Mitchell Standard Corp.

National Labor Relations Board - Board Decisions

Jan 7, 1963

140 N.L.R.B. 496 (N.L.R.B. 1963)

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Fifth Region, in writing, within 20 days
from the date of the receipt of this Intermediate Report, what steps the Respondent
has taken to comply herewith.24
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent, through its supervisor, Silas Foster, threatened an employee with
discharge or other reprisals if he became or remained a member of the Union or
gave any assistance or support to it.
u If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Fifth Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effecuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Textile Workers Union of America,
AFL-CIO, CLC, or any other labor organization , by discriminating as to the
hire, tenure , or any other term or condition of employment of any of our
employees.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their right to organize , to form, join , or assist a
labor organization , to bargain collectively through a bargaining agent chosen
by themselves , to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection ; or to refrain from any
such activities
WE WILL convert, on our payroll and personnel records , the discharge of
Raymond S . Tolley to a 2-week layoff or suspension , offer him his former of
a substantially equivalent job (without prejudice to seniority or other employ-
ment rights and privileges), and pay him for any loss suffered because of our
discrimination against him.
JAMES LEES AND SONS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act 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, 707 North
Calvert Street, Baltimore, Maryland, Telephone No. Plaza 2-8640, Extension 2104,
if they have any question concerning this notice or compliance with its provisions.
Mitchell Standard Corporation and United Furniture Workers
of America , AFL-CIO, and its Local 270. Case No. 26-CA-1191.
January 7, 1963
DECISION AND ORDER
On September 19, 1962, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that. the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
140 NLRB No. 44.
MITCHELL STANDARD CORPORATION 497
action, as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions, and the Respondent and General
Counsel filed briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report and the entire record in the case, including the ex-
ceptions and briefs, and finding merit in Respondent's exceptions,
adopts the Trial Examiner's findings, conclusions, and recommenda-
tions only to the extent they are consistent herewith.
1. We agree with the Trial Examiner that Respondent did not
violate Section 8(a) (1) of the Act by Faubus' interrogation of em-
ployee Lloyd Summerhill or by Daniels' alleged interrogation of ap-
plicants for employment about their union sentiments.
2. We do not agree with the Trial Examiner's finding that Re-
spondent refused to bargain with the Union in violation of Section
8(a) (5) and (1) of the Act.
For about 17 years prior to 1961, Mitchell Manufacturing Company
had had a succession of collective-bargaining agreements with the Un-
ion under which it recognized the Union as exclusive bargaining rep-
resentative of its production and maintenance employees. Pursuant
to a sales agreement dated September 15, 1961, Mitchell Manufactur-
ing ceased operations on September 30, 1961, at which time the plant
was shut down. Under the agreement, Respondent purchased all of
Mitchell Manufacturing's plant equipment, machinery, and fixtures.
However, contracts or obligations of the seller relating to manpower
were excluded.
' At the time of the sale of its plant, Mitchell Manufacturing had 94
employees on its payroll. Between September 22 and 30,1961, it grad-
ually laid off its personnel as it shut down operations. On Septem-
ber 20, shortly before it began to shut down, Mitchell notified its
employees, pursuant to an understanding with Respondent, that em-
ployment application forms were available for those who desired work
with the new company. Between September 22 and 30, many em-
ployees filled out applications and were interviewed for work with
Respondent. When Respondent opened the plant on October 2, it
hired only enough of its predecessor's employees to handle business on
hand, but, by the end of October, the payroll had increased to approxi-
mately 86 employees, nearly all of whom had formerly been employed
by Mitchell Manufacturing. Of the 86 employees on Respondent's
October payroll, 74 had signed union dues checkoff authorizations,
while employed by Mitchell.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after Mitchell Manufacturing notified the Union that it was
selling the plant, the Union learned that one Daniels, an incorporator
of the Respondent, was one of the buyers, and on September 11 sev-
eral union representatives conferred with Daniels concerning the
possibility of Respondent's either assuming the obligations of the exist-
ing contract or negotiating a new one. Daniels said he had no objec-
tion to recognition of the Union, provided the Union would consider
the starting problems of the new company. Between the time Re-
spondent was formed and September 20, union representatives had sev-
eral talks with Daniels and Respondent's attorney without reaching an
agreement. At one such conference, the union agents repeated their
request for immediate recognition, assured Respondent that they
recognized the problems confronting a new company, and said they
would favor negotiation of a new 2-year contract, if Respondent would
grant recognition as soon as it commenced operations. Daniels said
the proposition was attractive to him, since he wished to get the plant
operating quickly, but that he would have to consult his associates
before giving a final answer. The Union's regional director, Fitz-
simons, told Daniels that if Respondent did not grant recognition, he
would hand out cards to the employees and the Union would, in any
event, organize the plant. Daniels replied that if the Union did that,
and it was handled legally with an election, and the Union won, the
Respondent would, of course, recognize the Union and negotiate a
contract.
When Daniels discussed the Union's proposal with Dixon, who was
the prospective general manager of the new operation and who had
been employed in various supervisory capacities by Mitchell Manu-
facturing, Dixon advised that Respondent should not recognize the
Union. He and other top level supervisors summoned to present their
views, asserted, on the basis of employee remarks indicating dissatis-
faction with the Union and the representation it afforded them, a belief
that the Union did not represent a majority of the plant's employees
and that extension of recognition to it would be "unjust" to the work-
ers. On October 15, the Respondent's attorney informed the union
agents that, while Daniels still favored recognition of their local, the
Respondent would not extend recognition because of Dixon's convic-
tion that the Union did not represent a majority of the employees.
The Trial Examiner found, with ample support in the record, that
for about 2 or 3 years preceding the sale of the plant, the employees in
the unit had become increasingly dissatisfied with the Union; that their
dissatisfaction became open and vocal in 1959 or 1960 when the Union
began to check off special strike assessments along with regular union
dues; that their complaints about assessments became sharper and
more frequent in the spring of 1961 when the special assessments were
increased because of another strike; and that a number of employees
MITCHELL STANDARD CORPORATION 499
asked their shop stewards , and their supervisors , who had been shop
stewards, about the procedure for withdrawing from the Union. The
Trial Examiner concluded, as do we, "that Respondent had every rea-
son to believe that the employees were dissatisfied with their repre-
sentation by Local 270, and that some employees even wanted repre-
sentation by another local or even the Steelworkers Union, because
they felt that some other organization, like the Steelworkers, could
better understand and handle problems of a metalworking shop, in
contrast with the other woodworking plants in the area whose em-
ployees were represented by the Union."
In October 1961, the Union attempted to secure new authorization
cards from employees in the unit . Over a period of 2 or 3 weeks, 3 or
more union members solicited new designation cards from the em-
ployees, but secured only about 20 cards despite the fact that Respond-
ent did nothing to hinder or impede the solicitation. Indeed, there is
no evidence whatever tending to establish , or even to suggest, that any
of Respondent 's officials harbored a union animus.
The Trial Examiner recognized that resolution of the allegation
that Respondent refused to bargain collectively with the Union was
a question of fact requiring a determination whether Respondent
entertained a good-faith doubt of the Union's majority status. In
arriving at his conclusion that Respondent had no reasonable grounds
for a belief that the Union had in fact lost its majority status, the
Trial Examiner relied on the continuity of operations in the same
plant with essentially the same work force, doing the same jobs under
the same working conditions and the same supervision . He reasoned
that the current dues checkoff authorizations supported the pre-
sumption of continued union affiliation and majority status derived
from 17 years of collective bargaining with the Union . We agree
that these factors are relevant to the question whether Respondent
had an honest belief which would create a reasonable doubt as to
the continued majority status of the Union . However , under the cir-
cumstances revealed by the record, we evaluate somewhat differently
certain other factors enumerated by the Trial Examiner as militating
against his ultimate conclusion . These factors as listed by the Trial
Examiner were: (1) the lack of recent certification of the Union as
the bargaining agent; ( 2) the Union agent's assertion to Daniels in
September that they would get new union cards from the employees
if Respondent did not immediately recognize the Union, and Daniel's
reply that if that were done, and it was handled legally with an elec-
tion and if the Union won, he would quickly extend recognition; (3)
the Union 's failure to secure sufficient new cards , although Respond-
ent did nothing to impede or hinder solicitation of employees; (4)
Daniels' readiness to recognize and bargain with the Union, as he
had done with another union in his other business , thus indicating no
681-492-63-vol. 140-3 3
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposition to the collective-bargaining principle; (5) the hiring by
Respondent of at least five Manufacturing Company employees, who
had been shop stewards or held other union offices in the past; and
(6) the hiring of at least three supervisors who had been former shop
stewards or union officers.
We believe that the foregoing factors, when considered in their
proper perspective, counterbalance and override the considerations
relied upon by the Trial Examiner. The failure of the employees to
withdraw their checkoff authorizations, while indicative of continued
adherence to the Union, cannot be regarded as decisive under circum-
stances where employees have openly voiced continual dissatisfaction
with the Union for a long period of time and where such dissatis-
faction was intensified during the 3-month period prior to Respond-
ent's assumption of the operation of the plant.' Their failure to
withdraw their checkoff authorizations, under these circumstances,
could be attributed to lack of employee knowledge or procrastination.
On the other hand, the lack of success attending the Union's efforts
to secure new cards without hindrance of Respondent, clearly is iden-
tified with employee opposition to the Union's representative status.
The continuity of operations and the long period of collective bar-
gaining with the Mitchell Manufacturing Company establish the
basis for the presumption of continued union majority status. But
this is a rebuttable presumption which, in our opinion, has been suc-
cessfully overcome by the six mentioned factors establishing the
basis for a belief that the Respondent acted in good faith in question-
ing the Union's majority status. The salient factual picture pre-
sented in this case has many similarities with those in Diamond Na-
tional Corporation? There, as here, the evidence plainly established
no hostile attitude toward the Union or the collective-bargaining
principle, and that the refusal to accord immediate recognition to
the Union was not designed for purposes of delay in order to gain
time to undermine the Union.3 Respondents in Diamond promised
to abide by the results of an election, just as the Respondents in the
instant case. A willingness to abide by the orderly processes of the
Board under such circumstances is entitled to considerable weight
in evaluating a respondent's honest belief and good faith.
In the light of all the foregoing circumstances, we conclude and
find that the Respondent was motivated by a good-faith doubt of the
Union's majority status. Accordingly, we further find that, by re-
fusing to accord recognition to the Union, Respondent did not violate
Section 8(a) (5) and (1) of the Act.
[The Board dismissed the complaint.]
1 The Randall Company, Division of Textron , Inc., 133 NLRB 289
a 133 NLRB 268.
s The Randall Company, Division of Textron, Inc, supra.
MITCHELL STANDARD CORPORATION 501
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues in this case are whether Mitchell Standard Corporation, herein called
Respondent and Manufacturing Company, (1) unlawfully interrogated employees
and applicants for employment about their affiliation with and sentiments concerning
United Furniture Workers of America, AFL-CIO, and its Local 270, herein called
the Union, in violation of Section 8(a) (1) of the National Labor Relations Act, as
amended, 61 Stat. 136, etc., herein called the Act, and (2) refused to bargain col-
lectively with the Union as the proper bargaining representative of its employees in
an appropriate unit, in violation of Section 8(a) (5) of the Act. The issues arise
on a complaint issued June 8, 1962, by the General Counsel of the National Labor
Relations Board,' and Respondent's answer which admitted jurisdiction but denied
the commission of any unfair labor practices
A hearing was held on the issues before Trial Examiner Eugene F. Frey at Fort
Smith, Arkansas, on July 24, 25, and 26, 1962, in which all parties were represented
and participated fully through counsel. Decision was reserved on motions of Re-
spondent to dismiss the complaint on the merits; the motions are disposed of by the
findings of fact and conclusions of law made in this report. All parties waived oral
argument, but written briefs were filed by General Counsel and the Union.
Upon the entire record ,in the case, and from my observation of the witnesses on
the stand, I make the following.
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is an Arkansas corporation with its principal office and place of
business in Fort Smith, Arkansas, where it is engaged in the manufacture of furniture
accessories. In the course of its business Respondent annually makes, sells, and dis-
tributes products valued in excess of $175,000, of which products valued in excess of
$100,000 are shipped from its Fort Smith plant directly to points outside the State of
Arkansas. I find, and Respondent admits, that Respondent is, and at all times
material herein has been, engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES 2
A. Background events
For many years prior to September 30, 1961,3 Mitchell Manufacturing Company,
an Arkansas corporation, had been making and selling furniture accessories at the
Fort Smith plant now occupied by Respondent. For about 17 years prior to 1961,
the Manufacturing Company had had successive collective-bargaining agreements
with the Union, under which it recognized the Union as the exclusive bargaining
representative of its employees in a bargaining unit composed of all production and
maintenance employees, including over-the-road truckdrivers, but excluding office
and clerical employees, inspectors who do no production work, timekeepers, salesmen,
foremen, and other supervisory employees. For 10 years prior to the termination
date, Manufacturing Company had checked off union dues and assessments from
wages of employees in said unit, pursuant to checkoff authorization cards signed by
them.
The Manufacturing Company had been essentially a family corporation: Albert
Mitchell was its president. Charles V. Dixon, his son-in-law, had been employed
by it in various management jobs since 1946, and Maurice Britt, another son-in-law,
was sales manager during 1961. One Jack Baker (no relation to Mitchell) was its
secretary, and for some years Edgar E. Bethell, an Arkansas attorney and present
counsel for Respondent, had been its attorney handling labor and other matters.
1 The complaint Is based on a charge filed by the Union on December 11, 1961.
2 Except where conflicts of testimony are noted and resolved, the facts herein are based
on credited and mutually corroborative testimony of witnesses called by both sides, and
documentary evidence
s The Manufacturing Company ceased operations at the above plant on September 30,
1961, which is hereafter called the "termination date "
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For about a year before the termination date, Albert Mitchell, who was in his
seventies and in poor health, had been trying to sell the business and assets of the
Manufacturing Company. During early 1961, Dixon had tried several times to ar-
range for its purchase, but without success. Early in September, Werner Daniels,
president of U.S. Forgecraft Corporation, a hardware manufacturing concern in
Fort Smith, began negotiations with Mitchell which culminated in an agreement,
signed by him, W. L. Spicer, and Manufacturing Company as of September 15, 1961.4
under which Daniels and Spicer agreed to buy from Manufacturing Company all its
plant equipment, machinery and fixtures, inventory of raw and finished products,
patents, and the right to use the name "Mitchell" in manufacture and sale of products,
but excluding accounts payable and receivable and any contracts or obligations of the
seller relating to manpower. The agreement contemplated that the buyers would
assign their rights in the agreement to a corporation to be formed,5 and Daniels
and Spicer promptly assigned their rights under it to Respondent, which was formed
about the same time, with Daniels, Spicer, and Bethell as incorporators, Bethell
handling the legal details of incorporation At the outset Daniels became chairman
of the board of directors of Respondent; Charles V. Dixon, its president and general
manager; Spicer, vice president; and Bothell, secretary-treasurer.6
Before Respondent began operations on October 2, 1961, the plant and plant site
was acquired from Manufacturing Company by Standard Investment Corporation
(created by Daniels, Spicer, and Bethell) under a contract of purchase, whereby the
buyer is required to make periodic payments to the seller over a 20-year period to pay
out the contract price, in addition to assuming an existing mortgage. During the con-
tract period, Respondent is leasing the premises from the realty corporation at an
agreed rental, but at the end of the period, Respondent will take title to the realty in
fee.
Manufacturing Company laid off personnel and shut down its operations between
September 22 and 30, 1961. On September 20, Manufacturing Company sent all
production employees a letter advising them of the sale, cessation of manufacturing
operations by it on September 22, and the termination of all employees by the 30th,
when the buyer would take over the plant. The letter also stated:
The purchaser will no doubt be interested in the services of many of our em-
ployees. We have arranged it so that application forms for employment will be
made available here in the plant for those who desire to apply for work with the
new company. If you are interested, your foreman will be glad to obtain an
application blank for you.7
In the period between September 22 and 30, many employees filled out application
blanks and were interviewed at the plant by Daniels, Spicer, and Edward Davis (an
engineer employee of U.S. Forgecraft Corporation). When Respondent began to
operate the plant on October 2, it had hired about 55 to 60 of the employees of
Manufacturing Company.8
Manufacturing Company had made principally coil springs for various types of
furniture and automobile seat cushion, and Respondent continued to make the same
items, using substantially the same machinery and methods and with employees of
the former company working at the same jobs as before . Respondent also hired and
continued in their same positions the entire production supervisory staff of the Manu-
facturing Company, consisting of Production Manager Verlin Smith , two department
superintendents , and three foremen-9
' Spicer was an employee of U.S. Forgecraft Corporation.
5 Attorney Bethell drafted the agreement as attorney for Manufacturing Company, but
took no part in the negotiations leading to it, because he had been attorney for both
Manufacturing Company and U S Forgecraft Corporation in labor matters.
6 Dixon bought into the venture at Daniels ' invitation , as Daniels wanted someone fully
familiar with the old business and the plant to run the new operation for Respondent.
7 This arrangement was made at the request of Mitchell, to afford Manufacturing Com-
pany employees an opportunity for continued employment.
8 Manufacturing Company had 94 employees in the bargaining unit on its payroll for
September 1961 . Respondent hired enough of them to handle business at hand on October 2,
which was only enough to operate the plant at about 30 percent of capacity. However, the
payroll increased to about 86 at the end of October.
8 Grant Faubus continued as superintendent of the furniture division ; Magellan O'Neal,
superintendent of the automotive division ; Fred Martin, foreman of the furniture assem-
bly department ; Mitchell Henson, foreman of the press department ; and Eugene 0 Staley,
foreman of the shipping department.
MITCHELL STANDARD CORPORATION 503
B. The alleged refusal to bargain
1. The appropriate unit
As Respondent continued the same operations at the plant, with the same depart-
ments of operations, same type of jobs in each, and the same employees in them
(though reduced in number for economic reasons), as obtained under the Manu-
facturing Company operation, it follows that the appropriate bargaining unit recog-
nized by the Manufacturing Company in its dealings with the Union is still the
appropriate bargaining unit under Respondent's operations. N.L.R.B. v. F. G.
McFarland and S. R. Hullinger, d/b/a McFarland & Hullinger, 306 F. 2d 219
(C.A. 10), enfg. 131 NLRB 745. I find that all production and maintenance em-
ployees at Respondent's plant, including over-the-road truckdrivers, but excluding
office clerical and professional employees, inspectors who do no production work,
guards, timekeepers, salesmen, foremen, and other supervisory employees as defined
in the Act, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
2. Majority status of the Union
The record shows that before the terminations of September 22 to 30, 1961, the
Union was recognized by the Manufacturing Company as the exclusive bargaining rep-
resentative of all employees in the above unit, and that during September 1961, 94
employees, or about 98 percent of those in the unit, were members of the Union
whose union dues and assessments were deducted from their pay by Manufacturing
Company and paid to the Union pursuant to checkoff authorization cards previously
signed by them. Of the 86 employees on Respondent's October payroll 74 were
former employees of Manufacturing Company who, as members of the Union, had
signed checkoff authorizations.10 There is no proof that any of the 74 had resigned
from the Union, or revoked their checkoff authorizations, as of September 30, 1961,
or at any time after Respondent commenced operations, hence it appears that the
Union during October 1961, represented a majority of employees of Respondent in
the appropriate unit aforesaid. I find that at all times material herein, the Union
has been, and now is, the exclusive representative of all employees in said unit for
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
3. The demand for bargaining, and Respondent's reply
About September 8, 1961, the Manufacturing Company advised the Union that it
was selling certain assets to another concern, that the employees would be terminated
between September 22 and 30, and that the buyer would take over the plant on the
latter date but was not assuming the obligations of the current collective-bargaining
agreement between the Union and the Manufacturing Company. Shortly after, the
Union learned that Daniels was the buyer, and on or about September 11, several
union representatives had a conference with Daniels about the possibility of the
new owner assuming the obligations of the current contract, or negotiating a new one.
Daniels said he had no objection to recognition of Local 270 as the bargaining agent,
provided the Union would take into consideration the starting problems of the new
company as affected by wages, hours, incentive pay, and other working conditions of its
employees. Daniels told Dixon about this conference. After Respondent was formed
and up to September 30, the union representatives had several other talks on this
subject with Daniels and Bethell. At one such conference on or about September 20,
the union agents repeated their request for immediate recognition of Local 270, say-
ing they recognized the problems faced by the new company, and that they would favor
negotiation of a new 2-year contract if Respondent would recognize Local 270 as
soon as it started operations. Daniels said this proposition was attractive to him, as
he wanted to get the plant operating quickly, and that he had recognized another
union when he took over his own hardware plant, but that he would have to talk to
all his associates before giving an answer.ll In urging immediate recognition of
the Union, Union Agent James J. Fitzsimons told Daniels that if Respondent did
not grant it, he would hand out union cards to the workers and the Union would
10 Of the 74, 52 were on the September payroll and dues-assessment checkoff list of
Manufacturing Company, and 22 were union members in a layoff status in August or
September or both, but had signed checkoff authorization cards.
11 Dixon, the intended general manager of the new operation, was not present, nor was
Spicer.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organize the plant anyhow. Daniels said that if he did that, and it was handled legally
with an election, and the Union won, Respondent would of course recognize the
Union and negotiate a contract.
Daniels discussed the union proposal with Dixon, who urged that Respondent should
not recognize the Union, because he felt strongly, on the basis of his own discussions
with employees and supervisors of the Manufacturing Company, that the employees no
longer wanted Local 270 to represent them, because they felt it had not represented
them properly in handling their problems. Dixon maintained this stand in later talks
in September with Daniels and Spicer, arguing that if Respondent recognized Local
270 against the wishes of the employees, they would feel that Respondent had "let
them down." Dixon based his opinions upon discussions with supervisors and remarks
of many of the employees made to him over the last year or more. Daniels remained
unconvinced, urging that Respondent should recognize the Union and sign a contract
promptly, in order to get operations off to a good start.
At another meeting of Union Representative Fitzsimons and its attorney, Martin
Raphael, with Daniels and Bethell late in September, the Union repeated its demand
for immediate recognition. Bethell asked whether the Union could charter a new
local to represent employees of Respondent, or arrange to have Local 281 (also
located in Fort Smith) represent them, stating that management of the Manufacturing
Company had had great difficulty in bargaining and getting along with the business
agent of Local 270, and did not trust him.12 Raphael said he would discuss this with
the International Union in New York. Daniels said that he did not care what local
represented the employees, that he only wanted the new company to get off to a good
start.
At a meeting of officers of Respondent on or about October 10 or 11, Daniels and
Dixon still disagreed about immediate recognition. In order to persuade Daniels
to accept his view, Dixon called in Superintendent Faubus, Production Manager
Smith, and Foreman O'Neal to get their opinions. After advising them that Re-
spondent could probably get a 2-year contract from Local 270, so that the plant
would be "through with it for 2 years," Dixon asked for their views about signing
a contract. The three opposed it, saying that, on the basis of remarks of employees
indicating dissatisfaction with the Union, its operation and representation of them,
they felt sure the employees did not want Local 270 to represent them, and that they
felt signing of a contract with that organization would be "unjust" to the employees,
and that the employees should have a shop election to decide what union they
wanted. Dixon concurred, saying the employees should be allowed to get the
union they wanted, whether it be Local 270 or another. Daniels finally accepted
Dixon's view, and the officers agreed that no recognition would be extended to
Local 270.
The officers stated this decision to Bethell, and on October 15 when Fitzsimons
reported to Bethell that there was no possibility of the International Union chartering
a new local for Respondent's employees, or having them represented by Local 281,
Bethell told the union agents that, while Daniels still favored recognition of Local
270 and negotiation of a 2-year contract, Respondent would not recognize Local
270 because Dixon felt strongly that the majority of the employees did not want
that organization to represent them, that Respondent took the position that the Union
did not represent a majority, and that it felt free to proceed to hire employees as it
wished. This was the last meeting between the parties.
I find from the above facts that, beginning on September 20, 1961, the Union made
repeated requests that Respondent bargain with it as the representative of employees
in the unit aforesaid, and that Respondent on and after October 15, 1961, failed and
refused to do so
Respondent's sole defense is that, from the outset of its existence , it had a bona fide
doubt as to the Union's majority status, but that it was willing at all times to recognize
the Union as the bargaining agent if it won an election or proved majority status by a
showing of signed authorization cards. In support of this defense, the record clearly
shows, and I find, that: The employees of Manufacturing Company had in the 2 or 3
years prior to the termination date become increasingly dissatisfied with the Union
and various aspects of its operations. Their dissatisfaction became open and vocal
when the Union, after a vote at a members' meeting in 1959 or 1960, began to assess
Manufacturing Company employees along with those of six other local plants with
special strike assessments, which were checked off from their pay with the usual
121 credit Fitzsimons' testimony on this point, and do not credit conflicting testimony
of Daniels, because of credible and uncontradicted testimony of Fitzsimons that Iiethell
had first put this question to Fitzsimons and President Pizer of the International Union at
a preliminary meeting in August, and Pizer had said chartering a new local was not possible
MITCHELL STANDARD CORPORATION 605
union dues . Their complaints about this became sharper and more frequent when
the assessments were increased in the spring of 1961 at the time of another strike.
In the last 3 months of Manufacturing Company's operations , many employees be-
came quite incensed about the monthly assessments and the financial hardship they
imposed, and about the Union' s alleged failure to represent them effectively in
handling grievances. Employees often aired their dissatisfaction in open discussions
in front of and with supervisors ; many of them at times openly threatened to with-
draw from the Union, and some asked their shop stewards as well as supervisors who
had been former shop stewards , and even Dixon, about the procedure for withdrawing.
The supervisors reported this dissatisfaction to Dixon as early as January 1961. I am
satisfied that on the basis of these complaints , their scope and frequency , management
of Manufacturing Company, and the officers of Respondent , had every reason to
believe that the employees were dissatisfied with their representation by Local 270,
and that some employees even wanted representation by another local or even the
Steelworkers Union, because they felt that some other organization , like the Steel-
workers, could better understand and handle problems of a metalworking shop , in con-
trast with the other woodworking plants in the area whose employees were rep-
resented by the Union.
However, the record also shows that, although most disgruntled employees knew,
and some were told by supervisors, the exact procedure for withdrawing from the
Union, none of them ever went so far as to carry out that procedure, although the
authorization cards in evidence show that one period for exercise of that right occurred
during November 1961, while other withdrawal periods for about 42 individual em-
ployees, based on the anniversary dates of their cards, fell within July, August, and
September , 1961, 13 when the volume and intensity of employee complaints against the
Union had increased . In light of the long-recognized majority status of the Union in
the plant, the presumption of continuance of that status during Respondent 's operation
of the plant with substantially all union members cannot lightly be disregarded, but
can be overcome only by clear proof of overt action by the employees to cancel or
change their union affiliation . Absent such proof , I must conclude that Respondent
had no reasonable ground for an honest belief that the Union had in fact lost its
majority status in the bargaining unit , either before, at, or after the termination date.14
To the contrary, I am convinced that Dixon and the supervisory staff, who were so
close to the workers, could only have known that during the transition period the
employees , though generally disgruntled and with some indicating a desire or even
intent to withdraw from the Union, did nothing to suit their action to their words
but remained union members. The Board has held in similar circumstances that
dissatisfaction of employees with their union , without more , is not sufficient to rebut
the presumption of continued majority status or to support a claim of good -faith doubt
of such status. Toolcraft Corporation. 92 NLRB 655.
The Board has consistently held, with approval of the courts, that where there is
a substantial continuity in the "employing industry" during its transfer from a former
employer to a new operator , the successor must assume the former employer's
obligation to bargain with a labor organization representing the employees, and that
factors which may denote sufficient continuity for that purpose include substantial
continuation of the same business operations, in the same plant , with the same work
force doing the same jobs under the same working conditions and the same super-
visory personnel, using the same machinery , equipment , and methods , and manu-
facturing the same products under the same name. The Northwest Glove Co., Inc,
et al., doing business as Northwest Glove Company of Winona, 74 NLRB 1697,
1699-1701; Gustave S. Krantz, d/b/a Krantz Wile & Mfg. Co., et al., 97 NLRB 971,
enfd. sub nom. N.L.R.B. v. Albert Armato and Wire & Sheet Metal Specialty Co.,
199 F 2d 800, 803 (C.A. 7); Auto Ventshade, Inc., 123 NLRB 4511, 456, 457, enfd.
276 F. 2d 303, 306, 307 (C.A. 5). If these factors exist, the successor must bargain
"The checkoff authorization cards permitted the signer to revoke the authorization by
giving written notice to both employer and the Union within a 10 -day period , beginning
not more than 20 days before, or not less than 10 days before, the anniversary date of the
signing of the card, or the termination of any existing bargaining contract The current
contract between 'Manufacturing Company and the Union expired on November 30, 1901
14 The lack of affirmative action by employees at this time should have been all the more
significant to management of both concerns because it contrasts sharply with a real attempt
by Manufacturing Company employees to change their bargaining agent in or about 1953,
when they circulated a petition , with written notice to the employer , seeking to change
their union affiliation, which was frustrated by the fact that they were blanketed in at that
time with employees of six other local plants in multiemployer bargaining between seven
employers and the Union.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union upon request, even though the sale and transfer of assets specifically
excluded any assumption of the obligations of an existing union contract. Colony
Materials, Inc., 130 NLRB 105, 109, 112. Under these authorities, the finding
of continuity of the "employing industry" is not affected by the circumstances (shown
in this record) that Respondent began operations with a work force substantially
less than that of its predecessor , that the new management had plans for expansion
of the business into new lines of products, and that top management of Respondent
no longer includes any officials active in the Manufacturing Company.i5
I recognize that some circumstances militate against a conclusion requiring
Respondent to recognize the Union, such as: (1) the lack of recent certification of
the Union as bargaining agent; ( 2) the union agent's boast to Daniels in September
that they could readily get new union cards from the employees if Respondent did
not bargain with the Union, and his reply that Respondent would promptly recog-
nize it if it won an election; (3) the Union's attempt in October to get new union
cards signed by Respondent's employees but without much success,i5 although without
hindrance from Respondent; (4) the long period of apparently amicable bargaining
between Manufacturing Company and the Union, and Daniels' readiness to recognize
and bargain with the Union, as he had done with a union in his other business,
thus indicating no opposition by either predecessor or successor employer to the
collective-bargaining principle; and (5) the fact that Respondent hired at least five
Manufacturing Company employees who had been shop stewards or held other
union office in the past, but were also employees of long service , seniority and
experience, and also hired at least three Manufacturing Company supervisors
(Faubus, Verlin Smith, and Magellan O'Neal) who had been former shop stewards
or union officers While these factors would be persuasive support for Respondent's
defense, if standing alone, they lose force in comparison with the more weighty
circumstances of continuity of operations, plant, work force, jobs, working con-
ditions, supervision , and products shown above.11 Mere lack of a recent certification
cannot overthrow the presumption of continued union affiliation and majority
status which rests on 17 years of recognition of and collective bargaining with
the Union, especially where that presumption is supported by the cogent proof in
the form of dues checkoff authorizations which have been in effect and honored
by the former employer for 10 years, and never since revoked or replaced by new
authorizations.
From all of the above facts and circumstances, I conclude that Respondent's
defense is without merit, and I find and conclude that Respondent has failed and
refused since October 15, 1962, to bargain collectively with the Union as the exclu-
sive bargaining agent of its employees in an appropriate bargaining unit, in violation
of Section 8(a) (5) and (1) of the Act.
C. Other alleged unfair labor practices
The complaint alleges that Respondent violated Section 8 ( a) (1) of the Act by
Faubus' interrogation of employees during October 1961. Credible testimony of
Faubus and employee Lloyd Summerhill shows that during attempts of Summerhill
and other employees in that month to get union authorization cards signed, Faubus
asked Summerhill how many cards he and Steward Pennington got signed. Summer-
hill replied. "Quite a few " Faubus asked if "they" wanted "that union," and
Summerhill said, yes, he felt it would be better for Respondent and the workers
is Though Daniels and Dixon at the outset had ambitious plans for renovation of the
plant and expansion into new product lines which might eventiiallv have radically changed
the form and character of the business, Daniels withdrew from the venture about Novem-
ber 10 1961, and Dixon died in May 1962, leaving Spicer to carry on the business (aside
from Bethell who at the time of the hearing was still secretary-treasurer as well as com-
pany attorney) The loss of Daniels and Dixon removed the main incentive for expan-
sion or change of the operation : their ambitious plans have been shelved for the time being,
and Spicer has since operated the plant along the same line as formerly Since Respond-
ent began operation, Albert Mitchell has been permitted to use a desk in the plant to
facilitate winding up accounts receivable and payable of Manufacturing Company (which
it retained under the sale agreement), but he has taken no part in the new operation of
the plant, nor given advice or orders to supervisors or employees of Respondent
1e The record shows that , over a period of 2 or 3 weeks , the efforts of 3 or more union
members netted them only about 20 signed cards
17 Cf Diamond National Corporation , 133 NLRB 268 , where the latter circumstances of
continuity were absent.
MITCHELL STANDARD CORPORATION 507
both. Summerhill also testified that Faubus appeared "a bit angry" during this talk,
and that while he and Faubus had been rather close socially and in church work
in the past, they have not been as close since the changeover to Respondent. Faubus
admitted he had asked other employees about their circulation of cards, testifying
he did so because he was interested in their actions, as he felt they were "on the
right track" in taking the action they wanted about union affiliation, and that he
wanted them to do as they desired. Although I have found that Respondent tech-
nically violated Section 8(a)(5) of the Act, there is no substantial proof of union
animus by Respondent, its officers or supervisors, nor that management tried to
hinder the card circulation in any way or took any discriminatory action against
workers who distributed them. Faubus had long been a union member, and withdrew
from it only when made a supervisor; there is no proof that he thereafter developed
or showed an antiunion attitude. In light of these facts, his close relationship with
the workers, and their long continued practice of free discussion of union affairs in
his presence and with him, I conclude that his limited queries of a few employees
about the card circulation and their union views does not constitute substantial proof
of coercion such as to warrant remedial action under the Act. I therefore grant
Respondent's motion to dismiss paragraph 8 of the complaint, and will recommend
that the Board issue an order accordingly.
The complaint also charges that Respondent violated the Act by Daniels' alleged
interrogation of applicants for employment on October 15, 1961, about their union
sentiments. Only one employee, Leonard Brewer, testified that he was interviewed
at the plant about his application for work in September, at the same time other
workers were interviewed, by a man who asked about his past experience and
wages, and what he thought of the Union, that Brewer replied he thought it was best
for the workers, that the man said there would be no union at the plant if Brewer
was hired, and explained what his wages would be. Brewer could only identify his
interviewer by reference to the rejection card dated October 2, 1961, and signed by
Daniels, which he received after his interview. His testimony on the identification
was vacillating, self-contradictory, and not impressive. Daniels flatly denied that he
interviewed Brewer, or that he asked any applicant what he thought of the Union,
and stated positively that he questioned applicants only about their former work
experience at the plant, and that he specifically ordered the other interviewers to
confine their questioning to that subject, and not to ask anything about worker's
union affiliation or sentiments. Daniels also testified that he has dealt with organized
labor since 1938 and is well acquainted with the limitations of the Act upon em-
ployers. I have found that he had recognized and dealt with another union in his
hardware company, and that he personally favored immediate recognition of the
Union by Respondent. Under these circumstances, I credit Daniels' testimony
as against that of Brewer, and conclude that General Counsel has failed to sustain
the ultimate burden of proof of this allegation.18 I grant Respondent's motion to
dismiss paragraph 9 of the complaint, and shall recommend that the Board issue an
order accordingly.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its business operations described in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has unlawfully failed and refused to bargain with
the Union as the statutory representative of its employees in an appropriate unit, I
shall recommend that Respondent be ordered to bargain, upon request, with the
Union and, if an understanding is reached, to embody such understanding in a
signed agreement. Since the violation of the Act is limited to a technical refusal
to bargain. I shall only recommend a cease-and-desist order limited to a prohibition
of like or related conduct.
11 Summerhill testified without contradiction that during his interview, he asked Daniels
"about vacation and union," and Daniels said there would be no union This was not
coercive, because there was no interrogation by Daniels, and his reply about the Union
appears to be no more than a forerunner of Respondent's final decislon not to recognize
the Union, as found above, but in the light of other circumstances found herein I do not
consider It substantial evidence of an independent act of coercion
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
I. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All production and maintenance at Respondent's Fort Smith, Arkansas, plant,
including over-the-road truckdrivers, but excluding office clerical and professional
employees , inspectors who do no production work, guards , timekeepers , salesmen,
foremen, and other supervisory employees as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining.
3. In or about September 1961, and at all times since , the Union has been and
now is the exclusive representative of all employees in said unit for purposes of
collective bargaining.
4. By refusing to bargain collectively with the Union as such bargaining repre-
sentative , and thereby interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a)(5)
and (1) and 2( 6) and (7) of the Act.
5. Respondent has not engaged in any illegal interrogation of employees or ap-
plicants for employment as alleged in paragraphs numbered 8 and 9 of the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby
recommend that the Respondent Mitchell Standard Corporation of Fort Smith,
Arkansas, its officers , agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Furniture Workers of America,
AFL-CIO, and its Local 270, as the exclusive representative of employees of Re-
spondent in an appropriate unit consisting of all production and maintenance em-
ployees in its Fort Smith, Arkansas, plant, including over-the-road truckdrivers, but
excluding office clerical and professional employees, inspectors who do no produc-
tion work, guards, timekeepers, salesmen , foremen, and other supervisory employees
as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with United Furniture Workers of America,
AFL-CIO and its Local 270, as the exclusive representative of all employees in the
appropriate unit aforesaid , with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post in its plant at Fort Smith, Arkansas, copies of the attached notice marked
"Appendix." 19 Copies of such notice, to be furnished by the Regional Director for
the Twenty-sixth Region, shall, after having been duly signed by Respondent's repre-
sentative, be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for the Twenty-sixth Region in writing, within
20 days from receipt of this Intermediate Report, what steps Respondent has taken
to comply herewith.20
I also recommend that the allegations of paragraphs numbered 8 and 9 of the
complaint be dismissed.
10 In the event of Board adoption of this Recommended Order, the words "A Decision
and Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
In the notice. In the further event of enforcement of the Board's Order by a decree of a
United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a
Decision and Order "
20 In the event of Board adoption of this Recommended Order this provision will be
modified to read : "Notify said Regional Director , in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
THE MEREDITH PUBLISHING COMPANY, ETC . 509
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with United Furniture Workers
of America, AFL-CIO, and its Local 270 as the exclusive representative of all
our employees in the appropriate bargaining unit described below, and, if an
understanding is reached , embody such understanding in a signed agreement.
The appropriate bargaining unit is:
All production and maintenance employees at our Fort Smith, Arkansas,
plant, including over-the-road truckdrivers, but excluding office clerical
and professional employees, inspectors who do no production work, guards,
timekeepers , salesmen , foremen , and other supervisory employees as de-
fined in the Act.
WE WILL NOT refuse to bargain collectively with the above-named Union as
the representative of our employees in the above-stated unit , or in any like or
related manner interfere with , restrain , or coerce our employees in the exercise
of rights 'guaranteed to them by Section 7 of the Act.
All our employees are free to become or remain , or to refrain from becoming or
remaining , ,members of the above -named Union or any other labor organization.
MITCHELL STANDARD CORPORATION,
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.
Employees may communicate with the Board 's Regional Office, Seventh Floor,
Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jack-
son 7-5451 , if they have any question concerning this notice or compliance with its
provisions.
The Meredith Publishing Company and The Meredith Print-
ing Company 1 and Local 37, Amalgamated Lithographers of
America, Petitioner . Case No. 18-RC-5034. January 7, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National La-
bor Relations Act, a hearing was held before Max Rotenberg, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
Upon the entire record 2 in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
1 The name of the Employer appears as amended at the hearing.
2 The Employer 's request for oral argument is denied as, in our opinion, the record and
the briefs adequately present the issues and positions of the parties.
140 NLRB No. 47.