Ellis and Watts Products, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1961

130 N.L.R.B. 1216 (N.L.R.B. 1961)

1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
91 NLRB 1121. See also dissenting opinion in Rockaway News, supra., In short,
the authorities hold that an employer's desire to operate its business cannot serve as
justification for infringing the rights which the Act guarantees to employees.
Redwing and Rockana are common carriers subject to the Interstate Commerce
Commission and to the Florida Railroad and Public Utilities Commission and it may
be argued that the duties imposed on these carriers required them (and through
them the drivers) to cross the picket lines involved. It is not clear whether such
duty is imposed. Assuming, however, that the carriers had an obligation to provide
services under the conditions then prevailing it would seem that then restrictions
similar to those imposed by no-strike clauses of contracts would be placed upon
employees and that in that event it would be appropriate to apply Section 502 and the
Knight Morley doctrine and thus effectuate the policy of Congress of not requiring
continuance of work under what the employees in good faith believe to be abnor-
mally dangerous conditions. If the duties imposed upon carvers by the afore-
mentioned commissions requires carriers to cross picket lines where violence pre-
vails and Section 502 does not apply, then an apparent conflict of requirements exists
and in balancing this conflict (and the conflict of interests and rights previously
noted) it appears appropriate to consider the intent of Congress as expressed in
Section 502 and, in view thereof, to resolve the conflicts against the carriers.
In summary, the Act gives employees, acting in concert and in the face of abnor-
mally dangerous conditions, a right to quit their labor without penalty (either in the
face of a no-strike clause or where there is no such clause) in order to protect their
health and their lives.
In view of the foregoing, the Trial Examiner finds and concludes that, except in
the situation involving Krzanowski, the activity of the drivers herein in refusing to
cross the picket lines at V-C was protected concerted activity and that their termi-
nations were therefore unlawful.
As previously indicated, the Trial Examiner concludes that the evidence adduced
does not establish that Krzanowski was terminated in violation of the Act.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements
for the assertion of jurisdiction herein.
2. The evidence adduced establishes that Respondent, by interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in Section
7 of the Act, engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
3. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
4. The evidence adduced does not establish that Respondent violated the Act by
terminating the services of William Krzanowski.
[Recommendations omitted from publication.]
Ellis and Watts Products , Inc. and International Union , Allied
Industrial Workers of America, AFL-CIO. Cases Nos. 9-CA-,
2041 and 9-CA-2069. March 6, 1961
DECISION AND ORDER
On June 23, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
130 NLRB No. 109.
ELLIS AND WATTS PRODUCTS, INC. 1217
spondent filed exceptions to the Intermediate Report together with a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
these cases to a three-member panel [Chairman Leedom and Members
Jenkins and Kimball].
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. Inter-
mediate Report, the exceptions and brief, and the entire record in the
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modi-
fications.
1. We find, in agreement with the Trial Examiner, that Respondent
violated Section 8(a) (1) of the Act by threatening with loss of em-
ployment four employee representatives during his meeting with them
on December 15, 1959. Whether or not, as the Trial Examiner found
in his report, the company president, Ellis, "berated" these employees
and "sharply took them to task," it is nonetheless true that in the
context of an interrogation concerning union organizational activities
his statement to them that "you just voted yourselves out of a job"
constituted interference, restraint, and coercion violative of the Act.
The Employer in its brief, however, contends that Ellis "could have
meant" that these four officers of the independent union had voted
themselves out of their positions with that organization. This inter-
pretation was not ventured at the hearing, however, and appears to
be an ingenious explanation devised in retrospect. If such an innocent
remark were intended, it seems unlikely that Ellis would so hurriedly
retract it. The only plausible explanation is that Ellis inadvertently
let his true intentions escape and then belatedly sought to exculpate
himself from their legal implications. He did not thereafter deny his
retaliatory intentions or attempt to clarify his statement although he
had the time and the opportunity to do so. Whether or not he orig-
inally intended to coerce the four union representatives by the state-
ment, this was the foreseeable consequence of. his failure to deny or
ameliorate it.
2. We find, in accordance with the Trial Examiner, that the Re-
spondent violated Section 8 (a) (3) and (1) by the December 18, 1959,
layoff which was calculated to discourage membership in and activity
on behalf of the International Union which only 3 days previously
had demanded recognition from the Respondent. The record as a
whole provides an abundance of evidence showing that the layoff was
not required, as Respondent contends, by economic exigencies, and
that financial difficulties which it had suffered for some time were:
597254-61-vol. 130-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used as a pretext for a discriminatory layoff designed to discourage
union activity. Testimony at the hearing establishes that there was
at least 3 months' work remaining at the time of the layoff, and the
employees themselves uniformly testified that there had been no
noticeable decline in actual production work. If we were to accept
Respondent's questionable argument that production schedules pro-
jected for only a 3-month period proves that there is no work for eni-
ployees beyond that point, it nevertheless remains to be explained why
the Company found it necessary to initiate a mass layoff 3 months
before the work actually ran out. The Respondent claims that this
was necessary due to a serious cash deficiency which had materialized.
The record shows that there was in fact a momentary overdraft of
$5,764 on December 14, but this was restored by loan deposits and
accounts receivable the next day to a balance of nearly $34,000 and this
balance according to official bank records never dropped below $17,000
during the remainder of December. The record establishes, moreover,
that Respondent's weekly payroll was approximately $3;500. Thus,
we cannot accord any weight to Respondent's Exhibit No. 20, pur-
porting to show a perilous cash position during December.
In 1959, the Company experienced sharply reduced profit and was
in a tight competitive position. Respondent's own exhibits, however,
indicate that it gave no outward indication of a drastic curtailment
of operations prior to the December 18 layoff. In fact, board of di-
rectors' minutes show that the budget for 1960 was to be substantially
larger than the budget for the current year. A financial report pre-
pared by Mrs. Day, the company accountant, in October 1959, states
that sales are steadily increasing and that production is approaching.
capacity. It also mentions that the Company had obtained a $4,000,-
000 contract to be spread over the next 3 years, although it does not say
when production is scheduled.
As to the overdraft on December 14, testimony by Mrs. Day shows
that she presented two notes to Mr. Ellis on that day for his signature
in the amount of approximately $26,000 and that she promptly took
them to the bank where the loan was granted the following day. In
the face of this testimony, Mr. Ellis nevertheless stated that no layoff
would have occurred had money come in. It is inconceivable that Ellis
did not expect money to meet current obligations when he had just
signed notes for loans which were promptly forthcoming. Official
bank records show that the average balance for December was approx-
imately the same as for the year as a whole, and that there had been
occasional overdrafts intermittently during the preceding months
without the Company resorting to a general layoff.
The handling of the layoff by the Respondent, looked at in totality,
shows that its intention was to stun its employees and discourage them
from affiliating with an outside union. Furthermore, events imme-
ELLIS AND WATTS PRODUCTS, INC. 1219
diately following the layoff belie a defense of economic necessity, since
the Respondent almost immediately recalled 8 employees, increased
overtime, and hired 10 new inexperienced employees who took over
work which had been done by the laid-off workers.
. The Respondent, however, points out that its board of directors'
minutes for December 7 and 14, respectively, expressly provide for a
layoff of "nonessential" employees to occur, without prior notice to
the workers, on December 18. It argues accordingly that this proves
that a bona fide economic layoff had been planned 1 day prior to
receiving notice of union activity on December 15, and that its motive
could not, therefore, have been to disrupt that activity. For reasons
set forth in the Intermediate Report, the Trial Examiner discounted
as not authentic the December 14 minutes. We feel it unnecessary to
consider the authenticity of these minutes, and do not rely upon the
findings of the Trial Examiner as to them,' since it is apparent that
whether planned or spontaneous, the cutback in personnel was inten-
tionally extended beyond economic needs 3 days after the Company
received the Union's bargaining demands. Frey, the plant superin-
tendent, was instructed by Respondent's board of directors on De-
cember 7 to prepare a list of nonessential employees for layoff, and on
December 14, the directors allegedly selected December. 18 as the layoff
date. However, the record establishes that Frey had not drafted this
list by December 15 and did not hand in a completed list until De-
cember 17, 2 days after the Company was informed that the Union
had organized its employees. Finally, it is a conspicuous fact that
none of the minutes specifies which or how many employees were to
be laid off as "nonessential," nor did the Respondent plan any simul-
taneous layoff among the nonproduction employees to compensate
for the alleged drastic reduction in available work.
We believe that the Employer, albeit planning a small reduction in
personnel, determined after receiving the Union's demand for recogni-
tion to extend the layoff to the vast majority of its production workers
in order to discourage union activity. That this is the case is evident
from the fact that 27 of 43 production employees were laid off 3 days
after the Company received the Union's request, without prior notice
or subsequent explanation to the employees or consultation with either
of the labor organizations involved, and that some of the employees
were then promptly recalled and 10 new employees hired because of
production needs. It is incredible that a company operating at full
capacity with work for at least 3 months, and having an average bank
balance sufficient for its current payroll, would consider the bulk of:
' The Trial Examiner in discussing the authenticity of the December 14 minutes
apparently confused the December 7 minutes ( which instructed Frey to prepare a list 'for
layoff) with those of December 14 (which instructed him to review the prepared list).
As our decision does not reach the question of the 'authenticity of these minutes, this
error is not prejudicial.
1220 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
its production workers to be "nonessential" when in fact it found it.
necessary to immediately recall some of them and hire 10 new em-
ployees. The only reasonable inference is that the layoff was prompted.
by unlawful discriminatory motives.
The Trial Examiner correctly points out that the new inexpreienced'
employees who were hired allegedly as "field service trainees" were
not given that title or told that they were hired as such and took over-
work previously done by the laid-off employees. While the Board.
clearly may not rest its findings upon mere conjecture or suspicion, it.
may, however, consider all the circumstances of a particular case and
weigh the employer's statements, the character and extent of the layoff,
and the sequence of events in evaluating the employer's good faith or
bad faith.' As the Board has previously observed :
... the layoff of so large a portion of the staff not only was
likely to include at least some of the union adherents but, occurring
as it did immediately upon the Respondent's receipt of the Un-
ion's bargaining demand, it could not have failed to shake the
confidence of the employees in the Union as their bargaining
agent. The normal, foreseeable consequence of the layoffs because:
of their timing was obviously to instill in the employees a doubt,
as to the wisdom of selecting the Union as their bargaining agent,
and even a fear of the consequences if they should do so in the
Board election which the Respondent apparently intended to insist
upon.'
The Respondent argues that it had no knowledge of the individual
employee's union activity and since it made its selection for layoff
on the basis of seniority, it cannot be said that it discriminated against
the employees unlawfully. However, the fact that the Respondent
made its selection on the basis of seniority does not detract from the
essentially discriminatory nature of the layoffs. The Respondent knew
that among the group selected for layoff there was likely to be at least
95 percent of employees who supported the Union and had authorized
it to bargain on their behalf. The layoff was made to discourage union
activity and in such circumstances the layoff of the entire group must
be regarded as discriminatory and in violation of Section 8(a) (3) 4
Moreover, whether or not the Respondent had knowledge of the indi-
vidual employee's union activity, it is clear that the layoff was cal-
culated to or tended to interfere with, restrain, and coerce employees
in the exercise of their right to engage in union or concerted activity.
Thus, whether or not the layoff was discriminatory, it was clearly an
infringement of employees' rights guaranteed in Section 7 of the Act.
'Emma Gilbert, et al. d/b/a A. L. Gilbert Company, 110 NLRB 2067.
3Piezo Manufacturing Corp., 125 NLRB 686.
' Wagner Iron Works, a corporation, 104 NLRB 445, 448, and Liberty Coach Company,.
Inc., 128 NLRB 160.
ELLIS AND WATTS PRODUCTS, INC. 1221
-and thus in violation of Section 8(a) (1). The appropriate remedy
in either case wherein a layoff constitutes the unfair labor practice
includes reinstatement of the employees who were the victims of the
layoff and their reimbursement for loss of earnings.
3. We agree with the Trial Examiner that Respondent violated Sec-
tion 8 (a) (5) of the Act by refusing to bargain with the Union as the
exclusive representative of its employees. We find that the Employer,
having knowledge that the Union represented the vast majority of its
employees,5 refused to recognize or bargain with that labor organiza-
tion and engaged in unfair labor practices designed to thwart and
undermine the Union.
The Respondent contends that it was entitled to rely on its good-
faith doubt that the Union represented a majority of its employees,
and to have this question resolved by an election held by this Board.
While this is, of course, the general rule, the Board has repeatedly
held that following a demand for recognition, if an employer engages
in unfair labor practices designed to choke off the employees' resolve
and thwart and undermine the union, it can have no genuine doubt
as to the majority status of the union, and its refusal to recognize
the union cannot be justified .6 In the instant case, Respondent's
president had been told by employee representatives on December 15
that approximately 95 percent of the employees had signed union
cards, a fact to which he expressed no doubt. Furthermore, on De-
-cember 17 when Respondent's counsel wrote to the Union that it was
uncertain about the Union's status as bargaining representative, Re-
spondent's president, Ellis, had already solicited from the officers of
the independent union a signed statement acknowledging its dissolu-
tion and could thus have no doubt as to which of the unions was the
legitimate representative of the employees. Nor can the Employer's
refusal to bargain with the Union be excused on the theory that it
was merely awaiting action on the representation petition which the
Union had filed with this Board,' since Employer's counsel confessed
in his letter of December 23 to the Union that he had hitherto been
unaware of the filing of the petition.
The Trial Examiner found, and we agree, that on December 15,
1959, the Union represented a majority of the employees in an appro-
priate unit, that it had so informed the Respondent, and that the Re-
spondent never had any genuine doubt as to the majority status of
the Union. We further find that the statement of Ellis and its imple-
5 Ellis was informed by the union representatives at the December 15 meeting that
approximately 95 percent of the employees had signed union cards . He did not express
any doubt as to the figure. Actually 35 of the 43 employees had signed, or approximately
81 percent. Of the 27 workers laid off on December 18 , 24, or 89 percent of those laid
off, had signed union cards . It is probable that the Employer did not know which of the
employees had signed, but was nevertheless aware that the great majority of them had.
° Joy Silk Mills Inc. v. N.L.R.B ., 185 F. 2d 732 , 741 (C.A.D.C .), cert. denied 341 U.S.
914, and Heat Timer Corporation , 124 NLRB 1256.
7Dan River Mills , Incorporated, Alabama Division, 274 F. 2d 381 (C.A. 5).
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mentation in the layoff of 27 employees 3 days later, were designed
and intended to stifle the union movement in its incipiency. Having
so found, we shall direct remedial action as recommended by the Trial
Examiner on behalf of all employees affected by Respondent's dis-
criminatory layoff.8
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 Re-
lations Board hereby orders that the Respondent, Ellis and Watts
Products, Inc., Rossmoyne, Ohio, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, Allied In-
dustrial Workers of America, AFL-CIO, or in any other labor organi-
zation of its employees, by discharging, laying off, refusing to rein-
state, or in any other manner discriminating against them in regard
to their hire or tenure of employment, or any term or condition of em-
ployment, except as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
(b) Threatening employees with discharge for joining the above-
named Union or engaging in union activities, or interrogating them
as to their union affiliations and sympathies in a manner violative of
Secton 8 (a) (1) of the Act.
(c) Refusing to recognize and bargain collectively with Inter-
national Union, Allied Industrial Workers of America, AFL-CIO, as
the exclusive representative of the Respondent's production and main-
tenance employees at its Rossmoyne, Ohio, plant, excluding office cleri-
cal employees and all guards, professional employees, and supervisors
as defined in the Act.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
8In accordance with customary Board policy in such cases , we shall grant the recom-
mended relief to all employees affected by the discriminatory layoff without regard to
membership in the particular labor organization . See Liberty Coach Company, Inc.,
128 NLRB 160, and cases cited therein.
ELLIS AND WATTS PRODUCTS, INC. 1223
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer all employees listed in Appendix A, attached hereto, who
have not heretofore been recalled, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make all of the
employees on said list whole for any loss they may have suffered by
reason of the Respondent's discrimination against them in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the right to reinstatement and the
amounts of backpay due under the terms of this Order.
(c) Upon request, bargain collectively with International Union,
Allied Industrial Workers of America, AFL-CIO, as the exclusive
representative of the Respondent's employees in the aforesaid appro-
priate unit with respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(d) Post at its plant in Rossmoyne, Ohio, copies of the notice at-
tached hereto marked' "Appendix B." I Copies of said notice, to be
furnished by the, Regional Director for the Ninth Region, shall, after
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
9In 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."
APPENDIX A
Donald F. Barnes
Richard R. Craig
Robert E. Dunigan
Clyde O. Harmon
William Hetman
James E. Kelly
Billy W. Mason
Leroy H. Meyer
Howard J. Schwalbach, II
Harold D. Chamberlain
Paul J. Cunningham
Raywood Ellis
Herman Harrison
Wade M. Hughes
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas R. Klus
Emil A. Meyer
Robert P. Mobley
K. W. Smith
Joseph E. Cordes
R. E. Deubell, Jr.
Robert J. Green
P. J. Heitfeld
A. J. Hyden
P. Lutarewytsch
R. W. Miller
R. H. Reimer
Edward Stumpf
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in International Union,
Allied Industrial Workers of America, AFL-CIO, or in any other
labor organization, by discharging, laying off, refusing to rein-
state, or in any other manner discriminating against any em-
ployee in regard to his hire, tenure of employment, or any term
or condition of employment, except as authorized in Section
8(a) (3), of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT threaten employees with discharge for joining the
above-named Union or engaging in union activities or interrogate
them as to their union affiliation or sympathies in a manner vio-
lative of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form, join, or assist the above-named or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain 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 author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with the above-
named labor organization as the exclusive bargaining representa-
tive of all employees in the following unit with respect to rates of
pay, wages, hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, embody such un-
derstanding in a signed agreement. The bargaining unit is :
All production and maintenance employees at our Ross-
moyne, Ohio, plant, excluding office clerical employees and
ELLIS AND WATTS PRODUCTS, INC. 1225
all guards, professional employees, and supervisors as defined
in the Act.
WE WILL offer all employees named on the attached list marked
Appendix A, who have not heretofore been recalled, immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, discharging, if necessary, any replacements or
new employees, and make all employees on said list whole for any
loss of earnings they may have suffered by reason of the discrimi-
nation against them.
ELLIS AND WATTS PRODUCTS, 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served in each of the above -numbered cases;
an order consolidating the cases , complaints , and a notice of hearing thereon having
been issued and served by the General Counsel of the National Labor Relations
Board ; and an answer having been filed by the above-named Respondent , a hearing
involving allegations of unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended, was held in Cincinnati,
Ohio, on May 2, 3, and 4, 1960, before the duly designated Trial Examiner.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues. Oral argument at the conclusion of the
hearing was waived. Briefs have been received from General Counsel and the
Respondent.
Disposition of the Respondent 's motion , upon which ruling was reserved at the
close of the hearing, for dismissal of certain portions of the complaint , is made by
the following findings, conclusions , and recommendations.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ellis and Watts Products, Inc., is an Ohio corporation, with office, plant, and
principal place of business in Rossmoyne , Ohio, where it is engaged in the manu-
facture of air-conditioning equipment.
During the 12 months before the issuance of the complaint the Respondent had
a direct outflow in interstate commerce of air-conditioning equipment valued at
more than $100,000, and during the same period a direct inflow in interstate com-
merce of goods and materials valued at more than $100,000.
The Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union , Allied Industrial Workers of America , AFL-CIO , is a labor
organization admitting to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
Most of the conduct claimed by the complaint to be violative of the Act occurred
within a few days after Walter E . Ellis, president of the Respondent, on Decem-
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 15 , 1959 , summoned a number of his employees into the office and, as described
more fully below , sharply took them to task for selecting as their bargaining agent
the Charging Union instead of retaining as such agent an independent inside union
which he made clear he preferred to continue dealing with . Ellis' statements on this
occasion are in issue as interference, restraint , and coercion of employees in the
exercise of their right to select their own bargaining agent.
The immediate occasion for Ellis' convening this group of employees, it appears,
was his receipt of a written majority-representation claim by the Charging Union,
dated December 12, and its request to negotiate a contract. There is no dispute
as to the fact that at all times since the Union's request for recognition the Re-
spondent has declined. Thus arises the issue of a refusal to bargain.
Three days after Ellis, on December 15, had succinctly told employees called
into his office that by shifting their allegiance to the Charging Union they had
"voted themselves" out of their jobs, a majority of the Respondent's working force
was suddenly and without previous warning laid off. General Counsel claims and
the Respondent denies that this action was discriminatory and for the purpose of
discouraging membership in and activity on behalf of the Charging Union.
The record contains , as background evidence , undisputed testimony to the effect
that some 2 years earlier, in 1957, when employees began a similar move to avail
themselves of the bargaining services of the same labor organization , Ellis prevailed
upon them to abandon it, by claiming that the Charging Union had a "Red"
background , and threatening economic reprisals by statements that Government
contracts would not be available if they were represented by it , while insisting that
they would be "better off" by keeping their inside organization.
Interference , restraint , and coercion in December 1959 , the motive for the sudden
layoff the same month , and the refusal to bargain are the three chief issues involved
here.
B. Events leading up to the layoffs of December 18
Early in November employees at the Respondent 's plant apparently became
dissatisfied with the independent 's progress in obtaining a new agreement, and its
members authorized their officers , Donald Barnes , Harold Chamberlain , William
Hetman , and Paul Cunningham , to take steps toward affiliation with the Charging
Union. This committee met with a union representative, D'Ambrosio, obtained
authorization cards, and at a meeting of the employees on December 8, 31 employees
signed. By December 11, a total of 35 authorization cards had been signed. They
were turned over to D 'Ambrosio the next day, and he promptly sent his written
demand for recognition to the Respondent.
Upon receiving this letter the morning of December 15, Ellis called the four
former Independent officers, named above, into his office, read them the letter, and
asked if its contents were true. They admitted the fact. He asked them why
they picked a "Red" union and asked how great a majority had signed. He was
told about 95 percent. Ellis then declared, "Well, if that's the way you want it,
you just voted yourselves out of a job." Apparently but belatedly aware of the
illegality of this threat he promptly declared , 'I shouldn't say that, I will take it
back."
On December 17, counsel for the Respondent replied to the Union's demand for
recognition , in substance stating that , although advised by officers of the Independent
that this organization had been dissolved on December 12, "the company is uncertain
as to the representative a majority of the employees have designated," but that he
would be "happy" to discuss this point.
C. The layoffs of December 18
At the end of the shift on, December 18 and without previous notice each of the
27 employees listed on Appendix A was handed by his supervisor his paycheck
accompanied by two documents, the text being quoted below:
As you all know the Company, for economic reasons, had been forced to
reduce the. work week to thirty-five (35) hours. It was believed with this
reduction the company could maintain the present work force at least until
after the holidays when it was expected that conditions would improve. Now
it becomes apparent that it is no longer possible to maintain the present work
force without subjecting the Company to unusual finincial [sic] hardship.
The Board of Directors after long and careful consideration finds that it
has no alternative but to reduce the work force by laying off the employees
listed below until further notice.
ELLIS AND WATTS PRODUCTS, INC . 1227
This action was taken with a great deal of reluctance and we regret that
it must be made at this time of the year.
The Company appreciates the past services and extends to you every good
-wish for the future.
This layoff will not affect the 1958 incentive which will be paid as soon as
the company is able. Please notify us if you will have a change of address.
W-2 forms (Federal income tax) will be mailed on or before January 13,
1960.
Your hospital and surgical Care is paid through December 31, 1959.
When employees, understandably not pleased by this Christmas present, asked
the supervisors why they were being let go, they were referred either to the docu-
ments or to the superintendent. One employee, at least, upon querying Superin-
tendent Frey, was rebuffed by having this official read aloud to him the above-
quoted notice and refusing to say more. When another employee asked Assistant
:Superintendent Taylor for information, the latter said that until 10 minutes before
distribution of the notices he had known nothing about the layoffs.
The 27 employees thus laid off constituted the great majority of the total hourly
-paid production and maintenance employees. Uncontroverted evidence shows that
'the Charging Union, at the time of the layoffs, represented 35 of the 43 (at most)
employees in a unit conceded by the Respondent to be appropriate, and 24 of the 27
-employees laid off.
It is also undisputed that, concerning and before this layoff, management did not
-consult with, or inform, either the Independent, with which it had been dealing up
to December 15, or the Charging Union, which on that date it well knew was
-claiming to be the bargaining representative-except by way of Ellis' candid remark
to employees he had called in on December 15 that they had just voted themselves
,out of their jobs.
D. The refusal to recognize the Charging Union
As to this issue there is no dispute concerning two essential factors, established
by credible evidence: (1) the Charging Union duly made its claim of majority and
demand for recognition, and (2) up to the time of the hearing the Respondent has
refused to grant recognition or meet for negotiations. And documentary evidence
proves beyond question that the Union represented a clear majority of the employees
in a unit, conceded by the Respondent to be appropriate, who were on the payroll
just before the mass layoff of December 18. As noted heretofore, of some 43 em-
ployees in the unit 35 had authorized the Union to represent them.
The unit claimed by the Union, alleged by General Counsel, and conceded by
the Respondent to be appropriate for the purposes of collective bargaining is
composed of:
All production and maintenance employees, excluding all office clerical em-
ployees, guards, professional employees, and supervisors as defined in the Act.
E. Conclusions
As to Ellis' calling the group of four employees into his office on December 15,
the Trial Examiner does not believe that circumstances described by the employees
themselves warrant a finding of illegal interference on Ellis' part in inquiring whether
or not the claim in the Union's letter was true. Ellis, however, far exceeded per-
missive curiosity when he berated them for shifting allegiance, interrogated them
as to why they did so, and bluntly told them they had voted themselves out of their
jobs. His withdrawal of the remark with the comment that he should not have
uttered it in no way neutralized its reasonably coercive effect-it merely acknowl-
edged his own recognition of the fact that he had, by making it, violated the law.
He did not deny his retaliatory intention and it was promptly carried out. The
Trial Examiner therefore concludes and finds that by Ellis' remarks on that oc-
casion-except as to his interrogation as to the truth of the Union's claim-con-
stituted interference, restraint, and coercion violative of the Act.
As to the layoffs of the 27 employees listed on Appendix A, the following facts
amply support General Counsel's contention that the action was designed to dis-
courage union membership and defeat the Union's claim as to majority
representation:
1. The action made effective on December 18 Ellis' flat announcement of De-
cember 15 that the employees had "voted themselves out of their jobs."
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The failure of management to notify any employee , or the Union claiming to
represent all the employees , of an impending layoff.
3. The failure of management representatives to answer questions of employees
when they were paid off.
4. The undisputed testimony of Union Representative D'Ambrosio that on Janu-
ary 6 , 1960, counsel for the Respondent told him that if he insisted upon the right
of the 27 employees to vote at any Board election "we won't call any of them back."
The Trial Examiner is unable to find merit in the Respondent's claim that the
layoff of December 18 was for the reasons advanced in its amended answer: (1) Low
cash position; (2) production schedule dated December 9, 1959, showed the com-
pany had no production after the week of April 4, 1960, making reduction of work
force necessary in order to keep key employees; and (3) Respondent says it had no
knowledge of their sympathy for and activities on behalf of the Union.
Disposing of the three points in inverted order: As to ( 1) evidence discussed
heretofore refutes the claim that at the time of the layoff the Respondent "had no
knowledge" of union activity. Counsel for the Respondent conceded the receipt
of the Union's claim on December 15, and on the same day Ellis was told that 95
percent of the employees had joined.
As to (2), this point seems hardly deserving of comment . Rudimentary knowl-
edge of a manufacturing business must recognize the vacuity of a claim that pro-
duction must stop-or its working force be laid off-because early in December
there appears to be no work scheduled beyond a point several months in the
future! Its actual absurdity was demonstrated by the prompt recall of some of those
laid off, and the hiring of a least 10 new employees.
As to (3), bank records placed in evidence by General Counsel and competently
analyzed by him in his brief show both that while there may have been a low bank
balance for perhaps part of a day, shortly before December 18, it was promptly
rectified by an amount sufficient to care for the payroll for several weeks. The
same records indicate, moreover, that several times from May to December 1959,
the Respondent's accounts were overdrawn temporarily, but there is no evidence
that ever before had it resorted to a general layoff for any such reason. It appears
needless to point out the many contradictions in the testimony of the Respondent's
witnesses regarding its financial position.
At the hearing the Respondent produced a document purporting to be minutes
of a directors' meeting on December 14, 1959, which states that on that date a reso-
lution was passed to lay off all nonessential employees on December 18. The Trial
Examiner has grave doubts as to its authenticity. It is undisputed that the assistant
superintendent told an employee he knew nothing about a layoff until 10 minutes
before it occurred. The same document states that Superintendent Frey was to be
instructed to list employees to be retained. Yet Frey, as a witness, stated that he
had started on this list on December 10. Furthermore , President Ellis, as a witness,
admitted that he had not seen this document until January or February 1960. It is
noteworthy, also, that while other minutes of directors' meetings placed in evidence
bear the signature of Ellis the minutes purporting to be of the December 14 meeting
bear only the signature of counsel for the Respondent, as secretary. Finally, any
substance to the claim that actual decision to lay off the employees on December 18
had been made on December 14 is negated by Ellis' admission that "if money came
in" there would have been no layoff at this time. And bank records ,prove beyond
doubt that money enough for several weeks ' payroll was deposited on Decem-
ber 15-3 days before the layoff.
The Trial Examiner can place no reliance upon the purported minutes.
That reliance upon other self-serving documents prepared by the Respondent may
not be placed without scrutiny is shown by the clear distortion of fact contained in
the announcement of the layoff handed to employees on December 18. The claim
that a reduction to a workweek of 35 hours had been for "economic reasons" is not
only refuted by credible testimony of employees but by the admission of Ellis and
documents placed in evidence by the Respondent itself. It appears that for a short
period and beginning in early November production employees did work an hour
less each day-but only in order that supervisors might use the extra hour to check
over work to ascertain where lay the fault for poor work being claimed by certain
customers. And Ellis, as a witness, admitted that the temporary reduction lasted
only about 3 weeks. The period of such reduction ended at least that many weeks
before December 18. The plain implication in the prepared announcement of lay-
offs that the reduction in hours had been invoked in order to spread the work was
an obvious misrepresentation of fact.
. In short, the Trial Examiner finds no merit in the Respondent's claims as to
the layoffs. They were but pretexts and afterthoughts. The undisputed threat of
ELLIS AND WATTS PRODUCTS, INC. 1229
Ellis just before and of counsel for the Respondent shortly after the action estab-
lishes, and it is concluded and found, that the real reason for the layoffs was to
defeat the employees' legal right to bargain through a labor organization of their
own choice.
As to the Respondent's claim that it was justified in declining to bargain with
the Union until it had been certified by the Board, its own unlawful acts of inter-
ference and discrimination deprived it of any right it might otherwise have relied
upon in withholding recognition until certification. By December 15, Ellis had been
formally notified of the dissolution of the Independent and of the majority repre-
sentation status of the Charging Union. The Union repeatedly offered the Re-
spondent's counsel an opportunity to check the accuracy of the claim. There was
no dispute as to an appropriate unit. There is merit in General Counsel's con-
tention in his brief:
The Board has on many occasions passed on the bad faith conduct of an
employer. It has held that following a,demand for recognition, if an employer
engages in a course of action violative of Section 8(a)(1) and (3) of the Act
designed to choke off the employees' resolve and to thwart and undermine
the union, it can have no genuine doubt as to the majority status of the union
and its subsequent refusal to recognize the union cannot be justified.,
The Trial Examiner concludes and finds that the Respondent, from on or about
December 15, 1959, has refused to bargain with the Charging Union as the exclusive
representative of all employees in an appropriate unit.
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 I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent, upon request, bargain. collectively
with International Union, Allied Industrial Workers of America, AFL-CIO, as the
exclusive bargaining representative of all employees in the appropriate unit de-
scribed herein • and, in the event an understanding is reached, embody such under-
standing in a signed agreement.
It has been found that all employees listed in Appendix A were discriminatorily
laid off on December 18, 1959. During the hearing it was stipulated that some
of these employees had been recalled, and others may have been recalled since the
hearing. It will therefore be recommended that immediate and full reinstatement
to their former or substantially equivalent positions, without loss of seniority or
other rights and privileges, be offered to all employees listed on Appendix A who
have not been returned to work. It will be further recommended that the Re-
spondent make whole all employees listed on Appendix A for any loss of pay suf-
fered by reason of the discrimination against them, by payment to each of them
of a sum of money equal to that which he would normally have earned as wages,
absent the discrimination, from December 18, 1959, to the date of the Respondent's
offer of full reinstatement, less their net earnings during said period and in a man-
ner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB
289, and Crossett Lumber Company, 8 NLRB 440. It will also be recommended
that the Respondent, upon request, make available to the Board and its agents all
payroll and other records pertinent to the analysis of the amounts of backpay due,
and the right of reinstatement.
Since the violations of the Act which the Respondent committed are related to
other unfair labor practices proscribed by the Act, it will be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaran-
teed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
I Joy Silk Mills, Inc . V. N.L.R.B., 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914 ;
Heat Timer Corporation, 124 NLRB 1256.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
CONCLUSIONS OF LAW
1. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the em-
ployees listed in Appendix A, thereby discouraging membership in and activity on
behalf of the above-named labor organization , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
3. All production and maintenance employees at the Respondent 's plant, ex-
cluding all office clerical employees, guards, professional employees, and super-
visors as defined in the Act, constitute a unit appropriate for the purposes of col -
lective bargaining within the meaning of Section 9 (b) of the Act.
4. On December 12, 1959, and at all times since that date, the above-named
labor organization has been and now is the exclusive bargaining representative of
all employees in the above -described unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment , and other terms and'
conditions of employment by virtue of Section 9(a) of the Act.
5. By refusing , on December 15, 1959, and at all times thereafter , to bargaini
collectively with the aforesaid labor organization , 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 interfering with, restraining, and coercing employees in the exercise of 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) (1) of the Act.
7. 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.]
Boston Gas Company and Utility Workers Union of America,,
AFL-CIO, Petitioner. Case No. 1-RC-5691. March 6, 1961
SUPPLEMENTAL'DECISION MODIFYING DECISION AND'
DIRECTION OF ELECTION
On October 12, 1960, the Board issued a Decision and Direction of
Election in the instant proceeding,' finding therein that a subsisting-
contract was not a bar, and citing as authority Keystone Coat, Apron.
& Towel Supply Company, et al., 121 NLRB 880, and Felter v. South--
ern Pacific Co., 359 U.S. 326.
On October 25,1960, the Industrial Union Department of the AFL--
CIO, on behalf of the Utility Workers Union of America, AFL-CIO,.
the Petitioner herein, and 62 other national and international affiliated
unions , filed a motion for reconsideration and reargument urging the-
Board to reverse its finding that the contract's checkoff provision is
illegal under the above-cited cases. By letter dated November 2,1960,,,
the Employer advised that it had no objetcion to the motion for re-
consideration . Thereafter, other labor organizations and representa-
tives of management , by letter and telegraphic requests , urged the-
Board to reconsider its decision. On November 4,1960, in the absence
3129 NLRB 369.
130 NLRB No. 126.