Pacific Abrasive Supply Co.

National Labor Relations Board - Board Decisions

May 6, 1970

182 N.L.R.B. 329 (N.L.R.B. 1970)

PACIFIC ABRASIVE SUPPLY CO:
Pacific Abrasive Supply Co ., a subsidiary of the Carborun-
dum Company and International Longshoremen's and
Warehousemen 's Union , Local No. 6
International Longshoremen 's and Warehousemen's Un-
ion, Local No. 6 and Pacific Abrasive Supply Co.,
• a subsidiary • of the Carborundum Company. Cases
20-CA-4968 and 20-CB-1952 '
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 23, 1969, Trial Examiner Richard D. Taplitz
issued his Decision in the above-entitled proceeding,
finding that Respondents had engaged in and were engag-
ing in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respondent
Employer had not engaged in other unfair labor practices
alleged in the complaint. Thereafter, the Respondent
Employer and Respondent Union filed exceptions to
the Trial Examiner's Decision and supporting briefs.
The General Counsel subsequently filed cross-exceptions
and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in these
cases,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as modified
below.
The facts as found by the Trial Examiner may be
summarized as follows. On April 22, 1968, union organiz-
ers presented William R. Albrecht, manager of Respond-
ent Employer's (hereinafter referred to as Respondent)
Mountain View facility, with four signed cards designat-
ing the ILWU as bargaining representative. The cards
were signed by the Company's only four employees
classified as warehousemen. As found by the Trial Exam-
iner, a warehouse unit consisting of these four employees
is appropriate.' Albrecht took the cards and acknowl-
edged that the four signatures were genuine. At the
request of union organizer King, Albrecht then photostat-
ed and kept copies of the four cards. Albrecht, however,
refused to sign a recognition agreement, stating that
only Edward Caffery, president of the Company, could
authorize such an agreement, and that Caffery was out
of town. King then stated that he would get in touch
with the Company in a few days, after Caffery returned.
' The Respondent Employer has requested oral argument The request
is hereby denied because the record , the exceptions , and the briefs
adequately present the issues and the positions of the parties
Y Garrett Supph Compan1, 165 NLRB 561
329
Later that' day, Albrecht contacted Caffery by phone
to relate these events. Caffery told Albrecht that, as
far as he was' concerned, the Union did not represent
a majority of the- employees, and that he wanted an
election. He 'stated that union authorization cards did
not indicate the true wishes of employees because a
previous election, held a -little less than a year before
in a•unit of warehousemen, shipping and receiving clerks,
and maintenance men, had resulted in a union loss.
He also mentioned that the size of the bargaining unit
was in question The parties' briefs dispute vigorously
whether or not cards were presented at the time of
the demand of a year before, but the Trial Examiner
makes no finding on this point. However, it is uncontro-
verted that the Union's request of the previous year
was made by telegram and that the telegram had repre-
sented that the Union had a card majority. Thereafter,
on April 23, after consultation with Caffery and a Mr.
Tobin of Respondent's labor relations department,
Albrecht drafted a letter expressing doubt of the Union's
majority and asserting that a Board election was the
most appropriate way of resolving the issue. On April
24, Albrecht called union organizer King to tell him
Respondent would not recognize the Union, and that
a letter to that effect was in the mail.
On April 23, prior to the time the letter was sent,
Albrecht, by his own admission, spoke to all four of
the warehousemen' In substance, Albrecht expressed
his surprise at their wanting a union, and stated that,
with such a small group, he did not see the need for
a union. He told them the Company always had an
"open door" policy, and expressed his belief that their
problems could be worked out. He asked each employee
what he thought of it, and asked each why he wanted
a union. The employees answered that they had made
their decision, and were all in it together. Employee
Sutton, whom Albrecht saw separately from the other
three, gave the employees' desire for increased security
as another reason for signing. Albrecht also told Sutton
that he was processing an incentive raise which was
due Sutton, a subject which had been raised between
them previously
The Trial Examiner found the above discussions not
to be in violation of Section 8(a)(1) of the Act. The
General Counsel excepts to the Trial Examiner's failure
to find an 8(a)(1) violation, the principal contention
being that the incidents constituted a poll of employees
without Struksnes' safeguards. The Trial Examiner's
finding that the incidents did not violate Section 8(a)(1)
is based on his conclusions, first, that Respondent's
inquiries were not aimed at ascertaining its employees'
union sympathies, and, second, from all of the surround-
ing circumstances, that there was no coercion, explicit
or implicit, in Albrecht's remarks or questions. Thus,
Albrecht already knew that all four had signed cards,
and his remarks to them assumed that they were indeed
union adherents. Furthermore, the employees presuma-
bly knew that the Union had already shown their cards
The Trial Examiner inadvertently gives this date as April 24
Struksnes Construction Co Inc . 165 NLRB 1062
182 NLRB No. 48
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Albrecht. The thrust of Albrecht's remarks was,
as found by the Trial Examiner, to convey the Compa-
ny's position on unionization to the employees and
to try to persuade them of the Respondent's past fairness,
rather than to delve into their sentiments or activities
relating to the Union. For these reasons, we affirm
the Trial Examiner's dismissal of this 8(a)(1) allegation.
After Albrecht's telephone call of-April 24 to organizer
King, King informed the four employees of Respondent's
position. The employees had made a standing decision
to strike in the event that recognition was refused.
On the morning of April 25, all four went out on the
picket line.5 Two employees stopped picketing in the
middle of May, and the other two by early June.
The picket line did not succeed in preventing trucks
owned by Valley Express, a contractor used by Respond-
ent during the strike, from coming and going to the
warehouse. Union Business Agent Corley told two of
the pickets that he would import some "thugs" to prevent
this. On May 13, four men driving a car registered
in the name of Union Agent William LuFrano arrived
on the premises. The Valley Express truck was already
gone . Donald Elam, a nonstriking employee of the
Employer, who was driving a pickup truck, was request-
ed to stop at the instance of one of the pickets.-When
Elam rolled down his window, he was asked by two
of the unidentified men whether he was a union member.
Upon giving a negative reply, he received a blow under
the eye. After a brief scuffle, Elam escaped to the
company office and the assailants escaped down the
highway in their car. Elam's eye cut required three
stitches. The Trial Examiner's Decision sets forth in
greater detail the facts which establish the deliberate
and premeditated nature of the violence. The Trial Exam-
iner found, and we affirm, an 8(b)(1)(A) violation based
thereon.
Although he found no independent unfair labor prac-
tices by Respondent, the Trial Examiner found that
Respondent knew that the Union represented all of
the warehousemen at the time of its refusal to bargain
and thereafter, and, "as controlling Board law establishes
that the factual knowledge of majority status rebuts
any claim by an employer that it entertains a good-
faith doubt as to majority," he concluded that the refusal
violated Section 8(a)(5) and recommended the issuance
of a bargaining order. ,In doing so, he held that the
8(b)(1)(A) violation committed by the Union did not
require application of the Laura Modes'' principle of
denying a bargaining remedy to a union which evinces
an intention to secure recognition by unlawful, rather
than lawful, means. The Trial Examiner's Decision in
this case issued before the Supreme Court's decision
in N.L.R.B. v. Gissel Packing Company, Inc.7 We have
examined the Trial Examiner's Decision, the record
in this case, and the briefs of the parties in the light
S It should be noted that the strike began within' 1 year of the
election held April 27, 1967, in a somewhat larger unit However,
no charge was filed under Sec 8(b)(7)(B) See fn 12, infra
` Herbert Bernstein, et al, dlb/a Laura Modes Company, 144 NLRB
1592.
1 395 U S 575
of the Gissel decision, and we adopt the Trial Examiner's
recommendation that a bargaining order should issue.
In Gissel, the Court approved the practice of requiring
an employer to bargain with a union on the basis of
authorization cards signed by a majority of the employees
in an appropriate unit where the employer, by committing
unfair labor practices, has made ,it unlikely that a fair
election could be held. The Court held that such a
determination could be made without reference to wheth-
er the employer's claim of doubt of the union's majority
status was made in bad faith.
The Court's decision, however, leaves open the ques-
tion of whether a defense of "good-faith doubt" is
available to an employer who refuses the union's demand
but does not interfere with the election process. The
Court stated:
We thus need not decide whether, absent election
interference by an employer's unfair labor practices,
he may obtain an election only if he petitions
for one himself; whether, if he does not, he must
bargain with a card majority if the union chooses
not to seek an election; and whether, in the latter
situation, he is bound by the Board's ultimate deter-
mination of the card results regardless of his earlier
good-faith doubts, or whether he can still insist
on a union-sought election if he makes an affirmative
showing of his positive reasons for believing there
is a representation dispute."
However, in the course of its opinion in Gissel, the
Court reaffirmed its longstanding position, announced
in United Mine Workers of America, et al. v. Arkansas
Oak Flooring Co.,9 that a "Board election is not the
only method by which an employer may satisfy itself
as to the union's majority status," and that "[i]n the
absence of any bona fide dispute as to the existence
of the required majority of eligible employees, the
employer's denial of recognition of the union would
have violated Section 8(a)(5) of the Act." 10
In Gissel, the Court also succinctly stated the Board's
present position on the employer's duty to recognize
a union, in the absence of unfair labor practices:
When confronted by a recognition demand based
on possession of cards allegedly signed by a majority
of his employees, and employer need not grant
recognition immediately, but may, unless he has
knowledge independently of the cards that the union
has a majority, decline the union's request and
insist on an election, either by requesting the union
to file an election petition or by filing such a petition
himself under Section 9(c)(1)(B). [Emphasis sup-
plied.]
In the instant case, Respondent had the benefit of
three separate demonstrations of employee sentiment,
all of which corroborated the Union's claim that it
represented a majority of the employees in the unit
found appropriate. Thus, Manager Albrecht not only
was presented with signed authorization cards from all
Id at fn 18
351US 62
Id at fn 8, ,d. at 69.
PACIFIC ABRASIVE SUPPLY CO. 331
four employees in the unit, but he verified the signatures,
acknowledged their authenticity, and kept photostat cop-
ies of the cards. That the cards in fact represented
the true sentiments of the signers could no longer have
been doubted after the employees conveyed their desire
for union representation to Albrecht in the course of
his conversations with them. Finally, all four unit
employees went out on strike in support of the union
recognitional request in their behalf."
We find on these facts that "any bona fide dispute
as to the existence of the required majority of eligible
employees" which might have existed at the time the
Union made its demand upon Respondent was dissipated
by the subsequent discussion between Albrecht and
the employees, and the fact, known to Respondent,
that all four unit employees were on the picket line.12
Regardless of Respondent's prior experience with the
validity of union claims of card majorities, these events
constituted independent knowledge beyond the cards
themselves that the Union enjoyed majority status. There
being no dispute as to the question of representation
at the time of Respondent's refusal to grant recognition
and thereafter, we conclude that Respondent's refusal
to bargain in these circumstances constitutes a violation
of Section 8(a)(5) of the Act.t3
Respondent's final contention is that because of
Respondent Union's violation of Section 8(b)(1)(A), a
bargaining order is inappropriate under the principles
announced in Laura Modes Company, supra. We agree
with the Trial Examiner that, while the assault on
employee Elam is not to be condoned, one incident
in 6 or 7 months of picketing does not establish a
total disinterest on Respondent Union's part in enforcing
its representation rights through the peaceful legal proc-
ess provided by the Act so as to warrant withholding
the customary order to bargain. For all of the above
II NL R.B v Preston Feed Corp., 309 F 2d 346, 350 (C A 4)
In N.L R.B. v Harris-Woodson Company, Inc, 179 F 2d 720, 723
(C. A. 4), the court said:
The contention that the company was in doubt as to the union's
representing a majority of employees is little short of absurd in
view of the fact that practically all of the employees went out
on strike in an attempt to compel the company to bargain with
the union
See also N.L R.B v World Carpets of New York, Inc., 403 F.2d 408, 411
(C A 2), vacating and remanding 163 NLRB 597, in which picket line par-
ticipation is acknowledged to be a reliable indicator of employee senti-
ment .; N.L.R.B. v. Frick Company, 397 F.2d 956 (C.A 3, 1970), fn. 4,
and Independent, Inc , dlbla The Daily Advertiser v. N.L.R B , 406 F.2d
203 (C A 5)
11 Respondent takes the position that because the strike took place
within 1 year of an election held in essentially the same unit as that
involved here, it violated Sec 8(b)(7)(B) of the Act, and cannot be
invoked as independent evidence that the Union represented a majority.
The prior election took place on April 27, 1967, the strike on April
25, 1968 While noting that no charge of any 8(b)(7)(B) violation was
ever filed, we find it unnecessary to resolve the questions raised by
Respondent in this contention. The strike continued after April 27,
1968, and, after that date, constituted protected activity It was in
either case evidence which, at the very least, we may consider as
an indication of the employees' true desires.
13 Cf. Stecher-Traung-Schmitt Corporation, Wheeler-Van Label Com-
pany, its subsidiary, 172 NLRB No 186, enfd sub nom Wheeler-
Van Label Company, 408 F.2d 613 (C.A 2).
reasons, we find no merit in either this or any other
of the contentions of Respondent Employer.
ORDER"
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, as herein modified, and
orders that Respondents, Pacific Abrasive Supply Co.,
a subsidiary of the Carborundum Company, Mountain
View, California, its officers, agents, successors, and
assigns, and International Longshoremen's and Ware-
housemen's Union, Local No. 6, San Jose, California,
its officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Recommended
Order, as herein modified:
Delete the first sentence in section 2(b) of the Trial
Examiner's Recommended Order in Case 20-CA-4698
and substitute therefor the following:
"Upon application, reinstate Dale Butterfield, George
Sutton, Joseph Ravanelli, and George Jensen to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if
necessary, any employees hired to replace the above-
named employees."
14 In the event that this Order is enforced by a judgment of the
United States Court of Appeals, the words in the notice reading "a
Decision and Order" shall read "a Judgment of the United States
Court of Appeals enforcing an Order "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Trial Examiner: This is a con-
solidated proceeding' on complaints of unfair labor prac-
tices against Pacific Abrasive Supply Co., a subsidiary
of the Carborundum Company, herein called the Compa-
ny, and International Longshoremen's and Warehouse-
men's Union, Local No. 6, herein called the Union.
In Case 20-CA-4968 a charge was filed on April
25, 1968,2 against the Company by the Union. The
complaint issued on September 4 alleging that the Compa-
ny unlawfully interrogated employees as to their activi-
ties and sympathies in behalf of the Union and threatened
employees that they would receive less favorable work-
ing conditions in the event they selected the Union
to represent them, in violation of Section 8(a)(1) of
the National Labor Relations Act, as amended; and
unlawfully refused to recognize and bargain with the
Union as the exclusive representative of its warehouse
employees in violation of Section 8(a)(5) and (1) of
the Act. In addition the complaint alleges that the ware-
housemen engaged in a strike to protest the Company's
unfair labor practices.
The two captioned cases were consolidated during the hearing
s All dates are in 1968 unless otherwise specified
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Case 20-CB-19523 a charge was filed on October
30 against the Union by the Company The complaint
issued on December 10 and an amendment to the com-
plaint issued on January 10, 1969, alleging that the
Union through its agents assaulted an employee because
the employee refused to honor the Union's picket line,
in violation of Section 8(b)(1)(A) of the Act
The Company and the Union in their respective
answers each denied that they engaged in any unfair
labor practices
These cases were tried before me in San Francisco,
California, on March 3 and 4, 1969 All parties were
given full opportunity to participate, adduce evidence,
examine and cross-examine witnesses, submit briefs,
and present oral argument Thereafter briefs which have
been carefully considered were filed on behalf of the
General Counsel and the Company
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company, a California corporation, with its princi-
pal place of business in Mountain View, California,
herein called the Mountain View facility, is engaged
in the business of selling at wholesale, cutting tools,
files, saws, and other machine shop items During the
year preceding the issuance of the complaints the Compa-
ny shipped goods and materials valued in excess of
$50,000 directly from the State of California to customers
located outside of the State of California
The complaints allege , the Company's answer and
the Union's amended answer admit, and I find that
the Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaints allege , the answers admit, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Setting
As a wholesaler of machine shop items the Company's
operation at its Mountain View facility consists of sales
and clerical work which is performed in an office, and
warehouse work which is performed in the warehouse
To some extent as is discussed in detail below, some
of the office staff have duties that require them to
work in the warehouse
' This charge was originally filed under case 20-CC-840 By order
dated December 3 Roy 0 Hoffman Regional Director for Region
20 of the Board changed that to case 20-CB-1952
The Union has been attempting to organize the Compa-
ny's employees at the Mountain View facility for many
years In 1962 the Union filed a petition in Case
20-RC-5110 seeking an election in a unit composed
of all of the Company's employees at the Mountain
View facility, except office clerical employees, sales
employees, guards and supervisors At the same time
a different'local of the International Longshoremen's
and Warehousemen's Union participated in an election
in an office worker unit Both unions lost the ensuing
elections In 1967 the Union tried again and filed a
petition in Case 20-RC-7486 The Union sought two
separate units One consisted of warehousemen, shipping
and receiving clerks, maintenance men, including refi-
nishing operators, excluding office clericals, guards and
supervisors The other consisted of office clerical
employees However prior to the election the Union
withdrew with regard to the office employees unit and
the election, which was conducted in April 1967, proceed-
ed in the warehouse unit Once again the Union lost
The only warehouse employee who was employed
at the time of the 1967 election and was also employed
at the time of the hearing was Dale Butterfield In
early April Butterfield spoke to the other warehouse
employees about joining the Union Shortly thereafter
he called Roland Corley, the Union's business agent,
who he knew from the 1967 election, and asked him
to speak to the employees One evening about that
time Butterfield went to see Corley to discuss organiza-
tion of the warehouse and was given blank authorization
cards which he brought back to the warehouse with
him These cards designated the Union as bargaining
agent and petitioned the National Labor Relations Board
to conduct an election On April 17 all of the warehouse
employees employed by the Company at the Mountain
View facility attended a meeting at the Union's office
in San Jose, California, with Union Business Agent
Roland Corley and LeRoy King, an International organiz-
er for International Longshoremen's and Warehouse-
men's Union who was assisting the Union in its organiza-
tional activity The warehouse employees were Butter-
field, Joseph Ravanelli, George Sutton, and George Jen-
sen At this meeting the employees were told that if
they signed one type of card the Union could petition
for an election and if they signed another type of card
the Union would approach the Company and demand
recognition without going to an election The employees
decided that because there were only four warehousemen
and all of them were in agreement about joining the
Union that they did not want an election They agreed
to have the cards that had previously been given to
Butterfield destroyed and each of the warehousemen
signed an authorization card which designated the Union
as his bargaining agent with the Company on wages,
hours, and working conditions All four were signed
at the meeting on April 17
On April 22 Union Business Agent Roland Corley
and International Organizer LeRoy King went to the
Company's Mountain View facility and spoke to William
R Albrecht who was manager of the Company's Moun
PACIFIC ABRASIVE SUPPLY CO.
tain View facility.4 King told Albrecht that the Union
represented all of the Company's warehouse employees
for the purpose' of bargaining and asked him to sign
a recognition agreement. Albrecht asked how he could
know that the Union represented a majority of the
employess and King gave him the four original designa-
tion cards. King asked whether those were the signatures
of the employees and Albrecht answered that they were.
King then told Albrecht to take the cards and photostat
them. This was done5 and King took the originals back.
King again asked Albrecht to sign a recognition agree-
ment and Albrecht answered that he did not have the
authority, and that only Edward Caffery, the president
of the Company, could authorize such an agreement.
Albrecht also said that Caffery was out of town. King
replied that the cards were given in good faith and
the Company would be in trouble with the Union if
it intimidated the men. The conversation ended with
King saying that he would be in touch with the Company
in a few days.8
B., The Alleged Violations of Section 8(a)(1) of the Act
1. The facts
About noon on April 24 Manager Albrecht asked
Warehouse Foreman Jolliffe to call the warehousemen
so that he could speak to them. Warehouseman Sutton
was not working at the time but Albrecht and Jolliffe
did meet with warehousemen Ravanelli, Jensen, and
Butterfield. Albrecht told the employees that he, had
been caught unaware and was surprised by their wanting
to join the Union and he could not see why with such
a small group there was a need for a union. He also
told them that he was sure that they could sit down
and discuss things to work out any problems and that
he always had an open-door policy. Albrecht then asked
each employee in turn what the employee thought of
it and why the employee wanted a union.7 Butterfield
answered that he had made his decision and that's
why he signed. Ravanelli answered that they were all
in it together, that they all made the decision, and
that is why they signed. Jensen answered that they
all felt the same way.8
' The complaint alleges and the answer admits that Manager William
R. Albrecht and Warehouse Foreman Karl Jolliffe are agents of the
Company and supervisors within the meaning of Sec 2(11) of the
Act I so find.
King 's testimony only implies that Albrecht made copies of the
cards However, the Company in its brief acknowledges that the copies
were made
These findings are based on the credible and uncontroverted testimo-
ny of King
' This factual finding is based on the testimony of Butterfield , Ravanel-
li, and Jolliffe None were exactly certian of the words that were
used . Butterfield remembered Albrecht asking such questions as what
do you think about it, why do you think this is necessary Ravanelli
remembered Albrecht's asking why they felt they needed a union and
why they wanted a union Jolliffe recalled Albrecht's asking what they
thought about it, the union situation , what their feelings were The
sense of the questions as set forth above is common in all the testimony
and is uncontroverted
9 This finding is based on the credited testimony of Butterfield, which
is corroborated in substance by Ravanelli Jolliffe's testimony was sub-
333
Later in the same day Albrecht spoke to warehouse-
man Sutton. Once again Jolliffe was present. Albrecht
said that he was surprised when he,was approached by
the union representatives and he wanted to know what
seemed to be the problem among the warehousemen. Sut-
ton replied that the employees wanted more security. Al-
brecht then said that the Company treated the employees
fairly. Albrecht asked why Sutton felt he needed a union
and Sutton answered that they just thought they ought to
be organized.9 In the same conversation Albrecht said
that the Company was lenient in such matters as giving
the men time off and that he was going through the ad-
ministrative changes relating to incentive pay that was
due Sutton. Albrecht acknowledged that he had two con-
versations with Sutton about incentive pay. Sometime be-
fore, the conversation to which Sutton testified, Sutton
asked whether he was entitled to incentive pay after 6
months. Albrecht answered that he was and that he would
look into it. In a second conversation Albrecht explained
to Sutton that the incentive pay was only due after a full 6
months and therefore the first payment would be re-
ceived in the seventh month. Albrecht did not remember
whether the second conversation occurred at the same
time that Sutton testified to. I find that the conversation
regarding incentive pay did occur as testified to by Sut-
ton, but in the context of Albrecht's assurances to Sutton
that the Company was fair to employees.
On the night of April 24 warehouseman Butterfield
called Warehouse Foreman Jolliffe and told him that
they were going on strike but that it was nothing personal
against Jolliffe. Butterfield asked Jolliffe what he thought
about it and Jolliffe answered that the timing was wrong
because there was going to be a change in the warehouse
and there would be a lot of overtime.10
'2. Analysis 'as to the,alleged violations of Section 8(a)(1)
of the Act
Paragraph VI(a) of the complaint in Case 20-CA-4968
alleges that the Company by Manager Albrecht interro-
gated employees ' as to their activities and sympathies
in behalf of the Union in violation of Section 8(a)(1)
of the Act. I have found that Manager Albrecht did
ask all four warehousemen why they felt they needed
the Union or why they wanted a union and how they
felt about it. However, for interrogation to violate Sec-
tion 8(a)(1) of the Act it has to interfere with, restrain,
or coerce employees in the right to engage in the concert-
ed activities set forth in Section 7 of the Act. In evaluat-
ing whether interrogation is lawful or unlawful all the
surrounding circumstances must be considered. In this
case prior to the interrogation union officials had not
only demanded recognition but had given Manager
staniially corroborative except that he testified that Jensen remained
silent However Jolliffe also testified that he • was not present during
the entire conversation.
8 These findings are based on the uncontested and credited testimony
of Sutton and Jolliffe
i" This finding is based on Jolliffe's testimony Butterfield simply
testified that Jolliffe told him the strike was at the wrong time, but
he in no way contradicted Jolliffe's testimony
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albrecht copies of authorization cards signed by all
four warehousemen. Albrecht had acknowledged to the
union officials that the signatures on the authorization
cards were the signatures of the warehousemen. The
thrust of Albrecht's remarks to the four warehousemen
was in the nature of an exposition of the Company's
position on unionization. Albrecht did not ask them
whether they had joined the Union or whether they
were sympathetic toward the Union. He already knew
that they had signed cards for the Union. The questions
were not aimed at ascertaining which employees favored
the Union nor did they imply that union adherents
would be singled out for discriminatory treatment. The
total impact of the conversation was that Albrecht was
stating the Company's position on unionism and as
part of his method of communicating with the employees
he asked questions to involve them in a discussion
about the merits or demerits of unionization. In sum
I find that the interrogation was an attempt to start
a dialogue about unionization in an effort to convey
to the employees the Company's position on unionization
and was not an attempt to delve into the activities
and union sympathies of the employees. The conversa-
tion did not carry any overtones of threat or promise
to interfere with the employees' rights. Nor did the
interrogation fit into a pattern of unfair labor practices
so as to give it additional meaning. I find that Albrecht's
questions to the warehousemen did not interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act and I therefore
recommend that section VI(a) of the complaint in Case
20-CA-4968 be dismissed.
Paragraph VI(b) of the complaint in Case 20-CA-4968
alleges that the Company through Manager Albrecht
threatened employees that they would receive less favor-
able working conditions in the event they selected the
Union to represent them. The only evidence in the
record with regard to this allegation relates to the conver-
sation between Albrecht and Sutton in which Albrecht
stated that the Company was going through administra-
tive changes relating to incentive pay that was due
Sutton. However this subject had been raised before
and the repetition of it at the meeting in which Sutton
and Albrecht discussed the Union had no relation to
any threat that an employee would receive less favorable
working conditions if the Union were selected. Albrecht
told Sutton that the Company treated employees fairly
and in that connection mentioned the incentive pay
question. I therefore find that the General Counsel has
failed to establish by a preponderance of the evidence
that the Company threatened employees that they would
receive less favorable working conditions in the event
that they selected the Union to represent them and
I recommend that paragraph VI(b) of the complaint
in Case 20-CA-4968 be dismissed."
" Though there is no specific allegation in the complaint that Ware-
house Foreman Jolliffe engaged in any unfair labor practices, there
is testimony that Jolliffe told Butterfield that they had picked a bad
time to strike However I find that this remark related to the fact
that there was overtime work which the employees would not get
because they were on strike and therefore were not available for work
C. The Alleged Violation of Section 8(b)(1)(A) of the Act
1. The strike
Manager Albrecht's conversations with the ware-
housemen discussed above occurred during the day on
April 24. That evening International Organizer LeRoy
King had a telephone conversation with Manager
Albrecht King asked Albrecht what the Company's
decision was with regard to the recognition of the Union.
Albrecht answered that recognition would not be granted
because the Company thought there should be an elec-
tion. King then told Albrecht that he had heard that
Albrecht was interrogating and intimidating the employ-
ees and if that was the kind of game the Company
was going to play, and the Company would not recognize
the Union, that the Company had a strike on its hands.
Later that evening Business Agent Corley called ware-
houseman Butterfield and told him that the Company
refused to acknowledge the Union and they were going
out on strike. Butterfield in turn called the other ware-
housemen and told them that the Company would not
acknowledge the Union and that they would strike the
next morning. At 6:30 a.m. on April 25 all four ware-
housemen struck. Picket signs carrying the legends
"Unfair to Organized Labor" and "On Strike, Local
6, ILWU" were carried. At one time or another each
of the four warehousemen participated in the picketing.
Prior to the commencement of the strike the employees
had agreed among themselves that if the Company re-
fused to recognize the Union they would strike. Jensen
and Ravanelli did not picket after the middle of''May
and Butterfield and Sutton did not picket after early
June. None of these employees have returned to work
with the Company. According to the uncontradicted
testimony of King the strike lasted for 6 or 7 months.
2. The events preceding the violence
Officials of the Union actively participated in the
strike. A few days after the picketing began Business
Agent Corley, International Representative King, and
Union Agent William LuFrano12 were on the picket
line when a railway train was approaching the Company's
property. Corley and King asked the engineer of the
train to stop and the train came to a halt. Another
man who had come with the union agents picked up
a picket sign and walked back and forth across the
railroad tracks and the railroad train left.
About May 6 warehouseman Jensen called Business
Agent Corley and told him that trucks from Valley
Express were still taking the cargo out through the
picket line. Valley Express is a trucking company that
the Company relied on during the strike for shipping
cargo in and out. Corley replied that if that,situation
continued the strike would last indefinitely and that
I find that Jolliffe's remarks did not violate the Act
12 At the hearing the Union amended its answer and admitted that
LuFrano was its dispatcher and an agent of the Union acting on
the Union's behalf
PACIFIC ABRASIVE SUPPLY CO.
he would try to put a stop to it. Though Jensen testified
that Corley told him that he (Corley) would have to
go to San Francisco and get some "malignants" and
put a stop to the trucking , Jensen also testified that
that was not the exact language Corley used but that
in substance Corley characterized the people who were
to be brought from San Francisco as thugs or ruffians.
A day or two either before or after the telephone
conversation described above Corley was on the picket
line when a `truck from Valley Express was coming
toward the Company's premises . Corley asked the truck-
driver if he would refrain from coming in because there
was a strike . In a 10- or 15-minute conversation Corley
tried to convince the 'driver of the truck to honor the
picket line. However the truck continued with its
delivery. Corley then told warehousemen Jensen and
Butterfield that they were going to have to put a stop to
the trucks coming in by bringing people down from San
Francisco . He then turned to Butterfield and told Butter-
field to telephone him a day or two before a truck was due
so that they could send some guys down there to stop it,
and they would not have to be down there all the time
wasting their time.
On May 10 Jensen , Butterfield , and Business Agent
Corley had another conversation on the picket Line.
Butterfield told Corley about the trucks crossing the
picket line and Corley replied that he would try and
put a stop to it. 13
3. The assault
Donald- Elam' is an employee of the Company who
at various times has held , the positions of, warehouseman,
outside , salesman ,, and, sales . correspondent . After the,
strike,, even „though he was. not then a warehouseman,
Elam spent every,.other day working in ,the warehouse-
doing duties that were usually performed by the ware-
housemen. On some days he drove packages to United
Parcel. On May 13 he loaded a pickup truck with mer-
chandise with the intention of driving away from the
company premises . Just before Elam started driving,
four unidentified men drove up in a car which they
parked just off company property. Two of them got
out of the car and spoke to warehouseman George
Jensen . One of the unidentified men told Jensen that
they had missed the Valley truck. Then the unidentified
man noticed the truck that was being loaded by Elam.
He told Jensen that as they could not get the Valley
truck they would settle for the one that was being
loaded and that they would "Shake this guy up or
scare him up pretty bad and that way it should stop."
He asked Jensen if Jensen could stop the truck when,
it rolled out so that they could talk to the driver. '
Elam started driving the truck and Jensen told him
to stop because some people wanted to talk to him.
Jensen then walked away and the two unidentified men
approached the truck.14 One of the men approached
13 The above findings are based on the uncontradicted and credible
testimony of warehouseman Jensen The Union did not call any witness-
es
" The above findings are based on the uncontradicted and credible
testimony of Jensen
335
the truck from the passenger ' s side , tried to open the
door , and said something which Elam could not hear.
As the door was locked, Elam rolled down the window
and the man asked Elam if he belonged to the Union.
Elam answered that he did not. The man then struck
Elam under the eye with what Elam thought to be
the man ' s fist. Elam then slid back under the wheel
and tried to drive away when someone hit him from
the other side and the truck stalled. The window was
open on the driver's side. Elam scuffled with the two
men for a short time but then managed to make his
way to the company office where the police were called.'
While the assault was taking place James K. Pierce,
a disinterested witness who owns a donut shop near
the Company ' s place of business , was driving down
the road past the Company ' s premises . He saw the
assault taking place and turned into the Company's
property to give assistance . By the time he arrived
the two assailants had jumped in their car and left.
As he saw the driver of the truck was running into
the building and did not appear to be badly hurt, he
followed the car in which the assailants were riding.
While he was following the car he saw the driver reach
into his coat pocket and then hand what appeared to
him to be United States currency to the men on the
passenger ' s side and the back of the car. He copied
the license number of the car and reported it to the
police. That license number was California USV 481,
which , it was stipulated at the hearing , is the registration
on the automobile owned by William LuFrano, an agent
of the Union.
The injuries that Elam sustained were a cut under
the right eye which required cleaning , three stitches,
and a tetanus shot . In addition Elam received a scratch
on the back of his neck.
4. The Union's responsibility for the assault-conclusion
As found above: The Union engaged in a strike and
picketed the Company . Union officials participated in
attempts to make the strike effective as indicated by
the activities of Business Agent Corley and International
Representative King in stopping a railway train that
was trying to enter the Company's property on or about
April 27 and by the activities of Corley in his efforts
to convince a driver of a Valley Express truck to honor
the picket line within a few days of May 6. The fact
that the Valley, Express trucks were crossing the picket
line was seriously hurting the Union 's strike activities,.
On May 6 Business Agent Corley told warehouseman
Jensen that if the situation continued the strike would
last indefinitely, that he would try to put a stop to
it, and that he would have to go to San Francisco
" These findings are based on the credited testimony of Elam, which
is uncontradicted Jensen's version of the assault was substantially
the same , to the extent that he could see it Jensen credibly testified
that the two assailants went to the back of the truck and took out
some of the packages and scattered them on the ground The assailants
then drove away
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get some " malignants ' 116 to put a stop to the trucking.
A few days before or after May 6 Corley told Jensen
and Butterfield that they were going to have to put
a stop to the trucks coming in by bringing people down
from San Francisco and he asked Butterfield to alert
him when trucks were due. Again on May 10 Corley
spoke of stopping the trucks . On May 13 two unidentified
men who said that they intended to take some action
against a Valley Express truck came to the picket line,
told a picket that they would settle for the truck which
was driven by employee Elam, said that they would
shake up the driver of the truck, induced the picket
to stop the truck , and then beat up employee Elam.
The car in which the assailants drove was owned by
Union Agent LuFrano.
I find that the General Counsel has established by
a preponderance of the credible evidence that the Union
was responsible for the assault on employee Elam and
the assault was seen by at least one other employee,
Jensen . The General Counsel has proved his prima
facie case of union culpability by tying together the
desire of the Union to stop the trucking , the unsuccessful
peaceful attempts of the union officials to stop the
trucking , the statements by union officials to the effect
that nonpeaceful means to stop the trucking would be
tried, the assault which followed shortly thereafter by
assailants who knew that the Union wanted to stop
the trucking, and the use by such assailants of a car
owned by a union official. The Union put in no defense
but rested upon conclusion of the General Counsel's
case . The assault was not a simple flareup of tempers
on the picket line and cannot be considered to be 'a
minor isolated incident arising out of tension and emo-
tional stimulation that is inherent in most - labor disputes.
Rather , it was a preconceived and coldly • calculated
resort to strong arm tactics.
I find that the Union was responsible for the assault
on employee Elam on May 13, that the assault stemmed
from Elam ' s refusal to honor the Union' s picket line,
and that the Union violated Section 8(b)(1)(A) of the
Act. Teamsters Local 536 (The Connecticut Foundry
Co.). 165 NLRB 916.
D. The Alleged Violation of Section 8(a)(5) of the Act
1. The demand
As set forth above, International Organizer LeRoy
King demanded recognition on behalf of the warehouse-
men in his conversation with Manager Albrecht on April
22. At the same time King gave Albrecht a blank recogni-
tion agreement calling for recognition in a unit of "ware-
house employees , exclusive of supervisors, guards and
office clerical employees.""
'" Though Jensen was not certain as to the exact wording Corley
used in this conversation , the concept "thug" can be fairly inferred
from the totality of the conversation
The appropriate unit set forth in the complaint is
All warehouse employees of the [Company] at its Mountain
View, California location, excluding all other employees , profession-
al employees , guards and supervisors as defined in the Act
2. The appropriate unit
Company records as stipulated to at the hearing estab-
lish that on April 22 the Company had 16 employees
There was one secretary , four senior sales correspond-
ents, two sales correspondents ," one customer record
clerk, two order analysts, two flexotypists, and four
warehousemen . In addition there were outside salesmen
but there is no contention that the outside salesmen
should be included in the bargaining unit.'"
The flexotypists work on a machine which generates
a perforated tape which transmits orders to the home
office in Niagara Falls, New York, for use in connection
with a computer in New York. The customer record
clerk checks orders to see whether customers have
previously done business with the Company, checks
items on the order forms , and checks the customers'
credit. The duties of the office secretary, flexotypists,
and customer record clerk are clearly office clerical
in nature and these employees should be excluded from
the appropriate unit . However, the duties of the sales
correspondents , the order analysts, and the warehouse-
men, to different degrees , do take them into the ware-
house and the question is presented whether a unit
of warehousemen which excludes sales correspondents
and order analysts can be appropriate.
The warehousemen perform normal warehouse duties.
They unload railroad cars and trucks when merchandise
is delivered to the warehouse and put the merchandise
in the proper location on stock racks. They pull merchan-
dise off the stock racks to fill orders from customers,
pack the merchandise , prepare it for shipment, and
load it on trucks. The warehouse work is done at a
separate warehouse area but under the same roof as
the rest of the facility. Three of the warehousemen
worked from 8 a.m. to 4:30 p.m. and'the 'fourth from
12 noon to 7 p.m. All are under the immediate supervision
of Warehouse Foreman Karl Jolliffe and under the overall
supervision of Manager Albrecht. They are salaried but
overtime is computed on an hourly rate at time and
a half. The four warehousemen were paid as follows:
Butterfield, $495.12; Jensen, $461.28; Ravanelli, $461.28;
and Sutton , $288.30 . 20 Though there was no particular
standard of dress most of the warehousemen wore slacks
and sports shirts with open collars.
Sales correspondents communicate with customers
by telephone, mail, or in person when the customer
comes to the Company's premises . They take the order,
make sure it is clear , see to it that the inventory is
satisfactory , fill the order , and in general keep in touch
with the customer . Many of the sales correspondents
were at one time warehousemen and there is a normal
'" Except for the fact that Senior Sales Correspondent Sweet fills
in for Manager Albrecht in Albrecht ' s absence , the duties of the senior
sales correspondents and the sales correspondents are the same Both
categories will be referred to herein as sales correspondents
19 Tr p 25, '1 15, which reads " the list does include outside
salesmen " is in error and should read " the list does not
include outside salesmen " It is hereby corrected
2" Sutton worked from 2 p in to 7 p in on Monday, Tuesday, Wednes-
day, Friday , and from 7 a in to 12 p in on Saturdays He worked
the same regular schedule each week
PACIFIC ABRASIVE SUPPLY CO.
progression within the Company from the status of
warehouseman to sales representative. The prototype
of job function that the Company would desire is as
follows: The sales correspondent would write up the
order, the order would be, sent to the order analyst,
the order analyst would enter the order in the books,
one of the girls in the office would take the order
to the warehouse, and the warehousemen would fill
the order. In practice the prototype of the duties of
a sales correspondent is not fully followed. Though
the sales correspondents do spend 80 to 90 percent
of their working time filling out bids, quoting on bids,
writing to customers, taking orders over the telephone,
and in general working out problems with customers,
10 to 20 percent of their time is spent in warehouse-
related work. If a customer comes to the Company's
premises in person the sales correspondent will not
only take the order but will go into the warehouse
and fill the order himself so as to expedite the sale
for the customer who is waiting. When the sales corre-
spondent goes into the warehouse to fill an order for
such a customer the sales correspondent is under the
supervision of the warehouse foreman, uses equipment
such as forklift trucks if necessary, and obeys the same
safety rules that apply to the warehousemen.21
Based on a 6-week study made by Warehouse Forman
Jolliffe 2 or 3 months before the demand for recognition,
office personnel (sales correspondents and order analysts)
spent 4 man hours a day in rush orders and "will
call" warehouse -work for customers who personally
called. As there were six sales correspondents and two
order analysts, on the basis of an 8-hour day, there
were 64„sales correspondent or order analyst man hours
worked per,day,,of which 4 were spent in ',`will call"
or,rush order warehouseman-type work. ,This was 6.25
percent, of the -average, workday. In addition to "will
call" warehouse work, sales correspondents also help
out with' warehouse work on the comparatively rare
occasions that the warehousemen fall behind because
of double carload deliveries of merchandise, an unusually_
heavy work schedule, or inventory work. No firm figures
as to the amount of time spent in doing this type
of work was established in the record but Manager
Albrecht and Sales Correspondent Trask22 credibly tes-
tified that the total warehouse-type work done by sales
correspondents, which included both "will call" and
"help out" work, occupied between 10 and 20 percent
of the sales correspondent's time. Except when doing
warehouse-type work as stated above the sales corre-
21 The customers who personally come to the Employer's premises
are loosely called "will call" customers However if a customer phones
in an order it is usually filled by a warehouseman even though the
customer thereafter personally comes to pick up the order
22 Jensen testified that the sales correspondents spent between 4
and 8 hours a week doing warehouse-type work Though he testified
that he was referring to all of them," the record is not clear whether
he meant that all the warehousemen each spent 4 to 8 hours each
in the warehouse or the 4 to 8 hours applied to the total time spent
by the group The testimony of Albrecht and Trask was convincing
and is credited The testimony of warehousemen Butterfield and Sutton
to the effect that sales correspondents did not do warehouse-type work
very often was so vague as not to shed substantial doubt on the
testimony of Albrecht and Trask
337
spondents' work is performed in the,office. Their hours
are from 8 a.m, to 4:30 p.m. They are, under the supervi-
sion of Manager Albrecht and when Albrecht is not
present, Senior Sales Correspondent Sweet. They are
only subject to the supervision of Warehouse Foreman
Jolliffe when they are in the warehouse. The salary
of the sales correpondents varies from a low of $560
per month to a high of $731.48 a month. There is
no required standard of dress for the sales correspond-
ents though in general they tend to be better dressed
than the warehousemen. However there is much varia-
tion in dress both among the warehousemen and among
the sales correspondents. Some of the sales correspond-
ents wear informal sport clothes and others are more
formally attired.
The order analysts enter the customer's orders on
the books and write them up on a form for the warehouse-
men to fill. They are not ordinarily salesmen although
sometimes they correspond with customers when the
sales correspondents are busy Also on occasions order
analysts will help a sales correspondent by going to
the warehouse to pick up merchandise for a "will call"
customer. In addition the order analysts on occasion
help out the warehousemen in the• normal warehouse
duties when the warehousemen are running behind in
orders or when there is a special need for additional
help in the warehouse. The order analysts spend substan-
tially less time in the warehouse than the sales corre-
spondents.
I find that a unit of warehousemen as set forth in
the complaint is appropriate for bargaining. Garrett Sup-
ply .Company,165, NLRB 561. The above findings of
fact, establish ,that,, the community of interest between
the, warehousemen, , the, sales correspondents, and the
order analysts is not so great as to require a finding
that all employees who have any contact with the ware-
house must 'be included in the same bargaining unit.
The warehousemen are housed in a separate part of
the Company's premises, are supervised separately, are
paid substantially less, and, most important, do substan-
tially different work than the sales correspondents. The
sales correspondents are basically inside salesmen. Their
duty is to deal with the customers. Any contact they
have with warehouse work is incidental and subsidiary
to their basic duty in communicating with the customers.
Though to properly service a customer who has personal-
ly appeared at the Company's premises, the sales corre-
spondent follows through the order by taking the mer-
chandise from the warehouse, that is a very limited
part of his job. The small amount' of time he spends
in doing that one function does not warrant the conclu-
sion that his community of interest is one with the
warehousemen. The warehousemen have no contact with
the customers and no direct contact with the office
where the sales correspondents spend 80 to 90 percent
of their time. The very limited time that the sales corre-
spondents spend in helping out in the warehouse when
the warehousemen are overloaded is not on a regular
basis and is peripheral to the sales correspondent's
basic job of dealing with customers. As the order analysts
have even a more tenuous relationship to the warehouse
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, I also find that they may be excluded from the
bargaining unit.
In concluding that a 'unit consisting only of warehouse-
men is appropriate for bargaining I have also considered
the fact that Board elections were conducted in such
a unit in 1962 and 196723 and there is no showing
that any change in circumstances has occurred that
would now render such a unit inappropriate
3. The Union' s majority status and the Employer's
knowledge thereof
As found above, on April 22 there were four employ-
ees in the appropriate bargaining unit of warehousemen.
They were Butterfield, Jensen, Ravanelli, and Sutton.
On April 17 all four authorized the Union to represent
them by executing cards which read:
I designate the Warehouse, Processing and Allied
Workers, Local No. 6, I.L.W.U., as my bargaining
agent with the company on wages, hours and work-
ing conditions.
On April 22 International Organizer King showed
the original authorization cards to Manager Albrecht,
who kept copies of the cards and acknowledged that
they contained the signatures of the warehousemen.
On April 24 in conversations between Manager
Albrecht and the warehousemen each of the warehouse-
men personally confirmed the fact that he wanted the
Union to represent him.
On April 25 after the Company had refused to recog-
nize the Union all four warehousemen went out on
strike and thereafter each of them appeared on the
picket line.
I find that on April 22 the Union represented all
the warehouse employees and that the Company knew
the Union represented them. This knowledge was further
confirmed by Albrecht's conversations with the ware-
housemen on April 24 and the fact that all the warehouse-
men struck on April 25 and thereafter picketed.
him that the Union had dropped 'cards on his desk
signed by the employees.25 Caffery told Albrecht that
as far as he was concerned the Union did not represent
a majority of the employees and that he wanted an
election. He added that the cards did not indicate the
true wishes of the employees because of the previous
election and also that the size of the bargaining unit
was open.
As set forth in more detail above, on April 24 in
a telephone conversation, Manager Albrecht told Interna-
tional Representative King that the Company would
not recognize the Union because the Company thought
there should be an election and that a letter to that
effect was already in the mail. That letter read as follows:
April23, 1968
International Longshoremen's and Warehouse
Union
Business Agent
Local 6
580 Lorraine Avenue
San Jose, California
Gentlemen:
On April 22, 1968, two of your representatives
visited us reporting your union represents our ware-
house employees. We do not believe your union
represents the majority; or any of our employees.
Further, inasmuch as the National Labor Relations
Board conducted a union representation election
on April 27, 1967, and a majority of our employees
at that time voted against union representation,
we do not believe you represent a majority at
this time.
If the National Labor Relations Board determines
that it has sufficient interest in your claim, a secret
election by the Board is the most appropriate way
to resolve this issue and protect the rights of all
parties concerned.
4. The Company' s response to the union demand for
recoginition
As found above, on April 22 International Representa-
tive King demanded recognition in his conversation with
Manager Albrecht and Albrecht declined to recognize
the Union, stating that the matter would be referred
to Edward Caffery, the president of the Company.24
Later the same day Albrecht called Caffery and told
23 In its brief the Company states that the record is silent as to
whether sales correspondents and order analysts voted in the "ware-
houseman " unit in the 1967 election However at the hearing the
parties stipulated that the unit in the 1967 election consisted of "ware-
house people " That would be less than an accurate description of
either sales correspondents or order analysts The 1962 election in
a similar unit specifically excluded sales as well as office clerical employ-
ees
44 Throughout 1968 Caffery was president of the Company Thereafter
he became the manager of the western zone of the Carborundum
Company As manager of the western zone he is still in charge of
the Mountain View facility but his duties with regard to other parts
of the parent corporation were extended
Very truly yours,
William R. Albrecht
Manager
5. Analysis and conclusion as to the 8 (a)(5) allegation
a. The contention that the Company doubted the
appropriateness of the unit
Upon the facts set forth above the Company cannot
successfully maintain that it had a good -faith doubt
that the unit in which the Union demanded recognition
was inappropriate. The 1962 and the 1967 elections
" Caffery testified that he thought that the cards simply authorized
an election However , as set forth above, it is clear that the responsible
company official at the Mountain View facility, Manager Albrecht,
knew from a simple reading of the cards that the cards designated
the Union as the collective -bargaining agent of the warehousemen
PACIFIC ABRASIVE SUPPLY CO
were held in separate warehousemen units When the
Union demanded recognition in a warehousemen s unit
on April 22 Manager Albrecht did not raise the question
of the appropriateness of the unit In the Company's
letter of April 23 to the Union in which it declined
to recognize the Union no question was raised as to
the appropriateness of the unit The Company makes
no contention that it ever notified the Union that it
had an objection to such a unit prior to the hearing
in this matter In these circumstances I find that the
Company did not have a sincere belief that the unit
of warehousemen was inappropriate However, even
if it did have a good-faith belief that the unit of ware-
housemen without sales correspondents and order ana-
lysts was inappropriate , such a belief would not consti-
tute a valid defense if in fact that belief was erroneous
Stecher-Traung-Schmitt Corporation Wheeler- Van
Label Company, its subsidiary 172 NLRB No 186,
enfd sub nom Wheeler-Van Label Company, 408 F 2d
613, (C A 2) In that case the court of appeals held
In any event , we have held that sincere belief
that a claimed unit is inappropriate is not controlling,
indeed , we have characterized it as "of no conse
quence "
b The Company's contention that it had a good-faith
doubt that the Union represented a majority of the
warehousemen
General Counsel has established that the Union
requested bargaining in an appropriate unit at a time
when it represented a noncoerced majority of the Compa
ny's employees in that unit The Company had an obliga-
tion to bargain with the Union unless it had a good-
faith doubt that the Union represented a majority The
Board has often held that a company ' s contention of
good-faith doubt can be rebutted by proof that the
company engaged in serious unfair labor practices which
indicate that it rejected the collective-bargaining principle
or sought time within which to undermine the union
and dissipate its majority 21 The General Counsel's con-
tention that a violation of Section 8(a)(5) should be
premised on such a theory is without weight I have
found that the Company did not violate Section 8(a)(1)
as alleged in the complaint Indeed , even if Manager
Albrecht' s conversations with the employees which
formed the basis of the allegations that the Company
violated section 8 (a)(1) of the Act were found to be
such a violation , I would still be unable to find that
the violations were so far reaching as to warrant the
conclusion that the Company lacked a good -faith doubt
as to the Union ' s majority or that the Company had
rejected the collective-bargaining principle Morse Chain
Company, 175 NLRB No 98, Fashion Fair, Inc , 173
NLRB No 28 , Grafton Boat Co , Inc , 173 NLRB
No 150, J C Penney Company, Inc, 172 NLRB No
82
2h Joy Silk Mills Inc 85 NLRB 1263 enfd as modified on other
grounds 185 F 2d 732 (C A D C) cert denied 341 U S 914 Jerome
T Kane d/bl a Kane Bag Supply Company 173 NLRB No 180 Bauman
Chevrolet Inc 173 NLRB No 78
339
In Arthur F Derse, Sr, President, and Wilder Mfg
Co , Inc, 173 NLRB No 30, the Board held that
the usual way for the General Counsel to rebut an
employer's contention that it had a good-faith doubt
of a union's majority status was to prove that the
employer rejected the collective-bargaining principle or
that the employer sought to undermine the union How-
ever the Board did not say that this was the only
evidence that could show bad faith
The General Counsel urges a finding that the Company
violated Section 8(a)(5) of the Act on the theory that
the Company cannot maintain that it had a good-faith
doubt as to the Union's majority when the Company
had independent and indisputable evidence that the
employees had in fact authorized the Union to represent
them The Company on the other hand contends that
it should not be required to rely on authorization cards
in a situation where the same union had twice in the
past been rejected in a Board election by the employees
in the bargaining unit , particularly where the last election
was within a year of the instant demand for recognition 27
In a number of cases the Board has held that even
in the absence of a company' s independent violation
of the Act a violation of Section 8(a)(5) could exist
where the employer in fact had knowledge that the
employees wanted to be represented by the union Thus
in Fred Snow, et al d/b/a Snow & Sons 134 NLRB
709, enfd 308 F 2d 687 (C A 9), a company agreed
to a card check and then refused to recognize the
union after the union had won The Board found a
violation of Section 8(a)(5) holding that a company that
has no reasonable doubt as to the union's majority
status has no right to insist upon a Board-directed elec-
tion In that case the company's contention that it was
entitled to an election because the employees might
change their mind was summarily rejected by the Board
In Aaron Brothers Company of California, 158 NLRB
1077, the Board made it clear that the General Counsel
had the affirmative burden of showing that the company
did not have good-faith doubt as to the union's majority
and on the facts of that case dismissed the complaint
In a concurring opinion Board Member Jenkins stated
that bad vaith could be established "by independent
knowledge of the employer that the union has a majori-
ty "
The facts in the case of Stecher-Traung-Schmitt Cor-
poration, Wheeler-Van Label Company, its subsidiary,
supra, are very similar to those in the instant case
and the Board's adoption of the Trial Examiner's Deci-
sion therein is of controlling significance In the Stecher-
Traung-Schmitt case the Board had conducted an elec
tiun within a year of the alleged refusal to bargain
The employees voted against being represented by a
27 Though the parties did not stipulate to the date of the 1967 election
Resp Exh 7(b) indicates that the election was held on April 27
1967 The date of the election is nowhere contradicted by any of
the other parties The complaint alleges that the Company refused
to bargain on April 22 1968 5 days before the expiration of a year
from the date of the 1967 election The fact that I year had not
expired is not a defense to the Company s refusal to bargain Stecher
Traung Schmitt Corporation supra and cases cited therein
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union. In that election one group of employees (compos-
ing area employees) were included in a larger bargaining
unit. After the election the composing area employees
authorized the union to represent them in a separate
unit. A majority of the employees met with the company
representative and, told the company that they wanted
to have the union represent them as their collective-
bargaining agent. The Trial Examiner in his Decision
found that the unit was appropriate and that the company
did not have a good-faith doubt that the union represent-
ed a majority. The Trial Examiner did not find any
independent violation of the Act, but did cite Board
Member Jenkins' concurring opinion in the Snow case
to the effect that a good-faith doubt of majority status
could be rebutted by "independent knowledge of the
employer that the union has' a majority." The Board
adopted the Trial Examiner's Decision in full. The Board
Decision in turn was enforced in full by the Second
Circuit Court of appeals. , ' '
In the instant case as in Stecher-Traung-Schmitt, the
employees in the bargaining unit in effect told the employ-
er that they wanted the Union to represent them. In
addition the employer knew of the Union's majority
standing because Manager Albrecht not only saw, and
kept a copy of the authorization cards but acknowledged
to International Representative King that the cards were
signed by, the' warehousemen. I have found above that
the Company knew that the Union represented all of
the warehousemen. As controlling Board law establishes
that the'factual knowledge of majority status rebuts
any claim by an employer that it entertains a good-
faith doubt as to majority, I find that the Company
did not have a good-faith doubt and therefore violated
Section 8(a)(5) and (1) of the Actt
c. The Union's violence and the bargaining order
The customary order where an employer violates Sec-
tion 8(a)(5) of the Act requires the employer to bargain
with the union. However, when a union eviences a
total disregard of peaceful, legal process in enforcing
its representation rights, and resorts to violent tactics
to compel an employer to grant recognition, the Board
withholds its normal affirmative bargaining order. Laura
Modes Company, 144 NLRB 1592. In the Laura Modes
case the union's business agent and eight union members
entered the, plant without permission and "beat up"
one of the owners as he attempted to call his lawyer
and "pushed around" a female office 'employee. Later
during a strike another owner was beaten up. The day
prior to the first incident of violence the union had
demanded recognition and the employer requested a
day or two delay to seek advice from his attorney.
The Board found a violation of Section 8(a)(5) of the
Act but declined to grant a bargaining order.
In United 'Mineral and Chemical Corporation, 155
NLRB 1390, enforcement denied in pertinent part 391
F.2d 829 (C.A. '3), the 'Board reaffirmed the principle
set forth in Laura Modes but found on the facts before
it that the violence was not of - such a nature as to
warrant withholding of the bargaining order. The Board
found that the Union did engage in four or five instances
of serious misconduct on the picket line during a 65-
day strike. Two, of these instances involved assaults
in which persons were hit and knocked to the ground.
In one of those instances the victim received serious
injuries. The Board held that in the facts of that case
the violence did not indicate any lack of interest on
the part of the union in enforcing its statutory rights
through the Board's processes. The Board also pointed
to the fact that the union's efforts at seeking a resolution
of its claim to represent the.employees took place against
the background of serious violations of Section 8(a)(1)
by the company. The Court of Appeals for the Second
Circuit disagreed with the Board and found that the
violence was so widespread as to amount to union
intimidation to secure bargaining rights.
In Artcraft Mantel and Firplace Co., 174 NLRB No.
110, the Board adopted a 'Trial Examiner's Decision
which relied on the Laura Modes case. In Artcraft
Mantel the union engaged in numerous acts of violence
and harassment both before and after a court order
enjoining such conduct. The Trial Examiner found that
the repeated violent acts of the union amounted to
a plan of intimidation and that ' the union's violence,
intimidation, and threats were, not provoked by the
misconduct of the employer. The Board adopted the
Trial Examiner's conclusion that a bargaining order was
not warranted.
In the instant case, like the Artcraft Mantel case,
the Union's violence was not provoked by the Employ-
er's misconduct. Rather the violence was triggered by
the Union's frustration in being unable 'to maintain an
effective picket line. However, unlike the Laura Modes
case, the violence was not keyed to securing recognition
from theCompany in a direct sense but was an attempt
to beef up the, effectiveness of the picket line. The
main distinction between the instant case and the other
cited cases is that in the cited cases the union engaged
in a series of acts that amounted to a course of conduct
that was inimical to the bargaining process. Here in
a strike- which lasted in its active phase for 6 or 7
months, the evidence in the record discloses only one
act of violence., Though the injuries to the one employee
who was the victim of the assault were minor, I have
found that the assault itself was not a minor isolated
incident and certainly cannot be condoned. However,
this single incident cannot establish a course of conduct
as the violence was never repeated. It also cannot be
considered a plan of intimidation to unlawfully secure
recognition as it arose in a different context. I have
found the violence to constitute a violation of Section
8(b)(1)(A) of the Act and I shall recommend the custom-
ary order to remedy that violation. However, I do not
believe that the withholding of a bargaining order to
remedy the Company's violation of Section 8(a)(5) of
the Act would be warranted on the facts of this case.
6. The status of the strikers
The facts set forth above establish that the strike
of April 25 was to protest the Company's refusal to
PACIFIC ABRASIVE SUPPLY CO 341
grant recognition to the Union on April 22 As I have
found that the Company violated Section 8(a)(5) and
(1) of the Act by failing to grant recognition to the
Union on April 22 it follows that the employees who
struck in protest against the refusal to recognize the
Union were unfair labor practice strikers
IV THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section
III, D, above, and the activities of the Union set forth
in section III, C, above, occurring in connection with
the Company's operations described in section I, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce
V THE REMEDY
A As to Case 20-CA-4968
Having found that the Company has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act I shall recommend that it cease and desist
therefrom and upon request bargain collectively with
the Union as the exclusive representative of all employ-
ees in the unit set forth above and, if an understanding
is reached, embody such understanding in a signed agree-
ment
Having found that employees Butterfield, Sutton,
Ravanelli, and Jensen struck to protest the Company's
unlawful refusal to bargain with the Union, I shall
recommend that the Company, upon application, offer
to said employees reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if
necessary, any employees hired to replace the striking
employees I shall further recommend that in the event
that the company does not reinstate said employees
within 5 days from the employees' applications for rein-
statement, backpay shall commence running from the
date on which the 5 days expire
B As to Case 20-CB-1952
Having found that the Union has engaged in certain
unfair labor practices I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
CONCLUSIONS OF LAW
I The Company is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The following employees constitute a unit
appropriate for the purpose of collective bargaining with-
in the meaning of Section 9(a) of the Act
All warehouse employees of the Company at
its Mountain View, California location, excluding
all other employees, professional employees, guards
and supervisors as defined in the Act
4 At all times since April 22 the Union has been
the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment
5 By refusing on April 22 and thereafter to bargain
with the Union as the exclusive representative of the
employees in the said appropriate unit, the Company
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act
6 By the conduct set forth in number 5, above,
the Company has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed
to them by Section 7 of the Act and thereby has violated
Section 8(a)(1) of the Act
7 The strike engaged in by employees Dale Butter-
field, George Sutton, Joseph Ravanelli, and George Jen-
sen which commenced on April 25 was an unfair labor
practice strike
8 By being responsible for an assault on employee
Donald Elam on May 13 because Elam refused to honor
the Union's picket line, the Union violated Section
8(b)(1)(A) of the Act
9 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
RECOMMENDED ORDER
As to Case 20-CA-4968
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, I recom-
mend that the Company, Pacific Abrasive Supply Co ,
a subsidiary of the Carborundum Company, shall
I Cease and desist from
(a) Refusing to recognize and bargain with the Interna
tional Longshoremen's and Warehousemen's Union,
Local No 6, as the exclusive representative of its
employees in the following unit
All warehouse employees of the Company at
its Mountain View, California location, excluding
all other employees, professional employees, guards
and supervisors as defined in the Act
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act
2 Take the following affirmative action to effectuate
the policies of the Act
(a) Upon request, bargain collectively with the Inter-
national Longshoremen's and Warehousemen's Union,
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 6, as the exclusive 'representative of all
employees in the appropriate unit described above and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Upon application reinstate Dale Butterfield,
George Sutton, Joseph Ravanelli, and George Jensen
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any employees hired
to replace the above-named employees. In the event
that reinstatement is not effected within 5 days from
the employees' applications for reinstatement, pay back-
pay to said employees commencing from the date on
which the 5 days expire.
(c) Notify any of the above employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Post at its Mountain View, California, facilities
copies of the attached notice marked "Appendix A. "2t
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous, places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.29
As to Case 20-CB-1952
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, I recom-
mend that the Union , International Longshoremen's and
Warehousemen's Union, Local No. 6, shall:
1. Cease and desist from:
(a) Restraining and coercing employees of Pacific
Abrasive Supply Co., a subsidiary of the Carborundum
Company, by assaulting any person because that person
refuses to honor its picket line.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2" In the event that this Recommended Order is adopted by the
Board, the words " a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" and in
the first paragraph of the notice the words "A Trial Examiner of"
shall be deleted In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
11 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read- "Notify the Regional
Director for Region 20, in writing , within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at the offices and meeting halls of Internation-
al Longshoremen's and Warehousemen's Union, Local
No. 6, copies of the attached notice marked "Appendix
B."30 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by the Union's authorized representative, shall
be posted by the Union immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by Union to insure that said notices
are not altered, defaced, or covered by any other mate-
rial.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.31
3" See In 28, supra
" See fn 29, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
After a trial at which all sides had the chance to
give evidence, a Trial Examiner of the National Labor
Relations Board has found that we violated the National
Labor Relations Act, and has ordered us to post this
notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all of these things
WE WILL NOT do anything that interfers with
these rights . More specifically,
WE WILL recognize International Longshore-
men's and Warehousemen ' s Union , Local No. 6,
as the only collective-bargaining representative of
our employees in the bargaining unit which is
All warehouse employees of the Company at
its Mountain View , California location , exclud-
ing all other employees, professional employ-
ees, guards and supervisors as defined in the
Act.
WE WILL bargain , upon request, with that Union
on wages, hours, and conditions of employment,
PACIFIC ABRASIVE SUPPLY CO
and any agreement we reach will be put in writing
and signed
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL
LONGSHOREMEN 'S AND WAREHOUSEMEN'S UNION, LOCAL
No 6
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that
After a trial at which all sides had the chance to
give evidence a Trial Examiner of the National Labor
Relations Board has found that we violated the National
Labor Relations Act, and has ordered us to post this
notice
The Act gives all employees these rights
To engage in self -organization
To form, loin, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all of these things
343
WE WILL NOT do anything that restrains or coerc-
es employees with respect to these rights More
specifically,
WE WILL NOT assault any person because that
person refuses to honor our picket line
INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN'S
UNION , LOCAL No 6
Dated By
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
If members have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 13050 Federal
Building , 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 415-556-3197