Western Saw Manufacturers, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1965

155 N.L.R.B. 1323 (N.L.R.B. 1965)

WESTERN SAW MANUFACTURERS, INC. 1323
places where notices to employees are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 17, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent had taken to
comply herewith.6
OIn the event that this Order is adopted by the Board , this provision shall be modified
to read , "Notify said Regional Director , in writing , within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Bob Mummey and Robert Brown their former jobs and pay
them for wages they lost since we discharged them.
All our employees have the right to join or assist Teamsters Local Union 795,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other union. They also have the right not to join or assist
any union.
WE WILL NOT take or threaten to take any action against them for engaging
in union activity, question them as to their union membership or that of their
fellow employees , promise or grant benefits to them in an effort to get them not
to support a union, interfere in their determination whether to join or remain
union members , or in any other manner interfere with, restrain , or coerce them
in their exercise of those rights.
BETTS BAKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office,
1200 Rialto Building, 906 Grand Avenue, Kansas City , Missouri, Telephone No.
221-2732.
Western Saw Manufacturers, Inc. and Cabinet Makers & Millmen
Union Local 721, United Brotherhood of Carpenters & Joiners
of America , AFL-CIO. Cases Nos. 31-CA-211 (formerly 91-
CA-6109), and 31-CA-21-2 (formerly 91-CA-6109-2). Decem-
ber 6,1965
DECISION AND ORDER
On August 17, 1965, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respondent
'Subsequent to the hearing , Case No. 31-RC-4 (formerly 21-RC-9136 ) was severed
from this consolidated proceeding and remanded to the Regional Director for Region 31
for further processing . On October 8, 1965, the Regional Director set aside the election
in Case No . 31-.RC-4 ( formerly 21-RC-9136 ) on the basis of the Petitioner ' s objections.
155 NLRB No. 131.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the s,ttached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had
not engaged in certain other unfair labor practices and recoirinended
that these allegations be dismissed. The Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief. Thereafter,
the General Counsel and the Charging Party filed cross-exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby af-1ir-me1. The Board has considered the Trial
-Examiner's Decision, the exceptions, the cross exceptions, the briefs,
and the entire record in these cases, and hereby adopts the findings,
,conclusions and recommendations of the Trial Examiner with the
following modifications and additions.2
The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees by unlawful
interrogation, threats, and promises of benefits; discriminatorily dis-
charged two employees; interfered with the election conducted by, the
Board; and refused to bargain with the Union, the representative of
a majority of its employees, in violation of Section 8(a) (1), (3), and
(5) of the Act. included in the benefits which the Trial Examiner
found were unlawfully offered were repeated promises of a wage
increase. to. an employee if he would promise not to vote for the Union.
The Trial Examiner, however, found no merit in the General Counsel's
contention that the Respondent, by granting wage increases to a
large number of employees, further violated Section 8(a) (1) of the
Act. The General Counsel and the Union have excepted to this finding.
For the reasons set• fog h below, we find merit in these exceptions.
The wage increases in question were granted between July 23 and
August 30, 1964, prior to the-Board election which w as held-on Septem-
ber 4, 1964, and during the period when the- Respondent, aware of
the Union's organizational drive, engaged in the unlawful conduct
referred to above. These increases were granted to 10 of the 21 employ-
ees in the unit, and 2 of these employees, Cancinos and -Foss, were
granted increases of 15 and 20 cents an hour respectively on July 30,
2 The General Counsel excepted to the Trial Examiner's apparently inadvertent failure
to include in the notice a provision that the Respondent will cease and desist from its
refusal to bargain and a description of the appropriate unit. We shall amend the notice
accordingly.
'WESTERN SAW 3ANUFACTtiRERS , INC. 1325
only a week after they had received 10 cent raises on July 23. More-
over, as the Trial Examiner found; the Respondent had offered Pross
a wage increase "almost every day" during this period if he would
promise not. to vote for the Union. Although the Respondent testified
that there were periodic reviews of wage rates at which management
discussed and determined the increase to be granted to deserving
employees, it failed to show any pattern of increases on a- scale or to an
extent commensurate with those granted during the period here in
issue.. Accordingly, we find, in view of all these circumstances and in
the light of the Respondent's other unlawful conduct, that the Respond-
ent granted these wage increases for the. purpose of influencing its
employees to reject the Union as their collective-bargaining representa-
tive., and that the Respondent thereby further violated Section 8 (a) (1)
of the. Act .3
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the -National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that The Respondent, `V, estern Saw Manufacturers,
Inc., Los Angeles, California, its -officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Paragraph 1(e) is changed to read:
66 (e) Offering or giving wage increases for the purpose of influenc-
ing its employees to reject Cabinet Makers &, Millrnen Union, Local
721, United Brotherhood of Carpenters & Joiners of America, AFL-
CIO, or any other labor organization, as their collective-bargaining
representative."
2. Paragraph 2 (b) is changed to read : -
"(b) Offer Charlie Powell and Clipper Duckworth reinstatement
to their former or substantially equivalent positions, and make them
whole for any loss of pay suffered by reason of the discrimination
against them, in accordance with the method set forth above in the
section entitled "Tae Remedy."
3. The third paragraph of the. Appendix is changed to read:
WE FV'_LL NOT Offer or give- wage increases to employees for the
purpose. of influencing them to reject the above-named Union,
or any other labor- organization, as their collective-bargaining
representative.
4. Add the following immediately after the fifth paragraph of the
Appendix :
1V F WILL NOT refuse to bargain collectively, upon request, with
the. Cabinet zTakers & MilImen Union, Local 721, United Brother-
8 See Amboa, Inc . porxted, 146 NLRB 1320, 1521.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Carpenters & Joiners of America, AFL-CIO, as the=
exclusive representative of our employees in the unit described
below.
5. The seventh paragraph of the Appendix is changed to read :
-' E WI L bargain, upon request, with Cabinet Makers & Mill-
men Union, Local 721, United Brotherhood of Carpenters & Join-
ers of America, AFL-CIO, as the exclusive representative of our-
employ ees in the following appropriate unit:
All production and maintenance employees, shipping and
receiving employees, and truckdrivers at our Los Angeles,.
California, plant, excluding office clerical employees, sales-
men, guards, professional employees, and supervisors as
defined in the Act.
6. Add the following immediately below the signature line at the
bottom of the Appendix.
NOTE: We will notify the. above-named employees if presently
serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner David Karasick in Los Angeles,
California, on February 9 through 12, 1965, upon charges filed in Case No. 21-CA-
6109 on August 6, 1964, and in Case No. 21--CA-6109-2 on September 11, 1964,
and upon a consolidated complaint issued on November 27, 1964, alleging that
Western Saw Manufacturers, Inc., herein called the Respondent , had engaged in
unfair labor practices in violation of Section 8(a)(1), (3 ), and (5) of the National
Labor Relations Act, as amended, herein called the Act.
Evidence was also taken at the hearing in connection with certain objections filed
by Cabinet Makers & Millmen Union, Local 721, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, the charging party (herein called the Union) in
respect to an election conducted by agents of the Board among the Respondent's
employees on September 4, 1964.
All parties were represented at the hearing and all have filed briefs. Upon con-
sideration of the entire record in the case and from my observation of the demeanor
of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE RESPONDENT
As alleged in the complaint and admitted in the answer , I find that the Respond-
ent, a California corporation located in Los Angeles, California, manufactures cir-
cular saw blades, and is engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
WESTERN SAW 1IAi^ LTPACTLTRERS, I NC. 1327
Di. THE UNFAIR LABOR PRACTICES ALLEGED
A. The issues
1. Interference, restraint,- and coercion
In July 1964, some of the Respondent's employees discussed among themselves
the advisability of joining a union. At the request of several of his fellow workers,
employee Charlie Powell communicated with the Union and as a result a union
meeting was held on July 21. Nine of the employees who attended this meeting
signed cards authorizing the Union to represent them and between that date and
July 28, four additional employees signed such union cards.
A week or two before the union meeting was held on July 21, employee Clipper
Duckworth testified that he was asked by Production Manager Lyons 1 whether
there was going to be such a meeting.
Duckworth replied that he knew nothing about it and asked Lyons where he had
received such information. Lyons answered that employee Anthony Schiller 2 had
told him. On the morning after the meeting occurred, Powell testified that Lyons
asked Schiller in Powell's presence how the meeting had come out. When Schiller
denied knowing anything about a union meeting, Lyons replied, "The hell, Tony,
you told me about it last night. Why can't you tell me about it today?" On this
occasion, Lyons also stated that he would like to know every man who attended so
that he could discharge him. Schiller insisted that he had not told Lyons about the
union meeting and walked away from the two men. After he had left, Lyons then
asked Powell if he knew anything about it. Powell replied, "If they had one, they'd
better let me know something about it. If they don't I'll get mad." 3
Later on the same morning. Lyons again spoke to Powell about a union and
Powell stated, "We need something in here." Lyons answered, "If I find out who
done it, I'll fire him." Powell again disclaimed any knowledge as to who had
arranged the union meeting.4
1 Lyons described his duties as those of an expediter . However, Frank Padilla, vice
president and sales manager of the Respondent , testified that Lyons was production man-
ager. In any event. it is conceded that Lyons is a supervisory employee.
2 Schiller was one of several employees who, together with Powell , first discussed the
advisability of joining a union.
8 Lyons denied that he had ever asked any employee if he had gone to a union meeting.
He also denied that he had ever talked to Schiller about the union meeting but admitted
that Schiller had mentioned such a meeting to him sometime after August 4. Notwith-
standing such admission , Lyons later in his testimony denied that he knew that the em-
ployees had attended a union meeting . Schiller signed a union authorization card on
July 21 : thereafter repudiated the Union ; was. among other employees , granted a wage
increase on July 30 ; and in January , 1965, was told by the Respondent that he was "to
help in supervision" In general , he displayed an evasiveness and a reluctance to testify
about matters which might be regarded as harmful to the Respondent's cause. Regarding
the union meeting, Schiller testified that Lyons asked him about it in a "joking" manner
on the day it occurred and also asked him about it on the following morning, thus cor-
roborating Powell's testimony that such interrogation had occurred. Upon the basis of
the foregoing facts, upon my observation of the demeanor of the witnesses in question,
and upon the record as a whole, I find that Lyons did question Duckworth as to a union
meeting on July 21, as Duckworth testified , and that on July 22, Lyons did interrogate
Schiller and Powell and did make the statements attributed to him by Powell in accord-
ance with the latter 's testimony . as above related.
4 The foregoing testimony of Powell was denied by Lyons. I credit Powell and find
that the conversation occurred in the manner related by him. The Respondent sought to
impeach Powell by the testimony of Isaac Watkins as to the place where Watkins had
signed a union authorization card and by the testimony of Lyons and Padilla as to the
time required in heating a specified saw blade in the salt pot during the manufacturing
process. I was not favorably impressed either with the demeanor of Watkins , who testi-
fied he had never been asked by anyone , including counsel for the Respondent , about the
subject matter of his testimony prior to the time he took the witness stand, or with that
of Lyons or Padilla, for reasons elsewhere set forth with respect to each of them. I do
not agree that Powell was not a credible witness. From my observation of his demeanor
and an analysis of his testimony as a whole I am of the opinion that he was a reliable
witness who sought to recount events about which he testified to the best of his
recollection.
1328 DECISION -S OF -NATIONAL LABOR RELATIONS BOARD
Shortly after employee Fred Pross signed a union authorization card on July 22,
Production Manager Lyons asked him if he had signed such a card, Pross admitted
that he had. Lyons also asked if Pross knew who had brought the cards into the
plant. On several occasions between that date and the date of the election on
September A, Lyons offered Pross a wage increase if he would promise not to vote
for the Union.5
During the last week in July, Lyons asked employee Louis DeAngelis whether
there was any talk about union activities. DeAngelis said he diet not know and
Lyons stated that anyone that talked about a union during working hours would be
discharged. Lyons then asked DeAngelis whether it was employee Charlie Powell
who had started the Union. When DeAngelis said he did not know, Lyons asked
whether it was employee Clipper Duckworth. Again DeAngelis said that he did
not know. Lyons finally asked if it was employee Anthony Schiller. DeAngelis
reiterated that he not knows
On July 23 and again on July 30 , the Respondent granted wage increases to 10
of the 21 employees in the appropriate bargaining unit.
Between the latter part of July or in early August, Production Manager Lyons
stated to employee Anthony Schiller, 'Well, the guys are trying to get a union in
here." When Schiller replied that it looked like it, Lyons declared, "I guess you
signed up, too," and Schiller replied that he had.7
On August 4, the Respondent received a letter from the Union staging that the
latter represented a majority of the employees and requesting recognition. Imme-
diately after receiving the letter and for a day or two thereafter, the Respondent
conducted what it termed a "survey." Each employee was questioned either by
Padilla or by Lyons as to whether he desired to have a union represent him. Accord-
ing to Padilla and Lyons, a majority of the employees said they did not.
On August 7, during a conversation between employee Hiiario Zamarippa, Vice
President Padilla, and Production Manager 1 yons, Padilla asked Zamarippa if he
had signed P. union authorization card. When Zamarippa replied that he had,
Padilla then asked him who the other employees were who had also signed such
cards. During this conversation, Padilla also stated that if the Union got in the
plant, the Respondent would close the shop 8
On or about August 10, Lyons asked employee Norman Francis if he had signed
a union card and also asked him how he was going to vote the election.9 Lyons
also told Francis that the shop would be closed if the Union came in.
S The foregoing testimony of Press was denied by Lyons . I am unable to agree with the
position taken by the Respondent in its brief that Press is not to be believed. I was
favorably impressed by his demeanor as a witness and by the general consistency of his
testimony , which I credit.
6 Lyons denied that he had asked for the names of the employees who had started the
union activities at the plant. He admitted , however, that he and Vice President Padilla,
immediately after receiving notification from the Union that it represented a majority of
the employees and requested recognition , between them asked each of the employees
whether he desired a union to represent him. In addition to DeAngelis . who was employed
in the plant at the time of the hearing and testified that he and Lyons were good friends,
five other employees testified that Lyons questioned them as to their union activities or
those of their fellow employees . Lyons testified that one of the employees mentioned a
union meeting to him but denied that he ever questioned any employee about union activ-
ities. Lyons ' testimony is marked by inconsistent and contradictory statements , and I was
not favorably impressed by his demeanor as a witness . Based upon the foregoing facts
and upon. analysis of the record as a whole . I find that Lyons did make the statements
attributed to him by DeAngelis , as above set forth.
7 The foregoing testimony of Schiller was not spec _' fieally denied by Lyons, although he
did deny that he ever asked any of the employees if they had signed union cards.
8Padilla admitted that he had a conversation with Zamar ippa about the Union about
the middle of August . He testified he did not remember if he asked Zamarippa at that
time whether he had signed a union authorization card. In an affidavit dated Septem-
ber 28. 1964 , which Padilla submitted to the Regional Office of the Board in response to
charges filed by the Union, he stated that about 15 days earlier Zamarippa had told him
that he had signed a card for the Union . In the same affidavit , he stated that he did not
know whether he asked Zamarippa if he knew the names of employees who had signed
union cards . In his testimony, Padilla did not deny that he had stated that the Respond-
ent would close the shop if the Union came in, as Zamarippa had testified . Zamarippa
impressed me favorably as a witness . I find that Padilla made the statements attributed
to him by Zamarippa, as the latter testified.
0 As noted elsewhere , the Union had filed a petition in Case No . 21-RC-9136 on August 6.
WESTERN SAW _11ANUFACT RERS, INC. 1329
A day or two later, Lyons told a group of the employees, one of whom was
Francis, that much of the merchandise the Respondent sold could be bought by it
back East as cheaply or almost as cheaply as it cost to manufacture and that the
Respondent could operate merely the shipping and receiving department and close
down the shop if the Union came m.10
Pursuant to the terms of a consent-election agreement entered into between the
Respondent and the Union on August 25, 1964, an election was held on September 4,
in the shipping room of the Respondent's plant. On the day, of the election. Duck
worth and Powell appeared at the plant for the purpose of voting but were denied
admission by Production Manager Lyons and Vice President Padilla, although both
the agent of the Board and a representative of the Union advised Padilla that the
election could be challenged if Duckworth and Powell were denied the right to vote.
The Union lost the election by a vote of 11 to 6 and thereafter, on September 11,
1964, filed objections to conduct affecting the results of the election. On Decem-
ber 2, 1964, the Regional Director issued his report on objections and an order
directing hearing, as more fully related hereafter.
2. Discrimination
a. The discharge of Charlie Powell
Powell began to work for the Respondent on September 8, 1962. At various
times he operated the drill press, the punch press, the sliding machine, and the
grip-din.- machine. At the tine he last was employed, he was working in the heat-
treating department. When he first began work, he was paid S1.60 an hour. During
the period of his employment, he received six wage increases, the last of which was
granted on October 3, 1363, When he was paid $2.20 per hour. Otto Bell was
Powell's foreman.11
As previously related, Powell, at the request of several of his fellow employees,
got in touch with the Union as a result of which the union meeting of July 21 was
held. Powell and eight other employees who attended signed union authorization
cards. Thereafter, Powell was active on behalf of the Union and gave union authori-
zation cards to other employees to sign. L-? the latter part of July, Production
Manager Lyons questioned employee DeAngelis as to who had started the Union
in the plant and specifically asked if it had been Powell. On the morning of July 31,
Bell told Powell that the Respondent had learned that the employees had attended
a union meeting and that the company was "pretty hot about it." Later that day,
shortly before lunch, Bell again saw Powell and on this occasion told him, "1 don't
know for sure, but they think it's you, the one who done it. " 12 When Powell finished
work at the end of the day, he was told by Production Manager Lyons that he was
11 Lyons denied that he discussed the Union with Francis and denied that he told the
employees at any time that if the plant went union the Respondent would close down the
shop. He admitted having told a group of the employees that the Respondent could buy
saws in the East and close the shop but. according to his version, he had stated this as a
supposition on his part in response to a question from Francis as to what would happen
if the shop went union. In assessing the weight to be given his testimony. I have con-
sidered the fact that Francis was no longer employed by the Respondent at the time he
testified . He impressed me as a reliable witness . I find that Lyons made the statements,
as noted above.
n The Respondent contends that Bell is a working foreman but is not a supervisor within
the meaning of the Act. Bell, who receives $3.00 an hour, is the only person other than
President Neilsen, Vice President Padilla, and Production Manager Lyons engaged in the
direction of the approximately 18 manufacturing employees who work in the 11 depart-
ments of the Respondent's plant. Padilla . who is also sales manager, spends substantial
portions of his time away from the plant itself. In addition to vice President Padilla and
Production Manager Lyons, Bell initials timecards of employees, thereby authorizing pay-
ment to them for work performed prior to or after regular working hours. Bell, together
with President Neilsen, Vice President Padilla, Production Manager Lyons. and Nancy
Pounds, who is a member of the board of directors of the corporation, constitute a board
of the Respondent which determines whether an employee should be terminated. He as-
signs work to employees in addition to directing them-in the performance of their duties
and granting them time off from their regular hours of work. Based on the foregoing
facts and on the record as a whole, I find that Bell is a supervisory employee within the
meaning of the Act.
' The foregoing is based upon the testimony of Powell which was undenied. The
Respondent did not call Bell as a witness nor did it show any reason for its failure to do so.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOAID
being terminated. Powell asked what reasons the Respondent had for taking such
action and Lyons replied, "Well, there's quite a few different little reasons. You
keep a dirty work area. On some occasions, you talk and you lay off quite a bit.
Above all, we don't accept garnishees." Powell asked who had garnisheed his wages
and Lyons said that he did not know. Powell then stated, "If I was garnisheed
you'd know who it was, wouldn't you?" Lyons replied that it might have been just
a threat of garnishment but refused to answer Powell's inquiry as to who had made
such a threat. In the same envelope with his final paycheck, Powell was given the
following statement, dated July 31, 1964, and signed by Lyons:
This is to notify you that your services will no longer be required and your
employment is [sic; terminated as of today.
The reasons being: Lack of production standard-work below production
standard as was pointed out to you in the note of 6-3-64. Repeated absenteeism.
As you remember, I had several talks with you regarding getting back to the
standard amount of production.
Also, it is against company policy to receive garnishments.
Powell denied that his pay had ever been garnisheed while he worked for the
Respondent. He further denied that he had ever been told that a standard of pro-
duction existed, that anyone had talked to him about his production, or that he had
ever been given a note regarding that matter. In addition, he denied that, at any-
time prior to his termination, any supervisor of the Respondent had ever complained
to him about being absent. Powell testified without contradiction that, on May 16,
he was given permission by Bell, Lyons, and Padilla to make a trip back East; that
before he left he was told by Padilla to call him collect when he arrived at his
destination; that he did so and spoke to Lyons whom he told he was running short
of money and that Lyons wired him sufficient money to return, which he later repaid.
He further testified without contradiction that on Monday and Tuesday of the week
during which he was terminated he was absent from work because of a severe sun-
burn but that he called the company to report the reason for his failure to appear
at work.
b. The layoff and discharge of Clipper Duckworth
Duckworth was last employed by the Respondent on September 7, 1950, and
worked from that time until he was laid off and thereafter discharged, as related
hereafter. He had previously been employed by the Respondent in 1945. Duck-
worth was a sawfiier and sawmaker. His job was a skilled one and he was among
the highest paid employees in the plant.
As noted above, approximately a week or two before the union meeting which
occurred on July 21, Production Manager Lyons asked Duckworth whether there
was going to be such a meeting. Duckworth said he knew nothing about it and asked
Lyons where he had received such information. Duckworth expressed disbelief
when Lyons stated that employee Anthony Schiller had so informed him. Duck-
worth attended the union meeting on July 21 and signed a union authorization card
on that date. In the latter part of July. Production Manager Lyons asked employee
DeAngelis whether the Union had been started by Duckworth, Powell, or Schiller.
On at least one occasion, Duckworth, together with Powell and Schiller, talked to
one of the employees about signing a union authorization card.
On the morning of July 31, Duckworth was ill and so informed Foreman Bell
who told him to work as long as he could. Duckworth also told Production Man-
ager Lyons that he was sick and did not think he could finish the day. Lyons stated
that he hoped Duckworth could continue to work for the balance of t1he day because
they needed to get the work out and Duckworth said he would do his best. By mid-
morning Duckworth felt too ill to continue and told Lyons that he would have to
leave work. Lyons told Duckworth that Vice President Padilla wanted to see him.
Padilla was out of the plant and Lyons asked Duckworth to wait until Padilla
returned. Duckworth, however, told Lyons that he was too ill to wait and would
have to leave.
After leaving the plant at 10 a.m. Duckworth consulted his doctor. At approxi-
mately 3:45 that afternoon, Duckworth returned to the plant to pick up his pay-
check. When he arrived at the plant, Lyons told him that he was being laid off
for 2 weeks and gave him the following typewritten statement:
Due to lack of work, your services will not be required for the next two
weeks.
After that, please telephone.
WESTERN SAS' MANUFACTURERS, !NC.- - 1331
Duckworth asked Lyons to sign the slip and stated that it was not true, that there
was plenty of work to do and that he was not being laid off for that reason. Lyons
replied that it was not on account of Duckworth's work. Duckworth then accused
Lyons of laying him off because he had signed a union card. Lyons asked who else
had done so and Duckworth replied that he only spoke for himself 13
On or about August 13, 1.964, Duckworth returned to the plant for the purpose
of securing a form from the Respondent which would enable him to file a claim for
unemployment compensation because of his layoff. While he was there, he saw
Lyons Who told him to come back on the following morning. When Duckworth
returned the next morning, Lyons informed him that he was discharged because he
had not gone to the doctor and Lyons declared that he had a letter from-the doctor
saying that he had not come to see him. Duckworth then told Nancy Pounds, one of
the girls who worked in the office and who was a member of the board of directors of
the Respondent, to phone the doctor and check whether he was there or not. In
the discussion which followed, it developed that -here was a misunderstanding as to
the identity of the doctor whom Duckworth had consulted. Duckworth finally asked
for a termination slip and Lyons said that he might get one through the mail but
Duckworth testified that he never received such a document.
Pounds, who was called as a witness by the Respondent and testified as to other
matters, did not deny that Duckworth had asked her to call his doctor and verify
the fact that he had consulted him as he had claimed to have done. Lyons testified
that he, Neilsen, Padilla, and Bell comprise a board of the Respondent which decides
whether any employee is to be discharged; that this board decided that Duckworth
should be terminated; and that Duckworth was informed of such decision when he
appeared at the plant about 10 days after he had been laid off. Lyons further testi-
fied that he gave Duckworth the following typewritten termination notice which was
unsigned and undated:
After reviewing past attendance records and taking into consideration the
leaving of an important production job on Friday, July 31, at 11 a.m. without
permission, it is our decision to terminate him.
Attendance-Off the first five weeks of the year. In the subsequent 27 pay-
roll periods, he worked fail time only 5 weeks. Work was always available.
According to Lyons, Duckworth crumpled the termination slip in his hand and either
put it in his pocket or threw it on the floor. Lyons first testified that the board meet-
ing which determined upon the discharge of Duckworth occurred 4 days to 1 week
after the layoff and later testified that it occurred 2 or 3 days thereafter. While
Lyons testified that no one beside himself, Neilsen, Padilla, and Bell were present
at board meetings, Padilla testified that sometimes Nancy Pounds was present at
such meetings. Lyons admitted that he could recall no prior occasion on which a
termination slip he had given to an employee contained neither a date nor a signa-
ture. Lyons' demeanor as a witness did not impress me favorably and, as noted
above, his testimony is marked by evasions and contradictions . For the -foregoing
reasons and based upon the record as a whole, I find that Duckworth was discharged
in the manner in which he testified and that he did not receive a written notice set-
ting forth the reasons for his termination.
3. The refusal to bargain
a. The appropriate unit
It is conceded, and I find, that all production and maintenance employees, ship-
ping and receiving employees and truckdrivers, employed by the Respondent, but
13 The foregoing findings are based upon the testimony of Duckworth . Lyons' version
of the layoff was that the Respondent had a very important job which Lyons had brought
to the gumming room where Duckworth worked ; that Lyons noticed a strong smell of
alcohol on Duckworth's breath and later in the day noticed that Duckworth had made
three trips to the restroom ; that he spoke to Duckworth who said he was going home and
refused Lyons' request to remain and finish his work ; and that Lyons then told Duck-,
worth that he had tolerated this as much as he - could. that he was going to lay off Duck-,
worth and would recommend to the board of the Respondent which passed on such matters
that Duckworth should be terminated . As noted above, the slip given Duckworth by Lyons
states that the reason for the layoff was due to lack of work and -mentions nothing about
either having left an important job or the fact that a recommendation would be made
that Duckworth be discharged . I credit Duckworth 's version of what occurred on the
occasion in question , as set forth-above.
212-809-66-vol. 155-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding office clerical employees, salesmen, guards, professional employees, and
supervisors as defined in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 91(b) of the Act.
b. The Unions demand for recognition and its majority
On August 4, 1964, the Respondent received a letter in which the Union stated
that it represented a majority of the Respondent's employees and requested recogni-
tion for the purpose of negotiating a collective-bargaining agreement. The letter
further suggested that if the Respondent doubted that the Union represented a
majority of the employees, the Union would be willing to have a card check con-
ducted by an independent third party. On August 6, the Union filed a representation
petition with the Regional Office of the Board in Case No. 221-RC-9136.
On August 4, when the Respondent received the Union's request for recognition,
21 persons were employed in the appropriate bargaining unit 14 Between July 21
and 28, 13 of the 21 employees in the unit signed union authorization cards.
Accordingly, I find that the Union represented a majority of the Respondent's
employees in the unit hereinabove found to be appropriate at all times on and after
July 28, 1964, and that, therefore, at all times on and after August 4, 1964, when
the Union's demand for recognition was received by the Respondent, the Union was
such majority representative.
c. The Respondent's response
On August 7, Vice President Padilla wrote a-letter to the Union, in response to
the Union's letter which had been received on August 4, stating that the Union's
jurisdiction did not cover the Respondent's employees and that the Respondent chose
to have the State Conciliation Service clarify that question. No further response
was made to the Union's demand for recognition.
B. Concluding findings
1. Interference, restraint, and coercion
From the evidence set forth above, it is clear that the Respondent, having learned
that its employees were interested in organizing a union, engaged in a vigorous cam-
paign to defeat their efforts. By Production Manager Lyons' interrogation of Duck-
worth 1 or 2 weeks preceding the union meeting of July 21 regarding when such
meeting would be held and his similar interrogation of Schiller on the day of the
union meeting; his interrogation of Powell and Schiller on July 22 as to how the
meeting went and his threat to discharge all the employees who had attended; his
threat to Powell on the same day to discharge whoever was responsible for initiating
the Union; his interrogation of Pross on or about July 22 as to whether Pross had
signed a union authorization card and if Pross knew who had brought such cards
into the plant; his offer to Pross on several occasions after July 22 and before the
election of a wage increase if Pross would promise not to vote for the Union; his
interrogation of DeAngelis during the last week in July as to who was responsible
for the union activity; the layoff of Duckworth on July 31, the discharge of Powell
on that date and of Duckworth on or about August 14; the "survey" conducted by
Padilla and Lyons on or about August 4, in which each employee was questioned
as to whether or not he desired to have a union represent him; Vice President
Padilla's and Lyons' questioning of Zamarippa as to whether he had signed a union
authorization card and the identity of the other employees who had signed such
cards and Padilla's threat to close the shop if the Union got in; Lyons' interrogation,
on or about August 10, of Francis as to whether he had signed a union authoriza-
zs The parties are in agreement as to 19 of the persons who would be included in such
unit. In addition to these, the Respondent contends that Otto Bell and Arthur Scharff
should be included in the unit while the General Counsel and the Union contends that Bell
should be excluded because he is a supervisory employee and that Scharff should be
excluded because he replaced Charlie Powell who was discriminatorily discharged. The
General Counsel and the Union contend further that Clipper Duckworth and Charlie Powell
should be included in the unit since both were discriminatorily terminated on July 31. As
noted above, I have found that Bell is a supervisory employee and, for the reasons, set
forth hereafter, it is concluded that both Powell and 'Duckworth were discriminatorily
terminated on July 31 . Accordingly , I find that Bell -and Scharff should be excluded from
the unit and that Powell and Duckworth should be included therein.
WESTERN SAW MANUFACTURERS, INC. 1333
tion card and as to how he was going to vote in the election and his statement to
Francis that the shop would be closed if the Union came in ; Lyons' statement on or
about August Ii or 12 to a group - of employees that the Respondent, by buying
saws back East, could close down the plant and operate merely the shipping and
receiving department if the Union came in; and the refusal of the Respondent to
permit Powell and Duckworth to enter the plant for the purpose of exercising their
right to vote in the Board-conducted election , the Respondent interfered with,
restrained, and coerced its employees in the exercise of their rights guaranteed in
Section 7 of the Act, thereby violating Section 8(a)(1) of the Act.15
2. Discrimination
a. The discharge of Powell
It is difficult in this case to determine what position the Respondent takes with
respect to the reasons for the discharge of Powell. As previously noted, Lyons and
Padilla testified that they , Neilsen, and Bell 16 comprised the Respondent's board
which decided upon Powell's discharge. Lyons testified that the board decided to
terminate Powell because his production standards were unsatisfactory and because
he was continuously talking to other employees and affecting their work standards.
When Padilla was questioned about the reasons for Powell's discharge, he men-
tioned nothing about production standards but testified that the board decided upon
Powell's termination because he had received an excessive number of telephone calls
and because he was constantly away from his work area. Neither Lyons nor Padilla
mentioned absenteeism or garnishments as considerations taken into account in the
board's decision but the termination notice which Lyons gave to Powell lists both
of these matters , in addition to poor production, as reasons for his discharge. On
the other hand, the termination notice mentioned nothing about the use of the com-
pany telephone for personal business, which had been alluded to by Padilla, or the
fact that Powell was constantly out of his work area carrying on conversations with
other employees, which was mentioned by Lyons.
Nor is the issue clarified by the positions taken by the Respondent in these pro-
ceedings. During the hearing , the Respondent contended that Powell was discharged
because he was constantly leaving his work area and bothering other employees, his
production had fallen off, and he ignored repeated warnings which he had received
in a 30-day period preceding his discharge. In its brief, the Respondent mentions
nothing about Powell's production as a factor which was considered but contends
that he was discharged for leaving his work area and for failing on one occasion to
follow orders in unloading a truck. If leaving his work area, use of the company
telephone, or failing to follow orders in unloading a truck were considerations which
played a part in Powell's discharge, no explanation was offered as to why these rea-
sons were not included with those which were set forth in the termination notice
given him on July 31.
The Respondent produced no evidence to substantiate the statement made in the
termination notice that Powell had been repeatedly absent or that his wages had
ever been garnisheed. Nor did it produce any evidence which would show that
Powell's work was below production standard. The Respondent failed to show
specifically what that standard was and by what amount Powell failed to meet it 17
15 The General Counsel contends that the Respondent 's conduct in granting wage in-
creases to 10 of the 21 employees in the unit between July 23 and July 30 was unlawful.
Beyond the testimony of Padilla that wage increases were determined by the kind of job
and the ability of the employee and were granted to nearly all employees if they remained
for any length of time, there is no evidence which would provide a basis for comparison
between the Respondent's past practice and the wage increases in question. Suspicious
as the timing and the relative number of such increases may be, I do not believe that
such evidence alone warrants a finding that they were granted for an unlawful purpose.
18 Padilla testified that at times Nancy Pounds also sat on this board.
371 can place no credence in Lyons ' testimony that Powell's production standard con-
sisted of his best day 's work in a given period of time as a result of a synopsis made by
Lyons. No records of such a synopsis were produced and Lyons ' testimony as to the period
of time covered was contradictory . Powell denied that he had ever been informed of a
production standard adopted by the Respondent and further denied that anyone had ever
spoken to him about such a standard or had given him.a note concerning that subject, as
had been stated -in the termination notice. I credit Powell's denials in these respects.
1334 DECISIONS OF NATIONaAL LABOR' RELATIONS BOARD
In each of these instances, the Respondent had within its possession and control the
records which would have enabled it to justify the asserted grounds for Powell's
discharge but in each instance it failed to produce them.
Powell denied that he left any work area to which he had been assigned and went
to another area and discussed matters other than was required for the job and I am
inclined to credit his denial. An analysis of the record convinces me that Powell,
as well as the other employees, discussed the Union both outside of workin g hours
and while they were on the job but there is no credible evidence that while doing
so Powell neglected his work or interfered with the work of of per employees.
Poweli's duties at times carried him into other departments. The record shows that
the Respondent suspected him of engaging in union activities and suspected, when-
ever he was seen talking to employees in other department, that he was talking about
the Union rather that. about his work.
The evidence concerning the use of the company telephone and the purported
failure to follow orders in unloading a truck is equally unsubstantial. I have care-
fully considered the evidence as it relates to these issues and I am convinced that
it does not support the Respondent's position in either instance. The contradictions
and evasions contained in the testimony of Nancy Pounds, who works in the Respond-
ent's office and is one of three directors of the corporation, regarding Powell's use
of the company telephone and the vagueness and confusion in the testimony of Don
Parsons, who testified regarding the truck incident, 18 do not inspire confidence.
I am unable to place reliance upon such evidence.
I cannot find that the reasons advanced by the Respondent for the discharge of
Powell constituted the -real -motivation for his termination . Counterpoised against
these reasons is evidence that Powell was responsible for initiating the union cam-
paign at the Respondent's plant: that the Respondent was hostile to the Union;-that
it threatened to discharge whoever was responsible for having started the Union's
efforts to organize the employees; that it interrogated the employees as to the
identity- of the person who had started the Union; that it discovered that Powell was
the one who had done so; and that on the very day it glade such discovery it severed
Powell's employment. Accordingly, on the basis of the foregoing facts and on the
record as a whole, I find that the Respondent discharged Charlie Powell on July 31,
1964, not for the reasons asserted by it, but because of his union membership and
activities and that by such conduct the Respondent violated Section 8 ( a) (3) and (1)
of the Act.19
h. The layo} and the discharge of Duckworth
In its brief the Respondent asserts that on July 31; Duckworth was drinking "and
that he took off from work anyway when they had a job to give hint= that had to be got
out." The evidence fails to support this contention for, as previously noted, the
layoff slip given to Duckworth-by Lyons stated that he was being laid off "due to lack
of work." The layoff slip makes no mention of the fact that Duckworth had been
drinking or that he had left a job to which he had been assigned and no explanation
was offered by the Respondent for these omissions. I therefore ind that Duckworth
was laid off on July 31, 1964 for the reasons other than those asserted by the
Respondent.
As for Duckworth's discharge on or about August 14, 1964, the Respondent con-
tends in its brief that he was terminated "for drinking and absenteeism." However,
the unsigned and undated ter_-nination notice which Lyons testified he gave to Duck-
worth and which purports to set forth the reasons for the latter's discharge makes no
mention at all of drinking.
With respect to absenteeism, the notice stated that Duckworth had been off the
first 5 weeks of the year and in the following 27 payroll periods had worked full time
only 5 weeks . No evidence was offered by the Respondent to show why Duckworth
is Lyons also testified regarding this matter although he did not include it as one of
the reasons relied upon by the Respondent's board in deciding to terminate Powell. For
the reasons previously stated with respect to the demeanor of Lyons as a witness and
from an analysis of his testimony regarding this incident ; I am unable to credit the version
related by him.
10 In arriving at this conclusion, I have given consideration to a decision by the Cali-
fornia Department of Employment , denying unemployment compensation to Powell on the
ground that he had been discharged for cause . I do not regard this as sufficient evidence
to overcome that which is set forth above and which supports the allegation in the com-
plaint that Powell's discharge was unlawful . Alex Waslelf Bisildvng Maintenance Cotn-
pany, 130 NLRB 50, 51, footnote S.
WESTERN SAW MANUFACTURERS, INC . 1335
did -not work during-the first 5 weeks of the year. The -Respondent's weekly payroll
records from February 12 through July 31, 1964, which were introduced in evidence
by the General Counsel, show that Duckworth seldom worked a full week of 40 hours
and that this was true throughout the entire period in question . -Duckworth was a
skilled but temperamental employee. He testified without contradiction that during
the period in question he asked and received permission on various occasions from
President Neilsen, Vice President Padilla, Foreman Bell and Production Manager
Lyons to go home early on days he had finished the work to which he had been
assigned and further testified without denial that both Padilla and Lyons expressed
their appreciation to him for following such practice. He also testified that during the
last 27 weeks of his employment, he was absent only because of illness or when there
was no work for him to do. In addition, he testified that neither Lyons nor Padilla
had ever complained to him about the hours he worked. On occasion, he performed
work at his own home on orders which the Respondent had received and for which
the Respondent paid him. The payroll records show that Duckworth worked 170
and V4 hours during July, a greater number of hours than he had worked during any
of the preceding 6 months. On the basis of the foregoing evidence, I do not believe
that Duckworth's record of attendance was a consideration which motivated the
Respondent in discharging him.
With respect to the contention that Duckworth was terminated because he had been
drinking, the record shows that the Respondent had been aware for a number of
years that, on occasion, Duckworth would drink while at work. But there is no
evidence that he was ever disciplined, although other employees who had been drink-
ing on the job had been discharged mainly for that reason. President Neilsen testified
that he was informed "quite a few years ago" that a bottle of liquor found in the plant
was believed to be Duckworth's and that during the last 2 years Neilsen had told
Duckworth on a couple of occasions to do his drinking "at home on his own time and
not in the shop." Duckworth admitted that he occasionally took a drink while at work
but denied, and I credit his denial, that he had been drinking either before or during
working hours on July 31. He further testified that on that morning he had reported
not only to Lyons but also to Foreman Bell that he was ill. Bell was not called as a
witness by the Respondent and Duckworth's testimony in this regard is uncontradicted.
It is reasonable to conclude from the evidence as a whole that the Respondent
knew of Duckworth's drinking habits, that they did not create a serious problem, and
that it tolerated them because he was a skilled and valuable worker and that drinking
was not the real reason for his layoff on July 31 or for his discharge thereafter 20
The record establishes that the Respondent was antagonistic to the Union; that it
suspected Duckworth of engaging in union activities, as is shown by Lyons' interroga-
tion of DeAngelis during the last week in July; that its suspicions were confirmed on
July 31 when Duckworth, in a fit of anger at being laid off, told Lyons that he had
signed a union authorization card; and that, following such disclosure, the Respond-
ent discharged Duckworth on or about August 14. Or the basis of the foregoing facts
and on the record as a whole, I am convinced, and find, that Duckworth was laid off
on July 31, 1964, and discharged on or aboutAugust 14, 1964, not for the reasons
asserted by the Respondent, but because he had joined and assisted the Union and
that his layoff and discharge were therefore in violation of Section 8(a) (3) and (1)
of the Act. -
c. The refusal to bargain
The Respondent admits that it refused to recognize or bargain with the Union on
and after August 4, 1964, and contends that it was justified in refusing to do so on the
ground that the Union did not represent a majority of the employees since Powell
and Duckworth were properly discharged and since the "survey" of the employees
showed that a majority of them did not favor union representation. With respect to
so much of the Respondent's contention as relates to the terminations of Powell and
Duckworth, I have already found to the contrary, but, even if that were not true.
the evidence shows that 11 employees, other than Powell and Duckworth, signed union
authorization cards prior to the time the Union made its demand on August ', and the
Union would thus have represented a majority consisting of 11 of the remaining 20
employees 21 With respect to so much of tie Respondent's contention as relates to the
20 Neither Duckworth's often colorful and, I suspect, exaggerated testimony regarding
the extent to which the Respondent acquiesced in his drinking nor the fact that both he
and Powell denied having ever seen a notice on the plant bulletin board prohibiting drink-
ing, which other employees testified they had observed, alter this conclusion.
2i Arthur Scharff was hired to replace Powell on August 4. No new employee was hired
to replace Duckworth.
1336 DECISIONS OF"-1\AAIO14AW' LABOOt R TZ1TS BOARD
``survey" conducted by-the Respondent, I=have' f ourid fsatifs=nndcta`st % tirogat-
ing the- employees under the circumstances of this case cotst iisrteda."`viOlation of
Section 8(a) (1) of the Act. The results of such a-polling of the employees=sentiments
neither constitutes a reliable guide as to their desires - nor` a -justification for -ignoring
and -repudiating the . Union 's demand for recognition . - The -record discloses -con-
siderably more than this; however. As previously related, the -Respondent , from the
time it learned of the employees' efforts to organize, which was 1 or I weeks before
the union meeting of July 21 , until the election on September- 4, engaged in a cam-
paign of interrogation , threats, and discrimination aimed at thwarting the desires of
the employees and defeating - the Union. More specifically , on July 28, the Union
achieved a majority and the Respondent was so informed on August 4, when it
received the Union 's demand for recognition , but thereafter the Respondent ques-
tioned each employee as to whether he desired to have the Union represent him,
threatened to close the plant if the employees sought to have the Union bargain for
them, questioned employees as to their union activities , discharged Powell and Duck-
worth because of their union adherence and denied them the right to enter the plant
for the purpose of voting in the election . On the basis of this evidence, I cannot con-
clude that the Respondent's refusal to bargain was based on a good-faith doubt as to
the Union's majority. Instead, the unfair labor practices in which the Respondent
engaged were designed to destroy the Union 's majority and displayed a disposition on
the part of the Respondent to evade its obligation to bargain.
Accordingly I find that , on August 4, 1964, and at all times thereafter , the Respond-
ent refused to bargain with the Union as the exclusive representative of the employees
in the unit hereinabove found - to be appropriate and that by such conduct the
Respondent violated Section 8 (a)-(5) and ( 1) of the Act.
IV. THE OBJECTIONS TO THE ELECTION
Pursuant-to the terms of a consent-election agreement entered into between the
parties on August 25, 1964, an election was held on September 4. The tally of ballots
of that election shows that of approximately 20 eligible voters, 6 cast ballots for the
Union, 11-against the Union, -1 employee cast a void ballot and 1 ballot was chal-
lenged . Accordingly,-the Union lost the election. However, on September 11, 1964,
the Union filed timely objections to conduct affecting the results of the election.
On December 2, 1964, the Regional Director issued his report on objections, finding
that, of the four objections to the election relied upon by the Union, the first did
not raise an issue of sufficient materiality to warrant setting aside the election and he
accordingly overruled such objection. The Regional Director concluded, however,
that the issues as to the second, third, and fourth objections could best be determined
in the hearing in these proceedings on the related allegations of the complaint. The
Union's second objection alleged that the Respondent refused to permit Duckworth
and Powell to vote at the election; the third that the Respondent had granted wage
increases and other benefits to the employees prior to the election; 22 and the fourth
that the Respondent had told the employees that it would close the plant and the
employees would be without jobs if the Union won the election.
As set forth above, it has been found that, on August 7, Vice President Padilla and
on August 10 as well as August 11 or 12, Production Manager Lyons threatened to
close the plant if the employees selected the Union as their bargaining representative.
In addition, it has been found that the Respondent refused to permit Duckworth and
Powell to enter the plant for the purpose of voting in the Board-conducted election
held on September 4. It has further been found that the evidence is insufficient to
warrant a finding that the Respondent was unlawfully motivated in granting wage
increases to a number of the employees prior to the election. There is thus a factual
basis for the second and the fourth objections to the election.
Since Powell and Duckworth had been discriminatorily discharged prior to the
election, their status as employees continued unimpaired and they were entitled to
cast their ballots. Denying them the right to enter the voting place for that purpose
constituted an act of interference not only with respect to them as individuals but also
with respect to the exercise of a free choice by all of the employees eligible to vote in
the same manner and with the same incalculable effect as did the Respondent's threats
to close the plant if the employees selected the Union to represent them. The effects
of such inhibitory conduct under these circumstances are not susceptible to precise
arithmetic computation. It is enough to conclude that the conduct here in question
was reasonably calculated to inhibit the employees, and did so inhibit them, in express-
22 Other benefits listed with respect to this objection were a free picnic for the employees
and their dependents and the institution of a baseball team. At the hearing, however, no
evidence was offered to support the allegations relating to a picnic or a baseball team.
WESTERN SAW MANUFACTURERS, INC. - 1337
ing what should -have been their free and untrammeled choice - at the election. - Such
conduct is sufficient to vitiate the results of the election , which=I,will-recommend be
vacated as set forth hereafter.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above,occurring in connec-
tion 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 tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated with respect to the hire and
tenure of Charlie Powell and Clipper Duckworth, it will be recommended that the
Respondent offer said employees immediate and full reinstatement to their former
or substantially equivalent positions of employment without prejudice to their seniority
or other rights and priveleges. See The Chase National Bank of the City of New
York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will further be recom-
mended that the Respondent make said employees whole for any loss of pay suffered
by reason of its discrimination against them. Said loss of pay, based upon earnings
which said employees would have earned as wages from the date of the discrimination
to the date of offer of reinstatement, shall be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
Interest thereon at the rate of 6 percent shall be added, as -provided in Isis Plumbing
& Heating Co., 138 NLRB 716. - -
It has been found that, subsequent to the time the Union achieved its majority status
and -requested recognition, the Respondent engaged in unfair labor practices designed
to destroy the Union's majority and to avoid the Respondent's obligation to recog-
nize and meet with the Union. -It further has been found that certain objections to
the election, duly filed by the Union, have merit and warrant setting aside the results
of the election . Accordingly, I shall recommend that the petition in Case No. 21-
RC-9136 be dismissed and that all proceedings held in connection therewith be
vacated. S.M.C. Manufacturing Co., Inc., 147 NLRB 809. In addition, - I shall
recommend that the Respondent bargain, upon request , with the Union and, if an
understanding is reached, embody such understanding in a signed agreement . Irving
Air Chute-Company, Inc., Marathon Division, 149 NLRB 627.
The unfair labor practices committed in this case strike at the very heart of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). The inference is therefore
warranted that the Respondent maintains an attitude of opposition to the fundamental
purposes of the Act designed to protect the rights of the employees. It will accord-
ingly be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAw
1. The Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees , shipping and receiving employees,
and truckdrivers, employed by the Respondent at its Los Angeles, California plant,
but excluding office clerical employees , salesmen, guards, professional employees, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4. The Union has been at all times since August 4, 1964, and now is, the exclusive
representative of the employees in the aforesaid unit within the meaning of Section
9(a) of the Act.
5. Since on or about August 4, 1964, by refusing to bargain collectively with the
Union as the representative of employees in the above unit, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
6. By discriminating with respect to the hire and tenure of employment of Charlie
Powell and Clipper Duckworth, thereby discouraging membership in a labor organiza-
tion, the -Respondent has engaged in unfair labor practices Within the meaning of
Section 8 (a) (3) of the Act.
7. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8.. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in these proceedings, and .pursuant to Section 1A(c) of the National Labor
Relations Act, as amended,_I recommend that the Respondent, Western Saw Manu-
facturers , Inc., Los Angeles, California, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating any of its employees with respect to their membership in, sympa-
thies for, or other concerted activities on behalf of any labor organization.
(b) Threatening to close its plant if its employees designate a labor organization
to represent them.
(c) Interfering with any election conducted by the National Labor Relations
Board.
(d) Threatening any of its employees with layoff, discharge, or other economic
reprisal if they select a labor organization as their bargaining representative or engage
in other concerted activities for their mutual aid or protection.
(e) Offering wage increases for the purpose of influencing its employees to accept
or reject any labor organization as their collective bargaining representative.
(f) Discouraging membership in Cabinet Makers & Millmen Union, Local 721,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other
labor organization of its employees, by laying off, discharging, or in any other manner
discriminating against them in regard to hire, tenure of employment, or any term or
condition of employment, except as authorized under Section 8(a){3) of the Act.
(g) Refusing to bargain collectively, upon request, with Cabinet Makers & Millmen
Union, Local 721, United Brotherhood of Carpenters & Joiners of America, AFL-CIO
as the exclusive representative of its employees in the unit described above.
(h) In any manner interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form, join, or assist Cabinet Makers &
Millmen Union, Local 721, United Brotherhood of Carpenters & Joiners of America,
AFL-CIO, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain from
engaging in any such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as authorized by Section
8 (a) (3) of the National Labor Relations Act, as amended.
2. Take the following affirmative action which I find effectuates the policies of
-the Act.
(a) Upon request , bargain collectively with Cabinet Makers & Millmen Union,
Local 721, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, as
the exclusive representative of its employees in its Los Angeles, California, plant in the
unit described above and embody any understanding reached in a signed contract.
(b) Make whole Charlie Powell and Clipper Duckworth for any loss of pay suf-
fered by reason of the discrimination against them in accordance with the method
set forth above in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due.
(d) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
(e) Post at its Los Angeles, California, plant, copies of the attached notice 23
marked "Appendix." 24 Copies of said notice, to be furnished by the Regional
23 Since notices are customarily framed in the language of the statute and because of
their technical nature are often difficult for employees to understand, I am recommending
that the notice in this case embody the simplified form which appears in the Appendix.
24 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
A & A MAINTENANCE CORPORATION 1339
Director for Region 21, after being duly signed by an authorized representative of the
Respondent, shall be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of-60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 21, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.25
x In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Decision, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT question our employees concerning their membership in or
activities on behalf of Cabinet Makers & Millmen Union, Local 721, United
Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other union.
WE WILL NOT threaten our employees with loss of their jobs or take any other
action against them if they elect to have a union represent them or if they join
or assist a union. -
WE WILL NOT promise to give a wage increase to any employee for the pur-
pose of influencing him to accept or reject a union.
WE WILL NOT threaten to close the plant if the employees select a union to
represent them. -
WE WILL NOT interfere with any election conducted by the National Labor
Relations Board. -
WE WILL, if we have not already done so, immediately offer to Charlie Powell
and to Clipper Duckworth the job each held before he was terminated, or a job
like it, without loss of seniority or any other rights and privileges, and we will
give each- of them whatever backpay he has lost.
WE WILL bargain, upon request, with Cabinet Makers &-Millmen Union, Local
721, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, as the
representative of our employees.
Our employees have the right to join or assist, or to refrain from joining or
assisting , any union.
WE WILL NOT in any manner interfere with our employees in exercising these
rights.
WESTERN SAW MANUFACTURERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60- consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5229.
A & A Maintenance Corporation and Renny Rose and Vincent
Gueci. Cases Nos. 2-CA-10491 and a-CA104.91-Z December 7,
1965
DECISION AND ORDER
On September 17, 1965, Trial Examiner Paul Bisgver issued his
Decision in the above-entitled proceeding, finding that the Respondent
155 NLRB No. 127.