Rehrig-Pacific Co.

National Labor Relations Board - Board Decisions

May 19, 1952

99 N.L.R.B. 163 (N.L.R.B. 1952)

REHRIG-PACIFIC COMPANY 163
Employers Eaton Fruit Co., Wilco Produce Co., H. Tatosian & Com-
pany, Colorado River Farms, and L.M. Azhidarian Company, respec-
tively, are operated as separate commercial enterprises and not merely
as incidents to or in conjunction with the farming operations of those
Employers. Accordingly we find that the employees in the packing
sheds of each of these Employers are "employees" within the meaning
of the Act.
We find that a question affecting commerce exists concerning the
representation of employees of each of these Employers within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
We find that all packing shed employees of each of the several
Employers set forth above in packing sheds of these Employers in
the vicinity of Blythe, California, excluding clerical employees,
guards, and supervisors as defined in the Act, constitute separate units
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
5. In accordance with our usual practice in seasonal operations of
this kind, we shall direct that separate elections be held at or about
the next approximate seasonal peak 6 on a date to be determined by
the Regional Director, among the employees in the several appropriate
units who are employed during the payroll period immediately pre-
ceding the date of issuance of the notices of election by the Regional
Director.7
[Text of Direction of Election omitted from publication in this
volume.]
6 This appears to occur in the latter part of May and June, during the melon pack.
7 See footnote 5, supra.
MURIEL H . REHRIG, D/B/A REHRIG-PACIFIC COMPANY ' and UNITED
BROTHERHOOD OF CARPENTERS AND: JOINERS OF AMERICA, WOOD-
WORKERS LOCAL 530, AFL. Case No. 21-CA-1053. May 19, 1952
Decision and Order
On October 12, 1951, 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 in violation of Section 8 (a) (1), 8 (a) (2), and 8 (a) (5) of
s The Respondent is designated in the complaint and other pleadings as Rehrig -Pacific
Company . The record , however, shows Muriel II . Rehrig, an individual doing business as
Rehrig-Pacific Company , to be the Respondent herein . We have -so amended all the formal
papers.
99 NLRB No. 34.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, and recommending that the Respondent cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report 2 attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
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].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and supporting brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the additions and modifications
set forth below. -
1. The Trial Examiner found, and we agree, that, by (a) Super-
visor Gildart's threat to employee Baca on about January 30 or 31,
1951, to shorten the-workweek if the Union successfully organized the
plant; (b) Gildart's interrogation of employees on February 2 -con-
cerning their union membership and sympathies; and (c) Plant
Manager Rehrig's promise to the employees on February 22 to establish
a profit-sharing plan if the employees repudiated the Union in the
Board election on the following day, the Respondent violated Section
8 (a) (1) of the Act. In addition the record shows, as the Trial Exam-
iner found, on the basis of Gildart's own testimony that, sometime
between February 2 and 4, Gildart told Baca and other employees that
he had a plan that would "benefit better the men in the plant, that we
could probably work out something maybe as good or better than
the union, and at the same time we would be in our own organization." 8
This statement contained a promise of benefit if the employees rejected
the Union and supported an "inside" organization. In these circum-
stances, we shall, despite the inadvertence of the Trial Examiner,
predicate our finding of a violation of Section 8 (a) (1) on this prom-
ise as well.
2. The Respondent gave impetus to the formation of an "inside"
union almost immediately after the Union's demand for recognition
on January 31, 1951. Early in February, Gildart sought to solicit
support among the employees for such an organization by the unlaw-
ful conduct described above. At about the same time Gildart also
suggested to the employees that they select representatives from their
ranks to meet with him for the purpose of discussing certain layoffs
2 The Respondent addressed its exceptions solely to the finding of 8 (a) (5).
3 It was Baca, not Gildart , as the Trial Exgipiner found , who testified that on the
occasion under discussion Gildart talked about beating the Union to the office. This
testimony , which we credit , was not disputed by Gildart.
REHRIG-PACIFIC COMPANY 165
contemplated by the Respondent and for the purpose of "starting
an organization ." Shortly before February 7, on company time and
property, the employees selected six or seven persons to represent them
in the meeting proposed by Gildart. On February 7, these employee
representatives met with Gildart in Plant Manager Rehrig's office.
Gildart told them of the Respondent's decision to lay off certain em-
ployees, and of the reasons therefor. Gildart also discussed with them
plans for "perfecting . . . an inside employees' representation
plan." Thereafter, in his preelection speech of February 22, Plant
Manager Rehrig suggested to the employees that they consult with
Gildart or Office Manager Kiser regarding the formation of an "in-
side'% union.
Early in March, following the defeat of the Union in the February
23 Board election, the Independent was formally organized 4 In an
election then called by Gildart, and conducted on company time and
property, the employees chose four persons employed by the Respond-
ent, including Gildart, to head the Independent 5 These four individ-
uals then decided among themselves upon the specific office in the
organization each was to hold; Gildart thus became the Independent's
treasurer. Thereafter, the Respondent delegated to the Independent's
officers control over the funds established by it to finance the pension
plan arrangement announced by Plant Manager Rehrig on the eve
of the election.
The Independent has no written constitution or bylaws. Member-
ship therein is confined to employees of the Respondent and is auto-
matic for those who have spent 90 days in the Respondent's employ;
it does not carry with it the obligation to pay membership dues. Since
the March election, the Independent has not held more than one general
membership meeting.
On the basis of all the foregoing, and for the reasons stated in the
Intermediate Report, we find; as the Trial Examiner did, that the
Respondent dominated and interfered with the formation and admin-
istration of the Independent, and contributed financial and other sup-
port thereto, in violation of Section 8 (a) (2) of the Act, and thereby
interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act.
'At the hearing Gildart admitted , as the record makes clear , that the Independent
came into being as the result of a reorganization of the committee of employee repre-
sentatives created at his instigation in February. Thus, Gildart testified that:
Some of them [ the employee representatives selected in February ] ^were leaving and
the formation of the original officers was getting broken up and one thing led to
another and the first thing we were having another committee [ viz., the Independent].
In a notice posted by Gildart on a plant blackboard prior to the election of officers
in the Independent , the employees were advised that the elected officers would "have
soniethisig to do with the representation plan [theretofore promoted by Gildart] by
which employees would be represented in an organization to bargain for them."
215233-53-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. We agree also with the Trial Examiner's finding that the Re-
spondent has refused to bargain with the Union within the meaning
of Section 8 (a) (5) of the Act.
On January 31, 1951, the Union, having been designated by a
majority of the employees in the appropriate unit described in- the
Intermediate Report, requested recognition by the Respondent. Plant
Manager Rehrig conceded that the Union represented a majority
of the Respondent's employees, but requested time in which to think
over the matter of granting it recognition. Three or four days later
the union representatives again contacted Rehrig, who told them that
he had not yet made up his mind and that he would like additional
time "to check into the matter." On February 5, the Respondent
asked the Union to prove its majority in a Board election. The
Union thereupon filed a representation petition with the Board. On
February 13, the Respondent gave its consent to an election, which was
held on February 23. The Union lost the election by a vote of 33 to 26,
with 2 ballots challenged. On February 28, the Union filed objections
to the-election, and on March 5, it filed the charge in this proceeding.
On May 24 the Regional Director issued a report in which he found
that Plant Manager Rehrig's preelection speech unlawfully interfered
with the election and he set the election aside. On June 20 the
Union withdrew its representation petition.
The Respondent admits that it refused to bargain with the Union,
but contends that it did not thereby violate the Act because (a) it had
a good faith doubt about the Union's majority status, and (b) it was
under no obligation to bargain with the Union because of the pendency
of a question concerning representation.
To support its claim of a bona fide doubt of the Union's majority
status, the Respondent points to the fact that on February 2 it was
advised by employee Maldonado that a majority of the Respondent's
employees had told him that they were opposed to the Union. This
incident, however, must be measured against the total congeries of
facts. Virtually simultaneously with the Union's initial request for
bargaining on January 31, the Respondent, while conceding the
Union's majority, embarked upon a course of conduct which was
plainly calculated to undermine the Union. Thus, on January 30 or
31, it threatened the employees with loss of work and wages if the
Union succeeded in organizing the plant. On the very day that Mal-
donado made his report, the Respondent conducted a survey of its
employees, interrogating them as to their desires as to union repre-
sentation. On February 3 or 4, after the Maldonado incident, when
the Union renewed its request for recognition, the Respondent ,did
not raise the majority issue. About this time, it promised benefits
to the employees if they rejected the Union and supported an "inside"
REHRIG-PACIFIC COMPANY 167
union. " The Respondent's request for an election on February 5 was
followed by the same pattern of conduct. • It proceeded to encourage
the selection of a number of employee representatives, who became
the nucleus of the Independent, and dealt with them on February 7
concerning employee layoffs. And on February 22, the eve of the
election , it made a promise of benefit to the employees, conditioned
on their rejection of the Union in the election, and again encouraged
the formation of an "inside" organization.
Viewed against this backdrop of conduct which we have found to
be violative of the Act, the Maldonado incident is devoid of any con-
trolling significance. The Respondent's threats of reprisal, promises
of benefit, and interrogation belie the Respondent's good faith argu-
ment and reveal, instead, that the Respondent, when it asked for time
to think over the matter of union recognition, was motivated by a
desire to gain time within which to undermine the Union and, avoid
its statutory duty to bargain.
We therefore find, as did the Trial Examiner, that the Respondent's
refusal to bargain on January 31, its request thereafter for a Board
election, and its agreement to a consent election were not motivated
by any good faith doubt of the Union's majority.6 We conclude there-
fore that the Respondent's refusal to bargain in violation of the Act
first occurred on January 31.
As already noted, at the instigation of the Respondent, the Union
filed a petition herein on February 5, 1951, 5 days after its initial
bargaining request. An election ensued which the Union lost and
this representation proceeding was still pending when the charge
alleging refusal to bargain was filed. The Respondent argues there-
from that this petition raised a question concerning representation
which precludes any finding of a refusal to bargain during the pend-
ency of the petition. We find no merit in the Respondent's position.
In the first place, as shown above, the refusal to bargain occurred on
January 31, antedating the filing of the petition by 5 days.7 The
petition clearly cannot be given retroactive effect. Secondly, assum-
ing that we were to reach the issue raised by the Respondent, it is
clear that there never existed any genuine question concerning repre-
sentation. Thus, the Respondent initially conceded the Union's ma-
jority status in the appropriate unit on January 31, and when it
challenged the Union's majority on February 5, it did so in bad faith,
as we have found. As the challenge to the Union's majority was made
• In view of the nature and timing of the Respondent 's unfair labor practice herein, this
case is plainly distinguishable from Chamberlain Corporation ; 75 NLRB 1118 , and Roanoke
Public Warehouse, 72 NLRB 1281, relied upon by the Respondent.
' Cf. Joy Silk Mills. Inc, 85 NLRB 1263, enfd. as mod 185 F. 2d 732 (C. A. D, C.) cert,
den. 341 U. S. 914 ; Everett Van Kleeck tt Company, Inc., 88 NLRB 785, enfd 189 F. 2d
516 (C. A. 2 ) ; D. H Holmes, Ltd , 81 NLRB 753 ; The M. H Davidson Company, 94
NLRB 142.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in bad faith, no genuine question concerning representation was raised
by that challenge.8 We therefore regard the election proceeding as
a nullity.9
On the basis of all the foregoing, and the entire record, we find, as
the Trial Examiner did, that since January 31, 1951, the Respondent
has refused to bargain with the Union, in violation of Section 8 (a)
(5) and 8 (a) (1) of the Act. Like the Trial Examiner, we shall
order it to bargain collectively with the Union upon request 1a
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 the Respondent, Muriel H. Rehrig, d/b/a
Rehrig-Pacific Company, Los Angeles, California, her agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Brotherhood
of Carpenters and Joiners of America, Woodworkers Local 530, AFL,
as the exclusive representative of her employees in the appropriate
unit as found in the Intermediate Report.
(b) Dominating and interfering with the formation or administra-
tion of, or contributing financial or other support to, Rehrig Employ-
ees Benefit Group, or any other labor organization of her employees.
(c) Recognizing Rehrig Employees Benefit Group, or any successor
thereto, as the representative of any of her employees for the purpose
of dealing with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment.
9 N L. R. B. v National Seal Corporation, 127 F. 2d 776 (C. A. 2) ; The M. H. Davidson
Company, supra ; Howell Chevrolet Company, 95 NLRB 410.
° The Respondent argues that a strong analogy exists between the facts of this case
and those in John Deere Plow Company, 82 NLRB 69. Relying on the fact that the
majority finding of 8 (a) (5) in the John Deere case was vacated by the Fifth Circuit
in 187 F.,2d 26, thereby agreeing with the dissent in the case , the Respondent contends
further that the Trial Examiner 's finding of 8 (a) (5) should be reversed on the authority
of the dissent in John Deere. However, as appears from the above facts, that holding
manifestly has no applicability here. Moreover , there are other distinguishing features
between this case and the cited case . Here, for example , unlike there , the Respondent
conceded the Union's majority status when recognition was requested of it. And in
this case the 8 (a) (5) is based on a claim made by the Union before any representation
election took place , and not, as in the John Deere case , on a new post -election majority
immediately following a representation election the validity of which was in dispute.
10 To the extent that the February 23 election showed a defection in the Union 's support,
it was, we find , attributable to the Respondent's unlawful conduct, and therefore cannot
serve to bar the usual remedial order issued in cases of this type. Joy Silk Mills , Inc., v.
N. L. R. B. supra.
REHRIG -PACIFIC COMPANY 169
(d) Giving effect to any and all arrangements or agreements with
Rehrig Employees Benefit Group.
(e) By means of interrogation, threats of reprisal, promises of
benefit, or in any other manner, interfering with, restraining, or co-
ercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist United Brotherhood of
Carpenters and Joiners of America, Woodworkers Local 530, AFL,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Brotherhood
of Carpenters and Joiners of America, Woodworkers Local 530,
AFL, as the exclusive representative of her employees in the appro-
priate unit as found in the Intermediate Report, and embody any
understanding reached in a signed agreement.
(b) Withdraw and withhold all recognition from, and completely
disestablish, Rehrig Employees Benefit Group, or any successor
thereof, as the representative of any of her employees for the purpose
of dealing with the Respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment.
(c) Post at her place of business in Los Angeles, California, copies
of the notice attached hereto, marked "Appendix A." 11 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being signed by the Respondent or her repre-
sentative, be posted by the Respondent immediately upon receipt
thereof and maintained by her for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees 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.
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
33 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."
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations.
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL bargain collectively, upon request, with UNITED BROTH-
ERHOOD OF CARPENTERS AND JOINERS OF AMERICA, WOODWORKERS
LOCAL 530, AFL, as the exclusive representative of all employees
in the bargaining unit described herein, with respect to rates of
pay, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is :
All production and maintenance employees, excluding of-
fice and clerical employees, guards, watchmen, professional
employees, and supervisors as defined in the Act.
I WILL NOT question my employees concerning their union mem-
bership, sympathies, or activities, threaten them with reprisals
for engaging in union activities, or penalize them because of their
union membership or activities.
I WILL NOT promise my employees benefits if they repudiate
United Brotherhood of Carpenters and Joiners of America,
Woodworkers Local 530, AFL, or support Rehrig Employees
Benefit Group.
I HEREBY DISESTABLISH Rehrig Employees Benefit Group as the
representative of any of my employees for the purpose of dealing
with me concerning grievances, labor disputes, wages, rates, of
pay, hours of employment, or other conditions of employment,
and I will not recognize it, or any successor thereto, for any of
the above purposes.
I WILL NOT dominate or interfere with the formation or admin-
istration of, or contribute financial or other support to, Rehrig
Employees Benefit Group, or any other labor organization of my
employees.
I WILL NOT give effect to any and all arrangements and agree-
ments with Rehrig Employees Benefit Group, or any successor
thereto.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist United Broth-
erhood of Carpenters and Joiners of America, Woodworkers
Local 530, AFL, or any other organization, to bargain collectively
REHRIG-PACIFIC COMPANY 171
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 or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of
the Act.
MURIEL H. REHRIG, doing business
under the firm name and style of
REHRIG-PACIFIC COMPANY,
Employer.
Dated ---------------- By -------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on March 5, 1951,1 by United Brotherhood of Car-
penters and Joiners of America, Woodworkers Local 530, 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 15, alleging that Muriel 11. Rehrig, doing business under the firm
name and style of Rehrig-Pacific Company, herein called the Respondent, had
engaged in , and was 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 complaint and the charge, together with notice of hearing
thereon, were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent (1) since on or about January 31, has failed and refused
to bargain collectively with the Union although the Union previously had been
designated and selected the exclusive collective bargaining representative by
the majority of the Respondent's employees in a certain appropriate unit; and
(2) on various dates in February, by means of certain stated acts and conduct,
interfered with, restrained, and coerced her employees in the exercise of the
rights guaranteed in Section 7 of the Act.
On June 26, the Respondent duly filed an answer admitting certain allegations
of the complaint but denying the commission of the unfair labor practices.
Pursuant to notice, a hearing was held on various dates between August 27 and
September 13, before the undersigned, the duly designated Trial Examiner. The
Respondent, the Union, and the General Counsel were represented by counsel.
On the third day of the hearing (August 29) the Union duly filed an amended
charge alleging that Rehrig Employees Benefit Group, herein called the Inde-
pendent, was existing in violation of the Act. On the same day (August 29) the
I Unless otherwise noted, all dates refer to 1951.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel served upon the Respondent copies of an amended charge and
amendment to complaint; served upon the Indepndent copies of the charge, the
amended charge, the complaint, and amendment to complaint ; and then moved
to amend the complaint to include an allegation that the Respondent formed and
dominated the Independent and interfered with its administration. The motion
to amend was granted over the objection of the Respondent's counsel.
On August 30, the Independent appeared by counsel who requested time to
serve and file an answer and to prepare for trial. The Respondent's counsel also
asked for time to file an answer to the complaint , as amended , and to prepare his
case to meet the new matter. The undersigned granted the said applications on
August 30, and continued the hearing until September 10. On the latter date
the hearing proceeded. All parties participated in the hearing and full oppor-
tunity was given them to, examine and cross-examine witnesses and to introduce
evidence pertinent to the issues. At the conclusion of the taking of the evidence,
the General Counsel moved to conform the pleadings to the proof with respect to
minor discrepancies. The motion was granted without objection. The under-
signed then advised the parties that they might file briefs with him on or before
September 24. A brief has been received from the Respondent which has been
carefully considered.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Muriel H. Rehrig, doing business under the firm name and style of Rehrig-
Pacific Company, has her plant and principal place of business in Los Angeles,
California, where she is engaged in the manufacture, sale, and distribution of
milk crates. The Respondent annually ships finished products valued at approxi-
mately $200,000 to points located outside the State of California.
The Respondent concedes , and the undersigned finds, that the Respondent is
engaged in commerce , within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Brotherhood of Carpenters and Joiners of America, Woodworkers Local
530, affiliated with American Federation of Labor, and Rehrig Employees Benefit
Group , are labor organizations admitting to membership employees of the Re-
spondent.
III. THE UNFAIR LABOR PRACTICES
A. Formation and domination of, interference with, and support of the
Independent; interference, restraint, and coercion
1. The pertinent facts
During the last week of January , the Union commenced an organizational
drive among the Respondent's employees which met with such a favorable
response that by the end of the month, 46 of the 75 production and maintenance
employees then in the Respondent's employ had signed cards expressly author-
izing the Union to represent them for the purposes of collective bargaining.,
On January 31 Nick Cordil and Robert McKinzie, two officials of the Union,
called upon Houston Rehrig, the Respondent's son and manager of the plant,
herein called Rehrig; informed him that the Union represented the majority
of the production and maintenance employees; proffered to him, for inspection
REHRIG-PACIFIC COMPANY 173
and verification, the aforesaid 46 signed authorization cards ; requested recogni-
tion of the Union as the collective bargaining agent for the Respondent's produc-
tion and maintenance employees ; and requested that collective bargaining
negotiations be commenced.
In response to the Union officials' statements and requests Rehrig stated,
according to Cordil's credited testimony, that he (Rehrig) had "met with some
of the employees and that he knew [the 1'lnion] represented a majority of the
employees," but desired a little time to think matters over before granting the
Union recognition?
On February 28 the Union filed objections to conduct affecting the outcome of
the matter, Cordil and McKinzie went to their offices where Cordil dictated a
letter advising the Respondent that the Union represented the majority of the
production and maintenance employees and requested that a meeting be held
at the Respondent's earliest convenience. The same afternoon (January 31)
McKinzie delivered the said letter to Lewis Kiser, the Respondent's son-in-law
and her office and production manager.
Several days later, Cordil, McKinzie, and two other officials of the Union
called upon Rehrig. After discussion had been had with respect to the Union's
demand for recognition and the wage scale contained in the contract which the
Union then had with a competitor of the Respondent, Rehrig requested and
received additional time in order, to quote Rehrig, "to check into the matter."
On February 5, after Rehrig was unable to reach McKinzie on the telephone,
he admittedly instructed a female clerk in the Respondent's office to telephone
McKinzie 's office "and tell them that we would like to have [a board] election
because it appeared to us to be some question about how the men felt in the
plant" with respect to being represented by the Union.
Pursuant to the aforesaid message, McKinzie, on February 5, filed with the
Board a representation petition. In accordance with the consent election agree-
ment entered into by and between the Respondent and the Union on February
13, and approved the same day by the Regional Director for the Twenty-first
Region, an election was conducted under the auspices of the said Regional Di-
rector on February 23, among the Respondent's production and maintenance
employees. The Union lost the election a
On February 28, the Union filed objections to conduct affecting the outcome of
election. In his report on objections, dated May 24, the Regional Director found
that the Respondent interfered with the employees' rights to a free and un-
trammeled election and ordered the election of February 23 set aside and the
results thereof voided.
While Rehrig was seeking and securing time "to check into the matter" of
recognizing and bargaining with the Union, he and the Respondent's other
managerial representatives were engaging in steps to destroy the Union's majority
status and thus thwart the Union's organizational plans. Thus, on either Jan-
uary 30 or 31, but in any event prior to Rehrig's January 31 meeting with Cordil
and McKinzie, Richard Gildart 4 called employee Edward Baca into his private
office and there interrogated Baca about his union activities and sympathies.
8 Rehrig testified that he declined the offer to inspect the signed cards and stated to
Cordil and McKinzie , "for the time being I would let the matter rest on the basis that
their statement was true, that the cards were signed and I wasn 't going to take issue with it."
Of the 61 valid ballots cast, 26 were cast for the Union , 33 against , and 2 were
challenged.
Variously referred to in the record as plant superintendent , plant supervisor, and
foreman . Contrary to Respondent 's contention, the undersigned finds that Gildart is a
supervisor within the meaning of the Act and therefore his proscribed conduct and
activities . as found herein , are attributable to the Respondent.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding this meeting, Baca testified, and the undersigned finds, that Gildart,
in the presence of former employee Edward I3inojosa, expressed surprise that
he, "of all people," was the person who brought the Union in the plant ; that in
response to Gildart's question, "if you are bringing [in] the Union how do you
know the company can stand something like this," he replied that he did not
know; that Gildart then retorted, he should have "come down and [found] out"
from Gildart ; that he replied, "to tilt the truth, I didn't bring it down to you
because it interfered (sic) with you asking whether the company could take it
or not. I just thought being the men want more money and they want the
Union, that now we have the chance we might still get the Union in"; and that
the interview concluded shortly after Gildart remarked. "you know, if the
Union does come in the company won't be able to operate every day, half the
men around here will have to work three days, and maybe the only ones working
the whole week will be the guys on the saws in order to get ahead enough work
so we can do it in those three days because the [other] men are faster" workers
than those working on the saws.
Regarding a conversation he had with Kiser on February 2, and regarding
certain other events which took place that day, employee Alfred Maldonado
testified, and the undersigned finds, as follows :
Q. Now, will you relate the conversation [with Kiser] ?
A.... I wanted to tell him (Kiser) that some of the boys in the shop
came up and told me that they didn't want to join the Union ... They told
me they wanted to see if we could get our own union. I didn't know much
about it and I went up to ask him what could be done to back these boys up.
Q. What did he say'?
A. He said, "you have to have a majority." I showed him a slip of paper
that I had written some names on and he said there wasn't enough to back
me up. I went out to the shook department, the wood department, and
asked some of the boys there and all agreed to back me up on it. I put their
names down and I had about---1 am not sure, but I think I had about 35 or 40
of them. Then I went back and showed him the paper and ,he said that
was enough.
Kiser testified, and the undersigned finds, thalvMaldonado told him on February
'2, "he had a group of fellows who did not want the Union; some of whom had
signed cards, some hadn't . . . [and] there was a lot of confusion" among the
employees; that he told Maldonado "I had called the National Labor Relations
Board asking them to send me information on the percentage of representation,
and so forth. . . According to them (NLRB), as I understood it, any group
they represented had to have a majority"; that Maldonado said, "I have this
list" ; that he glanced at the list and after noting it contained only about 20 or
25 names, he said to Maldonado, "I don't think there is much you can do. You
don't have a majority" ; that Maldonado then left his office, but returned "in a
few minutes or in a short period" and said he had secured additional names to the
list, adding that the names of the majority of the employees were on the list ; that
after he looked at the list he remarked to Maldonado, "It looks to me like they
are all in your handwriting" to which Maldonado replied, "well, I just asked
them and jotted them down. These aren't any signatures, this is just what they
have told me"; that Maldonado left his office after he said, "Well, I will check,
I will talk to Mr. Rehrig about it"; that as Maldonado was leaving his office
Gildart entered and he told Gildart about his conversation with Maldonado and
requested Gildart to verify the accuracy of Maldonado's assertions; and that
REHRIG-PACIFIC COMPANY 175
Gildart left the office, returned shortly, stated that he had contacted everyone in
the plant, and the majority of the employees were not in favor of the Union.
Gildart testified, and the undersigned finds, that after Kiser told him about the
latter's talk with Maldonado. hc• went into the plant and asked the various
employees if they "wanted the union or didn't want it"; that as soon as "35 or
so" employees had informed him that they were not in favor of the Union, he
determined that the majority of the employees were against the Union ; and that
immediately after reaching this decision he advised Kiser thereof.
Gildart further testified, and the undersigned finds, that about a month prior
to the Union's campaign to organize the Respondent's employees, he spoke sep-
arately to Rehrig, Kiser, Maldonado, and certain unnamed employees about "a
plan" to form a "bargaining organization among the employees" for the purpose
of dealing with the Respondent with respect to, among other things, paid holidays,
a hospital plan, and a profit-sharing plan in order to "have something that we
could all benefit by and have [as] our own, instead of dealing with anyone else" ;
that sometime in the latter part of January or early in February, at his sugges-
tion, the employees selected from among themselves, on company time and
property, six or seven persons to represent the various plant departments ; that on
or about February 7, he met with aforesaid selected representatives and discussed
with them the contemplated layoff of seven employees; and that the said seven
employees were laid off on February J.
About 3 or 4 days after the afore-mentioned January 30 or 31 talk between
Baca and Gildart, the latter told Baca, Coffey, and Telke 6 to quote Gildart's
testimony, which the undersigned credits :
. . . that I had a plan that I thought would benefit better the men in
the plant, that we could probably work out something maybe as good or
better than the union, and at the same time we would be in our own organi-
zation. We would not have to deal or have anything to do with anyone
else, and we could determine our own activity.
Gildart further testified, and the undersigned finds, that during the aforesaid
conversation he stated that if the employees selected "the ones that you want"
and "tell me when you are ready . we can beat" the Union "to the office."
Sometime between the filing of the representation petition on February 5,
and the execution of the consent election agreement on February 13, Rehrig be-
cause, as be testified, of the terrific drop in production and for the additional
reason that he had been informed by an employee that "the men in the plant
were scared to death of me, they felt I was going to do something terrible to
them because of this fact that these cards had been signed, that a lot of them
were going to lose their jobs and there was just all kinds of rumors running rife
through the plant," he assembled the employees and told them, in substance,
that the employees had the absolute right to join or refrain from joining the
Union, and that the employees' union activities would not be interfered with.
On February 22 Rehrig assembled the employees, reminded them of the Board
election to be held the following day, told them to vote either for or against the
Union as they saw fit, that "McKinzie and his organization were a very high
type of men, that they would represent [you] properly and that [you have]
nothing to fear from them," that if the employees selected the Union as their
representative he would deal with it as such, and that the employees' jobs would
not be in jeopardy if the Union won the election.
After Rehrig made the aforesaid remarks, Telke asked Rehrig, "What about
this profit-sharing plan we have been talking about? :Pell the fellows something
Gildart testified that he believed Hinojosa also was present.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about that ." ° Thereupon , Rehrig outlined to the employees "an incentive plan
on a profit-sharing basis whereby the company would take 25 percent of the profits
and that this money would be used in a fund set up on a basis that would be
approved by the government." Rehrig then explained that he did not believe
that the entire 25 percent could be paid directly to the men because of certain
governmental restrictions placed on wages, adding that the money which could
not.be paid directly to the men would be put Into a pension fund for the benefit
of the employees.
After Rehrig had concluded the aforesaid remarks, Te]ke asked, "Would that
profit-sharing plan be put into effect if we vote for the Union?" to which Rehrig
replied, to quote Rehrig's testimony :
I don't know exactly the words I used, but they were to the effect that un-
doubtedly it couldn't be put into effect that way, that there would have to
be changes made in it and I couldn't foresee what the final result would be.
I can't remember the words, but it was enough to make it clear that very
likely the final result wouldn't be the same.
Regarding Rehrig's remarks about the establishment of the profit-sharing plan
if the Union was successful at the polls, Telke testified that Rehrig said in sub-
stance "it wasn't up to him, it [would be] out of his hands, or something like
that" ; Kiser testified that Rehrig, after shrugging his shoulders and tossing
"his hands aside," stated, in substance, "that would be hardly one that he could
answer, that it wouldn't exactly be solely in his hands" ; Gildart testified that
Rehrig remarked, after shrugging his, shoulders and half smiling, "it would be
up to the men, or something to that effect. More or less, 'it is up to you fellows,'
was the term he used" ; Baca testified that Rehrig stated, "No, you won't"; em-
ployee Frank Marquez testified that Rehrig said that the profit-sharing plan
would not be established if the Union won the election because the employees
then "would be entirely on their own" ; and employee Domingo Delgado testified
that Rehrig remarked, "if the Union wins, you are on your own, boys." It Is
thus clear, and the undersigned finds, that Rehrig's evasive reply to Telke's
question, suggestive of a negative reply, was to the effect that the Respondent
would not put into operation the proposed profit-sharing plan if the- employees
did not repudiate the Union at the polls.
The undersigned also finds that Rehrig, in his February 22 speech, suggested
that the employees consult with Kiser or with Gildart regarding "the formation
of an inside Union." 7
6 Admittedly, the only persons connected with the Respondent with whom Rehrig
discussed the possibility of instituting a profit-sharing plan were Kiser, Gildart, and Telke
and that the discussions with Gildart and Telke took place in December 1950.
7 Rehrig was not questioned regarding this phase of his speech even though Gildart had
previously testified as follows :
Q. Going back again briefly to Rehrig's speech the day before the election, do you
remember Mr. Rehrig stating in the speech, suggesting to the employees that they
get together and contact either Mr. Kiser or yourself in connection with the forma-
tion of an inside Union?
A. I believe be mentioned something like that, yes.
Trial Examiner MYERS : What'is your-best recollection?
The WITNESS : Well, it was mentioned.
Trial Examiner MYERS : By Mr. Rehrig?
The WITNESS : Yes.
And Delgado had previously testified that Rebrig stated during the course of the said
speech, "you should not be afraid or hesitate to call on Mr . Kiser or Mr. Gildart to go and
forma some kind of a company . . . [ I am] willing to try the bonus and give [you] a try
on it to form a company of [your] own ; to get a committee of four persons, that it was
better for [you] to get together, instead of a Union , because [you are] on [ your] own."
REHRIG-PACIFIC COMPANY 177
Gildart testified, and the undersigned finds, that early in March, the Independ-
ent was formed and, among other things, the Independent was to deal with the
Respondent respecting personnel problems ; that its formation came about after
he had "Sent out word" and placed on the plant's blackboard a notice that the
employees should select, from among themselves, four persons to head this new
organization ; that the employees selected Maldonado, Carlos Taylor, Hinojosa,
and himself ; that the said four named individuals then selected Taylor, presi-
dent, Maldonado, vice president, Hinojosa, secretary, and himself, treasurer;
that membership in the Independent, which is restricted to employees of the
Respondent, is automatic after a person, other than a clerical employee, had
been in the Respondent's employ for 90 days ; that the Independent has no con-
stitution, no bylaws, nor is a member thereof obligated to pay dues ; that the
Independent had but one general membership meeting since its inception ; that
the aforesaid March election was held on company time and property ; and that
the Independent controls that portion of the profit-sharing plan which is not
paid'directly to the employees but which is deposited in a bank e
2. Concluding findings
It is evident from the credible evidence, as epitomized above, that the Respond-
ent permitted the Independent to hold its election and conduct some of its
business on company time and property ; that members thereof were paid by the
Respondent for the time spent by them while so engaged ; that the Respondent
controls the administration of the Independent through Gildart's membership
and official position herein and through the retention in her employ of its officers
because she could unseat any elected officer by discharging him, for the em-
ployees are limited in their choice of officers; that no employee is eligible to
become a member of the Independent until he had been in the Respondent's
employ for at least 90 days ; and that the officers of the Independent were
elected by four persons and not by its members. Finally, since there is no pro-
vision for dues or other form of self-financing, the Respondent is in a position
to assure domination over the Independent by subsidizing it. This she has
already done when she permitted the employees to engage in business of the
Independent on company property and when she paid them for the time so con-
sumed . The entire record indicates, and the undersigned finds, that the In-
dependent exists and functions only through the Respondent's control, participa-
tion, financial support, and sufferance. In short, the Independent was formed
and is being used by the Respondent as a substitute for collective bargaining
and, as such, is a device which has been repeatedly and consistently held by the
Board and the courts to be an unlawful form of labor organization
The undersigned also finds that the Respondent formed, dominated, and inter-
fered with the administration of the Independent, and contributed financial aid
and other support to it in violation of Section 8 (a) (2) of the Act, thereby inter-
fering with, restraining, and coercing her employees in the exercise of the rights
guaranteed in Section 7 thereof.
6 The profit-sharing plan has been in existence since about March 15. However, no
moneys were deposited in the bank until about May or June. The deposited moneys are
the basis of a pension fund.
9 See N. L. R. B. v. Newport News Shipbuilding & Drydock Co., 308 U. S. 241 ; N. L. R. B.
v. Baldwin Locomotive Works, 128 F. 2d 39 (C. A. 3) ; Bethlehem Steel Co. v. N. L. R. B.,
120 F. 2d 641 (App. D. C.) ; Westinghouse Electric & Mfg. v. N. L. R. B., 112 F. 2d 657
(C. A. 2) ; Budd Mfg Co. Y. N. L. R. B., 138 F. 2d 86 (C. A. 6) ; and N. L. R. B. v. Rath
Packing Co., 123 F. 2d 684 (C. A. 8).
i
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned further finds that (1) by Gildart's threat to Baca on 'or
about January 30 or 31, to shorten the employees' workweek if the Union success-
fully organized the plant; 10 (2) by Gildart's interrogation of the employees re-
garding their union membership and sympathies;" and (3) by Rehrig's promise
on February 22, to establish a profit-sharing plan for the employees provided.
the employees repudiated the Union at the polls on February 23,12 the Respondent
interfered with, restrained, and coerced her employees in violation of Section S
(a) (1) of the Act. The fact that in his two speeches to the employees prior to.
the election, Rehrig informed the employees that they might, without fear of
discrimination or other reprisal, vote for the Union and that in case the Union
won the election he would, bargain collectively with it, did not expunge, the,
effects of Gildart's previous coercive statements and conduct nor his own sub-
sequent promises of benefit if the Union lost the election.
B. The refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged that all the production and maintenance employees of
the Respondent, excluding office and clerical employees, watchmen, guards,
professional employees, and supervisors as defined by the Act, constitute a unit
appropriate for the purposes of collective bargaining. The answer of the,
Respondent neither admitted nor denied the aforesaid allegation. Under the
circumstances, and upon the record as a whole, the undersigned finds that all the
production and maintenance employees of the Respondent, excluding office and
clerical employees, watchmen, guards, professional employees, and supervisors.
as defined' by the Act, at all times material herein constituted, and now constitute,
a unit appropriate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act, with respect to grievances, rates of pay, wages,
hours of employment, and other conditions of employment, and that the said
unit insures to the Respondent's employees the full benefit of their right to
self-organization and collective bargaining and otherwise 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 the Respondent containing the names of all the Respondent's
employees in-the unit hereinabove found appropriate. The list shows that on
January 31, 1951, the Respondent had in her employ 75 persons in the said-unit.
On behalf of the General Counsel there were offered in evidence 46 signed cards
10 See H. J. Heinz V. N. L. R. B., 311 U. S. 514 ; *Medo Photo Supply Corp V. N. L. R. B ,
321 U S 678; N. L. R. B v. Vermont American Furniture Corp., 182 F. 2d 842.
U See H. J. Heinz V. N. L. R. B., supra; N. L. It. B. V. Minnesota Mining & Manufactur-
ing Co, 179 F. 2d 323 (C. A. 8); N. L. It. B. V. National Products Co., 175 F. 2d1 755
(C. A. 4) ; N. L. R B. v. Sewell Mfg. Co., 172 F. 2d 459 (C. A. 5) ; Joy Salk Molts, Inc. v.
N. L. R. B., 185 F. 2d 732 (C. A. D. C.).
19 See N. L. R. B v. Wytheville Knotting Mills, Inc., 175 F 2d 238 (C. A 3) ; N. L. R. B
v Jahn & Other Engraving Co., 123 F. 2d 589 (C. A 7) ; N. L. R B. V. Crown Can Com-
pany, 138 F. 2d 263 (C. A. 8). The fact that Rehrig had the profit-sharing plan under
consideration for several months prior to the announcement is irrelevant. The fact
remains that the plan was announced on the eve of the election The time chosen by
Rehrig to advertise his bounty could only have been intended by him to prevent, as the
court said in N. L. R. B. v. Christian Board of Publication , 113 F. 2d 678, 681, the
"attempts of [the], outside labor organization to appeal to its employees. . .11. See
also Gate City Cotton Mills, 70 NLRB 238, affd. 167 F. 2d 647 (C. A. 5) ; Minnesota
Mining & Mfg. Co., 81 NLRB 557, affd. 179 F. 2d 323 (C. A. 8)
REHRIG-PACIFIC COMPANY 179-
expressly authorizing the Union to represent the signers thereof for collective
bargaining. The said cards were' then submitted to Respondent's counsel for
examination and to permit him to compare the signatures thereon with the Re-_
spondent's records. After inspection and comparison, Respondent's counsel
stated on the record, "the signatures on the cards are [the] signatures of the,
persons who have signed other documents in ItheI possession of" the Respond-
enta The cards were then received in evidence without objection.
The undersigned has compared the names appearing on the cards with the list
submitted by the Respondent and received in evidence and finds that as of
January 31, 1951, 46 employees in the appropriate unit signed cards designating
the Union as their collective bargaining representative. The undersigned ac-_
cordingly finds that on January 31, 1951, and at all times thereafter, the Union
was the duly designated collective bargaining representative of the Respondent's
employees in the unit found appropriate. Pursuant to Section 9 (a) of the Act,
the Union was, therefore, the exclusive representative of all the employees in
such unit for the purposes of collective bargaining in respect to grievances, rites
of pay. wages, hours of employment, and other conditions of employment.
In support of its contention that the Union did not represent an uncoereed
majority at all times after 3'anuary 31, the Respondent points to the fact that
Maldonado submitted to Kiser on February 2, a list which appeared to contain the
names of some 35 or 40 employees. Assuming, arguestdo, that "some 35 or 40"-
employees had in fact authorized Maldonado to place their names on the list and
had told him that they did not desire to be represented by the Union, that fact,_
standing alone, does not rebut or refute the positive evidence that 46 of the then
75 employees had, on January 31, authorized the Union to represent them.
3. The refusal to bargain
Uncontroverted evidence establishes that as of January 31, when the Union
attempted to negotiate with the Respondent on behalf of the production and
maintenance employees, the Union was, in fact, the designated representative.
of the majority of the said employees for the purposes of collective bargaining.
Under these circumstances, the Respondent's refusal to recognize the Union,
was a clear violation of Section 8 (a) (5) of the Act, unless the Respondent at.
that time had a bona fide doubt that the Union represented the majority.
The Respondent's conduct immediately before and following the Union's request
for collective bargaining fully reveals the Respondent's want of good faith.
Rehrig's and Gildart's actions in embarking upon a campaign to destroy em-,
ployee support for the Union through means proscribed by the Act demonstrates
that the refusal to bargain and Rehrig's request for time to consider the demands
of the Union and Rehrig's later request for a Board election were not based upon
any desire to resolve a bona fide doubt of the Union's majority. Normally, the
Board does not hold an employer in violation of the Act if he in good faith,
questions the union's majority status, and asks to have the matter determined by
an election, since that is a conclusive means of establishing the extent of a
union's strength. But as here the Respondent's resort to unfair labor practices,
the gravity of which cannot be minimized, reveals, in unmistakable clarity, that
the Respondent's insistence upon an election was not seriously motivated, but
was actuated by a desire to obtain time within which to dissipate the Union's
unquestioned majority, an end which was accomplished when the Union lost the
election, the Respondent thereby destroyed the efficacy of the very method it
had insisted upon by its refusal to recognize and deal with the Union. The Re-
is Respondent's counsel conceded that the card signed Rafael Barron Ruiz td be the card
of employee Rafael Barron Ruiz de Velasco
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's conduct on and after January 31, thus clearly supports a finding that
Rehrig's request for an election was solely for the purpose of delay and to
permit an effectual destruction of the Union's majority. Under these circum- -
stances, the Respondent "has trangressed the bounds of permissible conduct to
a sufficient extent to permit [a conclusion] that [her] refusal to bargain was ill-
intentioned as [her] other actions.""
Upon the entire record in the case, the undersigned finds that on January 31,
1951, and at all times thereafter, the Respondent failed and refused to bargain
collectively with the Union as the duly designated representative of a majority
of her employees in the unit hereinabove found appropriate in violation of Sec-
tion 8 (a) (5) of the Act, thereby interfering with, restraining, and coercing
her employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the 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 the Respondent has engaged in unfair labor practices,
violative of Section 8 (a) (1), (2), and (5) of the Act, it will be recommended
that she cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent formed, dominated, interfered with the
administration of and contributed financial and other support to, the Independ-
ent, the undersigned will recommend, because the existence of the Independent
and its recognition of it by the Respondent constitute a continuing obstacle to
the employees' rights guaranteed by the Act, that the Respondent withdraw and
withhold all recognition from the Independent as the representative of any of the
Respondent's employees for the purpose of dealing with the Respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employment and
other conditions of employment, and to completely disestablish it as such
representative.
Having found that the Respondent agreed to permit the Independent to admin-
ister a certain portion of the funds derived from the profit-sharing plan estab-
lished by the Respondent for the employees' benefit, which arrangement is one of
the means whereby the Respondent has utilized the unlawfully formed, domi-
nated, and supported Independent to frustrate self-organization and to defeat
genuine collective bargaining by the employees, the undersigned will recommend
that the Respondent cease and desist from giving effect to said arrangement or
to any like arrangement. Nothing herein shall be taken to require the Respond-
ent to vary the terms of the profit-sharing plan hereto established by the
Respondent.
Having found that the Respondent has refused to bargain collectively with the
Union as the representative of the majority of the employees in an appropriate
14 Joy Silk Mills, Inc. V . N. L. R. B ., 185 F. 2d 732, 734 (C. A. D. C.). See also Frank
Bros. v. N. L. R. B., 321 F. 2d 702; N. L. R. B. v. Consolidated Machine Tool Co., Inc.,
163 F. 2d 373 (C. A. 2) ; N. L. R. B. v. Federbush Co., Inc., 121 F. 2d 954 (C. A. 2) ;
N. L. R. B . v. Morris P. Kirk & Son, 151 F. 2d 490 ( C. A. 9).
REHRIG-PACIFIC COMPANY 181
unit, the undersigned will recommend that the Respondent, upon request, bargain
collectively with the Union as the exclusive statutory representative of all the
employees in the unit herein found appropriate, and if an agreement is reached,
embody such understanding in a signed agreement.
The scope of the Respondent's illegal conduct discloses a purpose to defeat
self-organization among its employees. It sought to coerce them in the exercise
of the rights guaranteed them by the Act by, among other things, refusing to
bargain collectively with the statutory representative of its employees and by
forming, dominating, and interfering with the administration of the Independent.
Such conduct, which is specifically violative of Section 8 (a) (1), (2), and (5) of
the Act, reflects a determination generally to interfere with, coerce, and restrain
its employees in the exercise of the right to self-organization, to form, join, or
assist labor organizations to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, and presents a ready and effective
mans, of destroying self-organization among its employees. Because of the
Respondent's unlawful conduct and since there appears to be an underlying
attitude of opposition on the part of the Respondent to the purposes of the Act
which is to protect the rights of employees generally," the undersigned is con-
vinced that if the Respondent is not restrained from committing such conduct,
the danger of their commission in the future is to be anticipated from the Re-
spondent's past conduct, and the policies of the Act thereby will be defeated.
In order, therefore, to make effective the interdependent guarantees of Section 7
of the Act, to prevent a recurrence of unfair labor practices, and thereby minimize
industrial strife which burdens and obstructs commerce, and thus effectuate the
policies, the undersigned will recommend that the Respondent cease and desist
from in any manner infringing upon the rights guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, Woodworkers
Local 530, affiliated with American Federation of Labor, and Rehrig Employees
Benefit Group, are labor organizations, within the meaning of Section 2 (5) of
the Act.
2. All the Respondent's production and maintenance employees, excluding
office and clerical employees, watchmen, guards, professional employees, and
supervisors as defined by the Act, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the Act.
3. United Brotherhood of Carpenters and Joiners of America, Woodworkers
Local 530, affiliated with American Federation of Labor, was on January 31,
1951, and at all times thereafter has been, the exclusive representative of all
the employees in such unit for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
4. By refusing on January 31, 1951, and thereafter, to bargain collectively
with United Brotherhood of Carpenters and Joiners of America, Woodworkers
Local 530, affiliated with American Federation of Labor, as the exclusive repre-
sentative of all the employees in the appropriate unit the Respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (a)
(5) of the Act.
16 See May Department Stores v. N. L. B. B., 326 U. S. 376.
215233-53-13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By the said refusal the Respondent interfered with, restrained, and coerced
her employees in the exercise of the rights guaranteed in Section 7 of the Act,
and thereby engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (a) (1) of the Act.
6. By forming, dominating, and interfering with the administration of the
Rehrig Employees Benefit Group, and by contributing financial and other support
to it, the Respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (2) of the Act.
7. By interrogating her employees regarding their union memberships and
sympathies, by threatening the employees with reprisal if they became or re-
mained members of the Union, by promising benefits if the employees repudiated
the Union, and by otherwise interfering with, restraining, and coercing her, em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in, and is engaging in, unfair labor practices, within 'the
meaning of Section 8 (a) (1) of the Act.'
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from' publication in this volume.]
MID-CONTINENT PETROLEUM ` CORPORATION and TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION No. 144, A. F. L.
Case No. 35-CA--81: `May 19,195-2
Decision and Order
STATEMENT OF THE CASE
Upon a charge filed on July 9, 1951, by Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union No. 144, A. F. L., herein
called the Union, the General Counsel of the National Labor Relations
Board, herein called respectively the General Counsel and the Board,
by the Regional Director for the Ninth ,Region (Cincinnati, Ohio),
issued a complaint dated February 13, 1952, against Mid-Continent
Petroleum Corporation, herein called the Respondent, alleging that
the Respondent had engaged in and was 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, herein called the Act. . Copies of the charge, com-
plaint, and notice of hearing, were duly served upon the Respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance that the Respondent (1) on and since May 14, 1951, has
continuously failed and refused to bargain with the Union, and has
withdrawn recognition from the Union, as the exclusive representa-
tive of its employees in an appropriate unit, although the Union
99 NLRB No. 40.