Wells, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1946

68 N.L.R.B. 545 (N.L.R.B. 1946)

In the Matter of WELLS, INC. and INTERNATIONAL ASSOCIATION OF
MACHINISTS
Case No. 20-C-1306.-Decided June 12, 1946
DECISION
AND
ORDER
On October 17, 1945, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and recom-
mending 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 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief, and the entire record in the case , and hereby
adopts the findings, conclusions, and recommendations of the Trial Ex-
aminer, except insofar as they are inconsistent with our findings and
order hereinafter set forth.
1. We agree with the conclusion of the Trial Examiner that the re-
spondent descriminated in regard to the hire and tenure of employment
of Foreman Benton and thereby discouraged membership in the Union
in violation of Section 8 (3) of the Act.
It is the respondent's contention that Foreman Benton was discharged,
following his request either for a raise or for a demotion to the position
of an ordinary mechanic, because demotion of a foreman to a non-super-
visory status "has never been satisfactory" ; such employees would "not
take orders and subject themselves to disciplinary action by the new fore-
man" as would other employees." It is our opinion, and we find, that
the respondent merely used this situation as a pretext for terminating
'At the hearing , when Superintendent Divine was questioned about the reason for his
refusal to demote Benton , he testified : "I have run shops since 1930 and I have tried demoting
several foremen to mechanics and they won ' t concentrate on the work . They are constantly
criticizing , and for that reason I didn't want to try Jack Benton as an ordinary mechanic."
68 N L. R. B, No 78.
545
546 DECISIONS OF NAUIONAt, LABOR RELATIONS BOARD
Benton's employment in order to discourage union membership. At the
outset, it must be observed that Superintendent Divine's original reaction
to Benton's alternative request for demotion was not unfavorable. In
fact, Divine and Benton even explored the possibility of Benton's going
to work as a mechanic on the night shift where they had "a little bit of
trouble." Benton made his request for a raise or , in the alternative, for
demotion, sometime in the latter part of December 1944 or the first
of January, 1945 at which time he was told by Superintendent Divine :
"I think everything can be arranged and don't worry." Benton heard
nothing more about the matter until January 31, when he was summarily
discharged at the end of the work day, without any advance notice. It
was then that Divine for the first time advanced the alleged impracti-
cability of demotion as a reason for the denial of Benton's request.2
Benton's services both as a mechanic and as a foreman were entirely
satisfactory. The discharge took place prior to- V-J Day at a time when
there was a manpower shortage prevailing throughout the country, and
when, as Benton testified without contradiction, the respondent "didn't
have the qualified men." Under thc-e circu.,stances it is highly signifi-
cant that the respondent not only fa;!(, I to gra,-t Benton's request for
demotion, but did not give him an opportunity to remain as foreman at
the same salary. Plainly, the language of Benton's request for a raise or
demotion could not be construed as an ultimatum that he was unwilling
to continue as a foreman at-the same salary if neither request were
granted.3 Nor does the final conversation between Benton and Super-
intendent Divine indicate that Divine had placed such a construction on
Benton's requests. Divine told Benton that he was "relieved" of his
foreman's duties and that he could not work as a mec'anic. In response
to Benton's query, "In other words you mean that I am fired?", Divine
replied, "If you look at it that way, yes."
The respondent's hostility to the Union and its desire to frustrate
organizational activities of the Union among its rank and file employees
furnish a reasonable explanation for its discharge of Benton. Its hos-
tility to the Union is reflected throughout the record. Through its officials,
the respondent prevented the union representative from collecting union
dues in the shop during non-working time ; questioned employees con-
cerning their union membership and activities, made disparaging remarks
concerning the Union in the presence of rank and file employees; threat-
2 Superintendent Divine, in effect, testified that Foreman Benton came to him about January
25 and asked him if it was possible to get more money and if not that he would like to be
relieved of the foreman's job and given a job as a mechanic. Divine, however, testified that
the January 25 conversation was the first and only conversation he had with Benton and that
he informed Benton at that time that he "didn' t want him as a mechanic ." To the extent
that Divine's testimony conflicts with that of Benton, it is not credited.
3 Foreman Benton testified that he said to Superintendent Divine , " . I wondered if I
could get some more money If that wasn't satisfactory, I wondered if he could get ai?other
fireman and give me a job back as a mechanic "
WELLS, INC 547
ened to remove its operations to Salt Lake City rather than to submit
to any of the demands of the Union in the proposed contract; !nd finally,
engaged in dilatory tactics during the collective bargaining negotiations.
The respondent's officials were fully aware of Benton's membership and
interest in the Union. Indeed, W. E. Wells, the respondent's president,
observed at one of the collective bargaining conferences that "Benton
was responsible for his employees belonging to the Union" and "wishing
to be represented by it." That a discharge of an active adherent of a
union under circumstances which suggest no motivation other than hos-
tility to the union, operates as a warning to all employees of the danger
attached to adherence to the union, and hence generally discourages
union membership, cannot be denied. We conclude that the respondent
discharged Benton because of its manifest hostility to the Union and its
desire to discourage membership therein by his discharge.
The fact that Benton was a supervisory employee does not relieve
the respondent of its statutory obligation not to engage in discriminating
conduct to discharge membership in the Union.4 We have held on prior
occasions that the prohibition of Section 8 (3) of the Act extends to
any discriminatory discharge which is intended, or the purpose and effect
of which is, to discourage membership in a labor organization,5 and the
existence of a justifiable cause for discharge is immaterial if it was not
in fact the motivating cause for the discharge.
Upon the entire record we find that the respondent discriminated in
regard to the hire and tenure of Benton's employment and thereby dis-
couraged membership in the Union of its rank and file employees.
2. The Trial Examiner found that on December 22, 1945, when the
respondent refused to bargain with the Union, the Union represented
a majority of employees in the appropriate unit, and that the respondent's
refusal to bargain violated Section 8 (5) of the Act. Under the cir-
4 We are not confronted with the question of whether Benton's discharge would have been
justified if the respondent had discharged him because his activities in behalf of a rank and
file union were unlawful or to protect the respondent ' s neutrality It did not assign such
activities as a reason for his discharge at the time it occurred Nor did the respondent claim
in its pleadings or its evidence that it had discharged him for this reason . During the oral
argument before the Trial Examiner , the respondent 's counsel urged for the first time that to
have permitted Benton to continue in its employ would have compromised its neutrality and
subjected it to unfair labor practice charges. This was an obvious afterthought and not the
reason for the discharge . We are not concerned with the question of whether a reason existed
which could have been the basis of a non - discriminatory discharge . The issue here , as in all
cases under Section 8 (3), is whether the real reason for the discharge was to discourage
membership in a labor organization.
5 Matter of Air Associates, Inc, 20 N L R B 356, 375, enf'd as mod 121 F ( 2') 586
(C C. A 2); Matter of Skinner & Kennedy Stationery Company, 13 N L R B 1186, enf'd
113 F. (2d) 667 (C C A 8), where we found that the discharge of Foreman Eckert reflected
"an intention on the part of the employer to discourage its employees from aligning themselves
with the Union " Cf. Matter of Reliance Manufacturing Company, 60 N L. R B 946, where
we found that a constructive discharge of a forelady because she refused to aid her employer in
an anti -union campaign discouraged "non-supervisory employees " membership in the Union;
Matter of Vail Manufacturing Company , 61 N L. R B 181, Matter of Climax Engineering
Company, 66 N L. R. B. 1359
696966-46-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances disclosed by the record, we cannot agree with the finding that
the Unio* represented a majority and accordingly must dismiss the al-
legation of the complaint that respondent violated Section 8 (5) of the
Act.
The Trial Examiner's finding as to the Union's majority representa-
tion is based on authorization cards signed by five out of eight employees
in the appropriate unit, and upon the employees' petition of December
18, 1944, which was signed by seven employees in the unit, designating
the Union as the exclusive bargaining representative. While ordinarily we
could recognize the designation by authorization cards as valid, we note
that in the instant case the record shows that at the time these authori-
zation cards were procured by the Union, Foreman Benton, who was in
charge in the respondent's shop at Reno with the authority to hire and
discharge, was actively engaged in union activities as a steward and
trustee and influenced some of his subordinates to become members of
the Union.6 Although the authorization cards were secured by Union
Representative McKay rather than by Benton, and Benton's actual sol ci-
tation was apparently limited to a few employees, the unit is very small
and it is impossible to determine the extent to which Foreman Benton's
activities and solicitation were responsible for any employee's decision
to join the Union, and hence for the Union's paper majority. Since
the Union's majority was procured with the direct and open assistance
of a supervisory employee, it cannot be said to represent the free and
untrammeled will of the employees and hence cannot be recognized as
valid majority.?
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Wells, Inc., Reno, Nevada,
and its officers, agents, or successors and assigns, shall :
Benton testified:
Q. You told these employees the Union was a good thing, they should join?
A. (Benton) I never told them they should join We had a Union. If they wanted to
join it , it was up to them, they were not forced.
Q What did you tell them?
A We haA a Union Most of them came in for the cure , if you know what I mean They
didn't join the Union, they didn't stay long enough . I didn't ask 90 percent to join They
didn't have money to join
Q. The other 10 percent you did ask to join?
A Yes, and they joined. "
Q You figured that your duty as a steward or trustee was to get the men in the Union?
A. The job of the steward is take up trouble with the Union between them and the agree-
ment with the Company.
I We refused to grant a petition in a representation case and direct an election where the
record disclosed that the petitioning labor organization relied, in support of its claim of a
substantial representation upon authorization cards secured with the assistance of a supervisory
employee Matter of The Toledo Stamping & Manufacturing Company, 55 N. L. R. B. 865;
cf. N L. R B v Dadourian Export Corporation, 138 F. (2d) 981 (C. C. A 2)
WELLS, INC. 549
1. Cease and desist from:
(a) Discouraging membership in International Association of Ma-
chinists, or any other labor organization, by discharging or refusing
to reinstate any of its employees, or by discriminating in any other
manner in regard to their hire and tenure of employment;
(b) Threatening employees with economic reprisal because of their
activities on behalf of the above-named or any other labor organization ;
(c) Interrogating employees concerning their membership or other
activities in or on behalf of the above-named or any other labor or-
ganization ;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Jack Benton immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to his
seniority or other rights and privileges;
(b) Make whole Jack Benton for any loss of earnings he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount he normally
would have earned as wages from the date of his discharge to the date
of the respondent's offer of reinstatement, less his net earnings during
such period;
(c) Post at its plant at Reno, Nevada, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Twentieth Region, shall, after being
duly signed by the respondent's representative, be posted by the re-
spondent immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able 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 Twentieth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent refused to bargain collec-
tively with the Union as the exclusive bargaining representative of its
employees in an appropriate unit.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. GERARD D. REILLY, dissenting:
For the reasons hereinafter stated, I cannot accept the conclusion of
the majority that the respondent discharged Foreman Benton because of
its desire to discourage union membership and activities of its rank
and file employees, and that the discharge was violative of Section 8 (3)
of the Act.
That Benton 's discharge was not intended to discourage membership
in the rank and file Union appears from the uncontroverted evidence
showing that another foreman , who had authority to hire and discharge
and who was a member of the same Union, was not discriminated
against. Also, Benton 's successor , at the time of his promotion to Ben-
ton's position, was a member of the same Union and his membership in
the Union must have been known to the respondent . The respondent's
hostility towards the Union, as shown by anti -union statements of its
officials, also cannot provide a reasonable basis for the inference drawn
by the majority . It was not so strong as to prevent them from entering
into a collective bargaining agreement with the Union for the respondent's
Luning division . The same officials entered into another collective bar-
gaining agreement with the Union in behalf of one of the respondent's
affiliates. The respondent also operated its Reno division , which is in-
volved in this proceeding , under a collective bargaining agreement with
the Teamsters ' Union covering its line drivers. Nor do I believe that
the circumstance that Benton received no warning not to engage in his
unlawful activities , or that he was denied his request for demotion,
or was not permitted to remain in his position at a normal salary, betrays
an intent to discourage membership in the rank and file Union . What it
might, indicate is that the respondent intended to discourage any activities
in behalf of the rank and file Union by another foreman . But even
assuming that indirectly Benton 's discharge might have discouraged
union membership and activities by removing from its ranks its most
active member and also by discouraging membership in the Union by
foremen , it still does not follow that the respondent could not terminate
Benton's activities by discharging him, for, as it will be shown, they
were activities proscribed by the Act.
While the record does not support the conclusion of the majority that
Foreman Benton 's discharge was due to discriminatory reasons, it fur-
nishes ample support for the conclusion that, under the circumstances
disclosed by the record, Benton's activities in behalf of the rank and
file Union were activities prescribed by the Act, and that his discharge,
therefore, was not violative of the Act. Since April 1943, and until his
discharge on January 31, 1945 , Benton was employed by the respondent
as foreman in charge of its Reno shop As such foreman, Benton directed
and assigned work of "every man ... in the shop." At the hearing, the
parties stipulated that Benton had authority to hire and discharge his
WELLS, INC. 551
subordinates, that he had exercised that authority_ and excluded him
from the bargaining unit. Of his union membership and activities the
record discloses that Benton joined the Union in October 1943 and did
not relinquish his membership in the Union upon his promotion to the
position of foreman. At the time of his discharge, Benton was one of
the trustees of the union local and the union shop steward. He openly
wore his union button at work most of the time. Benton also admitted
that he talked to his subordinates about the Union and asked some of
them to join the Union, and that he didn't ask the other employees to
join because they didn't have money to join.8 Finally, Benton, was one
of the first to sign the employees' petition of December 18, 1944, designat-
ing the Union as their bargaining representative.
That Benton's activities in behalf of the rank and file Union are
proscribed by the Act is clear.9 They had a tendency to coerce the rank
and file employees under his supervision in the exercise of their right
to self-organization. As a management representative, Benton possessed
a power to hire, promote, discharge, or alter the terms and conditions of
their employment. Conscious of that power, these employees would nor-
mally be reluctant to refuse his suggestions to join the Union. Since
Benton's activities constituted interference with the free choice of the
respondent's employees, the respondent was bound to terminate Benton's
activities in behalf of the rank and file union in any manner it deemed
appropriate. Nor was there anything optional about this course of con-
duct. The respondent was under an affirmative duty to terminate coercive
activities of its representative interfering with the employees' freedom to
self-organization. And this is exactly what the respondent did.10 Such
being the case, the respondent's motives for terminating Benton's un-
lawful activities by a discharge become entirely irrelevant. So long as
the employer was doing only what the Act commanded him to do, i.e.,
to refrain from coercing his employees in the exercise of their right to
self-organization, either directly or through his agents, the actual moti-
vation for his conduct is beside the point.1'
8 See footnote 6 in the majority opinion.
9 Had Benton's activities been in furtherance of self-organization and collective bargaining
emong supervisory employees, they would have been protected activities under the recent decisions
of the Board Benton, however, was engaged in activities in furtherance of organization of
rank and file employees Since Benton was a part of the management his conduct was attributable
to 11.8 employer when it interfered with the rights of the rank and file employees to sell-
organization and coliective bargaining (Cf Matter of Soss Manufacturing Company, et a' , 56
N L R. B 348, Matter of American Steel Foundries, 67 N. L. R. B 27 )
10 The record is clear that Benton's membership and activities in behalf of the rank and
file union were known to the respondent's officials prior to his discharge . Indeed, at the
December 22, 1944, collective bargaining conference respondent 's President Wells told the
union representatives that it was Benton who "was responsible for [the respondent's] employees
being members of the Union and wishing to be represented by it."
11 While I agree with the majority that Benton's supervisory status did not relieve the re-
spondent from its obligation not to discourage by discrimination the membership in the rank and
file union, the cases cited by the majority are distinguishable from the situation in the instant
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor is the -circumstance that Benton was never warned against en-
gaging in activities in behalf of the rank and file union an indication
that Benton's discharge was due to discriminatory motives and effected
the respondent's right to discharge Benton . In my dissent in the Ameri-
can Steel Foundries casein I had an occasion to deal with this particular
question. I have pointed out in that case :
The Act imposes upon an employer a duty to refrain from in-
terference in, or domination of, a labor organization of its employees
and we have, since the beginning of our enforcement of the Act,
imputed to the employers the responsibility for acts violative of this
duty committed by supervisors. Such a "company policy" we have
therefore found to be inherent in every employer's labor policy, re-
quiring no promulgation, publication or explanation.
It is for this reason that Foreman Benton must have presumed to
know that his activities in behalf of the rank and file union were un-
lawful, jeopardized the neutrality of his employer and were in violation
of his duties to the employer. No warning, therefore, was necessary
to put Benton on notice that his conduct was both unlawful and dis-
loyal to his employer.
Moreover, the respondent could have terminated Benton's activities
-in behalf of the rank and file union by discharging him also because
they compromised its neutrality The record shows that there was a
jurisdictional dispute between the Union and its rival, the Teamsters'
Union, both of whom claimed jurisdiction over the respondent's em-
ployees in certain classifications and that the respondent was informed
by a representative of the Teamsters' Union that the respondent "will
get into trouble if [it] negotiated with the Machinists ... [in behalf of
the disputed classifications]." Under these circumstances, it was perfectly
natural for the respondent to accept the advice of its counsel and take
measures for the protection of its neutrality thereby forestalling the
probability of filing unfair labor charges.13 As the Board pointed out
in the Soss case "the right under the Act of supervisors to protection in
their organizational and other concerted activities is not an unqualified
one, but is subordinate to organizational rights and freedom of rank and
case in that there the employer had discriminated against the supervisory employee because of
his refusal to comply with the employer' s unlawful demand , such for instance , as a demand to
assist the employer in h's anti-union campaign (Matter of Reliance Manufacturtnq Company, 60
N. L. R B 946, and Matter of Vail Manufacturing Company, 61 N L R B. 181) or to relin-
quish supervisory employee's membership in the rank and file union, where such membership
was retained for purposes of pension rights or transfer privileges (Matter of Climax Engineering
Company, 66 N L. R B 1159) In the instant case , no such unlawful request was made by the
respondent Quite to the contrary, in terminating Benton's activities , the respondent only acted
in compliance with the mandate of the Act
12 67 N. L. R B. 27.
19 Cf. Matter of Som Manufacturing Comhanv et al, supra; Matter of Climax Engineering
Company, supra; Matter of American Steel Foundries, supra.
WELLS, INC. 553
file employees , and to need of employer to maintain his neutrality."
Since Benton has engaged in activities in behalf of the rank and file
union in his capacity as a management representative , and since his
activities were not protected by the Act, the respondent was at liberty
to take any steps for the protection of its neutrality it alone deemed
appropriate. The other alternative suggested by the majority in Matter
of Climax Engineering Co. case, i. e., the scrutiny of the employer's con-
duct for the purpose of finding whether the measures taken from the
preservation of his neutrality were or were not "appropriate measures,"
would be unjustified and constitute an unwarranted encroachment upon
the prerogatives of the management.
The majority contends that we do not have to deal with the question
as to whether Foreman Benton's discharge could be justified for the rea-
son that his activities in behalf of the rank and file union were unlawful,
since the respondent neither assigned to Benton, nor claimed either in
the pleading or in its evidence that it discharged him for that reason.
I disagree. The respondent's counsel did raise this question in his brief
to the Board, in which he questioned the soundness of the Trial Ex-
aminer's conclusion in the following words: "We cannot believe that an
employer cannot discharge or discipline an executive or foreman par-
ticipating and soliciting union membership." The counsel also asserted
in his brief that such activities of a foreman would have subjected the
respondent to the charges of unfair labor practices. During the oral
argument before the Trial Examiner and in its brief to the Trial Ex-
aminer, the counsel for the respondent also argued that to have per-
mitted Benton to remain in its employ, after it became aware that Benton
was soliciting for the Union, would have comprised its neutrality and
caused it to be liable for unfair labor practices. Counsel for the re-
spondent also stated during the oral argument that he did so advise
President Wells before Benton's discharge. Regardless, however, of the
fact whether or not the issue was properly raised by the respondent,
I am convinced that the majority opened it for a determination by re-
jecting the respondent's explanation for Benton's discharge and by
imparting to the respondent a discriminatory motive in discharging Ben-
ton. Nor am I prepared to concede that it is the duty of an employer under
all circumstances to disclose to the discharged employee the reason for
his discharge.
Under broad implications of the decision reached by the majority, the
principle of imputation to the employer of responsibility for the acts
and statements of supervisory employees cannot longer prevail, if fore-
men are free to engage in activities in behalf of a rank and file union.
By protecting the supervisory employees , who have authority to hire,
discharge, and otherwise effect the tenure and conditions of employment,
5154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in their activities in behalf of the rank and file union, the majority has
also impaired the basic principle, essential for the preservation of em-
ployees' freedom to join a labor organization or select their bargaining
representative of their choice.
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, we hereby notify our employees that :
We will not discourage membership in International Association
of Machinists , or any other labor organization, by discharging of
refusing to reinstate any of our employees , or by discriminating
in any other manner in regard to their hire or tenure of employment
or any term or condition of employment.
We will not threaten our employees with economic reprisal be-
cause of their activities on behalf of the above-named or any other
labor organization.
We will not interrogate our employees concerning their member-
ship or other activities in or on behalf of the above -named or any
other labor organization.
We will offer to Jack Benton immediate and full reinstatement to
his former or a substantially equivalent position without prejudice
to any seniority or other rights and privileges previously enjoyed,
and make him whole for any loss of pay suffered as a result of the
discrimination.
We will not in any manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization, to
join or assist the above-named 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.
All our employees are free to become or remain members of the In-
ternational Association of Machinists , or any other labor organization.
WELLS, INC,
Employer.
By ....................
(Representative ) (Title)
Dated ........................
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced , or covered by any other material.
WELLS, INC.
INTERMEDIATE REPORT
Mr Wallace E Royster, for the Board
Mr Louis H. Callister, of Salt Lake City, Utah, for the respondent.
Mr K C. Apperson, of Oakland , Calif., for the Union.
STATEMENT OF THE CASE
555
Upon a first amended charge duly filed on August 9, 1945, by International Asso-
ciation of Machinists, affiliated with the American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Twentieth Region (San Francisco, California),
issued its complaint on August 9, 1945, against Wells, Inc., Reno, Nevada, 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 (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint and the first amended
charge, together with notice of hearing thereon, were duly served upon the re-
spondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent (1) on or about May 16, 1944, and at all time thereafter,
and specifically on October 5 and December 22, 1944, refused to bargain collec-
tively with the Union as the exclusive representative of its employees in a
certain appropriate unit, although a majority of its employees in the said unit
had designated the Union as their representative for such purpose; (2) during
December 1944 and January 1945, (a) disparaged the Union, (b) ordered its
employees to refrain from discussing the Union in the shop, (c) discriminatorily
refused to allow a representative of the Union upon its premises, (d) threatened
to move its plant from Reno, Nevada, to Salt Lake City, Utah, ( e) questioned
its employees with respect to their membership in the Union, and (f ) ridiculed one
of its employees for wearing a union button; (3) on January 31, 1945, discharged
Jack Benton, and thereafter refused to reinstate him, because of his membership
and activity in behalf of the Union; and (4) by the foregoing acts and conduct,
interfered with, restrained, and coerced its employees in the rights guaranteed in
Section 7 of the Act
The answer duly filed by the respondent on August 20, 1945, admitted all the
allegations of the complaint pertaining to the corporate existence of the respondent
and the nature, character, and extent of the business transacted by it and certain
other factual matters, but denied the commission of unfair labor practices.
Pursuant to notice, a hearing was held on August 24 and 25, 1945, at Reno,
Nevada, before the undersigned Trial Examiner, Howard Myers, duly designated
by the Chief Trial Examiner. The Board and the respondent were represented by
counsel; the Union by a representative. All parties participated in the hearing and
were afforded full opportunity to be heard , to examine and cross -examine witnesses,
and to introduce evidence bearing upon the issues. At the conclusion of the hearing,
Board's counsel moved to conform the pleadings to the proof with respect to
minor matters , such as correction of typographical errors, misspelling , and the like.
The motion was granted without objection. Oral argument, in which counsel for
the Board and for the respondent participated , was heard at the conclusion of
the taking of the evidence and is part of the record. A brief was filed by the
respondent.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Wells, Inc, a Nevada corporation, has its principal office and place of business
in Reno, Nevada,l where it is engaged in the transportation of freight between
the States of Nevada and California. During the 12-month period ending June 30,
1945, the respondent transported 194,577 tons of freight, 72.8 percent of which was
transported in interstate commerce.
The respondent concedes that during all the times material herein, it was, and
still is, engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, affiliated with the American Federation
of Labor, is a labor organization admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
At the hearing, the parties stipulated, and the undersigned finds, that all me-
chanics, mechanic helpers, and mechanic apprentices employed by the respondent
at its Reno, Nevada, shop, excluding grease men and all supervisory employees
with authority to hire, promote, discharge, or effectively recommend such action,
constitute a unit for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
The parties at the hearing stipulated that eight named persons whose names
appear on the respondent's pay roll of December 15, 1944, should be included in
the unit as coming within the above description.2 Board's counsel maintained that,
in addition to these eight, E. S. Casinella, C. H. McBride, and R H. Wilson should
also be included in the unit. The respondent contended that they should be excluded
The credible evidence clearly shows that on December 15, 1944, Casinella was and
at all times thereafter has been, a foreman with authority to hire and discharge
and that he exercised that authority on various occasions. Regarding McBride
and Wilson, Jack Benton, their foreman and Union's shop steward, testified, and
the undersigned finds, that McBride, during all the times material herein, was a
blacksmith's helper and that he did very little mechanical work, and that 70 to 80
percent of Wilson's time was devoted exclusively to mechanical work. Under the
circumstances, the undersigned finds that Wilson should be included in the unit
and McBride and Casinella excluded.
i The respondent also operates plants at Luning , Nevada, and at Elko, Nevada. The em-
ployees of these plants , however, are not involved in the proceeding herein.
7 Namely, A. B. Gandrud , G. W. Hollenback , C. Haverland , Oran Ellie, Ralph Mudge,
E. F. Statts, S. E. Tower, and Albert McFadden. The December 15, 1944, pay roll was agreed
upon because it became evident at the hearing that the refusal to bargain took place on
December 22 , 1944, if at all. It was also stipulated by the parties that the persons whose
names appeared on the December 15, 1944 , pay roll and who were in the appropriate unit,
were still in the respondent ' s employ on December 22, 1944.
WELLS, INC.
2. Representation by the Union of a
majority in the appropriate unit
557
A list prepared by the respondent, and introduced in evidence by Board's counsel,
contains the names of all the persons in the respondent's employ on December 15,
1944, in the unit hereinabove found appropriate. The parties stipulated at the
hearing, and the undersigned finds, that these persons were still in the respondent's
employ and were performing the same work on December 22, 1944. On behalf
of the Board there were offered and received in evidence 11 signed cards expressly
authorizing the Union to represent the signers for collective bargaining. The
authenticity of the signatures on the cards was not challenged.
The undersigned has compared the names appearing on the cards with the list
submitted by the respondent and received in evidence as a Board exhibit and finds
that, as of December 15, 1944, five employees in the appropriate unit had, on that
date, signed cards designating the Union as their collective bargaining representa-
tive 3 Furthermore, there was also received in evidence a petition, dated December
18, 1944, reading as follows :
TO WHOM IT MAY CONCERN
We the undersigned, employees of Wells, Inc., Reno, Nevada, do hereby
authorize the International Association of Machinists A. F of L. Local 801,
known as the Machinists Union, to act as our sole bargaining agent in all
matters pertaining to wages and working conditions.
This petition bears the signatures of seven persons in the appropriate unit. The
authenticity of these signatures was not questioned.' The undersigned accordingly
finds that on December 15, 1944, and at all times thereafter, the Union was the
duly designated collective bargaining representative of the respondent's employees
in the unit found to be 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 rates of pay, hours of
employment, and other conditions of employment.
3. The refusal to bargain
On May 16, 1944, after T. E. McShane and Glen Anderson , representatives of the
Union, and J. W. Wells, the respondent 's president , had concluded the execution of
a collective bargaining contract covering the employees of Wells Cargo , Inc., a
corporation owned and operated by the stockholders and officers of the respondent,
McShane requested Wells to enter into a similar contract covering the respondent's
Reno employees . After a brief discussion of the provisions of the contract , during
which discussion Wells stated that the respondent would be unable to pay the
wages granted the Wells Cargo, Inc., employees ,5 and that the unit was not
appropriate , the parties agreed to meet and confer at a later date. Before the
meeting concluded , however, McShane pointed out to Wells that the unit sought
a Three signed authorizations on June 3, and two on October 4, 1944.
This petition was offered in evidence by the respondent.
The plant of Wells Cargo , Inc., is located at Las Vegas, Nevada.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Reno employees was the same unit agreed to in the contract just
executed.6
On August 8, 1944, McShane sent the following letter to Wells at his Las Vegas
offices :
This communication serves as notice that Lodge #801, International
Association of Machinists, Reno, Nevada represents the Mechanics employed
by you in both of your Reno shops, and hereby request that you meet with
our Representatives for the purpose of negotiating an agreement between your
Company and Lodge #801, covering the employees performing work coming
under the jurisdiction of the International Association of Machinists.
All of the above mentioned employees are represented by Lodge #801 and
we will submit proof of this representation at the first meeting with you.
I was informed by Mr. Howard Wells, of your Company that you would
not be in Reno for some time to come, but that your duties would require
your presence in Las Vegas, and suggested that I contact you in regards to
this matter, as you are the only one who has authority to decide matters of
this kind.
I talked to some of your mechanics and it is my opinion that it will be to the
best interests of all concerned to have this agreement signed as soon as possible
In view of your inability to come to Reno, I will meet you in Las Vegas,
at your earliest convenience, if you can meet me Monday or Tuesday of next
week at Las Vegas, advise by mail, to T. E McShane, 1115 Sierra St., Reno,
Nevada, c/p George E. McKay, Secretary Lodge #801, I. A. of M.
The respondent did not answer this letter. Wells testified at the hearing that he
did not see the letter until his return from his vacation sometime in September
In the latter part of September, McShane and George McKay, the financial
secretary and business agent of the Union's Reno, Nevada, local, called upon
Howard Wells, and his brother, Robert, the respondent's vice-president and secre-
tary respectively. There McShane presented to the Wells brothers a copy of the
Wells Cargo, Inc., contract and stated that the Union would like to enter into
a similar contract covering the respondent's Reno employees The meeting con-
cluded when one of the Wells brothers stated that his brother, J. W. Wells, was
the only one with authority to negotiate a collective bargaining contract and that
McShane should see him
On October 4, McShane and Anderson again met with J. W Wells at the
offices of Wells Cargo, Inc. There McShane presented Wells with a copy of the
Wells Cargo, Inc, contract and again asked him to enter into a similar contract
for the respondent's Reno employees. McShane also presented Wells with authoriza-
tions signed by the respondent's Reno employees designating the Union as the
collective bargaining representative. After reading the authorizations, Wells
stated, "Hell, you've got everyone on there but me." After some discussion, Wells
stated that he was agreeable to all the provisions of the proposed contract except
the provision respecting overtime rates and that since the respondent's operations
came under the jurisdiction of the Interstate Commerce Commission the respondent
6 Sections A and B of Article I of the Wells Cargo, Inc. read as follows.
Section A
The Company recognizes the Union as the sole collective bargaining agency for all em-
ployees performing we-k which comes under the jurisdiction of the I. A. of M.
Section B-Machinists Jurisdiction
The Company recognizes the jurisdiction of the Machinists as that contained in the
Constitution of the International Association of Machinsts , effective April 1, 1942, between
pages V and X, inclusive.
WELLS, INC. 559
need not, and would not, pay overtime rates for work performed over 40 hours per
week McShane then showed Wells certain signed contracts which the Union had
with other trucking companies in the vicinity of the respondent ' s shop wherein
the companies contracted to pay overtime rates for all work performed over 40
hours per week. After reading these contracts , Wells stated , to quote the credible
testimony of McShane , "Well, the boys in Reno are going to have to operate
that business I am not going to tie them up to any conditions without them being
in on the deal . I will meet you in Reno in about ten days and at that time in com-
pany with Bob and Howard we will resume negotiations " McShane then told Wells
that the unit sought by the Union consisted of all the persons "doing mechanical
work in the body shop as mechanics" and that the Union was willing to change
the "Machinist Diesel specialist" classification , to which Wells had objected, to
"automotive machinist." Wells, while not specifically agreeing to the suggested
change, stated that he would discuss the change with McShane at a later meeting
At the conclusion of the meeting , McShane went to Reno to await word from
J W. Wells . Not hearing from him, McShane , on October 30, 1944, telegraphed
him as follows:
IMPORTANT THAT YOU MEET ME HERE AT ONCE. WIRE WHEN
YOU CAN BE HERE.
Several days later , Wells replied:
YOU PROMISED AT LEAST TEN DAYS NOTICE BEFORE MEETING
IMPOSSIBLE TO GET AWAY FOR AT LEAST TWO WEEKS WILL
BE IN INYOKERN SALT LAKE CITY AND DENVER IN THE
MEANTIME WILL CONTACT YOU WHEN AVAILABLE.
Upon the receipt of Wells' telegram, McShane telegraphed the Conciliation
Service of the United States Department of Labor requesting that a conciliator
be sent for the purpose of adjusting the matter between the Union and the
respondent. On or about November 8, a conciliator conferred separately with the
parties but nothing was accomplished. On December 22, a conciliator met with
the parties and, according to McShane's credible testimony, the following tran-
spired at that meeting :
Q. Will you give us your recollection of these conversations?
A. Mr. Curtin, Commissioner Curtin informed the Wells the purpose
of calling them and discussion started between Mr. Joe Wells and myself,
and I don't recall the discussion word by word, but the things that were dis-
cussed was at that time that Mr. Wells then brought up the question "Do you
represent the people?"
We again referred to the authorizations from their employees and Mr. Wells,
after studying a while, said, "Well, I guess I will go ahead and negotiate."
Which we proceeded to do. However, after discussing, I would say failing to
agree on various articles that he had agreed to in Las Vegas, Mr. Wells, at this
December 22nd meeting, demanded that we submit a new agreement with an
open shop clause and without the overtime clause where it applied to 40 hours
and 8 hours per day, and also the rate of pay, and at that time he asked me
again what unit we petitioned for, and at that time I told him that we still
petitioned for the same unit that we had told him about in Las Vegas on
October 5th, which would be mechanics, automotive machinists, and welders,
the helpers of all classifications, and all the employees in the body shop that
were doing mechanical work we considered were all of the employees.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did Mr. Howard Wells or Mr. Joe Wells or any of the Messrs. Wells
who were present make any comment about that unit?
A. Sometime shortly after the meeting started, Mr. Howard Wells got up
and left the room. He was gone for a period of time, I do not know the
exact period that he was gone for, but in a little while he came back into the
room and called Mr. Joe Wells out of the room, and Mr. Joe Wells went out
of the room and they were gone possibly a half hour, maybe not that long.
They were gone quite a little while and during their absence Mr. Curtin got up
and walked the floor and said he thought that was a little unusual, he couldn't
imagine what they were doing, one thing and another. He seemed to be a little
dissatisfied about being put on the spot there.
MR. CALLISTER (Respondent's Counsel). Just state the conversation.
By MR. ROYSTER (Board' s Counsel) :
Q. Just what occurred in the presence of the Wells?
A. Mr. Joe Wells came back and said that they had been out and talked
to their employees. They found out that some of them didn't wish the Union
to represent them and that they would not at that time recognize us as repre-
senting his employees, but would demand an election before they would go any
further.
Trial Examiner MYERS. Then what happened?
The WITNESS. The argument broke out over again , the Commissioner who was
conducting the case stated that he thought the authorizations looked authentic
and I think he suggested, in fact I know he suggested that they continue with
the negotiations, that the actions of the Wells brothers in going out and talking
to their employees at that time was rather unbecoming and he suggested that
we continue with the negotiations. The Wells brothers refused to do so and
at that time they brought up the question of Jack Benton again. Their con-
tention was that Jack Benton was a foreman. The Union's contention was that
Jack Benton was a mechanic by the fact that while he did do some of his
duties which were of a supervisory nature, that the majority of the duties per-
formed by Jack Benton were that of a journeyman mechanic and he worked
with the tools the majority of his time.
The Wells stood on their contention that he was a supervisory employee
and did not belong in the Union. One discussion brought on another one and
Joe Wells made the statement that Jack Benton was responsible for his em-
ployees belonging to the Union, that during the lunch hour he talked it to all
the employees, talked Union to the employees during the lunch hour and that
Mr. Benton was a first class foreman, he did a good job for them and that
his work was satisfactory in every way but he still felt that he was the one
that was responsible for their employees being members of the Union and
wishing to be represented by it.
Q. Was there anything in any of the conversations about Salt Lake City?
A. Mr. Wells stated at one time -
Q. (Interposing) Which Mr. Wells was this?
A. Mr. Joe Wells.
Q. All right.
A. Mr. Joe Wells stated that before that they would submit to any of the
conditions that we asked for that he would move his operation to Salt Lake
City.
Q. Do you have any present recollection of anything else that occurred at
this meeting?
A. At this time I can't recall anything further that transpired at that meeting.
WELLS, INC. 561
It s apparent from the foregoing facts that the Union on May 16, 1944, and
on several occasions thereafter, requested the respondent to bargain collectively. It
is equally apparent that the respondent each time sought to postpone negotiations,
and on December 22, 1944, admittedly refused to recognize the Union as the
exclusive collective bargaining representative of the respondent's employees. The
Act requires an employer to bargain, upon request, with the representative desig-
nated by a majority of his employees, unless, as the Board and the Courts have
held, the employer in good faith questions the appropriateness of the claimed unit
or the majority status of the representative, and the representative, upon request,
fails satisfactorily to show by some reasonable method that it represents a majority
of the employees in the appropriate unit. But if the claimed representative in fact
represents a majority of the employees in the appropriate unit, the employer has
the burden of proving that he raised the question in good faith and that the repre-
sentative failed to show its majority status. This burden the respondent has failed
to discharge. The facts, on the other hand, indicate bad faith on its part. The Union
submitted proof of its majority status to J. W. Wells, who exclaimed upon exam-
ining it, "Hell, you've got everybody on there except me" Although the respondent
at several of the conferences appeared to be advancing bona fide doubts as to the
appropriateness of the unit, the undersigned cannot consider those conferences as
isolated instances but must regard them in relation to all other factors in the case.
Consideration of the sequence of events in the preceding paragraphs when viewed
against the background of anti-union statements and activities, as set forth herein,
leads the undersigned to conclude that the respondent followed a plan calculated
to eliminate the Union as the collective bargaining representative of the employees
The undersigned is satisfied from the events occurring up to and including January
31, 1945, the date when, as found below, Jack Benton was discriminatorily dis-
charged, that the respondent, on May 16, 1944, and thereafter had no genuine
intention of recognizing or dealing with the Union, but instead sought to thwart the
Union's organizational plans. The undersigned further finds that the respondent's
questioning of the appropriateness of the unit was not advanced in good faith,
but was used to delay the Union's recognition as the collective bargaining repre-
sentative of the respondent's employees. Upon the entire record in the case, the
undersigned finds that on December 22, 1944, and at all times thereafter, the
respondent refused to bargain collectively with the Union as the representative of
the respondent's employees in the appropriate unit and thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Interference, restraint, and coercion,
the discriminatory discharge of Jack Benton
Benton was first employed by the respondent as a mechanic on August 17, 1942,
at a salary of $250 per month. About the middle of April 1943, he was promoted
to foreman and his salary was raised to $325 per month. About 6 or 8 months
thereafter his salary was raised to $350 per month. On January 1, 1945, his salary
was raised to $375 per month.
About the beginning of December 1944, H. B. Divine became shop superintendent.
Upon assuming his duties as superintendent, Divine was introduced to Benton by
Howard Wells who told Divine, in Benton's presence, that Benton has been "co-
operating" with Robert Wells "100 per cent."
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime in January 1945, Benton approached Divine and the following con-
versation between them ensued, according to the credible testimony of Benton:?
Well, I told him [Divine] that I would like to talk to him about the fore-
man job. I said, "There's mechanics getting $350 a month and I am getting $375
a month, and I am on call 24 hours a day. I take the dirtiest part of the road
work on the mountain, I never put the dirty one off and take the good ones"
And I said, "I wonder if you get me a little more money There is not enough
difference between the mechanics and myself. I come down here and get held
up and work overtime and they work 8 hours a day, six days a week, for
$350, and I work 6 days a week and overtime and I just get $25 more than
they do and I wondered if I could get some more money." If that wasn't satis-
factory, I wondered if he could get another foreman and give me a job back
as a mechanic. In fact, we had talked about just indirectly of me going back
to night shift. We were having quite a little bit of trouble and fellows,
we didn't have the qualified men, and he said, "Well I will see what I can do "
And he said, "I think everything can be arranged and don't worry "
Divine made no effort to obtain an increase in salary for Benton. Instead he dis-
charged Benton on January 31 At the time of Benton's discharge the following
took place, according to Benton's credible testimony :8
* * * Mr. Divine called me to one side and I walked over, and he said to
me, he said, "Well, Jack, I guess you will be relieved of your shop foreman
duties." And I said, "Why, that is just fine " I said, "It wasn't worth it
anyway. The mechanic job is the best." And I said, "What shift do you want
me to work?" And he said, "Well, I don't think it would work out, Jack,
if I put you on another shift as a mechanic I have worked in shops and I have
run men and I have seen it tried and it hasn't worked" And he said, "I don't
think it would work out."
I says, "Well, I worked for Mr. Richer 9 and I think I can work for you."
And he said, "Well, I don't think it would." 4Lnd I said, "It other words, you
mean that I am fired?" And he said, "If you look at it that way, yes." And I
said, "Thank you." That is all there was.
Benton was one of the most active members of the Union. He was one of its
trustees and a shop steward. His membership and activity were well known to
the respondent. According to the undenied and credible testimony of McShane,
J. W. Wells said at the December 22 meeting that Benton was a first class foreman,
that he did a good job for the respondent. that his work was satisfactory in every
way, but that Benton "was the one that was responsible for [the] employees being
members of the Union and wishing to be represented by it "Io Furthermore, Robert
Wells, in a conversation with Benton in December 1944, which was held in the
presence of the, other employees on the day shift, said, according to Benton's un-
denied and credible testimony, "Unions were lousy, Unions would keep a good
man down and promote a sorry man." On another occasion in December 1944,
Robert Wells asked Benton what that yellow thing was on his sweater adding,
"Did a bird fly over you?" Benton replied, "No, it's a Union button, the men
r Divine's version of what was said during this conversation is substantially the same as
Benton's.
" Divine's version of this conversation is likewise substantially the Same as Benton's.
Richer was the superintendent whom Divine replaced Benton worked as mechanic and as
10 At no time was Benton requested by any official of the respondent to discontinue his
union membership or activity because of his supervisory status
foreman under Richer.
WELLS, INC. 563
wear them." The respondent's antipathy for the Union is also clearly shown by
Robert Wells' action in ordering George McKay out of the shop in December 1944,
when the latter went there to collect dues from the employees during lunch hour.
This treatment of McKay was, according to the undenied and credible evidence,
directly opposite to that afforded representatives of other unions when they went
into the shop to collect dues.
During oral argument at the end of the hearing, and in its brief, respondent urged
that to have permitted Benton to remain in its employ after it became aware that
Benton was soliciting for the Union, would have compromised its neutrality and
caused it to be liable for unfair labor practices. But it is clear from the evidence
that this was not the motivating factor which led to Benton's discharge. It is sig-
nificant, in this connection, that at no time was Benton warned that failure to
discontinue these activities might result in discipline or discharge, nor was any order
or advice given Benton to discontinue them. It is hardly likely that it would have
failed to indicate its position in the matter to Benton had it been concerned in the
manner it now urges. On the contrary, its antipathy to the Union, as reflected by the
facts herein found, indicates that what it objected to was the union activity as
such. Under these circumstances the respondent's argument on the point fails.
The respondent's contention that it would have adversely affected Benton's and
the other employees' morale if the respondent had reduced Benton to the status
of a non-supervisory employee in accordance with his request is not supported by
the record. The undersigned is convinced and finds that Benton was discharged on
January 31, 1945, because he was a member and active in behalf of the Union and
for no other reason. The undersigned further finds that by making the anti-union
statements set forth above, by questioning the employees regarding their union
affiliations, by discharging Benton,11 and by refusing to bargain collectively with
the Union as the representative of its employees, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE 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
between the several States, and such of them as have been found to be 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, the
undersigned will recommend that the respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the respondent has discriminated in regard to the hire and
tenure of employment and the terms and conditions of employment of Jack Benton
by discharging him on January 31, 1945, the undersigned will recommend that the
respondent offer him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority and other rights and privileges.
The undersigned will further recommend that the respondent make Jack Benton
ii As the Circuit Court of Appeals for the Seventh Circuit in N. L. R. B. v. Automotive Main.
tenance Machinery Company, 116 F (2d) 350, 353 observed: "No more effective form of in-
timidation nor one more violative of N. L R. Act can be conceived than discharge of an
employee because lie joined a Union . . . '
696966-46-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole for any loss of earnings he may have suffered by reason of the respondent's
discrimination against him, by payment to him of a sum of money equal to the
amount he would have normally earned as wages from the date of the respondent's
discrimination against him to the date of the respondent's offer of reinstatement,
less his net earnings12 during that period.
Having found that the respondent refused to bargain collectively with the Union
on December 22, 1944, it will be recommended that the respondent, upon request,
bargain collectively with the Union as the exclusive representative of all the em-
ployees in.the unit heretofore found appropriate.
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. International Association of Machinists, affiliated with the American Federa-
tion of Labor, is a labor organiation, within the meaning of Section 2 (5) of the
Act.
2. All mechanics, mechanics helpers, and mechanic apprentices employed by the
respondent at its Reno, Nevada, shop, excluding grease men and all supervisory
employees with authority to hire, promote, discharge, discipline, or effectively
recommend such action, constituted, and now constitutes, a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9 (b) of the Act.
3. International Association of Machinists was on December 15, 1944, and at
all times thereafter, the exclusive representative of all the employees in the afore-
said appropriate unit for the purposes of collective bargaining, within the meaning
of Section (a) of the Act.
4. By refusing on December 22, 1944, and at all times thereafter, to bargain
collectively with the International Association of Machinists, as the exclusive repre-
sentative of all its employees in the aforesaid appropriate unit, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of Section
8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of jack
Benton, thereby discouraging membership in International Association of Machinists,
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
6 By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommend that the respondent, Wells, Inc., Reno, Nevada, its officers,
agents, successors, and assigns shall:
12 By "net earnings" is meant earnings less expenses , such as for transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere than
for the respondent, which would not have been incurred but for his unlawful discharge and the
consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber
Company, 8 N L. R B 440. Monies received for work performed upon Federal, State, county,
municipal, or other work-relief projects shall be considered as earnings . See Republsc Steel
Corporation v. N. L R B., 311 U. S. 7.
WELLS, INC. 565
1. Cease and desist from:
(a) Discouraging membership in International Association of Machinists,
affiliated with the American Federation of Labor, or any other labor organization
of its employees, by discharging or refusing to reinstate any of its employees or
in any other manner discriminating in regard to their hire or tenure of employment
or any term or condition of employment ;
(b) Refusing to bargain collectively with International Association of
Machinists, affiliated with American Federation of Labor, as the exclusive repre-
sentative of all the respondent's mechanics, mechanic helpers, and mechanic
apprentices employed by the respondent at its Reno, Nevada, shop, excluding
grease men and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or effectively recommend such action;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist the International Association of Machinists, affiliated with
American Federation of Labor, or any other labor organization, to bargain col-
lectively through representatives of their own choosing and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act.
(a) Upon request bargain collectively with International Association of
Machinists, affiliated with American Federation of Labor, as the exclusive repre-
sentative of all the mechanics, mechanic helpers, and mechanic apprentices employed
by the respondent at its Reno, Nevada, shop, excluding grease men and all super-
visory employees with authority to hire, promote, discharge, discipline, or effectively
recommend such action ;
(b) Offer to Jack Benton immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges in the manner set forth in "The remedy";
(c) Make whole, in the manner set forth in "The remedy," Jack Benton for
any loss of earnings he may have suffered by reason of the respondent's discrim-
ination against him ;
(d) Post at its Reno, Navada, shop, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director of the Twentieth Region, shall, after being duly signed by the respondent's
represen'ative. b,^ posted by the respondent immer'iately upon receipt thereof,
and maintained by it for sixty (60) consecutive d'ys thereaft-r, in ccnspicuous
places, including all places where notices to employees are customarily posted
Reasonable steps shall be taken by the respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Twentieth Region in writing,
within ten (10) days from the receipt of this Intermediate Report, what steps
respondent has taken to comply therewitl•,
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board , Series 3 , as amended , effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the entry of the order transferring the case to the Board , pursuant to Section 32
of Article II of said Rules and Regulations , file with the Board , Rochambeau
Building, Washington , D. C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding ( including rulings upon all motions or objections)
as he relies upon together with the original and four copies of a brief in
support thereof . Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file a copy with the Regional
Director . As further provided in said Section 33, should any party desire permission
to argue orally before the Board , request therefor must be made in writing to
the Board within ten ( 10) days from the date of the order transferring the case
to the Board.
HOWARD MYERS,
Dated October 17, 1945. Trial Examiner.
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 not in any 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 International Association of Machinists or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named union 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 mechanics, mechanic helpers,
and mechanic apprentices employed by the respondent at its Reno, Nevada,
shop, excluding grease men and all supervisory employees with authority to
hire, promote, discharge, discipline, or effectively recommend such action.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
WELLS, INC.
Employer.
By ............. ........................
(Representative ) (Title)
Dated ..............................
WELLS, INC. 567
NOTE.-Any of the above -named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced , or covered by any other material.