Master Transmission Rebuilding Corp. & Master Parts, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1965

155 N.L.R.B. 364 (N.L.R.B. 1965)

3364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise changing any other conditions of employment of employees
within the aforesaid unit without prior notice to and bargaining
with the Union.
EVE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
them by Section 7 of the Act.
CENTURY PAPERS, INC.,
Employer.
^atecl---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston,
-Texas, Telephone No. 228-4722, if they have any question concerning
this notice or compliance with its provisions.
:Master Transmission Rebuilding Corporation & Master Parts,
Inc. and International Association of Machinists , AFL-CIO,
District Lodge No. 87. Case No. 20-CA-2974. October 28, 1965
DECISION AND ORDER
On June 23, 1965, Trial Examiner David F. Doyle issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
-cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial. Exam-
iner also found that the Respondent had not engaged in certain other
unfair labor practices and recommended that the complaint be dis-
-missed with respect to such allegations. Thereafter. the Respondent
and the General Counsel filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
'delegated As powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
-at the hearing and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
155 NLRB No. 35.
MASTER TRANSMISSION REBUILDING CORP., ETC. 365
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the exceptions stated below.
1. The Trial Examiner found that Respondent General Manager
McGuinigie, on January 27, 1964, interrogated employee Chevoya
concerning Chevoya's union activities and told Chevoya that the
Respondent could close the plant and move to another location rather
than deal with the Union. The Trial Examiner also found that on
January 27 employee Napier was interrogated by Respondent Super-
intendent Lawley and warned that any employee caught talking
about the Union would be discharged. The Trial Examiner concluded
that by the above acts the Respondent violated the Act. The record
shows, however, that when Lawley interrogated Napier he also in-
formed Napier that the Respondent could close the plant rather than
let the Union in. Although this aspect of Lawley's conversation with
Napier was alleged in the complaint as a violation of Section 8(a) (1),
the Trial Examiner failed to refer to this portion of Napier's testi-
mony, and failed to find the latter threat also to be in violation of
Section 8(a) (1). Since the Trial Examiner apparently credited Na-
pier's testimony by finding that Lawley had unlawfully interrogated
-him as to his union activities and had threatened him with discharge,
Napier's additional testimony that Lawley also threatened closure of
the plant should similarly be credited. Accordingly, we find that by
making the aforementioned threat, the Respondent also violated Sec-
tion 8(a) (1) of the Act.
The evidence further shows that on February 7, 1964, as testified to
by employee Anderson, Respondent President Frank Rowland, in the
course of a conversation with Anderson dealing with the basis on
which Anderson's pay was to be computed in the future, asked Ander-
son whether he had signed a union card, saying "that if [Anderson]
told him at that time that [he] had signed the card, that [Anderson]
would have [his] job, there wouldn't be any hard feelings, but if he
-found out later, it might be a different field." Anderson told Row-
land that he had not signed a card although in fact he had. Here, too,
the Trial Examiner failed to advert to this portion of Anderson's
testimony and, hence, although Rowland's statement was alleged in
the complaint as a violation of the Act, the Trial Examiner made no
finding with respect to it. We note that Rowland challenged other
aspects of Anderson's testimony, but did not deny that he had inter-
rogated Anderson with respect to his union activities. It is true that
the Trial Examiner generally credited Rowland's testimony, but in the
absence of a denial of Anderson's testimony in this regard, and noting
that the interrogation is consistent with Rowland's admitted hostility
toward union organization and employees supporting it, we accept
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson's testimony as credible. We find, therefore, that by the
interrogation of Anderson as to his union activities, Respondent also
violated Section 8 (a) (1) of the Act.'
2. The Trial Examiner also found that the Respondent did not
violate Section 8(a) (2) of the Act by assisting in the formation and
functioning of the Employees Committee and by contributing finan-
cial support to it. We do not agree.
The evidence shows that Rowland in a speech to all the employees
the day after the election suggested that they form a committee for the
purpose of presenting suggestions to management for the improve-
ment of production in the plant. Rowland said that the subject of
wages would not be discussed. He also told the employees that the
Committee would be given the profits from the coke, cigarette, and
coffee machines. As a result, immediately after the meeting an elec-
tion was held, as suggested by Rowland, and three employees were
elected as a committee. Subsequently the Committee effectively dealt
with the Respondent regarding such matters as improved lighting in,
the plant, more "dunk" tanks, and the repair of the employee's "impact
guns" at company expense.
The Trial Examiner did not believe that the Committee was a labor
organization since he considered it to be social in nature. However,
the facts clearly show that the Committee was used as a vehicle for
presenting grievances that the employees had concerning improvement
of their working conditions and therefore is to be considered to be a
labor organization within the meaning of the Act.2 It is equally clear
that the formation of the Committee was consistent with, and a con-
tinuation of, the other unlawful conduct displayed by the Respondent.
Since there is no question that the Respondent suggested the forma-
tion of the Committee and assisted and supported such Committee, we
find that the Respondent thereby violated Section 8 (a) (2) of the Act.
3. The Trial Examiner found, and we agree, that the Respondent vio-
lated Section 8(a) (3) of the Act, when, in President Rowland's speech
on February 5, he informed the employees that he was cutting the work-
i On February 5, 1964, Rowland delivered a speech to the assembled employees in
which he informed them, inter alia, that he was forbidding employes to discuss the Union
on their coffee breaks because he was paying for that time. In passing on the legality of
the speech , the Trial Examiner failed to note that the Respondent 's admonition to the
employees not to talk about the Union on their coffee breaks was in violation of the Act.
The Board has held that an employer cannot forbid union solicitation on break periods
even though the break periods are paid-for time we, accordingly, find that by telling
the employees that they could not discuss the Union on their coffee breaks , the Respondent
also violated Section 8 (a) (1) of the Act. See Midland Manufacturing Company, division
of Pacific Industries , Inc., 134 NLRB 10. We also find that Rowland's February 7 action
of posting a notice threatening discharge for tardiness was, in view of its timing, done
in reprisal for the employees' union activities and, therefore, constituted an independent
violation of Section 8(a) (1).
2 Cabot Carbon Company and Cabot Shops, Inc., 117 NLRB 1633, set aside 256 F. 2d
281 (C.A. 5), reversed and remanded 360 U.S. 203.
MASTER TRANSMISSION REBUILDING CORP., ETC. 367
week from 461/2 hours to 40 hours. We also agree, for the reasons listed
by the Trial Examiner, that the Respondent did not violate Section
8(a) (3) of the Act by changing employee Anderson's method of pay.
4. Contrary to the Trial Examiner, we are of the opinion that the
Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to
recognize and bargain with the Union on and after February 5, 1964.
On January 22, 1964, the Union having authorization cards from
three-fourths of the Respondent's employees sent a letter by certified
mail to the Respondent requesting recognition and bargaining. The
letter was received and signed for by the Respondent on January 27,
1964, the same day portions of the above-mentioned 8(a) (1) activity
occurred. However, since Rowland was out of town on an extended
business trip, the letter remained unopened until February 5, when
he returned. On February 4, the Union, since it had not received a
reply to its letter requesting recognition and bargaining, filed a peti-
tion for a representation election. This came to Rowland's attention
on February 5. After learning of the Union's demand, and during
the afternoon of the same day, Rowland held an employee meeting in
which he said that he was upset because the men had gone behind his
back in contacting the Union, and that he did not want the Union in
his plant. As mentioned before, Rowland then announced that he was
cutting the workweek from 461/2 hours to 40 hours, and informed the
employees that they were not to discuss the Union on their coffee
breaks because he was paying for that time .3
On February 6 the Respondent's attorney, who was retained on that
day, sent a letter to the Union in which he stated, inter alia, that the
Respondent was agreeable to a consent election. The letter, however,
made no mention of the Union's request for recognition and bargain-
ing, and no reply was ever received from Respondent with respect to
the Union's demand for bargaining.
In finding that the Respondent had not refused to bargain in good
faith, the Trial Examiner relied on the fact that the Union had simply
claimed majority representation but had not offered to prove its
majority. Therefore, the Trial Examiner concluded, by filing a peti-
tion for a representation election, the Union had chosen "the one and
only way ... to prove its majority" and "when the Company consented
to this proposed procedure it was required to do no more in that
regard." We do not agree.
It is well established that the filing of a petition for an election does
not suspend an employer's duty to bargain in the absence of evidence
showing a good-faith doubt. It is equally well established that one
30n February 7, Rowland , after consulting with his attorney , held another employee
meeting in which he informed the employees that he was reinstituting 4 of the 6'/, hours
abolished on February 5. Even though Rowland attempted to undo the damage of his
February 5 speech , it is clear that he still deprived the employees of 2% hours of
overtime per week.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the essential prerequisites for a good-faith doubt defense is that it
must not have been raised in a context of illegal union activity 4 In
this case there is not only the lack of evidence showing a good-faith
doubt, but affirmative evidence showing Respondent to have engaged
in the unfair labor practices detailed above after the Union's request
to bargain, whose foreseeable consequence was the destruction of the
Union's majority status.
It is, therefore, not surprising that the majority which the Union
clearly possessed on January 22, when it first demanded recognition,
should have been subsequently lost. That such loss was attributable
to the Respondent's unfair labor practices is clear. Nor do we agree
with the Trial Examiner that the damage to the Union's majority
status, already evident on February 5, and, as indicated, occasioned by
Respondent's unlawful interrogation, threats, and reprisals visited on,
employees because of their union activities, was undone 2 days later by
Respondent's mere confession of error and restoration of some over-
time. The overtime which the Respondent had taken from the employ-
ees was, as the Trial Examiner found, discrinimatorily motivated and
was remitted in part only; there was no attempt to undo the unlawful
restriction placed on employees' discussions of union matters on their-
own time or to disavow the unlawful threats of the supervisors to close.
and move the plant. Furthermore, President Rowland's unlawful in-
terrogation of employee Anderson on February 7, and the posting at
this time of the notice threatening employees with discharge for
tardiness, which we have found violated Section 8 (a) (1) of the Act,
refutes the Trial Examiner's conclusion that after Rowland's conduct
on February 5, Respondent made no further attempt to engage in_
unlawful practices. Moreover, the retraction which the Trial Exam-
iner professes to find in Rowland's second speech on February 7 is, in
our view, no retraction at all. Rowland did not apologize for his.
unlawful conduct. He did not inform the employees that they were
free to engage in or not engage in union or concerted activities without
interference from the Respondent. The confession, as the Trial Exam-
iner saw it, was no more than a confession of "poor timing" with
respect to the abolition of overtime.
It may be true that the campaign of employees Wilson and Nuzzolese
against the Union may have had some bearing on the Union's loss of
majority. But this is a matter of speculation. The fact remains that
the Union achieved its majority status notwithstanding the counter-
activities of these two employees, and it was not until Respondent
intervened in the campaign and engaged in unlawful coercive conduct
that there is evidence of employee defection from the Union. It is.
4 Irving Air Chute Company, Inc ., 149 NLRB 627 , enfd. 350 •F. 2d 176 (CA 2) ;:
Permacold Industries, Inc., 147 NLRB 885.
MASTER TRANSMISSION REBUILDING CORP., ETC. 369•
reasonable to conclude that the Respondent's unlawful conduct lent
impetus to the antiunion campaign waged by Wilson and Nuzzolese..
Indeed, the first evidence of the antiunion petition, which gives some.
indication of the Union's loss of majority, appears on February 5, the,
date on which Rowland delivered the coercive speech in which he,
angrily attacked the Union.
We find, on the basis of the record as a whole, and in disagreement
with the Trial Examiner, that the Respondent's failure to respond to,
the Union's request for recognition and bargaining constituted a.
refusal to bargain.5 The conduct of Respondent's officials and super-
visors made it clear that such refusal was in bad faith and motivated
by a desire to gain time in which to undermine the Union's majority
status and that such conduct was in violation of Section 8(a) (5) -and
(1) of the Act.'
Assuming, however, that we were to agree with the Trial Examin-
er's finding that Respondent's failure to answer the Union's letter
demanding recognition was not in violation of Section 8(a) (5), our
Order would nevertheless be unaffected thereby, for we would then
direct Respondent to bargain with the Union, upon request, on the
basis of its violations of Section 8(a) (1) subsequent to the time the
Union achieved majority status.7
REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices violative of the Act, we shall order that it cease and desist there-
from and take certain affirmative action designed to effectuate the
policies of the Act.
We have found that the Respondent violated Section 8 (a) (5) of the
Act by refusing to recognize the Union and bargain in good faith.
We shall therefore order that the Respondent cease and desist from
refusing to bargain, and shall further order that the Respondent bar-
gain, upon request, with the Union as the exclusive representative of
the employees in the appropriate unit and, if an understanding is
reached, embody such understanding in a signed agreement.
Having found that the Respondent suggested the formation of an.
employee committee and assisted and supported such Employees.Com-
mittee,, thereby having violated Section 8(a) (2) of the Act, we shall
order that the Respondent cease and desist from suggesting to its.
employees the formation of such committees, cease and desist front
recognizing the Committee, a.nd cease and desist from giving the Com-
mittee support and assistance.
s Perniacold Industries, Inc., supra.
Joy Silk Mills, Inc., 85 NLRB 1263, enfd . as modified on other grounds 185 F. 2d 752t'
(C.A.D.C.), cert. denied 341 U.S. 914.
1 Irving Air Chute Company , Inc., supra.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONOLUSIONs OF LAW
1. Master Transmission Rebuilding Corporation & Master Parts,
Inc., is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Association of Machinists, AFL-CIO, District
Lodge No. 87, is a labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating its employees, threatening to move its plant, to
cut hours of employment, and to take other reprisals against employ-
ees if they engaged in union activities, and by prohibiting union dis-
cussions on employees' nonworking time, the Respondent has violated
Section 8(a) (1) of the Act.
4. By suggesting to its employees the formation of an employee
committee and by assisting, supporting, and contributing financial
support to such Employees Committee, the Respondent has engaged
in and is engaging in unfair labor practices in violation of Section
8(a) (2) of the Act.
5. By cutting the hours of employment of the employees because
they had engaged in union activities, the Company has also violated
Section 8 (a) (3) and (1) of the Act.
6. All production and maintenance employees employed at the
Respondent's Fresno, California, plant, including repairmen and parts
employees, but excluding office clericals, professional employees,
guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
7. At all times since January 22, 1964, International Association of
Machinists, AFL-CIO, District Lodge No. 87, has been the exclusive
representative of all the employees in the aforesaid unit for the pur-
poses of collective bargaining with respect to rates of pay, wages, hours
of employment, or other terms and conditions of employment.
8. By refusing, on February 5, 1964, to bargain collectively with
the aforesaid labor organization as the exclusive representative of its
employees in the appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section
8(a) (5) and (1) of the Act.
9. The unfair labor practices enumerated above are unfair labor
practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
MASTER TRANSMISSION REBUILDING CORP., ETC. 371
Respondent, Master Transmission Rebuilding Corporation & Master
Parts, Inc., Fresno, California, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Coercively interrogating employees concerning their union
activities and sympathies, warning and threatening employees of
reprisals if they engage in union activities including union solicitation
on nonworking time, and threatening employees that it would close
and move its plant to prevent its unionization.
(b) Suggesting to employees the formation of an employee com-
mittee, and assisting, or contributing financial or other support to,
such Employees Committee, or any other labor organization.
(c) Discouraging membership in International Association of
Machinists, AFL-CIO, District Lodge No. 87, or any other labor
organization of its employees, by reducing the hours of gainful em-
ployment of the employees, or in any other manner discriminating
against employees in regard to their hire or tenure of employment,
or any term or condition of employment.
(d) Refusing to bargain collectively concerning rates of pay, wages,
hours of employment, or other terms and conditions of employment,
with International Association of Machinists, AFL-CIO, District
Lodge No. 87, as the exclusive representative of its employees in the
following appropriate unit :
All production and maintenance employees employed at the Re-
spondent's Fresno, California, plant, including repairmen and parts
employees, but excluding office clericals, professional employees,
guards, and supervisors as defined in the Act.
(e) In any other 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 International Association
of Machinists, AFL-CIO, District Lodge No. 87, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Associa-
tion of Machinists, AFL-CIO, District Lodge No. 87, as the exclusive
212-809-66-vol. 155-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of all its production and maintenance employees, em-
ployed at the Respondent's Fresno, California, plant, including repair-
men and parts employees, but excluding office clericals, professional
employees, guards, and supervisors as defined in the Act, with respect
to rates of pay, wages, hours of employment, and other terms and con-
ditions of employment and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Withdraw and withhold all recognition from the Employees
Committee, or any successor thereto, as the representative of its em-
ployees for the purpose of dealing with Respondent concerning griev-
ances, wages, rates of pay, hours of employment, or other terms and
conditions of work.
(c) Post at its plant in Fresno, California, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for Region 20, shall, after being duly signed
by the Company's representative, be posted by the Company immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
8 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 "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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, as amended, we hereby notify our employees that :
WE WILL NOT coercively interrogate our employees concerning
their union activities and sympathies, warn and threaten them
with reprisals for engaging in union activity, including union
solicitation on nonworking time, or threaten them that the plant
would be closed to prevent its unionization.
WE, WILL NOT suggest to our employees the formation of an
employee committee or assist or contribute financial or other sup-
port to such Employees Committee, or any other labor organiza-
tion of our employees.
WE WILL NOT discourage membership in International Associa-
tion of Machinists, AFL-CIO, District Lodge No. 87, or any other
MASTER TRANSMISSION REBUILDING CORP., ETC. 373
labor organization of our employees , by reducing the hours of
employment of the employees, or in any other manner discrim-
inating against them in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
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 , join or assist the labor organization
named above or any other labor organization , to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining , or other mutual aid or protection , and to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Sec-
tion 8 ( a) (3) of the Act , as modified by the Labor -Management
Reporting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with International
Association of Machinists, AFL-CIO, District Lodge No. 87, as
the exclusive representative of all employees in the bargaining
unit described below concerning rates of pay , wages , hours of
employment , and other conditions of employment , and, if an
understanding is reached , embody it in a signed agreement. The
bargaining unit is :
All production and maintenance employees employed at
the Respondent 's Fresno, California, plant, including repair-
men and parts employees , but excluding office clericals, pro-
fessional employees , guards , and supervisors as defined in
the Act.
WE WILL NOT recognize the Employees Committee or any suc-
cessors thereto for the purpose of dealing with us concerning
grievance, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work.
MASTER TRANSMISSION REBUILDING CORPOrLATION
MASTER PARTS, INC.,
Employer.
Dated---------------- By------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco,
California, Telephone No. 556-0335.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented,) was heard by Trial Examiner David
F. Doyle at Fresno, California, on September 23 through 25, 1964, on complaint
of the General Counsel and answer of Master Transmission Rebuilding Corpora-
tion & Master Parts, Inc., herein called the Respondent or the Company. The
Respondent had violated Section 8(a)(1), (2), (3), and (5) of the Act by certain
conduct more fully described hereinafter 2
At the hearing, the parties were represented by counsel and representatives and
were afforded a full opportunity to present evidence, examine and cross-examine
witnesses, and present oral argument and briefs. Briefs have been received from
the General Counsel and the Company which have been considered.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
It is undisputed that the Company has its main office and principal place of busi-
ness in Fresno, California, where it is engaged in the business of rebuilding automo-
tive transmissions for sale to its customers. During the year prior to the issuance
of the complaint, the Company purchased goods and materials valued in excess of
$50,000 which were shipped directly from places and points outside the State of
California to its places of business in California.
It is found that at all times material herein the Company has been an employer
engaged in commerce and in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded, and I find, that International Association of Machinists, AFL-CIO,
District Lodge No. 87, herein called the Union, is, and at all times material has
been, a labor organization within the meaning of Section 2(5) of the Act. The
complaint alleges that the Employees Committee is, and at all times material has
been, a labor organization within the meaning of Section 2(5) of the Act. This
allegation is denied in the Company's answer, and the resolution of this issue is an
object of this proceeding.
'Neither D. J. Omer nor Plato Papps were present at the hearing, but W. R. Whiteley
requested that their appearances be noted in order that they would receive future notices
of all action In this proceeding.
2In this Decision, a committee of employees of the Company are referred to as the
Employee Committee ; the National Labor Relations Board as the Board ; the General
Counsel of the Board and his representative at the hearing as the General Counsel ; and
the Labor Management Relations Act, as amended, as the Act.
The original charge in this proceeding was filed on February 7, 1964, by D J. Omer,
Grand Lodge representative of the Union. It alleged that on January 29, 1964, and on
February 4, 1964, the Company had discharged Jimmie C. Smith and Timothy T. Tyler,
Jr., respectively, because of their membership in the Union, In violation of Section 8(a) (1)
and (3) of the Act. A first amended charge was filed on March 2, 1964, by the same
union officer. It alleged that the Company had discriminatorily discharged Smith and
Tyler as stated above and, in addition, that the Company had refused to bargain with the
Union in violation of Section 8(a) (5) of the Act. A second amended charge was filed
on June 1, 1964, by the same officer of the Union and realleged the discriminatory dis-
charge of Tyler only In violation of Section 8(a) (1) and (3) of the Act and the formation
of the Employee Committee in violation of Section 8(a) (2) of the Act and a refusal to
bargain by the Company in violation of 8(a) (5) of the Act. A third amended charge
was filed by the same officer of the Union on July 15, 1964. This charge did not allege
the discriminatory discharge of either Tyler or Smith, but alleged that the Company had
interfered with a labor organization known as the Employees Committee on February 25,
1964, and had refused to bargain with the Union since on or about January 23, 1964, in
violation of Section 8(a) (1), (2), (3), and (5) of the Act.
The complaint herein was issued by Acting Regional Director Paul A. Cassady, Region
20, on July 24, 1964.
It should be noted that all dates in this report are In the year 1964, unless specified
otherwise.
MASTER TRANSMISSION REBUILDING CORP., ETC . 375
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The union and antiunion activity; the union and antiunion groups
It is undisputed that in January 1964 some representatives of the Union called at
the plant of the Company during the lunch period. A number of employees were
seated in front the plant having their lunch. Similarly occupied at the same time
and place were General Manager Hugh E. McGuinigie and Plant Superintendent
Robert W. Lawley. The union representatives chatted with the employees and gave
them some blank union authorization cards. During the days that followed, the
cards were circulated and some employees signed the cards. Employee Dale Chevoya
collected these cards and turned them over to a representative of the Union a few
days prior to January 22, 1964. Fifteen employees signed the cards, which were
received in evidence. The names on the cards and the dates of signing are as follows:
Dale Chevoya__________________________ January 10, 1964.
C. S. Napier___________________________ January 10, 1964.
Gene M. Eagles________________________ January 10, 1964.
Frank E. Hansen_______________________ January 11, 1964.
Manuel B. Viayno______________________ January 13, 1964.
Larry K. Anderson_____________________ January 14, 1964.
Harold D. Anderson____________________ January 14, 1964.
Timothy T. Tyler, Jr------------------- January 14, 1964 (Terminated).
Paul H. Cron__________________________ January 14, 1964.
Raymond Sosa_________________________ January 14, 1964.
David E. Williams---------------------- January 17, 1964.
Jimmie C. Smith_______________________ January 17, 1964 (Terminated).
John Schlegel__________________________ January 20, 1964.
Mario Alverez__________________________ January 20, 1964.
Fay Hill_______________________________ January 20, 1964.
It is undisputed that on January 22, Whiteley, business representative of the Union,
sent a letter by certified mail to the Company, "Attention: Frank Rowland, Owner."
This letter notified the Company that the Union claimed to represent a majority of
its employees in an appropriate unit of production and maintenance employees and
parts men. It also stated that the Union sought to meet with the Company "at the
earliest possible date for the purpose of negotiating and consummating a collective
bargaining agreement." This letter, sent by certified mail, was received by the
Company on January 27. Marge Pumphrey, office clerical, signed the mail receipt.
It should be noted that this letter demanding recognition and bargaining, contained
no reference to union authorization cards, and made no offer to prove the majority
of the Union in the unit of employees by any means, card check or otherwise.
At the hearing, and in his brief to me, the General Counsel attaches importance
to the fact, and claims, that the Company never replied to this letter. As will be
seen that claim is not entirely accurate. The reason for the Company's failure to
answer immediately has a very simple explanation in the testimony. At the hearing
President Frank C. Rowland testified credibly that he was out of town on a business
trip from January 22 to February 4. When counsel for the Company produced
documents such as canceled checks for hotel bills, etc., the General Counsel con-
ceded that Rowland was out of town for that period of time. McGuinigie, who was
in charge during Rowland's absence, testified that he placed the Union's letter of
January 22 on Rowland's desk to receive Rowland's attention when he returned.
It is undisputed that the letter received by the Company on January 27 was unan-
swered on February 4. On that date, the Union filed a petition for certification of
representatives with Region 20, seeking certification as bargaining representative of
all production and maintenance employees of the Company.
It is likewise undisputed that President Rowland returned to Fresno on the evening
of February 4 and went to his office at the Company on the morning of February 5.
There he received first a notification from the Regional Office that the Union had
filed a representation petition. A copy of the petition was attached to this notice.
The form of the petition has an appropriate line to show that the petitioning union
has asked for recognition and that it has been denied. In the instant petition that
line reads as follows, "Request for recognition as Bargaining Representative was
made on January 22, 1964 (Letter) and Employer declined recognition on or about
... no reply."
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rowland testified credibly that when he read this statement in the petition, he
phoned the Regional Office and spoke to someone there, telling the official that he
had never received any letter or demand for recognition from the Union. The person
to whom he spoke in the Regional Office told Rowland that he would check the
matter and call back. An hour or so later the official in the Regional Office called
Rowland and told him that a letter requesting recognition had been received by his
Company by certified mail on January 27. Rowland and McGuinigie then searched
for the letter and found that it had been covered by other correspondence, advertise-
ments, etc., on Rowland's desk and had not been opened. As will later appear, this
conversation and receipt of the petition was received by the Company on February 5
and the Company placed the matter in the hands of the law firm of Doty, Quinlan,
and Kershaw, who were retained as counsel by the Respondent on February 6. On
the same day, February 6, Paul K. Doty answered the Union's letter as follows:
Re: Master Transmission Rebuilding Corporation
Dear Mr. Whiteley: This is to advise that the undersigned represents the
Master Transmission Rebuilding Corporation and in reply to your letter of
February 5, 1964 in regard to the termination of the employment of Timothy
T. Tyler and Jimmie C. Smith, this is to advise:
(1) That these employees were terminated prior to any claim of repre-
sentation made by your office;
(2) That the subject employees were laid off for economic reasons and
due to the fact that they had the poorest production records of all employ-
ees employed by this company.
If there is any further discussion in regard to their termination, kindly advise
the undersigned.
Insofar as the petition filed for an election as of February 4, 1964 (Case No.
20-RC-5770), we undoubtedly will consent to the election at an early and con-
venient time. [Emphasis supplied.]
In passing , it should be noted that there is no allegation in this complaint that
either Tyler or Smith was treated unlawfully in any way by the Company. This
charge was dropped in the course of investigation.
It is clear that the efforts of some employees to obtain signatures to the union
authorization cards provoked some activity on the part of employees who were
opposed to the Union. John Wilson, the test machine operator at the Company,
testified credibly and without contradiction that when he saw the union cards being
circulated that he and some fellow employees took action to oppose the Union's
organizing efforts. He testified that there were a number of the men in the plant, like
himself, who had some experience with the Union and were not desirous of having
any more dealings with it. Wilson testified that since these men did not want to
deal with the Union, that he proposed that they should do something about it. They
met and discussed the situation. Wilson testified that he figured that "it was reason-
able to assume, that if the union could circulate a petition, that I (he) had the same
American rights to do the same thing." He and employee Nuzzolese drafted a peti-
tion and circulated it among the employees. Several employees who had signed
cards for the Union told Wilson that they were really "on the fence"; that they had
signed cards but wanted to do what the majority of the employees desired; they were
neither for nor against the Union. Wilson then pointed out to these men the disad-
vantages which he saw in unionization with the result that 12 employees signed the
Wilson-Nuzzolese petition. This petition came into evidence and it reads as follows:
Petition to be heard: Feb. 5, 1964.
We the undersigned, being employed by Master Transmission Inc., and, or
Master Parts, Inc., do herein-petition the following:
Being regular and full time employees of the above named company we here-in
state that we here hold positions with this firm with which we are satisfied, with
working conditions and all other conditions of our employment , including wage
and benefits. Being aware of a petition for a union shop, we here, below listed,
do here-in state our desire to not enter into any contract or agreement with any
union group whatsoever which may be interested in the organization of this
firm's employees for the purpose of bargaining , arbitration, or any other dealings
of employee and employer relationship.
MASTER TRANSMISSION REBUILDING CORP., ETC. 377
This petition is being circulated and signed without the approval or knowledge
of the management staff of this firm. Being here drafted and circulated by John
Wilson, employee.
John W. Wilson
Salvatore Nuzzolese
Manuel B. Viayno
Rudolph Anselman
Jess W. Fike
Gene M. Eagles
Kenneth A. Knapp
Harold Anderson
Melvin C. Knapp
Jim Tiner
Dave Williams
Fred Coons 3
Fay Hill
In connection with the above petition and the union authorization cards, it should
be noted that employees Eagles, Viayno, Harold Anderson, Williams, and Hill signed
both union authorization cards and the antiunion petition of Wilson. The names of
these men have been italicized in the listing of both union and antiunion adherents.
It should also be noted that, in this transcript of testimony, there is not one word
of testimony or other evidence that would indicate that the action of Wilson and
Nuzzolese in drafting and circulating this petition against the Union was inspired by
any conduct of the Company or its supervisors. Quite to the contrary, Rowland
testified he didn't know of the petition until the hearing, and Wilson testified that
his action was on his own initiative alone. In his testimony, Wilson said that he had
experience with unions and wanted no further dealings with them. The General
Counsel did not ask him why he did not like unions. In my judgment, Wilson dem-
onstrated that he is the type of independent thinker who takes such action as he
deems proper to protect his own interests and to protest against any group move-
ment of which he does not approve.
Wilson testified that all the signatures on the petition were obtained on February 5,
and that shortly thereafter he delivered the petition to counsel for the Company.
B. The meeting of Rowland and employees on February 5
It is undisputed that on February 5, after he had ascertained the facts of the filing
of the petition, President Rowland addressed the employees who had been assem-
bled for that purpose. Several employees were called as witnesses by the General
Counsel to testify to what Rowland said on this occasion and other employees were
called by the Company to state their version of this speech. Rowland also furnished
his version.
Employees Harold Anderson, Napier, Hanson, and Chevoya testified for the Gen-
eral Counsel. A composite of their rather lengthy testimony, which states the
General Counsel's case, is as follows: When the employees were assembled, Row-
land, who appeared angry, told them that he was angry because the employees had
gone behind his back in contacting the Union. He said there would be no union in
the shop; that he would fight the Union all the way; and that he would close the
Fresno plant to keep the Union out. He said that the employees were pushing him
and he would push back; that the men wanted a union workweek, so he was cutting
their hours of employment from 461/2 hours per week to 40 hours. He also said that
the employees were not to discuss the Union on their coffee breaks because he was
paying for that time.
Employees Wilson, Fike, and Nuzzolese furnished a somewhat different version
of Rowland's speech. According to these witnesses, Rowland appeared upset, and
said that he was upset because the men had gone behind his back in contacting the
Union. Evidently they were unhappy about something, but they had never talked
to him about it. He asked what was wrong. Employee Napier spoke up and said,
"Wages." Rowland then asked Napier when he had received his last wage increase
and Napier said, "about six weeks ago." Employee Cron said that he thought the
Company should repair the employees' impact guns at company expense. Rowland
answered that the Company was then replacing the switches in the guns as needed.
9 Coons was not in the appropriate unit.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he felt that something could be worked out as to repairs. Then Rowland said
that if the men wanted to go union, that it was perfectly all right with him, that he
did not want to go union, but if they wanted the Union, it was all right with him.
These witnesses denied that Rowland made any statement to the effect that he
would move the plant rather than go union, or that he had joined with anybody to
blacklist the employees who wanted the Union. These witnesses testified in general
that Rowland said that the "core pile" (old transmissions to be rebuilt) was low
and that he had been keeping the men occupied on "clean up jobs," etc., and that he
was going to cut the hours from 461/2 to 40 hours per week for that reason. That
concluded this meeting.
C. Rowland retains counsel
According to the testimony of President Rowland, which is undisputed, on the
evening of February 5 he discussed the union situation with his brother, Wallace
Rowland, who operates a competing transmission company, and with Jack McCarty,
who also operates a similar and competing transmission shop. Rowland said that
his brother was not concerned with the union activity because his shop was small
and not in interstate commerce. However, McCarty and Rowland decided to con-
sult the law firm of Doty, Quinlan & Kershaw on the matter. These two, Rowland
and McCarthy, conferred with Paul Doty, Esq., on the next day, February 6. Accord-
ing to Rowland, he retained the law firm in the course of this conference, but McCarty
was not satisfied with the advice of counsel, so he did not retain the law firm.
It should be noted in this connection that this one conference with Doty is the only
event which in any way connects McCarty or his company with the events of this
proceeding.
Rowland testified credibly, and there is no contrary evidence, that he alone is the
owner of the Company and that he has no direct or indirect interest in the company
of his brother or that of McCarty.
D. The meeting of Rowland and employees on February 7
It is undisputed that on February 7 Rowland called a second meeting with employ-
ees. All the witnesses seemed to be in agreement that Rowland's first remarks were
that he had consulted with an attorney, and now knew his legal position as to what
he could and could not do. He said that pursuant to advice of his counsel he would
consent to an election among the employees as to whether they wanted the Union
or not. Further, counsel had informed him that his reduction of hours from 461
to 40 hours was "had timing" and he was restoring the workweek to 44 hours. At
that point the testimony of the witnesses, as to what Rowland said, diverges.
Dale Chevoya, the leading union adherent, testified that Rowland said that he was
"not going union" and that Wally Rowland and Jack McCarty had banded together
with him to keep the Union out of the plants. Rowland said they would get every
transmission shop in town to help beat the Union. Employee Harold Anderson
supported this facet of Chevoya's testimony.
Employee Wilson, the antiunion leader, testified that Rowland did not make any
threat to move the plant and did not say anything about "blacklisting" employees.
He testified that in the course of the February 7 meeting somebody asked Rowland
how long negotiations with the Union for a contract might take, after an election in
which the Union was successful. Rowland replied that it might take 6 weeks or
6 or 8 months, depending on the negotiations.
Employee Nuzzolese testified that Rowland said that he didn't want to go union,
but if the employees voted for the Union he would have to go along with it.
On his part, Rowland testified that after talking to counsel he addressed the employ-
ees on this date. He told the employees that he had been to an attorney and now
knew what he could, and could not, legally do. He said that he would consent to
a Board-conducted election by secret ballot, and that the employees could vote any
way they wanted. Some of the employees had told him that McCarty had "gone
union." He told the employees that this was not true; that he and McCarty had
consulted the same lawyer to see what their rights were under the law. He said that
if the Union won the election, he would have to bargain in good faith with the
Union for a contract. Some employees asked how long that would take and he
replied that depended on the negotiations; that his lawyer had said that it might take
6 weeks or 6 months; no one could tell. Then some employee asked what happened
if the Union and he did not agree on a contract. He replied that he supposed the
Union would strike. Then some employee asked who would be on the picket line.
Rowland replied that he supposed those men who wanted the Union. Then the men
became embroiled in argument between themselves and the meeting ended.
MASTER TRANSMISSION REBUILDING CORP., ETC. 379
E. The election
It is undisputed that pursuant to a consent-election agreement, executed by Row-
land for the Company, Omer for the Union, and Brant for the Regional Office of
the Board on February 14, a Board-conducted election was held on February 24,
1964. The tally of ballots shows the following results:
Approximate number of eligible voters------------------------------- 20
Votes for Union-------------------------------------------------- 6
Votes against Union---------------------------------------------- 12
Challenged ballots------------------------------------------------ 1
F. The post election speech of Rowland
It is undisputed that on the day following the election, Rowland again addressed
the assembled employees.
Rowland testified that the meeting was called to thank the employees and to
reestablish harmony and thus restore morale and production. To restore good feel-
ing in the plant, he told the employees that in the future the Company would give
the employees the profits from the coke, cigarette, and coffee machines in the plant.
This had been done on occasions in the past to give the employees funds for a party.
He also suggested that the employees elect a committee by secret ballot to handle
the funds and to bring to him any suggestions that "would help production." He
told them that "this committee had nothing whatsoever to do with wages or anything
that might be construed that it was a type of labor organization, that it was not."
Rowland testified that the committee had presented two suggestions to him: that
the the Company install additional work benches, and provide better lighting and
additional "dunk-tanks," used in the cleaning of old, greasy parts. He accepted these
suggestions and installed a few additional lights and "dunk-tanks." He suggested
that the employees use the fund derived from the automatic vending machines as a
small loan fund for their benefit, but as far as he knew the profits of the machines
had been used, pursuant to a vote of the employees, to defray the expenses of a
"beer bust" which the employees voted to hold at Millerton Lake.
G. Objections to the election; the setting aside of the results of election
It is undisputed that on February 28, D. J. Omer, Grand Lodge representative of
the Union, filed objections to conduct affecting results of election. In brief, these
alleged that the Company on or about February 10 had made threats of reprisals
against the employees if they affiliated with the Union, and thereby had interfered
with the fair conduct of the election. The Regional Director assigned the investiga-
tion of the objections to Donald E. Twohey. Twohey went to Fresno and took a
21-page sworn statement from Rowland. It is noteworthy that at this interview,
which according to Rowland took approximately 4 hours, Rowland was not assisted
by his counsel. Shortly thereafter the Regional Director, by his supplemental report
on objection, issued September 21, 1964, set aside the results of election on the
grounds, among others, that "President Rowland has admitted he was angered by
the action of his employees in seeking representation and that, as a consequence, he
may have announced the reduction in hours of employment at this meeting."
H. Individual incidents of alleged coercion or discrimination
Employee Harold Anderson testified that on or about February 7, Rowland called
Anderson to his office and told Anderson that his rate of wages was to be changed.
Up until that time Anderson, who was the Company's own parts man, had been paid
on a monthly basis, but on this occasion his rate of pay was changed to an hourly
rate. In the course of his testimony Rowland said that the only reason for changing
Anderson's rate of wage was to conform with the requirements of the Fair Labor
Standards Act. He stated that to give Anderson approximately the same rate of
wage on an hourly basis as he had received on a monthly basis, they had given
Anderson a small increase.
On this conflict in testimony I credit the testimony of Rowland, which is not con-
tradicted in any particular. Anderson, on the other hand, on cross-examination
admitted that Rowland said something to him about changing his basis of pay to
conform to interstate commerce regulations. On this point I am satisfied that
Rowland is the more reliable witness.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Chevoya testified that about this time, February 7, Rowland posted a
notice on the bulletin board which stated that employees who were frequently tardy
would be laid off for a day or discharged. Chevoya testified that he felt this notice
was aimed at him so he went to Rowland and spoke to him about it. Rowland told
him that the purpose of the notice was to require Chevoya and a couple of other
employees to cease being tardy and to get to work on time. Chevoya, in his cross-
examination, admitted that he was late on the average of two or three times every
week. Rowland, at the request of Chevoya, took the notice down from the bulletin
board, saying to Chevoya that he thought the notice had achieved its purpose of
getting the men to work on time. Rowland's testimony as to this incident was simply
that he wanted to have Chevoya and others be prompt in getting to work, and that
he took the notice down at Chevoya's request. On a consideration of all the evidence
on this incident, I conclude that there was nothing of a coercive or discriminatory
nature in Rowland's posting of this tardiness notice, which evidently Chevoya well
merited.
Employee Eagles testified that Wally Rowland, brother of President Rowland,
visited Eagles at the Company's factory. In the course of the conversation which
the men had, Wally Rowland told Eagles that his (Rowland's) brother, Jack McCarthy
(the owner of a competing transmission shop), and he (Wally Rowland) had gotten
together to keep the Union out of their shops and that they had the union instigators
pegged and that if any employee lost his job as the result of the organizing activity
that the three of them would prevent his obtaining employment elsewhere even if
they had to pay another employer not to hire the discharged employee. This testi-
mony of Eagles was received at the hearing subject to being connected with the
Respondent. This transcript of testimony contains absolutely no evidence which
could be the basis for attributing this conduct of Wally Rowland to his brother or
this Respondent. The testimony which was to connect this incident with the Respond-
ent was never produced; consequently I hereby grant the motion which counsel for
the Respondent renews in his brief to strike this testimony. I also hereby dismiss
the corresponding allegation in the complaint.
Employee Dale Chevoya testified that on or about January 27, Supervisor McGuini-
gie, zone manager for the Company, called Chevoya to his office. When Chevoya
arrived at the office he found McGuinigie accompanied by Plant Superintendent
Lawley and Shop Foreman Young. The four men sat around a desk, with McGuini-
gie and Chevoya facing each other. According to Chevoya, McGuinigie asked him
what all this "Union crap" was about, and said that he understood that Chevoya was
the ringleader of the union adherents. Chevoya denied that he was the ringleader
and stated that he didn't know anything about the Union's activities. Chevoya tes-
tified that then McGuinigie told him that the Company was not going to "go union."
Chevoya also testified that he noticed a letter on McGuinigie's desk which was open
before McGuinigie. From where he sat Chevoya could see the letter, but the writing
was faced toward McGuinigie. However, Chevoya testified that he thought the
letter was from the Fresno Area District Lodge No. 87, 1AM, the Charging Party
in this case. This testimony of Chevoya as to the letter is evidently the basis for the
General Counsel's extreme reluctance to accept the testimony of President Rowland
that he did not open the letter of District Lodge No. 87 demanding recognition until
February 5, as has been related.
In his testimony McGuinigie stated that on the occasion upon which Chevoya was
called to his office, he asked Chevoya what was the cause of all the argument going
on in the plant. McGuinigie said that he knew from the amount of bickering going
on that there was something disturbing the men and he had heard rumors that they
were talking prounion and antiunion. Chevoya told him that there were arguments
about the Union but that Chevoya knew very little about it. McGuinigie told
Chevoya that President Rowland would not want to go union and that if he wanted
to Rowland could buy an island and run the plant from there. McGuinigie said that
this was a very friendly conversation and that his remarks to Chevoya were facetious.
Upon the testimony stated above, I find that Chevoya was called to the office of
McGuinigie as Chevoya related and that he was interrogated by McGuinigie as to
whether Chevoya was the ring-leader of the union adherents and that McGuinigie
told Chevoya that Rowland could buy an island and operate the plant from the
island. These remarks which might have seemed facetious to McGuinigie were
coercive and threatening in nature and constitute a violation of Section 8 (a) (1) of
the Act. This finding is predicated upon the admission of McGuinigie, principally,
and not on the testimony of Chevoya, because as the transcript of testimony demon-
strates, Chevoya must be classified as an unusual witness. Chevoya was one of the
MASTER TRANSMISSION REBUILDING CORP., ETC. 381
leaders of the Union, but on direct examination the General Counsel experienced
the utmost difficulty in extracting testimony from Chevoya. Chevoya is an alert
appearing young man, but he seemed to have extreme difficulty in understanding
the General Counsel's questions and in formulating his answers to them. He seemed
to be laboring honestly to understand the question and give an appropriate answer.
Sometimes the answer was appropriate, but sometimes Chevoya's answer did not
respond to the question. At one point the General Conusel requested permission
to question Chevoya as an adverse or hostile witness, but he was the acknowledged
leader of the union adherents and appeared to be trying to understand and trying to
cooperate with the General Counsel, so this request of the General Counsel was
denied by me. However, the record is replete with references to the difficulty of
extracting answers from the witness by all counsel and me. Finally counsel for the
Respondent asked me to ascertain the reason for Chevoya's lack of comprehension
on some items of testimony by saying that he had been in a horrible accident. I
then asked Chevoya about the accident and Chevoya replied that he had recently
been involved in a serious accident in which he had received severe injuries to his
head. Chevoya very frankly said that the injuries to his head had disturbed his
mental processes and for that reason he was slow in comprehending the questions
and in formulating his answers. Under the circumstances, I cannot place reliance on
Chevoya's testimony that he read the letter on McGuinigie's desk on this occasion.
Employee Napier testified that about this same date, Superintendent Lawley told
him that he was considered to be one of the ringleaders of the Union. Lawley also
warned Napier that any employee caught talking about the Union would be dis-
charged. I find that this conduct of Lawley was also violative of Section 8(a)(1) of
the Act.
Concluding Findings
Upon a consideration of all the evidence, I find that the General Counsel has
proven by a preponderance of the evidence certain allegations of the complaint, but
has failed to prove other allegations.
In considering the testimony of the witnesses, it is undisputed that there was a
sharp conflict between those men led by Chevoya and Napier who favored the Union
and those men led by Wilson and Nuzzolese who were against the Union. This
sharp conflict between these groups of employees was evidenced in their testimony
because both groups seemed to evidence strong partisanship. Of all the witnesses,
Rowland testified in the most forthright and candid manner. His testimony as to
his course of conduct is clear, and consistent with the undisputed facts and other
evidence, also it is substantially the same as Rowland gave in a sworn statement to
Field Examiner Towhey on March 7, when Rowland was interviewed without the
assistance of his counsel. I credit Rowland's entire testimony; however, his testi-
mony discloses that in some particulars, his conduct violated certain sections of the
Act, but as to other items of his conduct, I accept his explanation.
Conclusions as to Refusal to Bargain
The General Counsel in his complaint alleges that the Company refused to bar-
gain on or about January 22, 1964. The General Counsel bases this contention on
the fact that the Company did not answer the Union's letter of January 22. The
uncontroverted testimony shows that President Frank Rowland was on an extended
business trip from January 22 to the morning of February 5. Counsel for the
General Counsel after seeing certain documents which established this absence on
the part of Rowland stipulated that Rowland was absent from Fresno between those
dates. Rowland testified that the Union's letter was not received by him and opened
until February 5, 1964, the same date on which he received a copy of the Union's
petition for certification from the Regional Office. The General Counsel seems,
most unreasonably to me, to view Rowland's testimony in this regard with the
utmost suspicion. From his argument on this this point, one would think that a
letter being left unopened during an executive's absence from the city was a rare
and remarkable event. I deem Rowland's explanation of this incident adequate in
all respects. When the petition and the letter came to his attention on the morning
of February 5, he called the Regional Office and ascertained the facts of the mat-
ter. That evening he consulted his attorney who, on the following day February 6,
promptly notified the Union that the Company would consent to an election. Shortly
thereafter a representative of the Union, the Regional Office, and Rowland exe-
cuted a stipulation for consent election. This was not the conduct of a company
who wished an election for purposes of delay, while it undermined the Union's
majority. And it is certainly not the typical card-check case, in which an employer
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refuses to engage in a card check offered by the Union and insists on the election
procedure for purposes of delay, which the employer uses to undermine the Union's
majority. Here, there is no such proffered card check. In its letter of January 22
the Union demanded recognition and bargaining; it claimed a majority in the unit
but made no offer to prove it in any way. The petition of the Union supplied that
deficiency; the election procedure was the one and only way selected by the Union to
prove its majority. When the Company consented to the proposed procedure, it
was required to do no more in that regard.
Upon reading the petition for certification and the Union's letter on February 5,
it is clear, and I find, that Rowland was angry with the employees and made a speech
to them in which he told them that since they wanted union conditions he would
give them a union workweek for 40 hours, thereby cutting them 61/2 hours per
week. This was coercive and discriminatory conduct under the Act. However, I
credit Rowland's testimony which seems to be more reliable rather than the testi-
mony of either group of employees, which testimony is marked by considerable
confusion and variance as to what Rowland said in the remainder of the speech. I
find the evidence insufficient to establish that Rowland in this speech said that he
would either close or move the plant if the Union came in. In the light of the
testimony of Nuzzolese and Wilson on this point, which I credit, I also find that
Rowland did not say that he and the other transmission shops in town had banded
together to beat the Union and to blacklist any men who joined the Union.
It is undisputed that on the next day Rowland and McCarthy sought the advice
of counsel as to their rights in the matter of the pending petition. Rowland was
satisfied with the advice of counsel, but McCarthy was not and McCarthy thereafter
was not involved in any way with Rowland. Pursuant to the advice of counsel, on
February 7 Rowland made a second speech to the employees in which he retracted
the principal items of his speech made to them on February 5. I find that in this
speech he told them that he was restoring them to 44 hours per week. Rowland's
testimony that shortly thereafter the employees were returned to 461/2 hours per
week was not challenged in this record. All the employees and Rowland agreed
that at this time the "core pile" was low and that Rowland did not have sufficient
work on hand to keep all employees gainfully employed 461/2 hours per week on
rebuilding transmissions . All the employees in their testimony seemed to be in
agreement that during this period some of the employees were almost continually
doing "make-work"-cleaning and painting the plant. Therefore, I credit the state-
ment of Rowland that on February 7 he returned the employees to full work time,
and that any hourly periods which the men lost during the ensuing 3 weeks was due
to economic conditions.
I deem it highly significant that after February 7, Rowland and his supervisors
did not take any action which could be considered of a coercive, interfering, or dis-
criminating nature. On February 7, he told the men that it was their right to vote
as they chose, and the evidence would indicate that he thereafter did not interfere
with the men's exercise of their rights under Section 7 of the Act.
According to all the witnesses, the period from February 7 to the date of the
election on February 24, was marked by considerable activity among the union and
antiunion employees. It is undisputed that the Union received 6 votes in this elec-
tion and that there were 12 votes against the Union.
The General Counsel in his brief asked that an order be issued to the Respond-
ent requiring it to bargain with the Union on the basis of the Board's decision in
Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D.C.), and Bernet
Foam Product Co., Inc., 146 NLRB 1277. Under the circumstances found herein, I
do not believe that such an order would be lawful. While it is true that Rowland's
speech of February 5 had a coercive element in it, due to the reduction of hours of
the men, on February 7 Rowland retracted his statements and told the men that they
were to vote as they pleased. On this record, I cannot find that the employer sought
an election for the purposes of delay while he undermined the Union's majority, as
stated previously.
Furthermore, I must find that the evidence of the Union's majority in the appro-
priate unit in this case is insufficient. Prior to February 5, two of the Union's
staunchest adherents, Smith and Tyler, had left the employment of the Company for
reasons not disclosed in this record and not here involved. Also, according to
Wilson's testimony, which I credit, some men who had signed cards for the Union
signed the antiunion petition. These employees were five in number, Viayno,
Eagles, Harold Anderson, Dave Williams, and Fay Hill. To me, it seems clear, and
I find, that this conduct of the five employees, in signing the antiunion petition effec-
tively withdrew their authorization cards from any count to determine majority in
the unit. Furthermore, the election by secret ballot proved that the Union no longer
MASTER TRANSMISSION REBUILDING CORP., ETC. 383
possessed the adherence of these five employees . Therefore , I find, that the Union
never possessed a majority in the appropriate unit of employees after February 4.
While the General Counsel may argue that this lack of majority was caused by
the speech of Rowland on February 5, and the prior interrogations , that argument
does not give due consideration to the vigorous antiunion campaign of Wilson and
Nuzzolese which was an independent , intervening cause of the election results.
After all, Rowland had retracted his February 5 speech and after February 7 he
appears to have remained neutral. But the struggle continued between the two
groups of employees-those who desired to engage in union activities and those
who desired to refrain from union activities . Each of these groups had the right
under Section 7 of the Act to pursue these lawful objectives , and neither group
enjoys a right to preferred treatment under the Act at the hands of the Board. Under
the circumstances here, I cannot see how the Board can favor one group of employ-
ees over the other, without depriving the other group of its statutory rights under
Section 7 of the Act. The facts here, in my judgment, warrant the Board in issuing
an order remedying the unfair labor practices , with a new election to be ordered
when the effects of the unfair labor practices have been dissipated . An order to this
Company to bargain with the Union as the collective -bargaining representative of
all the men in this unit , would do violence to the rights of the majority , as evidenced
by the antiunion petition and the election tally.
Upon all the evidence , I find that after the election on February 24 Rowland in a
speech suggested to the men that they form a committee to manage the funds of the
coke and cigarette machines , etc , and to present suggestions to management for the
improvement of production in the plant . Thereafter , the Company received sug-
gestions from employees that the lighting be improved and that more "dunk tanks"
be installed . The Company complied with these requests . The Committee received
from the Company the proceeds of the coke and cigarette machines and , contrary
to Rowland 's advice, used the funds to provide a "beer bust " for all employees at
Millerton Lake.
Section 2 ( 5) of the Act defines a labor organization in the following terms:
The term "labor organization" means any organization of any kind, or any
agency or employee representation committee or plan, in which employees par-
ticipate and which exists for the purpose , in whole or in part, of dealing with
employers concerning grievances , labor disputes , wages, rates of pay, hours of
employment , or conditions of work. [Emphasis supplied.]
In the light of the above definition, I cannot find that the running of a beer-bust,
and the offering of suggestions as to the lights and dunk-tanks renders this Employees
Committee a labor organization . Evidently , the Committee is social in nature, and
does not exist for the purpose of dealing with the Company "concerning grievances,
labor disputes , wages, rates of pay, hours of employment, or conditions of work."
The allegation of a violation of Section 8(a) (2) is therefore dismissed.
All other allegations of the complaint, except those found to have been proven as
stated above , are hereby dismissed for lack of sufficient evidence.
In his brief counsel for the General Counsel requests that I reconsider one of my
rulings relating to the cross -examination of Rowland in which the General Counsel
sought to elicit information as to a conference between Rowland as client and Doty,
counsel for Respondent, as attorney. Upon objection which I considered proper, y1
restricted counsel's examination on the ground that it concerned a privileged com-
munication between attorney and client . The General Counsel 's request in his brief
is hereby denied inasmuch as I believe my ruling was proper under the circumstances.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company as set forth in section III, above , which occurred in
connection with the operations of the Company set forth in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8 ( a)(1) and (3) of the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the above findings of fact, and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Master Transmission Rebuilding Corporation & Master Parts, Inc , herein called
the Company or the Respondent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists, AFL-CIO, District Lodge No. 87, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By interrogating its employees and threatening them with reprisal if they
indulged in union activities, the Company has violated Section 8(a)(1) of the Act.
4. By cutting the hours of employment of the employees because they had engaged
in union activities, the Company has also violated Section 8(a)(3) and (1) of the
Act.
5. The unfair labor practices enumerated above are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Charles T. Reynolds , Sr., doing business as Charles T. Reynolds
Box Company, and Reynolds Pallet & Box Co. and Local 637,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Case No. 9-CA-2464. October 28,1965
SUPPLEMENTAL DECISION AND ORDER
On October 25, 1962, the National Labor Relations Board issued a
Decision and Order in the above-entitled case, finding that the
Respondents had discriminated against certain named employees in
violation of Section 8(a) (3) and (1) of the National Labor Rela-
tions Act, as amended.' Thereafter, the Board's Order was enforced
by the United States Court of Appeals for the Sixth Circuit,2 and a
decree was entered on December 27, 1964, against the Respondents.
The decree provided, inter alia, that Respondents make whole the
employees named therein for any loss of pay suffered by reason of the
Respondents' discrimination against them.
On November 2, 1964, the Regional Director for the National Labor
Relations Board for Region 9 issued a backpay specification, and the
Respondents filed an answer and amended answer thereto. Upon
appropriate notice issued by the Regional Director, a hearing was held
before Trial Examiner Thomas S. Wilson for the purpose of deter-
mining the amounts of backpay due the claimants.
On August 13, 1965, the Trial Examiner issued the attached Sup-
plemental Decision, in which he found that the claimants were enti-
tled to the amounts of backpay set out in the backpay specification,
1 139 NLRB 519.
2 Reynolds Pallet & Box Co. v. N.L R.B., 324 F. 2d 833.
155 NLRB No. 44.