Maphis Chapman Corp.

National Labor Relations Board - Board Decisions

Feb 16, 1965

151 N.L.R.B. 73 (N.L.R.B. 1965)

MAPHIS CHAPMAN CORPORATION 73
Maphis Chapman Corporation and International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO. Case No. 5-CA-757. February 16, 1965
DECISION AND ORDER
On October 19, 1964, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 attached
Decision. Thereafter, the Respondent filed exceptions to the Decision
and a supporting brief. The General Counsel filed cross-exceptions
and a brief in support thereof, and the Respondent filed an answer-
ing brief thereto.
Pursuant to the provisions of Section 3(c) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision,
the exceptions, the cross-exceptions, and the briefs, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications.'
Unlike the Trial Examiner, we find that the Respondent laid
off employee Keith Lucas on December 13, 1963, because of his
union activity, in violation of Section 8(a) (3) and (1) of the Act.
The Respondent is engaged in the manufacture and distribution
of oil tanks of all sizes. The nature of its business is cyclical and
its peak season runs each year from about May 1 to the end of
November or mid-December. The Respondent's practice in reduc-
ing its work force at the end of the season is first to fill the vacancies
in the ranks of the permanent employees from among the temporary
employees and then to lay off the remaining temporary employees.
Lucas was hired in October 1962 as a helper. He remained in
the Respondent's employ during the Respondent's 1962-63 slack
season, and in September 1963 he was promoted to the job of
assembler and received an increase of 10 cents an hour. As
1 We correct the following inadvertent errors in the Conclusions of Law and Remedy
in the Trial Examiner's Decision: The Respondent initially refused to bargain with the
Union on October 31, 1963, and not on October 29, 1963, and the Union became the
exclusive representative of employees in the unit on October 28, 1963, and not on Octo-
ber 29, 1963.
151 NLRB No. 16.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described more fully in the Trial Examiner's Decision, the Union
commenced efforts to organize the Respondent's employees on Octo-
ber 3, 1963, and on October 5 and 17, 1963. After unlawfully inter-
rogating and threatening employees with reprisals for engaging in
union activities in violation of Section 8(a) (1) of the Act, the Re-
spondent discharged nine employees, including Lucas, because of their
union adherence. On October 23, 1963, on the advice of counsel, the
Respondent wrote to certain of the-discriminatees, including Lucas,
recalling-them to work. Lucas returned to work on October 25, 1963,
at which time he received an increase of 5 cents per hour.. Lucas
was thereafter laid off on December 13, 1963.
The Trial Examiner, relying chiefly on the testimony of General
Manager McEnerney that the Respondent considered Lucas to be a
temporary employee and that he was selected for layoff solely for
that reason, concluded that the General Counsel had failed to prove
that Lucas was included in the December 13 layoff for discriminatory
reasons. We do not agree. In the first place, McEnerney's testi-
mony, regarding the employment status of Lucas, and the reason for
his separation was contradicted by his testimony in the representa-
tion case,2 which was made a part of the record herein. Thus,
McEnerney testified at the representation hearing that Lucas was a
permanent employee, but that the Respondent terminated him on
December 13, 1963, because his work was not as satisfactory as that
of other employees. McEnerney's testimony at the representation
hearing that Lucas was a permanent employee is supported by the
fact that he was employed in October 1962 and worked continuously
thereafter, including the period of the 1962-63 slack season.3 Nor
did the Respondent present evidence to show that, as McEnerney
claimed at the representation hearing, Lucas was an unsatisfactory
employee or that he was warned that his work was below standard.
On the contrary, in September 1963 Lucas was promoted and received
a pay increase, and in October 1963 he received a further increase.
Also significant in appraising whether Lucas was discriminated
against are the facts that Lucas has been found herein to be one of
the employees whom the Respondent discriminatorily discharged on
October 5. 1963, and that Lucas attended the Board hearing in the
representation case on December 11, 1963. In view of the foregoing,
and the Respondent's union animus, as evidenced by its other conduct,
2 The Union filed a representation petition in Case No 5-RC-449 on November 6, 1963.
seeking to represent certain employees of the Respondent, and hearinas on the petition
were held on December 11, 1963, and February 27, 1964 On May 20. 1964, the Regional
Director permitted the Union to withdraw its iepresentation petition.
3 The record contains no evidence that, as of December 1963. the Respondent employed
any assembler with mole work experience than Lucas
MAPHIS CHAPMAN CORPORATION 75
described more fully in the Trial Examiner's Decision, and found
herein to be violative of Section 8 (a) (1), (3), and (5) of the Act,'
we find that the Respondent's alleged reasons for the layoff of
Lucas on December 13, 1963, were merely pretextual and the true
motivation underlying that action Was to discourage membership in
the Union.' Accordingly, We conclude that by laying off Lucas on De-
cember 13, 1963, the Respondent violated Section 8(a) (3) and (1) of
the Act.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Maphis Chapman Corporation, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order as modified herein.
1. Insert the name "Keith Lucas" following the other named dis-
criminatees in paragraphs 2(b) and'(d) of the Recommended, Order.
2. Insert the name "Keith Lucas" following the other named dis-
criminatees in the first indented paragraph and note of Appendix
of the Trial Examiner's Decision.
' This conduct includes numerous instances of interrogation of employees and threats
for engaging in union actiNity on October 5, 17, and 23. 1963, and in March 1964• the
discriminatory discharge of nine employees on October 5 and 17 1963; the discriminatory
layoff of employee Rinaca on December 13, 1963; and the refusal to bargain on and
after October 31, 1963
G Associated Naval Architects, Inc, 148 NLRB 1674
"Although we believe that the circumstances surrounding the Respondent's layoff of
Lynwood Wyant on December 14, 1963, and its failure to recall Lionel Shifflet and
Robert Dovel in Alarch 1964, are suspicious, we are not cons inced that the evidence
preponderates in favor of a finding that such conduct by the Respondent violated Sec-
tion 8(a) (3) of the Act We therefore adopt the Trial Examiner ' s recommended dis-
m»sal of these allegations of the complaint Although it would appear, contrary to the
Trial Examiner, that McEnerney did testify at the representation case hearing that
Rinaca was laid off because his production had fallen below standard , we nevetheless
agree with the Trial Examiner, for the other reasons given by him, that the Respondent
laid off employee Charles Rinaca on December 13, 1963, in violation of Section 8(a) (3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This complaint l under Section 10(b) of the National Labor Relations Act, as
amended ( herein called the Act ), heard before Trial Examiner Joseph I Nachman at
Harrisonburg , Virginia , on July 14 and 15, 1964 , alleges that Maphis Chapman
Corporation (herein called Respondent or Company), violated Section 8(a)(1), (3),
(4), and (5) of the Act. All parties present and participating in the hearing were
afforded full opportunity to adduce pertinent evidence, to examine and cross-examine
witnesses, to argue orally on the record, and to submit briefs Oral argument was
waived. Briefs submitted by the General Counsel and Respondent, respectively, have
been duly considered.
I Issued May 14 1964 , on a charge filed March 25, 1964 , amended April 1. 1964, and
fun they amended April 22, 1964
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, including my observation of the demeanor of
the witnesses , I make the following:
FINDINGS OF FACT 2
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. The sequence of events
1. Interrogation and discharges on October 5
Early in October 1963 ,3 the Union began an organizational campaign among
Respondent's employees . A union meeting , attended by seven employees , was held
on October 3. Six of these employees then signed authorization cards, and took blank
cards to procure additional authorizations.4 Within 2 days after the Union's meeting,
Respondent began interrogating employees regarding their union activities, and
threatened reprisal if the employees selected union representation. The details of
this are as follows:
On October 5 Company President Maphis summoned to his office employee Charles
Rinaca. Maphis asked Rinaca if he (Rinaca) had attended the union meeting.
Rinaca said he had not. Maphis repeated his question, and Rinaca again replied in
the negative. Maphis stated that if Rinaca had not attended the union meeting, he
had a twin brother. Rinaca then stated that he was not going to lie about it, and
admitted he had attended the union meeting. Maphis then asked who else had
attended, and Rinaca replied, "A whole lot, I don't remember who all." Maphis asked
whether Rinaca was going to tell him who was at the union meeting. Rinaca refused.
Maphis then asked, "Do you know that it will mean your job if you don't?" Rinaca
replied, "I would rather lose mine than have the rest of them lose theirs." Rinaca
was then directed to return to work.
On October 5 General Manager McEnerney called Joseph Dove] from his work
station and asked the latter, "What's this about this Union?" When Dovel indicated
he had no information on the subject. McEnerney asked if there had not been a union
meeting which Dovel attended. Dovel again pleaded lack of information on the
subject, and McEnerney stated, "Come on; tell me something about it" and added,
"It will be kept strictly confidential and no one else will know about it." Dovel
replied, "There's nothing I can tell you." McEnerney then asked, "What good do
you think a union would do?" and when Dovel replied that a union would bring
better wages and working conditions, McEnerney stated that Respondent's compet-
itors in the area paid lower wages, employing Negroes at $1.25 per hour. After some
further conversation McEnerney stated, Maphis "doesn't have to operate this place
and if a union comes in he'll close the door." 6
At the close of business on October 5, five of the six employees who signed cards
at the union meeting of October 3 were discharged.? As these employees left the
2 No issue of commerce or labor organization is involved Although Respondent's
answer denies the conclusion alleged in the complaint that it Is engaged in commerce
within the meaning of the Act, the pleaded facts on which that conclusion is premised are
admitted. I find the facts to be as pleaded. They plainly meet the Board's standards
for the assertion of jurisdiction. The parties stipulated facts which established the
status of International Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths,
Forgers and Helpers, AFL-CIO (hereinafter called the Union), as a labor organization
within the meaning of the Act. I so find
8 Unless otherwise indicated all dates mentioned herein are 1963
' These were Charles Rinaca, Millard Miller, Joseph Dovel, Lynwood Wyant, Ernest
Stanley, and Lionel Shifflett. The other employee , Nelson Leap , attended only a por-
tion of this meeting and apparently did not sign a union card.
a The findings in this paragraph are based on the uncontradicted and credited testimony
of Rinaca. Though Maphis testified, he did not deny the statements attributed to him
by Rinaca. He did testify that on the advice of counsel, he refrained, and instructed all
his supervisors to refrain, from questioning employees about their union activity. How-
ever, the record shows that the questioning of Rinaca, referred to above, occurred over 2
weeks before Maphis first conferred with counsel on this matter
6 The findings in the foregoing paragraph are based on the uncontradicted and credited
testimony of Joseph Dovel McEnerney, although testifying as a witness for Respond-
ent, did not deny the statements so attributed to him.
7 The employees so discharged on October 5 were Millard Miller, Ernest Stanley, Lyn-
wood Wyant, Keith Lucas, Joseph Doval, and Lionel Shifflet All but Lucas had attended
the union meeting of October 3. Charles Rinaca, who had also signed a union card at the
meeting of October 3, and admitted this fact to President Maphis on October 5, was dis-
charged on October 17, as hereafter set forth.
MAPHIS CHAPMAN CORPORATION 77
plant at the end of that workday, Plant Foreman Michael handed each of them his
paycheck, to which was attached a slip reading: "We are sorry to advise you that your
work is not satisfactory and you have been taken off our payroll as of October 5,
1963."
The men asked Michael what the slip meant. Michael's reply was, "I'm handing
down to you what was handed down to me ," or, in some instances , "As of now that
information ain't available." All of the employees discharged on October 5, except
Shifflett, testified without contradiction , that prior to receiving the aforementioned
slip attached to their paychecks, they had never been criticized for their work, nor had
their work performance ever been questioned by Respondent. Shifflett did not testify.
Respondent introduced no testimony tending to show that Shif lett's work performance
was other than satisfactory.
2. Interrogation and discharges of October 17
On October 17, Vice President Williams asked employee Robert Dovel if he (Dovel)
had signed a union card. Dovel admitted he had. Williams then said that the Com-
pany had been operating in the red, that it could not operate if the Union came in,
and would have to "lock the door and shut up ...." 8
Also on October 17, employee Junior Housden was summoned to Vice President
Williams' office. Williams told Housden that the Union was trying to get in, but
the plant was operating in the red and we have to try to keep it out. Williams then
asked Housden, "How do you feel about the Union? Did you sign?" Housden
admitted he had. Williams then stated, "You know, we've got to keep the Union out
or we're going to have to close down. We'll have to pull the switch." 9
At the close of business on October 17, Respondent discharged Robert Dovel, Junior
Housden, and Charles Rinaca.'° As Housden was leaving the plant that day, Fore-
man Michael handed Housden his check. Housden asked, "What's wrong?" Michael
did not answer, but told Housden, "Thats all." Robert Dovel and Rinaca left the
plant together, and when they reached the door Michael gave each of them their
checks. Rinaca, having in mind the discharge slips handed out October 5, asked
Michael, "What's it for-unsatisfactory work?" Michael replied, "Yeah." Dovel
commented that it was unnecessary to ask what it was for, that he knew the answer
to that question. Michael's comment to this was that he was just handing down what
had been given to him. There is no evidence that Dovel, Housden, or Rinaca were,
prior to October 17, criticized in any way for their work performance."
3. Most of the discharged employees are recalled
On or about October 21 President Maphis conferred with counsel relative to this
matter. This conference was occasioned by the fact that on or about October 18
Respondent had received a copy of the charge in Case No. 5-CA-2615 (filed Octo-
ber 16 and subsequently withdrawn), which alleged that the October 5 discharges
were discriminatorily motivated. On advice of counsel, Respondent, on October 23,
directed a letter to all the employees discharged on October 5 and 17, except
Joseph Dovel and Junior Housden, recalling them to work. The record is silent as
to Respondent's reason or reasons for not sending recall letters to Joseph Dovel and
Junior Housden. Within a short period all the recalled employees returned to work,
and continued to work until December 13, when most of them along with a number
of other employees were terminated under circumstances hereafter related.
4. Threats , restraint , and coercion after employees return to work
A day or two after Miller, who had been discharged by Respondent on October 5,
returned to work, he was approached at his work station by Shop Foreman Michael,
admittedly a supervisor within the meaning of the Act. Michael told Miller, "You've
8 These findings are based on the credited and uncontradicted testimony of Robert
Dove'. Williams, though present in the hearing room, was not called as a witness.
8 The findings in this paragraph are based on the uncontradicted and credited testimony
of Housden.
10 Rinaca had on October 5 been interrogated by President Maphis, as above set forth.
11 Respondent did establish that after October 23, when Rinaca and others were
recalled by Respondent , Rinaca was given a written reprimand . As this incident was
after October 17, it can have no relevance in determining whether or not his discharge
on October 17 was discriminatorily motivated.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
got a job here if you keep your nose clean." Miller asked Michael what this meant,
and the latter replied, "Mr . Maphis wasn ' t making [enough ] money to have a union
in here, he wasn't going to have it." 12
5 The alleged refusal to bargain
There is no dispute that by letter dated October 28 the Union made demand on
Respondent for recognition and bargaining as the representative of the employees in
a unit of production and maintenance employees . The letter stated that if Respondent
had any doubt that the Union had been designated as majority representative , it would
submit proof thereof to any mutually agreeable third party . President Maphis
admitted that he received this letter a day or two after its date, and testified that he
took it " immediately" to his attorney in Richmond for instructions . It is likewise
undisputed that by its counsel 's letter dated October 31 , Respondent advised the
Union that it did not believe that a majority of its employees had designated the
Union as majority representative and, therefore , declined to recognize or bargain
with the Union until it had been certified by the Board. This letter made no mention
of improper unit, nor did it comment on the Union 's offer to submit evidence to sup-
port the Union's claim of majority representative . Respondent's defenses to this
aspect of the case are that. ( 1) The Union did not have majority status in fact; (2)
the Union 's demand was in an inappropriate unit; ( 3) Respondent had a good-faith
doubt as to the Union 's majority status , and (4 ) in any event it was entitled to insist
that the Union establish its majority status through a Board-conducted election. The
facts with respect to Respondent's defenses will now be set forth.
a. Union's majority status
Respondent maintains its payroll on a weekly basis. The payroll for the workweek
of October 28 to November 2, the accuracy of which was stipulated , contains the
names of 66 employees . However, the parties also stipulated that four names appear-
ing on this payroll should not be counted in- determining total employment 13 Thus
the total number of employees appearing on the payroll is reduced to 62 To this
must be added the names of Joseph Dovel , Junior Housden , and Robert Dovel, who,
as found in a subsequent section of this Decision , were discriminatorily discharged by
Respondent on October 5 and 17, and by reason thereof remained employees of
Respondent and must be so considered in ascertaining the Union's majority.14 The
payroll, accordingly , consists of 65 employees
To establish majority status , the General Counsel introduced a total of 39 author-
ization cards , executed between October 3 and October 25, the signatures on each
being duly authenticated . Four cards must be disregarded because the names of the
persons signing them do not appear on the stipulated payroll . '5 There are thus 35
valid authorization cards, a majority of the 66 names on the payroll when the Union
made its demand for recognition and bargaining.
b. The unit problem
Respondent 's position that the Union does not represent a majority in the appro-
priate unit is based on the contention that its business is seasonal in nature; that during
12 The findings in this paragraph are based on the credited and undenied testimony
of Millard Miller. Michael did not testify
13 The four are Raymond Shifilett , Garland Baugher, Donald Smith , and Marvin Hulvey
The parties agree that these individuals either quit prior to receipt of the Union ' s demand
or were hired thereafter
34 Moreover , Robert Dovel was recalled by Respondent on October 23, and while he
did not report for work until November 4 , he notified Respondent about October 25
that he would return to work For this additional reason he must be regarded as an
employee
"The cards which must be so disregarded are those of Judson Thompson , Harold L
Monger, Martin Curtis , and Harry Chandler In the case of Thompson , the parties have
by written stipulation submitted to me after the close of the hearing , and which I
hereby make a part of the record as Trial Examiner ' s Exhibit No. 1, agreed that Thompson
quit the employment of Respondent on October 22, 1963. As to Monger , Martin, and
Curtis, there is no evidence that they were ever employed by Respondent
MAPHIS CHAPMAN CORPORATION 79
the peak season it hires a number of "temporary " employees that are not appro-
priately . a part of the unit; and when , these "temporary" employees are eliminated,
the Union did not'have majority status.16
c. The alleged good-faith doubt of majority
As above stated , the Union 's letter of October 28 , requesting recognition and bar-
gaining, stated that if Respondent had "any doubt " as to the Union 's majority status,
the latter would be willing to submit the signed cards to a mutually agreeable neutral
party for checking . Respondent admits that it never replied to this suggestion on the
part of the Union. It should also be noted that the letter to the Union declining
recognition , written by Respondent 's counsel on October 31 , predicated such refusal
solely upon the 'ground that Respondent did not believe that a majority of the pro-
duction and maintenance employees had designated the Union as majority represen-
tative; no mention was made regarding the contention later advanced that the "tem-
porary" employees were not a part of the unit which the Union claimed to represent.
When asked to state the factual basis for his doubt that the Union represented a
majority of Respondent 's employees , President Maphis replied:
Well, sir, after being in business . . and managing this particular business for
15 years, where the majority of my regular employees have an employment
record of 8, 10, so [sic ] as many as 15 years , with no indication or complaints
prior to this time to amount to anything , it just doesn ' t seem possible that they
would change their mind all of a sudden , and possibly that there could be some
error someplace , I don't know.
Except for this statement , and the contention as to the scope of the unit , Respondent
offered nothing additional by way of factual support for its asserted good-faith
doubt that its employees had designated the Union as their representative.
6. Union files representation petition
Following receipt of Respondent 's letter stating that recognition would not be
granted unless the Union first obtained Board certification , the Union , on Novem-
ber 6, filed a petition with the Board seeking such certification in a unit composed
of Respondent 's production and maintenance employees 17 On December 11, a
hearing was conducted by the Board in the representation case. Although the record
is not clear as to the identity or number of Respondent 's employees who attended
that hearing , it does appear that Joseph Dovel and Robert Dovel testified, and that
Keith Lucas was in attendance pursuant to a subpena The evidence taken at this
time, and at a reopened hearing held February 27, 1964, dealt primarily with the
issue whether the so-called "temporary " employees were within the unit, or should
be excluded therefrom.
7 The layoffs on December 13
Respondent admittedly laid off approximately 22 employees on December 13 It
contends that this layoff was occasioned solely by the fact that its peak season had
ended, and it had no further need for the services of those employees
It is uncontroverted that Respondent 's business is of a seasonal nature , the peak
season running from about May I to the end of November or mid-December; and
that in the nonpeak period, employment runs from 35 to 40 employees, which
expanded to about 60 during the season According to General Manager McEner-
ney, management personnel conferred on December 9 or 10 for the purpose of
selecting the employees to be laid off in view of the end of the peak season, and a
decision on the matter was reached at that time . Although the General Counsel
concedes that the December 13 layoffs were generally for economic reasons, he
16 It is of interest to note that even under Respondent ' s theory the Union was short
only one authorization for a majority As pointed out above , total employment on the
critical date was 66 General Manager McEnerney testified what employees respondent
regarded as temporary , listing a total of 23 names tiom among the 66 on the payroll.
Under Respondent ' s theory, therefore , the payroll should consist of 43 employees ( 66 minus
23). Of the 35 valid authorization cards, 14 were among those designated by McEnerney as
temporary Deducting these 14 from the 35 valid authorization cards, there remains 21:
1 short of a majority of the 43 in the unit composed as Respondent would have it
17 Case No. 5-RC-4449
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends that the inclusion of Lynwood Wyant , Keith Lucas , and Charles Rinaca
in that layoff was discriminatorily motivated , or "because they gave testimony or
filed charges under the Act."
There is no evidence that Wyant , Lucas, or Rinaca filed any charge under the
Act. While the record does show that Lucas attended the December 11 hearing
pursuant to subpena , there is no evidence that he testified at that time .18 With
respect to the allegation that Wyant, Lucas, and Rinaca were included in the
December 13 layoff for discriminatory reasons, General Manager McEnerney testi-
fied that in reducing the work force at the end of the peak season , it was the practice,
which he said was followed in 1963, to select from among the "temporary " employees
a sufficient number to fill existing vacancies in the staff of the so -called permanent
employees , and then to lay off the remaining "temporaries ." 19 McEnerney also
testified that management 's decision as to what employees were to be laid off was
made on December 9 and 10, but was not carried into execution until December 13,
and that the layoff included , and was only intended to include , "temporary" employ-
ees. McEnerney admitted , however, that Rinaca was at the time a permanent
employee and made no explanation why the general practice to retain permanent
employees was not followed in the case of Rinaca.
8. The alleged subsequent refusals to rehire
In February 1964 Joseph Dovel went to Respondent's plant seeking work,20 and
was interviewed by General Manager McEnerney. In the course of this interview,
McEnerney asked Dovel, "If we call you back, how hard will you work against the
Company now" adding, "You have done a lot of work against this Company." When
Dovel asked what McEnerney meant, the latter said, "You appeared in court didn't
you?" Dovel explained that he had attended the Board hearings in obedience to a
subpena, and told McEnerney, "You didn't fire the right ones." McEnerney asked,
"Who were they," but Dovel refused to say. McEnerney then gave Dovel an appli-
cation for employment and told him to fill it out commenting, "I'll see what I can
do." 21 Hearing nothing from McEnerney, Dovel returned to the plant in late
March to check on the matter, but was told by the office girl that Respondent was
not hiring. McEnerney admitted that the office girl reported this conversation to
him. Dovel has heard nothing further from the Company.
In March 1964, Lynwood Wyant, pursuant to a message from the Company that
they wished to talk with him about returning to work, went to the plant where he
was interviewed by McEnerney.22 In this conversation McEnerney told Wyant that
the Union was trying to get into the plant, that any help he (Wyant) could give them
would be appreciated, and asked Wyant "who was the head of the Union, who was
for the Union, and who was against the Union." Wyant refused to give the requested
information. Wyant was rehired.23
Owen Hughes had worked for Respondent during several periods in the past. In
March 1964 Vice President Williams went to Hughes' home and asked the latter to
Is Rinaca did testify at the reopened hearing on February 27, 1964, but that fact
could have no bearing on the motivation for his discharge more than 2 months earlier.
19 A more detailed discussion of Respondent's contention as to what constitutes a
"temporary" employee Is set forth in the conclusions with respect to the refusal-to-
bargain aspects of this case.
20 As heretofore stated Joseph Dovel was one of those discharged October 5, but he
was not recalled on October 23.
Si McEnerney admitted that in February or March 1964 Joseph Dovel discussed with
him the matter of reemployment At first he denied that there was any discussion of
Dovel's union activities. Later he stated that Dovel "might" have mentioned it. When
pressed further he admitted that Dovel did make some comment about the Union, but
that he did not recall the exact words. He insisted, however, that he made no reply
to Dovel's comment, and that he did not question Dovel about who was in the Union.
I credit Dovel because his testimony is more consistent with Respondent's practice of
interrogating employees-a practice which is virtually conceded by the failure of Re-
spondent's officials to deny most of the interrogation attributed to them.
re Wyant had attended the union meeting of October 3; he was discharged October 5,
recalled on October 23, and again dismissed on December 13.
23 The findings in this paragraph are based on the credited testimony of Wyant.
McEnerney admitted talking with Wyant on this occasion but denied making the state-
ments Wyant attributed to him. As heretofore stated, I do not credit McEnerney in
this respect.
MAPHIS CHAPMAN CORPORATION 81
go to the plant and talk to McEnerney about employment. Pursuant to this request
Hughes talked to McEnerney in the latter's office, at which time McEnerney asked
Hughes to return to work for Respondent. Hughes indicated reluctance, comment-
ing that Respondent had laid off a group of employees last fall and called all of them
back except Joseph Dovel, and that he (Hughes) considered that "pretty dirty."
McEnerney's reply was, "Well, Joe [Dovel] is the head of the Union." When Hughes
stated that he believed this to be inaccurate, McEnerney asked, "Who is?" Hughes
stated that he did not know, and McEnerney replied, "Joe is." 24 Hughes accepted
employment and was put to work.
Junior Housden likewise went to the plant in late March 1964, seeking work, and
was interviewed by McEnerney. McEnerney told Housden that he had just hired 10
people and had no work for Housden, but that he could file an application if he
wished. Housden did not file the application because he felt it would serve no
purpose. McEnerney testified that during the month of March 1964, Respondent
hired from 7 to 10 welders; that he was at that time seeking experienced welders;
and that he sent word to people who had worked for Respondent in the past and
who to his knowledge were experienced. Although Housden had worked for Respond-
ent as a welder, McEnerney made no effort to communicate with him. Also, while
McEnerney was critical of the work performance of some of the employees involved,
he directed no such criticism at Housden and the latter testified that while employed
by Respondent he had never been criticized for his work.
The record further establishes that Keith Lucas, Lionel Shifflett, and Charles
Rinaca, the latter a welder, all of whom were laid off on December 13, were not
thereafter recalled to work by Respondent. There is no evidence that any of them,
after December 13, sought employment from Respondent.
Robert Dovel likewise sought employment from Respondent in March 1964. He
was given an application form by McEnerney which Dovel took home, completed,
and returned to McEnerney the following day. He was not recalled to work.
According to McEnerney, whom I credit in this respect, Robert Dovel's work was of
an unskilled nature,25 and he told Dovel that he (McEnerney) had no work for
which Dovel could qualify, but if he would leave an application he would be called
if such a job developed 26
9. Disposition of the representation case
On March 27, 1964, the Regional Director issued a Decision and Direction of
Election in the then pending representation case,27 holding that the employees char-
acterized by Respondent as "temporary" were in fact seasonal employees and enti-
tled to vote in the contemplated election. Respondent's request for review of the
Regional Director's Decision, filed April 9, 1964, was denied by the Board on April 30,
1964, on the ground that "it raises no substantial issues warranting review."
However, the election directed by the Regional Director was never held, a com-
plaint having been issued on the instant charges, and the Union having, with the
approval of the Regional Director, withdrawn the representation petition.
21 The findings in this paragraph are based on the credited testimony of Owen Hughes.
McEnerney denied that the Union or who its leaders were was discussed during his in-
terviews with Hughes. As above stated, I do not credit McEnerney in this regard.
25 Hanging tanks on the production line. In the slack season this work is done by
the painter or the tester.
'° Dovel gave several conflicting versions of what McEnerney said on that occasion.
He first testified that he asked McEnerney if he was hiring, and that McEnerney replied,
"Not the ones I got rid of." He then changed his testimony to attribute to McEnerney
a statement that he (Dovel) would not be rehired because of the way he had "talked
about the Union" He later changed this by saying that at no time during this con-
versation did McEnerney mention the Union, and claimed that McEnerney's statement
was that Dovel would not be employed in view of his behavior the past summer. Al-
though I believe Dovel was to some extent confused when he testified as to this incident,
I do not, in view of the inconsistency in his testimony, credit him regarding that con-
versation. I have, however, credited other portions of his testimony because in those
instances I believe he was not confused, and his testimony in those particulars is not
controverted.
2r The election so directed was to be conducted at a time and place specified in a notice
of election to be subsequently issued.
783-133-66-vol. 151-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Concluding findings
1. Interference , restraint , and coercion
The law is too well settled to require extended discussion or the citation of author-
ity for the proposition that the statements of Respondent 's management officials to
Joseph Dovel and Charles Rinaca on October 5; to Robert Dovel and Junior Hous-
den on October 17 , to Millard Miller after his recall on October 23 ; and to Joseph
Dovel, Lynwood Wyant, and Owen Hughes in February and March 1964, which in
substantial part was not denied by the persons to whom such statements were
attributed , constitute interference , restraint , and coercion proscribed by Section
8 (a) (1) of the Act. I so find and conclude.
2. Discriminatory discharges and refusals to rehire
a. The discharges of October 5 and 17
The facts heretofore set forth leave no room for doubt that the discharges of
Millard Miller , Ernest Stanley , Lynwood Wyant , Keith Lucas , Joseph Dovel, and
Lionel Shifflett on October 5, as well as the discharges of Junior Housden, Robert
Dovel, and Charles Rmaca on October 17, were discriminatorily motivated. The
fact that Respondent began interrogating its employees within 2 days after the
Union's organizational meeting; threatened plant closure if the Union succeeded in
organizing the employees ; threatened one employee with possible discharge if he
persisted in his refusal to disclose the identity of employees who attended the union
meeting; at the end of that workday discharged six employees five of whom were
among the six employees who had attended the union meeting of October 3 , all for
alleged unsatisfactory work; these employees had not theretofore been criticized for
their work performance , and some had received increases in pay shortly before their
discharge ; on October 17 discharged for alleged unsatisfactory work, three addi-
tional employees who had likewise not been criticized prior thereto for improper
work performance , including at this time the employee who had been threatened
with discharge for refusing to reveal the identity of the employees attending the
union meeting ; and 6 days later recalling to work seven of the nine "unsatisfactory"
employees ; admits of no conclusion other than that all nine of these employees were
discharged, not for unsatisfactory work, but because of their union activities. I so
find and conclude.
Respondent 's contention that at the time of these discharges it did not know of the
union meeting on October 3, nor of the other union activities engaged in by its
employees , is not supported by the record . As heretofore stated, not only did Vice
President Williams and General Manager McEnerney interrogate employees about
their union activities , and thereby learned that at least the interrogated employees
had signed union cards , but President Maphis, after Rinaca reluctantly admitted that
he had attended the union meeting and signed a card , threatened the latter with dis-
charge if he persisted in his refusal to disclose the names of other employees attend-
ing that meeting. These facts demonstrate that Respondent was well aware of the
organizational activity among its employees . And Respondent 's selection for dis-
charge on October 5 of five of the six employees who had attended the union meet-
ing on October 3 cannot , in view of Respondent 's persistent efforts to ascertain the
identity of the employees attending that meeting , be passed off as mere happenstance.
b. The December 13 layoff
Respondent contends that the December 13 layoff was required solely because of
the approaching slack season and the necessity for reducing force. General Manager
McEnerney testified that in reducing force at the end of the busy season it was the
general practice to first fill from among the so-called temporary employees, the vacan-
cies in the ranks of its so-called permanent employees , and then to lay off the remain-
ing temporary employees . According to McEnerney , this practice was followed in
1963, and the selection of the employees to be retained , and those to be laid off, in
accordance with the aforementioned method of operation was made on December 9
or 10, but was not executed until December 13. The General Counsel concedes that
in general , the layoffs on December 13 were for valid economic reasons not violative
of the Act , but contends that Lynwood Wyant, Keith Lucas , and Charles Rinaca
were included in that layoff "because of their membership in, assistance to, or
activity on behalf of the Union or because they gave testimony or filed charges under
the Act."
MAPHIS CHAPMAN CORPORATION 83
There is no evidence that any of the individuals mentioned filed any charge under
the Act. The transcript in the representation case shows that none of these employees
testified at the December 11 hearing. The discrimination against Wyant, Lucas,
and Rinaca on December 13, if such is to be found, must be predicated on the
theory that they were included in that layoff because of their assistance to, or sup-
port of, the Union. It is true that Wyant and Lucas had been discriminatorily dis-
charged on October 5 but were recalled on October 23, and thereafter worked until
December 13 without incident. It is also true that Lucas attended the Board's hear-
ing in the representation case on December 11, pursuant to a subpena served upon
him. However, I find nothing in the evidence to overcome the uncontradicted testi-
mony of McEnerney that Wyant and Lucas were both what Respondent regarded,
correctly or incorrectly, as "temporary" employees who were selected for layoff
solely for that reason, or from which I can appropriately infer that their layoff was
discriminatorily motivated. In other words, I find nothing in the evidence to war-
rant a different result insofar as the December 13 layoff of Wyant and Lucas is con-
cerned, and the layoff of Clayton Shifflett and Robert Dovel, on the same day. The
latter two, the General Counsel concedes, were not discriminatorily discharged on
December 13. Accordingly, I find and conclude that the General Counsel has failed
to prove by a preponderance of the evidence that Wyant and Lucas were included
in the December 13 layoff for discriminatory reasons, and shall recommend that the
allegations of the complaint in that respect be dismissed.
The December 13 layoff of Rmaca, however, I find to be governed by other con-
siderations. As above set forth, Rinaca had attended the union meeting of October 3,
was interrogated by President Maphis on October 5 and threatened with discharge
for refusing to disclose the identity of other employees participating in the Union's
campaign, and was in fact discharged on October 17, but recalled on October 23, as
above detailed. McEnerney testified, as I have pointed out, that only temporary
employees were laid off on December 13, and yet Rinaca, who, McEnerney admit-
ted, was a permanent employee,28 was included in that layoff. Respondent asserted
justification for including Rinaca in this layoff was that just prior thereto Rinaca's
production had fallen below standard, and he had been given an official warning by
his foreman.29 Again, the testimony of McEnerney is contrary to Respondent's cur-
rent contention. At the February 27 hearing in the representation case, McEnerney
testified that Rinaca was laid off on December 13 "for lack of work." Thus, in close
proximity to the event, and nearly 3 months prior to the issuance of the complaint
herein, McEnerney did not mention Rinaca's alleged deficient work performance.
Under all the facts, I find and conclude that Rinaca was included in the December 13
layoff, not because of the alleged deficiency in his work performance, as alleged
by Respondent, but because of his assistance to and support of the Union.
c The refusals to recall or r ehire
The General Counsel contends that Respondent 's failure, in March 1964, to recall
Joseph Dovel and Junior Housden, discharged on October 5 and 17, respectively, and
to rehire Lionel Shifflett and Robert Dovel , was discriminatorily motivated, and
2' The assertion in Respondent's brief that "Rinaca has always been considered a tem-
porary employee by the Company," is in conflict with the testimony of General Manager
McEnerney. The latter testified as follows with respect to the December 13 layoff.
Q. All right Were all of them [Rinaca, Wyant, and Lucas] considered tem-
porary at the time the decision was made to lay them off'
A. All but Rinaca.
L t i s i t
Q So Rinaca was a permanent employee at that time'
A. At that time.
29 Rinaca denied that his production fell below standard, but admitted a reprimand
by his foreman shortly after his recall in October According to Rinaca the reprimand
was for not telling the foreman that the production line was backed up, and that the
foreman stated the warning was nothing to worry about. According to McEnerney the
reprimand was given for failure to make production. I find it unnecessary to resolve
this conflict. It is clear that only one such incident was involved, and that it was not
considered by Respondent to be of sufficient gravity to warrant discharge because it
permitted him to continue working for something over a month after the incident.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hence constituted additional and independent violations of the Act . In view of my
findings above set forth , that Joseph Dovel and Junior Housden were discriminatorily
discharged on the dates indicated , and not thereafter recalled, I deem it unnecessary
to decide whether the failure to rehire them in March 1964 constituted independent
violations of Section 8(a)(3) of the Act.30 With respect to Lionel Shifliett and
Robert Dovel, I have heretofore found that they were lawfully laid off on Decem-
ber 13. Accordingly , Respondent was under no obligation to seek them out and offer
them future employment . Only upon a showing that they sought such employment
and were denied the same for discriminatory reasons could the General Counsel
prevail on this allegation . There is no evidence that Lionel Shifllett sought employ-
ment from Respondent at any time after his layoff on December 13. Robert Dovel
did seek such employment during the latter part of March 1964 but Respondent did
not hire him . However, I find nothing in the evidence to support the conclusion
that Respondent 's failure to hire Robert Dovel at that time was discriminatorily
motivated. McEnerney testified that Robert Dovel could only perform unskilled
tasks, and that he had no need for such employees . The General Counsel did not
refute this testimony.
Accordingly , I find and conclude that the General Counsel has failed to establish
by a preponderance of the evidence that Lionel Shifflett and Robert Dovel were
denied reemployment in March 196's for discriminatory reasons, and shall recommend
dismissal of that allegation of the complaint.31
The Alleged 8(a) (5) Violation
The evidence shows, as above set forth , that the Union had been designated as
bargaining representative by a majority of the employees on the payroll at the time
the demand for recognition was made on Respondent . Respondent contends, how-
ever, that it was entitled to withhold recognition from the Union because (1) the
unit demanded by the latter is improper , and that in the proper unit the Union did
not represent a majority ; (2) the Respondent had a good-faith doubt as to the
Union's majority status; and ( 3) in any event, Respondent was entitled to insist that
the Union establish its majority in a Board -conducted election pursuant to which a
certification would issue.
As to the composition of the unit , Respondent 's basic contention is that its employee
complement at the time of the Union 's demand included a number of "temporary"
employees, who would not be entitled to vote at any election the Board might then
have held, and those employees should be excluded from consideration in determining
the Union 's majority status. As above stated , however , that was the point in issue
in the representation case (Case No. 5-RC-4449). The Regional Director there
determined that the employees referred to by Respondent as temporary were in fact
seasonal employees with "reasonable expectation of substantial future employment
and sufficient interest in employment conditions to justify their inclusion in the unit
and their participation in the election ...." Respondent 's petition to the Board for
review of the Regional Director 's Decision was denied by the Board as "raising no
substantial issues warranting review." Respondent urges that the Regional Director's
determination with respect to the scope of the unit was erroneous , and that I should
3O Having discriminatorily discharged them, Respondent will be required to offer them
reinstatement in any event. Nothing would be added to the order to be entered herein
by a finding that Respondent also violated the Act by failing to recall or rehire Joseph
Dovel and Housden for discriminatory reasons.
ffi Respondent's brief asserts that on July 29, 1964, some 2 weeks after the close of the
hearing herein, and to eliminate any suggestion that the six employees involved who
were not then working for Respondent was the result of discrimination against them,
it offered reemployment to Joseph Dovel, Junior Housden, Robert Dovel, Lionel Shiflett,
Keith Lucas, and Charles Rinaca. Respondent further asserts that both Dovels and Hous-
den returned to work on August 3, 1964; that Lionel Shiflett is presently in the army ; that
Lucas rejected seasonal employment, and that Rinaca failed to respond. The record, of
course, contains no evidence of this nature. Assuming that the facts are as Respondent
represents them to be, it is clear that such does not render moot the 8(a) (3) violations
found herein. N.L.R.B. v. alexia Textile Mills, Inc., 339 U.S. 563. To the extent that
these facts may bear on the reinstatement to be directed herein, or the computation of any
backpay that may be due, the facts asserted by Respondent can be considered and pro-
vided for at the compliance stage of the proceeding.
MAPHIS CHAPMAN CORPORATION 85
so hold. By virtue of Section 102.67(f) of the Board's Rules and Regulations 32 I
cannot review any matter decided in the representation case. That adjudication is,
by virtue of the Board's Regulation, final and binding on me 33 Accordingly, Respond-
ent was required to recognize and bargain with the Union, and its admitted refusal
to do so constituted a violation of Section 8(a) (5) of the Act, unless such refusal
was predicated upon a good-faith doubt as to the Union's majority status, or as
Respondent contends, it is entitled, in any event, to insist that the Union establish its
majority status in a Board-conducted election.
To determine whether Respondent had a good-faith doubt as to the Union's major-
ity status when it refused to bargain with the latter, one must start with the premise
that "expressions of doubt . . . standing alone, amount to nothing more than bare
assertions of a belief, and in the absence of more cogent facts do not amount to a
good-faith doubt of the Union's majority status." Carter Machine and Tool Co.,
133 NLRB 247, 248. See also N.L.R B. v. John S. Swift Company, Inc., 302 F.2d
342, 346 (C.A. 7). The only evidence in this record bearing on the basis for
Respondent's asserted doubt of the Union's majority was the testimony of President
Maphis to the effect that in view of the tenure of employment of most of the employ-
ees, without any substantial prior complaint, it just did not seem possible to him that
the employees would select union representation, and that the Union's claim of
majority status was "possibly" predicated on "some error someplace, I don't know."
This statement demonstrates that Respondent was harboring nothing more substan-
tial than an unsupported theory that its employees ought not select union represen-
tation. It does not constitute facts from which a prudent person could reasonably
doubt whether his employees had in fact selected union representation.
Another factor indicating that Respondent's refusal to grant recognition was not
predicated on a good-faith doubt of the Union's majority status, is the fact that it
made no response to the Union's offer to prove such status. The conclusion seems
inescapable that had Respondent's refusal been predicated solely on its doubt of the
Union's majority, it would have given the latter an opportunity to demonstrate
whether or not it had a majority, as the Union offered to do. As stated by the
Court of Appeals for the Second Circuit in N.L.R B. v. Philamon Laboratories,
Inc., 298 F. 2d 176, 180, enforcing an order of the Board (131 NLRB 80), in
language fully applicable here:
Finally, respondent contends it had a good faith doubt as to the union's
majority status. The record shows, however, that respondent in fact deliber-
ately shut its eyes to the facts of its industrial life and assiduously avoided
giving the union any opportunity to substantiate its claims. Such conduct is
not indicative of good faith.
If Respondent in fact had any real doubt as to the Union's claimed majority, it
would have given the Union an opportunity to establish that fact, or it would itself
have petitioned the Board for an election to determine the representation question.
Failing to pursue either course, it acted at its peril. Floience Printing Co. v.
N.L.R.B., 56 LRRM 2503, 2505 [333 F. 2d 289] (C.A. 4).
Moreover, a claim of good-faith doubt of majority must not be raised in a con-
text of illegal antiunion activities aimed at causing employee disaffection from the
-9229 CFR 10267(f), as amended iIay 4, 1961, and which, in pertinent part, provides
as follows
. Failure to request review shall preclude such parties from relitigating, in any
related subsequent unfair labor practice proceeding , any issue which was , or could
have been , raised in the representation proceeding . Denial of a request for review
shall constitute an affirmance of the Regional Director's action which shall also
preclude relitigating any such issues in any related subsequent unfair labor practice
proceeding.
93 Assuming arguendo that the question whether the employees designated by Respondent
as temporary are within the unit is appropriately before me for decision , the same result
would be reached . On that assumption I have read and considered the entire transcript
in the representation case, as well as the briefs submitted by counsel for Respondent in
that proceeding, all of which were received as exhibits in this proceeding . For the rea-
sons and upon the authority set out in the Regional Director 's Decision , I would con-
clude, as did the Regional Director, that the so -called temporary employees are in fact
seasonal employees who have a reasonable expectation of substantial future employment,
and sufficient interest in the employment conditions prevailing in Respondent 's plant, to
justify their inclusion in the unit , and their participation in the process of determining
whether or not the employees desire to designate a collective -bargaining representative.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, or indicating that the employer was merely seeking time to undermine the
Union. Carter Machine and Tool Co., supra. The facts heretofore set forth
demonstrate that Respondent's conduct does not fall within the aforementioned
rule. Not only did Respondent on October 5, within 2 days of the union meeting,
coercively interrogate employees as to their union activities and the union activities
of other employees, but threatened them with job termination by plant closure, and
other reprisal, if they succeeded in obtaining union representation. In addition,
also on October 5, Respondent discharged six employees for the tacitly admitted
false reason that their work was unsatisfactory. As heretofore stated, it is more
than mere happenstance that five of the six employees discharged on October 5
were among the group of seven employees that attended the Union's only organiza-
tional meeting on the evening of October 3. Such a course of conduct is wholly
inconsistent with a claim of good-faith doubt of the Union's majority, but is quite
consistent with a purpose of causing employees to defect from the Union, or to gain
time within which to undermine the Union. Joy Silk Mills, Inc. v. N.L.R.B., 185
F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.34
Respondent's contention that it was in any event entitled to a Board-conducted
election is wholly invalid as a defense to recognition. The Board, with court
approval, has consistently held that absent a good-faith doubt with respect to either
the appropriateness of the unit or the Union's majority status, an employer's refusal
to recognize the Union when the latter demands recognition constitutes a failure to
comply with the obligation imposed by Section 8(a)(5) of the Act, and that in
such circumstances the employer has no vested right to an election. United
Butchers Abbatoir, Inc., 123 NLRB 946, 957; Fred Snow, et al., d/bla Snow &
Sons, 134 NLRB 709, 710, enfd. 308 F. 2d 687, 691 (C.A. 9); Bernel Foam Products
Co., Inc., 146 NLRB 1277; Trimfit of California, Inc., 101 NLRB 706, enfd., 211
F. 2d 206, 209 (C.A. 9). The rule is succinctly stated in N.L.R.B. v. Philamon
Laboratories, Inc., 298 F. 2d 176, where the Court of Appeals for the Second Circuit,
in enforcing the Board's order in that case (131 NLRB 80), said (at p. 179) :
The act imposes a duty to bargain in good faith upon request whenever a labor
organization has been designated by a majority of employees in an appropriate
bargaining unit . The employer must recognize and bargain with such an orga-
nization whether or not it has been certified by the Labor Board. United Mine
Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 76; N.L.R.B. v.
Sunrise Lumber & Trim Corp., 241 F. 2d 620 (2 Cir., 1957), cert. denied 355
U.S. 818 (1957). To be sure, an employer laboring under a good faith doubt as
to a union's majority status need not extend recognition. Nevertheless, in the
absence of such a doubt, the employer has no vested right to an election.
Upon the entire record, I find and conclude that Respondent, when it refused the
Union's demand for recognition on October 31, 1963, had no good-faith doubt either
with respect to the appropriateness of the unit or the Union's majority status, but
denied recognition because of its hostility to the principles of collective bargaining,
and its determination to require the Union to establish its majority status by a Board-
conducted election, and thereby violated Section 8(a) (5) and (1) of the Act.
II. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom, and that it take the affirmative action
hereafter set forth, which is found necessary to effectuate the policies of the Act.
Having found that Respondent engaged in unfair labor practices by refusing since
October 29, 1963, to bargain with the Union as the collective-bargaining representative
34 Respondent also urges that its contentions as to the appropriate scope of the unit
were raised in good faith and that fact alone provided a sufficient basis for a good-faith
doubt of the Union's majority in an appropriate unit, even assuming that its unit con-
tentions were wrong. I find this contention without merit. In the first place, the letter
refusing to bargain with the Union did not refer to any alleged doubt as to the proper
scope of the unit, nor did Maphis predicate his alleged doubt on that ground when he
testified in this proceeding. Secondly, according to Respondent's own evidence, the
meeting between Maphis and his attorney did not occur until November 22, and it was
at that time, according to Maphis, that it was determined that certain employees were
"temporary" and should not be included in the unit. Plainly the unit contention could
not have been in counsel's mind when he wrote the October 31 letter These factors
convince me that the unit issue which Respondent now relies upon is a mere afterthought.
MAPHIS CHAPMAN CORPORATION 87
of its employees in the appropriate unit, I shall recommend that, upon request,
Respondent bargain collectively with the Union as such exclusive representative, and
if an understanding is reached, embody the same into a signed agreement.
Having found that Respondent discriminatorily discharged Millard Miller, Ernest
Stanley, Lynwood Wyant, Keith Lucas, Joseph Dovel, Lionel Shifflett, Junior
Housden, Robert Dovel, and Charles Rinaca on October 5 and 17, 1963, recalling
each of said employees except Joseph Dovel and Junior Housden, and on Decem-
ber 13, 1963, discriminatorily laid off Charles Rinaca, it will be recommended that
Respondent offer Joseph Dovel, Junior Housden, and Charles Rinaca immediate, full,
and unconditional reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights, privileges, or working conditions, and
make each of the employees found to have been discriminated against whole for any
loss of earnings suffered by reason of Respondent's discrimination against them, by
paying to each of them a sum of money equal to the amount he would have earned
from the date of his discharge or layoff to the date of Respondent's offer of uncondi-
tional reinstatement in the case of Joseph Dovel, Junior Housden, and Charles Rinaca,
and to the date of their reinstatement pursuant to Respondent's letter of recall, dated
October 23, 1963, in the case of the remainder, less his net earnings during the afore-
said discriminatory period. Backpay with interest at the rate of 6 percent per annum
shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent also interfered with, coerced, and restrained its
employees, I conclude that the totality of such unfair labor practices and those hereto-
fore referred to are of such a nature as go to the very heart of the Act. Therefore, I
shall recommend that Respondent cease and desist from in any manner interfering
with, restraining , or coercing its employees in the exercise of rights guaranteed to
them by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A.
4); California Lingerie Inc., 129 NLRB 912, 915.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent's production and maintenance employees, including truckdrivers and
seasonal employees, but excluding office clerical employees, technical employees,
draftsmen, guards, watchmen, and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within the meaning of Section
9(a) of the Act.
4. On October 29, 1963, and at all times since, the Union has been the exclusive
representative of Respondent's employees in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on and after October 29, 1963, to bargain collectively with the Union
as the exclusive representative of the employees in the aforesaid unit , Respondent has
engaged in and is engaging in an unfair labor practice proscribed by Section 8(a) (5)
and (1) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Millard
Miller, Ernest Stanley, Lynwood Wyant, Keith Lucas, Joseph Dovel, Lionel Shifflett,
Junior Housden, Robert Dovel, and Charles Rinaca, at the time and in the manner
set forth in the foregoing findings of fact, Respondent engaged in and is engaging in
unfair labor practices proscribed by Section 8(a) (3) of the Act.
7. By the aforesaid discrimination, and by interfering with, restraining, and coerc-
ing employees in the exercise of the rights guaranteed by Section 7 of the Act, as found
in the foregoing findings of fact, Respondent engaged in and is engaging in unfair
labor practices proscribed by Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. The allegations of the complaint not covered by the preceding conclusions of
law have not been established by a preponderance of the evidence and should be
dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondent, Maphis Chapman Corpo-
ration, its officers, agents, successors, and assigns, shall:
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths , Forgers and Helpers, AFL-CIO, as the
exclusive representative of the employees in an appropriate unit consisting of its
production and maintenance employees , including truckdrivers and seasonal employ-
ees, but excluding office clerical employees , technical employees , draftsmen , guards,
watchmen , and supervisors as defined in the Act.
(b) Discouraging membership in, or activities on behalf of , International Brother-
hood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers and Helpers, AFL-
CIO, or any other labor organization of its employees , by discharging , laying off, or
in any other manner discriminating against any of its employees , in regard to their
hire or tenure of employment , or any term or condition of employment.
(c) Coercively interrogating its employees concerning their membership in, sympa-
thies for , or activities on behalf of , any labor organization.
(d) Threatening plant closure or other reprisal if its employees select a labor
organization as their collective-bargaining representative.
(e) In any manner interferring with, restraining , or coercing its employees in the
exercise of their rights to self-organization , to form labor organizations , to join or
assist International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, or any other labor organization , to bargain col-
lectively through representatives of their own choosing , or to engage in other con-
certed activities for the purposes of mutual aid or protection , as guaranteed by Section
7 of the Act , or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with International Brotherhood of Boiler-
makers, Iron Ship Builders, Forgers and Helpers , AFL-CIO , as the exclusive repre-
sentative of the employees in the unit described above, with respect to rate of pay,
wages, houis of employment , and other conditions of employment, and if an under-
standing is reached , embody same into a signed agreement.
(b) Offer to Joseph Dovel , Junior Housden , and Charles Rinaca immediate, full,
and unconditional reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights, privileges , or working conditions.
(c) Make whole Millard Miller, Ernest Stanley, Lynwood Wyant, Keith Lucas,
Joseph Dovel , Lionel Shifflett , Junior Housden, Robert Dove], and Charles Rinaca
for any loss of earnings they may have suffered, severally, as set forth above in the
section hereof entitled "The Remedy."
(d) Notify Joseph Dovel, Junior Housden, and Charles Rinaca if presently serving
in the Armed Forces of the United States , of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
(e) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due, as herein provided.
(f) Post at its plant in Harrisonburg , Virginia, copies of the attached notice marked
"Appendix ." 35 Copies of said notice , to be furnished by the Regional Director for
Region 5 (Baltimore , Maryland ), shall, after being duly signed by its representative,
be posted immediately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered , defaced, or covered by any other material.
(g) Notify the aforesaid Regional Director , in writing , within 20 days from the
receipt of this Decision , what steps it has taken to comply herewith.36
3s If this Recommended Order is adopted by the Board , the words " a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United States Court of
Appeals , Enforcing an Order" shall be substituted for the words "a Decision aid Order."
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing , within 10 days
from the date of this Order , what steps it has taken to comply herewith."
LOCAL 19, INT'L LONGSHOREMEN'S ASSOCIATION 89
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, you are hereby notified that:
WE WILL, upon request, bargain collectively with the Boilermakers Union as
the exclusive representative of our employees in a unit of our production and
maintenance employees, including truckdrivers and seasonal employees, but
excluding office clerical employees, technical employees, draftsmen, guards,
watchmen, and supervisors as defined in the National Labor Relations Act._
WE WILL offer Joseph Dovel, Junior Housden, and Charles Rinaca immediate,
full, and unconditional reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights, privileges, or work-
ing conditions.
WE WILL reimburse Joseph Dovel, Junior Housden, Charles Rinaca, Millard
Miller, Ernest Stanley, Lynwood Wyant, Keith Lucas, Lionel Shiflett, and
Robert Dovel for any loss of wages they may have incurred by reason of the
discrimination against them.
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 the Boilermakers Union, or any other labor organization of our
employees, to bargain collectively through representatives of their own choosing,
or to engage in other concerted activities for the purposes of mutual aid or pro-
tection, as guaranteed by Section 7 of the National Labor Relations Act, as
amended, or to refrain from any and all such activities.
All our employees are free to become, remain , or refrain from becoming or remain-
ing members of any union.
MAPHIS CHAPMAN CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Joseph Dovel, Junior Housden, and Charles Rinaca if
presently serving in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after discharge from
the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any questions concerning this notice or compliance with
its provisions.
Local 19 , International Longshoremen 's Association, AFL-CIO
and Marine Association of Chicago
Local 19, International Longshoremen 's Association , AFL-CIO
and Calumet Harbor Service Co., Inc. Cases Nos. 13-CD-138
and 13-OD-139. February 16, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following charges filed on July 7, 1964,
by Marine Association of Chicago in Case No. 13-CD-138) and on
July 15, 1964, by Calumet Harbor Service Co., Inc., in Case No.
151 NLRB No. 13.