Parma Water Lifter Co.

National Labor Relations Board - Board Decisions

Jan 14, 1953

102 N.L.R.B. 198 (N.L.R.B. 1953)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Questions affecting commerce exist concerning the representation of
employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. The following employees constitute separate units appropriate
for purposes of collective bargaining within the meaning of Section
9 (b) of the Act: All promotion and manual employees at the Em-
ployer's Jamaica, Mineola, and Palisades divisions, respectively, in-
cluding, but not limited to, return room employees, makeup employees,
floormen, and regular part-time employees,' but excluding drivers,
cffice and clerical employees, watchmen, guards, and supervisors as
defined in the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
MEMBER PETERSON took no part in the consideration of the above De-
cision and Direction of Elections.
There are two part-time employees employed at the Jamaica division . They regularly
work approximately 5 hours daily . According to our usual practice , we include these
employees in the unit for that division regardless of the number of hours of their employ-
ment. J. C. Penney Company, Store #1518, 86 NLRB 920.
PARMA WATER LIFTER COMPANY and INTERNATIONAL ASSOCIATION OF
MACHINISTS , LOCAL LODGE No. 1491, AFL. Case No. 19-CA-628.
January 14, 1953
Decision and Order
On September 19, 1952, Trial Examiner Howard Myers issued his
Intermediate, Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston , Styles, and Peterson].
102 NLRB No. 37.
PARMA WATER LIFTER COMPANY 199
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Parma Water Lifter Company, Parma,
Idaho, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropriate unit set forth
in the Intermediate Report.
(b) Changing its employees' hours and wages without prior con-
sultation, negotiation, or discussion with the Union, threatening its
employees with discharge if they become or remain members of the
Union, threatening to close or sell the plant if the Union successfully
organized its employees, and informing its employees that it will
not sign a union contract.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist International Association of
Machinists, Local Lodge No. 1491, AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7 of the Act, and to
refrain from any and all such activities, except to the extent that
such rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act.
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all the employees in the appropriate unit,
and embody any understanding reached in a signed agreement.
(b) Post at its place of business in Parma, Idaho, copies of the
notice attached to the Intermediate Report and marked "Appendix
A." 2 Copies of such notice, to be furnished by the Regional Director
for the Nineteenth Region (Seattle, Washington), shall, after having
been duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof in con-
spicuous places, including all places where notices to employees are
customarily posted, and maintained by it for at least sixty (60)
2 This notice , however, shall be and it hereby is amended by striking from the first para-
graph thereof the words "Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order ." In the event that this Order is enforced by a
decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order."
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consecutive days thereafter . Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10 ) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on February 29, 1952,' by International Association of
Machinists, Local Lodge No. 1491, affiliated with American Federation of Labor,
herein called the Union, the General Counsel of the National Labor Relations.
Board, herein respectively called the General Counsel and the Board, issued
his complaint on June 16, against Parma Water Lifter Company, Parma, Idaho,
herein called Respondent, alleging therein that Respondent has engaged in and
is engaging in unfair labor practices affecting commerce, within the meaning of
Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the charge and complaint, together with notice of hearing thereon,
were duly served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint in substance alleged
that Respondent (1) during February and March engaged in certain stated con-
duct and made certain statements which interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act;
(2) between February 5 and the end of March refused to bargain collectively
with the Union although the Union previously had been designated and selected
the collective bargaining representative by Respondent's employees in a certain
appropriate unit; and (3) in March retroactively granted general wage increases
to its employees without first consulting, discussing, or negotiating the increases
with the Union.
On June 27 Respondent duly filed an answer admitting certain allegations of
the complaint with respect to its corporate structure and the extent and nature
of its business but denying the commission of the alleged unfair labor practices-
Pursuant to notice, a hearing was held on July 15 at Caldwell, Idaho, before
the undersigned, the duly designated Trial Examiner. Respondent and the
General Counsel were represented by Counsel ; the Union by an official thereof-
The parties participated in the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. At the conclusion of the taking of evidence, the General
Counsel moved to conform the complaint to the proof with respect to minor in-
accuracies. The motion was granted without objection. Respondent then moved
to strike all testimony regarding events which transpired subsequent to the is-
suance of the complaint herein. The motion was denied. The parties then
waived oral argument and the filing of briefs with the undersigned. The Gen-
eral Counsel, however, submitted a memorandum confined to the question, of
Wayne C. Morris' purported supervisory status.
Upon the entire record in the case and from his observation of the witnesses.
the undersigned makes the following :
1 Unless otherwise noted all dates refer to 1952.
PARMA WATER LIFTER COMPANY
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
201,
Parma Water Lifter Company, an Idaho Corporation, has its principal offices
and plant at Parma, Idaho, where it is engaged in the manufacture, sale, instal-
lation, and distribution of farm and industrial machinery and equipment. Dur-
ing 1951 and 1952 Respondent sold merchandise at the rate in excess of $100,000
per year, more than $30,000 of which was shipped to points located outside the
.State of Idaho.
Upon the above-admitted facts and the record as a whole, the undersigned finds
that Respondent is engaged in commerce, within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Local Lodge No. 1491, affiliated with
American Federation of Labor, is a labor organization admitting to member-
ship employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion ; the refusal to bargain collectively
1. The appropriate unit
The complaint alleged, the answer admitted, and the undersigned finds that,
during all times material herein, all Respondent's production and maintenance
employees, including machinists, mechanics, welders, partsmen, shipping clerks,
helpers, and apprentices, excluding salesmen, office and clerical employees, and
supervisors as defined in the Act, constituted, and now constitute, a unit ap-
propriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act, with respect to grievances, labor disputes, rates of
pay, wages, hours of employment, and other conditions of employment. The
undersigned further finds that said unit insures to Respondent's employees the
-full benefit of their right to self-organization and collective bargaining and other-
wise effectuates the policies of the Act.
2. The majority status of the Union in the appropriate unit
At the hearing herein, there was introduced in evidence by the General
Counsel a list prepared by Respondent containing the names of all Respondent's
employees in the unit herein above found appropriate. The list shows that on
February 3 and 5 Respondent had in its employ 19 persons in said unit.' On
'behalf of the General Counsel there were offered and received in evidence 15
signed cards, each dated February 3, expressly authorizing the Union to repre-
sent the signers thereof for collective bargaining . The genuineness of the
signatures appearing on the cards was not challenged.
It is the contention of Respondent that Morris, during all times material
herein, was a supervisor within the meaning of the Act. If this contention is
meritorious then the Union did not on February 3, or at any time thereafter,
have an uncoerced majority of the employees in the appropriate unit for , as will
be shown below , Morris was not only the spearhead of the Union 's organizational
drive, but he was instrumental in bringing the Union into the plant solicited
I The list also Includes the names of Wayne C. Morris and Clarence Curtis , The em-
ployee status of these two persons is discussed in detail below.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members from among Respondent' s rank-and-file employees, and he obtained a
great many signatures to the Union's authorization cards.
Section 2 (11) of the Act defines a supervisor as:
... any individual having authority, in the interest of the employeer, to.
hire, transfer, suspend, layoff, recall , promote, discharge, assign, reward,
or discipline other employees, or responsibly to direct them, or to adjust
their grievances , or effectively to recommend such action, if in connection.
with the foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment. (Emphasis
added.)
Where the evidence fails to show, as here, that a purported supervisor possesses
one or more of the necessary statutory requisites, such a person cannot be classi-
fied as a supervisor within the meaning of the statutory definition'
It is true that over a period of about 2% years prior to the hearing herein,
Morris was told by Lee Rose, the plant foreman, on about 35 or 40 occasions,
that in Rose's absence Morris was in charge of the lathe room where Morris
and 2 other mechanics worked. It is equally true, however, that being "in
charge" of the lathe room did not entail, as evidenced by the record, any duties
or responsibilities of a supervisor as defined in the Act. Futhermore, neither
Morris nor any employee of Respondent was informed by management that
Morris held any supervisory status until February 16, when Lloyd Nelson,
Respondent's president, announced at an employees' meeting that henceforth
Morris was a "sort of a foreman."' Even then Morris' duties, responsibilities,
and authority were not disclosed or outlined to him or to anyone else in
Respondent's employ. Nor was Morris advised on February 16, or at any other
time, that his "sort of foreman" appointment was retroactive to the forepart
of February, as testified to by Nelson. Moreover, the mere attachment of
the appellation of foreman or "sort of foreman," without affirmative proof
of the presence of the statutory requisite, did not convert Morris into a
supervisor within the congressional definition.
8 The Senate in reporting its amendment to include a definition of a supervisor clearly
showed its intention to be the drawing of a line between supervisors that are truly man-
agement and minor supervisors having no such connections. Senate Report No. 105 on
S 1126 said :
In drawing an amendment to meet this situation, the committee has not been
unmindful of the fact that certain employees with minor supervisory duties have
problems which may justify their inclusions in that act. It has therefore distinguished
between straw-bosses, leadmen, set-up men, and other minor superiisinq employees on
the one hand, and the supervisor vested with genuine management prerogatives as the
right to hire or fire, discipline, or make EFFECTIVE recommendations with respect
to such action. In other words the committee has adopted the test which the Board
itself has made in numerous cases when it had permitted certain categories of super-
visory employees to be included in the same bargaining unit with the rank and file
Bethlehem Steel Co., 65 NLRB 284 (expediters) ; Pittsburgh Equitable Meter Co., 61
NLRB 880 (group leaders with authority to give instructions and to lay out the
work) ; Richard Chemical Works, 65 NLRB 14 (supervisors who are mere conduits
for transmitting orders); Endicott Johnson Co., 67 NLRB 1342, 1347 (persona having
title of foreman and assistant foreman but with no authority other than to keep
production moving) . . . [Emphasis added.] See also NLRB v. Budd Mfg. Co., 169
'F. 2d 571 (C. A. 6) ; B. B. Law and Son, 92 NLRB 826.
4 In response to a question on direct examination propounded by Respondent' s counsel
regarding Morris' supervisory status prior to February 16, Nelson testified, "Well, frankly,
I thought that Mr. Rose had informed [Morris] that he was sort of a foreman prior to
that time. I know that if there, was any work brought into the plant by either Mr. Reed
(an official of Respondent) or myself, it would have been taken to Morris in the lathe
room, and we are the managers."
PARMA WATER LIFTER COMPANY 203
Since the amendment to the Act in 1947, it has been consistently and repeatedly
held, in cases dealing with determination of supervisors, that it was of absolute
nycesi'ty that the record clearly show that one or more types of authority
set forth in the Act be present in order to prove that a person possessed a
supervisory position .5 It likewise has been consistently held that the intention
of an employer to confer supervisory authority upon an employee is insufficient
absent a clear announcement by him to said employee of such authority.'
Not only does the record fail to disclose that Morris possessed any statutory
requirements of a supervisor, but the contrary is cogently revealed. Morris
testified without contradiction, and the undersigned finds, that he never was
authorized by Respondent to hire, transfer, suspend , lay off, recall, promote,
discharge, assign , reward, or discipline employees or to responsibly direct them,
or to adjust their grievances or effectively recommend such action ; that he
devoted his full time to manual labor ; and that whatever requests he made
to his two comachinists regarding the performance of certain tasks was of a
mere routine nature which required the use of no independent judgment. Leon-
ard R. Doman, a machinist who worked in the lathe shop with Morris for
about 4 years, credibly testified, futhermore, that he neither received nor took
any orders from Morris ; that he occasionally had requested Morris and Richard
Stutheit, the other lathe shop machinist, to perform certain work ; that Morris
had made such requests of him and Stutheit ; that Stutheit had made similar
requests of him and Morris ; and that each performed the requested work.
It is thus clear that Morris never possessed nor exercised any independent
judgment or discretion in the performance of his duties sufficient to warrant a
finding that he responsibly directed the work of other employees.' Such direc-
tions as he may have given appear to be but merely routine in nature.
Upon the entire record in the case, the undersigned finds that at no time
during his employment with Respondent was Morris a supervisor within the
meaning of the Act.
Nelson testified that on February 4 Curtis assumed the position of assistant
foreman ; that Curtis was informed of this position at the employees' meeting
of February 16; that for the past year or two Curtis had been assuming the
duties of a foreman; and that about a year or two ago the shop foreman
had informed Curtis that in his absence Curtis was the assistant in charge.
Doman testified, "the way I understand it," when Rose " is gone," Curtis is
his foreman and that Curtis has given him orders. The record, however, is
silent as to whether Curtis gave Doman orders prior or subsequent to February
16. In any event, it is significant to note that Nelson apparently considered
Curtis a nonsupervisory welder and Morris a nonsupervisory machinist as of
about February 12 for when Nelson prepared, on or about February 12, the
wage increases which were announced to the employees on February 16 he
grouped Curtis among the nonsupervisory welders and Morris among the
nonsupervisory machinists .8 In addition, as in the case of Morris, Curtis was
5 For example, Swum City Brewing Company, 85 NLRB 1164, where it was held that
an employee without authority to hire, discharge, or otherwise affect the status of other
employees of his employer was not a supervisor; Calumet and Hecla Consolidated Copper
Co., 86 NLRB 126, where it was held that group leaders without the statutory requisites
were not supervisors ; and Warren Petroleum Corp., 97 NLRB 1458 where it was held
that gang foreman who do not possess or exercise the power of effective recommendation
or responsible direction over a crew were not supervisors.
See, for example, Continental Oil ComVWy, 995 NLRB 358; George Knight and Co., 93
NLRB 1193; United States Gypsum Company, 91 NLRB 404.
' Bear Brand Hosiery Company, 93 NLRB 95; Weyerhaeuser Timber Company, 85 NLRB
1170.
See Respondent's exhibit #2. Neither Rose's nor Gilmore's name, the two persons
Whose supervisory status is not in dispute, appear in Nelson's calculations for pay raises.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never advised by management the extent of his duties, responsibilities, and
authority as "assistant in charge" or "assistant foreman" in the absence of
the foreman.' Upon the record as a whole, the undersigned finds that prior to
February 16 Curtis was not a supervisor within the meaning of the Act.
The undersigned has compared the names appearing on the aforesaid authori-
zation cards with the list submitted by Respondent and received in evidence and
finds that as of February 3, 15 employees in the appropriate unit had signed cards
designating the Union as their collective bargaining representative. The under-
signed therefore finds that on February 3 the Union was, and at all times since
has been, the duly designated representative of Respondent's employees in the
unit heretofore found appropriate. Accordingly, pursuant to Section 9 (a)
of the Act, the Union was, and now is, the exclusive representative of all the
employees in said unit, for the purposes of collective bargaining with respect to
grievances, labor disputes, rates of pay, wages, hours of employment, and other
conditions of employment.
3. The pertinent facts as to the refusal to bargain
On Saturday, February 2, Morris and Stutheit visited the Union' s head-
quarters in Boise, Idaho, and there informed Allin Walker, the Union' s business
agent, that they desired information relative to organizing Respondent's em-
ployees. Walker gave them some union authorization cards, literature, and
buttons.
The following day, February 3, Morris and Stutheit contacted approximately
18 employees of Respondent and secured the signatures of 15 employees to the
cards Walker had given them.
On February 4 Morris reported for work wearing a union button as did Doman
and Stutheit. About 10 o'clock that morning, Rose asked Morris "what was
going on, if [the employees] were organizing the shop." Morris replied that
they "were trying to" and that there would be a meeting at his home that evening.
At Morris' request, Rose agreed not to inform Nelson of the employees' organiz-
ing activities or of the scheduled meeting until after the meeting had been held.
Approximately 15 employees attended the meeting at Morris' home.10 There,
Walker outlined the advantages of having the Union represent the employees as
their collective-bargaining representative and then discussed certain other mat-
ters pertaining to procedures to be followed during the formative stages of the
organizational campaign. Before the meeting concluded, a secret ballot was
taken and 14 employees voted in favor of having the Union represent them and
1 voted against it.
Regarding a conversation he had with Rose at about 9 a. m. on February 5
Morris credibly, and without contradiction, testified as follows :
Rose asked me if I thought the fellows would be satisfied if Nelson raised
the pay of all welders to $1.25, all of the machinists to $1.35, and then grant
a ten percent raise on that basis. I replied, "I don't know. I can only speak
for myself, but I think that is about what we are trying to work for," and
° An employee to be supervisor must perform that duty and exercise his authority at regu-
lar intervals and not just occasionally. See Board's Sixteenth Annual Report at page 113.
B. F. Goodrich Co., 92 NLRB 575; Colorado Builders Supply Co., 90 NLRB 2002; Phillips
Oil Co., 91 NLRB 534; Florence Stove Co., 94 NLRB 213. When and how often Curtis
acted as "assistant in charge" or as "assistant foreman" Is not disclosed by the record.
It may be reasonably assumed that Curtis acted as supervisor very rarely for Nelson
testified, "I didn't think Mr. Rose had been absent."
10 Rose attended at Morris ' invitation. Foreman Joe Gilmore attended without invita-
tion , but was permitted to remain throughout the meeting upon his assurances that he
was not there as a representative of management.
PARMA WATER LIFTER COMPANY 205
he said, "Well, here is what Nelson says he will do, ... He is willing to
do that if you will drop this union thing," but he said , "Nelson says before
he will sign the union contract he will sell the shop and go out of busi-
ness ... He has a chance to sell it to James Watson ... He has already
contacted the other stockholders and gotten their permission to sell."
Morris further credibly testified, and without contradiction, that about 2 hours
later, Rose came to him and asked if he would select 2 other employees, 1 who
favored the Union and 1 who did not, as a committee to meet with Nelson in
order to "thrash this thing out" ; that he replied that before doing so he would
like permission to call Walker, which permission Rose gave ; that, besides himself,
he selected an employee who had signed an authorization card and one who had
not to meet with Nelson ; that he called Walker and informed him of the proposed
meeting ; and that for Some unknown reason the meeting with Nelson did not
materialize.
Walker testified, and the undersigned finds, that after being informed by
Morris of the suggested meeting, he telephoned Eli A. Weston, Respondent's
counsel , who suggested that he communicate directly with Nelson ; that he then
telephoned Nelson, advised Nelson that the Union had sent Respondent a regis-
tered letter requesting recognition as representative of Respondent' s employees
and therefore, since the proposed meeting between Nelson and the committee of
three employees involved matters "affecting union representation ," he, as a
representative of the Union, should be present at such a meeting ; and that he
then suggested that the meeting be postponed, to which suggestion Nelson agreed.
Earl R. Young credibly, and without contradiction, testified that when Rose
saw him in the plant on February 5, wearing a union button, Rose suggested that
he remove the button, adding that if he favored the Union he should go to a
union shop and leave Respondent's employees alone for they were not in favor
of a union ; that when he replied that he was not the only employee who voted at
the previous night's meeting to have the Union as the bargaining representative,
Rose responded, "some of the boys had changed their minds" ; that about an hour
later, Rose told him that Nelson was going to raise the employees' wages to
whatever amount the Wage Stabilization Board would allow ; that later in the
day, Rose came to him and said, "Look, there is the Union for you. They won't
even let the employer meet with his employees" ; and that Rose then suggested
that he throw away his union button or go to a plant having a union shop and
"leave us alone."
Young credibly testified further, and without contradiction, that during the
morning of February 5, Foreman Gilmore said to him in the presence of another
employee, "I have been in the office talking with Lloyd (Nelson) trying to keep
him from getting mad, . . . he threatened to sell the shop and hire a lawyer
to fix this thing, and I think I have him cooled down."
Rose testified, and the undersigned finds, that about midafternoon on February
5, he noticed Curtis and Alva Riggs talking and they had "this piece of paper" ;
that he went over to them and asked Riggs if he could have the paper ; that after
Riggs had handed him the paper and while walking toward his office , he read
the paper ; that the paper contained only 4 or 5 names ; that he then went to
where Riggs was working and asked him the purpose of the paper; that Riggs
replied, "It is a petition and we are sick and tired of this union deal, and we
want to get out of it"; that he then returned the petition to Riggs ; that later
Dawson P. Cox said to him, "Some of the boys are objecting to signing this petition
because it doesn't have a heading and they don't know what they are signing" ;
that when he asked Cox what heading Cox wanted on the petition Cox replied,
"Well , generally , they just want to get out of the union" ; and that he then dic-
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tated to Cox, "We the undersigned wish to be released from all association with
the IMA Union" ; that he saw Cox write those words on the petition ; and that
he did not again see that petition until the day of the hearing herein.
Cox testified, and the undersigned finds, that he signed the aforesaid petition
after "we heard that Mr. Nelson was going to raise our wages, we figured we
could get a raise and not have the union, and we were satisfied with the raise,"
and for the further reason that he feared, because of the remarks he had heard,
that the plant might be closed or sold if the Union successfully organized the
employees.
Albert Lyall credibly testified that on or about February 5 Rose told him, "if
[your] job means anything to [you] go through and sign" the withdrawal
petition, but that he did not do so.
Young, without contradiction, credibly testified further that Sam Pollard, in
Rose's presence, said to him, "Here, you had better sign this [withdrawal] peti-
tion"; and that he signed it saying, "I'll sign this petition but I don't think it is
any good. . . . The reason that I'm signing this petition is to get you guys off
my neck."
Over Rose's name there was posted in the plant on February 8 a notice to the
effect that, unless otherwise advised by Rose or some other responsible official,
henceforth the workweek would be 40 hours. Contrary to Nelson's testimony,
the undersigned finds that the change in the workweek, which was put into effect
without prior consultation, negotiation, or discussion with the Union, affected all
the shop employees and not only a few of them. This finding is supported by
the credible and uncontroverted testimony of Morris and Young. The former
testified that the entire shop worked 44 hours the week immediately prior to
February 8, and he worked the same number of hours for at least 2 weeks imme-
diately prior to said date. Young testified that he and his coworker had put
in a lot of overtime prior to the posting of the 40-hour week notice ; that some-
time after the posting of said notice they informed their foreman, Gilmore, that
they intended to quit their jobs because of the loss of their overtime pay ; and
that within about an hour Gilmore submitted to them a new wage scale.
On February 9 Nelson wrote Walker, in response to the latter's letter of Febru-
ary 5 requesting a bargaining conference, that the latter was mistaken in his
belief that the Union represented a majority of Respondent's employees because
on February 6 Respondent's counsel, Weston, had received a registered letter
containing the aforementioned withdrawal petition signed by 11 employees.
On February 16 Nelson announced to the employees, among other things, that
retroactive to February 4 the employees would be given wage increases. These
increases, as Respondent admits, were given without prior consultation, negotia-
tion, or discussion with the Union.
With respect to the wage increases, Nelson testified that on February 1 he
decided to grant the shop employees wage increases ; that he had asked Rose
that day, "Do you think the boys would enjoy a raise?" to which Rose replied,
"Are you kidding?"; that he then told Rose, "Well, effective the first pay week
in February there shall be an approximate ten percent raise for the men," to
which Rose stated, "They will certainly appreciate it"; and that he then re-
quested, and secured from Weston, an opinion as to the legality of the proposed
increases.
Rose testified that he "guessed" that in January he and Nelson discussed a
possible general wage increase ; that Nelson advised him at that time he was
ascertaining whether such an increase could legally be given ; and that he
"thought" he relayed this information to the employees about the time he
discussed the matter with Nelson. However, when Respondent 's counsel queried
PARMA WATER LIFTER COMPANY 207
Rose, a witness for Respondent, as to the identity of the employees he had
informed of the proposed raise in wages, Rose testified that he could not recall
to whom he spoke about the matter adding, "I think I mentioned it" to Cox.
On June 9 Nelson, Weston, Walker, and Morris met for the purpose of amicably
disposing of the matters in issue in the instant proceeding. Walker proposed
that Respondent forthwith bargain with the Union. Nelson replied that he
would do so provided (1) the Union withdrew the charge then pending before
the Board (upon which the complaint herein was based) and (2) the employees,
by a majority vote at a secret election to be held at a time agreeable to the
Union, select the Union as their bargaining representative. The Union refused
to accept Respondent's proposition and Respondent refused the Union's and
thus the meeting concluded.
4. Concluding findings as to the refusal to bargain
Uncontroverted credible evidence establishes that as of February 5," when
the Union sought to fix a time to meet with Respondent to negotiate a collective-
bargaining agreement on behalf of its employees in the appropriate unit, the
Union, in fact, had been designated by a majority of said employees as their
bargaining representative. The fact that Respondent knew of the Union's major-
ity status is not open to dispute for Rose and Gilmore attended the February 4
meeting at Morris' home where 14 employees voted by secret ballot to designate
the Union as their collective-bargaining representative. Under those circum-
stances, Respondent was under a statutory duty to recognize the Union as the
exclusive representative of the employees in the appropriate unit and to deal
with it as such representative. However, the credible evidence, as summarized
above, most of which is uncontroverted, discloses that instead of fulfilling its
obligations under the Act, Respondent engaged in serious unfair labor practices
designed to destroy the Union's majority status and thus thwarted the employees'
self-organizational and collective-bargaining activities. Thus, undisputed are:
(1) Rose's statement to Morris that Nelson was willing to grant the welders
and machinists wage increases provided the employees dropped "this union
thing," and then advising Morris that before Nelson would sign a union contract
he would sell "the shop and go out of business"; ' (2) Rose's suggestion to Morris
that the latter select a committee of three to be composed of Morris, "somebody
that is not so much for the Union," and "somebody that is" for the Union, to
meet with Nelson;' (3) Rose's activities, as found above, in support of the
withdrawal petition; ' (4) Gilmore's February 5 statement to Young to the
effect that Nelson would sell the plant if the employees persisted in supporting
the Union; and (5) Respondent's action in unilaterally changing the employees'
u The day Respondent received the Union's request.
12 Such comments concerning the benefits which the employees would receive if they
repudiated the Union and the resulting consequences they would suffer if they adhered
to the Union are plain violations of the Act. N. L. R. B. v. Gate City Cotton Mills, 167 F.
2d 647 (C. A. 5) ; N. L. R. B. v. Brown Paper Mill Co ., Inc., 133 F. 2d 988 (C. A. 5) ;
N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980 (C. A. 3) ; N. L. R. B. v. Continental
Oil Co., 159 F. 2d 326 (C. A. 10) ; N. L. R. B . v. Peyton Packing Co., 142 F. 2d 1009
(C. A. 5).
is The suggested meeting was for the sole purpose of bypassing the Union , the known
designated bargaining representative.
14 The obvious purpose of this petition was the attempted dissipation of the Union's
majority status . Respondent's contention that the employees voluntarily repudiated the
Union and therefore it was not obligated to recognize or bargain with the Union is without
merit . Medo Photo Supply Company v . N. L. B. B., 821 U. S. 678; N. L. R. B. V. Porcelain
Steele, 138 F. 2d 840 (C. A. 6).
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment and raising their wages at a time when the Union was
seeking recognition and a conference to negotiate a bargaining contract"
The undersigned is convinced, and finds, that Respondent did not announce
the wage increases until February 5, and then only after it became aware that
a majority of its employees had voted to have the Union as their bargaining-
representative. This finding is buttressed by the fact that (1) Morris first
became aware that Respondent planned to grant the increases when Rose told
him on February 5 of Nelson's plan to increase the pay of the men; (2) when
Lyall asked Rose on February 1 for pay increase, Rose refused the request and
suggested that Lyall, if dissatisfied with his pay, should "go on and get [his]
check"; (3) Doman for the first time was informed of the wage increase on
February 9; (4) Cox signed the withdrawal petition on February 5 and 6.
because, besides his fears that the plant might be sold, he was informed that
Nelson planned to raise the employees' wages. Such conduct, together with
Respondent's other unlawful activities in opposing the Union, fully warrants
a conclusion that the wage increases interfered "with the right of self-organi-
zation by emphasizing to the employees that there is-no necessity for a collective
bargaining agent." 16
Upon the entire record in the case, which clearly establishes that at no time
did Respondent attempt to fulfill its statutory obligation to bargain collectively
with the chosen representative of the majority of the employees in the appro-
priate unit, the undersigned finds that on February 9,17 and at all times there-
after, Respondent failed and refused to bargain collectively with the Union as
the duly designated representatives of the employees in the unit hereinabove
found appropriate, in violation of Section 8 (a) (5) and (1) of the Act, thereby
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 thereof.
The undersigned further finds that by (1) Rose's February 5 statements to,
Morris ; (2) Rose's statements on February 5 to Young to remove his union
button and Rose's invitation to Young to seek employment elsewhere if Young
wanted to affiliate with a union; (3) Rose's activities in support of the with-
drawal petition ; (4) Rose's suggestion of having a committee meet with Nelson
to discuss matters obviously within the jurisdiction of the Union; (5) Gilmore's
statement to Young to the effect that Nelson would sell the plant if the employees
persisted in adhering to the Union; (6) Rose's statement to Lyall that if Lyall's
job meant anything to him, Lyall had better sign the withdrawal petition, Re-
spondent, in violation of Section 8 (a) (1) of the Act, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
At the hearing, Respondent contended that it cannot be held liable for Rose's
antiunion statements because those statements were merely Rose's personal
views and arguments. The record is clear that Rose made numerous statements
which contained threats of reprisals if the employees continued their activities
in behalf of the Union and promises of benefits if the employees repudiated the
16 Such conduct , which was designed to forcibly impress upon the employees that adher-
ence to the Union would avail them naught, has been held to be violative of the Act. See
May Department Stores Co. v. N. L. R. B., 326 U. S. 376; N. L. R. B . v. Crown Can Co., 138
F. 2d 263 (C. A. 8) ; N. L. R. B. v. Mt. Clemens Pottery Co ., 147 F. 2d 262 (C. A. 6) ; F. W.
Woolworth Co. V. N. L. R. B., 121 F. 2d 658 ( C. A. 2) ; Rapid Roller Co. v. N. L. R. B., 120
F. 2d 452 (C. A. 7) ; Southern Colorado Power Co. v. N. L. R. B., 111 F. 2d 539 (C. A. 10) ;
N. L. R. B. v. Wytheville Knitting Mills, Inc ., 175 F . 2d 238 (C. A. 3).
14 May Department Stores Co . v. N. L. R. B., 326 U . S. 376, 385.
17 The date of Respondent 's letter to the Union refusing to recognize the Union 's majority
status or to bargain with it.
PARMA WATER LIFTER COMPANY 209
Union. In the face of such evidence, most of which is uncontroverted, Re-
spondent's contention is without merit .m
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and, such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, violative
of Section 8 (a) (1) and (5) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent on February 9, 1952, and at all times there-
after, has refused to bargain collectively with the Union as the representative
of a majority of the employees in an appropriate unit, the undersigned will
recommend that Respondent, upon request, bargain collectively with the Union
as the exclusive representative of all employees in the unit heretofore found
appropriate, and if an agreement is reached, embody such understanding in a
signed agreement.
The unfair labor practices found to have been engaged in by Respondent are
of such a character and scope that in order to insure the employees here in-
volved their full rights guaranteed by the Act it will be recommended that Re-
spondent cease and desist from in any manner interfering with, restraining,
and coercing its employees in their right to self-organization.
Upon the basis of the foregoing findings of fact and upon the record as a
whole, the undersigned makes the following:
CONCLUSIONS of LAW
1. International Association of Machinists, Local Lodge No. 1491, affiliated
with American Federation of Labor, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All Respondent's production and maintenance employees, including ma-
chinists, mechanics, welders, and partsmen, shipping clerks, helpers, and ap-
prentices, excluding salesmen, office and clerical employees, and supervisors as
defined in the Act, constitute, and during all times material herein constituted,
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. International Association of Machinists, Local Lodge No. 1491, affiliated
with American Federation of Labor, was on February 3, 1952, and at all times
thereafter has been, the exclusive representative of all the employees in the
above-described appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing on February 9, 1952, and at all times thereafter, to bargain
collectively with the Union, as the exclusive representative of all the employees
le N. L. R. B. v. Beatrice Foods, 183, F. 2d 726 (C. A. 10) ; N L. R. B. v. Electric City
Dyeing Co., supra; N. L. R. B. v. Kropp Forge Co., 178 F. 2d 822 (C. A. 7) ; N. L. R. B. v.
Gate City Cotton Mills, supra.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate unit, Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By changing the hours of employment of its employees and granting them
wage increases without prior consultation, negotiation, or discussion with the
Union, by threatening its employees with discharge if they remained or became
members of the Union, by threatening to close or sell the plant if the Union
successfully organized the employees, by informing its employees that it would
not sign a union contract thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act,
Respondent has engaged in, and is engaging in, unfair labor practices, within
the meaning of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with INTERNATIONAL Asso-
CIATION OF MACHINISTS, LOCAL LODGE 1491, affiliated with AMERICAN FED-
ERATION OF LABOR, as the exclusive representative of all employees in the
bargaining unit described herein, with respect to grievances , labor disputes,
wages, rates of pay, hou;s of employment , and other conditions of employ-
ment, and if an understanding is reached , embody such understanding in a
signed agreement . The bargaining unit is :
All production and maintenance employees , including machinists, weld-
ers, partsmen , shipping clerks, helpers and apprentices , but excluding
office and clerical employees , and supervisors as defined in the Act.
WE wILL NOT threaten to discharge any employee if he joins or remains
a member of the above -named union ; or threaten to close or sell our plant
if the Union successfully organizes our employees ; or change the hours of
employment or change the wage scale without prior consultation , negotiation,
or discussion with the Union , or announce that we will not sign a union
contract.
WE WILL NOT interfere with the Union 's efforts to organize our employees,
or refuse to ,bargain with,the Union as the exclusive representative of the
employees in the above-described bargaining unit , or in any other manner
interfere with , restrain , or coerce our employees in the exercise of their right
to self-organization , to form labor organizations , to join or assist INTER-
NATIONAL ASSOCIATION OF MACHINISTS , LOCAL LODGE No. 1491, affiliated
with AMERICAN FEDERATION OF LABOR , or any other labor organization,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining-
or other mutual aid or protection , or to refrain from any and all of such
activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of em-
ployment , as authorized - iif Section 8 (a) (8) of the National Labor Relations.
Act.
POULTRY ENTERPRISES, INC. 2.11
All our employees are free to become or remain members of the above-named
union or any other labor organization except to the extent that this right may
be affected by an agreement in conformity with Section 8 ( a) (3) of the amended
Act.
PARMA WATER . LIFTER COMPANY,
Employer.
Dated ---------------- By ----------------------------------
(Representative) (Title)
This notice must remain posted 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
POULTRY ENTERPRISES, INC. and AMALGAMATED MEAT CUTMR$ &
BUTCTIF:R WORKMEN OF NORTH AMERICA , LOCAL 442, A. F. OF L.
Case No. 10-CA-1223. January 14, 1953
Decision and Order
On July 9, 1952, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take -certain affirmative action, as set, forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief." The
General Counsel and the Union filed no exceptions.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed 3 The Board has considered the Inter-
' The Respondent 's request for oral argument is denied because in our opinion the record,
exceptions , and brief adequately present the issues and positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated
its powers in connection with this case to a three-member panel [ Members Houston,
Murdock, and Styles].
8 The Respondent requests the dismissal of the complaint oi, the ground that the findings
of the Trial=:Exa*iner, are net ,supported , by the preponderance of evidence ,and the
Trial Examiner demonstrated bias and prejudice in crediting only those witnesses whose
testimony supported the complaint . It is the Board ' s established principle that a Trial
Examiner's credibility findings are entitled to great weight, because in resolving conflicting
testimony he is in a position to observe the demeanor of the witnesses . Wood Manufac-
turing Company , 95 NLRB 633 ; Somerset Classics , Inc., 90 NLRB 1676. A careful analysis
of the record reveals no bias or prejudice on the part of the Trial Examiner and persuades
us that the Trial Examiner 's findings in this case are supported by the preponderance of
the evidence.
The Respondent contends also that the complaint should be dismissed on grounds relating
to the compliance status of the Local and the International . The fact of compliance by
a labor organization which is required to comply is a matter for administrative determina-
tiow;;,s*d is not llsiq abte bm 'tha .lkasties. Moreover , the Board is administratively ,-satisfied.
that the Local and the International are, and have been , in compliance at all material,
times. See Sunbeam Corporation, 94 NLRB 844; Sw4ft & Company, 94 NLRB 917,
cf. Highland Park Manufacturing Company, 340 U. S. 929. We hereby deny the Respond-
ent's motion to dismiss the complaint.
102 NLRB No. 27.