Elliott-Williams Co., Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1963

143 N.L.R.B. 811 (N.L.R.B. 1963)

ELLIOTT-WILLIAMS CO., INC. 811
APPENDIX B
NOTICE
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT threaten physical injury to, or in any other manner restrain
or coerce , Fred Caldwell, or any other employee of Blue Diamond Coal Com-
pany or any other employer , as defined in the Act, within the geographical
limits of the jurisdiction of District 30, United Mine Workers of America, in
the exercise of rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized in Section
8(a)(3) of the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
DISTRICT 30, UNITED MINE
WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By----------(R
---
epres
------
entative
---) -----------
(Title----) ------
UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By---------- ------------ ---------- -Ti
--
tl
-
e
-
)
------
(Representative
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati , Ohio, 45202, Telephone No. Dunbar
1-1420, if they have any question concerning this notice or compliance with its
provisions
Elliott-Williams Co., Inc. and Sheet Metal Workers ' Interna-
tional Association , Local 503, AFL-CIO. Case No. 25-CA-1657.
July 24, 1963
DECISION AND ORDER
On April 16, 1963, Henry S. Salim issued his Intermediate Report
in the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor-
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate,
Report, the exceptions and brief, and the entire record in the case,,
143 NLRB No. 86.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
I 'We do not adopt the Trial Examiner 's statements referring to an asserted conversa-
tion between James Elliott, president of Respondent Company, and one Conrad, an em-
ployee, in which Elliott purportedly said he would give the employees 24 hours to choose
between representation by the Union or by their own organization . There is no evidence
of record to support these statements of the Trial Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on October 5, 1962, by Sheet Metal Workers ' International
Association, Local 503, AFL-CIO, herein called the Union, against Elliott-Williams
Co., Inc., herein called both the Respondent and the Company, the Regional Direc-
tor, acting for the General Counsel, issued a complaint on November 16, 1962.
The complaint alleges the commission of unfair labor practices by the Respondent
Employer within the meaning of Section 8(a)(1) and 8(a)(5) and Section 2(6)
and (7 ) of the National Labor Relations Act, 61 Stat . 135, as amended , herein
called the Act.
With respect to the unfair labor practices , the complaint alleges, in substance,
that the Respondent has refused to bargain , and threatened , interrogated , polled,
promised economic benefits to its employees , and offered to bargain directly with
them, if they refrained from union activities on behalf of the Charging Union.
Copies of the complaint and notice were served upon the parties. The answer
of Respondent denies the commission of any unfair labor practices . Pursuant to
notice, a hearing was held in Indianapolis , Indiana , on January 28, 29, and 30,
1963, before Trial Examiner Henry S. Salim. All parties were represented by
counsel and were afforded full opportunity to participate in the hearing and to in-
troduce relevant evidence bearing on the issues , to argue the issues orally upon the
record , and to file briefs and proposed findings of fact and conclusions of law. Briefs
were filed by the parties on February 20, 1963, which have been fully considered.
Upon the entire record in the case, and from observation of the demeanor of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Indiana corporation , maintains its place of business in Indianap-
olis, where it is engaged in producing and installing walk-in refrigerators . Respond-
ent, during the past year , which period is representative of all times material herein,
manufactured , sold, and shipped from its plant finished products valued in excess
of $50,000 to points outside the State of Indiana It is found , therefore , that Re-
spondent Company is engaged in commerce within the meaning of the Act and
that it would effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers ' International Association, Local 503, AFL-CIO , is a labor
organization within the meaning of Section 2(5) of the Act.
Resolutions of Credibility
The witnesses for the General Counsel and Respondent are in sharp conflict as to
the salient issues in this case . Nevertheless , after observing the witnesses, and
analyzing the record and inferences to be drawn therefrom , this conflict in testi-
mony is resolved in favor of the versions told by the General Counsel's witnesses.
Adams', Young's, Scott's, Howson 's, and Spurrier 's demeanor while testifying and
their forthright manner in answering questions impressed the trier of these facts.
This impression that they were testifying truthfully became a conviction when their
stories were found to be both consistent with the attendant circumstances in this
case and not substantially shaken by able counsel for the Respondent who vigorously
and thoroughly cross-examined them.
ELLIOTT-WILLIAMS CO., INC. 813
Considerable credence also has been placed upon the testimony of those witnesses
who were in the employ of Respondent at the time they testified. As such, they
depended on their jobs for their livelihood and they understood that after testifying
they would continue in the employ of Respondent. Moreover, the trier of these
facts is not unmindful of the predicament of an employee who testifies adversely to
his employer's interests, being apprehensive and fearful, with some measure of
justification, as to the future possibility of retaliatory action. These practical con-
siderations coupled with the normal workings of human nature have led the Trial
Examiner to credit the testimony of Hobbs, Eldridge, Westfall, and Allen who are
presently employed by Respondent, as it is believed they were impelled to tell the
truth regardless of what consequences might eventuate.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Sometime around the first of August 1962, the Union began an organizational
campaign among the Respondent's employees. At a union meeting on August 9,
approximately 20 of the 24 employees in the appropriate unit signed union author-
ization cards. On August 13, 1962, the Union claimed it represented a majority
of Respondent's employees and requested Respondent Company president, James
H. Elliott, to recognize the Union and bargain with it for these employees. Elliott
replied that since this was the first he had heard of it, he would prefer the Union
to file a representation petition with the Board requesting an election, which the
Union did on the same day. On direct examination, Elliott testified that the union
officials asked him if he wished to see the union authorization cards signed by his
employees and "[he] said no, I do not." Respondent received notice of the Union
filing its petition the following day. Shortly thereafter, the Board ordered an elec-
tion to be held on October 25, 1962, to ascertain whether the employees desired to
be represented by the Union. When the Union filed a charge on October 5, the
Regional Director withdrew this order on October 17, 1962, and dismissed the
petition on October 18, 1962.
The day after the Union asked for recognition, August 14, Scott, an employee,
testified that Robert Henry, a supervisor,' spoke to employees Thomas, White, Boller,
Spurrier, Howson, and himself as follows:
So you guys want a union... He says, well, there is no use lying about it
now, the union men were here yesterday. And he says I don't object to a
union, if it is for the men. But if it is Sheet Metal Union, he says, they
will require Journeymen to do sheet metal work and all of you guys will be
out of a job. Because I don't think any of you can qualify. He said, it will
take at least 4 years of apprenticeship for a journeyman
He said that he thought the shop union would be all right. He said he
would be all for that himself He said he would even vote for that himself
if it was just for a shop union.
On or about August 14, Mrs James Elliott, wife of the company president and
herself vice president, spoke to Roy Young at his workbench in the plant and asked
"what was going on . about this union " She chided Young for not coming to
the plant officials first rather than going to "strangers " She then asked Young
what the employees wanted. Young testified that "she went on to explain that cer-
tain jobs pay a certain amount of money and if [the employees] didn't do it for that,
they would get somebody else that would." She then asked Young if he and a
group of the employees would be agreeable to talking about this matter with her
husband. Young told her he would see and let her know after he had discussed this
matter with his fellow employees
The next day Young advised Mrs. Elliott that the men were unwilling to discuss
the matter. The same day, August 15, Mrs. Elliott called Young to the office and
"insisted" that the employees discuss the union matter with her husband
Thereupon Young selected four other employees besides himself 2 and they went
as a group to Elliott's office. Elliott wanted to know why they had gone to the
Union rather than seeing him first. Elliott told this group of employees that he
would prefer to deal with them rather than Sheet Metal Workers' Union. When
the employees explained to Elliott that they needed a union to represent them, he
replied that a union "would be a waste of money" as he would have to hire a lawyer
and the employees would have to pay union dues Tt was elicited on cross-
'The General Counsel contends Henry is a supervisor which Respondent denies See
page 816 ,rfra, where it is found Henry is a supervisor
2 Freidt, Hobbs, 1',ldridge, and Westfall
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examination that Elliott told the employees he thought they should be represented
by an "independent" union rather than Sheet Metal Workers' Union as he believed
the employees would get just as much if they had their own union. When the em-
ployees asked Elliott what the procedure was for dropping Sheet Metal Workers'
Union, he suggested to the employees that they could tell the union officials they
no longer wanted the Union to represent them.
Elliott requested the employee group to draw up a list of their demands and
submit it to him and he would look them over and see if he could agree to it.
The employees advised Elliott they would discuss it with the other employees and
let him know whereupon Elliott suggested that they hold a meeting of the employees
in order to determine what they wished to do.
That same day, August 15, 1962, an announcement was made over the plant's
loudspeaker system that the employees should assemble in a particular part of the
plant 3 After the employees were assembled, the employees' group, who had pre-
viously discussed union matters with Elliott at the meeting in his office, then pro-
ceeded to tell the other employees what had transpired in their meeting with Elliott.
They decided to hold a secret vote as to whether they preferred to be represented
by Sheet Metal Workers' Union or an independent union of their own. When the
votes were tabulated, it was found that all the employees, except one, voted for
Sheet Metal Workers' Union.
Shortly thereafter, Henry, a supervisor who was in charge of the metal shop,
approached different employees at various times and showed them a sheet of paper
on which he had written certain proposals with respect to wages, vacations, seniority,
overtime, and other working conditions . He told these employees that if they
dropped the Union, he was reasonably certain that Elliott would agree to go along
with these proposals .4 Henry also told Van Hobbs, who is presently employed by
the Respondent Company, that: "He thought we [the employees] could get a 10¢
raise and later, after the Union was dropped, we could negotiate a better contract."
Hobbs testified that immediately after this conversation with Henry, he saw Henry
go to Elliott's office and speak with him and his wife.
Around the first week in September, Henry spoke to Young in the plant during
working hours and asked him "if we would go for an independent union, a shop
union . And he wanted to know if we would take a vote on it."
Young was agreeable so Henry assembled the employees during working hours
(as on the first "election") and the employees voted by secret ballot as to whether
they preferred Sheet Metal Workers' Union or an independent union All the
employees voted for the Sheet Metal Workers' Union, except two.5
At approximately the same time that this second "election" was held, Henry told
Edward R. Adams, an employee, that if Sheet Metal Workers' Union were success-
ful in its efforts to represent the employees the Company would abolish vacation
pay and Christmas bonuses. William Allen, who is presently employed by Respond-
ent, testified that Henry told him, "If we voted the Union in, that the Company
would close the doors." Westfall testified that Henry said to him that "Mr. Elliott
wouldn't sign the [charging] union contract."
On or about October 2, Henry told Scott, an employee, that if the employees,
"vote this union in, all you're voting is a strike. He said what you ought to do is
get a few of the guys to go and drop this thing." Scott also testified that upon orders
from Henry, he went around the plant and the employees again were polled as to
which union they preferred. Scott also testified that Henry instructed him to tell
the employees that if they would agree to drop the Sheet Metal Workers' Union,
they would have restored to them their overtime, which had been abolished, and
that they would receive raises in pay and other benefits. When Scott expressed
apprehension that the employees might be discharged because of their union activities,
Henry said: "If they don't believe you, tell them I'll give them my personal guarantee
they are not going to lose their jobs."
In the early part of October, some of the employees feared that the poll of the
employees as to their union sentiments which had been taken by Scott, at the request
of Henry, the supervisor, might jeopardize their jobs. Being fearful of what might
eventuate from this, three employees, Eldridge, Westfall, and Conrad, expressed their
feelings in this regard to Denkins, another employee. Denkins suggested that they
talk to Elliott, president of the Company, but they demurred. Denkins, unknown
8 The announcement was made by Deakins, an employee, who first received permission
from Respondent to do so Elliott admits be heard the announcement
* When Young, an employee, accused Henry of doing this on orders from Elliott, he
denied it, stating that these proposals were his own
5 Henry voted in this "election."
ELLIOTT-WILLIAMS CO., INC. 815
to these three employees, and on his own initiative, evidently saw Elliott, whereupon
Denkins told the three employees that Elliott wanted to see them in his office. On
cross-examination, Westfall, who is presently employed by Respondent, testified
that the reason they wanted to talk to Elliott was to ascertain what Elliott would agree
to grant them in the way of working conditions and wages if the employees were
to drop the Union .6
During the course of this meeting, Elliott informed this group of three employees
that he was granting a 10-cent-an-hour wage increase to all the employees. However,
Elliott stated he would prefer the employees to organize a committee and "have a
contract of [their] own and have [their] own committee." In this way, Eldridge, a
member of the employees' committee, testified, Elliott said: "When we wanted to
talk over something with him, we could come directly and talk to him-the com-
mittee could come and talk to him-the elected committee." When the discussion
turned to dropping the Sheet Metal Workers' Union, the employees told Elliott
that they did no know how to go about it. At that point Elliott telephoned his lawyer
and in a four-way conversation (each of the three employees speaking on an ex-
tension), the lawyer advised them how they could go about dropping the Union.
After receiving this advice, the employees told Elliott they had no money to hire
a lawyer whereupon Mrs. Elliott spoke up and suggested to her hubsand that he
give the employees the money to pay for a lawyer. Elliott stated that this was against
the law "but he said he could let [the employees] have the money to buy a new truck.
And whatever we done with it was up to us. And he could arrange a way for us to
pay him back." The meeting then came to a close.
The next day Elliott saw Conrad, one of the three conferees, and asked him whether
they had come to a decision. Conrad replied in the negative. Elliott then said he
would give them 24 hours to make up their minds.
The following day, in early October,? Mrs. Elliott, vice president of the Company,
came to Westfall's workbench (one of the three conferees) and called him a liar.
According to Westfall she said: "You lied to me in the office. You made us believe
you were dropping [the Union] and you weren't going to go ahead and push it any
further." A few days later Mrs. Elliott again came to Westfall's workbench and asked
him if he had anything to say "about this union deal."
On October 15, Mrs. Elliott spoke again to Westfall in the plant. The following
is Westf all's testimony:
Well, she confronted me out there. She said, Ronnie, this has come down
just between me and you; me and you are the only ones that can stop it.
She said yes, you are the one. And I said no, I am not the one. She said it
just comes down between me and you, we are the only ones to straighten this
thing out. I said I wasn't, again. And she said I have seen you around the
shop, the way you are with men. All the guys that got any problem they
come to you and talk it over with you. And I said no.
She said that she would like for me to help her out and stop this thing be-
fore it went any further. I said I couldn't do that. She said I know you
can. You have got a lot of power with the men. And I still said no. She
said I was just like a little boy. She would like to do me like she did her
son Mike, turn me over and spank me and take a stick to my legs. And I
said I looked like I am a little bigger than a boy. She said you are a little
boy, you just haven't been around as long as me and Jim [her husband].
You don't understand these things. You should think it over and try to
understand things and help us out. I said I couldn't.
She said well, couldn't you just go around and talk to the men and find
out what they think about it. And I said what if they told me something
and I went and told you and it ended up being a lie. She said, well, I would
believe you no matter what you said. If you told me something to tell them
and I found out later it was a lie and everybody would be mad at me. I
couldn't go ahead and do this thing, because I have to work with all of the
guys. And she said, well, I want you to think it over and I'll see you later
about it. So, that was in the evening.
And the next morning, around 9:00 o'clock, she came back in and wanted
to know my answer on this. And I told her I couldn't do it. She said okay,
Ronnie, you are the doctor now, you can take the medicine and walked away.
9 Elliott testified that these three employees "were interested in seeing if they could get
an independent organization "
7 The charge was served on Respondent on October 6, 1962.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question of whether the Act has been violated requires not only an appraisal
of the particular circumstances which have been described above, but also a deter-
mination of whether the Respondent is liable, as the General Counsel contends, for
the activities and statements of Henry who Respondent denies is a supervisor within
the meaning of Section 2(11) of the Acts For the reasons hereinafter explicated,
it is found that Henry is a supervisor so as to render the Respondent liable for
Henry's conduct. The Board and the courts have held in interpreting this section
of the Act that it must be viewed disjunctively; any one of the indicia set out in
Section 2 (11) is sufficient for supervisory status.9
The evidence reveals that Henry instructed, reprimanded, responsibly directed
the work of employees, organized and assigned work to personnel; gave employees
time off, shifted employees from one job to another, and acted as intermediary be-
tween the employees in his shop and the front oflice.io He had a desk, identical to
those of company officials, which was located in an area partitioned off from the
other employees. He effectively recommended the hiring and firing ii of employees
and was described by employees as being the "metal shop foreman," "supervisor in
the metal shop," and "in charge of the metal shop."
Perhaps the most significant indicium of Henry's supervisory status is the fact that
he received $2.80 an hour. Contrasted to this cogent fact are the hourly wages of
other employees, most of whom were paid between $1.50 and $1.70, with a few re-
ceiving $2 an hour.12
Moreover, Henry had the attributes of a representative of management and was
reasonably regarded as such by the employees.13 Accordingly, it is found that Henry
was a supervisor within the meaning of Section 2(11) of the Act.
Conclusions
The uncontradicted evidence demonstrates that by August 13, 1962, the Union had
signed up a majority of the employees, in the appropriate unit, at the Respondent
Company's plant. Thereupon, by virtue of the provisions of Section 9(a) of the
Act,14 the Union became the exclusive representative of all the employees in the bar-
gaining unit.15 Section 8(a)(5) provides that an employer who refuses to bargain
with the representative chosen by his employees is guilty of an unfair labor practice.
8 Section 2(11) provides:
The term "supervisor " means any individual having authority , in the interest of
the employer , to hire , transfer , suspend, lay off, recall , promote, discharge, assign, re-
ward , or discipline other employees , or responsibly to direct them, or to adjust their
grievances , or effectively to recommend such action , if in connection with the fore-
going the exercise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
Ohio Power Company v. N L R B., 176 F. 2d 385 , 387 (C.A. 6) ; N L.R.B v. Edward
G. Budd Manufacturing Co, 169 F. 2d 571, 576 (CA. 6).
10 On one occasion Henry told employee Scott that he was to take orders from no one
but him
11 When Howson was fired, he asked Ross , a company official, for another chance and
Ross told him he must abide by Henry's recommendation
12 Following held to be supervisors : Manhattan Coal Corporation , etc, 98 NLRB 1246,
1249, footnote 6, where "lead man" spent 75 percent of his time doing work similar to
that of other employees but received 35 cents an hour more ; United States Gypsum
Company , 124 NLRB 416 , 417, hourly paid employee received more compensation than
highest paid employee in his department ; Badenhausen Corporation , 113 NLRB 867, 871,
employee earned 25 percent to 30 percent more than other employees
13lnternational Association of Machinists v. N.L.R.B. ( Serrick Corp ), 311 U.S. 72,
7981; Red Arrow Freight Lines , Inc, 77 NLRB 859, 860, enfd . 180 F 2d 585 (CA. 5) ;
E. B Law and Son, 92 NLRB 826, enfd. 192 F. 2d 236 (C.A. 10) ; Samuel Flatau, d/b/a
Yale Filing Supply Co , 91 NLRB 1490; N .L R.B. v. Ed Friedrich , Inc., 116 F. 2d 888,
890-891 ('C A 5).
14 Section 9(a) provides:
Representatives designated or selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such purposes , shall be the ex-
'elusive representatives of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages , hours of employment , or other condi-
tions of employment. . . .
15 The Company admits that the bargaining unit involved in this case was appropriate.
ELLIOTT-WILLIA_11S CO.. INC. 8 1 7
It is well settled that an employer's duty to bargain is not contingent solely upon
an election and Board certification. The Act requires no specific form of authority
to bargain collectively. It is only necessary that the union's authorization be mani-
fested in some manner capable of proof.16 Thus, a union's representative status
may be established by designation cards, or applications for membership, or employee
petitions.17 The Act, however, does not condition an employer's obligation to bargain
upon an antecedent certification by the Board, where, as here, a union's majority
designation is clearly established otherwise, so that the employer acts at his peril
in refusing to recognize a duly selected bargaining agent.18 By Respondent's failure
to learn the facts as to the Union's majority and by engaging in unlawful conduct
designed to undermine the Union's support, Respondent elected to take "the chance
of what [the facts] might be." 19 When the Union offered to show Elliott the
authorization cards, he refused the tender.
Although it is settled that an employer's duty to bargain arises immediately upon
receipt of an unequivocal request such as the circumstances in this case reveal, the
president of the Respondent Company insisted upon the Union filing a representation
petition. Shortly after it had compelled the Union to file a representation petition,
the Company betrayed its fundamental opposition to the entire principle of collective
bargaining by resorting immediately to coercive activities. By interfering with the
rights of its employees immediately following the Union"s request for recognition,
Respondent itself provided a reliable index for measuring whether it had a good-faith
doubt of the Union's claim that it represented a majority of Respondent's employees.
While an employer may, of course, refuse to recognize a union when motivated
by a good-faith doubt concerning its majority status, it is settled, as stated in Joy Silk
Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 741 (C.A.D.C.), cert. denied 341 U.S. 914,
th at when-
... such refusal is due to a desire to gain time and to take action to dissipate the
union's majority, the refusal is no longer justifiable and constitutes a violation
of the duty to bargain set forth in section 8(a) (5) of the Act. [Citing cases.]
The Act provides for election proceedings in order to provide a mechanism
whereby an employer acting in good faith may secure a determination of
whether or not the union does in fact have a majority and is therefore the
appropriate agent with which to bargain. Another purpose is to insure that
the employees may freely register their individual choices concerning represen-
tation. Certainly it is not one of the purposes of the election provisions to
supply an employer with a procedural device by which he may secure the time
necessary to defeat efforts toward organization being made by a union.
Furthermore, any attempt to evaluate whether Elliott, the Respondent's president,
when he insisted upon a Board election, did so in good faith, requires that due con-
sideration be given to Respondent's conduct and activities detailed above'0 It is
clear that based upon Respondent's words and deeds, it revealed a determination to
deprive its employees of their basic organizational rights guaranteed by the Act.
Even more fundamentally, however, the very circumstance that Elliott, Respondent's
president, declined the Union's offer to show him the signed authorization cards of
his employees or that the Respondent made no inquiry of the Union as to the ap-
propriateness of the unit it requested, confirms that Respondent entertained no
concern on either score.21
Shortly after the Company was requested to recognize and bargain with the Union,
it immediately embarked on an antiunion campagn by unlawfully polling and inter-
rogating employees, threatening reprisals and the abolishment of certain benefits
and privileges previously enjoyed by the employees, as well as promising economic
benefits and also bargaining directly with individual employees. This unlawful con-
duct was intended to discourage union adherence, win employees' allegiance from
11 Lebanon Steel Foundry v. N.LR.B., 130 F. 2d 404, 407-408 (C.A.D.C.), cert. denied
317 U.S. 659.
17 See NLRB. v. Bradford Dyeing Association, 310 U.S. 318, 338-340; NLRB. v.
Louisville Refining Co., 102 F. 2d 678, 680 (CA. 6), cert. denied 308 U.S. 568; N.L.R.B.
v. Fiss Corporation, 136 F. 2d 990 (C.A. 3), enfg. 43 NLItB 125, 143, 144
1s N L.R.B. v. Piqua Munising Wood Products Co., 109 F 2d 552, 556, (C A. 6)
10 N.L.R B. v. Remington Rand, Inc., 94 F. 2d 802, 869 (C.A. 2), cert denied 304 U.S.
576 and 585.
=° See N.L.R.B. v. Marion G Denton, at al. d/b/a Marden 3ffg. Co, 217 F. 2d n67, 570
CA. 5), cert. denied 348 U S. 981.
21 It was stipulated that the cards which the Union had were authentic and were in fact
signed by employees of the Company.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, and thus dissipate the Union's majority. The pattern of conduct was all
part of a scheme to undermine the Union's representative status and to destroy its
standing by bypassing it in order to avoid its duty to bargain and thus indicating to
its employees that it was not necessary to belong to a union to obtain satisfactory
employment terms 22
Respondent, however, as shown above, almost immediately after the union officials
requested recognition, threatened, interrogated, and engaged in other proscribed
and coercive conduct. This conduct is inconsistent with Respondent's holding a
good-faith doubt as to the Union's majority representative status. Accordingly, it is
found that Respondent's insistence on a Board election was not made in good faith
but rather for the purpose of gaining time to undermine the Union's majority. The
Board and courts have agreed that in situations like this, where an employer resorts
to illegal activities, it can reasonably be inferred that the employer's initial refusal
to bargain was as ill-intentioned as his other actions.23 Moreover, it is equally clear
that when an employer has no bona fide reason for challenging the union's claim
that it is the majority representative of his employees, his duty to bargain may arise
in the absence of certification.24
Accordingly, it is found that the Respondent refused to bargain collectively on
August 13, 1962, and since, with the Union as the exclusive representative of its
employees in an appropriate unit and thereby deprived its employees not only of
the rights guaranteed by Section 7 of the Act, but also violated Section 8(a) (5) of
the Act.
The Alleged Violations of Section 8(a)(1)
The complaint alleges that since August 15, 1962, and on various dates thereafter,
Respondent interrogated, threatened, and polled its employees as well as 'bargained
with them directly, and promised them economic benefits.
It is found that Respondent violated Section 8(a)(1):
(1) When Ruby Elliott interrogated and threatened Roy Young on August 14,
1962.
(2) When James Elliott offered, on August 15, 1962, to bargain directly with his
employees.
(3) When the employees were polled on August 15 and September 6, 1962, as to
their preference between the Sheet Metal Workers' Union and an independent union.
(4) When Robert Henry, a supervisor, threatened employees by warning them
that if the Union were selected by them. they would lose their jobs as they did not
have the requisite experience, which the Union required, to be journeymen.
(5) When Robert Henry, a supervisor, offered to bargain directly with employees
by submitting for their consideration certain proposals regarding wages and working
conditions.
(6) When Robert Henry threatened employee Edward R. Adams that if the Union
were selected by the employees, they would lose their vacation pay and Christmas
bonus.
(7) When Supervisor Robert Henry instructed Scott to poll the employees and
to promise them that if they dropped the Union, they would receive wage increases
and other benefits.
(8) When James Elliott, Respondent's president, granted the employees a wage
increase of 10 cents an hour.
(9) When James Elliott offered the employees money to hire a lawyer in order
to drop the Union and establish an independent union.
(10) Ruby Elliott interrogating and threatening employee Westfall on October 13,
14, and 15. 1962.
It is found that the 10 incidents delineated above were intended to have the effect
of interfering with the rights guaranteed to employees by Section 7 of the Act and
thus constituted interference, restraint, and coercion in violation of Section 8 (a) (1)
of the Act.
All authorities cited by Respondent in his brief have been carefully considered and
it is not believed that holdings in those cases require a finding contrary to the conclu-
sions reached herein. Moreover, the Trial Examiner finds no occasion for lengthen-
ing this report by citing or distinguishing them, because it is believed that the con-
trolling reasons for this decision have been sufficiently discussed. Moreover, the Re-
spondent's contentions are based, in great part, on an interpretation of the facts in
this proceeding which are materially different from the Trial Examiner's and since
=See May Department Stores v. N.L.R.B ., 326 U.S. 376, 385.
-a .Joy Silk Mills, Inc. v. N.L R.B, 185 F. 2d 732 at 743 (C. -A-D.C.) ; N L R.B. v. Samuel
J Kobritz, d/b/a Star Beef Company, 193 F. 2d 8, 14 (C.A. 1).
24 lob, et at . v. Los Angeles Brewing Co., 183 F. 2d 398, 405 (C.A. 9).
ELLIOTT-WILLIAMS CO., INC. 819
the applicability of precedent necessarily depends on one's view of the facts, no pur-
pose would be served by discussing all the cases cited by Respondent's counsel.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (5) of the Act, it will be recommended that the Re-
spondent cease and desist therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that from August 13, 1962, and thereafter, Respondent has
refused to bargain collectively with the Union herein as the exclusive representative
of its employees in an appropriate unit, it will be recommended that the Respondent
bargain collectively with said Union, upon request, as the statutory representative of
the employees in that unit, and if an understanding is reached, embody such under-
standing in a signed agreement.
It having been found that the Respondent has engaged in certain acts of inter-
ference, restraint, and coercion, within the meaning of Section 8(a)(1), it will be
recommended that the Respondent cease therefrom.
It has been found that the Respondent has engaged in a variety of unlawful acts
which interfered with the free choice by its employees of their bargaining representa-
tive, and that such acts were resorted to for the deliberate purpose of enabling it to
evade its obligation to bargain collectively with such representative. Because of the
Respondent's unlawful conduct and its underlying purposes, the Trial Examiner is
persuaded that the unfair labor practices found are related to other unfair labor
practices proscribed by the Act, and that the danger of their commission in the future
is to be anticipated from the course of the Respondent's conduct in the past. The pre-
ventive purpose of the Act would be thwarted unless the remedial order is coex-
tensive with the threat. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thus to
effectuate the policies of the Act, it will be recommended that the Respondent cease
and desist from infringing in any manner upon the rights guaranteed by Section 7
of the Act 25
Upon the basis of the foregoing facts and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Sheet Metal Workers' International Association, Local 503, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees of the Employer at its Indianapolis,
Indiana, plant, including plant clerical employees and field assemblers and service
employees, but excluding all office clerical employees, draftsmen, professional em-
ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act.
3. At all times since August 13, 1962, the said Union has been and now is the
representative of a majority of the employees of the Respondent in the unit above
described, for the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
4. By refusing on or about August 13, 1962, and at all times thereafter, to bargain
collectively with the said Union as the exclusive representative of its 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.
5. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act
by the following:
(a) Threatening its employees if they engaged in union activities; (b) coercively
interrogating employees about their union activities; (c) granting wage increases and
other economic benefits for proscribed reasons; (d) threatening the elimination of
benefits and privileges including bonuses; (e) offering to bargain directly with its
employees; and (f) polling its employees as to their preference between the Union
herein and other labor organizations.
ffi N L R B. v. Empress Publishing Company, 312 U S. 426, 437; N L R B. v. Southern
Wood Preserving Company, 135 F. 2d 606, 607-608 (C.A. 5) ; N.L R B. v. Entwistle Mfg.
Co, 120 F. 2d 532, 536 (C.A. 4).
717-672-64-vo1. 143-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, it is recom-
mended that Elliott-Williams Co., Inc., and its officers, agents, successors, and as-
sign, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Sheet Metal Workers' International
Association, Local 503, AFL-CIO, as the exclusive representative of all its em-
ployees in the unit heretofore found appropriate with respect to rates of pay, wages,
hours of employment, or other conditions of employment.
(b) Interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, by the conduct enumerated above in
paragraph 5 of the section entitled "Conclusions of Law."
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities.
2 Take the following affirmative action which it is found will effectuate the
policies of the Act-
(a) Upon request, bargain collectively with Sheet Metal Workers' International
Association, Local 503, AFL-CIO, as the exclusive representative of the employees
in the above-described appropriate unit, and if an agreement is reached, embody
such understanding in a signed agreement.
(b) Post at its plant in Indianapolis, Indiana, copies of the attached notice marked,
"Appendix." 26 Copies of said notice, to be furnished by the Regional Director for
the Twenty-fifth Region, shall, after being duly signed by the Respondent Employer's
authorized representative, be posted by the Respondent Employer immediately upon
receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that the said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-fifth Region, in writing, within
20 day from the receipt of this Intermediate Report and Recommended Order,
what steps Respondent has taken to comply herewith.27
It is further recommended that unless on or before 20 days from the receipt of
this Intermediate Report and Recommended Order, Respondent notifies said Regional
Director, in writing, that it will comply with the above recommendations, the Na-
tional Labor Relations Board issue an order requiring it to take such action.
2e In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
27In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director , In writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with Sheet Metal Workers' Inter-
national Association, Local 503, AFL-CIO, as the exclusive representative of all
the employees in the appropriate bargaining unit described below with respect
to rates of pay, wages, hours of employment, or other conditions of employment,
and, if an understanding is reached, embody such understanding in a signed
agreement . The bargaining unit is:
SWEETLAKE LAND AND OIL COMPANY, INC. 821
All production and maintenance employees at our plant in Indianapolis,
Indiana, including plant clerical employees and field assemblers and service
employees , but excluding all office clerical employees , draftsmen , profes-
sional employees, guards , and supervisors as defined in the Act.
WE WILL NOT threaten our employees with reprisals or question them about
their union activities , poll our employees as to which union they prefer, or
bargain individually with them.
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 labor organiza-
tions, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing , and to en-
gage in any other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities.
ELLIOTT-WILLIAMS CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, 46204, Telephone No. Melrose
3-8921, if they have any question concerning this notice or compliance with its
provisions.
Sweetlake Land and Oil Company , Inc. and Rice Workers Local
300, Amalgamated Meat Cutters and Butcher Workmen of
N.A., AFL-CIO. Case No. 15-CA-.190. July p24, 1963
DECISION AND ORDER
On May 7, 1963, Trial Examiner James T. Barker issued his Inter-
mediate 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 attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Interme-
diate Report and a memorandum in support of its exception; the
General Counsel filed, a brief in support of the Intermediate Report.
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 [Chairman McCulloch and Members Leedom 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 Interme-
diate Report, the Respondent's exceptions and memorandum, the Gen-
eral Counsel's brief in support, and the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
143 NLRB No. 81.