James C. Ellis

National Labor Relations Board - Board Decisions

Jan 22, 1953

102 N.L.R.B. 497 (N.L.R.B. 1953)

JAMES C. ELLIS 497
jthe Union ] to get in touch with [her] and tell [her] what was what" ; and
that she "understood" that in order to remain a member of the Union she
would "have to continue paying dues."
In view of the wide publicity accorded the union -shop requirement and Goldes'
own understanding of the situation as manifested by her testimony , I do not
find it possible to say that adequate ground has been advanced for her failure
to join the Union before the deadline . The Board has held that, unless excused
as a matter of law , the duty is upon an employee having notice of a valid union-
shop requirement to make reasonable effort to comply . Ferro Stamping Co., 93
NLRB 1459; Chisholm-Ryder Co., 94 NLRB No. 76; Standard Brands, Inc., 97
NLRB 737. It is found that Goldes made no such effort here.
Having failed to comply , Goldes' discharge was properly asked for by the
Union . Having no reasonable cause to believe that the Union 's request was
illegally motivated , the Company was legally bound under the circumstances to
discharge Goldes, Colgate-Palmolive-Peet Co., 338 U. S. 355; and it notified
her that it was doing so. The Union was under no obligation at that stage of
the proceedings to accept Goldes' tardy tender of dues.
On neither Goldes' nor Loew 's version , can Loew's statements to Goldes be in-
terpreted, in this state of circumstances , as a declaration that if Goldes had
been more amiable to the Union , her tender would have been accepted. That
some noncontingent employees might have been permitted to join the Union
after the December 3 deadline , does not establish the application of a different
or discriminatory policy as to Goldes. She also was given the opportunity to
join after December 3. The uncontested testimony of Loew is that no contingent
employee required to join the Union by December 15, was permitted to join after
December 17. In some cases tardy noncontingents were permitted to join within
several days or a week after request for their removal and some noncontingents
who pleaded financial difficulty were permitted to defer payment . There is no
,evidence , however, that any such dispensation was accorded any employee after
December 17.
It is consequently found the evidence does not establish unfair labor practices
by either the Company or the Union in connection with the discharge of Goldes.
[Recommendations omitted from publication in this volume.]
JAMES C. ELLIS, SOLE OWNER, D/BMA JAMES C. ELLIS (OIL PRODUC-
TION) and INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS,
LOCAL UNION No. 214, AFL. Case No. 9-CA-436. January 22,
1953
Decision and Order
On July 22, 1952, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and
the Respondent filed a supporting brief.
102 NLRB No. 52.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner.
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the General Counsel's exceptions, the Respondent's
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, James C. Ellis,
Sole Owner, d/b/a James C. Ellis (Oil Production), and his agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brother-
hood of Firemen and Oilers, Local No. 214, AFL, as the exclusive
representative of all his employees in the appropriate unit.
(b) Unilaterally granting wage increases to employees in the ap-
propriate unit without prior consultation with International Brother-
hood of Firemen and Oilers, Local 214, AFL, as the exclusive repre-
sentative of the employees in the appropriate unit.
(c) In any other manner interfering with the efforts of International
Brotherhood of Firemen and Oilers, Local No. 214, AFL, to bargain
collectively with the Respondent.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Firemen and Oilers, Local No. 214, AFL, as the exclusive
representative of all the employees in the appropriate unit, and, if
an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its office and warehouse at Owensboro, Kentucky, copies
of the notice attached hereto as Appendix A.3 Copies of the said
notice to be furnished by the Regional Director of the Ninth Region,
1 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 Herzog and
Members Styles and Peterson].
2 The Intermediate Report contains certain typographical or inadvertent errors, none
of which affects the Trial Examiner 's ultimate findings or our concurrence therein. These
errors are corrected as follows : ( 1) the citation for Gagnon Plating and Manufacturing
Company should be 97 NLRB 104; ( 2) the Union has been the exclusive representative of
all the employees in the unit since March 27, 1947, not 1957 as stated in the Intermediate
Report; ( 3) by granting a unilateral wage increase and refusing to enter into a written
agreement embodying the terms agreed upon by the parties, the Respondent violated not
merely Section 8 (a) (1) of the Act as found in one portion of the Report but, also violated
Section 8 ( a) (5).
3 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words , "Pursuant to a Decision and Order ," the words,
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
JAMES C. ELLIS 499
shall after being duly signed by James C. Ellis, be posted by him
immediately upon receipt thereof and be maintained by him for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by said James C. Ellis to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Ninth Region, Cincinnati,
Ohio, in writing within ten (10) days from the date of this Order
what steps he has taken to comply therewith.
Appendix A
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, I hereby notify my employees that:
I WILL NOT unilaterally grant wage increases to the employees
in the bargaining unit described below without first consulting
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, LOCAL
No. 214, AFL, as the exclusive bargaining representative.
I wiLL bargain collectively, upon request, with the above-named
union, as the exclusive representative of all the employees in the
bargaining unit described below with respect to rates of pay,
wages, hours of employment, or other conditions of employment,
and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All employees of the Respondent [James C. Ellis] engaged
in the production of oil in the Respondent's Kentucky opera-
tions, but excluding office and clerical employes, technical
employees, drillers and tool dressers, administrative em-
ployees, technical employees, district foremen, all guards,
professional employees, and supervisors, as defined in the
Act.
I WILL NOT in any other manner interfere with the efforts of
the above-named union to bargain collectively with me, or refuse
to bargain collectively with said union as the exclusive repre-
sentative of the employees in the bargaining unit set forth above.
JAMES C. ELLis, Sole owner, b/b/a
JAMES C. ELLIs, (Oil Production)
Employer.
By ------------------------------------
(Representative) (Title)
Dated --------------
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed by International Brotherhood of Firemen and Oilers,
Local Union No. 214, AFL, herein called the Union, the General Counsel of
the National Labor Relations Board' by the Regional Director for the Ninth
Region ( Cincinnati , Ohio), issued a complaint dated September 4, 1951, against
James C. Ellis , Sole Owner , d/b/a James C. Ellis ( Oil Production ) of Owensboro,
Kentucky , herein called the Respondent , alleging that Respondent has engaged
in and is engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (5) of the Labor Management Relations Act, 61
Stat. 136, herein called the Act. Copies of the Complaint , with copies of the
charges and notice of hearing were duly served upon the Respondent and the
Union.
With respect to the unfair labor practices the complaint alleged in substance
that from on or about June 5, 1951 , and thereafter , the Respondent refused to
bargain collectively with the Union , as statutory representative by the Respond-
ent's employees , by unilaterally announcing and granting a wage increase to the
employees in derogation of the right of the Union to bargain concerning the
wage increases and by thereafter refusing on or about June 11, 1951, to enter
into a written agreement incorporating the results attained by negotiations.
Thereafter the Respondent duly filed its answer denying in effect that it was
engaged in commerce and also denying that it had engaged in any unfair labor
practices.
Before the hearing, George Downing, a Trial Examiner for the Board , denied
a preliminary written motion filed by the Respondent to dismiss the complaint
because the allegations therein did not constitute a cause of action.
Pursuant to notice, a hearing was held on October 15, 16, and November 13
and 14 , 1951, at Owensboro, Kentucky , before Henry J. Kent, the undersigned
Trial Examiner duly designated by the Chief Trial Examiner . The General
Counsel and the Respondent were represented by counsel and the Union by an
official representative . Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was afforded
all parties.
When the General Counsel rested his case-in -chief the Respondent moved to
dismiss the complaint . The motion was denied subject to renewal at the close
of the case.
At the close of the hearing, the parties waived oral argument and were advised
that they might file briefs within 20 days. Briefs were thereafter duly filed with
the undersigned by the Respondent and the General Counsel.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
James C. Ellis, an individual, operating in the State of Kentucky under the
name of James C. Ellis (Oil Production) is engaged in producing crude petroleum
'The General Counsel and his representative in this case are referred to herein as the
General Counsel ; the National Labor Relations Board is referred to as the Board.
JAMES C. ELLIS 501
from land in the State of Kentucky owned by Ellis or leased by him from third
parties'
During the month of September 1951, the Producers Pipeline Company (a
subsidiary of the Louisville Refining Company purchased crude oil at the wells
from Ellis valued at $89,649' This pipeline company purchases about 90 percent
of all the oil produced by Ellis in Kentucky and thereafter transports the said
oil by means of its pipeline, to Owensboro, Kentucky, where it is transported by
barges to the Louisville, Kentucky, refinery of the Louisville Refining Company
for further processing.
The record further shows, according to the credited and undenied testimony of
Yocum, the auditor for the refinery, that from January 1, 1951, to September 30,
1951, the Louisville Refining Company sold and shipped refined petroleum prod-
ucts valued at $4,176,921.31 to customers residing or doing business outside the
State of Kentucky.
The Board has heretofore found that this refining company Is engaged in
commerce within the meaning of the Act.` Additionally, the Board has also
found that the Kentucky operations of Ellis affect commerce within the meaning
of the Act,' and since this decision there has been no substantial changes in the
Kentucky operations conducted by Ellis. Accordingly, I find, contrary to the
contention of the Respondent , that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Firemen and Oilers, Local No. 214, AFL, 1s a
labor organization admitting employees of the Respondent to membership.
M. THE UNFAIR LABOR PRACTICES
A. Sequence of material events
1. Certification of the Union
Upon a petition duly filed by the Union followed by a hearing thereon con-
ducted by the Board and an election thereafter held pursuant to the Board's
direction,' the Board on March 27 , 1947, pursuant to Section 9 (a) of the Act
certified the Union as the statutory representative of the Respondent's
employees ' for an appropriate unit described as follows :
All production and maintenance employees of the [Respondent] engaged
in the production of oil in the fields adjacent to Owensboro, Kentucky, ex-
cluding administrative, clerical and technical employees, district foremen
and all supervisory employees with authority to hire, promote, discharge or
otherwise effect changes in the status of employees, or effectively recommend
such action.
2 The record shows that Ellis is also engaged in oil production in the States of Indiana
and Illinois , but according to the complaint these operations are not involved in this case-
3 According to the credited and uncontradicted testimony of C. D. Yocum, auditor for
the Louisville Refining Company and Producers Pipeline Company, this figure fairly
represents the approximate monthly value of oil purchased from Ellis by the Pipeline
Company in the State of Kentucky, during the period January 1 to September 30, 1951.
* N. L. R. B . v. Louisville Refining Co., 102 F. 2d 678 ( C. A. 6), cert . den. 308 U. S. 568.
6 James C. Ellis, d/b/a James C. Ellis (Oil Production), 72 NLRB 474.
672 NLRB 474, Case No. 11-R-1229.
4 The tally of ballots shows that there were 72 eligible voters in the unit ; that 58
valid ballots were cast at the election, 45 in favor of the Union and 13 votes against. No
objections to the conduct of the election were thereafter filed.
250983-vol . 102-53-33
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Bargaining relations following the certification
It is undisputed that soon after the above certification the Union and the
Respondent met and negotiated a series of collective-bargaining agreements.
On or about June 14, 1947, the parties signed an agreement for a term of 1
year which, among other things contained a union-shop provision, a dues checkoff
clause, and an automatic extension clause providing for yearly renewals absent
the service of a termination notice by either party prior to any anniversary date
of the agreement.
The unit described in this agreement reads as follows :
All operating and maintenance employees of the company, except for office
and clerical employees, drillers and tool dressers and other undesignated
part-time employees and supervisors with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action.
It is noted that the exclusion of drillers and tool dressers who would cus-
tomarily be considered as falling within the production and maintenance unit
originally certified by the Board is a deviation from the unit certified by the
Board.
Harold Colvin, the international representative of the Union, who negotiated
the agreement for the Union credibly testified without denial that the well
drillers and tool dressers were excluded from the unit by mutual agreement
because they were merely transient employees who seldom worked for the Re-
spondent over a period of 2 or 3 months while digging a new well and thereafter
ceased this employment to seek work with other employers, and that they have
no community of interest with regular full-time production and maintenance
employees. The Respondent offered no evidence to show that the above unit
was inappropriate, and in effect conceded it was appropriate by entering into the
agreement.
Accordingly, I am of the opinion and find that the unit designated in the agree-
ment constitutes an appropriate bargaining unit within the meaning of Section
9 (b) of the Act, for the Respondent's Kentucky employees in the above-described
unit.
The parties signed a second agreement covering employees in the same unit on
June 14, 1948, substantially similar in respect to the terms and provisions in
the previous contract except for minor changes. This agreement also contained
an automatic renewal clause providing for yearly extensions absent the service
of a 60-day notice of termination by either of the parties.
Thereafter on June 14, 1949, the parties entered into a third and so-called sup-
plemental agreement (in evidence) extending the term of the 1948 agreement
for another year. This agreement also contained an automatic renewal clause
extending the term from year to year absent the service of a 60-day termination
clause prior to any anniversary date. No notice of termination was served
prior to June 14, 1950. Accordingly, this agreement was extended to June 14,
1951.
3. The refusal to bargain
a. The issue
The complaint in substance alleges and the Respondent denies that the Re-
spondent refused to bargain with the Union on and after June 5, 1951, for the
employees in an appropriate unit described as :
All employees of the Respondent, but excluding office and clerical em-
ployees, drillers and tool dressers, administrative employees, technical em-
JAMES C. ELLIS 503
ployees, district foremen, and all guards , professional employees, and super-
visors, 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!
b. The Union's requests to bargain
It is undisputed that Colvin, an international representative of the Union,
sent a letter to Ellis on April 9, 1951, requesting Ellis to set a date for the com-
mencement of negotiations for another agreement.° The Respondent failed to
acknowledge or reply to this letter.
Following up the Union's earlier request for a bargaining conference, Colvin,
on April 28, 1951, sent the following telegram to Ellis :
Notified you April 9 of anniversary date of contract between you and Fire-
men and Oilers. Asked you to designate date for commencement of negotia-
tions. Received no reply. Have repeatedly attempted to contact you to
set date for meeting. Suggest negotiations commence Friday, June 1, at
1: 30 p. m. Please wire me immediately if suggested date acceptable.
According to the record, Ellis failed to reply to Colvin's second request to
begin negotiations, made on April 28, 1951, until May 29, 1951, when Ellis in a
telegram sent to Colvin stated :
Retell date acceptable June 1st, 1: 30 p. m. My office.
B. The bargaining conferences
It is undisputed that representatives of the Respondent and the Union met
for the first 1951 bargaining conference in Ellis' office on the afternoon of June
1, 1951; that Colvin, the international representative of the Union, and employees
Park, Reed, and Cole attended it as representatives of the Union; that Ellis and
his attorney, E. B. Anderson, were present on behalf of the Respondent; and
that Colvin, on behalf of the Union, submitted to Ellis the following proposals :
(1) A 20-cent per hour wage increase
(2) Overtime pay for holidays worked
(3) Portal-to-portal pay for roustabouts
(4) Blue Cross Hospitalization
(5) Renewal of the old agreement, subject to the above-listed modifications.
It is also undisputed that after a short discussion regarding the various pro-
posals Ellis said he would consider them and that the conference ended with an
agreement to meet again on June 5.
The second meeting on June 5 was attended by the same representatives for
the respective parties and also by Riley Sturgeon, a State representative for
the Union. The meeting lasted about 1 hour. The parties are in substantial
agreement that the proposals previously submitted by the Union were briefly
$ As aforementioned, Ellis was also engaged in oil production operations in the States
of Illinois and Indiana as well as in Kentucky The use of the term "all employees" except
for the excluded categories of employees in the unit alleged to be appropriate is unduly
broad, for a realistic consideration of all allegations in the complaint confines the scope
of the bargaining field to the Kentucky operations of Ellis as did the original certification
of the unit found appropriate by the Board which limits the bargaining field to the
Kentucky operations of Ellis. Moreover, no evidence was offered at the hearing indicating
that the Union claimed to represent any of the Respondent's employees in the States of
Illinois and Indiana , or that it was seeking to bargain for such employees.
° This letter ( in evidence ) in substance states that the supplemental agreement signed
on June 14, 1949, was automatically renewed on June 14, 1950, until June 14, 1951,' that
the Union is herewith terminating the said agreement and requests the Respondent to set
a date for negotiations in order that another agreement may be negotiated before June 14,
1951, the expiration date of the current agreement therefor.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed , but no agreement was reached concerning any of them because Ellis
asserted he had not had an opportunity to discuss the proposals with his business
associates and supervisors . According to Colvin's credited and undenied testi-
mony, he asserted in substance to Ellis that the latter knew the second meeting
was to be held on this day, and that Ellis should have arranged to be ready to
bargain effectively regarding the proposals, whereupon Ellis then asserted that
he, Ellis, had other matters to attend to in addition to negotiating a contract
with the Union, and further remarked in substance that if Colvin was not in the
picture he, Ellis, could get along more satisfactorily with Respondent's
employees 10
Following this interchange between Colvin and Ellis the meeting ended with
an understanding that the parties would meet again at Ellis' office on June 11.
Meanwhile, according to Ellis, he decided shortly after June 5 to grant a wage
increase to the employees, and told his production superintendent, Cooper, to tell
the employees that Ellis was granting them a wage increase of 10 cents an hour.
Cooper when called to testify by the Respondent also testified, among other
things, that several days before the June 11 meeting, which Cooper attended,
that he and Ellis had engaged in the following conversation :
"I [Ellis] am going to give the men a ten cent raise." [Cooper] then
said "Well, will that go back to June 1st?" and Ellis replied , "That's right."
This wage increase was given effective as of June 1 and was reflected in the
employees' pay checks received on June 15.
The third bargaining meeting was held on the afternoon of June 11, 1951.
Colvin, with employees Cole and Reed, was present on behalf of the Union;
and Ellis, E. B. Anderson, F. M. Ashby, and Respondent's Production Super-
intendent Emmett Cooper were present as Respondent's representatives. Accord-
ing to Colvin's credited testimony he had been informed by one of the employees
of the wage increase previously announced by the Respondent just before going
into the meeting.
After a discussion at the meeting regarding the Union's overtime holiday pay
proposal, the Respondent agreed with Colvin's contention that the provision
in the existing agreement complied in substance with the provisions of the
Federal wage and hour statutes, whereupon Ellis stated that he wanted to
comply with the law and Colvin's interpretation of the agreement and then
said he would pay the men all wages legally due them, thus in effect, disposing
of this issue.
It is undisputed that the parties again briefly discussed the Union's hospital-
ization insurance plan and that the proposal was rejected by the Respondent n
It is likewise undisputed that the Respondent also rejected the Union's pro-
posal for portal-to-portal pay for roustabouts at this meeting but agreed to con-
tinue the practice of paying these employees for travel time from the Respond-
ent's warehouse, the usual reporting point, to the current job site and transpor-
tation both ways as provided in the existing agreement.
10 Sturgeon and employee Riley Cole present as union representatives in substance cor-
roborated Colvin's above testimony, Sturgeon credibly testified without denial that Ellis
asserted "I can get along with them [ the employees ] ; I Just can't get along with you."
Cole testified without contradiction that Ellis in substance asserted at this meeting that
he, Ellis, could get along with the men if Colvin was not in the picture , whereupon Colvin
replied, "I am only the spokesman for the men" and then in substance stated that he,
Colvin , would take care of the men when the right time came, and that the Union wanted
to enter into a new agreement before the current one expired on June 14.
11 Ashby, a witness called by the Respondent , testified in substance that Ellis stated that
if the employees desired such insurance they should pay for it themselves and that he,
Ashby, concurred with this position taken by Ellis.
JAMES C. ELLIS 505
Colvin credibly testified in substance that when he pressed the Union's proposal
for a wage increase at the June 11 meeting, Ellis asserted that the Respondent
had already granted the employees a raise of 10 cents an hour ; that Colvin then
offered, on behalf of the Union, to accept this increase if the Respondent would
enter into a new contract for another year embodying all other provisions of the
existing agreement and also including a reopening clause concerning wages in
6 months ; that the Respondent rejected the proposal in regard to the wage re-
opening clause , whereupon Colvin proposed that they agree on a full year's term
without the reopening clause with a wage increase of 15 cents an hour ; that the
union representatives then temporarily withdrew from the conference room
to give the Respondent an opportunity to consider the alternative proposals made
by the Union ; and that when the union representatives returned to the meeting,
Ellis stated in substance that he would grant a 10%-cent per hour wage increase
and comply with all the other provisions of the old agreement, but would sign
no contract with the Union. Colvin further credibly testified that he told Ellis
the Union would accept the counterproposal if the Respondent would draft and
sign a letter containing this last counterproposal of the Respondent, whereupon
after Ellis refused to enter into any written commitment, he, Colvin, told Ellis,
in substance, that the latter's refusal to sign a writing confirming such an agree-
ment upon request was an unfair labor practice for which the Respondent could
be prosecuted by the Board."
Following the refusal of Ellis to confirm the agreement consummated in writ-
ing, the June 11 meeting ended.
Thereafter, another bargaining meeting between the Respondent's and the
Union's representatives was held on July 9, 1951. Earlier and following the
June 5 meeting at which Ellis had asserted that Colvin exercised a disruptive
influence on the employees after Colvin had accused Ellis of stalling tactics
in failing to be ready to bargain after numerous delays, Colvin on June 6, 1951,
by letter addressed to "Federal Mediation and Conciliation Service" requested
that agency to assist in settling an alleged dispute that might lead to a strike.
It is undisputed that Garth Ferguson, a Federal conciliator, attended the
July 9, 1951, meeting and that Ferguson after listening to the recitals regarding
the issues resolved at the prior negotiation conference, advised the Respondent
that it was obligated to sign an agreement covering the provisions of the pro-
posed agreement that had been agreed upon, but that Elilis on behalf of the
Respondent, refused to enter into a written agreement with the Union regarding
a new contract for the asserted reason that Colvin, the Union's representative, had
threatened to sue Ellis at the June 11 meeting. No further negotiations have
since been held by and between the parties.
22 Colvin's above testimony is corroborated by the admission made by Ellis in his sworn
answer to the allegation of the complaint set forth in material part as follows :
. . . That this respondent advised all present [at the June 11 , 1951 , meeting] that
he intended to abide by the terms of the contract in force until June 15 , 1951, and
of which all parties there present were cognizant and in addition to the provisions of
said contract that this respondent desired to increase voluntarily [ emphasis supplied]i
the wages of all his employees 10'¢ per hour. At which point in the proceedings
Colvin demanded that the respondent give him [ Colvin ] writing to that effect, when
the said Colvin well knew that the respondent intended to carry out his contract and
did in fact intend to pay his employees the additional 10'# per hour wages on June
15th, 1951 , the latter being the let payday after the date of these negotiations. That
before the respondent could make reply to Colvin 's demand that Colvin then and there
said, "you will give me such a writing or I will have you prosecuted ." And by such
statement the said Colvin attempted to intimidate the respondent and following such
statement the said Colvin terminated the negotiations by walking out of same and
thereafter and now is attempting to intimidate this respondent by bringing this matter
to the attention of the National Labor Relations Board when in fact there is no
difference of opinion between this respondent , respondent's employees and the Union.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Concluding findings
Upon the basis of the foregoing findings and the entire record, the issue is
whether the Respondent refused to bargain in good faith with the Union by
(1) granting a unilateral wage increase to the employees on or about June 7
;pending bargaining negotiations absent bargaining with the Union concerning
the wage increase; and (2) by refusing to sign a collective-bargaining agreement
after request to do so by the Union, including the terms and provisions agreed
on by the parties.
As a defense, the Respondent in effect argued: (1) The Respondent is not
engaged in commerce within the meaning of the Act; (2) that it did not illegally
grant a wage increase to the employees without bargaining with the Union ;
(3) that because the Union failed to submit a written contract for signature
embodying the terms agreed on, there was no failure to bargain within the
meaning of the Act ; and (4) that the Union accepted the proffered wage increase
subject to a condition that there should be no contract entered into between
the parties 13
On the basis of the foregoing findings of fact and the entire record, the under-
signed concludes and finds that the allegations of the complaint have been sus-
tained by a preponderance of the substantial and credible evidence adduced at
the hearing, except that he also concludes and finds that the unit alleged in the
complaint is too broad and general to support a conclusion that it is an appro-
priate unit in view of the allegations in the complaint and the evidence adduced.
The record convincingly shows, that at all times since April 9, 1951, the Re-
spondent sought to evade its obligation to bargain in good faith. It not only
failed and refused to reply to the Union's letter of April 9, 1951, containing its
first request to bargain concerning another agreement, but it also failed to
reply to the Union's telegram dated April 28, 1951, containing the second request
to bargain until May 29, 1951, or about 2 weeks before the expiration date of
the current existing collective-bargaining agreement.
The first two bargaining meetings held on June 1 and June 5, 1951, were fruit-
less because the Respondent asserted it was not ready to discuss the Union's
proposals despite the fact that it had been aware for nearly 2 months that such
meetings must be held, and that a new contract should be negotiated before June
14, 1951.
At the second meeting held on June 5, the Respondent plainly indicated
its unwillingness to bargain with the Union as the exclusive representative of
its employees when it asserted that if Colvin, the international representative
of the Union, would withdraw from the meetings the Respondent could readily
reach an agreement with its employees.
Respondent's antipathy for bargaining with the Union is further shown by
its unilateral announcement to the employees that it was granting them a 10-cent
per hour wage increase made a few days before the third bargaining meeting
was scheduled to be held on June 11, 1951, thus tending to destroy the Union's
effectiveness as a bargaining agent 14
Furthermore, when the parties had reached an agreement on June 11, 1951,
to continue the existing contract in force for another year with a wage increase
13 In addition to the defenses asserted above, the Respondent also submitted certain
proposed findings of fact and conclusions of law based on the defenses asserted above. The
undersigned has not adopted the said findings of fact or conclusions of law because they
are contrary to his findings and conclusions herein made , based upon due consideration
of the entire record.
14 Gagnon Plating and Manufacturing Company, 97 NLRB 104.
JAMES C. ELLIS 507
of 101/2 cents an hour for the employees covered by the agreement , the Respond-
ent refused to enter into a written commitment requested by the Union evidencing
this agreement , a clear violation of the Respondent 's refusal to bargain in good
faith.7'
As noted above , I am of the opinion that the unit alleged in the complaint is
too broad although not challenged at the hearing by the Respondent . The com-
plaint alleges:
All employees of the Respondent, but excluding office and clerical em-
ployees, drillers and tool dressers , administrative employees , technical
employees , district foremen , and all guards , professional employees, and
supervisors , as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining.
The record discloses that the Respondent is engaged in oil -production oper-
ations in the States of Illinois and Indiana as well as in Kentucky . A realistic
consideration of all the allegations in the complaint and the entire record
convinces me that only the Kentucky operations of the Respondent are involved
in this proceeding . Furthermore , there is no evidence in the record that the
Union represents any of the employees of the Respondent in Illinois and Indiana
or that it presently claims to represent them.
Accordingly , I conclude and find that :
All employees of the Respondent engaged in the production of oil in the Re-
spondent 's Kentucky operations , but excluding office and clerical employees,
drillers and tool dressers , administrative employees , technical employees, dis-
trict foremen , all guards , 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.
On all of the foregoing and the entire record , I conclude and find that by grant-
ing a unilateral wage increase to its employees in the above-found appropriate
bargaining unit, on or about June 7, 1951 , without consulting with the Union
regarding the wage increase when bargaining negotiations were pending, and by
refusing to enter into a written agreement embodying the terms of a collective
bargaining agreement reached by the parties , the Respondent has failed to
bargain in good faith with the Union as the exclusive representative of its
employees in an appropriate unit , thus also interfering with its employees in
the exercise of their rights guaranteed in Section 7 of the Act, and in violation
of Section 8 (a) (1) thereof.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
is Dixie Manufacturing Company, Inc., T9 NLRB 645 ; Station KDRO, 93 NLRB 1440;
Hillsboro Cotton Mills, 80 NLRB 1107; Atlanta Broadcasting Company, 90 NLRB 808.
le Although the refusal of the Respondent to reply to the Union's letter of April 9, 1951,
requesting the Respondent to set a date for beginning bargaining negotiations also con-
stitutes a refusal to bargain , no specific finding is herein made because the complaint falls
to allege it. The Respondent's entire course of conduct in its bargaining relations with
the Union at all times displayed a fixed intention merely to preserve the appearance of
bargaining, while avoiding any actual negotiations in good faith or effort to reach
a mutually satisfactorily agreement.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices, it will be recommended that the Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has refused to bargain collectively with the
Union as the exclusive representative of its employees in an appropriate unit,
the undersigned will recommend that the Respondent, upon request, bargain
collectively with the Union.
Because of the basis of the Respondent's refusal to bargain, as indicated in
the facts found, and because of the absence of any evidence that danger of other
unfair labor practices is to be anticipated from the Respondent's conduct in the
past, the undersigned will not recommend that the Respondent cease and desist
from the commission of other unfair labor practices. Nevertheless, in order to
effectuate the policies of the Act, the undersigned will recommend that the
Respondent cease and desist from the unfair labor practices found and from in
any manner interfering with the efforts of the Union to bargain collectively
with the Respondent 34
Upon the basis of the above findings, and upon the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Firemen and Oilers, Local No. 214, AFL, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. All employees of the Respondent engaged in the production of oil in the
Respondent's Kentucky operations but excluding office and clerical employees,
drillers and tool dressers, administrative employees, technical employees, dis-
trict foremen, all guards, 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.
3. International Brotherhood of Firemen and Oilers, Local No. 214, AFL, was
on March 27, 1947, and at all times thereafter has been, the exclusive representa-
tive of all employees in the aforesaid unit for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on June 5, 7, and 11, 1951, and on July 13, 1951, and at all times
thereafter, to bargain collectively with International Brotherhood of Firemen
and Oilers, Local No. 214, AFL, as the exclusive representative of all his em-
ployees in an appropriate unit , the Respondent has engaged and is engaging in
unfair labor practices, within the meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain, and by granting a unilateral wage
increase to the employees without bargaining with the Union, the Respondent
has interfered with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby engaged in 9nd is
engaging in unfair labor practices , within the meaning of Section 8 (a) (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
11 N. L. R. B. v. Express PubUshing Company, 312 U. S. 426.
THE TIMKEN-DETROIT AXLE COMPANY
Appendix A
NOTICE TO ALL EMPLOYEES
509
Pursuant to the Recommendations of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the Labor Man-
agement Relations Act, we hereby notify our employees that :
I WILL bargain collectively, upon request , with INTERNATIONAL BROTHER-
HOOD OF FIREMEN AND OILERS, LOCAL No. 214, AFL, as the exclusive repre-
sentative of all the employees in the bargaining unit described below with
respect to rates of pay , wages, hours of employment , or other conditions of
employment , and, if an understanding is reached , embody such understand-
ing in a signed agreement . The bargaining unit is :
All employees. of the Respondent [James C. Ellis] engaged in the pro-
duction of oil in the Respondent's Kentucky operations, but excluding
office and clerical employees , technical employees , drillers and tool
dressers, administrative employees, technical employees, district fore-
men, all guards, professional employees , and supervisors , as defined in
the Act.
I WILL NOT in any manner interfere with the efforts of the above-named
union to bargain with me, or refuse to bargain collectively with said union
as the exclusive representative of the employees in the bargaining unit set
forth above.
JAMES C. ELLIS , sole owner, d/b]
JAMES C. ELLIS ( Oil Production)
Employer
By --------------------------------------
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.
THE TIMKEN-DETROIT AxLE COMPANY ( OHIO AXLE & GEAR DIVISION
and INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL, PETITIONER.
Case No. 8-RC-1559. January 22,190
Decision and Order
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was held on March 20, 1952, under the
direction and supervision of the Regional Director for the Eighth
Region , among the production and maintenance employees at the
Employer's plant in Newark, Ohio. Upon completion of the election,
the Regional Director issued and duly served upon the parties a tally
of ballots which revealed that of approximately 532 eligible voters,
517 cast valid ballots, of which 225 were in favor of the Petitioner,
249 were in favor of the Intervenor, International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
UAW-CIO, 39 were in favor of another labor organization , and there
were 2 challenged ballots . None of the organizations having received
102 NLRB No. 59.