Fleming & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1271 (N.L.R.B. 1964)

FLEMING & ' SONS OF COLORADO , INC., ETC. 1271
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighteenth Region, in writing, within
20 days from the receipt of this Decision and Recommended Order, what steps it
has taken to comply herewith.23
zt In 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 carry out the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT discharge, force the termination of, make discriminatory assign-
ments to, or otherwise discriminate against employees for belonging to or assist-
ing or supporting International Molders and Allied Workers Union, AFL-CIO,
or any other labor organization.
WE WILL NOT discriminate against or punish employees for giving. testimony
under the National Labor Relations Act, or for cooperating or meeting with
Government officials in anticipation of giving information or testifying in pro-
ceedings under the National Labor Relations Act.
WE WILL NOT question any employees about their or other employees' affilia-
tion with or support of any union or about meetings or sessions with Govern-
ment officials in connection with proceedings under the National Labor Relations
Act.
WE WILL respect your guaranteed rights under the National Labor Relations
Act to join or assist any union of your choice or bargain collectively through it
and will not interfere with, restrain, or coerce you in your freedom of choice to
engage or not engage in such activity.
WE WILL offer Robert E. Feltz immediate and full reinstatement to his former
or substantially equivalent position, without loss of seniority or other rights and
privileges, and WE WILL make him whole for any pay he lost because of the
discrimination against him, with interest.
All our employees are free to join or not to join, or to support or not support,
International Molders and Allied Workers Union, AFL-CIO, or any other labor
organization, without fear of discrimination, discriminatory assignments, or other
punishments, direct or indirect, for doing so.
RITCHIE MANUFACTURING COMPANY,
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.
Any employees having a question concerning the above notice or what it requires
may inquire by mail, telephone, or in person at the Board's Regional Office, 316
Federal Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No.
339-0112, Extension 2601.
Fleming & Sons of Colorado, Inc., a Division of Fleming & Sons,
Inc. and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 452. Case
No. 27-CA-1397. June 30, 1964
DECISION AND ORDER
On March 4, 1964, Trial Examiner Henry S. Salim issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
14, NLRB No. 137.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Decision. The Trial
Examiner also found that Respondent had not engaged in certain
other unfair labor practices, and recommended that the allegations of'.
the complaint pertaining thereto be dismissed. Thereafter, the Gen-
eral Counsel filed exceptions 1 to the Decision and a supporting brief'.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and,
Jenkins].
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 Decision,,
the exceptions, the brief, and the entire record in the case, and hereby
adopts the findings,2 conclusions, and recommendations of the Trial
Examiner with the following additions and modifications:
1. The Trial Examiner found that Respondent's refusal to bargain
with the Union was not unlawful because (a) the unit for which the
Union sought bargaining was "inherently inappropriate," (b) Re-
spondent's insistence upon an election was in good faith and was not,
motivated either by a rejection of the collective bargaining principle
or by a desire to gain time in which to undermine the Union, and
(c) the Union's hasty filing of unfair labor practice charges foreclosed
further bargaining.
We disagree with each of these subsidiary findings of the Trial
Examiner and therefore with his conclusion that Respondent did not
violate Section 8(a) (5) of the Act.
(a) In its letter of May 23, the Union asked recognition as bargain-
ing representative of "all employees" with the customary exclusions..
The Trial Examiner found that, because in defining the unit the Union
did not specifically exclude salesmen, the unit was inappropriate. At.
the time of the Union's organizational effort, its demand for recogni-
tion, and the May 27 meeting with Respondent, the latter had no sales-
men in its employ, although it had vacancies for that position which
it did not fill until June and July, subsequent to its refusal to bargain.
The Union never demanded that it be recognized as representative.
of salesmen and in refusing to bargain with the Union, Respondent.
did not give this as a reason for its conduct. This defense is an
afterthought.
' As no exception was taken to the Trial Examiner 's finding that the "speed up" of
machine operation after union activity commenced violated Section 8 ( a) (1) of the Act,
we adopt such finding pro forma.
2 In section III of his Decision, the Trial Examiner erroneously says that General
Counsel ' s Exhibit No. 3 is an affidavit of Edward R. Toliver . As the exhibit is an affidavit
of Donald I. Sutton, we hereby correct this inadvertent error.
FLEMING & SONS OF COLORADO, INC., ETC. 1273
We find that the unit of "all employees" was not intended nor was
it understood to include salesmen, and that Respondent's refusal to
bargain with the Union was not based on any serious doubt as to the
appropriateness of the unit for which the Union demanded recogni-
tion. As stated by the Board in the United Butchers case : 9
If the Respondent had doubts as to the scope and composition of
the proposed unit, it raised no question with respect to these issues
at the time of the Union's demand for recognition . . . . The
Respondent's objection as to the scope and composition of the unit,
raised for the first time at the hearing, comes too late to convince
ias that its refusal was based on some bona fide doubt as to the
appropriateness of the unit.
Moreover, assuming arguendo, that the Union considered salesmen to
be part of the unit, such inclusion would be at most a minor variance
and subject to modification 4 Excluding salesmen from the unit would
not affect the Union's status as majority representative of the em-
ployees in the appropriate unit.
(b) An employer does not have an absolute right to insist upon a
Board-directed election.
Where, as here, the Employer entertains no reasonable doubt either
with respect to the appropriateness of the proposed unit or the
Union's representative status, and seeks a Board-directed elec-
tion without a valid ground therefor, he has failed to fulfill the.
bargaining requirements under the Acts
At the May 27 meeting, Respondent's representatives examined the
Union's card showing and the personnel manager conceded that the
-cards appeared to indicate that the Union represented a majority in the
unit. Respondent did not challenge the authenticity of the signatures
on the cards, nor did it give any other reason for doubting what the
cards appeared to establish, that the Union represented a majority of
the employees in the appropriate units We find that Respondent did
not have a reasonable doubt as to the Union's representative status
or the appropriateness of the unit, and therefore was not entitled,
under the circumstances, to insist that the Union prove its majority in
a Board-directed election.
(c) Although the Union filed its unfair labor practice charges on
May 27, the very day on which the first meeting with Respondent was
held, we find, contrary to the Trial Examiner, that this action was not
United Butchers Abattoir, Inc., 123 NLRB 946, 957.
* The Hamilton Plastic Molding Company, 135 NLRB 371, 373.
e Fred Snow , et al., d/b/a Snow & Sons, 134 NLRB 709, 710-711, enfd . 308 F. 2d
,698 (C.A. 9).
O The record indicates that Respondent is not a newcomer in dealing with unions as it
recognizes and has collective agreements at two other plants.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cause of the breakdown in bargaining. At this meeting, Respond-
ent stated clearly and unequivocably that it would not negotiate with
the Union unless the latter established its majority in a Board-
directed election. In view of Respondent's position, the Union was not
required to go through the futile task of arranging more bargaining
meetings which, because of Respondent's firm position, were doomed
to be sterile.
Accordingly, we find, contrary to the Trial Examiner, that by
refusing to bargain with the Union on and after May 27, 1963, Re-
spondent violated Section 8 (a) (5) and (1) of the Act.
2. We disagree with the Trial Examiner's finding that Respondent
did not on or about May 24, 1963, threaten employees with economic
reprisals for engaging in union activities.
About May 24, employee Saaazar overheard Plant Manager Waller
say to two other officials and to Roger Smith, another employee,?
that "if they [the employees] got the Union, they [Respondent] were
going to close the plant down." Employee Sandoval testified that
Smith repeated to him the substance of this threat.
The Trial Examiner found that the statement of Plant Manager
Waller was not unlawful because Waller was not aware of employee
Salazar's presence, and he did not intend the conversation to be com-
municated to employees. However, Smith was an employee. The
threat of plant closure made to him was unlawful, regardless of
whether Waller was aware that Salazar had overheard his conversa-
tion, or intended his statement to be repeated by Smith to other em-
ployees. Accordingly, we find that by Plant Manager Waller's state-
ment to employee Smith, Respondent violated Section 8 (a) (1) of
the Act.
3. We agree with the Trial Examiner, for the reasons set forth in
his Decision, that Respondent's granting of a general wage increase
in August 1963 to all employees in its corporate system was not
unlawful.
THE REMEDY
Having found that Respondent had engaged in certain unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.
As we have found that Respondent unlawfully refused to recognize
and bargain with the Union we shall order Respondent, upon request,
to bargain collectively with the Union and, if an understanding is
reached, to embody such understanding in a signed agreement.
7 The Trial Examiner variously refers to Smith as an "Official," an "employee," and an
"overseer." According to the record, Smith is an hourly-paid press operator. There is
no evidence that he is a supervisor. In fact, the Trial Examiner found that he is not.
We concur in this finding.
FLEMING & SONS OF COLORADO, INC.,.ETC. 1275
Upon the basis of the foregoing, and upon the entire record in the
case, the National Labor Relations Board hereby makes the following:
ADDITIONAL CONCLUSIONS oi' LAW'
5. All production and maintenance employees employed at the Em-
ployer's Denver, Colorado, plant, excluding salesmen, office clerical em-
ployees, guards, watchmen, professional employees, 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.
6. At all times since May 27, 1963, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
No. 452, has been, and now is, the exclusive representative of all the
employees in the above appropriate unit, for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
7. By refusing to recognize and, bargain with the Union on and after
.May 27, 1963, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (5) of the
Act.
S. By threatening employees With economic reprisals for engaging
in union activities, Respondent has engaged in unfair labor practices
witliin'the meaning of Section 8(a) (1) of the Act.
.9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Fleming & Sons of Colorado, Inc., a division of Fleming
Sons, Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No. 452, as the exclusive representative of its employees in
the following unit which the Board finds appropriate for the purposes
of collective bargaining :
All production and maintenance employees employed at the Em-
ployer's Denver, Colorado, plant, excluding salesmen, office clerical
employees, guards, watchmen, professional employees, and supervisors
as defined in the Act.
(b) Threatening employees with economic reprisals and increasing
employees' speeds of production because of their union sympathies and
activities.
s Delete the Trial Examiner ' s Conclusion of Law No. 5.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named Union
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named Union
as the exclusive representative of the employees in the unit described
above, with respect to grievances, labor disputes, rates of pay, wages,
hours of employment, and other conditions of work, and, if an agree-
ment is reached, embody it in a signed contract.
(b) Post at its Denver, Colorado, plant, copies of the attached no
tice marked "Appendix." s Copies of said notice, to be furnished by
the Regional Director for the Twenty-seventh Region, shall, after be-
ing duly signed by the Respondent's representative, be posted by it
immediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any 'other material.
(c) Notify the said Regional Director for the Twenty-seventh Re-
gion, in writing, within 10 days of the date of this Order, what steps
it has taken to comply therewith.
(d) It is further ordered that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated Section 8(a) (5)
and (1) of the Act by granting a general increase in wages to the em-
ployees in question.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals , Enforcing an
Order" shall be substituted for the words "a Decision and Order."
APPENDIX
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 our employees that :
WE WILL, upon request, bargain collectively in good faith with
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
FLEMING & SONS OF COLORADO, INC., ETC. 1277
men and Helpers of America, Local No. 452, as the exclusive rep-
resentative of all employees in the bargaining unit described below
with respect to rates of pay, hours of employment, and other con-
ditions of employment, and, if an (understanding is reached, we
will embody such understanding in a signed contract. The bar-
gaining unit is:
All production and maintenance employees employed at our
Denver, Colorado, plant, excluding salesmen, office clerical
employees, professional employees, guards, watchmen, and
supervisors as defined in the Act.
WE WILL NOT threaten our employees with economic reprisals
or increase our employees' speeds of production because of their
union sympathies and activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise. of their right to
self-organization, to form labor organizations, to join or assist
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 452, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named labor organization
or any other labor organization, except to the extent that this right
may be affected by a lawful agreement requiring membership in a
labor organization as a condition of employment, as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
FLEMING & SONS OF COLORADO, INC., A
DIVISION OF FLEMING & SONS, 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 Twenty-
seventh Region, 609 Railway Exchange Building, 17th and Champa
Streets, Denver, Colorado, Telephone No. 534-4151, Extension 513,
if they have any question concerning this notice or compliance with
its provisions.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on May 27, 1963, by the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local No. 452,
herein called the Union , against Fleming & Sons of Colorado, Inc., a division of
Fleming & Sons , Inc., the Respondent herein , the General Counsel of the National
Labor Relations Board , by the Regional Director for the Twenty-seventh Region,
issued a complaint dated July 30, 1963. The complaint alleges that the Respondent
Company has engaged in unfair labor practices within the meaning of Section 8(a) (1)
and (5) of the National Labor Relations Act, as amended ( 61 Stat . 136), herein
called the Act. Copies of the charge, complaint , and notice of hearing were duly
served upon the Respondent and the Union.
The complaint alleges, in substance , that the Respondent violated Section 8(a)(1)
of the Act in that it threatened employees with economic reprisal if employees did
not refrain from becoming or remaining members of the Union or giving any as-
sistance or support to it; unilaterally changed existing wage rates and hours of
employment , increased the rates and speeds of production , decreased its working
hours, and changed work assignments to make them more arduous . The complaint
also alleges that the Respondent engaged in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act in that it refused to bargain collectively with the
Union.
The Respondent in its answer admitted the jurisdictional allegations of the com-
plaint and that the Union is a labor organization within the meaning of Section 2(5)
of the Act but denies the commission of any unfair labor practices.
Pursuant to proper notice given , a hearing was held on the issues framed by the
pleadings in Denver , Colorado, on September 3 and 4, 1963, before Trial Examiner
Henry S. Sahm . All parties were represented by counsel and were afforded full
opportunity to participate in the hearing, to introduce relevant evidence , and to argue
orally. Excellent briefs were filed by counsel for the General Counsel and the
Respondent on October 9, 1963, which have been fully considered.
Upon the entire record in this case , including the briefs filed by the parties and
citations of cases alleged to be dispositive of the issues in this case , and from 'observa-
tion of the demeanor of the witnesses while testifying , the Trial Examiner makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , Fleming & Sons of Colorado , Inc., is, and has been at all times
material herein , a Texas corporation and an operating division of Fleming & Sons,
Inc., which exists by virtue of the laws of the State of Texas, and maintains its
principal office at Dallas, Texas. At all times material herein , the Respondent has
been, and is now, engaged in the manufacture of corrugated boxes at its plant at
Denver , Colorado.
The Respondent , in the course and conduct of its business operations at Denver,
Colorado , annually sells and causes to be shipped directly from its Colorado plant
goods and materials valued in excess of $50,000 to Adolph Coors , Canogren,;and
Tasty Foods, Inc., located within the State of Colorado , which enterprises annually
sell and cause to be shipped directly from points and places located within the State
of Colorado to points and places located without the State of Colorado goods and
materials valued in excess of $50 ,000. It is conceded and found , therefore, that
the Respondent Company is engaged in commerce within the meaning of the Act,
and it is subject to the jurisdiction of the Board.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In May 1963 , Respondent 's production department employees , comprising its
machine operators , became interested in organizing a union .' On May 20, 1963,
'As of September 1963, the Respondent 's personnel comprised nine hourly paid ma-
chine operators , two salaried salesmen , an office manager, one office clerical employee,
plant superintendent , and plant manager.
FLEMING & SONS OF COLORADO, INC., ETC. 1279
Victor Roybal, who is employed by the Respondent Company as a lift-truck and
machine operator, telephoned the union offices, evidently at the request of and acting
for his coworkers, and spoke to Edward R. Toliver, a union official, with respect
to the possibility of organizing a union at Respondent's production department.
Toliver arranged to meet Roybal at the plant the following day. Toliver gave Roybal
union membership application cards, which authorized the Union to act as bargaining
agent, and told Roybal to solicit the employees to sign these cards for the eventual
purpose of having the Union represent the said employees in collective-bargaining
negotiations with the Respondent.
The same day, May 21, Roybal obtained the signatures of seven of the production
employees 2 and returned the signed cards to Toliver, the union official.
On May 23, 1963, the Company received a letter dated May 22 from the Union's
president, Donald I. Sutton, which reads as follows:
This is to advise your Company that the undersigned Local Union has been
authorized by all employees employed by your Company at 1100 W. 45th Ave.,
Denver, Colorado, excluding office clerical employees, guards, watchmen, pro-
fessional employees and supervisors as defined in the National Labor Relations
Act, 1947, as amended "to represent them on all matters concerning their wages,
hours of work and other conditions of employment with your company.
This is also to inform your company that we are in a position to prove that
we represent the above-described employees as their collective bargaining agent.
As the above-described employees' authorized Collective Bargaining Agent,
we request that your company meet with us on Friday, May 24, 1963 at 10 A.M.
in our office at 3245 Eliot Street, Denver, Colorado, for the purpose of negotiat-
ing terms of a labor agreement covering the wages, hours of work or other con-
ditions of employment for said employees.
A meeting was arranged for May 27 at the Union's office. Representing the Com-
pany were Oather Waller, plant manager, and Earl Johnson, personnel director, and
for the Union, Donald I. Sutton and Edward R. Toliver. The meeting began by
Toliver stating that the Union represented a majority of the Company's employees
and requested that it be recognized as the collective-bargaining agent for the em-
ployees. Johnson requested proof of the Union's majority whereupon Toliver handed
Johnson seven signed cards which Johnson inspected and asked Waller, the plant
manager, if the names that appeared on the union cards were employees of the Com-
pany. Waller replied in the affirmative but the authenticity of the signatures could
not be verified at that time as the company records were at the plant. Sutton, the
Union's bysiness representative, testified that Toliver offered to have photocopies of
the cards made but Johnson declined the offer stating, "because when the Teamsters
petition the National Labor Relations Board for an election, that all of this would
be confirmed."
Johnson then stated that the cards appeared to indicate a majority of the em-
ployees had signed whereupon Toliver asked Johnson to enter into negotiations for
a contract. Johnson replied that he would "rather" not enter into any negotiations
until the Board had conducted an election among the employees to determine if they
wish to be represented by the Union. Toliver replied this was unnecessary as the
seven signed cards showed the Union represented a majority of the employees, where-
upon Johnson again advised Toliver that he would "rather" have the Board conduct
an election to determine if the Union had majority status. Toliver then suggested
that the Company file a representation petition but Johnson said this was up to the
Union. No agreement could be reached when the Company continued to state it
preferred a Board-conducted election and the Union insisted that it was not necessary
as it had shown by the cardcheck that the Union represented a majority of the em-
ployees in the unit. Toliver then accused Johnson of refusing to bargain which the
latter denied, stating that he would recognize and bargain with the Union if they
should win a Board-conducted election. The meeting came to an abrupt end about
3 p.m., approximately 45 minutes from the time it began, when Toliver informed the
company officials he would file an unfair labor practice charge against the Company
and call a strike of the employees. A charge was filed with the Board that same day.
Contentions
The General Counsel alleges that the Respondent by refusing to recognize the em-
ployees' signed authorization cards and insisting it would not bargain with the Union
until the Union proved its representative status by a Board-conducted election vio-
lated Section 8(a) (5). The Respondent answers this contention by arguing that the
2 Between May 21 and September, an additional machine operator was hired.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARIT
Company may refuse to rely upon the authorization cards and can insist that the
Union establish its majority by means of a Board-conducted election, especially
where, as in this case, there is an absence of any mala fides on the part of the-
Company.
The Respondent also contends that the unit requested by the Union does not con-
stitute an appropriate collective-bargaining unit as it includes both machine opera-
tors and salesmen thereby justifying its refusal to bargain until the Union agreed to
a Board election. The General Counsel attempts to rebut this argument by urging,
that assuming salesmen have no substantial community of interest with machine
operators, nevertheless, no salesmen were employed by the Company on the date of
the demand to bargain which is controlling in determining the appropriateness of
the unit. Moreover, contends the General Counsel, the Respondent is precluded!
from asserting inappropriateness of the unit as a defense as it was not asserted
until the hearing. The General Counsel has cited no authority for this proposition
nor has research disclosed any cases which support this argument. Moreover,
Toliver, the union official, in his affidavit (General Counsel's Exhibit No. 3) states
that Johnson, the Company's personnel director, told the union officials at the
May 27 meeting that "the Board would have to consider the appropriateness of
the unit .. .
Conclusions
The Respondent contends that the contract unit described in the Union's bargain-
ing request was inappropriate for collective bargaining as it combined in a single
grouping both machine operators and salesmen .3 The machine operators produce
corrugated boxes whereas the salesmen who are white-collar employees call upon
customers to solicit orders for the Company's products. The salesmen are salaried
employees where as the machine operators are paid by the hour. There is no con-
tact with the production employees and the supervision and the control of the
machine operators is separate and distinct from that governing the salesmen. Thus,
the machine operators have their own production supervisor whereas the salesmen
are under the direct control of the plant manager. There is neither common super-
vision nor homogeneity or community of interests or functions between the machine
operators and salesmen as the duties and working conditions of the machine opera-
tors are different from those of the salesmen and there is, as well, a lack of simi-
larity of skills or interchangeability of jobs between them. The salesmen category,.
therefore, does not warrant their inclusion nor are they properly included in a bar-
gaining unit comprising machine operators as the determinative elements of an
appropriate bargaining unit is to group together only employees who have substan-
tial mutual interests in wages, hours, and other conditions of employnient.4 The
divergence in the Union's description of the unit in its demand for recognition is.
substantial as the nature of the salesmen's employment, as well as their conditions
of employment, gives rise to a sufficiently separate and; distinct community of inter-
est so as to preclude their inclusion in the unit sought. Accordingly, it is found
that the unit sought is inherently inappropriate for purposes of collective bargain-
ing as there is not only a lack of operational integration but there is also a sub-
stantial variation between the proposed unit and the appropriate unit because it
affects the essential composition of the unit .5
However, the General Counsel contends the Respondent is precluded from assert-
ing that the salesmen were improperly included in the unit because on the date the
Union requested the Company to bargain there were no salesmen employed by the
Respondent Company. It is true there were no salesmen on the payroll as of
May 23, 1963, the date the Union made its request of the Company to bargain, but
that was due to there being temporary vacancies in this job category on that particu-
lar date. The Company had employed a salesman from approximately October
1961 until May 18, 1963, and for a period of about 2 weeks, namely, May 18 to
June 6, 1963, the salesman's job was vacant while the Company was in the process
of seeking to hire a replacement. On June 6, 1963, a replacement salesman was,
hired and on July 16, 1963, a second salesman was hired.
Moreover, the classification of salesman was a continuing job category which
had been established by the Company as early as February 1961 and on the date
8 "All employees employed by [the] Company excluding office clerical employees, guards,
11watchmen, professional employees and supervisors . . .
4 Fifteenth Annual Report of the National Labor Relations Board, pp. 38-39. See also
Kalamazoo Paper Box Corporation, 136 NLRB 134, 137.
s Joslin Dry Goods Company, 118 NLRB 555; cf. The Lord Baltimore Press, Inc.,
144 NLRB 1376.,
FLEMING & SONS OF COLORADO, INC., ETC. 1281
the request to bargain was made these salesman positions were then in existence and.
the vacancies in the process of being filled. Inasmuch as the job category of sales-
man had been established for some time at the Respondent's plant, the intervening.
happenstance of temporary vacancies in that job category cannot be utilized to
force salesmen then in the process of being hired (and without consulting them)
into an inappropriate unit unilaterally selected by the Union. The wishes of the
salesmen and their relative independence as a distinct working force cannot be ig-
nored in designating an appropriate unit.6 For it is inimical to the Act's statutory
scheme that the Union and not the Board, under the circumstance here disclosed,
should not be entrusted with the authority to determine by the fair election contem-
plated by the statute, which unit will assure the salesmen of the fullest freedom in.
exercising the rights guaranteed them by the Act. To hold otherwise, under such
circumstances, would be tantamount to disregarding the paramount legal rights and
vested primary interests of the salesmen?
Then, too, there is insufficient evidence which reveals antiunion sentiment or any
clearly evinced determination by the Company not to bargain with the Union within
the meaning of Section 8(a)(5) of the Act. In fact, the evidence is to the contrary..
The most that can be said is that possibly the Company may have been reluctant.
to accepting the signed cards-a not uncommon phenomenon and hardly enough to
indicate union animus, much less enough on which to base a conclusion of a
violation within the meaning of Section 8(a)(5), when it is considered the company
representatives explicitly informed the union officials that if the Union were to win
a Board-conducted election, it would both recognize and bargain with the Union..
Thus, the Company invited the Union to petition the Board for an election but
instead the Union affirmatively refused to cooperate. Rather, the Union peremp-
torily and summarily broke off negotiations, thereby .depriving the Company of an.
opportunity to negotiate further , made no effort to schedule additional meetings,
threatened the Company with a strike, and within a matter of a few hours after
the first and only meeting of 45 minutes concluded, precipitately filed an unfair
labor practice charge against the Company. In these circumstances , it is not
believed the Union comported itself reasonably by refusing the Company's sug-
gestion of a secret Board election to determine the appropriate unit and its majority
status or did it sufficiently press its claim for recognition so as to charge the Company
with an unlawful refusal to bargain.
Then also, the company representatives emphasized they would "rather" have
the Union's majority status determined by a secret election conducted by the Board
explaining that not only was this method more dignified and orderly but it would
leave the determination of the appropriate unit up to the Board 8 and better ascer-
tain the wishes of the employees as they sometimes changed their minds after
signing union cards. And equally important , testified the company witnesses, in
previous negotiations with other unions which had organized Respondent's employees.
at its Dallas and Houston, Texas, plants, it was established company policy to request
that these organizing unions prove their majority status by a Board -conducted election.
ordinarily an employer faced with the demand for recognition by a labor
organization which claims to represent a majority of his employees may refuse
to rely upon evidence of the union 's representation and insist that the union
establish its majority by means of a Board-conducted secret election. But when,
as stated in the Joy Silk Mills case, "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." Whether an employer's refusal to bargain is impelled by
a good- or bad-faith doubt as to the union's majority status can only be tested
by reference to the total picture of the employer's conduct revealed by the record
as a whole .9
6 See Pittsburgh Plate Glass Company v . N.L.R.B., 313 U . S. 146, 152, 157 ; May Depart-
ment Stores d/b/a Famous -Barr Company v . N.L.R.B., 326 U.S. 376, 380.
' Cf. N.L.R.B. v. Superior Fireproof Door & Sash Company, Inc., 289 F. 2d 713
(C.A. 2).
8 Sutton, the Union's president , in an affidavit ( General Counsel 's Exhibit No. 3) given
to a Board investigator,. stated that Johnson, the plant manager , at the meeting "said
that the Board would have to consider the appropriateness of the unit " if the Union
acceded to the Company ' s request that it petition the Board for a representation election.
8 Sunset Lumber Products, 113 NLRB 1172 , 1175. Accord : Chamberlain Corporation,
75 NLRB 1188, 1189-1190.
756-236-65-vol. 14 7-8 2
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Again, in Charles A. Blinne, d/b/a C. A. Blinne Construction Company, the Board
stated that it "is consonant with the underlying statutory scheme . . . to resolve
,disputed issues of majority status, whenever possible, by the machinery of a Board
election." 10
It is found, therefore, under the circumstances peculiar to this case, that the
Respondent was not only legally justified in refusing to rely upon evidence of major-
ity representation in the form of authorization cards signed by the employees, but
also insisting that the Union prove its majority in a secret election under Board
;auspices provided that its motive was not a desire to gain time and to take action
to dissipate the Union's majority. Moreover, the Company's professed preference for
a Board election should not be distorted into an unfair labor practice where it is
plain that there is no probative evidence of an unwillingness on its part to meet with
.the Union. Furthermore, the General Counsel has not proved by a preponderance
of the substantial evidence that the Respondent had such a motive. On the contrary,
the evidence reveals that the Respondent had a general policy of requesting certi-
fication of unions under the aegis of the Board at its two other plants. This evidence
indicates the Respondent's good faith in dealing with the Union herein.ll
Moreover, the record does not sustain the General Counsel's position of a refusal
to bargain within the meaning of Section 8(a)(5) of the Act not only because of
the Union's failure to request bargaining in a proper unit but also the General
.Counsel has failed to prove that the Respondent's insistence on a Board election was
motivated by bad faith or by either an adamant determination not to negotiate with
".the Union or a complete rejection of the bargaining principle envisaged by the Act.
Furthermore, there is no evidence disclosing that Respondent Company had a dis-
position to evade its obligation to bargain or a policy or practice of denying employees
the rights guaranteed them by the Act. In fact, the record suggests the contrary as
the Company recognizes and evidently enjoys amicable relations with other unions
at its Dallas and Houston, Texas, plants. Nor does the record contain evidence of
union animus as would require that the Company's preference for a Board election
'be looked "upon with suspicion. If importance is attached to a hostile union attitude
.on the part of an employer in characterizing his acts, conversely, it would'seem, as
a matter of equity, that an employer with a friendly union attitude is entitled to
,credit' in characterizing its acts.12
An employer may in good faith insist on a Board determination of a disputed unit
issue and "a Board election if such insistence is neither motivated , as found herein,
by a rejection of the collective-bargaining principle nor by a desire to gain time
within which to undermine the union. As far as the record shows, the Company
took its position honestly, in good faith, and without a hostile or arbitrary attitude.
Nor should it be assumed that doctrines evolved in other contexts will be equally
well adapted to the facts peculiar to the instant proceeding because the overall
"bargaining conduct of the Respondent here did not amount to a refusal to bargain in
;good faith. It is found, therefore, that the Company in good faith sought a Board
election as there is nothing inconsistent in Respondent 's conduct to indicate otherwise.
Finally and equally important, the Union's hastily filing a charge on the same day
'that the one and only 45-minute negotiation meeting was held precluded any addi-
tional meetings being held, thereby foreclosing any further bargaining. Under these
facts, it would not be reasonable to hold that the Respondent's conduct constitutes
substantial evidence upon which to base a finding of a refusal to bargain. An
"employer is entitled to a reasonable time, varying according to the circumstances of
the case, in which to consider the validity of a union's request to bargain.13 Under
the circumstances in this case, it would not be an unreasonable limitation to hold that
before the Union swore out its charge, after only one meeting, the Respondent should
have been offered a reasonable opportunity to determine the validity of the Union's
representation claim ,14 additional negotiation meetings scheduled , and not be placed
in the position of being accused of refusing to bargain with respect to unstated
demands.
10135 NLRB 1153 at 1162.
11 B. F. Goodrich Company, 106 NLRB 757 at 761. A. L. Gilbert Company, 110 NLRB
"2067, 2069-2070.
12 See N.L.R.B. v. Chronicle Publishing Company, Inc., 230 F. 2d 543, 547-548 (C.A. 7).
18 See Louis Natt , d/b/a Mrs. Nott's Bakery, 44 NLRB 1099 , 1108. -
74 N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1", 44, holds that Section 9(a)
.of the Act imposes upon an employer only the duty of negotiating with the authorized rep-
resentative of a majority of his employees. At the time the charge was filed in this case,
the Respondent was exercising this privilege , namely, the right to ascertain whether the
Union did represent .a majority of its employees in an appropriate unit.
FLEMING & SONS OF COLORADO, INC., ETC. 1283
The obligation to bargain collectively encompasses a correlative and affirmative
duty of equitable dealing. Collective bargaining is stifled at the source if the party
upon whom the demand is being made is not accorded a reasonable opportunity to
investigate and determine the validity of the representation claim. Even assuming,
arguendo, that the unit for which bargaining was requested is appropriate and that
the Union represented a majority of the employees, nevertheless, if the Respondent
had not been accorded sufficient time to resolve its doubt with respect to the unit and
majority when the charge was filed on the same and only day a meeting was held, it
follows that there could be no refusal to bargain if there was no obligation to bargain
at that time.ls The filing of an unfair labor practice charge on the same day the only
meeting was held and at the same time delivering a strike ultimatum does not appear
to foster the good-faith indicia defined in Section 8(d) of the Act which provides
that: . . to bargain collectively is the performance of the mutual obligation of
the employer and the representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement, or any question arising there-
under .
'.
The underlying theme of collective bargaining is negotiation as there
is a mandate to continue good-faith discussions. The filing of an unfair labor prac-
tice charge along with the threat of a strike on the same day of the first and only
45-minute meeting, however, precluded any further negotiations. Moreover, the
bona fides of the -Respondent; under the circumstances. presented here, could best
have been tested at that juncture by further affirmative steps by the Union looking
toward an additional definite meeting date and collective bargaining before the charge
was filed. It is concluded, therefore, that the evidence presented by the General
Counsel in this case falls short of establishing such bad faith on the part of the
Respondent in its dealings with the Union as constituted a refusal to bargain within
the meaning of the Act.16
All these actions on the part of the Union removed the possibility of the beginning
of any effective negotiations and thus precluded the existence of a situation in which
the Respondent's own good faith could be tested. If it cannot be tested, its absence
can hardly be found. 17
Consequently, on the record as a whole, there Js insufficient evidence to show
that Respondent violated, Section 8(a)(5) of the Act by refusing to bargain with the
Union. Accordingly, it is,recommended that the 8(a)(5) allegations of the com-
plaint be dismissed.18
The Alleged Violations of Section 8(a)(1)
The complaint avers that Waller, plant manager, on or about May 24, 1963,
threatened an employee with economic reprisals if employees supported and joined
the Union. To substantiate this allegation, the General Counsel's witness , Salazar,
an employee, testified that while returning to' his machine at the end of his lunch
period, he stopped at a water fountain to get a drink. Unknown to a group of
men, including Waller, the plant manager, who did not see Salazar and who were
engaged in conversation, Salazar overheard Waller, who was about 10 feet away
from him, say to three company officials: 19 ". . . if they got the union , they were
going to close the plant down." Sandoval, an employee, testified that Smith, an
emnlovee. said to him: ". . . they says if we get the Union, they were going to
close down the plant."
'1 he General Counsel cited as authority for his contention that the above-described
incident was a violation of Section 8 (a) (1), the case of - General Seat and Back
Manufacturing Corporation.20 In that case , the plant superintendent, during an
organizational campaign, came over to an employee described as a "forelady" and
in the course of the conversation interrogated her as to who belonged to the union
and what she had seen and heard (of the organizing campaign ). When the "fore-
150. L. Bailey Grocery Company, 100 NLRB 576, 577-580. See N.L.R.B.
v. Jackson
Press, Inc., 201 F. 2d 541, 544-545 (C.A. 7) ; Texarkana Bus Company
, Inc. v. N.L.R.B.,
119 F. 2d 480, 484 (C.A. 8).
is See Green Colonial Furnace Company, 52 NLRB 161, 163.
17 Times Publishing Company, et al., 72 NLRB 676, 683.
is Cf. South Texas Coaches , Inc., et al., 22 NLRB 502 at 514.
is Lucinskas , office manager, Phipps, plant foreman, and Smith , an overseer but not
alleged by the General 'Counsel to be a supervisor.
20 117 NLRB 1223, 1235.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lady" said she knew nothing, the superintendent "shook his finger" and said "he was
going to let everyone go who had anything to do with the union . . An em-
ployee who was working at her machine some 8 to 10 feet away heard the conversa-
tion and the Trial Examiner held that by the superintendent making this threat within
the hearing of the machine operator, he violated Section 8(a)(1). The Board
affirmed the Trial Examiner without comment.
The above-cited case is believed to be inapposite to the facts in the instant case
as there the superintendent spoke to a "forelady" but the intermediate report fails
to disclose whether or not she was a supervisor. More over, the superintendent
came to where the "forelady" was working in the plant and it was reasonable for
his to expect that anything he told her would be overheard by fellow employees
working in close proximity to where the conversation occurred. When compared
with the facts in the instant case, the two incidents are clearly distinguishable par-
ticularly when it is considered that Salazar's presence was unknown to Waller,
Respondent's plant manager, nor did Waller intend the conversation to be communi-
cated to the employees, and Smith, who is alleged to have repeated this purported
conversation to employee Sandoval, is not claimed by the General Counsel to be a
supervisor within the meaning of the Act. Therefore, Smith's statement to Sandoval
cannot be imputed to Respondent so as to hold it liable. Nor can Salazar's over-
hearing this conversation, unknown to the participants, be considered interference,
restraint, or coercion of Salazar within the meaning of Section 8(a) (1) of the Act,
because there is no basis upon which it can reasonably be inferred that this con-
versation was intended to have such consequent impact upon Salazar nor when it was
allegedly relayed to Sandoval did Smith have inherent capacity to so coerce him.
Accordingly, it will be recommended that this allegation of the complaint be
dismissed.
The complaint also alleges that Phipps, production manager, unilaterally changed
existing wage rates and hours of employment, increased the rates and speeds of
production, decreased working hours and changed work assignments. There was no
evidence introduced by the General Counsel to substantiate these allegations except
with respect to Respondent increasing the speed of the machines which the employees
operated and granting a 2-percent increase on or about August 1, 1963, to all its
employees.
With respect to the wage increase, it is uncontroverted that this was given at the
same time to all employees in all Respondent's plants throughout the country. As
this August pay raise was a general corporate increase applicable not only to Respond-
ent's Denver plant but to its two other plants, this wage increase has not been estab-
lished as having any causal connection with the organizing campaign of the Union at
the Denver plant which began 2 months before nor with the charge filed on May27.
It would seem, moreover, that pending an organizational campaign, the employer
need not stand still and maintain the status quo (not granting a pay raise) without
regard to legitimate business considerations which are economically motivated. The
decisive factor is the timing and motivation. Here the timing and object of the-
Company in granting the wage increase has not been shown to have been motivated
by an intention to interfere with, restrain, or coerce the employees' rights guaranteed'
to them by Section 7 of the Act. Nor does the record support an inference that the
timing of this increase was more than a mere temporal coincidence constituting an
award of economic benefits which violated Section 8(a)(1). The Board has said
that a unilateral increase would be permissible in keeping with an'established com-
pany policy, "where the raise . . . was one which was regularly or periodically
granted or one which the employees normally expected to receive." 21 It will be
recommended, therefore, that this allegation of the complaint be dismissed 22
Five of the seven employees who testified stated that shortly after union activity
was initiated at the plant the production ouput of the machines they operated was-
increased. The Respondent contends its speedup was for business reasons denying-
that this speedup was intended to coerce the employees because of their adherence
to the Union.but that changes in machine speed were made, as in the past, as a part
of Respondent's practice in a plant which recently opened of gradually increasing
production rates as new employees gained skill in operating their machines.
n Standard Coil Products, Inc., 99 NLRB 899, 903.
za Burns Brick Company, 80 NLRB 389, 391; W. C. Nabors, d/b/a W. C. Nabors Com-
pany, 89 NLRB 538, 539; Wilma M. Moran, et al., d/b /a Gilleraft Furniture Company;.
103 NLRB 81, 93-94; Campbell & McLean, Inc., 106 NLRB 1049, 1051.
FLEMING & SONS OF COLORADO, INC., ETC. 1285
Production commenced in October 1961. As of approximately June 1963,23 when
it is alleged this "speedup" began, the following employees who testified had worked
at the plant for the following periods of time:
Salazar ----------------------------------------------- 16 months
Roybal----------------------------- ------------------ 15 months
Virgil ------------------------------------------------ 10 months
Sandoval --------------------------------------------- 11/2 months
Salmerson-------------------------------------------- 19 months
Sanchez ---------------------------------------------- 16 months
Valdez ----------------------------------------------- 13 months
It is true, as- Respondent contends, that in a new plant, such as the one here, the
speed of the various machines is increased as the employees, all of whom have had
no prior experience, gain skill in their jobs but there comes a time when with increas-
ing experience, a machine operator reaches the peak of his proficiency. Waller, the
plant manager, testified that after 6 months on the job, a machine operator would
become "competent enough to do a creditable job" and "very competent within a
year's time."
In applying Waller's formula to the length of time the various employees had
worked for Respondent, as detailed above, it would appear that all of them with
the exception of one or possibly two, would have reached their maximum profi-
ciency and production when Respondent increased the speed of the machines in
June after union organizational activities had begun on May 23. It is believed and
found that this "speedup" after union activity commenced was not a mere temporal
coincidence but was a change in working conditions intended to convey Respondent's
displeasure with its employees for their signing union cards and therefore, was a
violation within the meaning of Section 8(a)(1) of the Act.
The General Counsel in his brief argues that if it is found that Respondent com-
mitted an act in violation of Section 8(a)(1), it necessarily follows that Section
8(a)(5) also was violated which is sometimes referred to as a per se violation.24
However, this concept was discredited in The Walmac Company case 25 where the
Board stated:
Apparently, it is the theory of the Trial Examiner that in any situation where
a union claims, but is denied, recognition as majority representative and the
employer commits any form of unfair labor practice, ipso facto, the employer
also thereby violates Section 8(a)(5). We cannot agree with this principle,
and past Board decisions do not support it.
In Harcourt and Company, Inc.,26 the Board stated:
Our colleague apparently assumes that every interference by an employer
with the right of its employees to bargain collectively through representatives
of their own choosing is per se an unlawful refusal to bargain with their statu-
tory representative. We do not understand this to be the law.
It is well established that violations of Section 8(a)(2), (3), (4), and (5)
are species of the generic unfair labor practices defined in Section 8(a)(1),
and hence conduct violative of those sections is also violative of Section 8(a) (1).
The converse, however, is not true. For example, interference with the right of
the employees to bargain collectively is a much broader concept than a refusal
to bargain with their statutory representative. Indeed, the commisison of any
of the unfair labor practices defined in the Act constitutes at least an indirect
interference with that right, for the Act was designed to encourage collective
bargaining and to assure to employees the right to bargain collectively through
23 The witnesses testified the "speedup" began shortly after the Union began to orga-
nize ; the Union's request for recognition was received by Respondent on May 25, 1963 ;
the meeting with the Union took place on May 27, and the charge was filed the same day.
2' In N.L.R.B. v. Miranda Fuel Co., 326 F. 2d 172 (C.A. 2), the court in commenting
"upon the per se approach" stated: "Like all cliches and short cuts in the law, designed
to make life easy for the judicial officer who has to make the decision, this merely
eliminates the thinking process necessary to get at the root of the matter."
21 106 NLRB 1355 at 1356. Accord: Caldwell Packaging Company, 125 NLRB 495, 496,
footnotes 4 and 5; KTRH Broadcasting Company, 113 NLRB 125.
X98 NLRB 892 at 900-901.
0
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing . Thus, coercive statements by an em-
ployer, as well as any other conduct engaged in by an employer that is cal-
culated to prevent its employees from organizing for the purpose of collective
bargaining . constitute acts of interference with the right of the employees
to bargain collectively , just as does a direct refusal to bargain with their bargain-
ing agent . Under our dissenting colleague's theory, all such conduct would
constitute an independent violation of Section 8(a)(5). We cannot agree with
this legal conclusion.
It is found , therefore , under the facts peculiar to this case, and the applicable law,
that Respondent 's insistence on a Board election and its doubt about including sales-
men in the production unit can neither be equated with a refusal to bargain nor has
the "speedup" any causative relationship to an 8 (a)(5) violation as it was not
motivated by Respondent 's seeking to avoid its duty to bargain . On the contrary,
Respondent repeatedly assured the Union that if it won the election , it would begin
bargaining immediately . 27 Moreover , the lone unfair labor practice does not evidence
a plan to destroy the Union 's majority by unlawful means .28
IV. THE REMEDY
Having found that the Respondent has increased the speeds of production of the
various machines operated by its employees in violation of Section 8(a)(1), it shall
be recommended that the Respondent cease and desist therefrom.
Inasmuch as Respondent 's antiunion activities are not so extensive in manner and
scope and are not of such an aggravated character as to indicate an attitude of
general opposition to employees ' rights, it will be recommended that Respondent
only be required to cease and desist from in any like manner ' interfering with, re-
straining, or coercing its employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
Because of the Union's precipitous action in filing an unfair labor practice charge
which resulted in negotiations being aborted , it is not believed that it would preju-
dice the employees unduly in aiming for remedial restoration of the status quo
ante to ask that they demonstrate , in an atmosphere free of any possible trace of
constraint , their desires in a secret election conducted under Board auspices . Equally
important, also, is the belief that under the circumstances here revealed , the Board
should determine the proper unit and who is eligible to vote.29
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union herein is a labor organization within the meaning of Section 2(5)
of the Act.
2. Fleming & Sons of Colorado , Inc., a division of Fleming & Sons, Inc., is an
employer who at all times material hereto was engaged - in commerce within the
meaning of the Act.
3. By interfering with ,.restraining , and coercing employees , in the exercise of rights
guaranteed in Section 7 of the Act, Respondent Company has engaged in unfair
labor practices withinthe meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent Company has not committed a violation of Section 8(a)(5)
of the Act, as alleged in the complaint . It is recommended that the allegations of
the complaint setting forth said violation be dismissed.
[Recommended Order omitted from publication.]
See Delight Bakery, Inc., 145 NLRB 893, Trial Examiner ' s Decision; Emma Gilbert,.
d/b/a A. L. Gilbert Company , 110 NLRB 2067, 2069-2076.
28KTRH Broadcasting Company , 113 NLRB 125, 130-131.
'B See N.L.R.B. v. The Joclin Manufacturing Company , 314 F. 2d 627 (C.A. 2), and
The Halsey IV. Taylor Cornpany, 145 NLRB 425, where the Board treated a representa-
tion petition as a motion for clarification , and determined the status of the disputed
employees in the unit.