Justus Co., Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 422 (N.L.R.B. 1972)

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Justus Company , Inc. and Warehouse and Produce IT IS FURTHER ORDERED that the election held on
Workers Local Union No. 599 , International Broth- June 17, 1971, in Case 19-RC-5896, is hereby set
erhood of Teamsters, Chauffeurs, Warehousemen & aside and that the petition filed in that case is hereby
Helpers of America and Wesley Barr, Alfred Barr dismissed.
and Larry Tour, acting as Employees Committee of
Justus Company, Inc., Party in Interest . Cases 19-
CA-5345 and 19-RC-5896
September 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On May 10, 1972, Administrative Law Judge'
Herman Corenman issued the Attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions to the Decision and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions ' of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Justus Company, Inc.,
Tacoma, Washington, its officers , agents , successors,
and assigns , shall take the action set forth in the Ad-
ministrative Law Judge's recommended Order, with
the following modifications:
Substitute the following for paragraph 1(b):
"(b) Coercively interrogating employees con-
cerning union meetings and union activities; coercive-
ly polling employees concerning their union sen-
timents; making statements giving employees the
impression that their union meetings were under sur-
veillance; threatening employees that if they select the
Union as their representative plant discipline would
be tightened, previous privileges revoked, coffee-
breaks shortened, employees discharged for minor
rule violations and tardiness, and the plant closed or
moved to distant locations; and promising insurance
and other fringe benefit payments if the employees
would abandon the Union."
' The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 While we find that Respondent's temporarily , withholding of $25 for ficti-
tious union dues and fees from each employee 's paycheck on May 14 inter-
fered with the election , we find it unnecessary , in light of Respondent's
flagrant 8 (a)(1) violations herein , to pass on whether such conduct also
violates Section 8(a)(1) of the Act. Yazoo Valley Electric Power Association,
163 NLRB 777, In 2.
3 We agree with the Administrative Law Judge that Respondent 's conduct
preceding the election has undermined the Union 's majority and interfered
with the election process. Respondent 's threats of discharge for minor work
rule violations and threats of plant closure were made in the company lunch-
room to all employees . The unlawful reference to a possible closedown was
followed by attempts by several employees to revoke their union authoriza-
tion cards In addition , Respondent interrogated employees , polled employ-
ees concerning their union sentiment without safeguards of secrecy, made
promises of benefits , and attempted to organize employees into a company-
dommated union In our opinion, the effects of these broadly disseminated
unfair labor practices are not likely to be redressed , through application of
traditional Board remedies , in a fashion providing reasonable assurance that
a fair election could be conducted NLRB v Gissel Packing Company, Inc.,
395 U.S . 575, 615-616 . For this reason , we believe that a remedial bargaining
order, as requested by the complaint , is warranted in this case , even in the
absence of an 8(a)(5) allegation Mallow Plating Works, Inc., 193 NLRB No.
96.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner : A hearing in the
above-entitled proceeding was held before the undersigned
TrialrExaminer on January 4, 5, 6, and 7, 1972, at Tacoma,
Washington, on 'a complaint of the General Counsel against
Justus Company, Inc., herein called the Respondent. The
complaint , issued October 29, 1971, pursuant to charges and
amended charges filed by the Union July 1 and September
2, 1971, alleges violations of Section 8(a)(1), (2), and (3) of
the Act and seeks a bargaining order despite the absence of
an 8(a)(5) allegation.
Under date of October 29, 1971, the Regional Director
for Region 19 of the Board consolidated for hearing with the
unfair labor practice case the issues presented by the
Union's objections to conduct affecting the results of the
election held on June 17, 1971, in Case 19-RC-5896. The
aforesaid objections are in some respects similar to the alle-
gations of violations contained in the complaint.
All parties were afforded full opportunity to appear, to
introduce evidence , to examine and cross -examine witness-
es and to argue orally on the record. Briefs, which have been
carefully considered, were filed by the General Counsel and
the Respondent. Upon the entire record, and from my ob-
servation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The pleadings establish, and I find, that the Respon-
dent, Justus Company, Inc., is a Washington corporation
199 NLRB No. 51
JUSTUS COMPANY
with an office and place of business at Tacoma, Washing-
ton, where it is engaged in the manufacture and sale of
precut cedar buildings. During the past year, which is repre-
sentative of its annual operations, generally, Respondent, in
the course and conduct of its business operations, pur-
chased and caused to be transported and delivered to its
Tacoma, Washington, place of business, directly from
points outside the State of Washington, goods and materials
valued in excess of $50,000, and during the same period
received m excess of $50,000 from sales to customers locat-
ed outside the State of Washington. I find that the Respon-
dent at all times material herein has been, and is, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that Warehouse
and Produce Workers Local Union No. 599, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, is, and has
been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Union Organizational Drive
The union began organizing the Respondent's employ-
ees in the first week of May 1971 at the behest of
Respondent's employee Charles Ted Gilmore. Robert Pa-
volka, the Union's secretary, handed a supply of union au-
thorization cards to Gilmore, who volunteered to solicit
employee signatures. Pavolka conducted a union organiza-
tional meeting at the umon hall in Tacoma on the evening
of May 5, 1971, which was attended by a number of
Respondent's employees. At this meeting, employee Charles
Richardson volunteered to help in the Union's organiza-
tional efforts and Pavolka gave him a supply of authoriza-
tion cards to be signed by employees who wanted the Union
to represent them. Gilmore and Richardson solicited au-
thonzation card signatures in the Respondent's plant and
by May 6, 13 employees had signed cards.
B. The Respondent's May 6 Meeting
In an effort to combat the union organizational drive
which was not apparent to the Respondent's officials, Plant
Foreman Wesley Barr I called a meeting of both the day
and night shift employees for 3:15 p.m. on May 6 in the
plant lunchroom. According to the credible testimony of
Charles Richardson, Plant Foreman Barr started the meet-
ing by directing his first remarks to Ted Gilmore, stating
"Well, Ted, you're doing it again .... You've tried to get
a union in here once and you know what happened. What
do you think is going to happen this time?"2 Barr went on
i I find that Wesley Barr at the time was a supervisor within the meaning
of Sec 2( 11) of the Act . He was the plant foreman supervising approximately
25 employees . He and Vice President Larry Lynott consulted one another
and jointly acted in matters of hiring and discharging employees , and Barr
effectively recommended such personnel action He likewise exercised gener-
al supervision over all plant employees
423
to tell the assembled employees that the Respondent was
not in a position to take on a union at this time because they
could not afford to pay union wages and he said the Re-
spondent was $50,000 in the hole. Richardson credibly
quoted Barr as saying, "Anyway if we get the Union in, the
company would close and move to Bellevue or Bellingham
.... " There was a general discussion among the employees
concerning the merits of the Union. Barr told the group he
had been in a union for some 20 years and it never did
anything for him and he then pointed to Ted Gilmore and
said, "You're in the automobile union . You're not working
now." Wesley Barr said, "Why don't we take a vote and see
what the outcome would be," and he then tore up a quantity
of paper to make ballots for distribution to the employees
who were grouped around the dining room table, some
sitting and some standing. The employees voted "yes" or
"no" to indicate their preference for or against the Union
and threw their ballots into a pile at the center of the table.
Precautionary measures to insure the secrecy of the ballots
were not taken and employees were able to observe how
others voted. The vote was tallied by Wesley Barr and his
father, Alfred Barr, and Larry Tour , an assistant foreman?
The vote was against the Union by a sizable majority. I
find that this nonsecret poll of employee sentiments violated
Section 8(a)(1) of the Act. Struksnes Construction Co., 165
NLRB 1062.
C. The May 7 Meetings
Pavolka held a second organizational meeting in the
Respondent's parking lot at 3:30 p.m. on May 7. At this
meeting, Pavolka told the employees that his union repre-
sented many employees in the wood industry and that their
wage rates and benefits were substantially higher than
Respondent's. He also told the employees concerning their
rights to select their bargaining representative and of the
right to file unfair labor practice charges. During the course
of the meeting, Mr. Larry Lynott, vice president and plant
manager of the Respondent, approached Pavolka and in-
quired what he was doing there. Pavolka told Lynott he was
attempting to organize the plant and that the Respondent
should have received a letter advising it of that fact."
Lynott ordered Pavolka to leave Respondent's proper-
ty. Thereupon Pavolka moved the meeting over to the rail-
road tracks. Lynott summoned some to the employees away
from the union meeting and conversed with them in the
Respondent's parking lot. According to the credible and
uncontradicted testimony of employee Anthony G. Ward,
Larry Lynott told the assembled group of employees that
"he was working on a plan to set up something like that of
his own-a union, benefits, and things of that nature-from
what I gathered it was benefits like vacations, medical bene-
fits and things like that . . . He [Larry Lynott] made a
statement to the fact that he was going to do these things."
I find that the aforesaid promise of benefits to employees
to avoid unionism violated Section 8(a)(1) of the Act.
2 Barr's reference was to Gilmore's unsuccessful attempt to organize for the
Mill Workers Union in April 1971
3 Alfred Barr had been the plant foreman previous to his son, Wesley Barr
"The letter, in evidence as Resp . Exh. 1, is dated May 6 and was received
by the Respondent May 7, 1971 The letter notifies the Respondent that the
Union is in the process of organizing Respondent's employees and cautions
the Respondent not to interfere with the employees' rights
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Union Files its Petition for Representation
With the NLRB on May 10
On May 10, 1971, the Union filed its petition for repre-
sentation of Respondent's production and maintenance em-
ployees with Region 19 of the Board in Case 19-RC-5896.
E. The Union Organizational Meeting of May 12
A third union organizational meeting was conducted
by Pavolka at the union hall on May 12, and additional
authorization cards were submitted to the Union by em-
ployees. Larry Lynott concedes that on the following day he
inquired of employees, including an employee named Sam
Bush, what had transpired at the union meeting, "what he
saw and what happened," what was "the general feeling."
Lynott concedes that Bush told him who was present at the
May 12 union meeting.5
F. The "Union Week" Meeting of May 14
Larry Lynott concedes that he took certain action to
counter the Union's propaganda to the effect that employ-
ees at the St. Regis Company, whom the Union represented,
were receiving $4 an hour for similar work that Respondent
was paying substantially less to its employees. Lynott testi-
fied he wanted to show the employees "the other side of this
rosy picture the union guy was painting for them." So, Ly-
nott testifies in May, for 2 days "He showed up a couple of
mornings at 7 o'clock when the men were supposed to
punch in." Speaking of those employees who were showing
up 15 or 20 minutes late, Lynott testified, "I just kind of
started with hitting them up with what is your problem, why
can't you make it on time?" Lynott testified he was likewise
in this period enforcing the break time limit to 10 minutes
instead of the usual 12, 13, or 14 minutes.
After 2 days, namely on May 14, 1971, Larry Lynott
assembled the entire workforce in the lunchroom about 3:30
p.m. to speak to them. Lynott testifies he told the employees
that they had been getting a nice rosy story from the Union
and he told them "I am just going to run it a little stricter
like the union shop would be run." Lynott concedes he told
the employees that he had a good idea who attended the
May 12 union meeting, but he didn't care. Lynott testified
he told the employees that instead of punching in at 7:15
and 7:20 that the Company expected them to be there on
time, that he expected their breaks would be 10 minutes in
duration. He conceded he had posted a notice to the em-
ployees with regard to tardiness or continual punching in
late,6 and that he had also posted a notice on a new policy
limiting hair length and prohibiting beards. Lynott also tes-
tified he told the employees that he thought they were stab-
bing him in the back by not coming to him. He testified also
that he told the employees that all the Union could do is talk
to him and "why should they pay somebody else to come
and talk to me about their problems." Lynott also admits
s I find that Larry Lynott's interrogation of employees violated Sec . 8(a)(l)
of the Act.
6 This notice next to the timeclock recited that employees who were late
three successive times would be discharged.
he told the employees he was going to review his policy of
making loans to the employees. Lynott testified "what I
really wanted to do is show the employees just what unions
were really about as far as I was concerned, I wanted to
maybe indicate to them what it would be like if they had a
union." Edward Giesler, a witness called by the Respon-
dent, recalls, and I find, that Larry Lynott "explained to us
that we would have a union week which would last one week
and it would show what it would be like if we were to go
union-that if we're late three times consecutively, we
would be discharged, the breaks which had always been 10
minutes and let them go into 15 or 20 minutes would be 10
minutes."
Charles Richardson credibly testified, and I find, that
Larry Lynott said, "You guys want to play Union, well,
we're going to play union. You know I have been fair with
you guys. I've tried to treat you as brothers. I've loaned you
money. I've given you guys jobs that have been out of a job
for a long time .... From now on, there will be no more
loaning of money, no beers, your hair will be cut short, you
will be here not a minute after 7, not 2 minutes after 7 but
at 7 o'clock ... you can't be late more than three times
unless you're going to be canned .... I'm just going to show
you how it is to play union if you want to play union."
Concerning the May 12 union meeting, Richardson credibly
testified that Larry Lynott told the employees that he knew
who had been at the union meeting and he said, "I'm not
calling any names or anything but I know who was there."
Richardson further testified credibly that Lynott told the
employees "it was a possibility that the plant would close if
the Union got in because he just couldn't afford to pay
union scale-he was doing everything he can to get us in-
surance, even the medical benefits and everything."
I find that the foregoing remarks made by Larry Lynott
at the "union week" meeting and the "union week" policies
instituted by Lynott were intended to and did interfere with,
coerce, and restrain the employees in their right to select the
Union as their bargaining representative, in violation of
Section 8(a)(1) of the Act.
G. The $25 Shortage on the Friday, May 14 Paycheck
On Friday evening , May 14, which was payday, the
Respondent shorted each employee's paycheck in the
amount of $25 to demonstrate to them what union dues and
initiation fees would cost them, but 15 minutes later handed
each a separate check for $25 to make up for the shortage
in their paycheck . Larry Lynott's explanation as to his mo-
tives for this action is as follows by his record testimony.
So in conjunction with my union week , I thought
O.K., I will show them just what dues are , how much
is going to be out of their pockets and let them get the
feeling of what it is doing to them instead of just all
these rosy pictures . So Wesley and I, Wesley [Barr]
called up the union hall one afternoon and was rapping
with a guy about what the benefits were and stuff and
getting his sales pitch a little bit and the guy indicated
to him at that time that the dues were $9.00 a month
and that the initiation fee ranged anywhere up to $75.
Wesley kind of reflected this to me later and I asked
him what his carpenter union dues were and he said
JUSTUS COMPANY 425
they were $100 and they took it out over a nine-month
period. I sat down and went through some figures. I
thought this $9.00 a month for straight dues and so
much over an extended period for this $75 or $100, I
broke it down into a 12-month area. I added that up
and said "ok, let's take it out of their checks."
Lynott testified that when the checks minus the $25
were handed out, he "knew things were going to start
flying-the guys were ready to tear the place down." Lynott
testified he told the employees "hold it, don't worry about
it ... I explained to them, `ok, now you're seeing what the
Union is going to do to you if you vote for them, what it
means to you to have these dues taken out and now you are
feeling it.' " Referring to the union officials, Lynott testified
he told the employees:
You are paying the Teamstersjust this much mon-
ey just so they can come and talk to me.... It has been
great so far, you have been talking to me and I have
been talking to you, why do you want to pay dues for
Union Secretary Pavolka testified that the local initia-
tion fee could be as much as $75 or as low as $23 and dues
were $9 a month. He also testified that normally initiation
fees are not deducted from the payroll, only dues are, and
employees usually pay their initiation fees direct to the Un-
ion.
Inasmuch as the conduct of the Respondent in deduct-
ing and then later returning the $25 was intended as dramat-
ic representation that the Respondent would make such
deductions from the employees' paychecks if a union came
in, I find that it constituted a threat of reprisal in the event
a union was selected by the employees. It is clear that the
Respondent would not be legally obligated to make such
payroll deductions if the employees selected a union. I find
that this conduct by the Respondent violated Section 8(a)(1)
of the Act. Yazoo Valley Electric Power Assn., 163 NLRB
777, 786, and fn. 37.
H. The Employees Committee
On June 15, 1971, Plant Foreman Wesley Barr called
a meeting of both shifts of employees at 3:30 p.m. in the
company lunchroom to consider forming a union consisting
only of Respondent's employees to represent the employees
in bargaining with the Respondent. Barr concedes he told
the employees it would be a good idea to have their own
union . A committee was elected to represent the employees
in collective bargaining. The committee consisted of Wesley
Barr, his father, Alfred Barr, and Larry Tour. Larry Tour
in the presence of Wesley Barr drew up a document, iden-
tified in the record as General Counsel's Exhibit 5, which
was signed by 15 employees, including the three committee
members, namely Wesley Barr, Alfred Barr and Larry Tour.
The document reads as follows:
We the undersigned wish to make it known that we
are going to act as our own bargaining representative
through our elected officers and do hereby reserve all
rights to protection under the N.L.R.B. Act or Acts in
law.
June 15, 1971
We ask for a guaranteed date to bargain with the
Owners of the Justus Solid Cedar Home Co. Inc. no
later than 15 days from this date. If they agree they may
place their signature on this document.
Immediately after the completion of the document es-
tablishing the employees committee, Wesley Barr, his fa-
ther, Alfred Barr, and Larry Tour called upon Mr. Frank
Lynott [Larry Lynott's father], the Respondent's president
and controlling stockholder. The committee explained to
Frank Lynott that they had been elected by the company
employees to represent them to the Respondent. Mr. Lynott
invited them into his office where they explained how they
felt, that "we just wanted to represent ourselves." Mr. Ly-
nott agreed it was a good idea but he could do nothing for
the committee and could agree to nothing at that time .7
Although the Respondent has not formally recognized
the employees committee as the collective-bargaining repre-
sentative of its employees, it still functions in the plant.
Larry Tour, who has held the position of assistant foreman
since September 1971 and is one of the committeemen,
called a meeting of the Respondent's employees on compa-
ny time in the plant's lunchroom on December 30, 1971, to
learn where the employees association stood. Tour asked
the assembled employees whether they wanted to continue
with the employees association or drop it. According to
Tour's uncontradicted testimony, the great majority of the
assembled employees indicated that they would prefer to
continue with the employees association and bargain
through it rather than join an organized labor union.
I. Conclusionary Findings Re the Status
of the Employees Committee
I find that the Respondent has fostered , dominated,
and interfered with the formation and administration of the
employees committee and contributed support to it. The
seeds for its formation were first implanted by Larry Lynott,
who told the employees in the parking lot meeting on May
7 that he was thinking of setting up a rival union of his own
with benefits "like vacations , medical benefits and things
like that." The actual formation of the employees commit-
tee was instigated by Plant Foreman Wesley Barr, who
called the meeting on company time and property for that
purpose and who, in addition, served as one of the officers
of that committee.
The Respondent's treatment of the employees commit-
tee is noticeably benevolent when compared with the
Respondent's treatment of the Union. Union Secretary Pa-
volka , who was holding a union meeting on the
Respondent's parking lot on May 6 , was ordered off the
premises by Larry Lynott and the employees were told by
Larry Lynott that they were "stabbing him in the back" by
bringing in this outside union . But the Respondent permits
the employees committee to meet on company time and on
company premises. Although the Respondent has not for-
7 Frank Lynott testified that he read the document (G.C. Exh . 5) that the
committee handed to him The three people told him that they had no interest
in an outside union coming in and requested him to sign the document
"agreeing to make them a company union ." Lynott refused to sign the
document, stating "he couldn't even discuss it with them and they would
have to quit talking about it and leave."
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally recognized the employees committee , it nevertheless
serves as an effective device to discourage the employees in
the selection of an outside labor organization to represent
them.
As the Respondent has dominated, fostered, and inter-
fered with the formation and administration of the employ-
ees committee and contributed support to it, its continued
existence interferes with , restrains , and coerces
Respondent's employees in the exercise of their rights guar-
anteed in Section 7 of the Act, and the Respondent, I find,
thereby has violated Section 8(a)(1) and (2) of the Act. Pines
of America, Inc., 178 NLRB 376, 384; Scott's Inc., 159
NLRB 1795, 1820-1822; Bev Cal Optical Co., 157 NLRB
1287, 1289-1292; Atco-Surgical Supports, 157 NLRB 551;
Webb Manufacturing, Inc., 154 NLRB 827, 830-832.
J. Should a Bargaining Order be Granted?
Paragraph 25 of the General Counsel's complaint alleg-
es that "Respondent has engaged in unfair labor practices
of such an extensive and pervasive character as to require
the issuance of a bargaining order even in the absence of an
8(a)(5) violation." -
The Union filed its petition for representation with the
Board's Regional Office at Seattle on May 10, 1971, in Case
19-RC-5896. The agreed-upon unit was described as: "All
production and maintenance employees employed by the
employer at its Tacoma, Washington place of business, ex-
cluding office clerical employees, professional employees,
guards and supervisors as defined in the Act, and all other
employees of the employer." When the petition for repre-
sentation was filed on May 10, 1971, the Union had 13
signed authorization cards, and on May 12, 1971, the Union
procured three more signed authorization cards, giving it a
total of 16 signed cards.8
Notwithstanding its procurement of 16 signed authori-
zation cards by May 12, 1971, the Union lost the June 17,
1971 Board-conducted election by a vote of 14 to 3. The
Union filed timely objections to conduct affecting the elec-
tion on June 24, 1971. The 16 signed authorization cards are
in evidence as General Counsel's Exhibits 3(a) through 3(p).
In determining the Union's majority status , I have con-
sidered the names of the 25 employees shown in section I
of the stipulation between the General Counsel and the
Respondent which appears in the record as General
Counsel's Exhibit No. 2. Section I of the stipulation con-
tains the names of all full-time employees in the appropriate
unit. I find that of the 25 employees in this group of full-time
employees on May 12, 1971 (see section I of G.C. Exh. 2),
15 employees (see G.C. Exh. 3(a) through 3(p)) had signed
cards authorizing the Union to represent them in collective
bargaining with the Respondent. I have determined that on
May 12, 1971, the Union had a majority based on 16 signed
authorization cards out of a unit of 30 eligible employees.
The eligible employees in the unit are composed of the 25
full-time employees listed on section I of General Counsel's
8 The authorization card reads as follows. "I (name of employee) an em-
ployee of Justus Company do hereby appoint Teamsters Union Local 599 as
my collective-bargaining agent, to represent me in negotiating with my em-
ployer for wages, hours, and working conditions. Signature, address, date.
Phone No."
Exhibit No. 2 and 5 part-time employees listed on section
II of General Counsel's Exhibit No. 2 whose names are:
John Burnett, Roy Costi, David Hartwell, Gilbert Mc-
Creery, and Richard Snowberger. I have excluded from the
unit those eight employees named hereafter listed on section
II of General Counsel's Exhibit No. 2 who, Vice President
Lynott testified, were unscheduled, casual employees, not a
part of the permanent workforce, namely Davis Erickson,
Joe Bell, Dan Agnew, Al Humiston, Marc Canada, Mathis
Middleton, Charles Forkes, and Murray Mustin . Based on
this computation, I find that on May 12, 1971, the Union
represented a majority of 16 out of 30 employees in the
appropriate unit .9
Query: Should a Gissell type remedy be ordered not-
withstanding the failure to allege an 8(a)(5) violation? Inas-
much as I have found in this decision that the Respondent's
discharges of Charles T. Gilmore on May 24, 1971, and
Charles R. Richardson on May 27, 1971, did not violate the
Act, it follows therefore that consideration must be given
only to that conduct which I find violated Section 8(a)(1)
and (2) of the Act in determining whether an 8(a)(5) remedy
should be recommended.
There is no need to repeat again all of the conduct of
Respondent which I have already found violated Section
8(a)(1) and (2) of the Act. I again note that Vice President
Larry Lynott interrogated employees concerning what tran-
spired at the May 12 union meeting; and at the May 14
company-employee meeting pointed out to the employees
that he knew the identity of employees who attended that
union meeting. He also conveyed to the employees the "un-
ion week" threats, namely that with the advent of the Union
the Respondent would become a ruthless taskmaster, who
would impose close surveillance on the employees' work,
shorten break periods, limit hair length, and discharge those
employees who were tardy three times. Especially reprehen-
sible and sufficient in themselves to undermine the Union's
majority status and preclude a fair election were threats to
discharge employees for minor rule violations and to close
the plant if the Union came in and to move it to Bellingham
or Bellevue, Washington, cities respectively 118 and 30
miles removed from Tacoma.10 Such a move as threatened
by Lynott and Barr would have served as a major obstacle
in preventing employees from going to work and most likely
would have resulted in job loss to most of them.
It is reasonable to conclude that the Respondent's poll
of employee sentiments on May 6 and the sponsorship of
and formation of the employees committee on May 15, only
2 days before May 17, the date scheduled for the NLRB
election, seriously undermined the Union's majority and
interfered with a free and fair election.
Additionally, Larry Lynott's promises, to a group of
employees in the parking lot on the same day that the union
representative was ordered off the premises, that he would
set up his own union with vacation and medical benefits
added fuel to the Respondent's coercive campaign to under-
9 There is evidence in the record that some card signers requested the
return of their cards I have given no effect to these requests, because I find
that they resulted from the Respondent's flagrant unfair labor practices
herein found which eroded and undermined the Union's representative sta-
tus Werstein Uniform Shirt Co, 157 NLRB 856, 859-60.
1° The Respondent subsequently did move the plant in November 1971,
but to another location in Tacoma.
JUSTUS COMPANY 427
mine the Union and prevent an untrammeled choice in an
election. Additionally, the Respondent's conduct in deduct-
ing $25 union dues from the employees' paychecks was
calculated to frighten them into the belief that this would be
company practice with the advent of the Union.
In General Stencils, Inc., 195 NLRB No. 173, on re-
mand, 472 F.2d 170 (C.A. 2), the Board adhered to its prior
order requiring the employer to bargain with the union,
since the employer committed numerous unfair labor prac-
tices, including threats of plant closure and discharge if the
union won the election, and these threats, the Board held,
were of such gravity as to render a reliable election unlikely
even if the employer were to discontinue its unlawful con-
duct. In justification for issuing its bargaining order, the
Board stated as follows:
A direct threat of loss of employment whether through
plant closure, discharge, or layoff, is one of the most
flagrant means by which an employer can hope, to dis-
suade employees from selecting a bargaining represent-
ative. Such conduct is especially repugnant to the
purposes of the Act because no legitimate justification
can exist for threatening to close a plant or to impose
more onerous and severe working conditions in the
event of a union victory. Such threats can only have
one purpose, to deprive employees of their right freely
to select or reject a bargaining representative.
I find that the unfair labor practices heretofore out-
lined in this decision were so pervasive and serious as to
render impossible a free and fair election. I find that the
Union's objections to conduct affecting the election have
been substantiated. Therefore, I have concluded that the
election should be set aside. What the Board held in General
Stencils, supra, is applicable here: "Where as here, the viola-
tive conduct has destroyed the conditions under which an
election can be relied on to indicate employee choice, the
Act's sometimes divergent purposes to protect employee
choice and prohibit unlawful conduct are equally well
served by directing the Respondent to bargain with the
Union. The Respondent's conduct is of such gravity as to
render a reliable election unlikely, even if the Respondent
were to discontinue his unlawful conduct." Accordingly, I
will recommend issuance of a bargaining order, General
Stencils, Inc., supra; N.L. R.B. v. Gissell Packing Company,
395 U.S. 575; United Packing Co., 187 NLRB No. 132; Pure
Chem Corp., 192 NLRB No. 88; Yazoo Valley Electric Power
Assn. 163 NLRB 777, 790; L. B. Foster Co., 168 NLRB No.
15; J. C. Penney Co. v. N.L.R.B., 384 F.2d 479 (C.A. 10);
American Enterprises, Inc., 191 NLRB No. 118.
K. The Discharge of Charles T. Gilmore
Charles T. Gilmore was hired by the Respondent on
March 12, 1971, largely on the recommendation of Plant
Foreman Wesley Barr, who was a good friend of Gilmore.
He worked as a log handler for 2 weeks and was then
transferred to the shipping and receiving department where
he remained more or less for the duration of his employ-
ment until his discharge on May 20, 1971. Gilmore's starting
pay was $2 per hour and after 2 or 3 weeks he was raised
to $2.50 per hour. In April 1971, Gilmore contacted the
Lumber and Saw Mill Workers Union where he procured
a quantity of authorization cards. On that occasion, Gil-
more frankly disclosed to his friend, Plant Foreman Wesley
Barr, that he was organizing for Lumber and Saw Mill
Workers Union. Quite innocently, Wesley Barr showed one
of the authorization cards to Vice President Larry Lynott.
Barr reported back to Gilmore that Larry Lynott was "pret-
ty upset about it"; and in so many words said "he would like
to fire the person who was behind it." Gilmore abandoned
further organization for the Mill Workers Union, but in the
first week of May 1971 he contacted Robert G. Pavolka,
secretary of the Teamsters Union which is the Charging
Party in these proceedings. Pavolka handed Gilmore a num-
ber of blank union authorization cards, and Gilmore
promptly procured employee signatures to a number of
cards on May 5 and 6, 1971. About 1 week after he had
begun organizing for the Teamsters Union, Gilmore told
Wesley Barr about it. Barr told Gilmore to stop it and that
he would do everything within his power to see that the
Union did not get into the Justus Company, that the Com-
pany was having a "tough time of it right now." Barr told
Gilmore that Larry Lynott was working on an insurance
plan for the employees.
Gilmore was notified of his discharge by Leadman Ed
Giesler on May 20, 1971. Giesler, according to Gilmore's
testimony, told him they were cutting back on production.
Gilmore immediately went in to talk to Wesley Barr. Gil-
more was told by Barr that he had lost interest in his job and
that he was not doing his job as he had when he first came
there, and his discharge had nothing to do with his union
activities.
The Respondent concedes that it was aware that Gil-
more was actively engaged in union organization. It asserts
that, although it had good reason to discharge Gilmore, it
refrained from such action on advice of counsel, rather than
be faced with an unfair labor practice charge. Larry Lynott
credibly testified that he began receiving reports that Gil-
more was neglecting his work, so he began observing him
and found him to be standing around not working on sever-
al occasions. Lynott is corroborated in this respect by Wes-
ley Barr, who received several complaints from other
employees in the shipping and receiving department that
Gilmore was not performing his share of the work but was
sitting down while others worked. Barr credibly testifies he
spoke to Gilmore about these complaints. When the com-
plaints continued to come, Barr spoke to Larry Lynott
about them, who suggested to Barr that he speak to Gilmore
about the matter. Barr credibly testifies he spoke to Gil-
more, but the complaints kept coming about Gilmore sitting
on the forklift watching the other workers load. When Barr
on two occasions mentioned the matter of his loafing to
Gilmore, he promised to help with the work but, according
to Barr's estimation of Gilmore, "he was just flat dogging
it, he was just not doing anything. I think he wanted to get
canned. I really do."" Barr credibly testified that Gilmore
"was just lazy, he just would not work."
On one occasion in May, Barr instructed Gilmore to
load up a truck with trash and take it to the dump. Barr
instructed Gilmore to cover the trash and board.it securely
"Fellow employee Richard A. Speers adds substance to Ban' s surmise
that Gilmore "wanted to get canned" by his credible and uncontradicted
testimony that Gilmore on more than one occasion told him that he was
hoping the Company would fire him.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to prevent it from flying out. Gilmore took the truck out and
returned with it within an hour after much of the load had
blown out. Gilmore returned in a huff, left the truck at the
plant, and went home without permission. Later that night,
Gilmore phoned Larry Lynott at his home and apologized
for his action that day in walking off the job and asked to
be returned to his job. Lynott credibly testified he told
Gilmore, that he didn't know whether Gilmore still had a
job or not, but to come in the next morning and talk to
Wesley Barr . Lynott reported for work the next morning
and Barr restored him to his job.
On another occasion in late April, Larry Lynott had
instructed Gilmore to take a load of material for a house in
Sun River, Oregon. The trip was scheduled so that Gilmore
would arrive at Sun River not later than 1 p.m. that day, and
the dealer, having been so apprised, kept a crew of five men
waiting to help unload and start working on the house.
About 3:30 p.m. that same day, the dealer called to com-
plain that Gilmore had not arrived, and he was disturbed
that he had kept a crew of men awaiting delivery of the
material . The dealer phoned again at 5 p.m. thoroughly
upset by Gilmore's nonarrival. Lynott credibly testified that
he phoned the dealer the next morning and was advised by
the dealer that Gilmore finally arrived at 5:30 p.m. The
dealer told Lynott that Gilmore had explained his delay
with the excuse that "he had stopped and screwed around
in Portland." Lynott awaited Gilmore's return to the plant
all the following day, and he finally arrived at 3:30 p.m.,
quitting time. When Gilmore arrived, Lynott called him in
and inquired what took him so long . Gilmore's excuse was
that he had made the wrong turn in Portland and went
down the wrong highway for about 15 or 20 minutes before
he discovered his mistake and redirected himself on the
correct course. Lynott took out a map and questioned Gil-
more on the delay and told Gilmore that on the basis of his
explanation , it appeared that between Portland and Bend,
Oregon, he was averaging 3 miles an hour. Lynott, testifying
further concerning this matter, said:
And Gilmore did not really have a lot to say. He
looked like I had caught him in something, and I said;
Ted, we just can't have all day, two days for deliveries
for something when we expect you to do it in one day.
On about May 11, 1971, Gilmore delivered a load of
material for a house to a dealer named Richard N. Owens
at Anderson Island. On May 12, 1971, the Respondent re-
ceived a complaint letter from Mr. Owens as follows:
Dear Mr. Lynott:
I want to register a complaint against your company
for the manner in which delivery of Shakes and under-
layment was made to my building site . These materials
were literally dropped off the truck with no effort to
stack it neatly . Several bundles of Shakes , and four
sheets of underlayment were broken . A half hearted
attempt to cover the underlayment resulted in it being
exposed to the weather. Had a good rain occurred it
would all have been ruined.
It is beyond my comprehension how anyone could be
so thoughtless and sloppy in their work. The shakes
were dropped in two different locations so there are
two disarranged piles . What really made me irate was,
that one piece of underlayment which was broken so
badly as to make it useless , was carried down a path
and thrown on the next lot to mine . You can imagine'
the personal embarrassment I would have experienced
had my neighbor visited his lot before I corrected the
situation.
I am working hard to establish a favorable image for
the Justus Company on Anderson Island. A few min-
utes of carelessness , that I have described herein, has
certainly damaged this image.
I trust this situation will concern you as much as it does
me, and that you will be able to take steps necessary to
insure it does not reoccur in the future.
Respondent's president, Mr. Frank Lynott, credibly
testified that Mr. Owens himself later came into the office
to complain about the delivery. Lynott testified credibly
that Owens complained that Gilmore was late in arrival,
that in unloading he broke a number of pieces of wood or
insulation board , and instead of coming to him and talking
about it, he threw it over a hill onto a neighbor's lot, trying
to hide the thing. Owens further complained, according to
Lynott, that "the shakes had been thrown off the truck and
the bundles were all broke." Lynott further testified that this
dealer told him he "didn't want this man delivering any
more of our products to him."
Larry Lynott testified credibly and without contra-
diction that about mid-May he happened to be downtown
and observed Gilmore driving the truck on a downtown
Tacoma street, which necessarily slows down the truck's
delivery because of downtown traffic and traffic lights. Ly-
nott knew that Gilmore was bound for the Tacoma Narrows
Lumber Company and should have taken the freeway
where his passage would be uninterrupted and much faster.
Lynott confronted Gilmore with his failure to take the free-
way which was the shorter route. Lynott told Gilmore that
he saw him downtown and knew that he didn't take the
freeway as he should have. Lynott testified credibly that he
told Gilmore "Ted, that probably takes three times as long
as if you go on the freeway-that's really not trying to do
your job as fast or as efficient as it can be."
Concerning the decision to discharge Gilmore, Lynott
credibly testified "what to me put the icing on the cake" is
when employee Speers made this trip with the same truck
and a similar load on May 18, to the same destination at Sun
River, Oregon, that Gilmore had made 3 weeks earlier, with
Speers making the round trip in about half the time it took
Gilmore , and with considerable less expense for meals, no
bills for lodging , and with the use of 37 .8 gallons, whereas
Gilmore used 57.5 gallons for the trip. Based on these obser-
vations, Lynott testified "It just made no sense whatever to
me, and I put a great deal of doubt in my mind as to what
he [Gilmore] was actually doing in Portland."
Lynott further testified that it was following Speers'
trip of May 18 that "it really hit me that I can't put up with
this any more. This guy [Gilmore] is trying to use me behind
my back, and I talked with my dad again and he told me
to take off, that he'd talk to our attorney. At that time it was
Mr. Sandell, and he [Sandell] said `If you have any complete
or good cause, I don't blame you, go ahead."' Accordingly
on about May 20, Larry Lynott instructed Wesley Barr to
JUSTUS COMPANY 429
discharge Gilmore, and he was discharged, as earlier set
forth, on May 20, 1971.
L. The Discharge of Gilmore-Conclusionary Findings
Gilmore does not dispute the essential facts relating to
the incidents described above which the Respondent as-
serts, among other things, serve as a basis for his discharge.
Additionally, I find that Gilmore was generally shirking his
work as observed by Lynott and Barr. I further credit Barr's
testimony that he was receiving complaints from fellow em-
ployees of Gilmore that he was not carrying his share of the
workload. In this connection, I credit the testimony of em-
ployee Richard A. Speers who, in describing the manner in
which Gilmore worked, testified, "He was not the ideal
worker. He wouldn't do any more than he absolutely had
to. If he didn't have to do it, or if he could get away without
doing it, he wouldn't. The people would load trucks and he
was supposed to be helping them, and he would take the
load by the fork lift and just sit there and watch other people
putting it on the truck. This was continuous all the time.
Either that or he would just stand around smoking a ciga-
rette."
Although it is clear that the Respondent was fully
aware that Gilmore was organizing for the Union and it is
equally clear that the Respondent was hostile to union or-
ganization I nevertheless find that Gilmore's discharge was
"for cause"12 and not because of his union activity. I am
persuaded that Gilmore had lost interest in his work and
was carelessly neglecting it, and that he was in fact hoping
that the Respondent would discharge him. An employee's
union activity does not immunize him from discharge. I find
that Gilmore's discharge did not violate the Act.
M. The Discharge of Charles Richardson
Richardson was hired by Larry Lynott in April 1971.
He loaded and unloaded lumber for a week or two and he
was then transferred to the dip tank. Richardson attended
the first union meeting in early May at the union hall. He
signed an authorization cards. Richardson, who is black,
told Union Secretary Pavolka that he would contact all his
brothers, namely the black employees, to try and get them
to sign union cards. On the following day, Richardson solic-
ited card signatures from his fellow black employees at the
plant at lunch and break times.
The Respondent denies any knowledge that Richard-
son was organizing for the Union , and there is no direct evi-
dence to establish such knowledge, but there is equivocal
testimony from Wes Barr that it had come to his attention
that Richardson had attended a union meeting in May 1971.
Larry Lynott and Barr deny any knowledge that Richard-
son was passing out union authorization cards.
Larry Lynott testified "that Richardson made a big
impression on him when he hired him-it seemed like he
dust wanted to work." Lynott further testified that Richard-
12 Section 10(c) of the Act provides in pertinent part that "No order of the
Board shall require the reinstatement of any individual as an employee who
has been suspended or discharged , or the payment to him of any back pay,
if such individual was suspended or discharged for cause."
son told him, "I don't care what I get paid. I have to have
a steady job. I have got a family and I have just got to have
a steady income."
Richardson was one of a group of blacks who came
over to talk with Lynott in the first week of May at the time
that Union Secretary Pavolka was holding a union organi-
zational meeting at the railroad tracks, having previously
been ordered off company property. Concerning his conver-
sation with Richardson at this meeting, Lynott testified "at
this meeting he [Richardson] kept kind of rapping, and I
looked at him and I said, `Charles, you know all this talk and
all these questions you are hitting me up with, don't think
you should even think about that until you start working.'
He would say, what do you mean man-we sort of got into
a mind argument at that time and I told him there was
hardly a guy working around him who said he was really
working good. He obviously wanted to know who and I said
`Fred Barr is right on the same locality,' and Fred constantly
told me the guy would stand around. `Gill McCreery, the
guy who is working right with you, says you don't work
worth a shit, you just kind of step back.' He [Richardson]
says, `I'm just trying to learn the stuff.' I said, `Yes, but
before you learn everything else you have got to learn to do
that one job. When you learn your basic job, then you can
start picking up other stuff and go anyway you want.' That
is kind of more or less the way it ended. We argued about
15 minutes on his work abilities and I dust let him know, 'I
wouldn't worry about anything, Richardson, until you start
working-"'
Richardson was discharged on May 27, 1971. Richard-
son testified that about noon Wes Barr approached him and
told him that "Larry said I was just standing around." So
Wes said "he was going to have to lay me off." Wes Barr
testified he was familiar with the incidents leading to the
discharge of Richardson. Barr testified credibly that some-
time in April or May 1971, he had seen Richardson a few
times wandering around the plant. On one occasion, Barr
saw Richardson at the other end of the building talking to
Gussie. Barr went over and asked Richardson, "What are
you doing over here?" Richardson replied "I'm over here;
I want to learn how to run the tending machine," to which
Barr replied "Let's work on one thing at a time, Charles.
Learn to scrape and putty and dip and fill all at once and
then you'll just move around. You work your way up." On
another occasion, Barr credibly testified and visually dem-
onstrated that he observed Richardson with a paint scraper
in his hand, standing up by a wall timber and rubbing it over
the timber languidly with the opposite side of the scraper
rather than with the cutting edge. Barr went over and asked
Richardson what he was doing. Richardson flipped the
scraper over and went to work. Barr further credibly testi-
fied that on the night before Richardson was terminated he
had discussed the matter with Larry Lynott and they agreed
that Richardson should be terminated. Barr testified that on
the following day, he was occupied with other matters when
he observed Richardson carrying one small block of wood 13
at a time when he could easily have carried a large number
at a time from a location in the plant to a place outside. Barr
testified credibly that "Charles [Richardson] was taking one
13 The blocks of wood were 5 inches by 3-1/4 inches and each weighed
1-1/2 pounds. A photograph of the wooden block is shown as Resp . Exh. 9.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these pieces of wood at a time, walking over outside the
building over this big, long building, put the block of wood
on the pile, take a drag on a cigarette, put the cigarette
down; go back and get another piece, come back out and
take another drag on the cigarette-he was in the middle of
his third trip and I said Charles, I asked him what he was
doing-he said I'm completing a wall-and I said one of
those at a time , Charles . . . he said yes." Barr credibly
testified further that he then told Richardson, "I'm going to
have to let you go. I've told you I'm not going to fire you,
Charles. I'm going to lay you off. We can't have that
thing." 14
Barr testified credibly that he had talked to Richardson
about four or five times before he was terminated about his
standing around not working.
Barr testified credibly that on one occasion employee
Gilbert McCreery complained to him about Richardson not
performing his share of the work. McCreery told Barr "If
something's not done, I'm going to quit. I'm just tired doing
his job." Following this complaint from McCreery, Barr
talked to Richardson. Barr testified credibly he told Rich-
ardson "he had to get in gear, and get it on get it off, one
way or the other." Richardson replied, "Yes I'll get it on. I'll
work." But Barr credibly testified, "it didn't happen."
Employee Gilbert McCreery testified credibly that he
complained to Wes Barr on two or three occasions during
the months of April and May 1971 that Richardson was not
keeping. up his end of the job. McCreery, who was
Richardson's leadman, credibly testified that "Richardson
did everything but what he was supposed to do, he did
mostly nothing-he had his mind on everthing except
work." McCreery credibly testified that on several occa-
sions he observed Richardson carrying a small block of
wood around, such as I've described Richardson was car-
rying on the day of his termination. McCreery, corroborat-
ing Barr's testimony, testified that on the day of his
termination , "There was a car sitting right there that he
could have put the thing on, but instead of doing that, he
carried it a good 30 feet onto the dock."
Barr's observation that Richardson was a poor worker
also finds corroboration in the credible testimony of em-
ployee Bari Phillips, who worked with Richardson on the
dip tank in May 1971 and who testified that he completed
12 walls to Richardson's three, and when the two of them
were doing a double cut house, in 1 hour's time , Phillips had
completed twice as much work as Richardson. Phillips fur-
ther testified credibly concerning Richardson's work as fol-
lows:
I would say, as far as his interest in the work, he had
a tendency to drift off from what he was doing-Say
he would start on this end of the board, and by the time
he got to the middle, he would have completely forgot-
ten what the hell he was doing and he would turn
around and start talking to somebody about some-
thing.
Employee Charles W. Sloan also adds substance to the
Respondent's contention that Richardson was a poor work-
er. Sloan credibly testified that on one occasion in late April
or early May, a group of people were directed to move a
quantity of boards from his machine to the dip tank. Rich-
ardson only helped carry one board over; then he just stood
around doing nothing for 20 to 25 minutes while the other
workers in the group carried the boards, two men to a
board.
Leadman Edward G. Giesler also adds substance to the
conclusion that Richardson was a poor worker. Concerning
Richardson's work, Giesler credibly testified "he was not a
very good worker-if you could stand there and work with
him, he would work, but if you turned your back, he would
sit down and do nothing-he stood around more than he
worked."I5
N. Conclusionary Findings Concerning the
Termination of Charles Richardson
Both Larry Lynott and Wes Barr, who joined in the
decision to terminate Richardson, deny having knowledge
that Richardson was active in organizing the Union, but
Barr admitted he had given an affidavit that he was aware
that Richardson had attended a union meeting in May.
Whatever the extent of their knowledge concerning
Richardson's union activity, it still remained the prerogative
of the Respondent to require that its employees attend to
their work. It is clear from the evidence, and I find, that
Richardson had not been attending to his work during May,
a fact which Barr and Lynott were made aware of by per-
sonal observation as well as by complaints from other em-
ployees. It is quite possible that the fact that Richardson was
holding a nighttimejob working from 6 p.m. to 2 a.m. at the
NCO Club so fatigued him as to make him incapable of
performing properly from 7 a.m. to 3:30 p.m. with the Re-
spondent, but this fact did not preclude the Respondent
from expecting, and requiring, that Richardson perform
better. The record is replete with evidence, and I find, that
Richardson was spoken to several times about his inatten-
tion to his work and about his wandering about or idly
standing around. I find that Richardson was terminated for
cause and not for union activity; therefore, his termination
was not in violation of the Act.
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 com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1) and
(2) of the Act, I shall recommend that the Respondent cease
15 The teshmon of witnesses Ive Jordan A A [h U7. dan n ony r in supportJ ry14 Richardson was offered reemployment by the Respondent 's letter dated of Richardson are lacking in sufficient detail and probative force to
October 28 , 1971, if he could report for work by November 8, 1971, and he overcome the testimony of Respondent's witness concerning Richardson's
declined the offer . shortcomings
JUSTUS COMPANY 431
and desist therefrom and from in any other manner infring-
ing upon its employees' Section 7 rights, and that it take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent dominated and inter-
fered with the formation and administration of the employees
committee, a labor organization, and contributed support to
it, it will be recommended that the Respondent withdraw all
recognition from the employees committee and completely
disestablish it.
Having found that the Union was the majority designat-
ed representative of Respondent's employees in an appropri-
ate unit on May 12,197 1, and that the Respondent, by engag-
ing in unfair labor practices aimed at destroying the Union's
majority, discloses a disposition to evade its obligation to
bargain, it is found that a simple cease and desist order
would not prevent Respondent from profiting from its un-
lawful conduct and that only a bargaining order can restore,
as nearly as possible, the situation which would have ob-
tained but for Respondent's unfair labor practices. Accord-
ingly, it will be recommended that Respondent bargain with
the Union as the collective-bargaining representative of its
employees in the appropriate unit and, if an agreement is
reached, embody such agreement in a signed contract.
Having found that the Respondent, by its unfair labor
practices, interfered with and made impossible the expres-
sion by its employees of their free and untrammeled choice
in the election held on June 17, 1971, it will be recom-
mended that the election be set aside, and that, in view of
the order to be recommended, all proceedings in Case 19-
RC-5896 be vacated and the petition dismissed.
In view of the nature and extent of the unfair labor
practices found to have been engaged in by the Respondent,
which indicate its determination to interfere aggressively
with its employees' rights of self-organization and its inter-
ference with the principle of collective bargaining, I shall
recommend a broad cease-and-desist order herein.
Upon the basis of the above findings of fact and upon
the entire record in the case, I reach the following:
CONCLUSIONS OF LAW
1. The Respondent, Justus Company, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, Warehouse and Produce Workers Local
Union No. 599, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
3. By dominating and interfering with the formation and
administration of the employees committee, and contributing
support thereto, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (2) of the
Act.
4. By interrogating employees concerning union meet-
ings and union activities; by making statements giving em-
ployees the impression that their union meetings were under
surveillance; by polling employees concerning their union
sentiments ; by threatening employees that if they should
select the Union as their representative, plant discipline
would be tightened, previous privileges revoked, coffee
breaks shortened, hair lengths regulated, employees would
be discharged for minor tardiness, the plant would be closed
or moved to Bellingham or Bellevue, Washington, and un-
ion dues of $25 would be deducted from the employees'
biweekly paychecks; and promising insurance and other
fringe benefits if the employees would abandon the Union,
the Respondent has interfered with, restrained and coerced
employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act and has thereby engaged in, and is engag-
ing in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. On May 13, 1971, the union was the exclusive repre-
sentative for collective-bargaining purposes of Re-
spondent's employees in the unit described as follows:
All production and maintenance employees employed
by Respondent at its Tacoma, Washington, place of
business, excluding office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act, and all other employees of the Respondent.
The aforesaid unit was, and is, a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act; and any subsequent loss of such
status is the result of the Respondent's unfair labor practices
heretofore found above.
7. The Respondent did not violate the Act by terminat-
ing the employment of Charles T. Gilmore and Charles
Richardson.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:16
ORDER
Respondent, Justus Company, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation or ad-
ministration of the employees committee, or any other labor
organization of its employees, or contributing financial or
other support thereto, or recognizing the employees com-
mittee or any successor thereto.
(b) Coercively interrogating employees concerning un-
ion meetings and union activities; coercively polling em-
ployees concerning their union sentiments; making
statements giving employees the impression that their union
meetings were under surveillance; threatening employees
that if they select the Union as their representative, plant
discipline would be tightened, previous privileges revoked,
coffee breaks shortened, employees discharged for minor
rule violations and tardiness, the plant closed or moved to
distant locations, and $25 union dues would be deducted
from employee paychecks; and promising insurance and
16 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other fringe benefit payments if the employees would aban-
don the Union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Completely disestablish the employees committee as
a representative of any of its employees for the purpose, in
whole or in part, of dealing with or discussing grievances,
labor disputes, wages, rates of pay, hours of employment, or
conditions of work.
(b) Upon request, recognize , and bargain collectively
with Warehouse and Produce Workers Local Union No. 599,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclusive representa-
tive of the employees in the appropriate unit set forth in the
Conclusions of Law above, and embody in a signed agreement
any understanding reached.
(c) Post at its plant at Tacoma, Washington, copies of the
attached notice marked "Appendix."" Copies of said no-
tice, on forms provided by the Regional Director for Region
19, after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of the receipt of this
Decision , what steps Respondent has taken to comply here-
with.is
17 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
18 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 19, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Warehouse and Produce Workers Local Union No. 599,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of our employees in the bargaining unit
described below.
WE WILL bargain collectively, upon request, with the
aforesaid Union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and,, if an
understanding is reached, embody such understanding
in a signed agreement.
The bargaining unit is:
All production and maintenance employees em-
ployed by Justus Company, Inc., at its Tacoma,
Washington place of business , excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act, and
all other employees.
WE WILL NOT coercively interrogate our employees
concerning union meetings or other union activities.
WE WILL NOT tell or indicate to our employees or
give them the impression that their union meetings are
under surveillance.
WE WILL NOT coercively poll our employees con-
cerning their union sentiments.
WE WILL NOT threaten to close our plant or move it to
distant locations if our employees select the aforesaid
Union, or any other labor organization, to represent
them.
WE WILL NOT threaten our employees that if they
select the aforesaid Union, or any other labor organiza-
tion, to represent them that plant discipline will be
tightened, previous privileges revoked, employees dis-
charged for minor violations or tardiness, coffee breaks
shortened, and hair lengths and beards restricted or
forbidden.
WE WILL NOT withhold any part of our employees'
pay, even temporarily, and tell them that if a union
should become their collective-bargaining representa-
tive, similar amounts , or any amounts , will be withheld
from their pay and given to the Union without their
consent.
WE WILL NOT promise insurance, vacation and oth-
er fringe benefits to our employees if they abandon a
union.
WE WILL NOT dominate and interfere with the forma-
tion and administration of the employees committee of
Justus Company, Inc., or any other labor organization or
contribute financial or other support to it, and WE WILL
completely disestablish the employees committee of Jus-
tus Company, Inc., as a representative of any of our em-
ployees.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form , join , or assist any labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any or all such activities.
Dated By
JUSTUS COMPANY, INC
(Employer)
(Representative) (Title)
JUSTUS COMPANY 433
This is an official notice and must not be defaced by this notice or compliance with its provisions may be direct-
anyone. ed to the Board's Office, 10th Floor, Republic Building,
This notice must remain posted for 60 consecutive days 1511 Third Avenue, Seattle, Washington, 98101, Telephone
from the date of posting and must not be altered, defaced, Number: 206-442-5692.
or covered by any other material. Any questions concerning