appraisal
of the whole record and from my observation of the witnesses, that the questions which
have been made the subject of findings were in substance put by Robert Prentice. To
make findings with respect to any other questions reflected in the evidence would add
nothing of substance to the findings made, nor to the remedy to be recommended below.
This is also true of the questions Robert Prentice put to the employees as a group in the
lunchroom, and I thus deem it unnecessary to determine whether such interrogation,
under the specific circumstances presented, violated the Act.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board for the appropriate group of its employees for
collective bargaining purposes as determined by the Board."
The Respondent did not file a representation petition Explaining its omission to
do so, the Respondent presented testimony to the effect that on or about March 7,
1957, Morris called on a Board representative stationed in Portland, and informed
the latter of his intention to file a representation petition; that the representative
pointed out that where a charge alleging a refusal to bargain has been filed (as in
this case), "the Board will not entertain a petition for an election without the con-
sent of the charging party"; and that Morris "thought it futile to pursue the petition
for an election further."
Some matters may be noted before resolving the collective-bargaining issue. One
is that Morris' letter of March 5, 1957, is tantamount to a refusal by the Respondent
to bargain. Another matter is that the evidence establishes that the District Lodge,
as "the parent organization" of Local 63, is authorized by the latter to negotiate and
sign collective-bargaining agreements affecting employees represented by Local 63.
(No claim is advanced that the District Lodge lacks such authority.) Thus if Local
63 had the requisite representative status to require the Respondent to bargain at the
time of the bargaining request, the District Lodge had the same status as agent for
Local 63.
It is well established that designation of a labor organization as the representative
of employees in a bargaining unit in an election is not an essential precondition of
an employer's obligation to bargain. If the union is in fact the representative of
a majority of the employees in an appropriate unit, the employer is obligated to
bargain with the labor organization, upon appropriate request therefor, unless
he has a good-faith doubt that the union represents the majority of the employees
in the given unit. As stated earlier, Local 63 (and, therefore, the District Lodge), at
the time of the bargaining request, was the authorized collective-bargaining repre-
sentative of 8 of the 13 shop employees then employed by the Respondent, or a
majority of such employees?' (The majority did not include two shop employees
who signed membership application cards after the bargaining request was made.)
Conceding in its brief that it has not recognized the District Lodge "as the bargain-
ing agent" of the shop employees, the Respondent justifies its refusal to bargain by
contending in effect that: (1) It had a good-faith doubt that Local 63 (and, there-
fore, the District Lodge) represented a majority of the shop employees in its employ
at the time of the bargaining request; and (2) shop employees laid off prior to
February 22 "must be considered" in determining the claim of representation, and,
when so considered, Local 63 (and, hence, the District Lodge) did not represent
a majority of the unit at the time of the bargaining request. These contentions
will be examined in turn.
As for the first contention, the fact that stands out is that the disclosures made
at the welfare committee meeting should have set at rest any doubt the Respondent
entertained before the meeting began. Five of the thirteen shop employees, not
much less than half of those employed, attended the meeting. All but one of those
in attendance stated, in one form or another, either expressly or by clear implica-
tion, that they favored representation by Local 63. Projecting the large percentage
taking that position at the meeting to those not present, one would think that the
Respondent would have had good reason to conclude that a majority of the shop
employees favored representation by Local 63, particularly as only 3 of those not
present were needed, in addition to the 4 at the meeting who favored such repre-
sentation, to form a majority. In any event, an important point to bear in mind
is that in addition to stating their own sentiments, employee members of the com-
mittee told the management, in effect, both that a majority had approved the invita-
tion to the union representatives and that a majority favored representation by
Local 63.
That the Respondent, in the face of the disclosures made, should entertain any
doubt about the matter by the time the meeting ended is quite implausible, par-
ticularly in the light of the positions taken at the meeting by Galipeau and Pedersen,
in contrast to attitudes they had expressed the year before At a welfare com-
mittee meeting held in the spring or summer of 1956, David Prentice told employee
committee members that Salmon and Roberts had asked the Respondent to sign a
contract, and had stated that they "in turn would go out into the shop and make
the men join the union." As David Prentice described it in his testimony, when
he imparted this information to the employee committee members at the meeting
m The District Lodge represented a majority even if Brant, the electronics engineer, is
included in the bargaining unit. For reasons stated earlier, he has not been included in
the unit.
E. V. PRENTICE MACHINE WORKS, INC. 445
in 1956, Galipeau and Pedersen "made statements to the effect that they appreciated
we did not turn them over to the union." (What Galipeau and Pedersen told David
Prentice in 1956 is undisputed, but Salmon and Roberts give a substantially dif-
ferent version of their dealings with David Prentice than the one the latter related
to the employee members of the welfare committee. Their version is summarized
in the margin below 32 The conflict in the testimony with respect to the conversa-
tions between David Prentice and Salmon and Roberts in 1956 need not be resolved
as their dealings at that time do not materially affect any issue in this proceeding.)
Whether David Prentice's account of his conversations with Salmon and Roberts
in 1956 is true or not, it is understandable that David should express surprise at
Galipeau's disclosure at the meeting, on hebruary 22, 1957, that he was "m favor
of the union ." David Prentice's surprise was expressed in terms of an inquiry why
Galipeau "of all people" took that position. According to Galipeau, he replied
that he thought that "we were getting run over a bit, and that our grievance
[welfare] committee wasn't accomplishing anything, and . . . we weren't smart
enough to cope with you people and that we were going to have these other people
represent us." (That Galipeau made a statement of that general effect is substan-
tially undisputed. Robert Prentice quotes him to a major extent in somewhat
similar vein, although in a different context.)
What emerges from the evidence is not only that 4 of the 5 employees present
at the meeting stated, in ultimate effect, that they favored representation by Local 63,
and that the management was told in substance at the meeting that all of the shop
employees, with the exception of Rickford and Ernest M. and Wesley Pettit, had signi-
fied that they favored that organization, but that 2 employees present at the meeting,
Galipeau and Pedersen, whom the management had previously regarded as opposed
to unionization, explicitly told the management representatives, in one form or
another, that they now favored such representation. One would think that what-
ever doubt the Respondent entertained before the meeting would have been set
at rest by the positions expressed by Galipeau and Pedersen, particularly as both
went so far as to state the reasons why they desired such representation.
In addition, there are indications in Robert Prentice's testimony that the alleged
doubt is voiced as a matter of convenience rather than as one of conviction. Ac-
cording to Prentice, Galipeau, responding to a question as to "how many men"
had invited Salmon and Roberts to the lunchroom, replied, "Well, let's say nine."
After quoting the reply, Prentice testified: "It was more of an attempt to pass
over the question, it seemed to me, but I took it for what it was worth and I
passed it over." How unjustified this characterization of Galipeau' s statement was
may be measured by the fact that at the time of the meeting 4 of the shop em-
-ployees were already members of Local 63, that at least 3 of these asked Salmon,
on February 20, 1957, "what to do" about organizing the shop, and that, in addi-
tion , 5 or 6 employees who were not members signified to Wurth, in one form or
another, that they approved the invitation to the union representatives. It is evident
that there was substantial accuracy in Galipeau's reply, even as Prentice quotes
him. Particularly in the light of Galipeau's statement to David Prentice in the
spring or summer of 1956, to which previous reference has been made, one may
well inquire why Robert Prentice should regard Galipeau's reply as "more of an
attempt to pass over the question," and why Prentice should belittle it. The answer
is, I am convinced, that Robert Prentice's characterization of Galipeau's reply is
no more than a self-serving posture taken at the hearing to play down the evidence
pointing to the fact that the Respondent had no real doubt that a majority of the
shop employees favored representation by Local 63. Additional indications of this
attitude may be found in the reasons Robert Prentice gave in his testimony for
doubting that Local 63 represented a majority of the shop employees. Under
cross-examination, after agreeing that "a certain number of them [employee com-
mittee members] indicated they wanted a union ," he was asked whether "they
99 In effect denying a claim by David Prentice that in the spring or summer of 1956
they made a proposal to the Respondent that it sign a contract with the District Lodge,
and that they told David Prentice that they would then "make the men join the union,"
Salmon and Roberts testified, in substance, that : At the time in question, Local 63 had
some members among the shop employees who were interested in having the shop organized ;
as a preliminary to contemplated efforts to organize the employees, they (Salmon and
Roberts) visited David Prentice to become acquainted with the Respondent' s management
and to familiarize it with the District Lodge's union and contract procedures ; to that
end, they gave Prentice a copy of the organization's "standard agreement in the Portland
area" ; they asked Prentice's permission to hold a lunch period meeting at the plant to
tell the employees "the benefits of the union," suggesting that Prentice attend and the
latter rejected the request
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told you a majority of the shop did," and he replied, "Well, I don't know. Hans
Pedersen said, no, he hadn't authorized them to bargain for him. Wes Pettit said,
`No, I don't want a union,' there were only about six men present there. Two
of the six to me indicated that they didn't want the local 63 to bargain for
them." (Actually, there were five shop employees at the meeting.) It may be
noted that Prentice was not quite responsive to the question, for he did not state
whether he was told that a majority of the shop employees "wanted a union."
The fact is that he was so informed during the course of the meeting, and his failure
to give a responsive answer to an obviously important question, and his allusions
instead to Pedersen and Wesley Pettit, gave me the impression that he was not being
forthright. Moreover, the reference to Pedersen suggests the slenderness of the
reed upon which the Respondent leans to support its claim of good faith, for it
ignores the full context of the meeting and the disclosures made there. In response
to a question by Robert Prentice at the meeting whether "we had stated anything
that would give the union authority to be our bargaining agent," Pedersen replied
"that we hadn't signed anything except these cards for membership," and (ap-
parently in conjunction with that statement) expressed his understanding that by
the act of signing the card he had not authorized Local 63 to act as his bargaining
agent. (The sense of Pedersen's testimony is that he made the statement because
he did not know whether his authorization took effect "at the time we signed
the cards, or whether it was after we became members.") However, after Peder-
sen made this observation about the effect of his execution of the application card,
Wurth, according to Robert Prentice (and Pedersen testified in similar vein, al-
though identifying the employee as "George") remarked: "As I understand it,
if 51 percent of the employees sign up with the union, then they automatically be-
come their bargaining agent." One may reasonably infer that this remark was
made as a correction of Pedersen's statement. Pedersen offered no dissent to
Wurth's explanation. What is more, at a subsequent point, in reply to questioning
,by Robert Prentice as to why the employees felt they needed a bargaining repre-
sentative (or "why we wanted the union in," as Pedersen put it), Pedersen stated:
"I for one want a union card because it's much easier to get a job if you do have
a union card." That Pedersen made a statement to that effect is undisputed (is
supported, in fact, by David Prentice's testimony). It should have been quite clear
to both David and Robert Prentice from Pedersen's remarks that he favored
representation by Local 63, notwithstanding Pedersen's conception of the effect
of his application card. To focus upon Pedersen's interpretation of his member-
ship application and Wesley Pettit's statement, as both David and Robert Prentice
in effect do in their testimony, suggests a disposition to slur over the substantial
indications at the meeting that a majority of the shop employees favored repre-
sentation by Local 63.33 From the disclosures made during the course of the meeting
the Respondent, I am convinced, had every reason to conclude, before the meet-
ing ended, that Local 63 represented a majority of the shop employees on its pay-
roll at that time.
The Respondent admittedly did not ask either Local 63 or the District Lodge
for proof of majority representation. This, too, has a pertinent bearing on the
Respondent's claim of good faith. To be sure, neither Salmon nor Roberts offered
such proof, but they did request permission to attend the welfare committee meet-
ing. The request was rejected. It seems to me that if the Respondent was really
interested in determining the representative status of either Local 63 or the
District Lodge, it would have followed the reasonable course of permitting
Salmon and Roberts to attend and thus afford them an opportunity to help the
Respondent "find out the facts" of the claim of representation asserted in the
bargaining request. The failure of the Respondent, in the circumstances presented,
to ask for proof supporting the representation claim, or to afford the union rep-
resentatives an opportunity to establish their claim at the welfare committee meet-
ing where it was discussed, contributes additional support to the conclusion that
the refusal to bargain was not based upon a good-faith doubt of the claim 34
33 In that connection, one may note the following testimony by David Prentice : "The
only definite statement that I recall was when Wes Pettit got up and he said that he did
not want the union, and he knew his dad (lid not want the union . . . and Pedersen made
the statement that he didn't think-it wasn't a matter of when they signed the card, they
weren't signing the men (apparently meaning Salmon and Roberts) to be bargaining agents
or anything. He was just signing a card so he could belong to the union and have
security "
4Among other cases, see N L. R B v Trimfit of California, Inc, 211 F 2d 206
(C A 9) ; N L. R B. v. Inter-City Advertising Co of Charlotte, N C, Inc., Pt at, 190 F
2d 420 (C. A 4).
E. V. PRENTICE MACHINE WORKS, INC. 447
I am unable to view the interrogation at the welfare committee meeting as an
effort, in good faith , to get at the facts of the claim of representation , for there
is ample reason to conclude that the basic aim of the interrogation was to learn
the identity of those responsible for the invitation to the union representatives or
favoring union representation , with a view to discharge or layoff of those so
identified . It may be, as Robert Prentice testified , that his initial purpose in call-
ing the meeting, while he was in the lunchroom , was "to find out if the men had
invited the union representatives into the shop " (or, as he stated at another point,
"to find out who invited them over, or how many invited them over" ), but one
may fairly infer that at least after the bargaining request was served, the objective
of the interrogation was to secure information upon which to base the discrimina-
tion that followed soon after the meeting rather than for the purpose of determin-
ing the validity of the claim of representation. The fact that the Respondent de-
cided to petition the Board for an election adds nothing to its professions of good
faith. It is enough to point out in that connection that the unfair labor practices
which preceded the decision would hardly provide a suitable background for an
untrammeled expression of the employees ' representation sentiments.
In sum, I find that the Respondent 's refusal to bargain was not based upon a good-
faith doubt that Local 63 (and the District Lodge ) represented a majority of the shop
employees , but, on the contrary , that it stemmed from hostility to the principles of
collective bargaining.
As support for its claim that employees laid off prior to February 22 "must
be considered" in determining the question of whether Local 63 (and the District
Lodge ) had the requisite representative status at the time of the bargaining request,
the Respondent points to testimony by Robert Prentice that the Respondent in-
tends "to call them back as quickly as possible ." The other side of the coin is,
however, that the record is barren of evidence that any of the employees in question
have any expectation or desire to return , or are even available for reemployment by
the Respondent . For that reason alone there would appear to be no justification for
the shackling of the statutory rights and guarantees of the shop employees in the
Respondent 's employ on February 22, 1957, to Robert Prentice 's subjective claim
that he expects to recall employees "laid off" prior to that date if business warrants.
But there is an even more decisive reason for the rejection of the contention
under consideration . Implicit in the claim is a position that the employees in
question were only temporarily laid off. A better guide to a determination of their
status is a look at the evidence of what actually took place at the time they were
laid off. The greater part of these layoffs occurred at various points between
July 1956 ( when the shop staff stood at a peak of 29) and some point in October 1956,
resulting in a crew of 16 in that month . Robert Prentice admittedly "had nothing
to do directly" with the layoffs in 1956. David Prentice , who was then the Re-
spondent 's manager , had nothing to do with the selection of the men laid off, nor
had he any connection with the layoffs other than to give the shop superintendent
instructions to reduce the staff by a specified number. It is undisputed that Otto
Bjelland, who was the superintendent during David Prentice's tenure as manager,
told those he laid off that orders had dropped off considerably , and that it was
therefore necessary to reduce the shop crew . He had no discussion with any of
the employees concerning the possibility of a return to work. In view of this
undisputed evidence , I find credible Bjelland's testimony that the layoffs were not
temporary. Three employees were "laid off ," according to Robert Prentice , during
his tenure as manager , reducing the staff from 16 (as it stood in December 1956)
to the 13 on the payroll on February 22, 1957. One of the three "was dropped,"
as Robert Prentice put it, and he conceded that the employee would not be re-
employed because of an alleged act of misconduct after the layoff. Another was
"laid off" for inefficiency. Robert Prentice could not recall the name of the third
employee "laid off" during his tenure , and the circumstances of the alleged layoff
do not appear.
From what has been said above , there is no basis for any claim that the layoffs
between the peak employment period in July 1956 and February 22, 1957, were
of a temporary nature. The claim has an artificial flavor, and this is manifest not
only from the actual evidence bearing on the layoffs prior to February 22, but from
what appeared to me to be a careful avoidance by Robert Prentice of words of
discharge in describing the action taken with respect to various employees. Thus,
in his testimony , an employee who was obviously discharged because he "tapped all
the (Prentice ] brothers . . . for a loan" was "laid off," although Prentice added
later that he was "permanently laid off." Also , an employee who was plainly termi-
nated for inefficiency was "laid off ," and this was coupled with what appeared to
me to be implausible testimony by Prentice that the employee would be recalled in
the event production reached the peak of 1956. The sum of the matter is that the
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who were "laid off" prior to February 22, 1957, and whom the Respondent
would take into account in determining the District Lodge's claim of representation,
were actually terminated, and this of itself requires rejection of the Respondent's
second contention with respect to the collective bargaining issue.35
For the reasons stated above, I find that: The District Lodge was, on Febru-
ary 22, 1957, and has been at all times since, within the meaning of Section 9 (a)
of the Act, the representative of the employees in the unit found above to be
appropriate for the purposes of collective bargaining; the Respondent unlawfully
refused to bargain with the District Lodge as such representative on March 5, 1957,
with respect to wages, hours of employment, and other conditions of employment,
and has since so refused; and by such conduct, the Respondent has violated Section
8 (a) (5) of the Act, and has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed them by Section 7 of the Act, thereby violating
Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section 1, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1), (3), and (5) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
The discharge or layoff of the 10 employees, and the Respondent's refusal to bar-
gain , affect the heart of the rights guaranteed employees by the Act.36 The rights
involved are closely related to others guaranteed by Section 7 of the Act. In view
of the nature of the unfair labor practices found above, there is reasonable ground
to anticipate that the Respondent will infringe upon such other rights in the future
unless appropriately restrained. Therefore, in order to make effective the inter-
dependent guarantees of Section 7, I shall recommend an order below which will
in effect require the Respondent to refrain in the future from abridging any of the
rights guaranteed employees by said Section 7.37
In its brief, the Respondent takes the position, in substance, that if a finding
of discrimination is made, the 10 employees affected are not entitled to "credit for
work opportunities lost because of economic conditions." The reach of this position
is not quite clear, but from the context in which the argument is made, it appears
to be directed not only to the back-pay remedy usually prescribed in cases of dis-
crimination, but against any requirement that the Respondent offer reinstatement
to the seven individuals it has not reemployed. As addressed to the back-pay remedy,
the position is prematurely asserted, for any allowance to which the Respondent is
properly entitled may be dealt with during the compliance stage of this proceeding.
With respect to the question of reinstatement, the position appears to be bottomed
on the premise that the discharges or layoffs were based, at least in part, on a lack
of work for the men involved. This, however, runs counter to the weight of the
evidence and to the finding made, which is that the discharges or layoffs were rooted
in an unlawful purpose, and were not motivated by economic considerations. More-
over, judging by what Robert Prentice told the employees about the beginning of
February 1957, the Respondent planned to keep the entire shop staff employed in
the construction of machines for stock for a period well beyond the date of the lay-
offs. It may be that at some point after February 22, 1957, the Respondent would
86 The Respondent cites a number of cases (for example, American Transformer Com-
pany, 89 NLRB 824) in which the Board has ruled that "laid off" employees were eligible
to vote in representation elections. It is unnecessary to undertake an analysis of these
cases. Without implying that an employer in an unfair labor practice case may Insist
that "laid off" employees "must be considered" in determining a claim of representation,
it is enough to point out that the Board's holding in each of the cases cited was grounded
on particular reasons which governed its action, and that none of the reasons are present
here. In short, the cases are Inapposite.
89 See N. L. R. B v Entwistle Mfg. Co, 120 F. 2d 532 (C. A. 4).
87 May Department Stores v. N. L. R. B., 326 U. S. 376; Bethlehem Steel Company v.
N. L. R. B., 120 F. 2d 641 (C. A., D. C.).
E. V. PRENTICE MACHINE WORKS, INC. 449•
have laid off some or all of the 10 men because of valid economic considerations,
but the operative facts are that the discharges or layoffs did not rest upon such rea-
sons, and that the work of the 10 employees was brought to a halt on February 22
because of unlawful reasons. Upon the record as made, I can see no reason to dis-
entangle the Respondent from the consequences of its own conduct, at the expense
of the employees, with a speculation that had they not been discriminated against
on February 22, they would have been laid off at some subsequent point for valid
reasons. The operative facts and the remedial purposes of the Act require that the
Respondent make a good-faith offer of reinstatement to each of the 7 employees it
has not reemployed, and make each of the 10 men whole, under the terms of the
order recommended below, for any loss of pay each incurred as a result of the
discrimination against him.
Having found that the Respondent laid off or discharged Ernest H. Pettit, Frederick
D. Buslach, Hans O. Pedersen, Robert M. Lavadore, Melvin L. Eakin, Louis C.
Schnell, Wayne H. Schnell, Paul J. Galipeau, Ralph H. Strunk, and Richard L. Wurth
on February 22, 1957, in violation of Section 8 (a) (3) of the Act, and that the
Respondent subsequently reemployed Robert M. Lavadore, Ernest H. Pettit, and
Hans O. Pedersen, I shall recommend that the Respondent offer each of the em-
ployees named above who have not been reemployed by the Respondent, immediate
and full reinstatement to his former or a substantially equivalent position,38 without
prejudice to his seniority and other rights and privileges, and that the Respondent
make each of them whole for any loss of pay he may have suffered by reason of
the discrimination against him by payment to him of a sum of money equal to the
amount of wages he would have earned, but for his discharge or layoff, between
February 22, 1957, and the date of a proper offer of reinstatement to him as afore-
said; and that the Respondent make Robert M. Lavadore, Ernest H. Pettit, and Hans
0. Pedersen similarly whole by payment to each of a sum of money equal to the
amount of wages he would have earned, but for the discrimination against him,
between February 22, 1957, and the date of his reemployment. I shall also recom-
mend that loss of pay for each of the 10 employees named above be computed on
the basis of each separate quarter, or portion thereof, during the period from the
date of the discharge or layoff of each such employee to the said proper offer of
reinstatement, or date of reemployment, as the case may be, and that the periods
begin with the respective first days of January, April, July, and October. Loss of
pay shall be determined by deducting from a sum equal to that which each of the
said employees normally would have earned in each such quarter, or portion thereof,
his net earnings ,39 if any, in other employment during that period . Earnings in one
quarter shall have no effect upon the back pay due any employee for any other
quarter. The Respondent shall preserve and make available to the National Labor
Relations Board or its agents upon request, for examination and copying, all pay-
roll records, social-security payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the amounts of back pay due and
the rights of reemployment under the terms of the order recommended herein.
Upon the basis of the foregoing findings of fact, and upon the entire record in these
proceedings, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material to this proceeding, an
employer within the meaning of Section 2 (2) of the Act.
2. The District Lodge is, and has been at all times material to this proceeding, a
labor organization within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees employed by the Respondent at its
plant in Portland, Oregon, excluding office, professional, and clerical employees,
electronics engineers, draftsmen, guards, and supervisors as defined in the Act, have,
at all times material to this proceeding, constituted, and now constitute, a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
88 In accordance with the Board's past interpretation, the expression "former, or a
substantially equivalent, position" is intended to mean "former position wherever possible,
but if such position is no longer in existence, then to a substantially equivalent position."
See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
m See Crossett Lumber Company, 8 NLRB 440, for an applicable construction of thi,
term "net earnings."
483142-59-vol 120-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The District Lodge was, on February 22, 1957, and has at all times since been,
the representative of all the employees in the aforesaid appropriate unit for the pur
poses of collective bargaining within the meaning of Section 9 (a) of the Act.
5. By failing and refusing on March 5, 1957, and during the period thereafter, as
found above, to bargain collectively with the District Lodge, as the representative
of the employees in the aforesaid appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act.
6. By discriminatorily discharging or laying off employees, as found above, the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
7. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request , with International Association
of Machinists, District Lodge No. 24, AFL-CIO, as the representative of all
the employees in the bargaining unit described below with respect to rates of
pay, wages, hours of employment, or other conditions of employment, and if an
agreement is reached, embody it in a signed contract. The bargaining unit is:
All production and maintenance employees employed by us at our
plant in Portland, Oregon, excluding office, professional , and clerical
employees, electronics engineers , draftsmen, guards, and supervisors as
defined in the National Labor Relations Act.
WE WILL NOT discourage membership by our employees in any labor or-
ganization , or encourage membership in any such organization , by discrimina-
torily laying off or discharging any employee, or in any other manner
discriminating against him in regard to his hire, tenure of employment, or any
other term or condition of employment, except as authorized by Section 8 (a)
(3) of the National Labor Relations Act.
WE WILL NOT interrogate any employee, or seek information from him, with
respect to his membership or interest in, sympathy for, or activities on behalf
of, any labor organization, or with regard to the membership or interest in,
sympathy for, or activities on behalf of, any labor organization, by any other
employee, in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the National Labor Relations Act.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce em-
ployees in the exercise of the right to self-organization, to form, join, or assist
any labor organization, to join or assist International Association of Machinists,
District Lodge No. 24, AFL-CIO, or any labor organization affiliated with it, to
bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection, and to refrain from any or all of such activities, except to
the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to Richard L. Wurth, Frederick D. Buslach, Paul J. Galipeau,
Ralph H. Strunk, Melvin L. Eakin, Louis C. Schnell, and Wayne H Schnell
immediate and full reinstatement to their respective former, or substantially
equivalent, positions, without prejudice to their seniority and other rights and
privileges.
WE WILL make each of the employees named above and Robert M. Lavadore,
Ernest H. Pettit, and Hans O. Pedersen whole for any loss of pay they may
have suffered as a result of the discrimination against them.
ILLINOIS MALLEABLE IRON COMPANY 451
All of our employees are free to become, remain , or refrain from becoming, mem-
bers of any labor organization , except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the National Labor Rela-
tions Act.
E. V. PRENTICE MACHINE WORKS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Illinois Malleable Iron Company and Appleton Electric Com-
pany and Local No. 788, International Union , United Automo-
bile, Aircraft and Agricultural Implement Workers of Amer-
ica, AFL-CIO, Charging Party and Local 1031 , International
Brotherhood of Electrical Workers, AFL -CIO, Party to the
Contract. Case No.13-CA-1866. April 16,1958
DECISION AND ORDER
On January 25, 1957 , Trial Examiner Louis Plost issued his Inter-
mediate Report in the above -entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner fur-
ther found that the Respondents had not engaged in certain other
unfair labor practices , and recommended that the complaint be dis-
missed with respect to such allegations . Thereafter , the Respond-
ents, the IBEW , the General Counsel , and the Charging Party filed
exceptions with supporting briefs.'
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
Intermediate Report, the exceptions and briefs , and the entire record
in the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the exceptions , additions,
and modifications noted below.
1. We agree with the Trial Examiner that the Respondents vio-
lated Section 8 (a) (2) and ( 1) of the Act by applying and enforc-
ing the union-security contract between the IBEW and Appleton
and the two supplemental agreements to employees of Malleable
hired after September 21, 1954; by specifically requiring these em-
ployees to join the 1BEW as a condition of employment and to sign
clues checkoff authorization cards in favor of the IBEW; by deduct-
1 The Respondents' request for oral argument is hereby denied, as we are satisfied that
the briefs and record define the issues with sufficient clarity.
120 NLRB No 68