Fred & Sons O. K. Rubber Welders

National Labor Relations Board - Board Decisions

Mar 5, 1965

151 N.L.R.B. 446 (N.L.R.B. 1965)

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, T-6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana , Telephone
No. 529-2411, Extension 6396, if they have any questions concerning this notice or
compliance with its provisions.
Ron Kvarfordt d/b/a Fred & Sons 0. K. Rubber Welders and
Lodge No. 1933 , International Association of Machinists, AFL-
CIO. Case No . 19-CA-2696. March 5, 1965
DECISION AND ORDER
On June 15, 1964, Trial Examiner E. Don Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Decision. Thereafter, the
Respondent filed exceptions to the Decision with supporting argu-
ments.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, 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 and supporting arguments, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner except as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts, as
its Order the Order recommended by the Trial Examiner and
orders that Respondent, Ron Kvarfordt d/b/a Fred & Sons O.K.
Rubber Welders, Pocatello, Idaho, his agents, successors, and
assigns , shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications :
1. Substitute the following as paragraph 1(a) in the Recom-
mended Order :
"Refusing, upon request, to bargain with Lodge No. 1933, Inter-
national Association of Machinists, AFL-CIO, as the representative
of all of Respondent's employees at his place of business in Pocatello,
Idaho, excluding guards, professional employees, and supervisors
within the meaning of the Act."
151 NLRB No. 51.
FRED & SONS 0. K. RUBBER WELDERS 447
2. Add the following paragraph as paragraph 2(c) and renumber
the present paragraphs 2(c) and 2(d) as 2(d) and 2(e), respectively.
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces."
3. In the first indented paragraph of the Appendix, after the
word "former" in the second line thereof, insert the words, "or
substantially equivalent."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 13, 1963, and amended September 26, 1963, by
Lodge No. 1933, International Association of Machinists, AFL-CIO, herein called
the Union, the General Counsel of the National Labor Relations Board, herein called
the Board, issued a complaint dated October 3, 1963, alleging that Ron Kvarfordt,I
d/b/a Fred & Sons O.K. Rubber Welders, herein called the Respondent, violated
Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended,
herein called the Act.
Pursuant to due notice, a hearing in this matter was held before Trial Examiner
E. Don Wilson at Pocatello, Idaho, on December 12 and 13, 1963. The parties fully
participated. Briefs have been received and considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an individual engaged in the retailing and wholesaling of automotive
tires and the recapping of tires in the State of Idaho. During the year ending
December 31, 1962, Respondent, in the course and conduct of its business operations,
purchased goods and services valued in excess of $50,000 directly from States other
than the State of Idaho Respondent, at all times material, has been an employer
within the meaning of Section 2(2) of the Act, and engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
At all times material, the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
(1) On or about August 12, 1963,2 did Respondent violate Section 8 (a) (3) and
(1) of the Act by notifying Kay Jensen,3 Joe Justice and Carol Helmick they were
being terminated as of a few days later, their discharge, in fact, being effected a few
days later; 4 and (2) on or about August 12 and thereafter, did Respondent violate
Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the
exclusive collective-bargaining representative of Respondent's employees?
1 Sometimes spelled K-v-o-r-f-a-r-d-t In the record.
2 Hereinafter, all dates refer to the year 1963, unless otherwise indicated.
8 Sometimes spelled J-e-n-s-o-n in the record.
August 15 for Helmick ; August 19 for Jensen and Justice
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The }acts 5
(1) Relevant events of August 1 to 14
On August 1, Respondent had six employees, Keith D. Potts,6 Kenneth R. Williams,
Joe B. Justice, Kay D. Jensen, Shig Sakurada and Carol Helmick.? All but Sakurada
signed membership applications for the Union, and authorized the Union to represent
them on August 1 when they gave the cards to Walter W. McHugh, the Union's
business representative. McHugh met with the employees again on August 7.
Sakurada was also present on this occasion. McHugh told them he would contact
Respondent when Respondent's shop opened at 8 o'clock, Friday morning, August 9.
He gave each a union button, 1'/z inches in diameter, in red, white, and blue colors,
with the legend "International Association of Machinists, AFL-CIO" and the
Machinists' emblem on it. He directed each to wear the button on Friday morning,
August 9.s
McHugh met with Respondent at the latter's plant at 8 a in., August 9. McHugh
told Respondent all the people in Respondent's shop had joined the Union, were wear-
ing union buttons in the shop at that very time,9 and McHugh was present to negotiate
a contract for the employees. McHugh and Respondent talked for 30 to 45 minutes.
They discussed the fact that Potts had joined the Union. Respondent said Potts
was the shop manager and McHugh said Potts wasn't aware of it, and was a member
of the Union. Respondent said there was a lot Respondent didn't know about
unions. He said he couldn't pay high union wages and McHugh insisted he and the
members had no intention of making unreasonable demands. Respondent said he
wanted "some time to think about this." He said there were plans for reorganization.
Respondent said his father (Fred) disliked unions very much. McHugh said he
would get in touch with Respondent early Monday morning (August 12) and arrange
a meeting.10 At no time did Respondent question the Union's claim to majority or
suggest that there was any question about what unit would be appropriate. That day,
and thereafter, the employees wore the union buttons, conspicuously displayed on the
outside of their clothing.11 Testimony by Respondent's father, Fred, that he didn't
know the employees were wearing union buttons on August 9, aside from being con-
tradicted by him, is rejected as false to the knowledge of Fred when he testified.12
I have no doubt that Respondent and his father, on August 9, knew all the employees,
including Potts, were wearing union buttons.13 I find they had no doubt the Union
5 Generally, in finding the facts in this matter, I have credited the testimony of
Walter W. McHugh, Keith D Potts, be B Justice, and Carol Helmick. Their testi-
mony was mutually consistent and I was favorably impressed by their respective de-
meanors. On the other hand, I generally have not credited the testimony of Ron
Kvarfordt and Fred Kvarfordt (Ron's father). Neither was candid in his testimony
and Fred, in particular, gave not only self-contradictory testimony but demonstrated by
his attempts to volunteer and his demeanor that he was more interested in serving
what he believed to be his son 's cause than in telling the truth. In various instances,
testimony of Ron Kvarfordt was specious rather than truthful, e.g., his claim that he
never refused to bargain with the Union, it being clear that although he perhaps never
"refused" the Union's request, in so many words, he did, in fact , at all material times,
refuse to recognize and bargain with the Union. Having observed Gail Kvarfordt (Ron's
wife ) when she testified and having considered her demeanor and the record as a whole,
I find that her recollection of events prior to August 12 was not as clear as she be-
lieved. I do not find any deliberate attempt on her part to testify falsely, but I find
her testimony, particularly as to dates and reasons for Respondent' s actions , to be un-
reliable. I have no substantial reason to believe she was a party to the business decisions
of her husband and father-in-law, although discussions may have taken place in her
presence . I find the testimony of Gilbert F. Howell to concern matters so remote and
to be so vague that it should be disregarded. In any event, I have not relied upon it.
O The parties stipulated and I find that Potts had such authority as to make him
a supervisor within the meaning of the Act during material times.
7 Whether Helmick was an office or plant clerical, or both, or otherwise had a com-
munity of interest with the four production employees will be discussed snfra.
8 Sakurada clearly indicated at this meeting that he wished the Union to represent him.
9 This was true
10 Obviously, a meeting to negotiate a contract
n Sakurada stopped wearing his button about August 15.
12 Respondent's testimony as to his knowledge of the wearing of union buttons was
not frank.
12 The entire record makes it plain that Fred's advise to Respondent in the conduct
of Respondent's business was given and acted upon. Further, Fred was about the
plant and consulting with Respondent at material times beginning within a time shortly
after McHugh left the shop on August 9.
FRED & SONS 0. K. RUBBER WELDERS 449
represented a majority of their employees as of August 9, and thereafter . There is
no substantial basis for a finding that either or both were in any way concerned about
the appropriateness of any bargaining unit in which there was such representation.
Such was never raised with the union prior to the hearing.
Early Monday morning, August 12, McHugh called Respondent on the phone.
McHugh asked for a meeting . Respondent said he "didn 't have time" and "I just
don't know when I can meet ." He didn 't know if he could meet the following week.
He suggested no date as being convenient for them or him to meet . McHugh said
he'd "have to take other means," obviously in order to bargain.
On the afternoon of August 12, within a few hours after the above refusal to bar-
gain, Respondent told Carol Helmick she was being terminated as of the end of the
week. She was told it was because Respondent 's wife had been wanting to come
back to work for some time. Respondent volunteered Helmick's termination was not
because of her union activities . Earlier that morning, Respondent had asked her if
she "had brought him a Union pin." As to the explanation to Helmick that Respond-
ent's wife had planned to come back to work, other testimony of Respondent's wit-
nesses (particularly that of Respondent) was to the effect that she planned to come
back to work when kindergarten started, the time being fixed as September or
August.'4 Respondent introduced no evidence as to when kindergarten started in
Pocatello, and there is no reason to believe it started as early as the week of August
12.15
Because of vagueness and contradictions among Respondent 's witnesses , and their
respective demeanors , I do not credit testimony of Respondent 's witnesses that the
decision to dispense with the apparently satisfactory services of Helmick, or of other
employees, as of the week of August 12, was made at any time before August 9.16
On the evening of August 12 Respondent told Justice and Jensen they were termi-
nated as of August 19.
Respondent told Justice he was being terminated because "the front-end department
(where Justice worked ) is losing us money" and added "this is not on account of
union activities ." Justice replied he had heard the department was doing better than
it had in the last 5 years.17
On the same evening, Respondent told Jensen he would have to be laid off because
business was declining . He was laid off.18 He also was told the layoff was not
because of his union activities.19
Thus, by the end of August 12, 50 percent of those who signed cards and wore
union buttons were advised of their termination by Respondent .20 This reduction in
force was made within 3 days of the initial request to bargain.
McHugh learned of the terminations on August 12 from employees. On Au-
gust 13 he mailed the following letter to Respondent:
Registered Mail
Return receipt requested
August 12, 1963
Subj: Request to Bargain
Mr. Ron Kvarfordt , Manager
Freds O.K. Rubber Welders
258 Yellowstone Avenue
Pocatello, Idaho
DEAR SIR: This will confirm our conversations of Friday August 9, 1963 and
Monday August 12, 1963 at which time we advised you that we have been
authorized to bargain for hours , wages and other conditions of employment for
14 August was clearly not a date based upon personal knowledge.
151 find no probative reason to believe kindergarten began before September.
11 Much of the testimony that the decision to terminate any employees was made be-
fore August 9 was given in response to leading questions of Respondent ' s counsel and
even then considerable uncertainty and lack of precision was displayed by Respondent's
witnesses.
17 He had been so told by Potts.
18 In view of my ultimate finding that Jensen was terminated or laid off in violation
of Section 8(a)(3), I leave it to the compliance stage of this proceeding for a deter-
mination as to whether Jensen received a proper offer of reinstatement or a recall
notice about September 27. I do not believe such issue was fully litigated at the
hearing herein.
19 No terminated employee raised the question of union activities but Respondent
pointedly raised the issue with each.
2U Helmick worked until August 15 . Justice and Jensen worked until August 19.
783-133-66--vol . 151-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kay Jensen, Joe Justice, Keith Potts, Shake [sic] Sakurada, Ken Williams and
Carol Helmick and requested that you recognize us as bargaining agent for these
employees.
We hereby renew our request that you recognize and bargain with us for
hours, wages, and other conditions of employment in a unit consisting of all
employees at Freds O.K. Rubber Welders located at 258 Yellowstone Avenue,
Pocatello, Idaho. Excluding supervisors as defined in the National Labor Rela-
tions Act as amended.
Very truly yours,
cc: E. J. Carrig
H. J. Gibson
(S) W. W. McHugh
W. W. McHUGH, Business Representative
International Association of Machinists
Gate City Mechanics Lodge #1933
P.O. Box 562
Pocatello, Idaho
The above letter was received by Respondent on August 14. Respondent has never
replied to it and has never recognized the Union.
Respondent and his father testified that the terminations, announced on August 12,
were the result of unprofitable business operations. In support of their testimony,
copies of Respondent's 1961 and 1962 U. S. Income Tax Returns were introduced
into evidence. I find them in no way helpful in determining whether there was an
economic reason for the terminations. Respondent admitted he didn't know whether
the business records he gave to his accountant for the purpose of preparing the
returns reflected a net profit. He admitted he had not examined his business records
for 1963. He knew he stood "profitwise" on August 12, 1963 "approximately the
same as we did in 1962." He testified he closed down the front-end department
(where Justice worked) in August, because it was losing money. Yet, he admitted
he discussed expanding the department with Justice in June or July. He had told his
employees before August 12, that he believed there would be an increase in business.21
In June or July he admittedly talked to Potts about buying a gauge for the front-end
department at a cost of about $400. Before August 12 he never mentioned closing
down the front-end department, to Potts, his so-called manager. Much of Respond-
ent's testimony as to the financial state of his operations was so vague and general as
to be entitled to little weight, even apart from the fact that Respondent impressed me
as a witness who was evasive and attempting not to tell the truth.22 On the basis of
this record, I find insufficient probative evidence to establish the alleged economic
reasons for the terminations were anything but pretexts.
(2) The appropriate unit
The following constitutes a unit of employees appropriate for collective bargaining
within the meaning of Section 9(b) of the Act: All employees of the Employer
(Respondent) at its place of business in Pocatello, Idaho, excluding guards, profes-
sional employees, and supervisors as defined in the Act.
I have already found Respondent, prior to its answer, never questioned the appro-
priateness of any unit the Union claimed to represent. I find no substantial evidence
that, either on August 9 or any other time, the Union claimed to represent a unit
which would include supervisors. While Potts was described as a member of the
Union on August 9 and in the August 12 letter requesting recognition, I find McHugh
stated, in substance, on August 9, that there was a question as to Potts' supervisory
status, and in the August 12 letter supervisors were clearly excluded from the unit
claimed by the Union to be appropriate and represented by it. Respondent now
claims Helmick should not be included in the unit because, allegedly, she was an office
clerical. I find she had at least some plant clerical duties. The other employees sent
their customers to her and she wrote up the sales tickets, etc., and she dealt with them
concerning their pay. I consider this to be an "appropriate situation" for including
this single office clerical with the four manual workers who clearly were not
supervisors.23
u Precisely when , is not clear.
In light of the fact that at the hearing, Respondent made books and/or records
available to General Counsel , I make no finding of an adverse presumption against
Respondent for failure to introduce his books and/or records into evidence to support
his testimony.
21 Standa, d Oil Company of California , 116 NLRB 1762.
FRED & SONS O. K. RUBBER WELDERS 451
At all material times, the Union represented a majority of the employees in an
appropriate unit whether Helmick be included or excluded . In a small shop like
Respondent's, in circumstances such as are here presented , I find no reason for not
finding, as I do, that the above -described unit is appropriate even if not the only or
most appropriate unit. It is certainly not repugnant to Board policy . It is abundantly
clear that Respondent ever raised the appropriateness of the unit or the Union's
majority status until it filed its answer.
C. Concluding findings
Since August 9, and before , the Union has represented a majority of the employees
in the unit found appropriate , supra, and has been the exclusive bargaining representa-
tive of all the employees in such unit . Although the Union has, since August 9,
requested Respondent to bargain with the Union as such exclusive bargaining repre-
sentative , Respondent has continuously, since August 9,24 refused to bargain with
the Union as requested.
Further, on August 12, when Respondent notified Kay Jensen , Joe Justice , and Carol
Helmick that they were being terminated , I find such notification was given because
they engaged in activities in behalf of the Union or in other protected concerted
activities and because Respondent wished to undermine the Union . This finding is
confirmed by the fact that Respondent 's reasons as given to the employees were mere
pretexts . The timing of the terminations further confirms this finding.
I have considered that Respondent , on August 12, unilaterally announced its deci-
sion to discontinue its clerical operations in the plant and to close down the front-end
department , such unilateral action being taken without notice of any kind to the
Union, the exclusive bargaining representative of Respondent 's employees to the
knowledge of Respondent . No evidence , including books and records, was produced
to establish whether Respondent saved or lost money by this action . It may be that
it is costing Respondent more to operate as it has since August 12 than it did before
it took its unilateral action . There is no substantial evidence that Respondent knew
on August 12 that it would make or lose money by its unilateral action. In this con-
nection see Town & Country Manufacturing Company, Inc., 136 NLRB 1022, 1025,
footnote 5. However , the General Counsel has not alleged this unilateral action
to be a violation of Section 8(a)(5), (3 ) or (1) of the Act. In view of the fact
that I am finding three separate violations of 8(a )( 3) and an outright refusal to
bargain in violation of 8(a ) ( 5) and since General Counsel has not alleged it, I make
no concluding findings as to a so-called Town & Country type violation.
With respect to Respondent 's violation of Section 8(a) (5) of the Act, I find
Respondent 's refusal to honor the Union's claims for recognition on August 9, 12, and
14 was solely for the purpose of gaining time to undermine the Union. There is no
other reasonable explanation in the record . There is no question of good-faith doubt
either as to appropriateness of the unit or the Union 's majority status involved herein.
In these circumstances , Respondent 's refusal to recognize and bargain with the Union
in order to dissipate its majority support among the employees as it attempted to do
by terminating Helmick, Jensen and Justice , is manifestly violative of Section 8(a) (5)
and (1 ) of the Act. N.L.R.B. v. Trimfit of California , Inc., 211 F. 2d 206, 209-210
^(C.A. 9); N.L.R.B. v. Scott & Scott, 245 F. 2d 926, 928 (C.A. 9).
Had the matter of the appropriateness of the unit been of serious concern to
Respondent , it easily could have asked the Union to clarify its request . Its failure so
to do and its simultaneous attempt to dissipate the Union 's majority status, demonstrate
that the unit issue is but an afterthought and played no part in the original refusal to
bargain . N.L.R.B. v. Clearfield Cheese Co., Inc., 213 F. 2d 70, 74 (C.A. 3).
Suggestions by Respondent at the hearing and in his brief that he had no obligation
to bargain because "None of the employees were ever admitted to membership in the
union and they were never issued membership cards," merit no more than the state-
ment that Respondent was obliged to bargain with the representative of the majority
of his employees in an appropriate unit, upon request. Neither membership cards nor
admission to membership are required to establish authorization for representation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of Respondent, described in section I, above, occurring in connection
with the unfair labor practices described in section III, above, have a close, intimate,
u The complaint alleges "commencing on or about August 12 .. . .. I find the
allegation sufficiently broad to Include August 9.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent deliberately refused to bargain with the Union, the
statutory bargaining representative of Respondent's employees, since August 9, 1963,
and more particularly at such time and on August 12 and 14, 1963, in violation of
Section 8(a) (5) and (1) of the Act, I shall recommend that Respondent be ordered
to bargain collectively with the Union, upon request, as the exclusive representative
of all of Respondent's employees in the unit which I have found to be appropriate and
embody any understanding reached in a signed agreement.
Having found that Respondent, on August 12, 1963, notified Carol Helmick, Fred
Jensen, and Joe Justice of their terminations effective within 4 to 7 days, in violation
of Section 8 (a) (3) and (1) of the Act, and so terminated them, I shall recommend
that Respondent offer each of the three employees immediate and full employment
at the same or substantially equivalent positions at which they would have been
employed had they not been discriminated against, without prejudice to their seniority
or any other rights or privileges, and make them whole for any loss of earnings they
may have suffered by reason of the discrimination against them, by paying each a
sum of money equal to the amount that each would normally have earned as wages
from the date of discrimination against him or her to the date of offers of reinstate-
ment less his or her net earnings.25 The back-pay obligations of Respondent to the
above-named employees shall include payment of interest at the rate of 6 percent to
be computed in the manner set forth in Isis Plumbing & heating Co., 138 NLRB 716.
Respondent's unfair labor practices, as found, strike at the heart of rights guaran-
teed employees by the Act. Unless appropriately restrained, there is reasonable
ground to anticipate that Respondent, in the future, will infringe upon other rights
guaranteed to employees. I shall, therefore, recommend an order requiring Respond-
ent to cease and desist from infringing in any manner upon the rights guaranteed
employees by Section 7 of the Act.
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. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The Board has jurisdiction of the subject matter of
this proceeding.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By failing and refusing on August 9, 1963, and thereafter, to recognize and
bargain with the Union as the exclusive bargaining representative of Respondent's
employees in the unit herein found appropriate, Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of Section 8(a)(1) and (5)
of the Act.
4. By discriminatorily terminating Helmick, Jensen, and Justice, to discourage
membership in the Union and engaging in other protected concerted activities, and
to undermine the Union, Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the entire record in this case , including the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the
following:
RECOMMENDED ORDER
Ron Kvarfordt, d/b/a Fred & Sons O.K. Rubber Welders, his agents, successors,
and 'ssigns, shall:
1 Cease and desist from:
(a) Refusing to bargain with the above named Union, upon request.
If, in the compliance stage of this proceeding it should be determined that Respond-
ent made a bona fide offer of reinstatement to Jensen on September 27, Respondent
need not make another such offer and its backpay obligation would cease as of that time
FRED & SONS O. K. RUBBER WELDERS 453
(b) Terminating or otherwise discriminating against his employees because of
,their union or other protected concerted activities or in order to undermine the
above-named Union or any other union.
(c) In any other manner interfering with , restraining , or coercing his employees
in the exercise of their rights to join or assist the above -named or any other union, or
otherwise engage in protected concerted activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Offer to reinstate Helmick, Jensen , and Justice to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privileges,
and make each whole in the manner described in "The Remedy " portion of this deci-
sion for any loss of earnings by reason of Respondent 's discrimination against him
or her.
(b) Bargain collectively with the above -named Union , upon request , as the exclu-
sive representative of all the employees in the above -described unit and if an under-
standing is reached, embody such understanding in a signed agreement. ,
(c) Post at its Pocatello, Idaho, plant copies of the notice attached and marked
"Appendix." 26 Copies of said notice, to be furnished by the Regional Director
Region 19 , shall, after being duly signed by a representative of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of receipt of this Decision what steps the Respondent has taken to comply
,therewith.27
21 In the event that this Recommended Order shall be adopted by the Board , the words
"a Decision and Order " shall be substituted for the words " the Recommended Order of
a Trial Examiner" In the notice . In the further event that the Board ' s Order is en-
forced 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."
^ 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 Respandent 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 we are posting this notice to inform our employees of the rights
guaranteed them in the National Labor Relations Act.
WE WILL OFFER Carol Helmick, Kay Jensen , and Joe Justice their former
jobs and pay Helmick for wages she has lost since August 15, 1963, and pay
Jensen and Justice for wages they have lost since August 19, 1963
All our employees have the right to join or assist Lodge No. 1933, Interna-
tional Association of Machinists, AFL-CIO, or any other union . Upon request,
we will bargain in good faith with Lodge No. 1933, International Association of
Machinists , AFL-CIO as the exclusive bargaining representative of all our
employees in the following described unit and if an understanding is reached,
embody such understanding in a signed agreement.
The unit which is appropriate includes all our employees at our place of
business in Pocatello , Idaho, excluding guards, professional employees, and
supervisors within the meaning of the Act.
WE WILL NOT terminate or otherwise discriminate against any of our employees
because of their activities in behalf of Lodge No. 1933, International Association
of Machinists , AFL-CIO, or any other union or because of other protected con-
certed activities or in order to undermine Lodge No. 1933, International Associa-
tion of Machinists or any other union.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist labor organizations , to bargain collectively through representatives of their
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing , and to engage in other concerted activities for the purpose of
collective bargaining or other material aid or protection , or to refrain from any
or all such activities.
RON KVARFORDT, d/b/a FRED & SONS O.K. RUBBER WELDERS,
Employer.
Dated------------------- By---------------------- ---------------------
(Representative ) (Title)
NOTE.-We will notify any of the above -named employees if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 327 Logan
Building, 500 Union Street , Seattle, Washington , Telephone No. 682-3300 , if they
have any questions concerning this notice or compliance with its provisions.
Frisch's Big Boy Ill-Mar , Inc. and Hotel , Motel , Cafeteria &
Restaurant Employees' and Bartenders Union , Local No. 58,.
AFL-CIO. Case No. 25-CA-f010. March 5, 1965
DECISION AND ORDER
Upon a supplemental charge duly filed on October 6, 1964, by
Hotel, Motel, Cafeteria & Restaurant Employees' and Bartenders
Union, Local No. 58, AFL-CIO (hereinafter called the Union),.
the General Counsel of the National Labor Relations Board, by
the Director for Region 25, issued a complaint and notice of hearing
on November 30, 1964, alleging that Frisch's Big Boy Ill-Mar, Inc.
(hereinafter called Respondent) had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
'Section 8(a) (1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charge, complaint,.
and notice of hearing, were duly served upon the Respondent.
The complaint alleged in substance that since on or about Septem-
ber 4, 1964, the Union has been certified as the exclusive represen-
tative for collective-bargaining purposes, of "all regular and all
regular part-time employees, at the Respondent's restaurant at
51 North Illinois Street, Indianapolis, Indiana, including cashiers,
exclusive of all office clerical employees, managers, assistant man-
agers, professional employees, guards, and supervisors as defined in
the Act"; and that on September 12 and 21, 1964, and at all times
thereafter Respondent has refused to bargain with the Union as
the exclusive representative of the employees in the above-described
unit. Respondent's answer admitted the complaint's allegations
relating to the Union's certification, the Union's request for bargain-
ing, and Respondent's refusal to bargain with the Union. Respond-
ent denied, however, that the Union is the exclusive representative
151 NLRB No. 48.