ABCO Engineering Corp.

National Labor Relations Board - Board Decisions

Feb 6, 1973

201 N.L.R.B. 686 (N.L.R.B. 1973)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ABCO Engineering Corp. and Lawrence McCleery. APPENDIX
Case 18-CA-3214
February 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On May 8, 1972, Administrative Law Judge'
George L. Powell issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and General Counsel filed limited exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record2 and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order with certain modifications.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
ABCO Engineering Corp., Oelwein, Iowa, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified below:
1. Delete from paragraph 2(d) of the recommend-
ed Order the phrase "or its successor."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
x The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Drv Wall
Products, Inc. 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings.
Contrary to Respondent's contentions , our careful examination of the
record and the Administrative Law Judge' s decision reveals no bias or
prejudice Contrary to Respondent 's allegations , he conducted the hearing
in an evenhanded manner and did not unfairly restrict Respondent's
examination or cross-examination of witnesses
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we have violated the
law and has ordered us to post this notice.
WE WILL NOT interrogate our employees about
their union activities in a manner constituting
interference , restraint , or coercion in violation of
Section 8(a)(I) of the Act.
WE WILL NOT discharge employees because of
their activities on behalf of ABCO Employees
Union, or any other labor organization.
Since the Board found that we violated the law
when we fired Keith A. Annis, Fred H. Barth,
Robert C . Brant, Harold Harper, James Holtz-
man, Lynn L. Landis, L. D. McClerry, Kenneth
W. Meyer, Larry Mohlis, Robert Patridge,
Charles Schuchhardt, Rollyn D. Stedman, Manu-
el Villa, and Lewis J. Wolfs, WE WILL offer them
their jobs back (if not already reinstated),
discharging replacements if necessary or, if such
jobs no longer exist, offer them substantially
equivalent employment, and pay them for any
loss of pay they may have suffered because we
fired them.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives 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
such activities.
WE WILL, upon request, bargain collectively
with ABCO Employees Union in the following
unit of employees with respect to rates of pay,
wages, hours of work, and other conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment:
All full-time and regular part-time prod-
uction and maintenance employees in the
Employer's Oelwein, Iowa, operation; ex-
cluding office clerical employees, profession-
al employees, casual employees, and supervi-
sors as defined in the National Labor
Relations Act, as amended.
201 NLRB No. 110
ABCO ENGINEERING CORP. 687
ABCO ENGINEERING
CORP.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals if presently serving in the Armed Forces of
the United States, of their right to full reinstatement
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 316 Federal Building, 110 South
Fourth Street, Minneapolis, Minnesota 55401, Tele-
phone 612-725-2611.
TRIAL EXAMINER'S DECISION
Preliminary Statement
GEORGE L. POWELL, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. 151, et seq. (Act),
based on a complaint and notice of hearing issued
by the Acting Regional Director for the Region 18 of the
National Labor Relations Board (Board) on October 7,
1971, founded upon a charge filed by Lawrence McCleery,
an individual , on May 5, 1971, was tried before me in
Oelwein, Iowa, on November 30, December 1, 2, and 3,
1971, with all parties participating throughout by counsel,
who also filed briefs.' Those briefs, together with the entire
record, as made at the trial, have been carefully consid-
ered.
The issues presented are (1) whether the group of
employees later identified as ABCO Employees Bargaining
Union, herein called Union, is a labor organization within
the meaning of Section 1(5) of the Act; (2) whether on
April 28, 1971, a majority of Respondent's employees in an
agreed-upon unit, set out hereinafter, had designated the
Union as their duly authorized collective-bargaining
representative; (3) whether the Union requested recogni-
tion and Respondent refused to bargain in good faith with
it in violation of Section 8(a)(5) of the Act; (4) whether
Respondent committed certain independent violations of
Section 8(a)(1); and (5) whether Respondent discharged
certain employees in violation of Section 8(a)(3) of the Act.
In its duly filed answer, Respondent, while admitting
certain allegations of the complaint, denied the commis-
sion of any unfair labor practices.
Upon the entire record, my observation of the witnesses
as they testified , and the briefs filed by Respondent and
General Counsel, I find , for the reasons hereinafter set
forth, that the General Counsel has established by a
preponderance of the evidence that Respondent violated
Section 8(a)(1), (3), and (5) of the Act as alleged in the
complaint.
FINDINGS AND CONCLUSIONS
1. PARTIES ; JURISDICTION
At all material times Respondent , ABCO Engineering
Corp., an Iowa corporation with offices and principal
places of business located at Oelwein, Iowa , was engaged
in the manufacture and sale of conveyors and other
material-handling equipment . Respondent 's total annual
sales exceeded $175,000 of which goods and services
valued in excess of $100,000 were sold and shipped from
Iowa to customers located outside of Iowa . Also, Respon-
dent annually purchased goods originating outside Iowa
valued in excess of $50,000 for use in those manufacturing
operations within Iowa.
I find that at all material times Respondent has been,
and is , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Credible evidence was adduced at the trial that all 15 of
the employees of Respondent in the appropriate unit met
and agreed to present and through two spokesmen did
present a demand entitled "Employees Agreement," to
Respondent on April 28, 1971, involving wages, hours, and
terms and conditions of employment . Credible evidence
was also adduced that the employees later on agreed to call
themselves the ABCO Employees Bargaining Union, and
on May 4, 1971, picketed Respondent with a picket sign
reading : "ABCO Refuses to Bargain With ABCO Employ-
ees Union In Good Faith." 2 Accordingly, I find that the
group of employees identified later on as ABCO Employ-
ees Union constituted a labor organization within the
meaning of Section 2(5) of the Act.
Jurisdiction is properly asserted in this proceeding.
11. THE ALLEGED UNFAIR LABOR
PRACTICES
Robert R . Ruark, as president, and his wife , Virginia E.
Ruark , as secretary -treasurer , organized Respondent and
began manufacturing conveyors over 4 years ago. As
business increased , they added employees as needed until
by April 1971 there were 15 employees in a unit of:
All full-time and regular part-time production and
maintenance employees in the Employer's Oelwein,
Iowa, operation ; excluding office clerical employees,
professional employees , casual employees , and supervi-
sors as defined in the National Labor Relations Act, as
amended.3
Following a tornado that partially destroyed the town of
I The time for filing briefs was extended twice until January 31, 1972.
pursuant to requests by Respondent
Y See G C. Exh. 9.
3 This unit was stipulated by the parties at the trial.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oelwein some 4 years ago , Respondent built its present
plant . Sometime before April 28, 1971,4 the employees had
met and decided among themselves to make certain
demands of Respondent.
A. The Demand-April 28, 1971
On April 28, 1971, immediately following the lunch-
break, duly designated employee spokesmen Kenneth
Meyer and Lynn Landis presented Mr. Ruark with a sheet
of paper containing the following information:
EMPLOYEE: AGREEMENT
We, the undersigned , because of low salary and poor
working conditions at ABCO Engineering, agree that
the following changes must be made in order to comply
with the cost of living and safety standards, date
effective May 6, 1971.
1. WAGES
Starting salary-$2.50 across the board
After three month probation-$2.75
Sixth month-$3.00
One year-$3.25
Second year-This will depend upon a year to year
inflation basis
II. WORKING CONDITIONS:
1. Lifting hoist-safety hazard
2. Painting outside or apart from main building
3. Sufficient ventilation for welding fumes
4. Sufficient goggles and shields
III. ADDITIONAL CHANGES
1. Grievance committee elected
2. Hours-7:00 am-4:30 pm (30 minute noon)
This document then carried the signatures of the stipulated
total complement of employees on Respondent 's payroll,
on that date in the above unit , listed alphabetically as
follows:
Keith A . Annis Larry Mohlis
Fred H. Barth Robert Patridge
Robert C. Brant Charles Schuchhardt
Harold Harper Rollyn D. Stedman
James Holtzman Manuel Villa
Lynn L. Landis Lewis J. Wolfs
L. D. McCleery Rick Zanatta
Kenneth W. Meyer
According to Meyer's credited testimony ,5 Ruark want-
ed to know how this action had come about and Meyer
told him that the employees had gotten together and had
drawn up the document . Ruark told them the wage
disclosure violated a strict rule not to divulge wages. In the
words of Meyer, "And he also said that he was very
unhappy that we had gotten together to bring this to him.
That we couldn't have come in one at a time or as
individuals and presented the problem to him . The fact
that all these men appeared here , that we had gotten
together and done this together and brought it in."
As for the paint fume grievance , Ruark asked them if
4 All dates are in 1971 unless otherwise indicated
5 Meyer's testimony was corroborated by other witnesses for the General
they had done any research on the cost of an exhaust fan
or how much it would cost to put up a building to paint in
with adequate ventilation . He told them it would cost
$50,000 to put up a building that would pass inspection for
spray painting , and he didn 't have the money to build an
adequate building . Ruark mentioned , "that maybe . . . he
should close the shop ." Meyer argued not to do that
because the men needed the money and it wasn 't necessary
to close down , but all Ruark needed to do was to go over
the paper "and come to some kind of a conclusion or give
us some kind of an answer." This discussion lasted about 2
hours , and, as it was concluding (around 3:15 p.m .), Ruark
wanted to know what the "or else" would be if he didn't
agree to the proposals . Meyer replied that he did not know
but would have to go back to the group and have the
employees decide what they would do if the "demands
were thrown out" or "if he [Ruark ] wouldn't bargain."
Ruark and Meyer went into the plant where all the
employees were on their coffeebreak and Ruark gave a talk
to them . Among other things,
... he said that he was very unhappy we had gotten
together and that we could have come to him as
individuals and this was a form of communism and
socialism that we had banded together, that we should
have just come to him as individuals.
Ruark then wanted to know what the alternative would be
for the employees if he wouldn ' t consider the proposals.
Ruark returned to his office leaving the employees to
discuss and decide this issue . They decided : ( 1) to lower
their demands and ask for a 25-cent raise per individual;
(2) that something "definitely" should be done about the
paint fumes ; and (3) that they should have a grievance
committee which could meet with Ruark and discuss plant
problems . If these demands were not met , "we were
prepared to walk out." Zanatta , only, would not agree to
walk out.
The group again met with Ruark and told him of the
reduced demands and wanted him to think them over and
give them an answer . He wanted to know what would
happen if he didn 't agree, "and we said we were going to
walk out, or we were prepared to walk out." They also told
Ruark that Zanatta would not join a walkout.
Ruark then stated, "We will close the plant for the day."
Meyer then told Ruark he didn 't think the plant needed to
be closed as "the men needed the money ." Ruark replied,
"Well we will just close the plant for the day and the men
can go home ." He told them that Zanatta, together with
the shop foreman , and plant engineer "would stay and
build conveyors." All of the employees punched out except
Zanatta who stayed and made conveyors, with the shop
foreman and plant engineer for the rest of the day. The
time was "approximately 3:45 or 4 o'clock" and the
scheduled workday was until 5 p.m.
Conclusions as to the workday of
April 28
By closing the plant for the remainder of the day on
April 28 to all employees but Zanatta, I find that
Counsel
ABCO ENGINEERING CORP.
Respondent discriminated against the employees because
they were acting in concert over demands relating to
wages, hours, and working conditions. This interfered with,
restrained, or coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act and, in so doing,
Respondent violated Section 8(a)(1) of the Act .6 This
discrimination resulted in loss of pay to the employees
affecting as it did the tenure of their employment. I find
that Ruark closed the plant in retaliation for the concerted
action of the employees, and to discourage them in their
protected union activities. He testified that he did it
because they were all so shook up they were "not going to
get any work done today ...." This statement is beyond
belief as he did get work done that day by Zanatta and the
supervisors and there is no evidence that they were any less
"shook up" than the others. Accordingly, the plant
shutdown violated Section 8(a)(3) of the Act.7 By closing
the plant to all employees but the one employee who
refused to strike to enforce the groups' bargaining position,
Respondent showed the other employees that they too
could work if they gave up their protected activity.
Likewise Ruark told Meyer and Landis that "he was very
unhappy that we had gotten together to bring [the
demands] to him" and indicated he favored bargaining
with them on an individual basis. This remark plus the
plant shutdown was an effort to undermine the Union and
destroy its majority and amounts to a refusal to bargain in
good faith within the meaning of Section 8(a)(5) of the
Acts as Meyer and Landis were the representatives of all
of the employees.
B. The Evening of April 28
On the evening of Wednesday, April 28, Ruark tele-
phoned the employees,9 one at a time, and, with his wife on
the extension, asked each one certain questions, in effect,
as follows:
1. Do you, as an individual, ascribe to the demands as
presented?
2. Do you, as an individual, state that unless ABCO
complies with said terms you will terminate your
employment?
3. Do you refuse to negotiate employment on an
individual contractual basis?
They all testified, and I credit their testimony, that they
stood together and refused to negotiate individually and
they would not quit although Ruark attempted to force
them to say "yes" to question No. 2. McCleery testified he
was "forced" to say "yes" to question No. 2 but at no time
did he want to quit.
6 Sec. 7 of the Act reads as follows:
Employees shall have the right to self-organization , to form, join, or
assist labor organizations , to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all of
such activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3).
Sec. 8(a)(I) of the Act reads as follows:
It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of
the right guaranteed in section 7:
7 Sec. 8(a)(3) of the Act reads as follows:
689
I find these telephone inquiries to be a violation of
Section 8(a)(1) and (5) of the Act. As to Section 8(a)(l),
such questioning interfered with and coerced the employ-
ees into abandoning their group action engaged in earlier
that day. Polling employees as to their group allegiance
violates the law unless adequate safeguards are used. There
were no safeguards here and hence the violation. As to
Section 8(a)(5), the questioning bypassed the duly elected
representatives and the Employer attempted to bargain
directly with the individual employee. This is contrary to
the theory of collective bargaining embodied in the Act
and is illegal.
After the phone conversation on the evening of April 28
and during the day of April 29, Ruark wrote letters to those
employees he had telephoned substantially as the following
letter to Annis:
ABCO ENGINEERING CORP.
801 Second Avenue S.E.
Oelwein , Iowa 50662
319-283-5652
April 29, 1971
Mr. Keith A. Annis
606 4th Ave. NE
Independence, Iowa 50644
Dear Keith:
Because the following questions were acknowledged in
the affirmative, we accept your resignation as of this
date.
1. Do you, as an individual, ascribe to the demands as
presented? You answered "Yes".
2. Do you, as an individual, state that unless ABCO
complies with said terms you will terminate your
employment? .... You said "Yes".
You further refused to negotiate employment on an
individual contractual basis.
We regret, Keith, that you have terminated your
employment, without good cause.
Very truly yours,
ABCO ENGINEERING CORP.
/s/ Robert W. Ruark
Robert W. Ruark
President
RWR:ver
It shall be an unfair labor practice for an employer-
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization:
8 Sec. 8(a)(5) of the Act reads as follows:
It shall be an unfair labor practice for an employer-
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a).
9 Those who testified to the calls were : Meyer, Annis, Brant, Stedman,
Landis, Villa, and McCleery. The testimony of these employees is credited
as against any contrary testimony of Ruark. Differences in the testimony of
the employees are insubstantial and the facts are pieced together from the
total testimony of these employees.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This letter is a further effort by Respondent to
undermine the group action to destroy its majority status,
and like the telephone conversations above, it violates
Section 8(a)(1) and (5) of the Act. Additionally, it violates
Section 8(a)(3) of the Act by terminating the employment
of those who refused to abandon their protected group
action. The plant shutdown of slightly more than 1 hour on
April 28 now became a permanent discharge.
C. The Recall to Work
As of Saturday, May 1, 4 ( including Zanatta) of the 15
employees who had presented their original demands on
April 28 had defected from the group and were working at
the plant.10 Respondent had also hired one replacement.
Ruark admitted sending a letter to each of the remaining
I I employees on May 1 similar to the one he sent Meyer as
follows:
May 1, 1971
Mr. Ken Meyer
407 North Frederick
Oelwein, Iowa 50662
Dear Ken:
This is an unconditional offer for you to return to work
on Monday, May 3, 1971.
If you fellows would rather have your own committee
represent you in regard to your grievances or problems
-although I would prefer dealing with each indivi-
dual-if that's what you want, I can, after thinking it
over, go along with it. We can work out our problems
together, as we have in the past.
We will expect to see you Monday.
Very truly yours,
ABCO ENGINEERING CORP.
Robert W. Ruark
President
P.S. This confirms our telephone conversation of
Saturday Morning, May 1, 1971
RWR:ver
As noted in the P.S. above, in addition to the letter,
Ruark, on Saturday, May 1, telephoned and spread the
word for the employees to report for work on Monday
morning, May 3.
All of the remaining 11 employees (with the exception of
Meyer who had an emergency and could not report)
reported dressed for work about 7:15 a.m. Monday, May 3.
Work was to begin at 7:30 a.m. They all agreed to send in
their representatives, McCleery11 and Landis, agreeing
among themselves not to work if something didn't happen
10 Ruark admitted that Harper and Schuckhardt came back to work on
April 29 Brandt testified that he returned on April 30. He further testified
he was again called on April 29 by Ruark and after visiting with Ruark on
that evening agreed to Ruark 's terms of abandoning the employees' group
and returning as an individual at his same pay. When he testified , Brandt no
longer was an employee of Respondent . He impressed me as being a
credible witness and I credit his testimony . Although the April 29 incident
was not alleged as a specific violation of Sec 8(a)(l) and (5) of the Act, it
to their demands. A new concern had developed. The
employees were not sure from a reading of the letter that
they were returning individually or as a group and whether
the term "unconditional" applied to their return or to
Ruark's offer. Ruark refused to recognize the two as the
representatives without a designation . Accordingly, they
returned to the group at the parking lot where McCleery
wrote out the following designation which was signed by
the employees listed:
May 3 rd 1971
7:30 a.m.
L.D. McCleery and Lynn Landis have been elected to
discuss wage and safety regulations for ABCO employ-
ees.
Rollyn Douglas Stedman
Fred H. Barth -
Lewis J. Wolfs
Manuel Villa -
James Holtzman -
Robert Patridge
Larry Mohlis
Keith A. Annis
McCleery and Landis returned to Ruark with the
designation but he then refused to meet and bargain with
them, telling them he was busy and for them to return to
work and he would set up a meeting at another time.
Landis told Ruark that they just wanted to discuss the
letter and would go back to work. He refused to discuss the
letter. McCleery and Landis returned to the group and told
them what happened and they decided not to return to
work under those terms and to picket the plant.
D. Picketing
Picketing took place the following 2 days (May 4 and 5)
with one picket sign reading : "ABCO Refuses to Bargain
With ABCO Employees Union In Good Faith" and
another reading: "Unsafe Working Conditions." McCleery
never picketed but all of the remaining employees picketed
the first hour and thereafter on a schedule so that two men
would picket for 4 hours.
As noted above, McCleery filed the charge against
Respondent on May 5.
Conclusions on the recall to work and picketing
Ruark's letter of May I was not an "unconditional" offer
to the employees to return to work such as would stop the
running of backpay to the 14 employees discharged on
April 28, 12 because it was ambiguous. Once the employees
had engaged in their union activities (which in law is no
more than agreeing among themselves to bargain collec-
tively with their employer over wages and hours and
conditions of employment through a duly selected repre-
sentative or representatives) the Employer no longer can
does add evidence that Ruark had union animus and was attempting to
drive the employees out of the group and back to individual bargaining as
opposed to collective bargaining in violation of Sec 8(a)(1) and (5) of the
Act
i i McCleery replaced the absent Meyer
12 Of course . backpay ceased to run on those who had resumed work
individually at the time they resumed working.
ABCO ENGINEERING CORP.
"work out our problems together, as we have in the past."
The past was based on individual arrangements and these
no longer were legally possible. Yet the Employer in this
case apparently persisted in trying to bargain illegally on
an individual basis with his employees. Illustrations of this
persistence have been set out above.13
Inasmuch as the letter of May 1 has been found not to be
an unconditional offer to return to work, the Respondent
violated Section 8(a)(5) again by refusing to bargain with
the representatives of its employees unless they first
returned to work and then only when Respondent would
set the time. The action of Ruark's first refusing to meet
with McCleery and Landis without a designation and then
refusing to meet until some time later after the employees
returned to work suggests that Respondent never intended
to bargain in good faith with the employees' representa-
tives.
The employees were ready to go to work on May 3, 1971,
on substantially the same terms as when they were fired on
April 28. Respondent's refusal to take them back contin-
ued his violation of Section 8(a)(3) and (1) of the Act.
Accordingly, it is not necessary to decide whether the
employees' action after Respondent's refusal to put them
to work constituted a strike because the remedy for the
discharged employee is the same. Assuming, arguendo, that
such a decision is necessary, it is clear that they were
protesting the Respondent's unfair labor practices and
such a protest falls under the category of an unfair labor
practice strike. Unlike an economic strike, employees
engaging in an unfair labor practice strike are entitled to
reinstatement to their old jobs upon application even if the
Employer has to discharge a replacement to effect the
reinstatement.
E. May 5 and 6
On the evening of May 5, McCleery telephoned Ruark
saying "we had disbanded our group" and said, "you win,
we lose," and told Ruark "we were ready to talk more or
less on his terms, not ours." As a result of this conversation
McCleery prepared and signed a letter the next day,
delivering it on the same day to Ruark, "for the ABCO
employees" as follows:
We are agreeable, as a group, to return to work (as a
group) under same hourly pay with no loss of vacation
benefits but to have our paint-fume problems solved by
November 1, 1971.
McCleery admitted that the letter was prepared because
Ruark indicated to him that he was confused as to whether
there was still a group or whether they were individuals.
This should have indicated to him that they were ready to
work as a group-a lawful position to take and substantial-
ly the same as the position they had on April 28 when they
were fired. When he presented the letter to Ruark,
McCleery told him he was "ready to talk on reduced
demands." Ruark agreed to meet on May 10.
In the meantime Ruark was violating Section 8(a)(1) and
(5) of the Act by talking individually to Landis and Villa.
After a conversation with Ruark, Landis returned to work
13 Ruark maintained that the spokesmen for the group told him the
employees had these demands but they didn 't want a union and thusly he
felt free to telephone them and deal with them on an individual basis
691
at his old rate of pay on May 8. Villa talked with Ruark on
May 8 about coming back to work as an individual but was
not taken back until May 13. Ruark violated the law as
noted because he was still under an obligation to bargain
with McCleery, the representative of his employees ' union.
If the Union had lost its majority by this time , it had been
caused by the unfair labor practices of the Respondent.
And an employer cannot justify refusing to bargain
collectively and, instead , bargaining individually on the
ground that the Union lost its majority status where the
loss of majority status is attributable to the unfair labor
practices of the employer . Respondent was obligated to
bargain over paint fumes and terms of a return to work.
F. May 10
On May 10, McCleery, Wolfs, Patridge, Mohlis, Barth,
and Meyers met with Mr . and Mrs . Ruark and three others
for the Respondent . Ruark wanted the employees to sign
the May 6 letter of McCleery, which was done, then asked
what they wanted to talk about. (By this time 6 of the
original 15 were working for the Respondent at the same
rate of pay they were receiving on April 28.) They said,
"Pay" and they didn 't want to lose vacation benefits on
account of their discharges and they wanted the paint
fumes corrected by September (the fumes not being so bad
with the doors open during the summer). Although they
had reduced their pay demands , Mrs. Ruark mentioned a
new pay of $2.15 per hour for each of them . This was less
than some were earning when discharged on April 28; e.g.,
McCleery was making $2.65 when sent home on April 28.
The employees caucused briefly and replied that the
NLRB charges would be dropped if they could get $2.25
per hour . Finally, before the meeting broke up each of the
employees was willing to work for $2.15 per hour. The time
for the paint fumes to be corrected was changed to
November 1. McCleery testified, "We wanted to get back
to work ." (They agreed to come back as a group but be
individuals thereafter.) Ruark decided they would have to
have another meeting and a meeting was arranged for May
13.
On May 13 the same persons met but there was no
bargaining . Instead of bargaining, Mrs. Ruark read a
prepared statement in which , among other things, the
employees were told they had been replaced.
Conclusions as to the meetings on May 10 and 13
Again the Respondent refused to bargain in good faith in
violation of Section 8(a)(5) of the Act. No effort was made
by it for meaningful bargaining. It had beaten down the
efforts of its employees to bargain collectively by illegal
means as set out above. Respondent's final refusal to
reinstate the employees on the asserted ground that they
had been replaced again violates Section 8(a)(1) and (3) of
the Act, as a replacement has no tenure to a job as against
the employee who had been unlawfully discharged from it,
and, in any event, they were unfair labor practice strikers
Whether or not the employees meant a "union" affiliated with a national
labor organization is immaterial because their very actions constituted the
group into a "union " as a matter of law.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and cannot, as such, be refused reinstatement on the THE REMEDY
ground of replacement.
CONCLUSIONS OF LAW
1. ABCO Engineering Corp. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The group of employees identified as ABCO Em-
ployees Union, is a labor organization within the meaning
of Section 2(5) of the Act.
3. An appropriate unit of employees for purposes of
bargaining collectively with Respondent was the stipulated
unit of:
All full-time and regular part-time production and
maintenance employees in the Employer's Oelwein,
Iowa, operation; excluding office clerical employees,
professional employees, casual employees, and supervi-
sors as defined in the National Labor Relations Act, as
amended.
4. ABCO Employees Union represented a majority of
the employees in the appropriate unit at all times pertinent
to this case.
5. By refusing to bargain in good faith with ABCO
Employees Union on April 28, 1971, and thereafter,
Respondent violated Sections 8(a)(1) and (5) and 2(6) and
(7) of the Act.
6. By bargaining directly with employees and by asking
them to return as individuals, rather than with their
collective-bargaining agent, Respondent violated Sections
8(a)(1) and (5) and 2(6) and (7) of the Act.
7. By discriminating against Keith A. Annis, Fred H.
Barth, Robert C. Brant, Harold Harper, James Holtzman,
Lynn L. Landis, L. D. McCleery, Kenneth W. Meyer,
Larry Mohlis, Robert Patridge, Charles Schuchhardt,
Rollyn D. Stedman, Manuel Villa, and Lewis J. Wolfs by
closing the plant on April 28, 1971, and finally discharging
them on April 29 in order to discourage their membership
in ABCO Employees Union, Respondent violated Sections
8(a)(3) and (1) and 2(6) and (7) of the Act.
8. By attempting to induce individual employees to
return to work by personal phone calls and conversations,
Respondent violated Sections 8(a)(1) and 2(6) and (7) of
the Act.
9. By polling the employees individually on April 28,
1971, as to whether they were going to keep to their group
action, Respondent violated Sections 8(a)(1) and 2(6) and
(7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section II, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend below that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent's unfair labor practices strike at the
heart of the rights guaranteed employees by Section 7 of
the Act. The rights involved are closely related to other
rights guaranteed by Section 7. The Company's independ-
ent violations of Section 8(a)(1) evince a general hostility to
the right of employees to engage in legitimate concerted
activities and because of the nature of the unfair labor
practices found, there is reasonable ground to believe that
Respondent will infringe upon such other rights in the
future unless appropriately restrained. Therefore, in order
to make effective the interdependent guarantees of Section
7, I shall recommend an order below which will have the
effect of requiring the Respondent to refrain in the future
from abridging any of the rights guaranteed employees by
Section 7.
Having found that Respondent has discriminatorily
discharged Keith A. Annis, Fred H. Barth, Robert C.
Brant, Harold Harper, James Holtzman, Lynn L. Landis,
L. D. McCleery, Kenneth W. Meyer, Larry Mohlis, Robert
Patridge, Charles Schuchhardt, Rollyn D. Stedman, Manu-
el Villa, and Lewis J. Wolfs, I will recommend that
Respondent be ordered to offer immediate and full
reinstatement, if not already reinstated, to their former or
substantially equivalent positions, discharging replace-
ments if necessary, and make them whole for any loss of
earnings they may have suffered because of the discrimina-
tion against them, by payment to them of a sum of money
equal to the amount of wages they would have earned from
the date of the discrimination to the date of the offer of
unconditional reinstatement together with interest thereon
at the rate of 6 percent per annum and that the loss of pay
and interest be computed in accordance with the formula
and method prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716, to which the parties hereto are
expressly referred.
Having found that Respondent has refused to meet and
bargain in good faith with the Union, the majority
representative of the employees in an appropriate unit, I
will order it to do so and reduce to writing any agreement
they may reach.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
and.pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 14
ORDER
Respondent , ABCO Engineering Corp., its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
14 In the event no exceptions are filed as provided by Sec. 102.46 of the 102 .48 of the Rules and Regulations be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings, conclusions, and Order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.
ABCO ENGINEERING CORP.
in a manner constituting interference , restraint, or coercion
in violation of Section 8(axl) of the Act.
(b) Discouraging membership in ABCO Employees
Union, or any other labor organization of its employees, by
discharging its employees or closing the plant to them
because of their concerted or union activities, or in any
other manner discriminating in regard to their hire or
tenure of employment or any term or condition of
employment.
(c) Refusing to meet and bargain with the majority
representative of the employees in the previously described
appropriate unit.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form labor organizations, to join or assist
the ABCO Employees Union, or any other labor organiza-
tion, to bargain collectively through representatives 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 such activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Keith A. Annis, Fred H. Barth, Robert C.
Brant, Harold Harper, James Holtzman, Lynn L. Landis,
L. D. McCleery, Kenneth W. Meyer, Larry Mohlis, Robert
Patridge, Charles Schuchhardt, Rollyn D. Stedman, Manu-
el Villa, and Lewis J. Wolfs immediate and full reinstate-
ment, if not previously reinstated, to their former or
substantially equivalent positions, discharging replace-
ments if necessary, without prejudice to all rights and
privileges to which they are entitled and make them whole
in the manner set forth above in the section entitled "The
Remedy."
15 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
693
(b) Preserve until compliance with any order for
reinstatement or backpay made by the Board is effectuat-
ed, and make available to the said Board and its agents,
upon request, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records, relative
to a determination of the amount of backpay due, and to
the reinstatement and related rights provided under the
terms of any such order.
(c) Notify the above-mentioned employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application and in
accordance with the Selective Service and Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(d) Upon request, bargain in good faith with ABCO
Employees Union, or its successor, the majority represent-
ative of the employees in an appropriate unit, and reduce
to writing any agreement they may reach.
(e) Post at its Oelwein, Iowa, place of business, copies of
the attached notice marked "Appendix." 15 Copies of said
notice, on forms provided by the Regional Director for
Region 18, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the said Regional Director, in writing within
20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.16
16 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 18, in writing, within 20 days
from the date of this Order. what steps Respondent has taken to comply
herewith."