Outboard Marine Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 535 (N.L.R.B. 1963)

LAWN-BOY DIVISION OUTBOARD MARINE CORP. 535
APPENDIX B
PERSONS WHO RECEIVED LETTERS FROM RESPONDENT DATED AFTER JUNE 8, 1961
(Date letter was received is indicated after each name)
Olen Ballard-----------June 28, 1961 Essie Rhodes ------ ----June 27, 1961
Alex Banning ---------- July 17, 1961 Mary Scholze---------- June 14, 1961
Audra Dustman 1-------June 27, 1961 Charles Spangler--------June 27, 1961
Martin Hatley---------- July 21, 1961 A. L. Spence----------Nov. 16, 1961
Jimmy Hix 2........... July 17 , 1961 Buster Whisenhunt------Sept. 21, 1961
Aline Petree----------- June 14, 1961
'Returned to work on December 26, 1961, as a new employee
2 Name spelled as amended at the hearing.
Lawn -Boy Division Outboard Marine Corp. and International
Union , United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, and Local Union
683. Case No. 17-CA-2006. June 08, 1963
DECISION AND ORDER
On April 1, 1963, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that,
except for an isolated violation of Section 8 (a) (1) too minor in char-
acter to warrant issuance of a remedial order, the Respondent had not
engaged in unfair labor practices as alleged in the complaint. Ac-
cordingly, he recommended that the complaint be dismissed in its en-
tirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel, the Respondent, and the Charging Party filed
exceptions to the Intermediate Report and supporting 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 [Chairman McCulloch and Members Leedom 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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board dismissed the complaint.]
1 The Trial Examiner found, and we agree , that the Respondent did not refuse to fur-
nish the Union with certain information which the Union requested during bargaining
negotiations . In so finding, the Trial Examiner relied, in part, on testimony by W C James,
Respondent ' s director of industrial relations , to the effect that the testimony of the
Union 's witnesses at the hearing "was his first knowledge that they questioned the correct-
ness of any of the information which he supplied ." As this testimony was stricken from
the record , we do not rely on it in adopting this finding , which is supported by other
evidence.
143 NLRB No 57.
536 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner
George A. Downing at Lamar, Missouri, on February 5, 6, and 7, 1962, pursuant
to due notice. The complaint, issued on December 6, 1962, by the General Counsel
of the National Labor Relations Board, upon a charge and an amended charge dated
July 5 and December 4, 1962, respectively, alleged in substance (as amended on
January 17, 1963) that Respondent engaged in unfair labor practices proscribed by
Section 8(a)(1) and (5) of the Act by refusing to bargain in certain specified re-
spects with the Charging Unions as the duly certified bargaining representative of its
employees in an appropriate unit. Respondent answered, denying the unfair labor
practices as alleged.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, Lawn-Boy Division Outboard Marine Corp., is engaged at its Lamar,
Missouri, plant in the manufacture, sale, and distribution of lawnmowers and other
products. It ships annually from its Lamar plant to extrastate destinations products,
goods, and materials valued in excess of $50,000. Respondent is thus engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, and Local Union 683, herein jointly called
the Union, are labor organizations within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LA13OR PRACTICES
A. Introduction and issues
Respondent presently employs some 300 employees in a production and mainte-
nance unit in which the Unions jointly were certified by the Board on November 16,
1960 (amended on March 6, 1961). Following negotiations, a collective-bargaining
agreement was reached dated May 8, 1961, to continue in effect until December 31,
1962, with a provision for reopening, after May 8, 1962, on 60 days' written notice,
on base hourly wage rates.
Following reopening notices given first by Respondent and later by the Union,
negotiation meetings were held on March 20, May 1, and June 7 and 14, 1962,' and
were broken off by the Union on the latter date. On October 26 Respondent gave
notice of its intention to terminate the contract and filed a representation petition with
the Board, and there followed in November and December an exchange of corre-
spondence during which the Union made requests that Respondent furnish certain
information and that it negotiate for a new agreement. Respondent refused.
The complaint was directed to Respondent's conduct during the wage reopener
negotiations, and the amendment to its subsequent refusals to furnish information
and to negotiate in November and December. In brief, the complaint charged that
Respondent refused to bargain by notifying the employees before it did the Union
that it had reopened the contract, by disparaging the Union through the publication
to the employees of certain notices on May 4, 18, and 25, by knowingly permitting
circulation of a petition among the employees despite a rule prohibiting the discus-
sion of union affairs during work hours, by unilaterally establishing new job classifi-
cations and changing the wage rates of the employees, by refusing to furnish the
Union with certain wage and other information, and by informing the employees that
layoffs would become necessary if wages were raised. The amendment covered the
matters previously stated.
As to the wage reopener negotiations, Respondent denied all the conduct with
which it was charged, with the issues turning in part on certain conflicting testimony.
As to the amendment, the decisive issue is whether Respondent was entitled to assert
an alleged good-faith doubt of the Union's majority status.
'All events herein occurred in 1962 unless otherwise specified
LAWN-BOY DIVISION OUTBOARD MARINE CORP. 537
Before turning to the merits of the case, I reject preliminarily certain technical
defenses which relate to the fact that the original charge asserted a refusal to bargain
only as to Local 683, whereas the amended charge as filed on December 4 asserted a
refusal as to both the International and the local. Claiming that the amended charge
injected a new cause of action, Respondent pleaded that most of the events oc-
curred outside the Section 10(b) limitation period. Respondent's contentions are
plainly without merit. The evidence established that the local and the International
were certified jointly as the bargaining representative of the employees; the contract
was signed by representatives of both and contained Respondent's recognition of
both as the representative of its employees, and all negotiations were conducted
jointly by both with Respondent.
B. The negotiations and related conduct
Respondent's chief officials at Lamar were Robert Floersch, division manager,
Richard Chancellor, plant superintendent, Cecil Smith, master mechanic, and W. C.
James, director of industrial relations. Its negotiators consisted of James, Dorsey
Johnston, personnel and safety manager, Chancellor, and sometimes others. James
was in direct charge of all matters concerning the negotiations and was the dominant
spokesman for Respondent.
The Union's negotiators consisted of an International Representative (John W.
Vinson on March 20 and May 1, and David Hutchison on June 7 and 14) and of a
committee from the local, consisting in part of Oswald Bishop, president, and Reed
Adams, committeeman. The chief spokesmen for the Union were the International
representatives. They and James and Chancellor were also the principal witnesses
concerning the negotiations, though Bishop and Adams also testified for the General
Counsel.
Though most of the conduct which the General Counsel relies upon concerned
positions which Respondent took during the course of the negotiations, there were
other items of conduct away from the bargaining table which are also claimed to
constitute unfair labor practices. Those were the alleged acts of notifying the em-
ployees before it did the Union of Respondent's intention to reopen the contract, of
permitting the circulation of the petition, and of informing employees that layoffs
would become necessary if wages were raised. Those matters are covered in sections
1, 2, and 3, below, and the negotiations in sections 4 and 5.
1. The notice of wage reopening
Respondent's letter of reopening was written and mailed to Vinson at the latter's
address in Springfield, Missouri, on March 7, with a copy simultaneously to President
Bishop, of the local, at his Lamar, R F.D., address Vinson's letter was received at
his office on the morning of March 8, and was read to him over the telephone that
morning. Bishop's was receipted for by his wife on the R.F.D. route around
9.30 a.m.
Witnesses for the General Counsel testified that Respondent posted, on the after-
noon of March 7, a notice to the employees concerning its wage reopener, along with
a copy of its letter to Vinson and of its wage proposal. However, Dorsey, Johnston
and James gave mutually corroborative testimony that Johnston posted the notice
at James' direction around 1:30 p in. on the afternoon of March 8. I credit that
mutually corroborative testimony, which received further corroboration from Bishop's
testimony that James called him in and talked with him about the notice after he saw
it posted on the bulletin board and afer his wife had received his copy. The Union's
representatives at no time complained during the course of the negotiations that Re-
spondent had notified the employees before it had the Union.
2. The circulation of the petition
The General Counsel's position that Respondent knowingly permitted the circula-
tion during working hours of a petition expressing a desire to accept Respondent's
proposed wage increase rested largely on the contention that John Singer, who held
the job of tool crib coordinator and who was active in soliciting and procuring sig-
natures on the petition, was a supervisor. However, the evidence established to the
contrary that Singer was an hourly paid employee within the bargaining unit and
that he was without supervisory power or authority
The evidence is undisputed that rumors concerning the petition reached manage-
ment. Plant Superintendent Chancellor heard them and renorted to James, who had
already heard the rumors and who had already instructed some of the supervisors
not to permit circulation of the petition on working time. Indeed, James testified
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without denial that Bishop was the one who reported to him that the petition was
being circulated and that it was for the "opposition," but that Bishop refused to
identify those who were responsible. Though James informed Bishop he proposed
to drop the matter unless Bishop became more specific, he thereafter went through
the plant checking with the supervisors, none of whom had seen anything unusual,
though some of them also reported having heard the rumor. James' instructions
to the supervisors were that though management could not stop employees from
such activity during coffee breaks and rest periods, it certainly did not want it going
on during working hours.
Aside from the foregoing, Donald Veir testified that during the time the petition
was being circulated, his supervisor, Ray Clark, remarked to him, "You must not
need the money or you would sign the petition," and Harold Wynn testified that
while he was in possession of one copy of the petition for the purpose of obtaining
signatures , he inquired of Supervisor William Hardman if the Company knew about
the petition and were in agreement with it. Hardman replied that he would find
out, and he later returned and stated that, "[T]hey knew and they didn't know," and
that "[Y]ou know what I mean." Hardman was not Wynn's supervisor, nor did
Wynn claim to have shown Hardman the petition. Hardman's statement is thus
reconcilable with the other testimony that Respondent's supervisors had heard
rumors about the petition.
3. The alleged threat of layoff
Reed Adams and Earl Williams, both electricians, testified that James and Super-
visor Louis E. Hebenstiet informed them on June 7 and 8, respectively, that if the
electricians insisted on getting more money in the negotiations, the Company would
or might be forced to lay off one (of the five). Hebenstiet admitted that he informed
Williams (who was junior in seniority) that, there was a possibility that if the Union
persisted in trying to secure additional money for the electricians, the Company
might plan a reduction, but added that that was his personal opinion
James testified that his conversation with Adams occurred against the background
of negotiations (in which Adams had participated) for an increase in pay for the
electricians, coupled with a further union demand that the electricians should be
used only on electrical work, rather than helping out on maintenance work as they
had in the past. The Company had consistently met the latter demand with the
suggestion that if electricians were to do only electrical work, then there were too
many of them and that two or three (instead of five) would be sufficient James
testified that his conversation with Adams on June 7 resulted from a report that
Adams had been caught loafing on the job, and that when Adams expressed dissatis-
faction with the progress of the negotiations as concerned the electricians, James
repeated the Company's position in the negotiations as stated above, and suggested
that Adams' loafing was a "bad example" to support Adams' demand for more money
for the electricians
Adams admitted on cross-examination that his conversation with James covered
both the loafing on the job and the matter of electricians doing maintenance work as
well as electrical work. He admitted further that the conversation was adverted to
during the course of the negotiation meeting on June 14, and he affirmed the sub-
stance of a portion of a tape transcription which tended to corroborate James' version
of the conversation.2 I therefore credit James' testimony.
2 Respondent operated a 'tape recorder throughout the negotiations, without objection
from the Union, and it also prepared from the tapes typewritten transcripts of portions
of each meeting. The transcriptions were used extensively in cross-examining the General
Counsel's witnesses, with the ultimate result that in many instances one or more of the
witnesses agreed that the portions which were read correctly reflected either what was
said or the substance of what was said To the extent that denials or qualifications were
made, the tran'scriptions were corroborative of the testimony of Respondent's witnesses.
I therefore now receive in evidence those portions of the transcriptions which were quoted
to the witnesses on cross-examination, and I reject all other portions sf the transcriptions,
as well as all of the tapes.
The tapes, of course, would be valueless without extrinsic evid !nce to identify each
speaker Aside from that, the transcriptions were confined to selected excerpts as chosen
by James, and even those showed frequent omissions where transcription was impossible.
Under all the circumstances, including the fact that witnesses were present who could
and did testify directly concerning the course of the negotiations, I reject Respondent's
offer of the tape's and the transcriptions independently of the testimony which was given
by, or available from, the witnesses themselves.
LAWN-BOY DIVISION OUTBOARD MARINE CORP. 539
4. Wages and job classifications; disparagement and unilateral action
Respondent submitted to the Union along with its wage reopener notice a copy
of its proposal for increasing the base hourly wage rates of all employees. The base
rate of pieceworkers was to be raised 4 cents per hour. Increases to employees on
hourly rated jobs ranged from 5 cents an hour to 20 cents an hour, and a new classifi-
cation of machinist-helper was proposed. The Union submitted on March 29 its
counterproposal calling for a different scale of increases mostly higher than Re-
spondent's, though in some instances lower.
During the negotiations on March 20 and May 1, Respondent made a number of
concessions. It agreed to increase its wage offer for setup men and electricians, it
agreed to a separate classification of janitor, with an increase, and it increased its
offer on salvage men. There was also discussion of the job classifications of janitor,
machinist-helper, product repair, salvage men, and salvage and material helper. As
the May 1 meeting began, there was agreement on some 11 out of 19 classifications,
and at the end of the meeting agreement had apparently been reached both on the
wage increases and the classifications. Indeed, Vinson and James "recapped," item
by item, what had been agreed to, with ultimate concluding remarks that there was
agreement.
Though Bishop, Adams, and Vinson insisted at various points in their testimony
that no agreement was reached, that testimony cannot be credited over James' and
Chancellor's testimony to the contrary since admissions by the former on cross-
examination substantially confirmed portions of the tape transcriptions which were
read to them (see footnote 2, above) and which plainly showed that the parties were
in agreement and that all that remained was for Respondent to reduce the agreement
to writing and for the Union to call a meeting of employees at which it would submit
the agreement for ratification (though without recommendation). Vinson and
Bishop, for example, confirmed the substantial correctness of the following excerpt,
Mr. VINSON: Now, on the ratification. Bishop gets a place to hold a meeting
so we can get it ratified, well then it will be done. I'll say ratified and when
he notifies you, you have my word, I'll sign it.
Mr. JAMES: Well, we would like to make it effective next Monday.
Mr. VINSON: All right, we'll-
Vinson and Adams admitted the substantial correctness of the following excerpt:
Mr. JAMES: I'll write up something for you guys. Let me know if the people
do or don't ratify it.
Mr. VINSON. As far as the Company is concerned, this is an agreement?
Mr. JAMES: Yes, the things that we talked about.
Mr. VINSON: Then we've settled.
Mr JAMES: We don't see any reason to withhold this increase from them any
longer, we've got it agreed to .. .
Vinson also confirmed the accuracy of the following excerpt:
Mr. VINSON- Now, I say this, when the membership takes action, you write
this up and IT sign it.
Mr. JAMES: I'll send ah, I'll get enough copies, and mail them to you.
Mr. VINSON: We'll do like we did the last time.
Mr. JAMES: Yeah. Okay.3
On May 2, Vinson and Bishop wrote Respondent informing it of the membership's
refusal to accept "the negotiated wage proposal" and requested it not to put the in-
creases into effect. On May 4, Respondent posted a notice to employees, the first
in a series of three upon which the General Counsel bases his claims of disparage-
ment. After informing the employees (in material part) that following negotia-
tions with the Union, a tentative agreement was reached on May 1 and that it was
further agreed the wage increases would become effective on May 7, the notice
continued:
We have since been informed by the Union that this agreement was turned
down at a so-called ratification meeting held by them at which only 15 union
members (approximately 5% of our employees) were permitted to vote on the
offer.
$ Though a further excerpt Indicated that Vinson promised to recommend the agreement
to the employees, he explained credibly that his statement to that effect was conditioned
on insertion of a checkoff provision which the Company refused to agree to.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our attorneys advise us that limiting voting on a wage offer to only members
of the union is unlawful and therefore voids the vote at this meeting. This is
due to the fact that the Union, under the terms of our agreement as well as
under Federal Labor Law, is required to represent all employees-therefore all
employees are entitled to vote.
Yesterday, we advised the president of the Local Union of this fact.
This morning Mr. Bishop advised the Company that he had contacted the
members of the Committee and that the Union had refused to change their
position.
We have received a letter signed by the Union requesting the Company not
to put the increases into effect as planned.
At present there is some doubt in our mind as to whether we can put the in-
creases into effect since the Union has specifically asked us not to do so. There-
fore, the increases that had been agreed to will not be put into effect on Monday,
as we had hoped.
As we have previously advised the Union, these increases will not be retro-
active
We deeply regret this development
On May 18, Respondent reported to the employees the receipt of a petition signed
by a majority of the employees expressing the wish to accept the wage increases
which the Company had proposed, stated its opinion that the Union "was not acting
in the best interests of the employees" when it failed to ratify and refused to honor
the agreement reached during the negotiations, and informed the employees that it
would have to seek legal advice before taking action on the petition
On May 22, Respondent wrote Vinson outlining the course of the prior negotia-
tions, it referred to the rejection of the proposal at the membership meeting on May 2,
and stated that in its opinion the meeting was unlawfully conducted because, in re-
stricting attendance to members only, the Union had violated its obligation to repre-
sent all of the employees. Adverting then to the Union's letter of May 2, the letter
continued:
Three weeks have now elapsed and we have had no further word from you.
This lapse of time, and consideration of other facts as set forth above, cause us
to believe that nothing can be gained by further prolonging the placing into
effect of the increases, etc., which were agreed to on May 1st.
Accordingly we wish to advise you of our intention to place into effect on
May 28th the increases and other wage matters which were agreed to on May
1st with you and your committee. We ask that you honor this agreement with
us in the interest of promoting harmonious relations between your Union, the
Company and our employees.
In any event, we ask that you do not misinterpret our intentions in the action
we propose to take.
If you are of the opinion that further negotiations should be held, our action
should not be interpreted as restricting those negotiations in any way.
Vinson neither acknowledged nor made reply to that letter. However, James
testified, without denial, that around May 22 he discussed the contents of the letter
with Bishop and that Bishop voiced no objection to putting the increases into effect,
though they discussed the possibility of further meetings.
On May 25, Respondent Hosted a notice to the employees that it proposed to put
the increases into effect on May 28
On May 25, Bishop served on James a request for a meeting "to talk of wages."
Following further correspondence concerning a suitable date, negotiations were re-
sumed by agreement on June 7 and were concluded on June 14. Though the increases
were not actually reflected in the employees' pay until after June 7, the Union at no
time during the course of the resumed negotiations voiced objection to the fact that
Respondent was putting the increases into effect James' testimony to that effect
received corroboration from Adams, who also confirmed on cross-examination por-
tions of the tape transcriptions which corroborated James' further 4 on the point that
what was in issue was the Union's requests for more money for some five classifica-
tions.
In view of Adams' admissions on cross-examination I do not credit his testimony on
redirect examination that he in fact did object, as a union representative, to the Company
putting the wage increases into effect
LAWN-BOY DIVISION OUTBOARD MARINE CORP. 541
5. Requests for information
Two main items of information which figured in the testimony concerned Re-
spondent's incentive plan and employees who were being paid in excess of the base
hourly rates. There is no substance to contentions made by the General Counsel's
witnesses that Respondent refused to furnish information concerning the plan itself.
Thus the evidence established that Vinson in fact had a copy of the plan (which had
been in effect since 1957), that he quoted from it at the March 20 meeting, that he
and Chancellor discussed it, and that he was assured that the same plan continued in
effect without change. Vinson admitted that he was so informed, but testified that
he did not believe the Company's representations. However, he did not inform the
Company of his doubts.
Hutchison renewed an inquiry about the incentive plan when he came into the
negotiations on June 7, and James informed him that Vinson had a copy of the plan
and had read from it during an earlier meeting. Hutchison stated that he would
check with Vinson, and he did not pursue the matter further.
As to employees who were being paid above the base hourly rates (i.e , "red circle
rates"), Vinson inquired on March 20 how many there were, and James replied that
there were some six or eight of them. Vinson did not pursue the matter further, and
testified that though he thought James was "lust guessing," he took James' statement
at face value. On June 14 Hutchison inquired again how many employees were paid
at rates in excess of the base hourly rates and James replied that there were "some"
or "several," that he did not recall at the moment the exact number, but that he had
given the information to Vinson previously.
There was also confused testimony by Adams concerning an inquiry of James on
June 14 whether James would furnish him, if he came to the office, the names of
employees who were being paid more than the current rates for their classifications.
At one point Adams testified that James refused, stating that it was none of his
business, but elsewhere he testified that James informed him that he "could come
to the office at any time and get the names of any individuals." Furthermore, Adams
affirmed on cross-examination excerpts from tape transcriptions which showed (cor-
roborative of James' testimony) that Adams so inartificially phrased his request that
it related to attempts by "a member" of the Union (rather than by himself in his
capacity as a representative of the Union) to obtain such information from the
office and that it was in that sense which James understood and answered the
question. Although Hutchison's testimony appeared to corroborate Adams' first
version that James refused to furnish information to Adams, that testimony must be
evaluated in the light of Adams' acceptance of the tape transcription as substantially
correct. I therefore find that there was no request by the Union as such and no re-
fusal to furnish to the Union the information which Adams inquired about in the
June 14 meeting.
The Union's remaining requests for information related to classifications, rates of
pay by classifications, names of employees, and average incentive earnings, which
Vinson testified he asked for in the March meeting The evidence established that
Respondent furnished the number of employees in each classification and the wage
rates for each classification, that the parties worked from those, and that in fact
the Union's counterproposal was based on and incorporated that information.
Though Vinson contended that Respondent did not furnish the information on in-
centive earnings, he affirmed excerpts from the tape transcriptions which showed that
James supplied across-the-table incentive earnings on a variety of items, and that in
instances where James was unable to supply the precise information requested, there
was no request or suggestion from the Union that negotiations be suspended until the
information was furnished.5 To the contrary the negotiations proceeded throughout
Vinson's participation with the Union indicating its apparent satisfaction with such
information as James was able to supply on the spot Certainly at the conclusion of
the May 1 meeting there was no indication that there remained any items on which
the Union desired additional information which would require postponement of
ratification or the signing of the contract.
As for the June meetings, Hutchison testified that on June 7 he asked Resnondent
for a breakdown of all incentive workers by individual and by classification and
G Testimony by Vinson and other union representatives showed that although they
questioned (mentally) the authenticity or accuracy of some of the information which
James supplied them, they did not inform Respondent of their doubts at any time during
the course of the negotiations. Indeed, James testified that their testimony at the hear-
ing was his first knowledge that they questioned the correctness of any of the informa-
tion which he supplied.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that James explained that that would be a difficult task because Respondent did not
keep its records in a manner which would easily reflect the information sought.
Hutchison testified, however, that when he asked James to breakdown the average
earnings by classifications James stated he could not supply that information.
James testified that Hutchison asked for a breakdown of the earnings of employees
by classification and that when he replied he did not have such information with him
but did have information by occupational groups, Hutchison replied that that would
be satisfactory and that Hutchison seemed to be content because he did not renew his
request again.
Hutchison admitted that the Company supplied him on request with the average
earnings of the employees and he admitted further that Respondent informed him
that six classifications listed on its wage schedule were those of the incentive workers,
though he, like other witnesses for the General Counsel, testified to doubts as to the
accuracy of the information.
Though Hutchison also testified that he requested information as to minimum and
maximum hire rates, it was apparent from his entire testimony, particularly on cross-
examination, that what he was requesting was that those rates be incorporated into
the contract. Though Hutchison also testified that the Union asked James for the
names of employees who were being paid above the base rates, it was apparent
from his entire testimony that the latter request related to Adams' exchange with
James in which Adams inquired whether "a member" could come to the office and
obtain the information.
To the extent that conflicts exist in the testimony concerning the June meetings,
I credit James' testimony, which was again corroborated by the excerpts from the
tape transcriptions on which the General Counsel's witnesses were examined.
C. The subsequent conduct covered by the amendment
The existing contract provided that it should continue in effect until December 31,
1962, and from year to year thereafter unless either party should give 60 days'
written notice prior to December 31, 1962, that it wished to amend, modify, or
change the agreement. On October 26 Respondent notified the Union of its intent
to terminate the contract and to file a representation petition with the Board because
of its doubt of the Union's majority.
On November 12, the Union wrote Respondent requesting that it supply certain
information as listed in 10 separate items, as "necessary for the preparation and
presentation of a proposal and negotiations" with the Company. Respondent replied
on November 23, referring the Union to its letter of October 26 and to the status
of its representation petition before the Board and informed the Union that it dis-
puted the bargaining obligation which the Union assumed to exist. Respondent
also informed the Union that until both its representation petition and the Union's
pending charge against the Company were resolved, it deemed the Union's request
to be premature, but that if the Board should determine that Respondent was
obligated to continue bargaining, it would supply the information
On December 18 the Union sent Respondent a wire and a letter in which it re-
quested a meeting to negotiate a modification of the current agreement or the con-
summation of a new one prior to December 31. Respondent replied on December 20
rejecting the request and questioning the Union's sincerity in view of Respondent's
termination notice and the unresolved matters pending before the Board.
In support of its asserted good-faith doubt of the Union's majority status, Re-
spondent relies upon the following evidence:
At the time of the September 1960 election there were approximately 215 em-
ployees in the unit, of whom 112 voted for the Union and 99 against. In early
February 1962, Vinson expressed to James in a telephone conversation doubt that
the Union would reopen the contract, because it had only about 18 to 30 members,
and stated that unless more of the employees should support the Union, it "might
just forget the whole thing" Vinson not only did not deny that testimony, but
there was other evidence which confirmed the Union's weakness regarding member-
ship. Thus on February 2, the local distributed to employees a notice which stated
in part, "About half of us joined and paid dues and then started dropping off and
not supporting the local. Others failed to join." The ratification meetings of May 2
were limited in attendance to members only. Though an exact count is not possible
from the record, the evidence showed plainly that at the outside not over 25 or 30
attended. The foregoing facts were known to Respondent and were commented on
in its notice of May 4 to the employees. In addition, comments were made during
the negotiation meetings on the Union's membership problems and the consequent
weakness of its bargaining position.
LAWN-BOY DIVISION OUTBOARD MARINE CORP. 543
There was no evidence that the Union put on a membership drive between May 1
and December 31 or that it made any other effort to increase its following among
the employees.
D. Concluding findings
I conclude from my findings of fact under section B, 1 and 2, supra, that the
General Counsel did not establish by a preponderance of the evidence that Respond-
ent notified the employees before it did the Union that it was reopening the contract
and did not establish that Respondent knowingly permitted the circulation of the
petition during working hours. Despite Bishop's refusal to give James specific infor-
mation concerning the petition, James instructed the supervisors not to permit its
circulation during working hours. The only evidence which indicated that Respond-
ent was in any way sponsoring the petition was Supervisor Clark's comment to Vier
concerning Vier's apparent failure to sign. However, I do not find that that single
isolated statement is sufficient to establish Respondent's responsibility for the cir-
culation of the petition. I also reject contentions of the General Counsel and the
Union, respectively, that Respondent, by posting the notice of May 18, "sanctioned"
or "adopted or ratified" the petition. To acknowledge receipt of a petition from
employees is plainly not the equivalent of sanctioning or ratifying it or ackowledging
responsibility for its circulation.
As to the alleged threat of layoff (section, B 3, supra), I find that James' statement
to Adams was no more than a repetition of Respondent's position on the elections
issue in the bargaining negotiations, with which Adams was thoroughly familiar as a
participant. The Hebenstiet-Williams conversation, on the other hand, bore no rela-
tion to Respondent's bargaining position, nor was there indication that either super-
visor or employee was aware of Respondent's position in the negotiations Though
I credit Williams' version of the conversation (being unimpressed with Hebenstiet's
attempts to qualify and sterilize it) and though I find that Hebenstiet's statement
was coercive and a violation of Section 8(a)(1), I do not find that it constituted a
refusal to bargain.
Turning now to the negotiations proper (section B, 4 and 5. supra), and considering
first those in which Vinson participated, I conclude and find that the General Counsel
did not establish by a preponderance of the evidence that Respondent refused to
bargain in the respects alleged in the complaint during the course of the March 20
and May 1 meetings. Indeed, an agreement was reached in the latter meeting which
was assumed to be a final one, as ratification was plainly anticipated; and though
submission was to be without recommendation from the Union, it was clear from
Vinson's testimony that his withholding of recommendation was due solely to the
fact that Respondent did not choose to pay his price, i.e., inclusion of a checkoff
clause.
Insofar as requests for information were concerned, Respondent had supplied
such data as it had available, though James was not always able to supply the precise
information which the questioner sought. In no case, however, did the union repre-
sentatives express dissatisfaction with what James furnished or express the doubts
of authenticity or accuracy which they testified as witnesses they actually entertained,
nor did they at any time suggest that the negotiations be suspended while James
procured more detailed information. Thus, even if James' responses did not always
fully meet the Union's inquiries, it made no point concerning any deficiencies and
it proceeded without objection and without impediment, so far as the evidence
showed, to negotiate to a settlement of all issues.
As for the June meeting, Hutchison's requests were directed in part to informa-
tion which James had previously furnished to Vinson, and in some other respects
Hutchinson's requests were met across-the-board. As for the remaining requests,
Hutchison either indicated satisfaction with what James was able to supply on the
spot or indicated no desire to put James to the burdensome task of supplying other
information which was not readily available from Respondent's records.
Thus I conclude and find on the entire evidence that to the extent the Union made
a point of specific items of information, its requests were met across the bargaining
table during the course of the negotiations.
As to the alleged unilateral actions, the record showed that Respondent proposed
to make the wage increases effective immediately after the anticipated ratification
of the agreement but that, yielding to the Union's request of May 2, it refrained
from putting the increases into effect. On May 22, after hearing nothing from the
Union for 3 weeks, Respondent notified the Union it proposed to put the increases
into effect as of May 28, asked the Union to honor the agreement of May 1, but
informed it that if the Union desired further negotiations, Respondent's actions would
not in any way be restrictive of those negotiations. The Union made no reply; and
Bishop, the local's president, made no objection to Respondent's proposed action
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when apprised of it by James around May 22 and his written notice to James deliv-
ered on May 25 likewise stated no objection. Similarly on June 7, though the in-
crease had not yet reached the employees, the union negotiators did not request
Respondent to withhold it.
Though the bargaining situation after May 2 was not such that it can be termed an
"impasse," it seems doubtful that Respondent's act can properly be called unilateral.
To the contrary, the Union's actions (or its failure to act) and its failure to object,
despite ample notice and repeated opportunities, seemed plainly to indicate acqui-
escence in Respondent's proposed action. Certainly the Union was not entitled to
stand mute on its request of May 2 after Respondent gave formal notice of its inten-
tion to act.
In any event this is not a case of "Unilateral action by an employer without prior
discussion with the union" which would "amount to a refusal to negotiate" and would
"of necessity obstruct bargaining." N.L.R.B. v. Benne Katz, etc., d/b/a Williams-
burg Steel Products Co., 369 U.S. 736, 747. The Supreme Court there distinguished
the situation before it from "one wherein an employer, after notice and consulta-
tion, `unilaterally' institutes a wage increase identical with one which the union has
rejected as too low," citing N.L.R.B. v. Bradley Wash fountain Co., 192 F. 2d 144,
150-152 (C A. 7) , and N.L.R.B. v. Landis Tool Company, 193 F. 2d 279 (C.A. 3).
Furthermore, as the Court observed in N.L.R.B. v. Crompton-Highland Mills, Inc.,
337 U.S. 217, 224:
... [A] unilateral grant of an increase in pay made by an employer after the
same proposal has been made by the employer in the course of collective bar-
gaining . . . left unaccepted or even rejected in those negotiations . . . might
well carry no disparagement of the collective bargaining proceedings. Instead
of being regarded as an unfair labor practice, it might be welcomed by the
bargaining representative, without prejudice to the rest of the negotiations ....
The evidence here showed neither welcome nor objection, but acquiesence by the
Union, and the later negotiations proceeded, without prejudice, with the Union
simply asking for higher increases in some five classifications.
What has been said concerning wages applies as well to the alleged unilateral
establishment of job classifications. By the end of the May 1 meeting, no issue
remained between the parties concerning the additional, or changed, job classifica-
tions which had been proposed either by the one or the other. All had been discussed
at length, and the concluding colloquies showed that agreement had been reached
on all bargaining issues.
I therefore conclude and find from all the evidence that though there was no
impasse in bargaining, there was acquiescence by the Union in Respondent's act of
putting into effect both the wage increase and the job classifications in the manner
and form as previously negotiated.
We turn now to the notices to the employees and the issue of disparagement. The
notice of May 4 was for the most part a factual communication to the employees
concerning the negotiation of the agreement with the Union, its rejection in a union
meeting, the receipt of the Union's request not to put the increase into effect and of
Respondent's intention to honor that request. Such communications by an em-
ployer direct to employees regarding the status of bargaining negotiations have many
times been held not to be violative of the Act. See, e g, Anchor Rome Mills Inc.,
86 NLRB 1120, 1137-1138, 1163; Harcourt and Company, Inc., 98 NLRB 892, 894;
The Elwell-Parker Electric Company 75 NLRB 1046, 1056; E. P. Jacobs, Sr., et al.,
d/b/a Jacobs Manufacturing Company, 94 NLRB 1214, 1225; Joseph E. Cote,
d/b/a J. E. Cote, et al., 101 NLRB 1486, 1489.
The paragraph to which the brunt of the General Counsel's and the Union's attack
is directed is the following:
Our attorneys advise us that limiting voting on a wage offer to only members
of the union is unlawful and therefore voids the vote at this meeting. This is
due to the fact that the Union, under the terms of our agreement as well as
under Federal Labor Law, is required to represent all employees-therefore
all employees are entitled to vote.
The General Counsel contends that thereby Respondent went "far beyond merely
truthfully advising the employees of the course of the negotiations" and thereby
undermined and disparaged the Union. The Union urges that Respondent falsely
accused it of conducting an unlawful and void vote. Respondent argues on the
other hand that it simply informed the employees of the opinion of its attorneys that
the ratification meeting, being limited to union members, was unlawful, and that it
was not unlawful so to inform them, whether the opinion was right or wrong.
LAWN-BOY DIVISION OUTBOARD MARINE CORP. 545
Under the circumstances here, I do not find that Respondent's communication to
the employees of the opinion of its attorneys constituted disparagement or under-
mining of the Union. Cf. Armco Drainage & Metal Products, Inc., Fabricating Di-
vision, etc., 106 NLRB 725, 742, enfd. 220 F. 2d 573, 578-580 (C.A. 6). See also
S. W. Evans & Sons, 81 NLRB 161, 170, where a much stronger case was presented
for derogation from the union's status than the present one. There, after strongly
criticizing a decision of the Board as wrong and unfair, the company notified the
employees it did not intend to allow the union which represented only a small number
of the employees to decide the wages, hours, and working conditions of the great
majority and that it did not intend to abide by the Board decision, because of its
unfairness, until ordered to do so by the courts. The Board held that that notice
did not derogate from the union's status and, further, that even assuming arguendo
that it did, it constituted the company's opinion or interpretation of the Board's
decision and stated its views regarding its future dealings with the union.
As for the May 18 notice, the General Counsel points to the statement that in
the Company's opinion the petition "clearly indicates that the Union was not acting
in the best interests of the employees when the Union refused to honor the agreement
they had reached with the Company during the last negotiations," and he urges further
that by it Respondent took official notice of and sanctioned the circulation of the
petition.
As it has been found that Respondent was not responsible for the circulation of
the petition, it cannot be found that it sanctioned its circulation, after the fact, simply
by informing the employees that it had been received. Respondent was also entitled
to remind the employees that the increases which they sought had been rejected
in a union meeting and to express its opinion that such action was not in the best
interests of the employees. The notice neither expressed nor implied a desire to deal
directly with the employees, and it was thereafter to the Union that Respondent gave
formal notice on May 22, that it proposed to put the increases into effect
I therefore conclude and find that the notice of May 18 did not constitute either
disparagement or undermining of the Union
The General Counsel objects that the notice of May 25 did not mention the Union
or state that the increases were the result of any bargaining with the Union How-
ever, that information was contained in the earlier notices of May 4 and 18 The
employees were therefore fully informed that the increases they were to receive were
those which the Union had previously negotiated Furthermore, Respondent had
previously notified Vinson, formally, and Bishop informally, of its intention and had
heard no objection from either. I therefore find no disparagement or undermining
of the Union through the posting of the May 25 notice.
Turning now to the amendment (section C, supra), the issue whether Respondent
refused to bargain as there alleged turns on the question whether it was entitled to
assert a good-faith doubt of the Union's majority. That question depends in turn
on whether Respondent was guilty of unfair labor practices as charged in the original
complaint and whether any loss of majority by the Union was attributable to those
prior unfair labor practices.
I have found above that Respondent did not refuse to bargain during the period of
the negotiations, and I have also found that it engaged in no other unfair labor prac-
tices save for a single isolated violation of Section 8(a) (1). I find further that that
single violation (which is too minor to require a remedial order) could have had no
substantial effect on the Union's following among the employees. Furthermore, the
evidence showed that the loss of the Union's following had antedated the wage re-
opener and was so pronounced as to cause the International's representative to con-
sider abandoning the contract.6 No evidence was offered that the Union took any
steps to increase its membership save for its notice of February 2, in which it com-
plained of its lack of support and in which it called for a special meeting of em-
ployees to consider the question whether to reopen the contract. There was no
showing, however, that the Union attracted additional following from that activity.
To the contrary, the later results at the ratification meetings indicated plainly that
there had been no substantial accretions
The normal presumption of the continuing majority of a certified union will not
override the evidence here, emanating mainly from the union side, that the Union was
in fact without a substantial following Indeed, the General Counsel apparently con-
cedes the actual loss of majority, for he argues at one point in his brief that, "the
loss of the Union's majority in the instant case is due, at least in part, to the various
unfair labor practices committed by the Respondent."
9 Whether from neglect, lack of leadership, or other reason neither appears from the
evidence nor is relevant in view of the finding herein that the loss was in no wise at-
tributable to any unfair labor practices committed by Respondent.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, regardless of the Union's actual majority status, the evidence upon which
Respondent relied plainly furnished reasonable grounds for doubting the Union's
majority; and concurrently with giving notice of termination of the contract, it initi-
ated a representation proceeding in which the issue could be determined by the Board.
I therefore conclude and find that the Respondent was entitled to assert its doubt
of majority in refusing to furnish the information requested by the Union on Novem-
ber 12, and in refusing to meet and bargain for a new contract as requested on
December 18. Because of those conclusions I do not reach the argument of the
parties concerning the proper type of remedial order to be entered assuming that
unfair labor practices were found which did not contribute to the Union's loss of
majority. Cf. Midwestern Instruments, Inc., 133 NLRB 1132; Mission Manufac-
turing Company, 128 NLRB 275. However, it is to be noted that the Union's loss
of its following occurred before the conduct with which Respondent is charged.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) of the
Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By informing an employee that a layoff would be necessary if the electricians
persisted in their efforts to obtain a wage increase , Respondent engaged in interfer-
ence, restraint , and coercion within the meaning of Section 8 (a) (1).
4. Except as stated in conclusion of law No. 3, supra, Respondent has not en-
gaged in unfair labor practices as alleged in the complaint.
RECOMMENDATION
As I find that the single isolated violation of Section 8(a) (1) was too minor in
character to warrant the issuance of a remedial order,? I recommend that the comr
plaint be dismissed in its entirety.
7 Cf. Middletown Manufacturing Company, Inc., 141 NLRB 234.
Ideal Baking Company of Tennessee , Inc. and American Bakery
and Confectionery Workers International Union , AFL-CIO
Ideal Baking Company of Tennessee , Inc. and American Bakery
and Confectionery Workers International Union , AFL-CIO.
Cases Nos. f26-CA-1167 and 26-RC-1663. June 28, 1963
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On April 20, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had not engaged in certain unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed. He recommended, however, as more fully set
forth in the attached Intermediate Report, that the representation
election held on October 18, 1961,1 in Case No. 26-RC-1663, be set
aside and a new election held. Thereafter, the General Counsel,
American Bakery and Confectionery Workers International Union,
1 Unless otherwise indicated, all events described herein occurred in 1961.
143 NLRB No. 14.