L. G. Everist, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1953

103 N.L.R.B. 308 (N.L.R.B. 1953)

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in the appropriate unit who are employed during the
payroll period immediately preceding the date of issuance of the
notice of election.'
[Text of Direction of Election omitted from publication in this
volume.]
1 Truck Equipment Company of Atlanta, 93 NLRB 825.
L. G. EVERIST , INC. and UNITED STONE AND ALLIED PRODUCTS WORKERS
OF AMERICA , C. I. O. Case No. 18-CA-345. March 5, 1953
Decision and Order
On August 27, 1952, Trial Examiner Thomas S. Wilson issued his
Intermediate 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 filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with our
findings, conclusions, and order herein set forth.
1. We agree with the Trial Examiner's conclusion that the Respond-
ent from the very inception of the bargaining negotiations for a
contract failed and refused to bargain with the Union in good faith in
violation of Section 8 (a) (5) of the Act. In adopting this conclu-
sion, however, we rely only upon the following conduct of the Re-
spondent, more fully described in the Intermediate Report, which in
our opinion clearly establishes that the Respondent failed to bargain
with the Union in good faith as required by the Act :
(1) On August 15, 1951 the Respondent posted at its quarry a
notice to its employees "inviting all hands" to attend a bargaining
conference with the Union scheduled for that afternoon. The Union
objected to holding the conference under such conditions. The Re-
spondent, however, continued to insist that the conference be held in
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Members Houston , Murdock , and Styles].
103 NLRB No. 33.
L. G. EVERIST, INC. 309
the presence of the invited employees. As a result, no bargaining
conference was held on that day. The next day, the Union called a
strike in protest against the Respondent's conduct of the previous day
and established a picket line at the plant entrances. Respondent's
insistence that bargaining negotiations be conducted in the presence
of the rank-and-file employees clearly was contrary to uniform indus-
trial practice and was not conducive to the orderly, informal, and
frank discussion of the issues confronting the negotiators necessary to
reach a contract. It also constituted interference with the employees'
right to bargain through the representatives of their own choosing,2
and evidenced the Respondent's absence of good faith in dealing with
the statutory bargaining agent of the employees.
(2) Although the Board had certified the Union as the exclusive
bargaining representative of the Respondent's employees on July 20,
1951, the Respondent, in the bargaining negotiations which followed
the certification, in effect, refused to recognize the Union's representa-
tive status. Thus, at the August 8, 1951, conference Respondent's
Representative Alfred objected to the inclusion of the word "exclusive"
in the recognition clause of the proposed contract, and at the January
10, 1952, conference General Manager Phillip Everist informed the
Union that the board of directors objected to granting the Union
"exclusive representation" for the reasons that a majority of the
strikers had abandoned the strike and it no longer considered the
remaining strikers its employees. As the Union's representative
status was established by the Board's certification, such status, absent
unusual circumstances, is conclusively presumed to continue for at
least 1 year. The Respondent, therefore, was under an obligation to
recognize and bargain with the Union as the exclusive representative
of its employees at all times material hereto 3
(3) On August 17 and August 20, 1951, the Respondent discharged
four union leaders in retaliation for their participation in the strike
called by the Union on August 16, 1951, for reasons detailed above.
(4) On or about September 10, 1951, the Respondent without notice
or consultation with the Union and while negotiating with the Union
for a contract, granted to its employees a 10-cent across-the-board
pay increase. This action was taken in the face of the fact that a
wage increase was one of the issues to be discussed and resolved with
the Union at the bargaining table. Under similar circumstances, the
2 Lenox Furnace Company, Inc., 20 NLRB 962, 976 ; Jasper Blackburn Products Corp.,
21 NLRB 1240 , 1250 ; Pioneer Electric Co., 70 NLRB 771; City Packing Co., 98
NLRB 1261.
'Jersey City Welding d Machine Works, Inc., 92 NLRB 510 ; United States Gypsum Co.,
90 NLRB 964; West Fork Cut Glass, 90 NLRB 944; Mid-Continent Petroleum Corvora-
tion, 99 NLRB 182.
257965-54-vol. 103-21
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board has held that such unilateral grant of a wage increase was a
violation of the employer's obligation to bargain in good faith 4
(5) While the strike was still in progress, Production Manager
Alfred orally solicited individual strikers to return to work and stated
that if they did not return they would be fired. Alfred also mailed to
numerous strikers a letter stating that "if [you] wish to talk to [me]
in reference to going back to work, [I] will be glad to meet with
[you]." Although the letter did not expressly request the strikers'
return, it could have been reasonably construed by the strikers as an
invitation to abandon the strike and the Union. As these acts of
solicitation of the strikers were not isolated acts, but an integral part
of a pattern of illegal opposition to the purposes of the Act, we find
such conduct to be violative of the Act .5
(6) We do not agree with the Trial Examiner's finding that the
tentative agreement reached by the representatives of the Respondent
and the Union at the bargaining conference of December 12, 1951,
constituted a final and binding contract .e Nor do we find, as did the
Trial Examiner, that the rejection of that proposed agreement by the
Respondent's board of directors was per se a violation of Section 8
(a) (5) of the Act.7
We do, however, find that, in the circumstances of this case, the
action of the board of directors in flatly rejecting the agreement
accepted by the Respondent's representative constitutes further evi-
dence of the Respondent's lack of good faith in its dealing with the
Union. We reach this conclusion because, in our opinion, the Re-
spondent's purported objections to the December 12, 1951, tentative
agreement were not interposed in good faith for the following reasons :
(a) The board of directors' insistence that the contract with the
Union should follow the form of the Western Contracting Cor-
poration's contract with the Teamsters' Union was obviously frivolous.
That contract involved employees of a construction firm engaged in
a temporary project-the construction of a dam-whereas the tenta-
tive agreement was to cover the employees of a quarry, which is a
permanent business of a different type. As L. Garland Everist him-
self admitted, certain provisions of the Western Corporation's con-
tract were not applicable to a contract covering the employees of the
4 Shannon ( Shannon & Simpson Casket Co.), 99 NLRB 430 ; West Boylston Mfg. Co.,
87 NLRB 808.
c The Texas Company, 93 NLRB 1358 ; Celanese Corporation of America , 95 NLRB 664
s We reject the Trial Examiner ' s finding in this respect for the following reasons • It is
undisputed that at the meeting at which this agreement was reached Phillip Everist
informed the union representatives that the agreement was subject to approval by the
board of directors The agreement thus arrived at was a tentative agreement which the
representatives jointly recommended to their principals who had the final authority to
accept or reject it. 'See : Fort Industry Co., 77 NLRB 1287, 1300 ; Elgin Standard Brick
Manufacturing Co , 90 NLRB 1467, 1484.
7 Ibid . See also : Shell Oil Co. , Inc , 77 NLRB 1306 ; Amalgamated Meat Cutters and
Butcher Workmen , etc., 81 NLRB 1052.
L. G. EVERIST, INC. 311
quarry. Finally, the Respondent's own attorney selected the form
and drew the proposed contract which Phillip Everist then believed
to be suitable to the occasion. (b) In the absence of unusual cir-
cumstances, a union's representative status is conclusively presumed
for at least 1 year following the Board's certification." As no unusual
circumstances were shown to exist in this case, the Respondent was
under an obligation to bargain with the Union during the certification
year, even though it might have believed that the Union's majority
status had been destroyed by the defection of the strikers and the hir-
ing of the replacements.9 (c) As the Respondent's duty to bargain
with the Union continued unimpaired, the Respondent was also obli-
gated to give full force and effect to the Board's certification. The
Respondent's willingness to execute a contract terminable at the will
of the parties or a contract to expire at the end of the certification
year was not in compliance with the intent and the purpose of the
Board's certification. To permit the Respondent to prevail in its
contention, would defeat the basic policy of certification of unions as
bargaining agents, a policy designed to promote the stability in indus-
trial relations. It would encourage recalcitrant employers to engage
in dilatory tactics in reaching final agreement in order to reduce the
term of the contract to a fraction of the certification year. In the
circumstances of this case, the 1-year term of the tentative agreement
was plainly not unreasonable. The Respondent's objection to the
tentative agreement on this ground, therefore, indicates its lack of
good-faith bargaining.10
(7) At a bargaining conference held in February 1952 after the
rejection by the board of directors of the December 12, 1951, tentative
agreement, Respondent's Attorney Burke informed the Union that
the Respondent "now took the position" that it would not grant the
Union the right to use the plant's bulletin boards, would not agree
to 4 paid holidays, and would not accord union representatives the
right to visit the plant during working hours. Burke offered no
explanation for the Respondent's shift in position with respect to
these matters.
(8) Also, in February of 1952 Respondent's Attorney Burke stated
to Union Representative Smart that he would recommend to the Re-
8 Jersey City Welding & Machine Works, Inc ., 92 NLRB 510 ; United States Gypsum Co.,
90 NLRB 964 ; West Fork Cut Glass, 90 NLRB 944; N. L. R. B. V. Sanson Hosiery Mills,
195 F. 2d 350 ( C. A 5) ; cert. den . 344 U. S. 863 ; N. L. R. B. v. Globe Automotive
Sprinker Co., 199 F. 2d 64 (C. A . 3) ; The Mengel Co., 80 NLRB 705.
See the cases cited in the preceding footnote . Moreover, the fact that a majority of
the strikers had returned to work, or that the jobs of the remaining strikers have been
filled by new employees , is not conclusive proof that the Union ceased to represent a
majority of the Respondent 's employees ( West Fork Cut Glass Co ., supra).
'° See numerous Board cases holding that 1-year contracts are contracts of reasonable
duration.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent that it submit to the Union a new draft of an acceptable
contract. No such draft was ever submitted to the Union.
Considering the Respondent's conduct throughout the negotiations
we are convinced that the Respondent, while at times going through
the motions of bargaining, did not negotiate with the Union with an
open mind and a sincere purpose to find a basis for agreement. We
find, therefore, that the Respondent's conduct during the negotiations
with the Union failed to meet the standard of good-faith bargaining
required by Section 8 (d) of the Act, and constituted a refusal to
bargain in violation of Section 8 (a) (5) of the Act.11
It appears that the Union, which is in compliance with Section
9 (f), (g), and (h) of the Act, has a local at the plant identified
herein as Local 63, which was organized about a month after the Union
was certified on August 20, 1951. Local 63 did not comply with the
above provisions of the Act until February 18, 1952. Thus, from
about September 20, 1951, when Local 63 came into being, and until
February 18, 1952, when Local 63 came into compliance, the Union
was not in full compliance with the filing requirements of the Act.
However, for the reasons set forth in the New Jersey Carpet Mills
case 12 we do not believe that this lack of compliance by the Union's
local suspended the Respondent's obligation to bargain with the Union
during that period. The respondent furthermore at no time during
this period predicated its refusal to bargain on that ground.
Nor do we believe that the complaint in this case should be dismissed
for lack of compliance by Local 63 with Section 9 (f), (g), and (h)
at the time when the original and amended charges were filed on
October 3, 1951, and February 11, 1952, respectively. The Act does
not require compliance until the time the complaint issues and we have
been administratively advised that the filing requirements of Section
9 (f), (g), and (h) of the Act were fully satisfied on February 18,
1952, before the complaint was issued, and that since that time Local
63 has maintained its compliance status continuously 13
The Remedy
As it has been found that the December 12, 1951, tentative agree-
ment was not binding upon the Respondent, we will not adopt the
Trial Examiner's recommendation that the Respondent be ordered
to execute and place into effect the terms of that agreement.
11 N. L. R. B. v. American National Insurance Co., 343 U. S. 395; N. L. R. B v. Atlanta
Broadcasting Co., 193 F. 2d 641 (C. A. 5), enfg . 90 NLRB 808; Southern Saddlery Co.,
90 NLRB 1205.
12 New Jersey Carpet Mills, Inc., 92 NLRB 604; West Texas Utilities Company v.
N L. R B., 184 F . 2d 233 (C. A. D. C.), enfg. 85 NLRB 1396.
13 Dant t Russell, Ltd., 73 S. Ct. 375 ; I. B. S. Manufacturing Company, 96. NLRB 1263.
L. G. EVERIST, INC. 313
The Trial Examiner found, and we agree, that the Respondent on
August 17 and August 20, 1951, discriminatorily discharged Robert
Waupoose, Casper Adams, Leopold Jascot, and Leo Groos. We shall,
therefore, order that the Respondent cease and desist from discourag-
ing membership in the Union by discharging or otherwise discriminat-
ing in regard to hire and tenure of employment of its employees.
The Trial Examiner also recommended that the Respondent offer
to these employees immediate and full reinstatement to their former
or substantially equivalent positions with back pay from December
17, 1951, on the theory that on that date they would have been re-
turned to work except for the Respondent's rejection of the December
12 tentative agreement with the Union. However, the record shows
that TVaupoose and Adams were reemployed by the Respondent on
April 1, 1952, and that a the time of the hearing they were still in the
Respondent's employ. As we believe that the positions which Wau-
poose and Adams now occupy are substantially equivalent to their
former positions we shall not order their reinstatement 14 With re-
spect to Groos we find that, although he was reemployed by the Re-
spondent on April 1, 1952, he was not returned either to his former
or a substantially equivalent position. Before his discharge he drove
a K-11 truck. Since his reemployment, he has been assigned to all
kinds of jobs, including cleaning cars, shoveling sand, etc. Although
Groos was reemployed at his former rate of pay plus a 10-cent wage
increase unilaterally granted by the Respondent during the strike,
we find that he was not properly reinstated since his present job is
more onerous than his former job. We shall therefore order that
the Respondent reinstate Groos to his former or other substantially
equivalent employment 15
As to Jascot: The record shows that on March 4, 1952, and again
after the termination of the strike on March 27 the Respondent uncon-
ditionally offered to reinstate Jascot with all the rights and privileges
he had before his discharge, but that Jascot did not avail himself of
this offer. In view of Jascot's failure to accept the Respondent's
offer after the termination of the strike, we shall not order the rein-
statement of Jascot.
Back pay: At the time of their discharge, the 4 discriminatees were
on strike to compel the Respondent to bargain with the Union in the
discharge of its statutory obligation. At no time after their discharge
did they indicate their willingness to abandon the strike. The Re-
spondent, on the other hand, had at all times since September 1951
held out an unconditional offer to reinstate all 4 discriminatees to their
19 Service Parts Company, 101 NLRB 1172.
is Cf . Ozark Dam Constructor8, 99 NLRB 1031 ; Rockwood Stove Works , 63 NLRB
1297.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former or substantially equivalent employment. After the termina-
tion of the strike on March 27, 1952, the Respondent, in fact, rein-
stated 3 of the discriminatees after they applied for reemployment 16
Jascot, the fourth discriminatee, did not apply for reinstatement."
In view of the above evidence and for the reasons which impel our
policy of denying strikers back pay while out on strike and until they
make an unconditional application for work, we believe that it will
best effectuate the policies of the Act to deny the discriminatees any
back pay.18
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 L. G. Everist, Inc., Dell Rapids,
South Dakota, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Stone and Allied
Products Workers of America, C. I. 0., as the exclusive representa-
tive of all production and maintenance employees of the Company's
Dell Rapids, South Dakota, operations excluding all office and clerical
employees, watchmen and guards, professional and supervisory em-
ployees, as defined by the Act.
(b) Discouraging membership in United Stone and Allied Products
Workers of America, C. 1. 0., by discharging or otherwise discriminat-
employees in the exercise of their right to self-organization, to form
(c) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection, or to refrain from any
or all of such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
16 As noted above, Groos , although not reinstated to his former or substantially equiva-
lent job , was reemployed at his former rate of pay plus the 10 -cent wage increase.
34 As we do not agree with the Trial Examiner 's conclusion that the December 12, 1951,
tentative agreement was binding on the Respondent , we also disagree with his conclusion
that the Respondent was under an obligation to reimburse the discriminatees for the loss
of pay from December 17, 1951, the date which the Trial Examiner found they would
have returned to work but for the rejection of the agreement
" National Gas Co., 99 NLRB 273, where the Board found that the unfair labor practice
strikers were entitled to back pay from the date on which they unconditionally requested
reinstatement , rather than from the prior date when they were discriminatorily discharged
since "the loss of wages may not conclusively be attributed to the discharge until the
employees had indicated their willingness to abandon the strike " See also Victor
Products Corporation , 99 NLRB 516 ; Ozark Dam Constructors , 99 NLRB 1031 ; Thompson
f Co., 100 NLRB 456.
L. G. EVERIST, INC. 315
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Leo Groos immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Upon request, bargain collectively with United Stone and Al-
lied Products Workers of America, C. I. 0., as the exclusive repre-
sentative of the employees in the appropriate unit above found with
respect to rates of pay, wages, hours of employment, or other terms or
conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement.
(c) Post at its plant and Dell Rapids, Souti Dakota, copies of the
notice attached hereto and marked "Appendix A." 19 Copies of such
notice, to be furnished by the Regional Director for the Eighteenth
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt
thereof and maintained for sixty (60) days in conspicuous places in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
'* 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."
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, we hereby notify our employees that:
WE WILL bargain collectively upon request with UNITED STONE
AND ALLIED PRODUCTS WORKERS OF AMERICA, C. I. 0., as the
exclusive representative. of all employees in the bargaining unit
described herein, and if an understanding is reached, we will
embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees of the company's
Dell Rapids, South Dakota, operations excluding all office
and clerical employees, watchmen and guards, professional
and supervisory employees as defined by the Act.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Leo Groos immediate and full reinstatement
to his former or substantially equivalent employment without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist UNITED STONE AND
ALLIED PRODUCTS WORKERS OF AMERICA, C. I. 0., or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any terra
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
L. G. EVERIST, INC.,
Employer.
Dated---------------------- By-------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
This matter arises upon a complaint dated March 3, 1952,' by the General
Counsel' of the National Labor Relations Board, herein called the General
Counsel and Board, respectively, through the Regional Attorney for the
Eighteenth Region (Minneapolis, Minnesota), against L. G. Everist, Inc., herein
called the Respondent, which alleged in substance that the Respondent had in
various enumerated ways on or about August 15, 1951, interfered with, restrained,
and coerced its employees, that since on or about August 15, 1951, had refused to
bargain collectively in good faith with the Union as the exclusive bargaining
representative of its employees in an appropriate bargaining unit, and that on
or about August 17, 1951, the Respondent discharged four named employees
because they had engaged in a strike beginning on August 16, 1951, which was
1 The complaint in turn is based upon a charge and amended charges filed November 3,
1951, and February 11, 1952, by United Stone and Allied Products Workers of America,
C. I. 0., herein called the Union.
2 This term specifically includes the counsel for the General Counsel appearing at the
hearing.
L. G. EVERIST, INC. 317
caused and prolonged by the Respondent's unfair labor practices and thereby
the Respondent had engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2
(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein
called the Act. Copies of the charges, complaint, and notice of hearing thereon
were served upon the Respondent and the Union. Respondent filed its answer
admitting certain allegations of the complaint but denying the commission of any
unfair labor practices.
Pursuant to said notice, a hearing was held from May 19 to May 23, 1952, at
Dell Rapids, South Dakota, before the undersigned Trial Examiner. The General
Counsel, the Union, and the Respondent were represented by counsel. All
parties participated in the hearing and were given full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing upon
the issues, to present oral argument, and to file briefs and proposed findings of
fact or conclusions of law or both. Oral argument at the conclusion therein was
waived but the Respondent filed a brief.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
L. G. Everist, Inc., is now, and has been at all times hereinafter mentioned, a
corporation organized under and existing by virtue of the laws of the State of
Iowa, having its principal office at Sioux Falls, South Dakota. Respondent
operates stone quarries at Hawarden, Iowa, and Dell Rapids, South Dakota. At
its Dell Rapids, South Dakota, operations, hereinafter called the plant, the
Respondent is engaged in the mining and marketing of stone, sand, gravel, and
riprap.
In the course and conduct of its business and in the operation of the plant,
Respondent causes and has continuously caused large quantities of fuel, elec-
tricity, cables, steel, zinc, and other materials to be purchased and transported
in interstate commerce from and through the States of the United States other
than the State of South Dakota to the plant, and causes and has continuously
caused large quantities of the products produced at the plant to be sold and
transported in interstate commerce from the plant to, through, and into States
of the United States other than the State of South Dakota.
During the calendar year of 1951, the Respondent made purchases of fuel,
electricity, cable, steel, zinc, and other supplies aggregating in excess of $50,000,
of which amount in excess of 50 percent represented purchases and shipments
to the plant from points outside the State of South Dakota. For the same period
Respondent made sales of stone, sand, gravel, and riprap aggregating in excess
of $100,000, of which amount in excess of 50 percent represented sales and
shipment from the plant to points outside the State of South Dakota.
The Respondent admits, and the undersigned finds, that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Stone and Allied Products Workers of America, C. I. 0., is a labor organ-
ization admitting to membership employees of the Respondent.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The facts
a. Negotiations prior to December 5, 1951
On July 20, 1951, following the holding of a consent election in the agreed
upon appropriate unit consisting of all production and maintenance employees of
the Respondent's Dell Rapids, South Dakota, operations, excluding all office and
clerical employees, watchmen and guards, professional and supervisory em-
ployees as defined by the Act, the Union was certified as the exclusive representa-
tive of the Respondent's employees in said unit.
As a result of this certification, the Respondent and the Union began negotia-
tions looking towards the consummation of a labor contract on August 7, 1951.
The Respondent was represented by its production manager, Robert C. Alfred,
who had been selected as the Respondent's representative at these conferences by
the Respondent's general manager and secretary, J P. (Phil) Everist, who in-
structed Alfred "to take charge of the negotiations to lead off with," to keep
in daily touch with him, and to check all final agreements with the family and
with the board of directors before committing the Respondent .3 The Union, on
the other hand, was represented by Attorney Francis X. Helgesen and its inter-
national representative, Merle L. Smart. While both sides had other representa-
tives at the numerous meetings, Helgesen and Alfred dominated the negotiations
until September and October 1951, respectively. Unfortunately, Helgesen was
the only person having had previous experience in labor negotiations among
those present. This lack of experience did not simplify matters here.
The meeting of August 7 was purely a "get-acquainted" or exploratory meet-
ing. At the meeting of August 8, however, the Union presented its proposed
contract. This contract was complete except for its proposed wage scale which
was submitted by letter dated September 11, 1951, after Respondent had supplied
the Union with certain information requested. At this meeting Helgesen in-
quired as to the authority of Alfred to negotiate a contract. The evidence is in
dispute as to whether Alfred replied that he had the authority to "negotiate a
contract for the company," or whether he stated that he had authority to negotiate
and sign a contract but "would have to check it with [his] superiors," as Alfred
testified, or that he "had the right to negotiate but he would have to take it back
to management for signing, approval," as one of Alfred's conegotiators testified."
At this meeting Alfred objected to the Union's request for recognition as the
"exclusive representative" of the employees in the unit. Helgesen answered that
such recognition was required by law. After a few meetings the Respondent ulti-
mately agreed to the inclusion of the word "exclusive" in the recognition clause.
The contract was gone over paragraph by paragraph but nothing was accom-
plished definitely at this meeting.
Another meeting was scheduled for August 14, which, however, was not held
because Alfred had left town by the time the union representatives arrived for
the meeting several hours late.
A meeting was then arranged for late in the afternoon on August 15. As the
union representatives approached the company building in which the negotiations
9 This instruction was redundant in that the Respondent is a "family corporation" in
which the members of the family constitute the board of directors. What Phil Everist
had in mind with his statement "to lead off with" does not appear in the transcript.
4 The undersigned believes that it is immaterial to a decision here as to which way
Alfred described his authority.
L. G. EVERIST, INC. 319
were to be held, Helgesen notice a bulletin posted upon the wall wherein the
Respondent "invited all hands [employees]" to attend the negotiation session
scheduled for that afternoon. Helgesen protested this notice to Alfred in rather
strong language and received a reply in kind' There is a dispute among the
witnesses as to whether the Respondent refused to meet with the Union unless
the employees were permitted to attend or whether the Union refused if the
employees did attend. This fiareup concluded with Helgesen's promise to meet
Alfred "on the picket line." Thus at the very outset the negotiations began on an
unhappy note.
The next morning, August 16, about 5 a. m., the Union did establish a picket
line around the entrances to the Respondent's plant. The strike was not one
hundred percent effective even on the first day, for some of the employees went
through the picket line to work. Helgesen was on the line to instruct the strikers
as to their rights. Robert Waupoose, union president; Leo Groos, union trustee;
Leopold Jascot, union secretary and treasurer and member of the negotiating
committee ; and Casper Adams, member of the negotiating committee, were
among those employees engaged in picketing.
Between 9 and 10 a. in. the following day, August 17, 1951, Alfred discharged
Waupoosa, Adams, and Jascot under circumstances which will be found in more
detail hereinafter. On either August 20 or 21 Alfred also discharged Groos as
will be related hereinafter. Alfred handed each man a check dated August 16,
1951, at the time of his discharge. Subsequently, a good part of the time spent in
the negotiations was taken up with the complications of ending the strike and
returning the strikers to work.
On August 21, 1951, the Respondent mailed to numerous employees then on
strike one or the other of the following type letter over the signature of Alfred :
Dear Mr. .
It has not been necessary as of date to hire a man to take over your work.
If you wish to talk to me in reference to going back to work, I will be glad
to meet with you. I am available at almost any time. Our phone number is
... etc.
or
Dear Mr. --
It has been necessary to hire another man to take your job. However, at
any such time you are ready to return to work and at such time as LGE has
additional openings for employment, I will be willing to talk to you in refer-
ence to work.
There is also denied testimony that beginning at about the time of these letters,
Alfred orally advised the picketing employees that if they did not return to
work, he would fire them. In view of the similarity of meaning between the
letters above quoted and the oral statement, the undersigned finds that Alfred
made the oral statements to the pickets despite Alfred's denial.
Through the good offices of the Federal Mediation and Conciliation Service
which had been called in on the matter by the Union, the Respondent and Union
again met on August 25, 1951. This meeting began with Alfred's demand that
the strike be called off and pickets removed before the negotiations continued.
This demand had three conditions to it: (1) That the strike be called off; (2)
5 Similar invitations to employees to attend negotiation sessions have been the subject
of several Board decisions which hold that this action may be considered on the question
of the inviter's good faith in the negotiations. The testimony shows that Alfred consulted
the Respondent's attorney prior to posting the invitation and was advised by the attorney
that he could see "nothing wrong" with the invitation.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the pickets be removed; (3) that the strikers were to return to work except
that the 4 men discharged were to be suspended for 60 days after which their
reinstatement would be considered; and (4) that another employee whose situa-
tion had nothing at all to do with these negotiations was to be discharged out-
right. The Union rejected the first 3 conditions. After some discussion of the
return of the strikers to work, the parties again discussed the Union's proposed
contract clause by clause, again without tangible result. This meeting also saw
the first discussion of wage demands when Helgesen informed the Respondent
that the Union was going to demand a wage increase and requested certain
information on job classifications and present rates in order to determine exactly
what its demands would be.' By the end of this meeting the Respondent had
agreed to the clause in the Union's proposed contract granting the Union reason-
able use of the bulletin boards and had further agreed "in principal" to a few
other similar demands.
The Respondent presented an agenda calling for a cessation of the strike and
a return to work before any further negotiations be had on the contract at the
next meeting held on September 18, 1951. The Union rejected the agenda, and
the meeting became largely a repetitious discussion of returning the strikers to
work except that on this occasion the Respondent agreed to reinstate all the
strikers which Helgesen rejected saying, in substance, "no contract, no work."
Then the question arose as to what jobs and at what rate of pay the strikers would
return. It developed in this discussion that since the beginning of the strike,
the Respondent had by unilateral action without notice to or discussion with the
Union, granted a 10-cent across-the-board wage increase to the nonstriking em-
ployees. The Union refused to accept the Respondent's suggestion that all the
strikers return to work either at their old job classification or, if such jobs had
already been filled, at their old rate of pay. Upon learning of the unilaterally
granted wage increase, Helgesen claimed it to be an unfair labor practice and
threatened to file charges with the Board. After some discussion of that, Helge-
sen made the suggestion that the Respondent accept or reject each clause in the
Union's proposed contract and then the parties arbitrate before a prominent
industrialist the clauses which the Respondent had rejected. Phil Everist stated
that this was such a novel suggestion that he would have to put it before his
board of directors before accepting or rejecting it as he believed this proposal
to be beyond the scope of his authority.' The meeting broke up after this sug-
gestion. As Phil Everist himself testified concerning this and the other meetings
prior to December 5, 1951, the Respondent was taking an "adamant stand" against
making any concessions over and above its then practices.'
At the suggestion and instigation of the Respondent, the parties met again
on September 27 and September 28; at this time Respondent stated that it had
openings for all the strikers and that they would be paid "in the classification
that we carried them on the books"-i. e., the new rate of pay. The parties
again discussed the Union's proposal clause by clause without making any
appreciable advance towards the consummation of a contract. As Alfred testi-
fied, the Respondent had agreed only to the Union's use of the bulletin boards,
certain safety provisions, and one other (unremembered) contract clause. Al-
Part of the requested information was subsequently supplied by the Respondent and
written notice of the Union's wage demands was sent to the Respondent by letter dated
September 11, 1951.
° Phil Everist never thereafter notified the Union of the Respondent 's acceptance or
rejection of this suggestion nor, so far as the record discloses , even discussed the matter
with the board of directors . One might also query the seriousness of the suggestion made.
9 This was the last appearance of Helgesen as the Union 's spokesman . Alfred was
relieved as the Respondent 's spokesman after the October 24 meeting.
L. G. EVERIST, INC. 321
though requested to do so at most of the previous meetings, the Respondent had
submitted no counterproposal but again at this meeting promised to present one.
On October 2 and 3, J. H. Stocker, field representative of the C. I. 0., became
the Union's spokesman and again went over the Union's proposal, clause by
clause, with the Respondent which again failed to present its promised counter-
proposal. The Respondent orally did suggest that it would be willing to con-
tinue its then employment practices but the witnesses are in disagreement as
to whether the Respondent added the statement that it would never put those
practices into a written contract with the Union.' The return of the strikers
was again brought up but was rejected because there was no contract and be-
cause of difficulties as to whether the strikers were to return to their former
positions or whether their jobs were to be retained by the replacements.
On October 3 the Union filed a charge with the Board that Respondent had
refused to bargain.
At the meeting of October 24 and 25, much the same monotony was repeated
again except that the Respondent announced that it had a full complement of
employees and would only return the strikers to work "as needed" except for
Waupoose, whom the Respondent was anxious to have return as a shovel oper-
ator . On October 25, the Respondent presented a document headed "Proposal
of Employer L. G. Everist, Inc.," which, at the hearing, was referred to as a
"counterproposal." The first paragraph of the document stated : "The employer,
as a result of negotiations and bargaining meetings heretofore had, is agreeable
to contracting with the Union as follows." Then followed some eight numbered
paragraphs regarding recognition, hours of work, vacation, holidays, bulletin
boards, and safety and health, wherein the Employer agreed to accept all or
part of similarly labeled paragraphs in the Union's proposal. In its refer-
ences to seniority, the document stated that the Employer was willing to con-
tinue the "present system in use at the quarry." The document further indi-
cated that the Employer was willing to accept the grievance procedure sug-
gested by the Union but without arbitration as the final step. The document
concluded as follows : "The employer is agreeable to signing a contract with
the Union which, except as above modified, continues present employment prac-
tices and working conditions at the quarry." After reading the document,
Stocker accused the Respondent of bad faith in making its counterproposal on
the ground that the proposal made no effort to solve the outstanding problems
between the parties, namely, seniority, arbitration, and the return of the strikers
to work. The meeting ended on this note.
b. Bargairving from December 5 to December 15
At the meeting of December 5, 1951, Phil Everist replaced Alfred as the Re-
spondent's spokesman and expressed the opinion that he believed that the
parties should be able to settle their differences "without recourse to the courts."
He also stated that he would have the Respondent's then attorney, May, draw up
a counterproposal to be submitted to the Union at a meeting which was then
scheduled for December 12.
On December 12 the Respondent gave the Union copies of its proposed con-
tract which Phil Everist had drawn up in the interim and which Attorney
May had looked over. The meeting was delayed for an hour or more while the
Union studied the proposed agreement. Sam Angoff, an attorney from Boston,
Massachusetts, was the Union's spokesman at the meeting. The afternoon bar-
gaining session disclosed that the proposed contract with its attached wage
9 The undersigned does not believe it necessary to a decision in this case to determine
this conflict in the testimony.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scale was acceptable to the Union but the Union pressed the Respondent to grant
4 paid holidays and to provide arbitration as the final step in the grievance
procedure. With these 2 requests before them undecided, the parties recessed
for dinner.
During this recess, Phil Everist telephoned to his older brother, L. G. (Gar-
land) Everist, who was president of the Respondent although then working
for another family corporation at Wichita, Kansas, and informed Garland that
he had submitted to the Union a proposed contract on behalf of the Respondent
which had narrowed the area of disagreement and then gave him a resume of
the negotiations of that afternoon.10 According to this testimony, Garland
Everist warned Phil Everist to go slow in reaching an agreement and reminded
him that the board of directors would have to pass upon any agreement before
it could be executed.
After the parties had reconvened following the dinner recess, it was Phil Ever-
ist who proposed to the Union that the parties "split" the 2 remaining disputed
issues, i. e., that the Respondent would grant the 4 paid holidays and the Union
would abandon arbitration as the final step in the grievance procedure. Angoff
promptly accepted on behalf of the Union. Phil Everist thereupon stated that
he would have Attorney May type up new copies of the agreement with the
agreed upon addition regarding the holidays, submit the same to the board of
directors for approval, which he stated was a "mere formality" and a "courtesy"
as it was "all in the family," and would have the contract at the quarry office
at 8 a. in. on Saturday, December 15, when it would be formally executed. The
contract was to be executed on Saturday so that the strikers could return to
work on Monday. With this agreement to meet on Saturday to execute the
contract, the meeting of December 12 adjourned.
The Union appeared at the quarry office at 8 a. in. on Saturday, December 15,
as agreed, but neither Phil Everist nor the contract was there. The meeting
was thereupon delayed until 3: 30 p. in. that day at which time the Union
returned and was told by Phil Everist only that the board of directors had not
yet approved the contract but would do so "during the holidays." Phil Everist
suggested that the strikers return to work as agreed on Monday morning but
the strikers reiterated the statement made by Helgesen at an earlier occasion
that they would not work without a contract and, therefore, refused to return
to work until the contract was executed.
The following appears in the minutes of the "Special Meeting of the Board of
Directors of L. G. Everist, Inc.," held December 28, 1951, at Sioux City, Iowa:
The Secretary [J. P. Everist] then reported that he had arrived at a tenta-
tive understanding with the C. I. O. union at the Dell Rapids plant cover-
ing certain of the contract terms. Copies of these proposals drafted by
the secretary were presented to the meeting. It was explained that there
were other matters remaining yet to be negotiated before a final report
could be made. Discussion ensued in which the concensus of the Directors
was that the proposals as presented to the Board by the Secretary were not
acceptable and the Secretary was directed by the President to resume nego-
tiations with the Union when requested in order to arrive at an agreeable
contract. The discussion particularly reflected opposition to the principal
10 On this point there is apparent disagreement between Phil and Garland Everist
because Phil's testimony indicated that be had neither given his brother the substance
of the counterproposal nor a resume of the negotiations while Garland's testimony dis-
closed that the telephone conversation covered both points. In view of the timing of
this telephone conversation, it is difficult to believe that both points were not discussed
between the brothers and the undersigned so finds.
L. G. EVERIST, INC. 323
of seniority in the light of the experience of the construction end of the
business.
The minutes of the director's meeting of the Respondent held on January 10,
1952, in Sioux City, Iowa, disclosed the following :
The Secretary reported that he was being urged to execute an agreement
with the C. I. O. Union at Dell Rapids similar to that discussed at the Board
Meeting December 28, 1951. After discussion the majority of the Board
directed the Secretary to continue negotiations and attempt agreement along
the lines discussed by the Board at the prior meeting. The Secretary was
further directed to report progress on this matter at the next Board meeting."
Subsequently, the Union was informed that the board of directors had rejected
the agreement without specification of the Board's objections and without the
presentation of acceptable substitutes.
c. Negotiations subsequent to December 15, 1951
About January 2, 1952, J. P. Everist was still telling Smart that although the
board of directors had taken exception to a couple of articles in the agreement
of December 12, he thought it would be ready for execution soon.
On January 10, at a meeting arranged by the General Counsel, Everist finally
told Smart that the contract was objectionable to the board of directors. He
amplified this by stating that the board of directors objected to granting the
Union "exclusive representation" in view of the fact that only 8 men remained
on strike and that the Respondent no longer considered those 8 to be employees.
At this or a slightly later meeting, J. P. Everist amplified further by stating that
the board of directors desired the contract to have a termination clause making
the agreement terminable at the will of either party upon 60 days' notice or else
they wanted the termination date to coincide with the certification date, July
20, coupled with a clause whereby the Union agreed to the holding of another
election immediately after July 20 in order to prove its majority representation.
The Union rejected these demands maintaining that the parties already had
a contract.
11 The testimony of the members of the board who testified at the hearing, L G Everist,
J P. Everist, and T. S. Everist, regarding the discussion of the members of the board at
these meetings was noteworthy for its extreme vagueness and uncertainty . It should be
particularly noted that none of these members of the board of directors recalled one
word of opposition to the inclusion of the clause granting the Union 4 paid holidays.
The testimony of those three members of the board regarding the objections of the
board to the contract of December 12 was most revealing . Beyond testifying that the
board had objected to the contract clause on seniority , T. S. Everist could recall nothing,
his answers to other questions being a mere reiteration that he could not remember. J. P.
Everist who wrote the board minutes was also unable to recall anything over and beyond
the statement in the minutes On the other hand, Garland Everist recalled that he
had objected to the "form" of the agreement and had advised the adoption of the "form"
of two labor agreements in use in the construction industry which he produced at the
bearing. At his counsel 's suggestion , Garland Everist later amended the objection he
had voiced to the contract of December 12 at the meeting of the board to include the
"contents" of the agreements . Also at his counsel's suggestion , he voiced the "fear" that
the recognition clause of the December 12 agreement might have been interpreted to
include other of Respondent's plants than Dell Rapids. The triviality and sincerity of
these objections became apparent when it was noted that the contract of December 12
specifically mentioned the employees at the Dell Rapids quarry on the line preceding the
recognition clause and when on cross -examination , after acknowledging numerous clauses
in the construction industry agreements which were totally inapplicable to the quarry
operations, Garland Everist finally acknowledged that he was not sufficiently conversant
with the contents of any of the agreements to discuss them intelligently.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter both Smart and J. P. Everist left town for a considerable period
after which Smart met with Attorney John Burke who made it clear that he
had no authority to bargain for or bind the Respondent and was only doing
"spade work" for subsequent meetings between Smart and Everist. During sev-
eral meetings with Burke, it developed that the board of directors had voiced
opposition to the clause granting the Union use of the bulletin boards at the
plant, one of the very first and very few points conceded by Alfred.
It was during one of these meetings in February or March 1952 between Smart
and Burke that Burke notified the Union that the board of directors then ob-
jected to giving any paid holidays to the employees. This was the first and only
time that the Union was ever notified of any such objection to the 4 paid holiday
provision.
There was also some discussion of job -to-job transfers of employees and of
seniority. During this discussion a difference in interpretation of the seniority
provisions of the December 12 agreement was discovered.
Although Burke agreed to submit another counterproposal, none was ever
presented.
On March 27, 1952, the Union called off its strike and the remaining strikers
returned to work. The parties have held no further meetings since then.
2. Conclusions as to the refusal to bargain
a. From August 7 to December 5, 1951
In this section of the report the undersigned proposes to discuss the good faith
of the Respondent 's bargaining during the 3 different periods here involved. As
indicated throughout, the bargaining here can be divided into 3 different and
distinct periods: (1) From August 7, the first meeting, to December 5, 1951; (2)
the sessions of December 5 and December 12, 1951, together with the subsequent
action of the board of directors ; and (3 ) the meetings thereafter.
The Respondent points to the facts that: (1) It agreed that the unit appro-
priate for collective bargaining at its Dell Rapids quarry consisted of all pro-
duction and maintenance employees at the Respondent 's Dell Rapids, South
Dakota, operations, excluding all office and clerical employees, watchmen and
guards, professional and supervisory employees as defined by the act; (2) it
agreed to the holding of a consent election under the auspices of the Regional
Office which resulted in the selection and the certification of the Union on July
20, 1951, as the exclusive representative of the employees in that unit; (3) it
met and discussed the proposed terms of a labor agreement with the Union on
13 or more occasions thereafter; and (4) submitted counterproposals as positive
proof that the Respondent was bargaining in good faith throughout the whole
course of the negotiations.
In accord with these admitted facts, the undersigned finds: (1) That all pro-
duction and maintenance employees of the Respondent 's Dell Rapids, South
Dakota, operations, excluding all office and clerical employees, watchmen and
guards, professional and supervisory employees as defined by the Act constitute
the unit appropriate for collective bargaining as defined in Section 9 (b) of the
Act; and (2) that on and since July 20, 1951, the Union was and now is the duly
certified exclusive representative of the employees in the above-found appropriate
unit in accordance with Section 9 (a) of the Act
The Respondent's contention, so far as it goes, is well taken, for the Respond-
ent did consent to an election, and did meet and discuss a proposed labor con-
tract with the Union on numerous occasions and even submitted counterpro-
L. G. EVERIST, INC. 325
posals. In fact it instigated at least one of these meetings. These facts do
indicate a willingness on the part of the Respondent to bargain with the Union
as required by law.
But there is other and further evidence on the question of the Respondent's
good faith to be found in the record, among which are the following :
1. J. P. Everist's appointment of Alfred as the Respondent's negotiator "to
lead off with"-could this be some slight indication that, even before the event,
the Respondent anticipated a long drawn-out negotiation necessitating more than
one spokesman for the Respondent?
2. The Respondent's invitation "to all hands" to attend the opening negotiating
meeting-both the courts and the Board have frowned upon this practice as
having a tendency to either destroy or disrupt the friendly relationship and
orderly procedure so necessary to successful negotiation. In this case it resulted
in the total collapse of bargaining and the institution of a strike which caused
the introduction of a number of irrelevant and unnecessary issues relating to
the concluding of the strike and the returning of the strikers to work, thus
unnecessarily complicating the whole negotiations. Could this have been the
intent of the Respondent's invitation?
3. Respondent's objection to granting the Union recognition as the "exclusive"
representative of the employees for collective bargaining-as pointed out to the
Respondent at the time this objection was originally voiced, the law requires such
recognition. The Respondent's original objection to such recognition could be
explained by the inexperience of its negotiator but that would not account for the
reiteration of that same objection of later meetings. Could it be that the
reiteration of this objection thereafter was for the purpose of obstructing the
negotiations?
4. The Respondent's illegal act in discharging four union leaders for their
participation in the strike (as is found hereinafter)- although denied, there is
credible evidence in this record to the effect that subsequently Alfred admitted
that these discharges were a mistake caused by anger. Could this retaliation by
the Respondent against the union leadership for having had the temerity to
engage in concerted activity have had as its purpose to show the remaining
employees that they should abandon their demand for collective bargaining
because of the dangers to their economic security by pursuing the opposite
course?
5. The Respondent's original demand that the strike be settled and the
employees return to work prior to the resumption of negotiations-although the
Respondent quickly receded from this unlawful position, could it indicate a
desire on the part of the Respondent to prevent collective bargaining by any
means available to it?
6. The Respondent's unilateral grant of a 10-cent across-the-board pay increase
of September 10, 1951, to the nonstriking employees without notice to or consulta-
tion with the Union although knowing full well that a wage increase was to be
discussed with the Union in the immediate future-under the circumstances here
involved such a pay increase without notice to or consultation with the Union has
been universally held by the courts and the Board to constitute cogent evidence
of bad faith in the negotiations as an effort to undermine the Union.
7. The Respondent's original offer to allow the strikers to return to work at
their old job classifications and old wage scale-as the Respondent had unilat-
erally increased wages by 10 cents by this time, this offer amounted to a 10-cent
reward to the nonstrikers and a 10-cent per hour economic reprisal against the
union members for having engaged in concerted activities. Such an obviously
257965-54-vol . 103-22
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory act could only have the effect of stalemating the negotiations.
Could the Respondent have had any other purpose?
8. The Respondent 's adamant stand against making any concessions to the
Union-J . P. Everist himself described the Respondent 's policy at this time in
the following terms: "We [the Respondent ] took an adamant position on yield-
ing any concession to the demands of the Union other than what was currently
in effect and taking place in the quarry ." Does this sound like the hypothetical
reasonable man ready and willing to reach a mutually satisfactory agreement?
9. The Respondent 's solicitation of individual strikers to return to work during
the strike with, in one case at least, a promise of a better job . See James Thomp-
son and Co., Inc., 100 NLRB 456, where it is held that such solicitation of indi-
vidual strikers indicates a desire to bargain with the employees individually,
thus completely negating the principle of collective bargaining . Indeed Re-
spondent 's attempt to treat the strikers as applicants for employment was also
coercive and illegal.
10 The Respondent 's failure and refusal to submit a bona fide counterproposal
during this period-while the amended Act does not require the making of con-
cessions , it is still the universal holding of cases before the courts and the Board
that a Respondent 's refusal to make a counterproposal is cogent evidence of a
lack of good faith on the part of that Respondent . Here, although requested at
numerous meetings , the Respondent failed to offer a counterproposal , despite
many promises to the contrary , until the meeting of October 25, 1951 , and the
so-called "counterproposal" then presented amounted to no more than a state-
ment in writing that the Respondent was willing to accept certain clauses, or
portions thereof, in the Union 's proposal plus an offer to reduce the Respondent's
present practices to writing . Thus to the end of this period ( for no meetings
were held between October 25 and December 5), the Respondent continued its
same adamant course.
It is thus clear from a summary of the evidence that, despite the incidents
cited by the Respondent , the evidence taken as a whole points conclusively to
the conclusion that after the consent election had been won by the Union, the
Respondent employed every tactic known to it to prevent the consummation of
an agreement with the Union short of refusing to meet and confer. Thus on
the evidence presented of the bargaining from August 7 to December 5, 1951, a
finding would be impelled that the Respondent never did bargain in good faith
with the Union during this whole period and that the Respondent violated Section
8 (a) (5) of the Act by refusing to bargain in good faith during this period.
In conformity with this conclusion , the undersigned must also hold that,
although being of the opinion that the Union reached its conclusion that the
Respondent was refusing to bargain too hastily after noting the invitation to the
employees to attend the bargaining sessions , the strike of August 16, 1951, was
caused and prolonged by the unfair labor practices of the Respondent.
b. Negotiations of December 5 to December 15
When J. P. Everist replaced the Respondent's "leadoff" negotiator on December
5, the negotiations underwent a decided change for the better from his opening
suggestion that he thought the parties could settle their differences "without
recourse to the courts ." Everist then offered to prepare a counterproposal and
submit the same to the Union at a meeting on December 12.
Everist prepared and submitted to the Union the Respondent 's counterproposal
on December 12 as promised . This counterproposal was a real counterproposal,
dealing with all the issues and in such form as to be executable instanter. The
L. G. EVERIST, INC. 327
proposal was acceptable to the Union except that the Union desired to include
clauses granting 4 paid holidays and concluding the grievance procedure with
arbitration . At this point in the negotiations the parties recessed for dinner
during which time J . P. Everist telephoned his brother, L. Garland Everist,
Respondent 's president , in Wichita, Kansas, where he was then stationed while
working for another family corporation. When the negotiations resumed that
evening, J . P. Everist , himself, suggested "splitting" the 2 union suggestions,
with the Respondent accepting the union suggestion of 4 paid holidays and the
Union dropping its claim for arbitration . Attorney Sam Angoff of Boston,
Massachusetts, the spokesman for the Union, accepted the compromise proposed
by the Respondent. Following this acceptance, J. P. Everist stated that he
would have to secure the approval of his board of directors to the contract agreed
upon but explained that this was a "mere formality" and courtesy as it was "all
in the family" and would be arranged so that the contract could be formally
executed on Saturday, December 15, at 8 a. in. in order that the strikers could
return to work the following Monday, in accordance with the arrangements
already made on that point.
As found heretofore, the board of directors subsequently rejected the contract-
not on account of the 4 paid holidays-but on account of a matter which was
contained in the Respondent's own proposal. Consequently, the parties have never
executed the contract.
Thus, this portion of the case raises the very simply stated problem of whether
the Respondent was bargaining in good faith when it repudiated its own counter-
proposal made and offered by its own duly accredited representative at the nego-
tiations after the acceptance of that proposal by the Union.
The issue can be stated as simply as that because the clause granting the
4 paid holidays was the only portion of the whole agreement submitted to and
rejected by the Respondent's board of directors which had not originally been
offered by the Respondent 's duly authorized representative and because the testi-
mony affirmatively shows that the board of directors took no exception to the
4 paid holidays at least until March 1952 as it objected only to the seniority
clause and to the "form " of the contract , matters proposed by its own repre-
sentative. Thus, the Respondent's only objection was to the terms of its own
counterproposal proposed by its own representative.
Consequently it appears from the facts of this case that either (1) the Re-
spondent's duly accredited representative at the negotiation was not authorized
to "effectively bind" the Respondent at the negotiations , or (2) the Respondent
repudiated its own offer after its acceptance by the Union. In either event, the
Respondent convicted itself of having failed to bargain in good faith during this
phase of the negotiations.
It is axiomatic and has always been a requirement of good-faith bargaining,
insisted upon by both the Board and the courts , that each party must be repre-
sented at the negotiations by a duly accredited representative authorized to
"effectively bind" his principle . If the law were otherwise , the requirement of
the obligation to bargaining in good faith would be completely nullified. If,
therefore , the board of directors rejected the contract proposed by J. P . Everist
on the ground that he was not authorized to effectively bind the Respondent,
then it is clear that, during all of the negotiations from August through Decem-
ber, the Respondent was never represented at the negotiations by a representative
having the requisite of authority required by good -faith bargaining and that the
Respondent had never been bargaining in good faith during these negotiations.
On the other hand, if the board of directors rejected the contract proposed
by its own duly accredited representative on the ground that it disapproved of
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the terms its representative had thus offered to the Union, then in the absence
of a showing of fraud or mistake of which there is a complete lack of either claim
or evidence in this case, the Respondent was bound by its own offer made by its
own agent within the scope of his authority. Thus the Respondent has again
convicted itself of refusing to bargain by reneging on its own offer.32
In its brief the Respondent contended that the making of Respondent's counter-
proposal was proof of its good faith. The brief then argued : "We submit that
no dissatisfaction and rejection by the directors such as this can form the basis of
any claim of bad faith bargaining. Elgin Standard Brick Manufacturing Co.,
1950, 90 NLRB 1467, 26 LRRM 1343. If it can, a similar violation is committed
every time a contract which has been negotiated is rejected by a vote of the
union membership since the obligation to bargain in good faith is a mutual one
under the amended Act."
A little analysis proves this to be an "Eat your cake and have it too" argument.
If the offer made by its duly accredited agent within the scope of his authority
was bona fide and indicative of Respondent's good faith, then the Respondent's
board of directors had no authority to repudiate it, especially after the Union had
accepted it.
Although the Trial Examiner in the Elgin Brick case wrote some dicta,
accepted sub silentio by the Board, to the effect that the company's negotiators
there did not lack the authority required for good-faith bargaining because their
authority was equal to that of the union's negotiators, he found, however, that
upon tentatively agreeing upon a compromise over the conference table, the
negotiators had the right to refer the compromise to their respective principals,
the board of directors and the union membership, for final decision.
But the Trial Examiner there did not deal with the problem here involved.
Whether the board of directors has the power to repudiate an offer or counter-
proposal made on its behalf by its own duly authorized representative acting
within the scope of his authority, especially after that offer or counterproposal
had been accepted by the Union. If that is possible, then we reach the anom-
alous situation where a subsequently repudiable offer proves a party's good
faith in bargaining and, as a corollary, where the subsequent rejection of the
agent's offer does not indicate either bad faith on the part of the principal nor a
lack of the requisite authority in the negotiator. Under ordinary common law
rules of the law of contracts a principal is bound by offers made on his behalf
by his duly authorized agent acting within the scope of his authority. No reason
is seen why the rules should be otherwise in collective bargaining.
Another and a different question would be raised if the proposal rejected by
the board of directors had been made by the Union, rather than by the respond-
ent, or if it had been a compromise worked out by the negotiators during collective
bargaining . In either of these events the undersigned would be inclined-but
without so deciding here-to believe that the negotiators would be perfectly
within their rights to refer the matter to their principals for ultimate decision.
But where, as here, an offer or contract proposal is made by one party, it is only
ordinary good business judgment that the offerer made sure in advance of making
the offer or proposal that the offer will be acceptable to itself if accepted. Other-
wise, offers could be made at will only to be repudiated later if accepted by the
other side. Such was not permissible under ordinary contract law and no reason
is seen why the rule should be different in labor contract negotiations. If the
rule were otherwise, the negotiations would be interminable. If, therefore,
J. P. Everist, the Respondent's duly designated negotiator, had the requisite
12 Hillsboro Cotton Mills, 80 NLRB 1107.
L. G. EVERIST, INC. 329
authority to bind the Respondent effectively as good-faith bargaining requires,
the Respondent was conclusively presumed to have authorized the offer or coun-
terproposal made by him and its subsequent repudiation thereof is per se proof of
the Respondent's refusal to bargain.
Thus the evidence here that J. P. Everist himself drafted the counterproposal
of December 12 without consultation with or subsequent ratification by the
board of directors indicates a complete absence of ordinary business care and
thus a breach of good faith in the negotiations. However, it is undisputed that
J. P. Everist did consult by telephone with Respondent's president during the
recess between the sessions of December 12, though, as noted heretofore, there
is some disagreement between the brothers as to the subject matter of and the
extent of that conversation. Thus, if it were necessary to a decision in this case,
the undersigned believes that the facts of this case show that the Respondent
authorized or ratified the making of the counterproposal but, after the acceptance
of that offer by the Union, repudiated its own offer in order to prevent the
consummation of an agreement with the Union. Regardless of this and regardless
of exactly what limitations, if any, J. P. Everist stated there were to his authority,
it was incumbent upon the Respondent to conduct its negotiations with at least
that degree of care which it would exercise in the conduct of its ordinary business
transactions. It is obvious that the Respondent did not do so in this case.
The Respondent's testimony at the hearing and its argument in its brief tacitly
admits the above for the argument is there made that no complete integrated
contract was ever arrived at during the negotiations because (1) various terms
of Respondent's counterproposal were not discussed during the negotiations of
December 12;' (2) the Respondent's wage scale which indicated three different
wage rates in many categories dependent upon the "grade" classifications of the
employee failed to indicate any method of progression from one grade to another,
and (3) because subsequent conferences disclosed a misunderstanding between
the parties as to the meaning of the seniority clause proposed. The short
answer to all these contentions is, first , that there is no requirement that every
clause of an offer be discussed in order for there to be a meeting of the minds
and a contract consummated and, second , that the grievance procedure is pro-
vided expressly for the purpose of determining all questions regarding the
application and interpretation of a labor agreement. The fact is that the parties
did agree upon a complete, integrated contract on December 12, 1951, on terms
offered by the Respondent and accepted by the Union.
Under the facts presented here, the undersigned finds that the act of the board
of directors in repudiating its own counterproposal after its acceptance by the
Union conclusively proves a lack of good faith on the part of the Respondent in
the negotiations and constitutes a per se refusal to bargain in violation of Section
8 (a) (5) of the Act.
The undersigned further finds that, coupled with this per se violation of
Section 8 (b) (5), the whole course of bargaining from August 15, 1951, includ-
ing Respondent's invitation to all hands to attend the negotiating meetings, its
unilaterally granted wage increase during the negotiations without notice to or
consultation with the Union, its discharge of four union leaders on the picket line,
and its attempted discriminatory treatment between strikers and nonstrikers,
its attempt to deal individually with the strikers, proves that the Respondent
entered the negotiations on August 15, 1951, intending that no agreement should
ever be arrived at and thus the Respondent failed and refused to bargain in
18 This claim , however, does not coincide with the testimony of Respondent's own
witnesses.
14 This matter was also discussed.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good faith from the very inception of the negotiations in violation of Section
8 (a) (5) of the Act.
c. Subsequent negotiations
The meetings between the parties following the repudiation by the board of
directors of its own proposal and agreement of December 12 serve only to
strengthen the above findings. The Respondent, having noted the successful
operation of its 6-month long unfair labor practice of refusing to bargain in
reducing the number of pickets to eight employees, promptly reiterated its illegal
objection to granting the Union "exclusive" recognition on the ground that the
Union had so few members. That proving unsuccessful, Respondent demanded
that the contract, if signed, be terminable at the will of either party. Respond-
ent's final suggestion along this line was, of course, a 4-month contract extending
to July 20, 1952, on condition that immediately thereafter the Union submit to
another representation election to prove its majority status among the then
employees. The obvious purpose of each of these suggestions was the prompt
elimination of the Union before the effects of its own unfair labor practices upon
the employees had been dissipated. By thus eliminating the Union, Respondent
would also have eliminated the legal necessity of having to bargain with it.
Respondent's suggestions during this period only confirm its intention not to
bargain with the Union and it is so found.
3. The discharges of Robert Waupoose , Casper Adams, Leopold Jascot, and
Leo Groos
As heretofore found, the Union began picketing the Respondent's quarry about
5 a. in. on August 16, 1951, as a result of the Respondent's invitation to "all
hands" to attend the bargaining sessions between the Respondent and the Union.
Waupoose, the union president ; Jascot, its secretary-treasurer and member
of the negotiating committee; Groos, one of its trustees; and Adams, a member
of the negotiating committee, were all on the picket line with other employees
beginning on August 16. Sometime after 9 a. in. on August 17, 1951, Robert C.
Alfred, Respondent's production manager, handed Waupoose, Jascot, and Adams
discharge checks for wages earned and informed each that he was "all through"
or "discharged" while each was on the picket line before the Respondent's
entrance gate. On August 20, Alfred discharged Groos as Groos got out of his
automobile at the picket line after first having asked Groos if he would take a
"boss job" with the Respondent and having received no answer" Each check
which Alfred handed out on these various dates as heretofore found bore the
date "August 16, 1951" in the handwriting of Respondent's bookkeeper, John
Hirning, who testified that he was ordered by Alfred to make out three of these
checks on August 16 and to make out the Adams' check on August 17 prior to
the time when he, Alfred, and Sheriff Barney Boos went to the Dell's Cafe for
coffee about 8: 30-9 a. ,m. that day.
The Respondent relied upon three episode, as ju,4tification for these discharges.
It was testified that on Aug'ist 16 between 8: 30 and 9 a in., one Orville Bus-
kerud 19 drove a dump truck of his then employer to the entrance of the Respond-
ent's plant which allegedly was blocked by Groos and Jascot standing in front
15 Alfred denied having asked Groos if he would take a "boss job" with the Respondent.
Although the undersigned found Alfred, as well as Groos, to be a truthful appearing
witness, he has resolved this credibility conflict against Alfred because of certain rather
glaring inconsistencies in the Respondent's testimony, including Alfred's, as will appear in
the findings.
16 On August 25, 9 days after the episode, Buskerud became the Respondent's pit fore-
man, a position lie was still holding at the time of the hearing
L. G. EVERIST, INC. 331
of the approaching truck with Waupoose and other employees standing nearby. It
was further testified that those two individuals along with Waupoose warned
Buskerud that if he went in the gate and got a load of rock, they would "make
it tough for him" on the way out, that "trucks had been tipped over and windows
had been broken" and "that would happen to me if I went in and got loaded and
came back out again." 1T Only Bookkeeper Hirning witnessed this episode but
reported it to Alfred later that day. According to Hirning, he was ordered to,
and did at that time, make out and deliver to Alfred the discharge checks for
Waupoose, Jascot, and Groos.
Alfred testified that about 7: 30 a. m. August 17, he was at the plant and saw
Waupoose and Adams on the picket line join hands in front of that entrance to
the plant and force nonstriking employee Orville Beckman to stop his automo-
bile as he was about to drive into the plant, and that he told Adams and Waupoose
that he did not want any trouble and that when Sheriff Boos spoke to them,
the men permitted Beckman to pass. Boos testified to much the same state of
facts except that he saw 4 men who had joined hands, none of whom he was
able to identify. Beckman testified similarly except that there were only 2 men,
Adams and Waupoose, who did not join hands but that either that day or the
day before Adams did warn him that he "had better drive an older car tomor-
row, we are going to get rough." Thereafter Beckman drove to and from the
plant without incident.
The Respondent learned about the third episode upon which it relied while
Alfred, Hirning, and Sheriff Boos were drinking coffee at the Dell's Cafe between
8: 30 and 9 a. in. on August 17. At that time one William R. Woodhouse, the
Standard Oil agent for the district, reported to them that he had been flagged
down on the Jaspar Road as he was passing that entrance to the Respondent's
property by Jascot and Groos who told him "Well, if I was you, I wouldn't be
going in.-If you do go in, you may find your hose cut in pieces." At the hearing
Woodhouse testified that this episode occurred on the first day of the strike but
in an affidavit given to a Board agent on November 28, 1951, he stated that the
episode occurred either on the first or second day of the strike, either August 16
or August 17. Sheriff Boos disagreed with the other 3 witnesses to the episode in
the Dell's Cafe by testifying that the names of the pickets involved at Jaspar Road
had not been mentioned in Woodhouse's report. It is also clear from the testi-
mony of Hirning that he had prepared all 4 discharge checks at Alfred's request
before going to the Dell's Cafe so that this report had little, if anything, to do
with the discharge of the 4 men despite Alfred's testimony that he acted upon
this report in discharging the employees. However, Alfred distributed the dis-
charge checks to Waupoose, Adams, and Jascot on August 17 after his return to
the plant from the Dell's Cafe. Groos, however, did not receive his check until
August 20.
All witnesses admitted that, with the exception of the three incidents noted
above, the picketing of the Respondent's plant throughout had been peaceful and
without incident. No damage of any sort was done throughout the period of the
strike.
The discharge checks were all dated August 16, 1951, with check numbered 373
made to Groos, 374 to Waupoose, 376 to Jascot, and 374 to Adams. Although
Alfred's testimony indicates that he ordered all 4 checks made at the same time,
Hirning, the bookkeeper and co-signer of the checks, testified that on Alfred's
orders he made out and delivered to Alfred the first 3 checks on August 16 after
reporting the Buskerud incident to him but that he made and delivered the Adams
17 It is clear from a reading of the transcript that the witness , Buskerud , was far from
sure what , if anything , Waupoose had said to him that morning
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
check to Alfred on August 17 prior to the Dell's Cafe report from Woodhouse
which Alfred testified he relied upon in discharging the men. If you believe one,
then you cannot believe the other for one of them was mistaken. Hirning ad-
mitted that he had no explanation for the August 16 date on Adams' check. Yet
the first 2 discharged, Adams and Waupoose, were discharged and received their
checks on August 17 while Groos was not discharged nor given his check until
August 20 although the evidence proves Groos to have been the most active of the
4 in the incidents relied upon by Respondent. If all 4 checks were made upon
the 16th, then Alfred was relying solely upon the Buskerud incident which did
not involve Adams at all which in turn would corroborate the testimony that
during the strike Alfred admitted that he was angry about the strike and made
the mistake of discharging the 4 men. This would explain the date on the Adams
check and would also explain why Groos received his on August 20 after refusing
a supervisory job.
However, accepting this testimony at its face value, the testimony, in the
opinion of the undersigned, falls far short of proving that any of the 4 em-
ployees involved engaged in any such reprehensible conduct as to justify the
Respondent in refusing to reinstate them or, on the other hand, in discharging
them. This finding is made without any allowance having been made for the
obvious discrepancies in the Respondent's own testimony which, of course, would
only tend to strengthen the finding.
Indeed the Respondent's own conduct confirms this finding because, with full
knowledge of the aforerelated events, the Respondent first offered Groos a super-
visory position prior to discharging him ; because during the first part of the
strike the Respondent considered the offenses only serious enough to warrant a
60-day suspension of the employees and, as time passed, became willing to rein-
state all four of them immediately upon the cessation of the strike. Furthermore,
soon after the issue arose, the Respondent became anxious to reemploy Waupoose
because it desired his services as shovel operator. If the Respondent could see its
way clear to promote Groos and to reinstate Waupoose because of a desire for
their services, it is hard to see how logically it could maintain that the other
"offenders" were unsuitable as employees.18
The undersigned has little, if any, hesitancy in finding upon the facts presented
here that the Respondent discharged Waupoose, Jascot, Adams, and Groos on
August 17 and August 20 because of their known membership in the Union and
because they were prominent in concerted activities and picketing with their
fellow employees and in order to discourage membership in the Union in violation
of Section 8 (a) (3) and (1) 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 commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of the Act.
1$ See Longview Furniture Company, 100 NLRB 301.
L. G. EVERIST, INC. 333
It has been found that the Respondent refused to bargain in good faith with the
Union from the inception of the negotiations and it has further been' found that
the Respondent through its board of directors , in addition to and in conformity
with its determination to refuse to bargain with the Union , repudiated the offer
and the agreement duly made on its behalf by its authorized representative on
December 12, 1951 , and has refused to execute the same after said agreement had
been accepted by the Union.
The latter feature of this case , to wit, the repudiation of a consummated agree-
ment, differentiates this case from the usual and ordinary refusal -to-bargain case
and renders the customary order to the Respondent to bargain upon request com-
pletely inadequate here. The customary purpose of an order in an unfair labor
practice case is to effectuate the policies of the Act by restoring the parties to the
status they would have enjoyed absent the unfair labor practices . In the instant
case the Respondent and the Union arrived at a mutually satisfactory agreement
on December 12, 1951, which would have been executed and in full force and effect
on December 15, 1951, but for the unfair labor practice of the Respondent in
repudiating the agreement offered by its duly authorized representative on its
behalf and accepted by the Union prior to such repudiation . As the parties there-
fore had reached their own agreement but for Respondent 's unfair labor practice
of repudiation , an order to Respondent to bargain upon request is both a futile
and unnecessary gesture and further would only serve to sanction Respondent's
unfair practice by depriving the Union of the benefits of the contract it consum-
mated with Respondent prior to the Respondent 's subsequent unfair labor prac-
tice of repudiation . In other words any order which fails to recognize the
consummation of the agreement of December 12, 1951, fails to restore the status
quo and in effect permits the Respondent to enjoy the fruits of its own unfair
labor practice.
Therefore , the undersigned will recommend that the Respondent execute the
agreement reached on December 12, 1951, as of the date it had been agreed the
document would be executed , to wit, December 15, 1951, and that the Respondent
immediately put the terms of said agreement into full force and effect at its Dell
Rapids, South Dakota, plant as of December 15, 1951, except that, if in the interim
the Respondent has increased the wage rates over those stated in said agree-
ment, the higher wage rates granted by Respondent are to remain in effect and
not be reduced to those contained in the agreement. If, on the other hand, the
wage rates, or any of them , paid by Respondent subsequent to December 15,
1951, were less than those of the agreement , then the wage rates of that agree-
ment are to be made retroactive to December 15, 1951, by payment to the em-
ployees of that sum of money which each would have earned if the rates of the
agreement had become effective on December 15, 1951, less that which each earned
under the rates actually paid.
It has been found that the Respondent , on August 17 and August 20, discrimi-
nated in regard to the hire and tenure of employment of Robert Waupoose,
Casper Adams , Leopold Jascot, and Leo Groos , by discriminatorily discharging
or laying off each of them in order to discourage membership in the Union. The
undersigned will, therefore , recommend that the Respondent immediately rein-
state each of the aforementioned individuals to his former or substantially
equivalent position without any loss of seniority or other rights and privileges
and that it make each of the aforementioned employees whole for any loss of
pay which he may have suffered by reason of the Respondent's discrimination
against him by payment to each of them of a sum of money equal to the amount
he normally would have earned as wages computed at the rates stated in the
agreement of December 12 or at the actual rates paid , whichever is the higher,
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from December 17, 1951, the date he would have been returned to work except
for the Respondent's illegal refusal to bargain by refusing to execute an agree-
ment offered by its duly accredited representative, to the date of his reinstate-
ment less his net earnings during said period to be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289. It is also recommended
that the Respondent be ordered to make available to the Board, upon request,
payroll and other records to facilitate the checking of the back pay due.
Upon consideration of the record as a whole, the undersigned is convinced that
the Respondent's conduct in employing the many techniques it did in order to
try to prevent the unionization of its employees indicates an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife which burdens and obstructs commerce, and thus effectuate the policies
of the Act, it will be recommended that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed the employees in Section
7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, C. I. 0, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent's Dell Rapids,
South Dakota, operations, excluding all office and clerical employees, watchmen
and guards, professional and supervisory employees as defined by the Act, consti-
tute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. At all times since July 20, 1951, the Union has been and now is the
exclusive representative of all the employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the meaning of Section 9 (a)
of the Act.
4. By failing and refusing on and at all times since August 15, 1951, and
by repudiating the agreement arrived at by its duly accredited representative
on December 12, 1951, to bargain collectively with United Stone and Allied
Products Workers of America, C. I. 0., as the exclusive representative of
the employees in the aforesaid unit, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5)
of the Act.
5. By discharging and otherwise discriminating in the hire and tenure of
employment of Robert Waupoose, Casper Adams, Leopold Jascot, and Leo
Groos, thereby discouraging membership in United Stone and Allied Products
Workers of America, C. I. 0., the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]